Can she or can't she?

Print edition : April 28, 2001

CAN Jayalalitha contest the elections? The decision is in the hands of the Election Commission and it will be known on April 24 when the Returning Officers of the two constituencies she is contesting from - Krishnagiri and Andipatti - take up her nomination papers for scrutiny.

The Election Commission came into the picture after Justice Malai Subramanian of the Madras High Court observed that there "may not be any disqualification" while dismissing the former Chief Minister's writ petitions seeking suspension of her conviction in two corruption cases. The judge pointed out that the High Court had already suspended the sentences of imprisonment pronounced by a trial court. Since "the conviction and sentence are inseparable twins in the eyes of the law," the moment the sentence is suspended, the conviction is deemed to have been suspended. "Under such circumstances, in my view, there may not be any disqualification for the petitioner to contest in the election." Referring to the petitioner's apprehension that in case she was disqualified from contesting the elections, her statutory right would be affected, he said: "All these aspects have to be placed before the Election Commission and not before this court."

The order lent itself to diametrically opposite interpretations, depending on which side of the political divide one stood. One section of observers says that Jayalalitha faces disqualification from contesting the elections under Section 8 (3) of the Representation of the People Act (RPA). They say that a person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2) ) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

AIADMK leaders saw the order as a positive one that would enable Jayalalitha to contest the elections. Law Minister Aladi Aruna of the Dravida Munnetra Kazhagam, however, said: "It is clear that she cannot contest the elections."

ON October 9, 2000, P. Anbazhagan, Special Judge, Chennai, convicted and sentenced Jayalalitha to three years' rigorous imprisonment in the "Jaya Publications case," one of the two cases relating to a deal involving the land of the Tamil Nadu Small Industries Corporation (TANSI). In the other case, the "Sasi Enterprises case," she was convicted and sentenced to two years' rigorous imprisonment. Her close associate Sasikala Natarajan received similar sentences. The sentences were handed down under Sections 120-B (punishment of criminal conspiracy) and 409 (criminal breach of trust by public servant or banker, merchant or agent) of the Indian Penal Code (IPC) and Sections 13 (2) and 13 (1) (c) and (d) of the Prevention of Corruption Act.

Jayalalitha appealed to the High Court, which suspended the sentences and granted her bail in November 2000. She filed writ petitions in April 2001 seeking suspension of the convictions so that she could contest the elections. She said that in a democracy, "we should take pride in allowing the public to choose their leader freely, rather than crippling the will or in maiming the voice of the public by focussing on trial court judgments only."

When her petitions came up for hearing on April 9, N. Natarajan, Senior Advocate and Senior Public Prosecutor in the corruption cases against Jayalalitha, opposed her plea. He said that the spirit of the RPA's disqualification clauses was that persons convicted for criminal offences should not be allowed to contest elections. Natarajan quoted from the Election Commission of India's Order (No. 509/Disqln./97 - J.S.I.) dated August 28, 1997 that dealt with the issue of criminalisation of politics and participation of criminals in the electoral process as candidates. The Order said that the Commission had "carefully examined and considered" the question whether persons who had been convicted for offences mentioned in Section 8 of the RPA "can contest the elections during the period when they are released on bail, pending disposal of their appeals or applications for revision." The Commission observed that "this very question" had been considered by several High Courts and "they have taken the view that the release on bail does not wipe off the disqualification under Section 8 of the RPA." The Supreme Court had also said so, Natarajan said.

The Order said that the Election Commission, after taking "due note" of the judicial pronouncements of the Supreme Court and the High Courts, came to the "considered view" that the disqualification under Section 8 of the RPA "for contesting elections to the Parliament and the State Legislatures, on conviction for offences mentioned therein, takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of the bail..."

Natarajan noted that since the Order said that disqualification started from the day of conviction, it meant that people convicted should not be allowed to contest. The Supreme Court had similarly interpreted the object and reasons of the RPA, he said, pointing out that Jayalalitha's disqualification was total. According to him, in the case of a conviction of a person who is not a sitting member of an Assembly or Parliament, he should not be allowed to rule. The question was whether criminalisation of politics should be encouraged or put down, he observed, adding that in the interests of society, it should be put down. Moral conduct was the over-riding factor and the larger issue was corruption in public life, he said. Natarajan pointed out that the Supreme Court had said that if there was a conviction under the PCA, the moral conduct of the person came into play.

P.P. Rao, Senior Advocate and counsel for Jayalalitha, quoted from the orders of the Supreme Court and High Courts which said that the courts had the power to suspend conviction under the Code of Criminal Procedure (CrPC) if the damage that one would suffer would be irreversible in case he or she succeeded in the appeal. The Supreme Court had said the presumption of innocence should prevail throughout the period of appeal. The RPA itself, Rao contended, had made a distinction between convictions for different offences that would entail disqualification. These clauses mentioned grave crimes but not those referred to in the PCA under which the petitioner was sentenced. He said the if the court allowed Jayalalitha's plea now, she could contest. If she lost her appeal later, she would only lose her seat.

Rao said that disqualification of a politician for six years after he or she undergoes the sentence was too long a period, which could ruin his or her career.

According to Rao, the Supreme Court ruling (in 'the State of Tamil Nadu vs A. Jagannathan case') that convictions could not be suspended in cases involving the moral conduct of a person was applicable only to bureaucratic public servants. Countering this, Natarajan argued that it was applicable to all public servants, that is, bureaucrats and politicians.

In his 26-page judgment on April 11, Judge Malai Subramanian gave a new interpretation to the Code of Criminal Procedure. He said: "It can be safely held that the conviction and sentence are inseparable twins under the law. The moment the sentence is suspended, conviction is deemed to have been suspended. Otherwise, the framers of the Code would have taken care to provide for stay of conviction or suspension of conviction also."

The judge said that even in a case of ipso facto disqualification, only six years had been prescribed. But under sub-sections 2 and 3 of Section 8 of the RPA, the disqualification did not directly relate to the offence but to the period of sentence of imprisonment. Under these two sub-sections, the emphasis was only on sentence, and not on conviction, and the question of disqualification arose only when the person was sentenced to imprisonment for not less than two years under Section 8 (3) of the RPA. So, Justice Malai Subramanian said, "It is the sentence that disqualifies but not the offence. If the sentence of imprisonment is suspended, I do not think there may be any disqualification for a person to contest in the election. In this case, the sentence of imprisonment has already been suspended. Under such circumstances, in my view, there may not be any disqualification for the petitioner to contest in the election."

The reason given by Jayalalitha for seeking suspension of the conviction that would enable to contest the election - that is, she led one of the largest political parties in the coming elections and also headed a front comprising many political parties - was valid, the judge said. Had the conviction been under Section 409 of the IPC, he said, the court would not have hesitated to suspend the conviction if that was necessary to enable her to exercise the democratic right of contesting elections. "But since the conviction was also for an offence under Section 13 (1) (c) and (d) read with Section 13 (2) of the PCA, this court is unable to exercise its discretion in her favour," he ruled.

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