Government formation and some questions

Print edition : May 26, 2001
T.S.SUBRAMANIAN

ON a sweltering summer's morning in Chennai on May 14, the 133 newly elected All India Anna Dravida Munnetra Kazhagam legislators who had gathered at the AIADMK headquarters elected their general secretary Jayalalitha the Leader of the Legislature Party. But as applause rang out in the hall, she remained unsmiling and silent. And immediately thereafter Jayalalitha met Governor M. Fathima Beevi and handed over to her the text of the resolution passed by the Legislature Party, electing her its leader. It said: "This meeting categorically decides that it will not accept anybody or even consider anybody other than the party general secretary as the Leader of the Legislature Party."

Jayalalitha's mood had changed visibly by the time she drove out of the Raj Bhavan, waving to the waiting crowd. About 30 minutes later a Raj Bhavan press release revealed the reason for this. It said: "The Governor has invited Jayalalitha to form the Ministry at the earliest and asked her to send the list of persons to be appointed as Ministers with their portfolios." The decision immediately came under attack from Dravida Munnetra Kazhagam president and outgoing Chief Minister M. Karunanidhi, former Union Finance Minister P. Chidambaram, Janata Party president S. Subramanian Swamy and others. Karunanidhi said: "If this is right, then Laloo Prasad Yadav also should be allowed to become Chief Minister." (The Rashtriya Janata Dal leader had resigned as Chief Minister when a court framed charges against him in a fodder scam case.) The DMK Legislature Party, which met under the presidentship of Karunanidhi on May 18, decided to boycott the Governor's address to the Assembly on May 25.

The debate over Jayalalitha arose after she was disqualified from contesting the elections under Section 8(3) of the Representation of the People Act (RPA), as she had been convicted and sentenced to three years' and two years' rigorous imprisonment for corruption in two cases. Her nominations to contest from four constituencies were rejected by the Returning Officers. The RPA also barred candidates from contesting from more than two constituencies simultaneously.

About five hours after Jayalalitha met Fathima Beevi, the Governor had her sworn in Chief Minister in what Jayalalitha herself termed a "smooth transition of power". Four legislators were also sworn in Ministers: D. Jayakumar, C. Ponnaiyan, M. Thambidurai, R. Saroja and K. Ayyaru Vandaiyar.

The swearing-in ceremony was attended by leaders belonging to the AIADMK's alliance partners: G.K. Moopanar of the Tamil Maanila Congress, N. Sankaraiah of the Communist Party of India (Marxist) and R. Nallakannu of the Communist Party of India. Also present was N. Haribhaskar, Chief Secretary during Jayalalitha's earlier tenure as Chief Minister: he was convicted and sentenced to five years' imprisonment by a Special Judge in May 2000 in the "colour television case", and is out on bail now. His trial is also under way in the "coal case" and the "disproportionate wealth case".

Jayalalitha later told reporters: "Everything happened in a rush. I myself did not expect that I would be sworn in today itself. Everything has taken place very smoothly. I am very happy..." On May 19, she expanded her Cabinet by including 19 more Ministers.

Jayalalitha now has to get elected to the Assembly within six months to be able to continue as Chief Minister. Whether she can do this depends on the verdict of the Madras High Court in two appeals she has filed challenging her convictions and sentences in the two TANSI (Tamil Nadu Small Industries Corporation) cases.

Opinion was divided on whether Jayalalitha was eligible to be sworn in Chief Minister. Senior Advocate N. Natarajan, Chidambaram, Subramanian Swamy and others asked how she could get elected when the disqualification had started under the RPA from the date of conviction and continued for six years even after she served the sentence. They argued that even after six months she would suffer the same disqualification. But she could contest if the High Court set aside her conviction.

On the other side, 'Cho' S. Ramaswamy, advocate, and Editor, Thuglak, and Vaiko, general secretary, Marumalarchi Dravida Munnetra Kazhagam (MDMK), among others, said that there was no legal bar on the Governor swearing-in Jayalalitha but that convention demanded that she opt out of the chief ministership. Vaiko said: "Jayalalitha should not have accepted the chief ministership on moral grounds. If she had made somebody else the Chief Minister in her place, it would have added lustre to democracy."

The DMK Legislature Party attacked the Governor's decision and said it was "totally violative of the provisions in the Constitution." Its resolution recalled that the same Governor had given permission to the State government to prosecute Jayalalitha because there was prima facie case that she had committed "criminal acts" as Chief Minister (1991-1996), that she had "acquired properties" abroad and that she had "violated the law".

Chidambaram said Fathima Beevi had set "a wrong precedent" and created "legal problems". "It is surprising that the Governor did not consult the Attorney-General of India. This problem of going to the court cannot be avoided."

Subramanian Swamy said Fathima Beevi's invitation to Jayalalitha to form the government had brought "ignominy by this patent sacrifice of the rule of law at the altar of expediency." He compared the Governor's action with that of Kerala Governor S.S. Kang, who reportedly expressed reservations about Kerala Congress(B) leader R. Balakrishna Pillai, convicted in a corruption case, becoming Minister in the A.K. Antony Cabinet. (So Antony did not insist on Balakrishna Pillai being sworn in a Minister.) Swamy said that hence applying Jayalalitha's own "dictum" that she should be given the same treatment as Balakrishna Pillai was given, Jayalalitha should either resign or the Governor should seek her resignation.

Jayalalitha claimed that the Governor was right in inviting her to form the government. Fathima Beevi was a retired Supreme Court Judge and so "no one need to teach her about the law and the Constitution." And a Governor's decisions were not justiciable, she said.

Moopanar and Tamil Nadu Congress Committee president E.V.K.S. Ilangovan claimed that the people's verdict was that Jayalalitha should become Chief Minister.

Attention will now be on Jayalalitha's appeals in the High Court challenging her conviction in two cases.

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