Exit Jayalalithaa

In a landmark verdict, the Supreme Court quashes the appointment of Jayalalithaa as the Chief Minister of Tamil Nadu. In doing so, the court also settles questions with regard to the eligibility of a person convicted of an offence to hold such office.

THE judgment of a five-member Constitution Bench of the Supreme Court quashing the appointment of Jayalalithaa as the Chief Minister of Tamil Nadu establishes a new orthodoxy: that constitutional legitimacy takes precedence over electoral legitimacy.

In the main judgment, delivered by Justice S.P. Bharucha, who also spoke for Justices Y.K. Sabharwal and Ruma Pal, the Bench held that a person who is disqualified from contesting elections to a legislative body cannot assume office in the executive branch of the government. It also held that membership of the legislature is a prerequisite for holding ministerial authority and the expedient clause that enables a non-member to assume office for a period of six months cannot be applied in the case of an individual who has been disqualified from contesting.

The Bench concluded that on the day Jayalalithaa was sworn in Chief Minister, she had been disqualified from membership of the legislature by reason of her convictions under the Prevention of Corruption Act (PCA) which had attracted terms of imprisonment in excess of two years. Under Section 8(3) of the Representation of the People Act (RPA), she was ineligible to contest the Assembly elections held in May.

The Bench interpreted Article 164(4) of the Constitution, which allows an individual to hold office as a Minister even without being a member of the legislature, to mean that such a person would be eligible to seek election. In the event of that person failing to secure a seat in the legislature within the stipulated time of six months, he or she would cease to be a Minister.

The Bench was confronted with two rival interpretations of Article 164(4). K.K. Venugopal, senior counsel for Jayalalithaa, suggested that the Article should be interpreted as it is, and since it is devoid of any qualifications or disqualifications, none could be read into it. In its final determination, however, the Bench ruled that this one clause of the Constitution cannot be read in isolation of the others. A Minister who secures appointment under Article 164(4) should satisfy the qualifications for membership of the legislature specified in Article 173 and should not suffer any of the disqualifications under Article 191 on the date of his or her appointment, it held.

The Bench added: "It would be unreasonable and anomalous to conclude that a Minister who is a member of the legislature is required to meet the constitutional standards of qualification and disqualification but that a Minister who is not a member of the legislature need not. Logically, the standards expected of a Minister who is not a member should be the same as, if not greater than, those required of a member." Drawing sustenance from the doctrine of the basic structure of the Constitution, the Bench held that it would be permissible for the court to read certain interpretations into the Constitution, based on its language, scheme and spirit. This doctrine was first articulated in the Supreme Court's judgment in the Keshavananda Bharati case in 1973, which pertained to Parliament's power to amend the Constitution.

Justice Bharucha's judgment is based on the reasoning that Jayalalithaa's appointment can be set aside without exploring the foundations of the decision of the person who appointed her. This has exempted the actions of the then Governor of Tamil Nadu, M. Fathima Beevi, from judicial scrutiny.

As the writ petitions only challenged Jayalalithaa's right to hold office as Chief Minister, the Bench claimed that it was not concerned with the Governor's exercise of discretion in swearing Jayalalithaa in. A writ of quo warranto lies against the person who, according to the petitioner, was not entitled to hold public office and has usurped one, explained Justice Brijesh Kumar in his concurring judgment. Article 361 of the Constitution exempts a Governor engaged in the discharge of her duties from judicial scrutiny, but there is no impediment against examining whether a person appointed by the Governor is actually entitled to hold that office, said Justice Brijesh Kumar.

The issue is a tricky one and certain experts have expressed concern that the Bench has yielded too much to the discretionary powers of the Governor.

Justice Bharucha, for instance, has observed: "We are in no doubt at all that if the Governor is asked by the majority party in the legislature to appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the Governor must, having due regard to the Constitution and the laws, to which he is subject, decline, and the exercise of discretion by him in this regard cannot be called into question." This means effectively that there is an asymmetry in the judiciary's power to correct an aberrant exercise of gubernatorial discretion. There is no corrective for the denial of a rightful claim, though the acceptance of a wrongful claim could be set right. If the Governor does appoint an ineligible person, the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings, the Bench made it clear. "That the Governor has made the appointment does not give the appointee any higher right to hold the appointment," the judgment held.

Justice Brijesh Kumar said in his judgment: "The choice of the majority party regarding its leader for appointment as Chief Minister is normally accepted, and rightly. But the contention that in all eventualities whatsoever the Governor is bound by the decision of the majority party is not a correct position. The Governor cannot be totally deprived of element of discretion in performance of duties of his office, if ever any such exigency may so demand its exercise."

Legal experts raised questions about this part of the judgment which gives enormous powers to the President or the Governor to deny the claim of a person duly elected as leader of the majority party to be appointed as the head of government, on the ground that the claimant suffered some disqualification or that all qualifications were not fulfilled. Though the Governor is obliged to show due regard for the Constitution and the laws, he could conceivably arrive at his own determination of legality in certain situations to deny the rightful claims of specific individuals to elected office. There would then be no judicial remedy available for the aggrieved person. Since Governors today are mostly political appointees of the party ruling at the Centre, they often carry overt and covert political agendas into their gubernatorial mansions. Rather than evade the entire question of gubernatorial discretion, the Bench, several legal experts believe, could have gone into the scope of judicial scrutiny over this exercise of power.

Justice Pattanaik sought to tackle this area of ambivalence in a separate but concurring judgment: "In a given case, if the alleged disqualification is dependent upon disputed questions of fact and evidence, the Governor may choose not to get into those disputed questions of fact and, therefore, could appoint such person as the Chief Minister or Minister." But he added that in a case like that of Jayalalithaa's, the Governor would be acting beyond his jurisdiction and against the constitutional inhibitions and norms in appointing a disqualified person as the Chief Minister on the sole reasoning that the majority of the elected members of the party have elected him or her as their leader.

Although it was not called upon to address directly the legal basis of Jayalalithaa's electoral disqualification, the Bench has dealt with some of the issues that have a bearing on this matter. Much of this debate has revolved around the issues of conviction and sentence: Can a conviction or sentence be held to have been waived or suspended during the process of judicial appeal? Would the presumption of innocence apply to an individual despite his or her conviction in a trial court, until the final judicial appeal is exhausted? On these issues, Justice Bharucha has expressed himself with great clarity.

He has said, for instance, that it is not within the power of the appellate court to suspend the sentence against a convicted person. It can only suspend the execution of the sentence pending the disposal of appeal. This does not alter the fact that the offender has been convicted of a grave offence. The suspension of the execution of the sentences, therefore, does not remove Jayalalithaa's disqualification, he reasoned. He also held that the Madras High Court had been in error when it purported to suspend the sentence against Jayalalithaa, rather than its execution.

As for the presumption of innocence, Justice Bharucha's findings are fairly unambiguous: "When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate court and the accused released on bail. If the appeal of the accused succeeds, the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that is not to say that the presumption of innocence continues after the conviction by the trial court."

IN his concurring judgment, Justice Pattanaik has made a fervent plea to Parliament to consider the question of bringing conviction under the PCA as a disqualification under Section 8(1) of the RPA so that such convicts are disqualified from contesting elections irrespective of the quantum of sentence. Very much the same concern - of raising the bar for those found guilty of corruption - prevailed when Justice Malai. Subramanian of the Madras High Court expressed his inability to suspend Jayalalithaa's conviction, as she has been convicted under the PCA. But it would be anomalous to raise only the bar for those convicted for corruption, while maintaining the existing qualifying requirements for those found guilty of political crimes, such as demolition of religious shrines or participation in communal riots.

A major flaw in the judgment would perhaps be with regard to its interpretation of Section 8(4) of the RPA, which provides for immunity from disqualification to sitting legislators, if they appeal against their conviction within three months of being found guilty by a trial court. Since the presumption of innocence ceases for non-legislators on conviction by a trial court, this effectively institutionalises a differential scale of rights: with legislators being more privileged than the common citizenry. This, in the opinion of several legal experts, is grossly violative of Article 14 of the Constitution, which guarantees equality before the law to all citizens.

In the narrow sense, the Bench was undoubtedly right in not going into this issue. As Justice Bharucha put it, there was no challenge to Section 8(4) of the RPA on the basis that it violated Article 14. He has, however, expressed his deep unease at the superior rights that it institutes for legislators. He has said that if there were a challenge to Section 8(4), it may be tenable to contend that legislators stand in a class apart from non-legislators, "but we need to express no final opinion". In any case, he concludes, if it were found to be violative of Article 14, it would be struck down in its entirety.

Venugopal had argued that in order to preserve uniformity among the sub-sections of Section 8 of the RPA and to prevent any apparent discrimination, the Bench could "read down" Sections 8(1), (2) and (3) to save the constitutionality of Section 8(4). That would mean accepting the simple solution that final conviction by the appellate court should be the criterion under which disqualification from contesting elections would be deemed to operate under Sections 8(1), (2) and (3). The Bench refused to concede his argument for two reasons: first, Section 8(4) opens with the words "notwithstanding anything" in sub-section (1), sub-section (2) and sub-section (3). And secondly, to apply the principle of Section 8(4) uniformly to all sub-sections would be reading up rather than reading down and this is not known to law.

The effect of the Bench's interpretation would be that the presumption of innocence would apply to a sitting member until the conviction was finally affirmed but in the case of a non-legislator the disqualification would operate on conviction by the court in the first instance. After all, the intention of the Select Committee of Parliament which considered the Representation of the People (No.2) Bill, 1950, was not to restrict immunity from disqualification because of conviction to sitting legislators, even though the language of the Bill failed to reflect this sentiment (Frontline, June 22, 2001).

Again, consistent with its fair interpretation of Article 164(1), the Bench could have restricted the applicability of Section 8(4) of the RPA to the legislators' current term, when they are convicted. Otherwise, the judgment implies that there is no judicial remedy if R. Balakrishna Pillai, who has been elected to the Kerala Assembly despite his conviction by a trial court during his previous term in the Assembly, becomes a Minister by virtue of his appeal against his conviction, even though Kerala Chief Minister A.K. Antony dropped the proposal to include him in his Cabinet reportedly on the advice of the Governor.

In holding Jayalalithaa's appointment illegal, the Bench, however, went by the doctrine of necessity, that certain actions are irreversible. This meant that all acts, otherwise legal and valid, performed between May 14 and September 21 - whether by Jayalalithaa as Chief Minister or by her government - would not be adversely affected.

The Bench pronounced itself unimpressed by the argument that the writ petitions for quo warranto fell outside its jurisdiction because no fundamental rights were involved. One of the petitions filed before it had spoken of a breach of Article 14 of the Constitution. Yet, this issue is not elaborated in necessary detail by the Bench. Neither is it clear why the Bench refused to go into the anomalies inherent in Section 8 of the RPA when it was examining the issue in the light of the fundamental right to equality before law. The Bench may have imagined that the violation of Article 14 was implicit and required no elaboration. Considering that the Bench dealt with a question of great constitutional importance, the reluctance to address the full scope of the issues before it does not appear to be a minor flaw.