? Rajan Darbar
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Landmark Judgment- Part 1

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The Special Court investigating the TANSI case gave a judgement in October 2000 by which the former Chief Minister of Tamilnadu Ms Jayalalitha was convicted for three years imprisonment. She appealed against this verdict in the Madras High Court for which the judgement is awaited. The Tamilnadu went in for a State Election in May 2001. Ms J Jayalalitha was disqualified by the Election Commission of India to contest the election as per the People's Representation Act in May 2001. According to the Peoples' Representation Act, a person who is convicted of imprisonment for 2 or more years is ineligible to contest the election for six years. The Special Court ordered three years of imprisonment to Jayalalitha in the TANSI case. During her previous tenure in office, she misused her office and bought the TANSI land, the government property, for a lower price than the market price. She projected herself as the Chief Ministerial candidate in spite of her disqualification to contest the election. Her part got the simple majority (131 seats out of total 234 seats in the Tamilnadu Assembly) in May 2001. Ms Fathima Beevi, the then Governor of Tamilnadu administered the oath of office to Ms J Jayalalitha as the Chief Minister of Tamilnadu on May 14, 2001 in spite of the fact that she can not contest the election and would not be able to get herself elected by the people to the assembly within six months as per the constitution. There were a few Public Interest Litigation (PIL) petitions filed in the Supreme Court questioning the validity of her appointment as the Chief Minister of Tamilnadu. Ms Fathima Beevi justified her decision by saying that the majority party in the assembly elected Jayalalitha as their leader. She also got swayed by her assessment that the law and order in the State would have got deteriorated if Ms Jaya was not administered the oath of office. It is ridiculous that a Governor can take decisions based on his/her pre-supposition that the law and order would deteriorate and (under) estimate the police force that they would not be able to contain the violence if it breaks out. Of course, the Governor has to weigh the situation and take a decision. However, when there is a conflict with Constitution, nothing should dominate the decision-making other then the constitution.

Early Signals

When the PIL related to her appointment as Chief Minister was pending, the Apex Court indicated in an another case involving a sitting Minister in Punjab that no one can continue to be a member of the Assembly/Parliament after 179 days without getting elected by the people. In a yet another case, on August 2, 2001 the judges of the highest court of the land expressed serious concerns over the declining probity in public life and ruled that a convicted person shall not hold any public office till he/she was cleared of all charges by a superior court. In this very caustic judgement, the Bench comprising Justice K T Thomas and Justice S N Variava mentioned "it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level". The Bench observed that the corruption by public servants had acquired a "monstrous dimension" and its "tentacles" had started gripping even the institutions created for the protection of the Republic. These Judges warned that "unless these tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises, the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity". This author refers to this important judgement to make sure that the reader does not relate the public servants to only the politicians. This author's humble submission believes that behind every corruption involving a political conspiracy, there are highly educated bureaucrats without whose help the conspiracy could not have succeeded in compromising the public interest.

In spite of all these indications, Ms Jayalalitha, who was illegally administered the oath of office on 14th May, did not oblige. She ignored these prior signals and was clinging to the post throwing all decent and democratic norms to the wind. The Apex Court probably expected Ms Jaya to vacate the office, picking up the indications. From September 4, 2001 the five-judge constitutional bench headed by Justice Barucha conducted the hearing till September 13, 2001. While this case which questions her appointment as the Chief Minister was heard, the Supreme Court issued an interim stay on the appeal of Ms Jaya on her conviction in TANSI case in Chennai High Court. The Supreme Court transferred the case from Justice Balasubramanian and ordered that the new judge should hear the case after October1, 2001. All these were clear signals for Ms Jayalalitha. Meanwhile, the MLA from the Andipatti constituency resigned his seat, presumably paving the way for Jayalalitha to contest the by-election. In such a charged political atmosphere, on September 21, 2001 the Apex Court delivered a "Landmark Judgement". This historical judgement rejuvenated the belief over our democratic system.

Unceremonious and Unprecedented Exit

After being in power for 130 days, on the 21st day of September 2001, Jaya claimed the infamous distinction of being the first Chief Minister in the country who was unseated by the Apex Court. Her cabinet became the first Ministry to have got unseated. The Supreme Court squashed her appointment on the ground that it was against constitution. Although the reports say that Jayalalitha submitted her resignation to the Governor, constitutional experts say that there was no need for resignation after the verdict was delivered, as the verdict came into effect with immediate effect. If she had resigned, she resigned the job, which she was not holding it legally.

The Apex Court, in its landmark judgement has stated clearly that according to Article 164 the Governor/President can administer the oath of office to a person as Chief Minister/Prime Minister who is elected by the majority party in the Assembly/Parliament or to the person who in the wisdom of Governor/President enjoys the majority support of the Assembly/Parliament. Article 164 allows the Governor to install a person as Chief Minister although he/she is not a member of the assembly at the time of taking over. However, the Article 173 lists the qualification of the person who can be made the Chief Minister, by which the person installed as the Chief Minister should get elected to the assembly within the six months of assuming Office. The constitution bench also mentioned in its verdict that when the Governor chooses a person to head the cabinet, the credentials of him/her should not be subjected to any disqualification for the Office as mentioned in the Article 191. Many intellectuals predicted a predicament to Constitution if Jaya had to be unseated. They were proven wrong by the judgement wherein it was made clear that all the lawful decisions taken by the unceremoniously unseated cabinet in those 130 days would stay and only the illegal ones would be reversed. We need to compromise for such a pragmatic judgement as the clock cannot be put back. However, it is very important for us to make sure that such aberration of the Constitution would not recur. Otherwise mischievous would have their way even through it may for a short while when the Constitution would be reduced to a silent spectator as it was from May 14 to September 21, 2001. ....more

Naangal vimarsanam   2001 www.nilacharal.com. All rights reserved.