Fundamental Issues
There are few fundamental issues this case had turned up tot he fore.
It is highly unfortunate that the PILs and the consequent trials in
the Supreme Court in this case were restricted to the legality of
a person assuming power who is disqualified to become a member of
the Assembly / Parliament. There is an argument as to whether this
verdict projects the constitution above people's mandate? Have people
given this verdict? The Election Commission alone recognizes parties.
Our Democracy does not recognize political parties. That is how a
person who does not belong to any political party can contest the
election as an "independent". But when it comes to "defection", the
law required one-third to defect from the policies of the party on
which they got elected. This may sound pragmatic but in the opinion
of author, it infringes on the independent thinking of the people's
representative. But this is needed as the elected representatives
can subvert people's verdict by joining a party professing altogether
different political philosophy, which in the first place was rejected
by people. The point is whether the constitution views a MLA or MP
as a person from a particular political party or as a representative
of people. Even the "whip" issued to members is political in nature
and hopefully does not stay in the court of law. Each and every member
of the assembly/parliament stands on his/her own and does not stand
based on the party they belong to. For convenience, like-minded people
can form the party or even the alliances of the parties.
People's Verdict Hijacked
As far as the Constitution goes, every member is the representative
of the people in the constituency form where he/she got elected. If
these elected people elect a person as their leader, who was in the
first place not elected by people or disqualified by people, it is
not people's verdict. In fact, it tantamounts to subverting democracy
by unlawful hijacking the people's mandate by their (elected) representatives.
In this case, 131 AIADMK MLAs elected the convicted person as their
leader with scant regard for Constitution, which prohibits convicted
people to occupy public offices. In that sense, these 131 MLAs who
were expected to legislate indulged in an unlawful activity for which
they should be punished. They should be disqualified to enact laws
by nullifying their election. Why was it not discussed during the
proceedings of this case? Why only Jayalalitha and Fathima Beevi were
criticized? If Jaya is legally not qualified to be appointed as Chief
Minister, how could these MLAs escape from the notice of the law?
One can plead for the forgiveness based on ignorance of the law. But
in this case, Election Commission has prohibited Jayalalitha from
contesting the election based on an Act. So, the act of 131 MLAs should
be viewed as a deliberate violation of the law. They incurred heave
loss of time and money to the government and the judiciary. If she
can not contest the election, how could she have continued as CM after
November 14, 2001 by which date she should have become a member of
the assembly? If the 131 MLAs plead that they are unaware of the law,
they should forfeit their seats. How could we expect them to legislate?
An elected representative need not possess the ability to understand
the law but should respect the law if it is made clear.
Governor Abdicated Responsibility
On the same breath, the then Governor also violated the law, as she
could not have expected the judiciary to give the stamp of approval
for Jayalalitha's appointment as CM. If she wanted to abdicate the
responsibility
of taking decision and expected that the court would strike this,
she has not performed her job. She has not only performed her job
but also wasted precious time of the court and caused confusions.
The 131 AIADMK MLAs and the Governor would have taken a calculated
risk expecting that Jaya's conviction would be made null and void
during the appeal in the High Court and that too before November 14,
2001. The judgement served a greater purpose and conveyed to the nation
that such decisions should be based on the fact of the day and should
not be based on the speculation.
People's Representation Act
What is People's Representation Act? Who passed such an act? Is
it not the Parliamentarians? If it is so, whom are those Parliamentarians
who passed the Act? Are they not people's representatives? If this
is what is the logic of our democracy, let us go back to the original
question as to who passed the Act? Is it not the people of this country,
you and me, who passed the People's Representation Act? Through this
Act, we decided as to who should come before us to get our mandate
to represent us. Through this Act, we only "dictated" that a convicted
person should not come before us to get our mandate to represent us
in the law making bodies. In a fundamental sense, it is the people
of Tamilnadu, who were part of this legislative Act, rejected people
like Jayalalitha long back. Acts would not identify people and it
would only characterize the people who are eligible to rule and who
are not. Simply because, Jaya heads the AIADMK whose members won in
a majority number of constituencies and because she campaigned for
them, it does not mean that people elected Jaya. If people that are
"you and I" wanted Jaya to rule, we should have changed the People's
Representation Act first. We can not vote convicted people like Jaya
to power and also keep the People's Representation Act enacted by
us (i.e. you and me) in vogue. The fact that majority in this nation
did not see a reason to amend this Act simply means that we did not
want Jaya's to rule us. There is also a debate as to whether the People's
Representation Act a mere regulatory act or a law? The Apex court
bench should have said a final word on this issue.
