SC notice to Jayalalitha on PILs

By T. Padmanabha Rao

NEW DELHI, JUNE 4. A two-member Bench of the Supreme Court today issued notices to the Tamil Nadu Chief Minister, Ms. Jayalalitha, its Chief Secretary and the Union of India (respondents) on a group of five connected writ petitions challenging her appointment as chief minister by the Governor, Ms. Fathima Beevi, on May 14. The Bench comprised Mr. Justice Syed Shah Mohammad Quadri and Mr. Justice Doraiswamy Raju.

While issuing notice to the Attorney-General to assist the Court in the hearing of the case, the Judges referred the Public Interest Litigation petitions to a three-member Bench in view of the importance of the legal questions raised therein.

The Bench directed that the papers be placed before the Chief Justice for the constitution of an appropriate Bench. The Bench also dismissed certain interlocutory applications from the petitioners seeking the Court's directive for restraining Ms. Jayalalitha from exercising powers as Chief Minister pending disposal of these petitions.

The Bench dismissed as withdrawn a petition challenging the validity of clause (4) of Article 164 of the Constitution which says that ``a minister, who for any period of six consecutive months is not a member of a legislature of a State shall, at the expiration of that period cease to be a minister.'' The Bench asked petitioner's counsel if he could cite any authority to show that an original provision of the Constitution as enacted had been struck down.

Earlier, Mr. Anil Divan, senior counsel for Mr. Pratap Singh Chautala (petitioner), submitted that as the petition raised a matter of public interest, it ultimately required to be decided by the apex court. (Similar petitions are pending before the Madras High Court).

``The appointment and administering of oath to the respondent (Ms. Jayalalitha) of the office of Chief Minister by the Governor is unconstitutional and is contrary to the provisions of the Representation of the People Act, 1951, as she being a convict, convicted under the provisions of the Prevention of Corruption Act, 1988, is covered under the provision of Section 8(3) of the Representation of People Act, 1951. As such, she cannot be allowed even to contest election to either of the house of legislature, and is thus ineligible to hold office of the Chief Minister of Tamil Nadu even under the provisions of Article 164(4) of the Constitution and the provisions of Section 8(3) of Election law,'' the petition argued.

``The basic postulate of representative government is undermined and subverted when a person who is convicted and disqualified, and whose ``stay application'' had been rejected by the Madras High Court and, therefore, prevented by law from entering the precincts of the legislature as a member is appointed as a Chief Minister,'' Mr. Divan said.

There was no case where Article 164 (4) had been utilised for swearing in a chief minister who had been ``disqualified'' under ``election law'' because of a conviction under the Prevention of Corruption Act and who had failed to get a ``stay'' from the court, counsel said, adding that the cases related only to those persons who were qualified to contest elections but who either lost an election from a particular constituency or did not contest elections.

The impugned appointment of respondent (Ms. Jayalalitha) as Chief Minister ``is wholly unconstitutional, arbitrary and subverts the law and the rule of law which is part of the basic structure of the Constitution'', Mr. Divan said. He felt that the impugned appointment might lead to the following among other consequences:

Persons convicted of grave offences, murder, rape, etc., and who have been ``disqualified'' can be appointed as ministers in a State or even at the Centre and a chief minister who may be otherwise popular and unblemished can appoint many other ministers who have been convicted of grave offences.

Section 8 of the RP Act, 1951, is a ``disqualification'' which applies to a person ``for being chosen as, and for being a member'' of any legislature. It is well settled law that the relevant date for determination of the disqualification is the date of scrutiny of the nomination of the candidate and as a result the respondent (Ms.Jayalalitha) was disqualified (as she was disqualified by the certain returning officers from contesting recent elections), counsel pleaded.

``Article 191 (1)(e) of the Constitution raised a bar against a person if he is so disqualified by or under any law made by Parliament, and thus the bar under Section 8 was elevated to the level of a constitutional bar'', Mr. Divan pleaded. He submitted that constitutional interpretation ``must be in line with morality, observance of the law, and discouraging corrupt and criminal elements from holding office'' and that ``the appointment of a convicted and corrupt official is wholly against constitutional morality''.

``If the logic of this appointment is upheld the same person may resign office a little before six months and then again may be invited to occupy the office of the chief minister if the majority party so decides,'' counsel contended, adding that ``the impugned decision far from upholding the rule of law, legitimises the rule of outlaw''.

Mr. R. Mohan, counsel for a petitioner adopted the submissions of Mr. Divan while Mr. B.L. Wadhera, a petitioner (and an advocate) made similar pleas.

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