SC unseats Jayalalithaa as CM

By J. Venkatesan

NEW DELHI, SEPT. 21. The Supreme Court today dealt a severe blow to the political career of the AIADMK chief, Ms. Jayalalithaa, by quashing her appointment as Chief Minister of Tamil Nadu by the then Governor, Ms. Fathima Beevi, on May 14.

A five-judge Constitution Bench, in a unanimous verdict of 5-0, held ``a person who is convicted for a criminal offence and sentenced to imprisonment for a period of not less than two years cannot be appointed the Chief Minister of a State under Article 164 (1) read with (4) and cannot continue to function as such.'' In effect, the court rejected the argument that a popular mandate - or the `will' of the people - could override the Constitution.

Holding that her appointment ``was not legal and valid,'' Mr. Justice S.P. Bharucha, speaking for himself and Mr. Justice Y.K. Sabharwal, said ``we are satisfied that in the appointment of Ms. Jayalalithaa as Chief Minister there has been a clear infringement of a Constitutional provision and that a writ of quo warranto must issue.'' And Mr. Justice G.B. Pattanaik, speaking for himself and Mrs. Justice Ruma Pal, gave a separate but concurring judgment as did Mr. Justice Brijesh Kumar.

The Bench observed that it was not impressed by the submission that the court should not issue a quo warranto as the six-month period, allowed by Article 164 (4), would expire in about two months and it was possible for Ms. Jayalalithaa to succeed in the criminal appeals (in the TANSI cases) filed by her in the Madras High Court. ``We take the view that the appointment of a person to the office of Chief Minister who is not qualified to hold it should be struck down at the earliest.''

A non-legislator could be made Chief Minister or Minister under Article 164 only if he/she had the qualifications to become a member of the legislature, as enshrined in Article 173, and was not disqualified by reason of the disqualification set out in Article 191. It would be ``unreasonable and anomalous'' to say that a Minister who was a member of the legislature was required to meet the Constitutional standards of qualification and disqualification, but that a Minister who was not a member need not. Logically, the standards expected of a Minister, who was not a member, should be the same as, if not greater than, those required of a member.

The Bench cited a situation wherein a party, with a majority in the legislature, could recommend to the Governor the appointment of a foreign citizen, who would not be a member, and who would not be qualified to become one under Article 173, as Chief Minister under Article 164 (1) read with 164 (4). The Governor, in the instance, would be obliged to comply; the legislature would be unable to pass a no-confidence motion against the foreigner ``Chief Minister'' because the majority party would oppose it; and the ``Chief Minister'' would continue in office till the next election.

``Such a dangerous - such an absurd interpretation of Article 164 has to be rejected out of hand. The Constitution prevails over the `will' of the people as expressed through the majority party. The `will'' of the people prevails only if it is in accordance with the Constitution.''

Referring to the submission of Ms. Jayalalithaa's counsel that the Governor, while exercising her discretion under Article 164 (4), could appoint any person as Minister or Chief Minister, the Bench said ``to accept counsel's submission is to invite disaster.''

``The Governor cannot, in the exercise of his/her discretion or otherwise, do anything that is contrary to the Constitution and the laws.'' Therefore, the Governor, having due regard to the Constitution and the laws, must decline to exercise the discretion in appointing as Chief Minister a non-member who was not qualified to become a member of the legislature.

The Bench did not accept the contention that once a sentence was stayed by the High Court and an appeal was pending, the conviction would not operate and Ms. Jayalalithaa suffered no disqualification, and said ``conviction and sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well.''

The Bench held that the day Ms. Jayalalithaa was sworn-in, she was disqualified by reason of her convictions under the Prevention of Corruption Act and the sentences of imprisonment of not less than two years, under Sec. 8 (3) of the Representation of the People Act.

``We are aware that the finding that Ms. Jayalalithaa could not have been sworn in as Chief Minister and cannot continue to function as such will have serious consequences.''

To alleviate these consequences, the Bench invoked the de facto doctrine and declared that all acts, otherwise legal and valid, performed between May 14 and September 21 by Ms. Jayalalithaa as Chief Minister, by the Council of Ministers and by the State Government shall not be adversely affected by the order.

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