It is law for Tamil Nadu

Sir, - This has reference to the letter of Mr. K.D. Batish ``A parallel from H.P.?'' (April 18). In law, Ms. Jayalalitha is not disqualified to contest any election. The Madras High Court recently held that conviction and sentence are inseparable twins in the eyes of law and that the moment the sentence is suspended, conviction is deemed to have been suspended. In Section 8 (3) of the Representation of the People Act, the court held that it is the sentence that disqualifies, not the offence. The disqualification operates from the date of undergoing the sentence of imprisonment. If the imprisonment is suspended, the disqualification does not commence. This decision is a declaration of the law of the land and it is applicable to the entire territory of Tamil Nadu. Full faith and credit shall be given to this declaration by every agency in Tamil Nadu. It is binding on everybody. The Election Commission is not above law. The decision of any other High Court contrary to this view is not applicable to this State.

Applying this law to the case of Ms. Jayalalitha, the court further held that since the sentence of imprisonment has already been suspended, in its view, there may not be any disqualification for her to contest the election. In the Himachal Pradesh case when the appeal against conviction filed by Mr. Rakesh Singha was pending, the Supreme Court suspended the sentence. When clarification was sought, the Supreme Court said that it was a matter for the Election Officer to consider.

If the law is that disqualification shall apply, they would have said so. It is to be noted that the nomination was accepted by the Returning Officer and the candidate was elected. In the election petition, a single judge of the Himachal High Court, following the judgment of the Madhya Pradesh High Court in the V.C. Shukla case, held that by the suspension of the sentence, the disqualification was not arrested. The decision of the High Court in the Shukla case was reversed by the Supreme Court on appeal.

Whatever be the ground on which the Supreme Court reversed the judgment, the decision of the High Court is no longer law on any question. It may be mentioned that the judge also held that the word `order' in Section 389 of the Code includes an order of conviction which is not the correct law as held by the Supreme Court in the Rama Narang case 1995 (2) SCC 513. Thus on both the questions it is no longer correct in law. Mr. Batish casually mentions that the appeal filed against the judgment in the Rakesh Singha case was dismissed by the Supreme Court. What happened was the elected candidate filed appeals in the Supreme Court in the election cases and these appeals and the appeals filed against the conviction were taken together for final disposal. Counsel appearing on both sides agreed that in the event of the Supreme Court dismissing the criminal appeals, all the election appeals will also stand dismissed. Since the criminal appeals were dismissed, the election appeals were also dismissed. This is consistent with the decision of the Supreme Court in Mr. Shukla's case. It is therefore not correct to state that the case of Ms. Jayalalitha is similar.

Justice V. Ramaswami,

Chennai

Send this article to Friends by E-Mail

Section  : Opinion
Previous : A neglected minority
Next     : Speaker must be firm