SC hearing on petitions against Jayalalithaa's appointment

By J. Venkatesan

NEW DELHI, SEPT. 4. The decision of the then Governor of Tamil Nadu, Ms. Fathima Beevi, to appoint the AIADMK leader, Ms. Jayalalithaa, as Chief Minister of Tamil Nadu, despite her conviction and consequent disqualification was today assailed by several lawyers before a Constitution Bench of the Supreme Court, which began hearing a batch of petitions questioning the validity of her appointment.

Mr. Fali S. Nariman, MP and senior counsel for one of the petitioners, Mr. V. Selvaraj, a Chennai advocate, criticised the Governor for swearing in a ``disqualified person'' as the Chief Minister.

The Bench, comprising Mr. Justice S.P. Bharucha, Mr. Justice G.B. Pattanaik, Mr. Justice Y.K. Sabharwal, Mrs. Justice Ruma Pal and Mr. Justice Brijesh Kumar, earlier dismissed an application filed by Ms. Jayalalithaa for adjournment of the proceedings for three weeks on the ground that her appeals in the ``TANSI cases'' were pending before the Madras High Court and that her acquittal would have a direct bearing on these proceedings.

Mr. Nariman said, ``I am rather amazed that the Governor, an eminent person, had done this. She (Governor) ought to have satisfied that on the date of appointment of Ms. Jayalalithaa as the Chief Minister, the AIADMK leader was disqualified to become a member of the Assembly.''

Mr. Nariman contended that the present situation would not have arisen if only the Governor had considered the disqualification aspect. Appointing Ms. Jayalalithaa as Chief Minister after all her four nominations to contest the elections were rejected, ``is a clear defiance of the provisions of law''.

Counsel wanted the court to consider ``how far popular democracy can go even if it be against the rule of law and the spirit of the Constitution''. Describing Ms. Jayalalithaa's appointment as unfortunate, he said ``only the Governor has to be blamed for that''.

He asserted that Article 164 (4) of the Constitution (which provides for a person to become a Minister without being elected as a Member of the Assembly) was only an exception and an ad hoc provision to enable such a person to become a Member within six months.

The Attorney-General, Mr. Soli J. Sorabjee, who has been asked to assist the court, submitted that ``if a person chosen to become a Minister suffered a disqualification, then his/her appointment as Chief Minister or Minister is bad ab initio and such a person cannot be appointed as there is inherent incapacity''.

Mr. Sorabjee submitted that the question involved here was ``whether the court should interpret the provisions of the Constitution keeping in view the well-recognised principles, namely not to subvert the rule of law and the root of democracy.'' He will continue his submissions tomorrow.

Mr. Ashok Desai, former Attorney-General and senior counsel for Mr. B. R. Kapur, contended that a person who had been appointed as Minister without being a Member of the Assembly should be qualified to get elected to the Assembly within six months.

But in the case of Ms. Jayalalithaa, she was barred by the Election Commission from contesting elections because of her conviction and hence on the date of her appointment she did not possess the requisite qualification to become a member.

Mr. Anil Diwan, senior counsel for two other petitioners, contended that the Governor's decision would ``blatantly encourage and condone corruption and empower a convicted person to occupy the Chief Minister's office''.

The precedent set by the impugned decision would even lead to a situation when a convicted murderer or a dacoit could be appointed not only as a Minister but also as a Chief Minister or even the Prime Minister. To a question from the Bench whether even a terrorist from Jammu and Kashmir could be appointed as a Minister or Chief Minister, Mr. Diwan answered in the affirmative.

Court upset over telegrams

Mr. Justice Bharucha brought to the notice of Mr. Venugopal that the court had received a bunch of telegrams from the members of the Madras Bar Association calling the Special Prosecutor, Mr. K. V. Venkatapathi, who has filed a petition in the Supreme Court for transfer of the appeals in the TANSI case, a ``liar''.

The judge told counsel that ``this is absurd. This is not done. We will convey to whomsoever concerned that I expect this to stop immediately''. Mr. Venugopal said, ``this is not only counter- productive but also stupid. This shows the ignorance on the part of those who sent these telegrams.''

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