People's will subordinate to Constitution: SC

By J. Venkatesan

NEW DELHI, SEPT. 6. The Supreme Court today observed that the ``Constitution is supreme'' and that ``the `will' of the people must stand subordinate to it. We will respect the `will' of the people provided it is not in conflict with the Constitution.''

These observations came from a five-Judge Constitution 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, during the resumed hearing on a batch of petitions challenging the former Tamil Nadu Governor, Ms. Fathima Beevi's decision to appoint Ms. Jayalalithaa as Chief Minister.

At the repeated assertion of Mr. K. K. Venugopal, senior counsel for Ms. Jayalalithaa, that the `will' of the people must be respected, the Bench said ``we are not concerned with the mandate of the people. The Constitution is supreme. That is what we are interpreting, not the people's mandate,'' and asked the counsel to confine his arguments to questions of law and the Constitution.

`Overwhelming vote'

Mr. Venugopal contended that despite Ms. Jayalalithaa's `conviction', people had overwhelmingly voted for her party, AIADMK, knowing fully well that if it won the elections, she would be the Chief Minister. People who did not get two square meals a day had elected her as their leader so that she could ensure the same to them, he said.

For the people, `corruption' was not an issue in the last Assembly elections as they felt that Ms. Jayalalithaa had been ``unjustly and falsely convicted'' and they would not go by moral values. ``If the Governor looks into any other criteria other than the fact that the elected leader of the Legislature Party enjoyed the majority support of the House, then the `will' of the people will be defeated,'' Mr. Venugopal said.

At this, the Bench observed ``the argument is that as the lady has been elected by a party which has won by an overwhelming majority in the elections, we should respect it. We will respect it provided it is not in conflict with the Constitution.''

When Mr. Venugopal persisted that the disqualification of Ms. Jayalalithaa by the court would go against the `will' of the people, which was supreme in a democracy, the Bench said ``please consider what you are saying - that regardless of `conviction', she (her party) has won the elections. Today, it is a question of sentence of two to three years. Tomorrow, it may be a sentence for murder. Are we left with no standards at all?''

On counsel's submission that there were many politicians who were corrupt but not convicted and that the entire system was corrupt and it was irrelevant, the Bench observed ``we are not going into those who are not convicted. We have only one person before us who has been convicted. Let us deal with that person.''

When counsel maintained that the discretion exercised by the Governor under Article 164 (4) of the Constitution, to invite a person to form the Government could not be gone into by the courts, the Bench asked ``do you mean to say that once the leader is elected, the Governor has to merely put his/her rubber stamp on it without going into the question of disqualification?''

`Will fill vacuum if necessary'

``We are yet to come across a Governor who has sworn in a person convicted under the Prevention of Corruption Act. We have a Constitution which has never imagined this. We have judgments which have never conceived this,'' the judges said.

When counsel asserted that the Constitution was silent on the question of prescribing qualification or disqualification for a non-Member being appointed as the Chief Minister, the Bench said ``if necessary we fill the vacuum.''

Mr. Venugopal contended that the conviction did not operate against Ms. Jayalalithaa as the appeals against it were pending in the High Court. The Governor could not have gone into the legal question of whether the conviction operated against her or not as she had no machinery or mechanism to go into this issue.

The arguments will continue on Tuesday.

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