SC rejects 'presumption of innocence' until final appeal

By J. Venkatesan

NEW DELHI, SEPT. 22. The Supreme Court has rejected the contention of the counsel for the AIADMK general secretary, Ms. Jayalalithaa, that the `presumption of innocence' continued until final judgment affirming conviction and sentence was passed and hence no `disqualification' operated against her.

A five-judge Constitution Bench - quashing Ms. Jayalalithaa's appointment as Chief Minister - said ``when a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo sentence.''

The Bench said, ``the execution of sentence can be stayed by an appellate court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part because the accused has already undergone imprisonment.. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside.''

``A successful appeal means that the stigma of the offence is altogether erased. But that it is not say that the presumption of innocence continues after the conviction by the trial court. That conviction and sentence it carries operate against the accused in all their rigour until set aside in appeals, an a disqualification that attaches to the conviction and sentence applies as well.'' On the reliance placed by the counsel to the Madras High Court order passed in April that once sentence was suspended it amounted to suspending the conviction also, the Bench said ``the interpretation of the provision, viz. Sec. 389 of the CrPC, by the learned judge is erroneous''.

The Bench pointed out that the conclusion of High Court judge was tentative, as indicated by the word `may' in his judgment, according to which ``in my view, there may not be any disqualification for petitioner to contest in the election''.

On the submission that the Tamil Nadu Governor was bound by the High Court order (as no appeal was made against that order), the Bench said ``we are not concerned with what the Governor did nor did not do, we are concerned with whether Ms. Jayalalithaa can show that she was, when she was appointed Chief Minister, qualified to be a legislator under Article 173 and not disqualified under Article 191''.

On the contention that there was discrimination in the application of disqualification under Sec. 8 (3) and 8 (4) of the Representation of the People Act, the Bench said ``there is no challenge to Sec. 8 (4) of the RP Act on the basis that it violates Article 14. If there were, it might be tenable to contend that legislators stand in a class apart from non legislators, but we need to express no final opinion. In any case, if it were found to be violative of Article 14, it would be struck down in its entirety''.

On the submission that the court should not enter political thicket by answering the question, the Bench said ``the question before us relates to the interpretation of the Constitution. It is the duty of this court to interpret the Constitution. It must perform that duty regardless of the fact that the answer to the question would have a political effect''.

The Bench quoting the speech of B.R. Ambedkar made before the Constituent Assembly, observed that these proceedings would go to show that the Constitution did not postulate that elected representatives of the people belonging to a political party commanding a majority would elect a person as their leader who did not possess the qualification to contest the elections.

The Bench observed ``if purity of administration and otherwise competence to hold the post of Minister were the factors which weighed with the founding fathers of the Constitution to allow a competent person to be appointed as Chief Minister or Minister for a limited period of six months, it is difficult to conceive that a person who is not an elected member, does not possess even the minimum qualification for being chosen as a Member could be appointed as a Chief Minister or a Minister''.

The Bench while removing the `grey area' in interpretation of Article 164 (4) was of the view that any unfettered discretion on the Governor in appointing a person as Minister under Article 164 (4) would be subversive of the Constitution and would be repugnant to the theory of good governance.

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