Ms. Jayalalithaa filed nominations for four constituencies for the Tamil Nadu Assembly elections. On April 24, 2001, three of these nominations were rejected on account of her conviction in the TANSI case and consequent disqualification under Section 8(3) of the Representation of the People Act, 1951. The fourth nomination was rejected on the ground that she had filed her nomination for more than two seats. The rejection of her nomination papers had not been challenged by Ms. Jayalalithaa.

After the elections, she was unanimously elected the leader of the party and was sworn in Chief Minister on May 14, 2001. At that time, there was a suggestion that she should not occupy the Chief Minister's office until her appeals were disposed of and she is either acquitted or the sentence reduced to less than two years. She insisted that the mandate of the people was that she should become the Chief Minister. Had she shown a dignified restraint, a healthy convention would have been set.

Qualifications

Article 173 prescribes qualifications for the membership of any State legislature. Briefly, a potential candidate must be at least 25 years of age (30 for the Legislative Council), a citizen of India and must possess such other qualifications as prescribed under any law by Parliament. Article 191 sets out the disqualifications and these are: holding office of profit with the Government of India or any State Government, being of unsound mind, an undischarged insolvent, a foreigner, and, lastly, any disqualification under any law made by Parliament. Ms. Jayalalithaa's case was concerned with disqualification under Section 8(3) of the Representation of the People Act, 1951. With her conviction and two-year sentence, Ms. Jayalalithaa's election nomination papers were rejected. The fact that her appeals were pending and the sentence suspended made no difference. Thus, she could not contest the election and become a member of the Legislative Assembly.

As a general rule, a person can become a Minister only if he is a member of the Legislative Assembly or the Legislative Council. Article 164(4) states that a person cannot continue as Minister for more than six months if he is not a member of the legislature by that period. Ms. Jayalalithaa became Chief Minister on May 14. Her anxiety to get her appeal disposed of was in the hope that if she was acquitted, she could contest a by-election and become a member of the Legislative Assembly on or before November 14, 2001. At the same time, the larger issue that came up for consideration before the Supreme Court was whether a person who is not eligible to stand for election could be appointed as Minister at all. Article 164(4) is completely silent on this issue.

While the Constitution provides for qualification and disqualification for membership to the Assembly, there is no provision as to any qualification or disqualification for a person to be appointed a Minister. This constitutional vacuum has now been filled up by the Supreme Court.

Article 164(4) has now been given a novel interpretation. Hereafter, a non-member of the legislature can be made Chief Minister or Minister only if he has the qualifications prescribed by Article 173 and does not suffer any disqualification as set out in Article 191. Consequently, unless a person is theoretically eligible to be a member of the Legislative Assembly, he cannot be appointed a Minister.

Suspension of sentence

The suspension of Ms. Jayalalithaa's sentence did not imply that she is presumed to be innocent till her appeal is heard. Once she was convicted and sentenced, the presumption of her innocence came to an end. The suspension would apply only to the execution of the sentence. If she succeeded in her appeal, then the stigma of her conviction would be erased altogether.

Mr. Justice Bharucha clarified that they were not concerned with the correctness of the Governor swearing in Ms. Jayalalithaa as Chief Minister. At the same time, they held that the Governor is not obliged to appoint a person Minister or Chief Minister on the ground that a particular party has been given clear majority by the people. If a person is not a citizen, he is not eligible to be a member of the Assembly and consequently cannot be a Minister. It would be absurd to suggest that the Governor is obliged to appoint a foreigner Chief Minister merely because the majority party wants it. The Supreme Court observed that the Constitution prevails over the will of the people; the latter can prevail only in accordance with the Constitution.

Legal paradox

The Supreme Court pointed out the paradox between an aspiring Minister or MLA and a person who has already been elected. Section 8(4) of the Representation of the People Act, 1951 states that a conviction of a person who is already a member of the legislature will not take effect either until three months after that date or if he files an appeal within that period, until that appeal or application is disposed of. In other words, an elected member gets an effective reprieve if he files an appeal within three months. Given the usual time of disposal in most High Courts, his term of office will be over by the time the appeal is heard and disposed of. The Supreme Court has held that once a person is convicted, the stigma will continue till he is acquitted by the Appellate Court. There is no justification for making an exception in the case of elected members. Once he is convicted, he should automatically vacate the office. Justice Mr. Pattanaik has rightly called attention to this paradox and it is hoped that an amendment is made at the earliest.

The two decisions also demonstrate the limitations of the Supreme Court. The Constitution cannot provide for every contingency. If healthy conventions are developed and indirect attempts to subvert the Constitution are avoided, the Supreme Court would not have the unpleasant task of dealing with such issues. James Madison remarked that if men were angels, no government would be necessary. If angels were to govern men, no controls on government would be necessary. As the possibility of angels governing us is extremely remote and as devils rule the roost, the Supreme Court will have to continue to impose constitutional controls on our Ministers and MLAs.

ARVIND P. DATAR