The
Special Court investigating the TANSI case gave a judgement in October
2000 by which the former Chief Minister of Tamilnadu Ms Jayalalitha
was convicted for three years imprisonment. She appealed against this
verdict in the Madras High Court for which the judgement is awaited.
The Tamilnadu went in for a State Election in May 2001. Ms J Jayalalitha
was disqualified by the Election Commission of India to contest the
election as per the People's Representation Act in May 2001. According
to the Peoples' Representation Act, a person who is convicted of imprisonment
for 2 or more years is ineligible to contest the election for six
years. The Special Court ordered three years of imprisonment to Jayalalitha
in the TANSI case. During her previous tenure in office, she misused
her office and bought the TANSI land, the government property, for
a lower price than the market price. She projected herself as the
Chief Ministerial candidate in spite of her disqualification to contest
the election. Her part got the simple majority (131 seats out of total
234 seats in the Tamilnadu Assembly) in May 2001. Ms Fathima Beevi,
the then Governor of Tamilnadu administered the oath of office to
Ms J Jayalalitha as the Chief Minister of Tamilnadu on May 14, 2001
in spite of the fact that she can not contest the election and would
not be able to get herself elected by the people to the assembly within
six months as per the constitution. There were a few Public Interest
Litigation (PIL) petitions filed in the Supreme Court questioning
the validity of her appointment as the Chief Minister of Tamilnadu.
Ms Fathima Beevi justified her decision by saying that the majority
party in the assembly elected Jayalalitha as their leader. She also
got swayed by her assessment that the law and order in the State would
have got deteriorated if Ms Jaya was not administered the oath of
office. It is ridiculous that a Governor can take decisions based
on his/her pre-supposition that the law and order would deteriorate
and (under) estimate the police force that they would not be able
to contain the violence if it breaks out. Of course, the Governor
has to weigh the situation and take a decision. However, when there
is a conflict with Constitution, nothing should dominate the decision-making
other then the constitution.
Early Signals
When the PIL related to her appointment as Chief Minister was pending,
the Apex Court indicated in an another case involving a sitting Minister
in Punjab that no one can continue to be a member of the Assembly/Parliament
after 179 days without getting elected by the people. In a yet another
case, on August 2, 2001 the judges of the highest court of the land
expressed serious concerns over the declining probity in public life
and ruled that a convicted person shall not hold any public office
till he/she was cleared of all charges by a superior court. In this
very caustic judgement, the Bench comprising Justice K T Thomas and
Justice S N Variava mentioned "it is necessary that the court should
not aid the public servant who stands convicted for corruption charges
to hold public office until he is exonerated after conducting a judicial
adjudication at the appellate or revisional level". The Bench observed
that the corruption by public servants had acquired a "monstrous dimension"
and its "tentacles" had started gripping even the institutions created
for the protection of the Republic. These Judges warned that "unless
these tentacles are intercepted and impeded from gripping the normal
and orderly functioning of the public offices, through strong legislative,
executive as well as judicial exercises, the corrupt public servants
could even paralyse the functioning of such institutions and thereby
hinder the democratic polity". This author refers to this important
judgement to make sure that the reader does not relate the public
servants to only the politicians. This author's humble submission
believes that behind every corruption involving a political conspiracy,
there are highly educated bureaucrats without whose help the conspiracy
could not have succeeded in compromising the public interest.
In spite of all these indications, Ms Jayalalitha, who was illegally
administered the oath of office on 14th May, did not oblige. She ignored
these prior signals and was clinging to the post throwing all decent
and democratic norms to the wind. The Apex Court probably expected
Ms Jaya to vacate the office, picking up the indications. From September
4, 2001 the five-judge constitutional bench headed by Justice Barucha
conducted the hearing till September 13, 2001. While this case which
questions her appointment as the Chief Minister was heard, the Supreme
Court issued an interim stay on the appeal of Ms Jaya on her conviction
in TANSI case in Chennai High Court. The Supreme Court transferred
the case from Justice Balasubramanian and ordered that the new judge
should hear the case after October1, 2001. All these were clear signals
for Ms Jayalalitha. Meanwhile, the MLA from the Andipatti constituency
resigned his seat, presumably paving the way for Jayalalitha to contest
the by-election. In such a charged political atmosphere, on September
21, 2001 the Apex Court delivered a "Landmark Judgement". This historical
judgement rejuvenated the belief over our democratic system.
Unceremonious and Unprecedented Exit
After being in power for 130 days, on the 21st day of September
2001, Jaya claimed the infamous distinction of being the first Chief
Minister in the country who was unseated by the Apex Court. Her cabinet
became the first Ministry to have got unseated. The Supreme Court
squashed her appointment on the ground that it was against constitution.
Although the reports say that Jayalalitha submitted her resignation
to the Governor, constitutional experts say that there was no need
for resignation after the verdict was delivered, as the verdict came
into effect with immediate effect. If she had resigned, she resigned
the job, which she was not holding it legally.
The Apex Court, in its landmark judgement has stated clearly that
according to Article 164 the Governor/President can administer the
oath of office to a person as Chief Minister/Prime Minister who is
elected by the majority party in the Assembly/Parliament or to the
person who in the wisdom of Governor/President enjoys the majority
support of the Assembly/Parliament. Article 164 allows the Governor
to install a person as Chief Minister although he/she is not a member
of the assembly at the time of taking over. However, the Article 173
lists the qualification of the person who can be made the Chief Minister,
by which the person installed as the Chief Minister should get elected
to the assembly within the six months of assuming Office. The constitution
bench also mentioned in its verdict that when the Governor chooses
a person to head the cabinet, the credentials of him/her should not
be subjected to any disqualification for the Office as mentioned in
the Article 191. Many intellectuals predicted a predicament to Constitution
if Jaya had to be unseated. They were proven wrong by the judgement
wherein it was made clear that all the lawful decisions taken by the
unceremoniously unseated cabinet in those 130 days would stay and
only the illegal ones would be reversed. We need to compromise for
such a pragmatic judgement as the clock cannot be put back. However,
it is very important for us to make sure that such aberration of the
Constitution would not recur. Otherwise mischievous would have their
way even through it may for a short while when the Constitution would
be reduced to a silent spectator as it was from May 14 to September
21, 2001. ....more
