NEW DELHI: The Supreme Court had in July 2013 struck down Section 8(4) of the Representation of the People Act, 1951, which protected convicted MPs and MLAs from disqualification if they appeal before a higher court within three months.
Jayalalithaa’s conviction has become the latest focal point of a landmark Supreme Court verdict, which ruled that MPs and MLAs will be immediately disqualified if they are convicted in a criminal case by a trial court.
Jayalalithaa has to step down as the chief minister and is barred from contesting an election for six years after her release from the jail, if her conviction is neither stayed nor overturned by a superior court.
The next state assembly election is due in 2016. The Supreme Court had in July 2013 struck down Section 8(4) of the Representation of the People Act, 1951, which protected convicted MPs and MLAs from disqualification if they appeal before a higher court within three months.
Therefore, as the legal position stands today, Jayalalithaa stands disqualified as a legislator owing to her conviction in the case of amassing assets disproportionate to her known sources of income.
The Representation of the People Act does not specifically bar a non-legislator to be chief minister and usually a non-member can be a CM for a maximum of six months.
However, in 2001, when Jayalalithaa was appointed as the CM despite a subsisting conviction in a criminal case, the SC had quashed her appointment. The SC had then held that a person convicted for a criminal offence and sentenced to imprisonment for no less than two years cannot be CM.
The combined upshot of the SC rulings in 2001 and 2013 is that a non-member can hold a ministerial berth only if he or she is eligible to contest and not disqualified from contesting.
Since Jayalalithaa stands disqualified also for contesting for six years from the date of her release from jail, there is no way she can retain her position as the CM.
As she has been sentenced to four years in jail, there was no power with the trial court judge to suspend her sentence and let her remain out of the jail for enabling her to file an appeal.
Jayalalithaa has to be committed to a jail in Bangalore but she may seek her transfer to a jail in Tamil Nadu since the only reason the case was shifted to Bangalore was to ensure a fair trial, which has now been concluded.
Jayalalithaa will have to file an appeal before the Tamil Nadu High Court, not only for bail and against her sentence, but also for staying her conviction.
Only a stay on conviction can invalidate her disqualification under the RP Act and help her continue.
However, a stay on conviction is rare in Indian jurisprudence and it is certainly going to be an excruciating exercise for her legal team to convince a superior court to stay her conviction.
There is a body of SC judgments holding that such stay should not be ordered in corruption cases and judges must record reasons if they tend to accord this exceptional relief to an appellant.
There is only one illustration where the SC has chosen to exercise this power.
Convicted in a culpable homicide case by the Punjab and Haryana High Court, cricketer-turned-BJP MP Navjot Singh Sidhu had first resigned as MP, got his conviction stayed by the SC, then contested and won back the Amritsar seat.
Actor Sanjay Dutt, convicted in the 1993 Mumbai blasts case, had made a similar appeal but it was turned down, preventing him from contesting the 2009 elections on a Samajwadi Party ticket from Lucknow.
Last year, Lalu Prasad Yadav and JD(U) leader Jagdish Sharma were disqualified as Lok Sabha members following their conviction in the fodder scam while Congress leader Rasheed Masood was disqualified from Rajya Sabha after his conviction in a corruption case.
This will be the second time Jayalalithaa will be handing over the administration in the middle of a tenure.
In 2001, she had to step down as a chief minister following an SC verdict, which held that she could not hold the office after being convicted of criminal offences.
At the time, she appointed Panneerselvam as the interim chief minister.
In 2002, Jayalalithaa regained her position after being acquitted by the Madras High Court.
She was later elected from Andipatti constituency. – From the Indian Express