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Verdict in Jaya case raises
more questions than it answers

N Sathiya Moorthy in Chennai

The Madras high court Wednesday held that the suspension of sentence against All India Anna DMK chief Jayalalitha should be deemed to be the suspension of her conviction too, thus possibly paving the way for her to contest assembly elections in Tamil Nadu.

However, the court said a final decision on whether she could contest elections would rest with the Election Commission.

The high court is not qualified to order the suspension of conviction under the Prevention of Corruption Act, under which Jayalalitha had been found guilty by the trial court in the Tansi land deal case, Justice Malai Subramaniam held.

In a significant addition, the judge also dismissed Jayalalitha's plea to suspend her conviction in the two land deal cases, where she had been sentenced to three years and two years rigorous imprisonment, by Special Judge P Anbazhagan.

"The sentences against Jayalalitha in the two Tansi land deal cases have been suspended by the high court," Justice Malai Subramaniam observed, referring to Jayalalitha's appeal against the trial court order, pending before another bench.

"When a sentence is suspended, the conviction is also deemed suspended," the judge said, adding, "I do not think she would be disqualified from contesting elections."

The judge drew a fine distinction between Sections 8 (1) and 8 (3) of the Representation of People's Act. Under the first provision, disqualification is possible even for mere conviction for offences under the Protection of Civil Rights Act, while for those under the PCA, covered by the latter provision, 'conviction and sentencing' are mandatory for disqualification, the judge said.

"The sentence having been suspended in the case of Jayalalitha, provisions of Section 8 (3) will not apply in her case," the judge held.

However, the judge referred to the respondent, CB-CID's arguments based on the Election Commission's observations on the need for rooting out corruption and upholding public morality. It is in this context that Justice Malai Subramaniam's decision not to dismiss Jayalalitha's petition and refusal to suspend her conviction under the PC Act assumes significance.

The verdict means that the final say in matters of acceptance and rejection of nomination would rest with the poll authorities. This implies that Jayalalitha, or anyone in her position, would have to now wait for the returning officer to accept or reject her nomination papers, on scrutiny.

The Election Commission has issued a circular that is binding on all returning officers, for obtaining a written declaration from intended candidates that they have not been convicted and sentenced to more than two years rigorous imprisonment under the PCA -- or for relevant terms under other laws -- for nominations to be accepted.

This means that the returning officer can under law, based on interpretation that may now come to be conferred on the verdict of Justice Malai Subramaniam, to even reject the nomination papers of Jayalalitha.

The official need not even have to wait until scrutiny of nomination papers, according to an interpretation of the Election Commission's circular.

This apart, Section 11 of the RP Act provides for the Election Commission to overturn the order of the returning officer.

Indications are that the high court did not want to interfere with the constitutional authority of the Election Commission, charged and empowered with the conduct of legislative elections, including acceptance and rejection of nominations.

It is in this context that Chief Election Commissioner M S Gill's observations that the poll panel had its rules and regulations, assumes added significance.

Justice Malai Subramaniam has drawn the fine line between the role and powers of the judiciary and the Election Commission, taking care not to cross the Lakshman Rekha.

At the same time, the court's reservations in not wanting to suspend the trial court conviction against Jayalalitha may open up new legal possibilities.

The single-judge direction on the concurrent suspension of conviction and sentence contradicts the original high court order in Jayalalitha's case.

In that case, the court had suspended the sentence, pending disposal of Jayalalitha's appeal against the trial court order, without suspending the conviction part.

In legal terms, it implies a tie, which can be resolved only by a larger bench of two or more judges.

By not wanting to suspend the conviction in the case, as it involved the Prevention of Corruption Act, Subramaniam also seems to have put her case apart from those under the Indian Penal Code, where he has argued that the suspension of sentence and conviction would go together.

Here again, there are those who argue, citing the Himachal Pradesh high court verdict in the Rakesh Mishra case, that conviction of a person for disqualification under Section 8 (3) of the Representation of the People's Act, would commence from the trial court stage itself, and could not be suspended by an appellate court, unless the conviction is fully set aside at the stage of final disposal.

To that extent, an appeal to a larger bench, or Supreme Court, seeking clarification of the single judge order of today, or even a direction on qualifications for contesting elections is a possibility now available to the affected parties.

Simultaneously, there is also the possibility of the Supreme Court being moved for declaring the right to contest elections as a fundamental and not statutory right.

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