Why it is Not a Fair Law which Unseated Jayalalithaa

        It does not seem a fair law – the law which unseated Jayalalithaa from her position as chief minister of Tamil Nadu and as a member of the State’s legislative assembly when a Bengaluru special court convicted her for possessing assets valued more than her known sources of income. 

To be precise: Law may well say that such a judicial verdict should force anyone out of those offices.  But the unfair part of it lies in making her go immediately rather than postpone her exit till an appeal court also might, if at all, judge her guilty.  And if the appeal court, after hearing all concerned, would say ‘she is not guilty, the lower court went wrong’ – which really happened in her case  - she should have continued as chief minister and legislative assembly member without any break.   That would have been fair.

The law which expelled Jayalalithaa upon her conviction was born of a 2013 Supreme Court judgement in Lily Thomas v. Union of India and Ors.  By that judgement the Supreme Court nullified a provision in the Representation of the People Act, which led to the instant application of the disqualification- effect on sitting members of a legislative assembly or legislative council of a State (MLA’s or MLC’s) or of parliament (MP’s). As that Act stands now, sitting members of these elected bodies would cease to be members upon their mere conviction for many specified offences or upon their getting sentenced for some minimum terms for other offences.  Their period of disqualification is six years plus the time, if any, they spend in prison.  During that period the unseated member cannot also become an MLA, MLC or MP, through hot elections or soft nominations.

Before Lily Thomas, if such convicted and disqualified sitting member appealed to a higher court within 3 months the disqualification-effect was not applied on him or her and would be enforced only if the appeal court also found him or her guilty.  And if the appeal court delivered a verdict of not guilty, the disqualification-effect stood erased and the sitting member just continued being a member.  So the law remained fair at that time, but it had changed by the time the special court decided Jayalalithaa’s case.  More needs to be said on why this law is unfair in its present form. 

Here I am not commenting on the merits or correctness of the Lily Thomas judgement.  Let us take that Supreme Court judgement as correct and the present law as valid.  We may still talk about the worth of having such a disqualifying law. 

Just to be clear: I am not also touching the merits or correctness of the judgements delivered first by the Bengaluru special court and then by the Karnataka High Court in appeal proceedings, on the assets case against Jayalalithaa.  I am on a more fundamental issue.

Everyone will note.  When the new disqualification law unseated Jayalalithaa, she was not alone in getting affected.  The State of Tamil Nadu suddenly lost its chief minister.   To remove the chief minister of a State forcibly midway through his or her term, without a firm and conclusive basis, has serious repercussion for the State.  It gives a severe blow to governance and demoralizes the administrative machinery in the State. Then it is the people of the region who take the beating.   Let us not overlook these effects because it is a politician who seems affected most.

Some may argue: “The law’s effect on Jayalalithaa and its impact on Tamil Nadu do not arise from mere allegations of her political opponents but emanate from a court judgement finding her guilty.   If elected representatives flout criminal laws of the country the law should boldly check them and take away their representative status.  If they are to continue being an MLA or a chief minister, let them not break criminal laws and not suffer a court verdict.”

True, we should have a law which stops anyone from continuing as an MLA or a chief minister, if found guilty of certain offences.  But when a court of first instance – i.e., a court where a case is begun or first heard – finds him or her guilty and when appeal proceedings could ensue, many fresh scenarios crop up.  All these scenarios count in finding out which law of disqualification of a sitting MLA or MP is fair – the one that prevailed before Lily Thomas or the one which was ushered in by that ruling.

Look at a key question.  What is the significance of the judgement of a court of first instance, when appeals and revisions to higher courts are provided?    They are provided, on the basis of a principle, to a party dissatisfied with a court’s judgement or order.  That is, a judge may err while deciding a case or some part of it, and another judge at a higher level to whom it goes could correct the errors.  So law itself gives only a tentative value to a lower court’s judgement or order when it will be tested in appeal or revision. That is why the higher court generally orders interim stay on the lower court’s decision when the appellant or revision-petitioner asks for it.   A criminal appellate court may usually suspend a sentence awarded by the lower court and grant bail to the appellant-convict instead of staying the conviction.  But in any case the convict could finally convince the appellate court that he or she is not guilty and that the lower court’s judgement should be set aside.

So is it right to penalise an MLA or a chief minister on findings of a tentative value?  Is it just and fair to irreversibly erase the electoral victory of an MLA or a chief minister while the verdict of the lower court which does it remains possibly reversible in appeal?  A later acquittal by the appellate court cannot undo the loss of representative status for an MLA and cannot comfort a chief minister who had to step aside.  And a slow-down of work in a jolted State administration that sees a chief minister go out in this way cannot be made up if later he or she is cleared of guilt in an appeal.

Also, vendetta politics and malicious prosecutions are still seen around in our country.  False and exaggerated charges can be brought against active or popular politicians by their rivals, to hang over the heads of the accused like a sword of Damocles.  When politics in the country is not clean enough, our laws should not come handy for anyone to make it murkier. There are many charges under different laws which, if proved in court, will instantly disqualify a sitting MLA or an MP. Some of those criminal charges are easy to fling on political adversaries, and so our disqualification law should guard itself against misuse of that law.  Next, there is still scope for appointment of more competent persons in the lower judiciary.  And in any case, chances of error in a lower court judgement are reckoned by the law itself when it gives a right of appeal.  All these put together tell us that the law prior to Lily Thomas is preferable.

This is not to say that criminal justice system at lower levels works bad in most cases or that we have to distrust the merit of nearly every conviction handed down by a court of first instance. That is not the point.  The point is, an elected representative or a chief minister should never be put on an irreversible slide in their electoral gains or prospects because of a wrong conviction by a lower court, and their acquittal much later in appeal or revision does not help them recoup their loss.  And there are more things that weigh.

In the case of Jayalalithaa, on an order of the Supreme Court the Karnataka High Court heard her appeal on fast track and delivered its judgement quickly.   She took only 226 days from the date of conviction to appeal to the High Court and get a verdict of reversal and acquittal, which removed her disqualification.   All this happened when the original five-year term of the legislative assembly of Tamil Nadu, from which she was unseated, is not over and so she could again become the chief minister of the State.  Now she is contesting a by-election to the assembly from R. K. Nagar constituency, to be held on 27th June 2015.

A law which makes a chief minister step aside from office – a high constitutional office - on a court verdict of tentative significance and then enables her being sworn into the same office when a higher court overturns that verdict would not be a sound law.  More so, when in this backdrop a by-election had to be held for the Srirangam assembly constituency – that was Jayalalithaa’s original constituency which witnessed a vacancy when she was disqualified as an MLA, and so it had to be filled up - and further, when another by-election is on the anvil for one more constituency (R. K. Nagar), because its MLA belonging to Jayalalithaa’s party resigned to create a vacancy in the assembly so she could contest for it.   It is unfortunate that these kinds of unforeseen tamasha have come into play on applying the new disqualification law – for no fault of the accused.

Think of other bad consequences for a leader of a party unseated as an MLA and as chief minister, but whose appeal in a higher court is yet undecided.  Assume also that the appeal remains pending till the time elections are held next for the legislative assembly in his or her State.  (This is more likely if the lower court could give its judgement just about six months or a year or two before the oncoming assembly elections).  Then his or her opponents will merrily attack the disqualified status of the former chief minister who cannot contest that election, and will weaken the morale of his or her already troubled party.  In this way those opponents will surely win more votes unethically. With such a big disadvantage for them in elections, which could show in election results too, what does it matter to the appellant chief minister and his or her party if a higher court acquits the chief minister after the elections are over?   Here the law will be lending an unintended helping hand to the opposition at a crucial election time – whether or not they win the elections – and will fail to carry a neutral image.

In Jayalalithaa’s case, thanks to a direction of the Supreme Court the Karnataka High Court concluded her appeal and gave its judgement soon.  Being acquitted she could again become chief minister before the next assembly elections are due in Tamil Nadu.   But every other similar case involving a chief minister may not be left to the mercy and sagacity of the Supreme Court to muffle an injustice inherent in the present disqualification law.  And if the next round of elections to the State assembly are imminent, even the Supreme Court cannot help.

  

Here is another grave scenario.  If an incumbent prime minister of the country were to be convicted of a disqualifying offence, the present law will unseat him or her as prime minister and as an MP when conviction is handed down, though he or she may get acquitted in an appeal later.   It could happen that the acquittal comes only from the highest court, Supreme Court – which would be much later. But until then the beleaguered political head of the government of India, his or her party and the nation would have suffered huge and needless disgrace, criticisms, international embarrassment and more.  None of us would wish to bring our nation and our political leaders to this pitiable state.   Governments at all levels in our democracy can be run only through politicians and political leaders at the helm, some of whom may be good and some bad.  Law must be careful not to make it difficult for the good ones to survive and serve with dignity.

The present disqualification law could also make way for this horror.   A ruling party or coalition may be surviving with a majority of just one member more than the 50% strength of a legislature, at the Centre or in a State.  Then at least three of its supporting members may be held guilty of some disqualifying offence by a court of first instance, sending them out of that legislature. So the government will lose majority in the house and could fall, and a new government in a different coalition could come in.  The three disqualified members may later get acquitted in appeals at one or more higher levels, by which time the term of the legislature could be over, with the fallen real majority sitting in the opposition.  A change in law which could result in this much of political turmoil and injustice cannot evoke admiration in all those who work a democracy or care for it.

What is the worst scenario if we amend our disqualification law to bring it to its state before Lily Thomas?  This is what it would be. We may have an MLA, MLC or MP whom a trial court has found guilty of a disqualifying offence but who continues as elected representative by filing an appeal.  He may be found guilty by the appellate court also, or by the Supreme Court, and only at that time the disqualification-effect will apply on him.   By that time he may have completed the whole of his elected term.   He will have enjoyed an unfair benefit – being allowed to continue as an elected representative all through.  That is all.  Even then the law will catch up with him and he will stand disqualified for the prescribed period after the final court of appeal affirms his guilt. 

So it is good and necessary to restore the law prior to Lily Thomas, for sitting MLA’s, MLC’s and MP’s.  The present law is not fair.  It carries dangerous implications too.

As you see, all these are said on principle.  The decision of the Supreme Court, whatever it could be, in any appeal filed against the Karnataka High Court’s verdict in the disproportionate assets case against Jayalalithaa will have no effect on these views.   And yes, the result of the R.K. Nagar by-election which she is now contesting will have no relation to the fallout of the law discussed here.  

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Copyright © R. Veera Raghavan 2015

Jayalalithaa's Wealth Case and the Supreme Court

India’s Supreme Court would be on a self-trial – that is, it would let itself be observed and judged by everyone – when it decides any appeal against the recent Karnataka High Court judgement that acquitted Tamil Nadu Chief Minister Jayalalithaa in the disproportionate assets case.  The High Court too had been on a self-trial when it sat on an appeal against the judgement of a Bengaluru special court which pronounced her guilty.  And yes, the special court was likewise on a self-trial when it conducted the case against her in the first instance.   All these are not to say that in this criminal case any court may be perceived as doing credit to itself only by holding the accused guilty.  Then what?

Law prescribes many things – such as who checks and decides if you are fit to get a driving licence, what income tax you have to pay and who will first assess you, the largest area of construction you can raise on a plot of land and about thousands of other issues.   You and I may not be the officials who test applicants for a driving licence, keep tabs on income tax dues and payments or oversee compliances with building construction rules.  But looking around, all of us take a view whether driving licences are indeed given on a real test of driving skills, whether generally all incomes are taxed as they should be and if unchecked over-construction goes on.  Your views on these examples could be vastly differing if you live in India or in the UK.  But wherever you are, you will be a judge of things happening around you, especially if they are not in order as you feel.   Likewise, the functioning of the judiciary does not escape public perception.

In the case of politicians running governments in a democracy, you could openly discuss their actions or inactions and sternly say whether they are right or wrong and talk about their motives too, of course without breaking the defamation law.  They are also free to reply and defend themselves in public.  But about judges and their judgements you can form any critical view, even a little offensive if you like, but you cannot say it out in public beyond a measure – and doing so is rightly prohibited by law.   Sitting in court, or even after retirement, a judge cannot be replying to criticisms about his or her judgements, whether mild or not.  For that reason also a good judge, while writing a judgement, thinks about all reasonable doubts and criticisms his or her conclusions may attract and moulds the judgement in a way it may not face serious objections to its justness.   Often the justice of a case would instinctively strike a good judge when he or she finishes up the hearing, and the seasoned among them explain themselves fully in the judgement itself so it persuades an unprejudiced reader that it is just and fair. (Judgements interpreting complicated laws, which the public would generally not read or may not follow, are of a different class) 

So law does not block human nature, by which anyone finds for himself or herself whether the judgement in a widely followed court case seems well constructed and convincing or not.  Such human nature works especially in a case that involves much of arithmetic and related basic facts rather than interpretation of intricate laws.  If you agree with the judgement you can say it aloud in the open.  If you have criticisms on the judgement, especially those you cannot say out, you might naturally whisper them to friends who would not carry them to the public sphere.   This is not peculiar to the Indian public, and will happen all over the free world in a like case.  That is why you can say the Supreme Court would be on a self-trial when it delivers its judgement on any possible appeal against the Karnataka High Court’s findings.

A little more about any court on a self-trial.  Recent times have seen restrictions on free entry for the public into court halls, especially in the High Courts and in the Supreme Court because of threats to security.  But, for ages earlier the public were free to enter courtrooms everywhere and watch proceedings from a separate enclosure though they could not, in a similar fashion, get into the room of any government official and watch how that official transacted business with a visitor on work.  Such free access to a court room marked the openness and transparency expected in the working of the judiciary, which also go with a rule that a judgement should give reasons.  Those reasons would help any appeal court, if the case goes there, to assess if the lower court was right or wrong.  At the same time, the reasons in a judgement would also shape an opinion in the minds of the parties and the interested public about the judgement.  Generally, in most cases, the reasons for a court’s verdict – whichever party wins the case – would come from a plain common-sense analysis of facts and events and a picture they naturally make, and it is here that courts are more on a self-trial and are judged closely by countless others.  In some way, that is also a beauty of a free society wherein courts and judges are protected from severe criticisms from anyone but at the same time are open to assessment by all.

There is another thing.  Courts may be cautious in dealing with corruption cases against a high government functionary, like any minister or the chief minister of a State or anyone in the cabinet of the Central Government.  Not that a lower-ranked official of the government can be judged less carefully in a court proceeding, but the general effect of convicting a minister in a government would be grave in public affairs and so courts tend to be more circumspect.  The converse of this is also important – such a high functionary should be seen to be clean and straight and not give, by his or her dealings, an easy room for corruption charges to be brought against him or her.   In a way it is like your respecting someone who respects you.  If you don’t return the respect you are in danger of losing respect for you. 

Next, the high status of the court which writes a judgement either way in a corruption case – especially relating to a top government functionary - will also send out right signals to all about the soundness of the justice system in the country.  So the Supreme Court, being the nation's highest court, will be watched even more keenly by everyone when it gives its judgement and its underlying reasons in any appeal in the Jayalalithaa case.  What that court says will come to stay and is going to matter for all politicians, for all the public and for all courts in India.

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Copyright © R. Veera Raghavan 2015