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Opinion divided on Jaya's disqualification

N Sathiya Moorthy in Madras

Legal opinion is divided on the question of disqualifying former chief minister J Jayalalitha from contesting next year's assembly election in Tamil Nadu following her conviction and sentence to one year's rigorous imprisonment by a special court in Madras for corruption.

While one section argues that a two-year prison term is the norm for disqualification, others say the two terms of one year each, to run concurrently, handed down by Judge V Radhakrishnan are reason enough to disqualify the All-India Anna Dravida Munnetra Kazhagam general secretary.

Section 8(3) of the Representation of the Peoples Act reads: "A person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified [for contesting an election to Parliament or State Legislature] from the date of conviction and shall continue to be disqualified for a further period of six years from the date of his/her release."

Citing this, former chief election commissioner T N Seshan says Jayalalitha will not attract disqualification as her prison term is limited to one year.

But the counter argument is that the conviction and sentence is actually for two years -- one year each for two separate offences. Only, the sentences are to run concurrently. But that should not preclude the operation of section 8, it is said.

According to some lawyers, there is another possibility, section 9 of the RPA. This refers to the disqualification of government servants, either at the Centre or in the states, following their dismissal for corruption or disloyalty. A court conviction is not required in this case.

In the light of the Antulay case in Maharashtra, in which a minister was defined as a public servant for the purpose of the Prevention of Corruption Act, the argument goes that a former chief minister convicted for corruption too should be disqualified.

But under section 9 a person has to be disqualified by the Election Commission. And any citizen moving the Election Commission on the basis of the trial court's verdict can obtain such a declaration, it is argued.

But not all advocates share this opinion. Some say section 9 was meant to address a specific set of people -- government officials liable for dismissal without reason for disloyalty -- just as section 8 related to the non-official segment, particularly ministers.

Another question relates to Jayalalitha's expected appeal to the Madras high court. Lawyers refer to Supreme Court verdicts and say the disqualification law applies even during the pendency of an appeal. Even if there is a second appeal, from the high court to a larger bench or the Supreme Court, only if the original conviction is set aside does the disqualification have to be held in abeyance.

The state government, meanwhile, is also planning to go in appeal against the lower court verdict and seek a longer prison term for Jayalalitha and the others. The government is confident that the appellate courts will uphold the conviction because the Supreme Court had earlier upheld the Madras high court's finding that the accused had conspired to violate provisions of the Tamil Nadu Municipalities Act and granted permission to construct the Pleasant Stay Hotel in Kodaikanal.

The third question now is about the Election Commission disqualifying former Tamil Nadu minister T M Selvaganapathy from continuing as a member of the Lok Sabha.

Selvaganapathy represents Salem in Parliament, and had defeated former petroleum minister and Tamizhaga Rajiv Congress politician Vazhapadi K Ramamurthy in the 1999 general election. He has been awarded three terms of one-year RI each on three counts, but his terms will also run concurrently. But the very fact that he has been sentenced to three years RI is reason enough for anyone to approach the Election Commission and seek a notification against him, some lawyers say.

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