Optimism, doubts over Jayalalitha contesting polls

By Suresh Nambath and K. Ramachandran

CHENNAI, MARCH 26. While political allies of the AIADMK general secretary, Ms. Jayalalitha, have expectedly sought to take advantage of the Supreme Court judgment that conviction is not final in a case during pendency of an appeal in a higher court, some legal experts say the ruling had no relevance to the case of Ms. Jayalalitha's conviction.

The Dravidar Kazhagam general secretary, Mr. K. Veeramani, the Social Justice Party State president, Mr. K. Jagaveerapandian, and the former AIADMK Minister, Mr. Mohamed Asif, claimed that in the light of the Supreme Court judgment, politicians convicted by the trial court could contest the election, if their appeal against the conviction was pending.

Mr. Veeramani urged the Election Commission to issue a circular to all returning officers in the coming elections to the five States clarifying the position following the recent Supreme Court ruling. This could avoid unnecessary controversy and confusion and ensure justice to the candidates.

In a statement, he said none could now stop Ms. Jayalalitha from contesting as she had obtained bail in the cases in which she had been convicted. Noting that several leaders of the DMK-led NDA had been saying that Ms. Jayalalitha would not be able to contest as per law, he said ``their weapons have been blunted even before the battle.''

Mr. Jagaveerapandian said the judgment was a ``death blow'' to the DMK which had foisted cases against Ms. Jayalalitha in the hope of preventing her from contesting.

Mr. Asif urged the Chief Election Commissioner to make an ``open declaration'' that there was no bar on convicted persons, whose appeals were pending in higher courts, from contesting the polls.

Meanwhile, AIADMK sources said Ms. Jayalalitha may appeal against her conviction and the Representation of the People Act, once elections were announced.

However, despite the theories floated, some constitutional lawyers feel that persons convicted under the corruption cases for not less than two years, ``will not be able to contest the polls, as on date''.

Senior counsel, Mr. K.M. Vijayan, says the Supreme Court order has no relevance to the disqualification clause under Sec. 8 (3) of the R.P. Act. The Supreme Court ruling is not a new concept. In the `under-trial prisoners case' it had held that a person should not languish in prison for a long period, which might exceed beyond the actual conviction period.

Here, the R.P. Act specifically states that the disqualification would start on the date of conviction and continue to be there till the lapse of six years since the date of release pursuant to the conviction.

``What follows from this is that a disqualification clause will not get wiped out or be kept in abeyance on the mere filing of appeal. This position is made clear by Sec. 8 (4) of the R.P. Act, which applies to sitting MP/MLAs, thereby making it evident that it will not apply under Sec. 8 (1) to 8 (3).''

On whether the conviction could be stayed, Mr. Vijayan says the Supreme Court held in the `Jagannathan case' in 1996 in respect of a similar offence under the Prevention of Corruption Act, that the stay of conviction was not permitted.

The words used in the R.P. Act under Sec. 8(3) is a meaningful provision of law to protect probity in public life. What follows unequivocally is that conviction cannot be stayed against the object of Sec. 8 (3).

Another advocate, Mr. Mohan Parasaran, agrees, but adds there is no final ruling on disqualification under the R.P. Act vis-a-vis the Prevention of Corruption Act.

``It is not as if the Supreme Court does not have the power to stay a conviction. Even in the Jagannathan case, the apex court has said that the power (to grant stay) can be exercised only when the damage caused to the appellant cannot be undone, if he or she ultimately succeeds in the appeal,'' he notes.

Whether there could be suspension or stay of the conviction and its relevance to the R.P. Act? He says there is no authoritative pronouncement from the Supreme Court as on date.

On whether a person's right could be affected, if one is not allowed to stand for elections, Mr. Vijayan says the right to contest polls is not a fundamental right, but only a statutory right.

``Also there is the question of a convicted person ultimately succeeding in the appeal. But when a right to stand in election is pre-conditioned by certain qualification and disqualification, one has to come within the meaning of the said qualification. Unless set aside by the Supreme Court, this law will be deemed valid.''

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