A minor amendment to undo the wrong

EYEBROWS are being raised on Ms. Jayalalithaa's induction as Chief Minister of Tamil Nadu by Ms. Fathima Beevi, Governor of the State, on May 14 despite the fact that she stood convicted in the TANSI land case on October 9, 2000 and sentenced to undergo three years rigorous imprisonment. Nomination papers filed by her to contest elections to the State Assembly were rejected by the returning officers who held that on account of the conviction she incurred disqualification to contest the election and become a legislator. During the elections the electorate of Tamil Nadu knew fully well all these facts and despite this they led the AIADMK headed by Ms. Jayalalithaa to a spectacular victory. In a house of 234, the AIADMK and its coalition partners secured 194 seats i.e. two thirds majority. The AIADMK alone had fielded 140 candidates and won 132 seats.

As soon as the election results were declared, Ms. Jayalalithaa said: ``The people's verdict is God's verdict. The people have given an overwhelming mandate for the AIADMK because they wanted me to be the Chief Minister. Any decision against swearing me in will be an insult to the people's verdict.''

On May 14, the AIADMK legislature party unanimously elected Ms. Jayalalithaa as its leader. The legislature party while informing the Governor through a letter of their unanimous decision categorically stated that it had no intention of even considering, let alone selecting, anyone else as leader.

Armed with the letter of the AIADMK legislature party, the Governor, a former Supreme Court Judge, was bound by Article 164(1) of the Constitution which lays down that the Chief Minister shall be appointed by the Governor. Ms. Fathima Beevi therefore invited Ms. Jayalalithaa to form the government and administered the oaths of office and secrecy to her. It is another matter that she procured an assurance from Ms. Jayalalithaa that she will get herself elected to the State Assembly within the stipulated period of six months of her oath taking and induction. Ms. Fathima Beevi had earned the distinction of the first woman to become a judge of the Supreme Court in 1989, now she is the first Governor to have administered the oaths of office and secrecy to a Chief Minister who stood disqualified to become a member of the State legislature. Ms. Jayalalithaa happens to be the first convicted person to become Chief Minister but disqualified to become a member of the State legislature. Both the ladies have thus created history.

Nothing wrong

The Tamil Nadu Governor has not done anything wrong. She was bound to follow well-established parliamentary practice, conventions and the Constitution that the leader of the party commanding majority in the State Assembly was to be invited to head the Government.

After the demolition of the Babri Masjid, Mr. Kalyan Singh, U.P. Chief Minister, was convicted by the Surpreme Court for contempt of court and even after this he continued to be the Chief Minister.

Legality and morality are two different yardsticks. It was for Ms. Jayalalithaa not to stake her claim for Chief Ministership on moral grounds but once she staked her claim, legally or constitutionally, there was no option left for the Governor but to invite her to lead the government.

During the course of debates in the Constituent Assembly on the question of qualifications or disqualifications for the members, scholar statesman Prof. K. T. Shah had rightly said: ``A person with a criminal record would hesitate, if not be afraid, to offer himself as a candidate for membership, and even if he does so, the political parties would not entertain his request.'' This was not to be in the case of Ms. Jayalalithaa. She was claimant for chief ministership, herself supremo of the AIADMK and unanimously elected leader of the legislature party - all rolled in one or three in one. Such a step, though immoral, was expected of her and was a foregone conclusion.

Infirmity in the Constitution

Preachers, not practitioners of political morality, are saying that whatever has happened in Tamil Nadu is murder of democracy and subversion of democracy and a case of usurpation of power by a convicted person disqualified to become a legislator. Those raising a hue and cry and singing the saga of morality should know that Ms. Fathima Beevi was able to administer the oaths of office and secrecy to Ms. Jayalalithaa on account of a serious lacuna and infirmity in the Constitution.

The Constitution lays down no qualifications or disqualifications for the holders of office of the Prime Minister, Chief Ministers, Ministers of the Union or the States. Our learned Constitution makers, men of great sacrifice and dedication, even in their dreams could not visualise that at any point of time in future in free India, any non-legislator having become disqualified to contest Assembly elections on account of conviction will ever stake his or her claim to be a Chief Minister taking advantage of Article 164(4) of the Constitution which provides that even a non-legislator can be inducted as Chief Minister or Minister for six consecutive months.

The Constitution or the law is to be interpreted and implemented as it stands. The Tamil Nadu Governor was constitutionally and legally correct and within her rights in inviting Ms. Jayalalithaa to become Chief Minister.

A dangerous precedent

However, Ms. Jayalalithaa's induction as Chief Minister on May 14 can be a harmful and dangerous precedent. Repetition of such an instance immediately needs to be checked and halted by a minor constitutional amendment on the lines suggested hereunder.

Article 58(1) of the Constitution lays down qualifications for election as President of India, which is as under:

No person shall be eligible for election as President unless he

(a) is a citizen of India,

(b) has completed the age of thirtyfive years and

(c) is qualified for election as a member of the House of the People.

Article 66(30) lays down qualifications for election as Vice- President of India, which is as under:

No person shall be eligible for election as Vice-President unless he

(a) is a citizen of India,

(b) has completed the age of thirtyfive years and

(c) is qualified for election as a member of the Council of States.

A minor constitutional amendment on the above lines in Article 74 relating to the Prime Minister and his Council of Ministers and in Article 163 relating to the Chief Minister and his Council of Ministers will go a long way to undo the wrong. The question about the age of the Prime Minister, Chief Ministers and Ministers should be left to Parliament. After the said constitutional amendments the clear answer to the question whether a person is entitled to become Chief Minister after having been declared disqualified to become a legislator will be in the negative, an emphatic `No.' And therefore Parliament should immediately go for a constitutional amendment, which is the only solution.

SATYA PRAKASH MALAVIYA

Former Union Cabinet Minister

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