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Conviction will attract instant disqualification: legal experts

23 September 2014
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The Hindu

With a special court in Bangalore set to pronounce its verdict on September 27 in the disproportionate assets case involving Tamil Nadu Chief Minister Jayalalithaa, political and legal circles are agog with speculation on its possible fallout.

While it is obvious that the verdict in the 18-year-old case would have far-reaching political ramifications, it will also raise significant legal issues.

The immediate question that would arise is whether Ms. Jayalalithaa would be able to continue as Chief Minister in the event of conviction.

After the Supreme Court verdict last year in Lily Thomas vs. Union of India, striking down Section 8(4) of the Representation of the People Act, legislators have lost their protection from immediate disqualification. In the light of this ruling, Ms. Jayalalithaa will be disqualified as an MLA the moment conviction is awarded, say legal experts.

“Under the present law, conviction by the trial court will automatically result in removal from the House,” said K. Chandru, former judge of the Madras High Court.

Under the RPA, the Prevention of Corruption Act falls under a category of offences in which mere conviction, irrespective of duration of the jail term, will entail disqualification from contest.

According to Abhishek Sudhir, Assistant Director of the Centre for Public Law and Jurisprudence at Jindal Global Law School, the Supreme Court had made it clear in B.R. Kapoor vs. State of Tamil Nadu, a case which went into Ms. Jayalalithaa’s appointment as Chief Minister in 2001, that a person who is not eligible to become a legislator under the RPA cannot be sworn in Chief Minister.

“Ms. Jayalalithaa would have to step down as Chief Minister if disqualified as an MLA through conviction,” he said.

A senior Supreme Court lawyer, speaking on condition of anonymity, said even when an appeal is filed in the High Court against conviction, the disqualification would be operative, because normally only the sentence is suspended on appeal. However, if the conviction itself is stayed, it may result in suspension of disqualification.

“Such orders of stay on conviction are given in the rarest of rare cases. Once a conviction is stayed, the disqualification is also consequently suspended,” the senior lawyer said.

However, this does not mean that the person would be reinstated as a member of the Assembly for the same constituency. “Once a member is disqualified, the vacancy would be immediately notified by the Assembly Secretariat. So, on obtaining a stay on conviction, the person may have to contest again in the by-poll,” the lawyer said.

What would happen to the Cabinet and the government in case of disqualification of a Chief Minister?

Senior advocate K.M. Vijayan said the Council of Ministers would have to go as it was appointed on the advice of the Chief Minister.

Mr. Chandru said the legislature party would have to be convened to nominate a new leader. “It is immaterial if there will be a time lag in between [disqualification of a CM and election of new leader of the legislature party] since the Governor can function without the Cabinet for the time being,” he said. Of course, all these questions will become irrelevant in case Ms. Jayalalithaa is acquitted on September 27.