There may not be disqualification on Jayalalitha, says judge

By Our Special Correspondent

CHENNAI, APRIL 11. Even while dismissing the petitions of the AIADMK general secretary, Ms. Jayalalitha, seeking suspension of her conviction in the TANSI land deal case, Mr. Justice Malai Subramanian in the Madras High Court today observed that, ``in my view there may not be any disqualification for the petitioner to contest in the election.''

Interpreting the Criminal Procedure Code that conviction and sentence were inseparable twins, the judge said that if the sentence of imprisonment was suspended, as in the case of Ms. Jayalalitha, ``I do not think that there may be any disqualification for a person to contest the election.''

However, since the conviction against Ms. Jayalalitha was also for an offence under the Prevention of Corruption Act, the court, going by earlier Supreme Court rulings, was unable to exercise its discretion in her favour, he said.

The judge's observations on the ``disqualification'' issue, combined with his refusal to suspend the conviction, gave rise to various interpretations on the question whether Ms. Jayalalitha could contest an election. When counsel for both sides sought clarification, the judge posted the matter for Thursday.

Ms. Jayalalitha had been convicted in two TANSI land deal cases and sentenced to two years and three years imprisonment. Admitting her appeal, the High Court suspended the sentence. Ms. Jayalalitha filed petitions seeking suspension of the conviction to enable her contest the polls.

The judge said the Cr.P.C did not specifically speak on suspension or stay of conviction anywhere. Interpreting the code, he said it was abundantly clear that conviction included sentence. ``It can be safely held that the conviction and sentence are inseparable twins in the eyes of the law. The moment the sentence is suspended, conviction is deemed to have been suspended or otherwise, the framers of the Code would have taken care to provide for the stay of conviction or suspension of conviction also,'' the judge said. This position had been clarified by the Supreme Court in the `Ram Narag' case.

The judge referred to the submission that Ms. Jayalalitha's appeal against her conviction by the trial court was pending and appeal being a continuation of trial proceedings, conviction might not operate as a disqualification. Also, it was submitted that the presumption of innocence of an accused continued till being held guilty by the appeal court and that presumption was neither strengthened by an acquittal nor weakened by a conviction in a trial court. This, the Judge said, might be a point that had to be raised before the Election Commission which might decide whether a person was entitled to contest in the elections pending appeals against his or her conviction.

Under Section 8 (2) and Section 8 (3) of the Representation of the People Act, the emphasis was only on sentence and not on conviction. The disqualification arose only where a person was sentenced to imprisonment for not less than two years as per Sec.8 (3) of the Act. ``It is the sentence that is disqualified, not the offence,'' Mr. Justice Malai Subramanian said. Even in the case of ipso facto disqualification, it did not directly relate to the offence, but to the period of sentence of imprisonment. If Ms. Jayalalitha had been convicted and sentenced to imprisonment for less than two years, there would be no disqualification on her contesting the election.

On the main question of suspending the conviction, the judge said the Supreme Court had consistently held that in cases involving offences under the Prevention of Corruption Act, conviction should not be suspended. Even in two cases where High Courts granted suspension of sentences, the Supreme Court held that High Courts were not justified in granting the plea.

Referring to the petitioner's apprehensions that if she was disqualified from the contest, her statutory right would be affected, the judge said all these aspects had to be raised before the Election Commission and not before the High Court. Of course, the judge noted, the reason given by Ms. Jayalalitha for suspension of conviction on the ground that she might be permitted to exercise the statutory right of contesting the election was no doubt valid, because she was leading a large political party in the election and a front consisting of many political parties. If the conviction should have been under Section 409 of the IPC (criminal breach of trust), the court would have no hesitation in suspending the conviction, if necessary.

But since the conviction was also for an offence under Sec. 13 (1) (c) and (d) read with Sec. 13 (2) of the Prevention of Corruption Act, ``this court is unable to exercise its discretion in her favour,'' the judge said dismissing the pleas.

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