Jaya’s Electoral Fraud

Seeking adjournments on flimsy grounds and appealing to higher courts at every stage of the trial and hearing proceedings are the tactics adopted by Jayalalitha to delay and protract the cases against her. The Disproportionate Assets case against her now before the Special Court in Bengaluru is being conducted for the past 15 years, wasting the precious time of courts – trial courts in Chennai and Bengaluru, High Courts of Madras and Karnataka and the Supreme Court.

Another case which is getting delayed is the Election Commission’s criminal cases against her for filing false affidavits during the 2001 Assembly polls when she purposely filed four nominations from four constituencies so that they were rejected, from which she can seek sympathy from the electorate.

Last week the Special Leave Petition filed by Jayalalitha challenging the Madras High Court judgement directing the Election Commission to register criminal cases against her for filing affidavits came for final hearing before the Supreme Court Bench of Justices H.L.Dattu and S.K.Prasad, when the counsel for her sought adjournment to some other date because she could not attend the court owing to some personal reasons. The Justices took objection to the attempt by her to delay the case by seeking such adjournments and said it could not be adjourned beyond one week and listed the final hearing on July 25.

Earlier in March, the Bench of Justices H.L. Dattu and S.K. Prasad posted the SLP for final hearing in July after hearing senior counsel U.U. Lalit, appearing for  Jayalalitha and senior counsel T.R. Andhyarujina for C. Kuppusamy, former DMK MP, on whose petition the Madras High Court directed the Election Commission to register the cases.

Jayalalitha had filed nominations in Andipatti, Krishnagiri, Bhuvanagiri and Pudukottai constituencies. All were rejected as she had been disqualified from contesting polls at that time following conviction in the TANSI land deal case.

Acting on a petition from C. Kuppusamy, the High Court in June 2007 directed the Election Commission to register cases against her in the magistrate courts concerned and these proceedings were stayed by the Supreme Court in July 2007.

The High Court had held that Jayalalitha's declaration in the third (Bhuvanagiri) and fourth (Pudukottai) constituencies that she had not been nominated from more than two segments was “false to her own knowledge and amounts to violation of Section 33(7) (b) of the Representation of the People Act (under this provision a candidate cannot contest from more than two constituencies)”.

Acting on Madras High Court directions, the Election Commission in July 2007 directed the poll officials in Tamil Nadu to register cases against Jayalalitha for furnishing false affidavits during the 2001 assembly polls when she filed her nominations from four constituencies against the two permitted legally.

The EC asked the Chief Electoral Officer of the state to instruct the Returning Officers of Bhuvanagiri and Pudukottai to file cases before respective Magistrates against the ADMK leader. She had not disclosed before the Returning Officers that she had filed nominations from four seats.

The EC's action came in the wake of Madras High Court direction to it on June 13 to initiate action against her in accordance with law within a period of six weeks, observing that there was prima facie sufficient evidence to take action against her for filing false election declaration. The bench had acted on the public interest litigation by Dravida Munnetra Kazhagam parliamentarian C Kuppusamy.      

The petitioner had sought a direction to the Chief Election Commissioner to initiate appropriate action against Jayalalitha under section 177 of the Indian Penal Code for suppressing the fact that she is contesting from four seats while filing her nomination papers for four assembly constituencies in the 2001 assembly polls.  A candidate can contest only from two seats.

"Persons holding high offices/positions should be role models to the general public and if they venture to commit flagrant violations of the rules and laws made, that too knowingly, as in this case, it should not be taken lightly, sending wrong signals to the public that laws are meant only for the general public and not for the bigwigs, who can go scot free," the court had said in a hard-hitting observation.

Chief Election Commissioner N Gopalaswami had earlier said: "If the High Court has said that action should be taken within a specified period, we will do that."

The Commission also directed the CEO to issue show cause notices to the two poll officials who acted as Returning Officers at that time and get their explanation along with his recommendations on the disciplinary action to be taken against them, the sources said. The maximum punishment for the electoral offences committed by Jayalalitha is six months.

 After the polls, she was invited by the then Governor Fathima Beei to form a Ministry in May 2001. However, her appointment was quashed by the Supreme Court on November 23 the same year on a petition filed by DMK General Secretary Prof. K Anbazhagan saying that it was unconstitutional to appoint her as the chief minister as she had been convicted by a lower court in the TANSI land case.

Now back to the sequence of events prior to polling in the 2001 election, they make it clear that Jayalalitha frantically tried to arouse ‘Sympathy wave’ in her favour as in 1991 following Rajiv assassination.

If the campaign in Tamil Nadu in 2001 Assembly election lacked dash and colour, she added plenty of sound and fury over her disqualification from contesting. Election platforms reverberated with the cut and thrust of arguments; newspapers discussed the Election Commission of India's Order of August 28, 1997, which virtually barred the former Chief Minister from contesting.

Jayalalitha filed her nominations from four constituencies - Krishnagiri, Andipatti, Bhuvanagiri and Pudukottai. The Returning Officers rejected her nominations on two grounds. The first ground was that she was convicted and sentenced to two years' and three years' of imprisonment in two cases of corruption against her, and so Section 8 (3) of the Representation of the People Act disqualifies her from contesting. The 1997 order states that disqualification under Section 8 of the RPA for conviction for offences mentioned in the Act "takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal..."

Her papers were rejected also on the ground that Section 33 (7) (b) of the RPA bars candidates from filing nominations from more than two constituencies.

Her disqualification to contest was a major obstacle to her being sworn in Chief Minister even if her party won an absolute majority in the 234-member Assembly. The overwhelming legal opinion was that the Governor could not have her sworn in Chief Minister even if a victorious ADMK elects her as the leader of the legislature party unless the Madras High Court sets aside her conviction. Senior Advocate N. Natarajan, former Union Finance Minister and lawyer P. Chidambaram, former Tamil Nadu Law Minister and advocate S. Madhavan, and Janata Party president Subramanian Swamy argued that Jayalalitha cannot make use of the provision that allows a person who is sworn in Chief Minister to get elected within six months. Natarajan asked: "When the disqualification starts under the RPA from the date of conviction and continues for six years even after the person serves the sentence, how can she competently get elected? Even after six months, she suffers the same disqualification."

Jayalalitha was convicted and sentenced by P. Anbazhagan, Special Judge, Chennai, on October 9, 2000 to three years' rigorous imprisonment in the "Jaya Publications case", involving a deal for land of the State-owned Tamil Nadu Small Industries Corporation (TANSI) when she was Chief Minister from 1991 to 1996. In the "Sasi Enterprises case", the same Judge convicted and sentenced her to two years' rigorous imprisonment. Her close friend Sasikala Natarajan received similar sentences. The sentences were handed down to both under Sections 120-B (punishment for criminal conspiracy) and 409 (criminal breach of trust by a public servant or banker, merchant or agent) of the Indian Penal Code (IPC), and Sections 13 (2) and 13 (1) (c) and (d) of the Prevention of Corruption Act.

Jayalalitha appealed to the High Court, which suspended the sentences and granted her bail in November 2000. But the High Court did not suspend the convictions. She filed writ petitions in April 2001 seeking suspension of the convictions so that she could contest the elections. She, however, did not challenge the Election Commission's order.

Section 8 (3) of the RPA says that "a person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2) ) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period six years since his release."

Section 8 (4) of the RPA states that "Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3), a disqualification under either sub-section shall not, in the case of a person who on the date of conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed by the court."

Section 33 (7) (b) of the RPA says that "Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies) from more than two Assembly constituencies in that State." This provision was introduced in the RPA in 1996.

Jayalalitha quickly alleged that "an injustice" had been done to her. She said officials in Tamil Nadu where, she alleged, Chief Minister Kalaignar had "threatened" officials to reject her nomination. She also alleged that her papers were rejected to pave the way for the then Chennai Mayor M.K. Stalin to succeed his father as Chief Minister.

Kalaignar said he was not happy over the rejection of Jayalalitha's nominations. "The law had done its duty," he said. He stoutly denied that his government had interfered in the rejection. "In a democratic battle, I want to take on the enemy face-to-face. I don't want to fight the enemy after tying his hands." Besides, Kalaignar asked: "If the enemy has willingly trapped herself (by filing her nominations from four constituencies), how can I be held responsible for it ?"

On April 24, 2011, when nominations were scrutinised, there was fear of violence. The Returning Officers for Andipatti, Bhuvanigiri, Krishnagiri and Pudukottai, S.Jaya, P.Santhanam, M.Mathivanan and E.Kandasamy respectively, rejected Jayalalitha's nominations either because, under Section 8 (3) of the RPA, her disqualification started from the date of conviction by the trial court or because she filed her nominations from four constituencies or on both the counts.

The Returning Officers rejected arguments from Jayalalitha's counsel including Siddharth Shankar Ray, V. Ramaswami, N. Jothi and K. Malaisamy that the High Court had suspended her sentence and so the Election Commission's Order did not hold good. Jothi and Malaisamy argued that a candidate could file nominations from more than two constituencies but reserved the right to contest in two.

Subramanian Swamy, election agent for V.S. Chandralekha, who had filed her nominations from Andipatti, highlighted three points before the Returning Officer. The first was that Jayalalitha had admitted in her nomination of her being convicted under the PCA for two years (and three years). This attracted Section 8 (3) of the RPA and implied her disqualification from contesting. The second point was that since the Returning Officers were subject to the control, superintendence and discipline of the Election Commission, they should comply with its Order. The third was that the Madras High Court had dismissed her petition seeking a stay on her conviction. Besides, she had never challenged the validity of the Election Commission's Order.

Chidambaram also said there was no way Jayalalitha could become Chief Minister. The convention was that a Minister or a Chief Minister against whom the police filed a charge-sheet would resign. Former Union Minister Sedapatti R. Muthiah and former Bihar Chief Minister Laloo Prasad Yadav resigned under similar circumstances. Chidambaram said: "There is no precedent for a person convicted and sentenced by a court to be sworn in Chief Minister. I have every faith that the Tamil Nadu Governor will respect the Constitution." It was not possible for the Governor who gave the sanction to the State government to prosecute Jayalalitha in the corruption cases to invite her to form the government, Chidambaram said.

Subramanian Swamy said the rule that one should get elected to the legislature within six months of becoming the Chief Minister was applicable only to those who were not disqualified from becoming a member of the legislature.

Former Law Minister S. Madhavan said: "It may be political chicanery to claim that a person barred by the RPA to contest the election can be sworn in Chief Minister. But it will be ruinous for democratic governance." Madhavan said Jayalalitha had filed nominations from four constituencies even after giving an undertaking before the Returning Officer that she had not filed nominations from more than two.