Friday, March 13, 2009

Nawaz Sharif and Jayalalithaa: How Indian SC handled the disqualification issue

While reading an article on the ongoing turmoil in Pakistan, I couldn't miss the parallel between Nawaz Sharif's disqualification with that of Jayalalithaa in 2001. In both cases, the question to be adjudicated was whether a stay on sentence would amount to a stay on conviction, and whether for disqualification to go, a stay on conviction, and not just sentence, was equally necessary.

While upholding the Lahore High Court's Full Bench decision last month, the Pakistan Supreme Court has delivered only a brief order, saying reasons would be given later. The details of the Lahore High Court's judgment, delivered last year, throw only limited light on this aspect of the case. Both the Lahore High Court and the Pakistan Supreme Court seem to have adopted, without making any reference to it, the reasoning of the Indian Supreme Court, in Jayalalithaa's case (B.R.Kapur vs. State of Tamil Nadu)by maintaining that a suspension of sentence alone does not amount to stay on conviction.

The reason for referring to the Jayalalithaa's case in this post is that I was hardly convinced then about the Supreme Court's judgment disqualifying her on the subtle distinction between the execution of sentence and the sentence itself. Thus while the High Court stayed the execution of her sentence by the trial court, her sentence remained, along with her conviction, and this was a disqualification under Section 8(3) of RPA. That she was finally acquitted by the High Court and the Supreme Court, in the case in which the Trial court convicted her, was another matter.

In a series of articles here, here here,and here I dealt with the issues arising out of her disqualification controversy. This article deals with anomalies in S.8 of RPA. Some of the anomalies referred to in S.8(1)have later been corrected in an amendment in 2003. (See the RPA linked on the left under the Election Law).

It is interesting to note that Court judgments whether in India, or in Pakistan, are respected, howsoever litigants may differ with them. In the Jayalalithaa case too, her counsel told the Supreme Court that if she was disqualified, it would be going against the public opinion, and democracy and there could be mass protests. But the Court was not convinced, and eventually her disqualification passed off without any major incident. Pakistan, on the contrary, is in turmoil, following the Court's judgment, even though, in substance, it is not directed against the judiciary.

Jayalalithaa was not the first and the last time when the Courts intervened to determine the career of political leaders. In this article in Tribune carried in 2001, advocate and columnist, Anupam Gupta reflects on the wisdom of applying the rigours of election law on the political class.

His words are prescient: "It is important to bar the entry of criminals into politics. But it is no less important to distinguish between criminals — murdrers, dacoits or rapists — who enter politics, and politicians who are convicted of crime. However tired democratic India may be of its professional politicians, it is necessary for it to respect this distinction lest the campaign against criminalisation of politics end up in the depoliticisation of India — the best way for a democracy to commit suicide or slide into fascism."

In this post-verdict piece, Anupam Gupta explained why he was unconvinced about the legal soundness of the Supreme Court's judgment in the B.R.Kapur case, even though it is noteworthy for the moral benchmark it has set.

While judiciary in both Pakistan and India can claim to be robust while dealing with the political class, the fragility of Pakistan's other institutions, perhaps explains the current turbulence following the Pakistan Supreme Court's verdict.
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