Whose guilt is this?

The Supreme Court on July 10  held that charge-sheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before.
A Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya struck down as unconstitutional Section 8 (4) of the Representation of the People Act that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence. The Bench, however, made it clear that the ruling will be prospective and those who had already filed appeals in various High Courts or the Supreme Court against their convictions would be exempt from it.
Section 8 of the RP Act deals with disqualification on conviction for certain offences: A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years since his release. But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.
The Bench found it unconstitutional that convicted persons could be disqualified from contesting elections but could continue to be Members of Parliament and State Legislatures once elected.
Allowing two writ petitions filed by advocate Lily Thomas and Lok Prahari, through its General Secretary S. N. Shukla, the Bench said: “A reading of the two provisions in Articles 102(1) (e) and 191(1) (e) of the Constitution would make it abundantly clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a Member of either House of Parliament or Legislative Assembly or Legislative Council of the State. Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature.”
Writing the judgment, Justice Patnaik said: “The language of Articles 102(1) (e) and 191(1) (e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature and for a person to continue as a member of Parliament or the State Legislature has to be the same.”
The Bench said: “Section 8 (4) of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.”
The Bench held: “Looking at the affirmative terms of Articles 102(1) (e) and 191(1) (e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3) (a) and 190(3) (a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.”
The Bench said: “Under Section 8 (1) (2) and (3) of the Act, the disqualification takes effect from the date of conviction. Thus, there may be several sitting members of Parliament and State Legislatures who have already incurred disqualification by virtue of a conviction covered under Section 8 (1) (2) or (3) of the Act. Sitting members of Parliament and State Legislature who have already been convicted of any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court.”
However, the Bench said: “If any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.”
Publishing this news on the first page on July 11, the daily “The Hindu” also published photographs and details of some key cases of persons who will face automatic disqualification if convicted. In that table is the photograph of Tamil Nadu Chief Minister Jayalalitha and the wordings “Trial in the Rs. 66 crore ‘Disproportionate Assets’ case against Jayalalitha is at advanced stage in a Bangalore court. The examination of witnesses is over.”
But how long did it take to reach this stage? Even now is there any assurance for the case to reach the logical end of judgment being delivered soon? What were the other cases against her and their ends?
Jayalalitha was clearly/admittedly found guilty in the TANSI case, censured and acquitted by the Supreme Court advising her ‘to atone her conscience’ after she returned back the ill-gotten property of the government.
On Jayalalitha adopting dilatory tactics so as to protract proceedings in cases registered against her, the CB-CID on 16.11.1998, just one year after trial began in TANSI case in 1997, (case filed in 1996) told the Special court judge that the case suffered 90 adjournments till then. The case was finally disposed of by the Supreme Court in November 2003. The number of appeals made and the adjournments sought by Jayalalitha in all the 17 cases against her have been lost count of by the prosecution agencies, various courts, the ‘records’ maintaining organization like the Guinness and even the battery of lawyers appearing for her!
It was an established case of Jayalalitha misusing her power for personal gains. Also during the course of the trial in the case she disowned her own signatures on the documents of purchase of TANSI property which was later proved to be a false statement before the court. Can such a person with proven record of misuse of her office for personal ends/gains and one who did not hesitate to make a blatantly false statement before the court, be allowed again to occupy the same office?
If she had to ‘atone by answering her conscience’ (if at all she had one) as directed by the apex court, she should not have sought power again and quit public life. As is her wont, she didn’t and neither did law and courts prevent her comeback.
Jayalalitha never had the guts to face corruption cases filed against her straightaway and adopted all vexatious and dilatory tactics to prolong trial. On several occasions courts – from the apex court to lower civil court and criminal courts had pulled her up for unnecessarily prolonging hearings in cases on trivial grounds. But she was least perturbed and took the censures of the courts like the buffalo drenching in rains.
Take the instance of the Income Tax Returns case against her which is still pending in the courts for more than 15 years. The IT department had originally filed a complaint against her under section 276 CC of the Income Tax Act for non-filing of returns for 1993-94. The department estimated her income tax for relevant years at about Rs.1.04 crore, for which she was liable to remit a tax of Rs.46 lakh. Till November, 2000 with interest the outstanding stood at over Rs. One crore. The department filed the charge-sheet before the Additional Chief Metropolitan Magistrate (Economics Offences Court – I) in Chennai in 1996. Challenging the initiation of the case, Jayalalitha moved the High Court seeking to quash the proceedings. In November 1996 the HC stayed the proceedings. The department filed the petition contending that the trial was being indefinitely delayed because of the stay. Allowing the petition the HC vacated the stay in November 2000 and trial proceedings began in December 2000.
But the case did not end here. Jayalalitha adopts the modus operandi of raising some objection or the other and going on appeals after appeals to the higher courts up to the Supreme Court. On dismissal of the pretexts she takes, she will raise some other objection… and the process go on unending, never seeing the day of completion of trial and conviction.
In the Disproportionate Assets case, also filed in 1996, after Jayalalitha’s protracting attitude, the Supreme Court in 2003, on a petition filed by DMK General Secretary, transferred the cases to a Special Court in Bangalore and directed the State government to submit all documents relating to the case to the Bangalore court where after the trial should be conducted on a day-to-day basis, all the accused including the Chief Minister Jayalalitha should personally appear and depose during the trial. ‘The SC could not be a spectator to the dishonest way of the trial proceedings so far’. Every word and sentence of the SC order was a stricture on her dishonest attitude.
 Jayalalitha suffered a major setback when on November 19, 2003 the Supreme Court ordered the transfer of the two disproportionate assets cases against her and four others from a Chennai special court to a special court in Bangalore.
A Bench, comprising Justice S.N.Variava and Justice H.K. Sema, thereby allowed the petitions filed by the General Secretary of DMK, Prof. K. Anbazhagan, and the impleading application filed by the Janata Party president, Subramanian Swamy, praying for a direction to transfer the cases to a court outside Tamil Nadu to ensure a free and fair trial.
Besides  Jayalalitha, the other accused in the Rs. 66.65-crore wealth case are: N. Sasikala, . Jayalalitha’s erstwhile foster son, V. N. Sudhakaran and Ilavarasi and the former ADMK MP, T.T.V. Dinakaran is the accused in the other case.
The Bench held that Prof.Anbazhagan had made out a case that public confidence in the fairness of trial was being seriously undermined and great prejudice appeared to have been caused to the prosecution which could culminate in miscarriage of justice. The Bench rejected the charge made on behalf of Jayalalitha that the petitioner being a political opponent had filed the petition due to political vendetta and hence had no locus standi. “This submission has no force,” the Bench noted and added that “in a democracy, the political opponents play an important role both inside and outside the House. They are the watchdogs of the Government in power.” In that view of the matter, the petition lodged by such persons could not be brushed aside on the allegation of political vendetta.
The petitioner being a political opponent “is vitally interested in the administration of justice in the State” and is a “party interested” within the meaning of Sec. 406 (2) Criminal Procedure Code (which provides for transfer of a case from one court to another), the Bench said. Even otherwise, Dr. Swamy, who was the original complainant, had supported these transfer petitions, the Bench said.
The petitioner’s senior counsel, T.R. Andhyarujina, argued that if this case was allowed to continue in Chennai in the hostile atmosphere prevailing in the State it might result in another “Best Bakery case” of Gujarat (in which all the 21 accused were acquitted by a trial court) and the Bench, by transferring the case to Bangalore, has agreed with the contention.
The judges said that “it is undisputed that 76 witnesses have been recalled. Many of them had earlier been cross-examined. We were informed that witnesses were recalled as senior counsel for Jayalalitha had been busy attending to some other case filed against her when they were first examined.”
The Bench said that the fact that witnesses were recalled for cross-examination on flimsy grounds after Jayalalitha assumed power as Chief Minister and the Public Prosecutor appointed by her Government did not oppose and/or gave consent to application for recall of witnesses was indicative of how “judicial process is being subverted.”
“Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law,” the judges observed.
In the present case, the Bench said, “it appears that process of justice is being subverted... The circumstances are such that it would create reasonable apprehension in the minds of the public, at large, in general, and the petitioner, in particular, that there is every likelihood of failure of justice.”
The judges took serious exception to the trial court dispensing with the personal appearance of Jayalalitha and said “be you ever so high, the law is above you. The grounds cited by her in the application were not all mitigating circumstances to have granted dispensation of personal appearance. To say the least, that was a ploy adopted to circumvent the due process of law.”
Referring to the submissions made by K.K. Venugopal, senior counsel for Jayalalitha, that the apex court had allowed the accused to dispense with their personal appearance in certain cases, the Bench made it clear that “the general rule remains that the accused must answer the questions by personally remaining present in the court. It is only in exceptional circumstances that the general rule can be departed/dispensed with. In this case, Jayalalitha was available at Chennai and there was no exceptional exigency or circumstances such as her having to undertake a tedious long journey or incur a whopping expenditure to appear in court to answer the questions under Sec. 313 Cr.P.C... . The conduct of the Public Prosecutor in not opposing such a frivolous application has to be deprecated.”
The Bench issued the following directions: The State of Karnataka, in consultation with the Chief Justice of the High Court, shall constitute a special court under the Prevention of Corruption Act, 1988 to whom the two cases pending on the file of XI Addl. Sessions Judge, Chennai shall stand transferred. The special court to have its sittings in Bangalore. The State of Karnataka shall appoint a special judge within a month and trial shall start as soon as possible and will then proceed from day-to-day till completion. Tamil Nadu shall ensure that all documents and records are forthwith transferred to the special court in Bangalore.
The State shall appoint within six weeks a senior lawyer having experience in criminal trials as the Public Prosecutor to conduct these cases and he shall have an assistant of his choice; the investigating agency shall render all assistance to the Public Prosecutor and his assistant; the Public Prosecutor will be at liberty to recall witnesses who had resiled from their previous statement and declare them as hostile and seek permission to cross-examine them. He will also be at liberty to take action for perjury against some or all such witnesses. In case any witness asks for protection, Karnataka shall provide protection to that witness; the special judge shall put to all the accused all relevant evidence and documents appearing against them whilst recording their statement under Sec. 313 Cr.P.C.. All the accused shall personally appear in the court to answer questions under Sec. 313 Cr.P.C. on the day they are called upon to do so.
“In our view, the petitioner has raised many justifiable and reasonable apprehensions of miscarriage of justice and likelihood of bias, which would require our interference,” the judges said and ordered the transfer of the two cases to a special court in Bangalore.
But did she allow justice to prevail in the Special Court, Bangalore?
Had the trial taken place on a day-to-day basis and had Jayalalitha co-operated, the judgment would have been delivered in the case several years back. But the then ADMK regime took nearly two years to submit the documents in the Bangalore court as against six weeks prescribed by the SC. At least after that did the trial proceedings go on? A big no!
She and other five accused did not turn up in the court four times. Refusing any more time sought by her, the Judge of the Special Court posted the case for 18.4.2005. On that day also the senior lawyer appearing for her and the accused did not turn up. The judge warned of delivering ex-parte judgments and posted the case for May 5, 2005. Despite the court’s condition that she must appear without fail, she didn’t and her lawyer sought time for a longer period. The judge gave time up to June 16, 2005 and said that was final where after he will start the trial.
When her lawyer pleaded work in some other court, the irritated judge remarked, “Can the case be adjourned for you alone? This is unfair. Asking for time like this is unacceptable. For two and a half years you are prolonging the trial by seeking such adjournments. The Supreme Court has ordered for early completion of the trial. For the past six months no proceeding has taken place in the case. I am sitting alone here. I feel like being locked up in solitary confinement.”
Even after this outburst of the judge, nobody appeared on 16th and again three weeks’ adjournment was sought. The judge posted the case on 25th when also they didn’t appear and her lawyers pleaded for further adjournments.
And she was unabashedly seeking and getting repeated adjournments for more than 130 times acquiring the notoriety of being called “Vaaidhaa rani”.
In the meanwhile, once again she returned to power in May, 2011and on the very same evening of her assuming office, the Chief Secretary convened a ‘review meeting’ and directed the DVAC to ‘reinvestigate’ the disproportionate assets case against Jayalalitha. Once again Jayalalitha started her manoeuvres for ‘subverting judicial process’, as apprehended by the Supreme court.
The Special Court on June 16,2011 asked the Department of Vigilance and Anti-Corruption (DVAC), Chennai, why it bypassed protocol in the case of disproportionate assets filed against Jayalalitha. The DVAC has submitted a letter to the court, seeking time to re-investigate the matter. As per the rules, DVAC should submit the letter to the special prosecutor, who should then submit it to the court. The court asked DVAC why did it submit the letter directly to the court. DVAC Inspector Emannuel Jnanashekara, who submitted the letter to the court, expressed ignorance. The court then questioned DVAC DSP G Sambandham, who had written the letter. He said he had written the letter because his senior officials had instructed him to do so. The court then directed the DSP to find out the reason behind submitting the letter directly and tell it during next hearing.
Special prosecutor B V Acharya submitted that the Supreme Court had to shift the trial to Karnataka from Tamil Nadu because Tamil Nadu government was continually obstructing the trial by creating such hurdles.
But this Special prosecutor appointed on the direction of the Supreme Court also had to quit under duress. B.V. Acharya, Special Public Prosecutor (SPP) in the disproportionate assets case against Jayalalitha, on August 12,2012 resigned from the post, stating that he had suffered untold hardship and embarrassment at the instance of interested parties whose sole objective appears to be to get rid of me as SPP.
 Acharya resigned from the post of Advocate-General in February this year, alleging that the BJP government in Karnataka was pressuring him to quit the post of SPP.
When contacted,  Acharya, 78, said: “The interested parties, having failed to achieve the objective by inducements and threats, initiated several proceedings with [an] oblique motive. Petitions were filed before the High Court and the Governor seeking my removal from the post of SPP when I was holding the post of Advocate-General.”
“As a last resort, a private complaint was filed before the Special Lokayukta Court making false and baseless allegations against me, citing my position in the BMS Educational Trust, and an order was obtained for investigation against me. Finally, the High Court recently quashed that complaint, imposing a fine of Rs. 50,000 on the complainant. The filing of complaint and the order for investigation have hurt me deeply, causing acute embarrassment and mental agony to me,” he added.
Even the High Court, in its August 3 order quashing the complaint against him, had found that there was “sufficient weight” in Acharya’s contention that the complaint was motivated, and was an attempt to humiliate and coerce Acharya to quit his post as SPP.
Sources close to him said Acharya, who was appointed SPP in 2005 after the case was transferred to Bangalore from Chennai by an order of the Supreme Court, has narrated in his resignation letter the lack of progress in the trial due to the “obstructionist attitude” of defence.
 Acharya is said to have stated in the letter that he was not in a position to withstand the strain attached to the office of the SPP owing to these false allegations. He is also said to have expressed his “helplessness” in continuing in the post, though, by resigning he might be allowing the “interested parties” to achieve their objective [of removing him from the post of SPP] as he had to take care of his health too.
He is also said to have stated that he accepted the assignment of SPP assuming that it would be over in about a year, but even nearly eight years after the transfer of the trial to a Bangalore court, not much progress had been made because of petitions filed by the accused regularly before the High Court as well as the Supreme Court. This is how Jayalalitha was able to use her political relations with the ruling BJP in Karnataka to thwart the case against her and tire out the zealous SPP by her delaying tactics.
Finally in September, 2011 the Supreme Court ordered Jayalalitha to appear personally on 20 October before a Karnataka trial court, adjudicating a disproportionate assets case against her.
A bench of Justices Dalveer Bhandari and Deepak Verma, however, left it to the trial court judge to decide her plea for being examined at a separate building, other than the regular court, in view of security considerations. The apex court said the presiding judge shall ensure that she is examined in a proper environment. The apex court passed the order after Jayalalitha, in response to the earlier directions that she must appear on an earlier date, agreed through senior counsel Harish Salve that she would present herself before the trial court judge in Karnataka.
Rejecting Jayalalitha’s earlier plea for grant of exemption from personal appearance, an apex court bench had on September 5 observed that she was trying to delay proceedings. Jayalalitha had sought exemption from personal appearance for recording her statement under Section 313 of the Criminal Procedure Code on grounds of threat to her security.
Earlier, appearing for her, Salve had contended that the trial court had erroneously rejected her plea for exemption from personal appearance and pointed out that section 313(5) of the CrPC grants liberty to an accused to answer the questions in writing. Jayalalitha had pleaded that it has become difficult for her to appear before the trial court after becoming chief minister and there were definite security threat perceptions.
However, the argument failed to convince the bench, which said Section 313 of the CrPC was a salutary provision intended to provide principle of natural justice and also allow the magistrate concerned to observe the demeanour of the accused.
On July 10, 2012, the DMK had to file a petition in the Supreme Court seeking monitoring  Jayalalitha’s disproportionate assets case in Bangalore, accusing the ADMK chief and her aide  Sasikala for derailing the trial proceedings. Demanding a day-to-day trial, the petition claimed that despite the court’s order in 2003 for a speedy trial, both the accused were trying to delay the proceedings, which had reached its final stage.
The petition claimed Sasikala’s demand to examine 15 year old documents is frivolous and an attempt to delay the trial.
Sasikala approached Supreme Court to seek permission to examine some police documents for answering questions by a trial court. The top court declined to stay the trial. With a view to ‘ensuring fair trial’, the Supreme Court on September, 28, 2012 permitted Sasikala to inspect certain unmarked and un-exhibited documents in the disproportionate assets case pending against her in a Bangalore court within 21 days.
Giving this direction, a Bench of Justices P. Sathasivam and Ranjan Gogoi said “the liberty of an accused cannot be interfered with except under due process of law. The expression “due process of law” shall deem to include fairness in trial. The Cr.P.C. gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case.”
Writing the judgment Justice Gogoi said, “What has arisen before us is a situation where evidently the unmarked and un-exhibited documents of the case that are being demanded by the accused had been forwarded to the Court under Section 173 (5) but are not being relied upon by the prosecution.
The Bench said, “It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein.”
The Bench said, “It is not for the prosecution or for the Court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop and if the same is founded on a reasonable basis it is the duty of the Court as well as the prosecution to ensure that the accused should not be made to labour under any such perception and the same must be put to rest at the earliest.”
On the contention that the accused was seeking these documents at a belated stage, the bench said, “It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material.
The Bench noted that any failure on the part of the accused to put forward his/her version of the case in his examination under Section 313 Cr.P.C. might have the effect of curtailing his/her rights in the event the accused chooses to take up a specific defence and examine defence witnesses.
Thus they were able to use the judicial lacunas to delay the proceedings in the trial on all available flimsy grounds. A battery of highly paid lawyers are reported to be working round the year for this purpose.
Finally recording of Sasikala’s statement was also completed. And now witnesses are deposing in the court. We do not know what more tactics will be employed by the accused to prolong this case.
Later, Jayalalitha, in a statement on spectrum issue said, “With the Supreme Court monitoring… I trust justice will prevail and the culprits brought to book.” Very good! If Jayalalitha has so much confidence in and regard for the Supreme Court, what she should have done when in November 2003, the apex court found her guilty of misuse of power and criminal conspiracy and directed her to ‘atone for the same by answering her conscience?’ She must have quit public life itself never seeking to return to power. But obviously the Supreme Court was wrong in addressing such a course to a person who has nothing called conscience!
Reflecting the opinion of people of the State on the delay in disposal of the DA case against Jayalalitha in the context of the present judgment of the Supreme Court, a reader of ‘The Hindu’ B.Prashit of Puducherry in his letter to the ‘Letters to the Editor’ column on July 16 writes: “If the judiciary were able to deliver timely judgments, we would not have to face the problem of criminals in politics or, for that matter, in all walks of life. It is because of long years taken to complete a trial that criminals walk with their heads held high and honest persons are driven to self-imposed exile”. Nearly 7 crore people of Tamil Nadu witness the accused person returning to power twice and ruling their destiny due to the inordinate delay in completing the trial and delivering judgment in this case. Whose guilt is this?     r