Judiciary on Trial !

Commenting on the Supreme Court on October 19 ordering Jayalalitha to appear before the Special Court in Bangalore on the next day in the Disproportionate Assets case against her and her live-in aide Sasikala, DMK General Secretary Prof. K. Anbazhagan said, “It was inevitable for the court, because it felt that it was taken for granted by the accused, who perhaps had taken the maximum number of adjournments (vaidha) in the country and any more leniency shown to them would lead to non-disposal of any case.”

In a pre-Assembly election interview given to the NDTV in March last, Jayalalitha took exception to the North Indian media calling her also as corrupt along with other leaders of TN and said that the cases filed against her were ‘politically vindictive’ and that she had come out clean in all of them except in a couple of cases. Those who had followed the case-histories of her, know that her claim is a misinterpretation and debauched. A reading of the Supreme Court judgement in TANSI case will make clear as to whether she was acquitted or managed to get it. If at all she had any respect for judiciary, she should have quit public life for ever if she had ‘atoned her conscience’, as the apex court wanted.

It was indeed trying for courts hearing her cases and appeals after appeals for years and years. Taking this Disproportionate Assets case filed in the year 1997, the journey all along these 14 years was long-drawn out and tedious involving Special courts in Chennai and Bangalore, Madras and Karnataka High Courts and Supreme Court. That she acquired the distinction of being called ‘Vaaidha Rani’ for seeking adjournments for more than 130 times in Special Court, Bangalore alone, beside the protractive tactics adopted by her in Chennai trial and on appeals to higher courts, on flimsy grounds, beginning with challenging the very setting up of special court.

After delaying for six years, and in between Jayalalitha returning to power in 2001, the ‘process of justice was being subverted’ (Supreme Court observation). On November 18, 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 praying for a direction to transfer the cases to a court outside Tamil Nadu to ensure a free and fair trial.

The court had on February 28 stayed all further proceedings in the two cases pending before a Chennai Special Court. 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.

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 CrPC. 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 should 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 CrPC. All the accused shall personally appear in the court to answer questions under Sec. 313 CrPC 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 Jayalalitha, as was her wont, once again moved the apex court. The Supreme Court rejected an application of Jayalalitha, seeking transfer of the Disproportionate Assets cases against her and four others from a Bangalore court to a court in any other State, preferably in Andhra Pradesh.

A Bench consisting of Justice S.N. Variava and Justice H.K. Sema held that “no case is made out for modification of our order [dated November 18, 2003, shifting the two cases from a Chennai special court to a Bangalore court]. The petitions are dismissed being devoid of merits.”

“To say the least, the apprehensions [of Jayalalitha] with regard to the Cauvery water dispute and forest brigand Veerappan have got nothing to do with the judicial function of the court. At the same time, the security and safety of the applicant and witnesses are well safeguarded as highlighted in the counter affidavit of Karnataka,” the Bench said.

Seeking to modify the order, Jayalalitha had contended that in view of the surcharged atmosphere and large scale agitation by a section of the people of Karnataka targeting her as well as attacks on Tamil speaking people caused by the highly sensitive Cauvery water dispute, she would not get a free and fair trial in that State.

Rejecting this submission, the Bench pointed out that Karnataka, in its affidavit, had stated that the “false and self-serving” statements had been made by Jayalalitha to bolster her plea for relief. Also, there was no reason to apprehend that Karnataka would not take adequate steps for ensuring a fair and free trial as directed by the apex court.

The Bench also noted the submission made by the State Advocate-General, A.N. Jayaram, that Karnataka “has no interest in the outcome of the trial” and “looks upon it only as a constitutional duty to be discharged to effectuate the order of the apex court.” Further, the Advocate-General had submitted that the State had already constituted the special court on the City Civil Court campus in Bangalore and a special judge had been appointed.

In the light of these submissions, the Bench said “we are not persuaded to re-appreciate the circumstances leading to the filing of the transfer petitions and order of this court transferring the same to Karnataka.”

The Bench noted that “after hearing both the sides and threadbare discussion, this court was of the view that it is expedient for the ends of justice [that] the cases be transferred from Tamil Nadu to Karnataka for trial in accordance with law.”

Referring to her plea for shifting the case to Pondicherry, the Bench said that under Section 406 of the Code of Criminal Procedure, the apex court could order transfer of a case from the jurisdiction of one High Court to another, and in respect of Pondicherry, it was within the jurisdiction of the Madras High Court. Therefore, if her submission was accepted it would amount to transfer of a case from the Madras High Court to the same jurisdiction of the High Court and that situation was not contemplated under Section 406 Cr.P.C.

The Judges said “we must unequivocally say that in a democratic country like ours, governed by the Rule of Law, the efficient and independent judiciary manned the subordinate courts, where justice is administered impartially, fearless of public glamour, regardless of public responses and indifferent to private, political or partisan influences.”

“We have no least doubt in our mind that the judge who has been assigned the job will do well in discharging his divine duty in accordance with law, keeping in mind the above principles,” the Bench observed and dismissed the application.

Again she moved a review petition and on Apr.28, 2004, the Supreme Court rejected Jayalalitha’s petition seeking review of its order transferring the trial of two disproportionate assets cases from Chennai to a special court in Bangalore. Her review petition was rejected by a division bench of Justices S.. Variava and H.K. Sema. Jayalalitha had requested the court to shift the trial of the Rs.66.67 crore Disproportionate Assets cases to any state other than Karnataka.

Once again she moved a curative petition in the Supreme Court on Jan.18, 2005. Leaving no option for Jayalalitha but to face trial at Bangalore, the Supreme Court dismissed her petition seeking stay on the trial and permission to argue for transfer of the case outside Karnataka.

A five-Judge Bench comprising Chief Justice R C Lahoti, Justice N Santosh Hegde, Justice Y K Sabharwal, Justice S N Variava and Justice H K Sema dismissed her curative petition against the Court’s November 18, 2003 order transferring the trial from Chennai to Bangalore for holding a “free and fair” trial. The November 19 order was passed by a Bench comprising Justice Variava and Justice Sema on a petition filed by DMK leader K Anbazhagan seeking transfer of the case outside the State alleging “undue haste” shown by prosecution to complete the trial against the Chief Minister. The same Bench had on February 17, 2004 dismissed an application seeking modification of the order on the ground that the situation in Karnataka was hostile to her in view of her stand in the ongoing Cauvery water dispute between Tamil Nadu and Karnataka. It had on April 28 dismissed her petition seeking review of the November 18 order and seeking transfer of the case outside Karnataka to any other State including Pondicherry. Jayalalitha exercised her last option in August last year by filing the curative petition. The five-Judge Bench dismissed it saying “no case was made out” according to the parameters fixed by apex Court for entertaining her curative petition.

With all these the trial in the Special court was set to begin. According to SC order, senior counsel Acharya was appointed as the Public Prosecutor and a chargesheet running to about 75,000 pages was filed and 45 witnesses were cited. In the very next week, Jayalalitha filed a petition in Karnataka High Court seeking to discharge her in the case, which was dismissed on March 18, 2004. From then on the accused pleaded adjournments for reasons such as quashing the trial, demanding three sets of chargesheet to each of the four accused, copy of the chargesheet translated into English, finding mistakes in translation, demanding cross examination of translators, against deposition of witnesses, the father of the counsel of one of the accused expired, finding out mistakes in chargesheet, Assembly polls in TN, time for appointing new counsel etc.,

Adjournments sought since 2005:

2005: Mar.14, 28, May 16, 25, 27, 28, June 4,7,9, 21, 22, 23, 27, 29, July 12, 16, 22, 23, 26, 27, Aug. 2, 10, 26, Oct.10, Nov.19

2006: June 3, July 29, Sep.2, Oct.28, Nov.25

2007: Feb.9, Mar.24, Apr.28, July 21, Sep.22, Oct.27, Dec.25

2008: Feb.2, Apr.5, May 3, Aug.2, Sep.6, 27, Nov.3, Dec.6

2009: Jan.3, Apr.4, 30, May 5, June 16, July 23, Aug.27, Sep.5, 10, Oct.20, Dec.19

2010: Jan. 23, 30, Feb.8, 19, 25, Mar.3, 4, 5, 18, 22, May 3, 7, 25, June 3, 14, 26, 30, July 22, Aug.6, 21, 28, Sep.13, 23, 30, Oct.19, Nov.18, 25, 30, Dec.15, 16

2011 : Jan 4, 18, 19, 27, 29, Feb.8, 14, Mar.9, 26, Apr.2, 6, 19, 26, May 15, 26,30, Jun.3, 8, 15, 18, 23, July 8, 14 ……

After all impediments caused by her and her associates to the due process of law, the Special court started examining 45 prosecution witnesses from Sep.30 2010 at the rate of five a day and completed it. The counsels for the accused also completed cross examination of witnesses. Her plea for re-examination of witnesses was also rejected.

After the ADMK won the election and Jayalalitha assumed office on May 16 last, it was reported that the Chief Secretary convened a review meeting of the DVAC and directed them to reinvestigate the Assets case against her. But on a petition from Prof. K.Anbazhagan the Special court and then the Karnataka High Court quashed the decision of DVAC to conduct further probe which would only be an attempt to destroy the evidence already on record.

The High Court noticed that when the case was transferred to the Special Court in Bangalore, accused No.1 (Jayalalitha) was the Chief Minister of Tamil Nadu and in the subsequent elections her party was defeated. However, in the recent elections (May 2011) held to the State Assembly, the party headed by her secured majority and she has been sworn in as Chief Minister just a few days prior to the filing of this application.

“The fact that now the Superintendent of Police, Directorate of Vigilance and Anti-Corruption, Chennai, is trying to bypass the SPP makes this court to note that the observations made by the Apex Court in the order of transfer that the process of justice was being subverted would apply to the present situation,” the court said.

It is after all these that Jayalalitha was directed by the Supreme Court on Oct.19 to appear before the Special Court in Bangalore on the next day to answer questions under Sec.313 CrPC. She did so on Oct.20 and 21 and answered 567 Questions out of 1,339 questions and the session is posted on Nov.8 for further questioning. But her counsel had informed Media that they would again approach the SC for remedy because ‘she was ordered to appear only for two days.’ So, when the process will be completed and the D-day for judgement will dawn is a million-dollar question!

In all the cases against her, over 14 years since 1997, the period is a testing time for the patience, perseverance and objectivity of the courts at all levels. In short, the judiciary was put on trial!