No other criminal case of corruption would have acquired so much ‘disrepute’ for notoriety in the manipulation of judicial process in the country, perhaps in the world, as the cases against Jayalalitha, particularly the disproportionate assets case.
The Supreme Court verdict on a petition filed by DMK General Secretary Prof. K. Anbazhagan for removal of Bhavani Singh as Special Public Prosecutor in the appeals filed by former Tamil Nadu Chief Minister Jayalalitha and her co-accused in a Rs. 66.65-crore disproportionate assets case which proved inconclusive on Apr 15, gave an opportunity to Justice Madan B Lokur to raise serious concern over the health of the criminal justice system. He said Jayalalitha’s trial spanning 15 years in a disproportionate assets case was a classic example of what ails the criminal justice system. Referring to Prof Anbazhagan’s charge that Jayalalitha adopted all tactics to delay the trial, Justice Lokur said if the allegation was true, then “it is a reflection on the role that power and influence can play in criminal justice delivery .“
In a strongly-worded judgement, Justice Lokur separately observed that Bhavani Singh’s continuation as prosecutor in the appeals was a sign of the “failure of criminal justice delivery system” and entire appeals proceedings stands vitiated. Justice Lokur observed that it indicated how persons in power with influence could “manipulate” the criminal justice delivery system.
Justice Lokur said the fact that the trial went on for 15 years is itself unfortunate proof that justice delivery system has become a tool in the hands of the influential and powerful.
He said the time to correct this malaise is now as this case is a “classic illustration” of what is wrong with justice dispensation in the country.
Justice Lokur, who is the lead judge in the bench, said the justice delivery system is the ultimate loser. Justice Lokur, in his judgement, also regretted the extraordinary delay in finally deciding the case and said the criminal justice delivery system had come out to be a loser. It lamented use of money and political power to influence the system.
This vexed observation of the apex court in the case against Jayalalitha is not the first occasion for her being pulled up.
When the Supreme Court in November 2003 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 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.”
“In our view, the petitioner (Prof K. Anbazhagan) 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.
In February 2006, the Supreme Court pulled up Jayalalitha for adopting delaying tactics by not appearing for questioning in the three Income Tax cases pending before the Additional Chief Metropolitan Court, Economic Offences-1, Egmore, Chennai, since 1996.
A Bench, comprising Justice B.N. Agrawal and Justice A.K. Mathur, told her counsel ‘You [Jayalalitha] are making a mockery of the judicial process. How long you can drag the proceedings. You must set an example to others by presenting yourself in the court [trial court] for questioning under Section 313 Cr.P.C.’
Referring to a letter circulated by her counsel seeking six weeks adjournment for filing a counter, the Bench said: ‘What counter affidavit you can file in this matter. We want to pass an order today itself directing your client to be present in the court [trial court] for questioning under Section 313 Cr.P.C.’
The Income Tax department launched criminal proceedings in 1996 and 1997 against Jayalalitha for not filing her return for the assessment year 1993-94, though she had taxable income. Subsequently, cases were also launched against her associate Sasikala and Sasi Enterprises, in which both were partners, for not filing returns even though they had taxable income as per the statement of advance tax.
The department alleged that a petition was filed before the trial court seeking the personal appearance of Jayalalitha and Sasikala for questioning them under Section 313 Cr.P.C, but both had not appeared and had sought 42 adjournments between 2001 and 2003.
In their judgement in TANSI case in Nov 2003, Justices S.Rajendrababu and P.Venkatarama Reddi observed, “Though we have come to the conclusion that A-1 (Jayalalitha) is not guilty of the offences with which she was charged, it is clear that the property belonging to public sector undertakings was sold to firms of which A-1 is a partner at a time when she held the Office of the Chief Minister. Under the articles of association of the public sector undertaking, there is a requirement that before the sale of property is effected approval of the government is needed and sale cannot be completed without such approval because such an act will be ultra vires the powers of the Board of Directors of the company. Such approval was readily given by the Government machinery, though on paper she remained out of picture.
Officers even holding small posts like a Railway Property Keeper or a Cattle Pound Keeper or a Process Nazir who is put in charge of the sale of properties in a court auction cannot purchase the properties over which they have control. In the present case, in view of the fact that Government headed by the 1st Respondent (Jayalalitha) has to give permission in respect of the sale of property of these two companies, it certainly exercises powers over the same and thus there is conflict of interest. Where there is conflict of interest law has always avoided such sales being effected in favour of those who can jeopardize the fair outcome of the transaction. Whatever may be our findings on the question of valuation of the property whether it resulted in a pecuniary advantage to A-1 (Jayalalitha) or not, we are clear in our mind that if the officers and others become aware of the fact that the Chief Minister of the State is interested in purchasing some properties, the bureaucracy will be over-enthusiastic to see that the sale goes through smoothly and at a price desired by such Chief Minister. Though we can visualize such situation, such facts have to be established by concrete evidence to be convicted in a criminal case and is hard or difficult to get. At any rate, it is plain that such conduct is opposed to the spirit of the Code of Conduct if not its letter. Morally speaking, can there be one law for small officials of the Government and another law for the Chief Minister? In matters of such nature, is the Code of Conduct meant only to be kept as an `ornamental relic’ in a museum but not to be practiced? These aspects do worry our conscience. Respondent No.1 (Jayalalitha) in her anxiety to save her skin went to any length even to deny her signature on documents which her auditor and other Government officials identified.
Report leading to IPC makes it clear that criminal law merely prescribes the minimum standards of behaviour, while in public life, those who hold high offices should not take shelter under the umbrella of criminal law but stand by high probity. Further, criminal law is meant to deal with criminals ordinarily, while Code of Conduct is observed as gentlemen’s agreement. Persons in public life, who are gentlemen, follow such Code instead of taking escape routes by resorting to technical pleas as arise in criminal cases. Persons in public life are expected to maintain very high standards of probity, and particularly, when there is likely to be even least bit of conflict of interest between the office one holds and the acts to be done by such person, ought to desist himself from indulging in the same. Such standards of behaviour were scrupulously observed in the earlier days after independence, but those values how now dwindled and instances of persons holding high elective offices indulging in self-aggrandisement by utilizing Government property or in distribution of the largesse of the Government to their own favourties or for certain quid pro quo are on the increase. We have to strongly condemn such actions. Good ethical behaviour on the part of those who are in power is the hallmark of a good administration and people in public life must perform their duties in a spirit of public service rather than by assuming power to indulge in callous cupidity regardless of self-imposed discipline. Irrespective of the fact whether we reach the conclusion that A-1(Jayalalitha) is guilty of the offences with which she is charged or not, she must atone for the same by answering her conscience in the light of what we have stated not only by returning the property to TANSI unconditionally but also ponder over whether she had done the right thing in breaching the spirit of the Code of Conduct and giving rise to suspicion that rules and procedures were bent to acquire the public property for personal benefit, though trite to say that suspicion however strong cannot take place of legal proof in a criminal case and take steps to expiate herself”.
These are some of the harsh observations made by the higher judiciary against Jayalalitha. But despite such notorious record of manipulating judicial process, there are sections of the media and so-called elitists like Cho’s and Gurumurthys and unfortunately some in the higher judiciary who are still bent upon to save and promote her. In the process now, as Kalaignar has rightly pointed out, the judiciary is facing unprecedented criticism ‘for manipulating’ and trying to ‘subvert’ legal process. Alas! (19-04-14)
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