Debating India

To appease an ally

Sunday 13 February 2005, by SUBRAMANIAN*T.S.

The Union Government arbitrarily notifies the transfer of corruption cases pending against Jayalalitha and others from special courts to regular courts - a move that could slow down the progress of the proceedings.

in Chennai

THE Bharatiya Janata Party-led Government at the Centre issued a surprise notification as a gazette extraordinary on February 5. This notification transferred to regular sessions judges 46 cases of corruption against All India Anna Dravida Munnetra Kazhagam (AIADMK) general secretary Jayalalitha, her former Ministers and some bureaucrats pending before three special judges in Chennai. It was issued by the Union Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training), which is under the charge of R. Janardhanan, who belongs to the AIADMK. (Union Law Minister M. Thambi Durai also belongs to the AIADMK.) The notification was issued under powers conferred by Section 4(2) of the Prevention of Corruption Act (PCA), 1988 to specify "special judges in the City of Chennai... to be the judges who shall try the offences" specified under Section 3(1) of the PCA.

Legal experts said the Centre’s notification was aimed at scuttling the law and that it may well amount to contempt of the Supreme Court as the matter was sub judice. The notification virtually superseded the trial under way before three special judges hearing the cases. These experts feared that it might precipitate a stalemate in the judicial process. They said that the Centre had no right to transfer the cases under Section 4(2) of the PCA.

Most political parties in Tamil Nadu reacted angrily to the notification. They said that it amounted to the BJP-led Government surrendering before Jayalalitha. The notification was meant to appease Jayalalitha and to ensure the survival of the BJP-led Government in office, they said. Chief Minister and Dravida Munnetra Kazhagam (DMK) president M. Karunanidhi said that the Centre’s action was mala fide and politically motivated. His Government would explore legal avenues to counter it. Karunanidhi said he could not recall any other instance of the Union Government interfering with judicial proceedings launched by the investigating agencies of a State Government, especially those involving cases of corruption. The State Government’s Directorate of Vigilance and Anti-Corruption (DVAC) and the Crime Branch-Criminal Investigation Department (CB-CID) had filed the cases in question.

The Centre’s controversial manoeuvre promises to trigger a battle between the judiciary and the executive. The first signs of this were available on February 8, when two special judges, V. Radhakrishnan and S. Sambandham, rejected memos from three of the accused in the cases, challenging the special judges’ competence to try the cases after the Centre’s notification was issued. Special Judge Radhakrishnan said the Centre’s notification did not have "legal force" since it had no legal sanction. It "is not worth the paper on which it is written," he said. He said that the notification transferring the cases during the pendency of a special leave petition in the Supreme Court might amount to contempt of court. Special Judge Sambandham said that the three special judges worked at the pleasure of the Madras High Court and the Supreme Court, and only these two entities could issue instructions and guidance to them. The memos were filed by Jayalalitha, former Union Minister Sedapatti R. Muthiah and former Additional Director-General of Police E. Hariharane. Jayalalitha’s counsel A. Jenasenan and N. Jyoti filed the memos before the special judges.

The Supreme Court was to hear again on February 15 arguments on the admissibility of a special leave petition (SLP) filed by Jayalalitha challenging the Madras High Court order of November 3, 1998, which upheld the constitutional validity of appointing the three special judges. Then Chief Justice of the Madras High Court M.S. Liberhan and Justice E. Padmanabhan had passed this order, saying that the appointment of the special judges was "not vitiated by mala fide, either factual or legal". The Supreme Court had declined to stay the trial of these cases before the three special judges, and the examination of witnesses was under way.

Under the notification, the special judges, namely XI, XII and XIII additional city civil and sessions judges, have been exclusively assigned to try cases filed by the Central Bureau of Investigation (CBI). This has been done, the notification said, under exercise of powers under Section 3(1) of the PCA. It said the CBI cases shall stand assigned to the three special judges on a rotational basis.

There are eight cases of corruption filed against Jayalalitha alone. In the "disproportionate wealth", "colour television sets" and "Pleasant Stay Hotel" cases, the special judges have framed charges against her. In the "granite" and "Meena Advertisers" cases, charge-sheets have not been filed. In the "coal" case and two "TANSI" (Tamil Nadu Small-scale Industries Corporation) cases involving Jaya Publications and Sasi Enterprises, the police have filed charge-sheets but the judges are yet to frame charges against the accused.

Ever since the BJP-led coalition came to power at the Centre, Jayalalitha has been seen to be exerting pressure on the Centre to dismiss the DMK Government in Tamil Nadu and to extricate herself from the corruption cases. The 18 AIADMK Lok Sabha MPs hold the key to the Government’s survival. The Centre has been seen as seeking to appease her on the legal front. This included the Centre appointing advocates who support the AIADMK as Central Government prosecutors in the cases filed earlier by the Central agencies against Jayalalitha.

Justice D. Raju of the Madras High Court was made Chief Justice of the Himachal Pradesh High Court in June 1998 after he and Justice Liberhan had heard arguments for eight months on writ petitions filed by Jayalalitha and others on the validity of the appointment of the three special judges. The transfer led to the cases being heard afresh by Justice Liberhan and Justice Padmanabhan. After these two judges quashed Jayalalitha’s and others’ petitions, Justice Liberhan was transferred as Chief Justice of the Andhra Pradesh High Court. A group of advocates sent a memorandum to President K.R. Narayanan alleging that the transfer, in the absence of any compelling reason, amounted to a threat to the independence of the judiciary.

Various strategems have been put to work to delay the proceedings before the three special judges. In the TANSI cases, Jayalalitha filed petition after petition seeking copies of the material placed before the Governor who had accorded sanction to prosecute her. She also wanted two TANSI cases involving Jaya Publications and Sasi Enterprises to be merged into one. Jayalalitha’s close friend and one of the accused, Sasikala Natarajan, filed petitions demanding that the documents, which are in English, be made available in Tamil because she knew only Tamil. Justice A. Raman of the Madras High Court ruled that the documents should be made available to her in Tamil. Jayalalitha promptly filed a petition that until the documents were furnished to Sasikala in Tamil, the cases should not be proceeded with. When the State Government initiated the process to appoint temporary-tenure translators, two AIADMK MPs, R. Dalavai Sundaram and R. Rajarathinam, filed a writ petition in the Madras High Court pleading that the recruitment should be done on the basis of reservation. Taking the cue from the order that documents should be made available in Tamil, other accused requested that documents be made available to them in their mother-tongue. These include Malayalam and Gujarati.

WHAT are the implications of the Centre’s latest notification? While advocate A. Jinasenan, who appears for Jayalalitha, declined to discuss "the effects of the G.O." (Government Order), other legal sources said the aim behind it was to delay the trial inordinately. While the three special judges were conducting the trial speedily and examining witnesses, the IV and VII additional sessions judges might not be able to conduct such speedy day trial because they are already overburdened with other cases. Advocates belonging to the AIADMK themselves admitted as much. Karunanidhi said on February 8 that the courts to which the Centre had transferred the cases were already overburdened with cases, including a number of murder cases. It might take at least three years for cases against Jayalalitha to come up for hearing, he said.

Advocate K.S. Natarajan said that "the legal process is being scuttled" by the notification. He said the Centre was "trying to bring about a stalemate". Natarajan pointed out that while the Madras High Court had appointed the three special judges and also allocated the 46 cases to them, the Centre was trying to circumvent the law by re-allocating the cases.

Other legal sources said the transfer of the cases amounted to contempt of court. "The Centre has definitely interfered with the cases allotted to the three special judges, whose appointment has been upheld by the Madras High Court. We have to see how the Supreme Court views this," one source said.

On November 3, 1998, Justice Liberhan and Justice Padmanabhan had dismissed a batch of writ petitions filed by Jayalalitha challenging the appointment of three additional courts presided over by three special judges. Justice Liberhan and Justice Padmanabhan said that the relevant notifications, one dated April 17, 1997 setting up three additional courts and another dated April 30, 1997 appointing three special judges to preside over these courts, "are not vitiated by mala fide, either factual or legal." The High Court upheld Section 3(1) of the PCA, which empowers the Central Government and State governments to appoint special judges to try corruption cases.

Section 3(1) of the PCA reads: "The Central Government or the State Government may, by notification in the official Gazette, appoint as many special judges as may be necessary for such area or areas for such a case or a group of cases as may be specified in the notification to try... any offence punishable under this Act."

Upholding the constitutional validity of the section, Justice Liberhan and Justice Padmanabhan observed that the expression "such a case or a group of cases" was not violative of Articles 14 and 21 of the Constitution. The Bench rejected the argument that the appointment of three special judges was "a supertrack trial" or "a regime trial." (Article 14 guarantees equality before law and Article 21 ensures protection of life and personal liberty.)

The High Court also rejected the contention of one of the petitioners, former AIADMK Minister R. Indira Kumari, that only the Central Government had the power under Section 4(2) of the PCA to appoint special judges and allocate cases to them. Section 4(2) of the PCA reads: "Every offence specified in Sub-section (1) of Section 3 shall be tried by the special judge for the area within which it was committed, or as the case may be, by the special judge appointed for the case, or where there are more special judges than one for the area, by such one of them as may be specified in this behalf by the Central Government."

Jayalalitha filed an SLP in the Supreme Court challenging the Madras High Court order. Then came a new turn in the Centre’s stand. On December 17, 1998 the Centre submitted before the Supreme Court that the DMK Government had no power to transfer the corruption cases against Jayalalitha and others to additional courts that were set up in 1997 if there was more than one court for the area. Attorney-General Soli Sorabjee told a Supreme Court Bench comprising Justice G.T. Nanavati and Justice S.P. Kurdukar that Section 4(2) of the PCA, 1988 vested power in the Central Government, not the State Government, to specify the special judges (who would try the corruption cases against Jayalalitha and others) if there was more than one special judge for the area. Sorabjee further said that the Government of India reserved its right to pass appropriate orders in accordance with law and in consultation with the Chief Justice of the Madras High Court regarding the transfer of corruption cases against Jayalalitha and others. This was the power that the Centre exercised to issue the controversial notification.

The Centre’s stand marked a stunning volte-face; it had earlier told the High Court that the State Government was empowered to set up additional courts to try Jayalalitha, her former Ministers and the bureaucrats. Karunanidhi alleged on December 19 that the Vajpayee Government "has come out in the open to rescue the Jayalalitha group" even while it proclaimed that the BJP was committed to battling corruption.

The following points emerged from a discussion Frontline had with senior counsel N. Natarajan. The Centre’s notification was aimed at pleasing Jayalalitha but in law it could not be sustained because the notification, it appeared, was not issued with the approval of or in consultation with the Madras High Court. The Madras High Court had approved the appointment of the three special judges to try a group of cases (against Jayalalitha and others), not for an area or areas. According to Natarajan, the Central Government had no control over any court appointed for a group of cases. If at all the Centre had any jurisdiction, it was only over special judges appointed for an area or areas. When the Madras High Court had approved the setting up of the three additional courts presided over by special judges for a group of cases, the Centre had no right to pass the notification without consulting the High Court.

The notification had been issued even as Jayalalitha’s SLP was due to come up for hearing before the Supreme Court on February 15. The apex court had earlier refused to stay the trial pending before the three special judges. Besides, Additional Solicitor-General C.S. Vaidyanathan had reportedly told the Supreme Court that the Centre was not interested in transferring the cases. The issue of the notification at this juncture made clear the pressures at work and the motives at play. Indeed, issuing the notification when the matter was pending before the Supreme Court might amount to contempt of court.

Former Tamil Nadu Law Minister and DMK leader S. Madhavan said the Centre could not exercise its power to issue the notification because the matter was sub judice. Madhavan said: "The Government Order does not say that the Madras High Court’s consent has been obtained for the transfer of cases. So the notification is not valid." He pointed out that the State Government’s notification appointing the three special judges had specifically said that they were appointed after consultation with the High Court. The draft notification of the State Government was prepared by the High Court in consultation with the judges of the High Court but it was issued by the State Government.

Madhavan pointed out that in November 1998 the High Court had rejected the argument of one of the petitioners that only the Centre had the power under Section 4(2) of the PCA to appoint special judges and allocate cases to them. The High Court had said: "It was further submitted that judges being appointed for the area or a group of cases under Section 4(2) of the Prevention of Corruption Act, 1988, the allocation of cases should have been made only by the Central Government. In my considered opinion, the argument on the face of it cannot be sustained."

POLITICAL parties reacted angrily to the issue of the notification. They said that it was a blatant attempt by the BJP-led Government to rescue Jayalalitha from the corruption cases she faced.

State Education Minister and DMK general secretary K. Anbazhagan said that the BJP leaders who claimed that they were apostles of dharma were bending the law to rescue Jayalalitha from corruption cases.

Communist Party of India (Marxist) State secretary N. Sankaraiah said that the transfer of cases was a blatant attempt by the BJP-led Government to abet corruption and rescue Jayalalitha and her former Ministers from corruption cases. Sankaraiah said the BJP-led Government had done this to survive in office. It was genuflecting under pressure from Jayalalitha, he said.

Tamil Maanila Congress leader A. Gopanna said that it was not proper for the Centre to issue the notification when the apex court was seized of the matter.

S. Tirunavukkarasu, MGR-ADMK leader, said: "The Centre’s plight has deteriorated to such an extent that one wonders who the Prime Minister is, Vajpayee or Jayalalitha." Tirunavukkarasu alleged that ever since Thambi Durai became Union Law Minister, efforts had been made to bend the law. The BJP had surrendered to Jayalalitha in order to survive in office, he added.

R.M. Veerappan, MGR Kazhagam founder, said that the notification amounted to contempt of court. Veerappan added, "The mystery behind George Fernandes saying hello to Jayalalitha has now been unravelled." (Defence Minister Fernandes who met Jayalalitha in Chennai on February 5, had said that he had come to say hello to her).

There were indications that the Centre was up to something. On January 30, Karunanidhi hit out at the Vajpayee Government by saying that "the Centre has furiously intensified its efforts to bend the law in order to rescue the Jayalalitha group, which wallowed in corruption." This happened even as the BJP proclaimed that it would root out corruption, he pointed out. The Chief Minister wondered whether all this was happening with the knowledge of Vajpayee.

With the special judges throwing out the petitions challenging their competence to try the corruption cases after the Centre’s notification, attention is now riveted on the Supreme Court when it would hear the SLP on February 15.

See online : Frontline


Vol. 16 :: No. 04 :: Feb. 13 - 26, 1999

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