The Hindu : A sage judgment

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Thursday, Nov 20, 2003

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A sage judgment

THE SUPREME COURT'S order transferring to Karnataka the two disproportionate wealth cases in which J. Jayalalithaa and four others, including N. Sasikalaa and T.T.V. Dinakaran, figure as the accused is not merely a big setback to the Tamil Nadu Chief Minister. It offers a morality tale revolving round the subversion of the course of justice through manipulation of a breathtaking kind. Consider these facts as well as the conclusions and inferences drawn from them by the Court. The magnitude of wealth detected, which is allegedly disproportionate to the accused persons' known sources of income, in the first case (CC No. 7 of 1997) is Rs. 66.65 crores. In the second case, Ms. Jayalalithaa and Mr. Dinakaran have been charge-sheeted for allegedly acquiring and possessing "pecuniary resources and property outside India" through clandestine transfer of funds. By August 2000, some 250 prosecution witnesses had been examined and the first case seemed to be moving towards a conclusion. After the All India Anna Dravida Munnetra Kazhagam was returned to power in the Tamil Nadu Assembly elections of May 2001, the course of justice took a crude and scandalous beating.

For example, when the trial resumed in November 2002, 76 witnesses were recalled for cross-examination on the ground that Ms. Jayalalithaa's senior counsel had been attending to other cases filed against her. Of the witnesses recalled, 64 resiled from their previous statements, with several of them claiming that they had given false statements "under pressure." In other words, they admitted to committing perjury. The Supreme Court strongly disapproves of the fact that the public prosecutor appointed by the Jayalalithaa regime did not object to the recall of the witnesses, did not make any attempt to have the witnesses declared hostile, and did not make the slightest move to have them prosecuted for perjury under Section 154 of the Indian Evidence Act. "It appears," observes the apex court in the judgment delivered on Tuesday by Justices Mr. S.N. Variava and Mr. H.K. Sema, "that the course of justice is being subverted... it does appear that the new public prosecutor is hand in glove with the accused... ." The Court also strongly disapproves of the exemption claimed by, and granted to, Chief Minister Jayalalithaa from personal appearance in the trial court to answer questions under Section 313 of the Criminal Procedure Code, as required by law; and of her being allowed to respond to the questionnaire in absentia. The judgment deprecates "the conduct of the public prosecutor in not opposing such a frivolous application."

The other very significant observation in the judgment concerns the locus standi of the petitioner, the general secretary of the opposition Dravida Munnetra Kazhagam. Rejecting the submission that the petitioner was pursuing "political vendetta," the Supreme Court comes to this emphatic conclusion: "In a democracy, the political opponents play an important role... They are the watchdogs of the government in power. It will be their effective weapon to counter the misdeeds and mischiefs of the government in power." Interestingly, this is precisely the point made by the eminent economist and Nobel Laureate, Professor Amartya Sen, in his analysis of the world of difference that an independent press and opposition parties make to public action that can prevent famines — and, arguably by extension, calamities of an avoidable kind. The Supreme Court's endorsement of this line of theoretical analysis is a splendid blow for democracy.

However, in the final analysis, the import of the apex court's landmark judgment in the transfer of the two cases against Ms. Jayalalithaa lies in the directions given. Since justice appears to have been subverted and it is clear that a free and fair criminal trial of the Chief Minister will not be possible in Tamil Nadu under the present circumstances — the interesting political question, of course, is whether such a trial of a head of government caught in similar circumstances will be possible in any home State in India — the Court has ordered that the two cases be transferred to Karnataka and also that the trial proceed expeditiously so that the rule of law is upheld. To achieve this end, the Court has issued very specific, well-conceived and indeed sage, practical directives. Extraordinary circumstances call for extraordinary remedies. The judgment of the highest court in the land will inspire everyone who believes that corruption and manipulative authoritarianism, which subvert the law and the cause of justice, should not be tolerated in a constitutional democracy.

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