R. Balakrishna Pillai, the veteran politician who has been leading the regional political party named the Kerala Congress (B), was, on February 18, sent to jail for certain acts of corruption he committed some 20 years ago when he was Kerala's Minister for Electricity. Two others including a former Chairman of the Kerala State Electricity Board were also sentenced in the same case. The Supreme Court ordered this punishment on an appeal filed not by the State government but by the present Chief Minister of the State, V.S. Achuthanandan. He filed that appeal in the early-1990s in his individual capacity when he was the Leader of the Opposition, seeking a reversal of an acquittal that had been granted by the Kerala High Court.

It is a basic principle of criminal jurisprudence that the initial presumption of innocence enjoyed by accused persons is reinforced by an acquittal. On appeal it shall be upset by a superior tribunal only in rare cases and only on the strength of clear and loud grounds. Only in a small percentage of cases does the Supreme Court intervene in cases that involve such a presumption of innocence.

A ruling of the Supreme Court is final not because it is infallible; it is infallible because it is constitutionally final and structurally supreme. Prejudice or ignorance sometimes leads some robed brethren into grave errors. Had there been a court above the Supreme Court, many of its judgments would have suffered reversal. Look at the case marked 1973 4SCC 225 where the view of 11 judges headed by Subbarao J. (Golaknath case) was upset by little reasoning in justification in the Kesavananda Bharathi case. Indeed, several decisions of the highest court have been found to be fallible and have suffered eclipse over the years.

In Balakrishna Pillai's case, the trial court convicted the accused but a single judge of the High Court set aside that judgment and ordered acquittal. The Supreme Court upset the High Court's decision. Curiously, the State government under the United Democratic Front, of which the Kerala Congress(B) was a part, did not file an appeal — presumably because it agreed in conscience with the acquittal. Mr. Achuthanandan, however, filed a special leave petition. The Left Democratic Front (LDF) government which came to power later also did not file an appeal. In short, neither the party that was in power during the initial relevant period, nor the LDF government which came to power later, challenged the verdict of innocence that was rendered by the High Court.

The ultimate sentence issued by the Supreme Court is valid because the court has the jurisdiction. But it has been argued that the court supported the trial court's conviction without giving an opportunity to Balakrishna Pillai to show cause against the sentence.

It would be right for the public to draw the conclusion that the LDF government did not care to question the acquittal. It cannot take credit for the present conviction because it did not move the Supreme Court questioning the acquittal. Mr. Achuthanandan's appeal was not on behalf of the government but as an individual. The government objected to the acquittal, but only at the last moment. On the whole, had Mr. Achuthanandan not pressed his appeal in the Supreme Court, Balakrishna Pillai would have got off the hook since no proceedings had been initiated by anyone including the government.

The Supreme Court's pronouncement is the final judicial verdict and it has to be accepted. The only remedy that is open to Balakrishna Pillai now is under the clemency jurisdiction. That is a different jurisprudence dependent on other public considerations governed by Article 161, as has been explained in Maru Ram (1980 AIR 2147).

Review, an illusion

The possibility of a review of the punishment, as has been suggested in sections of the media, is but an illusion. It has to be done before the same Bench and there can be no obligatory public hearing except where the same Bench prima facie concludes that it has committed a grievous error. That happens rarely. It is hard to imagine the same Bench now considering a strong judgment it has delivered as a blunder. Clemency in this case is more a matter for the President.

In this case, in its well reasoned judgment the Supreme Court has discussed every facet of the case and come to a conclusion and a verdict that sounds satisfactory. Two views are possible with respect to any conclusion. In this case it is a single judge of the High Court versus two judges of the Supreme Court. Having read the entire judgment it seems to me that it is difficult to hold the conclusion as untenable. That is why I hold the view that no review is possible and only clemency can operate to save Balakrishna Pillai from behind the iron bars. But a clemency has to be rational and not fanciful. This case is indeed a tough one where the principles of criminal justice are on serious trial — in full public glare as well.

I must express my deep appreciation of the real hero behind this prosecution and conviction, who persisted with the criminal case for close to a decade. Mr. Achuthanandan, who was then not in power but in the Opposition, chose to hold the flag of justice aloft all alone, and because of his persistence won a victory for justice.

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