The Tamil Nadu Government in the Supreme Court on Tuesday described former Tamil Nadu Chief Minister Jayalalithaa as “undoubtedly one of the tallest leaders” of the State whose 75-day treatment, and finally death, at the Apollo Hospitals in Chennai need to be inquired into in “eminent public interest”.
Appearing before a Bench of Justices S. Abdul Nazeer and Krishna Murari, senior advocate Dushyant Dave, for the State, said “all the Government wants is an inquiry”.
The State narrated a series of events “which showed the seriousness of her death”. “Her estate was burgled within days. A guard there was murdered. Another person’s wife and daughter were killed. A third person manning the computer died… All this shows the seriousness of her death,” Mr. Dave submitted.
He said the investigation into these cases was on.
The State was replying to a petition filed by the Apollo Hospitals alleging bias on the part of the Government-appointed Justice A. Arumughaswamy Commission of Inquiry into the former Chief Minister’s death.
‘Fierce light of publicity’
Senior advocate Ranjit Kumar, for the Commission, said rumours and allegations distort. Truth needs to be established even if it brings the conduct of people into the “fierce light of publicity”. He submitted that there are cases in which rumours and allegations cannot be quelled by leaving it in the hands of the State police. A high-powered Commission of Inquiry has to be constituted to go through the facts and afford the parties concerned a free and fair atmosphere to make their statements, he said.
“For one year, they [Apollo] participated in the inquiry… they sat on the fence for a year and then they say the inquiry was biased. The doctrine of waiver applies here,” Mr. Dave submitted.
The senior lawyer argued that it would be “premature” on the part of the Supreme Court to intervene now.
Mr. Dave said the Commission would submit its report to the Government, which would apply its mind to decide whether to accept or reject it.
“Until the Government decides there is a need for action, nothing will happen. It is only when action is taken, they [Apollo] can object… However unpalatable the proceedings [before the Commission] may be, it has to be left to the future. The court cannot intervene now… Allow the Commission to complete its inquiry which is eminently in public interest,” Mr. Dave submitted.
Later in the hearing, Mr. Kumar said the Commission report along with the Government’s action taken report is placed before the Legislature.
“‘Action taken’ is in the past tense… What if, on the basis of the Commission report, an FIR is registered?” the Bench asked.
Mr. Kumar referred in general how in the past the Government had put reports by Commissions in the “cold storage” without taking any action.
Justice Nazeer said Commissions have been constituted for “time-pass.. just to defuse the situation”.
“Why do you appoint Commissions if you do not intend to make their reports public… is it to wriggle out of the situation?” Justice Nazeer asked.
“There are Commissions… and then there are Commissions,” Mr. Kumar responded. He referred to how the Justice Nanavati Commission report into the 1984 riots had led to prosecutions.
The court asked the Commission to file an affidavit clarifying whether the nature of its inquiry was public or in-camera .
During the hearing, the court asked whether the Commission can be reconstituted. To this, Mr. Dave referred to precedents of the apex court which held that the Executive, once it has constituted a Commission of Inquiry, cannot interfere in its functioning or usurp its powers. He said the Commission was merely a “fact-finding body”. Its report would be purely recommendatory in nature. “No prejudice would be caused to anybody,” he noted.
But then again Mr. Dave asked why should the court enter into that domain without Apollo asking for it. To buttress his point, Mr. Dave quoted an adage “without asking even mother will not give food”.
The senior advocate said the notification of the State appointing the Commission was valid. The Commission was acting well within its jurisdiction by examining the scope of Ms. Jayalalithaa’s treatment and her records. He said its mandate to inquire into whether her treatment was adequate or not allowed the Commission to call for the medical records.
“The Commission can look into whether the treatment given to her was the best… The death and the manner of death is important… If the nature of the treatment has to be examined, would it not cover adequacy or inadequacy of it?” Mr. Dave asked.
Reputation ‘blighted overnight’
Senior advocate Aryama Sundaram, for the hospital, had earlier argued that the reputation of the premier Chennai hospital, where Ms. Jayalalithaa breathed her last in 2016, was “blighted overnight” by the Commission, which took a tangent which was “unbelievable”. The senior lawyer had said the path followed by the Commission was straight out of the fairy tale “Alice in Wonderland”.
Mr. Sundaram submitted that the Commission had even got about to ask for the medical records concerning the hospitalisation of another former Tamil Nadu Chief Minister, M.G. Ramachandran, 37 years ago and his shifting to the Brooklyn hospital in the U.S.
The proceedings before the Commission were stayed by the Supreme Court in April 2019 on the basis of a plea by the Apollo Hospitals that the inquiry panel’s functioning was “replete with bias”.
The Apollo Hospitals submitted that the Commission, instead of conducting an impartial probe, had filed a pleading alleging “criminal intent” on the part of the hospital and its doctors.