Dangers of imperious impatience

After her conviction on September 27, former Tamil Nadu Chief Minister Jayalalithaa’s bail application came up for hearing on September 30 before the High Court of Karnataka. It was adjourned by the vacation bench of the Bangalore High Court to October 7 so that the regular bench may hear it when the court resumes functioning after the vacation.

Her lawyers moved the Chief Justice to advance the hearing to October 1. The same vacation judge reiterated her earlier order of listing it on October 6. Some lawyers, who may or may not be appearing in the matter, now have taken it upon themselves to stage a protest on the premises of the High Court of Karnataka. Television news channels have been showing her supporters vehemently condemning the tardiness of the process by which their leader has been ordered to remain behind bars pending hearing of her appeal. Members of the film fraternity have also come out in support of her, after she was convicted. Dark hints have been thrown about that somehow Karnataka and its government are complicit in ensuring payback for the hitherto uneasy relationship with Tamil Nadu over the question of sharing Cauvery waters.

Transfer of cases

It is pertinent to note that the State of Karnataka has never sought any role in this prosecution. It was the Supreme Court that transferred the prosecution of Ms. Jayalalithaa in 2003, when a fair trial did not seem possible in Tamil Nadu. The Supreme Court had similarly transferred the cases of M.K. Azhagiri, son of Dravida Munnetra Kazhagam leader M. Karunanidhi, and Jayendra Saraswathi, the seer of Kanchi Kamakoti Peetham, outside Tamil Nadu. In recent times, it transferred the Gujarat riot cases and some cases involving Amit Shah from Gujarat to Maharashtra. The transfer of Jayalalithaa’s case to Karnataka can be ascribed to no one but to the Supreme Court’s effort to secure a fair trial.

Issue of bail

The present custody of Ms. Jayalalithaa and her co-accused — Sasikala Natarajan, V. Sudhakaran and J. Elavarasi — in Bangalore central prison is a painful but necessary burden imposed upon Karnataka by judicial diktat. In private conversations, officials involved in Karnataka’s administration say that a speedy grant of bail pending appeal would not be unwelcome. However, the administration neither directs nor controls the judiciary. It is duty bound to faithfully execute every verdict until interdicted by a superior court.

For the moment, the shrillness of her supporters will not help Ms. Jayalalithaa’s cause. For her well-wishers, this is the time for restraint, not competitive breast beating. A person sentenced to four years imprisonment on charges of corruption cannot command the legal system to take her case out of turn. From prime minister to policeman, from cobbler to caliph, the gaze of law falls equally on everyone. However high may you be, the law is always above you.

The Supreme Court attracted tremendous criticism in the 1980s when the then Chief Justice E.S. Venkatramaiah was woken up at midnight and he proceeded to grant bail to industrialist L.M. Thapar. Thapar had been arrested on the basis of a Reserve Bank of India complaint that several companies run by him had violated the Foreign Exchange Regulation Act (FERA). However, the court received praise when it recently stepped in at 2 a.m. to prevent the possible execution of Surinder Kohli, who was convicted for the Nithari murders. While judges do have judicial powers to act beyond normal court hours, they can be persuaded to act thus only in cases of extreme urgency.

Given the current situation in which Ms. Jayalalithaa is, she has in her favour not only her gender, age and illness, but also the fact that an appeals court cannot possibly speedily hear and dispose of a gargantuan judgment of 1,136 pages.

An appeals court may also in the back of its mind, consider the human cost of her continued incarceration and the frenzied supporters who unnecessarily harm themselves and others. Already several incidents of her supporters resorting to suicide or indulging in acts of violence or protests have been reported from parts of Tamil Nadu.

But even though a court granting bail might consider all the preceding factors, it is also bound to consider the message that a speedy release is likely to convey. When bail under the Prevention of Corruption Act is routinely denied in cases where the sentence period is six months and the bribe amount is Rs.500, a hasty release in this case may be viewed with suspicion. So her lawyers will have to work hard at emphasising the positive and diminishing the negative aspects of her case.

A court can only be persuaded to grant bail; it cannot be coerced or overawed into doing so. The first rule of oral advocacy is “Go where the judge wants you to go.” When the vacation judge had shown her reluctance to have the matter heard out of turn, the persistence with which the lawyer sought advancement only came across as obdurate.

Patience pays

In such situations, it would only be wise to wait out a few more days. Suffering when patiently borne has its own persuasive effect. On the other hand, an impetuous, imperious impatience with procedures can irk those who are charged with judging the case.

I have often thought that Sanjay Dutt’s fate was sealed when his lawyers, in 1993, approached the Supreme Court’s vacation bench when Justice Jeevan Reddy was on it. He was a stern judge, of a leftist orientation and not someone who would countenance laxity of any kind. His continued presence on the case saw almost all of Mr. Dutt’s plausible defences at the trial being destroyed by premature disclosure at an interlocutory stage in the Supreme Court.

Celebrities and their lawyers need to guard against excesses. A lawyer’s rule, like that of a physician, must be – “first do no harm.” Lawyers, for fabulous fees or otherwise, must not be rushed into filing petitions and applications that cannot realistically be granted. Celebrities also need to guard against their celebrity status working against them. Lastly, they need to persuade their fans not to turn fanatic. Any breakdown in law and order might only cause a further postponement of the hearing.

As far as the case of Ms. Jayalalithaa’s imprisonment is concerned, the question is not whether bail will be granted or not. More accurately, it is a question of when it would be granted and on what terms. If the appeals court has some inkling about the time frame when the appeal can be finally heard, that will possibly be the decisive factor in its interlocutory decision on bail.

To all those who anxiously await developments in this case, Hamlet can provide some answers: “If it be now, ’tis not to come; if it be not to come, it will be now; if it be not now, yet it will come: the readiness is all.”

(Sanjay Hegde is a Supreme Court lawyer.)

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Printable version | Sep 18, 2021 12:13:13 PM | https://www.thehindu.com/opinion/lead/Dangers-of-imperious-impatience/article11057435.ece

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