The Jayalalithaa saga

INDIAN POLITICS is as vindictive in its revenge as it is uneasy in its virtue. Tamil Nadu politics sports a post-Emergency paradigm of `regime revenge', which has been taken to its maximal limits. Before the Emergency, `regime revenge' took many forms. President's rule was imposed on Opposition States. Defections toppled governments. Commissions of inquiry were set up to probe the conduct of the predecessor regime for overtly political reasons to embarrass opponents and not to achieve tangible results. After the Emergency (1975-77), a series of investigative Commissions were appointed to investigate the `Emergency'. Eventually, nothing came of these endeavours. But, all this set us a definite pattern of ``regime revenge''. Politicians who succeeded into power felt they had earned the right to take revenge on the previous regimes whether through Commissions or criminal prosecution.

Tamil Nadu has become the citadel of `regime revenge' politics. During the Emergency, President's Rule was imposed in 1976 on allegations of corruption against the DMK Government. In the 1990s, it was hardly surprising that Ms. Jayalalithaa and her Ministers were at the receiving end of over 20 prosecutions. Mr. Karunanidhi decided to make a spectacle of these trials by combining them to be heard together in three special courts in Chennai.

Our police can be as sophisticated as they can be crude. So a number of `credible' cases were filed and prosecuted in the full glare of publicity in the specially designated and designed courts. Once a prejudice is built, many things, both right and wrong, flow with the prejudice. Ms. Jayalalithaa is now acquitted in three cases. An acquittal does not necessarily mean that the original charges did not initially disclose an offence. Part of the politics of `regime revenge' is to file credible cases. But, in this process the damage done to Tamil Nadu politics has been immense. ``Revenge regime'' politics has upstaged all other social and political concerns. Ms. Jayalalithaa also wants revenge.

But Ms. Jayalalithaa's story is far from over. People have not forgotten the grand wedding which she patronised. It flaunted excessive wealth beyond imagination. There are more cases and instances of allegations. Whatever the legal strength of each allegation, these cases cannot be wished away. They have to go through the legal grind unless shown not to disclose an offence or tainted with malafide prosecution.

Indian electoral law and politics is confronted with distinctions over `tainted', `corrupt', `convicted' and `disqualified' politicians. `Tainted' politicians include both innocent and un-convicted criminals. They suffer no electoral disqualifications as their cases meander slowly through courts. The Law Commission suggested that those formally charged, but not convicted, for disqualifactory crimes should be excluded from election and public office. Indian Constitutional practice suggests that `tainted' and charged (but unconvicted) politicians should be dealt with by peoples' democracy. India's problem has been that the people have constantly voted `tainted' politicians into power. But, electoral absolution does not mean innocence. Therein lies the problem. The Jayalalithaa acquittals are, perhaps, a message to seriously consider the overall proposal of the Law Commission to bring charged `tainted' politicians within the domain of disqualification and not leave such matters just to the electorate.

Ms. Jayalalithaa has been politically endorsed by the electorate and legally acquitted in some cases. What happens next? The immediate question is whether an appeal can be filed in the Supreme Court. The State Government is under Ms. Jayalalithaa's thumb and is unlikely to file an appeal. In the Janata Dal case (1992), the Supreme Court raised serious doubts on whether third parties have the locus to file appeals and revisions in criminal cases. But a writ may lie asking the State why serious consideration not be given to filing an appeal. This flows from the hawala case (1998). Or, indeed, on a third party appeal, the Supreme Court may feel that a proper case has been made out because the acquittal judgment is so seriously flawed as to be perverse. This, in part, occasioned the Supreme Court's interference in the Janata Dal case. For that, a detailed examination of the acquittal cases is called for.

There remains the serious question as to whether Ms. Jayalalithaa can be sworn in as Chief Minister. With no present electoral disqualification, the path to her enthronement is temporarily clear. But, should she claim the title before or after she has been elected as an MLA? An un-elected person cannot be a Chief Minister for a second time under the six-month clause. It is in Ms. Jayalalithaa's interest to get elected as an MLA before she stakes a claim as Chief Minister, for three reasons. First, she will not have to confront the issue of seeking a second un-elected six- month term. Second, she will be protected from immediate disqualification during appeal in respect of convictions in these and other cases which will go on. Third, confidence in democracy will be enhanced immensely. Like Indira Gandhi, Ms. Jayalalithaa may not want to leave her throne to someone else for too long. But this is not a public interest reason. The rule of law and justice are more important than any individual's claim to power.

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