Delaying due process

Print edition : October 17, 2014

K. Anbazhagan, DMK general secretary. He sought transfer of the trial outside Tamil Nadu. Photo: M. VEDHAN

B.V. Acharya. As Special Public Prosecutor, he listed in the court the applications and appeals filed with an aim to delay the proceedings. Photo: G.P. Sampath Kumar

IF the trial in the “disproportionate wealth case” against Jayalalithaa and three other accused dragged on for 18 years, much of the blame can be laid at the door of the accused, who came up with tactic after tactic to delay the proceedings. These tactics exasperated the Supreme Court so much that while allowing Dravida Munnetra Kazhagam (DMK) general secretary K. Anbazhagan’s pleas seeking transfer of the trial to a court outside Tamil Nadu, Justices S.N. Variava and H.K. Sema said on November 18, 2003: “The petitioner has made out a case that the public confidence in the fairness of the trial is being seriously undermined…. There is strong indication that the process of justice is being subverted.” Criticising the grant of dispensation from personal appearance to Jayalalithaa by the Special Court in Chennai in the cases (the disproportionate wealth case and the London Hotels case), the judges said, “Be you ever so high, the law is above you.”

Anbazhagan alleged that after the Jayalalithaa-led All India Anna Dravida Munnetra Kazhagam (AIADMK) returned to power in 2001 defeating the DMK and she became Chief Minister, 64 out of 76 prosecution witnesses against her and the other accused retracted their earlier statements. This, after they had been examined and cross-examined when the trial was under way in Chennai. Anbazhagan also alleged that the (new) public prosecutor did not object to the witnesses being recalled for deposition.

Justices Variava and Sema transferred the trial from Chennai to Bangalore and said it should start in Bangalore as soon as possible and that it should be conducted on a day-to-day basis. They ruled that a Special Court be set up in Bangalore under the Prevention of Corruption Act (PCA) by the Karnataka State in consultation with the Chief Justice of Karnataka.

Variety of tactics

The delaying tactics adopted by the accused came in a bewildering variety—Sasikala’s (second accused in the case) insistence on her being provided with the Tamil translation of the case documents; the AIADMK government’s repeated decisions to order a further investigation in the case, which annoyed the Supreme Court so much that it called them “attempts to frustrate the trial”; Jayalalithaa’s plea before the Supreme Court to quash the proceedings in the case under way in the Special Court in Bangalore; and her plea for a fresh translation of certain evidence in English by incorporating the suggestions from the interpreter (appointed by the court)—she objected to the use of active voice instead of passive voice, and vice versa.

Also, Sasikala wanted the Special Court to direct the interpreter to translate each question framed by the court in English into Tamil and record the same before putting it to her. She also wanted the interpreter to record her replies in Tamil before translating them into English and this English version to be recorded by the court. Besides, Sasikala wanted the court to maintain both the Tamil and English versions ( The Hindu, February 4, 2012).

Indeed, on March 8, 2011, the then Special Public Prosecutor B.V. Acharya listed the applications and appeals filed by the accused since 2010-11 before the Special Court and said these applications were aimed at delaying the proceedings.

DVAC’s role

The Directorate of Vigilance and Anti-Corruption (DVAC), Tamil Nadu, the investigating agency in the case, also intervened. A Deputy Superintendent of Police (DSP) of the DVAC wrote to the Judge of the Special Court in June 2011 that the DVAC had taken up further investigation in the wealth case against Jayalalithaa. The same agency had already completed the investigation in the case). This, after the AIADMK’s return to power in June 2011 and Jayalalithaa became Chief Minister. The letter from the DSP prompted Acharya to allege before the Special Court that the DVAC was colluding with the accused to prolong the proceedings in the case. He objected to the police officer writing directly to the judge. G. Sambandam, the DSP who had written the letter in the form of an application under Section 173 (8) of the Code of Criminal Procedure (CrPC), told the court that the case was being investigated further but apologised for writing to the court directly.

The Supreme Court threw out Jayalalithaa’s petitions seeking deferring of the hearing in the Special Court and setting aside of the Karnataka High Court order declining to quash the proceedings in the case. For instance, when Jayalalithaa had to appear before the Special Court at Parappana Agrahara, 20 km from Bangalore, in October 2011 to reply to questions (that is, to record her statement under Section 313 of the CrPC), she wanted the Supreme Court to defer the hearing. She alleged that the Karnataka government had failed to provide sufficient security, and her counsel said she was concerned about her safety. Justice Dalveer Bhandari and Justice Dipak Misra told Jayalalithaa’s counsel on October 19, 2011, “You [Jayalalithaa] are a public figure. How can you remain away from people?”

They also rejected her plea, citing security concerns, to shift the trial to a venue near the airport. “What more do you want?” they asked Jayalalithaa’s counsel. “The helipad has been prepared. Once the hearing is over, fly back home,” Justices Bhandari Misra told her counsel.

Again, the Supreme Court blasted the AIADMK move in January 2012 (when Jayalalithaa was Chief Minister) to order further investigation in the case. The apex court called it “an attempt to frustrate the trial”. Justice Dipak Misra (who partnered the Bench with Justice Dalveer Bhandari) told Jayalalithaa’s counsel on January 27, 2012: “By virtue of our order, all witnesses have been examined and recording of statements are in progress. How can any State government conduct further investigation at this stage in 2012? This is nothing but subterfuge for the trial that began in 2004 [in Bangalore]. Section 173 (8) of the CrPC [relating to further investigation] has some sanctity. There has to be some genuineness. This is nothing but an attempt to frustrate the trial.”

Four days later, Justices Bhandari and Misra threw out two special leave petitions filed by the AIADMK government against the Karnataka High Court’s order, which quashed the DVAC’s communication on June 25, 2011, for further investigation in the case. Justice Misra said, “You [police] have a right for further probe, but at what stage, is the question. If it is an attempt to frustrate the trial, the whole trial will become a mockery.”

On January 31, 2012, a bitter Acharya told the Supreme Court how, despite his best efforts, the trial had dragged on for the past eight years as application after application was being filed in the Special Court in Bangalore and the High Court. He said a similar attempt was made in 2001 to get an order for further investigation in what was called “London Hotels case”, which led to the whole case being weakened ( The Hindu, February 1, 2012).

T.R. Andhyarunjina, Senior Advocate, who appeared for Anbazhagan, charged the Tamil Nadu government with replacing several officers with a new set of officers between May 16, 2001, and June 3, 2011, and, in the guise of reviewing various cases, deciding to initiate a further investigation in the disproportionate wealth case. Although the charge sheet was filed in the disproportionate assets case against her in June 1997, Andhyarunjina said, various attempts were being made by Jayalalithaa to frustrate and delay the trial by all means.

Court’s criticism

Jayalalithaa faced the severest criticism from the Supreme Court on November 18, 2003, when it transferred the trial in the case from a Special Court in Chennai to a Special Court to be set up in Bangalore. The order of Justice Variava and Justice Sema, allowing Anbazhagan’s petitions, said: “In the present case, the circumstances… are such as to create a reasonable apprehension in the minds of the public at large in general and the petitioner in particular that there is every likelihood of failure of justice.”

Anbazhagan alleged that the new public prosecutor did not make any attempt to declare the 64 witnesses, who resiled from their statements, hostile; to cross-examine them by using Section 154 (questions by party to his own witness) of the Indian Evidence Act; or to take action against them for perjury. Indeed, Anbazhagan said, Jayalalithaa’s presence was dispensed with during her examination. Instead, a questionnaire was sent to her and her reply was sent to the court.

Justice Variava and Justice Sema said: “No attempt has been made to elicit or find out whether witnesses were resiling because they are now under pressure to do so. It does appear that the new public prosecutor is hand in glove with the accused, thereby causing a reasonable apprehension of likelihood of failure of justice in the minds of the public at large. There is a strong indication that the process of justice is being subverted” ( Frontline, December 19, 2003).

The judges pilloried the grant of dispensation from personal appearance to Jayalalithaa in the two cases, required under Section 313 CrPC, which deals with the court’s power to examine the accused. “Be you ever so high, the law is above you,” the Bench said in its order. In its view, the grounds did not constitute mitigating circumstances to grant her dispensation from personal appearance. Justice Variava and Justice Sema observed, “To say the least, this was a ploy adopted to circumvent the due process of law.”

T.S. Subramanian