Qualified respite

The Supreme Court grants bail to former Tamil Nadu Chief Minister Jayalalithaa and her co-convicts in the disproportionate wealth case but makes it clear that it will not tolerate any attempt to delay the appeal proceedings.

AIADMK general secretary Jayalalithaa arriving at her residence in Chennai from Bangalore after getting bail from the Supreme Court on October 18.

FORMER Tamil Nadu Chief Minister Jayalalithaa secured a stay on her sentence in the disproportionate assets case from the Supreme Court on October 17 amid high drama. Even as the packed Court No.1 was proceeding to hear Case No.65 on the day’s cause list, the suspense over whether it would grant her plea was enough to make those present pay close attention to each and every argument advanced by her counsel and follow the Bench’s brief observations.

The Bench, comprising Chief Justice H.L. Dattu and Justices Madan B. Lokur and A.K. Sikri, granted her and her three co-convicts in the case, N. Sasikala, V.N. Sudhakaran and J. Ilavarasi, bail on executing a bond with two solvent sureties by each of them to the satisfaction of the 36th Additional City Civil and Sessions Judge (Special Court for trial of criminal cases against Jayalalithaa and others) in Bangalore. Ironically, while suspending the sentences and granting bail to Jayalalithaa, the court did not spell out any infirmities in the Karnataka High Court’s reasoned judgment of October 7 declining similar relief to the convicts on the grounds that they were convicted in a corruption case.

The brief order issued by the Supreme Court Bench, however, mentioned that it heard Fali S. Nariman and K.T.S. Tulsi, senior counsel for Jayalalithaa and her co-convicts respectively, and the original complainant in the wealth case, Subramanian Swamy. Although the Bench did not go into the merits of the Special Leave to Appeal (Criminal) No.7900/2014, filed by Jayalalithaa and her co-convicts against the High Court’s judgment, it was clear that it was inclined to suspend their sentences and grant them bail on certain conditions.

The Bench broadly agreed with the High Court’s reasoning that the wealth case involved white-collar crime and therefore no leniency could be shown by the appellate court while considering the plea for a suspension of sentence in such cases.

While Nariman argued that the High Court failed to notice the distinction between the suspension of conviction and sentence and the suspension of sentence alone, the Bench did not find this to be a serious a flaw in the High Court judgment to be highlighted in its brief order.

Expressing mild disagreement with Nariman’s remark that the High Court’s application of the Supreme Court’s ruling that corruption involved violation of human rights in the Jayalalithaa case was wrong, the Chief Justice suggested that the court was against grant of bail and suspension of sentence as a norm. Seen in the context of the Chief Justice’s other observation that the Bench was concerned that the appellants-convicts would use the bail period to further delay the hearing of their appeals against their conviction in the High Court after having delayed it for 18 years in the trial stage, this makes it clear that the Supreme Court Bench did not want to be at odds with the High Court’s reasoning, which justified denial of bail in cases of corruption involving public servants.

In spite of this initial reluctance to set aside the High Court’s ruling, subsequently the Supreme Court finally granted the convicts bail perhaps for two reasons. First, their plea for a suspension of the sentence alone was not opposed by the prosecution, which was not represented before the Supreme Court. Only the complainant in the case, Subramanian Swamy, opposed it on the grounds that Jayalalithaa’s supporters had shown little respect for the judiciary and they had disrupted law and order in the State following her conviction and sentence on October 7. To this, the Chief Justice observed that it would not be correct to suggest that Jayalalithaa herself had asked them to indulge in violence.

Secondly, Subramanian Swamy admitted in an interview to a Tamil television channel that when Nariman sought suspension of the sentence on health grounds, he did not oppose it. Therefore, it is reasonable to suggest that the Supreme Court Bench felt that the High Court did not adequately consider suspension of the sentence and grant of bail on health grounds, especially when Jayalalithaa’s counsel pointed out that she was suffering from serious ailments and it was not contested by others.

At one stage, realising that the Bench was sympathetic to her appeal on health grounds, Nariman suggested that she could be confined to her home in Chennai. The Bench disagreed with this. The Chief Justice remarked that the court would either grant or deny her bail. “The nation believes in Article 21” (the right to life and liberty, guaranteed to all persons by the Constitution), the Chief Justice observed, hinting that the alternative course suggested by Nariman would be against the constitutional guarantee.

The Bench, however, impliedly agreed with Nariman’s contention that suspension of sentence and grant of bail to a convict was a necessary requirement to enable the convict to prepare his/her defence during appeal. As the Supreme Court was keen to ensure expeditious disposal of her appeal against her conviction and sentence by the High Court, the Bench perhaps felt that her continuance in the Karnataka jail would unwittingly lead to delay in hearing her appeal in the High Court, which would, in turn, prolong her imprisonment unfairly, in the event of the High Court ultimately finding her innocent. The Supreme Court’s final order implies that the High Court perhaps erred in dismissing this contention.

Nariman almost conceded that Jayalalithaa was perhaps to be blamed for the inordinate delay of 18 years in concluding the trial, but he sought to convince the Bench that further delay in disposing of her appeal was not in her interest, as it would affect her political future. As long as her conviction in the wealth case remains, she will remain disqualified from electoral politics and ineligible for chief ministership.

Although the possibility of the appellate courts granting a stay on her conviction is open, it is unlikely, as the Supreme Court has refused to show leniency to convicted public servants in several corruption cases. Therefore, in her own interest, she had no option but to cooperate with the speedy disposal of her appeal by the High Court, as it would give her an opportunity to seek the removal of her disqualification permanently. It appeared as though she was unlikely to seek a stay on her conviction at this stage merely to erase her disqualification from office temporarily.

Thus, Nariman readily agreed with the Supreme Court’s direction that she must prepare the paper books in connection with her voluminous appeal in the High Court and keep them ready in two months so that the Supreme Court can ask the High Court to hear the appeal within three months from that date.

Fixing the next date of hearing in the case for December 18, the court informed Nariman that it would not agree to an extension of the bail and a suspension of the sentence for even one day, if the paper books were not ready.

“Let the [AI]ADMK celebrate as if JJ acquitted. Truth is that she has an interim bail till Dec 18th when the SC reviews it. Plus good behaviour,” Subramanian Swamy posted on twitter on October 18. His view stems from the fact that the Supreme Court expressed serious concern over his apprehension that Jayalalithaa’s supporters would disrupt public tranquillity in Tamil Nadu, as happened when she was under detention in Karnataka earlier in the month. The Bench made it clear to Nariman that it would review its decision to grant her bail if Swamy made any fresh complaint about lawlessness by her supporters in the interim. To this, Nariman promised the court that Jayalalithaa would appeal to her partymen to maintain peace, and not attack the judiciary.

When Jayalalithaa, on the eve of her release from prison, appealed to her partymen to maintain peace and not criticise judges, Subramanian Swamy tweeted: “Why she did not do this earlier?”

The Supreme Court’s order actually gives Jayalalithaa a qualified respite. The court said it would not condone any delay in the appeal proceedings if it was attributed to the appellants, Jayalalithaa and her co-convicts.

The court has in fact placed a heavy responsibility on the appellants. Not only should they avoid seeking adjournments in the appeal proceedings before the High Court but also ensure that the case and its outcome do not disturb public order in Tamil Nadu.

(with inputs from Sagnik Dutta)