The legal basis

WHILE denying bail to Jayalalithaa and her co-convicts in the disproportionate wealth case on October 7, Justice A.V. Chandrashekara of the Karnataka High Court felt that he was bound by the clear pronouncements of the Supreme Court that corruption violated human rights and led to systematic economic crises and so ruled that hers was not a fit case for suspension of sentence. For this, he relied on the Supreme Court’s judgment in State of Maharashtra throughCBI, Anti-Corruption Branch, Mumbai vs Balakrishna Dattatrya Kumbhar (2012). The judge was aware that the Supreme Court’s decision was mainly in regard to the suspension of the order of conviction, whereas Jayalalithaa only sought a stay on her sentence. Yet, he felt that the Supreme Court’s decision in the Kumbhar case, that a person convicted of an offence punishable under Section 389 (1) of the Code of Criminal Procedure (CrPC) and the Prevention of Corruption Act (PCA) is deemed to be corrupt until he/she is exonerated by the Appellate Court or the Revisional Court, was applicable to Jayalalithaa’s case.

In the Kumbhar case, the respondent, a Superintendent of Central Excise, Mumbai, was convicted by the trial court for offences punishable under Section 13(2) read with 13(1)(e) of the PCA, maintaining that he possessed assets disproportionate to his disclosed source of income. The Bombay High Court had suspended his conviction. However, the Supreme Court held that corruption not only was a punishable offence but also undermined human rights by indirectly violating them and that systematic corruption was a human rights violation in itself as it led to systematic economic crimes.

“Thus, in the aforesaid backdrop, the High Court should not have passed the said order of suspension of sentence in a case involving corruption” (emphasis added), the Supreme Court observed in Paragraph 14 of its judgment. It is reasonable to suggest that the court did not make a clear distinction between suspending both conviction and sentence and suspending the sentence alone. However, in view of the facts of the Kumbhar case, which pertained to the suspension of conviction and sentence, the Supreme Court’s observation can only be considered as obiter , and inapplicable to Jayalalithaa’s case. Although the Supreme Court, while giving its brief order on October 17 staying the lower court’s award of sentence to Jayalalithaa, did not find it necessary to deal with the question whether the Kumbhar ruling was relevant to decide Jayalalithaa’s appeal, it accepted her counsel Fali S. Nariman’s plea, on the basis of its judgments in a few previous cases, that suspension of sentence alone, even in corruption cases, was justified to enable the convict-appellants to prepare their appeals and that serious ailments of the convicts could form “exceptional circumstances” necessitating grant of bail until the appeals were disposed of by the appellate courts.

V. Venkatesan