Can Karnataka's decision to move SC against acquittal thwart Jaya's plans?

Karnataka’s SLP against Tamil Nadu Chief Minister Jayalalithaa’s acquittal has as much for the legal community across the country, as its electoral fallout may have for the political fraternity, says N Sathiya Moorthy.

The Karnataka Cabinet’s decision to move the Supreme Court against the acquittal of Tamil Nadu Chief Minister Jayalalithaa could impede her plans for a grant re-entry into the state assembly, only months ahead of the scheduled polls to elect all 234 members in the first half of next year -- or, so it seems.

“While transferring the trial of the case, the Supreme Court ruled that Karnataka was stepping into the shoes of Tamil Nadu, and is the sole prosecuting agency,” Karnataka Law Minister T B Jayachandra said, justifying the decision after the Cabinet meeting. He affirmed that court-appointed original special public prosecutor B V Acharya would prosecute the case in the Supreme Court along with another.

Under the existing law and practices, Karnataka would now have to move a special leave petition in the Supreme Court, seeking permission to move an appeal against Karnataka high court’s Justice C R Kumaraswamy, upturning the trial court verdict and acquitting Jaya and three other co-accused in the “disproportionate assets case”.

Jayachandra did not clarify if Karnataka would seek an interim order from the Supreme Court, staying the operation of the high court case, pending the disposal of the SLP first, and of the appeal, if the SC grants the state government permission to move one.

In the ordinary circumstances, appeals of the kind, even when cleared for hearing by the apex court, are not accompanied by any interim relief of the kind. However, given the special circumstances of the case, the SC may take a view, based on precedents.

Incidentally, the clearest of SC precedents in the matter too pertains to Jayalalithaa. After then TN Governor, Justice Fatima Beevi (retd) had sworn in Jaya as TN chief minister for a second time after 2001 assembly elections, the SC held it ab initio void.

After the SC order, Jaya’s AIADMK colleague, O Panneerselvam came to replace her as chief minister, until after the SC had cleared her in the original case pertaining to the public sector ‘TANSI land deal’.

The legal position, some legal experts say, is no different now, as Jaya has already been sworn in chief minister. However, there is a catch.

In 2001, Jaya remained ‘convicted’ and sentenced by the Madras high court when she was sworn in chief minister. When being sworn in this time, she had already been acquitted by the HC, and there was thus no legal bar on her assuming the high office.

There is a further twist to what is coming to be seen as an unending political/legal case. The AIADMK has since nominated CM Jaya to contest the by-election for the R K Nagar assembly constituency in Chennai city.

The seat fell vacant after ruling AIADMK member P Vetrivel resigned his assembly membership before Jaya could be sworn in chief minister.

With all 234 seats in the assembly already filled, a constitutional situation would have arisen if the AIADMK legislature party had elected a non-member in Jayalalithaa as the new chief minister nominee, and requested Governor K Rosaiah to swear her in, too.

Much of it remains on the Karnataka government filing an SLP, and also a request for an interim order against the HC verdict, before the vacation bench of the Supreme Court, and the latter too deciding to hear it as an ‘urgent matter’.

The Supreme Court’s vacation is due to end on June 30, the day on which the Election Commission has also scheduled the counting of votes in R K Nagar. Polling in the by-election has been scheduled for 27 June.

If none else, Jaya’s DMK adversary M Karunanidhi lost no time in noting the hurry with which the EC had notified the vacancy and also scheduled the by-poll.

As he had pointed out earlier, it took the EC, the state assembly secretariat and the state election officer over one and half months to declare Jaya’s original Srirangam seat ‘vacant’ after Bengaluru trial judge Michael D’Cunha’s conviction order had rendered her automatically disqualified.

Should Karnataka move the SC and also seek an interim stay of the HC order, will any proceedings before a vacation bench impact on the R K Nagar by-poll or the results?

Under the law, courts cannot interfere with poll processes until the results are announced once the EC had notified the dates. This was aimed at ensuring that a multiplicity of court proceedings does not end up thwarting the democratic process as a whole.

However, this one may be a different case, if the SC chose to view it that way. As may be pointed out, the existing law on the subject also pertains to Jayalalithaa and the officer of the governor, and related to the ‘TANSI land deal case’.

However, it needs to be noted that from the viewpoint of the constitutional office of the governor, Rosaiah has had limited options in the situation existing on the day he swore in Jaya as chief minister, as she was a ‘free person’ capable of being sworn into office, on the strength of the HC acquittal.

Indications are that the Jaya defence would once again agitate ‘political vendetta’ as the sole cause for Karnataka preferring an SLP/appeal before the SC, citing the ‘Cauvery issue’ as the reason. Or, at least that has been the line publicly taken by AIADMK spokespersons, since.

However, the SC had negatived the argument long ago, when it transferred the trial of the case from TN to Karnataka and named the latter as the ‘sole prosecuting agency’.

Jaya’s defence, both political and legal, has also been to dub DMK’s status as an ‘interested party’ that can ‘assist the prosecution’ in the case through written arguments.

Throughout the career of the case, the Supreme Court has repeatedly held that DMK’s K Anbazhagan’s move was not ‘political vendetta’. However, Justice Kumaraswamy at the Karnataka HC held otherwise.

This might thus give DMK’s Anbazhagan greater locus standi than otherwise to join in the SLP/appeal than possibly otherwise.  The question if Anbazhagan could have moved the SC on the substantive issues in the case had Karnataka decided otherwise may have been rendered academic in the light of minister Jayachandra’s announcement.

AIADMK spokespersons have also been talking about the case reverting to the TN at the end of the HC order. They claim that the ‘mathematical error’ in Justice Kumaraswamy’s judgment being a technical issue, he alone, under the law, was authorised to correct it. According to them, no other case could lay against the HC order, for anyone to move a valid SLP.

Karnataka has naturally maintained silence on the question thus far and is unlikely to make any public statement on the subject before moving the SLP in the SC.

However, DMK spokespersons have gone beyond the ‘mathematical error’, to argue against Justice Kumaraswamy’s findings on ‘political vendetta’ and also his ‘ruling’ on an aspect of the HC verdict, in which a ‘Jaya vs CBI’ petition is still pending before the higher judicial authority in the SC.

With the result, Karnataka’s SLP has as much for the legal community across the country, as its electoral fallout may have for the political fraternity.

N Sathiya Moorthy, veteran journalist and political analyst, is Director, Observer Research Foundation, Chennai Chapter.