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Curiouser and curiouser

N Sathiya Moorthy in Madras

With the Madras high court ordering the framing of charges in the TANSI case from May 10, all eyes are riveted on the Supreme Court, for its verdict in the special courts case, referred by AIADMK supremo and former Tamil Nadu Chief Minister Jayalalitha.

If the apex court validates the constitution of three special courts by the state government to try corruption cases against the erstwhile AIADMK rulers, the TANSI case involving Jayalalitha may be disposed of "in about a month's time", according to legal circles.

The TANSI case relates to Jaya Publications --- of which Jayalalitha was a partner along with live-in confidante Sasikala Natarajan --- purchasing property owned by a government-run corporate when she was still the chief minister. There are also additional charges of violation of rules, and under-valuation of property compared to the market-value in the locality, and thus denial of additional revenue accruing to the state government in the form of stamp duty.

"The case is based mostly on documentary evidence, and the statement of a few witnesses," says a legal source familiar with the subject. "In the ordinary course of events, the trial court should be able to dispose it of within a month or so." However, he refers to the innumerable interlocutory petitions filed by the accused, starting with Jayalalitha, on this and other cases pending before the three special courts, all requiring arguments by counsel and order by the courts.

Of greater significance than others is Jayalalitha's appeal against a division bench of the Madras High Court dismissing her earlier plea challenging the constitutional and legal validity of the special courts. The state government too filed another petition, when the centre notified the transfer of these cases to other courts, also inside Madras, claiming exclusive powers for the same under the Prevention of Corruption Act (PCA). Both petitions, as also another filed by a consumer action group in Madras, seemingly sympathising with the state government's position, were heard by a division bench of the Supreme Court, which has since reserved orders.

The special courts case has had a chequered career before the higher judiciary. For starters, Justice D Raju, who heard Jayalalitha's petition in the high court along with then Chief Justice M S Liberhan, was transferred on promotion, after the bench had reserved its orders. Another bench then heard the petition all over again, thus adding to the time-factor, and upheld the constitution of the special courts and the work allocated to them by the high court. Incidentally, even at the apex court, a three-judge bench heard Jayalalitha's appeal initially, but the case was later transferred to a two-judge bench comprising Justice S P Kurdurkar and Justice N T Nanavati, which has since reserved its orders.

As may be recalled, the centre notified the transfer of cases when the AIADMK threatened to withdraw support to the Vajpayee government. Suffice it to point out that the notification was issued just a couple of hours after Defence Minister George Fernandes, as convener of the BJP-led coalition's coordination committee, had purchased peace with the AIADMK after a meeting with Jayalalitha at her Poes Garden residence.

It was then a U-turn for the centre, which had argued before the high court --- when the United Front with DMK participation was in power --- that the state government alone had the powers to allocate work to the special courts. The centre now argued that the power rested exclusively with itself, though it was still vague about its powers to appoint special courts in the first place. This would have led to the basic issue of the powers of the appointing authority --- the state government, in this case --- to extract work from its employees, the judges of the special courts, that is.

Interestingly, however, the centre almost conceded the case to the state government when the supreme court hearing was at its peak, and the political temperature had heated up considerably. It was a coincidence, but was not missed by observers of the politico-legal developments. Arguing before the Supreme Court in the days following the AIADMK's withdrawal of support to the Vajpayee government, Attorney-General Soli Sorabjee submitted that the centre had not obtained the mandatory approval of the Madras High Court before notifying the transfer of cases earlier.

It was when the case was originally before the Madras High Court that Jayalalitha had argued that its mandatory sanction had not been obtained by the state government before the appointment of the special courts. She also found fault with the state government for allotting work to the special courts, a power vested with the centre under the PCA, and to be executed through the high court on its administrative side.

If the centre had then conceded the powers to the state government, the Madras High Court otherwise found no substance in Jayalalitha's contention. Chief Justice Liberhan, since transferred, and Justice E Padmanabhan clarified that the full court of the high court comprising all the judges had sat together, to clear the state government's petition for the appointment of special courts, and for the allotment of work among them. More importantly, the judgement clarified that the special courts thus constituted by the state government were not special courts under the PCA, but only additional courts with special judges for speedy disposal of cases under PCA.

The "re-defined" status of the "special courts" by itself should have denied the centre any power to notify transfer of cases in the first place. Says a legal source, "if the Centre amused itself by issuing the notification in the first place, it has since amused everyone by telling the apex court that its notification did not have the prior sanction of the Madras High Court, making it null and void under the law."

Interestingly, at the height of the political crisis last month, Jayalalitha's counsel even challenged the centre's notification, orally, before the supreme court, only to retract his steps the very next day. As may be recalled, legal sources here had not ruled out the possibility of a co-accused of Jayalalitha, if not Jayalalitha herself, challenging the notification on a later date. According to informed sources, Jayalalitha's decision to withdraw support to the Vajpayee government had more to do with her counsel discovering the centre playing a "double-game" on the notification issue, than anything else.

With the apex court reserving orders, legal circles here refer to the 'Antulay case', where the Supreme Court directed day-to-day hearing of the trial , precluding any court in the country from entertaining any more petitions until a verdict was pronounced. Though it does not directly relate to Jayalalitha herself, Mohammed Asif, a former AIADMK Minister, a co-accused in the 'TANSI case' had obtained high court orders for a Tamil translation of all documents, as he could not read or write English.

Says the source : "Maybe, there is some truth in Asif's argument. But it flies in the face of facts when someone like former Tamil Nadu Assembly Speaker Sedapatti R Muthiah seeks Tamil translation in cases pertaining to him." As he points out, Muthiah, as AIADMK parliamentary group leader, spoke "decent" English while participating in the Lok Sabha debate on the confidence motion moved by the Vajpayee government last month. As a short-lived minister in the Vajpayee government, he was also known to have read government files in English and given instructions and orders in the same language.

However, in the case of Sasikala Natarajan, who too has sought Tamil translations of court documents, her request is considered to be genuine.

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