Even as a jubilant All India Anna Dravida Munnetra Kazhagam chief Jayalalithaa and her aides discuss the possibilities of her early return to power as the chief minister of Tamil Nadu, her critics and political opponents are already kneading the Madras high court verdict exonerating her in all three cases pending before it, for a possible cause of appeal. Janata Party president Subramanian Swamy as the original complainant, has already declared his decision to challenge the high court verdicts in the two TANSI land deal cases while Dravida Munnetra Kazhagam president and former chief minister M Karunanidhi has hinted at such a course in all three cases, including the Pleasant Stay Hotel case. Legal experts say that if anyone -- except the AIADMK state government -- wants to challenge the high court order, they will have to first seek clearance from the Supreme Court clearance for the purpose, but they also refer to the appointment of former Advocate-General K A Venkatapathy as the Special Public Prosecutor in these case, to buttress their argument. "The facts and circumstances applicable to his appointment, that the law of natural justice would not allow for the prosecution and defence be the same, would apply even at the appeals stage," they argue, referring to the pending PIL review petition by DMK legal wing convenor R S Bharathi, at whose behest a Special Public Prosecutor was appointed in the first place. "That being a possibility, Jayalalitha may after all decide to wait until becoming an MLA, for her to become Chief Minister, as some of the sting would be removed, if she were not in power, if appeal-powers were not sought for the Special Public Prosecutor, who himself was an invention of the higher judiciary, given the facts and circumstances of the cases, rather than the creation of any law in force." For starters, some jurists say, it was high time the Supreme Court intervened in the matter of conferring - or, not conferring -- legal status to the 'moral code of conduct' applicable to 'public servants'. Referring to the High Court observation that the 'model code of conduct' prohibiting 'public servants' from purchasing Government property had no legal binding, they point out that "from now on, you can have tahsildars joining arrack shop auctions, district collectors taking up construction contracts from State Governments, and so on. Every action violative of natural justice and morals have thus far been taken mostly on the model code, which is left as vague as the laws of natural justice, if only to give them wider application and narrower exemptions." That way, the High Court verdict, it is said, may have erred on the question of 'public interest' in the 'Pleasant Stay Hotel case'. Acquitting Jayalalitha, then Minister T M Selvaganapathy - his is now an AIADMK member of the Lok Sabha - and others in the case, Justice N Dinakar fixed the 'total absence of public interest' as a criterion for fixing criminal intent, or 'mens rea'. In this context, critics refer to the earlier Madras High Court judgment on a PIL filed in against the undue exemption granted to the private hotelier from building rules, where 'public interest' was found to be wholly absent. This view was later upheld by the Supreme Court itself on the very same matter. "That being the case, the present High Court verdict may have gone against the Supreme Court judgment in the earlier case," according to sources. As they point out, "Unlike 'criminality' or 'criminal intent' which may differ between civil and criminal jurisprudence, there is no such distinction in matters like 'public interest'. With the High Court now drawing such a distinction, that too on the very same matter, might need a further clarification from the Supreme Court, on the position of law." The High Court also seems to have presumed the innocence of the accused in matters of conspiracy, which may be true of ordinary criminal cases. The Prevention of Corruption Act, conversely, presumes the 'possible guilt' of the accused, as a corrupt 'public servant' is not expected to retain witnesses and evidence around him beforehand. Section 13 of the PCA thus says that an offence under the Act would be deemed to have been committed either by a 'public servant' or 'anyone close to a public servant'. Despite such a definition, the High Court has held that a 'conspiracy' could not be pre-supposed just because both Jayalalitha and her live-in confidante Sasikala Natarajan were living in the same house. "Such an explanation to the law could be self-defeating, and again needs to be put in the proper perspective by the Supreme Court, whatever be its application to the facts and circumstances of the cases relating to Jayalalitha." That way, they also take exception to the sweeping observation of the High Court in the 'Pleasant Stay Hotel case'. Said Justice Dinakar, who accepted the defence argument on the matter: "Men are fallible, and therefore if an order is contrary to rules, and hence incorrect, no prosecution, can be launched." Jurists say such a sweeping acceptance of a controversial argument could an invitation for 'public servants' to adopt 'corrupt practices', and could re-write the law on corruption, as evolved by the Supreme Court to be as wider in application, and as narrower in exemptions. In this context, some lawyers also point out that the appellate judiciary, particularly the High Court upwards, does not generally make sweeping statements on the facts of the evidence deduced, other than evaluating their legal quality. "By describing the quality of evidence submitted by (senior IAS officer) P C Cyriac as 'too artificial to be accepted', and his testament of having misplaced the Xerox copy of his dissenting note in the hotel case' as worthy of suspecting that such a note may not have been prepared at all, the High Court Judge may have 'misdirected himself on a question of fact', as he had observed with reference to the trial judge in the case." The same view, it is said, also holds good regarding Justice Dinakar's ruling that "I am unable to hold that Mr Selvaganapathy (as then Minister) passed the order with corrupt motive". Likewise, they point out, in the two TANSI land deal cases, no comparison should have been made between the prices paid by Jayalaliltha's firms and the Sugar Federation, as records would show that the Federation was to have given TANSI vast built-up area on the land sold to it. Conversely, the price earlier paid by Jayalalitha's said firms to private property in the same location should have been taken into consideration, "and it was this that was considered as the 'market value' by the trial court, with no 'guess work' involved, as mentioned by the High Court." In this context, some lawyers also question the wisdom of the High Court holding that TANSI was not 'Government' for the purpose of anti-corruption law. Extending the court's argument on 'criminal intent' in the 'hotel case' in the reverse, they point out, how the State Cabinet had met to clear the TANSI proposal for selling the said land. "Whatever be the legal position, that should have made it clear at least for Jayalalitha who presided over the meeting as Chief Minister, that it was Government land, after all." Adds a street-side wag for effect: "If TANSI land was not government land, and if TANSI is not a Government corporation, why is it that they claim damages from villagers and other groups for damaging transport buses during agitations, saying that they are all Government property?" ---- ends..