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N Sathiya Moorthy in Chennai
With the Supreme Court reserving judgment in the two Tamil Nadu Small Industries Corporation (Tansi) cases against Tamil Nadu Chief Minister J Jayalalithaa, all eyes in Tamil Nadu are riveted towards distant Delhi.
The court verdict could decide whether Jayalalithaa will continue to hold the office of the chief minister.
As is the practice with criminal appeals a two-judge division bench comprising Justice S Rajendra Babu and Justice P Venkatarama Reddi has heard the case.
A 'split verdict' could mean that the case would either go to a third judge, or a larger bench. Should the judges feel that the issues raised have wider ramifications and import, they may feel the necessity for referring it to a Constitution bench.
Some of the legal issues raised in the case are these:
As he argued in the lower court, even the trial court judge P Anbazhagan had based his conviction of sentencing of Jayalalithaa, based on the 'conspiracy theory' under Section 120 of the Indian Penal Code coupled with the relevant sections of the Prevention of Corruption Act.
In doing so, he had concluded that Tansi was 'government' within the meaning of law.
When Venugopal argued that Tansi could not be construed as 'government' just because the state government had the right to appoint the directors and control its other functions indirectly, the bench observed that it was not their intention to 'pierce the veil'.
Appearing for appellant R S Bharati, senior counsel T R Andhiyurjina referred to the Supreme Court verdict in the 'Mysore Sugar Mills case', where he contended the issue had been settled.
It was thus, the bench observed, that 'ordinary laws are for ordinary people, and the code of conduct is for those in power'.
As jurists point out, the lawmakers in their wisdom did not want to compromise the prestige attaching to high offices like those of the prime minister and chief minister by providing for their prosecution in criminal matters while in office. "They are expected to maintain a high sense of propriety and decorum, and the lawmakers left it at that," one expert said.
A new turn was introduced in the Supreme Court when Jayalalitha's counsel submitted that she was ready to relinquish the two Tansi properties that had been purchased 'at a price higher than the market-price' without accepting any payment.
He attributed the decision to mental agony caused by the prolonged litigation, and submitted that she could have done so earlier but for the pending legal process. Soon, both Jayalalithaa and Sasikala, one of the co-accused in the case, filed written submissions in this regard, the latter in the Madras high court, where a civil suit on the 'Tansi sale', filed in 1993, came up for hearing.
The Supreme Court bench observed that the 'matter is irrelevant' in the present context.
Incidentally, the question also arises if Jayalalithaa and Sasikala, whose legal title to the very properties, has been under question, could relinquish a 'questionable right'. Also the price that was paid -- or, not paid -- and the methods applied for the sale by Tansi were the basis for the 'conspiracy theory', on which Jayalalithaa was convicted by the trial court.
Winding up his reply-arguments, Andhiyurjina submitted that Jayalalithaa, who had denied her 'signature' in the sale-and-purchase deed of the Tansi properties, could not now offer to relinquish it. He also argued that as chief minister Jayalalithaa had a 'fiduciary relationship' as a trustee of government property, not to purchase the Tansi property, which was also prohibited by Section 169 IPC.
The two Tansi cases flow from the purchase of its property by Jaya Publications and Sasi Enterprises, of which Jayalalitha was a partner, when she was in power during 1991-96. The trial court's conviction and sentence for three years barred her from contesting last year's assembly polls in the state.
Later, the Supreme Court held her appointment as chief minister without the basic qualification for contesting the assembly polls as 'ab initio' void.
If the Madras high court's acquittal had cleared the deck for Jayalalithaa to contest an assembly by-election and return as chief minister, in the place of O Pannerselvam, who had successfully stood in for her, now the Supreme Court verdict holds the key to her political future.
Along with Jayalalithaa and Sasikala, three IAS officers were also sentenced by the trial court, based on the conspiracy theory, and acquitted by the high court. Another co-accused and former Minister Mohammed Asif, who had to be rolled in at the trial-stage in an ambulance at times, is since dead.
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