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By J. Venkatesan
A Bench, comprising Justice S. Rajendra Babu and Justice P. Venkatarama Reddy, reserved the judgment on September 26, 2002, on special leave petitions filed by the DMK legal wing secretary, R.S. Bharathi, and the Janata Party president, Subramanian Swamy, challenging the December 4, 2001 judgment of the Madras High Court acquitting Ms. Jayalalithaa of all charges. The cases relate to the Tamil Nadu Small Industries Corporation (TANSI) Foundry and its land, which was bought by Jaya Publications, and the TANSI Enamel Wire unit plus the land purchased by Sasi Enterprises — both in 1992. Ms. Jayalalithaa and her close aide, Sasikalaa, were the sole partners of these two firms. The former Tamil Nadu Rural Industries Minister, Mohammed Asif, the then TANSI Chairman and Managing Director, T.R. Srinivasan, a stamp duty official, S. Nagarajan, and the then Additional Secretary to the then Chief Minister, R. Karpoorasundara Pandian, were the other accused. On October 9, 2000, a Special Court in Chennai sentenced Ms. Jayalalithaa and five others to three years and two years rigorous imprisonment in the two cases (Mohd. Asif was acquitted in the second case). The Special Court had found Ms. Jayalalithaa guilty of criminal conspiracy under Section 120-B of the Indian Penal Code, and Section 409, dealing with criminal breach of trust by a "public servant", which Ms. Jayalalithaa was as Chief Minister. However, the High Court acquitted her. The bone of contention in these appeals before the apex court was that under Sec. 169 of the IPC, as a public servant the Tamil Nadu Chief Minister, Jayalalithaa was forbidden from purchasing government property. It was argued that there was a conspiracy in the purchase of TANSI property by Ms. Jayalalithaa. And by purchasing the TANSI properties by abusing her position she had violated the "Code of Conduct" for Ministers. Further, the Chief Minister, having fiduciary relationship as a trustee, had an obligation to protect the government properties and she could not defy the fiduciary responsibility by contending that the code would not apply to her. These arguments were countered by Ms. Jayalalithaa by contending that TANSI could not be called an arm of the government merely because the directors were appointed by the government. Referring to the Code of Conduct, viz., that no Minister should purchase government property, she asserted that the code had no statutory sanction and hence was not enforceable. She also maintained that there was no "dishonesty", "illegality" or "corrupt means" in the purchase of TANSI properties by her. The whole exercise was done through open tender and market value was paid for the property. There was no cartel and no pressure was brought about in the whole exercise. Therefore it could not be said that she had obtained any pecuniary advantage. Also, there was no wrongful gain to her or wrongful loss caused to the government undertaking.
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