The Hindu : CURTAINS ON A LEGAL SAGA

Online edition of India's National Newspaper
Wednesday, Nov 26, 2003

Opinion

Opinion - Editorials

CURTAINS ON A LEGAL SAGA

THE SUPREME COURT'S acquittal of the Tamil Nadu Chief Minister, J Jayalalithaa, and four others on all the criminal charges in the two TANSI cases (in which judgment was reserved on September 26, 2002) brings the curtain down on a seven-year legal saga that unfolded, as the judgment by the two-judge bench notes at the outset, "against currents and cross currents of political vicissitudes." Independent of the jubilation and disappointment caused to the two opposing political camps, the verdict ends an agonising 14-month spell of uncertainty for the State and brings relief in that larger sense. The 52-page reasoned judgment by the highest court in the land, which must be read factually as a mixed verdict — comprehensive legal acquittal in the main, combining with emphatic moral disapproval of the 1991 property transactions — must be accepted gracefully by all concerned as the final expert word on the facts of a knotty case and the legal, governance and moral issues involved. Critiquing the judgment, and indeed the law as it stands in relation to alleged corruption, is a legitimate activity that is best left to law scholars and jurists even if it will be naïve to expect zero political fallout from the conclusion of the case.

The charges in the two criminal cases, which involve the purchase of properties from the Tamil Nadu Small Industries Corporation Limited by two firms in which Ms. Jayalalithaa and Sasikalaa were partners, soon after the former became Chief Minister for the first time revolve round two broad questions. The first question is whether the lands (and superstructure) belonging to the corporation were undervalued — that is, if there was wrongful gain or loss in the transactions and ipso facto whether there was a criminal conspiracy to give effect to them. The second critical question is whether the transactions attract a provision (Section 169) in the Indian Penal Code that deals with public servants unlawfully buying or bidding for "certain property".

The special court, which tried the case, found that Section 169 was not attracted in this case. However, it held that TANSI sold the land and buildings it owned at prices below the prevailing market rates to Jaya Publications and Sasi Enterprises. The trial court held, further, that there was a criminal conspiracy that resulted in wrongful gain and loss on account of the transactions. In consequence, Ms. Jayalalithaa was sentenced to three years rigorous imprisonment in the TANSI Foundry case and two years RI in the TANSI Enamelled Wires case. On appeal, the Madras High Court acquitted Ms. Jayalalithaa on all the charges. It held that the special court had erred by construing the `market value' of a property and the `guideline value' of a property as one and the same thing. The High Court ruled that there was no evidence to show that the market value was what the prosecution claimed it was; that there was any conspiracy to see that the TANSI properties, which were sold through an open tender to the highest bidder, were undersold in relation to the guideline or market value; and that there was any pecuniary advantage to Jaya Publications that would attract the relevant sections of the Prevention of Corruption Act. The Supreme Court has endorsed these findings.

As for Section 169, the arguable issue is as follows. A plain reading reveals that in order to attract its provisions, there must be some other statute that spells out what is prohibited. Section 169 states that public servants who are legally bound not to purchase certain property shall be punished if they do so. As the apex court points out, what is "legally bound not to" is not defined. What property is prohibited from being purchased is not spelt out either. It is here that the prosecution invoked, resourcefully, a Code of Conduct for Ministers brought into force by a 1968 Government Order and revised from time to time. The Code requires a Minister to "refrain from buying from, or selling to, the Government any immovable property" except in the case of compulsory acquisition. The prosecution contended that this rule, issued in exercise of the executive power of the State under the Constitution, is not "a rule of moral instruction or guidance" but "a binding rule of action." The Supreme Court rejects this critical argument. Observing that the offence under Section 169 of the IPC is incomplete without the assistance of a specific enactment imposing the legal prohibition required, the Supreme Court finds that the Code of Conduct does not have statutory force, is not enforceable in a court of law, and cannot be construed as imposing a legal prohibition against the purchase of Government property "so as to give rise to a criminal offence under Section 169 IPC." Given this finding, the Court holds that there is no need to consider further questions such as the applicability of the prohibition to the property of a Government undertaking.

After holding that none of the criminal charges against Ms. Jayalalithaa hold water, the apex court judgment shifts to another plane — of moral analysis and judgment. Here the verdict is emphatically against the Tamil Nadu Chief Minister. The first criticism relates to a simple point of fact: Ms. Jayalalithaa took the stand that she did not sign some of the documents leading to the sale of the TANSI properties but the Court's finding is "there is overwhelming evidence on record to indicate" that she signed these documents. The judgment employs strong language to convey its moral disapproval of the property transactions. Pointing out that even small-time officers cannot lawfully buy properties over which they have control, it observes that a "conflict of interest" is involved when a Government headed by Ms. Jayalalithaa gives the necessary permission for the sale of the TANSI properties. Further, the judgment comments, when "officers and others" know that the Chief Minister is interested in buying some properties, "the bureaucracy will be over-enthusiastic to see that the sale goes through smoothly and at a price desired by such Chief Minister." Concrete evidence needed for conviction in a criminal case might be hard to get but "it is plain that such conduct is opposed to the spirit of the Code of Conduct if not its letter." Raising the rhetorical questions whether "there can be one law for small officials of the Government and another one for the Chief Minister" and whether the Code of Conduct is meant only as an ornamental relic for a museum, the Supreme Court records that "these aspects worry our conscience." The judgment concludes on a philosophical note by dwelling on the distinction between what the criminal law minimally prescribes and the "high probity" required morally from those who hold high office. While the criminal law is meant "to deal with criminals ordinarily," a Code of Conduct is intended to be "observed as [a] gentlemen's agreement." Persons in public life must not take cover behind "technical pleas as arise in criminal cases." "Good ethical behaviour" by those in power is "the hallmark" of good governance. As for Chief Minister Jayalalithaa, the Supreme Court's last word is this stern moral injunction: "Irrespective of the fact whether we reach the conclusion that A-1 is guilty of the offences with which she is charged or not, she must atone for the same by answering her conscience in the light of what we have stated." This atonement she is asked to perform by "returning the property to TANSI unconditionally" (which she did many months ago) and also reflecting over "whether she had done the right thing in breaching the spirit of the Code of Conduct and giving rise to suspicion that rules and procedures were bent to acquire the public property for personal benefit... " An unusual end to an extraordinary legal saga.

Printer friendly page
Send this article to Friends by E-Mail

Opinion

News Update

Stories in this Section

CURTAINS ON A LEGAL SAGA

Sustaining the Centre's myth

U.S. faces unease in East Asia