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May 14, 1999


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Supreme Court verdict setback to Jaya

In a major setback to AIADMK chief J Jayalalitha, the Supreme Court today upheld a notification by the Tamil Nadu government transferring all corruption cases against her and others to three special courts for speedy trial while quashing a central notification reallocating them to sessions courts.

A division bench, comprising Justices G T Nanavati and S P Kurdukar thus dismissed all the appeals filed by the former chief minister, some of her erstwhile cabinet colleagues and some bureaucrats challenging a Madras high court judgment upholding the impugned notification dated April 30, 1997.

By quashing the central notification issued on February 5 under section 4(2) of the Prevention of Corruption Act, the apex court cleared hurdles for the speedy trial of 46 corruption cases against Jayalalitha and others by the three special courts appointed by the Tamil Nadu government under the act.

The court, however, allowed an appeal filed by a consumer activist organisation, 'Voice', challenging a Madras high court order dismissing its public interest petition challenging the central notification.

The court, by two separate judgments, dismissed writ petitions of the appellants holding that section 3 of the act insofar as it empowers the state government to appoint special judges ''for such case or group of cases'' is constitutionally valid and not violative of Articles 14 and 21 of the Indian Constitution. It also held that the establishment of three additional sessions courts at Madras and appointment of judges of those courts as special judges by the notification dated April 30, 1997, was also valid and that in no way contravenes Articles 14 and 21 of the Constitution nor did their appointment stand vitiated by mala fides either factual or legal.

Justice Nanavati, who wrote the judgment for the bench, said that the discretion conferred upon the state government to appoint special judges was not absolute. ''It is in the nature of statutory obligation or duty. It is the requirement which would necessitate exercise of power by the government.''

The judge pointed out that the words 'as may be necessary' in their opinion was the guideline according to which the government had to exercise its discretion to achieve the objective of speedy trial.

''The legislature has enacted the Prevention of Corruption Act and provided for speedy trial of offences punishable under the act in public interest as it had become aware of rampant corruption among the public servants. While replacing the 1947 act by the present act, the legislature wanted to make the provisions of the act more effective and also to widen the scope of the act by giving a wider definition to the term 'public servant'," the judge observed.

The reason for this, the judge said, was obvious. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but is also harmful to the national economy and national interest, as the persons occupying high posts in government, but misusing their power, can cause considerable damage to the national economy, national interest and the image of the country, the judge added.

Justice Nanavati said it is in the context of public interest that we have to construe the meaning of the word 'necessary' appearing in section 3 of the act. Considering the object and the scheme of the act and the context in which it is used would mean requirement in public interest and cannot be said to be so vague as not to provide a good guideline. Thus the exercise of discretion by the government under section 3 has to be guided by the element of requirement in public interest.

Again, conferment of such wide discretion by section 3, the judge opined, is not likely to lead to discrimination either in the matter of the court by which the accused is to be tried or the procedure to be followed during discharge.

''Whether he (an accused) is tried by a special judge for the area or a special judge appointed for a case or group of cases, he will be tried by a judge of the same class and by the same procedure. The accused will be tried by a special judge who is also a sessions judge appointed under the code of criminal procedure, as in the case of an accused tried by the area special judge. Thus, the accused is not exposed to a different treatment as regards the court by which he is to be tried or the procedure to be followed in the case'', the judge held while turning down the plea of discrimination raised by Jayalalitha.

For these reasons, the judges were of the view that the discretion conferred by section 3 upon the government was not unfettered or unguided and therefore challenge to the validity of section 3(1) of the act must fail.

Agreeing with the reasoning given by the high court for rejecting all the submissions made by the counsel for the appellants, Justice Nanavati did not think it necessary to deal with them any further.

''We may only state that not factual averments were made by the appellants in the writ petitions to make out a valid case of malice in fact. We may also state that the material on record justified the exercise of power by the government and therefore the impugned notification cannot be said to be either discriminatory or violative of Article 14 of the Constitution,'' the judges observed.

The judges noted that initially the proposal for setting up of three special courts was examined by a committee of judges appointed by the high court and thereafter the full court had approved the same. "Even the posting of session judges as special judges for those three additional courts was approved by the full court. Only the allocation or distribution of cases among the three special judges was done by then acting chief justice. That being a purely administrative act could have been performed by the chief justice alone and even if it is considered as an irregularity it is not of such a magnitude as would require us to invalidate that part of the notification whereby cases have been allocated to the three special judges."

Coming to the central notification, the court said that the power conferred upon the central government under section 4(2) was also to be exercised if that became necessary. ''The same guideline as contained in section 3(1) must apply while exercising power under section 4(2) also. The trial of cases specified in the impugned state notification was going on since May 1977 and no necessity had arisen till February 1999 to exercise the power of allocation in respect of those cases,'' the court added.

The court said that the central government had not placed any material before us to show why it became necessary for it after such a long time to make reallocation of cases to be tried by special judges in the city of Madras.

The court noted that the Centre had only argued that it had powers to allocate the cases. The allocation was made in consultation with the high court. Really, the allocation amongst the three special judges could be said to have been made by the high court though the formal notification in that behalf was issued by the state government.

''The central government issued the impugned notification while the special leave petitions challenging the judgment of the high court were pending in this court. The central government has failed to establish the necessity of issuing the impugned notification dated February 5 this year and the same is held to be not in accordance with section 4(2) of the act. It was uncalled for at that stage and therefore it has to be regarded as bad in law,'' the judges observed in their 34-page judgment.


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