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Assets case: SC may yet create problems for Jaya

By N Sathiya Moorthy
June 23, 2015 14:27 IST
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J JayalalithaaA case that J Jayalalitha ‘does not want’ is back and in the Supreme Court. N Sathiya Moorthy reports on the possible repercussions of the disproportionate assets case on Tamil Nadu politics.

Addressing her maiden campaign rally for the R K Nagar assembly by-poll in the Tamil Nadu capital of Chennai, Chief Minister J Jayalalithaa thundered thus from inside her air-conditioned vehicle: “You did not want this by-election…When there is only a year left for the assembly elections, the by-election has been necessitated due to a political conspiracy…I was not able to continue as the chief minister because of the (disproportionate assets) case. Now that the by-election has been announced, I have entered the fray as a candidate…”

Less than 24 hours later came the anticipated news of the neighbouring Karnataka government moving a Special Leave Petition in the Supreme Court against the verdict of Justice C R Kumaraswamy of the Karnataka high court acquitting Jayalalithaa and three others in the same case that she said had caused the R K Nagar by-poll in the first place.

The question remains if Jayalalithaa would have been able to return as chief minister when she did subsequent to the Justice Kumaraswamy verdict, without a vacancy being created for her to re-enter the state assembly through a by-election.

Indian law does not preclude non-legislators from becoming a minister, including chief minister. However, no person who has not been elected legislator could be made a minister, including chief minister, if there was no vacancy for him/her to contest and win a seat to the state legislature on the day the governor invites him/her to become a minister/chief minister.

Incidentally in reference to the ‘disproportionate assets case’ against Jayalalithaa, the Supreme Court of India has repeatedly shot down the ‘political conspiracy’ theory being parroted constantly by AIADMK leaders and platform-speakers. 

What would then be the court’s reaction should one were to file a contempt of court plea, is something that the AIADMK leaders and their legal team may have to ponder in good time.

Karnataka’s SLP has come only days before the Supreme Court’s annual summer recess ends on June 30. The R K Nagar by-poll is scheduled on June 27 and the result on June 30.

Should the regular court take up the Karnataka plea at the end of the recess, then the by-poll results by all conceivable accounts would be a fait accompli, and Jaya would be a legislator again by then.

It is unclear as yet if the vacation bench of the court would take up the plea, or pass any interim orders, as sought by Karnataka. In the normal course, and under the Constitution, courts do not interfere with ‘election process’, once the Election Commission has announced the poll schedule, until the results are announced.

In context, there may not be any immediate question of the courts directing the EC to countermand polling in R K Nagar. Yet, given the peculiarities involved, questions may still remain if DMK General Secretary K Anbazhagan or BJP leader Subramanian Swamy were to move the SC, seeking that they too should be allowed to implead in the case, as in the earlier stages. Yet, those are long processes, which could not be completed before the by-poll schedule passed.

In its SLP, Karnataka has sought an interim stay of the Kumaraswamy verdict, citing his ‘arithmetical error’ among other grounds for reversing his entire findings and consequent order.

As may be recalled, Justice Kumaraswamy, citing possibly a wrong judicial precedent from Andhra Pradesh, which was also relatively dated, to argue that the ‘valuation error’ by the Jayalalithaa defence was less than the 10 per cent ‘error’, which was considered permissible.

Within minutes of Justice Kumaraswamy’s pronouncement, B V Acharya, the Special Public Prosecutor in the case, appointed by the Karnataka Government on the specific directions of the Supreme Court, pointed out that there was a minor mathematical error in the calculations, the elimination of which would put the error in the range of 80 plus per cent.

The Acharya argument on this and other legal points got support from Kartnataka’s Advocate-General, Ravivarma Kumar, and both repeatedly went to town to hammer out the points -- and to possibly send out a public signal to the state government in the matter. The state law department is also reported to have shared their views on all legal issues pertaining to the SLP.

A few questions arise out of all this: Post-recess, will the SC pass any interim orders, as sought by Karnataka, reversing the high court verdict, as the very foundation of Jaya’s acquittal had been proved wrong, internally in the Kumaraswamy judgment?

Two, how fast will the SC want to dispose of the Karnataka plea, as it may also hinge on the possible outcome of assembly polls in Tamil Nadu, due by May 2016? In the normal course, there is said to be a three to four-year backlog of SLPs before the Supreme Court.

However, considering that the first bench, chaired by Chief Justice H L Dattu, found the Jaya appeal against the earlier Karnataka HC denial of bail important enough to dispose of (incidentally in her favour) even without having to serve notice on the ‘prosecution’ as has been the wont under the Criminal Procedure Code and all the precedents before it, the SC may now decide to evaluate the ‘urgency’ of the matter at every stage, before ordering ‘notice’, adjournments, etc.

N Sathiya Moorthy, veteran journalist and political analyst, is Director, Observer Research Foundation, Chennai Chapter.

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