Karnataka would have served no useful purpose by initiating a sensitive legal move in a sensational case, where its locus standi might have been confined to appealing against the high court verdict and not extend to a demand for stay of its application. N Sathiya Moorthy explains.
Even as the ruling All India Anna Dravida Munnetra Kazhagam braces up for a chief ministerial change in native Tamil Nadu, questions are being asked about the reason(s), if any, behind the ‘rival’ Congress government in neighbouring Karnataka, not moving the Supreme Court in time, to delay if not deny Jayalalithaa another go at the gaddi at Chennai's Fort St George.
It may have been a very early day for most AIADMK legislators on Friday, as they were forced to troop into the party headquarters in Chennai to name their ‘Amma’ unanimously as their chief minister.
It was an irony that astrology should rule the fate of the political offspring of a party owing its early allegiance to the ‘rationalist’ Dravidian movement.
However, unlike DMK bete noire M Karunanidhi, who continues to be a 'closet believer' -- recall his 'yellow shawl' reportedly owed to astrological advice ahead of the successful 1996 polls -- and mentor, M G Ramachandran who deliberately kept his religious beliefs low-profile, Jayalalithaa has always been bold and forthcoming on both counts.
In an intervention in the state assembly as chief minister, many years ago, she said that her emergence as the upper caste Brahmin leader of the most popular wing of the 'Dravidian polity' reflected its 'evolution' -- or, 'parinama valarchchci', as Karunanidhi would often refer to, on other scores.
After being elected legislature party leader and the twice stand-in, O Pannerselvam, had submitted his resignation, Jayalalithaa met Governor K Rosaiah to stake her claim formally and also submit her list of Cabinet ministers.
Almost all ministers, as was to be expected, have been retained, just as they were asked to continue when Pannerselvam took over after the Bengaluru trial court had convicted and sentenced her to prison, in September last year, along with three co-accused. Jaya would not want to play spoil-sport just now, but could still act against some in the coming months.
Jayalalithaa's formal meeting with the governor, and her drive down from her Poes Garden residence, about six kilometres away, was already an occasion for the AIADMK cadres, who had arrived from across the state and outside, to celebrate on the streets of Chennai.
They were seeing their ‘Amma’ for the first time in about seven months, after Jayalalithaa went into a shell after the Supreme Court had granted bail -- almost instantly and without notice to the ‘prosecuting state’ of Karnataka.
A clearer Supreme Court position in the matter at the time, now it is felt, could have solved a key issue on the authority of the Tamil Nadu government to appoint G Bhavani Singh, Karnataka's special public prosecutor, to argue the appeal in the high court, which has since acquitted her.
A three-judge bench of the Supreme Court, having decided in the process that Karnataka, and not Tamil Nadu, is the 'prosecuting state' in the case with authority to appoint the SPP, the question arises as to why the former has not preferred an appeal in the Supreme Court against the acquittal verdict of Justice C R Kumaraswamy of the high court.
It is more so if one were to consider the well-publicised advice of SPP, B V Acharya, for Karnataka to prefer an appeal -- rather, file a special leave petition in the Supreme Court, for clearance to file a formal appeal.
According to news reports, Karnataka advocate-general and law department too had recommended an appeal, citing among other things, the glaring 'mathematical errors' in Justice Kumaraswamy’s verdict that favoured the appellants/convicts.
The Karnataka cabinet was scheduled to discuss the issue and take a decision on Thursday, only hours before the AIADMK began its chief minister change-over processes in Chennai.
The meeting was cancelled, and is reported to have been re-scheduled for Monday, when a decision is not unlikely to be taken.
In between, political party leaders, including DMK’s Karunanidhi, whose General Secteary K Anbazhagan has been acknowledged as an 'interested party' in the case by the Supreme Court, had asked Karnataka to prefer an appeal early on -- but to no avail.
The law provides 90 days from the day of the high court verdict of May 11, for Karnataka to move the Supreme Court.
With the result, there was no great hurry for the state to push an appeal or SLP through the Supreme Court, when the latter was in summer recess till June 30 and no real movement could be expected.
The alternative would have been for Karnataka to enjoin in its appeal, a specific plea for 'staying' Jayalalithaa’s return as chief minister, and a direction to Governor Rosaiah to not entertain any such request from the AIADMK legislature party, pending the final disposal of the case.
The law, as it stands, does not provide for Jayalalithaa’s return, now that she has been acquitted by the high court. Any reversal could be based only on the final disposal of appeal, if any, filed before the Supreme Court.
Karnataka would not have wanted to be caught napping on a serious legal and constitutional position.
Nor would have the state of Karnataka on the one hand and the ruling Congress Party leadership on the other, wanted to get entangled more than what is absolutely required and justified in a court case that’s not theirs in the first place.
Political decency also demanded that the Karnataka government did not play spoil-sport, or party-popper, for the AIADMK and Jayalalithaa, as it would have impacted on inter-state relations, already strained beyond any acceptable limit by the Cauvery water dispute, Kannada superstar, the late Rajkumar’s abduction by slain brigand Veerappan, and a host of other issues over the past decades.
Last but not least, some senior ministers like Rajasekhar and veteran Congress leaders like C M Ibrahim had publicly stated their reservations to their government in Karnataka about appealing the high court verdict. Some even argued there was no legal case, whatever their justification.
It is one thing for the Karnataka government to appeal the high court verdict, which would be legal in every sense of the term. It would be another for one state to ask the Supreme Court to issue a writ to the governor of another state not to swear in a chief minister elected by the legislators of the majority party in that state.
It would have triggered questions of constitutional propriety on the one hand, and constitutional issues on the other.
Should the Supreme Court decide to settle the constitutional question(s) before deciding to pass any orders on Karnataka's request for a stay of Jayalalithaa’s swearing-in, it would have been embarrassing and more.
There would still have been no guarantee that Karnataka would get a favourable order.
There would have also been another aspect to it all.
Dravida Munnetra Kazhagam's Anbazhagan and Bharatiya Janata Party's Subramanian Swamy are recognised as 'interested parties' in the case, with the Supreme Court authorisation to 'assist the prosecution'.
In this specific instance, when Karnataka was not seeking a stay of the high court verdict and thus the restoration of the trial court conviction -- and consequent disqualification for Jayalalithaa to return as chief minister early on -- the other two could still have moved the Supreme Court with the same plea.
The DMK in particular had done so even recently, over Karnataka's purported lack of interest in not challenging Tamil Nadu's appointment of Bhavani Singh as the SPP before Justice Kumaraswamy.
That being the case, Karnataka would have served no useful purpose by initiating a sensitive legal move in a sensational case, where its locus standi might have been confined to appealing against the high court verdict and not extend to a demand for stay of its application.
The question still remains. Will the Karnataka cabinet clear the legal recommendation for appealing the high court verdict, on Monday or a subsequent day -- and if so, immediately or after the Supreme Court reopens normally after the summer recess?
If the decision were for the state to go to the Supreme Court, then the additional question would remain if Anbazhagan or Swamy, as those 'assisting the prosecution', seek an order for Jayalalithaa to step down as chief minister, pending the final disposal of Karnataka’s appeal?
After all, in 2001, the Supreme Court had ordered Jayalalithaa to step down after being sworn in chief minister, that too by a retired Supreme Court Justice in Governor Fatima Beevi.
At the time, the Supreme Court held in its final order, that a convicted person who is barred from contesting a legislative seat could not occupy a position for which such membership is among the mandatory minimum qualifications.
The legal position and question now are not the same as the one agitated in 2001.
But then, in its 19-year long career of the 'wealth case' now and of the relatively lesser period of the 'TANSI land deal case', they had set new precedents and yardstick in the administration of criminal justice in the country!
N Sathiya Moorthy, veteran journalist and political analyst, is director, Observer Research Foundation, Chennai chapter.