Why the Supreme Court gave Jayalalithaa bail
Jayalalithaa
was convicted on September 27, 2014, and given a four-year jail term.
The Supreme Court released her on bail on October 17, 2014.
The
bail had been denied by the Karnataka High Court on the grounds that
the conditions for granting bail to a pre-trial accused were different
from those applicable to a convict.
During
the trial, she enjoyed bail for 18 years. I was responsible for her
bail for a couple of years, which gave her political oxygen when she was
in Opposition.
Post-conviction found her released in 21 days. This was a record for such, indeed most, cases.
Lalu’s
bail in the Fodder scam took almost a year. Chautala got bail on
medical grounds in two months. YSR’s Jaganmohan Reddy, in a similar
disproportionate assets case, spent a year in jail, Satyam’s chairman
and co- accused were in jail for almost three years, the alleged 2G
scamsters (Raja and Kanimozhi) were in jail for a year.
With
Jayalalithaa, Sasikala, Illavarasai and Sudhakaran were also released
in this record time of 21 days. Jayalalithaa’s bail appeal was
accentuated by reference to her age, diabetes, hypertension, cellulites
and other irritants not applicable to others who got the benefit.
Tumult
While
the populist tumult that followed may have been partly politically
staged, how would you explain 17 people killing themselves or dying of
cardiac arrest for her? An 18-year-old set herself ablaze, a 21-year-old
hung herself, and two people, aged 40 and 70, consumed poison.
It wasn’t just the common man. A police officer too tried tried to immolate himself.
What
is the relationship between a corrupt political leadership, their
die-heard political supporters, and those prepared to die for them? Do
they really care? For the emotional die-hards, the rule of law does not
matter.
Faced with public opinion and media glare, judges seem to make a ‘show case’ of not granting bail to corrupt politicians with alacrity.
With
this, the judiciary salvages its own conscience to ‘show-case’ that the
high and mighty are not favourably treated. This is the reason why Lalu
and others were in post-conviction custody for a longer period.
If
there was ever a ‘show case’ cause célèbre, it was Jayalalithaa’s case.
So, why did she get bail so quickly? No doubt, one reason
for Jayalalithaa's bail was Fali Nariman’s advocacy.
The
Karnataka High Court denied bail because Jayalalithaa was a convict and
not an accused. It also felt that these principles applied more
stringently in corruption cases where the Supreme Court declared
corruption infringes human rights.
Firstly,
Nariman put forward a unique principle that Jayalalithaa needed time
outside jail to prepare her appeal. Interesting, but not totally
convincing. Every corrupt convict, murderer or rapist, could reasonably
argue that they need time to prepare their appeal. Who doesn’t?
Corrupt
Should
bail be granted to each convict who has to prepare their appeal? Or do
convicted corrupt politicians need more time to prepare their appeals?
By itself, this principle is too broad to stand alone.
Secondly,
the argument was that Jayalalithaa’s conviction was flawed. Supposedly,
the aggregates were not individuated between the four convicted; and
appropriate deductions were not made from the alleged income.
Once again, this cannot stand alone because every convict will be able to show some credible prima facie case for appeal.
Thirdly,
a distinction was made between suspending the sentence and suspending a
conviction to distinguish an earlier Supreme Court case that denied
interference in cases where conviction was to be suspended (Bhagwan
(1999)).
Conviction
This
is good as far it goes. However, Jayalalithaa eventually wants a stay
on conviction, without which she cannot be a CM or fight elections. At
that time, this precedent will haunt her when she applies for a stay on
conviction. It will be argued that the present bail based on suspending
sentence was granted earlier, precisely because she did not claim bail
on the basis of setting aside conviction which would not have been
granted.
Fourthly,
and in continuation, her lawyer relied on sundry judgments (Kiran Kumar
(2001), Angana (2009), Balakrishna (2012)) which emphasised the
difference between suspending conviction and sentence. In any case, in
none of these cases the bail was given so fast as seen in Jayalalitaa’s
case.
Fifthly,
Jayalalithaa has got conditional bail to file her appeal in two months,
and on a promise that she would not indulge in practices to adjourn
future appeal proceedings. Does this mean a bail after two months is
vouch-safed now?
For
civil libertarians like me, any judgment granting bail with safeguards
is a good thing. But at the same time, other than her supporters in
Tamil Nadu, in the eyes of the ordinary folk, the Supreme Court has
leaned too much in Jayalalithaa’s favour. Prima facie, it appears so.
Now Jayalalithaa can mastermind the Tamil Nadu-government extra-constitutionally.
Bail
for as many is good, but applying it differentially is not. We do not
have clear principles to guide bail decisions - especially in
post-conviction cases, where judges look at the crime and behave totally
with subjective arbitrariness against the poor.
The writer is a Supreme Court lawyer
கருத்துகள் இல்லை:
கருத்துரையிடுக