Fear of the mighty - Fearlessness of the judiciary / Rights, Remedies and Consequences

On 27.07.2014 the Special Trial Judge, John Michael D'Cunha passed an order of conviction after hearing the arguments of the prosecution and defence against the former Chief Minister of Tamil Nadu, Selvi Jayalalitha and 3 others in the Rs.66.65 Crores disproportionate assets case. After coming to the conclusion that the guilt of the accused has been proved by the prosecution beyond reasonable doubts the Special Court sentenced Selvi Jayalalitha  to four years imprisonment along with a fine of Rs.100 Crores and confiscated the seized properties and also awarded the same imprisonment for other accused while awarding a lesser fine of Rs. 10 Crores each.

This article is not meant to scrutinise the merits and de-merits of the Judgment passed by the Special Trial Judge but intends to go deeper into the legalities, repercussions, ramifications surrounding the order and the propriety expected to be maintained by individuals, societies, groups etc in light of such high profile judgments.

Section 389 of the Code of Criminal Procedure lays down the procedure of suspension of sentence pending an appeal; release of appellant on bail. As per the section, the appellate court can suspend the sentence for reasons to be recorded in writing and if the convicted person is in confinement he or she can be released on bail. The section further states that the power of suspension of sentence can be exercised by the Court which has sentenced the accused without requiring the accused to invoke the appellate authority, if the term of conviction does not exceed three years. In such event the accused, subject to granting of such suspension of sentence by the trial Court itself under Section 389 (3) of CrPC, would not be required to go to the prison immediately. However in the present case as the imprisonment is for 4 years the Sessions Judge ( the Trial Court) is not at liberty to exercise such powers and  hence Selvi Jayalalitha and the other accused had to undergo imprisonment immediately. Section 389 CrPC is extracted herein below:

"Section 389 in The Code Of Criminal Procedure, 1973

389. Suspension of sentence pending the appeal; release of appellant on bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

Provided that the Appellate Court shall, before releasing on bail or on his own Bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term not less than 10 years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced."

Section 389 has a larger importance in the present case in view of the proviso to Section 389 (1) which was inserted by The Criminal Law (Amendment) Act, 2005. The proviso as extracted above does not make it mandatory for the appellate court to give an opportunity to the Public Prosecutor for showing cause in writing against such release if the offence is not punishable with death, imprisonment for life or if the period of punishment is less than 10 years. However at the same time the proviso does not make it mandatory for such appellate courts not to hear the objections in such cases as well. In legal parlance the courts are vested with a discretionary power to call for objections even if the period of imprisonment is less than 10 years or if the offence is not punishable with death or imprisonment for life. Therefore in the present case the accused cannot ask as a matter of right before the appellate court waive the hearing of objections of the Public Prosecutor in suspending the sentence and granting of bail. In fact after an eminent Senior Advocate of the Supreme Court filed an advance hearing petition before the Chief Justice Court in the Karnataka High Court for hearing the matter urgently the CJ had directed for the formation of special vacation bench headed by Justice Ratnakala on 1st October, 2014. However the Bench insisted that the hearing of suspension of sentence and bail application would have to wait until a public prosecutor is appointed and specifically stated that the case required representation from the prosecution side and hence adjourned the matter perhaps by exercising the said discretion vested with the Appellate Judge.

A bare reading of the Preamble of the Representation of Peoples Act, 1951 ( RPA) makes it amply clear that the intention of the Legislators was to prevent persons involved in corrupt practices from representing the people in the House of Parliament and the House of Legislators. The Apex Court has on every occasion ensured that the spirit of the Act is protected and amendments which has the effect of diluting the legislative intention is struck down. The Supreme Court on 10th July, 2013 gave a landmark judgment whereby a bench comprising of Justice A.K.Patnaik and Justice S.J. Mukhopadiya reported in Lilly Thomas vs Union of India reported in 2013 (3) SCC (Cr) 641 struck down Section 8(4) of the Representation of Peoples Act, 1951 as unconstitutional. The said section before being struck down by Supreme Court was brought into force by an amendment in the year 1989 whereby the disqualification as prescribed under Section 8 of the Act will not be effective until the appeal or application against an order of conviction is disposed off. This provided an opportunity for the convicted representatives to file an appeal and continue to be in power and enjoy all the fruits attached therewith for a considerably longer period of time even after conviction.  The relevant portion of the Judgment reads as follows:

"Looking at the affirmative terms of Articles 102(1) (e) and 191(1) (e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3) (a) and 190(3) (a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution." 

The question as to whether a convicted member of Parliament or a State Legislature and a sitting member of a House of Parliament or a House of State Legislature faces further punishment under the Representation of Peoples Act, 1951 besides the conviction already passed against him or her has to be answered by giving due importance to Article 102 (1) (e) and 191 (1) (e) of the Constitution of India. The said Article empowers the Parliament to pass laws that may disqualify membership in either house of Parliament. A disqualification from either the Parliament or State Legislature cannot be equated to a punishment under any of the penal laws of the land. A member of a Parliament or State Legislature is expected to follow certain standards, principles, values and the Constitution has been given sufficient powers to disqualify members indulging in any act which is in contradiction to the dignity of the post that he or she holds. As politics is perceived to be a service to the people and not an occupation or employment such disqualification cannot be termed to be a punishment but only certain checks made by the Legislatures themselves to uphold the integrity of the House of Parliament and State Legislature. 

Article 20 of the Constitution of India clearly protects persons from conviction of offences retrospectively.  Article 20 reads as follows:

"20. Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence

…………………………………….."

Therefore if the law of the land does not deem an act to be an offence at the time of commission of such act or prescribes a lesser punishment, then the person cannot be either convicted or sentenced to a higher punishment subsequently on account of amendment of any law.

From a bear reading of the excerpts of the operative portion of the Judgment of conviction and sentences many question regarding the harshness of the sentence pertaining to imprisonment for 4 years is being discussed in the print and electronic media at length and debated for both sides non-stop on different television channels. Whether the new law prescribing a minimum of 4 years and a maximum of ten years and the intention of the Legislature to bring such an enhanced punishment for the same offence and the said minimum sentence itself being 4 years have all created a psychological bench mark in the mind of the trial Judge while fixing the quantum of sentence are all nuances of Criminal Law which will remain to be answered by High Court or the Supreme Court at appropriate stages of the respective appeals and the outcome of such arguments and findings in such judgments from the appellate Courts will indeed offer great insight into such finer aspects of Criminal Law in general and post conviction consequences, rights, remedies and also provide sufficient guidelines for judicial duties  of a trial judge after recording his judgment of conviction.

While there will be voluminous arguments in the ongoing appeal regarding the quantum of sentence the impact of a new law ( Representation of Peoples Act, 1951  as it stands now) relating to disqualification of an MLA and thereby directly disqualifying  a Chief Minister in office, post conviction in a Criminal case maybe of grave concern to the first appellant, Selvi Jayalalitha since RPA enabled her to stay as an MLA and Chief Minister by filing a criminal appeal within three months and obtaining suspension of sentence alone and ensuring she doesn't undergo imprisonment pending appeal, before the landmark judgment given by Hon'ble Apex Court. Therefore a delayed justice in view of the protracted trial which ultimately saw the striking down of a beneficial provision of law for appellants against a judgment of conviction who are members of state legislature or parliament or holding any other office on account of such membership has infact caused huge injustice to the first appellant who is a Chief Minister in power. How and whether there is a legal remedy to such an injustice has to be examined by legal experts outside the purview of the present criminal appeal. The cause for delay and the revisions and appeals filed by the accused at various stages to High Courts and Supreme Court may not be put against the accused particularly after conviction for deciding on the imposition of a heavier sentence of imprisonment. Whether the said delay has also been a parameter for the trial Judge in this case to pass the sentence of 4 years imprisonment as against the minimum of one year as it stands in law for the offences committed during the check period between 1991-1996 are finer questions of law that will be scrutinized and examined by the reputed Judges of higher Judiciary in the present appeal. The fact that any judgment of the trial Court requires a re-look by a higher Judiciary is the very basis of appellate jurisdiction of High Court and Supreme Court. It is from this fact that the right of appeal stems out. Every accused despite a judgment of conviction is statutorily entitled to challenge the said judgment and sentences under the provisions of law. If the accused was on bail throughout the trial period and the trial Judge could suspend the sentence of imprisonment if he had imposed it within the statutory slab of 3 years then in all probabilities the High Court will exercise discretion in suspending the sentence for the enhanced imposition of one year with perhaps appropriate bail conditions. Whether the appellant should remain in judicial custody for a longer period during the hearing of an application to suspend the sentence of imprisonment and fine are again absolutely discretionary powers wholly vested with the appellate Judge. The Appellant has to only await favourable interim orders at the earliest in the given circumstances.

It is unfortunate that a judgment is being discussed with utter disregard by people related to the accused or attached emotionally to the accused and organising public protest (even in a peaceful manner) particularly when the criminal case that ended in conviction was an individual case nothing to do with the rights of any State, people at large, community of linguistic or religious nature or a social issue of national or regional importance etc. It is also unfortunate that several imaginary theories without any substance including theories of conspiracy by politicians and political parties be alleged by individuals and groups against the judgment of conviction and sentences that is subjected to an appeal and now pending scrutiny by the High Court. Whether the High Court can direct print, electronic and social media from exercising restrain of the highest order to avoid scandalous and unfair public opinion being created on lower judiciary. Whether the appellate court can do it suo motto or whether the High Court in writ jurisdiction can take judicial notice of such developments are again finer areas of law which definitely requires introspection by the higher judiciary. Whether there is a bias against the appellant in the appellate court trying to guard and protect the morale of the trial Judge by unduly delaying the hearing of an otherwise normal criminal appeal in which accused are sentenced for a period of 4 years but for the high profile individuals ranked as accused before the trial court, is also a question which will have to be answered with judicial conscience by the appellate Judge. 

Burning of effigies, shutdown of shops and establishments, black days, protesters mouth tied with black band, sadness and gloom and grief expressed by Ministers swearing in at a Government ceremony ( reading out of the oath of fearlessness, integrity, not showing favour etc) and demonstrating perhaps some sort of fear, lack of integrity to the sovereign function and perhaps an indication to favour at least their leader, may all have sent varied signals to the literate/ educated class on one hand and the illiterate and emotional masses following the popular leader on the other hand and result in varied reactions/consequences. The public sentiment happening voluntarily and being indirectly spread through the above acts of literate and illiterate people undoubtedly causes public nuisance and may also affect the daily routine of an ordinary person.

Law relating to fines: Whether the imposition of 100 Crore fine on A1 is justified. Does it show bias of any nature by the judge as against the accused and has the power of A1 become a reason for the trial judge to react in a more than harsh manner,  perhaps causing bias to his own reasoning, for imposition of a bigger sentence and an exorbitant fine? Has a legal ego kick started during the process of judgment writing to impose the highest fine that has been imposed on an individual in a criminal case in the sentence of Indian judiciary? Whether practice of High Court insisting on payment of fine as pre-requisite condition for entertaining suspension of sentence of imprisonment and thereafter suspending only sentence of imprisonment and not the sentence of fine was another reason by the trial judge to impose such a heavy fine on an individual and make her personal liberty ( to which she is entitled pending appeal) herculean or difficult legally? Whether there is a bias against the particular accused on that portion of the sentence (fine) will all be explored at great depths by legal luminaries inside and outside the court hall in the days to come. Being popular, powerful and appearing to be rich vis-a-vis the fate of common man in prolonged litigation and  post conviction sufferings before being granted personal liberty pending appeal and the moral determination and inner ego of a strict judge to ensure that justice should also be seen to be done and perhaps going a little further than the judicial requirement which "little" causes huge impact on legal and social repercussions and ramifications, will also be hopefully dealt with sufficient justification and explanation in this sensitive appeal involving various finer questions of law.

The attempt of the author has only been to view the post conviction situation of a sensitive case in all angles of law and frame searching questions which can be answered only by persons with judicial knowledge, judicial conscience and perhaps guide the society at large to act with social sense, constitutional responsibilities of individuals and communities even in the wake of unexpected or unfavourable verdicts coming against popular persons and leaders in power and the restraint required to be exercised by every responsible citizen of the country. It is only hoped that our judiciary which is an independent judiciary with a sound appellate system to cure defects if any at various stages of the case in a legal manner will definitely address even such wider issues while pronouncing judgments in such sensitive appeals.

M.L.Joseph,

Managing partner, Chennai Law Associates

(Research inputs from Nevin Sabu and Aashish M Dafaria - Advocates, Chennai Law Associates)