Undesirable actions bring about undesirable situations. That the Supreme Court should have to transfer the disproportionate assets case against the Tamil Nadu chief minister, Ms J. Jayalalithaa, and her four associates out of the home state is hardly desirable. The highest court in the land is stating that it has no confidence in a state executive. The larger picture is not pretty; it shows the arm of the judiciary encroaching upon the executive’s territory, something that would upset the premises of Indian democracy. Yet the blatant misuse of the machinery of justice in the state of Tamil Nadu has left the Supreme Court with no option. Responding to the petition of the Dravida Munnetra Kazhagam leader, Mr K. Anbazhagan, that the chief minister was influencing the trial and avoiding personal appearances for the hearings, the court directed Karnataka to form a special court in Bangalore, with a special judge, a senior advocate as independent public prosecutor and daily hearings.
The Supreme Court’s decision is intended to check the unprincipled abuse of power by a politician. For Ms Jayalalithaa, this may seem a little unpleasant, especially since she was vindicated by the courts in the government employees’ strike case. But here the Supreme Court is concerned purely with the loss of public confidence in the fairness of the trial and the aborting of criminal justice. The present public prosecutor, the Supreme Court has said, seems to have acted “hand-in-glove with the accused”. Apparently, this public prosecutor had never bothered to delve too deeply into the chief minister’s rather “frivolous” reasons for absence in court, neither had the matter of witnesses who had retracted their original statements been gone into. Sixty-four witnesses had retracted their statements after Ms Jayalalithaa came to power in March 2001, three public prosecutors and the special prosecutor had resigned, and the special judge had been transferred. In the special court to be put up in Bangalore under the Prevention of Corruption Act, the new prosecutor can cross-examine the witnesses and bring charges of perjury if necessary, while the court will give protection to the witnesses on request. All documents are to be transferred to Bangalore from the Tamil Nadu court and the accused are to appear personally to record their statements. The Supreme Court’s instructions are themselves a damning criticism of the government in Tamil Nadu. More, they expose the lengths to which the politically powerful can go to save their chairs and haloes. In the end, it is not for the courts, but the electorate, to keep them in check.