The bail hearing — as it happened in the Supreme Court

The Hindu NEW DELHI, October 18, 2014

The bail hearing — as it happened in the Supreme Court

10.30 a.m.:  The First Court of the country presided over by a Bench led by Chief Justice of India H.L. Dattu and Justices Madan B. Lokur and A.K. Sikri assembles for the day. The courtroom is jam-packed. Many lawyers from Tamil Nadu and AIADMK cadre present in the court and visitors’ gallery.

11.30 a.m.: Senior advocate Fali S. Nariman, for former Tamil Nadu Chief Minister Jayalalithaa, enters the courtroom in his quiet fashion. He is accompanied by senior advocate KTS Tulsi, who represents two of the accused.

11.40 a.m.: Item 65 on the board is called. Arguments commence with Mr. Nariman driving right into the Karnataka High Court’s bail order. He says the High Court judge has committed an error. Says the High Court refers to the 2012 case law - State of Maharashtra Through CBI, Anti Corruption Branch, Mumbai vs. Balakrishna Dattatrya Kumbhar - which deals with stay of conviction and not suspension of sentence.

11.42 a.m.: Mr. Nariman says using the 2012 case law to note that “corruption is a violation of human rights” in a limited question of suspension of sentence is wrong.

11.44 a.m.: Justice Dattu responds that the HC judge is merely saying that these are white-collar crimes. Mr. Nariman responds that a catena of Supreme Court decisions says “suspension of sentence when the criminal appeal is pending is a valuable right afforded to the accused, and is the norm.”

11.46 a.m.: Mr. Nariman picks up each judgment used by the Karnataka High Court to justify the refusal of suspension of sentence to counter that in all of them, the tenor of judicial reasoning is that suspension of sentence is the norm, and if denied will leave the exercise of criminal appeal “an exercise in futility” for the accused.

11.53 a.m.: Mr. Nariman argues that the Special Court convicted his client by “ ignoring a series of evidence on income and assessments placed before it to show that there is no case made out against her under the Prevention of Corruption Act.

12 noon: “But how many years did you take to complete the trial?” the Chief Justice interrupts Mr. Nariman.

“Far too many, My Lord,” Mr. Nariman concedes.

“If we pass the suspension of sentence now, you will take another two decades to finish the appeal,” Justice Dattu responds.

12.07 p.m.: Mr. Nariman says he will give an affidavit on behalf of his client that the appeal in the High Court will be completed in two months. There will be no delay on Ms. Jayalalithaa’s part.

“Should we not take into consideration that the conduct of the accused in the Special Court, in the High Court even in the Supreme Court... the case went on for years and years and years,” the CJI says.

12.09 p.m.: “This is a case in which the entire country has some considerations,” Mr. Nariman submits.

“We do not take all that into consideration. That does not matter for us,” the Chief Justice replies.

“I withdraw my comment,” Mr. Nariman pulls back.

12.10 p.m.: Mr. Nariman suggests to the Bench that “the lady can be confined to her house in Chennai for two months till the appeal is heard.” To this, the Chief Justice replies “we do not pass such unusual orders. Either we grant bail or not.” The Bench then goes into a huddle.

12.12 p.m.: Chief Justice Dattu asks within what time can Ms. Jayalalithaa file documents and be ready to fight her criminal appeal in the Karnataka High Court. Mr. Nariman replies “in six weeks.” He says the appeal hearing can be finished by February 2015. The Chief Justice says the court is willing to take his word for it and he does not have to file an affidavit. Mr. Tulsi submits he agrees with Mr. Nariman.

12.15 p.m.: Mr. Subramanian Swamy, the original complainant in the DA case, is given a chance to make his submissions. He says there has been sporadic violence in Tamil Nadu. Cartoons against the High Court judge have been put up.

He says the situation is “extraordinary” and that bail should not be granted. “She could have put a stop to the violence. One command from her was enough. But she has not. Her entire Cabinet is in Karnataka. Her Cabinet cannot take oath without crying,” Mr. Swamy submits.

Chief Justice Dattu turns to Mr. Nariman for an explanation. “All this will be communicated. I have already told them. A directive has to be indeed issued by her. They should maintain political morality,” Mr. Nariman assures the court.

12.20 p.m.: The Chief Justice tells Mr. Swamy: “An ‘extraordinary’ circumstance is when a person tries to run away to another country after conviction. Her party workers are unruly, what can she do? Is there anything to show that she ordered the violence?”

12.24 p.m.: “You prepare the paperbook [case documents and file] and keep it ready in two months. Then we will tell the High Court to hear the appeal in three months. But Mr. Nariman, if the paperbook is not ready in two months, we will not give you a day more,” the Chief Justice tells Mr. Nariman.

12.25 p.m.: A short order releasing the four accused on bail provided they present bond with solvent sureties to the satisfaction of the trial judge. The case to be listed on December 18.

“Keep the paperbook ready, Mr. Nariman on December 18. We will not give even one day’s extension [of bail],” the Chief Justice repeats amid the loud buzz of excitement from the crowd in the court.