Why the court gave Jayalalithaa bail

Convicted on September 27, 2014 for four years, the Supreme Court released Jayalalithaa on bail on October 17, 2014. The bail had been denied by the Karnataka High Court on 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

Indian law is greatly deficient in settling consistent principles for bail. The venerable Justice Krishna Iyer’s judgment declaring ‘Bail not jail’ should not lose its shine. He also obviated demanding sureties from strangers from another state. There is a fundamental difference between pre-conviction bail during trial and post conviction jail for convicts. Pre-trial bail for accused is ostensibly governed by  principles for examining (i) the nature of the crime, (ii) whether the accused is a threat to witnesses and evidence, (iii) the danger to society and (iv) the possibility of the accused absconding. In practice there is a dismal state of affairs in which these principles go for six! The rich and powerful get bail much more easily with better lawyers and judges in favour of the wealthy and powerful. The poor suffer further imprisonment.

But with the recent spate of corrupt politicians and hi-fi cases, courts have developed what appears to be a "showcase" exception. Faced with public opinion and media glare, judges seem to make a "showcase" of not granting bail to corrupt politicians with alacrity. With this, the judiciary salvages its own conscience to "showcase" 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 "showcase" cause célèbre, it was Jayalalithaa’s case. Then, 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

So, should bail be granted to each convict who has to prepare their appeal? Or do convicted corrupt politicians need more time to prepare their appeal? 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 interferences in cases where conviction was to be suspended (Bhagwan (1999)). This is good as far it goes.

Conviction

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. That way, her case 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 judgements (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’s 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 vouchsafed now?

For civil libertarians like me, any judgement 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 extraconstitutionally. Bail for as many is good, 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.