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Centre's modified stand on special courts puts Jaya in a spot

N Sathiya Moorthy in Madras

Can a 'minority government' at the Centre represent the Union of India in a pending court case?

The Supreme Court bench hearing the 'special courts case' may have to consider this question if counsel for former Tamil Nadu chief minister J Jayalalitha raises it at the resumed hearing tomorrow.

"If we felt peeved earlier, we feel cheated now," said a source in the All-India Anna Dravida Munnetra Kazhagam on the curious turn the case has taken before Justice N T Nanavati and Justice S P Kurdukar.

The two judges are hearing Jayalalitha's appeal against the Madras high court verdict upholding the constitutional validity of the 'special judges' appointed by the state government to try the corruption cases against her.

They are also hearing the state government's petition challenging the validity of the Centre's notification transferring most of these cases back to the sessions courts in Madras.

"It's the notification that we feel cheated about," the AIADMK source said.

The Centre had earlier claimed exclusive powers under the Prevention of Corruption Act to allot the cases to special courts. "It was on this premise that it transferred the cases from the judges who had been appointed by the state government. Even Attorney-General Soli Sorabjee, appearing for the Union of India, had defended the Centre's powers."

But the attorney-general's arguments before the Supreme Court yesterday have clearly irked the AIADMK. Sorabjee still maintained that the Centre alone had the power to appoint special courts under the PCA, but conceded that the 'prior concurrence' of the chief justice of the provincial [Madras, in this case] high court was needed to allot cases to these courts.

Worse, he admitted that such 'prior concurrence' was not obtained before the Centre issued its notification. Any consultation with the Madras high court chief justice before the Centre issued the notification was also "minimal", he conceded.

Tamil Nadu counsel V N Reddy then told the court that the permission of the chief justice of the Madras high court had been obtained by the state government before appointing the 'special judges'.

Said the AIADMK source, "The Centre's notification gave us the impression that it was foolproof and would stand judicial scrutiny. But now we have the attorney-general saying it's all leaking."

He pointed out that Jayalalitha herself had raised the question of 'prior concurrence' in the high court when challenging the appointment of the special judges. "Even the Centre, then under the United Front government, had conceded the need for concurrence. And now we have the Centre telling the Supreme Court that no such concurrence was actually obtained while notifying the transfer of cases!"

Said a state government law officer, "Prima facie, we have a strong case. What the state government had appointed were only 'additional courts' under the Criminal Procedure Code with 'special judges', not 'special courts' under the PCA, where the Centre alone has the power to allot cases. Even then, the 46 cases were allotted only by the high court as the administrative superior, not by the state government."

"The Centre's 'modified stand' in the Supreme Court could strengthen the state government's position," said a lawyer. "Naturally, the AIADMK leadership is angry."

The only remedy at this stage, according to legal experts, may be to argue that a minority government cannot pursue the case.

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