Advocate KV Dhananjay argues that the sentencing order jailing then-Tamil Nadu Chief Minister J Jayalalithaa, is highly likely to be set aside by the High Court of Karnataka.

A Chief Minister of a State is convicted of corruption: The then Chief Minister of Tamil Nadu, Miss Jayalalithaa was convicted on the morning of 27 September 2014 for an offence punishable under Section 13(1) (e) of the Prevention of Corruption Act, 1988. This provision speaks of a public servant in possession of wealth disproportionate to his known sources of income and which wealth is presumed in law to have been accumulated by criminal abuse of public office.

In a trial that is conducted to let the prosecution first establish the existence of such disproportionate wealth in the name of or for the benefit of the accused, the burden would shift afterwards upon the accused to explain to the satisfaction of the court that he is not in possession of disproportionate wealth as claimed by the prosecution or that such disproportionate wealth in his name, possession or for his benefit was acquired through lawful means.

A failure to properly satisfy the court would invite conviction for a minimum jail term of one year and a maximum jail term of seven years. Jayalalithaa, a public servant, after such a trial, was convicted on the morning of 27 September 2014 on a charge of criminal conspiracy with three other individuals to facilitate her illegal acquisition and unlawful possession of wealth disproportionate to her known and permitted source of income.

Sentencing arguments were subsequently set on the same day as the passage of the order of conviction: After pronouncing upon the conviction on that morning, news reports state that the trial judge had set the matter down for arguments on the quantum of sentence to the post-lunch session on that same day, that is, 27 September 2014.

It has been further reported that the arguments on sentencing were heard as scheduled on the afternoon of 27 September 2014. The advocates for the convicts are reported to have sought for the infliction of the minimum punishment prescribed under the law whereas the prosecution is reported to have urged for the infliction of the maximum punishment prescribed under the law.

After weighing the arguments on both sides, the trial judge had immediately thereafter pronounced upon the quantum of sentence by awarding four years of simple imprisonment upon each of the four convicts and has terminated the trial proceedings with the said pronouncement.

Lawyers for Jayalalithaa are likely to prevail in the High Court on the ground of inadequate opportunity to advance their arguments for a reduced sentence: It is my opinion here that the lawyers for the convicts and more particularly, the lawyers for Jayalalithaa are likely to prevail in the High Court should they establish and satisfy the High Court that they were not granted a reasonable and adequate opportunity by the trial judge to advance their arguments and place relevant and verifiable materials before him on the aspect of sentencing.

Opinion expressed in other news outlets: There is also an interesting opinion published by The Times of India newspaper with the tagline “Did Bangalore Court Violate SC Judgment in Jayalalithaa Case?”.

In summary, it argues that the judgment of the Supreme Court in the case of Allauddin Mian v. State of Bihar [(1989) 3 SCC 5] (‘Allauddin’ for short) is to the effect that a court should not pass orders on conviction and sentencing on the same day and that arguments on sentencing must be advanced to a future date so as to enable a reasonable opportunity to the convict to present his arguments and to place relevant materials for the perusal of the court and that the same not having been done in the Jayalalithaa’s case, the order of the trial court is vulnerable on appeal to the extent of it not having accorded sufficient opportunity to the convict to argue on her sentencing.

The rule laid down by the Supreme Court in the Allauddin judgment: To begin with, the judgment of Allauddin does lay down a general rule that after an order of conviction has been passed, the arguments on sentencing must be deferred to a future date so as to enable both the convict as well as the prosecution to place relevant materials in support of their respective arguments.

Adverting to Allauddin, it must be said that the offence of murder carries as punishment, imprisonment for life or death and a trial judge who is inclined to award the greater punishment of death is cast with a positive duty to state reasons for not settling for life imprisonment instead. This duty is cast by the actual wording of Section 354(3) of the Criminal Procedure Code.

In Allauddin, the trial judge had convicted a certain person for murder and had proceeded to pass a sentence of death on the same day on which the conviction was also entered. The Supreme Court therefore laid down a broad and general rule in its judgment that the question of sentencing should not be casually approached by the trial courts and that a reasonable opportunity should be given to both the sides so as to let them place relevant materials before the court and to advance their arguments on the strength of such materials. The court then cautioned that, should this general rule not be observed by the trial court, the order of sentencing would be vulnerable on appeal or revision. The words of the Supreme Court in this judgment are very important to our law of sentencing and must be noted: [From (1989) 3 SCC 5]

10. Even a casual glance at the provisions of the Penal Code will show that the punishments have been carefully graded corresponding with the gravity of offences; in grave wrongs the punishments prescribed are strict whereas for minor offences leniency is shown. Here again there is considerable room for maneuver because the choice of the punishment is left to the discretion of the Judge with only the outer limits stated. There are only a few cases where a minimum punishment is prescribed. The question then is what procedure does the Judge follow for determining the punishment to be imposed in each case to fit the crime? The choice has to be made after following the procedure set out in sub-Section (2) of Section 235 of the Code. That sub-Section reads as under:

"If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law."

The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced sub-Section (2) to Section 235. The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality. Mr. Garg was, therefore, justified in making a grievance that the Trial Court actually treated it as a mere formality as is evident from the fact that it recorded the finding of guilt on 31st March, 1987, on the same day before the accused could absorb and overcome the shock of conviction they were asked if they had anything to say on the question of sentence and immediately thereafter the decision imposing the death penalty on the two accused was pronounced. In a case of life or death as stated earlier, the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this case, without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the Court, the Court's decision on the sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has far more serious consequences on the offender and his family members than in the case of a purely administrative decision; a fortiori, therefore, the principle of fair play must apply with greater vigor in the case of the former than the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. Likewise a sentencing decision taken without following the requirements of sub-Section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing court must approach the question seriously and must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence. We think as a general rule the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender…

In order to appreciate the aforesaid rule that has been issued by the Supreme Court, it becomes necessary to once again examine the language contained in Section 235(2) of the Criminal Procedure Code, 1973 (‘Code’ or ‘Criminal Procedure Code’, hereinafter). This provision reads as under:

Section 235(2): If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.

The express meaning of Section 235(2) of the Code: All that the plain language of Section 235(2) of the Code requires is that a hearing must be granted to the convict before an order of sentencing is passed against him. To illustrate, if a trial court had set a particular date for the pronouncement of its judgment and in that very judgment, the court had set out both the order of conviction as well as its order on the quantum of sentence in a single pronouncement, such an order would obviously be violative of Section 235(2) of the Code on the ground that the accused was simply given no opportunity of being heard after he was informed of his conviction.

It would be necessary to note that Section 235(2) however, does not use the words ‘reasonable’ and all that it says is that an opportunity of being heard be given to the convict. In the Allauddin judgment, the Supreme Court has done two distinct things: it has declared that the words ‘hear the accused’ in Section 235(2) shall carry the meaning that a ‘reasonable opportunity of being heard be given to the convict’ and the court has further proceeded to amplify the meaning it just gave to Section 235(2) by holding that the hearing on sentencing should be advanced to a future date so as to enable both the sides to present relevant materials in support of their respective arguments.

Allauddin judgment is not bad in law because it did not notice a relevant statutory provision that had barred grant of such adjournment: Section 309(2) of the Code lays down a rule that is diametrically opposite to that laid down in the Allauddin judgment. It says:

Third Proviso to Section 309(2): Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.

True, the aforesaid injunction in Section 309(2) of the Code was not brought to the notice of the Supreme Court in Allauddin. However, the literal meaning of the aforesaid provision is such that a trial court is not empowered to grant an adjournment if sought by the convict to render his sentencing arguments. This meaning would apply even with respect to murder trials as the said provision makes no exception to such trials.

So, let us ask here if the Supreme Court, after Allauddin, has accorded to Section 309(2), the literal meaning that it carries. The answer is in the negative. The literal meaning of Section 309(2) has been eschewed in later Supreme Court decisions in favour of a liberal meaning to hold that a trial court is more than empowered to grant an adjournment should it consider it necessary to allow to the convict, a reasonable opportunity to advance his arguments for a reduced sentence.

In the result, with the proviso to Section 309(2) of the Code not receiving a strict construction in the hands of the Supreme Court, it fails to weaken the rule of law issued by it in Allauddin.

In other words, the fact that the Allauddin judgment had not even noticed the proviso to Section 309(2) Code would matter only if the said proviso would receive its literal meaning and thereby, could have affected the outcome in Allauddin. However, with the Supreme Court refusing to give to that proviso, its literal meaning, the Allauddin judgment does not lose its vitality.

Lawyers for Jayalalithaa could urge in the High Court that there has been a miscarriage of justice: The aforesaid rule that has been issued by the Supreme Court in Allauddin is salutary and is necessarily binding upon the courts below even when they are not faced with a murder trial.

In other words, although the Allauddin judgment was rendered in the context of a murder trial, nothing in the law issued by the Supreme Court in that judgment is so expressed as to be applicable only to murder trials. Therefore, it would be entirely possible for the lawyers for Jayalalithaa to obtain the attention of the High Court towards the possibility of miscarriage of justice in view of the fact that the trial judge in her case had pronounced upon the conviction as well as on the quantum of sentence on the same day and that the same is in stark contrast to the rule laid down in the Allauddin judgment by the Supreme Court.

The Allauddin judgment, however, does not by itself support an interference with the order of sentencing: The Allauddin judgment of the Supreme Court would certainly give to the lawyers for Jayalalithaa their day in court on the aforesaid plea.

It would not, however, ensure that they would prevail unless they also independently demonstrate that by reason of such haste, they did not have a reasonable opportunity to present their arguments and to place relevant materials before the court and that had only they been given an opportunity to do so at a future date, they would have been able to present the court with sufficient materials which could have prompted the judge to award a lesser term of imprisonment.

In other words, I do not read the judgment of the Supreme Court in Allauddin as an automatic invitation to a High Court or to the revisional court to enquire if the order of conviction and the order of sentencing were passed on the same day and to necessarily interfere with the sentencing order if such was the case.

Jayalalithaa will have to show a ‘failure of justice in fact’ at the High Court and a mere reliance upon the Allauddin judgment would be of little avail: In short, I do not really think that the Allauddin judgment of the Supreme Court would by itself aid the lawyers for Jayalalithaa to obtain from the High Court on appeal, the setting aside of the order of sentencing on the ground that adequate opportunity was not granted to her to place her case before the court for awarding of a lesser term. The most that the Allauddin judgment could do in the specific facts of this case is to invite the attention of the High Court to the possibility of there being a miscarriage of justice.

Whether there was in fact, a miscarriage of justice by reason of the sentencing order being passed on the same day as the order of conviction will have to be decided independently of what has been said in Allauddin judgment with reference to the specific facts and circumstances in this case.

I do not know about the facts and grounds on which Jayalalithaa was convicted in this case and I have no interest in entering into that issue here. I am limiting myself in this article to the simple question of whether, in the facts and circumstances of this case, Jayalalithaa could argue and reasonably demonstrate on appeal that she was not provided with an adequate opportunity to place relevant materials in support of her sentencing arguments.

Before we embark upon the same, we must note two statutory provisions in particular.

In terms of the requirement of the Criminal Procedure Code, an order of sentencing cannot be reversed by any court unless it first reaches an opinion that the procedure adopted in the matter of sentencing has occasioned a ‘failure of justice in fact’. Section 465(1) of the Code reads as under:

465. Finding or sentence when reversible by reason of error, omission irregularity. (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

Notwithstanding the aforesaid requirement already cast by the Criminal Procedure Code, the Prevention of Corruption Act, 1988 has once again mandated that a sentencing order cannot be interfered with unless and until the interfering court finds that the procedure adopted by the court below in the matter of sentencing has in fact, occasioned a ‘failure of Justice’. Section 19(3)(a) of the Prevention of Corruption Act, 1988 reads as under:

19 (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-Section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

As such, the rule issued by the Supreme Court in the Allauddin case does not go so far as to render the order of sentencing passed in the Jayalalithaa trial as reversible merely because both the order of conviction as well as the order of sentencing were delivered on the same day.

Jayalalithaa will have to plead and show far more than the occurrence of both the events on the same day in order to prevail at the High Court.

The burden of Jayalalithaa before the High Court with respect to a challenge to the sentencing order: What really then is Jayalalithaa required to show before the High Court in order to demonstrate that the order of sentencing that was passed by the trial court on the same day as the order of conviction has in fact, occasioned a failure of justice? Her lawyers would be the best judge of it - in fact, the finest lawyers in the country are arguing for her.

In my opinion, the burden of Jayalalithaa before the High Court might encompass the following.

Before we begin, should not there be an enquiry over whether the counsel for Jayalalithaa did even ask for more time before the trial court and whether they did raise any manner of objection to the trial judge holding hearing on sentencing on the same day? Let us say that her counsel did not at all raise any manner of such objection.

What is a convict expected to do before the High Court if her counsel had not objected at all before the trial court to the hearing of sentencing arguments on the same day that the order of conviction was passed? More importantly, why should it matter whether the counsel for the convict had effectively represented her case at the court below in that regard?

Sub-Section 2 of Section 465 of the Code is an answer to the aforesaid question and it reads as under:

465. Finding or sentence when reversible by reason of error, omission irregularity.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

As such, in terms of the plain language of Section 465(2) of the Code, the High Court is required to first enquire whether the counsel for the convict had raised any manner of objection at the trial court to the holding of sentencing hearing on that very day. In the event that the High Court finds that the counsel for the convict had not effectively objected to such holding of hearing, the question really turns on whether the convict must suffer due to the fault of her counsel or whether she must be held to be legally immune from such omission of her own counsel to raise an effective objection in the court below.

Going by the jurisprudence built in our country, it is fair to say that a convict is generally immunised from the consequences of fault of his counsel.

The legal jurisprudence in our country on the subject of sentencing is woefully inadequate: At the same time, it is quite necessary to note that our legal jurisprudence is woefully short and unreliable on the aspect of sentencing and several statutory commissions have in fact, lamented on the unfettered discretion that has been vested in judges and that reliable rules and guidelines are nowhere to be found in our criminal jurisprudence. The Committee on Reforms of Criminal Justice System (the Malimath Committee) in 2003 had lamented that:

“…The judge has wide discretion in awarding the sentence within the statutory limits. There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case. Therefore, each Judge exercises discretion accordingly to his judgment. There is therefore, no uniformity. Some Judges are lenient and some Judges are harsh. Exercise of unguided discretion is not good even if it is the Judge that exercises the discretion…”

When such is the case, it would be unreasonable for a superior court to hold a counsel for an accused who has just been convicted to such a standard so as to require that he forcefully and effectively object to the holding of the sentencing hearing on the same day as the order of conviction.

It is more than likely that even a formidable counsel who might have been positively aware of the Allauddin judgment of the Supreme Court might be dissuaded from displeasing a trial judge who would wield a substantial and nearly unfettered discretion to award any term of sentence that he is lawfully authorised to inflict. Essentially, in the interest of justice, this would mean that the enquiry in a superior court over whether the counsel did in fact raise any such objection before a judge who must necessarily appear to be too prominent to be displeased in the matter of sentencing is better discarded in favour of a mere enquiry over whether, on the facts before the superior court, the convict, through his counsel, had been given a reasonable opportunity of presenting his case for a reduced sentence.

Is there a right in a convict to obtain a copy of the judgment of conviction in order to effectively plead for a reduced sentence? Can it be said that the convict cannot be said to have had a reasonable opportunity of putting forth his arguments for a reduced sentence if only he had not been provided with a copy of the judgment convicting him?

I would think that the law cannot reasonably hold that a convict has had a reasonable opportunity of arguing for a lesser sentence unless and until he was in fact provided with a copy of the judgment of conviction against him.

While such a rule might certainly be construed as a broad and general rule for the protection of a convict who is literate, this very rule might apply with greater force to a public servant who has been convicted of an offence under the Prevention Of Corruption Act, 1988 as it is expected that a public servant and that too, a public servant who holds a constitutional post is ordinarily expected to be literate.

This rule, however, finds no statutory sanction and in fact, Section 363 of the Criminal Procedure Code says a very different thing – it speaks of a right in the accused to receive a copy of the judgment immediately after his sentencing. It reads as under:

363. Copy of judgment to be given to the accused and other persons. (1) When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost.

So, once such a right on the part of a convict to receive a copy of her conviction judgment before she embarks upon her sentencing arguments is pleaded before an appellate or a revisional court, it would be entirely reasonable for the prosecution to argue that a convict had no statutory right to receive a copy of the judgment convicting her before asking her to commence her sentencing arguments.

Such an argument of the prosecution would be very difficult to overcome in view of the fact that no such right has been recognized until now in this country.

Therefore, it would be very difficult to argue as the sentencing law currently stands, that a convict would have a right to a copy of the judgment in order to afford her a reasonable opportunity of arguing for a lesser sentence. Someday in the future, it is foreseeable that as the law of sentencing advances in this country, a right of this magnitude might come to be recognised in the hands of a convict.

All the same, it is not quite difficult to see that when a convict is not provided with a copy of the judgment of conviction, she would not really know about the approach that the trial judge had taken to convict her in the first place.

The pattern of reasoning that the trial judge had adopted in arriving at the guilt of the accused will hold valuable clues to the lawyer for the convict on the relative persuasive ability of various arguments that he proposes to advance before the convicting judge.

Nevertheless, in view of the fact that there is simply no defined right at this moment for a convict to receive a copy of the judgment of conviction prior to advancing arguments on sentencing, I will leave this discussion here.

The essential burden – the ‘character’ of the convict: The essential burden that the lawyers for Jayalalithaa will have to discharge before the High Court in order to ask for a setting aside of the order of sentencing on the ground of it having been preceded without any reasonable opportunity of being heard is that they demonstrate a ‘favourable’ character in Jayalalithaa who was, of course, a public servant at the relevant time of commission of the offence and has also been the Chief Minister of Tamil Nadu in some of the 18 years that have intervened between the commission of the offence and the pronouncement of judgment convicting her.

On the date of her conviction, she was the Chief Minister of Tamil Nadu with her political party securing a comfortable majority in the last elections held to the Tamil Nadu legislative assembly.

It would be possible for her lawyers to argue before the High Court that the sentencing should and does take into account the ‘character’ of the convict. I am not going to explain here on how the ‘character’ of a convict would be a relevant factor in deciding upon the quantum of sentence.

The question that also confronts any person who proposes to establish his client as a person of good character is quite a profound challenge in law – how is one to establish that the person who just came to be convicted by a court of competent jurisdiction on an offence involving moral turpitude is somehow, a man of character? The answer, in the facts and circumstances of this case, lies in doing away with attempting to prove that the convict is a ‘person of good character’ and to instead deal with the ‘behaviour’ of the convict while she occupied a public office.

‘Good public deeds’ of a convict Chief Minister or public servant: In other words, the lawyers for Jayalalithaa may very well invite the attention of the court to her public deeds while she served as a public servant and more particularly, as the Chief Minister of Tamil Nadu.

Again, one might just wonder if it really matters at all if a public servant who is highly corrupt is also a person who is known to have often acted in public interest by initiating charitable and benevolent programs to benefit the public.

This question will largely remain unanswered for the present in our country in the context of the woefully inadequate law of sentencing that we must live by at present and the High Court cannot reasonably enter into a discussion on whether it would have been a relevant argument for Jayalalithaa had she informed the trial court that her several public deeds that have apparently helped and benefited the poor people in Tamil Nadu should act in favour of a lesser sentence.

She would benefit, however, if the High Court would notice that as the law of sentencing stands at present, the court cannot rule out on such an argument being relevant to the aspect of sentencing. The only fair question that the High Court could essentially delve into is not whether the several arguments that would be advanced before it by her lawyers were relevant to the aspect of sentencing but whether she had an opportunity before the trial court to advance those very arguments so as to let the trial judge rule on the relevance of those very arguments. This preference to one over the other stems from the well-established principle of law that if a court could adopt two views with respect to a criminal defendant, it would adopt that view which would benefit him in contrast to the view that would act to his detriment.

With the law of sentencing still remaining in its infancy in India, should the lawyers for Jayalalithaa want to argue that her public deeds and the benefits that those deeds have conferred upon the poor must be treated as a relevant factor in awarding a lesser sentence of imprisonment, it would not be possible for a superior court to satisfactorily rule out the relevance of such an argument to the trial court and the superior court must necessarily relegate such an argument to the trial court and cannot venture into a decision on the relevance or otherwise of such an argument until the trial judge has had an opportunity to first consider the same and has thereafter decided upon its value to his order on sentencing.

A narrow option before the High Court: Therefore, it does stand to reason that should the lawyers for Jayalalithaa argue before the High Court that they intended to persuade the trial judge about her various public deeds while serving as a Chief Minister with a view to obtain a lesser term of imprisonment, the High Court would reasonably be left with little option than to set aside the order of sentencing should it be satisfied that her lawyers simply did not have a reasonable opportunity of presenting such arguments in view of the short time that was awarded to them.

It could find that arguments of such a nature would necessarily require her lawyers to spend considerable time with her to find out about her own public deeds.

Furthermore, lawyers would necessarily want time then to obtain objective and verifiable government records to show for such public deeds and that an exercise of such a nature could not have been forced upon them on the afternoon of the very day on which she stood convicted.

Should the appellate proceeding take such a direction, the High Court would then have no option but to set aside the order of sentencing on the short ground that the same was not accompanied by a reasonable opportunity to the lawyers for Jayalalithaa to present their arguments for a lesser term of imprisonment.

The order of sentencing is highly vulnerable on appeal and is very likely to be set aside: It is my view that the order of sentencing passed by the trial judge awarding four years of simple imprisonment upon Jayalalithaa is highly likely to be set aside, almost summarily by the High Court and that the trial court would be instructed by the High Court to enter into the quantum of sentencing afresh after a reasonable opportunity is granted to her lawyers to present their case again for a lesser sentence. In view of the highly unsatisfactory law that we have on sentencing, I see little possibility of the High Court not yielding to a persuasion by Jayalalithaa’s lawyers in the manner that we have discussed above.

There is, however, a short window of opportunity to a convict in such cases and it even might have closed already – this article has assumed that it hasn’t yet: However, I know nothing of what has been pleaded in Jayalalithaa’s appeal and I must therefore also make room for the possibility here that should Jayalalithaa’s lawyers begin to attack the conviction and relegate the illegality in the sentencing order to a later point of time, the High Court would very well be justified in entering into the legality of the suspension order only after it has first heard the appeal and given the fact that it is fully empowered to itself vary an order of sentencing should it find that it is necessary in the interest of justice to do so, it may very well allot to itself, the power to suitably modify the order of sentencing rather than to set it aside. This latter course of action cannot be ruled out at all should the High Court’s attention be primarily invited towards the error in the order of conviction.

The vulnerability of a haste order of sentencing is the most at the inception in the hearing of the appeal: The judgment of the Supreme Court in Allauddin clearly states out that an order of sentencing that is passed without giving a reasonable opportunity of being heard to the convict would be vulnerable. It would be fair to add to that rule and say that the vulnerability is the most when the attention of the superior court is drawn to such an error at the very outset of argument upon an appeal or revision so that the appellate or revisional court could expeditiously set aside such an order of sentencing at the threshold and remand the matter back to the trial Judge for a fresh consideration on the aspect of sentencing.

It would do much good to the law of sentencing in India should the public and academics show greater interest in it: Considering that the case of Jayalalithaa has attracted massive public attention, it would be a very dramatic turn of events should the lawyers for Jayalalithaa successfully attack the legality of the sentencing order before the High Court and prevail therein.

Should the order of sentencing be struck down by the High Court, it is highly likely that there will be a political revival of Jayalalithaa and such political revival is only expected to stir a great deal of public debate and academic discussion on the law of sentencing in our country.

Such stimulation would do a great deal of public good to the woefully underdeveloped law of sentencing in our country.

Jayalalithaa’s case could throw up novel challenges to the law of sentencing: Going further, there would be a great deal of challenge thrown to the law of sentencing should the counsel for Jayalalithaa proceed in an unusual direction in the trial court should the matter be remanded to the trial court for a fresh consideration on the aspect of sentencing.

Such as:

Jayalalithaa has in fact, been privileged to occupy the position of the Chief Minister of Tamil Nadu in many of the past 18 years, that is, after the offence in question was committed.

Her supporters have often claimed that her public deeds in these intervening years have benefited the poor and the public in the State of Tamil Nadu to such an extent as to rise above the ordinary discharge of duties as a public servant. For instance, previous media reports indicate that she had initiated a number of public measures by expanding her Government to provide, on a competitive scale, the following services:

1. manufacture, distribution and retailing of water bottles that are priced at a fraction of the market rates so as to appeal to the classes which could not afford it earlier at market rates;

2. establishment and operation of canteens that dispense food and meals at lower rates to the public in stark contrast to the spiraling food and inflation rates;

3. establishment and operation of dispensaries that sell medicines at cost to the poor and needy and

4. provision of cement bags at slightly above cost rates to the economically weaker sections.

Should the lawyers for Jayalalithaa provide evidence to the trial court upon the verifiable and positive impact from the aforesaid schemes to the poor and to the public of that State and further argue that the aforesaid schemes were not a mere ordinary discharge of public functions as a Chief Minister but that such schemes reflected a laudable concern on her part towards the public of Tamil Nadu and to thereby argue that her presence and activity within the broader society is more valuable to the public than her incarceration and that she should therefore, receive a lesser or minimum sentence, the difficulty that the trial judge would be put to would truly be very educational and interesting to watch.

Further, should the lawyers for Jayalalithaa also obtain for the perusal of the trial court, affidavits of recognition from various Ministers of Tamil Nadu and also from the several MLAs of her party to the effect that in terms of initiating programs for the poor and for the benefit of the people of Tamil Nadu, they recognise in her, a heightened ability to propose, initiate and implement such plans with relatively greater administrative efficiency than her peers, the situation might take an even more interesting turn at the trial court.

Such an affidavit of recognition need not necessarily speak to the truth and in order to be treated as a document of some probative value to a court of law. It only needs to be an honest statement of belief and so long as the MLA or the Minister swearing upon the affidavit is honestly unable to recall the name of any other peer politician in Tamil Nadu who could have implemented similar schemes with greater or even comparable administrative efficiency.

Such an affidavit would retain some probative value though the eventual reliance that the trial judge would place upon it in his order of sentencing would be difficult to predict in advance, in view of the highly unsatisfactory state of sentencing law in our country. It is sufficient to note that the aforesaid novel approaches by the lawyers for Jayalalithaa may very well motivate the development of the law of sentencing in a reliable direction by stirring public debate and academic discussion on it.

Public unhappiness v. obligation of a defendant’s counsel: Finally, notwithstanding that the public would strongly want that a corrupt public servant not receive a lesser sentence should he be able to show his record of good public service, the fact remains however, that with the woefully inadequate law on sentencing in India, it would be too early to figure out if the public will have their way here.

At least, the public in the United States haven’t had it that way though the US is far ahead of most countries of the world in punishing its public servants for corruption. Corrupt public servants who are convicted in the United States do obtain some relief for their good public deeds as documented but verifiable and beneficial public deeds are considered by their courts as a ‘mitigating factor’ in regard to sentencing.

With the law on sentencing in India remaining underdeveloped and uncertain, one cannot take much exception to Jayalalithaa’s lawyers canvassing her public deeds to the courts in return for a lesser sentence.

Irrespective of whether Jayalalithaa would succeed or be relieved in court upon a showing of her good public deeds, the expectation remains however, that the law of sentencing in India could receive its impetus thereby to develop further in this country.

Let me end this piece by saying that the Prevention of Corruption Act, 1988 has, of course, largely failed to curb corruption in this country and the reason for such failure should not and cannot be attributed to any march in the law of right of a criminal defendant to a fair trial or to a fair sentencing procedure.

I am a concerned citizen of this country and I do not subscribe to any proposal to mitigate the rigour of the anti-corruption law towards charismatic or popular public servants.

However, I do not consider anything that I have said in this piece to even remotely encourage or embolden the corrupt. If I have, I am undoubtedly wrong in what I have said in this piece.

KV Dhananjay is an advocate of the Supreme Court

Disclosure on personal or professional interest: I have no manner of connection to Jayalalithaa or to her lawyers or to any of the other convict in the said case or to any of the lawyers representing the convict, whether before the trial court or before the High Court. Similarly, I do not have any connection whatsoever to the prosecution in this case. I do not stand to benefit or be deprived of anything should the outcome in the High Court attain any direction whatsoever in the said case. Similarly, I would not stand to benefit or be deprived of anything should the matter, upon remand to the trial court, lead to any manner of outcome whatsoever. The absence of relationship indicated herein also encompasses a complete absence of communication with all such persons. In other words, no person referred to in this paragraph has had any manner of communication with me, directly or indirectly.