New Delhi:
Before Kanimozhi entered court this morning, she seemed relaxed and cheerful, as she sat with her mother, husband and young son. The odds were in favour of her getting bail after more than five months in prison for her alleged role in the telecom scam. The CBI, which had contested three earlier bail applications for her, had said a few weeks ago that this time around, it has no objections to her leaving prison. The Supreme Court, which had refused her bail in June, had advised her to try again after charges were framed against her - which happened on October 22. And a section of the Indian law (437 of the Criminal Procedure Code) suggests bail be considered for women, under-16s, and sick people - a clause that her lawyers had invoked.
The optimism allowed by those factors could be why the young MP, who has shown a preternatural calm during her hundreds of appearances in court over the last few months, broke down when Judge OP Saini announced that he was refusing bail to her and seven others. In his order, the judge who is handling the trial for the telecom scam was scathing of Kanimozhi's lawyers for trying to use her gender as grounds for her bail. "Accused Kanimozhi belongs to upper echelons of the society and is also a Member of Parliament," he said. "By no stretch of imagination Kanimozhi can be said to be suffering from any discrimination on the grounds of being a woman."
(Read: Charges against Kanimozhi)Senior leaders from her party, the DMK, were visibly shocked when they heard the verdict. TR Baalu and TKS Elangovan were seen holding her. In Chennai, her father, M Karunanidhi, who heads the DMK, said he was upset with today's development but that his alliance with the Congress remains intact, and the DMK will not pull out of the UPA coalition at the Centre.
Kanimozhi has been in jail since May 20 for the telecom swindle, estimated to be India's largest scam. The CBI has said in court that it cost the country Rs 30,000 crore. The government's auditor places the price tag at Rs 1.76 lakh crore. (
Read: What is 2G scam?)
Judge OP Saini's decision has been criticised by a series of legal experts, who say that "bail and not jail" should be the guiding principle in cases like this where the prosecuting agency has said it does not require the accused to stay in jail. Of the 14 people arrested for the telecom scam, Kanimozhi heads a group of five whose request for bail has not been objected to by the CBI. The Supreme Court earlier this week asked why the CBI had chosen to differentiate among those in prison by singling out a few whose bail seemed agreeable. The remark was seen as a criticism.
(See court order on Kanimozhi, others)
In his order, which runs into 76 pages, Judge Saini says however that he was not influenced by any external factors in his decision. In severe language that underscores the scale of the telecom scam and refers to the A-list calibre of its alleged participants, Judge Saini explains his decision. "The persons involved in such offences, particularly those who continue to reap the benefits of the crime committed by them, do not deserve any indulgence... the court cannot be oblivious to the fact that such offences are preceded by cool, calculated and deliberate design with an eye on personal gains."
(Read: What the judge said)He adds, "If a person knows that even after misappropriating huge public funds, he can come out on bail after spending a few months in jail, and thereafter he can continue to enjoy the ill-gotten wealth obtained by illegal means, that would only encourage many others to commit similar crimes in the belief that even If they have to spend a few months in jail, they can lead lavish and comfortable lives thereafter, utilizing the public funds acquired by them... a strong message therefore needs to be sent to these white-collared criminals and those who are waiting in the wings, that in the long run, it does not pay to be on the wrong side of the law."
Kanimozhi lawyers said they will appeal against today's verdict in the Delhi High Court. They can take hope from the remarks of Justice RS Sodhi, who retired as the Chief Justice of that court. "In all likelihood, the High Court will have a broader vision and not be as myopic as the judge has been," he said. Raju Ramachandran, a well-respected senior advocate, said, "Denial of bail should not become a punishment by itself and let's also remember that denial of bail prejudices the right to fair trial."
The trial for the telecom scam begins on November 11 for the 14 people, who have all been accused of criminal conspiracy. A Raja, also from the DMK and also in jail, is the only one who has not applied for bail - he says he will leave jail only after he proves in court that the scam he is being held accountable for is fictitious.
(2G scam: Charges against Raja, others)Along with Kanimozhi, those who were denied bail today are Bollywood filmmaker Karim Morani, Kusegaon Fruits & Vegetables directors Rajiv Aggarwal and Asif Balwa, Swan Telecom promoter Shahid Balwa, former bureaucrats RK Chandolia and Siddharth Behura, and Sharath Kumar who is the Managing Director of Kalaignar TV, which he co-owns with Kanimozhi and her stepmother.
Mr Raja is accused of criminal breach of trust by a public servant; so is Siddharth Behura, who was Telecom Secretary. The 12 others in jail have been accused of conspiring to cause breach of trust by a public servant. Kanimozhi's alleged role rests on the charge that she allowed Kalaignar TV in Chennai to serve as the resting place for a 214-crore kickback sent to Mr Raja by Swan Telecom.
Her lawyers have argued in court that she served only briefly as a Director of Kalaignar TV; and that the money from Swan was in any case a loan that was returned to Swan with interest, and that since the CBI has collected all relevant documents and no witness has testified against her, she can neither tamper with evidence nor try to influence testimony. In court, however, the CBI has described Kanimozhi as "the active brain" behind Kalaignar TV.
The CBI says that in 2008, Mr Raja misused his office as Telecom Minister, to twist official policy and rules in who was entitled to mobile network licenses and spectrum, and at what price. He allegedly showed undue favour to three companies - Swan, Unitech Wireless, and Reliance Telecom. Their senior-most executives are in prison. A series of calculations by different experts and departments find that the telecom scam is India's greatest swindle. The CBI has estimated the losses caused to the country to be in the range of Rs 30,000 crore.