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The long and winding road to justice

By: Sriram Panchu | FEBRUARY 15, 2017(ref: thehindu.com)

It has taken over two decades, but the conviction of V.K. Sasikala has come not a moment too soon. Now the Governor has to ensure that the MLAs are able to choose their next leader without fear or coercion

Finally, the curtain has come down on one of India’s most high-profile corruption cases. Twenty-one years after the case began, State Of Karnataka v. Selvi J.Jayalalithaa & Others has ended with the conviction of all the accused under the Prevention of Corruption Act. Two judges of the Supreme Court, each authoring a judgment, allowed the appeal of the State of Karnataka against the Karnataka High Court judgment and restored the judgment of the trial judge, John Michael D’Cunha. The sentence of the main accused, former Tamil Nadu Chief Minister Jayalalithaa, abates since she is no longer alive. V.K. Sasikala must now go to prison for four years, and for six years more she cannot stand for election. With two strokes of the pen, the political landscape of Tamil Nadu has been drastically altered. With the finality of this ruling, the long arm of the law has caught up with the accused, but it also needs to be noted that it took a long and meandering course to do so.

From the beginning
In 1996, Subramanian Swamy filed a criminal complaint under the Act, alleging accumulation of vast wealth through corrupt acts by the erstwhile Chief Minister abetted by her close aide. What is required under Section 13(1)(e) is for the prosecution to prove that the assets of the public servant are disproportionate to his or her known sources of income. Once done, there is a presumption of guilt. It is a provision designed to combat corruption by public servants, and for guilt or innocence to be quickly established.

In 2000, it took three days for Special Court to assess Jayalalithaa-Sasikala’s jewels
 
Except that in this case it took 18 years for the judgment of the trial court to be handed down. A battery of ingenious lawyers filed a steady stream of jurisdictional objections and interim applications on technical and procedural aspects, and then spun them out through appeals to the High Court and Supreme Court. Some were remarkably innovative; for example, the plea that Ms. Sasikala did not understand English and therefore the hundreds of pages of documents should be translated into Tamil. It took several years to resolve this issue, and then some more time before the documents were translated. (They were probably never referred to again.) One thing this case demonstrates is the failure of the courts to speedily dispose of such petitions and ensure that these cases are fast-tracked, which is what proper governance demands.

The case was transferred to Karnataka following attempts by prosecutors in Tamil Nadu to oblige the principal accused, who by this time was back in power as Chief Minister. Two appointments made there proved crucial — the no-nonsense trial judge, Judge D’Cunha, and a seasoned prosecutor, the eminent lawyer B.V. Acharya. In September 2014, the former rendered the judgment, 18 years after inception of the case. He found that during the period 1991-1996, the extent of disproportionate wealth was to the tune of ₹58 crore. The main accused was sentenced to four years of imprisonment and asked to pay a fine of ₹100 crore. Ms. Sasikala, guilty of abetment, also got a four-year term with a fine of ₹10 crore.

An appeal was filed in the Karnataka High Court. Bail was denied and the accused moved the Supreme Court. Chief Justice H.L. Dattu granted bail. But curiously, he directed the disposal of the appeal by the High Court in three months. He did so without any request from the accused, and gave no reason. The last thing an accused wants is an early trial, and the first thing a convicted leader wants is an early hearing of the appeal. The accused in this case benefited on both counts. This capsulated time period would deprive the prosecution of adequate time to present its arguments.

Then, an acquittal
In May 2015, Justice C.R. Kumaraswamy of the Karnataka High Court acquitted all the accused. A cursory reading of his judgment shows up its errors. He sharply reduced the value of assets. He steeply increased the income, inflating the amount of loans taken. He brought down the disproportionate wealth to about ₹2.8 crore. Even then, there was an 8.12% gap which he sought to overcome by applying a 1976 judgment of the Supreme Court in Krishnanand Agnihotri v. State of Madhya Pradesh. There the disproportionate amount was only ₹11,000, which was less than 10% of the total income, and the court said that this small difference could be condoned. Justice Kumaraswamy did not explain how that could become the norm for a case such as this. It was a judgment crying out for reversal.

Fortunately, that has now been done. Justice P.C. Ghose in his judgment running into more than 500 pages has examined every facet of the case in detail. He lauded the trial court for being “meticulous, sensitive, vigilant and judicious in appraisal”; by contrast, he deplored the failure of the High Court “to appreciate the evidence in the correct legal context”. With regard to the loans, he held that the High Court had premised its finding on “an inflated and patently incorrect figure”. Justice Ghose delved in detail into all the loans, the gifts, the valuation of the properties, other incomes and the marriage expenses of Ms. Sasikala’s nephew, and for each one of these upheld the finding of the trial court. The High Court’s finding on the percentage of disproportionate assets being 8.12% was “based on completely wrong reading of the evidence on record compounded by incorrect arithmetical calculations”. The trial court’s judgment was restored in toto. The decision of the Supreme Court in Krishnanand Agnihotri was held to have no application to the facts of this case. He noticed a close connection between Jayalalithaa and Ms. Sasikala and their collaboration in many transactions, including purchases of large properties and opening of about 50 bank accounts, and held the latter to be guilty of abetment and conspiracy. Although the appeal against Jayalalithaa stood abated, Ms. Sasikala’s conviction and sentence and that of her relatives, Dinakaran and Ilavarasi, stood restored.

Justice Amitava Roy held that the facts of the case “demonstrate a deep-rooted conspiratorial design to amass vast assets without any compunction”. He further held that judicial adjudication must be responsible, interpretation of law has to be purposive and artful defences must be cast aside. “A collective, committed and courageous turnaround is… imperative… Every citizen has to be a partner in this sacrosanct mission.”

Not a moment too soon
With that this case rests. In the circumstances, it is a timely judgment. For a week there has been a clamour to appoint Ms. Sasikala as the Chief Minister, claiming the support of an overwhelming number of MLAs. Governor Ch. Vidyasagar Rao resisted, doubtless seeking to await the judgment. He was criticised in many quarters for not following proper procedure. On the contrary, he deserves thanks for having spared the State the ignominy of having a Chief Minister moving from the Secretariat at Fort St. George in Chennai to Central Jail in Bengaluru in the space of a week.

One more thing the Governor needs to do is to ensure that the MLAs of the Tamil Nadu Assembly are able to choose their leader without fear or coercion. Given the swirling allegations of detention and captivity of the MLAs by Ms. Sasikala’s men, it would be a subversion of the electoral and political process if their support were to be obtained by such means. It remains to be seen, however, if the Governor needs to exert himself in the matter; the Supreme Court judgment may have a Vardah effect on some political fortunes. Whatever that outcome may be, this emphatic judgment is to be welcomed as another assertion of the rule of law, with all its majesty and might. Be you ever so high (and aim even higher), the law is above you.

Sriram Panchu is a Senior Advocate in High Court of Madras. He can be contacted at srirampanchu@gmail.com.

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