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Trial, errors and judgment

“Jayalalithaa may play have a political role for a long time to come, but she will always remain the first incumbent Chief Minister to go to jail.” Picture shows her supporters rejoicing after she was acquitted by the Karnataka High Court.

“Jayalalithaa may play have a political role for a long time to come, but she will always remain the first incumbent Chief Minister to go to jail.” Picture shows her supporters rejoicing after she was acquitted by the Karnataka High Court.  

After a long and convoluted progress through the courts, Ms. Jayalalithaa has finally been acquitted by the High Court. But this might not be the end of the morality play, with another appeal looking likely.

“Money is not important, access to it and misuse of it is,” said Bharatiya Janata Party leader and Jayalalithaa’s foe-turned-friend-turned-foe, Subramanian Swamy, in his written submissions to the Karnataka High Court. This was with regard to the former Tamil Nadu Chief Minister’s appeal against conviction for possession of assets disproportionate to her income. The 919-page judgment of the Karnataka High Court tested precisely this proposition.

Ms. Jayalalithaa’s conviction by the Special Court, under Section 13 (1) (e) of the Prevention of Corruption Act 1988, had all the elements of a potboiler — a popular mother figure, an old accusation from an impetuous past, and a judgment that could be delayed no longer — but with even more twists and turns than a movie script.

In 1995, when Ms. Jayalalithaa attended the lavish wedding of her now disowned foster son V.N. Sudhakaran, she and her other co-accused in the case, Sasikala, would have hardly envisioned what would follow. Public revulsion at her unaccountable ostentation turned into electoral fury in 1996. Ms. Jayalalithaa lost power and was arrested in several corruption cases.

Section 13 (1) (e) of the Prevention of Corruption Act of 1988 states: “A public servant is said to commit the offence of criminal misconduct, if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.” It further explains “known sources of income” as “income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.” What this means is that at any stage, a public servant should be able to prove that assets owned or controlled by him or her are attributable to proven, lawful sources.

On a Re. 1 salary

When Ms. Jayalalithaa was Chief Minister for the first time, between 1991 and 1996, she took a monthly salary of Re. 1 only. Her career as actor had ended in 1980, and seemed to yield no great savings or assets beyond her house in Poes Garden in Chennai. Sasikala and her family were accused of possessing property on Ms. Jayalalithaa’s behalf.

A first-term Chief Minister often has no idea of the job requirements. Associates need to be strictly warned that proximity to powerful figures cannot turn familiarity into a revenue model. But a lonely prima donna exalted to an empress may perhaps be forgiven for indulging a favourite. However, when the indulgence was extended to complicity with a whole family and tribe, it made a case for the prosecution. The essential premise of the charge laid before the trial court was that it was all for one and one for all.

Thus, assets of several companies in which Ms. Jayalalithaa, along with Sasikala and her relatives, was a personal stakeholder, ended up being attributed in the trial court judgment to Jayalalithaa. They could not be accounted for from her known sources of income. It was urged that assets of around Rs. 3 crore in 1991 could not legitimately metamorphose into Rs. 66 crore in 1996, even after accounting for inflation in a newly liberalised economy.

Added to the land and property assets was the mind-boggling figure of 12,000 saris, 28 kg of gold and 800 kg of silver found in Jayalalithaa’s Poes Garden residence. Explaining these against a slender known income made the case a matter of defendable accounting. An auditor must be a watchdog and not a bloodhound, ruled the House of Lords in a gentler century. But not all the Queen’s accountants and all the Queen’s counsel could, in the Special Court, legally laugh away the sheer disproportion demonstrated by the prosecution.

From her first arrest on, Ms. Jayalalithaa has vigorously contested all the cases against her. Her political fortunes turned in 2001 when she led her party to victory despite the pending corruption cases. Her return to power began to reflect in the special court in Chennai. Several witnesses turned hostile, and the prosecutor seemed to be going through the motions of a trial. An acquittal for lack of evidence appeared imminent.

At this stage, the Dravida Munnettra Kazhagam’s senior-most leader K. Anbazhagan moved the Supreme Court, saying a fair trial of the Chief Minister was not possible in Tamil Nadu. The court agreed and transferred the trial to Karnataka. It also directed the appointment of a Special Public Prosecutor by the Karnataka government, who would be approved by the High Court. An expeditious trial was ordered. One of Karnataka’s most respected lawyers, B.V. Acharya, was persuaded to prosecute, and the case commenced. However, a whole host of issues was litigated from time to time by one or the other accused. Delay is a known defence tactic. The defence team kept up a slew of dilatory motions. The ordered speedy trial was dragged and litigated at the Supreme Court at every stage. Five different special judges heard the case over 18 years.

Lost steam

Curiously, after Ms. Jayalalithaa lost power again in 2006, the prosecution itself seemed to lack the vigour to pursue the case. In 2010, ahead of the Assembly polls of 2011, the case again picked up steam. A second series of interim motions and legal manoeuvring ensued. The process also later led to the resignation of Mr. Acharya, who had brought the case to near fruition. He was replaced by Mr. Bhavani Singh, who appeared to command little praise and less love. Into this background stepped Justice Michael D’Cunha as the last trial judge, with a reputation for thoroughness and probity. In September 2014, Jayalalithaa and her associates were convicted. The trial court held that most of the assets were to be taken as held by the accused personally or on her behalf.

Ms. Jayalalithaa appealed immediately, but hearing on the admission and bail was delayed. Bail was denied by the High Court, but the Supreme Court in appeal granted it after 20 days of incarceration. The Supreme Court also made an expeditious disposal of the appeal a condition of the bail, thus eliminating any dilatory tactics by the defence.

The hearing of the appeals began again in January this year and was concluded by mid-March. An issue then arose about whether the Special Public Prosecutor Bhavani Singh had been properly appointed to conduct the appeal. Mr. Anbazhagan again approached the Supreme Court, seeking a fresh hearing of the appeal, with another public prosecutor being specifically authorised. With two judges differing on the issue, the matter went to a bench of three other judges, who finally ruled that Bhavani Singh had been improperly appointed. The court saw no need for a re-hearing of the appeal, but allowed all parties to make written submissions, which the appeals court would consider with the evidence.

The judgment

The result of all this is the compendious High Court judgment — exhaustive and also thoroughly exhausting. The reasoning can only be discerned from the last 150 pages. Each transaction has been analysed; each explanation considered and ruled on. The expenditure on the wedding is not attributed to Ms. Jayalalithaa alone, since she was on the groom’s side of the event; the bride’s side of the family, including the late actor Sivaji Ganeshan, are seen to have contributed to it. Loans taken by Ms. Jayalalithaa to acquire property have also been considered as reducing the disproportion in the assets. A detailed calculation of her income and assets in tabular form was considered, and the High Court concluded that the property was acquired from lawful sources. The footwear and apparel were also not seriously taken into account, as the prosecution had failed to segregate them according to their individual users, given that there were four people in the house. Overall, the High Court has entertained reasonable doubt and held that the prosecution case is not proven.

But the story is not over; the appeal to the Supreme Court remains. Ms. Jayalalithaa may play a political role for a long time to come, but she will always remain the first incumbent Chief Minister to go to jail. That may have been a fitting climax to a morality play, but Indian politics is not always about morality.

(Sanjay Hegde is a senior advocate of the Supreme Court .)

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Printable version | Apr 4, 2020 2:46:48 AM | https://www.thehindu.com/opinion/op-ed/sanjay-hegde-on-jayalalithaas-acquittal-trial-errors-and-judgment/article7194520.ece

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