Saturday, 7 December 2019

Amma’s acquittal, judicial conundrum and political equations

Updated: May 23, 2015 5:22 pm

Taking the nation by surprise, Justice C.R. Kumaraswamy set aside the special court’s conviction accepting the criminal appeals filed by Jayalali-thaa and others. It took just five minutes for the honourable Judge to pronounce his judgment. The AIADMK headquarters erupted with joy and the party leaders and cadres celebrated the acquittal of their beloved Amma

The Karnataka High Court’s verdict acquitting Jayala-lithaa has sent shockwaves across the country surprising everybody. Even Jayalalithaa and her cohorts would not have expected this, as they had made arrangements for submitting bail petitions immediately at the Supreme Court. While some leniency in the sentence and fine was anticipated, no one had expected that the conviction would be annulled and a clean chit would be given.

Taking the nation by surprise, Justice C.R. Kumaraswamy set aside the special court’s conviction accepting the criminal appeals filed by Jayalalithaa and others. It took just five minutes for the honourable Judge to pronounce his judgment. The AIADMK headquarters erupted with joy and the party leaders and cadres celebrated the acquittal of their beloved Amma.

Curious Route to Amma’s Acquittal

Immediately after the judgment, AIADMK supremo started receiving greetings from political and elite circles. Tamil Nadu Governor Rosaiah and Prime Minister Narendra Modi were among the first few who called and wished her. Central Ministers like Arun Jaitley, Sushma Swaraj and Ravi Shankar Prasad also wished her. Notable political analysts like Cho Ramaswamy and S.Gurumurthy and celebrities like actor Rajnikanth, music maestro Ilayaraja and Bharatanatyam artist Padma Subramaniam conveyed their greetings.

The acquittal has come after a long-drawn legal proceeding for more than 18 years. It all started with Dr.Subramanian Swamy filing a complaint against Jayalalithaa on June 14, 1996. The First Information Report was registered on June 28, 1996. She obtained bail and a Special Court was appointed on April 30, 1997. On June 4, 1997, charge sheet of 88,000 pages with 18,000 documents was filed before Special Judge Anbazhagan. After coming back to power in 2001, she managed to close the other cases filed by the DMK regime by fast tracking them. In the disproportionate assets case too, she used all the loopholes in the law to delay the proceedings and many witnesses turned hostile.

So, fearing the same fate for this case too, the DMK approached the Supreme Court. On November 18, 2003, the Supreme Court heard the petition filed by DMK leader Anbazhagan praying for shifting the case to any other state from Tamil Nadu, and granted his prayer by shifting the proceedings to Karnataka. Subsequently, Bengaluru Special Court started hearing the case from February 14, 2004 onwards and Karnataka government appointed B.V. Acharya as the Special Public Prosecutor. Meanwhile, she made several attempts at the Supreme Court for interim relief, but in vain. Then between 2006 and 2011 during the DMK regime, the case moved at snail’s pace.

In October and November 2011, Jayalalithaa appeared in person and answered 1,339 questions and other three accused also appeared and answered questions. In the meantime, a private complaint was also lodged against B.V.Acharya before the Special Lokayukta Court, which ordered investigations on it. However, Acharya filed a criminal petition saying some vested interests were after him to make him quit the post of SPP, and got the private complaint quashed. Also interestingly, intense pressure was built upon him by the BJP-led Karnataka government to resign either as Advocate General or Special Public Prosecutor. Ultimately, Acharya resigned as SPP on October 12, 2012.

On February 2, 2013, Karnataka’s BJP government appointed G.Bhavani Singh as Special Public Prosecutor. However, the Congress-led government, which came into being after defeating the BJP in the subsequent Assembly elections, withdrew Bhavani Singh as SPP on August 26, 2013, which was challenged by Jayalalithaa in the Supreme Court. As the hearing was going on, the Karnataka government gave an undertaking that it would consult the Chief Justice of Karnataka High Court and take a decision. On September 16, 2013, Karnataka government issued a notification again withdrawing Bhavani Singh citing its consultation with the Chief Justice. However, the Supreme Court quashed the notification on September 30, 2013.

On September 27, 2014, Special Court Judge Justice John Michael Cunha convicted Jayalalithaa and her three associates and slapped a sentence of four years. He also slapped a fine of Rs.100 crore on Jayalalitha and Rs.10 crore on others. Her appeal and bail application was refused by the Karnataka High Court on October 7. Justice AV Chandrashekhara, in his order, said that there “are no grounds” to give bail to the former Tamil Nadu Chief Minister and observed that corruption amounts to “violation of human rights” and leads to economic imbalance.

On October 17, 2014, the Supreme Court Bench headed by CJI D.L.Dattu granted conditional bail to Jayalalithaa and the other three directing them to file the bail petition within two months ending December 18, 2014, and asked the Karnataka High Court to complete the trial within three months ending March 2015. On January 1, 2015, C.R.Kumaraswamy was appointed as Special Judge by the Karnataka Chief Justice D.H.Wagela.

On January 7, 2015, DMK leader Anbazhagan submitted before Justice Kumaraswamy that Bhavani Singh cannot appear as SPP, as he was not appointed by the Karnataka Government as per the provisions of the Code of Criminal Procedure (Cr.PC) to represent the prosecution– Directorate of Vigilance and Anti-Corruption. Bhavani Singh, on his part, contended that he was appointed by the Tamil Nadu (read AIADMK) government to represent the DVAC. Curiously, the Karnataka HC contended that the special bench was constituted to hear only the appeals arising out of the trial court’s order and asked Anbazhagan to approach the appropriate forum.

Anbazhagan in turn approached the Supreme Court on February 26, 2015. Two-Judge Bench of the Supreme Court gave a split verdict on his petition and directed the petition to a three-judge bench. It also gave the liberty to HC Judge Kumaraswamy to use his own discretion to deliver the judgment, which he had already reserved. Subsequently, on April 27, 2015, the three-judge bench of the SC struck down the appointment of Bhavani Singh as SPP. But, it also contended that there was no need for a fresh hearing of the case again, reasoning that the proceedings so far held cannot be “abandoned solely because there was no proper assistance” from the prosecution. The SC Bench also directed the Karnataka government to file its written submissions as prosecuting agency before the High Court by April 28, 2015, and gave time till May 12 for the HC to deliver the judgment. Based on the SC’s direction, the Karnataka government appointed B.V.Acharya again as SPP.

Finally on May 11, 2015, the High Court set aside the Special Judge’s verdict, accepted the appeals of the four accused and acquitted them of all charges giving them a clean chit.

The Judicial Conundrum

The verdict delivered by the Karnataka High Court has sent shockwaves across the country mainly because of the fact that the judgment given by the Special Court Judge Justice Cunha was perceived by legal luminaries as well as the public as a meticulously articulated one. However, the HC verdict has been accepted by and large and even the opposition parties in Tamil Nadu have resigned to the fact that Jayalalithaa would become stronger after this.

While the two complainants Dr.Swamy and DMK leader Anbazhagan have confirmed that they would go for an appeal against the verdict, the Karnataka government has not come out openly. However, the SPP B.V.Acharya made an important point that the entire appeal proceedings were conducted without making Karnataka State a party, though it was a necessary legal requirement. He also said that no prosecutors authorized by Karnataka government were present during the oral arguments for two months, while the counsels for the accused were allowed to make oral arguments for the entire period. His opinions must be seen in the context of the Supreme Court’s striking down the appointment of Bhavani Singh as SPP by Tamil Nadu (AIADMK) government. Another significant point made by Acharya was that he was given only a day’s time to file a written statement and no time was given for crucial oral arguments. Many advocates are of the opinion that this act of conducting a trial without an SPP would become a bad precedent in future.

It is pertinent to note that the Supreme Court, while granting bail to Jayalalithaa and her cohorts in October 2014, did not direct the Karnataka government to appoint an SPP. Interestingly, the Karnataka government also remained silent on the issue, allowing Tamil Nadu government’s appointee Bhavani Singh to appear as prosecutor.

Even while striking down the appointment of Bhavani Singh, the Supreme Court said that there was no need for a retrial again with the newly appointed SPP. It is mysterious that the Supreme Court asked the High Court to accept and take into account the arguments made by the very same prosecutor, whose appointment it had struck down terming it illegal. When the appointment itself is illegal, then how do the appointee’s arguments and submissions become legally accepted?

Apart from that, the Supreme Court also asked the HC Judge to be vigilant about the “corroding effect of corruption” and the “gravity of the offence” and suggested him to make a “complete and comprehensive evaluation and appreciation of the evidence in its entirety before rendering his judgment” and advised him to “dispassionately render a judgment which is objectively and resolutely expressed”. The Supreme Court had to say all this because it had somehow felt that there was no need for a fresh hearing with a new public prosecutor. But now, the opposition doubts if the HC has really acted as per the suggestion and advises of the Supreme Court. Many lawyers are of the opinion that the SC should have allowed a fresh hearing with a new SPP. “Having prolonged for more than 18 years, what is the harm in waiting for another three months?” they ask.

While the High Court was hearing the case on a daily basis as directed by the Supreme Court, the media was also reporting the updates on almost a daily basis. During the course of the trial, the Judge reportedly asked many tough and inconvenient questions to the accused parties. So, based on the daily updates of the media, one could only expect that the HC would uphold the Special Court’s verdict. This is also a reason for the unbelievable shock stirred by the acquittal. Referring to Justice Kumaraswamy’s observation during the trial that the Special Judge tied around 150 knots tightly against the accused to prove their culpability, DMK President Karunanidhi has asked whether the said knots have been released by the accused.

Meanwhile, a day after the verdict, the DMK lawyers have found a huge error in the arithmetical calculations done by Justice Kumaraswamy. They have detailed the media that while taking the loans as lawful income of the accused, the total figure was wrongly shown as Rs. 24, 17, 31, 274/- while the actual figure was Rs.10, 67, 31, 274/- which is less by Rs. 13, 50, 00, 000/- . So, at the end of the calculations when the total income is subtracted from the total assets, the disproportionate income comes to Rs,16, 32, 36, 812/- which is actually 76.75 per cent much above the so-called permissible limit of 10 per cent.

As the error has made the entire judgment meaningless, the opposition parties have started raising their voice again. DMK has made it clear again that it would go for an appeal at the earliest. DMDK President actor Vijayakanth, MDMK President Vaiko, PMK President Dr.Ramadas and Congress President Elangovan have all asked Karnataka government to go for an appeal. Dr.Swamy, on his part, has also tweeted, “In my appeal to SC in JJ DA Case, I will prove that the KHC judgment is a ‘Tragedy of Arithmetic Errors’.”

Even B.V.Acharya has said that he has noted the calculation mistakes and that they would serve as excellent points if SC appeal is decided. The DMK may also approach the SC praying for staying the HC verdict and Jayalalithaa’s swearing in as Chief Minister again. So, as things stand, it looks as though the HC has made a costly error and the AIADMK supremo may find it difficult again to prove that she had not indulged in corruption.

Political Equations

The sympathy wave, which engulfed the state when Jayalalithaa was convicted by the Special Court, remained throughout the period of her incarceration and it continued even after she managed to get bail. Thousands of cadres who thronged the temples and worshipping places praying for her release on bail, continued their prayers and other elaborate pujas for her acquittal too. Now after her acquittal she has become stronger and she is expected to be sworn in as CM within a week or so.

On the contrary, the already weakened opposition parties have not made any efforts to set their houses in order. Although Jayalalithaa has not been active since September 2014, the opposition parties have not made any effort to cash in on her absence from the political arena. Instead they were indulging in criticising the central government. None of the parties have focused on the absolute lack of governance in the state for the last eight months. While the governance under Chief Minister O.Panneerselvam has come to a standstill with complete policy paralysis, also riddled with corruption, none of the opposition parties have made an issue out of it except releasing press statements.

Even by a cursory look at the governance since May 2011, one can easily find that it is only on paper and nothing remarkable has happened in reality. All the schemes regarding infrastructure, power and other developmental projects that have been mentioned under Section 110 of the Assembly Rules, remain only on paper and nothing has moved. Only those wastages of taxpayers’ money branded as “Amma” welfare schemes have been the focus of the government. Even such welfare schemes have not been administered and executed properly. Law and order is worsening day by day with increasing crime rates. Jihadists are striking at will with half a dozen murders and scores of assaults in the last four years. Maoists are also on the prowl as evidenced by the recent media reports.

But unfortunately, the opposition parties have not taken any initiative to act against this government. Even BJP is found lagging in almost all respects. The party made a huge noise about its membership drive, but secured just 2000 votes in the Srirangam by-election. The anger on DMK is so much that it hides the AIADMK’s misrule from people’s eyes. And people are also not happy about the activities of other opposition parties.

Though the people have a good opinion about Prime Minister Narendra Modi and the central government, they do not see any of the local BJP leaders as impressive and attractive. Although the BJP government at the Centre rolls out good schemes, one after another, for the welfare of the people and development of the nation, the Tamil Nadu BJP has not chalked out a clear-cut plan to take those schemes to the people. The party’s public relations and propaganda machinery is found wanting.

After sweeping the 2011 assembly elections, 2014 Parliament elections and the local bodies thereafter including the Srirangam by-election, Jayalalithaa remains indisputably stronger with the additional value of the removal of the corruption taint due to the acquittal. While the DMK, Congress, PMK and DMDK preferred to criticise the judgment and demanding the Karnataka government to go for an appeal, BJP and TMC have welcomed her acquittal and greeted her. Interestingly, after the finding of the wrong arithmetical calculations in the judgment, MDMK President Vaiko, who had earlier welcomed her acquittal, has also asked the Karnataka government to go for an appeal.

As Prime Minister Narendra Modi, Finance Minister Arun Jaitley, External Affairs Minister Sushma Swaraj, Telecom Minister Ravi Shankar Prasad, State President Thamizhisai Saundarrajan, State leader H.Raja and RSS ideologue Gurumurthy have greeted her, there is speculation going on in the political and media circles that BJP may ally with AIADMK for the forthcoming assembly elections. In fact, this speculation started doing the rounds right from the day Arun Jaitley met Jayalalithaa at her Poes Garden residence in January. In fact, the meeting between the two also cast aspersions on BJP in the sense that the party could interfere with the legal process of Jayalalithaa’s disproportionate assets case. As if to make matters worse for the party, State President Thamizhisai Soundarrajan and National Secretary H.Raja told journalists that BJP had not interfered with the legal process.

As things stand now, the opposition parties seem to be on the same line against Jayalalithaa. Recently, DMDK leader Vijayakanth visited all of them and took them as a team to meet Prime Minister Modi on the issue of Karnataka’s attempt to build a dam across Cauvery at Mekadatu . However, the party leaders refrained from making any statements on alliances. The DMK and Congress are getting closer. Communists and Dalit outfit Viduthalai Chiruthaikal Katchi may also join them, which could form an alliance led by DMK.

Though G.K.Vasan and Vijayakanth have a good relationship, actor Vijayakanth still remains within NDA. So, G.K.Vasan would prefer to go with AIADMK, as evidenced by his recent statements on Jayalalithaa’s acquittal. As far as PMK and MDMK are concerned, they cannot afford to remain alone and hence, they may choose any one of the available alliances depending upon the circumstances.

Jayalalithaa is clearly aware that the opposition is listless and even directionless. So, to capitalise on the present situation and people’s sentiments, she may recommend for the dissolution of the assembly forcing the election on the people sometime in December. Meanwhile, she may announce a few more welfare schemes apart from speeding up the pending developmental projects. She would most probably prefer to go it alone and face the elections. However, if Karnataka goes for an appeal against her acquittal, she would decide to crush both DMK and Congress. To achieve that, she would go all out and rope in TMC, MDMK, PMK and the Communists too. Christian and Muslim establishments also would pressurise her not to have any tie up with BJP. Without risking minority votes, she would play it safe with BJP by committing her support in Rajya Sabha sans an alliance in the state.

That will leave DMK and Congress on one side of the opposition and BJP and DMDK on the other side of the opposition. Both the alliances would draw a blank or at the most a dozen seats each. Unless the opposition unites and forms a grand alliance, Jayalalithaa cannot be challenged.

Meanwhile the appeal in the disproportionate assets case would take its own time at the Supreme Court as the law will also take its own course.

By B R Haran

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