All or nothing for Amma: Appeal hearing in Jayalalithaa's DA case to begin today
It is do or die for Jayalalithaa, all powerful chief of the AIADMK, five time Chief Minister of Tamil Nadu and a leader who holds enormous sway over the electorate.
The countdown is on. With the Supreme Court on Monday morning posting the hearing on a Karnataka government appeal in Tamil Nadu Chief Minister Jayalalithaa’s disproportionate assets case to 23 November, a nervous wait begins for the southern political bigwig.
An appeal against her acquittal by the Karnataka High Court in a Rs 66.5 crore disproportionate assets case will be heard daily over three days by a two-judge bench of the Supreme Court, with the next hearing scheduled for 23 November. The Karnataka government had asked for 6 weeks’ time earlier this month to prepare a response to the defence’s affidavit.
It is a do or die situation for Jayalalithaa, the all powerful chief of the AIADMK, five time Chief Minister of Tamil Nadu and a leader who holds enormous sway over the electorate. If the apex court reverses the acquittal of the Karnataka High Court, Jayalalithaa stands to lose all – the Chief Minister’s chair, her MLA’s post and may also need to see the insides of a jail once again. Worse, she might not be able to contest the 2016 state elections. If she wins the case, she wins all, trampling her opposition parties to likely victory in 2016.
The case against Jayalalithaa dates back to 19 years ago, when the then DMK government initiated a probe into her wealth and assets during her tenure as Chief Minister between 1991 and 1996. A prolonged legal battle later, with the defence coming under heavy criticism from the Supreme Court for delaying proceedings, Judge Michael Cunha of the Special Court in Karnataka delivered a verdict in September 2014, finding Jayalalithaa guilty of holding disproportionate assets and corruption. She was handed a four year jail sentence and slapped with a Rs 100 crore fine.
Jayalalithaa spent 21 days in jail, was forced to resign as Chief Minister and came out on bail citing ill-health. A self-imposed exile followed where she confined herself to her Poes Garden home for the next eight months, re-emerging only after the Karnataka High Court exonerated her of all charges.
In a response filed before the Supreme Court on 24 August, Jayalalithaa gives a clue as to what her defence will hinge on. Three main points emerge from her 46-page affidavit filed in response to the Special Leave Petition filed by the Karnataka government in June this year, seeking to overturn the judgment of the Karnataka High Court delivering an acquittal earlier in May.
Defence 01: Miscalculation charge incorrect
A judgment that “lacks reasoning, is not logical and is cryptic” – these are the words used by the prosecution to trash the acquittal rendered to Jayalalithaa and three others by the Karnataka HC. The key argument of the prosecution rests on the charge of gross miscalculation of assets and income and duplication of figures, which had allowed the Karnataka HC to “erroneously” come to the conclusion that Jayalalithaa and others held wealth disproportionate to their income only within a permissible margin of 10%.
“A totalling mistake has resulted in acquittal instead of an order confirming conviction,” says the prosecution, going on to argue that the actual total works out to disproportionate assets of 76.7%, rather than the 8.12% calculated by the Karnataka High Court on Page 852 of the judgment. The prosecution further points out duplication in loan amounts by the High Court, which they say, resulted in boosting the income of the four accused, thereby allowing their acquittal.
Jayalalithaa’s response to these charges is to maintain that the calculations of the Karnataka High Court are correct. She seeks to clarify the numbers taken into consideration by the High Court judge and thereby the logic in the calculation. Interestingly, she adds in her affidavit, “Even assuming without admitting that there are certain mistake in calculation, if the consequential reliefs are granted based on the findings rendered, it is submitted that there will not be any change in the judgment of acquittal,” she says.
“There are glaring errors in calculations, also categorisation of assets, a court will need to look at this closely,” says Delhi-based lawyer Karuna Nundy..
“She is supporting the calculations of the Karnataka High Court and saying that it is not incorrect in her affidavit,” explains Vikram Hegde, a Delhi-based advocate. “But that does not make logical sense. The defence may not want to elaborate their strategy in the affidavit. They may want to save it for arguments. It is best to wait and watch because we do not know what their strategy is,” he says.
Defence 02: Conspiracy charge a “myth”
Jayalalithaa, in her affidavit before the apex court, denies any conspiracy between herself and the three other accused, her close confidante Sasikala and Sasikala’s relatives VN Sudhakaran and Ilavarasi.
The petitioners, she says, “have not made out any tenable grounds as to how these findings suffer from any error of law” – meaning that the Karnataka High Court’s order stating that no conspiracy was proved between the four accused, was justified.
The prosecution, in its petition has attacked the judgment of the Karnataka High Court on this point by arguing that the trial court’s finding of a criminal conspiracy is correct. The prosecution states that by the simple act of taking the assets of all four accused together, the Karnataka High Court itself has implied criminal conspiracy. “In fact, impliedly the learned Judge has accepted the case of the Prosecution and has treated the assets and liabilities of all the accused together as one unit and this should be sufficient to hold that the charge of conspiracy is proved,” says the prosecution.
“The defence argues that no link is drawn between the four of them other than that they were living together,” explains advocate Hegde. “They say no proper link has been drawn to their pecuniary assets. To be a benami, X has to be in a position of power while Y runs a company or companies. Y should get more money than legitimate business allows. The prosecution has the burden of proving that the income of Y is because of the powerful position of X and needs to show how it goes back to Y. That is something that the prosecution must necessarily show,” he says.
Defence 03: Use of 10% rule justified
Controversy erupted among legal circles over the Karnataka High Court’s use of the judgment in the Krishnanand Agnihotri case to acquit Jayalalithaa and others of amassing disproportionate wealth. The High Court did not state that there were no disproportionate assets amassed by the accused. Instead, the judge relied on a judgment in another case where a public servant was acquitted of similar charges by applying a 10% rule - “when there is disproportionate asset to the extent of 10%, the accused are entitled for acquittal,” said the High Court judgment, citing the Krishnanand Agnihotri case as a precedent.
Jayalalithaa’s affidavit seizes upon this point to argue for the acquittal. “Krishnanand Agnihotri case has only recognized the difficulties of a public servant in explaining every piece of income and expenditure several years post facto, the assessment of such income and expenditure by the court also cannot be with mathematical precision,” reads the affidavit.
The prosecution though questions the propriety of applying the 10% benchmark on a case of this magnitude. “Thereafter, the learned Judge refers to… the judgment in Agnihotri’s case which, according to the Judge, has prescribed a formula that where the disproportionate asset is less than 10% of the income, the Accused cannot be held to be guilty,” says the prosecution. “With this pre-conceived notion, the learned Judge proceeds to consider the case on a few aspects and then, concludes that in the present case, the disproportionate asset is only to the extent of 8.12% and therefore, all the Accused are entitled to an order of acquittal. It is respectfully submitted that the conclusions reached by the learned Judge are not based on proper appreciation of evidence and the conclusions reached are bordering on perversity and is, therefore, liable to be set aside.”
Advocate Vikram Hegde argues that Jayalalithaa may have a point, “This is a justified argument on her part.” “Agnihotri case gives some amount of leeway in the case of a public servant’s assets. Considering the volume and the diverse nature of the assets and the diverse nature of income, there is a possibility of a margin of error. Any benefit of the doubt should go to the accused. To say that this 10% leeway should not be given is not justified from a legal or accountancy point of view. I will not say 10% is a hard and fast rule but it is understandable that a margin can be given.”
Hegde goes on to state that the law in unclear on this point, especially when it comes to larger amounts than merely a few thousands of rupees as in the Agnihotri case. “Should this margin be applied only if there is a difference of Rs 500 or even for a sum of Rs 5 crores?” he asks. “So where is that limit drawn? And is 10% acceptable or do we need a method of calculating acceptable percentage of disproportionate assets? That is something that the court needs to consider.”
Lawyer Nundy says that the more fundamental issue is that of the appeal in High Court being tried by a prosecutor who was not valid in law and therefore removed by the Supreme Court just days before the High Court pronounced its verdict. “There was absence of due process in not retaining a prosecutor (Tamil Nadu Department of Vigilance and Anti Corruption) independent of AIADMK rule in Tamil Nadu,” explains Nundy. “An independent prosecutor should have argued the case. The absence of due process can result in substantive injustice. In this case you can see the difference between the Tamil Nadu prosecutor’s view and the Karnataka prosecutor - that seems to have resulted in substantive injustice. If the Supreme Court does not have time, it is open to the court to send the case back to the High Court for a detailed hearing,” she says.
A host of other issues and points too are all set to be debated in the Supreme Court in the coming months by a two-judge bench. If dismissed outright, Jaya’s 19-year-old spectre of a case will finally be laid to rest. If the prosecution has its way, the case reverts to status quo, meaning Jaya will once again be a convicted person facing fresh trial on appeal in the Karnataka High Court.
“Fair prosecution of politicians is of common value for citizens,” says Karuna Nundy. "It's what jams the revolving door of unaccounted money in politics,” she says.
No matter what the outcome, the order of the apex court will have vast political ramifications as Tamil Nadu heads to polls in 2016.
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