Jayalalithaa’s Acquittal: The great Indian rope trick

Jayalalithaa was convicted on 27 September 2014, and given a four-year jail term.

The Special Court constituted by the Karnataka High Court took exactly 60 seconds on 11 May 2015 to acquit Jayalalithaa in what has come to be known as Jayalalithaa Disproportionate Assets Case. It took Justice Kumaraswamy of the Special Court a minute to overturn Justice John Michael D’Cunha’s sternly worded judgment delivered on 27 September 2014.

‘Heady mix of power and wealth is the bottom line of this case. Huge accumulation of wealth in a short span of five years (1991-96) is a telling example of how power would lead to a concentration of unlawful wealth posing veritable danger to democratic structure,’ Judge John Michael D’Cunha said in his 1136 page order. Justice D’Cunha sentenced Jayalalithaa to four years simple imprisonment and also slapped a whopping Rs.100 crore fine on her.

The very same facts which were placed before the trial court were placed before the Special Court, before Justice Kumaraswamy. But Justice Kumaraswamy acquitted Jayalalithaa and the other co-accused on the ground that ‘the Prosecution’ did not know math, had poor computational skills and the accounting therefore was all wrong. The disproportionate assets were not Rupees 16,32,36,812 (to the extent of around 76%) as was charged in the trial court but a mere Rupees 2,82,36,812 or to the extent of 8.12%. Indeed, Justice Kumaraswamy’s math has already come under scrutiny, for example, this wonderful breakdown of the math in the judgment.

It is well settled law that according to Krishnanand Agnihotri’s case, when there is disproportionate asset to the extent of 10%, the accused are entitled for acquittal. A circular has been issued by the Government of Andhra Pradesh that disproportionate asset to the extent of 20% can also be considered as a permissible limit. The margin of 10% to 20% of the disproportionate assets has been taken as a permissible limit, taking into consideration the inflatory measures. Since the value of apparels and slippers etc., are of insignificant value, I did not deduct this amount from the assets of DV & AC. The Prosecution has mixed up assets of Accused, firms and companies and also added the cost of construction i.e., Rs.27,79,88,945/- and marriage expenses at Rs.6,45,04,222/- and valued the assets at Rs.66,44,73,573/-. If we remove the exaggerated value of cost of construction and marriage expenses, the assets will work out at Rs.37,59,02,466/-. The total income of the Accused, firms and companies is Rs.34,76,65,654/-. Lack of proportion amount is Rs.2,82,36,812/-. The percentage of disproportionate assets is 8.12%. It is relatively small. In the instant case, the disproportionate asset is less than 10% and it is within permissible limit. Therefore, Accused are entitled for acquittal. When the principal Accused has been acquitted, the other Accused, who have played a lesser role are also entitled for acquittal.

A dumbfounded nation watched Jayalalithaa’s disproportionate assets flying up the rope even as the good Justice acquitted her. The nation would be wrong to think Justice Kumaraswamy did this all alone. He had timely and expert assistance from Bhavani Singh, the judiciary’s special assistant as described by Wikipedia in the ‘classic’ version of the Indian rope trick.

bhavaniHowever, this simple fact sheet will deconstruct the central role played by Bhavani Singh as the Special Public Prosecutor (SPP) in the appeals case. Bhavani Singh was ‘The Prosecution,’ which according to Justice Kumaraswamy got its arithmetic wrong which eventually led to Jayalalithaa’s acquittal.

Facts of the case

  1. This case is about Jayalalithaa’s disproportionate assets which she as Chief Minister and the other co-accused in the case, Sasikala Natarajan, her nephew Sudhakaran and Ilavarasi the wife of another of Sasikala’s nephews, the late Jayaraman, allegedly amassed between 1991-1996.
  2. Dr. Subramanian Swamy submitted a complaint against Jayalalithaa’s disproportionate assets before the Inspector General of Police in the Directorate of Vigilance and Anti-Corruption (DVAC) and an FIR was lodged against Jayalalithaa on 18-09-1996 when Jayalalithaa had just lost the assembly elections and the DMK came to power.
  3. It is important to keep in mind that the FIR filed by Dr. Swamy before the DVAC was during the DMK regime; the attitude of the then DVAC towards Jayalalithaa was therefore radically different from the incumbent DVAC in the Special Court hearing the appeals against the conviction.
  4. Subsequent to the FIR, IG of Police DVAC registered a case against Jayalalithaa in Cr.No.13/AC/96/HQ u/s 13(2) r/w 13(1) (e) of the Prevention of Corruption Act for further investigation.
  5. The case against Jayalalithaa for disproportionate assets began the same day when DVAC filed the charge-sheet before a Special Judge in the Principal Sessions Court.
  6. The case meandered aimlessly for several years and was still pending before the Sessions Court in Chennai when in 2001 the DMK lost the assembly elections and Jayalalithaa was swept to power.
  7. It was to be expected that the attitude of the new Tamil Nadu Government and the DVAC in the new dispensation would change towards the disproportionate assets case, and to cut a long story short, in November 2003 the case was transferred out of Tamil Nadu to a Bangalore Special Court allegedly in the interest of fair and impartial proceedings.
  8. The case took 18 long years to conclude – 7 years in the Special Court in Chennai and 11 years in the Bangalore Special Court.

Facts of the case in Special Court, Bangalore

  1. Jayalaithaa’s DA case, during the 11 years it took to reach final verdict, saw four full time judges before D’Cunha took charge as judge in the case in October 2013.
  2. Justice D’Cunha concluded all hearing in the case within a year of taking charge and pronounced his final verdict in September 2014.
  3. The first judge was A S Pachhapure who had charge of the case from December 2003 to August 2005 when the Supreme Court stayed the order passed by Justice Pacchhapure clubbing the two cases CC No. 7 of 1997 and CC No. 2 of 2001 into one consolidated case of disproportionate assets.
  4. From 2005 to 2007 the case was in a limbo and did not progress because the Supreme Court had not vacated the stay order and the post of Judge in the case fell vacant when Justice Pachhapure was elevated as judge of the Karnataka High Court in July 2007.
  5. Justice Pachhapure was succeeded by A T Munoli and then Justice B M Mallikarjunaiah. Justice Mallikarjunaiah was succeeded by Justice M S Balakrishna and finally by Justice D’Cunha in October 2013.
  6. Although the DA case was transferred to the Special Court in Bangalore in November 2003, BV Acharya is appointed SPP after an inexplicable delay for over two years only in February 2005.
  7. In an unsavoury turn of events BV Acharya quits as SPP on August 15, 2012.
  8. After another inexplicable delay of six months the Karnataka High Court appointed Bhavani Singh as SPP in February 2013.
  9. In August 2013 Bhavani Singh is removed as SPP; Bhavani Singh moves the Supreme Court against his removal.
  10. Supreme Court reinstates Bhavani Singh as SPP on 30 September 2013.

Finally, after all twists and turns which dragged the case for ten long years in the Bangalore Special Court, Bhavani Singh was confirmed as SPP in September 2013 and he would prosecute Jayalalithaa and other accused in the disproportionate assets case and Justice D’Cunha took over the case on October 2013. Justice D’Cunha finally brought the curtain down on Jayalaithaa’s disproportionate assets case when he delivered the verdict on 27 September 2014 holding Jayalalithaa as Chief Minister of Tamil Nadu guilty of amassing wealth disproportionate to known sources of income.

It was proved in evidence that, at the time of commencement of the check period (1991-96), Jayalalithaa was in possession of total assets worth Rs 2,01,83,965.53 including the assets of the partnership of Jaya Publications and Sasi Enterprises, the judge said. But, it noted, by the end of April 30,1996, her total wealth had risen to Rs 53,60,49,954.00 against her legitimate income of Rs 9,91,05,094. ‘This value is not the present market value of the assets’. It should be noted that the value of the disproportionate assets possessed by the accused are determined on the basis of the actual cost incurred by them for acquisition of properties and assets from 1991 to 1996, the order said.

 

The Great Indian Rope Trick begins

Jayalalithaa was convicted on 27 September 2014, and given a four-year jail term. The Supreme Court released her on bail on 17 October 2014. How the judiciary dealt with bail applications of other political leaders and VIPs either already in jail or facing imminent arrest is germane to the issue.

laluLalu Prasad Yadav had to spend a year in jail before he was granted bail. Om Prakash Chautala was given bail in two months on grounds of poor health but Satyam Chairman Ramalinga Raju and other co-accused had to wait for three years to get bail. While A. Raja and Kanimozhi spent one year in jail before getting bail, Teesta Setalvad and her husband Javed Anand hired Kapil Sibal to move the Supreme Court and actor Salman Khan hired Harish Salve to move the Bombay High Court to stay their arrests within hours after conviction.

But Jayalailithaa’s lawyer, Fali Nariman had the best argument so far in the history of court arguments asking for bail. In the Supreme Court, Fali Nariman placed the argument that Jayalalithaa must be granted bail because she needed time outside jail to prepare her appeal against the conviction of the trial court. Nariman also cited Jayalalithaa’s age and health conditions including diabetes, hypertension, cellulites etc to get the Supreme Court to grant her bail. That there are no well-defined rules or well-established principles to guide bail decisions became amply clear when the three judge bench in the Supreme Court of Justices HL Dattu, Madan Lokur and AK Sikri suspended not only Jayalaithaa’s sentence but also that of Sasilkala, Sudhakaran and Ilavarasi and granted them bail.

A parallel theater in the rope trick unfolded within two days after Jayalalithaa was found guilty by the trial court. On 29 September 2014, upon receipt of request from the Directorate of Vigilance and Anti-corruption, Chennai, Principal Secretary to the Tamil Nadu government passed an order engaging Bhavani Singh as the SPP ‘who will appear before the Karnataka High Court on behalf of the DVAC in appeal/bail application and other petitions following the conviction of the four accused in the DA case.’

Bhavani Singh who two days ago prosecuted Jayalalithaa in the trial court and found her guilty was now being hired by Jayalalithaa’s government to appear on behalf of the same government in the Karnataka High Court in the appeals case. The Tamil Nadu Government was not a disinterested party in the appeals case. It was Jayalalithaa’s government and the government wanted Jayalalithaa’s conviction to be set aside in the appeals case. How can a man who prosecuted her be hired to appear on behalf of her government in the appeals case? This was no secret because this was an official government order issued by the Principal Secretary on 29 September 2015.

It is perplexing to say the least why neither the Karnataka High Court nor the Supreme Court took suo motu notice of this retrograde government order appointing Bhavani Singh as SPP in the appeals case. The move was retrograde on two grounds:

  1. It was the prerogative of the Karnataka High Court to appoint the SPP. The transferor court, in this case Tamil Nadu, did not have the right to appoint a SPP for a case which was to be tried in Karnataka. Karnataka as the transferee court alone had the right to appoint the SPP
  2. Secondly, how could a man who prosecuted Jayalalithaa and found her guilty be hired by Jayalalithaa’s government to appear on behalf of the DVAC?
  3. Third, what really was Bhavani Singh’s designation in the appeals case in the Karnataka High Court? Was he SPP in which case he would be the prosecutor in the appeals case or was he the lawyer hired by the Tamil Nadu government? On which side of the case really was Bhavani Singh?

The Supreme Court gave Jayalalithaa bail in October 2014 and in December 2014 extended the bail for another four months besides instructing the Karnataka High Court to constitute a Special Court to hear the appeals case on a day to day basis and conclude all hearings within three months.

Legal experts like Prashant Bhushan, Aryama Sundaram and BV Acharya who have all appeared in television channels must tell the nation why did the Supreme Court in December 2014, when it instructed the Karnataka High Court to constitute the special court, not deal with the issue of Bhavani Singh as SPP? Bhavani Singh’s appointment by TN government as SPP violated not only the due process of the law but violated all ethics and morality. A man who prosecuted Jayalalithaa was now hired by the same government to appear on its behalf!

Two questions for the legal experts

Why did the Karnataka High Court fail/refuse to appoint the SPP? And why did the SC not take suo motu notice of Bhavani Singh’s appointment and strike down his appointment in December itself before the appeals trial started in the High Court? How can an ordinary citizen not help but think that both the Karnataka High Court and the Supreme Court had already set the appeals case in motion in the desired direction?

Facts in the appeals case

  1. In total contravention of all established laws on the issue, the appeals case starts in the Special Court in the Karnataka High Court in January 2015 and Bhavani Singh is SPP. Jayalalithaa’s team of lawyers and all lawyers appearing for the other three accused in the case begin to make their oral arguments and written submissions in the High Court.
  2. Dr. Subramanian Swamy and DMK’s Anbazhagan file petitions to implead themselves in the appeals case.
  3. Justice Kumaraswamy refuses to allow Dr. Swamy to implead but permits him to make written submissions and assist the SPP.
  4. When the Karnataka High Court refused to appoint the SPP and when Dr. Swamy was denied permission to present oral arguments, there was no agency which could have verbally countered the oral arguments made in the court by the lawyers of the accused. This alone weakened the case because written submissions do not carry the same punch, fire or the power that come with oral arguments.
  5. Anbazhagan’s petition challenging Bhavani Singh’s appointment as SPP is taken up by the Supreme Court only on 7 April 2015. A two judge bench of the SC headed by Justice Lokur with Justice Banumathi as second judge delivered a split verdict. Justice Lokur held Bhavani Singh’s appointment as SPP bad in law and wanted the entire appeals case to be heard afresh. Justice Banumathi differed from Justice Lokur and the case was referred to a larger bench.
  6. A three member bench headed by Justice Dipak Mishra took up the case for hearing on 27 April.
  7. This bench struck down Bhavani Singh’s appointment but denied permission to hear the case again from the beginning.
  8. Justice Dipak Mishra gave a profound lecture in court on how ‘notwithstanding the fact that Bhavani Singh was a poisoned tree,’ it was up to the judge of the special court hearing the appeals case to demonstrate convincingly to the world that the fruit of the poisoned tree was not tainted and that justice could still be made to prevail even if the entire proceedings were flawed from beginning to end.
  9. Justice Dipak Mishra as head of the three member bench also appointed BK Acharya as SPP and told him to make his written submissions not exceeding 50 pages before the judge not later than 28-04-2015; which is within 24 hours.
  10. So not only was Dr. Swamy denied permission to make oral arguments, the Supreme Court placed unfair and untenable conditions upon the new SPP.
  11. The new SPP could not make oral arguments; the new SPP was given only 24 hours to make his written submissions; the written submissions could not exceed 50 pages.
  12. SPP BK Acharya submitted to the conditions without demur and Justice Kumaraswamy on 11 May acquitted Jayalalithaa.
  13. The case vanished into thin air and Jayalaithaa walked out of Poes Garden ‘like gold refined by fire’, as she put it. The other three accused also walked free.
  14. The gold and the fire were also part of the rope trick.
radha@jjamm.net'

Radha Rajan is a Chennai-based political analyst. She is also author and animal activist.