In a 1136 page judgment last September, J. Jayalithaa was convicted under the Prevention of Corruption Act 1988 of having assets disproportionate to her Chief Ministerial income of Rs. 1 per month. This morning – six months later – on appreciating the same evidence largely, the Karnataka High Court has acquitted her.
In its judgment acquitting Jayalalithaa, the Karnataka High Court says repeatedly that the acquittal was a failure of the prosecution.
Buried on page 691 of the High Court judgment acquitting the former Tamil Nadu Chief Minister is this statement of BV Acharya, a respected senior lawyer who was appointed Special Public Prosecutor in the case:
“According to the law settled by the Supreme Court, the sole prosecuting agency is the State of Karnataka and in the appeals, the Public Prosecutor validly appointed by the State of Karnataka has to be heard. In all the above appeals, very significantly, the State of Karnataka which is the sole prosecuting agency has not been made a party.”
Acharya was allowed only to make written submissions with two days notice, no arguments were heard from the State of Karnataka.
Who then prosecuted the case?
Some investigation brought this recent Supreme Court order to light.
A fair trial against Jayalalithaa had not been made possible in Tamil Nadu and the Supreme Court in 2003 had transferred the case to Karnataka. Acharya was appointed Special Public Prosecutor, but before the end of the trial, he resigned.
Acharya resigned because he reportedly stated in a petition to quash a false criminal complaint against himself, “some vested interests were after him to see that he quit from his role as special public prosecutor in the assets case against Jayalalithaa.”
This was towards the very end of the trial and Bhawani Singh was appointed prosecutor in his place. The trial court nonetheless found Jayalalithaa guilty, convicted her to four years in jail, with a 100 crore fine.
In the appeal before the High Court, the State of Tamil Nadu took over the prosecution against the Chief of Tamil Nadu’s ruling party. The State of Karnataka was not made a party.
Bhawani Singh was appointed by the State of Tamil Nadu to prosecute the case against Jayalalithaa in appeal. Curiously, the State of Karnataka who had been charged with appointing and paying a Special Public Prosecutor at the first instance, remained silent about Tamil Nadu’s takeover of the prosecution.
The Supreme Court intervened in the matter, but very late. It was Jayalalithaa’s political opponents that asked for and got the Supreme Court’s intervention; Jayalalithaa herself was asking the court to keep Bhavani Singh on as Special Public Prosecutor.
On April 27, 2015 in K. Anbazhagan Vs State of Karnataka and Others, a three judge bench of the top court said:
“ The State of Karnataka, which is the prosecuting agency, is granted permission to file written note of submissions within 50 pages. The written submissions be filed latest by 28.4.2015. The written note of submissions filed before the trial court and the High Court along with written note of submissions of State of Karnataka shall be considered by the learned Single Judge and the consideration should be manifest in the judgment.
(a) The State of Tamil Nadu had no authority to appoint the 4th respondent, Bhavani Singh as the Public Prosecutor to argue the appeal.
(b) It is the State of Karnataka which is the sole prosecuting agency and it was alone authorised to appoint the Public Prosecutor.
(c) The appointment of 4th respondent, Bhavani Singh as the Public Prosecutor for the trial did not make him eligible to prosecute the appeal on behalf of prosecuting agency before the High Court.”
BV Acharya, now reappointed, had one day left to file written submissions, and no time to make oral arguments. The High Court was on a tight deadline to complete the trial and pronounce its verdict by May 12.
Now we hear that the State of Karnataka may not appeal the judgment, although Article 136 of the Constitution of India allows the Supreme Court to hear a Special Leave Petition against ‘any order from any court’; although they never got a chance to make oral arguments in appeal; and although it was the State of Tamil Nadu that let its own prosecution down.
There are three political parties involved here, the AIADMK in power in Tamil Nadu, which Jayalalithaa is in charge of and whose administration provided the prosecutor in appeal, the BJP at the Centre whose leaders have been congratulating her on her release in the most fulsome terms and reportedly got rid of BV Acharya as Advocate General when they were in power, and the Congress in the State of Karnataka who failed to object that Tamil Nadu had surreptitiously taken over the prosecution.
Fortunately, there is a detailed trial court judgment that examined 258 witnesses and brought ample evidence on record. In an adversarial system it is difficult for a High Court Bench to do complete justice without the active assistance of a prosector, indeed though the court is clear that it is the prosecution that wasn’t able to make out a case.
Cynicism comes easy these days to Indian taxpayers. The evening of the acquittal, #JayaVerdict was not even trending on Twitter.
In a country where political power is propelled through a revolving door of unaccounted money, a precedent was set with J Jayalalithaa: She was the first sitting Chief Minister to step down after the Supreme Court’s judgment in the Lily Thomas case which disqualified legislators convicted of a crime that carried a sentence of more than two years.
The trial of Jayalalithaa vs State of Tamil Nadu is also the trial of defeated cynicism vs the rule of law.
There is still time to fix it.
Karuna Nundy is an Advocate, Supreme Court of India.