Chennai: The Karnataka government, after much deliberation, finally filed a Special Leave Petition (SLP) in the Supreme Court on Tuesday, asking it to set aside the Bangalore High Court judgment of May 2015 which acquitted Tamil Nadu Chief Minister Jayalalithaa of all charges in a 19-year-old disproportionate assets case. In its interim prayer, Special Public Prosecutor BV Acharya has asked for a stay on the High Court order until the petition is disposed of.
In a stinging rebuke of the High Court’s order, the SLP calls for setting aside a judgment that “lacks reasoning, is not logical and is cryptic. The evidence has not been considered objectively and lacks deliberation. The judgment is not resolutely expressed.”
The five key points that are raised in the petition challenging Jayalalithaa’s acquittal were first published by The Wire on May 19.
“Simply put, there are five key points,” said Sandesh Chouta, Acharya’s junior counsel. “(1) Despite the Supreme Court holding that the prosecuting agency in the case is the Karnataka government, Karnataka was not made a party in the appeal; (2) The prosecutor appointed by Karnataka was not given an opportunity to present oral arguments; (3) Arithmetic errors are many – even if you accept everything in the High Court order, the proportion of disproportionate assets comes to 34% and not 8.12% as said by the judge; (4) If corrections are carried out to the duplication of income in the judgment, the quantum of disproportionate assets goes up to 76%, and (5) The figures accepted by the High Court are far less than those given by the accused themselves, which is incorrect,” he said.
Jaya was convicted by a special court in a Rs 66 crore corruption case last September which led to her being unseated as Chief Minister. A subsequent Bangalore High Court appeal in May 2015 overturned the sentence, acquitting her of all charges and paving the way for her takeover as CM once again. As per the rules, Jaya has to win an MLA seat within 6 months and hence a bypoll has been scheduled for the Radhakrishnan Nagar constituency in Chennai on June 27.
The petition argues that the acquittal of Jayalalithaa must be overturned as the case is against a person who was “holding a position of Chief Minister of a State at the time of the commission of the offence. The charges are grave. The order of acquittal has resulted in gross miscarriage of justice. A totalling mistake has resulted in acquittal instead of an order confirming conviction… if the said judgment of the Hon’ble High Court is not stayed, it would result in travesty of justice,” it says.
Apart from the technical points raised in the miscalculation of assets and income, the petition also slams Justice Kumaraswamy of the Bangalore High Court for passing an erroneous order. The petition asks whether the High Court judge followed the orders of the three-judge bench of the Supreme Court which held that the prosecuting agency in this case was the Karnataka government and not the Tamil Nadu Directorate of Vigilance and Anti-Corruption (DVAC). The petition refers to the directions given in Para 36 of the order of the SC bench to the Karnataka High Court judge:
“We have referred to the aforesaid two authorities only to highlight the gravity of the offence. We are absolutely sure that the learned single judge, as the appellate judge, shall keep in mind the real functioning of an appellate court. The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinised with care and caution. It is the duty of the judge to see that justice is appropriately administered, for that is the paramount consideration of a judge. The said responsibility cannot be abdicated or abandoned or ostracised, even remotely, solely because there might not have been proper assistance by the counsel appearing for the parties. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the judge is to consider the evidence objectively and dispassionately. The reasonings in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”
The Karnataka government’s petition contends that these instructions from the apex court have not been complied with by the High Court while deciding the appeal. The petition also asks whether “the judgment demonstrates that the learned judge has failed in his duties as an appellate judge.”
Arithmetic errors & duplication of income
The Karnataka petition, while discussing some of the High Court’s errors, claims that there has been a duplication of loan income. It also claims that the actual proportion of unexplained wealth to income is 76.7%, as reportedin The Wire. The petition says it “is unfortunate that this grave error committed by the learned judge in totalling should result in an order of acquittal, whereas, the same should have been one of confirming the conviction.”
The Wire, in another story on June 1 showed how the High Court judge had, in various instances, preferred to take into account figures even lower than what the defence had claimed, as can be seen in the cases of costs incurred in construction as well as in cases like the income of Super Duper TV owned by one of the accused, VN Sudhakaran.
In the case of income from Jayalalithaa’s grape garden, the High Court had taken into account an income of Rs 4 crores. The petition states, “The learned judge on Page 860 has erroneously treated the total amount of turnover as net profit. The learned judge ignored the fact that the trial court had, for cogent reasons, rejected the balance sheet as unreliable.” The petition goes on to say that the trial court order taking Rs 1.5 crores as the income from the grape garden is in fact, the correct figure.
The addition of gifts as part of Jaya’s income by the High Court too has been questioned on the grounds that the issue was part of a CBI probe, and is pending before the apex court.
Charge of conspiracy
The petition questions the High Court’s decision that there was no criminal conspiracy and abetment between the four accused. It insists that the trial court order which found Jayalalithaa and others guilty of criminal conspiracy is correct and states that the fact that the High Court judge has taken the assets of all four accused together in itself implies 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.”
Raising 15 serious questions of law, the petition seeks to set aside the order of the High Court acquitting Jayalalithaa and also asks that a stay be issued on the same order until the SLP is decided by the Supreme Court.
“It is good that the Karnataka government has not given a knee-jerk reaction and actually considered the question of appeal with great deliberation,” said senior Supreme Court lawyer Rajeev Dhavan. “There can be no doubt that there are huge errors in the High Court decision that ill become the final order in this case. I won’t speculate as to how this order came to be. But it is certainly not free from error and requires the Supreme Court to deal with this as expeditiously as possible so the question as to whether she is guilty or not is decided, because the issue of her representation in the Tamil Nadu Assembly and being CM has to be resolved. It is now settled that a conviction beyond two years will disqualify her,” he said.
Jaya’s future uncertain
Karnataka’s appeal comes a day after Jayalalithaa began campaigning in her chosen constituency of Radhakrishnan (RK) Nagar in North Chennai.
“This by-poll has been thrust upon you,” she said during her campaign in RK Nagar on Monday. “It has been necessitated due to the cases foisted against me by political rivals,” she said in her first reference to her conviction and subsequent acquittal in the case. Jayalalithaa is widely expected to win the vote, thus confirming her post as Chief Minister.
If the Supreme Court decides to grant the Karnataka government’s interim prayer for a stay in the case, Jaya could likely be forced to step down as CM and resign as an MLA once again as the legal status quo would revert to her being a convicted person. That would place her political future in jeopardy as all political parties in the state have already begun vigorous campaigns for the 2016 Assembly elections.
No one from Jayalalithaa’s party, the ruling All India Anna Dravida Munnetra Kazhagam was willing to comment on the petition.
“She is answerable to the Constitution and not to one constituency in Tamil Nadu,” said Dhavan, adding that the law would take its necessary course.
Sandhya Ravishankar is a journalist based in Chennai. She tweets at @sandhyaravishan