Note: This story was originally published on June 1, 2015, and is being republished in light of the Supreme Court verdict.
Chennai: The Karnataka cabinet today decided to move the Supreme Court on appeal against the recent Bangalore high court verdict acquitting J. Jayalalithaa, her close aide Sasikala and two others in a disproportionate assets case.
“I welcome the decision of the Karnataka cabinet,” said BV Acharya, special public prosecutor in the case. “The government has accepted the legal opinions and recommendations given both by the Advocate General as well as by myself,” he said.
The Wire had earlier this month reported on the four main inconsistencies in the high court’s verdict which had allowed Jayalalithaa and others to be acquitted. But there is one more large and inexplicable error in the high court verdict, say legal experts.
Since the fundamental determinant of the accused persons’ disproportionate assets hinges on their spending more money during the impugned period than their declared sources of income, the acquittal turned on the curious tabulation of expenditure made by Judge Kumaraswamy – especially the money spent on construction costs
On page 797 in the high court order acquitting Jayalalithaa – after a lengthy discussion of the arguments of the prosecution, the defence and the trial court order – Judge Kumaraswamy puts the costs incurred in the construction and renovation of various buildings at Rs 5,10,54,060 (Rs 5.1 crores).
On comparing the high court’s tally with the written submissions made by the defendants, in this case Jayalalithaa and her close aide Sasikala, a peculiar situation arises.
Item number 51 in the written submission of Jayalalithaa clearly states that she has admitted to expenditure of Rs 3,62,47,700 (Rs 3.6 crores) towards construction costs in Poes Garden and a farmhouse in Hyderabad.
Similarly, a tabular column detailed in the written submission of Sasikala shows that she and another accused, J Elavarasi, have admitted to expenditure of Rs 5,05,59,419 (Rs 5 crores) towards construction costs of various buildings.
The sum total of the construction costs admitted to by the defence is thus Rs 8,68,07,119 (Rs 8.6 crores).
The Wire cross-checked this tally with the written submissions made by the defendants to the Karnataka high court. Again, a tabular column under the heading “Value of the assets according to the accused under following heads as shown in Page 711 of the trial court judgement” shows clearly the defence claim on the amount spent towards construction costs. The defence clearly states that they have spent a total of Rs 8,60,59,261 (Rs 8.6 crores) in their submission to the high court too.
Strangely enough, the high court has decided that the defendants have in fact spent less than the amount that they have themselves admitted to. Judge Kumaraswamy has stated in his order that the defendants have spent only Rs 5.1 crores, reducing costs incurred by the defendants by about Rs 3.5 crores.
More costs incurred by the defendants would mean a higher amount of expenditure that would need to be explained to the courts. The trial court on Page 711 held that Jayalalithaa and others had spent Rs 22,53,92,344 (Rs 22.5 crores) on construction and renovation of various buildings. The defendants disagreed and said they had spent Rs 8.6 crores only. The Karnataka high court disagreed with both and said Jayalalithaa and others had spent only Rs 5.1 crores.
“This is really strange,” said a retired high court judge. “The judge has gone neither by what the prosecution says, nor by the defendants. This is a clear example of a case where the evidence needs to have been scrutinized thoroughly. Errors like this will creep in otherwise,” he said.
“This is not the only instance in the order where the high court has gone beyond the defence,” said Vikram Hegde, a lawyer based in Karnataka. “Even the loan amount, if you look at it, is more than what the defence says.”
Legal experts argue that these errors could have been avoided if a proper prosecution had been made available during the trial period. In January this year, the Supreme Court struck down the appointment of Special Public Prosecutor (SPP) Bhavani Singh as “bad in law” and asked the Karnataka Government to appoint a new SPP. BV Acharya who was subsequently appointed, was given a day’s time to submit written arguments, with no verbal arguments being allowed.
“A proper prosecution would have made a huge difference to this case,” said Hegde. “First, it is an authentic source and second, the court would have had qualified assistance. The role of the prosecutor in a case like this is to take the court through the maze of evidence. The previous prosecutor did not do that in the high court. I would go so far as to say that the previous prosecutor had not done his job even in the trial court. As a result, the judge has been at a disadvantage and he has not been able to apply his mind,” he said.
Other glaring errors in the judgement include arithmetic mistakes, duplication of loan income, and erroneous use of IT returns as a valid source of income. A fiery debate is also on within legal circles on whether the use of the 10% rule — the quantum of disproportionate assets an accused is allowed before it becomes an offence — as used in Krishnanand Agnihotri is applicable at all to Jayalalithaa as her case involves crores of rupees with a charge of corruption while in office.
“It is in Jaya’s interest that she gets cleared by the Supreme Court,” said senior Supreme Court lawyer Rajeev Dhavan. “Without that, huge doubts will hang over the Bangalore high court verdict. It appears that there are grievous blunders – whether in calculation, construction costs or wedding costs. There are huge doubts whether the 10% rule can really be applied when figures are larger than say, Rs 5 lakhs. This matter needs to be agitated before the Supreme Court for reasons of justice as well as reasons of error,” he said.
Jayalalithaa, who took charge once again as Tamil Nadu chief minister following her acquittal, will contest a by-election for a Tamil Nadu assembly seat on June 27 even as the decision on Karnataka’s appeal hangs over her head.
The Wire tried reaching a number of AIADMK leaders but none among them was willing to comment either on the computational errors in the high court order or the Karnataka government’s decision to move the Supreme Court.
Sandhya Ravishankar is a Chennai-based journalist. She tweets at @sandhyaravishan.