Justice CR Kumaraswamy of the Karnataka High Court has paved the way for former Chief Minister of Tamil Nadu and general secretary of the ruling AIADMK, J Jayalalitha, to resume her chief ministership by setting aside her conviction by the Special Court in Bangalore under Section 13 (1) (e) of the Prevention of Corruption Act, 1988, and sentence of four years imprisonment and a fine of Rs 100 crore for amassing wealth disproportionate to her known sources of income. The first serving Chief Minister to go to jail for corruption in India, she was sworn in as Tamil Nadu Chief Minister for the fifth time with pomp and pageantry in Chennai on 23 May witnessed by senior leaders of the BJP among others.

The check period of Jayalalitha amassing wealth disproportionate to her known sources of income was 1 July 1991 to 30 April 1996 when she was Chief Minister for the first time drawing a token monthly salary of one rupee. Subramanian Swamy, then president of the Janata Party, after obtaining permission from Governor Mari Chenna Reddy, filed cases of corruption against Jayalalitha. The cases were pursued by the DMK government which succeeded the AIADMK in 1996. She was convicted in a series of cases like the colour TV case of Rs 10 crore kickbacks, Rs 4-crore Tansi land deal, flouting of building rules in the Kodaikanal Pleasant Stay Hotel case, and the Rs 6.5 crore coal import scam case.

On her return to power in 2001, she managed to get acquitted in all these cases by the Madras High Court. The Rs 66-crore disproportionate asset case was transferred by the Supreme Court to Karnataka in 2002. After many a twists and turns, the Special Court in Bangalore based on documentary evidence put her disproportionate assets as Rs 53.6 crore and convicted and sentenced her in September last to four years imprisonment and a fine of Rs 100 crore. The conviction disqualified her from continuing as Chief Minister and member of the Tamil Nadu Legislative Assembly with immediate effect.

Relying on a pre-1988 PCA judgment of the Supreme Court that disproportionate assets up to 10 per cent could be condoned, Justice Kumaraswamy, through some arithmetic legerdemain, brought down Jayalalitha&’s unaccounted assets to Rs 2.82 crore, which is just 8.12 per cent of her wealth. In the Krishnanand Agnihotri case, the Supreme Court found the accused had amassed Rs 11,000 in excess of his known source of income and allowed him to go scot free. Using the same yardstick, Justice Kumaraswamy declared Jayalalitha was not guilty of accumulating disproportionate assets, and acquitted her of all charges and discharged her bail bond on 11 May.

The learned judge committed a grievous error of simple arithmetic in adding nine Indian Bank loans of Rs 1,50,00,000, Rs 3,75,00,000, Rs 90,00,000, Rs 25,00,000, Rs 12,46,000, Rs 50,00,000, Rs 25,00,000, Rs 1,57,00,000, Rs 1,65,00,000, and Rs 17,85,274 as Rs 24,17,31,274 whereas the total should be Rs 10,67,31,274. Once the difference of Rs 13,50,00,000 is taken into account, Jayalalitha&’s disproportionate assets go up from 8.12 per cent to 75.76 per cent. Of the none loans enumerated, the first one of Rs 1.5 crore had been repaid in full during the check period and should not have been included as part of Jayalalitha&’s income as it is a case of duplication. The loan of Rs 1.57 crore listed was the amount applied for. The bank sanctioned Rs 1.33 crore only. There is a discrepancy of Rs 20 lakh. Taking all these errors into consideration and applying the same formula to arrive at the percentage of disproportionate assets, it it comes to 106 per cent of her known sources of income and the reasoning for acquitting her falls flat.

Justice Dipak Misra, heading a three-judge Bench of the Supreme Court, while dismissing the Tamil Nadu government appointed public prosecutor in Jayalalitha&’s appeal in Justice Kumaraswamy&’s court, laid down certain guidelines for the single judge to follow while deciding the appeal and ordered the Registry of the Supreme Court on 27 April itself to send a copy of his judgment to the Registrar-General of the Karnataka High Court to place it before Justice Kumaraswamy. “Be it noted,” said Justice Misra, “the appeal assails the judgment of conviction and order of sentence passed under the various provisions of the 1988 Act.” Saying the case under the 1988 Act has its own significance, he quoted a paragraph from the Niranjan Hemchandra Sashittal v State of Maharashtra which held thus: “It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with constitutional morality.”

Justice Misra cautioned that “a judge must avoid all kind of weakness and vacillation.” In Subramanian Swamy v CBI, the Constitution Bench, while declaring Section 6-A of the Delhi Special Police Establishment Act, 1946, unconstitutional, observed, “Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section 6-A because of the goal of law in the PC Act is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.” Regarding the conduct of judges, the Supreme Court had said in High Court of Rajasthan v Ramesh Chand Paliwal (AIR 1998 SC 1079), “Judges have to live and behave like hermits who have no desire, having shed it through penance as their mission is to supply light and not heat.”

Apart from not meeting the outdated formula of 10 per cent admissible corruption, Justice Kumaraswamy&’s order suffers several other infirmities, the most glaring is the absence of a legal public prosecutor which Karnataka alone was qualified to appoint. The entire appeal proceedings were conducted without making Karnataka a party though it was a necessary legal requirement. Counsel for the accused was allowed to make oral arguments for two months without the presence of an authorised prosecutor, thereby denying the principles of natural justice. Only after hearing was over, BV Acharya was appointed as public prosecutor and he was given just 24 hours to make a written submission within 50 pages. For this lapse alone Jayalalitha&’s appeal should have been dismissed in limine, says Acharya. The Foreign Exchange Regulation Act prohibits public servants from receiving gifts from foreign countries. If allowed, ministers could accept bribes from foreign countries in the form of gifts. In the case of Jayalalitha, foreign remittance of Rs 77 lakh was admitted as income by Justice Kumaraswamy. This would encourage politicians to take bribes in kind to escape penalty under FERA. A CBI case against accepting Rs 77 lakh foreign remittance as gift is pending in the Supreme Court. The learned judge has also accepted Rs 1.5 crore Jayalalitha received as gifts on the occasion of her 44th birth day celebrations. According to conduct rules, ministers cannot receive gifts. If gifts and foreign money remittances are accepted as lawful income, it will only breed corruption. The 919-page judgment is replete with incongruities. Sooner than later the Karnataka government or one or the other aggrieved parties will approach the Supreme Court with special leave petition. If the apex court shows the same speed it has shown in the disposal of Jayalalitha&’s appeal in the Karnataka High Court in disposing of the special petition also, one could see the political scene in Tamil Nadu undergoing a sea change.