Sasikala conviction: The corrupt have been warned

Sasikala conviction: The corrupt have been warned

Submitted by alvin on Sat, 2017-02-18 17:09 On June 14, 1996, politician Subramanian Swamy filed a private complaint in a criminal court in Madras against J Jayalalithaa. She was the Chief Minister of Tamil Nadu between June 24, 1991 and May 13, 1996. The charge was one of corruption - possession of disproportionate wealth by her, a public servant. Jayalalithaa is no longeralive, and a dead person cannot be punished.This week, the Supreme Court concluded this case by convicting three individuals who had aided Jayalalithaa to acquire disproportionate wealth - aide Sasikala, Sasikala’s nephew Sudhakaran (Sasikala’s sister’s son) and Ilavarasi (Sasikala’s brother’s wife). Each one of these three individuals has been sentenced to a jail term of 4 years. Also, a penalty of Rs.10 crores has been imposed upon each of them.In his complaint, Subramanian Swamy had alleged that in 1989-90, Jayalalithaa had barely any income at all.Five years later, while stepping down as the Chief Minister of Tamil Nadu, her income had swelled to Rs.38 crores.India is one of the few countries of the world to have this concept of ‘disproportionate wealth’ to punish a corrupt public servant. We must be grateful to the Parliament for including such a scheme in our anti-corruption statute, the Prevention of Corruption Act, 1988. Someday in the future, hundreds of corrupt public servants across Karnataka, Tamil Nadu and of course, the rest of India will surely be convicted under this law. This week’s judgment also sets the stage for it.Every public servant in India is bound by this law, the Prevention of Corruption Act, 1988. A public servant who acquires wealth during his tenure owes a duty to explain how he acquired such wealth. If a satisfactory explanation is not forthcoming from him, he could be criminally investigated. If charged, tried and found guilty, he could be punished with a jail term of 7 years. And, the state government will confiscate such unexplained wealth. Also, if any private person aids a corrupt public servant to acquire such disproportionate wealth, whether for himself or someone else, that private person could also be convicted and jailed to the same extent as the public servant. In this case, Sasikala and her two relatives were not public servants but were punished to the same extent as the public servant that they aided to amass wealth through corruption.To elaborate, say, a public servant is caught receiving a bribe. If detected during or after the act, there will be no difficulty in arresting him, trying and convicting him under the law. However, let us take the case of a public servant who regularly receives bribes. If he is clever to evade the law and doesn’t get caught in those acts, he buys properties in his own name or the name of his family members, relatives or friends. Even though the law may not have caught him in his initial act of bribe taking, it tries to catch him afterwards through this concept of ‘disproportionate wealth’.Public servants, who have corruptly amassed wealth or properties, cannot rest simply because the law did not notice their initial act of bribe taking. The storage or application of that bribe is caught through this concept of ‘disproportionate wealth’. The prosecution in such cases does not have to show that such disproportionatewealth came about through any specific incident or bribery. We know that the wealth of a large number of public servants across India has swelled inexplicably over the years. It is time for them to fear the law.A police investigation was ordered on the complaint of Subramanian Swamy. After that, the Special Judge in Madras for the trial of offences under the Prevention of Corruption Act, 1988 1) took cognisance of the offence of possessing ‘disproportionate wealth’ against Jayalalithaa and 2) took cognisance of aiding and abetting the same against her aides – Sasikala, Sudhakaran and Ilavarasi. A trial commenced there.This case against Jayalalithaa and her 3 aides, who were also living with Jayalalithaa in her residence at No.36, Poes Garden, Chennai, has nothing to do with the territory of Karnataka. However, evidence emerged that the prosecution witnesses were being intimidated in Madras. Hence, in November, 2003, the Supreme Court transferred that entire case from Tamil Nadu to Karnataka. The Karnataka government had to replace the Tamil Nadu Government as the prosecutor and the trial had to be held in Bangalore.On 27th September, 2014, 11 years after the transfer to Bangalore, a Special Judge convicted all the four accused to 4 years in jail. The prosecution charges were upheld. Also, a fine of Rs.100 crores was imposed upon Jayalalithaa. Her 3 aides were imposed a fine of Rs.10 crores each. This very judgment was upheld by the Supreme Court excepting the part relating to Jayalalithaa.The Trial Court had held that:1) Jayalalithaa could only show an income of Rs.9.91 crores during the period under consideration – 1-Jul-1991 to 30-Apr-1996.2) However, she had amassed substantial wealth during this period amounting to Rs.63.51 crores3) She was unable to explain wealth to the extent of Rs.53.60 crores (Rs.63.51 – Rs.9.91 crores). This is thebasic finding of the Trial Court.All the four convicts then appealed to the High Court of Karnataka. In a relatively and unusually short period of 8 months, the High Court set aside the conviction of the Trial Court in its entirety and set free all the accused. On 11-May-2015, the High Court had held that1) The Trial Court had wrongly determined the wealth of the accused.2) The Trial Court had wrongly determined the income of the accused.Finally, the High Court held that:1) Jayalalithaa was able to show an income of Rs.34.76 crores during the test period and the Trial Court was wrong in showing it only as Rs.9.91 crores2) Jayalalithaa’s wealth came to only Rs.37.59 crores and not Rs.63.51 crores as determined by the Trial Court.Consequently, the High Court held that 1) the unexplained wealth of Jayalalithaa came only to Rs.2.82 crores (Rs.37.59 – Rs.34.76 crores) and not Rs.53.60 crores as determined by the Trial Court.Even then, the High Court was faced with an unexplained wealth of Rs.2.82 crores in Jayalalithaa’s hands.Inflation, differences in valuation and lack of consistent accounting practices have been often taken into account by the courts to say that when unexplained wealth is less than 10�f one’s income, the court may give the benefit of doubt to the accused in such cases. Accordingly, the High Court held that Rs.2.82 crores inunexplained wealth of Jayalalithaa was only 8.12�f Rs.34.76 crores, her wealth as determined by the High Court.Accordingly, the case against Jayalalithaa and her 3 aides was closed by the High Court.The Karnataka Government appealed to the Supreme Court and this week, the Supreme Court set aside the judgment of the High Court and has restored the judgment of the Trial Court. Of course, as Jayalalithaa is dead, the judgment of conviction is only applicable to Jayalalithaa’s aides – Sasikala, Sudhakaran and Ilavarasi. Also, the penalty of Rs.10 crores against each of these three persons imposed by the Trial Court is also restored by the Supreme Court. However, the Supreme Court has not said much about the penalty of Rs.100 crores that was imposed upon Jayalalithaa by the Trial Court. However, in principle, by reason of this judgment, the estate of Jayalalithaa becomes liable to satisfy the state to the extent of Rs.100 crores.Both the Trial Court and the Supreme Court had taken note of the fact that Jayalalithaa’s aides were strangers to her but were residing with her. There was also evidence of government machinery abused to locate and acquire certain properties. And, a total of 32 companies were floated by these persons during the period underconsideration and many of these companies had no real or genuine business except to facilitate illegalacquisition of wealth by Jayalalithaa and her aides.In recent decades, no other case of corruption in India has consumed as many hours of judicial time. And, the principles of law laid down in this case by the Trial Court and affirmed by the Supreme Court are likely to be cited in a large number of future corruption prosecutions. The Supreme Court has disapproved the judgment of the High Court. The volume of the judgments is as under: Trial Court (1136 pages), High Court (919 pages) and Supreme Court (570 pages). The trial involved: 1) 259 witnesses for the prosecution, 2) 99 witnesses for the defence 3) 2341 distinct documents for the prosecution 4) 384 documents for the defence 4) 1606 objects or materials for the prosecution.The Supreme Court has held in this case that it will not take into consideration the gifts shown by Jayalalithaa in explanation for her wealth. It ruled that the law on 'disproportionate wealth' would be defeated if the court were to treat unexplained gifts as a legitimate source of income. This is a significant finding that will reverberate in future corruption cases as well.Also, the Supreme Court has held that the court trying a disproportionate wealth case should not automatically trust the Income Tax Returns. In this case, it refused to accept the figures shown by Jayalalithaa in her Income Tax Return as her agricultural income. The Trial Court had reached a conclusion that the amount shown in her IT Return appeared to be fraudulent in view of the court’s finding that the agricultural land in question could not have generated the revenue shown by her. The Supreme Court has approved this finding of the Trial Court. In fact, the Supreme Court has adopted the various findings of the Trial Court in its entirety.The Supreme Court also disapproved a few of High Court's observations. 1) Lowering of marriage expenses 2) Increasing the construction cost of certain buildings. The Supreme Court has held that the High Court made a grave mistake in these two aspects by improperly relying upon evidence that was suspicious or unworthy of judicial acceptance.The judgment of the Supreme Court was delivered by a bench of Justices Pinaki Chandra Ghose and Amitava Roy. Also, Justice Amitava Roy wrote an additional and a separate judgment to speak about the disgusting and disturbing manner in which the corrupt in this country were amassing wealth through their aides. This additionaljudgment is a wake-up call to the anti-corruption prosecutors across India to fearlessly identify and prosecute the disproportionate wealth in the hands of chronically corrupt public servants.(I have no involvement in this case).Author: KV Dhananjay, Advocate, Supreme Court