Has Heaven's malice granted Jayalalithaa's political prayers?
How India's Supreme Court Charter of Corruption saved the former Tamil Nadu Queen Bee from jail
Asun of hope may have lit the faces of all those who face corruption charges and fear imminent arrest in Lanka, as Tamil Nadu's former Chief Minister Jayalalithaa Jeyaram walked free from her prison cell on Monday after a High Court judge acquitted her of all convictions, clearing the way for her return to political power.
As lamps were lit in kovils and homes, as coconuts were dashed on Chennai streets, as poojas were made to her posters on sidewalk walls; and as her devotees went into a frenzy of worship hearing the breaking news in the midday sun, this former sex siren of the Tamil screen turned Tamil Nadu Chief Minister declared, in her new martyred role as the sainted Avatar of Innocence: "I have been tested and I have been found to be real gold."
Barely ten months ago last year in September, a trial court had found her guilty in an Indian Rs 664 million disproportionate assets case and had sentenced her to 4 years in prison and had slapped a fine of Rs 1 billion. It had also meant an end to her political career and the chances of her regaining her lost power were doomed. The writing on the wall made it clear: there was no comeback for the woman whom her fans had turned into a living goddess and called her Amma, the great Mother. It seemed the end of the road for her
But then religious India is a land of miracles.
In scenes similar to the 'Bring back Mahinda' campaign launched by diehard Rajapaksa supporters in Lanka, corruption convict Jayalalithaa's sycophant brigade used every means at their command to whitewash her disgrace and present her as the new immaculate Madonna. Millions were spent on public image building through careful crowd manipulations; sections of the media owned by her powerful party supporters were harnessed to draw her campaign wagon and to paint her white as the innocent victim of conspiracy; and even the divine deities were not spared but fervently invoked from their celestial abodes to rise to her rescue and stage a dramatic jail break for prisoner Jayalalithaa in VVIP Cell number 23 in the Central Prison at Parappana Agrahara.
On the streets, orchestrated by motivated party bosses, public prayers and devotion were rife. 'She is Amma, right or wrong' and with that message trumpeted from every squalid hovel to reach the high heavens itself, the stigma attached to her conviction for public corruption paled into insignificance. Votive offerings were made and prayers for her acquittal were said at many Tamil Nadu state administered temples for the last ten months.
The poor were fed free; thousands of lamps were ritually lit; countless milk pots were offered; fertility rites of offering germinating seeds were conducted; vows were made to eat food off the mud floor and yajnas, with Vedic mantras ceaselessly chanted before the ritual fire where the Fire God Agni resides were held to invoke divine intervention to correct a terrible wrong done to their earthly Amman.
If that didn't suffice, it was the turn for hard core penances to make Heaven's throne rumble and make the King of the Gods to feel his seat's heat. Some endured the practise of self mortification rites. People pierced their bodies with iron hooks and performed hook swinging. They walked on fire, they carried burning fire pots and each and every act of painful devotion was painstakingly shown on Jaya TV channels ad nauseam. Oh, lest it be forgotten, as Jayalalithaa herself mentioned in her thank you message, 233 poor Tamil Nadu souls committed suicide or, as prison slang would put it, 'did the Dutch' in her name. Four of them had taken their lives just the day before the miracle verdict.
On Monday morning at 11.35 am, her devotees prayers were answered. It took less than ten seconds for a single judge to announce her freedom and bring her back from the politically dead. But has she risen from her graveside dust only to return to a more wretched and more permanent sepulchre?
For even before the ink had dried on the 919 page judgment delivered by the High Court judge in the case Justice C.R. Kumaraswamy, questions were being asked as to the correctness of the legal basis upon which the wholesale acquittals of Jayalalithaa and her three accomplices were so brusquely made.
As the celebrations by the Jayalalithaa devotees continued nonstop on the streets, Special Public Prosecutor B.V. Acharya, slammed the High Court proceedings as being a 'one sided affair'. "Counsel for the accused was allowed to make oral arguments," he said, "for nearly two months, but we were denied permission to make oral arguments which were crucial. The principles of natural justice were denied to the prosecution during the appeal proceedings."
Basically Jayalalithaa had been charged and convicted on having disproportionate assets to her income. At the trial, the prosecution had successfully proved that her assets amounted to Rs. 664 million. Included were costs of construction to her home and other properties which amounted to Rs 277 million and expenses made for foster son's wedding celebrations were placed at Rs 64 million.
But the High Court Judge held that these figures proved in the trial court were way over the top. He held it to be exaggerated. He arbitrarily applied his own standards of valuations and slashed the construction costs from 277m to 52m and the marriage expenses the Tamil Nadu Chief Minister spent on the wedding celebrations of her foster son which were held for many days from 64m to a mere 2.5 million. The end result was that the assets of Jayalalithaa were valued by him at Rs 375 million compared to her income from various firms and companies determined at Rs 347 million. The disproportionate assets over declared income was Rs 28 million. "It's a relatively small amount," he declared in his judgment. "and can be ignored."
It also turned out to be so conveniently small enough to come within the legal permitted amount to legally justify Jayalalithaa's acquittal.
For after dabbling with arithmetic and coming up with the figures, the honourable High Court Judge tried his hand at applying the law. His authority stemmed from the decision arrived at by the Supreme Court in the Krishanand Agnihotri Case of 1977 which held that disproportionate assets to the extent of 10 percent merits no punishment. And lo and behold, what did a further spot of arithmetic come up with: It showed that Rs.28,236,812 x 100/Rs.347,665,654 equalled 8.12 percent. And with that Jayalalithaa walked free to meet a new sunrise, crowned with a halo of innocence to boot, courtesy of Justice C.R. Kumaraswamy.
True enough the judge was bound by the Supreme Court decision in the Krishnanand case. Furthermore, the Supreme Court had affirmed its view in two other cases. In 1981, in the Wasudae case, it held that all the accused had to show was a '"preponderance of probability" that he could come into possession of the assets. In the Pollonji case in 1987, the apex court held that where there was only a marginal excess in assets, the accused should be given the 'benefit of the doubt'.
But much water has flown since the 10 per cent immunity concept was first introduced in the 38 year old case of Krishanand. And the Supreme Court was beginning to view the matter in more realistic light. In 2005, in Anantha Ramulu V. State Of Madhya Pradesh Of 2005, the Supreme Court dismissed a case of corruption against a public servant who had Rs. 263,000 over his declared income. It held that if this was the case then every government official would be in jail. Even though it followed the Krishanand 10per cent ruling, there seemed a tacit recognition that social factors too played a part and it opened the doors for courts to hold that if Rs. 200,000 was too small an amount to be considered sufficient to deserve punishment then a larger amount, though it came within the 10 per cent cut off, may also be held as too large to escape punishment.
Then in 2011 came the judgment of Madhya Pradesh High Court in the Kamal Lal Gharde case. The Madhya Pradesh High Court referred to the Supreme Court judgments of the Pollonji and Ramulu cases and held that the question of disproportionate being meagre or moderate deserved to be ignored as a probable fault of calculation. Instead, it held the onus should be given to the nature of offence and its social impact.
Though, being a High Court judgment, it did not have the binding force of a Supreme Court ruling, it marked the turning point in the attitude held until then towards corruption by public officials and politicians.
The question is can the judgment in the original case of Krishanand made 38 years ago in different circumstances hold water any longer when the Indian Supreme Court itself declared recently that 'corruption is an enemy of the nation' and declared a policy of 'zero tolerance' towards it?
Doesn't a Supreme Court's legal immunity granted for a 10 per cent difference between one's known income and estimated expenditure confer upon the individual a licence to increase his hoard of ill gotten gains with impunity and without fear of punishment? And shouldn't it have struck the learned judges in India's apex court the ludicrousness it would lead to? That it is tantamount to a licence that extends in relation to one's declared income? That the richer you are the more you are allowed to make illegally, with the Supreme Court clapping your illicit endeavours with both hands?
For instance a man who declares assets amounting to Rs. 100,000 can acquire a further Rs. 10,000 with no questions asked. If a man's declared assets are Rs. 1 billion, he can accumulate a further Rs. 100 million without having to explain how he got it? If his assets are Rs. 10 billion, he can make Rs. 1 billion and tell any snoopy financial unit investigator in India to go and jump in the Ganges for all he cares, for no charges of robbing public money can attach to him. This is India's Supreme Court Charter of Corruption that legitimises the covert actions of any local Mr. Ten Per Cent who would not have to languish in remand cells or remand hospitals due to this immunity.
But the judge did not consider any of these issues as being worthy of his time. Regrettably, it did not cross his mind to consider the need to view Jayalalithaa's corruption case by the nature of the offence and its social impact as adjudicated in the most recent case of Kamal Lal as the most rational approach to take. He had bent over backwards to cut the trial court determined figure of Rs. 664 million down to Rs. 375 million, which helped in bringing down the disproportionate sum 536 million to 28 million - well within the 10 per cent ruling.
In the voluminous 919 page judgment he found no space to ponder over the social consequences. Instead the judge devoted over 150 pages to raise each transaction, then to consider each explanation tended by Jayalalithaa and then to rule on it favourably. Even the 12,000 saris and the hundreds of footwear found in her almirahs at home were not seriously taken into account by the judge who held that since four people lived in the house the prosecution had failed to identify which sari and slipper belonged to Jayalalithaa and which didn't. Nothing much was made either of the discovery of 28 kilos of gold and 800 kilos of silver discovered at Jayalalithaa's home.
To the High Court Judge, Jayalalithaa's unaccounted 28 million cache was peanuts, pin money and, even if it involved public corruption, she was not guilty for it fell within the excusable 10 percent limit, according to his own evaluations and calculations.
Already the opposition has claimed foul. And the original complainant Subramanian Swami has already announced his intention of appealing to the Supreme Court. The Karnataka State is presently studying the case and will announce its decision shortly.
The problem with Jayalalithaa's not guilty' verdict is that, while the judge has taken a liberal view and held that a marginable excess less than 10 per cent is not punishable, other higher courts have repeatedly taken the position that judging a disproportionate asset case is not merely matter of arithmetic but one that must be considered in the light of its social impact. In the backdrop of the Supreme Court's modern position of labelling corruption to be 'the enemy of a nation' and its' vow to show 'zero tolerance', it is likely that Jayalalithaa may face another spell in jail.
Have the devotees' persistent prayers only been granted by Heaven through sheer malice? Have the Gods cruelly raised her hopes by deluding her with a miracle release only to dash her with far greater ignominy to the ground in the manner of the coconuts now been dashed on Chennai streets in thanks; and make the Supreme Court shove her into jail again? By attempting to bribe the deities to cover up her sins in her insatiable lust for power, has she succeeded only in unleashing the Furies of the Gods?
Perhaps she, too, realises how tenuous her position is. And how this burst of euphoria from her devotees can plunge into negative depression should the Supreme Court deem it fit to remove the halo around her sainted head. Amidst the revelry on the streets, there seems to be no public show of rejoicing at her Poes Garden, residence and Jayalalithaa has wisely kept a surprisingly low profile in the manner of a woman who instinctively knows how fickle the fates can be.
For Justice C.R. Kumaraswamy these may not be the best of times either. His astonishing judgment though packed with precedents and arithmetical calculations, may have failed to interpret Section 13 of India's Prevention of Corruption Act of 1988 which states that a public servant should be able to prove that assets owned or controlled by him or her are attributable to proven, lawful sources. His judgment has run into a barrage of protest and has cast aspersions not only on his own moral rectitude but also on the general soundness of the Indian judiciary. It only goes to show that however perfect a legal system is, it is the integrity of the men who occupy its important positions that determine its character and justify the trust and faith the public repose in it.
On April 27th, 14 days before the High Court delivered its judgment; a three bench judge of the Supreme Court heard a related issue in the Jayalalithaa case. Delivering judgment Justice Misra quoted two apex court verdicts on corruption by public servants and, spelling the duty of a judge, declared that "corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons" is a vital mandate given by law to prevent corruption.
It is an observation for judges the world over to read and follow when it comes to dealing with corruption cases. When courts are made the battlefield and corruption, the enemy of the nation, having invaded the arena determines to stay on its soil waging war to protect its spoils, it is not the time for the Field Marshalls of Justice to sheath their swords through fear the dew would rust it. It must be drawn and raised not only to flay the vile and wily enemy but also to vigorously defend the millions of innocent, invisible victims of public officials' plunder of their wealth. Judges must realise it is the hour of reckoning. Not the time for a gentle game of croquet for the genteel on a lazy mid May afternoon.
The problem with Jayalalithaaa's not guilty' verdict is that, while the judge has taken a liberal view and held that a marginable excess less than 10 per cent is not punishable, other higher courts have repeatedly taken the position that judging a disproportionate asset case is not merely matter of arithmetic but one that must be considered in the light of its social impact. In the backdrop of the Supreme Court's modern position of labelling corruption to be 'the enemy of a nation' and its' vow to show 'zero tolerance', it is likely that Jayalalithaa may face another spell in jail.