360 Degree: A comprehensive judgment at last

A historic verdict by the supreme court in a high-profile disproportionate assets case last week came not only just in time to avert a possible constitutional embarrassment in Tamil Nadu, but also stirred up a hornet's nest on a much prized political legacy which late Chief Minister J. Jayalalithaa so zealously guarded for close to three decades

It has taken 21 long years and 1136 + 919 + 563 + 7 pages for the message to seep into the political class that probity in public life is not a faculty that was lost so long ago that it cannot be restored. In a stinging verdict from the judicial pulpit - two judges of the Supreme Court (Justices J.C. Ghose & Amitava Roy) have rung the bell that it was time for the canker of corruption to be dealt with by a firm hand. It teaches us that you may be ever so high and yet the law will catch up with you.

VK Sasikala has been stopped in her tracks to becoming chief minister and the body blow comes to us a nuanced vindication of the ‘non decision’ of the TN Governor as Tamil Nadu’s hour of constitutional glory or shame simultaneously play out on the national canvas. The politicos are issuing statements welcoming the SC judgment as opportunity to cleanse the polity of tainted elements while the people of India are heaving a sigh of relief and doffing their hats to Judge Michael Da Cunha.

The judge, singularly and painstakingly, worked like a hermit while wading into a maze of facts, figures and numbers masquerading as oral/documentary evidence and in 1,136 pages decimated the high and mighty. His judgment has been latched on to by the SC in its 563 + 7 page decision of an epoch-making genre. The long wait and 2,625 -page journey  would be  worth its weight  if it does result in realisation among the governing lot that self-aggrandisement and indulgence in  amassing wealth were no longer on.

It was on Sept 27, 2014 that Da Cunha delivered his magnum opus. Regretfully, it was trashed without care or concern in a 919-page dissertation of dubious integrity by Judge Kumarasamy of the Karnataka HC on May 11, 2015. It needs to be flagged as an hour of glory for the subordinate judiciary, never given its due, that the SC paid handsome encomiums to Da Cunha, saying “that the trial court was meticulous, sensitive, vigilant and judicious in appraisal, stands authenticated”.  The top court has come in for high praise now, but the real credit ought to go to the ‘Man of the Match’ - Da Cunha. Da Cunha’s judgment was thoughtlessly overturned by the High Court, whose judgment abounds in pathetically glaring arithmetic errors, duplication of loan income, faulty use of I-T returns & gifts as valid sources of income. Not to forget the fiery debate that the verdict unleashed on use of the 10% rule - the quantum of disproportionate assets an accused is allowed before it ripens into an offence - as used in the much abused Krishnanand Agnihotri judgment. Honestly, it was easy pickings for the apex court to merely compare and contrast the approaches of the trial court and appellate court and aided by the failure of the accused to neither press for remand to the High Court nor assailing the finding on clubbing of the income of A1 to A4. The slap on the face of the findings of the High Court was too sharp for the confirmed convicts to answer.

The morphing of the 1947 Prevention of Corruption Act (PCA) into its 1988 avatar with a Parliamentary mandate to go after the corrupt by widening its scope and re-enforcing the provisions was latched on to by the top court to zero in on the fault lines in the HC order to ‘restore the trial court’s order in toto’. As for the legal issues confronted, a rare reversal of acquittals came about on taking into account the blatant absence of a reasoned examination of the evidence by the high court, which gave an easy entry for the bulldozer of the top court to weigh in with conviction.

Read: Tamil Nadu Quo Vadis!

The repetitive refrain of the accused that mere close proximity of A1 to A4 was no presumption of conspiracy was mocked at by ‘the unimpeded, frequent and spontaneous inflow of funds from the account of A1 to those of the other co-accused and the firms/companies involved, overwhelmingly demonstrate the collective culpable involvement of the respondents in the transactions  in the face of their overall orientations so as to render the same to be masked banking exchanges though involving several accounts but mostly of the same bank. No other view is possible”. Thanks to the focused and microscopic vision of Da Cunha, the stark nakedness in the findings of the high court was shamefully exposed by the top court. The HC’s   failure to note the “noticeable integration of A1 to A4 and their joint residence as a formidable indicator of conspiracy and abetment” shook the SC. The cleavage in opinion on the impact of the I-T returns assessed, as emanating from genuine sources of income, has been given a decent burial long overdue. Adverting to a catena of decisions on this critical issue, the SC has settled it, possibly for good, that no  reliance could be placed on I-T returns to ‘satisfactorily’ (expression in PCA) explain known sources of income. In pungent terms, the decision in N. Suresh Rajan (relating to a TN Minister) was recalled, “This Court reflected that in such an eventuality it will give opportunities to the corrupt public servant to amass property in the name of a known person, pay income-tax on their behalf and then be out from the mischief.” A mortal blow to many a mischief monger!

Particularly telling and galling to the politicians may be the restoration of the finding of the trial court that gifts received by A1 would not constitute a lawful source of income. Despite its hesitation, the high court fell for the bait that politicians did enjoy such benefits from their party men on birthday, etc. The Supreme Court found it ‘unconvincing’. Political parties may do well to read this portion of the order very carefully lest they continue to indulge in their regular ways of explaining income.

The SC has held conclusively that 8.12% computation by the HC as ‘completely wrong reading of the evidence on record compounded by incorrect arithmetical calculations”. On each and every count, the ‘counting’ by the HC was held to be faulty and the trial court’s conclusions workmanlike. The factual carpet woven so ‘meticulously’ by Da Cunha enabled the judges to drape it as to cover over a tainted polity.

The sweep of the verdict is astounding. The impact it ought to have may be different from what it may actually have been considering that a confirmed convict’s choicest pick is the nominee for CM. The seven-page concurring silo from the junior judge is recommended reading for its undecipherable mumbo-jumbo. Alas what he intends to add ‘that the silent majority ought to treat the verdict as a wake-up call to insist on probity in their leaders’ is lost in language.  On this verdict, a retired judge mailed-/moaned “Yes the verdict is great. But the convicts may be laughing and wondering why only Rs 66 crores. What of the rest of the billions”. Hope the message of this verdict is not lost on We the People or in cynicism, for it would be a costly price to pay against eternal vigilance.

(The writer is a practising advocate at the Madras High Court)