D.A. case

A trial of two decades

Print edition : March 17, 2017

Jayalalithaa arriving at the Special Court near the Central Jail in Parappana Agrahara, Bengaluru, on September 27, 2014, in connection with the disproportionate assets case. Photo: V. Sreenivasa Murthy

V.K. Sasikala (right) and her sister-in-law J. Ilavarasi when they came to appear before the Special Court in Bengaluru in April 2014. Along with V.N. Sudhakaran they are co-accused in the case. Photo: K.Gopinathan

V.N. Sudhakaran. Photo: S. S. Kumar

Subramanian Swamy. He sought sanction from the Governor to prosecute Jayalalithaa under the Prevention of Corruption Act. Photo: Shiv Kumar Pushpakar

M. Channa Reddy. As Tamil Nadu Governor, he gave santion to Subramanian Swamy to prosecute Jayalalithaa on corruption charges. Photo: THE HINDU ARCHIVES

K. Anbazhagan, Dravida Munnetra Kazhagam leader. He impleaded himself in the case as an intervener. Photo: B. Jothi Ramalingam

B.V. Acharya, Special Public Prosecutor in the case. Photo: V. Sreenivasa Murthy

John Michael D'Cunha, Special Court judge.

Justice C.R. Kumaraswamy of the Karnataka High Court, who acquited all the four. Photo: K. Gopinathan

The timeline of the “disproportionate assets” case against Jayalalithaa reveals the evasive tactics she employed to delay the trial and the verdict.

PERHAPS no other case in independent India has attracted so much attention and witnessed such dramatic twists and turns as the disproportionate wealth case against Jayalalithaa and her co-accused. If the accused used every stratagem in the book to drag the trial for 20 years, they underestimated the resilience of K. Anbazhagan and B.V. Acharya, who fought every inch of the way to get them punished. Anbazhagan, 94, general secretary of the Dravida Munnetra Kazhagam (DMK), was the intervener in the case and Acharya, 81, was the Special Public Prosecutor (SPP). Acharya is a five-time Advocate General of Karnataka.

On February 14, Justices Pinaki Chandra Ghose and Amitava Roy of the Supreme Court applied the closure to the case when they found Jayalalithaa guilty (posthumously; she died in Chennai on December 5, 2016) of conspiring with V.K. Sasikala, V.N. Sudhakaran and J. Ilavarasi to amass wealth disproportionate to her known sources of income when she was a public servant, that is, the Chief Minister of Tamil Nadu from 1991 to 1996. Besides, the judges restored the trial judge Michael D’Cunha’s conviction and sentencing of the three co-accused “in toto”. D’Cunha, who is now a judge in the Karnataka High Court, had sentenced Sasikala, Sudhakaran and Ilavarasi to four years’ simple imprisonment and a fine of Rs.10 crore each.

“Jayalalithaa and her co-accused employed so many tactics to delay and drag on the trial in the ‘disproportionate wealth’ case against them. How can I list all of them?” said R. Shanmugasundaram, senior advocate, who appeared against Jayalalithaa and the other accused in the case. The very first delaying tactic that she employed was to challenge the sanction accorded by Governor Dr M. Channa Reddy on March 25, 1995, to Subramanian Swamy, then the Janata Party leader in Tamil Nadu (he is now with the Bharatiya Janata Party), to prosecute her under the Prevention of Corruption Act (PCA). She sought more than 300 adjournments in the case.

The Directorate of Vigilance and Anti-Corruption (DVAC), Tamil Nadu, which was the investigating agency in the case, filed the charge sheet on June 4, 1997. The trial took place in a Special Court in Bengaluru according to the Supreme Court’s orders. The DVAC named Jayalalithaa the first accused in the case and Sasikala, Sudhakaran and Ilavarasi the second, third and fourth accused respectively. The case was that Jayalalithaa had amassed wealth worth Rs.66.65 crore, disproportionate to her known sources of income when she was Chief Minister (and hence a public servant) from 1991 to 1996 and she was charged with offences under the PCA and the Indian Penal Code. It said Sasikala, Sudhakaran and Ilavarasi abetted the Chief Minister in this.

Witnesses turned hostile after the All India Anna Dravida Munnetra Kazhagam (AIADMK), headed by Jayalalithaa, returned to power in 2001. After she became Chief Minister again in May 2011, the delaying tactics continued. G. Sambandam, a Deputy Superintendent of Police of the DVAC, wrote to the Special Judge that it had taken up further investigation in the case against Jayalalithaa and the other accused. She delayed the trial further by insisting that she should be exempted from appearing personally in the court for questioning, Shanmugasundaram said.

Exasperated by the delaying tactics adopted by Jayalalithaa and the co-accused, Chief Justice of India H.L. Dattu asked her lawyer Fali S. Nariman: “...How many years did you take to complete the trial?” He replied: “Far too many, my Lord.”

Nariman’s admission came on October 18, 2014, when he pressed for bail for Jayalalithaa and the co-accused who were convicted and sentenced to four years’ imprisonment each by Special Court Judge D’Cunha on September 27, 2014. They were in judicial custody when their bail applications came up before a three-member bench of the Supreme Court comprising Chief Justice Dattu, Justice B. Madan Lokur and Justice A.K. Sikri. Nariman argued that Jayalalithaa’s continued imprisonment when her appeal in the Karnataka High Court against her conviction and sentencing was pending would cripple her “valuable right of appeal against her conviction” and reduce it to an “exercise in futility”. Chief Justice Dattu, however, said: “So if we pass orders to suspend your sentence now, you will take another two decades to finish the appeal. Should we not take into consideration the conduct of the accused in the Special Court, in the High Court and even in the Supreme Court? The case went on for years and years and years.”

The genesis of the case lay in the permission accorded by Governor M. Channa Reddy to Subramanian Swamy on March 25, 1995, to sue Jayalalithaa for corruption. It was on April 1, 1995, that Swamy himself announced that he had received the Governor’s permission to take her to court under the PCA.

Governor’s sanction

On April 15, 1995, DMK president and former Chief Minister M. Karunanidhi and Anbazhagan presented to Channa Reddy a list of 28 charges of corruption against the Jayalalithaa government and requested the Governor to give them permission to prosecute Jayalalithaa and others named in the allegations under Section 200 of the Code of Criminal Procedure, or CrPC ( Frontline, May 5, 1995). No sooner had Swamy received Channa Reddy’s permission to sue Jayalalithaa than her tactics to ward off the prosecution began. She filed a writ petition in the Madras High Court challenging the Governor’s sanction. On April 27, 1995, a Division Bench dismissed her petition as not maintainable. The court ruled that the sanction to prosecute the Chief Minister was the Governor’s exclusive function to be exercised by him at his discretion. The court said there could be no difference of opinion that the permission to prosecute was only an administrative order and did not by itself affect the petitioner’s rights, much less her fundamental rights under Article 21 of the Constitution as she had claimed. If the argument that the permission letter affected her rights under Article 21 was accepted, there could be no prosecution of any citizen, the court observed.

A year later, in the May 1996 elections to the Assembly, the DMK trounced the AIADMK and Jayalalithaa herself was defeated in the Bargur constituency. Karunanidhi was sworn in as the Chief Minister and Anbazhagan became the Education Minister. On June 14, 1996, Swamy presented a private complaint before the Principal Sessions Judge, City Civil Court, Chennai, to prosecute Jayalalithaa under the PCA. He alleged in his complaint that her wealth was nil during 1989-90, Rs.1.89 crore the next year, Rs.2.60 crore in 1991-92, and Rs.5.82 crore in 1992-93. This was on the basis of a reply to a question of his in the Rajya Sabha. His own investigation showed that her wealth had risen to Rs.21.33 crore in 1993-94 and shot up to Rs.38.21 crore in 1994-95, he said.

By her own admission, Jayalalithaa drew a salary of Re.1 a month when she was Chief Minister from 1991 to 1996. Jayalalithaa, in league with Sasikala and her close relatives who lived with Jayalalithaa in her residence at Poes Garden in Chennai, had amassed wealth that was not commensurate with her known sources of income. This was criminal misconduct under Section 13(1)(e) of the PCA, said Swamy.

Section 13(1)(e) of the PCA says that a public servant is said to have committed criminal misconduct if he or any person on his behalf has money or property worth more than his known sources of income during the period he was a public servant and is not able to account for it satisfactorily. Section 13 (2) of the PCA says that “any public servant who commits criminal misconduct” could be imprisoned for not less than one year and that the jail term may be extended to seven years and he may be asked to pay a fine too.

The Principal Sessions Judge directed the police to investigate Swamy’s complaint. The DVAC became the investigating agency and N. Nallamma Naidu, Superintendent of Police, DVAC, was appointed the investigating officer. He filed a first information report (FIR) on September 18, 1996. Nallamma Naidu and the DVAC’s legal adviser K.E. Venkataraman formed a formidable pair.

Searches at Poes Garden

Searches by DVAC officials at Jayalalithaa’s residences at Poes Garden in Chennai and in Hyderabad from December 7 to 12, 1996, yielded proof of 32 shell companies. Sasikala, Sudhakaran and Ilavarasi were partners in these companies. Documents seized during the searches revealed that six of these shell companies had transacted no businesses other than buying land and buildings. Searches also showed that the four accused had acquired movable and immovable property and pecuniary resources such as bank accounts and fixed deposits after July 1, 1991. Nallamma Naidu’s work was so thorough that he collected challans and receipts from banks into which the accused had transferred money they had received from various sources, including the business enterprises or shell companies in which they were partners. The searches in Jayalalithaa’s residence unearthed hoards of gold and diamond jewellery, silver articles, scores of expensive wrist watches, thousands of saris, hundreds of pairs of footwear, a fleet of cars, documents and cash. The doors of Jayalalithaa’s residence were made of sandalwood ( Frontline, October 17, 2014).

Nallamma Naidu filed the DVAC’s charge sheet on June 4, 1997, before Special Court Judge P. Anbazhagan. It said Jayalalithaa and three of her associates had acquired a slew of assets worth more than Rs.66.65 crore during her tenure as Chief Minister from 1991 to 1996 and that their value was “disproportionate to her known sources of income”. Among the assets were bungalows in Chennai; farmhouses in Sirudhavur and Payyanur, near Chennai; land in Sholinganallur and Injambakkam, near Chennai; land in Velagupuram village in Tiruvallur district; vacant sites in Thanjavur; land and buildings in Thanjavur, Tiruchi and Mannargudi towns; several hundreds of acres of agricultural land at Oothukottai in Tiruvallur and Tirunelveli districts; Kodanad Tea Estate in the Nilgiris; a marriage hall; industrial units from the State-owned Tamil Nadu Small Industries Corporation (TANSI); farmhouses near Hyderabad; cash in bank accounts and investments in financial firms. They were all in Jayalalithaa’s name or in the names of the accused or firms in which they were partners.

Many property owners, including the music director Gangai Amaran, were forced to part with their property to the accused for a low rate. The story that did the rounds was that whichever property Sasikala took a fancy to had to be sold to her at low rates.

Jayalalithaa was charged with offences under Section 13(1)(e) read with 13(1)(2) of the PCA. The other accused were additionally charged with Section 109 (abetment) of the IPC. All the four accused were charged with Section 120-B (conspiracy) of the IPC. Nallamma Naidu cited about 900 witnesses and filed voluminous documents to back up his allegations.

A notice was sent to Jayalalithaa before the filing of the charge sheet, asking her to take note of the view of the investigating officers and explain how she came to acquire the assets so that the police could correct themselves if they were wrong. Jayalalithaa replied through her lawyer that she would explain only in court.

On June 5, 1997, Special Court-II Judge S. Sambandam took cognisance of the charge sheet. Later, Anbazhagan impleaded himself in the case as an intervener. He filed written arguments under Section 314 of the CrPC.

Trial hits roadblocks

The trial progressed smoothly as long as the DMK was in power from 1996 to 2001. But it hit a series of roadblocks once the AIADMK returned to power in May 2001 and Jayalalithaa became Chief Minister again. A new public prosecutor was appointed. After the trial resumed on November 7, 2002, witnesses who had earlier deposed against Jayalalithaa turned hostile. Sixty-four of the 76 prosecution witnesses against her and the other accused recanted their statements. The new public prosecutor did not declare them hostile witnesses. Jayalalithaa’s presence was dispensed with when she had to be cross-examined and a questionnaire was sent to her. Instead of simple “yes” or “no” replies, she gave lengthy answers running to several pages. It was clear that the Jayalalithaa government was making every attempt to derail the trial.

Anbazhagan filed a writ petition in the Supreme Court seeking transfer of the trial to a court outside Tamil Nadu. He said that with the prosecutor appointed by the State government conducting the trial in a manner in which prosecution witnesses turned hostile frequently, especially during cross-examination, the public feared that the trial was neither free nor fair. Besides, police officers in Tamil Nadu could not be expected to prosecute the cases against the Chief Minister diligently, the DMK leader said.

“The petitioner has made out a case that the public confidence in the fairness of the trial is being seriously undermined,” Justices S.N. Variava and H.K. Sema of the Supreme Court said about the delaying tactics used by the accused. “No attempt has been made to elicit or find out whether witnesses were resiling because they are now under pressure to do so. It does appear that the new public prosecutor is hand in glove with the accused, thereby causing a reasonable apprehension of likelihood of failure of justice in the minds of the public at large. There is a strong indication that the process of justice is being subverted.”

On November 18, 2003, Justices Variava and Sema transferred the trial from the Special Court in Chennai to a Special Court to be set up in Bengaluru, Karnataka. Thus, the Karnataka government became the prosecuting agency. The judges directed the Karnataka government to appoint an SPP, who would be approved by the Karnataka High Court, to argue the case against the four accused. The impleading application from Swamy was also allowed.

Justices Variava and Sema criticised the grant of dispensation from personal appearance given to Jayalalithaa, which is required under Section 313 of the CrPC, by saying: “Be you ever so high, the law is above you.” Her plea for exemption from being personally present to answer questions was “a ploy adopted to circumvent the due process of law”, the judges wrote in their order. They made it “clear” that “the accused must answer the questions by personally remaining present in the court”. They also expressed surprise at how Jayalalithaa was exempted from being personally present when she lived in Chennai and did not need to “undertake a tedious long journey” to be present in the court to answer questions.

The judges squelched the argument of K.K. Venugopal, counsel for Jayalalithaa, that Anbazhagan had no locus standi to file the petition. They called it an “argument of despair” and asserted that the claim that the DMK general secretary had filed the petition out of political vendetta had “no force”. They called political opponents in a democracy “watchdogs of the government in power”.

Turning point

The transfer of the trial to Bengaluru marked a turning point in the case. The trial began in Bengaluru with the appointment of Acharya, one of Karnataka’s most respected lawyers, as the SPP.

However, Jayalalithaa was soon back to her delaying tactics. Although her party had been defeated in the Assembly elections held in 2006, it captured power in the May 2011 elections. The DVAC, Tamil Nadu, quickly got into the act and G. Sambandam, its Deputy S.P., breaking protocol, wrote directly to the Special Judge that the DVAC had taken up further investigation in the wealth case against Jayalalithaa. The letter upset Acharya so much that he alleged before the Special Judge that the DVAC was colluding with the accused to prolong the proceedings in the case.

The Jayalalithaa government also ordered further investigation in the case in January 2012. This infuriated Justice Dipak Misra and Justice Bhandari of the Supreme Court. “By virtue of our order, all witnesses have been examined and recording of statements is in progress. How can any State government conduct further investigation at this stage in 2012? This is nothing but subterfuge for the trial that began in 2004 [in Bengaluru]. Section 173 (8) of the CrPC [relating to further investigation] has some sanctity. There has to be some genuineness. This is nothing but an attempt to frustrate the trial,” Justice Misra (who sat on the bench with Justice Bhandari) told her counsel on January 27, 2012. Justices Misra and Bhandari quashed the DVAC’s communication of June 25, 2011 ( Frontline, October 17, 2014).

Earlier, in October 2011, Jayalalithaa had fought hard to get an exemption from personally appearing in the Special Court at Parappana Agrahara near Bengaluru. She approached the Supreme Court for deferment of hearing saying that she was worried about her safety in Bengaluru and that the Karnataka government had failed to provide her adequate security. She wanted the trial to be held in a venue near the airport so that she need not drive the long distance from the airport to Parappana Agrahara. (It is about 50 km from the airport.)

This prompted Justices Bhandari and Misra to sarcastically ask her counsel: “You [Jayalalithaa] are a public figure. How can you remain away from the people?” The judges did not concede her plea to shift the trial to a place near the airport. “The helipad has been prepared. Once the hearing is over, fly back home,” they told her counsel.

Trial court verdict

On September 27, 2014, Special Judge D’Cunha ruled that he had no hesitation in holding that Jayalalithaa had accumulated all her ill-gotten wealth when she was Chief Minister from 1991 to 1996 and that it belonged to her and nobody else. He asserted repeatedly in his judgment that the real source of acquisition of wealth by the four accused was Jayalalithaa. He held that all the assets and pecuniary resources found in the possession of Sasikala, Sudhakaran and Ilavarasi and “in the names of various firms and companies” owned by all the four accused “actually belong to Jayalalithaa”. He tersely asserted that “the prosecution could show that there was no real source of income” with Sasikala, Sudhakaran and Ilavarasi and that “the public servant is the real source”.

Holding the four accused guilty under the PCA and the IPC, he sentenced each of them to four years’ simple imprisonment and a fine of Rs.100 crore on Jayalalithaa and Rs.10 crore each on the other three.

Following the verdict, Jayalalithaa was forced to give up her post as Chief Minister. Under Section 8 of the Representation of the People Act (RPA), 1951, anyone who is convicted and sentenced to imprisonment under the PCA stands disqualified from contesting elections for six years from the date of his/her conviction plus the period of sentence. This meant that Jayalalithaa could not contest the elections for 10 years.

Soon after the verdict, Jayalalithaa and the other accused were ushered into their cells in the Central Prison Complex, adjacent to the court hall, at Parappana Agrahara. Jayalalithaa thus became the first incumbent Chief Minster to be sent to prison on charges of corruption.

After Jayalalithaa’s counsel Nariman assured Chief Justice Dattu and Justices Lokur and Sikri that there would be no more attempts to delay their appeal in the Karnataka High Court against the conviction and sentencing, the judges suspended the sentences of all the four accused and enlarged them on bail on October 17, 2014. Thus Jayalalithaa, Sasikala, Sudhakaran and Ilavarasi spent three weeks in prison before they returned to Chennai.

Jayalalithaa, sans chief ministership, remained forlorn and inaccessible. O. Panneerselvam, Finance Minister and number two in the Cabinet, was appointed Chief Minister. However, Jayalalithaa and Sasikala remote-controlled the government from Poes Garden.

On January 5, 2015, Justice C.R. Kumaraswamy of the Karnataka High Court began hearing the appeals of the four accused against their conviction and sentencing by Special Judge D’Cunha. The DVAC, Tamil Nadu, again tried its hand at manipulation. It authorised Bhavani Singh, two days after Special Judge D’Cunha gave his verdict, to appear for the prosecution in the appeals before Justice Kumaraswamy. This was a red rag for the DMK, which had no confidence in Bhavani Singh. Anbazhagan, therefore, approached the Supreme Court.

A three-member bench headed by Justice Dipak Misra and consisting of Justices R.K. Agrawal and Prafulla C. Pant ruled on April 27, 2015, that the Tamil Nadu government (that is, the DVAC) “had no authority” to appoint Bhavani Singh as the SPP in the case. It asserted that only Karnataka, the sole prosecuting agency in the appeals, “was authorised to appoint the Public Prosecutor”. The bench directed Anbazhagan and the Karnataka government to file their written arguments before Justice Kumaraswamy by the next day, April 28. The Karnataka government brought back Acharya as the SPP to the consternation of the four accused. Acharya and Anbazhagan submitted their written arguments well before the deadline.

On May 11, 2015, Justice Kumaraswamy gave an “exhaustive and also thoroughly exhausting” judgment, as Sanjay Hegde, a Senior Advocate of the Supreme Court, called it, acquitting all the four accused in the case. The judge did his own calculation and concluded that the disproportionate assets accumulated by the accused were only 8.12 per cent above their known sources of income. He cited a Supreme Court ruling in the Krishnanand Agnihotri case that when the disproportionate assets were less than 10 per cent, the accused could be acquitted. The next day, Acharya exposed a “glaring arithmetical error” in Justice Kumaraswamy’s verdict. Justice Kumaraswamy had not only decided that the 10 bank loans taken by the accused were income but wrongly totalled them at Rs.24.17 crore. The correct total was Rs.10.67 crore. So Acharya said the disproportionate assets worked out to 76.70 per cent, 7.6 times more than the limit allowed in the ruling in the Krishnanand Agnihotri case.

After the Karnataka High Court acquitted Jayalalithaa, she contested a byelection from R.K. Nagar constituency in Chennai and won. She became Chief Minister again.

The Karnataka government, Swamy and Anbazhagan appealed in the Supreme Court against Justice Kumaraswamy’s acquittal of Jayalalithaa and her co-accused. Justice Pinaki Chandra Ghose and Justice Amitava Roy, who heard the appeals, reserved their judgment for June 7, 2016. Jayalalithaa, who took ill meanwhile, died on December 5, 2016. So the Karnataka government’s, Anbazhagan’s and Swamy’s appeals against her acquittal stood abated.

On February 14, 2017, Justices Ghose and Roy found Jayalalithaa, a public servant, guilty of amassing wealth beyond her known sources of income and the others for abetting her in this. They quashed Justice Kumaraswamy’s order and restored trial judge D’Cunha’s conviction and sentencing of the co-accused “in toto”. Sasikala, Sudhakaran and Ilavarasi are back in the Central Prison Complex at Parappana Agrahara. Sasikala cannot contest elections for 10 years. And the dream of Sasikala, who was on the cusp of becoming Tamil Nadu Chief Minister, lies shattered.