Little choice

B.V. Acharya.

THE Karnataka government has finally decided to file a special leave petition (SLP), under Article 136 of the Constitution, in the Supreme Court challenging the acquittal of Tamil Nadu Chief Minister Jayalalithaa and three others in the 19-year-old disproportionate assets case. Legal experts see the decision, which came on June 1, as a fait accompli since the special public prosecutor (SPP), B.V. Acharya, the State’s Advocate General (AG) Ravivarma Kumar, and the Law Department had all strongly recommended that the State should appeal. (Karnataka is the Supreme Court-designated prosecuting agency in the case.) The State government thus had little choice but to appeal against the Karnataka High Court’s May 11 verdict exonerating Jayalalithaa and the others of all corruption charges.

Law Department officials said that the SPP and his junior advocate in the case, Sandesh J. Chouta, authorised by the Supreme Court, would file the SLP through one of the State government’s “advocates on record” (standing counsel) in New Delhi in the first week of July when the court reopens after the summer vacation. It is a time when the court takes up urgent matters. Legal experts believe that the apex court is likely to admit and hear the case expeditiously, in keeping with the general trend in corruption cases.

The Karnataka High Court’s decision, which dramatically overturned the trial court’s verdict, has been seen by many legal pundits, including Acharya, as being riddled with legal and arithmetical flaws. In particular, Justice C.R. Kumaraswamy’s methodology in computing the quantum of disproportionate assets is seen as problematic. While the trial court’s calculation (page 852 of the judgment) of 10 loans taken by Jayalalithaa, the three others and their firms from nationalised banks amounts to Rs.106,731,274, the learned judge of the High Court totalled these at Rs.241,731,274. This grave miscalculation, according to Acharya, resulted in the acquittals. A corrected computation would push up the quantum of disproportionate, unexplained assets to 76.76 per cent, way beyond the 8.12 per cent assumed by the High Court.

The controversial order also suffers from legal infirmities such as including high-value cash gifts received from persons who later chaired government boards and corporations as legitimate income; and recognising as legitimate a debatable newspaper subscription scheme that had been established as fake by the trial court.

Commenting on the decision to appeal, Acharya said: “The government has gone strictly on the legal merits of the case and the advice of the Law Department, the AG and myself. This is a fit case for an appeal.” Legal experts explained that it was not enough for Karnataka to say that it had already discharged its duties by setting up a special court, hosting the trial and appointing a Special Judge and an SPP. A former AG said: “With the Supreme Court clearly stating that Karnataka is the sole prosecutor in the case it has a constitutional right to file an appeal. It cannot abandon the legal process midway.”

Amid speculation that the Karnataka government was not keen on filing an appeal because of political and other considerations, the State’s Law and Parliamentary Affairs Minister T.B. Jayachandra sought, through the Law Department, two legal clarifications from the AG. This move, which came after the SPP and the AG had given their recommendations, were seen as “delaying tactics”.

What the Law Department wanted clarified was whether sanction from the competent authority was necessary for filing an appeal and whether the consent of the Chief Justice of the Karnataka High Court was necessary to appoint an SPP to argue on behalf of the State before the Supreme Court. Ravivarma Kumar felt it would be a “great travesty of justice” to allow the High Court’s acquittal of Jayalalithaa to become “final” by not appealing. He pointed out that requirement of any “sanction from a competent authority” was absurd since the question of sanction arose only at the prosecution stage, in particular, prior to taking cognisance of the offence against a public servant. He pointed out that it was the constitutional right of the government to file an appeal and that consent from the Chief Justice to appoint an SPP was also not needed as the State had the power to do so under the Karnataka Law Officers (Appointment and Conditions of Service) Rules, 1977.

Legal experts pointed out that the Governor of Tamil Nadu had granted “sanction” for Jayalalithaa’s prosecution. That was way back in 1997, and without it the court could not have proceeded against her. The validity of that decision was upheld in 1997 by both the trial court and the Madras High Court.

Denying any delay on the part of Karnataka to file an appeal, Jayachandra told Frontline : “Legally we had 90 days to file an appeal and we have done it well within that period. I had sought some clarifications from the AG. Once the clarifications came and the Cabinet met we took a decision. So where is the question of a delay?” He also insisted that the Congress high command was in no way concerned, nor was it consulted on the question. “This is a State matter, not a party matter, so where is the need to seek advice from the high command?”

The Minister also said that the Supreme Court, when transferring the case to Karnataka in 2003, had “trusted [the] high reputation of the Karnataka judiciary, and the State, as the prosecutor. “We are not against anybody. But we have been declared by the Supreme Court as the sole prosecuting agency and we cannot move away from this responsibility. Legally we have no choice but to appeal and take the case to its logical end.”

Ravi Sharma