It is not just D-Day for VK Sasikala. It is D-Day for Tamil Nadu. And for the judiciary and the country’s leaders in the fight against black money. It has been 19 years since this singular case was filed by the Tamil Nadu directorate of vigilance and anti corruption (DVAC) in 1996 against former chief minister J Jayalalithaa, her close aide and confidante VK Sasikala, VN Sudhakaran (Sasikala’s nephew) and Ilavarasi (Sasikala’s sister-in-law), in that order of accused.
What was originally a case of the accused possessing assets disproportionate to their income — to the tune of Rs 66 crores — has, following the judgement of the trial court in Bangalore, now become a DA case worth Rs 58 crores. The verdict in the trial court in Bangalore was delivered by Judge Michael Cunha in 2014, convicting all four accused of holding disproportionate assets. He handed down a four-year jail term and a Rs 100 crores fine. Jayalalithaa, Sasikala and the others spent 21 days in jail in September 2014 before being bailed out. Jayalalithaa had to step down as chief minister and the current caretaker O Panneerselvam was her stand-in at the time.
In 2015, the case which was on appeal in the Bangalore High Court turned turtle. Judge Kumarasamy acquitted all four in the case. The Karnataka government, which was the prosecuting agency, decided to appeal against the High Court order in the Supreme Court. On 7th June, 2016, the Supreme Court finished hearing all sides in the matter and reserved verdict.
This case has been long and exhausting and has seen judicial loopholes stretched to impossible realms. It has all the ingredients of a potboiler too — a public prosecutor who quit trying the case stating that he could simply not handle the threats and political pressure on him, witnesses who turned hostile willy nilly, simple arithmetic errors in judgment, another public prosecutor who wasn’t one after all and finally, at the finale, the death of the public servant on whom the entire case hinged.
So what could happen in the case?
The cause list of the Supreme Court indicates that both the judges would deliver verdict separately. This could mean one of two things — two differing verdicts, also known as a split verdict or two verdicts that concur with each other in principle, but may have differing outcomes. Here are some scenarios that could arise tomorrow.
1. Split verdict: One judge could acquit and the other could find all three accused guilty or send the case back to the Bangalore High Court for a re-trial. In such a scenario, the appeal goes to a higher bench, meaning a bench comprising three judges in the Supreme Court itself. Politically, this means that Sasikala buys some time as the case runs its course on appeal. This would put added pressure on Tamil Nadu’s Governor-in-charge C Vidyasagar Rao to swear in Sasikala, since she currently has the majority of the MLAs on her side.
2. Concurring verdict: Both judges could feel that the Bangalore High Court’s verdict acquitting the accused is flawed. In this case ,there is a decision to be made — either send it back to the Bangalore High Court for a re-trial or rule on the acquittal itself. If the case goes back to the Bangalore High Court for a re-trial, Sasikala and others will revert to the status quo of the trial court verdict — which means they stand convicted for four years. “Even if the case is sent back to the Bangalore High Court, she is convicted,” says BV Acharya, Special Public Prosecutor, who is trying the case. If the judge decides to rule on appeal — meaning he treats the case as a final appeal and has to decide on whether the Bangalore High Court verdict is correct or not — that is the last and final appeal for Sasikala and family, who would have exhausted all legal options in the case. Either way, in both scenarios, Sasikala becomes a convict in the eyes of the law and is not eligible to contest elections for 10 years. This would mean that she loses the basic qualification to become a chief minister and it will be unthinkable for the Governor to even consider swearing her in. “We will need to wait for the fine-print of the judgment before arriving at what this will mean for the defendants,” says a senior Chennai-based lawyer. The best case scenario for Sasikala and family would, of course, be if both judges concurred on acquittal, paving the way for her to become the Chief Minister.
Issues before the apex court
The Supreme Court’s two-judge bench has a number of issues that it needs to decide upon, as per the appeal of the Karnataka government against the Bangalore high court verdict of acquittal.
1. Arithmetic errors: In page 852 of his over 1,000-page order, Judge Kumarasamy of the Bangalore High Court (now retired), has committed a glaring arithmetic error. This page contains a calculation of the loans taken by Jayalalithaa and co-accused and the HC judge sums up a figure of Rs 24,17,31,274 in his order. But the calculator actually reveals that the sum of the figures in that table comes to only Rs 10,67,31,274. Kumarasamy has taken this amount in calculations later in the order, to show that Jayalalithaa and others held the ratio of disproportionate assets to their income is only 8.12 percent. Then citing a judgement in the Krishnanand Agnihotri case, Kumarasamy acquits all four stating — “The percentage of disproportionate assets is 8.12 percent. It is relatively small. In the instant case, the disproportionate asset is less than 10 percent and it is within permissible limit. Therefore, Accused are entitled for acquittal. When the principal Accused has been acquitted, the other Accused, who have played a lesser role are also entitled for Acquittal.” This was on 11th May, 2015. But factoring the arithmetic error in, shows that the ratio of disproportionate assets zooms to over 76 percent. Apart from these errors, there are various issues with duplication of loans taken by the accused, the use of IT returns as proof of income — which, according to legal experts is settled law and cannot be used as such and also inflating the costs of construction of properties of accused suo motu by the Judge — when the accused themselves have given a lower figure.
2. The 10 percent loophole: The Krishnanand Agnihotri case is a disputed one in terms of a precedent and legal experts frown upon its usage. “This will legitimise corruption at the end of the day, if the usage of this 10 percent rule is upheld by the apex court,” says a senior Supreme Court lawyer, who did not wish to be named. If the apex court decides to acquit Sasikala and others on the basis of the Bangalore High Court verdict, what will happen? Lawyers say this will open up a Pandora’s box. “Every crook can take refuge behind the Agnihotri case, cook his books and say — see, I am within the 10 percent limit. It is like saying 10 percent of black money is okay, not a problem, pat him on the back and let him go. Who decides the 10 percent? Why not 20 percent? This is a problematic judgement,” he said.
3. No public prosecutor: The Supreme Court in April 2015, before the acquittal of the Bangalore high court, held that Special Public Prosecutor Bhavani Singh who had argued for the Karnataka government since 2013, was invalid. This meant that the entire High Court appeal did not have a public prosecutor at all! Singh was pulled up harshly by the Supreme Court in 2015 for his frequent absences, which led to the trial court judge fining him twice, causing unnecessary delays and even speaking on behalf of the defence. Once the apex court declared Singh as invalid, the Karnataka government re-appointed octogenarian BV Acharya as the Special Public Prosecutor. This was days before the verdict was to be announced. Acharya protested that he was not given time to try the case properly and handed in a written submission to Judge Kumarasamy. Is an entire trial, without a public prosecutor in the court, a valid trial? This too will be decided by the court on Tuesday.
What will happen on Tuesday, is larger than VK Sasikala and O Panneerselvam. It is larger than political uncertainty in the state of Tamil Nadu.
What will happen on Tuesday will make or break the faith of the Indian people in the judiciary, specifically in the Supreme Court. And this verdict will shine a light on the path that the country will tread in its avowed battle against corruption and unaccounted wealth.
(Published in arrangement with GRIST Media)