news Wednesday, February 25, 2015 - 05:30

Kunal Shankar| The News Minute| October 6, 2014| 8.30 am IST

Senior lawyer R. Vaigai who practices at the Madras High Court has defended judge John Michael Cunha's order convicting former TN CM J. Jayalalithaa under the Prevention of Corruption Act. She called the order "well reasoned" and one that would serve as a deterrent to corruption in public life. 

Countering criticism that the judge failed to arrive at the source of income cited as disproportionate, Vaigai says the judge clearly establishes that monies moved from 18 shell companies to acquire private properties. She says much of it would be tax payer monies. Vaigai says the Prevention of Corruption Act requires the prosecution only to establish wealth that is disproportionate. The Act then shifts the onus on disproving corruption on the accused. 

R.V Photo

Vaigai also commended the Justice A.P. Shah Law Commission report on the timing of disqualification of elected members on corruption charges. 

Vaigai is known to fight corruption in public life. She led the movement to remove former Karnataka High Court Chief Justice P. D. Dinakaran from office on charges of land misappropriation. Excerpts from her conversation with journalist Kunal Shankar: 

1) In the days following former Tamil Nadu Chief Minister J. Jayalalithaa's conviction, there has been much criticism of judge John Michael Cunha's order. One of them has been that the judge has not arrived at the source of excess Rs. 53.60 Crores in order to prove that the money was obtained by corrupt means. Is this a fair argument?

A: The criticism is invalid at the very outset. It is not necessary for the judge to trace the source of the money. It is enough if he is able to arrive at a finding that the funds or property in the hands of the accused public servant is disproportionate to his or her "known sources of income". 

Section 13 (1) (e) of the Prevention of Corruption Act, 1988 has two limbs, the first being that the prosecution has to prove the quantum of the "known sources of income" and demonstrate that the property in the hands of the public servant is disproportionate to that quantum. If that is satisfied, the law presumes that the excess is ill-gotten money in the hands of the public servant through corrupt means. The second limb then comes into operation, which shifts the burden of disproving the presumption of guilt on the accused. The onus in then on the public servant to demonstrate "satisfactorily" that the excess funds or property was acquired only through known sources and not otherwise.

In this case, judge Cunha has rightly arrived at a finding that Ms. Jayalalithaa was not able to satisfactorily explain that the funds and properties worth over Rs 53 crores , which she came to acquire during her tenure as Chief Minister between 1991-96 was acquired only through the known sources of income.

2) It could be argued that the shifting of the burden to disprove guilt is unfair towards the accused, because under normal criminal jurisprudence the accused is presumed innocent until proven guilty.

A: The purpose of PC Act is to remove corruption by public servants. The under-lying principle behind the provisions of the Act are that a public servant is in a position of authority and is in a position of public trust. Any excess money or asset that is found in his/her hands which is disproportionate is therefore presumed to have been obtained on account of the authority or power attached to the position. The law requires a public servant who enjoys public trust to be absolutely fastidious and scrupulous in matters of financial dealings both public and private. That is why even under the services rules of the government servants, there's a requirement of seeking prior permission from the superiors even if he or she wants to acquire a property or any wealth, because even his personal acquisitions come under scrutiny. 

3) What do you mean by known sources of income? Because Ms. Jayalalithaa explains that several party sympathisers and well-wishers have gifted her most of the Rs. 53 Crores?

A: If such donations can be accepted as known sources of income then all public servants can get away with black money in their hands as gifts received from fans and well wishers. Moreover, it is well-known that such donations happen only when the concerned person comes into office and not earlier. Known sources of income has been explained in the Act as income received from lawful or legitimate means, and such receipts have been intimated in accordance with the law or rules applicable to the public servant. 

4) So in the case of Jayalalithaa what could be claimed as known sources?

A: Her salary which she proclaimed was only Rs. 1 per month and interest received from bank deposits or shares that she held prior to becoming CM, and that's all. 

5) But several of the properties Ms Jayalalithaa declares were not in her hands. They were owned by companies in which A2 to A4, ie, Sasikala, Ilavarasi and Sudhakaran were partners. 

A: The judge has found that the companies did not have any business operations apart from merely existing on paper. They were used as a conduit for routing funds for purchase of properties for the personal benefit of A1 - who is Jayalalithaa. On an analysis of the evidence the court has also found that 18 of the companies came into existence after she became CM and 10 of them were registered on a single day with identical terms of constitution, and that the operations of all the bank accounts of the companies were done at the behest of Jayalalithaa. The other accused had no independent source of income. In other words, the judge finds that A2 to A4 were mere name lenders and the companies were dummy entities to cover up all the illegal transfer of funds. The sub-registrar who registered most of the property transactions was a Prosecution Witness (PW). He says he used to be summoned to Jayalalithaa's residence in Poes Garden and all the registration of the purchase of properties were done there. He even says that on several occasions the names of buyer was left blank for the CM to fill later! 

6) The Rs. 100 Crores fine is being viewed as exorbitant considering the income described as disproportionate is almost half that sum. What do you say to that?

A: Firstly, the valuation of the properties was as given in the respective purchase deeds and not the real market value, so the total worth of about Rs. 54 crores is a gross under valuation and the wealth has been enjoyed for almost two decades now. For example, a property of 900 acres in Kodanadu estate in TN is shown to have been purchased only for Rs. 7.5 crores. Any lay person will say that it is a ridiculously low figure. So I do not think Rs. 100 crores is exorbitant at all. And the judge has also given valid reason for the sentencing.

7) The judge has been accused of speeding up the conviction and sentencing. It is being argued that in the general course of a trial, arguments on sentencing and the order is set on a later date following the conviction in order to give the defence time to respond. Is this a fair point?

A: That is not the requirement under law. In fact, section 309 (2) of the Criminal Procedure Code was amended in 1978 to say that "no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him." Some of the older judgments of the SC are referred to say that the accused must be given a couple of days after the finding of guilt to respond to the proposed punishment. Those judgments were rendered in the context of death penalty and have no relevance to this case. 

8) There have been suicides, self-immolation attempts, protests and hunger strike by AIADMK party men calling the judgment unfair and seeking the immediate release of Jayalalithaa. Private bus drivers' association of Tamil Nadu shut shop yesterday and AIADMK MLAs sat on a day-long hunger strike. Are these acts not contemptuous of the court's order? Can they be hauled up for contempt? How do you view such adversarial politics to pressure the judiciary?

A: It is definitely undermining the authority of the courts. Most importantly they undermine the rule of law. Once a court has pronounced judgement, the individual concerned has to adopt only legal methods if not satisfied with the judgment. While Jayalalithaa has filed an appeal in this case, the resort to bandh or strikes throughout the state is condemnable. It can't be said that they are spontaneous considering the organised manner in which it is being held. More serious is the fact that the government machinery seem to be supporting and aiding these protests and strikes by providing police protection and even permission for holding the protests at places normally where permission are not given. For example, today, dharnas were being held outside MGR samadhi and elsewhere on the Marina in Chennai. Such venues are normally not permitted by the police for other parties and protesters to hold strikes. So it is obvious that these are not spontaneous outpourings of grief, but are state-sponsored events to show support for their leader.

9) How do you view this order in light of the 170th Law Commission report on decriminalizing politics led by retired Delhi High Court Chief Justice A.P. Shah? The report recommends disqualification of an elected representative following framing of charges, pointing out that by then the prosecution is presumed to have sufficient evidence on the magnitude of the alleged crime. Do you agree with the report particularly following the amendment to the Representation of People Act 1951, that disqualifies a member following conviction? 

A: Detailed reasons have been given by the Law Commission for its recommendation that the framing of the charge sheet by the court should be the point at which disqualification should commence. I am sure most of the political parties are going to object, but considering the serious erosion of democracy that is taking place due to criminalisation of politics, a harsh measure is called for.

10) What are the other legal remedies do you think that are required to hasten decriminalizing politics?

A: One has to prevent black money from entering into political election campaigns. There has to be an embargo on unlimited party funding of election campaigns. Presently our legislatures have MPs and MLAs facing several criminal charges. Some even face charges of murder and rape. I really wonder how we can call them fit to be our legislators. There has got to be some system put in place even for nomination of candidates, I think, for political parties. That will be the best check of even restricting candidates with black money and criminal background from using money and muscle power to garner votes.

It is well-known that many parties today give applications at a high cost for even proposed candidates for assembly or parliamentary seats. It is therefore obvious that even at the very entry-level, money power becomes the base for deciding one's entry into Parliament. This practice has to be checked.

Read- (Comment) A belief that Jayalalithaa is invincible

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