These are challenging times for anti-corruption agencies, prosecutors, and defence lawyers. There are at least three cases of corruption in high places, which are hanging fire. Once final judicial decisions are reached, these are likely to be pegs around which many future prosecutions of public servants could either be built or demolished. 

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The media are naturally making the most of it. While they cannot be faulted for an element of sensationalisation — as the cases are likely to impact the careers of two serving Chief Ministers and one past — there is a need to objectively explain the legal issues involved, for the benefit of the uninformed citizen. 

The oldest of the three cases — going back to 1996 — involves Tamil Nadu Chief Minister J Jayalalithaa. The case is now posted for a daily hearing in the Supreme Court later this month. The sessions court in Bengaluru — to which the trial was transferred from Tamil Nadu by the Apex Court — was categorical in its judgment that Jayalalithaa had committed the offence of acquiring assets disproportionate to her known sources of income, while holding public office. In September 2014, the court convicted her to a term of four years in prison. In October 2014, the SC granted her bail and suspended the sentence imposed by the trial court. In May 2015 her appeal against conviction was allowed by a single judge of the Karntakaka HC, on grounds that the prosecution had grossly miscalculated Jayalalithaa’s assets. The current appeal to the SC against her acquittal is by the state of Karnataka, which had conducted the prosecution. Apart from citing the points in her favour listed by the HC judgement, the defence is likely to take the stand that the appeal to the Apex Court had emanated from a government which had no jurisdiction over the territory where the alleged offence had taken place, and therefore the appeal was flawed. Jayalalithaa’s prosecution was extraordinary. Although the trial in Karnataka was at the instance of the SC, her lawyers may argue that post-trial proceedings had to go back to Tamil Nadu where the alleged misdemeanour took place. To my knowledge — I could be wrong — such hairsplitting over jurisdiction was being made for the first time. This is why the Apex Court’s ruling would be historic.

Kerala Chief Minister Oommen Chandy is another high profile personality in worry, following his alleged association with the solar scam. A few years ago, a private company, helmed by a woman entrepreneur, Saritha Nair, had attracted substantial investment from the public on the promise of setting up a profitable solar energy project. Soon, there was a complaint from one of the investors alleging non-performance and cheating by the company. It was alleged that she was in touch with an official in the CM’s office regarding clearances required for the project, and she had also personally met the CM in this connection. Once there was a leak of the happenings, there was public clamour for a probe. In October 2013 the state government ordered a judicial inquiry into this by a retired high court judge.

Deposing before him recently, Saritha alleged that the CM had demanded a bribe of more than Rs1 crore, possibly to facilitate the project. What, however, added a twist to the scandal, was the recent direction — on a complaint by a private individual — by a vigilance court to register an FIR against the CM. This has been stayed by the Kerala HC for two months, on a petition by the state government. The point for discussion is, how far was the vigilance court right in ordering an FIR, based solely on a private complaint, and without a Preliminary Enquiry (PE)? While Section 154 of the Criminal Procedure Code does not stipulate that it is mandatory to conduct a PE before an FIR is initiated, in several rulings relating to the Central Bureau Investigation, the SC had laid down that a PE was desirable in such cases. A PE is, therefore, at its worst, extralegal, and definitely not illegal.

The SC’s intent was that, without any such PE, in cases of corruption involving a public servant, frivolous and motivated accusations could end in an FIR. And this could damage the reputation of an honest public servant. This procedure seems fair and sensible in the current ambience in the country where every issue is politicised. Having said this, it is ridiculous that charges of venality against people in high places get stalled for abnormally long time, at the instance of adversely affected influential persons, who buy time through judicial inquiries. A Commission of Inquiry is a toothless body, which takes enormous time to come out with its findings, which, again, the government need not accept. Also, the government can take its own sweet time to formulate its stand on the report of a judicial commission. A police or an anti-corruption investigation may not be swift. But it is definitely faster, and, has normally greater credibility and some finality. Also, a witness summoned by a Commission may choose not to depose before it, that too without any penalty. This dilutes the effectiveness of all judicial inquiries.

In a third case, former Maharashtra Chief Minister Ashok Chavan was initially charge sheeted in 2010 along with 11 others in the Adarsh Society scam. The CBI took up the matter again recently with the present governor, seeking sanction on the ground that it had obtained new evidence against Chavan. This possibly relates to offences under the Indian Penal Code. The present governor accorded sanction a few days ago ending all speculations. This is likely to be challenged in the SC. The correctness of the governor’s action is in my view not justiciable, as long as there is evidence (to be submitted by the state government) that all relevant facts were placed before him and there was an application of mind by him before taking the decision.  

What is central to all three cases is that investigation/judicial proceedings are in abeyance only on technical grounds. There does not seem to be any attempt to deny the fundamental facts of corruption. This is the pathetic state of public governance in our country!

The writer is a former CBI Director