When Law becomes a Rogue’s charter: Tamil Nadu, Jayalalithaa and the State of Corruption.

A shorter version of this was published in Daily O

George Grote’s History of Greece (1846-56) sought to explain, through constitutional and political history of the Athenian democracy of the fifth and fourth centuries B.C., how a republic could sustain itself against civic corruption and moral decay[1]. Grote concludes that its own citizens ultimately destroyed the Grecian polity, not by violence, war or conquest, but through the disregard of what he called “constitutional morality”. For Grote, constitutional morality meant, “a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts…”. Grote’s intellectual thought found its way to the Indian Constitution through Dr. Ambedkar’s who invoked the phrase “constitutional morality” and quoted Grote at great length in his speech ‘The Draft Constitution’, delivered on 4 November 1948[2]. In his account, constitutional morality emphasized self-restraint, deference to due processes, skepticism about authoritative claims to popular sovereignty, and the concern for an open culture of criticism that remains at the core of constitutional forms. Above all constitutional morality made, inclusion of the structure of the administration an integral part of the Constitution.

The corruption as it lives and thrives in India is the insidious practice of political regime corruption; it impedes constitutional morality, disrupts the constitution and the political will of the people for personal and political gains. It creates a dual reality, one a set of values enshrined in the Constitution that affirms constitutional governance for its citizens. Second, an everyday reality created by regime corruption that undermines the formation of structures that democratic polity, and sanctions abuse of power. Legal measures to curb corruption is found in the Prevention of Corruption act of 1947, which was later amended to make it a criminal offense to possess’ wealth disproportionate to the wealth of the public servant that cannot be adequately explained, and increased imprisonment to a maximum of 10 years. A “puerile piece of legislation”[3], Prevention of Corruption Act has done very little in terms of preventing or curbing corruption in India. It is heavily weighted against corruption from `below’, and the relative legal immunity of corruption from `above’, especially when the person accused holds position of political power.

Till recently, before the Supreme court struck down section 8(4) of the Representation of the People Act, elected representatives were allowed three months to appeal their conviction and hold on to their seats until they exhausted all judicial remedy in lower, state and supreme court of India. This provision frustrated the possibility of real punishment through long-winded appeal procedures, and imprisonment for corruption in high offices remains a rare.

When Judges Legislate

It took 19 years for the courts to conclude and acquit Tamil Nadu’s former Chief Minister Jayalalithaa, accused of amassing wealth that was disproportionate to her declared sources of income. Special Judge John Michael D’Cunha, convicted Tamil Nadu Chief Minister Jayalalithaa in the disproportionate assets case, which was an historic verdict. The Judgment pronounced by Judge D’Cunha, along with the evidence recorded proves beyond doubt that the “people’s chief minister” stole from the poor. If upheld, it would have restored some faith in the functioning of the Indian Judiciary.

Jayalalithaa’s acquittal by Karnataka High Court Justice CR Kumaraswamy is a travesty of a legal judgment that deeply undermines the future prosecution, conviction and disqualification of corrupt politicians in high offices. 13(1)(e) of the Prevention of Corruption Act, 1988 states: “ if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.”

The provisions of the Prevention of Corruption act, relating to assets disproportionate to income does not legislatively exonerate acts of corruption, based on the concept of disproportionality. The Karnataka High Court, without legislative basis acquitted Jayalalithaa and her co-accused on legally unsustainable grounds, by applying an arbitrary ‘10 percent test’, which held that if illegal assets constituted less than 10 per cent of total assets, then there would be no liability under the Prevention of Corruption Act for disproportionate assets.

Judiciary can interpret a provision of criminal law to meet the purpose of the law, but not to defeat the same. Judicial interpretation is permissible and valuable, when that interpretive role of the Judge improves and supplements the law when it is “incomplete and in need of being given greater specificity, or that it is erroneous and needs to be corrected”. Justice Krishna Iyer in Maru Ram v Union of India while talking about the role of judges stated that, “But ours is to construe not construct, to decode, not to make a code.” Similarly in R. S. Nayak vs A. R. Antulay judgment, quoting Lord Atkins, the court stated that, “Legislation must at all costs be interpreted in such a way that it would not operate as a rogue’s charter.” Judiciary can interpret a provision of criminal law to meet the purpose and the end goals of the law, but not to defeat the same. In the present case, the Prevention of Corruption Act, provides clear direction to uphold the conviction handed by Judge D’Cunha.

The Court it seems was also oblivious to the principles of statistics in deciding the proportionality. Using average as a measure of disproportionality is fundamentally flawed. A disproportionality of 10% on Rs 1000 is not equivalent to 10% on Rs 56 crores. The difference is better captured by the statistical principle of standard deviation that quantifies the amount of variation and eliminates the misconception of the averages. It is unfortunate that the Judge forgot to take into account the fundamental principles of statutory interpretation and lacks the fundamentals of statistics, and in doing so erred in acquitting Jayalalithaa and her co-accused based in flawed reasoning that goes against existing legislative interpretations.

When political corruption consistently abates constitutional governance and negates the people’s will, the judiciary must act in defense of constitution and its people and not in benefit of the “rogue’s charter”. Expect a few occasions, the Indian judiciary has consistently failed to protect the Constitution and its people. In a country governed by the constitution, when the judiciary fails in its role, it not only fails its people, but also deprives them of the constitutional governance. Jayalalithaa’s disproportionate assets case is a glaring illustration of this phenomenon starting from the Supreme Court to the High Court of Karnataka where the rule of law was ignored.

Our constitution’s sanctity and purpose lies in the practice it entails. Constitutional morality requires that allegiance to the constitution is non-transactional and it cannot be premised upon the beliefs of political actors and the probity of India’s political class. Over past sixty years we have develop a democracy that facilitates democratic procedures, with a political class that nonetheless ignores the constitutional limits of their power and has lost sight of Constitutional governance. In Tamil Nadu, we have come to live with the most insidious tolerance for corruption, whether it is perpetrated by AIADMK ruled by Jayalalithaa and her cronies or DMK run by the equally corrupt octogenarian patriarch, Karunanidhi and his family. Both these parties have been re-elected despite their massive, systemic corruption. Re-election of candidates, despite allegation and criminal convictions justifies, validates and perpetuates more corruption. It has created a political culture that solely rewards electoral success, where corrupt governance is institutionalised, validated, and purified by election that repeatedly ignores the constitution.

Stopping the perpetuation of regime corruption requires reforms that go beyond the disqualification of individual member for a term of six year. We need to seriously explore the legal feasibility of disqualifying the Political Party, not just the candidates and limit their political participation as a discursive practice that defends the very meaning of our democracy. Our constitutional morality must place the guarantee of the citizens’ and nation’s survival as the ultimate objective. In 1965 the Israeli parliament, relied on the principle of “self defending democracy” to confirm the disqualification of list of candidates and political parties on the grounds that they, “negated the existence of the state”. Corruption negates constitutional governance and our reforms need to look beyond the current legislative remedy to cure this malady. Democracy is not an end in itself but a means of creating a society in which the citizens are recipients of good governance and political rights that ensure effective participation. To preserve these rights, a democratic constitution is entitled to act with intolerance toward intolerant entities that seek to subvert the constitution.

[1] George Grote, A History of Greece. Routledge, London, 2000, p. 93.

[2] Ambedkar, ‘Speech Delivered on 25 November 1949’ in The Constitution and Constituent Assembly Debates, p. 174.

[3] H.L. Mansukhani, Corruption and Public Servants, Vikas, January, 1980