A terrifying judgment from a High Court in a corruption case!

Supreme Court advocate, K.V.Dhananjay points to a recent judgment of the Karnataka High Court that altogether quashed a corruption trial involving former Chief Minister of Karnataka, B.S.Yedyurappa (BJP) and current Energy Minister of Karnataka, D.K.Shivakumar (Congress). Dhananjay says this is a ‘terrifying’ judgment. He is not involved in it and has no connection to any party to this case.

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Which State of India are you from? Chances are, whichever State you might reside in, one of your Chief Ministers has most likely faced a criminal allegation, investigation or trial over denotification of land that was notified for acquisition for a public purpose. Of course, you do not need to be a genius to see that there is tremendous corruption in this business of first notifying private land for a public purpose and then, selectively, excluding (denotifying) some of those very private lands from acquisition.

Of course, you are free to suspect that the beneficiaries of such selective denotification have a thing happening between them and the Chief Minister or his Government. Equally, you are free to believe that your Chief Minister was being charitable and was solely motivated in public interest to denotify only some private lands from acquisition. In either case, you should still brace yourself for something that might terrify you – a recent judgment of the Karnataka High Court.

I have no involvement in this case. Nor am I criticizing that judgment here as I assume that it would be unfair to the parties involved.

Persons involved:

Mr.B.S.Yedyurappa is currently, a Member of Parliament. He was the Chief Minister of Karnataka in the recent past. He is from the Bharathiya Janatha Party (BJP). He was quite popular during his tenure as the Chief Minister - for several wrong reasons.

Mr.D.K.Shivakumar is currently, the Energy Minister in the Cabinet of Mr.Siddaramaiah, the Chief Minister of Karnataka. Both belong to the Congress Party. Mr.D.K.Shivakumar was also the Urban Development Minister several years ago during his party’s previous power in the State.

Facts not in dispute – the following facts are drawn from the judgment

While he was the Urban Development Minister, Mr.D.K.Shivakumar (‘DKS’, for short) bought a piece of land in Bangalore. The problem, however, was that this was a notified land – 4.20 acres. Of course, you would not be the first person to laugh at the number here, 420. The seller was one Mr.Srinivasan.

While he was that minister, DKS sought a change of land records to his name. The change happened instantly. How instantly? In 2 days. Instead of the mandatory ‘call for objection and wait’ period of 30 days.

While he was that minister, DKS enters into a joint development agreement with a builder over this land. Of course, this builder couldn’t be faulted if he fully knew that this land had to be denotified. The builder is to take 73 percent upon completion and DKS to take 27 percent.

Naturally, DKS had wanted a change of land use from ‘industrial’ to ‘residential’. That too happened, however, with the Government officer in charge foreseeing and declaring that the change of land use shall become effective once the land is denotified!

The previous owner, Mr.Srinivasan dies.

Then, DKS, as a public servant, writes three letters to the Government in his own name asking that the 4.2 acre of land be denotified. In his letters, he conceals the fact that he is the buyer of this land – his letters speak of Srinivasan. Of course, Srinivasan was a dead man on all those dates and you wouldn’t have known it if you were reading DKS’s letters asking for denotification.

Finally, as one would expect, Mr.B.S.Yedyurappa denotifies this 4.20 acres of land. Of course, this land was denotified in the name of Mr.Srinivasan, a man that was dead several years ago.

To repeat, the aforesaid are facts and not in dispute except for some exclamation, at places.

Two individuals collected a few documents and then lodged a complaint. It was investigated by the anti-corruption police  (Lokayukta) and a police report was filed by it thereafter to the Special Judge. The police report had recommended punishment to several persons under the Prevention of Corruption Act, 1988 and other penal statutes. The Special Judge for trial of Corruption cases in Bangalore city took cognizance of offences by both Mr.D.K.Shivakumar and B.S.Yedyurappa and others for offences under the Prevention of Corruption Act, 1988, Indian Penal Code, 1860 and other penal statutes. The Court summoned the accused to stand trial.

Some of the accused approached the High Court. The High Court then stayed the proceedings for some time. However, it vacated its stay afterwards. The record shows that Mr.D.K.Shivakumar then approached the Supreme Court. The trial was again stayed at the Supreme Court.

However, the Bench presided by Chief Justice H.L.Dattu did not decide anything before it. Instead, it remanded the matter back to the High Court – with a stay upon the trial until decision by the High Court.

Anyway, at the High Court, a judge set out the matter for hearing. He recused from it. It was then heard by a different judge.

The judgment of the High Court is here: http://indiankanoon.org/doc/180304820/

Alternative link - from the High Court website is here: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/93525/1/CRLP7274-12-18-12-2015.pdf                                                                                                                          

The High Court quashed the very corruption trial and all further proceedings against Mr.B.S.Yedyurappa and Mr.D.K.Shivakumar.

Do I find fault with the judgment or am I criticizing it here? I am not commenting upon the judgment except to say that it is indeed, ‘terrifying’.

I have no idea whether this judgment would be appealed and if so, to the Supreme Court. If the Supreme Court would sustain this judgment, however, given the legal system that we follow in this country, similar repetitions and replications too would not constitute any offence under the Prevention of Corruption Act, 1988. In one go, many Chief Ministers of various States might find themselves cleared of wrongdoing in denotification scams, scandals and such corruption cases.

There has never been any event in independent India that magically threw out corruption cases against Chief Ministers of different States in one stroke of reasoning. It remains to be seen whether this judgment would work such a magic if and when it reaches the Supreme Court. The police prosecutor in this case is the Lokayukta. And you could be forgiven for calling the Karnataka Lokayukta as the most corrupt anti-corruption watchdog in this country.

Over a recent conversation at the Bar cafeteria at the Karnataka High Court, a private prosecutor in a different case casually asked me on what I would do if I were him and had to prevent a judge from quashing a serious case of corruption. He was referring to a different case involving a very high ranking politician.

I said something like this and I am glad I said so:
“It is very simple. Find out objectively, what is the deed of the case. If the deed does establish or lead to a triable question of corruption, then tell the judge that if he would label those deeds as not forming ‘corruption’, then to be very certain about why he says so. Because, the prosecutor should then be able to tell the judge to be fine with the prosecutor informing the public that the judge has just reasoned that those very deeds are not corruption and other public servants are equally free to repeat those very deeds and not risk ‘corruption’ investigation, trial or conviction – because of his judgment. Of course, the judge should know that the prosecutor is being serious.”

That private prosecutor had plenty of laughs at it. He thought I was just joking. He might still be thinking so. However, he did say that it would reflect poorly upon a prosecutor to say so to a judge or to anybody – to ask that a corrupt deed be done by the listener.

You see the contradiction! Here is a prosecutor who is content to personally believe that a deed is an act of corruption but would struggle to give it a practical form if a judge would declare that deed to not be an act of corruption. So, corruption then is not a practical matter at all for him but is something like a mere theological argument.

I do not know about you or any other prosecutor anywhere in the world. I would consider it to be a tremendous act of honour for a prosecutor to tell a judge who would indicate that an act that would be considered to be terribly corrupt is not so:

“This Court should run the risk that others too will replicate the same thing without fear of being charged for corruption and cite your judgment in support of their deed. Only a fool of a judge would refuse to see such a possibility. Unlike any other class of offences, an offence of corruption is one where both the judge and the public should be on the same page about what is and what is not corruption. If one of these two makes an unilateral advancement in one’s own understanding  of what is and what is not corruption, the other party should be informed and have the opportunity to adopt or to force the other party to retract. That is my understanding of the whole law of ‘corruption’ and of the place of anti-corruption courts in our society. We are meant to be governed by the rule of law. A judge who would rule that a deed is not corruption should know what his judgment means to the broader class of public servants and what his judgment could invite in them. He should neither remain blind nor unwilling to consider such an impact from his judgment.”

At any rate, this blog is not about and should not be about the facts of the case that we have discussed. It would be unfair to the accused in that case should you begin to criticize the judgment in their absence. And, they have no obligation to defend themselves at any place except in a court of law.

This blog is about a larger and bigger issue of how and what we add to the law of anti-corruption in this country.