As Vikram Hegde explained in a Legally India column on Livemint yesterday, former Tamil Nadu chief minister J Jayalalithaa was acquitted by the Karnataka high court in appeal because it found that only 8 per cent of her assets were illegal (because there was no proof of their origin).

The court relied on the 1976 Supreme Court case of Krishnanand Agnihotri vs State of Madhya Pradesh, 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.

There are at least four reasons why the situation we are in would be ridiculous if it weren’t so worrying.

1.) The ‘10 per cent test’ is rather arbitrary and old

The Supreme Court case from 1976 that the high court relied on in the appeal, was about Rs 1.28 lakh of allegedly illegal assets.

In today’s money, that is equivalent to only around Rs 25 lakh or thereabouts, taking into account inflation.

It sure sounds pretty small fry compared to the at least dozens of crore Rupees that we were talking about in Jayalalithaa’s case (which included 100s of items of gold jewellery, designer watches and footwear).

The only reference to 10 per cent in the Supreme Court judgment seems to be at the end of the judgment, where the Supreme Court notes about the allegedly illegal assets that were under appeal:

The assets possessed by the appellant were thus in excess of the surplus income available to him. But since the excess is comparatively small - it is less than ten per cent of the total income of Rs. 1,27,715.43 - we do not think it would be right to hold that the assets found in the possession of the appellant were disproportionate to his known sources of income so as to justify the raising of the presumption under Sub-section (3) of Section 5.

Using that as a get-out-of-jail-free-card seems tenuous at best when talking about crores of Rupees.

2.) No prosecution

Prosecutor BV Acharya complained almost immediately after the acquittal that he was not even allowed to make proper oral arguments before the high court, since only one day was granted by the Supreme Court to the prosecution.

Supreme Court advocate Karuna Nundy argued in a column on The Wire yesterday that:

Buried on page 691 of the High Court judgment acquitting the former Tamil Nadu Chief Minister is this statement of BV Acharya, a respected senior lawyer who was appointed Special Public Prosecutor in the case:

“According to the law settled by the Supreme Court, the sole prosecuting agency is the State of Karnataka and in the appeals, the Public Prosecutor validly appointed by the State of Karnataka has to be heard. In all the above appeals, very significantly, the State of Karnataka which is the sole prosecuting agency has not been made a party.”

Acharya was allowed only to make written submissions with two days notice, no arguments were heard from the State of Karnataka.

In short, the defence for Jayalalithaa had a wide open field to argue their case and as good as no one there to rebut them.

The adversarial process, where both sides argue as hard as they can for and against guilt, requires both sides, otherwise it becomes a show trial.

3.) Allegedly, really dodgy maths: Were more than 10% of assets illegal?

The Karnataka high court's judgment acquitting Jayalalithaa and her three aides had glaring errors in computing their assets, special public prosecutor BV Acharya claimed yesterday.

"The learned judge (Justice CR Kumaraswamy) has given details of assets and income on page 913 of the voluminous (920 pages) judgment. As per prosecution, total assets were valued at Rs 66.65 crore, based on the argument of construction cost of properties and wedding expense of VN Sudhakaran," Acharya told IANS here a day after the verdict was delivered.

Sudhakaran is the disowned foster son of 67-year-old Jayalalithaa.

Sudharakan, his aunt Sasikala Natarajan and her aunt J. Ellavarsi were also acquitted in the disproportionate assets' case, in which the trial court convicted and sentenced them to four years jail with a fine of Rs 10 crore each.

"The amounts calculated and figures mentioned by the trial court, prosecution and defence counsels do not tally. Reasons attributed for the expenses are conflicting and numbers mentioned by the trial court judge, the prosecution and defence counsel are contradictory," Acharya said.

For instance, the trial court judge (John Michael Cunha) has assumed the wedding expense to be Rs 5 crore, while the prosecutor (Bhavani Singh) claimed it was Rs 6 crore.

The prosecution did not take into account the income of the accused in the form of loans from state-run banks. The total of 10 loan accounts was Rs 24.15 crore, he said.

"Therefore, in terms of percentage, there is a glaring arithmetical error. As it has come to our notice only now, we are considering all options that are available. If we decide to file an appeal before the Supreme Court, it will be an excellent way to get relief," Acharya said.

Scroll.in had published an article yesterday that argued that even simple addition had been botched in the judgment’s vital calculation of bank loans, resulting in a discrepancy of Rs 13.5 crore that would change the 8% figure to 76.75%.

4.) 1 + 2 + 3 = God knows

If you couple the allegations of the weak ‘10%’ precedent from 1976, with dodgy math, with the fact that there was no real adversarial approach during the appeal, it does three things.

First, it explains why it is not very clear why the high court followed the 1976 judgment while the trial court had apparently not.

Second, it explains how such allegedly dodgy maths could have made it into a high court judgment unchallenged.

Third, it calls the entire judicial appeal process into question to such a degree that calling it a judicial process seems a stretch of the word.

Karnataka Law Minister TB Jayachandra has said he would consult Acharya and the state Advocate General Raviverma Kumar on whether to file a special leave petition in the Supreme Court against the high court verdict.

With IANS inputs