[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]T[/dropcap]he two-judge bench of Justices P C Ghose and Amitava Roy of the Supreme Court held in the Sasikala (originally called the Jayalalithaa and 3 others’ case, but her name was deleted due to her death before the judgment) that, in Disproportionate Assets (DA) cases, under the Prevention of Corruption Act, the burden of proving innocence rests with the accused. This, according to Mr. R.K. Raghavan, former CBI Director, is an unusual dilution of a hitherto-held fundamental principle of law, namely that the onus of proof of guilt is on prosecution. He says, “without this facility in law, many of our VIP offenders would go scot-free”.
It has the potential to put behind bars, thousands of very corrupt politicians and babus (including very high profile ones).
The import of this interpretation has perhaps not been understood fully by anyone, be it politicians, babus or the general public. This is as much of a landmark event (if not more) as the enactment of the RTI Act, MNREGA Act etc, which have created very major impacts on the society. It has the potential to put behind bars, thousands of very corrupt politicians and babus (including very high profile ones).
This power is not only in the hands of the Government, but also with the civil society, as demonstrated by Dr. Swamy (even without the benefit of such a judgment, to start with).
[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]L[/dropcap]et’s try to link this judgment with demonetization and see what we have. There are official reports that 18 lakh people have deposited suspiciously large amounts of demonetised cash into their bank accounts post-demonetization. Chances of the very same people having large chunks of other forms of unaccounted wealth are also high. A significant % of these people are likely to be politicians and babus, and their unaccounted wealth could substantially be from corruption. So, the demonetization data available with the Government is likely to include lakhs of public servants with suspected disproportionate assets which the Government can easily investigate by correlating with other data like company shareholdings, FDs, share and mutual fund investments, unauthorised holding of assets of any kind abroad, etc. The guilty may not be able to prove their innocence where their level of corruption is very high, as it is difficult to even falsely account for large accounts of black money.
Even the general public (including you and me) can approach the courts with information of suspected disproportionate assets…
Till this SC judgment, it would have been a Herculean task for the Government to prove DA cases against corrupt public servants, without solid evidence, merely based on suspicion. But now, armed with this DA case judgment, the Government can put the onus of proving the source of their income on these public servants. The larger the disproportionate assets, the higher are the chances of success of conviction because it will be that much more difficult to prove the source income for large volumes of assets.
Not just that. Even the general public (including you and me) can approach the courts with information of suspected disproportionate assets (including information we may have obtained through public documents like filing of nominations for elections, or information we may be able to obtain through RTI applications) owned by politicians (say, our MLAs and MPs) and babus (say, officials who want bribes from us), in service or retired.
There’s another positive twist to the tale. Based on the Sasikala case, the Government (or we as the case may be) can also ask the people who live with the public servants (regardless of whether they are their relatives or not) to prove their source of income, which makes it tougher for the public servants to hide their corrupt income through such people as their benami.
Will action against babus lead to a huge vacuum in national and state bureaucracy? It could, but the way out is not putting up with the corrupt forever. Instead, the Government can let go of corrupt bureaucracy and set up a stream parallel to IAS, consisting of SMEs (Subject Matter Experts) in different realms, thus giving the Central and State Governments, two alternative streams of officials to choose from. This will keep both the Generalist (IAS) and Specialist streams in check and prevent formation of cosy-clubs among bureaucracy, who sabotage any efforts to cleanse the system, as the Governments can’t run the country/ states without bureaucracy.
Can this lead to witch hunting? If merely sending a notice to a suspect public servant (present or past) and asking him/ her to show proof of assets and liabilities, based on prima facie information (like huge deposits of demonetised currency), is witch hunting, it is better done in national interest. Can this lead to Inspector Raj? Surely it can, which won’t benefit the Government either.
[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]T[/dropcap]he Government should come up with reasonably fool-proof safeguards against witch hunt by the ruling party and harassment by babus. An indicative set of suggestions for the same are outlined in the article: How To Maximize The Gains of Demonetization ( https://www.pgurus.com/how-to-maximize-the-gains-of-demonetization/ )
Since much of the ground rules for such cases have been established in the Jayalalithaa/ Sasikala case, such cases need not take too long in the courts, in future.
After the RTI Act was enacted, many NGOs started popularizing it, which led to effective use of RTI Act by very ordinary people, and this had lead to public good. Similarly, civil society should popularise this SC judgment and make sure that people understand its potential; this can lead to cleansing of Governments and all their organs, at the Central and State levels, and even the judiciary.
It is easy to build a whistleblower app through which people can report such cases with Aadhar based authentication. Since much of the ground rules for such cases have been established in the Jayalalithaa/ Sasikala case, such cases need not take too long in the courts, in future. It may even be a good idea to set up separate courts for this purpose and entrust the task of bringing to book, corrupt Government servants (including politicians, bureaucrats, judiciary, etc) to Dr. Swamy, if he agrees.
1. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.