Letter to Ministry of Information and Broadcasting on Kapil Sharma Show

To

The Officer in Charge
Ministry of Information & Broadcasting
Content Regulator for Television in India

Dear Sir,

I introduce myself as an advocate registered with Tamilnadu Bar Council and Bar Council of India (Regn no 87/2013).   

After watching "The Kapil Sharma Show" on Sony Television aired at 21 hrs, I am deeply pained by the insensitivity, depravity and immorality apart from illegality of making a mockery of Transgenders in India.  The show through its depraved jokes on Transgender seeks to deepen the prejudice that is already existing against them in India and also grossly disrespects the Judgement of Supreme Court in the case of National Legal Services Authority v. Union of India 2014 which has granted them the status of third gender.  

In light of the above, I wish to protest and lodge my complaint against the same.   

1.  I am inclined to believe that you are cognizant that the Supreme Court of India in the above stated judgement has affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender.  The Court has inter-alia also held that transgender people as a socially and economically backward class entitled to reservations in Education and Job, and also directed union and state governments to frame welfare schemes for them. 

2. I am inclined to believe that you are cognizant that the court in clearest of terms has issued directions to Centre and State Governments to take steps to create public awareness so that Transgender people will feel that they are also part and parcel of the social life and not be treated as untouchables and take measures to regain their respect and place in society; and seriously address the problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies and social stigma (quoted verbatim from the judgement).  In light of the above, the highest court of the land has noted that these declarations are to be read in light of the Ministry of Social Justice and Empowerment Expert Committee Report on Issues Relating to transgender people.

4. I am also inclined to believe that you are cognizant that the Rajya Sabha has already passed the Rights of Transgender Persons Bill, 2014 guaranteeing rights and entitlements, reservations in education and jobs (2% reservation in government jobs), legal aid, pensions, unemployment allowances and skill development for transgender people.  

5. The said bill also contains various provisions to prohibit discrimination in employment, prevent abuse, violence and exploitation of transgender people. 

6. I also refer to IBF content code regulations and certification rules 2011 under Theme 5 clause 2 where it is stated that “the subject-matter treatment of any program under all categories shall not in any manner Incite disharmony, animosity, conflict, hatred or ill will between different religious, racial, linguistic groups, castes or communities”.  The Applicant submits that the Transgender Community constitutes a community in its own right and the afore-stated show by making mockery of the Transgender seeks to incite animosity, hatred and ill-will against the group. 

7. The position of public discrimination is a global problem and the same is supported by various research reports in India and abroad including but not limited to United nation development report, Human rights watch etc.  The prejudice suffered by them on a day to day basis is supported by mountains of research evidence and various judgements of high-courts and supreme courts whose references would exceed the content limit on this form. 

8.  I would like to end this letter with a single question.  "Do you agree that Transgender have a right to live a life of dignity which is guaranteed to all Indian citizens under the Indian Constitution?", if you agree then should program like the Kapil Sharma show be allowed to make mockery of Transgenders thereby deepening existing social prejudice in India? 

9. In light of the above, I urge you to act and issue notice seeking modification in their content to prevent propagation of prejudice to Transgender community in India.

Yours faithfully

(Imran Hussain)

The Djinns of Concrete

The Competition Appellate Tribunal (‘CAT’) has set aside Rs 6,316 crore of penalty imposed on 11 cement firms by Competition commission of India (‘CCI’) on cartelization charges and asked regulator to hear the matter afresh again on grounds that adequate opportunity of being heard was not provided to them during the proceedings. 

Major Verdict of CCI Set Aside:

Earlier this year, in a ground breaking verdict that had sent shock waves in the Cement Industry, the CCI had passed an order imposing cumulative penalty of Rs 6,316 crore after an investigation into complaints of price cartelization among cement firms.  In two well-argued orders, the Regulator had found evidence of price cartelization among major cement firms in India and various other malpractices indulged by them to control the cement prices and limit the supply in the market.  The Commission had noted that “The act and conduct of the cement companies establish that they are a cartel.  The Commission holds that the cement companies acting as a cartel have limited, controlled and also attempted to control the production and price of cement in the market in lndia (para 178 of CCI order)”

On an Appeal by the Cement manufacturers, the CAT Tribunal has not only set aside the order levying penalty but has also allowed the cement manufacturers to withdraw the 10 per cent penalty amount already deposited with the CCI.  The CAT has now asked the regulator to hear the matter afresh on grounds that adequate opportunity of being heard was not provided to them earlier and pass a fresh order within three months.  The companies include ACC, Ambuja Cements, Binani Cements, Century Textiles Ltd, India Cements, JK Cements, Lafarge India, Madras Cements, Ultratech, JP Associates and Shree Cements.

Violation of Principles of Natural Justice:

The CAT believes that CCI has not thoroughly followed the principles of natural justice and has not given the company adequate opportunity of being heard.  The law of natural justice requires that if any incriminating material is to be used against an accused, it is pertinent that such a person or the accused is provided with adequate opportunity to defend himself.  This, the CAT believes is the fundamental error in law and is a sufficient reason for setting aside the order of CCI as the order was not passed in accordance with the law. 

Commenting on the procedures followed by the CCI, the CAT noted “We also feel the time has come for the Commission (CCI) to evolve a comprehensive protocol and lay down guidelines for conducting investigation/inquiry in consonance with the rules of natural justice”.  The CAT also noted "It should be realised that much of the appellate litigation would be obviated if a just and fair procedure is adopted for conducting investigation and inquiry and passing of orders under Section 27, 28 and the provisions contained in Chapter VI of the Act."

CCI didn’t hear arguments of learned counsel

Another grouse of the appellant which was agreed by CAT was that the CCI did not hear arguments of the learned counsel representing the appellants and therefore it could not be said that opportunity of being heard was provided to them.  Given that no such opportunity was provided, the accused could not become a party to the final order passed by the CCI and no penalty can be imposed.

CAT further said that the case records showed that BAI had filed a complaint with CCI on July 26, 2010.  In the complaint, it was alleged that the CMA and 11 cement manufacturers formed a cartel and did not undertake production as per their installed capacity resulting in exorbitant rise in the price of cement.  It was also alleged the cement manufacturers had deliberately manipulated the price of cement affecting the public at large.  Consequently, CCI ordered a probe into the matter, which found major cement manufacturers were controlling the cement market in India and were in violation of various provisions of the Competition Act.  On June 20, 2012, the CCI comprising the Chairperson and six Members passed two orders and declared that the appellants had acted in violation and imposed cumulative penalty of Rs 6,316.59 crore.  All the pages of both the orders have been initialed by the Chairperson. On the last pages of both the orders the Chairperson and six Members appended their signatures without any date. 

CCI chairman was absent on hearing dates

It also was argued before the CAT by counsel for one of the appellants that the "impugned order is vitiated due to violation of the rule that 'only the one who hears can decide'.  They pointed out that even though the CCI Chairperson was not a party to the hearing held between February 21-23, "and had no idea about the contentions raised by the counsel appearing for the parties, not only he became a party to the final order but also authored the same".   This according to the learned senior counsel “amounts to gross violation of the rule of fairness and impartiality and casts a shadow on the integrity of the process adopted by the Commission for adjudicating the issues raised in the information filed by BAI,"

What about the Evidence that CCI found?

One thing that seem to be missing from the ultra-technical legal interpretations and elaborate discussions on justice and fairness is the substantive evidence laid bare before the CCI.  One can argue that penalty could rightly be levied by the CCI on the grounds of substantive evidence alone and the fact that some technical rules had been violated does not set-off the force of evidence found by the CCI

Let us examine the evidence uncovered by the CCI in its proceedings:

Evidence	What it means
Price Parallelism	The Economic analysis of price data indicated that there was a very strong positive correlation in the prices of all companies.  Simply put the cement companies were increasing prices simultaneously in a scripted fashion.
Limiting and controlling production:	The documents obtained from the Commission shows that while the capacity utilisation increased, the production has not increased commensurately during this period and plant wise capacity utilisation across the board had decreased.  Simply put the cement companies were controlling production in spite of having an increased production capacity
Limiting and controlling supply:	The Commission found that the cement companies indulged in controlling and limiting the supply of cement in the market in an organized fashion.
Production Parallelism:	According to the commission, the cement companies reduced production collectively, although during the same period the production of the cement companies differed.  This was the clearest indication of co-ordinated and organized behaviour.
Dispatch Parallelism:	The Commission also observed that the dispatches made by the cement companies have been identical. Such identical despatch can only be a result of co-ordination and collusion.
Increase in price:	The Cement companies created a deliberate shortage in production and supplies.  Since the nature of Cement demand is relatively inelastic in nature this resulted automatically in higher prices for cement.  The Commission noted that it would be impossible to justify the lower capacity utilisation especially in a market which has high demand.  Therefore the behaviour was a co-ordinated attempt at raising prices by cutting production.
Price Leadership:	The commission noted that due to oligopolistic nature of the market and a few major cement manufacturers, the price leaders discussed with the other manufactures to co-ordinate their strategies to increase prices.

Next Steps - How will the CCI react to this order?

It is difficult to predict how CCI will react to this order? Will it go full swing again and levy the same penalty after following due procedures or will the long arms get weary with time.  The most important point to note is that the CAT has not quashed the CCI Order on Merits and neither has it passed negative observation on quality of evidence collected by the competition commission.  It has merely set aside the order on grounds of violations of principles of Natural Justice.  Given the above, all that CCI needs to do now would be to provide adequate opportunity of being heard to the Cement Manufacturers and follow just and due procedure both under the letter and the spirit of law and its fresh order will be legally fit and sound.    

Also, there is no reason that the evidence uncovered earlier cannot be re-used by the commission and its earlier observations cannot be called for again from the companies.  Again the commission also under no obligation to take note of its earlier order or place reliance on earlier evidence collated by it, in what is now a dead letter of law legally. 

So Round 2 of CCI could work both ways in favor of cement companies or against it.   CCI would make sure that CAT should find it difficult to find flaws in round 2 of its order, for this it would go in cautious, measured and studied steps.   But if members who passed the order are retiring, then one has to see how the new team in CCI would take up this legal juggle.  Alternatively, the companies could repeatedly challenge the proceedings before the Supreme Court or CAT in the new proceedings and buy time by exhausting all possible options.  This if done could mean severe delay in time in completion of proceedings and and the penalty may very well become a distant memory.  

The Case for Uniform Civil Code

The term Uniform Civil Code (‘the UCC’) denotes a small field of civil laws relating to marriage, succession, maintenance and adoption. However, given its intimate relationship between religious injunctions, practices and beliefs of communities, any discussion on streamlining these laws into a single codified secular legislation is fraught with risks and raucous contentions. Some see it as an imposition of majoritarian hegemony on the minority community (which currently follows its own personal laws) and others see it as an act of wanton destruction of traditional and religious identities. “Identities” which they say “were nurtured and preserved by the communities from time immemorial”.


This debate takes us to the question that goes into the heart of the matter. “Should traditional and religious practices howsoever controversial, regressive and archaic be accommodated at every cost or should the law makers strive to achieve the ambitious goal of our constitution being equality and fraternity for all?” It also takes us to the deeper question on nationhood itself i.e. “Should a national identity be a mere agglomeration of religious practices of various communities or can the nation have a distinct identity of its own which is secular, progressive and modern to which various communities make small sacrifices so that the nation’s constitutional mandate is achieved and a just and fair social order is established?”


Any answer to these questions is fraught with risks. The risk of status quo versus the risk of perceived state authoritarianism by members of the minority community. Some say it is for minority community to decide for itself what it really wants and uniform civil code must not be established. However, the framers of Indian Constitution were convinced that certain amount of modernization is required if the overarching goal of our constitution Equality and Fraternity for all especially to the women is to be achieved.


The Story of the Hindu Code Bills

Let’s consider for example another debate that happened in the late 1940s. The debate was on Hindu Code Bills. Jawaharlal Nehru, a popular mass leader was suddenly facing his deepest hour of crisis. His law minister Dr Ambedkar, had introduced the Hindu Code Bills in the Parliament. The Hindu Code Bills were arguably the most radical and the most egalitarian piece of legislation of its time. These set of legislations on marriage, succession and adoption sought to override the authority of various traditional practices and religious texts to bring radical social change in the society. For the first time the Hindu Code Bill sought to give the right of divorce to the Hindu Women.


Under Traditional Hindu law, marriage was a religious sacrament and by definition was an indissoluble union. Under the Hindu Code Bills, a woman would be free to divorce her husband at will and would suddenly become the master of her own destiny, the captain of her own fate. A radical social order was about to herald.

Dr Ambedkar had earlier observed “Political democracy without social democracy has no meaning” and in pursuit of this lofty ambition of gender equality, he decided to stake it all. These two great men (Nehru and Ambedkar) sought to irretrievably alter the social tapestry of a largely Hindu nation with a civilization that dated back to 5000 years.


However, this radical notion of equality did not go down well with many people. Large protests were held not only by the religious supremacist but also from the members of the congress party itself. Large rallies were held against the bills. Numerous organizations were formed. They lobbied to defeat the bills and massive amounts of literature were distributed stating that the Hindu Civilization was about to end forever. The critics argued that divorce by women was against Hinduism because to a Hindu the marriage is not a contract but a religious union. The protestors argued that if equal property rights were to be given to women, the Mitāk arā concept of a joint family would crumble and along with it would crumble the foundations of the Hindu society.


While the Hindu code bills was entirely defeated, Nehru in 1956 passed the Hindu Marriage Act and other legislations like Hindu Succession Act, thereby putting an end to the right of a Hindu man to have unlimited wives and also gave legal right of divorce and property rights to the Hindu Woman.


One may rightfully ask if the Hindu man can sacrifice the right to unlimited wives after 1955 and agree to share property with their wives in pursuit of a unified national identity and constitutional mandate, then perhaps the minority community can also consider accepting the Uniform Civil Code which ushers a new era of gender justice for women of the minority community.

And to those critics who claim that there would be large scale opposition to the code, it must be said that the minority community of today is far more participative in nation building exercise than was the Hindu community when Hindu Code Bills were to be passed.


Constitution and Gender Equality


The Constitution of India sought to give every man and woman of India equal human rights despite their living in a deeply patriarchal society. However to achieve this ambitious goal of our constitution, one must synchronize personal laws of major religions of the nation to create a common civil code for all Indian Citizens. It is with this intention, the makers added the clause in Article 44 of the Indian Constitution which states “the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”


The Hon’ble Supreme Court has repeatedly emphasized the need of UCC to settle the ambiguity which has arisen due to the different interpretations of various personal laws. For example, there are at least six schools of jurisprudence among Muslims, four among Sunnis and two among Shias. The Indian Muslim Personal Law is a convoluted amalgam of self-contradicting principles from different schools, but most particularly the Hanafi branch of Sunni legal belief.

The confusion caused by differing interpretations necessitates a common law. On this the Supreme Court had remarked that the personal law of Hindus such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians . The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of national unity and integration. It is only fair that the minority community also accept the same.

In the Muslim personal law, there is discrimination against the wife in three ways :

(1) A Muslim husband can get a divorce immediately without going to court by immediately pronouncing a triple Talaq, whereas the wife who seeks divorce has to go to court and file a petition which usually takes years to decide.

(2) The Muslim husband need not give any ground for divorce and he can divorce his wife merely because he has lost interest in her, whereas a Muslim wife has to plead some ground for divorce mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939, and she has to produce witnesses or documentary evidence in support of that ground, and prove it.

(3) A Muslim man can marry 4 wives, but a woman can, at a time, have only one husband. Today, polygamy is legally permitted to Muslim males. It may be noted that the Hindu male upto 1955 could have unlimited number of wives, whereas a woman could have only one husband. This law was altered by the Hindu Marriage Act, 1955, which provides for monogamy for both the sex.


Strategy for implementing the UCC

The most important question perhaps is how can we give effect to this constitutional mandate? One such strategy would be to have an ‘optional code’ meaning we frame a common code but make it optional for a period of time. Hence, instead of forcing one uniform law down the throats of people, we must give people a sufficient amount of time to appreciate the new law and when a substantial part of the masses accept it then it can be made compulsory. The second strategy would entail a gradual transformation to a more uniform law by ‘incremental changes’. This would require that uniformity be brought about by judicial decisions and simultaneous legislative amendments. The Supreme Court would first declare a law as unfair, unjust and unreasonable followed by an enactment of a more just and uniform law by the legislature. Therefore, there would be a gradual shift from diversified, unequal laws to a more unified comprehensive code a .k. a UCC.


The third and the most direct strategy would be to prepare a Draft UCC and open it for public and parliamentary scrutiny. One may note that these strategies are not mutually exclusive but should operate at tandem towards the same goal.


Let voices of the Moderates be heard

In his recent book ‘India’s Muslim Spring: Why is Nobody Talking about It?’ Author Hasan Suroor argues that since independence a “seismic” and “tectonic” shift has taken place in Indian Muslim community with an emergence of “liberal spring” among new generation Muslim. While, the elder generations of Muslim were “fundamentalist” and “emotional”, “intolerant” of freedom of speech, prioritized “cultural” and “identity” issues over substantive ones and had not so egalitarian view of women folk, the young Muslims in contrast are the opposite of their elders; they, are “tolerant”, “pragmatic”, “moderate”, “secular”, “cosmopolitan”, “optimistic” and “confident” and “forward-looking” as well as “nationalistic” despite their assertive Muslim identity. The popular narrative that Muslim community is represented by the orthodox needs to be challenged relegated to dustbins of history. The Shahi imam of Delhi, the Ulemas and moulanas with their fatwas are not representative of Indian Muslim of today just as the Hindu right does not represent the Hindu community. The new generation of Muslims is ready to rid the community of its insular and sectarian approach and they need to be directly consulted to usher a new era of UCC. And that will usher the desired change.

An American Ghost Story

An American Ghost Story:

Various Research show that medicine prices in the United States are among the highest in the world even when compared to other developed countries. To the bottom 20 percent of the American citizens, most medicines are simply un-affordable. To save money, the US. Customs estimates that at-least 10 million U.S. citizens bring in medications from abroad. An additional 2 million packages of pharmaceuticals arrive annually by international mail from countries like Thailand, India, and South Africa. The US Consumers are also shopping vigorously at low-cost online pharmacies in India, the UK, and other countries where they can save money up to 80 percent or more when compared to the prices in the United States. Perhaps not unconnected with the above is the fact that Big Pharma companies in the US make obscene levels of profits. In the annual Fortune 500 survey, the pharmaceutical industry topped the list of the most profitable industries in the US.


But then why does this phenomenon occur? Why doesn’t the US have price controls on medicines like other developed and developing nations? The answer is because the United States believes in capitalism. Since the days of Ronald Reagan, the US has ordained itself to become the high priest in the temple of capitalism. Its article of faith is that “Free Markets” would “automatically bring down prices” and will automatically lead to increased investment in pharmaceuticals industry and also encourage competitions and boost innovation.


However, as the American experience now clearly shows, Free-market policies followed by the US have miserably failed to keep the medicine prices low. Free capitalism as an arbiter of public health’s destiny has been disastrous failure and the national pharmaceutical policy followed the US over the decades had failed the test. Because the bottom 20 percent of the US population simply cannot afford the prescription drugs, the price controls are now seen as an essential part of every nation’s strategy if it wants to keep the prices of medicines low and to ensure access to medicine by its citizenry.


However, the US may be far from Price Controls on medicines, not only due to its ideological bent of mind, but also because the Big Pharma spends over $855 million on lobbying activities alone (more than any other industry in the USA) to protect its industry’s interest in the Congress.


An Indian Odyssey with the NPPA

In 1997, the government of India setup a regulatory body which it called “an Independent body of experts” to controls the prices of pharmaceutical drugs in India. The body was called the National Pharmaceutical Pricing Authority (NPPA). It was formally given powers to implement, control and enforce drug prices and also monitor drug shortages and take appropriate actions to rectify it. It advices the government on policies relating to drug pricing and monitors the data on export and import of drugs.


In 2013, the NPPA issued guidelines to have a uniform policy for price fixation under the Drug Price Control Order of 2013. The guidelines said that the NPPA would monitor “inter-brand price differences” between drugs of similar formulations on the basis of maximum retail price (MRP).


This was to be done to track companies selling the same formulations at super normal prices when compared to the Industry prices. In its analysis, the NPPA was dumbstruck and wanted to understand how considerable price differences in the market prevailed between different brands of the same drug formulation that were identical to each other in terms of active pharmaceutical ingredient, strength and dosage.


The NPPA then realized that the main reason for market failure in normalizing the prices of medicines in India is because in India, access to medicine, was largely prescription-driven and the patient had very little choice in this regard. In other words, the patient was buying medicines of ‘the brand’ the doctors were recommending despite the same formulations and the same dosage available at half the prices in another different brand or as a generic drug.


The NPPA then noted the huge inter-brand price differences in branded generics/ off-patent drugs. It further stated that given the significant role of pharmaceuticals in the realm of public health, the intervention of the government was mandated when exploitative pricing by pharmaceutical companies put a huge financial burden on the common man and on health care.


Therefore, the NPPA, in accordance with the powers conferred on it and in line with the newly framed guidelines, issued well-articulated and well-argued orders imposing price control on 108 drugs which outlined the need to fix prices in the face of market failures to ensure the affordability of medicines.


In July 2014 in a series of well-argued 50 orders, the NPPA put 108 drugs, mostly antidiabetics and cardio-vascular drugs, under price control. The NPPA’s focus on price control on anti-diabetes drugs was crucial and justified on the basis of very high incidence of diabetes in the country. According to International Diabetes Foundation Diabetes had moved from being “a rich man’s disease” and now affects all the segments of Indian population and that India is on the verge of becoming “the diabetes capital of the world” with around 61 million people affected by the disease and is expected to cross 100 million people by 2030. Given the scale of diabetes epidemic, the NPPA justified its price control orders.


On hearing the above, all hell broke loose in the Indian Pharma. The Indian pharma industry reacted very aggressively to these decision. Both Indian and multinationals raised concerns that “India’s investment image” had gone to the dogs and that the industry would have to shut down if the same trend continues. The Indian pharma lobbies also filed in the Delhi and Bombay High Courts, and prayed for a stay order which they were not granted as many Supreme Court judgments had earlier justified price controls on medicines in public interest


Modi’s Government rescues India’s Investment Image:

Given the relentless Industry demands, the Modi government decided to clip the wings of NPPA which was supposedly an expert body of regulators and withdrew their powers to pass such orders in the future. The decision of Modi government to withdraw the powers of the National Pharmaceutical Pricing Authority (‘NPPA’) to set price caps on drugs raises serious questions on the state’s commitment to the welfare of the poor. As a result, over 108 essential drugs will now lie outside the ambit of NPPA and its internal guidelines on regulation and control of drugs would cease to apply to them.


According to the government, the reasoning for withdrawal of powers of NPPA and clipping of its wings was because “it lacked legality”. Interestingly, the Modi government has found that NPPA was not legally competent to pass price control orders after over 17 years of its creation and immediately after it passed orders that would restrain pharma companies from making super normal profits.


The Future of NPPA:

Earlier, the NPPA had planned to put under price control on many more life-saving drugs like anti-asthmatics, anti-malarials, immunologicals etc. But with Modi clipping its wings, this is now impossible.

A state like India, which has a large number of poor people has a bounden duty to ensure that access to medicine remains within the means of the common man. Either the state must setup its own companies to manufacture drugs at affordable prices for its people or put price controls to the market prices. Since the former appears to be distant, it is critical that the NPPA is re-created as an independent statutory agency, made up of renowned experts from industry to fix prices of drugs, in a manner that helps the companies receive a reasonable return on their investment while simultaneously ensuring the larger objective that the right of access of the medicines continues to be affordable. If for financial reasons, poor citizens of India are unable to afford medicine, then the introspection lies on the conscience of the state.

Pakistan - The Siege within

The Recent media reports on border violations and unprovoked firing by the Pakistani army has to be examined from a much larger perspective of Pakistani army’s calibrated provocations to India. To start with, one must ask the question why does the Pakistani army keeps upping the Anti-India behavior along the international borders? Why do Pakistani politicians like Bilawal Bhutto keep rising ‘the Kashmiri pitch’ from time to time? What explains Mr. Pervez Musharraf’s anti-India rhetoric? Are these merely political statements with no substance or is there something deeper and sinister in the offing? Answering these questions requires an understanding of the fault lines, the multiple power centers and the oligarchy which runs the state of Pakistan. It also requires us to gain insights into insecurities of a periphery state and which is motivated more by ideology and less by pragmatism or rational behavior.


Understanding the Geo-Strategic Curse on Pakistan


The General and accepted narrative on India-Pakistan partition is that the two nations were partitioned by the British from the Indian subcontinent because Hindus and Muslims could not reconcile their differences and Hindu-Muslim riots continued unabated under the leadership of Muslim league. We are told that Jinnah, the leader of Muslims wanted a separate nation of Pakistan ‘to protect and preserve the future of Islam’ and where the Muslims would be provided with ample physical security and safety from hegemony of Hindus who constituted the majority of population in India. This is the accepted text book story of India’s partition and creation of Pakistan.


However, Narendra Singh Sarila in his book “The Shadow of the Great Game: The Untold Story of India’s Partition” presents an alternate account of India’s partition. He claims that Britishers during the 40s were looking to create a buffer zone in the Afghanistan-Pakistan borders ‘to prevent the expanse of the Russian Bear’ ie to halt the rising influence of erstwhile USSR whose powers reached its zenith and diktats ran as far as Afghanistan. Since the western powers during the cold wars wanted to contain rising power of USSR and to prevent it from accessing warm water ports in south Asia thereby prevent it from accessing the oil routes. They wanted to leave a bufferzone in the area, a zone which would be preferably under the control of the western powers.


Further, the Britishers feared about the USSR gaining control of the oil wells of the Middle East – the wells of power in 40s. Given Nehru’s idealism in foreign policy, his socialist slant towards USSR and his policy of Non-Alignment with any global powers including US and UK, it was unlikely that he would play the British game in the cold war to prevent rise of the USSR power and contain its influence in AF-PAK region. Once the British leaders realized that the Indian nationalists would not join them to play the Great Game against the Soviet Union, they settled for those willing to do so. In the process, they did not hesitate to use Islam as a political tool to fulfil their objectives. Therefore the author claims that they were more than amenable to the idea of partition where Pakistan a strong and permanent ally of the west could be created in the regions of North western Frontier Province between Afghanistan and India thereby maintaining strategic interests of the west in the region.


The Game of Balance of Power


The Geo strategic curse on Pakistan did not end there. The US administration led by Nixon-Kissinger was interested in Pakistan in 70s and 80s for two reasons. One, the US wanted to use Pakistan’s borders to supply arms and provide covert weapon training to help Afghani Mujahedeen who were fighting the soviet war. Pakistan, the permanent ally was to be used as a proxy to supply to enable the Afghani Talibans to win their battle for homeland. The US interest, of-course, was containing USSR and to win the cold war.


Two, the Pakistan was to be used as a bulwark against India who was siding with the USSR and would also enable ‘opening up’ of Communist China for Business which would bring benefits to US Businesses houses. Today the same geo-strategic curse is being played out in different form. Pakistan lends itself to be used as permanent ally as long as it gets foreign aid. It is permanent ally of the US in its war against terror and also a permanent ally of China to enable it to have strategic control over Indian Borders. The US provides billions of dollars to Pakistan to ensure that its ally remains a permanent ally which allows the US to use the sea ports and airports for various strategic reasons.


Large Foreign Aid causes states to underperform


Given the varied strategic interests of many permanent allies and global powers, which were at times contradictory and at times deeply intrusive in domestic politics of Pakistan, Pakistan failed to create its own democratic institutions and failed to invest in independent institutions which would create a strong civil administration or a democracy. It is in short as Foreign policy Magazine calls it “A Failed State”. Its constant dependence on foreign aid, has led to the state becoming complacent in its political or economic affairs.


Understanding Pakistani Army, the multiple power centers in Pakistan and the Insecurities of a Periphery State


The First thing to understand about the Pakistani army is that, the Army of Pakistan today is not controlled by the state. In other words, the civil administration of Mr Nawaz Shariff exercises as much control over the Pakistani Army as the president of India Mr Pranab Mukherjee has over the house of the Indian Parliament. It plays a nominal role with no real control and subserviently accepts the diktats or recommendations of the army chief.


But how did the Army come to become so powerful in a way that it has veto power over its own government all matters connected national security. To answer this question we must go back to December of 1971. In December of 1971, the Supreme Court of Pakistan on the request of President Zulfikar Ali Bhutto set up what was called the Hamoodur Rahman Commission which went into the reasons for causes of Pakistani army’s defeat in the 1971 Indo-Pakistan winter war which led to Pakistan losing half its territory and resulted in creation of Bangladesh. The defeat was arguably the worst defeat the nation had ever faced in its history where 93000 Pakistani soldiers surrendered after India entered the war at insistence of Mrs Gandhi. Mrs Gandhi’s interest of course was to prevent large scale humanitarian crisis on our eastern borders. While the Commission lay the whole blame for defeat on the shoulders of the Army and political aspirations and opportunism of Army officers, Pakistan also realized that political bickering and lust for office by politicians of West Pakistan had led to the crisis in the first place.


This bickering cannot be afforded again. Pakistan now had a choice, its state had already been split into half. It would either modernize its army to prevent such recurrences or disappear into oblivion. Basically, the army was facing its moment of introspection and the state had been plagued by the deep insecurities of a periphery state. The Insecurity which is faced by state in its moment of existential crisis.


The Desire for Strong National Army led to army officers gaining large public support in Pakistan and came to be seen as patriots and protectors as against political class which was opportunists and power hungry. Basically the state and its citizenry had lost faith in its own political class. The State simply could not afford another Bangladesh and the citizenry craved for doing a Bangladesh on India for avenging what it calls its unnecessary intervention in what was its domestic affair in East Pakistan.


The Army with a State


Given the Army’s growing influence and large investments and judicious foreign aid by global powers, the army moved from strength to strength to arm itself to teeth and even became a nuclear power. In her book Military Inc, the pakistani author Ayesha Siddiqa shows how the military has gradually gained control of Pakistan’s political, social, and economic resources of the state. This power has transformed Pakistani society, where the armed forces have become an independent class.


The Pakistani Army officers control vast territories of land in the country and own and control corporations like Shaheen Group, Baharia Group and Fauzi foundation which has business interest to a tune of billions of dollars. The military is entrenched in the corporate sector and controls the country’s largest companies and large tracts of real estate. The Pakistan’s companies and its main assets are in the hands of a tiny minority of senior army officials. The assets of the army officers who run the largest companies in Pakistan exceed $20 billion. In other words, the army is politically, economically and socially an independent class which comprises the largest power centre in Pakistan.


This explains why we see border firings when Pakistani ministers are in peace talks with India in sharm al sheikh or why Pakistan first agrees to send director general of ISI after 26/11 attacks but later retracts or why the state has not been able to act against perpetrators of the 26/11 attack. Simply, put the civilian administration’s diktat’s end where the domain of the army begins.


Why Unprovoked Border Firings and Provocations?


In the book the ‘The Warrrior State’ by TV Paul, the researcher points out that the Pakistani Army is motivated more by ideology and less by Pragmatism or reason. Its officers crave to do a Bangladesh on India and are deeply patriotic. Pakistani army sees Kashmir as the last bastion where Bangladesh can be avenged. The army employs non-state actors under its security and even started three wars with India over Kashmir in 1947, 1965, and 1999 but failed to win any of them. Yet, it has successfully sustained a proxy war in Kashmir since 1989 using Islamist militants, some of whom have now turned their guns against the Pakistani state. Researcher Dr Christine Fair in her book “In Fighting to the End” after analyzing decades’ worth of the army’s own defense publications concludes that “from the army’s distorted view of history, it is victorious as long as it can resist India’s purported drive for regional hegemony as well as the territorial status quo. Simply put, acquiescence means defeat.”


In other words attacking India or provoking India into a war is in itself a victory because the status-quo is seen as an abysmal failure in the Pakistani Army. Researcher Dr Christine warns that the Pakistani Army will be “Fighting to the End” just as Hitler’s Germany did and would not surrender at any cost like the one in 1971 Bangladesh. Ideology and Honour today is far more important than the lives of Pakistani citizens or casualties as the army is not controlled by a representative body of the people like a legislature or a parliament.


The Researches further warns because the army is unlikely to abandon these preferences, the world must prepare for an ever more dangerous future Pakistan and a dangerous and autonomous Pakistani Army which unfettered by democratic leadership or diktats of civilian government could wreak havoc in pursuit of its own ideology and in pursuit of revenge.


So How Should India Respond?


Firstly India must understand that the Pakistani Army is not an Institution controlled by the State, it would be unfair to target civilian outposts in minor skirmishes across the border as civilians and the local government across the border has as little control over their army as we have over theirs.


Since Pakistani Army knows that the global powers would not allow two nuclear armed nations to enter into a war and India has ‘a no-first use policy’, the Pakistani army would try and take tactical advantage of this situation by entering into minor skirmishes and short firings and make a hasty retreat. The policy is basically ‘hit and run’ to make some quick gains and quick killings.


India can avoid this situation. India being a democracy and a responsible power cannot be expected to deal in the same manner and in the same language as an organ of the failed state does. Simply put India should not focus on Tit for tat. If it does so, it would be playing into the hands of an overzealous ideologue filled army which wants an all-out war with India.


India’s response must be cohesive, calibrated and must be to focus on its own security interest and to ensure peace in the region and to protect lives of its own citizens (especially those near the borders) and avoid collateral damage. It is not suggested that the Indian army must not fire back when its posts are attacked but India must focus on other solutions. India must deploy spy satellites and watch towers on the International border and increase border intelligence to incapacitate Pakistani army’s ability to attack and identify key areas where attacks are coming from. This data could also be submitted to the UN which adds credibility of Indian Army’s calibrated response. It must prevent the situation from going out of control and prevent escalation of aggression into a war. An all-out war may possibly ensure that the failed state disappears from the map but the process would be excruciatingly painful for people of the sub-continent.


What Binds Pakistan Today?


The only factor that Binds Pakistan with its divisive group of Pashtuns, Punjabis and sindhis is the hatred for Indian state. Religion as a binding factor of nation state was decisively defeated when Bangladesh was created. Language is not the binding force for Pakistan as Pashto, Punjabi, Baluchi and Urdu are hardly discernible to one another. Further the historical Shia-Sunni conflict in Pakistani community and the hegemony of sunni wahhabi Islam over other Islamic practices leaves a lot to be desired to call Pakistan a cohesive and peaceful society. Leave alone the fate of Hindus and Christians who suffer religious persecutions in Pakistan even Muslims are not spared there consider for example an estimated 2.3% of the population are Ahmadi Muslims, who are officially considered non-Muslims by virtue of a 1974 constitutional amendment and are treated as pariahs in the state.


Therefore the divisive self-imploding society of Pakistan needs a binding glue which can be used by politicians for their political gains and to make people rally behind them and consolidate their vote banks using an ecumenical solution.


The answer comes from the Anti-India rhetoric and the Kashmir rhetoric which drives passions in their populace. It appears young Bilawal Bhutto has learnt his ropes very quickly when he started the Kashmiri Pitch recently.

Land Wars

Recently, at SV Global Mills Limited (which is a Binny Group Company), the Promoter group led by M Ethurajan and his son E Shanmugam has wrestled control of the company from its veteran director Mr Natarajan who is another promoter of the Company. At the AGM, the shareholders recently rejected the resolution for re-appointment of Mr Natarajan as a director to the company’s board. Given that SV Global is a publicly listed company, this triggers the speculations that SEBI may step in and ask for Open Offer process to be implemented in accordance with SEBI Take Over code because control of the board has been effectively transferred. At the heart of the whole issue is land and properties owned by the company to a tune of Rs 2000 crores (which was earlier a part of Rs 6000 crore land bank held by the Binny Group).


When John Binny founded the Binny and Co in 1797 as a clearing and forwarding agency (which later ventured into textile business as Buckingham Mills in 1876 followed by the Carnatic Mills in 1881). He would have never imagined in his wildest dreams that the company he founded, would one day, be valued and fought over, not for the business of Yarn or textile, not for efficiency of logistics business he was proud of, but purely based on the real estate the company holds. Two Centuries later the Land Bank held by the Ex-BIFR Binny Group Companies exceeds well over 6000 crores.


The Binny Story – A short history


John Deaf Binny arrived in India in 1797 to work for the Nawab of Carnatic. He established Binny & Dennison (with Robert Dennison) in 1799. The firm with its headquarters on Armenian Street, was an agency house representing British interests in South India. During British India and after Independence, Binny Group was progressively formed over the years by amalgamation of various textile and allied companies like the Buckingham & Carnatic, The Banglore woollen, Cotton & Silk Mills, Madura, The Ganges Transport & Trading, Binny & Company and Binny’s Engineering works.


Since the Britishers had never modernised the mills, this led to its products becoming uncompetitive in the market due to reasons of Technological Obsolescence. Also there were huge floods which went on to further affect the company’s fortune. The mills closed since 1970s with no operations whatsoever. In the early 1980s, a Coimbatore based group wanted to operationalize the company but looking at the huge labour issues, the unrelenting attitudes of the unions, the debts which could not be re-structured they called it a day.


Later in the 1990s the Udayar group, entered the business. However, their interest was not in textile or logistics or engineering but primarily in the huge real estate bank the company held. The Udayar management too couldn’t do much as the operations were simply infeasible because of obsolete machinery, huge debt pile-up and most importantly various unrelenting labour issues and union problems. The Company was declared a sick unit by the Board for Industrial and Financial Reconstruction (BIFR) in 1993. It then came out of the purview of the BIFR by the order of the Madras High Court.


Demerger to settle the ownership issues


In the year 2012, the shareholders of Binny Group voted for a demerger to amicably settle ownership issues in the company. The goal was to distribute the company’s land bank amicably and in fair measure to promoters who were the large shareholders of the company. This would be done by splitting the company into 3 different companies (including the existing Binny company). The demerged businesses are called Binny, Binny Mills and SV Global.


As per the demerger scheme, S V Global Mill went to M Ethurajan and his son E Shanmugam, Binny Mills to V R Venkatachalam (son of late N P V Ramaswamy Udayar) and the existing Binny to M Nandagopal. The fourth promoter, S Natarajan, remained the common promoter with nearly 19% stake in all the entities. All four promoter groups together hold 75% while the rest 25 percent was held by general public. After the demerger, the promoters transferred shares to each other so that each promoter had majority control over the demerged companies. The promoters transferred shares in companies which he did not control in favour of the one who would be controlling it. Public shareholding in all the three demerged remained at 25% as usual.


The Present promoter feud at SV Global Mills


The present feud at SV Global Mills arises because the promoter group led by M Ethurajan and his son E Shanmugam, Binny Mills believe that they rightfully own the company based on the demerger scheme approved by the shareholders earlier which was done to settle the ownership issues. It is believed that the group wants to retain the entire control over the company. However, this does not seem to go down well with Mr Natarajan, a veteran promoter director who was also one of the original four promoters of Binny when the Udayar group took over the sick textile company in 1987.


It must be noted that Mr Natarajan who holds 19 percent in the company and has been director of the Binny Group for the last 25 years. He is widely acclaimed for reviving the fortunes of the 200-hundred-year-old textile company and also credited to have taken the company out of the clutches of BIFR thereby unlocking the potential of the company’s real estate. To him the credit must go the solving of various management, legal and labour problems of the company which enabled the company to have been able to enter into ‘the demerger process’ in the first place.


If the company was still with BIFR, every decision by the shareholders or the board of the company required approval by the BIFR board, under the BIFR law, which in business terms made any deal simply unworkable.


Resolution Re-appointing Mr Natarajan is Defeated


The battle lines were drawn when recently, at the Annual General Meeting of the Company, the shareholders and promoter group led by Mr M Ethurajan and his son Mr E Shanmugam defeated the resolution for re-appointing Mr Natarajan as the director of the company which virtually ends any control that he can exercise over the company. All decisions of the company will be henceforth taken by the former promoter led group and its nominees.


While it is not for us to comment on the propriety of Mr Natarajan’s ouster, however if all the procedures of Companies Act 2013 have been duly followed and the majority of shareholders have decided to side with Mr M Ethurajan against his re-appointment, then in all fairness, that decision must be respected as it represents the democratic mandate of the majority shareholders of the company.


Under the extant Company law, the shareholders of a company, acting in a collective manner, have the right to appoint or remove whomsoever they please as the director of a company. However if procedures have been violated then Mr Natarajan can approach the Company Law board or National Company Law Tribunal as the case may be.


Will SEBI Take Over code kick in resulting ‘a public offer’?


Since SV Global is a public listed company, many company law experts believe that this ouster of

Mr Natarajan will kick in the SEBI Take over code aka SEBI (Acquisition of Shares and Take Over) Regulations 2011 which defines the term ‘control’ in a very broad sense. They believe that the ouster of Mr Nataran has resulted in transfer of board control from joint control by promoters to sole control of Udaya group. Also, if the SEBI (take over code) comes into play, the minority shareholders would gain as the valuation for share price would need to be done on market value which will increase manifolds due to increased market value of land the company now holds.


If SEBI take over code comes into play then Open offer will increase the share price substantially from the existing 371 crore of market capitalization to at-least 2000 crores which is based on market value of land held by the company.


However other experts also believe that the SEBI (Take over code) may not kick in as removal of director is provided as an exception in the SEBI (take over code) itself under Regulation 2(e) which reads “Provided that the director or officer of a target company shall not be considered to be in control over such target company, merely by the virtue of holding such position”. Therefore the other set of experts argue that since the director under the code is not considered as a person who is control of the target company, his removal cannot be equated to transfer of control or ‘a Take Over’


While these legal issues are for courts to solve, one feels that surely the Udaya group would have obtained legal opinion on this matter before proceeding with it as their move of removing

Mr Natarajan could potentially lead the company into SEBI’s legal jungle or long court room battles both of which starkly diminishes the Udaya group’s prospects of unlocking of real estate deals which lie ahead for the company.


How to solve the dead lock at SV Global?


Again, the whole issue is about the land and properties held by SV Global. Instead of a prolonged legal battle which may take years to solve, Udaya Group can sit with Mr Natarajan and identify lands which can be transferred to Mr Natarajan for his 19 percent stake in the company. The company can again be demerged into two new entities with the approval of court. Courts generally accord approvals unless creditors or any other stake holders raise objections. Thus the company can go in for another round of demerger and the two new demerged entity would be led by Udaya Group and Mr Natarajan separately both in their own forts as majority share holders. This way the group can solve its problem rather than enter into long legal battles which helps only their law firms.


Any other similar compromise is likely to happen. If compromise happens, in a year’s time we can hope to see ‘new gated premium real estate projects’ with swimming pools and jogging tracks on the Binny mills properties. Ofcourse the Tamil film industry that had been shooting various movies inside the Binny Mills would have to find another place.

Autumn of the Matriarch

The unseating and disqualification of a sitting Chief minister, by an unprecedented ruling of a special court, for massive political corruption, will go down in history to demonstrate the resilience and strength of the Indian legal system. While this is a historic judgement which sends a message of zero tolerance to those in power, many political observers believe that it would be wrong to write off the matriarch as both her public support and her control over the party remains ‘absolute and untrammelled’. Also, it would be wrong to see the recent conditional bail by the Supreme Court as an acquittal because a difficult legal battle lies ahead for the Matriarch. A legal battle which would make or break her future career in electoral politics.


Charles Dickens once remarked “It is the best of times, it is the worst of times. It is the spring of hope and it is the winter of despair.” While Dickens may have wanted to show the best and worst times can lie in unison while referring to English society, it is tempting to use the same analogy on the political career of Ms Jayalalithaa. Her best time and her worst time seem to co-exist now. It is her ‘spring of hope’ with unprecedented public control over the party affairs at the same time it is ‘the winter of despair’ as her electoral career has had a judiicial roadblock with years of incarceration ahead.


Disproportionate Wealth Case – The judgement that shook Tamilnadu


Let us look at the facts of the case which has altered the political landscape of Tamilnadu like few others before.


The criminal case against Ms Jayalalithaa was set in motion when Dr Subramanian Swamy, then President of Janata Dal, lodged a complaint before the Special Judge under Prevention of Corruption Act alleging that the former had wealth disproportionate to her known sources of income.


Hundreds of adjournments and over eighteen years later, and after exhausting all possible legal remedies under the law, Judge Michael D’Cunha of Bangalore Special Court found J Jayalalithaa guilty of corruption. The prosecution’s case was that she had acquired the wealth of Rs 66 crore during the check period 1991 to 1996 whilst she was the chief minister in office drawing Rs 1 as her official salary.


The Judge ruled that the prosecution had proved its case beyond reasonable doubt and sentenced her and others to four years of simple imprisonment under the Prevention of Corruption Act 1988 and also imposed a fine of Rs100 crore on her. All her illegally acquired assets were ordered to be attached by the court and recovery if any will be adjusted against her fine payable to the state.


The 18-year legal battle with various attempts by the accused to delay the judicial process came to a definite halt after the unprecedented verdict of Judge Michael D’Cunha.


How were Immovable properties acquired?


According to the court judgement, “the firms floated by them, amassed properties and pecuniary resources to the tune of Rs 66,64,73,573 during the check period from 1.7.1991 to 30.4.1996”. We have provided below the modus operandi in which Jayalalithaa and others obtained large tracts of land totalling up to 3000 acres and various other movable and immovable properties using shell companies and firms acting as her front
A series of shell companies and dummy firms were created by Jayalalithaa and others. As per the court records 32 firms and companies were created to acquire immovable assets
The only purpose of these shell companies and firms was to acquire movable and immovable assets for the accused
All these shell companies and firms were owned and controlled by the accused and others
Some of these companies and firms, in turn, entered into partnerships with other firms in which the accused and others were again partners.
These new partnerships were again used to acquire more immovable Assets
Bank transactions revealed that the money used for acquiring these properties
came from the accounts of Jaya Publications in which Ms Jayalalithaa was a partner.
The transactions were directly traced with the accused as the companies had no other source of income of their own


The judge wrote in the judgemet “Scrutiny of various bank accounts maintained in the names of A-1 to A-4 and in the names of the above firms disclosed huge credits in cash had been frequently made into various accounts which were not commensurate with the income of the individuals and of the Firms concerned. There were frequent transfers of amounts between one account to the others to facilitate illegal acquisition of assets”. Further he also wrote “The above documents establish that though the company was started in 1990, it did not commence any profit making activities”


Further he showed that the companies and firms were a sham and shell. The judge wrote “there were no business activities at all in respect of many of the above Firms, and in respect of others, the activities were more in the nature of acquiring assets like lands, machinery, building etc., which were not production oriented. No income-tax returns were filed by these Firms. No assessment for commercial tax has also been done with respect to the business of these Firms”


Jayalalithaa’s failed defence


The defence of Jayalalithaa was that she had no knowledge that the other accused were acquiring the assets and she had no connection with them. To this the judge responded “It could not be believed that being the Chief Minister of a State, she was unaware of the large-scale activities carried on by persons living in her own house’


The judge also dismissed the defence that the court needs to make a distinction between company and a private person as company is a separate person under law. To this the judge responded, “illegally amassed wealth, running to nearly 3000 acres of land, is parked in these shell companies obviously for the reason that this arrangement provides convenient leeway to enjoy and deal with the properties registered in the name of the companies and even dispose them of merely by passing a resolution.”


A last attempt at defence was also made by stating that the remittances received were from the sale of the newspaper and collections under Jaya Publications by name Dr Namadhu MGR. This was also dismissed by the judge as no evidence was provided to the court and the bank accounts were opened after the corruption cases were registered against the accused. This the court said was “an after thought”.


Efforts were also abound to fabricate documents to prove receipts of income to account for various assets that were purchased. The Judge observed “under mysterious circumstances as the auditors of A-1 and A-2 themselves had stated before the Income Tax authorities that the documents pertaining to the receipt of deposits by Namadhu MGR were lost in transit and therefore could not be produced, but surprisingly, during the examination of the defence witnesses, the accused have got summoned these documents from Income Tax Department which speaks in volume about the manner in which the accused have fabricated evidence in support of their false defence”


All in all the hard work of the vigilance department and meticulous efforts by the investigating agency and hard facts and pieces of evidence presented before the court outwitted some of the most arcane legal arguments put forth by the best legal minds in the land. Investigator Mr Nallamma Naidu conducted a thorough and scientific investigation. He meticulously collected the chalans and receipts from banks into which the accused and others had transferred money from various sources, including the business enterprises or shell companies in which they were partners.


The Supreme court bench had earlier ruled “Be you ever so high, the law is above you,” The judgement of Judge Cunha handing down a fine of Rs 100 crores and a 4 year prison sentence demonstrated the veracity and power contained in the judgement of the Supreme Court.


Turning Point in the Trial


The turning point in the case came when the Supreme Court transferred it from a Special Court in Chennai to a Special Court in Bangalore on November 18, 2003. Anbazhagan of DMK had filed a petition before the Supreme Court seeking transfer of case out of the state. He stated in his petition that the police officers, who were under the control of the state government, could not be expected to prosecute the cases diligently against Jayalalithaa, who was the Chief Minister of the state. In the petition he said that after the AIADMK returned to power in May 2001, a new prosecutor was appointed in the case and most of the prosecution witnesses were recalled for cross-examinations and they turned hostile. Anbazhagan alleged that the public prosecutor did not object to the witnesses being recalled. Anbazhagan further alleged that the public prosecutor did not make any effort to declare them hostile. Therefore in substance it was impossible to convict the accused if the case was tried in the state. Allowing the petition, the Supreme Court noted:“The petitioner has made out a case that the public confidence in the fairness of the trial is being seriously undermined…. There is a strong indication that the process of justice is being subverted”. Once the trial was transferred out of Chennai to Special Court in Bangalore, the prosecuting agency was unstoppable in its path to conviction


Role played by DMK in the case


The role played by the DMK is equally remarkable. DMK pursued the case with zeal and fervour. Karunanidhi even wrote an eight-page series in the DMK organ, Murasoli, tracing the history of the case, including its vicissitudes. The DMK government had instructed the prosecutors to ensure that the investigating agency never overestimated the value of properties bought by Jayalalithaa and the other accused so that no mala fides could be attributed to the prosecution. This made the case strong.


Jayalalithaa is disqualified from contesting for 10 years


Under Section 8 of the Representation of the People Act, 1951, anyone who is convicted and sentenced to imprisonment under the Prevention of Corruption Act stands disqualified for six years from the date of his conviction along with the period of sentence of imprisonment. Therefore a total of 10 years has to pass before Jayalalithaa can stand for election. Accordingly, due to her conviction, Jayalalithaa now also stands disqualified as a member of the Tamil Nadu Assembly and therefore ceased to be the Chief Minister from the day on which her conviction was confirmed by the Special Court.


The assets of Jayalalithaa and others


Among the assets the accused acquired, the charge sheet said, were 1. palatial farmhouses and bungalows in and around Chennai, Neelangarai, Sirudavur and Paiyanoor; 2.agricultural land at Utthukottai and Tirunelveli; 3. Kodanadu Tea Estate in the Nilgiris; 4. industrial sheds in Chennai; 5. cash in bank accounts; 6. investments in financial firms; 7. diamond and gold jewellery; 8. a cache of wrist watches; 9. farmhouses in Hyderabad; 10. hundreds of saris and footwear. These were in Jayalalithaa’s name or in the names of the other accused or firms in which Jayalalithaa was a partner.


Tamilnadu – A Theatre of Absurd


On the day the conviction was announced, violence broke out across the state. AIADMK cadres set fire to some buses, stoned the windscreens of others, and forced shopkeepers to close their shops. Government buses stopped running and public and private transportation system came to a complete halt. Next the State of Tamilnadu witnessed a spectre of sycophancy and servitude, perhaps never before witnessed in its history. There were reports that over 100 people had committed suicide and others prayed to god and performed poojas that their mother should return back safe. Even the titular appointee Mr Panneerselvam took oath displaying deep loyalty with tears in his eyes and a sense of loss.


Rejection of bail by Karnataka High Court and Tears of Despair


The legal team manned by India’s top lawyer Ram Jethmalani appeared before the Karnataka High Court to seek bail for the accused. When the public prosecutor stated that he had no objection in granting bail to Jayalalithaa, there was celebration in the Air. Many news channels reported that Jayalalithaa was granted bail by the Karnataka High Court. However, the absurdity was revealed when the sudden celebration stopped. Someone read the bail order and proclaimed that Bail was denied. Here it is surprising to see how the public prosecutor representing the state stated that he had no objection in the Bail. Clearly, the forces in the background were working overtime. The Karnataka High Court by rejecting the bail again sent a strong message that corruption cases must be considered akin to Human Rights violation


Subsequent Conditional Bail by the Supreme Court on Medical Grounds


It is important that the grant of conditional bail by the Supreme Court on medical grounds and stay of sentencing for 2 months must not be seen as an exoneration or acquittal of Ms Jayalalithaa. Perhaps, there are two reasons why bails was generously considered in her case. One, the courts historically have shown lenience on granting bail to women and those who could demonstrate medical reasons for bail. Two, the bail is also a right of the accused under the constitution which has to be granted to the accused.


The Real question here is whether the Matriarch could influence witlessness and the proceedings of the case and change the case to her favour when it goes for an appeal. The possibility for this seems to be remote as Judge Cunha has not only given a strong judgement which stands on solid legal foundations but he has also taken efforts to meticulously write all evidences presented against her in the judgement itself. This is large part freezes the facts of the case and does not provide opportunity to tamper with evidence and appellate courts do not normally entertain new facts or new evidences to be brought before it and change of track by old witnesses which supported prosecution’s case. Also the jurisdiction of the case still lies in Bangalore and not in Chennai which means her party cadres and loyalists would have little control over the affairs of the case.


Lastly, the Supreme Court has also ruled that the case must be fast tracked and completed within three months and appeal papers has to be submitted in two months’ time by December 2014. Legal experts believe that it is unlikely that it would be achieved and the likely possibility is that an extension for completion may be applied in her case by the fast track court to the Supreme Court.


It must be noted that it is in Matriarch’s interest to get a favourable verdict and win the legal battle quickly so that she can stand for state assembly election of 2016 which is not very far. As of date the taint of conviction is still there which disqualifies her from contesting in the MLA/ MP election in the state.


The Future of ADMK and Jayalalithaa


Jayalalithaa’s journey has been a long one. She transformed herself from a starry eyed starlet of the tinsel town who set the silver screen ablaze with her oomph, charm and charisma to a consummate politician who ruled with unflinching streak of ruthlessness and a politician known for strategic political manoeuvres. She was the ‘the wronged women’ who stormed the corridors of power to acquire the political heirship of MGR landing finally a Convict No 7402 at Jail for getting on the wrong side of the law. Her career has seen such ups and downs which very few can ever claim parallel with. From being the first to act with skirt and sleeveless and shorts on the conservative Tamil cinema screens to perhaps the first to demolish the bastion of Dravidian Caste politics when she became the upper caste leader of a party formed to fight upper castes, in a state where her caste is minority and considered to be an oppressive one.


However, given her iron grip over the party and no second in line command it is believed that ADMK could face slow implosion from within if no leader takes charge in her absence. It is also unlikely that she would be able to wield power continuously for 10 years micromanaging the party from Jail. Further, her growing age and slow decline over the party’s affairs would lead to an untimely end to a person who in the height of her glory acquired public following no less than her prodigious mentor MGR himself.


Now if ADMK cadres do not throw up another leader, their decline and fall is imminent and the gainers would be the other Dravidian party despite their corrupt track record and deeply entrenched dynastic politics. While some believe that it is unlikely that BJP would be able to make headway in a state with which it has little connect others disagree and are banking on Modi Wave.


Anyway it is time for her to groom a core team and a leader who will look at affairs of her party in her absence. If she fails in this, the decline of ADMK is a foregone conclusion. Its time to act in party’s interest to stem its decline.


The story of the rise and fall of the mighty matriarch from dizzying heights of success is remarkable. However, it would be wrong to write any epitaph on Ms Jayalalithaa because her public support seems to rival even MGR. Again, if the political history is anything to go by, many leaders have risen from the ashes like the mythical phoenix.


Indian democracy never ceases to surprise. Perhaps it never will.