Decoding the judgment

A few minutes after the Yamagandam ended on Tuesday, February 14th the Supreme Court reversed the blatantly wrong judgment of the Karnataka HC and upheld the bold and righteous verdict of the trial judge, d'Cunha.

Is this a cause for celebration or sober introspection? The judgment shows up the following saddening aspects of our polity:

1) Jayalalithaa who ruled Tamil Nadu for more than a decade has been pronounced corrupt by the highest court since she was the main accused in various charges. It may be culturally incorrect to blame the dead, but facts are bitter. Corruption may not dilute one's charisma in a democracy.

2) Justice will be delivered, but only ultimately. We may have to be patient for more than two decades.

3) A dishonest judge can easily torpedo justice through deceptive reasoning, however flimsy it may be. Even faulty arithmetic is a useful tool for venal judges. Will the HC judge who blundered so infamously and cocked a snook at justice be ever brought to book?

4) If justice is so shifty even in such an open and shut case, how do we get relief in so many other cases where the culprits act more cleverly and cover their tracks dexterously?

TN Governor's inaction

Constitutional purism demands that the Governor call the leader of the majority party to form the government. Sasikala gave a list of 130 MLAs supporting her and sought to be invited to form the government. Panneerselvam could not claim majority support and only sought to withdraw his resignation which had already been accepted. What the governor should have done in this situation is a no-brainer. There is no question that he has violated the letter of the law. By continuing to delay his decision, the governor has only made us believe that something other than simple law is agitating his mind.

Though we are not privy to the conversations of the governor with the two leaders, it is possible to guess that OPS has informed the governor that he was forced to submit his resignation under duress and that many MLAs are kept in captivity by Sasikala. It is also possible that the governor could not discount this argument.

There is obviously a clash between letter of law and ethical consideration in this case. It is not uncommon for letter of law to get diluted by circumstantial evidence to the contrary. Further, coercion (assuming that OPS was indeed coerced  and MLAs are indeed kept in captivity) would have negated Sasikala's democratic rights.

Purpose of law is to deliver justice. If the purist adherence to legal requirements was likely to lead to an unjust solution, the governor would be bound more by ethical requirement than by legal constraint. Of course, it is for the governor to inform the court what really happened , when the matter inevitably gets dragged to the court in case Sasikala does not become the chief minister.

When law and ethics point in the same direction, the end result is justice. When there is a conflict between the two, the decision-maker may play it safe by sticking to the letter of law or may stick his neck out by seeking to prioritise ethics over law. 

NRN vs Vishal Sikka: Possessive promoter vs Pragmatic professional?

Corporate Boardroom battles are becoming more common these days in India too. Ratan Tata has succeeded in ejecting Cyrus Mistry from all Tata companies with a speed atypical of sedate Tatas. The Parsi community is no doubt aghast. But Ratan Tata is unable to let the Tata companies get on with their job without singing his glory at frequent intervals. Simply stated, he continues to be possessive about what he considers to be his legacy.

N.R.Narayana Murthy is playing Ratan Tata in Infosys. When Cyrus Mistry was anointed chief of Tata Sons, Ratan Tata was effusive in his praise for the former's sagacity. Similarly, NRN was unabashed in showering encomium on Vishal Sikka when the latter took over the reins at Infosys. The lovefest has proved to be short-lived. NRN is upset over Sikka's disregard for Infosys' penchant for 'corporate governance' just like Ratan Tata was angered by Mistry's unconcern for 'Tata culture.'

NRN has told The Economic Times that large severance payments to departing employees (particularly ex-CFO Rajiv Bansal) perhaps constitute 'hush money'. He wonders if the company is suppressing some information harmful to the company. He also doubts the Board's compliance with its fiduciary responsibility. Pretty strong words indeed.

Murthy has sought some changes in the Board. He wants the Chairman, Seshasayee to admit his and Board's mistake in allowing large severance payments, to 'show contrition' for the same and get back to the straight and narrow path of corporate governance. He has once again expressed his oft-stated corporate governance mantra: "When in doubt, disclose. Let good news take the stairs and bad news the escalator."

He has also bemoaned the disparity (2000 : 1) in remuneration to CEO and entry-level software engineer in Infosys. It is anybody's guess how long Vishal Sikka will stick to Infosys. The company has issued a statement confirming the Board's full confidence in the leadership of Seshasayee and Sikka. Employees of Infosys are overwhelmingly supportive of Murthy just as the Tata employees are in favour of Ratan Tata.

It now appears that the promoters are more against Seshasayee than Sikka. What could be the reason? Sikka bows down to NRN and touches his feet in typical north Indian style. Seshasayee does not do this.

Mohandas Pai says there must be a TV channel discussion between NRN and Seshasayee where NRN will raise questions to be answered by Seshasayee. According to Pai, this is what transparency is about. He has mistaken public trial for transparency.

Balakrishnan , another promoter, wants Seshasayee to resign forthwith. Pai regrets that neither he nor Balakrishnan was paid severance payment when they resigned as CFO and therefore where is the need to pay Rajiv Bansal ? (In other words, the promoters expect the professionals to continue to do what the promoters did. Where then is the need for professionalisation?) He has criticised Seshasayee's argument that the severance money is a protection against Bansal exploiting the information about Infosys by joining competitors.(Seshasayee should have been more diplomatic and obfuscatory.)

There is a risk that overly possessive promoters may end up as demoters of their own creation. NRN cannot simultaneously claim credit for 'walking away' from his company and still keep frustrating his successor. He cannot have the cake and eat it too.

Chaos in Tamil Nadu

Tamil Nadu Governor is under a severe test. Ch.Vidyasagar Rao who is now the Governor of both Maharashtra and Tamil Nadu is known for speedy response. But the convoluted political happenings in TN force him to adopt a cautious approach. He accepted the resignation of OPS with celerity, but got bogged down when Sasikala staked her claim to chief ministership.

Legal, political and moral issues are intertwined in the ongoing drama. The governor cannot refuse to entertain the claim of the leader having the support of a majority of MLAs namely Sasikala. However, he cannot be hustled to agree to a particular day for administration of oath. Now that the chief minister, OPS has rebelled against Sasikala, the governor is expected to take into consideration a larger political picture apart from Sasikala's claim of support of overwhelming majority of ADMK MLAs.

In such political muddy waters, legal issues start attracting special attention. Hence, the governor now cannot escape factoring the impending SC judgment while arriving at a decision. It is tempting to blame Vidyasagar Rao for the delay in acceding to Sasikala's request to be sworn in. Recent events have justified the cautious approach of the governor.

It is now Sasikala vs OPS. OPS is bound to lose in this battle since very few MLAs will be ready to take the risk of losing the remaining four years of power. Supporting Sasikala or surrendering to her unethical ways will be more rewarding to the AIADMK MLAs than yielding to conscience (?) and bolstering OPS.

Panneerselvam 'unburdened' his conscience at the Jaya memorial yester-night. Though it contained elements of histrionics, OPS has enough decency left in him for this action to look credible in the public eye. But the battle has to be fought in the Assembly where conscience and ethics appear to be irrelevant.

Chinnamma becomes periamma

OPS has again resigned, now paving the way for Sasikala. AIADMK has innovated the post of PICM, permanent interim chief minister. O.Panneerselvam fits the position to a T.

OPS may again be forced to become CM as and when Chinnamma is convicted in any of the many criminal cases pending against her. Many have questioned her fitness to become Chief Minister. She has criminal cases not only against her, but against all members of her family. If this is not qualification enough, what is?

Sasikala has promised to fulfil Jayalalithaa's dreams. "I am under compulsion to fulfil the dreams of our Amma." That is why she sacked the former secretaries who were advising Jayalalithaa.

Jaya never gave any position to Sasikala. In order to complete the task which Jaya could not do, Sasikala has taken up both General Secretaryship of the party and Chief Ministership. Jaya's soul would be mightily pleased.

If any straightforward judge convicts Sasikala, the entire state will rise in protest against the injustice. Will any judge dare to risk such disorder in society?

Sonia Gandhi made the supreme sacrifice of denying herself prime-ministership and preferred to act through the proxy Manmohan Singh. Sasikala makes the even more supreme sacrifice of coming out in the open to enrich the Mannargudi Mafia. Historians will keep wondering whose sacrifice is more praise-worthy.

There are striking similarities between Soniaji and Sasikala. Both started their working life in entertainment-related activities. Both became prominent by their association with outstanding leaders. In both cases, the leaders did not want to assign any political / public role to their associates. Both suffer from the pangs of duty to serve others !

Sonia could not become PM perhaps because of her non-Indian origin. Chinnamma is however not deterred by her possible conviction by courts.

Budget

The Budget 2017-18 presented on February 1 is essentially an interim budget. GST will not be in place before July 1st. Impact of demonetisation is not yet clear. Unclear past and uncertain future have made the budget more unrealistic than usual. Under these trying circumstances, the Finance Minister has done his best. One should pity the FM. It is like blindfolding a person, keeping him in an unknown place and asking him which direction he wants to take.

India is suffering from three critical deficits: jobs, ethical behaviour and innovation. The budget seeks to enable creation of more jobs through greater spending on infrastructure and giving tax concessions to MSMEs which are the major fountain of jobs. It is unrealistic to expect the FM declare how many jobs will be created in the process. Number of new jobs will depend on where we are in the continuum between jobless growth and job-oriented growth.

Black money partially reflects our low regard for ethical behaviour. In the absence of immediate and stringent punishment for unethical behaviour, tax-compliance is unlikely to improve even if tax rates are brought down substantially. Allowing Vijay Mallya to emigrate and disallowing charge-sheeting of Marans are indicative of our tolerance for unethical behaviour. Government may plead its helplessness since there was no look-out notice for Mallya and the special CBI judge may blame the ineptness of prosecutors, but the fact remains that decriminalisation of our society is not in our priority list.

Encouragement of innovation like R & D has not attracted FM's myopic attention. Growth can be sustained only through incentivised innovation.

Economic twin-deficits of Fiscal Deficit and Current Account Deficit are fairly under control. They may go for a toss in case oil prices head north. FRBM Act originally contemplated bringing the Revenue Deficit to zero. It is unlikely to happen any time soon. This means the government is borrowing funds to pay salaries and interest on loans. Revenue Deficit reflects only recklessness past and present.

Government is likely to present another budget while introducing GST. That will test FM's acumen much more.

One of the TV channels interviewed Jim O'Neill, the creator of acronym BRIC, around 1 p.m. (IST) on the budget day, that is around 7-30 a.m. in London where he was. He might have just then woken up. Asked for his impressions about the budget, he said "nothing spectacular about it . Nothing very bad either." I suppose that applies to any budget.

Marans' discharge: political perfidy or judicial jeopardy ?

A special court has held that there is no sufficient proof to frame charges against the Marans in the notorious Aircel-Maxis deal case.

O.P.Saini, the special judge, has categorically held : "I am satisfied that the entire case is based on a misreading of the official files, contradictory statements of the witnesses as well as speculations and surmises of Sri.C.Sivasankaran. I have no hesitation in recording that no prima facie case warranting framing of charge against any of the accused is made out. Accordingly, all accused stand discharged."

This is a slap on the face to prosecuting agency and also the government. This case was assumed to be an incontrovertible proof of nepotism and crony capitalism of the UPA government headed by Manmohan Singh. Enforcement Directorate is likely to appeal against the discharge.

Circumstantially it appeared to the general public that sequence of events was proof positive that Dayanidhi Maran, the then Telecom Minister was helping his brother's business and that quid pro quo between Marans and Maxis was self-evident.

Politicians as a class have a fraternal relationship among themselves and therefore they do not want any of their ilk to get jailed. BJP will go 'thus far and no further' in their judicial battle against their political adversaries. ED or for that matter any investigating agency is packed with accommodative officials by the party in power. Judiciary looks for unassailable evidence even to file charge sheets. The end result is that politicians who are probably crooks known for their unethical conduct escape from the proverbial long arm of the law. The public knows that absence of legally acceptable evidence of guilt is not evidence of absence of guilt.