A 'very weak case' but on Dec 19, Gandhis can be arrested

Business Standard spoke to senior criminal lawyers Rebecca M John and K T S Tulsi to find out the legal intricacies of the National Herald case

At what stage is the National Herald case?

At present, it is a complaint case and has not yet reached the trial stage. In 2013, Bharatiya Janata Party (BJP) MP Subramanian Swamy filed a case against Sonia Gandhi and Rahul Gandhi for alleged illegalities in Young Indian Pvt Ltd's acquisition of Associated Journals (the publisher of The National Herald which shut down in 2008). While senior criminal lawyer Rebecca M John says the case is at a "preliminary" stage, former additional solicitor general K T S Tulsi describes it as "initial stage" of a case. Sonia Gandhi and Rahul Gandhi have been summoned by a Delhi court on December 19 as the Delhi High Court refused to agree to their plea for personal exemption.

What are the allegations against Sonia Gandhi and Rahul?

The complainant by Swamy alleges cheating (Section 420 of the IPC, non-bailable offence), criminal breach of trust (Section 406 of the IPC, non-bailable offence) and misappropriation of funds. Swamy claims the real estate owned by Associated Journals Limited (AJL) is valued at over Rs 2,000 crore.

Young Indian acquired AJL and its land for Rs 50 lakh. He also claims that a political party cannot engage in commercial financial transactions, including giving or receiving loans. Associated Journals has 1,057 shareholders. Swamy alleges that they were not consulted, or their approval sought, before the company was acquired by Young Indian.

K T S Tulsi calls it a "non-issue" and questions Swamy's claims: "Who is the victim of cheating (if there is any) and, more importantly, how were funds misappropriated? The funds continue to remain with the Young Indian. It is a complete misconception being spread by the BJP. Young Indian is a Section 25 company - it is a trust." Rebecca M John describes it as a "very weak case" which has been "hyped" due to the political angle. People have lost sight of the legal soundness of the case, she adds.

Can Sonia and Rahul seek exemption from personal appearance on December 19?

Yes, they can. In Tulsi's opinion, "The case does not disclose the ingredients of any criminal offence." According to John, the routine procedure would be to move a formal application for bail. However, since this case has political ramifications, optics matter.

Can the Gandhis be arrested?

Technically, yes. The charges are cognizable and non-bailable in nature. In majority of complaint cases, bail is granted by the magistrate (when the accused move for bail), says John. But this being a high-profile case, anything is possible. She recalls the legal maxim "Big cases make for bad law" and elaborates that if bail is denied, it would set a bad precedent in law.