Jayalalitha proposes, But courts dispose of!

While passing the interim order staying, a November 9 order of the State PWD asking the Muthamizh Peravai Charitable Trust to vacate its premises at R.A.Puram in Chennai and hand over the land and building to the department within a month, Justice N.Paul Vasanthakumar had posed the question to the Advocate General, “Regimes may change but government is the same. What was the necessity for the government to take back with a hand what was given by another hand? Why this sudden decision? I stay this order. If need be, you can file counter affidavit in four weeks!”

This observation of the Judge is precisely is the commentary on the ‘performance’ of the Jayalalitha regime during the last six months since, it took office on May 16; to be more accurate even before the swearing-in ceremony, right from the late evening of May 13 when the results of the Assembly elections were trickling-in heading for majority for the ADMK. With the shifting of the seat of power, the Secretariat and the Assembly from the Government Omandurar Estate back to St. George Fort. And in the first Cabinet meeting held in the evening after the swearing-in ceremony on May 16, the decision of suspending the implementation of Samacheer Kalvi Scheme, introduced by the DMK government after exhaustive studies and deliberations, was taken. So, even while assuming office and right from the day, the functioning of the regime revolved on ‘undoing whatever was done by the previous DMK rule’ and ‘negating all positive measures of the previous rule’ as per Tamil saying ‘Kjš nfhzš K‰¿Y« nfhzš’ (First perversion is total perversion).

Granting the interim relief to the Muthamizh Peravai Charitable Trust represented by its secretary Vazhuvoor Ravi, the judge posted the matter after four weeks for further hearing. The matter relates to a total of six grounds of land allotted to the Peravai in two instalments – in June and August 2010.

    The Peravai, which exists since 1976 but was registered in 1999, requested the DMK rule for land to build an auditorium, music library and other research facilities for promotion of music, dance and fine arts. On the allotted land near Andhra Mahila Sabha in Adyar, a structure at an outlay of Rs 4 crore was built.

    The auditorium is already in use, and it has been booked for cultural events and dance programmes till 2012-end.While so, the executive engineer of PWD issued a notice on November 9, directing the Peravai to vacate the premises and hand over vacant possession within 30 days.

The mala fide intention of the Jaya regime is obvious from the fact that adjacent to the site, there are five grounds of land allotted for constructing manimandapam for thespian Sivaji Ganesan, land allotted by ADMK regime to Kunnakudi Vaidyanathan who ‘invented’ a raga in Jayalalitha’s name and the land assigned for the purpose of development of Bharathanatyam – all remaining unused and vacant.

It is because of such mala fide intentions of Jayalalitha besides illegality and impropriety, that the courts had to interfere and order stay for her moves, not just one but five times, force a self-imposed stay and quash a move within six months of her rule.

On her first misadventure with Samacheer Kalvi, she made it a prestige issue of her regime by tossing the fate of 1.25 crore school going children between High Court and Supreme Court, spoiling 100 worthy days of their studies, agonizing 2.5 crore parents of the children and confusing over 15,000 teachers; and above all frittering away hundreds of crores of  rupees on printing textbooks in old syllabus in Sivakasi and Hyderabad, exhorbitant legal fees paid for engaging senior counsels, court expenses, air fare for officials, minister and lawyers etc.,

In fact democratic norms make it mandatory for her to step down for this authoritarian misadventure, for which she has not taken the people’s mandate. Neither abolition of Samacheer Kalvi nor shifting of New Assembly and Secretariat complex were parts of ADMK election manifesto or her election campaign. That was the reason for the alliance parties of the ADMK to atleast raise the feeble voice against these moves. In effect by these two most unpopular moves, Jayalalitha betrayed the people who voted for and against her, her alliance parties and in fact her own party functionaries and cadre, obviously because the ADMK rank and file remained nonplussed all through, helplessly watching the developments and incurring the wrath of neighbours and their own family members too, inasmuch as every household had one or two school-going children.

It will go on record and down in history that the ADMK, nay, Jayalalitha regime was backed by private schools which have commercialized education and looting in the name of tuition fees, and opposed by educationists and parents, the people in the court litigation and outside. It is very obvious that Jayalalitha blatantly misused power in favour of private schools and against common people. The regime turned a blind eye to the protests of parents against private schools fleecing them for school fees and only after the High Court order prescribing deadline named a judge to head the committee.

The judges of the High Court and Supreme Court made very harsh remarks against the ADMK regime.

Encouraged and emboldened by the by and large indifferent attitude of political parties, social groups and the media to her move to abandon the New Secretariat complex as it was a problem for Kalaignar and the DMK, Jayalalitha dared to touch the much acclaimed Anna Centenary Library (ACL), which proved to be disturbing a honeycomb. The Madras High Court on Nov.3 stayed her move to convert the ACL built during DMK rule, into a Super Speciality Pediatric Hospital on two PILs. The first Bench comprising of Chief Justice M.Y.Eqbal and Justice T.S.Sivagnanam took exception to the move and asked the government why it wanted to shift the library which is equipped with modern facilities and cryptically remarked if the government was so interested in the hospital it could even construct on the Marina beach. This move was also politically motivated and mala fide. All political parties, social organizations, writers, students and the public have voiced their strong protest and have started agitations. That the announcement of converting ACL as well as the New Secretariat complex into Super Speciality Hospitals was only a ruse for abandoning landmarks of Chennai created by Kalaignar, is evident from the fact that Jayalalitha has closed down the Super Speciality Hosptial in Salem, constructed, inaugurated and functioning during the DMK rule. The ADMK regime unleashed brutal police lathi charge on agitators demanding reopening of the hospital.

November 11 and 18 turned unforgettable days for the Jaya regime, inasmuch as on the first day, not one or two, but three important decisions of the government suffered adverse orders, benefitting about 12,620 government employees.

While the bench of Justice K Suguna stayed the two separate government orders to sack 12,618 Makkal Nala Paniyalargal (village welfare workers) and to remove 11 Assistant Public Relations Officers (APROs) appointed by the previous DMK government, a Division Bench quashed the detention of ‘Pottu’ Suresh under the Goondas Act.

The post of Makkal Nala Paniyalargal was first created by the DMK government in 1989. As per the scheme, a district-level committee headed by the district collector will select a male and female candidate each for every panchayat, in order to oversee implementation of welfare schemes. In 1991 and in 2001, and now, every time the ADMK came to power, the posts were disbanded, only to be re-created by the DMK rule on its return. This time a total of 12,618 workers lost their jobs after the November 8 order disbanding the posts.

On Nov.11, Justice Suguna stayed the operation of the order and said it would be applicable to workers affiliated to the Chennai-based Tamil Nadu Makkal Nala Paniyalargal Munnetra Sangam and the Dindigul District Makkal Nala Paniyalargal Sangam.

During arguments, advocate R.Vaigai said the Apex Court had held repeatedly that government employees should not be reduced to be pawns in the political chess.

TNMNPMS General Secretary M.Palani said his association had a membership of 13,000. There was every need for their services for better implementation of schemes, particularly the Mahatma Gandhi National Rural Employment Guarantee Scheme. The present staff strength in any panchayat union and village panchayat was not sufficient to cope with the maintenance of basic amenities. The disbandment of all the posts of Makkal Nala Paniyalargal through an order on November 8 was an “arbitrary exercise of power which is coupled with political bias.” The reasoning in the impugned order -- that there was enough staff to look after the work being done by the Staff for People's Welfare -- was totally false. The communications and proceedings repeatedly issued by the government would establish that the petitioners' services were essential. There was no plausible reason to disband the post immediately as there was already a sanction accorded up to May 31, 2012 for continuance of the association members. Considering the totality of the circumstances and the need for the services of the workers, the government had passed a G.O. on June 1, 2009 bringing them under a special time scale of pay of Rs.2,500-5,000 plus grade pay of Rs.500.

In her order, Justice Suguna noted that the appointments were valid up to May 31, 2012. In view of this, there would be an order of interim stay only in respect of the members of the petitioners' associations. A while later, the same judge stayed the operation of another controversial government order sacking 11 APROs, who were appointed by relaxing rules relating to educational qualification and experience. Justice Suguna pointed out that the posts held by the incumbent APROs had not been filled up, and hence allowing the 10 APROs in their present positions would not be difficult.

Despite the court order, the MNPs were not allowed to report for duty which amounted to contempt of court. On Nov.21, it was brought to the notice of the court which ordered the government to allow them report for duty and file a reply on compliance of the order the next day on Nov.22. But the Jaya regime did not comply and preferred an appeal to the Bench challenging the single judge order. However, the Bench consists of Chief Justice Iqbal and Justice Sivagnanam on Nov.23 dismissed the appeal of the government passing strictures against the ADMK regime. They said in their order that dismissing MNPs with the change of regime was illegal and condemnable. Tracing the history of dismissals and reinstatement since 1991 by the ADMK regime and DMK rule respectively, the judges said it look like playing football and the MNPs are not footballs to play around. According to the Supreme Court order once a government employee is appointed fixing a salary to remove him is illegal. “We take strong objections to it. Passing different orders with the change of rules is regrettable, painful and condemnable” judges said.

Government and State enterprises are considered ‘model employers’ for private entrepreneurs. The State and Central governments have Labour ‘Welfare’ departments for ensuring and enforcing Labour laws for safeguarding the interests of workers their rights and benefits of the private sector enterprises through tripartite conciliations and arbitrations. That being the legal and constitutional obligation of the government, it can’t afford to treat its own employees so casually and whimsically like Jayalalitha regime as in the case of MNPs and APROs.

In this context it is pertinent to note a recent judgement of the Madras High Court Bench in Madurai.

Even cooperative societies cannot wriggle out of their obligation to grant permanent status to temporary employees who had served the organisation for 480 days within 24 calendar months as stipulated under the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, the Madras High Court Bench has held.

Justice K. Chandru passed the ruling while dismissing a writ petition filed by the General Manager of Madurai District Cooperative Milk Producers' Union (MDCMPU) in 2006, challenging an order passed by the Inspector of Factories on August 30, 2004, to grant permanent status to 22 employees. The petitioner had contended that the 1981-Act would not be applicable to the cooperative society.

Rejecting the contention, the judge imposed a cost of Rs. 5,000 on MDCMPU to be payable to the employees' counsel towards legal costs.

The judge said that the Union had halted the grant of permanent status as well as attendant benefits arising out of such status to the 22 employees for over a period of five years by obtaining an interim stay of the Inspector's order at the time of admission of the writ petition.

The judge pointed out that the Supreme Court in a case decided in 2008 had held that no management could question grant of permanent status to temporary workmen as the Constitutional validity of the 1981 Act had been upheld as early as in 1990 itself.

The apex court had also said that conferment of permanent status cannot be labelled as a violation of Articles 14 (Right to equality before law and equal protection of laws) and 16 (Equality of opportunity in matters of public employment) of the Constitution. “The other contention that the workmen were not engaged throughout the year is irrelevant. For the purpose of calculating 480 days, the Act only talks of 480 days within 24 calendar months. The contract need not spread over to two full calendar years. It will be suffice if the workman completes 480 actual days within 24 calendar months even if there was discontinuance,” Justice Chandru clarified.

On the last contention of MDCMPU that the 22 employees were employed in the place of permanent workers only during exigencies, the judge said that inclusion of ‘Badli (substitute) worker' in the definition of workmen by way of an amendment to the Act in 2000 would make it clear that even those who do not work throughout the year were eligible to claim permanent status.

On November 11, while the High Court stayed the government’s move to retrieve the land allotted by Kalaignar to Muthamizh Peravai in another case, in order to avoid yet another stay and loss of face for the Jaya regime, the government itself self-imposed a stay for a mala fide move it made through the Chennai District Collector. The controversy surrounding the 114-odd grounds (about 9.3 acres) of prime land on Cathedral Road adjacent to Anna Flyover, took centre stage in October when DMK President Kalaignar charged that the District Collector in-charge surrendered its ownership right to the Agri- Horticultural Society of a person close to the ruling clique, owing to extraneous political consideration. The prime property, worth about Rs.500 crore, is located opposite to the Semmozhi Poonga, a 20-acre botanical garden. A petition was filed against the move of the ADMK regime advocate Y.Bhuvanesh Kumar.

Realising that the case will turn against the regime, the State government itself put on hold the Collector’s ruling.

A submission to this effect was made before the first bench of the Madras high court comprising Chief Justice M Y Eqbal and Justice TS Sivagnanam by advocate-general A Navaneethakrishnan when a public interest writ petition filed by Y Bhuvanesh Kumar challenging the collector’s order came up for hearing on Nov.18.

    After several rounds of litigation following a government decision in 1989 to take over the land, the HC in March 2010 asked the authorities to issue a show-cause notice and give the society reasonable opportunity to prove its claim over the property. However, though notices were issued in September and October 2010 there was no progress on the issue. On December 8, 2010, the then DMK government issued another notice to take possession of the property. After the advent of ADMK regime, on August 22, 2011, the collector ruled that the title of the land belonged to the society.

    P Wilson, the petitioner’s counsel, said grave irregularities had taken place in handing over the land to the society and that the HC order had been deliberately misinterpreted by authorities. The collector’s order was passed when Chennai district did not have a regular district collector, he said.

    The advocate-general then furnished an order passed by the principal secretary and commissioner of land administration, dated November 1, 2011, stating that the collector’s order had been stayed and that the government had decided to review it. The order said the collector had passed the ruling though there was no documentary evidence to establish that the society had the title over the land. The society, on its part, has already filed a petition challenging the principal secretary’s order.

    Recording this development, the first bench then said: “When the order dated November 1 itself has become a subject matter of a writ petition, the present PIL in our view has become infructuous. It is accordingly dismissed.”

This is a peculiar case. Usually government move through courts also for retrieving government lands from illegal possession. On the contrary here a member of the public moved the court for retrieving land from a private party, to whom the government itself conferred illegal ownership.

Court cases against moves of any government and stay orders are not uncommon. But it is rarest of the rare for a government to get its moves ab initio stayed by the courts and invalidated. The ADMK regime led by Jayalalitha has acquired the distinction, nay notoriety, of so many of its moves stayed and invalidated by courts within a few months of assuming power! A ‘feat’ indeed’!

FDI in Retail Sector: More Harm than Good

As DMK President Kalaignar has said the Party had been consistently opposing the idea of permitting Foreign Direct Investments (FDI) in Retail sector in India right from the time it was mooted and had been warning that it is dangerous leading to catastrophic consequences for the economy and people of the country. Moreover, it is also in contravention of the letter and spirit of the Common Minimum Programme of the UPA.

The retail industry in India is of late often being hailed as one of the sunrise sectors in the economy. AT Kearney, the well-known international management consultancy, recently identified India as the ‘second most attractive retail destination’ globally from among thirty emergent markets. It has made India the cause of a good deal of excitement and the cynosure of many foreign eyes. With a contribution of 14% to the national GDP and employing 8% of the total workforce (only agriculture employs more) in the country, the retail industry is definitely one of the pillars of the Indian economy.

Trade or retailing is the single largest component of the services sector in terms of contribution to GDP. Its massive share of 14% is double the figure of the next largest broad economic activity in the services sector.

The retail industry is divided into organised and unorganised sectors. Organised retailing refers to trading activities undertaken by licensed retailers, that is, those who are registered for sales tax, income tax, etc. These include the corporate-backed hypermarkets and retail chains, and also the privately owned large retail businesses. Unorganised retailing, on the other hand, refers to the traditional formats of low-cost retailing, for example, the local maligai shops, owner manned general stores, paan/beedi shops, convenience stores, hand cart and pavement vendors, etc.

Unorganized retailing is by far the prevalent form of trade in India – constituting 98% of total trade, while organised trade accounts only for the remaining 2%. Estimates vary widely about the true size of the retail business in India. AT Kearney estimated it to be Rs. 4,00,000 crore and poised to double in 2015. On the other hand, if one used the Government’s figures the retail trade in 2002-03 amounted to Rs. 3,82,000 crore. One thing all consultants are agreed upon is that the total size of the corporate-owned retail business was Rs. 15,000 crore in 1999 and poised to grow to Rs.35,000 crore by 2005 and keep growing at a rate of 40% per annum. In a recent presentation, FICCI has estimated the total retail business to be Rs. 11,00,000 crore or 44% of GDP. According to this report dated Nov. 2003, sales now account for 44% of the total GDP and food sales account for 63% of the total retail sales, increasing to Rs.100 billion from just Rs. 38.1 billion in 1996. Food retail trade is a very large segment of the total economic activity of our country and due to its vast employment potential, it deserves very special focused attention. Efficiency enhancements and increase in the food retail sales activity would have a cascading effect on employment and economic activity in the rural areas for the marginalized workers. Thus even without FDI driving it, the corporate owned sector is expanding at a furious rate. The question then that arises is that since there is obviously no dearth of indigenous capital, what is the need for FDI? It is not that retailing in India is in the need of any technology special to foreign chains.

A simple glance at the employment numbers is enough to paint a good picture of the relative sizes of these two forms of trade in India – organised trade employs roughly 5 lakh people , whereas the unorganized retail trade employs nearly 3.95 crore! According to a Government of India study the number of workers in retail trade in 1998 was almost 175 lakhs. Given the recent numbers indicated by other studies, this is only indicative of the magnitude of expansion the retail trade is experiencing, both due to economic expansion as well as the ‘jobless growth’ that we have seen in the past decade. It must be noted that even within the organised sector, the number of individually-owned retail outlets far outnumber the corporate-backed institutions. Though these numbers translate to approximately 8% of the workforce in the country (half the normal share in developed countries) there are far more retailers in India than other countries in absolute numbers, because of the demographic profile and the preponderance of youth, India’s workforce is proportionately much larger. That about 4% of India’s population is in the retail trade says a lot about how vital this business is to the socio-economic equilibrium in India.

Organised retail is still in the stages of finding its feet in India even now. Though organised trade makes up over 70-80% of total trade in developed economies, India’s figure is low even in comparison with other Asian developing economies like China, Thailand, South Korea and Philippines, all of whom have figures hovering around the 20-25% mark. These figures quite accurately reveal the relative underdevelopment of the retail industry in India. (Here development is used in the narrowest sense of the term, implying lean employment and high automation)

It is important to understand how retailing works in our economy, and what role it plays in the lives of its citizens, from a social as well as an economic perspective. India still predominantly houses the traditional formats of retailing, that is, the local maligai shop, paan/beedi shop, hardware stores, weekly sandhais, convenience stores, and bazaars, which together form the bulk. Most importantly, Indian retail is highly fragmented, with about 11 million outlets operating in the country and only 4% of them being larger than 500 square feet in size. Compare this with the figure of just 0.9 million in the US, yet catering to more than 13 times of the Indian retail market size. 

The Indian retail industry was, and continues to be, highly fragmented. According to the global consultancy firms AC Neilsen and KSA Technopak, India has the highest shop density in the world. In 2001 they estimated there were 11 outlets for every 1,000 people. Further, a report prepared by McKinsey & Company and the Confederation of Indian Industry (CII) predicted that global retail giants such as Tesco, Kingfisher, Carrefour and Ahold were waiting in the wings to enter the retail arena. This report also states that the Indian retail market holds the potential of becoming a $300 billion per year market by 2010, provided the sector is opened up significantly. It does not talk about creating additional jobs however, which should be the prime concern of the policy maker.

One of the principal reasons behind the explosion of retail and its fragmented nature in the country is the fact that retailing is probably the primary form of disguised unemployment/underemployment in the country. Given the already over-crowded agriculture sector, and the stagnating manufacturing sector, and the hard nature and relatively low wages of jobs in both, many million Indians are virtually forced into the services sector. Here, given the lack of opportunities, it is almost a natural decision for an individual to set up a small shop or store, depending on his or her means and capital. And thus, a retailer is born, seemingly out of circumstance rather than choice. This phenomenon quite aptly explains the millions of maligai shops and small stores. The explosion of retail outlets in the more busy streets of Indian villages and towns is a visible testimony of this. 

The presence of more than one retailer for every hundred persons is indicative of the lack of economic opportunities that is forcing people into this form of self-employment, even though much of it is marginal. Because of this fragmentation, the Indian retail sector typically suffers from limited access to capital, labour and real estate options. The typical traditional retailer follows the low-cost-and-size format, functioning at a small-scale level, rarely eligible for tax and following a cheap model of operations.

As on January 1st of this year, there were 413.88 lakhs job seekers registered at the Employment Exchange. They register at the exchange, to enjoy the benefits and security that a job in the organised sector provides – lifetime employment, pension, and union membership etc. But over the period 1992¬93 to 2001-02, only a total of 30,000 jobs have been added in the organised sector in the whole country.

A vast majority is aware of what these figures signify – that they are most unlikely to get such jobs. Therefore, they find jobs in the informal sector, mostly in retail. Retailing is by far the easiest business to enter, with low capital and infrastructure needs, and as such, performs a vital function in the economy as a social security net for the unemployed. India, being a free and democratic country, provides its people with this cushion of being able to make a living for oneself through self-employment, as opposed to an economy like China, where employment is regulated. Yet, even this does not annul the fact that a multitude of these so-called ‘self-employed’ retailers are simply trying to scrape together a living, in the face of limited opportunities for employment. In this light, one could brand this sector as one of “forced  employment”, where the retailer is pushed into it, purely because of the paucity of opportunities in other sectors.

The largest retailer in the world ‘Wal-Mart’ has a turnover of $ 256 bn. and is growing annually at an average of 12-13%. In 2004 its net profit was $ 9,000 mn. It had 4806 stores employing 1.4 mn persons. Of these 1355 were outside the USA. The average size of a Wal-mart is 85,000 sq.ft and the average turnover of a store was about $ 51 mn. The turnover per employee averaged $ 175,000. In 2004 Wal-Mart had a 9% return on assets and 21% return on equity.

By contrast the average Indian retailer had a turnover of Rs. 186,075. Only 4% of the 12 million retail outlets were larger than 500 sq.ft in size. The total turnover of the unorganized retail sector was Rs. 735,000 crore employing 39.5 mn persons.

Let alone the average Indian retailer in the unorganized sector, no Indian retailer in the organised sector will be able to meet the onslaught from a firm such as Wal-Mart – when it comes. With its incredibly deep pockets Wal-Mart will be able to sustain losses for many years till its immediate competition is wiped out. This is a normal predatory strategy used by large players to drive out small and dispersed competition. This entails job losses by the millions.

India has 53 towns each with a population over 1 million. If Wal-Mart were to open an average Wal-Mart store in each of these cities and they reached the average Wal-Mart performance per store – we are looking at a turnover of over Rs. 80,330 mn with only 10195 employees. Extrapolating this with the average trend in India, it would mean displacing about 4,32,000 persons. If large FDI driven retailers were to take 20% of the retail trade, as the now somewhat hard-pressed Hindustan Lever Limited anxiously anticipates, this would mean a turnover of Rs.800 billion on today’s basis. This would mean an employment of just 43,540 persons displacing nearly eight million persons employed in the unorganized retail sector. 

With possible implications of this magnitude, a great deal of prudence should go into policymaking. Rather we seem to moving towards a policy steamrolled obviously by vested interests acting in concert with the CII & FICCI. We need to take a deep hard look at FDI in the retail sector.

Given this backdrop, the recent decision about opening up the retail sector to Foreign Direct Investment (FDI) becomes a very sensitive issue, with arguments to support both sides of the debate. It is widely acknowledged that FDI can have some positive results on the economy, triggering a series of reactions that in the long run can lead to greater efficiency and improvement of living standards, apart from greater integration into the global economy. Supporters of FDI in retail trade talk of how ultimately the consumer is benefited by both price reductions and improved selection, brought about by the technology and know-how of foreign players in the market. This in turn can lead to greater output and domestic consumption. 

But the most important factor against FDI driven “modern retailing” is that it is labour displacing to the extent that it can only expand by destroying the traditional retail sector. Till such time we are in a position to create jobs on a large scale in manufacturing, it would make eminent sense that any policy that results in the elimination of jobs in the unorganised retail sector should be kept on hold.

Though most of the high decibel arguments in favour of FDI in the retail sector are not without some merit, it is not fully applicable to the retailing sector in India, or at least, not yet. This is because the primary task of government in India is still to provide livelihoods and not create so called efficiencies of scale by creating redundancies. As per present regulations, no FDI is permitted in retail trade in India. Allowing 49% or 26% FDI will have immediate and dire consequences. Entry of foreign players now will most definitely disrupt the current balance of the economy, will render millions of small retailers jobless by closing the small slit of opportunity available to them. 

Imagine if Wal-Mart, the world’s biggest retailer sets up operations in India at prime locations in the 53 large cities and towns that house more than 1  million people. The supermarket will typically sell everything, from vegetables to the latest electronic gadgets, at extremely low prices that will most likely undercut those in nearby local stores selling similar goods. Wal-Mart would be more likely to source its raw materials from abroad, and procure goods like vegetables and fruits directly from farmers at preordained quantities and specifications. This means a foreign company will buy big from India and abroad and be able to sell low – severely undercutting the small retailers. Once a monopoly situation is created this will then turn into buying low and selling high.

Such re-orientation of sourcing of materials will completely disintegrate the already established supply chain. In time, the neighbouring traditional outlets are also likely to fold and perish, given the ‘predatory’ pricing power that a foreign player is able to exert. As Nick Robbins wrote in the context of the East India Company, “By controlling both ends of the chain, the company could buy cheap and sell dear”. The producers and traders at the lowest level of operations will never find place in this sector, which would now have demand mostly only for fluent English-speaking helpers. Having been uprooted from their traditional form of business, these persons are unlikely to be suitable for other areas of work either.

It is easy to visualise from the discussion above, how the entry of just one big retailer is capable of destroying a whole local economy and send it hurtling down a spiral. One must also not forget how countries like China, Malaysia and Thailand, who opened their retail sector to FDI in the recent  past, have been forced to enact new laws to check the prolific expansion of the new foreign malls and hypermarkets15.

Given their economies of scale and huge resources, a big domestic retailer or any new foreign player will be able to provide their merchandise at cheaper rates than a smaller retailer. But stopping an Indian retailer from growing bigger is something current public policy cannot do, whereas the State does have the prerogative in whether foreign entry in the retail sector should be stalled or not.

It is true that it is in the consumer’s best interest to obtain his goods and services at the lowest possible price. But this is a privilege for the individual consumer and it cannot, in any circumstance, override the responsibility of any society to provide economic security for its population. Clearly collective well-being must take precedence over individual benefits. 

If you assume 40 mn adults in the retail sector, it would translate into around 160 million dependents using a 1:4 dependency ratio. Opening the retailing sector to FDI means dislocating millions from their occupation, and pushing a lot of families under the poverty line. Plus, one must not forget that the western concept of efficiency is maximizing output while minimizing the number of workers involved – which will only increase social tensions in a poor and yet developing country like India, where tens of millions are still seeking gainful employment. 

This dislocated and unemployed horde has to be accommodated somewhere else. But if you look at the growth rates of labour in manufacturing and industry, you wonder where this new accommodation can be found? Agriculture already employs nearly 60% of our total workforce, and is in dire need of shedding excess baggage. That leaves us with manufacturing as the only other alternative. With only 17% of our total workforce already employed in industry, which contributes altogether only 21.7% of our GDP, this sector can hardly absorb more without a major expansion.

So far Indian economy has been heavily geared towards the service sector that contributes 56% of our GDP. The service sector’s contribution to the increase in GDP over the last 5 years has been 63.9%. Having a high contribution from services is an attribute that is characteristic of developed economies. What is anomalous in the Indian case is the fact that in other fast developing economies, say China, manufacturing accounts for a significant share of GDP, whereas in India, manufacturing contributes a mere 23.1% of the GDP.

It is evident that the manufacturing sector has been the engine for economic growth in China, which has been growing at 10.1% since 1991. In India, the credit for its 5.9% growth over the corresponding period goes mostly to the service sector. Ironically it would seem that the Indian economy is getting a post-industrial profile without having been industrialised! 

Retailing is not an activity that can boost GDP by itself. It is only an intermediate value-adding process. If there aren’t any goods being manufactured, then there will not be many goods to be retailed! This underlines the importance of manufacturing in a developing economy. One could argue that the alarmingly low contribution of industry is attributable to the structural adjustments going on the sector, getting rid of the flab and getting ready to compete, but that still cannot undermine the seriousness of  the issue at hand, in that only 6.215 million out of productive cohort of 600 million is employed in organised manufacturing.

Only until the tardy growth of the manufacturing sector is addressed properly and its productivity chart starts to look prettier, could one begin thinking of dislocating some of the retailing workforce into this space. Until that day, disturbing the hornet’s nest would be one very painful experience for the economy.

No protagonist of FDI in the retail sector denies that it will render a large number of existing workers in retail shops unemployed. The contention that in the long run more employment opportunities will be created is not relevant to India in the present situation. Even if we accept that in the long run the employment situation is going to be far better, one must not forget what Keynes said: In the long run we all will be dead.

It is not beyond dispute that in the long run the total volume of employment opportunities will be much more than the employment opportunities lost in the short run by the entry of FDI and the efforts to build mega marts and modernization efforts. There are two points to be noted in this connection. First, FDI will come here to make more profits because the wage rates are much lower as compared to Western countries. Efforts will be made to eliminate all sorts of distributors by taking the goods directly from the producers. Also, mechanical and electronic devices will be used to dispense with the workers. Whatever workers remain will be made to handle more goods per worker. All these changes will lead to a big reduction in the number of workers in the retail trade. Second, most of the people engaged in the retail sector at present are not educationally very qualified. When they are rendered unemployed by forcibly having to down their shops’ shutters, they will not be absorbed anywhere else. FDI coming into the retail trade will require workers with modern skills in electronics and management. Hence it is wrong to say that human sufferings will be inconsequential.

Since the mega marts will be oriented primarily towards serving the newly emerging middle and upper classes, the composition of goods will reflect this orientation. Consequently, the pattern of production will show a bias towards them. The needs of the poor will be neglected. The poor and downtrodden will feel betrayed because the UPA in its Common Minimum Programme promised “to enhance the welfare and well-being of… workers, particularly those in the unorganized sector and assure a secure future for their families in every respect.” Once this feeling of betrayal sinks into society, it will lead to disastrous consequences for the country as well as its present ruling coalition because everyone in this country has a vote and with this people express their rejection of the rulers and their policies. One needs to investigate whether the defeat of the Narasimha Rao-led Congress was due to the Ayodhya incident and the rejection of the BJP-led NDA was solely due to the Gujarat massacre or economic reforms and their consequences also had a role in both the defeats!

If Mamata, why not Jaya?

“Mamata Banerjee: A Big Disappointment and Pointer to a Dangerous Phenomenon”, an article by T.J.S. George contends, “Mamata is not doing anything to take Bengal forward, but doing what she can to take India backward. Thanks to the coalition dharma, she controls the Indian Railways. Never has Indian Railways been so hidebound, so badly led.” In his column titled , “Bengal’s Great Game Changer is really just a Name changer”, Prabhu Chawla, the Editor of ‘The New Indian Express’ says, “Even though Mamata hasn’t defined her agenda for change. What is definitely looking better is the exterior of the Writers’ Building. Inside, the rot is worse than what it was during Marxist rule.” (From the Sunday Express, Sunday Edition of TNIE on Nov.20)

“Mamata Banerjee's government in West Bengal has completed six months, but her popularity as CM hits a low among civil society. Those who supported her rise to the Chief Minister's post are now questioning what they call a fascist rule”, said ‘Today’ magazine.

Similar critical reviews of six months rule of Mamata Banerjee in West Bengal appeared in all other English dailies in November in their editions based in Chennai catering to their readers and people of Tamil Nadu.

But strangely not even one daily published any review of the six-month rule of Jayalalitha in Tamil Nadu, completed around the same time. Given their either unabashedly supportive or overtly-indulgent attitude so far for Jayalalitha regime, obviously they do not have much or none to sing paeans for her and have much only to condemn. They are aware of the consequences if only they dare to treat Jayalalitha like Mamata Banerjee.

Long live Freedom of the Press!

No Doubt Milords, There’s No Rule of Law in TN

The Supreme Court lashed out at the ADMK regime in Tamil Nadu on Nov.29 for the government’s decision to sack about 13,000 Makkal Nala Paniyalargal (MNPs), observing that there should be ‘some rule of law in the State.’ It said the decision reflected badly on the rule of law in the State. A Bench of Justice D.K.Jain and Justice Anil Dave, hearing a special leave petition against the interim order of the Madras High Court directing re-instatement of the MNPs, asked the State Additional Advocate General Guru Krishna Kumar, “What is happening in your State?” SC said the workers remained in job for full five years after their appointment by the previous regime, but the ADMK government removed them soon after assuming office.

“How can you justify such an action when it involved appointment and removal of such large number of contract workers” the top court asked. Justice Jain told the ASG, “Every five years you (State) appoint them. Thereafter, you remove them, again appoint them. Is there not a rule of law, there must be some rule of law in the State.

These candid observations of the Apex court imply that whether it is ADMK or the DMK that rule the State, the State government remains the same and the decisions taken during the previous rule shall be binding on the succeeding regime and shall not be changed unless patently unlawful, in which case it would have been challenged and struck down by the courts then and there. But Jayalalitha whimsically reverses everything constructively done during the previous DMK rule, resulting in not only drain the public money but also causing annoyance and distress to the people, who elected her to power.

So, the Hon’ble Judges of the Supreme Court need have no doubt. Undoubtedly, there is no rule of law in Tamil Nadu, under Jayalalitha’s dispensation.

For the State, law is not just books of rules and codes, but the letter and spirit of the law is paramount guideline. There is a saying in Tamil, ‘ahid tU« Ënd, kânahir tU« K‹nd’ which means, ‘The elephant will arrive later, but the ringing sound of the bell tied around its neck will resonate in advance.’ So also even before Jayalalitha assumed office, the administration went astray. When the meticulously planned and designed New Secretariat complex was inaugurated in March 2010, even while everyone was hailing of as an architectural marvel, Jayalalitha ridiculed the buildings ‘looking like circus tents’ and her cohorts were declaring that she would assume power in Fort St. George. But this was neither made a part of their election manifesto nor a point of her campaign, lest her alliance parties and the people would not have agreed.

But even as the poll results were trickling in on May 13, 2011 and the ADMK poised to secure majority, the New Secretariat/ Assembly, functioning for more than a year, was shifted overnight to Fort St. George, vacating the Classical Tamil Library that was functioning there. Jayalalitha and her ministers were sworn-in only on May 16 and the Cabinet meeting was also held at Fort St. George. Till date, the government has not clarified as to who and with what authority ordered the shifting of the Secretariat, the seat of power.

It was Jayalalitha, who during her previous tenure announced on 23 April 2003 in the Assembly, that her government had decided to shift the Secretariat from Fort St. George, ‘as it was not safe and unfit for human habitation.’ But the alternative site she proposed was turned down by the High Court. Thereafter she chose another site in Adyar and performed Bhoomi Pooja shrouded in secret, but could not and did not proceed further due to stiff resistance by the residents of the area.

In the spirit of continuity of the government in spite of change of rule, as pointed out by the Supreme Court now, Kalaignar honoured Jayalalitha’s announcement of shifting the Secretariat from Fort St. George and constructed in the Government Estate on Anna Salai, which could not face any opposition.

Now Jayalalitha has gone against her own announcement and has returned to Fort St. George, which she said was ‘unfit for human habitation’. She and her ministers can call themselves anyway as they please, but certainly government officials and employees and people who visit are human beings.

In order to justify the colossal wastage of people’s money to the tune of over Rs.1,000 crore, Jayalalitha alleged irregularities in the construction of the New Secretariat and ‘deficiency in standards of construction’ and appointed a Commission of Inquiry. Then she announced that the New Secretariat complex would be converted in a multispeciality hospital and sent a team of doctors to study such hospitals in other parts of the country.

When it is alleged that there is ‘deficiency in standards of construction’ and it has been set a term of reference for the Inquiry Commission, people would ask ‘how a hospital be located in such a deficient building, risking the lives of patients and medical staff !? Another question is, if there are only irregularities in construction and deficiency in standards of construction,’ why not use the complex for the purpose it was built after rectifying the deficiencies and complete construction of other blocs so as to accommodate all departments.

If only there is Rule of law in the State, will all these outrageous actions of an individual springing from her personal ego and whims, be allowed to take the State and its people for a ride?

The very first decision of the Cabinet meeting of the ADMK regime was to put on hold Samacheer Kalvi scheme introduced by the previous DMK rule intended to abolish four streams of school education and replace with one uniform and equitable syllabus and pattern of school education, after months of thorough study, discussions and consultations with educationists and academics by an expert committee headed by a retired Vice-Chancellor of a university. It was not introduced in a hasty and haphazardous manner, but introduced in the first and sixth standard in the academic year 2010-11 and for the rest of the classes from the current academic year. Text books for the new syllabus were also prepared, printed and kept ready for distribution. Private matriculation schools, which were aggrieved over loss of their commercial exploitation of education, moved upto the Supreme Court to stall Samacheer Kalvi but it was upheld by the courts.

Hence the question arised as to why Jayalalitha, immediately after assuming office should resort to this action, even without any review of the system. Inasmuch as the move was beneficial only to the aggrieved private school sharks, it was believed that the move was in return for pre-election ‘consideration’. Naturally aggrieved parents of over 1.25 school-going children, and educationists protested and knocked the doors of judiciary. Throughout the State students agitated. Unmoved and adamant the ADMK regime brought an amendment Act to postpone implementation of the system. It was challenged in the Madras High Court. While delivering the verdict, Justices S. Rajeswaran and Tmt. K.P.K. Vasuki said, “The intention of Samacheer Kalvi is clear. A study team consisting of best experts studied in detail and recommended implementation of Samacheer Kalvi. The recommendations of the committee cannot be easily ignored. Besides, while already incurring huge expenditure, is it necessary to further expend more? The Advocate General should give proper counsels to the government.”

When the Tamil Nadu government went on further appeal to the Supreme Court against the judgement of the Madras High Court, Justices P.S.Chowhan and Swanthira Kumar in their order said, “Samacheer Kalvi brought for classes one and six last year should be continued to be implemented. If it is stopped in between there will be confusion. Samacheer Kalvi should also be implemented this year itself for classes 2 to 5 and 7 to 10. If there were any shortcomings in that syllabi, a committee of experts could be set up and that committee to file its report within two weeks to the Madras High Court. Considering importance of this case the High Court should hear it on day-to-day basis and deliver judgement within a week.”

According to this order ADMK government set up a committee of educationists. It was widely held that only those who were opposed Samacheer Kalvi found place in that committee. Without bothering all those things, the rulers prepared a report through that committee itself and filed that report in the High Court. The Chief Justice and another judge of the Madras High Court in their order explained in detail about the report of the committee and said, “We have no hesitation to hold that the State has exceeded in its powers in bringing the Amending Act to postpone an enactment which has already come into force. Text books required for other classes besides classes one and six had already been printed and considerable amount of work have been completed. They have also been uploaded on the website. At this stage bringing amendment to the Samacheer Kalvi Act, would affect the interests of students. Hence the amendment brought by Tamil Nadu government amending that Act is not valid. We hold them null and void. The text books for Samacheer Kalvi should be immediately distributed to the students. Hence in the interest of future of the students and the interest of the country we hope the State government would immediately take action to implement Samacheer Kalvi.”

Even after this, without respecting the High Court order and ignoring the request of the all parties in Tamil Nadu persuading the Tamil Nadu government not to go on further appeal to the Supreme Court and implement the order of the High Court, the Tamil Nadu government went to the Supreme Court.

The Supreme Court in its interim report refused to give interim stay to the Madras High Court order and told the government to distribute Samacheer Kalvi text books before August 2. Even after five days of this order, the Tamil Nadu government did not start the work of distributing text books to students.  Instead the counsel for Tamil Nadu government told the Supreme Court that there was no possibility for implementing Samacheer Kalvi during this year itself; it was very clear that the Tamil Nadu government was not at all bothered about the condition of the students of Tamil Nadu. Even after 2 months of reopening of schools the students were not aware of the text books that they were going to study during this year and the parents also were agonized. As the Tamil Nadu government, unbothered about all these and not respecting the orders of the courts and not heeding to the opinions of all party leaders, was adamantly sticking on its stand.

Ultimately, the Supreme Court on Aug. 9 directed the Tamil Nadu government to implement Samacheer Kalvi for classes 2 to 5 and 7 to 10 in ten days.

A three-Judge Bench of Justice J.M. Panchal, Justice Deepak Misra and Justice B.S. Chauhan dismissed a batch of appeals filed by the Tamil Nadu government and on behalf of association of matriculation schools in support of the State challenging the Madras High Court judgment.

The Bench upheld the High Court's decision declaring unconstitutional the amendment made to the Tamil Nadu Uniform System of School Education Act to defer implementation of the USSE and gave 25 reasons why the impugned judgment should be sustained. The judgement said:

“Students can not be put to so much strain and stress unnecessarily. The entire exercise by the Government is therefore arbitrary, discriminatory and oppressive to students, teachers and parents.

The State Government should have acted bearing in mind that “destiny of a nation rests with its youths”.  Personality of a child is developed at the time of basic education during his formative years of life. Their  career  should  not  be  left  in  dolorific  conditions  with uncertainty  to  such  a  great  extent. The younger  generation  has  to compete in global market.  Education is not a consumer service nor the educational institution can be equated with shops, therefore, “there are statutory prohibitions for establishing and administering educational institution without prior permission or approval by the authority concerned…

Thus, the State Government could by no means be justified in amending the provisions of Section 3 of the Act 2010, particularly in such uncertain terms. Undertaking  given by  the learned  Advocate General to the High Court that the Act 2010 would be implemented in  the academic year 2012-13, cannot be a good reason to hold the Act 2011 valid.

Submissions advanced on behalf of the government that it is within the exclusive domain of the legislature to fix the date of commencement of an Act, and court has no competence to interfere in such a matter, is totally misconceived for the reason that the legislature in its wisdom had fixed the dates of commencement of the Act though in a phased manner. The Act commenced into force accordingly. The courts intervened in the matter in peculiar circumstances and passed certain orders in this regard also.  The legislature could not wash off the effect of those judgments at all….

As explained hereinabove, the Amendment Act 2011, to the extent it applies to enforcement of Act 2010, nullified the judgment of the High Court dated 30.4.2010 duly approved by this Court vide order dated 10.9.2010.  Thus, we concur with the conclusion reached by the High Court in this regard.

To summarise our conclusions:

(i) The Act 2010 was enacted to enforce the uniform education system in the State of Tamil Nadu in order to impart quality education to all children, without any discrimination on the ground of their economic, social or cultural background.

(ii) The  Act  itself  provided  for  its  commencement  giving  the academic years though, in phased programme i.e. for Standards I to VI from the academic year 2010-2011; and for other Standards from academic year 2011-2012, thus, enforcement was not dependent on any further notification.

(iii) The validity of the Act was challenged by various persons/ institutions and societies, parents of the students, but mainly by private schools organisations, opposing the common education system in the entire State. The writ petitions were dismissed upholding the validity of the Act. The said judgment of the High Court  was  duly  approved  by  a  speaking  order  of  this  Court  dated  10.9.2010. Certain directions had been given in the said judgment by the High Court which could have been complied with by issuing executive directions. Moreover, directions issued by the High Court could be complied with even by changing the Schedule as provided in the judgment dated 30.4.2010 itself.

(iv) Section 18 of the Act 2010 itself enabled the Government to issue any executive direction to remove any difficulty to enforce the statutory provisions of the Act 2010. The Act 2010 itself provided for an adequate residuary power with the government to remove any difficulty in enforcement of the Act 2010, by issuing an administrative order.

(v) Justification pleaded by the State that Amendment Act 2011 was brought to avoid contempt proceedings as the directions issued by the High Court could not be complied with, is totally a misconceived idea and not worth acceptance.

(vi) The new government took over on 16.5.2011 and immediately thereafter, the Government received representations from various private schools/organizations on 17th/18th May, 2011 to scrap the uniform education system. As most of  these representations were made by the societies/organisations who had earlier challenged the validity of the Act  2010 and met their waterloo in the hierarchy of the courts, such representations were, in fact, not even maintainable and, thus could not have been entertained by the Government.

(vii) Before the first Cabinet meeting of the new Government on  22.5.2011, i.e. on 21.5.2011, tenders were invited to publish the books under the old education system. It shows that there had been a pre- determined political decision to scrap the Act 2010. The Cabinet on  22.5.2011  had  taken  a  decision  to  do  away  with  the  Act  2010  and brought the Ordinance for that purpose.

(viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly  the  Expert  Committee  had  not  done  any  exercise  of reviewing  the syllabus and textbooks till then.

(ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.5.2011, the date of  the decision of the Cabinet in this regard.

(x) The interim orders passed by the High Court were challenged before this Court and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system.

(xi) The  Secretary  of  School  Education  Department  had  filed affidavits before the High Court as well as before this Court pointing out that the Amendment Act 2011 was necessary in view of the fact that the Act 2010 was illegal and unconstitutional. However, the Secretary of School Education Department was inadvertently made a member of the Expert Committee by this Court. Though her inclusion in the Committee was totally unwarranted particularly in view of her stand taken before the High Court that the Act 2010 was unconstitutional and illegal.

(xii) The Secretary, to the Govt. of Tamil Nadu School Education Department,  who  had  been  entrusted  the  responsibility  to  plead  on behalf of the State, herself had approved the textbooks and fixed the prices for those books of Standards VIIIth,  IXth  and Xth  vide G.O. dated 9.5.2011.

(xiii) The members of the Expert Committee did not reject the text books and syllabus in toto, however, pointed out certain discrepancies therein and asked for rectification/improvements of the same.

(xiv) The High Court as well as this Court upheld the validity of the Act 2010. Thus, it was not permissible for the legislature to annul the effect of the said judgments by the Amendment Act 2011, particularly so far as the Ist and VIth Standards are concerned. The list of approved textbooks had been published and made known to all concerned. Thus, the Act 2010 stood completely implemented so far these Standards were concerned.

(xv) The Statement of Objects and Reasons of the Act 2011 clearly stipulated that legislature intended  to find out a better system of school education. Thus, the object has been to repeal the Act 2010.

(xvi) The legislature is competent to enact the revalidation Act under certain circumstances, where the statutory provisions are struck down by the  court,  fundamentally  altering  the  conditions  on  which  such  a decision is based, but the legislature cannot enact, as has been enacted herein, an invalidation Act, rendering a statute nugatory.

(xvii) The School Education Department of Tamil Nadu on  24.2.2011 called for private publishers to come out with the textbooks based on common education system, and submit for clearance by the  Department by 5.4.2011, as taken note of by the High Court in its order dated 10.6.2011. Thus, in such a fact-situation, it was  not permissible for the State to revert back to the old system at this advanced stage.

(xviii) Most  of the  other  directions  given  by  the  High  Court  on  30.4.2010, stood complied with. The DTERT had been appointed as Academic Authority as required under Section 29 of the Act 2009, vide G.O. dated 27.7.2010.

(xix) The material produced by the respondents before this Court reveal that norms had been made known and the NCF 2005 was also implemented by issuing Tamil Nadu Curriculum 2009.

(xx) The issue of repugnancy of the Act 2010 with the Act 2009 merely remains an academic issue as most of the discrepancies stood removed. Even if something remains to be done, it can be cured even now, however, such a minor issue could not be a good ground for putting  the  Act  2010  under  suspended  animation  for  an  indefinite period on uncertain terms.

(xxi) Such objectionable material, if any, could be deleted, rather than putting the operation of the  Act 2010 in abeyance for indefinite period.

(xxii) As early as in April 2011, textbooks for  Xth Standard were posted in the official website of School Education Department and many students downloaded the same and started study of the same as the students, parents and teachers had been under the impression that  for  Standards II to V and VII to X, common education system would definitely be implemented from academic year 2011-12. Such pious hope of so many stakeholders could not be betrayed. Rolling back the Act 2010 at this belated stage and withdrawal thereof even for Standard I and VI would be unjust, iniquitous and unfair to all concerned.

(xxiii) The Amendment Act 2011, in fact, has the effect of bringing back the effect of Section 14 of the Act 2010 which had been declared ultra vires by the High Court for the reason that the Board could not be given binding directions by the State Government.

(xxiv) Even if a very few schools could not exercise their choice of multiple text books, it could not be a ground of scrapping the Act 2010. Steps should have been taken to remove the discrepancy.

(xxv) Passing the Act 2011, amounts to nullify the effect of the High Court and this Court‟s judgments and such an act simply tantamounts to subversive of law.

In view of the above, the appeals are devoid of any merit. Facts and circumstances of the case do not present special features warranting any interference by this Court.

 The appeals are accordingly dismissed. The appellants are directed to enforce the High Court judgment impugned herein within a period of 10 days from today.”

This ‘certificate’ issued by the Supreme Court to the ADMK regime is enough of a proof for the actions taken by Jayalalitha being “tantamount to subversive of law” and borne out of “political malice.”

Such subversion of law for political vengeance is the spectacle of land grabbing cases foisted on DMK functionaries and former Ministers. As both the setting up of a special cell of police to deal with land grabbing complaints and special courts have been challenged in the Madras High Court, pleas admitted and cases are pending, it is a matter subjudice. However, the points raised by the petitioners in their affidavits for consideration of court are as under:

“Anti Land Grabbing Special Cells are established with one each cell at State   police headquarters, 7 commissionerates in 28 Districts are established except that of Karur, Tiruvannamalai and Nagapattinam Districts are going to settle the civil disputes relating to land, title, rent control dispute, Vendor — Vendee dispute etc thereby upsetting and superseding all Laws and monopolizing power with the Police. This tends to exploit by the disgruntled Landlord, owners, vendors etc to move the police stations instead of the court and present a complaint and get an FIR registered and under the threat of arrest and imprisonment, the matter could be solved. It will be counterproductive and have a disastrous consequences leading making all civil courts and rent control courts ineffective.

The special cells constituted under the GO Ms.423 Home (Pol.XI) Department, takes away individuals rights and liberty not in a manner established by law and hence violative of Article 21. Civil complaints can now be converted as criminal complaints and the police is vested with powers to pick and choose the complaints and act arbitrarily and try the cases as ‘land grabbing cases.’

The G.O. however does not spell out any definition to the word land grabbing nor it set out any acts as Land Grabbing offences. Thus the GO is vague and without any clarity and can be used against General public even for civil disputes. The GO does not setout any guidelines to investigate such complaints. The result is that title dispute, landlord tenant matter, tenant —subtenant dispute, Mortgage dispute,   matter relating to agreement, sale purchase concerning land, will, usufructory mortgage, adverse possession, etc are entertained.

25 special courts are constituted; i.e. 2 in Chennai city and 23 courts in various other districts. When more than 390 odd offences are available under the Indian Penal Code which endangers the society, human body, religion, public health, safety,moraity, public justice and intellectual rights, there is no reasonable classification in such land grabbing cases alone to be tried by a special court.

There is no reason as to why when there are major crime against the society like  kidnapping, extortion etc are treated as an ordinary crime and allowed to rest peacefully in police stations endlessly and also lie in court dockets years together in regular courts, the land owners being an affluent people get differential treatment against the alleged offences involving their properties in a lightning speed. Thus this impugned GO tends to give a differential treatment tends to classify the person involved relating to alleged "land grabbing" cases when they are not a class by themselves. There is no rationale behind such reasonable classification and has no nexus to the object sought to be achieved. The special treatment given to these type of cases is violative of Article 14.

The present party in power, after winning the elections which was declared on 13.05.2011 and after assuming the office, both, the Governor of Tamilnadu and the Chief Minister,  on the floor of the Assembly indicated that “Land grabbing and extortion were common problems during the previous regime. Many were wrongfully dispossessed of their immovable properties through force and intimidation. The Government has decided to take appropriate action and restore such properties to their rightful owners by enacting a New Law soon.”

"On the basis of the speech given by the Chief Minister, the Home Secretary ordered for formation of 36 Anti land Grabbing Special Cells with 410 police personnel to deal with land grabbing cases at the cost of Rs.20,02,08,842/—. established in 7 major cities and 29 other Districts.

The Home Secretary has thoroughly misunderstood the object behind Section 11(1) and Section 16(l) of Cr.P.C. and has constituted the Special Courts which is violative of Article 14 of Constitution of India. In this regard, useful reference to Section 11 and 16(l) of Cr.P.C. could be made.

Art 14 is designed to protect all persons placed in similar circumstances against legislative discrimination. However by way of executive instructions the discrimination is sought to be done and thus infringe on the equality principle. "Land grabbing cases" cannot  be a defined class and no differential treatment could be given.

Framers of Criminal Procedure Code were also alive to the desirability of having a speedy trial in certain classes of cases and with this end in view they made four different sets of provisions for the trial of four classes of cases, those being provisions relating to summary trial, trial of summons cases, trial of warrant cases and trial of cases triable by a court of session. The classification of the offence for the purpose of applying these different sets of provisions was according to the gravity of the offences though in classifying the offence fit for summary trial the experience and power of trying Magistrate was also taken into consideration. The net result of these provisions is that offences which are summarily triable can be more speedily tried than summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases can be more speedily tried than sessions cases. The framers of the code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was undoubtedly as understandable and reasonable.

The GO also creates a division and creates two sets of persons among a particular group or category of offences other than classified by Cr. P.C. itself; offences triable by Special court which may try in a jet speed and ordinary regular courts the one laid down in the code; this may lead to anomalous results; •offence in same category may be tried according to the procedure laid down in the Code in regular courts while another offence of same category is tried in special court; offences leading to Land grabbing cases may be tried in Special court even though belonging to a particular group or category of offences whereas other offences belonging to the same group or category may be tried under the code in the regular criminal courts. This prejudices the defence of the accused and violative of Article 21. Art 14 assures equality of right and in the administration of justice and assures everyone the same rules of evidence and modes of procedure must exist for all in similar circumstances.

There is no special Act relating to an alleged offence called ‘land grabbing’. When there is no special enactment trying- for any defined offence, constitution of a Special Court by picking and choosing the cases and referring to Special Court terming them as land grabbing cases by State Government is highly arbitrary whimsical and capricious.

Any action of the Government should stand the judicial scrutiny within the touchstone of Constitutional provisions and further if such action is found to be irrational, illegal, unreasonable or violative of constitutional provisions such action is liable to be struck down. Therefore, in as much as the impugned G.O. discriminate the similar group of offences compared to other offence of same group giving much importance and draining the entire tax payers money and government exchequer by constituting Anti Land grabbing cells and 25 Special courts, for trying offenders under a particular regime i.e., 2006-201 is highly discriminatory unconstitutional   vindictive exercise of power. Thus G.O. tends to have separate ‘class of cases’ among the ‘class of cases’ period wise.

The whole exercise undertaken by the Government for establishment of 25 Special Courts for conducting trial of ‘land grabbing cases’ is whimsical, irrational and appears to be vindictive exercise of power. Neither under the Indian Penal Code nor under any of the Criminal Acts there is an offence called ‘land grabbing’ offence. Any offence which is not defined under any Act cannot be tried by any Court.

The move tends to encroach and usurp the powers conferred on the Civil Courts and Rent Control Courts and vesting the-power on the Police Authorities to try any type of Civil related cases relating to land, such move is also violative of Article 50 of the Constitution of India.

By an executive order, the Government cannot legislate a new offence when complete, enactment called Indian Penal Code is legislated by the Parliament. Thus, by way of executive instructions, a new offence called “land grabbing" cannot be created and tried by any Police Authority or by the Courts. It is submitted that the executive power of the State extend to the matters with respect to which the State has got power to make laws. When there is already a Central Act which has occupied the field, the Government by way of executive power cannot make any new laws.

Arbitrariness and abuse of power is the antithesis of the Rule of Law and therefore ultra vires.

The reasons for formation of Special Courts is not set out in the GOs. However, there is a reference to speech of the Governor and Chief Minister. In the G.O. and in the said speech there is a reference to a period of cases to be tried namely ‘previous regime’; Further, in the Police Policy note released by the Government of Tamil Nadu, on Demand No.22, for the year 2011-12, there is a reference for constitution of Anti—land grabbing Special Cells in Tamilnadu. Para 12 of the aforesaid Policy Note reads as follows:-

"During 2006-2011, there were a large number of cases of land grabbing and forcible sales in the State. Though complaints were made to the Police in the last 5 years no action was taken by the police. As the number of complaints increased manifold since the assumption of the Government, I ordered the formation of special cells to investigate such cases.”

Therefore, the police policy note coupled with the Governor’s address and Chief Minister’s speech and G.O. incorporating the period of investigating the cases indicates that the period of investigation of, offences is from 2006-2011 and therefore the G.O. suffers from discrimination and hence liable to be set aside on the sole ground. There is a discrimination between cases prior to 2006 and after 2011 which will not be treated as Land grabbing cases and therefore hit under Art 14 of constitution of India. The impugned order has to stand and fall on its own amount of interpretation or concession or explanation offered in court will not improve the GO or exempt from the guns of Constitution of India.

Since the reference of the ‘previous regime’ is explicit   the G.O. is an arbitrary exercise of power to settle the political scores namely the political opponent. Therefore the G.O. is a vindictive exercise of power. Further colourable exercise of power is explicit on the GO if the viel of the GO is lifted and seen. The theory of lifting the veil applies even to an Executive order and if such decision of executive is mala fide and vindictive, the same has to be struck down. This is obvious due to the period of trying the offences committed from ‘2006 to 2011’ which is qualified as ‘previous regime" in the GO and policy note and speech of Chief Minister and the Governor.

The scope of criminal court to deal with right and title of a person over an immovable property is well settled. Therefore the object to restore properties to the rightful owners’ is unavailable to criminal courts when such power of deciding title and ownership of a property and put the rightful persons in possession in absence of specific powers to criminal courts the Judicial Magistrate or the sessions court. When such power is conspicuously absent there is no reason or rhyme in establishment of land—grabbing courts to restore properties to the rightful owners.

It is trite in law that findings of criminal court or judgment is not binding on the civil courts and therefore the rightful land owners has to necessarily pass again through the route of civil. courts for obtaining lawful possession and therefore the GO never achieves any alleged object to “redress the affected quickly.”

As long as law permits and recognizes the title through "adverse possession" and creates right in favour of a rank trespasser for his continuous possession and hostile against the owner for a period of years, the executive may classify the cases as also “land grabbing" and it can run counter to a lawfully recognized title by Law of Limitation and under Transfer of Property Act.”

The rulers of Tamil Nadu derive peculiar pleasure in arresting former Ministers and DMK functionaries on the basis of complaints manufactured, only then the police file FIR, and get them remanded to custody. They file cases under not one or two sections of the IPC but under as many as possible, so that the arrested do not get bail. If they manage to get bail through High Court, on the very same day another case is foisted to scuttle their release and retain their detention in prisons. On some of them the draconian Goondas Act is invoked. Known as Goondas Act, The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Slum-grabbers and Video Pirates Act (Tamil Nadu Act 14 of 1982) Section 2 (4) states “Goonda means a person, who either by himself or as a member of or leader of a gang habitually commits, or attempts to commit or abets the commission of offence, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.” The ADMK regime has no qualms in invoking such a notorious Act against respectable public functionaries and even against a sitting legislator. The High Court had quashed Goondas Act detentions of nearly 10 DMK workers. The frenzy with cases are filed to get DMK functionaries arrested can be seen in the case of Tiruvarur District DMK Secretary Poondi Kalaivanan. When he was accompanying DMK Treasurer Thalapathi M.K.Stalin in a car from Tiruvarur to Tiruthuraipoondi on July 29, police took him into custody on a charge of preventing students from attending schools, remanded and lodged him in Palayamkottai prison. Subsequently another case was foisted on a complaint by an ADMK man that his shop in Tiruthuraipoondi bus stand was attacked and ransacked by Kalaivanan at a time when actually he was under police custody in Tiruvarur. When he was about to get bail they invoked Goondas Act and retained him in prison. When the HC quashed Goondas Act detention he was again arrested in yet another case and still he is languishing in prison. Where is rule of law in all these atrocities?

The list of Jaya regime’s adventurous foray into the terrain of law and judiciary goes further more like the move to convert Anna Centenary Library into a paediatric Super Speciality hospital, handing over possession of prime land worth over Rs.200 cr. in Chennai taken over by the previous rule from unauthorized occupation to the same person, take back the land allotted by the DMK rule to a cultural organization in Chennai city.

In these six months since Jayalalitha assumed power, Tamil Nadu has become a wanderland drifting from rule of law and order and struggling only to be brought to order now and then at the intervention of the judiciary. In short, courts from the lowest to the apex level, are over-loaded with work. Usually, the Central government, for reasons political or otherwise, asks through Governors of States whether rule of law prevailed in their respective State. This may be the first time in the history of independent India, that the Supreme Court inquired a State whether there is rule of law there. Jayalalitha has brought such a disgrace to Tamil Nadu – like a garland of flowers entangled in the hands of a monkey!