A news item in ‘The Hindu’ on May 7 last read as “Wind power
to Chennai’s rescue – Temporary suspension of load-shedding during ‘dog days’
has city smiling.” A senior TANGEDCO official has said, “The wind power generation
capacity in the State is nearly 7,000 MW. On an average we get nearly 2,500 MW and sometimes it even touches 3,000
MW. The main wind season is between May and October, so we hope the generation
will be good.” But what the official as well as the daily, willfully or
otherwise, failed to report is the fact that these wind power mills were set up
during the previous DMK rule and in the very first year of the rule, the DMK
government set up additional 6,000 MW capacity wind power generation mills and
generated 3,400 MW, thus to augment increased power demand during summer and to
meet shortfall in power generation through hydel power projects during the hot
season. That was the perspective with which the DMK government led by Kalaignar
worked, because of which Chennaiites and people of other parts of the State
heave a sigh of relief now!
When
Kalaignar-led DMK government completed one year on 13 May 2007, besides
accomplishing this wind power generation, also made several achievements like:
Rs.2 per one kg. rice and pulses and cooking oil at subsidized prices; Rs.7,000
cr. co-operative farm loan waiver; three eggs per week along with nutritious
meals; free colour television sets to all families; 77,117 acres of land given
free of cost to 71,755 landless poor farmers; Marriage assistance fund for poor
girls increased to Rs.15,000; Rs.6,000 financial assistance to pregnant women;
Free gas stoves with LPG connection to eight lakh poor families at an expense
of Rs.160 crore; doubling of the financial assistance for aged persons widows,
handicapped and indigent artists; 25,000 new women’s SHGs to benefit five lakh
women and 9,387 Youth SHGs to benefit 1,40,000 youths, ‘Varumun Kappom’
(Preventive Health) scheme revived benefiting 17,33,461 persons in one year;
‘Vaazhnthu Kattuvom’ scheme at an estimate of Rs.717 crore; 3,18,085 unemployed
youth given monthly dole to the extent of Rs.35 crore in one year; social
security scheme for Farmers and Agricultural workers by an Act. 15 welfare
boards for different unorganized workers and 1,59,528 workers paid assistance
of Rs.50,24,58,249 in one year; 16,239 poor and downtrodden living over
poromboke lands for over 10 years given free land pattas; 13,000 flats for fishermen
at a cost of Rs.295 crore, and 17,000 houses at a cost of Rs.250 crore in slum
areas; Free electricity for handloom and powerloom weavers; All village Anna
Marumalarchi Scheme at a cost of Rs.508 crore; waiver of government debt of
Rs.793 crore of corporations and municipalities; Tamil compulsory subject from class
1-10; new medical colleges in Villupuram, Tiruvarur and Dharmapuri districts;
Anna Technological Universities at Tiruchi, Coimbatore and Tirunelveli;
Revocations of legislation banning recruitments; 24,642 school teachers and
1,857 lecturers for government colleges and polytechnics recruited, 13,000
Makkal Nala Paniyalargal re-appointed; 1,49,609 were newly appointed in government
departments in one year; court buildings at a cost of Rs.300 crore; appointment
of Third Police Commission; Ultra Modern State library in international standards
at a cost of Rs.100 crore; new industrial parks in Chennai, Coimbatore,
Madurai, Salem, Tiruchi and Tirunelveli, Eight MoUs signed in 12 months for
industrial unit with an investment of Rs.6,985 crore; Ramanathapuram combined Drinking
Water project at a cost of Rs.616 crore;
110 combined Drinking Water projects at a cost of Rs.989 crore; Revocation of
Anti-conversion legislation; separate welfare fund for journalists; Liberal tax
concession for film world and entrance fee of Theatres drastically reduced; Rehabilitation
scheme for scavengers at a cost of Rs.50 crore; Separate Directorate for
Welfare of minorities…. The list goes long!
For once the
present Chief Minister Jayalalitha was correct and truthful in what she spoke.
At the first Press meet immediately after assuming office on May 16,2011,
Jayalalitha was asked whether the ADMK’s victory in the elections was on
negative vote, she vehemently denied the perception and emphasized that it was
a positive vote for the programme of her party. Indeed, it was a positively
negative vote for the ADMK and Jayalalitha, because after all, Jayalalitha’s
one point programme was always negating whatever positively done by the DMK and
Kalaignar for the state and its people. For instance, although Sethusamudram
Shipping Canal Project was also the demand of the ADMK right from its
inception, but as it was accomplished by the DMK through UPA government at the
Centre, she raised the bogey of Ramar Bridge and stalled it. It is also just
because Kalaignar obtained classical language status for Tamil, she abhors the
very word classical language!
Even before
the swearing-in ceremony of Jayalalitha and her Ministry on May 16 last year,
the seat of power of Secretariat/ and Assembly was shifted from the New
Secretariat complex on Anna Salai (constructed by the DMK government) back to
Fort St George on the night of May 13, when Assembly results were coming in.
Who ordered the shifting is a question begging answer till date. The first ADMK
cabinet meeting on May 16 decided to put on hold Samacheer Kalvi introduced by
the DMK government after thorough study and upheld by the High Court also.
These two
being the first acts of the ADMK regime regarding the positive measure of the
DMK government proved to be the proverbial ‘ முதல் கோணல் முற்றிலும் கோணல் (First distortion is total
distortion). While the DMK government reinstated 13,000 MNPs, Jayalalitha again
terminated their services and sacked them. While the DMK government set up
Asia’s biggest library with all modern facility, Anna Centenary Library,
Jayalalitha ordered its closure. The cases against shifting of the New
Secretariat and Anna Library are still pending in courts.
Jayalalitha
also scrapped the Housing project for constructing concrete houses hut
dwellers, Medical Insurance scheme for life saving treatments, II phase extension
of the Metro Rail project in Chennai in preference for an illusory Mono Rail,
All-Village Anna Marumalarchi Scheme, Varumum Kappom Scheme, Free Colour
Television scheme under which the balance of about 10 lakh sets were ready for
distribution, Free gas stove scheme, social security scheme by legislation, 30
welfare boards for unorganized workers, Anna Universities of Technology in
Madurai, Tiruchi and Tirunelveli and so on.
The
ungrateful film world, by and large, campaigned against the DMK during the
Assembly elections. But Jayalalitha scrapped the waiver of Entertainment Tax
for films with title in Tamils and other liberal concessions and hiked the
Entry fee for theatres, given by the DMK government both hitting the industry
badly. Recently she refused to intervene and settle the stand-off between the
producers and workers represented by FEFSI on account of which film shootings
came to a standstill for over four months resulting in the loss of hundreds of
crores. Now both the Producers Association and Film Workers Federation are
split. This is what the Tamil film industry reaped in return for their campaign
in favour of the ADMK. Jayalalitha’s moves to return prime government land
adjacent to Anna Flyover in Chennai, taken over from a private party by the DMK
government set up classical language park, back to the private party was
overruled by the High and Supreme Courts. So also the cancellation of the land
allotment to Muthamizh Peravai by the DMK government was stalled by the Madras
High Court.
By being
repeatedly pulled up by the courts, Jayalalitha regime brought disrepute to the
traditional glory of Tamil Nadu, as a scrupulous and law-abiding state.
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 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. In asmuch 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 ADMK government not to go on further
appeal to the Supreme Court and implement the order of the High Court, the ADMK
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 ADMK government told
the Supreme Court that there was no possibility for implementing Samacheer
Kalvi during this year itself; it was very clear that the ADMK 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 ADMK 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.”
Further, in
a single day on Jan 23, 2011 Jaya regime suffered two setbacks, one in Supreme
Court and the other in Madras High Court.
The Supreme
Court ordered stay for the Government Order issued on Augst last, bringing
Tamil Nadu Public Service Commission affairs under the purview of DVAC of
police department, based on which raids were conducted in the office and
recidences of its former chairman and members since October. Challenging the
order, a PIL was filed by Dr. A.Lakshmanan and Dr. Panneerselvam contending
that the TNPSC was an autonomous body. When it came for hearing before the
bench of Justices Dhanvir Bandari and Deepak Misra, the bench ordered stay on
the GO and for DVAC investigation.
The ADMK
government lost yet another legal battle in the Madras High Court when its
order abolishing the 12,618 MNPs posts was quashed by a single judge. Justice K
Suguna, ordering the immediate reinstatement of all the workers, said the
government order dated November 8, 2011 had been issued due to “political and
extraneous considerations.” “Unfortunately, the government has not brought
before this court any record to substantiate the reason mentioned in the order
and no argument was also advanced by the advocate-general with regard to this,”
she said.
Noting that it was a serious humanitarian
problem and that 12,618 employees could not be sent home abruptly overnight,
Justice Suguna said: “Viewing from any angle, a perusal of the details reveals
that the stand of the counsel for the petitioners that the order had been
passed for political reasons has to be accepted.” The judge referred to the
fact that the posts were first created by the DMK government in 1989, and were
abolished by the subsequent ADMK government in 1991. The posts were created
again in 1997when the DMK returned to power, only to be scrapped by the ADMK
government in 2001. Again the DMK restored the posts and re-appointed the
workers in 2006, and the present ADMK government disbanded them in 2011. Noting
that these details clearly revealed that the reasons for the disbandment of the
posts were political, Justice Suguna said: “A political party assuming power is
entitled to engraft the political philosophy behind the party. But, in the
matter of execution of a decision taken by the previous government which does
not involve any political philosophy, the successive government is duty-bound
to continue the same rather than put an end to that.” When it is brought to the
notice of the court that for extraneous considerations and political reasons,
orders are repeatedly passed so as to affect more than 12,000employees,the
court certainly has to look into the matter and see whether the abolition of
posts is justified, Justice Suguna observed. Once a budget sanction is made for
a particular post, then it will get its sanctity on a par with other regular
posts, she said, reiterating her conclusion that the government had not been
able to justify the abolition of posts with right reasons.
The Madras
High Court stay of the conversion of the Rs 550 crore secretariat-assembly
complex into a hospital on Jan.18 is the fourth major setback to the attempts
by Jayalalitha to overturn the pet projects implemented by the DMK government.
Restraining
the Jayalalitha regime from making any further alteration to the
designer-building till the main petition against the move has been disposed of,
a division bench of the court asked the government if it had obtained
environmental clearance for making it a hospital. The court said that the
environmental clearance obtained for the construction of the building would not
include clearance for modification. “Keep your hands off the building”, the
bench said. The hearing will continue next month.
The court
orders, in fact act as speed-breakers for overzealous policy changes based on
political expediency. In its excessive eagerness to overturn the legacy of the
DMK rule, the present government has embarked on changes that could have been
avoided. Even if the previous schemes were found inadequate, improving them,
than scrapping them, could have made tremendous practical and governance sense
in a state that requires fast-track action to sustain a minimum socio-economic
progress.
The
Samacheer Kalvi system is a case in point. What Kalaignar attempted, with reasonable
success, was to integrate various educational systems covering 12 million
students, 45,000 state board schools, 11,000 matriculation schools, 25 oriental
schools and 50 Anglo-Indian schools, and different syllabi, text books and
exams into a uniform system of school education.
If certain
portions of the textbooks were objectionable and Jayalalitha had her reasons to
be miffed, she could have rectified the mistake and retained the noble idea of
unifying the otherwise confusing systems of education. Instead, she tried to
drop it altogether, throwing the future of thousands of children into
uncertainty for several months. The government was stubborn until the Supreme
Court asked them to stop and go back.
Dismissing
the government’s contention, the Supreme Court even said that it was a
pre-determined political decision.
Finally, the government blacked out the objectionable content and sent
the books to students.
While the
move to convert the secretariat into a hospital did not raise any public
outrage, except perhaps derision and indifference, the decision on the Rs 170
crore Anna Centenary Library created a huge and spontaneous outcry among
various quarters. The nine-floor library, the largest in South Asia, can
accommodate 1.2 million books and has the most advanced systems in library
management.
Everything
about this library is modern and large-scale. But Jayalalitha was not amused
and found the building suitable only for a multispeciality children’s hospital,
which led to a petition in the High Court which stayed her move. There has been
an online campaign against this curious move.
The sacking
of 13,000 welfare workers, which has been stalled by the high court, was a sad
affair. Whether they were appointed by the DMK or not, the workers had a
reasonable monthly income that sustained thousands of families and dovetailed
with other public works programmes and social protection schemes such as the
NREGA. In fact, in the alternating cycle of DMK and ADMK, they got hurt every
time the government changed. When the high court reversed the order of the
state government of sacking them, the latter went to the Supreme Court, which
referred the case back to the High Court, which passed its order later.
As is the
CM, So is the Regime, it appears the First Bench of the Madras High Court
comprising Chief Justice M.Y.Iqbal and Justice T.S.Sivagnanam passed an interim
order on Nov.4 last staying until further orders the State government’s
decision to shift the Anna Centenary Library in Kotturpuram in Chennai and further
hearing was posted on Dec.5. When the matter came up on Dec.5, no counter
affidavit was filed by the government side. Advocate General
A.Navaneethakrishnan produced a letter of the Additional Chief Secretary
requesting a short adjournment for filing a detailed counter. The court allowed
the prayer. As the AG sought adjournment after Pongal holidays, the Bench
ordered that the case be listed on Jan.19, 2012.
Those who
are accustomed to or following court cases relating to the government would be
surprised at the development of the State administration unable to file its
counter even after a month’s time in a case challenging an important
announcement made by the Chief Minister, which in the normal course would have
been done after much deliberations, consultations and reviews among top
officials. And, the government pleading for yet another adjournment for more
than a month is indeed flabbergasting. Unless the government’s position is very
weak or the decision was taken in haphazard manner without considering
implications and hence indefensible.
In the case
of 13,636 MNPs who were removed from service by the ADMK regime by a GO on
Nov.8, Justice K.Suguna passed an order on Nov.11 staying the GO in respect of
two associations of the employees, Tamil Nadu Makkal Nala Paniyalargal Munnetra
Sangam and Dindigul Mavatta Makkal Nala Paniyalargal Nala Sangam, whose names
were provided to the court register on Nov.12 and permit them to join duty.
This was following the AG advancing a flimsy ground challenging the representative
capacity of the workers. Then on Nov.21, Justice K.Suguna directed the State
government to reinstate all the sacked workers. The government through its
counsel made a mention before the First Bench that the State wanted to file an
appeal against the Single judge order and was asked to file a petition. On
Nov.23, the First Bench comprising Chief Justice M.Y.Iqbal and Justice
T.S.Sivagnanam dismissed the appeal and reiterated the stand of the single
judge order over reinstating the workers. The judges said that the government
should not treat the workers in such a manner whenever it comes to power.
Maintaining
that the Tamil Nadu government before removing welfare workers from service
should have given them an opportunity to be heard, the Madras High Court said
the records “reveal appointment and ouster of these employees were done at the
whims of the governments”.
Holding that
the single judge had rightly passed the interim order, the bench said it
appeared from the record that employees of Tamil Nadu Makkal Nala Paniyalargal
Munnettra Sangam and Dindigul Mavatta Makkal Nala Paniyalargal Nala Sangam were
initially appointed in 1990 on a consolidated monthly pay of Rs 200 and were
removed in 1991 due to change of the government. The judges pointed out that
with the change of government every five years the workers were reappointed and
removed. Counsel for the ‘sangams’ produced a letter dated November 21 issued
by the Rural Development and Panchayati Raj Commissioner to all district
collectors to allow those MNPs whose names were furnished to the High Court to
attend office in keeping with the court’s direction.
Yet another
blow for the ruling party and justice to the public prevailed, irrespective of
their party affiliation. Because livelihood is an essential component for
survival, even as the sacking orders reached, the workers were distressed and
some attempted to end their lives. But then they rejoiced with the court
reiterating to reinstate.
Again on
Nov.24 when the issue compliance of the interim order of Nov.21 came up before
the Single judge, the State Advocate General informed the court that the
government had filed a Special Leave Petition in the Supreme Court against the
dismissal of its plea challenging the stay. However, counsel for MNPs, R.Vaigai
said the SLP was against the interim order and hence the final arguments on the
petitions could be continued. The AG said, “We are ready to face anything”
after which Vaigai commenced her arguments on the petitions..
The Supreme
Court on Nov.29 pulled up the TN government observing that there should be
‘some rule of law in the State’. The Bench of Justice D.K.Jain and Justice Anil
Dave, hearing the SLP against the interim order of the Madras HC directing
reinstatement of MNPs, asked the State Additional Advocate General (AAG) Guru
Krishna Kumar, “What is happening in your State?” Justice Jain told AAG, “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.”
Senior counsel T.R. Andhyarujina, appearing for the associations, told the
court that this was happening every time there was change of government. The
AAG submitted, “Since the main writ petition was being heard today (Nov.29), we
are not pressing this SLP at present. Let it be listed in the normal course. We
will dispel the wrong impression created.” The Bench then posted the SLP for
hearing on December 12.
But contrary
to what the AAG told the Supreme Court the main writ petition which came for
hearing before Justice K.Suguna in the Madras High Court on Nov.29, the Counsel
for the government sought adjournment as the Advocate General was otherwise
engaged and could not make his submission in the court. Thereafter, every time
the Judge posted hearing on some other date, the government counsel came with
the same excuse pleading for adjournment. Ultimately on Dec.15, the infuriated
Judge asked the government counsel why they were dragging the case of poor
contract workers like this and strictly directed that the Advocate General
should be present without fail on the next day (Dec.16), to complete hearing in
the case. The counsel for workers’ associations R.Vaigai said the government
was protracting the case because their case was weak. The next day (Dec.16)
Advocate General Navaneetha Krishnan and senior counsel N.R.Chandran appeared
and made final arguments. Counsels for workers also completed final arguments.
The judge then adjourned orders in the case without specifying date.
Similarly in
a case of termination of service of 17 Office Assistants employed in the State
Assembly department and Secretariat after the ADMK assumed power, their
petition was admitted and notice issued on the government. The Finance
department had put a note that only the Advocate General should appear in the
case and the hapless sacked employees are being tossed around for months with
the government counsel repeatedly seeking adjournments for the appearance of
the AG.
Jayalalitha
never had the courage and determination to face the cases filed against her as
much back as more than 16 years and came out clean. In judicial parlance her
name has come to be associated with notoriety for protracting cases by going on
appeals after appeals on flimsy grounds to higher courts, seeking adjournments
after adjournments (more than 130 in Bangalore Special court alone in the
Disproportionate Assets case ) winning for her the title ‘ Queen of
adjournments’ (Vaaidha Rani), misusing State machinery to manipulate charges
against her (like ordering the DVAC to investigate in the Assets case every
time she returns to power) – all with the fond hope of diluting the severity of
the charges against her and escaping conviction. The High Court and Supreme
Court had repeatedly pulled her up for her delaying tactics and misuse of
power. But she remains unmoved and unrepentant.
In Judicial
parlance, Jayalalitha’s name is synonymous to and identified with protracting
cases against her by hook or by crook. Now she being at the helm, the State
government is gaining notoriety for seeking repeated adjournments and appeals
after appeals in cases against it. As is the CM, so is the Regime!
So many
punches had landed on the ADMK government’s face that it now has no face at
all. The string of reverses that the Jaya regime has been suffering in courts
in recent times has to be seen to be believed. While the list looks endless,
the quashing of more than a dozen Goondas Act detention orders passed against
DMK functionaries too fell through rather tamely, despite the hype that
preceded their arrests. “It is true advocates have a field day whenever the
ADMK captures power. But in my long experience I have not seen so many reverses
in such a short span”, said a senior advocate, who did not want to be quoted.
During her
earlier tenure too between 2001 and 2006, Jayalalitha regime triggered a
virtual avalanche of court cases when it took high voltage decisions such as
dismissal of 1.5 lakh government employees, ban on animal sacrifice in temples,
introducing Anti-conversion law, POTA detentions, attacks on journalists etc.,
In these 12
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!
-----
Jaya’s last ditch effort to save her
skin in Assets case by misusing power
Soon after
assuming power for the third time in Tamil Nadu, one of the very first action
taken by Jayalalitha, was to make a last ditch effort to save her skin –
imminent conviction – in the Disproportionate Assets case tried in the Special
Court in Bangalore. On her directive, the Chief Secretary conducted an
extraordinary review meeting relating to cases in the Special Investigation
Cell, DVAC and decided to undertake further investigation in the case against
Jayalalitha, with the unstated objective of foiling the case.
Accordingly,
the DVAC, Chennai, wrote directly to the judge of the Special Court trying the
disproportionate assets case against Jayalalitha stating that it is continuing
with the investigation.
The letter,
addressed to the judge of the Special Court and the 36th Additional City Civil
and Sessions Court, was delivered directly to the court officer by an inspector
of the DVAC on June14. The Special Public Prosecutor (SPP) was not informed of
it.
The Special
Court asked the DVAC to explain in writing why it chose to write to the court
directly while keeping the SPP in the dark. “What was the need to give this
letter bypassing the Prosecutor? On what provision of the law have you written
this letter directly to the court? Normally, whatever the investigating agency
has to submit before the trial court has to be done through the prosecutor,”
Judge B.M. Mallikarjunaiah told DVAC Inspector A. Immanuel Gnan Sekhar, who
delivered the letter to the court.
At this
juncture, SPP B.V. Acharya pointed out that the Supreme Court, while
transferring the trial to Bangalore from Chennai, had condemned a similar type
of conduct. He also urged the court to ask the DVAC why contempt of court
proceedings should not be initiated against it.
As the judge
was passing an order to summon the Deputy Superintendent of Police of the DVAC
who had written the letter, it was pointed out to him that the police officer,
G. Sambandam, was present in the court.
As Sambandam
informed the court that he had been assisting the investigating officer for a
long time and was attending the court proceedings, the Judge asked him to
explain under what provisions of the law the letter had been directly sent to
the court.
Acharya
submitted that the court should proceed with recording the statement of the
accused persons as contemplated in Section 313 of the Criminal Procedure Code,
as the letter was another method intended to delay the trial. He argued that
the court should not mix the issue of the letter with the main case.
Sambandam
informed the court that a similar action was taken in another case in Chennai
and that the instant letter was written under “instructions.” He sought time to
submit his explanation in writing.
Meanwhile,
counsel for the accused sought adjournment of the proceedings till the hearing
on a petition filed by one of the accused (Sasikala Natarajan) before the
Karnataka High Court challenging the special court's order refusing to recall a
witness. Counsel stated that the hearing was adjourned to June 21 on the
request of the lawyer appearing for the DVAC.
However, Acharya
opposed the adjournment and submitted that the High Court had refused to stay
the proceedings. The DVAC had now appointed a new lawyer to represent it before
the High Court.
While
rejecting the plea for adjourning the proceedings, the Special Court directed
the DVAC to make available copies of the letter to the SPP and the accused. It
adjourned the proceedings to June 18.
The
application filed by the DVAC, intimating the court that it is investigating
the case, says the Tamil Nadu Chief Secretary, who also holds charge as
Vigilance Commissioner and Commissioner for Administrative Reforms, conducted a
review meeting on June 3 in Chennai relating to the cases pending in the
Special Investigation Cell, DVAC.
“The Chief
Secretary has pointed out certain patent lapses [that have] occurred in the
Special Case No. 208/2004 [disproportionate assets case against Ms. Jayalalitha
and others] during the investigation and directed to rectify the lapse and
discrepancies pointed out by his letter dated June 8, 2011,” the application
points out.
Deputy
Superintendent of Police G. Sambandam, investigating officer, also states in his
application that he was submitting these facts to the Special Court by way of
intimation as per the guideline of the Supreme Court, in its verdicts, that
permits such further investigation without prior permission of the court.
On September
14, in a further setback to Jayalalitha, the Karnataka high court on Friday
directed the DVAC, Chennai, not to undertake further investigation in the Rs
66-crore disproportionate assets case involving her.
Allowing a
criminal petition filed by senior DMK General Secretary Prof. K Anbazhagan,
Justice V Jagannathan directed the special court in Bangalore to adhere to the
Supreme Court order of 2003 which while transferring the trial from Tamil Nadu
said the special court should hold it on day-to-day basis.
"The SC
has said that under the guise of further inquiry, no re-investigation or fresh
investigation can be undertaken. What has been done cannot be undone," the
court said. "The letter written directly to the special court on June 15,
2011 says that the Investigating Officer wants to take up further investigation
from where it stopped in an effort to undo the past. Further investigation
sought to be undertaken when the matter has reached the stage of recording the
statement of the accused and SC had already fixed the date of appearance.
An attempt
is being made to subvert the course of justice and needing this court to invoke
its inherent powers available under section 482 of Criminal Procedure Code as
it is an extraordinary situation,'' the judge said.
Prof. Anbazhagan
sought for conducting the trial on a day-to-day basis as per the SC's directive
and also that DVAC should be directed to intimate each and every move through
the Special Public Prosecutor (B V Acharya ) only.
After
Jayalalitha came back to power in May, DVAC had appointed another counsel (M T
Naniah) to plead its case before high court. But that move was negated by the
high court.
Jayalalitha
suffered yet another setback on Jan.31, 2012 with the Supreme Court rejecting
the Tamil Nadu government's appeal against the Karnataka High Court order
refusing to entertain its plea for a further probe in the disproportionate
assets case against her and four others pending before a special court in
Bangalore.
A Bench of
Justice Dalveer Bhandari and Justice Dipak Misra, dismissing two appeals filed
by DVAC Superintendent of Police, said, “We are not inclined to interfere with
the impugned order.”
The Bench
asked the special court to complete the trial as expeditiously as possible,
uninfluenced by the observations made by the High Court in the impugned order.
Special
leave petitions were filed by the State against the orders of the Karnataka
High Court quashing the decision of the DVAC to order a further probe in the
wealth case.
The High
Court had quashed the DVAC's communication for further probe dated June 15, 2011
on a petition filed by DMK General Secretary Prof. K. Anbazhagan challenging
the communication.
Senior
counsel Ashok Desai, appearing for the State said, “We wanted to conduct
further investigation since certain defects and infirmities were noticed.” He
cited various decisions and said the right of the Investigating Officer for
further probe could not be interfered with.
Justice
Dipak Misra told counsel, “You [police] have a right for further probe, but at
what stage is the question. If it is an attempt to frustrate the trial, the
whole trial will become a mockery.”
Senior
counsel Rakesh Dwivedi, who also appeared for the State, justified further
probe.
Special
Public Prosecutor and Karnataka Advocate General B.V. Acharya traced the
genesis of the case and explained to the court how it was transferred from
Chennai to Bangalore in 2004.
He said
despite his best efforts the trial could not be concluded for the last eight
years as application after application was being filed in the special court and
the High Court and every attempt was being made to delay the process. He said
in 2001 a similar attempt was made to order further investigation in the London
hotel case and as a result the whole case was weakened.
The High
Court pointed out this fact and had held that the intention to order further
probe was not bona fide and had quashed the communication. He said the impugned
order should not be interfered with.
Senior
counsel T.R. Andhyarunjina, appearing for Prof. Anbazhagan, pointed out that in
the meeting held on June 3, 2011 the decision for further probe was taken.
He said
between May 16, 2011 and June 3, 2011 various officers were replaced and a new
set of officers posted, and in the guise of reviewing various cases a decision
was taken for further probe in this case.
He said in
this case the chargesheet was filed in June 1997 and since then various attempts
were being made by Jayalalitha to frustrate and delay the trial by all means.
The intention of the government was not bona fide and if only Prof. Anbazhagan
had not challenged the decision, the whole trial would have been vitiated,
counsel said and sought dismissal of the appeals.
With the
Democle’s sword (the assets case) hanging over, the days of Jayalalitha regime
are numbered!
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