DMK Youth Wing: Building From Below And Imparting Ideological Orientation

The youth are idealistic. There are worlds to conquer, battles to win, deeds to be done. They have not yet learned what can’t be done. They do not get jaded by life’s heartbreaks and defeats. And because they don’t know what can’t be done, they often achieve great things. They have boundless energy. They never tire in whatever work they passionately believe in. They approach many things with a clear slate. They don’t have many of the old prejudices, that the older adults have. This is why there is often less of a problem with communal and casteist bigotry among the young than the old.
The DMK leadership correctly estimated the strength of the youth in society and successfully harnessed their idealism and boundless energy for the principles and programmes of the movement, which were mostly youth-oriented.
Whether it was the demand for Dravidanadu and later giving it up even while asserting that the reasons for secession still remained, or the agitations against Hindi imposition or the silent revolution for social reform through persuasive activities like self-respect and inter-caste marriages – they were more targeted towards younger generations in the interests of their future than the aged, who had got accustomed to living with the prevailing oppressive traditions and suffocating realities of life in absolute despondency. Of course, the Party did not lag behind in voicing the grievances of the people and launching struggles on issues like price rise and on sectional problems of workers, handloom weavers et al, as it was growing into a mass movement.
The appeal of the DMK for the youth did not abate but expanded and widened as it emerged during the anti-Hindi agitation in 1965 by the student community, the cream of the youth. It was because of such massive movements led by the Party that the menacing advance of Hindi as the sole official language was halted.
After assuming power in the State in 1967, the DMK government launched several schemes for the youth of both genders. Even as a ruling party, the DMK gave a call for organizing a ‘Day of Uprise’ urging the Centre to start Salem Steel Plant – both as a matter of staking the State’s right and for creating employment opportunities for youngsters.
The previous government of Kalaignar was pursuing a vigorous programme of industrialization taking Tamil Nadu as the most favoured destination for both domestic and foreign direct investments, thus creating tens of thousands of direct and indirect employment. In order to provide more avenues for self-employment, the DMK government was taking special interest in popularizing Self Help Groups of both young women and men and lakhs in both gender make a decent living. In order to provide at least minimum relief to the educated unemployed, the government was providing monthly financial assistance to these young men and women. One of the earliest measures taken by the government was scrapping of the freeze on recruitment to government service and departments imposed by the previous ADMK government and filling up all vacancies. Accordingly 2,28,149 youth were provided employment in five years as against the DMK poll promise to fill up three lakh vacancies in government jobs. To compensate the loss of five years for employment avenues, the minimum age in government employment for different sections of unemployed youth, was also raised by five years.
Although the Party and its governments were youthful as ever and fully addressing the concerns of the younger generations, the need for the self-initiatives of the next generations of the cadre, for strengthening the movement was felt, giving birth to the DMK Youth Wing in 1980 rightly under the stewardship of Thalapathi M.K.Stalin, who had pioneered a Youth DMK unit in his residential area Gopalapuram and involved it in all the functions and programmes of the Party. It must be underlined that the Youth Wing was inaugurated and started spreading its wings all over the State under terribly hostile and oppressive regimes. The cadres of the wing were in the forefront in all the actions and agitations of the Party against a fascist regime. Grown-up and matured under such inimical circumstances, the Youth wing cadres naturally were selfless, steeled in courage and determination. 

It is also noteworthy that the Dravidian movement in general and the DMK, the movement of the youth, by the youth and for the youth, in particular was mainly instrumental for guarding the youth of Tamil Nadu, from going astray into fissiparous, communal, chauvinist and extremist tendencies and maintain the traditions of tolerance, amity and peace loving, despite periodical provocations.
It is this strength of the wing that Kalaignar wants to boost further and prepare it more intellectually and ideologically organized so as to lead the entire youth community on a noble and idealistic path, with the same spirit and zeal of those who followed Arignar Anna in 1949.
With this objective in mind and in order to infuse fresh blood into the Youth Wing, Thalapathi M.K.Stalin launched a campaign for identifying  and recruiting new talents from the grass root levels and rejuvenate the Youth Wing.

In the first phase, interviews were conducted by Thalapathi M.K.Stalin assisted by Youth Wing Deputy Secretaries M.Subramanian, E.Sugavanam MP, SP T Sampath, Paranamathupatti Rajendran and Hasan Mohammed Jinnah, in all districts, among the aspirants for appointment of functionaries at Unions, town panchayat wards and area levels. Age limits upto 30 for the three levels and 40 years for district and city levels were fixed. In all those interviews in districts which were conducted, the respective party district secretaries were also present. At the end of the process, Thiru Stalin said over one lakh youngsters participated in these. Then lists of functionaries, for these positions were finalized with the approval of party leadership and announced.


In the second phase, these newly recruited youth wing functionaries were given ideological orientation through well organized Training camps conducted in all districts.
Eminent scholars and experienced DMK leaders including Dr. M.Nannan, Prof. Abdul Kadher, Prof. Sabapathi Mohan, Prof. A.Ramasamy, Dr. K.Ponmudy, Thiru Durai Murugan, 


N.Selvendran and N.Siva MP imparted training on ‘History of the Dravidian movement’. ‘Social Justice’ and ‘Language agitation’. Those who attended the camps were much benefited.
In the third phase, interviews for ‘appointing organizers and deputy organizers for district and city units were conducted at Anbagam, the Youth Wing headquarters in Chennai.
The DMK’s Youth Wing will hold a State-level conference soon after obtaining permission from the party high command, said Thalapathi M.K. Stalin, secretary of the youth wing on Sep.19 at the end of the third phase.

More Questions raised than Clarifications offered

Delivering the valedictory address at the sesquicentenary (150^th year) celebration at the Madras High Court on September 8, President Pranab Mukherjee noted with concern:

“The separation of powers, long established as one of the basic features of our Constitution, ensures that each organ of government operates within its own sphere and none takes over functions assigned to the other.  It is the Constitution that is supreme. The laws are enacted by the legislature, the executive does the implementation, and the judiciary is the final interpreter of these laws.  The delicate balance of power enshrined in the Constitution should be maintained at all times.

However, a note of caution needs to be sounded.  Judicial activism should not lead to the Constitutional principles of separation of power getting eroded. Judicial pronouncements must respect the boundaries that separate the Legislature, Executive and Judiciary.

The principle of separation of powers is equally a principle of restraint.  While the exercise of powers of the legislature and executive are subject to judicial review, the only check on the judiciary’s exercise of powers is the self-imposed discipline and self-restraint.”

Chief Justice of India S.H. Kapadia on August 25 said judges should not govern the country or evolve policies, and they should apply the enforceability test on some verdicts like making sleep a fundamental right.

Doing some frank introspection on the judiciary’s functioning, he wondered what would happen if the executive refused to comply with its directives that might not be enforceable.

“Right to life, we have said, includes environmental protection, right to live with dignity. Now we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore enforceability.

“Questions which judges must ask are if it is capable of being enforced. Judges must apply enforceability test. Today if a judge proposes a policy matter, the government says we are not going to follow. Are you going by way of contempt or [to] implement it?” the CJI asked.

Delivering a lecture on “Jurisprudence of Constitutional Structure,” he was making an apparent reference to the recent Supreme Court judgment on police action against Baba Ramdev’s supporters on the Ramlila Maidan, in which “Right to Sleep” was declared a fundamental right.

“Judges should not govern this country. We need to go by strict principle. Whenever you lay down a law, it should not interfere with governance. We are not accountable to people. Objectivity and certainty enshrined in the basic principles of the Constitution have to be given weightage.”

Justice Kapadia said judges should go strictly by the constitutional principles which had clearly demarcated powers among the judiciary, the legislature and the executive.

These statements from the Head of the State, the President of India and the Chief Justice of India have at a time when they were intended not to join any public discourse at the national level, but borne out of serious concern over the increasing trend of the judiciary authoritatively infringing upon the domains of the executives, leading to cascading impacts on industry, economy and foreign relations of the nation and the very democratic fabric of the country.

Meanwhile, the Supreme Court on Sep.17 refused to entertain a government's plea not to hear a PIL on alleged irregularities in the allocation of coal blocks and sought an explanation whether guidelines were flouted in allotments.

The apex court, which turned down the Centre's contention that the petition based on the CAG report which is under the scrutiny of Parliament's PAC cannot be considered, said "the petitioner has sought to point out illegality and there is nothing wrong in it."

A bench comprising justices R M Lodha and A R Dave said the prayer seeking a direction for alleged "unconstitutional" and "arbitrary" allocation of coal blocks "requires explanation from you (centre) because it is not the distribution of state's property in small scale but it talks about tons of largesse."

The bench rejected Solicitor General Rohinton Nariman's contention that the petition based on the CAG report was "premature" as the Public Accounts Committee (PAC) headed by senior BJP leader Murli Manohar Joshi was slated to examine it from September 20 about the correctness of allocation.

"Nevertheless, keeping in view the CAG is a constitutional functionary and whether its report is final or not, it has a value. And here the petitioner has sought to bring point to show illegality and there is nothing wrong.

"Least are we concerned with the correctness of report which will be examined by the PAC or Parliament. But we can rely on it (CAG report)," the bench said adding that "these are different exercises (before the court and PAC)."

"There is a difference in the exercise done by the Public Accounts Committee (PAC). Parliament and PAC can proceed with the issue on the basis of the CAG report. We don't want to encroach upon their exercise but the petition raises different things altogether. There are sufficient averments which require explanation from you," the court said.

Issuing the notice to the Government, the bench also made it clear that it is confining itself only to the aspect of guidelines formulated by the Centre for allocation of coal blocks and directed the Secretary, Ministry of Coal, file a detailed affidavit within eight weeks on the guidelines and policies followed on the subject of allocation of coal blocks.

The court passed the order while hearing a PIL filed by advocate M L Sharma on the alleged coal blocks scam which has purportedly caused a huge loss to public exchequer.

The bench also sought to know whether the guidelines for allocation of coal blocks were strictly followed and whether by their allocation, the objectives of policies were realised.

The bench wanted to know what were the hindrances for not following the policy of "competitive bidding" adopted by it in 2004 for allocation of the coal blocks.

Lastly, the court sought to know what steps were proposed to be taken against the allottees who have not adhered to the terms of allocation or have breached the agreement.

During the hearing, the Solicitor General informed the bench that the criminality aspect of the alleged irregularities in the coal block allocation was already being looked into by the CBI.

"We are at present touching the allocation part and no other thing," the bench said. "Our focus is on the issue of guidelines followed in the allocation of coal blocks," it added.

In spite of the Solicitor General pleading that the CAG report on coal allocation submitted to the Parliament is to be taken up for examination by the Public Accounts Committee from Sep.20 about the correctness of the allocation, and hence the petition based on the CAG report was ‘presumptive’, the court was impatient and had refused to entertain the plea the court had said ‘the CAG is a constitutional functionary’ ‘Least are we concerned with the correctness of the report’ . “But we can rely on it”, which is patently contradictory. Once again they have asked why the policy of ‘competitive bidding’ was not followed. It is here the points raised by Union Minister Kapil Sibal, also a Senior Counsel of the Supreme Court’ are relevant (See page No.9 of this issue)

If the institution of the CAG is a ‘constitutional functionary’ what are the Executive and Parliament? If the CAG report is ipso facto sacrosanct, why should its correctness or otherwise be examined by the PAC and Parliament?

The observations of the Supreme Court raises more such questions than it clarifies!

Kalaignar dares Jaya for debate on Self-respect

Pointing that having been born in, brought up with and propagating self-respect all through his life all over the country, he would never lose self-respect, DMK President Kalaignar M.Karunanidhi , taking strong exception to Jayalalitha’s speech she read out at a government function in Srirangam, said having sought more than 200 adjournments so far in the Disproportionate Assets case against her, Jayalalitha should not speak about self-respect. He challenged her for a debate on self-respect.

Kalaignar participated in the Mupperum Vizha - marking the birthdays of Thanthai Periyar and Arignar Anna and the Founding Day of the DMK – in Villupuram, taken on a very large scale like a conference by the District DMK and presented Periyar Award to Mumbai P.Appadurai, Anna Award to A.Rahman Khan, Bharathidasan Award to Tmt. Subbulakshmi Jagadeesan and Kalaignar Award to R.D.Seethapathi and prizes to winners among college and school students in the Bharathidasan poetry recitation competitions and best auto drivers.

Recalling his early days in public life and association with Villupuram, Kalaignar said while utilizing films and dramas for propagating the principles of the movement, for the first time they started a drama ‘Saantha Allathu Palaniappan’ on behalf of Naagai Dravida Nadigar Kazhagam only in Villupuram. “In those days, we were very new and surprising for party comrades and public. I still remember. There is one river Pambaiyaru at the edge of Villupuram which flows and not flows. We, of the DK and that Nadigar Sangam would go to that river for bathing and return to the mandapam where we were staying, holding up in hands, shirts and dhotis for drying in sun light. Thus this place Villupuram is where we moved together.”
Stating that the town was one among the unforgettable places in his public life, particularly in political and DMK history, Kalaignar mentioned unforgettable names – Shanmuga Udayar, Thangavelu and A.Govindasamy then and Ponmudy now.

Now in 89 and not knowing for how many more years he would serve, Kalaignar said he was living with the desire to continue to serve with the same spirit. Referring to the earlier speakers mentioning about upsurge among DMK ranks now, Kalaignar said he had the pride of creating it in those days. “If Stalin is now hailed as hero of future, hero of uprising, hero of youth etc., I am proud that he is my son. I could see such youth developing themselves and working for the party with the feeling of dedicating their strength and potential to the movement.”
Punning on the word Vizhupuram, Kalaignar said now not only in Vizhupuram but manyplaces and the entire Tamil Nadu had turned into ‘Vizhapuram’ because of festivity and it would always be ‘Veezhapuram’ never falling down.
Referring to the speakers pointing out that the younger generation now had gained inspiration, Kalaignar said he was consciously aware of that inspiration which had derived in his early years. Kalaignar recalled a conference he organized in Tiruvarur under the auspices of ‘Tamil Nadu Tamil Manavar Mandram’ for which he had invited Com. Mathiazhagan and Prof. K.Anbazhagan who were then studying in Annamalai University. It was the first time himself and Anbazhagan met at the railway station and their friendship continued till date and would continue for ever in spite of efforts to cause rift between them, Kalaignar affirmed adding he formed himself listening to Anbazhagan’s speeches, reading his research articles and witnessing his works. Similarly he moulded himself by listening speeches of Anna and reading and imbibing by heart the writings of Anna and poems of Bharathidasan.

Kalaignar said though he was now 88 years old and had won all the 12 elections he had contested so far, the latest being at Tiruvarur, where he romped home with a margin of 56,000 votes, it did not bring him cheer because the DMK had lost even the Opposition party status in the Assembly.
He would not blame partymen for such a state of affairs, but attributed it to the mistakes committed by those for whom the DMK and its leaders toiled. Yet, he did not have any grief or anger over the turn of events because he was of the firm view that every failure was a stepping stone to success.
Kalaignar said when he contested from Kulithalai constituency for the first time in 1957, he said he secured women votes in large numbers and in one booth for women in Thanneerpalli village the box for Congress was empty. According to the saying that only if you consider defeats as steps you can achieve victories, he was working unbothered about victories and defeats.

Explaining the importance of politics in relation to social  task, Kalaignar said we were using politics as an instrument for uplifting the society and to remove evils in it. Politics was helpful for us to successfully carry out social tasks. If we throw away the help for carrying out social tasks, we won’t get total success. Although Periyar discarded politics and elections, only because of DMK’s help we could give legal form for his principles and views. Hence for societal success we need politics also. There were days when organizing self respect marriages faced many difficulties and they were legally not valid. But conducting self-respect marriages was a social principle to successfully implement which we required politics. Only because we brought a legislation in the Assembly they were legalized. By giving effect to the law to marriage conducted previously also, a social revolution was accomplished only because politics was useful for us, we could implement our social objective, Kalaignar said.
The DMK, in spite of all difficulties, obstructions and anarchy of ruling party, was determined to accomplish its social objectives.
Hitting out at Jayalalitha for stating that he had no self-respect, Kalaignar said she should not speak about it without knowing what it was. “Where it is available? Whether they will measure or weigh and give? Will it come from Bangalore? Self respect is not an ordinary matter. It is my movement’s spirit. Periyar and Anna spread and developed that spirit among youth like me in those days.”
Kalaignar said he was born in a family of music tradition. The community in which he was born faced many difficulties from higher caste people. However great musical experts born in that community were not respected and decried. Even great vidwans like Rajarathinam PIllai, Kulikarai Pichaiyappa Pillai, Tiruvengadu Subramaniam Pillai had to take away towels from their shoulders and tie around waist on seeing higher caste people and pay respects. When he was studying in school in Tiruvarur and came to his village he used to have a towel on his shoulders. Elderly people in the village would snatch the towel in Agraharam and ask him to tie around his waist. On reaching home he refused to go for training in music because he had to give up self-respect. If he could not wear the towel he purchased with his money and had no right for that why this training in music and threw away those music instruments. Thereafter he never saw any vidwans and got acquainted. Thereafter he knew only vidwans Perasiriyar and Navalar Nedunchazhiyan and Maha Vidwan Arignar Anna. It was only because he refused to bow before that condition sans self-respect in his young age that he continued to be a worker of self-respect movement till date, Kalaignar asserted.

When reporters asked him to describe his nature in one line, he told them, “I am a self-respect man with self esteem.” He gave so much importance, for self-respect because ‘khd« v‹ kf‹ nf£l jhyh£L, kuz« mt‹ Moa éisah£L’ (Self-esteem was the cradle song my son listened to. Death was the game he played) “Did not he (Stalin) play with death during MISA imprisonment” which Chittibabu had written. All the guards and speakers in the party had suffered imprisonments, attacks and stone pelting. Kalaignar said if only he had given up self-respect and succumbed to ADMK, he would not have been beaten and dragged away from his house by the police in 2001 resulting in pain in his shoulder, a surgery in the spinal cord and the present movement on a tricycle. Only because he was so firm that he did not come down to the level but Tamil Nadu had come down, where Jayalalitha could say that he had no self respect, he resented.

If he kept patient on Jayalalitha telling like this about him, which would certainly agitate DMK rank and file, it was because there should not be any uproar in Tamil Nadu. Let us not reply to them. Let them look at the mirror and find out who did not have self respect.

Those who sought over 200 adjournments were reminded of self respect. The court itself held that their guilt was true,” a chief minister buying government property was wrong. We point the mistake behave yourselves atleast hereafter.” Do these people have self respect? Quite unbothered about shame, they sought over 200 adjournments and now complained that the appointment of a judge itself was not valid.  Those who did all these claimed that they had self respect and accused him of losing it. “Being born, brought up and propagating self respect all through my life, I will never lose self-respect.” Nobody is born in Tamil Nadu to snatch away my self-respect. If anybody vouch to do it they can’t be Tamils, Kalaignar categorically said.
“People know my history. I know their history. Shall we have a competition? Shall we conduct a debate on the incidents of losing self-respect and who were involved? One day debate on self-respect not in the Assembly but in a common hall. Come for the debate. No quarrels and exchange of blows will happen. Particularly when a man and a woman debate, I don’t like all these things. Hence stop with talking about self-respect. If my younger brothers start replying to all these, it will go to end somewhere.” (applause)

Slamming the ruling ADMK over the handling of the anti-nuclear protests at Kudankulam, Kalaignar charged the Jayalalitha government with having no intentions and courage to hold talks with the agitators to put an end to the stir.

“What is happening at Kudankulam? People are apprehensive over such a big project started with an investment of crores of rupees. The state cabinet (last year) urged the Centre to allay the people’s fears regarding the plant before proceeding with it, giving hopes to them that the government was on their side,” he said.

However, Jayalalitha made a flip-flop on her stand vis-a-vis the project and as works gathered pace, protests also intensified, he said.

 “There seems to be no intention and courage (on part of the government) to hold talks with them. They seem to control them by use of force,” he said, recalling the death of a fisherman protesting against the plant in police firing early this week.

Police had also lobbed teargas shells to disperse protesters at Idinthakarai, the epicentre of the protests against the Indo-Russian joint venture.
People were asking how many more lives would go (before the issue was solved), he said, adding, talks should be held to put an end to the continuing protests.

Kalaignar said the party plans to accord 30 per cent reservation to youth in the elections to come. He  said that he came up with this idea after witnessing the rising strength of the youth wing of the party.

“It is not necessary that only those elders who had been fielded earlier should contest in the upcoming elections. We may give opportunity to the youth by allocating at least 30 per cent seats to them. Women contestants may get 5-10 per cent seats. I will discuss this with party General Secretary Prof. K Anbazhagan and will come out with a detailed plan for the upcoming elections,” he said.

The Dravida Munnetra Kazhagam will soon decide on the percentage of seats to be allotted to youth and women for the Lok Sabha and other elections. In his opinion, 30 per cent of the party seats could be earmarked for the youth and five to 10 per cent for women.
Though the issue had not come up yet for formal discussions in the party forum he had done some loud thinking in this regard so that Party General Secretary Prof. K. Anbazhagan, who was present on the dais, would know his mind, he said. After due consultations with senior leaders such as Prof. Anbazhagan, the party would announce its policy on reservation of seats for these two categories of the party cadre, Kalaignar said.
Prof.  Anbazhagan said that he could think of only one reason for the drubbing which the party received in the elections, i.e., the partymen’s failure to observe discipline. He called upon the cadre to safeguard the party discipline to get back to glory.

Can’t Have Multiple Executives CAG policy prescriptions have triggered a constitutional crisis

Kapil Sibal

When institutions other than the executive try their hand at policymaking, the consequences can be disastrous. The Union government is charged with the responsibility of framing policy and implementing it. The government is accountable to the people through parliament. The people’s representatives in parliament can take the government to task for both faulty policymaking and faulty implementation. This is reflected in proceedings in parliament through Question Hour and debates under various procedures of the two Houses of parliament. Government decisions are also subject to judicial review if they fall foul of constitutional provisions. The executive is, therefore, institutionally accountable.

    Of late, we have seen constitutional authorities indulging in policymaking. The CAG is a shining example of this aberration. The function of the CAG under Article 149 of the Constitution is to audit the accounts of the Union of India and of the states under a law made by parliament. The CAG is entitled to ensure that allocations made are duly applied or charged and that all expenditure conforms to the authority which governs it. The auditor is not a policymaker. Rightly so.

    Whether or not a particular natural resource is to be auctioned is not for the CAG to decide. That is not an accounting function. The allocation of a natural resource is not a budgetary allocation; nor does it have any semblance to the application of a budgetary allocation. The government may decide that a natural resource, in given circumstances, be distributed in a manner that serves a particular social and economic objective. If Aakash were to be given free to 11 million children in higher secondary schools in the country with the objective of empowering them, it is not for the CAG to comment on such a policy. Of course, the government would forego revenue. If Aakash were to be priced or put to auction, it will fetch revenue for the government. But that may not be the government’s objective. Nor is it within the domain of the auditor to tell us in what manner government should deal with Aakash. The CAG in the context of his personal understanding of his authority could raise an audit objection by stating that government should have charged the cost price of Aakash from all parents who can afford to pay, and that not doing so has resulted in a revenue loss. Supposing, the CAG were to do that, what can the government do?

    It cannot raise the issue in parliament because the report of the CAG is to go to the Public Accounts Committee (PAC) for consideration. The PAC examines audit reports and prepares draft reports, which are finally adopted by the PAC and presented to the Lok Sabha. The reports, inter alia, contain a summary of the PAC’s conclusions and recommendations. Although it is open to the Lok Sabha to discuss reports of the PAC, such discussions are seldom held though members often use them in their speeches in parliament on the budget demands for grants etc. If a specific issue is brought before the House and discussed on a motion, it is not put to vote. Clearly, the comments of the CAG cannot be effaced through parliamentary procedures. Nor can its report be challenged in court because it is not a binding decision. The government has no remedy.

    The CAG is not accountable to any constitutional authority except to the extent that its findings are the subject matter of consideration by the PAC. In the 2G case, the CAG’s figures of ‘presumptive loss’ based on a policy option of auctioning spectrum skewed public discourse. Somewhere in between the truth got lost. The CAG has now been emboldened to calculate private gain for entities in coal allocation at the astronomical figure of Rs.1,85,591.34 crore. Yet such audit reports lead to paralysis of parliament and all legislative business comes to a standstill. We are in the midst of a constitutional crisis because of the CAG’s policy prescriptions.

    The CAG was perhaps emboldened by the fact that the Supreme Court, in a recent judgment, cancelled all 2G licences granted as on January 10, 2008. The court’s jurisdiction to set aside executive decisions cannot be questioned. Courts, however, can be questioned when a policy prescription by the court directs that natural resources be dealt with in a particular manner. Such a policy prescription by the court is flawed exercise of jurisdiction. The reason is simple. The court is hardly a forum to deliberate with key stakeholders and formulate policy. Besides, its prescription of policy is not subject to any form and manner of accountability. Being the Supreme Court, its judgment is final and binds us all. In a fractured polity, even corrective legislative measures are destined to fail. A policy that binds us till the judgment is overturned suffers from serious lacunae.

    Policies by the executive, as already indicated, are subject to accountability in parliament. A court’s policy prescription can neither be questioned in parliament nor in a court of law subject to the possibility of a review, which is available only in theory. So policy decisions by courts or the CAG are abhorrent to the principle of separation of powers. Indeed they are antithetical to all we stand for in a vibrant evolving democracy.

    Governments are not in the business of maximising revenues. Instead of filling its own pocket, it is obliged, in a welfare state, to create an environment to fill the pockets of the ‘aam admi.’ Foregoing revenue in 2G helped tele-density and served a larger public purpose. Instead of the exchequer, the people were enriched. Auction in 3G enriched the government by fetching over Rs 1 lakh crore, but since 2010, there is no evidence of the roll out of 3G services. Without the roll out, bank debt cannot be serviced. The telecom sector is now under heavy debt. It has not recovered since.

    You cannot have three executives running the government. The consequences of this are apparent. A vibrant telecom industry has been diminished. On account of the Supreme Court judgment, the government of India is exposed to litigation under the Bilateral Investment Promotion and Protection Treaty. Billions of dollars are at stake. Entities not charged for any wrongdoing found their licences cancelled. Vast investments were jeopardised. We can ill afford an environment in which investors around the world feel unsafe in making investments in India.

    This is not to say that courts should not strike down individual allocations. Individual acts of criminal culpability must be dealt with. Criminal wrongdoing must not be condoned. The CAG is also entitled to indict the government for misapplication of funds or for that matter any wrongdoing in not economising or effectively and efficiently applying budgetary allocations for a particular end. But the manner in which public assets are distributed for a particular end must be decided upon by government. Not by the CAG. Not by courts.

   

 The writer is a senior minister in the Union Cabinet, holding human resource development and telecommunications portfolios.

More Questions raised than Clarifications offered

Delivering the valedictory address at the sesquicentenary (150^th year) celebration at the Madras High Court on September 8, President Pranab Mukherjee noted with concern:

“The separation of powers, long established as one of the basic features of our Constitution, ensures that each organ of government operates within its own sphere and none takes over functions assigned to the other.  It is the Constitution that is supreme. The laws are enacted by the legislature, the executive does the implementation, and the judiciary is the final interpreter of these laws.  The delicate balance of power enshrined in the Constitution should be maintained at all times.

However, a note of caution needs to be sounded.  Judicial activism should not lead to the Constitutional principles of separation of power getting eroded. Judicial pronouncements must respect the boundaries that separate the Legislature, Executive and Judiciary.

The principle of separation of powers is equally a principle of restraint.  While the exercise of powers of the legislature and executive are subject to judicial review, the only check on the judiciary’s exercise of powers is the self-imposed discipline and self-restraint.”

Chief Justice of India S.H. Kapadia on August 25 said judges should not govern the country or evolve policies, and they should apply the enforceability test on some verdicts like making sleep a fundamental right.

Doing some frank introspection on the judiciary’s functioning, he wondered what would happen if the executive refused to comply with its directives that might not be enforceable.

“Right to life, we have said, includes environmental protection, right to live with dignity. Now we have included right to sleep, where are we going? It is not a criticism. Is it capable of being enforced? When you expand the right, the judge must explore enforceability.

“Questions which judges must ask are if it is capable of being enforced. Judges must apply enforceability test. Today if a judge proposes a policy matter, the government says we are not going to follow. Are you going by way of contempt or [to] implement it?” the CJI asked.

Delivering a lecture on “Jurisprudence of Constitutional Structure,” he was making an apparent reference to the recent Supreme Court judgment on police action against Baba Ramdev’s supporters on the Ramlila Maidan, in which “Right to Sleep” was declared a fundamental right.

“Judges should not govern this country. We need to go by strict principle. Whenever you lay down a law, it should not interfere with governance. We are not accountable to people. Objectivity and certainty enshrined in the basic principles of the Constitution have to be given weightage.”

Justice Kapadia said judges should go strictly by the constitutional principles which had clearly demarcated powers among the judiciary, the legislature and the executive.

These statements from the Head of the State, the President of India and the Chief Justice of India have at a time when they were intended not to join any public discourse at the national level, but borne out of serious concern over the increasing trend of the judiciary authoritatively infringing upon the domains of the executives, leading to cascading impacts on industry, economy and foreign relations of the nation and the very democratic fabric of the country.

Meanwhile, the Supreme Court on Sep.17 refused to entertain a government's plea not to hear a PIL on alleged irregularities in the allocation of coal blocks and sought an explanation whether guidelines were flouted in allotments.

The apex court, which turned down the Centre's contention that the petition based on the CAG report which is under the scrutiny of Parliament's PAC cannot be considered, said "the petitioner has sought to point out illegality and there is nothing wrong in it."

A bench comprising justices R M Lodha and A R Dave said the prayer seeking a direction for alleged "unconstitutional" and "arbitrary" allocation of coal blocks "requires explanation from you (centre) because it is not the distribution of state's property in small scale but it talks about tons of largesse."

The bench rejected Solicitor General Rohinton Nariman's contention that the petition based on the CAG report was "premature" as the Public Accounts Committee (PAC) headed by senior BJP leader Murli Manohar Joshi was slated to examine it from September 20 about the correctness of allocation.

"Nevertheless, keeping in view the CAG is a constitutional functionary and whether its report is final or not, it has a value. And here the petitioner has sought to bring point to show illegality and there is nothing wrong.

"Least are we concerned with the correctness of report which will be examined by the PAC or Parliament. But we can rely on it (CAG report)," the bench said adding that "these are different exercises (before the court and PAC)."

"There is a difference in the exercise done by the Public Accounts Committee (PAC). Parliament and PAC can proceed with the issue on the basis of the CAG report. We don't want to encroach upon their exercise but the petition raises different things altogether. There are sufficient averments which require explanation from you," the court said.

Issuing the notice to the Government, the bench also made it clear that it is confining itself only to the aspect of guidelines formulated by the Centre for allocation of coal blocks and directed the Secretary, Ministry of Coal, file a detailed affidavit within eight weeks on the guidelines and policies followed on the subject of allocation of coal blocks.

The court passed the order while hearing a PIL filed by advocate M L Sharma on the alleged coal blocks scam which has purportedly caused a huge loss to public exchequer.

The bench also sought to know whether the guidelines for allocation of coal blocks were strictly followed and whether by their allocation, the objectives of policies were realised.

The bench wanted to know what were the hindrances for not following the policy of "competitive bidding" adopted by it in 2004 for allocation of the coal blocks.

Lastly, the court sought to know what steps were proposed to be taken against the allottees who have not adhered to the terms of allocation or have breached the agreement.

During the hearing, the Solicitor General informed the bench that the criminality aspect of the alleged irregularities in the coal block allocation was already being looked into by the CBI.

"We are at present touching the allocation part and no other thing," the bench said. "Our focus is on the issue of guidelines followed in the allocation of coal blocks," it added.

In spite of the Solicitor General pleading that the CAG report on coal allocation submitted to the Parliament is to be taken up for examination by the Public Accounts Committee from Sep.20 about the correctness of the allocation, and hence the petition based on the CAG report was ‘presumptive’, the court was impatient and had refused to entertain the plea the court had said ‘the CAG is a constitutional functionary’ ‘Least are we concerned with the correctness of the report’ . “But we can rely on it”, which is patently contradictory. Once again they have asked why the policy of ‘competitive bidding’ was not followed. It is here the points raised by Union Minister Kapil Sibal, also a Senior Counsel of the Supreme Court’ are relevant (See page No.9 of this issue)

If the institution of the CAG is a ‘constitutional functionary’ what are the Executive and Parliament? If the CAG report is ipso facto sacrosanct, why should its correctness or otherwise be examined by the PAC and Parliament?

The observations of the Supreme Court raises more such questions than it clarifies!