Court Documents of Satta Panchayat Iyakkam: 2017

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION [CIVIL] NO.____________OF 2017

[Under Article 32 of the Constitution of India read with Order XXXVIII, Rule 12 (1) (d) & 2 of The Supreme Court Rules, 2013)

BETWEEN:

Satta Panchayat Iyakkam,

Rep. by its General Secretary,

Senthil Arumugam @ Senthil Kumar

S/o, Arumugam,

Aged about 40 years,

No. 31, South West Boag Road,

T. Nagar, Chennai-600017.

Email:sattapanchayat@gmail.com

Mobile:08754580274

Annual Income: Rs. 12,00,000/- p.a.

PAN No:AAMTS9791A;

Voter ID:XKR1411248.

Versus

1) Chief Election Commissioner,

Election Commission of India,

Nirvachan Sadan, New Delhi. ..Respondent-1

2). Chief Secretary,

Government of Tamil Nadu,

Secretariat, St. George Fort,

Chennai. ..Respondent-2

3) Union of India,

rep. by the Secretary

Ministry of Law & Justice,

Shashthri Bhavan,

New Delhi. ..Respondent-3

4) Tmt. Sasikala Natarajan,

W/o Thiru. M. Natarajan,

R/o. Vedtha Nilayam,

36, Poes Garden,

Chennai – 86.

Presently at Central Jail,

Parappana Agraharam Jail,

Bangalore,

Karnataka …Respondent-4

All are contesting Respondents

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA READ WITH ORDER XXXVIII, RULE 12 (1) (d) & 2 OF THE SUPREME COURT RULES, 2013 FOR MANDAMUS DIRECTION AGAINST RESPONDENTS FOR THE VIOLATION OF THE RIGHTS UNDER ARTICLE 14, 19 & 21 OF CONSTITUTION OF INDIA.

To,

The Hon’ble The Chief Justice of India

And His Companion Justice of the

Supreme Court of India

The Humble Petition of the

Petitioner above named

MOST RESPECTFULLY SHOWETH:-

1. The Petitioner who is a registered Trust constrained to file this Public Interest Litigation (PIL) by way of Writ Petition under Article 32 of the Constitution of India for Writ of Mandamus direction or any other appropriate writ or order of declaration to declare Respondent No.4/Smt. V.K. Sasikala disqualified from holding a political posts like General Secretary/President of AIADMK, State Recognized political party as she has been convicted for 4 years simple imprisonment in a disproportionate assets case and disqualified for being chosen and being a member of Legislative Assembly u/s. 8 (3) of Representation of People Act, 1951 read with Article 191 of Constitution.

1A. The copy of the judgment and order dated 27.9.2014 passed by the Trial Court i.e. 36th Addl. City Civil & Sessions Judge (Spl. Court for trial of criminal cases against Kum. Jayalalitha & Ors) at Bangalore in Special case Spl. C.C. No. 208 of 2014, copy of the judgment and order dated 11.5.2015 passed by the Ld. Single Judge of the High Court of Karnataka at Bangalore in Criminal Appeal No. 835 of 2015 and copy of the Judgment and order dated 14.2.2017 passed by this Hon’ble Court in the in Crl.A. Nos. 300-303 of 2017 are running more than 2500 pages and hence, the same will be filed separate volume after getting registration of writ petition or at the time of hearing of the present writ petition if the same are required by this Hon’ble Court. Hence, WP may be posted for hearing at my own risk.

1B It is clarified that the Respondent viz. individual V.K. Sasikala is a necessary party as the relief and direction sought against her directly.

2. FACTS OF THE CASE:

2.1. From 1991-96, Late Selvi J. Jayalalitha was the Chief Minister of Tamil Nadu. The AIADMK Party headed by her was defeated in the general election held in 1996 and DMK Party was voted to power. Special Courts were constituted for the trial of cases filed against Late Selvi J. Jayalaltha and Respondent/V.K. Sasikala, the constitution of Court came to be upheld by this Hon’ble Court.

2.2. And thereafter, in the year 1997, CC No. 7 was filed for the trial against Late Selvi J. Jayalalitha & Respondent/V.K. Sasikala etc.ect., who have been charge-sheeted for offences under Section 120-B IPC, Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 for accumulation of wealth of Rs 66.65 crores, disproportionate to their known sources of income.

2.3. In the year 2001, CC No. 2 of 2001 was filed on the file of the Principal Special Judge, Chennai. Late Selvi J. Jayalaitha & Respondent/V.K. Sasikala etc.etc. have been charge-sheeted for offences under Section 120-B IPC, Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 for acquisition and possession of pecuniary resources and property outside India, which are disproportionate to their known sources of income, by resorting to clandestine transfer of funds belonging to Late Selvi J. Jayalalitha with the help of Mr T.T.V. Dinakaran from India to outside country by violating the provisions of the Foreign Exchange Regulation Act and from other countries into the United Kingdom.

2.4. In the general election held in May 2001 AIADMK Party headed by the Late Selvi J. Jayalalitha secured an absolute majority in the Legislative Assembly. Late Selvi J. Jayalalith was unanimously chosen to be the leader of the House by the AIADMK Party. The said appointment was challenged and Hon’ble Supreme Court has nullified that appointment. Consequently, on 21-9-2001, and Late Selvi J. Jayalalitha ceased to hold the office of Chief Minister. The present Chief Minister Mr. O. Paneerselvam is a nominee of Late Selvi J. Jayalitha was sworn in as the Chief Minister of Tamil Nadu. The Election Commission of India announced the bye-election to Andipatti Constituency. In the bye-election held on 21-2-2002, Late Selvi J. Jayalalitha was declared elected and she was again sworn in as the Chief Minister on 2-3-2002.

2.5. With change in Government, three Public Prosecutors resigned. Senior Counsel S. Natarajan, who was appearing for the State, also resigned. And IO Nallama Naidu, who had earlier been given an extension, also resigned. Even though it has nothing to do with the change in Government, that due to retirements and routine transfers there were changes in the Special Judge also. On 7-11-2002, the trial in CC No. 7 of 1997 resumed. Since 7-11-2002 when the trial resumed as many as 76 PWs have been recalled for cross-examination on the ground that counsel appearing for the respondents or some of them had earlier been busy in some other case filed against them. The Public Prosecutor did not object and/or give consent to the witnesses being recalled. Out of total 76 PWs, 64 PWs resiled from their previous statement-in-chief. The Public Prosecutor has not made any attempt to declare them hostile and/or to cross-examine them by resorting to Section 154 of the Indian Evidence Act. No attempt has been made to see that court takes action against them for perjury. The presence of Late Selvi J. Jayalalihta has been dispensed with during her examination under Section 313 CrPC and instead a questionnaire was sent to Selvi J. Jayalalitha and her reply to the questionnaire was sent to the court in absentia. The procedure so adopted is unknown to law and the Public Prosecutor has not objected to the application of Late Selvi J. Jayalalitha for dispensing with her presence at the time of examination under Section 313 CrPC.

2.6. That in the above facts and circumstances, two Transfer Petition (Criminal) Nos. 77-78 of 2003 have been preferred before the Hon’ble Supreme Court of India under Section 406 of the Code of Criminal Procedure, seeking transfer of CC No. 7 of 1997 and CC No. 2 of 2001 on the file of the XIth Additional Sessions Judge (Special Court No. 1), Chennai in the State of Tamil Nadu to a court of equal and competent jurisdiction in any other State by the then opposition party Dravida Munnetra Kazhagan (DMK) through its leader K. Anbazhagan.

2.7. That this Hon’ble Court in the above case of “K. Anbazhagan Vs. Superintendent of Police & Ors. Reported in (2004) 3 SCC 767, para 34 on 18^th November, 2013, has transferred the disproportionate assets case of Late Selvi J. Jayalalitha and Respondent/V.K. Sasikala etc. etc. from the State of Tamil Nadu to State of Karnataka when she was in power as Chief Minister of State of Tamil Nadu and passed various direction order as stated in the above said reported judgment.

2.8. After prolong delay of more than 18 years, on an appreciation of entire evidence & exhibits, Hon’ble Mr. Justice Michel D. Kunha, Special Judge of Special Court at Bangalore, Court of XXXVI Addl. City Civil and Sessions Judge, Bangalore in Special Case C.C.No.208/2004 by his judgment and order dated 27.9.2014 convicted Late Selvi J. Jayalalitha & Respondent/V.K. Sasikala etc. etc. and sentenced them to simple imprisonment for four years and fine of Rs. 100 Crore under section 13(2) & 13(1)(e) of prevention of Corruption Act read with section 120B IPC as follows:-

“O R D E R

Prosecution has proved beyond reasonable doubt that as against the income of Rs.9,91,05,094.75 and expenditure of Rs.8,49,06,833.00 during the check period, A-1 acquired and possessed in her name and in the names of A-2 to A-4 and in the names of the business enterprises acquired in their names immovable properties and pecuniary resources of the value of Rs.53,60,49,954.00 which she could not satisfactorily account. Hence, acting u/Sec. 248 (2) of Cr.P.C., A-1 is hereby convicted for the offence punishable u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of P.C. Act.

Prosecution has proved beyond reasonable doubt that, A-1 to A-4 were parties to criminal conspiracy with the object of acquiring and possessing pecuniary resources and assets to the extent of Rs.53,60,49,954.00 beyond the known source of income of A-1. Hence, A-1, A-2, A-3 and A-4 are hereby convicted for the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13 (1) (e) R/w. Sec. 13 (2) of P.C. Act.

Prosecution has proved beyond reasonable doubt that A-2 to A-4 abetted the commission of the above offence by intentionally aiding A-1 in the acquisition and possession of pecuniary resources and properties disproportionate to her known source of income as above. Hence, A-2, A-3 and A-4 are hereby convicted for the offence punishable u/Sec.109 of I.P.C. R/w. Sec. 13 (1) (e) R/w. Sec. 13 (2) of P.C. Act.”

“SENTENCE.

For the offence u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of the P.C. Act, A-1 Selvi. J. Jayalalitha, D/o. Late. Jayaram, is hereby sentenced to undergo simple imprisonment for a period of four years and a fine of Rs.100 crores. In default to pay the fine amount, she shall undergo further imprisonment for one year.

For the offence punishable u/Sec. 120-B I.P.C., R/w. Sec. 13 (2) of P.C. Act, A-1 is sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 1 lakh. In default to pay the fine, she shall undergo further imprisonment for one month.

For the offence punishable u/Secs. 109 of I.P.C., R/w. Sec. 13 (2) of P.C. Act, A-2 Tmt. Sasikala Natarajan, A-3 Tr. V.N. Sudhakaran and A-4 Tmt. J. Eavarasi are sentenced to undergo simple imprisonment for a period of four years each and to pay fine of Rs.10 crores each. In default to pay the fine amount, A-2, A-3 and A-4 shall each undergo further imprisonment for one year.

For the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13 (2) of P.C. Act, A-2, A-3 and A-4 each are sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.10,000/- each. In default to pay the fine amount, A-2, A-3 and A-4 shall each undergo further imprisonment for one month.

Substantive sentences of imprisonment shall run concurrently.

Period of custody already undergone by the accused shall be given set off u/Sec. 428 of Cr.P.C. It is further ordered that, necessary direction shall be issued to the concerned banks to remit the proceeds of the Fixed Deposits and the cash balance standing to the credit of the respective accused in their bank account and the proceeds thereof shall be appropriated and adjusted towards the fine amounts.

If after adjustment, still the fine falls short, the gold and diamond ornaments seized and produced before the Court (after setting apart 7040 grams of gold with proportionate diamond jewellery), as observed in the body of the judgment shall be sold to RBI or SBI or by public auction to make deficit of fine amount good. The rest of the gold and diamond jewellery shall be confiscated to the Government.

All the immovable properties registered in the names of Lex Property Developments Pvt. Ltd., Meadow Agro Farms Pvt. Ltd., Ramaraj Agro Mills Pvt. Ltd., Signora Business Enterprises (P) Ltd., Riverway Agro Products (P) Ltd., and Indo Doha Chemicals and Phramaceuticals Ltd., which are under attachment pursuant to G.O. Nos. M.S. 120 and 1183, shall be confiscated to the State Government.

Out of the fine amount recovered as above, a sum of Rs.5 crores shall be made over to the State of Karnataka towards reimbursement of the cost of trial conducted in the State of Karnataka.

Furnish a free copy of the full judgment to the accused forthwith.

Intimate the Speaker of the Legislative Assembly of the State of Tamil Nadu and his Excellency, the Governor of State of Tamil Nadu, by fax or courier, the conviction and sentence passed against to A-1, followed by formal written communication.”

2.9. That in view of the law laid by the Hon’ble Supreme Court of India in “Lily Thomas” Case and in view of sub-section (3) of section 8 of representation of People Act, 1951 read with Article 191 of the Constitution, Late Selvi J. Jayalitha, a former Chief Minister of State of Tamil Nadu and a former elected member of Srirangam Assembly Constituency of Tamil Nadu State Legislative Assembly was disqualified for being chosen and being a member of Legislative Assembly immediately from the date of her conviction and sentence order dated 27.9.2014.

2.10. That on the direction of this Hon’ble Court to constitute a special court and complete the hearing of criminal appeal filed by Late Selvi J. Jayalalitha & Respondent/V.K. Sasikala etc. etc. against their conviction order within 3 months time, the Chief Justice of Karnataka High Court constituted the Single Judge Bench Special Court to hear the Criminal Appeals filed by Late Selvi J Jayalalitha and Respondent/V.K. Sasikala. The Chief Justice of Karnataka high Court has also appointed Hon’ble Mr. Justice C. Kumarasamy, Ld. Single Judge of the Karnataka High Court at Bangalore as a Special Judge to hear the Criminal Appeals filed by Selvi J. Jayalalitha.

2.11. The Special Judge vide his judgment and order dated 11.5.2015 allowed the Criminal Appeal Nos.835, 836, 837 & 838 of 2014 filed by Late Selvi J. Jayalalitha, Tmt. N. Sasikala Natarajan, Mr. V. N. Sudhakaran & Tmt. J. Elavarasi and set aside the conviction judgment and order dated 27.9.2014 passed by Hon’ble Mr. Justice Michel D. Kunha, Special Judge of Special Court at Bangalore, Court of XXXVI Addl. City Civil and Sessions Judge, Bangalore in Special Case C.C.No.208/2004 and acquitted Selvi J. Jayalalitha, Tmt. N. Sasikala Natarajan, Mr. V. N. Sudhakaran & Tmt. J. Elavarasi from all the charges without hearing the prosecution side effectively.

2.12. Since four year tenure of ruling AIADMK govt. was going to expire on 23.5.2015, in order to request the Election Commission to conduct By Election in the State before the expiry of one year period, and in order to help or favour Late Selvi J. Jayalalitha to contest the Bye Election if any held before one year period, the ruling AIADMK party MLA Mr. P. Vetrivel, from (11) Dr. Radhakrishnan Nagar Assembly Constituency have send his resignation letter to the Speaker of T.N. State Legislative Assembly with political pressure or compulsion on 17^th May, 2015. The Speaker of T.N. Legislative Assembly without any enquiry in regard of voluntary resignation or any compulsion, the Speaker of T.N. Legislative Assembly in a hurry burry manner on the very same day i.e. on Sunday on 17.5.2015 itself accepted the resignation and published the same in the official gazette as well on the very same day i.e. on 17.5.2015.

2.13. The ruling AIADMK party called their all party MLAs meeting on 22.5.2015 and decided Late Selvi J. Jayalalitha to be sworn as Chief Minister of State of Tamil Nadu.

2.14. The acquittal order passed by single judge of Hon’ble High Court of Karnataka was challenge by Karnataka State one third party Mr. Anbazhagan before the Hon’ble Supreme Court of India in S.L.P. (Crl) Nos. 6117-6120 of 2015 & S.L.P. (Crl) Nos. 7107-7122 of 2015. This Hon’ble Court issued notice in the above SLPs and heard the argument on both sides and reserved its judgment in the month of June, 2016.

2.15. The former Chief Minister of Tamil Nadu viz. late Sevli J. Jayalalitha was expired on 5.12.2016.

2.16. That on the very same day of death of Late Selvi J. Jayalalitha i.e. 5.12.2016 late night one O.Panneerselvam sworn in as Chief Minister of Tamil Nadu.

2.17. That due to the death of Late Selvi J. Jayalalitha, the R.K. Nagar Assembly constituency became vacant from the date of its declaration.

2.18. The Petitioner NGO on 28.12.2016 sent a representation to the Respondent/Election Commission of India to Prohibit the convicted to function as Leaders of Political Parties. A true copy of the Representation dated 28.12.2016 sent by the Petitioner NGO to Respondent/ECI is filed as Annexure-P1 - Page

2.19. That on 29.12.2016, the Respondent/V.K. Sasikala elected as General Secretary of ruling AIADMK party.

2.20. That on 5.2.2017, in contrary to law, the ruling AIADMK party MLAs elected Respondent/V.K. Sasikala as a leader of legislative Assembly who is not a elected MLA of Legislative Assembly.

2.21. The former Chief Minister O. Paneerselvam has resigned his post as a Chief Minister of Tamil Nadu on 5.2.2017 and given resignation letter to the Governor of State of Tamil Nadu.

2.22. The Governor of State of Tamil Nadu also accepted the resignation given by the former Chief Minister on 6.2.2017.

2.23. The print and electronic media states that senior counsel for the Karnataka State mentioned before this Hon’ble Court on 6.2.2017 and informed that late Selvi J. Jayalalitha died on 5.12.2016 and they expected early judgment from this Hon’ble Court in the disproportionate assets case of late Selvi J. Jayalalitha and Respondent V.K. Sasikala. In reply, this Hon’ble Court informed that it will deliver judgment within a week probably in the disproportionate assets case of late Selvi J. Jayalalitha and Respondent V.K. Sasikala.

2.24. That this Hon’ble Court by its judgment and order dated 14.2.2017 in Crl.A. Nos. 300-303 of 2017 etc. etc. has reversed the acquittal order passed by the Special Judge Hon’ble Mr. Justice. C. Kumarasamy and restored the conviction and sentence order passed by Special Judge Hon’ble Mr. Justice Michel D. Kunha and held that:-

“Furthermore, the reasoning given by the Trial Court in respect of criminal conspiracy and abetment, after scrutinizing the evidence of this case, is correct in the face of the overwhelming evidence indicating the circumstances of active abetment and conspiracy by A2 to A4 in the commission of the above offences under Section 13(1)(e) of the 1988 Act. This would be evident from the following circumstances:

(i) A1 had executed a General Power of Attorney in favour of A2 in respect of Jaya Publications marked as Ex.P-995. The circumstance of executing the power of attorney in favour of A2 indicates that with a view to keep herself secured from legal complications, A1 executed the said power of attorney knowing fully well that under the said powers, A2 would be dealing with her funds credited to her account in Jaya Publications.

(ii) Constitution of various firms during the check period is another circumstance establishing the conspiracy between the parties. It has come in evidence that 10 firms were constituted on a single day. In addition, A2 and A3 started independent concerns and apart from buying properties, no other business activity was undertaken by them. The circumstances proved in evidence undoubtedly establish that these firms are nothing but extentions of Namadhu MGR and Jaya Publications and they owed their existence to the benevolence of A1 and A2

(iii) The aforesaid firms and companies were operating from the residence of A1 and it cannot be accepted that she was unaware of the same even though she feigned ignorance about the activities carried on by A2 to A4. They were residing with A1 without any blood relation between them.

(iv) Although A2 to A4 claims to have independent sources of income but the fact of constitution of firms and acquisition of large tracts of land out of the funds provided by A1 indicate that, all the accused congregated in the house of A1 neither for social living nor A1 allowed them free accommodation out of humanitarian concern, rather the facts and circumstances proved in evidence undoubtedly point out that A2 to A4 were accommodated in the house of A1 pursuant to the criminal conspiracy hatched by them to hold the assets of A1.

(v) Ex.D.61 reveals that before the Income Tax Authorities, the representative of A1 himself had put forth an argument that Rs.1 crore was advanced by A1 to Sasi Enterprises towards share capital and further it was submitted that on the security of the said amount, loan was borrowed by A1, and thus she cannot claim non-involvement with the firms.

(vi) The flow of money from one account to the other proves that there existed active conspiracy to launder the ill-gotten wealth of A1 for purchasing properties in the names of the firms.

(vii) The conspiracy among the accused persons is also proved by the evidence of Sub-Registrar, North Beach, Sub-Registrar office-PW.159 and the evidence of PW.71 Radha Krishnan, Horticultural officer.

In our opinion, the Trial Court correctly came to the conclusion on such reasoning and we hereby uphold the same.

Accordingly, in view of the reasoning recorded hereinabove in the preceding paragraphs, we set aside the judgment and order of the High Court and affirm and restore the judgment of the Trial Court in toto against A2 to A4.

However, though in the process of scrutiny of the facts and the law involved and the inextricable nexus of A1 with A2 to A4, reference to her role as well as the evidence pertaining to her had been made, she having expired meanwhile, the appeals, so far as those relate to her stand abated. Nevertheless, to reiterate, having regard to the fact that the charge framed against A2 to A4 is proved, the conviction and sentence recorded against them by the Trial Court is restored in full including the consequential directions.

543. Respondents A2 to A4, in view of this determination and the restoration of their conviction and sentence, would surrender before the Trial Court forthwith. The Trial Court is hereby also ordered to take immediate steps to ensure that the respondents A2 to A4 serve out the remainder of sentence awarded them and take further steps in compliance of this judgment, in accordance with law.”

2.25. The Petitioner NGO again sent a detailed representation on 17.3.2017 to the Respondent/Election Commission of India to prohibit Respondent No.4/V.K. Sasikala, a convict to function as a General Secretary of AIADMK – also to prohibit all the convicted who are holding a key officer bearer posts in a recognized or registered state and National political parties all over India. A true copy of the Representation dated 17.3.2017 sent by the Petitioner NGO to Respondent/ECI is filed herein as Annexure-P2 - Page

2.26. Since, the Respondents not taken any steps on the representation, the present PIL Writ Petition is filed.

3. GOVERNMENT AUTHORITY CONCERNED APPROACHED & ITS RESULT:

Since the prayer relief sought in the present petition is for order for writ of quo warranto, declaration and framing of guidelines. Further the writ is for enforcement of fundamental rights and against the constitutional violation, written representation is sent on 28.12.2016 as well as on 17.3.2017 by the Petitioner. Since, the Election Commission of India not considered and taken any steps in the representation sent by the Petitioner, the Petitioner filed this present Writ Petition.

4. DECLARATION:

That the petitioner states that he has not filed any other similar petition filed before this Hon’ble Court or before any other High Court earlier.

5. GROUNDS

The Petitioner seeking relief on the following grounds:-

5.1. Because during the period of 1991 to 1996, when late Selvi J. Jayalalitha was Chief Minister of Tamil Nadu State, the Respondent V.K. Sasikala with the help of former Chief Minister of State of Tamil Nadu late Selvi J. Jayalaitha has committed offences for accumulation of wealth of Rs 66.65 crores, disproportionate to their known sources of income and thus they have been charge-sheeted and convicted for simple imprisonment of 4 years with fine of Rs. 100 Crores for commission of offences under Section 120-B IPC, Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 by the Special Court at Karnataka.

5.2. Because this Hon’ble Court by its judgment and order dated 14.2.2017 passed in Crl.A. Nos. 300-303 of 2017 etc. etc. has confirmed the conviction and sentence order passed by Special Judge Hon’ble Mr. Justice Michel D. Kunha and held that:-

(vi) The flow of money from one account to the other proves that there existed active conspiracy to launder the ill-gotten wealth of A1 for purchasing properties in the names of the firms.

In our opinion, the Trial Court correctly came to the conclusion on such reasoning and we hereby uphold the same.

5.3. Because in view of the law laid down by the Hon’ble Supreme Court of India recently in the case of “Lily Thomas Vs Union of India & Ors.” reported in (2013) 7 SCC 653 that:- “sub section (4) of section 8 of the Representation of the People Act, 1951, is ultra virus and un-constitutional” and thus as per sub-section (3) of section 8 of the Representation of the People Act, 1951, a person including any ordinary person as well a sitting member of Legislative Assembly or being chosen as a member of legislative assembly convicted for any commission of offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

5.4. Because in view of Article 191 of the Constitution of India, a person shall be disqualified for being chosen as, and for being, a Member of the Legislative Assembly or Legislative Council of a state (e) if he or she is disqualified by or under any law made by Parliament.”

5.5. Because the five judges constitutional bench of this Hon’ble Court in the case of “Manoj Narula Vs. Union of India” reported in (2014) 9 SCC 1 para 99, 100 & 101 has held that:-

“99. It is worthy to note that the Council of Ministers has the collective responsibility to sustain the integrity and purity of the constitutional structure. That is why the Prime Minister enjoys a great magnitude of constitutional power. Therefore, the responsibility is more, regard being had to the instillation of trust, a constitutional one. It is also expected that the prime Minister should act in the interest of the national polity of the nation-state. He has to bear in mind that unwarranted elements or person who are facign charge in certain category of offences may thwart or hinder the canons of constitutional morality or principles of good governance and eventually diminish the constitutional trust. We have already held that prohibition cannot be brought in within the province of “advice” but indubitably, the concepts, especially the constitutional trust, can be allowed to be perceived in the act of such advice.

100. Thus, while interpreting Article 75 (1), definitely a disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to he wisdom of the Prime Minister. We say nothing more, nothing less.

101. At this stage, we must hasten to add what we have said for the Prime Minister is wholly applicable to the Chief Minister, regard being had to the language employed in Article 164 (1) of the Constitution of India.”

5.6. Because the authorized person or General Secretary or President of a recognized political party has to signed the A & B form in the election nomination of a candidate who is contesting election on the ticket of recognized political party. If such authorized person or General Secretary or President of a recognized political party is convicted and disqualified from being chosen and being a member of Legislative Assembly u/s. 8 (3) of Representation of People Act read with Article 191 Constitution of India, being selecting or electing a candidate of recognized political party violates the mandates and objects of disqualification as the said action is a colorable exercise or action which is impressible in the eyes of law.

5.7. Because in the present case, Respondent No4/Smt. Sasikala although confined in jail, disqualified from being chosen and being a member of Legislative Assembly u/s. 8 (3) of Representation of People Act read with Article 191 Constitution of India, but her continuation or action as a General Secretary of a ruling State recognized party and nominating a Deputy General Secretary of a AIADMK party further her action in selecting candidate in the R.K. Nagar bye Election which is scheduled on April, 12, 2017 is total violation of mandates and objects of disqualification as the action of R4/Smt. Sasikala is a colorable exercise or action which is impressible in the eyes of law.

5.8. Because, although, the Representation of People Act, 1951 and Indian Constitution does not specifically prohibit the convicted person to hold a key political post like President or General Secretary of a Registered and Recognized State and National Political party, finding rendered by this Hon’ble Court in the above cases (supra) can be extended to the present case where the convicted person from holding a key political post like President or General Secretary of a Registered and Recognized State and National Political party, as in the absence of specific provision, in order to provide justice and fundamental rights of free and fair election and corrupt free governance, this Hon’ble Court may declare the convicted person or a person disqualified from being chosen and being a member of Legislative Assembly u/s. 8 (3) of Representation of People Act read with Article 191 Constitution of India is also disqualified from holding a key political post like President or General Secretary of a Registered and Recognized State and National Political party; consequently declare Respondent No.4/Smt. V.K. Sasikala is disqualified from holding General Secretary post of AIADMK, a state recognized political party.

5.9. Because taking advantage of loop holes and absence of specific provision, the corrupt and convicted people capture the power in politics governance.

5.10. Because after prolong delay of more than 18 years, on an appreciation of entire evidence & exhibits Hon’ble Mr. Justice Michel D. Kunha, Special Judge of Special Court at Bangalore, Court of XXXVI Addl. City Civil and Sessions Judge, Bangalore in Special Case C.C.No.208/2004 by his judgment and order dated 27.9.2014 convicted Respondent/V.K. Sasikala and sentenced her to simple imprisonment for four years and fine of Rs. 100 Crore under section 13(2) & 13(1)(e) of prevention of Corruption Act read with section 120B IPC and the respondent her co-convicts were taken into jail.

5.11. Because the absence of specific provision in with regard to the selecting a convicted and disqualified person from holding a political posts in the recognized political parties, violates the fundamental rights of free and fair and election as well as corrupt free governance as the ruling and opposition recognized political parties bosses alone controlling the entire election or selection of their party candidates process and after winning the election their political bosses only dictating the election members of the Legislative assembly and parliament.

5.12. Because in view of the law laid down by the Hon’ble Supreme Court of India recently in the case of “Lily Thomas Vs Union of India & Ors.” reported in (2013) 7 SCC 653 that:- “sub section (4) of section 8 of the Representation of the People Act, 1951, is ultra virus and un-constitutional” and thus as per sub-section (3) of section 8 of the Representation of the People Act, 1951, a person including any ordinary person as well a sitting member of Legislative Assembly or being chosen as a member of legislative assembly convicted for any commission of offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. At least for the disqualified period, this Hon’ble Court may apply the above said Lilly Thomas judgment in the cases of convicted and disqualified person from holding political posts.

5.13. Because this Hon’ble Court by its order dated 2^nd May, 2002 in Civil Appeal No.7178 of 2001 in the case of “Union of India v Association for Democratic reforms and another” reported in (2002) 5 SCC 294 has held that: -

“The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Art 324 of the Constitution of India from each candidate seeking election to Parliament or a state legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature: - (1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past-if any, whether he is punished with imprisonment or fine?

(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.

(3) The assets (immovable, movable, bank balances etc) of a candidate and of his/her spouse and that of dependants.

(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues.

(5) The educational qualifications of the candidate.”

5.14. Because the law of the land mandates to fulfill certain qualification and necessary information in the nomination before conducting election either to the State Assembly or to parliament. But there is no provision to prohibit the convicted and disqualified person from holding political posts of the registered and recognized political parties which is total violation of Rights of Equality and Free and Fair Election guaranteed under our Constitution under part-III, Article 14, 19 & 21.

5.15. It is submitted that the Petitioner may be permitted to raise any additional legal grounds if required at the time of argument in order to convince this Hon’ble Court about the merit of the case, Maintainability and including the locus standi.

6. NATURE AND EXTENT OF PERSONAL INTEREST, IF ANY, OF THE PETITIONER:

The Petitioner is a NGO fighting against corruption and thus the petitioner has no personal interest over this present PIL Writ Petition against the Respondent/State Authority as well the Respondent/V.K. Sasikala.

In the present case, there is no political allegation or charges leveled against any respondents. The illegal occupation or authority of holding office of Chief Minister as well the arbitrary exercise of Respondents authorities as CM of State of T.N. is challenged.

As per the settled law, every citizen is an aggrieved person against the illegal holding of the office as well as the arbitrary exercise of State as defined by our Constitution.

7. DETAILS OF LEGAL NEXUS OF PETITIONER WITH PRESENT PIL:

The Petitioner has not involved in any civil, criminal or revenue litigation in legal nexus with the issue(s) involved in the Public Interest Litigation:

8. AFFIDAVIT OF NO PERSONAL GAIN OR MOTIVE:

The Petitioner has filed an affidavit stating that there is no personal gain, private motive or oblique reason in filing the Public Interest Litigation with this petition.

9. COURT MAY IMPOSE EXEMPLARY COSTS IF ANY:

The issue involved in the present WP is a purely a legal issues and it is filed in the larger public interest. The Court may impose exemplary costs on the petitioner(s) if it finds that the petition was frivolous or instituted with oblique or mala fide motive or lacks bona fides.

PRAYER:

In view of the facts and circumstances of the case, it is most respectfully prayed that this Hon'ble Court may be in an appropriate writ of mandamus direction or any other writ be pleased to:

a) Declare any person convicted and disqualified for being chosen and being a member of Legislative Assembly u/s. 8 (3) of Representation of People Act, 1951 read with Article 191 of Constitution is also disqualified a key political post like President or General Secretary of a Registered and Recognized State and National Political party; and

b) Declare Respondent No.4/Smt. V.K. Sasikala is disqualified from holding General Secretary post of AIADMK, a ruling, state recognized political party as she has been convicted and disqualified u/s. 8 (3) of Representation of People Act, 1951 read with Article 191 of Constitution; and

c) Direct the Respondent/Election Commission of India to reject the nomination & Form A & B if any submitted by any candidate on the recommendation signature by 4^th Respondent/V.K. Sasikala or her nominated person for the R.K. Nagar Bye Election scheduled on 12^th April, 2017; and

d) Pass such other and further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONERS AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN BY FILED BY

G.S. MANI R. SATHISH,

Advocate Advocate for Petitioner

Place: New Delhi

Filed On: 21.3.2017

Court Documents of Satta Panchayat Iyakkam

Tuesday 21 March 2017

Supreme Court Affidavit Reg Convicted Holding Party Leader Posts - Mar 21,2017