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செந்தில் பாலாஜி பதவியை பறிக்க கோரி ஜெயகுமார் மகன் வழக்கு.    filed by adv jegan AFFIDAVIT OF Dr. J. JAYAVARDHAN I, Dr. J. Jayavardhan, S/o. Mr. D. Jayakumar, a

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BEFORE THE HON’BLE HIGH COURT OF JUDICATURE AT MADRAS

(SPECIAL ORIGINAL JURISDICTION)

 

W.P.                    OF 2023

 

  Dr. J. Jayavardhan

S/o. Mr. D. Jayakumar

Aged about 36 years

Residing at No. 10, South Leith Castle Street, Santhome,

Chennai – 600028.

 

  

 

 

 

 

…Petitioner
-VS-
1. Principal Secretary,

Governor of Tamil Nadu,

Raj Bhavan,

Chennai

 

  
2. State of Tamil Nadu,

Chief Secretary,

Government of Tamil Nadu,

St. George’s Fort,

Chennai

 

  
3. Principal Secretary,

Tamil Nadu Legislative Assembly,

Tamil Nadu Legislature Secretariat,

St. George’s Fort

Chennai

 

  
4. Principal Secretary,

Public Department,

Government of Tamil Nadu,

St. George’s Fort,

Chennai

 

  
5. Mr. Senthil Balaji,

Member of Legislative Assembly,

S/o. P. Velusamy

Aged about 47 years

Residing at 123/92 Rameswarapatti,

Manmangalam Post,

Manmangalam Taluk,

Karur-639 006

 

  

 

 

 

 

 

 

…Respondents

 

 

 

 

AFFIDAVIT OF Dr. J. JAYAVARDHAN

 

I, Dr. J. Jayavardhan, S/o. Mr. D. Jayakumar, aged about 36 years, residing at No. 10, South Leith Castle Street, Santhome, Chennai – 600028, do solemnly affirm and sincerely state on oath as follows:

 

  1. I state that I am the Petitioner in captioned writ petition. I state that I am well acquainted with the facts and circumstances pertaining to the writ petition based on my personal knowledge and on knowledge available in public domain. I state that I am competent to depose this Affidavit.

 

  1. I state that I am preferring the captioned Writ Petition invoking the jurisdiction of this Hon’ble Court under Article 226 of the Constitution of India seeking inter alia, a writ of QUO-WARRANTO directed against the 5th Respondent requiring him to show cause by what authority he retains the Constitutional post of Minister of the State of Tamil Nadu.

 

  1. I state that I am a member of the All India Anna Dravida Munnetra Kazhagam and a Joint Secretary, Amma Peravai. I state that I have served as a Member of Parliament, Lok Sabha between 2014 – 2019, from the Chennai (South) constituency. I state that I am a Doctor by education. I state that I am a tax paying citizen contributing to the economy of the Government of India and State of Tamil Nadu.

 

  1. I state that the Ministers of the State are renumerated from the taxpayers money. I state that they draw their allowances and other benefits out of the Public funds. Hence, the captioned writ petition filed is not with vested interest but for society at large. I state that the extraordinary never before scenario is the cause of the present quo-warranto calling upon the 5th Respondent for his continuation as a Minister without any portfolio for the State of Tamil Nadu.

 

  1. I state that pursuant to the general elections to the 16th Legislative Assembly for the State of Tamil Nadu, the Dravida Munnetra Kazhagam (‘DMK‘) having sufficient elected members to form a government, staked claim to form the Government of Tamil Nadu before His Excellency, the Governor of Tamil Nadu, wherein on 07.05.2021, Mr. M. K. Stalin took oath as the Chief Minister of the State of Tamil Nadu along with a Council of Ministers. I state that the 5th Respondent, an elected member to the Legislative Assembly, was also sworn in as the member of the Cabinet. I state that the 5th Respondent was allotted portfolios and held the position as Minister for Electricity, and Minister for Prohibition & Excise. I state that the 5th Respondent held his position under the pleasure of the His Excellency the Governor of State of Tamil Nadu traceable to Article 164 of the Constitution of India.

 

  1. I state that the 5th Respondent has multitude of criminal cases pending against him, at different stages. I state that one among those cases involves his moral turpitude which directly relates to good governance involving the 5th Respondent having received bribe for allocating government jobs to various qualified and unqualified people in the transport department. It is pertinent to note that the 5th Respondent was during the time of cause of action serving as the Minister of Transport department. As a matter of fact, the 5th Respondent was also removed as the Minister of Transport by the then Chief Minister Late Selvi Dr. J. Jayalalitha, around this time, pursuant to the aforesaid allegations.

 

  1. I state that the Hon’ble Supreme Court of India in the case of Balaji vs. Karthik Desari & Anr. vide order dated 16.05.2023 passed in SLP(Crl.) Nos. 12779-12781 of 2022 and other connected cases inter alia, permitted the investigation agency to proceed with further investigation in all cases against 5th Respondent and to further investigate the offence under the Prevention of Corruption Act which in the opinion of the Hon’ble Apex Court was prima facie made out. I state that further the Hon’ble Apex Court directed the said investigation to be completed within a period of two (2) months from then, by the respective agencies and permitted the continuation of proceedings under Prevention of Money laundering Act, 2002, by the Enforcement Directorate.

 

  1. I further state that I reliably understand that the State Government is acting with impunity by not constituting a special team as obitered by the Apex Court and to complete investigation within a period of two (2) months. Suffice it to say the 5th Respondent, as a Minister, is in a position to influence the Police and hinder the investigation, even against the judgment of the Hon’ble Supreme Court of India.

 

  1. I state that while things stood thus, it is matters of public knowledge that the Enforcement Directorate continued its investigation into the allegations against the 5th Respondent and on 13.06.2023 searches were conducted at offices and premises operated by the 5th Respondent. I state that the 5th Respondent was called for investigation by the Enforcement Directorate, and was understood from various publications that the 5th Respondent did not cooperate with the Enforcement Directorate during the investigation.

 

  1. I state that, from the information available in the public domain, it is seen that the 5th Respondent was arrested by the Enforcement Directorate. I state that thereafter it is believed that the 5th Respondent claimed uneasiness and got himself admitted to the Tamil Nadu Government Multi Super Speciality Hospital, Omandurar Estate, Chennai, apparently for cardiac ailment.

 

  1. I state that thereafter the wife of the 5th Respondent moved an Habeas Corpus Petition vide 1021 of 2023 before this Hon’ble Court and this Hon’ble Court vide its Order dated 15.06.2023, denied interim bail to the 5th Respondent and permitted him to be admitted to a private hospital of his choice. I state the 5th Respondent is presently under treatment at a private hospital in Chennai.

 

  1. I state that as things stood thus, the Chief Minister of State of Tamil Nadu, Mr. M.K. Stalin, had corresponded with His Excellency the Governor of Tamil Nadu, and sought for reallocation of portfolios of his Ministers wherein the subject of “Electricity, Non-Conventional Energy Development” that was managed by the 5th Respondent be allocated to Mr. Thangam Thennarasu, and subject of “Prohibition and Excise, Molasses” that was managed by the 5th Respondent be allocated to Mr. S. Muthusamy.

 

  1. I state that the reallocation of the portfolios was recommended by the Chief Minister solely on the ground that the 5th Respondent has been arrested and hospitalized and therefore, incapable of performing his constitutional duties to the people of the State of Tamil Nadu and his functioning would be criminalization of politics. His Excellency Governor of the State of Tamil Nadu while considering on the recommendation of the Chief Minister, reallocated the portfolios to the respective Ministers indicated thereunder. However, His Excellency the Governor of the State of Tamil Nadu has categorically refused to permit the continuation of the 5th Respondent as part of the Council of Ministers sans any portfolio. I state that the Press Release No. 34, dated 16.06.2023 issued by the Raj Bhavan, Chennai, categorically states as following:

“However, the Hon’ble Governor has not agreed Thiru V. Senthil Balaji continuing as longer as a Member of the Council of Ministers, as he is facing criminal proceedings for moral turpitude and is currently in Judicial Custody.”

 

  1. I state that His Excellency Governor of State of Tamil Nadu, in consonance with the of his powers under Article 164 (1) of the Constitution of India, has thus derecognized the 5th Respondent from the Council of Ministers, categorically indicating that he no longer holds his post during the pleasure of the Governor of the state. I state that it is also understood from the language of the Press Release that the 5th Respondent can no longer be considered a part of the Council of Ministers. It is also pertinent to note that, being incarcerated, the 5th Respondent would also not be in a position to advise or aid the Chief Minister, in his service to the public and governance. In any event, such functioning of an incarcerated individual in a constitutional post would be an affront to the rule of law and the principles underlying the Constitution. I state that in view of the foregoing, it is plainly evident that the 5th Respondent ceased to exist as a Minister from the date of the aforesaid orders passed by His Excellency Governor of State of Tamil Nadu.

 

  1. I state that the 5th Respondent would also morally not be in a position to work as a minister. The other angle to his issue is the protection, respect, and dignity of office of the Minister of a State. A Minister is a person who commands protocol in everyday life and he has many allowances and incentives more than a common man which is borne by the State Exchequer. The 5th Respondent having been remanded to judicial custody should not be permitted to partake such privileges.

 

  1. I state that to everyone’s shock and surprise, the Director, Public Relations, issued a Press Release dated 16.06.2023 that the 5th Respondent has been retained as a Council of Minister (Minister without Portfolio). I state that the website of the Government of Tamil Nadu indicates that the 5th Respondent is continuing as the Minister in the State of Tamil Nadu.

 

  1. I state that under Article 164(1) of the Constitution of India, only the Governor has the powers to appoint any person as the Council of Ministers in the State. I state that when His Excellency the Governor of State of Tamil Nadu has clearly ordered & proclaimed that the 5th Respondent no longer continues as a minister, the 5th Respondent has de jure ceased to be a part of the Council of Ministers. This is moreso stated as the Press Release of the His Excellency the Governor has attained finality as the same has not been challenged before any Court of Law, even assuming without admitting that such challenge is tenable.

 

  1. I state that the continuation of the 5th Respondent as part of the Council of Minister is ultra vires to Article 164 (1) of the Constitution of India, and is against the scheme of Constitution. I state that, therefore, the 5th Respondent is holding the post of Minister in the State of Tamil Nadu, without any authority and is usurping to the said post against the mandate of the Constitution of India.

 

  1. I state that the captioned Writ Petition is being filed on the following amongst other grounds, which are being urged without prejudice to each other. I crave the leave of this Hon’ble Court to raise additional grounds as may be available to me at a later stage, including at the time of arguments.

 

GROUNDS

 

  1. That the 5th Respondent is seeking to hold the post of Minister (Without Portfolio) illegally and against the scheme of Constitution, especially the basic structure of the Constitution of India.

 

  1. That the Hon’ble Supreme Court of India in the case of Karunanidhi vs. Union of India (1979) 3 SCC 431 has held that, “a Minister is appointed or dismissed by the Governor and is, therefore, subordinate to him whatever be the nature and status of his Constitutional functions.” That, as is evident from the above factual narration, the 5th Respondent has been dismissed as a Minister and thus cannot continue to hold any post as Minister (without portfolio). Such continuation is a textbook case of usurping the post illegally.

 

  1. That the 5th Respondent seeks to hold on to the post of Minister without any legal authority and as an usurper. That the Council of Ministers and each individual Minister is appointed under Article 164(1) of the Constitution of India by the Governor, and holds office during his pleasure. That the Governor is the appointing and dismissing authority, and any continuation as minister contrary to the Article 164(1) of the Constitution of India, is invalid and as such the continuation of the 5th Respondent as a Minister is illegal and unconstitutional.

 

  1. That the continuance of the 5th Respondent as a Minister, despite the Governor’s direction against such continuance is contrary to the settled and lauded doctrines of Constitutional Morality, Good Governance and Constitutional trust. It is pertinent to state that the Governor’s order is not subject to any challenge and has attained finality.

 

  1. That the Hon’ble Supreme Court of India in Manoj Narula v. Union of India (2014) 9 SCC 1 has held as follows:

“75… The democratic values survive and become successful where the people at large and the persons in charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality.”

 

Evidently, the continuance of the 5th Respondent as a Minister militates directly against the tenets of constitutionally morality.

 

  1. That the Hon’ble Supreme Court of India in Abdul Farook v. Municipal Council, Perambalur (2009) 15 SCC 351 has held as under:

 

“The doctrine of good governance requires the Government to rise above their political interest and act only in the public interest and for the welfare of its people.”

 

That the Chief Minister’s advice/support for the continuance of the __ Respondent as Minister runs contrary to the principles of good governance.

 

  1. That the Hon’ble Supreme Court of India in Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh (2001) 3 SCC 594, the Hon’ble Apex Court has recognized the valuable principles of good governance as follows:

“14… Clean, efficient and benevolent administration are the essential features of good governance which in turn depends upon persons of competency and good character.”

That, in any event, the competence and good character of the 5th Respondent to continue as Minister having fallen to scrutiny, the Doctrine of Good Governance demands that the 5th Respondent does not continue as a Minister and as such, does not have any authority to continue as a Minister. The continuation of the 5th Respondent would amount to criminalization of politics wherein every official decision taken would have to be certified by the Prison Authorities leading to the exposure of confidential state information and file notings of the Government and this will be contrary to the administered oath which would in itself serve as the disqualification from holding the position.

 

  1. That the Hon’ble Supreme Court of India in Manoj Narula, while elaborating on the principles of good governance, has observed as follows:

“82. In a democracy, the citizens legitimately expect that the Government of the day would treat the public interest as the primary one and any other interest secondary. The maxim salus populi suprema lex, has not only to be kept in view but also has to be revered. The faith of the people is embedded in the root of the idea of good governance which means reverence for citizenry rights, respect for fundamental rights and statutory rights in any governmental action, deference for unwritten constitutional values, veneration for institutional integrity, and inculcation of accountability to the collective at large. It also conveys that the decisions are taken by the decision-making authority with solemn sincerity and policies are framed keeping in view the welfare of the people, and including all in a homogenous compartment. The concept of good governance is not a Utopian conception or an abstraction. It has been the demand of the polity wherever democracy is nourished. The growth of democracy is dependent upon good governance in reality and aspiration of the people basically is that the administration is carried out by people with responsibility with service orientation.”

 

  1. That the Hon’ble Supreme Court of India in Manoj Narula, while expanding the scope of doctrine of constitutional trust vis-à-vis Ministers, recorded as follows:

 

“89. In Constitutional and Administrative Law (2nd Edn., 368-370, David Polland, Neil Parpworth David Hughs), the learned authors while dealing with individual responsibility of Ministers, have said:

          “3. The individual responsibility of Ministers

          The individual responsibility of ministers illustrates further Prof. Munro’s continuum theory. Ministers are individually accountable for their own private conduct, the general running of their departments and acts done, or omitted to be done, by their civil servants; responsibility in the first two cases is clearer than in others. A minister involved in sexual or financial scandals particularly those having implications for national security, is likely to have to resign because his activities will so attract the attention of the press that he will be no longer able to carry out departmental duties.”

 

  1. That although there is no additional qualification prescribed under Article 164(1) of the Constitution of India, the eligibility of a person to continue as a Minister, however, can be elicited from the term “advice” of the Chief Minister to the Governor, which advice (i.e., nature of eligibility) is founded on the faith and duties reposed on the Chief Minister. Accordingly, it axiomatically follows that the advice of the Chief Minister has to necessary meet the thresholds set therefor (under the doctrine of constitutional morality, good governance and constitutional trust), under the Constitution of India. That in view of the “advice”, if any or if at all, of the Chief Minister recommending the continuance of the 5th Respondent as Minister directly violates these thresholds set under the constitution and the same has thus been rightly rejected by the Hon’ble Governor. Consequently, the 5th Respondent does not have any authority under law or otherwise, to continue as Minister, more so despite the Governor’s order to the contrary.

 

  1. That the Hon’ble Supreme Court of India in Manoj Narula, while discussing the scope of “advice” under Article 75 (1) of the Constitution of India, has opined as under:

 

“96. The repose of faith in the Prime Minister by the entire nation under the Constitution has expectations of good governance which is carried on by Ministers of his choice. It is also expected that the persons who are chosen as Ministers do not have criminal antecedents, especially facing trial in respect of serious or heinous criminal offences or offences pertaining to corruption. There can be no dispute over the proposition that unless a person is convicted, he is presumed to be innocent but the presumption of innocence in criminal jurisprudence is something altogether different, and not to be considered for being chosen as a Minister to the Council of Ministers because framing of charge in a criminal case is totally another thing. Framing of charge in a trial has its own significance and consequence. Setting the criminal law into motion by lodging of an FIR or charge sheet being filed by the investigating agency is in the sphere of investigation. Framing of charge is a judicial act by an experienced judicial mind. As the Debates in the Constituent Assembly would show, after due deliberation, they thought it appropriate to leave it to the wisdom of the Prime Minister because of the intrinsic faith in the Prime Minister. At the time of framing of the Constitution, the debate pertained to conviction. With the change of time, the entire complexion in the political arena as well as in other areas has changed. This Court, on number of occasions, as pointed out hereinbefore, has taken note of the prevalence and continuous growth of criminalization in politics and the entrenchment of corruption at many a level. In a democracy, the people never intend to be governed by persons who have criminal antecedents. This is not merely a hope and aspiration of citizenry but the idea is also engrained in apposite executive governance”.

 

  1. That further, the Hon’ble Supreme Court of India in Manoj Narula has underscored the importance of the Prime Minister’s office as the repository of constitutional trust, in the following:

 

“98. From the aforesaid, it becomes graphically vivid that the Prime Minister has been regarded as the repository of constitutional trust. The use of the words “on the advice of the Prime Minister” cannot be allowed to operate in a vacuum to lose their significance. There can be no scintilla of doubt that the Prime Minister’s advice is binding on the President for the appointment of a person as a Minister to the Council of Ministers unless the said person is disqualified under the Constitution to contest the election or under the 1951 Act, as has been held in B.R. Kapur’s case. That is in the realm of disqualification. But, a pregnant one, the trust reposed in a high constitutional functionary like the Prime Minister under the Constitution does not end there. That the Prime Minister would be giving apposite advice to the President is a legitimate constitutional expectation, for it is a paramount constitutional concern. In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance.”

 

  1. Pertinently, the Hon’ble Supreme Court in Paragraph 101 of Manoj Narula has held that what was 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. Accordingly, the usurpation of the 5th Respondent of the post of Minister in view of the foregoing is wholly illegal, unconstitutional and without authority.

 

  1. That where the Governor has decided against the continuance of a Minister i.e., the 5th Respondent, such person ceases to be a Minister under the Doctrine of Pleasure, and the Governor’s order amounts to dismissal of the said person from the Council of Ministers. The ruling party realizing and understanding that vide the communication dated 16.06.2023 that the 5th Respondent ceases to be a Minister has caused the issuance of a communication around the same time which in itself confirms that the Governor has not permitted the 5th Respondent to continue as a Minister. The conduct of the state Government and its said communications are clearly non est in law in view of the categorical orders/directions issued by the Hon’ble Governor, who heads the state government.

 

  1. That, in any event, even assuming without admitting that the Chief Minister were to so further insist that the person in question is to be a Minister, that person would have to be administered fresh oath of office to be part of the Council of Ministers. This would again become the question of the eligibility under Doctrine of Good Governance for the person to be administered oath, as within the parameters laid by the Apex Court in Manoj Narula.

 

  1. That where the continuance of a person as Minister has been rejected by the Governor, there is no legal justification or basis for the person to continue as Minister on the basis of a Government Order and thereby take undue and illegal advantage of the public fund, wherefrom the salary and emoluments to the Minister are being released. That the taxpayer is put to a needless burden for making payment to a person who has been removed from the post and, in any event, is not in a fit state to execute and aid the Chief Minister or perform any duty as a public servant due to a judicial order of remand as per which he has been incarcerated.

 

  1. That one could also reasonably estimate the protection and pressure put on public servants and bureaucrats to serve / take action under an incarcerated person. That it is most important that the predicate offences qua the 5th Respondent is being investigated by various police officers of the State which completely falls under the domain of Chief Minister. That the 5th Respondent post arrest was admitted in a hospital and it was relayed in every public television channel the importance given to the 5th Respondent with the Council of Ministers, Chief Minister, and other Senior Bureaucrats making beeline to visit him. This would have a direct implication on any person who is working under these Ministers and the Chief Minister, preventing such officials from making an unbiased and impartial investigation. Any potential witnesses or whistle-blowers would also undoubtedly be intimidated by such a blatant show of strength and influence. The abusive display of power for the 5th Respondent occurred for the sole reason that the 5th Respondent was a part of the Council of Ministers. To ensure compliance of Articles 20 & 21 of the Constitution of India is a duty of the Governor of the State. His Excellency the Governor, duly noting this, duty has derecognized the 5th Respondent as a Minister.

 

  1. That where the appointment of a person as a Minister has lapsed upon the orders of the Governor, it is bereft of authority or legal basis to allow such person to claim any benefits that may be available to a Minister.

 

  1. That allowing a person to continue as a Minister who is currently in judicial custody following investigation by Enforcement Directorate; despite the rejection of such continuance by the Governor, does not serve any valid public purpose and for this reason alone, the 5th Respondent cannot be allowed to continue as a Minister.

 

 

  1. That where a public servant automatically gets suspended upon being arrested under applicable service Rules, it would be wholly unjustified and contrary to the Doctrine of Constitutional Trust to allow the continuance of a person as Minister, who is under judicial custody.

 

  1. That the continuance of a person, who is under judicial custody, as a Minister, erodes the confidence of the public over the constitutional institutions and therefore, causes entails serious repercussions for public faith.

 

  1. Suffice it would be to state that sanction under the Prevention of Corruption Act and under Section 197 of Cr.P.C. would be required to commence trial qua the 5th That the Hon’ble Apex Court has specifically fixed a time frame to commence investigation. That it is most respectfully submitted that with the 5th Respondent continuing to act as a Minister there may not be a free and fair investigation and there would be a clear exercise of influence over the sanction procedure. That most importantly the whole process would be against natural justice. For this purpose also the continuation of the 5th Respondent as a Minister would not be legally justified.

 

  1. The Petitioner reserves his liberty to raise additional grounds at the stage of hearing.

 

 

I state that I have not preferred any other Petition seeking similar reliefs before this Hon’ble Court or any other Court.

 

It is therefore most humbly prayed that this Hon’ble Court may be pleased to forbear the 5th Respondent from exercising any rights, powers or performing any duties as a member of the Council of Ministers until the disposal of the captioned Writ Petition, and pass such further or other order as this Hon’ble Court deems fit in the facts and circumstances of the case, and thus render justice.

 

It is therefore most humbly prayed that this Hon’ble Court may be pleased to forbear the 1st to 4th Respondents from according any benefits and privileges available to a member of Council of Ministers to the 5th Respondent, until the disposal of the captioned Writ Petition, and pass such further or other order as this Hon’ble Court deems fit in the facts and circumstances of the case, and thus render justice.

 

It is therefore most humbly prayed that this Hon’ble Court may be pleased to issue a Writ of QUO-WARRANTO or any other appropriate Writ or order or Direction in the nature of a Writ directed against the 5th Respondent requiring him to show cause by what authority he retains the Constitutional post of Minister of the State of Tamil Nadu, and pass such further or other order as this Hon’ble Court deems fit in the facts and circumstances of the case, and thus render justice.

 

Solemnly affirmed at Chennai on this                   )

the _____ day of June 2023 and signed                  )

his name in my presence.                                 )

 

DEPONENT

 

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