- Apprentice Lawyer
Political matters should be fought outside courtroom and it not advisable to make courtroom a battlefield to settle political scores, the Madras High Court opined on Monday (M Appavu v. Chief Secretary to the Government of Tamil Nadu and ors).
The Court was prompted to pose an open query over bringing political battles to the courtroom while hearing a PIL challenging a Tamil Nadu Government Order (GO) concerning the grant of prior sanction to prosecute Ministers on allegations of corruption
A Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy was hearing a petition moved by DMK member and ex-MLA M Appavu against a 2018 GO which required the forwarding of corruption complaints against State Ministers to the Secretary to Government, Public (SC) Department for prior approval.
“Why do you bring your political matters in the courtroom? Fight it out in the political field, why bring it to the courtroom?” Chief Justice Banerjee orally observed as arguments progressed.
Commenting on the broader state of affairs, he added,
"When you are in power, the other side says you are corrupt; when they are in power you will allege corruption."
Among other submissions made in response, the petitioner's counsel also underscored the role of opposition parties to be vigilant in such matters. The High Court, in turn, issued notice in the matter and posted it to be taken up after six weeks' time.
Appavu and other DMK members have made allegations of "large scale corruption" by Tamil Nadu's Chief Minister and members of the ruling AIADMK party, some of which has also reached the Madras High Court.
Appavu's petition notes that two complaints made against the Chief Minister and two other Ministers this year have been forwarded by the Directorate of Vigilance and Anti-Corruption (DVAC) to the Principal Secretary to Government Public (SC) Department, in terms of the 2018 GO i.e. GO (Ms) No. 173.
This requirement for referring the complaints of corruption against Ministers to the Public Secretary in terms of clause 4 (v) of the 2018 GO has been challenged, inter alia, on grounds that:
Clause 4(v) of the GO makes the accused themselves to be the judges of their own cause. If the decision to grant or not grant prior approval to the DVAC for proceeding with the complaint against a Minister is left to the Principal Secretary of the Public Department and made subject to the approval of the cabinet, the same would be illegal since the cabinet's members themselves are accused of the offences.
A Principal Secretary Public (SC) Department cannot be considered as a person competent to remove a Chief Minister or a Minister from his office. Hence he cannot be the competent authority for grant of prior approval. This is because Section 17A of the Prevention of Corruption Act, in line with which the GO was introduced, provides that such approval to prosecute should come from "the authority competent to remove him from his office, at the time when the offence was alleged to have been committed."
The Chief Minister and Ministers are removable from the office only by the Governor. Hence, as per Section 17A of the Prevention of Corruption Act, the previous approval should be taken from the Governor and from no other authority.
There are circumstances when the Governor, in granting sanction to prosecute a minister, must act in his own discretion and not on the advice of the Council of Ministers. The prosecution of the Chief Minister or a Minister is one such circumstance where, as a matter of propriety, the Government must necessarily act in his own discretion and not on the advice of the Council of Ministers. Similar would be the situation if the Council of Ministers disables itself or disentitles itself.
"... GO (Ms) No. 173 as for as it relates to the public servants other than Group A, B, C, D and All India service, and who are governed under paragraph 4 (v) of the GOs (Public servants who are elected such as Ministers and the Chief Minister) is illegal, Unconstitutional and liable to be struck down", reads the petition.
The petition urges the Court to strike down Clause 4(v) of the 2018 GO as unconstitutional. An interim prayers is also made for directions so that a complaint made by Appavu last July is forwarded to the Governor of Tamil Nadu for sanction to prosecute.