The Madras High Court has expressed anguish over the “complete loss of independent functioning by the Executive” at the hands of DMK. The court held that there was no reason to conduct another preliminary enquiry against the former Chief Minister Edappadi K Palaniswami into an alleged State highway tender scam as the earlier report dated August 28, 2018, did not suffer from any unreasonableness or illegalities.
Justice Anand Venkatesh, the court’s single judge, observed that the Tamil Nadu government had ordered a fresh enquiry into the former CM only due to a change in the political party in power. “Further, there is no reason for conducting another preliminary inquiry afresh as was ordered by the Government. In the considered view of this Court, such a direction has been given only due to the change in the political party that has come into power,” the court held.
Earlier, the Madras High Court had allowed former DMK MP RS Bharathi’s plea seeking an investigation into former CM Palaniswami and directed the Directorate of Vigilance and Anti-Corruption (DVAC) handover the investigation to the Central Bureau of Investigation (CBI). The former CM and DVAC moved separate appeals before the Supreme Court, wherein the top court directed the High Court to consider the matter afresh. The top court further noted that the High Court did not even peruse the preliminary report submitted by DVAC or impleaded Palaniswami in the case before transferring the investigation to CBI.
Thus, the Madras High Court reconsidered the case. On perusing the report, the court found that the allegations against former CM Palaniswami were dealt with. Based on materials, the officer concluded that there was insufficient evidence to substantiate allegations against him. The officer also concluded that there was no favouritism or abuse of public office by the former CM.
The court noted that the Director of Vigilance and Anti-Corruption had accepted the preliminary report. The DMK-led Tamil Nadu government ordered a fresh preliminary enquiry without assigning reasons. The court held that this was due to a change in political party.
“Without any change in the circumstances, except for the change in the government during the year 2021, the Government cannot now direct for a preliminary inquiry afresh by disregarding the earlier report, which was, in fact, accepted by the first respondent and the then Government. In the eye of law, there is only one State Government and it is immaterial as to which political party takes over the power. Therefore, for all purposes, a decision taken by the Government should stand and it cannot be reversed without any valid reasons, especially for a change in guard,” the Madras High Court said.
The court said that the elected government should not change its stance unless the predecessor’s actions were unreasonable, contrary to statutory provisions or against the public interest. The court further said that the government should not change its stand merely due to a change in the political party in power.
The court noted that in none of the previous communications to the court, there was a reference that the earlier preliminary enquiry was not in conformity with the law, or was unreasonable or that some new materials have cropped up prompting a need for a fresh enquiry.
“Hence, this Court holds that the preliminary inquiry has been directed to be held afresh only for the reason that the other political party has come into power. The political agenda of an individual or a political party should not be subversive of the rule of law,” the court said.
The court ventured into the independence of the Executive, referring to the intent of the founding fathers of the Constitution of India towards the “three limbs of the Constitution” – Legislature, Executive and Judiciary – to be functioning independently. The court said, “The question today is whether this avowed object is prevalent in the system and is the Executive really functioning independently?”
“Many a time, truth is harsh and may even sound rude. But, truth has to be said and it cannot be swept under the carpet just because it will cause embarrassment or inconvenience. It is almost 73 years since the Constitution of India started governing this country and the harsh reality is that the Executive has almost lost its independence and it has virtually turned into an organ merely executing whatever is said/dictated/ordered by the political party, which is in power during the relevant point of time,” the court said, witnessing DMK’s use of Executive to reopen a case against former CM Palaniswami without furnishing reasons.
“Over a period of time, the political parties have carefully manipulated the system to such an extent that they have a complete control over the Executive. Every time when there is a change in guard, the entire Executive set up also changes to ensure that organ toes the dictates of the government in power. Therefore, in reality, the separation of power that is in the hands of the Executive is almost non-existent,” the court added.
The court then lamented over the “sad state of affairs in the present case.” The court noted that the Tamil Nadu government had conducted a detailed preliminary enquiry into the allegations against former CM Palaniswami, wherein no prima facie case was made out against him. However, the Tamil Nadu government took a U-turn in 2023 and decided to take action against the former CM over a closure report which was already submitted.
“Did the first respondent become wiser within a span of 5 years or did the first respondent stumble upon any other new material, which will have a bearing on the closure report?” the court posed a rhetorical question. “The answer is a resounding ‘no’ and the only reason that can be gathered from the materials placed before this Court is that there was a change in the power dynamics and that is the only reason as to why the first respondent wants to disregard the earlier inquiry report and commences a fresh inquiry,” the court said.
The court further expressed anguish over the time spent on dealing with such issues which virtually eats the judicial time, which could otherwise be spent for a poor litigant waiting for years with a “fond hope that his case will be taken up at the earliest and that there will be some light at the end of the tunnel.”
“This court expressed its anguish on the complete loss of independent functioning by the Executive and this is one such appropriate case where this Court deemed it fit to put forth the naked reality that has actually set into the system contrary to what the makers of the Constitution had in their mind when they gave us this Constitution,” the court said.
The court held that the preliminary report dated August 28, 2018, did not suffer from any apparent unreasonableness or illegalities. “Further, there is no reason for conducting another preliminary inquiry afresh as was ordered by the Government. In the considered view of this Court, such a direction has been given only due to the change in the political party that has come into power,” the court held.
