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With TN bypoll cancellation, Centre gets more than a toe in

By N Sathiya Moorthy
April 10, 2017 10:13 IST
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The Rs 89 crore question before Tamil Nadu now is what shape a central intervention would take, and if there would be any role whatsoever for acting governor, Ch Vidyasagar Rao, in it, says N Sathiya Moorthy.

Image: AIADMK (Amma) party leader TTV Dinakaran appeals for vote for bypoll in the RK Nagar Constituency in Chennai on Sunday. Soon after, the Election Commission cancelled the election. Photograph: R Senthil Kumar/PTI Photo.

With the Election Commission as expected ‘cancelling’ the by-election in the RK Nagar assembly constituency in Chennai, due on April 12, will it become inevitable for the Centre to intervene in the state that is politically troubled following the death of Chief Minister Jayalalithaa, who was also the local MLA?

Expectations about EC decision had heightened following the social media circulation of a tabulated statement about the incredible amount of Rs 89 crores distributed to RK Nagar voters.

The Sunday night EC cancellation order, signed by all three Election Commissioners, confirms the authenticity of the statement, but clarified that it needed further investigations.

According to the EC announcement, the statement, containing the names of Chief Minister Edappady K Palanisami and other ministers and ruling All India Anna Dravida Munnetra Kazhagam (Amma) faction members of Parliament, was recovered by income-tax authorities from one Srinivasan, accountant of Tamil Nadu Health Minister Dr C Vijaya Bhaskar.

For the first time since last week’s IT raids in about 50 offices and residents linked to Vijaya Bhaskar and those associated with him, the EC statement confirmed that it was based on complaints about the minister acting as the fulcrum of money distribution at R K Nagar, on behalf of the Sasi faction’s candidate T T V Dhinakaran.

Vijaya Bhaskar, and also actor-politician Sarath Kumar and MGRMedicalUniversity vice chancellor, Dr S Geethalakshmi, whose houses were raided last week, have been summond to the IT department at Chennai.

Going by the nature and circumstances of the raids and its findings, there is little that the Election Commission can do by way of proving the ‘tabulated statement’.

Already, the IT authorities are seized of the probe, and depending on their recoveries, the Enforcement Directorate too may have to be involved.

Whether or not there was a case for a CBI inquiry into the ‘money distribution case’, which was purely of a criminal nature and needed further evidence collection and interrogation, too may have to be decided at the appropriate levels of constitutional authority.

On specifics, there is the added criminality of some ministers of the state, and its representative at Delhi, ex-minister Thalavai Sundaram, also holding a Cabinet rank, allegedly interfering with the work of the income tax raid on  Vijaya Bhaskar and company.

The presence of CISF personnel also did not deter Vijaya Bhaskar’s aides from taking away records from the minister’s residence and throwing it into the waiting crowds, to escape the raid team, has also not gone unnoticed.

It was an unprecedented situation, which if countenanced in the midst of more grievous offences as massive money payment to voters, could lead to the IT department as a whole losing its teeth, or whatever is there under the law.

The way senior officers of the Chennai police behaved at the time, and the way all of it happened in the very presence of CISF personnel accompanying the raid party, would mean that the next time round anywhere in the country, the latter might be forced to act -- with all the attendant political and constitutional complexities.

It could also mean that more ministers, apart from those already named in the ‘tabulated statement’, could have to be brought under criminal investigations by appropriate authorities, under appropriate directions from such other appropriate authorities.

For now, the EC announcement makes out a prima facie case on the ‘tabulated statement’. If it were to be found true, and if at least six state ministers, including CM Palanisami, are found to be involved, can any criminal investigation be taken forward, even if by the CBI, without any or all of them seeking to ‘influence’ the witnesses?

In ordinary criminal cases, the prosecution would normally seek denial or cancellation of bail for the accused, after arresting them and producing them before a court.

In this case, no arrests of the kind are possible at least until a primary case had been made out, beyond the loose sheet of papers, purportedly recovered from someone’s possession.

What might hold good as of high evidentiary value for IT purposes may not be enough to prosecute, especially those holding responsible constitutional positions, in a criminal case(s), where an offence had to be proved beyond all reasonable doubts.

Under the Westminster form of jurisprudence in vogue in India in most criminal cases, the law and law courts tend to grant the benefit of the doubt to the accused, in case of conflict about the evidentiary value of men and/or material.

In a Russian roulette-like situation, it thus becomes necessary for the President of India, acting through the Centre, to create appropriate conditions for the CBI, for instance, to undertake a free and fair investigation into the matter, should the EC or the courts direct an independent probe uninfluenced by the state government (thus ruling out the Tamil Nadu police, to begin with).

What shape such central intervention would take, and if there would be any role whatsoever for acting governor, Ch Vidyasagar Rao, would all be known only during the upcoming days and weeks.

Such an intervention can go up to the imposition of President’s rule, even if for a time, to facilitate free and fair investigations -- though no precedents exists for the same, just as there are no precedents for the current accusations, either.

Yet, it can also begin with a court-ordered CBI probe, in the absence of exceptional powers for the Centre to do so in the absence of a state government’s directive to the effect.

Given the circumstances under which the EC has cancelled the RK Nagar by-poll, it would remain to be seen as to what the Commission would accept as ‘conducive condition’ for holding the by-election now.

It needs to be noted that the EC has ‘cancelled’ the by-poll and not countermanded the same, as was once expected to do. This is because the Representation of the People Act specifies booth-capturing as the only situation in which polling could be countermanded. It does not provide for money and gifts being a justification of the kind.

In the May 2016 assembly polls in Tamil Nadu, the EC was forced to cancel the elections in Thanjavur and Aravakkurichchi constituencies, owing to the IT raids recovering huge quantities of moneys stored for distribution to voters.

RK Nagar, where Jayalalithaa was the AIADMK candidate then, topped the list in social media circles and in criticism by the political Opposition and civil society. But no action whatsoever was initiated at the time.

However, after the cancellation of polls in Thanjavur and Aravakkurichchi, the EC had recommended relevant amendments to the Act. However, the Centre, which seems to be too keen on cleansing the nation’s political system of all corrupt practices, is yet to take notice, leave alone act upon it.

Incidentally, in fresh elections conducted when Jaya was in hospital, the ruling AIADMK won both Thanjavur and Aravakkurichchi.

However, now after the ‘tabulated statement’ began doing the rounds, Leader of the Opposition M K Stalin has come up with a new allegation.

According to the DMK leader, the name of Dr Balaji, the government doctor who had certified that Jaya as party general secretary had affixed her thumb impression to B-Form for allocation of the ‘Two Leaves’ symbol, was fully conscious at the time, was found in one of the documents seized by the IT department in the Vijaya Bhaskar-related raids.

If found true, Stalin’s allegation would mean that the minister had paid Dr Balaji Rs 5 lakhs for ‘services rendered’ or whatever.

N Sathiya Moorthy, veteran journalist and political analyst, is Director, Observer Research Foundation, Chennai chapter.

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