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Archive for February, 2017

RESIGNATION OF MPs & MLAs IN INDIA


Written in 2008, seems relevant in today’s scenario in Thamizh Nadu

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OF late in INDIA there have been a spate of en masse  resignation of the Members of Parliament and Members of the Legislative Assemblies of the states. The reasons cited are dependent on the political hue of the party they belong to. The issues that i am interested in is two fold:-

1. Whether the MPs and MLAs have a right to resign and if so, what is the alternate arrangement for ensuring the representation of the constituency that sent them, subsequent to the resignation of that MP or MLA?

2. Shud the grounds based on which the resignation is tendered, be enumerated in the Constitution and unless it falls within the prescribed reasons, the Speaker/Chair-person SHOULD NOT accept the resignation.

Getting publicity for one’s policies and principles, in a democratic set up is essential. No doubt, if the electorate is ignorant of the policies, for which a candidate stands…

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Thelonius Monk & Wagner


I’ve listened to many jazz pianists and other pianists, but none stings the keys of the piano like Monk does. To listen to him sting those keys and wiggle on those keys, is just like a bee which after stinging, continues to exercise its sting into its victim further by wiggling its abdomen, till it expels the last vanishing venom into the victim. It unravels the deeper anxieties of the soul mercilessly, making me stand and wonder at the vast expanse of the universe, ALONE. 
When complacency gets the better of me Thelonius Monk is my cure, if that fails, I listen to Wagner, who belligerently marches into my soul with his trumpets and tubas and trombones and drags me to his Valhalla. 

God bless their disruptive music! 

Does the Criminal Appeal filed by the State of Karnataka abate on the death of Dr. J. Jayalalithaa?


On the 5th of December, 2016 Dr. J.Jayalalithaa, then the Chief Minister of Thamizh Nadu passed away, while a Criminal Appeal was pending before the Hon’ble Supreme Court, against the acquittal granted by the Hon’ble High Court of Karnataka. The Appellant in this case was the State of Karnataka, as the Prosecutor.
In the above scenario, on the day of the passing away of Dr. J. Jayalalithaa, what was her status as a citizen, endued with all the rights enshrined in the Constitution of India? I’d not have given serious thought to this, had I not been flooded with whatsapp messages stating that a “CONVICT” cannot be glorified in the Government offices or in the State Assembly by displaying her photographs and much less be exalted by the State government sponsoring the building of a memorial at the Marina.

According to me Dr. J. Jayalalitha was an AUTREFOIS ACQUIT, at the time of her demise and merely because a Criminal Appeal had been taken by the State, the Appeal does NOT reverse her status as a CONVICT under Section 120B of the IPC, 1860 and Section 13 of the PC Act, 1988. She had been absolved of all the taint which stuck to her by virtue of the Trial Court’s order convicting her of the above mentioned offences and sentencing her to serve 4 years’ imprisonment and a fine of Rs. 100 crores.

Did the Appeal reverse the status of the Accused who was ACQUITTED?

A categorical reply would be NO.

There was no CONCURRENT FINDINGS by the Trial court and the Hon’ble High Court, in fact the penultimate court order exonerated her and thereby her innocence of the offence was established under the abiding principles of “presumption of innocence till proven guilty”.

If that were so, when did the Hon’ble Supreme Court convict her?

By the fact that the Hon’ble Supreme Court set aside the Orders of the Hon’ble High Court and affirmed the Trial Court Order, the Hon’ble Supreme Court REINSTITUTED (not ‘AFFIRMED’) that Dr. J. Jayalalithaa was a CONVICT on the date of pronouncing the Judgement on 14/02/2017 in CRIMINAL APPEAL NOS. 300-303 OF 2017(Arising out of SLP(Crl.) Nos.6117-6120 of 2015).

Irony is that Dr. J. Jayalalithaa had passed away on 05/12/2016, so the question arises as to whether a person could be pronounced guilty and convicted after her death?

Secondly, the sentence was also upheld in toto, which means that Dr. J.Jayalalithaa shall serve a prison sentence of 4 years and also pay a fine of Rs. 100 crores. That she had died on 05/12/2016 would preclude the deceased from being within the grasp of the living to enforce such an incarceration. Therefore the sentence of the jail term of 4 years would have to necessarily abate, however, the fine of Rs. 100 crores imposed on her would be recoverable from her assets left behind, either in her own name or from the beneficiaries of her bequest.

The law governing abatement of proceedings upon death is available at Section 394 of the Criminal Procedure Code, 1973. Section 394 reads as under:

394. Abatement of appeals.

(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation.- In this section,” near relative” means a parent, spouse, lineal descendant, brother or sister.

“It was conceded by learned counsel for the parties that neither in the Cr.P.C. nor in the Supreme Court Rules there is any provision dealing with such a situation.” (State Of A.P vs S. Narasimha Kumar & Ors on 13 July, 2006)  

Justices A. Pasayat and S.H. Kapadia, in their 2006 judgement, had excerpted passages from Harnam Singh v. The State of Himachal Pradesh (1975 (3) SCC 343), which appears relevant in the present context:

2. …….It is to be noted that Section 394 Cr.P.C. corresponds to Section 431 of the Code of Criminal Procedure, 1898 (in short the ‘Old Code’).

8……….Dead persons are beyond the processes of human tribunal and recognizing this, the first limb of Section 431 (Chapter XXXI of the Code of 1898) provides that appeals against acquittals finally abate on the death of the accused. Where a respondent who has been acquitted by the lower court dies, there is no one to answer the charge of criminality, no one to defend the appeal and no one to receive the sentence. It is of the essence of criminal trials that excepting cases like the release of offenders on probation, the sentence must follow upon a conviction. Section 258(2), Section 306(2) and Section 309(2) of the Code provide, to the extent material, that where the Magistrate or the Sessions Judge finds the accused guilty and convicts him he shall, unless he proceeds in accordance with the provisions of Section 562, pass sentence on the accused according to law.

9. Every other appeal under Chapter XXXI, except an appeal from a sentence of fine, finally abates on the death of the appellant. By “every other appeal” is meant an appeal other than one against an order of acquittal, that is to say, an appeal against an order of conviction. Every appeal against conviction therefore abates on the death of the accused except an appeal from a sentence of fine. An appeal from a sentence of fine is excepted from the all pervasive rule of abatement of criminal appeals for the reason that the fine constitutes a liability on the estate of the deceased and the legal representatives on whom the estate devolves are entitled to ward off that liability. By Section 70 of the Penal Code the fine can be levied at any time within six years after the passing of the sentence and if the offender has been sentenced for a longer period than six years, then at any time previous to the expiration of that period; “and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts”. The fact that the offender has served the sentence in default of payment of fine is not a complete answer to the right of the

Government to realize the fine because under the proviso to Section 386(1)(b) of the Code the court can, for special reasons to be recorded in writing issue a warrant for realizing the fine even if the offender has undergone the whole of the imprisonment in default of payment of fine. The sentence of fine remains outstanding though the right to recover the fine is circumscribed by a sort of a period of limitation prescribed by Section 70, Penal Code.

10. The narrow question which then requires to be considered is whether an appeal from a composite order of sentence combining the substantive imprisonment with fine is for the purposes of Section 431 not an appeal from a sentence of fine. It is true that an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more not less than an appeal from a sentence of fine only and it is significant that the parenthetical clause of Section 431 does not contain the word “only”. To limit the operation of the exception contained in that clause so as to take away from its purview appeals directed both against imprisonment and fine is to read into the clause the word “only” which is not there and which, by no technique of interpretation may be read there. The plain meaning of Section 431 is that every criminal appeal abates on the death of the accused “except an appeal from a sentence of fine”. The section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. All that is necessary is that a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence.

11. It is difficult to discern any principle behind the contrary view. The reason of the rule contained in the exception is that a sentence of fine operates directly against the estate of the deceased and therefore the legal representatives are entitled to clear the estate from that liability. Whether or not the sentence of fine is combined with any other sentence can make no difference to the application of that principle.”

State Of A.P vs S. Narasimha Kumar & Ors on 13 July, 2006

       Bench: Arijit Pasayat & S.H. Kapadia, JJ

        CASE NO.: Appeal (crl.) 1446-1450 of 2004.

The distinguishing part of the above mentioned judgement with that of Dr. J. Jayalalithaa’s case is that, the Appellant in the cited case was a “CONVICT”at the time of the Appeal, as the Appellant went on appeal against the orders of the High Court which had held him guilty, whereas, Dr. J. Jayalalithaa had been exonerated and the State went on appeal. Therefore, Dr. J. Jayalalithaa was innocent in the eyes of the law during the pendency of the Appeal.

The above judgement by Justices Pasayat and Kapadia is based on Section 431 of the 1898 CrPC, as no pari-materia provisions were found to be available  to the succeeding CrPC and after adoption of the Constitution of India, the law had to be rewritten.

It is clear that only the Fine part could be continued and that too from the assets of the deceased Convict. But the question rises again whether a person could be held guilty of a crime after her death and be declared a Convict? If all the criminal proceedings except the liability of fine continued, at the time of her death, what is the sanctity of “presumption of innocence” which followed her acquittal? and who convicted her guilty after her death?, to create a claim over a fine, which was imposed by the Trial court and later set aside and thereafter revived by the SC Order dated 14/02/2017?

I have no answers for the above questions, but am sure that someone who is interested in ensuring that Dr. J. Jayalalithaa’s reputation is not sullied, by the exigencies of the political commotion, would be emboldened to raise it as a Curative Petition before the Hon’ble Supreme Court and remove the unwanted taint cast on her because of her association with EVIL.

 

If nothing else, constant self assurance keeps your morale high and your body up. An incapacity to Believe is like illiteracy, it can be cured through practice! 


Like as the arrows of the archer are to kill, there are archers of golden arrows, who give Life and luxury to those survivors or his descendants or finder of the Arrow. The intent of the Archer is of importance, I don’t know whether the intent made the arrow gold or the gold made the Archer’s intent. 


Quarantined MLAs & Governor’s response!


The happenings in Thamizh Nadu are in the cusp of Formalism and Evolution.Formalism is that the Governor has to call the person who enjoys the support of the majority MLAs of the state legislature and swear him/her in as the Chief Minister of a state. Mrs. Sasikala has a list of MLAs which consists of 135 MLAs who had pledged support to her as the Legislature party leader of the single largest party of the Assembly. The effective strength of the legislature is 233 and the midway being 116.5, Mrs. Sasikala has the support of 135 MLAs, as per letters of support dated 05/02/2017, thereby there appears to be no doubt about her having enjoyed the majority of the MLAs as on 05/02/2017. But the Governor has to consider if the letters of support has become STALE and NON REFLECTIVE OF THE EVOLVING SITUATION POST DHYAN OF OPS IN THE MARINA. 

The Governor is to consider if the person he’d swear in has the majority and thereafter tell him/ her to get the CONFIDENCE VOTE in the Assembly, so that the person chosen by him doesn’t take over the Administrative machinery of the state and legitimise it through strong arm tactics and prove his/her majority. 

Further, it is common knowledge that the May 2016 poll victory was for Dr. Jayalalitha and none besides.

 So the MLAs, being the representatives of that will of the people and the only remnant beneficiaries of that will, post demise of Dr. Jayalalitha , should be guided by the good sense of their conscience and support a new leader. Are their CONSCIENCE UNENCUMBERED? I guess not. Having been quarantined in Koovathur Golden Bay Resorts, their free will appears to be cumbered and fettered, casting legitimate doubts if the MLAs are truly Free! The Governor ought to feel that the letters of support have become stale and majority MLAs are not FREE, as on date. Therefore their letters of support are suspect. 

Under the above mentioned Formalism lies the magma of the new emerging force of OPS, which is accreting MLAs and MPs by the day. The MLAs in Koovathur neither know the happenings, having been cut off from the electronic media and social media. Democracy is all about catering to the legitimate will of the people, however capricious it may be. Stability is important for administration, however during turbulent Times, to expect quick stability would be a wrong expectation. 

Over and above all this is the fact that the KA Govt had appealed against the acquittal of Late Dr. Jays and Mrs. Sasikala and others by the High Court. The Supreme Court has already stated that the matter has been heard and reserved for orders and just a week back a sitting Justice of the Supreme Court has stated that the verdict would be delivered in a week’s time. If the Supreme Court were to overturn the KA High Court verdict, the surviving Accused run the risk of being taken to Jail, unless there is a suspended sentence. Mrs. Sasikala being one of the defendants in that case, would it be appropriate for the Governor to swear in an ex- factotum as the CM of the state, when even the mandate was only for Dr. Jaya and none besides? 

I guess not. This calibrated response of the Governor is laudable and praiseworthy as he has not rushed into sanctify a stale Formalism at the cost of an Evolving reality. 

Vaazhga Thamizh. Valarga Thamizh Nadu.

Inclusiveness of Thamizh Nadu! 


There is a tendency to refine culture to the extent that the underbelly of the culture which produces the base products and provides labour, are marginalised to such an existence of mere subsistence. The effect is that the refined tastes and products become the ASPIRATIONAL VALUES of the whole society. The consequence of such universal aspiration drives the whole community towards the single spire of perfection of the educated and the well heeled. Diversity exists out of necessity and the NATURAL ASPIRATIONS of the deprived and the uneducated are marginalised through discouragement of funds, knowledge and opportunities. 

The above is the condition of most of the cultures in India, but the outstanding exception in India is Thamizh Nadu. 

This has not been achieved thru the efforts of Thamizhans alone but with the complementary contributions of the Telugu people, especially the Andhra & Rayalseema people. One may wonder how the Thamizh got integrated with the Andhra! But without the Andhra rice, tobacco, chillies and their entrepreneurial involvement Thamizh culture wouldn’t have evolved to where it is today. 

The seeds of the so called Dravidian culture was sown by the Justice Party, which was against the refinement expressed by me above. Refinement leads to removal of all fibre in the society and it becomes maida, with no essentials for smooth movement of the bowels! Stagnation leads to grumpiness and ossification with little capacity to meet the exigencies of the evolving challenges. 

EVR, TM Nair, Natesa Mudaliar. Subbarayulu Reddiar, Panagal Zamindar and Theagaraya Chetty led the Justice Party , which had democratically won the hustings and ran the diarchic government of the Madras Presidency between 1920 and 1936. The only exception to the leaders of the Justice Party was T.M. Nair, having his community base in Travancore and Cochin kingdoms. Thus as an outfit to obtain representation of the other communities other than Brahmins worked together in close ranks, which in today’s context could be explained as having worked for the upliftment of the DEPRESSED CLASSES. 

I think one of the realisations which dawned on the promoters of the party was the fact that having capital, land and labour cannot EMPOWER those who brought those inputs but in the new order, it was important to have the LEGISLATIVE POWER to make laws which would provide opportunities for education and bring managerial skills to the uneducated and the uneducated but wealthy classes! 

So the process of rectification of the power balance within the Madras Presidency as a society started from 1920 and lasted till 1937 when Congress, which the Justice Party perceived as being controlled by Brahmins came to power. The essential reason for Justice Party losing power were twofold, primarily there was no charismatic leaders with the ability to enlist new acolytes to its line of thinking; secondly, Gandhi’s popularity along with a rejuvenated Nationalism brought the people under the new perception and the social engineering came to an end. However Rajagopalachari’s imposition of Hindi kept the embers alive, but Justice Party became Social outfit without showing the necessary belligerence to politically fight the Congress. It was only in 1949 that this was corrected by Annadurai forming the DMK with a political agenda of capturing power. The 1950’s linguistic division of Madras Presidency further clove the Thamizh Telugu unity, with Prakasam and Potti Sriramulu rooting for a separate Andhra. The Madras Presidency split leaving a residue of Thamizhs and Telugus sharing the state of Thamizh Nadu. As is their wont, the Keralites went back to their state except for those who had small businesses and jobs, but all the Malayalees kept their native place lands and never cut their umbilical cord with their Travancore-Cochin state. This is true of all malayalees, whether in Delhi or New York, they build their native homes before buying a flat in the domiciled country. This is where the Telugus differed, the Naidus and Reddiars who had flourishing businesses were not inclined to quit the state for multiple reasons. Predominantly they are that the Telugu culture is complementary to Thamizh, in that Telugu ability to take financial risks in entrepreneurship was complementary to the Thamizh disciplined skilled workforce desirous of reasonable wages only and uninterested in the ultimate profits or losses made by the landowning and capital bringing Telugu; their shared eating habits; their empathy with the religious rituals of the Thamizhs and also that the Telugus were not able to exit their businesses and build alternative businesses in Andhra. The infrastructure of Thamizh Nadu provided a better movement of goods and services. Thus the Thamizh and Telugu cultures have become complementary in the right proportion and shall remain so. 

Let us see the areas on which Telugus have excelled within Thamizhnadu: in the textile industry; in the film industry; in the finance sector; in educational institutions; in restaurant businesses; in component manufacturing industry they have inextricably linked to the Thamizhs. More than all this the Telugus who had contributed have all been from those communities which were supported by the Justice Party. Hence, there is a composite culture of those deprived classes in huge numbers, whose aspirations are not ‘REFINEMENT’ but earning a good education and livelihood. These have made the present day Thamizh Nadu the most INCLUSIVE STATE, with lesser priority in merely acquiring ‘refinement’ at the cost of the fundamentals. Thamizh culture rarely adopts other cultural icons, it borrows and quickly adapts those cultural traits and integrates them efficiently. 

For the above reasons, Thamizh culture periodically is susceptible to purging of the vestiges of the alien cultural trappings which smuggle themselves in thru disguised Trojans, like the aspirated consonants like jha, sha, bha etc, which were promptly replaced through purging of ‘contaminated’ Thamizh. The Serfogis of Tanjore and Naicks of Madurai had brought many of those sounds and empowered them to become aspirational sounds. For example, ‘agam’ became ‘aham’ ; mugam became muham, etc. These purges are essential and the assertiveness of the Thamizh from time to time is not for berating other cultures but a purging of the vestiges of elements foreign to its culture. Jallikattu and the aspirations of the Thamizhs is to be seen in this light. The farmers and livestock owners are opportunities for the Thamizhs in their periodic exercise at INCLUSIVENESS. 

Thamizh vaazhga! 

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