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'He can say justice has not been done in accordance with the free will of the MLAs without a secret ballot and also by the issuing of a whip.'
'He can ask for a fresh show of strength.'
B V Acharya, 83, was the special public prosecutor in the case that led to the Supreme Court convicting former Tamil Nadu chief minister J Jayalalithaa and her aide V K Sasikala in the disproportionate assets case.
The case lasted almost 20 years in various courts in various states, from Chennai to Puducherry to Karnataka to the Supreme Court.
Rediff.com's Shobha Warrier asked Mr Acharya, below, left, to comment on the current political crisis in Tamil Nadu and the governor's role.
People describe what happened in the Tamil Nadu assembly on Saturday, February 18, as a black day in the history of democracy. Do you agree with this observation?
I agree with it only partially. According to me, every one of the parties committed mistakes.
The behaviour of the DMK members attacking the Speaker and creating violent scenes in the assembly is deplorable.
It is a point against democracy.
As far as the government headed by E Palanisami is concerned, I feel confining all the MLAs in a resort and not giving them opportunities to have outside contact with their family, friends and the constituency is a blatant blow on democracy.
When it was quite obvious that the MLAs were held captive, can't the governor or the legal system do anything about this?
My suggestion throughout was, in a situation like this, the governor should impose or recommend President's rule for three months till normalcy returns, till these MLAs are able to go back to their homes and constituencies and express their views in a free manner after consulting the people of their constituencies.
The mandate of the people was for Jayalalithaa and she is no more.
So an MLA must have the time to think, reflect and take a decision to who s/he must support between the two rival camps.
But that opportunity is denied to these people because they were virtually held captive in a resort and brought to the assembly straight from there.
It can be called a sort of coercion or undue influence under duress.
They were not expressing their views out of free will.
Secondly, they were not allowed to have a secret ballot.
I am not sure about the factual position, but I am told a whip was issued against voting for the government.
Issuing the whip was absolutely wrong in my opinion as there are two groups.
In fact, the case is with the Election Commission to see whether Sasikala's election (as All India Anna Dravida Kazagham general secretary) was valid as per the bylaws of the party.
What will happen if the Election Commission does not accept Sasikala's elevation as interim general secretary of the party? Will it remain just the internal affairs of the party or affect the government also?
Strictly, under law, it may not affect (the government) but it will have serious implications.
The governor should have seen that at least there was a secret ballot without a whip.
The validity of the whip is in question.
The entire thing was a meaningless exercise if the whip was issued, according to me.
Even if the whip was issued, there should have been a secret ballot.
You mean, the governor should have asked for a secret ballot earlier itself as the assembly speaker belongs to the Sasikala camp?
Correct. The governor should have given direction for a secret ballot.
One suggestion I make is there should a cooling period of at least 2 to 3 months in a situation like this so that every MLA gets time to spend in her/his constituency with her/his family, friends and people.
S/he would be able to judge whether a wrong was done by the Sasikala group.
This way, the governor should have ensured the independence of the captive MLAs before they cast their vote.
When the public sentiment appears to be against one group, can the governor act as if he is unaware of this?
What to do? The worst part is, all this is not justiciable.
According to me, the governor can even reject the report of the speaker of the confidence motion that is won by the government.
He can say justice has not been done in accordance with the free will of the MLAs without a secret ballot and also by the issuing of a whip.
He can reject the report and can ask for a fresh show of strength.
So, what has happened is not a situation from which there is no escape?
Yes. The governor has got the power, according to me.
He can reject the report and make another attempt to see that the free will of the people is obtained.
The trust vote happened without the Opposition and with just the AIADMK MLAs in the assembly. Is it legally valid to have such a trust vote when the trust of the house was not tested?
Technically, it may be right.
When there is pandemonium in the House, the Speaker has the right to evict the people who are disrupting.
But without the entire Opposition being there, conducting a mock trust vote is not a trust vote at all.
It is a one-sided decision of one group under threat of a whip, that they will lose the membership for another 4-and-a-half years.
The people of Tamil Nadu feel helpless watching this drama...
This is totally wrong, but what to do?
There must be a way out.
The jurisdiction of the court to interfere in such matters is very limited.
It is only the governor who can take some action to rectify the mistake by rejecting the so-called confidence motion and instructing for a fresh motion with a secret ballot and without a whip.
Is the situation in the state such that the governor can dissolve the assembly and call for fresh elections?
He need not dissolve the assembly; he can keep it under suspended animation so that the assembly will be there, but they don't meet, and bring in President's rule for another 2, 3 months.
Does this show that there are loopholes in our Constitution which need to plugged?
Yes, yes. The founding fathers of the Constitution would never have imagined our politicians would behave the way they are behaving now.
This is something they might not have contemplated then.
Therefore, you can't blame the Constitution; you must blame the people who follow the Constitution and implement it.
In fact, on the last day of the Constituent Assembly, both Dr Rajendra Prasad and Dr Ambedkar said the value of the Constitution would be determined by the people who implemented it.
The Constitution is neither good or bad, it depends on the people.
One thing is certain, now that we have experienced it, we can at least develop a convention or amend the law if necessary, in the Constitution to face a situation like what we saw the other day, that is, without any whip being issued by anybody and using a secret ballot to find out the test of the majority in the House.
Winston Churchill said before Independence: 'Power will go to the hands of rascals, rogues, freebooters; all Indian leaders will be of low calibre and men of straw. They will fight amongst themselves for power and India will be lost in political squabbles.' Are we proving him right?
All of us criticised Churchill for saying that. But now a situation has arisen that if not what Churchill said is not hundred percent true, it is becoming almost true.
Our politicians are justifying what he said.
At the Tamil Nadu assembly, the MLAs had to take a decision and they had to choose between two.
One was whether the state of Tamil Nadu should be ruled by someone who is in a prison in Bangalore or by a person who would be in the secretariat at Fort George.
This was the choice and they chose the first.
What is happening is entirely contrary to the wishes of Jayalalithaa.
She did not want anybody from Sasikala's family anywhere near the party or the secretariat.
Now the entire party and government is taken over by them.
Is it not the murder of democracy?
True. It is contrary to the will of the people and also contrary to the will of Jayalalithaa in whose name they are doing all these things.
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