Tyranny of Article 35A of the Constitution of India R/W Section 6 of the Constitution of J&K on Women of J&K

(A) Article 35A of the Constitution of India. -  Saving of laws with respect to permanent residents and their rights.— “Notwithstanding anything contained in this Constitution, no existing law in force in the State of Jammu and Kashmir, and no law hereafter enacted by the Legislature of the State,— (a) defining the classes of persons who are, or shall be, permanent residents of the State of Jammu and Kashmir; or (b) conferring on such permanent residents any special rights and privileges or imposing upon other persons any restrictions as respects— (i) employment under the State Government; ii) acquisition of immovable property in the State; (iii) settlement in the State; or (iv) right to scholarships and such other forms of aid as the State Government may provide, shall be void on the ground that it is inconsistent with or takes away or abridges any rights conferred on the other citizens of India by any provision of this Part.”.

(B) Section 6 of the Constitution of J&K. Permanent residents - (1) Every person who is, or is deemed to be, a citizen of India under the provisions of the Constitution of India shall be a permanent resident of the State, if on the fourteenth day of May, 1954-  (a) he was a State Subject of Class I or of Class II ; or  (b) having lawfully acquired immovable property in the State, he has been ordinarily resident in the State for not less than ten years prior to that date. (2) Any person who, before the fourteenth day of May, 1954, was a State Subject of Class I or of Class II and who having migrated after the first day of March, 1947, to the territory now included in Pakistan, returns to the State under a permit for resettlement in the State or for permanent return issued by or under the authority of any law made by the State Legislature shall on such return be a permanent resident of the State. (3) In this section, the expression "State Subject of Class I or of Class II" shall have the same meaning as in State Notification No. 1-L/84 dated the twentieth April, 1927, read with State Notification No. 13/L dated the twenty-seventh June, 1932.

(C)Vide Constitution (Application to Jammu and Kashmir) Order, 1954, in exercise of the powers conferred by clause (1) of Article 370 of the Constitution, the President (i.e. Central Government), with the concurrence of the Government of the State of Jammu and Kashmir, was pleased to order the insertion of a new Article namely 35A  in the Indian Constitution. Thus, it was added through an executive act and the procedure prescribed for amendment of the Constitution of India under Article 368 was not followed/or was not required to be followed in view of Article 370.  However, the manner of induction of said Article and vires/validity of the provisions thereof have been put to a challenge before Hon’ble Supreme Court of India and is still pending for adjudication.

(D) The existing legal regime (State Laws, Executive notifications and orders etc) of J&K sets out that if a man is permanent resident of J&K and he marries non-permanent resident woman of the State or marries a woman outside the State, his wife is entitled to Permanent Resident Certificate (PRC) and all the ensuing “privileges”. Children born from the wife will also get the PRC rights in full in J&K. (viz. employment under the State Government,  right to hold, inherit and acquire  immovable property in the State; settlement in the State; right to scholarships and such other forms of aid as the State Government may provide; voting right etc). Conversely, if a woman who is permanent resident of J&K marries a non-permanent resident man of the State or marries a man outside the State, she loses her PRC and privileges it entails. Hence, no question of PRCs to husband and children. No associated benefits to them whatsoever.                                                                    (E) A Full Bench of J&K High Court  in State Of Jammu & Kashmir vs  Dr. Susheela Sawhney  was called upon to decide a question as to  “Whether the daughter of a permanent resident of State of Jammu & Kashmir losses her status as a permanent resident of the state of Jammu & Kashmir on her marriage with a person, who is not a permanent resident of the State of Jammu & Kashmir?”(Note: the loss or absence of status as a permanent resident of the state of Jammu & Kashmir disentitles a person not only in respect of right to hold , inherit and acquire immovable property in the state but also in respect of employment in the state and the right to scholarship and such other forms of aid as the State Government may provide etc etc ). Vide a judgment dt 7 October, 2002, by 2-1 majority, the Bench of the High Court held that “a daughter of a permanent resident marrying a non permanent resident will not lose the status of permanent resident of the state of Jammu and Kashmir”.

(F) Thus, the rights of women married to non-state subjects have been protected by virtue of the interpretation placed by the Hon’ble J&K HC of the relevant laws/orders. But their children have been left unprotected. Children whose mother is a permanent resident but father a non-permanent resident are denied the rights. Children have no right to inherit or own property, vote, get admission to professional colleges and get government jobs in Jammu and Kashmir even though they were born and brought up in the state. Their only fault is that their mother had married a person who is not a permanent resident of Jammu and Kashmir.

(G) It is also noteworthy that in 2004, the state government led by Mufti Mohammad Sayeed had introduced a Bill in the Legislature to take away the rights of women who marry a non-state subject. The Bill, passed within six minutes in the Assembly, was blocked in the Upper House because of a massive public protest. Moreover, the Hon’ble Chief Minister of J&K Mehbooba Mufti had recently remarked that all those who are opposed to Articles 370 and 35A and favor their abrogation are “anti-nationals”. Interestingly, Farooq Abdullah (Prominent politician & Ex CM of J&K) is married to an English woman Molly based in London. Their Son Omar Abdullah (Ex CM) is married to Delhi based Payal Nath and Daughter Sarah is married to Rajasthan based Sachin Pilot (Ex Union Minister).

ENTREPRENEURSHIP IS NOT A LESSER SERVICE TO NATION

ENTREPRENEURSHIP IS NOT A LESSER SERVICE TO NATION

Employment opportunities in Government and Public sectors are on the wane gradually but steadfastly. A BIG chunk goes to caste based reservation (to some extent it's a necessity), nepotism, political and money considerations etc. However, a large swathe of populace considers that one and only panacea for their all ills and a gateway to economic salvation is a secured government job. Lust for government jobs has given rise to a frenzied scamper for getting tagged with proud LOGO of “BACKWARDS” at any cost. Reservation seeker daredevils muster up enough courage to block national highways, vandalise the public and private property, jeopardize others’ lives, assault and chase away the police and other security personnels, give and take precious lives at the altar of reservation cauldron and above the all, enjoy overt or covert political/administrative patronage. Some people conveniently forget that the political power is the magnet that attracts all other coveted temporal bliss in tow. Nevertheless, we may feign to be oblivious of agrarian crisis and resultant despair, distress and chaos at our own peril only.

On the other hand, people set up businesses/start-up ventures of self-employment and allied undertakings (small to big) by investing hard earned money of their parents or on private /public borrowings and tirelessly work for at least 12 hours a day (no holidays/vacations, social securities etc) and perennially put up with all sorts of bullying from a wide range of entities viz. Tax Depts, Police, Municipalities, Land Authorities, Environment/Pollution Depts, Labour Dept, Food Dept., Politicians, Local goondas et etc etc) in this age of cut-throat competition and market volatility. Anyhow, some perish - some survive - some thrive and also generate significant job opportunities for others besides immensely contributing to the growth and development of the economy of the Country.

 It would be in the fitness of things to say that BUSINESS INCOME upto Rs. 5 Lakh should be INCOME TAX FREE and > Rs. 5 Lakh upto 25 Lakh should not attract income tax levy of more than 5%. Same may also hold good mutatis mutandis for professional income. 
भारत माता की जय

MUCH HYPED BUT PHONEY CREAMY LAYER CRITERIA (RULE OF EXCLUSION)

UNDOUBTEDLY “FARMERS” ‘FACING BRUNT OF AGRARIAN CRISIS’ AND PERHAPS ALSO “SOME OTHER” ‘FACING ACUTE ECONOMIC CONSTRAINTS’ URGENTLY NEED RESERVATION. WOULD EXISTING FRAMEWORK OF CREAMY LAYER ALLOW EVEN A NANO DROP TO PERCOLATE DOWN TO THEM?

(1)    In terms of prevailing Central and Haryana State OBC creamy layer criteria, the present income ceiling of Rs 6 Lakh pertains to income of the parents of the applicants from ‘other sources’.  The salary from private, public and government sectors   and also agriculture income of such parents shall not be added to their income from “other sources“. Meaning thereby, it is confined to ‘income from business and profession’. (Pertinent to mention herein that as per the Government of India, poverty line for the urban areas is Rs. 296 per month and for rural areas Rs. 276 per month).

(2)    Moreover, the creamy layer status of applicant is determined on the basis of the status of his parents and not on the basis of his own status or income or on the basis of status or income of his/her spouse. Therefore while determining the creamy layer status of a person the status or the income of the candidate himself or of his/her spouse shall not be taken into account.  

(3)    Children of parents possessing wealth above the exemption limit as prescribed in the Wealth Tax Act for a period of three consecutive years are considered in creamy layer and hence excluded from benefit of reservation.

(4)    Where the husband is in some profession e.g. advocate, CA, doctor etc  and the wife is in a Class II or lower grade employment, the income/wealth test will apply only on the basis of the husband’s income. If the wife is in any profession and the husband is in employment in a Class II or lower rank post, then the income/wealth criterion will apply only on the basis of the wife’s income and the husband’s income will not be clubbed with it.

(5)    It is also notable that while the “creamy layer“criteria of automatic disqualification for the applicants whose either of the parents is a direct recruit or a promotee not beyond the age of 40 year   in Group A or both parents are in Group B of the government   services also applies to those holding “equivalent or comparable posts“in Universities, PSUs, Banks, Insurance, other allied organizations and Private sector. Pending such evaluation of the posts on equivalent or comparable basis they will be governed by Income/wealth criteria (income from salary and agriculture not to be taken into account). However, it is worth mentioning that no comparative evaluation of such posts has been done till date.

(6)    Children  of parents either or both of whom is or are in the rank of Colonel and above in the army and to equivalent posts in the Navy and the Air Force and the Para Military Forces find place in creamy layer.

(7)    In Central OBC quota, only  those applicants will be treated in creamy-layer whose parents are having irrigated land which is equal to or more than 85% of the statuary ceiling area and the rule of exclusion will not apply if the land holding of a family is exclusively un- irrigated. In Haryana, there is no qualifying limit of 85%. Moreover, relevant land ceiling law in Haryana provides for different land ceiling limit qua irrigated land, un-irrigated land and  in case of mix of irrigated & un-irrigated land ranging from  about 25 acres to 55 acres. Statutory Ceiling on land holding varies in different States.

NOTE:

1.      Existing OBC creamy layer criteria (Rule of Exclusion) is too phoney to allow any noticeable benefit of reservation to percolate down to the small farmers stuck up in unending agrarian crisis in Haryana and rest of India – one of the most needy segment of the society that deserves the benefit of reservation. Moreover, present OBC creamy layer criteria are parent specific. Needless to say that possible wrong inclusions/retentions cannot be the basis for further wrong inclusions. The time has come to open the gate of OBC list to make graceful exit of relatively resourceful ones and to permit entry of the most distressed like small farmers, small traders, industrial workers, farm labourers etc irrespective of caste and religion.

2.      However, reportedly in Haryana the children of those who have a gross annual income of up to Rs three lakh would get the first preference as far as the benefits of reservation in services and admission in educational institutions are concerned. Thereafter, the remaining quota seats, if any, would go to those in the Backward Classes category who earn between Rs three lakh and Rs six lakh per annum AS EXPLAINED ABOVE.

3.      It is worth mention that ANNUAL INCOME CRITERIA FOR ECONOMICALLY BACKWARD PERSONS IN GENERAL CASTES CATEGORY in Haryana pegging the income ceiling at Rs 2.5 Lakh is “family specific” and includes income from “all sources” eg. salary (private, public, government sectors), agriculture business, profession etc. "Family" means applicant,  Head of the family and his/her spouse, Dependent children and their spouses,  unmarried dependent brothers and sisters. In case any person in the family, as described above, is income-tax/wealth tax payee, benefit of reservation shall not be extended. Applicant or family as described above should not be in Class-I/Class-II services of Government of India or State Government level or equivalent or hold any equivalent post in any statutory board/corporation /University/ society/trust or an equivalent position in any public/private limited company or in any International organization. In case, family as described above, is engaged in a profession as doctor, lawyer, chartered accountant, income –tax consultant, financial or management consultant, engineer, architect, computer specialist, film/TV artist, play write, author, model, media personnel or holds any elected/appointed office either under the Constitution or in terms of any statute out of which emolument/salary is paid, the total annual income of the family of the applicant should not cumulatively exceed Rs.2,50,000/- per annum from all sources. The relevant notification is silent on what will happen pending such evaluation of the posts on equivalent or comparable basis.  Family, as described above, should not be employed in any Military or para-Military services with Union of India in the rank of Second Lieutenant or above in the Army or any equivalent rank in other forces of para-Military forces.

Related write-ups: 

http://rajkhushiniti.blogspot.in/2016/04/reservation-at-gun-point-violence-pays.html

http://rajkhushiniti.blogspot.in/2016/04/conundrum-of-mandal-commission-jat.html

http://rajkhushiniti.blogspot.in/2016/03/all-appeasement-no-celebration.html

http://rajkhushiniti.blogspot.in/2016/02/need-to-re-work-extant-system-of.html

NAGALAND IN TURMOIL OVER 33 PER CENT RESERVATION FOR WOMEN IN LOCAL URBAN BODIES

-          Nagaland has been in a state of  chaos and disorder  ever since State Government took a decision  to conduct Local Urban  Bodies (LUBs) elections with 33 per cent reservation for women which  have been due for last 16 years.  The protests are being led by Naga HoHo, Lotha HoHo and   Sumi HoHo – 3 Naga tribal bodies that represent more than 18 Naga tribes. They argue that  the  concept of women's reservations infringes on Naga "traditional rights"   and is against their      customary tribal beliefs and that the Naga society is allowed to follow its own customary rules and laws, as guaranteed   by Article 371A[1] of the Constitution[2].

-          The Naga Mothers’ Association (NMA), the key organization, which led the fight for the 33 per cent reservation in the Local Urban Bodies based on Article 243T[3] inserted via 74^th Constitutional Amendment in 1993.  In 2016, the Supreme Court passed an interim order requiring the state government to provide   for women’s reservations in the ULBs, as in other states. Chief Minister T.R. Zeliang’s Government had decided to hold the polls on February 1, 2017 after it received an approval from the cabinet on August 10, 2016 .

-          The traditional Naga practices bar women from inheritance.As per one of the study, a woman from Ao tribe can neither become a member of the traditional tribe/clan/village council nor inherit ancestral land, purportedly owing to her ‘physical weakness’.

-          According to the customary laws of the Chakhesang Nagas, when a married woman is caught in adultery, she must leave her husband’s house with only her clothes she is wearing, and pay a fine depending on the gravity of the situation. Whereas, if a married man brings his lover and creates disharmony in the family, he will have to give his wife half his property acquired during his marriage life.

-          Although tribal customary laws are unwritten and uncodified, these oppressive customary practices have emerged as a result of the patriarchal interpretation of these laws by men.

-          There has not been a single women legislator in the state Assembly since 1963 when Nagaland came into being. The only woman to get to Parliament was Rano Shaiza, niece of the pro-independence leader AZ Phizo, who was elected to the Lok Sabha in 1977. Those women who are standing for the polls are under immense pressure to withdraw owing to threats of excommunication. Women are abstaining from coming out in large numbers in support of the reservations fearing increased chaos and tensions.

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[1] .  Relevant extract of Article 371A - Special provision with respect to the State of Nagaland:

(1) Notwithstanding anything in this Constitution,

(a) no Act of Parliament in respect of

(i) religious or social practices of the Nagas,

(ii) Naga customary law and procedure,

(iii) administration of civil and criminal justice involving decisions according to Naga customary law,

(iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides;

      

[2] .  Those rights, mentioned in Article 371A of the Constitution, which is the core of the demands by agitators, have not been codified or explained further. There is scope for ambiguity and misinterpretation. Article 371A should not be tampered with but it must be seen in the ambit of the entire Constitution. It cannot supersede other rights such as equality of all before the law. Does it mean that one group's rights are greater than those of others? That traditional rights protect the rights of men but not of women? There is another question: do traditional rights surely apply to what are recognisable and accepted as traditional bodies, but not to creatures of the Constitution or a colonial legacy?  Municipal bodies are by no means a traditional system.  They are barely a few decades old (says Sanjoy Hazarika, Director of the Commonwealth Human Rights Initiative).

[3].  Article 243T - Reservation of seats:

(1)  Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality

(2)   Not less than one third of the total number of seats reserved under clause ( 1 ) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes

(3)   Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality

(4)  The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide

(5) The reservation of seats under clauses ( 1 ) and ( 2 ) and the reservation of offices of Chairpersons (other than the reservation for women) under clause ( 4 ) shall cease to have effect on the expiration of the period specified in article 334

(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens

THOUGHT ON REIGNITED DEBATE ON "OPEN BALLOT VS SECRET BALLOT” QUA CONFIDENCE/NO-CONFIDENCE MOTION IN THE AFTERMATH OF TAMIL NADU ASSEMBLY RUCKUS

Oft-quoted constitutional provisions enshrined in Articles 86[1] and 175[2] nowhere envisages a “secret ballot” to choose a Leader of the House or to support/oppose a confidence/no-confidence motion for/against a Council of Ministers in the Legislative Assembly. The very idea of “secret ballot” for this purpose falls foul of Para 2, sub para 1 (b) of the 10th schedule of the Constitution[3] (incorporating the binding dictate of the whip) and thus ravishes the spirit of the anti-defection law.

It is true that in Rameshwar Prasad Chaurasia Case of 2006 (Bihar Assembly Dissolution Case), the Supreme Court of India observed to the effect that “The Governor must not be allowed to take the plea that no Government can be formed, unless he exhausts all possible options, INCLUDING THE ONE OF THE ASKING THE HOUSE ITSELF TO ELECT ITS LEADER”. However, no mention of “secret ballot” in the said judgment.

In the much touted case of Jagdambika Pal vs Union Of India And Ors. of 1998 (UP Assembly Case), the Supreme Court said that there should be a composite floor-test in the House, and it should be peaceful without disturbance. The floor test happened. The test involved each member casting a vote declaring his support to either candidate and signing on the ballot paper. In all, 422 votes were cast, but one member deviated from the prescribed procedure and instead of signing on the ballot paper, he put a tick mark against Kalyan Singh’s name. Therefore, his vote was not counted. Thus, no votes that were without a name and signature were admitted.

NOTE:

a). SECRET BALLOTS FOR CHOOSING HOUSE OF LEADER - INNOVATION IN HORSE-TRADING AND WHAT'S NOT POSSIBLE THROUGH OPEN BALLOT WILL BE MADE POSSIBLE THROUGH SECRET BALLOT.
b). Confidence vote through secret ballots would be death knell for multi-party parliamentary democracy.
c). THUGS will hold every PM/CM to ransom.

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[1] . Article 86 in The Constitution Of India

86. Right of President to address and send messages to Houses

(1) The President may address either House of Parliament or both Houses assembled together, and for that purpose require the attendance of members

(2) The President may send messages to either House of Parliament, whether with respect to a Bill then pending in Parliament or otherwise, and a House to which any message is so sent shall with all convenient dispatch consider any matter required by the message to be taken into consideration.

[2].  Article 175 in The Constitution Of India 1949

175. Right of Governor to address and send messages to the House or Houses

(1) The Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members

(2) The Governor may sent messages to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent shall with all convenient dispatch consider any matter required by the message to be taken into consideration

[3] .  Tenth Schedule in the Indian Constitution

 Clause 2. Disqualification on ground of defection.—(1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House— (a) if he has voluntarily given up his membership of such political party; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

MUSING ON THE ABATEMENT OF APPEAL IN THE SUPREME COURT AGAINST LATE J JAYALALITHA IN A DA CASE EVEN REGARDING IMPOSITION OF FINE OF RS 100 CRORE AGAINST HER BY THE TRIAL COURT

Complaint/FIR in 1996 – charge sheet by Police in 1997 – Charges framed by Trial Court – the Trial Court on September 27, 2014 convicted and sentenced Ms J Jayalalitha  for four years and with a fine of Rs.100 crore, and three other persons including Ms Sasikala Natrajan for four years each and with  a fine of Rs.10 crores each – in appeal the High Court acquitted all of them – appeal in SC - the Hon’ble SC gave patient hearing to all the parties. Arguments concluded. Written submissions taken on record. Judgment was reserved on the 7^th June, 2016. Liberty was granted to the learned counsels for the parties to file final written submissions/compilation of judgments, if any, by 10th June, 2016 - On 5^th December 2016, Ms J Jayalalitha passed away and, thus in law by virtue of Section 394(1) of CrPC, the appeals against her stood abated - the Hon’ble SC, on February 14, 2017,  set aside the judgment and order of the High Court and affirmed and restored the judgment of the Trial Court in toto against remaining three persons.

(Moot point is whether the abatement of appeal vide Section 394(1) of CrPC  against Late J Jayalalitha was right even wrt fine of Rs 100 crore imposed by the Trial Court inasmuch as that she got a full and effective hearing from Trial Court to Supreme Court during her life time? The Judgment was reserved by Hon’ble SC on 7^th June 2016 after a patient hearing to all parties after taking on record the written submissions. Liberty was also granted to the learned counsels for the parties to file final written submissions/compilation of judgments, if any, by 10th June, 2016. About 6 months thereafter, on 5^th December 2016, Ms J Jayalalitha passed away unfortunately. She left behind colossal corpus of properties. The Hon’ble SC gave final verdict on February 14, 2017 affirming and restoring the judgment of the Trial Court in toto against remaining three persons. Should not some blame lie at the door of the Hon’ble SC for making an inordinate delay in pronouncing the verdict? It may not be wholly out of place to note that according to Section 394(2) CrPC no appeal from a sentence of fine shall abate on the death of appellant)

NOTE: 

TC conviction order swallowed by HC acquittal order - appeal in SC abated and thus no order much less an adverse order against her by the SC. Consequent thereupon, HC acquittal order still stands and there is no revival of TC order – thus in the eyes of law, Late JJ is untainted.

POST SCRIPT: 21 March 2017

Karnataka Government moves SC seeking review of judgement exonerating the estate of late JJ from payment of fine of Rs 100/- crore because of abatement of appeal against her.
(“If a party dies after the conclusion of the arguments and the judgment is reserved, there is no question of abatement of appeal and that the judgment subsequently pronounced shall have the same force and effect as if the same was pronounced before the death took place...there are no provisions either in the Constitution or in the Supreme Court Rules, 2013 for such abatement of appeal. On the other hand, the Supreme Court Rules, 2013 provide that both in case of civil appeals as well as election petitions there will be no abatement if the death takes place after conclusion of hearing.....though a plea for jail sentence has become infructuous now, the Supreme Court should have nevertheless ordered that the Rs. 100 crore fine imposed on Ms. Jayalalithaa by the trial court be paid. The fine should have been recovered from her estate....even though the question of A 1 (Jayalalithaa) undergoing further imprisonment does not arise, sentence to pay fine is legally sustainable which has to be recovered from the estate. This is particularly so where the offence alleged is of illegally acquiring disproportionate assets. Therefore, the finding that the appeal has abated is not correct....a criminal appeal involving offences under the Prevention of Corruption Act stand on a slightly different footing where the allegation is of acquisition of disproportionate assets by a public servant... In the circumstances, though the death of the accused no 1 [Jayalalithaa] renders sentence of imprisonment infructuous, the question whether any fine is liable to be imposed as also confiscation of illegally acquired property will survive for consideration,” the review petition contends)

ROUND-UP OF CHEQUERED HISTORY OF THE CASE SPANNING OVER 21 YEARS

   

-       Complaint against Ms J Jaylalitha for amassing disproportionate wealth during her term as CM of Tamil Nadu during the check period from 01.07.1991 to 30.04.1996  by Dr. Subramanian Swamy (then President of Janata Party) on June 14, 1996 in the Court of Principal Sessions/Special Judge, Madras  , under Section 200 of Cr.P.C.

-       By order dated 21.06.1996, the Principal Sessions Judge/Special Judge, Madras directed investigation under Section 17 of 1988 Act and Section 202 of Cr.P.C. and further directed to collect necessary materials and submit a report before the Court within a period of two months.

-       Said investigation stayed by the Madras HC  for a brief period and thereafter the High Court directed the Director of Vigilance and Anti Corruption, Madras to take appropriate steps to investigate into the allegations made in the complaint and ultimately on September 18, 1996, an FIR was filed against Ms J Jaylalitha (A1)  under  Sections 13(1)(e) and 13(2)  of the Prevention of Corruption Act, 1988 Act.

-       The incriminating evidence collected during such investigation disclosed the complicity of Ms Sasikala Natarajan (A2), V.N. Sudhakaran (A3) i.e. Sasikala’s nephew and Jayalalitha’s foster son and  J. Elavarasi (A4) i.e. Sasikala’s sister-in-law in the alleged offence. Hence, an application was filed before the Special Judge on 22.01.1997 for addition of A2, A3 and A4 as co-accused and for incorporation of additional offences under Section 120-B of IPC read with Sections 13(2) and 13(1)(e) of 1988 Act and Section 109 of IPC.

-       On completion of such investigation, IO laid the charges against all the accused on 4.6.1997 which was duly registered as Spl. C.C. No.7/97 on the file of the IX Additional Sessions Judge, (Special Court, I), Chennai. Thereafter, the Court framed the charges against all the above accused persons.

-       The charges were denied by the accused persons.

-       During the pendency of the trial, the Court permitted further investigation under Section 173(8) of Cr.P.C. and granted letters rogatory for collecting evidence and materials relating to the alleged accumulation of disproportionate assets/wealth by A1 in conspiracy with A2 outside the Country. On the basis of the evidence collected during further investigation, a separate FIR in Crime No.2/AC/2000 was filed by the prosecution on 2.9.2000 against A1 and A2 which culminated into a charge-sheet dated 23.3.2001 registered as Spl.C.C. No.2/2001.

-       Subsequent thereto prosecution evidence was recorded from time to time. Thereafter, steps were taken under Section 313 Cr.P.C. So far as A1 was concerned, she was permitted to answer a questionnaire which was delivered to her with a direction to answer it on 25.2.2003, which was adhered to by A1. A2 to A4 were also questioned as per Section 313 Cr.P.C. which was duly concluded on 26.2.2003. Thereafter, defence witnesses were examined.

-       Thereafter, by its judgment dated 18.11.2003 in Transfer Petition (Criminal) Nos.77-78/2003 moved at the instance of Sh. K Anbazhagan (General Secretary, DMK) on Feb 28, 2003, the Supreme Court transferred the said matter to the State of Karnataka and in terms of the said judgment, the Government of Karnataka by its order dated 27.12.2003 duly accorded sanction for establishment of the Special Curt at Bangalore and by Notification dated 19.02.2005, duly appointed Shri B.V. Acharya, Senior Advocate and former Advocate General of Karnataka as Public Prosecutor to conduct the said matter.

-       Thereafter, the said matter bearing Spl.C.C. No.7/1997 was renumbered as Spl.C.C. No.208/2004 and Spl.C.C. No.2/2001 was renumbered as Spl.C.C. No.209/2004 on the file of the Special Judge (i.e. 36th Addl. City Civil & Sessions Judge at Bangalore. Subsequent thereto certain steps were taken on behalf of the accused and the matter travelled up to this Court/Supreme Court whereafter the trial was resumed before the Special Judge. The accused were called upon to examine their witnesses and subsequently 99 witnesses were produced before the Court and concluded their evidence.

-       On September 27, 2014, the Court of Special Judge, Banglore convicted all the accused persons and after hearing the learned counsel awarded the following sentence against the accused persons:

“For the offence u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of the 1988 Act, A1 Selvi. J. Jayalalitha was sentenced to undergo simple  imprisonment for a period of four years and a fine of Rs.100 crores. In default to pay the fine amount, she was to undergo further imprisonment for one year. For the offence punishable u/Sec. 120-B I.P.C., R/w. Sec. 13 (2) of 1988 Act, A1 was sentenced to undergo simple imprisonment for six months and to

pay fine of Rs.1 lakh. In default to pay the fine, she was to undergo further imprisonment for one month. For the offence punishable u/Secs. 109 of I.P.C., R/w. Sec. 13 (2) of 1988 Act, A2 Tmt. Sasikala Natarajan, A3 Tr. V.N. Sudhakaran and A4 Tmt. J. Eavarasi were sentenced to undergo simple imprisonment for a period of four years each and to pay fine of Rs.10 crores each. In default to pay the fine amount, A2, A3 and A4 were each to undergo further imprisonment for one year. For the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13 (2) of 1988 Act, A2, A3 and A4 each were sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.10,000/- each. In default to pay the fine amount, A2, A3 and A4 were each to  undergo further imprisonment for one month. Substantive sentences of imprisonment were to run concurrently. Period of custody already undergone by the accused was be given set off u/Sec. 428 of Cr.P.C. It was  further ordered that, necessary direction were to be issued to the concerned banks to remit the proceeds of the Fixed Deposits and the cash balance standing to the credit of the respective accused in their bank account and the proceeds thereof were to be appropriated and adjusted towards the fine amounts. If after adjustment, still the fine fell short, the gold and diamond ornaments seized and produced before the Court (after setting apart 7040 grams of gold with proportionate diamond jewellery), as observed in the body of the judgment were to be sold to RBI or SBI or by public auction to make deficit of fine amount good. The rest of the gold and diamond jewellery were to be confiscated to the Government. All the immovable properties registered in the names of Lex Property Developments Pvt. Ltd., Meadow Agro Farms Pvt. Ltd., Ramaraj Agro Mills Pvt. Ltd., Signora Business Enterprises (P) Ltd., Riverway Agro Products (P) Ltd., and Indo Doha Chemicals and Phramaceuticals Ltd., which are under attachment pursuant to G.O. Nos. M.S. 120 and 1183, were be confiscated to the State Government. Out of the fine amount recovered as above, a sum of Rs.5 crores was to  be made over to the State of Karnataka towards reimbursement of the cost of trial conducted in the State of Karnataka”.

-       Being aggrieved, appeals were filed by the accused before the High Court of Karnataka at Bangalore challenging theorder passed by the Court of 36th Addl. City Civil & Sessions Judge at Bangalore. The High Court on its analysis came to the conclusion that the value of assets at the end of the check period in respect of accused Nos.1, 2, 3 & 4 together along with the firms/companies involved was Rs.66,44,73,537/- and accepted the value of the assets as indicated by the prosecution. The High Court arrived at a disproportionate assets of 8.12%  and following the principles laid down in Krishnanand Agnihotri Vs. The State of Madhya Pradesh, AIR 1977 SC 769 = (1977) 1 SCC 816,  held that when there is disproportionate asset to the extent of 10% or below, the accused are entitled to acquittal and accordingly the High allowed the Criminal Appeals and the Judgment of Conviction and Sentence passed was set aside and Appellants-Accused Nos.1 to 4 were acquitted of all the charges levelled against them. Order of the Trial Court relating to confiscation of the properties both movable and immovable was also set aside.

-       Assailing the judgment and order dated 11.05.2015, passed by the High Court of Karnataka at Bengaluru, appeals, by special leave, were filed before Supreme Court by the State of Karnataka and Mr. K. Anbazhagan on June 23, 2015. An Intervention application was also filed by original complainant Dr. Subramanian Swamy.

-       The Hon’ble SC gave patient hearing to all the parties, including the intervenor, in the matter. Written submissions  and compilation of judgments were also taken on record. Arguments thus concluded and Judgment was reserved on the 7^th June, 2016. Liberty was granted to the learned counsel for the parties to file final written submissions/compilation of judgments, if any, by Friday, the 10th June, 2016.

-       On 5^th December 2016, the respondent No.1 (Ms J Jaylalitha) expired and, thus in law by virtue of Section 394 of CrPC, the appeals against her stood abated. Section 394(1) inter alia envisages abatement of appeal filed under Section 378 in case of acquittal.

-       Nevertheless, in view of the gamut of the imputations and the frame-work of the charges as well as the nature of the evidence, oral and documentary, available on records, reference to her (respondent No.1 Ms J Jaylalitha ) role and involvement, based thereon in collaboration with other respondents was thoroughly examined.

-       After traversing through various documents and the evidence of the parties, the Hon’ble SC, on February 14, 2017,  set aside the judgment and order of the High Court and affirmed and restored the judgment of the Trial Court in toto against A2 to A4. However, though in the process of scrutiny of the facts and the law involved and the inextricable nexus of A1 with A2 to A4, reference to her (accused No. 1 Ms J Jaylalitha) role as well as the evidence pertaining to her had been made, she having expired meanwhile, the appeals, so far as those relate to her stood abated. Nevertheless, to reiterate, having regard to the fact that the charges framed against A2 to A4 were proved, the conviction and sentence recorded against them by the Trial Court is restored in full including the consequential directions. The direction of the Trial Court towards confiscation/forfeiture of the attached properties was restored. 

Resignation from a constitutional office cannot be withdrawn after acceptance if it was not intended to be prospective in effect

Resignation from a constitutional office cannot be withdrawn after acceptance if it was not intended to be prospective in effect. (SC's Constitution Bench in Union Of India vs Shri Gopal Chandra Misra And Ors, 15 February, 1978)

1. Resigning office necessarily involves relinquishment of the office which implies cessation or termination of, or cutting asunder from the office. A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates its tenure.

2. In the absence of a legal, contractual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective i.e., before it effects termination of the tenure of the office/post or employment. This is general rule equally applies to Government servants and constitutional functionaries.

3. In the case of a Government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority.

4. In the case of a Judge of a High Court, WHO IS A CONSTITUTIONAL FUNCTIONARY and under Proviso (a) to Article 217(1) of the Constitution has a unilateral right, or privilege to resign his office. His resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesanti, the resignation terminates his office- tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal.