Tamil Nadu's Deepening Political Crisis Threatens Fate of Litigants, Government in Courts

As O. Panneerselvam and V.K. Sasikala continue to vie for party loyalty, there is trouble brewing for Tamil Nadu's courts.

The spillover of the deepening political crisis in Tamil Nadu has started reaching the doorsteps of the courts in the state. Government law officers in the courts across the state are in a spot as they don’t know from whom they should take instructions. Though there are hundreds of lower courts – from sub courts and magistrate courts to sessions courts – in the state, the worst affected is the high court. The Madras high court, with its principal seat in Chennai and a bench in Madurai, has 57 judges altogether.

The worsening political crisis in the state showed its ugly face in the Madras high court on Thursday, January 9, when a habeas corpus proceeding relating to the allegations of illegal detention of AIADMK MLAs came up for hearing. The petitioners prayed to the court to direct the authorities to ensure the release of the MLAs, whom they submitted were in the custody of those opposing chief minister O. Panneerselvam. During the arguments, the additional public prosecutor representing the Tamil Nadu government told the court that no one was illegally detained and all the AIADMK MLAs were staying in the MLAs’ hostel in Chennai. This submission was made at a time when dozens of news channels were reporting that the MLAs were taken to a resort outside Chennai, with TV channels showing visuals of it. Channels were also taking bites from villagers outside the resort about how jammers had been installed around the hotel blocking mobile signals in their area.

“This is an interesting situation. The petitioners want MLAs to be released from the captive and the channels were reporting that they were all outside Chennai and in a resort in the adjoining Kancheepuram district. These petitions were indirectly supporting the claim of chief minister Panneerselvam and his supporters that the MLAs are held as captive. But the prosecutor’s stand in the high court went against the interests of the head of the state whom he represents. This is unheard of in the history of Tamil Nadu since independence,” said a senior counsel with over four decades of practice in the Madras high court.

Another government lawyer on condition of anonymity told The Wire, “I don’t know what to do. I don’t know whom to represent, whether the chief minister or the other side. All the ministers are now with Sasikala and the chief minister is on the other side. Generally we will take instructions from the concerned secretaries of the departments, but now the secretaries themselves are in a quandary”.

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The Madras high court has over 100 law officers both at its principal seat in Chennai and at its bench in Madurai. This includes an advocate general, seven additional advocates general, a government pleader, a public prosecutor and an additional public prosecutor. A bulk of these lawyers are drawn from the legal wings of the ruling party in the state and this was the practice for ages in Tamil Nadu. Whenever there was a new government, the lawyers would quit their posts.

“But this time it is a new problem. The chief minister is the same; the ruling party is the same. But the chief minister has resigned and continuing only as a caretaker. On the other hand V.K. Sasikala has got herself included in the category of “chief minister in waiting”. There are several lawyers in the government panel who owe their postings to Sasikala and you can imagine the velocity of conundrum here,” R.C. Durai, a practicing lawyer, told The Wire.

Observers warn that the continuation of the crisis will have a cascading effect on the fate of the litigant public and also on the interests of the government. “There are thousands of cases by way of writ petitions, public interest litigations (PILs) and civil or criminal appeals coming up regularly in the Madras high court daily, in which the government is either a petitioner or a defendant. Generally the government lawyer will have to take a clear and strong stand. Now the prevailing confusion is terribly affecting the government’s response,” said A. Ramanathan, a lawyer and political activist.

This confusion has the potential to affect the interests of the general public who are fighting in the courts on issues of great importance. “Ours is a welfare state. There are instances where in the political leadership comes to the rescue of common man by overruling the rigid laws generally emphasised by the bureaucrats. Few years back a slum was about to be demolished in Chennai. The slum was a home for over 100 families. The concerned department and its secretary supported the move ostensibly to help a real estate owner. But suddenly after media coverage the concerned minister intervened and ensured that the demolition did not take place resulting in the families getting a huge relief. It may be for their vote bank the political leadership usually does this but the poorest of the poor were saved. But the present situation in Tamil Nadu gives wide scope for bureaucrats to take a call on important decisions and I think that is very dangerous,” Ramanathan added.

There are others who warn that this situation has the potential to damage public interest in the long run. “It’s not only the interests of few individuals but even public interest or the governments’ interest which may become the casualty in the long run. For example take cases like mining. If there was a PIL against mining in one particular area and when the issue came up for hearing and if the government side did not present it properly then court may rule in favour of the mining companies. Don’t forget these companies always engage top Supreme Court lawyers. As far as the court is concerned they will always go by the materials presented before them and how the lawyers argue and interpret the law. So even a mild ambiguity on the part of the government lawyer, whether it is a wilful one or an ignorant one will surely have serious consequences lasting for ages,” said Prince Gajendra Babu, an educationist and social activist.

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Few lawyers feel that the Tamil Nadu government cannot afford to continue this circus with the judiciary any more. “The cabinet’s decision is unanimous and the cabinet should speak in one voice. But here the Chief Minister has been jettisoned by his own cabinet and the government is speaking not in two voices but in multiple voices. I can go
for as to say that today the state of Tamil Nadu looks like a “split personality in the eyes of the judiciary” says M.Kumaraguru, a senior BJP functionary and a practicing lawyer in the Madras High Court.

He further adds that “there were thousands of litigants who were waiting for 30 years to get justice and their cases will be disposed of in few minutes during the hearings in the High Court. Any wrong submission by the Government side out of haste or otherwise will have a devastating effect on the fate of those litigants, because generally 90% of those who are losing their cases in the High Courts will not go to the Supreme Court because of the huge costs involved. Just imagine the plight of those poor litigants and I personally feel that this is the genuine danger looming large in the background of this massive political turmoil in Tamil Nadu”.

Meanwhile a division bench of the Madras high court on Friday afternoon directed Kancheepuram district collector to ensure that all those MLAs who were kept in a resort outside Chennai are provided proper food and other essential items. The court directed the government to file a detailed reply in this matter on Monday, February 13. The order came after two PILs charged that the MLAs were kept in captivity by the Sasikala camp.

On the other hand, AIADMK Rajya Sabha MP Dr V. Maitreyan charged that 30 MLAs in the resort are fasting in demand that they be released immediately. Maitreyan is supporting Panneerselvam. In another development, the husband of a MLA complained that he was not able to contact his wife as her whereabouts are not known. Unconfirmed reports suggest that the jammers erected near that resort where MLAs were kept was removed on Friday (February 10) afternoon following protests from the local villagers. It’s not clear how many MLAs were actually kept in that resort.

Meanwhile Sasikala has appointed K.A. Sengottaiyan, a former minister, as the AIADMK’s new presidium chairman after the previous presidium chairman E. Madhusoodanan switched sides to support Panneerselvam on Friday afternoon.