By: V Sundaram, IAS, Retd.
January 29, 2007
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Hon'ble Justice F M Ibrahim Kalifulla has delivered a historic judgment
rendering substantive justice to the unmourned, unhung and unsung common
man in Chennai by ordering fresh elections to 99 wards out of 155 wards
and directing the State Election Commission (SEC) to recall election
certificates issued to candidates elected from these wards. The matter has
been referred to Hon"ble Chief Justice A P Shah for appropriate orders.
Through his judgment, Mr Justice Kalifulla has given cubic content to the
immortal words of Justice Felix Frankfurter: "Judges are not merely the
habitations of bloodless categories of the law which pursue their
pre-destined ends". Instead of taking a sterile, bloodless and neutrally
neutral view between good and evil, he has categorically declared: "In a
democratic set up holding of elections in a free and fair manner assumes
great importance". He has referred to the word of caution given by the
Supreme Court of India to the effect that successful candidates who had
resorted to foul methods should not be allowed to reap the benefits. He
has also stated that he was convinced that "there was an extreme and
extraordinary situation", which warranted an extraordinary remedy in view
of the magnitude of the situation. He has concluded that it would be
wholly inappropriate if fresh elections were not ordered to a majority of
the wards. By his verdict setting aside the civic elections in 99 wards
out of 155 wards, Mr. Justice Kalifulla has demonstrated that another
great American Judge and Jurist Benjamin N Cardozo (1870-1938) was
absolutely right when he stated: "The great tides and currents which
engulf the rest of men, do not turn aside in their course, and pass the
Mr Justice Kalifulla in his judgment has expressed concern that it is
unfortunate that the State Election Commission did not raise even its
little finger though an extraordinary situation was unfolding on 13
October, 2006, when the civic election to Chennai Corporation was being
held. He has passed severe strictures against the State Election
Authority. In his judgment he has declared that the stand and attitude of
the State Election Commissioner (SEC) was "highly irresponsible" and that
he had "miserably failed in the discharge of his function". The
law-abiding citizens of Chennai had a lurking suspicion right from the
beginning that the State Election Commission needlessly functioned as a
branch office of the DMK Party from the day on which the elections were
notified. This suspicion has now been confirmed by the Judgment of Mr.
Severely indicting the SEC"s failure to give even the minimum details
about the steps taken by him either to control rigging and booth capturing
or restore normalcy to ensure the conduct of free and fair polls on 13
October, 2006, the Hon"ble Judge has said: "to say the least, the stand of
the SEC can only be construed as a highly irresponsible one and was not in
the interest of protecting democracy. Instead, it can only be stated as an
indifferent attitude displayed without realizing the responsibility
reposed on him".
In conclusion, Mr. Justice Kalifulla said that the SEC had thoroughly
failed to come up to the expectation and that he had displayed a totally
indifferent attitude for reasons best known to him and thereby failed to
ensure a free and fair poll. To quote his words once again: "Every one of
the incidents and details, besides the failure of the SEC to react to the
situation, contributed to an extreme and extraordinary situation and it
called for an extraordinary remedy. It will have to be held that there was
no free and fair election on 13 October, 2006".
The enlightened public in Chennai are fully aware of the fact that the SEC
functioned only as a spokesman for the ruling DMK party and not as an
impartial public election authority. All the complaints made to the SEC
were either ignored or treated with contempt or were simply forwarded to
the Commissioner of Police, who in turn showed no better perception than
that shown by the SEC.
In regard to the complaints of snatching of ballot papers and rigging, the
SEC had come forward with a simple categorical denial of the allegations
and had stated that such incidents had been blown out of proportion. Mr.
Justice Kalifulla has wondered as to how the SEC could come forward with
such a blatant denial.
Mr. Justice Kalifulla has also criticized the Director General of Police
and the Commissioner of Police for having taken the pre-meditated view
that the violent and ugly incidents were only "sporadic". To quote the
exact words of Mr Justice Kalifulla: "I am constrained to state that such
a stand taken by these police authorities was far from truth and did not
reveal the correct state of affairs". The High Court has come to the right
conclusion that the police officials on par with the SEC failed in the
performance of their statutory functions.
Soon after the civic elections, Union Panchayati Raj Minister Mani Shankar
Aiyar had described as "aberrations," the difficulties faced in holding
"free and fair" panchayat elections in Tamilnadu. He pointed out that
enquiries had been ordered into the incidents.
All the major English and vernacular newspapers in India had carried
detailed reports and graphic pictures about the violent and ugly incidents
that marred the Chennai Corporation Council elections. The SEC and the
Tamilnadu Government treated these incidents as minor episodes which had
taken place in a remote district in Central China or Iceland! All the
newspapers had exposed in one ringing voice the massive rigging of
elections on an unprecedented scale in Chennai City. It was reported that
in a precisely planned operation, supporters and henchmen of the ruling
Dravida Munnetra Kazhagam (DMK) drove out poll officers and party agents
at knife point, captured polling booths and the ballot boxes with ballot
papers and voted for their party candidates. Candidates of the rival All
India Anna Dravida Munnetra Kazhagam (AIADMK) and Marumalarchi Dravida
Munnetra Kazhagam (MDMK) or even an ally like the Communist Party of India
(Marxist), who resisted, were assaulted. D. Pandian, State secretary of
the CPI, called it "a misguided adventure" while G Ramakrishnan, CPI(M)
State secretariat member, described the incidents as "a planned
In a strongly worded statement, N Varadarajan, State secretary of the
CPI(M), called the incidents "shocking" and charged that some DMK
candidates and legislators led "armed, professional rowdy groups" to
capture polling booths. False cases under non-bail able offences were
booked against CPI(M) district committee leaders like Devi. Complaints to
SEC officials were of no avail.
There were widespread demonstrations by almost all political parties
against the planned rigging of elections by the DMK Party. Cadres of the
Communist Party of India (Marxist) staged a demonstration at Dindigul
condemning the violence during local body elections in Chennai. They
demanded stern action against those involved in it. K Balabarathi, MLA,
said that the violence was a "murder of democracy". Though the CPI (M) was
part of the Democratic Progressive Alliance, it would not tolerate such
anti-democratic incidents. She described it as pre-planned violence and
alleged that persons had been mobilized from different parts of the State
to commit atrocities.
Against this known background, the historic judgment of Mr Justice
Kalifullah comes as a great relief to the frustrated, innocent and law
abiding voters of Chennai City. Reading the inspiring judgment of this
great judge, I am reminded of another landmark judgment given by Chief
Justice William Murray, Lord Mansfield in 1770 in England. In this
judgment, he came out with the following inspiring words: "I will not do
that which my conscience tells me is wrong, upon this occasion, to gain
the huzzas of thousands, or the daily praise of all the papers which come
from the Press. I will not avoid doing what I think is right, though it
should draw on me the whole artillery of libels; all that falsehood and
malice can invent, or the credulity of a deluded populace can swallow".
V Sundaram, IAS, Retd.
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