Fresh Preliminary Inquiry Ordered Against Former CM Edappadi Palaniswami Only Because Of Change In Govt, Not Due To Fresh Material: Madras High Court

Dismissing the petition, Justice Anand Venkatesh observed that the earlier preliminary enquiry conducted by the DVAC, which did not find any materials to proceed against Palaniswami, was not unreasonable to necessitate another preliminary enquiry afresh. 

“There is no doubt in the mind of this Court that the first respondent took a volte-face on account of change of government and things started moving in the year 2023. In none of the communications that was placed before this Court, there is even a reference that the earlier preliminary inquiry report is not in conformity with law or that it is unreasonable or that some new materials have cropped up to order for a fresh inquiry. Hence, this Court holds that the preliminary inquiry has been directed to be held afresh only for the reason that the other political party has come into power. The political agenda of an individual or a political party should not be subversive of the rule of law,” the court observed.

In the present case, the High Court had earlier allowed the petition filed by former DMK MP RS Bharathi seeking investigation against the former CM and directed the DVAC to handover the investigation to the CBI. When Palaniswami and the DVAC moved separate appeals, the Supreme Court set aside the order and directed the High Court to consider the matter afresh. The Apex Court had noted that the single judge had not even perused the preliminary report that was submitted by the DVAC nor had the court impleaded Palaniswami before transferring investigation to the CBI.

Following this, when the High Court took up the matter, the State Public Prosecutor informed the court that the earlier Preliminary report which was submitted by the Director of Vigilance and Anti- Corruption was rejected by the Vigilance Commissioner and a fresh enquiry had been ordered.

Though based on this development, Bharathi submitted that he may be allowed to withdraw the petition, the same was objected to by Palaniswami who argued that the Supreme Court had specifically directed the High Court to consider the matter afresh and thus there was no scope for permitting withdrawal. It was also argued by Palaniswami that just because a favourable political climate was prevailing in the State, Bharathi should not be allowed to change his stand. He also requested the court to go through the preliminary report and satisfy itself with the reasons assigned for submitting a closure report.

The court, on perusing the preliminary inquiry report, found that the five allegations made against Palaniswami were independently dealt with and based on materials, the Enquiry officer had come to the conclusion that there was no sufficient and tangible evidence to substantiate the allegations and that there was no favouritism or abuse of public office by Palaniswami.

The court noted that this preliminary report was initially accepted by the Director of Vigilance and Anti-Corruption which was evident from the SLP filed before the Supreme Court. The court noted that the Government had, without assigning any reasons, ordered for a fresh preliminary enquiry. This, according to the court, was only due to a change in the political power in the State.

“Without any change in the circumstances, except for the change in the government during the year 2021, the Government cannot now direct for a preliminary inquiry afresh by disregarding the earlier report, which was, in fact, accepted by the first respondent and the then Government. In the eye of law, there is only one State Government and it is immaterial as to which political party takes over the power. Therefore, for all purposes, a decision taken by the Government should stand and it cannot be reversed without any valid reasons, especially for a change in guard,” the court noted.

Separation of Power In The Hands Of Executive Is Almost Non-Existent

The court also noted that though the forefathers of the Constitution expected the three limbs of the Constitution to work independently and act as a check and balance over the other, in the present set up, the Executive had lost its independence and had turned into an organ, executing the orders of the political party in power.

“It is almost 73 years since the Constitution of India started governing this country and the harsh reality is that the Executive has almost lost its independence and it has virtually turned into an organ merely executing whatever is said/dictated/ordered by the political party, which is in power during the relevant point of time,” the court said.

It also said the political parties have manipulated the system.

“Over a period of time, the political parties have carefully manipulated the system to such an extent that they have a complete control over the Executive. Every time when there is a change in guard, the entire Executive set up also changes to ensure that organ toes the dictates of the government in power. Therefore, in reality, the separation of power that is in the hands of the Executive is almost non-existent,” the court observed.

The court noted that in the present case, the DVAC was an independent body belonging to the Executive organ of the State. However, the only reason why it had taken a different stand and had asked the government regarding action to be taken against Palaniswami was only due to the change in the power dynamics, it added.

Courts Becoming Playground for Political Parties

The court noted that Courts have become playground for political parties to score points.

“In cases of this nature, the Court is like a playground where the ruling and opposition party try to score a point for their own political games. Ultimately, the order passed by the Court will only become a subject matter of a talk show in the television channels, which will be discussed with a lot of hue and cry where the participants will scream at the top of their voice supporting one party or the other and ultimately, it will all get consigned to nothing,” the court said.

Thus, finding no apparent illegality in the preliminary inquiry report and no reason for conducting another preliminary inquiry afresh, the court dismissed the petition. It further noted that the only appropriate remedy for Bharathi was to approach the Magistrate.

Case Title: RS Bharathi v. The Director of Vigilancce and Anti Corruption and another

Citation: 2023 LiveLaw (Mad) 200

Counsel for the Petitioner: Mr.N.R.Elango, SC for Mr.R.Girirajan

Counsel for the Respondents: Mr.Hasan Mohamed Jinnah State Public Prosecutor, Mr.C.Ariyama Sundaram, Senior Counsel for Mr.K.Gowthamkumar & Mr.M.Mohamed Riyaz