The election manifesto of the Indian National Congress has been a subject of intense debate and scrutiny since the day it was released. One of the standout aspects of this manifesto, and the one which is of most relevance to Tamil Nadu, is the emphasis on federal principles.
It, thereby, marks an important historical departure from previous Congress manifestos and reshapes the party’s position on states’ rights. By doing so, it has set the stage for a larger, wide ranging discourse on federalism.
Chapter 27 of the manifesto, Federalism and Centre-State Relations, is dedicated to the doctrine of decentralization of powers. This section includes important promises including the devolution of powers to states with regard to school education, healthcare, child nutrition, drinking water and sanitation, as well as setting up of inter-state ministerial groups on agriculture, education and healthcare along the lines of the Goods and Services Tax council.
The manifesto also promises statutory council for Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli. There is also a special mention with regard to Puducherry and Delhi. Andhra Pradesh has been promised ‘Special Category Status’ whereas North Eastern States have been assured a number of special provisions including enhanced financial assistance to autonomous district councils and withdrawal of the Citizenship Amendment Bill.
Though there is no direct concession for Tamil Nadu, a couple of issues are note-worthy. First, a historical demand of the state for return of school education back to the State List of the Seventh Schedule of the Constitution will be acceded to. One of the most contentious issues in recent times – National Eligibility and Entrance Test (NEET) – has been treated from the perspective of state autonomy. Chapter 45 of the manifesto says the interference of NEET with regard to “the state government’s right to admit students domiciled in the state to medical colleges” is acknowledged. In this spirit, the manifesto promises to dispense with NEET and replace it with a “state-level examination of equivalent standard, approved by the competent authority for admission to medical colleges”.
The manifesto of the DMK, which leads the Secular Progressive Alliance in the state, prioritizes federalism and state autonomy. While this is not unusual for the DMK, it is a first for the Congress. 2009 and 2014 manifestos make only cursory mentions of federalism and there are no cogent action points with regard to decentralization.
Under such circumstances, the 2019 manifesto marks a stark departure in tone and tenor of the Congress with regard to federalism. Moreover, the synergy between the DMK and the Congress manifesto with regard to the return of state education to the state list and removal of NEET is apparent. In the lead up to 2026, when issues surrounding fresh delimitation, Finance Commission and decentralization of powers will take precedence, a new national deliberation on federalism is needed; and the Congress manifesto paves way for this. It is possible that when such a discourse is held, Tamil Nadu will lead the way.
Through the recent judgment in A.G. Perarivalan vs. State & Anr. (2022), the Supreme Court of India has fortified the federal architecture laid down in the Constitution of India. While doing so, the court has reaffirmed its position as a vigilant sentinel on the qui vive, guarding against constitutional laxity of Governors. This has now set the course for institutional reforms with serious implications for prisoner release, gubernatorial duties and judicial oversight. As such, the judicial directions issued in this matter will be seen as a turning point in modern constitutional jurisprudence.
Governor vs. Government
The Constitution endows Governors of States with the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute any sentence where the person serving the sentence has been convicted under an offence of any law, under the purview of the executive power of the State. In the A.G. Perarivalan case, the Supreme Court has settled the law, holding that exercise of the constitutional power of pardon must be in accordance with the aid and advise of the Council of Ministers. The Supreme Court has reiterated that the Governor has no discretion in such matters and, furthermore, recognized that any governmental order effecting commutation and granting release of a prisoner can even be issued without the explicit consent of the Governor. Therefore, it is nothing more than a matter of constitutional courtesy to seek the Governor’s approval in such cases.
The controversy surrounding A.G. Perarivalan case is that upon commutation of his prison sentence from death to life in 2014, he had filed a petition before the Governor of Tamil Nadu seeking pardon under Article 161 on 30 December 2015. The petition was pending before the office of the Governor when Perarivalan approached the Supreme Court challenging some orders of the Madras High Court. It was at this point, on 6 September 2018, that the Supreme Court Bench led by Justice Ranjan Gogoi enquired as to what the stand of the Governor was. Sensing positive traction in this matter, the Council of Ministers of the Government of Tamil Nadu at the time, under the Chief Ministership of Edappadi K. Palaiswami, passed a resolution on 9 September 2018 to pardon seven prisoners, including Perarivalan. Over the next fifteen months, no decision was forthcoming from the Governor of Tamil Nadu and when the matter was subsequently heard by the Supreme Court, on 4 February 2021, the Union of India informed the Court that the Governor had forwarded the file seeking pardon to the President of India. It is this cumulative inaction over the fifteen-month period and unlawful action of the Governor in forwarding the Cabinet Resolution to the President that ultimately drew the ire of the Supreme Court and culminated in the release of Perarivalan under Article 142 of the Constitution.
Extraordinary Article 142
Article 142 of the Constitution, an extraordinary power vested exclusively with the Supreme Court, allows the highest court to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it”. This power has been used sparingly but with great effect to ensure that impediments to securing “complete justice” are removed without resorting to procedural technicalities associated with courts. Though, there was no debate on this particular clause on the floor of the Constituent Assembly when it was adopted on 6 June 1949, one can still infer the intent of the drafters of our Constitution from the discussion on Article 136 (which was draft Article 112) on the same date. Looking at the discussions from that date, it is apparent that the Supreme Court, occupying primacy in the judicial hierarchy, was to be endowed with adequate powers to grant special leave and, furthermore, exercise extraordinary powers to enforce its orders or decrees in the pursuit of complete justice.
This extraordinary power is not totally unique. In the Code of Criminal Procedure, 1973, inherent powers have been granted under Section 482 therein to the High Court to “make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice”. Though this provision of law comes close to the powers under Article 142, it is commonly acknowledged that the power of the Supreme Court is wider in amplitude and unbridled in scope and the last seventy years since, the Supreme Court has exercised this provision in a variety of matters. In the case of Supreme Court Bar Association vs. Union of India (1998), the Supreme Court held that Article 142 gives it “unlimited power”, but this has not been without criticism.
Calibrated Judicial Activism
There have been concerns from the bench and the bar regarding the usage of Article 142 and, in some cases, backlash where there has been judicial over-reach into policy or legislative or executive domain. It is in this context that the A.G. Perarivalan case has provided three key outcomes with wide ramifications. Firstly, the judgment fortifies the federal architecture of the country by reaffirming that “the advice of the State Cabinet is binding on the Governor in the exercise of his powers under Article 161” and that “even though the Governor may be authorised to exercise some functions, under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered to him under Article 163, unless the Governor has been expressly authorised, by or under a constitutional provision, to discharge the function concerned, in his own discretion.” This simply and unequivocally shears Governors of any discretionary role when it has not been specifically provided under the Constitution.
Secondly, the Supreme Court has displayed tremendous alacrity when a constitutional vacuum was sought to be created by the inaction of the Governor. In the A.G. Perarivalan judgment, it has been held that “Non-exercise of the power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to judicial review by this Court”. This proposition builds on an earlier view of the Supreme Court in Keisham Meghachandra Singh vs. Hon’ble Speaker (2020) wherein the inaction of the Speaker of the Legislative Assembly of Meghalaya in trying the disqualification petitions under the Tenth Schedule to the Constitution incurred a specific mandamus from the Court to complete the adjudication process in a time-bound manner. As such, this new-found vigour of the Supreme Court in issuing directions to aid a high sovereign authority to assist them in arriving at a prompt decision is a welcome wake-up call to those who think they are beyond the reach of constitutional accountability.
Finally, those watching the Supreme Court closes in recent months would not have failed to notice that under Justices L. Nageswara Rao and U.U. Lalit, the court has reframed the prison jurisprudence from one of retribution to that of reformation. In a series of judgments over the past six months, we have witnessed the narrative around death penalty evolve in a progressive manner, emphasising significant sentencing reforms. In the present case, Justice L. Nageswara Rao has carefully considered and taken into account Perarivalan’s prolonged incarceration of more than thirty years as well as his conduct in jail and while on parole in addition to his achieving educational qualifications during incarceration, to order his immediate release. This is nothing short of a resounding reaffirmation of the reformative theory in imprisonment and will pave the way for undertaking structural reforms in this domain.
It is not often that a judgment of the Supreme Court has the potential to shift the compass of judicial thinking. But, the case of Perarivalan has done just that. This judgment has come at a crucial time when the federal fabric of this country is being tested on various fronts. By reiterating the earlier view of the Supreme Court that “the Governor is but a shorthand expression for the State Government”, this is a strong vindication of the traditional constitutional position that the Union cannot bulldoze States and that federalism must be construed as part of the basic structure of the Constitution. Also, equally, while plenty of interest in criminal law jurisprudence in the last twenty years has revolved around the rights of victims, the recognition of the rights of prisoners will create a new wave of thinking in how jails are managed. Most significantly, the outcomes from this case will trouble Governors who have hitherto enjoyed power without accountability and steer them towards upholding constitutional principles.
Manuraj Shunmugasundaram
Author is an advocate practising before the High Court of Madras and a Media Spokesperson for the Dravida Munnetra Kazhagam.
Reforming the law is necessary to account for the reporting of historical child sexual abuse.
India, as a signatory to the Convention on Rights of the Child ( especially Art.19 and 34 of the CRC) and to deliver the promises under Art.15(3) and 39 of our Constitution, enacted a specific legislation for sexual offences against children (The POCSO Act) in 2012, apart from amending the provisions of IPC under the Criminal Law (Amendment) Act of 2013. Though the Preamble to POCSO calls for the effective redressal of ‘sexual exploitation’ and ‘sexual abuse’ of children as they are heinous crimes, it still does not define what is child sexual abuse (CSA) let alone the historical child sexual abuse (HCSA). With the surging cases of sexual offences against children and with the movements like ‘Me Too’ where many adult survivors have come out about their sexual abuse as children, it is definitely the time for India, among other countries, to update its terminology handbook.
As per international instruments, CSA includes involving children in sexual activities that they do not fully comprehend, or give informed consent to, or be developmentally prepared; inducing/ coercing children for sexual acts, prostitution, pornography; child solicitation, etc. HCSA is also the same as CSA except that the reporting of the alleged abuse is late/ non-recent; historical abuse is not just confined to institutions but also includes intra-familial abuse where it is difficult for the child to come out and report the same day. By the time they become adults, fully comprehending the gravity of what transpired and confident enough to report, they place the horrors in open air for the accused to be prosecuted and stopped from harming any more soul. The problem herein is where does HCSA fit in with POCSO? Because the definitions in sec.7 and 11 of POCSO are exhaustive, not inclusive; ‘sexual assault’ and ‘sexual harassment’ are defined in a way that nothing short of ‘physical contact’ will under sexual assault and nothing outside the 6 pre-defined scenarios will fall under sexual harassment. This calls for reconsidering, redefining and purposive interpretation of terms under the Act to better serve its object.
The delays in reporting sexual abuse after a considerable lapse of time may be due to other relevant factors like threats by perpetrator, fear of public humiliation, absence of trustworthy person to stand up for in childhood and even the CSA Accommodation Syndrome (where the child initially keeps it a secret but feeling helpless, trapped and afraid that no one will believe the abuse upon disclosure leads to accommodative behaviour). However, with no regard for these just reasons, in reality, the police are hesitant to register cases of adult survivors as there would be only about 0-5% chances for direct physical/medical evidence to try the case. The absence of specific protocol on how best to register, investigate, assess evidence and adjudicate a HCSA case only exacerbates the situation. Like the countries of Canada, UK, USA and Australia, India too shall appoint Independent Inquiry Commissions on HCSA to better grasp the grass root level realities of this horror and issue guidelines like the UK’s Guidelines for Prosecuting Child Sexual Abuse under the Sexual Offences Act 2003 and China’s 2014 Guide on Infringement by Guardians for the stakeholders and for the police to know which direction to go with while investigating a HCSA case.
Also, in 2018, the Law Ministry, at the request of the then Minister for Women and Child Development, clarified that no time limit shall apply for reporting HCSA cases. But this clarification on limitation contradicts Art.20(1) of the Constitution as it does not allow prosecuting perpetrators under an Act that was not in place on the day of the alleged offence. Several pre-2012 incidents were tried only as per sec.354 and the unamended provisions of sec.375, 376 of IPC and not under POCSO. Therefore, a proper legal amendment to sec.19 of the POCSO to accommodate later-day reporting of HCSA cases, will help clarify the legal position in HCSA as against sec.468 of CrPC and Art.20(1) of our Constitution.
Thus, understanding the reasons for delay in HCSA reporting, India shall redefine its law on child sexual abuse, take pro-active steps of issuing Commissions, removing limitation, framing guidelines for the purposive implementation of POCSO Act as justice for survivors before 2012 is as crucial as the justice for those post-2012. And ranked 7th out 60 countries in the ‘Out of the Shadows’ Index (based on response to the threat of sexual violence against children), it is important for India to set its course right for others to follow!
WHO, ‘Guidelines for Medico-legal Care for Victims of Sexual Violence’ (2003), Chapter 7, 75-93.
Murray, Laura K et al., ‘Child sexual abuse’, Child and adolescent psychiatric clinics of North America (2014), 23 : 2 , 321-37.
WHO, ‘Preventing child maltreatment: a guide to taking action and generating evidence / World Health Organization and International Society for Prevention of Child Abuse and Neglect’ (2006).
WHO, ‘Consultation on Child Abuse Prevention’ (1999).
Royal Commission into Institutional Responses to Child Sexual Abuse, ‘The Impact of Delayed Reporting on the Prosecution and Outcomes of Child Sexual Abuse Cases’ (2016).
Jyoti Belur, Brijesh Bahadur Singh, ‘Child Sexual Abuse and the law in India: a Commentary’ (2015), Crime Science 4, 26.
Stephanie D. Block, Linda M. Williams, ‘ The Prosecution of Child Sexual Abuse: A Partnership to Improve Outcomes’ (2019).
Stacia N. Stolzenberg, ‘Children’s Allegations of Sexual Abuse in Criminal Trials: Assessing Defense Attacks on Credibility and Identifying Effective Prosecution Methods’ (2020).
Bingham Adrian et al., ‘Historical Child Sexual Abuse in England and Wales: the Role of Historians’ (2016), History of Education, 45:4, 411-429.
A. Connolly Debohra et al., ‘Remembering Historical Child Sexual Abuse’ (2003), Criminal Law Quarterly 47, 439-480.
The Dravida Munnetra Kazhagam has consistently opposed the concept of EWS quota in its present form, and has called for an all-party meeting in Tamil Nadu to discuss the next steps forward. It has committed to filing a review of the Janhit Abhiyan judgment.
The verdict of the Supreme Court of India upholding the 103rd Constitutional Amendment in Janhit Abhiyan v. Union of India 2022, should be regarded as nothing more than a temporary legal setback to the long trajectory of social justice. I have no doubt that the present judgment will be overturned on the ground that it has irrevocably dented the basic structure of our constitutional framework. Nevertheless, constitutional repair seldom is carried out within the confines of courts alone; and it is important that these battles are endured across society at large.
Legal Setback to Constitutional Equality
The present judgment suffers from serious infirmities. Firstly, the Supreme Court should introspect why it has taken nearly four years to deal with such an important issue with widespread social, political and legal ramifications. During the course of the pendency of this case, the Union and States had begun implementing the quota of Economically Weaker Sections (“EWS”) thereby embedding it within the constitutional psyche. As such, to undo this had become increasingly difficult with the efflux of time.
Some of the observations in the Janhit Abhiyan case around statements with regard to a time-limit for reservations were surprising when these issues were not central to the case itself. It is also ironic that while affirming a reservation policy, individual Judges have questioned the future of reservations itself. Nevertheless, all such statements must be regarded as obiter and without any binding effect on future legal evolution of the core issues.
The present judgment is one of the most disappointing expositions of law on the judicial thinking around reservations. As recently as in January 2022, a Supreme Court bench led by Justice Dr DY Chandrachud (Neil Aurelio Nunnes vs. Union of India 2022) had explained how reservation was not at odds with merit and also the role of reservation in “remedying the structural disadvantages” faced by marginalized groups. The Janhit Abhiyan judgment is at stark odds with this line of argument and instead has regarded reservation as a poverty alleviation scheme. Therein lies the most fundamental flaw in this judgment and one that goes to the roots of the basic structure of the Constitution. In the long trajectory of constitutional evolution, the country has witnessed low points such as ADM Jabalpur vs. S.S Shukla 1976 which have been rectified by latter courts. It is not unforeseeable that Janhit Abhiyan judgment will be subject to similar scrutiny in the years to come.
Not a Poverty Alleviation Mechanism
Reservation is not a poverty alleviation mechanism. Reservation was always implemented to address representation or lack thereof in educational institutions and public employment. The Supreme Court has failed to recognize that the 103rd Constitutional Amendment has relied on economic criteria to extend reservations, something that has been expressly barred in law. In Indra Sawhney vs Union 1992 , it has been categorically held that the determination of backwardness on economic condition can never be the sole criterion. The reason for this is that income is a variable factor and not a structural or systematic tool for discrimination.
On the other hand, caste is a structural and systematic discrimination and poverty is a consequence of such discrimination. Various surveys have confirmed that the other backward classes, Scheduled Castes and Scheduled Tribes are over-represented in the proportion of poor. The Forward Caste groups are considerably better off as a class or group, even if there are poor individuals amongst them. Therefore, the reservation has always dealt with class poverty. By determining a class on the basis of an economic criteria i.e., below INR 8 lakh of annual income of a family or individual, the EWS quota ex facie infringes the principles of constitutional equality and renders the concept of reservation, as known to the Indian Constitution, virtually unrecognizable. In short, EWS is ambiguous, arbitrary and alien of the established principles of Constitutional equality.
Dravidian Movement and Social Justice
The Dravidian Movement has a chequered history when it comes to social justice and especially affirmative action. The Justice Party (South Indian Liberal Federation) introduced and implemented the Communal Government Order in 1926 which formed the basis for reservation policies in education and employment. Over the next 10 decades, the Dravidian Movement systematically extended reservations to the marginalized communities. As a result, Tamil Nadu has been a pioneer in formulating and implementing reservations.
One of the earliest setbacks to affirmative action of the then Madras State was the State of Madras vs. Champakam Dorairajan 1951, wherein the Supreme Court struck down the 1926 reservation policy. This eventually led to political mobilization that resulted in the very first Constitutional Amendment to include Other Backward Classes within Article 15 of the Constitution and has now formed part of the basic structure of the Constitution.
Over the next sixty years, affirmative action policies have been successfully introduce and implemented to alleviate the caste based discriminatory structures and age-old inequalities that prevail within society. A composite understanding of social justice has helped formulate special provisions for women, Persons with Disabilities (differently-abled persons) and Transpersons to provide substantive societal inclusion and social justice.
Ultimately, issues going to the root of our Constitution and the core of our national character are seldom determined by the courts. The way ahead and out of the constitutional conundrum of Janhit Abhiyan judgment lies in taking forward the Social Economic and Caste Census as an empirical basis to understand structural disadvantages in society. Though the 103rd Constitutional Amendment was enacted before the 2019 General Elections to the Parliament, a political mobilization of the discourse around reservation has now been enabled in the lead up the 2024 elections. The Dravida Munnetra Kazhagam has consistently opposed the concept of EWS quota, in its present form, and has called for an all-party meeting in Tamil Nadu to discuss the next steps forward, in addition to committing to file a review of the Janhit Abhiyan judgment.
Manuraj Shunmugasundaram, Advocate and DMK Spokesperson
The gubernatorial remarks on Aryan-Dravidian differences can only be described as a case of historical negationism.
The remarks made by Governor of Tamil Nadu R.N.Ravi on Aryan – Dravidian differences being geographical and not racial, last week, offered remarkable insights into the contemporary political state-of-affairs. In stark contrast to other Governors in non-BJP ruled states, R.N.Ravi has walked into the ideological thicket. The linkages of Tamil Nadu to the Dravidian political ideology are inalienable and the remarks made by R.N.Ravi must be viewed in this context. While such interventions by unelected Governors in non-BJP ruled states have become par for the course, it is imperative to look closely into the merits and veracity of the claims raised by R.N. Ravi for these go to defining the idea of India itself.
The statements made by R.N. Ravi, initially at the Vellore Sepoy Mutiny commemoration and repeated at the Madurai Kamaraj University function, can only be described as historic negationism. In the past, various leaders have strongly contested the Aryan Migration theory and have attributed the emergence and evolution of the Aryan – Dravidian distinction to the British. By wading into this hotly contested ideological battle, R.N.Ravi has attempted to shake up the political discourse in Tamil Nadu.
Linguistics and Race
What is notable, however, is that R.N. Ravi is not the first to make such claims. In fact, the second chief of Rashtriya Swayam Sevak, M.S. Golwalkar viewed the Aryan – Dravidian distinction as a territorial denomination in his book ‘Bunch of Thoughts’. By doing so, M.S.Golwalkar attempted to position Aryans as natives of Indian sub-continent in the ‘Out of India Theory’ which has now been widely discredited by academics. Nevertheless, the issues raised by M.S. Golwalkar and now, R.N. Ravi, are significant not for their academic calibre but because they go to defining the idea of India. The Indian sub-continent boasts a rich and diverse history involving multi-ethnic origins and this is established by in-depth scholarship on linguistics, mythology, folklore and anthropology, archaeology, geology, big-history and genetics . It is from these academic pursuits that the linguistic studies have established uniqueness of the Dravidian language family consisting of Telugu, Kannada, Malayalam, Tulu, Tamil and so on.
Robert Caldwell, in his seminal work ‘A Comparative Grammar of the Dravidian or South-Indian Family of Languages’ published in 1856, a year prior to the Sepoy Mutiny of 1857, has offered empirical evidence for the non-Sanskrit origins of Dravidian languages. The breakthrough in understanding linguistics was not an isolated event. It was accompanied by the emergence of Tamil Renaissance movement that led to enabling a culture of political consciousness founded upon rationalism and spurred by social justice. Ideologues such as Ayotheethasa Pandithar, Manonmaniam Sundaram Pillai and M.S. Purnalingam Pillai as well as latter day ‘Justice Party’ leaders like Dr. T. M. Nair, Thiagaraya Chetty and Dr. Natesa Mudaliar championed the socio-political call for the emancipation of Non-Brahmins. As such, these circumstances collectively seeded the idea of what was to become the Dravidian Movement, that took shape formally on 20 November 1916 at the meeting called in Victoria Public Hall in then Madras City.
In recent times, we have witnessed the hypothesis based on the study of linguistics and literature has started to receive material evidence from the discovery of Harappa and Mohenjadaro in early 1920s till today, in the ongoing Keezhadi excavations in Tamil Nadu. With modern-day advancements in handling fragile biodegradable material from excavation sites and high-throughput genomic sequencing, we are moving closer to understanding how this Indian sub-continent was populated through waves of migration. These studies confirm the historical facts which have seeped into common understanding in Tamil Nadu over the course of the century-old Dravidian Movement. In 2018, the paper titled ‘The Genomic Formation of South and Central Asia’, co-authored by 92 scientists from a range of disciplines, further confirmed the Aryan migration into the sub-continent between 2000 BCE and 1000 BCE. More published scientific work, following this paper, also confirmed that Harappans of the Indus Valley Civilization created agricultural revolution in the sub-continent and narrowed the period of Aryan migration to 2000 BCE and 1500 BCE.
Aryan Illusion
The recent scientific findings have conclusively debunked the Out of India Theory, which is part of the larger narrative suggesting that Dravidians and Aryans are ethnically similar but geographically divided. This has posed serious problems to the supporters of Golwalkar who have recently set out to discover the lost, mystic river of Saraswati and to repackage the Indus Valley Civilization as ‘Saraswati Civilization’ without paying regard to realms of research which suggests that the language of Harappans could have been Dravidian/Proto-Dravidian. As such, C.N. Annadurai (Anna), a stalwart of the Dravidian Movement and a former Chief Minister of Tamil Nadu had anticipated such baseless positioning in his book titled Arya Mayai (Aryan Illusion). Anna, building on Periyar E.V. Ramasami’s teachings, structured a socio-political discourse against superstitions, false beliefs and fake histories. Subsequent Dravidian leaders including Kalaignar M. Karunanidhi supplemented their social policies with academic rigour, scientific temper and rational thinking, that later came to be the benchmark of Dravidian politics. Even when differences cropped up between the Dravida Munnetra Kazhagam and Anna Dravida Munnetra Kazhagam, its leaders did not compromise on their steadfast beliefs to the core values of the Dravidian Movement and their opposition to caste-based social structures.
It is therefore not surprising that Chief Minister M.K. Stalin has championed the cause of state interventions to root out inequalities and to create a fair ecosystem for everyone to thrive which he has called the ‘Dravidian Model’. It is also a fact that Chief Minister Stalin presented a book by the title Dravidian Model to Governor Ravi. This book, authored by economists Kalaiyarasan A and Vijayabaskar M, provides a detailed, empirical interpretation of the modern-day political economy of Tamil Nadu. During the remainder of Governor R. N. Ravi’s tenure in Tamil Nadu he may come across various such books that record evidence on how languages of India were shaped by waves of migration; and how streams of social movements took birth to speak emancipatory ideologies in different languages to make India a multi-source civilization. Any other theory that Governor R.N. Ravi may encounter needs to be viewed with suspicion in the face of overwhelming evidence supporting the migration of Indo-European speakers, who were called Aryans, to India almost 4000 years ago.
Manuraj Shunmugasundaram
(Advocate practising at the Madras High Court and Spokesperson of Dravida Munnetra Kazhagam)
The Dravidian movement has left its progressive imprint on Tamil Nadu.
Almost exactly a hundred years ago, on 20 November 1916, Sir P. Theagaraya presided over a meeting at the Victoria Memorial Hall. It was the coming together of Madras Presidency’s leading non-Brahmin traders, lawyers, doctors, landowners and politicians. That moment is considered by most historians to be the birth of the Dravidian movement, a socio-political movement which set the agenda for the next hundred years of politics in Tamil Nadu, and led the way for mobilization of marginalized peoples across the country .
The over-representation of Brahmins in the British Raj bureaucracy, as established by the census results, concentrated the simmering discontent amongst the lower castes. Those who gathered on that day in November 1916 formed the first congregation of backward classes to affirm their political power. On that day, The South Indian Liberal Federation, later known as the Justice Party, was founded to ensure political representation.
The very first elections to Madras Presidency, under the new diarchy system, in 1920 saw the Justice Party win a comfortable majority. It was in this tenure that the Communal G.O. No 613 was passed to legislate reservations for various communities in government jobs, a first for any elected government in the country. Soon thereafter, the government amended the Government of India Act to enable the very first Indian woman legislator – Dr Muthulakshmi Reddy – to be elected to the Madras Presidency paving the way for women in politics. In order to curb caste-based discrimination under the guise of religion, Hindu temples were brought under the control of the state government through another legislation. The first Justice Party government, thus, made some of the longest strides in the empowerment of the oppressed people.
Almost in a parallel setting, Periyar EV Ramasamy was ploughing a separate but equally determined battle against oppressive forces. He led the Vaikom struggle for lower caste Hindus to use the street adjacent to a Siva temple in the then Princely State of Travancore in 1925, an act whose success reverberated across India. The Self Respect Movement he founded was radical in its thinking and action. Periyar advocated inter-caste (or, as he called them, ‘caste-less’) marriage, women’s education, women’s property rights and widow remarriage in a language that was both fiery and candid.
The imposition of Hindi by the Madras Presidency Government in 1937 brought the twin forces of the Justice Party and the Self Respect Movement together in opposition. By December 1938, Periyar, already a popular leader, became the President of the Justice Party. At the 16th Conference of the Justice Party, held on 21 August 1944 in Salem, it was renamed Dravidar Kazhagam to include all linguistic peoples of Southern India, assert their ethnic identity and also to launch the demand for a separate Dravida Nadu.
While the Dravidar Kazhagam was a potent force for social change, a splinter group led by Anna C.N. Annadurai aspired to involve directly with the politics of the newly independent country. In 1949, the Dravida Munnetra Kazhagam was formed with the objective to convert social reforms into administrative action. Since 1967, when DMK formed government in Tamil Nadu, social reform agenda has been at the heart of the state’s governance; Self Respect Marriages abolishing caste and religious customs, were legalised by the DMK in 1967. Madras became Tamil Nadu in 1969. Women were given equal succession rights in 1989. Inter-caste communities (Samathuvapuram) were built by the State in 1998. The state legislation to tear down caste barriers within priesthood was passed in 2006. Mid-day meals, maternity benefits and women self-help groups can all be traced back to the early policy platforms of the Dravidian Movement.
Today, in its centenary year, there is much to be thankful for. Tamil Nadu continues to be ranked among the best states in Human Development indicators. However, the next hundred years of the Dravidian Movement will witness bigger challenges in the form of caste and ‘honour’ based crimes, religious bigotry and social disparities that have shown a resurgence in recent times. The future of the Dravidian Movement lies in how its present-day successors find common cause in a society where identities have began to trump ideologies. Still, the Dravidian Movement must be celebrated for being the first backward class mobilisation in the country which has created historic social change and political empowerment. Manuraj Shunmugasundaram Lawyer & Spokesperson, DMK
The Dravida Munnetra Kazhagam traces its history to the century-old social reform movement, which began in November 1916 and has nurtured a long and chequered political past. Nevertheless, it has always aspired to reflect the present-day aspirations of subsequent generations of Tamils and, now, under a new leadership team, is determined to reinvent itself as a party of the future.
The greatest advantage for the DMK is that it has been bestowed with a lasting legacy and strong ideological core. The party has been wedded to the notion of self-respect, and out of this were born: primacy of personal freedoms, abolition of caste and caste-based rituals, demand for multilingual equality and so on. Every social policy position adopted by the DMK can effectively be traced back to the spirit of self-respect. In terms of economics, the party transformed under Anna’s leadership from its earlier leaning towards marxism to what is best described as ‘consumer socialism’. The flourishing of manufacturing sectors in automobile, textile, electronics as well as financial and I.T. services-oriented industry and a modern agriculture economy are consequences of a balanced economic outlook over the last sixty years.
Notwithstanding, new challenges have surfaced in the form of a competitive federal market to woo investment and the emergence of the “Startup Culture”. The economic policies of the DMK, therefore, need to be revised to meet such challenges and provide impetus to building an Innovation Economy that is globally competitive.
In the political space, there is still much waiting to be done to sustain the remarkable Dravidian legacy within the state and introduce tenets of Dravidian ideology to other parts of the country. The Dravidian core values of self-respect can resonate across societies, states and social classes. In the recent past, a number of states have found a common call to oppose the predominance of Delhi in policy making.
The thought leadership provided by DMK and its current President, MK Stalin, in opposing the unfair and prejudicial Terms of Reference in the 15th Finance Commission is well recorded. It was a series of letters written by Stalin to various Chief Ministers and the Union Government that triggered a large scale political discussion on the topic. This ultimately resulted in a concession by the Prime Minister to reconsider the population criterion as well as six states – Andhra Pradesh, Kerala, Punjab, Delhi, Puducherry and West Bengal – jointly petitioning the President on the issue. In spite of not being in government, the DMK continues, through such interventions, to play a role in shaping the national political discourse.
Besides issues surrounding state autonomy, the next set of challenges that confront our society and pose a threat to nation-building may be found in the areas of climate change, social inclusion – women, sexual minorities and differently-abled – and data privacy. The DMK will need to codify its policy positions in the lead up to the upcoming General Elections to Parliament. There will be discussions – internal and external – to decide on what are the best courses of action in addressing each of these issues effectively and expediently.
Overall, there is a pressing need to professionalise the political setup. Across the country, we are seeing drastic improvements in media management, political speech-making, data analysis and tech-enabled campaigning. The foundation of this political modernisation is the creation of think tanks aligned to political parties. These think tanks – set up within or outside the party – have become ideological beacons to guide the party’s office bearers in a meaningful manner.
Finally, in the past year, in various districts of Tamil Nadu, we have witnessed a number of youth-led initiatives to revive Dravidian discourse. These have been talks, symposia and closed-door discussions which have attracted young professionals, college students and other persons from traditionally apolitical backgrounds in large numbers. Some have been styled as “Dravidam 2.0”, “Dravidam – Then and Now” (அன்றும் இன்றும்)” and “Dravidian Wings” (சிறகுகள்). These events are predominantly organised by young professionals financed by their own contributions and advertised through social media only; and draw upon an exclusively urban, young and socially conscious patronage.
It is evident that there is a palpable yearning to understand the modern-day relevance of the Dravidian Movement and its derivatives. Through various efforts led by the current leadership of the party, the DMK has provided space for such initiatives to conceive, blossom and flourish across the state. More than increasing its cadre base through such public fora, many of the party’s leaders are able to engage with non-traditional party supporters and first-time voters. More importantly, the party is able to bring in new perspectives to bolster its ideological base and prepare itself for the next generations of supporters and adversaries.
On 5 October 1983, 53 leaders from 17 political parties met in Srinagar in a tremendous show of strength against an extremely powerful Union Government. These leaders came together to repair and redefine the Centre – State relationship and pave way for a more federal structure. All parties present were united by the cause of federalism. The Dravida Munnetra Kazhagam was represented by the then Treasurer of the party Sadiq Basha at the Srinagar Conclave which was hosted by Farooq Abdullah, then Chief Minister of Jammu and Kashmir. Today, when political leaders across Kashmir have been detained, DMK held an agitation, with the participation of sixteen political parties, in New Delhi to protest the authoritarian and anti-democratic actions of the Union Government. Both, then and now, Kanyakumari and Kashmir are bound by a common thread of national interest and the spirit of the Constitution.
It has been pointed out that political movements of Tamil Nadu and Kashmir have witnessed similar trajectories. In newly Independent India, there were strong undercurrents of separatism prevalent in the two states. The Dravida Nadu demand, one of the key planks of the early day DMK, was replaced in 1962 by the plank of regional autonomy and that of “Dravidian Co-operation” to ensure maximum devolution of power to the Southern States. Subsequent elections in Tamil Nadu have vindicated this policy change of the DMK with the party being elected to govern the state on five occasions.
Simultaneously, during the sixties and seventies, mainstream politics across India moved from secession to state autonomy; and from fringe demands to federal rights. Nevertheless, it is true that Kashmiris and Tamils, as well as other ethnic and linguistic peoples, feel equally strong about their regional and national identities. But, the politics of “Ek Bharat Shreshta Bharat” espoused by BJP and its parent Rashtriya Swayamsevak Sangh is predominantly assimilationist and anti-pluralist in nature. Therefore, BJP is unable to comprehend this fundamental distinction between regional and national identities and the significance of preserving the two.
The Srinagar Conclave of 1983 was part of the early wave of meetings led by regional parties which laid the platform for improving federal structure of the country. In that meeting, a comprehensive resolution, consisting of 31 items, was passed suggesting large scale changes in Centre-State relation in the administrative, economic and political fields. The essence of these were that the Centre should confine itself to subjects like defence, foreign affairs, currency and communications. Naturally, the States would exercise sovereign power in all other aspects. These efforts resulted in structural political changes which led to the formation of Union Governments led by regional parties from 1989 onwards and devolution of powers from the Centre to States.
Such a push for decentralization and greater autonomy for states is apparent even from the evolution of law laid down by the constitutional courts. The Supreme Court in Kesavananda Bharti vs Union of India 1973 case first spoke about the federal nature of the Constitution as one of its basic features. These concepts were further solidified in the judgment given in the S.R.Bommai vs Union of India 1994. The Supreme Court, on a number occasions including in cases such as I.T.C Ltd. Vs Agricultural Produce Market Committee 2002, has not shied away from declaring that the powers of the state legislature cannot be whittled away by actions of the Union Government. The events leading up to the issuance of Presidential Order C.O. 272 of 2019 has been a Constitutional misadventure and equates the State Government to be the Governor. The entire exercise has been nothing but a show of complete autocracy and therefore, stands to vitiate a number of constitutional guarantees such as federal structure, representative democracy and fundamental freedoms.
Therefore, when the petitions challenging the abrogation of Article 370 are heard, it will not be about Kashmir alone. It will also determine the fate and future of federalism and naturally, the basic structure of the Constitution itself. That is the reason why parties like the DMK – which believe in a functional democracy and constitutionalism – must come together to stop the Union Government from precipitating the situation any further.
Disinformation campaigns could be used to manipulate social and political outcomes, as a concocted narrative about the safety of migrant workers in the southern State shows
Last week, a malicious online disinformation campaign led to law-and-order issues and made media headlines across the country. Over a four-day period, a concocted narrative about migrant workers, hailing from Bihar, being subjected to violence in Tamil Nadu was being continuously shared. Though the Tamil Nadu police responded with alacrity and debunked these false claims with factual reports, on-the-spot investigations and personalised appeals, the spectre of disinformation should not be easily disregarded. The propagation of fake news will be one of the biggest threats to democracy in an election season when most information is likely to be consumed through social media sources. As such, this issue should rank highly as any other with the potential to destabilise democratic institutions.
On the first day of March, a public meeting held in Chennai to mark the 70th birthday of Tamil Nadu Chief Minister MK Stalin saw the attendance of various national leaders such as Indian National Congress president Mallikarjun Kharge, Jammu and Kashmir National Conference Leader Farooq Abdullah, Deputy Chief Minister of Bihar Tejashwi Yadav and Samajwadi Party Chief Akhilesh Yadav. It was a significant political event as it brought together a grouping of leaders belonging to parties opposed to the BJP. On the very next day, videos of migrant workers leaving Tamil Nadu for Holi holidays began to be shared as if there was an exodus from the state due to incidents of violence.
To nurture the narrative, stray news stories about death of a migrant worker were seeded online to build a wider campaign that there was targeted violence perpetuate against North Indians. Social media handles belonging to BJP office bearers from Bihar and Uttar Pradesh shared the misinformation in social media and some media outlets such as Dainik Bhasker project these stories as news, without carrying out any verification. It was left to fact checkers, such as Alt News, to ultimately break the cycle of disinformation on social media.
In order to contain the spread of fake news, Government of Tamil Nadu plied into service various officials including Head of Police Force and Superintendents of Police. Tamil Nadu police, specifically, clarified that the videos which were being circulated were false and mischievous. The Chief Minister of Tamil Nadu, also, assured the Chief Minister of Bihar that adequate protections are being provided for migrant workers. Helplines were set-up by the Government at the district-level, particularly in the areas containing a higher number of migrant workers. Chief Minister MK Stalin visited a surgical glove manufacturing unit premises near Tirunelveli and interacted with labourers hailing from Jharkhand to reassure them. A high-level government delegation from Bihar visited Tamil Nadu and confirmed that there was no truth to the rumours about migrant workers being targeted in Tamil Nadu. In this particular instance, the response of Tamil Nadu was a text book rebuttal to curtail the spread of disinformation. However, the problem runs much deeper. When one looks at what is happening in other parts of the world, it is apparent that disinformation campaigns have the potential to unfairly manipulate social and political outcomes.
Keeping this in mind, several countries have already felt the need to effect robust responses to disinformation. The European Union has put out the 2022 Code of Practice on Disinformation. Some of the strengthened initiatives of the EU Code include transparency in political advertising, empowerment of fact-checkers and researchers, tools to flag disinformation and measures to reduce manipulative behaviour. The United Kingdom has proposed to enact an Online Safety Bill which will expect social media platforms (intermediaries) to actively monitor problematic content. As the UK Bill is being currently reviewed by the Committee in the House of Lords, there are already calls from a number of companies including WhatsApp and Signal to scrap the legislation in the interest of privacy. During the progress of the UK Bill, the provisions to monitor “legal but harmful” content have already been replaced with greater onus on social media platforms in enforcing their terms and conditions in accordance with their policies.
On the other hand, there has been little or no serious discussion on the menace and extent of misinformation in India. The Union of India has only employed knee-jerk measures such as internet shutdowns across jurisdictions without due regard to the doctrine of proportionality. This response, to put it mildly, is over-simplistic, non-transparent and autocratic. A more studied, comprehensive and calculated set of legislative actions is required if one has to strike a balance between allowing free speech under Article 19 of the Constitution of India and protecting citizens from falling prey to malicious disinformation.
In the case of Tehseen Poonawala v Union of India2016, the Supreme Court had held that it is the duty of the Union and State Government to take steps to curb dissemination of “irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence”. India witnessed the panic created out of fake news during the early months of the pandemic. The Supreme Court of India in Alakh Alok Srivastava Vs. Union of India 2020 dealt with Public Interest Litigation on the plight of migrant workers walking hundreds of kilometres when the country went into lockdown. Such instances illustrate the real dangers of dissemination of fake news to public order.
Rather than coming up with a robust framework to tackle the menace, the Union has granted itself greater powers to strike down any content which is found to be unpalatable. Using Section 69A of the Information Technology Act, 2000, the Union Government has blocked access to any information online that it considers necessary in the interest of sovereignty and integrity of India, security of the state or public order. More recently, the Union brought out the IT Rules, 2021 to regulate the content by online publishers of news and social media intermediaries. The recent draft amendments to the IT Rules, 2021 empowering the Press Information Bureau, under the Union Ministry of Information and Broadcasting to decide what amounts to disinformation. It is apparent that the focus is not so much on blocking fake news as much as it is on containing criticism against the Union Government and its leaders.
The recent spate of disinformation projecting discord between Tamils and migrant workers residing in the state of Tamil Nadu is nothing but an attempt to incite communal disharmony between the two groups. It is unfortunate that several social media handles belonging to BJP office-bearers as well as media outlets had propagated these untruths without having regard for consequences. However, it is the timing of the campaign, coming on the heels of a public meeting attended by MK Stalin and Tejashwi Yadav which really points the needle of suspicion against the BJP and its affiliates. Though the overall damage of this disinformation campaign has been well contained on this occasion, it serves as an ominous indicator of what lies ahead in the lead up the next general elections where voters will rely on information through social media more than any other source.
Manuraj Shunmugasundaram
Advocate practising at the Madras High Court and DMK Spokesperson
The incidence of disputes regarding the powers of the Speaker of the House have risen in the recent past. The law is clear on how the Speaker must deal with the matters inside the House, especially with regard to defections. However, what constitutes a defection is becoming less clear. In such cases, where the Governor plays a dubious and unhelpful role, the constitutional courts have been routinely called to rectify the situation.
Three major states have witnessed legislative upheaval in the last five years. In the case of Arunachal Pradesh, the Governor went to the extent of calling for a special session of the Legislative Assembly and dictating the agenda of the House. When these actions were challenged, in Nabam Rebia and Damang Felix vs Deputy Speakerand Others, the Supreme Court effectively cut the office of the Governor down to size and held that the messages sent by the Governor were constitutionally invalid.
Two different issues have arisen in Tamil Nadu involving a total of 29 Members of Legislative Assembly, which is more than one-tenth of its total strength. The case of 18 MLAs submitting a letter to the Governor led to their disqualification by the Speaker under the Tenth Schedule and ultimately, this was upheld by a third judge of the Madras High Court.
The other case of 11 MLAs who voted against the Motion of Confidence on 18 Februray 2017, when Edapadi Palaniswamy proved his majority, is pending appeal in the Supreme Court. The matter is of great constitutional importance because it would ultimately determine the powers of the Speaker and whether the Supreme Court can interfere in a matter where the Speaker has taken no decision. Such a question around qua timet actions is already referred to the consideration of a Constitutional Bench in the Supreme Court after a matter came from the Legislative Assembly of Telangana. However, in the present case involving 11 MLAs, it has been argued that the Speaker has displayed mala fides by taking no action against the 11 MLAs for their conduct in February 2017 but was quick to issue notice and subsequently disqualify 18 MLAs for their actions in September 2017.
The case in Karnataka is on a different pedestal as it involves the simultaneous determination of two issues – question of voluntary or genuine resignation by a group of MLAs and the disqualification proceedings for defection under the Tenth Schedule.
When the matter came up before the Supreme Court last week, in Pratap Gouda Patil and Ors vs State of Karnataka, the Speaker was directed “to decide on the request for resignations by the 15 Members of the House within such time frame as the Hon’ble Speaker may consider appropriate”. The Supreme Court has exercised immaculate restraint to not interfere with the legislative sovereignty and has upheld the separation of powers between constitutional high offices. However, there appears to be no resolution in sight.
The Supreme Court may have to finally step in to the “legislative thicket” in order to bring the ongoing saga to an end. While doing so, the Supreme Court must assess the actions of the MLAs who have shown scant regard to the principles of the Tenth Schedule to the Constitution and have engaged in dishonest conduct. While the Speaker is supreme within the four walls of the House, the actions of MLAs – who have become unseasonal visitors to resorts in Koovathur, Coorg and Mumbai – must be factored in. In the interest of larger democratic considerations, the Supreme Court would also require to settle the larger questions pending before the Constitutional Bench with regard to the power of speaker and the determination of defections.
admin@thefirm 
August 1, 2024 
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