In what may impact the disproportionate assets case involving Tamil Nadu Chief Minister Jayalalithaa, the Supreme Court has agreed to settle the law on whether chief ministers or ministers of government can actually be treated as “public servants” on a par with government functionaries performing public duties.
The apex court wants to know whether it is repugnant to treat chief ministers and ministers on a par with other public servants on government roll, especially when no statute passed by the legislature has ever specifically defined them as one.
A Bench of Justices Pinaki Chandra Ghose and R.K. Agrawal, which is hearing Karnataka’s appeal against the acquittal of Ms. Jayalalithaa in the wealth case, has issued notices to the parties arraigned in the petition — the Centre, the Karnataka government, DMK leader K. Anbazhagan, Ms. Jayalalithaa and BJP leader Subramanian Swamy.
The petition, filed by Chennai-based lawyer R. Rajavel, said the question of law was triggered by the prolonged litigation in the Jayalalithaa wealth case. The Bench, during a November 23 hearing, tagged it along with the disproportionate assets case.
The petition said there was no clear statutory provision defining a chief minister as a public servant. Written law or statutes enacted by Parliament do not include political persons in the category of public servants.
In fact, it was the Supreme Court, which, in the case of M. Karunanidhi versus Union of India on February 20, 1979, had held that the post of chief minister is that of a ‘public servant’.
Interpreting the term ‘public servant’, the apex court had taken recourse to Section 21 (12) (a) of the Indian Penal Code, 1860, which said “every person in the service or pay of the government or remunerated by fees or commission for the performance of any public duty by the government” is a public servant. The Prevention of Corruption Act also defines the public servant similarly.
“Inclusion of chief ministers within the ambit of ‘public servant’ is an interpretation made by the apex court by taking recourse to Article 141 of the Constitution and can be rightly understood falling under the category ‘law declared’,” the petition said.
Under the parliamentary law, public servants are those required to pass an examination to prove their credentials, who need to be of a prescribed age limit, who should be politically neutral and are governed by the Central/State Civil Services Conduct Rules.
On the other hand, the politicians are appointed by the President or the Governor on the basis of their electoral performance, and are a privileged category who carry out the political agenda of their respective parties and their remuneration is decided by the respective State legislature.
In Ms. Jayalalithaa’s case, the petition pointed out how the prosecution had through out treated her as a public servant even though she was both the Chief Minister of the State and the general secretary of the AIADMK during the check period 1991-1996. Urging the court to draw a legal distinction between public servants under the ‘law declared’ and public servants under the ‘law enacted’ by Parliament, the petition said it was time to evolve the law on sound lines and not treat the two dissimilar categories on par.
