The Hindu : ``President's sanction needed to arrest Central Minister''

Online edition of India's National Newspaper
Wednesday, Sep 24, 2003

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``President's sanction needed to arrest Central Minister''

By J. Venkatesan

New Delhi Sept. 23. The minimum propriety required in a federal system of governance is that the President's prior sanction is necessary before a Union Minister is arrested, say legal experts.

This view assumes significance in the context of the Tamil Nadu Chief Minister, Jayalalithaa, writing a letter to the Prime Minister, Atal Bihari Vajpayee, to drop the Union Minister, M. Kannappan, failing which her Government would be constrained to initiate action against him under the Prevention of Terrorism Act.

The former Chief Justice of the Delhi High Court and senior counsel, Rajinder Sachar, said that initiating criminal action against a Union Minister without the involvement of the Centre was wrong.

When the Prime Minister had faith in the Minister's continuance, to proceed against him/her without the Centre's involvement and the President's sanction would be against the spirit of the federal structure of the Constitution.

Mr. Sachar said that Sec. 21 of the POTA (under which the MDMK leader, Vaiko, has been detained) was the subject matter of a petition pending before the Supreme Court. While so, invoking the same provision without waiting for the outcome of the judgment was not proper.

He wondered how could anyone making a speech without indulging in any support to the terrorist activity of a banned terrorist organisation be arrested under this provision. He said Sri Lanka had lifted the ban on the LTTE to pave the way for peace talks and the international community was involved in the peace talks. If even an innocuous speech could be treated as offence, then it went beyond the scope of reasonable restriction to freedom of speech and expression, he said.

Moreover, when there was no allegation that by his speech the Minister concerned had acted against the interest of the sovereignty of the Union or the State, to arrest him under POTA was an illegal act, he said.

The vice-president of the Bar Association of India, P.H. Parekh, was of the view that if Mr. Kannappan was arrested it could even be construed as failure of the constitutional machinery as contemplated under Article 356 warranting the imposition of President's rule. Can the Tamil Nadu Chief Minister arrest the Prime Minister if he were to make a speech or make a reference in support of a banned organisation, he asked and said "if this is the attitude, how will the Constitution work?"

Explaining, he said the Prime Minister had appointed a person as Minister to discharge the constitutional obligations. To say that he should be dropped amounted to infringing on the prerogative enjoyed by the Prime Minister to choose any person as his Minister and violation of the constitutional mandate.

During the hearing of the petitions challenging the POTA, the Centre filed an affidavit in the apex court clarifying that the speech delivered by the MDMK leader, Vaiko, on June 29, 2002, "if properly interpreted and read in the entire context of the speech and the surrounding

circumstances, does not attract Sec. 21 of the POTA".

Rajeev Dhavan, senior advocate, said that "POTA cannot be a subject matter of a political bargain" and the Chief Minister's letter, "reflects that POTA is a dangerous weapon in the hands of the State to be used against political opponents".

He said that for the State to initiate a criminal action against a Central Minister there must be a clear violation of the law other than "regime revenge" and the Government should not play to some "political gallery".

The threat to arrest a Central Minister would show that "free speech is in peril" and this was nothing but "political blackmail", he said.

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