Cauvery- Rs 60 cr. on litigation and the battle continues…..

The birth place of River Cauvery- pic-travel.ithappensinindia.com

While the Cauvery issue has brought life in Karnataka to a standstill, the battle will continue before the Supreme Court on Monday with both Karnataka and Tamil Nadu battling it out.

While a staggering Rs 60 crore has been spent on litigation alone by the two states, this appears to be a battle which will continue for a very long time. Both the State Governments have been battling it out every year in the Supreme Court regarding this issue and this year too it is no different.

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Reservations in promotions- Merit vs Caste?

Pic-newstopnight.in

As expected there has been a raging debate over the Bill providing for reservation to SCs and STs in promotions in government jobs. The Union Cabinet chaired by the Prime Minister had approved the proposal to amend Article 16(4) of the Constitution to remove the term inadequate representation to justify reservations in promotions and appointments.
This issue has a very long history and has been dealt with many times by the Supreme Court of India in the Indra Sawhney and also the Chinnaya case. The question is whether this sort of a reservation is necessary for SC/STs when they already have a reservation at the entry level.

Professor Ravi Varma Kumar who was the first chairperson of the Permanent Backward Classes Commission in Karnataka says that the judgment of the Supreme Court has necessitated this amended bill which has been placed before the Parliament of India. It is merely restoring the view of the larger Bench of the Supreme Court and hence is a legitimate exercise. This bill requires immediate implementation as the SCs and STs continue to be denied their legitimate quota in the upper parts of service where decision taking power vests. It was the intention of the framers of the Constitution to ensure that adequate representation be given to the historically disadvantaged section not only quantitatively but also qualitatively.

Reservation only at the entry level in the lower rungs of service is not enough and hence reservation in promotion will go a long way in achieving the original objective in providing adequate representation qualitatively.

Two earlier large Bench decisions of the Supreme Court in the Indra Sawhney and the Chinnayas case had declared that the SCs are backward and nothing need to be further proved to show that they are backward. However there was another judgment which insisted on imperical data to prove the backwardness of the SC and this ran contrary to the decision of the larger benches of the Supreme Court. Hence what the Parliament is doing is restoring the view of the larger benches.

The other debate is regarding merit based promotions and whether this bill would rob meritorious persons of their promotions in a bid to make way for the SC/STs? Professor Kumar explains. What is merit and who has defined it. The present concept of merit is designed by the upper castes to exclude the backward classes from their legitimate quota. This was answered a century ago by the Justice Miller Committee. It had said that merit should never be measured only on the basis of academic marks secured in an examination. It should also be based on other traits like honesty, integrity compassion and basic common sense in which it is no body’s case that the backward class is anyway inferior to the upper class.

Reservation is always provided only to ensure that what legitimately deserved to them by virtue of their proportion in the population. They will not be given anything more than what is proportionate to their population. This is done to ensure that the proportionate quota is not robbed by the other castes. Reservation in promotion is only a mechanism to protect and to give them an opportunity from being robbed by the other castes.

 

In order to understand this better let us read Article 14 of the Constitution first:

The state shall not deny to any person equality before the law or

the equal protection of the laws within the territory of India”

Now comes Article 16 which deals with equality of promotion in government jobs.

There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

No citizen shall on grounds only of religion, race, caste sex, descent,

place of birth, residence or any of them, be ineligible for, or discriminated against

in respect of any employment of office under the State.

Nothing in this article shall prevent Parliament from making any law

prescribing, in regard to a class or classes of employment or appointment to an

office under the Government of or any local or other authority within, a State or

Union Territory, any requirement as to residence within that State or Union

Territory prior to such employment or appointment.

Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the state”.

Clause (4-A): Nothing in this article shall prevent the State from making

provision for reservation in matters of promotion to any class or classes of posts

in the services under the State in favour of the Scheduled Castes and the

Scheduled Tribes, which in the opinion of the State are not adequately represented

in the service of the State.

Clause (4-B): Nothing in this article shall prevent the State from considering any

unfilled vacancies of a year which are reserved for being filled up in that year in

accordance with any provision for reservation made under clause (4) or Clause (4-

A) as a separate class of vacancies to be filled up in any succeeding year or years

and such class of vacancies shall not be considered together with the vacancies of

the year in which they are being filled up for determining the ceiling of fifty

percent reservation on total number of vacancies of that year (Constitution 81st

Amendment Act, 2000).

In the year 1990 the government of India had decided to reserve 27 per cent of the posts for OBCs and this was taken up to the Supreme Court.

It was contended that SC and STs would be deemed as backward classes within the meaning of Article 16(4). In the Indra Sawhney case, the Supreme Court said that

A caste can be and quite often is a social class in India. If it is backward socially, it would be backward class for the purpose of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which, for historical reasons, are socially backward. They too represent backward social collectives for the purpose of Article 16(4).

Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method.

Creamy layer’ can be, and must be excluded. It is not correct to say that the backward class of citizens contemplated in article 16 (4) is the same as the socially and educationally backward classes referred to in article 15(4). It is much wider.

The ‘State’ has the first form an opinion about which castes/ community could be classified as the ‘backward classand whether the class so identified is adequately represented in the services under the state or not. After completion of this exercise, nothing shall prevent the State from making reservations.

In the Rajendran Vs Union of India case the Supreme Court had said that Article 16(4) does not confer any right on the SCs and STs and there is no Constitutional duty imposed on the Government to make

reservations for SCs/ STs, either at the initial stage of recruitment or at the

stage of promotion. 16(4) confers a discretionary power on the State to make reservations of appointments in favour of backward class of citizens which in its opinion, are not adequately represented in the services of the State

 

In the Indra Sawhney case, the Supreme Court while dealing with the issue of reservation in promotion had said that reservation in promotion is unconstitutional but permitted it reservation, for Scheduled Castes and Scheduled Tribes to continue for a period of five years.

Following this the Constitution was amended in the year 1995 and this was when article 16 (4-A) was incorporated. According to this article the state governments were allowed to provide for reservation, in matters of promotion, in favour of the Scheduled Castes and Scheduled Tribes.

In the Vinod Kumar case it was held that the government providing for lower qualifying marks in matters of promotion for candidates belonging to SC/ST are not permissible. Following this the government had in 1997 withdrawn various orders of such promotions. However the government once again decided to restore the relaxations and concessions for promotions.

In the year 1995 while seeking an amendment to the Constitution, the government had said that the Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955. The Supreme Court in its judgment dated 16th November, 1992 in the case of Indra Sawhney and Others vs. Union of India and Others, however, observed that reservation of appointments or posts under article 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in the matter of promotion. This ruling of the Supreme Court will adversely affect the interests of the Scheduled Castes and the Scheduled Tribes. Since the representation of the Scheduled Castes and the Scheduled Tribes in services in the States have not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion in the case of the Scheduled Castes and the Scheduled Tribes. In view of the commitment of the Government to protect the interest of the Scheduled Castes and the Scheduled Tribes, the Government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and the Scheduled Tribes. To carry out this, it is necessary to amend article 16 of the Constitution by inserting a new clause (4A) in the said article to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes. As per 4A nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

The amended 16 (4A) first came into play in the year 1995. This was done to ensure that the promotions that had been affected in the past remained unaffected by the order of the Supreme Court of India in the 2006 Nagraj case. In this order the Supreme Court had said that the states need to justify quota in promotions by giving evidence of inadequate representation and backwardness of beneficiaries.
One of the first to implement this was the BSP government in Uttar Pradesh. It had implemented quota in promotions, but then the same was struck down by the Allahabad High Court and later upheld by the Supreme Court which reiterated the Nagraj case.

The matter stood thus and ever since then there has been pressure by Mayawati to introduce a bill in Parliament which would nullify the latest order of the Supreme Court which had struck down reservations in promotions.

CBI raids Yeddyurappa’s residence

The Central Bureau of Investigation is conducting raids at the residence of former Karnataka Chief Minister B S Yeddyurappa at Bangalore. A special 9 member team of the CBI which conducted the raids early this morning is expected to continue doing so all through the day today.
The CBI team which has been split up into two teams will also conduct similar raids at the residences of Yeddyurappa’s two sons and his son in law too. The CBI team is looking for documents and evidence pertaining to both the mining scam and also the case pertaining to the denotification of sites allegedly committed by Yeddyurappa when he was the Chief Minister of Karnataka.
The CBI raids which will continue through the week will also focus on the bank accounts of the accused persons. The questioning of the accused and their accomplices is expected to commence next week.
The CBI had filed an FIR yesterday against Yeddyurappa, his two sons and his son in law. The FIR books the accused for offences under the prevention of corruption act and also illegal mining. The investigation is being conducted on the directive of the Supreme Court and a report to this effect will be submitted by August 3.

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Jayaa’s questioning remains incomplete

The J Jayalalithaa trial will be back in the Supreme Court now. As per the verdict of the Supreme Court the questioning should have been completed in two days but the Special Court was unable to complete the process today.
Jayalalaithaa’s statements were being recorded for a second day in a row. However even after asking her 570 questions the process was not completed today. The Supreme Court had made it clear that the questioning be completed in two days.
Her lawyer Kumar informed that they would now move the Supreme Court seeking a directive as what needs to be done in such an event. The Supreme Court would now have to give a fresh date so that the process of recording the statements are completed.
Meanwhile the Special Court at Bangalore has adjourned further hearing on the matter to November 8th.

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PETN- is it a new choice?

The presence of Pentaerythritol Tetranitrate (PETN) in the Delhi bomb has given the investigating agencies an entirely new dimension to the case. This is probably for the first time that a terrorist group has used PETN in a blast in India, a country which has seen a series of attacks in which only RDX and ammonium nitrate were used.

For quite some time terrorists had stopped using RDX and had relied heavily on ammonium nitrate which was easily available. However in the Delhi blasts the forensics team claims to have found traces of PETN which goes on to indicate that a bigger group was behind this attack.

PETN is not easily available and is a deadly explosive. It has been used by bigger groups such as the Lashkar-e-Tayiba and also the Al-Qaeda in the past. In several cases where PETN has been used it becomes clear that these groups had smuggled it from various countries and have stocked it at their base camps accorss the Indian border.

Forensic science experts say that it is a very powerful explosive and infact can create a similar impact that an RDX could create. PETN is normally mixed with a plasticizer and attached to an IED to trigger the bomb which creates a massive impact.

While the impact of the blast using PETN is a big factor for terrorists to use, the other more important factor is that when it is made into a bomb, the detection is extremely difficult since it cannot be detected easily. This is largely due to the plastic nature of the bomb and also the fact that it has low pressure molecules which make it hard for sniffer dogs too to detect. Another reason why security officials find it difficult to detect PETN is because it has very low vapour pressure in room temperature.

Sources say that the procurement of PETN is not difficult for terrorist groups. It is very much manufactured in India and like all other explosive material if a group puts its heart into it then they can easily procure it. However in India there are various regulations regarding PETN and it is not all that easy to source. When it comes to RDX, there are hardly any instances to show that it has been procured from India. It is always provided by the Pakistani establishment to terror groups and later it is smuggled into India. This could be very much the case in PETN since the history of the use of this substance would show that it has been used by bigger terrorist groups.

Security officials point out that the use of PETN has been found extensively only in the Jammu and Kashmir area. Terrorists are able to easily smuggle it from across the border. In this case the probe has reached the Valley and the procurement procedure of PETN will be an interesting angle to study. Moreover in the Delhi blasts the amount of PETN which was used was very less and this would have made it easier for the terrorists to procure. Intelligence Bureau officials say that the trend is a new one and gives the indication that terror groups are looking to increase the intensity of the blasts in the days to come.

It may be recalled during the trial of the case pertaining to the bombing of the RSS office at Chennai the use of PETN was greatly discussed. While the trial court had accepted the version of the police that PETN and RDX were used in the blasts, the appeal before the Supreme Court of India rejected this theory. However the theory of PETN being used in that blast was rejected since the investigating officers were unable to prove the origin of the PETN.

SC allows iron ore mining in Bellary by NDMC ‎

The Supreme Court in an interim order while keeping in mind the demand for iron ore has permitted the state run NMDC to operate two mines in Bellary district.
The NMDC which has been granted leases by the state and also which finds a mention in the Lokayukta report pertaining to lease violations was today permitted by the Suprme Court to extend the production of iron ore to the tune of one million tonnes per month from tomorrow onwards.
The Special forest Bench headed by Chief Justice S H Kapadia while passing this interim order however maintained that this order does not apply to private owners and the ban on mining in respect to them shall continue.
The interim order also states that while mining would be permitted for the NMDC, no part of the ore shall be exported. Further the Bench also directed the Karnataka government to levy royalty of 10 percent of the value of the iron ore.
The Supreme Court also directed a macro level environment impact assessment  be undertaken by Indian Council of Forestry Research and Education and directed that the report be submitted in three months. In addition to this it also sought details about the rehabiltation package for Bellary in three months.

CBI probe- the Supreme court also adjourned hearing on an interlocutary application seeking a CBI or SIT probe into illegal mining in Karnataka. Senior Counsel Prashanth Bhushan said that the application while seeking a CBI or SIT probe also takes note of the latest Lokayukta report. The matter is expected to be heard next week.

Now an application seeking CBI probe into illegal mining

Seeking a further probe into the issue of illegl mining following the report by the Lokayukta of Karnataka, an interlocutary application has been filed before the Supreme Court of India seeking an investigation through the CBI or SIT under the supervision of the court to probe all aspects of illegal mining in both Karnataka and Andhra Pradesh.
Further the application before the court also sought investigation by either of these agencies to probe the collusion of public servants and reprsentatives with the mine owners in Andhra Pradesh and Karnataka.
The petitioners, the Samaj Parivartan Samudaya state that there is large scale illegal mining in the above mentioned statesparticularly in the districts of Bellary, Chitradurga and Tumkur. There has been a serious breakdown of governance in Karnataka state on account of the nexus between politician-miners and officials which not only raises serious concerns about ecology and environment, but also on issues concerning transparency and accountability in the functioning of the Government.
The petitioners brought to the notice of the court that anorder had been passed on January 1 2010 in which the matter was referred to the Central Empowered Committee (CEC) which in turn filed two reports in which the issue of illegal mining was dealt with in detail.
The petitioners also bring to the notice of the court that the government of Karnataka had made a referrence to the Lokayukta of Karnataka who in turn had put out a report which was also placed before the court. Now the Lokayukta has submitted the second part of his report and the petitioners say that this report is a scathing indictment of the entire “state” machinery– forest dept, mining and geology dept, transportation dept, state police etc. – and encapsulates the systemic collapse that have happened in the region. The said report brings out how the rule of law has ceased to exist under the all pervasive business-political-bureaucratic nexus which has allowed large scale illegal mining in forest areas at highly unsustainable levels. The said Lokayukta report particularly deals with the districts of Bellary, Tumkur and Chitradurga where the Lokayukta and Chief Conservator of Forest found large-scale illegal mining and violation of lease conditions.
The petitioner further submits in the application that in the second part of the report the Lokayukta mentions that no action was taken on the first report as a result of which illegal mining continues to exist. As a matter of fact…illegalities in mining have increased and there is total failure of supervisory machinery in controlling all the above illegalities/irregularities. The Lokayukta report also brings out the unsustainable nature of the mining in Karnataka. It states: “It is shocking to note that the most of the leases will be running out of deposit of iron ore…in a span of 3 to 12 years. The consent approvals from the MoEF and also the IBM have been increased irrationally without keeping in view the total deposition of the ore in the leases and environmental damages. This unscientific and unsustainable extraction has caused a serious concern, the petitoners also state while quoting the report.
Further they submit that the second report of the Lokayukta also shows in great detail the offences under the Prevention of Corruption Act, Indian Penal Code, Income-Tax Act, Mining laws, Forest Conservation laws have been committed by various entities including top politicians, public servants and big companies. The Lokayukta has decoded the entire maze of financial transactions, lease deeds, sale deeds, maps, reports of forest dept, reports of mining & geology depts., encroachments, transport permits etc. and has brought forth the large-scale violation of laws by various specific entities.
The said reports also names the Chief Minister, sitting ministers, senior politicians, top public officials and also top companies like Jindal Steel and OMC, state and central public sector units, for committing various kinds of illegalities which are also serious offences. Most of these transactions are absolutely clear instances of quid pro quo amounting to a serious offence under Prevention of Corruption Act. It is to be noted that CBI is already investigating the mining scandal on the adjacent region of Bellary Reserve Forest which falls in Andhra Pradesh and the same officers can easily investigate the illegalities in Karnataka.
Under these circumstances, when the involvement of CM and top ministers is established, when big companies are involved and situation of systemic collapse is noted, it is extremely essential in the interests of rule of law to launch prosecutions and credible investigations on the basis of the reports of the Lokayukta and also the CEC reports. This cannot be done of the state government and the state police which are under the control of the same forces that have allowed this grave situation to develop. Hence it is in the interest of justice that the court orders a CBI or SIT investigation, the petitioners say through their advocate Prashanth Bhushan.

Was Moily the right choice in the first place?

First a rant and then a change in stand. Veerappa Moily who was handed over the Corporate Affairs Ministry after being shunted out as the Law Minister says he has no comments to offer regarding his infamous vested interests comment that he had made yesterday.

I am happy with this new assignment and I am grateful that the Sonia Gandhi and the Prime Minister have entrusted me with this job, he said when asked. I will focus on my new portfolio and this is an important ministry and I will look to take it forward by doing some very good work.

Moily’s exit from the law ministry was an expected one and as the Supreme Court began to pile on the misery on the Government of India almost all had said that the law minister will be the first target during the re-shuffle. Moily did come across as a person who was interested in judicial reforms and certain statements made by him did indicate the same. However his critics say that they remained mainly statements and even blame him for not being assertive enough when it came to taking hard decisions.

This brings us to a crucial question as to how important is the position of a law minister. Several lawyers point out that it has not been a very high profile ministry but in today’s context when there are more scams than ministers in a government, the position of a law minister becomes extremely important in nature.

Former Law Minister of Karnataka, M C Nanaiah who was the leader of the opposition when Moily was the Chief Minister has this to say about the recent development.

I personally have seen Moily functioning very closely. He lacked a crucial quality and that was to keep his team together. In today’s context, the Law Ministry is a very crucial post. The government is battling many cases and hence a strong law minister is required. The government is going through a very rocky phase as of today and Moily on the other hand had been shooting his mouth off too much which in turn has only angered the government. It looks as though by making this change, the government was looking for a more sane and competent person.

A law minister needs to be an expert and a proper aptitude is required for this post. The statements that are made by a law minister need to carry weight and I would not rate Moily very high. Even during his tenure as the Chief Minister, he did not carry the conviction that was required.

With the government facing the flak of the Supreme Court today, it is the law minister who has to coordinate the law officers and face the court. Today unfortunately for Moily who should have been more pro active it is not the vested interests who have ensured this change, it is his own vested interest which has brought about the change for him.

Just after being changed, Moily had said in New Delhi that no one likes reforms and he was doing everything to introduce a change. A lot of things are the fault of the administrative ministry and it has nothing to do with us. We are only the face in the court, he had also said. However today Moily refuses to comment on all that he had said yesterday and only says that he is looking forward to his new portfolio. My top priority today is to pass a new bill which would replace the  Companies Act. I have to see this bill through and this is a major challenge before me he also added.

Sources in New Delhi however add that the issue is not all that simple. The government found the law ministry to be a completely mismanaged one. There were dual representations in the 2G scam where Gopal Subramainam was concerned and this had led to several conflicts of interest. The ministry has come under fire several times and to add to the head ache the Supreme Court was going hammer and tongs against the Government. In New Delhi they were looking for a man with more aptitude and also who could be more assertive by nature. In Moily they found more of an academic and they were looking for someone more shrewd. Moreover he was also dealing under the shadow of a very pro active former law minister, H R Bharadwaj who on several levels was considered to be the perfect candidate for the post.

Justice Santhosh Hegde, former Judge of the Supreme Court of India says that the duty of the law minister is to advise the government on all matters before the Supreme Court of India. If the Supreme Court has taken up an issue suo motu, it is for the Law Minister to advise the government on how to go about it.

I however will not accept the argument that a law minister has to be a constitutional expert. No person can an expert on all subjects and political and legal personalities are completely different. As a law minister apart from having a fair idea of the law, he needs to be diplomatic. In the case of Moily, I think he has been changed mainly because the government did not find the representation before the Supreme Court effective enough. What Moily ideally had to do was to take stock of the situation and advised the government properly. The cases before the Supreme Court are of supreme importance and it is the job of the law minister to ensure that the government is represented properly before the court.

SIT for black money probe-its unique

The Supreme Court of India issued a very unique order today when it directed a Special Investigating Team be set up to monitor the investigation into the issue of black money.

Former judges say this order is a commendable one and the intention was obvious that it wanted to set up a body which is independent of any political interference.

Justice M F Saldanha, former judge of the Karnataka and Bombay High Court says that the Supreme Court does appoint panels to over see matters and the order that was passed was very much within the right and powers of the Supreme Court. However setting up an SIT is unusual in nature since the Supreme Court has not done something of this sort before.

However what we need to look at is that the Supreme Court has made its intention very clear. They have clearly stated through this order that it does not trust anyone but itself to monitor the investigation. Usually the Supreme Court in earlier cases has said that it would monitor the investigation directly and the investigating agency would report to it directly. However now what it has done it has set up an exclusive body which would monitor the on going investigation. This body is independent of any agency and would report exclusively to the Supreme Court of India.

In the case of black money the allegation is that each and every political party has some stake in it and the court took into account that precious little was happening because of this.

What setting up an SIT would do is that it would dedicate itself to this case. The situation where black money is concerned is grave and hence such a body was needed. It is unusual and innovative on part of the Supreme Court since such a thing has not happened before.

The SIT appointed by the Supreme Court would act as a watch dog. Although it would only monitor the investigation it would still have powers to order the investigating agency the manner in which the probe needs to be conducted. More importantly it can pull up and also question the investigating agency about the probe and also ask it to look in the direction it would want it to. It can call for records and also direct the investigating agency to speed up the probe.

However this body would have to report to the Supreme Court from time to time and can only disclose details regarding the probe to the court. However it would all depend on how the Supreme Court handles this committee. The government as we have seen in the past is quite capable of frustrating the process and the Supreme Court as well as the SIT would have to deal with these aspects.

We need to see whether this innovation on part of the Supreme Court would work or not. But I must add that it is a very important and innovative order on part of the court.

This team would be slightly different when compared to the rest of the committees appointed by the Supreme Court. The other committees have been more of fact finding institutions which go into issues by itself and also rely on the rest of the agencies. However the SIT is an independent body which will be an authority over all the agencies which are looking into the issue of black money. Basically one would have to say that the jurisdiction of this SIT is very vast.

BJP troubles over for now

All the troubles in the Bharatiya Janata Party in Karnataka have come to an end for now, will all 11 rebel MLAs deciding to return to Bangalore and be part of the B S Yeddyurappa government. After nearly two days of negotiations with the rebels in New Delhi, it was decided that the time had come to make up for lost time and provide stable governance for the next two years in Karnataka.
The 11 rebels had moved the Supreme Court challenging their disqualification and on Friday the court had reversed the order of disqualification passed by the speaker. The rebels today said that they had no demands and would join Yeddyurappa and provide a stable government for the next two years. OUr main priority will be to make up for the neglect of our constituencies due all these issues and we will strive hard to work for it, they also said. There have been mistakes committed in the past by both us and also the Cheif Minister. The issues are all now resolved and each one is ready to amend those flaws and work for the people of Karnataka.
Some confusion however prevails over the allocation of portfolios for these rebels. During the negotiations it was decided that they would agree to whatever the high command had to say. The high command will in the coming days decide on who should get a ministerial berth and who should be made chairpersons of boards and corporations.
All the rebels who were in New Delhi are now on their way to Bangalore. They are expected to meet with the CM and assure him that there would be trouble free governance from now onwards.