JUDICIARY HELPS DEMOCRACY AT ATHGARH, BUT THE ISSUE IS DIFFERENT

Subhas Chandra Pattanayak

In these pages, on April 7, 2009, under the caption “Spirit of democracy is in danger at Athgarh: EC must immediately interfere”, I had noted:

Obliteration of BJD candidate from the election scenario in Athgarh on flimsy / misconceived / misconstrued technical grounds is nothing but denial of voting rights to the voters who should, as members and supporters of BJD, have certainly voted for Sri Swain. This is nothing but a bureaucratic assault on democracy.

I am happy that the Orissa High Court has nullified the rejection of nomination papers of Swain and tried to save democracy from bureaucratic assault.

But the High Court’s verdict also stands on technical defects in the order of the Returning Officer;when the real issue staying away from its purview, has not been judicially tested.

The real issue that is more relevant to democracy revolves round the conduct of the Returning Officer (R.O.) as well as the Election Commission (EC). Had the EC heard Swain in right earnest and corrected the wrong committed by its agent, the R.O., the situation for the case before the High Court should never have developed.

In my article cited supra, I had mentioned;

A section of voters belonging to the Athgarh Assembly Constituency in the District of Cuttack are subjected to a situation where they cannot vote for the candidate of their choice in election 2009. The Returning Officer has virtually preempted their democratic participation by rejecting the nomination papers of BJD candidate Ranendra Pratap Swain on technical ground. But the ground is very flimsy and in fact mischievous enough to render voting right of those citizens inconsequential.

The Returning Officer believes that he is right in rejecting the nomination papers of Sri Swain. He cites election guidelines in support of the action he has taken. The guidelines say that a candidate of a political party shall have to annex the party ticket to the nomination papers. In Swain’s case, at the time of scrutiny on April 6 it was found that only the Xerox copy of his party ticket was annexed, not the original. Hence, his nomination papers were rejected.

This technicality kills the spirit of democracy.

Democracy is a moving political system. It cannot be stymied with misconceived guidelines of the Election Commission or by bureaucratic blunt heads. …………………………………..EC is empowered to conduct the election. He is not empowered to conduct non-election of any candidate by his party members and supporters. In rejecting Ranendra Pratap’s nomination papers the Returning Officer acting on behalf of the EC has tried to play exactly this mischief.

If the R.O was right that the party ticket submitted by Swain was not in original but merely a Xerox copy thereof, I had argued that it was the R.O.’s duty to collect the ticket from BJD or to ascertain the correctness of the Xeroxed ticket placed before him by tallying the issuing authority’s signature with the signature thereon. But the R.O. has failed to do this and instead has created a severe dislocation in peoples’ duty to elect their preferred representative.

In yet another article on April 15, 2009 titled “Election Commission strangulated democracy at Athgarh: whither has gone judicial activism?” I had noted in these pages:

BJD members had proposed Swain’s name as their party candidate for Orissa Assembly from Athgarh in the ensuing election. They had attached the party ticket, which was received by them from the BJD office. The R.O. determined that the party ticket was a Xerox copy, but not the original and consequently, after lapse of two days, rejected it. It was not a proper step. The R.O. should have tried to ascertain from BJD as to whether or not the Swain was its official candidate. The time gap between submission of nomination papers and scrutiny thereof was meat for that. If the EC has not trained the R.O. to use the time gap in this respect, then it is the EC’s fault.

However, if the candidate is not declared disqualified on the basis of constitutional stipulations and if the Party concerned has not disowned the ticket or the candidacy, the nomination papers should never have been turned down under the plea that the party ticket was a Xerox copy, not the original.

Unless an allegation of forgery is specifically raised, the Xerox paper is to be treated as a legal document. It is well settled that fax messages are as genuine as original and administration is running on faxed messages if specimen signature therein tallies with that of the authorized person. Except the mode of transportation, there is no difference between a faxed document and a Xeroxed document. . The R.O. should have studied the signature on the Xeroxed copy of the BJD ticket with that of the specimen of the authorized officer of BJD available with him and should have accepted the same on further verification if thought prudent. But he should never have created a situation for abstention of voters in Athgarh constituency as no law can compel them to vote for anybody who is not their party candidate.

When Swain appealed to the EC against the decision of the RO, the wrong could have been rectified. But sadly and surprisingly, the EC decided not to apply its mind in favor of applied democracy. This has given birth to a typical stymie on political participation of a section of qualified citizenry in election. The right to vote guaranteed under the Constitution is in jeopardy under an executive order issued by the EC in Athgarh constituency.

I still stand by the issue I had raised in these two articles. The crux of the issue is: whether the R.O. had not erred in his duty by not ascertaining from BJD the genuineness or otherwise of the party ticked submitted by Swain.

On the other hand, when the High Court, as reported, has determined that the R.O. was wrong in rejecting the nomination on ground of absence of party ticket in original because receipt of the original ticket was duly acknowledged by the R.O., it is necessary that the same R.O. notwithstanding his present posting must now be prosecuted against for having deliberately acted against democracy in Athgarh context.

Ramesh Raut, whose election to Assembly from Athgarh has been nullified on the ground of nullification of rejection of Swain’s papers has claimed that he cannot be held responsible for defects with the R.O. and therefore, the mandate of the majority of voters of Athgarh in sending him as their representative to the Assembly should not have been nullified by the High Court, may give an opportunity to the Supreme court to review the entire matter. If it happens, it would be proper for the Apex Court to react on the issues raised above by determining the responsibility of the concerned R.O. with matching punishment.

Otherwise, there should be no hesitation in holding that rape of democracy goes unpunished in our country.

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