Sivaganga Shows Us How Hollow Has Become Indian Democracy

Posted on June 11, 2012 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

Sivaganga representative in the Loksabha, P. Chidambaram has failed in his case against the election case filed against him in the Madras High Court. Yet he has remained the Home Minister of India and asserts that there are 111 election cases pending against elected MPs in Courts in the country and, hence, there is no necessity for him to resign.

His challenger Mr. Raja Kannappan of AIDMK claims that he had secured 3,34,348 votes as against Chidambaram’s 3,30,994. But by manipulation, the powerful central minister was declared elected by a margin of 3,354 votes. Among many other allegations found triable by the Court, one is: bribing of thousands of women voters belonging to self-help groups at the rate of Rs.500 each through his son Karti Chidambaram.

Chidambaram had tried to get the election petition quashed, first on technical ground, which the Court had turned down. Then he had filed a misc case seeking rejection of the election petition on the ground that it does not disclose any cause of action. This misc case is rejected too, with the observation that cause of action is convincingly disclosed.

The Court on June 7 has said, “A perusal of the various averments made in the election petition shows that sufficient material facts were made and it discloses cause of action for trial of the election petition. It also contains adequate statement of material facts on which the allegations of irregularities or illegalities in counting were founded … The contention that the election petition does not disclose any cause of action cannot be accepted.”

So, even before the final verdict comes on the election petition, it is established that Kannappan has adduced sufficient and strong material facts to justify Chidambaram’s trial for corrupt practices in election.

It is strange that instead of cooperating with the Court to close the case on proper hearing within the stipulated time, Chidambaram has played the dilatory tactics of filing misc cases one after one and stayed a MP and a Minister by stymieing the process of law, thereby denying the people of Sivaganga their legitimate right to be represented in the Loksabha without any stink of infection on democracy.

The shrewd fellows like Chidambaram are able to hijack democracy because of lack of exemplary punishment and because of absence of specific election courts.

Elsewhere in these pages we have, time and again, stressed upon creation of Election Courts in every state or Election Benches in every High Court and also in the Supreme Court with the only assignment of deciding election petitions.

From Chidambaram’s assertions it transpires that, like him, there are one hundred and eleven MPs, who are facing election cases, which means, in those 111 Loksabha constituencies, people are, because of delay in disposal of the cases, in dark about whether they have legal representation in the rampart of democracy.

Fortunately for R.P.Swain of my area, his petition has ended in his favor in both the Orissa High Court and the Supreme Court, a bit earlier; as a result of which, re-election has already been held in Athgarh_Tigiria and he has returned to the Assembly, whereby the people of my area have been able to have their legitimate representation in Orissa Assembly.

But the people of Sivaganga Loksabha Constituency are devoid of this opportunity as yet. So also, people of 111 Loksabha Constituencies in the country, of which Chidambaram has mentioned to pooh-pooh the Opposition demand for his resignation.

The fellows who manipulate elections also manipulate judicial systems to stay in illegal occupation of berths in Legislatures; because there is no specific Election Courts to decide the election cases within stipulated time.

Under subsection (6) of section 86 of the Representation of the People Act, 1951 the High Courts are required to adjudicate upon election petitions continuously on “day to day” basis until their conclusion, whereas subsection (7) declares that “every election petition shall be tried as expeditiously as possible and endeavor shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court on trial.”

But normally as the High Courts are overloaded with cases of all natures, disposal of election cases, though essential for democracy, are in most cases, not even heard within the life time of a House constituted on the basis of the elections challenged.

This being a reality, the Second Administrative Reforms Commission had recommended for setting up of Special Election Tribunals to expedite timely disposal of election petitions.

But, as non-existence of such specific Tribunals/Courts are more suitable to shrewd fellows who occupy legislative berths illegally and become ministers, the above recommendation is never attended to.

Therefore, in these pages, we have been harping on about the necessity of creation of such Tribunals/Courts by Supreme Court through appropriate case laws.

In Chidambaram matter, howsoever belated it be, the Court has now removed the stymie he had cleverly put to its proceeding in the main case.

Instead of welcoming the decision and assuring to cooperate with the Court to conclude the case as quickly as possible by hearing the case “from day to day”, Chidambaram has started bragging about how his case is one of 111 such cases pending in the Courts!

Had he been any idiot in politics, the braggadocio could have been not such offensive. But he is the Home Minister of India. And, his conduct affects the country.

Will the Prime Minister wake up?

He is appointed and continues in the cabinet on the pleasure of the Prime Minister. So, it is incumbent upon the Prime Minister to say as to whether his Home Minister should resign following the rejection of his plea in the election case against him or continue to convert the case to a time-consuming instance of legal acrobatics till the life span of the present Loksabha passes away and the election case becomes infructuous.

Otherwise, this case shall show us, how hollow has become Indian democracy in the hands of Dr. Singh and his team.

Filed under: Animadversion, Editorials, elections 2009, judiciary, law and order, news, politics, Uncategorized | Tagged: , , , , , , , , , , | 1 Comment »

Election 2009: Returned Candidate’s Plea Rejected in the High Court, But Far Away is Justice for the Rejected Candidate

Posted on May 27, 2012 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

In the 2009 election for Orissa Assembly, Returning Officers were used to reject the nomination papers of candidates that were seemingly disadvantageous to the ruling party.

In only these pages, this aspect is discussed in matter of Ranendra Pratap Swain in Athgarh as an instance.

Exposed only in orissamatters.com, – no other media had touched this point – the ruling party, after defeat of its conspiracy in even the Supreme Court, in the Court caused reelection, had to make Swain its candidate again to save its face and to keep the Constituency under its clutch, as Swain was certainly to win.

North Bhubaneswar is another instance where the Returning Officer “improperly and illegally rejected” the nomination papers of promising candidate Gyanendra Kumar Tripathy as a result of which the ruling party candidate Bhagirathi Badajena could bag the seat.

Tripathy preferred an Election Petition (Election Petition No.8 of 2009) in the High Court of Orissa. Badajena adopted dilatory tactics by filing objection to its maintainability, which the Court registered as a Misc. Case (Misc. Case No.6 of 2010) and once the Misc. Case was registered, took several adjournments, though he was legally required to prove his points sans any delay. Had he not played the dilatory tactics, the Misc. Case as well as the Election Case could have been decided in 2010.

Badajena had coined his Misc. Case on false and baseless pleas; but as there were points of law, the Court could not instantly reject his objection and posted the case to hear him. he did not cooperate and continued to seek adjournments as a result of which so vast time had to elapse in deciding the Misc.Case.

Justice Indrajit Mohanty ultimately heard the Misc. Case on 12 March 2012 and has delivered his judgment on 18 April 2012.

He has rejected the pleas of Badajena (the returned candiade) in a brilliant analysis of all the points of law he had raised and the baseless allegation he had made in attempt to mislead the Court. As for example, absence of an affidavit in Form No. 25 was made a point of objection to Tripathy’s case, claiming that Section 81(3) of the Representation of the People Act, 1951 and Rule 94 of Election Rules make such affidavit in this particular Form an unavoidable must for maintenance of an Election Case. But this Form is a must only if the election dispute is raised on the ground of “corrupt practices” and not otherwise. “On a careful reading” (Para 13 of the judgment) of the election petition the Court found that “there is no specific allegation of “corrupt practice” made by the election petitioner. Justice Mohanty has clearly mentioned, “I am of the considered view that since the election petitioner has not made any allegation of corrupt practice in his election petition, there is no requirement for him to make any affidavit in Form No.25 of Election Rules, 1961”.

So, on basis of factuality and in analysis of points of laws such as on animo attestendi and “substantial compliance” of the requirement of Section 81(3) of the 1951 Act, Justice Mohanty has rejected Badajena’s questions on maintainability of the Election Despute raised by Tripathy.

So, the hindrance willfully created by the returned candidate to decision on the election dispute has been appropriately removed by the High Court of Orissa.

Justice for Tripathy should no more be delayed. The Court should now follow the precedence it has created in Athgarh case. Yet, as there is no specific election bench of the Court, we apprehend, justice for Tripathy is far away.

In this context, we again put our emphasis on the need of separate and specific Election Bench to give justice to election petitioners that are victims of the mischiefs played by the Returning Officers and other players that endanger Democracy.

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Swain Returns to Assembly // NOW THE QUESTION IS: WHAT WOULD HAPPEN TO THE PERIOD UNDER NULLIFICATION?

Posted on March 21, 2012 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

Ranendra Pratap Swain, victim of BJD’s internecine leg-pulling in 2009 elections to Orissa Assembly won the re-election at Athgarh, which he could have also won at that time had his party not sabotaged him, using the Returning Officer in illegal rejection of his nomination papers.

BJD had spent, according to a source in that party, about a crore of Rupees against Swain in litigations up to the Supreme Court by engaging, off the records, costliest lawyers of the country in defense of Swain’s rival, Ramesh Raut.

Raut was working like a pageboy in BJD office before being clandestinely readied to file nomination papers against Swain, that had made him de facto candidate of that party after success of the scheme to keep Swain out of fray.

Where from he got the massive amount of money to defray the costliest lawyers’ charges? Possibilities are two: (1) the BJD that had coined the scheme to block Swain’s re-entry into the Assembly for reasons discussed earlier in these pages, had borne Raut’s litigation cost. (2) after being elected to the Assembly, Raut had amassed such massive amount of money that he had no difficulty in defraying the huge cost of litigation.

When there are peons and night watchmen that have become multimillionaires by exploiting the climate of corruption the Naveen Patnaik’s government has created in Orissa, it cannot be said that it was not possible for Raut to amass huge money after being a MLA in the same climate .

But which of the above two possibilities is the reality can be ascertained if official agencies detecting tax evasion are asked to investigate into Raut’s litigation cost.

Swain’s return that has exposed the foul play BJD had played at Athgarh craves investigations into the financial foul play enacted in the intervening period, which is yet kept shrouded under mystery as yet, though it smacks of secret income and tax evasion.

But as far as Orissa Assembly is concerned, the question that Swain’s return has raised is unique and urgent.

The Orissa High Court had stripped layer by layer the illegalities resorted to in rejection of Swain’s nomination papers and declared the election in Athgarh null and void. Raut had challenged the HC verdict in the Supreme Court, but failed. So, legally, election of 2009 in Athgarh was no election.

In view of this, Raut’s participation, if any, in the Assembly must stand obliterated with retrospective effect. Had the Court order does not allow Raut to have any life as a member of the Assembly as his election is declared null and void.

So, now, it is the minimum duty of the Speaker to delete from Assembly records the participation of Raut in its entirety. When he is legally not a member since the day of his election, his oath as a member of the House must also be deleted. Therefore, all the salaries and perquisites he has received as MLA must be must be calculated in terms of money and recovered from him with retrospective effect. The Assembly accounts section should immediately be asked to complete this calculation and communicate the the same to him demanding recovery thereof. If the Speaker prefers to waive such dues, he can do so maximum up to the day of the High Court order. The HC order had unseated him with retrospective effect. Had he resigned immediately, the salaries and other benefits he had drawn might have seemed justifies, as, on the strength of the election, he had participated in the Assembly businesses till that day. But by not resigning from membership and going instead to the Supreme Court, he had continue as a member subject to decision of the Supreme Court and drawn the salaries and perquisites commutable in terms of money at his own risk. So, from the day of the High Court order till the day of his termination, whatever he has received materially from the Assembly was undue receipt. The Speaker has no prerogative to waive the dues he has received unduly by pursuing the luxury of litigation in the Supreme Court.

So, besides deletion of every participation of Raut from the Assembly records, it is incumbent upon the Speaker to recover from Raut the money he has unduly drawn from the House and to declare Swain as the representative of the Assembly with retrospective effect from the 2009 elections, activating his membership only from the day of his oath taking for financial purpose.

Anything else would create wrong precedences in handling the period of nullification as the election of 2009 in Athgarh has been declared unchangeably null and void.

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To People of Athgarh, Ranendra Pratap Swain Should be the Choice

Posted on March 8, 2012 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

Athgarh being my home area, where there are people who genuinely love me and often seek my advice even in their personal/family matters, I wonder, what should my people do in the re-election from Athgarh constituency to Orissa Legislative Assembly?

Had I not been on a foreign tour, I would have campaigned for Ranendra Pratap Swain, because, I feel he should be the choice.

His only drawback is that he is a BJD candidate. Again, it is his plus point.

Let me elaborate.

The viewers of orissamatters.com know that I have shown in earlier discussions how BJD had conspired to keep Swain out of the Assembly, as it is he, who, despite being in the treasury benches, was the voice of conscience against whatever wrong the government was carrying out. Under pressure from above, the Athgarh Returning Officer had replaced his original party ticket lying in his safe custody with a xerox copy and rejected his nomination on the ground of non-submission of the original and inked document. I could have taken it that, keeping the issuance of the party ticket pending till the last moment, the BJD office had issued only the xeroxed copy of the ticket with the party stamp to Swain with the hope that with no time left to submit the papers, he would rush to the RO office and submit the same sans verification at his end. Swain being the sitting MLA had no reason to disbelieve the ticket so received from the party. The issuer of the ticket must have calculated this in advance; as otherwise, a pageboy of Swain’s local office at Athgarh could not have been ready with his papers before Swain and submitted the same and ultimately emerged as the party supported independent candidate dazzling the voters with active campaign conducted in his support by the BJD supremo-cum-Chief Minister Naveen Patnaik. But the way, the same pageboy fought the election case up to the Supreme Court engaging costliest lawyers of the country, with the party keeping mum over the entire period, made me convinced that BJD had deliberately played the trick. To represent such a party is not a compelling cause for choice.

But, yet, this is Swain’s plus point.

That, the same BJD has made him its candidate is a victory for Swain. He has made his party understand that its steps were wrong. Despite the discernible subterfuge, Swain has never gone against BJD and its President. This is the greatest proof of his adherence to discipline and principle, which has become very rare in politics.

This is why I feel Swain should be the choice of my people at Athgarh.

It would be not out of place to mention of how forty poor persons have died most pathetically last month in areas not quite distant from Athgarh by consuming liquor, allegedly spurious, leading to resignation of A.U.Singhdeo, the Excise Minister of the relevant day.

This reminds me of Kalandi Behera, the then Excise Minister, who had to resign on 25 April, 2006 after liquor, allegedly spurious, had taken toll of 39 lives in Ganjam, the district of the Chief Minister. Behera had planned to open liquor shops in every nook and corner of Orissa including school areas. And, to fulfill his purpose, an excise policy was created under Notification No.520/2004/1410/Ex dated 28.2.2005. I was the first and the only one to have attacked this evil design in these pages on August 28,2005 under the caption “Orissa is in the worst phase of her life”. Naveen Patnaik’s government wanted to legalize Behera’s design by giving it the shape of a Law. Orissa Excise Bill 2005 was accordingly produced. Before the Bill was adopted, Behera had to go as people of Ganjam started abusing the Chief Minister openly alleging that he was patronizing the hooch mafia as no action was taken against the culprits even after repeated death due to spurious liquor.

After Behera resigned, Debi Prasad Mishra, who represents Baramba constituency from my Sub-Division, succeeded him and the Bill was revived.

Famous Gandhian Smt. Sarala Devi campaigned against the Bill. No political heavyweight was seen supporting Sarala Devi. None from BJD, particularly. As she did not get any active political support from even the Opposition (the Congress party) (and the BJP-now in Opposition- was then in Naveen’s coalition government ), she tried to make a written appeal to members of the Assembly wishing their conscience to wake up to reject the Bill. But she was not permitted to enter into the Assembly premises to do that.

It is Ranendra Pratap Swain alone who stood with Sarala Devi without any care for official position of the Bill. He circulated Sarala Devi’s emotionally charged letter amongst all the members of the House inside the Hall and succeeded in stopping the instant passage of the Bill. It was then sent to a select committee formed with Swain as a member.

It was everybody’s impressions that the government was determined to get the Bill get the select committee approval. But Swain, despite being a ruling party frontbencher, stoutly opposed the intent of the Bill and the select committee had to pass it with single note of descent that Swain had expressed.

This is why I feel Swain should be the choice of my people at Athgarh.

It is Swain again who to the chagrin of the CM had supported the protest of Sambalpur region farmers and general public against allocation of water from Hirakud reservoir to big industries.
It is he, and only he amongst BJD MLAs, who had vehemently opposed the official proposal to give Anil Agrawal 10,000 Acres of land for Vedant University at Puri.

He was the man who had on records supported the Niyamagiri campaign and demanded that the mines monger be not allowed to tamper with living environment and natural faith epitome of the tribes.

In the Assembly, every now and then, Swain was seen as the pro-people voice against administration as and when executive steps seemed anti-people.

This is why I feel Swain should be the choice of my people at Athgarh.

In Athgarh, Swain is being challenged mainly by the Congress and the BJP. When the Congress under prime-ministership of Dr. Manmohan Singh has been working as an agent organization of American interest and has been actively pursuing a nuclear deal that Singh has signed with USA on dotted lines, which, in reality is coined to provide a “bonanza for US firms” (Reuters, August 25, 2007) and “is so clearly in the interest of the United States” (Reuters, August 14, 2007), the BJP reminds us how, when in power, it had drowned the country so much in corruption and destruction of India’s public sector while coloring its misrule as Bharata Udaya that the Election Commission had to use force to put under cover its hoardings, built up all over India by misusing national exchequer. Notwithstanding who are the candidates of these two parties, it would be contributing to nullification of awareness against corruption and misrule if any of them get electoral support.

On the other hand, despite all its failing and anti-people activities, BJD stands on the ground of allegiance to Orissa as the State’s only regional party. Orissa needs a strong political party of her own for safeguarding the interests of the State. In these pages, I have severely criticized Chief Minister Naveen Patnaik for his failings and for misrule. Yet, to me, BJD is better than the Congress and the BJP in in absence of a strong communist alternative. It is Orissa’s own party and should be considered a permanent feature as leaders are always temporary. It should not be allowed to be defeated by either the Congress or the BJP, for misguided faults of its leader.

In a political party where its leader is known by the epithet ‘supremo’, sycophants are the greater dangers than the so-called supremo himself. From the few instances I have mentioned above, it is clear that Swain is not a sycophant.

This is why I feel Swain should be the choice of my people at Athgarh.

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ATHGARH: RE-ELECTION ON THE ANVIL; YET FUNDAMENTAL ISSUES ARE STILL TO BE ADDRESSED

Posted on February 18, 2012 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

The wrong the Election Commission of India had done to people of Athgarh by not intervening in illegal rejection of sitting member Ranendra Pratap Swain’s nomination papers by the Returning Officer in 2009 general election to Orissa Assembly has clamped a fresh election on the voters of the constituency, though the RO, for whose foul play the by-election is necessitated, is not yet punished.

Orissa High Court, on hearing of the case preferred by Swain, had declared the election of ruling party factotum Ramesh Raut null-and-void, which meant, Raut was to be unseated since the very day of his election. But, the secret agents of derailment of democracy, who in the ruling party had contrived the method of using the RO to keep Swain away from the Assembly as he was in habit of castigating the government on the floor of the House for misrule in various departments, did not allow the HC order to work and instead invested massive money in challenging the same in the Supreme Court. Ultimately they failed and therefore the by-election is now on the anvil. The EC will formally issue necessary notifications on Feb.22 and the voters will cast their votes on March 18, if no sudden change of scenario intervenes.

But the by-election is not the final solution to the issues at stake. If they are not solved, we shall have no hesitation in saying that the EC of India, the Supreme Court of India as well as the Speaker of Orissa Legislative Assembly are failing in their duties to democracy.

The Election Commission

As we have discussed in these pages, there is serious lacuna in our electoral system that allows any one who can gain over a RO to make anybody including a prime-ministerial candidate debarred from contesting by getting the officer reject his/her nomination papers on the day of finalizing the list of valid candidates, at a time, when he/she shall have no time to correct the defects, if any.

It had happened in Athgarh.

The RO had received Swain’s papers duly filed and kept them in his custody till the day of preparation of the list of valid candidates. At the time of scrutiny – the last act before preparation of the list of valid candidates – he suddenly declared that Swain’s party ticket was not original as required under the law though he had received the document in original and kept the same in his custody. Refusing to pay any heed to Swain, the RO had rejected his nomination, thereby debarring him from contesting the elections. And, the EC had refused to intervene as there was no scope to intervene.

The High Court had found the conduct of the RO erroneous and the Supreme Court also agreed with this as it rejected the appeal against the HC order.

But all these legal exercises were not necessary if the RO had not acted mischievously and arbitrarily and the EC not failed to undo the wrong order of the RO.

Therefore, we had suggested that EC should create an authority to instantly intervene in case of arbitrary rejection of nomination papers by the RO. Unless such an authority is created, an enemy nation, by gaining over a RO, can derail Indian democracy by debarring a possible Prime Minister from contesting. But the EC is failing in this regard. It should immediately create a layer over the RO to intervene and settle cases like that of Swain so as to avoid such electoral dislocations in future.

The Supreme Court

The Supreme Court of India has finally restored derailed democracy to its track at Athgarh by approving what the Orissa high Court had decided. But the fact that pinches is that the legal process of hearing and deciding the case has taken so much time that the people’s right to be represented through the candidate of their choice is going to be materialized only in March 2012, after long three years of the election. The delay could have been avoided to the maximum extent if both the Courts had exclusive benches to dispose of election cases, as nothing in a democracy is more clamant than settlement of election issues.

The Supreme Court has been pleased to form green benches to decide exclusively the environmental cases as expeditiously as possible. Similarly, exclusive benches to hear and decide election cases may be created, as, thereby only, finalization of election cases in utmost speed can be ensured, we had suggested. But election benches are yet to be formed.

The Speaker

On receipt of the Supreme Court verdict that approved Orissa High Court’s order declaring the Athgarh election null and void, the Speaker of Orissa Legislative Assembly has terminated Raut’s membership.

But the termination should have been done with retrospective effect.

With the Supreme Court order confirming the order of the High Court, the election of Raut being null and void, it is to be treated that Raut was not a member of the House for a day. Hence, all the salaries and allowances he has received from the Assembly as a member need be recovered from him. The Speaker has not passed any order to this effect. Non-recovery of money paid to him will mean non-nullification of his membership till termination by the Speaker, which would mean non-acceptance of the High Court order as fortified by the Supreme Court that has set the election null and void, which, in other words would also mean nullification of the orders of the Courts by the Speaker till termination of Raut’s membership. It would be totally illegal and the Speaker should not refuse to look at this point. But, it seems, the Speaker has failed to look at this.

In interest of democracy, these issues need urgent cogitation.

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In Athgarh Context, What was Expected of the Speaker and the Supreme Court?

Posted on January 7, 2012 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

Athgarh Constituency is not just one of the 147 constituencies of Orissa Assembly.In the context of Indian democracy, it has tremendous significance.

Indian democracy is not as strong we believe. Anybody can gain over a junior officer under threat or by bribe and can debar any sure-winning candidate, even a sitting Prime Minister from contesting the polls by tampering with his nomination papers kept in his custody under election laws. This had happened in Athgarh in 2009 general election. Both the top Courts – The Orissa High Court and the Supreme Court of India – have nullified the election; but the crux of the issue has not been solved. This is why Athgarh deserves specific attention.

In the general elections 2009, its sitting MLA Ranendra Pratap Swain of ruling BJD, seeking fresh mandate, was disallowed to contest by the Returning Officer(RO).

The reason was the RO’s observation that Swain had not submitted ink signed original documents of candidacy and election symbol issued by his party.

Orissa High Court, in deciding the resultant election petition preferred by Swan, held that the rejection of his nomination papers by the RO was blatantly wrong and hence nullified the election with direction for fresh poll in the constituency.

The dispute reached the Supreme Court where the High Court order has been endorsed.

As such the election in Athgarh constituency has been finally and irrevocably nullified.

On receiving the Supreme Court Judgement, the Speaker of Orissa Assembly has terminated the membership of Ramesh Raut, the beneficiary of the RO’s illegal orders and the occasion for India’s Election Commission has arisen to conduct a fresh election there.

But behind this catena of events, significance of Athgarh remains unread on the slates of the two most relevant bodies. They are the Speaker of Orissa Assembly and the Supreme Court of India. I will discuss this

Fault with the Speaker

Orissa’s Assembly Speaker has terminated the membership of Raut after receipt of the Supreme Court verdict. The SC has refused to intervene with the High Court Order and rejected the appeals seeking quashing thereof. This means, the Apex Court verdict has made the High Court order absolute and entirely binding. It would therefore be wrong to do anything that does not comply with the High Court order.

The High Court had nullified the orders of the RO rejecting Swain’s nomination and therefore, had declared the election null and void. This makes it clear that the 2009 election results in respect of Athgarh constituency were struck down and Raut’s existence as the elected representative from that constituency has been legally obliterated with effect from the very day of the election.

In view of this, the Orissa Assembly Speaker had no other way than terminating Raut’s membership with retrospective effect from the day of his oath taking as a member. But the Speaker has not done this. His entire participation in the Assembly stands obliterated with retrospective effect because a legally non-existent person can have no records of participation in the House. Besides, the entire amount of money spent from the exchequer towards his pay and perquisites must be recovered, because for a non-existent member the Assembly cannot spend any money.

The Speaker ought to understand this phenomenon. But the money already paid to Raut may not be recovered from him, as he has received the payments for performances before being unseated.

So, the loss caused to exchequer must be recovered diligently.

Legally looking into the matter, there should be no doubt that no drainage from the exchequer on his accounts is permissible. Hence, the exchequer must be compensated by recovery of the amount spent on Raut from the RO, because of whose wrong decision the money is misspent.

While terminating the membership of Raut, the Speaker should have thought of this and issued a ruling to this effect. But he has not done it.

It was expected of him that he should do it in interest of democracy.

What was expected of the Supreme Court?

In this context, the other august body – the Supreme Court of India – could have created a law to save democracy from the type of danger from dishonest bureaucratic design of the likes seen in Athgarh.

In these pages, when the case was pending before the Supreme Court, we had raised the issue and opined that the Athgarh instance should prompt the Apex Court to issue a mandamus, even though not sought for in the case, making provisions by way of the case law for making publication of final list of candidates legally dependent on time bound disposal of an appeal against the orders of the RO in cases of rejection of nomination papers, as otherwise democracy could be derailed by any mischief maker by gaining over the RO – a junior official – causing even Prime Ministerial candidates debarred from contesting the elections by tampering with nomination papers, as happened in Athgarh, kept in his custody.

It was expected of the Supreme Court to take into accounts the danger of the carte blanche given to a RO to reject any candidate, as the RO did in Athgarh, sans any possibility of immediate intervention by the Election Commission.

It is gainful to recall that Swain, immediately after illegal rejection of his papers, had moved the Orissa High Court for intervention. But the High Court had refused to intervene, as to it, the EC was the competent authority in this matter.

The EC did not buzz, because the powers in the matter of acceptance or rejection of nomination papers were delegated to the RO.

That the RO was blatantly wrong in his decision over Swain’s papers was determined by the same High Court in subsequent days on deciding the election dispute which has, on 9 December 2011, been established with finality by the Supreme Court verdict. But around three long and precious years have been lost for this.

Had a forum to intervene before publication of the final list of candidates by the RO, possibly prejudiced against the candidate, been available, the case that consumed these years of valuable litigant time and debarred the people of Athgarh from having appropriate representation, could have been credibly disposed off on or before 8 April 2009, the last date fixed for withdrawal of candidature there.

So, we were not wrong in expecting such a judicial law or mandate from the Supreme Court for creation of a forum to immediately review the RO’s order in case of rejection of nomination papers in the style Athgarh witnessed, and to save democracy from derailment by mischief makers or the Country’s enemies hand-in-glove with a dishonest or treacherous Returning Officer.

But it did not happen.

To us, the Supreme Court should pay serious attention to this suggestion, if someone staying in or around New Delhi someday files a Public Interest litigation on this issue, as the political government or political opposition in our country, unfortunately, are too self-seeking to foresee this danger to democracy.

Filed under: administration, Animadversion, elections 2009, judiciary, news, orissa, politics, Uncategorized | Tagged: , , , , , , , , , , , | 1 Comment »

Supreme Court Of India Should Act KR Pura In Matter Of Athgarh

Posted on August 4, 2011 by Subhas Chandra Pattanayak

“We are of the opinion that when a nomination paper is presented it is a bounden duty of the Returning Officer to receive the nomination, peruse it, point out the defects, if any, and allow candidates to rectify the defects and when the defects are not removed then alone the question of rejection of nomination would arise,” the Supreme Court of India has ruled in the matter of a case pertaining to rejection of a candidate’s nomination in RK Pura Assembly constituency of Karnataka in 2008 by the RO in 2008.

Kavitha Mahesh, a candidate, whose nomination was rejected by the RO, not at the time of receiving, but on the day of scrutiny for publication of final list of candidates, facilitating election of Nandiesha Reddy in absence of proper contest, had moved the Karnataka High Court for nullification of the said election on ground of illegal rejection of her papers. That was challenged by Reddy in the Apex Court.

In dismissing Reddy’s appeal, a bench of Justice H.S.Bedi and Justice C.K.Prasad of the Supreme Court has held, “Any other view, in our opinion, will lead to grave
consequences and the Returning Officers may start refusing to accept the nomination at the threshold which may ensure victory to a particular candidate at the election”.

This exact point I have repeatedly discussed in these pages in the matter of rejection of nomination of Ranendra Pratap Swain by the RO in Athgarh constituency.

The observation and ruling of the Supreme Court in RK Pura matter applies entirely to the case of Athgarh pending before it.

The Returning Officer has butchered democracy in Athgarh and that needs to get back life. The Orissa High Court has declared the election of the ruling party’s adopted candidate null and void. But the Supreme Court is yet to deliver its verdict as the case has, through special leave , landed before it.

Democracy cries to get back life in Athgarh. The Supreme Court should not make any delay as revival of democracy should never be delayed.

The issue has been answered by the Supreme Court in RK Pura matter. It should be applied to the Athgarh case as the issue is exactly the same.

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IS IT NOT THE TIME FOR THE CONGRESS PARTY TO CHANGE ITS PRIME MINISTER?

Posted on July 18, 2011 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

How much misrule will convince the Congress party that it is time for it to change its Prime Minister?

In a country of simpletons and sycophants like India, where majority voters are uninformed and misinformed and where corporate controlled media rules the roost in public information and where the election system is suspected of vitiation by maneuverable Electronic Voting Machines and where the main Opposition is a party of profiteers and communal fanatics, it was not surprising that the Congress could bag majority seats of the Loksabha to lead the alliance styled UPA and to have its own man Dr. Mnmohan Singh as the Prime Minister again.

But, Dr. Singh has given such a rule that, instead of saying him to vacate, the Congress general secretary Dig Vijay Singh has already said that it is time, Rahul Gandhi should take over as PM.

Nobody in the Congress has said that Rahul should not take over as the PM. Rather the party spokesperson Jayanthi Natarajan has clarified that Rahul may take over as PM whenever he so decides.

This is reflective of the fact that the Congress party is conscious about the reality that Dr. Singh has become a liability.

In fact, his economic policy has ruined the economy of the common man. The official notifications on ever increasing consumer price index and ever increasing doses of Dearness Allowance for salaried officials is strong enough evidence of the fact that his government has no control over profiteers, over exploiters, over market mafia. The priority he has given to transform India into a grazing ground of foreign, specifically American nuke traders, is conspicuous by its absence in stopping exploitation of the common man by the manufactures and traders of consumer goods.

In every sphere of administration, galore are instances of misappropriation and malfeasances.

The constitutional authority, whose duty it is to locate these dangers to democracy through test audits – The Comptroller and Auditor General (CAG) – is being ignored by administration as in the case of MPLADS or cold-shouldered and criticized by the central ministers including even the Prime Minister himself.

The CAG in its latest report on MPLADS has said that, even though in its earlier reports (1998 and 2001) it had pointed out various lapses in the implementation of the scheme, the government had slept over them for ten and eight years respectively and when Action Taken Notes were finally produced in 2009, it was seen that the same were lackluster notes sans any real address to the issues raised and action against the practitioners of malfeasances shown.

“The current report reveals that many of the shortcomings pointed out in those two Reports still persist”, the CAG has stated.

The current Report has unveiled various types of serious mismanagement of MPLAD funds all over the country. These are such offenses that many MPs should have been taken to task and even censured in the Parliament for having hijacked through masked agents the funds allocated for the scheme in their respective areas. But, instead of that, and without insulating the scheme from MPs’ politico-personal dragnets, the amount of the fund has been enhanced, just to keep majority of them pleased to stay safe in power.

If MPLADS is a sample of how the constitutional authority of audit is being sloughed over or rendered inconsequential in real terms, the 2G spectrum is a matter where even the Prime Minister has not hesitated to embarrass the CAG.

When the apex audit reported a massive loss of about Rs. 1.76 lakh crores to the nation’s exchequer by mishandling of the allocation of the 2G spectrum in 2008, Dr. Singh had came down quite rudely upon its conduct, almost rejecting its report on the 2G spectrum scam without making any mention of it, as inaccurate, imbalanced and unfair. In a CAG conference itself, on the very same day its Report on the scam was tabled in the Parliament, he had told the CAG that it must “ensure that its reports are accurate, balanced and fair”.

He disapproved the way the audits are being conducted.

“We may benefit more if the focus of audit is not so much on minute, individual transactions”, he thundered, because the 2G spectrum audit was minute audit of individual transactions.

As if the CAG in its report on 2G spectrum had indulged in fault finding, made a mere guess of the quantum of loss to the country and therefore had made an unreasonable estimate, he said, “Very often, there is a very thin line between fair criticism and fault finding, between hazarding a guess and making a reasonable estimate, between a bonafide genuine error and a deliberate mistake”. He wanted the CAG “to distinguish between wrong-doing and genuine errors, to appreciate the context and circumstances of decision making process”, as if the CAG’s report on 2G spectrum was a product of lack of its comprehension of “the context and circumstances of decision making process”!

Such Prime Ministerial attempt to demoralize the apex audit body of the country created by the constitution had never been made by any Prime Minister.

Before the seriousness of this vicious assault on CAG is fully grasped by the people, the country is rocked by bomb blasts in Mumbai.

When the central home minister P. Chidambaram has said that, “despite the vast intelligence machinery that is available ………. this one slipped through”, he has also said, “Having no intelligence in this case, however, does not mean that there was a failure on part of the intelligence agencies”. This shows how the central government is running under utter confusion.

Chidambaram’s statement has different ramifications.

On one, it is being assumed that the series of blasts were aimed at derailing Indo-Pak talks. The union home minister also does not differ. This possibility “is not ruled out”, he says.

On another, it may also be assumed that the blasts might have been planned to divert public attention from the growing demands for extinguishment of corruption and retrieval of the monetary wealth of India secreted in black coffers in foreign banks by the traitors in politics, in public service, in trade and industry and their lobbyists.

Whatever be the ramifications, the reality is that, “despite the vast intelligence machinery that is available”, so many persons have been killed and injured in the series of blasts in the same city of Mumbai that was brutalized by Pak terrorists on November 26, 2008. Had the surviving culprit of that attack Ajmal Kasab been hanged in honoring the court order, in time and in the spirit of the verdict, the July 13 attack might have not taken place. But Dr. Singh’s government has, by not helping diligently the President to reject his mercy petition, created a situation for the Supreme Court to save his life. This has emboldened the enemies to terror attack again.

The Supreme Court has made it clear that if mercy petitions are not disposed off within three months of receipt of the applications, the Court would be constrained to commute death sentences to life imprisonments if moved by the culprit.

A Constitution Bench of the Supreme Court in Triveniben vs State of Gujarat had refused on February 7, 1989 to place a time cap on disposal of mercy petitions. Yet, on September 18, 2009, in Jagdish v State of Haryana it has said, “A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and such delays tend to shake the confidence of the people in the very system of justice” and, thus has justified commutation of death sentences to life imprisonment in various instances, in one instance, even saying, “These delays are gradually creating social problems by driving the courts to reduce death sentences even in those rarest of rare cases in which, on the most careful, dispassionate and humane considerations death sentence was found to be the only sentence called for”.

The government of Dr. Singh, by delaying the execution of death sentence “found to be the only sentence called for” in Mumbai 26/11 offense, is foiling the sentence inasmuch as Kasab, the guilty Pak-terrorist, because of the tremendous delay in disposal of his mercy petition, is likely to use the Apex Court orders quoted supra to judicially escape the gallows.

Meretricious sympathy of Dr. Singh with the victims of the 13th July blasts is not going to show that he is not responsible for the climate of Pak-terrorist attacks in Mumbai.

Because of self-defeating politics in Parliament, the country could not know the real role Dr. Singh had played as Reserve Bank Governor and Finance Minister in the matter of the notorious Pakistani Bank of terror funding, the BCCI, which had, despite warning from RAW, been allowed to operate in and from Mumbai.

But if the 13th July blasts in Mumbai took place “despite the vast intelligence machinery that is available” as the Union Home Minister has said, it was because of lack of appropriate monitoring and coordination amongst the intelligence agencies. To make the intelligence agencies accountable, the Home Minister has submitted a proposal to create a National Counterterrorism Centre (NCTC); but Dr. Singh has not cleared it as yet.

Both the Prime Minister and Home Minister are confusing the country by using the term ‘terrorism’ against both the enemies and patriots of the country – against the terrorists from beyond the border and against the Indian progressive radicals – leading to common man’s failure in differentiating between the two types. Therefore, the intelligence agencies have been failing in spotting the cross border terrorist though the common man.

If the difference is not distinguished in the Home Minister’s proposal, the envisaged NCTC will be of no utility for betterment of India, as and when the PM clears the proposal and the central government constitutes it.

But, at the moment, relevant it is that Dr. Singh is sleeping over the proposal of the home minister to create NCTC for ensuring accountability of the country’s intelligence agencies, which might have made them alert enough to catch the culprits before the blasting took place.

No further proof of misrule is necessary. Look at any area, people are in ruins. But the people had never given majority mandate to the Congress party to ruin them. Hence, is it not the time for the Congress party to replace Dr. Singh with anybody that can try to change the scenario and retrieve the country’s dignity?

Filed under: administration, Animadversion, elections 2009, judiciary, law and order, news, politics, Uncategorized | Tagged: , , , , , , , , , , , , , , , | 1 Comment »

Athgarh MLA’s Source of Litigation Fund Needs Be Probed Into

Posted on May 7, 2011 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

Athgarh MLA Ramesh Raut is using dilatory tactics in the Supreme Court to keep obstructed the citizens’ right to elect the candidate of their choice in that constituency.

He was elected from Athgarh constituency to Orissa Legislative Assembly in general elections, 2009, only because the Returning Officer (RO) misused his powers to reject, in discernibly illegal manner, the correctly submitted nomination papers of the sitting and by then the most popular candidate, Ranendra Pratap Swain.

Orissa High Court has declared the election null and void, as to it, the conduct of the RO in rejecting Swain’s nomination papers was blatantly illegal.

Raut has challenged the High Court Order in the Supreme Court; but curiously, has been using dilatory tactics though his lawyers are top ranking lawyers of India such as F. S. Nariman, Harish Salve, Abhishek Manu Singhvi, Pallav Shisodia and Soli Sorabjee.

Raut hails from a very poor family of Athargh; has no known education beyond the primary school level and was a mere page in Swain’s office before filing his papers and hence it can never be accepted that the Returning Officer, who, as Sub-Collector, was the highest administrative officer of the Sub-Division, acted under his influence to remove Swain, a former minister and a political heavyweight, from the list of contesting candidates.

The RO’s daredevilry in writing off Swain from the list of candidates was obviously meant to oblige a secret villain, who the State is yet to identify.

Whether in course of the case the Supreme Court would look at the issue I have raised in this matter in these pages, I cannot say.

But I have shown that the Athgarh RO’s conduct should be viewed as an experimentation on how a Prime Ministerial Candidate, when time comes, could be eliminated from electoral fray by gaining over the RO of his constituency.

If any secret villain was in search of an opportunity to derail Indian democracy by gaining over the ROs, then it can be safely said that Athgarh has written for that person or body of persons the success story.

Yes, the RO can keep any candidate out of fray by rejecting his /her nomination papers, howsoever arbitrarily that be, because the election laws have given the said officer the carte blanche to reject the nomination papers of any candidate notwithstanding the fact that it is possible on part of the same officer to tamper with the papers of the targeted candidate lying for days in his / her custody to create a cause for rejection thereof, as has happened in Athgarh.

If any enemy nation can gain over the ROs or majority of them, which in this country of bureaucratic corruption as well as of the cash-for-question-and-cash-for-confidence-vote-parliament is not at all impossible, democracy can be derailed by playing the tricks with candidates capable of forming government(s) after the elections.

The Athgarh case has proved that election cases raised against wrongful rejection of nomination papers by the RO may take many years to end. And, nobody can say for sure that such cases would end before another election takes place. Thus, by using a RO, any villain can keep any popular and befitting candidate out of legislative houses for an entire term.

Therefore I had argued in my previous article on Athgarh that the carte blanche given to the RO in rejection of nomination papers be done away with by immediate creation of an appellate layer above the said officer, with stipulation that if any aggrieved candidate demands, the final list of candidates in his / her constituency cannot be notified till orders in the appeal against rejection of nomination papers are pronounced.

Even as I insist that it should be proper for the Supreme Court to cogitate upon this issue while hearing the Athgarh case, it would not be out of context to suggest that the Athgarh MLA’s source of finance in defraying the cost of litigation in the Supreme Court needs be probed into.

Lawyers: F. S. Nariman, Harish Salve, Abhishek Manu Singhvi, Pallav Shisodia and Soli Sorabjee that are working for Raut in the Supreme Court belong to the costliest layer of lawyers in the country. Raut does not come from a financial background strong enough to shoulder their fees. Neither his known source of income can defray the expenses. So who is funding him?

Unless he discloses the name of his financier, it can be safely assumed that somebody working secretly against Indian democracy, who used the Athgarh constituency as a laboratory to test if a RO could be successfully used to derail elections, is certainly ghost-paying the lawyers for Raut or paying them through Raut.

In the best interest of democracy, therefore, it is imperative that the details of the person or body of persons who is financing the Athgarh MLA in his case before the Supreme Court and the motive behind such financing be probed into immediately.

If the authorities in power have any dedication to democracy, one may hope that this suggestion would be taken into cognizance.

Filed under: Uncategorized, Editorials, politics, orissa, elections 2009, judiciary, law and order, administration, Animadversion | Tagged: , , , , , , , , | 2 Comments »

People of Athgarh Apprised Indian EC of How A Returning Officer Can Damage Democracy

Posted on January 13, 2011 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

The only duty of the Election Commission (EC) of India is to conduct the elections to the Parliament and Assemblies. To discharge this duty perfectly, the EC has been vested with the powers of “superintendence, direction and control of elections” under Article 324 of the constitution of India. But it is enjoying these powers while neglecting its duty. This is why election cases are so remnant.

Athgarh in the district of Cuttack (Orissa Assembly Constituency No.89) offers enough materials to study this syndrome. There are several postings in these pages on how it is a victim of the EC’s negligence to duty. But the EC has not yet thought it prudent to react to the points raised therein, though democracy requires its reaction.

A mere Returning Officer (RO) at the base level, who by virtue of being the sub-collector of Athgarh sub-division was made the RO, obliged the political rivals of the sitting MLA of that constituency by intentionally rejecting his nomination papers on false and fabricated grounds on the day of screening and then issued to EC a list of valid candidates excluding the name of that candidate.

On the table of screening, the RO declared that the nomination papers submitted by the sitting MLA Ranendra Pratap Swain did not have the support of a valid party ticket as the same was a xerox copy, not signed in ink. This was contrary to actuals, as the same RO had received the original party ticket signed in ink personally on the day of submission of the nomination papers and had kept the same under his custody beyond reach of any other person. The RO had issued receipt thereof and declared an unambiguous check list. Despite this, he had the audacity to say that the party ticked submitted by the candidate was not the original, but a xeroxed one. Who but the RO could have made a xerox copy of the party ticket when that was in his custody?

Clearly, the RO sabotaged democracy at Athgarh.

Swain had moved the EC to intervene immediately so that the wrong perpetrated by the RO could be removed and he could contest the election. But, the EC refused to step in. Orissa High Court, as mentioned in the older posting, has nullified the election and declared that “a casual vacancy is created relating to 89-Athgarh Assembly constituency thereby”.

People of Athgarh, in a memorandum to the Chief Election Commissioner during his visit to Bhubaneswar to inaugurate the EC’s eastern zonal symposium on “sharing best electoral practice”, have brought this matter to his notice and demanded that to save democracy from further misuse of ROs in future, “There should be at least one layer of appeal in the EC mechanism to give justice to a victimized candidate so that killing of democracy as has happened in Athgarh constituency by the RO shall not happen elsewhere any more”.

The memorandum signed by Satyaprakash Rath and others was handed over to CEC on January 11. In another memorandum signed by Sidhartha kumar Das and others, the CEC has been moved to unseat the elected MLA of Athgarh, Ramesh Raut on evident allegation of false affidavit during filing of nomination papers.


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