Freedom of Press should not be used to abuse, says Justice Anang Kumar Patnaik of the Supreme Court

Posted on November 21, 2012 by orissamattersbbsr

By A.K.Mohapatra with pictorial input from Dhirendra Kumar Das
Freedom of Press should not be used to abuse any individual or institute in manners conducive to public mischief, advised Justice Anang Kumar Patnaik of the Supreme Court of India, while felicitating distinguished senior journalists at Bhubaneswar on 16 November 2012 at the behest of National Journalists Welfare Board, on the occasion of National Press Day.

The Right to freedom of speech and expression enshrined in Art.19 (1) (a) of the Constitution is conditioned with reasonable restrictions and hence, the axiom of freedom of press generated by the Supreme Court of India out of the said Article should not be taken as absolute freedom, he said. Making a mention of Lord Leveson Commission constituted by UK to look into culture, practices and ethics of the media, which has given birth to broiling debates there, Justice Patnaik cautioned the journalists that if press in India is to stay free from any official formulation, they should adhere to the environment of self-regulation.

Recapitulating how he was inspired by certain scribes of Orissa in his formative days, Justice Patnaik lauded the press persons for their contributions to India’s pre and post independence role in shaping up a better world to live in. Therefore to him it was a great pleasure to have an opportunity to felicitate some of the leading lights of journalism, he said.

The event was supported by Central Government’s Press Information Bureau, Field Publicity Directorate, All India Radio – Cuttack, Door Darshan Kendra – Bhubaneswar and Amit College of Journalism.

Eminent author and Editor of Samaya, Satakadi Hota was felicitated with ‘Sambadik Ratna’ award even as ten distinguished senior journalists of Orissa were felicitated with accompanying pension organized by NJWB, which is considered first of its kind in India. Four Journalists from outside Orissa – Santos Pande, Deepak Kumar Rath, Punit Nanda, and A. Santosh – were also felicitated with Sambadika Gaurav decorations.

Rajyasabha member Baishnav Parida announced allocation of funds for a well equipped Ambulance to be used for journalists under medical exigencies, which the concerned officials would draw from his MPLAD accounts.

Minister S. N. Patra, Minister Arun Sahu, Mayor Anant Narayan Jena, local MLA Bijay Kumar Mohanty, besides Sri Parida addressed the event that was preceded by a symposium on Freedom of Press in the forenoon.

Ms. Shanti Snigdha Mohapatra was felicitated with Rabi Mohanty Memorial Shield for having achieved the first position in Journalism under the Utkal University.

The event was presided over by journalist Pradosh Pattanaik.

NJWB General Secretary Sanat Mishra coordinated the function and Vice-President Pradyumna Mohanty proposed the vote of thanks.

On behalf of the state department of Culture and Door Darshan Kendra Bhubaneswar, eminent music director Basudev Rath and Bikash Das conducted a grand program of entertainment in honor of the Press Day.

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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.

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Pending Determination of Unsound Mind, Singhvi Should Quit Parliament

Posted on April 25, 2012 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

“Assuming them(the contents of the CD) to be true, (which they certainly are not), would disclose only something private and consensual giving a cause of action only to aggrieved family members (who have stood completely by me) and to no one else” (Abhishek Manu Shinghvi when resigning from the Chair of the Parliamentary Standing Committee on Personnel, Law & Justice ).

If his carnal conduct “assuming” to be true, as he says, was “private and consensual giving a cause of action only to aggrieved family members” is worth legality, Singhvi is certainly not qualified to claim that “no one else” has any right to find therein any “cause of action”.

He is a member of India’s Parliament in the Rajyasabha and that gives every citizen of India the right to be worried if his “private” conduct dismantles the discipline and probity expected of him.

The video in question displays indecent scenes of sex indulged into by a male who looks like him when he was still the head of the Parliament’s Standing Committee on personnel, law and justice and a female whom a lady lawyer of Delhi has identified as a lady lawyer she knows.

Before the general public could know of this video, Singhvi, an astute lawyer well versed in the tricks of law, succeeded in putting a judicial injunction on media organizations, which, to his information, were in possession of the CD carrying video records of his “certainly not true” extramarital sex. The court was shown that the video in question was a morphed one inasmuch as his driver, who, Singhvi had alleged, was threatening to tarnish his public image for settling a personal grudge as he had refused to enhance his salary, has confessed to have fabricated the video. And, then he has taken steps to keep the driver’s version beyond judicial test of reliability thereof by informing the court of a settlement, arrived at out-of-court with the driver.

But, if the lady who features in the sex video, which, as per Singhvi’s statement was “consensual”, is truly a high profile lawyer of Delhi High Court with practice also in the Supreme Court as claimed, the matter cannot and must not end with the driver’s driven confession in the court or Singhvi’s information to the court of out-of-the-court settlement with the said driver; because, as innuendoes wallop, the lady was caught in the act of bartering the pleasure with Singhvi for help in elevation to the bench from the bar, as he, heading both the Standing Committee of Parliament on Personnel, Law and Justice as well as the Law and Justice Department of the Congress party that rules India through Sonia Gandhi as UPA Chairperson and Manmohan Singh as the Prime Minister, was in the position to help her fulfill her ambition.

The court injunction has failed to obstruct circulation of the video and / or the news.

As people are increasingly being conscious of how heinous crimes in India are not being readily remedied because of availability of judicial cold-storage facilities to crime-based litigations in form of stay and injunctions, they have used social media to see and discuss the video.

Going by the number of hits the video has obtained in course of its circulation in social and online medias, several lakhs of viewers have already watched it.

Presumably, all the people connected with Singhvi – in the circle of his relations, in his profession, in his party and in the Parliament – have seen the video.

Social media being internet media, I have been trying all these days to find out if any of them comes out in the internet with reason to report that the male satyr displayed in the sex video is not Singhvi. But, I have not seen any. This makes me inclined to assume that almost all that know Singhvi personally, are believing that he is the male satyr in action in the sex video.

When thus the assumption tilts towards Singhvi, the lady in the nasty act is also named by people who know her. Surprisingly she stays conspicuous by her silence. On the other hand, suspecting that she was partnering with Singhvi with an eye on an superior judiciary position, one Sarbajit Roy, residing at B-59 Defense Colony, New Delhi 110024, has already made an application under RTI to the Central Public Information Officer, Supreme Court of India, to locate if she has any mention anywhere in relevant records that can justify the suspicion.

Singhvi resigning from the Parliamentary Standing Committee sans any disapproval thereof by the Congress party that had given him that position and getting dropped from party positions such as the party chief in its department of law and justice and party spokesmanship, has given the public clear indication that his close colleagues in the Congress do not accept his claim that the “contents of the CD” are “certainly not” true.

In the circumstances, it is essential for Singhvi to come out of the cocoon of out-of-court settlement that he has weaved with his driver projected as the manufacturer of the video and convince the country that he does not know the lady in the said video and in reality the male satyr therein is not he.

The matter getting murkier everyday with serious implications for body politic as well as for judiciary, it is essential for the Court to elicit from the driver the details of how he morphed Singhvi into the sexual act and to test his version on the matrix of science in different labs including foreign labs within its discretion and under secrecy to be disclosed along with the final verdict.

Appropriate examination of the video can also determine if it is morphed or genuine.

These are urgent and unavoidably essential necessities.

Pending this essential, it is urgent for the Congress to ask Singhvi to resign from the Rajyasabha or else, for the parliament to refer him to a competent court to know if he is not of “unsound mind”.

Satyriasis as viewable in the video is a mental disorder and the shenanigans so far observed are indicative of abnormal developments. Both the phenomena may be interpreted as effects of unsound mind.

The Constitution of India under Article 102 (1) (b) has stipulated that “a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament – if he is of unsound mind and stands so declared by a competent court”.

The development, when the person is already a member, protected under parliamentary privileges, makes it necessary for the Parliament to test whether or not the person is of “unsound mind”, so that, democracy, of which the Parliament is the protector, does not go haywire.

Pending this determination, Singhvi should be made to quit the Parliament till at least it is proved that the male satyr in the sex video is not he.

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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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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.

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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.

Filed under: administration, elections 2009, judiciary, Uncategorized | Tagged: , , , , , | Leave a Comment »

Qualifications of Justice Gopalagowda: Some Questions

Posted on June 1, 2011 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

It is sad that the public is being fed with ingredients to bother about qualifications of the Chief Justice of Orissa High Court Sri V. Gopalagowda after a national daily – The Hindu – raised the issue quoting an information seeker (IS)under Right To Information (RTI) Act that he could not get the details of the judge’s qualification in any of the relevant offices.

The IS reportedly wanted from the Central Public Information Officer of the Supreme Court of India, the details of “professional qualifications” of Justice Goplalagowda. As the CPIO could not locate the information sought for in the Supreme Court, he forwarded the application to the union ministry of law which also found that the certificates of “academic and professional qualifications” of the judge were not in its records. The law ministry forwarded the application to the Karnataka High Court where the picture was also the same. The IS then moved the Karnataka Bar Council where Justice Gopalagowda had enrolled himself as a lawyer, with the hope that, being the registering body, it must be possessing his educational details. To his dismay, these were not in their records too.

After duly registered as a lawyer by the Karnataka Bar Council and practicing in Karnataka High Court since November 1975 and in major areas of labor and employment, Justice Gopalagowda was elevated to the bench of the same HC, first as an additional judge in June 1997 and then as a permanent judge in June 1999. He discharged his duties there with distinction till his posting to Orissa High Court as its Chief Justice, the post he has taken over on March 25, 2010.

Bar Councils, by practice, do not keep the copies of certificates of academic and professional qualifications of any lawyer after enrollment. The certificates are usually returned to the person concerned after verification at the time of registration. On the other hand, as per the majority judgment in Supreme Court Advocates-On-Record Association v.Union of India and Others (1993), “The process of appointment of judges to the Supreme Court and the High Courts is an integrated participatory consultative process for selecting the best and most suitable persons available for appointment”.
As such, once a practicing lawyer is elevated to the bench, neither the High Court to which bench he / she is elevated nor the Supreme Court keeps the appointed judge’s educational certificates in custody. So, searching for such certificates of such a judge in the Supreme Court leading to publicity of their non-availability there may raise questions on the motive behind the search.

Now, the questions are, why the IS has singled out Justice Gopalagowda in the matter of “professional qualification”? On the other hand, if he had any doubt about the judge’s qualifications, why he developed such doubt and why did he not try to clear the same by first contacting Justice Gopalagowda? What does he want to convey by asking for the information and chasing it from Supreme Court to Karnataka Bar Council behind the back of the Judge and then using the Press to spread the news of non-availability of his educational records in such a style? Has he the details of educational qualifications of all the Judges of every High Court and the Supreme Court of India except the only one man: Justice Gopalagowda? If yes, has he obtained the same by using RTI? If not, why has he made this attempt in regard to Justice Gopalagowda alone? And why The Hindu has not asked these questions to him before giving the matter the publicity?

The questions are relevant to know if the right to obtain and to publish information is not being misused under masks of activism. Both the IS and the Press (primarily The Hindu and then the other papers that have followed it) should answer the questions.

If Justice Gopalagowda so desires, he may treat the discriminatory search of the IS behind his back and the connected defaming publicity in The Hindu as instances of contempt against his Court as the entire exercise seems to be aimed at embarrassing him before the litigants and the lawyers in the areas under his jurisdiction. Such a case may help him have the opportunity of placing his qualifications on records too, which otherwise he cannot do, in the given circumstance, to do away with the innuendoes the mischief is emitting.

Filed under: administration, Editorials, judiciary, news, orissa, Uncategorized | Tagged: , , , , , | Leave a Comment »

The Supreme Court Should Have Used Sen’s Case to Save India from Plutocratic Terrorism

Posted on April 29, 2011 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

The Supreme Court Bench comprising Justice H.S.Bedi and Justice K.C.Prasad will be remembered for having granted bail on April 15, 2011 to Dr. Binayak Sen, the legendary victim of Plutocratic terrorism, who was, by Chhatishgarh government, thrown into rigorous life imprisonment under charges of sedition for alleged possession of Maoist literature as well as for harboring and /or helping them.

Dr. Sen has expressed happiness over the Apex Court’s order; but, after being released he has told PTI, “the case against me is still going on and I have to fight it with all the means at my disposal”.

All the patriots framed up by exploitative State under charges of sedition are not attracting global attention and Supreme Court consideration as Dr. Sen could do. They are, as under-trial criminals: majority in jails and a rare few enlarged on bails, perishing for no fault of theirs.

Dr. Sen’s case is an instance of how easy has it become for administration to clamp sedition charges on persons that have humanitarian sympathy for the suffering masses. They are being branded as or sympathizers of the Maoists to face prosecution under charges of sedition.

Orissa is an enormous storehouse of instances of this mischief.

Even the journalists, who are dutifully reporting on the plight of the people, are being charged with sedition. I give below two sample instances:

One: Keertichandra Sahu, reporter of Anupam Bharat, having exposed the Utkal Alumina Plant of the Aditya Birla group over the havoc it plays on the environment as well as the life of innocent and ignorant tribals and workers kept as casual workers sans any service condition, was arrested on 14 February 2004 by the police at Kashipur of Kalahandi under charges of sedition and since then is perishing under the framed up case.

Two: NGOs such as Sajag and Sahabhagi Vikash Abhiyan had shown, unemployment problem along with the condition of starvation and semi-starvation among the Kamar families was growing day by day. This had prompted two freelancing TV reporters of Nuapada District, Puturam Sunani and Meghanad Kharsel to keep a watch on Nangalghat in Sinapalli Block, as it was a hamlet of Kamar caste people. And in course of time, information reached them that under stark starvation the helpless ones in that hamlet were eating limestone, locally known as jhikiri. Initially unable to believe, they reached Nangalghat on 25.5.2007 and found that the starved people were really eating the stones. They took video recording of one Baru Singh Pahadia while eating stone and sent the same to their respective medias including OTV for further action. OTV telecasted the horrifying scene at 7 P.M. of 31 May 2007. Immediately thereafter, bags of rice were put in the houses of the villagers, job-cards pushed into families, a tube-well was dug overnight and both the reporters were arrested under charges of sedition, as, to the authorities, their reports were designed to destabilize the government. Revenue Minister Man Mohan Samal (as then he was) condemned both of the journalists in rudest possible terms while informing the Orissa Legislative Assembly the next day on June 01, 2007 of the “criminal cases” instituted against them. He had not even hesitated to mislead the House with false and manufactured reports on availability of job to Nangalghat villagers and their, including Baru Singh’s, food stability. The mischief was exposed in these pages. And, soon the Center for Environment and Food Security (CEFS) come out with details of “hunger, poverty and deprivation” prevalent in the region and observed, “the scenario looks worse than Sub-Saharan Africa”. Yet, both the TV reporters had to face prosecution under sedition charges for having shown to the society this terrible fact.

When these are instances of journalists framed up to face charges of sedition because of their reporting on plights of the people, there are journalists in Orissa that are charged for sedition simply because their reports went against certain members of the police force. One example:

Orissa’s highest editional Sambad has its man in Laxman Choudhury at Mohana. He has been subjected to charges of sedition simply because he exposed the nexus between the area Inspector of Police and the marijuana mafia. The Inspector contrived a method to teach him a lesson and accordingly clamped a case of sedition against him on concocted allegation that a packet of Maoist leaflets was seized from a private bus conductor who, he claimed, informed him that the packet was meant for Chaudhury. Later the said Inspector was caught redhanded by the Vigilance Police while receiving his share of profit from the marijuana mafia; but despite repeated requests from Media Unity for Freedom of Press, the false case of sedition that the corrupt Inspector had cooked up against him has not yet been withdrawn.

From the records of agreement between the State Government of Orissa and the mediators during the course of negotiation for release of Malkangiri district collector R Vineel Krishna and junior engineer Pabitra Mohan Majhi from Maoist hostage, it transpires that, as many as 600 illiterate tribals are perishing in prisons under sedition charges, because, misusers of power wanted them prosecuted that way for their supposed links with the Maoists.

In Dr. Sen’s case, Mr. Justice Bedi told the lawyer of the prosecuting State that if it was real that some materials on Maoist ideology were found in his possession, that does not make out a case of sedition.

“We are a democratic country. He may be a sympathizer. That does not make him guilty of sedition”, said the Justice.

His judicial wisdom made him ask the state lawyer, “If Mahatma Gandhi’s autobiography is found in somebody’s place, is he a Gandhian? No case of sedition is made out on the basis of materials in possession unless you show that he was actively helping or harboring them [Maoists].”

And, thus, Dr. Sen’s enlargement on bail was shaped.

But here is how justice failed to fully blossom.

While saying that possession of Maoist materials does not make one a Maoist, the Apex Court should simultaneously have determined if Maoism is an act of sedition.

That could have expedited the end of Dr. Sen’s turmoil as well as of the massive number of Indians perishing under charges of sedition, framed up as Maoists or their supporters / helper /harborers. Even the persons in whose support the Maoists raise their voice, are being projected as Maoists like the tribals / forest-dwellers / landless laborers of Orissa – as the 600 persons mentioned supra – and being tried under charges of sedition. It has become easiest for the exploitative state to project any antagonist to economic inequality / exploitation / corruption / maladministration as Maoist and torture him / her under charges of sedition.

If, for judicial decision on right to liberty, the Constitution of India provides the base, it is pertinent to revisit the Constituent Assembly debates, specifically of the concluding session where Dr. Ambedkar, whom we regard as the creator of the Constitution, had to answer to the last debates, before it was adopted.

In reply to the debates on third reading of the draft Constitution, he had said, “ On 26th January 1950, we are going to enter into a life of contradiction. In politics we will have equality and in social and economic rights we will have inequality. In politics we will be recognizing the principle of one man and one vote, one value. In our social and economic rights we shall by reason of our social and economic structure, continue to deny one man one value…We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up”. (Constituent Assembly Debates, Vol.XI, p.979).

Are these words of Dr. Ambedkar’s anxiety and warning capable of being interpreted as expression of sedition? If not, no amount of antagonism expressed against economic and social inequality, even if the antagonists project themselves as Maoists, can be termed as sedition.

And, what is Maoism? It is a political ism opposed to capitalism.

The country can run on only two political economies. It is either political economy of capitalism or political economy of socialism. Prime Minister Man Mohan Singh stands for the former and the Maoists for the later.

Mixed economy propounded and practiced by Nehru has been experienced as a path-paver for peaceful transformation of democracy to plutocracy and a silent killer of socialism in support of capitalism. So, either capitalism or socialism is relevant.

When India, running under capitalism, is experiencing all out corruption in every sphere of administration, has become a land of starvation deaths, has become a land of farmers’ suicide, a land of distress sale of babies by starving mothers, a land of distress sale of paddies by loan-ravaged farmers, a land of unemployment for the unprivileged, a land of inequality in scope of education, a land of inequality in availing healthcare, a land of turmoil for the majority of citizens, a land of parliamentary manipulation, land of cash-for-question parliament, a land of cash-for-confidence vote, a land of nonchalant bureaucracy, a land of no-land-to-landless, a land of displacement of tillers for benefit of private trade operators, a land of religious revivalism and acrimonious communalism, a land of commission agents’ supremacism, a land of State-terror and all sorts of mass-harassing methods and lastly has become a grazing ground of profit-seeking foreigners that have started dictating terms, the people who want India extricated from this mess, will certainly oppose capitalism and hence they will want the country to change its course to political economy of socialism, which also is enshrined in its constitution as its resolve.

Maoism is a sort of expression of determination to lead the country to socialism.

It encourages oppressed people to revolt against the capitalist state so that India can extricate herself from the labyrinth of social and economic inequalities, which, unless done, would, as Dr. Ambedkar apprehended, “blow up the structure of political democracy” that the Constituent Assembly had “so laboriously built up”. (cited supra).

Revolt against a capitalist (exploitative) State is not revolt against the State that the people of India in their Constitution had resolved to have.

Hence Maoism cannot be same as sedition.

The Supreme Court should have appreciated this in putting a complete look into Dr. Sen’s case and saved the country of innumerable litigations over wrong interpretation of Maoism as manner of sedition by the crafty perpetrators of plutocratic terrorism and thereby could have saved the people from perishing under charges of sedition without having ever acted seditious.

But as nice hopes cannot die, one hopes, a day will come, when a Bench of the Supreme Court to come, will cogitate upon this issue and settle the matter for ever.

Filed under: actionscript, administration, Animadversion, Editorials, judiciary, law and order, news, politics, Uncategorized | Tagged: , , , , , , | Leave a Comment »

Democracy Needs Supreme Court To Create Separate Election Benches

Posted on January 6, 2011 by Subhas Chandra Pattanayak

Subhas Chandra Pattanayak

Speedy disposal of election cases is essential for survival of democracy. But this is not happening.

We cannot find fault with the Supreme Court for delay in disposal of election cases; because these are not the only cases that the judges are handling and, we know, the judges are handling more cases than what is humanly possible.

Therefore it is urgent to develop a dedicated judicial mechanism to handle the election cases exclusively. That democracy is certainly in danger as election cases are not being finally disposed off quickly, needs no elaboration.

Democracy’s predicament in the Athgarh Assembly constituency, discussed several times in these pages, may be cited for a ready reference.

Ranendra Pratap Swain of BJD was seeking reelection from this constituency and had filed the necessary papers including the party ticket, on receipt of which, the Returning Officer (RO) – the sub-collector of Athgarh – had issued due acknowledgement.

Swain was given the ticket; because BJD had resolved to set all of its sitting MLAs as candidates. But in reality the BJD boss Navin Patnaik was not happy with Swain as he had, on many occasions during debates in the House, criticized anti-people policies of his government like the country liquor policy and besides having criticized the allocation of land to Vedanta, he was often marked for scathing attack on the ongoing misrule in many departments.

So at the last moment, one Ramesh Raut, an uneducated follower that was working as a pageboy in the BJD office at Athgarh, was picked up to file nomination papers behind the back of Swain as well as the Athgarh Unit of BJD as an independent candidate.

His proposers and seconders picked up again behind back of the Athgarh unit, were nonetheless known BJD workers of the locality. Though it was a blatantly anti-party act, neither any of them nor Raut was subjected to any disciplinary action by the party, which makes it clear that the BJD boss had knowingly and mischievously planted him as an independent candidate with a mala fide motive. And, he being the Chief Minister, the sub-collector – a lower level officer – misused his position as the RO to cancel Swain’s candidature in an unprecedented manner.

The reason he showed was that the party ticket submitted by Swain was not the original ticket, but a xerox copy thereof.

As per his own acknowledgement, he had personally received the original party ticket and that was in his safe custody.

If on the subsequent day of screening it was found to be a xerox copy, obviously the original was replaced with a xerox copy by the RO himself. It was he, who suo motu raised the objection over the xerox copy and rejected Swain’s papers.

The illegality was challenged in Election Petition No.4 of 2009, in deciding which, on 23.6.2010, the Orissa High Court has “held that the Returning Officer improperly rejected the nomination of Sri Ranendra Pratap Swain” and has “declared that the election of the respondent No.1 (Ramesh Raut) is null and void and that casual vacancy is created relating to 89-Athgarh Assembly Constituency thereby”.

This verdict of the High Court has been challenged in the Supreme Court in Civil Appeals bearing Nos. 4956/2010 and 4962/2010. They are yet to be decided.

The people of Athgarh, under such circumstances, are not having proper representation in the Assembly. They are duped inasmuch as on rejection of Swain’s papers, Naveen Patnaik had projected Raut as BJD’s adopted candidate, who would resign, if elected, to facilitate Swain’s reelection. People of Athgarh had voted for Raut on this premise that it was just a stopgap arrangement to facilitate Swain’s reelection after the wrongful election was over.

Therefore, with the delay in disposal of the election case in the Supreme Court, the people of Athgarh are double disadvantaged.

Democracy is clearly in danger as far as Athgarh is concerned.

But the Athgarh case is not the only case awaiting judicial disposal. And, we cannot held judiciary responsible for the delay as the High Courts and the Supreme Court are overloaded with cases of all categories including elections.

Delay in any category of case doesn’t endanger democracy. Only the election cases do.

Hence, we suggest that the Supreme Court should constitute an Election Bench to deal with the election cases alone in the light of Green Benches it has created to handle the environmental disputes. The Green Bench idea had gained priority judicial ground with its direction to the Madras High Court in the Madras Tanneries Case in 1996 and since then the cause of environment has immensely benefited with quicker disposal of hurdles on eco-conservation with other High Courts having similar specific benches and the Apex Court having a second Green Bench in addition to its first such bench.

These Benches are so fruitful that the corporate-loyal central government wanted the Supreme Court to wind up the same as its affidavit seeking vacation of the stay on the functioning of Forest Advisory Committee shows. Now, as the Court refused to wind up green benches, the Union government has coined the National green Tribunal Bill 2009. However, the reality is that the Supreme Court has doubled its Green Bench.

The same method should be adopted to create Election Benches to deal exclusively with the election cases in order to save democracy from damages due to delay in disposal thereof in the Courts overburdened with unlimited general cases.

Such dedicated judicial mechanism would save democracy and hence, the sooner it is evolved the better.

Filed under: administration, Animadversion, Editorials, elections 2009, judiciary, news, politics, Uncategorized | Tagged: , , , , , , | 4 Comments »

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