Subhas Chandra Pattanayak

Against any instance of misrule or illegality in any public office, every citizen is entitled to move the judiciary. But it is not possible for every citizen of India, because everybody is not equipped with the money to proceed and the time to pay that litigation needs. This inadequacy drastically damages democracy. So, to keep democracy on its track, judicial activism had blossomed in India. But when democracy itself is in danger at Athgarh in the District of Cuttack, judicial activism is conspicuous by its absence!

As discussed in these pages on April 7, the Returning Officer has obliterated the scope of principled voting by members and supporters of BJD by rejecting its candidate R.P.Swain’s nomination papers on misconceived interpretation of election laws.

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

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

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

When Swain appealed to the EC against the decision of the RO, the wrong could have been rectified. But sadly and surprisingly, the EC decided not to apply its mind in favor of applied democracy.

This has given birth to a typical stymie on political participation of a section of qualified citizenry in election. The right to vote guaranteed under the Constitution is in jeopardy under an executive order issued by the EC in Athgarh constituency.

In normal circumstances, a Public Interest Litigation (PIL) in greater interest of democracy should have been expected, in view of confused silence of Athgarh voters.

But, it is increasingly felt difficult to file a PIL as Indian Judiciary of late has set a precedence of punishment against public-interest-litigants, when according to its perceptions, the concerned PILs were not of public interest.

The expression “public interest” is not exhaustively defined in any law book or in any case law. So, any judge can have his / her controlling power on interpretation of “public interest”. Before filing a PIL, the litigant can never assume as to who of the judges would be on the bench to hear the PIL and what would be the bench’s interpretation of public-interest in the case. Who then will risk a PIL in the instant matter?

It is, under the circumstances, proper for the Apex Court to take cognizance of the matter and ensure that executive orders of the EC do not supersede the constitutional guarantee for casting votes in support of the official candidate of a party of one’s choice if the candidate is not hit by disqualification clause of the constitution.

Judicial activism in such cases is the only way to save democracy from the EC’s guillotine. But why it is absent? Whither has it gone?

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