Athgarh Offers an Opportunity to Save Democracy from Bureaucratic Outrage

Subhas Chandra Pattanayak

Whether nullification of an election when valid voters have exercised their franchise for valid candidates notwithstanding the list of the said candidates being improper, is a point of law that fortunately is going to be answered by the Supreme Court of India in Athgarh context.

But there should be no doubt that Athgarh has offered an opportunity to save democracy from bureaucratic outrage.

Orissa High Court has determined that rejection of nomination papers of Sri Ranendra Pratap Swain by the Returning Officer, Athgarh was illegal. The Election Commission had directed that all political parties, “whether recognized or registered-unrecognized, must send their intimations in regard to the candidates set up by them to the Returning Officers, not later than 3.00 p.m. on the last date for making nominations” (Para 28 of the handbook for Returning Officers).

The RO was required to prepare a consolidated list of nominated candidates “immediately after 3.00 p.m. on the last date for making nominations” wherein in column 5, 6 and 7 he was to mention the name and status of the political party that set up the candidate. (Para 29.1 Ibid)

The Athgarh RO had complied with all these instructions affirming therein that Swain was the candidate of BJD and accordingly had notified the consolidated list.

But the scenario had changed at the time of scrutiny. His nomination was rejected by the RO on the ground that the party intimation in regard to the candidate as received by him was not genuine. The High Court has rejected this plea and declared the election null and void.

The EC had instructed the RO that he should discharge his duty “with complete judicial detachment and in accordance with the highest judicial standards”; but the RO seems to have acted a bureaucrat under orders from above. Otherwise he could not have dared to change the party ticket that was under his custody after, as per his acknowledgment, he had received from BJD within the stipulated time.

So, this is a clear case of outrage of democracy in the hands of a bureaucrat, who because of being the Sub-Collector at Athgarh, had become the RO.

Swain was in hit list

There is reason to suspect that the RO had succumbed to high political pressure to reject Swain’s nomination howsoever arbitrary be that decision.

Swain as a member of the BJD legislative wing had embarrassed Navin Patnaik many a times by staying a strict adherent to his pro-people principles.

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.

Kalandi Behera as Excise Minister had introduced Orissa Excise Bill, 2005. It had provision for new IMFL-On-Shops / Beer Parlors “according to need”(Cl. VIII-b), new IMFL – 0ff-Shops (Cl.XVI) and new Beer Parlors (CL.VII-h) “wherever conditions so demands” even if that location stands adjacent to a school. I had exposed how dangerous it was even to our future generation in these pages on August 28, 2005 under the caption “Orissa is in the worst phase of her life”.

Behera had to quit as his nexus with wine underworld was exposed. Debi Prasad Mishra succeeded him and the Bill was revived. Famous Gandhian Smt. Sarala Devi campaigned against the Bill and it is Ranendra Pratap Swain who circulated her 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. 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. 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. Hence, he was disadvantageous to BJD top brass.

In other words, he was in the BJD autocrat’s hit list.

He was not supposed to get the party ticket as Navin is known to have never tolerated any individual in the party who bears the courage to discourage misrule. But the party had decided to give tickets to all of the sitting MLAs and in the critical juncture when it had to face the effect of dismantling of the coalition with BJP, it was not possible to violate the party decision and to deny Swain the ticket. So he was given the ticket. Then, the RO, who was a mere sub-collector, supposedly subservient to every orders of the CM, was used to keep Swain out of fray at any cost and Ramesh being a free factotum, was picked up secretly and planted as an independent candidate behind back of the party and in due course, adopted.

Most probably, therefore, the Athgarh RO acted as a bureaucrat eager to please the top boss and whosoever, notwithstanding being powerful, was affected by Swain’s siding with the people.

The High Court verdict that the RO was wrong in rejecting Swain’s nomination is distinctly outstanding and perfect. But the RO who strangulated democracy by illegally rejecting the nomination of Swain is yet to be punished for his mischief against democracy. His order was not at all a case of error in judgment. It was deliberate and planned inasmuch as the original party ticket in favor of Swain was in custody of the RO and could not have been changed to a duplicate without the RO having a role in it.

Ready remedy needed

The Athgarh experience strongly suggests that there must be a ready remedy available to the aspirant candidates wronged by the RO.

If strong steps are not taken against bureaucratic bungling of Athgarh type, time may come when a prime ministerial candidate may stay out of fray if a RO is gained over by an enemy agent and rejects his nomination on the same ground on which Swain has been disallowed to contest. So there should be specific provisions for keeping the election in abeyance till the EC interferes and delivers a speaking ruling on legality of the RO’s order in instances similar to that of Swain. If the Athgarh case attracts attention of the Apex Court to this extent, it may be hoped that a case law can emerge to address to this need.

Taking into account of the High Court order that rejection of Swain’s nomination by the RO was not proper, it is sure that the list of candidates notified by the RO at Athgarh, was improper.

As the case rests with the Supreme Court, we have nothing to say in the matter of nullification of the election, except expressing our feelings that with an improper list of candidates the election was not proper.

Therefore, we feel, the Athgarh dispute before the Supreme Court is not a mere election dispute, but is a rare development in the context of which the Apex Court may be pleased to please cogitate if democracy may, by any way, be saved from being outraged by bureaucracy.