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

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.