Friday, July 6, 2012

ELECTION OF PRESIDENT – A Post-poll legal Battle Appears Imminent

A Post-poll legal Battle Appears Imminent

By Amba Charan Vashishth

The court of the people will make its verdict public through its elected representatives in State assemblies and Parliament on July 19. But that may not be final verdict. The people's court verdict may ultimately be challenged in the courts of law. It may put a question mark on the result itself. An indication to this effect has already been given by the Bharatiya Janata Party (BJP) and Mr. P. A. Sangma, the only opponent of Congress candidate Mr. Pranab Mukherjee.

This ugly situation seems to be developing not on account of the manipulations of his only rival but by the overwhelming overconfidence generated by the numbers that seemed to be favouring the Congress nominee. His poll managers failed to be vigilant to ensure that he did not hold any office of profit the day he filed his nomination papers. Perhaps they erred into believing that the Office of Profit Act 2006 had exempted the office of the Chairman of Indian Statistical Institute (ISI), Kolkata from being so. They seem to have forgotten that exemption provided in this Act applied only to the MPs and MLAs and not to the office of President.

Mr.  P. A. Sangma had urged rejection of the nomination papers of his only rival Mr. Pranab Mukherjee on the ground that the latter continued to hold an 'office of profit' as ISI chairman.  Congress Party was quick to dismiss the contention as "factually incorrect" and claimed that Mr. Mukherjee had resigned this post on June 20 "well before filing the nomination".

Parliamentary Affairs Minister P. K. Bansal who alongwith Home Minister P. Chidambaram argued the case on behalf of Mr. Mukherjee said they told the Returning Officer that Mr. Mukherjee had resigned as ISI Chairman and the same had been forwarded to the President of the Institute. The Returning Officer accepted the argument as also Mr. Mukherjee's papers, they said.

No speaking order

The stage for the constitutional wrangling has been set by the decision of the returning officer for Presidential election V. K. Agnihotri. He did not make public copy of any speaking order issued by him. All that he told reporters was that he ”overruled the objections raised " by Mr. Sangma after "making summary inquiries, as required under the relevant provisions of the presidential and vice-presidential Election Act regarding conduct of scrutiny of nomination papers and after hearing both the parties in both the cases" on July 3,  "as they were untenable and lacked merit."

Article 58(2) of the Constitution provides that a ”person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments". Therefore, as per requirements of law Mr. Mukherjee should not have been holding "any office of profit" at the time of filing his nomination papers.

Acceptance of resignation vital

On the directions of the Election Commission, the Returning Officer has supplied a copy of his order to Mr. Sangma. Although the text has so far not been made public, but BJP has claimed that it is not a "speaking order" and it only mentions the 'fact' of Mr. Mukherjee having resigned. The mandatory requirement is not just his resignation but the fact that he did not hold "any office of profit" on the day and the time he filed his nomination papers. By mere resigning or his resignation having been forwarded to any authority does not imply that he ceases to hold his post. This he does only after his resignation had been accepted.

Merely by resigning one does not cease to hold the office. An individual who resigns as a minister, an MP or MLA does  get relieved of his office not on the time and date he resigned but from the time and date his resignation is accepted by the President or Governor, or Speaker, as the case may be. Therefore, Mr. Mukherjee's resignation does not mean that he ceased to hold his office of profit mere by the fact of his resigning.

The government or Mr. Mukherjee have so far failed to make public a notification to the effect that Mr. Mukherjee's resignation from the office (of profit) of ISI Chairman has been accepted on  a date prior to his filing of nomination papers. The President of the ISI has so far not opened his mouth. Any post-dated notification declaring an ante-dated acceptance of his resignation would only be an after-thought, bad in law and will substantiate Mr. Sangma's charge. This fact has vitiated the very atmosphere of the election process.

Signatures 'forged'?

BJP has even challenged that Mr. Mukherjee's signatures on the resignation are forged. It has released two different signatures. Reacting to the charge, Mr. Mukherjee wondered whether he would himself forge his own signatures.  But this reaction does not clear the cloud of doubt. A minister cannot have two different sets of signatures. Moreover, whenever a minister takes office, his specimen signatures are sent to various agencies. These are the signatures he has to use in all his official communications. No person can afford to have two sets of signatures using one today and the other tomorrow.

The new development has only vitiated the whole election process. It has opened floodgates of suspicion. Anybody going in for an election petition has a strong case. There are numerous instances where elections to parliament and state assemblies have been set aside or in a case of direct election, the loser having been declared the winner because of wrong acceptance or rejection of nomination papers of a candidate.                                                                               ***

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