Voting in Presidential Poll
Out of bounds for defection law
By Amba Charan Vashishth
On June 28, 2007 Congress sought disqualification from membership of Rajya Sabha of suspended Congress Member, Mr. K. Natwar Singh, on the ground that he had proposed the name of Vice-President, Mr. Bhairon Singh Shekhawat as a candidate for the post of President of India.
Congress had throughout been playing politics with him. It suspended him about a year back but did not expel him from the membership of the Congress Parliamentary (Legislature) Party just to keep a tab on his activities within the House, because even as a suspended member he has to fall in line with the whip issued by the Party. It turned a blind eye to Mr. Natwar Singh releasing, alongwith Mulayam Singh Yadav, the Samajwadi Party’s election manifesto for Uttar Pradesh. He extensively campaigned for Mulayam Party against his own Congress Party.
The Congress plea is not likely to stand the test of law in view of the provisions of the Tenth Schedule (Articles 102(2) and 191(2) of the Constitution of India. In the case of Mr. Natwar Singh, only provision No. 2 in the Tenth Scheduled can be invoked: that “..a member of a House belonging to any political party shall be disqualified for being a member of the House –
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs ….”.
Firstly, proposing the name of Mr. Shekhawat does not amount to “voting in such House contrary to any direction issued by the political party (Congress in this case)”. Even otherwise, till the time he proposed the candidature, no “direction” had been issued by the Congress Party to any member of the House, not to speak of, to Mr. Natwar Singh.
It also needs to be understood that MPs and MLAs are just voters to the election of the President as they constitute the “electoral college” for the purpose in terms of the provisions of Article 54 of the Constitution. Exercising their right to vote for the office of the President does not constitute “voting in such House” as it is through a secret ballot.
The voting takes place not in the Parliament in a meeting presided over by the Speaker of Lok Sabha or by Chairman of Rajya Sabha or respective Speakers of State legislatures. It is the Election Commission -- and not the Speaker or the Chairman -- who appoints the Presiding Officer for election to the post of President. It is, again, not the Speaker or the Chairman, who declare the outcome of the voting and the final result. This is done by the Presiding Officer who is, normally and as a matter of precedent and convenience, the Secretary-General of the Lok Sabha or Rajya Sabha.
Since the electorate consists of MPs and MLAs, it is but natural that the polling booth too should be within the Lok Sabha and Vidhan Sabha premises. As the Presiding and Assistant Presiding Officers are all officers of the Parliament or Vidhan Sabha, there is no difficulty in identification of the voters also.
Therefore, not to speak of the act of Mr. Natwar Singh proposing the name of Mr. Shekhawat, even taking part in voting for election to the office of President cannot, in any manner, be construed as “voting in such House”. To attract disqualification in terms of the provisions in the Tenth Schedule, the “voting in such House” has to be “voting in” Lok Sabha. Rajya Sabha when the Central and State legislatures are having a sitting of their respective houses presided over by the respecting presiding officer.
At the same time one needs to distinguish between the election of President and that of the Speaker or Deputy Speaker of the House. The former is not elected in a sitting of any House, the latter is elected in a sitting of that particular House. In the latter case, the provisions of Defection Law do get attracted.
Any “direction” issued by any political party for voting for a particular candidate in election to the office of President cannot, therefore, attract the provisions of the Tenth Schedule.
Friday, June 29, 2007
Sunday, June 17, 2007
UPA has now patent on 'innocence'!
UPA has no patent on 'innocence'!
By Amba Charan Vashishth
A very important news failed to get the media attention it deserved: When UPA government celebrated its three years in office over an official dinner in the third week of May 2007 in which the elite high dignitaries exclusively invited, among others, included UPA’s former ‘honourable’ minister and JMM chief Shiboo Soren presently in jail for over seven months undergoing a life sentence for the crime of murder.
The invitation may be correct politically, but cannot be right morally, legally and constitutionally.
How could a convict find his name in the honours list of invitees to an elite official dinner? It is beside the point that he could not have joined this noble gathering without the jail authorities being permitted by a competent court of law. And an invitation to dinner by the head of government in the country, in the eyes of law, could be no justification for grant of a parole, in public interest, to a convict. It is also a fact that no permission was sought even. The dinner passed off without the glitter of Soren's presence.
Affront to Constitution
The invitation to an official dinner to a convict by a government constituted as per provisions of the Constitution is an affront to the word and spirit of law as also against the oath the Prime Minister and his colleagues had taken at the time of being sworn to office: “to do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will”.
The former minister and MP Shibboo Soren and the convict Shibboo Soren are not two different identities; both are one and the same individuals in body and soul. Even if motivated by considerations of political expediency, the solicitation extends an honour to a person convicted of a heinous crime.
On assuming office the UPA invented a new alibi to save itself of the embarrassment and also its government -- the alibi that every person is 'innocent' till convicted by a court of law. This it did because without propagating this high principle, it could initially neither garner majority to form a government nor could the government subsist for a moment
Shibboo Soren stands condemned for the crime of a murder. If UPA wishes to stretch the argument that he continues to be 'innocent' as the highest court of the country, the Supreme Court (his case is as yet pending in Delhi High Court), has not as yet given the final word, it could be accused of being illogical just to stick to power. Despite the glare of reality, UPA continues tosee this reality as accepting Soren as a convict as per court verdict has disastrous political ramifications for its life in power.
Harshad Mehta 'innocent'?
Surprisingly, UPA invokes this 'innocent' doctrine only when it serves its political purpose. Not otherwise. In numerous cases has it demanded resignation – or dismissal -- of chief ministers and ministers of non-UPA governments and politicians even where no criminal case had been registered against them, not to speak of their having been charge-sheeted or convicted, like Shibboo Soren and many others in UPA, for any crime by any court of law.
Congress hasn't have got, as yet, this alibi of 'innocence' patented in its name that no one else can use it. Tomorrow late Harshad Mehta's family can, with the equal vehemence of moral force, also claim that he was 'innocent' because although convicted by a lower court, the Supreme Court had not said the final word in his case because his appeals against conviction were pending consideration in courts at the time of his death.
By Amba Charan Vashishth
A very important news failed to get the media attention it deserved: When UPA government celebrated its three years in office over an official dinner in the third week of May 2007 in which the elite high dignitaries exclusively invited, among others, included UPA’s former ‘honourable’ minister and JMM chief Shiboo Soren presently in jail for over seven months undergoing a life sentence for the crime of murder.
The invitation may be correct politically, but cannot be right morally, legally and constitutionally.
How could a convict find his name in the honours list of invitees to an elite official dinner? It is beside the point that he could not have joined this noble gathering without the jail authorities being permitted by a competent court of law. And an invitation to dinner by the head of government in the country, in the eyes of law, could be no justification for grant of a parole, in public interest, to a convict. It is also a fact that no permission was sought even. The dinner passed off without the glitter of Soren's presence.
Affront to Constitution
The invitation to an official dinner to a convict by a government constituted as per provisions of the Constitution is an affront to the word and spirit of law as also against the oath the Prime Minister and his colleagues had taken at the time of being sworn to office: “to do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will”.
The former minister and MP Shibboo Soren and the convict Shibboo Soren are not two different identities; both are one and the same individuals in body and soul. Even if motivated by considerations of political expediency, the solicitation extends an honour to a person convicted of a heinous crime.
On assuming office the UPA invented a new alibi to save itself of the embarrassment and also its government -- the alibi that every person is 'innocent' till convicted by a court of law. This it did because without propagating this high principle, it could initially neither garner majority to form a government nor could the government subsist for a moment
Shibboo Soren stands condemned for the crime of a murder. If UPA wishes to stretch the argument that he continues to be 'innocent' as the highest court of the country, the Supreme Court (his case is as yet pending in Delhi High Court), has not as yet given the final word, it could be accused of being illogical just to stick to power. Despite the glare of reality, UPA continues tosee this reality as accepting Soren as a convict as per court verdict has disastrous political ramifications for its life in power.
Harshad Mehta 'innocent'?
Surprisingly, UPA invokes this 'innocent' doctrine only when it serves its political purpose. Not otherwise. In numerous cases has it demanded resignation – or dismissal -- of chief ministers and ministers of non-UPA governments and politicians even where no criminal case had been registered against them, not to speak of their having been charge-sheeted or convicted, like Shibboo Soren and many others in UPA, for any crime by any court of law.
Congress hasn't have got, as yet, this alibi of 'innocence' patented in its name that no one else can use it. Tomorrow late Harshad Mehta's family can, with the equal vehemence of moral force, also claim that he was 'innocent' because although convicted by a lower court, the Supreme Court had not said the final word in his case because his appeals against conviction were pending consideration in courts at the time of his death.
Thursday, June 14, 2007
New President may bring new life to Afzal
New President may fetch new life to Afzal
By Amba Charan Vashishth
The way the process of selection of candidates for the country's highest office of President of India is moving, it makes amply clear that political expediency will prevail over merit for the august office. The kind of political haggling and the spirit of give-and-take pervading at the moment leaves no one in doubt that interests of individuals, political parties and commitment towards the powers-that-be are overtaking the interests of the nation. Prime minister's office already stands eroded. God save the new President!.
The decision on the mercy petition submitted to the President of India by Parliament attack main accused, Mohammad Afzal Guru, sentenced to death by the Supreme Court of India, seems to have been made to hang fire with a definite plan and design. President, Dr.APJ Abdul Kalam, had forwarded the mercy petition to the Manmohan government whose Home Ministry sent it onwards to the Delhi government, again ruled by the Congress. The Delhi government could find no time to send its comments and recommendations to the Union government for the last over seven-eight months.
Now it looks it is being done according to a well thought-out plan. President Kalam is on record having declared that he will take a decision on the mercy petition as per law of the land. As the things stand, the UPA government is not sure that Dr. Kalam would put his thumb mark on whatever recommendation it makes to him. Therefore, to avoid any political embarrassment it preferred to wait for a few months. In the process, Afzal Guru too has got a breather for life. If his petition were rejected, everybody knows he would have been hanged by this time.
Everybody is aware that it is the discretion of the government in power to take a decision within hours or prolong it for months and years. The mercy petition of the killers of late Prime Minister, Mrs. Indira Gandhi and that of General Vaidya was rejected within hours. It is difficult to say whether the government in power at that time was more efficient and prompt than the present one.
Whatever it is, the fact remains that the delay is being done with a definite political purpose. If the UPA is able to get a pliant individual elected to this august office, as the present course of events indicate, it looks the Parliament attack accused Afzal who was instrumental in the killing of about eight security men who staked their life in saving the life of the nation's top leadership then holed up in the Parliament House, may get reprieve and be saved from going to the gallows.
As the events seem to be unfolding, the UPA government may either get his mercy petition accepted before the Gujarat assembly elections due in October-November 2007 or just before the Parliament elections due in early 2009. In both the events, Afzal Guru and the politicians stand to gain.
By Amba Charan Vashishth
The way the process of selection of candidates for the country's highest office of President of India is moving, it makes amply clear that political expediency will prevail over merit for the august office. The kind of political haggling and the spirit of give-and-take pervading at the moment leaves no one in doubt that interests of individuals, political parties and commitment towards the powers-that-be are overtaking the interests of the nation. Prime minister's office already stands eroded. God save the new President!.
The decision on the mercy petition submitted to the President of India by Parliament attack main accused, Mohammad Afzal Guru, sentenced to death by the Supreme Court of India, seems to have been made to hang fire with a definite plan and design. President, Dr.APJ Abdul Kalam, had forwarded the mercy petition to the Manmohan government whose Home Ministry sent it onwards to the Delhi government, again ruled by the Congress. The Delhi government could find no time to send its comments and recommendations to the Union government for the last over seven-eight months.
Now it looks it is being done according to a well thought-out plan. President Kalam is on record having declared that he will take a decision on the mercy petition as per law of the land. As the things stand, the UPA government is not sure that Dr. Kalam would put his thumb mark on whatever recommendation it makes to him. Therefore, to avoid any political embarrassment it preferred to wait for a few months. In the process, Afzal Guru too has got a breather for life. If his petition were rejected, everybody knows he would have been hanged by this time.
Everybody is aware that it is the discretion of the government in power to take a decision within hours or prolong it for months and years. The mercy petition of the killers of late Prime Minister, Mrs. Indira Gandhi and that of General Vaidya was rejected within hours. It is difficult to say whether the government in power at that time was more efficient and prompt than the present one.
Whatever it is, the fact remains that the delay is being done with a definite political purpose. If the UPA is able to get a pliant individual elected to this august office, as the present course of events indicate, it looks the Parliament attack accused Afzal who was instrumental in the killing of about eight security men who staked their life in saving the life of the nation's top leadership then holed up in the Parliament House, may get reprieve and be saved from going to the gallows.
As the events seem to be unfolding, the UPA government may either get his mercy petition accepted before the Gujarat assembly elections due in October-November 2007 or just before the Parliament elections due in early 2009. In both the events, Afzal Guru and the politicians stand to gain.
Sunday, June 10, 2007
A Challenge to Arundhatis, MF Hussains, Nanditas
A Challenge to Arundhatis, Nandita, MF Hussain, and Chandermohans
By Amba Charan Vashishth
On May 25, according to press reports, Police had to use tear gas to disperse an angry crowd that had collected at Gandhinagar over posters with nude sketches depicting two nudes in front of the Kaba in Mecca that were posted on the walls of the MS University in Vadodara night before. Muslims in Muslim-dominated localities in the city carrying photographs of Osama Bin Laden took to the streets.
The same reports quotes Prof. JS Bandukwala, President of Peoples’ Union for Civil Liberty, say: “Ten days ago a Senate member of the MSU, Deepak Shah, had openly offered a reward of Rs. one lakh to anyone who could paint Prophet Mohammad in the nude”. He does make a reference to this provocation, but obviously fails to make a distinction between painting Prophet Mohammad in the nude and some nudes standing before the Kaba. It certainly does not amount to the same crime.
But there is another side to the story. Only two weeks back, in the same university a painting student Chandramohan, so far unknown, following the footsteps of the great painter M. F. Hussain, shot into controversy – thereby fame – by painting Lord Jesus Christ and some Hindu goddesses in erotic scenes. There was a great furore and violence erupted. The likes of writer Arundhati Roy, film actress Nandita Dass, many renowned painters, intellectuals, liberals and human rights activists thronged the streets beating their chests for the freedom of expression of Chandramohan, the same way as had this tribe, in the past, jumped into the defence of M. F. Hussain when he painted Bharatmata and some Hindu goddesses in the nude.
Everybody -- Chandramohans, M.F. Hussains included -- has a right to freedom of expression, as does the unknown painter who had taken the liberty to paint some nudes standing before the Kaba.
But where were the likes of Arundhati Roy, Nandita Dass, and other intellectuals, liberals, human rightists and liberals when there were violent demonstrations in India over some cartoons published, not in India, but in Denmark? Why did they not crowd the streets in favour of the Danish cartoonist and against those who were there violating his freedom of expression? They have, as yet, not opened their mouth and come into action in support of this unknown painter’s freedom.
Surprisingly, the people in the PUCL, who are now taking cudgels against the MSU Senate member Deepak Shah, had preferred to keep mum when a UP Minister had announced a reward of Rs. ten crores for the head of the Danish cartoonist? Not to speak of taking any legal action against him, he was not even removed from the ministry. Is the concept of freedom of expression not a conviction with them, but only a subjective and selective principle? Do they support freedom of expression of Hussain, Chandramohan but not that that of Danish cartoonist or the unknown painter who has surfaced now at Vadodara ?
Where was this tribe of liberals and human rightists when journalist Alok Tomar was hauled up and imprisoned for publishing the Danish cartoons in his weekly? Did Tomar not have the freedom of expression as have the elites, like MF Hussain and Chandramohan? If he had, why did they go dumb and blind over the treatment meted out to Tomar?
M. F. Hussain did avail himself of the freedom of expression to paint in the nude the deities of a religion not his own. He owes an explanation why did he not first look into his own religion and follow the principle: charity begins at home (his own religion). He dared not, because he knows very well that his life would have then turned a hell for him at the hands of his own fellow religionists.
Lord Jesus Christ is the father to hundreds of billions of people all over the world. So is Prophet Mohammad. Similarly, Hindu goddesses are mothers to hundreds of crores of people in India and the world over. I don't know -- I am may be an ignoramus -- if any great painter in the world has ever painted in the nude his own wife or his own mother. I am open to be corrected. M.F. Hussain needs to tell the world why did he not try? Had Hussain done it, he would have known how it hurts. We are reminded of the common saying that only the wearer knows where the shoe pinches.
The likes of Hussain seem to be following the common practice. Everybody likes to cast an amorous eye on other's wife, sister or mother. But when somebody does so with their wife, mother or sister, it hurts them. It could end up in a crime, even murder.
It is very easy to be liberal and preach tolerance when somebody else’s sentiments are hurt. But it is not always so if someone’s own feelings get injured. It is an open challenge to the likes of Arundhati Roys, M. F. Hussains, Chandramohans, Nandita Dasses: Let Chandramohans and Hussains paint their own wives, mothers and sisters in the nude and display in public. Let Arundhatis, Nanditas declare in public that they will respect the freedom of expression of a painter who paints them or their mothers in the nude in the same way as they have done in the case of Hussain and Chandramohan. If they fail to declare so publicly, they will stand exposed as hypocrites and humbugs preaching others what they don’t practice themselves. ***
By Amba Charan Vashishth
On May 25, according to press reports, Police had to use tear gas to disperse an angry crowd that had collected at Gandhinagar over posters with nude sketches depicting two nudes in front of the Kaba in Mecca that were posted on the walls of the MS University in Vadodara night before. Muslims in Muslim-dominated localities in the city carrying photographs of Osama Bin Laden took to the streets.
The same reports quotes Prof. JS Bandukwala, President of Peoples’ Union for Civil Liberty, say: “Ten days ago a Senate member of the MSU, Deepak Shah, had openly offered a reward of Rs. one lakh to anyone who could paint Prophet Mohammad in the nude”. He does make a reference to this provocation, but obviously fails to make a distinction between painting Prophet Mohammad in the nude and some nudes standing before the Kaba. It certainly does not amount to the same crime.
But there is another side to the story. Only two weeks back, in the same university a painting student Chandramohan, so far unknown, following the footsteps of the great painter M. F. Hussain, shot into controversy – thereby fame – by painting Lord Jesus Christ and some Hindu goddesses in erotic scenes. There was a great furore and violence erupted. The likes of writer Arundhati Roy, film actress Nandita Dass, many renowned painters, intellectuals, liberals and human rights activists thronged the streets beating their chests for the freedom of expression of Chandramohan, the same way as had this tribe, in the past, jumped into the defence of M. F. Hussain when he painted Bharatmata and some Hindu goddesses in the nude.
Everybody -- Chandramohans, M.F. Hussains included -- has a right to freedom of expression, as does the unknown painter who had taken the liberty to paint some nudes standing before the Kaba.
But where were the likes of Arundhati Roy, Nandita Dass, and other intellectuals, liberals, human rightists and liberals when there were violent demonstrations in India over some cartoons published, not in India, but in Denmark? Why did they not crowd the streets in favour of the Danish cartoonist and against those who were there violating his freedom of expression? They have, as yet, not opened their mouth and come into action in support of this unknown painter’s freedom.
Surprisingly, the people in the PUCL, who are now taking cudgels against the MSU Senate member Deepak Shah, had preferred to keep mum when a UP Minister had announced a reward of Rs. ten crores for the head of the Danish cartoonist? Not to speak of taking any legal action against him, he was not even removed from the ministry. Is the concept of freedom of expression not a conviction with them, but only a subjective and selective principle? Do they support freedom of expression of Hussain, Chandramohan but not that that of Danish cartoonist or the unknown painter who has surfaced now at Vadodara ?
Where was this tribe of liberals and human rightists when journalist Alok Tomar was hauled up and imprisoned for publishing the Danish cartoons in his weekly? Did Tomar not have the freedom of expression as have the elites, like MF Hussain and Chandramohan? If he had, why did they go dumb and blind over the treatment meted out to Tomar?
M. F. Hussain did avail himself of the freedom of expression to paint in the nude the deities of a religion not his own. He owes an explanation why did he not first look into his own religion and follow the principle: charity begins at home (his own religion). He dared not, because he knows very well that his life would have then turned a hell for him at the hands of his own fellow religionists.
Lord Jesus Christ is the father to hundreds of billions of people all over the world. So is Prophet Mohammad. Similarly, Hindu goddesses are mothers to hundreds of crores of people in India and the world over. I don't know -- I am may be an ignoramus -- if any great painter in the world has ever painted in the nude his own wife or his own mother. I am open to be corrected. M.F. Hussain needs to tell the world why did he not try? Had Hussain done it, he would have known how it hurts. We are reminded of the common saying that only the wearer knows where the shoe pinches.
The likes of Hussain seem to be following the common practice. Everybody likes to cast an amorous eye on other's wife, sister or mother. But when somebody does so with their wife, mother or sister, it hurts them. It could end up in a crime, even murder.
It is very easy to be liberal and preach tolerance when somebody else’s sentiments are hurt. But it is not always so if someone’s own feelings get injured. It is an open challenge to the likes of Arundhati Roys, M. F. Hussains, Chandramohans, Nandita Dasses: Let Chandramohans and Hussains paint their own wives, mothers and sisters in the nude and display in public. Let Arundhatis, Nanditas declare in public that they will respect the freedom of expression of a painter who paints them or their mothers in the nude in the same way as they have done in the case of Hussain and Chandramohan. If they fail to declare so publicly, they will stand exposed as hypocrites and humbugs preaching others what they don’t practice themselves. ***
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