ELECTION OF PRESIDENT
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. ***
