The law concerning the election of the President is mainly contained in the THE PRESIDENTIAL AND VICE-PRESIDENTIAL ELECTION ACT 1952 .This Act though only provides for Election Petitions which can be filed only after declaration of the results, by either a contesting candidate or by 20 or more ‘electors’ which would have to be either MPs or MLAs.
The frustrations vented out at INI made me consider of a scenario where a few citizens could challenge her nomination at the present stage. For that a PIL could be filed only in the Supreme Court by virtue of Art.71 of the Constitution which states that all disputes connected with the election of the President can be entertained only by the SC.
The only plausible ground of attack that I could think of was that her nomination should be rejected because she does not fulfill the qualifications under the Constitution. Art 58 which spells out the qualifications states that among other things one should be eligible to be elected to the Lok Sabha.Thus the REPRESENTATION OF PEOPLE ACT 1951 comes into the picture. Section 8 of this Act which deals with the relevant disqualification provides for a bar only in the event of a ‘conviction’ for certain offences.
Does Mrs. Patil stand convicted by any court for any such offences ? She isn’t I suppose.
So we don’t have an open and shut case here.
Has she been charged with any criminal offence ? Is she facing a trial ? Is there any investigation pending against her either in the Co-op Bank embezzlement case or the Congressman’s murder ?
Can we call her credentials as tainted ? The Supreme Court has shown in the tainted ministers’ case that it is open to addressing cases on a moralistic foreground which are beyond the letter of the law. That case is to be heard at length in August.
So it will take more than an ordinary effort in the court. Affidavits will have to be filed by the Petitioners as to the facts of the Bank and murder cases, perhaps banking on newspaper cuttings including Mr. Shourie’s article - Pratibha Patil, The true story.
We can take heart from the way the Court has dealt with the Association of Democratic Rights case and the tainted ministers’ case .In the Association for Democratic Rights case , the Court went beyond the letter of the law and held as follows :Â
“The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:–
(1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past–if any, whether he is punished with imprisonment or fine?
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof?
(3) The assets (immovable, movable, bank balance etc.) of a candidate and of his/her spouse and that of dependents.
(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.
(5) The educational qualifications of the candidate.”
The relief that one would be seeking will be akin to that in the tainted ministers’ case. One would have to ask the Court to impose further controls on those who can hold these high offices [Esp the President/Vice-President ]by invoking its powers under Art. 142 of the Constitution which are used to supplement the law in the absence of law which is adequate to address a compelling situation.
But that would probably be like asking for the moon especially because we can expect a predictable (and understandable) perception of the judges that the Association of Democratic Reforms case and the consequent amendments to the RPI Act have taken care of most moral issues associated with the election process.
Thus, in the final analysis I have to sadly conclude that in this case kanoon ke haatlambe nahi hai. Many congratulations Mrs. Patil, but please do not expect any respect from us and be rest assured we’re not giving up.
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