After concluding on a pessimistic note in my post yesterday my mind wandered to the hope of someone like Subramanium Swamy to pursue the kind of PIL we were exploring, for the maverick that he is and his penchant for litigation but almost always for a good cause notwithstanding the fact that they might be propelled by his political leanings at that point in time.The other gentleman I could think of was Mr. Prashant Bhushan, probably the only exclusive public interest lawyer in the Supreme Court.
I also felt that for an NGO like PUCL to pursue such a PIL would be difficult in view of the expected judicial perception that the Association for Democratic Reforms caseand the consequent amendments to the RPI Act have closed the issue.
Pinning no hopes on such a PIL, the one way that IÂ thought could be employed in emabarassing the UPA (which we must) was getting relevant people toregister a police complaint in the Bank and Murder cases (subject to periods of limitation being examined). If the Maharashtra Police refused to act, one could approach the Magistrate to register the complaint and if he refuses one would have had to go in appeal to the HC. But mind you, any action initiated against her in terms of framing of charges anytime from now cannot entail a disqualification for her. Any such action to play a role in disqualification must have necessarily been initiated 6 months prior to the filing of her nomination.
I said to myself that someone will have to be persistent in the manner in which Teesta Setalvad has gone about in her tirade against Narendra Modi.
My prayers were heard by our fellow INI bloger Yossarin. He has done a stupendous job of digging up stuff which makes me feel we are in for a good fight and we wont have to ask for the Moon if one goes to the Court.
The matter now boils down to this observation of the Court in the Association for Democratic Reforms (ADR) case of 2002 :
(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?
In amending the RPI Act consequent upon the directions in the ADR case, the Govt had diluted this direction of the Court and had further imposed upon candidates a duty to make disclosures only based on the RPI Act/Rules and not based on any judicial dicta. The Court has frowned upon the same in the PUCL case of 2003.
So we can safely proceed on the basis of the requirements of disclosure spelt out in the ADR case.
So from all the hard-work that Yossarin has put in, someone would have to ascertain if ’she’ has charges framed against her or cognizance is taken of the matter. The newspaper reports might not be the best way to do it and in any case it would require a somewhat herculean task.
Thus the easier way out would be to proceed with the PIL with Yossarin’s compilation of news reports and the Court could itself call for the records from the relevant authorities and determine her eligibility. In such an event, even if we find no charges have been framed against her or cognizance taken, the Court might just make something of the reasons behind the same not being the case.
As we wreck our brains over this, it seems the NDA is also considering some course in this direction apart from the Natwar Singh related complaint to the EC.
Yossarin ne kanoon ke haat mazboot kar diye hai !
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Ninad,
Could you throw some light on the immunities enjoyed by the president under Art 361 ? What is the meaning of the “two-months notice” clause in the said article ? I have put together some thoughts here. See end of post http://realitycheck.wordpress.com/2007/06/25/presidential-spin-attempts/
The best course of action, and indeed the most democratic one is the embarassment route.
KK,
If you see my last post, I begin by referring to this Article of the Constitution:
“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.”
Realitycheck,
The import of Art 361(2) has been explained by the SC in the Union Carbide Corporation case (Bhopal Gas Tragedy):
“Article 361(2) of the Constitution confers on the President and the Governors immunity even in respect of their personal acts and enjoins that no criminal proceedings shall be instituted against them during their term of office.”
To elaborate further, this immunity [361(2)]is not linked to the President’s official duties[unlike 361(1)]. This read together with the RPI Act[s.8] would mean that now it is too late to initiate anything against her in terms of a process of criminal justice so as to disqualify her and if we do initiate anything the same will not be allowed to be ‘continued’ during her tenure.
Hence, seeking her disqualification by way of the PIL in the SC is the only way out because any other ploy to embarass the UPA/her would be futile being too late in the day !
[...] Lex (a group of Supreme Court Lawyers) take on the legal issues including the various blanket immuni… [...]
What is the background of Article 361(2)? Is it only historically convenient that “King can do no wrong” or it is for the dignity of the country in the international forum? May I please have some source/reference with the answers that I may get
Thanks for you response!!
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Good work.
Well, there is a clause in the constitution which says,
“Matters relating to, or connected with, the election of a
President or Vice-President.- (1) All doubts and disputes arising out
of or in connection with the election of a President or Vice-President
shall be inquired into and decided by the Supreme Court whose decision
shall be final.”
The link is
http://indiacode.nic.in/coiweb/coifiles/p05.htm#a
Click on #71