Plutocracy_a Specimen is Orissa: Study it and get ready for a revolution

Subhas Chandra Pattanayak

Orissa is reduced to a state of inanition by Naveen Patnaik inasmuch as more than half a crore, at least 5,967,215 persons as per the list of beneficiaries under Public Distribution Scheme, are suffering from continuous slow starvation, who just thrive on subsidized rice at the rate of Re.1 per kg; when as many as 63,759 persons are identified as paupers having not even this abysmally little purchasing power to have rice at Re.1, for which they are given the rice they need free of cost under the Annapurna scheme. “This initiative” confesses the State government “helps to mitigate the maladies of hunger, deprivation and poverty. AAY scheme specifically caters to the need of the poorest of poor people living in urban & rural areas, who face difficulties to buy essential commodities even at a relatively lower price”.

When UNDP puts the figure of poor in Orissa at 15.32 million based on data of 2009-10, a CLAP project finding on “State of Children in Orissa” shows that, the State has the “highest percentage of Infant Deaths and Neo-Natal Deaths among the States of India. The IMR for the State is 83 per 1000 live births. The Neo-Natal Mortality is 61 per 1000 live births. 54.4% born in Orissa are underweight. 20.7% of Children below 3 years of age are severely underweight and another 54.4% are moderately underweight”, attributing this sordid reality to severe malnutrition and continuous slow starvation.

In such a State, against 147 Assembly seats, 217 multimillionaire (crorepati) candidates, have been fielded by non-Communist political parties, who have also fielded 324 declared criminals, most of whom are charged with serious crimes like murder, attempt to murder and rape.

In Naveen babu’s regime, Orissa was blackened through mandate 2009 with 18 MLAs and 3 MPs who could not be punished, as criminal cases against them continued to limp, because prosecution did not dare to pursue those cases in right earnest.

This happens in plutocracy where mafia rules the roost.

In plutocracy corrupt politicians whom people really hate get elected because elections become Hobson’s choice. And in this process they use the administration and machinery of election like the Election Commission in the Center and Chief Electoral Officers in States. This technique is glaringly evident in Orissa.

The ruling party here is named after Biju Patnaik, more a mafia than a democrat. All officially instituted welfare projects are named after the same Biju Patnaik which is a ruling party design to keep the voters too dazzled to differentiate between the Biju Janata Dal and Biju-named projects. As a result, BJD appears as the provider of their welfare, though all the Biju-named projects are created with and funded by the State exchequer.

A fare and non-plutocratic election machinery – the EC, India and CEO, Orissa – should have banned all advertisements in media and mention in electioneering of every official project named after Biju since the very day of commencement of preparation for election, if Orissa voters were to use their unbiased, unprejudiced, uninfluenced, free wisdom in casing their votes.

I had pointed out the malady much earlier on 5 March 2014 and 9 April 2014, but it did not happen.

Over and above this, several instances of heavy cash being carried in vehicles engaged in electioneering of ruling and non-communist parties, as located by stray officials sans any punitive action, indicate to what extent the election is made undemocratic, which proves that, the election which our innocent people believe to be a democratic process of their mandate, has become a plutocratic phenomenon, where they elect their enemies only as their representatives.

These plutocratic politicians do not allow their voters to know even their election manifestos.

bjpAs is well known, the BJP, which is aspiring to capture India by exploiting people’s wrath against Manmohan Singh-Sonia misrule, had not issued its manifesto till closure of electioneering in Orissa for the first phase of election. When it released its manifesto, the total copies thereof were only 1000 when Orissa has a total of 2.88 crore voters.

bjdThe BJD had no more copies of manifesto than what was necessary for release to the Press. It disdainfully disobeyed the election law to print the numbers of the copies of the manifesto which it circulated only to members of the Press at Bhubaneswar. We did not get a copy of BJD manifesto in any of its electioneering camps and none of its slogan-raisers or campaigners candidates could give us a copy either, which establishes that the ruling party of Orissa had no scheme of equipping the people with the election manifesto.

congressThe Congress had limited its manifesto to 10,000 copies as against 2.88 crore voters of Orissa too, when its offshoot Ama Odisha had printed only 500 copies. aop

So, for all these non-Communist parties, planting candidates in all/almost all the Assembly constituencies of Orissa, seeking of mandate on the basis of manifesto carried no meaning. They have made the election a farce and a medium of plutocracy in the guise of democracy, and nothing else.

Read the scenario and find the specimen of plutocracy in Orissa and be ready to fight against whosoever forms the next government with such treachery and foul play, if you really love your motherland and wish it stay a democracy.

A violent class war is inevitable, as from now on, plutocracy will tighten its grip to further imperilment of the poor, perishing under slow starvation and silently suffering the ignominy of thriving on Re.1 per kg rice.

Your post-election responsibility is to try to forestall the violent class war by building up a non-violent revolution to force the government(s) to put a ceiling on private property, so that concentration of wealth in hands of a few shall stop and corruption caused by unlimited avarice of the rich and aspirants for richness would shrink to obliteration and enough funds shall be available for all round development of all Indians.

Get ready.

EC must not act haphazardly: If use of Padma word by Tirkey is bad, why BJD as a contesting party has not been banned?

Subhas Chandra Pattanayak

Election Commission has instructed Dillip Tirkey not to use the “Padma” word in depicting the Padma Shree he has been decorated with, while projecting his suitability as a candidate before the voters of Sundergarh from where he is contesting for the Lok Sabha.

It is a legally correct step and we fully endorse it.

But what about Biju Janata Dal?

The “Biju” word should have been dropped from the said party as it is contesting for both the Lok Sabha and Vidhan Sabha when almost all welfare programs that influences the voters are named after Biju, the father of the present Chief Minister who has contrived this mischief to mislead the voters and bag their votes. Had BJD not dropped the Biju name, it should have been banned, as all most all welfare programs and public places and institutes are named after Biju.

Look at the mischief:

Biju KBK Yojana,

Biju Setu Yojana,

Biju Gajapati Yojana,

Biju Kandhamal Yojana,

Biju Krusak Kalyan Yojana,

Biju Gramya Bidyut Yojana,

Biju Saharanchal Bidyutikaran Yojana,

Biju Yuva Sashaktikaran Yojana,

Biju Gramina Magana Swasthya Sibira Yojana.

These and suchlike welfare programs founded and funded by Orissa Government are mischievously, willfully, calculatedly and intentionally named after Biju Patnaik by his son Naveen Patnaik who has misused his chief minister position to make his party – Biju Janata Dal – be viewed by the voters as synonymous with welfare. This is the worst political misappropriation of the State exchequer, and the most harmful arsenal created to damage electoral wisdom, the like of which is never to be found in India.

On March 5, we had attracted the attention of the EC to this hazardous mischief under the caption: Election Commission now must ban operation of all Orissa Projects named after Biju Patnaik, as projection thereof was bound to mesmerize and mislead the voters.

The EC has not acted responsibly in this case. All these state projects named after Biju are being projected in massive advertisements and election rallies. Voters are unable to differentiate between Biju Janata Dal and Biju named welfare projects.

So, it is clear that in banning use of “Padma” word by Tirkey while not banning welfare projects named after Biju when the party named after him is seeking mandate, the EC has been working haphazardly and against the very spirit of fair election.

Election Commission now must ban operation of all Orissa projects named after Biju Patnaik

Subhas Chandra Pattanayak

The Election Commission has announced today the program for Mandate 2014 with the expected promise to ensure fair election.

It is therefore incumbent upon him to ban the operation of all the official projects named after Biju Patnaik in Orissa, if fair election in this State is to be ensured.

The Election Commission is aware of the fact that the ruling party of Orissa is named after Biju Patnaik. And Biju Janata Dal seeks a fresh mandate. Therefore, operation of official projects in the name of Biju Patnaik is bound to affect fair judgment of the voters.

Operation of projects named after Biju, when Biju Janata Dal is seeking mandate, would be nothing but bribing the voters after the Model Code of Conduct is enforced. This soft thread of election laws is to be understood by the Election Commission, failing which election in Orissa shall be nothing but a farce.

Publicity given to Biju by operation of projects of public interests named after him would attract electors to Biju Janata Dal by imposing Biju on their minds. And, this must not be allowed.

Biju was rejected by the people of Orissa in the last election of his life. But by coming to power taking advantage of the sympathy, which the broadminded people of Orissa had expressed, as he died after their rejection, Naveen Patnaik has infested the entire State with projects named after Biju by sheer misuse of his position as Chief Minister and his party being Biju Janata Dal, gullible voters of the State are led to believe that it is because of Biju and his son, they are benefiting from the welfare programs.

Mark the names of some of these programs: Biju KBK Yojana (a supervening imposition on the central government program), Biju Gramya Jyoti Yojana (Rural Electrification in the name of Biju), Biju Saharanchal Vidyutikaran Yojana (Urban Electrification in the name of Biju) , Biju Yuva Sashaktikaran Yojana (Youth Empowerment program in the name of Biju), Biju Kndhamal Yojana (Kandhamal Development in the name of Biju), Biju Gajapati Yojana (Development in the Gajapati District in the name of Biju) et cetera.

People all over the state are disadvantaged by lack of all weather roads, as in many points the streams and water flows intervene. There is an official Bridge Construction Corporation addressed to redressal of this disadvantage by building up connectivity over the waterbodies. But a new body has been contrived to attract more people to Biju name, styled Biju Setu Yojana,

Many official establishments of massive mass importance are renamed after Biju. Examples are: change of the name of the Bhubaneswar Forest Park to Biju Patnaik Park, Cuttack CDA Park to Biju Patnaik Park, State Police Academy to Biju Patnaik State Police Academy, Homeopathy Medical College, Berhampur to Biju Patnaik Homeopathy Medical College, University of Technology to Biju Patnaik University of Technology, Bhubaneswar Airport to Biju Patnaik Airport and et cetera.

Even an open air jail at Jamujhari has been renamed Biju Patnaik Open-air Ashram!

The anti-cultivator Naveen Patnaik has even used the Administration to name a cultivator welfare program by Biju’s name, such as the Biju Krushak Kalyana Yojana whereupon crores of rupees are being spent on advertisement.

When rural population gets a transportation service, though funds are provided from the State Exchequer, it is named Biju Gaon Gadi Yojana.

All these and the likes are contrived to catch votes by the name of Biju Patnaik when Biju Janata Dal is seeking mandate.

Gullible illiterate voters, who constitute the majority, fail to see the Biju-named projects and programs separately from Biju Janata Dal and thus, despite being a totally anti-people party, BJD bags the votes and continues in power.

It is imperative, therefore, on part of the Election Commission to ban forthwith the operation of Biju-named programs and issuance of any advertisement thereof, in order to ensure a climate where voters shall not be influenced by Biju name when a political party in his name is seeking a fresh mandate.

We earnestly hope, the EC would pay utmost urgent attention to this calling need of democracy.

ATHGARH: RE-ELECTION ON THE ANVIL; YET FUNDAMENTAL ISSUES ARE STILL TO BE ADDRESSED

Subhas Chandra Pattanayak

The wrong the Election Commission of India had done to people of Athgarh by not intervening in illegal rejection of sitting member Ranendra Pratap Swain’s nomination papers by the Returning Officer in 2009 general election to Orissa Assembly has clamped a fresh election on the voters of the constituency, though the RO, for whose foul play the by-election is necessitated, is not yet punished.

Orissa High Court, on hearing of the case preferred by Swain, had declared the election of ruling party factotum Ramesh Raut null-and-void, which meant, Raut was to be unseated since the very day of his election. But, the secret agents of derailment of democracy, who in the ruling party had contrived the method of using the RO to keep Swain away from the Assembly as he was in habit of castigating the government on the floor of the House for misrule in various departments, did not allow the HC order to work and instead invested massive money in challenging the same in the Supreme Court. Ultimately they failed and therefore the by-election is now on the anvil. The EC will formally issue necessary notifications on Feb.22 and the voters will cast their votes on March 18, if no sudden change of scenario intervenes.

But the by-election is not the final solution to the issues at stake. If they are not solved, we shall have no hesitation in saying that the EC of India, the Supreme Court of India as well as the Speaker of Orissa Legislative Assembly are failing in their duties to democracy.

The Election Commission

As we have discussed in these pages, there is serious lacuna in our electoral system that allows any one who can gain over a RO to make anybody including a prime-ministerial candidate debarred from contesting by getting the officer reject his/her nomination papers on the day of finalizing the list of valid candidates, at a time, when he/she shall have no time to correct the defects, if any.

It had happened in Athgarh.

The RO had received Swain’s papers duly filed and kept them in his custody till the day of preparation of the list of valid candidates. At the time of scrutiny – the last act before preparation of the list of valid candidates – he suddenly declared that Swain’s party ticket was not original as required under the law though he had received the document in original and kept the same in his custody. Refusing to pay any heed to Swain, the RO had rejected his nomination, thereby debarring him from contesting the elections. And, the EC had refused to intervene as there was no scope to intervene.

The High Court had found the conduct of the RO erroneous and the Supreme Court also agreed with this as it rejected the appeal against the HC order.

But all these legal exercises were not necessary if the RO had not acted mischievously and arbitrarily and the EC not failed to undo the wrong order of the RO.

Therefore, we had suggested that EC should create an authority to instantly intervene in case of arbitrary rejection of nomination papers by the RO. Unless such an authority is created, an enemy nation, by gaining over a RO, can derail Indian democracy by debarring a possible Prime Minister from contesting. But the EC is failing in this regard. It should immediately create a layer over the RO to intervene and settle cases like that of Swain so as to avoid such electoral dislocations in future.

The Supreme Court

The Supreme Court of India has finally restored derailed democracy to its track at Athgarh by approving what the Orissa high Court had decided. But the fact that pinches is that the legal process of hearing and deciding the case has taken so much time that the people’s right to be represented through the candidate of their choice is going to be materialized only in March 2012, after long three years of the election. The delay could have been avoided to the maximum extent if both the Courts had exclusive benches to dispose of election cases, as nothing in a democracy is more clamant than settlement of election issues.

The Supreme Court has been pleased to form green benches to decide exclusively the environmental cases as expeditiously as possible. Similarly, exclusive benches to hear and decide election cases may be created, as, thereby only, finalization of election cases in utmost speed can be ensured, we had suggested. But election benches are yet to be formed.

The Speaker

On receipt of the Supreme Court verdict that approved Orissa High Court’s order declaring the Athgarh election null and void, the Speaker of Orissa Legislative Assembly has terminated Raut’s membership.

But the termination should have been done with retrospective effect.

With the Supreme Court order confirming the order of the High Court, the election of Raut being null and void, it is to be treated that Raut was not a member of the House for a day. Hence, all the salaries and allowances he has received from the Assembly as a member need be recovered from him. The Speaker has not passed any order to this effect. Non-recovery of money paid to him will mean non-nullification of his membership till termination by the Speaker, which would mean non-acceptance of the High Court order as fortified by the Supreme Court that has set the election null and void, which, in other words would also mean nullification of the orders of the Courts by the Speaker till termination of Raut’s membership. It would be totally illegal and the Speaker should not refuse to look at this point. But, it seems, the Speaker has failed to look at this.

In interest of democracy, these issues need urgent cogitation.

President Should No More Remain Pratibha Patil

Subhas Chandra Pattanayak

Every human being has a name. But every human being is not a President of a Republic. In public life, therefore, the name does not matter. Position matters. After occupying a position, the person is required to act as the position calls for, not according to habits practiced under the name.

When Smt. Pratibha Patil was chosen President of the Republic, we had opined that she should leave behind her loyalty to the Congress Party run by Sonia-Singh combine and act in the manner befitting the dignity of the highest office.

Sadly, she has failed.

Double standard

Her double standard in dealing with cases of flagitious offenses makes a mockery of national faith the founding fathers had bestowed upon the President. If she is delaying for years her decisions on mercy petitions, oblivious of how that frustrates the judicial wisdom even of the Supreme Court, she is seen to have acted with extraordinary promptness to shatter the business of the Parliament so that impeachment proceedings against a judicial black sheep could be stopped.

Her protection to enemies of India

It is not that it is not known that there are enemies of Indian Republic amongst the convicted criminals that have, behind them, the support of foreign countries, when in Sonia-Singh power horizon, eagerness to serve foreign interests is not indiscernible.

Why the President is sleeping over petitions of criminals convicted with death sentences for years and keeping judicial orders inoperative by not disposing them off in the quickest possible time is not being explained to public even though their crime against the country, established through approval of the death sentences by the Supreme Court, calls for immediate execution of the death penalty.

The role of Smt. Patil in this matter is so gravely anti-nation that it is essential to amend the Constitution to ensure that after capital punishment awarded or approved by the Supreme Court, the clemency power should vest in a larger bench of the apex court, not in the President, who supposedly has no expertise in weighing whether or not the final judicial verdict is as per the laws of the land; and who, moreover, is a person nominated by the ruling party on the basis of his/her loyalty to the ruling coterie.

Her susceptibility to wishes of ruling coterie

She is so much susceptible to secret orders from the ruling coterie that she acted super-expeditiously to protect justice Soumitra Sen – a corrupt judge of Kolkata High Court, just when he was going to be removed through impeachment. She made a farce of her powers and position and did not hesitate to frustrate the Parliament. In her eagerness to please the political coterie that helped her occupy the top office, she showed unprecedented promptness in attending to Sen’s requirement to preempt the impeachment. She even did not hesitate to accept Sen’s resignation on a holiday like Sunday despite knowing that Monday was fixed by the Parliament to take up the impeachment motion against the judge. The tainted judge was even given the chance to make corrections in his application for resignation, without rejecting the defective document received originally. It is unthinkable that a President played such tricks on the Parliament. Had she not acted according to secret instructions from the people who run the government and whose nominee she was for the office, the government should have taken steps to impeach her for having rendered the pending business of the house inconsequential. So, it is clear that in derailing the parliament business, she had carried out secret orders of the ruling coterie.

The government led by Dr. Manmohan Singh has the history of succumbing to lobby in specific cases and in preempting the impeachment of justice Sen, his lobby succeeded. No other reason comes to our mind for the President accepting the defective resignation of justice Soumitra Sen, on a Sunday when the Loksabha was in midst of impeaching him on Monday.

Instead of acting as the President of India, sadly, the President has acted the Sonia-Singh loyal Pratibha Patil in this case. That she is more loyal to Sonia-Singh coterie than to India, as observed in her conduct in Sen’s matter, makes it clear that despite being the President, she has remained Pratibha Patil.

We have no reason to think otherwise.

Conduct of Salman Khursid confirms our fear

Justice Sen had faxed his resignation to the President on Thursday. It was known to the Government. It was known to the government that if the President accepts the resignation, the Loksabha will have to abort its motion for impeachment. Being the law minister, Salman Khurshid should have then rushed to the President to apprise her of the illegality of acceptance of the resignation in view of pendency of the motion in the Loksabha. But he did not. After the resignation was notified, on September 6, 2011, in the afternoon, the same Salman Khurshid moved the motion to drop the impeachment in Loksabha, which was declared accepted by the Speaker on the basis of the “sense of the House”.

Patil protects Khurshid

Now the Election Commission of India has found Khurshid guilty of willful contravention of the model code and the President has been moved by the EC to take necessary action against Khurshid.

But the expeditiousness the President displayed in Sen’s case is conspicuous by its absence in the EC case against Khurshid.

She has tried to delay the matter through the Prime Minister. The trick has helped Khurshid to write to the EC to convey his respect to the election authority. If the letter satisfies the EC in matter of its ego, and resultantly it develops a lenient view, what should the President do? Will she then hold that, with the EC being satisfied over the apology tendered by Khurshid, there was no offense in existence?

Be it clear that ego satisfaction of the EC is not the issue. Issue is: willful contravention of election laws by the law minister of the country while electioneering in a State.

Offense against democracy continues

In such an offense against democracy, the minimum action expected of the President, is that, she should instruct the PM to save democracy from being derailed by enemies of democracy like Salman Khurshid.

But, for this, the country needs a President, not a Pratibha Patil.

In Athgarh Context, What was Expected of the Speaker and the Supreme Court?

Subhas Chandra Pattanayak

Athgarh Constituency is not just one of the 147 constituencies of Orissa Assembly.In the context of Indian democracy, it has tremendous significance.

Indian democracy is not as strong we believe. Anybody can gain over a junior officer under threat or by bribe and can debar any sure-winning candidate, even a sitting Prime Minister from contesting the polls by tampering with his nomination papers kept in his custody under election laws. This had happened in Athgarh in 2009 general election. Both the top Courts – The Orissa High Court and the Supreme Court of India – have nullified the election; but the crux of the issue has not been solved. This is why Athgarh deserves specific attention.

In the general elections 2009, its sitting MLA Ranendra Pratap Swain of ruling BJD, seeking fresh mandate, was disallowed to contest by the Returning Officer(RO).

The reason was the RO’s observation that Swain had not submitted ink signed original documents of candidacy and election symbol issued by his party.

Orissa High Court, in deciding the resultant election petition preferred by Swan, held that the rejection of his nomination papers by the RO was blatantly wrong and hence nullified the election with direction for fresh poll in the constituency.

The dispute reached the Supreme Court where the High Court order has been endorsed.

As such the election in Athgarh constituency has been finally and irrevocably nullified.

On receiving the Supreme Court Judgement, the Speaker of Orissa Assembly has terminated the membership of Ramesh Raut, the beneficiary of the RO’s illegal orders and the occasion for India’s Election Commission has arisen to conduct a fresh election there.

But behind this catena of events, significance of Athgarh remains unread on the slates of the two most relevant bodies. They are the Speaker of Orissa Assembly and the Supreme Court of India. I will discuss this

Fault with the Speaker

Orissa’s Assembly Speaker has terminated the membership of Raut after receipt of the Supreme Court verdict. The SC has refused to intervene with the High Court Order and rejected the appeals seeking quashing thereof. This means, the Apex Court verdict has made the High Court order absolute and entirely binding. It would therefore be wrong to do anything that does not comply with the High Court order.

The High Court had nullified the orders of the RO rejecting Swain’s nomination and therefore, had declared the election null and void. This makes it clear that the 2009 election results in respect of Athgarh constituency were struck down and Raut’s existence as the elected representative from that constituency has been legally obliterated with effect from the very day of the election.

In view of this, the Orissa Assembly Speaker had no other way than terminating Raut’s membership with retrospective effect from the day of his oath taking as a member. But the Speaker has not done this. His entire participation in the Assembly stands obliterated with retrospective effect because a legally non-existent person can have no records of participation in the House. Besides, the entire amount of money spent from the exchequer towards his pay and perquisites must be recovered, because for a non-existent member the Assembly cannot spend any money.

The Speaker ought to understand this phenomenon. But the money already paid to Raut may not be recovered from him, as he has received the payments for performances before being unseated.

So, the loss caused to exchequer must be recovered diligently.

Legally looking into the matter, there should be no doubt that no drainage from the exchequer on his accounts is permissible. Hence, the exchequer must be compensated by recovery of the amount spent on Raut from the RO, because of whose wrong decision the money is misspent.

While terminating the membership of Raut, the Speaker should have thought of this and issued a ruling to this effect. But he has not done it.

It was expected of him that he should do it in interest of democracy.

What was expected of the Supreme Court?

In this context, the other august body – the Supreme Court of India – could have created a law to save democracy from the type of danger from dishonest bureaucratic design of the likes seen in Athgarh.

In these pages, when the case was pending before the Supreme Court, we had raised the issue and opined that the Athgarh instance should prompt the Apex Court to issue a mandamus, even though not sought for in the case, making provisions by way of the case law for making publication of final list of candidates legally dependent on time bound disposal of an appeal against the orders of the RO in cases of rejection of nomination papers, as otherwise democracy could be derailed by any mischief maker by gaining over the RO – a junior official – causing even Prime Ministerial candidates debarred from contesting the elections by tampering with nomination papers, as happened in Athgarh, kept in his custody.

It was expected of the Supreme Court to take into accounts the danger of the carte blanche given to a RO to reject any candidate, as the RO did in Athgarh, sans any possibility of immediate intervention by the Election Commission.

It is gainful to recall that Swain, immediately after illegal rejection of his papers, had moved the Orissa High Court for intervention. But the High Court had refused to intervene, as to it, the EC was the competent authority in this matter.

The EC did not buzz, because the powers in the matter of acceptance or rejection of nomination papers were delegated to the RO.

That the RO was blatantly wrong in his decision over Swain’s papers was determined by the same High Court in subsequent days on deciding the election dispute which has, on 9 December 2011, been established with finality by the Supreme Court verdict. But around three long and precious years have been lost for this.

Had a forum to intervene before publication of the final list of candidates by the RO, possibly prejudiced against the candidate, been available, the case that consumed these years of valuable litigant time and debarred the people of Athgarh from having appropriate representation, could have been credibly disposed off on or before 8 April 2009, the last date fixed for withdrawal of candidature there.

So, we were not wrong in expecting such a judicial law or mandate from the Supreme Court for creation of a forum to immediately review the RO’s order in case of rejection of nomination papers in the style Athgarh witnessed, and to save democracy from derailment by mischief makers or the Country’s enemies hand-in-glove with a dishonest or treacherous Returning Officer.

But it did not happen.

To us, the Supreme Court should pay serious attention to this suggestion, if someone staying in or around New Delhi someday files a Public Interest litigation on this issue, as the political government or political opposition in our country, unfortunately, are too self-seeking to foresee this danger to democracy.

Athgarh Offers an Opportunity to Save Democracy from Bureaucratic Outrage

Subhas Chandra Pattanayak

Whether nullification of an election when valid voters have exercised their franchise for valid candidates notwithstanding the list of the said candidates being improper, is a point of law that fortunately is going to be answered by the Supreme Court of India in Athgarh context.

But there should be no doubt that Athgarh has offered an opportunity to save democracy from bureaucratic outrage.

Orissa High Court has determined that rejection of nomination papers of Sri Ranendra Pratap Swain by the Returning Officer, Athgarh was illegal. The Election Commission had directed that all political parties, “whether recognized or registered-unrecognized, must send their intimations in regard to the candidates set up by them to the Returning Officers, not later than 3.00 p.m. on the last date for making nominations” (Para 28 of the handbook for Returning Officers).

The RO was required to prepare a consolidated list of nominated candidates “immediately after 3.00 p.m. on the last date for making nominations” wherein in column 5, 6 and 7 he was to mention the name and status of the political party that set up the candidate. (Para 29.1 Ibid)

The Athgarh RO had complied with all these instructions affirming therein that Swain was the candidate of BJD and accordingly had notified the consolidated list.

But the scenario had changed at the time of scrutiny. His nomination was rejected by the RO on the ground that the party intimation in regard to the candidate as received by him was not genuine. The High Court has rejected this plea and declared the election null and void.

The EC had instructed the RO that he should discharge his duty “with complete judicial detachment and in accordance with the highest judicial standards”; but the RO seems to have acted a bureaucrat under orders from above. Otherwise he could not have dared to change the party ticket that was under his custody after, as per his acknowledgment, he had received from BJD within the stipulated time.

So, this is a clear case of outrage of democracy in the hands of a bureaucrat, who because of being the Sub-Collector at Athgarh, had become the RO.

Swain was in hit list

There is reason to suspect that the RO had succumbed to high political pressure to reject Swain’s nomination howsoever arbitrary be that decision.

Swain as a member of the BJD legislative wing had embarrassed Navin Patnaik many a times by staying a strict adherent to his pro-people principles.

It is he, and only he amongst BJD MLAs, who had vehemently opposed the official proposal to give Anil Agrawal 10,000 Acres of land for Vedant University at Puri.

He was the man who had on records supported the Niyamagiri campaign and demanded that the mines monger be not allowed to tamper with living environment and natural faith epitome of the tribes.

Kalandi Behera as Excise Minister had introduced Orissa Excise Bill, 2005. It had provision for new IMFL-On-Shops / Beer Parlors “according to need”(Cl. VIII-b), new IMFL – 0ff-Shops (Cl.XVI) and new Beer Parlors (CL.VII-h) “wherever conditions so demands” even if that location stands adjacent to a school. I had exposed how dangerous it was even to our future generation in these pages on August 28, 2005 under the caption “Orissa is in the worst phase of her life”.

Behera had to quit as his nexus with wine underworld was exposed. Debi Prasad Mishra succeeded him and the Bill was revived. Famous Gandhian Smt. Sarala Devi campaigned against the Bill and it is Ranendra Pratap Swain who circulated her emotionally charged letter amongst all the members of the House inside the Hall and succeeded in stopping the instant passage of the Bill. It was then sent to a select committee formed with Swain as a member. It was everybody’s impressions that the government was determined to get the Bill get the select committee approval. But Swain, despite being a ruling party frontbencher, stoutly opposed the intent of the Bill and the select committee had to pass it with single note of descent that Swain had expressed. It is Swain again who to the chagrin of the CM had supported the protest of Sambalpur region farmers and general public against allocation of water from Hirakud reservoir to big industries. In the Assembly, every now and then, Swain was seen as the pro-people voice against administration as and when executive steps seemed anti-people. Hence, he was disadvantageous to BJD top brass.

In other words, he was in the BJD autocrat’s hit list.

He was not supposed to get the party ticket as Navin is known to have never tolerated any individual in the party who bears the courage to discourage misrule. But the party had decided to give tickets to all of the sitting MLAs and in the critical juncture when it had to face the effect of dismantling of the coalition with BJP, it was not possible to violate the party decision and to deny Swain the ticket. So he was given the ticket. Then, the RO, who was a mere sub-collector, supposedly subservient to every orders of the CM, was used to keep Swain out of fray at any cost and Ramesh being a free factotum, was picked up secretly and planted as an independent candidate behind back of the party and in due course, adopted.

Most probably, therefore, the Athgarh RO acted as a bureaucrat eager to please the top boss and whosoever, notwithstanding being powerful, was affected by Swain’s siding with the people.

The High Court verdict that the RO was wrong in rejecting Swain’s nomination is distinctly outstanding and perfect. But the RO who strangulated democracy by illegally rejecting the nomination of Swain is yet to be punished for his mischief against democracy. His order was not at all a case of error in judgment. It was deliberate and planned inasmuch as the original party ticket in favor of Swain was in custody of the RO and could not have been changed to a duplicate without the RO having a role in it.

Ready remedy needed

The Athgarh experience strongly suggests that there must be a ready remedy available to the aspirant candidates wronged by the RO.

If strong steps are not taken against bureaucratic bungling of Athgarh type, time may come when a prime ministerial candidate may stay out of fray if a RO is gained over by an enemy agent and rejects his nomination on the same ground on which Swain has been disallowed to contest. So there should be specific provisions for keeping the election in abeyance till the EC interferes and delivers a speaking ruling on legality of the RO’s order in instances similar to that of Swain. If the Athgarh case attracts attention of the Apex Court to this extent, it may be hoped that a case law can emerge to address to this need.

Taking into account of the High Court order that rejection of Swain’s nomination by the RO was not proper, it is sure that the list of candidates notified by the RO at Athgarh, was improper.

As the case rests with the Supreme Court, we have nothing to say in the matter of nullification of the election, except expressing our feelings that with an improper list of candidates the election was not proper.

Therefore, we feel, the Athgarh dispute before the Supreme Court is not a mere election dispute, but is a rare development in the context of which the Apex Court may be pleased to please cogitate if democracy may, by any way, be saved from being outraged by bureaucracy.

JUDICIARY HELPS DEMOCRACY AT ATHGARH, BUT THE ISSUE IS DIFFERENT

Subhas Chandra Pattanayak

In these pages, on April 7, 2009, under the caption “Spirit of democracy is in danger at Athgarh: EC must immediately interfere”, I had noted:

Obliteration of BJD candidate from the election scenario in Athgarh on flimsy / misconceived / misconstrued technical grounds is nothing but denial of voting rights to the voters who should, as members and supporters of BJD, have certainly voted for Sri Swain. This is nothing but a bureaucratic assault on democracy.

I am happy that the Orissa High Court has nullified the rejection of nomination papers of Swain and tried to save democracy from bureaucratic assault.

But the High Court’s verdict also stands on technical defects in the order of the Returning Officer;when the real issue staying away from its purview, has not been judicially tested.

The real issue that is more relevant to democracy revolves round the conduct of the Returning Officer (R.O.) as well as the Election Commission (EC). Had the EC heard Swain in right earnest and corrected the wrong committed by its agent, the R.O., the situation for the case before the High Court should never have developed.

In my article cited supra, I had mentioned;

A section of voters belonging to the Athgarh Assembly Constituency in the District of Cuttack are subjected to a situation where they cannot vote for the candidate of their choice in election 2009. The Returning Officer has virtually preempted their democratic participation by rejecting the nomination papers of BJD candidate Ranendra Pratap Swain on technical ground. But the ground is very flimsy and in fact mischievous enough to render voting right of those citizens inconsequential.

The Returning Officer believes that he is right in rejecting the nomination papers of Sri Swain. He cites election guidelines in support of the action he has taken. The guidelines say that a candidate of a political party shall have to annex the party ticket to the nomination papers. In Swain’s case, at the time of scrutiny on April 6 it was found that only the Xerox copy of his party ticket was annexed, not the original. Hence, his nomination papers were rejected.

This technicality kills the spirit of democracy.

Democracy is a moving political system. It cannot be stymied with misconceived guidelines of the Election Commission or by bureaucratic blunt heads. …………………………………..EC is empowered to conduct the election. He is not empowered to conduct non-election of any candidate by his party members and supporters. In rejecting Ranendra Pratap’s nomination papers the Returning Officer acting on behalf of the EC has tried to play exactly this mischief.

If the R.O was right that the party ticket submitted by Swain was not in original but merely a Xerox copy thereof, I had argued that it was the R.O.’s duty to collect the ticket from BJD or to ascertain the correctness of the Xeroxed ticket placed before him by tallying the issuing authority’s signature with the signature thereon. But the R.O. has failed to do this and instead has created a severe dislocation in peoples’ duty to elect their preferred representative.

In yet another article on April 15, 2009 titled “Election Commission strangulated democracy at Athgarh: whither has gone judicial activism?” I had noted in these pages:

BJD members had proposed Swain’s name as their party candidate for Orissa Assembly from Athgarh in the ensuing election. They had attached the party ticket, which was received by them from the BJD office. The R.O. determined that the party ticket was a Xerox copy, but not the original and consequently, after lapse of two days, rejected it. It was not a proper step. The R.O. should have tried to ascertain from BJD as to whether or not the Swain was its official candidate. The time gap between submission of nomination papers and scrutiny thereof was meat for that. If the EC has not trained the R.O. to use the time gap in this respect, then it is the EC’s fault.

However, if the candidate is not declared disqualified on the basis of constitutional stipulations and if the Party concerned has not disowned the ticket or the candidacy, the nomination papers should never have been turned down under the plea that the party ticket was a Xerox copy, not the original.

Unless an allegation of forgery is specifically raised, the Xerox paper is to be treated as a legal document. It is well settled that fax messages are as genuine as original and administration is running on faxed messages if specimen signature therein tallies with that of the authorized person. Except the mode of transportation, there is no difference between a faxed document and a Xeroxed document. . The R.O. should have studied the signature on the Xeroxed copy of the BJD ticket with that of the specimen of the authorized officer of BJD available with him and should have accepted the same on further verification if thought prudent. But he should never have created a situation for abstention of voters in Athgarh constituency as no law can compel them to vote for anybody who is not their party candidate.

When Swain appealed to the EC against the decision of the RO, the wrong could have been rectified. But sadly and surprisingly, the EC decided not to apply its mind in favor of applied democracy. This has given birth to a typical stymie on political participation of a section of qualified citizenry in election. The right to vote guaranteed under the Constitution is in jeopardy under an executive order issued by the EC in Athgarh constituency.

I still stand by the issue I had raised in these two articles. The crux of the issue is: whether the R.O. had not erred in his duty by not ascertaining from BJD the genuineness or otherwise of the party ticked submitted by Swain.

On the other hand, when the High Court, as reported, has determined that the R.O. was wrong in rejecting the nomination on ground of absence of party ticket in original because receipt of the original ticket was duly acknowledged by the R.O., it is necessary that the same R.O. notwithstanding his present posting must now be prosecuted against for having deliberately acted against democracy in Athgarh context.

Ramesh Raut, whose election to Assembly from Athgarh has been nullified on the ground of nullification of rejection of Swain’s papers has claimed that he cannot be held responsible for defects with the R.O. and therefore, the mandate of the majority of voters of Athgarh in sending him as their representative to the Assembly should not have been nullified by the High Court, may give an opportunity to the Supreme court to review the entire matter. If it happens, it would be proper for the Apex Court to react on the issues raised above by determining the responsibility of the concerned R.O. with matching punishment.

Otherwise, there should be no hesitation in holding that rape of democracy goes unpunished in our country.

C.E.O. IN THE SOUP

Subhas Chandra Pattanayak

Orissa’s Chief Election Officer is in the soup as the parallel supremo of ruling BJD, Pyari Mohan Mohaparta has alleged that she is anti-BJD and she has interfered with posting of officials in order to implement her anti-BJD motive. The BJD has moved the Election Commission to enquire into her activities, he has revealed. On the other hand, the BJP and the Congress suspect that she has been helping the BJD as she has failed to act promptly against the most notorious attempt to hijack votes for BJD through manipulation in Electronic Voting Machine (EVM).

The most notorious booth that the phase 2 elections in Orissa witnessed was booth No.160 at Cuttack’s Nimasahi. It was seen that vote for any candidate of any party was being recorded by the Electronic Voting Machine (EVM) for BJD as the machine was indicating only the BJD symbol.

Confronted with this, the embarrassed polling officials had to stop further voting there even as both the Congress and BJP and all the participants except BJD alleged that the EVM was tampered with to divert other votes to BJD.

Malpractice in polling was rampant.

Confirming this, the Election Commission (EC) has ordered for and executed re-polling in nine booths. They are Booth No.41 (Tigiria) under Athgarh Costituency, 21 (Kolathua) under Mahanga constituency, 23 (Sadangoi) under Pipili constituency, 111 (Asia) under Badachana constituency, 159 (Rampilo) under Sukinda constituency, 26 (Mukundpur) under Dharmasala constituency, 121 (Erancha) under Niali constituency, 213 (Patilo) under Ghasipura constituency and 212 ((Badasarisa) under Bhograi Costituency.

But the EC is surprisingly silent in respect to the booth No.160 of Cuttack’s Nimasahi, where the most notorious malpractice in polling was spotted as mentioned supra.

In a curious turn of event, the EC has called for sort of explanation from the Chief Election Officer (CEO), Orissa, as to why has she not reported rigging in two booths, i.e. Booth No.112 (Bindhyagiri) and Booth No.114 (Gamein) under Nayagarh constituency even though the TV channels have telecasted the rigging live. On investigation the Revenue Divisional Commissioner is convinced that there was rigging not in two but in four of the Booths.

When 22 Booths under Nawarangpur Loksabha constituency are slated for re-polling, suspicion continues to affect the masses in all the areas where voters had to be frustrated because of defective EVMs.

Tampering with EVMs and allied malpractice apart, attempts to capture Booths by BJD goons has shocked the State such as the one exposed in the Talakusuma Booth under Patakura constituency.

Attempts were made to capture this Booth by imported goons led by a BJD member of the outgoing Assembly from Rourkela constituency.

As the genuine voters objected and the local peoples instantly rushed to the rescue of the Booth, the goons fled with the help of the police; but the MLA of BJD could not escape. He was arrested by police and later enlarged. But when Police had admitted him in the SCB Medical College, Cuttack for treatment needed, if any, as he had reported of beating by the people, he had told a major broadsheet that the son of Bedu (BJD candidate Bed Prakash Agrawal) and his associates fled leaving him behind as a result of which he had to suffer physically. His plea was that he had gone into the Booth as a BJD observer.

It was a Pyari Mohapatra induced attempt to capture the Booth, alleges Bijay Mohapatra, BJP’s contesting candidate.

His allegation does not look wild in view of the fact that the BJD’s parallel supremo had preferred to declare publicly prior to the polling that he had ousted Bijoy from BJD and has made a vow to keep him out of legislative power.

Let us for the time being ignore Pyari’s assertions as mere sophomoric braggadocios of a retired government servant who after carrying out orders of political bosses all through his career is just basking in his surprise success in power-politics.

But, the apolitical community has a right to know as to why the CEO has kept mum as yet on this scenario of Booth Capturing?

Why has she not initiated appropriate action against the BJD MLA, who had admittedly entered into the Booth without any authority?

His plea that he had gone there as an observer of BJD cannot be countenanced as no advance intimation within the legal parameter was in public with the details of the said person vesting in him the authority to enter into the Booth and to interfere with the works of the polling staff as he has admitted.

When the BJD MLA has admitted that Bedu’s son and his Associates were involved with the free-for-all inside the Booth in question, why the CEO has not asked the Police as to how could they flee?

Why she is not clarifying as to what had really happened in the Booth, when in view of EC version on records, Video cameras must have captured the pictures live?

Moreover the occurrences in Talakusumi Booth of Patkura matches with the expressed motive of the BJD’s parallel supremo and circumstantial evidences indicate that the BJD had tried to capture the Booth.

So, why the CEO has been sleeping over this evident assault on democracy by the goons of BJD?

The parallel supremo of BJD has tried to create a cover for the CEO by alleging before the Press that she is anti-BJD. The CEO should not be pro-BJD or anti-BJD. She in fact should not be in favor or against any political party.

But Pyari’s allegation against the CEO looks more like a calculated attempt to detract public attention from her negligence to act rapidly in discernible instances of rigging and Booth capturing and from tampering with EVMs that, like the notorious one at Cuttack’s Nimasahi, visibly transformed the votes in favor of any candidate to votes for the BJD.

ELECTION COMMISSION STRANGULATED DEMOCRACY AT ATHGARH: WHITHER HAS GONE JUDICIAL ACTIVISM?

Subhas Chandra Pattanayak

Against any instance of misrule or illegality in any public office, every citizen is entitled to move the judiciary. But it is not possible for every citizen of India, because everybody is not equipped with the money to proceed and the time to pay that litigation needs. This inadequacy drastically damages democracy. So, to keep democracy on its track, judicial activism had blossomed in India. But when democracy itself is in danger at Athgarh in the District of Cuttack, judicial activism is conspicuous by its absence!

As discussed in these pages on April 7, the Returning Officer has obliterated the scope of principled voting by members and supporters of BJD by rejecting its candidate R.P.Swain’s nomination papers on misconceived interpretation of election laws.

BJD members had proposed Swain’s name as their party candidate for Orissa Assembly from Athgarh in the ensuing election. They had attached the party ticket, which was received by them from the BJD office. The R.O. determined that the party ticket was a Xerox copy, but not the original and consequently, after lapse of two days, rejected it. It was not a proper step. The R.O. should have tried to ascertain from BJD as to whether or not the Swain was its official candidate. The time gap between submission of nomination papers and scrutiny thereof was meat for that. If the EC has not trained the R.O. to use the time gap in this respect, then it is the EC’s fault.

However, if the candidate is not declared disqualified on the basis of constitutional stipulations and if the Party concerned has not disowned the ticket or the candidacy, the nomination papers should never have been turned down under the plea that the party ticket was a Xerox copy, not the original.

Unless an allegation of forgery is specifically raised, the Xerox paper is to be treated as a legal document. It is well settled that fax messages are as genuine as original and administration is running on faxed messages if specimen signature therein tallies with that of the authorized person. Except the mode of transportation, there is no difference between a faxed document and a Xeroxed document. . The R.O. should have studied the signature on the Xeroxed copy of the BJD ticket with that of the specimen of the authorized officer of BJD available with him and should have accepted the same on further verification if thought prudent. But he should never have created a situation for abstention of voters in Athgarh constituency as no law can compel them to vote for anybody who is not their party candidate.

When Swain appealed to the EC against the decision of the RO, the wrong could have been rectified. But sadly and surprisingly, the EC decided not to apply its mind in favor of applied democracy.

This has given birth to a typical stymie on political participation of a section of qualified citizenry in election. The right to vote guaranteed under the Constitution is in jeopardy under an executive order issued by the EC in Athgarh constituency.

In normal circumstances, a Public Interest Litigation (PIL) in greater interest of democracy should have been expected, in view of confused silence of Athgarh voters.

But, it is increasingly felt difficult to file a PIL as Indian Judiciary of late has set a precedence of punishment against public-interest-litigants, when according to its perceptions, the concerned PILs were not of public interest.

The expression “public interest” is not exhaustively defined in any law book or in any case law. So, any judge can have his / her controlling power on interpretation of “public interest”. Before filing a PIL, the litigant can never assume as to who of the judges would be on the bench to hear the PIL and what would be the bench’s interpretation of public-interest in the case. Who then will risk a PIL in the instant matter?

It is, under the circumstances, proper for the Apex Court to take cognizance of the matter and ensure that executive orders of the EC do not supersede the constitutional guarantee for casting votes in support of the official candidate of a party of one’s choice if the candidate is not hit by disqualification clause of the constitution.

Judicial activism in such cases is the only way to save democracy from the EC’s guillotine. But why it is absent? Whither has it gone?