Oath is co-terminus: Orissa Governor in illegal incumbency

Subhas chandra Pattanayak

assemblyThe budget session of Orissa Assembly commenced on the Valentine’s Day with M. C. Bhandare reading out his customary address as Governor of Orissa.

As he started addressing the House, he faced protests from the Opposition that culminated into a boycott.
The boycott by the Congress party proceeded from its protest against the insipid address of the Governor, as to it, that was nothing but vomit of the State Government’s vapid versions, aimed at reducing the House podium to a medium of its political propaganda.

But the BJP boycott was against misuse of the Assembly by Bhandare who has lost his legitimacy to address the Assembly.

Bhandare is discernibly the most controversial Governor the state has ever had. When he has failed to act as expected of a Governor in times of need of democracy, he has made mockery of the role of Chancellor of Universities to the detriment of education and embarrassment of educationists.

However, by not leaving the Raj Bhawan on completion of his term in August 2012, he has belittled the dignity of the post of Governor.

He has invoked Art.156 (4) of the Constitution of India which is a proviso to Clause 3 of the Article. It allows the Governor to “continue to hold office until his successor enters upon his office”. Bhandari is not entitled to take advantage of this proviso.

From the scheme of this proviso, it is clear that a person may continue in the office of the Governor till his “successor” enters upon his office. This means, when somebody is appointed to become the “successor”, but under certain circumstances he/she is taking time to join, the outgoing person shall continue to hold office during that transit period only. Otherwise, the Governor is to relinquish office at the end of stipulated term of five years, by handing over the charge to the Chief Justice of the State, from whom he/she had taken the oath of office under Art.159.

Both the Articles read together make it unambiguously clear that the Oath of Office a Governor is bound to be administered with at the time joining, is co-terminus with the term of his/her tenure of five years.

It is shocking that Bhandare is continuing as Governor sans a valid oath of office. And, the government of Naveen Patnaik, known for inability to understand the laws and ability to violate the laws, has allowed him to address the Assembly on commencement of its budget session.

Sad, the Legislative Assembly has been used by the State government as a slaughter house of Law relating to the Governor by allowing Bhandare to address it as the Governor when clearly he is in illegal incumbency.

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Nabin Patnaik Regime Has Turned Out To Be Nightmare For Women Of The State, Reminds OGS In A Fresh Memorandum To Governor

In the matter of Pipili gang-rape-cum-murder, the Orissa Gana Samaj (OGS) repeated its demand for investigation by CBI and speedy penal action on all the rapists and their protectors amongst politicians, police and medical officers without loss of time. On its behalf, the following memorandum was submitted today by its delegates to Governor Murali Chandrakant Bhandare.

Respected Rajyapalji,
We feel terribly hurt and disgusted as despite our consistent campaign, appeal and warning Babina Behera’s life could not be saved. This is undoubtedly a defeat for ethics, laws and institutions thriving for democracy in Orissa. Her death has put a big question mark before the trial of the mass rape case since all circumstantial evidences had been destroyed earlier or not taken care of within the necessary time frame either by deliberate neglect or by possible manipulation and maneuvering, thus making a mockery of the process of prosecution. There has been also criminal negligence by doctors in providing most immediate treatment. 

Justice which seemed difficult and looked distorted now seems to be being buried. But still Orissa Gana Samaj thinks all is not gone. If the government of Orissa is serious about punishing the culprits despite their strong links with powerful elements in the ruling BJD it can still do a lot and get justice for the families of the dead sufferers.

As we have all already apprised you in our last appeal in the second week of March 2012, the Orissa Gana Samaj was formed by aggrieved political parties in opposition, agonized intellectuals, activists and political organizations and citizens to get justice for Babina and similar cases across the state concerning helpless women who have been victims of sexual crimes and criminal conspiracies involving politically powerful elements. Because of the campaign of the Orissa Gana Samaj the government did concede to a few demands by dismissing the Inspector -in charge of Pipili police station and by arresting all accused. The agriculture minister was also dropped from the cabinet. But no steps were taken to strengthen the prosecution and to go for a CBI investigation of the Babina rape and attempt to murder case as it involved the rape and death in mysterious circumstances of another girl three years back. If you may kindly recollect, the following concerns and demands were raised in our appeal to you seeking your kind and immediate intervention.

“The Nabin Patnaik regime has turned out to be nightmare for women of the state and this has been abundantly proved in the Pipli gang rape case and all other rape cases reported from across the state. 

A dalit girl who could gather the courage to depose before the court in a rape case of her friend Pravati Behera by powerful local elements with ruling party affiliations three years latter herself becomes a victim of gang rape by the same forces. Not only that, the earlier victim also has mysteriously died giving rise to speculation of a well thought out murder and not suicide as officially stated. The incidence that occurred on November 28, 2011 causing the gang rape and attempt to murder of the dalit girl who was witness to the rape of 2008 was also part a criminal conspiracy. In both cases the complicity of the police and ruling pary MLA and Minister of Agriculture in the crime has been subject of strong suspicion. The way the police handled the whole case in the last three years and the way the state run hospitals behaved recently with a dying victim of rape could no more be kept away from public eyes. The Nabin Patnaik government has no answer and no convincing explanation to offer. Simply ordering a judicial inquiry or suspending a police official will not bring justice to the victims- one who has died and the witness of the dead who is battling for life since November 2011. If one of the accused could be arrested now after so many hue and cries was created, why the culprits were not arrested and tried before-asks any conscientious citizen of the state. 

Without wasting any further time as presumably you are aware of the developments in the Pipli gang rape case we would like to put forth the following demands with the expectation that as head of state in odisha you will kindly intervene at the earliest and put a check on the erosion of hope for justice in Odisha today.

1. All ruling party elements connected with the crime/accused to be having links with the criminals must immediately be arrested and put behind bar under charges of murder, conspiracy, abetment to rape and murder etc. The Doctors who have neglected treatment of Babina at Pipili, Capital Hospital as well as at S.C.B. Medical College Hospital must be prosecuted for negligence of duty amounting to murder.

2. A CBI investigation of the cases of rape and death of Pravati Behera as well as that of Babina Behera must be taken up immediately.

3. The officers in police hierarchy including DG police and home secretary must be sacked and arrested so that it will discourage the cadre/officers from becoming party to the crime/criminal conspiracies at any level.

4. All rape cases/gang rape cases in the state must be reviewed by an independent body and cases closed before judicial verdicts must be reopened.

5. All rape victims must be enabled to lead a normal life and they must be adequately rehabilitated including the Pipli gang rape victim.

6. Those who have died/got killed/committed suicide next of their kith and kin must be financially compensated.”

7. Cases against Gana Samaj ;leaders is a well planned design to throttle the opinion and fundamental rights and freedom of speech , must be dropped. 

Now that Babina has died much to the delight of the culprits and their protectors in the ruling BJD party and government, which apparently they anticipated, the case has taken a new turn. All believers in democracy are eager to know the fate of the case. Had she opened her mouth, truth would have come out. Now since she has been silenced for ever and truth has been made to rest, a CBI investigation can only help in digging out the truth from her grave. It may not be required to reemphasize the fact that Babina’s case is no more a mass rape case. It has become a murder case now. Every murder is done with an intention. The accused may be in judicial custody now but their protectors and their partners in crime are roaming free. They have even gone to the extent of registering a FIR against the members of Odisha Gana Samaj with the single most intention of discouraging us and destroying the case. Therefore, we consider it high time for your good office to intervene and to please initiate action.

Along with other demands submitted earlier we would like to reiterate the following:

1. Ask the Chief Minister to go for a CBI investigation of the rape and murder case of Babina and her friend Pravati. It is because of her courage to get justice for her dead friend Babina paid a price in terms of her dignity and life.

2. Ask the government to book all accused in the rape case under 302 as it has also turned out to be a murder. All police officials and doctors must be immediately booked and tried in this rape and murder case.

3. Babina’s family facing harassment and torture at the instigation of antisocial and ruling party elements in the locality must be rehabilitated honorably elsewhere with protection.

4. All laws protecting women and their dignity must be implemented properly and with provisions of regular and effective monitoring.

With best regards
Yours sincerely
Prasanta Patnaik
And
Rabi Das
Joint Conveners along with the members

Flood Matters : Orissa Governor Echoes The Opinion Of Orissamatters

We were the first to observe that more than the lackluster operation of relief, a Judicial Commission of Inquiry is essential to fix up responsibility for the flood that devastated the State in the month of September.

And we were alone, till, taking the cue, a few days later, the Congress party moved the State Governor with a demand for an Inquiry into the cause of the flood.

Governor M. C. Bhandare called for a report from the Government that he wanted to be based on investigation by an independent committee into whether or not the water mismanagement of Hirakud dam factored the flood.

And the State Government on October 12 refused to constitute any such probe committee under assertions that the State has already a technical team headed by the Engineer-in-Chief (EIC) of water resources department that looks into implementation of the Rule Curve for the reservoir and in its opinion, there was no mismanagement of the Hirakud dam that could have caused the flood.

The answer has failed to satisfy the Governor, who has in the meantime visited various flood-hit areas and gathered victims’ views as to how the flood was avoidable had administration been careful and concerned.

To media, the Governor has given vent to his dismay and has stated that the reason of the flood needs be determined through an impartial body of investigation so that steps may be taken to save the State from recurrence of such devastation. “Any fair inquiry by an independent body is very necessary so that we take the necessary preventive measures,” he has stated.

We thank the Governor for his honest observation and maintain that the cause of the flood needs be determined through a Judicial Commission of Inquiry for fixation of responsibility on functionaries whose negligence to and mismanagement of the river system has done the devastative damage to our people that can never be recovered.

As we have said, the culprits need punishment, not leniency.

Orissa Assembly in Anarchy:Governor Should Rise From Slumber

Subhas Chandra Pattanayak

The Orissa Governor should be ashamed of how the Assembly he constitutionally heads and summons has been running in blatant disregard to dignity of democracy when the recognized Opposition that has, on reasons convincingly justified by it, stayed away from the Hall for the ninth consecutive legislative day.

It is a matter of grave concern that demands for grants are being adopted without being tested on the matrix of Opposition by the Bidhan Sabha that the recognized Opposition has alleged to have been transformed into a BJD Sabha.

Shame!

According to the Article 203 under Clause (1) of the Constitution of India, “Estimates as relates to expenditure charged upon the Consolidated Fund of the State shall not be submitted to the vote of the Legislative Assembly”; but Clause (2) thereof stipulates that other expenditures in the form of demands for grant shall have to be.

And under clause (3) “No demand for grant shall be made except on the recommendation of the Governor”.

This makes it unambiguously clear that the Governor must ensure that the Assembly he summons must take a “vote” on the demands for grants he recommends, on which, its decision “to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein” shall depend.

In other words no demand for grants can be assented to by the assembly without “submitting” the same to “vote” in the Assembly.

The Assembly has two sides: the Treasury side and the Opposition side. The treasury side cannot say no to the demands for grants. Hence, voting in this regard means expression of approval or disapproval or amendment by the Opposition.

Therefore the Assembly has no right to give assent to any demand for grants in declared absence by the Opposition.

The “vote” so far said to have been taken in matters of the demands for grant is nothing but a farce of “voting” that the Speaker has under misconception authenticated. The government is killing the spirit of democracy taking advantage of the constitutional lacuna of absence of power with the people to withdraw their representatives.

Democracy would be in total peril if the Government, as per its hints, proceeds to adopt the Appropriation Bill after demands for grants are thus illegally adopted in absence of the recognized Opposition.

Vote is a must in matters of Financial Bills. The word ‘Vote’ does not mean expression of approval by members of the treasury benches, because their side is the proposer of the Bills and besides this, all of them act under the whip of the government. Vote in matter of Financial Bills means juxtaposition of treasury bench proposals with the preference of the opposition and on that matrix, determination the strength of opinion, assent or rejection.

Without participation in vote by the opposition, no demand for grants can be said to have been voted into acceptance and no consolidated fund can be said to have legally been constituted and hence no Appropriation can legally be allowed.

The Governor must not allow himself to keep his eyes and ears closed to such illegalities on his recommendations in the Assembly he summons.

To usher in a changed climate, he should invoke his constitutional powers to address the Assembly in this critical juncture and use his executive powers to solve the issue and prevail upon the CM to spare the State of the embarrassment of running of the rampart of democracy in an obnoxiously farcical autocratic manner, which Orissa has the misfortune to witness all these days.

If he fails, he should appreciate that the time has come for him to call back the Assembly session and to set the gear back to the position of the day when the Opposition started its boycott on records and to ensure that in his name, no Government runs with ministers whom the needle of suspicion so forcefully points to after the coal scam was unveiled by no less an authority than the vigilance wing of the State.

If the CM remains adamant, the Governor must wake up from his slumber and take steps to dissolve the Assembly in order to save it from the ongoing and expanding anarchy.

Governor’s Address Greeted with Opposition Boycott

Even as Orissa Government indulged in self-glorification under the guise of the Governor’s speech, the Leader of Opposition in Orissa Assembly Mr. Bhupinder Singh led his party in boycotting its delivery on March 8, alleging that it would be an insult to democracy to entertain the ‘fake story’ that the corrupt and incompetent Government wants to put on records as genuine through the lips of the constitutional convener of the session.

As the Governor stood to address the opening day of the budget session, Mr. Singh requested him not to read out the speech prepared by the dishonest Government.

Recalling how the Governor himself around a week ago had reprimanded the state administration for blatant failure in utilization of welfare funds granted by the central authorities, Mr Singh wondered if it would be proper for the same Governor to mislead the Assembly with the rosy picture prepared by the perpetrators of misrule.

As the Governor went on reading out the speech, dragging into climax the congress protests, Singh led his team out of the hall registering the boycott.

His colleague Santosh Singh Saluja tore apart the speech-booklet before joining the walk-out.

Orissa Governor Urged Upon By ‘Reporters Without Borders’ To Save Journalist Laxman Choudhury From Cooked Up Cases

Chief Minister Navin Patnaik sitting nonchalant over Orissa scribes’ request to save Sambad’s rural reporter Laxman Choudhury from false cases cooked up by the Police, an international body of reporters, Reporters without Borders, has expressed deep concern over havoc wrecked on Freedom of press in Orissa and has, in a communication addressed to the Governor of the State, urged upon him to rise to the occasion.

We reproduce the communication:

H.E. Murlidhar Chandrakant Bhandare
Governor of Orissa
Raj Bhawan
Bhubaneswar 751 008
Orissa

Paris, 6 November 2009

Subject: Call for Laxman Choudhury’s release

Dear Governor,

Reporters Without Borders, an organisation that defends press freedom worldwide, would like to share with you its deep concern about the fate of reporter Laxman Choudhury of the daily newspaper Sambad, who was arrested on 20 September.

As you probably know, Mr. Choudhury was charged with sedition after being found in possession of Maoist leaflets. He is now waiting to appear before the Orissa high court.

He had received the leaflets like a dozen other journalists. The Maoists send their press releases and leaflets to reporters on a regular basis. They constitute news material and receiving them can under no circumstances be regarded as evidence of Maoist links. For these reasons, we consider that Mr. Choudhury’s arrest by the Gajapati police is arbitrary and unjustifiable, and violates the Indian constitution.

We are afraid he may have been the victim of an act of revenge by local authorities who were alarmed by his revelations. Orissa Chief Minister Naveen Patnaik promised to a delegation of four journalists that he would order an investigation into the allegations that Mr. Choudhury’s arrest was an act of revenge. But since then we have received no information about this investigation or how far it has advanced.

As the Orissa high court has not issued any ruling in this case, we urge you to use your constitutional authority to ensure that the petition is taken up by the court promptly so that Mr. Choudhury can be released.

I thank you in advance for the attention you give to this request.

Respectfully,
Jean-François Julliard
Secretary-General

ORISSA ADMINISTRATION: WHEN THE GOVERNOR IS ATTACKED THE GOVERNMENT KEEPS MUM!

Subhas Chandra Pattanayak

Orissa government is keeping mum when Amarikatha, a daily broadsheet preferred by the administration to spread official advertisements, has alleged that the Governor of the State has succumbed to bribe and bureaucratic design in appointing the Vice-Chancellor of Orissa University of Agriculture and Technology (OUAT), Bhubaneswar for a fresh term in stark disregards to the UGC norms.

The paper has raised serious allegations against the conduct of the VC. According to it, D. P. Roy is not the real name of the VC. He was earlier Sambeta Devi Prasanna Rao, a compartmentally passed matriculate, who had entered into Agriculture course by using an allegedly fake intermediate certificate in science and in BSc (Agiculture), had got 14 F grade markings. It has alleged that for such poor result in the Bachelor level, he was refused admission to Masters in Agriculture in OUAT. While somehow doing his Masters at Kolkata, he changed his name to the present one by virtue of an affidavit. He had joined, the paper has further alleged, as an agriculture supervisor under the government, but could eventually succeed in equating this post with that of an Associate Professor and has cultivated an impression as a scholar by using others’ works through plagiarism. His first term as VC was marked for crores of rupees corruption about which allegations are sent to President Mrs. Prativa Patil, the paper has reported in its top-prioritized front page story on November 3, wherein it has alleged that despite being aware of this, the Governor has reappointed Roy as the second term VC obviously under suspected influence of corruption in oblivion of restriction imposed by UGC on reappointment of one person as VC in any university for two consecutive terms.

These allegations are grave in nature inasmuch as a VC of an University has been projected as a miscreant and more seriously, the Governor of the State, whom people have been showing love and respect, has been dragged into a controversial condition.

But astonishingly the VC as well as the State Government have kept mum over the report.