PRESIDENT’S POWER TO ADJUDICATE UPON ELECTION PETITION
Why we are discussing this issue? Opening Remarks: In 2024 Lok Sabha general election was held in May. This was the 18th Lok Sabha election. All political parties offered in manifesto many promises. Freebies are offered by almost all political parties. In Delhi the local state government is sworn in thrice based on freebies. Similarly in Karnataka and Telangana the state government is elected based on freebies. The disadvantage of such freebies is the economy of the State is pulled back due to nonproductive expenses. The taxpayers do not get more advance facilities from the tax they have paid. PIL challenging freebies is pending before the Supreme Court. During Lok Sabha election we saw that one of the parties Congress have distributed a guaranteed cards along with the forms that if they come to power, they will give Rs.8500/- to every woman and Rs.1,000,00/- per year to meet major expenses. This party has won more seats than last two elections and there was religious concentration of votes. There was also a statement that the party if come to power would confiscate entire wealth and do caste survey and thereafter redistribute the same. The congress party won 99 Lok Sabha seats. However, they are in power in three states. Telangana, Himachal and Karnataka. They can offer them. But women who were given guarantee cards along with form started Queuing up outside Congress Party offices. They said we have lost. The question arise now is whether this is a blatant fraud? What does law say? The law which governs election is the Representation of peoples Act 1951 ( Said RP Act 1951) The question is whether all this statements go against the provisions of Section 123 of RP Act 1951 ? A complaint is pending before the President of India challenging election. Now question arises Can third party challenge in representative character the election of candidates who belong to a single largest party who won election on basis of guaranteed card? Who has jurisdiction to hear the election Petition under Section 123 and 8A of RP Act 1951? Does President of India have power under Section 123 or 8 A of the said R.P. Act 1951? This Act came into force on 17th July 1951. Preamble of the Act explains the purpose of its enactment. An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt 1*** practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. The terms corrupt practices is defined in the Act as “corrupt practice means any of the practices specified in section 123” What does corrupt practices mean. Section 123 in The Representation of the People Act, 1951 provides for the same. Corrupt practices.— The following shall be deemed to be corrupt practices for the purposes of this Act:— (1)“Bribery”, that is to say— (A) any gift, offer or promise by a candidate […]
Read more
AMENDING THE CONSTITUTION BY A JUDGEMENT AND ENCROACHING UPON THE POWER OF THE CONSTITUTIONAL HEAD A JUDICIAL OVERREACH?
Why are we discussing this issue? Anoop Baranwal v. Union of India A Constitution Bench of the Supreme Court has ordered that Election Commissioners will be appointed by the President of India on the advice of a Committee consisting of the President, Prime Minister, Leader of Opposition, and Chief Justice of India. However, in this case, the Office of the President was not a Party. Directions were sought against the Election commission. Hence prima facie the Judgment is not binding upon her. POWER TO AMEND The power to amend the constitution is with Parliament. It is an unfettered power under Article 368 of the Constitution. However, a series of Judgements and stare decisis has put a limitation on the exercise of this power. It was felt by the Court that elected representatives may have their own agendas. The landmark judgments say that as far as fundamental rights are concerned amendment should not touch the basic structure of the constitution. ROLE OF JUDICIARY UNDER THE CONSTITUTION: The Supreme Court has the power to declare any law that it finds unconstitutional void. CAN SUPREME COURT AMEND THE CONSTITUTION BY ORDER AND JUDGMENT? On two occasions this question has arisen: The power of the President to appoint higher court Judges under Articles 124 and 217 is shielded by a Judgement and a system of collegium is formed; Amending Article 324 whereby the power of the President is veiled by a recent judgment of the Supreme Court in the matter of Anup Baranwal ( Supra); POWER OF THE PRESIDENT UNDER THE CONSTITUTION: Under Article 52 President is bestowed upon executive powers. Every power is executed in the name of the President under Article 77. WHAT ARE THE CONSTITUTIONAL PROVISIONS: What is Election Commission? Under the provisions of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business)] Act, 1991 “Chief Election Commissioner” means the Chief Election Commissioner appointed under Article 324 of the Constitution. PART XV Provides for the appointment of the Election Commission and procedure. Under Article 324 entire superintendence, direction, and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution vests in a Commission (referred to in this Constitution as the Election Commission). APPOINTMENT The Election Commission under Article 324 consists of the Chief Election Commissioner and such number of other Election Commissioners if any, is appointed by the President from time to time and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. When any other Election Commissioner is so appointed by the President the Chief Election Commissioner shall act as the Chairman of the Election Commission. Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the […]
Read more
CAN MINISTER INTERFERE IN INVESTIGATION?
We will discuss following issues in this write-up What are the Minister’s general power to review the working of the investigating agency and to give broad policy directions regarding the functioning of the agencies ? What is oath and what are constitutional provisions? Consequences of breach thereof? If Minister exceeds power, does it amount to breach of oath? What recourse open to the Chief Minister /State Government or Governor ? Can they approach Court under Article 226 or Article 32 of the Constitution of India? Let us first learn provisions of the Constitution of India: CONSTITUTIONAL PROVISIONS For State the Constitution provides 159. Oath or affirmation by the Governor.—Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior-most Judge of that Court available, an oath or affirmation in the following form, that is to say— ―I, A. B., do swear in the name of God that I will faithfully execute the solemnly affirm office of Governor (or discharge the functions of the Governor) of ………(name of the State)and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of ..……(name of the State).‖ Under Article 164 every minister has to take oath before entering into his office it says: 164. (1) Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor…. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule… Article 193 provides for penalty Penalty for sitting and voting before making oath or affirmation under article 188 or when not qualified or when disqualified.—If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State. Form of oath of secrecy for a Minister for a State:— ―I, A.B., do swear in the name of God that I will not directly or indirectly communicate or reveal solemnly affirm to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the State of ………………..except as […]
Read more