'An Unwarranted And Unjustified Exercise Of Power By The EC'

CPI(M) Seeks Rashtrapathi's Intervention

The following is the text of the letter addressed to the President of India, A P J Abdul Kalam by CPI(M) general secretary, Prakash Karat on May 11, 2006. The letter is regarding the complaint received by the president on some members of parliament holding offices of profit, which the president had forwarded to the Election Commission.

DEAR Rashtrapathiji,

I am writing to you regarding a complaint sent to you about some members of parliament belonging to the Communist Party of India (Marxist) holding offices of profit. You had forwarded this complaint to the Election Commission as per the provision of the Constitution.

Since then, the Commission has dealt with the complaint and in this connection I would like to put before you the following:

1. From the media as well as from an announcement made by the chief election commissioner on television on March 24, 2006, it was disclosed that a complaint was made against several members of parliament belonging to the Communist Party of India (Marxist) that they were allegedly holding Offices of Profit under the state government and were liable to be disqualified from being members of parliament.

2. Nilotpal Basu (then a member of Rajya Sabha) whose name was mentioned as one of the named MPs by the chief election commissioner (during his telecast  on 24 March, 2006), then wrote to the chief election commissioner and the election commissioners of India on March 30, 2006 requesting for a copy of the complaint/petition filed by one Mukul Roy of the All India Trinamool Congress and a copy of the order, if any, that had been passed thereon by the Election Commission. 

3. By a communication dated April 20, 2006 the under secretary to the Election Commission of India forwarded to Basu a copy of what was stated to be a “complaint” (but which is  nothing but a letter with  allegations against certain MPs that they were holding offices of profit, but without any details whatsoever).  This complaint it appears was made by Mukul Roy on March 8, 2006 on the letter-head of the Trinamool Congress party.   A copy of the order passed by the Election Commission of India on March 24, 2006 in Reference Case No. 3 of 2006 (under Article 103(2) of the Constitution of India) was also forwarded to Basu from which, it clearly appears that  the Commission has held that the “petition” not only did not disclose the dates of the appointment to the alleged offices of profit stated to be held by several members of parliament, but also that the complaint had not produced any documentary evidence to substantiate his contention/allegation that the offices held by the opposite parties were as a matter of fact and law Offices of Profit under the government within the meaning of Article 102(1) (a) of the Constitution. In spite of the fact that the “petition” did not disclose any material whatsoever, the Election Commission, quite gratuitously went on to call upon the said Mukul Roy, the alleged complainant, to furnish by April 17, 2006 the following:

1. Precise information about the date of appointment of each of the opposite parties to the offices stated to be held by them, and

2. All relevant information/documents by which he proposes to substantiate  his contention/allegation that the opposite parties are holding the office of profit under the government within the meaning of Article 102 (1) (a) of the Constitution”:

In effect calling upon Mukul Roy to make out a case against the concerned MPs.  

4. The Election Commission of India has invariably asserted that it exercises quasi-judicial powers while discharging its functions under Article 103 of the Constitution of India. As such, it was incumbent upon the Election Commission to reject in limine the purported petition/complaint of Mukul Roy which did not disclose any prime-facie case whatsoever and should have given its opinion to the president that the purported complaint did not disclose even the slightest prima-facie case of which cognisance could be taken. 

5. It is well established, a view shared by many eminent lawyers, that no judicial or quasi-judicial authority can seek to obtain materials from a party with a  view to make out a cause of action, where none is disclosed. If the so-called petition/complaint did not disclose any case whatsoever (as the fact was and is) it was incumbent on the quasi-judicial authority to reject the same.

6. Surprisingly, instead of so doing, the Election Commission of India, sought to give an opportunity to the so called complainant to try to make out a case, by inviting him to furnish materials/documents etc –– in a move calculated to cure the incurable defects, which it is submitted is no part of the duty of a judicial/quasi-judicial authority.

7. We strongly believe that there has been an unwarranted and unjustified exercise of power and authority on the part of the Election Commission of India – unwarranted because it has violated basic norms of jurisprudence, and unjustified because it has transgressed all rules of fair play. The order passed by the Election Commission of India on March 24, 2006 was and is illegal and unconstitutional especially since the Election Commission has chosen to step into the arena of controversy, something that the Election Commission should have eschewed. In the circumstances we submit that the Election Commission should not proceed further and should reject the purported complaint against the members belonging to the CPI(M) as it was made at  a time and with a view to the state elections and was motivated on the face of it for political and not for  bonafide purposes.  The impression created by the order of March 24, 2006 is that the Election Commission gives credence to the bare allegation that the named MPs do hold offices of profit as alleged (hence the demand for particulars): this impression should not have been created by an un-biased constitutional authority as the Election Commission of India undoubtedly is.  Hence the request that the complaint be rejected outright and the “order” of  March 24, 2006 be forthwith recalled. Only such action can help restore confidence and meet with the ends of justice. 

I hope you will give serious consideration to the points raised above and kindly take suitable action.

(INN)