[list-milap-x-y-z] Supreme Court could have passed the Judgment in the year of 1995 in my Writ Petition, which now pronounced on 27th August, 2014

Supreme Court could have passed the Judgment in the year of 1995 in my Writ Petition, which now pronounced on 27^th August, 2014

 

On 1^st August, 1995, Vohra Committee Report on Politic-Crime-Nexus was published and on 9^th August, 1995 I filed a PIL being Writ Petition (Civil) No.559/95 with interalia following prayers : -

i)         ISSUE direction to respondent No. 1 (Union of India) to make appropriate law in compliance of Constitution of India restricting entry of criminals into the politics by participating in the Election process to become the members of Parliament or State Legislative Assembly of any State;

ii)                  ISSUE direction to respondent No. 2 (Election Commission of India) to evolve a method to restrict the candidature of a person, facing criminal proceedings in any Court of Law, for the Membership of Parliament or State Legislative Assemblies and after due approval from this Hon’ble Court, impose the same for future elections till the respondent No. 1 makes Law; as prayed for under prayer No. i ) hereinabove.

  under paragraph 14 of the said Writ Petition interalia following suggestions were made by me:-

a)      No person can contest Election for Parliament or State Assembly, if he is accused in any criminal proceedings and Police prima-facie had satisfied with the complaint by filing charge sheet, till he not discharged or acquitted from such criminal case by a Court of Law;

b)      No person can contest Election for Parliament or State Assembly, unless he declares all the properties and business of his family members, before the Law Commission;

c)      The Members of Parliament and / or State Legislative Assemblies should be defined as Public Servants under all criminal laws.   

on 29^th August 1995 I moved the said Writ Petition in person before the Hon’ble Chief Justice’s Court presided by A.M.Ahmadi, C.J. as then was, and after hearing the same Hon’ble Court, dismissed the said Writ Petition with observations that Court can’t do anything in such matter. But, after few days thereafter Hon’ble Chief Justice’s Court presided by A.M.Ahmadi, C.J. as then he was, admitted another Writ Petition based on self-same Vohra Committee Report, registered as Civil Writ Petition No.664/95 filed by Mr. Dinesh Trivedy, M. P., and moved by some renowned Lawyers of the Supreme Court. Admission of such subsequent Writ Petition was not consistent to prevailing principle of the finality of final order of the Supreme Court. After knowing the fact relates to such admission of another Writ Petitioner, on 1^st December 1995, I filed another Writ Petition (Civil) No. D-18372/95 with prayers interalia that in compliance of clause (4) of Article 32 of the Constitution of India the Jurisdiction of Supreme Court has been seized to dismiss any Writ Petition filed as remedy for enforcement of Fundamental Rights, without hearing on the merit. On 29^th January 1996 said Writ Petition (Civil) No. D-18372/95 was listed for hearing along with the said Civil Writ Petition No. 664/95, Hon’ble Chief Justice’s Court presided by A.M.Ahmadi, C.J. as then he was, accepted the argument forwarded by me observing that they are not dismissing rather disposing off the same by passing judicial order. When the Hon’ble Court was dictating the said order, one Advocate stood up and wanted to know the fate of Third Writ Petition filed by his client and moved by him, on the same issue, Hon’ble Court observed that all other petitions would face the same fate. Then the said Advocate objected it, which was supported by Ld. Mr. Ram Jeth Malani, Sr. Lawyer, than Hon’ble Court observed that in such event Mr. Choraria’s Petition would be also heard together with all other Petitions relating to the same matter in issue. But, this subsequent order was not corroborated with certified copy of the Order of the day. After going through the certified copy of said order, I placed the matter in the notice of the Hon’ble Court by filing another Writ Petition (Civil) D-2595/96 on 12^th February 1996. But, on 11^th March 1996 Hon’ble Chief Justice’s Court dismissed the Petition.

 

That on 20^th March 1996 I filed a Petition before Election Commission of India that in the consideration of Article 324 (1) read with Article 326 of the Constitution “Commission should invite following information on oath or affirmation from the intending candidates for such elections to furnish along with nomination papers: -

(a)   Whether any Criminal Proceeding in any Court of law is pending? if yes ; please state:

(i ) Name of the Police Station, within Constituency or outside the Constituency ;

(ii) Number of Crime in respective Police Station?

(iii) Date of Crime according to F.I.R. registered in Police Station ?

(iv) reference of law under which crime is registered ?

(b)   Whether, Charge Sheet is filed by the investigating authority in the above referred Crime Number? If, yes, please state: -

(i)                 Name of the Court, in which charge sheet is filed?

(ii)               Number of the Crime Registered in the Court?

(iii)             Date of Charge Sheet?

(iv)              Reference of Law under which Charge Sheet is filed?

(c)    The present status of the proceedings?

(d)   If the Criminal Proceedings are pending more than one, similar informations should be provided in respect of each such proceeding.”

Now Information available under RTI Act, from the Election Commission Of India to me, disclosed that the Letter/Notification No. 509/Disqln./97/J.S.-I/Vol.II dated 6^th January 1998 issued by Election Commission of India is containing first Format of the Affidavit invited from the candidates to disclose the records regarding criminal cases was based on my aforesaid Suggestion and my name with aforesaid suggestion was recorded in the file Noting.

 

 SUPREME COURT JUDGMENT IN WRIT PETITION (CIVIL) NO. 289 OF 2005 dated 27^th August, 2014 in the matter of Manoj Narula ... Vs- Union of India interalia hold that:-

From the aforesaid, it becomes graphically vivid that the Prime Minister has been regarded as the repository of constitutional trust. The use of the words “on the advice of the Prime Minister” cannot be allowed to operate in a vacuum to lose their significance. There can be no scintilla of doubt that the Prime Minister’s advice is binding on the President for the appointment of a person as a Minister to the Council of Ministers unless the said person is disqualified under the Constitution to contest the election or under the 1951 Act, as has been held in B.R. Kapur’s case.

That is in the realm of disqualification. But, a pregnant one, the trust reposed in a high constitutional functionary like the Prime Minister under the Constitution does not end there. That the Prime Minister would be giving apposite advice to the President is a legitimate constitutional

expectation, for it is a paramount constitutional concern. In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister.

The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance.

It is worthy to note that the Council of Ministers has the collective responsibility to sustain the integrity and purity of the constitutional structure. That is why the Prime Minister enjoys a great magnitude of constitutional power. Therefore, the responsibility is more, regard being had to the instillation of trust, a constitutional one. It is also expected that the Prime Minster should act in the

interest of the national polity of the nation-state. He has to bear in mind that unwarranted elements or persons who are facing charge in certain category of offences may thwart or hinder the canons of constitutional morality or principles of good governance and eventually diminish the constitutional

trust. We have already held that prohibition cannot be brought in within the province of ‘advice’ but indubitably, the concepts, especially the constitutional trust, can be allowed to be perceived in the act of such advice.

Thus, while interpreting Article 75(1), definitely a disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister.

Rest has to be left to the wisdom of the Prime Minister. We say nothing more, nothing less. At this stage, we must hasten to add what we have said for the Prime Minister is wholly applicable to the Chief Minister, regard being had to the language employed in Article 164(1) of the Constitution of India. 

 

TRUTH SHALL ALWAYS PREVAIL
Milap Choraria: National Convenor : Movement for Accountability to Public (MAP)
http://milapchoraria.tripod.com/msp