Saturday, June 30, 2007

Continuing the discussion on "undue influence"

I want to begin by thanking V. Venkatesan for his prompt and detailed response to my comment and for setting out the facts and decision in the Shiv Kripal Singh case, as well as the provisions of law that are directly relevant, in the previous post. While I understand the argument now, I am still not convinced that the case is a direct precedent for the Patil imbroglio.

Before getting to the main issue of 'undue influence,' it is important to understand the Congress' response to the allegations against Ms Patil so far. Mr. Venkatesan is right to correct me by pointing out that there have in fact been responses by the Congress to the allegations. Shekhar Gupta has a column in the Express today, where he discusses these responses at some length. Relying on his account, here are the responses so far:

"What are the various arguments the Congress is putting forward in Pratibha Patil’s defence? That she is not to be blamed for loan defaults by her sugar mill because the entire sugar sector has seen a slump anyway. Second, that she is not to be blamed for all the shenanigans in the bank founded by her, and named after her, because, barring a small period, she did not have a formal position in its top management. And third, and probably the most honest of all, that all the charges thrown at her could be thrown at any other Maharashtra politician anyway because each one of them owns three things, a co-operative bank, a sugar mill and a bunch of colleges, and finally, that each one of these businesses lends itself to controversies."

One can debate whether these amount to substantive responses, but what is more significant is that the Congress is not denying these facts, but seeking to explain them away. There lies the first important distinction between this and the Shiv Kripal Singh case, where the Court found the allegations against Mr. Sanjiva Reddy to be "fictitious" and completely without basis.

As Gupta explains, given the reality, it seems highly likely that Ms. Patil will become our next President, which makes the scenario of an election dispute where she alleges 'undue influence' highly unlikely. Even if this were to somehow transpire, I think there are important reasons why the Court will not hold in her favour. Apart from the nature of the facts in this case (which have now gone beyond being a smear campaign, given that some of the most damaging allegations have not been disputed), I believe that the Court has given many more rulings since 1969 which would cast this case in a different light. We now have a Right to Information Act(which the Court would like to believe was a direct result of some of its rulings), as well as decisions of the Court which have emphasised the need for close scrutiny of the backgrounds of candidates in elections. Given this recent background, it would be hard for the Court to try and argue that asking legitimate questions about a candidate's background (especially when this is in the context of the highest office in the nation) amount to 'undue influence' in relation to the voters in the electoral college.

My present position is still dictated more by gut instinct than by a close examination of the applicable law and precedents (including the Shiv Kripal case). This discussion will make me focus on those issues, but my initial view is that it would be hard to assail at least the legitimate questions being asked about Ms Patil's past conduct.

4 comments:

Aditya Swarup said...

hi,
the supreme court is hearing the quota case on the 17th of july. There is a high possibility that the case be transferred to a nine or eleven judge bench.
Would appreciate if this blog could post daily details of the case when it starts.

Rampal of the Bailey said...

In the PUCL cases, the SC has already held that in an ordinary election, voters are entitled to know the antecedents of candidates, and even raised this to the level of a fundamental right under Art. 19(1)(a) viz. the right to information. By analogy, even in the Presidential/Vice Presidential elections, the dissemination of information (not falsely malicious) which helps the electoral college make an 'informed' choice should be permissible.

Mr. Venkatesan:
On the issue of whips (very interesting etymology btw), you raised the issue of the Tenth Schedule and its applicability. In G. Viswanathan v. Speaker, TN. Assembly, AlR 1996 SC 1060, the SC (with one of its leaps of logic) held that an expelled party member must be deemed to have 'voluntarily left the party' for the purposes of the Tenth Schedule. This would have interesting and unforeseen repercussions if someone were expelled for violating a whip issued in matters such as Presidential elections which do not otherwise fall within the purview of 'House business'.

V.Venkatesan said...

Dear Mr.Rampal,
Thanks for the reference to the SC verdict which considered expulsions to have the same effect as the resignations under the Tenth Schedule. There is no quetion of issue of whip in the Presidential elections going by the precedents in 1997 and 2002 which did not see any Whips being issued following an all-party agreement. My point was only about whether an informal direction could be issued by the party high command (without calling it a whip) - or even hints thrown that if it comes to the knowledge of the party high commmand through reliable sources in the party that so and so has cross-voted (in the political not legal sense as there can be no cross-voting in Presidential elections), then it could invite punitive action. Not necessarily expulsions. As there is a general understanding that expulsions can't lead to disqualifications (despite that supreme court judgment), the parties don't normally rush to expel a dissident.

V.Venkatesan said...

Dear Mr.Aditya Swarup,
I appreciate your interest in the OBC case. While I am also looking forward to listen to the various arguments during the hearing, I'm afraid I can't promise to write a post on a daily basis. May be one post after the hearing concludes, depending on what I have to say, beyond the headlines in the newspapers.