New Delhi, July 17
The commission, which considered the issue following the BJP’s demand that “compulsive abstention” should be declared unconstitutional in the wake of Third Front’s decision not to exercise franchise, said voting or not voting in the Presidential election would not attract disqualification.
The three-member commission met today and came out with a decision that said electors in the Presidential election, MPs and MLAs, vote as members of the electoral college and the voting was outside the House concerned and not a part of the proceeding of the House.
“Therefore, the observations of the Hon'ble Supreme Court in the case of Kuldip Nayar and Pasupati Nath Sukul, will apply with equal force in the Presidential election as well.
“Accordingly, in the commission’s opinion, the voting or not voting as per his/her own free will at the Presidential election will not come within the ambit of disqualification under the Tenth Schedule to the Constitution of India and the electors are at liberty to vote or not to vote at the Presidential election as per their own free will and choice,” the EC said. Holding that voting in the Presidential election is not compulsory like in Assembly or Lok Sabla elections, the commission said every elector had the freedom of making a choice to vote for any of the candidates or not to vote as per his free will and choice.
This freedom, the commission said, would equally apply to the political parties and they were free to canvas or seek votes of electors for any candidate or requesting or appealing to them to refrain from voting. “However, the political parties cannot issue any direction or whip to their members to vote in a particular manner or not to vote at the election leaving them with no choice, as that would be tantamount to the offence of undue influence within the meaning of Section 171C of the IPC,” the EC said.
In the wake of the UNPA’s decision to abstain, an NDA delegation led by BJP leader L.K. Advani met the commission yesterday and said elected representatives of several political parties were being prevented from voting because of the pressure of their parties to abstain. Any member who breached this decision could be liable for disciplinary action within the party and also under anti-defection law, it felt.
The NDA memorandum asked the EC to check the parties from directing its members not to vote and to clarify doubts that any direction of the party to its MPs and MLAs to abstain would be unconstitutional.
The Commission clarified that voting in the Presidential election was different from voting by an MP or MLAs inside the House and that, as held by the Supreme Court, the provisions of the anti-defection law may not apply to the Presidential election.
The commission referred to the question that arose before the apex court in the Kuldip Nayar versus Union of India whether the provisions of the anti-defection law would be attracted in the case of election to the Rajya Sabha if an MLA votes in defiance of the party’s directions. Now, voting in the Rajya Sabha elections is done in a system of open balloting.
The court held that an elector would not attract the penal provisions of the anti-defection law for defiance of the party whip in the Rajya Sabha election.
The court had maintained that it was not correct to contend the open ballot system tended to expose the MLAs to disqualification under the Tenth Schedule since that part of the Constitution was meant for different purposes.
The commission said the court had in Pusupati Nath Sukul versus Nemchandra Jain case held that election to the Rajya Sabha by MLAs were a non-legislative activity and not a proceeding within the state legislature. — PTI
Cong welcomes verdict
New Delhi, July 17
Reacting to the Election Commission’s order, Congress spokesperson Abhishek Singhvi said it was in accordance with established law as it was well known that just as a member of the electoral college has a right to vote, he or she also has a right to asbtain from voting.
“Similarly, if a candidate or a political party can appeal to MPs and MLAs to vote, they can also issue an appeal not to vote,” Singhvi said, adding that the legal position on this issue is well-known but the BJP approached the Election Commission to create confusion among the voters.
Singhvi agreed with the EC that political parties cannot issue a whip to their members to vote or not to vote as they cannot be disqualified for rejecting the appeal. “The BJP ws only doing political melodrama but it got a categorical reply from the Election Commission,” Singhvi added.
The BJP had sought the Election Commission’s intervention in this matter after the UNPA or Third Front parties decided that their members would not participate in the July 19 presidential election.
Meanwhile, hectic preparations are on for the most-bitterly contested presidential election. Ballot papers have been despatched to the various state assemblies and both sides have deputed special observers to instruct their MLAs on the dos and don’ts for the poll.
UPA chairperson and Congress president Sonia Gandhi hosted a special dinner tonight for the leaders and MPs of the UPA and its supporting parties, including the Left parties and the BSP. The UPA-Left presidential candidate Pratibha Patil was the guest of honour as she was introduced to all MPs.
With only a day to go for the election, canvassing has entered the last lap. After the BJP relesed two booklets detailing all alleations of corruptiona nd financial irregularties against Patil, a similar booklet has now surfaced against the NDA-backed presidential nominee Bhairon Singh Shekhawat.
The booklet has not been circulated officially by the Congress but it appears to have the party’s blessings. The 16-page glossy booklet gives details of old cases of corruption and scams against Shekhawat and raises questions about his RSS affiliation and his suspension from the police force. “How can the three service chiefs salute a suspended constable,” it is asked while describing Shekhawat as “Advani’s joke on the nation.”