Tag Archives: prohibition

Election 2019: Poll related violence compels ECI to prohibit campaigning in West Bengal

Newsroom24x7 Network

New Delhi: After a series of poll-related violent incidents, including large-scale stone pelting, arson and rioting, the scuffle between the ruling Trinamool Congress (TMC) and Bharatiya Janata Party workers during BJP President Amit Shah’s road show in Kolkata on Tuesday, the Election Commission has stepped in and to ensure free, fair and peaceful elections in West Bengal issued orders under Article 324 of the Constitution and all other enabling powers to bring down the curtain on campaigning in nine West Bengal parliamentary constitencies going to poll on 19 May.

After considering the inputs received from West Bengal, ECI has issued directives on Wednesday, 15 May 2019, to relieve Rajeev Kumar, IPS, ADG, CID, with imemdiate effect and attached him to the Union Ministry of Home Affairs in New Delhi by 10.00 am on 16 May 2019.

The Election Commission has also relieved Atri Bhattacharya, lAS, Principal Secretary, Home & Hill
Affairs, Government of West Bengal from the charge he was holding for having interfered in the process of conducting the election by directing the Chief Electoral Officer, West Bengal vide his D.O. letter
No.629/HS/PA/19 on 13.05.2019.

The West Bengal Chief Secretary will look after the additional charge of Home Secretary, West Bengal.

The Constitution in Article 324 has vested the responsibility of conducting free and fair elections to Parliament and State Legislatures and to the office of the President and Vice-President of India in the ECI.

On Wednesday, the authorities after delaying its response to a Supreme Court order, released on bail BJP activist Priyanka Sharma, who had been arrested two days ago for sharing a meme of West Bengal Chief Minister Mamata Banerjee.

The Mamata meme

The ECI has directed that no person shall convene, hold, attend, join or address any public meeting or procession in connection with an election or display to the public any election matter by means of cinematograph, television or other similar apparatus, or propagate any election matter to the public by holding or by arranging the holding of any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public in connection with the ongoing elections in West Bengal.

The ECI order says that no spirituous, fermented or intoxicating liquors or other substances of a like nature shall be sold, given or distributed at a hotel, eating house, tavern shop or any other place, public or private, within polling areas in nine West Bengal constituencies – Dum Dum, Barasat, Basirhat, Jaynagar, Mathurapur, Diamond harbour, Jadavpur, Kolkata Dakshin and Kolkata Uttar till the conclusion of poll on 19 May 2019.

Click here for ECI order to prohibit campaign by all political parties in West Bengal

Click here for ECI order to relieve West Bengal officers of their charge with immediate effect

The letter that led to the immediate removal of the Principal Secretary Home and Hill Affairs, Government of West Bengal

Nitish: Prisoner of Prohibition

Shitanshu Shekhar Shukla

bihar-prohibitionBihar Chief Minister Nitish Kumar’s refusal to learn from the decision of Patna High Court striking down the notification on prohibition for being ultra vires the Constitution defies political reasoning. By replacing a law with a more draconian notification, he braved out the legal setback to show his commitment to prohibition.

Nitish is much too seasoned a politician to be unaware that there is every likelihood of the notification getting struck down. Question arises: Why did he persist with a notification that bound to be struck down by court? One of the plausible explanation for the Chief Minister veering into the theatre of absurd is his attempt to make prohibition an emotive issue so as to brand himself a champion of a cause dear to women.

Women almost single handedly voted Nitish back to power in Bihar in the last Assembly election. If women can vote for him in a state, why they cannot form a vote bank in another state? This is a flawed presumption but ambition is often blinding. Besides, Nitish has had enough of Bihar and wants to land in Delhi. Modi’s advent to powr at the Centre has shown him the path and Nitish now wants to cultivate a vote bank or a political constituency independent of caste and community across the country to fulfill his political ambition.

Unlike Yadavas, his own castemen- the Kurmis are only 4.3 % of the state population and can’t therefore dictate the state politics. On the other hand, a vote bank of Yadavas (14% of state population) and Muslims has made Lalu Yadav more powerful than a Chief Minister despite a conviction in the fodder scam case and a sullied image in the eyes of the common man. The Rashtriya Janata Dal arm-twisted Nitish Kumar into facilitating the bail of Mohd Shahabuddin, the controversial RJD leader and former MP from Siwan. Ironically, it was Nitish Kumar who had fast-tracked the cases against the Siwan MP during his previous NDA regime when conviction and consequent sentences barred Mohd Shahabuddin from contesting the polls. Aware of changed political equation in the state now, Md Shahabuddin stung Nitish Kumar calling him a leader of circumstances besides refusing to accept him as leader. Nitish Kumar squirmed and tried to get even with him in Supreme Court by challenging his bail. Although the Supreme Court has sent Shahabuddin back to jail, it made extremely caustic remarks against selective amnesia of Nitish Kumar. Patna High Court also struck down the prohibition law. Instead of tempering his approach, Nitish braved it out with a much more draconian law. He may lose the prohibition law in the court but wants to win the war of perception.

Nand Kishore Yadav of Bharatiya Janata Party leader and leader of opposition in Bihar assembly told this columnist over phone, “the prohibition is a bee in his bonnet. I told him during the debate in the state assembly that we support the cause but it is not a law and order problem that you can solve with a law. It is a social evil instead and therefore needs a sustained socio-cultural holistic approach. But that is a long shot. It is also a tough job. In a tearing hurry, Nitish wants an easy way, a short cut. But the court may strike down the law.”

When asked if Nitish is feigning ignorance of the judiciary, the BJP leader said, “he appears to believe that right to legislate is invested with the legislature alone. Once it receives the consent of the Governor, the Bill is a law.” So far so good. Right to drink is not a fundamental right, enshrined in the constitution. At the same time, punishment can’t be disproportionate to a crime committed. Whatever the merit of the case, a chief minister can’t play cat-and-mouse game with the judiciary for long and faces the risk of getting hauled up after a while for contempt of court.

The BJP leader suggested that Nitish Kumar won’t mind being pulled up for contempt of the court. “He may evoke sympathy to play a tragedy hero,” suggested Yadav. But the plot doesn’t seem to be working for Nitish. In desperation, he exaggerated the role of prohibition by giving a Chinese spin a couple of days ago, with the assertion: “prohibition can be the best tool to counter China,”.

Nitish Kumar’s reading of the social scene also is flawed. First, everyone who drinks doesn’t necessarily beat his wife. Besides, the phenomenon is confined mainly to the lower middle class, which means that Nitish Kumar’s purported base will be a limited one.

Is the Madhya Pradesh Bharatiya Janata Party Government trying to extinguish people’s Right to constitutional remedies?

Lalit Shastri

fundamental ightsIs the Bharatiya Janata Party Government in Madhya Pradesh bent upon extinguishing the citizens’ Fundamental Right to constitutional remedies by following the route of bulldozing and passing a Bill through brute majority in the special one-day session of the state Assembly tomorrow in order to enact a law to prevent people from approaching the superior court directly to file writ petitions as public interest litigation (PIL) against State ministers or government officers accused of indulging in corruption on the basis of information procured through the Right to Information Act.

It is learnt that the state cabinet has given approval to a Bill likely to be introduced and passed in the State Assembly tomorrow. While the full details of the Bill are yet to see the light of day, it is understood that the Bill is intended to block or delay PILs and writ petitions against ministers and government officers. The operative portion of the Bill, it is further learnt, suggests that PILs or writs against ministers and state government officers by citizens on the basis of information procured through the RTI will be allowed only with the approval of the State Advocate General.

This amounts to snatching away the citizens’ right to constitutional remedies and is a clear violation of the the Fundamental Rights guaranteed under the Constitution. Right to constitutional remedies [Article 32 to 35] empowers the citizens to move a court of law in case of any denial of the Fundamental Rights. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. Only when a national or State Emergency is declared, this right gets suspended by the central government.

The Constitution protects the citizens’ Fundamental Rights such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights result in punishments as prescribed in the Indian Penal Code or other special laws. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy.

Everyone knows that when a petition by a citizen comes up for mentioning at the Supreme Court or the High Court level, it is entertained only on merit and notices are served, otherwise the petitions are summarily dismissed. The court and the judges comprising the bench have the discretion and authority to decide whether or not the case is made out for protection of the right to constitutional remedy.

Notwithstanding the fact that the post of Advocate General is a constitutional post, what should not be lost track of is that the “Advocate General and his office defends and protects the interest of the State Government and gives invaluable legal guidance to the State Government in formulation of its policy and execution of its decisions” [Refer:-(1994) II SCC 204: State of U.P. & others v/s U.P. State Law Officers Associations & others]. Also in the Joginder Singh Wasu V/s State of Punjab [Refer:- (1994) I Supreme Court Cases 184], the Apex Court has categorically said: “The Advocate General and his Law officers are basically engaged to deal with the court cases in the High Court by the State Government and the relationship between the Government and Law Officers is that of a client and counsel.” The proposed Act of Madhya Pradesh government would amount to not just snatching away the fundamental rights of the citizens but also lead to encroaching upon the Superior Court’s power to decide whether or not a PIL has to be admitted on merit. It is obvious that the Act the State Government wants to enforce, even if it gets the Governor or the President’s assent would not pass the acid test of judicial scrutiny as it would not only undermine but extinguish the citizens’ Fundamental Right – the right to constitutional remedies – guaranteed under the Constitution.

Judges in a High Court are appointed by the President of India in consultation with the Chief Justice of India and the governor of the state. Independence of judiciary is the cornerstone and a basic feature of our Constitution and what is significant is that Indian Judiciary has been kept free from the executive only to protect the rights of the citizens.

The Advocate General of a State is also a constitutional post and is appointed under Article 165 of the Constitution of India and the function of the Advocate General is specified under Article 165 & 177 but it is only the State Governor, who appoints the Advocate general on the advise of the State Government.

A lot of water has already flown in the Narmada River – the lifeline of Madhya Pradesh – since, 31 years ago, when senior Advocate Pushpa Kapila Hingorani had brought a revolution in the country through a PIL and had taken up the plight of undertrial priseners suffering in Bihar jails. The then Chief Justice of India Justice P.N. Bhagwati had ordered the release of over 40,000 undertrial prisoners all over the country in response to that case.

Is the Madhya Pradesh Government trying to push the clock back and impose a draconian emergency-like situation in the State only to protect the deviant, the wayward and the corrupt in Government.