A CIVIL SERVANT EXTRAORDINARY, FEARLESS AND EXEMPLARY

V.SUNDARAM I.A.S.

Yesterday on this Blog, I had written an article about how Firangi Memsahib Sonia Gandhi has brazenly subverted the Indian Constitution by accepting a Title called Grand Officer of the Order of Leopold’ from the Government of Belgium on November 11, 2006, in gross violation of Article 18 and clause (d) of Article 102(1) of the Indian Constitution. The President of India made a reference to the Commission on June 25, 2007, seeking its opinion under Article 103 (2) of the Constitution, on a petition dated May 7, 2007, submitted by Shri P. Rajan, Convener, Yogam’19, Cochin, Kerala, alleging that Smt. Sonia Gandhi, Member of Parliament by accepting that Belgian Government Award had incurred disqualification to function as MP.

P.RAJAN

Shri Gopalaswami, the Former Chief Election Commissioner, gave an INDEPENDENT OPINION on the Presidential Reference on 19-1-2009 (Reference No.10 of 2007). I have been able to obtain a Copy of this Opinion from the office of Dr.Subramanian Swamy.

Shri Gopalaswami was constrained to give an Independent Opinion in his capacity as Chief Election Commissioner because his fellow Election Commissioners Navin Chawla and S.Y.Qureshi were acting as Political Agents of Firangi Memsahib Sonia Gandhi. They had joined together to frustrate and defeat the most honourable attempts of The Chief Election Commissioner to uphold the letter and spirit of the Indian Constitution. A careful reading of Gopalaswami’s bold, fearless, objective and ruthlessly fair OPINION will show that Navin Chawla was the wholly active partner in this sordid political business and S.Y.Qureshi, the sleeping partner. Bernard Shaw said “Get hold of solid facts first before you distort them”. Shri Gopalaswami has clearly brought out the truth that these two fellow Election Commissioners jointly gave a coloured opinion which was based on either blatant distortion of facts or authoritarian rejection of facts.

The following issues raised by Shri Gopalaswami having regard to the lofty objective of absolute maintenance of absolute Public interest, at all costs and irrespective of the personalities involved, have not yet been answered.

a) Though Shri.Gopalaswami had time and again requested Navin Chawla and S.Y.Qureshi to send a letter to Sonia Gandhi to furnish a Copy of the Title called Grand Officer of the Order of Leopold which she had received from the Belgian Government to enable the Election Commission to examine the Case in depth and greater objectivity, yet it is a sad fact that these 2 Election Commissioners completely disregarded the correct advice given by the Chief Election Commissioner and functioned as informal advocates for the Firangi Memsahib. Thus unmerited and totally one-sided justice was given to the Firangi Memsahib, resulting in a jointly planned and conspired denial of equity and natural justice to Mr.Rajan the Petitioner.

b) Even a Third Class Stipendiary Magistrate would have given a personal Hearing to Mr.Rajan, the Petitioner in this Case. Time and again Shri.Gopalaswami tried to persuade his 2 wholly partisan and fifth columnist fellow Election Commissioners that it was absolutely necessary in the interest of fair-play and justice that the Petitioner should be given a personal Hearing before a final decision was given in this Case. This very decent and reasonable request of Shri Gopalaswami was ignored with Sonia and Sonia Congress contempt by this shaky and ever shakeable duo of Election Commissioners.  By denying the Fundamental Right of a Personal Hearing to Rajan, these 2 Officers behaved like Dictators, displaying all the vagaries of an Oriental Potentate.

c) The Belgian Government had given a letter to the effect that Grand Officer of the Order of Leopold conferred upon Sonia Gandhi was in the nature of a Decoration and not Title. Shri.Gopalaswami rightly took the view that the Belgian Government is an ‘Interested Party’ in this Case and therefore it was necessary in the larger Cause of Public Interest and enforcement of equitable justice that a Communication should be sent to the Belgian Government, seeking a clarification from them regarding the Official Difference between a TITLE and a DECORATION. This absolutely objective advice was ignored by the 2 Fellow Election Commissioners on the ground that making such a reference to the Belgian Government will adversely affect the Friendly and Fraternal Diplomatic Relations between Belgium and India!! According to informed Public Opinion (quite distinct from the partisan, prejudiced and Sonia-obliging Opinion of the Duo in question!) these 2 Fellow Election Commissioners were more interested in keeping their subterranean diplomatic political contacts with the Firangi Memsahib intact and safe for the advancement of their own shady career interests than upholding the Cause of Public Interest or the Supremacy of the Indian Constitution!

I wish to pay my tribute to Shri Gopalaswami, Former Chief Election Commissioner, for having given a courageous Opinion to uphold the Public Interest and the Letter and Spirit of the Indian Constitution, unmindful of the political machinations of the Firangi Memsahib conducted through her chosen favourites in the Election Commission of India. The best tribute I can pay to him will be in the words of Lord Moulton, one of the greatest of British Judges, uttered in 1924:

“There are three great domains of Human Action. First comes the domain of Positive Law, where our actions are prescribed by laws bind­ing upon us which must be obeyed. Next comes the domain of Free Choice, which includes all those actions as to which we claim and enjoy complete freedom. But between these two there is a third large and important domain in which there rules neither Positive Law nor Absolute Freedom. In that domain there is no law which inexorably determines our course of action, and yet we feel that we are not free to choose as we would. The degree of this sense of a lack of complete freedom in this domain varies in every case. It grades from a consciousness of a Duty nearly as strong as Positive Law, to a feeling that the matter is all but a question of personal choice. Some might wish to parcel out this domain into separate countries, calling one, for instance, the domain of Duty, another the domain of Public Spirit, another the domain of Good Form; but I prefer to look at it as all one domain, for it has one and the same characteristic throughout—it is the domain of Obedience to the Unenforceable. . . . to my mind the real greatness of a Nation, its true civilization, is measured by the extent of this land Of Obedience to the Unenforceable”.

By giving this historic Opinion, Shri.Gopalaswami has offered his fervent salutations to the LAND OF OBEDIENCE TO THE UNENFORCEABLE. In my view, he has given his independent Opinion with an Olympian Detachment, with due regard to the Provisions of Law, Articles of the Indian Constitution in Letter and Spirit and above all balanced concern for technical and administrative necessities. HIS OPINION HAS THE CHARACTER OF JUSICE AND LAWFULLNESS, THE PERFECTION OF HARMONIOUS PROPORTION, THE SUMMIT OF FORENSIC BEAUTY, THE SUBDUED AND QUIET DIGNITY, AND ABOVE ALL THE HEIGHT OF RIGHTEOUS PASSION.

I HAVE GREAT PLEASURE IN PRESENTING BELOW THE FULL TEXT OF THIS HISTORIC OPINION GIVEN BY SHRI.GOPALASWAMI ON 19-1-2009

OPINION

Reference Case No. 10 of 2007

[Reference from the President under Article 103(2) of the Constitution of India]

In re: Alleged disqualification of Smt. Sonia Gandhi

, Member of Parliament (Lok Sabha) under Article 102 (1)(d) of the Constitution of India.

OPINION

The President of India made a reference to the Commission on June 25, 2007, seeking its opinion under Article 103 (2) of the Constitution, on a petition dated May 7, 2007, submitted by Shri P. Rajan, Convener, Yogam’19, Cochin, Kerala, alleging that Smt. Sonia Gandhi, Member of Parliament, by accepting the title of ‘Grand Officer of the Order of Leopold’ from the Government of Belgium on November 11, 2006, incurred disqualification under clause (d) of Article 102(1) of the Constitution.  It may be noted in this case subsequently a notice was issued to Smt. Sonia Gandhi on February 15, 2008 seeking her reply and a notice was also issued to the Ministry of External Affairs, Government of India seeking certain information.  Further, the reply of the Respondent and the information received from Ministry of External Affairs were sent to the Petitioner seeking his comments.  Though in my view some further inquiries were still needed, my learned colleague Commissioners came to the conclusion that the matter was ready for the Commissioners to express their opinions.

2.     I have since had the privilege of perusing the opinion given by my two learned fellow Commissioners on the question of alleged disqualification of Smt. Sonia Gandhi (Respondent) referred to the Commission by the President of India.  I am not able to persuade myself to agree with the findings recorded, and the ultimate opinion given, by my learned colleagues that the respondent has not incurred disqualification under Article 102(1)(d) of the Constitution of India for having accepted the ‘Grand Officer of the Order of Leopold’ from the Government of Belgium on 11^th November, 2006.  In my view, the enquiry into the question referred to the Commission is not yet complete and so the stage has not been reached where any definite finding can be arrived at and an opinion formulated on the basis of the documents available on record, and also having regard to the fact that the petitioner, Shri P. Rajan, and for that matter the Respondent too have not been given a personal hearing as prayed for by them. 

3.     I set down hereinbelow the reasons for my above view.

4.     The facts of the case have been explained with sufficient details in paras 2 to 12 of the opinion given by my learned colleagues, and I need not repeat them to avoid prolixity.  As mentioned in para 13 of the said opinion, the case of the petitioner is essentially based on the following contentions:-

i.                               That “Grand Officier de l’Ordre de Leopold” conferred on Smt. Sonia Gandhi on 11^th November 2006, was a title;

ii.                            That by accepting the ‘title’ the respondent violated the provisions of Article 18(2) of the Constitution of India;

iii.                          That by accepting the said ‘title’, Smt. Sonia Gandhi was under acknowledgement of allegiance to Belgium in view of the provisions of the statute of the Association of Order of Leopold that the Association displays eternal devotion to Belgium and its monarchy, and hence she is liable to be disqualified under Article 102(1)(d) of the Constitution of India.

5.1    Under Article 102(1) (d) of the Constitution, accepting any ‘title’ from a foreign State is not by itself as one of the listed disqualifications. The disqualification contemplated under the said Article 102(1)(d) is on account of being under acknowledgement of allegiance or adherence to a foreign State. The disqualification under this Article is not attracted merely on account of receiving any award or decoration. Therefore, in a petition of this nature invoking this clause, it has to be shown that there is an element of allegiance or adherence on the part of the recipient to the country conferring such award or decoration or even a title. As noted above, on the ground that the petitioner has not come up with any clinching evidence to back his claim, my two learned colleague Commissioners propose to reject the contention of the petitioner without any further inquiry. 

5.2    However, in reference cases under Article 103(2) of the Constitution, when a petition is referred to the Commission for its opinion, the Commission has to make all possible and reasonable endeavours to obtain relevant facts and documents from the sources which may possesses information pertinent to the issues raised in the petition. This is a bounden duty cast on the Commission because the Commission’s recommendation is binding on the President and therefore the Commission should leave no stone unturned in its efforts to get at the truth, and lest it be seen as wanting in due diligence leading to its binding recommendation resulting in any miscarriage of justice.  It is in keeping with this principle that the Commission had asked the Ministry of External Affairs to furnish relevant facts and documents related to the conferring of the honour of ‘Grand Officer of the Order of Leopold’ on the respondent, apart from asking the respondent to file her written statement. While supplying the copies of the papers furnished by the Ministry of External Affairs, the petitioner was given yet another opportunity to furnish any document to buttress his claim, in the light of the facts brought out in the documents submitted by the Ministry and in the written statement of the respondent. The petitioner in reply repeated his claim and further asked for a personal hearing to present his case which however has been denied to him. 

6.     At this juncture it is necessary to throw light on the very tortuous course this entire proceedings went through before the Commission.  The Commission has considered in the last 3 years more than 250 petitions under the office of profit category – petitions referred to it by the Governors of many States and by the President of India.  Barring a few cases, where the allegation of holding an office of profit was found ex facie incorrect and so the matter was closed, issue of notice to the Respondent was quick and almost automatic in all other cases.  There was no case, barring this one, in which the issue of notice to elicit the views of the Respondent went through innumerable vicissitudes.  In the instant case, the notice proposed to be issued to elicit the views of the Respondent was first agreed upon, but later retracted.  It was agreed to call for a copy of the citation, if any, given by the Belgian Government to the Respondent, not from the Respondent but from a source other than the Respondent, namely, the Ministry of External Affairs, Government of India.  One of the learned Commissioners even spoke to the Foreign Secretary, Ministry of External Affairs, Government of India seeking all relevant papers, an extraordinary step by any standards for a judge in a quasi-judicial proceeding and an action that could be construed as acting on behalf of the Respondent.

7.     When the proceedings were thus getting delayed even on the preliminary question of issue of notice to elicit the views of the Respondent, it became imperative to ask for the final written opinions of all Commissioners on this issue.  The result was a 2-1 decision with a learned Commissioner who had earlier opposed the issue of notice, now favouring the same.  Commission also decided to write a letter officially to the Ministry of External Affairs seeking information officially.  It thus took 8 months to decide the question of issuing notice just for seeking Respondent’s views.

8.     In reply to the notice, Respondent claimed that Award was a decoration and not a title and also refuted the suggestion that the Awardee became a member of the Association as alleged by the Petitioner.  The Ministry of External Affairs furnished copies of correspondence it had with the award granting Government’s Foreign Affairs Ministry and also furnished copies of Note verbale.  Neither the Respondent produced any citation nor the Ministry of External Affairs furnished it.  It is normally seen that whenever Awards, decorations etc. are conferred, there is a practice of embellishing it with a citation.  When it was suggested to obtain a copy of the citation at least from the Ministry of External Affairs if not the Respondent, again there was this extraordinary spectacle of one learned Commissioner first agreeing to it and later on going back on it.  Further, when it was suggested that since the ‘Grand Officer of the Order of Leopold’ seemed to be conferred as a Title too, the Commission should obtain a clarification from the Belgian Government’s Foreign Ministry/Embassy as to under what circumstances it became a title and when it takes the nature of a mere decoration, the suggestion was turned down on the ground that it would lead to a diplomatic embarrassment.

9.     A look at the document available in the internet called Order of Precedence of Belgium Orders, Decorations and Medals, the ‘Grand Officer of the Order of Leopold’ ranks fairly high at serial No.6.  There is a long list of those where the words such as ‘Order of Leopold’, ‘Order of the Crown’, ‘Order of the African Star’ are used to describe the awards.  There are also some where the word ‘Order’ does not find a place and the award is described as ‘Medal’ or ‘Decoration’.  Even for a lay person it would be evident that those awards where the word ‘Order’ occurs would be different from the ones where the word does not occur.  The word ‘Order’ indicates a quality different from the one where the word ‘decoration’ or ‘medal’ occurs.  When therefore a claim is made that the award ‘Grand Officer of the Order of Leopold’ given in this instance is merely a decoration, it would be prudent to find out whether the ‘Grand Officer of the Order of Leopold’ is also awarded as a Title also and if the answer is in the affirmative, then to obtain the information as to under what circumstances, it is a ‘Title’ and when it becomes a mere ‘decoration’, as is claimed in this case on behalf of the Respondent.

10.    In the instant case the Petitioner claims that it is a Title and the Respondent and the MEA and the Belgian Government claim that it is a decoration.  The attempt to get to know the difference between the ‘Title’ and the ‘decoration’, when both go by the same name, was thwarted.  The citation given in this case could have thrown light on this issue, but the attempt to get the citation, assuming there was one, was stymied.  The least that could have been done was to provide a personal hearing to the Petitioner to prove his claim that it was a Title which involved owing of allegiance.  That opportunity is denied to him and it is claimed that the essentials of natural justice is not violated despite this refusal.  In sum and substance, therefore, neither the Commission is attempting to find the truth nor is prepared to permit the Petitioner to have his say.

11.    In the instant case the Respondent, the MEA and the Belgian Authorities have claimed that what was conferred was a decoration and not a Title and the justification for the same is the letter of the Belgian Authorities describing the award as a decoration and not a title.  Decision on the nature of the award is to be taken by the Election Commission in light of all information provided by the two parties the Petitioner and the Respondent as well as obtained by the Commission not on the mere say of any other authority.  Attention has to be drawn at this juncture to the occasion when the Commission had to consider the issue of allegiance/adherence to a foreign state in a case it considered in the past, namely, Reference Case No.1 of 1981, on the question of disqualification of Shri K.S.G. Haja Shareef, then Member of Madras Legislative Assembly, on account of his appointment as honorary Consul General of Turkey in India at Madras.  There are certain parallels which can be drawn from that case.  In that case replying to the allegation of allegiance/adherence to a foreign state by his client, Shri Anil Divan his senior counsel made the submission that ‘the best evidence for ascertaining whether Shri Shareef had acknowledged allegiance or adherence to the Turkish Government could come either from the Government of India or the Turkish Government and that the letter from the Turkish Embassy produced before the Commission clearly stated that Shri Shareef had not acknowledged adherence or allegiance to that Government’.  On this submission the then CEC had this to observe: ‘I am not persuaded to accept this argument.  In interpreting the provisions of article 191(1)(d), I have to apply my mind objectively on the basis of the various facts disclosed and the views expressed in the letter from the Turkish Embassy, an interested party, are not at all binding on me’. (emphasis supplied).  In the instant matter similar to that case, the Belgian Authorities, the MEA and the Respondent are all interested parties in so far as the first one is the awarding government, the second had recommended the acceptance of the award and third is the recipient of the award.  It stands to reason therefore, that instead of merely going by their stated positions, the Commission applied its independent mind to unraveling the correct position.  It was in this context that the undersigned had suggested the seeking of a clarification whether ‘Grand Officer of the Order of Leopold’ was also awarded as a ‘Title’ and if so, what distinguished that award as a ‘Title’ and as a mere ‘decoration’.  My learned fellow Commissioners declined to agree with my suggestion to raise the issue with the MEA and the Belgian Authorities.  It could be, that the citation in both cases i.e. when it is awarded as ‘Title’ and when it is awarded as ‘decoration’, is different; if so, my suggestion to get a copy of the citation also did not find favour with my learned fellow Commissioners.  In fact, the idea of getting a copy of the citation was in the first instance suggested by my learned fellow Commissioners themselves, but later when it was suggested to get it after finding that neither the Respondent nor the Belgian Authorities provided a copy of the citation, while one of the learned Commissioners agreed at first that the Commission should seek a copy of the citation from the MEA, he later changed his view and expressed himself against obtaining it after finding that the learned third Commissioner had expressed himself against it.

12.    The Commission’s own recent record in the cases that came before it has a different story to tell.  In the Office of Profit case against Shri Azam Khan, MLA of U.P. who was also Chairman of U.P. Jal Nigam (Reference Case No.2(G) of 2005) the Commission, not being satisfied with the replies given by the respondent and even by the Chief Secretary to the Govt. of U.P. and the M.D. of the Jal Nigam, asked its own officers to go and seize certain records of the Jal Nigam in order to ferret out the truth.  In the case filed by Shri Mukul Roy (Reference Case No.3 of 2006) against some MLAs and MPs from West Bengal, who were allegedly occupying certain offices of profit, firstly the petitioner could not get all the details of dates of appointment to the offices, information regarding any salaries, allowances, perks etc. allowed to them.  When the Commission asked for that information from the Government of West Bengal, that Government instead produced the opinion of their Advocate General (A.G.) that the persons concerned were not occupying any offices of profit. The Commission not only refused to accept that opinion of the A.G. but in fact expressed its unhappiness to the state government on this unsolicited advice.  Further, the Commission insisted that the Government of West Bengal provide the facts asked for by it so that it could on its own arrive at the truth.  In contrast in the instant case there is unquestioning acceptance of the statement of the MEA and the Belgian Embassy that the award was merely a decoration, even in the face of the fact that titles seem to be granted by that Government with the same nomenclature. Instead of accepting the statement at face value the matter should have been progressed to get at the truth by further diligent inquiry.  The reluctance on the part of my learned fellow Commissioners and consequent failure to carry out further inquiry, in my view, will open the Commission to the charge of not being fair, consistent or neutral because it is apparent that an exception is being made only in this case.

13.    The Petitioner has been consistently claiming that the ‘Grand Officer of the Order of Leopold’ is a title and wants to be heard personally to put across his views on this issue.  He also seems to rely on the Respondent having become a member of the Association of the Order of Leopold which has been categorically denied by the Respondent.  It could be, that membership of the Association may not be automatic but has to be sought.  It may be mentioned here that the material provided by the Ministry of External Affairs GOI, barring the ‘Note verbale’ of the Belgian Ministry of Foreign Affairs, is obtained from the Internet, just the same way that the Petitioner has done.  Barring a claim that the award was a decoration, no other information forthcame from the Government of Belgium.  Notwithstanding that, to have implicit faith on the say of one, viz., the Ministry of External Affairs and total rejection of the say of another, viz., the Petitioner, when the material supplied and relied upon by both is the same, will open the Commission to the charge of bias in favour of one party.  It is precisely for this reason that the Commission should, by obtaining further information, have the matter placed beyond reasonable doubt.  That is the reason why the obtaining of the citation and the clarification is deemed desirable because from one and the same set of papers there is one claim that the award was a ‘title’ while another claim that it was only a ‘decoration’.  An attempt is made to give credence to the claim that the award is only a ‘decoration’ merely on the ground that in the correspondence the Ministry of External Affairs had with the Belgian Embassy prior to the actual grant of the award, it was described as a ‘decoration’ and not a ‘title’ and in subsequent correspondence also it is described only as a ‘decoration’.  But mere repetition is no justification.  It is relevant to recall here the case of Shri Haja Shareef (supra) and to draw attention to the fact that his appointment as Consul General at that time was done with the approval of the Government of India (See P.2 and P.10 of Ref. Case No.1 of 1981) but the then CEC who was petitioned to inquire into that matter for possible violation of Article 191(1)(d) [analogous to Article 102(1)(d)] did not consider the Government of India’s concurrence for the appointment as a given proposition to be taken as implicitly true and beyond question because, it is the Election Commission which has to decide, and its adjudicatory function cannot be abdicated or assigned to any one else.   To emphasize, the then CEC did not want to consider either the Turkish Government or the Indian Ministry of External Affairs as infallible and without being influenced by their claim, went ahead with his own inquiry into the facts of the case and arrived at his own opinion which ultimately was contrary to the assertions of both the Governments. The same ratio applies here in this case and this matter has to be inquired into with an open mind, without any preconceived notion that implicit reliance should be placed on the word of the Belgian Foreign Ministry or that of the Ministry of External Affiairs of the Government of India.

14.    In sum and substance therefore, the question whether the award of the ‘Grand Officer of the Order of Leopold’ conferred on the Respondent by the Belgian Government is a ‘Title’ as contended by the Petitioner, or it is only a ‘decoration’ as claimed by the Respondent, is wide open for want of information of the citation attached to the award and for want of answer to the vital question whether the award ‘Grand Officer of the Order of Leopold’ is conferred on anybody as a ‘title’ or is never conferred as a ‘title’ and, if it is conferred as a ‘title’, then what distinguishes its being awarded as a ‘title’ and awarded as a ‘decoration’. Only that would help to get an answer to the question whether there was any adherence/allegiance, even if unintended, as it transpired in the case of Shri Haja Shareef’s appointment as Consul General of the Government of Turkey.

15.    Regarding the allegation of the Petitioner of violation of Article 18(2) of the Constitution by the Respondent, in light of the fact that vital information is not available and attempt to procure it has been opposed by my two learned colleague Commissioners, I am unable to come to any conclusion on this allegation.  Further while by itself a violation of Article 18(2) may not have any effect in regard to the issue of disqualification under Article 102(1(d), the information regarding the important question of the contents of the citation and the answer to the question of what distinguishes an award with same name being a ‘title’ or a ‘decoration’, may be a relevant factor to decide whether the acceptance of this award, irrespective of whatever name it was called, has any implication with reference to the disqualification cited in Article 102(1)(d).

16.1  The Petitioner has alleged that the Respondent has incurred the disqualification under Article 102(1)(d) by accepting the award which in his view is a title that involves owing allegiance.  As mentioned earlier the question remains open for want of access to what I consider as important materials, relevant to decide the issue.  But be that as it may, it is necessary to point out here that in the case of Shri Haja Shareef referred to earlier, while the allegation of allegiance was held as not proved, the Commission (the then CEC) came to the conclusion from the circumstances of the case that there was adherence.  It is relevant to quote from the opinion tendered in that case

        “It is significant that  Article 191(1)(d) does not restrict, limit or qualify the concept of adherence.  By the use of the expression ‘any acknowledgement’, the clause allows wider amplitude and scope for its application to any case of adherence to a foreign country.  Such adherence may be nominal, occasional, complete or full.  In the present case, even if it is established in a single instance that Shri Haja Shareef is required to adhere to Turkish Government in the matter of the application of the law, rules, regulations etc. of Turkey or in carrying out the directions issued by the Turkish Government from time to time in the discharge of his duties and functions as the Honorary Consul General of that country the test of acknowledgement of adherence would be satisfied”. (emphasis supplied)

                                               

        “The expression ‘adherence’ is referable to a person who follows and maintains loyalty, steadily or consistently, to a person, group or State.  On being appointed as a Consul, the petitioner has agreed to bind himself to observe the conditions stipulated by the Government of Turkey, to the extent to which he had been appointed to carry out his functions”.

16.2  It is noteworthy that in the Haja Shareef case the Commission after its own inquiry came to the suo motu conclusion that while ‘allegiance’ was not established, elements of ‘adherence’, which decidedly is a lighter infringement, were present though that was not the issue raised by the Petitioner before the Commission in that case.  It is necessary to draw attention here to that issue because it points to the diligence which is required of the Commission when dealing with an issue brought up before it under Article 102(1)(d) (or Article 191(1)(d) as the case may be).  That case is a precedent to be followed, and there is no reason to depart from it.

17.    An attempt has been made to show that the speeches made, during the conferring of the ‘decoration’ by the Prime Minister of Belgium and by the Respondent, do not suggest any showing of allegiance or adherence.  But speeches on ceremonial occasions are not decisive.  They are in the nature of showing social grace and cannot take the place of the citation, which is the document for record.  Since raising a specific request for a copy of the citation and obtaining clarification as to when the Grand Officer of the Order of Leopold is deemed a ‘Title’ and when a mere ‘decoration’, have been denied, I cannot, based on the speeches, conclude whether elements of allegiance or adherence are absent or present. It is noteworthy that in the reference case of Shri Haja Shareef (supra) also there was no overt owing of allegiance/adherence but it was inferred from the circumstances of the case when the matter was examined in depth by the then Chief Election Commissioner.

18.    The Respondent has also pointed out in her reply that in the past ‘significant foreign honours’ have been conferred on Prime Ministers and eminent citizens of this country and what more, the former Prime Minister Shri Morarji Desai was conferred an honour by Pakistan ‘a former enemy country’. I am of the view that those instances are irrelevant here because firstly those awards are not the issue in this reference case and no such issue was involved for decision therein. Secondly, the issue agitated in this case is not the mere fact of a foreign country bestowing an award but the question whether there is an element of allegiance or adherence to a foreign country and that has to be adjudicated based on the facts of this case and not on the basis that in the past other Indian citizens have been conferred foreign honours.

19.    Now coming to the issue of grant of personal hearing asked for by the Petitioner, in support of their view that the personal hearing in the instant case is not necessary, my learned fellow Commissioners have relied on the decisions of the Supreme Court in Carborandum Universal Limited Vs. Central Board of Direct Taxes, New Delhi (1989) 2 Supp SCC 462, State of Maharashtra Vs. Lok Shikshan Sansatha and Others (1971) 2 SCC 410, Baldev Singh and Others Vs. State of Himachal Pradesh and Others, (1987) 2 SCC 510, Saij Gram Panchayat Vs. State of Gujarat and Others AIR 1999 SC 826, and Jagjit Singh Vs. State of Haryana AIR 2007 SC 590. 

20.1  I have carefully analyzed those judgements of the Supreme Court and, in my view, the same are distinguishable from the instant case, both on the question of fact and law.  In the first referred case of Carborandum Universal Limited, my learned fellow Commissioners have relied on the observation in para (6) of the judgement “Personal hearing in every situation is not necessary and there can be compliance of the requirements of natural justice of hearing when a right to represent is given and the decision is made on a consideration thereof.”  But they seem to have overlooked the general proposition of law laid down by the Supreme Court, in the opening portion of that very same para (6) of that very judgement “The legal position is that where a statutory provision does not exclude natural justice, the requirement of affording an opportunity of being heard can be assumed, particularly when the proceedings are quasi-judicial.” (emphasis supplied).  They also do not seem to have taken note of the observation of the Supreme Court in the concluding sentence of that paragraph “Our conclusion is, however, confined to the facts of the case and as and when the question (of giving a hearing) arises in a different situation, the matter may be open to examination.” 

20.2  The reliance placed by my learned colleague Commissioners on the decision of the Supreme Court in the cases of Baldev Singh and Others Vs. State of Himachal Pradesh and Others, and Saij Gram Panchayat Vs. State of Gujarat and Others (Supra), is also not apt in the facts and circumstances of the present case.  The matter involved in those cases was the transfer of certain areas from one administrative unit to another and the question was whether the residents of the areas concerned should have been given a hearing before effecting the said transfer.  That question was entirely different from the question in the instant case, because there firstly the issue was whether the large mass of residents of the affected villages should have been given a hearing, whereas, in the instant case, it is a proceeding confined only between two direct contestants, namely, the Petitioner and Respondent. 

20.3  A further significant difference is that in the Saij Gram Panchayat Vs. State of Gujarat and others (Supra) case, the Court took note of the fact there were long drawn out consultations, exchange of views as well as consideration of objections at an earlier stage in that matter that also led to the issue of a Government Resolution to take care of the question of loss of revenue and therefore the court observed “the appellants cannot complain of any violation of the principles of natural justice in the present case”. So contrary to the opinion of my learned fellow Commissioners that the case of Saij Gram Panchayat Vs. State of Gujarat and others, supports the view that personal hearing is not necessary in complying with the principles of natural justice, that case in reality strikes a blow for the need to adhere to the principles of natural justice by giving a personal hearing.  The case of State of Maharashtra Vs. Lok Shikshan Sansatha and Others (supra), related to the refusal to give grants-in-aid by the government to certain schools based on the recommendations of the District Committees.  I fail to understand how the facts of that case are relevant to the facts of the present case.  Similarly, the case of Jagjit Singh Vs. State of Haryana (Supra) is also distinguishable from the present case both on facts and law. In that case, the petitioner was heard by the Speaker of the Haryana Legislative Assembly before passing the order disqualifying him under the Tenth Schedule to the Constitution and his grievance was that he was not granted opportunity to lead evidence and cross-examine certain persons and that the decision was taken by the Speaker in haste. Here, the facts are totally otherwise and the Petitioner has not been heard at all. 

20.4  In so far as the Commission is concerned, we cannot lose sight of the observations, rather dicta, of the Supreme Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner and Others AIR 1978 SC 851, which pertain to the functioning of the Election Commission as an important constitutional authority in the exclusively allotted domain of elections.  The Supreme Court observed in para (55) that “The Election Commission is an institution of central importance and enjoys far reaching powers and the greater the power to affect others’ rights or liabilities the more necessary the need to hear” (emphasis supplied).  The Supreme Court proceeded to observe in para (61): “Should the cardinal principle of ‘hearing’, as condition for decision making be martyred for the cause of administrative immediacy?  We think not.” (emphasis supplied).  Still further, the Supreme Court observed in para (62) “It is quite on the cards that the Election Commission, if pressed by circumstances, may give a short hearing”.  But I do not find any such immediacy in the instant case justifying the refusal to give personal hearing because of some pressing circumstances.  As I have pointed out elsewhere earlier, it took more than eight months to even take a decision on a preliminary issue whether a notice should go to the Respondent or not. 

20.5  As mentioned above my learned colleague Commissioners have not agreed to consider favourably the request of the Petitioner to grant a personal hearing.  In my view, the facts of this case justify giving a personal hearing to both sides to enable reaching a fair decision. It is noteworthy that the Respondent had also prayed for a personal hearing.  In my view this denial violates the essentials of natural justice.  Our courts have held repeatedly that the rules of natural justice are there to ensure that a decision is arrived at in a just, fair and reasonable manner.  I quote here from different judgements of the Supreme Court of India in order to place this concept in perspective “The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice” (A.K. Kraipak v. Union of India, AIR 1970 SC 150: (1969) 2 SCC 262: (1970) 1 SCR 457), “Natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication to make fairness a creed of life.  It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by act of authority.  It is the bone of healthy Government, recognized from earliest times and not a mystic testament of Judge-made law. (Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851: (1978) 1 SCC 405).  The Courts have held being just and fair is the very essence of the concept of rule of law “The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously” (A.K. Kraipak v. Union of India, Supra).  In the instant case I am of the considered view that the essentials of natural justice have not been observed in letter and spirit in the this case have been vitiated for this reason refusal to grant a personal hearing to the Petitioner, and to the Respondent.  I therefore consider that the proceedings in .

21.    As detailed in the paragraphs above, in the instant reference case while the Petitioner has provided certain material, which though is not complete in all respects to prove his case beyond doubt, has succeeded in requiring an inquiry into the nature of the distinction conferred by the Belgian Government on the Respondent and consequently the issue whether there is allegiance/adherence. The Respondent has made the claim that the distinction viz. Grand Officer of the Order of Leopold conferred on her is no ‘Title’ but only a ‘decoration’ and she has also refuted the suggestion that she owed any allegiance to the foreign Government/State while accepting the award. The award giving Government has claimed that the award is only a decoration and not a ‘Title’. But an ambiguity about this claim remains because there is reason to believe that the same distinction is conferred by that Government as a title too and therefore unless a clarification is available as to what distinguishes the same distinction conferred as a ‘Title’ and as a ‘decoration’, which would also throw light on the issue of any element of allegiance/adherence, seeking information on which has been denied to me by my learned colleague Commissioners, I cannot agree with their conclusion in this case.  The citation, if any, given at the time of conferring the award would have thrown some light on this issue but again I am unable to seek the same as my learned colleague Commissioners have set their face against my suggestion to seek the same after having, at an earlier point of time, themselves suggested it.   By setting its face against getting the additional information it can be said that the Commission has not discharged its duty to get at the truth by seeking all relevant material before rendering a binding opinion.  Thirdly, I consider that the refusal of my two learned colleague Commissioners to grant a personal hearing to the Petitioner is a grave case of non-compliance with the essentials of natural justice which an authority like Election Commission should adhere to when exercising quasi-judicial powers and consequently it has vitiated the entire proceedings.

22.    For the above reasons, I am unable to concur in the opinion recorded in this reference case by my two learned colleague Commissioners. I, therefore return the reference to the President with my observations to the above effect that the inquiry by the Election Commission contemplated under the Constitution could not be made.  

  

( N. GOPALASWAMI )

CHIEF ELECTION COMMISSIONER OF INDIA