RECENTLY, THE Supreme Court of India (SCoI) dismissed a case, Special Leave Petition or SLP(C) 13013/2022, Vishwanath Pratap Singh vs. Election Commission of India, by a "judgement" dated September 9, 2022, by the bench of Justices Hemant Gupta & Sudhanshu Dhulia, (See judgement at Appendix), where the petitioner contested restrictions on his alleged right to put himself up as a candidate to contest an election as a people's representative in a legislature, without the need to fulfill the statutory requirement of a proposer, as being an alleged violation of his "fundamental rights." The SCoI dismissed his petition, ruling that there is no "fundamental right" to contest elections, that this is merely a "statutory right."
«A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.»
THIS INTERPRETATION IS FALSE. There is no "Anomaly." There is only a very basic, and very shameful, inability to grasp fundamental principles of law, justice and equity.
The SCoI stated that the "Right to Candidature" is:
1. Not a Fundamental Right;
2. Not a Common Law Right;
3. Not a Basic Right (Claim made by DNAIndia.com, a press entity, not the SCoI);
4. But it is only a "Statutory right."
A "Statutory Right" is a right conferred by Statutes. A Statute is a particular or incidental law.
A Statutory right is not a true right, but is, by definition, in the nature of a favor, and as it can be granted, it can equally be withdrawn, rescinded.
IF THE SCOI HAD restricted itself to upholding the legal requirement of a proposer for a candidate, it would have been an uncontroversial decision.
As against Vishwanath Pratap Singh, I can say with the utmost confidence that, a rejection of his candidature / nomination form, in the absence of a proposer, as duly required by law, was legal, proper, just, and did not, in any way, infringe upon his "rights of free speech, expression and personal liberty."
Furthermore, "rights of free speech, expression and personal liberty" have absolutely no natural or unincidental relevance to any citizen's right to candidature.
However, the SCoI exceeded its authority, it's remit, by striking at a Supreme right, and by extension, striking down democracy itself.
I am not a votary of "Democracy," which is a thin veneer for Ochlocracy, and, therefore, for Cacocracy. I am not a votary of "Parliamentarianism," or more properly, for the notion that "rights originate from the people as the Supreme Source," which is a grave heresy.
I believe that rights originate from, and flow from, God as the Supreme Source, and as long as that central point is upheld, and subject to that same principle, the niceties of whether a particular polity chooses "Democracy," or "Monarchy," or any other form of government, is their particular choice to make, and even to vary, as and when they see fit.
A Democracy is, by definition, government that has its power and authority by delegation from the people.
In a Democracy, any Democracy, as the government belongs to the people at large, by means of delegation, then the right of every "citizen" to put himself or herself up for election, as a candidate, equally with the freedom to exercise whom to propose as a candidate, and equally with the right to participate in free contests of candidates for election to legislatures, is not a "fundamental right," is not a "statutory right," but it is a Natural Law Right, an Essential Right, and a Supreme Right, a class of rights that is superior to "Fundamental Rights."
To officially deny, that each and every citizen has the Natural Right, within reasonable rules, to canvass themselves as candidates, to stand as candidates in elections, is to officially certify that that state or polity is not a Democracy, that citizens are not citizens, but are serfs.
Natural rights, fundamental rights and all other rights can certainly be regulated by statutory laws, by statutes. That does not make, or degrade those rights, or conflate those rights somehow, magically, into, or with, merely "statutory rights."
It is a fundamental inference, that if the right to candidature is merely a statutory right, then that state or polity is not a Democracy by any means.
THIS RISIBLE JUDGEMENT is not, for me, a surprise, however. I have been following the Karnataka Hijab Appeal to the Supreme Court of India, before a bench including Hemant Gupta, when he first came to my attention, and his utterances and stances in the Karnataka Hijab Appeal and in other concurrent cases, shows him to be supremely biased, prejudiced, indeed, even bigoted; I see that Mr Gupta has the temperament of a street tough, more particularly, of what is called a "Cow vigilant," or "Gau Rakshak," a temperament entirely unfitted for a judge. Therefore, this Risible "judgement," In Re Vishwanath Pratap Singh, came to me as no surprise at all.
THIS RISIBLE JUDGEMENT, and the response, or lack of response, to it, is telling:
1. We have the "Honorable Supreme Court of India," openly Gangrape India, gangrape the pretended "Indian Democracy," blatantly, and in broad daylight, and there is no public outrage, no outpourings of outraged citizenry into the streets, in the face of a crime before which, the horrendous and monstrous "Nirbhaya" gangrape & murder is, by comparison, but a trifle! The peoples of India hit the streets en masse, or nearly en masse, in response to the "Nirbhaya" Gangrape-Murder, against CAA, and against Modi's Milton Friedmanomics "Farm Laws," but each of these pale into insignificance before the Gangrape & Murder of "Indian Democracy," by the "Honorable" "Justices" of the Supreme Court of Modia In Re Vishwanath Pratap Singh!
2. This Crime, and the utter lack of outrage against it, is testament to the dulling and subsidence of resistance against the Fraudster, Robber, and Tinpot Dictator of India, illegitimate "Prime Minister" Narendra Modi, and seals the fact that the "Supreme Court of India" is now nothing but the "Supreme Court of Modia," all pretences cast away, outcloseted in all its naked glory!
LUCIO MASCARENHAS
APPENDIX
«The challenge in the present special leave petition is to an order passed by the High Court of Delhi on June 10, 2022 whereby a writ petition filed by the petitioner claiming a mandamus to decide the candidature of the petitioner to file his nomination for Rajya Sabha Elections 2022, was dismissed.
«The petitioner filed a writ petition before the Delhi High Court raising a grievance that a notification for election to the Rajya Sabha was issued on May 12, 2022 to fill up the seats of members retiring from June 21, 2022 to August 1, 2022. The last date for submission of the nomination was May 31, 2022. The petitioner collected the nomination form but was not allowed to file his nomination without a proper proposer proposing his name. The petitioner sought (to register) his candidature without (the need for a) proposer, which was not accepted, and, therefore, he claims that his fundamental right of free speech and expression and right to personal liberty have been infringed. We find that the writ petition before the High Court was entirely misconceived and so is the present special leave petition.
«The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.
«In Javed v. State of Haryana, (2003) 8 SCC 369, this Court held that:-
«"22. The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in a Panchayat may be said to be a constitutional right — a right originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. There is nothing wrong with the same statute which confers the right to contest an election also providing for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.
«23. Reiterating the law laid down in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [AIR 1952 SC 64 : 1952 SCR 218] and Jagan Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954 SCR 892] this Court held in Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691] : (SCC p. 696, para 8) "8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation."
«In a later judgment reported as Rajbala v. State of Haryana, (2016) 2 SCC 445, this Court held that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by the Parliament. It was held as under:-
«39. Insofar as the Rajya Sabha and the Legislative Councils are concerned, such rights are subject to comparatively greater restrictions imposed by or under the Constitution. The right to vote at an election to the Lok Sabha or the Legislative Assembly can only be subjected to restrictions specified in Article 326. It must be remembered that under Article 326 the authority to restrict the right to vote can be exercised by the 'appropriate legislature.' The right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law made by Parliament."
«Thus, the petitioner did not have any right to contest election to the Rajya Sabha in terms of the laws made by Parliament. The Representation of People Act, 1950, read with the Conduct of Elections Rules, 1961, has contemplated the name of a candidate to be proposed while filling the nomination form.
«Therefore, an individual cannot claim that he has a right to contest election and that the said stipulation violates his fundamental rights, so as to file his nomination without any proposer as is required under the Act.
«In view of the said fact, we dismiss the present special leave petition. Pending application(s), if any, stands disposed of.»
REFERENCES
3. https://www.livelaw.in/top-stories/supreme-court-right-to-contest-not-fundamental-right-statutory-vishwanath-pratap-singh-vs-election-commission-of-india-2022-livelaw-sc-758-209159
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