GUWAHATI, March 23 � Some circles today tried to create confusion over the whip proposed by the Opposition camp in connection with the March 26 election to the two Rajya Sabha (RS) seats of the State, by circulating a copy of the Supreme Court of India verdict on the Kuldip Nayar vs. Union of India case {(2006) 7 SCC} case. They also circulated copies of a newspaper report on the Election Commission's observation on whips.
But the legal experts here are of the opinion that the observation of the Supreme Court is obiter dicta, that is- not binding as a law directly laid down by the Apex Court. It may not have any legal impact on any election. Moreover, the Election Commission observation on the issue may also be contested, said the
experts.
It needs mention here that the Congress still needs some more votes to get its second preference nominee Silvius Condpan elected to the Upper House. As, the party enjoys the support of 78 legislators as of today. To win, a candidate needs at least 43 votes, going by the present member-strength of the State Assembly.
The Supreme Court verdict said interalia, �The proceedings concerning election under Article 80 are not proceedings of the �House of the Legislature of the State� within the meaning of Article 194�Their participation in the election is only on account of their ex-officio capacity of voters for the election. Thus, the act of casting votes by each of them, which also need not occur with all of them present together or at the same time, is merely exercise of franchise and not proceedings of the legislature.�
The newspaper report on the Election Commission observation on whip stated interalia, �Election Commissioner GVG Krishnamurty told The Indian Express,� �But a whip is a threat, implying that if a member does not heed the party whip he can be liable for disciplinary action including expulsion from the party.�
But the elections referred to here in the report are those of the President and Vice President of the country governed by The Presidential and Vice-Presidential Elections Act, 1952, which unambiguously prohibits the use of �undue influence or bribery,� making these offences punishable under law, said the newspaper report itself.
When contacted for comments, senior jurist Pachu Gopal Baruah, also a former Advocate General of the State, told this newspaper that the Supreme Court verdict was made in a different context. It was on a petition on constituency of a citizen for RS election and the freedom of speech.
The observation made by the Apex Court is obiter dicta. It is not binding as a law directly laid down by the Apex Court.
The citing of the case by a political party is hence confusing. It may not have any legal impact on any election, he maintained. He also said that the reported observation made by Election Commissioner GVG Krishnamurty on whip may also be contested.
