June 14, 2015
https://www.facebook.com/mehtarahulc/posts/10152844833311922
https://www.facebook.com/mehtarahulc/posts/10152844833311922
Pre-election affidavits with facts as values ; pre-election affidavits with promises /commitments is waste of time
.
Many groups are asking election candidates to give affidavits over and above affidavits given to election commission. Many statements in affidavits are waste of time.
.
The statements in affidavits are of two types --- statements of facts and promises / commitments.
.
eg1. Say I put on my affidavit that I am B Tech pass. Then such statement is called as statement of fact. Now, if I am NOT B Tech pass , then any voter of India can file a case against me and the court will admit the case, and can fine me or even imprison me for 6 months.
.
eg2 . Say I put on affidavit that after election, I wont join Congress or BJP or AAP, then such statement is NOT a statement of fact. It is a promise or commitment. And after election , after winning, I join Congress or BJP or AAP , then no court will admit case against me nor would fine me !!!
.
eg3. Say I put on affidavit that after election, if I win, I will ensure that my area gets a new road or new gutterline etc within 2 years . This is NOT a statement of fact, It is a promise or commitment. And say 2 years after election, no road and no gutterline comes,. Then also, no court will admit case against me nor would fine me !!!
.
WHY?
.
A statement of fact , if wrong, can be challenged by anyone.
.
But a broken promise by candidate can be challenged by X ONLY if the candidate has signed a CONTRACT with X. And for the contract to be valid, payment of at least Re 1 is must. A contract with NO payment is void ab-initio. Pls google on "contract act". .
.
Also, promise made to public for no payment does NOT constitute a contract.
.
Finally, fine or punishments are decided by contract. eg Say an independent candidate makes a promise that after winning election, he wont join congress. And say he joins congress. Then only voters who had signed on the contract and paid Re 1 can sue him !! And punishment will be as per the contract. If contract had no punishment clause, then court can create a punishment clause out of thin air and enforce it.
.
Also, any decision that court cant legally force cannot be condition in contract, And if they are, then they are void. Now court cant order a person not to join cpongress party or leave congress party. So a promise that "I wont join congress" becomes void ab-initio !!!
.
To explain this, let me give separate example. Say a female F promises male M , that if M gives Rs X then F would marry M. Say M gives the money and later F refuses to marry. Then court will simply void the case. Because court cant legally order F to marry M. The court cant even ask F to return the money because now giving money becomes gift and court cant order anyone to return the gift !!!.
.
So there is NO law , except anti-defection law, which governs free will of candidate after election. So all promises made by him , even if he breaks, become no point of contest in courts.
.
Further, promises made on behalf of third party , even if broken , doesnt not make case if it was public knowledge that candidate doesnt have power to bring this promise. So making road or gutter is power of executive i.e. Mayor / CM and NOT of candidate. And it is PUBLIC KNOWLEDGE. So if voter accepts such promise from a candidate, then voter himself is at fault. And so court will favor candidate.
.
IOW, delay problem aside, the very idea of taking promises on affidavits from election candidate is LEGALLY flawed.
.
Solution?
.
There is NO short-cut to Right to Recall.
.
If candidate willfully breaks promises, then expel him.
.
And what to do till there is NO RTR?
.
Well, try to bring RTR. But pls dont waste time on non-solutions like pre-election affidavits of promises.
.
.
Many groups are asking election candidates to give affidavits over and above affidavits given to election commission. Many statements in affidavits are waste of time.
.
The statements in affidavits are of two types --- statements of facts and promises / commitments.
.
eg1. Say I put on my affidavit that I am B Tech pass. Then such statement is called as statement of fact. Now, if I am NOT B Tech pass , then any voter of India can file a case against me and the court will admit the case, and can fine me or even imprison me for 6 months.
.
eg2 . Say I put on affidavit that after election, I wont join Congress or BJP or AAP, then such statement is NOT a statement of fact. It is a promise or commitment. And after election , after winning, I join Congress or BJP or AAP , then no court will admit case against me nor would fine me !!!
.
eg3. Say I put on affidavit that after election, if I win, I will ensure that my area gets a new road or new gutterline etc within 2 years . This is NOT a statement of fact, It is a promise or commitment. And say 2 years after election, no road and no gutterline comes,. Then also, no court will admit case against me nor would fine me !!!
.
WHY?
.
A statement of fact , if wrong, can be challenged by anyone.
.
But a broken promise by candidate can be challenged by X ONLY if the candidate has signed a CONTRACT with X. And for the contract to be valid, payment of at least Re 1 is must. A contract with NO payment is void ab-initio. Pls google on "contract act". .
.
Also, promise made to public for no payment does NOT constitute a contract.
.
Finally, fine or punishments are decided by contract. eg Say an independent candidate makes a promise that after winning election, he wont join congress. And say he joins congress. Then only voters who had signed on the contract and paid Re 1 can sue him !! And punishment will be as per the contract. If contract had no punishment clause, then court can create a punishment clause out of thin air and enforce it.
.
Also, any decision that court cant legally force cannot be condition in contract, And if they are, then they are void. Now court cant order a person not to join cpongress party or leave congress party. So a promise that "I wont join congress" becomes void ab-initio !!!
.
To explain this, let me give separate example. Say a female F promises male M , that if M gives Rs X then F would marry M. Say M gives the money and later F refuses to marry. Then court will simply void the case. Because court cant legally order F to marry M. The court cant even ask F to return the money because now giving money becomes gift and court cant order anyone to return the gift !!!.
.
So there is NO law , except anti-defection law, which governs free will of candidate after election. So all promises made by him , even if he breaks, become no point of contest in courts.
.
Further, promises made on behalf of third party , even if broken , doesnt not make case if it was public knowledge that candidate doesnt have power to bring this promise. So making road or gutter is power of executive i.e. Mayor / CM and NOT of candidate. And it is PUBLIC KNOWLEDGE. So if voter accepts such promise from a candidate, then voter himself is at fault. And so court will favor candidate.
.
IOW, delay problem aside, the very idea of taking promises on affidavits from election candidate is LEGALLY flawed.
.
Solution?
.
There is NO short-cut to Right to Recall.
.
If candidate willfully breaks promises, then expel him.
.
And what to do till there is NO RTR?
.
Well, try to bring RTR. But pls dont waste time on non-solutions like pre-election affidavits of promises.
.
No comments:
Post a Comment