SUBRAMANIAN SWAMY Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) IN this petition, styled as public interest litigation, Dr. Subramanian Swamy questions an dated 16th May 2009 made by the President of India under Article 103(1) of the Constitution of India holding that Smt. Sonia Gandhi has not incurred any disqualification under Article 102 (1)(d) of the Constitution of India.

(2.) THE said order came to be passed consequent upon a reference made by the President of India on 25th June 2007 to the Election Commission of India (ECI?) seeking its opinion under Article 103 (2) of the Constitution of India on the question whether Smt. Sonia Gandhi, a Member of Parliament (MP?) had, by accepting the title of Grand Officer of the Order of Leopold? from the Government of Belgium on 11th November 2006, incurred such disqualification. This reference was made on the basis of a petition submitted by Shri P. Rajan of Kerala.

(3.) DR . Swamy urges that the ECI did not follow the procedure that ought to have been followed in conducting an enquiry into the question referred to it. Relying on the opinion of Shri Gopalaswami, he contends that the citation that might have accompanied the conferment on Smt. Gandhi of the honour of Grand Officer of the Order of Leopold? by the Government of Belgium ought to have been called for in order to determine whether the honour conferred was a decoration? or a title?. Dr. Swamy relies on the judgment of the Full Bench of the Madras High Court in K.S. Haja Shareff v. His Excellency, the Governor of Tamil Nadu AIR 1985 Mad 55 and submits that the majority view ought not to have accepted the clarification given by Belgium Government that the said honour was only a decoration and not a title. According to him, the Ministry of External Affairs (MEA?) of the Government of India as well as the Government of Belgium were interested parties whose views on the matter were unreliable. Dr. Swamy claims that during a recent visit to Belgium he was "informed by an Official of the Government of Belgium that the Order was indeed a Title and not a mere Decoration." And, if it was a title, then Shri Rajan?s petition was required to be enquired into by the ECI again to determine if the disqualification in terms of Article 102(1)(d) stood attracted.