IN THE HIGH COURT OF DELHI AT NEW DELHI . 22.01.2010 . Present : Dr. Sebastian Paul, Advocate for the petitioner. Mr. P.R. Chopra with Mr. S.K. Mendirata, Advocates for respondent no.1-ECI. Mr. Gopal Subramanium, Solicitor General and Mr. A.S. Chandhiok, ASG, with Mr. Sachin Datta and Mr. Ritesh Kumar, Advocates for respondent no.2. . + W.P.(C) No. 436/2010 . The petitioner, who claims to be a journalist, submitted a petition to the President of India alleging that Smt. Sonia Gandhi had incurred a disqualification under Article 102(1)(d) of the Constitution of India on account of her accepting a title from the Government of Belgium. That petition filed on 07.05.2007 was referred to the Election Commission on 25.06.2007 for its opinion under Article 103(2) of the Constitution of India. The said Reference Case no.10/2007 was ultimately returned to the President of India by the Election Commission on 13.04.2009 with the majority opinion of 2:1 that the petition dated 07.05.2007 of the petitioner was devoid of any merit and Smt. Sonia Gandhi could not be said to have incurred a disqualification under Article 102(1)(d) of the Constitution of India. The difference of opinion was only over the issue that the Chief Election Commissioner opined that there was some ambiguity in respect of the question whether only a distinction can be conferred or a title and, therefore, the same needed further clarification which, in turn, would throw a light on the issue of any element of allegiance/adherence to a foreign State. On the basis of the opinion, the President of India ordered on 16.05.2009 that Smt. Sonia Gandhi had not incurred any disqualification and, thus, the said order was published in the notification of 18.05.2009 in the Gazette of India. A writ petition under Article 226 of the Constitution of India came to be filed by Dr. Subramanian Swamy stated to have been styled as a public interest litigation being W.P.(C) No. 13873/2009 raising the same issue. This writ petition was dismissed on 16.12.2009 by the Division Bench. The facts have been dealt with in details. The important aspect taken note of is that a clarification was sought from the Belgium Government and as per the communication of Embassy of Belgium, it was clarified that the decoration was not a title but a recognition for Smt. Sonia Gandhi?s eminent contributions to peace and democracy in the world. The Division Bench rejected the contention of Dr. Subramanian and dealt with the minority opinion of the then Election Commissioner. The relevant portion of that order is reproduced as under: ?8. We fail to appreciate how the ECI can sit in appeal over the unambiguous clarification issued by the Government of Belgium in the form of a note verbale, that what has been conferred on Smt. Gandhi is not a title but a decoration. The desperate attempt by Dr. Swamy to doubt the bonafides of the Government of Belgium is without basis and deserves rejection. The reliance on the judgment of K.S. Haja Shareff is, in our view, wholly misplaced. The facts of that case, as set out in paras 8 and 9 of the said decision, show that the Petitioner there was appointed as Honorary Consul General of Turkey at Madras, which admittedly was a post of which he took charge. In para 25 it was concluded that ``on being appointed as Consul, the petitioner has agreed to bind himself and observe the . . conditions siputlated by the Government of Turkey, to the extent to which he had been appointed to carry out his functions. Therefore the High Court upheld the view of the ECI in that case that the petitioner had acknowledged adherence to the Government of Turkey. 9. There can be no comparison of the facts in K.S. Haja Shareff with the facts of the present case. In fact the minority opinion itself notices this. Being appointed to a post under a foreign State is not the same thing as being conferred an honour by a foreign State. We do not find the decision in K.S. Haja Shareff to have any relevance to the present case. 10. Article 102(1)(d) places an onus on a person seeking to disqualify an MP to show, even prima facie, that such MP is under any acknowledgment of allegiance or adherence to a foreign State. Neither Shri P. Rajan, nor Dr. Swamy have discharged that onus. We fail to appreciate how without even a prima facie case being made out and some factual foundation laid, the ECI is supposed to undertake a detailed inquiry, overlooking the clarification of a foreign State about the nature of the honour conferred by it. Consequently we do not find any legal infirmity in the opinion of the ECI on the basis of which the President issued the impugned order dated 16th May 2009.? . Now the petitioner has approached this Court under Article 226 of the Constitution of India raising the same plea. Interestingly, the petitioner claims that he has been unaware of the fate of his petition to the President of India and pleads ignorance of the Gazette notification published in this behalf. The petitioner claims that he sought information under the Right to Information Act, 2005 on 18.06.2009 and the relevant papers were supplied to him on 26.08.2009. Even thereafter, the petitioner has filed the present petition only in January 2010, after almost five months. We are in complete agreement with the views expressed by the Division Bench in Dr. Subramanian Swamy?s case (supra) and, in our considered view, there can be no doubt after the clarification issued by the Belgium Embassy. The Election Commission cannot sit over an appeal over the unambiguous clarification given by the Government of Belgium. Despite the fact that in para 10 of the said order of Division Bench a reference has also been made about the petition filed by the petitioner, the petitioner has now chosen to come before this Court seeking to possibly get his name in persons who keep on agitating the issue. Learned counsel for the petitioner insisted on arguing the petition despite knowledge of said order. We find this petition misconceived and devoid of any merit. . . The petition is dismissed with costs quantified at Rs.10,000/- to be paid to the respondents. . . SANJAY KISHAN KAUL, J. . . VEENA BIRBAL, J. JANUARY 22, 2010 srb . .