Questions of legality

A small step for the Election Commission, but a great assault on Parliament and the judiciary.

THE rejection of the nomination papers of Jayalalitha in Tamil Nadu and the acceptance of the nomination papers of R. Balakrishna Pillai in Kerala have evoked varied reactions in political quarters. Irrespective of the success or failure of individuals and parties, the Order of the Election Commission introducing a new clarification for rejection of nominations, unless reversed, will have a lasting impact on the course of electoral process in the years to come.

Section 8 of the Representation of the People Act (RPA) deals with disqualification of persons convicted under certain offences classified into three. The first category in Section 8(1) attracts disqualification for a period of six years on mere conviction itself without reference to the quantum of punishment therefor. In the second category of Section 8(2) where the sentence of imprisonment is not less than six months, disqualification is from the date of conviction and shall continue for a period of six years from the date of release. Section 8(3) provides that a person convicted of all other offences and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction and shall continue to be disqualified for six years from the date of release.

These disqualifying provisions have been there in the Election Law since its inception in 1951. So far, the Supreme Courts has upheld the right to contest election by a person coming under one or other of the categories of Section 8 during the pendency of appeal. The judicial decisions have asserted that every step in appeal is part of natural justice. The general view has been that if a person is exonerated of his offence in the final decision of the appellate court, a rejection of his nomination, during pendency of appeal, will become irreversible. The case of Manni Lal v Parmai Lal (AIR 1971, SC 330) was about the acceptance of the nomination of a person convicted and sentenced to ten years. Parmai Lal was a candidate in the Uttar Pradesh Assembly election of 1969. The last date for nomination was January 9, 1969 and the date of scrutiny January 11. On the day of scrutiny, Parmai Lal was convicted by a trial court to ten years' imprisonment for offences under Section 148 (rioting with deadly arms liable for punishment upto three years) and Section 304 (homicide not amounting to murder liable for punishment of imprisonment for life or for a term of ten years). However, the returning officer accepted his nomination. Parmai Lal filed on January 16 an appeal in the High Court against his conviction in the criminal case. Polling took place on February 9 and Parmai Lal was declared successful on Febraury 11.

Manni Lal, one of the candidates, challenged the election, one of the grounds being that Parmai Lal was disqualified for being chosen as a member of the Assembly because of his conviction for more than two years. Before the High Court could give its judgment in the election petition, the conviction and sentence of Parmai Lal in the criminal case were set aside on appeal on June 30, 1969. The High Court in its judgment on October 27, 1969, in the election petition held that the acceptance of nomination was valid as acquittal had the effect of wiping out the conviction. In the appeal (AIR 1971, SC 330) by Manni Lal, the Supreme Court upheld the High Court decision stating: "In this case the High Court proceeded to pronounce the judgment on 27th October 1969. The High Court had before it the order of acquittal which had taken effect retrospectively from 11th January 1969. It was therefore impossible for the High Court to arrive at the opinion that on 9th or 11th February 1969, respondent was disqualified. The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High Court to declare the election could not be formed. The situation is similar to one that could have come into existence if Parliament itself had chosen to repeal Section 8(2) of the Act retrospectively with effect from 11th January 1969."

A similar view was taken in the Vidya Charan Shukla Case (AIR 1981, SC 547). V.C. Shukla had been convicted to two years' imprisonment in January 1979 in the criminal case relating to Kissa Kursi Ka; but his nomination for the parliamentary election was accepted in December 1979 by the returning officer citing the reason that an appeal was pending. Shukla got elected. In an election petition, the Madhya Pradesh High Court held that the nomination of Shukla was improperly accepted. Sukla went on appeal to the Supreme Court. Before the apex court pronounced judgment, Shukla's conviction was set aside in appeal. Following the Manni Lal case, the Supreme Court set aside the High Court decision and upheld Shukla.

Fortunately, the returning officers accepted the nominations in both the cases mentioned above on the principle of pendency of appeal. Suppose the returning officer had rejected the nomination of a person disqualified as on the date of scrutiny, and later the appellate court were to set aside the conviction and punishment. Then, the returning officer's decision would become irreversible and any appeal or application of the principle of acquittal wiping the conviction retrospectively will become infructuous. The Supreme Court in the Shukla case recorded its concern about the possibility of such an acquittal of a person by an appellate court while his nomination had been rejected by the returning officer on the basis of a trial court conviction.

In its order of August 28, 1997, the Election Commission has instructed the returning officers that the disqualification becomes operative from the date of the order of the trial court itself, "regardless of whether the person intending to be a candidate is out on bail or not". This is in blatant contradiction to the view hitherto taken by the Supreme Court and the practice followed by the Election Commission itself. The law has not been changed by Parliament and the decisions of the Supreme Court have not been reversed. The Election Commission has issued the impugned order under Article 324 of the Constitution. Article 324 reads: "The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to Parliament and to the Legislatures of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission.) This Article defines the functions of the Commission in the conduct of elections; but it does not confer any legislative power to the Commission in the matter of elections. It is Parliament and Parliament alone that has the exclusive power to legislate in all matters relating to all elections. This is made clear in Article 327: "Subject to the provisions of this Constitution, Parliament may from time to time make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House including the preparation of electoral rolls for securing due constitution of such House or Houses" (emphasis added).

Even otherwise, Parliament has the exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule in which Item No.72 provides thus: "Elections to Parliament, to the Legislatures of the States and to the Offices of President and Vice-President; Election Commission." Article 327 only amplifies Entry 72 with the inclusion of preparation of electoral rolls and delimitation of constituencies.

It is unmistakably clear that Parliament has the exclusive power to make laws and rules with respect to all matters relating to elections and that the Election Commission has no right to act as a super-Parliament or as a super-Supreme Court to issue orders supplanting the law made by Parliament and the law laid down by the Supreme Court. The Supreme Court has gone extensively into the limitation of the power of the Election Commission. In the case of Mohinder Gill v Chief Election Commissioner (1978 AIR, SC 851), Justice V.R. Krishna Iyer, speaking for the court, observed: "No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commission cannot defy the law armed by Article 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Untouched power is alien to our system... Article 324 in our view operates in areas unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms."

Another case arose when the Election Commission issued an order for the use of voting machines in the Kerala Assembly elections of May 1982. At that time, the election law provided only for ballot papers and ballot boxes. The Election Commission submitted a proposal to the government for the use of voting machines; but the government did not want to do so without studying the implications fully. Without waiting for a suitable amendment in the law, the Election Commission issued orders under Article 324 to use electronic machines. In the Parur Assembly constituency, voting machines were used in 50 out of the 84 polling stations. In the election, Sivan Pillai secured 30,450 votes against 30,327 votes by A.C. Jose. The defeated candidate filed an election petition and the trial court upheld the validity of the Election Commission's order and the use of the voting machine.

In the appeal preferred by A.C. Jose in the Supreme Court, it was argued on behalf of the Election Commission that the Commission being a creature of the Constitution itself, its plenary powers flowing directly from Article 324 will prevail over any Act passed by Parliament. It was contended that the power of Parliament under Article 327 relating to elections would be deemed to be subsidiary to the power of the Commission under Article 324.

Speaking for the court, Justice Murtaza Fazl observed: "If we were to accept the contention of the respondents, it would convert the Commission into an absolute despot in the field of election as to give directions regarding the mode and manner of elections bypassing the provisions of the Act and the Rules purporting to exercise powers under the cover of Article 324. If the Commission is armed with such unlimited and arbitrary powers, and if it ever happens that the person manning the Commission shares or is wedded to a particular ideology, he could by giving odd directions cause a political havoc or bring about a constitutional crisis, setting at naught the integrity and independence of the electoral process, so important and indispensable to the democratic system" (AIR 1984, SC 921, Para 21).

In this case, the Supreme Court stipulated the limitation to the powers of the Election Commission: "To sum up, therefore, the legal and constitutional position is as follows:

(a) When there is no parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections,

(b) Where there is Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Acts and Rules.

(c) Where the Acts and Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of elections and

(d) Where a particular direction by the Commission is submitted to the government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the government is not given."

Parliament, by means of the Representation of the People (Amendment) Act 1988, inserted a new sub-section for the use of machines in elections. Thus even a simple procedure to employ voting machines got legality only under the legislative power of Parliament, not under the power of the Commission armed with Article 324.

It appears that the Election Commission failed to get statutory sanction or a verdict of the court to adopt the new procedure of disqualification. The Election Commission has published in July 2000 a collection of its 'Proposals on Electoral Reforms' to the Government of India from July 1998 to June 2000. In this publication it has reproduced a proposal given in the Chief Election Commissioner's letter dated July 15, 1998 to the Law Minister and reiterated in a letter dated November 22, 1999 to the Prime Minister regarding 'Criminalisation of politics'. The CEC has stated therein: "It is difficult to define as to who a criminal is. Under the jurisprudence, a person is presumed to be innocent unless proved otherwise and convicted by a court of law. Thus, in strict legal parlance, a criminal may be one who has been convicted by a court of law. But a common man perceives otherwise. In his eyes, a person who has been charged with certain types of offences and is under trial is also a criminal... The Election Commission has been devoting serious thought to this vital issue. In August 1997, it issued an order Article 324... The Commission also clarified that the conviction by the trial court itself is sufficient to attract disqualification... It is a small step forward in combating the situation, but has been greatly welcomed by the common people."

In the Foreword dated September 5, 2000 to the Report 'Elections in India - Major Events and New Initiatives 1996-2000', Chief Election Commissioner M.S.Gill said: "The country is concerned at the entry of what is popularly called criminal elements into the electoral fray. The Election Commission has made every effort to curb and control this phenomenon. It is to be remembered that the Commission can recommend but make no law. Only Parliament can... The Commission has made repeated recommendations, in all-party meetings, to leaders and in letters to successive Prime Ministers for amendments to this section, to make it more stringent, simple and easy to apply. Unfortunately, the Commission still waits for some amendments to be passed by Parliament."

Now the wily cat is out of the bag. The Chief Election Commissioner made recommendations for amendment of the provisions concerned and no response came from the government. Then the Commission proceeded to take the law into its own hands - to change the law made by Parliament and to defy the law as laid down by the Supreme Court. At the same time it is conscious that "the Commission can recommend but make no law. Only Parliament can."

In the case of voting machines in 1982, the order of the Commission issued under Article 324 invited harsh strictures from the Supreme Court. Further, in case of inaction or disapproval on the part of the government, the instructions of the Supreme Court are clear that "it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the government is not given."

It is evident that in formulating its own interpretation of a law made by Parliament and in defiance of the law as laid down by the Supreme Court, the Election Commission has again issued an order in August 1997 which is patently unconstitutional and illegal, and moreover dangerously undemocratic.

The Commission has no right to denigrate the judicial process and the 'legal parlance' and to deliver an atrocious declaration that "a criminal may be one who has been convicted of crime by a court of law. But a common man perceives otherwise." Then the question arises how to judge an accused as a criminal, by the judicial process or by the norms of the Election Commission. How does the Chief Election Commissioner know what the 'common man' perceives about the legal process?

In a democratic system, change of government is inevitable. Probably those in power may derive some satisfaction in the use of such draconian measures against those in the Opposition. They should not forget that the position may be reversed and that, pushed to the Opposition side, they may become targets of frivolous charges and criminal cases. On the other hand, we find that persons accused of serious offences, such as murder, kidnapping, dacoity, possession of explosives and arms, extortion, breach of peace, etc., are not only moving freely, but also contesting and winning election after election to the State legislature and to Parliament. One such typical case has been reported about the present Member of Parliament from Siwan constituency in Bihar against whom serious cases, about 30 in number, have been registered. If an accused has the protection of the party in power, then prosecution is lethargic and conviction at the trial court gets postponed indefinitely, with the net result that he or she will not face disqualification under Section 8. The objectives of eradication of corruption and exclusion of persons of criminality are indeed laudable, not only in the field of election, but in every other walk of life. If the procedure adopted to implement such a laudable objective is unconstitutional and undemocratic, the very purpose of the scheme will be irretrievably defeated.

Era Sezhiyan is Senior Fellow of the Institute of Social Sciences, New Delhi, and a former member of Parliament.