‘Respect public perception’

Interview with Sanjay Parikh, Supreme Court advocate.

Sanjay Parikh.

SANJAY PARIKH, an advocate with the Supreme Court, has been involved with a series of public interest litigation cases on issues relating to corruption in politics and to the environment in his decades-long career. He enrolled with the Bar Council of India in 1982. Parikh’s zeal to decriminalise politics derives from his firm belief in Gandhian principles. He argued for the People’s Union for Civil Liberties (PUCL) in the recent NOTA case in the Supreme Court. Other significant cases fought by him include the Narmada Bachao Andolan case and the case involving the contamination of drinking water following the Bhopal gas tragedy. In an interview to Frontline , Parikh speaks about the importance of the NOTA judgment, the attitude of political parties, and the long-term goal of electoral reforms. Excerpts:

What prompted you to file this petition? What was the immediate trigger?

The present petition is the latest in a series of attempts in the past decade to cleanse politics of criminals. This petition [NOTA] was filed in 2004 with a view to compelling political parties to change their attitude to criminals in politics and offering a choice to the voter when he is aware of the criminal backgrounds of the candidates. There is a history to this. In 2002, the Supreme Court in Union of India vs ADR [Association for Democratic Reforms] had ruled that voters have the right to know about the credentials of the candidate. In this landmark judgment, the right to know the background of the candidate and the right to express your opinion through a vote were both read as integral parts of Article 19 of the Constitution [freedom of expression]. This judgement was in response to two petitions filed by the PUCL and the ADR. Following the judgment, an ordinance was introduced in 2002 for amending the Representation of the People Act [RPA], unanimously supported by all political parties, which diluted the impact of the judgment by providing that it was not mandatory for political parties to declare their assets and the criminal backgrounds of the candidates. This ordinance was challenged by the PUCL in 2003. Subsequently, the Supreme Court, in PUCL vs Union of India struck down in 2003 the amendments to the RPA introduced by the ordinance. In all of this, it is important to note that the mindset of political parties has not changed. Political parties have been hostile towards these attempts to cleanse politics of corruption. After the 2003 judgment came out, our consideration was what choices are available to the voter who knows about the criminal background of the candidate. The petition on NOTA was filed with that in mind. We thought that if the political parties are not changing, there should be some mechanism whereby voters can compel them to change.

Why is it so important to maintain the secrecy of the right not to vote? The choice was already provided under 49(O) of the RPA.

The point raised in the petition was that the right not to vote is provided in law itself. As per Section 79(D) of the RPA, the voter has the right to vote and the right not to vote. However, Rule 49(O) states that if you don’t want to cast your vote, you have to fill up Form 17(A). The voter has to come out and declare that he is not voting for any of the candidates. This provision works in a place where the voter can assert himself, but in rural areas there might be a lot of pressure on voters who decide not to vote. As the right to vote and the right not to vote are accorded the same significance in Section 79(D), it is important to provide secrecy both to the person casting his vote and the one not casting his vote. Secrecy is fundamental to maintaining the purity of the election process. The right to a secret ballot in direct elections is part of the Universal Declaration of Human Rights. If the secrecy of the voter choosing none of the candidates is not preserved, it would lead to discrimination against him, which is not permissible under Article 14 of the Constitution.

There is this perception that NOTA will lead to voters rejecting all candidates. This was not the purpose of the petition. The right to use NOTA is an instrument to serve the purpose of democracy and good governance. It can be used to ensure that the candidates are clean, have declared their assets and explained criminal records, if any. If the political parties had taken a strong stance against candidates with criminal backgrounds, then the need for this provision would not have arisen. The political parties should give more importance to public perceptions. There will then be a vast change in the entire electoral process. One argument often forwarded to explain away criminal cases against politicians is that a lot of these are part of political vendetta. This is for the courts to decide. I would think that even if in the process of cleansing politics we lose some candidates against whom false cases are registered, the sacrifice is necessary just to ensure that no people with criminal backgrounds enter politics.

How do you see the verdict impacting the electoral process and democracy in the long term?

Dialogue is an absolute necessity in a democracy. It is the compelling force of the majority. Though there are a few people who get elected to positions of power, they only act as trustees of the people who elect them. If the majority of the voters convey to those in power that what they are doing is incorrect, then change will come. A message should go out to the political parties through NOTA that the voters will have a right to say no if they put up a candidate who has a tainted background. However, this awareness seems to be lacking among the leaders of political parties. The consciousness of being a trustee of the people is not coming in. The NOTA provision has the potential to shame political parties into admitting their failures to answer the aspirations of the people. In the long run, if we find that there are a large number of constituencies which vote for NOTA, then there will be a move to amend the law [the RPA].

What are the logistical implications of implementing NOTA?

Some people argue that the implementation of NOTA will drive up election expenses. But a tainted candidate who indulges in corruption and malpractices is a greater cost for the country. It is only the desire to continue in power and the greed for money that take prominence over values.

Was the NOTA petition part of a longer strategy? What are your long-term goals vis-a-vis electoral reforms?

If a large number of people choose NOTA, the government elected will not have the mandate to govern. A candidate elected with 20 per cent of the votes coming to power goes against the higher principles of democracy and the basic features of the Constitution which provide for governance by a candidate with a majority mandate. If Parliament does not respond to this situation by amending the law [the RPA], then people will be forced to approach the courts. Following this judgment, an amendment to the RPA stating that more than 50 per cent voting for NOTA will lead to re-election in a constituency will be appropriate. This law will act as a deterrent to political parties fielding tainted candidates. This will clean democratic politics to some extent.