The stage is set for the enactment of a law, following a rare consensus among political parties, to undo the Election Commission's move to make information on candidates' wealth and education and any criminal antecedents, available to voters.
ON June 28, the Election Commission of India issued a detailed order under Article 324 of the Constitution, in conformity with a Supreme Court directive to it on disclosing certain items of information pertaining to candidates during elections. On May 2, a Supreme Court Bench had upheld and modified a Delhi High Court order of November 2, 2000 in Association of Democratic Reforms vs. Union of India, which was challenged by the Central government (Frontline, June 21). The order had held that in order to enable voters to make the right choice, the candidates' past should not be kept under wraps. The E.C. has prescribed that each candidate submit an affidavit at the time of filing his/her nomination papers for election to the Rajya Sabha or the Lok Sabha or the Legislative Assembly or Council of a State.
The E.C.'s order came after the Centre proved reluctant to comply with its request to amend Forms 2A to 2E appended to the Conduct of Elections Rules, 1961 (forms for nomination papers) well before July 2, the deadline fixed by the Supreme Court. The Union Ministry of Law and Justice advised the E.C.to seek more time from the court to implement its order as the government had convened an all-party meet on the issue on July 8. The E.C., however, refused to do so, saying that it was for the government to seek more time from the court if it considered it necessary. As the court did not extend the deadline, the E.C. went ahead and issued the order.
The E.C.'s order makes it mandatory for every candidate to furnish full and complete information relating to all the five matters specified in the Supreme Court judgment. They are whether the candidate has ever been convicted/acquitted/discharged in any criminal case; whether prior to six months of the filing of nomination, the candidate was accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charges are framed or taken cognizance of by the court of law; the details of the assets of the candidate, his/her spouse and those of his/her dependents; liabilities; and his/her educational qualifications.
The order made it clear that failing to furnish the affidavit shall be considered a violation of the Supreme Court's order and as such the nomination papers shall be liable to be rejected by the Returning Officer (R.O.) on the grounds of providing wrong or incomplete information or suppressing material information, if the defect is of a substantive nature. The R.O. could also invoke the provisions of the Indian Penal Code. The R.O.s would release the information furnished by each candidate in the affidavit. The order adds that there is no need to file any additional affidavit, which was earlier required in pursuance of the E.C.'s August 1997 order and which sought to disqualify candidates convicted by a trial court but whose conviction was yet to be reversed by an appellate court.
The June 28 order rattled political leaders who believed that the E.C. and the judiciary were overstepping their limits. At the all-party meeting presided over by Deputy Prime Minister L. K. Advani on July 8 in New Delhi, representatives of 21 political parties rejected the E.C.'s order and urged the government to introduce a comprehensive law.
First and foremost, the leaders considered the E.C. directive to furnish information on educational qualifications to be out of tune with the country's constitutional ethos. Some of them recalled that the members of the Constituent Assembly had rejected a proposal to prescribe educational qualifications for candidates as it ran counter to the democratic aspirations of the people. No doubt, the information sought is only for the benefit of the voters, and not for the purpose of disqualifying a candidate.
The Supreme Court nullified the Delhi High Court's directive to the E.C. to seek details to judge the capacity of a political party fielding the candidate. However, it retained the directive relating to information on the educational qualifications of the candidate because the E.C. has agreed to seek such information, which it assumed is legitimate. However, what the E.C. had stated in its affidavit before the Supreme Court in this case with regard to seeking details to judge the capacity of a political party or candidate could apply to seeking information on educational qualifications too.
The E.C. had stated: "Any attempt on the part of the ECI to go into the facts having a bearing on the competence, capacity and suitability or otherwise of a candidate or on the capacity and capability of a political party and project the same to the public would be destructive of the fundamental principle of free and fair elections." Needless to say, educational qualifications could be easily construed to have a bearing on the competence, capacity and suitability of a candidate.
The July 8 meeting also felt that it was pointless to furnish this information as the voters are normally aware of their candidates' educational background. It favoured disclosure of assets and liabilities after the election before the presiding officer of the House concerned, and not at the time of the filing of nominations. Curiously, the E.C. had in its affidavit opposed the High Court's directive to seek information on the assets of candidates.
It stated: "In Indian society, rights to property are governed not only by the enacted statutory laws but also by personal laws applicable to the members of different communities, castes etc. In a Hindu Undivided Family, the member of such family may not be even aware of his exact share in an undivided joint family property. Requiring a candidate to disclose all assets, not only of himself or herself but also of all his/her dependent relations, may not be desirable. It also seems to be an unnecessary intrusion into the privacy of a citizen, merely because he has chosen to offer himself or herself as a candidate.'
The Supreme Court, however, disagreed with the E.C.'s view. It said in its May 2 judgment that voters were entitled to know that their representative had not misconducted himself/herself in collecting wealth after his/her election. This information, it said, could be easily gathered only if the assets of such persons were disclosed early. The court did not consider the E.C.'s plea that Parliament and the State legislatures are already seized of this aspect and may enact laws requiring the filing of returns by Ministers and legislators after they take the oath of office.
In its June 28 order, the E.C. justified the requirement on disclosure of assets saying that if a candidate is required to disclose on affidavit at the time of election the assets held by him/her, voters can decide whether he/she can be re-elected. Obviously, this requirement would apply only to those candidates who are seeking re-election. If the elected candidates submit returns on their assets and liabilities periodically to the presiding officer of the House concerned, and if this is made public, then this requirement would perhaps lose its relevance.
The all-party meeting was concerned about the requirement to publish information on criminal cases involving candidates. It was pointed out, for instance, that it was not unusual for candidates to be involved in pending cases pertaining to participation in agitations and violation of prohibitory orders. The punishment for such offences, if convicted, might result in imprisonment for two or more years. Some representatives pointed out that it will be practically impossible to recall all such cases at the time of filing nominations, and that the disclosure of incomplete or wrong information, even if it was not deliberate, could lead to prosecution, let alone the rejection of nomination and as a consequence disqualification.
As the R.O.s will have the power to scrutinise the nominations and affidavits, their subjective decision will play a crucial role in determining the candidates' eligibility to contest. The E.C.'s order is seen as giving vast discretionary powers to the R.O.s. The R.O.s could be used by governments to scuttle the electoral chances of political opponents, the parties feared.
The incongruities in the E.C.'s order have united the entire political class behind the National Democratic Alliance (NDA) government, which has promised to enact a law to implement the positive features of the Supreme Court's judgment, while leaving out its impractical directives to the E.C. The new law will be passed during the monsoon session of Parliament. The E.C.'s order will then become redundant, as it could hold sway only as long a piece of legislation is not in force, as Law Minister Jana Krishnamurthy claimed on July 8. It remains to be seen whether the proposed law will leave any scope for ambiguity which could justify the intervention of the judiciary and the E.C.
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