Wanted, overall reforms

Print edition : August 03, 2002

In fighting criminalisation in the electoral arena, Parliament has a unique opportunity presented before it today, and this opportunity ought not to be missed.

THERE has been widespread concern in India over a period of time about the growing menace of criminal elements entering the political arena. Parliament itself has been conscious of the alarming deterioration of ethical norms in public life during the past 50 years. At the special session of Parliament on the occasion of the Golden Jubilee of Independence celebrated during August-September 1997, the Lok Sabha adopted a resolution which urged, among other things, that "continuous and proactive efforts be launched for ensuring greater transparency, probity and accountability in public life so that the freedom, authority and dignity of the Parliament and other legislative bodies are ensured and enhanced; that more especially, all political parties shall undertake all such steps as will attain the objective of ridding our polity of criminalisation or its influence."

Since this golden pledge, there have been two rounds of elections to the Lok Sabha. Soon after coming to power in 1998, the Bharatiya Janata Party and its allies in the National Democratic Alliance (NDA) released the National Agenda for Governance, which was presented as "a joint commitment, an assurance given to the entire country". In that solemn declaration, the NDA gave a categorical assurance: "We will introduce necessary electoral reforms on the basis of recommendations of the Goswami Committee so as to deal with the malaise of defections, corruption and criminalisation of politics and to end electoral malpractices." Unfortunately, that government fell in April 1999.

In its manifesto for the elections held in October 1999, the NDA reiterated the same assurance, to deal with corruption, criminalisation of politics and electoral malpractices. Since then the government has introduced two Bills that seek to deal with such issues. The Representation of the People (Amendment) Bill of November 2001 seeks to remove in respect of elections to the Council of States the requirement of residence of the particular State concerned and to introduce an open-ballot system. The Election and Other Related Laws (Amendment) Bill of March 2002 aims "to bring transparency in the funding of the political parties by the corporate sector and by other persons". It also seeks to amend the Explanations of Section 77 (1) of the 1951 election law in order to exempt the expenses incurred by the party leaders from the expense account of the candidate.

Regrettably, apart from these two minor attempts no worthwhile efforts have been made by the present government at the Centre either to introduce a comprehensive bill on the basis of the Goswami Committee Report or to take effective steps to deal with defections, corruption, criminalisation of politics and suchlike ills.

In its order of May 2, 2002 in Association for Democratic Rights vs Union Government, the Supreme Court directed the Election Commission to call for information regarding criminal antecedents, assets and liabilities and educational qualifications of candidates. In making this directive, the Court rightly observed: "Voter's (little man-citizen) right to know antecedents including criminal past of his candidate contesting election is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers." The order has been welcomed with hope and fervour by the media and the public.

As it is at present, Section 8(2) of the Representation of the People Act, 1951, provides for the disqualification of a person from contesting elections on conviction for certain offences. Up until August 1997, the general view of the judiciary and the E.C. was that a convicted person released on bail was not disqualified from contesting elections during the pendency of an appeal. This position was changed by the E.C. order of August 28, 1997, which made the disqualification operative from the date of conviction by the trial court regardless of whether an intending candidate is out on bail or not. The order required the candidate to file an affidavit regarding any conviction of convictions that he or she may have suffered that would attract action under Section 8.

It appears that the E.C. approached the Law Ministry seeking to amend suitably the nomination forms as per the Supreme Court directive. But the government wanted time to confer with the political parties and convened an all-party meeting on July 8, 2002. The Supreme Court Order of May 2 had instructed the E.C. to give effect to its directions "as early as possible and in any case within two months". That meant that the directions of the court would have had to be implemented before July 1. On the basis of that constraint, the E.C. proceeded to issue an order on June 28, prescribing the form of affidavit to be submitted by each candidate at the time of filing his or her nomination paper for any election.

Deputy Prime Minister L.K. Advani presided over the all-party meeting on July 8 and Law Minister Jana Krishnamurthi briefed the leaders of 21 political parties about the directives of the court and the order of the E.C. It is reported that there was unanimity among the parties in deciding to reject the E.C. order and urge the government to prepare a comprehensive bill relating to the matter. Accordingly, the government has prepared and circulated a draft Bill.

First, without going into the basis of the decision of the all-party meeting, the full details of the views expressed there by the party leaders not being available, and without going into the merits of the E.C. order and the draft Bill, one feels strongly that by its order, the Supreme Court in no way overstepped its limitation and that the decision of the all-party meeting does not signify a confrontation with the court.

In the enactment of a statutory measure or the issue of an order, there are certain limitations on the powers of the constitutional authorities. The Supreme Court can interpret a law, but cannot legislate it. Where there is a lacuna in the law or there is obviously a bad law, the Supreme Court does point out the defect and suggests measures of rectification. But suitable legislation is to be made by Parliament or the legislature concerned. The Supreme Court made this clear in Rishabh Agro Industries vs P.N.B. Capital Services (2000-5 SCC 515): "While interpreting, this Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to abuse of process of law, it is for the legislature to amend, modify or repeal it by having recourse to appropriate procedure, if deemed necessary."

THE Election Commission is a constitutional authority and Article 324 does authorise the Commission to exercise powers of superintendence and control over the preparation of electoral rolls and the conduct of elections. Although the E.C. has in the past often assumed that under Article 324(1) it has a reservoir of powers to issue all the necessary directions for the conduct of fair and free elections, the Supreme Court has defined the limitations. In A.C.Jose vs Sivan Pillai (AIR 1984, SC 921), the court held that when there is no parliamentary legislation or rule with regard to a specific aspect or question, the Commission is free to pass any order in respect of the conduct of elections; but where there is an Act and express rules are made thereunder, it is not open for the Commission to pass orders overriding the mandate of the Act or the rules. Where a particular direction by the Commission is submitted to the government for approval, as required by the rules, it is not open for the Commission to go ahead with its implementation even when the government has not given its approval.

In the present case, the law and the rules are silent about requiring a candidate to submit an affidavit giving the particulars as directed by the Supreme Court. In such a situation, the E.C. has the power to pass necessary orders. But once Parliament enacts the relevant statutory measure and rules thereunder, they will nullify the order of the Commission.

Hence, it has to be seen how far the draft Bill meets the situation raised by the directives of the Supreme Court. The order asked for the submission of the following items of information by a candidate:

* Whether the candidate is convicted or acquitted or discharged of any criminal offence in the past; if any, whether he or she is punished with imprisonment or fine;

* Prior to six months of filing nomination, whether the candidate stood accused in any pending case, of any offence punishable with imprisonment up to two years or more and in which charge is framed or cognisance is taken by the court of law;

* The assets (immovable, movable, bank balances and so on) of a candidate and of his spouse and that of dependents;

* Liabilities, if any, particularly whether there are any overdues payable to any public financial institution or government;

* The educational qualifications of the candidate.

The draft Bill deals with the first two items given above. It provides insertion of a new Section 8B in the 1951 Act to enable the disqualification of a person against whom charges have been framed in two separate criminal proceedings concerning heinous offences by a court at least six months prior to the date of nomination. This provision shall not apply in respect of any criminal proceeding that has been stayed by an order of a competent court. A candidate who provides false information or conceals relevant information could be disqualified after being elected. Further, he or she shall be liable to be punished with imprisonment.

The draft Bill does not deal with calling for information on the assets and liabilities and educational qualifications of candidates. This writer feels that the question of the educational background of the candidate has been left out for good reasons. Although the Constitution has not stipulated any formal educational qualification for being a Member of Parliament, an analysis of the educational profile reveals that while 23 per cent of the members of the First Lok Sabha (1952-57) had educational qualification below matriculation, by the time of the Twelfth Lok Sabha (1998-99) the percentage of such persons had fallen to a figure of 2. In any case, several leaders without any formal school education have distinguished themselves as able administrators and effective political leaders.

The draft Bill contains no reference to the financial assets and liabilities of the candidate, his or her spouse and dependent members. According to press reports, the party leaders favoured the submission of the statement of assets and liabilities to the House after the election of the candidate. This misses the purpose of the Supreme Court directive to make available information about the financial background of the candidates to voters before the elections. The voter's right to information of this kind is based on the fundamental right under Article 19 of the Constitution and will go a long way to enable the voter to make his or her choice on the basis of information about the candidate concerned.

The Supreme Court has often cautioned Parliament about the misuse and distortions of electoral laws. It might have been that sane advice given by the apex court had been largely brushed aside by the government and Parliament. There is an attempt now to disqualify criminals from being candidates in elections to Parliament and the State legislatures. Good! What has Parliament done to prevent the frightening criminalisation of electoral politics through the blatant participation of smugglers, criminals and anti-social elements in the conduct of elections?

Up to 1975, expenses incurred or authorised by the candidate and his agent alone were required to be included in the statement of election expenditure of the candidate. Expenditure incurred by the party and friends were not taken into his account. However, in Kanwarlal Gupta (AIR 1975, SC 308), the Supreme Court held that expenditure incurred by the party sponsoring the candidate, as distinguished from expenditure on general party propaganda, should be included in the accounts of expenditure of the candidate. The government of the day was alarmed by this judgment delivered on October 3, 1974, and acted swiftly to issue on October 19, 1974, an ordinance to neutralise the judgment by inserting an explanation to Section 77 of the 1951 Act with retrospective effect and managed with its majority in Parliament to pass it into law.

The explanation provides that "any expenditure incurred by a political party or by any other association or body of persons or by any individual (other than the candidate or his agent) shall not be deemed to be expenditure in connection with the election of the candidate".

Time and again the Supreme Court drew the attention of Parliament to damage done to the purity of the process of elections by this atrocious piece of legislation. In G.Y. Kanakkarrao (AIR 1994, SC 678), the Supreme Court observed: "The prescription on the ceiling on expenditure by a candidate is a mere eyewash. This lacuna in the law is, however, for the Parliament to fill, lest the impression is reinforced that its retention is deliberate for the convenience of everyone. If this is not feasible, it may be advisable to omit the provision to prevent the resort to indirect methods for its circumvention and subversion of the law. This provision has ceased to be even a fig leaf to hide the reality."

Again, in C. Narayanaswamy vs Jaffer Sharief (1994, 3SCC, 170 Supp), the Supreme Court recorded its dissatisfaction: "As the law stands today, anybody including a smuggler, criminal or any other anti-social element may spend any amount over the election of any candidate in whom such person is interested, for which no account is to be maintained or to be furnished and any such expenditure shall not be deemed to have been expenditure in connection with the election under Section 77(1), so as to amount to a corruption within the meaning of Section 123(6). If the call for 'purity of election' is not to be reduced to a lip service or a slogan, then the persons investing funds in furtherance of the prospect of election of the candidate must be identified and located. But this has to be taken care of by the Parliament" (1994, 3SCC 170 Supp).

It is clear that the observations of the Supreme Court are genuinely meant to protect the conduct of elections from the evils of money power and criminalisation. The court fully recognised its own limitation and left it to Parliament to make suitable legislation. It will be unfair to raise the bogey of usurpation of legislative power by the court in the present case.

Most of the parties that are now either in the ruling NDA or in the Opposition have in the past demanded the deletion of this legal absurdity. The Goswami Committee also recommended the removal of all explanations inserted in this regard in election law. The National Agenda of Governance and the election manifesto of the NDA had promised to implement the Goswami Committee Report and to deal with the malaise of corruption and criminalisation of politics. Now there is a wholesome unity across the spectrum of political parties. This opportunity should not be missed. A hastily drafted bill will only serve to neutralise the order of the E.C.

Parliament should protect its authority and power in the realm of legislation. In a humble way, this writer himself has, in association with many other colleagues in Parliament, striven to uphold the right and dignity of Parliament. It is not desirable to use the power just to assert Parliament's own authority. It will be better to use the power in a positive manner in order to honour the trust and fulfil the responsibility cast on the members as representatives of the people. Parliament should utilise the opportunity to implement much-needed overall electoral reforms without wasting energy and time on frivolous distractions.

When a job is worth doing, it is worth doing it well.

Era Sezhiyan was formerly a Member of Parliament and a member of the Goswami Committee on electoral reforms.

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