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Time to respond to the people

By Jayaprakash Narayan

All parties, and indeed all true democrats, have an obligation to help cleanse the electoral system and restore legitimacy to the political process.

IN OUR parliamentary system, it is exceptionally rare for a President to return a proposal or Ordinance submitted for approval. Despite this, the President, A. P. J. Abdul Kalam, was sufficiently concerned about the provisions of the poll reforms Ordinance to return it to the Union Cabinet for reconsideration. He acted with exceptional diligence, courage, constitutionalism and statesmanship in returning the Representation of the People (Amendment) Ordinance 2002. Sadly, the Government chose to disregard presidential caution, and reiterated its recommendation, forcing the President to promulgate the controversial Ordinance.

The Supreme Court judgment of May 2 declaring the voters' right to know the antecedents of candidates as a fundamental right guaranteed under Article 19(1) of the Constitution, and a natural right flowing from the very concept of democracy, has started a chain of events. In many ways, this judgment was a great opportunity for the political parties to set their houses in order, begin a process of cleansing the political process, and enhance the legitimacy of our elections. Difficult political choices could have been made taking advantage of the Court directive, thus paving the way for elimination of several distortions which had crept into politics over the decades. Sadly, the political establishment has reacted as a trade union under siege, not as an enlightened group capable of genuine leadership. A dangerous standoff between strong public opinion and recalcitrant and status quoist political response is the inevitable result. Never before during peacetime have people at large been united so strongly on any issue over the past 50 years. Several surveys, opinion polls and ballots showed that an overwhelming majority of the people — 95 per cent or more — are in favour of full disclosure of criminal records and financial details of candidates. The parties too exhibited an impressive unity of purpose in thwarting disclosures.

The political parties certainly had one legitimate, though overstated, concern. The Election Commission's (E.C.) order of June 28 in pursuance of the Supreme Court directive does provide in paragraph 14(4) for rejection of nomination for furnishing any wrong or incomplete information or suppression of any material information, if it is considered by the Returning Officer (RO) to be a "defect of substantial character". Though the E.C.'s record of impartiality and fairness is well established, the parties' concerns are understandable. Any seemingly arbitrary power to mar his candidature in the hands of a local official who might be influenced by his political rivals is a source of great anxiety to a candidate. But this concern can be addressed by a mere amendment of Rule 4 of the Conduct of Election Rules, 1951. Non-filing of affidavit can be a ground for rejection of nomination, and substantial and wilful non-disclosure can be a ground for subsequent disqualification and prosecution for perjury. Instead of resorting to such a simple remedy, this alleged fear of the RO acting as an "unguided missile" is sought to be used as a red herring. The real motive obviously is to substantially nullify the disclosure provisions.

The provisions for disclosure of criminal record as provided in the Ordinance are reasonable. The Ordinance provides for disclosure of all pending charges framed by a magistrate in respect of offences punishable with imprisonment for two years or more, and of conviction for any offence provided the sentence of one year's imprisonment is awarded. Presumably, these disclosures of pending charges and convictions are in addition to what was proposed by the Government for incorporation in the Conduct of Election Rules. Part III A of the affidavit proposed in the Rules earlier covered conviction for all the offences listed under Section 8(1) and 8(2) of the RP Act, 1951.

This avoidable ambiguity about the extent of disclosures of criminal record should be removed at the earliest, and corrected in the Bill to be introduced in Parliament. On the whole, if that omission is rectified, these disclosure provisions are satisfactory in respect of criminal record. The real issue for most politicians is disclosure of financial details of the candidate, spouse and dependent family members. The Ordinance does not provide for such disclosure by candidates, but actually seeks to prevent it. Section 3 of the Ordinance states: "After Section 33 of the principal Act, the following section shall be inserted, and shall be deemed to have been inserted with effect from the 2nd of May, 2002 namely: 33B. Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information in respect of his election, which is not required to be disclosed or furnished under this Act, or the rule, made thereunder."

This provision in the Ordinance gives the game away. The real purpose of the legislation is to substantially nullify the Supreme Court directive. The Section 33B inserted by this Ordinance is specifically aimed at denying the citizens the fundamental right to know the antecedents of candidates seeking public office. The Court, after reviewing a series of earlier judgments, held: "In a democracy the electoral process has a strategic role. The little man of this country would have (the) basic elementary right to know (the) full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted... Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters' speech or expression in case of election would include casting of votes, that is to say, a voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must. Voter's right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy."

It is clear that the Supreme Court traced the voters' right to know the antecedents of the candidates to the fundamental rights guaranteed under Article 19 of the Constitution. Disclosure of assets and liabilities of elected legislators to the presiding officers, as provided in the Ordinance, is no substitute for disclosure by candidates before the voter can exercise his informed choice.

Article 13(2) of the Constitution explicitly prohibits the making of any law which takes away or abridges the fundamental rights. On August 16, the Union Cabinet met and decided to send the Ordinance to the President, as the Parliament session has ended. Obviously, the proposed section, or any other similar section(s) on redrafting, of the draft Ordinance is a clear and unambiguous violation of the fundamental rights of citizens, and is inimical to the natural rights of voters flowing from the very concepts of democracy and people's sovereignty.

A President asking the Cabinet to reconsider advice is no small matter. It is an admonition to refrain from a patently illiberal and unconstitutional path. The Government's prestige would have been enhanced if it had heeded the President's caution

Since the Government reiterated its recommendation, the President was forced to promulgate the Ordinance. A part of this legislation is explicitly violative of fundamental rights as interpreted by the Supreme Court. The emergency power of legislation by the President under Article 123 cannot be exercised lightly, particularly when the Ordinance is proposed to substantially nullify the apex court judgment, and curtail the fundamental rights of citizens.

The matter will now certainly go to the Supreme Court on grounds of violation of fundamental rights as interpreted by it in its May 2 judgment. But it would be foolhardy for political parties to make this a battle ground for legislative supremacy. The political establishment will do well to exhibit enlightened self-interest and good sense, by responding to people's concerns. Public opinion cannot be ignored for long by parties. All parties, and indeed all true democrats, have an obligation to help cleanse the electoral system and restore legitimacy to the political process.

(The writer, a former civil servant, is the National Coordinator of the Lok Satta movement.)

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