The Hindu : The Supreme Court and elections

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Friday, Jul 12, 2002

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The Supreme Court and elections

By Rajeev Dhavan

All that the apex court has done is fill a lacuna, not rewrite a law. It has left it to the people to make an informed choice.

DEMOCRACY AND information go hand in hand. A democracy that knows not, and knows not that it knows not, is a poor democracy. Indian democracy is getting poorer by the day. Justice M.B. Shah's judgment in the Election Reforms Case decided on May 2, 2002, struck a blow for Indian democracy by giving detailed instructions on the right of an Indian voter to know full details about the persons who stand for election. In doing this, due credit must go to the judgment of the Delhi High Court which has been placed on a firmer foundation by the Supreme Court in appeal.

The criminalisation of Indian politics has meant that unconvicted gangsters and dubious candidates get elected to our legislatures. The Election Commission rightly pointed out in its affidavit to the Supreme Court that Parliament in the resolution passed in its special session in August 1997 has shown a great concern about the increasing criminalisation of politics. This exposes the hypocrisy of the political parties. Between the `Independence' resolution of 1997 and now, they have done absolutely nothing. On June 28, 2002, the Election Commission implemented the Supreme Court's order within the allotted time frame of two months. In what has been described as "a show of rare unanimity", 21 political parties rejected the Election Commission's directive and impliedly the Supreme Court's order — as if they have a choice in the matter. The Commission's directive is law unless set aside by the Supreme Court or superseded by legislation which itself may be unconstitutional.

After the Court's May 2 order, the government played a game of cat and mouse with the Election Commission. On May 14, the Commission wrote to the Government to amend Forms 2A to 2E of the Conduct of Election Rules 1961 dealing with nomination papers and included drafts of the revised forms. Delay being an effective political tactic, on June 19, the Law Ministry said it was considering the matter, informed the Commission that an all-party meeting was being convened of 8 July and asked it to approach the Supreme Court for an extension of the two-month implementation period. Within two days — on June 21— the Commission promptly and correctly informed the Government that it was for the latter to approach the Court. On May 28, the Commission issued its order requiring each candidate to furnish information to the Returning Officer on (i) past criminal convictions, (ii) pending criminal cases carrying a conviction of more than two years, (iii) assets, (iv) liabilities (especially public dues) and (v) educational qualifications.

The Supreme Court's judgment is based upon two premises: the citizen's right to know and of informed voting under Article 21 and the Election Commission's power and duty under Article 324 to superintend elections. Surely every voting citizen has a right to know background details about a candidate which cannot and should not be hidden from the electorate. If candidates are afraid of their own background, they have no business to enter public life. The Supreme Court has not invented all this out of its own juristic back pocket without grounding its judgment within the framework of the Constitution. There is sufficient precedent on both the right to know as well as the powers of the Election Commission. Way back in 1978, Justice Krishna Iyer in Gill's case (1978) spoke of fair elections being hijacked by `mob muscle methods' and subtle perversions. The Symbols Order case (1985) and the Electronic Voting case (1984), recognised the residuary powers of the Commission in the matter of elections. In the Common Cause case (1996), the Supreme Court judicially noticed that political parties spend over Rs.1,000 crores on elections and that "nobody discloses the source of the money". The Election Commission was reminded that it had the power to preserve the purity of elections. In the Vohra Committee case (1997), the Court noted the nexus between money, muscle and power at all levels of governance. The Election Commission did nothing. The stance of the political parties is twice cursed. Not only did they not enact remedial legislation, but they continued to sponsor dubious and dangerous candidates.

The Supreme Court has not changed the law on disqualifications even though it badly needs amendment. At present, the electoral law permits those chargesheeted for serious crimes to stand for elections and sitting MLAs or MPs to remain in office until their appeal is finally disposed of by the Supreme Court. Both the Law Commission and the Constitution Commission want this law altered so that those accused of serious crimes at the trial stage are disqualified from the electoral process. The Supreme Court would have been guilty of legislation had it altered this law. All that the Court has done is fill a lacuna not re-write a law. It has left it to people to make an informed choice to reject candidates in the light of their backgrounds. The bare minimum has been ordered. Details of criminality, debts (especially public debts) are relevant. There is nothing wrong in people being asked to disclose their assets and liabilities and those of their dependants. R.16 of the Civil Service Rules requires this of bureaucrats. Why can it not be so for their political masters? Information about educational qualifications do not disqualify the uneducated. Indeed, criminals, debtors and others can all still stand for elections. What the Supreme Court has done is to empower people to effectively vet candidates whom political parties have signally failed to vet. This will enrich the electoral process. If, after this, we still end up with dubious legislators, Indian democracy would have failed itself after being put in the right direction.

The Supreme Court has done no more than remind the Election Commission that the Constitution gives it wide-ranging powers. What is at issue here is whether these are "powers coupled with a duty to preserve the electoral process". Suppose Parliament had not enacted an electoral law at all, it would have been the Commission's duty to create rules. Likewise, in essential areas, where legislation does not exist and is necessary to cleanse the electoral process, the Commission has a constitutional duty to devise fair elections. It is a moot question whether Parliament can override these directions. Parliament cannot usurp the judicial power by directly sitting in appeal over Court decisions. More significantly, there is some doubt whether Parliament can make inroads into the inherent power of the Commission to conduct elections. In England, the Nolan Committee suggested disclosure of assets by MPs. This was approved by our Supreme Court in the Hawala case (1998) as a way to prove illegal gains in office by civil servants, Ministers or politicians seeking re-election.

The present controversy should not be construed as a fight between the Supreme Court and Parliament over who has the right to legislate. The Court has stayed within its limits to give directions to Election Commission on the latter's undoubted duties. What really matters is the merits of what the Court has ordered. Are its orders good for Indian democracy? The answer is `yes'. Indian democracy will be strengthened by knowing more about its legislators. The Government now talks of comprehensive electoral legislation. Disturbing the Court's electoral directions would disturb Indian democracy.

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