The Hindu : The proposed electoral law

Online edition of India's National Newspaper
Friday, Jul 26, 2002

Opinion

Opinion - Leader Page Articles

The proposed electoral law

By Rajeev Dhavan

The proposed bill is a political fraud designed to tease lawyers, frustrate activists, short-change Indian democracy.

RESPONDING TO the Supreme Court granting electors the right to know about prospective candidates, the politicians have struck back. The Election Commission implemented the Supreme Court's order to provide information to the voter about candidates on assets, debts and criminality. The proposed electoral reform bill of 2002 is a halfway house. It is a political fraud designed to tease lawyers, frustrate activists, short-change Indian democracy and create a political divide amongst politicians who still feel that the Supreme Court's changes go too far and come too soon. The bill deals with four inter-related aspects: disqualification, information, penalties and reversing the judicial power. Drafted by politicians for politicians, the bill is a monumental example to persuade Indian democracy to walk in fear of itself. It is a half-baked measure. It takes a tentative step forward; and, then, loses its public purpose to protect politicians rather than strengthen Indian democracy.

The present Indian law on disqualification lists a number of offences which invite disqualification only on the conviction of the candidate. Convictions take a long time. Persons charge-sheeted and whose cases were pending for years became politicians. People accused of murder, rape, socio-economic offences and serious crimes win elections without impediment. The bill of 2002 makes a radical change in India's disqualification law. The Law and Constitution Commissions had suggested that a `conviction' was not necessary to invite disqualification and that a person accused of disqualificatory crimes could also be disqualified from elections. Who is an accused? According to the proposed bill, for electoral purposes a person becomes an accused when a court, having taken everything into account, takes cognisance of the offence and not just when an FIR or police report is filed. Frivolous FIRs and doctored police reports will not do. The judicial mind will determine the prima facie case. The proposed bill takes a leap forward in accepting that charged, and not just convicted, candidates can be disqualified. But after this, Section 8-B in the new law falters.

The first flaw is that disqualification for charged offences is limited to dacoity, murder, kidnapping, waging war, drug and terrorist offences which it calls "heinous offences". But, why does the disqualification at the charge stage not extend to all the disqualificatory offences mentioned in the existing Section 8. The existing list of disqualificatory offences is not limited to the Government's new list of "heinous crimes" but to crimes relating to communal incitement, electoral offences, rape, cruelty to a wife, promoting communal ill-will, untouchability, customs offences, banned organisations, foreign exchange, drugs, terrorism, crimes against places of worship, profiteering, food adulteration, dowry, sati and crimes carrying a punishment for more than two years. Since these are electoral offences inviting disqualification on conviction, why should the disqualification not be made at the charge stage for all these offences? One reason could be that politicians want to be free to commit communal, gender and socio-economic offences.

The second flaw is that the proposed disqualification at the charge stage will be attracted only if there are two separate criminal proceedings going on. Thus, an alleged rapist must commit rape twice to be disqualified? Or, wage war and commit rape, murder or dacoity? Or dacoity and murder? Or, each crime must be committed twice. The logic of "two" not just "one" is devastatingly absurd. No less illogical is the condition that the charge must exist at least six months before nomination. Suppose a charge of murder or rape is drawn one month before nomination. Why should it not be included as falling within the regime of disqualification? The correct rule should be to include cases where a court has drawn charges one to three days before nomination.

Apart from disqualification, a part of the bill also relates to the information that has to be given to the voter. The proposed bill limits this information to the crimes which carry a conviction of two years or more. Surely, it is more consistent to ensure voter information for all those communal, gender and socio-economic offences for which a person can be disqualified. A small amendment is needed that information be given about all disqualificatory offences contained in the existing Section 8 covering all the undesirable offences which invite disqualification. These offences are relevant to elections and the voter has a right to know. But the proposed right to information clause (Section 33B) also suffers because the other information ordered by the Supreme Court and the Election Commission relating to assets, debts and liabilities (including public debts) and education have been struck out. Politicians obviously do not want to declare financial and such assets because they want to earn while in office. Nor do they want to reveal what they owe even by way of taxes or whether they can read the bills and reports laid before Parliament. These are only information provisions. The right to know is rooted in the guaranteed fundamental right to life and liberty (Article 21). Fundamental rights cannot be so churlishly ignored. The proposed bill invites separate penalties under Section 125A for failing to give and concealing information and giving false information. Failures relating to the "heinous offences" of waging war, dacoity, rape, murder, drugs and terrorism carry a punishment of three years, while other failures to provide information relating to offences (with punishments of two years) carry a punishment of only six months. Why this distinction? Surely the electoral fraud of not supplying information has uniform repercussions and should carry the uniform deterrent punishment of three years. But, the defensive reason for making the punishment less in the so-called `non-heinous' cases is that if the punishment is more than two years, politicians will be disqualified, if they violate the information law under the existing Section 8. The new proposal is a self-protective device. Politicians who violate the information requirement will be free to violate it again.

Under Section 33A of the proposed bill, the Supreme Court judgment has been reversed. This cannot be taken lightly. Under the doctrine of separation of powers, Parliament cannot usurp the judicial power by sitting in appeal over it. Parliament can change the basis of the law. But, in the new electoral bill, there is a naked usurpation of judicial power. The Supreme Court had declared information for the voter on assets, debts and education and, more widely, for criminal offences as part of Article 21. Parliament cannot defy a fundamental right to know. Nor can it sit in appeal over the Supreme Court. These are not matters to be taken lightly and go to the root of governance.

The proposed amendments are clever but not convincing. They take a small step forward, but are flawed. They are by and for politicians to protect them. India's fragile democracy needs to be strengthened not undermined.

Printer friendly page
Send this article to Friends by E-Mail

Opinion

Stories in this Section

First steps on relief

Gubernatorial office as reward

The proposed electoral law

Cuba, America and democracy

A challenge to the diplomatic apparatus

Deteriorating culture

It was racial profiling