The Hindu : The President and the poll ordinance

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Saturday, Aug 24, 2002

Opinion

Opinion - Editorials

The President and the poll ordinance

THE PRESIDENT, A.P.J. Abdul Kalam's decision to seek clarifications on the ordinance amending the Representation of the People Act has served to further highlight the retrograde nature of this piece of proposed legislation. While the exact nature of the clarifications sought by the President is not clear, it is a safe guess that they relate to the controversial nature of some provisions which directly controvert the Supreme Court's May 2 judgment and militate against the very spirit of the Constitution. The President's decision follows a chorus of protest from independent and eminent citizens, some of who had directly petitioned Mr. Kalam and drawn his attention to the unconstitutional nature of the proposed amendments. The problem with the ordinance is that it was drafted specifically to nullify an Election Commission order which was based on a Supreme Court directive and which made it mandatory for candidates seeking election to come clean with their criminal past (if any) and declare their financial assets. The ordinance neutralises this in two ways — by making no mention of financial assets whatsoever and by watering down the stipulation on criminal antecedents. Ironically, the only provision in the original draft which lent it the pretence of being a measure to check criminality in politics — a clause on disqualifying those chargesheeted in very serious crimes such as dacoity and rape — was withdrawn because it met with fierce opposition.

Mr. Kalam's demand for certain clarifications on the ordinance puts the Government in a peculiar spot in two ways. First, at a general level, his decision is a major embarrassment for the Government, which attempted to negate the force of the (Supreme Court-directed) Election Commission order and then attempted to brazen it out with unconvincing explanations and poorly constructed defences. The only `saving grace' for the Government here is that the ordinance had the backing of more or less all political parties and so the embarrassment, in a way, is possibly somewhat diffused. Second, at an immediate level, however, the problem pertains to the Jammu and Kashmir Assembly election for which the notification has already been issued. After all, one of the principal reasons for rushing through with an ordinance was to see that the Election Commission's order on the declaration of financial assets and criminal records was rendered superfluous for this poll. Although Mr. Kalam has no option but to sign the ordinance in case the Government insists that it go through exactly the way it is, the implications of not having the presidential nod in time for Jammu and Kashmir is something that the Government will have to consider.

But one reaps what one sows and the Government's quandary is very much of its own making. Ever since the Supreme Court's judgment on May 2, the Centre's entire attitude suggested that all it wanted was to avoid its implementation. The choices before it now are stark. One, to stick stubbornly to its position and risk the perception that it is ramming through a measure which even the President has some principled concerns about. Two, to back down and be prepared to refashion the proposed amendments to the Representation of the People Act in a manner which is in tune with the spirit of the Supreme Court's judgment, which was based on the premise that the voter in this country has a fundamental right to know much more than he is told now about the candidates he is voting for or against. The fears entertained by the political class about the Supreme Court's directive are grossly exaggerated and the proper choice for the Government would be to graciously adopt the latter route. Anything short of this would amount to supporting legislation which is aimed at denying the enforcement of a fundamental right and therefore unacceptable.

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