People's Democracy
(Weekly Organ of the Communist Party of
India (Marxist) No. 27
July 14,2002
(Weekly Organ of the Communist Party of
India (Marxist) |
Vol.
XXVI No. 27 July 14,2002 |
ELECTORAL REFORM MEASURES
CPI(M) Stand On SC Judgement, EC Order
S Ramachandran Pillai
AN impression has been created by a section of the media that the Supreme Court and the Election Commission have tried to combat criminalisation of politics and to make elections more free and fair but the political parties, including the Left, have sabotaged it. In this context, it is necessary to explain the position of the Communist Party of India (Marxist) on the judgement of the Supreme Court and the order of the Election Commission in order to avoid misinformation and misunderstanding.
In order to have a proper appreciation of the facts and principles involved, it is relevant to examine a brief history of the case and the content of the Supreme Court judgement. An organisation called `Association for Democratic Reforms' filed a writ petition before the High Court of Delhi for direction to implement the recommendations made by the Law Commission in its 170th report. The High Court passed a judgement directing the Election Commission to secure to voters the following information pertaining to each of the candidates contesting election to the parliament and to the state legislature and the parties they represent.
"1. Whether the candidate is accused of any offence(s) punishable with imprisonment? If so, the details thereof.
2. Assets possessed by a candidate, his or her spouse and relations?
3. Facts giving insight to candidate's competence, capacity and suitability for acting as parliamentarian or legislator including details of his, her educational qualifications.
4. Information which the election commission considers necessary for judging the capacity and capability of the political party fielding the candidate for election to Parliament or the state legislature."
The Union of India filed an appeal before the Supreme Court challenging the order of the Delhi High Court. Some political parties also entered appearance. Another organisation called `People's Union for Civil Liberties' have filed a writ petition before the Supreme Court to implement some of the recommendations of the 170th report of the Law Commission of India.
SUPREME COURT’S DIRECTIONS
The Supreme Court passed a judgement on May 2, 2002 on this matter and gave the following directions to the Election Commission:
"The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to parliament or a state legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
The Supreme Court also held that the Court have ample power to direct the Election Commission as there is no suitable law covering these aspects.
ELECTION COMMISSION’S ORDER
On the basis of the direction of the Supreme Court, the Election Commission passed orders on June 28, 2002. Apart from providing a format of the affidavit to be furnished by a candidate alongwith the nomination paper, the order also gave powers to returning officers to reject a nomination paper also on the following grounds:
"(4) Furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the returning officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him:
Provided that only such information shall be considered to be wrong or incomplete or amounting to suppression of material information as is capable of easy verification by the returning officer by reference to documentary proof adduced before him in the summary inquiry conducted by him at the time of scrutiny of nominations under section 36 (2) of the Representation of People Act 1951, and only the information so verified shall be taken into account by him for further consideration of the question whether the same is a defect of substantial character."
CPI(M)’S OBJECTIONS
The Communist Party of India (Marxist) has serious disagreements and objections against the approach of the Supreme Court, their directions and the order of the Election Commission.
The order of the Election Commission seeks details from the candidates in the form of an affidavit about the following matters:
As political activists, many candidates will have convictions for breaking prohibitory orders, organising demonstrations, rallies, pickettings etc. In many places, political activists belonging to the opposition parties were implicated in false cases. No distinction is made between political offences and criminal offences. Considering this and other factors, only convictions for certain serious offences and corrupt practices in elections are made disqualification in the Representation of People Act, 1951. There is no need to ask for details other than such serious offences already provided as disqualification in the Representation of People Act, 1951. No meaningful purpose will be served by calling for details of all convictions and all acquittals even for minor offences during the entire life of a candidate. It is practically impossible, in the case of many candidates, to give all details about all convictions and acquittals as normally people don't maintain such records. The Party has no objection in seeking information regarding the charges framed or cognisance taken by the court about an offence punishable with imprisonment with two years or more against a candidate, six months prior to the date of filing the nomination.
The constituent assembly had discussed and negatived the requirement of possession of assets and educational qualifications to contest an election. Furnishing of information regarding assets and educational qualifications of a candidate is not at all relevant for contesting elections and even for casting votes. Voters are not influenced by the wealth, or, the educational qualifications of a contesting candidate. Voters are mainly interested in policies, principles, integrity, honesty and the past record of the candidate in such matters. The affidavit does not help the voters in assessing the candidate on such qualities.
It should be made compulsory when someone is elected an MLA or MP, for that person to declare his or her assets, assets of his or her spouse and dependants to a designated authority and it should be made public. The Party also stands for submission of annual statements of assets of the elected representatives, his or her spouse and dependants. This may, to a certain extent, help to curb corruption. If any asset is found earned through corrupt practices, it should be confiscated and forfeited to the government.
There are specific provisions in the Representation of People Act, 1951 regarding the powers of returning officers for rejecting a nomination paper. The Election Commission cannot provide any additional power to returning officers for rejecting a nomination paper other than what have been provided in the Representation of People Act, 1951.
The present order of the Election Commission can be misused by some returning officers. The order of the Election Commission seeks all details regarding convictions, acquittals, assets, dues, educational qualifications etc and any improper record obtained from any pliable officer or authority or agency by a rival candidate can become an instrument in the hands of certain partisan returning officers for rejecting a nomination paper.
Instead of making election free and fair, the order giving additional power to returning officers for rejecting a nomination paper can make it a farce. The returning officer should not be given such power for rejecting a nomination paper other than what is provided in the Representation of People Act, 1951. Instead of giving additional power to reject a nomination paper to the returning officer, any concealment of false declaration in the affidavit can be made a ground for criminal prosecution or an election petition.
The process of reform of electoral laws is a continuous and ongoing process and many amendments in election laws have been made since 1951. Many committees have gone into the question of electoral reforms and have made many valuable suggestions. The Joint Parliamentary Committee on Amendments to Election Law headed by Shri Jagannath Rao (1971), the Tarkunde committee (1974), Dinesh Goswami committee (1990), V R Krishna Iyer committee (1994), Indrajit Gupta committee (1998) are some of the important committees that have considered this question.
The Election Commission also submitted many recommendations on electoral reforms. This, apart many political parties have also made many proposals for reforms. The 15th Law Commission made an extensive study of the Representation of People Act, 1951 and submitted its 170th report regarding reform of the election system. Some of the major recommendations for reform mooted in this report are: partial introduction of list system in addition to the existing First-past-the-Post system under which 25 per cent seats of the maximum strength of Lok Sabha and the existing state assemblies are to be filled through the list system; abolition of the concept of `split' and `merger' in the Tenth Schedule and making membership of a particular party, on whose ticket a member gets elected, mandatory till the dissolution of House; disqualifying a member on the basis of charges framed under any of the offences mentioned in sub-station (1) of section 8 of Representation of People Act, 1951; and monitoring of expenditure of political parties to check excessive expenditure on elections. In this connection, the commission emphasised on the need both of maintenance and disclosure of accounts by political parties with regard to receipts and expenditure.
At present, three bills for amending the Representation of People Act, 1951 are under the consideration of the parliament as part of the electoral reforms.
As per the scheme and division of powers between legislature, executive and judiciary in the Constitution, the power to legislate is the prerogative of the parliament. The Election Laws are important for ensuring elections free and fair and to reflect the will of the people. Amendments in Election Laws have been made by the parliament based on the past experience in elections and the new issues that have emerged.
PARLIAMENT ALONE IS COMPETENT
Parliament is the only competent body, in a democratic system which can legislate on such matters. Any usurpation either by the executive or by the judiciary in the legislative powers of the parliament, particularly in Election Laws, will create distortions and mar the electoral process. The Supreme Court and the Election Commission can bring their views and suggestions to the notice of the legislature for its consideration. It is the people who have the paramount power in a democratic polity who should be encouraged to intervene if anybody feels that there is delay or procrastination in any such matters. Any attempt to show impatience and overstepping legislature or curbing its powers is nothing but judicial encroachment and that should be resisted by all democratic forces. There are constant complaints about the delays in the disposal of cases by the judiciary. Would it be conducive to the maintenance of rule of law, if some extraneous body usurps the powers of the judiciary to avoid such delays?
The CPI(M) has been consistently criticising the executive for their delay in bringing appropriate legislations for electoral reforms. But such delay cannot be made the grounds for the judiciary, or, the Election Commission to usurp the powers of the legislature and to add new provisions in the electoral laws. Such attempts will only weaken the democratic system.
