It needs to be reiterated that the judgement is not about disqualifying people from contesting elections, it is about disclosure of the criminal background of the candidates, if any.

India is often referred to it as a vibrant and vigorous democracy. This might well be justified compared to a large number of other countries that gained independence from colonial rule around the same time. There is however reason to be concerned about the health of our democracy and its future. Just because we have elections regularly, some might even say far too often, does not necessarily mean that we have an effective democracy. One view is that the kind of elections we have are the very anti-thesis of democracy. Following excerpts from a letter written to the editor of one of the newspapers in Ahmedabad on September 9, 1999 soon after the elections, testifies to this.

“Thank God! The vulgar cacophony, throwing of abuses and trading of charges by political parties with each other is over.

“All political parties have made narrow-minded, extremely bigoted ... statements against each other as if they were in the race to prove who was more conservative and backward and who would be the first to destroy this nation by such ideologies, as Taliban has done for Afghanistan!

“No wonder people showed fatigue and displayed lack of enthusiasm in the type of democratic exercise now repeatedly held to elect the begging candidates so that on being elected they can sit in power and loot us, and amass wealth and power for their dynasties.

“Their slogan seems to be, ‘Cast your vote in favour of one whom you want should amass wealth!’

“Are our aspirations being fulfilled, even minimum security of life and basic services like food, water, shelter being met by the system created?

. . .

“What democratic values these bunch of self-appointed leaders will propagate with such narrow-minded approaches. Our democracy ends the day we cast our vote.”

The Election Process

If democracy has anything to do with freedom – and freedom with responsibility – then the electoral system might well be the very heart of democracy. If this sounds like an over statement let me try and sketch briefly what all does the electoral system include. It determines who can or should be allowed to vote. When should electoral rolls be prepared, revised, and how? The formation, func-tioning including funding, etc. of political parties is also an integral part of the electoral system. Included also is the basic question, who can contest an election. Then comes the actual conduct of the election which is what is most associated with the electoral system. On what basis is the winner of the election decided is another key element of the electoral system. These are some of the pre-election and during election activities. There is a whole range of post election activities during which the outcome of the electoral process are managed, such as post election disputes, election petitions, formation of the government, and subsequent functioning of the government including issues such as defections. This illustrative list indicates the critical role of the electoral system in ensuring an effectively functioning democracy.

The Current Situation

The widespread and increasing disenchantment with politics and politicians is much too widely known to require any substantiation. The way our legislatures, Lok Sabha, Rajya Sabha, and State assemblies, function does not make us proud. One of the major causes for the unruly and unproductive functioning of the legislatures is the quality of people who find their way into the legislatures. For example it was reported in the media that more than half of the MLAs elected to the current state assembly of Uttar Pradesh had significant criminal records. When the recognised political parties were not able to form a government because no single party or coalition had more than half of the MLAs supporting it, one of the newspapers went to the extent of saying that if all the MLAs with criminal background decided to get together, they could com-fortably form a government of their own!

It is quite common to put almost the entire blame for the current state of affairs on the so-called political class in the country. But all those who would have us believe that all that is wrong has been caused by the political class seem to overlook the fact that the political class does not exist or develop in isolation or in a vacuum, but that it emerges and evolves out of the society at large. Therefore the society at large, of which all of us are a part, cannot escape responsibility for the existing state of affairs. While the so-called political class cannot be assigned the complete responsibility for the current state of affairs, they cannot be entirely absolved of it either. As a student of human behaviour, I believe that a substantial portion of the behaviour of the political class can be explained as a logical response to the broader social system within which they have to operate. And the electoral system is a major and immediate part of that broader social system. Consequently, one way to change the behaviour of the political class would be to change the system in which they have to operate and to which they have to respond. This is where electoral reforms become important.

While token attempts at reforming the electoral system have been made from time to time over the last many years particularly whenever it suited the party in power, there has been hardly any attempt at making any significant and substantial changes in the electoral system. There have been any number of reports and recom-mendations on what needs to be done. Some of the significant examples are the Indrajit Gupta Report, the Dinesh Goswami Report, the 170th Report of the Law Commission of India on Electoral Reforms, and the Recommendations of the National Commission to Review the Working of the Constitution (NCRWC) submitted earlier this year. The remarkable fact however is that almost none of the recommendations of these learned and painstakingly prepared reports have been implemented.

The Dilemma

Not only have there been no serious attempts to reform the electoral system, some of the actions that have been taken seem to be in the opposite direction. A prime example relates to election expenditure. It has been more than 25 years since Explanation 1 was inserted in Sub Section (1) of Section 77 of the Representation of People Act which enabled unaccounted money to be brought into the election system by maintaining that expenditure incurred or authorised by any one other than candidate, including the political party, and friends and supporters of candidates, will not be counted as the election expenditure of the candidate. There has been widespread comment on this issue for more than 25 years now but Parliament has not found time to delete Explanation 1. Why? Possibly because it is convenient and comfortable for the politicians to have a system which can be manipulated. Big money is brought into the elections under the garb of Explanation 1 (which in the opinion of the Supreme Court has removed even the “fig leaf to hide the reality” of the impact of big money on the outcome of elections). Big money is contributed by those elements who look for favours and paybacks in kind from the politicians after they get elected. And the politicians are an active and willing party to the arrangement. This is why it seems clear that left to the politicians, significant reforms of the electoral system are unlikely. Given this stalemate what does one do?

Citizens’ Action

There is no option but for concerned citizens and civil society groups to create conditions where politicians will have no choice but to make changes. Examples of a few such initiatives exist, such as the work of the Mazdoor Kisan Sangharsh Sangathan (MKSS) led by Aruna Roy resulting in the passage of the Right to Information Act in Rajasthan. Another initiative which has been in the news recently is by the Association of Democratic Reforms. This group filed a Public Interest Litigation in the Delhi High Court in December 1999 requesting the Court to direct the Election Commission to:

1. Amend the nomination form which a candidate has to fill for contesting an election, so that it asks the candidate whether there are any criminal cases pending against him/her at the time of filing the nomination; and if there are, to provide details of such cases. It was believed that this could be done under the Conduct of Election Rules without the need to amend any laws and therefore Parliament need not come into the picture.

2. Collate the above information provided by the candidates and make it available to the public on request, and to the print and electronic media for wide dissemination.

The petition was guided by the following:

1. A voter interested in finding out whether there are any criminal cases pending against any of the candidates in her/his constituency, should be able to get this information without much difficulty.

2. There was, and still is, a firm belief in a voter’s right to choose whichever candidate s/he wants to vote for. After finding out the above information, in case one wants to find it out, if a voter still wants to vote for a particular candidate who may have several criminal cases pending against him/her, that choice of the voter must be respected.

The Delhi High Court announced the judgement in November 2, 2000 and directed the Election Commission to make even more information available to the voters than was requested in the original petition.

The Union of India appealed against the High Court judgement in the Supreme Court although the High Court had issued directives only to the Election Commission and not to the Government of India. Several political parties such as the Indian National Congress and the Samata Party became “intervenors” to the appeal and also presented their views, generally against the High Court judgement. The Supreme Court pronounced its judgment on May 2, 2002 directing the Election Commission to call for the following information from candidates in exercise of its power under Article 324 of the Constitution of India by way of an affidavit to be filed by the candidate along with his/her nomination form.

“(1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past, if any, whether he is punished with imprisonment or fine?

(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.

(3) The assets (immovable, movable, bank balances etc) of a candidate and of his/her spouse and that of dependants.

(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues.

(5) The educational qualifications of the candidate.”

The Supreme Court gave the Election Commission two months to implement the judgement. Considering that “the most efficacious manner of implementing the judgement and the order of the honourable Supreme Court” was through the amendment of the nomination forms. The Election Commission wrote to the government on May 14, 2002, for amending these forms. The government responded on June 19, 2002 saying that the amendment of forms could be done only after developing consensus amongst political parties and for that an all party meeting had been convened on July 8, 2002. The government also requested the Election Commission to approach the Supreme Court to seek further two months time for implementation of the judgement. The Election Commission responded to the government on June 21, 2002, saying that if the government thought it necessary to seek an extension from the Supreme Court, it should approach the court directly!

Since there was no extension of time by the Supreme Court, the Election Commission issued an order on June 28, 2002, implementing the Supreme Court judgement.

This seemed to create a flutter in the entire political establishment. In the all party meeting on July 8, 2002, twenty-one political parties representing the entire political spectrum, in a rare show of complete unanimity, decided that the Supreme Court judgement and the Election Commission’s order could not be allowed to be implemented. The all party meeting unanimously decided to introduce a Bill in the monsoon session of parliament to appropriately amend the Representation of People Act, to prevent implementation of the Supreme Court judgement and Election Commission’s order.

With remarkable and almost unprecedented alacrity, the Law Ministry drafted a Bill for amending the Representation of People Act and circulated it amongst political parties on July 15, 2002 asking for their comments with the specific intention of introducing and getting the Bill passed in the monsoon session of parliament.

The Draft Bill

Several provisions of the Bill create doubts about whether the Bill is really intended to reform the electoral system or to prevent any improvement of the system.

The Bill proposes that “a person against whom charges has been framed in two separate criminal proceedings concerning heinous offences. at least six months prior” to the filing of the nomination paper, will be disqualified. Heinous offences specified in the draft Bill include murder, rape, kidnapping or abducting in order to murder or for ransom, dacoity and dacoity with murder, waging war against government of India. One wonders why is it that a person with one heinous crime is suitable to become a law maker, and committing a murder or rape three or five months before filing the nomination is not serious enough.

Another issue worth considering is: Shouldn’t the voters know if candidates seeking their votes have been involved in white-collar, financial crimes such as embezzlement of crores of public funds?

Arguably the most significant provision in the draft Bill is one which maintains that “no candidate shall be liable to disclose or furnish any information which is not required to be disclosed [under the proposed bill]. Notwithstanding anything contained in any judgement, decree or order of any court or any direction, order or any other instruction issued by the Election Commission.” It is clear from this that while talking about disqualification, the draft bill appears to be against disclosure. The reason for this apparent aversion to disclosure is not hard to seek. It finds mention at two places in the draft Bill which is that the amendments to the Represen-tation of the People Act proposed in the draft Bill “shall be deemed to have come into force on the 2nd day of May, 2002”. It is not a mere coincidence that the “2nd day of May, 2002” also happens to be the day when the Supreme Court judgment was delivered.

While the alacrity shown by political parties and the government to deal with what has been projected as judicial interference in legislative matters is commendable, what seems to have been lost sight of is that Supreme Court had no intention whatsoever to interfere in legislative matters. This is clear from a reading of the Supreme Court judgment in which the Court has explicitly accepted that only the legislature can make laws. The Court however has also said that “if the field meant for legislature and executive is left unoccupied detrimental to public interest, this Court [has] ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest [italics added].” The Supreme Court also said that what it was doing was “to fill the void, in the absence of suitable legislation” pending action by the legislature. The court has held that it is a “constitutional obligation” of the Supreme Court as well as the Election Commission “to provide a solution till such time the legislature acts to perform its role by enacting proper legislation to cover the field”. The Supreme Court has also acted in accordance with the voters’ right to information, observing that “the voters are required to be well informed and educated about contesting candidates so that they can elect proper candidates by their own assessment”.

It needs to be reiterated that the judgement is not about disqualifying people from contesting elections, it is about disclosure of the criminal back-ground of the candidates, if any. The Supreme Court judgment and the order of the Election Commission require that the candidates wanting to contest elections for Parliament and State Assemblies declare, by way of an affidavit to be filed along with the nomination paper, details of criminal cases pending against them, if any; their assets and liabilities including those of their dependents; and their educational qualifications. This information is to be made available to voters to enable them to make an informed choice while casting their votes. Neither the Supreme Court judgement nor the Election Commission’s order say that any candidate will be disqualified just on the basis of the information provided on the affidavit so long as the information provided is correct. Voters will have the freedom to vote for a candidate with a criminal record if they decide to do so.

It is evident from the above that changing the electoral system is not going to be easy but it must be done if democracy has to be preserved and strengthened. Concerned citizens and civil society groups will have to work really hard and in a sustained manner to achieve anything worthwhile. Being committed to freedom with responsibility, all Liberals need to contribute to this.

Mr. Jagdeep S. Chhokar is a life member of the Indian Liberal Group and a founder member of the Association for Democratic Reforms. He is a professor, and currently Dean and Director In-charge, at the Indian Institute of Management, Ahmedabad.
He can be contacted at chhokar@iimahd.ernet.in