March 13 Supreme Court Judgment - NATIONAL CAMPAIGN FOR ELECTORAL REFORMS
Dear friends,
The long-awaited judgment of the Supreme Court has been delivered at
last.And as we all hoped, the apex court upheld our contention and held
the newly inserted Section 33-B of the RP Act, 1951 unconstitutional. The
impact of this is as follows:
1. The Parliament cannot now abridge the
right of citizens to know about the candidates.
2. The SC's earlier judgment (May 2)
and the consequent EC's notification (June 28) have prospective effect,
and will have to be enforced.
3. The criminal disclosures as provided
in the Ordinance and Act 77 of 2002 (replacing the Ordinance) are
inadequate. The
court directed that all convictions, charges framed and cases of which
cognizance was
taken should be revealed.
The law mandated disclosure of convictions involving a sentence of
one year
or more, and pending
charges (framed by a magistrate) entailing a sentence of imprisonment
of two years
or more. The candidates
will now have to reveal all criminal record as per SC judgment and
45. Disclosure of educational qualifications was
never taken up by NCER. However, that disclosure also is
mandatory now.
6. Non-disclosure (non-filing of affidavits)
will clearly be a ground for rejection of nomination.
7. The EC's notification provided for
rejection of nomination for furnishing any wrong or incomplete information
if it is considered
to be a defect of substantial character (para 14(4)).
We do not have judgment copies,
but we understand
that two of the three judges upheld it, while the third judge doubted if
it could be enforced.
This issue needs
to be clarified. In any case, the chances of Returning Officer having the
wherewithal to verify
the affidavits
are slim.
The news reports indicate that an all-party meeting is proposed on the judgment. As the Constitution stands, Parliament cannot now undo this verdict except through a constitutional amendment, which would be unthinkable. Only a larger constitutional bench at a future date may review the extent to which fundamental rights under Art 19(1) can be applied in such cases.
Obviously we are all delighted. Success has many fathers. We owe our
debt of gratitude to the original petitioner, ADR and Ms Kamini Jaiwsal
for initiating the process. Mr PP Rao, Justice Rajinder Sachar, Prashant
Bhushan and Sanjay Parikh did an outstanding job and we all remain forever
indebted to them for opening up this avenue for reform. The media
played
a magnificent role. Millions of Indians expressed themselves forcefully
and mobilized public opinion. Many, many individuals and organizations
stoo But the question is, what do we do now. We had a meeting of NCER in
Delhi on 6th March. Briefly the following need to be addressed on the issue
of disclosures.
1). Follow up with the EC on disclosures issue to
ensure practical guidelines and effective implementation, and wide
dissemination of information to voters in all future elections.
2). Follow up with State Election Commissions for issuing
similar notifications in respect of elections to local governments.
But disclosure is only a small but significant step in the large agenda of political and governance reforms. We need to pursue a few vital short-term goals.
1). Making voter registration accessible and simple with post office as nodal agency. Both the EC and the Postal department are in agreement in principle. We need to pursue it vigorously and ensure fair and clean electoral rolls and easily accessible and verifiable mechanism for voter registration. Current evidence suggests that a high percentage of errors (up to 15% in rural areas and 40% in urban areas) in electoral rolls are undermining our electoral verdicts.
2). Polling irregularities are rampant despite voter
identity card ( and other forms of identity) being mandatory. Our helpline
in Kolkatha in 2001 Assembly election showed that about 40% of the complaints
were to the effect that somebody already voted
in their names, though voter identity card was mandatory! Voter
identity is not an adequate safeguard against collusion or coercion. We
have to devise other methods and get them implemented.
a). Making
automatic repolling mandatory if tendered votes exceed, say
1 or 2 percent of votes
polled, and giving wide publicity to tendered vote process.
b). Using
thumb print or other distinctive identification criteria to prevent false
voting by impersonation.
3). Political funding reform law: For long,LOK SATTA,
along with others, has advocated funding reform. Many such
proposals have been incorporated in a Bill before Parliament now. It
was introduced in March 2002, and circulated to all of you by email earlier.
It has several positive features including repeal of explanation 1 under
section 77 of RP Act, tax exemptions for political funding, compulsory
auditing and disclosure, indirect public funding etc. We need to strengthen
the Bill and persuade participation.
45). National Judicial Commission is an idea whose
time has come. The political parties and several eminent jurists have recommended
such a commission. We should put together a team of experts to prepare
alternative models for public debate, so that
judicial independence and accountability are effectively reconciled.
6). LOK SATTA has drafted a Bill for establishment of local courts at low cost for speedy justice. It is a very powerful instrument with all winners and no losers. Very shortly I will be circulating this draft Bill. India has 10 judges per million population, as opposed to 110 in OECD countries. We have 25 million cases pending in all courts. The Bill we propose provides for honorary magistrates for every 25000 population, at very low cost, using local language, adopting summary procedures, holding could...
7 These are some of the immediate activities we can take up. Obviously, we have to enlarge our agenda to include key governance reforms in addition to electoral reforms.
Finally we should move towards larger systemic reforms like proportional
representation and separation of powers at state
and local levels.
A few concluding comments. This struggle should be viewed in perspective.
The following issues may have to be kept in mind by all of us.
1. This is not a people vs politicians struggle.
We need politics. The only antidote to distortions in politics is
better and
more politics.
Parties are doing a tough job against heavy odds to sustain democracy.
They need to be strengthened.
Revulsion of politics is
a dangerous response.
2. This is an opportunity, not a threat to parties. They can take advantage of this situation and cleanse the system. They can break out of the shackles of criminals and moneybags at constituency level.
3. This is not a turf battle between legislature and judiciary for supremacy. No sane democrat disputes the supremacy of elected legislature in law making. In this case, the Supreme Court interpreted the Constitution and upheld fundamental rights, which are its duties. There is no jurisdictional struggle here. It is possible that elsewhere certain judicial decisions are seen as usurpation of executive or legislative authority. But this is the wrong case and time to fight that battle.
4. Finally, our politicians are not villains.
They are victims of a vicious cycle. They are often at the mercy
of local political lords whose writ runs. What we need is a reform
process which changes the nature of power game, and allows honesty to survive
with power. But there are other organs of state, which require
to be reformed too. The crisis is systemic. Decentralisation,
judicial reforms and instruments of accountability and empowerment have
to be addressed effectively and expeditiously. The battle
for reclaiming our republic has just begun. A lot more remains
to be done. The Court has opened many vistas. Let us explore
them to the fullest. Meanwhile let us celebrate the vitality of our
democracy and the strength of our institutions, which make peaceful transformation
possible.
With warm regards
Jayaprakash Narayan
National Coordinator