JPs article published in Hindu - 27 Aug 2002

Time to Respond to People's Urges
-Jayaprakash Narayan
 

In our parliamentary executive system, it is exceptionally rare for a President to return a proposal or Ordinance submitted for approval.Despite this, the President was sufficiently concerned about the
provisions of poll reforms Ordinance to return it to the cabinet for reconsideration. President Abdul Kalam acted with exceptional diligence, courage, constitutionalism and statesmanship in returning the
Representation of the People (Amendment) Ordinance 2002. Sadly, the government chose to disregard presid The Supreme Court judgment of May 2 declaring the voters' right to know the antecedents of candidates as a fundamental right guaranteed under Article 19(1) of the Constitution, and a natural right flowing from the very concept of democracy has started a chain of events. In many ways, this judgment was a great opportunity for the political parties to set their houses in order, begin a process of
cleansing of political process, and enhance the legitimacy of our elections. Difficult political choices could ha Never before during peace  time have people at large been united so strongly on any issue over the past 50 years. Several surveys, opinion polls and ballots showed that an overwhelming majority of people - 95% or more - are in favour of full disclosure of criminal record and financial details of candidates. The parties too exhibited impressive unity of purpose in thwarting disclosures.

The parties certainly had one legitimate, though overstated, concern. The Election Commission's (EC) order of June 28 in pursuance of Supreme Court directive does provide in paragraph 14(4) for rejection of nomination for furnishing any wrong or incomplete information or suppression of any material information, if it is considered by the Returning Officer (RO) to be a "defect of substantial character". Though the EC's record of impartiality and fairness is well-established, the parties' concerns are unders The provisions for disclosure of criminal record as provided in the Ordinance are reasonable.  The Ordinance provides for disclosure of all pending charges framed by a magistrate in respect of offences punishable with imprisonment for 2 years or more, and of conviction for any offence provided the sentence of one year's imprisonment is awarded. Presumably, these disclosures of pending charges and convictions are in addition to what was proposed by the government for incorporation in the Conduct of Election "After section 33 of the principal Act, the following section shall be inserted, and shall be deemed to have been inserted with effect from the 2nd of May, 2002 namely:

"33B. Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information in respect of his election, which is not required to be disclosed or furnished under this Act, or the rule, made thereunder."

This provision in the Ordinance gives the game away. The real purpose of legislation is to substantially nullify the Supreme Court directive. There were occasions earlier when such course was adopted to nullify the Court judgments. For instance, insertion of explanation 1 under section 77 of the RP Act, 1951, and the Muslim Women's (maintenance) Act  were such hasty laws enacted to nullify Court judgments. However unwise those legislations may be, the Parliament's power to make those laws was never in doub But the new section 33B inserted by this Ordinance is specifically aimed at denying the citizens the fundamental right to know the antecedents of candidates seeking public office. The Court, after reviewing a series of earlier judgments, held as follows:

"In a democracy the electoral process has a strategic role. The little man of this country would have (the) basic elementary right to know (the ) full particulars of a candidate who is to represent him in Parliament
where laws to bind his liberty and property may be enacted.. Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters' speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. From the foregoing, it is clear that the Supreme Court traced the voters' right to know the antecedents of the candidates to the fundamental rights guaranteed under Article 19 of the Constitution. Disclosure of
assets and liabilities of elected legislators to the presiding officers, as provided in the Ordinance, is no substitute for disclosure by candidates before the voter can exercise his informed choice.

Article  13(2) of the Constitution explicitly prohibits making of any law which takes away or abridges the fundamental rights. On August 16, the Union Cabinet met and decided to send the Ordinance to the President, as the Parliament session has ended. Obviously, Section 3 of the Ordinance is a clear and unambiguous violation of the fundamental rights of citizens, and is inimical to the natural rights of voters flowing from the very concepts of democracy and people's sovereignty.

A Presidential act asking the cabinet to reconsider advice is no small matter. It is an admonition to refrain from a patently illiberal and unconstitutional path. The government's prestige and credibility would
have been enhanced, not diminished, if it heeded the President's caution. The legitimate concerns about the unchecked discretion in the hands of Returning Officers could have been easily addressed by a simple amendment of Rule 4 of Conduct of Election Rules.

This is the time to reflect deeply and seize the opportunity to pursue electoral reform agenda vigorously. As demonstrated over the past few months, public opinion is overwhelmingly in favour of disclosures, cleaner elections, funding reforms and systemic change. The disclosure issue is an opportunity, and not a threat, to the parties and politicians to break loose of the vicious cycle of criminalization, unaccountable money power, unbridled corruption and the perceived illegitimacy of the political
proces Now that the government reiterated its recommendation, the President was forced to promulgate the Ordinance. This is an Ordinance which is a direct consequence of the Supreme Court verdict. A part of this legislation is explicitly violative of fundamental rights as interpreted by the Court. There is no great urgency or public importance which necessitates the immediate promulgation of the Ordinance. Somewhat belatedly, the Congress party publicly supported full disclosures as ordered by the Court. The emer The matter will now certainly go to the Supreme Court on grounds of violation of fundamental rights as interpreted by apex court in its May 2 judgment. But it would be foolhardy for political parties to make this a battle ground for legislative supremacy. There may have been legitimate concerns about the judiciary sometimes overstepping its role. But interpretation of fundamental rights, and protecting citizens' rights is the vital responsibility of the Court. The political establishment will do well to ex...