update on SC Judgement
 
Dear Friends

This is in continuation to the earlier communications sent out in reference to the Supreme Court Judgment and subsequent developments.

We have contacted Election Commission (EC), and the Law Ministry (GOI) on the issue of making the candidate's affidavit disclosing criminal record, assets, liabilities and educational qualifications a necessary part of the nomination as per SC's Judgement dated 2nd May, 2002 (Civil Appeal no. 7178 of 2001). The position seems to be as follows:

1. The EC is fully willing and ready to comply with the SC's directive in letter and spirit.

2. The EC has two options before it:

    a. To make the affidavit a necessary part of the nomination, in which case non-filing of it will lead to rejection of
        nomination; and false declaration may invite an election petition challenging the election of the candidate.

    b. To merely prescribe an affidavit, which  is not a necessary part of the nomination, in which case non-filing of
         it cannot be a ground for rejection of nomination. False declarations may lead to subsequent prosecution, if at all,
         for breach of trust or cheating or such other provisions.

3. The EC's preference is for the former alternative, so that the spirit of SC Judgement is implemented. But there is a
     problem as they perceive it:

    a. Section 33(1) of the Representation of People Act, 1951 provides for filing of a nomination paper in the prescribed
        form.  (prescribed by rules)

    b. Section 36 of the Act deals with the scrutiny of nominations, and circumstances under  which the nomination  can
        be rejected.Quite understandably, section 36 (4) specifically states, " The returning officer shall not reject any
         nomination paper on ground of any defect which is not of a substantial character".

    c. From the foregoing and other provisions of  law, the EC feels that the affidavit can be a necessary part of the
        nomination only if the affidavit is regarded as a part of the  nomination. But the nomination form is prescribed by rule
        No. 4 under the law. And the rule-making power under the law Section (169) is vested in the " Central Government".

4. Based on the above logic, the EC prepared a draft rule and affidavit, and sent it to Law Ministry of GOI for
    incorporating it as a necessary part of the nomination.

5. The Law Ministry is now examining it. They may have their own concerns - for instance : can the SC "legislate" like
    this? Will  this set a precedent forcing executive to act on court directives? By the very nature of things, government
    responds to political parties' views too. And we all know the views of major political parties on this matter.

6. Therefore, our mailing campaign needs to be directed to Law Minister, Sri Arun Jaitley (Address: Union Minister for
    Law, Justice  & Company Affairs, 4th Floor, A Wing, Shastri Bhavan, New Delhi  -110 001; ajaitley@sansad.nic.in )

7. We pointed out to GOI that it is a party before the SC and that the court clearly states that the affidavit should be a
     necessary  part of the nomination. GOI understands the position and its implications. Obviously mobilizing public opinion
    will help persuade GOI to act quickly and decisively. All the activists and friends who are engaged in this campaign may
    kindly ensure the following:

    a. Mailing campaign addressed to Law Minister asking for the affidavit  to be made a necessary part of the nomination,
        as directed by the SC, and as proposed by the EC. A draft letter is enclosed for the consideration of activists and
        organizations.

    b. Also similar letters may be addressed to the Prime Minister, and leader of opposition so that the leading political
        parties understand the public mood.(draft attached)

8. There is a fair chance of our campaign succeeding in persuading the GOI to do the right thing.

9. If, for some reason, GOI doesn't act, hen the EC is willing and ready to prescribe the affidavit for candidates. Their
    present perception seems to be that the EC, on its own, cannot make the affidavit a necessary part of the nomination.

10. But perhaps there are adequate grounds to persuade the EC that the commission has the power under Art. 324 (as
        the SC  clearly pointed out), and the responsibility to apply Art. 324 to make the affidavit a necessary part of the
        nomination. Such an  order by the EC can only be challenged before courts, and when the SC judgement is so
        categorical, such a challenge will not     succeed. But this point should be argued ably by legal luminaries.

11. All friends, in particular friends from ADR, may consider obtaining legal opinions from reputed advocates including
      Ms.Kamini Jaiswal who did such an outstanding job of arguing the case before Supreme Court. If we present these
      opinions to the EC, there is a good chance of the commission responding favourably. The senior officials of the EC
      are fully aware of these perspectives.  At this point of time the EC is waiting for GOI's response.

12. Meanwhile the Andhra Pradesh State Election Commission (SEC) (in charge of elections to local governments under
      the constitution) has written to the CEC asking for a meeting of all SECs so that collectively they can decide on applying
      the SC judgment to the local elections also. While the SC Judgment is in respect of Parliamentary and State Assemblies,
      the logic, law     and facts apply to local elections fully. It may be a good idea if we can persuade the SECs to write to
      CEC. If SECs start exercising their powers under Art.243K and 253-2A, then our case will be strengthened further.
      In any case, local elections are     as important in our own quest for clean politics. The constitutional provisions under
      Art.243K and 243-2A (referring to SEC) are identical with those of Art. 324 (referring to EC)

I am sorry for this some-what long-winded and legalistic note. But such are the vagaries of law in our country! And again
this case demonstrates the need for rapid changes in tactics to suit the situation. I do hope that a large number of emails
and letters will go to the Law Minister, Leader of Opposition and Prime Minister.

With warm regards

Jayaprakash Narayan
National Cordinator

Lok Satta
401/408 Nirmal Towers
Dwarakapuri Colony, Punjagutta
Hyderabad - 500 082
Tel: 040 3350778/3350790
Fax: 040 3350783
E-mail: loksatta@satyam.net.in
url: www.loksatta.org
_____________________________________________________________________________________________

Sri Arun Jaitley
Hon'ble Union Minister for Law, Justice & Company Affairs
4th Floor, A Wing, Shastri Bhavan
New Delhi  -110 001

Email: ajaitley@sansad.nic.in

Dear Sir,

We welcome the Supreme Court judgement of 2nd May 2002 directing disclosure of details of candidates to the public.
We understand that the Election Commission has sent proposals to government of India to make such an affidavit a
necessary part of the nomination. We strongly urge you to use your good offices to ensure that prompt action is taken as suggested by the Commission.

We are confident that you will act to cleanse our political process in true spirit of democracy, openness and citizen
sovereignty.

Sincerely

Signature:
Name :
Address:
____________________________________________________________________________________________

To

Sri Atal Behari Vajpayee,
Prime Minister of India
(7, Race Course Road, New Delhi-110011
Tel. (011) 3018939, 3011156, Fax. (011) 3019545; vajpayee@sansad.nic.in)

Smt. Sonia Gandhi,
Leader of Opposition and President of AICC
10, Janpath, New Delhi - 110011 , (011) 3014161, 3014481; soniagandhi@sansad.nic.in)
 

Sri Arun Jaitley,
Minister of Law, Govt. of India
(A-44, Kailash Colony, New Delhi.
Tel. - 6478212, 6478358, Fax 6414587 ; ajaitley@sansad.nic.in )

Dear Sir/Madam

The Supreme Court in its judgement dated 2 May 2002 in the civil appeal no. 7178 of 2002 with the writ petition no. 294
of 2001 directed that information should be called for on affidavit from each candidate seeking election to parliament or a
state legislature as a necessary part of his nomination paper, furnishing therein information on the criminal record, assets
and liabilities of the candidate, his/her spouse and dependent members of family and educational qualifications.

I/We wholeheartedly welcome this landmark judgement of the Supreme Court and fully endorse it. Such a disclosure of
the candidates’ antecedents is long overdue in order to make our democracy more transparent, allow informed choice by voters, and the legitimacy of the political process.

We understand that the Election Commission sent a proposal to government of India incorporating the affidavit as a
necessary part of the nomination paper.

I/we urge you to use your good offices and ensure that such an affidavit is made a necessary part of nomination
immediately. Such a step will significantly help cleanse our electoral process. As a leader dedicated to the cause of clean politics and people’s right to know, I am sure you will act quickly to implement the judgement of the Supreme Court in
letter and spirit.
 
 

Signature:

Name:

Address:
______________________________________________________________________________________________