An ‘Utopian’ India: FREE & FAIR Elections
“If the people who are elected are capable and men of character and
integrity, then they would be able to make the best even of a defective
Constitution. If they are lacking in these, the Constitution cannot help the
country. After all, a Constitution like a machine is a lifeless thing. It
acquires life because of the men who control it and operate it, and India needs
today nothing more than a set of honest men who will have the interest of the
country before them…”[1]
Strange though it may seem, the
words of Dr. Rajendra Prasad still holds true. Representative government
reflects the path on which our constitution framers wanted us to tread. People,
who were considered the ultimate sovereign were supposed to choose the
candidates through a system of voting that would ensure that only the most
worthy candidate would be elevated to the pedestal of a law maker. In fact, the
Apex Court has in very clear terms held that our country being a Sovereign
Democratic Republic is unquestionably a part of the basic structure of the
Constitution.[2]
In order to ensure free and fair
elections, the Parliament enacted the Representation of the People Act, 1951
which inter alia provides
qualifications and disqualifications for membership of Parliament and State
Legislatures. The rationale for such legislations is to create a systematic
framework conducive to free and fair election.[3]
The title of the paper might seem amusing to many, but please be informed that
the Supreme Court bested me in terms of reaching the above conclusion.
In K Prabhakaran v. P. Jayarajan,[4]
the court stated that those who break the law should not make the law. The
court went on further to state that persons with criminal background do pollute
the process of election as they do not have many a holds barred (emphasis).
To quote Dr. Prasad again, he opined that a law giver needs to be a man of
character.[5]
Amusing Trends
Despite the best intention of the
Constitution framers, the link between criminals and politics remained ever
existent. There was interesting change in the 70’s when instead of politicians
having suspected links to crime syndicates, as the case was earlier, it was
persons with extensive criminal backgrounds who began entering politics.[6]
The problem had become so endemic that criminals were seeking direct path to
power by becoming minister, legislators etc. According to the Association for
Democratic Reforms, 18% of the candidates contesting either National or state
elections have criminal cases against them. In half of the above cases, the
charges were of serious nature that includes murder, attempt to murder, rape
etc.[7]
In the previous Lok Sabha (i.e. 2009 - 2014), 30% of the sitting MPs have criminal cases pending
against them.[8] The
situation is similar across states with 31% of the sitting MLAs with pending
cases.
From the startling figures, it is
clear that criminals forms a integral part of today’s polity. For reasons of
their muscle power, cash stock, and a obeying cadre, a criminal may stand a
better stand to procure a ticket, even win an election, vis-à-vis a candidate
coming from a clean background.
Existing Legal Framework & Policy Paralysis
From a legal vantage point, the
entry of criminals into public life is restricted by prescribing certain
disqualifications which results in not allowing a person to contest an election
or holding public office. Articles 102 and 191 of the Constitution of India lay
down the situation in which a person will be disqualified from being chosen as
or for being a member of the Parliament, or a state legislature/council
respectively. The grounds includes scenarios like the person holding an office
of profit, if he is of unsound mind, insolvent and if he is disqualified under
any law made by the Parliament. In furtherance of the above, the Parliament
passed the Representation of the People Act, 1951 (‘ROPA’) which prescribes
further qualifications for qualification and disqualification.
Section 8 of the ROPA specifies
offences as a result of which a person is disqualified from being elected as a
member or continuing as a member of the Legislative Assembly. Offences include
certain electoral offences, offences under the Foreign Exchange Regulation Act,
1973, the Narcotics Drugs Act etc. Section 8(3) further specifies such
disqualification will operate from the date of conviction and continues for a
further period of 6 years from date of release.
Failure to furnish information as
per the affidavits in the Conduct of Election Rules, 1961 attracts penalty
under Section 125A of the ROPA. However, the sentence under S. 125A is only
imprisonment for 6 months and offence is not listed under Section 8 as a
disqualification. Hence, it seems evident that the current framework has failed
to produce the desired results.
The issue of electoral reforms
and accountability of the candidates has been a subject of many a committee and
commissions. The 170th Law Commission report recommended the
addition of Section 8B in the ROPA which included certain offences in which a
framing of charge was sufficient to disqualify a person from further elections.[9]
The National Commission to Review the Working of the Constitution maintained that
once charges related to certain crimes have been framed by a court against a
person, he should not be permitted to contest elections unless cleared and a
permanent bar in cases of conviction on certain heinous offences. Further, they
have also added that political parties who are seen to abetting criminalisation
should face de-recognition and other actions.[10]
Recently, the Justice Verma Committee report on the Amendments to Criminal Law
(2013) had suggested an amendment in the ROPA which entailed a disqualification
in case a competent court takes cognisance of certain offences.[11]
It is evident from the series of
such reports that a need was felt to change the law, yet the legislature has
remain paralysed in order to bring about a change. In fact, as the former Prime
Minister of India Mr. Atal Bihari Vajpayee stated that coalitions are run on a
common minimum programme - the collation for criminalisation in politics
spreads pan both the houses of the parliament and aims to protect such
unscrupulous elements. One cannot find an ideological difference in any of the
parties regarding the above. How else will you explain the ordinance which was
brought forth by the UPA-II in order to nullify the judgment of Lily Thomas which treated convicted
member of parliament/state legislature in the same breath as any other
prospective candidate? The only organ of the State which has been responsive to
such changes is the Judiciary, albeit in its own controlled mandate. There have
been instances where the Apex Court has gone over board (CEC v. Jan Chaukidar[12], discussed later) but by and large,
such intervention has produced fruitful results.
The Bogey of Electoral Reforms Decisions
The judiciary has in its own
limited way has tried to respond to the issues of the day and has delivered
landmark judgments in order to reform the electoral process. The author relies
on the 244th Law Commission Report to identify three areas in which
the decisions have made substantial impact.
1.
Increasing
transparency in the electoral process
A couple of cases in the early
part of the 21st century (Association
for Democratic Reforms[13]
& People’s Union for Civil
Liberties[14])
have helped in increasing transparency into the electoral process. In the
former case, the Court held that it is the fundamental right of the electors to
know the antecedents of the candidates who are contesting for public offices.
Such right was considered to be a silent facet of the freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution of India.
Information includes details inter alia details
of past convictions/acquittal, quantum of punishment and whether the candidate
is accused in any pending case. In the latter judgment, the Court struck down
an amendment to the ROPA which sought to limit the operation of the earlier
order in the ADR case. The Court concluded that the amendment violated the
fundamental rights of the voter and hindered free and fair elections which form
a part of the basic structure.
2.
Accountability
of the Elected Representatives
At the same time, the Court has
also ensured that representatives of the people holding public office should be
held accountable. The Apex Court in Lily
Thomas[15]declared
Section 8(4) of the ROPA as unconstitutional which treated elected
representatives separately from prospective candidates. Earlier, an elected
representative could file an appeal within three months of the judgment and
extend the disqualification which is entailed under Section 8 till the time the
appeal was decided. The Court concluded that such differential treatment has
not been envisaged under the Constitution keeping in mind Article 102 and 191.
A second judgment delivered in the same year[16]
declared a provision of Conduct of Election Rules, 1961 unconstitutional which
required mandatory disclosure of a person’s identity in case he intends to
register a no-vote. The secrecy of identity of the voter stays at the heart of
free democratic society so as to ensure that the elector votes without any fear
of retribution. Pursuant to the decision, the electors are entitled to express
their displeasure at the conduct of the candidate’s thereby increasing
accountability of public representatives to perform meaningful task.
3.
Weed
out corruption in public life by ensuring effective prosecution mechanisms
The final limb relates to a
catena of cases where the Court has directed institutional reforms in order to
weed out corruption in public life. In Vineet
Narain v. Union of India,[17]
the Court used the its power to lay down process for independent functioning of
the CBI, a selection process for the appointment of the Director of Enforcement
Directorate, granting statutory recognition to the CVC etc. It also tackled the
delays that were ensuing due to the sanction required by the government to
sanction the higher echelons of the civil servants by fixing a time limit of 3
months for grant of such sanctions. Further, it has introduced a concept of
deemed sanction for prosecution should the extended time limit of four (4)
months be not respected.[18]
In order to tackle the extensive delays which are evident across the
prosecutions against public representatives, especially those in power,[19]
the Supreme Court in an interim order in the case of Public Interest Foundation v. Union of India[20]
directed that the trial for charges under Section 8 of the ROPA shall be
conducted in no case later than one year from the date of the framing of
charges. Failure to adhere to the time limit will require the court to submit
the report to the Chief Justice of the concerned High Court with special
reasons as to why the trail could not be so completed.
The Road Ahead
Mr. C Rajagopalachari had
anticipated the present state of affairs nearly 25 years before independent
when he wrote: “Elections and their
corruption, injustice and tyranny of wealth, and inefficiency of
administration, will make a hell of life as soon as freedom is given to us…”.[21]
It is pleasantly surprising to
observe the role of the judiciary in curbing criminalisation of politics
whereas the branch of the state suited to such a role lays low. In the absence
of any progress on electoral laws, the contribution of the judiciary is a
sine-qua non for the effective conduct of free and fair elections. But there
have been situations where the court has gone overboard, for instance in CEC v. Jan Chaukidar[22]
the Court mistakenly considers a voter as an elector and thereby prohibited
persons present in custody from contesting in elections which goes directly
against the literal interpretation of the Act. Instances like such further
prove that it is incumbent on the Legislature to take note of the changes and
respond appropriately. The greatest irony of the latter situation is that this
will lead to a scenario where the public is expecting nearly 30% of the elected
representative in the Parliament[23]
to act against their own interests which seems highly unlikely.
[1] CAD, Dr. Rajendra Prasad, 26 Nob 1949, before
putting the motion for passing the constitution on the floor.
[2] Indira Gandhi v. Raj Narain and others, 1975
Supp SCC 1, para 664.
[3] LCI 240th report.
[4] (2005) 1 SCC 754, para 54.
[5] Vol. XI, CAD (26 November 1949).
[6] Milan Vaishnav, ‘The Market for Criminality:
Money, Muscles and Elections in India’ (2010)
<http://casi.sas.upenn.edu/system/files/Market+for+Criminality+-+Aug+2011.pdf>
accessed 14 January 2014.
[7] Association for Democratic
Reforms, ‘Press Release - Ten Years of Election Watch: Comprehensive Reports on
Elections, Crime and Money’ (2013) 1, <http://adrindia.org/sites/default/files/Press%20Note%20-
%20Ten%20Years%20of%20Elections,%20Crime%20and%20Money_0.pdf>
accessed 14 January, 2014
[8] 3 Association for
Democratic Reforms, ‘National Level Analysis of Lok Sabha 2009 Elections’
(2009)
<http://adrindia.org/sites/default/files/0.9%20final%20report%20_%20lok%20sabha%202009.pdf>
accessed 13
January, 2014.
[9] 170th LCI Report, para 5.3
[10] NCRWC, Summary p. 507, http://lawmin.nic.in/ncrwc/finalreport/v2b1-9.htm#_ftn13
[11] Justice Verma Committee, p. 343.
[12] The Chief Election Commissioner v. Jan Chaukidar (Peoples
watch) and others, 2013 (8) SCALE 487.
[13] Union of India v.
Association for Democratic Reforms, (2002) 5 SCC 294.
[14] People’s Union for Civil
Liberties v. Union of India, (2003)
2 SCC 549.
[15] Lily Thomas v. Union of India, (2013) 7 SCC
653.
[16] People’s Union for Civil Liberties v. Union of
India, (2013) 10 SCC 1.
[17] (1998) 1 SCC 226.
[18] Subramaniam Swamy v. Manmohan Singh, (2012) 3
SCC 65.
[19] See J. Jayalalitha’s Disproportionate
Assets case which was recently decided by a Special Court in Bangalore after 18
years. It was filed before a special court in Chennai in 1996.
[20] W.P. (C) 536 of 2011, Order dated 10 March
2014.
[21] Per C Rajagopalachari in
Kishor Gandhi, India's Date with Destiny: Ranbir Singh Chowdhary Felicitation
Volume, 1st Ed. (Allied Publishers, 2006) 133.
[22] The Chief Election Commissioner v. Jan Chaukidar (Peoples
watch) and others, 2013 (8) SCALE 487.
[23] 30% of the sitting MPs have criminal cases pending
against them, ADR Survey 2013.
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