Dialogue July-September, 2012, Volume 14 No.1
Electoral Reforms : Role of Election Commission and its Functioning
N. K. Singh, IPS ( Retd.)
The writer has been in active politics for over15 years now and has contested Lok Sabha elections thrice, though, unsuccessfully, but, none the less, vigorously. Earlier he was in police service for 34 years and has had experience of law enforcement, as District S.P, in elections, in 1962 and then 1972. What is written here is, therefore, based on ground experience, legal text and important judicial pronouncements on electoral laws and practices.
India is a democracy with parliamentary form of government. It is not without faults, but we know of none better today. It is a matter of pride that we are the largest democracy in the world. Soon after independence, we started well. The Constitution Assembly, completed its work on November 26, 1949, in record time of 2 years, 11 months and 17 days and the new constitution was promulgated on 26th January, 1950, the day which the Congress Party celebrated as independence day, from the year 1930 since.
An electoral process through which the people give their verdict is integral to democracy. Inaugurating the third conference of heads of election management bodies of the SAARC countries on April 30, 2012, in New Delhi, Chief Election Commissioner, S. Y. Qureshi, put it succinctly, when he said that "democracy, elections and voting were connected by a single thread, and together they help in the emergence of a responsive moral society that avoids coercion and force. …. They also allow people recurrently to choose their own leaders and determine their own destiny. It is, however, imperative that people’s verdict, is free from any form of exterior influences."
Right to Vote
Under our system of parliamentary democracy, the government of the day must enjoy the support of majority members in the Lok Sabha ( house of the people), to which they are directly responsible. Similar is the constitutional position in states. Fundamental rights, like, (i) right to equality, (ii) right to freedom, i.e., freedom of speech, protection of life and personal liberty, (iii) freedom of religion, etc. are justiceable. The citizens can approach the Supreme Court, for enforcement of these rights. The constitution has provided for adult franchise and all adults above the age of 18, have been given the right to vote ( Art 326). Art 325 of the constitution specifically prohibits any discrimination in this regard, on the grounds of religion, race, caste, sex etc.
The Election Commission
Our constitution provides for an independent body to hold elections in the country. The Election Commission of India has been made a constitutional body and accorded an independent status in matters of conduct and holding of elections. Under article 324 of our constitution, superintendence, direction and control of elections to the Parliament, and to the state legislatures and to the elections of the office of the President, and the Vice-president, are vested in the Commission. Article 329 of the constitution bars the courts, except in certain specified areas, from interfering in the conduct of the elections by the Commission. Holding elections in India of over one billion people, which will be equal to holding elections simultaneously in Europe, the USA, Canada and Australia is no easy task. And holding it in a fair and free manner is both stupendous and daunting task. Over the period, the strength of the Election Commission has been augmented and it is a 3-member body now. The founding fathers of the constitution also provided for adequate safeguards to enable the Commission to act independently. Under article 325 (5), the Chief Election Commissioner, (and other two Election commissioners also) are removable from office only in the manner provided for the Judges of the Supreme Court and their terms of service can not be changed during their tenure.
We have had the first general elections in 1952 on the basis of adult franchise, which was largely peaceful and fair. It was, undoubtedly, a bold venture. The prophets of doom, both inside and outside the country proved to be wrong. Well-known editor of the day, C.R. Srinivasan, is quoted by historian, Ramchandra Guha, describing 1952 elections as ‘the biggest gamble in the history’. The journal of Rashtriya Swayamsewak Sangha , Organiser, had prophesised that Prime Minister, Jawahar Lal Nehru "would live to confess the failure of universal adult franchise in India". The RSS was echoed by a British member of the Indian Civil Service, who claimed that "a future and more enlightened age will view with astonishment the absurd farce of recording the votes of millions of illiterate people". 1952 elections changed all these. The entire western world acknowledged our commitment to democracy. The News Chronicle of London wrote: "They have shown triumphantly that democracy is no dark mystery of which western countries alone have the secrets." On March 4, 1952, the leading newspaper of Germany, Frankfurter, known as Times of Germany, wrote an editorial, under heading, : ‘Ray of hope for India’. It said, with the exception of Nehru, every other living statesman would have shrunk away from holding elections on the basis of adult franchise—Chinese Marshal, Chiang Kai Shek never had the courage to face such an experiment. The editorial then added, : Nehru’s experiment at the democratic process and triumph was ‘more overwhelming than of any other statesman of our day’.
But after some years, say, in 70s, things started deteriorating. Today, there is lot of cynicism even about survival of democracy in the country. Luckily, however, of late, there have been perceptible healthy changes in people’s attitude. They are getting more and more involved with democratic process. This is reflected in high percentage of polling now. But much more need to be done. Parliamentary democracy would be a farce, if the process to elect the representatives of the people, be it at the state level or at the central level, was not totally free and fair. United States of America is the oldest democracy in the world and yet the fight continues to keep the electoral process free from malefic influences, Recently, President Barrack Obama said, "what we are facing is no less than a potential corporate takeover of our elections….. This should not be a Democratic issue or Republican issue, This is an issue that goes to whether or not we will have a government that works for ordinary Americans – a government of, by, and for the people. That is why these reforms are so important and that is why I am going to fight to see them passed into law."
In fact, of all the political reforms being talked about today, Electoral Reforms are perhaps the most important ones. These can effectively check the use of ‘money power’ and ‘muscle power’ which have, over the years, tended to vitiate the entire electoral process and making things easy for corrupt and criminal elements to enter law-making bodies and seats of power, both at the centre and in states. Let it be clearly understood that democracy is all about elected representatives now. Days of City States and direct democracy are gone. All these recent talk of people’s direct participation in making of law is unpractical and humbug. It is the people’s representatives who run the government. It is imperative, therefore, that right people are sent to the Parliament and state Legislatures. The people, therefore, must be helped with effective electoral reforms, and stringent electoral laws.
Reforms already in Place
Over the years, some reforms in the electoral process have already been put in place:
1. The introduction of Photo Identity Cards for Voters.
The Election commission has direct and specific responsibility under the constitution, to prepare genuine electoral rolls for all eligible voters. There were numerous complaints about inclusion of bogus names in the list or exclusion of the names of genuine voters. To get over this problem and prevent voting by proxy, the possession of photo-identity cards has been made compulsory.
2. Introduction of Electronic Voting Machines, (EVM) for casting votes.
Started on experimental basis, after fine-tuning, it has now been made universal and compulsory. All authorized representatives of candidates are given demonstration and allowed to inspect the machines, before commencement of the polls. These are sealed, thereafter.
3. Restrictions on publicity: On the basis of consensus reached in all-party meeting, the Commission has, laid down ‘Model Code of Conduct’, for the parties and candidates and introduced stringent curbs on ;
(b) display of cut-outs, hoardings, and banners,
(c) announcement or publicity by more than a specified number of vehicles,
(d) display of posters at places, other than those specified by the district electoral authorities,
(e) restrictions on number of vehicles for election campaign and processions,
(f) restrictions on hoisting of flags, etc.
4. Installation of close-circuit cameras and Video-recording of voting process at the polling booths.
This device is of recent origin and needs to be further fine-tuned. It was tried, largely successfully, during the assembly elections held in Bihar in November, 2005. It can act as an effective check to detect mal-practices at the booths and for identification of miscreants.
5. Compulsory auditing of accounts of recognized political parties and holding of intra-party organizational elections annually.
There can be no true commitment to democracy unless political parties have a transparent system of elections in a free and democratic way. This innovation is of recent origin and is yet to be fully implemented. None-the-less, a beginning has been made, which is a welcome development.
6. ground rules for recognition of Parties as State Parties and National Parties.
The political parties are given recognition by the Election Commission, under Election Symbols (reservation and allotment) Order, 1968. In a recent judgment, the Supreme Court upheld the ultimate authority of the Commission to lay down criterion to determine the status of the parties.
7. Ceiling on expenditure by candidates for Lok Sabha and assembly elections.
It has now been raised to 40 lakhs from earlier 25 lakhs and 10 lakhs for Lok Sabha and assembly elections respectively. On the basis of his own experience while contesting Lok Sabha elections thrice in 1998, 2004 and in 2009, the writer can say that even the earlier ceiling of 25 lakhs for Lok Sabha election was adequate to meet the genuine expenditure. I am of considered view that huge money is required not for fighting elections but for corrupting them and perverting the process. He also does not buy the argument that rising expenses in fighting elections, is one of the causes of growing political corruption It is more of an excuse than a cause. It is like putting the cart before the horse. In fact, those who make money through corrupt practices and acquire enormous resources are corrupting the elections. Combating corruption, therefore, should be the first step to check electoral mal-practices, of course, with curbs on expenses on election simultaneously continuing. Indrajit committee on State funding of elections (1998) made suggestion for at least non-cash partial funding. This has not found acceptance so far. So also repeated suggestion for making the donation by corporate houses legal and transparent.In addition, some of the following measures, also in place, needed to be fine-tuned:
1. In the matter of selection of election Observers, , in particular, Chief Observer, to ensure they are fully trained and effective.
2. The need to decide deployment of the central para-military and other armed forces jointly by the chief observer and the senior-most-officer of the central para-military force, in-charge of the constituency. The district authorities should, no doubt, be consulted and made to cooperate with them. The argument that ‘Police’ and ‘public order’ are state subjects, should not hold ground. The Constitution castes clear responsibility on the Election Commission to conduct elections and a temporary measure to decide the deployment, just for a day on the polling day, with district authorities fully involved with it, could not be deemed to be an infringement into the jurisdiction of the state.
3. There should be more rigorous check on use of official position by the ministers of the state government and they should never be allowed to move about with large contingents of force and convoy of vehicles, at least a few days prior to the poll.
4. Should the state be placed under President Rule once the code of conduct has come into force? There is a big question mark to this suggestion. The former CEC MS Gill had suggested it, which had not found favour with constitutional experts. Does it need a fresh look? Or in absence of that, some other measures could be thought of to make the cabinet and ministers totally redundant during the election period ?
5. The selection of booths for repoll, if it becomes necessary, should be taken in more transparent manner, particularly the grounds on which booths are selected for repoll.
Some of these factors continued to plague the election process, particularly, in northern states, say, Bihar, UP, Haryana, to name a few glaring ones. But, ironically, it was in Bihar that things looked up, for the first time, when the Commission was able to ensure a completely free and fair poll in the elections to the Bihar assembly held for the second time in November, 2005. In fact, it should be an interesting subject matter for case study, as to how this sea-change took place, only in about a year’s time. The first thing that struck was sudden fall in average percentage of polling roughly from about 60/61 % to 45/46%. We checked up in our area and found that those present had, in fact, participated in large numbers. But the villages were almost half-empty. This was all because of large exodus of the labour-class and youths to different places in the country for jobs and work. In earlier elections, apparently, the gap was filled-up by bogus voting, which had now stopped. But how this free and fair poll? Was it because of the presidential rule, Buta singh, not withstanding, with honest bureaucracy asserting itself or presence of Election Commission officer K.J. Rao, with the Election Commission backing him to the hilt or a determined people who had decided for a change ?
Perverse use of some of the constitutional provisions and intervention of the Supreme Court.
In recent years, through some of its landmark judgments, the Supreme Court has set at rest certain ambiguities, if at all there was any, which were sought to be misused to scuttle the existing constitutional provisions and laws. These provisions and sections of law are given below.
I. Under article 75(5) of the Constitution, a central minister, and under art. 164(4), a state minister, shall cease to hold office, if he or she does not get elected to either house of the parliament in case of former and of the legislature in case of latter, within a period of six months.
II. Under section 8, sub-section (1) of the Representation of the People’s Act, a person convicted of an offence punishable under sec 153A, or section 171E or section 173F or subsection (2) or sub-section (3) of sec 505 of the IPC etc shall be disqualified for a period of six years from the date of such conviction.
III. Under section 8, clause (2) of the same act, a person convicted by a court in India for any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and continue to be disqualified to fight any election for a period of five years since his release. Under the proviso of this section, even a conviction of not less than six months, for contravention of any law providing for the prevention of hoarding, or adulteration of food or drugs , will be enough to disqualify a person in similar manner.
IV. Under section 8 (3) of the Representation Act, not-with-standing anything in sub-section (1) and sub-section (2) above, a disqualification under either section shall not, in case of a person who on the date of the conviction is a member of Parliament or the legislature of a state, take effect until three months have elapsed from that date or, if within that period an appeal or revision petition is brought in respect of the conviction or the sentence, until that appeal or revision application is disposed of by the court.
First case in which the supreme Court intervened was of Tej Prakash Singh, son of the slain Punjab Chief minister, Beant Singh. In 1996, Tej Prakash was inducted in the Punjab Government as Minister, without being a member of the legislature,. To scuttle the requirement that he should become a member of a house within six months, in a most blatant and vulgar misinterpretation of the constitutional provision, he ceased to be a minister and then was reinducted and sworn-in as such. In August, 2001, Supreme Court bench, headed by Chief Justice, A.S. Anand firmly ruled that a non-member of a legislature can not continue to occupy ministerial post beyond six-month period, if he or she failed to get elected to the house within that period of six-month. The Court made it crystal clear that art. 164(4) of the constitution was only in the nature of an ‘exception’ and meant to be used in extra-ordinary situation. The standard rule was that only members of the legislature can become a minister. The Court gave a firm blow, to quote its own words, ‘the seductive temptations of clinging on to office regardless of constitutional restraint.’
Only about a month later, on September 21, 2001, the highest court pronounced another verdict, settling similar issues of huge significance, in Mrs. Jayalalithaa’s case. She was sworn-in as the Chief Minister of Tamilnadu, on May 14, 2001, by the Governor, Mrs. Fathima Beevi, even though on that day, she stood convicted in Tansi corruption case, carrying a punishment of more than two years. She was, thus, disqualified to contest elections under section 8(2) of the Representation Act. Her appeal against the conviction had been admitted by a competent court, which had kept the sentence of punishment suspended. The appointment as Chief minister was sought to be justified on the grounds, that (a) a person could be made a Minister without being a member of a house of the legislature for six months under art 164(4) of the const., (b) once the conviction and sentence were stayed, the disqualification under representation act also stood stayed, and that (c) in a democracy, an overwhelming people’s mandate should be respected. The Supreme Court categorically and firmly rejected all these contentions and quashed the appointment of Smt. Jayalalithaa as Chief Minister. Holding that her appointment ‘was not legal and valid,’ Chief Justice S.P. Barucha, speaking for himself and Justice Y.K.Sabharbal said, ‘We are satisfied that in the appointment of Ms. Jayalalithaa as Chief Minister there has been a clear infringement of…. constitutional provision …’ and then clarified that a ‘non-legislator could be made Chief Minister or Minister under art. 164 only if he/she had the qualification to become a member of the legislature, as enshrined in art 173, as was not disqualified by reason of the disqualification set out in Article 191.’ The court also held that ‘a person who is convicted for a criminal offence and sentenced….can not be appointed the Chief Minister of a state under art. 164(I) read with (4) and can not continue to function as such.’ Rejecting the argument of presumption of innocence till disposal of appeal, the Court said, ‘ when a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo sentence…. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment.’ The court held that the ‘conviction and sentence it carries operates against the accused in all their rig-our until set aside in appeals’ and the disqualification attached ‘to conviction and sentence’ very much applies. The court observed…. ‘it is difficult to conceive that a person who is not an elected member, does not posses even the minimum qualification of for being chosen as a member, could be appointed as a Chief Minister or a Minister.’ On the repeated assertion of K.K.Venugopal, counsel for Jayalalithaa, during the hearing, that the will of the people must be respected, the bench comprising Chief Justice, S P Bharucha, Justice, G B Pattanaik, Justice Y K Sabharwal, Ms. Justice Ruma Pal and Justice Brijesh Kumar, said ‘ We are not concerned with the mandate of the people. The Constitution is supreme. That is what we are interpreting, not the people’s mandate.’ When Mr. Venugopal persisted that disqualification of Ms. Jayalaithaa will go against the will of the people which was supreme in democracy, the bench said, ‘Please consider what you are saying—that regardless of ‘conviction’ she (her party) has won the election. Today, it is a question of sentence of two to three years. Tomorrow, it may be sentence of murder. Are we left with no standards at all.’ The court finally ruled that the will of the people prevails if it is in accordance with the Constitution. Ms. Jayalalithaa, it may be added, was restored as Chief Minister, after she won the appeal and the conviction order was set-aside by the appellate court. The orders of the Supreme Court, none-the-less, settled the following laws,:
(i) A person can not be reinducted as a Minister, if he or she fails to get elected to a house within a period of six months and a person disqualified to contest election can not be made a Chief Minister/Minister,
(ii) Even if an appeal is admitted and order of sentence and conviction are kept in abeyance, the disqualification under representation act operates, and there is no presumption of innocence,
(iii) The will of the people prevails, if it is within the four-walls of the Constitution.
Voters have right to know the antecedents of candidates.
Of far reaching significance has also been the intervention of the Supreme Court in giving real substance and meaning to right of vote by enlarging its scope. On May 2, 2002, the Supreme Court, gave orders directing the Election Commission, to make it compulsory for candidates, contesting parliamentary and assembly elections to furnish certain personal details and set the deadline of July 2 for compliance. The Court had stressed in its judgment, that knowing more about the candidates in the electoral fray may afford an opportunity to the ‘little man’, (voter) to think things over ‘before making a choice of electing law breakers as law makers.’ In one of the stinking observations of misuse of money power in elections and for retaining power with the help of black money, the highest court said,
"….elections in the country are fought with the help of money power, which is gathered from black money, and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for reelection." At another stage, the court said, " The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted."
The Election Commission, in turn, asked the central govt. to take necessary measures to implement the directive of the Supreme Court. After government failed to initiate measures to that effect, and with deadline date of July 2 approaching, the Commission was left with no choice than to act itself and issued directives, making it mandatory for candidates to provide details about their financial status, their criminal record, if any, and their educational qualifications. On July 8, 2002, an all-party meeting of leaders of 21 parties unanimously rejected the directive of the Election Commission, requiring the candidates to furnish certain antecedents with nomination papers and instead asked the government to come out with a comprehensive bill to address the issue of criminalization of politics. It was the job of the Parliament to make laws and not of the court or election commission, they said. They asserted that the Election Commission or the Supreme Court, by this action was, usurping the law making power of the Parliament, an assertion which was totally mis-placed because no new law had been made. In the light of Supreme Court’s guidelines and after the government had failed to act in time, the Commission, through its directive was only making the election process more transparent and extending to the voters their basic right of information, under Art. 19(1) of the Constitution.
When elections to J&K assembly approached, the government, fortified with the views of all-party of August 2, 2002, decided to promulgate an ordinance, doing away with the need by candidates to file affidavits regarding criminal records and possession of assets at the time of filing nomination papers, and stipulating in stead that elected members would file their assets statements before the presiding officer of the house to which one was elected. The President ultimately, after the cabinet resubmitted it, accorded his assent to the ordinance, which was followed by Representation of People’s (amendment) Act, nullifying, in so many words, the May 2, 2002 orders of the supreme court, requiring the candidates to furnish declarations regarding their criminal records or absence of it and their assets, along with their nomination papers. Section 33B of the amended Act provided, ‘not-with-standing anything contained in any judgment of any court or any order of 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 rules made there-under.’ The government and all the parties, however, were in for a rude shock. On 13, March, 2003, a three-judge bench, comprising Justice M B Shah, Justice P Venkatarama Reddy, and Justice D M Dharmadhikari, struck down the controversial provision of the amendment, by holding that portion of the amendment as ‘unconstitutional’. In a landmark judgment for electoral reforms, the court held that a voter ‘has a fundamental right to know the antecedents of a candidate’ and the right was independent of the statutory right under the election law. Further, ‘a voter is first a citizen of the country and apart from statutory rights, he is having fundamental rights conferred by the constitution.’ Conceding that the legislature is entitled to change the law with retrospective effect which form the basis of a judicial decision, the court held, ‘but, this exercise of power is subject to constitutional provisions and, therefore, it can not enact a law which is voilative of the fundamental right’. Enunciating a landmark interpretation of the rights under the Constitution, the court held that voters had fundamental right under Art. 19(I)(a) to know the antecedents of a candidate for various reasons. Justice M.B. Shah said, "right to vote would be meaningless unless citizens are well-informed about the antecedents of a candidate….There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to change our democratic governing system and to have competent legislature," He wondered, whether there was any necessity to keep the voters in the dark about the murder, dacoity, or rape committed by a candidate or about his ill gotten money which could be used for elections. Justice Dharmadhikari said that the new amended act was only half-hearted attempt in the direction of electoral reforms by the government and much improved electoral system was required to make the election process both transparent and accountable so that the influence of tainted money and physical force of criminals did not make democracy a farce—the citizen’s fundamental right of information should be recognized and enforced. Welcoming the quashing of the controversial provision of the amended act, the Chief Election Commissioner, T.S. Krishnamurthy told the Hindu on March 13, 2003: "We sincerely hope that this judgment will pave the way for purity in electoral process and further strengthen democracy." Welcoming the judgment the C.P.I General Secretary, A.B. Vardhan, suggested on March, 14, 2003, that all political parties and the Parliament should ‘gracefully’ accept the judgment, which had struck down the amended electoral reforms law.
Quality of representation.
A free and fair poll, undoubtedly, reinforces people’s faith in representative government and a participating democracy. But that is not enough. The electoral system must ensure that those who get elected are not the ones, who will destroy the very system, which enables them to enter the legislatures, the Parliament and seats of power. In 1993, Vohra Committee (a Committee, comprising chiefs of concerned central police organizations and enforcement agencies, with the then Union Home Secretary, N. N. Vohra, as Chairperson) reported that there existed parallel governments in several parts of north Indian states, where mafia gangs and violent extremist elements ruled the roost and called the shots. There must be, therefore, law to prevent such elements. Law breakers should not be allowed to become law makers.
This has been engaging the attention of the Election Commission, the Law Commission and right thinking sections of political class.
Need to bar criminals and corrupt from contesting polls.
Now after the Supreme Court order of March, 2003, the candidates are required to file affidavits, indicating their antecedents, along with nomination papers. But this has failed to prevent the criminals/mafia from entering Parliament and state assemblies. There is no provision for disqualification in case their affidavit is found false. Only a prosecution can be launched under section 125A of the representation act, which provides for punishment for imprisonment for a term upto six months or fine or both, for furnishing wrong information or concealing any information in Form 26. The disposal of the prosecutions in the courts of law, takes years. Some of the cases of 2004 Lok Sabha elections are still pending and the violators are merrily continuing to be members of the Lok Sabha. Those facing trials in courts, of grave crimes, including cases of corruption, carry no disqualification. Some of them are members of the Union Cabinet. A few had to resign as ministers, when the trial courts issued warrants of arrest against them, to be re inducted once they were released on bail, although they continue to face charges of murder or corruption in courts. There have been cases when some members of the Parliament have spent the entire tenure in the Jail.
The truth is that political parties across the board give tickets to winnable candidates, irrespective of their records and criminal background. In 1997, the Election Commission collected details of candidates, state-wise, who were history-sheeters, (a sheet maintained at the Police stations, containing criminal records of habitual criminals and those involved in serious crimes for surveillance, crime detection and preventive works). It read as follows, with criminal record-holders shown in the brackets. Bihar-1,448 (350), Uttar Pradesh-3,297 (520), Punjab-259(50), Jammu & Kashmir-110(30), Andhra Pradesh-1,462 (180), Assam-137(30), Rajasthan-677-(65), Maharashtra-1068(190), and Madhya Pradesh-1,046(140). Thus, some 1,555 candidates with criminal records (of heinous crimes, such as, murder, dacoity, rape, robbery, kidnapping, and extortion) entered the contest and at least 40 of them got elected. At that point of time, out of 4,120 members of the 25 state assemblies, some 700 were with such criminal records. That was the situation in 1997. Things would be far worse today. On the eve of golden jubilee year of Independence, the Lok Sabha met in a special session and passed an unanimous resolution, which inter alia, said ‘ that more especially, all political parties shall undertake all such steps as will attain the objectives of ridding of our polity of criminalization or its influences,’ It remained a pious resolution. Hardly had the ink dried on this pious resolution, on July 8, 2002, an all-party meeting of leaders of 21 parties unanimously rejected the draft, prepared by the NDA government which sought to disqualify those against whom charges had been framed in a court of law in two or more cases of heinous crimes, like, murder, rape etc. They asserted that there could be no disqualification unless a person was convicted. Coming out of the all party meeting, of August 2, 2002, Congress leader Mr. Bhardwaj (now Governor of Karnataka) reportedly justified rejection of the proposed draft bill, by saying that a bill for a ‘civil society’ was needed. … Mr. Laloo Yadav reportedly went a step further and suggested that only final convictions (i.e., upheld in the appellate court) should be taken into account, for disqualification. He cited the case of Tamilnadu Chief Minister Smt. Jayalalithaa, whose conviction ( in Tansi case ) was set aside in the appellate court. President K.R.Naraynan made specific appeal to political parties not to give tickets to persons with criminal records. The appeal fell on deaf years.
Taking stock of some of these glaring anomalies and experience gained in the Lok Sabha elections, held in 2004, the Chief Election Commissioner, T.S. Krishnamurthy, in his D.O. letter, dated 5th July, 2004, to the Prime Minister, sent a consolidated proposals for electoral reforms, for consideration and undertaking necessary legislation to give effect to those proposals. The Commission, in fact, suggested a time frame to act on those proposals well before the next assembly elections which were due in some states. Apart from other things, the Commission proposed that law should be amended to provide for disqualification of a candidate, in case charges have been framed against him, by a court of law for an offence carrying punishment for five years and more. As a precaution against motivated action by the ruling party, just before elections, the Commission suggested that only cases filed one year prior to election should carry such a disqualification. A copy of the letter addressed to the Prime Minister along with the proposals of the Commission, were also circulated to the political parties for their views. The Prime Minister made specific reference of these proposals from the Commission, in an answer to questions on induction of tainted ministers in his cabinet while on an official visit to Singapore. Mr. Rajnath Singh, B.J.P leader and its former President, in an article, in a Hindi daily at that time, had laid stress on the need of keeping criminals out of our political system. Then Home Minister of UPA government, Mr. Shivraj Patil, told the PTI on August, 4, 2004, that the government was keen on debarring "criminally inclined" persons, as he put it, from contesting elections. He also confirmed that the government was proposing to convene an all-party meeting to discuss the proposals of the Election Commission, obviously of July, 5, 2004 to arrive at a consensus on the issue. Time has shown that nothing worthwhile happened on that day. We celebrated 60 years of our parliamentary democracy in the country on May 13, 2012 and parliament met in a special session on Sunday, on this day, and yet no serious exercise has been undertaken so far to consider the proposals.
Most of the political parties are opposed to any such reform, ostensibly on two grounds, namely, (i) a person is presumed to be innocent till found guilty in the court of law, and (ii) possibility of motivated action against political opponents by the ruling party. (objection (ii) has already been taken care of by the Commission in the above proposal). The above objections can be (further) countered on the following grounds;
(i) Presumption of innocence may hold true in holding a person guilty in a criminal case and awarding sentence/punishment to him, including imprisonment This… need not be extended to other areas, including fighting elections, if it becomes necessary, ….in larger interest of democracy and healthy governance.
(ii) In larger public interest, the presumption (of innocence) has been done away with in sexual offences, or dowry related crimes or under certain circumstances, prevention of corruption act against public servants. Why not, therefore, for cleansing public life and in the larger interest of democracy?
(iii) Also, in larger public interest, to deal with terrorist or extremist, even fundamental rights were curbed by providing for detention without trial, as in 1950 Prevention of Detention Act, which has remained intermittently part of our statute book in some form or other.
Consensus on this contentious issue seems difficult. The two national parties, the B.J.P. and the Congress, profess commitment. But how serious are they? They continue to field candidates with criminal background, some facing charges of grave crimes. Comparatively, C.P.I. seems to be more earnest. But majority of the regional parties are likely to oppose. There is one silver lining, however. Times have changed. Movement led by Anna Hazare, not-with-standing some wrong moves and utterances of some of the team members, admittedly, has aroused, in a big way, people, especially, youth not against not only corruption, but also need to prevent ‘corrupt’ and ‘criminals’ from entering Parliament and state Assemblies. There is new awareness. If Lokpal bill can not be delayed for long, so is the case of proposals which have come from the Election Commission of India to disqualify those, facing charges of serious crimes in court of law from contesting elections. People, by and large, are not going to take it for long now.