The Supreme Court verdict of March 13 reiterating the fundamental right of voters to know about candidates is a significant milestone in the evolution of our democracy. First, it has upheld constitutionalism and strengthened our faith in the institutional vitality and corrective mechanisms in our republic. Second, it provides a priceless opportunity for parties to break out of the shackles of criminal elements and moneybags at the constituency level. Politics as big business, power at any cost, and public office for private gain will simply not do.
The litigation in question was on the constitutionality of Section 33B of the Representation of Peoples Act. This section was inserted into the law as the outcome of our Parliament's ill-advised effort in 2002 to curtail the fundamental right of citizens to know the criminal and financial antecedents of candidates. The Supreme Court in its verdict, has held this amendment unconstitutional.
Background
The pioneering efforts of LOK SATTA in 1999 through its Election Watch movement and screening of candidates generated tremendous public response and pressurized major parties to desist from nominating candidates with criminal record. Thanks to this public pressure, in Andhra Pradesh, in subsequent elections, parties refrained from nominating new candidates with known criminal record. The process of criminalization of politics has been arrested through citizen initiatives, though established politicians with criminal antecedents continue to be nominated.
Based on this successes in Andhra Pradesh, the Association for Democratic Reforms (ADR) filed a writ petition in Delhi High Court, whose judgment in favour of disclosures was challenged by the Union government before the Supreme Court. The People's Union of Civil Liberties (PUCL) later joined cause as a petitioner in this case. On May 2, 2002, in a reasoned judgment, the Apex court held that the voters have a fundamental right to know the criminal and financial antecedents of candidates. On New Delhi's refusal to incorporate such disclosures as a part of the nomination process, the Election Commission (EC) on June 28 issued a detailed notification in compliance with the court verdict. Readers will note that the EC is a constitutionally enshrined authority vested with the independent responsibilities for conduct of free and fair elections in the country. It had come as no surprise that the EC moved swiftly.
The June 2002 EC notification mandated disclosures of the criminal record - including convictions, charges pending and cases taken cognizance, and financial record - including assets, liabilities and dues to public financial institutions - of an election candidate, spouse and family members. Measure for measure, the Union Government then drafted an Ordinance with its provisions expressly violative of the Supreme Court verdict and violating Article 19(1)'s decree on fundamental rights. On Aug 16 2002, it recommended the flawed ordinance to the President for approval. On the same day, leading citizens and activists on behalf of National Campaign for Electoral Reforms urged the President to refer the Ordinance to the Supreme Court under Article 143 of the Constitution due to inherent unconstitutionality.
The key point to be noted here is that the Govt (with the backing of the major political parties) was not in favor of mandatory disclosures of criminal and financial antecedents of candidates. Not surprisingly, the President returned the Ordinance to the government for reconsideration on 23rd August, but the Cabinet reiterated its recommendation to the President without any changes on August 24, 2002. The President had no option but to promulgate the flawed Ordinance on August 24. Later Parliament enacted an amendment to the Representation of Peoples Act, which embedded the intentions of the govt in the law.
The law is struck down
But the National Campaign for Electoral Reforms did not give up. LOK SATTA, PUCL and ADR challenged the constitutionality of the Ordinance. Sri PP Rao and Sri Prashant Bhushan appeared for LOK SATTA before Supreme Court. Justice Rajinder Sachar, Sri Sanjay Parikh and Ms Kamini Jaiswal appeared on behalf of the other petitioners. The Supreme Court's verdict of 13th March, striking down section 33B of the law is a result of this petition. The verdict has the following consequences:
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 EC's notification.
4. No provision for financial disclosure has been provided for in the law. Now candidates have to disclose statement of assets, liabilities and dues to public financial institutions in respect of themselves, spouses and members of their families.
5. 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.
Going forward
In a nation crying for reforms in our electoral system, process of power and judiciary, this verdict and people's right to know must be the starting point of democratic reform. This is also a moment for us to reflect. Once again, the resilience of our democratic system, the inherent strength of institutions, and the constitutional checks and balances stand as testimony to the maturity and vibrancy of our governance system. We congratulate the advocates who marshalled the arguments ably on behalf of citizens and helped the court form its conclusions. Millions of Indians, several organizations and media all have fought this battle for democracy and liberty in keeping with glorious traditions of citizen assertion and people's sovereignty. We salute those sentinels of freedom.
But there are certain pitfalls we should avoid. This is not and should not be seen as a struggle between the people and the political parties. Politics is a noble endeavour. There cannot be democracy without robust politics and strong parties. Parties have a difficult job in our diverse society and very often the politicians are as much victims of a vicious cycle as they are villains. Revulsion of politics is dangerous. Very often they are captive in the hands of political fiefdoms which dominate the electoral scene in a first-past-the-post system. Our parties are striving hard to sustain our democracy against great odds. They need our full support in this endeavour.
Equally, the parties must take this as an opportunity, not a threat. The parties have a vital and often thankless task to perform in a democracy. The time is right for our political system to break itself loose from criminal elements, unaccounted and excessive money power, and increasing perception of illegitimacy of the power game. It is time for wise counsel to prevail amongst our political leadership and for their resolute action to strengthen democracy. 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.
We are confident however, that our parties and legislators will exhibit the requisite courage, wisdom and foresight to accept this verdict of the Supreme Court and use it as a launching pad for engineering far-reaching and vital electoral and governance reforms.
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Neither should this be viewed as a turf battle between parliament and judiciary. No democrat can question the supremacy of elected legislature in law making. Equally, the judiciary has the ultimate responsibility to interpret the constitution and uphold fundamental rights. True, there are concerns about judicial usurpation of executive and legislative authority and those concerns are legitimate. But the campaign for electoral reforms is the wrong case to contest judicial role.
This judgment opens up many vistas, and the battle for reclaiming our republic for the people has just begun. We, on behalf of National Campaign for Electoral Reforms, appeal to the political parties, media, and enlightened citizens to fully respect this verdict of the Supreme Court, and work for genuine democratic reforms to help us fulfill our potential as a nation and minimise avoidable suffering.
The people of India expect no less, and they ask no more.