-- By Rajindar Sachar
The unknown Indian was excited on seeing a "rare unanimity"
amongst all parties at a meeting on July 8. But that soon vanished when
it dawned on him that these "honourable men" (to borrow from
Mark Anthony's funeral oration) were aiming to fight the Supreme Court,
which had given directions that a candidate should file an affidavit informing
the real sovereign, the voter, whether he/she had been charged by a court
in any criminal offence up to six months before filing the nomination.
The little man was stunned - neither he nor any of us can understand this
hostility to the court. There is a danger of total crirninalisation of
politics (I would call it politicisation of criminals): about 700 legislators
in the States and 40 in Parliament have a criminal background and some
of them are facing trial on charges of murder, extortion.
A situation is being created deliberately to make it appear as if the
Supreme Court has trespassed on the privileges of Parliament and is indulging
in framing legislation. The charge is without foundation.
All that the Supreme Court has done is to reaffirm that the fundamental
right given under Article 19(1) of Freedom of Speech that includes, so
far as the voter is concerned, his right to obtain information about the
candidate to be selected.
The voter's right to know the antecedents, including the criminal past,
of the candidates contesting to be MPs or MLAs is fundamental for the
survival of democracy. It should be remembered that this right is not
dependent on the whim of Parliament but flows from the citizen's fundamental
right under the Constitution. As the Supreme Court emphasised, "the
right to get information in a democracy is recognised all throughout and
it is a natural right flowing from the concept of democracy".
The Union of India, in the Supreme Court, opposed the issuing of the directions
but was unsuccessful. Even after the judgment, the Election Commission
went on reminding the Government that it was bound to issue the circular
by July 1. The Government, however, asked the Commission to approach the
court for extension of time. This the Election Commission rightly refused
Records produced before the Supreme Court showed that the Election Commission
had been writing to the Government for over a year to make necessary changes
in the law. The Commission in its affidavit filed in the Supreme Court
had expressed concern about the criminalisation of politics, about criminals
getting elected. Some of them have even 'adorned' ministerial berths.
It had suggested that the candidates should be required to furnish information
about involvement in criminal cases - the same kind required by the court's
Even the Vohra Committee Report submitted years ago was kept in cold storage
by the Government, notwithstanding the fact that it had warned, "some
political leaders become the leaders of these gangs, armed senas and over
the years get themselves elected to local bodies, Slate Assemblies and
Parliament. Resultantly, such elements have acquired considerable political
clout seriously jeopardising the smooth functioning of the administration
and the safety of life and property of the common man causing a sense
of despair and alienation among the people."
Parliament needs to explain why it has kept quiet for so long after the
submission of the 170th Law Commission Report (I999). The Law Commission
had recommended debarring a candidate from contesting an election if charges
have been framed against him/her by a court in respect of certain offences
and making it necessary to furnish details of criminal cases, if any,
pending against him/her.
The directions meant to cleanse public life requested "each candidate
seeking election to Parliament or a State Legislature to furnish information
- Whether they had
been convicted/acquitted/discharged of any criminal offence in the past
- if any, whether they had been punished with imprisonment or fine?
- Prior to six months
of filing nomination, whether the candidates were accused in any pending
case, of any offence punishable with imprisonment for two years or more,
and in which charges were also framed or cognisance was taken by a court
These can hardly
be faulted as they were meant to help the little man (the voter) think
it over; whether to elect lawbreakers as lawmakers.
The directions are the core of democracy because as the court said, "true
democracy cannot exist unless all citizens have a right to participate
in the affairs of the polity of the country. The right to participate
in the affairs of the country is meaningless unless the citizens are well
informed on all sides of the issues, in respect of which they are called
upon to express their views."
It was also unfortunately portrayed at the all-party meet as if the court
had, in issuing these directions, acted in disregard of constitutional
limitations. The Supreme Court had directly posed this question and answered
it by laying down that the Court had ample power to direct the Commission
to fill the void and that where there was inaction by the Executive, for
whatever reason, the judiciary must step in and exercise its constitutional
obligations to provide a solution till such time that the Legislature
acts to perform its role by enacting a proper legislation to cover the
field; namely to deal with the adverse impact of lack of probity in public
life leading to a high degree of corruption.
Indeed the Supreme Court had even 50 years ago disclaimed any idea of
confrontation when it gracefully rebuked the Executive, "If then,
the courts in this county face up to such important and none too easy
task, it is not out of any desire to till at legislative authority in
a crusader's spirit, but in discharge of a duty plainly laid upon them
by the Constitution".
The voters may rest assured that notwithstanding any legislation that
Parliament may pass, it cannot dilute the force of directions issued by
the Election Commission because these have been issued to safeguard the
voters' right to know as a part of the fundamental right under Article
19, and no legislation can override constitutional provisions.
A self-restrained Parliament should not consider the Election Commission's
circular a challenge to its authority and jurisdiction.
I wish the feverish activity and the "rare unanimity" amongst
Parliamentarians had, instead, been shown in passing the long pending
but eminently desirable legislation such as the Lok Pal Bill, the Women's
Reservation Bill and the National Judicial Commission Bill.