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Saturday, July 20, 2002

The government and political parties have acted with uncharacteristic speed and dynamism to thwart the disclosure provisions ordered by the Election Commission (EC). The chain of events starting with the Supreme Court judgment on May 2, and culminating with a draft bill circulated by government on July 15 is revealing. Suddenly, the political consensus, which eludes the nation even in testing times, resurfaced! All parties seem to be more or less unanimous that candidates for elective office must not be forced to disclose their criminal record and financial details. Suddenly, there is solicitous concern for the privacy of the individual, rights of the accused and supremacy of the legislature.

Based on the May 2 judgment of the Supreme Court, the EC framed guidelines and sent to government on May 14 for incorporating in the Conduct of Election Rules. The government dithered and finally the Cabinet discussed the proposals on June 18, and decided that a legislation was called for. An all-party meeting was convened on 8th July, a full week after the expiry of the two-month deadline imposed by the Court for implementing the disclosure provisions.  The EC had no choice but to enforce the Court directions, and orders were issued on June 28. The all-party meeting was duly held on July 8, and there was impressive unanimity in opposing disclosure provisions and questioning the jurisdiction of the judiciary. On July 15, a draft bill was released.

Several issues came to the fore in public debate on disclosures. Three of them deserve serious consideration. First, the alleged discretion given by the EC to the Returning Officers (ROs) to reject the nomination in cases of proven incomplete or false disclosure, provided such lapses constitute a defect of substantial character. Politicians have expressed concern about the ROs acting as “unguided missiles” in the hands of unscrupulous rivals. This concern is both amusing and revealing. In some ways, it is an extraordinary admission of politicians’ propensity to use administration for partisan purposes, and the complete subversion of rule of law which has become synonymous with political skill. And now the same politicians turn round and innocently complain of possible victimization! The truth is, in the past 50 years of election history, out of the more than 150,000 nominations filed, not even a dozen cases of  frivolous rejections can be cited. Even assuming that candidates harbour genuine fears of arbitrary exercise of powers, all it takes to eliminate discretion is a simple amendment in Rule 4 of Conduct of Election Rules, 1961. Clearly, RO’s discretion is a red herring to denounce the disclosure provisions, and the real motive is to prevent disclosure.

Second, the argument of judicial transgression into legislative arena. Undoubtedly, legislature is supreme in law making. But disclosure has been ordered by the Court as an extension of the citizens’ right to know under Article 19 of the Constitution, and as a natural right flowing from the concept of democracy itself. It is perverse to argue that voters have no right or obligation to know about candidates seeking their mandate. The Supreme Court’s jurisdiction in interpreting and defending fundamental rights is inviolable. True, there have been judicial incursions into executive and legislative spheres earlier. True, the judiciary’s claim to appoint itself without any say for elected government is untenable. But the parties have chosen the wrong issue and wrong time to establish legislative supremacy. If anything, this self-serving approach has undermined the legitimacy of political process, and made judicial activism more likely, not less.

Finally, this whole controversy has hurt the democratic process. Parties and politicians are seen to be ranged against public opinion. The draft bill released on 15 July makes a mockery of professed concern for clean politics. The bill says no disclosure shall be permitted other than that provided by it. And a new disqualification is proposed to give an impression of some reform. Those who are charged by Courts with heinous offences in two separate cases, that too six months before nomination, stand disqualified. Only murder, waging war against government, abduction, dacoity, terrorism, and narcotic offences, if committed repeatedly and charged by courts, can separate criminals from politics!  The real intent of the bill is revealed more by what it omits, than what it says. There is not a word about financial disclosures!

The message to the nation is as disturbing as it is clear. No matter what people say, it is politics as usual. Legitimate political process is critical for the survival of our democracy. We need more politics, not less; more democracy, not less.  But short-sighted politicians are distancing people from politics, and painting themselves black. It is sad for politics, and sadder for democracy. Sensible citizens must stand up and restore politics to people, and reclaim the republic for the true sovereigns.

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