Democracy is about peaceful change. If that hope of peaceful transformation is extinguished, all that is left is anarchy or violent upheavals. President Abdul Kalam’s courageous act in returning the patently unconstitutional Representation of the People (Amendment) Ordinance 2002 for the reconsideration of the Council of Ministers is a great morale booster for all those who seek peaceful change. This act of diligence and statesmanship helps uphold the letter and spirit our Constitution as few official actions have done in recent times.
For long, we the citizens, have despaired as there seems no prospect of change in the rules of the game, even as the players keep changing. In such a sad scenario, no matter which party wins or which politician assumes office, we, the people are forever the losers. Elections have merely become battlegrounds to decide who will share the spoils, not what changes have people’s mandate. The recent judgment of the Supreme Court on May 2, the Election Commission’s (EC) Order directing full disclosures by candidates seeking elective office and the obvious resistance of the political parties and politicians of all hues have served a great purpose. The issue of electoral reforms, which was debated and discussed at best by about 5% of Indians has now come to occupy the centre stage of our national discourse. Rarely have people come together so spontaneously on any issue during peacetime in the past. Surveys, opinion polls and ballots indicated that an overwhelming majority of the people – 95 – 99% – are in support of full disclosure of the criminal record and financial details of the candidates. Equally impressively, the parties, cutting across the ideological and political barriers, have stood as one in opposing disclosures. The all-party meetings held on July 8, and August 2 on the subject were models of political consensus in a nation where consensus on any issue except the perks, privileges and patronage of those in office is very elusive. The divergence between the public mood and the views of the political establishment cannot be starker. This dangerous stand off is detrimental to our democracy.
The parties do have two concerns - one legitimate, and another spurious. First, the legitimate concern. The EC order of June 28 provides for rejection of nomination for furnishing any wrong or incomplete information, or suppression of any material information, if it is considered by the Returning Officer (RO) to be “ a defect of substantial character”. The parties smell a rat, and are afraid that such unfettered discretion in the hands of an unsympathetic RO can be an “ unguided missile” in the hands of their opponents. In a way, this is an astonishing admission by politicians of the extent of their subversion of rule of law and all norms regarding bureaucratic placements and illegitimate political interference in quasi-judicial functions. The EC’s own record of the past fifty years is extremely reassuring in that not even a dozen cases of wanton rejection of nominations can be cited in our country. However, the anxiety of the politicians facing elections is fully understandable. It is impractical to expect the RO to exercise due diligence and have the resources to verify the accuracy of information, particularly on assets and liabilities, furnished by candidates on affidavit. It is much better to reject nominations on grounds of non-disclosure, and disqualify and prosecute those candidates who willfully furnish false information, after the election. This genuine concern of politicians can be addressed by a mere amendment to Rule 4 of the Conduct of Election Rules, 1961. And the Union government has all the power to amend the rules under Section 169 of the Representation of the People Act, 1951 (RPA).
Instead of resorting to such a simple and straightforward course to remove difficulties, the government chose to recommend promulgation of an Ordinance whose only real intent and purpose is to substantially nullify the judgment of the Supreme Court declaring voters’ right to information about the candidates as a fundamental right derived from Article 19 (1) of the Constitution.
Several times before, the government introduced legislation to nullify court judgments. The explanation 1 under Section 77 of RPA making nonsense of election expenditure ceilings, and the ill-advised Muslim Women’s Act in the wake of the judgment in Shah Bano case are two such instances. Earlier, when Supreme Court ruled that right to property could not be curtailed, constitutional amendments were resorted to. But never before was a fundamental right sought to be unreasonably and arbitrarily restricted by a legislation, in order to nullify the apex court judgment. Section 33 A is now sought to be introduced in the RP Act through this Ordinance explicitly prohibiting eliciting of any information from candidates by any court order or the EC’s directives, except what is provided in the law. This is the offensive provision which makes it unconstitutional, and violative of Article 13, which explicitly prohibits making any law which takes away or abridges the fundamental rights. This is the reason for the Presidt’s reservations on this Ordinance.
The second, spurious, concern of politicians is that of judicial interventionism. True, the judiciary’s insistence on appointing judges, their increasing unaccountability, and the penchant to aggressively usurp the executive role are all sources of concern for any true democrat, including those on the bar and the bench. But this judgment of May 2 is not about judicial usurpation, but it is about reasoned interpretation of fundamental rights. It is the Supreme Court’s duty as well as right to adjudicate on fundamental rights. Whatever reservations politicians may have about the role of judiciary, this is the wrong time and wrong issue to confront the judiciary.
The President has given the government the opportunity to gracefully resile from its indefensible position. Wisdom and propriety demand that the cabinet drops the Ordinance and introduces a comprehensive electoral reform Bill in Parliament providing for full disclosures and funding reform, among others. The disclosure issue is an opportunity, not a threat, to the politicians to break loose of the vicious cycle of criminalization, excessive and unaccountable expenditure, endemic corruption and increasing illegitimacy of the political process. If the government resorts to brinkmanship and reiterates its recommendation, the President will have no other moral and constitutional option but to seek the opinion of the Supreme Court under Article 143. Fundamental rights are too important to be allowed to be playthings in political games. As the custodian of the Constitution the President will have to act in defence of democracy. President Kalam proved that he is equal to this daunting task.