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Saturday, July 13, 2002

We will disclose the assets of only the winning candidates and that too, to the presiding officer of the House

Only the Parliament has the right to legislate.” – Mr. Pranab Mukherjee, Congress (I);

Are we supposed to disclose even our electricity and telephone dues and let an ordinary Revenue official have the right to disqualify our nomination?” – an indignant Mr. Arun Jaitley, BJP official spokesperson.

These are the sample comments of parliamentarians in response to the Election Commission’s(EC) recent order on candidates’ disclosures. Not a single politician cited here felt that the citizens’ right to be informed about the candidates is a matter that needs to be addressed. This happens to be the world’s largest democracy!

The Indian political class has displayed amazing unanimity in rejecting the EC’s Order. Such consensus is rare, as is the speed at which it is acting. It aims to produce draft legislation to replace the EC’s order by July 15th, the scheduled opening of the Parliament’s monsoon session. What lies behind this uncharacteristic pace and cohesion? Self interest? Constitutional concerns to preserve parliament’s legislative authority? Legitimate fears of Returning Officers acting as “unguided missiles” in the hands of unscrupulous rival politicians? Whatever the reason, as a group, the parties seem determined to maintain the status quo and keep the people in the dark.

The EC’s order implementing the Supreme Court judgment of May 2, stipulates that all candidates disclose the details of any criminal cases pending against them, of their own and dependent family members’ finances, and of educational background in their nomination papers. The EC’s order is categorical. When you view it in totality the Returning Officer is not expected to have discretion. The objective is to enforce disclosure, and not to verify and adjudicate. Still, the concern of rejection on trivial grounds is justified, and the EC needs to address it.

The political class is expressing two other major concerns that we should carefully examine. The first is about the primacy of Parliament to legislate and the second is about the right to privacy of the candidate. Parliament ought to be, and is, the supreme legislative authority. The disclosure mandated by the EC under Art 324 is not legislation. It enforces the citizens’ right, implicit in the Constitution, to have knowledge about candidates. Implementing the Supreme Court’s directive needs just an executive order or change of rules. Though independent of government, the EC is a part of the executive. There has been no usurpation of Parliament’s power.

Next, there are two competing rights to be considered – the candidate’s right to privacy versus the citizens’ right to be informed and the community’s right to proper representation. When there is a conflict between the candidate’s rights and those of the community, the latter must prevail. At all times we should recognize that candidates are seeking the people’s mandate and seeking to exercise power on the people’s behalf. The right to privacy is an individual right. It must defer to the right of the public to an informed choice and to the candidates’ duty to honour this.

The purpose of the EC’s order is not to disqualify a candidate as much as to help the voter make an informed choice.  But the parties are all allied in an effort to subvert the voter’s right to know. But as their mandate is the people’s, we must stand firm in our support of this disclosure order. Fortunately there are many well-intentioned politicians. In order to multiply their number, citizens must have the means to choose the most suitable politicians as their representatives.

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