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Does the political class really want electoral reform?
By Syed Shahabuddin

The Ordinance Means Contempt for the Presidency, the Supreme Court and the Election Commission.

The promulgation of the Representation of the People (Amendment) Ordinance, 2002 on 24 August, 2002 is not the last scene in the continuing political drama on the theme of criminalisation and corruption in politics. After decades of public debate on electoral reform on how to curb the use of money and muscle power in elections and later on how to control the entry of criminals into Legislatures (and then into the Executive), came the Supreme Court judgement of 2 May, 2002 which put its seal on the voter's right to know the criminal record, educational qualification and financial status of the candidates. The judgement reads:-

"Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voters' speech or expression in the case of election would include casting of votes, that is to say, a voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter's right to know antecedents including criminal past of his candidate contesting elections is much more fundamental and basic for the survival of democracy."

Apart from the right to freedom of speech and expression, under the Supreme Court judgement, the voter's right to know proceeds more basically from his fundamental right to life and liberty enshrined in Article 21 of the Constitution.

It is universally accepted that those who enter public life and particularly those who stand for election cannot claim any right to privacy in matters which are essential to their suitability to serve as people's representative: education, character, antecedents, means of livelihood and financial status.

The Supreme Court ordered the Election Commission to ensure the voter's right to know. On 28 June, 2002, the Election Commission complied with the order by suitably amending the Conduct of Election Rules which required a candidate to file affidavits on his criminal record and financial status along with his nomination paper and empowered the Returning Officer to reject the nomination on the ground of wrong or incomplete information. More than anything else, given the experience of arbitrary rejection of nomination papers by the Returning Officers under political influence or pressure or with extra-legal motivation, the entire spectrum of political parties felt that the Election Commission had gone much beyond the voter's right to know, as desired by the Supreme Court, by empowering the Returning Officer with virtually arbitrary powers. It was not surprising that at an all-parties meeting convened by the Prime Minister to discuss the directive of the Election Commission, all of them spoke with one voice and authorized the Government to formulate a Bill to amend the Representation of the People Act, ostensibly to implement the directive of the Supreme Court but in a selective manner which indeed amounted to deliberate erosion. Even this bill was not quite acceptable to the political establishment. Since the Lok Sabha had become non-functional and was subsequently adjourned prematurely, the Government reformulated the proposed Legislation but gave it the form of an Ordinance. This inadequate Ordinance totally nullified the voter's right to know about the financial status and educational background of the candidates and limited submission of information about his criminal background, to cases of conviction rather than of being charged with criminal offences. In particular, his own assets alone were to be disclosed only by the winner, after his election, to the presiding officer, not also of his family members to the voters before the election.

The Ordinance was submitted to the President who returned it for reconsideration by the Council of Ministers and sought clarifications about the omissions and the alterations in relation to the guidelines contained in the judgement of the Supreme Court of May 2. The exercise of his prerogative was very much appreciated by the opinion-makers who have been canvassing for urgent electoral reform to reduce, as far as possible the play of money and muscle in the elections. Even the RSS organ Organiser felt compelled to counter that the President had 'struck a blow for the voter's right to know'.

However the Government chose to return the Bill to the President, as it was, and even denied him the courtesy of clarification on the points raised by him and argued that the Bill was based on a broad political consensus arrived at an all-parties meeting. This statement was not wholly factual, according to Sonia Gandhi, Leader of the Opposition and the President of the Congress, who claimed to have struck a note of dissent at the meeting. Acting in consonance with the democratic convention, the President signed the Ordinance which was promulgated immediately on 24 August, 2002. The President, the Supreme Court and the Election Commission were all over-ruled unceremoniously, without being shown 'the dignity of a parliamentary discussion'.

Normally the Ordinance-making power of the Executive is to be exercised in an emergency situation. The Government has not explained the urgency behind the speed with which it acted nor given any reason why it could not wait for the next session of the Parliament which is due by mid-November. The Supreme Court has often frowned on the excessive exercise of Ordinance-making power with the prima facie motive to bypass the legislature. This Ordinance amounts also to contempt of the Supreme Court. No doubt the Legislature can overrule the Judiciary by its law-making power but can the Executive do so, through an Ordinance?

The Ordinance has the usual clause which authorizes it to nullify "any judgement, decree or order of the court and any directive, order, or any other instruction issued by the Election Commission". It may be recalled that the Election Commission's instructions were based on the judgement of the Supreme Court which was grounded in fundamental rights. Eminent jurist Rajeev Dhawan has opined that the 'Government cannot sit in appeal on the Supreme Court through its Ordinance-power. Even the legislature cannot simply overturn a judicial decision. Yes, the Parliament can amend the Constitution and thus interfere with judicial decisions but even the Parliament cannot amend the basic structure of the Constitution which includes the fundamental rights'. So the Ordinance may have given some respite to the political parties which sponsor candidates tainted with black money and criminal background. But the respite may be shortlived. If the Congress takes its belated objection to its logical conclusion, the Government will fail to convert the Ordinance into an Act. And if the Supreme Court stands up to defend its dignity, the Ordinance may be struck down as unconstitutional, even before the Parliament meets. On 20 September, 2002, the Supreme Court has acted on a bunch of petitions questioning the legal validity of the Ordinance and ordered notice to be served on the Union and the Election Commission. The case has been scheduled for final hearing on 8 October, 2002.

What has surprised the people is the near unanimity of the political parties and their solidarity when confronted with electoral reform. It has raised a basic question: do the political parties which pay lip service to the need for electoral reform, day in and day out, really want to dissociate themselves from the corrupt and the criminal elements of our society and whether in a situation of brutal competition, they all feel the need to depend strategically and factually on the support of the mafia and the 'contractor' class, to the extent of paying their price in the form of their nomination as candidates and entry into the legislatures? Yes, as stated above, they cannot agree to arbitrary powers being vested in the Returning Officer to reject a nomination by a summary decision which has no judicial remedy. But the Bill and the Ordinance, it is sad to see, have not been drafted in a manner to protect the voters right to know which is essential to the proper functioning of the democratic system and do not provide for disqualification, as in the Supreme Court judgement and Election Commission' s directive, of the candidate if he stands charged, though not convicted, with a criminal offence of a heinous nature! The social and political acceptability of the musclemen and the corrupt is indeed a sad commentary on the moral state of our society and indicates the decay of our political system, though we take pride in being the biggest democracy in the world.
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