The President-Elect Dr A P J Kalam, minutes after the announcement about his election to the Highest Office of India said that political decisions are vital for any programme to succeed. It is a profounding statement especially in the context of what we are going to discuss in this article this week. It is also widely believed that Dr Kalam, a middle class intellect, would resonate with the wider cross-section of the nation and would echo their sentiments whenever situation demands. Common men down south in Ramnathapuram and up in the North in Kashmir identify themselves with Dr Kalam. The "Bharat Ratna" carries a huge responsibility when he is taking over the highest office on 25th July 2002. The issues where he would be expected to echo the common man's concern and play a vital role would be related to: the religious bigotry (Ayodhya issue), peace with neighbours (especially Indo-Pak tension and the much feared nuclear war), philosophy of development (issues related to Narmada, Tehri dam issues), issues related to privatisation, improvements in education, science & technology, freedom of press, judicial reform, electoral reform etc.

In a ground-shaking ruling on May 2nd 2002, the Supreme Court of India ruled that candidates contesting parliamentary or assembly elections must disclose to the public the following things: their criminal records (convictions, acquittals, charges, etc.) if any, their assets and liabilities (including those of their spouses and dependents), and their educational qualifications. The intention behind such a ruling is that the voter should have full information about the person whom he is voting for. The Supreme Court took inspiration from the Constitution with regard to the "Right to Information" (derived from Art. 19 of the Constitution) and rationalised this judgement.

This landmark judgement was pronounced in reply to a writ petition filed by the Association for Democratic Reforms (ADR) and the People's Union for Civil Liberties (PUCL) in Delhi High Court. The petition filed by ADR extensively cited Lok Satta's Election Watch Movement efforts in 1998, 1999 and 2000 elections. A bench of the Delhi HC ruled in favour of the petitioners. The ruling is so important that it has the potential to reform our electoral process. It would eliminate corruption, criminalization of politics, and inefficiencies in our public life to a great extent. Every sector of India's development could be positively affected by this directive of the Supreme Court.

Supreme Court gave some time limit for Election Commission to act on it. Almost for two months Election Commission of India was waiting for the Parliament to act on the SC directive. Unfortunately our Parliamentarians did not respond to this most important directive. In order to escape form the Contempt of the Court, Election Commission issued a notification on June 28, 2002 giving effect to the SC directive without waiting any longer for the suggestion from the government. So far so good. When the Election Commission made the directive of SC mandatory for contesting elections, shock waves went across the legislative community. It caused jitters and there comes the knee-jerk response form the government.
The Union Law Ministry has just finalised the Representation of the People (Amendment) Bill, 2002. This draft Bill, prepared on the basis of suggestions made at the all-party meeting held on July 8, was circulated by the Law Minister, Jana Krishnamurthy, to various political parties and leaders for their suggestions and comments by July 21. If necessary, the Government proposes to convene another meeting with leaders of various political parties, before giving shape to the Bill for its introduction in Parliament in the current session.

The controversial bill seeks to bar persons against whom charges have been framed by courts in two separate cases of heinous crimes from contesting elections as against the existing norm of two years' conviction in a criminal case ( section 5 of the Bill; proposed section 33 (B) of the RP Act, 1951). There is a weak provision to make such information public - but only by affixing a copy of affidavit at a conspicuous place. The heinous crimes defined in this section are: 121 IPC : waging war against government of India; section 302 IPC : Murder section; 364 IPC : kidnapping or abducting in order to murder; section 364A IPC : kidnapping for ransom section; 376 IPC : Rape section; 395 IPC : Dacoity; section 396 IPC : Dacoity with murder; section 18 & section 20 : Narcotic drugs & Psychotropic Substances Act, 1985; section 3 : Prevention of Terrorism Act, 2002;

One has to carefully interpret this Bill. On the surface of it, it looks like as if the government is interested to abide by SC directive in cleansing our political system. What this bills aims to achieve is that it wants to suppress the SC directive and in this process, it even wants to eliminate the somewhat stringent procedure which is already being implemented. Currently, any conviction for two years imprisonment would disqualify a nomination. This proposed bill mentions that for disqualification of nomination one has to be charged on NOT ONE but TWO heinous crimes. This is introduced in lieu of the existing clause with regard to two years conviction. Also, such disqualification does not apply if any criminal proceeding concerning the heinous offence is stayed by an order of a competent court. We all know how easy it is to get a stay on an offense.

Disclosure of convictions for offences listed in sections 8(1) & 8(2) of RP Act, 1951, or other offences for which the candidate has been convicted for two years or more is NOT provided. This is wholly retrogative step which negates the existing disclosure provisions as per the Election Commission's order of August 1997, which is already in vogue and has been replaced by the ECs order of June 28, 2002. As a result the EC will not have any information in respect of convictions for offences listed under sections 8(3) of RP Act, 1951. This, read with section 4 of the new Bill prohibits the EC from even eliciting information in order to enforce the existing provisions of disqualification provided under section 8 of the RP Act, 1951.
Under Sec. 8B of the Bill, a person against whom charges have been framed in two separate criminal proceedings in heinous crimes at least six months prior to the date of filing of nomination shall be disqualified till his acquittal or discharge in any such proceedings. This section would allow a prospective candidate to commit any sort of crime, even murder, within the six months before the election. Because as per the new provision, one has to be framed on two charges six months prior to election.
Sec. 33A of this Bill virtually nullifies the May 2 Supreme Court order by saying that "notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder''. Section 4 of this Bill explicitly states that irrespective of any court judgment or instruction of the EC, NO candidate shall be liable to disclose any information not required under this law or rules.

Thus, this Bill effectively nullifies the Election Commission notification on June 28 giving effect to the Supreme Court directions and dispenses with the imperative for furnishing information in an affidavit by candidates about their criminal antecedents, assets and liabilities and educational qualification. Furnishing of educational qualification of the candidates at the time of filing nomination has also been dispensed with in the Bill. In a nut shell, the ECs jurisdiction under Art 324 is sought to be nullified in respect of any disclosures in future.

When there is not even a murmur about the other Electoral Reforms that the government has been promising for long particularly curbing polling irregularities, accountable use of money power and measures to enhance representational legitimacy and internal party democracy, it is now very anxious to nullify the Election Commission Notification. The major objection to the notification of Election Commission is that the deciding authority , based on a verification to reject a nomination, lies with the Returning Officer and the political class feels that the EC order misplaces the power in the hands of Returning Officers. If the fear is justifiable, we can do away with this provision and we should keep in tact the other clauses in the notification. In case, after the electoral verdict, if the elected person was found to have furnished wrong or concealed information, he or she can be disqualified from their legislative membership. In stead of this, our politicians took it as an excuse to eliminate even the uncomfortable clauses currently being practiced.

When the SC's directive derived inspiration from the Constitution, our Parliamentarians are trying to indirectly assault it with an amendment to the existing law. This has clearly provoked the legal experts to discuss about it. If all the politicians come together overcoming their political enmity and abridge the fundamental right to Information by passing this bill in Parliament, would SC have any other recourse to ensure the Fundamental Right of Information to the citizenry? And what is the recourse to the Election Commission to exercise its legitimate jurisdiction under Art 324 from seeking information which is relevant to discharge of its duties under the law - for example, details of convictions which might disqualify a candidate?

The public and the media should raise upto the occasion and should relentlessly fight for the fundamental right. In particular, the media should be briefed about the implications of this Bill. If we do not act decisively now, we would miss a golden opportunity to reform our political system and strengthen our democracy, liberty and citizens' sovereignty. The political class, more importantly the incoming President Dr Kalam needs to seize the national mood as an opportunity and act as a catalyst in reforming our political system. It is the Nation which indirectly elected him as the President and he need not go soft on BJP or Congress. If these parties err, he should advise them to act as per the nation's mood. In this issue, he should convey a signal that he would act like a "Conscience Keeper".

As National Campaign for Electoral Reforms suggests, irrespective of the outcome on legislative and legal fronts, informed and assertive citizenry can make disclosures through civil society initiatives and media support a reality. No law prevents us institutionalizing disclosures through citizens' efforts. We should share experiences of citizens' initiatives and standardize techniques of benchmarking and disclosures.

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