On May 17, 2021, the Association for Democratic Reforms (ADR) in public interest had filed a writ petition under Article 32 of the Constitution challenging the constitutional validity of the mode of appointment of the chief election commissioner and election commissioners by the Government of India.

It was held that this procedure of appointment of CEC and ECs by the executive without any consultation or concurrence of other entities was violative of Article 14 (equality before law) and Article 324(2) which mandates Parliament to make a just, fair and reasonable law for appointment of members of the Election Commission of India (ECI)

A Big Electoral Reform

This was on the lines of the recommendations of the Law Commission’s 255th Report of March 2015, the Second Administrative Reforms Commission in its fourth Report of January 2007, the Dinesh Goswami Committee Report of May 1990, and Justice Tarkunde Committee Report of 1975.

The landmark judgment of March 2 by a five-member Constitution bench of Supreme Court has ruled that the selection of members of the ECI would be done by a Committee comprising the Prime Minister, the Leader of Opposition or in his/her absence, leader of the largest opposition party in the Parliament, and the Chief Justice of India. This system will be in vogue till the Parliament makes a law in this regard.

Why this change in the selection procedure was necessary is borne out by the way certain decisions were taken by the ECI over the last few years and the manner in which members were appointed by the Government. Successive Governments since the 1950s have failed to enact a law and the appointment of the CEC and ECs was done solely by the Executive. This was incompatible with Article 324(2) and hence arbitrary. Recommendations of various committees as mentioned above were studiously ignored by all Governments.

Perception Matters

Democracy is a facet of the basic structure of the Constitution and in order to ensure free and fair elections and to maintain healthy democracy in our country, the ECI should be insulated from political and or Executive interference. The ECI is not only responsible for conducting free and fair elections but it also renders a quasi-judicial function when disputes arise between various political parties including the ruling party in government and other parties.

Hence the perception amongst the voters, political parties and others about the Election commission must be that it is non-partisan, impartial, independent, insulated from interference by the Executive, and is a fair constitutional body. This perception had unfortunately taken a beating over the last few years.

In March 2021, the Citizens Committee on Elections (CCE) chaired by retired SC judge Madan Lokur examined the 2019 general elections and gave the following observations:

1. ECI deliberately delayed the announcement of elections to enable the inauguration blitz of a slew of projects (157) scheduled between February 8 and March 9.
2. It was the longest election in the country’s history.
3. There was lack of consistency by the ECI in enforcing the Model Code of Conduct and a perception of ECI treating the ruling party with kid gloves thus disturbing the level playing field.
4. The Election Commissioner who dissented and stood his ground was eased out from the ECI.
5. Another disturbing phenomena was the abuse/ misuse of armed forces for election propaganda. This caused anger among the veterans and they wrote to the President but received no response.

When Executive Discretion Ends

The SC judgment will satisfy the ECI too as over the last many years various CECs have been demanding security of tenure. As per the Constitution, the tenure should be 6 years and retirement at 65 years. However if we examine the tenure duration of last few CECs since Dr Nasim Zaidi, the tenures have been: Zaidi 4 years 10 months, Joti 2 years 8 months, Rawat 3 years 3 months, Arora 3 years 7 months, and Sushil Chandra 3 years 3 months. For security of tenure now the same rules are applicable for the Election Commissioners as for the CEC.

The SC also questioned the Government about the lightning speed at which Arun Goel was appointed EC after he sought voluntary retirement, which was accepted, file cleared and he was appointed EC, all in 24 hours. All this happened while the Supreme Court was hearing the case and since the retirement of Sushil Chandra in May 2022, one post of EC had been lying vacant for 5-6 months.

Though criticism of the ECI by political parties may still continue, they will lose their moral authority as they too will have a say in the appointment of the ECs in future. Whether the new selection procedure will improve the functioning of the ECI remains to be seen as ultimately it depends on the integrity of the person occupying the chair. However it is hoped that with the new process of appointment coming into force, the perception about the ECI will change for the better.

The article was originally published on “MoneyControl.com“.

This article is written by Maj Gen Anil Verma (Retd), Head of ADR.

The group’s feeling is that “the right to vote is being taken away from the citizen and given to the EVM machine.” Following the 2019Parliamentary election, several CSOs highlighted discrepancies in 347 seats between the number of votes cast and the number of votes counted, raising concerns that millions of votes were missed or miscounted. In six seats, the discrepancy in votes was higher than the winning margin. But no clarification was received from the ECI, and the matter is now pending in the Supreme Court in a PIL. Hence, the public demand to “count every vote and make every vote count.”

With the introduction of the Voter Verifiable Paper Audit Trail (VVPAT) in all EVMs, there are now two votes: one recorded in the EVM memory and one printed by the VVPAT. Rule 56D(4)(b) of the Conduct of Election (Amendment) Rules, 2013, says that, in case of a dispute, the VVPAT slip will be the real vote as per Section 61A of the Representation of People Act, 1951, and not the electronic memory in the EVM. Despite this rule, critics point out that ECI has been refusing to count 100% of VVPAT slips and keeps on counting only the EVM memory, which is not the real vote. They allege that ECI is defending its action and has filed a false affidavit in the Supreme Court.

The group recognises that purely EVM-based voting and counting does not comply with ‘Democracy Principles’ which require that each voter be able to verify that his or her vote is “cast as intended, recorded as cast, and counted as recorded.” A panel of national and international experts testified before the Citizens Commission on Elections (CCE), which is chaired by former Supreme Court Justice Madan B Lokur. Experts sought clarification on seventeen critical points on EVM voting and counting. Still, there has been no acknowledgement, let alone any response, from the ECI.

The group is therefore making the following recommendations: EVMs cannot be assumed to be tamper-proof. A voter should be able to approve a VVPAT printout before the vote is finally cast. The security of the VVPAT slips and the EVM machines after polling and before counting and auditing must be ensured in a verifiable manner. The audit should be based on manual counting of all the VVPAT slips to improve voter confidence.

Money Power
The problem of free and fair elections would not be solved merely by counting the VVPATs instead of the EVMs. The group feels that the “fast-rising economic oligarchy in the country, threatening India as a welfare state, is the direct fallout of this extreme criminal and money power in elections, which is the fountainhead of all corruption in the country.” It compromises the integrity of democracy in multiple ways: it creates barriers for ordinary citizens to enter politics; excludes honest candidates and parties; leads to corruption and big money controlling the policy-making power of the state, leading to “wasteful, inefficient, and anti-democratic directions and exacerbation of polarisation.”

The government, using the Money Bill route to bypass Rajya Sabha, introduced electoral bonds, which have increased the opaqueness of elections and the role of big money in electoral politics. Corporate loans are being wiped off in return for corporate funding of the party in power. As is evident in the happenings in several states, money is being used to alter the electoral mandate given by people by engineering resignations and defections of MLAs. As a result, the group demands that the Electoral Bonds Scheme be terminated in its current form immediately. Details of donations to political parties, including amounts and names of donors, should be in the public domain.

Media Misuse
The group accuses ECI of not taking action on the many media violations in the past elections, despite several guidelines and codes. ECI failed to curb fake news online; procrastination, silence, and inaction characterised ECI’s responses, even to serious violations of the Model Code of Conduct and media code.
The aim of the group’s campaign is to involve civil society groups in Karnataka before the elections to create voter awareness on the dangers being faced by the nation’s democracy through the 3Ms of machine, money, and media; check the accuracy of electoral rolls; prepare citizens’ manifestos that make the above demands on political parties; enhance people’s ability to vote in an informed way by disseminating information about candidates’ backgrounds; understand the ways in which social and other media are creating polarisation through hate-filled texts, posts, and tweets; and demand that the ECI take swift and exemplary action against offenders; such efforts will be the only way to ensure free and fair elections and stem the steep anti-democratic slide the country is currently undergoing.
(The writer of this article, Kathyayini Chamaraj, is the State Coordinator of Karnataka Election Watch (ADR) and an Executive Trustee of CIVIC-Bangalore.)

This article was originally published in Deccan Herald.

On Thursday, the Supreme Court reserved its judgement on a batch of petitions challenging the appointment process of election commissioners, the officers who comprise the Election Commission – the body responsible for conducting national and state elections.

Scroll.in spoke to Jagdeep Chhokar, co-founder of the non-governmental organisation Association for Democratic Reforms and one of the petitioners in the case, about why he filed the petition and what he hopes to achieve.

Edited excerpts from the interview below.

What are the problems in how the election commissioners are appointed today? Does the process have any checks and balances?

According to Article 324(2) of the Constitution, they are appointed by the president subject to any law made by the parliament in this regard.

Then there are other articles in the Constitution that say that the president will work under the advice and guidance of the cabinet. So effectively, what it means is that the cabinet appoints the election commissioners.

And there are no checks and balances. The prime minister sends a recommendation to the president on behalf of the cabinet, and then the president appoints. The Union government has the entire discretion.

The other issue is that when the chief election commissioner’s term gets over, there is always a mystery about who will be made the chief election commissioner.

In general, so far, it has always by and large happened that the senior of the two election commissioners gets appointed as the chief election commissioner. But there is always this speculation about who will be made the chief election commissioner.

The other problem is that while the chief election commissioner cannot be removed from his position unless there is a process of impeachment like that of a Supreme Court judge, the other two election commissioners can be removed from their positions merely on the recommendation of the chief election commissioner.

So that is another problem. Because if the two election commissioners have this thing in their mind that the chief election commissioner can recommend my removal, then perhaps they would find it difficult to take a position against the chief election commissioner.

What’s the relief that you want from the court in this particular case?

In this case, we want that the selection of the election commissioner should be done by a collegium consisting of the prime minister, the leader of the Opposition and the chief justice of India.

The second is that election commissioners should be given the same constitutional protection as the chief election commissioner.

And the third is that it should be laid down, specifically, that the senior-most election commissioner will become the chief election commissioner.

These are the things that we have proposed. There would be many more that we will learn over time.

Have there been any controversies in the past regarding the appointment of election commissioners?

There is a checkered history [regarding election commissioners]. Earlier, the election commission used to be a single-member commission. There used to be only one chief election commissioner. Then somewhere down the line, during the time TN Seshan was the chief election commissioner, he was doing a lot of things that the government did not approve of. So to put a check on his power, so to say, the government [in 1989], through the President, created the post of two more election commissioners.

Now the Election Commission was a three-member commission and the decision will be made by the majority, hoping that these two will check the powers [of the third commissioner].

Then, about three or four years ago, there was one election commissioner who dissented from a decision by the other two. And this happened on some issues which had something to do with allegations of violation of the Model Code of Conduct by the prime minister and the home minister.

So then there were reports that this particular election commissioner, his past was being searched with a fine toothcomb. And there were apparently some kind of raids or intimidation of his wife and his son and so on. So this went on for a while, and then it was reported that this gentleman has been appointed as a vice president in a multilateral body. So he resigned from the election commissionership.

Usually, who are the people who are appointed election commissioners?

All retired bureaucrats, by and large, Indian Administrative Service officers. There are very few exceptions, but they are all also bureaucrats from other central services.

Are there any appointments that raise a suspicion about them being close to the Union government?

A lot of them. I would not like to name anyone. But this is all circumstantial evidence. There could be people from a particular state cadre, who might have a preponderance [towards the government]. And then somebody who has worked with some senior-level politician in the past very closely.

These kinds of things often happen.

One of the reasons why these things are brought up is because how these appointments are made is not known to anybody. So out of the blue, you have an announcement that so and so has been made election commissioner.

For example, this appointment that was made a few days ago – the post had been vacant for something like six months. And the hearing in the court started and an application was filed that there is a vacancy that should not be filled until the case is decided.

And the very next day, a serving Indian Administrative Service officer who was the secretary to the government of India took voluntary retirement from service. He was given voluntary retirement, and the next day he was appointed as an election commissioner.

It could be a sheer coincidence, but when things happen, sometimes it defies that it is a coincidence. So that creates doubts. Actually, a lot of it is a lack of transparency.

If there was a process of selecting election commissioners that was transparent, such doubts will not be raised.

What instances have been there recently where there have been allegations of the election commission acting in a way that distorts free elections?

So there are mysterious things that happen and when not reasonable explanations are coming forth, then one wonders what is going on. Electronic voting machines are found in strange places. There are constituencies where a large number of voters are not found on their voters’ list.

Some people do insinuate that people of particular categories are found to be missing from the electoral rolls. The Election Commission has to answer for it.

Then, there are violations of the Model Code of Conduct. Somebody makes a speech that can be considered to be seeking votes on religious grounds. And that is ignored. Whereas another member of another party says something similar in a slightly different context and that person is given a notice.

So similar kinds of infractions by people of different parties being treated seemingly differently.

Take, for example, on November 7, the Finance Ministry issued a notification that in a year when there is an Assembly election, an additional window of 15 days for the sale of electoral bonds will be available.

But elections are still happening in Himachal Pradesh and Gujarat, and the Model Code of Conduct is in force. And the Model Code of Conduct says that the government cannot introduce any new policy which may have a bearing on the result of the election without taking permission from the Election Commission of India.

So this announcement is a violation of the Model Code of Conduct. And people have written to the Election Commission and there has been no response.

There is also the thing about the announcement of dates. For example, even this time, for Gujarat and Himachal Pradesh elections, the dates when the result will be declared were announced. And dates of polling for Himachal Pradesh were announced, but the dates of polling for Gujarat were not announced.

So some people have felt that this is not the right thing to do and perhaps leeway was being given to a particular political party to do some announcements before the dates of polling are announced. So these kinds of things keep happening, and they create misgivings about the impartial role that the Election Commission should be playing.

Sometimes in a small state, elections are held in seven phases and [other times], in a similar sized state, it is held in one phase. There are rumors that this is being done so that particular people can campaign in every phase, and so on.

A similar process exists for the appointment of the Central Bureau of Investigation director. But still, there have been allegations of unfairness about these appointments also. So will this panel help with bringing fairness to the appointment of election commissioners or will it only be slightly better than the current position?

It will be significantly better. If you recall, in the appointment of the CBI director a year ago, the then chief justice did not agree with what was being proposed and then names were changed.

See, the process is finally managed by three or four people. But if each of them is true to their jobs, then they will do what they think is the best for the country as a whole.

And then if one of them finds that the other two are in collusion, then it would be that person’s responsibility to bring it out in the public domain.

Allegations also exist for state election commissions. For instance, like in West Bengal, there were allegations that the Panchayat polls were influenced in favor of the state’s ruling party. What do you think about the reforms in state election commissions?

State election commissions are a totally different ballgame.

Because there is only one state election commissioner in most places, and the appointment is done by the governor at the recommendation of the state government. And in most places, these are retired officers who are not direct recruits to the Indian Administrative Service but who have been departmentally promoted to the Indian Administrative Services.

So they are sort of supposed to be more malleable than the direct entry Indian Administrative Service officers. And are perhaps amenable to greater pressure than the central Election Commission.

So that is a very different activity. Our petition does not cover the state Election Commissions.

The article was originally published on Scroll.in.

Promises fly thick and fast during election time. Political parties seek to outdo one another in getting the attention of voters. In the heat of the moment, mostly anything goes and voters are none the wiser about how some of those promises will be fulfilled — for instance, where will the money come for that scheme or subsidy.

Can this runaway situation be reined in? Is it possible to make parties and political leaders more accountable even as election promises are being drummed up rather than later when they have failed to deliver on fanciful ideas? Does an answer to the pernicious culture of freebies lie in stricter rules at election time?

The Election Commission of India has proposed that parties spell out their promises in a form that will go along with their manifestoes. The financial implications of every promise, the commission contends, will then be known so that there is a level playing field during elections. No one will be able to promise the moon and get away with it, as often happens now.

The idea was floated by the commission on October 4 in a letter to parties and laid open to discussion, but it has met with protests that the commission is exceeding its mandate, which is to hold free and fair elections, and instead getting into how governments run.

If the commission’s proposal goes through, parties would have to spell out before an election what a promise is going to cost and how this expense will be met. They will have to state whether it will be through rationalizing expenditure, non-tax revenue, additional taxes or loans. To this end, the commission has further suggested that chief secretaries of states provide the budget estimate (BE) and revised estimate (RE) to show what funds are available.

Knowledgeable and impartial activists who have for long been demanding transparency in the running of political parties are baffled by the commission’s proposal. They don’t think it can be seriously implemented. In fact, they fear that such rules will curtail democracy rather than enrich it.

Jagdeep Chhokar of the Association for Democratic Reforms (ADR), which has been campaigning for cleaner elections and accountable parties, says: “I see this with scepticism. Many things in the commission’s letter are less than clear. The entire scheme aseems to be unimplementable and an exercise in showing a lot is being done. My apprehension is that on the ground nothing may happen.”

Chhokar points out the commission had earlier shied away from taking up the issue of freebies, saying it would be an “overreach of powers.” It told the Supreme Court on March 2 that the giving of freebies was a matter of policy, to be decided by the party concerned, and that it was for voters to judge whether the freebies were economically viable or not.

Chhokar quotes the commission as saying in court: “… offering any mass distribution of freebies either before or after the election” was a “policy decision of the party concerned and whether such policies are financially liable or it has an adverse effect on the economic health of the state, is a question that has to be considered and decided by the voters of the state.”

The commission said it could not regulate “such policies” which “may be taken by the winning party when they form the government. Such an action without enabling provisions in the law will be an overreach of powers.”

Chhokar wonders what has changed between March and October for the commission to now say that it “cannot overlook the undesirable impact of some of the promises/offers on the conduct of free and fair elections in maintaining a level playing field for all parties and candidates.”

Chhokar argues the electoral bonds would be a better issue for the commission to take up if what it is concerned about is providing a level playing field. At present, parties don’t need to disclose from whom they have received political donations by way of bonds, it is only the amounts that are known. The matter is in court.

“Now, the promises made by political parties in their manifestoes are of great concern, but, according to the Election Commission, something like electoral bonds does not distort the political field at all. There are many other specifics in this letter I can point to. But, let me add, between March 2 and October 4 there was a significant event. On July 16, the prime minister talked about what is called the ‘revdi culture’ of the country. I don’t know if there is any correlation in these three days,” elaborates Chhokar.

“But for the Election Commission to change its view from March 2 to October 4 without giving any justification for this change is surprising, to say the least, and trying to provide a level playing field only on the basis of what has been said in election manifestoes and not something as glaring as the electoral bonds raises weighty issues. Weighty is the Supreme Court’s word, not mine,” he says.

The issue of unsustainable freebies underlines the much larger question of distinguishing between party and government. The responsibility for executive actions devolves on the government, which when it comes into office has wide responsibilities to those who voted for it or didn’t.

“So, the government that is formed as a result of the elections, is not the party which contested the election and this distinction has got blurred very, very badly. Everyone seems to assume the government is the party and the party is the government. There should be a difference between party and government,” explains Chhokar.

Promises also aren’t only made in manifestoes, Chhokar points out. They are made in speeches during election time and before election time. He refers to a judgment mentioned in the Election Commission’s October 4 letter — S. SubramaniamBalaji versus the state of Tamil Nadu and others on July 5, 2013. In this, the Supreme Court says, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date of elections.

“This is a fundamental mistake we seem to make — that elections happen only from the date of the announcement of the election till the date of counting of votes. Election is not a process confined to those two to three weeks. Election is a process that goes on 24/7 around the year,” says Chhokar.

“Aren’t the advertisements one sees in national newspapers by governments in one state or the other in the country related to elections?” he asks. “Elections may be two years away but every action that a political party takes has an impact on the election. To assume that the Election Commission should act only after the announcement of the date, is a fallacy.”

Chhokar says holding of political parties accountable is long overdue. But it can’t be restricted to the promises they make at election time. Political parties should be made accountable under the law, which they aren’t at present.

“I have specific instances where so-called leading political parties have got together to amend the law so that the prosecution of parties is avoided. They have come on record saying otherwise there would have been no choice but to prosecute parties. Why shouldn’t political parties be prosecuted if they violate the law? So political parties must be held accountable for all their actions,” he says.

Chhokar’s big fear is that there is an attempt to reduce the electoral exercise to a mechanical process. He worries about talk of reducing the expenditure on elections. So also the Election Commission’s suggestion of BE and RE figures within which promises can be made. “What we are being told is that within this limited area you can do whatever you like and then there will be elections. That is not how a representative democracy works. People choose their representatives and political parties have to represent them,” he says. “Somebody has found it very useful to use this term ‘revdi culture’. And, therefore, the whole country is getting behind it. To me there appears to be a systematic attempt to undermine the entire electoral process,” he cautions.

The article was originally published on Civil Society Online.

चुनाव का एलान होते ही नेताओं का दलबदल शुरू हो गया है। नेताओं के इस दलबदल में सबसे ज्यादा ठगा महसूस करता है मतदाता। ऐसा इसलिए भी होता है कि हमारी चुनावी व्यवस्था में मतदाताओं से पूछकर उम्मीदवार उतारने की कोई प्रक्रिया ही नहीं है। राजनीतिक पार्टियां किसी को भी कहीं से खड़ा कर देती हैं और मतदाताओं को उन्हीं में से चुनना होता है। उम्मीदवार का फैसला जमीन पर नहीं बल्कि पार्टियों के हाईकमान से होता है। जनता की इसमें कोई भूमिका नहीं होती। इसीलिए पार्टी बदलते समय भी नेताओं को जनता के प्रति कोई जवाबदेही नहीं अनुभव होती है।

कई साल पहले कांग्रेस ने हैदराबाद के एक नेता को मुरादाबाद में उतार दिया। स्थानीय कांग्रेसियों ने इसका विरोध किया और प्रचार करने से मना कर दिया। उन दिनों सौ रुपए रोजाना लेकर पोस्टर आदि लगाए जाते थे और प्रचार का काम किया जाता था। उस उम्मीदवार ने उन्हें तीन सौ रुपये रोजाना देने का आफर दिया। सभी मान गए। प्रचार शुरू हो गया। इसलिए पैसे के दबाव में स्थानीय कार्यकर्ता भी विरोध से कतराते हैं।

1935 में बंबई (अब मुंबई) में सहकारिता के लिए काम कर रहे वैकुंठ भाई मेहता को लोगों ने चुनाव में उतरने को कहा लेकिन वह नहीं माने। उन्होंने महात्मा गांधी को पत्र लिखकर पूछा कि क्या करना चाहिए। महात्मा गांधी ने उन्हें जवाबी पत्र में कहा कि लोग कह रहे हैं तो आपको जरूर लड़ना चाहिए, लेकिन आप किसी से वोट मांगने नहीं जाओगे और कोई पैसा खर्च नहीं करोगे। वैकुंठ भाई मेहता ने ऐसा ही किया। वे भारी मतों से चुनाव जीत गए।

ऐसा नहीं है कि लोगों से जुड़ा व्यक्ति चुनाव नहीं जीत सकता है। लेकिन राजनीतिक दलों ने पैसे को इतना महत्व दे दिया है कि अब केवल पैसे वाले या आपराधिक पृष्ठभूमि वाले ही आगे आ रहे हैं। आंकड़े बताते हैं कि 50 प्रतिशत से ज्यादा सीटों पर आपराधिक पृष्ठभूमि वाले उम्मीदवार हैं। राजनीतिक दल भी अब कुछ धनाढ्य सात-आठ परिवारों की बपौती बन गई हैं। ऐसे में मतदाता लाचार होकर रह जाता है।

एक समस्या यह भी है कि चुने गए लोग भी अक्सर पार्टी हाईकमान के हाथ की कठपुतली ही होकर रह जाते हैं। दलबदल विरोधी कानून लाया गया था कि विधायकों, सांसदों की खरीद-फरोख्त न हो सके। हालांकि अब देखने में आता है कि आधी पार्टी ही टूटकर दूसरे में मिल जाती है। जब तक राजनीतिक दलों की कोई जवाबदेही तय नहीं होगी, तब तक इसका कोई हल निकलता नहीं दिख रहा है।

यह लेख मूल रूप से दैनिक जागरण द्वारा प्रकाशित है.

There are two fallacies in this formulation. One, ballot boxes are not of any use unless citizens, actually cast their votes into the ballot boxes. The other fallacy is about the people elected by those ballot boxes. What type of people are they? Data shows the number of MPs in the Lok Sabha with criminal cases against them has been growing. The Association for Democratic Reforms (ADR) collected this data from the self-sworn affidavits of candidates contesting elections to the Lok Sabha in compliance with decisions of the Supreme Court of India in 2002 and 2003.

Readers can judge the quality of “the people who are elected by those ballot boxes” from this table:

So, what’s new, you might ask? Till the year 2004, voters had no way of knowing what “type” of people they were casting their votes for in the “ballot boxes”. This was because of a specific provision in law that permitted a sitting legislator, convicted in a criminal case, to continue to be in that position and contest further elections, whereas a  common citizen was barred from contesting elections for six years if convicted in a criminal case. But we are getting ahead of our story.

HOW IT ALL BEGAN

Around 1998-99, there were a lot of media reports about people with pending criminal cases against them contesting elections and getting elected. Around the same time, in May 1999, the Law Commission of India submitted its 170th report,  Reforms of the Electoral Laws. In a comprehensive review of all the electoral laws one of the recommendations of the commission was:

“In the interest of transparency, we have also suggested provisions making it obligatory upon every candidate to declare the assets possessed by him or her or by his/her spouse and dependent relations and the particulars regarding criminal cases pending against him/her, in the nomination paper itself.”

A group of public-spirited persons decided to file a Public Interest Litigation (PIL) in the Delhi High Court in December 1999, requesting the implementation of the above recommendation. The Delhi High Court, in a decision on November 2, 2000, upheld the petition and directed the Election Commission of India (ECI) to collect and make the necessary information available to voters.

The Union of India  (UoI) filed an appeal in the Supreme Court against the Delhi High Court’s decision. Several political parties became interveners in the case, in support of the stand of the UoI, opposing the Delhi High Court decision.

The Supreme Court  gave its judgement on May 2, 2002, upholding the High Court judgement, and directed the ECI to get  information on a sworn affidavit from each candidate seeking election to Parliament or the state legislature, as a necessary part of his nomination paper, on the criminal, financial and educational antecedents of the candidate.

The ECI’s implementation of these directions made the entire political establishment very unhappy.  In an all-party meeting on July 7, 2002, it was unanimously decided that the Supreme Court’s decision and the consequent order of the ECI would not be allowed to be implemented, and the Representation of the People Act, 1951 (RP Act), would be amended, in that very session of Parliament if necessary, to nullify the Supreme Court’s decision and the ECI order.

A bill to amend the RP Act was accordingly prepared but it could not be introduced in Parliament as the Lok Sabha was adjourned sine die.  The government then decided to issue an ordinance.

Given that the draft of the ordinance seemed to be prima facie unconstitutional, about 30 civil society representatives met the President and cautioned him about it. When the ordinance was sent to the President, he “returned” it. The Cabinet, however, sent it to the President again and he had to sign it following established convention. The Supreme Court’s decision of May 2, 2002, thus stood nullified.

The struggle did not end here. Three PILs were filed in the Supreme Court challenging the amendment of the RP Act. All three petitioners were civil society organisations: Association for Democratic Reforms, People’s Union for Civil Rights and Lok Satta.

The Supreme Court gave its judgment on March 13, 2003, holding that the amendment of the RP Act was unconstitutional and null and void. It restored the Supreme Court judgment of May 2, 2002, saying it had “attained finality” and that there shall be no appeal against that judgment.

This effort, from 1999 to 2003, is what enabled voters/citizens to know what type of people were “elected by those ballot boxes” and laws made by whom are the “quintessence of democracy”.

THE AFTERMATH

Yet the number of tainted MPs in Lok Sabha has consistently risen over the last four general elections! So, what impact has all this effort had?  On the face of it, the proportion of people with criminal cases pending against them in the Lok Sabha has increased. But if one goes into some details of the electoral process, it is revealed that most of the reasons for this increase can be found in the laws made by the people who are elected by those ballot boxes!

Further, the root of all these mysterious outcomes lies in an institution called “political parties”. What political parties in India are, and what they should be, is best described in the following paragraph of the 170th Report of the Law Commission of India:

“If democracy and accountability constitute the core of our constitutional system, the same concepts must also apply to and bind the political parties which are integral to parliamentary democracy.  It is the political parties that form the government, man the Parliament and run the governance of the country.  It is, therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the political parties.  A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country.  It cannot be a dictatorship internally and democratic in its functioning outside.”

The National Commission to Review the Working of the Constitution (NCRWC) chaired by the former Chief Justice of India, Justice M.N. Venkatachaliah, in its report submitted on March 31, 2002, said:

“The Commission recommends that there should be a comprehensive legislation (may be named as the Political Parties [Registration and Regulation] Act), regulating the registration and functioning of political parties or alliances of parties in India.”

These recommendations were made in 1999 and in 2002, but it seems “the people who are elected by those ballot boxes” have not had the time or inclination to implement them.

SEVERAL INITIATIVES 

On the other hand civil society activists, or shall we call them ‘Fourth Generation Warriors’, have been trying to get exactly the same done.

The ADR requested a committee chaired by Justice M.N. Venkatachaliah, to draft a bill to regulate the functioning of political parties. This committee drafted what it called the Political Parties (Registration and Regulation of Affairs, etc.) Bill, 2011. This draft bill has been shared with all the major political parties but none has shown any inclination of taking it up.

In addition, several initiatives have been made by civil society groups to cleanse the electoral and political systems.  Some representative examples are listed below:

• In June 2013, the Central Information Commission (CIC), in response to an application by ADR and S.C. Agrawal, declared in a unanimous, full bench decision, that the six national parties — the BJP, INC, BSP, CPI, CPI(M) and NCP — are public authorities under the Right to Information (RTI) Act, 2005. All six parties refused to comply with the CIC’s order. In May 2015, the same petitioners filed a petition in the Supreme Court to implement the CIC’s order. The petition is still pending in the Supreme Court.
• In July 2013, the Supreme Court set aside clause 8(4) of the RP Act on petitions filed by Lily Thomas, a public-spirited Supreme Court lawyer, and Lok Prahari, a civil society group in Lucknow. As a result, sitting MPs and MLAs were barred from holding office on being convicted in a Court of Law.
• In September 2013, the Supreme Court ruled, in a PIL filed by the People’s Union for Civil Rights, that the right to register a “none of the above (NOTA)” vote in elections should apply and ordered the ECI to provide such a button in the Electronic Voting Machines (EVMs).
• Again, in September 2013, on a PIL filed by Resurgence India, another civil society group, the Supreme Court ruled that no columns or boxes should be left blank in affidavits filed as an essential part of the nomination papers, in terms of its judgment in the 2003 ADR case.
• In March 2014, the Delhi High Court in its judgement in a PIL filed by ADR, held that the BJP and the Congress were both guilty of accepting funds in violation of the Foreign Contribution (Regulation) Act, 1976 (FCRA 1976), and directed the Ministry of Home Affairs and the ECI that appropriate action under FCRA 1976 be taken against them within six months of the judgment. Both the parties first filed appeals in the Supreme Court and then withdrew them. In the meantime, the government amended the FCRA twice, once with retrospective effect, eight years after the Act being amended had ceased to exist! The matter is still sub judice.
• In September 2017, ADR and Common Cause, another civil society group, filed a PIL in the Supreme Court challenging the constitutional validity of the Electoral Bonds scheme introduced by the government, enabling anonymous donations to political parties, in any amount, by anyone (including Indian and foreign companies with branch offices in India).

In an interim order on April 12, 2019, the Supreme Court said that “the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country. Such weighty issues would   require an in-depth hearing…”. But the learned judges of the Supreme Court have not had time to hear the petition till now, while elections continue to be held and unaccounted money keeps flowing.

The third highest functionary in the security establishment of the country seems to have a lot on his hands in dealing with Fourth Generation Warriors!

The article was originally published on Civil Society.

Prof Chhokar speaks to Sanjukta Basu, from National Herald, on the struggle for free and fair elections.

The Election Commission says linking of the electoral roll with Aadhaar data base will help clean up electoral rolls. Will it really result in error-free electoral rolls?

Aadhaar and voter ID cards are conceptually two different things, one is a proof of identity and residence while the other is a proof of citizenship. They should not be linked for several reasons. Firstly, the Supreme Court verdict is clear that Aadhaar can only be used for government services and benefits and no other purpose. Voting is not a benefit; it is a fundamental right. Therefore, this move is clearly against Supreme Court’s judgment.

Secondly, in 2015 the Election Commission of India (ECI) launched the NERPAP (National Electoral Rolls Purification & Authentication Programme) and started linking Aadhaar and voter ID. But the move was soon suspended by the Supreme Court. But by then around 55 lakh people in Andhra Pradesh and Telangana were disenfranchised due to various technical problems in the linking process.

My wife and I both personally experienced some of these problems when our finger-prints did not match. They had to clean the fingers, followed by cleaning the machine; it was a terrible hassle. The AADHAR database itself is full of discrepancies and needs correction. So, to make that the basis of voting is deeply flawed.

Is the apprehension that such linkage can be manipulated or misused by political parties genuine?

Definitely. It has the potential of selective disenfranchisement of various groups based on any criteria. The risk is genuine no matter which party is in power. As of now, whoever can access the data may potentially misuse it. Let me also add, this itself is not the end, it is one of the means towards a larger, more worrying objective which includes one nation one election, one electoral roll for all elections and so on.

What steps should the Election Commission take to clean up the electoral rolls? How much have they succeeded till now?

ECI is trying a quick and technical solution to a very serious problem. The cleaning up of electoral rolls is nobody else’s job but ECI’s and it can only be done by going to door to door and putting in real blood and sweat, that is what EC is mandated to do.

What are some of the important recommendations related to electoral reforms made by the EC, Law Commission and ADR, which have not been accepted as yet by the Government?

It is a long and sad saga. Reforms, criminalization of politics, role of money in politics have been talked about for 50-60 years but no government ever wanted to actually do anything about it. The existing system benefits all governments across party lines and they have found ways to play around the system and are scared of any change.

There have been around 60-100 proposals sent to the government in the last decade or so. In 2004, a list of 22 proposals was sent to the then Prime Minister. In 2016, then Chief Election Commissioner sent about 62 recommendations. These have been piling up but the government of the day cherry picks the recommendations it thinks is convenient, as they have done with the Aadhaar linking.

To name some of the important ones, firstly to democratize political parties by enacting a legislation. We often say “India has a vibrant democracy” but if the political parties, the pillars of democracy, do not function in a democratic way, how would they build a vibrant democracy? Every party has a high command, a core group or a supremo who takes decisions. ADR had requested Justice Venkatachaliah to draft a law in this regard which was done 10 years ago. We took it to all political parties but nobody was interested.

Secondly, financial aspects of the political parties should be transparent. How much money they get, where do they get it from, via what process and how is the money spent – these information should be available to voters. Without financial transparency we will never know who is controlling the elections. Donations to political parties are not charity, it is a quid-pro-quo arrangement, rather it is an investment.

Supposedly, the parties are already bound by RTI Act but none of them comply. In 2013, the Central Information Commission said that the six national political parties are public authorities under the RTI Act but they have refused to accept it and the matter is in the Supreme Court in which Union of India has argued against it.

Thirdly, the issue of criminals in politics. In 2004, when we did the National Election Watch for the first time, we found that 25% of the Lok Sabha members had pending criminal cases. That figure went up to 30% in 2009, 35% in 2014 and 43% in 2019. Some of these cases are of serious nature like murder and rape. In any other country this is absolutely unthinkable. Foreign counterparts often ask us, “Is this true? How can a person with a criminal case sit in Parliament?”

ADR wrote letters to Presidents of all political parties requesting them to not give party tickets to those with pending criminal cases. To no avail. Then, when they got elected, we again wrote to the Presidents requesting them to not make them ministers, again to no avail. We do not even receive an acknowledgement of the letters we write.

The presence of criminals in politics is tied to the use of money in politics which comes from criminal activities. It has been suggested by the Election Commission and ADR many times that a person who has a case registered against them at anytime before one year of the election, which is punishable with one year or more of imprisonment, and in which charges have been framed by a Court of law should not be allowed to contest election. It has not been implemented and this matter too is pending in the Supreme Court.

The Election Commission also wanted to use ‘Totalisers’. But the Government turned it down saying it needed to learn booth level voting patterns for better governance. Was it a valid ground?

Totalisers are very useful but again governments across party lines have been dragging their feet on it because if it is used, the parties will not be able to identify the booths where they receive fewer votes. They identify the booths and harass and intimidate people if they do not get their votes. Totalisers were in use before the EVMs came when the ballot papers of several booths used to be mixed up.

VVPAT units were connected to the EVMs in 2019 following Supreme Court’s directions. How useful have they been? And why cannot they be counted to match the EVM tally since we have already invested in buying and storing the machines and in any case use paper?

The interface between the Voter, EVM and VVPAT is not clear. When you press the button on the EVM, it sends a message to the VVPAT which shows a slip that shows whom you have voted for. But whether the information that goes from VVPAT to the counter unit is authenticated or not has not been clearly established.

The VVPAT manufacturing companies are also hiring a lot of private engineers/ personnel on contract which is not a comforting fact. In 2019 elections there were instances of the data being changed without any explanation; in some cases, the number of votes polled and counted were different which raised doubts. The process of counting has to be transparent. There should be complete tallying but it is not happening.

The appointment of the EC and CEC also requires reform. At present they are appointed by the government of the day without consulting anybody. They may even appoint somebody who has not been an EC as the Chief Election Commissioner. Even though traditionally the senior most EC is appointed the CEC, tradition is not law. The appointments should be mandated by law and only then will the ECs gain confidence to function independently. The ECs must have better constitutional protection and secure tenures, the same as the CEC. These should change and there should be a collegium for appointments and tenures etc.

Your name recently came up in the Pegasus snooping, your response? Were you surprised? Worried?

My response was why are they wasting money by snooping on me; my phone is open and available. All ADR information is in public domain and there is nothing confidential.

The interview was originally published in National Herald.

How would you like to play a game in which one of the players can change the rules at will? If you point out it is not a fair game, the answer comes, ‘but the playing field is level!’ This is not altogether an imaginary situation about Indian elections, indeed as made clear by a press release dated December 30, 2021, which said that the State Bank of India (SBI) had been authorised to issue and encash electoral bonds from January 1 to 10, 2022. Elections are round the corner in five states and preparations for the next General Election are already underway.

Electoral bonds were first announced by the then Finance Minister (FM) in his budget speech on February 1, 2017, as an innovation to bring “transparency in electoral funding”. The same afternoon, the FM, in a media interaction, said, “These bonds will be bearer in character to keep the donor anonymous.” The scheme was notified on January 2, 2018. Since then, ‘anonymous’ funding and a ‘transparent’ election process has continued to co-exist peacefully in this land of democracy.

The chronicle of the crime was foretold in full public view, almost like that famous Gabriel Garcia Marquez novel. The only difference, it was not magic reality, a la Marquez, but Indian electoral reality.

The government decided to issue electoral bonds as part of a ‘Money Bill’. This was unconstitutional as electoral bonds are not covered by the definition of a ‘Money Bill’ given in the Constitution.

The Reserve Bank of India (RBI), the sole authority to issue currency (bill of exchange, promissory note or engagement for the payment of money payable to bearer on demand) under Section 31 of the RBI Act, advised against the electoral bond scheme for “encouraging money laundering”.

The RBI was approached four days before the announcement of electoral bonds, “requesting early comments”, not agreement. And, the RBI’s views were overruled by the Finance Ministry saying, “RBI has not understood the proposed mechanism of… for the purpose of keeping the identity of the donor secret…”, and that “We may go ahead… because… the Finance Bill was already printed.” Convincing argument?

The Election Commission of India (ECI), when asked for its reaction to the proposed scheme, responded that “it will have a serious impact on transparency aspect of political finance/funding of political parties… This is a retrograde step as far as transparency of donations is concerned.” It further clarified that this would “lead to increased use of black money for political funding through shell companies” as “this opens up the possibility of shell companies being set up solely for the purpose of making donations to political parties with no other business of consequence having disbursable profits.”

And yet, after a series of meetings, a Secretary in the Finance Ministry recorded on file that “it is my understanding that the (Election) Commission was reasonably satisfied about the electoral bonds being a fair and more transparent system of political donations” although there is nothing on record to show that the claim was true. On the contrary, the ECI filed an affidavit in the Supreme Court in March 2019 saying that electoral bonds, in their current form, should be scrapped.

What is instead on record, however, is a question asked by a member of the Rajya Sabha, Mohammad Nadimul Haque, in the Winter Session of Parliament: “Had the Election Commission of India raised concerns about electoral bonds?” The Minister of State for Finance, P Radhakrishnan, flatly replied that the government had not received “any concerns from the Election Commission on the issue of electoral bearer bonds”.

As notified, the funding window was to be opened only four times a year, ten-day window each time but “an additional period of 30 days (could be allowed) in the year of General Elections to the House of People.” Despite this clear stipulation of “General Election to the House of People”, the Prime Minister’s Office ordered that the scheme be opened for state assembly elections, breaking a rule that it had made itself, soon to be followed by another rule broken by the Finance Ministry when it ordered the SBI to encash bonds worth Rs 10 crore, which had already expired crossing the 15-day validity period.

The anonymity of the donor of electoral bond was protected in so far as the SBI is the only bank authorised to sell electoral bonds and that it will collect “Know Your Customer” (KYC) particulars of the buyers of electoral bonds, but not share this information with anyone unless demanded by a court order.

The announcement of the schedule for elections for five state assemblies was a much anticipated event. What attracted attention of some observers was the inclusion of requirements for disclosure of criminal antecedents by candidate and political parties who sponsor them. A tweet by someone with over 8,500 followers is representative:

“Candidates with criminal antecedents will have to publish their crime records in newspapers etc. 3 times before the poll: CEC

Also, political parties will have to give a list of candidates with criminal antecedents in home page of their websites. Also, reasons of their selection.”

This appears at pages 21 to 24 of the 92-page press note issued by the Election Commission of India (ECI) and is numbered as items 21 and 22. As the press note correctly mentions, this is in compliance of three judgements/orders of the Supreme Court on February 16, 2018, September 25, 2018 and August 10, 2021. These cases were filed in 2011, 2015 and 2018.

The origins

This long and continuing saga started with the filing of a PIL by the Association for Democratic Reforms (ADR) in the Delhi high court in 1999, requesting that candidates contesting elections to parliament and state assemblies who have criminal cases pending against them be required to disclose these while filing their nomination papers. The high court, in a judgement given on November 2, 2000, accepted the request and ordered that all candidates contesting MP and MLA elections will be required to file a sworn affidavit as a necessary part of their nomination papers, declaring criminal cases pending against them.

The high court’s decision seemed unacceptable to the government of the day, so the Union of India filed a Special Leave Petition (SLP) against the high court’s judgment in the Supreme Court. Several political parties became interveners to the case in support the government, claiming that it was a legislative matter and the judiciary has no jurisdiction to interfere in the matter. The Supreme Court in its judgment delivered on May 2, 2002 upheld the high court judgment, saying:

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.”

Even this was not acceptable to the political establishment. An all-party meeting was held in which it was decided that the high court and Supreme Court judgments will not be allowed to be implemented and the Representation of the People Act (RP Act) will be amended, in that very session of parliament, for this purpose. A draft Bill for this was prepared but could not be introduced in the parliament because of disruptions and then an adjournment due to what came to be known as the petrol pump scam. The cabinet then decided to promulgate an ordinance to achieve the same purpose. The ordinance was sent to the president for signature, but the president returned the ordinance without signing it. The cabinet then sent it to the president again, exactly in the same form, and following the established convention, the president had to sign it. The RP Act, thus, stood amended and the Supreme Court judgment was rendered ineffective.

Three PILs were filed in the Supreme Court challenging the constitutional validity of the amendment of the RP Act. The Supreme Court, in a landmark judgment delivered on March 13, 2003, declared that the amendment of the RP Act “does not pass the test of constitutionality” and “has resulted in the violation of guarantee under Article 19(1)(a)”. Article 19(1)(a) is the Fundamental Right “to freedom of speech and expression”.

This is how criminal antecedents of candidates contesting elections to parliament and state assemblies came to be known to voters.

How it evolved further

The next stage in this saga began in 2011, when a civil society organisation called Public Interest Foundation filed another PIL in the Supreme Court seeking decriminalisation of politics and requesting the Supreme Court to “(a) lay down appropriate guidelines/ framework to ensure that those charged with serious criminal offences are unable to enter the political arena by contesting elections; and (b) lay down a time frame of six months during which trial of such persons are concluded in a time bound manner;” among some other requests.

The Supreme Court issued an order on March 10, 2014, directing that cases against MPs and MLAs be tried “as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s)”.

In the meanwhile, a PIL filed in 2005 came to be decided on August 27, 2014. The case was Manoj Narula vs Union Of India. It was filed “assailing the appointment of some of the original respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes”. Originally, the PIL was heard by a three-judge bench headed by the then chief justice, and on March 24, 2006, it was decided that “Having regard to the magnitude of the problem and its vital importance, it is but proper that the petition is heard by a Bench of five Judges.”

Thus, it is the five-judge bench that gave the judgment in August 2014. The majority judgment of three judges left it “to the wisdom of the Prime Minister”, while saying that the prime minister “can always be legitimately expected (to) consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers”, and also adding that it “is the constitutional expectation from the Prime Minister”.

There were two other separate but concurring judgments in which one of the judges considered it “…the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution,” and the advice given was that “the Prime Minister and the Chief Minister of the State, …will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951”.

Now, to the current situation

Then came an important judgment on September 25, 2018, again in a Public Interest Foundation case. There are two important features of this judgment. One, despite overwhelming evidence, the court shied away from saying that candidates who had criminal cases pending against them for some specified heinous offences be barred from contesting elections, subject to some safeguards, and two, this was the judgment that put the system on the path of candidates and political parties advertising pending criminal cases. Both these issues have been commented on in detail in The Wire on September 25, 2018, and on October 12, 2018.

To reiterate, it was pointed out, especially in the piece on October 12, 2018, that (a) the directions requiring candidates and parties putting out advertisements in newspaper disclosing pending criminal case were not likely to be of much help, and (b) the only way to reduce, if not eliminate, criminals getting into legislatures was to bar such people from contesting elections, which the Court declined to do citing jurisdictional issues. In the process it ignored its own ruling of 2002 wherein it said:

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to sub-serve public interest.”

While stopping short of doing what actually requires to be done, the judgment seems to have a lot faith in its own wishes and desires. Following are just two samples of its expectations:

“117. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that ―”we shall be governed no better than we deserve”, and thus, complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy” (Emphases added).

“118. We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay” (Emphases added).

After expressing all its hopes and aspirations, the judgement ends on a pious note:

“We are sure, the law-making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus, we part.”

Reality unfolds

The denouement of all the pious hopes started on November 27, 2018, when a contempt petition was filed by one Rambabu Singh Thakur against the then chief election commissioner and several others raising “grave issues regarding the criminalisation of politics in India” and bringing to the attention of the court “a disregard of the directions of a Constitution Bench of this Court in” the judgment on September 25, 2018.

The judgment in this case was announced on February 13, 2020, wherein the court noted that “the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place” and issued detailed directions on the way (a) political parties, giving tickets to candidates with criminal cases pending against them, should give reasons for giving tickets to such persons; (b) how parties should publish these explanations in the mass media, including social media; and most importantly, (c) ) “the reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.”

Where are we now?

It fell to a public-spirited advocate practising in Delhi but originally hailing from Nalanda district of Bihar to take this activity forward. Brajesh Singh filed a contempt petition on November 6, 2020, also against the then chief election commissioner and several others, bringing “to the notice of this Court the flouting of its directions given vide Order dated 13.02.2020”. The contempt petition was based on state assembly elections held in October/November 2020. The judgement of this petition came on August 10, 2021. It is quite amazing to see that the court took another significant step forward but refrained from dealing with the issue properly, for which there is only one way, as we shall see a little later.

First the step forward. The court held eight political parties guilty of contempt of court and fined six of those parties Rs 1 lakh each, and the remaining two Rs 5 lakh each. The cause of the contempt was that the parties had given (a) tickets to persons who had criminal cases pending against them, and (b) flimsy and non-convincing reasons for giving tickets to such persons. Parties fined Rs 1 lakh each were Janata Dal United, Rashtriya Janta Dal, Lok Janshakti Party, Indian National Congress, Bharatiya Janata Party, and the Communist Party of India. Parties fined Rs 5 lakh each were the Communist Party of India (Marxist) and the Nationalist Congress Party.

While fining political parties must be commended, it is worth reflecting on whether the amounts of money levied as fine would (a) have any adverse financial impact on the parties, and (b) the amounts will work as deterrents enough to encourage parties not to indulge in such blatant defiance of the orders of the highest court in the land.

Practicability

While we do commend the court for the act of levying fines on political parties, the practicability of the implementation of the directions of the court, and more importantly, monitoring the implementation, must be given very serious thought. The judgment itself refers to it, almost in passing, when it says that “Arguments have been advanced before us with regard to the practicability of implementation of the direction contained in paragraph 4.4” (Para 30).

Some of the factors that make satisfactory monitoring, even on the part of the Election Commission, extremely difficult, if not impossible, are also described in the piece published in The Wire on October 12, 2018 which has been referred to earlier.

Avoiding the obvious

The following excerpts from the judgment deserve careful reading:

“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government” (Para 17).

“The Constitution Bench therefore observes that though criminalisation in politics is a bitter manifest truth, which is a termite in the citadel of democracy, the Court cannot make law.” (Para 50).

“In paragraph 107, the Constitution Bench recommends that Parliament bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set-up such persons in elections.” (Para 51).

“No one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the law-makers” (Para 71).

“This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber” (Para 72).

The reader would recall that very similar sentiments were expressed by the court in its judgment of September 25, 2018, mentioned above, including some pious hopes.

The above statements need to be read with or contrasted with the following:

“… The Constitution Bench after elaborately considering the said issue, held that issuing such a direction would amount to entering into the legislative arena and as such, such a direction could not be issued. In our view, in the teeth of the observations made by the Constitution Bench in paragraph 96, though some suggestions made by Shri Viswanathan are laudable, it will not be possible for us to accede to them” (Para 53).

“The only question is, whether this Court can do so by issuing directions which do not have foundation in the statutory provisions” (Para 71).

“However, in view of the constitutional scheme of separation of powers, though we desire that something urgently requires to be done in the matter, our hands are tied and we cannot transgress into the area reserved for the legislative arm of the State. We can only appeal to the conscience of the law-makers and hope that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics” (Para 72).

At the risk of crossing a Lakshman Rekha, it must be said that it is beyond comprehension that a court which can be so sagacious and perceptive as to write that “The political parties refuse to wake up from deep slumber”, is not able to discern that it, itself, seems to be in deep slumber by repeatedly ignoring a settled principle in law “filling in the gap or vacuum in legislation” which has been very well elaborated in a judgment of this very court, of May 2, 2002.

The last word

Finally, to come back to the announcement of the Election Commission of India that we started with. All that the announcement does is to follow exactly what several judgments of the Supreme Court have ordered. It must, however, be noted that all the judgments referred to (a) do not seem to be on a firm footing as far as implementation is concerned; (b) will be very difficult, if not impossible, to implement; and (c) in the light of (a) and (b), do not, and cannot, achieve the objective of at least reducing, if not completely eliminating the adverse impact of criminality on the political and electoral systems in the country.