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There are two further developments:

 

From: "LokSatta" <fonderef@hd1.vsnl.net.in>
To: "Tirumala Srinivas" <corruptioneradication@yahoo.com>
Subject: Developments - 10 Aug 2002
Date: Fri, 9 Aug 2002 23:23:14 +0530

Dear Friends,

There are two further developments:

1) As you might have seen, there are news reports that the Congress party wrote to government supporting the disclosures as ordered by Supreme Court. The party said that they are only opposed to the discretion of the Returning Officers to determine the accuracy of the affidavit, and the power to reject nomination on grounds of suppression of information or false disclosure. The news item which appeared in the Hindu (9th August) is enclosed.

This is clearly a positive development. The Congress leaders Dr. Manmohan Singh, Sri Jaipal Reddy, and Sri Kapil Sibal clearly indicated to us that their party was in support of disclosures, and was only opposed to RO’s discretion. The news reports about consensus in the all-party meeting on 2nd August to bring in legislation to dilute disclosures were perplexing to us, given the declared stand of Congress party. It appears there was some gap between Congress party’s public stand, and its presentation of views in the all-party meeting. The letter of Congress party to Union Law Minister now is a positive development, which helps the cause of disclosures.

2) Rashtrapathi Bhavan communicated to us that the President will be able to receive a delegation from us on the 16th of August at 12.30 PM. The legal briefs should be ready by Monday (12th August). We can review them and finalize our draft memorandum to the President.

3) The impasse in Parliament on account of the controversy surrounding oil company dealers may make it difficult for government to get the legislation approved. If Parliament session is going to end on 14th August, then there may be a possibility of an ordinance being sent to President for approval. That will be possible only when the Parliaments is not in session. But now that Congress party explicitly communicated its stand to the government, we will have to wait and see if the government goes ahead with the legislation/ordinance.

Given this situation, the following course of action is appropriate:

1) Letters of support may go to Congress party leadership (Mrs Sonia Gandhi 10janpath@vsnl.net , Dr Manmohan Singh, Sri Pranab Mukherjee, Sri H R Bharadwaj, Sri Jaipal Reddy and Sri Kapil Sibal) congratulating them for their stand. We may ask them to specifically seek amendment of Rule 4 of conduct of Election Rules, 1961, in order to remove RO’s discretion, and to oppose legislation/ordinance diluting disclosures and violating citizens’ fundamental right to know.

2) We will again send the note to political parties on ways to address their concerns (note enclosed). We will write to all parties seeking their support for disclosures, even as their genuine concerns are addressed in a fair and democratic way.

3) Our colleagues in Delhi may issue a press note on behalf of National Campaign, congratulating Congress party for its stand, and appealing for disclosures without discretion to Returning Officers to verify the accuracy of information furnished.

4) We need to finalize the composition of the delegation to the President, so that a list can be furnished to Rashtrapathi Bhavan on Monday. The following may please confirm their availability or otherwise to meet the President at 12-30 hrs on 16th August (to be available by 12 Noon):

A Representative of ADR (Name to be specified)
Admiral Tahiliani (Transparency International)
Justice Rajendra Sachar (PUCL)
Sri Kuldip Nayar MP
Sri B G Deshmukh (AGNI)
Gen. Vinod Saighal (Movement for Good Governance)
Dr N Bhaskara Rao (CMS)
Ms Aruna Roy (MKSS)
A Representative of Catalyst Trust, Chennai (Name to be specified)
Sri Jagadananda (CYSD, Orissa)
Prof. Manubhai Shah (CERC)
Sri P M Tripathi (AVARD)
Prof. Samuel Paul (PAC)
Sri Ramesh Ramanathan ( Jannagraha)
Dr. PV Shenoi (Bangalore)
Sri S D Sharma (Lok Seva Sangh)
Sri K C Sivaramakrishnan (former civil servant)
Ms Maja Daruwala (CHRI)
Dr PM Bhargava (former Director, CCMB)
Dr Jayaprakash Narayan (Lok Satta)

Rashtrapathi Bhavan wants the names latest by Monday. I would greatly appreciate confirmations immediately.


With warm regards,


Jayaprakash Narayan
National Coordinator


A Note on Candidate Disclosures and The Representation of the

People (Amendment) Bill - 2002


1. The issue of disclosures is linked with the citizens' right to know about candidates – enshrined as a fundamental right under Article 19 of the Constitution.

2. The objective of disclosure is to give information to voters in order to ensure transparency, encourage public scrutiny of candidates' antecedents and record, and in general promote healthy and informed choice of candidates by parties and voters.

3. Disclosures, therefore are necessary. But Returning Officer's discretion to verify the accuracy of disclosures and to reject the nomination for false disclosures is impractical. The apprehensions of political parties that this discretion may be misused are perfectly understandable. Para 14(4) of the Election Commission's order which provides for such rejection of nomination upon verification by Returning Officer needs to be deleted.

The Election Commission's orders were given under the inherent powers of supervision, direction and control of elections vested in the Commission under Article 324. Rejection of nominations for non-disclosure is well within the jurisdiction of the Commission, as the affidavit containing disclosures is a necessary part of the nomination. But verification of disclosures and rejection of nomination on the basis of the conclusion that there is substantial defect in the nomination can be done only if the Representation of the People Act, 1951 or the Conduct of Election Rules, 1961 provide for that.

Section 36 of the RP Act, 1951 specifically provides for scrutiny of nominations. Section 36 (4) says, " The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character". The political parties are deeply concerned about the possible ill effects of arbitrary action if returning officer has the authority to scrutinize the disclosures. The purpose of disclosures is merely to enforce transparency. Non-disclosure therefore should be a ground for rejection. But verification by the officials in the short time available for scrutiny is impractical.This discretion of the returning officers can be removed by a simple amendment to Rule 4 of Conduct of Election Rules. A proviso can be added as follows:

"Provided that the accuracy of information furnished by a candidate on affidavit regarding criminal record, assets, liabilities or other personal details shall not be scrutinized by the returning officer, and a nomination shall not be rejected on grounds of furnishing of any wrong information or suppression of any material information".

" Provided further that, if filing of any affidavit furnishing information is ordered by the law, or Rules or Election Commission's order, non-compliance with such an order shall be a ground for rejection of nomination."

Such a simple amendment of Rule 4 will foreclose the possibility of arbitrary rejection of nominations.

4. The proposed Bill needs to be examined critically before it is enacted as a law. Four

changes in the draft are necessary in public interest.

a) Section 4 of the Bill seeks to insert section 33A in the RP Act, 1951, as follows:

"Not withstanding 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 there under".

This provision would violate the fundamental right to information guaranteed under Article 19 of the Constitution. Right of electors to be informed about the candidates is also recognised as a natural right flowing from the very concept of democracy. Therefore such a sweeping embargo is both unsustainable and undesirable. Section 4 of the draft Bill needs to be deleted.

b) The law does not provide for any disclosures of assets and liabilities and other financial details of candidates. While educational qualifications are not relevant for disclosure to voters, criminal record and financial details are necessary for voters to determine the candidate's suitability. Such public scrutiny and disclosures will encourage political parties to avoid undesirable candidates. Therefore provision should be made for such disclosures. If any information is suppressed, or false disclosure is made on affidavit, provision must be made for subsequent disqualification if the person has been elected, and imprisonment in line with Section 6 (New Section 125A of RPAct) of the draft Bill.

c) The Bill does provide for disclosure of specified heinous offences, and disqualification of persons against whom charges have been framed by a magistrate in two separate criminal proceedings at least six months prior to the date of nomination.

Consequently disclosure provision was made for such charges pending. Section 5 of the Bill seeks to insert section 33B in RP Act, 1951, and provides for furnishing of information about pending cases in relation to offences punishable with imprisonment for two years or more.

Similarly, the annexure accompanying the Bill provides for disclosure of convictions for offences listed under section 8(1), (2) and (3) of the RP Act, 1951.

But there is no provision to disclose pending charges pertaining to offences listed under section 8(1) and (2) of the RP Act, 1951. A provision has to be made for such disclosure.

d) Regarding the discretion of returning officer to verify and reject the nomination on grounds of false disclosure or suppression of information, the Bill itself can make a provision as suggested in pare 3 above.

 

Poll reforms: Cong. opposition `limited'
 



NEW DELHI AUG 8. The Congress Party today made it clear that it was in favour of "full compliance'' with the observations of the Supreme Court that all candidates should declare their assets and liabilities on a sworn affidavit as well as give details of involvement in any criminal cases.

The party's opposition was "limited'' to powers vested by the Election Commission to returning officers to reject nomination papers on grounds of incomplete or false information. This was because the returning officer can neither have the time nor any mechanism at his disposal for ascertaining the veracity of the information supplied.

In a letter to the Law Minister, Jana Krishnamurthi, the senior Congress leaders, Pranab Mukherji and H.R. Bharadwaj, made the party's position clear. They said that despite this position having been made clear by the party at the all-party meeting on the issue on August 2 (which was attended by both of them), an impression had been sought to be created suggesting that the Congress was opposed to the disclosure of information about candidates related to his or her criminal antecedents or assets and liabilities.

The party released a copy of their letter to Mr. Krishnamurthi and asserted unambiguously that the Congress would like to see legislation on this issue "in compliance with the observations of the Supreme Court''. The party had only disagreed with the Election Commission's notification on the subject which went beyond the Supreme Court's observations to give powers of rejection of nomination papers to returning officers.

The party had also opposed the first draft of the proposed legislation presented by the Government.


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