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NATIONAL CAMPAIGN FOR ELECTORAL REFORMS
Public Education Campaign
Historical Mile stone in Indian Politics
March 13 Supreme Court Judgment
The Battle has just Begun
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To: "Tirumala Srinivas" <firstname.lastname@example.org>
Subject: The Battle has just Begun
Date: Thu, 13 Mar 2003 21:02:00 +0530
March 13 Supreme Court Judgment - NATIONAL CAMPAIGN FOR ELECTORAL REFORMS
The long-awaited judgment of the Supreme Court has been delivered at last. And as we all hoped, the apex court upheld our contention and held the newly inserted Section 33-B of the RP Act, 1951 unconstitutional. The impact of this is as follows:
1. The Parliament cannot now abridge the right of citizens to know about the candidates.
2. The SC's earlier judgment (May 2) and the consequent EC's notification (June 28) have prospective effect, and will have to be enforced.
3. The criminal disclosures as provided in the Ordinance and Act 77 of 2002 (replacing the Ordinance) are inadequate. The court directed that all convictions, charges framed and cases of which cognizance was taken should be revealed. The law mandated disclosure of convictions involving a sentence of one year or more, and pending charges (framed by a magistrate) entailing a sentence of imprisonment of two years or more. The candidates will now have to reveal all criminal record as per SC judgment and EC's notification.
4. No provision for financial disclosure has been provided for in the law. Now candidates have to disclose statement of assets, liabilities and dues to public financial institutions in respect of themselves, spouses and members of their families.
5. Disclosure of educational qualifications was never taken up by NCER. However, that disclosure also is mandatory now.
6. Non-disclosure (non-filing of affidavits) will clearly be a ground for rejection of nomination.
7. The EC's notification provided for rejection of nomination for furnishing any wrong or incomplete information if it is considered to be a defect of substantial character (para 14(4)). We do not have judgment copies, but we understand that two of the three judges upheld it, while the third judge doubted if it could be enforced. This issue needs to be clarified. In any case, the chances of Returning Officer having the wherewithal to verify the affidavits are slim.
The news reports indicate that an all-party meeting is proposed on the judgment. As the Constitution stands, Parliament cannot now undo this verdict except through a constitutional amendment, which would be unthinkable. Only a larger constitutional bench at a future date may review the extent to which fundamental rights under Art 19(1) can be applied in such cases.
Obviously we are all delighted. Success has many fathers. We owe our debt of gratitude to the original petitioner, ADR and Ms Kamini Jaiwsal for initiating the process. Mr PP Rao, Justice Rajinder Sachar, Prashant Bhushan and Sanjay Parikh did an outstanding job and we all remain forever indebted to them for opening up this avenue for reform. The media played a magnificent role. Millions of Indians expressed themselves forcefully and mobilized public opinion. Many, many individuals and organizations stood by NCER in this battle. 'Thanks' would be a very inadequate word to describe our feelings.
But the question is, what do we do now?
We had a meeting of NCER
in Delhi on 6th March. Briefly the following need to be addressed on the issue
1). Follow up with the EC on disclosures issue to ensure practical guidelines and effective implementation, and wide dissemination of information to voters in all future elections.
2). Follow up with State Election Commissions for issuing similar notifications in respect of elections to local governments.
But disclosure is only a small but significant step in the large agenda of political and governance reforms. We need to pursue a few vital short-term goals.
1). Making voter registration accessible and simple with post office as nodal agency. Both the EC and the Postal department are in agreement in principle. We need to pursue it vigorously and ensure fair and clean electoral rolls and easily accessible and verifiable mechanism for voter registration. Current evidence suggests that a high percentage of errors (up to 15% in rural areas and 40% in urban areas) in electoral rolls are undermining our electoral verdicts.
2). Polling irregularities are rampant despite voter identity card ( and other forms of identity) being mandatory. Our helpline in Kolkatha in 2001 Assembly election showed that about 40% of the complaints were to the effect that somebody already voted in their names, though voter identity card was mandatory! Voter identity is not an adequate safeguard against collusion or coercion. We have to devise other methods and get them implemented.
a). Making automatic repolling mandatory if tendered votes exceed, say 1 or 2 percent of votes polled, and giving wide publicity to tendered vote process.
b). Using thumb print or other distinctive identification criteria to prevent false voting by impersonation.
3). Political funding reform law: For long, LOK SATTA, along with others, has advocated funding reform. Many such proposals have been incorporated in a Bill before Parliament now. It was introduced in March 2002, and circulated to all of you by email earlier. It has several positive features including repeal of explanation 1 under section 77 of RP Act, tax exemptions for political funding, compulsory auditing and disclosure, indirect public funding etc. We need to strengthen the Bill and persuade parties to enact it quickly. The Bill has bipartisan support and a Parliamentary Committee had already vetted it and gave its report.
4). Election Watch in all states whenever elections are due. We need to focus on the large states going to polls at the end of 2003. All background material including prototypes, manuals and videotapes for television campaign is available. We need to identify like-minded groups capable of launching a state-wide grassroots campaign.
5). National Judicial Commission is an idea whose time has come. The political parties and several eminent jurists have recommended such a commission. We should put together a team of experts to prepare alternative models for public debate, so that judicial independence and accountability are effectively reconciled.
6). LOK SATTA has drafted a Bill for establishment of local courts at low cost for speedy justice. It is a very powerful instrument with all winners and no losers. Very shortly I will be circulating this draft Bill. India has 10 judges per million population, as opposed to 110 in OECD countries. We have 25 million cases pending in all courts. The Bill we propose provides for honorary magistrates for every 25000 population, at very low cost, using local language, adopting summary procedures, holding court at the scene of offence or cause of action, with exclusive jurisdiction of Rs 1 lakh in civil cases and 1 year's imprisonment in criminal cases, and justice guaranteed within 90 days. There will be provision for appeal and lawyers can appear. This is an eminently achievable and practical solution to ensure speedy and efficient justice.
7). We need to launch in every major state a movement for local government empowerment. In AP, recently a Federation for Local Government Empowerment has been formed with all elected local government representatives cutting across party lines and urban-rural divide and uniting all tiers of local government. Such effort can be launched in many states and there are synergies in collective action.
These are some of the immediate activities we can take up. Obviously, we have to enlarge our agenda to include key governance reforms in addition to electoral reforms. Finally we should move towards larger systemic reforms like proportional representation and separation of powers at state and local levels.
A few concluding comments:-
This struggle should be viewed in perspective.
The following issues may have to be kept in mind by all of us.
1. This is not a people vs politicians
struggle. We need politics. The only antidote to distortions in politics is
better and more politics. Parties are doing a tough job against heavy odds to
sustain democracy. They need to be strengthened. Revulsion of politics is a
2. This is an opportunity, not a threat to parties.
They can take advantage of this situation and cleanse the system. They can break
out of the shackles of criminals and moneybags at constituency level.
3. This is not a turf battle between legislature and
judiciary for supremacy. No sane democrat disputes the supremacy of elected
legislature in law making. In this case, the Supreme Court interpreted the
Constitution and upheld fundamental rights, which are its duties. There is no
jurisdictional struggle here. It is possible that elsewhere certain judicial
decisions are seen as usurpation of executive or legislative authority. But this
is the wrong case and time to fight that battle.
4. Finally, our politicians are not villains. They
are victims of a vicious cycle. They are often at the mercy of local political
lords whose writ runs. What we need is a reform process which changes the nature
of power game, and allows honesty to survive with power. But there are other
organs of state, which require to be reformed too. The crisis is systemic.
Decentralisation, judicial reforms and instruments of accountability and
empowerment have to be addressed effectively and expeditiously. Mindless lashing
out at politics is a recipe for disaster.
The battle for reclaiming our republic has just begun. A lot more remains to be done. The Court has opened many vistas. Let us explore them to the fullest. Meanwhile let us celebrate the vitality of our democracy and the strength of our institutions, which make peaceful transformation possible.
With warm regards
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