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---------------------------------------------------------------------------------------------------------------------------------------Update on SC Judgment
From: "Lok Satta" <email@example.com>
To: "Tirumala Srinivas" <firstname.lastname@example.org>
Subject: update on SC Judgment
Date: Fri, 21 Jun 2002 20:04:33 +0530
We had a good meeting in Delhi on 10th June at 4 PM at CMS office. Among others, Messers B G Deshmukh (AGNI), Pran Chopra, Kuldip Nayar, Dr. N Bhaskara Rao (CMS), Veena Nayyar (Women's political watch), Promod Chawla, Sharad Kumar (AGNI), Anant Trivedi, R Prakash (Common Cause), General Vinod Saighal, H K Singh and Dr. Subash Kashyap participated in the meeting. The following is the brief summary of the discussion:
The idea of a private member's bill in Parliament was discussed and rejected as counterproductive.
The consensus was that public opinion must be mobilized and media should be involved in a big way in favour of electoral reforms.
A broad consensus emerged that a national committee of eminent citizens should be formed to help build a national platform for electoral reforms. We should start building the nascent infrastructure for this purpose.
The meeting fully supported May, 2002 judgment of SC.
The general view was that the government and major political parties may not be ready and willing to do anything concrete. We should therefore focus our attention on the Election Commission. All steps should be taken to persuade the EC to be proactive and enforce the affidavit along with the proforma as a necessary part of the nomination without waiting for the government response or change of rules or legislation.
The meeting felt that the limited issue now is whether EC could stipulate that non-filing of the affidavit is a ground for rejection of nomination or not.
It was decided that a delegation should call on the EC on 11th June in order to persuade the EC as per point (5) above.
A prior appointment with the full Commission was already sought and it was fixed at 11.30 AM on 11th June. A delegation including the following met the EC at Nirvachan Sadan:
Shri Kuldip Nayar, MP
Dr. N Bhaskara Rao CMS
Ms. Veena Nayyar (Women's Politicl Watch)
Shri Sharad Kumar (AGNI)
Shri Sanjay Parikh (PUCL)
Shri Promod Chawla (Parivartan)
Shri Anant Trivedi (Parivartan)
Dr Jayaprakash Narayan (Lok Satta)
The EC received us cordially. We put forth reasoned arguments in favour of the EC's proactive stance to make the affidavit the necessary part of the nomination. The grounds cited by us were chiefly the following:
The SC Judgment was specific and binding on the EC. The Court, after duly examining the EC's role under Art. 324, ruled that the Commission has the power and responsibility to force disclosure by candidates. The direction was to make the affidavit a necessary part of the nomination.
The precedent set by the EC with respect to the affidavit to be filed by candidates about their criminal record is applicable in this case. The facts are as follows:
a. On August28, 1997 the EC prescribed through a letter to all the election officials such an affidavit. This followed the EC's clarification about rejection of nominations of candidates convicted for offences listed under Sec 8 of RP Act, 1951, irrespective of whether or not the candidate was at large on bail, or an appeal was pending. (except in cases of incumbent legislators who were convicted while if office. The unfortunate exception is covered by Sec 8(4) of the act.)
b. EC prescribed this proforma not as a part of law or rules or amendments of nomination papers, but through a mere letter.
c. EC followed this with a message on 3 Feb. 1998 to election officials that wilful defiance and refusal to file affidavit shall lead to rejection of nomination.
d. In the bye-election to Bhojpur assembly constituency in Madhya Pradesh held in Feb. 2000, the nomination of one Bhagvan Singh was rejected on the ground that he had not filled up the proforma prescribed by the EC by the letter dated 28-8-97. Bhagvan Singh did submit an affidavit in support of the proforma, but the proforma was left blank. Though Bhagvan Singh had declared in the nomination form that he was qualified and not disqualified to fill the seat, the nomination was rejected for want of mere proforma information prescribed by EC not as a part of the nomination form, but by a letter.
e. On a subsequent election petition filed by one Shaligram Shrivastava, the Madhya Pradesh High Court upheld the rejection of nomination. The Court held " If the instructions are issued to maintain the purity of elections and if such instructions are not in conflict with or repugnant to any statutory provision, these must be respected and followed by the authorities subordinate to the Commission and also by the candidates....... The failure to fill up the proforma by Bhagvan Singh and give the requisite information in the face of strict instructions of the Election Commission was a defect of substantial character and his nomination was properly rejected."
Based on that precedent, the Commission's order to submit an affidavit along with information in proforma prescribed should be binding on candidates, and willful non compliance should lead to rejection of nomination.
3. Rejection of nomination is not disqualification. If the candidate, whose nomination is rejected on the ground that the affidavit has not been filed, does file the affidavit along with other nominations, he would be entitled to contest, subject to meeting qualifications prescribed for contesting elections. The Commission would not be disqualifying any candidate by prescribing the affidavit and making it mandatory.
4. The EC's paramount duty is to preserve the purity of elections and safeguard democracy. In this pursuit, even if there are some grey areas about jurisdiction, aggressive action is called for as per SC judgment.
5. If the legislature does enact a suitable law, the EC need not act. But in the absence of such a law or rule, the EC has a duty to act.
The CEC Sri J M Lyngdoh, Election Commissioners Sri T S Krishnamurthy and Sri B B Tandon were present at the meeting. Sri Sayan Chatterjee, Deputy Election Commissioner was also present at the meeting.
The Commission assured us categorically that they would discharge their constitutional duty unflinchingly.
Meanwhile news reports appeared in the press that the Union cabinet discussed the subject on 18th June. Sri Arun Jaitley, the law minister stated that an all-party meeting would be called to discuss measures to be taken in pursuance of the SC judgment. There is also some talk of a possible legislation.
Press reports also appeared on 20th June that the Speaker of Lok Sabha, Sri Manohar Joshi called for suitable legislation to implement the judgment of the Supreme Court. The Hindu reported : “ Mr. Joshi warned that if the government failed to initiate necessary action, the vacuum would be filled by the judiciary. He stated that in the larger interest of harmonious relations among the legislature, the executive and the judiciary, it had become imperative for Parliament to give the lead in respect of electoral reforms as well.”
Clearly the concern is more about the turf battles, and not about electoral reforms. The press also reported that the Union government called an all-party meeting on 8th of July. Evidently, there is no sense of urgency on the issue of electoral reforms, or on the Supreme Court judgment. There may however be efforts to stall the issue, and postpone any meaningful action.
Under the circumstances, there does not appear to be realistic possibility of any legislation before the deadline imposed by the SC - July 2nd. Only one of two possibilities remain:
1. The government will amend the rules as suggested by the EC, and make the affidavit a part of the nomination,
2. If the government fails to act, say by the last week of June, then the EC will issue an order making the affidavit mandatory for all candidates.
It appears to me that we should therefore pursue the following course of action:
We should continue to exert public pressure on the government and leading political parties through letters and emails to act quickly to implement the SC judgment.
The signatures collected can be sent to the Center for Media Studies (CENTRE FOR MEDIA STUDIES, RESEARCH HOUSE, COMMUNITY CENTRE, SAKET, NEW DELHI - 110 017; Ph. 6851660, 6864020, 6522244/55, 6856429; Fax. 011-6968282; E-mail: email@example.com) and from there, a delegation can meet government and opposition leaders and present a memorandum along with the signatures by the end of June, if no action is taken by then.
We will wait for the EC's final decision if government fails to act. There is every reason to believe that the EC will implement the SC judgment in letter and spirit. We can chalk out further course of action based on the outcome as on 2nd July, 2002.
We would appreciate your inputs, further information on action taken, suggestions and ideas.
With warm regards
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