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'NATIONAL CAMPAIGN FOR ELECTORAL REFORMS'
Dear Friends, 26 Aug 2002
Please find enclosed the soft copy of the Ordinance promulgated by the President on 24 August. We will communicate an analysis of the Ordinance and the suggested course of action later. But a cursory glance of the Ordinance reveals the following:
Disclosure of criminal record is broadly in conformity with what was earlier provided in the draft Bill. The Ordinance provides (under new Section 33 A of RPA, 1951) for:
all pending charges framed by a magistrate in respect of offences punishable with imprisonment for 2 years or more.
all convictions, provided the sentence of one year or more imprisonment is awarded.
There is some avoidable ambiguity regarding disclosures of convictions for offences listed under Section 8(1) and 8(2) of the RP Act, 1951. Earlier, the draft Bill enclosed an affidavit to be incorporated under Rules in Part IIIA, and that part provided for disclosure of all convictions in respect of all offences listed in Section 8 of RP Act. We do not know if that rule is still being notified, or such disclosures, provided for by the EC since 1997, are necessary to enforce the disqualification provisions under the existing law in Section 8 of the RPA, 1951. If this omission is clarified/rectified, then the disclosure of criminal record is reasonable.
The real problem, as we know all along, is in respect of financial disclosures. The Ordinance provides for disclosure of assets and liabilities by elected legislators to the presiding officers, and not by candidates, to the returning officer and the public at the time of nomination.
There is no provision for disclosure of educational qualifications, as directed by the Supreme Court. Personally, I am of the view that this is not significant, and we need not make disclosure of educational background a contentious issue.
The most objectionable provision in the Ordinance is the Section 3, by which Section 33B is inserted in RPA, 1951. This is an exact replica of old Section 4 in the draft Bill and proposed Section 33 in RPA. Section 3 of the Ordinance reads as follows:
“3. After section 33A of the principal Act as so inserted, the following section shall be inserted and shall be deemed to have been inserted with effect from the 2nd day of May, 2002, namely:-
“33B. Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder.”
I believe, as stated earlier, and as we represented to the President, that this provision clearly abridges our fundamental rights under Art 19 (as declared by Supreme Court in May 2 judgment), and is violative of Art 13 of the Constitution. This has to be the major ground for challenging the constitutionality of the law.
Our legal team needs to examine the Ordinance, and this provision critically, and decide on their course of action. We will have a preliminary meeting with the legal team on 28th and 29th August in Delhi to work out the modalities of moving the Supreme Court.
Despite this Ordinance, we have accomplished quite a lot over the past four months:
· We do have reasonably satisfactory criminal disclosures in place, subject to the caveat I mentioned above.
· The unsatisfactory portions of the Ordinance can now be challenged before the Court.
· Media is strongly supportive of disclosures and political reforms.
· Even political parties admit that it can no longer be “ business as usual”.
Therefore there is no reason to feel unduly pessimistic or be discouraged. Our experience shows that collective, determined, sensible, and fruitful pursuit of reforms does pay dividends. This is only the beginning. We should now fight on two fronts – questioning the constitutionality of the legislation, and mobilizing public opinion and sustaining public interest in the reform agenda.
A detailed communication will reach you outlining further developments and suggested course of action on various fronts at various levels.
With warm regards
Jayaprakash Narayan
National Cordinator
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