From:  "Lok Satta" <loksatta@s...>
Date:  Wed May 29, 2002  5:09 pm
Subject:  update on SC Judgement
To:  "Tirumala Srinivas" <corruptioneradication@yahoo.com>

Dear Friends, 

This is in continuation to the earlier communications sent out in reference to the Supreme Court Judgment and subsequent developments. 

We have contacted Election Commission (EC), and the Law Ministry (GOI) on the issue of making the candidate’s affidavit disclosing criminal record, assets, liabilities and educational qualifications a necessary part of the nomination as per SC’s Judgement dated 2nd May, 2002 (Civil Appeal no. 7178 of 2001). The position seems to be as follows: 

1. The EC is fully willing and ready to comply with the SC’s directive in letter and spirit.
2. The EC has two options before it:
    a. To make the affidavit a necessary part of the nomination, in which case non-filing of it will lead to rejection of nomination; and         false declaration may invite an election petition challenging the election of the candidate.
    b. To merely prescribe an affidavit, which is not a necessary part of the nomination, in which case non-filing of it cannot be a  ground for rejection of nomination. False declarations may lead to subsequent prosecution, if at all, for breach of trust or cheating or such other provisions. 

3. The EC’s preference is for the former alternative, so that the spirit of SC Judgement is implemented. But there is a problem as they perceive it:
    a. Section 33(1) of the Representation of People Act, 1951 provides for filing of a nomination paper in the prescribed form.                 (prescribed by rules)
    b. Section 36 of the Act deals with the scrutiny of nominations, and circumstances under which the nomination can be rejected.         Quite understandably, section 36 (4) specifically states, “ The returning officer shall not reject any nomination paper on ground         of any defect which is not of a substantial character”.
    c. From the foregoing and other provisions of law, the EC feels that the affidavit can be a necessary part of the nomination only if        the affidavit is regarded as a part of the nomination. But the nomination form is prescribed by rule No. 4 under the law. And             the rule-making power under the law Section (169) is vested in the “ Central Government”. 

4. Based on the above logic, the EC prepared a draft rule and affidavit, and sent it to Law Ministry of GOI for incorporating it as a         necessary part of the nomination.
 

5. The Law Ministry is now examining it. They may have their own concerns – for instance : can the SC “legislate” like this? Will         this set a precedent forcing executive to act on court directives? By the very nature of things, government responds to political         parties’ views too. And we all know the views of major political parties on this matter.
 

6. Therefore, our mailing campaign needs to be directed to Law Minister, Sri Arun Jaitley (Address: Union Minister for Law, Justice     & Company Affairs, 4th Floor, A Wing, Shastri Bhavan, New Delhi  -110 001;  ajaitley@sansad.nic.in ) 

7. We pointed out to GOI that it is a party before the SC and that the court clearly states that the affidavit should be a necessary         part of the nomination. GOI understands the position and its implications. Obviously mobilizing public opinion will help persuade     GOI to act quickly and decisively. All the activists and friends who are engaged in this campaign may kindly ensure the                 following:

    a. Mailing campaign addressed to Law Minister asking for the affidavit to be made a necessary part of the nomination, as                 directed by the SC, and as proposed by the EC. A draft letter is enclosed for the consideration of activists and organizations.

    b. Also similar letters may be addressed to the Prime Minister, and leader of opposition so that the leading political parties                 understand the public mood.(draft attached) 

8. There is a fair chance of our campaign succeeding in persuading the GOI to do the right thing.

9. If, for some reason, GOI doesn’t act, hen the EC is willing and ready to prescribe the affidavit for candidates. Their present             perception seems to be that the EC, on its own, cannot make the affidavit a necessary part of the nomination.

10. But perhaps there are adequate grounds to persuade the EC that the commission has the power under Art. 324 (as the SC         clearly pointed out), and the responsibility to apply Art. 324 to make the affidavit a necessary part of the nomination. Such an         order by the EC can only be challenged before courts, and when the SC judgement is so categorical, such a challenge will not     succeed. But this point should be argued ably by legal luminaries.

11. All friends, in particular friends from ADR, may consider obtaining legal opinions from reputed advocates including Ms.Kamini         Jaiswal who did such an outstanding job of arguing the case before Supreme Court. If we present these opinions to the EC, there     is a good chance of the commission responding favourably. The senior officials of the EC are fully aware of these perspectives.     At this point of time the EC is waiting for GOI’s response.
 

12. Meanwhile the Andhra Pradesh State Election Commission (SEC) (in charge of elections to local governments under the             constitution) has written to the CEC asking for a meeting of all SECs so that collectively they can decide on applying the SC         judgment to the local elections also. While the SC Judgment is in respect of Parliamentary and State Assemblies, the logic, law     and facts apply to local elections fully. It may be a good idea if we can persuade the SECs to write to CEC. If SECs start             exercising their powers under Art.243K and 253-2A, then our case will be strengthened further. In any case, local elections are     as important in our own quest for clean politics. The constitutional provisions under Art.243K and 243-2A (referring to SEC) are     identical with those of Art. 324 (referring to EC) 

I am sorry for this some-what long-winded and legalistic note. But such are the vagaries of law in our country! And again this case demonstrates the need for rapid changes in tactics to suit the situation. I do hope that a large number of emails and letters will go to the Law Minister, Leader of Opposition and Prime Minister.

 With warm regards 

Jayaprakash Narayan

National Cordinator 

Lok Satta

401/408 Nirmal Towers

Dwarakapuri Colony, Punjagutta

Hyderabad - 500 082

Tel: 040 3350778/3350790

Fax: 040 3350783

E-mail: loksatta@satyam.net.in

url: www.loksatta.org