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The Mother India

  A Home page to achieve Electoral reforms, true democracy & citizens sovereignty in India

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From: "LokSatta" <fonderef@hd1.vsnl.net.in>

To: "Tirumala Srinivas" <corruptioneradication@yahoo.com>

Subject: Talking Points

Date: Fri, 5 Jul 2002 19:07:26 +0530


Dear Friends

Sri L.C. Jain suggested that a few talking points should be circulated for informed debate on the recent ECís order and approach to electoral reforms in general. Enclosed are a set of questions with answers for your perusal. There are no definitive answers to many political questions. What has been attempted is a fair reconciliation of different points of view, and focus on democratic goals.

I welcome your comments and suggestions. If a broad consensus emerges on a common approach, we may circulate them to MPs and party leaders.

With warm regards

Jayaprakash Narayan
National Coordinator

 

 

Talking Points

 

1.      Did the Supreme Court exceed its jurisdiction in its May 2 judgment and intrude into legislative arena? 

Ans. No. The Supreme Court direction does not disqualify any candidate. Prescribing qualifications for contesting elections is the exclusive prerogative of the legislature. The Court merely decided that the people in a democracy are entitled to know about the candidates who seek to represent them and acquire power on their behalf. This right to know is integral to Article 19 (1) of the constitution. 

  1. Did the Election Commission exceed its jurisdiction?

Ans. No. As the Supreme Court pointed out, under Art 324, the Election Commission has the responsibility of superintendence, direction and control of elections. The EC cannot legislate or prescribe qualifications. But prescribing affidavits, seeking information, making disclosures mandatory are the legitimate functions of the EC.  

  1. Should the EC have waited for a legislation?

Ans. In fact disclosures do not require amendment of the Representation of People Act, 1951. All it takes is amendment of rule 4 of Conduct of Election Rules, 1961. The government has the power to make rules. EC sent proposals to the government to amend the rules. However, government delayed the matter. Supreme Court judgment came on May 2. An all Ė party meeting has been convened on July 8, well after the deadline set by the Supreme Court for implementation of its directions. The government should have amended the rules quickly and taken other initiatives for electoral reform. In the absence of governmental action, the EC was forced to act under Art 324 to comply with Courtís direction. 

  1. Are we setting a precedent for judiciary to legislate?

Ans. Parliament is, and ought to be supreme in legislation. This disclosure is not legislation. This is merely to enforce the citizensí right to know about the candidates, which is implied in the Constitution. All it takes to implement the Supreme Courtís directive is an executive order or change of rules. Election Commission is a part of the executive, but independent of government. There is no usurpation of Parliamentís power. 

  1. Can a nomination be rejected on flimsy grounds on the basis of ECís new rules?

 Ans. No. The ECís order is categorical. Only when there are proven substantial defects, is a nomination liable for rejection. For instance if there is proven criminal record, or pending charges framed by a magistrate, non-disclosure would entail rejection. Regarding financial details there is no realistic chance of any substantial defects being proved at the time of scrutiny. 

  1. In the unlikely event of frivolous rejection of nomination, what is the remedy?

 Ans. The ECís general principle is to accept a nomination, and not to reject it. Election officials usually advise the candidate informally in advance about the defects in nomination. Officials are firmly directed to overlook minor or technical defects. In the unlikely event of rejection of nomination, there is no remedy at present before the election, except ECís intervention under Art 324. Otherwise an election petition after the election is the remedy. If an objection is raised at the time of scrutiny, the candidate has time for two more days to rebut it.

       However, there have been exceptionally rare cases of frivolous rejection in the past. It may be worthwhile to formally provide for ECís instant intervention, based on District Election Officerís report upon a complaint. Such a safeguard can be provided by executive orders, and it will completely eliminate chances of arbitrary rejection.  

  1. Is the candidateís right to privacy affected by disclosures?

 Ans. There are two competing rights which should be considered Ė the candidateís right to privacy, and  the citizensí right to be informed, and the right of the community for proper representation. When there is a conflict between the candidateís rights and those of the community, the latter should prevail. At all times we should recognize that the candidate is seeking the mandate of the people, and he wishes to exercise power on behalf of the people. Right to privacy is an individual right, but public figures have an obligation to disclose those details necessary to maintain probity in public life and help citizens make an informed choice. 

  1. Will this disclosure automatically eliminate corruption and criminals from politics?

Ans. No. But this is one significant step. Evidence shows that full disclosure deters candidates with unsavory record. Parties also will tend to avoid nominating new candidates with unsatisfactory record. But established candidates are usually unaffected by disclosures. Criminalization of politics and malpractices will thus be arrested, but not reversed. A lot more needs to be done to cleanse elections. 

9.      Is electoral reform an elitist concern?

 Ans. Not at all. In reality, people are extremely restive about the nature of our elections. Owing to electoral defects, and often unsatisfactory choice offered to people, things remain the same no matter who is elected. That is why people tend to vote against the establishment and incumbents most of the time. We require honest efforts to improve the electoral process and enhance its legitimacy. Unless citizens actively pursue these goals, there is real danger of democracy being derailed. 

  1. Does this approach become anti-political?

Ans. Politics is about promotion of public good. These efforts to reform are informed by great respect for, and belief in, the political process. Reviling politics is a dangerous exercise. Liberty is preserved only by strong and competitive political process. Most of our politicians are decent and well-meaning. However many are forced to make unhappy compromises because of compulsions imposed by our electoral and governance system. Reform efforts are undertaken with deep understanding of the difficulties politicians face. These efforts will strengthen the majority of decent and honourable elements, and undermine the few black sheep. 

  1. What more needs to be done?

Ans. We need to improve electoral rolls and make voter verification and registration simple, easy, locally accessible and citizen-friendly. Local post-office can be the nodal agency for the purpose. We need to implement measures to curb polling irregularities and fraudulent voting. We need to strengthen political parties and make them accountable and democratic in their functioning. 

We need a proper funding law to help parties and politicians raise legitimate resources for political action. We also should provide tax incentives for political funding. 

Finally, we should seriously examine methods to enhance legitimacy of representation, measures to promote fairer and less-costly elections based on a partyís platform.  

Despite many flaws, our elections are a remarkable exercise, and they are a testimony to our democratic spirit. Politicians are struggling against odds to sustain and deepen democracy in our country. We need to make this task easier through reform process. Anti-political approach is detrimental to democracy. Equally, status quo is clearly unsustainable and counter-productive.

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