The Mother India
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Thanks to The Chief Election Commissioner
284/MM/02
25th June, 2002
To,
Sri JM Lyngdoh
Chief Election Commissioner
Election Commission of India
D.No.PS/EC(k)/99, Nirvachan Sadan, Ashoka Road,
New Delhi - 110 001
Esteemed Chief Election Commissioner,
We would like to record our deep appreciation to the Election Commission for its unflinching commitment to fair and free elections. The strength, independence, impartiality and credibility of the Election Commission are among the main reasons for our proud record as a democracy. The Commission also earned the gratitude of all democrats by its proactive and constructive approach before the Supreme Court in the matter relating to disclosure of details by candidates seeking public office. In fact the operative portion of the Supreme Court judgment of May 2, 2002 is based essentially on the Election Commission’s suggestions.
The Commission acted with great speed and scrupulous objectivity and fairness in finalizing the proposals for making disclosure of information on candidates' criminal records, assets and liabilities of the candidates, their spouses and dependent members of their families, and their educational qualifications. We understand that the proposals with draft amendments of rules, draft affidavit and proforma for furnishing information have been sent to government of India for immediate action.
Recent press reports suggest that the union cabinet discussed the issue on 18th June and felt that amendment of the Representation of the People Act, 1951 is required to operationalize the Supreme Court judgment. Sri Arun Jaitley, the Law Minister, is said to have convened on July 8 an all-party meeting to discuss the issue. Press also reported that on 20th June the Speaker of Lok Sabha Sri Manohar Joshi gave a public call 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."
All these press reports raise serious doubts in the minds of thinking citizens about the future course of events. First, prescribing the affidavit for disclosure of information by candidates does not require any change of law. All it needs is either a directive by the Election Commission, or an amendment to Rule 4 of the Conduct of Election Rules, 1961. Second, the tardy pace at which government is moving shows that there is no possibility of any tangible action before the deadline of 2nd July set by the Supreme Court for implementing the judgment. Third, government's earlier record of legislating reforms as suggested by the Supreme Court in respect of the independence of Central Vigilance Commission, and repeal of explanation 1 under Section 77 of the Representation of the People Act, 1951 makes us skeptical about its ability to bring about any democratic reforms to improve the purity of elections or enhance probity in public life. Fourth, even if a suitable legislation is introduced now, its outcome is far from certain given the fact that no party enjoys majority support in both houses of Parliament.
Given these circumstances, we are certain that if the matter is left to government's discretion, the Supreme Court judgment will not be implemented. We believe the Election Commission has the responsibility to fill the vacuum created by the absence of a law or rules framed by the executive on the issue. The jurisdiction of the Election Commission has been succinctly summed up by the Supreme Court in its May 2 judgment. The Court categorically states as follows:
1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, Commission can fill the vacuum till there is Legislation on the subject. In Kunhiya Lal Omar's case, the Court construed the expressions "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the Election Commission to issue such orders.
3. The word "elections" includes the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the voter according to his thinking and opinion. As stated earlier, in Common Cause case, the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election. If on affidavit a candidate is required to disclose the assets held by him at the time of election, voter can decide whether he could be re-elected even in case where he has collected tons of money.
4. To maintain the purity of elections and in particular to bring transparency in the process of elections, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of elections would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.
5. The right to get information in democracy is recognised all throughout and it is natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant of Civil and Political Rights which is as under:-
"(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to Freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
6. Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the executive to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voters' speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must. Voter's (little man-citizen's ) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers.
The Supreme Court has thus finally and fully settled the questions of the jurisdiction of the Election Commission, the scope of its powers under Art. 324 and the right of people to be fully informed about the candidates seeking public office. The Court's direction to the Election Commission was "to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament and State Legislature as a necessary part of his nomination paper … …" Clearly, when the government fails to act, the initiative now rests with the Election Commission.
The question of whether the Commission can direct candidates to compulsarily file an affidavit, and whether wilful noncompliance of such a directive would entail rejection of the nomination has also been settled. Supreme Court's direction that the affidavit should be "a necessary part of the nomination" clearly means non-filing of the affidavit should lead to rejection. The Court, while giving that directive has settled the question of the extent of the powers of superintendence, direction and control of elections which vest in the Election Commission under Article 324 of the Constitution.
The Election Commission has earlier exercised such a jurisdiction while calling for specific information from candidates not prescribed by law or rules relating to nomination, and rejecting nominations of candidates who wilfully violated the Commission's directives. 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 August 28, 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 in 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.
In this connection we would like to bring to your kind attention that rejection of nomination does not amount to disqualification. Only those nominations which are not accompanied by an affidavit prescribed by the Election Commission are liable to be rejected. It the candidate files other nominations accompanied by a proper affidavit, and if he or she is not otherwise disqualified, he or she is entitled to contest the elections. The Commission would not be disqualifying any candidate by prescribing the affidavit and making it mandatory.
Finally, we would like to bring to your notice that the paramount duty of the Election Commission is to preserve the purity of the election process and safeguard democracy in its true spirit. The Commission has over the years enhanced its credibility by its fair, fearless and impartial exercise of its constitutional authority. In the absense of a suitable law, and when the executive fails to frame appropriate rules, the Election Commission needs to act decisively to implement the judgment of the Supreme Court in letter and spirit.
We, the concerned citizens, therefore urge you to act decisively and ensure full implementation of the Supreme Court judgement of May 2, by giving suitable directions to make disclosure of details by an affidavit mandatory, and a necessary part of the nomination process. We are fully confident that the Election Commission will act speedily in keeping with its own impeccable record and highest traditions it has set over the decades.
With warm regards,
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