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NATIONAL CAMPAIGN FOR ELECTORAL REFORMS
August 16th, 2002
Esteemed Rashtrapati ji,
The recent attempts to bring in an unconstitutional
amendment to the Representation of the People Act, 1951 are a cause of great
concern to all defenders of liberty and constitutionalism. The Supreme Court, in
its judgment dated May 2, 2002 in Civil Appeal No. 7178 of 2001 and writ
petition (c) No. 294 of 2001 held that the voters' right to know the antecedents
of candidates seeking elective office is a fundamental right guaranteed under
Article 19 (1) (a) of the Constitution. In an attempt to substantially nullify
the Supreme Court judgment, the Union government has drafted The Representation
of the People (Amendment) Bill, 2002. This draft Bill seeks to introduce a new
Section 33A in the Representation of the People Act, 1951. Section 4 of this
draft Bill states as follows.
Insertion of
new section 33A: After section 33 of the principal Act, the following section
shall be inserted and shall be deemed to have been inserted with effect from the
2nd day of May, 2002, namely:
Candidate to furnish information
only under the Act and the rules "33.A. 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."
It is evident that this provision is specifically aimed at denying the citizens
the fundamental right to know the antecedents of candidates seeking public
office. The Supreme Court in a series of judgements over the years held that the
right to information is derived from the concept of freedom of speech guaranteed
under Article 19 of the Constitution. The following are some of the important
judgments of the Supreme Court which declared the citizens' right to be informed
as a fundamental right, and extended it to the voters' right to know about
candidates.
Ramesh Thappar v. State of Madras (1950 SCR 594)
State of Uttar Pradesh v. Raj Narain and Others [(1975), 4SCC 428]
Ministry of information and Broadcasting and Others v. Cricket Association of
Bengal and Others [(1995) 2 SCC 161]
Dinesh Trivedi and Others v. Union of India and others [(1997) 4 SCC 306)
In the May 2, 2002 judgment, the Supreme Court
explicitly declared as follows:
"In a democracy, the electoral process has a strategic
role. The little man of this country would have (the) basic elementary right to
know (the) full particulars of a candidate who is to represent him in Parliament
where laws to bind his liberty and property may be enacted. The right to get
information in democracy is recognized (by) all throughout (the world) and it is
(a) natural right flowing from the concept of democracy .... 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."
From the foregoing, it is clear that
the citizens' right to know the antecedents of the candidates seeking elective
office is a fundamental right guaranteed under Article 19 of the Constitution.
Article 13 (2) of the Constitution explicitly states as follows:
"(2) the State shall not make any law
which takes away or abridges the rights conferred by this part and any law made
in contravention of this clause shall, to the extent of the contravention, be
void.
Under these circumstances, the
proposed section 4, or any other similar section on redrafting, of the draft
Bill to amend the Representation of the People Act, 1951 is a clear and
unambiguous violation of the fundamental rights of citizens, and is inimical to
the natural rights of voters flowing from the very concepts of democracy and
people's sovereignty.
The government's repeated public statements, the
reported consensus which emerged in the all-party meetings held on July 8 and
August 2, and the press reports about a revised draft Bill having been approved
by the Union Council of Ministers suggested that the Bill would be introduced in
the recently concluded session of Parliament. If such a Bill had been approved
by Parliament, it would have been clearly violative of Article 13 of the
Constitution. Now that both Houses of Parliament have been adjourned sine die,
and are likely to be prorogued, we understand that an Ordinance may be sent to
the President for approval under Article 123 of the Constitution.
Any such
Bill or Ordinance is clearly violative of the fundamental rights guaranteed to
citizens, and negates the very concept of democracy and people's sovereignty.
Such efforts to stifle the voter's right to know further undermine the
democratic foundations of our nation. While the need of the hour is to
strengthen democracy through comprehensive electoral reform, the efforts to
further undermine the legitimacy of the political process and accountability to
people are unwise and dangerous.
Therefore, we, the
non-partisan concerned citizens, civil society groups and peoples' movements
seek your intervention as the President of the Republic and custodian of the
Constitution. When the Parliament itself is not competent to enact a law
violative of fundamental rights, any attempt to promulgate such an Ordinance is
clearly unconstitutional.
In
our considered view, this is a fit case for the President to exercise his
extraordinary jurisdiction to refer the matter to the Supreme Court and obtain
its opinion under Article 143 of the Constitution. A Presidential assent of such
a law violating fundamental rights – either after its passing by the Houses of
Parliament, or in the form of an Ordinance, would be clearly unconstitutional.
We therefore appeal to you not to
assent to any such Bill, and not to promulgate any such Ordinance. If such a
Bill, or Ordinance is presented to you, we appeal to you to obtain the opinion
of the Supreme Court under Article 143 of the Constitution. Article 143 (1)
states as follows:
"If at any time it appears to the
President that a question of law or fact has arisen, or is likely to arise,
which is of such a nature and of such public importance that it is expedient to
obtain the opinion of the Supreme Court upon it, he may refer the question to
that Court for consultation, and the Court may, after such hearing as it thinks
fit, report to the President its opinion thereon"
This instant case is obviously of
great public importance and the Parliament has no power to make laws violative
of fundamental rights guaranteed under the Constitution. This is therefore a fit
case for obtaining the opinion of the Supreme Court before such a Bill or
Ordinance becomes law.
Finally,
the power to promulgate Ordinances during recess of Parliament under Article 123
of the Constitution is an emergency power of legislation vested in the
President. Such a power cannot be exercised lightly, particularly when there is
no urgency or public importance, and when an ordinance is proposed to nullify
the judgment of the Supreme Court, and curtail the fundamental rights of
citizens.
We,
on behalf of the National Campaign for Electoral Reforms, therefore appeal to
you as the head of our Republic and custodian of the Constitution to protect the
citizens' fundamental right to know the antecedents of the candidates, and
intervene decisively exercising your constitutional powers, in keeping with your
oath of office to preserve, protect and defend the Constitution.
With warm regards,
National Campaign for Electoral Reforms
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