Open Forum

New Delhi, 14 May 2013

Electoral Reforms

EC MUST CLEAN POLITICS

By Syed Ali Mujtaba

There is a widespread concern about the prevalence of corruption in the country. Sleaze is happening because many corrupt persons and criminals are contesting the Assembly and Parliament elections and becoming people’s representative which they are not rightly.  

It is because many of them get elected due to their money and muscle power.  Thus, there is a national need to de-criminalize politics, which can happen only by preventing corrupt persons and criminals from entering Parliament and Assemblies.

Take the case of the recently concluded Karnataka Assembly elections where there are over 200 'crorepatis' (multi-millionaires) among the newly elected legislatures. Add to this, there are another 74 MLAs against whom criminal cases are registered. Out of these, 39 face serious criminal charges like attempt to murder, kidnapping, dacoity and assault against women.

Undeniably, an alarming trend wherein many hope the Election Commission (EC) will exercise its powers under Article 324 of the Constitution to prevent criminals and corrupt people from entering the political arena.

Under Article 324 the phrase “superintendence, direction and control ..…conduct of all elections” and its essentials are not comprehensively laid down. The terms are of wide amplitude and empower the Election Commission to take recourse to address the issue of de-criminalizing Indian politics.

Importantly, it can do so, because in the absence of Casus Omission (case of Omission in Law), it can interpret and provide the necessary details to fill the lacuna or non-liquet (law is not clear), wherein the jurisprudence can be evolved and empower the Commission.

Obviously, the Constitution makers have left Article 324 this way, to pave way for the EC to use its powers to conduct elections in fair and free manner, based on the exigency of the situation and ground realities.

Significantly, the Election Commission and its operation form a part of lex specialis (special law) and it is important to understand that in times of exigency its functioning is not in contravention of Constitutional laws. In fact, it is well equipped and constitutes an appropriate organ.

Consequently, the EC has the inherent power to bar those persons from contesting election, against whom corruption and criminal charges have been admitted in a court of law.

The notion of inherent powers (ex debitio justitiae) is basically a principle of natural law (jus naturalae) which remains unchangeable. It is also a virtue of human value. Therefore, it need not be seen as a residual power but a thesis of Values on Justice, (in the present context Electoral Justice).

Thereby, with this mandate the Commission can ensure de-criminalization of politics as it falls under the category of exigent situation. Secondly, by way of a directive the EC can frame relevant proposals into the subject it has developed. 

Moreover, the election body should clearly declare that polls in which those accused of crime and corruption are contesting as also those against whom corruption and criminal charges have been admitted in the court, the polls cannot be free and fair and therefore these people should be barred from standing for election.

The moot point is: When will the Election Commission assert itself and take a firm stand to end criminalization and corruption in politics. As things stand today, the Election Commission appears to give an impression that it would be satisfied if the elections are conducted in a peaceful manner, irrespective of the fact, whether they are conducted in a free and fair manner.

Most scandalously, there are innumerable cases of money and muscle power being used during elections and in most such cases, the EC has remained silent. This weak approach of the Election Commission has really emboldened criminals and the corrupt to enter the electoral fray.

Undoubtedly, reasons abound that the Commission act firmly, considering the fact that fair elections are a part of Human Rights. The concept of “free and fair, genuine election/right to vote through the means established in the Constitution (free will of the electors)” is also basically a Human Right as per the International Human Rights Law. 

Further, the concept of criminalization of politics itself constitutes a crime. The existence of criminals in politics per se will affect the objectives and achievement of the Constitution, wherein the people are the victims. Hence, the subject of criminalization of politics as a matter of crime has to be examined, apart from the offences relating to election and its extended form mentioned in relevant statutes.

Now the fundamental question: How will the judiciary react, in the event of the EC using its powers and bars persons against whom criminal and corruption charges have been admitted in court from contesting?

The answer is simple. In our country, just as democracy is evolving so also is the judiciary.  Remember, the Constitution is an Organic/Living document; therefore, it should be liberally interpreted, whereby it addresses the needs of future society.

Pertinently, it is a recognized fact that the Constitution which was enacted several decades ago needs to be amended to keep in tune with the changing times and aspirations of the people. In such circumstances, no judgement can be considered conclusive. For that reason irrespective of judgments the Supreme Court has given earlier vis-à-vis the Election Commission’s powers, these need not be considered sacrosanct, as the judiciary has revised several of its verdicts in the past.

As a result, in such situations, any move of the EC to bar persons from contesting, need not be considered as disobedience of the Supreme Court’s directives. Particularly, when such directives have been given by the Apex Court in another context earlier, in different conditions.

In the ultimate, as a Constitutional body, the Election Commission is entitled to take a decision based on its conscience and wisdom, especially since it is the conscience keeper of the nation.

Notably, in the past, the Commission has recommended a number of electoral reforms to the Government. Alas, almost all of them have been ignored.

Needless to say, the EC should not be satisfied simply by sending recommendations and thinking that it has done its duty. This is more so because in the present conditions, where public concern and anger about corruption in national life is widespread, it should move beyond obligation and fulfil its larger duty and responsibility.

The fact that there is a silent majority which wants people accused of corruption and criminal charges barred from contesting elections should spur the Election Commission to act. Time for it to realize its duties and responsibilities towards the Constitution and the people of India! ----- INFA.

(Copyright, India News and Feature Alliance)