Open Forum

New Delhi, 19 October 2018

Poll Contestants

MANDATORY DECLARATIONS

By Dr S.Saraswathi

(Former Director, ICSSR, New Delhi)

To lay down the qualifications required to be a people’s representative in law making bodies is the need of the hour, according to an observation of a judge in the Madras High Court in dealing with a writ petition.

This significant recommendation of the High Court has failed to draw public attention it deserves not because of lack of public importance of the subject matter as one may conclude, but   on account of the gravity of its implications. It was made to stress the need for authentic information on health condition of the candidates contesting public elections.

The writ petition sought direction to State Election Commission to insist upon submission of health details along with medical certificates of candidates contesting local body elections in Tamil Nadu. The petition by implication can be extended to candidates contesting Lok Sabha and State Assembly elections. The Court  had  suo motu  included  the Union Government,  Election Commission,  Law Commission,  State Government, and  State Law Commission as respondents and sought their responses.

Declaration of health condition of the candidates was considered as important as declaration of their assets and criminal antecedents. The idea was prompted by the death of former Chief Minister of Tamil Nadu Jayalalitha, within seven months of assuming office due to several health complications. The judge  was of the  opinion that the need for a Commission to  probe  into the circumstances leading to her death and the treatment given would not have arisen had there been a declaration of  her  health condition in the nomination paper. Various kinds of rumours are floated about her ailments and treatment.

The judge’s contention is that many times, voters vote for the leadership of particular  personalities and are, therefore, entitled to know whether that person will be fit enough to lead them for five years. Political offices carry tremendous work load and responsibilities and persons appointed or elected to those offices require extraordinary energy to bear the stress and strain.    Responding to the judge, the Council for the Election Commission explained that it was a sensitive matter involving the right to privacy of the individuals.  The Election Commission of India was of the view that powers conferred on the Commission under Article 324 for superintendence, direction, and control of elections could not be invoked to introduce medical fitness for elective posts.

The issue of physical health status of candidates contesting elections has been raised for the first time. No country has prescribed health criteria for candidates or rejected the nomination or disqualified anyone on health grounds.

Declaration regarding health is no doubt a private matter, but when it relates to a public figure in power and authority, it becomes a public matter subject to public regulations.  Hence, in public interest, it can be argued, that voters have a right to know the health condition of the candidates. 

Medical fitness has not figured so far in discussions on filling up law making bodies with persons who are fit to be members by their attainments and abilities.  It falls in the domain of political parties to nominate persons physically fit to discharge the functions assigned.

Many countries bar the right to vote and to stand for election to people with mental, psychic disorders. In Britain, MPs detained under   the Mental Health Act of 1983 for six months had to vacate their seats on the report of two specialists. This was removed by the Mental Health (Discrimination) Act of 2013. 

The judge in the present case reopened the bigger question of qualification and disqualification of law makers. He also pointed to lack of proficiency to speak in English language of some members to be able to raise people’s issues in parliament and asked the Election Commission to lay down broad guidelines on the qualifications required to be a people’s representative.

It is dangerous to touch the language question in our multi-linguistic nation with a number of highly developed languages. But, to insist on certain amount of knowledge, and ability to comprehend and  express opinions on  political, economic, and social affairs so as to make useful contributions to law making  without being dumb “yes” or “no” members  cannot  be considered undemocratic  or  objectionable.   

Prescribing some educational qualification has come up at times in some States. Rajasthan and Haryana have prescribed pass in Class X (VIII in the case of women and SC) as the minimum educational qualification to contest election to panchayat bodies. Such a provision exists in some other developing countries like Bhutan, Libya, Kenya, and Nigeria.  Having a toilet at home is also insisted in Haryana in the wake of the Swachh Bharat movement.  

Democracy opens political positions to everybody, but that does not preclude fixing eligibility criteria for membership in the interest of safeguarding that democracy. Qualifications are prescribed, disqualifications are listed and compulsory declarations to be made for nomination are mentioned everywhere.  

One of the most common disqualification for contesting a general election all over democratic countries is criminal record. Factors such as severity of the crime committed, the time that has elapsed since the commission of the crime, and the nature of punishment are often considered as crucial factors.  In some countries, corruption is taken as a disqualification.

In the US and Sweden, only age is prescribed and not grounds of ineligibility. Finland also does not prescribe disqualifications, but allows parliament to decide. Offences no longer make a person ineligible to stand for election after a law was passed in 1995. The onus is on the voters to reject persons unfit to hold public offices.

Several countries -- Australia, Canada, Denmark, France, Germany, Ireland, New Zealand, Spain, and UK - disqualify candidates for criminal record.  Canada, France, and the UK have specifically included corruption under conditions of ineligibility. The period of ineligibility is prescribed by law or decided case by case.  In Canada, conviction in corrupt cases disqualify a candidate for seven years;  in Spain and Ireland for the period of punishment.

Brazil takes the question of qualification and disqualification rather seriously. States and municipalities are permitted to enact their own “clean record” laws to govern appointment to public offices and “trust positions” meaning political offices.  All those convicted of racism, homicide, rape, drug trafficking, and misuse of public funds by a second level court are disqualified for public offices for a period of eight years. Vote buying, abuse of power and influencing elections are election offences under a law passed in 2010.

In Australia, persons convicted of treason or offences punishable with imprisonment for more than 12 months, bankrupts, and those holding any office of profit are disqualified by the Constitution to contest elections.

The long list of disqualifications for holding a legislative position, Indian law covers offences resulting in imprisonment for two or more years, election offences and corrupt practices, conviction for supporting social crimes like untouchability, sati, and dowry, promoting enmity between groups, etc.  

Declarations are different from disqualifications. To include health under the list for declarations along with assets and liabilities may not be feasible or desirable.  Surely, it will add one more source for false declaration.---INFA

(Copyright, India News & Feature Alliance)