Interventions By Common Cause

                                                                                                                                                                                                                                                                                              *Swapna Jha

This article attempts to examine if the main obstacle to electoral reforms is an unholy alliance between the ruling party and the opposition, perpetrated by a time tested tactic of delay. The reluctance of successive governments to implement electoral reforms or their propensity to stonewall legislative reforms is indeed worrying. The Opposition too cannot escape their share of blame. Obviously, the only option the electorate is left with is to approach the judiciary.

Over the years, the gap has widened between the elected members' individual caliber and the rising demands of modern legislation. As articulated in other write ups in this issue, there has been an alarming increase in the number of criminals being elected to Parliament and State Assemblies. Their importance was proved in 2008 when the ruling government was able to ward off a noconfidence motion with the help of six jailed MPs who were temporarily released only to cast their vote in order to tilt the balance. The thought that such MPs will frame the best laws to protect our liberty and property is appalling, to say the least.

Interventions by Common Cause for a Cleaner Polity

Common Cause took up this crusade as early as in 1994. It approached the Supreme Court in an effort to bring transparency to the election expenses of the candidates. The primary contention raised in the petition was that the political parties were violating several mandatory provisions with impunity. They were required to maintain audited accounts and comply with the other conditions envisaged under Section 13A of the Income-tax Act in order to be eligible for tax exemption. Most of the parties had done neither and were spending phenomenal amount of money during election, without indicating the source. Thus elections fought with unexplained and questionable sources of money was corroding the fundamental tenets of our democracy. The citizens thus had a right to know the source of expenditure incurred by the political parties and by the candidates in the process of election.

In a landmark judgment, the SC held that the political parties were under a statutory obligation to file regular returns of income and that failure to do so rendered them liable for penal action.

This judgment not only marked a significant progress in the campaign for a cleaner polity, but also paved the way for mandatory declaration of assets by the candidates. In a later development, the right of a common man to have information on the background and the antecedents of the candidate, too, was upheld by the SC.

The Parliament then proceeded to initiate the process of legislation to counter the apex court's order. The Centre issued an ordinance in August 2002 and the President was forced to give his assent. In the following winter session, the Parliament replaced the ordinance with necessary legislation. This legislation too was challenged and the SC held that it nullified the previous order of the Court, infringed upon the fundamental right of electors' to know, and hindered free and fair elections.

In the year 2011, Common Cause along with other civil society members filed a PIL in the apex court for de-criminalizing politics. This PIL sought expeditious disposal of criminal cases against members of Parliament and Legislative Assemblies. It also challenged the vires of Sec 8(4) of the Representation of the People Act (RPA), whereby their disqualification following their conviction was automatically suspended on the filing of an appeal or a revision application by them. In the course of hearing of the PIL, the Court requested the Law Commission to submit its report on specific issues pointed by it. The Law Commission submitted its recommendations in the form of 244th report titled "Electoral Disqualifications". Subsequently, on March 10, 2014, the Supreme Court passed an interim order to the effect that trials in criminal cases against lawmakers must be concluded within a year of the charges being framed. The Court also directed that trials must be conducted on a day-to-day basis, and if a lower court is unable to complete the trial within a year, it will have to submit an explanation to the Chief Justice of the High Court concerned and seek an extension of the trial.

Unfortunately, even after a lapse of more than two years, the order of the apex court is yet to be implemented.

The prayer of Common Cause to hold Section 8(4) of the RPA, as unconstitutional was granted in a separate PIL. The apex court held that the Parliament did not have the competence to provide different grounds for disqualification of applicants for membership and sitting members. Further, deferring the date from which disqualification commenced was unconstitutional in the light of Articles 101(3) and 190(3) of the Constitution, which mandates that the seat of a member will become vacant automatically on disqualification. Historically also, additional protection to legislators in comparison to contesting candidates was discussed and denied in the course of the constituent assembly debates. The proposal of Prof. Shibban Lal Saksena in this regard was not accepted by the Constituent Assembly and he had to withdraw this amendment.

Instead of accepting the salutary verdict of the apex court with grace and taking steps to implement it, the union government chose to nullify its effect by introducing a Bill in Parliament. To make matters worse, during the pendency of the Bill, the government tried to ensure that the tainted legislators, whose disqualification was imminent, were protected from the effect of the judgment by issuing an ordinance. The speed with which all this was proposed shows the eagerness of the elected members to protect one of their own.

In addition to filing petitions to ensure free and fair elections, Common Cause has intervened whenever the power of the constitutional authorities tasked with ensuring free and fair election has been challenged or sought to be diluted. One such instance is given below:

The power of Election Commission (EC) to issue notice under Section 10 A of the RPA, seeking to disqualify a candidate on account of incorrect return of election expenses, was challenged by Mr. Ashok Chavan (former CM of Maharashtra) in the Delhi High Court. The High Court upheld the EC's power to inquire into the correctness of the account of election expenses filed by a candidate following which, Mr. Chavan filed a Special Leave Petition (SLP) against this order. The government filed a counter affidavit claiming that in terms of Section 10A of the RPA and Rule 89 of the Conduct of Election Rules, the power of the Commission to disqualify a person arose only in the event of failure to lodge an account of election expenses and not for any other reasons, including the correctness or otherwise of such account.

It was ironic that having set up so many Commissions in the past to suggest cures for the ailing democracy, the same executive saw no wrong in the incorrect filing of election expenditure! Thus, it was not only seeking to undo all the good work done by the EC but also unsettling the law already settled by the SC in the past.

It was imperative that Common Cause lend its support to the EC. Hence, in concert with other likeminded civil society organisations and eminent citizens Common Cause filed an intervention application, to defeat the nefarious designs of the government aimed at undermining the capacity of the EC to curb the influence of money power and ensure the purity and integrity of elections. Dismissing Mr. Chavan's SLP, the Court held that the EC was well within its jurisdiction to inquire into the correctness of accounts and order disqualification in cases of incorrect accounts of expenditure. This judgment is a milestone in establishing the right of the EC to take steps to ensure free and fair elections.

Initiatives by EC for Electoral Reforms

Electoral reforms have been engaging the attention of the EC for a long time. The Commission has been regularly addressing the Government on different subjects requiring reforms. As early as in 1997, EC had expressed its serious concern and anxiety towards growing criminalization of politics in a representation made to the then Prime Minister of India. It had recommended that the law be simplified by amending Section 8 of the RPA. The suggestions were:

• Whoever is convicted of any offence by a court of law and sentenced to imprisonment for six months or more should be debarred from contesting elections for a period totaling the sentence imposed plus an additional six years.
• If the court is prima facie satisfied about involvement of the person accused of serious criminal charges and, consequently, charges have been framed, keeping such person out of the electoral arena would constitute a reasonable restriction for serving the larger public interest.
• As a precaution against motivated cases, it was suggested that only those cases may be considered for disqualification which were filed prior to six months of an election.
• It also suggested that persons found guilty by a Commission of Enquiry should also stand disqualified from contesting election.

These views of the EC were reiterated before the parliamentary Committee in its meeting held in 2007. However, the Committee disagreed with the views of the EC as reported in its 18th report.

Political Reforms- Are Political Parties Interested?

The health of a democracy depends on the quality of its leaders, who in turn are linked to the way political parties function. Reforms are needed to bring about systemic changes within the functioning of political parties. Efforts to bring about transparency and accountability in the functioning of political parties have been in vain so far. Even under the Right to Information (RTI) Act, political parties declined to accept the Chief Information Commissioner's order bringing them within the ambit of "Public Authorities". When the non-compliance of the order was brought to the apex court's notice, the government is stated to have filed an affidavit claiming this would adversely impact their internal working and political functioning.

As for electoral reforms, it is difficult to believe that any government in the past has been serious about getting an effective Bill passed. Behind the inertia, obviously, is the unwritten consensus between major political parties. Successive governments have been stalling reforms despite adverse public opinion, media pressure, civil society interventions or suggestions made in the report after reports of the various Commissions in the past. While the laws are flawed and political will is lacking, the fabric of democratic politics is being torn apart. And if the trend continues, the fabled Indian democracy will be anything but "for the people".

*Swapna Jha is a Senior Legal Consultant with Common Cause.?