| |
It is a great privilege to be called upon to deliver the Fourth Rajaji Memorial Lectures. I am overwhelmed by the honour because Rajaji was not an ordinary citizen of this country. He has been described by a British Governor as the wisest man in India and by Gandhiji, as a keeper of his conscience. From a humble beginning in Salem, through his service to the country during the independence struggle, he rose to the highest office that a country could offer, the post of Governor General of India. He gave up a lucrative legal practice, participated in the Non-Cooperation Movement, stood by the side of Gandhijee, fought for independence, and was thereafter, on India attaining independence, the first Chief Minister of Madras Presidency. That is why I say that to deliver a lecture in memory of the first recipient of India’s highest civilian award, the Bharat Ratna, is indeed a privilege.
I am doubly happy to be here because my father was closely associated with the Triplicane Academy, and had delivered speeches at the request of the Academy.
Over sixty years have elapsed since we obtained independence and with the passage of time, one was entitled to hope that Indian democracy would mature into a vibrant and strong one, which would set an example to the rest of the world. There are many pillars of democracy, including an independent judiciary, a free Press, and equally important, the holding of free and fair elections. I have no doubt that we have been able to achieve the first two of the characteristics of democracy to a great extent. But I am overcome by a feeling of frustration and cynicism when I examine the third aspect of democracy.
We are on the threshold of the parliamentary elections to the Fifteenth Lok Sabha and, we find political parties vying with each other, at the cost of breaching the Model Code of Conduct, to win votes. It is the misfortune of the political parties that today we have a thriving electronic media, which can catch every single deviation and violation on camera and then give wide publicity to the transgressions. We have seen the distribution of bribes by leaders of political parties themselves, from the South of India to the North, attempts made to divide the country on the basis of religion and finally resorting to every stratagem possible to attain the rulership of the country.
In this no-holds-barred contest, I feel that the most reprehensible mechanism adopted is to acquire the support of as many gangsters, history-sheeters, mafia henchmen and goondas as possible. The only qualification required to nominate such persons as candidates of political parties, is that they should have established their ability to terrorize and intimidate voters to ensure their victory through the use of muscle power in their respective areas, including resorting to murder, extortion, dacoity, assaults on public servant and other serious crimes.
In the fourteenth Lok Sabha, as many as 93 of the Members of Parliament have criminal charges pending against them. Not so surprising is the fact that the trials in regard to these charges have not attained finality even after the passage of a number of years. The reason is not far to look for.
The very fact that the candidate contesting the elections, could terrorize the entire constituency would be a sufficient warning to the witnesses who had originally given statements against him from appearing in court. Such cases are adjourned periodically six months at a time, as the witnesses do not turn up. We therefore find, for example a candidate from U.P. having as many as a hundred and thirty six cases of murder and dacoity, each one relating to a different incident. None of these pending cases have attained finality, even though a number of years have elapsed. We have to find a solution to this as the tendency to form a government by getting as many seats as possible, through whatever means, would certainly perpetuate the recruiting of criminals by political parties for ensuring their success in the elections.
Section 8 of the Representation of the People’s Act requires a conviction of over two years for disqualifying a candidate from contesting the election or, alternatively, if he is found guilty of offences under special laws, in which case, he would stand disqualified irrespective of the sentence. The theory which is relied upon to protect the candidate from disqualification, when serious charges are pending, is the principle of criminal jurisprudence that a person is presumed innocent unless he is found guilty of the offence. However, according to me, this presumption is only for the purpose of preventing a punishment by way of incarceration or fine being inflicted on the accused. This principle surely cannot be applicable as far as disqualification of a candidate, from contesting is concerned. He has no fundamental right to stand as a candidate for election to Parliament or to a Legislative Assembly. A statute can take away the right of such a person to contest, on the basis of the higher principle of maintaining the purity of elections.
Under the criminal law in India, there are at least three stages at which an accused can be relieved of the charges against him. A Magistrate trying an offence has first to take cognizance of the chargesheet and then satisfy himself that prima facie, an offence has been made out, after applying his mind to the statements and the documents annexed to the Police Report. The case could be closed at this stage. Thereafter, the accused has an opportunity at the time of framing charges, to show that no prima facie case has been made out or that there exist no reasonable grounds to suspect him of commission of the offence in question. He would then be discharged by the Magistrate. Lastly, the accused could seek quashing of the charges under Section 482 of the Criminal Procedure Code.
It would therefore, be incorrect to apply the presumption of innocence, in a wooden fashion, to the disqualification of a candidate contesting elections, without taking note of the great damage which otherwise would be caused to the democratic process. I believe that Section 8 of the Representation of the People Act will have to be amended, so that a person against whom charges have been framed by a court for an offence mentioned in Section 8(1) of the Representation of the People Act, 1951, or the person is charged with an offence which carries a sentence of imprisonment of more than two years, would stand disqualified.
However, it is only a case where the chargesheet has been filed a year prior to the notification of elections, that the disqualification should apply. Otherwise a rival could easily file a false case and have a charge sheet framed, leaving no time for the accused to get a discharge or have the charge sheet set aside by the High Court. In a case where the charge sheet has been filed a year earlier, the accused would have a period of at least a year before the date of elections, to get the charge sheet quashed by resorting to appropriate proceedings in Court.
In the absence of such amendment to Section 8 of the Representation of the People’s Act, the Supreme Court of India in 2002 delivered a judgment in the Association of Democratic Reforms Case, in which, it required every candidate to disclose, at the time of filing of his nomination, the various charges pending against him for offences involving punishment for more than two years or otherwise. In fact, the Supreme Court extracted elaborately from the Vohra Committee Report:
"Some political leaders become the leaders of these gangs, armed Senas and over the years get themselves elected to local bodies, State Assemblies and the national Parliament. Resultantly such elements have acquired considerable political clout seriously jeopardizing the smooth functioning of the administration and the safety of life and property of the common man causing a sense of despair and alienation among the people".
At a seminar, a few days after the said judgment, I was surprised to find that the leaders of the political party who participated, were uniformly condemning the judgment, firstly on the ground that since many of them had undergone imprisonment during the freedom struggle or during the Emergency, they could be subject to disqualification. My answer to this is that any amendment to Section 8 would exclude offences which are political in nature. The second grievance was that the Supreme Court of India was usurping the legislative powers of the Parliament. This argument would also not hold water because the Supreme Court has been laying down guidelines for preventing sexual harassment of women at the workplace, or the running of homes for the mentally disabled and so on, and the government has accepted these judgments without demur.
The startling statistics which have come to light, as already pointed out, show that as many as 93 of the 545 members of the Lok Sabha are facing criminal charges. Of these only about 18 are facing innocuous charges, but the rest are quite serious including murder, attempt to murder, extortion, rape, and dacoity. In what appears to be a quest for power by the political parties, all principles are cast to the winds. It will be a great day for the country, if instead of an amendment to the Representation of the People’s Act, each one of the political parties would voluntarily demand and obtain from their prospective candidate a statement of the pending criminal cases against them and then allots the ticket only to such among them, who possess an absolutely clean record. Perhaps, Section 29-A should be amended to incorporate into the Constitution and Objectives of each one of the political parties, that no candidate with criminal charges pending against them would be allotted tickets by that political party.
The Representation of the People Act has however applied a totally different yardstick to the case of a criminal, who happens to be convicted while holding the office of a Member of Parliament or a Member of a Legislative Assembly. In such a case, a conviction even for one of the serious offences mentioned in Section 8, or for a period exceeding two years would not operate as a disqualification. In another case concerning a candidate in an election, the Supreme Court has held that not only would such candidate have to prefer an appeal or revision, but he would also have to get a stay on the sentence and also of the conviction itself, so as to prevent disqualification from setting in. This would mean that the candidate would have to establish before the Appellate Court that the findings rendered against him by the trial court are wholly unjustified or perverse. In the case of a sitting legislator, however, by reason of S. 8(4), the mere filing of an appeal would operate as a stay of the disqualification, even if bail was refused and the sitting member obtained neither stay of conviction, nor a stay of sentence. Obviously, this would seem to be totally discriminatory and violative of the equality clause in Article 14 of the Constitution.
Unfortunately, the Supreme Court appears to feel differently about the allegation of discrimination brought about between a sitting legislator and any other candidate. In its judgment in Prabhakaran v. Jayarajan, the Constitution Bench of the Supreme Court gives two reasons as to why the sitting legislator had to be given a special dispensation. Firstly, it pointed out that if a Government is surviving on a razor thin majority and lost one of its members, who was found guilty of a criminal offence, the Government may fall. Secondly, if such an exemption was not given and a bye-election was held, the whole of this would be a wasteful exercise, if later he were to be acquitted in appeal.
I regret to say that these grounds do not appear to be sound. One should remember that where an election petition filed against a returned candidate is allowed, the Supreme Court in appeal has a discretion not to grant a stay of the declaration of the invalidity of the election. The two consequences pointed out by the Court in Prabhakaran’s case, would equally apply to the situation. I see no justification in placing a person who is functioning as a Member of Parliament, or of a Legislative Assembly, who is convicted for an offence covered by Section 8 of the Act on a different footing from a legislator whose election has been set aside pursuant to an election petition. Equally, there will be Members of Parliament or of the Legislative Assembly, who are disqualified under Schedule X of the Constitution relating to defections. In these cases, the member approaches the Court, which may finally decide in his favour or not. Consequently, in each one of these three categories, it is the court which is given a discretion, based on the nature of the offence and the findings of the trial court or the election court or the Speaker (in the case of defection), to decide whether the member should be allowed to continue to function during the pendency of further proceedings before the Court. I believe that the special dispensation given to a sitting legislator under S. 8(4) is wholly discriminatory. In the case of a sitting legislator covered by Section 8(4), granting a special immunity is anomalous. This provision must be repealed.
Just as muscle power through recruiting criminals facing serious charges of murder, chips away at the roots of democracy, money power can also stultify the growth of a vibrant democracy. The Courts in our country have pointed out the grave consequences of permitting wealth and affluence to dominate the electoral process. In 1975, Justice Bhagawati had said that the “democratic process can function efficiently and effectively for the benefit of the common good and reach out the benefits of self-government to the common man only if it brings about a participatory democracy in which every man, howsoever lowly or humble he may be, should be able to participate on a footing of equality with others.”
Vast contributions by corporations and companies continued to flow into the coffers of political parties until the year 1969, when a total ban was imposed through Section 293-A of the Companies Act. The Statement of Objects and Reasons of the Amendment mentioned, “a view has been expressed that such contributions have a tendency to corrupt political life and to adversely affect the healthy growth of democracy in the country….. It is, therefore, proposed to ban such contributions”. In 1985, however, there was a sea change in the thinking, when through a further amendment to Section 293-A the ban was lifted “with a view to permitting the corporate sector to play a legitimate role within the defined norms in the functioning of our democracy”. The ban however continued in respect of government companies. Companies in the private sector could donate up to 5% of their average profit for the previous three years to a political party. The payments were supposed to be voluntary, but one knows the reality is that a certain amount of pressurization or promises by way of quid pro quo would have a part to play in obtaining such donations. As a matter of fact, the prudent ones among the corporates, hedge their bets by making donations to more than one political party. It is surprising that the governments are prepared to pay lip service to democratic norms by banning such donations and thereafter to declare that the ban is being lifted “with a view to permit the corporate sector to play a legitimate role within the defined norms in the functioning of democracy”. Undoubtedly, the corporation or company takes full advantage of the quid pro quo, once the political party patronized by it comes to power. It cannot be gainsaid that the political parties have to reach out to a vast electorate, but the present system engenders corruption, because the trade-off, which is implied while receiving vast donations, will be satisfied by skillfully subverting the administrative system.
Of course, the ideal situation is the State funding of elections. In many countries, the State funds elections to some extent. In no case is money, as such, paid to the candidate or the political party. Otherwise this would obviously mean, especially in India, that thousands of candidates would want to contest elections for obvious reasons. In foreign countries which permit State funding, the funding is in kind. In England free television time is made available by the BBC and by independent television companies. Postal communication is permitted free to the candidates and so too the use of council halls and state school rooms to hold the meetings. The cost of printing and compiling the register and the returning officer’s expense are all paid by the State. It is the French electoral system which seems to be the most generous in this respect. In France, money is not given directly by the State, but pamphlets, leaflets, posters, hand bills and other publicity materials including election manifestos and statements are printed by the State machinery at the specific request of the candidate. Vehicles, including oil and petrol, are provided by the State. Help is extended to the candidate to organize public meetings and public address systems are also paid for by the State. Radio time and TV time is made available to the candidate free of cost.
In India, the problems which face the country are vast. Election funding on a major scale cannot be undertaken at the cost of poverty alleviation, primary education, primary health care, population control, clean drinking water, creation of employment and so on. Any deprivation in these areas would negate the very socialist democratic foundation of the nation. It is therefore, to partly achieve the objective of State funding that Sections 39-A, 78-A and 78-B were added to the Representation of the People Act. Section 39-A provides for the equitable sharing of time on cable television networks and other electronic media by recognized political parties. Rules have been made for this purpose and fixed times have been allotted to national parties and State parties for telecast and broadcast on Doordarshan and All India Radio. Section 78-A provides for free supply of electoral rolls to recognized political parties and Section 78-B provides for the supply of certain items, at the State’s expense, to candidates set up by the recognized political parties. No provision has so far been made for implementing Section 78-B of the Act.
In this background, the question is whether it possible to avoid the vice pointed out by Parliament itself, in the Statement of Objects and Reasons, when the 1969 amendment banning contributions by political parties was passed. As already pointed out, the Statement of Objects and Reasons said that “such contributions have a tendency to create corrupt political life and to adversely affect the health of democracy in the country”. Time cannot in any manner neutralize the effect of these words. However, the ban was lifted in 1985 on the facile ground that the corporate sector has played a legitimate role by making such contributions.
As I see it, the real solution is to snap the link between the donor and the political partiers, so that political parties do not offer promises and favours of contracts and licence in return for the monies paid by the corporate sector. The contributions by the corporate sector should be made into an election fund maintained by the Central government from which the monies will be distributed on the basis of existing guidelines to recognized political parties. I have, no doubt, that companies would resist any such amendment as their legitimate expectation is to receive a return in kind from the political party, which is successful at the hustings. The alternative is for the levy of a surcharge, of say 1%, on the income tax paid by corporations, across the board, so that they fulfil their legitimate role in the functioning of our democracy. (More surcharges for everything that the STATE is supposed to do?)
It should be remembered that for as long a period as 16 years, between 1969 and 1985, there was a total ban on such contributions being made to political parties.
I now end with the last aspect on which I desire to speak i.e. the right of a voter not only to vote for any candidate, but also, to cast a negative vote or an expression of no confidence against every one of the contesting candidates. To achieve this end, in addition to the names of the candidates, the electronic voting machines should carry a button or key against the legend "none of the above". Rule 49-O of the Conduct of Election Rules, has been introduced setting out the procedure for entering one’s name in the register kept for the purpose and to then record the voters decision not to cast his vote. In my view, the more appropriate course would be to allow the voter to press the key or button in the electronic voting machine, which would record his negative vote being “none of the above”. In such a case, he would retain his anonymity along with all the other voters and at the same time express his dissatisfaction with each and every one of the candidates contesting for the seat. Unfortunately, the Act and the Rules do not provide for the consequences flowing from the negative voting. According to me, where the total number of negative votes exceeds the number of votes obtained by the successful candidate, it should result in totally nullifying the election to the constituency itself, because it would show that the electorate has expressed its lack of confidence in every one of the candidates. A fresh election will then have to be held to the constituency where the political parties would field only candidates who are competent to serve the people and who have no tainted record by way of criminal activity or otherwise. If this is done, it would have a salutary effect on the political parties, who would no more rely upon history sheeters, gangsters and thugs, to wrest the seats through pressurizing the voters in the constituency, so that gradually the system itself would be cleansed.
In conclusion, I have to state that even though my entire presentation makes a strong plea for redemocratizing the electoral system, one has to take note of the fact that the institution of the Election Commission of India established under Part XV of the Constitution, has been responsible for bringing about orderliness and discipline in the conduct of elections. The Model Code of Conduct, has evolved over a period of time, into a very stringent deterrent to malpractices and deviations by the political class. The regulation and control of the poll throughout a vast country, with different climatic conditions and terrain, in remote jungles and mountains, with over 500 million voters casting votes, is an exercise that cannot be replicated by any other country however advanced the technology. The fact that all these votes can be counted in a single day, and the results announced, is itself amazing. The independence and integrity of the Election Commission itself and of its machinery, bodes well for Indian democracy.
However, it is an unhappy part of history that morality in public life has been gradually declining and one of the pillars of democracy is itself likely to be slowly eroded. Let us hope that the new Lok Sabha will not beat the record of the present one, where about 93 Members of Parliament are facing criminal charges. If the political parties still believe that they have to gain power at the Centre, irrespective of the cost, it would indeed be a sad day for the country. Let us hope that the statement that the “death of democracy is not likely to be from ambush but will be a slow extinction from apathy, indifference and undernourishment”, does not come true.
(K.K. Venugopal, Senior Advocate at the Supreme Court of India, is a distinguished constitutional expert. The Fourth Rajaji Memorial Lecture was delivered in Chennai on April 4..)
|
|
