Denying the right to know

The CPM opposed the debarring of a candidate even in such circumstances. But in the same breath, one of their senior leaders and a competent lawyer claimed the party was in favour of the Law Commission’s report. Ironically, the 170th (1999) Law Commission Report had recommended the debarring of a candidate from contesting the election if charges have been framed against him by a court in respect of certain offences, also making it necessary to furnish details of criminal cases, if any, pending against him. The argument that the police falsely foists criminal cases against trade union activists ignores the fact that unless the court frames a chargesheet, it will not be a disqualification. Even assuming that the prospective candidate suffers in a stray case, for the larger purpose of cleaning up politics, it should not be opposed. A more dangerous step which seeks to trespass into the judicial domain is the introduction of Section 33A in the 1951 Act. It reads: ‘‘Notwithstanding anything contained in any judgment, decree or order of any court or any direction or 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 amazing that the government should seek to insert such a provision. Any law college student could enlighten the government that such a provision will be plainly unconstitutional. The Election Commission has only acted as conduit to pass on the directions issued by the Supreme Court. The directions have been issued in recognition of a voter’s fundamental right to information guaranteed under Article 19 of the Constitution.

The Supreme Court has categorically observed ‘‘the right to get information in democracy is recognised 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. The voter’s right to know the antecedents, including the criminal past, of the candidate is fundamental for the survival of democracy.

It is also difficult to understand why the government decided to issue an ordinance to nullify the direction of the Election Commission given in pursuance of the Supreme Court direction. Article 13(2) of the Constitution prohibits the Parliament from making any law which contravenes the fundamental rights. The Supreme Court, as far back as 1975, in the case of Indira Nehru Gandhi Vs. Raj Narain, held that a declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. It held that it is not permissible for the legislature to declare the judgment of the court to be void or not binding. This ordinance is a futile exercise which will lead to conflict between between the judiciary and executive.

A number of non-partisan groups and those interested in electoral reform presented a memorandum to the president on August 16, requesting him to refuse to give assent to such an ordinance. The president, the nation is grateful, has lived upto the role of elder statesman entrusted with the preservation of the Constitution.

It is unfortunate that the government has decided to resubmit the ordinance without any changes. This proves that the central government has set out on the path of confrontation between the executive and the judiciary. One had hoped better sense would have prevailed.