Reform is a practical matter

On the face of it, the recent Supreme Court judgement requiring candidates in Assembly and Lok Sabha elections to make a whole lot of disclo...

On the face of it, the recent Supreme Court judgement requiring candidates in Assembly and Lok Sabha elections to make a whole lot of disclosures about themselves is a big boost to probity in public life. The accompanying direction to the Election Commission to lay down by July 1 a format of the necessary affidavit from candidates has, however, raised doubts about the viability of stipulating such sweeping disclosures. The court has enjoined upon each candidate to give a complete account of his criminal, financial and educational record at the time of filing his nomination papers. The Commission is hard pressed to find a practical way of giving effect to the court’s direction.

One of the stipulations, for instance, is that the candidate should furnish details of all the assets belonging to him, his wife and his dependents. What makes this stipulation difficult to enforce is that all their assets are required to be disclosed — ‘‘immovable, movable, bank balances, etc.’’ The court surely made an omission in giving no definition of ‘‘movable’’ assets while asking for their disclosure so categorically. Thus, if the judgment is to be taken literally, the candidate has to make an exhaustive list of practically every movable owned by him, from clothes, watches, books and kitchenware to airconditioners, cars, jewellery and shares.

The only way the Commission can make this stipulation viable is by introducing a qualification to the expression ‘‘movable assets.’’ It may have to say in the pro forma affidavit that movable assets worth above a certain level alone are required to be mentioned. The Commission’s dilemma is whether it can correct the court’s omission on its own or should it move the court for a clarification. The political system could have perhaps been spared this needless uncertainty if the court had paid heed to the Commission’s suggestion that the candidate should be asked to disclose not his assets but whether he is an income tax and wealth tax assessee and whether he has been paying his taxes and filing his returns regularly.

Story continues below this ad

But apart from such omissions about the nature of the disclosures, the Supreme Court has been silent on the crucial question as to what the Commission can do with a candidate who refuses to file the requisite affidavit or files an incomplete affidavit. In its affidavit filed last year, the Commission urged the court to declare that the nomination of such a candidate will be deemed to be incomplete and rejected on that basis under the Representation of the People Act (R.P. Act). It also proposed that if any candidate furnishes a false affidavit, the Commission should be allowed to take criminal action against him and his rivals should be empowered to challenge the election for the same reason. The Commission’s suggestions merited attention because in the absence of any sanctions, candidates can — and are likely to — disregard the apex court verdict with impunity.

In the absence of sanctions, candidates are likely to disregard the apex court verdict

Yet, the court steered clear of the issue of enforceability. To be sure, that was no oversight. The court seemed to be, if anything, acutely conscious of the fact that it was already on the verge of transgressing its limits when it directed the Election Commission to demand more disclosures from candidates. The court however justified its intervention by referring to the wide amplitude of the plenary powers conferred on the Commission by Article 324 of the Constitution to ensure free and fair elections. Despite its activist zeal, the court desisted from holding that Article 324 could also be used to provide coercive powers to the Commission for enforcing the new measure of disclosures.

Any such direction would have amounted to interfering with the prerogative of the legislature and the executive. The grounds on which a candidate can be disqualified are determined entirely by the R.P. Act passed by Parliament and the Rules framed under it by the government. As the judgment put it, ‘‘it is not possible for this court to give any direction for amending the Act or the statutory Rules.’’ The Supreme Court even conceded that ‘‘no direction can be given contrary to the Act and the Rules.’’ As a result, it is plain that no nomination can be rejected for any reason not mentioned in the Act or the Rules. So, till the necessary amendments are made to the Act or the Rules, there is no way the Supreme Court’s great initiative to provide more information to voters about candidates can be legally enforced.

The best that can be hoped in the circumstances is moral enforcement: That candidates may make disclosures out of deference to a Supreme Court judgement and for fear of being politically attacked by their opponents. It remains to be seen whether an all-party meeting called on July 8 to discuss the fallout of the Supreme Court judgement will rise above petty political considerations. It should serve as an opportunity to rationalise the disclosures that can be made by candidates as also to endorse the Commission’s proposal of being provided with statutory teeth in this regard.