Revision as of 21:25, 11 April 2017

Supreme Court judgments

Apex court gave teeth to poll panel and punch to voters

Dhananjay Mahapatra

The Times of India 2013/07/15

The body constitutionally mandated to conduct free, fair polls—the Election Commission— [used to] work as an alter ego of the government. Status quo on the election front, which netas seldom contemplated changing, continued since the first elections in 1952 till 1991. Both situations – nondeclaration of assets and criminal antecedents and the EC’s role - turned on its head thanks to landmark judgments by the Supreme Court.

T N Seshan

The EC used to be pliant to commands of the government on fixing dates of election, blinking at electoral malpractices and and was also amenable to requests for postponing elections. Then, chief election commissioner T N Seshan gave details of government interference in the EC’s work in his petition to the Supreme Court in 1993. The judgment on his petition by a five-judge constitution bench in 1995 quotes Seshan’s charges against the Cngress party in detail.

S S Dhanoa vs Union of India

In the case S S Dhanoa vs Union of India [1991 (3) SCC 567], the Supreme Court said, “The Election Commission as envisaged by the Constitution is an independent institution and has to function as such. In the discharge of its duties and functions, it is not amenable to the control of any other body.”

Seshan realized the importance of the ruling and used it to convert the paper tiger in Election Commission into a roaring, biting one. Since the Dhanoa ruling, the EC has not looked back. It has discharged its duty of conducting free and fair elections.

Union of India vs Association for Democratic Reforms [2002]

But what is the use of free, fair election if voters do not have a chance to make an informed choice? That is, they were not informed about antecedents of the candidates. The court settled this issue in Union of India vs Association for Democratic Reforms [2002 (5) SCC 294] and directed every candidate to declare his educational qualification, wealth and criminal records.

The SC in the 2002 judgment said, “To maintain the purity of elections and to bring transparency in the process of election, the commission can ask the candidates about the expenditure incurred by the political parties and this transparency would include transparency of a candidate who seeks election or re-election.

“In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.”

The 2002 judgment did not go down well with politicians, who ganged up as a class against it. Emboldened by consensus at the all-party meeting, the government first issued an ordinance and later brought in a legislation which substantially weakened the apex court ruling. The new law said only those who get elected were to declare their assets and criminal antecedents and not every candidate.

Amendment quashed by SC in 2003

This amendment was quashed by the SC in March 2003. It said the amendment restricting declaration of assets and criminal antecedents only to successful candidate breached the right to information of voters, vital for them to make informed choices.

In a democracy, the Constitution becomes the source of dynamic lawmaking for the people’s representative sitting in Parliament or Assembly. For the higher judiciary, it becomes a source for dynamic scrutiny of the enacted law and its interpretation.

2013’s judgments The Representation of the People Act applying the disqualification guillotine to elected representatives the moment they get convicted for offences and awarded more than two years imprisonment were aimed at bringing more transparency to the electoral process.

But what about speeding up appeals against conviction? Should the man who loses his seat in Parliament or assembly because of conviction wait for years to prove his innocence? Should he be disentitled to the right to speedy justice? The second judgment debarring politicians from contesting elections merely on arrest is based on the simple logic that arrested persons are disentitled to vote. But the ground situation is not simple. In the absence of reforms in policing system, the police continues to be under the thumb of the ruling party, which before the commencement of the period for filing of poll nominations could order arrest of potential rivals on frivolous charges and tinker with the electoral mandate. We will need a little more clarity on these two issues arising out of the two judgments.

Electronic Voting Machines (EVMs)

See graphic.

How safe is the Electronic Voting Machine in India; The Times of India, March 17, 2017