Friday, January 27, 2023

Is the EC Getting Robust?

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In pursuit of a level-playing field, the EC will take cognisance of complaints about false affidavits being filed by candidates before polls and refer them to investigating authorities on a case-by-case basis.

By MG Devasahayam

AT a meeting on June 16, 2020, the Election Commission (EC) discussed the issue of false affidavits filed by some candidates along with their nominations. It adversely affects the rights of voters as well as impinges on the purity of the electoral process.

The EC acknowledged that the exercise of informed franchise is a foundational requirement for free and fair elections. It took note of the Supreme Court’s observations in People’s Union for Civil Liberties v. Union of India (2003): “…the foundation of a healthy democracy is to have well-informed citizen-voters.” In this case, the Court had further observed: “A little man–a citizen–a voter is the master of his vote. He must have the necessary information so that he can intelligently decide in favour of a candidate who satisfies his criterion of being elected as an MP or MLA.”

The EC felt that the voter has a fundamental right under Article 19(1)(a) of the Constitution to know about the candidates standing for an election. The genesis of the disclosure requirements, now incorporated in Form 26, appended to the Conduct of Election Rules, 1961, was brought up in Union of India v. Association of Democratic Reforms (2002). In his/her affidavit, a candidate discloses (i) criminal antecedents (ii) assets and liabilities (iii) educational qualifications. As of now, affidavits on assets and liabilities are being verified post-election by the Central Board of Direct Taxes.

For the EC, filing of false affidavits by candidates during the nomination process is a key challenge as it undermines the rights of voters to be fully informed about their political representatives. The Supreme Court in a catena of judgments (Resurgent India v. ECI-2014; Rambabu Singh Thakur v. Sunil Arora-2020) held the truthful disclosure of all relevant information by a candidate as integral to the electoral process and any denial or false disclosure would be tantamount to vitiating the integrity of elections.

In the meeting, the EC viewed the erosion of this fundamental right as an affront to the democratic ideals which underpin the system of government. So, it decided to robustly address this challenge to further ensure free, fair and ethical elections in the country.

And what is this robustness? As per the extant provision, individuals are filing complaints regarding the furnishing of false information in the affidavits in the competent court under Section 125A of the Representation of People Act, 1951. From now onwards, the EC will take cognisance of such complaints, indicating serious omission on the part of the candidate, and refer them to the relevant investigating authorities on a case-by-case basis. This, the Commission will do in pursuit of a “level-playing field”.

Consider this situation. Candidate X (criminal and corrupt) of a political party files his nomination along with affidavits, either declaring all his crimes and ill-gotten wealth or concealing all or most of them. After routine scrutiny, the returning officer allows him to contest, knowing full well that his affidavit is false and he is a criminal and corrupt. The probability of such a candidate getting elected being high in our elections, he gets elected. He could become a cabinet minister, chief minister or even the prime minister enjoying the full powers of the State. Using the police and other agencies, he can hunt down anyone who has filed complaints against him.

While so, all that the EC will do is take cognisance of these complaints and refer them to the relevant investigating authorities. These authorities will take their own time to assemble evidence and do the investigation. This will drag on and finally a weak case will be made or in all probability, a “clean chit” given to the politician as is the current practice. Even in the rare case of the politician getting convicted, there are layers of appellate courts from where he will get stay orders. While the politician continues with his state power and perks, the case will drag on, ending in acquittal. And the politician will contest the next election filing the same kind of affidavit. How bizarre is that?

Let us look at some numbers. The Association for Democratic Reforms (ADR) has been conducting detailed analysis of the background of candidates contesting elections. They collected and compiled data for almost all state and parliament elections in collaboration with the National Election Watch. Based on these, ADR analysed and reported the trend in winners with declared criminal cases recorded for three consecutive Lok Sabha elections:

  • Lok Sabha 2009: Out of 521 winners analysed, 158 (30%) had declared criminal cases against themselves; 77 (15%) had declared serious criminal cases against themselves.
  • Lok Sabha 2014: Out of the 542 winners analysed, 185 (34%) have declared criminal cases against themselves; 112 (21%) have declared serious criminal cases, including those of murder, attempt to murder, communal disharmony, kidnapping, crimes against women, etc.
  • Lok Sabha 2019: Out of the 539 winners analysed, 233 (43%) have declared criminal cases against themselves; 159 (29%) have declared serious criminal cases including cases related to rape, murder, attempt to murder, kidnapping, crimes against women, etc.

As one can see, the ratio of criminals winning Lok Sabha seats has been going up. Similar is the case with the corrupt, though this is not easily quantifiable. During the last few decades, several committee reports have pointed to the growing criminalisation of Indian politics and its implications. These committees have taken note of criminal gangs who carried out their activities under the aegis of various political parties and government functionaries. They further expressed great concern that over the past few years, several criminals had been elected to local bodies, assemblies and the Parliament. On various occasions, the courts have also recognised that the nexus between politicians, bureaucrats and criminal elements has been on the rise, the adverse effects of which are increasingly being felt in various aspects of social life in India.

In fact, the apex court was soft on “criminal politicians” when it ruled that it cannot disqualify those candidates with criminal charges from contesting elections (Public Interest Foundation v. Union of India-25 September 2018). The Court suggested that Parliament, which  has many criminal and corrupt elements, should make laws to curb the increasing criminalisation of politics. It advised political parties not to field corrupt and criminal individuals as candidates in elections. The Court also issued directives to the EC, which in turn mandated the political party as well as the candidate with criminal antecedents to publish information on websites, newspapers and television on three occasions during the campaign period.

All these have had no impact on criminals and the corrupt who are going from strength to strength and ruling the roost in politics. Autocratic tendencies and the precipitous fall in probity and governance standards are the direct result of this decadence. As it is, India is being ruled by politicians who have filed false affidavits regarding their criminal antecedents, assets, liabilities and educational qualifications. The EC taking mere cognisance of these complaints is futile. Also, it should realise that filing a false affidavit is perjury, a criminal offence.

What then is the remedy? Under the Constitution, the duty and responsibility of conducting free and fair elections lies with the EC alone and not with the government, Parliament or Supreme Court.

It is, therefore, imperative that the EC exercise its pleni-potentiary powers under Article 324 and implement certain decisive measures to ensure electoral integrity. As contesting elections is not a fundamental right, criminals and corrupt people can be stopped by rejecting their candidature after special scrutiny. The scrutiny period can be extended from two days to two weeks. The battery of IAS, IPS and IRS observers that the EC deploys these days can be utilised for the purpose. As records would be available in the respective police stations and income tax offices, investigation can be completed in ten days or so. This is being done even to issue new passports.

As of now, the EC takes over six weeks for the polling process. With better management and coordination, this can be brought down to less than four weeks, thereby giving enough time to thoroughly scrutinise the documents of the candidates and reject those who have committed perjury by filing false affidavits about their crimes and wealth. This power could be vested with the Returning Officer, Chief Electoral Officer or the EC itself.

This robust response will have a strong effect on electoral integrity and could put democracy back on track. It is time the EC stops pulling punches and becomes proactive.

—The writer is a former Army and IAS officer

Lead Picture: Anil Shakya

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