The election laws

By K. K. Katyal

THE SUSPENSE over the candidature of the AIADMK leader, Ms. Jayalalitha, ended when her nomination papers were rejected. But the acrimonious controversy that erupted soon after continues - it may well intensify, given the emotive content of the poll campaign and the heavy stakes of the rival formations. The AIADMK is making full political use of the actions, taken under the law of the land. That may be understandable, but could one take a positive view of her bid to project herself as a chief ministerial candidate? She was barred from contesting for an Assembly seat because of her conviction by a court of law. For her to bid for a position which rests on membership of the Assembly - if not with immediate effect, after six months - is to run against legal and constitutional imperatives, apart from moral factors. It also amounts to thumbing nose at the institutional framework to ensure cleanliness in elections, on which only a modest beginning has been made. Ms. Jayalalitha would have enhanced her prestige had she waited for the disposal of her appeal against the conviction. As for her allegation that the cases against her were initiated out of political vendetta, she can depend on the judiciary for justice.

Two different issues are involved in this case - one, the political developments in Tamil Nadu and the role and place in them of Ms. Jayalalitha and, two, legal and moral requirements. The two are mixed far too often and, this results in erroneous conclusions and faulty appraisals. It is much worse, when facts are allowed to be coloured by fiction.

Thanks to the turn of the political wheel, Ms. Jayalalitha and her party, the AIADMK, have, of late, increased their hold. If the pendulum had moved to one extreme - against them - in 1996, it seems to be swinging to the other side now. For the purpose of the present discussion, it is not necessary to go into details - whether it is the phenomenon of the voter preferences in Tamil Nadu alternating between the two Dravidian parties or whether or not the reality is in tune with the perception, whether or not the incumbency factor works against her opponents. There are claims by the rival side, by the Chief Minister, Mr. Karunanidhi, and his party, the DMK, that there is no wave in her favour. They strongly discount the theories emanating from her camp. These matters need to be kept separate from issues arising from the rejection of Ms. Jayalalitha's nomination papers.

The decisions of the returning officers disallowing her from contesting were not unexpected. They were based on the E.C.'s order issued in 1997, which barred persons convicted of offences, specified in the Representation of the People Act, from offering themselves as candidates. The order, to quote its title, was about ``criminalisation of politics - participation of criminals in the electoral process as candidates - disqualification on conviction for offences - effect of appeal and bail''. In its rationale, it noted that ``the country is facing the serious problem of criminalisation of politics in which criminals, i.e. persons convicted by courts of law for certain offences, are entering in election fray and contesting as candidates''. The operative provision read thus: ``Now, therefore, the Election Commission has, after taking due note and paying due regard to the above (mentioned in the body of the order) judicial pronouncements of the Hon'ble Supreme Court and the Hon'ble High Courts, come to the considered view that the disqualification'' under the election law, ``for contesting elections to Parliament and State legislatures on conviction for offences mentioned therein, takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal.'' Exception is made in the case of sitting MPs and members of the State legislatures.

There is no ambiguity about the order and its effect. The appeal filed by the person affected by it may be accepted by the appropriate courts and the conviction set aside but, till then, the disqualification stays. The operation of this bar is not to be seen as a negation of the principle that a person is to be regarded innocent till he or she is found guilty.

Ms. Jayalalitha may well win the appeal but, as of now, the bar on her candidature remains operative. She is sore with the returning officers and her camp sees the hand of her rivals in the rejection of her nomination papers. In the din of the controversy, one central fact is lost sight of - that the Representation of the People Act (providing for disqualification, among other things) was first enacted in 1950 and a major amendment which made a distinction between the sitting legislators and others was adopted some 12 years ago. The E.C.'s order, essentially a clarificatory exercise, was issued on August 28, 1997. As required by the amended law, it exempted the sitting members of Parliament and State legislatures from the operation of the bar.

We have it on the authority of Mr. G. V. G. Krishnamurthy, former Election Commissioner who was actively involved in the framing of measures to reform the electoral processes, that the 1997 order was meant to tackle the problem created by criminals and crooks in their bid to enter legislative bodies. In the elections held the previous year (for the 543 seats of the Lok Sabha and 4,000- plus of the State Assemblies), some 1,500 candidates, according to him, were found to have criminal records and, of them, 40 were elected to Parliament alone. They were able to sneak into the system making use of various loopholes. This led the Commission to lay down guidelines for the candidates who, among other things, were required to file affidavits that they have not been convicted of any of the offences listed in the election law. The implementation of new do's and don'ts posed problems to the returning officers who sought clarification from the Commission. Hence the three-page order. As a result, it became difficult for the candidates to hide the fact of their conviction.

Over the years, unethical and ugly practices and trends had acquired formidable proportions which, if left unchecked, would have made nonsense of our credentials as the largest democracy. A beginning with electoral reforms could not have been delayed. Most of this job was the responsibility of Parliament which did not rise to the occasion for various reasons. The political parties vied with one other in their lip-service to the cause of reform but did precious little. Non-political, non-official bodies did try to sensitise the nation on the issue but could not achieve much. The E.C. initiated certain measures which covered only a small part of the problem. The 1997 order was one such step. It was based on the premise that law-breakers could not be law-makers.

Then there were other steps which showed that its diagnosis was correct and the remedy on right lines but could not cure the malady with its deep roots. For instance, it sought to restrict the number of political parties and check their proliferation - they totalled 650 some four years ago - by providing for a deposit of Rs. 1,500 for registration. It sought to discourage if not to eliminate non-serious candidates by increasing the security deposit - in the case of election for the post of President and Vice-President, it increased the number of proposers and seconders, apart from raising the security deposit. The impact, however, was limited.

In the final analysis, what was needed was collective, firm political will on the part of the political parties and leading politicians which was missing. As noted by Mr. Krishnamurthy, obviously on the basis of his experience in the E.C., corruption was not the monopoly of any political party. And we know that those who claimed to be a party with a difference have turned out to be bigger culprits. The problem is far too serious and should be tackled through drastic legislative measures, ruthlessly implemented, with the active cooperation of political parties. Any beginning in that direction, howsoever modest, needs to be encouraged, not undermined.

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