Monday, October 21, 2013

Today's Editorial 21 October 2013

                                                          Nota Bene
Source: By Sam K Rajappa: The Statesman
The Constitution mandates adult franchise, giving every citizen the right to vote and elect his or her representative to govern the country or state on their behalf.  Reflecting on this solemn, inalienable right, the Election Commission had declared: “We the people through the exercise of our right to vote have the ultimate power to shape the destiny of our democracy by electing our representatives.” The political parties over the last six decades have corrupted the system by selecting candidates with money and muscle-power as long as they had the capacity to win, resulting in criminalisation of politics.  The Election Commission’s repeated pleas to the Union government to bring about electoral reforms to cleanse the system had fallen on deaf ears, forcing the Supreme Court to become proactive.

In July, the court struck down a provision to prevent disqualification of convicted legislators and barred those in custody from contesting elections.  On 27 September, the court held that a voter could exercise the option of negative voting and reject all candidates as unworthy of being elected by pressing “None of the Above” (NOTA) button in the Electronic Voting Machine.  The Conduct of Election Rules, 1961, framed under The Representation of the People Act, 1951, did have Section 49 (O) providing for the elector not to vote.  It was a cumbersome process.  The dissenting elector would have to fill in Form 17 A and put his signature or thumb impression in a register kept for the purpose.  It denied the voter secrecy of his choice. The Chief Justice, P Sathasivam, said in his judgment, “Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy.  Such an option gives the voter the right to express his disapproval of the kind of candidates being put up by the parties. Gradually, there will be a systemic change and the parties will be forced to accept the will of the people and field candidates who are known for their integrity.”

Democracy and elections are part of the basic structure of the Constitution.  Our electoral democracy, in part, has been reduced to a goonda-driven one by political parties nominating criminals as candidates. It was Lok Nayak Jayaprakash Narayan who took the initiative first to convert the ‘right to reject’ as a citizen’s charter by appointing a committee in 1977 comprising Krishan Kant, then Chandigarh MP who subsequently became the Vice-President of India, Justice VM Tarkunde and Sidhraj Dhadda, eminent Gandhian.  Though the issue was kept alive, it found favour with the Election Commission when TS Krishnamurthy was the Chief Election Commissioner. In a letter to the Union government in 2001, he sought amendments to the Conduct of Election Rules to make, among other things, the right to reject possible. As the government did not heed his request, Krishnamurthy wrote to Prime Minister Manmohan Singh in July 2004, saying, “The Commission has received proposals from a very large number of individuals and organisations that there should be a provision enabling a voter to reject all candidates in the constituency if he does not find them suitable. The Commission recommends the law should be amended to specifically provide for negative/neutral voting. For this purpose, Rule 22 and 49B of the Conduct of Election Rules may be suitably amended to add a provision in the ballot paper/balloting unit of a column ‘None of the Above’ to enable a voter to reject all the candidates if he chooses so.” The Prime Minister is yet to give his response.

Justice Sathasivam is of the view, “When the political parties will realise that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the parties will be forced to accept the will of the people.” Under the Representation of the People Act, the returning officer is bound to declare the candidate who secures the largest number of votes as the winner. NOTA is not a candidate.  If NOTA gets the largest number of votes, it is not clear what the returning officer will do. He does not have the power to order re-election.  Whether the candidates who lost to NOTA can enter the fray in a re-poll is also not clear.

Justice Sathasivam is right in saying, “For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote.” The Election Commission has said in a Press release: “In accordance with the order of the Supreme Court, NOTA shall be printed in a separate panel on the ballot paper below the name of the contesting candidate. This ballot paper shall be affixed on the ballot unit of the EVM.  If the voter presses the button next to NOTA, his desire not to vote for any of the candidates in the fray will get recorded in the EVM in secrecy.” The commission said that it would make appropriate changes in Part 2 of Form 17 C used during counting and the result-sheet in Form 20 to separately compile the number of persons who used the option not to vote for any of the candidates in the fray.

Whether “men of high moral and ethical values who win elections on a positive vote” will usher in an era of democracy free of criminalised politics remains to be seen, but introduction of the NOTA button in the EVM will certainly send a clear message to the political parties to nominate only sound candidates.

On 13 September, the Supreme Court delivered another judgment that no one could contest elections without making a full and truthful disclosure about his assets, educational qualifications and criminal antecedents. Somewhat rattled by the spate of Supreme Court orders relating to electoral reforms, the government on Monday questioned the jurisdiction of the court before a Bench comprising Justices RM Lodha and SK Singh. In an affidavit in connection with a plea to bar persons against whom charges have been framed in serious offences from contesting polls, the Law ministry said: “It is a settled position that courts do not interfere in policy matters of the State unless it violates the mandate of the Constitution or any statutory position or is otherwise actuated by mala fides.” The issue, in the opinion of the government, came under the exclusive jurisdiction of the legislature and was covered by provisions in the laws relating to election. Parliament’s standing committee on personnel, public grievances, law and justice while expressing concern over criminalisation of politics, expressed the view that “prosecution in many cases is bound to be influenced by the party in power or by failure of system and in that case there was very likelihood for framing false and mala fide charges against their political opponents.”
The Forum for Electoral Integrity says the recent Supreme Court orders are the first steps in ushering electoral reforms to prevent criminals from enacting laws of the country. It is the failure of the UPA government to introduce much needed electoral reforms that forced the Supreme Court to enter into the realm of the legislature.  The time has come for Parliament to enact a comprehensive law to completely reform the electoral system.

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