It’s been a long and bumpy road to electoral reform

Jagdeep Chhokar

IN a landmark judgment 20 years ago, the Supreme Court made it mandatory for candidates contesting elections to Parliament and state Assemblies to disclose their criminal, financial and educational antecedents by way of a self-sworn affidavit to be submitted as a necessary part of their nomination papers.

A three-judge bench unanimously struck down an amendment to the Representation of the People Act of 1951 which had sought to keep from public view the records of politicians standing for elections.

The court weighed in on behalf of citizens, saying they not only had the right to participate in elections, but also be informed voters. 

The lead judgment, written by Justice M.B. Shah, declared “Section 33-B of the Amended Act is held to be illegal, null and void.”

It is impossible to say whether it was ordained or fortuitous but Civil Society magazine was launched six months later in September 2003 to “tell stories of change from across the chaotic landscape of post-reforms India”. The Supreme Court’s judgment, six months earlier, on March 13,  was an important piece in electoral reform and liberalization in favour of the citizen.

But what does declaring “Section 33-B of the Amended Act is held to be illegal, null and void” have to do with electoral reforms? This needs some clarification.

The Association for Democratic Reforms (ADR) had filed a public interest litigation (PIL) in the Delhi High Court in 1999, seeking that disclosure of criminal, financial and educational antecedents by candidates contesting elections to Parliament and state Assemblies be made mandatory. The Delhi High Court, in a judgment on November 2, 2000, upheld the petition.

This was not acceptable to the Union government of the day and the Union of India filed a Special Leave Petition (SLP) challenging the judgment of the Delhi High Court. Several political parties became intervenors in the case in support of the government. But the Supreme Court, in a judgment on May 2, 2002, rejected the appeal  and upheld the Delhi High Court judgment.

The Union government was, however, not satisfied. An all-party meeting decided that the judgment of the Supreme Court would not be allowed to be implemented. It was decided to  amend the Representation of the People Act  by inserting Section 33-B through an ordinance which was later passed by Parliament. It was this amendment to the Act which was challenged in the Supreme Court.

 

COMMITTEES AND PEOPLE

Electoral reforms had been an occasional topic of national discourse since the mid-1960s.  One of the earliest committees set up by the Government of India, the Dinesh Goswami Committee, wrote in May 1999, “All these four decades, especially after 1967, the demand for electoral reforms has been mounting up.”

Nothing majorly significant happened despite several committees having been set up and having submitted their reports.

The  Vohra Committee Report (1993)  focussed on the criminalisation of politics; the Indrajit Gupta Committee (1998) on state funding of elections; the 170th report of the Law Commission of India dealt with ‘Reform of the Electoral Laws’ (1999). In 2002 came the report of the National Commission to Review the Working of the Constitution.

After 2003, there seemed to have been a spurt in the filing of public interest litigation on various aspects of electoral reforms. Some of the important petitions are listed below.

The People’s Union for Civil Liberties (PUCL) filed a PIL on April 1, 2004, asking for the provision of a NOTA (None Of The Above) button on electronic voting machines to enable a voter to say that they did not want to vote for any of the candidates on the ballot without any breach of the secrecy of voting. ADR became an intervenor in the case. A three-judge bench upheld the PIL on September 27, 2003, directing the Election Commission to provide the NOTA button on the EVMs.

 

TWO PETITIONS

In 2005 two petitions were filed. One by an organization called Lok Prahari on April 19, 2005, and another by advocate Lily Thomas on September 1, 2005, asking that Sub-section 4 of Section 8 of the Representation of the People Act (RP Act) 1951 be declared unconstitutional and struck down. ADR became an intervenor in the case.

The two petitions were heard together and resulted in a landmark judgment on July 10, 2013, which declared Section 8(4) of the Representation of People Act unconstitutional. This judgment needs some explanation.

Section 8 of the Act, titled “Disqualification on conviction for certain offences”, provided broadly that any person who is convicted of a criminal offence for which the punishment is two or more years of imprisonment, is disqualified from being an MP or MLA for a period of six years from the date of conviction.

Sub-section 4 of Section 8 made a special provision for sitting MPs and MLAs in that it said that if convicted of such an offence they would not be disqualified immediately but have a period of three months in which to file an appeal. If the appeal was admitted for hearing, not accepted or approved, they could continue as MLA or MP till the appeal was finally disposed of by  the Supreme Court.

The result of this special provision was that while a common citizen could not contest elections for six years from the day of conviction, sitting MPs or MLAs could continue to contest elections till an appeal was disposed of by the Supreme Court, a process which could take years and years! Lok Prahari and Lily Thomas challenged this special provision and the Supreme Court upheld their petitions and removed this special provision.

A review petition was filed and was rejected by the Supreme Court on September 4, 2013, giving finality to the judgment.

This judgment had two interesting consequences. Once the judgment became final, its implications started worrying politicians. Judgment in the fodder scam case in Bihar, in which Lalu Prasad Yadav was a prime accused, was expected and Lalu Prasad was likely to be convicted.

Lalu Prasad’s party, the Rashtriya Janata Dal (RJD), was one of the members of the United Progressive Alliance (UPA), and the government headed by Manmohan Singh did not want Lalu Prasad to be ousted from Parliament. The government, therefore, prepared a draft ordinance to undo the Supreme Court judgment.

In a dramatic event on September 28, 2013, while the draft Ordinance was being presented to the media in a press conference in the Press Club of India in New Delhi, and the prime minister was on a visit to the US, Rahul Gandhi, who was then vice-president of the Congress party, walked into the press conference and physically tore up the draft.

“I’ll tell you what my opinion on the ordinance is. It’s complete nonsense. It should be torn up and thrown away. That is my personal opinion. … I am interested in what the Congress is doing and what our government is doing. That is why what our government has done as far as this ordinance is concerned is wrong," Gandhi said.

In the event, Lalu Prasad was convicted by a CBI court on September 30, 2013, and sentenced to five years of rigorous imprisonment on October 3 and  disqualified from the Lok Sabha on October 22.

The second interesting consequence came almost 10 years later, in early 2023, and it came to Rahul Gandhi himself.

Gandhi was convicted of defamation and sentenced to two years’ imprisonment by a court in Surat, in Gujarat, on March 23. Consequently, he was disqualified as a member of Parliament. But his conviction was stayed by the Supreme Court and he was reinstated.

 

NUDGING THE SYSTEM

Many other petitions have been filed and many orders have flowed from the Supreme Court. Not all of them have resulted in major reforms to the electoral system but some have been effective in nudging the political system into action, sometimes retrograde.

Two significant cases in the recent past have been on the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) and on electoral bonds. Another one, seeking implementation of the Central Information Commission’s full-bench unanimous judgment declaring six national political parties as ‘public authorities’ under the Right to Information Act is still pending in the Supreme Court since May 2015.

Yet another petition seeking a robust and transparent system for counting of votes, based on the experience of the 2019 Lok Sabha election, has also been pending, waiting to be listed, in the Supreme Court.

Electoral bonds have already been written about in an earlier issue (Civil Society, December 2019). A case filed by ADR and Common Cause was finally heard earlier this year and  judgment was reserved.

The issue of appointment of the CEC and ECs is currently in the news. The CEC and ECs have been appointed by the President solely on the advice of the government of the day since Independence although Article 324(2) of the Constitution required Parliament to make a law in this regard. No government has ever felt the need to make this law.

This issue was challenged in the Supreme Court by ADR in a PIL filed on May 17, 2021. The Court decided that Parliament should make such a law, and till the law is made by Parliament, the CEC and the ECs should be appointed by the President of India on the basis of the advice tendered by a committee consisting of the Prime Minister, the Leader of the Opposition in the Lok Sabha and, in case there is no such leader, the leader of the largest party in the Opposition in the Lok Sabha and the Chief Justice of India.

This seemed to have disturbed the government of the day significantly. The government has on December 21 got a law passed in Parliament, with over 140 MPs of the Opposition having been suspended. The law is   a complete negation of the Supreme Court’s judgment. It replaces the Chief Justice of India in the selection committee with “a Union Cabinet Minister to be nominated by the Prime Minister”. So, the matter is back to square one!

The story of electoral reforms over the past 20 years has been one of one step forward and one and a half steps backwards. Civil society proposes, the judiciary sometimes approves, and then the politicians dispose! The struggle continues and will continue.

 

Jagdeep Chhokar is a concerned citizen