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Towards free and fair elections in India

After the Karnataka Assembly election results were announced, Chief Election Commissioner N. Gopalaswami, in an article, “Election, a democratic festival?” (The Hindu, May 31), disclosed the following:

When the Commission discharges its obligation of implementing the law, political parties are accusing it of throttling democracy; there is a danger of our democracy being hijacked by the demon of unaccounted wealth earned unscrupulously and spent to grab power; unscrupulous candidates are hijacking elections with their money power; nobody who has closely watched the scenario all these years can say money and liquor do not play a part in the elections; the value of hard cash, liquor and goodies seized in Karnataka was Rs.45.57 crore; if muscle power is employed in poorer States, it is money power in richer States; and if we do not want our democracy hijacked by unaccounted wealth, we should sit up and take notice before it is too late.

These revelations clearly demonstrate that the Election Commission is helpless and unable to initiate concrete action to curb criminalisation of politics which primarily implies the use of money and muscle power by politicians.

In this context, it is relevant to recall what the former Chief Election Commissioner, of India, V.S. Rama Devi, said in the book How India Votes, Election Laws, Practice and Procedure. “Where the existing laws are absent and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to god for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently … and see that the election process is completed properly in a free and fair manner.”

A Constitution Bench of the Supreme Court in the case of Mohinder Singh Gill and another vs. the Chief Election Commissioner (AIR 1978 SC 851) held that under Article 324, the Commission is entitled to exercise certain powers in its own right in an area not covered by the Representation of the People Act and Rules; the Commission shall act in conformity with any valid law made by Parliament or any State Legislature and where the law is silent, Article 324 is a reservoir of power for it to act for the purpose of pushing forward, but not divorced from, a free and fair election.

Poll reforms were presented by successive Election Commissioners — Sen Verma in 1972, S.L Shakdhar in 1977, R.K. Trivedi and Perisastri, and T.N. Seshan in 1992 — aimed at eradicating criminalisation of politics. A committee with Union Home Secretary M.N. Vohra as Chairman said in its report that mafia gangs enjoyed the patronage of local level politicians and that some gang members even got elected to the Assemblies and Parliament.

In August 1997, the then Election Commissioner, G.V.G. Krishnamurthy, made out a strong case for legislation and administrative measures to curb criminalisation of politics. He disclosed that in the 1996 general elections, the Commission seized illegal arms which included 2,000 guns, 11,000 cartridges, 175 explosives and 57,000 bombs; of the 13,952 candidates who contested, nearly 1,500 had criminal records; and almost 700 MLAs out of 4,722 in the country were involved in criminal cases and trial was pending against them. The issue prominently figured during the special session of Parliament held in August 1997 and it was unanimously resolved to carry out meaningful electoral reforms.

In July 1998, the Election Commission suggested that persons chargesheeted for offences punishable with imprisonment for five or more years be disqualified from contesting elections to Parliament and the State legislatures. It was only when court took cognisance of the charges that summonses were issued to the accused. Thus there was a safeguard against false and motivated criminal charges.

The Law Commission, in its 170th report, recommended that a candidate be debarred from contesting if charges were framed against him for certain offences. In the case of Union of India vs. the Association for Democratic Reforms, the Supreme Court affirmed the rulings in the Common Cause vs. Union of India case that the Election Commission had the power to issue directions even in the absence of a provision in the R.P. Act and that Article 324 operated in areas left unoccupied by legislation.

Based on the aforesaid rulings, the Election Commission issued an order calling for affidavits from candidates, furnishing information on their criminal antecedents, properties possessed by them — their spouses and dependents — liabilities, government dues and educational qualifications. More than 100 MPs elected to the 14th Lok Sabha disclosed that they were facing charges of murder, assault, cheating, criminal conspiracy, kidnapping, forgery, criminal breach of trust, rioting and rape.

The issue raised by Mr. Gopalaswami about elections being fought with money was dealt with by the apex court in the Common Cause case, holding that that the Election Commission would be justified in asking a party to file an account of expenditure incurred by it on its candidates.

If, even after the clear rulings by the court, the Commission is helpless in curbing criminalisation of politics, it is because of the political parties’ indifferent attitude. When the parties adopted a unanimous resolution in the Lok Sabha, it was thought that they were committed to curbing criminalisation in politics. But in all subsequent Lok Sabha and Assembly elections, they accommodated corrupt and criminal elements. Now that Mr. Gopalaswami has expressed his anguish openly and called upon the electorate to sit up and take notice, one hopes that at least the recognised national parties will commit themselves to bringing about the requisite electoral reforms.

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