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Can election commission prevent corrupt persons from contesting in elections in Asian democratic countries ?

May 17, 2013 , ,

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By N.S.Venkataraman

In Asian countries  like India , Sri Lanka, Pakistan and Bangladesh democracy is well entrenched and people participate in the electoral process with enthusiasm.


However, in all these countries , there have also been criticisms that the elections have always not been free and fair. Corrupt persons and criminals contest and win elections by their money power and muscle power and then become law makers themselves. The democratic system in these countries can be called legitimate only if such persons can be prevented from contesting at all by enactment of suitable laws. However, the enactment of such laws is not happening , since a number of persons who get elected and  become law makers are themselves involved in corrupt practices. 

How to solve this problem and ensure really free and fair electoral system in the Asian democratic countries  ? 

In order to find a solution to the vexed issue Nandini Voice for The  Deprived  (www.nandinivoice.org)   , an India based non governmental organisation ,  organised a debate amongst  senior  law  students on  5th May2013 at Chennai on the subject     "Does the Election Commission have the powers to bar the persons from contesting,against whom charges of corruption and criminal acts have been admitted in the court?" 
Many productive and worthwhile observations and recommendations were made by the law students during the debate.  

Though the debate took place largely with reference to the Indian scenario, the findings of the law students are as well applicable to other countries like Sri Lanka, Bangladesh and Pakistan.
 The highlights of the views  expressed during the debate are  given below

1.     Concern about corruption

·          There is widespread concern about the prevalence of corruption  in  India  and other Asian countries.  Such corruption  is happening  mainly due to the fact that many corrupt persons and criminal elements contest in the elections to assemblies and parliament and quite a number of them get elected due to their money power and muscle power.  It is imperative national need to de criminalise politics, which can happen only by preventing  corrupt persons and criminals from entering parliament and assemblies.

·          Different  views  have been expressed  during the debate as to whether the Election Commission has  the  powers to bar those from contesting, against whom charges of corruption and criminal acts have been admitted in the court.

2.       Arguments  suggesting  Election Commission has   such powers

 Election Commission has the power  under Article 324 of the  Indian  constitution.

2.1.   Article 324

·          The phraseology “superintendence, direction and control”…” conduct of all elections” (under Article 324 of the Constitution) and its essentials are not comprehensively laid down.The terms are of wide amplitude and empower the Election Commission to take recourse to address the issue of de criminalization of politics. Importantly,  in the absence of Casus Omission (case of Omission in Law) , though the Judiciary cannot amend by formal means, it can interpret and provide the necessary details to fill the lacuna or non-liquet (law is not clear), wherein the jurisprudence can be evolved and empower the Election Commission.

·          Obviously, the Indian constitution makers have left Article 324 in this way , to pave way for the Election Commission to use its powers to   conduct elections in fair and free manner,  based on the exigency of the situation and the ground  realities.

2.2.   Operation of Election Commission is part of special law :

·          The Indian Election Commission and its operation form  a part of lex specialis (special law) and it is significant to understand that by way of its functioning in times of exigency, it is not in contravention of the constitutional laws but it is well equipped and constitutes an appropriate organ.

2.3.    Unique institution

·          Indian Election Commission is an unique institution  and the directives of Election Commission even if they are not laws has the force of law, when it comes from Election Commission.

2.4.   Inherent powers

·       Indian   Election Commission has the inherent power to bar those persons from contesting election , against  whom corruption and criminal charges have been admitted in the court. The notion of inherent powers (ex debitio justitiae) is basically a principle of natural law (jus naturalae) that it remains unchangeable. It is also a virtue of human value. Therefore ,it need not be seen as a residual power but a thesis of Values on Justice, (in the present context Electoral Justice). The Election Commission with its mandate firstly can ensure that de criminalization of politics falls under the category of exigent situation; secondly by way of a directive clearly frame the relevant proposals into the subject (developed by the Election Commission ).

2.5.   Indian Election Commission need to assert itself

·          Election Commission  should clearly declare   that  with those accused of  criminal acts  and corruption  contesting  , the elections conducted in the country are no more free and fair and therefore, there is urgent need to bar  those persons from contesting election, against whom corruption and criminal charges have been admitted in the court.  Such stand of Election Commission  would virtually amount to questioning the present conditions of Indian electoral democracy and neither parliament  nor judiciary can ignore such stand of the Election Commission, which is a constitutional body.

·          If and when the Election Commission would assert itself and take a firm stand that those persons against whom corruption and criminal charges have been admitted in the court cannot contest elections,  parliament certainly   cannot ignore such view.  This is particularly so in the present conditions , where public concern and anger about corruption in national life is widespread.

2.6. Peaceful election no substitute for fair elections

·          These days , Indian  Election Commission appears to give an impression that it would be satisfied if the elections would be conducted in a peaceful manner, irrespective of the fact, whether it  would be conducted in free and fair manner. There are number of cases  of   money power and muscle power  being used in the elections and in most of such cases , Election Commission has remained conspicuous by its silence. Several such instances in the recent past have been  cited during the debate.   This weak approach of the Election Commission has really contributed to emboldening the criminals and corrupt persons.

2.7. Human Rights aspect

·          Election Commission  should act, further considering the fact that fair elections is a part of Human Rights.   The concept of “free and fair, genuine election/right to vote through the means established in the constitution (free will of the electors)” is also basically a Human Right as per the International Human Rights Law. The International Covenant on Civil and Political Rights, 1966 under Article 2 Paragraph 2 read with Article 25 envisages such an ideal. India is a Contracting Party to it and is having a mandate to comply the norms by way of the available constitutional schemes (the case of Election Commission to operate).

·          Further, the definition of the term “Human Rights” under the Protection of Human Rights Act also incorporates the application of International Human Rights Convenants for its effective enforcement. The question of  de criminalization of politics by its nature attracts the inter application of Human Rights, Public Law (Constitutional Law, Justice Administrative Law and International Law), Criminal Justice System. Therefore ,an Institutional Framework has to be established, for the effective addressal of the subject.

2.8. Criminalisation of politics is a matter of crime

·          The concept of criminalization of politics itself constitutes a crime. The existence of criminals in politics per sewill  affect the achievement of the objectives of the constitution, where in the victims are the people. Therefore, the subject of criminalization of politics as a matter of crime has to be examined, apart from the offences relating to election and its extended form mentioned in the relevant statutes.

2.9. Indian Election Commission should exercise its powers

       Considering the above facts and legal justification, Election Commission has to exercise powers  to bar those persons from contesting,  against whom charges of corruption and criminal acts have been admitted in the court.  
       
3.       Arguments  suggesting  Election Commission  has no such powers:

·          Election commission can act on its own only in such situation , where law is silent. It cannot issue orders  without the backing of the law.

·          Election Commission simply barring those persons against whom corruption and criminal charges have been admitted in the court from contesting ,would  be a violation of the principle of natural justice.  There are many cases, where  charges have been admitted against a person but who has been discharged  as  innocent later on.

·          In today’s conditions  where people’s awareness and disgust about corruption is widespread, we should depend upon people’s verdict   to defeat the corrupt and criminal persons in the elections.  This will be the most democratic way of ensuring free and fair poll.

·          Election Commission should ask for setting up a fast track court   to hear  the cases of those ,who seek to contest election against whom charges have been admitted in the court. In the case of such persons, the election results can be withheld, until the fast track court would give its verdict. Maximum time limit should be given to the fast track court  for giving its decision.

·          Election Commission may ask the Government of India to give judicial powers to Election Commission though this may be resisted, as it will amount to intruding into the territory of the judiciary and the judiciary may object to it.

4.       Likely approach of the Indian judiciary

·           In the case of Election Commission  using its powers and barring the persons from contesting  against whom criminal and corruption charges have been admitted in the court, how will the judiciary react ?

·          The constitution is an Organic/Living document. Therefore, it should be liberally interpreted , wherein it will also address the needs of the future societies.

·          In democratic countries like India and Sri Lanka,  judiciary is also evolving just as democracy is evolving.

·          It has been recognised several times  that constitution enacted several decades back need  to be amended in tune with the changing times and aspiration of the people.  In such circumstances, no judgement can be conclusive.  Whatever judgement Supreme Court of India has given earlier with regard to powers of Election Commission need  not  be considered  as sacroscent , since  judiciary itself has revised several of its verdicts  in the past.

·          In the case of the judgement against Mr. P.J.Thomas , who was Chief Vigilance Commissioner of India,  the Supreme Court of India observed that  persons holding such positions need personal integrity though,   in this case, Mr. P.J.Thomas’s  case has been  pending in the court. Mr. P.J. Thomas subsequently resigned.  If Supreme Court would hold such a view on Mr.  P.J. Thomas case, it should hold similar views in the case  of legislators and parliamentarians  too , who are the law makers.  How can a law maker be of doubtful   integrity , which is so when corrupt and criminal cases  would be pending against them in the court.?

·          In such circumstances, any move of the Indian Election Commission to bar those persons from contesting against whom corruption and criminal charges have been admitted in the court, need not be considered as disobedience of the Supreme Court directives, particularly when such directives have been given by Supreme Court in some other context at some other time in the past, when conditions were different.

·          Supreme Court  of India  may   be approached  by Indian  Election Commission to give its decision in the matter of the powers of Election Commission,  if it thinks that it would be necessary. 

·          However, this is not  necessary,  since Indian  constitution has to be interpreted in liberal manner duly considering  its original objectives and intentions and not in restrictive manner . Election Commission,  a constitutional  body,  is entitled   to take its view based on its conscience and wisdom, particularly since it is the conscience keeper of the nation similar to the judiciary.

5.       Now ball is in the court of Indian Election Commission :

·          Today, it is unrealistic to expect that Indian parliament will enact laws, barring those persons from contesting, against whom corruption and criminal charges  have been admitted in the court.

·          In the past, Election Commission of India  has sent number of recommendations for electoral reforms to the Government of India and almost all of them have been ignored. Election Commission should not be satisfied simply by sending recommendations and thinking that it has done its duty. It does  not complete its duty simply by sending recommendations and proposals.  It should move beyond this to fulfil its duty  and responsibility.

·          When elections are not conducted in free and fair manner, what is the use of electoral law  and what is the use of Election Commission ?  If Election Commission would simply remain as an observer,   then what is the way out  ?

·          Some agency has to step out to protect the free and fair electoral process and  Election Commission is  the most appropriate agency to do so  as it is directly responsible.  If it would not act, it would clearly give an impression to the country men   that it has no commitment  to the cause of fair and free poll.

·          While the people’s strong sentiments to bar those persons from contesting against whom corruption and criminal charges  have been admitted in the court should enthuse  Election Commission to act,  all the more its realisation of its duties and  responsibilities  to the Constitution and people of India should spur it to act.

·          If Election Commission of India would not do so, it would amount to  grave let down of country’s  India's electoral democratic  process  by the Election Commission.

Venkatraman Ns's profile photoN.S.Venkataraman
Nandini Voice For The Deprived
Besant Nagar,
Chennai-90  India
Tel:- 91-44-24916037


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