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Justice without      justiciability? The laws, in hindsight An irrelevant fury Left, or left out? A special responsibility

The people vs the government

As members of Maharashtra's legislative assembly were shunted off to hideaways, we are reminded once again of the depths to which representative government has sunk. Let us be clear on this -- these MLAs were hidden from other parties' representatives, specifically to prevent them from changing sides in midstream. Any ideological consideration of a politician's life would preclude such treachery normally. The only imaginable reasons why an elected legislator would suddenly back a different horse with no ideological conflict in sight are plain to one and all -- money and power. These representatives are on the auction block, and their sale is being prevented by some, encouraged by others, and demanded by still others.

We've seen every variety of legislator flee from his friends and foes alike over the years, and the only compelling conclusion to be drawn from those examples is that pretty much everyone is up for grabs, given the right consideration. Incredibly, the absconding legislators, allegedly touring Karnataka to gain valuable insight into that state's progress, themselves freely admitted their susceptibility to money and muscle!! At any instant, their affiliations were little more than an outward appearance of alignment with those they either fear or profit from the most.

Ordinary citizens who are typically unconnected with the crimes that pass for government in India no doubt despair of this state of affairs. Mercifully, the Supreme Court finally provided relief, by way of its judgment in early May that the Election Commission of India must ask candidates to various elections to disclose details of any criminal antecedents. Declaring that voters must have the opportunity to make informed choices, the court directed that the candidates disclose a few key things -- having been tried in criminal proceedings, including details of convictions, as well as recent accusations of participation in major crimes.

That these questions should become necessary is itself troubling, but having arrived at the abyss where such probing is warranted, we can only celebrate their inclusion with filing papers. Moreover, the court declared, the assets and liabilities of near and dear ones, in addition to those of the candidate him/herself, are also to be provided. This last bit is an especially deep wound to many of our functionaries who have borrowed liberally from public sector banks. It is no secret that the largest beneficiaries of nationalising banks have been legislators and the businesses allied to them. For the amount of money wasted in unconscionable loans to these worthies, the debts of millions of poor people could be written off.

To nobody's surprise, both the Bharatiya Janata Party and the Congress are opposed to the court's decision; they actually presented arguments against such disclosure during the trial in the Supreme Court. The Association for Democratic Reforms filed the original petition in the Delhi high court. Once that battle was won by the petitioners, the Union government appealed to the Supreme Court, at which point the Congress joined in the appeal in a display of non-partisanship not normally seen in the legislative arena! Legal minutiae have always remained outside the awareness of the ordinary citizen, and probably explains the brazen-ness of adopting such stances. Voters' ignorance is crucial to the survival of political parties in their current form, and public opposition to disclosure of criminal behaviour merely affirms this.

The verdict having been passed, we arrive at the phase of implementation. The devil, once again, is in the details. The compliance of the Election Commission with the court's orders will ultimately determine whether the reform sought by the petitioners will actually arrive. Shall a candidate who does not file such papers be denied the opportunity to contest elections? Shall a candidate who files false affidavits be disqualified later, or even prosecuted in the courts? The answers to these and other questions are clearly significant in determining the course along which electoral reform now proceeds.

Publicly, the Election Commission backs full disclosure by all candidates, including disqualification and prosecution as responses to incomplete and false declarations respectively. Privately, however, the beatniks are up to their usual shenanigans. The Representation of People Act 1951 provides for a very specific process by which candidates file their nomination papers. Some portions of the Act, however, are either poorly worded or simply not in the public interest. For instance, the Act is clear that nominations that are not substantially defective shall not be rejected. Notice the double negative -- the Act does not say what shall be done with defective nominations; instead it prescribes only the manner in which those that are NOT defective shall be treated!

A further circumvention of the public good results from the qualifier 'substantial.' Who shall decide if the absence of the information the Supreme Court is calling for is 'substantial?' Well, the nature and content of the nomination form is derived from a particular rule in the Act, and the authority to determine that rule rests with the Union government! Full circle.

There is, however, one saving grace to the closed loop of defeating the public interest -- no party or institution wishes to be publicly identified as being solely responsible for stalling democratic reform. Therefore, even as they collude to override the public interest, they maneuver to appear untainted, should any unexpected barbs be flying about. The Election Commission, for its part, has referred the matter to the law ministry. The Commission, on the record, is willing and ready to abide by the court's orders, but believes it may lack the authority to act independently, should the government not perform its role as well.

Clever! Indeed, very clever. Ah, but the plot thickens further. The Constitution is full of these nuances that permit various bodies the latitude to function with various degrees of authority. One such is Article 324, dealing with the "superintendence, direction and control of elections" and the role of the Election Commission in those tasks. The courts, in interpreting this Act, have generally accepted that the Election Commission has the responsibility to make the inclusion of various affidavits a necessary part of the nomination process. Moreover, this sort of action by the Commission can only be challenged in the courts, and given the current wisdom of the courts on electoral reform, the politicians would be loathe to challenge the EC, should it decide on its own to make the disclosures mandatory.

Various public interest groups are calling for the EC to do just this. Having declared publicly its willingness to carry out the Supreme Court's ruling, the Commission will be careful to avoid backing away from exercising this option. Should he actively seek good reform, moreover, the Election Commissioner possesses the luxury of functioning with constitutional authority; challenging his judgement and decision is no easy matter. Individual state election commissions are also grappling with the question as to whether the court's rulings can be applied to all local elections as well, although the judgement did not address this.

There is a lesson in all of this for every civic minded citizen, indeed more than one. First, the detailed statements that make up the law, and small changes in their wording, have significant impact on the way civil society is organised. Second, with such specifics being unintelligible to vast sections of the population, it is imperative that public action groups, opinion-makers, and others promote the awareness of them to larger audiences. And third, that the persistent quest for electoral and democratic reform is an inextricable part of improving our nation. The process isn't easy, or even immediately rewarding to those who dedicate their lives seeking such positive change. Nonetheless, it is necessary.

For the legislators too, there is a significant lesson to be drawn from the workings of this case through the courts, and from subsequent actions by the Election Commission. In a system of representative democracy, the legislators must learn to speak with the voice of the people, and not merely profess their good. Fine scrutiny of our laws reveals the degree to which representatives have separated their public statements of service to the nation from the exploitation of the nation for their private gain. Mercifully, equally fine examination of those same laws, combined with activist interpretations from the judiciary, is now challenging the political class to demonstrate transparent leadership.

Honest representation requires the political courage -- and more importantly, the character -- to make choices publicly and with sufficient justification provided to the voters. Alliances made in closed coteries serve only to highlight the fallen nature of our leaders. By continually manipulating the political and legal systems to degrees of shame that permit no defense whatsoever, they have painted themselves into a corner. Until finally the nuances of the very laws they erected to derive impunity now stand ranged against them. Lawmakers who flee their constituencies amidst rampant horse-trading provide abundant fodder to the cannons of those who seek genuine reform, and the message to them grows louder at each turn.

You can run, but you can't hide.

Acknowledgement: My grateful thanks to Jayaprakash Narayan and to other members of Lok Satta, (www.loksatta.org) whose monitoring of electoral reform provided invaluable input. My thanks and salutations also to the Association for Democratic Reforms, the original petitioners. The law, we sometimes hear, is an ass. The purposefulness with which these groups seek electoral and legal reform gives belief to the opposite view -- that the law is no ass, but may sometimes need rescuing from the clutches of those who see the Indian people only as beasts of burden.

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Ashwin Mahesh