Msg: Gandhigiri - Nandini Voice For The Deprived - Views of the law students on Election Commission
Subject: Views of the law students on Election Commission Main Point: Views of the law students on preventing corrupt persons from contesting by Election Commission Category of Topic: Gandhigiri Message:
HIGHLIGHTS OF THE VIEWS OF THE LAW STUDENTS
“ Does the Election Commission have the powers to bar the persons from contesting, against whom charges of corruption or criminal acts have been admitted in the court?”
Nandini Voice for The Deprived , a Chennai based NGO organised a debate amongst law students on 5th May2013 at Chennai on “ 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 ?
The following senior law students from School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University participated in the debate
· Ms. R. Bhargavi
· Mr. P. Arun Sugavaneshwar
· Ms. J. Ponni
· Mr. K.M.Gowrinath
· Mr. R. Dhiraj
· Mr. S. Mithun
· Ms. R. Gayathri
The following were the observers for the debate
· Mr. P.K.N.Panicker, Educationist
· Mr. Syed Ali Mujtaba, Senior journalist
· Mr. S.M. Arasu, Anti corruption activist
· Mr.C. Elaiyaraja, Asst. Professor, Dr. Ambedkar Law University
Mr. N.S.Venkataraman , Trustee , Nandini Voice for The Deprived conducted the proceedings.
The highlights of the views expressed during the debate are given below
1. National concern about corruption
· There is widespread concern about the prevalence of corruption in the country. 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 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 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 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
· 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
· 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. 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 , 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 se will 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. 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 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.