Daily Times

President Abraham Lincoln defined democracy as ‘government of the people, by the people, for the people’. Lincoln had also propounded that ballot is more powerful than bullet. Dr Basus’ locus classicus on constitution has defined democracy thus: “One of the three forms of government: that in which the Sovereign Power is neither lost in man, as in monarchy nor in the nobles, as in an oligarchy, but in the collective body of the people: government by people: state in which such a government prevails, the principle that all citizens have equal political rights. It is interesting to note that the original and etymological meaning of the word ‘democracy’ is derived from Greek demos (the people) and kratos (authority) to mean government by the people as contrasted by the government of the one or the few. It is used by the Greeks to refer to the direct democratic government of the City States. The subsequent development of the term has however departed from the original meaning primarily because of the impracticality of carrying on the government of the modern State according to the vote of the entire body of the people. Parliamentary democracy envisages:

(1) Representation of the People.

(2) Responsible Government.

(3) Accountability of the Council of Ministers through the legislature.

The democratic setup envisaged by the Constitution requires free and fair election through an independent body insulated from political or legislative interference. Fair election contemplated the disclosure by the candidate of his past including the assets held by him/her, to give a proper choice to the candidate according to his thinking and opinion.”

The expression ‘candidate’ literally means clad in white. Dr Wilfred Funk in his book Word Origins states, “When a Roman politician went campaigning he took care that his Toga was immaculately white so that he could make the best impression possible.” The Latin word candidatus first simply meant ‘a person dressed in white but later it took on the meaning of a seeker after office.

Eminent Judge Krishna Iyer in Mohndra Singh Gill v Chief Election Commissioner (1978) 1 SCC 405 observed: “Democracy is government by the people; it is a continual participatory operation, not a cataclysmic periodic exercise. The little man in his multitude, marking his vote at the poll does a special audit of his Parliament plus political choice of his proxy. Although the full power of participative government rarely blossoms, the minimum credential popular governments appeal to the people after every term for a renewal of confidence. So we have Adult Franchise and General Elections as constitutional compulsion. The right of election is the very essence of the Constitution. It needs little argument to hold that the heart of the Parliamentary System is free and fair elections periodically held, based on adult franchise although social and democratic democracy may demand much more.”

It is interesting to recall that the Supreme Court of India in Union of India v Association for Democratic Reforms (2002) 5 SCC 294 gave the following directions: “The Election Commission is directed to call for information on affidavit by issuing necessary Orders from each candidate seeking election to Parliament or State Legislature as necessary part of his nomination paper furnishing therein information on the following aspects in relation to his/her candidature:

Whether the candidate is convicted/acquitted/discharged of any criminal offence in their antecedents — if any, whether he is punished with imprisonment or fine.

Prior to six months of filing nomination papers whether the candidate is accused in any particular case of any offence punishable with imprisonment for two years or more and in which charge is framed or cognizance is taken by the court of law, if so the details thereof.

The assets (movable or immovable), bank balance, etc. of the candidate and of his/her spouse and dependants.

Liabilities if any, particularly whether there are any overdue to any public financial institution or government dues.

The educational qualification of the candidate.”

First an Ordinance was promulgated and, subsequently, the Representation of the People (Third Amendment Act, 2002) was enacted diluting the right to information. The validity of the act was challenged in the Supreme Court. Inter alia, it was argued that voter’s right to know antecedents including criminal past of the candidate to membership of Parliament or Legislative Assembly is a Fundamental Right. It was submitted by the Government, among others, holding of any asset (movable or immovable) or any education qualification are not part of eligibility criteria to contest the elections. It was argued that the Supreme Court cannot give any directions for amending the Act or the Statutory Rules; it is for the Parliament to amend the Act and the Rules.

It was held by the Indian Supreme Court that in a democratic form of government, voters are of utmost importance. They have a right to elect or re-elect on the basis of antecedents and past performance of candidates. The voter has choice of deciding whether holding of educational qualifications or holding of property is relevant for electing or re-electing a person to be his representative. The voter has a right to decide whether he should cast his vote in favour of the candidate who is involved in criminal case. For maintaining purity of elections and healthy democracy voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided. The court took note that bulk of electorate is illiterate and held that there is no necessity of suppressing the relevant fact from the voters.

The court took note of the Vohra Report of the Government of India, which held as follows:

Some political leaders become the leaders of gangs, armed sinas and over the years get themselves elected to Local Bodies, State Assemblies and National Parliament resultantly, such elements acquired considerable political clout and are seriously jeopardising the smooth functioning of the administration and safety of life and property of the common man causing a sense of despair and alienation among the people.

The big smuggling syndicates have international linkages and have spread into and infected the various economic and financial activities including hawala transactions, circulation of black money. These syndicates have acquired substantial financial and muscle power and social respectability and have successfully corrupted the government machinery at all levels.

Certain elements of the mafia have shifted to narcotics, drugs and weapon smuggling and established narco-terrorism networks. The cost of contesting elections has thrown the politician into the lap of these elements. The Supreme Court almost reaffirmed the direction.

Subsequent events in India: it may be noted that according to a report (Hindustan Times, September 8, 2011) among 395 members of the Legislative Assembly of the State of UP against 138 members (34 percent) criminal cases were pending. Out of 138 against 72 members of the Legislative Assembly (18 percent) cases with regard to heinous crimes like murder, kidnapping, extortion, robbery, dacoity, rape and sale of minors are pending. The position of the 16th Legislative Assembly of the State constituted in pursuance of General Elections of 2012, consists of more representatives having criminal antecedents according to a report (Times of India, March 12, 2012); 189 elected candidates have criminal antecedes in comparison to 2007 election and 140 MLAs had criminal antecedents. Out of 189, 98 MLAs were named in serious pending criminal cases whereas in 2007 only 78 MLAs had serious criminal cases. Against one MLA there were 36 criminal cases, out of which 14 cases related to murder.

There appears to be no room for doubt that legislature had failed to check the antecedents in the Legislative Assembly. According to an article published in the Times of India, Sepember 2, 2011, the 15th Lok Sabha is not encouraging; rather, it is a matter of deep concern for the civilised society. As many as 153 (162 according to another report) MPs have a criminal record out of which 74 of them are charged with serious offences like murder, abduction, misappropriation of public funds, etc. Indian writers claim that the people’s representatives seem to have failed to check infiltration of persons having criminal record in the legislative bodies.

The comments aforesaid are from India and have been mentioned as Pakistan is shortly to hold general elections for the National and provincial Assemblies. According to the press reports the Election Commission of Pakistan has had the nomination papers printed. Traditional politicians and major parties have severally criticised the changes made in the form as being too intrusive and personal as per a national daily on March 15, 2013. The Supreme Court of Pakistan has held that the nomination papers were strictly in accordance with the law and the constitution and there should be no objection to it. The Court also held that the president was competent to issue an ordinance on which legislation could be made later. The above submissions have been made for all concerned: Election Commission, the president and the Supreme Court, to bear in mind to adopt the correct course for free and fair elections.

The writer is a Senior Advocate