Association for Democratic Reforms v/s Union of India

Author: Hiteishi Sharma, KG Shah Law School / SNDT University

ABSTRACT / HEADNOTE

“If the people who are elected are capable and men of character and integrity….. If they are lacking in these, the Constitution cannot help the country ….. , and India needs today nothing more than a set of honest men …[1]“

Yes, the founding fathers of the Indian Constitution and the initial Members of Parliament did aim to establish a strong and just democratic system. However, the Indian citizens were not made aware of the background of the candidates contesting for elections, which stands to be their fundamental right by Article 19(1)(a)[2]. This contributed to the Indian democracy seeing a steady increase in the level of criminalization creeping into the politics. This “criminalization of politics”, over time, limited the choice of voters to elect a suitable candidate, affected good governance, affected the integrity of public servants, and introduced a culture of violence in society.

Today, the public faith in the efficacy of India’s democratic process has diminished, and accepted criminalization in politics as an unavoidable circumstance. This issue is further aggravated by the inadequacy of legal frameworks to prohibit convicted criminals from engaging in elections. To regain the trust of the citizens, it is crucial to strengthen the existing laws, ensure stricter enforcement, promote transparency in political funding and the decision-making processes, and promote accountability among political leaders.

The Association for Democratic Reforms highlights the need for transparency in an election candidate’s criminal background, making this information accessible to the public, print, and electronic media to facilitate a more informed electorate and potentially encourage cleaner politics.

Keywords: Election Commission, democratic reforms, Constitution, information, criminal, candidate.

CASE DETAILS

Judgement Cause TitleAssociation for Democratic Reforms V/S Union of India
Case NumberCivil appeal 880 of 2017
Judgement Date2nd November, 2002
CourtDelhi High Court
QuorumAnil Dev Singh
AuthorAnil Dev Singh
CitationAIR 2001 DELHI 126, 2000 (57) DRJ 82, AIR 2001 DELHI 126, (2001) 1 PUN LR 54, (2001) 57 DRJ 82, (2001) 99 DLT 291
Legal Provisions InvolvedArticle19(1)(a) of the Indian Constitution, Article 324 of the Indian Constitution. Section 4A of Representation of the People Act, 1951.

INTRODUCTION AND BACKGROUND OF JUDGEMENT

Due to high costs associated with contesting elections, political powers looked up to criminals for funding. Subsequently, the criminal themselves joined the election fray and often even got elected. This situation not only undermined the democratic values but also threatened the well-being of society – the rapid spread and growth of criminalization of politics resulted in:

  • Criminal gangs, drug Mafias, smuggling groups, and other illicit entities establishing a vast network of connections with local government officials, politicians, and strategically placed individuals in the non-government sector. This significantly jeopardized the smooth functioning of the administration and the safety of life and property of the common man
  • The big smuggling syndicates, with their extensive international connections, permeating and contaminating numerous economic and financial undertakings, inflicting severe harm to the economic fabric of the nation.
  • Narcoterrorism networks emerging in regions like the north-western states of India
  • The Bombay bomb blast case and the subsequent communal riots in Surat and Ahmedabad have highlighted the concerning exploitation of India’s underworld by foreign entities, such as Pakistan’s ISI and international networks. These incidents have brought to light the intricate connections between the underworld and various sectors of Indian society

Despite the valid concerns raised by government bodies and influential individuals, successive governments have not taken any significant action. Therefore, an NGO named Association for Democratic Reforms filed a petition in the Delhi High Court to compel implementation of certain recommendations regarding how to make the electoral process in India more fair, transparent and equitable.

FACTS OF THE CASE

  • The Vohra Committee Report[3] studied the problem of the nexus among criminals, politicians and bureaucrats in India..
  • The Parliament had shown a great deal of concern about the increasing criminalization of politics (special session, August, 1997)
  • The Election Commission, issued an order under Article 324 of the Constitution, that all candidates for elections to Parliament and State Legislatures to file affidavits about their convictions in cases covered by Section 8 of the Representation of the People Act, 1951. It also suggested to disqualify persons from standing in the elections charged with serious offences.
  • The Commission illustrated the case of a rapist, convicted and sentenced to ten years imprisonment, being disqualified only for six years and being free to contest elections, even while in prison serving the last four years of his sentence[4].
  • In the 1957 general elections, repoll was ordered only in 65 booths, in 1989 it was ordered in 1670 booths2.
  • In 1991, Bihar alone repoll was ordered in 1046 booths and in 2173 booths in 19962.
  • In 1984, Lok Sabha elections 33 persons were killed – this figure rose to 130 in 1989 and 198 for the 1991 Lok Sabha Poll.[5]
  • A pre-assembly election report (1996), prepared by a top police official, identified 136 gangs of criminals, 55 of which were patronized by political parties. Almost 500 of the candidates who contested had criminal backgrounds.
  • The Election Commission revealed that in August 1997, 40 sitting MPS and 700 MLA’s had criminal records.
  • The Supreme Court in Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil, has also lamented the criminalization of politics which is the result of growing influence of money power during elections.

LEGAL ISSUES RAISED

  1. Whether Election Commission is empowered to issue directions as ordered by the High Court?
    1. Whether the right to information of electoral candidates is under fundamental right to freedom of expression or not?

PETITIONER/ APPELLANT’S ARGUMENTS

  1. The counsels for Petitioner seek a direction to insert a new Section 4-A Representation of the People Act, 1951[6], as the Election Commission cites it is not empowered to do so.
  2. The Petitioner submitted that inter alia seeks an informed right of voting for the voters of this country based on information and knowledge about candidates seeking election to Parliament and in order to direct respondent No. 2 to put together the information on criminality of all the candidates for an election and make this information available to public and print and electronic media for wide dissemination.

RESPONDENT’S ARGUMENTS

  1. The counsels for Respondent have expressed their inability to make the suggested amendments at this time and can neither commit to a specific timeline for doing so. However, they assure that they will work towards introducing a comprehensive Electoral Reforms Bill.
    1. Electoral Reforms acknowledges receiving a message from the Ministry of Home Affairs concerning the necessity for candidates to disclose their assets, as well as those of their immediate family members..

RELATED LEGAL PROVISIONS

Constitution of India.

  • Article 19(1)(a): “Right to freedom of speech and expression”. It comprehends right to know- right to receive information regarding matters of public concern.
    • Article 324: “Superintendence, direction and control of elections to be vested in an Election Commission”

Representation of the People Act,1951

  • Section 4-A.: A person shall not be qualified to file his nomination forcontesting any election for a seat in the House of the People, the Council of States, Legislative Assembly or Legislative Council of a State unless he or she files –

(a) a declaration of all his assets (movable/immovable) possessed by him/her, his/ her spouse and dependent relations, duly supported by an affidavit, and

(b) a declaration as to whether any charge in respect of any offence referred to in Section 88 has been framed against him by any Criminal Court.

JUDGEMENT (RATIO DECIDENDI)

The High Court mandated the Election Commission to obtain and disclose to the public background information relating to candidates running for office, including information on their assets, criminal records, and educational background.

CONCLUSION & COMMENTS

For a healthy democracy, it is essential that the voter is knowledgeable about the background of the candidates. so that he can make an informed decision in casting his vote.

REFERENCES

  1. Important Cases Referred

Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil.

Indian Express Newspapers (Bombay) Private Ltd. v. Union of India.

  • Important Statutes Referred

Constitution of India,

Book by S.S Gill on “Pathology of Corruption”

Representation of the People Act, 1951.

[1]India’s first President, Dr. Rajendra Prasad’s remark in his valedictory address to the Constituent Assembly

[2]Right to receive information regarding matters of public concern. [Article 19(1)(a): “Right to freedom of speech and expression”.]

[3] The Vohra Committee Report was submitted by the former Indian Home Secretary, N. N. Vohra, in October 1993

[4] letter written by the Chief Election Commissioner to the then Prime Minister in Sept. 1997

[5] Book titled “The Pathology of Corruption”, S.S. Gill

[6] In consonance with the recommendations of the Law Commission contained in its 170th Report