There is a widespread concern about the prevalence of corruption in the country. Corruption is happening because many corrupt persons and criminals are contesting the Assembly and Parliament elections and thus becoming people’s representative which they are not rightly so.
It’s because many of them get elected due to their money power and muscle power. It is thus a national need to de criminalise politics, which can happen only by preventing corrupt persons and criminals from entering Parliament and Assemblies.
Many look at the Election Commission to exercise its power under Article 324 of the constitution to prevent criminals from entering politics. 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.
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.
So the 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 can ensure that de criminalization of politics as it 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).
Election Commission should clearly declare that with those accused of crime and corruption contesting, the elections cannot be free and fair and therefore those persons should be barred from contesting election, against whom corruption and criminal charges have been admitted in the court.
The question is when the Election Commission would assert itself and take a firm stand is something everyone is taking about. The Election Commission these days 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 is 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 silent. This weak approach of the Election Commission has really contributed to emboldening the criminals and corrupt persons.
There is every reason for the Election Commission to act firmly, considering the fact that fair elections are 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.
Further, 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.
Now comes the fundamental question, how will the judiciary react, in 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?
The constitution is an Organic/Living document; therefore, it should be liberally interpreted, wherein it is to address the needs of the future societies. In India, just as democracy is evolving so is judiciary.
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. So, whatever judgement Supreme Court has given earlier with regard to powers of Election Commission need not be considered as sacrosanct, since judiciary itself has revised several of its verdicts in the past.
In such circumstances, any move of the Election Commission to bar persons from contesting, 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.
Election Commission as a constitutional body is entitled to take its decision based on its conscience and wisdom, particularly since it is the conscience keeper of the nation akin to the judiciary.
In the past, Election Commission has sent number of recommendations for electoral reforms to the government 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. This is particularly so in the present conditions, where public concern and anger about corruption in national life is widespread. It should move beyond this to fulfil its duty and responsibility.
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.
Syed Ali Mujtaba is a Journalist based in Chennai. He can be contacted at email@example.com