Note

Decriminalising Electoral Process
N S Venkataraman

Nandini voice For The Deprived, a Chennai based NGO conducted an All India essay competition in February 2013, on "Does Election Commission have inherent powers to prevent criminals and corrupt from contesting election?

There was good response from all over India and overwhelming number of participants have said that the Election Commission has inherent powers and it should exercise it. In short the Election Commission can do a lot to decriminalise the entire electoral process.

The Chief Election Commissioner himself has said very recently that those against whom criminal and corruption charges have been admitted in the court should be barred from contesting elections but he wanted the governments to do this. Obviously, Election Commission appears to lack the courage of conviction.

Election Commission is a statutory body with the responsibility to ensure free and fair elections, which mean that those accused of criminal activities should not be contesting in the polls. When such a responsibility is given to a statutory body, it should do whatever is needed to ensure fulfilment of this responsibility as a matter of duty to the nation. It has to discover its powers , which are inherent in the constitutional status that has been given to it. Using such inherent powers, Election Commission should straightway issue an order that those against whom corruption and criminal charges have been admitted in the court cannot contest elections.

The positions like Election Commissioners, Chief Vigilance Commissioner are constitutional positions unlike positions such as Cabinet Secretary or Chief Secretary.

When the court would admit a case against a person, it obviously means that the court thinks that there could be a prima facie case and there is possibility of the particular person being a criminal or corrupt. It is a huge risk to allow such persons to contest elections and enter parliament or legislative assemblies. The Election Commission should not expose the country to such a grave risk.

Constitutional authority like Election Commissioners should be able to view matters beyond the existing law in letter, in extraordinary situations when the process of democracy itself is threatened.

While the Election Commissioners have to work as per the provisions of law, in extraordinary conditions , they cannot take refuge under the letter of the law and evade the responsibility to the country. If these would do so, then they would be defeating the very purpose for which the Election Commissioners exist.

Certainly, any move by the Election Commissioners to bar those from contesting, against whom the criminal charges have been admitted in the court, would be challenged in the Supreme Court by the affected people. Let Supreme Court take a view on the matter.

In such an event, the Election Commissioners have to submit to the Supreme Court the reasons and justification for the extraordinary act . It is likely that the court would carefully listen to the views of the Election Commissioners. In recent times, Supreme Court has given several subjective judgements, duly keeping in view the ground realities , the national need, public perspectives and sentiments of the citizens. It is quite likely that Supreme Court would accept the decision of the Election Commissioners under the present extraordinary circumstances.

Frontier
Vol. 45, No. 40, Apr 14- -20, 2013

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