Five recent Judgments which will change the
political scene and destiny of India
1. People’s Union for Civil Liberties vs Union of
India
Writ Petition
(Civil) No.161/2004
Judgment dated
27th September 2013
By Supreme
Court of India
In this landmark
judgment, the Supreme Court armed the voters with the right to cast a negative
vote and reject all candidates at the time of voting in case the voter is not
satisfied with any of the candidate. In this context, the Court directed the Election
Commission of India to provide a ‘None of the Above’ (NOTA) button at the end of the panel on the
Electronic Voting Machine (EVM) and in ballot papers.
The court held that the election is a
mechanism, which ultimately represents the
will of the
people. The essence of the
electoral system should be to ensure
freedom of voters
to exercise their free choice. Article 19 guarantees all individuals
the right to speak, criticize, and
disagree on a particular issue. It allows
people to have
diverse views, ideas
and ideologies. Not allowing a person to cast vote negatively
defeats the very freedom of expression and the right
ensured in Article 21 i.e., the
right to liberty. The voters’ participation
in the election
is indeed the participation in the democracy itself.
Non-participation causes frustration and
disinterest, which is not a healthy sign of
a growing democracy
like India.
For democracy to survive,
it is essential that the best available men should
be chosen as
people’s representatives for
proper governance of the country. This can be best achieved through men of high moral and ethical values, who win
the elections on a positive vote. Thus
in a vibrant democracy, the voter
must be given
an opportunity to choose none of the above
(NOTA) button, which
will indeed compel
the political parties to nominate a sound candidate.
Democracy is all about choice. This choice can
be better expressed by giving the voters
an opportunity to verbalize
themselves unreservedly and by imposing least restrictions on their
ability to make such a choice.
By providing NOTA button in
the EVMs, it
will accelerate the
effective political participation in the present state of
democratic system and
the voters in fact will be empowered.
Giving
right to a
voter not to
vote for any
candidate while protecting his
right of secrecy is extremely
important in a
democracy. Such an option gives the voter the right to express
his disapproval with the kind of candidates that are
being put up
by the political
parties. When the political parties will realize that a large
number of people
are expressing their disapproval with the candidates
being put up by them, gradually there will be a systemic
change and the political parties will be
forced to accept the will of the people and field candidates who are
known for their integrity.
In
the existing system a
dissatisfied voter ordinarily does not turn up for voting which in turn
provides a chance
to unscrupulous elements
to impersonate the dissatisfied voter and cast a vote. A provision of
negative voting would
be in the
interest of promoting democracy as it would send clear
signals to political
parties and their candidates as to what the electorate
think about them.
The court noted that even the voting
machines in the Parliament have three Buttons and an option is given to the
MPs to
press the ABSTAIN
button. The court also noted that 13 countries have provided for negative
voting in their electoral systems. By pressing the NOTA button
the voter is in effect saying
that he is abstaining from voting since
he does not find any of the candidates to be worthy
of his vote.
This judgment will go a long way
in cleansing the Indian politics from the evil of criminals and bad
legislators.
2. Resurgence India vs Election Commission of India
Writ Petition
(Civil) No. 121/2008
Judgment dated
13th September 2013
By Supreme
Court of India
In this landmark
verdict, the Supreme Court endorsed “right to know’ of the citizens and held
that the voter has the elementary right to know the full particulars of a
candidate who is to represent him in the parliament or the State Assemblies. The
filing of affidavit by a candidate (disclosing personal details of the
candidate including his assets and civil / criminal cases, if any, pending
against him) at the time of filing his nomination papers is a very important
stage. Earlier, many candidates used to leave certain columns in the affidavit as
blank to conceal their assets or pendency of exact cases against them. The
Court held that if particulars are left blank in the affidavit, it will render
the affidavit nugatory and the candidate’s nomination paper would be rejected. The
court held that if the candidate fails to fill the blank particulars even after
reminder by the Returning Officer, the nomination paper is fit to be rejected.
3. Lily Thomas vs Union of India
Writ Petition
(Civil) No.490/2005
Judgment dated
10th July 2013
By Supreme
Court of India
Section 8(1) & (2) of the Representation of People Act 1951 prescribes that a person shall be
disqualified for being chosen or for being a member of either House of
Parliament or of legislative assembly or legislative council of a State if he
is convicted of an offence punishable under specific laws specified therein. The
disqualification is for a period of 6 years from the date of conviction if he
is sentenced to only the fine. The disqualification is for a further period of
6 years from the date of his release if he is sentenced to imprisonment. Section
8(3) prescribes that if a person is convicted of an offence not covered under
Section 8(1) or 8)2) and is sentenced to imprisonment for two years or above,
then he is disqualified from the date of conviction and shall continue to be
disqualified for a further period of 6 years from the date of his release.
However, Section 8(4) provided a protection to such persons. The protection was
that if a person is member of Parliament (MP) or member of a legislature of a
State (MLA) on the date of his conviction, then the disqualification incurred
in Section 8(1), (2) or (3) shall not take effect unless three months have elapsed
from the date of conviction or until the appeal or revision filed by him in
respect of conviction or sentence is disposed off by the Court if such
appeal/revision is filed within said period of three months.
It is a known
fact that such politicians who were convicted by a court still managed to wriggle
out of the rigours of law by filing an appeal / revision and then ensuring that
it is not decided for years.
The Supreme
court in this judgment has put an end to this practice and quashed Section 8(4)
altogether.
The Supreme
Court observed that the affirmative words used in Articles 102(1)(e) and
191(1)(e) of the Constitution of India confer power on Parliament to make one law laying down the same
disqualifications for a person who is
to be chosen as member of either
House of
Parliament or as a member
of the Legislative Assembly or
Legislative Council of a State and for a person
who is a sitting member of
Parliament or a
House of the
State Legislature. The words in
Articles 101(3)(a) and
190(3)(a) of the Constitution put express limitations on
such powers of the
Parliament to defer the
date on which
the disqualifications would have effect. In view thereof, the
Supreme Court held that Section 8 (4) of
the Representation of People Act 1951
which carves out a saving
in the case of sitting members of
Parliament or State
Legislature from the disqualifications under sub-sections (1), (2) and
(3) of Section 8 of the Act or which
defers the date on which the disqualification will take effect in the case of a sitting member
of Parliament or a State Legislature is
beyond the powers conferred on Parliament by the Constitution. The Court thus
held that Parliament has exceeded its
powers by enacting Section 8 (4)
of the Representation of People Act 1951 and accordingly Section 8 (4) of the
Act was held to be ultra vires the Constitution.
4. Chief Election Commissioner vs Jan Chowkidar
(People’s Watch)
Civil Appeal No.
3040-3041/2004
Judgment dated
10th July 2013
By Supreme
Court of India
In this
judgment, the Supreme Court noted that as per Section 62(5) of the
Representation of People Act 1951, a person who is confined in prison under a
sentence of imprisonment (i.e. who has been convicted by a court after trial) or
who is in lawful custody of police, can not vote at any election and is thus
not an “elector” defined in Section 2(e). As per Section 2(e), an “elector” is
a person whose name is entered in electoral rolls of a constituency and who is
not disqualified from voting. On the same analogy, the Supreme Court upheld the
order of Madras High Court that if a person can not vote and is not an elector,
then such a person can not also contest elections for parliament or state legislative
assemblies as Section 4(d) and Section 5(c) says that if a person is not an ‘elector’,
he is not qualified to be chosen to fill a seat in the House of the People (Lok
Sabha) and Legislative assembly of a State respectively.
The High Court
had held as under :
“A right to
vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from
elections to the Legislature, whether to State Legislature or Parliament, and
all other public elections. The Court has no hesitation in interpreting the
Constitution and the Laws framed under
it, read together, that persons in the lawful
custody of the Police also will
not be voters, in which case,
they will neither be
electors. The Law temporarily takes away
the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is privilege
to vote, which privilege may be taken away.
In that case, the elector would not be qualified, even if his name is on
the electoral rolls. The name is not struck off, but the qualification to be an elector
and the privilege to vote when in the lawful custody of the
police, is taken away.”
The Supreme
Court upheld the High Court’s judgment. This judgment debars the persons who
are either in prison serving a sentence after conviction or who are in lawful
custody of police, from contesting elections of MP or MLA.
5. Subhash Chandra Aggarwal vs Indian National
Congress & others
Judgment dated
3rd June 2013
By Central Information
Commission (Full Bench)
The Full Bench
of the Central Information Commission headed by Mr. Satyendra Mishra, the Chief
Information Commissioner, in this landmark ruling, held that the political
parties which were subject matter of said appeal, viz. Inbdian National
Congress (INC), Bhartiya Janta Party (BJP),
CPI(M), CPI,
NCP and Bahujan Samaj Party (BSP) are public authorities under Section 2(h) of the
Right to Information (RTI) Act. Now people can file RTI applications with these
parties and obtain any information pertaining to their working, like the source
of their finances and the information related to their income and expenses.
This will usher in a new era of transparency. This may put a stop to the
rampant practice of show off and spending thousands of crores in the elections
as the parties and candidates would be under public scrutiny through RTI.
Sunil Goel advocate
B.Sc. L.Lb L.Lm
