Good intentions are not enough

The provocation for recalling Frankfurter is the ongoing debate over the voter8217;s 8216;right to information8217;. This felicitous expression raised to the status of a legal formula has been used by different people to mean different things. Last year, the Delhi high court invoked the voter8217;s right to information to give an omnibus mandate to the Election Commission EC. The high court cast a duty on the EC to secure to the voters 8216;8216;facts giving insight to the candidate8217;s competence, capacity and suitability for acting as a parliamentarian or legislator8217;8217;. Further, it directed the Commission to provide to the voters the information 8216;8216;necessary for judging the capacity and capability of the political party8217;8217; as well. In other words, to fulfil the voter8217;s right to information, the high court ordered the EC to enter the political thicket and say everything short of telling him which party he should vote.

Fortunately, the Commission8217;s perception of the voter8217;s right to information does not entail such a radical alteration of its own role. On the contrary, it warned the Supreme Court that the high court8217;s direction was 8216;8216;totally undemocratic and dangerous to the survival of democracy8217;8217;. The Commission said the slightest attempt on its part to sit in judgement over the capability of a candidate or a political party will 8216;8216;destroy8217;8217; the faith invested in it as a repository of free and fair elections and 8216;8216;put a question mark on the very legitimacy of the electoral process8217;8217;. Thanks to this grim prognosis, the Supreme Court revised the high court verdict and confined the scope of the voter8217;s right to information to the candidate8217;s criminal antecedents, if any, and his financial and educational background.

But then even this relatively limited information proposed to be collected from the candidate provoked much controversy at the all-party meeting on July 8. Political parties have a much narrower view than the apex court of what should be covered by the voter8217;s right to information. Politicians, of course, have a vested interest in disclosing little to the voter. That does not however detract from the validity of some of their objections. Take, for instance, their objection to the direction that the candidate should at the time of filing his nomination disclose all the assets 8212; jewellery, cars, LIC policies, etc 8212; owned by him, his wife and his dependents. Why should all this private information about the candidate and his family be made public and offered as a basis for evaluating his candidature? Does it also not give an unfair advantage to a candidate who holds most of his assets through benami means or has unaccounted cash stacked all over the place? Why put the candidate at the mercy of a chartered accountant to file his election nomination? And how will the returning officer be able to check the veracity of all those details in the one day that is statutorily provided to him for scrutinising nominations? If the idea is to prevent the candidate from abusing his membership of the House to feather his nest, does it not make more sense to have him disclose his assets only when he wins the election, that too only to the presiding officer of the House concerned? That would also be consistent with the already existing practice among Central ministers of disclosing their assets every year to the prime minister.

The failure of the Supreme Court to take such issues into account has allowed political parties to pick holes in its scheme of electoral reforms. The court can, nevertheless, claim credit for giving a jolt to the political establishment and forcing it to propose a legislation to combat criminalisation of politics and to promote transparency in the electoral process. This despite the disclaimer in the judgment that 8216;8216;it is not possible for this court to give any directions for amending the Act or the statutory Rules8217;8217;. The EC too did its bit to push the government to act. But, sadly, it has thrown itself open to the charge of overstepping the Supreme Court judgement. While the court only directed the Commission to demand more disclosures from the candidate, the Commission went further and empowered the returning officer to reject nominations of those who failed to provide the necessary information or provided false or incomplete information. The order issued by the Election Commission on June 28 is ironical considering the remarkable role it played earlier before the apex court to temper the excesses of the high court judgment. Expecting the returning officer to verify the disclosures of all the candidates in one day flat and empowering him to accept or reject nominations on that basis, is clearly as 8216;8216;undemocratic8217;8217; as the high court8217;s attempt to make the Commission sit in judgement on the capability of political parties.