COVER STORY

Ordeal over an ordinance

President A.P.J. Abdul Kalam gives his assent to the Representation of the People (Amendment) Ordinance after the Union Cabinet resubmits it to him without answering any of his queries.

V. VENKATESAN
in New Delhi

THE Representation of the People (Amendment) Ordinance was notified after a reluctant President A.P.J. Abdul Kalam gave his assent to it on August 24, following the Union Cabinet's decision to resubmit it to him without making any changes in its draft as proposed by him. Earlier Kalam had returned the draft ordinance submitted by the Union Cabinet on August 16, suggesting that it did not incorporate the recommendations made by the Supreme Court in its May 2 judgment in Association of Democratic Reforms vs Union of India (Frontline, August 2). Kalam had reportedly noted that the provisions of the ordinance seeking information from candidates "are not wholly in consonance with the prescriptive requirements laid down by the Supreme Court". Of the three areas of information specified by the court - criminal antecedents, financial background, and educational qualifications - the draft ordinance incorporated "substantially" only the points relating to criminal offences, Kalam had pointed out.

The President, it appears, took objection to the fact that in respect of the requirement of declaration of assets and liabilities, the ordinance "stipulated such declaration to be made only by elected candidates and not by contesting candidates". He pointed out that the court's stipulation that the assets of not only the candidate but those of the spouse and dependents should be declared has not been covered in the draft ordinance. He also observed that the ordinance was silent on the court's directive that candidates be made to disclose their educational qualifications.

In the Central Hall of Parliament, a recent gathering of MPs.

In its meeting held to consider Kalam's communication on August 24, the Cabinet decided to request the President to give assent to the ordinance in its existing form under Article 123. The decision received backing from one Opposition party, and this lent legitimacy to the government's claim. Samajwadi Party (S.P.) president Mulayam Singh Yadav was unusually harsh on Kalam, for whose presidential nomination he took pride in lobbying. He described Kalam's reluctance to give assent to the ordinance on which the country's political parties were unanimous as being against the basic spirit of the Constitution. Mulayam Singh went on to suggest that it was against the dignity of the President's office and against the soul of the Constitution for a President to return an ordinance for reconsideration on the basis of incomplete information and on the advice of so-called intellectuals who have no understanding of the practical functioning of Indian politics. The reference was to the delegation of the National Campaign for Electoral Reforms, which called on the President to prevail upon him to refuse assent to the ordinance. The delegation, which included Rajinder Sachar, former Chief Justice of Delhi High Court, Kuldip Nayar, senior journalist and Member of the Rajya Sabha, and L.C. Jain and Jayaprakash Narayan of the Lok Satta Movement, appears to have influenced Kalam's decision. In future, the President better be mindful of the constitutional traditions before embarking on such steps, Mulayam Singh warned.

The government's claim of political consensus on the draft ordinance is based on the outcome of the two all-party meetings held in New Delhi on July 8 and August 2. At the August 2 meeting, the government claimed that there was consensus on two points: one, conviction by a court for a criminal offence alone should be the basis for the disqualification of a candidate, and therefore, the proposed Section 8B of the RPA - providing for disqualification of a candidate, if charged with two heinous offences - should be kept out of the draft Bill. The Ordinance omits this proposal.

Secondly, the government claimed that all parties agreed that candidates should declare their assets and liabilities after their election to the presiding officers of the House to which they are elected. However, this agreement reflects several interpretations of the Supreme Court's judgment and the E.C.'s July 28 order. The Left parties, for instance, questioned the relevance of the view that furnishing information regarding assets and educational qualifications to contest elections or even to cast votes, although they did not dispute the right of the voter to seek this information. As it is easy for a voter to seek information about the educational background of a candidate there seems to be little sense in making this requirement mandatory, as it could be misused against political opponents. Again, it is only a minuscule section of the elected representatives who may not have a certain level of educational qualification. The Supreme Court's directive seems to assume that educational qualifications indicate a candidate's suitability to become a law-maker, and this is open to question and debate.

The court, curiously, did not examine the plausible argument that seeking the details of educational qualifications of candidates would have a bearing on their competence and suitability, and projecting the same to the public could deny a level playing field and threaten the chances of free and fair polls.

Again, the court did not consider the E.C.'s plea that Parliament and State legislatures are seized of this and may enact laws requiring the filing of returns by Ministers and legislators after they take the oath of office.

It is difficult to say that the ordinance would be violative of the Supreme Court's judgment, as Kalam seems to have assumed. The court, in its May 2 judgment, had stated that voters were entitled to know that their representative (it did not appear to have meant candidates) had not misconducted himself/herself in collecting wealth after his/her election (not earlier). In fact, the E.C. had pointed out in its affidavit before the court significant practical problems in requiring candidates to declare their assets (Frontline, August 2).

The Congress(I) revealed that it wanted the court's judgment and the E.C.'s order to be enforced. It said Congress(I) president and Leader of the Opposition Sonia Gandhi had written to Jayaprakash Narayan, who had sought a clarification, that the party was only opposed to the E.C.'s move to empower the returning officers (R.O.s) to reject nominations on the basis of the proposed reforms. But at the two all-party meetings the Congress(I) did not oppose, in principle, the proposal to declare the assets of candidates who got elected. Nor did it question seriously the draft Bill's omission to guarantee the voter's right to know the educational background of the candidates. The party's public opposition to the ordinance, therefore, was intriguing. The Trinamul Congress, which is on the verge of pulling out of the National Democratic Alliance (NDA), has also questioned the Government's claims of consensus over the draft Bill.

The ordeal over the ordinance stems from the government's failure to introduce the Bill and seek a debate on it in the monsoon session of Parliament. The government slated it for introduction in the last week of the session. However, the House could not function during that week because the government's intransigence to yield to the Opposition's demand for the resignation of Petroleum Minister Ram Naik over the petrol pump allotment scandal.

D. Raja, national secretary of the Communist Party of India (CPI), expressed the opinion that there was no need to promulgate the ordinance in haste, overruling the President's objections, as the election process in Jammu and Kashmir had already begun. The CPI agrees with the provisions of the ordinance, but would oppose it if the ordinance empowers the R.O.s to reject nominations arbitrarily. CPI(M) leader Somnath Chatterjee believed that if the President sought certain clarifications on the ordinance, the government should have responded to him, as he had the right to seek information and clarification.

The promulgation of the ordinance has given the misleading impression that political parties of various persuasions have come together to slow down the cleansing of the poll process. The impression may not be valid if one understands the Supreme Court's judgment and the E.C.'s order in the proper perspective.

Was Kalam wrong in returning the draft ordinance and later signing it, after it was resubmitted to him? The proviso introduced into Article 74 (1) by the 44th Amendment Act gives him little scope to act otherwise. Article 74(1) requires the President to act in accordance with the advice tendered to him by the Council of Ministers headed by the Prime Minister. Under the proviso to this Article, "the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration."

Critics may argue that the Union Cabinet, by not responding to any of Kalam's queries, did not actually "reconsider" the ordinance. Since Kalam signed the resubmitted ordinance, it was clear that he did not believe there was any other option available to him. Some people like Jayaprakash Narayan have suggested that he could have referred the matter to the Supreme Court under Article 143 for its advisory opinion. However, he could not have done so without the Cabinet's advice. Alternatively, he could only expect Parliament to debate the merits of the queries he had raised, when it takes up the Bill to replace the ordinance.