Strategy for better governance

OUR DEMOCRACY is based on corruption. Democracy requires political parties and political parties need funds. All our political parties collect funds in cash which is unaccounted money. Black money is the oxygen for corruption. Corruption is the oxygen for black money. Therefore, our entire democracy is based on corruption. Having been the Central Vigilance Commissioner for four years and having focussed on the issue of corruption as part of my job, I realise the truth of the Tamil proverb that you can wake up a person who is sleeping but not one who is pretending to be asleep. All our political parties are very vocal about the need for fighting corruption and also providing good governance but when it comes to actual performance what we have is a highly misgoverned and corrupt country.

Is there a way out? The recent judgment of the Supreme Court striking down as unconstitutional the controversial electoral reforms law and restoring the earlier directive, making it mandatory for candidates to declare their criminal antecedents if any, assets and liabilities and educational qualifications while filing nomination, offers a ray of hope.

Criminalisation of politics is an important aspect of misgovernance of our country. Two professors from the Indian Institute of Management, Ahmedabad, approached the Delhi High Court through a public interest litigation (PIL) praying that the candidates should declare their criminal record, if any, their educational qualifications and financial assets at the time of filing nomination. The Delhi High Court agreed with the petitioners and passed an order accordingly. The Government of India challenged it in the Supreme Court. On May 2, 2002, the Supreme Court agreed with the Delhi High Court's judgment. The Election Commission in pursuance of the Supreme Court order issued guidelines.

What happened next was very revealing. The entire political class covering the whole spectrum of parties rallied together in a rare demonstration of consensus to nullify effectively the judgment and passed an electoral reform law first in the form of an ordinance and later in the form of an Act. This Act laid down that the candidates need not declare their educational qualifications or financial assets; only the victorious candidates need do so. The candidates, however, have to declare in an affidavit (i) whether he/she has been accused of any offence, punishable with imprisonment for two years and more in a pending case framed by a court of competent jurisdiction and (ii) whether he/she had been convicted of an offence with imprisonment of one year or more.

This was a blatant attempt to neutralise to the maximum extent possible the implementation of the Supreme Court's directive. The intention of the political class was spelt out clearly in Section 33 B of the Representation of the People Act which says "notwithstanding anything contained in any judgment, decree or order of any court or order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information in respect of the election which is not required to be disclosed or furnished by this Act". This was challenged in the Supreme Court. The Supreme Court on March 13, 2003, held that the Act was unconstitutional. The Court termed the enactment a half-hearted attempt to fight the use of money and muscle power in elections and said its order of May 2, 2002, must be implemented in totality. The Supreme Court judgment has created a situation which will be welcomed by all patriotic citizens who yearn for better governance in our country and who wish to see that lawbreakers do not become law-makers in our country.

The political class will not yield without a fight but the indications are that ultimately the eminently fair Supreme Court judgment will prevail and we would have taken the first step towards better governance through decriminalisation of our politics. An attempt will be made by the political parties to project the entire issue as a clash between two of the three great pillars of our Constitution, namely, the Legislature and the Judiciary. Fortunately, it has been long established that while the Legislature has full powers for making laws, it cannot enact a law that is against the basic structure of the Constitution. The Supreme Court in its judgment has focussed on the fundamental right of Indian citizens to freedom of speech under Article 19, which includes the right to information about the prospective candidate in elections.

It is not the first time that we are witnessing an attempt by the powers that be to provide a legal cover for misgovernance. The Central Vigilance Commission (CVC) Bill has been passed in the Lok Sabha and is yet to be passed in the Rajya Sabha. It contains a vicious clause, which was twice struck down by the Supreme Court as being unconstitutional. This is the infamous "single directive" under which even criminal investigation cannot be launched against officers of the level of Joint Secretaries and above without the specific permission of the Government of India. It is true that so far as the prosecution of all public servants is concerned under Section 197 of the Cr.PC, permission of the appropriate authority is required. This is a long-standing legal provision to ensure that public servants who are discharging their duties in good faith are not subjected to litigation unnecessarily. Investigation of a crime is the first stage before one can come to a conclusion whether a prosecution is called for.

If the investigation process itself is checked or curtailed to that extent those who indulge in crime get double protection. The Government tried to smuggle in this mischievous condition, when on August 25, 1998, the CVC Ordinance was passed. This was challenged in the Supreme Court and the Government gracefully withdrew this clause. But this clause is again introduced in the CVC Bill. The question is whether this will stand the test of legal scrutiny. I am sure the moment this clause is challenged in a court of law, the court is bound to strike it down. The protection sought to be given to corrupt public servants will be nullified.

These two instances of trying to clothe misgovernance in legal cover highlight one basic fact. As corruption and misgovernance confer more power and strength on those who rule we cannot expect them on their own to change for the better. The change will have to come from an external force, which does not give any option to the powers that be, but to comply.

Political will in our country is exercised only under two conditions. One, when there is a TINA (there is no alternative) factor and two, when there is a vote bank advantage. The TINA factor can be invoked by citizens through public interest litigation. Under our Constitution, the Judiciary interprets the law and its directives have to be carried out. This can be exploited by all concerned citizens through the PIL route. In these two cases, which are in interesting stages of development, I am sure that ultimately the TINA factor may prevail and the citizens of India may have found an effective strategy to build a better-governed country.

(The writer is a former Central Vigilance Commissioner.)

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