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Report No. 244

IV. The Need for Reform

A. Free and Fair Elections

"If the people who are elected are capable and men of character and integrity, then they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them. It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas...We can only hope that the country will throw up such men in abundance."

- Dr. Rajendra Prasad,President, Constituent Assembly of India, 26th November, 1949 before putting the motion for passing of the Constitution on the floor.

Democracy as a form of governance was the central plinth of the constitutional scheme envisaged by the framers of the Constitution of India. The ultimate aim, as evidenced in the Constituent Assembly debates and gleaned from their personal writings, was the empowering of each and every Indian citizen to become a stakeholder in the political process.

To this end, the citizen was given the power to elect members of the Parliament and their respective State Legislative Assemblies through the exercise of their vote, a system that the framers believed would ensure that only the most worthy candidates would be elected to posts of influence and authority. Representative government, sourcing its legitimacy from the People, who were the ultimate sovereign, was thus the kernel of the democratic system envisaged by the Constitution. Over time, this has been held to be a part of the 'basic structure' of the Constitution, immune to amendment, with the Supreme Court of India declaring,

"It is beyond the pale of reasonable controversy that if there be any unamendable features of the Constitution on the score that they form a part of the basic structure of Constitution, it is that India is a Sovereign Democratic Republic." Indira Gandhi v. Raj Narain and Others, 1975 Supp SCC 1, 252 para 664.

Thus, inherent in the model of representative government based on popular sovereignty is the commitment to hold regular free and fair elections. The importance of free and fair elections stems from two factors- instrumentally, its central role in selecting the persons who will govern the people, and intrinsically, as being a legitimate expression of popular will. Stressing the importance of free and fair elections in a democratic polity, the Supreme Court held in Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405, 424 at para 23.

"Democracy is government by the people. It is a continual participative operation, not a cataclysmic periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence.

So we have adult franchise and general elections as constitutional compulsions. It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more."

To ensure free and fair elections, and give impetus to the vision of the framers, Parliament enacted The Representation of the People Act, 1951 (hereinafter 'RPA') which inter alia provides qualifications and disqualifications for membership of Parliament and State Legislatures, lays down corrupt practices that are punishable by law, creates other offences in connection with such elections and for the resolution of disputes arising out of or in connection with them.

The underlying rationale for the legislation is thus to create a systemic framework conducive to free and fair elections. Implicit in this framework is the need to prescribe certain qualifications and disqualifications, which are deemed to be respectively essential or unsuitable for holders of public office.

It is a truism that criminal elements of society, i.e. those accused of breaking the laws that their predecessors have given the force of law, and which they are themselves entrusted with enforcing being MPs and MLAs, would be antithetical to the vision of the framers, the nature of Indian democracy and the rule of law. The Supreme Court held as such in K. Prabhakaran v. P Jayarajan, (2005) 1 SCC 754, 780 para 54, where it said,

"Those who break the law should not make the law. Generally speaking the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics and the hous.- a powerful wing of governance. Persons with criminal background do pollute the process of election as they do not have many a holds barred (sic) and have no reservation from indulging into criminality to win success at an election."

Dr. Rajendra Prasad, in his concluding address to the Constituent Assembly categorically said,

"A law giver requires intellectual equipment but even more than that capacity to take a balanced view of things to act independently and above all to be true to those fundamental things of lif.- in one wor.- to have character." 4

4. Volume XI, C.A.D. (November 26th, 1949).

A three Judge Bench of the Supreme Court in Centre for Public Interest Litigation v. Union of India, (2011) 4 SCC 1, (the "CVC case") raised the standards of qualification for appointment to a public office. Holding it imperative for the members to uphold and preserve the integrity of the 'institution', it was laid down that not the desirability of the candidate alone but the "institutional integrity" of the office which should be the reigning consideration in appointments to a public office.

The spirit of this judgment, applicable to all public offices, is that it is not only imperative for the candidate for such office to have the highest standards of integrity, but independently that the integrity of the institution must be preserved. Having criminal elements in politics, no matter whether they are convicted or not, indubitably tarnishes the latter, if not the former as well.



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