I'll Hide, You Seek

Last year they were together. Almost the entire Indian political class had taken a unanimous stand opposing the EC's directive on electoral reforms. But it has taken less than a year for fissures to show up in this 'political consensus' on a crucial public issue.

In July 2002, an all-party meet endorsed the Union government's decision to issue an ordinance diluting an EC notification, which directed candidates to declare their assets and criminal background if they had one. Months later, two major political parties—the bjp and Congress—appear to be heading towards a showdown over the same issue, following the Supreme Court ruling last fortnight quashing the amended electoral law. The court has held that withholding of any information by the candidates at the time of filing nominations is not permissible.

The court's ruling has divided the political class. While the bjp has strong reservations about candidates revealing their criminal antecedents and financial assets, the Congress has welcomed the ruling. The upshot: when Parliament reconvenes on April 7 there could be a glaring lack of consensus, apart from a showdown between the ruling party and the judiciary.

The Congress is clear that it stands with the apex court. Says general secretary Oscar Fernandes: "We welcome the court order. It more or less endorses what our party has been saying. We have maintained that there should be total transparency while declaring assets and criminal antecedents." Congress leaders point out that over the past year the party has 'rethought' its position. Congress legal eagle Abhishek Singhvi adds another rider. According to him, at the last all-party meeting held in July 2002, the Congress had made this written submission but the government had deliberately omitted it— making it appear that there was complete unanimity, which is misleading.

Says spokesman Jaipal Reddy: "We've already moved an amendment asking candidates to file affidavits regarding their criminal record and assets." According to insiders, the party will go along with the populist anti-politician syndrome. "Popular sentiment in our society is against the political class. We don't want to be seen as going against the current," says a cwc member.

The bjp, though, is not amused. Says bjp president Venkaiah Naidu: "The Congress is speaking in different voices. Is it the job of Parliament or the courts to legislate? The MPs will make law. That is the constitutional position. Where is the question of differing from it? We are going to convene an all-party meeting where a consensus will be evolved."

Is consensus on this tricky issue possible? Congress leaders are undecided. Says Singhvi: "There is uncertainty on whether we'll attend the all-party meeting." He argues the issues—particularly the one dealing with criminal antecedents—are beyond debate. "Our position remains the same. Neither a conviction nor an fir may be necessary to determine the criminal antecedents of a candidate. When a judge draws up charges on the basis of a chargesheet filed by a prosecuting agency, it's fair to assume that criminal charges have been proved. The court judgement vindicates the Congress position." Says Congress MP Ramesh Chennithala: "If the bjp doesn't agree with the court verdict, that is its problem, not ours. Let them settle it with whoever they wish to."

Apart from the uncomfortable facts linked to criminal antecedents, a phenomenon rampant in Indian power politics, politicians are also concerned about the declaration of assets. It's well known that many of them have benami properties and other dubious assets and not disclosing them has become de rigueur. So, the danger of being exposed by rivals from within and outside the party is a source of serious concern for them.Some MPs feel that should there be any anomaly in the assets disclosed, the candidate could be disqualified. The only recourse then will be to approach the courts where cases could drag on for years, while reputations would be at stake in the public realm.

The only point of convergence on the electoral reforms is linked to the proposed authority of the returning officer, which both the bjp and Congress are opposing. Congress' Pranab Mukherjee explains: "We'll disclose the assets of only the winning candidates and only before the presiding officer of the House." Union law minister Arun Jaitley reportedly asked: should candidates disclose even their electricity and telephone dues and let an ordinary revenue official have the right to disqualify their nomination?

Avers Venkaiah Naidu: "Once a returning officer declares a result, that is final. The counting has no meaning once the results are declared. If you don't agree with it, you have the right to approach the courts. But you can't get instant justice even if you have been unfairly declared defeated." The Congress shares his fears.

But as of now, the court order stands. The EC is reportedly considering issuing revised guidelines.

Meanwhile, the current court order has rattled other political parties. Their responses are, at best, ambivalent. The Left positioning on the issue is a case in point. The CPI(M) general secretary Harkishen Singh Surjeet thinks the court order doesn't differentiate between political leaders and outright criminals. Says he: "I could go to jail 10 times for organising a political agitation." In contrast, CPI's A.B. Bardhan wants political parties to accept the court order. Says Bardhan: "It's not a question of judiciary versus the legislature. The issue is about upholding the voter's rights. He has a right to know who's contesting."

Says BJP Rajya Sabha member Mukhtar Abbas Naqvi: "The voters have the right to know, but the right to legislate lies with Parliament and not the court." He's hinting at a full-blown tiff between the legislature and the judiciary.

In fact, the government has the option of moving a constitutional amendment that can overturn the EC directive. But given the complete lack of consensus among and within political formations, this move could badly rebound on the government should it try to push such an amendment through.

The shifting sands of politicking apart, the malaise in Indian politics is much too entrenched. Analysts, media experts and independent groups have for long expressed concern at the growing criminalisation and cartelisation of politics. As many as 50 MPs reportedly have criminal charges against them. The situation in some assemblies is worse and seems irreversible with history-sheeters ruling the roost. It's not ironical that the political class has consistently opposed any reform in this sensitive area. The N.N. Vohra Committee report of the early '90s was incisive about the criminal-politician nexus. But, despite the sanctimoniousness, not one word of it was translated into reality.

In the current context, the ball for sweeping electoral reforms was set rolling when the Law Commission in its 170th report of June 1999 recommended that there should be compulsory disclosure of criminal antecedents and financial aspects such as assets and liabilities of those aspiring to contest. In 1999, the Association of Democratic Reforms had moved the Delhi High Court seeking a directive to the EC on similar grounds. In 2000, the court directed the EC to issue notifications on financial assets and criminal antecedents, if any, of candidates.

The constitutional review committee set up by the nda government in March 2001 shared this view. It said "all candidates should be required under law to declare their assets and liabilities by affidavit and details given by them should be made public".In May the same year, the Supreme Court, in a landmark judgement, upheld the Delhi High Court's view. But then the June 2002 all-party meeting, which 'unanimously' rejected the EC notification, was convened. In August 2002, the nda government nullified the EC notification by promulgating an ordinance that required limited disclosure regarding criminal antecedents of candidates, but inserted a clause according to which no further information would be required, 'notwithstanding' anything contained in any judgement, decree or order of any court or the EC.

The latest apex court ruling comes as a response to a petition filed against this twisted poll 'reform'. The key question now is: will the nda government move a special leave petition against the directives of the apex court itself? More crucially, does the Indian citizen deserve the right to know about the assets and antecedents of the candidates in fray?