The Election Commission should be given the responsibility of public oversight and scrutiny of statements filed by candidates. A special nodal cell should be attached to the EC for this purpose. Accountability will then happen.
The enforcement of political standards of transparency and accountability through the requirements of declaration is a means of reminding political functionaries of the rules and obligations they must follow in the course of fulfilling their official duties. There are provisions for disclosures which require the aspirants for elective positions and also the elected functionaries, to provide a benchmark against which later disclosure can be compared to assess whether there has been unexplained enrichment that must be accounted for.
India does not have a legal framework which reinforces the requirement of declaration by candidates regarding their legal, particularly criminal and financial details. There is no ombudsman uniquely poised to review and monitor the compliance of instructions evolved through codes of conduct or rules. The institution of Lokpal that could have performed this function effectively is still a distant dream.
In December 1999, the Association for Democratic Reforms filed a Public Interest Litigation in the Delhi High Court asking for declaration of candidates’ background. The Government, curiously disinterested, appealed before the Supreme Court against such a requirement. However, the Supreme Court passed a historic judgement in May, 2002, and directed the Election Commission to exercise its powers under Article 324 of the Constitution and seek information from the candidates. The Government made its opposition clear by unanimously passing an Act rejecting the court’s orders regarding declaration of criminal antecedents, educational qualifications, assets and liabilities of contesting candidates.
The Supreme Court in its judgement dated March 13, 2003, declared the amended Act as illegal, null and void and restored the May 2, 2002, judgement, declaring that the verdict had attained �?finality’.
The Election Commission of India vide its March 22, 2003, order instructed candidates to provide information about their criminal background, assets, liabilities and educational qualifications through compulsory affidavit to be filed with nomination paper. It also said that the information be shared in the public domain. However, such declarations have remained on paper as there is no framework for scrutinising these details and follow-up action.
Meanwhile, even the settled status regarding EC’s powers under Section 10A of the Representation of People Act, 1951, is being questioned by the Union Government. A three-judge Bench of the Supreme Court in 1999 had confirmed the EC’s powers to disqualify an elected representative in case of wrong submission of expenditure incurred in election. The Government’s view is that the Election Commission has no powers to disqualify a candidate under Section 10A of the RPA for his failure to submit a true rendering of his poll expenditure.
It is imperative that the EC be recognised as the monitoring body for the purpose and have a clear mandate, human resources and punitive powers to evolve an internal system to oversee the validity of the declarations supported by an affidavit by the public functionaries. It should also have powers to check the accuracy of the declarations with an active participation of the Income Tax authorities and police.
In case of elected Members of the Lok Sabha and the Rajya Sabha, the provision for declaration of assets also exists. Rule 3 of the Members of Rajya Sabha (Declaration of Assets and Liabilities) Rule, 2004, requires the Members to provide information on assets and liabilities within 90 days from the date of taking oath. Similar provision exists in the Lok Sabha rules.
But these provisions have remained on paper due to ineffective monitoring and absence of any punitive provisions against non-complying members. The present rules only provide for complaints. The provision under Section 75(A)(5) of the RPA, 1951, allows the Lok Sabha Speaker to direct any willful contravention of the Members of Lok Sabha (Declaration of Assets and Liabilities), Rules, 2004 by an elected member, to be dealt with in the same manner as a breach of privilege of the House.
Public Interest Foundation, a non-Government organisation, through an RTI application, has learned that as on October 16, 2012, eight Lok Sabha and 19 Rajya Sabha Members had not furnished their assets and liabilities within the prescribed period of 90 days. Nearly all the national parties are guilty of non-compliance.
Reportedly, it’s in the absence of a complaint’ that the Rajya Sabha Chairman and the Speaker of the Lok Sabha did not refer the matter to the Committee on Ethics for conducting an inquiry.
Effective monitoring by the Election Commission to assist the Lok Sabha and the Rajya Sabha is the answer. The EC should be given the responsibility of public oversight and scrutiny of statements. A special nodal cell should be attached to the EC for this purpose.
By Nripendra Misra, Director, Public Interest Foundation
(This article was published in The Daily Pioneer on 21st May, 2013)