Delhi election watch

K.C. SIVARAMAKRISHNAN

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THE recently concluded elections to the Delhi, Madhya Pradesh, Chhattisgarh, Rajasthan and Mizoram assemblies were the first to be held after the candidate disclosure system came into existence. Briefly stated, the system requires that persons contesting Parliament and assembly elections should swear an affidavit along with nomination papers, disclosing their assets and liabilities as also information about conviction for crimes pending against them in criminal cases.

Disqualification of candidates on conviction for certain offences is not new in our country. The Representation of People’s Act, 1951, listed several offences under the Indian Penal Code as well as other laws like the Protection of Civil Rights Act, 1955, Foreign Exchange Regulation Act of 1973, the Narcotic Drugs Act of 1985 or the Religious Institutions (Prevention of Misuse) Act, 1988. Subsequently, offences under the Sati Prevention Act, the Prevention of Corruption Act and so on were also added. In many cases whether the sentence is only a fine or imprisonment, disqualification was for six years from the date of conviction.

Apart from these listed offences, the RP Act also provided that any person convicted for any offence and sentenced to imprisonment for two years or more stood disqualified. In normal course, all these provisions should have been adequate to deter criminals from contesting elections. Yet, the dynamics of the election process are such as to substantially sideline the RP Act. The selection of candidates and the filing of nominations have been controlled by cliques and kept outside public view or scrutiny. As a result of the Supreme Court’s historic judgement of March 2003, the change now is that at least part of the nomination process is accessible to the public.

But even this limited step forward has become possible only by the determined struggle of civil society groups. The filing of a petition by the Association for Democratic Reforms in 1999 before the Delhi High Court, the court directing the Election Commission to set up a system for disclosure, the appeal of the government against this judgement, the Supreme Court upholding the judgement, and the government’s determined effort to nullify that judgement by resorting to an ordinance are now part of legal history. The alliance of civil society groups under the banner of the National Campaign for Electoral Reforms and its successful challenge to the ordinance which was eventually struck down by the Supreme Court in March 2003 testifies to what concerted citizen action can accomplish.

 

 

Most citizens in the country take as granted that the right to vote is a basic feature of our democratic system. Yet, in the hearings before the Supreme Court the government argued that the right to vote was not a fundamental but only a statutory right, subject to statutory restrictions and that it was the prerogative of the Parliament to lay down those restrictions. Against this, the petitioners argued that the exercise of vote was part of a citizen’s fundamental right of expression and the information required for the conscious exercise of that right could not be denied.

In its judgement the Supreme Court maintained a distinction between the ‘right to vote’ and ‘freedom of voting’ and held that voting was an integral part of a citizen’s right to expression and, for its proper exercise, the citizen enjoys the right to information as part of Article 19(1) (a). In the event the Supreme Court struck down the impugned ordinance and directed the Election Commission to take necessary steps for obtaining information from the candidates.

 

 

Between April and September 2003 the organisations which had participated in the public interest litigation met to decide on a programme to inform the public about the Supreme Court judgement as also mobilize public opinion for effective implementation of the disclosure regime. In June 2003, it was decided to set up DEW (Delhi Election Watch) as a coalition of 22 civil society organisations in Delhi. The experience of Gujarat, where during the assembly elections of 2002, an Election Watch had been set up, as well as the initiative of Lok Satta, Hyderabad, in regard to assembly elections in Andhra held earlier served as inspiration.

In September, DEW adopted a broad programme of activities including assistance in updating electoral rolls, organizing campaigns for increasing voter turnout, and ascertaining the background and information about candidates. It also set up a screening committee comprising of jurists, lawyers, retired civil servants, police officials and other leading citizens to systematically examine candidate antecedents and disseminate the findings.

A peculiar feature of the election process is that though the media is replete with accounts about likely candidates for weeks before the elections, there is nothing certain until the formal process of nomination commences. DEW attempted to intervene at the pre-nomination stage. One was to invite members of the public through advertisements in the press and messages on television to share information about prospective candidates. Another was to write to all sitting MLAs, assuming they would be contesting again, to inform DEW about their financial and criminal antecedents, if any. We also wrote to all recognised political parties about the likely candidates requesting information about their antecedents. None of these attempts elicited much response.

 

 

The next stage was the nomination period from 10 to 14 November. The Supreme Court’s orders stipulated that copies of the sworn affidavits by the candidates should be made available ‘liberally and freely to other candidates, to the representatives of the media etc.’ Though civil society organisations are not specifically mentioned in this order, the Election Commission clarified that the word ‘etc.’ included such organisations as well. This was an important interpretation. It may be recalled that during the Gujarat assembly elections some form of disclosure, limited to criminal antecedents, had already come into existence. Yet, Gujarat Election Watch found it difficult to obtain copies of the affidavits and succeeded only after repeated interventions by the Election Commission.

In the case of Delhi, the Election Commission issued a circular stating that ‘NGOs like DEW and such other serious organisations may also be supplied with copies of the affidavits and counter affidavits free of cost.’ This was a major step. But even thereafter, obtaining the copies was not easy, partly because the filing of nominations was bunched on the last two days. Out of over 1000 nominations, nearly 700 were filed on the last day, i.e. 14 November. The final list of valid nominations (817) became available only on 17 November, the last day for withdrawal of nominations. Most returning officers and district election officers were positive and helpful to DEW though technical problems in obtaining photocopies persisted. In the end DEW collected 644 affidavits representing about 80% of the total number of valid nominations. The data was tabulated and analysed by the Centre for the Study of Developing Societies on behalf of DEW.

 

 

What did the analysis reveal? In the 644 affidavits analysed, only 78 candidates had some record of criminal cases against them. Of these, five had been convicted, four discharged and in the balance 69 some cases were pending. Most cases related to offences against public tranquillity such as unlawful assembly, rioting and so on. Such cases are usually registered arising from political demonstrations of one kind or another. Only four cases related to murder, death by negligence and outraging the modesty of a woman. 42 out of the total of 69 candidates, belonged to various political parties while the rest were independents. Of these 42, 12 from the Congress and 10 from the BJP did win the election. Here again it was only in one case that the offence related to death by negligence. It would, therefore, appear that the pendency of the cases did not influence the outcome of elections. However, it is likely that the requirement of disclosure itself might have restrained political parties in nominating candidates with a ‘criminal record’ or those charged with serious crimes. It can therefore be said that at least in the Delhi election, the phenomenon of criminals as candidates did not loom large.

Overall the 644 candidates studied appeared to be of modest means. As many as 474 claimed that their movable assets were less than five lakh rupees while 58 had more than 20 lakh. Regarding immovable assets, 392 claimed their assets were less than five lakh rupees, while 142 admitted an asset base of more than 20 lakhs. An aggregation of both movable and immovable assets and listing the candidates as crorepatis or lakhpatis may be more intelligible to the public. Those with more than Rs 50 lakh were 53 while 49 had more than a crore. Of these, 32 were from the Congress and the BJP. Eighteen of the crorepatis won – three from BJP and 15 from Congress. At the other end of the spectrum, there were also some poor candidates in the fray, whose assets were less than a few thousand rupees. Obviously they relied only on faith to win the contest. There is no law in India barring the super rich or the struggling poor from contesting elections. Yet the disclosures of the candidates and the outcome of the elections point strongly to the role of money power.

Apart from information about criminal cases and finances, DEW also compiled data about educational qualifications. Of the 644 cases studied as many as 175 had postgraduate or professional degrees in engineering, medicine, chartered accountancy etc., while another 237 were graduates. Together this works out to 63%, indicating that a majority of candidates were not lacking in formal educational qualifications.

 

 

A series of tables summarizing information for Delhi state as a whole as well as constituency-wise information were prepared and released to the media a week before the elections. Coverage in the media was extensive. Did the information compiled and disseminated by DEW have any impact on the outcome of the elections? It must be emphasized that DEW, a coalition of civil society organisations, had no political agenda of its own and was not interested in influencing the outcome of the elections for or against any political party. Its main purpose was to help better inform voters about the candidates.

Dissemination of information was therefore very important. While the party-wise tables for Delhi as a whole did receive significant attention from the media and various organisations, at the constituency level itself there was little dissemination even though data was available. Some newspapers in Hindi, Punjabi or Urdu did collect copies of the report containing the detailed information for all the constituencies. Reportedly a few even carried the information in their area or locality based editions. However, one of the stated objectives of DEW to disseminate information to the voters at the constituency-level remained largely unfulfilled.

 

 

A small effort was made to translate the constituency-wise information in Hindi in respect of five constituencies, i.e. Trinagar, Nangloi Jat, Mahipalpur, Tughlakabad and Patparganj where middle and lower income families were predominant. Volunteers were engaged to distribute copies of these data sheets to all the candidates in the constituency whose affidavits had been studied. Copies were also given to Resident Welfare Associations in the area. Our feedback from this small experiment is that while the candidates, as well as RWAs, were interested in the information provided, they did not have the time to further disseminate it among the voters. In future, a conscious effort should be made to provide constituency-wise information coterminous with state level information. This will of course require translation in locally used languages, advance arrangements with RWAs for distribution, as also deployment of volunteers to handle the work.

We used the mobile phone network to enable the voter to access constituency-wise or candidate-wise information with help from the Hutch and Tata Indicom networks. A total of 2864 subscribers reportedly used these facilities.

One of DEW’s programmes was to hold constituency-wise meetings through local organisations to which candidates from different parties would be invited to respond to voter’s questions. This did not work out mainly because of the reluctance of local organisations in undertaking this task, the expenses involved and the generally poor response from the candidates themselves to participate in such neutral platforms. In one meeting held at the constituency level (Saket) by Abhilasha, a local organization, with the help of People’s Action, the information pertaining to the candidates participating in the meeting was read out. Parivartan, a partner organisation of DEW, organized a similar meeting in the Seemapuri constituency. It may be noted that the victory margin in Saket was only 121 votes. Citizen organized platforms are a potentially strong instrument to ensure candidate responsiveness.

 

 

Though there were a large number of independents in the fray, the Delhi elections were a straightforward contest between the BJP and Congress. This did help in eliminating the large number of independents of whom only one candidate won. Other parties such as the BSP, CPI, CPM, NCP and JD (S) fielded a few hundred candidates but only two, one each from the NCP and JD (S) were successful. The straight contest also helped the winning candidates obtain credible margins. Across the country and over the decades, Parliament and assembly elections have been characterized by candidates winning by a minority of the votes cast. In the Delhi elections, 42 of the winners obtained more than 50% of the votes, while another 26% received between 40 to 50% votes. To that extent the winners can claim to be truly ‘representative’.

 

 

Since the Delhi elections were one of the first to try out the efficacy of the disclosure system, it is useful to consider what improvements in the system are needed as borne out by DEW’s experience. To begin with we may consider the adequacy of the disclosure proforma. The proforma regarding assets and liabilities needs some improvements. The basic objective of seeking this information, as borne out in the Supreme Court verdict, is to help voters get an idea of the financial position of the candidates as also serve as a benchmark to monitor any noticeable subsequent increase in assets, which could be ascribed to a misuse of the elected position. Newspaper reports prior to the nomination process indicated that some of the political parties were indeed taking a careful note of the disclosure requirements and were engaging chartered accountants and lawyers to brief candidates on how to fill the proforma.

Two glaring omissions however, were noticed. One is that neither the nomination papers nor the annexure referred to the occupation of the candidate or sources and extent of income. It is, therefore, virtually impossible to make even a preliminary assessment as to whether the assets declared are proportionate to known sources of income. The second relates to income tax. Any person who has a mobile phone, motor vehicle, immovable property, credit card, club membership or has travelled abroad is required to file an income tax return, whether or not income tax is actually liable to be paid – the ‘one-in-six formula’. Though the Election Commission’s proforma seeks information on income tax paid, assessment year upto which income tax return has been filed and also the permanent account number (PAN), most candidates did not provide information in this regard and even where they did, the position was not clear.

Finally, our tabulation showed that out of 644 affidavits analysed, it was only in 140 cases that PAN and/or the year for which IT return had been filed was given. Some press reporters did pick this up and contacted some candidates for their reactions. It turned out that the proforma regarding IT return was not correctly filled out in such cases. This aspect can be easily remedied by introducing a few items of personal information such as occupation, income, PAN, whether an income tax payee or not and so on in the disclosure proforma. It is worth examining whether furnishing the PAN or information on filing the IT return should be a prerequisite for obtaining the nomination form.

 

 

There is significant overlap in the proforma relating to criminal antecedents. Part III of the main nomination form, in use for a long time, relates to convictions for offences which may disqualify a candidate. Form 26, introduced during the Gujarat assembly elections, seeks information about chargesheets filed and cognizance taken by courts for various offences. The affidavit added after the Supreme Court judgement in March 2003 also requires similar information about all criminal offences. A simpler form integrating these three different forms detailing information from FIR to chargesheet, trial, convictions or acquittal in the case of offences which might attract disqualification and separately in regard to other offences might be more user friendly, both for the candidate and the voter.

The effectiveness of any system of disclosure depends crucially on the time available for dissemination and analysis of the information disclosed. Unfortunately the timetable for the elections as prescribed in the Representation of People’s Act is rather rigid. Section 30 of the RP Act limits the campaign period to 14 days only. Proposals to extend this period is resisted by most political parties on grounds of increased election expenses. However, this argument need not apply to the nomination and pre-nomination stages. The five day period usually allowed for nominations is too brief. One could consider a two stage nomination. The first could be a pre-nomination stage similar to the primaries in the US. In this stage political parties should publish their list of candidates with as much personal information about the candidates, including criminal antecedents, as possible.

 

 

In the second stage the formal nomination process could begin. This too can be in two stages. The nomination papers should be made available only after candidates submit a ‘personal particulars form’, including occupation, income, PAN and so on. Allowing at least three working days for this process, the filing of nominations can begin thereafter. About ten working days should be given for the nomination process to be completed, including two days for scrutiny. The pre-nomination stage where political parties and individuals make known their intent about prospective candidates should minimally be three full weeks. The notification calling for elections, accordingly, will have to be issued earlier. The RP Act should be amended suitably for this purpose.

The pre-nomination stage will be taken seriously by candidates and parties only if it follows the public notice calling for elections. This will enable the public and civil society organisations to engage in a search for better candidates and render the electoral system more participative from the beginning. It is worth considering whether there should be a provision for withdrawal as it encourages frivolous candidates to enter the fray and then withdraw for political or monetary inducements.

 

 

Voter turnout has been a problem in Indian elections, particularly for assembly and Parliament polls. Over the past few years, voter turnout in panchayat and municipal elections has been high, ranging from 60 to 75%. In contrast, the turnout in the Delhi assembly election was 53.39%. This is a couple of percentage points above the 1998 figures. In the Motinagar constituency, 62.34% voted while RK Puram maintained its reputation for the lowest turnout with 40.73%. Episodically, theories are advanced about the lack of choice among candidates and the ‘disenchantment’ of the urban voter with elections and politics as compared to his rural counterpart. Though the underlying theory maybe spurious the phenomenon itself heralds a bad portent for our democracy. One partner organisation of DEW publicised the message: ‘If you don’t vote, you don’t count.’ This message needs reiteration.

The Delhi Election Watch represents a modest beginning. Thanks to the enthusiasm of the partner organisations and volunteer workers, a credible effort could be mounted to increase voter awareness about disclosures. More importantly, political parties are now aware that future elections will have to be more open and that candidates cannot any more hide behind the opacity of party choice. The support of the Election Commission and the commitment of some civil society groups has made this possible, but much more remains to be done.

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