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HindustanTimes Tue,16 Sep 2014

Should there be a blanket ban on those in custody from contesting polls?

Nagendar Sharma, Hindustan Times   July 13, 2013
First Published: 23:31 IST(13/7/2013) | Last Updated: 08:55 IST(14/7/2013)

The ruling Trinamool Congress has already won over 1,600 seats in the ongoing panchayat elections in West Bengal without a contest amid allegations from opposition parties that their candidates could not file their nomination papers since they were either arrested or were not allowed to reach the election offices.

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This is the realistic political scenario which exists in the country. Take a look at another incident which took place around 12 years back. In a midnight crackdown in Chennai, DMK chief and former Tamil Nadu chief minister M Karunanidhi along with serving two central ministers at that time, TR Baalu and the late Murasoli Maran were arrested by the state police in a corruption case and dragged to its headquarters in full public view.

Both incidents are a clear examples of vendetta and show that allegations of misuse of state machinery to settle scores with political rivals are not always baseless.

The last week has witnessed three major judgments from the Supreme Court on election related matters and as it’s commonly said — a week is a long time in politics — these verdicts have led to a political storm, with demands ranging from referring these matters to a special constitution bench of the top court to get a finality on the issue to amending the law which governs elections to remove the apprehensions created by these judgments.

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On July 5, the Supreme Court observed that promising freebies to voters in election manifestoes was not fair and asked the Election Commission to frame guidelines on poll promises in consultation with political parties. The verdict was generally welcomed. A week later, the Supreme Court struck twice. First it declared any MP or MLA convicted by a court for an offence punishable with more than a two year jail term will be immediately disqualified. While the political class and other stakeholders were still trying to gauge the impact of this judgment, came the next and perhaps the most controversial of the three verdicts.

The Supreme Court upheld the 2004 verdict of the Patna High Court, which had ruled that any individual in lawful custody — whether police or judicial — cannot contest elections.

Even the civil society activists and legal experts, who have credited the country’s top court with having taken a bold step towards decriminalising the electoral system of the country are cautious in reacting to the blanket ban imposed on those in custody from contesting elections.

Noted constitutional expert and veteran Supreme Court lawyer, PP Rao, is of the view that the government might have to bring an ordinance to remove the doubts created by this verdict. He, however, blames the political class for having ignored electoral reforms for too long.

“Parliament invited it by default. It took no concrete steps to make improvements in the Representation of People’s Act (RPA), if you don’t do it, then other institutions are bound to step in,” Rao said.

The Association for Democratic Reforms (ADR), an NGO working for the clean-up of elections, however, is of the view that apprehensions expressed by political parties are misplaced.

“I agree that the provision to ban those in custody from contesting elections could be misused, but my question is who will do that? Is it not the political class (ruling party) alone which has the power to harass its rivals?” observed Jagdeep Chhokar, professor at ADR.

The government appears to be in complete disagreement with the twin judgments and is weighing options on its next step. Though the major political parties do not want to be seen as outrightly opposing the verdicts which have triggered a fresh debate on electoral reforms, but the voices against ‘judicial overreach’ are getting louder now.

The CPI(M) has demanded a review of the judgment which banned those in custody from contesting elections and JD(U) president Sharad Yadav has stated that the Parliament must take a united stand on electoral reforms and amend the relevant law.

With the Supreme Court having questioned the Parliament’s power to allow convicted MPs/MLAs till their appeal is decided, the disquiet within the political class seems to be growing.

With courts across the country showing signs of assertiveness, a clear indication of which came from the biggest high court of the country, Allahabad, which has banned caste-based rallies in Uttar Pradesh, the election year promises to be an eventful one.


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