'Electoral reform must treat the disease, not the symptom'

The two Supreme Court verdicts on electoral laws have raised the shackles of the political class in the country.

Most of the parties have welcomed it cautiously but behind the scenes, they are uneasy. Samajwadi Party has already come up against the verdicts while the Congress-led UPA government is contemplating an all-party meeting to decide on what steps should be taken to offset the verdicts.

Shemin Joy of Deccan Herald spoke to former Chief Election Commissioner N Gopalaswami, who captained the Commission between June 2006 and April 2009, on the recent Apex Court judgments, ceiling on election expenses and  other issues. Edited excerpts:

The Supreme Court has come up with verdicts to disqualify convicted lawmakers and ban jailed people from contesting elections. What are your views?

The first one is fine but the one on banning jailed people from electoral contest does not seem to be in consonance with relevant provisions.

Do you think the recent verdicts went beyond the recommendations of several Commissions?

In a way, yes.  A convicted legislator used to get advantage if he appealed. But regarding the earlier verdict of 2005, the Supreme Court has clarified that the advantage is available for a limited period and not till the disposal of the appeal. If a lawmaker is convicted for an offence during his tenure, he could appeal within three months and continue only till the term of that particular House.

In the latest judgment, the SC has struck down that provision and hereafter, upon conviction a legislator will lose his seat whether he appeals or not.

Also, the ‘barring’ of all jailed persons from being an elector and so from contesting as a candidate goes well beyond the proposal for amendment to law to prevent only chargesheeted persons from contesting an election.

For example, elections are held in 2010 and in 2013; if somebody is convicted and then he appeals, he gets a protection only till 2015 during the period of that House. The protection does not help him afterwards. He cannot contest the next elections unless a higher court acquits him. Protection is only for a short period.

The maximum cover can be five years. For example, if a person takes oath on the first day of a House and he gets convicted on the second day, and if he appeals, his protection will be only for a maximum of five years. This verdict of the SC is only in respect of convicted persons and not those facing charge sheet.

Since 1998, Election Commission has written to successive governments asking them to take steps to decriminalise electoral system. The EC has always hit a hard wall. How do you see this situation?

It is not only the EC but the Commission for reviewing Constitution and Law Commissions did it. Everybody has proposed that those who are chargesheeted for heinous crimes should be kept out. But the Parliamentarians are unmoved. It is they who have to pass the law.

Justice J S Verma Commission has recommended several measures in its report and the government acted fast on certain aspects like amending the CrPC. But it has not taken any steps to implement the recommendations on electoral reforms. Is it a setback?

The Verma Commission recommendations that were not adopted with respect to electoral laws are in line with the recommendation of earlier Commissions. Verma Commission specifically said a person chargesheeted for rape should not be allowed to contest in the same manner in which the Law Commission and others recommended.

The EC does not check the veracity of affidavits at the time of filing nominations. What more legal measures you think should be taken to give more teeth to EC?

It is difficult to check affidavits. If you start checking affidavits soon after the day of nomination, there is scrutiny two days after it. If there are ten candidates and if you have to check every affidavit, it will go on for days. Then we will not be able to hold the elections in time. That is not a feasible proposition.

There is tremendous increase in the wealth of lawmakers if one compares their declared assets at the time of election and at the end of their tenure. Isn’t it a matter of concern?
These are all real problems. The Commission cannot handle it unless we have an army of people enquiring into it. There  are 543 MPs in Lok Sabha alone. The average number of contestants in each constituency is 15-16 and it could mean a total of around 8,000 candidates. How can the Commission start enquiring about them? That is why we make affidavits public so that people can file complaints and the EC will look into it. Again there are problems. The EC cannot take action. The action shall be taken only by the returning officer before whom the affidavit is filed. So how long will it take is an issue?

BJP leader Gopinath Munde has made a sensational revelation that he has spent Rs eight crore on campaign when the ceiling is Rs 40 lakh.

Wait to see what the Election Commission does on the issue.

In this context, do you think that there should be an increase in the cap on election spending taking into account inflation and other matters?

Somebody says he has spent Rs eight crore. The present ceiling is Rs 40 lakh. If you increase the ceiling to Rs 50 lakh, then also he is spending Rs 8 crore. If you raise the ceiling to Rs one crore, then also it is Rs 8 crore. Is there any end? More than half the number of candidates, I am told, show their expenditure as half of the permitted ceiling in their affidavits. What is the truth? If today you increase the ceiling to Rs eight crore as some people are spending such amount, then tomorrow somebody will say raise it to Rs 10 crore.

Do you think black money is another issue of concern?

Black money cannot be tackled at election level. It has to be tackled at the point of its origin. Black money in election is not the disease. It is only the symptom. You have to tackle the disease and not the symptom.

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