My Writ Petition (W.P. No. 27364 of 2021 )vide WP seeking for a direction from court to conduct substantial electoral reforms. The first Bench headed by the Hon'ble Acting Chief Justice and Hon'ble Mr.Justice.P.D.Audikesavalu was pleased to order Notice to the Respondent.
IN THE HIGH COURT OF JUDICARTURE AT MADRAS
SPECIAL ORIGINAL JURISDICTION
W.P. No. 27364 of 2021
K.S. Radhakrishnan
S/o. Shri K.V. Srinivasan, aged about 63 years,
No. 4/359, Sri Chaithanya Avenue
Anna Salai, East Coast Road
Palavakkam, Chennai – 600041
Tamil Nadu...Petitioner
Versus
1. Union of India
Through the Secretary,
Ministry of Law and Justice,
Shashtri Bhawan,
New Delhi-110001
2. Election Commission of India
Through the Director Law,
NiravachanSadan,
Ashoka Road,
New Delhi-110001 …Respondents
AFFIDAVIT OF K.S. RADHAKRISHNAN
I, K.S. Radhakrishnan S/o K.V. Srinvasan aged about 64 years, residing at No. 4/359 Anna Salai, Palavakkam, Chennai 600 041, native of Kurunjakulam, then Tirunalveli District, do hereby solemnly affirm and sincerely state as follows: -
1. I state that I am the Petitioner herein and that I am well acquainted with the facts and circumstances of this case and that I am competent and authorized to swear this Affidavit. I further state that I have not filed any Writ Petition in any other forum for the reliefs sought for herein.
2. I state that I am a resident of Chennai and I am employed as an Advocate, Arbitrator and a Political activist holding positions over 50 years and I have contested in Tamil Nadu General elections as well. I further state that I am a sincere citizen with no blemish in my record.
3. I state that I am a practicing Advocate, and have a prominent practice in the Courts at Chennai, as such my annual income is Rs. 5,00,000/-.I state that myAadhar Card No. is 4504 1343 9749, PAN No is AAZPR6883M. 4. I have no personal interests, individual gain, private motive or oblique reasons in filing this Writ Petition. It is not guided for gain of any other individual person, institution or body. There is no motive other that the larger public interest. I state that I am a Practicing Advocate practicing at Tamil Nadu. I am also a Political Analyst, Activist, Agriculturist, Writer and Columnist.
5. I state that I am a member of International Law Association (India Chapter), Indian Council of Arbitration and I am holding the post of Joint Secretary of Indian Lawyer’s Association (Tamil Nadu Chapter). I have held various positions in public and government capacity. I am a life member of Alliance Francise De Madras, Founder President for forum Podhigai – Porunai – Karisal and Common Cause (Public Interest Litigation and Forum). I am also associated with international organization such as Amnesty International and various national regional Agencies of Human Rights and democracy. I state that I am an advocate practicing for more than 40years and have filed various Writ Petitions before the Hon’ble Supreme Court and also before the Hon’ble Madras High Court, including Petition praying for voting right for prisoners, nationalization of rivers, linking of national rivers and PILs relating to 3 tire system of Panchyat Raj and various environmental issues. I state that I have no civil, criminal or revenue litigation against him and has no personal interest in this case. I further state that I had filed a Writ Petition (Civil) No. 1028 of 1990, challenging the validity of Section 62(5) of the People Representation Act, 1950.
6. I state that I also filed various PILs since 1975 before the Hon’ble Madras High Court and most notably in the issue relating to Kudankulam, arrest of air pollution and to take remedial action to prevent use of Industrial hazardous Materials, PIL for protecting the right and for ensuring safety of Tamil Devotees visiting Kannagi Temple at Kerala. The Petitioner has also filed various cases for the protection of the Eastern and Western Ghats in the National Green Tribunal and for the preservation of water bodies. In the year 1983, I filed and succeeded in declaring the districts of Tirunelveli and Tuticorin as drought hit District due to monsoon failure, by filing PIL before the Hon’ble High Court of Judicature at Madras.
7. I state that I am a writer and litterateur, writer, editor, kathaisoli (folklore Tamil magazine) and a notable personality in media, the Petitioner herein has authored many books in issues such as Srilankan Tamils, Kachathvu, MullaiPeriyar dam etc. in Tamil and in English, some of the noteworthy titles are ‘UrimaikkuKuralKodupom’ (on political, economic and human rights issues), ‘ManithanUrimaigalEndral Ena?’ (A primer on Human Rights), ‘NimiraValikkumNellai’ (A history of Tirunelveli District in Tamil Nadu) and 15 other books in Tamil. I further state that I have a popular personality in media debates.
8. It is submitted that due election reforms are need of the day, in order to uphold the free, fair, just and secular nature of the country and for providing medium / forum for the voter to make informed decision for voting, and to curb the influence of the corruption, black money and etc. from the election process. And also, to minimize / eradicate the influence of role of caste in the election system.
Elections and Electoral System means;
Élitism (or élitist theory) is a rather loose term used to describe a variety of political theories. What all the theories have in common is the conviction that every political system, whatever its official ideology, is in fact ruled by a political élite or élites. The originators of modern élitist theory were two late 19th-century Italian social scientists, Pareto and Mosca. (Which of the two devised the élitist theory was the subject of an argument between the two men themselves that was continued by later commentators.) In showing that all societies must be governed by élites, Pareto and Mosca intended to destroy the belief in Marxism that there could one day be a classless society with complete political equality; ironically, writers with a Marxist perspective subsequently used much the same model to dismiss the democratic pretensions of Western liberal societies. Whereas Pareto treated contemporary democracy as a complete sham, Mosca changed his position over time, eventually accepting that democracy was possible in the form of a system in which competing élites submitted to being chosen or rejected by electors. However, he never moved far from his main position, summed up in his statement that a parliamentary representative was not someone the people had elected, but someone whose friends had arranged for him to be elected.
Elitist theories were developed further in the early 20th century by several thinkers, notably Schumpeter and one of Mosca's disciples, Roberto Michels. Setting out his iron law of oligarchy, Michels tried to show that even the Social Democratic Party of Germany (SPD), the oldest socialist party in Europe, was inherently undemocratic, and bound to betray its working-class members. In the 1930s Schumpeter mapped out what was to become, with Dahl and others, the pluralist model. He reinterpreted democracy as nothing more than a system in which rival élites of party leaders vied for power through elections; but, far from condemning this state of affairs, he insisted that ordinary people could not, and indeed should not, have any more say in politics than this power of electoral choice. (Much later Downs, in his rational choice model of party politics, tried to show that this did not affect the democratic nature of Western politics.) From the left, many commentators have attempted to show that Western democracies are indeed governed by power élites, or élites based on a ruling class, and are thoroughly undemocratic; but such commentators of course retain their conviction that an abolition of capitalism will lead to political equality.
The various élite theorists share no common ground when attempting to explain the inevitability of élites. Pareto had a complicated psychological theory, linked with a pessimistic view of the human capacity to exercise reason in social life; Mosca and Michels relied heavily on a theory about the nature of organization and bureaucracy quite similar toWeber's; Schumpeter believed the masses were bound to suffer from the hysteria associated with crowd psychology; and the list could be extended. There is no general agreement among political scientists about the factual accuracy of élite theories or the desirability of the situation they describe. There are, though, few who would care to deny that there is at least some evidence for the existence of élites, if only the relatively sanitized version developed by pluralists, and the less far-reaching claims of writers like Michels in his classic Political Parties find considerable support from much later and less biased research.
Voting is an act of choice among a set of alternatives, by a free individual, and is at the heart of modern democracy. People have, of course, voted for candidates for office, or for policy alternatives, in every social system ever experienced. The recorded history of voting goes back, at least, to the Greek polis. The modern word for the study of voting behaviour, psephology, derives from the classical Greek 'psephos', the piece of pottery on which certain votes, mainly about the banishment of those seen as dangerous to the state, were inscribed. Voting is no more than the voicing of individual opinions - the problems arise in counting the votes (see voting systems), and in deciding for whom, or for what alternative, the votes have been cast.
When the voting is in an election to choose a candidate among others, the most important requisites are the secret and individual ballots, which allow the impartial measurement of opinion. The use of these is actually quite recent, at least in their fullest form; the secret ballot was not used for parliamentary elections in the United Kingdom until the late 19th century. Allowing candidates to put party labels on the ballot slips, the minimum necessary to avoid wasted votes, did not happen until the late 1960s.
The vote has been restricted, throughout history, for a variety of reasons. Probably the most common qualification, in national politics, has been a wealth or property qualification. Since the late 19th century there has been a series of developments on the franchise, each slightly extending voting rights, firstly among men and later to women. The typical modern standard in the late 20th century is that all citizens over the age of 18 should be allowed to vote. (The Routledge Dictionary of Politics – David Robertson).
9. It is submitted that the day to day, report regarding the corruption in politics and involvement of name of big political leaders has shaken people’s belief in election system and in democracy. It is therefore respectfully submitted it is the need of the hour, this Hon’ble Court’s indulgence in reforming election process of the country is critical in restoring the faith of the country’s people in the election system.
10. That the Petitioner herein has made various representations to the (1) Chief Election Commissioner, Election Commission of India, (2) Cabinet Secretary, Government of India, (3) Secretary, Ministry of Law and Company Affairs, suggesting a detailed Affidavit format for declaring Assets and Liability of the candidate as mandated as per Section 75A of the Representation of Peoples Act, 1951, to ask the candidates to provide information regarding intention of the candidate in joining politics, about the economic status and assets owned at the time of entering politics along with the value of the same, full details about the Political Party to which he/she belongs to, and details regarding present economic status of the said person, also should be accompanied relevant documents supporting the same, in order to test the veracity of the said information provide by such persons.
11. I state that it was reported in a news daily that Election Commission noted that with honest and total transparency missing, if parties receive donation from in violation of Representation of People Act. 1951, there is no penal provision to take under the said Act. I state that I again sent a detailed Representation to the Union Government and other concerned statutory bodies suggesting various electoral reforms. I state that the Ministry of Law and Justice and Cabinet Secretariat acknowledged Petitioner’s representation dated 20.07.2015. The acknowledgement dated 21.09.2015 and it was reported in Magazine ‘India Legal’, on 20.03.2017 explaining the Electoral Reforms that are being suggested by the Law Commission vide its report No. 255 and the urgent necessities for giving effect to the same. 12. It is humbly submitted that this Hon’ble Court vide order dated 08.09.2017 was pleased to issue notice in a similar matter in SLP (C) No. 22373 of 2017 titled Khemchand Rajaram Koshti vs. Union of India &Ors.Whrerin the similar issue has been challenged by the petitioner and the same is pending consideration before this Hon’ble Court along with news item published in Economic Times dated 08.09.2019.
NEED FOR REFORMS / IMROVEMENTS IN FORMATOF THE AFFIDAVIT OF CANDIDATES – DECLARATION WITH REGARD TO HIS / HER CRIMIAL HISTORY AND WITH REGRD TO DECLARATION OF FINANCIAL HISTORY OF THE CANDIDATE AND HIS / HER FAMILY MEMBERS:’
13. It is submitted that vide 72 of 2002 Act amended the Representation of People Act, 1951, inter alia inserted Section 75A, Declaration of Assets and Liabilities, whereby it was mandated to furnish information regarding he movable and immovable property of which candidate, his spouse and his dependent children are jointly or severally owners or beneficiaries, his liabilities to any public financial institution; and his liabilities to the Central Government or the State Government, to the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.
14. It is submitted that the Section 125A of the Representation of People Act, 1951, provides that furnishing false information filed by the candidate in the affidavit is an offence punishable by imprisonment upto six months or with fine. But, there is no clear provision for follow-up action in the event of candidates filing false affidavits. Hence, there are several complaints of the false statements in affidavits, which mislead the electors and further the format prescribe for the said affidavit does not contains / reveals sufficient information about the financial status of a candidate.
15. It is submitted that Section 31 of the Representation of the People Act, 1950, makes a person who in connection with preparation, revision or correction of an electoral roll or in connection with inclusion or exclusion of an electoral roll, makes a statement or declaration in writing, which is false; be punishable with imprisonment extending to one year or fine or both. However, there is no parallel provision in the RPA, 1951, to penalize a person making false declaration in connection with conduct of elections. There are several cases of false statements before election authorities in connection with conduct of elections.
16. It is submitted that in order to discourage motivated false statements before the election authorities, it would be useful to have a provision in the RPA, 1951, similar to Section 31 of the RPA, 1950.
17. It is submitted that a candidate must furnish an affidavit, in the nature of Form 26 appended to the Conduct of Elections Rules, 1961 which shall contain the information regarding their criminal antecedents, if any, their assets, liabilities, and educational qualification. It is notable that Section 125A of RPA, 1951 provides for the penalty for filing false affidavit but the offence is punishable by up to 6 months, or with fine, or with both.
18. It is submitted that the ECI has stressed upon the importance of filing of true information in their affidavits by candidates standing for elections. The ECI has also reiterated that filing of false affidavits in matters of election can have extremelyserious consequences as it affects the purity of elections. In order to make an informed choice, the elector has right to know the correct information of the candidates and thus the candidate is liable to furnish true and authentic information in their respective affidavits.
19. That this Hon’ble Court in the case of Krishnamoorthy v. Siva Kumar reported in (2009) 3 SCC 446, pertaining to panchayat elections, wherein this Hon’ble Court has held that failure to disclose complete information may amount to undue influence, and that incorrect and false information interferes with the free exercise of the electoral right of the voter.
20. Filing of insufficient / false declaration about the background of candidate undermines the basic value of candidate disclosure, in turn affecting the right of the elector to know the antecedents of candidate. Therefore, it is necessary to mandate a fool proof affidavit format which would provide all the relevant / necessary / crucial information about the person’s financial background completely.
21. It is submitted that the Law Commission, on may 1999 vide its Report No. 170, recommended to make the candidates ineligible to contest in the elections unless the declares his /her assets both movable and immovable possessed by him/her, his/her spouse and dependent relations, and also to declare as to whether any charge in respect of any offence referred to in section 8B has been framed against him by any Criminal Court duly supported by an Affidavit.
22. It is submitted that in the year 2002, the Election Conduct Rules of 1961 was amended and Rule 4A was inserted whereby the as per the recommendations of the Law Commission Candidates are required to submit declaration in order to become eligible to contest in the Elections. As present the following details are to be given in the form of declaration along with supporting Affidavit:
i) Details regarding his / her Self, his / her Spouse and his / her Dependent.
ii) Details of court cases, if any, pending / disposed of wherein the candidate is / has been arrayed as an accused in offence punishable by imprisonment for two years or more wherein the charges are framed by a Court of competent jurisdiction.
iii) Details of court cases, if any, wherein the candidate is / has been convicted in offence(s) and has been sentenced to undergo imprisonment for one year or more
iv) Details of all his/her assets, both movable and immovable possessed by him/her, his/her spouse and dependent relations, duly supported by an affidavit
v) Details of liabilities / dues to Public Financial Institutions and Government, if any
vi) Details regarding the total possession of assets and financial holdings before and after entering into politics, year wise and category wise. It gives noble message to purity of public life.
vii) Details of profession or occupation, if any
viii) Educational Qualification, if any
23. It is respectfully submitted that the said format of the Affidavit not sufficient to determine the reliability and trust worthiness of the candidates as the same is lacking to provide details as to the intentions / reasons of the Candidates contesting in the election and to enter into politics. It is submitted that the present format of the declaration is not sufficient to determine the financial history of the candidates, as the same does was totally silent on the Financial History of the Candidate and the Source of Income for acquiring the properties step by step of earning.
24. It is respectfully submitted that an affirmative action / indulgence of this Hon’ble it is the need of the hour in order to curb corruption present in politics and to conduct the election in a fair, transparent and just manner. The Petitioner intends to quote the words of the perennial Tamil poet SaintThiruvalluvar regarding democracy. He lived in the period of monarchy. However, his ideas and ideals are also applicable for the present leaders of democracy. He also indicated the nature of state and government in the king’s rule. The words of Valluvar regarding Government and State is applicable and suitable to all over the period as well as every organization in the world.
Welfare state and King
25. To put it in simple words, Valluvar’s political system is based on welfare state. For instance, in Iraimatchi (Qualities of a ruler), he says
முறைசெய்துகாப்பற்றும்மன்னவனமக்ட்குஇறையெனறுவைக்கபடும். (குறள்: 388)
Who guards the realm and justice strict maintains, That king as god over subject people reigns. (Kural: 388)
26. If a king delivered justice by doing the duties honestly, he may be regarded as a God. Ideal path and welfare – arrived kings can be respected and kept on par with divine. This kind of view is not only applicable to monarchical period but it also applicable to present democratic period.
27. Features of State
The characteristics of a state are to maintain ethics, the eradication of wrong doing activity, mandating impartiality of justice and protection of honour.
அறனிழுக்காதல்லவைநீககிமறனிழுக்கமானனம்உடையதரசு (குறள்: 384)
Kingship, in virtue failing not, all vice restrains, in courage failing not, it honour’s grace maintains. (Kural: 384)
King’s path is the peoples’ path, king should act as a guide for his subjects, if he does harm or evil activities, it may influence all. It is because of his position as a leader, his discipline and private life will spread to all in the kingdom. Moral and ethical life is quite essential for the ruling kings. Indicating “Respect” in a broad manner relating it with nation, Valluvar gave priority for great honour which may be equated with the courage. He stressed that king must be loyal to the nation, it is the honour of nation.
28. It is submitted that the political leaders in the modern era are corrupt which leads to the destroying of the country. For instance, The Pleasant Stay hotel case was a case against the J. Jayalalithaa, the late Chief Minister of Tamil Nadu. Jayalalitha and her ministerial colleague, T. M. Selvaganapathy, were charged with misusing the office to allow Pleasant Stay Hotel in Kodaikanal to build seven floors against the norms. The case and charge sheet were filed during the following Dravida MunnetraKazhagam (DMK) government headed by Karunanidhi in 1996. Jayalalitha and Selvaganapathy were convicted in the lower court, which sentenced her to one-year imprisonment to the two and three others involved. The case had political implications as the aftermath of violence created a furor in the state. The statewide violence resulted in the burning of five buses, damaging fifty buses, and leaving 40 people injured. Three girls students of the Tamil Nadu Agricultural University were burnt alive in a bus in Dharmapuri. The three AIADMK party workers who were convicted in the case received a death sentence in the case in 2007, but it was commuted to life imprisonment. The corrupt minds of the Political leaders may destroy the country at any point of time in the near future.
29. It is submitted that the philosopher/writer/poet Shakespeare had also written several lines relating to the government and politics. One of which is as hereunder:
“In Greece…
Though there the people had more absolute power -
I say they nourished disobedience, fed
The ruin of the state”
Coriolanus 3.1.114, 116-18, CORILANUS’ attack on democracy.
He also writes another poem which upholds democracy and freedom of choice of the people.
“Let desert in pure election shine,
And… fight for freedom in your choice”.
Titus Andromicus 1.1.16-17
30. It is therefore most respectfully prayed that this Hon’ble Court may be graciously be pleased to direct the concerned authority to make amendments to current affidavit / declaration format and making it mandate for the candidate to provide full details about the Political Party to which he/she belongs and intention of the candidates in joining politics and to direct the concerned authorities to publish the said information in accessible format by the general public / voters for enabling them to take an informed decision in order to save the country from being destroyed.
IMPLEMENTATION OF RECOMMENDATIONS OF INDRAJIT GUPTA REPORT ON STATE FUNDING:
31. It is submitted that the Indrajit Gupta Committee submitted its report in the year 1998. The said Committee in its report endorsed for State Funding of Elections, in order to establish a fair playing field for parties / candidates with less financial ability. The Committee envisaged a phased introduction ofpublic funding, beginning with State Subsidies such as rent-free office space, free telephone facilities, electoral rolls’ copies, loudspeakers, specified quantities of fuel, food packets, and airtime in both on State Owned and Private Owned Media, at initial stages, was gradually, the Committee envisioned a transition to full state funding, along with monetary provision via the creation of a central-governed Election Fund, whose funding would be provided by the Centre and the States together and required parties to submit audited accounts and tax returns to avail the benefits. The Petitioner herein had given a personal representation during the full funding of election when this committee visited Chennai.That in the matter titled “Kanwar Lal Gupta v Amar Nath Chawla” the Hon’ble Supreme Court observed that:
“........ money is bound to play an important part in the successful prosecution of an election campaign. Money supplies "assets for advertising and other forms of political solicitation that increases the candidate's exposure to the public." Not only can money buy advertising and canvassing facilities such as hoardings, posters, handbills, brochures etc. and all the other paraphernalia of an election campaign, but it can also provide the means for quick and speedy communications and movements and sophisticated campaign techniques and is also "a substitute for energy"those paid workers can be employed where volunteers are found to be insufficient. The availability of large funds does ordinarily tend to increase the number of votes a candidate will receive. If, therefore, one political party or individual has larger resources available to it than another individual or political party, the former would certainly, under the present system of conducting elections, have an advantage over the latter in the electoral process”.
32. That in the matter titled “Ashok Shankarrao Chavan Vs. MadhavraoKinha” this Hon’ble Court was pleased to observed:
“48.It is common knowledge as is widely published in the Press and Media that nowadays in public elections payment of cash to the electorate is rampant and the Election Commission finds it extremely difficult to control such a menace. There is no truthfulness in the attitude and actions of the contesting candidates in sticking to the requirement of law, in particular to Section 77 and there is every attempt being made to violate the restrictions imposed in the matter of incurring election expenses with a view to woo the electorate concerned and thereby, gaining their votes in their favour by corrupt means viz by purchasing the votes…...................
55. In recent times, when elections are being held it is widely reported in the Press and Media that money power plays a very vital role. Going by such reports and if it is true then it is highly unfortunate that many of the voters are prepared to sell their votes for a few hundred rupees..….. This view of ours is more so apt in the present-day context, wherein money power virtually controls the whole field of election and that people are taken for a ride by such unscrupulous elements who want to gain the status of a Member of Parliament or the State Legislature by hook or crook.”
33. It is respectfully submitted that the current scheme of electoral bond is not sufficient to eradicate the entrance of black money into election campaign as the same is not barring / limiting the amount of bond that a particular party / candidate can create. Further said scheme gets redundant in view of lifting of the maximum limit of 7.5% on the proportion of the profits a company can donate to a political party, would lead to shell companies being set up specifically to fund parties, amendment of the Foreign Contribution (Regulation) Act (FCRA) opening the floodgates of foreign funding to political parties and to top it all the refusal of Political Parties to come under the preview of RTI Act. The said issues are discussed in detail in a news article titled “A vote for state funding” published in website of The Hindu on 29.10.2018.
34. It is respectfully submitted that the immediate indulgence of this Hon’ble Court is highly necessary in order to curb the evil elements from contesting in the election and to stop them from using unfair and unjust means to win the elections / gain popularity.
35. It is respectfully submitted that this Hon’ble Court’s indulgence in need of the hours to save Electoral College from the corrupt and illegal people and in order to ensure conducting just and fair elections. It is needless to state that the votes are being sold by politicians who take undue advantage of the people below poverty line. The earnings of the poor are so abysmal and unpredictable, their work so backbreaking, that money earned from selling votes seems like fortune from heaven.
36. It is submitted that state funded election and periodical audit submission would stop the corruption and black money from entering into election campaigns. The same would lead a path for providing fair ground for the candidates with less financial capacity to contest / campaign in the election.
37. Electronic voting in India:
Electronic Voting is the standard means of conducting elections using Electronic Voting Machines, sometimes called "EVMs" in India during Indhra Gandhi Period in 1971. The use of EVMs and electronic voting was developed and tested by the state-owned Electronics Corporation of India and Barat Electronics in the 1990s. Before that the first use of EVM was made in Kerala in a trial-and-error basis in Paravayur assembly constituency election held on 19.05.1982. The proposal of using EVM was the made in 1977 during the Indhra Gandhi period. They were introduced in Indian elections between 1998 and 2001, in a phased manner. Prior to the introduction of electronic voting, India used paper ballots and manual counting. The paper ballots method was widely criticised because of fraudulent voting and booth capturing, where party loyalists captured booths and stuffed them with pre-filled fake ballots. The printed paper ballots were also more expensive, requiring substantial post-voting resources to count hundreds of millions of individual ballots. Embedded EVM features such as "electronically limiting the rate of casting votes to five per minute", a security "lock-close" feature, an electronic database of "voting signatures and thumb impressions" to confirm the identity of the voter, conducting elections in phases over several weeks while deploying extensive security personnel at each booth have helped reduce electoral fraud and abuse, eliminate booth capturing and create more competitive and fairer elections. Indian EVMs are stand-alone machines built with once write, read-only memory. The EVMs are produced with secure manufacturing practices, and by design, are self-contained, battery-powered and lack any networking capability. They do not have any wireless or wired internet components and interface. The M3 version of the EVMs includes the VVPAT system.
Latest debate about the reliability of the EVMs:
38. It is submitted thatthere are several debates pertaining to the reliability of the EVMs. The main issue is whether it can be hacked and tampered to influence the results of the elections. The simple answer is yes, it can be hacked, and since EVMs are not networked, altering their functioning would require access to the machines themselves. That means that entities attempting to hack an EVM cannot use remote access, such as through the internet, and would need physical access to the machines themselves or their cables, while going unnoticed by (or in collusion with) authorities or other party agents. There is a simpler way to manipulate the vote: pressing the button for someone else. The Election Commission has ordered re-polling on several occasions after video clips emerged of a polling agent going up to the balloting unit and pressing the button before voters had a chance to do so. This sort of blatant fraud is supposed to be prevented by the commission’s micro-observers and by polling agents of other parties.
39. It is submitted that videos and reports from a few places around the country have found EVMs being transported without the appropriate level of security mandated by the guidelines. This has led to fears that the ruling party has not hacked the EVMs that people voted on but is somehow trying to swap actual EVMs with other ones. The Election Commission has dismissed these claims, saying that the EVMs that were used to register votes are all in strong rooms that are under 24-hour security, CCTV scrutiny and more. The Commission claims that the machines in a number of these videos are “reserve” EVMs, that are usually kept for cases of malfunctioning at the time of voting. Despite this clarification, the Commission has not explained why even the reserve machines are not being transported with appropriate scrutiny, as the guidelines require. That said, the Commission has reminded the public that the procedure for counting votes still includes several other checks to ensure the integrity of the process. Once voting is complete at booth, the EVMs and VVPATs are “sealed properly in front of parties’ candidates and videographers, CCTV cameras installed. CAPF security was also present. Candidates are allowed to look at strongrooms at a time and one representative of each candidate 24×7,” the Election Commission said. In other words, if the polling agents of political parties have been vigilant, any concerns about tampering of the actual polled EVMs would have been spotted and could lead to complaints or even action in court. It is submitted that the ECI must clarify and put an end to these debates.
40. The Petitioner further states that India conducts quid pro quo elections wherein the politicians offer monies in order to purchase the votes of the voters and woefully, the voters accept the same and cast their votes in return for the fortune provided by the politicians. Another issue is individualization of a politician and neglecting the hard work of other members in the political party. People from the film industry often jump into politics with no political experience and the lure the citizens to vote for them.
41. Criminalization of Politicians:
Legal Aspect of Disqualification of Criminal Candidates
In this regard, Indian Constitution does not specify as to what disqualifies a person from contesting elections for the Parliament, Legislative assembly or any other legislature.
The Representation of Peoples Act 1951 mentions the criteria for disqualifying a person for contesting an election of the legislature.
Section 8 of the act, i.e., disqualification on conviction for certain offences, according to which an individual punished with a jail term of more than two years cannot stand in an election for six years after the jail term has ended.
The law does not bar individuals who have criminal cases pending against them from contesting elections therefore the disqualification of candidates with criminal cases depends on their conviction in these cases.
Reasons for Criminalization:
Lack of Political Will:
In spite of taking appropriate measures to amend the RPA Act, there has been an unsaid understanding among the political parties which deters Parliament to make strong law curbing criminalisation of politics.
Lack of Enforcement:
Several laws and court judgments have not helped much, due to the lack of enforcement of laws and judgments.
Narrow Self-interests:
Publishing of the entire criminal history of candidates fielded by political parties may not be very effective, as a major chunk of voters tend to vote through a narrow prism of community interests like caste or religion.
Use of Muscle and Money Power:
Candidates with serious records seem to do well despite their public image, largely due to their ability to finance their own elections and bring substantive resources to their respective parties.
Also, sometimes voters are left with no options, as all competing candidates have criminal records.
Effects:
Against the Principle of Free and Fair Election:
It limits the choice of voters to elect a suitable candidate.
It is against the ethos of free and fair election which is the bedrock of a democracy.
Affecting Good Governance:
The major problem is that the law-breakers become law-makers, this affects the efficacy of the democratic process in delivering good governance.
These unhealthy tendencies in the democratic system reflect a poor image of the nature of India’s state institutions and the quality of its elected representatives.
Affecting Integrity of Public Servants:
It also leads to increased circulation of black money during and after elections, which in turn increases corruption in society and affects the working of public servants.
Causes Social Disharmony:
It introduces a culture of violence in society and sets a bad precedent for the youth to follow and reduces people's faith in democracy as a system of governance.
Recent Steps by the Supreme Court to Curb Criminalization of Politics:
In February 2020 Supreme Court (SC) ordered the political parties to publish the entire criminal history of their candidates for Assembly and Lok Sabha elections along with the reasons that forced them to field suspected criminals.
The SC in Public Interest Foundation vs Union Of India, 2018 had also directed political parties to publish online the pending criminal cases of their candidates.
Given the reluctance by the political parties to curb criminalisation of politics and its growing detrimental effects on Indian democracy, Indian courts must now seriously consider banning people accused with serious criminal charges from contesting elections.
42. Principle of Recall:
It is submitted that the principle of recall must be implemented.A recall election (also called a recall referendum, recall petition or representative recall) is a procedure by which, in certain polities, voters can remove an elected official from office through a referendum before that official's term of office has ended."Right To Recall (RTR)" are existing laws in some states of India that allow citizens to remove or replace public servants holding posts of Sarpanch, Mukhiya, Corporator and Mayor in the government.Right to recall seems like a very attractive ideaon theory but introducing such a right would not only entail practical difficulties, but also bring along various undesirable repercussions. The idea to have recall elections does not seem to be the best idea when we already have other measures to ensure good governance. The focus should be on reviving the existing measures as well as finding solutions to the root-cause of having poor quality of representation at the first place.A right to recall is not viable in India as of today. It might be viable in future, if the system of internet voting is introduced which could eradicate all the practical difficulties which have been already looked into. However, whenever recall is introduced, an attempt should be made to minimise all the foreseeable abuses of the same by devising a robust recall-procedure.The Petitioner desires that the right to recall must be considered a right to all citizens and only then the politicians will hold office in a proper manner just with the fear of being recalled/ removed from office.
43. Politics as business:
It is submitted that India is a country where politics is seen with a business perspective. Predominant of the politicians enter politics to maximise personal profits and maintaining a system of power. The political parties aim to generate the inflow of monetary benefits towards themselves in order to keep the political party functioning and without money, contesting in elections are highly impossible and hence the political parties indulge in corrupt activities in order to gain personal profits. Politics in the modern era is more like gambling.
44. It is submitted that the State must monitor the personal assets and property details of all the Politicians prior to their participation in any elections. The State must also monitor the conduct of the politicians and the public if there are any votes being sold by the politicians by taking undue advantage of the people below poverty line.
45. It is therefore most humbly prayed that this Hon’ble Court may be pleased to direct the Respondents herein / concerned authorities take necessary steps and to frame policies for introducing state funded election and to monitor the property details/possessions of all the politicians since their birth.
REFORMS TO ERIDICATE CASTE BASED ELECTION SYSTEM
46. It is submitted that the caste plays pivotal role in elections in the country, and the same has led to deviation from the secularism, an imperative feature of the Constitution of India, the current working of the election system in the country and the manner of conducting of election, are in total contradiction to the concept of secularism.
47. The electoral authority should take steps to discourage caste-based election. It is submitted that reserving particular region for a particular caste for people to nominate is totally in contradiction to the secularism.
48. According to Cicero, the state exists to uphold laws which are in harmony with the universal principles of nature. If a state does not uphold right reason in agreement with nature, it is not a state. The law and the state are normative in nature, rather than conventional. He argued that without the key element of justice embodied in law, a state cannot be formed, observing that “many harmful and pernicious measures are passed in human communities–measures which come no closer to the name of laws than if a gang of criminals agreed to make some rules.” In his speeches condemning Mark Antony, Cicero even suggested that the laws Mark Antony passed held no validity as he enforced them using naked violence, rather than right reason. For Cicero law is more than just force, it is right reason in agreement with nature. At certain points in his writing, he chastised people for taking the traditional religious myths too seriously. The Petitioner also submits that a state that does not blend politics and caste/religion shall excel.
49. It is submitted that while deciding the matter titled “Kultar Singh v. Mukhtiar Singh” reported in AIR 1965 SC 141 this Hon’ble Court held:
“…………. In order that the democratic process shouldthrive and succeed, it is of utmost importance that our elections to Parliament and the different legislative bodies must be free from the unhealthy influence of appeals to religion, race, caste, community, or language………..”.
50. It is submitted that this Hon’ble Court while deciding the matter titled “S.R. Bommai v. Union of India” reported in 1994 (3) SCC 1 has held that:
“310…….If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. This would be plainly antithetical to Articles 14 to 16, 25 and the entire constitutional scheme adumbrated hereinabove. Under our Constitution, no party or Organisation can simultaneously be a political and a religious party.”
51. It is submitted that this Hon’ble Court while interpreting the meaning of section 123 (3) of Representation of Peoples Act, 1951 has held:
29. An appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s. The sum total of Section 123 (3) even after amendment is that an appeal in the name of religion, race, caste, community or language is forbidden even when the appeal may not be in the name of the religion, race, caste, community or language of the candidate for whom it has been made. So interpreted religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice…..”
52. It is therefore most humbly prayed that this Hon’ble Court may be pleased to direct the Concerned Authorities / Respondents to make a proper policy framework for eradicating caste-based elections and to minimize the influence of caste in the election process in order to change / maintain India into secular and casteless society in order to enable it to lead healthy development of the country.
53. The Petitioner further desires to highlight the situation in the Australian Upper House of Parliament where there is equal representation of candidates participating in elections per state regardless of the quantum of population. It is pertinent to state the situation in India where there is no equal representation of candidates participating in elections per state. For the sake of brevity, the Petitioner desires to mention that the state of Uttar Pradesh has a greater number of MLAs and MPs whereas the state of Tamil Nadu has lesser number of MLAs and MPs. The Petitioner further states that a feasibility study must be carried out by the ECI to regulate equal representation of election candidates from each state.
54. There is a need for a nation-wide debate to implement a proportionate representative system to represent all political parties invariably.
55. I submit that this petition filed in honest sense to makeover our democratic system in a healthy manner. Democratic benevolent state genuinely represent what Abraham Lincoln said “by the people, for the people” it gives sovereignty. These reforms should have scientific, arithmetic and sociological outlook without selling votes for money. These steps certainly pave a way hygienic democratic norm by providing the country’s sovereignty in the hands of the people.
56. It is also submitted that the Bicameral structure is the basic for the parliamentary system. Two tier system houses of lords and house of common are integral westministry system in the UK parliament i.e., the mother of parliaments. Likewise, our Indian parliament democracy consists of a two-tier system like Lok Sabha and Rajya Sabha, but, in various states there are no legislative council only legislative assembly. Only few are having bicameral structure but the other states have no legislative council because of political backwardness. We have to discuss legislation before passing fully in the interest and welfare of the people. In some education intelligence people are not able to elect to legislative assembly, they have to only reach through legislative council to discuss the legislations with their high profile of knowledge.
57. I submit that the Election Commission of India must also conduct a study on ‘Proportionate Representation System’. I state that proportional representation ensures minority groups a measure of representation proportionate to their electoral support. Systems of proportional representation have been adopted in many countries, including Belgium, Denmark, Finland, Greece, Hungary, Israel, Italy, Luxembourg, Norway, Russia, Spain, Sweden, and Switzerland.
58. It is more pertinent to mention that the Election Commission must also take due note of undemocratic and unethical actions by members of a Political Party who at time claim to be member of another Political Party as and when it suits them. I state that appropriate action against such members who belong to one particular party but claim to be of another party as per them whims.
59. I submit that I have not filed any other petition or prayed for the same relief in respect of this subject before this Hon’ble Court or any other Courts. That in the circumstances mentioned hereinabove this Writ Petition in being preferred by the Petitioner on the following grounds amongst other.
GROUNDS
The Petitioner is preferring the present Writ Petition on the following amongst other grounds: -
a. THAT, it is humbly submitted that this Hon’ble Court vide order dated 08.09.2017 was pleased to issue notice in a similar matter in SLP (C) No. 22373 of 2017 titled Khemchand Rajaram Koshti vs. Union of India &Ors.Wherein the similar issue has been challenged by the petitioner and the same is pending consideration before this Hon’ble Court.
b. THAT, the Petitioner before the Hon’ble High Court submitted that although Section 33A of the Representation of People Act, 1951 read with Rule 4(A) of the Conduct of the Election Rules makes provision for filing an affidavit in respect of information directed to be given pursuant to the judgment and order of this Hon’ble Court in Union of India v. Association for Democratic Reforms (2002) 5 SCC 294,nevertheless the said rule is not at all efficacious and does not enforce the directions of this Hon’ble Court in letter and spirit, inasmuch as the Returning Officer does not have the benefit of any supporting document in relation to the information required to be given under Section 33A.
c. THAT, the Hon’ble High Court vide the impugned order has summarily dismissed the writ petition, inter alia, on the ground that such a direction cannot be given by the High Court in view of the specific direction of this Hon’ble Court in ADR case to call for information by affidavit only.
d. THAT, this Hon’ble Court in the ADR case categorically laid down that the right to know about the candidates contesting election was a fundamental right under Article 19(1).
e. THAT, this Hon’ble Court in the ADR case issued directions under Articles 141 and Article 142 in Para 48 which reads as follows:
“48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past - if any, whether he is punished with imprisonment or fine.
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is named or cognisance is taken by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdue of any public financial institution or government dues.
(5) The educational qualifications of the candidate.”
f. THAT, when Section 33(B) was challenged before this Hon’ble Court in the PUCL case , this Hon’ble Court categorically held that the provisions of Section 33(B) was ultra vires and was an attempt to overreach the judgment of this Hon’ble Court in the ADR case. This Hon’ble Court in the judgment relied upon Reports of the Law Commission and held that:
“23… the candidate contesting the election should be asked to disclose his antecedents including assets and liabilities. Thereafter, it is for the voters to decide in whose favour he should cast his vote”
The Court concluded that -
“27…the voter must be aware of the antecedents of his candidate. Voter has too fast intelligent and rational vote according to this own criteria. A well-informed voter is the foundation of democratic structure. That information to a voter, who is the citizen of this country, is one facet of the fundamental right under Article 19(1)(a)”
g. THAT, it is respectfully submitted that despite the Hon’ble Court’s efforts to ensure transparency in the process of election and to make it mandatory for a candidate to disclose the information relating to criminal offences, liabilities and educational qualification, there is a complete void in the statutory mechanism to even have a prima facie verification of the contents of the affidavit submitted by the candidate.
h. THAT, it is submitted that in the absence of any requirement to give supporting document in support of the affidavit renders the very purpose of giving an affidavit otiose and nugatory, inasmuch as neither the Returning Officer nor the voter is in a position to appreciate whether the contents of the affidavit at all reflect truth.
i. THAT, it is submitted that in the event of furnishing documentary evidence with the affidavit, the Returning Officer would be in a position to effectively perform his duty under Section 36 of the Representation of People Act, 1951 to reject a nomination paper which contains false information.
j. THAT, it is submitted that this Hon’ble Court should make an independent assessment whether the sanctity of the affidavit is maintained in the absence of supporting documents.
k. THAT, it is submitted that an enlightened and informed citizenry would undoubtedly enhance democratic values.
l. THAT the Section 125A of the Representation of People Act, 1951, provides that furnishing false information filed by the candidate in the affidavit is an offence punishable by imprisonment upto six months or with fine. But, there is no clear provision for follow-up action in the event of candidates filing false affidavits. Hence, there are several complaints of the false statements in affidavits, which mislead the electors and further the format prescribe for the said affidavit does not contains / reveals sufficient information about the financial status of a candidate.
m. THAT the Section 31 of the Representation of the People Act, 1950, makes a person who in connection with preparation, revision or correction of an electoral roll or in connection with inclusion or exclusion of an electoral roll, makes a statement or declaration in writing, which is false; be punishable with imprisonment extending to one year or fine or both. However, there is no parallel provision in the RPA, 1951, to penalize a person making false declaration in connection with conduct of elections. There are several cases of false statements before election authorities in connection with conduct of elections.
n. THATin order to discourage motivated false statements before the election authorities, it would be useful to have a provision in the RPA, 1951, similar to Section 31 of the RPA, 1950.
o. THAT a candidate also have to furnish an affidavit, in the shape of Form 26 appended to the Conduct of Elections Rules, 1961, containing information regarding their criminal antecedents, if any, their assets, liabilities, and educational qualification. Section 125A of RPA, 1951 provides for the penalty for filing false affidavit but the offence is punishable by up to 6 months, or with fine, or with both.
p. THAT the ECI time and again has stressed on the importance of filing of true information in their affidavits by candidates standing for elections. The filing of false affidavits in matters of election can have extremely serious consequences as it affects the purity of elections. In order to make an informed choice, the elector has right to know the correct information of the candidates.
q. THAT this Hon’ble Court in the case of Krishnamoorthy v. Siva Kumar reported in (2009) 3 SCC 446, pertaining topanchayat elections, wherein this Hon’ble Court has held that failure to disclose complete information may amount to undue influence, and that incorrect and false information interferes with the free exercise of the electoral right of the voter.
r. THAT Filing of insufficient / false declaration about the background of candidate undermines the basic value of candidate disclosure, in turn affecting the right of the elector to know the antecedents of candidate. Therefore, it is necessary to mandate a fool proof affidavit format which would provide all the relevant / necessary / crucial information about the person’s financial background completely.
s. THAT it is submitted that vide 72 of 2002 Act amended the Representation of People Act, 1951, inter alia inserted Section 75A, Declaration of Assets and Liabilities, whereby it was mandated to furnish information regarding he movable and immovable property of which candidate, his spouse and his dependent children are jointly or severally owners or beneficiaries, his liabilities to any public financial institution; and his liabilities to the Central Government or the State Government, to the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.
t. THAT it is submitted that the Section 125A of the Representation of People Act, 1951, provides that furnishing false information filed by the candidate in the affidavit is an offence punishable by imprisonment upto six months or with fine. But, there is no clear provision for follow-up action in the event of candidates filing false affidavits. Hence, there are several complaints of the false statements in affidavits, which mislead the electors and further the format prescribe for the said affidavit does not contains / reveals sufficient information about the financial status of a candidate.
u. THAT the Section 31 of the Representation of the People Act, 1950, makes a person who in connection with preparation, revision or correction of an electoral roll or in connection with inclusion or exclusion of an electoral roll, makes a statement or declaration in writing, which is false; be punishable with imprisonment extending to one year or fine or both. However, there is no parallel provision in the RPA, 1951, to penalize a person making false declaration in connection with conduct of elections. There are several cases of false statements before election authorities in connection with conduct of elections.
v. THATin order to discourage motivated false statements before the election authorities, it would be useful to have a provision in the RPA, 1951, similar to Section 31 of the RPA, 1950.
w. THAT a candidate also has to furnish an affidavit, in the shape of Form 26 appended to the Conduct of Elections Rules, 1961, containing information regarding their criminal antecedents, if any, their assets, liabilities, and educational qualification. Section 125A of RPA, 1951 provides for the penalty for filing false affidavit but the offence is punishable by up to 6 months, or with fine, or with both.``
x. THAT the ECI time and again has stressed on the importance of filing of true information in their affidavits by candidates standing for elections. The filing of false affidavits in matters of election can have extremely serious consequences as it affects the purity of elections. In order to make an informed choice, the elector has right to know the correct information of the candidates.
y. THAT this Hon’ble Court in the case of Krishnamoorthy v. Siva Kumar reported in (2009) 3 SCC 446, pertaining to panchayat elections, wherein this Hon’ble Court has held that failure to disclose complete information may amount to undue influence, and that incorrect and false information interferes with the free exercise of the electoral right of the voter.
z. THAT filing of insufficient / false declaration about the background of candidate undermines the basic value of candidate disclosure, in turn affecting the right of the elector to know the antecedents of candidate. Therefore, it is necessary to mandate a fool proof affidavit format which would provide all the relevant / necessary / crucial information about the person’s financial background completely.
aa. THAT the Law Commission, on may 1999 vide its Report No. 170, recommended to make the candidates ineligible to contest in the elections unless the declares his /her assets both movable and immovable possessed by him/her, his/her spouse and dependent relations, and also to declare as to whether any charge in respect of any offence referred to in section 8B has been framed against him by any Criminal Court duly supported by an Affidavit.
ab. THAT in the year 2002, the Election Conduct Rules of 1961 was amended and Rule 4A was inserted whereby the as per the recommendations of the Law Commission Candidates are required to submit declaration in order to become eligible to contest in the Elections
ac. THAT as present the following details are to be given in the form of declaration along with supporting Affidavit:
i) Details regarding his / her Self, his / her Spouse and his / her Dependent.
ii) Details of court cases, if any, pending / disposed of wherein the candidate is / has been arrayed as an accused in offence punishable by imprisonment for two years or more wherein the charges are framed by a Court of competent jurisdiction.
iii) Details of court cases, if any, wherein the candidate is / has been convicted in offence(s) and has been sentenced to undergo imprisonment for one year or more
iv) Details of all his/her assets, both movable and immovable possessed by him/her, his/her spouse and dependent relations, duly supported by an affidavit
v) Details of liabilities / dues to Public Financial Institutions and Government, if any
vi) Details of profession or occupation, if any
vii) Educational Qualification, if any
ad. THAT the said format of the Affidavit is not sufficient to determine the reliability and trust worthiness of the candidates as the same is lacking to provide details as to the intentions / reasons of the Candidates contesting in the election and to enter into politics.
ae. THAT the present format of the declaration is not sufficient to determine the financial history of the candidates, as the same does was totally silent on the Financial History of the Candidate and the Source of Income for acquiring the properties.
af. THAT an affirmative action / indulgence of this Hon’ble it is the need of the hour in order to curb corruption present in politics and to conduct the election in a fair, transparent and just manner.
ag. THAT for those grounds and the grounds that would be urged at the time of hearing, in the interest of justice, Petitioner seeks to pray following directions/orders from this Hon’ble Court under Article 32 of the Constitution of India.
60. I submit that I had initially appraoched the Hon’ble Supreme Court by filing a Writ Petition under Article 32 of the Constutition of India. The said Writ Petition was numbered as W.P.(Civil) No. 549/2020. However, the Petitioner sought for liberty to approach the Madras High Court and the Hon’ble Supreme Court vide order dated 21.01.2021 was pleased to grant the permission to the Petitioner liberty to approach the Madras High Court.
61. The Petitioner humbly states that he is constrained to approach this Hon’ble Court seeking for issuance of appropriate directions or orders under Art 324 of the constitution of India in ensuring free and fair election taking note of the directions under the Table given hereunder ;-
TABLE – 1
| |
| Requirement to make necessary amendments to the format of Affidavit in order to make it mandatory for the Candidates to provide information with regard to their wealth and assets acquired during the date of joining into politics / getting membership in any political partyAND the source of legitimate income for acquiring the properties and its other sources in order to test the veracity of the wealth and assets provide by such persons. |
| Requirement to make amendments to present Affidavit / Declaration format and making it mandate for the candidate to provide full details about the Political Parties to which they belong and intention of the candidates in joining politics. |
| To publish the all said information in an easily accessible format for the general public. |
| To frame proper guidelines/policies in respect of election expenditures by the Political Parties to prevent corrupt practices and the candidates shall ensure by way of declaration that they shall not directly or indirectly indulge in corrupt practices like bribing money to the voters. |
| The contesting candidates shall ensure to file all the necessary documents in support of the averments made in the affidavit along with nomination paper before accepting the Nomination paper. |
| To categorize and monitor the property and possession details of all the politicians who wish to contest in elections |
| To maintain a column that contains all the details of public works contributed by the politicians who wish to contest in elections. |
It is therefore humbly prayed that this Hon’ble Court may be pleased to:-
A. To issue a Writ, Order or Direction more particularly a Writ in the nature of Writ of Mandamus directing the Respondents to implement the contents mentioned in the a Table - 1 of paragraph 61 of this affidavit to be included the model code of conduct of the elections in India by invoking Article 324 of the Constitution of India and pass such other further order (s) that this Hon’ble Court may deem fit and proper in the interest of justice.
Solemnly affirmed at Chennai Before me,
on this the day of October,2021
and signed his name in my presenceAdvocate : Madras
Page 35 of 35
No of Corrns
#Writ_Petition_PIL_seeking_for_electoral_reforms.
#சென்னை_உயர்நீதிமன்றத்தில்_
#தேர்தல்_சீர்திருத்தம்_குறித்தான_என்னுடைய_ரிட்மனு_ஏற்றுக்கொள்ளபட்டது.
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விரிவான தேர்தல் சீர்திருத்தம் வேண்டும் என்ற வகையில் உச்சநீதிமன்றத்தில் பொதுநல வழக்கு தொடுத்தேன். உச்சநீதிமன்றம் சென்னை உயர்நீதிமன்றத்தில் அரசியல் சாசன பிரிவு 226 இன் படி வழக்கு தொடுங்கள் என்று என்னிடம் பரிந்துரைத்தது.
அதன்படி நான் தாக்கல் செய்த தேர்தல் சீர்திருத்தத்திற்கான இந்தப் பொதுநல வழக்கு நேற்று சென்னை உயர்நீதிமன்றத்தில் முதல் அமர்வில் விசாரணைக்கு வந்தது. அந்த மனு ஏற்றுக்கொள்ளப்பட்டு தேர்தல் கமிஷனுக்கும் மத்திய அரசுக்கும் தாக்கீது அனுப்பப்பட்டது.
இந்தத் தேர்தல் சீர்திருத்த மனு மற்ற தேர்தல் சீர்திருத்த மனுவைவிட மாறுபட்டதாகும். சற்று விரிவானதும் கூட....
1. விகிதாச்சார பிரதிநிதித்துவம் இந்தியாவிற்கு ஏற்ற வகையில் நடத்த முடியுமா என்று பொது விவாதம் நடத்தப்பட வேண்டும். அதிகமான வாக்குகள் பெற்றும் பல கட்சிகள் தோல்வியை தழுவுகின்றன. அவர்களுக்கும் உரிய இடம் மக்கள் பிரதிநிதித்துவத்தின் படி நாடாளுமன்றத்துக்கும் சட்டமன்றத்துக்கும் செல்லவேண்டும்.
அந்த சூழ்நிலையில் விகிதாச்சாரப் பிரதிநிதித்துவம் இன்றைய காலகட்டத்தில் அவசியம். பல்வேறு தேசிய இனங்கள், பல்வேறு மொழிகள் இருக்கின்ற இந்தியாவில் இந்த விகிதாச்சாரப் பிரதிநிதித்துவம் அனைத்துத் தரப்பினருடைய அபிலாஷைகளைப் பூர்த்தி செய்யும் வகையில் இருக்க வேண்டும்.
2. வேட்பாளர்களுக்கு அரசாங்கமே செலவு செய்ய வேண்டும் என்று 1998-ல் முன்னாள் மத்திய அமைச்சரும் கம்யூனிஸ்ட் கட்சி தலைவருமான இந்திரஜித் குப்தா தலைமையில் அமைக்கப்பட்ட குழுவின் அறிக்கையின்படி வேட்பாளர்களுக்கு அரசே செலவு செய்ய வேண்டும். பல நாடுகளில் இது மாதிரி அரசே வேட்பாளர்களின் செலவுகளை ஏற்றுக்கொள்கின்றது.
3. ஆஸ்திரேலியாவில் நாடாளுமன்ற மாநிலங்களவையில் எல்லா மாநிலத்திற்கும் சமவாதியான பிரதிநித்துவம் உள்ளது. அது போல இந்தியாவில் எல்லா மாநிலங்களுக்கும் மாநிலங்களவையில் சமமான பிரதிநிதித்துவம் வழங்கப்பட வேண்டும்.
4. வாக்குகள் விற்பனைக்குக் கூடாது என்பதை தெளிவாக நடைமுறைப்படுத்தும் வகையில் சட்டங்கள் கடுமையாக்கப்படவேண்டும்.
5. சொத்து கணக்கு கிரிமினல் பின்னணி என வேட்பாளர்கள் தங்களது விவரங்களை வேட்பு மனு தாக்கல் செய்யும்போது அவர்கள் என்றைக்கு அரசியல் களத்திற்கு வந்தார்கள் என்றைக்கு அரசியலில் நுழைந்தார்கள் அன்றைக்கு அவர்களது சொத்து என்ன இன்றைக்கு அவர்களது சொத்து என்ன என்பது எல்லாம் விரிவாக சொல்லப்படவேண்டும். அதே போல் அரசியல் வருவதற்கு முன்னர் அன்றைக்கு குற்றவாளியாக இருந்தார்களா என்பது எல்லாம் விரிவாக சொல்லப்படவேண்டும். கடந்தகால பத்து பதினைந்து ஆண்டுகளுக்கு முன் உள்ள சொத்துக்களைச் சொல்வதனால் எந்தப் பயனும் கிடையாது. ஒரு வேட்பாளருடைய ஆதியும் அந்தமும் அவருடைய பொருளாதார நிலை, குற்றப் பின்னணியைத் தெளிவாகச் சொல்ல வேண்டும். அதற்கான நடைமுறையை கடுமையாக்க வேண்டும். கட்சியில் சேரும் நாளில் இருந்த சொத்து விவரங்களையும், கட்சியில் சேர்ந்த நோக்கத்தையும் வேட்பாளர்களின் வேட்பு மனுவில் தெரிவி்க்கும் வகையில் தேர்தல் விதிகளில் திருத்தம் கொண்டு வரக் கோரி வழக்கு
அரசியல் கட்சிகளுக்கான தேர்தல் செலவுகளை மாநில அரசுகளே ஏற்றுக்கொண்டு தணிக்கை மேற்கொள்ளும்பட்சத்தில் கருப்பு பணம் மற்றும் ஊழலை தடுக்க முடியும். சாதி அரசியலை தடுக்கும் வகையில் கொள்கை முடிவு எடுக்க உத்தரவிட வேண்டும்,
5. ஜாதி, மதம் போன்ற அடையாளங்களைக் குறிப்பிடக் கூடாது என்றாலும் மறைமுகமாக தேர்தல் களத்தில் இந்த அவசியமற்ற காரணிகள் தான் உள்ளன. ஒரு காலத்தில் தமிழகத்தைப் பொறுத்தவரையில் டி.டி.கிருஷ்ணமாச்சாரி என்ற சென்னை பிராமணர் திருச்செந்தூரில் நடந்த நாடாளுமன்றத் தேர்தலில் போட்டியிட்டார். பெருந்தலைவர் காமராஜர் குடியாத்தத்தில் போட்டியிட்டார். ஜி.ஆர்.தாமோதரன் சென்னை பல்கலைக்கழகத் முன்னாள் துணைவேந்தர் பொள்ளாச்சி தொகுதியில் போட்டியிட்டார். இப்படி எல்லாம் ஜாதி மதங்கள் எல்லைகளைத் தாண்டி போட்டியிட்ட காலங்கள் எல்லாம் மருவி இந்த ஜாதி தான் இந்தத் தொகுதியில் போட்டியிட வேண்டும் என்பது எழுதப்படாத சட்டமாக இருக்கின்றது. ஜாதி கூடாது என்கிறார்கள், மதம் கூடாது என்கிறார்கள் ஆனால் இதுபோன்று சூழலில் ஜாதியும் மதமும் தான் மேலும் மேலும் ஊக்குவிக்கின்ற நிலைக்கு எடுத்துச் செல்கின்றது.
இப்படியான இன்னும் பல விடயங்கள் உள்ளடங்கிய அளவில் தேர்தல் சீர்திருத்தம் விரிவாக வேண்டும் என்ற என்னுடைய மனு தாக்கல் செய்யப்பட்டது. இந்த வழக்கில் இந்திய தேர்தல் ஆணையம், மத்திய அரசு ஆகியவை பதிலளிக்க உயர் நீதிமன்றம் உத்தரவு.வழக்கு விசாரணை ஜனவரி 27 தள்ளிவைப்பு
விரிவான அந்த மனுவில் இன்னும் சொல்லப்பட்ட விரிவான ஆங்கில மனுவின் நகலை பின் விரிவாக பதிவு செய்கிறேன்.
கே.எஸ்.இராதாகிருஷ்ணன்#Ksradhakrishnan
#ksrpost
24-12-2021.
