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Ranabir Ray Choudhury

THE Supreme Court's recent action striking down certain measures taken by Parliament vis-à-vis the law on elections is of breathtaking importance when seen from the point of view of the perennial effort to withstand any assault of the "majority of numbers" on the average Indian citizen's "fundamental rights".

Stripped to the bones, what is the controversy all about? To quote Thursday's judgement in part (as reported in the press), the court said: "A voter is first a citizen of this country and, apart from statutory rights, he has fundamental rights conferred by the Constitution". Drawing attention to the specific case in hand, it added: "It is true that legislature is entitled to change the law with retrospective effect which forms the basis of a judicial decision. This exercise of power is subject to constitutional provisions; therefore, it (the legislature) cannot enact a law which is violative of fundamental rights".

Secondly, on the issue of the voter being properly informed before he exercises his right to vote, the court said: "Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them". It added: "Right to vote would be meaningless unless citizens are well-informed about the antecedent of a candidate", stating further: "There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have a competent legislature".

This is one side of the controversy and, on the face of it, there can be no sensible reason to fault the arguments cited above in favour of providing proper information to the voter before he exercises his or her franchise. As far as the generality of the Indian people is concerned, there can be no two opinions that, armed with the information which the court thinks should be made available to the electorate, the voter will be able to cast his vote more "efficiently" in the sense that there will be adequate "inputs" of the right sort to determine the electoral "output" of the citizen. As the court itself observed rhetorically: Was there any necessity to keep voters in the dark about any murder, dacoity or rape committed by a candidate or about his ill-gotten money?

However, strangely enough, there is an opposing camp to this point of view which feels that the Supreme Court has acted beyond its powers by questioning the "legislative competence" of Parliament. Even to someone not trained in the technicalities of the law, this is clearly not the case with the judgement in question. There is simply no threat at all to the "legislative competence" of Parliament; instead, what the court has said is that, while discharging its functions, as indicated in the Constitution, Parliament should abide by the Constitution — in this specific case (as determined by the court), uphold and protect the fundamental right of the citizen to information about the antecedents of a candidate before an election.

The BJP parliamentary party spokesman has said: "The BJP is for the sovereignty of Parliament in the matter of enacting legislation". A senior CPI(M) leader felt that the judgement was "unfortunate" and recalled that "the law (in question) was amended after thorough discussion among political parties", adding, "We found it the most appropriate way to deal with the issue". Of course, no one can challenge Parliament's sovereignty in the matter of enacting legislation. But legislation has to be enacted keeping the broad and specific tenets of the Republic's Constitution in mind. And, certainly, it is the business of the judiciary to pronounce whether a particular piece of legislation, drawn up the legislature, upholds what the Founding Fathers had in mind when they penned the Constitution, the debate on the changing nature, or the absence of it, of "the basic structure of the Constitution" notwithstanding?

The point cannot be over-emphasised that the Indian constitutional scheme of things is based upon an intricate web of checks and balances, and that once this "scheme" is disturbed, the beginnings of the end of the Indian Republic (as we know it today and as envisioned by the Constituent Assembly) will clearly become discernible. The country knows what happened during Indira Gandhi's Emergency (1975-77), specifically the extent she went to disturb the "checks and balances" scheme and make Parliament all-powerful in the governance of India. That this exercise was not what the people of the nation wanted — thereby, impliedly, making their preference known for the existing Constitutional scheme of things — was made amply clear in the series of "restorative" steps taken by the successor Janata Party Government after she was swept out of power in the 1977 Lok Sabha elections.

Incidentally, one of the three judges constituting the bench took strong exception to Parliament's amendment of Section 33 of the Representation of People Act, stating unequivocally that Parliament "had no legislative competence to direct the State or its instrumentality to disobey the orders of a court". The Judge said: "The legislature cannot declare that the law declared by the Supreme Court is not binding". (The offending amendment had said that notwithstanding anything contained in any judgement of any court or any order of the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder".) Clearly, what is under threat here is "judicial competence", and the judge concerned did well to point it out as being unacceptable in the Constitutional scheme of things.

Considering all this, the average Indian citizen must stand up and salute the Supreme Court for taking up the cudgels on his behalf in (in this specific case) his quest to know all the "bad points" of a candidate who has come to his door asking for his vote.

But of course, the nation knows that the road ahead will be long and difficult because of the increasing pressure of those elements in society (rapidly growing in number) who are simply not worthy of wearing the mantle of a lawmaker but who are desperate to don that dress for reasons of their own.

Taking a cue from the Emergency days, who knows, the main threat to the fabric of a democratic India may lie not in the emergence of an armed-to-the-teeth strongman (as in some countries where power has been taken over by a dictator) but in the emergence of an impatient group of lawmakers representing the "will of the brute majority" who will not hesitate to cast aside with impunity the intricate "checks and balances" system in the Indian polity to attain their own misdirected ends.

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