The Telegraph
Since 1st March, 1999
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Poll clean-up row back in apex court

New Delhi, Sept. 20: In another twist to the poll-reforms tug-of-war, the Supreme Court today issued notices to the Centre and the Election Commission on a petition challenging the Ordinance that shelved them.

The Supreme Court in May had upheld a Delhi High Court directive, saying all candidates would have to disclose their criminal antecedents, if any, educational qualifications and assets and liabilities at the time of filing nomination. But the Union government, which had appealed against the reforms, brought an Ordinance in August against the disclosures.

A division bench of Justices M.B. Shah and D.M. Dharmadhikari today issued the notices on a People’s Union for Civil Liberties petition, but did not give an interim stay on grounds that it was not required “at this stage”.

The order came after solicitor general Harish Salve pleaded that a stay was not required right away as no new elections had been announced. But the court fixed October 8 for final arguments, after which the Ordinance might be struck down or upheld or modified. Salve also told the court that hearings should be speeded up as elections in Gujarat were likely in November-December.

The petitioners, PUCL and Lok Satta, argued that the Ordinance bypassed the apex court’s May 2 directions, which mandated that the poll panel take the three details on an affidavit from aspiring contestants. Instead, only the existing provision that a candidate would be disqualified if he/she was convicted in a criminal case for more than two years was retained.

Appearing for the petitioners, retired Delhi High Court chief justice Rajinder Sachar and senior counsel P.P. Rao argued that an interim stay be given at least on Section 33 (B) of the Ordinance amending the Representation of People’s Act. This provision gave the government powers to legislate on several issues relating to elections, they said. The petitioners contended that the government could not alter the apex court’s directives and that they were binding on it.

Further, “fundamental rights of the voters cannot be taken away by any legislation, less by the Ordinance”.

The President had promulgated the Ordinance on August 24 substituting the poll panel’s guidelines issued after the apex court order. The panel had said a candidate would be disqualified if he/she failed to disclose the information. But the guidelines are now ineffective and deemed not to have been effected at all.

The petitioners contended that Section 33 (B) of the Ordinance stated that “not withstanding any judgment, decree or order of any court or any order or direction issued by 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”. This violated the fundamental rights of voters and the directions of the apex court, they said.

The petition prayed that the Ordinance and the amendments to the Representation of People’s Act be declared as “ultravires, unconstitutional, void and infringing the doctrine of separation of powers as well as basic structures of the Constitution”.

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