The Telegraph
Since 1st March, 1999
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Flawless in principle, the Supreme Courtís decision on electoral reforms ignores a reality in which the reinforced laws will put the honest at a disadvantage

Unexceptionable principles are not necessarily practical ones, especially since India is not located in the heaven of the ideal. The Supreme Courtís insistence that the legislative amendments on electoral reforms be withdrawn is structured on the ideal, while turning its face away from the everyday real. That there should be such a long history of wrangling among the Election Commission, the legislature and the courts about the necessity or otherwise of election candidates declaring their assets is a commentary on the real state of things. Indiaís arsenal of legislations, larger perhaps than in most countries, makes it binding upon citizens to declare their assets. It is clear from the debate itself that such laws have not had their desired effect. If it has been possible to get away without declaring assets for so long, a new law is hardly likely to make a difference. What it will achieve, however, is greater harassment of the law-abiding; those who habitually make themselves accountable will be the ones under the scrutiny of reinforced laws, soft targets for dutiful law-enforcers. As for criminal records, a conviction should certainly be declared, but charges can be manufactured, they do not comprise culpability. In a system that is so deeply rotten, homing in only on candidates running for elections is ultimately a cosmetic gesture at cleansing: it will neither separate the grain from the chaff nor will it turn law-breakers into morally upright legislators.

Law is seldom among the subjects of common parlance in the most advanced countries, perhaps because a certain standard of law-abiding behaviour is a mark of civilized society, whether these laws derive from code books, convention or from common sense. The very phenomenon of over-legislation exposes uncertainties that lie at the basis of Indiaís polity, part of which is related to the constantly changing dynamics of domination of one segment over another. This is inevitable in a still immature democracy with strikingly diverse, emergent social groups. But the worst effect of over-legislation manifests itself elsewhere. Laws may lie sleeping while law-breakers go their own blithe way, until politics motivates their application against selected targets. Less inventiveness in making laws, and a greater assiduity in applying them impartially and stringently would be the first step in restoring a balance in the system.

What is most disturbing about this recent episode, however, is the role the court seems to have taken. The court is not an equal player in this exchange between the EC and the legislature, it stands outside the arena and pronounces on the legitimacy of a law with relation to the statute book or the Constitution. Active participation in the law-making process does not fall within the purview of the court, just as it cannot be seen to be participating in policy-making of any kind. It is not expected, for example, that a court should have to instruct an educational board on its language policy, as the Calcutta high court has recently done. So even though the question of electoral reform is of overwhelming importance, it will ultimately have to be worked out by the legislators and the Election Commission.

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