You are on page 1of 37

CASE NO.

: Appeal (civil) 7178 of 2001 Writ Petition (civil) 294 of 2001


PETITIONER: UNION OF INDIA Vs. RESPONDENT: AS&SOACNIOATTHIEORN FOR
DEMOCRATIC REFORMS DATE OF JUDGMENT: 02/05/2002 BENCH: M.B. Shah,
Bisheshwar Prasad Singh & H.K. Sema JUDGMENT: Shah, J. Short but
important question involved in these matters isin a nation wedded to
republican and democratic form of government, where election as a
Member of Parliament or as a Member of Legislative Assembly is of
utmost importance for governance of the country, whether, before
casting votes, voters have a right to know relevant particulars of
their candidates? Further connected question iswhether the High Court
had jurisdiction to issue directions, as stated below, in a writ
petition filed under Article 226 of the Constitution of India? Before
dealing with the aforesaid questions, we would refer to the brief facts
as alleged by the Petitioner-Association for Democratic Reforms in Writ
Petition No.7257 of 1999 filed before the High Court of Delhi for
direction to implement the recommendations made by the Law Commission
in its 170th Report and to make necessary changes under Rule 4 of the
Conduct of Election Rules, 1961. It has been pointed out that Law
Commission of India had, at the request of Government of India,
undertaken comprehensive study of the measures required to expedite
hearing of election petitions and to have a thorough review of the
Representation of the People Act, 1951 (hereinafter referred to as "the
Act") so as to make the electoral process more fair, transparent and
equitable and to reduce the distortions and evils that have crept into
the Indian electoral system and to identify the areas where the legal
provisions required strengthening and improvement. It is pointed out
that Law Commission has made recommendation for debarring a candidate
from contesting an election if charges have been framed against him by
a Court in respect of certain offences and necessity for a candidate
seeking to contest election to furnish details regarding criminal
cases, if any, pending against him. It has also suggested that true and
correct statement of assets owned by the candidate, his/her spouse and
dependant relations should also be disclosed. Petitioner has also
referred Para 6.2 of the report of the Vohra Committee of the
Government of India, Ministry of Home Affairs, which reads as follows:
"6.2 Like the Director CBI, the DIB has also stated that there has been
a rapid spread and growth of criminal gangs, armed senas, drug Mafias,
smuggling gang, drug peddlers and economic lobbies in the country which
have, over the years, developed an extensive network of contacts with
the bureaucrats/Government functionaries at the local levels,
politicians, media persons and strategically located individuals in the
non State sector. Some of these Syndicates also have international
linkages, including the foreign intelligence agencies. In this context
the DIB has given the following examples (i) In certain States like
Bihar, Haryana and UP, these gangs enjoy the patronage of local level
politicians, cutting across party lines and the protection of
Governmental functionaries. Some political leaders become the leaders
of these gangs, armed senas and over the years get themselves elected
to local bodies, State Assemblies and the national Parliament.
Resultantly, such elements have acquired considerable political clout
seriously jeopardising the smooth functioning of the administration and
the safety of life and property of the common man causing a sense of
despair and alienation among the people; (ii) The big smuggling
Syndicates having international linkages have spread into and infected
the various economic and financial activities, including havala
transactions, circulation of black money and operations of a vicious
parallel economy causing serious damage to the economic fibre of the
country. These Syndicates have acquired substantial financial and
muscle power and social respectability and have successfully corrupted
the Government machinery at all levels and yield enough influence to
make the task of Investigating and Prosecuting agencies extremely
difficult; even the members of the Judicial system have not escaped the
embrace of the Mafia; (iii) Certain elements of the Mafia have shifted
to narcotics, drugs and weapon smuggling and established narco-
terrorism networks specially in the States of J&K, Punjab, Gujarat and
Maharashtra. The cost of contesting elections has thrown the politician
into the lap of these elements and led to a grave compromise by
officials of the preventive/detective systems. The virus has spread to
almost all the centres in the country, the coastal and the border
States have been particularly affected; (iv) The Bombay bomb blast case
and the communal riots in Surat and Ahmedabad have demonstrated how the
India underworld has been exploited by the Pak ISI and the latter's
network in UAE to cause sabotage subversion and communal tension in
various parts of the country. The investigations into the Bombay bomb
blast cases have revealed expensive linkages of the underworld in the
various governmental agencies, political circles, business sector and
the film world." It is also contended that despite the Reports of the
Law Commission and Vohra Committee, successive governments have failed
to take any action and, therefore, petition was filed for
implementation of the said reports and for a direction to the Election
Commission to make mandatory for every candidate to provide information
by amending Form 2-A to 2-E prescribed under the Conduct of Election
Rules, 1961. After hearing the parties, the High Court by judgment and
order dated 2nd November, 2000, held that it is the function of the
Parliament to make necessary amendments in the Representation of the
People Act, 1951 or the Election Rules and, therefore, Court cannot
pass any order, as prayed, for amending the Act or the Rules. However,
the Court consideredwhether or not an elector, a citizen of the country
has a fundamental right to receive the information regarding the
criminal activities of a candidate to the Lok Sabha or Legislative
Assembly for making an estimate for himself as to whether the person
who is contesting the election has a background making him worthy of
his vote, by peeping into the past of the candidate. After considering
the relevant submissions and the reports as well as the say of Election
Commission, the High Court held that for making a right choice, it is
essential that the past of the candidate should not be kept in the dark
as it is not in the interest of the democracy and well being of the
country. The Court directed the Election Commission to secure to voters
the following information pertaining to each of the candidates
contesting election to the Parliament and to the State Legislature and
the parties they represent: 1. Whether the candidate is accused of any
offence(s) punishable with imprisonment? If so, the details thereof. 2.
Assets possessed by a candidate, his or her spouse and dependant
relations? 3. Facts giving insight to candidate's competence, capacity
and suitability for acting as parliamentarian or legislator including
details of his/her educational qualifications; 4. Information which the
election commission considers necessary for judging the capacity and
capability of the political party fielding the candidate for election
to Parliament or the State Legislature. That order is challenged by
Union of India by filing the present appeal. On behalf of Indian
National Congress I.A. No.2 of 2001 is also filed for
impleadment/intervention in the appeal filed by the Union of India by
inter alia contending that the High Court ought to have directed the
writ petitioners to approach the Parliament for appropriate amendments
to the Act instead of directing the Election Commission of India to
implement the same. I.A. for intervention is granted. Further, People's
Union for Civil Liberties (PUCL) has filed Writ Petition No.294 of 2001
under Article 32 of the Constitution praying that writ, order or
direction be issued to the respondents (a) to bring in such measures
which provide for declaration of assets by the candidate for the
elections and for such mandatory declaration every year during the
tenure as an elected representative as MP/MLA; (b) to bring in such
measures which provide for declaration by the candidate contesting
election whether any charge in respect of any offence has been framed
against him/her; and (c) to frame such guidelines under Article 141 of
the Constitution by taking into consideration 170th Report of Law
Commission of India. SUBMISSIONS: We have heard the learned counsel for
the parties at length. Mr. Harish N. Salve, learned Solicitor General
appearing for Union of India submitted that till suitable amendments
are made in the Act and Rules thereunder, the High Court should not
have given any direction to the Election Commission. He referred to
various Sections of the Act and submitted that Section 8 provides for
disqualification on conviction for certain offences and Section 8A
provides for disqualification on ground of corrupt practices. Section
32 provides nomination of candidate for election if he is qualified to
be chosen to fill that seat under the provisions of the Constitution
and the Act or under the provisions of the Government of Union
Territories Act, 1963. Thereafter, elaborate procedure is prescribed
for presentation of nomination paper and requirements for a valid
nomination. Finally, Section 36 provides for scrutiny of nominations
and empowers the returning officer to reject any nomination on the
following grounds (a) that on the date fixed for the scrutiny of
nominations the candidate either is not qualified or is disqualified
for being chosen to fill the seat under any of the following provisions
that may be applicable, namely Articles 84, 102, 173 and 191, Part II
of this Act and sections 4 and 14 of the Government of Union
Territories Act, 1963 (20 of 1963); or (b) that there has been a
failure to comply with any of the provisions of Section 33 or Section
34; or (c) that the signature of the candidate or the proposer on the
nomination paper is not genuine. It is his submission that it is for
the political parties to decide whether such amendments should be
brought and carried out in the Act and the Rules. He further submitted
that as the Act or the Rules nowhere disqualify a candidate for non-
disclosure of the assets or pending charge in a criminal case and,
therefore, directions given by the High Court would be of no
consequence and such directions ought not to have been issued.
Supplementing the aforesaid submission, Mr. Ashwini Kumar, learned
senior counsel appearing on behalf of intervenorIndian National
Congress submitted that the Constituent Assembly had discussed and
negatived requirement of educational qualification and possession of
the assets to contest election. For that purpose, he referred to the
Debates in the Constituent Assembly. He submitted that 3/4th of the
population is illiterate and providing education as a qualification for
contesting election was not accepted by the Constituent Assembly.
Similarly, prescribing of property qualification for the candidates to
contest election was also negatived by the Constituent Assembly. He,
therefore, submitted that furnishing of information regarding assets
and educational qualification of a candidate is not at all relevant for
contesting election and even for casting votes. Voters are not
influenced by the educational qualification or by possession of wealth
by a contesting candidate. It is his say that the party whom he
represents is interested in purity of election and wants to stop entry
of criminals in politics or its criminalisation but it is for the
Parliament to decide the said question. It is submitted that delicate
balance is required to be maintained with regard to the jurisdiction of
the Parliament and that of Courts and once the Parliament has not
amended the Act or the Rules despite the recommendation made by the Law
Commission or the report submitted by the Vohra Committee, there was no
question of giving any direction by the High Court to the Election
Commission. Mr. K.K. Venugopal, learned senior counsel appearing on
behalf of Election Commission exhaustively referred to the counter
affidavit filed on behalf of Election Commission. At this stage, we
would refer to some part from the said affidavit. It is stated that
issue of 'persons with criminal background' contesting election has
been engaging the attention of the Election Commission of India for
quite some time; even Parliament in the debates on 50 years of
independence and the resolution passed in its special Session in
August, 1997 had shown a great concern about the increasing
criminalisation of politics; it is widely believed that there is
criminal nexus between the political parties and anti-social elements
which is leading to criminalisation of politics; the criminals
themselves are now joining election fray and often even getting elected
in the process. Some of them have even adorned ministerial berths and,
thus, law breakers have become law makers. The Commission has suggested
that candidate should be required to furnish information in respect of
(a) all cases in which he has been convicted of any offence and
punished with any kind of imprisonment or amount of fine, and whether
any appeal or application for review is pending in respect of any such
cases of conviction, and (b) all pending cases in which he is involved
before any court of law in any offence, punishable with imprisonment
for two years or more, and where the appropriate court has on prima
facie satisfaction framed the charges against him for proceeding with
the trial. For declaration of assets, it has been suggested by the
Election Commission that candidate should be asked to disclose his
assets, all immovable and movable properties which would include cash,
bank balances, fixed deposits and other savings such as shares, stocks,
debentures etc. Candidate also should be directed to disclose for
voters' information, not only his assets but his liabilities like over-
dues to public financial institutions and government dues and charges
on his/her properties. For other directions issued by the High Court,
it has been pointed out that it is for the political parties to project
the capacity and capability of a candidate and that directions issued
by the High Court are required to be set aside. Finally, the Election
Commission has suggested as under: "I. Each candidate for election to
Parliament or a State Legislature should submit, along with his
nomination paper, a duly sworn affidavit, for the truth of which he is
liable, as a necessary part of his nomination paper, furnishing
therein, information on the following aspects in relation to his
candidature: (i) whether the candidate is convicted of any offence in
any case in the past, and punished with imprisonment or fine; if so,
the details thereof, together with the details of any pending appeals
or applications for revision in any such cases of conviction; (ii)
whether the candidate is accused in any pending case, of any offence
punishable with imprisonment for two years or more, and in which
charges have been framed against him by the competent court of law, if
so, the details thereof, together with the details of any pending
appeals or applications for revision in respect of the charges framed
in any such cases; (iii) whether the candidate is an income tax and/or
wealth tax assessee and has been paying his tax(es) and filing his
returns regularly, wherever he is liable, and if so, the financial year
for which the last income tax/wealth tax return has been filed; (iv)
the liabilities of the candidate, his/her spouse and minor children;
that is to say, over-dues to any public financial institutions, any
government dues, and charges on his/her properties; (v) the educational
qualifications of the candidate. II. The information by each candidate
in respect of all the foregoing aspects shall be furnished by the
candidate in a format to be prescribed by the Election Commission and
shall be supported by a duly sworn affidavit, making him responsible
for the correctness of the information so furnished and liable for any
false statement. III. The information so furnished by each candidate in
the prescribed format and supported by a duly sworn affidavit shall be
disseminated by the Election Commission, through the respective
Returning Officers, by displaying the same on the notice board of the
Returning Officer and making the copies thereof available freely and
liberally to all other contesting candidates and the representatives of
the print and electronic media. If any rival candidate furnishes
information to the contrary, by means of a duly sworn affidavit, then
such affidavit of the rival candidate may also be disseminated
alongwith the affidavit of the candidate concerned. The Court may lay
down that it would be mandatory for each candidate for election to
Parliament or State Legislature, to file along with his nomination
paper, the aforesaid duly sworn affidavit, furnishing therein the
information on the aspects detailed above and that the nomination paper
of such a candidate who fails or refuges to file the required affidavit
or files an incomplete affidavit shall be deemed to be an incomplete
nomination paper within the meaning of section 33(1) of the
Representation of the People Act, 1951 and shall suffer consequences
according to law. The aforesaid suggestions made by the Election
Commission would certainly mean that except certain modifications,
Election Commission virtually supports the directions issued by the
High Court and that candidates must be directed to furnish necessary
information with regard to pending criminal cases as well as assets and
educational qualification. Mr. Rajinder Sachhar, learned senior counsel
appearing on behalf of the petitioners relied upon the decision
rendered by this Court in Vineet Narain and Others v. Union of India
and Another [(1998) 1 SCC 226] and submitted that considering the
widespread illiteracy of the voters, and at the same time their overall
culture and character, if they are well-informed about the candidates
contesting election as M.P. or M.L.A., they would be in a position to
decide independantly to cast their votes in favour of a candidate who,
according to them, is much more efficient to discharge his functions as
M.P. or M.L.A. He, therefore, submitted that presuming that the High
Court has no jurisdiction to pass orders to fill in the gaps, this
Court can do so by exercising its powers under Article 142 which have
the effect of law. In Vineet Narain's case (Supra), this Court dealt
with the writ petitions under Article 32 of the Constitution of India
brought in public interest wherein allegation was against the Central
Bureau of Investigation (CBI) of inertia in matters where accusation
made was against high dignitaries. Primary question considered
waswhether it was within the domain of judicial review and it could be
an effective instrument for activating the investigating process which
is under the control of the executive? While discussing the powers of
this Court, it was observed: "The powers conferred on this Court by the
Constitution are ample to remedy this defect and to ensure enforcement
of the concept of equality. There are ample powers conferred by Article
32 read with Article 142 to make orders which have the effect of law by
virtue of Article 141 and there is mandate to all authorities to act in
aid of the orders of this Court as provided in Article 144 of the
Constitution. In a catena of decisions of this Court, this power has
been recognised and exercised, if need be, by issuing necessary
directions to fill the vacuum till such time the legislature steps in
to cover the gap or the executive discharges its role." [Emphasis
supplied] In paragraph 51, the Court pointed out previous precedents
for exercise of such power: "In exercise of the powers of this Court
under Article 32 read with Article 142, guidelines and directions have
been issued in a large number of cases and a brief reference to a few
of them is sufficient. In Erach Sam Kanga v. Union of India [W.P. No.
2632 of 1978 decided on 20.3.1979] the Constitution Bench laid down
certain guidelines relating to the Emigration Act. In Lakshmi Kant
Pandey v. Union of India [(1984) 2 SCC 244] (In re, Foreign Adoption),
guidelines for adoption of minor children by foreigners were laid down.
Similarly in State of W.B. v. Sampat Lal [(1985) 1 SCC 317], K.
Veeraswami v. Union of India [(1991) 3 SCC 655] Union Carbide Corpn. v.
Union of India [(1991) 4 SCC 584, Delhi Judicial Service Association v.
State of Gujarat (Nadiad Case) [(1991) 4 SCC 406], Delhi Development
Authority v. Skipper Construction Co. (P) Ltd. [(1996) 4 SCC 622] and
Dinesh Trivedi, M.P. v. Union of India [(1997) 4 SCC 306] guidelines
were laid down having the effect of law, requiring rigid compliance. In
Supreme Court Advocates-on-Record Association v. Union of India (IInd
Judges case) [(1993) 4 SCC 441], a nine-Judge Bench laid down
guidelines and norms for the appointment and transfer of Judges which
are being rigidly followed in the matter of appointments of High Court
and Supreme Court Judges and transfer of High Court Judges. More
recently in Vishaka v. State of Rajasthan [(1997) 6 SCC 241] elaborate
guidelines have been laid down for observance in workplaces relating to
sexual harassment of working women. In Vishaka (supra) it was said (SCC
pp. 249-50, para 11) "11. The obligation of this Court under Article 32
of the Constitution for the enforcement of these fundamental rights in
the absence of legislation must be viewed along with the role of
judiciary envisaged in the Beijing Statement of Principles of the
Independence of Judiciary in the LAWASIA region. These principles were
accepted by the Chief Justices of Asia and the Pacific at Beijing in
1995 (As amended at Manila, 28th August, 1997) as those representing
the minimum standards necessary to be observed in order to maintain the
independence and effective functioning of the judiciary. The objectives
of the judiciary mentioned in the Beijing Statement are: "Objectives of
the Judiciary: 10. The objectives and functions of the Judiciary
include the following: (a) to ensure that all persons are able to live
securely under the rule of law; (b) to promote, within the proper
limits of the judicial function, the observance and the attainment of
human rights; and (c) to administer the law impartially among persons
and between persons and the State." Thus, an exercise of this kind by
the court is now a well- settled practice which has taken firm roots in
our constitutional jurisprudence. This exercise is essential to fill
the void in the absence of suitable legislation to cover the field."
Ms. Kamini Jaiswal, learned counsel appearing on behalf of respondents
in support of the decision rendered by the High Court referred to the
decision in Kihoto Hollohan v. Zachillhu and Others [1992 Supp (2) SCC
651] wherein while considering the validity of the Tenth Schedule of
the Constitution, the Court observed "democracy is a part of the basic
structure of our Constitution; and rule of law, and free and fair
elections are basic features of democracy. One of the postulates of
free and fair elections is provisions for resolution of election
disputes as also adjudication of disputes relating to subsequent dis-
qualifications by an independant authority". She, therefore, contended
that for free and fair elections and for survival of democracy, entire
history, background and the antecedents of the candidate are required
to be disclosed to the voters so that they can judiciously decide in
whose favour they should vote; otherwise, there would not be true
reflection of electoral mandate. For interpreting Article 324, she
submitted that this provision outlines broad and general principles
giving power to the Election Commission and it should be interpreted in
a broad perspective as held by this Court in various decisions. In
these matters, questions requiring consideration are 1. Whether
Election Commission is empowered to issue directions as ordered by the
High Court? 2. Whether a voter a citizen of this country has right to
get relevant information, such as, assets, qualification and
involvement in offence for being educated and informed for judging the
suitability of a candidate contesting election as MP or MLA? For
deciding the aforesaid questions, we would proceed on the following
accepted legal position. At the outset, we would say that it is not
possible for this Court to give any directions for amending the Act or
the statutory Rules. It is for the Parliament to amend the Act and the
Rules. It is also established law that no direction can be given, which
would be contrary to the Act and the Rules. However, it is equally
settled that in case when the Act or Rules are silent on a particular
subject and the Authority implementing the same has constitutional or
statutory power to implement it, the Court can necessarily issue
directions or orders on the said subject to fill the vacuum or void
till the suitable law is enacted. Further, it is to be stated that (a)
one of the basic structure of our Constitution is 'republican and
democratic form of government'; (b) the election to the House of People
and the Legislative Assembly is on the basis of adults suffrage, that
is to say, every person who is citizen of India and who is not less
than 18 years of age on such date as may be fixed in that behalf by or
under any Law made by the appropriate Legislature and is not otherwise
disqualified under the Constitution or any law on the ground of non-
residence, unsoundness of mind, crime or corrupt or illegal practice,
shall be entitled to be registered as a voter at any such election
(Article 326); and (c) holding of any asset (immovable or movable) or
any educational qualification is not the eligibility criteria to
contest election; and (d) Under Article 324, the superintendence,
direction and control of the 'conduct of all elections' to Parliament
and to the Legislature of every State vests in Election Commission. The
phrase 'conduct of elections' is held to be of wide amplitude which
would include power to make all necessary provisions for conducting
free and fair elections. Question No.1 Whether Election Commission is
empowered to issue directions as ordered by the High Court? For health
of democracy and fair election, whether the disclosure of assets by a
candidate, his/her qualification and particulars regarding involvement
in criminal cases are necessary for informing voters, may be
illiterate, so that they can decide intelligently, whom to vote? In our
opinion, the decision of even illiterate voter, if properly educated
and informed about the contesting candidate, would be based on his own
relevant criteria of selecting a candidate. In democracy, periodical
elections are conducted for having efficient governance for the country
and for the benefit of citizensvoters. In a democratic form of
government, voters are of utmost importance. They have right to elect
or re-elect on the basis of the antecedents and past performance of the
candidate. He has choice of deciding whether holding of educational
qualification or holding of property is relevant for electing or re-
electing a person to be his representative. Voter has to decide whether
he should cast vote in favour of a candidate who is involved in
criminal case. For maintaining purity of elections and healthy
democracy, voters are required to be educated and well informed about
the contesting candidates. Such information would include assets held
by the candidate, his qualification including educational qualification
and antecedents of his life including whether he was involved in a
criminal case and if the case is decidedits result, if pending whether
charge is framed or cognizance is taken by the Court? There is no
necessity of suppressing the relevant facts from the voters. The
Constitution Bench of this Court in Mohinder Singh Gill v. The Chief
Election Commissioner, New Delhi [(1978) 1 SCC 405] while dealing with
a contention that Election Commission has no power to cancel the
election and direct re-poll, referred to the pervasive philosophy of
democratic elections which Sir Winston Churchill vivified in matchless
word: "At the bottom of all tributes paid to democracy is the little
man, walking into a little booth, with a little pencil, making a little
cross on a little bit of paperno amount of rhetoric or voluminous
discussion can possibly diminish the overwhelming importance of the
point. If we may add, the little, large Indian shall not be hijacked
from the course of free and fair elections by mob muscle methods, or
subtle perversion of discretion by men 'dressed in little, brief
authority'. For 'be you ever so high, the law is above you'. The moral
may be stated with telling terseness in the words of William Pitt:
'Where laws end, tyranny begins'. Embracing both these mandates and
emphasizing their combined effect is the elemental law and politics of
Power best expressed by Benjamin Disraeli [Vivian Grey, BK VI Ch 7]: I
repeat . . . that all power is a trust that we are accountable for its
exercise that, from the people and for the people, all springs, and all
must exist." Further, the Court in (para 23) observed thus: "Democracy
is government by the people. It is a continual participative operation,
not a cataclysmic, periodic exercise. The little man, in his multitude,
marking his vote at the poll does a social audit of his Parliament plus
political choice of this proxy. Although the full flower of
participative Government rarely blossoms, the minimum credential of
popular government is appeal to the people after every term for a
renewal of confidence. So we have adult franchise and general elections
as constitutional compulsions. 'The right of election is the very
essence of the constitution' (Junius). It needs little argument to hold
that the heart of the Parliamentary system is free and fair elections
periodically held, based on adult franchise, although social and
economic democracy may demand much more." Thereafter, the Court dealt
with the scope of Article 324 and observed (in para 39) thus: ".Article
324, in our view, operates in areas left unoccupied by legislation and
the words 'superintendence, direction and control, as well as 'conduct
of all elections', are the broadest terms.." The Court further held:
"Our conclusion on this limb of the contention is that Article 324 is
wide enough to supplement the powers under the Act, as here, but
subject to the several conditions on its exercise we have set out." The
Court also held (in para 77) thus: "We have been told that wherever the
Parliament has intended a hearing it has said so in the Act and the
rules and inferentially where it has not specificated it is otiose.
There is no such sequitur. The silence of a statute has no exclusionary
effect except where it flows from necessary implication. Article 324
vests a wide power and where some direct consequence on candidate
emanates from its exercise we must read this functional obligation." In
concluding portion of paragraph 92, the Court inter alia observed thus:
"1(b) Election, in this context, has a very wide connotation commencing
from the Presidential notification calling upon the electorate to elect
and culminating in the final declaration of the returned candidate.
2(a) The Constitution contemplates a free and fair election and vests
comprehensive responsibilities of superintendence, direction and
control of the conduct of elections in the Election Commission. This
responsibility may cover powers, duties and functions of many sorts,
administrative or other, depending on the circumstances. (b) Two
limitations at least are laid on its plenary character in the exercise
thereof. Firstly, when Parliament or any State Legislature has made
valid law relating to or in connection with elections, the Commission,
shall act in conformity with, not in violation of, such provisions but
where such law is silent Article 324 is a reservoir of power to act for
the avowed purpose of, not divorced from, pushing forward a free and
fair election with expedition" In concurring judgment, Goswami, J. with
regard to Article 324 observed (in para 113) thus: ".Since the conduct
of all elections to the various legislative bodies and to the offices
of the President and the Vice-President is vested under Article 324 (1)
in the Election Commission, the framers of the Constitution took care
to leaving scope for exercise of residuary power by the Commission, in
its own right, as a creature of the Constitution, in the infinite
variety of situations that may emerge from time to time in such a large
democracy as ours. Every contingency could not be foreseen, or
anticipated with precision. That is why there is no hedging in Article
324. The Commission may be required to cope with some situation which
may not be provided for in the enacted laws and the rules." [Emphasis
supplied] The aforesaid decision of the Constitution Bench unreservedly
lays down that in democracy the little man voter has overwhelming
importance on the point and the little-large Indian (voter) should not
be hijacked from the course of free and fair elections by subtle
perversion of discretion of casting votes. In a continual participative
operation of periodical election, the voter does a social audit of his
candidate and for such audit he must be well informed about the past of
his candidate. Further, Article 324 operates in areas left unoccupied
by legislation and the words 'superintendence, direction and control'
as well as 'conduct of all elections' are the broadest terms. The
silence of statute has no exclusionary effect except where it flows
from necessary implication. Therefore, in our view, it would be
difficult to accept the contention raised by Mr. Salve, learned
Solicitor General and Mr. Ashwini Kumar, learned senior counsel
appearing on behalf of Intervenor that if there is no provision in the
Act or the Rules, the High Court ought not to have issued such
directions to the Election Commission. It is settled that the power of
the Commission is plenary in character in exercise thereof. In a
statutory provisions or rules, it is known that every contingency could
not be foreseen or anticipated with precision, therefore, Commission
can cope with situation where the field is unoccupied by issuing
necessary orders. Further, this Court in Kanhiya Lal Omar v. R.K.
Trivedi and others [(1985) 4 SCC 628] dealt with the Constitutional
validity of the Election Symbols (Reservation and Allotment) Order,
1968 which was issued by the Election Commission in its plenary
exercise of power under Article 324 of the Constitution read with Rules
5 and 10 of the Conduct of Election Rules, 1961. The challenge was on
the ground that Symbols Order which is legislative in character could
not be issued by the Commission because the Commission is not entrusted
by law the power to issue such an order regarding the specification,
reservation and allotment of symbol that may be chosen by the
candidates at elections in parliamentary and Assembly constituencies.
It was urged that Article 324 of the Constitution which vests the power
of superintendence, direction and control of all elections to
Parliament and to the Legislature of a State in the Commission cannot
be construed as conferring the power on the Commission to issue the
Symbols. The Court negatived the said contention and pertinently
observed that "the word 'elections' in Article 324 is used in a wide
sense so as to include the entire process of election which consists of
several stages and it embraces many steps, some of which may have an
important bearing on the result of the process. India is a country
which consists of millions of voters. Although they are quite conscious
of their duties politically, unfortunately, a large percentage of them
are still illiterate." The Court in paragraph 16 held: "16. Even if for
any reason, it is held that any of the provisions contained in the
Symbols Order are not traceable to the Act or the Rules, the power of
the Commission under Article 324 (1) of the Constitution which is
plenary in character can encompass all such provisions. Article 324 of
the Constitution operates in areas left unoccupied by legislation and
the words 'superintendence', 'direction' and 'control' as well as
"conduct of all elections" are the broadest terms which would include
the power to make all such provisions. {See Mohinder Singh Gill v.
Chief Election Commissioner, New Delhi [(1978) 1 SCC 405] and A.C. Jose
v. Sivan Pillai [(1984) 2 SCC 656]}. The Court further observed:
"..While construing the expression "superintendence, direction and
control" in Article 324 (1), one has to remember that every norm which
lays down a rule of conduct cannot possibly be elevated to the position
of legislation or delegated legislation. There are some authorities or
persons in certain grey areas who may be sources of rules of conduct
and who at the same time cannot be equated to authorities or persons
who can make law, in the strict sense in which it is understood in
jurisprudence. A direction may mean an order issued to a particular
individual or a precept which many may have to follow. It may be a
specific or a general order. One has also to remember that the source
of power in this case is the Constitution, the highest law of the land,
which is the repository and source of all legal powers and any power
granted by the Constitution for a specific purpose should be construed
liberally so that the object for which the power is granted is
effectively achieved. Viewed from this angle it cannot be said that any
of the provisions of the Symbols Order suffers from want of authority
on the part of the Commission, which has issued it." Thereafter, this
Court in Common Cause (A Registered Society) v. Union of India and
others [(1996) 2 SCC 752] dealt with election expenses incurred by
political parties and submission of return and the scope of Article 324
of the Constitution, where it was contended that cumulative effect of
the three statutory provisions, namely, Section 293-A of the Companies
Act, 1956, Section 13-A of the Income Tax Act, 1961 and Section 77 of
the Representation of the People Act, 1951, is to bring transparency in
the election funding and people of India must know the source of
expenditure incurred by the political parties and by the candidates in
the process of election. It was contended that election in the country
are fought with the help of money power which is gathered from black
sources and once elected to power, it becomes easy to collect tons of
black money, which is used for retaining power and for re-election and
that this vicious circle has totally polluted the basic democracy in
the country. The Court held that purity of election is fundamental to
democracy and the Commission can ask the candidates about the
expenditure incurred by the candidates and by a political party and for
this purpose. The Court also held: "The political parties in their
quest for power spend more than one thousand crore of rupees on the
General Election (Parliament alone), yet nobody accounts for the bulk
of the money so spent and there is no accountability anywhere. Nobody
discloses the source of the money. There are no proper accounts and no
audit. From where does the money come nobody knows. In a democracy
where rule of law prevails this type of naked display of black money,
by violating the mandatory provisions of law, cannot be permitted."
Thereafter, the Court observed that under Article 324, the Commission
can issue suitable directions to maintain the purity of election and in
particular to bring transparency in the process of election. The Court
also held (paragraph 26) thus: "Superintendence and control over the
conduct of election by the Election Commission include the scrutiny of
all expenses incurred by a political party, a candidate or any other
association or body of persons or by any individual in the course of
the election. The expression "Conduct of election" is wide enough to
include in its sweep, the power to issue directionsin the process of
the conduct of an electionto the effect that the political parties
shall submit to the Election Commission, for its scrutiny, the details
of the expenditure incurred or authorised by the parties in connection
with the election of their respective candidates." The Court further
observed that Constitution has made comprehensive provision under
Article 324 to take care of surprise situations and it operates in
areas left unoccupied by legislation. Question No.2 Right to know about
the candidates contesting elections. Now we would refer to various
decisions of this Court dealing with citizens' right to know which is
derived from the concept of 'freedom of speech and expression'. The
people of the country have a right to know every public act, everything
that is done in a public way by the public functionaries. MPs or MLAs
are undoubtedly public functionaries. Public education is essential for
functioning of the process of popular government and to assist the
discovery of truth and strengthening the capacity of an individual in
participating in decision making process. The decision making process
of a voter would include his right to know about public functionaries
who are required to be elected by him. In State of Uttar Pradesh v. Raj
Narain and Others [(1975) 4 SCC 428], the Constitution Bench considered
a questionwhether privilege can be claimed by the Government of Uttar
Pradesh under Section 123 of the Evidence Act in respect of what has
been described for the sake of brevity to be the Blue Book summoned
from the Government of Uttar Pradesh and certain documents summoned
from the Superintendent of Police, Rae Bareli, Uttar Pradesh? The Court
observed that "the right to know which is derived from the concept of
freedom of speech, though not absolute, is a factor which should make
one wary, when secrecy is claimed for transactions which can, at any
rate, have no repercussion on public security". The Court pertinently
observed as under: - "In a government of responsibility like ours,
where all the agents of the public must be responsible for their
conduct, there can be but few secrets. The people of this country have
a right to know every public act, everything that is done in a public
way, by their public functionaries. They are entitled to know the
particulars of every public transaction in all its bearing." In Indian
Express Newspapers (Bombay) Private Ltd. and Others etc. v. Union of
India and others [(1985) 1 SCC 641], this Court dealt with the validity
of customs duty on the newsprint in context of Article 19(1)(a). The
Court observed (in para 32) thus: "The purpose of the press is to
advance the public interest by publishing facts and opinions without
which a democratic country cannot make responsible judgments." The
Court further referred (in para 35) the following observations made by
this Court in Romesh Thappar v. State of Madras (1950 SCR 594): - "(The
freedom) lay at the foundation of all democratic organisations, for
without free political discussion no public education, so essential for
the proper functioning of the processses of popular government, is
possible. A freedom of such amplitude might involve risks of abuse
(But) "it is better to leave a few of its noxious branches to their
luxuriant growth, than, by pruning them away, to injure the vigour of
those yielding the proper fruits". Again in paragraph 68, the Court
observed: - ".The public interest in freedom of discussion (of which
the freedom of the press is one aspect) stems from the requirement that
members of a democratic society should be sufficiently informed that
they may influence intelligently the decisions which may affect
themselves." (Per Lord Simon of Glaisdale in Attorney-General v. Times
Newspapers Ltd. (1973) 3 All ER 54). Freedom of expression, as learned
writers have observed, has four broad social purposes to serve: (I) it
helps an individual to attain self-fulfilment, (ii) it assists in the
discovery of truth, (iii) it strengthens the capacity of an individual
in participating in decision-making and (iv) it provides a mechanism by
which it would be possible to establish a reasonable balance between
stability and social change. All members of society should be able to
form their own beliefs and communicate them freely to others. In sum,
the fundamental principle involved here is the people's right to know.
Freedom of speech and expression should, therefore, receive a generous
support from all those who believe in the participation of people in
the administration." From the afore-quoted paragraph, it can be deduced
that the members of a democratic society should be sufficiently
informed so that they may influence intelligently the decisions which
may affect themselves and this would include their decision of casting
votes in favour of a particular candidate. If there is a disclosure by
a candidate as sought for then it would strengthen the voters in taking
appropriate decision of casting their votes. In Secretary, Ministry of
Information and Broadcasting, Government of India and Others v. Cricket
Association of Bengal and Others [(1995) 2 SCC 161], this Court
considered the question of right to telecast sports event and after
considering various decisions, the Court referred to Article 10 of the
European Convention on Human Rights which inter alia states as follows
(para 36): "10.1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers." Thereafter, the Court summarised the law on
the freedom of speech and expression under Article 19(1)(a) as
restricted by Article 19(2) thus: - "The freedom of speech and
expression includes right to acquire information and to disseminate it.
Freedom of speech and expression is necessary, for self- fulfilment. It
enables people to contribute to debate on social and moral issues. It
is the best way to find a truest model of anything, since it is only
through it that the widest possible range of ideas can circulate. It is
the only vehicle of political discourse so essential to democracy.
Equally important is the role it plays in facilitating artistic and
scholarly endeavours of all sorts.." The Court dealt with the right of
telecast and [in paragraph 75] held thus: - "In a team event such as
cricket, football, hockey etc., there is both individual and collective
expression. It may be true that what is protected by Article 19(1)(a)
is an expression of thought and feeling and not of the physical or
intellectual prowess or skill. It is also true that a person desiring
to telecast sports events when he is not himself a participant in the
game, does not seek to exercise his right of self-expression. However,
the right to freedom of speech and expression also includes the right
to educate, to inform and to entertain and also the right to be
educated, informed and entertained. The former is the right of the
telecaster and the latter that of the viewers. The right to telecast
sporting event will therefore also include the right to educate and
inform the present and the prospective sportsmen interested in the
particular game and also to inform and entertain the lovers of the
game. Hence, when a telecaster desires to telecast a sporting event, it
is incorrect to say that the free-speech element is absent from his
right." The Court thereafter (in paragraph 82) held: "True democracy
cannot exist unless all citizens have a right to participate in the
affairs of the polity of the country. The right to participate in the
affairs of the country is meaningless unless the citizens are well
informed on all sides of the issues, in respect of which they are
called upon to express their views. One-sided information,
disinformation, misinformation and non- information all equally create
an uninformed citizenry which makes democracy a farce when medium of
information is monopolised either by a partisan central authority or by
private individuals or oligarchic organisations. This is particularly
so in a country like ours where about 65 per cent of the population is
illiterate and hardly 1 per cent of the population has an access to the
print media which is not subject to pre- censorship." The Court also
observed"a successful democracy posits an 'aware' citizenry." If right
to telecast and right to view to sport games and right to impart such
information is considered to be part and parcel of Article 19(1)(a), we
fail to understand why the right of a citizen/voter a little man to
know about the antecedents of his candidate cannot be held to be a
fundamental right under Article 19(1)(a)? In our view, democracy cannot
survive without free and fair election, without free and fairly
informed voters. Votes cast by uninformed voters in favour of X or Y
candidate would be meaningless. As stated in the aforesaid passage,
one-sided information, disinformation, misinformation and non-
information all equally create an uninformed citizenry which makes
democracy a farce. Therefore, casting of a vote by misinformed and non-
informed voter or a voter having one-sided information only is bound to
affect the democracy seriously. Freedom of speech and expression
includes right to impart and receive information which includes freedom
to hold opinions. Entertainment is implied in freedom of 'speech and
expression' and there is no reason to hold that freedom of speech and
expression would not cover right to get material information with
regard to a candidate who is contesting election for a post which is of
utmost importance in the democracy. In Dinesh Trivedi, M.P. and Others
v. Union of India and Others [(1997) 4 SCC 306], the Court dealt with a
petition for disclosure of a report submitted by a Committee
established by the Union of India on 9th July 1993 which was chaired by
erstwhile Home Secretary Shri N.N. Vohra which subsequently came to be
popularly known as Vohra Committee. During July 1995, a known political
activist Naina Sahni was murdered and one of the persons arrested
happened to be an active politician who had held important political
posts and newspaper report published a series of articles on the
criminalisation of politics within the country and the growing links
between political leaders and mafia members. The attention of the
masses was drawn towards the existence of the Vohra Committee Report.
It was suspected that the contents of the Report were such that the
Union Government was reluctant to make it public. In the said case, the
Court dealt with citizen's rights to freedom of information and
observed "in modern constitutional democracies, it is axiomatic that
citizens have a right to know about the affairs of the Government
which, having been elected by them, seek to formulate sound policies of
governance aimed at their welfare". The Court also observed "democracy
expects openness and openness is concomitant of a free society and the
sunlight is a best disinfectant". Mr. Ashwini Kumar, learned senior
counsel appearing on behalf of the intervenor submitted that the
aforesaid observations are with regard to citizen's right to know about
the affairs of the Government, but this would not mean that citizens
have a right to know the personal affairs of MPs or MLAs. In our view,
this submission is totally misconceived. There is no question of
knowing personal affairs of MPs or MLAs. The limited information is
whether the person who is contesting election is involved in any
criminal case and if involved what is the result? Further there are
widespread allegations of corruption against the persons holding post
and power. In such a situation, question is not of knowing personal
affairs but to have openness in democracy for attempting to cure
cancerous growth of corruption by few rays of light. Hence, citizens
who elect MPs or MLAs are entitled to know that their representative
has not misconducted himself in collecting wealth after being elected.
This information could be easily gathered only if prior to election,
the assets of such person are disclosed. For this purpose, learned
counsel Mr. Murlidhar referred to the practice followed in the United
States and the form which is required to be filled in by a candidate
for Senate which provides that such candidate is required to disclose
all his assets and that of his spouse and dependants. The form is
required to be re-filled every year. Penalties are also prescribed
which include removal from ballot. Learned counsel Mrs. Kamini Jaiswal
referred to All India Service (Conduct) Rules, 1968 and pointed out
that a member of All India Service is required to disclose his/her
assets including that of spouse and the dependant children. She
referred to Rule 16 of the said Rules, which provides for declaration
of movable, immovable and valuable property by a person who becomes
Member of the Service. Relevant part of Rule 16 is as under: "16. (1)
Every person shall, where such person is a member of the Service at the
commencement of these rules, before such date after such commencement
as may be specified by the Government in this behalf, or, where such
person becomes a member of the Service after commencement, on his first
appointment to the Service submits a return of his assets and
liabilities in such form as may be prescribed by the Government giving
the full particulars regarding: - (a) the immovable property owned by
him, or inherited or acquired by him or held by him on lease or
mortgage, either in his own name or in the name of any member of his
family or in the name of any other person; (b) shares, debentures,
postal Cumulative Time Deposits and cash including bank deposits
inherited by him or similarly owned, acquired or held by him; (c) other
movable property inherited by him or similarly owned, acquired or held
by him; and (d) debts and other liabilities incurred by him directly or
indirectly" Such officer is also required to submit an annual return
giving full particulars regarding the immovable and movable property
inherited by him or owned or acquired or held by him on lease or
mortgage either in his own name or in the name of any member of his
family or in the name of any other person. It is also submitted that
even the Gazetted Officers in all government services are required to
disclose their assets and thereafter to furnish details of any
acquisition of property annually. In our view, it is rightly submitted
that in a democratic form of government, MP or MLA is having higher
status and duty to the public. In P.V. Narasimha Rao v. State (CBI/SPE)
[(1998) 4 SCC 626], the Court inter alia considered whether Member of
Parliament is a public servant? The Court [in para 162] held thus: - "
public servant is "any person who holds an office by virtue of which he
is authorised or required to perform any public duty". Not only,
therefore, must the person hold an office but he must be authorised or
required by virtue of that office to perform a public duty. Public duty
is defined by Section 2(b) of the said Act to mean "a duty in the
discharge of which the State, the public or that community at large has
an interest". In a democratic form of government it is the Member of
Parliament or a State Legislature who represents the people of his
constituency in the highest lawmaking bodies at the Centre and the
State respectively. Not only is he the representative of the people in
the process of making the laws that will regulate their society, he is
their representative in deciding how the funds of the Centre and the
State shall be spent and in exercising control over the executive. It
is difficult to conceive of a duty more public than this or of a duty
in which the State, the public and the community at large would have
greater interest." The aforesaid underlined portion highlights the
important status of MP or State Legislature. Finally, in our view this
Court would have ample power to direct the Commission to fill the void,
in absence of suitable legislation, covering the field and the voters
are required to be well- informed and educated about contesting
candidates so that they can elect proper candidate by their own
assessment. It is the duty of the executive to fill the vacuum by
executive orders because its field is coterminous with that of the
legislature, and where there is inaction by the executive, for whatever
reason, the judiciary must step in, in exercise of its constitutional
obligations to provide a solution till such time the legislature acts
to perform its role by enacting proper legislation to cover the field.
The adverse impact of lack of probity in public life leading to a high
degree of corruption is manifold. Therefore, if the candidate is
directed to declare his/her spouse's and dependants' assetsimmovable,
moveable and valuable articlesit would have its own effect. This Court
in Vishaka v. State of Rajasthan [(1997) 6 SCC 241] dealt with incident
of sexual harassment of a woman at work place which resulted in
violation of fundamental right of gender equality and the right to life
and liberty and laid down that in absence of legislation, it must be
viewed along with the role of judiciary envisaged in the Beijing
Statement of Principles of independence of Judiciary in the LAWASIA
region. The decision has laid down the guidelines and prescribed the
norms to be strictly observed in all work places until suitable
legislation is enacted to occupy the field. In the present case also,
there is no legislation or rules providing for giving necessary
information to the voters. As stated earlier, this case was relied upon
in Vineet Narain's case (supra) where the Court has issued necessary
guidelines to the CBI and the Central Vigilance Commission (CVC) as
there was no legislation covering the said field to ensure proper
implementation of rule of law. To sum up the legal and constitutional
position which emerges from the aforesaid discussion, it can be stated
that: 1. The jurisdiction of the Election Commission is wide enough to
include all powers necessary for smooth conduct of elections and the
word 'elections' is used in a wide sense to include the entire process
of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when the Parliament
or State Legislature has made a valid law relating to or in connection
with elections, the Commission is required to act in conformity with
the said provisions. In case where law is silent, Article 324 is a
reservoir of power to act for the avowed purpose of having free and
fair election. Constitution has taken care of leaving scope for
exercise of residuary power by the Commission in its own right as a
creature of the Constitution in the infinite variety of situations that
may emerge from time to time in a large democracy, as every contingency
could not be foreseen or anticipated by the enacted laws or the rules.
By issuing necessary directions, Commission can fill the vacuum till
there is legislation on the subject. In Kanhiya Lal Omar's case, the
Court construed the expressions "superintendence, direction and
control" in Article 324(1) and held that a direction may mean an order
issued to a particular individual or a precept which may have to follow
and it may be a specific or a general order and such phrase should be
construed liberally empowering the election commission to issue such
orders. 3. The word "elections" includes the entire process of election
which consists of several stages and it embraces many steps, some of
which may have an important bearing on the process of choosing a
candidate. Fair election contemplates disclosure by the candidate of
his past including the assets held by him so as to give a proper choice
to the candidate according to his thinking and opinion. As stated
earlier, in Common Cause case (supra), the Court dealt with a
contention that elections in the country are fought with the help of
money power which is gathered from black sources and once elected to
power, it becomes easy to collect tons of black money, which is used
for retaining power and for re-election. If on affidavit a candidate is
required to disclose the assets held by him at the time of election,
voter can decide whether he could be re-elected even in case where he
has collected tons of money. Presuming, as contended by the learned
senior counsel Mr. Ashwini Kumar, that this condition may not be much
effective for breaking a vicious circle which has polluted the basic
democracy in the country as the amount would be unaccounted. May be
true, still this would have its own effect as a step-in-aid and voters
may not elect law-breakers as law-makers and some flowers of democracy
may blossom. 4. To maintain the purity of elections and in particular
to bring transparency in the process of election, the Commission can
ask the candidates about the expenditure incurred by the political
parties and this transparency in the process of election would include
transparency of a candidate who seeks election or re- election. In a
democracy, the electoral process has a strategic role. The little man
of this country would have basic elementary right to know full
particulars of a candidate who is to represent him in Parliament where
laws to bind his liberty and property may be enacted. 5. The right to
get information in democracy is recognised all throughout and it is
natural right flowing from the concept of democracy. At this stage, we
would refer to Article 19(1) and (2) of the International Covenant of
Civil and Political Rights which is as under: - "(1) Everyone shall
have the right to hold opinions without interference. (2) Everyone
shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice." 6. Cumulative
reading of plethora of decisions of this Court as referred to, it is
clear that if the field meant for legislature and executive is left
unoccupied detrimental to the public interest, this Court would have
ample jurisdiction under Article 32 read with Articles 141 and 142 of
the Constitution to issue necessary directions to the Executive to
subserve public interest. 7. Under our Constitution, Article 19(1)(a)
provides for freedom of speech and expression. Voters' speech or
expression in case of election would include casting of votes, that is
to say, voter speaks out or expresses by casting vote. For this
purpose, information about the candidate to be selected is must.
Voter's (little mancitizen's) right to know antecedents including
criminal past of his candidate contesting election for MP or MLA is
much more fundamental and basic for survival of democracy. The little
man may think over before making his choice of electing law breakers as
law makers. In this view of the matter, it cannot be said that the
directions issued by the High Court are unjustified or beyond its
jurisdiction. However, considering the submissions made by the learned
counsel for the parties at the time of hearing of this matter, the said
directions are modified as stated below. 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 pastif 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 framed or cognizance is taken by the Court of law. If
so, the details thereof; (3) The assets (immovable, movable, bank
balances etc.) of a candidate and of his/her spouse and that of
dependants. (4) Liabilities, if any, particularly whether there are any
over dues of any public financial institution or Government dues. (5)
The educational qualifications of the candidate. It is to be stated
that the Election Commission has from time to time issued
instructions/orders to meet with the situation where the field is
unoccupied by the legislation. Hence, the norms and modalities to carry
out and give effect to the aforesaid directions should be drawn up
properly by the Election Commission as early as possible and in any
case within two months. In the result, Civil Appeal No.7178 of 2001 is
partly allowed and the directions issued by the High Court are modified
as stated above. Appeal stands disposed of accordingly. Writ Petition
(C) No. 294 of 2001 is allowed to the af
oresaid extent. There shall be no order as to costs. ........J. (M.B.
SHAH) ........J. (BISHESHWAR PRASAD SINGH) ........J. (H.K. SEMA) May
2, 2002.
CASE NO.: Writ Petition (civil) 490 of 2002 Writ Petition (civil) 509
of 2002 Writ Petition (civil) 515 of 2002 PETITIONER: People's Union of
Civil Liberties (P.U.C.L.) & Anr. RESPONDENT: Union of India & Anr.
DATE OF JUDGMENT: 13/03/2003 BENCH: P. V. Reddi JUDGMENT: J U D G M E N
T P. Venkatarama Reddi, J. The width and amplitude of the right to
information about the candidates contesting elections to the Parliament
or State Legislature in the context of the citizen's right to vote
broadly falls for consideration in these writ petitions under Article
32 of the Constitution. While I respectfully agree with the conclusion
that Section 33(B) of the Representation of the People Act, 1951 does
not pass the test of constitutionality, I have come across a limited
area of disagreement on certain aspects, especially pertaining to the
extent of disclosures that could be insisted upon by the Court in the
light of legislation on the subject. Moreover, the importance and
intricacies of the subject-matter and the virgin ground trodden by this
Court in Union of India Vs. Association for Democratic Reforms [(2002)
5 SCC 294] to bring the right to information of the voter within the
sweep of Article 19(1)(a) has impelled me to elucidate and clarify
certain crucial aspects. Hence, this separate opinion. I. (1). Freedom
of expression and right to information In the Constitution of our
democratic Republic, among the fundamental freedoms, freedom of speech
and expression shines radiantly in the firmament of Part III. We must
take legitimate pride that this cherished freedom has grown from
strength to strength in the post independent era. It has been
constantly nourished and shaped to new dimensions in tune with the
contemporary needs by the constitutional Courts. Barring a few
aberrations, the Executive Government and the Political Parties too
have not lagged behind in safeguarding this valuable right which is the
insignia of democratic culture of a nation. Nurtured by this right,
Press and electronic media have emerged as powerful instruments to
mould the public opinion and to educate, entertain and enlighten the
public. Freedom of speech and expression, just as equality clause and
the guarantee of life and liberty has been very broadly construed by
this Court right from 1950s. It has been variously described as a
'basic human right', 'a natural right' and the like. It embraces within
its scope the freedom of propagation and inter-change of ideas,
dissemination of information which would help formation of one's
opinion and viewpoint and debates on matters of public concern. The
importance which our Constitution- makers wanted to attach to this
freedom is evident from the fact that reasonable restrictions on that
right could be placed by law only on the limited grounds specified in
Article 19(2), not to speak of inherent limitations of the right. In
due course of time, several species of rights unenumerated in Article
19(1)(a) have branched off from the genus of the Article through the
process of interpretation by this apex Court. One such right is the
'right to information'. Perhaps, the first decision which has adverted
to this right is State of U.P. Vs. Raj Narain [(1975) 4 SCC 428]. 'The
right to know', it was observed by Mathew, J. "which is derived from
the concept of freedom of speech, though not absolute is a factor which
should make one wary, when secrecy is claimed for transactions which
can, at any rate, have no repercussion on public security". It was said
very aptly- "In a Government of responsibility like ours, where all the
agents of the public must be responsible for their conduct, there can
be but few secrets. The people of this country have a right to know
every public act, everything that is done in a public way, by their
public functionaries." The next milestone which showed the way for
concretizing this right is the decision in S.P. Gupta Vs. Union of
India [(1981) Suppl. SCC Page 87] in which this Court dealt with the
issue of High Court Judges' transfer. Bhagwati, J. observed- "The
concept of an open government is the direct emanation from the right to
know which seems to be implicit in the right of free speech and
expression guaranteed under Article 19(1)(a). Therefore, disclosure of
information in regard to the functioning of the Government must be the
rule and secrecy an exception..." Peoples' right to know about
governmental affairs was emphasized in the following words: "No
democratic Government can survive without accountability and the basic
postulate of accountability is that the people should have information
about the functioning of the Government. It is only when people know
how Government is functioning that they can fulfill the role which
democracy assigns to them and make democracy a really effective
participatory democracy." These two decisions have recognized that the
right of the citizens to obtain information on matters relating to
public acts flows from the fundamental right enshrined in Article 19(1)
(a). The pertinent observations made by the learned Judges in these two
cases were in the context of the question whether the privilege under
Section 123 of the Evidence Act could be claimed by the State in
respect of the Blue Book in the first case i.e., Raj Narain's case
(supra) and the file throwing light on the consultation process with
the Chief Justice, in the second case. Though the scope and ambit of
Article 19(1)(a) vis--vis the right to information did not directly
arise for consideration in those two landmark decisions, the
observations quoted supra have certain amount of relevance in
evaluating the nature and character of the right. Then, we have the
decision in Dinesh Trivedi Vs. Union of India [(1997) 4 SCC 306]. This
Court was confronted with the issue whether background papers and
investigatory reports which were referred to in Vohra Committee's
Report could be compelled to be made public. The following observations
of Ahmadi, C.J. are quite pertinent:-- "In modern Constitutional
democracies, it is axiomatic that citizens have a right to know about
the affairs of the Government which, having been elected by them, seeks
to formulate sound policies of governance aimed at their welfare.
However, like all other rights, even this right has recognized
limitations; it is, by no means, absolute." The proposition expressed
by Mathew, J. in Raj Narain's Case (supra) was quoted with approval.
The next decision which deserves reference is the case of Secretary,
Ministry of I & B vs. Cricket Association of Bengal [(1995) 2 SCC Page
161]. Has an organizer or producer of any event a right to get the
event telecast through an agency of his choice whether national or
foreign? That was the primary question decided in that case. It was
highlighted that the right to impart and receive information is a part
of the fundamental right under Article 19(1)(a) of the Constitution. On
this point, Sawant, J. had this to say at Paragraph 75- "The right to
impart and receive information is a species of the right of freedom of
speech and expression guaranteed by Article 19(1)(a) of the
Constitution. A citizen has a fundamental right to use the best means
of imparting and receiving information and as such to have an access to
telecasting for the purpose. However, this right to have an access to
telecasting has limitations on account of the use of the public
property....." Jeevan Reddy, J. spoke more or less in the same voice:
"The right of free speech and expression includes the right to receive
and impart information. For ensuring the free speech right of the
citizens of this country, it is necessary that the citizens have the
benefit of plurality of views and a range of opinions on all public
issues. A successful democracy posits an 'aware' citizenry. Diversity
of opinions, views, ideas and ideologies is essential to enable the
citizens to arrive at informed judgment on all issues touching them." A
conspectus of these cases would reveal that the right to receive and
impart information was considered in the context of privilege pleaded
by the State in relation to confidential documents relating to public
affairs and the freedom of electronic media in broadcasting/telecasting
certain events. I. (2). Right to information in the context of the
voter's right to know the details of contesting candidates and the
right of the media and others to enlighten the voter. For the first
time in Union of India Vs. Association for Democratic Reforms' case
(supra), which is the forerunner to the present controversy, the right
to know about the candidate standing for election has been brought
within the sweep of Article 19(1)(a). There can be no doubt that by
doing so, a new dimension has been given to the right embodied in
Article 19(1)(a) through a creative approach dictated by the need to
improve and refine the political process of election. In carving out
this right, the Court had not traversed a beaten track but took a fresh
path. It must be noted that the right to information evolved by this
Court in the said case is qualitatively different from the right to get
information about public affairs or the right to receive information
through the Press and electronic media, though to a certain extent,
there may be overlapping. The right to information of the voter/citizen
is sought to be enforced against an individual who intends to become a
public figure and the information relates to his personal matters.
Secondly, that right cannot materialize without State's intervention.
The State or its instrumentality has to compel a subject to make the
information available to public, by means of legislation or orders
having the force of law. With respect, I am unable to share the view
that it stands on the same footing as right to telecast and the right
to view the sports and games or other items of entertainment through
television (vide observations at Paragraph 38 of of Association for
Democratic Reforms case). One more observation at Paragraph 30 to the
effect that "the decision making process of a voter would include his
right to know about public functionaries who are required to be elected
by him" needs explanation. Till a candidate gets elected and enters the
House, it would not be appropriate to refer to him as a public
functionary. Therefore, the right to know about a public act done by a
public functionary to which we find reference in Raj Narain's case
(supra) is not the same thing as the right to know about the
antecedents of the candidate contesting for the election. Nevertheless,
the conclusion reached by the Court that the voter has such a right and
that the right falls within the realm of freedom of speech and
expression guaranteed by Article 19(1)(a) can be justified on good and
substantial grounds. To this aspect, I will advert a little later.
Before that, I would like to say that it would have been in the fitness
of the things if the case [U.O.I. vs. Association for Democratic
Reforms] was referred to the Constitution Bench as per the mandate of
Article 145(3) for the reason that a new dimension has been added to
the concept of freedom of expression so as to bring within its ambit a
new species of right to information. Apparently, no such request was
made at the hearing and all parties invited the decision of three Judge
Bench. The law has been laid down therein elevating the right to secure
information about a contesting candidate to the position of a
fundamental right. That decision has been duly taken note of by the
Parliament and acted upon by the Election Commission. It has attained
finality. At this stage, it would not be appropriate to set the clock
back and refer the matter to Constitution Bench to test the correctness
of the view taken in that case. I agree with my learned brother Shah,
J. in this respect. However, I would prefer to give reasons of my own-
may not be very different from what the learned Judge had expressed, to
demonstrate that the proposition laid down by this Court rests on a
firm Constitutional basis. I shall now proceed to elucidate as to how
the right to know the details about the contesting candidate should be
regarded as a part of the freedom of expression guaranteed by Article
19(1)(a). This issue has to be viewed from more than one angle-from the
point of view of the voter, the public viz., representatives of Press,
organizations such as the petitioners which are interested in taking up
public issues and thirdly from the point of view of the persons seeking
election to the legislative bodies. The trite saying that 'democracy is
for the people, of the people and by the people' has to be remembered
for ever. In a democratic republic, it is the will of the people that
is paramount and becomes the basis of the authority of the Government.
The will is expressed in periodic elections based on universal adult
suffrage held by means of secret ballot. It is through the ballot that
the voter expresses his choice or preference for a candidate. "Voting
is formal expression of will or opinion by the person entitled to
exercise the right on the subject or issue", as observed by this Court
in Lily Thomas Vs. Speaker, Lok Sabha [(1993) 4 SCC 234] quoting from
Black's Law Dictionary. The citizens of the country are enabled to take
part in the Government through their chosen representatives. In a
Parliamentary democracy like ours, the Government of the day is
responsible to the people through their elected representatives. The
elected representative acts or is supposed to act as a live link
between the people and the Government. The peoples' representatives
fill the role of law-makers and custodians of Government. People look
to them for ventilation and redressal of their grievances. They are the
focal point of the will and authority of the people at large. The
moment they put in papers for contesting the election, they are
subjected to public gaze and public scrutiny. The character, strength
and weakness of the candidate is widely debated. Nothing is therefore
more important for sustenance of democratic polity than the voter
making an intelligent and rational choice of his or her representative.
For this, the voter should be in a position to effectively formulate
his/her opinion and to ultimately express that opinion through ballot
by casting the vote. The concomitant of the right to vote which is the
basic postulate of democracy is thus two fold: first, formulation of
opinion about the candidates and second, the expression of choice by
casting the vote in favour of the preferred candidate at the polling
booth. The first step is complementary to the other. Many a voter will
be handicapped in formulating the opinion and making a proper choice of
the candidate unless the essential information regarding the candidate
is available. The voter/citizen should have at least the basic
information about the contesting candidate, such as his involvement in
serious criminal offences. To scuttle the flow of information-relevant
and essential would affect the electorate's ability to evaluate the
candidate. Not only that, the information relating to the candidates
will pave the way for public debate on the merits and demerits of the
candidates. When once there is public disclosure of the relevant
details concerning the candidates, the Press, as a media of mass
communication and voluntary organizations vigilant enough to channel
the public opinion on right lines will be able to disseminate the
information and thereby enlighten and alert the public at large
regarding the adverse antecedents of a candidate. It will go a long way
in promoting the freedom of speech and expression. That goal would be
accomplished in two ways. It will help the voter who is interested in
seeking and receiving information about the candidate to form an
opinion according to his or her conscience and best of judgment and
secondly it will facilitate the Press and voluntary organizations in
imparting information on a matter of vital public concern. An informed
voter-whether he acquires information directly by keeping track of
disclosures or through the Press and other channels of communication,
will be able to fulfil his responsibility in a more satisfactory
manner. An enlightened and informed citizenry would undoubtedly enhance
democratic values. Thus, the availability of proper and relevant
information about the candidate fosters and promotes the freedom of
speech and expression both from the point of view of imparting and
receiving the information. In turn, it would lead to the preservation
of the integrity of electoral process which is so essential for the
growth of democracy. Though I do not go to the extent of remarking that
the election will be a farce if the candidates' antecedents are not
known to the voters, I would say that such information will certainly
be conducive to fairness in election process and integrity in public
life. The disclosure of information would facilitate and augment the
freedom of expression both from the point of view of the voter as well
as the media through which the information is publicized and openly
debated. The problem can be approached from another angle. As observed
by this Court in Association for Democratic Reforms' case (supra), a
voter 'speaks out or expresses by casting vote'. Freedom of expression,
as contemplated by Article 19(1)(a) which in many respects overlaps and
coincides with freedom of speech, has manifold meanings. It need not
and ought not to be confined to expressing something in words orally or
in writing. The act of manifesting by action or language is one of the
meanings given in Ramanatha Iyer's Law Lexicon (edited by Justice Y.V.
Chandrachud). Even a manifestation of an emotion, feeling etc., without
words would amount to expression. The example given in Collin's
Dictionary of English language (1983 reprint) is: "tears are an
expression of grief", is quite apposite. Another shade of meaning is:
"a look on the face that indicates mood or emotion; eg: a joyful
expression". Communication of emotion and display of talent through
music, painting etc., is also a sort of expression. Having regard to
the comprehensive meaning of phrase 'expression', voting can be
legitimately regarded as a form of expression. Ballot is the instrument
by which the voter expresses his choice between candidates or in
respect to propositions; and his 'vote' is his choice or election, as
expressed by his ballot (vide 'A Dictionary of Modern Legal Usage'; 2nd
Edition, by Garner Bryan A). "Opinion expressed, resolution or decision
carried, by voting" is one of the meanings given to the expression
'vote' in the New Oxford Illustrated Dictionary. It is well settled and
it needs no emphasis that the fundamental right of freedom of speech
and expression should be broadly construed and it has been so construed
all these years. In the light of this, the dictum of the Court that the
voter "speaks out or expresses by casting a vote" is apt and well
founded. I would only reiterate and say that freedom of voting by
expressing preference for a candidate is nothing but freedom of
expressing oneself in relation to a matter of prime concern to the
country and the voter himself. I. (3) Right to vote is a Constitutional
right though not a fundamental right but right to make choice by means
of ballot is part of freedom of expression. The right to vote for the
candidate of one's choice is of the essence of democratic polity. This
right is recognized by our Constitution and it is given effect to in
specific form by the Representation of the People Act. The Constituent
Assembly debates reveal that the idea to treat the voting right as a
fundamental right was dropped; nevertheless, it was decided to provide
for it elsewhere in the Constitution. This move found its expression in
Article 326 which enjoins that "the elections to the House of the
People and to the Legislative Assembly of every State shall be on the
basis of adult suffrage; that is to say, every person who is a citizen
of India and who is not less than 21* years of age, and is not
otherwise disqualified under the Constitution or law on the ground of
non-residence, unsoundness of mind, crime, corrupt or illegal practice-
shall be entitled to be registered as voter at such election" (* Now 18
years). However, case after case starting from Ponnuswami's case
[(1952) SCR 218] characterized it as a statutory right. "The right to
vote or stand as a candidate for election", it was observed in
Ponnuswami's case "is not a civil right but is a creature of statute or
special law and must be subject to the limitations imposed by it." It
was further elaborated in the following words: "Strictly speaking, it
is the sole right of the Legislature to examine and determine all
matters relating to the election of its own members, and if the
legislature takes it out of its own hands and vests in a special
tribunal an entirely new and unknown jurisdiction, that special
jurisdiction should be exercised in accordance with the law which
creates it." In Jyoti Basu Vs. Debi Ghosal [1982 (3) SCR 318] this
Court again pointed out in no uncertain terms that: " a right to elect,
fundamental though it is to democracy, is, anomalously enough, neither
a fundamental right nor a common law right. It is pure and simple a
statutory right." With great reverence to the eminent Judges, I would
like to clarify that the right to vote, if not a fundamental right, is
certainly a constitutional right. The right originates from the
Constitution and in accordance with the constitutional mandate
contained in Article 326, the right has been shaped by the statute,
namely, R.P. Act. That, in my understanding, is the correct legal
position as regards the nature of the right to vote in elections to the
House of people and Legislative Assemblies. It is not very accurate to
describe it as a statutory right, pure and simple. Even with this
clarification, the argument of the learned Solicitor General that the
right to vote not being a fundamental right, the information which at
best facilitates meaningful exercise of that right cannot be read as an
integral part of any fundamental right, remains to be squarely met.
Here, a distinction has to be drawn between the conferment of the right
to vote on fulfillment of requisite criteria and the culmination of
that right in the final act of expressing choice towards a particular
candidate by means of ballot. Though the initial right cannot be placed
on the pedestal of a fundamental right, but, at the stage when the
voter goes to the polling booth and casts his vote, his freedom to
express arises. The casting of vote in favour of one or the other
candidate tantamounts to expression of his opinion and preference and
that final stage in the exercise of voting right marks the
accomplishment of freedom of expression of the voter. That is where
Article 19(1)(a) is attracted. Freedom of voting as distinct from right
to vote is thus a species of freedom of expression and therefore
carries with it the auxiliary and complementary rights such as right to
secure information about the candidate which are conducive to the
freedom. None of the decisions of this Court wherein the proposition
that the right to vote is a pure and simple statutory right was
declared and reiterated, considered the question whether the citizen's
freedom of expression is or is not involved when a citizen entitled to
vote casts his vote in favour of one or the other candidate. The issues
that arose in Ponnuswami's case and various cases cited by the learned
Solicitor-General fall broadly within the realm of procedural or
remedial aspects of challenging the election or the nomination of a
candidate. None of these decisions, in my view, go counter to the
proposition accepted by us that the fundamental right of freedom of
expression sets in when a voter actually casts his vote. I, therefore,
find no merit in the submission made by the learned Solicitor General
that these writ petitions have to be referred to a larger bench in view
of the apparent conflict. As already stated, the factual matrix and
legal issues involved in those cases were different and the view, we
are taking, does not go counter to the actual ratio of the said
decisions rendered by the eminent Judges of this Court. Reliance has
been placed by the learned Solicitor General on the Constitution Bench
decision in Jamuna Prasad Vs. Lachhi Ram [(1955) 1 SCR Page 608]. That
was a case of special appeal to this Court against the decision of an
Election Tribunal. Apart from assailing the finding of the Tribunal on
the aspect of 'corrupt practice', Sections 123(5) and 124(5) (as they
stood then) of the R.P. Act were challenged as ultra vires Article
19(1)(a). The former provision declared the character assassination of
a candidate as a major corrupt practice and the latter provision made
an appeal to vote on the ground of caste a minor corrupt practice. The
contention that these provisions impinged on the freedom of speech and
expression was unhesitatingly rejected. The Court observed that those
provisions did not stop a man from speaking. They merely prescribed
conditions which must be observed if a citizen wanted to enter the
Parliament. It was further observed that the right to stand as a
candidate and contest an election is a special right created by the
statute and can only be exercised on the conditions laid down by the
statute. In that context, the Court made an observation that the
fundamental right chapter had no bearing on the right to contest the
election which is created by the statute and the appellant had no
fundamental right to be elected as a member of Parliament. If a person
wants to get elected, he must observe the rules laid down by law. So
holding, those Sections were held to be intra vires. I do not think
that this decision which dealt with the contesting candidate's rights
and obligations has any bearing on the freedom of expression of the
voter and the public in general in the context of elections. The remark
that 'the fundamental right chapter has no bearing on a right like this
created by statute' cannot be divorced from the context in which it was
made. The learned senior counsel appearing for one of the interveners
(B.J.P.) has advanced the contention that if the right to information
is culled out from Article 19(1)(a) and read as an integral part of
that right, it is fraught with dangerous consequences inasmuch as the
grounds of reasonable restrictions which could be imposed are by far
limited and therefore, the Government may be constrained to part with
certain sensitive informations which would not be in public interest to
disclose. This raises the larger question whether apart from the heads
of restriction envisaged by sub-Article (2) of Article 19, certain
inherent limitations should not be read into the Article, if it becomes
necessary to do so in national or societal interest. The discussion on
this aspect finds its echo in the separate opinion of Jeevan Reddy, J.
in Cricket Association's case (supra). The learned Judge was of the
view that the freedom of speech and expression cannot be so exercised
as to endanger the interest of the nation or the interest of the
society, even if the expression 'national interest' or 'public
interest' has not been used in Article 19(2). It was pointed out that
such implied limitation has been read into the first amendment of the
U.S. Constitution which guarantees the freedom of speech and expression
in unqualified terms. The following observations of the U.S. Supreme
Court in Giltow Vs. New York [(1924) 69 L.Ed. 1138] are very relevant
in this context: "It is a fundamental principle, long established, that
the freedom of speech and of the Press which is secured by the
Constitution does not confer an absolute right to speak or publish,
without responsibility, whatever one may choose, or an unrestricted and
unbridle license that gives immunity for every possible use of
language, and prevents the punishment of those who abuse this freedom."
Whenever the rare situations of the kind anticipated by the learned
counsel arise, the Constitution and the Courts are not helpless in
checking the misuse and abuse of the freedom. Such a check need not
necessarily be found strictly within the confines of Article 19(2). II.
Sections 33-A & 33-B of the Representation of People (3rd Amendment)
Act, 2002-whether Section 33-A by itself effectively secures the
voter's/citizen's right to information-whether Section 33-B is
unconstitutional? II. (1). Section 33-A & 33-B of the Representation of
People (3rd Amendment) Act: Now I turn my attention to the discussion
of core question, that is to say, whether the impugned legislation
falls foul of Article 19(1)(a) for limiting the area of disclosure and
whether the Parliament acted beyond its competence in deviating from
the directives given by this Court to the Election Commission in
Democratic Reforms Association case. By virtue of the Representation of
the People (Amendment) Act, 2002 the only information which a
prospective contestant is required to furnish apart from the
information which he is obliged to disclose under the existing
provisions is the information on two points: (i) Whether he is accused
of any offence punishable with imprisonment for two years or more in a
pending case in which a charge has been framed and; (ii) Whether he has
been convicted of an offence (other than the offence referred to in
sub-Sections (1) to (3) of Section 8) and sentenced to imprisonment for
one year or more. On other points spelt out in this Court's judgment,
the candidate is not liable to furnish any information and that is so,
notwithstanding anything contained in any judgment or order of a Court
OR any direction, order or instruction issued by the Election
Commission. Omission to furnish the information as per the mandate of
Section 33B and furnishing false information in that behalf is made
punishable. That is the sum and substance of the two provisions namely,
Section 33A and 33B. The plain effect of the embargo contained in
Section 33B is to nullify substantially the directives issued by the
Election Commission pursuant to the judgment of this Court. At present,
the instructions issued by the Election Commission could only operate
in respect of the items specified in Section 33A and nothing more. It
is for this reason that Section 33B has been challenged as ultra vires
the Constitution both on the ground that it affects the fundamental
right of the voter/citizen to get adequate information about the
candidate and that the Parliament is incompetent to nullify the
judgment of this Court. I shall briefly notice the rival contentions on
this crucial issue. II. (2). Contentions: Petitioners' contention is
that the legislation on the subject of disclosure of particulars of
candidates should adopt in entirety the directives issued by this Court
to the Election Commission in the pre-ordinance period. Any dilution or
deviation of those norms or directives would necessarily violate the
fundamental right guaranteed by Article 19(1)(a) as interpreted by this
Court and therefore the law, as enacted by Parliament, infringes the
said guarantee. This contention has apparently been accepted by my
learned brother M.B. Shah, J. The other view point presented on behalf
of Union of India and one of the interveners is that the freedom of
legislature in identifying and evolving the specific areas in which
such information should be made public cannot be curtailed by reference
to the ad hoc directives given by this Court in pre- ordinance period
and the legislative wisdom of Parliament, especially in election
matters, cannot be questioned. This is the position even if the right
to know about the candidate is conceded to be part of Article 19(1)(a).
It is for the Parliament to decide to what extent and how far the
information should be made available. In any case, it is submitted that
the Court's verdict has been duly taken note of by Parliament and
certain provisions have been made to promote the right to information
vis--vis the contesting candidates. Section 33B is only a part of this
exercise and it does not go counter to Article 19(1)(a) even though the
scope of public disclosures has been limited to one important aspect
only. II. (3). Broad points for consideration A liberal but not a
constricted approach in the matter of disclosure of information in
relation to candidates seeking election is no doubt a desideratum. The
wholesale adoption of the Court's diktats on the various items of
information while enacting the legislation would have received public
approbation and would have been welcomed by public. It would have been
in tune with the recommendations of various Commissions and even the
statements made by eminent and responsible political personalities.
However, the fact remains that the Parliament in its discretion did not
go the whole hog, but chose to limiting the scope of mandated
disclosures to one only of the important aspects highlighted in the
judgment. The question remains to be considered whether in doing so,
the Parliament out-stepped its limits and enacted a law in violation of
the guarantee enshrined in Article 19(1)(a) of the Constitution. The
allied question is whether the Parliament has no option but to
scrupulously adopt the directives given by this Court to the Election
Commission. Is it open to the Parliament to independently view the
issue and formulate the parameters and contents of disclosure, though
it has the effect of diluting or diminishing the scope of disclosures
which, in the perception of the Court, were desirable? In considering
these questions of far reaching importance from the Constitutional
angle, it is necessary to have a clear idea of the ratio and
implications of this Court's Judgment in the Association for Democratic
Reforms case. II. (4) Analysis of the judgment in Association for
Democratic Reforms case-whether and how far the directives given
therein have impact on the Parliamentary legislation-Approach of Court
in testing the legislation. The first proposition laid down by this
Court in the said case is that a citizen/voter has the right to know
about the antecedents of the contesting candidate and that right is a
part of the fundamental right under Article 19(1)(a). In this context,
M.B. Shah, J. observed that- "...Voter's speech or expression in case
of election would include casting of votes, that is to say, voter
speaks out or expresses by casting vote." It was then pointed out that
the information about the candidate to be selected is essential as it
would be conducive to transparency and purity in the process of
election. The next question considered was how best to enforce that
right. The Court having noticed that there was void in the field in the
sense that it was not covered by any legislative provision, gave
directions to the Election Commission to fill the vacuum by requiring
the candidate to furnish information on the specified aspects while
filing the nomination paper. Five items of information which the
Election Commission should call for from the prospective candidates
were spelt out by the Court. Two of them relate to criminal background
of the candidate and pendency of criminal cases against him. Points 3 &
4 relate to assets and liabilities of the candidate and his/her family.
The last one is about the educational qualifications of the candidate.
The legal basis and the justification for issuing such directives to
the Commission has been stated thus (vide paragraphs 19 & 20) : "19. At
the outset, we would say that it is not possible for this Court to give
any directions for amending the Act or the statutory Rules. It is for
Parliament to amend the Act and the Rules. It is also established law
that no direction can be given, which would be contrary to the Act and
the Rules. x x x 20. However, it is equally settled that in case when
the Act or Rules are silent on a particular subject and the authority
implementing the same has constitutional or statutory power to
implement it, the Court can necessarily issue directions or orders on
the said subject to fill the vacuum or void till the suitable law is
enacted." Again, at paragraph 49 it was emphasized- "It is to be stated
that the Election Commission has from time to time issued
instructions/orders to meet with the situation where the field is
unoccupied by the legislation. Hence, the norms and modalities to carry
out and give effect to the aforesaid directions should be drawn up
properly by the Election Commission as early as possible." Thus, the
Court was conscious of the fact that the Election Commission could act
in the matter only so long as the field is not covered by legislation.
The Court also felt that the vacuum or void should be suitably filled
so that the right to information concerning a candidate would soon
become a reality. In other words, till the Parliament applied its mind
and came forward with appropriate legislation to give effect to the
right available to a voter-citizen, the Court felt that the said goal
has to be translated into action through the media of Election
Commission, which is endowed with 'residuary power' to regulate the
election process in the best interests of the electorate. Instead of
leaving it to the Commission and with a view to give quietus to the
possible controversies that might arise, the Court considered it
expedient to spell out five points (broadly falling into three
categories) on which the information has to be called for from the
contesting candidate. In the very nature of things, the directives
given by the Court were intended to operate only till the law was made
by legislature and in that sense 'pro tempore' in nature. The five
directives cannot be considered to be rigid theorems-inflexible and
immutable, but only reflect the perception and tentative thinking of
the Court at a point of time when the legislature did not address
itself to the question. When the Parliament, in the aftermath of the
verdict of this Court, deliberated and thought it fit to secure the
right to information to a citizen only to a limited extent (having a
bearing on criminal antecedents), a fresh look has to be necessarily
taken by the Court and the validity of the law made has to be tested on
a clean slate. It must be remembered that the right to get information
which is a corollary to the fundamental right to free speech and
expression has no fixed connotation. Its contours and parameters cannot
be precisely defined and the Court in my understanding, never meant to
do so. It is often a matter of perception and approach. How far to go
and where to stop? These are the questions to be pondered over by the
Legislature and the Constitutional Court called upon to decide the
question of validity of legislation. For instance, many voters/citizens
may like to have more complete information-a sort of bio-data of the
candidate starting from his school days such as his academic career,
the properties which he had before and after entering into politics,
the details of his income and tax payments for the last one decade and
sources of acquisition of his and his family's wealth. Can it be said
that all such information which will no doubt enable the voter and
public to have a comprehensive idea of the contesting candidate, should
be disclosed by a prospective candidate and that the failure to provide
for it by law would infringe the fundamental right under Article 19(1)
(a)? The preponderance of view would be that it is not reasonable to
compel a candidate to make disclosures affecting his privacy to that
extent in the guise of effectuating the right to information. A line
has to be drawn somewhere. While there cannot be a lip service to the
valuable right to information, it should not be stretched too far. At
the same time, the essence and substratum of the right has to be
preserved and promoted, when once it is brought within the fold of
fundamental right. A balanced but not a rigid approach, is needed in
identifying and defining the parameters of the right which the
voter/citizen has. The standards to be applied to disclosures vis--vis
public affairs and governance AND the disclosures relating to personal
life and bio-data of a candidate cannot be the same. The measure or
yardstick will be somewhat different. It should not be forgotten that
the candidates' right to privacy is one of the many factors that could
be kept in view, though that right is always subject to overriding
public interest. In my view, the points of disclosure spelt out by this
Court in the Association for Democratic Reforms case should serve as
broad indicators or parameters in enacting the legislation for the
purpose of securing the right to information about the candidate. The
paradigms set by the Court, though pro tempore in nature as clarified
supra, are entitled to due weight. If the legislature in utter
disregard of the indicators enunciated by this Court proceeds to make a
legislation providing only for a semblance or pittance of information
or omits to provide for disclosure on certain essential points, the law
would then fail to pass the muster of Article 19(1)(a). Though certain
amount of deviation from the aspects of disclosure spelt out by this
Court is not impermissible, a substantial departure cannot be
countenanced. The legislative provision should be such as to promote
the right to information to a reasonable extent, if not to the fullest
extent on details of concern to the voters and citizens at large. While
enacting the legislation, the legislature has to ensure that the
fundamental right to know about the candidate is reasonably secured and
information which is crucial, by any objective standards, is not
denied. It is for the Constitutional Court in exercise of its judicial
review power to judge whether the areas of disclosure carved out by the
Legislature are reasonably adequate to safeguard the citizens' right to
information. The Court has to take a holistic view and adopt a balanced
approach, keeping in view the twin principles that the citizens' right
to information to know about the personal details of a candidate is not
an unlimited right and that at any rate, it has no fixed concept and
the legislature has freedom to choose between two reasonable
alternatives. It is not a proper approach to test the validity of
legislation only from the stand- point whether the legislation
implicitly and word to word gives effect to the directives issued by
the Court as an ad hoc measure when the field was unoccupied by
legislation. Once legislation is made, this Court has to make an
independent assessment in the process of evaluating whether the items
of information statutorily ordained are reasonably adequate to secure
the right of information to the voter so as to facilitate him to form a
fairly clear opinion on the merits and demerits of the candidates. In
embarking on this exercise, as already stated, this Court's directives
on the points of disclosure even if they be tentative or ad hoc in
nature, cannot be brushed aside, but should be given due weight. But, I
reiterate that the shape of legislation need not be solely controlled
by the directives issued to the Election Commission to meet an ad hoc
situation. As I said earlier, the right to information cannot be placed
in straight jacket formulae and the perceptions regarding the extent
and amplitude of this right are bound to vary. III. Section 33-B is
unconstitutional III. (1). The right to information cannot be frozen
and stagnated. In my view, the Constitutional validity of Section 33B
has to be judged from the above angle and perspective. Considered in
that light, I agree with the conclusion of M.B. Shah, J. that Section
33B does not pass the test of Constitutionality. The reasons are more
than one. Firstly, when the right to secure information about a
contesting candidate is recognized as an integral part of fundamental
right as it ought to be, it follows that its ambit, amplitude and
parameters cannot be chained and circumscribed for all time to come by
declaring that no information, other than that specifically laid down
in the Act, should be required to be given. When the legislation
delimiting the areas of disclosure was enacted, it may be that the
Parliament felt that the disclosure on other aspects was not necessary
for the time being. Assuming that the guarantee of right to information
is not violated by making a departure from the paradigms set by the
Court, it is not open to the Parliament to stop all further disclosures
concerning the candidate in future. In other words, a blanket ban on
dissemination of information other than that spelt out in the
enactment, irrespective of need of the hour and the future exigencies
and expedients is, in my view, impermissible. It must be remembered
that the concept of freedom of speech and expression does not remain
static. The felt necessities of the times coupled with experiences
drawn from the past may give rise to the need to insist on additional
information on the aspects not provided for by law. New situations and
march of events may demand the flow of additional facets of
information. The right to information should be allowed to grow rather
than being frozen and stagnated; but the mandate of Section 33B
prefaced by the non obstante clause impedes the flow of such
information conducive to the freedom of expression. In the face of the
prohibition under Section 33B, the Election Commission which is
entrusted with the function of monitoring and supervising the election
process will have to sit back with a sense of helplessness inspite of
the pressing need for insisting on additional information. Even the
Court may at times feel handicapped in taking necessary remedial steps
to enforce the right to information. In my view, the legislative
injunction curtailing the nature of information to be furnished by the
contesting candidates only to the specific matters provided for by the
legislation and nothing more would emasculate the fundamental right to
freedom of expression of which the right to information is a part. The
very objective of recognizing the right to information as part of the
fundamental right under Article 19(1)(a) in order to ensure free and
fair elections would be frustrated if the ban prescribed by Section 33B
is taken to its logical effect. III. (2) Impugned legislation fails to
effectuate right to information on certain vital aspects. The second
reason why Section 33B should be condemned is that by blocking the
ambit of disclosures only to what has been specifically provided for by
the amendment, the Parliament failed to give effect to one of the vital
aspects of information, viz., disclosure of assets and liabilities and
thus failed in substantial measure to give effect to the right to
information as a part of the freedom of expression. The right to
information which is now provided for by the legislature no doubt
relates to one of the essential points but in ignoring the other
essential aspect relating to assets and liabilities as discussed
hereinafter, the Parliament has unduly restricted the ambit of
information which the citizens should have and thereby impinged on the
guarantee enshrined in Article 19(1)(a). III. (3) How far the principle
that the Legislature cannot encroach upon the judicial sphere applies.
It is a settled principle of constitutional jurisprudence that the only
way to render a judicial decision ineffective is to enact a valid law
by way of amendment or otherwise fundamentally altering the basis of
the judgment either prospectively or retrospectively. The legislature
cannot overrule or supersede a judgment of the Court without lawfully
removing the defect or infirmity pointed out by the Court because it is
obvious that the legislature cannot trench on the judicial power vested
in the Courts. Relying on this principle, it is contended that the
decision of apex Constitutional Court cannot be set at naught in the
manner in which it has been done by the impugned legislation. As a
sequel, it is further contended that the question of altering the basis
of judgment or curing the defect does not arise in the instant case as
the Parliament cannot pass a law in curtailment of fundamental right
recognized, amplified and enforced by this Court. The contention that
the fundamental basis of the decision in Association for Democratic
Reforms case has not at all been altered by the Parliament, does not
appeal to me. I have discussed at length the real scope and ratio of
the judgment and the nature and character of directives given by this
Court to the Election Commission. As observed earlier, those directions
are pro tempore in nature when there was vacuum in the field. When once
the Parliament stepped in and passed the legislation providing for
right of information, may be on certain limited aspects, the void must
be deemed to have been filled up and the judgment works itself out,
though the proposition laid down and observations made in the context
of Article 19(1)(a) on the need to secure information to the citizens
will hold good. Now the new legislation has to be tested on the
touchstone of Article 19(1)(a). Of course, in doing so, the decision of
this Court should be given due weight and there cannot be marked
departure from the items of information considered essential by this
Court to effectuate the fundamental right to information. Viewed in
this light, it must be held that the Parliament did not by law provide
for disclosure of information on certain crucial points such as assets
and liabilities and at the same time, placed an embargo on calling for
further informations by enacting Section 33B. That is where Section 33B
of the impugned amendment Act does not pass the muster of Article 19(1)
(a), as interpreted by this Court. IV. Right to information with
reference to specific aspects: I shall now discuss the specifics of the
problem. With a view to promote the right to information, this Court
gave certain directives to the Election Commission which, as I have
already clarified, were ad hoc in nature. The Election Commission was
directed to call for details from the contesting candidates broadly on
three points, namely, (i) criminal record (ii) assets and liabilities
and (iii) educational qualification. The third amendment to R.P. Act
which was preceded by an Ordinance provided for disclosure of
information. How far the third amendment to the Representation of the
People Act, 2002 safeguards the right of information which is a part of
the guaranteed right under Article 19(1)(a), is the question to be
considered now with specific reference to each of the three points
spelt out in the judgment of this Court in Association for Democratic
Reforms case. IV. (1). Criminal background and pending criminal cases
against candidates-Section 33-A of the R.P. (3rd Amendment) Act. As
regards the first aspect, namely criminal record, the directives in
Association for Democratic Reforms case are two fold: "(i) whether the
candidate is convicted/ acquitted/discharged of any criminal case in
the past-if any, whether he is punished with imprisonment or fine and
(ii) prior to six months of filing of nomination, whether the candidate
is an accused in any pending case of any offence punishable with
imprisonment for two years or more and in which charge is framed or
cognizance is taken by the Court of law." As regards the second
directive, the Parliament has substantially proceeded on the same lines
and made it obligatory to the candidate to furnish information as to
whether he is accused of any offence punishable with imprisonment for
two years or more in a pending case in which a charge has been framed
by the competent Court. However, the case in which cognizance has been
taken but charge has not been framed is not covered by Clause (i) of
Section 33A(I). The Parliament having taken the right step of
compelling disclosure of the pendency of cases relating to major
offences, there is no good reason why it failed to provide for the
disclosure of the cases of the same nature of which cognizance has been
taken by the Court. It is common knowledge that on account of variety
of reasons such as the delaying tactics of one or the other accused and
inadequacies of prosecuting machinery, framing of formal charges get
delayed considerably, especially in serious cases where committal
procedure has to be gone through. On that account, the voter/citizen
shall not be denied information regarding cognizance taken by the Court
of an offence punishable with imprisonment for two years or more. The
citizen's right to information, when once it is recognized to be part
of the fundamental right under Article 19(I)(a), cannot be truncated in
the manner in which it has been done. Clause (i) of Section 33(A)(I)
therefore falls short of the avowed goal to effectuate the right of
information on a vital aspect. Cases in which cognizance has been taken
should therefore be comprehended within the area of information
accessible to the voters/citizens, in addition to what is provided for
in Clause (i) of Section 33A. Coming to Clause (ii) of Section 33A(I),
the Parliament broadly followed the pattern shown by the Court itself.
This Court thought it fit to draw a line between major/serious offences
and minor/non-serious offences while giving direction No.2 (vide Para
48). If so, the legislative thinking that this distinction should also
hold good in regard to past cases cannot be faulted on the ground that
the said clause fails to provide adequate information about the
candidate. If the Parliament felt that the convictions and sentences of
the long past related to petty/non serious offences need not be made
available to electorate, it cannot be definitely said that the valuable
right to information becomes a casuality. Very often, such offences by
and large may not involve moral turpitude. It is not uncommon, as one
of the learned senior counsel pointed out that the political
personalities are prosecuted for politically related activities such as
holding demonstrations and visited with the punishment of fine or short
imprisonment. Information regarding such instances may not be of real
importance to the electorate in judging the worth of the relative
merits of the candidates. At any rate, it is a matter of perception and
balancing of various factors, as observed supra. The legislative
judgment cannot be faulted merely for the reason that the pro tempore
directions of this Court have not been scrupulously followed. As
regards acquittals, it is reasonable to take the view that such
information will not be of much relevance inasmuch as acquittal prima
facie implies that the accused is not connected with the crime or the
prosecution has no legs to stand. It is not reasonable to expect that
from the factum of prosecution resulting in the acquittal, the
voters/citizens would be able to judge the candidate better. On the
other hand, such information in general has the potential to send
misleading signals about the honesty and integrity of the candidate. I
am therefore of the view that as regards past criminal record, what the
Parliament has provided for is fairly adequate. One more aspect which
needs a brief comment is the exclusion of offences referred to in sub-
Sections (1) and (2) of Section 8 of the R.P. Act, 1951. Section 8
deals with disqualification on conviction for certain offences. Those
offences are of serious nature from the point of view of national and
societal interest. Even the existing provisions, viz., Rule 4A inserted
by Conduct of Elections (Amendment) Rules, 2002 make a provision for
disclosure of such offences in the nomination form. Hence, such
offences have been excluded from the ambit of Clause (ii) of Section
33A. IV. (2). Assets and liabilities Disclosure of assets and
liabilities is another thorny issue. If the right to information is to
be meaningful and if it is to serve its avowed purpose, I am of the
considered view that the candidate entering the electoral contest
should be required to disclose the assets and liabilities (barring
articles of household use). A member of Parliament or State Legislature
is an elected representative occupying high public office and at the
same time, he is a 'public servant' within the meaning of Prevention of
Corruption Act as ruled by this Court in the case of P.V. Narasimha Rao
Vs. State [(1998) 4 SCC 626]. They are the repositories of public
trust. They have public duties to perform. It is borne out by
experience that by virtue of the office they hold there is a real
potential for misuse. The public awareness of financial position of the
candidate will go a long way in forming an opinion whether the
candidate, after election to the office had amassed wealth either in
his own name or in the name of family members viz., spouse and
dependent children. At the time when the candidate seeks re-election,
the citizens/voters can have a comparative idea of the assets before
and after the election so as to assess whether the high public office
had possibly been used for self-aggrandizement. Incidentally, the
disclosure will serve as a check against misuse of power for making
quick money-a malady which nobody can deny, has been pervading the
political spectrum of our democratic nation. As regards liabilities,
the disclosure will enable the voter to know, inter alia, whether the
candidate has outstanding dues payable to public financial institutions
or the Government. Such information has a relevant bearing on the
antecedents and the propensities of the candidate in his dealings with
public money. 'Assets and liabilities' is one of the important aspects
to which extensive reference has been made in Association for
Democratic Reforms case. The Court did consider it, after an elaborate
discussion, as a vital piece of information as far as the voter is
concerned. But, unfortunately, the observations made by this Court in
this regard have been given a short shrift by the Parliament with
little realization that they have significant bearing on the right to
get information from the contesting candidates and such information is
necessary to give effect to the freedom of expression. As regards the
purpose of disclosure of assets and liabilities, I would like to make
it clear that it is not meant to evaluate whether the candidate is
financially sound or has sufficient money to spend in the election.
Poor or rich are alike entitled to contest the election. Every citizen
has equal accessibility in public arena. If the information is meant to
mobilize public opinion in favour of an affluent/financially sound
candidate, the tenet of socialistic democracy and the concept of
equality so firmly embedded in our Constitution will be distorted. I
cannot also share the view that this information on assets would enable
the public to verify whether unaccounted money played a part in
contesting the election. So long as the Explanation-I to Section 77 of
R.P. Act, 1951 stands and the contributions can legitimately come from
any source, it is not possible for a citizen/voter to cause a
verification to be made on those lines. In my opinion, the real
purposes of seeking information in regard to assets and liabilities are
those which I adverted to in the preceding paragraph. It may serve
other purposes also, but, I have confined myself to the relevancy of
such disclosure vis--vis right to information only. It has been
contended with much force that the right to information made available
to the voters/citizens by judicial interpretation has to be balanced
with the right of privacy of the spouse of the contesting candidate and
any insistence on the disclosure of assets and liabilities of the
spouse invades his/her right to privacy which is implied in Article 21.
After giving anxious consideration to this argument, I am unable to
uphold the same. In this context, I would like to recall the apt words
of Mathew J, in Gobind Vs. State of M.P. [(1975) 2 SCC 148]. While
analyzing the right to privacy as an ingredient of Article 21, it was
observed: "There can be no doubt that privacy- dignity claims deserve
to be examined with care and to be denied only when an important
countervailing interest is shown to be superior" (emphasis supplied).
It was then said succinctly: "If the Court does find that a claimed
right is entitled to protection as a fundamental privacy right, a law
infringing it must satisfy the compelling State interest test. Then the
question would be whether a State interest is of such paramount
importance as would justify an infringement of the right." It was
further explained- "Privacy primarily concerns the individual. It
therefore relates to and overlaps with the concept of liberty. The most
serious advocate of privacy must confess that there are serious
problems of defining the essence and scope of the right. Privacy
interest in autonomy must also be placed in the context of other rights
and values." By calling upon the contesting candidate to disclose the
assets and liabilities of his/her spouse, the fundamental right to
information of a voter/citizen is thereby promoted. When there is a
competition between the right to privacy of an individual and the right
to information of the citizens, the former right has to be subordinated
to the latter right as it serves larger public interest. The right to
know about the candidate who intends to become a public figure and a
representative of the people would not be effective and real if only
truncated information of the assets and liabilities is given. It cannot
be denied that the family relationship and social order in our country
is such that the husband and wife look to the properties held by them
as belonging to the family for all practical purposes, though in the
eye of law the properties may distinctly belong to each of them. By and
large, there exists a sort of unity of interest in the properties held
by spouses. The property being kept in the name of the spouse benami is
not unknown in our country. In this situation, it could be said that a
countervailing or paramount interest is involved in requiring a
candidate who chooses to subject himself/herself to public gaze and
scrutiny to furnish the details of assets and liabilities of the spouse
as well. That is one way of looking at the problem. More important, it
is to be noted that the Parliament itself accepted in principle that
not only the assets of the elected candidates but also his or her
spouse and dependent children should be disclosed to the constitutional
authority and the right of privacy should not come in the way of such
disclosure; but, the hitch lies in the fact that the disclosure has to
be made to the Speaker or Chairman of the House after he or she is
elected. No provision has been made for giving access to the details
filed with the presiding officer of the House. By doing so, the
Parliament has omitted to give effect to the principle, which it
rightly accepted as a step in aid to promote integrity in public life.
Having accepted the need to insist on disclosure of assets and
liabilities of the elected candidate together with those of other
family members, the Parliament refrained from making a provision for
furnishing the information at the time of filing the nomination. This
has resulted in jeopardizing the right to information implicitly
guaranteed by Article 19(1)(a). Therefore, the provision made in
Section 75A regarding declaration of assets and liabilities of the
elected candidates to the presiding officer has failed to effectuate
the right to information and the freedom of expression of the
voters/citizens. IV. (3). Educational qualifications The last item left
for discussion is about educational qualifications. In my view, the
disclosure of information regarding educational qualifications of a
candidate is not an essential component of the right to information
flowing from Article 19(1)(a). By not providing for disclosure of
educational qualifications, it cannot be said that the Parliament
violated the guarantee of Article 19(1)(a). Consistent with the
principle of adult suffrage, the Constitution has not prescribed any
educational qualification for being Member of the House of the People
or Legislative Assembly. That apart, I am inclind to think that the
information relating to educational qualifications of contesting
candidates does not serve any useful purpose in the present context and
scenario. It is a well known fact that barring a few exceptions, most
of the candidates elected to Parliament or the State Legislatures are
fairly educated even if they are not Graduates or Post-Graduates. To
think of illiterate candidates is based on a factually incorrect
assumption. To say that well educated persons such as those having
graduate and post- graduate qualifications will be able to serve the
people better and conduct themselves in a better way inside and outside
the House is nothing but overlooking the stark realities. The
experience and events in public life and the Legislatures have
demonstrated that the dividing line between the well educated and less
educated from the point of view of his/her calibre and culture is
rather thin. Much depends on the character of the individual, the sense
of devotion to duty and the sense of concern to the welfare of the
people. These characteristics are not the m
onopoly of well educated persons. I do not think that it is necessary
to supply information to the voter to facilitate him to indulge in an
infructuous exercise of comparing the educational qualifications of the
candidates. It may be that certain candidates having exceptionally high
qualifications in specialized field may prove useful to the society,
but it is natural to expect that such candidates would voluntarily come
forward with an account of their own academic and other talents as a
part of their election programme. Viewed from any angle, the
information regarding educational qualifications is not a vital and
useful piece of information to the voter, in ultimate analysis. At any
rate, two views are reasonably possible. Therefore, it is not possible
to hold that the Parliament should have necessarily made the provision
for disclosure of information regarding educational qualifications of
the candidates. V. Conclusions: Finally, the summary of my conclusions:
1. Securing information on the basic details concerning the candidates
contesting for elections to the Parliament or State Legislature
promotes freedom of expression and therefore the right to information
forms an integral part of Article 19(1)(a). This right to information
is, however, qualitatively different from the right to get information
about public affairs or the right to receive information through the
Press and electronic media, though, to a certain extent, there may be
overlapping. 2. The right to vote at the elections to the House of
people or Legislative Assembly is a constitutional right but not merely
a statutory right; freedom of voting as distinct from right to vote is
a facet of the fundamental right enshrined in Article 19(1)(a). The
casting of vote in favour of one or the other candidate marks the
accomplishment of freedom of expression of the voter. 3. The directives
given by this Court in Union of India Vs. Association for Democratic
Reforms [(2002) 5 SCC 294] were intended to operate only till the law
was made by the Legislature and in that sense 'pro tempore' in nature.
Once legislation is made, the Court has to make an independent
assessment in order to evaluate whether the items of information
statutorily ordained are reasonably adequate to secure the right of
information available to the voter/citizen. In embarking on this
exercise, the points of disclosure indicated by this Court, even if
they be tentative or ad hoc in nature, should be given due weight and
substantial departure therefrom cannot be countenanced. 4. The Court
has to take a holistic view and adopt a balanced approach in examining
the legislation providing for right to information and laying down the
parameters of that right. 5. Section 33B inserted by the Representation
of People (3rd Amendment) Act, 2002 does not pass the test of
constitutionality firstly for the reason that it imposes blanket ban on
dissemination of information other than that spelt out in the enactment
irrespective of the need of the hour and the future exigencies and
expedients and secondly for the reason that the ban operates despite
the fact that the disclosure of information now provided for is
deficient and inadequate. 6. The right to information provided for by
the Parliament under Section 33A in regard to the pending criminal
cases and past involvement in such cases is reasonably adequate to
safeguard the right to information vested in the voter/citizen.
However, there is no good reason for excluding the pending cases in
which cognizance has been taken by Court from the ambit of disclosure.
7. The provision made in Section 75A regarding declaration of assets
and liabilities of the elected candidates to the Speaker or the
Chairman of the House has failed to effectuate the right to information
and the freedom of expression of the voters/citizens. Having accepted
the need to insist on disclosure of assets and liabilities of the
elected candidate together with those of spouse or dependent children,
the Parliament ought to have made a provision for furnishing this
information at the time of filing the nomination. Failure to do so has
resulted in the violation of guarantee under Article 19(1)(a). 8. The
failure to provide for disclosure of educational qualification does
not, in practical terms, infringe the freedom of expression. 9. The
Election Commission has to issue revised instructions to ensure
implementation of Section 33A subject to what is laid down in this
judgment regarding the cases in which cognizance has been taken. The
Election Commission's orders related to disclosure of assets and
liabilities will still hold good and continue to be operative. However,
direction No.4 of para 14 insofar as verification of assets and
liabilities by means of summary enquiry and rejection of nomination
paper on the ground of furnishing wrong information or suppressing
material information should not be enforced. Accordingly, the writ
petitions stand disposed of without costs.
STATE ELECTION COMMISSION
rd
3 Floor, Buddha Bhavan, M.G.Road, Secunderabad – 500 003

ORDER

Order No.809/SEC-B1/2003 Dated:06.09.2003


Sub:- Disclosure of information regarding Criminal Antecedents, Assets
and Liabilities and Educational Qualifications by candidates
contesting Local Body elections.

Ref:- 1. Judgement dated 2.5.2002 of the Hon’ble Supreme Court of


India in Civil Appeal No.7178 of 2002.
2. ECI Order No.3/ER/2002/JS-II/Vol-III, dated 28th June,2002.
3. The Representation of People (Third Amendment) Act,2002
(Central Act No.72) of 2002.
4. Judgement dated the 13th March,2003 of the Hon’ble Supreme
Court in W.P. (Civil) Nos 490, 509 and 515 of 2002.

The Hon’ble Supreme Court of India in its Judgement 1st cited directed the
Election Commission of India to call for information by means of a sworn
Affidavit from each candidate contesting election to Parliament or State
Legislature, as necessary part of his nomination paper 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
framed or cognizance is taken by the Court of law. If so, the
details thereof;
3. The assets (immovable, movable, bank balances etc.) of a
candidate and of his/her spouse and that of dependents.
4. Liabilities, if any, particularly whether there are any over dues of
any public financial institution or Government dues.
5. The educational qualifications of the candidate.
2. Following the said judgement of the Hon’ble Supreme Court, the Election
Commission of India issued the order second cited in exercise of its plenary
powers under Article 324 of the Constitution of India directing the every
candidate filing nomination paper for any election to the Council of States,
House of the People, Legislative Assembly of a State or the Legislative Council
of a State to furnish information required by the Supreme Court as stated above
by means of a sworn affidavit in the format appended to the said order, as a
necessary part of the nomination paper. Thereupon, the Government of India
promulgated The Representation of the People (Amendment) Ordinance, 2002
(Ordinance No.4 of 2002) which was subsequently replaced by the
Representation of the People (Third amendment) Act, 2002 which brought
about the following Legislative changes namely:-
i. Section 33A was inserted requiring every candidate to furnish
information, apart from any information which he is required to
furnish, under the Representation of the People Act,1951 or the
Rules made thereunder in his nomination paper delivered under
sub-section (1) of section 33, as to whether,-
a. he is accused of any offence punishable with
imprisonment for two years or more in a pending
case in which a charge has been framed by the Court
of competent jurisdiction;
b. he has been convicted of an offence (other
than any offence referred to in sub-section (1) or
sub-section (2), or covered in sub-section (3), of
section 8) and sentenced to imprisonment for one
year or more.
i. Section 33B has been inserted, stating that no candidate is liable
to disclose or furnish any such information in respect of his
election which is not required to be disclosed or furnished under
the Representation of the People Act,1951 or the Rules made
thereunder, notwithstanding anything contained in any judgement,
decree or order of any Court or any direction, order or any other
instruction issued by the Election Commission of India.
ii. Section 75A has been inserted to provide for declaring the assets
and liabilities to the Presiding Officer of the concerned House
after election within ninety days from the date of taking oath or
affirmation as Member.
iii. No requirement for giving information on educational
qualifications is provided.
iv. Penalty has been provided for giving false information in the
affidavit.
3. The Representation of the People (Third Amendment Act) 2002 has been
questioned in W.P.Nos. 490,509 and 515 of 2002 before the Hon’ble Supreme
Court of India. In its Judgement dated 13th March,2003 the Hon’ble Supreme
Court held that:
i. Section 33B is unconstitutional;
ii. The information required to be provided in
respect of criminal antecedents in the newly inserted
section 33A is reasonably adequate to safeguard the
right to information vested in the voter/citizen.
iii. The provisions made in newly inserted
sections 75A regarding declaration of assets and
liabilities of the elected candidate to the Speaker or
Chairman of the House has failed to effectuate the
right to information and freedom of expression of the
voters/citizens and that Parliament ought to have
made a provision for furnishing this information at
the time of filing nomination;
iv. Failure to provide for disclosure of
educational qualifications does not, in practicable
terms, infringe the freedom of expression; and
v. The Election Commission of India has to
issue revised instructions to ensure implementation
of the newly inserted section 33A and the earlier
orders dated 28th June,2002 of the Election
Commission of India relating to disclosure of assets
and liabilities which will still hold good and continue
to be operate. However, in so far as verification of
assets and liabilities by means of summary enquiry
and rejection of nomination paper on the ground of
furnishing wrong information or suppressing
material information should not be enforced.
4. Following the Judgement of the Hon’ble Supreme Court dated 13.3.2003, the
Election Commission of India issued revised orders fourth cited, the substance
of which is as follows:-
i. Every candidate at the time of filing his nomination paper for any
election to the Council of States, House of the People, Legislative
Assembly of a State or the Legislative Council of a State having
such a Council, shall furnish full and complete information in
regard to the matters specified by the Hon’ble Supreme Court in
an affidavit, the format of which is annexed to the order.
ii. The said affidavit by each candidate shall be duly sworn before a
Magistrate of the First Class or a Notary Public or a
Commissioner of Oaths appointed by the High Court of the State
concerned.
iii. Non-furnishing of the affidavit by any candidate shall be
considered to be violation of the order of the Hon’ble Supreme
Court and the nomination of the candidate concerned shall be
liable to rejection by the Returning Officer at the time of scrutiny
of nominations for such non-furnishing of the affidavit.
iv. The information so furnished by each candidate in the aforesaid
affidavit shall be disseminated by the respective Returning
Officers by displaying a copy of the affidavit on the notice board
of his office and also by making the copies thereof available
freely and liberally to all other candidates and the representatives
of the print and electronic media.
v. If any rival candidate furnishes information to the contrary by
means of a duly sworn affidavit, then such affidavit of the rival
candidate shall also be disseminated along with the affidavit of the
candidate concerned in the manner directed above.
vi. It is also clarified that the earlier direction contained in para 14(4)
of its earlier order dated 28th June,2002, in so far as verification of
assets and liabilities by means of summary enquiry and rejection
of nomination paper on the ground of furnishing wrong
information or suppressing material information is not enforceable
in pursuance of the order dated 13th march,2003 of the Apex
Court.
5. Though the aforesaid two judgements of the Supreme Court were delivered
in the context of securing to the voters the right to information with regard to
the candidates contesting elections to the Legislative Assembly of a State or the
Legislative council of a State having such Council and the Parliament, the spirit
thereof equally applies to the voters exercising their franchise in elections to
local bodies also, which have been conferred with Constitutional status. The
democratic process should be common to all levels of electoral offices in the
pyramid starting from the Gram Sabha to Lok Sabha. The Commonality of the
powers between the State Election Commission and the Election Commission
of India can be seen from the fact that Article 243-K is exactly
in Parimateria with Article 324 of the Constitution of India. In view of this,
the State Election Commission decided that the orders of the Supreme Court of
India should be made applicable to elections to local bodies also.
6. Accordingly, the State Election Commission, in exercise of its powers under
article 243K read with article 243ZA of the Constitution of India and sections
200 and 201 of the Andhra Pradesh Panchayat Raj Act, 1994 (Act 13 of 1994),
section 10A of the Andhra Pradesh Municipalities Act,1965 (Act VI of 1965)
and section 9 of the Hyderabad Municipal Corporation Act,1955 (Act II of
1956) in its application to Hyderabad Municipal Corporation or any other
Municipal Corporation, constituted under the Andhra Pradesh Municipal
Corporations Act,1994 (Act 25 of 1994) and of all other powers hereunto
enabling it in this behalf, hereby directs as follows:-
i. Every candidate contesting elections to the office of Member or
Sarpanch of a Gram Panchayat, Member of MPTC or ZPTC or
Member of a Municipality, or his propposer, shall along with the
nomination paper furnish full and complete information, apart
from any other information which he is required to furnish, in
regard to all the matters specified in the format of self declaration
as in Annexure-I to this Order attested by two witnesses.
ii. Every candidate contesting to the office of the Chairman of a
Municipality or to the office of Member or Mayor of a Municipal
Corporation, or his proposer shall, along with his nomination
papers furnish full and complete information, apart from any other
information which he is required to furnish, in regard to all the
matters specified in the format of the affidavit as in Annexure-II
to this Order sworn before a Notary Public or a Magistrate of the
First Class.
iii. Non furnishing of a declaration or affidavit as the case may be, by
any candidate or his proposer, shall be considered to be a violation
of this order and the nomination of the candidate concerned shall
be liable to be rejected by the Election Officer/Returning Officer,
as the case may be, at the time of scrutiny of nomination of the
concerned candidate.
iv. The information so furnished by each candidate in the aforesaid
declaration or affidavit, as the case may be, shall be disseminated
by the concerned Election Officer/Returning Officer by displaying
a copy of the declaration/affidavit on the notice board of his office
and also by making copies thereof available to all other candidates
on demand and to the representatives of the print and electronic
media.
v. If any rival candidate furnishes information to the contrary, by
means of a declaration attested by two witnesses or by means of
sworn affidavit, then such declaration/sworn affidavit of the rival
candidate shall also be disseminated along with the
declaration/affidavit of the candidate concerned in the manner
directed above; and
vi. The Election Officer, or as the case may be, the Returning Officer
shall not verify by means of a summary enquiry or otherwise the
correctness or otherwise of the information furnished in the
declaration/affidavit and reject the nomination paper on the
ground that in his opinion the information furnished is incorrect.
7. This order applies to all elections to local bodies for which election
notification is given on or after 2nd October, 2003.

Election Commission’s order no. 3/ER/2003/JS-II dated 27.03.2003

Subject: Supreme Court’s order dated 13th March, 2003 relating to right to
information of electors regarding criminal antecedents, assets and liabilities
and educational qualifications of candidates - implementation of the order.

ORDER

1. Whereas, the superintendence, direction and control, inter alia, of all


elections to Parliament and to the Legislature of every State are vested in
the Election Commission by Article 324 (1) of the Constitution of India;

2. And whereas, the Hon’ble Supreme Court of India had, by its order dated
2nd May, 2002, in Civil Appeal No. 7178 of 2001 - Union of India Vs
Association for Democratic Reforms and another, held as follows: -

“(1) The jurisdiction of the Election Commission is wide enough to include


all powers necessary for smooth conduct of elections and the word
‘elections’ is used in a wide sense to include the entire process of
election which consists of several stages and embraces many
steps.

(2) The limitation on plenary character of power is when the Parliament or


state legislature has made a valid law relating to or in connection
with elections, the Commission is required to act in conformity with
the said provisions. In case where law is silent, Art 324 is a
reservoir of power to act for the avowed purpose of having free and
fair election. Constitution has taken care of leaving scope for
exercise of residuary power by the Commission in its own right as a
creature of the Constitution in the infinite variety of situations that
may emerge from time to time in a large democracy, as every
contingency could not be foreseen or anticipated by the enacted
laws or the rules. By issuing necessary directions Commission can
fill the vacuum till there is legislation on the subject. In Kanhiya Lal
Omar’s case (AIR 1986 SC 111), the court construed the
expressions ‘superintendence, direction and control’ in Art 324(1)
and held that a direction may mean an order issued to a particular
individual or a precept which may have to follow and it may be a
specific or a general order and such phrase should be construed
liberally empowering the Election Commission to issue such orders.

(3) The word ‘elections’ includes the entire process of election which
consists of several stages and it embraces many steps, some of
which have an important bearing on the process of choosing a
candidate. Fair election contemplates disclosure by the candidate of
his past including the assets held by him so as to give a proper
choice to the candidate (sic) (elector) according to his thinking and
opinion. As stated earlier, in Common Cause case [(1996) 2 SCC
752], the court dealt with a contention that elections in the country
are fought with the help of money power which is gathered from
black sources and once elected to power, it becomes easy to collect
tons of black money, which is used for retaining power and for re-
election. If, on affidavit a candidate is required to disclose the assets
held by him at the time of election, voter can decide whether he
could be re-elected even in case where he has collected tons of
money.

XXX XXX

(4) To maintain the purity of elections and in particular to bring


transparency in the process of election, the Commission can ask
the candidates about the expenditure incurred by the political
parties and this transparency in the process of election would
include transparency of a candidate who seeks election or re-
election. In a democracy, the electoral process has a strategic role.
The little man of this country would have basic elementary right to
know full particulars of a candidate who is to represent him in
Parliament where laws to bind his liberty and property may be
enacted.

(5) The right to get information in democracy is recognized all


throughout and it is natural right flowing from the concept of
democracy. At this stage, we would refer to Art 19(1) and (2) of the
International Covenant of Civil and Political Rights which is as
under:-

(1) Everyone shall have the right to hold opinions without


interference.

(2) Everyone shall have the right to freedom of expression;


this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through
any other media of his choice.

(6) Cumulative reading of plethora of decisions of this court as


referred to, it is clear that if the field meant for legislature and
executive is left unoccupied detrimental to the public interest, this
court would have ample jurisdiction under Art 32 read with Arts 141
and 142 of the Constitution to issue necessary directions to the
executive to subserve public interest.

(7) Under our Constitution, Art 19(1 )(a) provides for freedom of
speech and expression. Voters’ speech or expression in case of
election would include casting of votes that is to say, voter speaks
out or expresses by casting vote. For this purpose, information
about the candidate to be selected is must. Voter’s (little man-
citizen’s) right to know antecedents including criminal past of his
candidate contesting election for MP or MLA is much more
fundamental and basic for survival of democracy. The little man may
think over before making his choice of electing law breakers as law
makers”.

3. And whereas, the Hon’ble Supreme Court, by its aforesaid order dated
2nd May, 2002, had directed as follows: -

“The Election Commission is directed to call for information on


affidavit by issuing necessary order in exercise of its power under
art 324 of the Constitution of India from each candidate seeking
election to Parliament 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 framed or cognizance is taken by the court of law. If so, the
details thereof.

(3) The assets (immovable, movable, bank balances etc) of a


candidate and of his/her spouse and that of dependants.

(4) Liabilities, if any, particularly whether there are any over dues of
any public financial institution or government dues.

(5) The educational qualifications of the candidate.”

4. And whereas, the Hon’ble Supreme Court, in its aforesaid order dated 2nd
May, 2002, further observed that ‘the Election Commission has from time
to time issued instructions in order to meet with the situation where the
field is unoccupied by the legislation’ and had further directed that ‘the
norms and modalities to carry out and give effect to the aforesaid
directions should be drawn up properly by the Election Commission as
early as possible and in any case within two months’;

5. And whereas, the Election Commission had, in pursuance of the above


referred Judgement and Order dated 2nd May, 2002 of the Hon’ble
Supreme Court and in exercise of the powers, conferred on it by Article
324 of the Constitution, directed by an Order dated 28th June, 2002, inter
alia, in para 14 of the said Order as follows:-

“(1) Every candidate at the time of filing his nomination paper for any
election to the Council of States, House of the People, Legislative
Assembly of a State or the Legislative Council of a State having
such a council, shall furnish full and complete information in regard
to all the five matters, specified by the Hon’ble Supreme Court and
quoted in para 5 above (reproduced in para 3 herein), in an affidavit,
the format whereof is annexed hereto as Annexure-1 to this order.

(2) The said affidavit by each candidate shall be duly sworn before a
Magistrate of the First Class or a Notary Public or a Commissioner
of Oaths appointed by the High Court of the State concerned.

(3) Non-furnishing of the affidavit by any candidate shall be


considered to be violation of the order of the Hon’ble Supreme
Court and the nomination of the candidate concerned shall be liable
to rejection by the returning officer at the time of scrutiny of
nominations for such non- furnishing of the affidavit.
(4) Furnishing of any wrong or incomplete information or
suppression of any material information by any candidate in or from
the said affidavit may also result in the rejection of his nomination
paper where such wrong or incomplete information or suppression
of material information is considered by the returning officer to be a
defect of substantial character, apart from inviting penal
consequences under the Indian Penal Code for furnishing wrong
information to a public servant or suppression of material facts
before him:

Provided that only such information shall be considered to be wrong


or incomplete or amounting to suppression of material information
as is capable of easy verification by the returning officer by
reference to documentary proof adduced before him in the summary
inquiry conducted by him at the time of scrutiny of nominations
under Section 36 (2) of the Representation of the People Act 1951,
and only the information so verified shall be taken into account by
him for further consideration of the question whether the same is a
defect of substantial character.

(5) The information so furnished by each candidate in the aforesaid


affidavit shall be disseminated by the respective returning officers
by displaying a copy of the affidavit on the notice board of his office
and also by making the copies thereof available freely and liberally
to all other candidates and the representatives of the print and
electronic media.

(6) If any rival candidate furnishes information to the contrary, by


means of a duly sworn affidavit, then such affidavit of the rival
candidate shall also be disseminated along with the affidavit of the
candidate concerned in the manner directed above.”;

6. And whereas, the President of India promulgated the Representation of


People (Amendment) Ordinance, 2002 (No.4 of 2002) on the 24th
August, 2002 further to amend the Representation of the People Act,
1951 inserting Sections 33A and 33B and 125A and amending Section
169 of the Representation of the People Act, 1951;

7. And whereas, by virtue of Section 33B of the said Ordinance, the Order
of the Election Commission dated the 28th June, 2002, was rendered
ineffective and the said Section 33B read as under:-

“Section 33B.- Notwithstanding anything contained in any


judgement, decree or order of any court or any direction, order or
any other instruction 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 made thereunder.”;

8 And whereas, the Government of India by notification dated 3rd


September, 2002 amended the Conduct of the Elections Rules, 1961 to
give effect to the said Ordinance;

9. And whereas, the Association for Democratic Reforms, People’s Union for
Civil Liberties, and Lok Satta, filed three separate writ petitions before the
Hon’ble Supreme Court of India challenging the constitutional validity of
the Presidential Ordinance dated 24th August, 2002;

10. And whereas, by the Notification dated the 28th December, 2002, the
Representation of the People Act, 1951 was amended by the
Representation of the People (Third Amendment) Act, 2002 which
substituted the aforesaid Ordinance dated 24th August, 2002;

11. And whereas, the said petitioners filed applications to treat the said writ
petitions as challenging the constitutional validity of the Representation of
the People (Third Amendment) Act, 2002;
12. And whereas, the Hon’ble Supreme Court in its order/judgement, dated the
13th March, 2003 declared Section 33B of the Amended Act as illegal,
null and void;

13. And whereas, the following directions were issued in the Judgement of
Hon’ble Mr. Justice R.V. Reddi, which was concurred by Mr. Justice D.M.
Dharmadhikari:-

“xxxxxxxxxxxx

“The right to information provided for by the Parliament under


Section 33A in regard to the pending criminal cases and past
involvement in such cases is reasonably adequate to safeguard the
right to information vested in the voter/citizen. However, there is no
good reason for excluding the pending cases in which cognizance
has been taken by Court from the ambit of disclosure.”

Xxxxxxxxxxxx

“The Election Commission has to issue revised instructions to


ensure implementation of Section 33A subject to what is laid down
in this judgement regarding the cases in which cognizance has
been taken. The Election Commission’s orders related to disclosure
of assets and liabilities will still hold good and continue to be
operative. However, direction No.4 of para 14 insofar as verification
of assets and liabilities by means of summary enquiry and rejection
of nomination paper on the ground of furnishing wrong information
or suppressing material information should not be enforced.”;

14. And whereas, the Judgement of Hon’ble Mr. Justice M.B. Shah, also
held that Section 33B was illegal, null and void and further that the
Election Commission would be required to revise its instructions in the
light of the directions therein as under:-

“It is true that the aforesaid directions issued by the Election


Commission is not under challenge but at the same time prima facie
it appears that the Election Commission is required to revise its
instructions in the light of directions issued in Association for
Democratic Reforms case (supra) and as provided under the
Representation of the People Act and its 3rd Amendment.”;

15. And whereas, by virtue of the Judgement dated the 13th March, 2003
of the Supreme Court declaring Section 33B of the Representation of the
People Act, 1951 to be illegal, null and void, the earlier instructions of the
Election Commission dated 28th June, 2002 would continue to be
operative subject to the aforementioned directions of the Supreme Court,
and are therefore required to be revised and reissued;

16. Now, therefore, the Election Commission, in pursuance of the above


referred order dated 13th March, 2003, of the Hon’ble Supreme Court and
in exercise of the powers, conferred on it by Article 324 of the
Constitution, of superintendence, direction and control, inter alia, of
conduct of elections to Parliament and State Legislatures, hereby issues,
in supersession of its earlier order dated 28th June, 2002, its revised
directions as follows: -

(1) Every candidate at the time of filing his nomination paper for any
election to the Council of States, House of the People, Legislative
Assembly of a State or the Legislative Council of a State having
such a council, shall furnish full and complete information in regard
to the matters specified by the Hon’ble Supreme Court and quoted
in paras 13 and 14 above, in an affidavit, the format whereof is
annexed hereto as Annexure-1 to this order.

(2) The said affidavit by each candidate shall be duly sworn before a
Magistrate of the First class or a Notary Public or a Commissioner
of Oaths appointed by the High Court of the State concerned.
(3) Non-furnishing of the affidavit by any candidate shall be
considered to be violation of the order of the Hon’ble Supreme
Court and the nomination of the candidate concerned shall be liable
to rejection by the returning officer at the time of scrutiny of
nominations for such non-furnishing of the affidavit.

(4) The information so furnished by each candidate in the aforesaid


affidavit shall be disseminated by the respective returning officers
by displaying a copy of the affidavit on the notice board of his office
and also by making the copies thereof available freely and liberally
to all other candidates and the representatives of the print and
electronic media (5) If any rival candidate furnishes information to
the contrary, by means of a duly sworn affidavit, then such affidavit
of the rival candidate shall also be disseminated along with the
affidavit of the candidate concerned in the manner directed above.

17. For the removal of doubt, it is hereby clarified that the earlier direction
contained in para 14 (4) of the earlier order dated 28th June, 2002, in so
far as verification of assets and liabilities by means of summary enquiry
and rejection of nomination paper on the ground of furnishing wrong
information or suppressing material information is not enforceable in
pursuance of the order dated 13th March, 2003 of the Apex Court. It is
further clarified that apart from the affidavit in Annexure-1 hereto referred
to in para 16(1) above, the candidate shall have to comply with all the
other requirements as spelt out in the Representation of the People Act,
1951, as amended by the Representation of the People (Third
Amendment) Act, 2002, and the Conduct of Elections Rules, 1961, as
amended by the Conduct of Elections (Amendment) Rules , 2002.

18. In so far as elections to the Legislative Assembly and Legislative Council of


the State of Jammu and Kashmir are concerned, the directions of the
Election Commission contained in the preceding para 16 shall be deemed
to have been issued under the provisions of Section 138 of the
Constitution of Jammu and Kashmir which are akin to Article 324 (1) of
the Constitution of India and vest the superintendence, direction and
control of the conduct of all elections to either House of the Legislature of
that State in the Election Commission.

19. All Returning Officers shall ensure that the copies of affidavit prescribed herein by the
Commission shall be delivered to the candidates along with the forms of nomination papers
as part of the nomination paper.