Right of voter to know antecedents of candidates contesting elections judgment analysis
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) & ANR.
Vs.
UNION OF INDIA
Citations: 2003(2) 3CR 1136; 2003(4) SCC 399; 2003(2) JT 528: 2003 (3) Scale 263; AIR 2003 SC 2363; 2003(3) Supreme 93: 2003 (2) SLT 694: 2003(5) SRJ 197: 2003(2) KHCACJ 674.
The bench of Justices M.B. SHAH, P.VENKATARAMA REDDI AND D.M. DHARMADHIKARI
BRIEF FACTS
The Supreme Court in Union of India v. Assn. for Democratic Reforms. "(2002) 5 SCC 294 at para 48 gave the following directions:
“48: The Election Commission is directed to call for information on affidavit by Issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past if any, whether he is punished with imprisonment or fine.
(2) Prior to six months of filing of nomination, whether, the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balance etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.
(5) The educational qualifications of the candidate."
Subsequently, the Representation of the People (Amendment) Ordinance, 2002 (4 of 2002) was promulgated on 24-8-2002. The Ordinance was later replaced by the Representation of the People (Third Amendment) Act, 2002 (72 of 2002) which received the assent of the President on Dec. 28, 2002. Sections 33-A and 33-B as inserted by the said Amending Act read as under.
"33-A. Right to information.
(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of Section 33, also furnish the information as to whether-
(i) 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:
(ii) 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.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the Returning Officer the nomination paper under sub-section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section (1).
(3) The Returning Officer shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under sub- section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.
33-B. Candidate to furnish information only under the Act and the rules.- Notwithstanding anything contained in any judgment, 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 disclosea or furnished under this Act or the rules made thereunder."
Thus a candidate is not required to disclose (a) the cases in which he is acquitted or discharged of criminal offence(s): (b) his assets and liabilities: and (c) his educational qualification. In the present writ petitions, the validity of Section 33-B has been challenged. It was submitted by the petitioners that Section 33-B on the face of it is arbitrary, unjustifiable and void being violative of the fundamental right of the citizens/voters to know the antecedents of the candidates. Without exercise of that right it would not be possible to have free and fair elections and therefore, the impugned section violates the very basic features of the Constitution, namely, republic democracy. For having free and fair elections, anywhere in the territory of India, it is necessary to give effect to the voters' fundamental right as declared by the Supreme Court in the above judgment. It was contended that by issuing the Ordinance the Government has arrogated to itself the power to decide unilaterally for nullifying the decision rendered by the Supreme Court without considering whether it can pass legislation which abridges fundamental right guaranteed under Art. 19(1)(a). On the other hand, it was submitted on behalf of the respondents that the aforesaid Ordinance/ Amended Act is in consonance with the judgment rendered by the Supreme Court and the vacuum pointed out by the said judgment is filled, in by the enactment. It was also contended that voters' right to know the antecedents of the candidate is not part of the fundamental rights, but it is a derivative fundamental right on the basis of interpretation of Art.19(1)(a) given by the Supreme Court. It was submitted that the Ordinance/Amended Act is in public interest and, therefore, it can not be held to be illegal or void.
QUESTIONS OF LAW:-
(1) Whether the impugned legislation falls foul of Art. 19(1)(a) for limiting the area of disclosure;
(2) Whether Parliament acted beyond its competence in deviating from the directives given by this Court to the Election Commission in Democratic Reforms Association case.
(3) Whether Parliament outstepped its limits and enacted a law in violation of the guarantee enshrined in Art. 19(1)(a) of the Constitution.
(4) The allied question is whether Parliament has no option but to scrupulously adopted the directives given by Supreme Court to the Election Commission.
(5) Is it open to 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 ?
The above questions has far-reaching importance from the constitutional angle.
RATIO/REASONING
Per Justice Shah (Justice Dharmadhikari, concurring)
S.33-B of the Amended Act is held to be illegal, null and void. However. this judgment would not have any retrospective effect but would be prospective.
Per Justice P.V.Reddi (concurring)
S.33-B of the Representation of the People Act, 1951 does not pass the test of constitutionality.
It was submitted that by the impugned legislation, most of the directions issued by the Supreme Court in Assn. for Democratic Reforms case are complied with and vacuum pointed out is filled in by the legislation and that the legislature did not think it fit that the remaining information as directed by the Court is required to be given by a contesting candidate.
Per Justice Shah
S.33-B, which provides that notwithstanding anything contained in the judgment of any court or directions 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 the Act or the Rules made thereunder, is on the face of it beyond the legislative competence, as the Supreme Court has held that the voter has a fundamental right under Art. 19(1)(a) to know the antecedents of a candidate for various reasons recorded in the earlier judgments as well as in this judgment. The Amended Act does not wholly cover the directions issued by the Supreme Court. On the contrary, it provides that a candidate would not be bound to furnish certain information, information as directed by the Supreme Court. Once the Supreme Court held that a voter has a fundamental right to know the antecedents of his candidate, that. fundamental right under Article 19(1)(a) could be abridged by passing such legislation only as provided under Article 19(2). So legislative competence to interfere with a fundamental right enshrined in Article 19(1)(a) is limited as provided under Article 19(2). It has not been pointed out how the impugned legislation could be justified or saved under Article 19(2).
The legislature has no power to review the decision of the Supreme Court and set it at naught. The legislature has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the court. A declaration that an order made by a court of law is void is normally a part of the judicial function. The legislature cannot declare that decision rendered by the court is not binding, void or is of no effect. The legislature can with retrospective effect change the basis on which a decision is rendered by a court and change the law in general. However. this power can be exercised subject to constitutional provision, particularly. legislative competence and if it is violative of fundamental rights enshrined in Part III of the Constitution, such law would be void as provided under Article 13 of the Constitution.
It is not possible to accept the submission that as there is no specific fundamental right of the voter to know the antecedents of a candidate, the declaration by the Supreme Court of such fundamental right can be held to be derivative and therefore, it was open to the legislature to nullify it by appropriate legislation. There is no such concept of derivative fundamental rights. It is established that fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. The Constitution is required to be kept young, energetic and alive. Therefore, as the phrase "freedom of speech and expression" is given the meaning to include citizens' right to know the antecedents of the candidates contesting election of MP or MLA. such rights could not be set at naught by the legislature.
By declaration of a fact, which is a matter of public record, that a candidate was involved in various criminal cases, there is no question of infringement of any right of privacy. Similarly, with regard to the declaration of assets also, a person having assets or income is normally required to disclose the same under the Income Tax Act or such similar fiscal legislation. Not only this, once a person becomes a candidate to acquire public office, such declaration would not affect his right of privacy. This is the necessity of the day because of statutory provisions of controlling widespread corrupt practices as repeatedly pointed out by all concerned including various reports of the Law Commission and other committees. Per Reddi, J. (concurring and partly dissenting)
The directives given by the Supreme Court in Union of India v. Assn. for Democratic Reforms 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 the Supreme Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced. If the legislature in utter disregard of the Indicators by the Supreme 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 muster of Article 19(1)(a). Though certain amount of deviation from the aspects of disclosure spelt out by the Supreme 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 in examining the legislation providing for right to information and laying down the parameters of that right. The Court has to keep 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 standpoint 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. Section 33-B inserted by the Representation of the People (Third Amendment) Act, 2002 does not pass the test of constitutionality, firstly, for the reason that it imposes a 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. 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 the 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 stagnant: but the mandate of Section 33-B 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 33-B. 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 in spite 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. 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 33-B is taken to its logical effect. The second reason is that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate by blocking the ambit of disclosures only to what has been specifically provided for by the amendment, 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. 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).
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 or the judicial power vested in the courts. 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 33-B. That is where Section 33-B of the impugned amendment Act does not pass the muster of Article 19(1)(a), as interpreted by the Supreme Court.
The right to information provided for by Parliament under Section 33-A 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 the Court from the ambit of disclosure.
The provision made in Section 75-A 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 the spouse or dependent children, 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). 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 the 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 the 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 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. 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. 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 75-A regarding declaration of assets and liabilities of the elected candidates to the presiding officer has failed to effectuate the right 10 information and the freedom of expression of the voters/citizens.
The failure to provide for disclosure of educational qualification does not, however, in practical terms, infringe the freedom of expression. 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, the information relating to educational qualifications of contesting candidates does not serve any useful purpose in the present context and scenario. The information regarding educational qualifications is not a vital and useful piece of information to the voter, in the ultimate analysis. At any rate, two views are reasonably possible. Therefore, it is not possible to hold that Parliament should have necessarily made the provision for disclosure of information regarding educational qualifications of: the candidates.
The Election Commission has to issue revised instructions to ensure implementation of Section 33-A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission's orders relating to disclosure of assets and liabilities will still hold good and continue to be operative. However, Direction 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.
Per Dharmadhikari, J.
Making of law for election reforms undoubtedly a subject exclusively for the legislature. Based on the decision of the Supreme Court in the case of Assn. for Democratic Reforms and the directions made therein to the Election Commission, the Amendment Act under consideration has made an attempt to fill the void in law but the void has not been filled fully and does not satisfy the requirements for exercise of fundamental freedom of the citizen to participate in election as a well-informed voter. Democracy based on "free and fair elections" is considered as a basic feature of the Constitution. Lack of adequate legislative will to fill the vacuum in law for reforming the election process in accordance with the law declared by the Supreme Court in the case of Assn. for Democratic Reforms obligates the Supreme Court as an important organ in constitutional process to intervene. The Supreme Court is obliged by the Constitution to intervene because the legislative field, even after the passing of the Ordinance and the Amendment Act, leaves a vacuum. The Supreme Court in the case of Assn. for Democratic Reforms has determined the ambit of fundamental "right of information to a voter. The law, as it stands today after amendment, is deficient in ensuring "free and fair elections". The Supreme Court has, therefore, found it necessary to strike down Section 33-B of the Amendment Act so as to revive the law declared by the Supreme Court in the case of Assn. for Democratic Reforms.
I agree with all the conclusions drawn by Shah. J. Though I agree with the conclusions of Reddi, J., I am unable to agree with his conclusions that the directives given in Assn. for Democratic Reforms case were pro tempore in nature and also that the failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression.
Per Justice Shah
All citizens of this country have the fundamental right to "freedom of speech and expression" and this phrase is construed to include fundamental right to know relevant antecedents of the candidate contesting the elections. Democratic republic is part of the basic structure of the Constitution. For this, free and fair periodical elections based on adult franchise are a must. For having unpolluted healthy democracy, citizen voters should be well informed. The foundation of a healthy democracy is to have well-informed citizen-voters. The reason to have right of information with regard to the antecedents of the candidate is that the voter can judge and decide in whose favour he should cast his vote. It is the voter's discretion whether to vote in favour of an illiterate or literate candidate. It is his choice whether to elect a candidate against whom criminal cases for serious or non-serious charges were filed but is acquitted or discharged. He is to consider whether his candidate may or may not have sufficient assets so that he may not be tempted to indulge in unjustified means for accumulating wealth. For assets or liability, the voter may exercise his discretion in favour of a candidate whose liability is minimum and/or there are no overdues of public financial institution or government dues. From this information, it would be, to some extent, easy to verify whether unaccounted money is utilized for contesting election and whether a candidate is contesting election for getting rich or after being elected to what extent he became richer. Exposure to public scrutiny is one of the known means for getting clean and less polluted persons to govern the country. The little mana citizen, a voter is the master of his vote. He must have necessary information so that he can intelligently decide in favour of a candidate who satisfies his criterion of being elected as an MP or MLA. On occasions, it is stated that we are not having such intelligent voters. This is no excuse. This would be belittling the little citizen/voter. He himself may be illiterate but still he would have the guts to decide in whose favour he should cast his vote. In any case, for having free and fair election and not to convert democracy into a mobocracy and mockery or a farce, information to voters is a necessity.
Right to participate by casting vote at the time of election would be meaningless unless the voters are well informed about all sides of the issues, in respect of which they are called upon to express their views by casting their votes. Disinformation, misinformation, non-information, all equally create an uninformed citizenry which would finally make democracy a mobocracy and a farce. The primary duty of the judiciary is to uphold the Constitution and the laws without fear or favour, without being blased by political ideology or economic theory. Interpretation should be in consonance with the constitutional provisions, which envisage a republic democracy. Survival of democracy depends upon free and fair election. It is true that the elections are fought by political parties, yet election would be a farce if the voters are unaware of the antecedents of candidates contesting elections. Their decision to vote either in favour of A or B candidate would be without any basis. Such election would be neither free nor fair since for survival of true democracy the voter must be aware of the antecedents of his candidate. Voter has to cast intelligent and rational vote according to his own criteria. A well-informed voter is the foundation of democratic structure. That information to a voter, who is the citizen of this country, is one facet of the fundamental right under Article 19(1)(a).
Per Justice Reddi
Freedom of speech and expression, just as equality clause and the guarantee of life and liberty has been very broadly construed by the Supreme Court right from the 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 interchange 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 the Apex Court. One such right is the "right to information". 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). Securing information on the basic details concerning the candidates contesting for elections to Parliament or the State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a).
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 the 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 twofold: 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 this 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. 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.
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. Even a manifestation of an emotion. feeling etc. without words would amount to 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 the 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. "Opinion expressed, resolution or decision carried, by voting is one of the meanings given to the expression "vote". 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. 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.
For the first time in Assn. for Democratic Reforms case 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). 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. The right to information evolved by the Supreme 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 the State's intervention. The State or its instrumentality has to compel a subject to make the information available to the public, by means of legislation or orders having the force of law. It does not stand on the same footing as right to telecast and the right to view sports and games or other items of entertainment through television.
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 is not the same thing as the right to know about the antecedents of the candidate contesting for 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.
Per Justice Dharmadhikari
To control the ill-effects of money power and muscle power the Commissions recommend that election system should be overhauled and drastically changed lest democracy would become a teasing illusion to common citizens of this country. Not only a half-hearted attempt in the direction of reform of the election system is to be taken, as has been done by the present legislation by amending some provisions of the Act here and there, but a much improved election system is required to be evolved to make the election process both transparent and accountable so that influence of tainted money and physical force of criminals do not make democracy a farce- the citizen's fundamental "right to information" should be recognised and fully effectuated.
It was submitted that right to elect or to be elected is a pure and simple statutory right and in the absence of statutory provision neither has the citizen a right to elect nor has he a right to be elected because such right is neither a fundamental right nor a common law right. It is, therefore, submitted that it cannot be held that a voter has any fundamental right of knowing the antecedents/assets of a candidate contesting the election. It was also submitted that on the basis of the decision rendered by the Supreme Court. the Act is amended by the impugned Ordinance/Amendment Act. However, for the directions which are left out, the presumption would be it is a deliberate omission on the part of the legislature and, therefore, there is no question of it being violative of Article 19(1)(a).
Held:
Per Justice Shah
The right to vote or stand as a candidate for election and decision with regard to violation of election law is not a civil right but is a creature of statute or special law and would be subject to the limitations envisaged therein.
In an election petition challenging the validity of election, rights of the parties are governed by the statutory provisions for setting aside the election but this would not mean that a citizen who has right to be a voter and elect his representative in the Lok Sabha or Legislative Assembly has no fundamental right. Such a voter who is otherwise eligible to cast vote to elect his representative has statutory right under the Act to be a voter and has also a fundamental right as enshrined in Chapter III. Merely because a citizen is a voter or has a right to elect his representative as per the Act. his fundamental rights could not be abridged, controlled or restricted by statutory provisions except as permissible under the Constitution. If any statutory provision abridges the fundamental right, that statutory provision would be void. It also requires to be well understood that democracy based on adult franchise is part of the basic structure of the Constitution. The right of an adult to take part in election process either as a voter or a candidate could be restricted by a valid law which does not offend constitutional provisions. It cannot be held that as there is deliberate omission in law, the right of the voter to know the antecedents of the candidates, which is his fundamental right under Article 19(1)(a), is taken away.
The contention that as there is no specific fundamental right conferred on a voter by any statutory provision to know the antecedents of a candidate, the directions given by the Supreme Court are against the statutory provisions is, on the face of it, without any substance. In an election petition challenging the validity of an election of a particular candidate, the statutory provisions would govern respective rights of the parlies. However, voters' fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them. Right to vote would be meaningless unless the citizens are well informed about the antecedents of a candidate. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.
The freedom of speech and expression is basic to and indivisible from a democratic polity. It includes right to impart and receive information. Restriction to the said right could be only as provided in Article 19(2), Right of a voter to know the biodata of a Candidate is the foundation of democracy. The old dictum let the people have the truth and the freedom to discuss it and all will go well with the Government should prevail. The true test for deciding the validity of the Act is - whether it takes away or abridges fundamental rights of the citizens. If there is direct abridgment of the fundamental right of freedom of speech and expression, the law would be invalid. If the provisions of the law violate the constitutional provisions, they have to be struck down and that is what is required to be done in the present case. It is made clear that no provision is naufied on the ground that the Court does not approve the underlying policy of the enactment.
The contention Members of Parliament or the Legislature are representatives of the people and are supposed to know and be aware of what is good and bad for the people and that the Court cannot sit in judgment over their wisdom cannot be accepted.
Per Justice Reddi
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 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 the RP Act: That is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple.
A distinction has to be drawn between the conferment of the right to vote on fulfilment 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 arid 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.
The contention that if the right to Information is culled out from Arucle 19(1)(a) and read as an integral part of that fight, 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, 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. Whenever rare situations of the kind anticipated by the 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).
Per Justice Dharmadhikari
This freedom of a citizen to participate and choose a candidate at an clection is distinct from exercise of his right as a voter winch is to be regulated by statutory law on the election like the RP Act.
Per Justice Shah, Justice Dharmadhikari
The submission that the question involved in these petitions is a substantial question of law as to the interpretation of the Constitution and. therefore, the matter may be referred to a Bench consisting of five Judges is totally misconceived. No such contention was raised before the Supreme Court in Assn for Democratic-Reforms case in which it arrived at the conclusion that for survival of the democracy, right of the voter to know antecedents of a candidate would be part and parcel of his fundamental right. It would be the basis for free and fair election which is a basic structure of the Constitution. Therefore, the question relating to interpretation of Article 19(1)(a) is concluded and there is no other question which requires interpretation of the Constitution. The question raised before the present Bench has been finally decided and no other substantial question of law regarding the interpretation of the Constitution survives. Hence, the matter is not required to be referred to a five-Judge Bench. Per Reddi, J. (concurring)
It would have been in the fitness of things if the case (UO1 v. Assn. 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 the 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 Parliament and acted upon by the Election Commission. It has attained finality. No decision of the Supreme Court goes counter to the accepted proposition that the fundamental right of freedom of expression sets in when a voter actually casts his vote. At this stage, it would not be appropriate to set the clock back and refer the matter to the Constitution Bench to test the correctness of the view taken in that case.
Per Justice Shah
While no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Assn. for Democratic Reforms case the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. In the case of assets and liabilities, it would be very difficult for the Returning Officer to consider the truth or otherwise of the details furnished with reference to the "documentary proof". Very often, in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to contradict the objector's version. It is true that the aforesaid directions issued by the Election Commission are 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 Assn. for Democratic Reforms case and as provided under the Representation of the People Act and its Third Amendment.
CONCLUSION
Per Justice Shah
What remerges from the above discussion can be summarised thus:
(A) The legislature can remove the basis of a decision rendered by a competent court thereby rendering ^at decision ineffective but the legislature has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the court. A declaration that an order made by a court of law is void is normally a part of the Judicial function. The legislature cannot deplare that decision rendered by the Court is not binding or is of no effect. It is true that the legislature entitled, to change the law with retrospective effect which forms the basis of a judicial decision. This exercise of power is subject to constitutional provision, therefore, it cannot enact a law which is violative of fundamental right.
(B) Section 33-B which provides that at notwithstanding anything contained in the judgment of any court or directions issued by the Election Corr.mission, 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 the Act or the rules made thereunder, is on the face of it beyond the legislative competence, as this Court has held that the voter has a fundamental right under Article 19(1)(a) to know the antecedents of a candidate for various reasons recorded in the earlier judgment as well as in this judgment. The Amended Act does not wholly cover the directions issued by this Court. On the contrary, it provides that a candidate would not be bound to furnish certain information as directed by this Court.
(C) The judgment rendered by this Court in Assn. for Democratic Reforms ( has attained finality, therefore, there is no question of interpreting constitutional provision which calls for reference under Article 145(3).
(D) The contention that as there is no specific fundamental right conferred on a voter by any statutory provision to know the antecedents of a candidate, the directions given by this Court are against the statutory provisions is, on the face of it, without any substance. In an election petition challenging the validity of an election of a particular candidate, the statutory provisions would govern respective rights of the parties. However, voters fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country, and apart from statutory rights, he is having fundamental rights conferred by the Constitution. Members of a democratic society be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them. Right to vote would be meaningless unless the citizens are well informed exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.
(E) It is established that fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the Court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. During the last more than half a decade, it has been so done by this Court consistently. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by this Court.
In the result, Section 33-B of the Amended Act is held to be illegal. null and void. However, this judgment would not have any retrospective effect but would be prospective. Writ petitions stand disposed of accordingly.
By Justice Venkatarama Reddi
Finally, the summary of my conclusions:
(1) Securing information on the basic details concerning the candidates contesting for elections to Parliament or the 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 the 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 v. Assn. for Democratic Reforms 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 33-B inserted by the Representation of the People (Third Amendment) Act, 2002 does not pass the test of constitutionality. firstly, for the reason that it imposes a 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 Parliament under Section 33-A 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 excuding the pending cases in which cognizance has been taken by the (Court from the ambit of disclosure.
(7) The provision made in Section 75-A 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 the spouse or dependent children. 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 tor 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 33-A 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 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.
Per Justice Dharmadhikari
In my opinion, this Court is obliged by the Constitution to intervene because the legislative field, even after the passing of the ordinance and the Amendment Act, leaves a vacuum. This Court in the case of Assn. for Democratie Reforms has determined the ambit of fundamental "right of information to a voter. The law, as it stands today after amendments is deficient in ensuring "free and fair elections". This Court has, therefore. found it necessary to strike down S.33-B of the Amendment Act so as to revive the law declared by this Court in the case of Assn. for Democratic Reforms.
DECISION
S.33-B of the Amended Act is held to be illegal, null and void.
RESULT
This ruling will not apply retroactively but will only have prospective implications. Accordingly, the writ petitions are resolved.