Full Judgment Text
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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
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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:--
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"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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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).
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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
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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 monopoly 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
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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.
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Accordingly, the writ petitions stand disposed of without
costs.