Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO.161 OF 2004
People’s Union for Civil Liberties
and another ...Petitioners
Versus
Union of India and another …Respondents
J U D G M E N T
G.S. Singhvi, J.
1. Democracy is a part of the basic structure of our Constitution and rule of
law and free and fare election are basic features of democracy. Democracy
postulates that there should be periodical elections so that people may be in a
position either to re-elect the same representatives or choose new representatives.
Democracy also contemplates that elections should be free and fair and the voters
should be in a position to vote for the candidates of their choice. The pre-requisite
of this is that the elections are not rigged and manipulated and the candidates or
their agents are not able to resort to unfair means and malpractices. These are, in
substance, the observations made by H.R. Khanna, J. in his concurring judgment in
Smt. Indira Nehru Gandhi v. Shri Raj Narain and another [1975 Supp. SCC 1].
2. Sir Winston Churchill described the importance of vote in a democratic
election in the following words:
“At the bottom of all tributes paid to democracy is the little man,
walking into a little booth, with a little pencil, making a little cross
on a little bit of paper – no amount of rhetoric or voluminous
discussion can possibly diminish the overwhelming importance of
the point”.
3. In Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC
405], the Constitution Bench after quoting the words of Sir Winston Churchill,
proceeded to add ‘if we may add, the little, large Indian should not be hijacked
from the course of free and fair elections by mob muscle methods, or subtle
perversion of discretion by men “dressed in little, brief authority”. For “be you ever
so high, the law is above you”.
4. In Lily Thomas v. Speaker, Lok Sabha and others [(1993) 4 SCC 234],
the Court elucidated meaning of the term voting in the following words:
“Voting is the formal action of will or opinion by the person
entitled to exercise his right on the subject and issue in question.
Right to vote means right to exercise the right in favour or against
the motion. Such a right implies the right to remain neutral as
well.”
5. The scope of the citizen’s right to express his/her opinion through the
medium of the franchise was further developed in Union of India v. Association for
Democratic Reforms and another [(2002) 5 SCC 294 (LB)]. That case emanated
from the directions given by Delhi High Court to the Union of India and Election
Commission of India (for short ‘the Commission’) to implement the
th
recommendations made by the Law Commission in its 170 Report and make
necessary changes in Rule 4 of the Conduct of Election Rules, 1961 [for short, `the
Rules’]. Simultaneously, the Court considered the prayer made in the writ petition
filed by petitioner no.1 herein under Article 32 of the Constitution for issue of a
direction to the candidates to declare their assets and the facts relating to criminal
case, if any, registered or pending against them before the election. After noticing
the background in which directions were given by the High Court, this Court
framed the following questions:
“1. Whether the Election Commission is empowered to issue
directions as ordered by the High Court?
2. Whether a voter — a citizen of this country — has right to get
relevant information, such as assets, qualification and
involvement in offence for being educated and informed for
judging the suitability of a candidate contesting election as MP
or MLA?”
6. The Court then discussed various facets of the term ‘election’ and width
and amplitude of the Commission’s power under Article 324, referred to various
judgments including those of Mohinder Singh Gill v. Chief Election Commissioner
(supra), State of U.P. v. Raj Narain [(1975) 4 SCC 428], Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641], Kanhiya Lal
Omar v. R.K. Trivedi [(1985) 4 SCC 628], Common Cause (A Registered Society) v.
Union of India [(1996) 2 SCC 752] and laid down seven propositions of which
proposition Nos.1, 2, 4, 5 and 7 are extracted below:
“1. The jurisdiction of the Election Commission is wide
enough to include all powers necessary for smooth conduct of
elections and the word “elections” is used in a wide sense to include
the entire process of election which consists of several stages and
embraces many steps.
2. The limitation on plenary character of power is when
Parliament or State Legislature has made a valid law relating to or
in connection with elections, the Commission is required to act in
conformity with the said provisions. In case where law is silent,
Article 324 is a reservoir of power to act for the avowed purpose of
having free and fair election. The Constitution has taken care of
leaving scope for exercise of residuary power by the Commission in
its own right as a creature of the Constitution in the infinite variety
of situations that may emerge from time to time in a large
democracy, as every contingency could not be foreseen or
anticipated by the enacted laws or the rules. By issuing necessary
directions, the Commission can fill the vacuum till there is
legislation on the subject. In Kanhiya Lal Omar case the Court
construed the expression “superintendence, direction and control”
in Article 324(1) and held that a direction may mean an order
issued to a particular individual or a precept which many may have
to follow and it may be a specific or a general order and such
phrase should be construed liberally empowering the Election
Commission to issue such orders.
4. To maintain the purity of elections and in particular to
bring transparency in the process of election, the Commission can
ask the candidates about the expenditure incurred by the political
parties and this transparency in the process of election would
include transparency of a candidate who seeks election or re-
election. In a democracy, the electoral process has a strategic role.
The little man of this country would have basic elementary right to
know full particulars of a candidate who is to represent him in
Parliament where laws to bind his liberty and property may be
enacted.
5. The right to get information in democracy is recognised
all throughout and it is a natural right flowing from the concept of
democracy. At this stage, we would refer to Article 19(1) and (2) of
the International Covenant on Civil and Political Rights, which is
as under:
(1) Everyone shall have the right to hold opinions without
interference.
(2) Everyone shall have the right to freedom of expression;
this right shall include freedom to seek, receive and impart
information and ideas of all kinds , regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any
other media of his choice.
7. Under our Constitution, Article 19(1)( a ) provides for
freedom of speech and expression. 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. For this purpose,
information about the candidate to be selected is a must. Voter’s
(little man — citizen’s) right to know antecedents including
criminal past of his candidate contesting election for MP or MLA is
much more fundamental and basic for survival of democracy. The
little man may think over before making his choice of electing law-
breakers as law-makers.”
7. During the pendency of the appeal preferred by the Union of India
against the directions given by Delhi High Court in the writ petition filed by
Association for Democratic Reforms and another, the Representation of the People
Act, 1951 (for short ‘the Act’) was amended by Amending Act No. 3 of 2002 and
Section 33A and Section 33B were inserted in it. People’s Union for Civil Liberties
challenged the vires of Section 33B by which it was declared that notwithstanding
anything contained in any judgment, decree or order of any court or any direction
or any other instruction issued by the Election Commission, no candidate shall be
liable to disclose or furnish any such information, in respect of his election, which is
not required to be disclosed or furnished under the Act or the rules made
thereunder. A three-Judge Bench comprising of M.B. Shah, P. Venkatarama Reddy
and D.M. Dharmadhikari, JJ. expressed separate but concurring opinions and
declared Section 33B to be unconstitutional – People’s Union for Civil Liberties v.
Union of India [(2003) 4 SCC 399]. M.B. Shah, J. who was a party to the earlier
judgment in Union of India v. Association for Democratic Reforms and another
(supra), referred to the judgments in N.P. Ponnuswami v. Returning Officer [1952
SCR 218], G. Narayanaswami v. G. Pannerselvan [(1972) 3 SCC 717], C.
Narayanaswamy v. C.K. Jaffer Sharief [(1994) Supp 3 SCC 170] and observed:
“It has to be stated that 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 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.”
Shah, J. then held that Section 33B was enacted for doing away with the effect of
judgment in Union of India v. Association for Democratic Reforms (supra) and this
could not have been done by the legislature. Conclusions (D) and (E) recorded by
Shah, J. which have bearing on this case are extracted below:
“(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 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.
(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.”
P. Venkatarama Reddi, J. agreed with M.B. Shah, J. that Section 33B does not pass
the test of constitutionality and proceeded to observe:
“In a democratic republic, it is the will of the people that is paramount
and becomes the basis of the authority of the Government. The will is
expressed in periodic elections based on universal adult suffrage held
by means of secret ballot. … 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
voter/citizen should have at least the basic information about the
contesting candidate, such as his involvement in serious criminal
offences. … 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.… I would say that such
information will certainly be conducive to fairness in election process
and integrity in public life. The disclosure of information would
facilitate and augment the freedom of expression both from the point of
view of the voter as well as the media through which the information is
publicised and openly debated.”
Reddi, J. referred to the judgment in Union of India v. Association for Democratic
Reforms and another (supra), dictionary meanings of the word ‘expression’ and
reiterated 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”. His lordship then noted that in Jyoti Basu v.
Debi Ghosal [(1982) 1 SCC 691], the Court had treated the right to elect as neither
a fundamental right nor a common right but pure and simple statutory right and
expressed his view in the following words:
“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, the RP 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 the 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 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 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.”
Reddi, J. then proceeded to record 9 Conclusions of which Conclusion Nos.1 and 2
read as under:
“(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.”
D.M. Dharmadhikari, J. agreed with most of the conclusions recorded by M.B.
Shah and P.V. Reddi, JJ. and observed:
“Democracy based on “free and fair elections” is considered as a basic
feature of the Constitution in the case of Kesavananda Bharati. Lack of
adequate legislative will to fill the vacuum in law for reforming the
election process in accordance with the law declared by this Court in
the case of Assn. for Democratic Reforms obligates this Court as an
important organ in constitutional process to intervene.
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 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”. This Court has, therefore, found it necessary to strike down
Section 33-B of the Amendment Act so as to revive the law declared by
this Court in the case of Assn. for Democratic Reforms.
With these words, I agree with Conclusions (A) to (E) in the opinion of
Brother Shah, J. and Conclusions (1), (2), (4), (5), (6), (7) and (9) in
the opinion of Brother P.V. Reddi, J.”
8. By the above noted two judgments, a new dimension was given to the
right of sovereign i.e. the people to make choice of their representatives after
knowing the assets and antecedents of the persons seeking election to the
legislatures. These judgments also gave an expansive meaning to the term
‘expression’ used in Article 19(1)(a) by declaring that in the democratic set up of
our country the elector’s right to have complete information about the candidates
and then express his choice for a particular person, are necessary concomitant of the
freedom of expression guaranteed under Article 19(1)(a).
9. Now by means of this petition, People’s Union for Civil Liberties
(petitioner no.1), which has been fighting for protection of human rights and civil
liberties of the people for last three decades and Era Sezhiyan (petitioner no.2), who
is one of the founder members of Dravida Munnetra Kazhagam (DMK) and a well
known parliamentarian seek to add another dimension to the sovereign’s right to
express his choice for the candidate at an election by contending that right to vote in
secrecy includes the right of negative voting. They have prayed for striking down
Rules 41(2) and 49-O of the Rules and also for issue of a direction to the
Commission to make appropriate provision in the ballot papers and Electronic
Voting Machines (EVMs) so as to enable the voters to exercise their right of
negative voting and also ensure that exercise of this right is kept secret. To support
their plea that secrecy of ballot a sine qua non for exercise of the right of freedom of
expression guaranteed to the electors under Article 19(1)(a) of the Constitution, the
petitioners have relied upon Article 21(3) of Universal Declaration of Human Rights
which were adopted by the General Assembly of the United Nations in December,
1948, Article 25(b) of the International Covenants on Civil and Political Right and
the judgments of this Court in Mohinder Singh Gill v. Chief Election Commissioner
(supra) and Union of India v. Association for Democratic Reforms and another
(supra). They also referred to letter dated 10.12.2001 in which the Commission has
advocated in favour of the electors’ right of negative voting. The petitioners have
pleaded that Rules 41 and 49-O of the Rules are violative of Articles 19(1)(a) and 21
of the Constitution and Section 128 of the Act inasmuch as the provisions contained
therein violate secrecy of the vote and voter. It is also the petitioners’ case that in
exercise of its power under Article 324 of the Constitution, the Commission can
direct modification of the existing EVMs to enable the voters to exercise their right
of negative voting.
10. In the counter-affidavit filed on behalf of the Union of India, the very
maintainability of the writ petition has been questioned on the ground that the
petitioners have not claimed violation of any of their fundamental rights enshrined
in Part III of the Constitution. The stand of Union of India is that the right of the
elector to vote is a statutory right and not a fundamental right and, therefore, the
writ petition filed under Article 32 cannot be entertained. The further case of the
Union of India is that the right of an elector to vote does not include the right of
negative voting and, therefore, Rules 41(2) and 49-O cannot be dubbed as
unconstitutional or ultra vires the provisions of Section 128 of the Act.
11. On behalf of the Commission, its Secretary, Shri K.F. Wilfred has filed
an affidavit supporting the cause of the petitioners. In paragraphs 3(i) and (ii) of
his affidavit, Shri Wilfred has averred that the elector may like to refrain from
casting vote for several reasons including the one that he does not consider any of
the candidates as deserving of his vote and that this can be expressed either by
staying away from the polling or by going to the polling station and informing the
Presiding Officer of his intention not to vote or by positively discarding all the
candidates. According to Shri Wilfred, the Election Commission had considered
the issue of providing a separate panel in the Balloting Unit of the EVMs, so that
the elector can reject all the candidates without disclosing his identity and to this
effect letters dated 10.12.2001 and 5.7.2004 were sent to the Government of India,
Ministry of Law, Justice and Company Affairs but necessary amendment has not
been carried out in the Act and Rules.
12. Shri Rajinder Sachar, learned senior counsel appearing for the
petitioners argued that the right of an elector to vote at an election in secrecy
includes the right of negative voting qua all candidates and the Commission is duty
bound to provide appropriate mechanism in the EVMs for effective exercise of that
right. Learned senior counsel referred to the judgments in Union of India v.
Association for Democratic Reforms (supra) and People’s Union for Civil Liberties
(PUCL) v. Union of India (supra) and argued that when the Court has already
recognized the right of an elector to know the antecedents of the candidates and
freely exercise his franchise as an integral part of the fundamental right guaranteed
under Article 19(1)(a) of the Constitution, Rules 41(2) and 49-O of the Rules are
liable to be declared unconstitutional because they violate the elector’s right to vote
in secrecy. Shri Sachar submitted that the Court should direct the Commission to
take effective and adequate measures to protect the right of an elector not only to
refuse to cast vote after going to the polling booth but also the right to indicate
positive negation for all candidates and that too in secrecy because adult suffrage
has been treated as an essential component of democracy. Learned senior counsel
pointed out that even though some of the provisions contained in the Act and Rules
recognise the importance of secrecy of ballot, Rules 41(2) and 49-O destroy the
freedom of an elector when he refuses to vote in favour of any candidate, inasmuch
as the agents of the candidates are able to easily identify the person who refuses to
cast vote. As regards, the objection raised by respondent no.1 to the locus of the
petitioners to file petition under Article 32 of the Constitution, Shri Sachar
submitted that in view of two judgments of three-Judge Benches whereby the right
of an elector to make choice of the candidate has been treated as fundamental right
guaranteed under Article 19(1)(a) of the Constitution, the petitioners are entitled to
seek intervention of the Court for striking down the impugned rules and for issue of
a mandamus to the Commission to take steps under Article 324 for effective exercise
of the right of negative voting vested in the electors.
13. Ms. Meenakshi Arora, learned counsel for the Commission submitted
that in view of the judgments of this Court in Union of India v. Association for
Democratic Reforms (supra) and People’s Union for Civil Liberties (PUCL) and
another v. Union of India and another (supra), the petitioners have the right to
challenge the constitutionality of the impugned rules and seek direction for
appropriate modification in the EVMs to enable the electors to exercise their
fundamental rights of negative voting. Ms. Arora argued that if the electors right to
know the assets and antecedents of the candidates and then make their choice is a
fundamental right guaranteed under Article 19(1)(a), there is no rationale to exclude
the right of negative voting from the purview of that Article. Learned counsel
highlighted the distinction between the right to elect and physical exercise of the
right to vote by pointing out that while the former falls in the domain of statutory
right, the latter is a necessary concomitant of the freedom of expression guaranteed
under Article 19(1)(a). Ms. Arora then submitted that if the rules are amended or
the Court so directs, the Commission can take steps to modify existing EVMs to
enable the electors to exercise their right of negative voting in secrecy.
14. Shri Amarendra Sharan, learned Additional Solicitor General relied
upon the judgments of the Constitution Benches in Ponnuswami’s case and Kuldip
Nayar v. Union of India [(2006) 7 SCC 1] and argued that the writ petition should
be dismissed as not maintainable because the right to vote at an election has not
been treated as a fundamental right guaranteed under Part III of the Constitution.
He submitted that the right to elect and to vote can, at best be regarded as statutory
right available to an elector under the Act but the same cannot be treated as flowing
from the right to freedom of expression guaranteed under Article 19(1)(a) of the
Constitution. Shri Sharan pointed out that the framers of the Constitution have
recognized the importance of secrecy of ballot by making specific provision to that
effect in the election of President and Vice-President under Articles 55 and 66
respectively, but no such provision has been made in Article 326 which postulates
election to the House of People and the Legislative Assemblies on the basis of adult
suffrage and argued that the right of negative voting in secrecy cannot be read into
Article 326 of the Constitution by implication. Learned counsel submitted that
secrecy of ballot is effectively protected by Rule 49-O of the Rules and violation
thereof is punishable under Section 128(2) of the Act and the impugned provisions
cannot be nullified by assuming that the same are violative of Article 19(1)(a) of the
Constitution. Learned Additional Solicitor General lastly submitted that Article
324 cannot be used by the Commission for giving new dimension to the secrecy of
ballot which is not envisaged by the Constitution and the Act.
15. We have given our most anxious consideration to the entire matter. In
view of the objection raised by the learned Additional Solicitor General, we shall
first deal with the issue of maintainability of the writ petition. In last five decades,
the Courts of this country have repeatedly held that democracy is one of the basic
features of the Constitution and free and fair election based on universal adult
suffrage is an essential component of democracy. Till 1996, this Court treated the
right to elect as a statutory right only because it did not have the occasion to
consider the issue in the backdrop of concerted attempts made by the interested
quarters to corrupt and hijack the process of election and participation in election of
persons with devious antecedents. In Jyoti Basu v. Debi Ghosal (supra), this Court
while allowing the appeal filed by appellant Jyoti Basu, who was elected to the
House of People from 19-Barrackpore Parliamentary constituency against the order
of the High Court refusing to strike down the names of some of the ministers of the
West Bengal Government, who were impleaded as parties to the election petition,
referred to the judgments in N.P. Ponnuswami v. Returning Officer (supra) and
Jagan Nath v. Jaswant Singh [1954 SCR 892] and held:
“The right to elect, to be elected and to dispute an election are neither
fundamental rights nor common law rights but are simply statutory
rights and therefore are subject to statutory limitations. Similarly, an
election petition is not an action at common law, nor in equity but is a
statutory proceeding to which only statutory rules apply. The statute
concerned with the election matters is the Representation of the People
Act which is a complete and self-contained code and within it must be
found any rights claimed in relation to an election or an election
dispute.”
In Rama Kant Pandey v. Union of India [(1993) 2 SCC 438] a three-Judge Bench
examined challenge to the Representation of the People (Amendment) Ordinance,
1992 (Ordinance No.1/1992) and the Representation of the People (Second
Amendment) Ordinance, 1992 (Ordinance No.2/1992) by which provision for
countermanding elections in certain circumstances was amended and period of
twenty days specified in Section 30 was reduced to fourteen days. It was argued on
behalf of the petitioner that the voters’ right to choose their representative for a
particular constituency cannot be whittled down by the amendments. While
rejecting the argument, the Court recorded the following preface:
“Before proceeding to examine the merits of the argument addressed
on behalf of the petitioner it will be useful to note that the right to vote
or to stand as a candidate for election is neither a fundamental nor a
civil right. In England also it has never been recognised as a common
law right.”
16. Faced with serious criticism of attempts made by vested interest to
corrupt the process of election by clandestinely providing funds in the form of black
money to the political parties, Parliament amended the Companies Act, Income-Tax
Act and the Representation of the People Act. The object of these amendments was
to bring transparency in election-funding. Common Cause, a society registered
under the Societies Registration Act filed petition under Article 32 of the
Constitution for issue of a direction to the political parties to annually file return of
income. A two-Judge Bench examined the issue at some length and declared that
political parties are under a statutory obligation to file return in accordance with the
provisions of the Income Tax Act. The Court also directed the Ministry of Finance
to make investigation/enquiry against each of the defaulting political parties and
initiate necessary action including penal action under Section 276-CC of the Income
Tax Act. While dealing with the powers of the Commission under Article 324, the
Court held as under:
“Superintendence and control over the conduct of election by the
Election Commission envisaged under Article 324 include the scrutiny
of all expenses incurred by a political party, a candidate or any other
association or body of persons or by any individual in the course of the
election. The expression “Conduct of election” in Article 324 of the
Constitution of India is wide enough to include in its sweep, the power
of the Election Commission to issue – in the process of the conduct of
elections – directions to the effect that the political parties shall submit
to the Commission for its scrutiny, the details of the expenditure
incurred or authorised by the political parties in connection with the
election of their respective candidates.”
17. After six years came the judgment in Union of India v. Association for
Democratic Reforms (supra) which can be termed as an important judicial
benchmark in the field of electoral reforms. In that judgment, the Court declared
that where law is silent, Article 324 is a reservoir of power for the Commission and
the same can be used for free and fair election; that the Commission can fill in the
vacuum till there is a legislation on the subject to meet the particular situation or
contingency; to maintain purity of election and to bring transparency in the process
of election, the Commission can ask the candidate about the expenditure incurred by
the political parties. The Court further held that the elector has right to know full
particulars of a candidate who is to represent him in legislature and that under
Article 19(1)(a) voter’s right of speech and expression in case of election would
include casting of votes. Proposition No.7 extracted hereinabove contains this
enunciation of law.
18. The ratio of the judgment in Union of India v. Association for
Democratic Reforms (supra) was reiterated by another three-Judge Bench in
People’s Union for Civil Liberties v. Union of India (supra). Two of the Judges
constituting the Bench, namely, M.B. Shah and P. Venkatarama Reddi, JJ. recorded
separate detailed opinions. Shah, J. held that an elector who is otherwise eligible to
cast vote and 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. Reddi, J. drew
fine distinction between conferment of the right to vote on fulfillment of requisite
criteria and the culmination of that right in the final act of exercising choice towards
a particular candidate by means of ballot and held that though the initial right
cannot be placed on the pedestal of a fundamental right, but casting of a vote in
favour of one or the other candidate tantamounts to expression of his opinion and
preference and exercise of that right marks accomplishment of freedom of
expression of voter where Article 19(1)(a) is attracted. In the opinion of Reddi, J.,
freedom of voting as distinct from the right to vote is 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
rd
freedom. The 3 Member of the Bench, namely, D.M. Dharmadhikari, J. expressed
his agreement with the other two Judges.
19. In Kuldip Nayar v. Union of India (supra) on which reliance has been
placed by the learned Additional Solicitor General, the Constitution Bench
examined the petitioner’s challenge to the Representation of People (Amendment)
Act 40 of 2003 by which the requirement of domicile in the concerned State for
getting elected to the Council of States was deleted. The Court also examined
validity of the amendments in Sections 59, 94 and 128 of the Act by which open
ballot system was introduced for election to the Council of States. According to the
petitioner, this system violated the principle of secrecy, which is the essence of free
and fair elections. While dealing with the question whether deletion of the
requirement of domicile was ultra vires the Constitution, the Court adverted to the
concept of federalism, role of Upper House – Council of States vis-à-vis House of
People and held that the Amending Act No.40 of 2003 does not violate the
provisions of the Constitution. The Court then considered the issue relating to
violation of secrecy of ballot, referred to the amendments made in Sections 59, 94
and 128 of the Act and held that the requirement of maintenance of secrecy of voting
is now made subject to exception qua election to the Council of States. The
Constitution Bench then reiterated that democracy is a basic feature of the
Constitution and the edifice of democracy rests on a system of free and fair election,
referred to Keshvananda Bharti v. State of Kerala [1973 (4) SCC 225], Smt. Indira
Nehru Gandhi v. Shri Raj Narain and another (supra), Mohinder Singh Gill v. Chief
Election Commissioner (supra), S. Raghubir Singh Gill v. S Gurcharan Singh Tohra
[1980 Supp SCC 53], Kihoto Hollohan v. Zachillhu [1992 Supp. (2) SCC 651],
Union of India vs. Association for Democratic Reforms (supra), People’s Union for
Civil Liberties v. Union of India (supra) and then proceeded to consider whether
right to vote is a constitutional right or a fundamental right. On this aspect of the
matter, the Constitution Bench referred to paragraphs 42, 46.4, 46.5, 46.7 of the
judgment in Union of India vs. Association for Democratic Reforms (supra) and
noted the views expressed in Jyoti Basu v. Debi Ghosal (supra), People’s Union for
Civil Liberties v. Union of India (supra) and Rama Kant Pandey v. Union of India
(supra). In para 356, the Court extracted para 62 of the judgment of Shah, J. in
People’s Union for Civil Liberties v. Union of India (supra). In paragraphs 356 to
359, the Court extracted the observations of P.Venkatarama Reddi, J. In para 360,
the Court referred to the observations made by D.M. Dharamadhikari, J. and
declined to accept the argument of the petitioners that as per majority view in
People’s Union for Civil Liberties v. Union of India (supra), right to vote is a
constitutional right besides it being a facet of fundamental right under Article 19(1)
(a) of the Constitution. For the sake of convenience, paragraphs 361 to 364 of the
judgment in Kuldip Nayar v. Union of India (supra) are extracted below:-
“361. The argument of the petitioners is that the majority view in
People’s Union for Civil Liberties , therefore, was that a right to vote is
a constitutional right besides that it is also a facet of fundamental right
under Article 19(1)( a ) of the Constitution.
362. We do not agree with the above submission. It is clear that a
fine distinction was drawn between the right to vote and the freedom of
voting as a species of freedom of expression, while reiterating the view
in Jyoti Basu v. Debi Ghosal that a right to elect, fundamental though
it is to democracy, is neither a fundamental right nor a common law
right, but pure and simple, a statutory right.
363. Even otherwise, there is no basis to contend that the right to
vote and elect representatives of the State in the Council of States is a
constitutional right. Article 80(4) merely deals with the manner of
election of the representatives in the Council of States as an aspect of
the composition of the Council of States. There is nothing in the
constitutional provisions declaring the right to vote in such election as
an absolute right under the Constitution.
364. Be that as it may, the moot contention that has been raised
by the petitioners is that the election of Members of the Council of
States is provided for in the Constitution and, therefore, is a part of
the Constitution and that it is an inherent requirement of the principle
of free and fair election that the right to vote be invariably
accompanied by the right of secrecy of vote so as to ensure that the
freedom of expression through vote is real.”
20. We have carefully read paragraphs 349 to 364 of the aforesaid judgment,
which are found under the head Right to Vote – A Constitutional / Fundamental
Right and find that even though the Constitution Bench did not overrule or discard
the ratio of the two three-Judges Bench judgments in Union of India v. Association
for Democratic Reforms (supra) and People’s Union for Civil Liberties v. Union of
India (supra), the opening line of para 362 tend to create a doubt whether the right
of voter to exercise his choice for the candidate is a necessary concomitant of the
voter’s freedom of expression guaranteed under Article 19(1)(a) of the Constitution.
Therefore, this issue needs a clear exposition of law by a larger Bench. We are
further of the view that width and amplitude of the power of the Commission under
Article 324 needs further consideration by a larger Bench in the light of the
judgments of this Court whereby the elector’s right to be informed about the assets
and antecedents of the persons seeking election to the legislature has been duly
recognized.
21. The file of the case may, therefore, be placed before Hon’ble the Chief
Justice for appropriate order.
......................J.
[B.N. AGRAWAL]
......................J.
[G.S. SINGHVI]
New Delhi,
February 23, 2009.