Supreme Court of India
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) AND ANR.versusUNION OF INDIA AND ANR.
- Citation
- 2003 INSC 176
- Decided
- 13 March 2003
- Disposal
- Disposed off
- Bench
- M B SHAH
Holding
Section 33B (Section 338) of the Representation of the People Act, 1951 is unconstitutional, void and cannot be applied, as it infringes the fundamental right of voters to know candidates’ antecedents under Article 19(1)(a).
Summary
The Supreme Court examined the constitutionality of Section 33B (also called Section 338) of the Representation of the People Act, 1951, inserted by the 3rd Amendment Act, 2002, which barred candidates from disclosing any information not expressly required by the Act despite Supreme Court directions. The Court held that a voter’s right to know the criminal, financial and other antecedents of a candidate is a fundamental right under Article 19(1)(a) and cannot be curtailed except under the reasonable‑restriction test of Article 19(2). The provision was found to be beyond legislative competence, to violate the fundamental right, and to attempt to override a judicial decision, and was therefore declared illegal, null and void with prospective effect. The writ petitions challenging the provision were dismissed.
Issues considered
- The constitutional validity of Section 33B/338 of the Representation of the People Act, 1951 as amended in 2002.
- Whether the voter’s right to know the antecedents of candidates is a fundamental right under Article 19(1)(a).
- Whether the provision can be saved under the reasonable‑restriction clause of Article 19(2).
- Whether the legislature may direct state instruments to disregard a Supreme Court judgment.
- Whether the provision infringes the right to privacy under Article 21.
Legislation cited
- Constitution of Indias. Article 145(3), s. Article 19(1)(a), s. Article 19(2), s. Article 21, s. Article 245, s. Article 32, s. Article 326
- Representation of the People Act, 1951s. 338, s. 33A, s. 33B
Subjects
Right to informationVoter’s right to knowArticle 19(1)(a)Representation of the People ActSection 33BElectoral reformFundamental rightsPrivacyFree and fair electionsLegislative competence
Judgment
A PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) AND ANR.
v.
UNION OF INDIA AND ANR.
MARCH 13, 2003
B [M.B. SHAH, P. VENKATARAMA REDD! AND D.M.
DHARMADHIKARI, JJ.]
Election Laws:
C Representation of the People Act, 1951:
Section 33B-Prohibition regarding disclosure or furnishing of
information in respect of candidate's election, which is not required to be
disclosed or furnished under the Act or the rules made, despite directions
D issued by Supreme Court-Constitutional validity of-Held: right of voter to
know antecedents of contesting candidate is a fundamental right under Article
19(J)(a)-Such right could be abridged by passing legislation under Article
19(2)-lmpugned provision not justified or saved under Article 19(2)-Hence
illegal, null and void-Constitution ofIndia, 1950-Articles 245 and 19(J)(a).
E Issuance of directions to Election Commissiun with regard to furnishing
of info!"mation by contesting candidates in Association for democratic
reform's case by Supreme Court-Election Commission directing wrongful
information would lead to rejection of nomination paper-Justification of-
Held: Such direction not justified- Commission directed to revise instructions.
F Constitution of India, 1950:
Article 245-Legislature-Powers-Scope of-Held: Legislature can
remove the defect which is the cause for invalidating law by the Court by
appropriate legislation subject to legislative competence-However, it cannot
ask instrumentalities of State to disobey decisions given by Court.
G
Article 19(/)(a):
Freedom of speech and expression-Right to know antecedents of
candidates-Held: ls facet of Article /9(J)(a)-Such information to voter is
necessary for free and fair election in turn for survival of democracy-Further
H 1136
~\
PEOPLE'S UNION FOR CIVIL LIBERTIFS (PUCL) v. U.0.1. 113 7
such right is independent ofstatutory right under election law-Merely because A
right to vote and contest for election is a statutory right, such fundamental
right cannot be abridged by statutory provisions.
Right of voter to know antecedents of candidates-Nature of-Held: Is
not a derivative fundamental right, as there is no such concept but a
fundamental right-Hence legislature cannot nullifY it. B
Article 21--Right of privacy-Infringement of-Declaration about
criminal antecedents of candidates an{i his assets and liabilities-Held: Such
declaration does not infringe his right to privacy.
Articles 145(3) and 19(/)(a)-Matter involving substantial question of C
law as to interpretation of constitutional provisions- Reference to five Judge
Bench-When called for-Discussed-Held: On facts, in earlier decision
Supreme Court holding right of voter to know. antecedents of candidate as his
fundamental right under Article 19(/)(a)-Decision attaining finality-Thus,
no question requiring interpretation of constitutional provisions-Hence no D
need to refer the matter to five Judge Bench in subsequent case-Also in
earlier case no plea raised that question be referred to f!Ve Judge Bench.
Article 32-Challenge of vires of the Act-Notice to Attorney Genera/-
Compliance of-Held: When Union of India is party-respondent and Solicitor
General is appearing before the Court, notice to Attorney General is not E
required-Practice and procedure.
In Union of India v. Association for Democratic Reforms* case this
Court held that a citizen/voter has the right to know about the antecedents
of the contesting candiclate and this right is a part of the fundamental right
under Article 19(l)(a). With regard to the enforcement of the right the F
Court noticed that there was void in the field, as it was not covered by
any legislative provision. Thereafter it directed the Election Commission
to fill the vacuum by requiring the candidate to furnish information
regarding past convictions/acquittals/discharges; and whether prior to six
months of filing of nomination, the candidate has been accused of any G
criminal offence punishable with two years imprisonment or more, and
charge framed or cognizance taken; his assets and liabilities and also assets
of his spouse and dependents; and the educational qualifications. Election
Commission issued directions for the implementation of the decision.
Subsequently, Sections 33A and 338 were inserted in the Representation
of the People Act 1951 by the 3rd Amendment Act, 2002. Under section H
1138 SUPREME COURT REPORTS (2003] 2 S.C.R.
A 33A candidate was required to disclose any case in which he has been
accused of any criminal offence punishable with imprisonment of two years
or more, and charge framed; conviction for any offence (except Section 8
offence) and sentenced to imprisonment ofone year or more. However
there was no declaration with regard to candidate's acquittal or discharge
B in criminal offences, his assets and liabilities and his educational
qualification. Section 338 provided that 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 despite the directions issued by this Court. Hence, the present
writ petitions challenging the validity of section 338 of the Representation
C of the People Act, 1951 as inserted by Representation of the People (3rd
Amendment) Act, 2002.
Petitioners contended that Section 338 is, on the face of it, arbitrary
and unjustifiable and also void as a law cannot be passed which violates
or abridges the fundamental rights of the citizens/voters to know the
D relevant antecedents· of the candidate; that without the exercise of this
right, it will not be possible to have free and fair elections; and that by
issuing the Ordinance, the Government has arrogated to itself the power
to decide unilaterally for nullifying the decision rendered by this Cou-rt
without considering whether it can pass legislation which abridges
E fundamental right guaranteed under Article 19(l)(a).
Intervenor contended that the Amended Act is in consonance with
the judgment passed by this Court in Association for Democratic Reform 's
case and the vacuum pointed out is filled in by the enactment; that the
Amended Act is in public interest, thus, cannot be held to be illegal or
p void; that voters' right to know the antecedents of the candidate is not
part of the fundamental right, but is a derivative fundamental right on
the basis of interpretation of Article 19(1)(a) given by this Court, therefore,
it is open to the Legislature to nullify it by appropriate legislation; that
by insisting for declaration of assets of a candidate, right to privacy is
affected; that for the directions which are left out, the presumption would
G be-it is deliberate omission on the part of Legislature and, therefore, there
is no question of it being violative of Article 19(l)(a); that law pertaining
to election depends upon statutory provisions; that an enactment cannot
be struck down on the ground that Court thinks it unjustified; and that
the question involved in these petitions is a substantial question of law as
H to the interpretation of the Constitution, thus the matter may be referred
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. 1139
to Five Judge Bench. A
Respondent inter alia contended that by the impugned legislation,
most of the directions issued by the Court in Association for Democratic
Reform 's case are complied with and the vacuum pointed out is filled in
by the legislation; that the Legislature did not think it fit that the
remaining information as directed by this Court is required to be given B
by a contesting candidate; that as the phrase 'freedom of speech and
expression' is given the meaning to include citizens' right to know the
antecedents of the candidates contesting election, such rights could be set
at naught by legislature; that right to elect or to be elected is pure and
simple statutory right and in the absence of statutory provision' neither C
citizen has a right to elect nor has he a right to be elected because such
right is neither fundamental right nor a common law right, therefore, it
cannot be held that a voter has any fundamental right of knowing the
antecedents/assets of a candidate contesting the election; that the candidate
would be required to disclose his assets to the Speaker after being elected;
and that once the person is acquitted or discharged of any criminal offence, D
there is no necessity of disclosing the same to the voters.
Disposing of the writ petitions, the Court
Per Curiam:
E
l. Section 33-8 of the Representation of the People, Act, 1951, as
inserted by the Representation of the People (3rd Amendment) Act, 2002
is illegal, null and void.
2. The voter's right to know the antecedents of a candidate contesting
election is a facet of Article 19(1)(a) of the Constitution. F
Per Shah J:
I.I. Section 33-8 of the Representation of the People Act, 1951 is
illegal, null and void. However, this judgment would not have any
retrospective effect but would be prospective. 11194-Fl G
1.2. Section 33-8 which provides that 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 despite the directions issued by this Court, is on the face
of it beyond the legislative competence, as this Court has held that voter H
1140 SUPREME COURT REPORTS [2003] 2 S.C.R.
A has a fundamental right under Article 19(l)(a) to know the antecedents
of a candidate which could be abridged by passing such legislation only
as provided under Article 19(2). However nothing is pointed out how
impugned legislation could be justified or saved under Article 19(2).
Further the amended Act does not wholly cover the directions issued by
B this Court. On the contrary, it provides that candidate would not be bound
to furnish certain information as directed by this Court.
(1175-H; 1193-D-F; 1193-F, G(
2. The legislature can remove the basis of a decision rendered by a
competent Court thereby rendering that decision ineffective by
C appropriate legislation if it has power over the subject matter and
competence to do so under the Constitution but the legislature has no
power to ask the instrumentalities of the State to disobey or disregard the
decisions given by the Court. A declaration that an order made by a Court
of law is void is normally a part of thl! Judicial function. Legislature cannot
declare that decision rendered by the Court is not binding or is of no effect.
D Legislature is entitled to change the law with retrospective effect which
forms the basis of a judicial decision. This exercise is subject to
constitutional provision, therefore, it cannot enact a law which is violative
of fundamental right. 11193-A-D(
E The Municipal Corporation of the City ofAhmedabad v. The New Shrock
Spg. And Wvg. Co. Ltd., (197012 SCC 280; Smt. Indira Nehru Gandhi v. Shri
Raj Narain, (1975] Supp. SCC I; P. Sambamurthy v. State of A.P., IJ 987] I ,.
SCC 363 and Re. Cauveri Water Disputes Tribunal, 11993] Supp fl] SCC
96 (II), referred to.
p 3. I. For having free and fair election, information to voters is the
necessity. The reason to have right of information with regard to the
antecedents of the candidate is that voter can judge and decide intelligently
in favour of a candidate who satisfies his criterion of being elected as M.P.
or M.L.A. It is voter's discretion whether to vote in favour of candidate ----
who is illiterate or literate; against whom criminal cases for serious or
G non-serious charges were filed but is acquitted or discharged; who does
not have sufficient assets; whose liability is minimum. The exposure to
public gaze and scrutiny is one of the surest means to cleanse our
democratic governing system and to have competent legislature.
Disinformation, misinformation, non-information all equally create an
H uninformed citizenry which would finally make democracy a mobocracy
PEOPLE'S UNION FOR CIVIL LIBERTIES (PllCL) v. ll.0.1. J 141
and farce. [1159-A-E; 1168-G; 1194-C-D] A
3.2. The primary duty of the judiciary is to uphold the Constitution
and the laws without fear or favour, without being biased by political
ideology or economic theory. Interpretation should be in consonance with
the Constitutional provisions, which envisage a republic democracy,
survival of which depends upon free and fair election. (1153-E-F] B
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala,
[1973) 4 SCC 225; State of Rajasthan v. Union of India, [1977] 3 SCC 592;
State of Uttar Pradesh v. Raj Narain, [1975] ~ SCC 428; Indian Express
Newspapers (Bombay) Private Ltd. v. Union of India, (1985) 1 SCC 641; C
Ramesh Thappar v. State of Madras 1950 SCR 594; Secretary, Ministry of
Information and Broadcasting, Govt. ofIndia v. Cricket Association ofBengal,
(1995) 2 SCC 161 and S.P. Gupta v. Union of India, (1981] Suppl. SCC 87,
referred to.
Law Commission Report, 1999; Report of National Commission to D
Review the Working of the Constitution, March 2002; Ethics Manual for
Members, Officers and Employees of the US. House ofRepresentatives; Report
of Committee on State Funding of Elections, referred to.
4. It cannot be said that as there is no specific fundamental right of
the voter to know antecedents of a candidate, the declaration by this Court E
that such fundamental right can ·be held to be derivative, therefore, it is
open to the legislature to nullify it by appropriate legislation, since there
is no such concept of derivative fundamental rights. (1176-A-B]
5. It is established that fundamental rights enshrined in the
Constitution have no fixed content. Most of them are empty vessels into F
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 last more
- than half a decade, it has been so done by this Court consistently. There
C?nnot be any distinction between the fundamental rights mentioned in G
Chapter-III of the Constitution and the declaration of such rights on the
basis of the judgments rendered by this Court. It cannot be said that as
the phrase 'freedom of speech and expression' is given the meaning to
include citizens' right to know the antecedents of the candidates contesting
election, such rights could be set at naught by legislature.
[1183-H; 1184-A; 1194-D-El H
1142 SUPREME COURT REPORTS (2003] 2 S.C.R.
A Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors.,
1199311 SCC 645; Satwant Singh Sawhney v. D. Ramarathnam A.P.O., New
Delhi, 1196713SCR525; Gobind v. State of M.P., 119751 2 SCC 148; Sunil
Batra v. Delhi Administration, 119781 4 SCC 494; Charles Sabra) v. Supdt.
Central Jail, (1978] 4 SCC 104; M.H. Hoskot v. State of Maharashtra, 11978]
3 SCC 544; Hussainara Khatoon v. Home Secretary, State of Bihar, [1980]
B l SCC 81; Prem Shankar Shukla v. Delhi Administration, (1980] 3 SCC 526;
T. V. Vatheeswaran v. State of T.N., (1983] 2 SCC 68; Sheela Barse v. State
ofMaharashtra, (1983] 2 SCC 96; A.G. ofIndia v. Lachma Devi, [1989] Supp
I SCC 264; Parmanand Katra v. Union ofIndia, [1989] 4 SCC 286; Shelter,
Shantistar Builders v. N.K. Totame, (1990 l SCC 520; Ramesh Thappar v.
C State of Madras, AIR (1950) SC 124; Brij Bhushan and Anr., v. The State of
Delhi, AIR (1950) SC 129; Hamdard Dawakhana and anr etc. v. Union of
India, AIR (1960) SC 554; Sakal Papers (P) Ltd. and Ors., etc. v. Union of
India, AIR (1962) SC 305; Bennett r-::!eman and Co. and Ors. et~. v. Union
of India and Ors., (1972) 2 SCC 788; Indian Express Newspapers (Bombay)
(P) Ltd. and Ors. v. Union of India and Ors., [1985) 1 SCC 641; Odyssey
D Communications P. Ltd. v. Lokvidayan Sanghatana and Ors., (1988] 3 SCC
410; S. Rangarajan v. P. Jagjivan Ram and Ors., (19891 2 SCC 574; LIC v.
Mannubhai D. Shah (1992] 3 SCC 637; Secy. Ministry of Information and
Broadcasting, Govt. of India and Ors. v. Cricket Association of Bengal and
Ors., (199512 SCC 161; S.P. Gupta v. Union ofIndia and Anr., [1981] Suppl.
E SCC 87; State of UP. v. Raj Narain and Ors., [1975] 4 SCC 428; Dinesh
Trivedi, MP and Ors., v. Union of India and Ors., [1997] 4 SCC 306; P. V.
Narasimha Rao v. State, (CBIISPE) [1998] 4 SCC 626; C. Narayanaswamy
v. C.K. Jaffer Sharie/ and Ors., (1994] Supp. 3 SCC 170 and T.N. Seshan,
CEC of India v. Union of India and Ors., [1995] 4 SCC 611, referred to.
F 6. By declaration of a fact, which is a matter of public record that a
candidate was involved in various criminal cases, there is no question of
infringement of any right of privacy and also with regard to the
declaration of his assets. A person having assets or income is normally -......._/
required to disclose the same under the Income Tax Act or such similar
fiscal legislation. Not only this, but once a person becomes a candidate to
G acquire public office, such declaration would not affect his right of privacy.
This is the necessity of the day because of statutory provisions controlling
wide spread corrupt practices. (181-C-DI
R. Rajagopal alias R.R. Gopal and Anr. v. State of T.N. and Ors., (19941
H 6 sec 632, distinguished. _ ...
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. \ \ 43
B.R. Kapur V, State of Tamil Nadu, 120011 7 sec 231 and Common A
Cause v. Union of India and Ors., 119961 2 SCC 752, referred to.
7.1. The right to vote or stand as a candidate for election, and in an
election petition challenging the validity of election, rights of the parties
are governed by the statutory provisions for setting aside the election
subject to the limitations envisaged therein but this would not mean that B
a citizen who has right to be a voter and elect his representative in the
Lok Sabha or Legislative Assembly has no fundamental ri'ght. 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. Voters' fundamental right to know C
antecedents of a candidate is independent of statutory rights under the
election law. 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. Thus it cannot D
be said 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.
[1186-A-B; 1194-B; 1186-C; 1193-H; 1194-AI
7.2. The democracy based on adult franchise is part of the basic E
structure of the Constit~tion. The right of adult to take part in election
process either as a voter or as a candidate could be restricted by a valid
law which does not offend Constitutional provisions. It cannot be held that
as there is deliberate omission in law, the right of the voter to know
antecedents of the candidates, which is his fundamental right under Article p
19(1)(a), is taken away. [1186-C-DI
N.P. Ponnuswami v. Returning Officer., [19521 SCR 218; G.N.
Narayanswami v. G. Pannerselvam and Ors. [ 1972] 3 SCC 717; C.
Narayanaswamy v. C.K. Jaffer Sharie/ and Ors., 119941 Supp. 3 SCC 170
and Jyoti Basu and Ors. v. Debi Ghosal and Ors., [19821 1 SCC 691, G
distinguished.
8. If the provisions of the law violate the Constitutional provisions,
they have to be struck down. It is made clear that no provision is nullified
on the ground that the Court does not approve the underlying P.olicy of
H
I 144 SUPREME COURT REPORTS [2003) 2 S.C.R.
A the enactment. 11187-H; 1188-A]
Bennett Coleman & Co. and Ors. v. Union of India and Ors., (1972] 2
sec 788, relied on.
Dr. P. Nalla Thampy Terah v. Union of India and Ors., (1985) Suppl.
B sec 189, referred to.
9. While no exception can be taken to the insistence of affidavit with
regard to the matters specified in the judgment in Association for
Democratic Reform 's case, the direction to reject the nomination paper for
furnishing wrong information or concealing material information and
C providing for a summary enquiry at the time of scrutiny of the
nominations, cannot be justified. In the case of assets and liabilities, it
would be very difficult for the returning officer to consider the truth or
the details furnished with reference to the 'documentary proor. Very
often, in such matters the documentary proof may not be clinching and
D the candid.ate may be handicapped to rebut the allegation then and there.
If sufficient time is provided, he may be able to produce proof to contradict
the objector's version. It is true that the directions issued by the Election
Commission is not under challenge but at the same time prima facie it
appears that the Commission is required to revise its instructions in the
light of directions issued in Association for Democratic Reform 's case and
E as provided under the Representation of the People Act and its 3rd
Amendment. (1191-E-H; 1192-A]
10. After considering various decisions and following tests laid
therein, this Ci;urt in Association for Democratic Reform 's case held that
for survival of the democracy, right of the voter to know antecedents of a
F candidate would be part and parcel of his fundamental right. It would be
the basis for free and fair election which is a basic structure of the
Constitution. The question relating to interpretation of Article 19(I)(a) is
concluded and there is no other substantial question of law which requires
interpretation of the Constitution, Further it is apparent that in Association
G for Democratic Reform 's case, in appeal filed .by Union of India it was not.
contented that question involved in that matter was required to be decided
by five-Judge Bench, as provided under Article 145(3) of the Constitution.
The question raised in the instant case has been finally decided and no
other substantial question of law regarding the interpretation of the
Constitution survives. Hence, the matter is not required to be referred to
H five-Judge Bench. (1170-F, G; 1171-G-H]
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. 1145
State of Jammu & Kashmir and Ors. v. Thakur Ganga Singh.and Anr., A
[1960] 2 SCR 346; Sardar Sardul Singh Caveeshar v. State of Maharashtra,
[1964) 2 SCR 378 and Union ofIndia v. Association for Democratic Reforms.,
[2002) 5 sec 294, referred to.
11. It cannot be said that notice is required to be issued to the
Attorney General as vires of the Act is challenged, because 'Union ofIndia' B
is party respondent and on its behalf Solicitor General is appearing before
the Court. He has forcefully raised the contentions which were required
to be raised at the time of hearing of the matter. So, service of notice to
Attorney General would be nothing but empty formality. (1192-D)
Per Reddi, J (Partly dissenting):
c
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(l)(a). This right to information is, D
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;
and also it does not stand on the same footing as right to telecast and the
right to view the sports and games or other items of entertainment through
television. (1219-C-D; 1198-E] E
State ofU.P. v. Raj Narain., [1975) 4 SCC 428; S.P. Gupta v. Union of
India., (1981) Suppl. SCC 87; Dinesh Trivedi v. Union of India, (1997) 4
SCC 306; Secretary, Ministry ofI & B v. Cricket Association ofBengal, (1995)
2 SCC 161 and Union of India v. Association for Democratic Reforms, (2002)
s sec 294, referred to. F
2. The right to vote at the elections to the House of people or
Legislative Assembly is certainly a constitutional right though not a
fundamental right. It cannot be described merely as statutory right, pure
and simple. The right originates from the Constitution and in accordance G
with the constitutional mandate contained in Article 326, the right has been
shaped by the statute, namely, Representation of the People Act.
(1202-F, G)
NP. Ponnuswami v. Returning Officer, Namakkal Constitutency and
Ors., (1952] SCR 218 and Jyoti Basu v. Debi Ghosal, [1982] 3 SCR 318, H
1146 SUPREME COURT REPORTS [2003] 2 S.C.R.
A distinguished.
3.1. The casting of vote in favour of one or the other candidate
tautamounts 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.
B 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. Thus the fundamental right
of freedom of expression sets in when a voter actually casts his vote.
C [1203-B-C, D, E)
Jamuna Prasad v. Lachhi Ram, [195511 SCR 608, distinguished.
Black's Law Dictionary; Law Lexicon by Ramanatha Iyer; Collin's
Dictionary of English language 1983 reprint; A Dictionary of Modern
D Legal Usage by Garner Bryan A, 2nd Edition and New Oxford Illustrated
Dictionary, referred to.
3.2. 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
E Article 19(2). Whenever the rare situations of the kind anticipated 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). [1204-F; 1205-BI
Secretary, Ministry of Information and Boradcasting, Govt. of India v.
F Cricket Association of Bengal, [19951 2 SC(' 161, referred to.
Giltow v. New York, (1924) 69 L.Ed. 1138, referred to.
4.1. The point~r.of di~closure shpelt odut by this Cob~rt idn ~hed~ssociation ~
for Democratic Re1 orm s case s ou 1 serve as roa m 1cators or
G parameters in enacting the legislation for the purpose of securing the right
to information about the candidate. The directives given by this Court
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 au independent assessment in order to evaluate whether
H the items of information statutorily ordained are reasonably adequate to
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. l J4 7
secure the right of information available to the voter/citizen. In embarking A
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.
[1209-G; 12L'-E, F, G[
4.2. If the legislature in utter disregard of the indicators enunciated B
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(l)(a). The legislative provision should be such as to promote
the right to information to a reasonable extent, if not to the fullest extent C
on details of concern to the voters and citizens at large. While enacting
the legislation, the legislature has to ensure that the fundamental right
to know about the candidate is reasonably secured and information which
is crucial, by any objective standards, is not denied. It is for the
Constitutional Court in exercise of its judicial review power to judge
whether the areas of disclosure carved out by the Legislature are D
reasonably adequate to safeguard the citizens' right to information.
[1209-H; 1210-A-CI
4.3. 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 E
unlimited right and that at any rate, it has nb fixed concept and the
legislature has freedom to choose between two reasonable alternatives. The
·shape of legislation need not be solely controlled by the directives issued
to the Election Commission to meet an ad hoc situation since the right to
information cannot be placed in straight jacket formulae and the F
perceptions regarding the extent and amplitude of this right are bound to
vary. It is not a pr'lper 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. [1210-C-D; 1210-F)
G
5. Section 33B does not pass the test of constitutionality firstly
because 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, impermissible. The concept of freedom of
speech and expression does not remain static. The right to information
should be allowed to grow rather than being frozen and stagnated. The H
1148 SUPREME COURT REPORTS (2003] 2 S.C.R.
A second reason 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.
[1210-H; 1211-C, D, H; 1212-A)
B
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
C the pending cases in which cognizance has been taken by Court from the
ambit of disclosure. Further the information regarding acquittals 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. [1220-C, D; 1214-G]
D 7. Section 75A of the Act 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. If the right to information is to be
-
meaningful and to serve its avowed purpose, the candidate entering the
electoral contest should be required to disclose the assets and liabilities
E together with those of spouse or dependent children. Having accepted the
need to insist on disclosure of assets and liabilities, 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 right
to information guaranteed under Article 19(l)(a).[l220-D-E; 1215-D)
F
P. V. Narasimha Rao v. State, [1998] 4 SCC 626 and Gob ind v. State
of M.P., [1975) 2 SCC 148, referred to.
G
8. The disclosure of information regarding educational qualifications
of a candidate is not an essential component of the right to information
flowing from Article 19(l)(a). Hence the failure to provide for disclosure
-
of educational qualification does not infringe the freedom of expression.
[1218-C; 1220-E-F)
9. The Election Commission has to issue revised instructions to
ensure implementation of Section 33A subject to what is laid down in this
H judgment regarding the cases in which cognizance has been taken. The
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. 1149
Election Commission's orders as regards disclosure of assets and liabilities A
. will still hold good and continue to be operative. However, its direction
with regard to 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. (1220-F-H]
B
Per Dharmadhikari J. (Concurring with Shah J. and partly dissenting
from Reddi J., as regards the nature of directives given in the Association for
Democratic Reform 's case and disclosure of the educational qualification of
candidates).
1.1. Citizen's fundamental right of information should be recognised C
and fully effectuated. This freedom of a citizen to participate and choose
a candidate at an election is distinct from exercise of his right as a voter
which is to be regulated by statutory law on the election like the
Representation of the People Act. [1221-E, F)
D
1.2. Making of law for election reform is undoubtedly a subject
exclusively of legislature. On the basis of the decision of this Court in
Association for Democratic Reform 's case and the direction made therein
to the Election Commission, the ordinance and the Representation of the
People (3rd Amendment) Act has made an attempt to fill the void in law
but the void has not been filled fully and does not satisfy the requirements E
for exercise of fundamental freedom of citizen to participate in election
as a well informed voter. 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 Association for Democratic Reform 's case obligates
this Court as an important organ in constitutional process to intervene. F
This Court in Association for Democratic Reform 's case 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'. Therefore, Section 33B is struck down so as to revive the law
deferred by this Court in Association for Democratic Reform 's case.
(1221-F, H; 1222-A-CJ G
Union of India v. Association for Democratic Reforms, [2002) 5 SCC
294, referred to.
CIVIL ORIGINAL JURISDICTION Writ Petition (C) No. 490 of
2002. II
1150 SUPREME COURT REPORTS [2003] 2 S.C.R.
A (Under Article 32 of the Constitution of India.)
WITH
W.P. (C) Nos. 509 and 515 of 2002.
K.N. Rawal, Solicitor General, Rajinder Sachar, P.P. Rao, Ranjit Kumar,
B Sanjay Parikh, A.N. Singh, R. Chandrachud, Ms. Vandana Sudan, Abinash
K. Misra, Prashant Bhushan, Sanjeev K. Kapoor, T.K. Naveen, Vishal Gupta,
Anil Kumar Mittal, G. Balaji, Ms. Kamini Jaiswal, Ms. Bina Gupta, Ms.
Divya Roy. Prateek Jalan, Preetesh Kapur, S.N. Terdol and S. Muralidhar for
the appearing parties.
C The Judgments of the Court were delivered by
SHAH, J. These writ petitions under Article 32 of the Constitution of
India have been filed challenging the validity of the Representation of the
People (Amendment) Ordinance, 2002 (no.4 of 2002) ("Ordinance" for short)
promulgated by the President of India on 24th August, 2002.
D There was an era when a powerful or a rich or a strong or a dacoit aged
more than 60 years married a beautiful young girl despite her resistance.
Except to weep, she had no choice of selecting her mate. To a large extent,
such situation does not prevail today. Now, young persons are selecting
mates of their choice after verifying full details thereof. Should we not have
E such a situation in selecting a candidate contesting elections? In a vibrant
democracy-is it not required that a little voter should know bio-data of his/
her would be Rulers, Law-makers or Destiny-maker of the Nation?
Is there any necessity of keeping in dark the voters that their candidate
was involved in criminal cases of murder, dacoity or rape or has acquired the
F wealth by unjustified means? May be that he is acquitted because Investigating
Officer failed to unearth the truth or because the witnesses turned hostile. In
some cases, apprehending danger to their life, witnesses fail to reveal what
was seen by them.
Is there any necessity of permitting candidates or his supporters to use
G unaccounted money during elections? If assets are declared would it not
amount to having some control on unaccounted election expenditure?
It. is equally true that right step in that direction is taken by amending
the Representation of the People Act, 1951 (hereinafter referred to as 'the
Act') on the basis of judgment rendered by this Court in Union of India v.
H Association for Democratic Reforms, [2002] 5 SCC 294. Still however,
-.•
PEOPLE'S UNION FOR CIVIL LIBERTIES (P'.;CL) v. UOI. [SHAH, J] 1151
question to be decided is-whether it is in accordance with what has been A
declared in the said judgment?
After concluding hearing of the arguments on 23rd October, 2002, the
matter was reserved for pronouncement of judgment. Before the judgment
could be pronounced, the Ordinance was repealed and on 28th December
2002, the Representation of the People (3rd Amendment) Act, 2002 ("Amended B
Act" for short) was notified to come into force with retrospective effect.
Thereafter, an amendment application was moved before us challenging the
validity of Section 338 of the Amendment Act which was granted because
there is no change in the cause of action nor in the wording of Section 338
of the Amended Act, validity of which is under challenge. At the request of C
teamed counsel for the respondent-Union of India, time to file additional
counter was granted and the matter was further heard on· 3 lst January 2003.
It. is apparent that there is no change in the wording (even full stop or
coma) of Sections 33A and 338 of the Ordinance and Sections 33A and 338
of the Amended Act. The said sections read as under- D
"33A. Right to information.-{!) A candidate shall, apart from any
infonnation, which he is required to furnish under this Act or the
rules made thereunder in his nomination paper delivered under sub-
section (1) of section 33, also furnish the information as to whether-
E
(i) he is accused of any offence punishable with imprisonment
for two years or more in a pending case in which a charge
has been framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence other than any offence
referred to in sub-section (I) or sub-section (2), or covered F
in sub-section (3), of section 8 and sentenced to imprisonment
for one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the
.time of delivering to the returning officer the nomination paper under
sub-section (I) of section 33, also deliver to him an affidavit sworn G
by the candidate in a prescribed from verifying the information
specified in sub-section ( l ).
(3) The returning officer shall, as soon as may be after the furnishing
of infonnation to him under sub-section (I), display the aforesaid
infonnation by affixing a copy of the affidavit, delivered under sub- H
-· -- -------- ···- -· .. -·
1152 SUPREME COURT REPORTS (2003] 2 S.C.R.
A section (2) at a conspicuous place at his office for the information of
the electors relating to a constituency for which the nomination paper
is delivered."
338. Candidate to furnish information only under the Act and the
rules.-Notwithstanding anything contained in any judgment, decree
B or order of any court or any direction, order or any other instruction
issued by the Election Commission, no candidate shall be liable to
disclose or furnish any such information, in respect of his election,
which is not required to be disclosed or furnished under this Act or
the rules made thereunder."
C For the directions, which were issued in Association for Democratic
Reforms (supra), it is contended that some of them are incorporated by the
statutory provisions but with regard to remaining directions it has been
provided therein that no candidate shall be liable to disclose or furnish any
such information in respect of his eleciion which is not required to be disclosed
D or furnished under the Act or the Rules made thereunder, despite the directions
issued by this Court. Therefore, the aforesaid Section 338 is under challenge.
At the outset, we would state that such exercise of power by the
Legislature giving similar directions was undertaken in the past and this
Court in unequivocal words declared that the Legislature in this country has
E no power to ask the instrumentalities of the State to disobey or disregard the
decisions given by the Courts. For this, we would quote some observations
on the settled legal position having direct bearing on the question involved )
f
in these matters:-
J-
A. Dealing with the validity of Bombay Provisional Municipal
F Corporation (Gujarat Amendment and Validating Provisions)
Ordinance 1969, this Court in The Municipal Corporation ofthe
City ofAhmedabad and Anr. v. The New Shrock Spg. And Wvg.
Co. Ltd., (1970] 2 SCC 280 observed thus:-
"7. This is a strange provision. Primafacie that provision appears
G to command the Corporation to refuse to refund the amount
illegally collected despite the orders of this Court and the
High Court. The State of Gujarat was not well advised in
introducing this provision. That provision attempts to make
a direct inroad into the judicial powers of the State. The
Legislatures under our Constitution have within the prescribed
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.L [SHAH, l] 1153
limits, powers to make laws prospectively as well as A
retrospectively. By exercise of thos.J powers, the Legislature
can remove the basis of a decision rendered by a competent
court thereby rendering that decision ineffective. But no
legislature in this country has power to ask the
instrumentalities of the State to disobey or disregard the B
decisions given by court.... "
Further, Khanna, J. In Smt. Indira Nehru Gandhi v. Shri Raj Narain,
[1975] Supp. SCC 1 succinctly and without any ambiguity observed thus:-
"190. A declaration that an order made by court of law is void is
normally part of the judicial function and is not a legislative function. C
Although there is in the Constitution of India no rigid separation of
powers, by and large the spheres of judicial function and legislative
function have been demarcated and it is not permissible for the
Legislature to encroach upon the judicial sphere. It has accordingly
been held that a Legislature while it is entitled to change with D
retrospective effect the law which formed the basis of the judicial
decision, it is not permissible to the Legislature to declare the judgment
of the court to be void or not binding.
It is also settled law that the Legislature may remove the defect which
is the cause for invalidating the law by the Court by appropriate legislation E
if it has power over the subject matter and competence to do so under the
Constitution.
B. Secondly, we would reiterate that the primary duty of the
Judiciary is to uphold the Constitution and the laws without fear
or favour, without being biased by political ideology or economic F
theory. Interpretation should be in consonance with the
Constitutional provisions, which envisage a republic democracy.
Survival of democracy depends upon free and fair election, It is
true that the elections are fought by political parties, yet election
wou Id be a farce if the voters are unaware of antecedents of
candidates contesting elections. Their decision to vote either in G
favour of 'A'. or 'B' candidate would be without any basis. Such
election would be neither free nor fair.
For this purpose, we would refer to the observations made by Khanna,
J. in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kera/a
- and Anr., [1973] 4 sec 225, which read thus- H
1154 SUPREME COURT REPORTS [2003) 2 S.C.R.
A "That all constitutional interpretations have political consequences
should not obliterate the fact that the decision has to be arrived at in
the calm and dispassionate atmosphere of the court room, that judges
in order to give legitimacy to their decision have to keep aloof from
the din and controversy of politics and that the fluctuating fortunes
of rival political parties can have for them only academic interest.
B Their primary duty is to uphold the Constitution and the laws without
fear or favour and in doing so, they cannot allow any political ideology 'I
or economic theory, which may have caught their fancy, to colour the
decision. ''
C. It is also equally settled law that the Court should not shirk its
c duty from performing its function merely because it has political
thicket. Following observations (of Bhagwati, J., as he then
was) made in State of Rajasthan v. Union of India, [1977) 3
SCC 592, were referred to and relied upon by this Court in B.R.
Kapur v. State of Tamil Nadu, [200 I) 7 SCC 231 :
D "53. But merely because the question has a political complexi011, that
by itself is no ground why the court should shrink from performing
it duty under the Constitution if it raises an issue of constitutional
detennination. Every constitutional question concerns the allocation
and exercise of governmental power and no constitutional question
E can, therefore, fail to be political.... So long as a question arises
whether an authority under the constitution has acted within the limits
of its power or exceeded it, it can certainly be decided by the court.
Indeed it would be its constitutional obligation to do so. It is necessary
to assert the dearest possible terms, particularly in the context of
recent history, that the Constitution is suprema lax, th~ paramount
F law of the land, and there is no depa11ment or branch of Government
above or beyond it."
SUBMISSION:-
It is contended by learned Senior Counsel Mr. Rajinder Sachar and Mr.
G P.P. Rao the petitioners that the Section 338 is, on the face of it, arbitrary
and unjustifiable. It is their contention that the aforesaid section is on the face
of it void as a law cannot be passed which violates/abridges the fundamental
rights of the citizens/voters, declared and recognised by this Court. It is
submitted that without exercise of. :1e right to know the relevant antecedents
H of the candidate, it will not be possible to have free and fair elections.
-
PEOPLE'S UNlON FOR CIVIL LIBERTIES (PUCL) v. U.O.l. [SHAH, J] 1J55
Therefore, the impugned Section violates the very basic features of the A
Constitution, namely, republic democracy. For having free and fair elections,
anywhere in the territory of this country, it is necessary to give effect to the
voters' fundamental right as declared by this Court in the above judgment.
lt,'las been contended that, in our country, at present about 700 legislators
and 25 to 30 Members of Parliament are having criminal record. It is also B
contended that almost all political parties declare that persons having criminal
record should not be given tickets, yet for one or other rea~cm political parties
under some compulsion give tickets to some persons having criminal records
and some persons having no criminal records get support from criminals. It
is contended by learned senior counsel Mr. Sachar that by issuing the C
Ordinance, the Government has arrogated to itself the power to decide
unilaterally for nullifying the decision rendered by this Court without
considering whether it can pass legislation which abridges fundamental right
guaranteed under Article 19(1)(a). It is his submission that the Ordinance is
issued and thereafter the Act is amended because it appears that the
Government is interested in having uninformed ignorant voters, D
Contra, learned Solicitor General Mr. Kirit N Raval and learned senior
counsel Mr. Arnn appearing on behalf of the intervener, with vehemence,
submitted that the aforesaid Ordinance/Amended Act is in consonance with
the judgment rendered by this Court and the vacuum pointed out by the said
judgment is filled in by the eHactrnent. It is also contended by learned senior E
counsel Mr. Jaitley that voters' right to know the antecedents of the candidate
is not part of the fundamental rights, but it is a derivative fundamental right
, on the basis of interpretation of Article 19(I)(a) given by this Court. It is
submitted that the Ordinance/Amended Act is in public interest and, therefore,
it cannot be held to be illegal or void. In support of their contentions, learned F
counsel for the parties have referred to various decisions rendered by this
Court.
- Whether, Ordinance/Amended Act Covers The Directions Issued By
This Court:-
Before dealing with the rival submissions, we would refer to the
following directions (para 48) given by this Court in Association for
G
Democratic Rights case (supra):
"The Election Commission is directed to call for information on
affidavit by issuing necessary order in exercise of its power under
- Article 324 of the Constitution of India from each candidate seeking H
1156 SUPREME COURT REPORTS [2003) 2 S.C.R.
A election to Parliament or a State Legislature as a necessary part of his
nomination paper, furnishing therein, information on the following
aspects in relation to his/her candidature:-
(I) Whether the candidate is convicted/acquitted/discharged of any
criminal offence in the past-if any, whether he is punished
B with imprisonment or fine?
. (2) Prior to six months of filing of nomination, whether the candidate
is accused in any pending case, of any offence punishable with .
imprisonment for two years or more, and in which charge is
framed or cognizance is taken by the Court of law If so, the
c details thereof?
(3) The assets (immovable, movable, bank balance etc.) of a
candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particul.arly -.vhether there are any over dues
of any public financial institution or Government dues.
D (5) The educational qualifications of the candidate."
The learned counsel for the respondent submitted that the directions
issued by this Court are, to a large extent implemented by the aforesaid
Amended Act. It is true that some part of the directions issued by this Court
are implemented. Comparative Chart on the basis of Judgment and Ordinance
E would make the position clear:-
Subject Discussion in Provisions Under Impugned
Judgment dt. 2.5.2002 Ordinance/Amended Act
Past criminal Para 48(1) S.33A(l)(ii)
F Record All past convictions/ Conviction of any offence
acquittals/discharges, (expect S.8 offence) and
whether punished sentenced to imprisonment
with imprisonment or
fine.
of one year or more.
No such declaration in case
of acquittals or discharge.
-
G
(S.8 offences to be disclosed
in nomination paper itself)
Pending criminal Para 48(2) S.33A(l)(i)
cases. Prior to six months of filing Any case in which the
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [SHAH, J.] 1157
- of nomination, whether
the candidate has been
candidate has been accused
of any criminal offence
A
accused of any criminal punishable with
offence punishable with imprisonment
imprisonment of two years of two years or more,
or more, and charge framed and charge framed.
or congnizance taken.
B
Assets and Para 48(3) S.75A
liabilities Assets of candidate No such declaration by a·
(contesting the elections) candidate who is contesting
spouse and dependants. election. After election, c
elected candidate is
required to furnish
information relating to him
as well as his spouse and
dependent children's assets
to the Speaker of the House
D
of People.
Para 48(4)
Liabilities, particularly to No provision is made for
Government And public the candidate contesting E
financial institutions. election.
However, after election,
Section 75A(l)(ii) & (iii)
provides for elected
candidate. F
Educational Para 48(5) No provision.
- Qualifications. To be declared.
S.125A
Breach of No direction regarding Creates an offence ,, G
Provisions consequences of punishable by
non-compliance. imprisonment for six .
months or fine for .failure
to furnish affidavit in
accordance with SJ3A, as H
1158 SUPREME COURT REPORTS [2003) 2 S.C.R.
A well as for falsity or ..._
concealment in affidavit or
nomination paper.
S.75A(5)
Wilful contravention of
B Rules regarding asset
disclosure may be treated as
breach of privilege of the
House.
From the aforesaid chart, it is clear that a candidate is not required to
C disclose (a) the cases in which he is acquitted or discharged of criminal
offence(s); (b) his assets and liabilities; and (c) his educational qualification.
With regard to assets, it is sought to be contended that under the Act the
candidate would be required to disc!'.'~. the same to the Speaker after being
elected. It is also contended that once the person is acquitted or discharged
D of any criminal offence, there is no necessity of disclosing the same to the
voters.
FINALITY OF THE JUDGMENT:-
Firstly, it is to be made clear that the judgment rendered by this Court
E in Association for Democratic Reforms (Supra) has attained finality. The
voter' right to know the antecedents of the candidates is based on interpretation
of Article 19(I){a) which provides that all citizens of this country would
have fundamental right to. "freedom of speech and expression" and this
phrase is construed to· include fundamental right to know relevant antecedents
of the candidate contesting the elections.
F
Further even though we are not required to justify the directions issued
in the aforesaid judgment, to make it abundantly clear that it is not ipse dixit
and is based on sound foundation, it can be stated thus-
Democratic Republic is part of the basic structure of the
Constitution.
--
G
For this, free and fair periodical elections based on adult franchise
are must..
For having unpolluted healthy democracy, citizens-voters should
.be well-informed.
H So, the foundation of a healthy democracy is to have well-informed
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.O.l. (SHAH, J] 1159
citizens-voters. The reason to have right of information with regard to the A
antecedents of the candidate is that voter can judge and decide in whose
favour he should cast his vote. It is voter's discretion whether to vote in
favour of an illiterate or literate candidate. It is his choice whether to elect
a candidate against whom criminal cases for serious or non-serious charges
were filed but is acquitted or discharged. He is to consider whether his B
candidate may or may not have sufficient assets so that he may not be
tempted to indulge in unjustified means for accumulating wealth. For assets
or liability, the voter may exercise his discretion in favour of a candidate
whose liability is minimum and/or there are no over-dues of public financial
institution or government dues. From this information, it would be, to some
extent, easy to verify whether unaccounted money is utilized for contesting C
election and whether a candidate is contesting election for getting rich or
after being elected to what extent he became richer. Exposure to public
scrutiny is one of the known means for getting clean and less polluted persons
to govern the country. A little man-a citizen-a voter is the master of his
vote. He must have necessary information so that he can intelligently decide
in favour of a candidate who satisfies his criterion of being elected as M.P. D
or M.L.A. On occasions, it is stated that we are not having such intelligent
voters. This is no excuse. This would be belittling a little citizen, voter. He
himself may be illiterate but still he would have guts to decide in whose
favour he should cast his vote. In any case, for having free and fair election
and not to convert democracy into a mobocracy and mockery or a farce, E
information to. voters is the necessity.
Further in context of Section 8 of the Act, the Law Commission in its
Report submitted in 1999 observed as under:-
'' 5. I. The Law Commission had proposed that in respect of offences F
provided in sub-section (I) (except the offence mentioned in
clause (b) of sub-section (I) a mere framing of charge should
serve as a 'disqualification. This provision was sought to be
made in addition to e~isting provision which provides for
disqualification arising on account of conviction. The reason for
this proposal was that most of the offences mentioned in sub- G
section are either election offences or serious offences affecting
the society and that the persons committing these offences are
mostly persons having political clout and influence. Very often
these elements are supported by unsocial persons or group of
persons, with the result that no independent witness is prepared H
1160 SUPREME COURT REPORTS [2003] 2 S.C.R.
A to come forward to depose against such persons. In such a
situation, it is proving extremely difficult to obtain conviction
of these persons. It was suggested that inasmuch as charges
- •
were framed by a court on the basis of the material placed
before it by the prosecution including the material disclosed by
the charge-sheet, providing for disqualification on the ground
B of framing of the charge-sheet would be neither unjust n_or
unreasonable or arbitrary. "
The Law Commission also observed:-
6.3.1. There has been mounting corruption in all walks of public life.
c People are generally lured to enter politics or contest elections
for getting rich overnight. Before allowing people to enter public
life the public has a right to know the antecedents ofsuch persons.
The existing conditions in which people can freely enter the
political arena without demur, especially without the electorate
knowing about any details of the assets possessed by the
D
candidate are far from satisfactory. It is essential by law to
provide that a candidate seeking election shall fi1rnish the details
of all his assets (movable/immovable) possessed by him/her,
wife-husband, dependent relations, duly supported by an affidavit.
6.3 .2. Further, in view of recommendations of the Law Commiss_ion
E
for debarring a candidate from contesting an election if charges
have been framed against him by a Court in respect of offences
mentioned in the proposed section 8-B of the Act, it is also
necessary for a candidate seeking to contest election to furnish
details regarding criminal case, if any, pending against him,
F including a copy of the FIR/complaint and any order made by
the concerned court.
6.3.3. In order to achieve the aforesaid objectives, it is essential to
insert a new section 4-A after the existing section 4 of the
Representation of the People Act, I 951, as follows-
G
"4-A Qualification for membership of the House of the
People, the Council of States, Legislature Assembly of a
State or Legislative Council.
A person shall not be qualified to file his nomination for
H contesting any election for a seat in the House of the People, the
-
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [SHAH, J] 1161
Council of States Legislature Assembly or Legislative Council A
of a State unless he or she files-
(a) a declaration of all his assets (movable immovable) possessed
by him/her, his/her spouse and dependent relations, duly
supported by an affidavit, and
B
(b) a declaration as to whether any charge in respect of any offence
referred to in section SB has been framed against him by any
Criminal Court."
It is to be stated that similar views are expressed in the report submitted
in March 2002 by the National Commission to Review the Working of the C
Constitution appointed by the Union Government for reviewing the working
of the Constitution. Relevant recommendations are as under:-
Successes and Failures
4.4. During the last half-a-century, there have been thirteen general D
elections to Lok Sabha and a much large number to various State
L~gislative Assemblies. We can take legitimate pride in that these
have been successful and generally acknowledged to be free and fair.
But the experience has also brought to fore many distortions, some
very serious, generating a deep concern in many quarters. There are
constant reference to the unhealthy role of money power, muscle E
power and mafia power and to criminalisation, corruption,
communalism and casteism.
4.12. Criminalisation--
4.12.2 The Commission recommends that the Representation of the F
People Act be ·amended to provide that any person charged with any
offence punishable with imprisonment for a maximum term of five
years or more, should be disqualified for being chosen as, or for
being a member of Parliament or legislature of a State on the expiry
of a period of one year from the date the charges were framed against G
him by the Court in that offence and unless cleared during that one
yepr period he shall continue to remain so disqualified till the
conclusion of the trial for that offence. In case a person is convicted
of any offence by a court of law and sentenced to imprisonment for
six months or more the bar should apply during the period under
which the convicted person is undergoing th_e sentence and for a H
1162 SUPREME COURT REPORTS [2003] 2 S.C.R.
A further period of six years after the completion of the period of the
sentence. If any ca!ldidate violates this provision, he should be
disqualified. Also, if a party puts up such a candidate with knowledge
of his antecedents, it should be derecognised and deregistered.
4. i2.3. Any person convicted for any heinous crime like murder,
B rape, smuggling, dacoity etc., should be pennanently debarred from
contesting for any political office.
4.12.8. The Commission feels that the proposed provision laying down
that a person charged with an offence punishable with imprisonment
which may extend to five years or more should be disqualified from
c contesting elections after the expiry of a period of one year from the
date the charges were framed in a Court of law should equally be
applicable to sitting members of Parliament and State Legislatures as
to any other such person.
4.14. High Cost of Elections and Abuse of Money Power.
D
4.14.1. One of the most critical problems in the matter of electoral
refonns is the hard reality that for contesting an election one needs
large amounts of money. The limits of expenditure prescribed are
meaningless and almost never adhered to. As a result, it becomes
difficult for the good and the honest to enter legislatures. It also
E creates a high degree of compulsion for corruption in the political
arena. This has progressively polluted the entire system. Corruption,
because it erodes performance, becomes one of the leading reasons
for non-performance and compromised governance in the country.
The sources of some of the election funds are believed to be
F unaccounted criminal money in return for protection, unaccounted
funds ji-om business groups who expect a high return on this
investment, kickbacks or commissions on contrast etc. No matter how
we look at it citizens are directly affected because apart from
compromised governance, the huge money spent on elections pushes
up the cost of everything in the country. It also leads to unbridled
G corruption and the consequences of wide spread corruption are even
more serious than many imagine. Electoral compulsions for funds
become the foundation of the whole super structure of corruption.
4.14.3. Transparency in the context of election means both the sources
of finance as well as their utilization as are listed out in an audited
H statement. If the candidates are required to list the sources of their
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.I. [SHAH, J.] ] J63
income, this can be checked back by the income tax authorities. The A
Commission recommended that the political parties as well as
individual candidates be made subject to a proper statutory audit of
the amounts they spend These accounts should be monitored through
a system of checking and cross-checking through the income-tax
returns filed by the candidate, parties and their well-wishers. At the B
end of the election each candidate should submit an audited statement
of expenses under specific heads. The EC should devise specific
fonnats for filing such statements so that fudging of accounts becomes
difficult. Also, the audit should not only be mandatory but it should
be enforced by the Election Commission.
Any violation or misreporting should be dealt with strongly.
c
4.14.4. The Commission recommends that every candidate at the time
of election must declare his assets and liabilities along with those of
his close relatives. Every holder of a political position must declare
his assets and liabilities along with those of his close relations D
annually. Law should define the term 'close relatives'. ,
4.14.6. All candidates should be required under law to declare their
assets and liabilities by an affidavit and the details so given by them
should be made public. Further, as a follow up action, the particulars
of the assets and liabilities so given should be audited by a special E
authority created specifically under law for the purpose. Again, the
legislators should be required under law to submit their returns about
their liabilities every year and a final statement in this regard at the
end of their term of office.
Candidates owing Government Dues F
4.23. It is recommended that all candidates should be required to
clear government dues before their candidatures are accepted This
pertains to payment of taxes and bills and unauthorised occupation of
accommodation and availing of telephones and other govemrnent
facilities to which they are no longer entitled. The fact that matters G
regarding Government dues in respect of the candidate are pending
before a Court of Law should be no excuse.
Mr. P.P. Rao, learned senior counsel has drawn our attention to the
'Ethics Manual for Members, Officers and Employees of the U.S.
House of Representatives', which inter a/ia provides as under- H
1164 SUPREME COURT REPORTS [2003] 2 S.C.R.
A Financial interests and investments of Members and employees, as
well as those of candidates for the House of Representatives, may
present conflicts of interest with official duties. Members and
--
{
employees need not however, divest themselves of assets upon
assuming their positions, nor must Members disqualify themselves
from voting on issues that generally affect their persons financial
B interests. Instead, public financial disclosure provides a means of
monitoring and deterring conflicts.
All Members, officers, and employees are prohibited from improperly
using their official position for personal gain. Members, officers,
candidates, and certain employees must file annual Financial Disclosure
c Statements, summarizing financial information concerning themselves,
their spouses, and dependent children. Such statements must indicate
outside compensation, holding and business transactions, generally
for the calendar year preceding the filing date.
D Who must File
The following individuals must file Financial Disclosure Statements:-
• Members of the House of Representatives;
• Candidates for the House of Representatives;
E
When to File
Candidates who raise or spend more than $5,000 for their
campaigns must file within 30 days of doing so, or by May 15,
whichever is later, but in any event at least 30 days prior to the
F elections in which they run.
Termination reports must be filed within 30 days of leaving
government employment by Members, officers, and employees who
file Financial Disclosure Statements.
G Policies underlying Disclosure
Members, officers, and certain employees must annually disclose
personal financial interests, including investments, income, and ··
liabilities. Financial disclosure provisions were enacted to monitor
and to deter possible conflicts. of interest due to outside financial
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [SHAH, J] 1165
·- holding Proposals for divestiture of potentially conflicting assets and
mandatory disqualification of Members from voting rejected as
impractical or unreasonable. Such disqualification could result in the
A
disenfranchisement, of a Member's entire constituency on particular
issues. A Member may often have a community of interests with his
constituency, may arguably have been elected because of and to serve
these common interests, and thus would be ineffective in representing B
the real interests of his constituents if he were disqualified from voting
on issues touching those matters of mutual concern. In rare instances,
the House Rule on abstaining from voting may apply where a direct
personal interest in a matter exists.
At the other extreme, a conflict of interest becomes corruption
c
when an official uses his position of influence .to enhance his personal
financial interests. Between these extremes are those ambiguous
circumstances which may create a real or potential conflict of interest.
The problem is identifying those instances in which an official allows
his personal economic interests to impair his independence of judgment D
in the conduct of his public duties.
The House has required public financial disclosure by rule since
1968 and by statute since 1978.
Specific Disclosure Requirements E
The Ethics in Government Act of 1978 mandated annual financial
disclosure by all senior Federal personnel, including all Members and
some employees of the House. The Etihics Reform Act of 1989 totally
revamped these provisions and condensed what had been different F
requirements for each branch into one uniform title covering the entire
Federal Government. Financial Disclosure Statements must indicate
outside compensation holding, and business transactions generally
for the calendar year preceding the filing date in all instances, filers
may disclose addition information or explanation at their discretion."
G
At this stage, it would be worth-while to note some observations made
by the Committee on State Funding of Elections headed by Shri Indrajit
Gupta as Chairman and which submitted its report in 1998. In the ~oncluding
portion, it has mentioned as under-
H
1166 SUPREME COURT REPORTS [2003] 2 S.C.R.
A "Conclusion:-
I. Before concluding, the Committee cannot help expressing its
considered view that its recommendations being limited in nature and
confined to only one of the aspects of the electoral reforms may bring
about only some cosmetic changes in the electoral sphere. What is
B needed, however, is an immediate overhauling of the electoral process
whereby elections are freed from evil influence of all vitiating factors.
particularly, criminalisation of politics. It goes without saying that
money power and muscle power go together to vitiate the electoral
process and it is their combined e1Ject which is sullying the purity of
electoral contests and effecting free and fair elections. Meaningful
c electoral reforms in other spheres of electoral activity are also urgently
needed if the present recommendations of the Committee are to serve
the intended useful purpose.
From the aforesaid reports of the Law Commission, National
D Commission to Review the Working of the Constitution, Conclusion drawn
in the report of Shri Indrajit Gupta and Ethics Manual applicable in an advance
democratic country, it is apparent for saving the democracy from the evil
influence of criminalisation of politics, for saving the election from muscle
and money power, for having true democracy and for controlling corruption
in politics, the candidate contesting the election should be asked to disclose
E his antecedents including assets and liabilities. Thereafter, it is for the voters
to decide in whose favour he should cast his vote.
Further, we would state that this Court has construed freedom of speech
and expression in various decisions and on basis of tests laid therein, directions
F were issued. In short, this aspect is discussed in paragraphs 31, 32 and 33 of
our earlier judgment which read as under:-
"31. In State of Uttar Pradesh v. Raj Narain and Ors., [1975] 4 SCC
428, the Constitution Bench considered a question-whether privilege
can be claimed by the Government of Uttar Pradesh under Section
123 of the Evidence Act in respect of what has been described for the
G sake of brevity to be the Blue Book summoned from the Government
of Uttar Pradesh and certain documents summoned from the
Superintendent of Police, Rai Bareli, Uttar Pradesh? The Court
observed that "the right to know which is derived from the concept
of freedom of speech, though not absolute, is a factor which should
H make one wary, when secrecy is claimed for transactions which can,
PEOPLE'S UNION FOR CIVIL LIBERTIES (PT ICL) v. U.0.1. [SHAH, J] 1167
- at any rate, have no repercussion on public security". The Court
pertinently observed as under:-
A
''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 B
functionaries. They are entitled to know the particulars of every public
transaction in all its bearing ... "
32. In Indian Express Newspapers (Bombay) Private Ltd. and Ors.,
etc. v. Union of India and Ors., (1985) 1 SCC 641, this Court dealt
with the validity of customs duty on the newsprint .in context of C
Article 19(1 )(a). The Court ob5erved (in para 32) thus:
"The purpose of the press is to advance the public interest
by publishing facts and opinions without which a democratic
country cannot make responsible judgments... "
D
33. The Court further referred (in para 35) to the following
observations made by this Court in Ramesh Thappar v. State of·
Madras, [1950] SCR 594:-
" ..... (The freedom) lay at the foundation of all democratic
organisations for without free political discussion no public education, E
so essential for the proper functioning of the processes of popular
government is possible. A freedom of such amplitude might involve
risks of abuse ........ (But) "it is better to leave a few of its noxious
branches to their luxuriant growth, than by pruning them away, to
injure the vigour of those yielding the proper fruits." F
Again in paragraph 68, the Court observed:-
'' .... The public interest in freedom of discussion (of which the freedom
of the pr:ess is one aspect) stems from the requirement that members
of a democratic society should be sufficiently informed that they may G
influence intelligently the decisions which may affect themselves (Per
Lord Simon of Glaisdale in Attorney-General v. Times Newspapers
Ltd., (1973) 3 All ER 54. Freedom of expression, as learned writers
have observed, has four broad social purpose to serve: (i) it helps an
individual to attain self-fulfilment. (ii) it assists in the discovery of
truth. (iii) it strengthens the capacity of an individual in participating H
)!"
1168 SUPREME COURT REPORTS [2003] 2 S.C.R.
A in decision- making and (iv) it provides a mechanism by which it
would be possible to establish a reasonable balance between stability
and social change. All members of society should be able ' to form
their own belieft and communicate them freely to others. In sum, the
fundamental principle involved here is the people's right to know.
Freedom of speech and expression should, therefore, receive a
B
generous support from all those who believe in the participation of
people in the administration. .... "
Even with regard to telecasting of events such as cricket. football and
hockey etc. this Court in Secretary, Ministry ofInformation and Broadcasti/;g,
C Govt. of India v. Cricket Association of Bengal, [1995] 2 SCC 161 held that
''the right to freedom of speech and expression also includes right to educate,
to inform and to entertain and also the right to be educated, informed and
entertained." The Court further held as under:-
"82. True democracy cannot exist unless all citizen have a right to·
D participate in the affairs of the polity of the country. The right to
participate in the affairs of the country is meaningless unless the
citizens are well informed on all sides of the. issues, in respect of
which they are called upon to express their views. One-sided
information, disinformation misinformation and non-information all
E equally create an uninformed citizenry which makes democracy a
farce when medium of information is monopolised either by a partisan
central authority or by private individuals or oligarchic organisations.
This is particularly so in a country like ours where about 65 per cent
of the population is illiterate and hardly 1112 per cent of the population
has an access to the print media which is not subject to pre-
F censorship ..... ''
The aforesaid passage leaves no doubt that right to participate by casting
vote at the time of election would be meaningless unless the voters are well
inform_ed about all sides of the issues, in respect of which they are called
G upon to express their views by casting their votes. Disinformation,
misinformation, non-information all equally create an uninformed citizenry
which would finally make democracy a mobocracy and farce. On this aspect,
no further discussion is requited. However, we would narrate some
observations made by Bhagwati, J. (as he then was) in S.P. Gupta v. Union
.ofIndia, [1981] Supp. SCC 87, while dealing with the contention of right to
H secrecy that- "there can be little doubt that exposure to public gaze and
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [SHAH, J.] 1169
scrutiny is one of the surest means of achieving a clean and healthy A
administration'' Further, it has been explicitly and lucidly held thus:-
"64. Now it is obvious from the Constitution that we have adopted
a democratic form of Government. Where society has chosen to accept
democracy as its credal faith, it is elementary that the citizens ought
to know what their government is doing. The citizens have a right to B
decide by whom and by what rules they shall be governed and they
are entitled to call on those who govern on their behalf to account
1 for their conduct. No democratic Government can survive without
I
I accountability and the basic postulate of accountability is that the
people shoula have information about the functioning of the C
government. It is only if people know how government is functioning
that they can fulfil the role which democracy assigns to them and
make democracy a really effective participatory democracy.
''Knowledge" said James Madison. "will for ever govern ignorance
and people who mean to be their own governors must arm themselves
with the power knowledge gives. A popular government without D
popular information of the means of obtaining it, is but a prologue to
a force or tragedy or perhaps both." The citizens' right to know the
facts, the true facts, about the administration of the country is thus
one of the pillars of a democratic State. And that is why the demand
for openness in the government is increasingly growing in different E
parts of the world.
65. The demand for openness in the government is based principally
on two reasons. It is now widely accepted that democracy does not
consist merely in people exercising their franchise once in five years
to choose their rules and, once the vote is cast, then retiring in passivity
F
and not taking any interest in the government. Today it is common
ground that democracy has a more positive content and its orchestration
- has to be continuous and pervasive.' This means inter alia that people
should not only cast intelligent and rational .votes but should also
exercise sound judgment on the conduct of the government and the
merits of public policies, so that democracy does not remain merely G
a sporadic exercise in voting but becomes a continuous process of
government-an attitude and habit of mind. But this important role
people can fulfil in a democracy only if it is an. open government
where there is full access to information in regard to the functioning
of the government. ''
H
1170 SUPREME COURT REPORTS (2003] 2 S.C.R.
{
A It was further observed
"67 ....... 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)..... The ','
approach of the court must be to attenuate the area of secrecy as
B much as possible consistently with the requirement of public interest,
bearing in mind all the time that disclosure also serves an important
aspect of public interest. It is in the context of this background that
we must proceed to interpret Section 123 of the Indian Evidence
Act."
c From the aforesaid discussion it can be held that it is expected by all
concerned and as has been laid down by various decisions of this Court that
for survival of true democracy, the voter must be aware of the antecedents
of his c.andidate. Voter has to caste intelligent and rational vote according to
his own criteria. A well informed voter is the foundation of democratic
D· structure. That information to a voter, who is the citizen of this country, is
one facet of the fundamental right under Article 19(1 )(a).
Article 145 (3) Of The Constitution Of India-
Mr. Arun Jaitley, learned Senior Counsel and Mr. Kirit N. Raval learned
E Solicitor General submitted that the question involved in these petitions is a
substantial question of law as to the interpretation of the Constitution and,
therefore, the matter may be referred to a Bench consisting of Five Judges.
In our view, this contention is totally misconceived. Article 19(1)(a) is
interpreted in numerous judgments rendered by this Court. After considering
F various decisions and following tests laid therein, this Court in Association
for Democratic Reforms (supra) arrived at the conclusion that for survival of
the democracy, right of the voter to know antecedents ofa candidate would
be part and parcel of his fundamental right. It would be the basis for free and
fair election which is a basic structure of the Constitution. Therefore, the
G question relating to interpretation of Article 19(1)(a) is concluded and there
is no other question which requires interpretation of Constitution.
--
Dealing with the similar contention, Five Judge Bench of this Court in
State of Jammu & Kashmir and Ors. v. Thakur Ganga Singh and Anr.,
[1960] 2 SCR 346 succinctly held thus:-
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [SHAH, J.] 117 J
"What does interpretation of a provision mean? Interpretation is A
the method by which the true sense or the meaning of the word is
understood. The question of interpretation can arise only if two or
more' possible constructions are sought to be placed on a provision -
one party suggesting one construction and the other a different one.
But where the parties agree on the true interpretation of a provision
or do not raise any question in respect thereof, it is not possible to B
hold that the case involves any question of law as to the interpretation
of the Constitution. On an interpretation of Art. 14, a series of decisior.s
of this Court evolved the doctrine of classification. As we have pointed
out, at no stage of the proceedings either the correctness of the
interpretation of Art. 14 or the principles governing the doctrine of C
classification have been questioned by either of the parties. Indeed
accepting the said doctrine, the appellants contended thatthere was
a valid classification· under the rule while the respondents argued
centra. The learned Additional Solicitor General contended, for the
first time, before us that th~ appeal raised a new facet of the doctrine
of equality, namely whether an artificial person and a natural pt:rson D
have equal attributes within the meaning of the equality clause, and
therefore, the case involves a question of interpretation of the
Constitution. This argument if we may say so, involves the same
contention in a different garb. If analysed, the argument only comes
to this : as an artificial person and a natural person have different E
attributes, the classification made between them is valid. This argument
does not suggest a new interpretation of Art. 14 of the Constitution,
but only attempts to bring the rule within the doctrine of classification.
We therefore, hold that question raised in this case does not involve
any question of law as to the interpretation of the Constitution."
F
The aforesaid judgment is referred to and relied upon in Sardar Sardul
Singh Caveeshar v. State of Maharashtra, [1964] 2 SCR 378.
From the judgment rendered by this Court in Association for Democratic
Reforms (supra), it is apparent that no such contention was raised by the
learned Solicitor General, who appeared in appeal filed on behalf of the G
Union of India that question involved in that matter was required to be
decided by five-Judge Bench, as provided under Article 145(3) of the
Constitution. The question raised before us has been finally decided and no
other substantial question of law regarding the interpretation of the Constitution
survives. Hence, the matter is not required to be referred to five-Judge Bench. H
1172 SUPREME COCRT REPORTS [2003) 2 S.C.R.
A Whether Impugned Section 33-B Can Be Considered As Validating
Provision:-
The learned counsel for the respondent submitted that by the impugned
legislation, most of the directions issued by the Court are complied with and
vacuum pointed out is filled in by the legislation. It is their contention that
B the Legislature did not think it fit that the remaining information as directed
by this Court is required to be given by a contesting candidate.
This submission is, on the face of it, against well settled legal position.
In a number of decisions rendered by this Court, similar submission is
C negatived. The legislature has no power to review the decision and set it at
naught expect by removing the defect which is the cause pointed out by the
decision rendered by the court. If this is permitted it would sound the death
knell of the role of law as observed by this Court in various decisions. In P.
Sambamurthy v. Stale of A.P.. [I 98"1 J I SCC 363 this Court observed.-
"4 ....... it is a basic principle of the rule of law that the exercise of
D
power by the executive or any other authority must not only be
conditioned by the Constitution but must also be in accordance with
law, and the power of judicial review is conferred by the Constitution
with a view to ensuring that the law is observed and there is compliance
with the requirement of law on the part of the executive and other
E authorities. It is through the power of judicial review conferred on an
independent institutional authority such as the High Court that the
rule of law is maintained and every organ of the State is kept within
the limits of the law. Now if the exercise of the power of judicial
review can be set al naught by the Stale Government by overriding
F
the decision given against it, ii would sound the death-knell of the •
rule of law. The rule of law would cease to have any meaning because
then it would be open to the State Government to defy the law and
yet to get away with ii. The provision to clause (5) of Article 3 71-D
is, therefore, clearly violative of the basic structure doctrine. "
G Jn Re.Cauveri Water Disputes Tribunal, [1993] Supp. I SCC 96 (II) the
Court referred to and relied upon the decision in P. Sambamurthy (supra). In
that case, the Court dealt with the validity of the Karnataka Cauvery Basin
Irrigation Protection Ordinance. 1991 issued by the Government of Karnataka
giving overriding effect that notwithstandi!lg anything contained in any order,
report or decision of any Court or Tribunal except the final decision under
H the provisions of sub-Section (2) of Section 5 read with Section 6 of the
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.O.l. [SHAH, J] 1173
Inter-State Water Disputes Act, 1956 shall have any effect and held that the A
Ordinance in question which seeks directly to nullify the order of the Tribunal
impinges on the judicial power of the State and is, therefore, ultra vires.
After referring to the earlier decisions, the Court observed thus:-
"74 ...... it would be unfair to adopt legislative procedure to undo
a settlement which had become the basis of a decision of the High B
Court. Even if legislation can remove the basis of a decision, it has
to do it by alteration of general rights of a class but not by simply
excluding the specific settlement which had been held to be valid and
enforceable by a High Court. The object of the Act was in effect to
take away the force of the judgment of the High Court. The rights C
under the judgment would be sai.d to arise independently of Article
19 of the Constitution.
76. The principle which emerges from these autho6ties is that the
legislature can change the basis on which a decision is given by the
Court and thus change the law in general, which will affect a class D
of persons and events at large. It cannot, however, set aside on
individual decision alone. Such an act on the part of the legislature
amounts to exercising the judicial power of the State and to functioning
as an appellate court or tribunal. ''
Further, in The Municipal Corporation of the City of Ahmedabad and E
Anr. etc. etc. v. The New Shrock Spg. And Wvg. Co. Ltd. etc. etc., [1970] 2
SCC 280 this Court (in para 7) held thus:-
" ... But no Legislature in this country has power to ask the
instrumentalities of the State to disobey or disregard the decisions F
given by courts. The limits of the power of Legislatures to interfere
with the directions issued by courts were considered by several
-- decisions of this Court. In Shri Prithvi Cotton Mills Ltd. and Anr. v.
The Broach Borough Municipality and Ors., [1969] 2 SCC 283, our
present Chief Justice speaking for the Constitution Bench of the Court
observed: G
"Before we examine Section 3 to find out whether it is
effective in its purpose or not we may say a few words about
validating statutes in general. When a Legislature sets out to
/
validate a tax declared by a court to be illegally collected under
an ineffective or an invalid law the cause for ineffectiveness or H
1174 SUPREME COURT REPORTS [2003] 2 S.C.R.
A invalidity must be removed before validation can be said to take
place effectively. The most important condition of course, is
that the legislature must possess the power to impose the tax
for, if it does not, the action must ever remain ineffective and
illegal. Granted legislative competence, it is not sufficient to
declare merely that the decision of the court shall not bind for
B that is tantamount to reversing the decision in exercise ofjudicial
power which the Legislature does not possess or exercise. A
court's decision must always bind unless the conditions on which
it is based are so fundamentally altered that the decision could
not have been given in the altered circumstances. Ordinarily, a
c court holds a tax to be invalidity imposed because the power to
tax is wanting or the statute or the rules or both are invalid or
do not sufficiently create the jurisdiction. Validation of a tax so
declared illegal may be dorp ::nly if the grounds of illegality or
invalidity are capable of being removed and are in fact removed
and the tax thus made legal. Sometime this is done by providing
D for jurisdiction where jurisdiction had not been properly invested
before. Sometimes this is done by re-enacting retrospectiv~ly a
valid and legal taxing provision and then by fiction making the
tax already collected to stand under the re-enacted law."
In Mahal Chand Sethia v. State of West Bengal [Crl. A. No. 75
E
of 1969, decided on I 0.9. I 969], Mitter, J., speaking for the Court
stated the legal position in these words:
"The argument of counsel for the appellant was that
although it was open to the State legislature by an Act and the
F Governor by an Ordinance to amend the West Bengal Criminal
Law Amendment (Special Courts) Act, I 949, it was incompetent
--
for either of them to validate an order of transfer which had
already been quashed by the issue of a writ of certiorari by the
High court and the order of transfer being virtually dead, could
not be resuscitated by the Governor or the Legislature and the
G validating measures could not touch any adjudication by the
Court.
.. ... A court of law can pronounce upon the validity of
any law and declare the same to be null and void if it was
beyond the legislative competence of the Legislature or if it
H
·~ ..
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.L [SHAH, l] ] \ 75
infringed the rights enshrined in part III of the Constitution. A·
Needless to add it can strike down or declare invalid any Act,
or direction of a State Government which is not authorised by
law. The position of a Legislature is however different.It cannot
declare any decision of a Court of law to be void or of not
effect."
B
For the purpose of deciding these petitions, the principles emerging
from various decisions rendered by this Court from time to time can inter
alia be summarised thus:-
- the legislature can change the basis on which a decision is rendered
by this Court and change the law in general. However, this power C
can be exercised subject to Constitutional provision, particularly,
legislati~e competence and if it is violative of fundamental rights
enshrined in part Ill of the Constitution, such law would be void as
provided under Article 13 of the Constitution. Legislature also cannot
declare any decision of a court of law to be void or of no effect. D
As stated above, this Court has held that Article 19(1)(a) which provides
for freedom of speech and expression would cover in its fold right of the
voter to know specified antecedents of a candidate, who is contesting election.
Once it is held that voter has a fundamental right to know antecedents of his
candidate, that fundamental right under Article 19(1 )(a) could be abridged by E
passing such legislation only as provided under Article 19(2) which provides
as under.
'19. Protection of certain rights regarding freedom of speech,
etc.-(2) Nothing in sub-clause (a) of clause (I) shall affect the
operation of any existing law, or prevent the State from making any F
law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests
of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign states, public order, decency or morality
or in relation to contempt of court, defamation or incitement to an G
offence."
So legislative competence to interfere with a fundamental right enshrined
in Article 19(1) (a) is limited as provided under Article 19(2).
Learned counsel for the respondents have not pointed out how the
- H
1176 SUPREME COURT REPORTS [2003] 2 S.C.R.
A impugned legislation could be justified or saved under Article 19(2).
Derivative Fundamental Right-
Learned senior counsel Mr. J11itley developed an ingenious submission
that as there is no specific fundamental right of the voter to know antecedents
B of a candidate, the declaration by this Cou11 of such fundamental right can
be held to be derivative, therefore, it is open to the legislature to nullify it by
appropriate legislation.
In our view, thjs submission requires to be rejected as there is no such
concept of derivative fundamental rights. Firstly, it should be properly
C understood that the fundamental rights enshrined in the Constitution such as,
right to equality and freedom have no fixed contents. From time to time, this
Court has filled in the skeleton with soul and blood and made it vibrant.
Since last more than 50 years, this court has interpreted Articles 14, 19 and
21 and given meaning and colour so that nation can hav~ a truly republic
D democratic society. This cannot be undone by such an Ordinance/Amended
Act. For this, we would refer to the discussion by Mohan, J in Unni Krishnan,
J.P. and Ors. v. State of Andhra Pradesh and Ors., [1993] I SCC 645, while
considering the ambit of Article 21, he succinctly placed it thus:-
'25. In Kesavananda Bharati v. State of Kera/a, [1973] 4 SCC 225,
E Mathew .I stated therein that the fundamental rights themselves
have 110 fixed content, most of them are empty vessels into which
each generation must pour its content in the light of its
experience. It is relevant in this context to remember that in
building up a just social order it is sometimes imperative that
the fundamental rights should be subordinated to directive
F principles.
26. In Pathumma v. State of Kerala, [1978] 2 SCC I it has been
stated that:
"The attempt of the court should be to expand the reach and
ambit of the fimdamental rights rather than accentuate their
G
meaning and content by process of judicial construction. ..
Personal liberty in Article 21 is of the widest amplitude"
27. In this connection, it is worth while to recall what was said of
the Americ3n Constitution in Missouri v. Holland 252 US 416,
433 :
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [SHAH, J.] 1177
"Wh~n we are dealing with words that also are constituent A
act, like the Constitution of the United States, we must realize
that they have called into life a being the development of
which could not have been foreseen completely by the most
gifted of its begetters."
Thereafter, the Court pointed out that several unenumerated rights fall B
within the ambit of Article 21 since personal liberty is of widest amplitude
and categorized them (in para 30) thus:-
" (I) The right to go abroad. Satwant Singh Sawhney v. D.
Ramarathnam. A.P.O. New Delhi, [1967] 3 SCR 525.
c
(2) The right to privacy. Gobind v. State of MP., [1975] 2 SCC 148.
In this case reliance wa.s placed on the American decision in Griswold
v. Connecticut, 38 US 479, 510.
(3) The right against solitary confinement. Sunil Batra v. Delhi
Administration, [1978] 4 sec 494, 545. D
(4) The right against bar fetters. Charles Sabra} v. Supdt. Central
Jail, [ 1978] 4 sec 104.
(5) The right to legal aid. MH. Hoskot v. State of Maharashtra,
[1978] 3 sec 544. E
(6) The right to speedy trial. Hussamara Khatoon v. Home Secretary,
State of Bihar, [1980] SCC 81.
(7) The right against handcuffing. Prem Shankar Shukla v. Delhi
Administration, [1980] 1 SCC 526.
F
(8) The right against delayed execution. T. V. Vatheeswaran v. State
of T.N., [1983] 2 sec 68.
(9) The right against custodial violence. Sheela Barse v. State of
Maharashtra, [1983] 2 SCC 96.
G
(10) The right against public hanging. A.G. of India v. Lachma Devi,
[1989] Supp. 1 sec 264.
(11) Doctor's assistance, Parmanand Batra v. Union of India, (1989)
4 sec 2s6.
H
1178 SUPREME COURT REPORTS [2003] 2 S.C.R.
A (12) Shelter Shantistar Builders v. NK. Totame, [ 1990] I SCC 520. ''
Further, learned senior counsel Mr. Sachhar referred to the following
-
decisions of this Court giving meaning to the phrase "freedom of speech and
expression" :-
B "(!) Romesh Thappar v. State of Madras, AIR (1950) SC · 24.
Freedom of speech and expression includes freedom of pror agation
of ideas which is ensured by freedom of circulation. !Head note (ii)]
(2) Brij Bhushan and Anr. v. The State of Delhi, AIR (195) ~C 129.
c Pre-censorship of a journal is restriction on the liberty »f press.
(3) Hamdard Dawakhana and Anr. etc. v. Union of India, AU (1960)
SC 554
Advertisements meant for propagation of ideas or furthc :ranee of
literature or human thought is a part of Freedom of Sp :ech and
D
Expression.
(4) Sakal Papers (P) Ltd and Ors. etc. v. Union of India, AIR (1962)
SC 305.
Freedom of Speech and Expression carries with it th: right to
E publish and circulate one's ideas, opinions and view: ..
(5) Bennett Coleman and Co. and Ors. etc. v. Union of lndia and
Ors., [1972] 2 SCC 788.
Freedom of Press means right of citizens to speak, p; iblish and
express their views as well as right of people to reaa (Para 45)
F
(6) Indian Express Newspapers (Bombay) (P) Ltd. and On. v. Union
of India and Ors., [1985] I SCC 641.
"Freedom of expression, as learned writers have ob: erved, has
four broad social purposes to serve : (I) it helps an individual
G to attain self fulfilment, (ii) it assists in the discove ·y of truth,
(iii) it strengthens the capacity of an individual in p 1rticipating
in decision-making and (iv) it provides a mechanim by which
it would be possible to establish a reasonable balan :e between
stability and social change."
H (7) Odyssey Communications P. Ltd. v. Lokvidayan Sanrhatana and
PEOPLE'S UNION FOR CIVIL LIBERTIE~ (PUCL) v. U.0.1. [SHAH, J.] 1179
Ors., [1988) 3 SCC 410. A
Freedom of Speech and Expression includes right of citizens to
exhibit film on doordarshan.
(8) S. Rangarajan. v. P. Jagjivan Ram and Ors., [1989) 2 SCC 574.
Freedom of Speech and Expression means the right to express B
one's opinion by words of mouth, writing, printing, picture or
any other manner. It would thus include the freedom of
communication and the right to propagate or publish opinions.
(9) LJC v. Mannubhai D. Shah, [1992] 3 SCC 637.
Freedom of speech and expression is a natural right which a C
human being acquires by birth. It is, therefore, a basic human
right (Art. 19 of Universal Declaration of Human Rights relied
on). Every citizen, therefore, has a right to air his or her views
through the printing and/or electronic media or through any
communication method.
D
(IO) Secy. Ministry of I11formation and Broadcasting, Govt. of India
and Ors. v. Cricket Association of Bengal and Ors., [199 5] 2
sec 161.
"The right to freedom of speech and expression includes the
right to receive and impart information. For ensuring the free E
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 F
judgment on all issues touching them."
(I I) SP. Gupta v. Union of India and Anr., [1981) Suppl. SCC 87
at 273.
Right to know is implicit in right of free speech and expression.
Disclosure of information regarding functioning of the G
government must be the rule.
(12) State of U.P. v. Raj Narain and Ors., [1975] 4 SCC 428.
Freedom of speech and expression includes the right to know
every public act, everything that is done in a public way, by H
1180 SUPREME COURT REPORTS [2003] ! S.C.R.
A their public functionaries.
{13) Dinesh Trivedi, MP and Ors. v. Union of India and Ors., (1997]
4SCC306. •
Freedom of speech and expression includes right of the citizens
B to know about the affairs of the Government. ''
There are many other judgments which are not required to be n iterated
in this judgment. All these developments of law giving meaning to freedom
of speech and expression or personal liberly are not required to be re-
considered nor there could be legislation >O as to nullify such interr relation
C except as provided under the exceptions to Fundamental Rights.
Learned counsel for the respondents relied upon R Rajagopa/ alias R.R.
Gopa/ and Anr. v. State of TN. and Ors., (1994] 6 SCC 632 and stbmitted
that in the said case the Court observed that right to privacy is not enu nerated
as fundamental right in our Constitution but has been inferred from Article
D 21. Jn that case, reliance was placed on Kharak Singh v. State of U.P. [1994]
I SCR 332, Gobind v. State of MP., (1975] 2 SCC 148 and other d!cisions
of English and American Courts and thereafter, the Court held that pe:itioners
have a right to publish what they alleged to be a life story autobiog1 aphy of
Auto Shankar in so far as it appears from the public records, even without
E his consent or authorisation. But if they go beyond that and publish his life
story, they may be invading his right to privacy for the conseqm nces in
accordance with law. For this purpose, the Court held that a citizrn has a
right to safeguard the privacy of his own, his family, marriage, pro< reation,
motherhood, child-bearing and education among other matters. N me can
publish anything concerning the above matters without his consent-whether
F truthful or otherwise and whether laudatory or critical. Position may, however,
be different, if a person voluntarily thrusts himself into contro1 ersy or
voluntarily invites or raises a controversy. The Court also pointec' out an
exception namely:-
"This is for the reason that once a matter becomes a n tatter of
G public record, the right to privacy no longer subsists and it I1ecomes
a legitimate subject for comment by press and media among others.
We are, however, of the opinion that in the interests of decency
[Article 19(2)] an exception must be carved out to this rult, viz., a
female who is the victim of a sexual assault, kidnap abduc1 ion or a
like offence should not further be subjected to the indi.gnit { of her
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.O.l. [SHAH, J] 1181
name and the incident being published in press/media. A
From the aforesaid observations learned Solicitor General Mr. Raval
and learned senior counsel Mr. Jaitley contended that rights which are
derivatives would be subject to reasonable restriction. Secondly, it was sought
to be contended that by insisting for declaration of assets of a candidate, right
to privacy is affected. In our view, the aforesaid decision nowhere supports B
the said contention. This Court only considered - to what extent a citizen
would have right to privacy under Article 21. The court itself has carved out
the exceptions and restrictions on absolute right of privacy. Further, by
declaration of a fact l;Vhich is a matter of public record that a candidates was
involved in various criminal cases, there is no question of infringement of C
any right of privacy. Similarly, with regard to the declaration of assets also,
a person having assets or income is normally required to disclose the same
under the Income Tax Act or such similar fiscal legislation. Not only this, but
once a person becomes a candidate to acquire public office, such declaration
would not affect his right of privacy. This is the necessity of the day because
of statutory provisions of controlling wide spread corrupt practices as D
repeatedly pointed out by all concerned including various reports of Law
Commission and other Committees as stated above.
Even the Prime Minister of India in one of his Speeches has observed
to the same effect. This has been reproduced in B.R. Kapur's case (supra) by
Pattanaik, J., (as he then was) (in Para 74) as under:- E
" ...... Mr. Diwan in course of his arguments, had raised some
submissions on the subject-"Criminalisation of Politics" and
participation of criminals in the electoral process as candidates and in
that connection, he had brought to our notice the order of the Election
Commission of India dated 28.8. I 997 ........ -"Whither F
Accountability", published in The Pioneer. Shri Atal Behari Vajpayee
had called for a national debate on all the possible alternatives for
-· systematic changes to cleanse our democratic governing system of its
present mess. He has expressed his dissatisfaction that neither
Parliament nor the State Vidhan Sabhas are doing, with any degree G
of competence or commitment, what they are primarily meant to do:
legislative function. Accordingly to him, barring exceptions, those
who get elected to these democratic institutions are neither trained,
formally or informally, in law making nor do they seem to have an
inclination to develop the necessary knowledge and competence in
their profession. He has further indicated that those individuals in H
1182 SUPREME COURT REPORTS [2003] '.'. S.C.R.
A society who are generally interested in serving the electo1 ate and
perfoming legislative functions are finding it increasingly difficult to
succeed in today's electoral system and the electoral system i'GS been
almost totally subverted by money power, muscle power l nd vole
bank considerations of castes and communities. Shri Vajpayee also
had indicated that the corruption in the governing structJre has,
B therefore, corroded the very core of elective democracy. A :cording
to him, the ce11ainty of scope of corruption in the governing ;tructure
has heightened opportunism and unscrupulousness among political
parties, causing them to marry and divorce one another at \ 1ill, seek
opportunistic alliances and coalit1un often without the popular mandate.
c Yet they capture and survive in power due to inherent s: 1stemalic
flows. He further stated that casteism, corruption and politicisation
have eroded the integrity and efficacy of our civil service structure
also. The mainfeslos, policies, programmes of the politicul parties
haye lost meaning in the present system of governance due 10 lack of
accountability. "
D
Further, this Court while dealing with the election expenses observed
in Common Cause v. Union of India and Ors., [ 1996] 2 SCC 752 observed
thus:-
"18 ... Flags go up, walls are painted and hundreds of thc.usands of
E loudspeakers playout the loud exhortations and extravagant promises.
VIPs and VVIPs come and go, some of them in helicopte ·s and air-
taxies. The political parties in their quest for power spend more than
one thousand crore of rupees on the General Election (Parliament
alone,) yet nobody accounts for the bulk of the money so spent and
there is no accountability anywhere. Nobody disclose the source of
F
the money. There are no proper accounts and no audit. F ,.om where
doe.s the money come no body know. In a democracy wt· ere rule of
law prevails this type of naked display of black money, t y violating
the mandatory provisions of law, cannot be permitted."
G To combat this naked display of unaccounted/black me ney by the
candidate, declaration of assets is likely to have check of 1iolation on
the provisions of the Act and other re.Ievant Acts incluc ing Income
Tax Act.
Further, the doctrine of the Parliamentary sovereignty as t obtains in
H England does not prevail here except to the extent and in the fie ds provided
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCl' v. U.0.1. [SHAH,.!.] 1183
by the Constitution. The entire scheme of the Constitution is such that it A
ensures the sovereignty and integrity of the country as a Republic and the
democratic way of life by parliamentary institutions based on free and fair
elections.
Jn P.V. Narasimha Rao v. State (CBI!SPE) [1998] 4 SCC 626, this
Court observed thus- B
"47 ... Parliamentary democracy is part of the basic structure of
the Constitution. It is settled law that in interpreting the constitutional
provision the Court should adopt a construction which strengthens
the foundational features and basic structure of the Constitution. See
Sub-Committee on Judicial Accountability v. Union of India, [l<i91] C
4 sec 699."
In C. Narayanaswamy v. C.K. Jaffer Sharie/ a;1d Ors. [1994] Supp. 3
SCC 170 the Court observed (in para 22) thus-
" .... .If the call for "purity of elections is not to be reduced to a D
lip service or a slogan, then the persons investing funds, in futherance
of the prospect of the election of a candidate must be identified and
located. The candidate should not be allowed to plead ignorance
about the persons who have made contributions and investments for
the success of the c·andidate concemtd at the election. But this has to E
be taken care of by Parliament.
In T.N. Seshan, CEC of India v. Union of India and Ors., [1995] 4 SCC
611, this Court observed thus-
"I 0. The Preamble of our Constitution proclaims that we are a F
Democratic Republic Democracy being the basic feature of our
constitutional set-up. There can. be no two opinions that free and fair
elections to our legislative bodies alone would guarantee the growth
of a healthy democracy in the country."
As observed in Kesavananda Bharati's case (supra), the fundamental G
rights themselves have no fixed content and it is also to be stated that the
attempt of the Court should be to expand the reach and ambit of the
fundamental rights. The Constitution is required to be kept young energetic
and alive. In this view of the matter, the contention raised by the learned
- counsel for the respondents, that as the phrase 'freedom of speech and
expression" is given the meaning to include citizens right to know the H
1184 SUPREME COURT REPORTS [2003) 2 S. C.R.
A antecedents of the candidates contesting election of MP or MLA, sucb rights
could be set at naught by legislature, requires to be rejected.
Right To Vote Is Statutory Right:-
Learned counsel for the respondents vehemently submitted that :ight to
B elect or to be elected is pure and simple statutory right and in the abs ~nee of
statutory provision neither citizen has a right to elect nor has he a rig It to be
elected because such right is neither fundamental right nor a comn on law
right. It is, therefore, submitted that it cannot be held that a voter ias any
fundamental right of knowing the antecedents/assets of a candidate co 1testing
the election. Learned Solicitor General Mr. Raval also submitted that on the
c basis of the decision rendered by this Court, the Act is amended by the
impugned Ordinance/Amendment Act. However, for the directions ~hich are
left out, the presumption would be-it is deliberate omission on th1: part of
Legislature and, therefore, there is no question of it being violative of Article
19(l)(a). He submitted that law pertaining to election depends upon ;tatutory
D provisions. Right to vote, elect or to be elected depends upon statutory rights.
For this purpose, he referred to the decision in N.P. Punnuswami v. /, eturning
Officer, (1952] SCR 218, G.N. Narayanswami v. G. Pannerselvam 11nd Ors.,
[1972] 3 SCC 717 and C. Narayanaswamy v. C.K. Jajfer Sharief11nd Ors.,
[1994] Supp. 3 sec 110.
E There cannot be any dispute that the right to vote or stand as a :andidate
for election and decision with regard to violation of election law is 11ot a civil
right but is a creature of statute or special law and would be subj :ct to the
limitations envisaged therein. It is for the Legislature to examine and provide
provisions relating to validity of election and the jurisdiction of the Court
F would be limited in accordance with such law which create sue 1 election
Tribunal.
In the case of N.P. Punnuswami (supra), a person whose nomination
paper was rejected, filed a writ of certiorari, which was dismis~ ed on the
ground thdt it had no jurisdiction to interfere with the order of the Returning
G officer by reason of Article 329(b) of the Constitution.
In the case of G.N. Narayanswami (supra), this Court was d1~aling with
the election petition wherein the issue which was required to be d :cided was
whether the respondent was not qualified to stand for election to the Graduates
constituency on all or any of the grounds set out by the petitioner in paragraphs
H 7 to 9 of the election petition. The Court referred. to Article 171 an j thereafter
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [SHAH, J.] 1185
observed that. the term 'electorate' used in Article 171(3)(a)(b)(c) has neither A
been defined by the Constitution nor in any enactment by Parliament. The
Court thereafter referred to the definition of' elector' given in Section 2( 1)(a)
of the RP Act and held that considering the language as well as the legislative
history of Articles 171 and 173 of the Constitution and Section 6 of the RP
Act, there could be a presumption of deliberate omission of the qualification B
that the representative of the Graduates should also be a graduate.
Similarly, in C. Narayanaswamy's case (supra), the Court was dealing
with the validity of an election of a candidate on the ground of alleged
corrupt practice as provided under Section 123(l)(A) of the Act and in that
context the Court held that right of a person to question the validity of an C
election is dependent on a conditions prescribed in the different Sections of
the Act and the Rules framed thereunder. The Court thereafter held that as
the Act does not provide that any expenditure incurred by a political party
or by any other association or body of persons or any individual other than
the candidate or his election agent, it shall not be deemed to be expenditure
in connection with the election or authorised by a candidate or his election D
agent for the purpose of sub-section (I) of Section 77 read with Rule 90.
Learned counsel further referred to the decisions in Jyoti Basu and Ors.
v. Debi Ghosa/ and Ors., [1982] I SCC 691 wherein similar observation are
made by this Court while decicling election petition:
E
"8. 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. So is the right to be
elected. So is the right to dispute an election. Outside of statute, there
is no right to elect, no right to be elected and no right to dispute an F
election. Statutory creations they are, and therefore, subject to statutory
limitation ....... Concepts familiar to Common Law and Equity must
remain strangers to Election Law unless statutorily embodied. A Court
has no right to resort to them or considerations of alleged policy
because policy in such matters as those, relating to the trial of election
dispute, is what the statute lays down ..... We have already referred to G
the Scheme of the Act. We have noticed the necessity to rid ourselves
of nations based on Common Law or Equity. We see that we must
seek an answer to the question within the four corners of the statute.
What does the Act say?
H
.fl
1186 SUPREME COURT REPORTS (2003] 2 S.C.R.
A 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 voter who is otherwise eligible to
B 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, t~at statutory provision would
C 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 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.
Hence, the aforesaid judgments have no bearing on the question whether a
citizen who is a voter has fundamental right to know antecedents of his
D candidate. It cannot be held that as there is deliberate omission in law, the
right of the voter to know antecedents of the candidates, which is his
fundamental right under Article 19(l)(a), is taken away.
Mr. Raval, learned Solicitor General submitted that an enactment can
E not be struck down on the ground that Court thinks it unjustified. Members
of the Parliami:nt or the Legislature are representatives of the people and are
supposed to know and be aware of what is good and bad for the people. The
Court can not sit in the judgment over their wisdom. He relied upon the
decision rendered by this Court in Dr. P. Na/la Thampy Terah v. Union of
India and Ors., [1985] Suppl. SCC 189, wherein the Court considered the
F validity of Se.ction 77(1) of the Act and referred to report of the Santhanan
Committee on Prevention of Corruption, which says (para 10):
''The public belief in the prevalence of corruption at high political
levels has been strengthen<!d by the manner in which funds are
collected by political parties, especially at the time of elections. Such
G suspicions attach not only to the ruling party but to all parties, as
often the opposition can also support private vested interests as well
as members of the Government party. It is, therefore, essential that
the conduct of political parties should be regulated in this matter by
strict principles in relation to collection of funds and electioneering.
It has to be frankly recognised that political parties cannot be run and
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.I. [SHAH, J.] ] J 87
elections cannot be fought without large funds. But these funds should A
come openly from the supporters or sympathisers of the parties
concerned."
The Court also referred to various decisions and thereafter held thus:-
"13. We have referred to this large data in order to show that the B
influence of big money on·the election process is regarded universally
as an evil of great magnitude. But then, the question which we, as
Judges have lo consider is whether the provision contained in
Explanation l suffers from any constitutional infirmity and,
particularly, whether it violates Article 14. On that question we find
it difficult, reluctantly though, to accept the contention that Explanation C
I offends against the right to equality. Under that provision (i) a
political party or (ii) any other association or body of persons or (iii)
any individual, other than the candidate or his election agent, can
incur expenses, without any limitation whatsoever, in connection with
the election of a candidate. Such expenses are not deemed to be D
expenditure in connection with the election incurred or authorised by
the candidate or by his election agent for the purposes of Section
77(1 ). "
Learned Solicitor General heavily relied upon paragraph 19 wherein
the Court observed thus:- E
"The petitioner is not unjustified in cntictsmg the provtston
contained in Explanation I as diluting the principle of free and fair
elections, which is the cornerstone of any democratic polity. But it is
not for us to lay down policies in molters pertaining to elections. If
the provisions of the law violate the constitution, they have to be F
struck down. We cannot however, negate a law on the ground that we
do not approve of the policy which underlies it."
-- From the aforesaid discussion it is apparent that the Court in that case
was dealing with the validity of the Explanation-I and was deciding whether
it suffered from any Constitutional infirmity, particularly whether it was G
violative of Article 14. The question of Article 19( I)a was not required to be
considered and the Court had not even touched it. At the same time, there
cannot be any dispute that ifthe provisions of the law violate the Constitutional
provisions, they have to be struck down and that is what is required to be
f I
I
done h the present case. It is made clear that no provision is nullified on the H
....-
1188 SUPREME COURT REPORTS [2003) 2 S.CR.
A ground that the Court does not approve the underlying the policy of the
enactment.
As against this, Mr. Sachar, learned senior counsel rightly referred to
a decision rendered by this Court in Bennett Coleman & Co. and Ors. v.
Union of India and Ors., [ 1972] 2 SCC 788, where similar contentions were
B raised and negatived while imposing restrictions by Newspaper Control Order.
The Court's relevant discussion is as under:-
"31Article19(l)(a) provides that all citizens shall have the right to
freedom of speech and expression, Article 19(2) states that nothing in
sub-clause (a) of clause (I) shall affect the operation of any existing
c law, or prevent the State from making any law, insofar as such law
imposes reasonable restrictions on the exercise of the right conferred
by the said sub-clause in the interests of the security of the State,
friendly relations with foreign States, public order, decency or morality,
or in relation to contempt of court, defamation or incitement to an
D offence. Although Article I 9(f)(a) does not mention the freedom of
the Press, it is the settled view of this Court that freedom of speech·
and expression includes ji-eedom of the Press and circulation.
32. In the Express Newspapers case (supra) it is said that there can
be no doubt th.at liberty of the Press is an essential part of the freedom
E of speech and expression guaranteed by Article 19( I)(a). The Press
has the right of free propagation and free circulation without any
previous restraint on publication. If a law were to single ol// the Press
for laying down prohibitive burdens on it that would restrict the
circulation penalise its freedom of choice as to personnel, prevent
newspapers ji-om being started and compel the press to Government
F aid. This would violate Article 19(f)(a) and would fall outside the
protection afforded by Article 19(2).
33. In Sakal Papers case (supra) it is said that the freedom of speech
and expression guaranteed by Article 19( I) gives a citizen the right ·---.,
to propagate and publish his ideas to disseminate them, to circulate
G them either by words of mouth or by writing. This right extends not
merely to the matter it is entitled to circulate but also to the volume
of circulation. In Sakal Papers case (supra) the Newspaper (Price and
Page) Act, 1956 empowered the Government to regulate the prices of
newspapers in relation to their pages and size and to regulate the
H allocation of space for advertisement matter. The Government fixed
·-
\'
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. u.o.r [SHAH. J.] 1189
the maximum number of pages that might be published by a newspaper A
according to the price charged. The Government prescribed the number
of supplements that would be issued. This Court held that the Act and
the Order placed restraints on the freedom of the press to circulate.
This Court also held that the freedom of speech could hot be restricted
for the purpose of regulating the commercial aspects of activities of B
the newspapers''.
The Court also dealt with the contention that newsprint policy did not
directly deal with the fundamental right mentioned in Article 19(l)(a). It was
also contended that regulatory statutes which do not. control the content of
speech but incidentally limit the_ ventured exercise are not regarded as a type C
of law. Any incidental limitation or incidental restriction on freedom of speech
is permissible as the same is essential to the furtherance of important
governmental interest in regulating speech and freedom. The Court negatived
the said contention and in para 39 held thus:-
"39 Mr. Palkhivala said that the tests of pith and s~bstance of the D
subject-matter and of direct and incidental effect of the legislation are
relevant to questions of legislative competence but they are irrelevant
to the question of infringement of fundamental rights. I,n our view
this is a sound and correct approach to interpretation of "legislative
measures and State action in relation to fundamental rights. The true
test is whether .'he effect of the impugned action is to take away or E
abridge fundamental rights. If it be assumed that the direct object of
the law or action has to be direct abridgement of the right of free
speech by the impugned law or action it is to be related to the directness
of effect and not to the directness of the subject matter of the
impeached law or action. The action may have a direct effect on a F
fundamental right although its direct subject matter may be different"
The Court observed in Paragraph 80 at page 823.
" .... The faith in the popular Government rests on the old dictum,
"let the people have the truth and the freedom to discuss it and all
will go well." The liberty of the press remains an "Art of the G
Covenant" in every democracy"
Further, the freedom of speech and expression, as has been held
repeatedly, is basic to and indivisible from a democratic polity. It includes
right to impart and receive information. [Secretary, Min. of Information & H
1190 SUPREME COURT REPORTS [2003] 2 S.C.R.
A Broadcasting (supra)] Restriction to the said right could be only as provided
in Article 19(2). This aspect is also discussed in paragraph 151 (page 270)
thus
"Article 19(1) (a) declares that all citizens shall have the right
of freedom of speech and expression. Clause (2) of Article 19, at the
B same time, provides that nothing in sub-clause (i) of clause (I) shall
affect the operation of any existing law or prevent the State from
making any law in so far as such law imposes reasonable restrictions >
on the exercise of the right conferred by the said sub-clause in the
interests of the sovereignty and integrity of India, the security of the
State, friendly relations with the foreign States, public order, decency
c or morality or in relation to contempt of court, defamation or incitement
of an offence. The grounds upon which reasonable restrictions can be
placed upon the freedom of speech and expression are designed firstly
to ensure that the said right is not exercised in such a manner as to
threaten the sovereignty and integrity of India, security of the State
D friendly relations with the foreign States, public order, decency or
morality. Similarly the said right cannot be so exercised as to amount
to contempt of court defamation or incitement of an offence. Existing
laws providing such restrictions are saved and the state is free to
make laws in future imposing such restrictions. The grounds aforesaid
are conceived in the interest of consuming and maintaining conditions
E in which the said right can meaningfully and peacefully be exercised
by the citizens of this country."
Hence in our view, right of a voter to know biodata of a candidate is
the foundation of democracy. The old dictum- let the people have the truth
and the freedom to discuss it and all will go well with the Government-
F
should prevail.
The true test for deciding the validity of the Act is-whether it takes
away or abridges fundamental rights of the citizens? If there is direct
abridgment of fundamental right of the freedom of speech and expression the
G law would be invalid.
Before parting with the case, there is one aspect which is to be dealt
with. After the judgment in Association for Democratic Ref.~rms case, the
Election Commission gave certain directions in implementation of the
judgment by its Order No.3/ER/2002/JS-JI Vol-Ill. dated 28'h June. 2002. In
(
H the course of arguments, learned Solicitor General as well as learned senior
-4::
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [SHAH, J] J 191
counsel appearing for the intervenor (B.J.P) pointed out that direction no. 4 A
is beyond the competence of the Election Commission and moreover, it is not
necessary to give effect to the judgment of this Court. The said direction
reads as follows:
"Furnishing of any wrong or incomplete information or
suppression of any material information by any candidate in or from B
the said affidavit may also result in the rejection of his nomination
paper where such wrong or incomplete information or suppression of
material information is considered by the returning officer to be a
defect of substantial character apart from inviting penal consequence
under the Indian Penal Code for furnishing wrong information to a C
- public servant or suppression of material facts before him:
Provided that only such information shall be considered to be
wrong or incomplete or amounting to suppression of material
information as is capable of easy verification by the returning officer
by reference to documeniary proof adduced before him in the summary D
inquiry conducted by him at the time of scrutiny of nominations
under section 36(2) of the Representation of the People Act, 1951,
and only the information so verified shall be taken into account by
him for further consideration of the question whether the same is a
defect of substantial· character."
E
While no exception can be taken to the insistence of aff:davit with
regard to the matters specified in the judgment in Association for Democratic
Reforms case, the direction to reject the nomination paper for furnishing
wrong information or concealing material information and providing for a
summary enquiry at the time of scrutiny of the nominations, cannot be justified.
In the case of assets and liabilities, it would be very difficult for the returning F
officer to consider the truth or otherwise of the details furnished with reference
to the documentary proof. Very often, in such matters the documentary proof
may not be clinching and the candidate concerned may be handicapped to
rebut the allegation then and there, If sufficient time is provided, he may be
able to produce' proof to contradict the objector's version. It is true that G
aforesaid directions issued by the Election Commission is not under challenge
but at the same time prima facie it appears that the Election Commission is
required to revise its instructions in the light of directions issued in Associalion
for Democratic Reforms case (supra) and as provided under the Representation
I I
of the People Act and its 3rd Amendment.
H
~
1192 SUPREME COURT REPORTS [2003] 2 S.C.R.
A Finally, after the amendment application was granted, following
additional contentions were raised:-
1. Notice should be issued to be Attorney General as vires of the
Act is challenged.
2.. · Parliament in its wisdom and after due deliberation has amended
B the Act and has also incorporated the directions issued by this
Court in its earlier judgment in Association for Democratic
Reforms (supra) including the direction for declaration of assets
and liabilities of every elected candidate for a House of
Parliament. They are also requir~d to declare assets of their
c spouse and dependent children.
The contention that notice is required to be issued to the Attorney ·-
General as vires of the Act is challenged, is of no substance because 'Union
of India' is party respondent and on its behalf learned Solicitor General is
appearing before the Court. He has forcefully raised the contentions which
D were required to be raised at the time of hearing of the matter. So, service
of notice to learned Attorney General would be nothing but empty fonnality
and the contention is raised for the sake of raising such contention.
Further, we have also reproduced certain recommendations of the
National Commission to Review the Working of the Constitution in the earlier
E paragraphs and have also relied upon the same. In the report, the Commission
has recommended that any person charged with any offence punishable with
imprisonment for a maximum term of five years or more should be disqualified
for being chosen as, or for being, a member of Parliament or Legislature of
a State on the expiry of a period of one year from the date the charges were
F framed against him by the Court in that offence. The Commission has also
recommended that every candidate at the time of election must declare his
assets and liabilities along with those of his close relatives and all candidates
should .be required under law to declare their assets and liabilities by an
affidavit and the details so given by them should be made public. Again, the
legislators should be required under law to submit their returns about their
G liabilities every year and a final statements in this regard at the end of their
term of office. Many such other recommendations are reproduced in earlier
paragraphs.
With regard to the second contention, it has already been dealt with in
H previous paragraphs.
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [SHAH, J.] 1193
What emerges from the above discussion can be summarised thus:- A
(A) The legislature can remove the basis of a decision rendered by
a competent Court thereby rendering that decision ineffective
but the legislature has no power to ask the instrumentalities of
the State to disobey or disregard the decisions given by the
Court. A declaration that an order made by a Court of law is B
void is normally a part of the judicial function. Legislature cannot
declare that decision rendered by the Court is not binding or is
of no effect.
It is true that legislature is entitled to change the law
with retrospective effect which forms the basis of a judicial c
- decision. This exercise of power is subject to constitutional
provision, therefore, it cannot enact a law which is violative of
fundamental right.
(8) Section 33-8 which provides that notwithstanding anything
contained in the judgment of any Court or direction issued by D
the Election Commission, no candidate shall be liable to disclose
or furnish any such information in respect of his election which
is not required to be disclosed or furnished under the Act or the
Rules made thereunder, is on the face of it beyond the legislative
competence, as this Court has held that voter has a fundamental
E
right under Article 19(l)(a) to know the antecedents of a
candidate for various reasons recorded in the earlier judgment
as well as in this judgment.
Amended Act does not wholly cover the directions issued
by Court. On the contrary, it provides that candidate would not F
be buund to furnish certain information as directed by this Court.
(C) The judgment rendered by this Court in Association for
-- Democratic Reforms (supra) has attained finality, therefore, there
is no question of interpreting constitutional provision which calls
for reference under Article 145(3). G
(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
)
i
~ are against the statutory provisions are, on the face of it, without
any substance. In an election petition challenging the validity of
~ H
1194 SUPREME COURT REPORTS (2003] 2 S.C.R.
A an de.;tion of a particular candidate, the statutory provisions '
would govern respective rights of the parties. However, voter's
fundamental right to know 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.
B Members of a democratic society should be sufficiently informed
so that they may cast their votes intelligently in favour of persons f
who are to govern them. Right to vote would meaningless unless
the citizens are well informed about the antecedents of a
candidate. There can be littie doubt that exposure to public gaze
c 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.
D The attempt of the Court should be to expand the reach and
ambit of the fundamental rights by process of judicial
interpretation. During 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
E basis of the judgments rendered by this Court.
In the result, Section 33-B of the Amended Act is held to be illegal,
null and void. However, this judgment would not have any retrospective
effect but would be prospective. Writ petitions stand disposed of accordingly.
F 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(8) of the
G 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
importan.ce and intricacies of the subject-matter and the virgin ground trodden
by this Court in Union of India v. Association for Democratic Reforms,
H (20021 s sec 294 to bring the right to information of the voter within the
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.O.I. [REDD!, J] 1195
sweep of Article 19(1)(a) has impelled me to elucidate and clarify certain A
.., crucial aspects. Hence, this separate opinion .
(I). 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 B
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 C
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 D
guarantee of life and liberty has been very broadly construed by this C.ourt
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 E
attach to this freedom is evident from the fact that reasonable restrictions on
that right could be placed by law only on the limited grounds specified in
Article 19(2), not to speak of inherent limitations of the right.
In due course of time, several species of rights unenumerated in Article
I 9(l)(a) have branched off from the genus of the Article through the proc·ess F
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 UP. v.
-- 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 G
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 inust be responsible for their conduct, there can be but few
secrets. The people of this country have a right to know every public H
1196 SUPREME COURT REPORTS [2003] 2 S.C.R.
A 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 v. Union of India, (1981] Suppl. SCC Page 87
in which this Court dealt with the issue of High Court Judges' transfer.
B 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(l)(a). Therefore, disclosure
C 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:
D "No democratic Government can survive without accountability anct'
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."
E
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(l)(a). The pertinent observations
made by the learned Judges in these two cases were in the context of the
F 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 l 9(l)(a) vis-a-vis the right to information did not directly arise for
consideration in those two landmark decisions, the observations quoted supra
G have certain amount of relevance in evaluating the nature and character of
the right.
Then, we have the decision in Dinesh Trivedi v. Union of India, [ 1997]
4 SCC 306. This Court was confronted with the issue whether background
H papers and investigatory reports which were referred to in Vohra Committee's
....
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [REDD!, J] 1197
Report could be compelled to be made public. The following.observations of A
Ahmadi, C.J. are quite pertinent:-
"In modern Constitutional democracies, it iS' axiomatic that citizens
have a right to know about the affairs of the Government which,
having been elected by them, seeks to formulate sound policies of
governance aimed at their welfare, However, like all other rights, B
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, C
Ministry of I & B v. 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 D
l 9(1)(a) of the Constitution. On this point, Sawant, J. had this tO say at
Paragraph 75-
"The right to impart and receive info[Jnation is a species of the right
of freedom of speech and expression guaranteed by Article l 9(1)(a)
of the Constitution. A citizen has a fundamental right to use the best E
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: F
"The right of fre~ 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 G
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 prfvilege pleaded by the
State in relation to confidential documents relating to public affairs and the H
1198 SUPREME COURT REPORTS [2003] 2 S.C.R.
A 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.
B For the first time in Union of India v. 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 th,e sweep of Article 19(I)(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
C political process of election. In carving out this right, the Court had not
traversed a beaten track but took a fresh path. It must be noted that the right
to information evolved by this Court in the said case is qualitatively different
'
from the right to get information about public affairs or the right to receive
information through the Press and electronic media, though to a certain extent,
D 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
E 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 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
F 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.
G 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( I)(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
H case [U.0.1. i/. Association for Democratic Reforms] was referred to the
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL\ v. U.0.1. [REDD!, J.] ! J99
Constitution Bench as per the mandate of Article 145(3) for the reason that A
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 B
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 ceasons of my own-may not be very different from what the C
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 contt;sting candidate should be regard,!;!d as a part .of the freedom
of expression guaranteed by Article 19(1 )(a). This issue has to be viewed D
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 E
by the people' has to be remembered for ever. In a democratic republic, it is
the will of the people that is paramount and becomes the basis of the authority ·.
of the Government. The will is expressed in periodic elections based on
universal adult suffrage held by means of secret ballot. It is through the ballot .
that the voter expresses his choice or preference for a candidate. "Voting is F
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 v.
- 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 G
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 uf their grievances. They are the focal
point of the wiH and authority of the people at large. The moment they put H
1200 SUPREME COURT REPORTS [2003] 2 S. C.R.
A in papers for contesting the election, they are subjected to public gaze and
public sc~tiny. The character, strength and weakness of the candidate is ----1
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
B 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
C 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
D 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 organiz;ations
vigilant enough to channel the public opinion on right lines will l:>e able to
disseminate the information and thereby enlighten and alert the public at
E 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
F 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
G 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
H will certainly be conducive to fairness in election process and integrity in
PEOPLE'S UNION FOR CIVIL LIBERTIES (P'JCL) v. U.O.I. [REDD!, J.] J20 J
public life. The disclosure of infonnation would facilitate and augment the A
r 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 angie. 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 B
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 lyer's Law
Lexicon (edited by Justice Y.V. Chandrachud). Even a manifestation of an C
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
-.I 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 D
of phrase 'expression', voting can be legitimately n:garded 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 elect;on, as expressed by his ballot (vide 'A Dictionary of Modern Legal
Usage'; 2nd Edition, by Gamer Bryan A). "Opinion expressed, resolution or E
decision carried, by voting" is one of the meanings given to the expression
'vote' in the New Oxford lllustrated Dictionary. It is well settled and it needs
no emphasis that the fundamentaJ 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 F
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 rigbt but right to make choice by means of ballot is G
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 fonn by the Representation of the People Act. The
H
1202 SUPREME COURT REPORTS [2003] 2 S.C.R.
A 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
1
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
B 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 r.ase
['I 952) SCR 2.18 characterized it as a statutory right.
c "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 ~ust be subject to the limitations imposed by it." It was
further elaborated in the following words: t
D "Strictly speaking, ;,t is the sole right of the I.,egisla~ure 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 ana unknown jurisdiction, that special
jurisdiction should be exercised in accordance with the law which
creates it."
E
In Jyoti Basu v. Debi Ghosa/, (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,
F 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 rig,ht 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
G 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
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [REDD!, J.] 1203
the right to vote on fulfillment of requisite criteria and the culmination of that A
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
R 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 B
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 C
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 D
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 E
larger Bench in view of the apparent conflict. As already stated, the factual
matrix and legal issues involved in those cases were different and the view,
we are taking, does not go counter to the actual ratio of the said decisions
rendered by the eminent Judges of this Court.
Reliance has been placed by the learned Solicitor General on the F
Constitution Bench decision in Jamuna Prasad v. Lachhi Ram, (1955] 1 SCR
Page 608. That was a case of special appeal to this Court against the decision
of aa 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 G
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 prescr!bed conditions which must be observed if a citizen wanted H
1204 SUPREME COURT REPORTS [2003] 2 S.C.R.
A 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 .. r
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
B 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
C 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 appearinP' for one of the interveners (B.J.P.)
has advanced the contention that if the right to information is culled out from
Article 19(l)(a) and read as an integral part of that right, it is fraught with
D 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,
E 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
F 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 v.
G New York, (1924) 69 L.Ed. 1138 are very relevant in this context: r
"It is a fundamental principle, long established, that the freedom 'of
speech and of the Press which is secured by the Constitution does not
confer an absolute right to speak or publish, without responsibility,
whatever one may choose, or an unrestricted and unbridle license that
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [REDD!, J] J205
gives immunity for every possible use of language, and prevents the A
punishment of those who abuse this freedom."
Whenever the rare situations of the kind anticipated by the learned
counsel arise, the Const!tution 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). B
II. Sections 33-A & 33-8 of the Representation of People (3rd
Ame~dment) Act, 2002-whether Section 33-A by itself
effectively secures the voter's/citizen's right to informafion-
whether Section 33-8 is unconstitutional?
II. (1 ). Sections 33-A & 33-8 of the Representation of People (3rd
c
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 D
in deviating from the directives given by this Court to the Election Commission
'
in Association of Democratic Reforms case. By virtue of the Representation
of the People (Amendment) Act, 2002 of the only information which a
prospective contestant is required to furnish apai:t 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 E
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 (I) 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 F
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. <J
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 instrnctions 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 H
1206 SUPREME COURT REPORTS (2003) 2 S. C.R. I
I,
A thallenged as ultra vires the Constitution both on the ground that it affects
the fundamental right of the voter/citizen to get adequate infonnation about
the candidate and that the Parliament is incompetent to nullify the judgment
of this Court. 1 shall briefly notice the rival contentions on this crucial issue.
II. (2). Contentions:
B
Petitioners' contention is that the legislation on the subject of disclosure
of particulars of candidates should adopt in entirety the directives issued by
th is Court to the Election Commission in the pre-ordinance period. Any
dilution or deviation of those nonns or directives would necessarily violate
C 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 behalfof Union of India and
one of the interveners is that the freedv.il of legislature in identifying and
evolving the specific areas in which such infonnation should be made public
D 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(l)(a). It is
for the Parliament to decide to what extent and how far the infonnation
should be made available. In auy case, it is submitted that the Court's verdict
E has been duly taken note of by Parliament and certain provisions have been
made to promote the right to infonnation vis-a-vis the contesting candidates.
Section 338 is only a part of this exercise and it does not go counter to
Article 19(l)(a) even though the scope of public disclosures has been limited
to one important aspect only.
F
II. (3). Broad points for consideration
A liberal but not a constricted approach in the matter of disclosure of
infonnation in relation to candidates seeking election is no doubt a desideratum. ...__
The wholesale adoption of the Court's diktats on the various items of
G 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
H important aspects highlighted in the judgment. The question remains to be
PEOPLE'S UNION FOR CIVIL LlBERTIES (PUCL) v. U.0.1. [REDD!, J.] 1207
considered whether in doing so, the Parliament out-stepped its limits and A
enacted a law in violation of the guarantee enshrined in Article 19(l)(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. ls it open to the Parliament to independently view the issue and
fommlate the parameters and contents of disclosure, though it has the effect B
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
c
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 D
candidate and that right is a part of the fundamental right under Article
I 9(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." E
It was then pointed out that the information about the candidate to be
selected is essential as it would be conducive to transparency and purity in
the process of election. The next question considered was how best to enforce
that right. The Court having noticed that there was void in the field in the
sense that it was not covered by any legislative provision, gave directions to F
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 G
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 H
1208 5UPREME COURT REPORTS [2003] 2 S.C.R.
A 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
B
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
· saine 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."
c
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
D 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
E 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 Ele~tion Commission, which is endowed with 'residuary power' to
F 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
G law was made by legislature and in that sense 'pro tempore' in nature. The
five directives cannot be considered to be rigid theorems-inflexible and
immutable, but only reflect the perception and tentative thinking of the Court
at a point of time when the legislature did not address itself to the question .
. When the. Parliament, in the aftermath of the verdict of this Court,
H deliberated and thought it fit to secure \he right to information to a citizen
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.OJ. [REDD!, J.] \ 209
only to a limited extent (having a bearing on criminal antecedents), a fresh A
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
infonnation .which is a corollary to the fm1damental 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. B
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 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 C
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 contes~ing candidate, should be
disclosed by a prospective candidate and that the failure to provide for it by
h1w would infringe the fundamental right under Article 19(1 )(a)? The D
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 infonnation, it
should not be stretched too far. At the same time, the essence and substratum E
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-a-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 F
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 G
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 H
1210 SUPREME COURT REPORTS (2003) 2 S.C.R.
A or omits to provide for disclosure on certain essential points, the law would
then fail to pass the muster of Article 19(l)(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
B extent, if not to the fullest extent on details of concern to the voters and
citizens at large. While enacting the legislation, the legislature has to ensure
that the fundamental right to know about the candidate is reasonably secured
and information which is crucial, by any objective standards, is not denied.
It is for the Constitutional Court in exercise of its judicial review power to
judge whether the areas of disclosure carved out by the Legislature are
C 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
D 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
E adequate to secure the right of infonnation to the voter so as to facilitate hini
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
F 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.
Ill. Section 33-B is unconstitutional
G JI I. ( 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
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [REDD!, l.J 1211
secure information about a contesting candidate is recognized as an integral A
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 B
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, C
in my view, impermissible. It must be remembered that the concept of freedom
of spe~ch and expression does not remain static. The felt necessities of the
times t'oupled 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 D
rather than being frozen and stagnated; but the mandate of Section 33B
prefaced by the non obstante clause impedes th~ 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 supervi~ing the election process will have to sit back w,ith E
a sense of helplessness inspite of the pressing need for insisting on additional
information. Even the Court may at times feel handicapped in taking necessary
remedial steps to enforce the right to information. In my view, the legislative
injunction curtailing the nature of information to be furnished by the contesting
candidates only to the specific matters provided for by the legislation and
---- nothing more would emasculate the fundamental right to freedom of expression F
of which the right to information is a part. The very objective of recognizing
the right to information ~s part of the fundamental right under Article 19(1)(a)
in order to ensure free and fair elections would be frustrated if the ban
prescribed by Section 33 B is taken to its logical effect.
Ill. (2) Impugned legislation fails to effectuate right to information on
G
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 H
1212 SUPREME COURT REPORTS [2003] 2 S.C.R.
A 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
B hereinafter, the Parliament has unduly restricted the ambit of information
which the citizens should have and thereby impinged on the guarantee·
enshrined in Article I 9(l)(a).
111. . (3) How far the principle that the Legislature cannot encroach
upon the judicial sphere applies.
c 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
.D 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
E 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,
F 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
G 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 cours~,
in doing so, the decision of this Court should be given due weight and there
H cannot be marked departure from the items of information considered essential
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.O.L [REDD!, J.] 1213
by this Court to effectuate the fundamental right to information. Viewed in A
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 I 9(l)(a), as interpreted . B
by this Court.
JV. Right to information with reference to specific aspects:
I sh"'ll now discuss the specifics of the problem. With a view to promote
the right to information,, this Court gave certain directives to the Election C
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 bro:1dly on three points, namely, (i) criminal record (ii) assets and
liabilities and (iii) educational qualification. The third amendment to R.P. Act
which w;1~ preceded by an Ordinance provided for disclosure of information.
How far the third amendment to the Representation of the People Act, 2002 D
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 E
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 conv.icted/ acquitted/discharged of any criminal case in the past-
if any, whether he is punished with imprisonment or fine and (ii) prior to six F
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 Co.urt of
law." As regards the second directive, the Parliament has substantially
proceeded on the same lines and made it obligatory to the candidate to G
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 b.een 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, H
1214 SUPREME COURT REPORTS [2003] 2 S.C.R.
A 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,
B 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( 1)(a), cannot be truncated in the
manner in which it has been done. Clause (i) of Section 33(A)(l) therefore
C falls short of the avowed goal to effectuate the right of information on a vital
aspect. Cases in which cognizance has been taken should therefore be
comprehended within the area of information accessible to the voters/citizens,
in addition to what is provided for in Clause (i) of Section 33A.
Coming to Clause (ii) of Section 33A( 1), the Parliament broadly followed
· D 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.
E 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
F such as holdi_ng 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
G scrupulouslYfollowed. 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
H able to judge the candidate better. On the other hand, such information in
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCLl v. U.O.L [REDD!, J] J215
general has the potential to send misleading signals about the honesty and A
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 B
offences referred to in sub-Sections (I) 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 C
have been excluded from the ambit of Clause (ii) of Section 33A.
JV. (2). Assets and liabilities
Disclosure of assets and liabilities is .another thorny issue. If the right D
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 a.nd 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 E
by this Court in the case of P. V. Narasimha Rao v. 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 F
the name of family members viz., spouse and dependent children. At the time
-- when the candidate seeks re-election, the citizens/voters can have a comparative
idea of the assets before and after the election so as to assess whether the
high public office had possibly been used for self-aggrandizement. Incidentally,
the disclosure will serve as a check against misuse of power for making G
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 H
1216 SUPREME COURT REPORTS [2003] 2 S.C.R.
A of the important aspects to which extensive reference has been made in
Association for Deinocraiic Reforms case. The Court did consider it, after an
elaborate discussion, as a vital piece of infonnation 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 infonnation from the
B contesting candidates and such infonnation 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
C 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 infonnation 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 finnly embedded in our
Constitution will be distorted. I cannot also share the view that this infonnation
D 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, 195 I 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
E seeking infonnation 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-a-vis right to
infonnation only.
It has been contended with much force that the right to infonnation
p 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 2 I. After giving
anxious consideration to this argument, I am unable to uphold the same. In --..t-
this context, I would like to recall the apt words of Mathew J. in Gobind v.
G State of M.P., [1975] 2 sec 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 applied).
H
I:>-
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v U.O.I. [REDD!, J.] 1217
"·- ...... It was then said succinctly: A
"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
s;ompelling State interest test. Then the question ~ould be whether a
State interest is of such paramount importance as would justify an
infringement of the right." B
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 C
the essence and s~ope 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 D
' 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 E
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. F
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 oflooking at the problem. More important,
it is to be noted that the Parliament itself accepted in principle that not only
t~e assets of the elected candidates but also his or her spouse and dependent G
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 pr.ovision has been made for giving
access to the details filed with the presiding officer uf the House. By doing H
1218 SUPREME COURT REPORTS (2003] 2 S.C.R.
A 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
B guaranteed by Article 19(I)(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 informati;m and the
freedom of expression of the voters/citizens.
C IV. (3). Educational qualifications
The last item left for discussion is about educational qualifications. Jn
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
D qualifications, it cannot be said that the Parliament violated the guarantee of
Article 19(1)(a). Consistent with the principle ofadult 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 inclined to
think that the information relating to educational qualifications of contesting
candidates does not serve any useful purpose in the present context and
E 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
F 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 :he 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
G duty and the sense of concern to the welfare of the people. These characteristics
are not the mor.opoly 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
H qualifications in specialized field may prove useful to the society, but it is
PEOPLE'S UNION FOR CIVIL LIBERTIES (PTJCL) v. TJ.0.1. [REDD!, J.] J 2 J9
natural to expect that such. candidates would voluntarily come forward with A
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 B
of the candidates.
V. Conclusions:
Finally, the summary of my conclusions:
c
I. 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 infonnation about public affairs or the right to D
receive information through the Press and electronic media,
though, to a certain extent, there may be overlapping.
2. Tf1t 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 E
is a facet of tile fundamental right enshrined in Article 19( I)(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 lhis Court in Union of India v.
Association for Democratic Reforms, [2002] 5 SCC 294 were F
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 G
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 H
approach in examining the legislation providing for right to
~
1220 SUPREME COURT REPORTS [2003] 2 S.C.R.
A information and laying down the parameters of that right.
5. Section 338 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
B 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
c 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.
D 7. The provision made in Section 75A regarding declaration of
assets and liabilities of the elected candidates to the Speaker or
the Chairmi\n 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
E 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 vi0lation of
guarantee under Article 19(1)(a).
8. The failure to provide for disclosure of educational qualification
F 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
G disclosure of assets and liabilities will stil! 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.
H
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1. [DHARMADHIKARI, J] ) 22 J
Accordingly, the writ petitions stand disposed of without costs. A
DHARMADHIKARI J. I have carefully gone through the well
considered separate opinions of Brothers MB Shah J. and P.V. Reddy JJ.
Both the learned judges have come to a common conclusion that Section 33B
inserted in the Representation of People Act, 1951 by Amendment Ordinance
4 of 2002, which on repeal is succeeded by 3rd Amendment Act of 2002, B
is liable to be declared invalid being violative of Article I 9(l)(a) of the
Constitution.
I am in respectful agreement with the above conclusion reached in
common by both the learned brothers. I W?uld, however, like to supplement C
the above conclusion.
The reports of the advisory Commission set up one after the other by
the Government to which a reference has been made by Brother Shah J.,
highlight the present political scenario where money-power and muscle-power
have substantially polluted and perverted the democratic processes in India. D
To control the ill-effects of money -power and muscle-power the Commissions
recommend that election system should be overhauled and drastically changed
lest democracy would become a teasing illusion to common citizens of this
country. Not only a half-hearted attempt in the direction of reform of the
election system is to be taken, as has been done by the present legislation by
amending some provisions of the Act here and there, but a much improved E
election system is required to be evolved to make the election process both
transparent and accountable so that in influence of tainted money and physical
force of criminals do not make democracy a farce-Citizen's fundamental
'right of information' should be recognised and fully effectuated. This freedom
of a citizen to participate and choose a candidate at an election is distinct F
from exercise of his right as a voter which is to be regulated by statutory law
on the election like the R.P. Act.
Making of law for election reform is undoubtedly a subject exclusively
of legislature. Based on the decision of this Court in the case of Association
for Democratic Reform (supra) and the directions made therein to the Election G
Commission, the Amendment Act under consideration has made an attempt
to fill the void in law but the void has not been filled fully and does not
satisfy the requirements for exercise of fundamental freedom of citizen to
participate in election as a well informed voter.
Democracy based on 'Free and fair elections' is considered as basic H
1222 SUPREME COURT REPORTS [2003] 2 S.C.R.
A feature of the Constitution in the case of Keshwananda Bharati supra. 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
Association for Democratic Reforms (supra) obligates this Court as an
important organ in constitutional process to intervene.
B Jn my ·opinion, this Court is obliged by the Constitution to inter1v'ene
because the legislative field, even after the passing of the Ordinance and the
Amendment Act, leaves a vacuum. This Court in the case of Association for
Democratic Reforms (supra) has determined the ambit of fundamental 'right
of information' to a voter. The law ~it stands today after amendment, is
C 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 Association for Democratic
Reforms (supra).
With these words, I agree with conclusions (A) to (E) in the opinion of
D Brother Shah J. and conclusion Nos. (I), (2), (4), (5), (6), (7), & (9) in the
opinion of Brother P.V. Reddi J.
With utmost respect, I am unable to agree with conclusion Nos. (3) &
(8) in the opinion of Brother P.V. Reddy J., as on those aspects, I have
expressed my respectful agreement with Brother Shah J.
N.J. Petitions disposed of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Right to information"Sign in to search