2003 (3) TMI 669 - SC - Indian Laws

Candidates contesting for elections to the Parliament or State Legislature Held that - Securing information on the basic details concerning the candidates contesting for elections to the Parliament or State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the Press and electronic media, though, to a certain extent, there may be overlapping. The right to vote at the elections to the House of people or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter. The directives given by this Court in Union of India Vs. Association for Democratic Reforms 2002 (5) TMI 820 - SUPREME COURT OF INDIA were intended to operate only till the law was made by the Legislature and in that sense pro tempore in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced. The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right. Section 33B inserted by the Representation of People (3rd Amendment) Act, 2002 does not pass the test of constitutionality firstly for the reason that it imposes blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate. parameters of that right. The right to information provided for by the Parliament under Section 33A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by Court from the ambit of disclosure. parameters of that right. The provision made in Section 75A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of spouse or dependent children, the Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Article 19(1)(a). parameters of that right. The failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression. parameters of that right. The Election Commission has to issue revised instructions to ensure implementation of Section 33A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission s orders related to disclosure of assets and liabilities will still hold good and continue to be operative. However, direction No.4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced. parameters of that right. Accordingly, the writ petitions stand disposed of without costs.

Issues Involved
1. Freedom of expression and right to information.
2. Right to information in the context of the voter's right to know the details of contesting candidates.
3. Right to vote as a Constitutional right.
4. Sections 33-A and 33-B of the Representation of People (3rd Amendment) Act, 2002.
5. Constitutionality of Section 33-B.
6. Right to information with reference to specific aspects: criminal background, assets and liabilities, educational qualifications.

Detailed Analysis

I. Freedom of Expression and Right to Information
The judgment emphasizes that freedom of speech and expression under Article 19(1)(a) of the Constitution includes the right to receive and impart information. This right has been expanded to include the right to know about the candidates contesting elections, as established in the landmark cases of State of U.P. Vs. Raj Narain and S.P. Gupta Vs. Union of India. The court affirmed that the right to information is an integral part of the freedom of speech and expression, enabling voters to make informed choices.

II. Right to Information in the Context of Voter's Right to Know
The judgment in Union of India Vs. Association for Democratic Reforms established that voters have the right to know about the candidates standing for election, bringing this right within the ambit of Article 19(1)(a). This right is qualitatively different from the general right to information about public affairs. The court highlighted that the state must enforce this right through legislation or orders.

III. Right to Vote as a Constitutional Right
The right to vote is recognized as a constitutional right under Article 326, though not a fundamental right. However, the act of voting is considered a form of expression, thus falling within the realm of Article 19(1)(a). The court clarified that while the initial right to vote is statutory, the act of casting a vote is an expression of opinion protected under Article 19(1)(a).

IV. Sections 33-A and 33-B of the Representation of People (3rd Amendment) Act, 2002
The court examined whether Sections 33-A and 33-B of the Representation of People Act adequately secure the voter's right to information. Section 33-A mandates disclosure of certain criminal records by candidates, while Section 33-B restricts further disclosures beyond what is specified in the Act. The court found that Section 33-B effectively nullifies the broader directives given by the Election Commission pursuant to the court's judgment in the Association for Democratic Reforms case.

V. Constitutionality of Section 33-B
The court concluded that Section 33-B is unconstitutional for two main reasons:
1. It imposes a blanket ban on the dissemination of information beyond what is specified, irrespective of future needs and exigencies.
2. The information mandated for disclosure under Section 33-A is insufficient to fulfill the right to information as part of the freedom of expression.

VI. Right to Information with Reference to Specific Aspects
1. Criminal Background: The court found that while Section 33-A's provisions regarding pending criminal cases are generally adequate, it should also include cases where cognizance has been taken by the court, not just those where charges have been framed.

2. Assets and Liabilities: The court emphasized the importance of disclosing assets and liabilities of candidates and their spouses to promote transparency and integrity in public life. The failure to include such disclosures at the time of nomination violates the right to information under Article 19(1)(a).

3. Educational Qualifications: The court held that the failure to mandate disclosure of educational qualifications does not infringe on the freedom of expression, as it is not essential information for voters to make an informed choice.

Conclusions
1. The right to information about candidates is an integral part of Article 19(1)(a).
2. The right to vote is a constitutional right, and the act of voting is a form of expression protected under Article 19(1)(a).
3. The directives given by the court in the Association for Democratic Reforms case were temporary until legislation was enacted.
4. Section 33-B is unconstitutional for restricting the scope of information disclosure.
5. Section 33-A's provisions on criminal records are generally adequate but should include cases where cognizance has been taken.
6. The failure to mandate disclosure of assets and liabilities at the time of nomination violates Article 19(1)(a).
7. The failure to mandate disclosure of educational qualifications does not infringe on the freedom of expression.
8. The Election Commission must issue revised instructions to ensure compliance with Section 33-A and continue enforcing orders related to asset and liability disclosures.

← Previous Next →