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TMI Blog2002 (5) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... changes under Rule 4 of the Conduct of Election Rules, 1961. It has been pointed out that Law Commission of India had, at the request of Government of India, undertaken comprehensive study of the measures required to expedite hearing of election petitions and to have a thorough review of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") so as to make the electoral process more fair, transparent and equitable and to reduce the distortions and evils that have crept into the Indian electoral system and to identify the areas where the legal provisions required strengthening and improvement. It is pointed out that Law Commission has made recommendation for debarring a candidate from contesting an election if charges have been framed against him by a Court in respect of certain offences and necessity for a candidate seeking to contest election to furnish details regarding criminal cases, if any, pending against him. It has also suggested that true and correct statement of assets owned by the candidate, his/her spouse and dependant relations should also be disclosed. Petitioner has also referred Para 6.2 of the report of the Vohra Committee of the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es have been particularly affected; (iv) The Bombay bomb blast case and the communal riots in Surat and Ahmedabad have demonstrated how the India underworld has been exploited by the Pak ISI and the latter's network in UAE to cause sabotage subversion and communal tension in various parts of the country. The investigations into the Bombay bomb blast cases have revealed expensive linkages of the underworld in the various governmental agencies, political circles, business sector and the film world." It is also contended that despite the Reports of the Law Commission and Vohra Committee, successive governments have failed to take any action and, therefore, petition was filed for implementation of the said reports and for a direction to the Election Commission to make mandatory for every candidate to provide information by amending Form 2-A to 2-E prescribed under the Conduct of Election Rules, 1961. After hearing the parties, the High Court by judgment and order dated 2nd November, 2000, held that it is the function of the Parliament to make necessary amendments in the Representation of the People Act, 1951 or the Election Rules and, therefore, Court cannot pass any order, as prayed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an elected representative as MP/MLA; (b) to bring in such measures which provide for declaration by the candidate contesting election whether any charge in respect of any offence has been framed against him/her; and (c) to frame such guidelines under Article 141 of the Constitution by taking into consideration 170th Report of Law Commission of India. SUBMISSIONS: We have heard the learned counsel for the parties at length. Mr. Harish N. Salve, learned Solicitor General appearing for Union of India submitted that till suitable amendments are made in the Act and Rules thereunder, the High Court should not have given any direction to the Election Commission. He referred to various Sections of the Act and submitted that Section 8 provides for disqualification on conviction for certain offences and Section 8A provides for disqualification on ground of corrupt practices. Section 32 provides nomination of candidate for election if he is qualified to be chosen to fill that seat under the provisions of the Constitution and the Act or under the provisions of the Government of Union Territories Act, 1963. Thereafter, elaborate procedure is prescribed for presentation of nomination paper and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate balance is required to be maintained with regard to the jurisdiction of the Parliament and that of Courts and once the Parliament has not amended the Act or the Rules despite the recommendation made by the Law Commission or the report submitted by the Vohra Committee, there was no question of giving any direction by the High Court to the Election Commission. Mr. K.K. Venugopal, learned senior counsel appearing on behalf of Election Commission exhaustively referred to the counter affidavit filed on behalf of Election Commission. At this stage, we would refer to some part from the said affidavit. It is stated that issue of 'persons with criminal background' contesting election has been engaging the attention of the Election Commission of India for quite some time; even Parliament in the debates on 50 years of independence and the resolution passed in its special Session in August, 1997 had shown a great concern about the increasing criminalisation of politics; it is widely believed that there is criminal nexus between the political parties and anti-social elements which is leading to criminalisation of politics; the criminals themselves are now joining election fray and often ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in respect of the charges framed in any such cases; (iii) whether the candidate is an income tax and/or wealth tax assessee and has been paying his tax(es) and filing his returns regularly, wherever he is liable, and if so, the financial year for which the last income tax/wealth tax return has been filed; (iv) the liabilities of the candidate, his/her spouse and minor children; that is to say, over-dues to any public financial institutions, any government dues, and charges on his/her properties; (v) the educational qualifications of the candidate. II. The information by each candidate in respect of all the foregoing aspects shall be furnished by the candidate in a format to be prescribed by the Election Commission and shall be supported by a duly sworn affidavit, making him responsible for the correctness of the information so furnished and liable for any false statement. III. The information so furnished by each candidate in the prescribed format and supported by a duly sworn affidavit shall be disseminated by the Election Commission, through the respective Returning Officers, by displaying the same on the notice board of the Returning Officer and making the copies ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imary question considered waswhether it was within the domain of judicial review and it could be an effective instrument for activating the investigating process which is under the control of the executive? While discussing the powers of this Court, it was observed: "The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality. There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role." [Emphasis supplied] In paragraph 51, the Court pointed out previous precedents for exercise of such power: "In exercise of the powers of this Court under Article 32 read with Article 142, guidelines and directions have been issued in a large number of cases and a brief refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) to administer the law impartially among persons and between persons and the State." Thus, an exercise of this kind by the court is now a wellsettled practice which has taken firm roots in our constitutional jurisprudence. This exercise is essential to fill the void in the absence of suitable legislation to cover the field." Ms. Kamini Jaiswal, learned counsel appearing on behalf of respondents in support of the decision rendered by the High Court referred to the decision in Kihoto Hollohan v. Zachillhu and Others [1992 Supp (2) SCC 651] wherein while considering the validity of the Tenth Schedule of the Constitution, the Court observed "democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provisions for resolution of election disputes as also adjudication of disputes relating to subsequent dis-qualifications by an independent authority". She, therefore, contended that for free and fair elections and for survival of democracy, entire history, background and the antecedents of the candidate are required to be disclosed to the voters so that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct of all elections' to Parliament and to the Legislature of every State vests in Election Commission. The phrase 'conduct of elections' is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections. Question No.1 Whether Election Commission is empowered to issue directions as ordered by the High Court? For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, may be illiterate, so that they can decide intelligently, whom to vote? In our opinion, the decision of even illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizensvoters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. 'The right of election is the very essence of the constitution' (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more." Thereafter, the Court dealt with the scope of Article 324 and observed (in para 39) thus: ".Article 324, in our view, operates in areas left unoccupied by legislation and the words 'superintendence, direction and control, as well as 'conduct of all elections', are the broadest terms.." The Court further held: "Our conclusion on this limb of the contention is that Article 324 is wide enough to supplement the powers under the Act, as here, but subject to the several conditions on its exercise we have set out." The Court also held (in para 77) thus: "We have been told that wherever the Parliament has intended a hearing it has said so i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the point and the little-large Indian (voter) should not be hijacked from the course of free and fair elections by subtle perversion of discretion of casting votes. In a continual participative operation of periodical election, the voter does a social audit of his candidate and for such audit he must be well informed about the past of his candidate. Further, Article 324 operates in areas left unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms. The silence of statute has no exclusionary effect except where it flows from necessary implication. Therefore, in our view, it would be difficult to accept the contention raised by Mr. Salve, learned Solicitor General and Mr. Ashwini Kumar, learned senior counsel appearing on behalf of Intervenor that if there is no provision in the Act or the Rules, the High Court ought not to have issued such directions to the Election Commission. It is settled that the power of the Commission is plenary in character in exercise thereof. In a statutory provisions or rules, it is known that every contingency could not be foreseen or anticipated with precision, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, direction and control" in Article 324 (1), one has to remember that every norm which lays down a rule of conduct cannot possibly be elevated to the position of legislation or delegated legislation. There are some authorities or persons in certain grey areas who may be sources of rules of conduct and who at the same time cannot be equated to authorities or persons who can make law, in the strict sense in which it is understood in jurisprudence. A direction may mean an order issued to a particular individual or a precept which many may have to follow. It may be a specific or a general order. One has also to remember that the source of power in this case is the Constitution, the highest law of the land, which is the repository and source of all legal powers and any power granted by the Constitution for a specific purpose should be construed liberally so that the object for which the power is granted is effectively achieved. Viewed from this angle it cannot be said that any of the provisions of the Symbols Order suffers from want of authority on the part of the Commission, which has issued it." Thereafter, this Court in Common Cause (A Registered Society) v. Union of India and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for its scrutiny, the details of the expenditure incurred or authorised by the parties in connection with the election of their respective candidates." The Court further observed that Constitution has made comprehensive provision under Article 324 to take care of surprise situations and it operates in areas left unoccupied by legislation. Question No.2 Right to know about the candidates contesting elections. Now we would refer to various decisions of this Court dealing with citizens' right to know which is derived from the concept of 'freedom of speech and expression'. The people of the country have a right to know every public act, everything that is done in a public way by the public functionaries. MPs or MLAs are undoubtedly public functionaries. Public education is essential for functioning of the process of popular government and to assist the discovery of truth and strengthening the capacity of an individual in participating in decision making process. The decision making process of a voter would include his right to know about public functionaries who are required to be elected by him. In State of Uttar Pradesh v. Raj Narain and Others [(1975) 4 SCC 428], the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 purposes 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 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 beliefs 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 generous support from all those who believe in the participation of people in the administration." From the afore-quoted paragraph, it can be deduced that the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and this would include their decision of casting votes in favour of a particular candidate. If there is a disclosure by a candidate as sought for then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free-speech element is absent from his right." The Court thereafter (in paragraph 82) held: "True democracy cannot exist unless all citizens have a right to 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 noninformation all 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 1 per cent of the population has an access to the print media which is not subject to precensorship." The Court also observed"a successful democracy posits an 'aware' citizenry." If right to telecast and right to view to sport games and right to impart such information is considered to be part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". The Court also observed "democracy expects openness and openness is concomitant of a free society and the sunlight is a best disinfectant". Mr. Ashwini Kumar, learned senior counsel appearing on behalf of the intervenor submitted that the aforesaid observations are with regard to citizen's right to know about the affairs of the Government, but this would not mean that citizens have a right to know the personal affairs of MPs or MLAs. In our view, this submission is totally misconceived. There is no question of knowing personal affairs of MPs or MLAs. The limited information is whether the person who is contesting election is involved in any criminal case and if involved what is the result? Further there are widespread allegations of corruption against the persons holding post and power. In such a situation, question is not of knowing personal affairs but to have openness in democracy for attempting to cure cancerous growth of corruption by few rays of light. Hence, citizens who elect MPs or MLAs are entitled to know that their representative has not misconducted himself in collecting wealth after being elected. This information could be easily gathered only if prior to election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that in a democratic form of government, MP or MLA is having higher status and duty to the public. In P.V. Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626], the Court inter alia considered whether Member of Parliament is a public servant? The Court [in para 162] held thus: - " public servant is "any person who holds an office by virtue of which he is authorised or required to perform any public duty". Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty. Public duty is defined by Section 2(b) of the said Act to mean "a duty in the discharge of which the State, the public or that community at large has an interest". In a democratic form of government it is the Member of Parliament or a State Legislature who represents the people of his constituency in the highest lawmaking bodies at the Centre and the State respectively. Not only is he the representative of the people in the process of making the laws that will regulate their society, he is their representative in deciding how the funds of the Centre and the State shall be spent and in exercising control over the executive. It is diffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude all powers necessary for smooth conduct of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps. 2. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar's case, the Court construed the expressions "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." 6. Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest. 7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voters' speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must. Voter's (little mancitizen's) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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