TMI Blog2003 (3) TMI 669X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly agree with the conclusion that Section 33(B) of the Representation of the People Act, 1951 does not pass the test of constitutionality, I have come across a limited area of disagreement on certain aspects, especially pertaining to the extent of disclosures that could be insisted upon by the Court in the light of legislation on the subject. Moreover, the importance and intricacies of the subject-matter and the virgin ground trodden by this Court in Union of India Vs. Association for Democratic Reforms [(2002) 5 SCC 294] to bring the right to information of the voter within the sweep of Article 19(1)(a) has impelled me to elucidate and clarify certain crucial aspects. Hence, this separate opinion. I. (1). Freedom of expression and right to information In the Constitution of our democratic Republic, among the fundamental freedoms, freedom of speech and expression shines radiantly in the firmament of Part III. We must take legitimate pride that this cherished freedom has grown from strength to strength in the post independent era. It has been constantly nourished and shaped to new dimensions in tune with the contemporary needs by the constitutional Courts. Barring a few aberration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of the Government must be the rule and secrecy an exception..." Peoples right to know about governmental affairs was emphasized in the following words: "No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only when people know how Government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy." These two decisions have recognized that the right of the citizens to obtain information on matters relating to public acts flows from the fundamental right enshrined in Article 19(1)(a). The pertinent observations made by the learned Judges in these two cases were in the context of the question whether the privilege under Section 123 of the Evidence Act could be claimed by the State in respect of the Blue Book in the first case i.e., Raj Narain s case (supra) and the file throwing light on the consultation process with the Chief Justice, in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y posits an aware citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them." A conspectus of these cases would reveal that the right to receive and impart information was considered in the context of privilege pleaded by the State in relation to confidential documents relating to public affairs and the freedom of electronic media in broadcasting/telecasting certain events. I. (2). Right to information in the context of the voter s right to know the details of contesting candidates and the right of the media and others to enlighten the voter. For the first time in Union of India Vs. Association for Democratic Reforms case (supra), which is the forerunner to the present controversy, the right to know about the candidate standing for election has been brought within the sweep of Article 19(1)(a). There can be no doubt that by doing so, a new dimension has been given to the right embodied in Article 19(1)(a) through a creative approach dictated by the need to improve and refine the political process of election. In carving out this right, the Court had not traversed a beaten track ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein elevating the right to secure information about a contesting candidate to the position of a fundamental right. That decision has been duly taken note of by the Parliament and acted upon by the Election Commission. It has attained finality. At this stage, it would not be appropriate to set the clock back and refer the matter to Constitution Bench to test the correctness of the view taken in that case. I agree with my learned brother Shah, J. in this respect. However, I would prefer to give reasons of my own-may not be very different from what the learned Judge had expressed, to demonstrate that the proposition laid down by this Court rests on a firm Constitutional basis. I shall now proceed to elucidate as to how the right to know the details about the contesting candidate should be regarded as a part of the freedom of expression guaranteed by Article 19(1)(a). This issue has to be viewed from more than one angle-from the point of view of the voter, the public viz., representatives of Press, organizations such as the petitioners which are interested in taking up public issues and thirdly from the point of view of the persons seeking election to the legislative bodies. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences. To scuttle the flow of information-relevant and essential would affect the electorate s ability to evaluate the candidate. Not only that, the information relating to the candidates will pave the way for public debate on the merits and demerits of the candidates. When once there is public disclosure of the relevant details concerning the candidates, the Press, as a media of mass communication and voluntary organizations vigilant enough to channel the public opinion on right lines will be able to disseminate the information and thereby enlighten and alert the public at large regarding the adverse antecedents of a candidate. It will go a long way in promoting the freedom of speech and expression. That goal would be accomplished in two ways. It will help the voter who is interested in seeking and receiving information about the candidate to form an opinion according to his or her conscience and best of judgment and secondly it will facilitate the Press and voluntary organizations in imparting information on a matter of vital public concern. An informed voter-whether he acquires information directly by keeping track of disclosures or through the Press and other channels of comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed, resolution or decision carried, by voting" is one of the meanings given to the expression vote in the New Oxford Illustrated Dictionary. It is well settled and it needs no emphasis that the fundamental right of freedom of speech and expression should be broadly construed and it has been so construed all these years. In the light of this, the dictum of the Court that the voter "speaks out or expresses by casting a vote" is apt and well founded. I would only reiterate and say that freedom of voting by expressing preference for a candidate is nothing but freedom of expressing oneself in relation to a matter of prime concern to the country and the voter himself. I. (3) Right to vote is a Constitutional right though not a fundamental right but right to make choice by means of ballot is part of freedom of expression. The right to vote for the candidate of one s choice is of the essence of democratic polity. This right is recognized by our Constitution and it is given effect to in specific form by the Representation of the People Act. The Constituent Assembly debates reveal that the idea to treat the voting right as a fundamental right was dropped; nevertheless, it was decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an integral part of any fundamental right, remains to be squarely met. Here, a distinction has to be drawn between the conferment of the right to vote on fulfillment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom. None of the decisions of this Court wherein the proposition that the right to vote is a pure and simple statutory right was declared and reiterated, considered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he must observe the rules laid down by law. So holding, those Sections were held to be intra vires. I do not think that this decision which dealt with the contesting candidate s rights and obligations has any bearing on the freedom of expression of the voter and the public in general in the context of elections. The remark that the fundamental right chapter has no bearing on a right like this created by statute cannot be divorced from the context in which it was made. The learned senior counsel appearing for one of the interveners (B.J.P.) has advanced the contention that if the right to information is culled out from Article 19(1)(a) and read as an integral part of that right, it is fraught with dangerous consequences inasmuch as the grounds of reasonable restrictions which could be imposed are by far limited and therefore, the Government may be constrained to part with certain sensitive informations which would not be in public interest to disclose. This raises the larger question whether apart from the heads of restriction envisaged by sub-Article (2) of Article 19, certain inherent limitations should not be read into the Article, if it becomes necessary to do so in national ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risonment for two years or more in a pending case in which a charge has been framed and; (ii) Whether he has been convicted of an offence (other than the offence referred to in sub-Sections (1) to (3) of Section 8) and sentenced to imprisonment for one year or more. On other points spelt out in this Court s judgment, the candidate is not liable to furnish any information and that is so, notwithstanding anything contained in any judgment or order of a Court OR any direction, order or instruction issued by the Election Commission. Omission to furnish the information as per the mandate of Section 33B and furnishing false information in that behalf is made punishable. That is the sum and substance of the two provisions namely, Section 33A and 33B. The plain effect of the embargo contained in Section 33B is to nullify substantially the directives issued by the Election Commission pursuant to the judgment of this Court. At present, the instructions issued by the Election Commission could only operate in respect of the items specified in Section 33A and nothing more. It is for this reason that Section 33B has been challenged as ultra vires the Constitution both on the ground that it aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the Parliament in its discretion did not go the whole hog, but chose to limiting the scope of mandated disclosures to one only of the important aspects highlighted in the judgment. The question remains to be considered whether in doing so, the Parliament out-stepped its limits and enacted a law in violation of the guarantee enshrined in Article 19(1)(a) of the Constitution. The allied question is whether the Parliament has no option but to scrupulously adopt the directives given by this Court to the Election Commission. Is it open to the Parliament to independently view the issue and formulate the parameters and contents of disclosure, though it has the effect of diluting or diminishing the scope of disclosures which, in the perception of the Court, were desirable? In considering these questions of far reaching importance from the Constitutional angle, it is necessary to have a clear idea of the ratio and implications of this Court s Judgment in the Association for Democratic Reforms case. II. (4) Analysis of the judgment in Association for Democratic Reforms case-whether and how far the directives given therein have impact on the Parliamentary legislation-Approach of Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... norms and modalities to carry out and give effect to the aforesaid directions should be drawn up properly by the Election Commission as early as possible." Thus, the Court was conscious of the fact that the Election Commission could act in the matter only so long as the field is not covered by legislation. The Court also felt that the vacuum or void should be suitably filled so that the right to information concerning a candidate would soon become a reality. In other words, till the Parliament applied its mind and came forward with appropriate legislation to give effect to the right available to a voter-citizen, the Court felt that the said goal has to be translated into action through the media of Election Commission, which is endowed with residuary power to regulate the election process in the best interests of the electorate. Instead of leaving it to the Commission and with a view to give quietus to the possible controversies that might arise, the Court considered it expedient to spell out five points (broadly falling into three categories) on which the information has to be called for from the contesting candidate. In the very nature of things, the directives given by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s needed in identifying and defining the parameters of the right which the voter/citizen has. The standards to be applied to disclosures vis--vis public affairs and governance AND the disclosures relating to personal life and bio-data of a candidate cannot be the same. The measure or yardstick will be somewhat different. It should not be forgotten that the candidates right to privacy is one of the many factors that could be kept in view, though that right is always subject to overriding public interest. In my view, the points of disclosure spelt out by this Court in the Association for Democratic Reforms case should serve as broad indicators or parameters in enacting the legislation for the purpose of securing the right to information about the candidate. The paradigms set by the Court, though pro tempore in nature as clarified supra, are entitled to due weight. If the legislature in utter disregard of the indicators enunciated by this Court proceeds to make a legislation providing only for a semblance or pittance of information or omits to provide for disclosure on certain essential points, the law would then fail to pass the muster of Article 19(1)(a). Though certain amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 33B has to be judged from the above angle and perspective. Considered in that light, I agree with the conclusion of M.B. Shah, J. that Section 33B does not pass the test of Constitutionality. The reasons are more than one. Firstly, when the right to secure information about a contesting candidate is recognized as an integral part of fundamental right as it ought to be, it follows that its ambit, amplitude and parameters cannot be chained and circumscribed for all time to come by declaring that no information, other than that specifically laid down in the Act, should be required to be given. When the legislation delimiting the areas of disclosure was enacted, it may be that the Parliament felt that the disclosure on other aspects was not necessary for the time being. Assuming that the guarantee of right to information is not violated by making a departure from the paradigms set by the Court, it is not open to the Parliament to stop all further disclosures concerning the candidate in future. In other words, a blanket ban on dissemination of information other than that spelt out in the enactment, irrespective of need of the hour and the future exigencies and expedients is, in my vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld have and thereby impinged on the guarantee enshrined in Article 19(1)(a). III. (3) How far the principle that the Legislature cannot encroach upon the judicial sphere applies. It is a settled principle of constitutional jurisprudence that the only way to render a judicial decision ineffective is to enact a valid law by way of amendment or otherwise fundamentally altering the basis of the judgment either prospectively or retrospectively. The legislature cannot overrule or supersede a judgment of the Court without lawfully removing the defect or infirmity pointed out by the Court because it is obvious that the legislature cannot trench on the judicial power vested in the Courts. Relying on this principle, it is contended that the decision of apex Constitutional Court cannot be set at naught in the manner in which it has been done by the impugned legislation. As a sequel, it is further contended that the question of altering the basis of judgment or curing the defect does not arise in the instant case as the Parliament cannot pass a law in curtailment of fundamental right recognized, amplified and enforced by this Court. The contention that the fundamental basis of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IV. (1). Criminal background and pending criminal cases against candidates-Section 33-A of the R.P. (3rd Amendment) Act. As regards the first aspect, namely criminal record, the directives in Association for Democratic Reforms case are two fold: "(i) whether the candidate is convicted/ acquitted/discharged of any criminal case in the past-if any, whether he is punished with imprisonment or fine and (ii) prior to six months of filing of nomination, whether the candidate is an accused in any pending case of any offence punishable with imprisonment for two years or more and in which charge is framed or cognizance is taken by the Court of law." As regards the second directive, the Parliament has substantially proceeded on the same lines and made it obligatory to the candidate to furnish information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the competent Court. However, the case in which cognizance has been taken but charge has not been framed is not covered by Clause (i) of Section 33A(I). The Parliament having taken the right step of compelling disclosure of the pendency of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of various factors, as observed supra. The legislative judgment cannot be faulted merely for the reason that the pro tempore directions of this Court have not been scrupulously followed. As regards acquittals, it is reasonable to take the view that such information will not be of much relevance inasmuch as acquittal prima facie implies that the accused is not connected with the crime or the prosecution has no legs to stand. It is not reasonable to expect that from the factum of prosecution resulting in the acquittal, the voters/citizens would be able to judge the candidate better. On the other hand, such information in general has the potential to send misleading signals about the honesty and integrity of the candidate. I am therefore of the view that as regards past criminal record, what the Parliament has provided for is fairly adequate. One more aspect which needs a brief comment is the exclusion of offences referred to in sub-Sections (1) and (2) of Section 8 of the R.P. Act, 1951. Section 8 deals with disqualification on conviction for certain offences. Those offences are of serious nature from the point of view of national and societal interest. Even the existing pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court in this regard have been given a short shrift by the Parliament with little realization that they have significant bearing on the right to get information from the contesting candidates and such information is necessary to give effect to the freedom of expression. As regards the purpose of disclosure of assets and liabilities, I would like to make it clear that it is not meant to evaluate whether the candidate is financially sound or has sufficient money to spend in the election. Poor or rich are alike entitled to contest the election. Every citizen has equal accessibility in public arena. If the information is meant to mobilize public opinion in favour of an affluent/financially sound candidate, the tenet of socialistic democracy and the concept of equality so firmly embedded in our Constitution will be distorted. I cannot also share the view that this information on assets would enable the public to verify whether unaccounted money played a part in contesting the election. So long as the Explanation-I to Section 77 of R.P. Act, 1951 stands and the contributions can legitimately come from any source, it is not possible for a citizen/voter to cause a verification to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncated information of the assets and liabilities is given. It cannot be denied that the family relationship and social order in our country is such that the husband and wife look to the properties held by them as belonging to the family for all practical purposes, though in the eye of law the properties may distinctly belong to each of them. By and large, there exists a sort of unity of interest in the properties held by spouses. The property being kept in the name of the spouse benami is not unknown in our country. In this situation, it could be said that a countervailing or paramount interest is involved in requiring a candidate who chooses to subject himself/herself to public gaze and scrutiny to furnish the details of assets and liabilities of the spouse as well. That is one way of looking at the problem. More important, it is to be noted that the Parliament itself accepted in principle that not only the assets of the elected candidates but also his or her spouse and dependent children should be disclosed to the constitutional authority and the right of privacy should not come in the way of such disclosure; but, the hitch lies in the fact that the disclosure has to be made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducated and less educated from the point of view of his/her calibre and culture is rather thin. Much depends on the character of the individual, the sense of devotion to duty and the sense of concern to the welfare of the people. These characteristics are not the monopoly of well educated persons. I do not think that it is necessary to supply information to the voter to facilitate him to indulge in an infructuous exercise of comparing the educational qualifications of the candidates. It may be that certain candidates having exceptionally high qualifications in specialized field may prove useful to the society, but it is natural to expect that such candidates would voluntarily come forward with an account of their own academic and other talents as a part of their election programme. Viewed from any angle, the information regarding educational qualifications is not a vital and useful piece of information to the voter, in ultimate analysis. At any rate, two views are reasonably possible. Therefore, it is not possible to hold that the Parliament should have necessarily made the provision for disclosure of information regarding educational qualifications of the candidates. V. Conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by Court from the ambit of disclosure. 7. The provision made in Section 75A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of spouse or dependent children, the Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Article 19(1)(a). 8. The failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression. 9. The Election Commission has to issue revised instructions to ensure implementation of Section 33A subject to what is laid down in this judgment regarding the cases in which cog ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
