ADR Judgment

In Union of India v. Association for Democratic Reforms[1] (“ADR”), Supreme Court traced the right of voters to have information about the antecedents, including the criminal past, of candidates contesting elections, to Article 19(1)(a) of the Constitution.

In ADR (supra), proceedings under Article 226 of the Constitution were instituted before the High Court of Delhi seeking a direction to implement the Law Commission’s recommendations to,

(a) debar candidates from contesting elections if charges have been framed against them by a Court in respect of certain offences; and

(b) ensure that candidates furnish details regarding criminal cases which are pending against them.

The High Court held that the Court cannot direct Parliament to implement the recommendations of the Law Commission. However, the High Court directed the ECI to secure information relating to

(a) the details of cases in which a candidate is accused of any offences punishable with imprisonment;

(b) assets possessed by a candidate, their spouse and dependents;

(c) facts bearing on the candidate’s competence, capacity, and suitability for representing the people; and

(d) any other information which ECI considers necessary for judging the capacity of the candidate fielded by the political party.

The Union of India appealed against the decision of the High Court before Supreme Court. Supreme Court held that voters have a right to be sufficiently informed about candidates so as to enable them to exercise their democratic will through elections in an intelligent manner. Such information was held to be necessary for elections to be conducted in a “free and fair manner”:

“34. …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 it would strengthen the voters in taking appropriate decision of casting their votes.

[…] we fail to understand why the right of a citizen/voter — a little man — to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a). In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless.

As stated in the aforesaid passage, one-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Therefore, casting of a vote by a misinformed and non-informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions.”

Supreme Court rejected the argument that information about a candidate contesting elections cannot be compelled to be disclosed because it is not “public information”. The three-Judge Bench held that information that candidates are required to disclose is only limited to aiding the voters in assessing whether they could cast their vote in a candidate’s favour.

The Court observed that the criminal background of a candidate and assets of the candidate (through which it could be assessed if the candidate has amassed wealth through corruption when they were elected previously) would aid the voters to cast their vote in an informed manner.

Supreme Court directed the ECI to call for the following information on affidavit as a part of nomination:

a. Whether the candidate has been convicted, acquitted or discharged of any criminal offence in the past and if convicted, whether they are punished with imprisonment or fine;

b. In the six months prior to the filling of nomination papers, whether the candidate was accused in any pending case for an offence punishable with imprisonment for two years or more, and in which a charge is framed or cognizance is taken by the court of law;

c. The assets (immovable, movable, bank balances and others) of a candidate and of his/her spouse and that of dependents;

d. Liabilities, if any, particularly whether there are any over dues to any public financial institution or government dues; and

e. The educational qualifications of the candidate.

Supreme Court observed that the ECI can ask candidates to disclose information about the expenditure incurred by political parties to maintain the purity of elections. However, the operative portion of the judgment did not reflect this observation.

Pursuant to the decision of Supreme Court in ADR (supra), Parliament amended the RPA to incorporate some of the directions issued by Supreme Court.[2] Section 33-B of RPA stipulated that the candidate need not disclose any other information (other than the information required by law) notwithstanding any judgment.

PUCL Judgment

In PUCL v. Union of India[3], proceedings were initiated before Supreme Court under Article 32 for challenging Section 33-B of the RPA.

Justice M B Shah, writing for the majority, noted that the decision of the three-Judge Bench in ADR (supra) tracing the right to know the antecedents of candidates contesting elections had attained finality and Section 33-B was unconstitutional because it had the effect of rendering the judgment of Supreme Court inoperative. The learned Judge on an independent interpretation also held that the right to information of a voter is a facet of Article 19(1)(a).

Justice Venkatarama Reddi observed in his concurring opinion that there are two postulates which govern the right to vote:

First, the formulation of an opinion about candidates, and

Second, the expression of choice based on the opinion formulated by casting votes in favour of a preferred candidate. A voter must possess relevant and essential information that would enable them to evaluate a candidate and form an opinion for the purpose of casting votes.

The learned Judge observed that the Constitution recognises the right of a voter to know the antecedents of a candidate though the right to vote is a statutory right because the action of voting is a form of expression protected by Article 19(1)(a):

“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 tantamount 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.”

In the context of the decision of Supreme Court in ADR (supra), the Judge observed that the Court issued specific directions for the disclosure of certain information about candidates because of a legislative vacuum, and that the directions issued to the ECI will fill the vacuum until Parliament legislates on the subject.

Thus, the five directions which were issued by Supreme Court in ADR (supra) were not construed to be inflexible and immutable theorems. The learned Judge observed that though the voters have a fundamental right to know the antecedents of candidates, all the conceptions of this right formulated by Supreme Court in ADR (supra) cannot be elevated to the realm of fundamental rights.

The majority was of the view that the voters have a fundamental right to all the information which was directed to be declared by Supreme Court in ADR (supra).

Justice Venkatarama Reddi disagreed. In the opinion of the learned Judge, only certain information directed to be disclosed in ADR (supra) is “crucial” and “essential” to the right to information of the voter:

“109. In my view, the points of disclosure spelt out by Supreme Court in Assn. for Democratic Reforms case [Ed.: See full text at 2003 Current Central Legislation, Pt. II, at p. 3] 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 Supreme 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 deviation from the aspects of disclosure spelt out by Supreme 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 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. […]

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. […]

But, I reiterate that the shape of the legislation need not be solely controlled by the directives issued to the Election Commission to meet an ad hoc situation. As I said earlier, the right to information cannot be placed in straitjacket formulae and the perceptions regarding the extent and amplitude of this right are bound to vary.”

Justice Reddi held that Section 33-B was unconstitutional because:

a. Parliament cannot impose a blanket ban on the disclosure of information other than the disclosure of information required by the provisions of RPA. The scope of the fundamental right to information may be expanded in the future to respond to future exigencies and necessities. The provision had the effect of emasculating the freedom of speech and expression of which the right to information is a facet; and

b. The provision failed to give effect to an essential aspect of the fundamental right, namely the disclosure of assets and liabilities of the candidates.

Justice Reddi then proceeded to juxtapose the directions for disclosure issued by Supreme Court in ADR (supra) with the scope of the provisions of the RPA mandating disclosure. The learned judge observed that the extent of disclosure mandated in RPA is fairly adequate with respect to past criminal records but not with regard to pending cases.

With respect to assets and liabilities, the learned Judge observed that the disclosure of assets and liabilities is essential to the right to information of the voter because it would enable voters to form an opinion about whether the candidate, upon being elected in the past, had amassed wealth in their name or their family Additionally, information about dues which are payable by the Justice Reddi observed that the requirement to disclose assets of the candidate’s family was justified because of the prevalence of Benami transactions.

Though mandating the disclosure of assets and liabilities would infringe the right to privacy of the candidate and their family, the learned Judge observed that disclosure which is in furtherance of the right to information would trump the former because it serves the larger public interest.

Justice Reddi then observed that disclosure of the educational qualifications of a candidate is not an essential component of the right to information because educational qualifications do not serve any purpose for the voter to decide which candidate to cast a vote for since the characteristics of duty and concern of the people is not “monopolised by the educated”.

The following principles can be deduced from the decisions of Supreme Court in ADR (supra) and PUCL (supra):

a. Voters have a right to information which would enable them to cast their votes rationally and intelligently because voting is one of the foremost forms of democratic participation;

b. In ADR (supra), Supreme Court observed that while the disclosure of information may violate the right to privacy of candidates and their families, such information must be disclosed because it furthers public interest.

The opinion of Justice Venkatarama Reddi in PUCL (supra) also followed the same line of reasoning. Justice M B Shah writing for himself and Justice D M Dharmadhikari held that the right to privacy would not be infringed because information about whether a candidate is involved in a criminal case is a matter of public record.

Similarly, the assets or income are normally required to be disclosed under the provisions of the Income Tax Act; and

c. The voters have a right to the disclosure of information which is “essential” for choosing the candidate for whom a vote should be cast. The learned Judges in PUCL (supra) differed to the extent of what they considered “essential” information for exercising the choice of voting.

While relying on the judgments of Supreme Court in ADR (supra) and PUCL (supra) the petitioners argue that non-disclosure of information on the funding of political parties is violative of the right to information under Article 19(1)(a).

[1] (2002) 5 SCC 294

[2] (2003) 4 SCC 399

[3] (2003) 4 SCC 399 [18, 27]