December 3, 2022

The case when disclosure of candidate’s antecedents in election became compulsory

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.

Union of India v. Association for Democratic Reforms (2002)

This was the petition from an organisation ‘Association for Democratic Reforms’ which was filed before the High court of Delhi under article 226 of the constitution for direction to implement the recommendations made by the Law Commission in its 170th Report and to make necessary changes under Rule 4 of the Conduct of Election Rules, 1961.

It was 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 was also suggested that true and correct statement of assets owned by the candidate, his/her spouse and dependent relations should also be disclosed.

Petitioner also referred the report of the Vohra Committee of the Government of India, Ministry of Home Affairs, which highlighted the criminalization of politics.

According to petitioner, despite the Reports of the Law Commission and Vohra Committee, successive governments 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.

High Court’s Stand

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, for amending the Act or the Rules.

However, the Court considered whether or not an elector, a citizen of the country has a fundamental right to receive the information regarding the criminal activities of a candidate to the Lok Sabha or Legislative Assembly.

After considering the relevant submissions and the reports as well as the say of Election Commission, the High Court held that for making a right choice, it is essential that the past of the candidate should not be kept in the dark as it is not in the interest of the democracy and wellbeing of the country. The Court directed the Election Commission to secure to voters the information of antecedents of the candidates contesting election to the Parliament and to the State Legislature and the parties they represent.

The central government challenged this order and filed appeal before the supreme court.

Question before the court

So, the main question before the court was that in a nation wedded to republican and democratic form of government, where election as a Member of Parliament or as a Member of Legislative Assembly is of utmost importance for governance of the country, whether, before casting votes, voters have a right to know relevant particulars of their candidates?

Election commission’s stand in the issue

It is notable that election commission supported the view of petitioner and showed its concerns on the criminilisation of politics.

It was stated in the counter-affidavit filed by the ECI 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 even getting elected in the process. Some of them have even adorned ministerial berths and, thus, law breakers have become law makers. The Commission has suggested that candidate should be required to furnish information in respect of,

(a) all cases in which he has been convicted of any offence and punished with any kind of imprisonment or amount of fine, and whether any appeal or application for review is pending in respect of any such cases of conviction, and

(b) all pending cases in which he is involved before any court of law in any offence, punishable with imprisonment for two years or more, and where the appropriate court has on prima facie satisfaction framed the charges against him for proceeding with the trial.

For declaration of assets, it has been suggested by the Election Commission that candidate should be asked to disclose his assets, all immovable and movable properties which would include cash, bank balances, fixed deposits and other savings such as shares, stocks, debentures etc. Candidate also should be directed to disclose for voters’ information, not only his assets but his liabilities like over- dues to public financial institutions and government dues and charges on his/her properties.

The Court may lay down that it would be mandatory for each candidate for election to Parliament or State Legislature, to file along with his nomination paper, the aforesaid duly sworn affidavit, furnishing therein the information on the aspects detailed above and that the nomination paper of such a candidate who fails or refuges to file the required affidavit or files an incomplete affidavit shall be deemed to be an incomplete nomination paper within the meaning of section 33(1) of the Representation of the People Act, 1951 and shall suffer consequences according to law.

Significant Contentions

Mr. Rajinder Sachhar, counsel appearing on behalf of the petitioners submitted that considering the widespread illiteracy of the voters, and at the same time their overall culture and character, if they are well-informed about the candidates contesting election as M.P. or M.L.A., they would be in a position to decide independently to cast their votes in favour of a candidate who, according to them, is much more efficient to discharge his functions as M.P. or M.L.A.

Ms. Kamini Jaiswal, learned counsel appearing on behalf of respondents 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 they can judiciously decide in whose favour they should vote; otherwise, there would not be true reflection of electoral mandate.

Deliberation by the court

The supreme court was of the opinion that 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 of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case.

For maintaining purity of elections and healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided its result, if pending whether charge is framed or cognizance is taken by the Court? There is no necessity of suppressing the relevant facts from the voters.

The right to know

The court referred various decisions[1] of the Court dealing with citizens’ right to know which is derived from the concept of ‘freedom of speech and expression’. And said that 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.

The court quoted the observation made by court in Romesh Thapar v. State of Madras (1950)[2]

 “(The freedom) lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processses 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”.

The court further quoted the holdings of the court in the case of Secretary, Ministry of Information and Broadcasting, Government of India and Others v. Cricket Association of Bengal and Others,(1995)[3],

“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 non- information 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…. a successful democracy posits an ‘aware’ citizenry.”

Freedom of speech includes right to receive information too

After considering the above-mentioned decisions, the court was of the view that,

“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 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. Entertainment is implied in freedom of ‘speech and expression’ and there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy.”

The court further said that,

“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, the assets of such person are disclosed…. It is also submitted that even the Gazetted Officers in all government services are required to disclose their assets and thereafter to furnish details of any acquisition of property annually. In our view, it is rightly submitted that in a democratic form of government, MP or MLA is having higher status and duty to the public.”

The court’s Directions

While concluding the judgment, the court summed up its deliberation in following points-

1. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re- election.

2. The right to get information in democracy is recognised all throughout and it is natural right flowing from the concept of democracy.

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 survival of democracy.

And, the court directed the election commission as follows-

(1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past if any, whether he is punished 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 details thereof;

(3) The assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependants.

(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.

(5) The educational qualifications of the candidate.

The bench

The bench included the judges, M.B. Shah, Bisheshwar Prasad Singh, H.K. Sema. And, it was authored by M.B. Shah. The judgment was delivered on 2 May, 2002.

Reference

Union of India v. Association for democratic Reforms, (2002)


[1] State of Uttar Pradesh v. Raj Narain and Others [(1975) 4 SCC 428]; Indian Express Newspapers (Bombay) Private Ltd. and Others etc. v. Union of India and others [(1985) 1 SCC 641],

[2] (1950 SCR 594)

[3] [(1995) 2 SCC 161],