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VOTER’S RIGHT TO KNOW THE ANTECEDENTS OF A CANDIDATE CONTESTING ELECTION

People’s Union for Civil Liberties (PUCL) v. Union of India
AIR 2003 SC 2363: 2003 (3) SCALE 263: (2003) 4 SCC 399: (2003) 2 SCR 1136
Judges: M.B. Shah,
P.V. Reddi and D.M. Dharmadhikari, JJ.
Date of Decision: 13-3-2003

FACTS
In Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294: AIR 2002 SC 2112, the Supreme Court directed the Election Commission to call for the following information on affidavit by issuing necessary order in exercise of its power under article 324 of the Constitution from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination papers.

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 of (immovable, movable etc.) of a candidate and of his/her spouse.
4. Liabilities, if any, particularly whether there are any overdues of any public financial institution or Government dues.
5. The educational qualification of the candidate.

Subsequently, the Representation of the People (Amendment) Ordinance, 2002 (4 of 2002) was promulgated on 24-8-2002. The ordinance was later replaced by the Representation of the People (Third Amendment) Act, 2002 (72 of 2002) which inserted section 33A and section 33B in the Act. The result of the insertion of section 33A was that a candidate is not required to disclose (a) the cases in which he is acquitted or discharged of criminal offence(s); (b) his assets and liabilities; and (c) his educational qualification. Section 33B lays down that notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder.

The petitioner in the present case challenged the constitutional validity of section 33B on the ground that prima facie it is arbitrary, unjustifiable and void being violative of the fundamental right of the citizens/voters to know the antecedents of the candidates. The petitioner contended that without exercise of that right it would not be possible to have free and fair elections and therefore, the impugned section violates the very basic features of the Constitution, namely, republic democracy. It was also contended by the petitioner that by issuing the Ordinance the Government has arrogated to itself the power to decide unilaterally for nullifying the decision rendered by the Supreme Court without considering whether it can pass legislation which abridges fundamental right guaranteed under article 19(1)(a).

ISSUES
(1) Voter’s right to know the antecedents of the candidates contesting election.
(2) Constitutional validity of section 33B of the Representation of the People Act, 1951, as inserted by the Representation of the People (Third Amendment) Act, 2002.

JUDGMENT
The voters’ right to know the antecedents of the candidates is based on interpretation of article 19(1)(a) which provides that all citizens of this country would have fundamental right to “freedom of speech and expression” and this phrase is construed to include fundamental right to know relevant antecedents of the candidate contesting the elections. The directions issued in Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294: AIR 2002 SC 2112, is based on sound foundation and can be stated thus:—
• Democratic Republic is part of the basic structure of the Constitution.
• For this, free and fair periodical elections based on adult franchise are must.
• For having unpolluted healthy democracy, citizens-voters should be well-informed.

The foundation of a healthy democracy is to have well-informed citizens-voters. The reason to have right to information with regard to the antecedents of the candidate is that voter can judge and decide in whose favour he should cast his vote. It is his choice whether to elect a candidate against whom criminal cases for serious or non-serious charges were filed but is acquitted or discharged. He is to consider whether his candidate may or may not have sufficient assets so that he may not be tempted to indulge in unjustified means for accumulating wealth. Exposure to public scrutiny is one of the known means for getting clean and less polluted persons to govern the country. A citizen-voter must have necessary information so that he can intelligently decide in favour of a candidate who satisfies his criterion of being elected as M.P. or M.L.A.

Right to participate in the affairs of the policy of the country by casting vote at the time of election would be meaningless unless the voters are well informed about all sides of the issues, in respect of which they are called upon to express their views by casting their votes. Disinformation, misinformation, non-information all equally create an uninformed citizenry which would finally make democracy a mobocracy and farce. A well informed voter is the foundation of democratic structure. That information to a voter, who is the citizen of this country, is one facet of the fundamental right under article 19(1)(a). Further, the freedom of speech and expression, as has been held repeatedly, is basic to and indivisible from a democratic polity. The right of a voter to know bio-data of a candidate is the foundation of democracy. The old dictum—let the people have the truth and the freedom to discuss it and all will go well with the Government—should prevail.

The true test for deciding the validity of the Act is—whether it takes away or abridges fundamental rights of the citizens? If there is direct abridgment of fundamental right of freedom of speech and expression, the law would be invalid. The Legislature can remove the basis of a decision rendered by a competent Court thereby rendering that decision ineffective but the Legislature has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the Court. A declaration that an order made by a Court of law is void is normally a part of the judicial function. Legislature cannot declare that decision rendered by the Court is not binding or is of no effect.

Section 33B is on the face of it beyond the legislative competence, as the Supreme Court has held that voter has a fundamental right under article 19(1)(a) to know the antecedents of a candidate. The judgment rendered by the Court in Association for Democratic Reforms with People’s Union for Civil Liberties v. Union of India, (2002) 5 SCC 294, has attained finality and therefore there is no question of interpreting constitutional provision which calls for reference under article 145(3).

HELD
Voters have the right under article 19(1)(a) to know the antecedents of the candidates contesting election.
Section 33B of the Amended Act is illegal, null and void.

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