# PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) AND ANR v. UNION OF INDIA AND ANR

- **Citation:** [2003] 2 S.C.R. 1136
- **Court:** Supreme Court of India
- **Decided:** 2003-03-13
- **Bench:** M.B. Shah, P. Venkatarama Redd!, D.M. Dharmadhikari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/people-s-union-for-civil-liberties-pucl-and-anr-v-union-of-india-and-anr-19076
- **Pages:** 87

## Headnote

Election Laws:
C
Representation of the People Act, 1951:
Section 33B-Prohibition regarding disclosure or furnishing of
information in respect of candidate's election, which is not required to be
disclosed or furnished under the Act or the rules made, despite directions
D issued by Supreme Court-Constitutional validity of-Held: right of voter to
know antecedents of contesting candidate is a fundamental right under Article
19(J)(a)-Such right could be abridged by passing legislation under Article
19(2)-lmpugned provision not justified or saved under Article 19(2)-Hence
illegal, null and void-Constitution of India, 1950-Articles 245 and 19(J)(a).
E
Issuance of directions to Election Commissiun with regard to furnishing
of info!"mation by contesting candidates in Association for democratic
reform's case by Supreme Court-Election Commission directing wrongful
information would lead to rejection of nomination paper-Justification ofHeld: Such direction not justified- Commission directed to revise instructions.
F
Constitution of India, 1950:
G
H
Article 245-Legislature-Powers-Scope of-Held: Legislature can
remove the defect which is the cause for invalidating law by the Court by
appropriate legislation subject to legislative competence-However, it cannot
ask instrumentalities of State to disobey decisions given by Court.
Article 19(/)(a):
Freedom of speech and expression-Right to know antecedents of
candidates-Held: ls facet of Article /9(J)(a)-Such information to voter is
necessary for free and fair election in turn for survival of democracy-Further
1136
~\
PEOPLE'S UNION FOR CIVIL LIBERTIFS (PUCL) v. U.0.1.
113 7
such right is independent of statutory right under election law-Merely because A
right to vote and contest for election is a statutory right, such fundamental
right cannot be abridged by statutory provisions.
Right of voter to know antecedents of candidates-Nature of-Held: Is
not a derivative fundamental right, as there is no such concept but a
fundamental right-Hence legislature cannot nullifY it.
B
Article 21--Right of privacy-Infringement of-Declaration about
criminal antecedents of candidates an{i his assets and liabilities-Held: Such
declaration does not infringe his right to privacy.
Articles 145(3) and 19(/)(a)-Matter involving substantial question of C
law as to interpretation of constitutional provisions- Reference to five Judge
Bench-When called for-Discussed-Held: On facts, in earlier decision
Supreme Court holding right of voter to know. antecedents of candidate as his
fundamental right under Article 19(/)(a)-Decision attaining finality-Thus,
no question requiring interpretation of constitutional provisions-Hence no D
need to refer the matter to five Judge Bench in subsequent case-Also in
earlier case no plea raised that question be referred to f!Ve Judge Bench.
Article 32-Challenge of vires of the Act-Notice to Attorney Genera/-
Compliance of-Held: When Union of India is party-respondent and Solicitor
General is appearing before the Court, notice to Attorney General is not E
required-Practice and procedure.
In Union of India v. Association for Democratic Reforms* case this
Court held that a citizen/voter has the right to know about the antecedents
of the contesting candiclate and this right is a part of the fundamental right
under Article 19(l)(a). With regard to the enforcement of the right the F
Court noticed that there was void in the field, as it was not covered by
any legislative provision. Thereafter it directed the Election Commission
to fill the vacuum by requiring the candidate to furnish information
regarding past convictions/acquittals/discharges; and whether prior to six
months of filing of nomination, the candidate has been accused of any G
criminal offence punishable with two years imprisonment or more, and
charge framed or cognizance taken; his assets and liabilities and also assets
of his spouse and dependents; and the educational qualifications. Election
Commission issued directions for the im

## Text

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A
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) AND ANR.
v.
UNION OF INDIA AND ANR.
MARCH 13, 2003
B
[M.B. SHAH, P. VENKATARAMA REDD! AND D.M.
DHARMADHIKARI, JJ.]
Election Laws:
C
Representation of the People Act, 1951:
Section 33B-Prohibition regarding disclosure or furnishing of
information in respect of candidate's election, which is not required to be
disclosed or furnished under the Act or the rules made, despite directions
D issued by Supreme Court-Constitutional validity of-Held: right of voter to
know antecedents of contesting candidate is a fundamental right under Article
19(J)(a)-Such right could be abridged by passing legislation under Article
19(2)-lmpugned provision not justified or saved under Article 19(2)-Hence
illegal, null and void-Constitution of India, 1950-Articles 245 and 19(J)(a).
E
Issuance of directions to Election Commissiun with regard to furnishing
of info!"mation by contesting candidates in Association for democratic
reform's case by Supreme Court-Election Commission directing wrongful
information would lead to rejection of nomination paper-Justification ofHeld: Such direction not justified- Commission directed to revise instructions.
F
Constitution of India, 1950:
G
H
Article 245-Legislature-Powers-Scope of-Held: Legislature can
remove the defect which is the cause for invalidating law by the Court by
appropriate legislation subject to legislative competence-However, it cannot
ask instrumentalities of State to disobey decisions given by Court.
Article 19(/)(a):
Freedom of speech and expression-Right to know antecedents of
candidates-Held: ls facet of Article /9(J)(a)-Such information to voter is
necessary for free and fair election in turn for survival of democracy-Further
1136
~\
PEOPLE'S UNION FOR CIVIL LIBERTIFS (PUCL) v. U.0.1.
113 7
such right is independent of statutory right under election law-Merely because A
right to vote and contest for election is a statutory right, such fundamental
right cannot be abridged by statutory provisions.
Right of voter to know antecedents of candidates-Nature of-Held: Is
not a derivative fundamental right, as there is no such concept but a
fundamental right-Hence legislature cannot nullifY it.
B
Article 21--Right of privacy-Infringement of-Declaration about
criminal antecedents of candidates an{i his assets and liabilities-Held: Such
declaration does not infringe his right to privacy.
Articles 145(3) and 19(/)(a)-Matter involving substantial question of C
law as to interpretation of constitutional provisions- Reference to five Judge
Bench-When called for-Discussed-Held: On facts, in earlier decision
Supreme Court holding right of voter to know. antecedents of candidate as his
fundamental right under Article 19(/)(a)-Decision attaining finality-Thus,
no question requiring interpretation of constitutional provisions-Hence no D
need to refer the matter to five Judge Bench in subsequent case-Also in
earlier case no plea raised that question be referred to f!Ve Judge Bench.
Article 32-Challenge of vires of the Act-Notice to Attorney Genera/-
Compliance of-Held: When Union of India is party-respondent and Solicitor
General is appearing before the Court, notice to Attorney General is not E
required-Practice and procedure.
In Union of India v. Association for Democratic Reforms* case this
Court held that a citizen/voter has the right to know about the antecedents
of the contesting candiclate and this right is a part of the fundamental right
under Article 19(l)(a). With regard to the enforcement of the right the F
Court noticed that there was void in the field, as it was not covered by
any legislative provision. Thereafter it directed the Election Commission
to fill the vacuum by requiring the candidate to furnish information
regarding past convictions/acquittals/discharges; and whether prior to six
months of filing of nomination, the candidate has been accused of any G
criminal offence punishable with two years imprisonment or more, and
charge framed or cognizance taken; his assets and liabilities and also assets
of his spouse and dependents; and the educational qualifications. Election
Commission issued directions for the implementation of the decision.
Subsequently, Sections 33A and 338 were inserted in the Representation
of the People Act 1951 by the 3rd Amendment Act, 2002. Under section H
1138
SUPREME COURT REPORTS
(2003] 2 S.C.R.
A 33A candidate was required to disclose any case in which he has been
accused of any criminal offence punishable with imprisonment of two years
or more, and charge framed; conviction for any offence (except Section 8
offence) and sentenced to imprisonment ofone year or more. However
there was no declaration with regard to candidate's acquittal or discharge
B in criminal offences, his assets and liabilities and his educational
qualification. Section 338 provided that 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 the Act or the rules made
thereunder despite the directions issued by this Court. Hence, the present
writ petitions challenging the validity of section 338 of the Representation
C of the People Act, 1951 as inserted by Representation of the People (3rd
Amendment) Act, 2002.
Petitioners contended that Section 338 is, on the face of it, arbitrary
and unjustifiable and also void as a law cannot be passed which violates
or abridges the fundamental rights of the citizens/voters to know the
D relevant antecedents· of the candidate; that without the exercise of this
right, it will not be possible to have free and fair elections; and that by
issuing the Ordinance, the Government has arrogated to itself the power
to decide unilaterally for nullifying the decision rendered by this Cou-rt
without considering whether it can pass legislation which abridges
E fundamental right guaranteed under Article 19(l)(a).
Intervenor contended that the Amended Act is in consonance with
the judgment passed by this Court in Association for Democratic Reform 's
case and the vacuum pointed out is filled in by the enactment; that the
Amended Act is in public interest, thus, cannot be held to be illegal or
p void; that voters' right to know the antecedents of the candidate is not
part of the fundamental right, but is a derivative fundamental right on
the basis of interpretation of Article 19(1)(a) given by this Court, therefore,
it is open to the Legislature to nullify it by appropriate legislation; that
by insisting for declaration of assets of a candidate, right to privacy is
affected; that for the directions which are left out, the presumption would
G be-it is deliberate omission on the part of Legislature and, therefore, there
is no question of it being violative of Article 19(l)(a); that law pertaining
to election depends upon statutory provisions; that an enactment cannot
be struck down on the ground that Court thinks it unjustified; and that
the question involved in these petitions is a substantial question of law as
H to the interpretation of the Constitution, thus the matter may be referred
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1.
1139
to Five Judge Bench.
Respondent inter alia contended that by the impugned legislation,
most of the directions issued by the Court in Association for Democratic
Reform 's case are complied with and the vacuum pointed out is filled in
A
by the legislation; that the Legislature did not think it fit that the
remaining information as directed by this Court is required to be given B
by a contesting candidate; that as the phrase 'freedom of speech and
expression' is given the meaning to include citizens' right to know the
antecedents of the candidates contesting election, such rights could be set
at naught by legislature; that right to elect or to be elected is pure and
simple statutory right and in the absence of statutory provision' neither C
citizen has a right to elect nor has he a right to be elected because such
right is neither fundamental right nor a common law right, therefore, it
cannot be held that a voter has any fundamental right of knowing the
antecedents/assets of a candidate contesting the election; that the candidate
would be required to disclose his assets to the Speaker after being elected;
and that once the person is acquitted or discharged of any criminal offence, D
there is no necessity of disclosing the same to the voters.
Disposing of the writ petitions, the Court
Per Curiam:
l. Section 33-8 of the Representation of the People, Act, 1951, as
inserted by the Representation of the People (3rd Amendment) Act, 2002
is illegal, null and void.
2. The voter's right to know the antecedents of a candidate contesting
E
election is a facet of Article 19(1)(a) of the Constitution.
F
Per Shah J:
I.I. Section 33-8 of the Representation of the People Act, 1951 is
illegal, null and void. However, this judgment would not have any
retrospective effect but would be prospective. 11194-Fl
G
1.2. Section 33-8 which provides that 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 the Act or the Rules
made thereunder despite the directions issued by this Court, is on the face
of it beyond the legislative competence, as this Court has held that voter H
1140
SUPREME COURT REPORTS
[2003] 2 S.C.R.
A has a fundamental right under Article 19(l)(a) to know the antecedents
of a candidate which could be abridged by passing such legislation only
as provided under Article 19(2). However nothing is pointed out how
impugned legislation could be justified or saved under Article 19(2).
Further the amended Act does not wholly cover the directions issued by
B this Court. On the contrary, it provides that candidate would not be bound
to furnish certain information as directed by this Court.
(1175-H; 1193-D-F; 1193-F, G(
2. The legislature can remove the basis of a decision rendered by a
competent Court thereby rendering that decision ineffective by
C appropriate legislation if it has power over the subject matter and
competence to do so under the Constitution 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 thl! Judicial function. Legislature cannot
declare that decision rendered by the Court is not binding or is of no effect.
D Legislature is entitled to change the law with retrospective effect which
forms the basis of a judicial decision. This exercise is subject to
constitutional provision, therefore, it cannot enact a law which is violative
of fundamental right. 11193-A-D(
E
The Municipal Corporation of the City of Ahmedabad v. The New Shrock
Spg. And Wvg. Co. Ltd., (197012 SCC 280; Smt. Indira Nehru Gandhi v. Shri
Raj Narain, (1975] Supp. SCC I; P. Sambamurthy v. State of A.P., IJ 987] I
SCC 363 and Re. Cauveri Water Disputes Tribunal, 11993] Supp fl] SCC
96 (II), referred to.
,.
p
3. I. For having free and fair election, information to voters is the
necessity. The reason to have right of information with regard to the
antecedents of the candidate is that voter can judge and decide intelligently
in favour of a candidate who satisfies his criterion of being elected as M.P.
or M.L.A. It is voter's discretion whether to vote in favour of candidate
----
who is illiterate or literate; against whom criminal cases for serious or
G non-serious charges were filed but is acquitted or discharged; who does
not have sufficient assets; whose liability is minimum. The exposure to
public gaze and scrutiny is one of the surest means to cleanse our
democratic governing system and to have competent legislature.
Disinformation, misinformation, non-information all equally create an
H uninformed citizenry which would finally make democracy a mobocracy
PEOPLE'S UNION FOR CIVIL LIBERTIES (PllCL) v. ll.0.1.
J 141
and farce. [1159-A-E; 1168-G; 1194-C-D]
A
3.2. The primary duty of the judiciary is to uphold the Constitution
and the laws without fear or favour, without being biased by political
ideology or economic theory. Interpretation should be in consonance with
the Constitutional provisions, which envisage a republic democracy,
survival of which depends upon free and fair election. (1153-E-F]
B
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala,
[1973) 4 SCC 225; State of Rajasthan v. Union of India, [1977] 3 SCC 592;
State of Uttar Pradesh v. Raj Narain, [1975] ~ SCC 428; Indian Express
Newspapers (Bombay) Private Ltd. v. Union of India, (1985) 1 SCC 641; C
Ramesh Thappar v. State of Madras 1950 SCR 594; Secretary, Ministry of
Information and Broadcasting, Govt. of India v. Cricket Association of Bengal,
(1995) 2 SCC 161 and S.P. Gupta v. Union of India, (1981] Suppl. SCC 87,
referred to.
Law Commission Report, 1999; Report of National Commission to D
Review the Working of the Constitution, March 2002; Ethics Manual for
Members, Officers and Employees of the US. House of Representatives; Report
of Committee on State Funding of Elections, referred to.
4. It cannot be said that as there is no specific fundamental right of
the voter to know antecedents of a candidate, the declaration by this Court E
that such fundamental right can ·be held to be derivative, therefore, it is
open to the legislature to nullify it by appropriate legislation, since there
is no such concept of derivative fundamental rights. (1176-A-B]
5. It is established that fundamental rights enshrined in the
Constitution have no fixed content. Most of them are empty vessels into F
which each generation must pour its content in the light of its experience.
The attempt of the Court should be to expand the reach and ambit of the
fundamental rights by process of judicial interpretation. During last more
-
than half a decade, it has been so done by this Court consistently. There
C?nnot be any distinction between the fundamental rights mentioned in G
Chapter-III of the Constitution and the declaration of such rights on the
basis of the judgments rendered by this Court. It cannot be said that as
the phrase 'freedom of speech and expression' is given the meaning to
include citizens' right to know the antecedents of the candidates contesting
election, such rights could be set at naught by legislature.
[1183-H; 1184-A; 1194-D-El H
1142
SUPREME COURT REPORTS
(2003] 2 S.C.R.
A
Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors.,
1199311 SCC 645; Satwant Singh Sawhney v. D. Ramarathnam A.P.O., New
Delhi, 1196713SCR525; Gobind v. State of M.P., 119751 2 SCC 148; Sunil
Batra v. Delhi Administration, 119781 4 SCC 494; Charles Sabra) v. Supdt.
Central Jail, (1978] 4 SCC 104; M.H. Hoskot v. State of Maharashtra, 11978]
3 SCC 544; Hussainara Khatoon v. Home Secretary, State of Bihar, [1980]
B l SCC 81; Prem Shankar Shukla v. Delhi Administration, (1980] 3 SCC 526;
T. V. Vatheeswaran v. State of T.N., (1983] 2 SCC 68; Sheela Barse v. State
of Maharashtra, (1983] 2 SCC 96; A.G. of India v. Lachma Devi, [1989] Supp
I SCC 264; Parmanand Katra v. Union of India, [1989] 4 SCC 286; Shelter,
Shantistar Builders v. N.K. Totame, (1990 l SCC 520; Ramesh Thappar v.
C State of Madras, AIR (1950) SC 124; Brij Bhushan and Anr., v. The State of
Delhi, AIR (1950) SC 129; Hamdard Dawakhana and anr etc. v. Union of
India, AIR (1960) SC 554; Sakal Papers (P) Ltd. and Ors., etc. v. Union of
India, AIR (1962) SC 305; Bennett r-::!eman and Co. and Ors. et~. v. Union
of India and Ors., (1972) 2 SCC 788; Indian Express Newspapers (Bombay)
(P) Ltd. and Ors. v. Union of India and Ors., [1985) 1 SCC 641; Odyssey
D Communications P. Ltd. v. Lokvidayan Sanghatana and Ors., (1988] 3 SCC
410; S. Rangarajan v. P. Jagjivan Ram and Ors., (19891 2 SCC 574; LIC v.
Mannubhai D. Shah (1992] 3 SCC 637; Secy. Ministry of Information and
Broadcasting, Govt. of India and Ors. v. Cricket Association of Bengal and
Ors., (199512 SCC 161; S.P. Gupta v. Union of India and Anr., [1981] Suppl.
E SCC 87; State of UP. v. Raj Narain and Ors., [1975] 4 SCC 428; Dinesh
Trivedi, MP and Ors., v. Union of India and Ors., [1997] 4 SCC 306; P. V.
Narasimha Rao v. State, (CBIISPE) [1998] 4 SCC 626; C. Narayanaswamy
v. C.K. Jaffer Sharie/ and Ors., (1994] Supp. 3 SCC 170 and T.N. Seshan,
CEC of India v. Union of India and Ors., [1995] 4 SCC 611, referred to.
F
6. By declaration of a fact, which is a matter of public record that a
candidate was involved in various criminal cases, there is no question of
infringement of any right of privacy and also with regard to the
declaration of his assets. A person having assets or income is normally
-....... _/
required to disclose the same under the Income Tax Act or such similar
fiscal legislation. Not only this, but once a person becomes a candidate to
G acquire public office, such declaration would not affect his right of privacy.
This is the necessity of the day because of statutory provisions controlling
wide spread corrupt practices. (181-C-DI
R. Rajagopal alias R.R. Gopal and Anr. v. State of T.N. and Ors., (19941
H 6 sec 632, distinguished.
_ ...
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1.
\ \ 43
B.R. Kapur V, State of Tamil Nadu, 120011 7 sec 231 and Common A
Cause v. Union of India and Ors., 119961 2 SCC 752, referred to.
7.1. The right to vote or stand as a candidate for election, and in an
election petition challenging the validity of election, rights of the parties
are governed by the statutory provisions for setting aside the election
subject to the limitations envisaged therein but this would not mean that B
a citizen who has right to be a voter and elect his representative in the
Lok Sabha or Legislative Assembly has no fundamental ri'ght. Such a voter
who is otherwise eligible to cast vote to elect his representative has
statutory right under the Act to be a voter and has also a fundamental
right as enshrined in Chapter-III. Voters' fundamental right to know C
antecedents of a candidate is independent of statutory rights under the
election law. Merely because a citizen is a voter or has a right to elect his
representative as per the Act, his fundamental rights could not be
abridged, controlled or restricted by statutory provisions except as
permissible under the Constitution. If any statutory provision abridges
fundamental right, that statutory provision would be void. Thus it cannot D
be said that as there is no specific fundamental right conferred on a voter
by any statutory provision to know the antecedents of a candidate, the
directions given by this Court are against the statutory provisions.
[ 1186-A-B; 1194-B; 1186-C; 1193-H; 1194-AI
7.2. The democracy based on adult franchise is part of the basic E
structure of the Constit~tion. The right of adult to take part in election
process either as a voter or as a candidate could be restricted by a valid
law which does not offend Constitutional provisions. It cannot be held that
as there is deliberate omission in law, the right of the voter to know
antecedents of the candidates, which is his fundamental right under Article p
19(1)(a), is taken away. [1186-C-DI
N.P. Ponnuswami v. Returning Officer., [19521 SCR 218; G.N.
Narayanswami v. G. Pannerselvam and Ors. [ 1972] 3 SCC 717; C.
Narayanaswamy v. C.K. Jaffer Sharie/ and Ors., 119941 Supp. 3 SCC 170
and Jyoti Basu and Ors. v. Debi Ghosal and Ors., [19821 1 SCC 691, G
distinguished.
8. If the provisions of the law violate the Constitutional provisions,
they have to be struck down. It is made clear that no provision is nullified
on the ground that the Court does not approve the underlying P.olicy of
H
I 144
SUPREME COURT REPORTS
[2003) 2 S.C.R.
A the enactment. 11187-H; 1188-A]
Bennett Coleman & Co. and Ors. v. Union of India and Ors., (1972] 2
sec 788, relied on.
Dr. P. Nalla Thampy Terah v. Union of India and Ors., (1985) Suppl.
B sec 189, referred to.
9. While no exception can be taken to the insistence of affidavit with
regard to the matters specified in the judgment in Association for
Democratic Reform 's case, the direction to reject the nomination paper for
furnishing wrong information or concealing material information and
C providing for a summary enquiry at the time of scrutiny of the
nominations, cannot be justified. In the case of assets and liabilities, it
would be very difficult for the returning officer to consider the truth or
the details furnished with reference to the 'documentary proor. Very
often, in such matters the documentary proof may not be clinching and
D the candid.ate may be handicapped to rebut the allegation then and there.
If sufficient time is provided, he may be able to produce proof to contradict
the objector's version. It is true that the directions issued by the Election
Commission is not under challenge but at the same time prima facie it
appears that the Commission is required to revise its instructions in the
light of directions issued in Association for Democratic Reform 's case and
E as provided under the Representation of the People Act and its 3rd
Amendment. (1191-E-H; 1192-A]
10. After considering various decisions and following tests laid
therein, this Ci;urt in Association for Democratic Reform 's case held that
for survival of the democracy, right of the voter to know antecedents of a
F candidate would be part and parcel of his fundamental right. It would be
the basis for free and fair election which is a basic structure of the
Constitution. The question relating to interpretation of Article 19(I)(a) is
concluded and there is no other substantial question of law which requires
interpretation of the Constitution, Further it is apparent that in Association
G for Democratic Reform 's case, in appeal filed .by Union of India it was not.
contented that question involved in that matter was required to be decided
by five-Judge Bench, as provided under Article 145(3) of the Constitution.
The question raised in the instant case has been finally decided and no
other substantial question of law regarding the interpretation of the
Constitution survives. Hence, the matter is not required to be referred to
H five-Judge Bench. (1170-F, G; 1171-G-H]
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1.
1145
State of Jammu & Kashmir and Ors. v. Thakur Ganga Singh.and Anr., A
[1960] 2 SCR 346; Sardar Sardul Singh Caveeshar v. State of Maharashtra,
[1964) 2 SCR 378 and Union of India v. Association for Democratic Reforms.,
[2002) 5 sec 294, referred to.
11. It cannot be said that notice is required to be issued to the
Attorney General as vires of the Act is challenged, because 'Union of India' B
is party respondent and on its behalf Solicitor General is appearing before
the Court. He has forcefully raised the contentions which were required
to be raised at the time of hearing of the matter. So, service of notice to
Attorney General would be nothing but empty formality. (1192-D)
Per Reddi, J (Partly dissenting):
c
1. Securing information on the basic details concerning the
candidates contesting for elections to the Parliament or State Legislature
promotes freedom of expression and therefore the right to information
forms an integral part of Article 19(l)(a). This right to information is, D
however, qualitatively different from the right to get information about
public affairs or the right to receive information through the press and
electronic media, though to a certain extent, there may be overlapping;
and also it does not stand on the same footing as right to telecast and the
right to view the sports and games or other items of entertainment through
television. (1219-C-D; 1198-E]
E
State ofU.P. v. Raj Narain., [1975) 4 SCC 428; S.P. Gupta v. Union of
India., (1981) Suppl. SCC 87; Dinesh Trivedi v. Union of India, (1997) 4
SCC 306; Secretary, Ministry of I & B v. Cricket Association of Bengal, (1995)
2 SCC 161 and Union of India v. Association for Democratic Reforms, (2002)
s sec 294, referred to.
F
2. The right to vote at the elections to the House of people or
Legislative Assembly is certainly a constitutional right though not a
fundamental right. It cannot be described merely as statutory right, pure
and simple. The right originates from the Constitution and in accordance G
with the constitutional mandate contained in Article 326, the right has been
shaped by the statute, namely, Representation of the People Act.
(1202-F, G)
NP. Ponnuswami v. Returning Officer, Namakkal Constitutency and
Ors., (1952] SCR 218 and Jyoti Basu v. Debi Ghosal, [1982] 3 SCR 318, H
1146
SUPREME COURT REPORTS
[2003] 2 S.C.R.
A distinguished.
3.1. The casting of vote in favour of one or the other candidate
tautamounts 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.
B 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. Thus the fundamental right
of freedom of expression sets in when a voter actually casts his vote.
C
[1203-B-C, D, E)
Jamuna Prasad v. Lachhi Ram, [195511 SCR 608, distinguished.
Black's Law Dictionary; Law Lexicon by Ramanatha Iyer; Collin's
Dictionary of English language 1983 reprint; A Dictionary of Modern
D Legal Usage by Garner Bryan A, 2nd Edition and New Oxford Illustrated
Dictionary, referred to.
3.2. The freedom of speech and expression cannot be so exercised as
to endanger the interest of the nation or the interest of the society, even if
the expression 'national interest' or 'public interest' has not been used in
E Article 19(2). Whenever the rare situations of the kind anticipated arise,
the Constitution and the Courts are not helpless in checking the misuse
and abuse of the freedom. Such a check need not necessarily be found
strictly within the confines of Article 19(2). [1204-F; 1205-BI
Secretary, Ministry of Information and Boradcasting, Govt. of India v.
F Cricket Association of Bengal, [19951 2 SC(' 161, referred to.
Giltow v. New York, (1924) 69 L.Ed. 1138, referred to.
4.1. The point~r.of di~closure shpelt
1
odut by this Cob~rt idn ~hed~ssociation
~
for Democratic Re1 orm s case s ou
serve as
roa
m 1cators or
G parameters in enacting the legislation for the purpose of securing the right
to information about the candidate. The directives given by this Court
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 au independent assessment in order to evaluate whether
H the items of information statutorily ordained are reasonably adequate to
-
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1.
l J 4 7
secure the right of information available to the voter/citizen. In embarking A
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.
[1209-G; 12L'-E, F, G[
4.2. If the legislature in utter disregard of the indicators enunciated B
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(l)(a). The legislative provision should be such as to promote
the right to information to a reasonable extent, if not to the fullest extent C
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. It is for the
Constitutional Court in exercise of its judicial review power to judge
whether the areas of disclosure carved out by the Legislature are D
reasonably adequate to safeguard the citizens' right to information.
[1209-H; 1210-A-CI
4.3. 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 E
unlimited right and that at any rate, it has nb fixed concept and the
legislature has freedom to choose between two reasonable alternatives. The
·shape of legislation need not be solely controlled by the directives issued
to the Election Commission to meet an ad hoc situation since the right to
information cannot be placed in straight jacket formulae and the F
perceptions regarding the extent and amplitude of this right are bound to
vary. It is not a pr'lper approach to test the validity of legislation only
from the stand-point whether the legislation implicitly and word to word
gives effect to the directives issued by the Court as an ad hoc measure
when the field was unoccupied by legislation. [1210-C-D; 1210-F)
G
5. Section 33B does not pass the test of constitutionality firstly
because 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, impermissible. The concept of freedom of
speech and expression does not remain static. The right to information
should be allowed to grow rather than being frozen and stagnated. The H
1148
SUPREME COURT REPORTS
(2003] 2 S.C.R.
A second reason is that by blocking the ambit of disclosures only to what
has been specifically provided for by the amendment, the Parliament failed
to give effect to one of the vital aspects of information, viz., disclosure of
assets and liabilities and thus failed in substantial measure to give effect
to the right to information as a part of the freedom of expression.
B
[1210-H; 1211-C, D, H; 1212-A)
6. The right to information provided for by the Parliament under
Section 33A in regard to the pending criminal cases 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
C the pending cases in which cognizance has been taken by Court from the
ambit of disclosure. Further the information regarding acquittals 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. [1220-C, D; 1214-G]
D
7. Section 75A of the Act 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. If the right to information is to be
meaningful and to serve its avowed purpose, the candidate entering the
electoral contest should be required to disclose the assets and liabilities
E together with those of spouse or dependent children. Having accepted the
need to insist on disclosure of assets and liabilities, 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 right
to information guaranteed under Article 19(l)(a).[l220-D-E; 1215-D)
F
P. V. Narasimha Rao v. State, [ 1998] 4 SCC 626 and Gob ind v. State
of M.P., [1975) 2 SCC 148, referred to.
8. The disclosure of information regarding educational qualifications
of a candidate is not an essential component of the right to information
G flowing from Article 19(l)(a). Hence the failure to provide for disclosure
of educational qualification does not infringe the freedom of expression.
[1218-C; 1220-E-F)
9. The Election Commission has to issue revised instructions to
ensure implementation of Section 33A subject to what is laid down in this
H judgment regarding the cases in which cognizance has been taken. The
~.
-
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PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) v. U.0.1.
1149
Election Commission's orders as regards disclosure of assets and liabilities A
. will still hold good and continue to be operative. However, its direction
with regard to verification of assets and liabilities by means of summary
enquiry and rejection of nomination paper on the ground of furnishing
wrong information or suppressing material information should not be
enforced. (1220-F-H]
Per Dharmadhikari J. (Concurring with Shah J. and partly dissenting
from Reddi J., as regards the nature of directives given in the Association for
Democratic Reform 's case and disclosure of the educational qualification of
candidates).
B
1.1. Citizen's fundamental right of information should be recognised C
and fully effectuated. This freedom of a citizen to participate and choose
a candidate at an election is distinct from exercise of his right as a voter
which is to be regulated by statutory law on the election like the
Representation of the People Act. [1221-E, F)
1.2. Making of law for election reform is undoubtedly a subject
exclusively of legislature. On the basis of the decision of this Court in
Association for Democratic Reform 's case and the direction made therein
to the Election Commission, the ordinance and the Representation of the
People (3rd Amendment) Act has made an attempt to fill the void in law
D
but the void has not been filled fully and does not satisfy the requirements E
for exercise of fundamental freedom of citizen to participate in election
as a well informed voter. Lack of adequate legislative will to fill the vacuum
in law for reforming the election process in accordance with the law
declared by this Court in Association for Democratic Reform 's case obligates
this Court as an important organ in constitutional process to intervene. F
This Court in Association for Democratic Reform 's case has determined the
ambit of fundamental 'right of information' to a voter. The law, as it
stands today after amendment, is deficient in ensuring 'free and fair
elections'. Therefore, Section 33B is struck down so as to revive the law
deferred by this Court in Association for Democratic Reform 's case.
(1221-F, H; 1222-A-CJ G
Union of India v. Association for Democratic Reforms, [2002) 5 SCC
294, referred to.
CIVIL ORIGINAL JURISDICTION
Writ Petition (C) No. 490 of
2002.
II
1150
SUPREME COURT REPORTS
[2003] 2 S.C.R.
A
(Under Article 32 of the Constitution of India.)
WITH
W.P. (C) Nos. 509 and 515 of 2002.
K.N. Rawal, Solicitor General, Rajinder Sachar, P.P. Rao, Ranjit Kumar,
B Sanjay Parikh, A.N. Singh, R. Chandrachud, Ms. Vandana Sudan, Abinash
K. Misra, Prashant Bhushan, Sanjeev K. Kapoor, T.K. Naveen, Vishal Gupta,
Anil Kumar Mittal, G. Balaji, Ms. Kamini Jaiswal, Ms. Bina Gupta, Ms.
Divya Roy. Prateek Jalan, Preetesh Kapur, S.N. Terdol and S. Muralidhar for
the appearing parties.
C
The Judgments of the Court were delivered by
D
SHAH, J. These writ petitions under Article 32 of the Constitution of
India have been filed challenging the validity of the Representation of the
People (Amendment) Ordinance, 2002 (no.4 of 2002) ("Ordinance" for short)
promulgated by the President of India on 24th August, 2002.
There was an era when a powerful or a rich or a strong or a dacoit aged
more than 60 years married a beautiful young girl despite her resistance.
Except to weep, she had no choice of selecting her mate. To a large extent,
such situation does not prevail today. Now, young persons are selecting
mates of their choice after verifying full details thereof. Should we not have
E such a situation in selecting a candidate contesting elections? In a vibrant
democracy-is it not required that a little voter should know bio-data of his/
her would be Rulers, Law-makers or Destiny-maker of the Nation?
Is there any necessity of keeping in dark the voters that their candidate
was involved in criminal cases of murder, dacoity or rape or has acquired the
F wealth by unjustified means? May be that he is acquitted because Investigating
Officer failed to unearth the truth or because the witnesses turned hostile. In
some cases, apprehending danger to their life, witnesses fail to reveal what
was seen by them.
Is there any necessity of permitting candidates or his supporters to use
G unaccounted money during elections? If assets are declared would it not
amount to having some control on unaccounted election expenditure?
It. is equally true that right step in that direction is taken by amending
the Representation of the People Act, 1951 (hereinafter referred to as 'the
Act') on the basis of judgment rendered by this Court in Union of India v.
H Association for Democratic Reforms, [2002] 5 SCC 294. Still however,
•
-.
PEOPLE'S UNION FOR CIVIL LIBERTIES (P'.;CL) v. UOI. [SHAH, J]
1151
question to be decided is-whether it is in accordance with what has been A
declared in the said judgment?
After concluding hearing of the arguments on 23rd October, 2002, the
matter was reserved for pronouncement of judgment. Before the judgment
could be pronounced, the Ordinance was repealed and on 28th December
2002, the Representation of the People (3rd Amendment) Act, 2002 ("Amended B
Act" for short) was notified to come into force with retrospective effect.
Thereafter, an amendment application was moved before us challenging the
validity of Section 338 of the Amendment Act which was granted because
there is no change in the cause of action nor in the wording of Section 338
of the Amended Act, validity of which is under challenge. At the request of C
teamed counsel for the respondent-Union of India, time to file additional
counter was granted and the matter was further heard on· 3 lst January 2003.
It. is apparent that there is no change in the wording (even full stop or
coma) of Sections 33A and 338 of the Ordinance and Sections 33A and 338
of the Amended Act. The said sections read as underD
"33A. Right to information.-{!) A candidate shall, apart from any
infonnation, which he is required to furnish under this Act or the
rules made thereunder in his nomination paper delivered under subsection (1) of section 33, also furnish the information as to whether-
(i) 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 court of competent jurisdiction;
E
(ii) he has been convicted of an offence other than any offence
referred to in sub-section (I) or sub-section (2), or covered F
in sub-section (3), of section 8 and sentenced to imprisonment
for one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the
. time of delivering to the returning officer the nomination paper under
sub-section (I) of section 33, also deliver to him an affidavit sworn G
by the candidate in a prescribed from verifying the information
specified in sub-section ( l ).
(3) The returning officer shall, as soon as may be after the furnishing
of infonnation to him under sub-section (I), display the aforesaid
infonnation by affixing a copy of the affidavit, delivered under sub- H
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1152
A
SUPREME COURT REPORTS
(2003] 2 S.C.R.
section (2) at a conspicuous place at his office for the information of
the electors relating to a constituency for which the nomination paper
is delivered."
338.