# UNION OF INDIA v. ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR

- **Citation:** [2002] 3 S.C.R. 696
- **Court:** Supreme Court of India
- **Decided:** 2002-05-02
- **Bench:** M.B. Shah, Bisheshwar Prasad Singh, H.K. Sema
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-association-for-democratic-reforms-and-anr-18536
- **Pages:** 34

## Headnote

Constitution of India, 1950:
Article 324-Powers of Election Commission-To issue directions for
C conducting free and fair election-Absence of amendmil!nt to that effect in
election law-Effect of-Held, even then the Election Commission has power
under Article 324 which is reservoir of power and plena1y in characterlimitation on such plenary character of power is when legislature makes a
valid law relating to election-Representation of People Act, 1951-Conduct
D of Election Rules, 1961.
Articles 32, 141and142-Power of Court to issue direction on subject
regarding which Act and Rules are silent-Authority implementing the law
has constitutional and statutory power to implement the same-Held, Court
can issue directions or orders on such subject to fill the vacuum or void till
E suitable law is enacted-legislation-Need for-Directions by Court mean
while.
F
Article 19(a/--Scope and ambit of-Right to know about candidates
contesting elections-Held, freedom of speech and expression would include
such right within its ambit.
Words and Phrases-"Superintendence, direction and control", "conduct
of all election" and "elections"-Meaning of in the context of Article 324(/)
of Constitution of India, 1950.
Respondent tiled Writ Petition for direction to implement the
G recommendation made by l 70th Report of Law Commission and Vohra
Committee Report and for a direction to the Election Commission to
provide information by amending Form 2A to 2E prescribed under the
Conduct of Election Rules, 1961.
High Court directed the Election Commission to secure the voters the
H
696
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U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS
697
following information pertaining to each candidate contesting election to A
the Parliament and to State Legislatures and the parties they present:
l. Whether the candidate is accused of any offence(s) punishable with
imprisonment? If so, the details thereof.
2. Assets possessed by candidate, his or her spouse and dependent
relations.
3. Facts giving insight the candidate's competence, capacity and
suitability for acting as parliamentarian or legislator including details of
B
his/ her educational qualification.
C
4. Information which the Election Commission considers necessary
for judging the capacity and capability of the political party fielding the
candidate for election.
In appeal to this Court, the appellant contended that High Court
could not have given direction to the Election Commission till suitable
amendments were made for the Representation of People Act, 1951 and
Conduct of Election Rules, 1961 and the direction would be of no
consequence as the Act and the Rules do not disqualify a candidate for nondisclosure of assets or pending charges in criminal cases.
Intervenor in the case contended that High Court could not have
given direction once Parliament had not amended the Act or the Rules
despite the recommendations of Law Commission and Vohra Committee;
and that the citizens do not have right to know about the personal affairs
of M.P.s and M.L.As.
Respondents contended that Article 324 of the Constitution of India
gives power to the Election Commission and the same should be interpreted
in a broad perspective.
Petitioners, in connected writ petition, contended that even if
presumed that High Court did not have jurisdiction to pass orders this
Court has jurisdiction to do so in exercise of its power under Article 142
of the Constitution.
D
E
F
G
Thus the questions for consideration were whether Election Commission H
698
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A was empowered to issue directions as ordered by High Court; and whether
a voter has right to get relevant information such as assets, qualification
and involvement in offence for being educated and informed for judging
the suitability of a candidate contesting election.
B
Partly allowing the appeal and the connected writ petition, the Court
HELD : I. I. It cannot be said that if there is no provision in
Representation of People Act, 1951 or Conduc

## Text

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A
UNION OF INDIA
v.
ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR.
MAY 2, 2002
B
[M.B. SHAH, BISHESHWAR PRASAD SINGH AND H.K. SEMA, JJ.]
Constitution of India, 1950:
Article 324-Powers of Election Commission-To issue directions for
C conducting free and fair election-Absence of amendmil!nt to that effect in
election law-Effect of-Held, even then the Election Commission has power
under Article 324 which is reservoir of power and plena1y in characterlimitation on such plenary character of power is when legislature makes a
valid law relating to election-Representation of People Act, 1951-Conduct
D of Election Rules, 1961.
Articles 32, 141and142-Power of Court to issue direction on subject
regarding which Act and Rules are silent-Authority implementing the law
has constitutional and statutory power to implement the same-Held, Court
can issue directions or orders on such subject to fill the vacuum or void till
E suitable law is enacted-legislation-Need for-Directions by Court mean
while.
F
Article 19(a/--Scope and ambit of-Right to know about candidates
contesting elections-Held, freedom of speech and expression would include
such right within its ambit.
Words and Phrases-"Superintendence, direction and control", "conduct
of all election" and "elections"-Meaning of in the context of Article 324(/)
of Constitution of India, 1950.
Respondent tiled Writ Petition for direction to implement the
G recommendation made by l 70th Report of Law Commission and Vohra
Committee Report and for a direction to the Election Commission to
provide information by amending Form 2A to 2E prescribed under the
Conduct of Election Rules, 1961.
High Court directed the Election Commission to secure the voters the
H
696
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-
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U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS
697
following information pertaining to each candidate contesting election to A
the Parliament and to State Legislatures and the parties they present:
l. Whether the candidate is accused of any offence(s) punishable with
imprisonment? If so, the details thereof.
2. Assets possessed by candidate, his or her spouse and dependent
relations.
3. Facts giving insight the candidate's competence, capacity and
suitability for acting as parliamentarian or legislator including details of
B
his/ her educational qualification.
C
4. Information which the Election Commission considers necessary
for judging the capacity and capability of the political party fielding the
candidate for election.
In appeal to this Court, the appellant contended that High Court
could not have given direction to the Election Commission till suitable
amendments were made for the Representation of People Act, 1951 and
Conduct of Election Rules, 1961 and the direction would be of no
consequence as the Act and the Rules do not disqualify a candidate for nondisclosure of assets or pending charges in criminal cases.
Intervenor in the case contended that High Court could not have
given direction once Parliament had not amended the Act or the Rules
despite the recommendations of Law Commission and Vohra Committee;
and that the citizens do not have right to know about the personal affairs
of M.P.s and M.L.As.
Respondents contended that Article 324 of the Constitution of India
gives power to the Election Commission and the same should be interpreted
in a broad perspective.
Petitioners, in connected writ petition, contended that even if
presumed that High Court did not have jurisdiction to pass orders this
Court has jurisdiction to do so in exercise of its power under Article 142
of the Constitution.
D
E
F
G
Thus the questions for consideration were whether Election Commission H
698
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A was empowered to issue directions as ordered by High Court; and whether
a voter has right to get relevant information such as assets, qualification
and involvement in offence for being educated and informed for judging
the suitability of a candidate contesting election.
B
Partly allowing the appeal and the connected writ petition, the Court
HELD : I. I. It cannot be said that if there is no provision in
Representation of People Act, 1951 or Conduct of Election Rules, 1961 the
High Court ought not to have issued such directions to the Election
Commission. In case where law is silent, Article 324 is a reservoir of power
c to act for the avowed purpose of having free and fair election. Constitution
has taken care of leading scope for exercise of residuary power by the
Commission in its own right as a creature of the Constitution in the infinite
variety of situations that may emerge from time to time in a large
democracy, as every contingency could not be foreseen or anticipated by
the enacted laws or the rules. By issuing necessary directions, Commission
D can fill the vacuum till there is legislation on the subject. The phrase
"superintendence, direction and control" in Article 324(1) should be
construed liberally empowering the election commission to issue such
orders. Power of the Commission is plenary in character in exercise thereof.
The limitation on plenary character of power is when the Parliament or
E State Legislature has made valid law relating to or in connection with
elections, the Commission is required to act in conformity with the said
provisions. 1716-C; 726-C-EJ
Kanhiya Lal Omar v. R.K. Trivedi and Ors., fl985) 4 SCC 628 and
Common Cause (A Registered Society) v. Union of India and Ors., 11996) 2
F sec 752, relied on.
1.2. The jurisdiction of the Election Commission is wide enough to
include all powers necessary for smooth conduct of elections and the word
'elections' is used in a wide sense to include the entire process of election
G which consists of several stages and embraces many steps. 1726-B)
1.3. It cannot be said that the directions issued by the High Court
are unjustified or beyond its jurisdiction. However, the said directions are
modified to the effect that the Election Commission is directed to call for
information on affidavit by issuing necessary order in exercise of its power
H under Article 324 of the Constitution of India from each candidate seeking
.
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699
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election to Parliament or a State Legislature as a necessary part of his A
nomination paper, furnishing therein, information on the following aspects in
relation to his/hers candidature :
,.
(I) Regarding conviction/acquittal/discharge in any criminal offence in
the past-If any, and regarding punishment with imprisonment or fine.
B
-
(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.
c
(3) The assets (immovable, movable, bank balances etc.) ofa candidate
and of his/her spouse and that of dependants.
( 4) Uabilities, if any, particularly whether there are a·ny over dues of
any public financial institution or Government dues.
D
A
(5) The educational qualifications of the candidate. 1728-C-G]
..
2.L 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. M.Ps. or
M.L.As are undoubtedly public functionaries. Public education is essential for E
functioning of the process of the 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. (719-A, BJ
F
Indian Express Newspapers (Bombay) Private ltd and Ors. etc. v. Union
of India and Ors., [1985[ I SCC 641 and P. V. Narasimha Rao v. State (CBI!
SPE). (1998) 4 sec 626, relied on.
2.2. Democracy cannot survive without free and fair election, without free G
and fairly informed voters. Votes cast by un-informed voters in favour of X or
Y candidate would be meaningless. One-sided information disinformation,
~
misinformation and non~information all equally create an uniformed 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. Article 19(1)(a) provides for freedom of H
700
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A 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 much.
-~
Voter's right to know antecedents including criminal past of his candidate
"
contesting election for M.P. and MLA is much more fundamental and basic
B
for survival of democracy. 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. [722-D-E; 728-A-B; 722-F)
"f
2.3. It cannot be said that information about t~e contesting candidate would
c amount to knowing personal affairs of M.Ps or MLAs. The limited information
is-whether the person who is contesting election is involved in any criminal
case and if involved what is the result? Further there are wide-spread
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
D
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. (723-D, E)
E
2.4. The word "elections" includes the entire process of election which
consists of several stages and it embraces many steps, some of which may have
an important bearing on the process of choosing a· candidate. Fair election
contemplates disclosure by the candidate of his past including the assets held
by him so as to give a proper choice to the candidate according to his thinking
F
and opinion. If on affidavit a candidate is required to disclose the assets held
~
...
by him at the time of election, voter can decide whether he could be re-elected
even in case where he has collected tons of money. [726~F, H; 727-A)
3.1. Though it is not possible for this Court to give any directions for
amending the Act or the statutory Rules. It is on the Parliament to amend the
G Act and the Rules. It is also established law that no direction can be given
which would be contrary to the Act and the Ru.Jes. However, in case when the
Act or Rules are silent on a particular subject and the Authority implementing
the same has constitutional or statutory power to implement it, the Court can
-1
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necessarily issue directions or orders on the said subject to fill the vacuum
or void till the suitable law is enacted. (712-B, D)
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U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 701
,
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.A.
Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, A
[19781 l sec 405, referred to.
3.2. This Court would have ample power to direct the Commission to fill
the void, in absence of suitable legislation, covering the field and the voters
are required to be well-informed and educated about contesting candidates so
that they can elect proper candidate by their own assessment It is the duty of B
the executive to fill the vaccum by executive orders because its field is
conterminous with that of the legislature and where there is inaction by the
executive, for whatever reason, the judiciary must step in, in exercise of its
constitutional obligations to provide a solution till such time the legislature
acts to perform its role by enacting proper legislation to cover the field.
C
[725-C-D[
Vishakha v. State o[Rajasthan, [1997] 6 SCC 341, relied on.
3.3. If the field meant for legislature and executive is left unoccupied
detrimental to the public interest, this Court would have ample jurisdiction D
under Article 32 read with Articles 141and142 of the Constitution to issue
necessary directions to the Executive to subserve public interest. [727-G, H]
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No.
7178 of2001.
From the Judgment and Order dated 2.11.2000 of the Delhi High Court
in C.W.P. No. 7257of1999.
WITH
W.P. (C) No. 294 of200I.
, ,>.
Harish N. Salve, Solicitor General, Rajinder Sacchar, Ashwini Kumar,
' K.K. Venugopal, Sanjay R. Hegde, Satya Mitra, Ms. Aprajita Singh for S.N.
Terdol, Sanjay Parikh, R.R. Chandrachud, Ranji Thomas, Javed M. Rao, S.
Muralidhar, S.K. Mendiratta, S. Vallinayagam, Shreyas Jayasinha, Ms. Kamini
E
F
Jaiswal and Ms. Aishwarya Rao for the appearing parties.
G
The Judgment of the Court was delivered by
SHAH, J. Short but important question involved in these matters is 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 H
A
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702
SUPREME COURT REPORTS
[2002] 3 S.C.R.
is of utmost importance for governance of the country, whether, before casting
votes, voters have a right to know relevant particulars of their candidates?
Further connected question is-whether the High Court had jurisdiction to
issue directions, as stated below, in a writ petition filed under Article 226 of
the Constitution of India?
Before dealing with the aforesaid questions, we would ref~r to the br:ef
facts as alleged by the Petitioner-Association for Democratic Reforms in Writ
Petition No. 7257 of 1999 filed before the High Court of Delhi for direction to
implement the recommendations made by the Law Commission in its l 70th
Report and to make necessary changes under Rule 4 of the Conduct of
Election Rules, 1961. It has been pointed out that Law Commission of India
had, at the request of Government of India, undertaken comprehensive study
of the measures required to expedite hearing of election petitions and to have
a thorough review of the Representation of the People Act, 1951 (hereinafter
referred to as "the Act") so as to make the electoral process more fair,
transparent and equitable and to reduce the distortions and eviJ.s that have
crept into the Indian electoral system and to identify the areas where the legal
provisions required strengthening and improvement. It is 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 has also suggested that true and correct statement of assets owned
by the candidate, his/her spouse and dependant relations should also be
disclosed. Petitioner has also referred Para 6.2 of the report of the Vohra
Committee of the Government oflndia, Ministry of Home Affairs, which reads
as follows:
"6.2. Like the Director CBI, the DIB has also stated that there has been
a rapid spread and growth of criminal gangs, armed senas, drug
Mafias, smuggling gang, drug peddlers and economic lobbies in the
country which have, over the years, developed an extensive network
of contacts with the bureaucrats/Government functionaries at the
local levels, politicians, media pers9ns and strategically located
individuals in the non State sector. Some of these Syndicates also
have international linkages, including the foreign intelligence agencies.
In this context the DIB has given the following examples -
(i)
In certain States like Bihar, Haryana and UP, these gangs enjoy
the patronage of local level politicians, cutting across party lines
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U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS (M.B. SHAH, J.] 703
(ii)
(iii)
(iv)
and the protection of Governmental functionaries. Some political A
leaders become the leaders of these gangs, armed senas and over
the years get themselves elected to local bodies, State Assemblies
and the national Parliament. Resultantly, such elements have
acquired considerable political clout seriously jeopardising the
smooth functioning of the administration and the safety of life B
and property of the common man causing a sense of despair and
alienation among the people;
The big smuggling Syndicates having .international linkages have
spread into and infected the various economic and financial
activities, including havala transactions, circulation of black money c
and operations of a vicious parallel economy causing serious
damage to the economic fibre of the country. These Syndicates
have acquired substantial financial and muscle power and social
respectability and have successfully corrupted the Government
machinery at all levels and yield enough influence to make the
task of Investigating and Prosecuting agencies extremely difficult; D
even the members of the Judicial system have not escaped the
embrace of the Mafia;
Certain elements of the Mafia have shifted to narcotics, drugs and
weapon smuggling and established narco .. terrorism networks
specially in the States of J&K, Punjab, Gujarat and Maharashtra. E
The cost of contesting elections has thrown the politician into the
lap of these elements and led to a grave compromise by officials
of the preventive/detective systems. The virus has spread to
almost all the centres in the country, the coastal and the border
States have been particularly affected;
F
The Bombay bomb blast case and the communal riots in Surat and
Ahmedabad have demonstrated how the India underworld has
been exploited by the Pak IS! and the latter's network in UAE to
cause sabotage subversion and communal tension in various
parts of the country. The investigations into the Bombay bomb
blast cases have revealed expensive linkages of the underworld G
in the various governmental agencies, political circles, business
sector and the film world."
It is also contended that despite the Reports of the Law Commission
and Vohra Committee, successive governments have failed to take any action
and, therefore, petition was filed for implementation of the said reports and H
704
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A 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. 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
B of the People Act, 1951 or the Electiqn 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
C for making an estimate for himself-as to whether the person who is contesting
the election has a background making him worthy of his vote, by peeping into
the past of the candidate. 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 well
D being of the country. The Court directed the Election Commission to secure
to voters the following information pertaining to each of the candidates
contesting election to the Parliament and to the State Legislature and the
parties they represent:-
l.
Whether the candidate is accused of any offence(s) punishable
E
with imprisonment? If so, the details thereof.
F
2.
Assets possessed by a candidate, his or her spouse and dependant
relations?
3.
Facts giving insight to candidate's competence, capacity and
suitability for acting as parliamentarian or legislator including
details of his/her educational qualifications;
4.
Information which the election commission considers necessary
for judging the capacity and capability of the political party fielding
the candidate for election to Parliament or the State Legislature.
G
That order is challenged by Union of India by filing the present appeal.
On behalf of Indian National Congress I.A. No.2 of 2001 is also filed for
impleadment/intervention in the appeal filed by the Union of India by inter
alia contending that the High Court ought to have directed the writ petitioners
---
to approach the Parliament for appropriate amendments to the Act instead of
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H directing the Election Commission of India to implement the same. I.A. for
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U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.\l. SHAH, J.] 705
intervention is granted.
A
Further, People's Union for Civil Liberties (PUCL) has filed Writ Petition
No. 294 of 2001 under Article 32 of the Constitution praying that writ, order
or direction be issued to the respondents- (a) to bring in such measures which
provide for declaration of assets by the candidate for the elections and for
such mandatory declaration every year during the tenure as an elected B
representative as MP/MLA; (b) to bring in such measures which provide for
declaration by the candidate contesting election whether any charge in respect
of any offence has been framed against him/her; and (c) to frame such
guidelines under Article 141 of the Constitution by taking into consideration
l 70th Report of Law Commission of India.
C
SUBMISSIONS:
We have heard the learned counsel for the parties at length. Mr. Harish
N. Salve, learned Solicitor General appearing for Union of India submitted that
till suitable amendments are made in the Act and Rules thereunder, the High D
Court should not have given any direction to the Election Commission. He
referred to various Sections of the Act and submitted that Section 8 provides
for disqualification on conviction for certain offences and Section 8A provides
for disqualification on ground of corrupt practices. Section 32 provides
nomination of candidate for election if he is qualified to be chosen to fill that
seat under the provisions of the Constitution and the Act or under the
provisions of the Government of Union Territories Act, 1963. Thereafter,
elaborate procedure is prescribed for presentation of nomination paper and
requirements for a valid nomination. Finally, Section 36 provides for scrutiny
of nominations and empowers the returning officer to reject any nomination
on the following grounds
(a)
that on the date fixed for the scrutiny of nominations the candidate
either is not qualified or is disqualified for being chosen to fill the
seat under any of the following provisions that may be applicable,
namely
Articles 84, l 02, 173 and 191,
Part II of this Act and sections 4 and 14 of the Government of
Union Territories Act, 1963 (20 of 1963); or
(b)
that there has been a failure to comply with any of the provisions
E
F
G
of Section 33 or Section 34; or
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(2002] 3 S.C.R.
A
(c)
that the signature of the candidate or the proposer on the
nomination paper is not genuine.
It is his submission that it is for the political parties to decide whether
such amendments should be brought and carried out in the Act and the
Rules. He further submitted that as the Act or the Rules nowhere disqualify
B a candidate for non-disclosure of the assets or pending charge in a criminal
case and, ther, .f"ore, directions given by the High Court would be of no
conseq'" -,,._•; fllld such directions ought not to have been issued.
Supplementing the aforesaid submission, Mr. Ashwini Kumar, learned
senior counsel appearing on behalf of intervenor-Indian National Congress
C submitted that the Constituent Assembly had discussed and negatived
requirement of educational qualification and possession of the assets to
contest election. For that purpose, he referred to the Debates in the Constituent
Assembly. He submitted that 3/4th of the population is illiterate and providing
education as a qualification for contesting election was not accepted by the
D Constituent Assembly. Similarly, prescribing of property qualification for the
candidates to contest election was also negatived by the Constituent Assembly.
He, therefore, submitted that furnishing of information regarding assets and
educational qualification of a candidate is not at all relevant for contestiQg
election and even for casting votes. Voters are not influenced by the
educational qualification or by possession of wealth by a contesting candidate.
E It is his say that the party whom he represents is interested in purity of
election and wants to stop ·entry of criminals in politics or its criminalisation
but it is for the Parliament to decide the said question. It is submitted that
delicate balance is required to be maintained with regard to the jurisdiction
of the Parliament and that of Courts and once the Parliament has not amended
F the Act or the Rules despite the recommendation made by the Law Commission
or the report submitted by the Vohra Committee, there was no question of
giving any direction by the High Court to the Election Commission.
Mr. K.K. Venugopal, learned senior counsel appearing on behalf of
Election Commission exhaustively referred to the counter affidavit filed on
G behalf of Election Commission. At this stage, we would refer to some part
from the said affidavit. It is stated 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
H criminalisation of politics; it is widely believed that there is criminal nexus
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U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 707
between the political parties and anti-social elements which is leading to A
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
infonnation 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
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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 E
dues and charges on his/her properties.
For other directions issued by the High Court, it has been pointed out
that it is for the political parties to project the capacity and capability of a
candidate and that directions issued by the High Court are required to be set F
aside. Finally, the Election Commission has suggested as under:-
"!. Each candidate for election to Parliament or a State Legislature
should submit, along with his nomination paper, a duly sworn affidavit,
for the truth of which he is liable, as a necessary part of his nomination
paper, furnishing therein, information on the following aspects in G
relation to his candidature:
(i)
whether the candidate is convicted of any offence in any case in
the past, and punished with imprisonment or fine; if so, the details
thereof, together with the details of any pending appeals or
applications for revision in any such cases of conviction;
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(ii)
whether the candidate is accused in any pe~ing case, of any
offence punishable with imprisonment for two years or more, and
in which charges have been framed against him by the competent
court of law, if so, the details thereof, together with the details of
any pending appeals or applications for revision in respect of the
charges framed in any such c~ses;
(iii) whet'ier the candidate is an income tax and/or wealth tax assessee
:::;·,a has been paying his tax(es) and filing his returns regularly,
wherever he is liable, and if so, the financial year for which the
last income tax/wealth tax return has been filed;
(iv) the liabilities of the candidate, his/her spouse and minor children;
that is to say, over-dues to any public financial institutions, any
government dues, and charges on his/her properties;
(v) the educational qualifications of the candidate.
II. The information by each candidate in respect of all the foregoing
aspects shall be furnished by the candidate in a format to be prescribed
by the Election Commission and shall be supported by a duJy sworn
affidavit, making him responsible for the correctness of the information
so furnished and liable for any false statement.
III. The information so furnished by each candidate in the prescribed
format and supported by a duly sworn affidavit shall be disseminated
by the Election Commission, through the respective Returning Officers,
by displaying the same on the notice board of the Returning Officer
and making the copies thereof available freely and liberally to all other
contesting candidates and the representatives of the print and
electronic media.
If any rival candidate furnishes information to the contrary, by means
of a duly sworn affidavit, then such affidavit of the rival candidate
may also be disseminated alongwith the affidavit of the candidate
concerned.
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
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U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH. J.] 709
be an incomplete non1ination paper within the meaning of section A
33(1) of the Representation of the People Act, 1951 and shall suffer
consequences according to law.
The aforesaid suggestions made by the Election Commission would
certainly mean that except certain modifications, Election Commission virtually
supports the directions is.sued by the High Court and that candidates must B
be directed to furnish necessary information with regard to pending criminal
cases as well as assets and educational qualification.
Mr. Rajinder Sachhar, learned senior counsel appearing on behalf of the
petitioners relied upon the decision rendered by this Court in Vineet Narain C
and Ors. v. Union of India and Anr., [1998] I SCC 226 and 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. He, D
therefore, submitted that presuming that the High Court has no jurisdiction
to pass orders to fill in the gaps, this Court can do so by exercising its powers
under Article 142 which have the effect of law.
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In Vineet Narain 's case (Supra), this Court dealt with the writ petitions
under Article 32 of the Constitution of India brought in public interest wherein
allegation was against the Central Bureau of Investigation (CBI) of inertia in
matters where accusation made was against high dignitaries. Primary question
considered was-whether it was within the domain of judicial review and it
could be an effective instrument for activating the investigating process
which is under the control of the executive? While discussing the powers of F
this Court, it was observed:
"The powers conferred on this Court by the Constitution are
ample to remedy this defect and to ensure enforcement of the concept
of equality. There are ample powers conferred by Article 32 read with
Article 142 to make orders which have the effect of law by virtue of G
Article 141 and there is mandate to all authorities to act in aid of the
orders of this Court as provided in Article 144 of the Constitution. In
a catena of decisions of this Court, this power has been recognised
and exercised, if need be, by issuing necessary directions to fill the
vacuum till such time the legislature steps in to cover the gap or the H
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executive discharges its role."
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[Emphasis supplied]
In paragraph 51, the Court pointed out previous precedents for exercise
of such power:
"In exercise of the powers of this Court under Article 32 read with
Article 142, guidelines and directions have been issued in a large
number of cases and a brief reference to a few of them is sufficient.
In Erach Sam Kanga v. Union of India, [W.P. No. 2632 of 1978
decided on 20.3:1979] the Constitution Bench laid down certain
guidelines relating to the Emigration Act. In Lakshmi Kant Pandey v.
Union of India, [1984] 2 SCC 244 (In ri:-, Foreign Adoption), guidelines
for adoption of minor children by foreigners were laid down. Similarly
in State of W.B. v. Sampat Lal, [1985] 1 SCC 317, K. Veeraswami v.
Union of India [1991] 3 SCC 655, Union Carbide Corpn. v. Union of
India, [1991 4 SCC 584, Delhi Judicial Service Association v. State
of Gujarat, (Nadiad Case) [1991] 4 SCC 406, Delhi Development
Authority v. Skipper Construction Co. (P) Ltd., [1996] 4 SCC 622 and
Dinesh Trivedi, MP. v. Union of India, [1997] 4 SCC 306 guidelines
were laid down having the effect of law, requiring rigid compliance. In
Supreme Court Advocates-on-Record Association v. Union of India,
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(IInd Judges case) [1993] 4 sec 441, a nine-Judge Bench laid down
guidelines and norms for the appointment and transfer of Judges
which are being rigidly followed in the matter of appointments of High
Court and Supreme Court Judges and transfer of High Court Judges.
More recently in Vishaka v. State of Rajasthan, [1997] 6 SCC 241
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elaborate guidelines have been laid down for observance in workplaces
relating to sexual harassment of working women. In Vishaka (supra)
it was said (SCC pp. 249-50, para 11)
"11. The obligation of this Court under Article 32 of the Constitution
for the enforcement of these fundamental rights in the absence of
legislation must be viewed along with the role of judiciary envisaged
in the Beijing Statement of Principles of the Independence of Judiciary
in the LAW ASIA region. These principles were accepted by the Chief
Justices of Asia and the Pacific at Beijing in 1995 (As amended at
Manila, 28th August, 1997) as those representing the minimum
standards necessary to be observed in order to maintain the
independence and effective functioning of the judiciary. The objectives
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U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 7J.1
of the judiciary mentioned in the Beijing Statement are:
"Objectives of the Judiciary:
10. The objectives and functions of the Judiciary include the
following:
A
(a)
to ensure that all persons are able to live securely under the rule B
of law;
(b) to promote, within the proper limits of the judicial function, the
observance and the attainment of human rights; and
(c)
to administer the law impartially among persons and between C
persons and the State."
Thus, an exercise of this kind by the court is now a well-settled practice
which has taken firm roots in our constitutional jurisprudence. This exercise
is essential to fill the void in the absence of suitable legislation to cover the
field.
Ms. Kamini Jaiswal, learned counsel appearing on behalf of respondents
in support of the decision rendered by the High Court referred to the decision
in Kihoto Hollohan v. Zachillhu and Ors., [1992] Supp 2 SCC 651 wherein
while considering the validity of the Tenth Schedule of the Constitution, the
Court observed "democracy is a part of the basic structure of our Constitution;
and rule ·of law, and free and fair elections are basic features of democracy.
One of the postulates of free and fair elections is provisions for resolution
of election disputes as also adjudication of disputes relating to subsequent
dis-qualifications by an independent authority". She, therefore, contended
that for free and fair elections and for survival of democracy, entire history,
background and the antecedents cf the candidate are required to be disclosed
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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. For
interpreting Article 324, she submitted that this provision outlines broad and
general prinCiples giving power to the Election Commission and it should be
interpreted in a broad perspective as held by this Court in various decisions. G
In these matters, questions requiring consideration areI.
Whether Election Commission is empowered to issue directions
as ordered by the High Court?
2.
Whether a voter-a citizen of this country has right to get relevant H
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information, such as, assets, qualification and involvement in
offence for being educated and informed for judging the suitability
of a candidate contesting election as MP or MLA?
For deciding the aforesaid questions, we would proceed on the following
accepted legal position.
At the outset, we would say that it is not possible for this Court to give
any directions for amending the Act or the statutory Rules. It is for the
Parliament to amend the Act and the Rules.