A forceful reiteration

Print edition : April 11, 2003

The Supreme Court overrules amendments made by Parliament to the Representation of the People Act that sought to nullify requirements set for candidates to furnish their antecedents including any criminal record, as had been ordered by the court and notified by the Election Commission.

in New Delhi

FREEDOM of speech and expression is one of the key fundamental rights guaranteed to all citizens by the Constitution under Article 19(1) (a). The test of the validity of any legislative measure restricting this right is whether it is justified under any of the legitimate grounds mentioned in Article 19(2). These grounds include the protection of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or matters relating to contempt of court, defamation or incitement to an offence. A three-member Bench of the Supreme Court on March 13 struck down Section 33B of the Representation of the People Act (RPA), as introduced by Parliament in an amendment Act recently, because it did not pass this test.

In its May 2, 2002 judgment in Association of Democratic Reforms vs. Union of India , the Supreme Court had concluded that for the survival of democracy, the right of the voter to know the antecedents of an electoral candidate would be part and parcel of the fundamental right to freedom of speech and expression. It would be the basis for a free and fair election process, which is part of the basic structure of the Constitution, the court had said (Frontline, June 21, 2002). It then issued specific directions to the Election Commission (E.C.), to make information with regard to any criminal background, wealth and education of candidates available to voters before elections.

The March 13 judgment reiterates the landmark verdict of May 2, 2002. After the E.C. fulfilled this directive by issuing the necessary notification on June 28, 2002, the political class discovered certain flaws in the disclosure norms as dictated by the Supreme Court. It was felt that it would be more appropriate to seek details of the wealth of a candidate and his/her spouse and dependents, after he/she has won the election, rather than before as directed by the Supreme Court. Seeking details of the educational qualifications of candidates was considered not only unnecessary but against the spirit of the debates in the Constituent Assembly which rejected a proposal to prescribe minimum educational qualifications for candidates. Barring these two aspects, all political parties reached a broad consensus on the need to introduce legislation to ensure that the relevant criminal antecedents, if any, of the candidates, were made available to voters (Frontline, August 2, 2002). In order to give effect to this, the Centre issued an ordinance in August 2002. President A.P.J. Abdul Kalam reluctantly gave his assent to it after the Union Cabinet refused to consider his initial objections to the draft of the ordinance on the grounds that it fell short of the Supreme Court's directives. (Frontline, September 13, 2002).

During its winter session last year, Parliament passed the necessary legislation to replace that ordinance. The People's Union for Civil Liberties (PUCL), Lok Satta, the Association for Democratic Reforms and other civil society initiatives filed a public interest petition in the Supreme Court challenging first the validity of the ordinance, and later the RPA (Amendment) Act on the grounds that Section 33B, as introduced by the Act, sought to nullify the court's May 2 judgment and, therefore, was violative of Article 19(1)(a).

On March 13, a Supreme Court Bench comprising Justices M.B. Shah, P. Venkatarama Reddi and D.M. Dharmadhikari, after hearing the petitioners, and the respondent, the Union of India, and the intervener, the Bharatiya Janata Party, declared Section 33B to be null and void. The Bench found Section 33B vulnerable on several counts. This Section required the candidate to furnish information only under the Act and the Rules, and not otherwise. Under Section 33A (also introduced in the amendment Act), every candidate is required to furnish information as to whether 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; and whether he has been convicted of an offence other than that referred to in Section 8(1)(2) or (3), and sentenced to imprisonment for one year or more. Section 33B made it clear that no candidate shall be liable to furnish any information in respect of his election, which is not required to be disclosed under the Act or the Rules made thereunder, notwithstanding anything contained in any judgment, decree or order of any court or any direction or instruction issued by the E.C.

Justice Shah gave the opinion that the legislature could remove the basis of a decision rendered by a court thereby rendering that decision ineffective, but that it has no power to ask the instrumentalities of the state to disobey or disregard a decision given by the court. He pointed out that as the Supreme Court had held that a fundamental right guaranteed under Article 19(1)(a) allowed the voter to know the antecedents of a candidate, Parliament cannot enact a law taking away this right through Section 33B of the RPA. He underlined that the Union of India did not show how this Section could be saved under Article 19(2).

Justice Venkatarama Reddi, in his order, held that Section 33B chained and circumscribed the ambit, amplitude and parameters of the voters' right to secure information about a candidate for all time to come. To him, a blanket ban on dissemination of information other than the kind that is spelt out in the enactment, irrespective of the need of the hour and future exigencies and expedients, is impermissible. "The right to information should be allowed to grow rather than being frozen and stagnated; but the mandate of Section 33B prefaced by the non obstante clause impedes the flow of such information conducive to the freedom of expression," Justice Venkatarama Reddi ruled.

The effect of the court's order is that part of the E.C.'s directive, issued on June 28, 2002, requiring candidates to furnish information on assets and liabilities and their educational qualifications stands revived. The same directive requires candidates to furnish information about any pending case against him for any offence punishable with imprisonment for two years or more, and which charges have been taken cognisance of by a court of law, and acquittals or discharges in any criminal case. The amended Act did not include these aspects of a candidate's criminal antecedents because political parties maintained that such details had no relevance to the voting decision. Even though the March 13 judgment appears to defend the voters' right to know, and resists unjustified legislative encroachment on that right, it has certain inconsistencies.

While enacting Section 33B of the RPA, the intention of the lawmakers was not to restrict this right without valid justification. Insofar as the Bench did not share Parliament's justification for resorting to the step, it would seem to be a difference in perception rather than any substantive disagreement. There can be no complaint if a candidate voluntarily lets his voter know about all his antecedents. Similarly, if a voter seeks to know the antecedents of a candidate through the mass media and by his own efforts, there could be no grievance. Section 33B did not ipso facto infringe on the voter's right to know, as it did not seek to place any curbs on the means to fulfil this right. The problem arises only when it is assumed - as Justice Venkatarama Reddi's judgment argues - that this right cannot materialise without state intervention. "The state or its instrumentality has to compel a subject to make the information available to (the) public, by means of legislation or orders having the force of law," Justice Venkatarama Reddi held. Some observers wonder whether if the court strikes down a law because Parliament had not followed this stipulation, it would amount to the court implicitly assuming the power to direct legislation, which is not a situation envisaged in the Constitution.

The Central government argued before the Bench that the freedom of the legislature to identify and evolve specific areas in which such information could be made public cannot be curtailed by reference to ad hoc directives given by the Supreme Court in the pre-ordinance period, and that the legislative wisdom of Parliament, especially in matters relating to elections, cannot be questioned. The Supreme Court's May 2 judgment was an ad hoc direction, insofar as it felt the need to step in because of the existing legislative vacuum on the issue at that point. As Justice Venkatarama Reddi pointed out the five directives in that judgment only reflected the perception and tentative thinking of the court at a point of time when the legislature did not address itself to the question. In his view, the points of disclosure spelt out in the May 2 judgment should serve as broad indicators or parameters in enacting the legislation for the purpose of securing this right. Though a certain extent of deviation from the aspects of disclosure spelt out by the court is not impermissible, a substantial departure cannot be countenanced, he clarified.

On the face of it, the language of Section 33B, insofar as it ruled out further sharing of information about candidates with voters - beyond what was provided in Section 33A - seems to have invited the wrath of the Bench. This has seemingly prevented the Bench from considering the intention of the law-makers in including this Section. Parliament's objective was apparently to remove certain flaws inherent in the May 2 judgment.

Parliament felt that information about certain antecedents of candidates had no relevance to voting decisions. As the May 2 judgment reveals, this information is required only when a candidate seeks re-election, so that the voter is in a position to find out whether after being elected the candidate had misused his elected position to acquire illegitimate wealth. Justice Venkatarama Reddi's judgment has the same logic. The amended Act rightly includes Chapter VIIA to ensure that MPs and State legislators declare their assets and liabilities to the Presiding Officers of the House concerned. It could be said that Parliament ought to have made this requirement mandatory at least at the beginning and end of a member's tenure. The amended Act leaves it to the Rules to be framed by the legislatures and Parliament to determine how this requirement could be enforced.

Curiously, Justices Shah and Venkatarama Reddi differ on the objectives of this directive in the May 2 judgment. Justice Shah believes that if candidates' assets are declared, it would enable the public to verify whether unaccounted money played a part in the election. But Justice Venkatarama Reddi disagreed with the view. Justice Dharmadhikari did not reveal his views on this issue.

Justice Shah, for instance, admitted that it would be very difficult for a returning officer to verify the genuineness or otherwise of details furnished with documentary proof in the case of assets and liabilities. Therefore, he felt that the E.C.'s direction to reject nomination papers for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of nominations, cannot be justified. He suggested that the E.C. revise its instructions in the light of the May 2 judgment and the amended Act. Justice Venkatarama Reddi concurred with this view. In the absence of a penal clause, it makes little sense to suggest that this directive of the court should be complied with even at the risk of making available wrong information to the voter.

In Justice Venkatarama Reddi's view, the disclosure of information regarding educational qualifications is not an essential component of the right to information flowing from Article 19(1)(a). Justices Shah and Dharmadhikari, however, did not find it necessary to dwell on the subject, as in their view the law on this had assumed finality with the May 2 judgment. On the contrary, during the debate on the amendment Bill, many MPs felt that the framers of the Constitution were opposed to the idea.

The March 13 verdict has created an apprehension among the political class whether the judiciary has overstepped its limits, and upset the doctrine of separation of powers between the judiciary and the legislature. Within the judiciary, however, the question whether the matter deserved to be referred to a five-member Constitution Bench as per the mandate of Article 145(3) could be a point of debate: Justice Venkatarama Reddi suggested this as he felt that a new dimension had been added to the concept of freedom of expression so as to bring within its ambit a new variety of the right to information. However, he refrained from doing so because no such request was made at the hearings that preceded it, and all political parties invited the decision of the three-Judge Bench then. Whatever the merits of the court's decision, it remains to be seen whether it will actually help purify the country's electoral process.

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