The voter's right to know

Print edition : June 08, 2002

The Supreme Court directs the Election Commission to make information on candidates' criminal background, wealth and education available to the voters during elections.

THE holding of free and fair elections at regular intervals is essential for the survival of democracy. The degree of success of this process would, in turn, depend on the extent of awareness that voters have about the candidates. Their right to gain material information about the candidates is thus intrinsic to the democratic process. With the laws and rules governing the conduct of elections revealing a curious 'silence' on this aspect, the judiciary has now stepped in to initiate a significant electoral reform measure.

On May 2, a Supreme Court Bench comprising Justices M.B. Shah, Bisheshwar Prasad Singh and H.K. Sema upheld and modified a Delhi High Court order of November 2000 in Association of Democratic Reforms vs. Union of India. The High Court had held that in order to help voters to make the right choice, it was essential that a candidate's past should not be kept under wraps. The High Court had directed the Election Commission (E.C.) to secure certain types of information pertaining to each of the candidates contesting elections to Parliament and State legislatures and the parties they represent.

The High Court wanted the E.C. to reveal details relating to any candidate accused of an offence punishable with imprisonment; of assets possessed by him/her, spouse and dependants; of the candidate's competence, capacity and suitability for law-making, his/her educational qualifications; and the ability to judge the capacity and capability of the political party fielding the candidate.

The Central government, which challenged the order in the Supreme Court, maintained that till suitable amendments were made in the Representation of the People Act (RPA) and the Rules made under it, the High Court should not have given any direction to the E.C. The Congress(I), which intervened in the case, also questioned the High Court's competence to direct the E.C. rather than the petitioners, the Association of Democratic Reforms, a non-governmental organisation consisting of some academics and activists, to approach Parliament for appropriate amendments to the RPA.

The Supreme Court Bench has now made it clear that it was in favour of Parliament amending the RPA and the Rules under it. However, the Bench underlined the legally settled position that in a situation where the Act or the Rules are silent on a particular subject and the authority implementing the same has constitutional or statutory power to implement it, the court can issue directions to fill the vacuum until legislation is enacted. Further, the Bench pointed out that the phrase 'conduct of elections' under Article 324 is held to be of such wide amplitude as to include the E.C.'s power to make all necessary provisions to conduct free and fair elections.

The Supreme Court modified the High Court's judgment and directed the E.C. to reveal whether up to six months prior to filing of nomination, a candidate had been accused in any case that is pending, of any offence punishable with imprisonment up to two years or more, and in which charges have been framed or cognisance has been taken by a court of law.

This is preceded by a general requirement that the E.C. should reveal whether the candidate was convicted or acquitted of any criminal offence in the past, and whether he was punished with imprisonment or fine.

Will the mere knowledge of a candidate's criminal past dissuade a voter from voting in his favour? In its judgment, the Bench said: "The little man (the voter) may think over before making his choice of electing law breakers as law makers."

The Court's directive to the E.C. is not based on the assumption that at present voters are ignorant of candidates' criminal past. But it is hoped that official disclosure of information relating to candidate's criminal background would help those voters who intend to make a rational choice on the basis of facts. Even if there are only a few such rational voters, the law, as interpreted by the Court, could help them. The Court's order would only result in giving a choice to the voters, by making the process a little more transparent. According to observers, if the voters are determined to vote in favour of those with a criminal past, the E.C.'s move cannot influence their subjective decision, which could be based on various other factors.

The Supreme Court further modified the High Court's order to direct the E.C. to reveal details of assets - immovable and movable - of a candidate and of his/her spouse and dependants. The Supreme Court held that by implication, married sons and daughters of candidates or their parents could not be described as dependants. The Supreme Court also sought details of candidates' liabilities, if any, particularly whether there were any over- dues to any public financial institution or government dues.

THE Supreme Court nullified the High Court's directive to the E.C. to seek details to judge the capacity of a political party fielding the candidate. But the Court retained the directive relating to the educational qualifications of the candidate. The Court probably allowed this part of the High Court's order because the information being sought would not determine a candidate's eligibility to contest.

The Supreme Court has held that furnishing information relating to candidates was a necessary part of the nomination papers. It has asked the E.C. to draw up within two months the norms and modalities in order to carry out and give effect to its directions. In a letter to Union Law Minister Arun Jaitley on May 14, the E.C. pointed out that the most efficacious manner of implementing the judgment of the Supreme Court would be to amend Forms 2A to 2E, which are forms of nomination papers to be filed at elections to the Parliament and State legislatures that are appended to the Conduct of Elections Rules, 1961. The E.C. submitted revised Forms 2A to 2E incorporating the necessary changes seeking additional details as specified in the judgment, and asked the government to take steps to effect these amendments at the earliest.

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