In the Supreme Court of India
|Name of the case||Union for Civil Liberties (PUCL) and Another v. Union of India and Another|
|Citation||AIR SC 2363|
|Year of the case||2003|
|Appellant||Union for Civil Liberties (PUCL) and Another|
|Respondent||Union of India and Another|
|Bench/Judges||P. V. Reddi|
|Acts Involved||Constitution of India|
|Important Sections||Constitution, Article 19(a) (freedom of speech and expression), Article 19(2) (exemptions);|
Representation of the People Act ( Constitution, Other Law )
The width and amplitude of the right to information about the candidates contesting elections to the Parliament or State Legislature in the context of the citizen’s right to vote broadly fall for consideration in these writ petitions under Article 32 of the Constitution. While it is respectfully agreed that Section 33(B) of the Representation of the People Act, 1951 does not pass the test of constitutionality have come across a limited area of disagreement on certain aspects, especially pertaining to the extent of disclosures that could be insisted upon by the Court in the light of legislation on the subject. Moreover, the importance and intricacies of the subject-matter and the virgin ground trodden by this Court in Union of India Vs. Association for Democratic Reforms to bring the right to information of the voter within the sweep of Article 19(1)(a) has impelled me to elucidate and clarify certain crucial aspects. Hence, this separate opinion.
Case Summary and Outcome
The Supreme Court of India held that Indian voters have a right under Article 19(1)(a) of the Indian Constitution to obtain information about political candidates. The People’s Union of Civil Liberties (PUCL) challenged the validity of a 1951 law, which stated that political candidates were not bound to disclose any information not required under the law. The Court reasoned that the availability of basic information about the candidates enables voters to make an informed decision and also paves the way for public debates on the merits and demerits of candidates.
In the earlier case of Union of India v. Association for Democratic Reforms and Another (2002), the Supreme Court had held that citizens have a right to know about public functionaries and candidates for office, including their assets and criminal and educational backgrounds, and found that right to be derived from the constitutional right to freedom of speech and expression. The Parliament then essentially nullified part of that ruling by amending the Representation of the People Act to require political candidates to disclose certain criminal records; namely, any charges or convictions for any offense punishable with imprisonment for two years or more. Moreover, the Act expressly stated that no candidate could be compelled to disclose any additional information, including educational qualifications and assets and liabilities, “notwithstanding anything contained in the judgment of any court or directions issued by the Election Commission” (Section 33B).
The petitioner in the instant case, the Union for Civil Liberties (UCL), filed a petition with the Supreme Court challenging the constitutionality of Section 33B. In particular, UCL contended that the provision was arbitrary on its face and violated fundamental rights of the voters as previously recognized by the Supreme Court; and “that without the exercise of the right to know the relevant antecedents of the candidate, it will not be possible to have free and fair elections” (p. 6). The interveners submitted that the Amended Act was consistent with the 2002 judgment (p. 6) and “that it cannot be held that a voter has any fundamental right of knowing the antecedents/assets of a candidate contesting the election” (p. 32).
The Court reiterated the main findings in the Union of India v. Association for Democratic Reforms and Another.
It observed that the judgment, in that case, was a final decision that had a precedential effect and that, accordingly, Article 19(1) of the Constitution (freedom of speech and expression) should be interpreted to include a “fundamental right [of the voters’] to know relevant antecedents of the candidate contesting the elections” (p. 9). In other words, “information to a voter […] is one facet of the fundamental right [of freedom of speech and expression] […]” (p. 20). The Court ruled that Parliament cannot exercise its powers in violation of fundamental rights and has no power to declare a court’s decision as void or of no effect (p. 24). Therefore, once the Supreme Court held that a voter has a fundamental right to know candidates’ qualifications, this right may be limited only in cases provided by Article 19(2) of the Constitution (p. 24). The fundamental right of the voters to know relevant qualifications of the candidate is independent of any statutory rights under the election law (p. 41); when a statutory provision violates a fundamental right, such provision must be struck down (p. 35).
Concerning the relationship between the right to access asset declarations of the candidates and the right to privacy, the Court emphasized that the right to privacy is not absolute and “a person having assets or income is normally required to disclose the same under the Income Tax Act or such similar fiscal legislation” (pp. 29-30). This is especially true for candidates for public offices. Disclosure of asset declarations is “ the necessity of the day because of statutory provisions of controlling widespread corrupt practices” (p. 30).
For all of the above reasons, the Court declared Section 33-B of the Amended Act “to be illegal, null and void” (p. 41).
The People’s Union of Civil Liberties (PUCL) challenged the validity of Section 33B of the Representation of People Act, 1951. Section 33B provided that, notwithstanding a judgment or order of the court or Election Commission, an electoral candidate is not bound to disclose any information apart from that required under the Act. In Union of India v. Association for Democratic Reforms, (2002) 3 S.C.R. 294, the Supreme Court of India recognized that the right to know about electoral candidates falls within the right to information available under the right to freedom of speech and expression described in Article 19(1)(a) of the Indian Constitution. It further indicated that information about the criminal background of candidates, assets, and liabilities of candidates and their family members, and educational qualifications of candidates should be available to the voters as part of their right.
The Election Commission issued directives to effect this judgment. However, Section 33B made ineffective the judgment in that case and other directives. Thus, the PUCL challenged Section 33B as violative of Article 19(1)(a).
P. Venkatarma Reddi, J., delivered the opinion of the Court. The Supreme Court of India reiterated that Article 19(1)(a) includes the right of voters to have basic information about electoral candidates. In a democracy, the will of the people is expressed in periodic elections. The availability of basic information about the candidates enables voters to make an informed decision and also paves the way for public debates on the merits and demerits of candidates. This in turn goes a long way in promoting freedom of speech and expression, and also ensures the integrity of the electoral process in a democracy. Further, freedom of expression is not limited to oral or written expression, but also includes voting as a form of expression. Even though the right to vote itself may not be a fundamental right, the expression of opinion through the final act of casting a vote is part of the fundamental right of freedom of speech and expression under Article 19(1)(a).
A liberal approach to the disclosure of information about an electoral candidate is desirable. However, compelling a person to disclose personal information affects a person’s privacy. There is a need to draw a line between the voters’ rights and candidates’ privacy. The legislature must apply its mind and lay down the criteria on which information must be disclosed. In the absence of such a law, in the case of Union of India v. Association for Democratic Reforms, (2002) 3 S.C.R. 294, the Court gave certain broad indicators for disclosure to give effect to the right under Article 19(1)(a). The Election Commission directives based on this judgment were meant to operate only until the time legislature enacted an appropriate law. While these points of disclosure serve as broad indicators for enacting a law, the legislature must give them weight.
The Court concluded that Section 33B of the Representation of People Act, 1951, was unconstitutional. Firstly, it froze and stagnated the right to information by nullifying the effect of any order or judgment requiring disclosure of information. Instead, the right to information is a dynamic right that should be allowed to grow. Secondly, the Act inadequately required disclosure of information concerning the criminal background of the candidates and assets and liabilities of candidates and their spouses and children. However, the Court held that by not providing for disclosure of educational qualifications, it cannot be said that Article 19(1)(a) has been violated.
The Court directed the Election Commission to issue revised instructions following the law laid down in this judgment.
- See, e.g., The World Bank, India Country Overview (2009), available at http://go.worldbank.org/ZUIBUQT360.
- India’s Global Hunger Index (GHI) 2008 score is 23.7, which gives it a rank of 66th out of 88 countries. This score indicates a continued poor performance in reducing hunger in India. The GHI aims to capture three interrelated aspects of hunger — inadequate consumption, underweight children, and child mortality. Int’l Food Policy Research Institute, Global Hunger Index Report (2008), available at http://www.ifpri.org/pubs/cp/ishi08.pdf.
- Most of the interim orders are comprised of directions to the state and central governments. In the case of the state governments, the Chief Secretary is answerable to the Supreme Court on behalf of the government. In regards to the Indian government, the person whom the Supreme Court will hold responsible depends on what department or ministry it addressed its directions. If an order is addressed to a department or ministry, then the secretary