A Short Note on the Right to Information about the Antecedents of Candidates
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A Short Note on the Right to Information about the Antecedents of Candidates
1. Introduction : The Need, Exercise Of Informed Opnion
History affords constant vindications of the validity of the proposition that certain inalienable rights are enjoyed my individuals. They are termed ‘human rights’, since devoid of them a human being lives a mere animal existence.
These rights are granted by the state under a social contract. Where the privilege of enjoying these rights corresponds with the duty to determine the constitution of the government. The democratic form of government facilitates this process by the grant of adult franchise. Each individual is conferred with the right to elect his representatives who are deemed to be the voice of the sovereign. This equitable operation has been eloquently tendered by Justice Felix Frankfurter
“Democracy involves hardship, the hardship of the unceasing responsibility of every citizen. Where the entire people do not take a continuous and considered part in public life there can be no democracy in any meaningful sense of the term. Democracy is always a beckoning goal, not a safe harbor. For freedom is an unremitting endeavor, never a final achievement. That is why no office in the land is more important than that of being a citizen.”
Though there exist practical difficulties that citizens face while exercising there franchise. They are faced with a paucity of information about the candidate. Prior to a recent amendment in The Representation of the People Act, 1951 (the statute governing the conduct of elections) there existed no specific legal obligation upon candidates to furnish information. This legal lacuna was exploited by bad characters, who entered politics, pulling a veil over there antecedents. The media termed it “Criminalization of Politics”. Many a voter was handicapped in formulating the opinion and making a proper choice of the candidate when the essential information regarding the candidate is unavailable.
The next few pages will exhaustively state the legal provisions which were erected to abate the flow of criminalization. Though to maintain lucidity a brief outline is provided chronologically below.
1. Union of India v. Association for Democratic Reforms – the right to speech and expression under Article 19(1)(a) includes right to know the antecedents of candidates.
2. Section 33B inserted in the The Representation of the People Act, 1951 by the Representation of People (3rd Amendment) Act, 2002 considerably diluting the effect of the aforementioned judgment.
3. People's Union of Civil Liberties (P.U.C.L.) v. Union of India -- Section 33B inserted by the Representation of People (3rd Amendment) Act, 2002 held unconstitutional, struck down as ultra vires (beyond powers) Article 19(1)(a).
2. An Epoch Of Information
“Ignorance is an evil weed, which dictators may cultivate among their dupes, but which no democracy can afford among its citizens”
William Henry Beveridge, Full Employment in a Free Society.
The Hon’ble Supreme Court was presented with short but important question in a public interest litigation that 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 is of utmost importance for governance of the country, whether, before casting votes, voters have a right to know relevant particulars of their candidates? The Hon’ble Supreme Court replied in the affirmative in Union of India v. Association for Democratic Reforms.
It held that the republican and democratic form of government is part of the basic structure of the Constitution; that the right to freedom of speech and expression in Article 19(1)(a) includes the right to casting of vote and the right to know the antecedents including criminal past of a candidate to be elected as a member of Parliament or State Assembly; that the court cannot ask the legislature to amend the law nor can it issue directions against the existing law, it can ask the appropriate authority to fill any vacuum or void in the law; and that the Election Commission has the power under Article 324 to pass such orders as it . considers necessary or appropriate for the purpose of conducting free and fair elections. Upholding the directions issued by the High Court the Supreme Court, directed the Election Commission to issue an order in exercise of its power under Article 324 requiring each candidate seeking election to Parliament or a State Legislature to ..furnish information on the following aspects as a necessary part of his nomination paper:
1. Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past - if any, whether he is punished with imprisonment or fine.
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.
3. The assets (immovable; movable, bank balance etc.) of a candidate and of his/her spouse and that of dependants.
4. Liabilities, if any particularly whether there are any overdues of any public financial institution or government dues.
5. The educational qualifications of the candidate. On May 2, 2002 the Supreme Court delivered the judgment and directed the Election Commission to issue a notification making it compulsory for those who contest elections to make available information about their education, assets, liabilities and criminal antecedents for the benefit of voters. The Election Commission acted upon the order of the Court and issued the notification making it compulsory to provide above information’s before filing their nominations for contesting elections. Thereafter, Parliament amended the Electoral Law (Representation Peoples Act) and negated the Court's judgment and Election Commission notification.
Section 33B was inserted in the The Representation of the People Act, 1951 by the Representation of People (3rd Amendment) Act, 2002, the section reads as follow:
“33B. Candidate to furnish information only under the Act and the rules.—Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission. 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 this Act or the rules made thereunder.”
The constitutionality of the this section was challenged in the case of People's Union of Civil Liberties (P.U.C.L.) & Anr. v. Union of India & Anr. the P.U.C.L. moved the Hon’ble Supreme Court challenging the validity of a citizens tight of information under Article 19(1)(a) of the Constitution. The Hon’ble Court opined that the directives of the court in Union of India Vs. Association for Democratic Reforms were intended to operate only till the law was made by the Legislature and in that sense ‘pro tempore’ (temporary) in nature.
The court however held that the aforementioned Section 33B inserted by the Representation of People (3rd Amendment) Act, 2002 does not pass the test of constitutionality firstly for the reason that it imposes blanket ban on dissemination of information. The court restored its May 2,2002 verdict of Union of India v. Association for Democratic Reforms and directed the Election Commission to issue a fresh notification for the implementation of its judgment.
The evidence of its utility is visible by the illustration of various cases of public scrutiny of nomination papers filed by candidates.
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