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CASE NO.:

Writ Petition (civil) 490 of 2002

Writ Petition (civil) 509 of 2002

Writ Petition (civil) 515 of 2002

PETITIONER:

People's Union of Civil Liberties (P.U.C.L.) & Anr.

RESPONDENT:

Union of India & Anr.

DATE OF JUDGMENT: 13/03/2003

BENCH:

P. V. Reddi

JUDGMENT:

J U D G M E N T

P. Venkatarama Reddi, J.

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

falls for consideration in these writ petitions under Article 32 of

the Constitution. While I respectfully agree with the conclusion

that Section 33(B) of the Representation of the People Act, 1951

does not pass the test of constitutionality, I 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 [(2002) 5 SCC 294] 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.

I. (1). Freedom of expression and right to information

In the Constitution of our democratic Republic, among the

fundamental freedoms, freedom of speech and expression

shines radiantly in the firmament of Part III. We must take

legitimate pride that this cherished freedom has grown from

strength to strength in the post independent era. It has been

constantly nourished and shaped to new dimensions in tune

with the contemporary needs by the constitutional Courts.

Barring a few aberrations, the Executive Government and the

Political Parties too have not lagged behind in safeguarding this

valuable right which is the insignia of democratic culture of a

nation. Nurtured by this right, Press and electronic media have

emerged as powerful instruments to mould the public opinion

and to educate, entertain and enlighten the public.

Freedom of speech and expression, just as equality clause

and the guarantee of life and liberty has been very broadly

construed by this Court right from 1950s. It has been variously

described as a 'basic human right', 'a natural right' and the like.

It embraces within its scope the freedom of propagation and

inter-change of ideas, dissemination of information which would

help formation of one's opinion and viewpoint and debates on

matters of public concern. The importance which our

Constitution- makers wanted to attach to this freedom is evident

from the fact that reasonable restrictions on that right could be

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placed by law only on the limited grounds specified in Article

19(2), not to speak of inherent limitations of the right.

In due course of time, several species of rights

unenumerated in Article 19(1)(a) have branched off from the

genus of the Article through the process of interpretation by

this apex Court. One such right is the 'right to information'.

Perhaps, the first decision which has adverted to this right is

State of U.P. Vs. Raj Narain [(1975) 4 SCC 428]. 'The right to

know', it was observed by Mathew, J. "which is derived from the

concept of freedom of speech, though not absolute is a factor

which should make one wary, when secrecy is claimed for

transactions which can, at any rate, have no repercussion on

public security". It was said very aptly-

"In a Government of responsibility like ours, where

all the agents of the public must be responsible for

their conduct, there can be but few secrets. The

people of this country have a right to know every

public act, everything that is done in a public way,

by their public functionaries."

The next milestone which showed the way for concretizing

this right is the decision in S.P. Gupta Vs. Union of India [(1981)

Suppl. SCC Page 87] in which this Court dealt with the issue of

High Court Judges' transfer. Bhagwati, J. observed-

"The concept of an open government is the direct

emanation from the right to know which seems to be

implicit in the right of free speech and expression

guaranteed under Article 19(1)(a). Therefore,

disclosure of information in regard to the functioning

of the Government must be the rule and secrecy an

exception..."

Peoples' right to know about governmental affairs was

emphasized in the following words:

"No democratic Government can survive without

accountability and the basic postulate of

accountability is that the people should have

information about the functioning of the Government.

It is only when people know how Government is

functioning that they can fulfill the role which

democracy assigns to them and make democracy a

really effective participatory democracy."

These two decisions have recognized that the right of the

citizens to obtain information on matters relating to public acts

flows from the fundamental right enshrined in Article 19(1)(a).

The pertinent observations made by the learned Judges in these

two cases were in the context of the question whether the

privilege under Section 123 of the Evidence Act could be

claimed by the State in respect of the Blue Book in the first case

i.e., Raj Narain's case (supra) and the file throwing light on the

consultation process with the Chief Justice, in the second case.

Though the scope and ambit of Article 19(1)(a) vis--vis the right

to information did not directly arise for consideration in those

two landmark decisions, the observations quoted supra have

certain amount of relevance in evaluating the nature and

character of the right.

Then, we have the decision in Dinesh Trivedi Vs. Union of

India [(1997) 4 SCC 306]. This Court was confronted with the

issue whether background papers and investigatory reports

which were referred to in Vohra Committee's Report could be

compelled to be made public. The following observations of

Ahmadi, C.J. are quite pertinent:--

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"In modern Constitutional democracies, it is

axiomatic that citizens have a right to know about the

affairs of the Government which, having been elected

by them, seeks to formulate sound policies of

governance aimed at their welfare. However, like all

other rights, even this right has recognized

limitations; it is, by no means, absolute."

The proposition expressed by Mathew, J. in Raj Narain's

Case (supra) was quoted with approval.

The next decision which deserves reference is the case of

Secretary, Ministry of I & B vs. Cricket Association of Bengal

[(1995) 2 SCC Page 161]. Has an organizer or producer of any

event a right to get the event telecast through an agency of his

choice whether national or foreign? That was the primary

question decided in that case. It was highlighted that the right to

impart and receive information is a part of the fundamental right

under Article 19(1)(a) of the Constitution. On this point, Sawant,

J. had this to say at Paragraph 75-

"The right to impart and receive information is a

species of the right of freedom of speech and

expression guaranteed by Article 19(1)(a) of the

Constitution. A citizen has a fundamental right

to use the best means of imparting and

receiving information and as such to have an

access to telecasting for the purpose. However,

this right to have an access to telecasting has

limitations on account of the use of the public

property....."

Jeevan Reddy, J. spoke more or less in the same voice:

"The right of free speech and expression

includes the right to receive and impart

information. For ensuring the free speech right

of the citizens of this country, it is necessary

that the citizens have the benefit of plurality of

views and a range of opinions on all public

issues. A successful democracy posits an

'aware' citizenry. Diversity of opinions, views,

ideas and ideologies is essential to enable the

citizens to arrive at informed judgment on all

issues touching them."

A conspectus of these cases would reveal that the right to

receive and impart information was considered in the context of

privilege pleaded by the State in relation to confidential

documents relating to public affairs and the freedom of

electronic media in broadcasting/telecasting certain events.

I. (2). Right to information in the context of the voter's right

to know the details of contesting candidates and the right of the

media and others to enlighten the voter.

For the first time in Union of India Vs. Association for

Democratic Reforms' case (supra), which is the forerunner to the

present controversy, the right to know about the candidate

standing for election has been brought within the sweep of

Article 19(1)(a). There can be no doubt that by doing so, a new

dimension has been given to the right embodied in Article

19(1)(a) through a creative approach dictated by the need to

improve and refine the political process of election. In carving

out this right, the Court had not traversed a beaten track but

took a fresh path. It must be noted that the right to information

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evolved by this Court in the said case is qualitatively different

from the right to get information about public affairs or the right

to receive information through the Press and electronic media,

though to a certain extent, there may be overlapping. The right

to information of the voter/citizen is sought to be enforced

against an individual who intends to become a public figure and

the information relates to his personal matters. Secondly, that

right cannot materialize without State's intervention. The State

or its instrumentality has to compel a subject to make the

information available to public, by means of legislation or orders

having the force of law. With respect, I am unable to share the

view that it stands on the same footing as right to telecast and

the right to view the sports and games or other items of

entertainment through television (vide observations at

Paragraph 38 of of Association for Democratic Reforms case).

One more observation at Paragraph 30 to the effect that "the

decision making process of a voter would include his right to

know about public functionaries who are required to be elected

by him" needs explanation. Till a candidate gets elected and

enters the House, it would not be appropriate to refer to him as a

public functionary. Therefore, the right to know about a public

act done by a public functionary to which we find reference in

Raj Narain's case (supra) is not the same thing as the right to

know about the antecedents of the candidate contesting for the

election. Nevertheless, the conclusion reached by the Court that

the voter has such a right and that the right falls within the realm

of freedom of speech and expression guaranteed by Article

19(1)(a) can be justified on good and substantial grounds. To

this aspect, I will advert a little later. Before that, I would like to

say that it would have been in the fitness of the things if the

case [U.O.I. vs. Association for Democratic Reforms] was

referred to the Constitution Bench as per the mandate of Article

145(3) for the reason that a new dimension has been added to

the concept of freedom of expression so as to bring within its

ambit a new species of right to information. Apparently, no such

request was made at the hearing and all parties invited the

decision of three Judge Bench. The law has been laid down

therein elevating the right to secure information about a

contesting candidate to the position of a fundamental right. That

decision has been duly taken note of by the Parliament and

acted upon by the Election Commission. It has attained finality.

At this stage, it would not be appropriate to set the clock back

and refer the matter to Constitution Bench to test the

correctness of the view taken in that case. I agree with my

learned brother Shah, J. in this respect. However, I would prefer

to give reasons of my own-may not be very different from what

the learned Judge had expressed, to demonstrate that the

proposition laid down by this Court rests on a firm

Constitutional basis.

I shall now proceed to elucidate as to how the right to

know the details about the contesting candidate should be

regarded as a part of the freedom of expression guaranteed by

Article 19(1)(a). This issue has to be viewed from more than one

angle-from the point of view of the voter, the public viz.,

representatives of Press, organizations such as the petitioners

which are interested in taking up public issues and thirdly from

the point of view of the persons seeking election to the

legislative bodies.

The trite saying that 'democracy is for the people, of the

people and by the people' has to be remembered for ever. In a

democratic republic, it is the will of the people that is paramount

and becomes the basis of the authority of the Government. The

will is expressed in periodic elections based on universal adult

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suffrage held by means of secret ballot. It is through the ballot

that the voter expresses his choice or preference for a

candidate. "Voting is formal expression of will or opinion by the

person entitled to exercise the right on the subject or issue", as

observed by this Court in Lily Thomas Vs. Speaker, Lok Sabha

[(1993) 4 SCC 234] quoting from Black's Law Dictionary. The

citizens of the country are enabled to take part in the

Government through their chosen representatives. In a

Parliamentary democracy like ours, the Government of the day

is responsible to the people through their elected

representatives. The elected representative acts or is supposed

to act as a live link between the people and the Government. The

peoples' representatives fill the role of law-makers and

custodians of Government. People look to them for ventilation

and redressal of their grievances. They are the focal point of the

will and authority of the people at large. The moment they put in

papers for contesting the election, they are subjected to public

gaze and public scrutiny. The character, strength and weakness

of the candidate is widely debated. Nothing is therefore more

important for sustenance of democratic polity than the voter

making an intelligent and rational choice of his or her

representative. For this, the voter should be in a position to

effectively formulate his/her opinion and to ultimately express

that opinion through ballot by casting the vote. The concomitant

of the right to vote which is the basic postulate of democracy is

thus two fold: first, formulation of opinion about the candidates

and second, the expression of choice by casting the vote in

favour of the preferred candidate at the polling booth. The first

step is complementary to the other. Many a voter will be

handicapped in formulating the opinion and making a proper

choice of the candidate unless the essential information

regarding the candidate is available. The voter/citizen should

have at least the basic information about the contesting

candidate, such as his involvement in serious criminal offences.

To scuttle the flow of information-relevant and essential would

affect the electorate's ability to evaluate the candidate. Not only

that, the information relating to the candidates will pave the way

for public debate on the merits and demerits of the candidates.

When once there is public disclosure of the relevant details

concerning the candidates, the Press, as a media of mass

communication and voluntary organizations vigilant enough to

channel the public opinion on right lines will be able to

disseminate the information and thereby enlighten and alert the

public at large regarding the adverse antecedents of a

candidate. It will go a long way in promoting the freedom of

speech and expression. That goal would be accomplished in two

ways. It will help the voter who is interested in seeking and

receiving information about the candidate to form an opinion

according to his or her conscience and best of judgment and

secondly it will facilitate the Press and voluntary organizations

in imparting information on a matter of vital public concern. An

informed voter-whether he acquires information directly by

keeping track of disclosures or through the Press and other

channels of communication, will be able to fulfil his

responsibility in a more satisfactory manner. An enlightened and

informed citizenry would undoubtedly enhance democratic

values. Thus, the availability of proper and relevant information

about the candidate fosters and promotes the freedom of

speech and expression both from the point of view of imparting

and receiving the information. In turn, it would lead to the

preservation of the integrity of electoral process which is so

essential for the growth of democracy. Though I do not go to the

extent of remarking that the election will be a farce if the

candidates' antecedents are not known to the voters, I would

say that such information will certainly be conducive to fairness

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in election process and integrity in public life. The disclosure of

information would facilitate and augment the freedom of

expression both from the point of view of the voter as well as the

media through which the information is publicized and openly

debated.

The problem can be approached from another angle. As

observed by this Court in Association for Democratic Reforms'

case (supra), a voter 'speaks out or expresses by casting vote'.

Freedom of expression, as contemplated by Article 19(1)(a)

which in many respects overlaps and coincides with freedom of

speech, has manifold meanings. It need not and ought not to be

confined to expressing something in words orally or in writing.

The act of manifesting by action or language is one of the

meanings given in Ramanatha Iyer's Law Lexicon (edited by

Justice Y.V. Chandrachud). Even a manifestation of an emotion,

feeling etc., without words would amount to expression. The

example given in Collin's Dictionary of English language (1983

reprint) is: "tears are an expression of grief", is quite apposite.

Another shade of meaning is: "a look on the face that indicates

mood or emotion; eg: a joyful expression". Communication of

emotion and display of talent through music, painting etc., is

also a sort of expression. Having regard to the comprehensive

meaning of phrase 'expression', voting can be legitimately

regarded as a form of expression. Ballot is the instrument by

which the voter expresses his choice between candidates or in

respect to propositions; and his 'vote' is his choice or election,

as expressed by his ballot (vide 'A Dictionary of Modern Legal

Usage'; 2nd Edition, by Garner Bryan A). "Opinion expressed,

resolution or decision carried, by voting" is one of the meanings

given to the expression 'vote' in the New Oxford Illustrated

Dictionary. It is well settled and it needs no emphasis that the

fundamental right of freedom of speech and expression should

be broadly construed and it has been so construed all these

years. In the light of this, the dictum of the Court that the voter

"speaks out or expresses by casting a vote" is apt and well

founded. I would only reiterate and say that freedom of voting by

expressing preference for a candidate is nothing but freedom of

expressing oneself in relation to a matter of prime concern to

the country and the voter himself.

I. (3) Right to vote is a Constitutional right though not a

fundamental right but right to make choice by means of ballot is

part of freedom of expression.

The right to vote for the candidate of one's choice is of the

essence of democratic polity. This right is recognized by our

Constitution and it is given effect to in specific form by the

Representation of the People Act. The Constituent Assembly

debates reveal that the idea to treat the voting right as a

fundamental right was dropped; nevertheless, it was decided to

provide for it elsewhere in the Constitution. This move found its

expression in Article 326 which enjoins that "the elections to

the House of the People and to the Legislative Assembly of

every State shall be on the basis of adult suffrage; that is to say,

every person who is a citizen of India and who is not less than

21* years of age, and is not otherwise disqualified under the

Constitution or law on the ground of non-residence,

unsoundness of mind, crime, corrupt or illegal practice-shall

be entitled to be registered as voter at such election" (* Now 18

years). However, case after case starting from Ponnuswami's case

[(1952) SCR 218] characterized it as a statutory right. "The right

to vote or stand as a candidate for election", it was observed in

Ponnuswami's case "is not a civil right but is a creature of

statute or special law and must be subject to the limitations

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imposed by it." It was further elaborated in the following words:

"Strictly speaking, it is the sole right of the

Legislature to examine and determine all matters

relating to the election of its own members, and if

the legislature takes it out of its own hands and

vests in a special tribunal an entirely new and

unknown jurisdiction, that special jurisdiction

should be exercised in accordance with the law

which creates it."

In Jyoti Basu Vs. Debi Ghosal [1982 (3) SCR 318] this

Court again pointed out in no uncertain terms that: " a right to

elect, fundamental though it is to democracy, is, anomalously

enough, neither a fundamental right nor a common law right. It

is pure and simple a statutory right." With great reverence to

the eminent Judges, I would like to clarify that the right to vote,

if not a fundamental right, is certainly a constitutional right. The

right originates from the Constitution and in accordance with the

constitutional mandate contained in Article 326, the right has

been shaped by the statute, namely, R.P. Act. That, in my

understanding, is the correct legal position as regards the

nature of the right to vote in elections to the House of people

and Legislative Assemblies. It is not very accurate to describe it

as a statutory right, pure and simple. Even with this

clarification, the argument of the learned Solicitor General that

the right to vote not being a fundamental right, the information

which at best facilitates meaningful exercise of that right cannot

be read as an integral part of any fundamental right, remains to

be squarely met. Here, a distinction has to be drawn between

the conferment of the right to vote on fulfillment of requisite

criteria and the culmination of that right in the final act of

expressing choice towards a particular candidate by means of

ballot. Though the initial right cannot be placed on the pedestal

of a fundamental right, but, at the stage when the voter goes to

the polling booth and casts his vote, his freedom to express

arises. The casting of vote in favour of one or the other

candidate tantamounts to expression of his opinion and

preference and that final stage in the exercise of voting right

marks the accomplishment of freedom of expression of the

voter. That is where Article 19(1)(a) is attracted. Freedom of

voting as distinct from right to vote is thus a species of freedom

of expression and therefore carries with it the auxiliary and

complementary rights such as right to secure information about

the candidate which are conducive to the freedom. None of the

decisions of this Court wherein the proposition that the right

to vote is a pure and simple statutory right was declared and

reiterated, considered the question whether the citizen's

freedom of expression is or is not involved when a citizen

entitled to vote casts his vote in favour of one or the other

candidate. The issues that arose in Ponnuswami's case and

various cases cited by the learned Solicitor-General fall broadly

within the realm of procedural or remedial aspects of

challenging the election or the nomination of a candidate. None

of these decisions, in my view, go counter to the proposition

accepted by us that the fundamental right of freedom of

expression sets in when a voter actually casts his vote. I,

therefore, find no merit in the submission made by the learned

Solicitor General that these writ petitions have to be referred to a

larger bench in view of the apparent conflict. As already stated,

the factual matrix and legal issues involved in those cases were

different and the view, we are taking, does not go counter to the

actual ratio of the said decisions rendered by the eminent

Judges of this Court.

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Reliance has been placed by the learned Solicitor General

on the Constitution Bench decision in Jamuna Prasad Vs.

Lachhi Ram [(1955) 1 SCR Page 608]. That was a case of special

appeal to this Court against the decision of an Election Tribunal.

Apart from assailing the finding of the Tribunal on the aspect of

'corrupt practice', Sections 123(5) and 124(5) (as they stood

then) of the R.P. Act were challenged as ultra vires Article

19(1)(a). The former provision declared the character

assassination of a candidate as a major corrupt practice and the

latter provision made an appeal to vote on the ground of caste a

minor corrupt practice. The contention that these provisions

impinged on the freedom of speech and expression was

unhesitatingly rejected. The Court observed that those

provisions did not stop a man from speaking. They merely

prescribed conditions which must be observed if a citizen

wanted to enter the Parliament. It was further observed that the

right to stand as a candidate and contest an election is a special

right created by the statute and can only be exercised on the

conditions laid down by the statute. In that context, the Court

made an observation that the fundamental right chapter had no

bearing on the right to contest the election which is created by

the statute and the appellant had no fundamental right to be

elected as a member of Parliament. If a person wants to get

elected, he must observe the rules laid down by law. So holding,

those Sections were held to be intra vires. I do not think that

this decision which dealt with the contesting candidate's rights

and obligations has any bearing on the freedom of expression of

the voter and the public in general in the context of elections.

The remark that 'the fundamental right chapter has no bearing

on a right like this created by statute' cannot be divorced from

the context in which it was made.

The learned senior counsel appearing for one of the

interveners (B.J.P.) has advanced the contention that if the right

to information is culled out from Article 19(1)(a) and read as an

integral part of that right, it is fraught with dangerous

consequences inasmuch as the grounds of reasonable

restrictions which could be imposed are by far limited and

therefore, the Government may be constrained to part with

certain sensitive informations which would not be in public

interest to disclose. This raises the larger question whether

apart from the heads of restriction envisaged by sub-Article (2)

of Article 19, certain inherent limitations should not be read into

the Article, if it becomes necessary to do so in national or

societal interest. The discussion on this aspect finds its echo in

the separate opinion of Jeevan Reddy, J. in Cricket

Association's case (supra). The learned Judge was of the view

that the freedom of speech and expression cannot be so

exercised as to endanger the interest of the nation or the

interest of the society, even if the expression 'national interest'

or 'public interest' has not been used in Article 19(2). It was

pointed out that such implied limitation has been read into the

first amendment of the U.S. Constitution which guarantees the

freedom of speech and expression in unqualified terms.

The following observations of the U.S. Supreme Court in

Giltow Vs. New York [(1924) 69 L.Ed. 1138] are very relevant in

this context:

"It is a fundamental principle, long established,

that the freedom of speech and of the Press

which is secured by the Constitution does not

confer an absolute right to speak or publish,

without responsibility, whatever one may

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choose, or an unrestricted and unbridle license

that gives immunity for every possible use of

language, and prevents the punishment of those

who abuse this freedom."

Whenever the rare situations of the kind anticipated by the

learned counsel arise, the Constitution and the Courts are not

helpless in checking the misuse and abuse of the freedom. Such

a check need not necessarily be found strictly within the

confines of Article 19(2).

II. Sections 33-A & 33-B of the Representation of People

(3rd Amendment) Act, 2002-whether Section 33-A by

itself effectively secures the voter's/citizen's right to

information-whether Section 33-B is unconstitutional?

II. (1). Section 33-A & 33-B of the Representation of People

(3rd Amendment) Act:

Now I turn my attention to the discussion of core question,

that is to say, whether the impugned legislation falls foul of

Article 19(1)(a) for limiting the area of disclosure and whether

the Parliament acted beyond its competence in deviating from

the directives given by this Court to the Election Commission in

Democratic Reforms Association case. By virtue of the

Representation of the People (Amendment) Act, 2002 the only

information which a prospective contestant is required to

furnish apart from the information which he is obliged to

disclose under the existing provisions is the information on two

points: (i) 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 and; (ii) Whether he has been

convicted of an offence (other than the offence referred to in

sub-Sections (1) to (3) of Section 8) and sentenced to

imprisonment for one year or more. On other points spelt out in

this Court's judgment, the candidate is not liable to furnish any

information and that is so, notwithstanding anything contained

in any judgment or order of a Court OR any direction, order or

instruction issued by the Election Commission. Omission to

furnish the information as per the mandate of Section 33B and

furnishing false information in that behalf is made punishable.

That is the sum and substance of the two provisions namely,

Section 33A and 33B.

The plain effect of the embargo contained in Section 33B is

to nullify substantially the directives issued by the Election

Commission pursuant to the judgment of this Court. At present,

the instructions issued by the Election Commission could only

operate in respect of the items specified in Section 33A and

nothing more. It is for this reason that Section 33B has been

challenged as ultra vires the Constitution both on the ground

that it affects the fundamental right of the voter/citizen to get

adequate information about the candidate and that the

Parliament is incompetent to nullify the judgment of this Court. I

shall briefly notice the rival contentions on this crucial issue.

II. (2). Contentions:

Petitioners' contention is that the legislation on the subject

of disclosure of particulars of candidates should adopt in

entirety the directives issued by this Court to the Election

Commission in the pre-ordinance period. Any dilution or

deviation of those norms or directives would necessarily violate

the fundamental right guaranteed by Article 19(1)(a) as

interpreted by this Court and therefore the law, as enacted by

Parliament, infringes the said guarantee. This contention has

apparently been accepted by my learned brother M.B. Shah, J.

The other view point presented on behalf of Union of India and

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one of the interveners is that the freedom of legislature in

identifying and evolving the specific areas in which such

information should be made public cannot be curtailed by

reference to the ad hoc directives given by this Court in pre-

ordinance period and the legislative wisdom of Parliament,

especially in election matters, cannot be questioned. This is the

position even if the right to know about the candidate is

conceded to be part of Article 19(1)(a). It is for the Parliament to

decide to what extent and how far the information should be

made available. In any case, it is submitted that the Court's

verdict has been duly taken note of by Parliament and certain

provisions have been made to promote the right to information

vis--vis the contesting candidates. Section 33B is only a part of

this exercise and it does not go counter to Article 19(1)(a) even

though the scope of public disclosures has been limited to one

important aspect only.

II. (3). Broad points for consideration

A liberal but not a constricted approach in the matter of

disclosure of information in relation to candidates seeking

election is no doubt a desideratum. The wholesale adoption of

the Court's diktats on the various items of information while

enacting the legislation would have received public approbation

and would have been welcomed by public. It would have been in

tune with the recommendations of various Commissions and

even the statements made by eminent and responsible political

personalities. However, the fact remains that the Parliament in

its discretion did not go the whole hog, but chose to limiting the

scope of mandated disclosures to one only of the important

aspects highlighted in the judgment. The question remains to be

considered whether in doing so, the Parliament out-stepped its

limits and enacted a law in violation of the guarantee enshrined

in Article 19(1)(a) of the Constitution. The allied question is

whether the Parliament has no option but to scrupulously adopt

the directives given by this Court to the Election Commission. Is

it open to the Parliament to independently view the issue and

formulate the parameters and contents of disclosure, though it

has the effect of diluting or diminishing the scope of disclosures

which, in the perception of the Court, were desirable? In

considering these questions of far reaching importance from the

Constitutional angle, it is necessary to have a clear idea of the

ratio and implications of this Court's Judgment in the

Association for Democratic Reforms case.

II. (4) Analysis of the judgment in Association for Democratic

Reforms case-whether and how far the directives given therein

have impact on the Parliamentary legislation-Approach of

Court in testing the legislation.

The first proposition laid down by this Court in the said

case is that a citizen/voter has the right to know about the

antecedents of the contesting candidate and that right is a part

of the fundamental right under Article 19(1)(a). In this context,

M.B. Shah, J. observed that-

"...Voter's speech or expression in case of

election would include casting of votes, that is

to say, voter speaks out or expresses by casting

vote."

It was then pointed out that the information about the candidate

to be selected is essential as it would be conducive to

transparency and purity in the process of election. The next

question considered was how best to enforce that right. The

Court having noticed that there was void in the field in the sense

that it was not covered by any legislative provision, gave

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directions to the Election Commission to fill the vacuum by

requiring the candidate to furnish information on the specified

aspects while filing the nomination paper. Five items of

information which the Election Commission should call for from

the prospective candidates were spelt out by the Court. Two of

them relate to criminal background of the candidate and

pendency of criminal cases against him. Points 3 & 4 relate to

assets and liabilities of the candidate and his/her family. The last

one is about the educational qualifications of the candidate. The

legal basis and the justification for issuing such directives to the

Commission has been stated thus (vide paragraphs 19 & 20) :

"19. 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

Parliament to amend the Act and the Rules. It is

also established law that no direction can be

given, which would be contrary to the Act and

the Rules.

x x x

20. However, it is equally settled that 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 necessarily issue

directions or orders on the said subject to fill

the vacuum or void till the suitable law is

enacted."

Again, at paragraph 49 it was emphasized-

"It is to be stated that the Election Commission

has from time to time issued instructions/orders

to meet with the situation where the field is

unoccupied by the legislation. Hence, the norms

and modalities to carry out and give effect to the

aforesaid directions should be drawn up

properly by the Election Commission as early as

possible."

Thus, the Court was conscious of the fact that the Election

Commission could act in the matter only so long as the field is

not covered by legislation. The Court also felt that the vacuum

or void should be suitably filled so that the right to information

concerning a candidate would soon become a reality. In other

words, till the Parliament applied its mind and came forward with

appropriate legislation to give effect to the right available to a

voter-citizen, the Court felt that the said goal has to be

translated into action through the media of Election

Commission, which is endowed with 'residuary power' to

regulate the election process in the best interests of the

electorate. Instead of leaving it to the Commission and with a

view to give quietus to the possible controversies that might

arise, the Court considered it expedient to spell out five points

(broadly falling into three categories) on which the information

has to be called for from the contesting candidate. In the very

nature of things, the directives given by the Court were intended

to operate only till the law was made by legislature and in that

sense 'pro tempore' in nature. The five directives cannot be

considered to be rigid theorems-inflexible and immutable, but

only reflect the perception and tentative thinking of the Court at

a point of time when the legislature did not address itself to the

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question.

When the Parliament, in the aftermath of the verdict of

this Court, deliberated and thought it fit to secure the right to

information to a citizen only to a limited extent (having a bearing

on criminal antecedents), a fresh look has to be necessarily

taken by the Court and the validity of the law made has to be

tested on a clean slate. It must be remembered that the right to

get information which is a corollary to the fundamental right to

free speech and expression has no fixed connotation. Its

contours and parameters cannot be precisely defined and the

Court in my understanding, never meant to do so. It is often a

matter of perception and approach. How far to go and where to

stop? These are the questions to be pondered over by the

Legislature and the Constitutional Court called upon to decide

the question of validity of legislation. For instance, many

voters/citizens may like to have more complete information-a

sort of bio-data of the candidate starting from his school days

such as his academic career, the properties which he had before

and after entering into politics, the details of his income and tax

payments for the last one decade and sources of acquisition of

his and his family's wealth. Can it be said that all such

information which will no doubt enable the voter and public to

have a comprehensive idea of the contesting candidate, should

be disclosed by a prospective candidate and that the failure to

provide for it by law would infringe the fundamental right under

Article 19(1)(a)? The preponderance of view would be that it is

not reasonable to compel a candidate to make disclosures

affecting his privacy to that extent in the guise of effectuating

the right to information. A line has to be drawn somewhere.

While there cannot be a lip service to the valuable right to

information, it should not be stretched too far. At the same time,

the essence and substratum of the right has to be preserved and

promoted, when once it is brought within the fold of

fundamental right. A balanced but not a rigid approach, is

needed in identifying and defining the parameters of the right

which the voter/citizen has. The standards to be applied to

disclosures vis--vis public affairs and governance AND the

disclosures relating to personal life and bio-data of a candidate

cannot be the same. The measure or yardstick will be somewhat

different. It should not be forgotten that the candidates' right to

privacy is one of the many factors that could be kept in view,

though that right is always subject to overriding public interest.

In my view, the points of disclosure spelt out by this Court

in the Association for Democratic Reforms case should serve as

broad indicators or parameters in enacting the legislation for the

purpose of securing the right to information about the

candidate. The paradigms set by the Court, though pro tempore

in nature as clarified supra, are entitled to due weight. If the

legislature in utter disregard of the indicators enunciated by this

Court proceeds to make a legislation providing only for a

semblance or pittance of information or omits to provide for

disclosure on certain essential points, the law would then fail to

pass the muster of Article 19(1)(a). Though certain amount of

deviation from the aspects of disclosure spelt out by this Court

is not impermissible, a substantial departure cannot be

countenanced. The legislative provision should be such as to

promote the right to information to a reasonable extent, if not to

the fullest extent on details of concern to the voters and citizens

at large. While enacting the legislation, the legislature has to

ensure that the fundamental right to know about the candidate is

reasonably secured and information which is crucial, by any

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objective standards, is not denied. It is for the Constitutional

Court in exercise of its judicial review power to judge whether

the areas of disclosure carved out by the Legislature are

reasonably adequate to safeguard the citizens' right to

information. The Court has to take a holistic view and adopt a

balanced approach, keeping in view the twin principles that the

citizens' right to information to know about the personal details

of a candidate is not an unlimited right and that at any rate, it

has no fixed concept and the legislature has freedom to choose

between two reasonable alternatives. It is not a proper

approach to test the validity of legislation only from the stand-

point whether the legislation implicitly and word to word gives

effect to the directives issued by the Court as an ad hoc

measure when the field was unoccupied by legislation. Once

legislation is made, this Court has to make an independent

assessment in the process of evaluating whether the items of

information statutorily ordained are reasonably adequate to

secure the right of information to the voter so as to facilitate him

to form a fairly clear opinion on the merits and demerits of the

candidates. In embarking on this exercise, as already stated, this

Court's directives on the points of disclosure even if they be

tentative or ad hoc in nature, cannot be brushed aside, but

should be given due weight. But, I reiterate that the shape of

legislation need not be solely controlled by the directives issued

to the Election Commission to meet an ad hoc situation. As I

said earlier, the right to information cannot be placed in straight

jacket formulae and the perceptions regarding the extent and

amplitude of this right are bound to vary.

III. Section 33-B is unconstitutional

III. (1). The right to information cannot be frozen and stagnated.

In my view, the Constitutional validity of Section 33B has

to be judged from the above angle and perspective. Considered

in that light, I agree with the conclusion of M.B. Shah, J. that

Section 33B does not pass the test of Constitutionality. The

reasons are more than one. Firstly, when the right to secure

information about a contesting candidate is recognized as an

integral part of fundamental right as it ought to be, it follows that

its ambit, amplitude and parameters cannot be chained and

circumscribed for all time to come by declaring that no

information, other than that specifically laid down in the Act,

should be required to be given. When the legislation delimiting

the areas of disclosure was enacted, it may be that the

Parliament felt that the disclosure on other aspects was not

necessary for the time being. Assuming that the guarantee of

right to information is not violated by making a departure from

the paradigms set by the Court, it is not open to the Parliament

to stop all further disclosures concerning the candidate in

future. In other words, a blanket ban on dissemination of

information other than that spelt out in the enactment,

irrespective of need of the hour and the future exigencies and

expedients is, in my view, impermissible. It must be remembered

that the concept of freedom of speech and expression does not

remain static. The felt necessities of the times coupled with

experiences drawn from the past may give rise to the need to

insist on additional information on the aspects not provided for

by law. New situations and march of events may demand the

flow of additional facets of information. 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. In the face of the prohibition under

Section 33B, the Election Commission which is entrusted with

the function of monitoring and supervising the election process

will have to sit back with a sense of helplessness inspite of the

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pressing need for insisting on additional information. Even the

Court may at times feel handicapped in taking necessary

remedial steps to enforce the right to information. In my view,

the legislative injunction curtailing the nature of information to

be furnished by the contesting candidates only to the specific

matters provided for by the legislation and nothing more would

emasculate the fundamental right to freedom of expression of

which the right to information is a part. The very objective of

recognizing the right to information as part of the fundamental

right under Article 19(1)(a) in order to ensure free and fair

elections would be frustrated if the ban prescribed by Section

33B is taken to its logical effect.

III. (2) Impugned legislation fails to effectuate right to

information on certain vital aspects.

The second reason why Section 33B should be

condemned is that by blocking the ambit of disclosures only to

what has been specifically provided for by the amendment, the

Parliament failed to give effect to one of the vital aspects of

information, viz., disclosure of assets and liabilities and thus

failed in substantial measure to give effect to the right to

information as a part of the freedom of expression. The right to

information which is now provided for by the legislature no

doubt relates to one of the essential points but in ignoring the

other essential aspect relating to assets and liabilities as

discussed hereinafter, the Parliament has unduly restricted the

ambit of information which the citizens should have and thereby

impinged on the guarantee enshrined in Article 19(1)(a).

III. (3) How far the principle that the Legislature cannot

encroach upon the judicial sphere applies.

It is a settled principle of constitutional jurisprudence that

the only way to render a judicial decision ineffective is to enact a

valid law by way of amendment or otherwise fundamentally

altering the basis of the judgment either prospectively or

retrospectively. The legislature cannot overrule or supersede a

judgment of the Court without lawfully removing the defect or

infirmity pointed out by the Court because it is obvious that the

legislature cannot trench on the judicial power vested in the

Courts. Relying on this principle, it is contended that the

decision of apex Constitutional Court cannot be set at naught in

the manner in which it has been done by the impugned

legislation. As a sequel, it is further contended that the question

of altering the basis of judgment or curing the defect does not

arise in the instant case as the Parliament cannot pass a law in

curtailment of fundamental right recognized, amplified and

enforced by this Court.

The contention that the fundamental basis of the decision

in Association for Democratic Reforms case has not at all been

altered by the Parliament, does not appeal to me. I have

discussed at length the real scope and ratio of the judgment and

the nature and character of directives given by this Court to the

Election Commission. As observed earlier, those directions are

pro tempore in nature when there was vacuum in the field. When

once the Parliament stepped in and passed the legislation

providing for right of information, may be on certain limited

aspects, the void must be deemed to have been filled up and the

judgment works itself out, though the proposition laid down and

observations made in the context of Article 19(1)(a) on the need

to secure information to the citizens will hold good. Now the new

legislation has to be tested on the touchstone of Article 19(1)(a).

Of course, in doing so, the decision of this Court should be

given due weight and there cannot be marked departure from

the items of information considered essential by this Court to

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effectuate the fundamental right to information. Viewed in this

light, it must be held that the Parliament did not by law provide

for disclosure of information on certain crucial points such as

assets and liabilities and at the same time, placed an embargo

on calling for further informations by enacting Section 33B. That

is where Section 33B of the impugned amendment Act does not

pass the muster of Article 19(1)(a), as interpreted by this Court.

IV. Right to information with reference to specific aspects:

I shall now discuss the specifics of the problem. With a

view to promote the right to information, this Court gave certain

directives to the Election Commission which, as I have already

clarified, were ad hoc in nature. The Election Commission was

directed to call for details from the contesting candidates

broadly on three points, namely, (i) criminal record (ii) assets

and liabilities and (iii) educational qualification. The third

amendment to R.P. Act which was preceded by an Ordinance

provided for disclosure of information. How far the third

amendment to the Representation of the People Act, 2002

safeguards the right of information which is a part of the

guaranteed right under Article 19(1)(a), is the question to be

considered now with specific reference to each of the three

points spelt out in the judgment of this Court in Association for

Democratic Reforms case.

IV. (1). Criminal background and pending criminal cases against

candidates-Section 33-A of the R.P. (3rd Amendment) Act.

As regards the first aspect, namely criminal record, the

directives in Association for Democratic Reforms case are two

fold: "(i) whether the candidate is convicted/

acquitted/discharged of any criminal case in the past-if any,

whether he is punished with imprisonment or fine and (ii) prior

to six months of filing of nomination, whether the candidate is

an 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." As regards

the second directive, the Parliament has substantially proceeded

on the same lines and made it obligatory to the candidate 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

competent Court. However, the case in which cognizance has

been taken but charge has not been framed is not covered by

Clause (i) of Section 33A(I). The Parliament having taken the

right step of compelling disclosure of the pendency of cases

relating to major offences, there is no good reason why it failed

to provide for the disclosure of the cases of the same nature of

which cognizance has been taken by the Court. It is common

knowledge that on account of variety of reasons such as the

delaying tactics of one or the other accused and inadequacies of

prosecuting machinery, framing of formal charges get delayed

considerably, especially in serious cases where committal

procedure has to be gone through. On that account, the

voter/citizen shall not be denied information regarding

cognizance taken by the Court of an offence punishable with

imprisonment for two years or more. The citizen's right to

information, when once it is recognized to be part of the

fundamental right under Article 19(I)(a), cannot be truncated in

the manner in which it has been done. Clause (i) of Section

33(A)(I) therefore falls short of the avowed goal to effectuate the

right of information on a vital aspect. Cases in which cognizance

has been taken should therefore be comprehended within the

area of information accessible to the voters/citizens, in addition

to what is provided for in Clause (i) of Section 33A.

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Coming to Clause (ii) of Section 33A(I), the Parliament

broadly followed the pattern shown by the Court itself. This

Court thought it fit to draw a line between major/serious

offences and minor/non-serious offences while giving direction

No.2 (vide Para 48). If so, the legislative thinking that this

distinction should also hold good in regard to past cases cannot

be faulted on the ground that the said clause fails to provide

adequate information about the candidate. If the Parliament felt

that the convictions and sentences of the long past related to

petty/non serious offences need not be made available to

electorate, it cannot be definitely said that the valuable right to

information becomes a casuality. Very often, such offences by

and large may not involve moral turpitude. It is not uncommon,

as one of the learned senior counsel pointed out that the

political personalities are prosecuted for politically related

activities such as holding demonstrations and visited with the

punishment of fine or short imprisonment. Information regarding

such instances may not be of real importance to the electorate

in judging the worth of the relative merits of the candidates. At

any rate, it is a matter of perception and balancing of various

factors, as observed supra. The legislative judgment cannot be

faulted merely for the reason that the pro tempore directions of

this Court have not been scrupulously followed. As regards

acquittals, it is reasonable to take the view that such information

will not be of much relevance inasmuch as acquittal prima facie

implies that the accused is not connected with the crime or the

prosecution has no legs to stand. It is not reasonable to expect

that from the factum of prosecution resulting in the acquittal, the

voters/citizens would be able to judge the candidate better. On

the other hand, such information in general has the potential to

send misleading signals about the honesty and integrity of the

candidate.

I am therefore of the view that as regards past criminal

record, what the Parliament has provided for is fairly adequate.

One more aspect which needs a brief comment is the

exclusion of offences referred to in sub-Sections (1) and (2) of

Section 8 of the R.P. Act, 1951. Section 8 deals with

disqualification on conviction for certain offences. Those

offences are of serious nature from the point of view of national

and societal interest. Even the existing provisions, viz., Rule 4A

inserted by Conduct of Elections (Amendment) Rules, 2002

make a provision for disclosure of such offences in the

nomination form. Hence, such offences have been excluded

from the ambit of Clause (ii) of Section 33A.

IV. (2). Assets and liabilities

Disclosure of assets and liabilities is another thorny issue.

If the right to information is to be meaningful and if it is to serve

its avowed purpose, I am of the considered view that the

candidate entering the electoral contest should be required to

disclose the assets and liabilities (barring articles of household

use). A member of Parliament or State Legislature is an elected

representative occupying high public office and at the same

time, he is a 'public servant' within the meaning of Prevention of

Corruption Act as ruled by this Court in the case of P.V.

Narasimha Rao Vs. State [(1998) 4 SCC 626]. They are the

repositories of public trust. They have public duties to perform.

It is borne out by experience that by virtue of the office they hold

there is a real potential for misuse. The public awareness of

financial position of the candidate will go a long way in forming

an opinion whether the candidate, after election to the office had

amassed wealth either in his own name or in the name of family

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members viz., spouse and dependent children. At the time when

the candidate seeks re-election, the citizens/voters can have a

comparative idea of the assets before and after the election so

as to assess whether the high public office had possibly been

used for self-aggrandizement. Incidentally, the disclosure will

serve as a check against misuse of power for making quick

money-a malady which nobody can deny, has been pervading

the political spectrum of our democratic nation. As regards

liabilities, the disclosure will enable the voter to know, inter alia,

whether the candidate has outstanding dues payable to public

financial institutions or the Government. Such information has a

relevant bearing on the antecedents and the propensities of the

candidate in his dealings with public money. 'Assets and

liabilities' is one of the important aspects to which extensive

reference has been made in Association for Democratic Reforms

case. The Court did consider it, after an elaborate discussion, as

a vital piece of information as far as the voter is concerned. But,

unfortunately, the observations made by this Court in this

regard have been given a short shrift by the Parliament with little

realization that they have significant bearing on the right to get

information from the contesting candidates and such

information is necessary to give effect to the freedom of

expression.

As regards the purpose of disclosure of assets and

liabilities, I would like to make it clear that it is not meant to

evaluate whether the candidate is financially sound or has

sufficient money to spend in the election. Poor or rich are alike

entitled to contest the election. Every citizen has equal

accessibility in public arena. If the information is meant to

mobilize public opinion in favour of an affluent/financially sound

candidate, the tenet of socialistic democracy and the concept of

equality so firmly embedded in our Constitution will be

distorted. I cannot also share the view that this information on

assets would enable the public to verify whether unaccounted

money played a part in contesting the election. So long as the

Explanation-I to Section 77 of R.P. Act, 1951 stands and the

contributions can legitimately come from any source, it is not

possible for a citizen/voter to cause a verification to be made on

those lines. In my opinion, the real purposes of seeking

information in regard to assets and liabilities are those which I

adverted to in the preceding paragraph. It may serve other

purposes also, but, I have confined myself to the relevancy of

such disclosure vis--vis right to information only.

It has been contended with much force that the right to

information made available to the voters/citizens by judicial

interpretation has to be balanced with the right of privacy of the

spouse of the contesting candidate and any insistence on the

disclosure of assets and liabilities of the spouse invades his/her

right to privacy which is implied in Article 21. After giving

anxious consideration to this argument, I am unable to uphold

the same. In this context, I would like to recall the apt words of

Mathew J, in Gobind Vs. State of M.P. [(1975) 2 SCC 148]. While

analyzing the right to privacy as an ingredient of Article 21, it

was observed:

"There can be no doubt that privacy-

dignity claims deserve to be

examined with care and to be denied

only when an important

countervailing interest is shown to be

superior" (emphasis supplied).

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It was then said succinctly:

"If the Court does find that a claimed

right is entitled to protection as a

fundamental privacy right, a law

infringing it must satisfy the

compelling State interest test. Then

the question would be whether a

State interest is of such paramount

importance as would justify an

infringement of the right."

It was further explained-

"Privacy primarily concerns the

individual. It therefore relates to and

overlaps with the concept of liberty.

The most serious advocate of privacy

must confess that there are serious

problems of defining the essence and

scope of the right. Privacy interest in

autonomy must also be placed in the

context of other rights and values."

By calling upon the contesting candidate to disclose the assets

and liabilities of his/her spouse, the fundamental right to

information of a voter/citizen is thereby promoted. When there is

a competition between the right to privacy of an individual and

the right to information of the citizens, the former right has to

be subordinated to the latter right as it serves larger public

interest. The right to know about the candidate who intends to

become a public figure and a representative of the people would

not be effective and real if only truncated information of the

assets and liabilities is given. It cannot be denied that the family

relationship and social order in our country is such that the

husband and wife look to the properties held by them as

belonging to the family for all practical purposes, though in the

eye of law the properties may distinctly belong to each of them.

By and large, there exists a sort of unity of interest in the

properties held by spouses. The property being kept in the name

of the spouse benami is not unknown in our country. In this

situation, it could be said that a countervailing or paramount

interest is involved in requiring a candidate who chooses to

subject himself/herself to public gaze and scrutiny to furnish the

details of assets and liabilities of the spouse as well. That is one

way of looking at the problem. More important, it is to be noted

that the Parliament itself accepted in principle that not only the

assets of the elected candidates but also his or her spouse and

dependent children should be disclosed to the constitutional

authority and the right of privacy should not come in the way of

such disclosure; but, the hitch lies in the fact that the disclosure

has to be made to the Speaker or Chairman of the House after he

or she is elected. No provision has been made for giving

access to the details filed with the presiding officer of the

House. By doing so, the Parliament has omitted to give effect to

the principle, which it rightly accepted as a step in aid to

promote integrity in public life. Having accepted the need to

insist on disclosure of assets and liabilities of the elected

candidate together with those of other family members, the

Parliament refrained from making a provision for furnishing the

information at the time of filing the nomination. This has

resulted in jeopardizing the right to information implicitly

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guaranteed by Article 19(1)(a). Therefore, the provision made in

Section 75A regarding declaration of assets and liabilities of the

elected candidates to the presiding officer has failed to

effectuate the right to information and the freedom of expression

of the voters/citizens.

IV. (3). Educational qualifications

The last item left for discussion is about educational

qualifications. In my view, the disclosure of information

regarding educational qualifications of a candidate is not an

essential component of the right to information flowing from

Article 19(1)(a). By not providing for disclosure of educational

qualifications, it cannot be said that the Parliament violated the

guarantee of Article 19(1)(a). Consistent with the principle of

adult suffrage, the Constitution has not prescribed any

educational qualification for being Member of the House of the

People or Legislative Assembly. That apart, I am inclind to think

that the information relating to educational qualifications of

contesting candidates does not serve any useful purpose in the

present context and scenario. It is a well known fact that barring

a few exceptions, most of the candidates elected to Parliament

or the State Legislatures are fairly educated even if they are not

Graduates or Post-Graduates. To think of illiterate candidates is

based on a factually incorrect assumption. To say that well

educated persons such as those having graduate and post-

graduate qualifications will be able to serve the people better

and conduct themselves in a better way inside and outside the

House is nothing but overlooking the stark realities. The

experience and events in public life and the Legislatures have

demonstrated that the dividing line between the well educated

and less educated from the point of view of his/her calibre and

culture is rather thin. Much depends on the character of the

individual, the sense of devotion to duty and the sense of

concern to the welfare of the people. These characteristics are

not the monopoly of well educated persons. I do not think that it

is necessary to supply information to the voter to facilitate him

to indulge in an infructuous exercise of comparing the

educational qualifications of the candidates. It may be that

certain candidates having exceptionally high qualifications in

specialized field may prove useful to the society, but it is natural

to expect that such candidates would voluntarily come forward

with an account of their own academic and other talents as a

part of their election programme. Viewed from any angle, the

information regarding educational qualifications is not a vital

and useful piece of information to the voter, in ultimate analysis.

At any rate, two views are reasonably possible. Therefore, it is

not possible to hold that the Parliament should have necessarily

made the provision for disclosure of information regarding

educational qualifications of the candidates.

V. Conclusions:

Finally, the summary of my conclusions:

1. Securing information on the basic details concerning the

candidates contesting for elections to the Parliament or

State Legislature promotes freedom of expression and

therefore the right to information forms an integral part of

Article 19(1)(a). This right to information is, however,

qualitatively different from the right to get information

about public affairs or the right to receive information

through the Press and electronic media, though, to a

certain extent, there may be overlapping.

2. The right to vote at the elections to the House of people or

Legislative Assembly is a constitutional right but not

merely a statutory right; freedom of voting as distinct from

right to vote is a facet of the fundamental right enshrined in

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Article 19(1)(a). The casting of vote in favour of one or the

other candidate marks the accomplishment of freedom of

expression of the voter.

3. The directives given by this Court in Union of India Vs.

Association for Democratic Reforms [(2002) 5 SCC 294]

were intended to operate only till the law was made by the

Legislature and in that sense 'pro tempore' in nature. Once

legislation is made, the Court has to make an independent

assessment in order to evaluate whether the items of

information statutorily ordained are reasonably adequate

to secure the right of information available to the

voter/citizen. In embarking on this exercise, the points of

disclosure indicated by this Court, even if they be tentative

or ad hoc in nature, should be given due weight and

substantial departure therefrom cannot be countenanced.

4. The Court has to take a holistic view and adopt a balanced

approach in examining the legislation providing for right to

information and laying down the parameters of that right.

5. 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 other than

that spelt out in the enactment irrespective of the need of

the hour and the future exigencies and expedients and

secondly for the reason that the ban operates despite the

fact that the disclosure of information now provided for is

deficient and inadequate.

6. The right to information provided for by the Parliament

under Section 33A in regard to the pending criminal cases

and past involvement in such cases is reasonably

adequate to safeguard the right to information vested in

the voter/citizen. However, there is no good reason for

excluding the pending cases in which cognizance has been

taken by Court from the ambit of disclosure.

7. The provision made in Section 75A regarding declaration

of assets and liabilities of the elected candidates to the

Speaker or the Chairman of the House has failed to

effectuate the right to information and the freedom of

expression of the voters/citizens. Having accepted the

need to insist on disclosure of assets and liabilities of the

elected candidate together with those of spouse or

dependent children, the Parliament ought to have made a

provision for furnishing this information at the time of filing

the nomination. Failure to do so has resulted in the

violation of guarantee under Article 19(1)(a).

8. The failure to provide for disclosure of educational

qualification does not, in practical terms, infringe the

freedom of expression.

9. The Election Commission has to issue revised instructions

to ensure implementation of Section 33A subject to what is

laid down in this judgment regarding the cases in which

cognizance has been taken. The Election Commission's

orders related to disclosure of assets and liabilities will

still hold good and continue to be operative. However,

direction No.4 of para 14 insofar as verification of assets

and liabilities by means of summary enquiry and rejection

of nomination paper on the ground of furnishing wrong

information or suppressing material information should not

be enforced.

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Accordingly, the writ petitions stand disposed of without

costs.