No Acts & Articles mentioned in this case
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CASE NO.:
Appeal (civil) 5941-5942 of 1999
PETITIONER:
M/s Amco Batteries Limited, Bangalore
RESPONDENT:
Collector of Central Excise, Bangalore
DATE OF JUDGMENT: 26/02/2003
BENCH:
M.B. SHAH & D. M. DHARMADHIKARI
JUDGMENT:
J U D G M E N T
Shah, J.
It is apparent that in taxation matters, amendments,
clarifications, exemption notifications or their withdrawal play an
important role in increasing litigation. Repeatedly, it is stated that law
and procedure thereunder is required to be streamlined and simplified,
yet clarifications, amendments and notifications are issued creating
confusion and leaving Judges and Lawyers to search for their exact
meaning. In such a state of affairs, in some cases, it is difficult to
draw inference of fraud, wilful concealment or suppression of facts so
as to attract penal consequences.
Short facts of the case are that appellant is engaged in
manufacture of lead acid electric storage batteries and parts thereof
falling under Tariff Heading 85.07 in its two factories, one at Hebbal
and other at Mysore Road plant. Lead in the form of ingots is the
main raw material required for manufacture of the batteries. During
the course of manufacture of the parts, certain quantities of waste and
scrap is sent to the job workers who manufacture ingots out of that
and return its ingots to the appellant who use the same in the
manufacture of their final products. The question is with regard to
payment of excise duty on waste and scrap sent to the job workers.
After issuance of show cause notice and adjudicating the matter, the
authority confirmed demand of duty and imposed penalty for the
period from 1st March 1986 to 13th August 1989. That order was
challenged before the Tribunal.
Admittedly, appellant obtains lead ingots from following four
sources:
1) imports by appellant on payment of additional duty of
customs.
2) Duty-paid lead ingots obtained through MMTC.
3) Ingots purchased from refiners.
4) Ingots received from job workers to whom waste & scrap
of lead was sent without payment of duty to convert them
into lead ingots.
For the purchase of ingots from first and second source, there is
no dispute. With regard to the third source, namely, ingots purchased
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from refineries, it is exempted under Notification 37/81-CE. The
relevant part of the said notification which is quoted by the Tribunal is
as under:
"The Central Government hereby exempts lead
unwrought, falling under heading No. 78.01 of the
Schedule to the Central Excise Tariff Act, 1985 (5 of
1986), if such lead unwrought is produced out of one or
more of the following materials, from the whole of the
duty of excise leviable thereon, namely:
(a) old scrap of lead;
(b) scrap obtained from lead unwrought on
which appropriate amount of duty of excise,
or, as the case may be, the additional duty
leviable under section 3 of the Customs
Tariff Act, 1975 (51 of 1975) has been paid;
(c) lead waste and scrap, falling under heading
No. 78.02 on which appropriate amount of
duty of excise, or, as the case may be, the
additional duty leviable under section 3 of
the Customs Tariff Act, 1975 (51 of 1975),
has been paid;
(d) lead ash, lead slag and lead residues."
Thereafter, scrap was exempted under notification No. 186/84-CE
dated 1.8.1984. Relevant part of the Notification is as under:
"The Central Government hereby exempts wastes
and scrap of lead, falling under sub-heading No. 7802.00
of the Schedule to the central Excise Tariff Act, 1985 (5
of 1986) from the whole of the duty of excise leviable
thereon under section 3 of the Central Excise and Salt
Act, 1944 (1 of 1944):
Provided that such waste and scrap
(i) are manufactured from goods, falling under
the Heading Nos. 78.01 to 78.05 of the said
Schedule on which the duty of excise
leviable under the said section 3 of the
additional duty leviable under the Customs
Tariff Act, 1975 (51 of 1975), as the case
may be, has already been paid, or
(ii) arise from goods, falling under any Heading
or sub-heading No. of the same Schedule
other than Heading Nos. 78.01 to 78.05
thereof manufactured or produced in India.
Explanation: For the purpose of this notification all
stocks of lead and products thereof in the country, except
such stocks as are clearly recognisable as being non-
duty-paid, shall be deemed to be lead and products
thereof on which the duty has already been paid."
Further, by notification 246/87-CE dated 2.11.1987, 2nd proviso
to the notification 186/84-CE (as amended) was added immediately
before the existing Explanation. Said proviso is also reproduced
below:
"Provided further that the exemption contained in
this notification shall apply only if:-
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No credit has been taken on the input from which
such scrap has been generated under rule 57A of the
Central Excise Rules, 1944; or
(ii) an amount equivalent to the credit taken, if
any, on the input from which such scrap has
been generated, has been debited back in
the RG 23A account or the current account
maintained by the assessee."
At the time of hearing of these appeals, learned counsel for the
appellant has only submitted that there was no wilful suppression on
the part of the appellant and hence, extended period under proviso to
sub-section (1) of Section 11A of the Central Excise Act (hereinafter
referred to as "the Act") ought not to have been invoked.
It is admitted that during the manufacture of batteries from the
ingots received by first and second source, waste and scrap of lead
emerges. Such scrap is removed by the appellant and sent to the job
workers which are small units engaged in recovery/reclaiming of
metal from the scrap. The recovered metal in the form of lead ingots
is returned by the job workers to the appellant and the appellant uses
the same for manufacture of batteries. Admittedly, there is no sale of
scrap by the appellant to the job workers. The entire movement of the
scrap to the job workers and receipt of the ingots from the job workers
is recorded in the regular books of accounts and proper documentation
is maintained in the form of delivery challans.
It has also been pointed out that lead ingots, scrap and batteries
are all covered by the MODVAT scheme even during the relevant
period. Since the scrap is ultimately used in the manufacture of
batteries, even if any duty is paid/payable on the scrap, the same is
available as MODVAT credit to the appellant. Thus the exercise of
payment of excise duty was entirely revenue neutral.
From the facts stated above, particularly the fact that entire
movement of waste and scrap to the job workers and receipt of ingots
manufactured by the job workers is recorded in regular books of
accounts and proper documentation is maintained in form of delivery
challan and that there was no reason for the appellant to suppress as it
was entitled to have facility of MODVAT Scheme, it would be
difficult to hold that there was any wilful suppression on the part of
the appellant which would empower the authorities to invoke
extended period of limitation under proviso to Section 11A (1) of the
Act. This has been made clear repeatedly by this Court. In M/s
Padmini Products v. Collector of Central Excise, Bangalore [(1989)
4 SCC 275] this Court has held that something positive other than
mere inaction or failure on the part of the manufacturer or producer
of conscious or deliberate withholding of information when the
manufacturer knew otherwise, is required to be established before it is
saddled with any liability beyond the period of six months. The Court
pertinently observed that mere failure or negligence on the part of the
producer or manufacturer either not to take out a licence in case where
there was scope for doubt as to whether licence was required to be
taken out or where there was scope for doubt whether goods were
dutiable or not, would not attract Section 11-A of the Act.
In the present case also, there is no material on record from
which it could be inferred or established that duty of excise was not
levied or paid by reason of any fraud, collusion or any wilful
misstatement or suppression of facts, or contravention of any of the
provisions of the Act or the Rules made thereunder with intent to
evade payment of duty. It was a bonafide belief on the part of the
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appellant that scrap and waste, which was recovered while
manufacturing batteries, was exempt from levy of excise duty.
Further, appellant was entitled to get benefit of MODVAT scheme,
therefore, there was no justifiable reason for the appellant to suppress
any fact.
In the result, the appeals are partly allowed. The matters are
remitted to the Adjudicating Authority to modify the demand by
confining it to the period of six months prior to issue of show cause
notice and pass consequential orders.
Ordered accordingly. There shall be no order as to costs.
IN THE SUPPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 16838 OF 2002
Federation of Railway Officers Association & Ors. Petitioners
Versus
Union of India Respondents
[With SLP (C) No. 17306/2002]
J U D G M E N T
RAJENDRA BABU, J. :
The petitioners before us filed a writ petition in the High Court of Delhi
challenging the formation of seven railway zones. The petitioners contended that
the notification issued for formation of new zones is violative of Section 3 of the
Railways Act, 1989 (hereinafter referred to as 'the Act') as the same is not
formed for the purpose of efficient administration of the railways.
The petitioners relied upon a proceeding of the Railway Board and a note
prepared for the consideration of the meeting to be held on November 30, 2001.
There are several aspects considered in that note, namely, (i) that there is
unprecedented financial crunch in the railways and recommendations made by
the Railways Reforms Committee in 1984 to form new four Zones remained
unimplemented on account of the same and the position has not improved but
has only worsened; (ii) that on account of technological innovations by utilisation
of Information Technology the Railways can centralise their operations and thus
reducing the relevance of the new zones; (iii) that the Comptroller & Auditor
General has recommended for reconsideration of the decision for creation of new
zones and division from the point of view of financial viability; (iv) that the
Standing Committee of Parliament on Railway have recommended for creation of
new zones on the basis of work load, efficiency and effective management; (v)
that the Railway Convention Committee recommended that instead of creating
new zones expenditure to be incurred on the same could be better utilised for
procurement of rolling stock, doubling and renewal of railway lines and in
electrification programmes; (vi) that the management cadres and staff
federations are not in favour of new zones and divisions; (vii) that Rakesh
Mohan Committee has suggested that the formation of additional zones would be
of dubious merit and would add substantial cost and be of little value to the
system; (viii) that there would be tremendous dislocation in the zones, operating
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discipline, traffic accounts and staff matters that will affect the system adversely;
(ix) that the creation of zones or divisions apart from causing upheaval will also
divert the railway's attention to restructure itself to be more competitive in the
market; (x) that therefore, the Board was of the view that it would not be
appropriate for formation of seven new zones in the context of financial crunch,
the opinion expressed by the Parliamentary Committees and, therefore, calls for
further examination of the matter. The petitioners also placed reliance upon the
draft that has been prepared by the Member Secretary of the Committee to
finalise the detailed territorial jurisdiction of new zones and stated that "Though
the recommendations of the Study Group were accepted by the Railways in
principle, the entire issue was further examined in the Railway Board and the
final proposal was made for the creation of the six new zones, four as per the
Report of the Study Group and two additional zones with the objective of the
development of the backward areas particularly of Orissa and Bihar. Another
zone of Bilaspur was added as it had heavy workload and in view of the
continuous long pending demand of the region." It was very strongly
contended that though Railway Reforms Committee had recommended in 1984
for formation of new zones, the situation has entirely changed in view of various
factors referred to above and this was admitted position inasmuch as in
Parliament the Minister for Railways answered that no study regarding utilisation
of new zones had been conducted and even as late as on March 1, 2002 it was
stated that owing to resource crunch the proposed new zones and divisions will
only gradually become operational depending on the availability of the investable
resources and, therefore, no time frame could be fixed. It was pointed that the
expenditure in the creation of new zones would result in accumulation of fresh
arrears regarding replacement of over aged assets, thereby affecting safety.
Reliance was also placed on a letter addressed by six former Chairmen of the
Railway Board. In their joint letter to the Prime Minister sent on July 12, 2002
they stated that the creation of new zones would be operational debacle, a
financial disaster and an administrative blunder and from considerations of sound
management and operational efficiency, there is a case
for reduction in the number of zonal rail headquarters. Therefore, it was
contended that the decision in respect of at least three of the seven zones,
namely, Hazipur, Bilaspur and Bhubaneswar is not based on any expert study
whatsoever and is based on extreneous considerations not germane to efficiency
in the railways. For reasons already stated, it was submitted that the
recommendations of the Railways Reforms Committee has become outdated in
view of the later developments. It was also contended that the formation of
Hazipur zone was decided by the Government without any study or report of any
expert body within three weeks of a new Railway Minister assuming office whose
constituency was Hajipur and Bilaspur zone was announced in an election rally
by Shri Atal Bihari Vajpayee, Prime Minister, again without any study or
recommendation of any expert body. Therefore, it is submitted that the decision
of the Government in this regard is mala fide. It was further contended that
when the statute has provided the guidance in regard to the formation of a policy,
the same should be based on proper information obtained from appropriate
sources and in this context, the petitioners placed reliance on the decision of this
Court in Bangalore Medical Trust vs. B.S. Muddappa, 1991 (4) SCC 54, and
also pointed out that in Kasturi Lal Lakshmi Reddy vs. State of Jammu &
Kashmir & Anr, 1980 (3) SCR 1338, Ramana Dayaram Shetty vs.
International Airport Authority of India & Ors.,1979 (3) SCC 489; Ugar
Sugar Works Ltd. vs. Delhi Administration & Ors., 2001 (3) SCC 635 and
State of U.P. vs. U.P. University Colleges Pensioners' Association, 1994
(2) SCC 729, it was held that even policy decisions of the Government can be
interfered with if it is arbitrary or mala fide and manifestly contrary to public
interest. They, therefore, submitted that the action taken by the Government
should be quashed in reversal of the judgment of the High Court.
Dr. D.P. Pal, the learned senior Advocate who appears in SLP (C) No.
17306/2002 , submitted that the provision of Section 3 of the Act provides for
test as to formation of railway zones and the critical test is efficiency in the
administration which is an objective test. The criterion being objective, the Court
can examine the material on record to draw an inference one way or the other.
The efficiency would increase only if it can reduce the cost of administration and
the earnings in the zone will increase.
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The learned Attorney General referred to the constitution of the Railway
Reforms Committee on May 12, 1981 to recommend ways of enhancing the
efficiency of the functioning of the Indian railways. At that time, there were nine
zones in existence, namely, (i) Eastern Railways (Calcutta), (ii) South Eastern
Railways (Calcutta), (iii) Central Railways (Bombay), (iv) Western Railways
(Bombay), (v) Northern Railways (Delhi), (vi) Southern Railways (Madras), (vii)
North Eastern Railways (Gorakhpur), (viii) North Eastern Frontier Railways
(Gauhati), and (ix) South Central Railways (Secunderabad). Railway Reforms
Committee proposed the addition of four new zones in phases as follows : in
Phase 1, East Central and North Western Railways; in Phase II, North Central
Railways; and in Phase III, Southern Western Railways to be considered later.
The Railway Reforms Committee also projected the need for 15 zones by the
year 2000. It is submitted that the former Chairmen of the Railway Board,
namely, Shri M.S. Gujral and Shri M.N. Bery were associated with the Railway
Reforms Commission's deliberations as Member and Chairman of the Working
Group of Structural Reorganisation. In February 24, 1994 the Minister of
Railways in his Budget speech for the year 1984-85 stated that it was necessary
to conduct a detailed study to rationalise the geographical distribution of existing
zones and divisions and on May 6, 1994 a Study Group was set up consisting of
Advisers of the Railway Board to go into the question of reorganisation of railway
zones and divisions The Study Group after examination of the entire gamut of the
issues pertaining to railway reorganisation recommended the setting up of four
additional railways zones, namely, North Western Railway with its headquarters
at Jaipur, South Western Railway with its headquarters at Bangalore, East
Central Railway with its headquarters at Jabalpur and North Central Railway with
its headquarters at Allahabad. The Minister for Railways in his Budget speech
for the year 1995-96 stated that the Committee's recommendations had been
accepted. The Union Cabinet, however, deferred the proposal of creating four
zones and called for more material from the Ministry of Railways. Thereafter,
the Union Cabinet headed by Shri Deve Gowda, then Prime Minister, considered
these proposals in their meeting held on July 12, 1996 as to formation of six new
railway zones and they are North Western Railway with its headquarters at
Jaipur, South Western Railway with its headquarters at Bangalore, West
Central Railway with its headquarters at Jabalpur, North Central Railway with its
headquarters at Allahabad, East Coast Railway with its headquarters at
Bhubneswar and East Central Railway with its headquarters at Hajipur. At the
time of considering the same, the Union Cabinet took into account the financial
viability, traffic growth and the norms of carving out a zone before deciding the
creation of six new zones on July 16, 1996. Minister of Railways in his Budget
speech for the year 1996-97 announced new six zones. Thereafter, on
September 9, 1998 the Union Cabinet headed by Prime Minister Shri Atal Bihari
Vajpayee approved the creation of a new seventh Zone with headquarters at
Bilaspur. On February 22, 1999 the Union Cabinet also decided to move the
headquarters of the South Western Railway from Bangalore to Hubli. From 1999
to 2001 the work of Zones had been progressing slowly and a debate was going
on for and against the formation of new zones. During this period Railway Board
had also expressed reservations in going ahead with formation of zones mainly
due to financial crunch. On 29th November 2001 the Minister for Railways while
responding to various questions raised in Parliament clarified as follows :-
"In the year 1995 the Union Cabinet had deferred a proposal based
on the recommendations of the RRC for creating 4 new Zones.
However, in the year 1996, the Union Cabinet had examined and
approved the proposal for creating 6 new zones. Subsequently,
the Government decided to form the 7th Zone with headquarters at
Bilaspur. It is not correct to allege that there had been no
examination of the proposal. As far as opinions and observations
on the new Zones are concerned, there have always been two
opposing views. Further, the slow progress in this regard is
attributable to a resource crunch. However, there was never any
intention not to proceed with the creation of any of the new Zones
as consecutive Governments (the United Front and the National
Democratic Alliance governments) had taken a policy decision to
create the new Zones."
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In December 2001 Railway Board initiated action for operationalisation of
new zones. On June 4 and 14, 2002 the Railway Board met and decided to
operationalise North Western Railway with its headquarters at Jaipur and East
Central Railway with its headquarters at Hajipur by October 1, 2002 after
finalising their respective jurisdictions. In the meanwhile, on July 5, 2002 a writ
petition was filed by Biswajit Deb, petitioner in SLP No. 17306/2002, before the
Calcutta High Court challenging the notification of setting up a new zone. The
Calcutta High Court dismissed the said petition holding that setting up of new
zone is purely a policy decision of the Railway Board to arrange their own
administration which cannot be adjudicated in a Public Interest Litigation. The
Delhi High Court in the case of petitioner herein in SPECIAL LEAVE PETITION
(CIVIL) NO. 16838 OF 2002 held that the jurisdiction of the court in the matter of
interference with policy decision of the Government is very limited; that the
question whether such a decision should have been taken or whether such a
decision would ultimately be beneficial to the Railway Administration in general is
not a matter which is within the domain of the court. It is also noticed that the
fact that there is no expert body decision in the matter would not call for
consideration in a writ proceeding merely because the petitioner or some other
persons may have different views in the matter.
On July 26, 2002 a detailed note of reorganisation of the railways was
sent to the Union Cabinet to keep it apprised of the current situation and the
views of the Standing Committee of Parliament on Railways (1996-97), the
Railway Convention Committee (1996), Railway federations, the Deputy
Comptroller and Auditor General (1999), the Comptroller and Auditor General
(2001) and the comments of Rakesh Mohan Committee (2001) against the
formation of additional railway zones were also placed before the Cabinet and
the Cabinet did not review its previous decision. Two new zones, that is, North
Western Railway with its headquarters at Jaipur and East Central Railway with its
headquarters at Hajipur began functioning in accordance with the notification
dated June 14, 2002 issued by the Railway Board. It is also pointed out that
Parliament had approved the establishment of a Special Railway Fund of Rs.
17, 000 crores by Government to ensure the safety of the railways in accordance
with the recommendations of the Railway Safety Review Committee Report,
2000. All the safety related tasks to be carried out on the basis of moneys drawn
from this Fund have been listed and placed before Parliament and have been
approved by Parliament as part of the Railway Budget.
The learned Attorney General also placed reliance on the decision of this
Court in Rustom Cavasjee Cooper vs. Union of India, 1970 (3) SCR 530,
wherein whether a right arising under Article 19(1)(g) is not protected against
operation of any law imposed in the interest of general public to be reasonable
restrictions on the exercise of the right conferred by the said sub-clause was
considered. In this context, an argument was raised that the enactment of Bank
Nationalisation was not in the larger interest of the nation but to subserve political
ends, that is , not with the object to ensure better banking facilities, or to make
them available to a wider public, but only to take control over the deposits of the
public with the major banks, and to use them as a political lever against
industrialists who had built up industries by decades of industrial planning and
careful management and the Court's attention was invited to a mass of evidence
from the speeches of the Deputy Prime Minister and of the Governor and the
Deputy Governor of the Reserve Bank and also extracts from the Reserve Bank
Bulletins issued from time to time and other statistical information collected from
official sources in support of the thesis of the petitioner that the performance of
the named banks exceed the targets laid down by the Reserve Bank in its
directives; that the named banks had effectively complied with the requirements
of the law and they had served the diverse interests including small scale sector
and so on. On the other hand, the learned Attorney General in that case
contended that the commercial banks followed a conservative policy because
they had to look primarily to the interests of the shareholders and on that account
could not adopt bold policies or schemes for financing the needy and worthy
causes and that if the resources of the banking industry are properly utilised for
the weaker sections of the people economic regeneration of the nation may be
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speedily achieved; that 28% of the towns in India were not served by commercial
banks; that there had been unequal development of facilities in different part of
the country and deserving sections were deprived of the benefit of an important
national resources resulting in economic disparities.
This Court held that Court is not the forum in which these conflicting
claims may be debated; that whether there is a genuine need for banking facility
in the rural areas, whether certain classes of the community are deprived of the
benefit of the resources of the banking industry, whether administration by the
Government of the commercial banking sector will not prove beneficial to the
community and will lead to rigidity in the administration, whether the Government
administration will eschew the profit motive and even if it be eschewed, there will
accrue substantial benefits to the public, whether an undue accent on banking as
a means of social regeneration, especially in the backward areas, is a doctrinaire
approach to a rational order of priorities for attaining the national objectives
enshrined in our Constitution and whether the policy followed by the Government
in office or the policy propounded by its opponents may reasonably attain the
national objectives are matters which have little relevance in determining the
legality of the measure and it is again not for this Court to consider the relative
merits of the different political theories or economic policies.
The learned Attorney General also relied upon the decision in BALCO
Employees' Union (Regd.) vs. Union of India & Ors., 2002 (2) SCC 333,
case wherein it is observed that :-
"It is evident that it is neither within the domain of the courts
nor the scope of the judicial review to embark upon an enquiry as to
whether a particular public policy is wise or whether better public
policy can be evolved. Nor are our courts inclined to strike down a
policy at the behest of a petitioner merely because it has been
urged that a different policy would have been fairer or wiser or more
scientific or more logical."
The learned Attorney General also pointed out similar observations in
Narmada Bachao Andolan vs. Union of India & Ors., 2000 (10) SCC 664.
Dr. Pal insisted that the provisions of Section 3 of the Act provides the
norms upon which a railway zone can be formed and that is administrative
efficiency. Shri Prashant Bhushan and Dr. Pal have, as set forth earlier,
contended that on the basis of the material placed by them the formation of
zones now under challenge will only result in deterioration of the efficiency of
administrative system and not improve, while the stand of the learned Attorney
General is that the Government has taken note of the workload index,
geographical spread, strength of manpower, traffic streams and patterns for
determining optimum size of a zone or a division and, in this context, territorial,
ethnic, linguistic or such other considerations are not the basis for reorganisation
of the railway zones.
In examining a question of this nature where a policy is evolved by the
Government judicial review thereof is limited. When policy according to which or
the purpose for which discretion is to be exercised is clearly expressed in the
statute, it cannot be said to be an unrestricted discretion. On matters affecting
policy and requiring technical expertise Court would leave the matter for decision
of those who are qualified to address the issues. Unless the policy or action is
inconsistent with the Constitution and the laws or arbitrary or irrational or abuse
of the power, the Court will not interfere with such matters.
Tested in this background set forth above, what we have to see is
whether Government has acted within the parameters of Section 3 of the Act or
not. Section 3 of the Act mentions constitution of the railway zones for the
purpose of efficient administration. Therefore, to find out what would constitute
efficient administration we have to look to various matters on the basis of which
the railway zones have been constituted and have been working. In this context,
a Committee had been constituted by the Government known as Railway
Reforms Committee which submitted its report in July 1984 after exhaustive
consideration of various aspects. The Committee, after taking into consideration
the workload and manpower along with the concepts of modernisation,
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computerisation and updating of technology, traffic pattern, evolved certain
formula for the formation of zones. And the Committee further stated that "as for
the criterion of geographical spread and the time taken to reach the remotest
point of a Zone or Division from its headquarters, each case would have to be
examined individually. This is so because the headquarters of the various Zones
and Divisions are not always centrally located." Ultimately, the Committee
concluded that the immediate requirement of additional zones is three if one
goes by the criterion of workload and four if one goes by the criterion of
manpower and as far as divisions were concerned, immediate requirement for
additional Divisions would appear to be 15 by the criterion of workload and six by
the criterion of manpower. The requirement of Zones and Divisions on the
basis of the workload by the year 2000 would be even higher. But they did not
finally suggest that the Zones and Divisions should be formed at that rate but
indicated their interest for examining all those aspects of the matter.
Thereafter a Study Group was constituted consisting of several officers to
critically analyse the impact of major developmental projects, to review or define
criteria to be adopted while considering issues/demands relating to creation or
reorganisation of Zones and Divisions amongst other aspects. They suggested
that for addressing the issues relating to rationalisation of geographical
distribution and reorganisation of Zones and Divisions, it was essential that there
should be broad quantitative norms in consonance with the Railway Reforms
Committee's recommendations made earlier. The workload index is now
redefined as total transportation effort of a Zone/Division which is also
adequately weighted for the financial performance of these units and should
therefore be the over-riding criterion. It was also taken note of that the norm of
200 units by 2000 AD is the optimum value of the workload index both in the
case of zones as well as divisions and this interpolated to 1992-93, that is, the
last year for which estimated workload indices are presently available. Besides
workload, major decision variable is accessibility. They suggested that
zones/Divisions which have workload indices in excess of criticality norm and
also poor accessibility deserve immediate relief. Heavily worked zones/divisions
which are compact, that is, where accessibility of the remote points/activity
centres is good and, therefore, does not pose any administrative problem on this
account, need not necessarily be truncated for providing relief. Further, in the
case of lightly worked zones/divisions, accessibility alone will not be considered
as a necessary and sufficient criterion for providing relief through reorganisation.
They are also of the view that the average travelling time between Zonal and
Divisional Headquarters and its remote activity centres by a representative
Mail/Express train should be about 6 hours in either case. High workload with
poor accessibility is the only necessary as well as sufficient condition for
providing relief to such zones/divisions through the setting up of new zones and
divisions which would arise only after full scope of territorial readjustments
between existing, adjoining zones/divisions are fully explored or exhausted.
They recommended formation of zones North-Western, South-Western, East-
Central and North-Central. Adopting the same criteria as was done by the
R.R.C, to which we have adverted already, this study group summed up in its
report as follows :-
"The identification of zones/ divisions which deserve attention/relief
has been done on the basis of their workload. For computing a
zonal / divisional workload index both physical as well as financial
output indicators are taken into account. The norm of 200 workload
units in 2000 AD (as had also been suggested by the RRC) is
defined as the optimum value of the workload index.
Besides workload the accessibility of activity
centres/remote points from its respective zonal/divisional
headquarters is the other important criterion. The norm in this
case is defined as an average travelling time (between the zonal
and the divisional headquarters and, also, between the divisional
headquarters and its remote activity centres) of about six (6) hours.
Based on the workload and accessibility norms defined
above, zones/divisions which have workload indices in excess of
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the criticality norm and also poor accessibility have been identified
for the purposes of providing relief through reorganisation/creation
of new zones and divisions. Ethnic, linguistic and/or territorial (i.e.
State Boundaries, etc.) considerations do not form the basis for
evaluating issues pertaining to railway reorganisation.
The highlights of the Study Group are given in Annexure-I.
M.R. in his Budget (1995-96) Speech on 14.3.95 had, inter alia
conveyed that the Committee's recommendations had been
accepted by this Ministry and we being processed further."
The credibility of the said report is questioned and its bonafides are
doubted on behalf of the petitioners. The various factors considered by them
are also certainly relevant for the efficient administration of the Railways. None
of these factors taken note of by the study group can be stated to be irrelevant in
this context. But what is to be seen is whether the report made by them would, in
essence, be not worthy of credit and not merely on imaginary basis such as they
are officers of the Government and they would have worked under pressure of
the Minister concerned to draw up a report to suit his whims. Therefore, we do
not think, we can accept the attack made by the petitioners on the report of the
study group.
Cabinet notes were prepared, inter alia, after referring to RRC report,
report of the study group extracts of previous cabinet proceedings on the subject,
views of the Parliamentary Standing Committee on RCC, views of Railway
Federations, reports of Comptroller and Auditor General of India, comments of
Rakesh Mohan Committee and proposal was made to set up six new zones - (1)
North-Western Railway, headquarters Jaipur; (2) South-Western Railway,
Headquarters Bangalore; (3) West-Central Railway, Headquarters Jabalpur; (4)
North-Central Railway, Headquarters Allahabad; (5) East-Central Railway,
Headquarters Hajipur and (6) East Coast Railway, Headquarters Bhubaneswar
and various details regarding the workload, route kilometers and information
regarding the accessibility and other criteria were fully furnished to the Cabinet.
It is indicated that with the criterion of six new zones the accessibility of the
Divisional Headquarters with Railway Headquarter will increase and the Indian
Railway average will improve to 6.2 hours from the existing 8.9 hours. As
regards the cost implication and strategy adopted detailed consideration was
made. The impact of the Information Technology was also taken into account.
Various views that had been expressed at different levels and in public both
opposing and supporting the formation of new zones were also set forth. On July
12, 1996 the Cabinet authorised the Ministry of Railways to make suitable
readjustments in the territorial jurisdiction of the zones.
It has been contended that the objective of developing backward areas or
to meet public demand new zones have been formed and such a step will not be
consistent with efficiency in administration. These two factors are noticed not in
isolation but along with other criteria as to increase in traffic load and
accessibility. Therefore, the contention ignores all the factors taken into
consideration and is not tenable. Even otherwise, to meet the demands of
backward areas cannot by itself be inconsistent with efficiency. When Railway is
a public utility service it has to take care of all areas including backward areas.
In doing so, providing service, efficient supervision and keeping the equipment
and other material in good and workable condition are all important factors. Such
services can be appropriately extended if there is an exclusive zone to cater to
such areas. If more facilities become available in those zones naturally efficiency
would go up. Therefore, the concept of "efficiency" should not be approached
in a doctrinaire or pedantic manner. Thus formation of zones in backward areas
for providing proper facilities and services will improve the efficiency and not
retard it. Merely setting up of new zone in a backward area cannot be
condemned only on the basis that it is being formed in a backward area,
particularly when it fulfils other criterion to which we have already adverted.
Even if we assume that there is force in the material placed by the
petitioners that by forming new railway zones efficiency in the railway
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administration would not enhance, the reasons given by the Government and
material placed by them in support of forming new railway zones is no less or
even more forceful. Further, when technical questions arise and experts in the
field have expressed various views and all those aspects have been taken into
consideration by the Government in deciding the matter, could it still be said that
this Court should reexamine to interfere with the same. The wholesome rule in
regard to judicial interference in administrative decisions is that if the
Government takes into consideration all relevant factors, eschew from
considering irrelevant factors and act reasonably within the parameters of the
law, courts would keep off the same. Even on the test suggested by Dr. Pal we
cannot travel outside this principle to sit in appeal on the decision of the
Government.
The decision in B.S.Muddappa's case is distinguishable both on principle
and on facts from the present case. The question in that case is whether 'park'
can be alloted to a trust for setting up of a private nursing home. There is no
application of mind by any of the authorities as to whether setting up a nursing
home in place of a 'park' would amount to an improvement as contemplated
under the statute with which this court was concerned in that case. In the
present case, the problem is entirely different. The question before the Court is
whether formation of zones is for efficient administration of Railways. On
this aspect we have considered the rival contentions including the material
placed before the Government of India and the criteria evolved for formation of
the zones. The test whether such formation of zones is for the purpose of
efficient administration of Railways have been duly considered by the
Government before taking decision while such consideration was lacking in
Muddappa's case. Hence, that decision cannot be of any assistance to
appellant. We have applied the principles set out in other decisions relied upon
by the appellant to the facts of the case in reaching our conclusion in this matter.
However, Shri Prashant Bhushan sought to impress upon us that within
three weeks of a new Railway Minister assuming office without any study or
report or any expert body a new railway Zone Hazipur was announced and steps
were taken to constitute such zone. But the material on record would indicate
otherwise. Matter has been under consideration of the Government since 1981
as to reorganisation of the zones. Thereafter, a Study Group was formed to look
into the matter to make its recommendations. It is only in 1996 a decision was
taken by the Government for a zone at Hazipur. If formation of a zone at Hazipur
as its headquarters fulfils the norms set up by the Government and there is
enough statistical data in that regard, it becomes difficult for us to state that the
same is mala fide. Allegations regarding malafides cannot be vaguely made and
it must be specific and clear. In this context, the concerned Minister who is
stated to be involved in the formation of new Zone at Hazipur is not made a
party who can meet the allegations.
The stand of the respondents is that in regard to East Central Zonal
Railway and the North Western Zonal Railways efficiency has shown
improvement for the months of October-November 2002 as compared to
October-November 2001 which is as under :-
Railway Revenue Tonnes Originating Earnings in
In million Tonnes In crores
2002
2001
%age
variation
2002
2001
%age
variation
East Central
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October
4.32
4.19
3.1
270.82
250.81
7.98
November
4.43
4.31
2.78
264.42
261.4
1.16
Oct + Nov
8.75
8.5
2.94
535.24
512.21
4.50
North Western
October
1.34
1.12
19.64
97.65
74.74
3065
November
1.23
1.23
0
89.25
73.91
20.75
Oct + Nov
2.57
2.35
9.36
186.9
148.65
25.73
Revenue Tonnes Originating
Railway
Month
2002
2001
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Variation
October
1.34
1.12
0.22
North-Western
November
1.23
1.23
0
Oct + Nov
2.57
2.35
0.22
October
2.24
2.47
-0.23
Western
November
2.25
2.43
-0.18
Oct + Nov
4.49
4.9
-0.41
October
3.58
3.59
-0.01
Total
November
3.48
3.66
-0.18
Oct + Nov
7.06
7.25
-0.19
If these figures furnished by respondents are correct then efficiency on
formation of the zones has certainly not deteriorated.
Shri Prashant Bhushan contended that Bilaspur zone was formed
subsequent to an announcement made by Shri Atal Bihari Vajpayee in his
election speech, but the allegation as to when he had made such a speech is not
set out either in the petition filed before the High Court or in these proceedings.
Unless full details are given as to place, time or date, it would be very difficult for
any one to deny the same, more so when Shri Atal Bihari Vajpayee has not
been impleaded as a party in these proceedings.
It is next contended by Shri Prashant Bhushan that though there may
have been justification for forming compact zones and they may be economically
viable whether Hazipur or Bilaspur or Bhubaneswar should be made zonal
Headquarters has not been adequately considered. The decision of the Central
Government to locate the headquarters of South Western Railways at Hubli
instead of Bangalore was the subject matter of challenge in Union of India &
Ors. vs. Kannadapara Sanghatanegala Okkuta & Kannadigara & Ors.
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Though the High Court had quashed shifting of Headquarters from Bangalore to
Hubli, this Court stated as follows :-
"it is not the function of the court to decide the location or the site of
the Headquarters, it is the function of the Government."
If benefit of a zonal headquarters in a particular place is more suited than
any other place in zone it would not affect the ultimate efficient functioning of the
railway administration. Thus all contentions of the petitioners stand rejected.
These petitions stand dismissed.
..J.
[ S. RAJENDRA BABU ]
.J.
[ G.P. MATHUR ]
NEW DELHI,
MARCH 13, 2003.
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. 16838 OF 2002
Federation of Railway Officers Association & Ors. Petitioners
Versus
Union of India Respondents
WITH SLP (C) No. 17306/2002
Dear brother,
A draft judgment in the abovementioned matter is being circulated for
favour of your kind consideration.
With warm regards,
[ S. RAJENDRA BABU ]
March 12 , 2003
Hon'ble Mr. Justice G.P.Mathur
REPORTABLE
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J U D G M E N T
In
SPECIAL LEAVE PETITION (CIVIL) NO. 16838 OF 2002
Federation of Railway Officers Association & Ors. Petitioners
Versus
Union of India Respondents
WITH SLP (C) No. 17306/2002
On
Thrusday, March 13, 2003
By
HON'BLE MR. JUSTICE S. RAJENDRA BABU
24
10
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No.490 of 2002 etc.
People's Union for Civil Liberties
(PUCL) and another Petitioners
Vs.
Union of India and another Respondents
With
Writ Petition Nos. 509/2002 & 515/2002
J U D G M E N T
Dharmadhikari J.
I have carefully gone through the well considered separate
opinions of Brothers MB Shah J. and P.V.Reddi JJ. Both the learned
judges have come to a common conclusion that Section 33B inserted
in the Representation of people Act, 1951 by Amendment Ordinance
4 of 2002, which on repeal is succeeded by 3rd Amendment Act of
2002, is liable to be declared invalid being violative of Article
19(1)(a) of the Constitution.
I am in respectful agreement with the above conclusion
reached in common by both the learned brothers. I would, however,
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like to supplement the above conclusion.
The reports of the advisory Commission set up one after the
other by the Government to which a reference has been made by
Brother Shah J., highlight the present political scenario where
money-power and muscle-power have substantially polluted and
perverted the democratic processes in India. To control the ill-effects
of money-power and muscle-power the Commissions recommend
that election system should be overhauled and drastically changed
lest democracy would become a teasing illusion to common citizens
of this country. Not only a half-hearted attempt in the direction of
reform of the election system is to be taken, as has been done by the
present legislation by amending some provisions of the Act here and
there, but a much improved election system is required to be evolved
to make the election process both transparent and accountable so
that influence of tainted money and physical force of criminals do not
make democracy a farce - Citizen's fundamental 'right of information'
should be recognised and fully effectuated. This freedom of a citizen
to participate and choose a candidate at an election is distinct from
exercise of his right as a voter which is to be regulated by statutory
law on the election like the R.P. Act.
Making of law for election reform is undoubtedly a subject
exclusively of legislature. Based on the decision of this Court in the
case of Association for Democratic Reforms (supra) and the
directions made therein to the Election Commission, the
Amendment Act under consideration has made an attempt to fill the
void in law but the void has not been filled fully and does not satisfy
the requirements for exercise of fundamental freedom of citizen to
participate in election as a well informed voter.
Democracy based on 'Free and fair elections' is considered as
basic feature of the Constitution in the case of Keshvanand Bharati
(supra). Lack of adequate legislative will to fill the vacuum in law
for reforming the election process in accordance with the law
declared by this Court in the case of Association for Democratic
Reforms (supra), obligates this Court as an important organ in
constitutional process to intervene.
In my opinion, this Court is obliged by the Constitution to
intervene because the legislative field, even after the passing of the
Ordinance and the Amendment Act, leaves a vacuum. This Court in
the case of Association for Democratic Reforms (supra) has
determined the ambit of fundamental 'right of information' to a voter.
The law, as it stands today after amendment, is deficient in ensuring
'free and fair elections'. This Court has, therefore, found it necessary
to strike down Section 33 B of the Amendment Act so as to revive
the law declared by this Court in the case of Association for
Democratic Reforms (supra).
With these words, I agree with conclusions (A) to (E) in the
opinion of Brother Shah J. and conclusion Nos. (1), (2), (4), (5), (6),
(7) & (9) in the opinion of Brother P.V. Reddi J.
With utmost respect, I am unable to agree with conclusion
Nos. (3) & (8) in the opinion of Brother P.V. Reddy J., as on those
aspects, I have expressed my respectful agreement with Brother
Shah J.
J.
[ D.M. Dharmadhikari ]
New Delhi
March 13, 2003.
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J U D G M E N T
Dharmadhikari J.
I have carefully gone through the well-considered opinion of
Brother MB Shah J. I agree with his conclusion that Section 33B
inserted in Representation of People 1951 by Amendment Ordinance
4 of 2002 followed by 3rd Amendment Act 2002 is liable to be
declared invalid being violative of Article 19(1)(a) of the Constitution.
I, however, consider it necessary to deal with some additional
grounds urged on behalf of the parties after the Amendment
Ordinance became the Act. I would, therefore, supplement the
conclusion of Brother Shah J. on my own additional reasons.
Since Brother Shah J. has covered in detail all legal questions
involved with the assistance of various reports of the Commissions
set up by the Government for introducing election reforms leading to
the promulgation of the Ordinance and then passing of the third
Amendment Act of 2002, I would straightway deal with some
additional grounds urged separately by the counsel for the parties
after the Amendment Ordinance was repealed and substituted by the
Amendment Act.
On behalf of the petitioner it has been submitted that
fundamental right to "freedom of speech and expression" has been
held by this Court in the case of PUCL (supra) [2002(5) SCC 294] to
include within it right of a citizen as a voter to know the relevant
antecedents of the candidate at the election. In the case of
Keshvanand Bharati [1973 (4) SCC 225] "fundamental rights" and
"democratic form of Government" to be constituted through "a free
and fair election," have been held to be basic features or structures
of the Constitution and beyond the amending power of Parliament.
It is for achieving the constitutional principles that elaborate
provisions are required to be made in the election laws for ensuring
free and fair election. The importance of participatory role of the
people in governance is the hallmark of a democratic republic to
which the Constitution is committed by the preamble and the
provisions contained in the Articles of the Constitution.
The petitioners submit that the law declared by this Court in
the case PUCL (supra) is binding on the Legislature and the
Executives under Articles 141 and 144 of the Constitution. The right
of a citizen, to know about the relevant information of a candidate at
an election for his effective participation as a voter in a democratic
process, is a fundamental right duly recognised by this Court which is
distinct from his legal or statutory right under the RP Act to vote or
contest any election. On behalf of petitioners, the following political
thought of Maddison is relied:-
"A popular government, without popular information or the means of
acquiring it, is but a prologue to a farce or a tragedy or perhaps both
and a people who need to be their own governors, must arm
themselves with the power that knowledge gives."
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Counsel for the petitioner submits that people's court being the
real democratic favourite forum, it is logical that this should be
equipped with all facts regarding those it chooses to elect as its
representatives.
Assailing the provisions of Section 33B inserted by Ordinance
and Amendment Act to the RP Act of 1951 the contention advanced
is that competence of the legislature to annul the effect of a
judgment by altering the basis of the interpretation by Court can be
conceded but where the court has held 'right to information' of a
citizen regarding antecedents of a candidate at an election as part of
his fundamental "right of speech and expression" under Article
19(1)(a) of the Constitution, legislature by amending the RP Act of
1951 cannot nullify such fundamental right recognized and declared
by this Court.
On behalf of respondents i.e. Union of India and its authorities
learned Solicitor General made strenuous efforts to support the
provisions of the Amendment Ordinance and Amendment Act. It is
submitted that in the case of PUCL (supra) the Court issued
directions to the Election Commission to suitably make provisions for
declaration of information by a candidate at an election regarding his
criminal antecedents, if any, his qualifications and financial status
because the Court found that in the provisions of the Act and the
Rules, there were no provisions for imparting necessary information
by the candidate to the voter. This legislative vacuum was filled by
the Court in discharge of its constitutional obligation. It is submitted
that firstly by the Ordinance and later by the Amendment Act the so-
called legislative vacuum has been filed by the Parliament. Elections
in future will now be regulated by the law newly enacted and not in
accordance with the directions made by the Court to the Election
Commission at the time when there did not exist any law or provision
on the question of imparting of relevant information by the candidate
to the voter.
On behalf of respondents, it is further submitted that in the
Amendment Act, suitable provisions have been made for disclosure of
criminal antecedents of a candidate. He has also to disclose his
assets, not at the time of election, but only if he gets elected. The
contention advanced is that once the legislature has filled the
vacuum in law identified by the Court and earlier filled by directions
of the Court to the Election Commission, the legislature could by
enacting Section 33B as part of the RP Act 1951, give an over-riding
effect to the amending law over any judgment of the Court or
instructions issued by the Election Commission. It is argued that the
judgment in the case of PUCL (Supra) of this Court itself
contemplated that the directions of the Court requiring candidates to
supply requisite information to the voter at an election were to
operate only till an appropriate legislation was made. Once such
legislation is made by the Parliament, the decision of this Court in the
case of PUCL (Supra) loses its efficacy because Amendment Act has
filled the vacuum or void in the RP Act. The legislative wisdom of
filling the vacuum in a particular manner cannot be a subject matter
of judicial scrutiny when there is no violation of any fundamental
right of the citizen.
Learned Solicitor General alternatively contended that
assuming that a right to get relevant information by the voter from a
candidate at an election is a fundamental right, the extent of
operation of this right is the matter that the legislature alone can
decide. It is submitted that even if this Court concludes that the
extent of information required to be given by the provisions inserted
by the Ordinance followed by the Amendment Act are not adequate,
that by itself would constitute no ground to strike down the
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impugned Ordinance and the Act or Section 33B inserted to the
Representation of People Act, 1951. The legislature has filled the
void in law in the manner thought most appropriate and practical. It
is asserted that this court should not insist that the legislative void
has to be filled only in the manner indicated in the directions of this
Court in the case of PUCL (supra).
Another alternative argument advanced on behalf of the Union
of India is that this Court by interpretation of Article 19(1)(a) of the
Constitution, cannot elevate a statutory right to vote of a voter under
the RP Act of 1951 to a fundamental right when such a right is
nowhere recognized by the Constitution. The under-mentioned
decisions of this Court have been relied to support the submission
that right to vote and right to contest at an election have always
been recognized to be special law or statutory right and not a
common law or constitutional right.
Ajab Singh vs. State of UP [2000(3) SCC 521 at 525]; Jyoti
Basu vs. Debi Ghosal [1982 (1) SCC 691 paras 8,9 at page 696];
Jumuna Prasad Mukhariya vs. Lachhi Ram [1955 (1) SCR 608
at 609-610]; NP Ponnuswami vs. Returning Officer [1952 SCR 218 at
220, 236].
Learned Solicitor General emphatically submitted that in the
case of PUCL(supra), equating the right of a voter to exercise his
right of franchise to a fundamental right of speech and expression, is
clearly in contradiction to the various decisions of equal and larger
benches of this court where such a right of voter is only recognised
as a statutory right. It is submitted in view of a clear conflict of
opinions between three-judges bench decision of this Court in PUCL
(supra) and benches consisting of equal strength of judges or larger
benches in the case cited and noted above, it is necessary for this
Court to refer the matter to a Constitution Bench on this very
important and vital question of the nature of right of a voter in the
ambit of a fundamental right under Article 19(1)(a) of the
Constitution.
Elaborating his argument to question the correctness of the
decision of this Court in the case of PUCL (supra) learned Solicitor
General argued that only necessary information regarding a
candidate can be insisted upon which would not affect the candidate's
"right to privacy." It is also submitted that there are dangers
inherent in enlarging "right to information" as being part of the right
of "freedom of speech and expression."
It is pointed out that if "right to information" regarding the
candidate is fundamental right under Article 19(1)(a), the only
restriction that can be put on such right would be those which are
mentioned in clause (2) of Article 19 such as in the interest of
security of the State, friendly relations with foreign countries, public
order, decency or morality. Placing interpretation on the contents of
Article 19(1)(a) with clause (2) thereunder, it is submitted that right
to information of a voter to the candidate is not conceived by the
Constitution as a fundamental right. It is submitted that a candidate
cannot be asked to disclose such information about him which is not
required by the provisions of RP Act and which does not disqualify
him from contesting the election. The educational qualifications are
not required for a voter or candidate under the Constitution and the
RP Act. The insistence, therefore, on the candidate to supply his
educational bio-data is wholly irrelevant. Similarly, he cannot be
asked to disclose his assets or financial status before he is elected at
an election as such imparting of information affects his "right to
privacy" and is likely to expose him to dangers from unknown
quarters because of the disclosure of his wealth and means. It is
questioned, "why should a candidate be asked to supply information
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of assets or wealth of his wife and dependants?" With the above
submissions, the prayer made is that the question raised by the
petitioners be referred for decision by a Constitution Bench in
accordance with Article 145(3) of the Constitution.
The above-mentioned contentions advanced by the parties,
which have been dealt with and answered by Brother Shah J. and
with which I am in complete agreement, are not required to be dealt
with by me separately. I would, however, like to add some
additional reasons for our agreed conclusion.
. The subject of reform of election system is no doubt
exclusively of legislature but the question is: will the judiciary remain
a silent spectator to see the possible failure of democratic process?
Where the legislature has failed to show the required legislative will
to undertake essential legislative reforms as indicated by this court in
the case of PUCL (supra), unfilled legislative void has to be filled by
judiciary as part of its constitutional obligation and duty. The
legislative void has been filed no doubt, only partially by the
Amendment Act. The Constitution envisages and expects from
independent judiciary a role of a "sentinel on the quivi" or in other
words a "watchdog." The judiciary has to oversee the functions of
the Legislature and Executive to ensure that constitutional principles
are strictly adhered to and the laws are so framed and adequately
implemented to uphold the basic structure of the Constitution. 'Free
and fair elections' for a Parliamentary democracy are already
identified to be the basic features of the Constitution. The impugned
provisions of the Amendment Ordinance and Act show want of
adequate legislative will in improving the election system on the lines
suggested and in accordance with the law declared by this Court in
the case of PUCL (supra). The judiciary is duty bound by
constitution, therefore, to step in to fill the unfilled void in election
law.
There can be no dispute on the legal proposition advanced on
behalf of Union of India that "right to elect and get elected" for
formation of a democratic Government is not recognised in the
Constitution as fundamental right. In a series of decisions relied and
dicussed by Brother Shah J. right to vote and contest at an election is
recognised only as a legal right based on election law. But as has
been held in the unanimous opinion of this Court in the case of PUCL
(supra), 'a voter while voting or contesting an election does not lose
his fundamental right as a citizen.' The formation of a real
democratic government through 'free and fair election' is the basic
structure of the Constitution. The right of a citizen to participate
effectively in an election can be exercised only if he is able to obtain
relevant information about a candidate in whose favour he may
choose to vote or not to vote. This 'right of information' of a citizen
in a participatory democratic process is distinct from his statutory
right as a 'voter' given to him in election law.
In my opinion this Court is obliged by the Constitution to
intervene as the legislative field still leave a vacuum. On an issue of
fundamental right, this Court would be guilty of failing in its duty if
the void in law is allowed to be left unfilled to the detriment of rights
of citizen. The law as it stands today after amendment is deficient in
ensuring 'free and fair election.' With these additional reasons, I
agree with the conclusion of Brother Shah J. that the provision of
section 33B introduced to the RP Act 1951 by the Amendment
Ordinance followed by the Amendment Act, is required to be struck
down as violative of the Constitution.
The result would be that on the requirements regarding
information to be imparted by the candidate to the voter at the
election, the directions of this Court made to the Election Commission
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in the case of PUCL (supra) in so far as they are not covered by the
Representation of Peoples Act 1951, as amended shall be followed
as supplemental to the provisions of the aforesaid Act.and be read as
supplemental to the provisions of RP Act
.J
[ D.M. Dharmadhikari ]
New Delhi
February , 2003.
1
17
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 490 OF 2002
People's Union for Civil
Liberties (PUCL) & another .. Petitioners
Versus
Union of India and another .. Respondents
WITH
WRIT PETITION (CIVIL) NO. 509 OF 2002
Lok Satta and others .. Petitioners
Versus
Union of India .. Respondent
AND
WRIT PETITION (CIVIL) No. 515 of 2002
Association For Democratic Reforms .. Petitioner
Versus
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Union of India and another .. Respondents
J U D G M E N T
Shah, J.
These writ petitions under Article 32 of the Constitution of
India have been filed challenging the validity of the Representation of
the People (Amendment) Ordinance, 2002 (No.4 of 2002)
("Ordinance" for short) promulgated by the President of India on 24th
August, 2002.
There was an era when a powerful or a rich or a strong or a
dacoit aged more than 60 years married a beautiful young girl despite
her resistance. Except to weep, she had no choice of selecting her
mate. To a large extent, such situation does not prevail today. Now,
young persons are selecting mates of their choice after verifying full
details thereof. Should we not have such a situation in selecting a
candidate contesting elections? In a vibrant democracy is it not
required that a little voter should know bio-data of his/her would be
Rulers, Law-makers or Destiny-maker of the Nation?
Is there any necessity of keeping in dark the voters that their
candidate was involved in criminal cases of murder, dacoity or rape
Or has acquired the wealth by unjustified means? May be that he is
acquitted because Investigating Officer failed to unearth the truth or
because the witnesses turned hostile. In some cases, apprehending
danger to their life, witnesses fail to reveal what was seen by them.
Is there any necessity of permitting candidates or his supporters
to use unaccounted money during elections? If assets are declared,
would it not amount to having some control on unaccounted election
expenditure?
It is equally true that right step in that direction is taken by
amending the Representation of the People Act, 1951 (hereinafter
referred to as 'the Act') on the basis of judgment rendered by this
Court in Union of India v. Association for Democratic Reforms
[(2002) 5 SCC 294]. Still however, question to be decided is
whether it is in accordance with what has been declared in the said
judgment?
After concluding hearing of the arguments on 23rd October,
2002, the matter was reserved for pronouncement of judgment. Before
the judgment could be pronounced, the Ordinance was repealed and
on 28th December 2002, the Representation of the People (3rd
Amendment) Act, 2002 ("Amended Act" for short) was notified to
come into force with retrospective effect. Thereafter, an amendment
application was moved before us challenging the validity of Section
33B of the Amendment Act which was granted because there is no
change in the cause of action nor in the wording of Section 33B of the
Amended Act, validity of which is under challenge. At the request of
learned counsel for the respondent-Union of India, time to file
additional counter was granted and the matter was further heard on
31st January, 2003.
It is apparent that there is no change in the wording (even full
stop or coma) of Sections 33A and 33B of the Ordinance and Sections
33A and 33B of the Amended Act. The said Sections read as under
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"33A. Right to information. (1) A candidate shall,
apart from any information, which he is required to
furnish, under this Act or the rules made thereunder, in
his nomination paper delivered under sub-section (1) of
section 33, also furnish the information as to whether
(i) he is accused of any offence punishable with
imprisonment for two years or more in a
pending case in which a charge has been
framed by the court of competent
jurisdiction;
(ii) he has been convicted of an offence other
than any offence referred to in sub-section
(1) or sub-section (2), or covered in sub-
section (3), of section 8 and sentenced to
imprisonment for one year or more.
(2) The candidate or his proposer, as the case may be,
shall, at the time of delivering to the returning officer the
nomination paper under sub-section (1) of section 33,
also deliver to him an affidavit sworn by the candidate in
a prescribed form verifying the information specified in
sub-section (1).
(3) The returning officer shall, as soon as may be after
the furnishing of information to him under sub-section
(1), display the aforesaid information by affixing a copy
of the affidavit, delivered under sub-section (2) at a
conspicuous place at his office for the information of the
electors relating to a constituency for which the
nomination paper is delivered."
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."
For the directions, which were issued in Association for
Democratic Reforms (supra), it is contended that some of them are
incorporated by the statutory provisions but with regard to remaining
directions it has been provided therein that 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 the Act or the
Rules made thereunder, despite the directions issued by this Court.
Therefore, the aforesaid Section 33B is under challenge.
At the outset, we would state that such exercise of power by the
Legislature giving similar directions was undertaken in the past and
this Court in unequivocal words declared that the Legislature in this
country has no power to ask the instrumentalities of the State to
disobey or disregard the decisions given by the Courts. For this, we
would quote some observations on the settled legal position having
direct bearing on the question involved in these matters:
A- Dealing with the validity of Bombay Provincial Municipal
Corporation (Gujarat Amendment and Validating Provisions)
Ordinance 1969, this Court in The Municipal Corporation of
the City of Ahmedabad and another v. The New Shrock Spg.
And Wvg. Co. Ltd. [(1970) 2 SCC 280] observed thus:-
"7. This is a strange provision. Prima facie that
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provision appears to command the Corporation to
refuse to refund the amount illegally collected
despite the orders of this Court and the High Court.
The State of Gujarat was not well advised in
introducing this provision. That provision
attempts to make a direct inroad into the judicial
powers of the State. The Legislatures under our
Constitution have within the prescribed limits,
powers to make laws prospectively as well as
retrospectively. By exercise of those powers, the
Legislature can remove the basis of a decision
rendered by a competent court thereby rendering
that decision ineffective. But no Legislature in
this country has power to ask the
instrumentalities of the State to disobey or
disregard the decisions given by courts"
Further, Khanna, J. In Smt. Indira Nehru Gandhi v.
Shri Raj Narain [1975 Supp. SCC 1] succinctly and without
any ambiguity observed thus:
"190. A declaration that an order made by a
court of law is void is normally part of the judicial
function and is not a legislative function.
Although there is in the Constitution of India no
rigid separation of powers, by and large the
spheres of judicial function and legislative
function have been demarcated and it is not
permissible for the Legislature to encroach upon
the judicial sphere. It has accordingly been held
that a Legislature while it is entitled to change
with retrospective effect the law which formed the
basis of the judicial decision, it is not permissible
to the Legislature to declare the judgment of the
court to be void or not binding.
It is also settled law that the Legislature may remove the
defect which is the cause for invalidating the law by the Court
by appropriate legislation if it has power over the subject matter
and competence to do so under the Constitution.
B. Secondly, we would reiterate that the primary duty of the
Judiciary is to uphold the Constitution and the laws without fear
or favour, without being biased by political ideology or
economic theory. Interpretation should be in consonance with
the Constitutional provisions, which envisage a republic
democracy. Survival of democracy depends upon free and fair
election. It is true that the elections are fought by political
parties, yet election would be a farce if the voters are unaware
of antecedents of candidates contesting elections. Their
decision to vote either in favour of 'A' or 'B' candidate would
be without any basis. Such election would be neither free nor
fair.
For this purpose, we would refer to the observations
made by Khanna, J. in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and another [(1973) 4 SCC
225], which read thus
"That all constitutional interpretations have
political consequences should not obliterate the
fact that the decision has to be arrived at in the
calm and dispassionate atmosphere of the court
room, that judges in order to give legitimacy to
their decision have to keep aloof from the din and
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controversy of politics and that the fluctuating
fortunes of rival political parties can have for them
only academic interest. Their primary duty is to
uphold the Constitution and the laws without fear
or favour and in doing so, they cannot allow any
political ideology or economic theory, which may
have caught their fancy, to colour the decision."
C. It is also equally settled law that the Court should not shirk its
duty from performing its function merely because it has
political thicket. Following observations (of Bhagwati, J., as
he then was) made in State of Rajasthan v. Union of India
[(1977) 3 SCC 592] were referred to and relied upon by this
Court in B.R. Kapur v. State of Tamil Nadu [(2001) 7 SCC
231]:
"53. But merely because the question has a
political complexion, that by itself is no ground
why the court should shrink from performing its
duty under the Constitution if it raises an issue of
constitutional determination. Every constitutional
question concerns the allocation and exercise of
governmental power and no constitutional question
can, therefore, fail to be political. So long as a
question arises whether an authority under the
Constitution has acted within the limits of its
power or exceeded it, it can certainly be decided
by the court. Indeed it would be its constitutional
obligation to do so. It is necessary to assert the
clearest possible terms, particularly in the context
of recent history, that the Constitution is suprema
lex, the paramount law of the land, and there is no
department or branch of Government above or
beyond it."
SUBMISSIONS:
It is contended by learned Senior Counsel Mr. Rajinder Sachar
and Mr. P.P. Rao for the petitioners that the Section 33B is, on the
face of it, arbitrary and unjustifiable. It is their contention that the
aforesaid section is on the face of it void as a law cannot be passed
which violates/abridges the fundamental rights of the citizens/voters,
declared and recognised by this Court. It is submitted that without
exercise of the right to know the relevant antecedents of the candidate,
it will not be possible to have free and fair elections. Therefore, the
impugned Section violates the very basic features of the Constitution,
namely, republic democracy. For having free and fair elections,
anywhere in the territory of this country, it is necessary to give effect
to the voters' fundamental right as declared by this Court in the above
judgment.
It has been contended that, in our country, at present about 700
legislators and 25 to 30 Members of Parliament are having criminal
record. It is also contended that almost all political parties declare that
persons having criminal record should not be given tickets, yet for one
or other reason, political parties under some compulsion give tickets
to some persons having criminal records and some persons having no
criminal records get support from criminals. It is contended by
learned senior counsel Mr. Sachar that by issuing the Ordinance, the
Government has arrogated to itself the power to decide unilaterally for
nullifying the decision rendered by this Court without considering
whether it can pass legislation which abridges fundamental right
guaranteed under Article 19(1)(a). It is his submission that the
Ordinance is issued and thereafter the Act is amended because it
appears that the Government is interested in having uninformed
ignorant voters.
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Contra, learned Solicitor General Mr. Kirit N. Raval and learner
senior counsel Mr. Arun Jaitley appearing on behalf of the intervenor,
with vehemence, submitted that the aforesaid Ordinance/Amended
Act is in consonance with the judgment rendered by this Court and the
vacuum pointed out by the said judgment is filled in by the enactment.
It is also contended by learned senior counsel Mr. Jaitley that voters'
right to know the antecedents of the candidate is not part of the
fundamental rights, but it is a derivative fundamental right on the
basis of interpretation of Article 19(1)(a) given by this Court. It is
submitted that the Ordinance/Amended Act is in public interest and,
therefore, it cannot be held to be illegal or void. In support of their
contentions, learned counsel for the parties have referred to various
decisions rendered by this Court.
WHETHER ORDINANCE/AMENDED ACT COVERS THE DIRECTIONS
ISSUED BY THIS COURT:
Before dealing with the rival submissions, we would refer to the
following directions (para 48) given by this Court in Association for
Democratic Rights case (supra):
"The Election Commission is directed to call for
information on affidavit by issuing necessary order in
exercise of its power under Article 324 of the
Constitution of India from each candidate seeking
election to Parliament or a State Legislature as a
necessary part of his nomination paper, furnishing
therein, information on the following aspects in relation
to his/her candidature:
(1) Whether the candidate is convicted/acquitted/
discharged of any criminal offence in the pastif
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 over dues of any public financial institution or
Government dues.
(5) The educational qualifications of the candidate."
The learned counsel for the respondent submitted that the
directions issued by this Court are, to a large extent, implemented by
the aforesaid Amended Act. It is true that some part of the directions
issued by this Court are implemented. Comparative Chart on the basis
of Judgment and Ordinance would make the position clear:
Subject Discussion in Provisions Under Impugned
Judgment dt.2.5.2002 Ordinance/Amended Act
Past criminal Para 48(1) S.33A(1)(ii)
Record. All past convictions/acquittals/ Conviction of any offence (except
discharges, whether punished S.8 offence) and sentenced t
o
with imprisonment or fine. imprisonment of one year or
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more.
No such declaration in case
of
acquittals or discharge.
(S.8 offences to be disclose
d in
nomination paper itself)
Pending criminal Para 48(2) S.33A(1)(i)
cases. Prior to six months of filing of Any case in which the candid
ate has
nomination, whether the been accused of any criminal offence
candidate has been accused of punishable with imprisonment of
any criminal offence punishable two years or more, and charge
with imprisonment of two years framed.
or more, and charge framed or
cognizance taken.
Assets and Para 48(3) S. 75A
liabilities Assets of candidate No such decl
aration by a candidate
(contesting the elections) who is contesting
election. After
spouse and dependants. election, elected candidate is
required to furnish information
relating to him as well as his
spouse and dependent childre
n's
assets to the Speaker of the House
of People.
Para 48(4)
Liabilities, particularly to No provis
ion is made for the
Government And public candidate contesting election.
financial institutions.
However, after election, Section
75A(1)ii) & (iii) provides for
elected candidate.
Educational Para 48(5) No provision.
Qualifications. To be declared.
Breach of No direction regarding S.125A
Provisions consequences of Creates an offence punishabl
e
non-compliance. by imprisonment for six months
or fine for failure to furnish affidavit
in accordance with S.33A, as well as
for falsity or concealment in affidavit
or nomination paper.
S.75A(5)
Wilful contravention of Rules regarding
asset disclosure may be treated as
breach of privilege of the House.
.
From the aforesaid chart, it is clear that a candidate is not
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required to disclose (a) the cases in which he is acquitted or
discharged of criminal offence(s); (b) his assets and liabilities; and
(c) his educational qualification. With regard to assets, it is sought to
be contended that under the Act the candidate would be required to
disclose the same to the Speaker after being elected. It is also
contended that once the person is acquitted or discharged of any
criminal offence, there is no necessity of disclosing the same to the
voters.
FINALITY OF THE JUDGMENT:
Firstly, it is to be made clear that the judgment rendered by this
Court in Association for Democratic Reforms (Supra) has attained
finality. The voters' right to know the antecedents of the candidates is
based on interpretation of Article 19(1)(a) which provides that all
citizens of this country would have fundamental right to "freedom of
speech and expression" and this phrase is construed to include
fundamental right to know relevant antecedents of the candidate
contesting the elections.
Further, even though we are not required to justify the
directions issued in the aforesaid judgment, to make it abundantly
clear that it is not ipse dixit and is based on sound foundation, it can
be stated thus
Democratic Republic is part of the basic structure
of the Constitution.
For this, free and fair periodical elections based on
adult franchise are must.
For having unpolluted healthy democracy,
citizens-voters should be well-informed.
So, the foundation of a healthy democracy is to have well-
informed citizens-voters. The reason to have right of information
with regard to the antecedents of the candidate is that voter can judge
and decide in whose favour he should cast his vote. It is voter's
discretion whether to vote in favour of an illiterate or literate
candidate. It is his choice whether to elect a candidate against whom
criminal cases for serious or non-serious charges were filed but is
acquitted or discharged. He is to consider whether his candidate may
or may not have sufficient assets so that he may not be tempted to
indulge in unjustified means for accumulating wealth. For assets or
liability, the voter may exercise his discretion in favour of a candidate
whose liability is minimum and/or there are no over-dues of public
financial institution or government dues. From this information, it
would be, to some extent, easy to verify whether unaccounted money
is utilized for contesting election and whether a candidate is
contesting election for getting rich or after being elected to what
extent he became richer. Exposure to public scrutiny is one of the
known means for getting clean and less polluted persons to govern the
country. A little man a citizen a voter is the master of his vote.
He must have necessary information so that he can intelligently decide
in favour of a candidate who satisfies his criterion of being elected as
M.P. or M.L.A. On occasions, it is stated that we are not having such
intelligent voters. This is no excuse. This would be belittling a little
citizen/voter. He himself may be illiterate but still he would have guts
to decide in whose favour he should cast his vote. In any case, for
having free and fair election and not to convert democracy into a
mobocracy and mockery or a farce, information to voters is the
necessity.
Further, in context of Section 8 of the Act, the Law
Commission in its Report submitted in 1999 observed as under:
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"5.1 The Law Commission had proposed that in respect
of offences provided in sub-section (1) (except the
offence mentioned in clause (b) of sub-section (1),
a mere framing of charge should serve as a
disqualification. This provision was sought to be
made in addition to existing provision which
provides for disqualification arising on account of
conviction. The reason for this proposal was that
most of the offences mentioned in sub-section (1)
are either election offences or serious offences
affecting the society and that the persons
committing these offences are mostly persons
having political clout and influence. Very often
these elements are supported by unsocial persons
or group of persons, with the result that no
independent witness is prepared to come forward
to depose against such persons. In such a
situation, it is proving extremely difficult to obtain
conviction of these persons. It was suggested that
inasmuch as charges were framed by a court on
the basis of the material placed before it by the
prosecution including the material disclosed by
the charge-sheet, providing for disqualification
on the ground of framing of the charge-sheet
would be neither unjust nor unreasonable or
arbitrary."
The Law Commission also observed: -
6.3.1. There has been mounting corruption in all walks of
public life. People are generally lured to enter
politics or contest elections for getting rich
overnight. Before allowing people to enter public
life the public has a right to know the antecedents
of such persons. The existing conditions in which
people can freely enter the political arena without
demur, especially without the electorate knowing
about any details of the assets possessed by the
candidate are far from satisfactory. It is essential
by law to provide that a candidate seeking
election shall furnish the details of all his assets
(movable/immovable) possessed by him/her, wife-
husband, dependant relations, duly supported by
an affidavit.
6.3.2. Further, in view of recommendations of the Law
Commission for debarring a candidate from
contesting an election if charges have been framed
against him by a Court in respect of offences
mentioned in the proposed section 8-B of the Act,
it is also necessary for a candidate seeking to
contest election to furnish details regarding
criminal case, if any, pending against him,
including a copy of the FIR/complaint and any
order made by the concerned court.
6.3.3. In order to achieve the aforesaid objectives, it is
essential to insert a new section 4-A after the
existing section 4 of the Representation of the
People Act, 1951, as follows
"4-A. Qualification for membership of the
House of the People, the Council of States,
Legislature Assembly of a State or
Legislative Council
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A person shall not be qualified to file his
nomination for contesting any election for a seat in
the House of the People, the Council of States
Legislature Assembly or Legislative Council of a
State unless he or she files
(a) a declaration of all his assets
(movable/immovable) possessed by him/her,
his/her spouse and dependent relations, duly
supported by an affidavit, and
(b) a declaration as to whether any charge in
respect of any offence referred to in section
8B has been framed against him by any
Criminal Court."
It is to be stated that similar views are expressed in the report
submitted in March 2002 by the National Commission to Review the
Working of the Constitution appointed by the Union Government
for reviewing the working of the Constitution. Relevant
recommendations are as under:
"Successes and Failures
4.4 During the last half-a-century, there have been
thirteen general elections to Lok Sabha and a much large
number to various State Legislative Assembles. We can
take legitimate pride in that these have been successful
and generally acknowledged to be free and fair. But, the
experience has also brought to fore many distortions,
some very serious, generating a deep concern in many
quarters. There are constant reference to the unhealthy
role of money power, muscle power and mafia power
and to criminalisation, corruption, communalism and
casteism.
4.12 Criminalisation
4.12.2 The Commission recommends that the
Representation of the People Act be amended to provide
that any person charged with any offence punishable
with imprisonment for a maximum term of five years or
more, should be disqualified for being chosen as, or for
being, a member of Parliament or Legislature of a State
on the expiry of a period of one year from the date the
charges were framed against him by the Court in that
offence and unless cleared during that one year period,
he shall continue to remain so disqualified till the
conclusion of the trial for that offence. In case a person is
convicted of any offence by a court of law and sentenced
to imprisonment for six months or more the bar should
apply during the period under which the convicted person
is undergoing the sentence and for a further period of six
years after the completion of the period of the sentence.
If any candidate violates this provision, he should be
disqualified. Also, if a party puts up such a candidate
with knowledge of his antecedents, it should be
derecognised and deregistered.
4.12.3. Any person convicted for any heinous crime
like murder, rape, smuggling, dacoity etc. should be
permanently debarred from contesting for any political
office.
4.12.8 The Commission feels that the proposed
provision laying down that a person charged with an
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offence punishable with imprisonment which may extend
to five years or more should be disqualified from
contesting elections after the expiry of a period of one
year from the date the charges were framed in a Court of
law should equally be applicable to sitting members of
Parliament and State Legislatures as to any other such
person.
4.14 High Cost of Elections and Abuse of Money
Power.
4.14.1 One of the most critical problems in the
matter of electoral reforms is the hard reality that for
contesting an election one needs large amounts of money.
The limits of expenditure prescribed are meaningless and
almost never adhered to. As a result, it becomes difficult
for the good and the honest to enter legislatures. It also
creates a high degree of compulsion for corruption in
the political arena. This has progressively polluted the
entire system. Corruption, because it erodes performance,
becomes one of the leading reasons for non-performance
and compromised governance in the country. The
sources of some of the election funds are believed to be
unaccounted criminal money in return for protection,
unaccounted funds from business groups who expect a
high return on this investment, kickbacks or
commissions on contracts etc. No matter how we look
at it, citizens are directly affected because apart from
compromised governance, the huge money spent on
elections pushes up the cost of everything in the country.
It also leads to unbridled corruption and the
consequences of wide spread corruption are even more
serious than many imagine. Electoral compulsions for
funds become the foundation of the whole super structure
of corruption.
4.14.3 Transparency in the context of election
means both the sources of finance as well as their
utilization as are listed out in an audited statement. If the
candidates are required to list the sources of their income,
this can be checked back by the income tax authorities.
The Commission recommends that the political parties
as well as individual candidates be made subject to a
proper statutory audit of the amounts they spend.
These accounts should be monitored through a system
of checking and cross-checking through the income-tax
returns filed by the candidates, parties and their well-
wishers. At the end of the election each candidate
should submit an audited statement of expenses under
specific heads. The EC should devise specific formats
for filing such statements so that fudging of accounts
becomes difficult. Also, the audit should not only be
mandatory but it should be enforced by the Election
Commission.
Any violation or misreporting should be dealt with
strongly.
4.14.4 The Commission recommends that every
candidate at the time of election must declare his assets
and liabilities along with those of his close relatives.
Every holder of a political position must declare his
assets and liabilities along with those of his close
relations annually. Law should define the term 'close
relatives'.
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4.14.6 All candidates should be required under
law to declare their assets and liabilities by an affidavit
and the details so given by them should be made public.
Further, as a follow up action, the particulars of the assets
and liabilities so given should be audited by a special
authority created specifically under law for the purpose.
Again, the legislators should be required under law for
the purpose. Again, the legislators should be required
under law to submit their returns about their liabilities
every year and a final statement in this regard at the
end of their term of office.
Candidates owning Government Dues
4.23 It is recommended that all candidates should be
required to clear government dues before their
candidatures are accepted. This pertains to payment of
taxes and bills and unauthorised occupation of
accommodation and availing of telephones and other
government facilities to which they are no longer
entitled. The fact that matters regarding Government
dues in respect of the candidate are pending before a
Court of Law should be no excuse.
Mr. P.P. Rao, learned senior counsel has drawn our attention to
the 'Ethics Manual for Members, Officers and Employees of the U.S.
House of Representatives', which inter alia provides as under
"Financial interests and investments of Members and
employees, as well as those of candidates for the House
of Representatives, may present conflicts of interest
with official duties. Members and employees need not,
however, divest themselves of assets upon assuming their
positions, nor must Members disqualify themselves from
voting on issues that generally affect their personal
financial interests. Instead, public financial disclosure
provides a means of monitoring and deterring conflicts.
All Members, officers, and employees are prohibited
from improperly using their official positions for
personal gain. Members, officers, candidates, and certain
employees must file annual Financial Disclosure
Statements, summarizing financial information
concerning themselves, their spouses, and dependent
children. Such statements must indicate outside
compensation, holdings and business transactions,
generally for the calendar year preceding the filing date.
Who must File
The following individuals must file Financial Disclosure
Statements: -
? Members of the House of Representatives;
? Candidates for the House of Representatives;
When to File
Candidates who raise or spend more than $5,000
for their campaigns must file within 30 days of doing so,
or by May 15, whichever is later, but in any event at
least 30 days prior to the elections in which they run.
Termination reports must be filed within 30 days
of leaving government employment by Members,
officers, and employees who file Financial Disclosure
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Statements.
POLICIES UNDERLYING DISCLOSURE
Members, officers, and certain employees must
annually disclose personal financial interests, including
investments, income, and liabilities. Financial disclosure
provisions were enacted to monitor and to deter possible
conflicts of interest due to outside financial holdings.
Proposals for divestiture of potentially conflicting assets
and mandatory disqualification of Members from voting
rejected as impractical or unreasonable. Such
disqualification could result in the disenfranchisement
of a Member's entire constituency on particular issues.
A Member may often have a community of interests with
his constituency, may arguably have been elected
because of and to serve these common interests, and thus
would be ineffective in representing the real interests of
his constituents if he were disqualified from voting on
issues touching those matters of mutual concern. In rare
instances, the House Rule on abstaining from voting may
apply where a direct personal interest in a matter exists.
At the other extreme, a conflict of interest becomes
corruption when an official uses his position of influence
to enhance his personal financial interests. Between these
extremes are those ambiguous circumstances which may
create a real or potential conflict of interest. The problem
is identifying those instances in which an official allows
his personal economic interests to impair his
independence of judgment in the conduct of his public
duties.
The House has required public financial
disclosure by rule since 1968 and by statute since 1978.
SPECIFIC DISCLOSURE REQUIREMENTS
The Ethics in Government Act of 1978 mandated
annual financial disclosure by all senior Federal
personnel, including all Members and some employees of
the House. The Ethics Reform Act of 1989 totally
revamped these provisions and condensed what had been
different requirements for each branch into one uniform
title covering the entire Federal Government. Financial
Disclosure Statements must indicate outside
compensation, holdings, and business transactions,
generally for the calendar year preceding the filing date.
In all instances, filers may disclose addition information
or explanation at their discretion."
At this stage, it would be worth-while to note some
observations made by the Committee on State Funding of Elections
headed by Shri Indrajit Gupta as Chairman and others, which
submitted its report in 1998. In the concluding portion, it has
mentioned as under
"CONCLUSION:
1. Before concluding, the Committee cannot help
expressing its considered view that its recommendations
being limited in nature and confined to only one of the
aspects of the electoral reforms may bring about only
some cosmetic changes in the electoral sphere. What is
needed, however, is an immediate overhauling of the
electoral process whereby elections are freed from evil
influence of all vitiating factors, particularly,
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criminalisation of politics. It goes without saying that
money power and muscle power go together to vitiate
the electoral process and it is their combined effect
which is sullying the purity of electoral contests and
effecting free and fair elections. Meaningful electoral
reforms in other spheres of electoral activity are also
urgently needed if the present recommendations of the
Committee are to serve the intended useful purpose."
From the aforesaid reports of the Law Commission, National
Commission to Review the Working of the Constitution, Conclusion
drawn in the report of Shri Indrajit Gupta and Ethics Manual
applicable in an advance democratic country, it is apparent that for
saving the democracy from the evil influence of criminalisation of
politics, for saving the election from muscle and money power, for
having true democracy and for controlling corruption in politics, the
candidate contesting the election should be asked to disclose his
antecedents including assets and liabilities. Thereafter, it is for the
voters to decide in whose favour he should cast his vote.
Further, we would state that this Court has construed 'freedom
of speech and expression' in various decisions and on basis of tests
laid therein, directions were issued. In short, this aspect is discussed
in paragraphs 31, 32 and 33 of our earlier judgment which read as
under:
"31. In State of Uttar Pradesh v. Raj Narain and
Others [(1975) 4 SCC 428], the Constitution Bench
considered a questionwhether privilege can be claimed
by the Government of Uttar Pradesh under Section 123 of
the Evidence Act in respect of what has been described
for the sake of brevity to be the Blue Book summoned
from the Government of Uttar Pradesh and certain
documents summoned from the Superintendent of Police,
Rae Bareli, Uttar Pradesh? The Court observed that "the
right to know 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". The Court pertinently observed as
under: -
"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. They are
entitled to know the particulars of every
public transaction in all its bearing."
32. In Indian Express Newspapers (Bombay)
Private Ltd. and Others etc. v. Union of India and others
[(1985) 1 SCC 641], this Court dealt with the validity of
customs duty on the newsprint in context of Article
19(1)(a). The Court observed (in para 32) thus:
"The purpose of the press is to
advance the public interest by publishing
facts and opinions without which a
democratic country cannot make
responsible judgments."
33. The Court further referred (in para 35) to the
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following observations made by this Court in Romesh
Thappar v. State of Madras (1950 SCR 594): -
"(The freedom) lay at the
foundation of all democratic organisations,
for without free political discussion no
public education, so essential for the proper
functioning of the processes of popular
government, is possible. A freedom of such
amplitude might involve risks of abuse
(But) "it is better to leave a few of its
noxious branches to their luxuriant growth,
than, by pruning them away, to injure the
vigour of those yielding the proper fruits".
Again in paragraph 68, the Court observed: -
".The public interest in freedom of discussion (of
which the freedom of the press is one aspect) stems from
the requirement that members of a democratic society
should be sufficiently informed that they may influence
intelligently the decisions which may affect themselves
(Per Lord Simon of Glaisdale in Attorney-General v.
Times Newspapers Ltd. (1973) 3 All ER 54). Freedom
of expression, as learned writers have observed, has four
broad social purposes to serve: (i) it helps an individual
to attain self-fulfillment, (ii) it assists in the discovery of
truth, (iii) it strengthens the capacity of an individual in
participating in decision-making and (iv) it provides a
mechanism by which it would be possible to establish a
reasonable balance between stability and social change.
All members of society should be able to form their own
beliefs and communicate them freely to others. In sum,
the fundamental principle involved here is the people's
right to know. Freedom of speech and expression
should, therefore, receive a generous support from all
those who believe in the participation of people in the
administration."
Even with regard to telecasting of events such as cricket,
football and hockey etc., this Court in Secretary, Ministry of
Information and Broadcasting, Govt. of India v. Cricket Association
of Bengal [(1995) 2 SCC 161] held that "the right to freedom of
speech and expression also includes right to educate, to inform and to
entertain and also the right to be educated, informed and entertained."
The Court further held as under:-
"82. True democracy cannot exist unless all citizens
have a right to participate in the affairs of the polity of
the country. The right to participate in the affairs of the
country is meaningless unless the citizens are well
informed on all sides of the issues, in respect of which
they are called upon to express their views. One-sided
information, disinformation, misinformation and non-
information all equally create an uninformed citizenry
which makes democracy a farce when medium of
information is monopolised either by a partisan central
authority or by private individuals or oligarchic
organisations. This is particularly so in a country like
ours where about 65 per cent of the population is
illiterate and hardly 1 per cent of the population has an
access to the print media which is not subject to pre-
censorship.."
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The aforesaid passage leaves no doubt that right to participate
by casting vote at the time of election would be meaningless unless
the voters are well informed about all sides of the issues, in respect of
which they are called upon to express their views by casting their
votes. Disinformation, misinformation, non-information all equally
create an uninformed citizenry which would finally make democracy
a mobocracy and farce. On this aspect, no further discussion is
required. However, we would narrate some observations made by
Bhagwati, J. (as he then was) in S.P. Gupta v. Union of India [1981
Supp. SCC 87], while dealing with the contention of right to secrecy
that "there can be little doubt that exposure to public gaze and
scrutiny is one of the surest means of achieving a clean and healthy
administration". Further, it has been explicitly and lucidly held
thus:
"64. Now it is obvious from the Constitution that we
have adopted a democratic form of Government. Where
a society has chosen to accept democracy as its credal
faith, it is elementary that the citizens ought to know
what their government is doing. The citizens have a
right to decide by whom and by what rules they shall be
governed and they are entitled to call on those who
govern on their behalf to account for their conduct. 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 if people know
how government is functioning that they can fulfil the
role which democracy assigns to them and make
democracy a really effective participatory democracy.
"Knowledge" said James Madison, "will for ever govern
ignorance and a people who mean to be their own
governors must arm themselves with the power
knowledge gives. A popular government without
popular information or the means of obtaining it, is but a
prologue to a force or tragedy or perhaps both." The
citizens' right to know the facts, the true facts, about the
administration of the country is thus one of the pillars of
a democratic State. And that is why the demand for
openness in the government is increasingly growing in
different parts of the world.
65. The demand for openness in the government is based
principally on two reasons. It is now widely accepted
that democracy does not consist merely in people
exercising their franchise once in five years to choose
their rules and, once the vote is cast, then retiring in
passivity and not taking any interest in the government.
Today it is common ground that democracy has a more
positive content and its orchestration has to be
continuous and pervasive. This means inter alia that
people should not only cast intelligent and rational
votes but should also exercise sound judgment on the
conduct of the government and the merits of public
policies, so that democracy does not remain merely a
sporadic exercise in voting but becomes a continuous
process of government -an attitude and habit of mind.
But this important role people can fulfil in a democracy
only if it is an open government where there is full
access to information in regard to the functioning of the
government."
It was further observed
"67. .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
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guaranteed under Article 19(1)(a).The approach of the
court must be to attenuate the area of secrecy as much as
possible consistently with the requirement of public
interest, bearing in mind all the time that disclosure also
serves an important aspect of public interest. It is in the
context of this background that we must proceed to
interpret Section 123 of the Indian Evidence Act."
From the aforesaid discussion it can be held that it is expected
by all concerned and as has been laid down by various decisions of
this Court that for survival of true democracy, the voter must be aware
of the antecedents of his candidate. Voter has to caste intelligent and
rational vote according to his own criteria. A well informed voter is
the foundation of democratic structure. That information to a voter,
who is the citizen of this country, is one facet of the fundamental right
under Article 19(1)(a).
ARTICLE 145 (3) OF THE CONSTITUTION OF INDIA
Mr. Arun Jaitley, learned Senior Counsel and Mr. Kirit N.
Raval, learned Solicitor General submitted that the question involved
in these petitions is a substantial question of law as to the
interpretation of the Constitution and, therefore, the matter may be
referred to a Bench consisting of Five Judges.
In our view, this contention is totally misconceived. Article
19(1)(a) is interpreted in numerous judgments rendered by this Court.
After considering various decisions and following tests laid therein,
this Court in Association for Democratic Reforms (supra) arrived at
the conclusion that for survival of the democracy, right of the voter to
know antecedents of a candidate would be part and parcel of his
fundamental right. It would be the basis for free and fair election
which is a basic structure of the Constitution. Therefore, the question
relating to interpretation of Article 19(1)(a) is concluded and there is
no other question which requires interpretation of Constitution.
Dealing with the similar contention, Five Judge Bench of this
Court in State of Jammu & Kashmir and others v. Thakur Ganga
Singh and another [(1960) 2 SCR 346] succinctly held thus:
"What does interpretation of a provision mean?
Interpretation is the method by which the true sense or
the meaning of the word is understood. The question of
interpretation can arise only if two or more possible
constructions are sought to be placed on a provision
one party suggesting one construction and the other a
different one. But where the parties agree on the true
interpretation of a provision or do not raise any question
in respect thereof, it is not possible to hold that the case
involves any question of law as to the interpretation of
the Constitution. On an interpretation of Art.14, a series
of decisions of this Court evolved the doctrine of
classification. As we have pointed out, at no stage of the
proceedings either the correctness of the interpretation of
Art. 14 or the principles governing the doctrine of
classification have been questioned by either of the
parties. Indeed accepting the said doctrine, the appellants
contended that there was a valid classification under the
rule while the respondents argued contra. The learned
Additional Solicitor General contended, for the first time,
before us that the appeal raised a new facet of the
doctrine of equality, namely, whether an artificial person
and a natural person have equal attributes within the
meaning of the equality clause, and, therefore, the case
involves a question of interpretation of the Constitution.
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This argument, if we may say so, involves the same
contention in a different garb. If analysed, the argument
only comes to this: as an artificial person and a natural
person have different attributes, the classification made
between them is valid. This argument does not suggest
a new interpretation of Art. 14 of the Constitution, but
only attempts to bring the rule within the doctrine of
classification. We, therefore, hold that the question
raised in this case does not involve any question of law as
to the interpretation of the Constitution."
The aforesaid judgment is referred to and relied upon in Sardar
Sardul Singh Caveeshar v. State of Maharashtra [(1964) 2 SCR
378].
From the judgment rendered by this Court in Association for
Democratic Reforms (supra), it is apparent that no such contention
was raised by the learned Solicitor General, who appeared in appeal
filed on behalf of the Union of India that question involved in that
matter was required to be decided by five-Judge Bench, as provided
under Article 145(3) of the Constitution. The question raised before
us has been finally decided and no other substantial question of law
regarding the interpretation of the Constitution survives. Hence, the
matter is not required to be referred to five-Judge Bench.
WHETHER IMPUGNED SECTION 33-B CAN BE CONSIDERED AS
VALIDATING PROVISION:
The learned counsel for the respondent submitted that by the
impugned legislation, most of the directions issued by the Court are
complied with and vacuum pointed out is filled in by the legislation.
It is their contention that the Legislature did not think it fit that the
remaining information as directed by this Court is required to be given
by a contesting candidate.
This submission is, on the face of it, against well settled legal
position. In a number of decisions rendered by this Court, similar
submission is negatived. The legislature has no power to review the
decision and set it at naught except by removing the defect which is
the cause pointed out by the decision rendered by the court. If this is
permitted it would sound the death knell of the rule of law as observed
by this Court in various decisions. In P. Sambamurthy v. State of
A.P. [(1987) 1 SCC 363] this Court observed:
"4. .. it is a basic principle of the rule of law that the
exercise of power by the executive or any other authority
must not only be conditioned by the Constitution but
must also be in accordance with law, and the power of
judicial review is conferred by the Constitution with a
view to ensuring that the law is observed and there is
compliance with the requirement of law on the part of the
executive and other authorities. It is through the power
of judicial review conferred on an independent
institutional authority such as the High Court that the rule
of law is maintained and every organ of the State is kept
within the limits of the law. Now if the exercise of the
power of judicial review can be set at naught by the
State Government by overriding the decision given
against it, it would sound the death-knell of the rule of
law. The rule of law would cease to have any meaning,
because then it would be open to the State Government
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to defy the law and yet to get away with it. The provisio
to clause (5) of Article 371-D is, therefore, clearly
violative of the basic structure doctrine."
In Re. Cauveri Water Disputes Tribunal [1993 Supp (1) SCC
96 (II)] the Court referred to and relied upon the decision in P.
Sambamurthy (supra). In that case, the Court dealt with the validity
of the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991
issued by the Government of Karnataka giving overriding effect that
notwithstanding anything contained in any order, report or decision of
any Court or Tribunal except the final decision under the provisions of
sub-Section (2) of Section 5 read with Section 6 of the Inter-State
Water Disputes Act, 1956 shall have any effect and held that the
Ordinance in question which seeks directly to nullify the order of the
Tribunal impinges on the judicial power of the State and is, therefore,
ultra vires. After referring to the earlier decisions, the Court observed
thus:
"74. it would be unfair to adopt legislative
procedure to undo a settlement which had become the
basis of a decision of the High Court. Even if legislation
can remove the basis of a decision, it has to do it by
alteration of general rights of a class but not by simply
excluding the specific settlement which had been held
to be valid and enforceable by a High Court. The object
of the Act was in effect to take away the force of the
judgment of the High Court. The rights under the
judgment would be said to arise independently of Article
19 of the Constitution.
76. The principle which emerges from these
authorities is that the legislature can change the basis on
which a decision is given by the Court and thus change
the law in general, which will affect a class of persons
and events at large. It cannot, however, set aside an
individual decision inter parties and affect their rights
and liabilities alone. Such an act on the part of the
legislature amounts to exercising the judicial power of
the State and to functioning as an appellate court or
tribunal."
Further, in The Municipal Corporation of the City of
Ahmedabad and another etc. etc. v. The New Shrock Spg. And Wvg.
Co. Ltd. etc. etc. [(1970) 2 SCC 280] this Court (in para 7) held
thus:
"But no Legislature in this country has power to
ask the instrumentalities of the State to disobey or
disregard the decisions given by courts. The limits of the
power of Legislatures to interfere with the directions
issued by courts were considered by several decisions of
this Court. In Shri Prithvi Cotton Mills Ltd. and
Another v. The Broach Borough Municipality and
others [(1969) 2 SCC 283], our present Chief Justice
speaking for the Constitution Bench of the Court
observed:
"Before we examine Section 3 to find
out whether it is effective in its purpose or
not we may say a few words about
validating statutes in general. When a
Legislature sets out to validate a tax
declared by a court to be illegally collected
under an ineffective or an invalid law, the
cause for ineffectiveness or invalidity must
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be removed before validation can be said to
take place effectively. The most important
condition of course, is that the Legislature
must possess the power to impose the tax
for, if it does not, the action must ever
remain ineffective and illegal. Granted
legislative competence, it is not sufficient to
declare merely that the decision of the
court shall not bind for that is tantamount
to reversing the decision in exercise of
judicial power which the Legislature does
not possess or exercise. A court's decision
must always bind unless the conditions on
which it is based are so fundamentally
altered that the decision could not have
been given in the altered circumstances.
Ordinarily, a court holds a tax to be
invalidly imposed because the power to tax
is wanting or the statute or the rules or both
are invalid or do not sufficiently create the
jurisdiction. Validation of a tax so declared
illegal may be done only if the grounds of
illegality or invalidity are capable of being
removed and are in fact removed and the tax
thus made legal. Sometime this is done by
providing for jurisdiction where jurisdiction
had not been properly invested before.
Sometimes this is done by re-enacting
retrospectively a valid and legal taxing
provision and then by fiction making the tax
already collected to stand under the re-
enacted law."
In Mahal Chand Sethia v. State of West Bengal
[Crl. A. No.75 of 1969, decided on 10.9.1969], Mitter, J.,
speaking for the Court stated the legal position in these
words:
"The argument of counsel for the
appellant was that although it was open to
the State legislature by an Act and the
Governor by an Ordinance to amend the
West Bengal Criminal Law Amendment
(Special Courts) Act, 1949, it was
incompetent for either of them to validate
an order of transfer which had already
been quashed by the issue of a writ of
certiorari by the High Court and the order of
transfer being virtually dead, could not be
resuscitated by the Governor or the
Legislature and the validating measures
could not touch any adjudication by the
Court.
..A court of law can pronounce
upon the validity of any law and declare the
same to be null and void if it was beyond
the legislative competence of the
Legislature or if it infringed the rights
enshrined in Part III of the Constitution.
Needless to add it can strike down or
declare invalid any Act or direction of a
State Government which is not authorised
by law. The position of a Legislature is
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however different. It cannot declare any
decision of a court of law to be void or of
not effect."
For the purpose of deciding these petitions, the principles
emerging from various decisions rendered by this Court from time to
time can inter alia be summarised thus:
the legislature can change the basis on which a
decision is rendered by this Court and change the law in
general. However, this power can be exercised subject to
Constitutional provision, particularly, legislative
competence and if it is violative of fundamental rights
enshrined in Part-III of the Constitution, such law would
be void as provided under Article 13 of the Constitution.
Legislature also cannot declare any decision of a Court of
law to be void or of no effect.
As stated above, this Court has held that Article 19(1)(a) which
provides for freedom of speech and expression would cover in its fold
right of the voter to know specified antecedents of a candidate, who is
contesting election. Once it is held that voter has a fundamental right
to know antecedents of his candidate, that fundamental right under
Article 19(1)(a) could be abridged by passing such legislation only as
provided under Article 19(2) which provides as under:
"19. Protection of certain rights regarding
freedom of speech, etc.(2) Nothing in sub-clause (a)
of clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far
as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in
the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with Foreign
States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an
offence."
So legislative competence to interfere with a fundamental right
enshrined in Article 19(1)(a) is limited as provided under Article
19(2).
Learned counsel for the respondents have not pointed out how
the impugned legislation could be justified or saved under Article
19(2).
DERIVATIVE FUNDAMENTAL RIGHT
Learned senior counsel Mr. Jaitley developed an ingenious
submission that as there is no specific fundamental right of the voter
to know antecedents of a candidate, the declaration by this Court of
such fundamental right can be held to be derivative, therefore, it is
open to the Legislature to nullify it by appropriate legislation.
In our view, this submission requires to be rejected as there is no
such concept of derivative fundamental rights. Firstly, it should be
properly understood that the fundamental rights enshrined in the
Constitution such as, right to equality and freedoms have no fixed
contents. From time to time, this Court has filled in the skeleton with
soul and blood and made it vibrant. Since last more than 50 years,
this Court has interpreted Articles 14, 19 and 21 and given meaning
and colour so that nation can have a truly republic democratic society.
This cannot be undone by such an Ordinance/Amended Act. For this,
we would refer to the discussion by Mohan, J in Unni Krishnan, J.P.
and Others v. State of Andhra Pradesh and others [(1993) 1 SCC
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645], while considering the ambit of Article 21, he succinctly placed it
thus:
"25. In Kesavananda Bharati v. State of Kerala [(1973)
4 SCC 225], Mathew J stated therein that the
fundamental rights themselves have no fixed
content, most of them are empty vessels into
which each generation must pour its content in
the light of its experience. It is relevant in this
context to remember that in building up a just
social order it is sometimes imperative that the
fundamental rights should be subordinated to
directive principles.
26. In Pathumma v. State of Kerala [(1978) 2 SCC 1],
it has been stated that:
"The attempt of the court should be
to expand the reach and ambit of the
fundamental rights rather than
accentuate their meaning and content
by process of judicial construction
Personal liberty in Article 21 is of the
widest amplitude."
27. In this connection, it is worthwhile to recall what
was said of the American Constitution in Missouri
v. Holland [252 US 416, 433]:
"When we are dealing with words that
also are constituent act, like the
Constitution of the United States, we
must realize that they have called into
life a being the development of which
could not have been foreseen
completely by the most gifted of its
begetters."
Thereafter, the Court pointed out that several unenumerated
rights fall within the ambit of Article 21 since personal liberty is of
widest amplitude and categorized them (in para 30) thus:
"(1) The right to go abroad. Satwant Singh Sawhney v.
D. Ramarathnam A.P.O., New Delhi [(1967) 3 SCR 525]
(2) The right to privacy. Gobind v. State of M.P.
[(1975) 2 SCC 148]. In this case reliance was placed on
the American decision in Griswold v. Connecticut [381
US 479, 510].
(3) The right against solitary confinement. Sunil
Batra v. Delhi Administration [(1978) 4 SCC 494, 545].
(4) The right against bar fetters. Charles Sobraj v.
Supdt. Central Jail [(1978) 4 SCC 104].
(5) The right to legal aid. M.H. Hoskot v. State of
Maharashtra [(1978) 3 SCC 544].
(6) The right to speedy trial. Hussainara Khatoon v.
Home Secretary, State of Bihar [(1980) 1 SCC 81].
(7) The right against handcuffing. Prem Shankar
Shukla v. Delhi Administration [(1980) 3 SCC 526].
(8) The right against delayed execution. T.V.
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Vatheeswaran v. State of T.N. [(1983) 2 SCC 68].
(9) The right against custodial violence. Sheela Barse
v. State of Maharashtra [(1983) 2 SCC 96].
(10) The right against public hanging. A.G. of India v.
Lachma Devi [1989 Supp (1) SCC 264].
(11) Doctor's assistance. Parmanand Katra v. Union of
India [(1989) 4 SCC 286].
(12) Shelter, Shantistar Builders v. N.K. Totame
[(1990) 1 SCC 520]."
Further, learned senior counsel Mr. Sachhar referred to the
following decisions of this Court giving meaning to the phrase
"freedom of speech and expression":
"(1) Romesh Thappar v. State of Madras [AIR 1950 SC
124]
Freedom of speech and expression includes
freedom of propagation of ideas which is ensured
by freedom of circulation. [Head note (ii)]
(2) Brij Bhushan and Another v. The State of Delhi
[AIR 1950 SC 129]
Pre-censorship of a journal is restriction on the
liberty of press.
(3) Hamdard Dawakhana and Another etc. v. Union of
India [AIR 1960 SC 554]
Advertisements meant for propagation of ideas or
furtherance of literature or human thought is a part
of Freedom of Speech and Expression.
(4) Sakal Papers (P) Ltd. and Others etc. v. Union of
India [AIR 1962 SC 305]
Freedom of Speech and Expression carries with it
the right to publish and circulate one's ideas,
opinions and views.
(5) Bennett Coleman and Co. and Ors. etc. v. Union of
India and Others [1972 (2) SCC 788]
Freedom of Press means right of citizens to speak,
publish and express their views as well as right
of people to read. (Para 45)
(6) Indian Express Newspapers (Bombay) (P) Ltd. and
Others v. Union of India and Others [1985 (1) SCC 641]
"Freedom of expression, as learned writers have
observed, has four broad social purposes to serve:
(I) it helps an individual to attain self fulfillment,
(ii) it assists in the discovery of truth, (iii) it
strengthens the capacity of an individual in
participating in decision-making and (iv) it
provides a mechanism by which it would be
possible to establish a reasonable balance between
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stability and social change."
(7) Odyssey Communications P. Ltd. v. Lokvidayan
Sanghatana and Others [1988 (3) SCC 410].
Freedom of Speech and Expression includes right
of citizens to exhibit film on doordarshan.
(8) S. Rangarajan v.P. Jagjivan Ram and others [1989
(2) SCC 574]
Freedom of Speech and Expression means the
right to express one's opinion by words of mouth,
writing, printing, picture or in any other manner.
It would thus include the freedom of
communication and the right to propagate or
publish opinions.
(9) LIC v. Mannubhai D. Shah [1992 (3) SCC 637]
Freedom of speech and expression is a natural
right which a human being acquires by birth. It
is, therefore, a basic human right (Art. 19 of
Universal Declaration of Human Rights relied on).
Every citizen, therefore, has a right to air his or her
views through the printing and/or electronic media
or through any communication method.
(10) Secy. Ministry of Information and Broadcasting,
Govt. of India and Others v. Cricket Association of
Bengal and Others [1995 (2) SCC 161]
"The right to freedom of 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."
(11) S.P. Gupta v. Union of India and Another [1981
Suppl. SCC 87 at 273]
Right to know is implicit in right of free speech
and expression. Disclosure of information
regarding functioning of the government must
be the rule.
(12) State of U.P. v. Raj Narain and Others [1975 (4)
SCC 428]
Freedom of speech and expression includes the
right to know every public act, everything that is
done in a public way, by their public functionaries.
(13) Dinesh Trivedi, MP and others v. Union of India
and others [(1997) 4 SCC 306]
Freedom of speech and expression includes right
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of the citizens to know about the affairs of the
Government."
There are many other judgments which are not required to be
reiterated in this judgment. All these developments of law giving
meaning to freedom of speech and expression or personal liberty are
not required to be re-considered nor there could be legislation so as to
nullify such interpretation except as provided under the exceptions to
Fundamental Rights.
Learned counsel for the respondents relied upon R. Rajagopal
alias R.R. Gopal and another v. State of T.N. and others [(1994) 6
SCC 632] and submitted that in the said case the Court observed that
right to privacy is not enumerated as fundamental right in our
Constitution but has been inferred from Article 21. In that case,
reliance was placed on Kharak Singh v. State of UP [(1994) 1 SCR
332], Gobind v. State of M.P. [(1975) 2 SCC 148] and other decisions
of English and American Courts and thereafter, the Court held that
petitioners have a right to publish what they alleged to be a life
story/autobiography of Auto Shankar insofar as it appears from the
public records, even without his consent or authorisation. But if they
go beyond that and publish his life story, they may be invading his
right to privacy for the consequences in accordance with law. For this
purpose, the Court held that a citizen has a right to safeguard the
privacy of his own, his family, marriage, procreation, motherhood,
child-bearing and education among other matters. None can publish
anything concerning the above matters without his consent whether
truthful or otherwise and whether laudatory or critical. Position may,
however, be different, if a person voluntarily thrusts himself into
controversy or voluntarily invites or raises a controversy. The Court
also pointed out an exception namely:
"This is for the reason that once a matter becomes
a matter of public record, the right to privacy no longer
subsists and it becomes a legitimate subject for comment
by press and media among others. We are, however, of
the opinion that in the interests of decency [Article
19(2)] an exception must be carved out to this rule, viz., a
female who is the victim of a sexual assault, kidnap,
abduction or a like offence should not further be
subjected to the indignity of her name and the incident
being publicised in press/media.
From the aforesaid observations learned Solicitor General Mr.
Raval and learned senior counsel Mr. Jaitley contended that rights
which are derivatives would be subject to reasonable restriction.
Secondly, it was sought to be contended that by insisting for
declaration of assets of a candidate, right to privacy is affected. In our
view, the aforesaid decision nowhere supports the said contention.
This Court only considered to what extent a citizen would have right
to privacy under Article 21. The court itself has carved out the
exceptions and restrictions on absolute right of privacy. Further, by
declaration of a fact, which is a matter of public record that a
candidate was involved in various criminal cases, there is no question
of infringement of any right of privacy. Similarly, with regard to the
declaration of assets also, a person having assets or income is
normally required to disclose the same under the Income Tax Act or
such similar fiscal legislation. Not only this, but once a person
becomes a candidate to acquire public office, such declaration would
not affect his right of privacy. This is the necessity of the day because
of statutory provisions of controlling wide spread corrupt practices as
repeatedly pointed out by all concerned including various reports of
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Law Commission and other Committees as stated above.
Even the Prime Minister of India in one of his Speeches has
observed to the same effect. This has been reproduced in B.R.
Kapur's case (supra) by Pattanaik, J. (as he then was) (in Para 74)
as under:
".. Mr. Diwan in course of his arguments, had raised
some submissions on the subject "Criminalisation of
Politics" and participation of criminals in the electoral
process as candidates and in that connection, he had
brought to our notice the order of the Election
Commission of India dated 28.8.1997. . "Whither
Accountability", published in The Pioneer, Shri Atal
Behari Vajpayee had called for a national debate on all
the possible alternatives for systematic changes to
cleanse our democratic governing system of its present
mess. He has expressed his dissatisfaction that neither
Parliament nor the State Vidhan Sabhas are doing, with
any degree of competence or commitment, what they are
primarily meant to do: legislative function. According to
him, barring exceptions, those who get elected to these
democratic institutions are neither trained, formally or
informally, in law making nor do they seem to have an
inclination to develop the necessary knowledge and
competence in their profession. He has further indicated
that those individuals in society who are generally
interested in serving the electorate and performing
legislative functions are finding it increasingly difficult to
succeed in today's electoral system and the electoral
system has been almost totally subverted by money
power, muscle power, and vote bank considerations of
castes and communities. Shri Vajpayee also had
indicated that the corruption in the governing structures
has, therefore, corroded the very core of elective
democracy. According to him, the certainty of scope of
corruption in the governing structure has heightened
opportunism and unscrupulousness among political
parties, causing them to marry and divorce one another at
will, seek opportunistic alliances and coalitions often
without the popular mandate. Yet they capture and
survive in power due to inherent systematic flows. He
further stated that casteism, corruption and politicisation
have eroded the integrity and efficacy of our civil service
structure also. The manifestos, policies, programmes of
the political parties have lost meaning in the present
system of governance due to lack of accountability."
Further, this Court while dealing with the election expenses
observed in Common Cause v. Union of India and others [(1996) 2
SCC 752] observed thus:
"18 Flags go up, walls are painted and hundreds
of thousands of loudspeakers play out the loud
exhortations and extravagant promises. VIPs and VVIPs
come and go, some of them in helicopters and air-taxies.
The political parties in their quest for power spend more
than one thousand crore of rupees on the General
Election (Parliament alone), yet nobody accounts for
the bulk of the money so spent and there is no
accountability anywhere. Nobody discloses the source
of the money. There are no proper accounts and no
audit. From where does the money come nobody knows.
In a democracy where rule of law prevails this type of
naked display of black money, by violating the
mandatory provisions of law, cannot be permitted."
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To combat this naked display of unaccounted / black money by
the candidate, declaration of assets is likely to have check of violation
of the provisions of the Act and other relevant Acts including Income
Tax Act.
Further, the doctrine of the Parliamentary sovereignty as it
obtains in England does not prevail here except to the extent and in
the fields provided by the Constitution. The entire scheme of the
Constitution is such that it ensures the sovereignty and integrity of the
country as a Republic and the democratic way of life by parliamentary
institutions based on free and fair elections.
In P.V. Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC
626], this Court observed thus
"47 Parliamentary democracy is part of the basic
structure of the Constitution. It is settled law that in
interpreting the constitutional provision the Court should
adopt a construction which strengthens the foundational
features and basic structure of the Constitution. [See:
Sub-Committee on Judicial Accountability v. Union of
India [(1991) 4 SCC 699]."
In C. Narayanaswamy v. C.K. Jaffer Sharief and others [1994
Supp. (3) SCC 170] the Court observed (in para 22) thus:
".If the call for "purity of elections" is not to be
reduced to a lip service or a slogan, then the persons
investing funds, in furtherance of the prospect of the
election of a candidate must be identified and located.
The candidate should not be allowed to plead ignorance
about the persons who have made contributions and
investments for the success of the candidate concerned at
the election. But this has to be taken care of by
Parliament.
In T.N. Seshan, CEC of India v. Union of India and others
[(1995) 4 SCC 611], this Court observed thus
"10. The Preamble of our Constitution proclaims that
we are a Democratic Republic Democracy being the
basic feature of our constitutional set-up, there can be no
two opinions that free and fair elections to our legislative
bodies alone would guarantee the growth of a healthy
democracy in the country."
As observed in Kesavananda Bharati's case (supra), the
fundamental rights themselves have no fixed content and it is also to
be stated that the attempt of the Court should be to expand the reach
and ambit of the fundamental rights. The Constitution is required to
be kept young, energetic and alive. In this view of the matter, the
contention raised by the learned counsel for the respondents, that as
the phrase 'freedom of speech and expression' is given the meaning to
include citizens' right to know the antecedents of the candidates
contesting election of MP or MLA, such rights could be set at naught
by legislature, requires to be rejected.
RIGHT TO VOTE IS STATUTORY RIGHT:
Learned counsel for the respondents vehemently submitted that
right to elect or to be elected is pure and simple statutory right and in
the absence of statutory provision neither citizen has a right to elect
nor has he a right to be elected because such right is neither
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fundamental right nor a common law right. It is, therefore, submitted
that it cannot be held that a voter has any fundamental right of
knowing the antecedents/assets of a candidate contesting the election.
Learned Solicitor General Mr. Raval also submitted that on the basis
of the decision rendered by this Court, the Act is amended by the
impugned Ordinance/Amendment Act. However, for the directions
which are left out, the presumption would be it is deliberate
omission on the part of Legislature and, therefore, there is no question
of it being violative of Article 19(1)(a). He submitted that law
pertaining to election depends upon statutory provisions. Right to
vote, elect or to be elected depends upon statutory rights. For this
purpose, he referred to the decision in N. P. Punnuswami v.
Returning Officer [1952 SCR 218], G. N. Narayanswami v. G.
Pannerselvam and others [(1972) 3 SCC 717] and C.
Narayanaswamy v. C.K. Jaffer Sharief and others [1994 Supp. (3)
SCC 170].
There cannot be any dispute that the right to vote or stand as a
candidate for election and decision with regard to violation of election
law is not a civil right but is a creature of statute or special law and
would be subject to the limitations envisaged therein. It is for the
Legislature to examine and provide provisions relating to validity of
election and the jurisdiction of the Court would be limited in
accordance with such law which creates such election Tribunal.
In the case of N. P. Punnuswami (supra), a person whose
nomination paper was rejected, filed a writ of certiorari, which was
dismissed on the ground that it had no jurisdiction to interfere with the
order of the Returning officer by reason of Article 329(b) of the
Constitution.
In the case of G. N. Narayanswami (supra), this Court was
dealing with the election petition wherein the issue which was
required to be decided was whether the respondent was not qualified
to stand for election to the Graduates constituency on all or any of the
grounds set out by the petitioner in paragraphs 7 to 9 of the election
petition. The Court referred to Article 171 and thereafter observed
that the term 'electorate' used in Article 171(3)(a)(b)(c) has neither
been defined by the Constitution nor in any enactment by Parliament.
The Court thereafter referred to the definition of 'elector' given in
Section 2(1)(a) of the RP Act and held that considering the language
as well as the legislative history of Articles 171 and 173 of the
Constitution and Section 6 of the RP Act, there could be a
presumption of deliberate omission of the qualification that the
representative of the Graduates should also be a graduate.
Similarly, in C. Narayanaswamy's case (supra), the Court was
dealing with the validity of an election of a candidate on the ground of
alleged corrupt practice as provided under Section 123(1)(A) of the
Act and in that context the Court held that right of a person to
question the validity of an election is dependent on a conditions
prescribed in the different Sections of the Act and the Rules framed
thereunder. The Court thereafter held that as the Act does not provide
that any expenditure incurred by a political party or by any other
association or body of persons or any individual other than the
candidate or his election agent, it shall not be deemed to be
expenditure in connection with the election or authorised by a
candidate or his election agent for the purpose of sub-section (1) of
Section 77 read with Rule 90.
Learned counsel further referred to the decisions in Jyoti Basu
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& ors. v. Debi Ghosal & ors. [(1982) 1 SCC 691] wherein similar
observations are made by this Court while deciding election petition:
"8. 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. So is the right to be elected.
So is the right to dispute an election. Outside of statute,
there is no right to elect, no right to be elected and no
right to dispute an election. Statutory creations they are,
and therefore, subject to statutory limitation.
Concepts familiar to Common Law and Equity must
remain strangers to Election Law unless statutorily
embodied. A Court has no right to resort to them on
considerations of alleged policy because policy in such
matters as those, relating to the trial of election disputes,
is what the statute lays down. .. We have already
referred to the Scheme of the Act. We have noticed the
necessity to rid ourselves of notions based on Common
Law or Equity. We see that we must seek an answer to
the question within the four corners of the statute. What
does the Act say?
It has to be stated that in an election petition challenging the
validity of election, rights of the parties are governed by the statutory
provisions for setting aside the election but this would not mean that a
citizen who has right to be a voter and elect his representative in the
Lok Sabha or Legislative Assembly has no fundamental right. Such a
voter who is otherwise eligible to cast vote to elect his representative
has statutory right under the Act to be a voter and has also a
fundamental right as enshrined in Chapter-III. Merely because a
citizen is a voter or has a right to elect his representative as per the
Act, his fundamental rights could not be abridged, controlled or
restricted by statutory provisions except as permissible under the
Constitution. If any statutory provision abridges fundamental right,
that statutory provision would be void. It also requires to be well
understood that democracy based on adult franchise is part of the
basic structure of the Constitution. The right of adult to take part in
election process either as a voter or a candidate could be restricted by
a valid law which does not offend Constitutional provisions. Hence,
the aforesaid judgments have no bearing on the question whether a
citizen who is a voter has fundamental right to know antecedents of
his candidate. It cannot be held that as there is deliberate omission in
law, the right of the voter to know antecedents of the candidates,
which is his fundamental right under Article 19(1)(a), is taken away.
Mr. Raval, learned Solicitor General submitted that an
enactment can not be struck down on the ground that Court thinks it
unjustified. Members of the Parliament or the Legislature are
representatives of the people and are supposed to know and be aware
of what is good and bad for the people. The Court can not sit in the
judgment over their wisdom. He relied upon the decision rendered by
this Court in Dr. P. Nalla Thampy Terah v. Union of India & Ors.
[1985 Suppl. SCC 189], wherein the Court considered the validity of
Section 77(1) of the Act and referred to report of the Santhanam
Committee on Prevention of Corruption, which says (para 10):
"The public belief in the prevalence of corruption
at high political levels has been strengthened by the
manner in which funds are collected by political parties,
especially at the time of elections. Such suspicions
attach not only to the ruling party but to all parties, as
often the opposition can also support private vested
interests as well as members of the Government party. It
is, therefore, essential that the conduct of political parties
should be regulated in this matter by strict principles in
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relation to collection of funds and electioneering. It has
to be frankly recognised that political parties cannot be
run and elections cannot be fought without large funds.
But these funds should come openly from the supporters
or sympathisers of the parties concerned."
The Court also referred to various decisions and thereafter held
thus:
"13. We have referred to this large data in order to
show that the influence of big money on the election
process is regarded universally as an evil of great
magnitude. But then, the question which we, as Judges,
have to consider is whether the provision contained in
Explanation 1 suffers from any constitutional infirmity
and, particularly, whether it violates Article 14. On that
question we find it difficult, reluctantly though, to accept
the contention that Explanation 1 offends against the
right to equality. Under that provision, (i) a political party
or (ii) any other association or body of persons or (iii)
any individual, other than the candidate or his election
agent, can incur expenses, without any limitation
whatsoever, in connection with the election of a
candidate. Such expenses are not deemed to be
expenditure in connection with the election, incurred or
authorised by the candidate or by his election agent for
the purposes of Section 77(1)."
Learned Solicitor General heavily relied upon paragraph 19,
wherein the Court observed thus:
"The petitioner is not unjustified in criticising the
provision contained in Explanation 1 as diluting the
principle of free and fair elections, which is the
cornerstone of any democratic polity. But, it is not for
us to lay down policies in matters pertaining to
elections. If the provisions of the law violate the
Constitution, they have to be struck down. We cannot,
however, negate a law on the ground that we do not
approve of the policy which underlies it."
From the aforesaid discussion it is apparent that the Court in
that case was dealing with the validity of the Explanation-I and was
deciding whether it suffered from any Constitutional infirmity,
particularly, whether it was violative of Article 14. The question of
Article 19(1)(a) was not required to be considered and the Court had
not even touched it. At the same time, there cannot be any dispute
that if the provisions of the law violate the Constitutional provisions,
they have to be struck down and that is what is required to be done in
the present case. It is made clear that no provision is nullified on the
ground that the Court does not approve the underlying the policy of
the enactment.
As against this, Mr. Sachar, learned senior counsel rightly
referred to a decision rendered by this Court in Bennett Coleman &
Co. & Ors. v. Union of India & Ors. [(1972) 2 SCC 788], where
similar contentions were raised and negatived while imposing
restrictions by Newspaper Control Order. The Court's relevant
discussion is as under:
"31. Article 19(1)(a) provides that all citizens shall have
the right to freedom of speech and expression, Article
19(2) states that nothing in sub-clause (a) of clause (1)
shall affect the operation of any existing law, or prevent
the State from making any law, insofar as such law
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imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of
the security of the State; friendly relations with foreign
States, public order, decency or morality, or in relation to
contempt of court, defamation or incitement to an
offence. Although Article 19(1)(a) does not mention the
freedom of the Press, it is the settled view of this Court
that freedom of speech and expression includes freedom
of the Press and circulation.
32. In the Express Newspapers case (supra) it is said
that there can be no doubt that liberty of the Press is an
essential part of the freedom of speech and expression
guaranteed by Article 19(1)(a). The Press has the right of
free propagation and free circulation without any previous
restraint on publication. If a law were to single out the
Press for laying down prohibitive burdens on it that
would restrict the circulation, penalise its freedom of
choice as to personnel, prevent newspapers from being
started and compel the press to Government aid. This
would violate Article 19(1)(a) and would fall outside the
protection afforded by Article 19(2).
33. In Sakal Papers case (supra) it is said that the
freedom of speech and expression guaranteed by Article
19(1) gives a citizen the right to propagate and publish
his ideas to disseminate them, to circulate them either by
words of mouth or by writing. This right extends not
merely to the matter it is entitled to circulate but also to
the volume of circulation. In Sakal Papers case (supra)
the Newspaper (Price and Page) Act, 1956 empowered
the Government to regulate the prices of newspapers in
relation to their pages and sizes and to regulate the
allocation of space for advertisement matter. The
Government fixed the maximum number of pages that
might be published by a newspaper according to the price
charged. The Government prescribed the number of
supplements that would be issued. This Court held that
the Act and the Order placed restraints on the freedom of
the press to circulate. This Court also held that the
freedom of speech could not be restricted for the
purpose of regulating the commercial aspects of
activities of the newspapers."
The Court also dealt with the contention that newsprint policy
does not directly deal with the fundamental right mentioned in Article
19(1)(a). It was also contended that regulatory statutes which do not
control the content of speech but incidentally limit the ventured
exercise are not regarded as a type of law. Any incidental limitation
or incidental restriction on freedom of speech is permissible as the
same is essential to the furtherance of important governmental interest
in regulating speech and freedom. The Court negatived the said
contention and in para 39 held thus:
"39. Mr. Palkhivala said that the tests of pith and
substance of the subject-matter and of direct and
incidental effect of the legislation are relevant to
questions of legislative competence but they are
irrelevant to the question of infringement of fundamental
rights. In our view this is a sound and correct approach to
interpretation of legislative measures and State action in
relation to fundamental rights. The true test is whether
the effect of the impugned action is to take away or
abridge fundamental rights. If it be assumed that the
direct object of the law or action has to be direct
abridgement of the right of free speech by the impugned
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law or action it is to be related to the directness of effect
and not to the directness of the subject matter of the
impeached law or action. The action may have a direct
effect on a fundamental right although its direct subject-
matter may be different."
The Court observed in Paragraph 80 at page 823:
" The faith in the popular Government rests on
the old dictum, "let the people have the truth and the
freedom to discuss it and all will go well." The liberty of
the press remains an "Art of the Covenant" in every
democracy."
Further, the freedom of speech and expression, as has been held
repeatedly, is basic to and indivisible from a democratic polity. It
includes right to impart and receive information. [Secretary, Min. of
Information & Broadcasting (supra)]. Restriction to the said right
could be only as provided in Article 19(2). This aspect is also
discussed in paragraph 151 (page 270) thus:
"Article 19(1)(a) declares that all citizens shall
have the right of freedom of speech and expression.
Clause (2) of Article 19, at the same time, provides that
nothing in sub-clause (i) of clause (1) shall affect the
operation of any existing law or prevent the State from
making any law, insofar as such law imposes reasonable
restrictions on the exercise of the right conferred by the
said sub-clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly
relations with the foreign States, public order, decency or
morality or in relation to contempt of court, defamation
or incitement of an offence. The grounds upon which
reasonable restrictions can be placed upon the freedom of
speech and expression are designed firstly to ensure that
the said right is not exercised in such a manner as to
threaten the sovereignty and integrity of India, security of
the State, friendly relations with the foreign States,
Public order, decency or morality. Similarly, the said
right cannot be so exercised as to amount to contempt of
court, defamation or incitement of an offence. Existing
laws providing such restrictions are saved and the State is
free to make laws in future imposing such restrictions.
The grounds aforesaid are conceived in the interest of
ensuring and maintaining conditions in which the said
right can meaningfully and peacefully be exercised by
the citizens of this country."
Hence, in our view, right of a voter to know bio-data of a
candidate is the foundation of democracy. The old dictum let the
people have the truth and the freedom to discuss it and all will go well
with the Government should prevail.
The true test for deciding the validity of the Act is whether it
takes away or abridges fundamental rights of the citizens? If there is
direct abridgment of fundamental right of freedom of speech and
expression, the law would be invalid.
Before parting with the case, there is one aspect which is to be
dealt with. After the judgment in Association for Democratic
Reforms case, the Election Commission gave certain directions in
implementation of the judgment by its Order No.3/ER/2002/JS-
II/Vo1-111, dated 28th June, 2002. In the course of arguments,
learned Solicitor General as well as learned senior counsel appearing
for the intervenor (B.J.P.) pointed out that direction no.4 is beyond the
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competence of the Election Commission and moreover, it is not
necessary to give effect to the judgment of this Court. The said
direction reads as follows:
"Furnishing of any wrong or incomplete
information or suppression of any material information
by any candidate in or from the said affidavit may also
result in the rejection of his nomination paper where such
wrong or incomplete information or suppression of
material information is considered by the returning
officer to be a defect of substantial character, apart from
inviting penal consequences under the Indian Penal Code
for furnishing wrong information to a public servant or
suppression of material facts before him:
Provided that only such information shall be
considered to be wrong or incomplete or amounting to
suppression of material information as is capable of easy
verification by the returning officer by reference to
documentary proof adduced before him in the summary
inquiry conducted by him at the time of scrutiny of
nominations under section 36(2) of the Representation of
the People Act, 1951, and only the information so
verified shall be taken into account by him for further
consideration of the question whether the same is a defect
of substantial character."
While no exception can be taken to the insistence of affidavit
with regard to the matters specified in the judgment in Association for
Democratic Reforms case, the direction to reject the nomination
paper for furnishing wrong information or concealing material
information and providing for a summary enquiry at the time of
scrutiny of the nominations, cannot be justified. In the case of assets
and liabilities, it would be very difficult for the returning officer to
consider the truth or otherwise of the details furnished with reference
to the 'documentary proof'. Very often, in such matters the
documentary proof may not be clinching and the candidate concerned
may be handicapped to rebut the allegation then and there. If
sufficient time is provided, he may be able to produce proof to
contradict the objector's version. It is true that the aforesaid
directions issued by the Election Commission is not under challenge
but at the same time prima facie it appears that the Election
Commission is required to revise its instructions in the light of
directions issued in Association for Democratic Reforms case (supra)
and as provided under the Representation of the People Act and its 3rd
Amendment.
Finally, after the amendment application was granted, following
additional contentions were raised:
1. Notice should be issued to the Attorney General as
vires of the Act is challenged.
2. Parliament in its wisdom and after due deliberation
has amended the Act and has also incorporated the
directions issued by this Court in its earlier
judgment in Association for Democratic Reforms
(supra) including the direction for declaration of
assets and liabilities of every elected candidate for
a House of Parliament. They are also required to
declare assets of their spouse and dependent
children.
The contention that notice is required to be issued to the
Attorney General as vires of the Act is challenged, is of no substance
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because 'Union of India' is party respondent and on its behalf learned
Solicitor General is appearing before the Court. He has forcefully
raised the contentions which were required to be raised at the time of
hearing of the matter. So, service of notice to learned Attorney
General would be nothing but empty formality and the contention is
raised for the sake of raising such contention.
Further, we have also reproduced certain recommendations of
the National Commission to Review the Working of the Constitution
in the earlier paragraphs and have also relied upon the same. In the
report, the Commission has recommended that any person charged
with any offence punishable with imprisonment for a maximum term
of five years or more, should be disqualified for being chosen as, or
for being, a member of Parliament or Legislature of a State on the
expiry of a period of one year from the date the charges were framed
against him by the Court in that offence. The Commission has also
recommended that every candidate at the time of election must declare
his assets and liabilities along with those of his close relatives and all
candidates should be required under law to declare their assets and
liabilities by an affidavit and the details so given by them should be
made public. Again, the legislators should be required under law to
submit their returns about their liabilities every year and a final
statement in this regard at the end of their term of office. Many such
other recommendations are reproduced in earlier paragraphs.
With regard to the second contention, it has already been dealt
with in previous paragraphs.
What emerges from the above discussion can be summarised
thus:
(A) The legislature can remove the basis of a decision
rendered by a competent Court thereby rendering that
decision ineffective but the legislature has no power to
ask the instrumentalities of the State to disobey or
disregard the decisions given by the Court. A declaration
that an order made by a Court of law is void is normally a
part of the judicial function. Legislature cannot declare
that decision rendered by the Court is not binding or is of
no effect.
It is true that legislature is entitled to change the
law with retrospective effect which forms the basis of a
judicial decision. This exercise of power is subject to
constitutional provision, therefore, it cannot enact a law
which is violative of fundamental right.
(B) Section 33-B which provides that notwithstanding
anything contained in the judgment of any Court or
directions 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 the Act or the
Rules made thereunder, is on the face of it beyond the
legislative competence, as this Court has held that voter
has a fundamental right under Article 19(1)(a) to know
the antecedents of a candidate for various reasons
recorded in the earlier judgment as well as in this
judgment.
Amended Act does not wholly cover the directions
issued by this Court. On the contrary, it provides that
candidate would not be bound to furnish certain
information as directed by this Court.
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(C) The judgment rendered by this Court in Association for
Democratic Reforms (supra) has attained finality,
therefore, there is no question of interpreting
constitutional provision which calls for reference under
Article 145(3).
(D) The contention that as there is no specific fundamental
right conferred on a voter by any statutory provision to
know the antecedents of a candidate, the directions given
by this Court are against the statutory provisions are, on
the face of it, without any substance. In an election
petition challenging the validity of an election of a
particular candidate, the statutory provisions would
govern respective rights of the parties. However, voters'
fundamental right to know antecedents of a candidate is
independent of statutory rights under the election law. A
voter is first citizen of this country and apart from
statutory rights, he is having fundamental rights
conferred by the Constitution. Members of a democratic
society should be sufficiently informed so that they may
cast their votes intelligently in favour of persons who are
to govern them. Right to vote would be meaningless
unless the citizens are well informed about the
antecedents of a candidate. There can be little doubt that
exposure to public gaze and scrutiny is one of the surest
means to cleanse our democratic governing system and to
have competent legislatures.
(E) It is established that fundamental rights themselves have
no fixed content, most of them are empty vessels into
which each generation must pour its content in the light
of its experience. The attempt of the Court should be to
expand the reach and ambit of the fundamental rights by
process of judicial interpretation. During last more than
half a decade, it has been so done by this Court
consistently. There cannot be any distinction between
the fundamental rights mentioned in Chapter-III of the
Constitution and the declaration of such rights on the
basis of the judgments rendered by this Court.
In the result, Section 33-B of the Amended Act is held to be
illegal, null and void. However, this judgment would not have any
retrospective effect but would be prospective. Writ petitions stand
disposed of accordingly.
.....J.
(M.B. SHAH)
..J.
(D.M. DHARMADHIKARI)
New Delhi;
March 13, 2003.
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