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CASE NO.:

Appeal (civil) 7178 of 2001

Writ Petition (civil) 294 of 2001

PETITIONER:

UNION OF INDIA

Vs.

RESPONDENT:

AS&SOACNIOATTHIEORN FOR DEMOCRATIC REFORMS

DATE OF JUDGMENT: 02/05/2002

BENCH:

M.B. Shah, Bisheshwar Prasad Singh & H.K. Sema

JUDGMENT:

Shah, J.

Short but important question involved in these matters isin a

nation wedded to republican and democratic form of government,

where election as a Member of Parliament or as a Member of

Legislative Assembly is of utmost importance for governance of the

country, whether, before casting votes, voters have a right to know

relevant particulars of their candidates? Further connected question

iswhether the High Court had jurisdiction to issue directions, as

stated below, in a writ petition filed under Article 226 of the

Constitution of India?

Before dealing with the aforesaid questions, we would refer to

the brief facts as alleged by the Petitioner-Association for Democratic

Reforms in Writ Petition No.7257 of 1999 filed before the High Court

of Delhi for direction to implement the recommendations made by the

Law Commission in its 170th Report and to make necessary changes

under Rule 4 of the Conduct of Election Rules, 1961. It has been

pointed out that Law Commission of India had, at the request of

Government of India, undertaken comprehensive study of the

measures required to expedite hearing of election petitions and to have

a thorough review of the Representation of the People Act, 1951

(hereinafter referred to as "the Act") so as to make the electoral

process more fair, transparent and equitable and to reduce the

distortions and evils that have crept into the Indian electoral system

and to identify the areas where the legal provisions required

strengthening and improvement. It is pointed out that Law

Commission has made recommendation for debarring a candidate

from contesting an election if charges have been framed against him

by a Court in respect of certain offences and necessity for a candidate

seeking to contest election to furnish details regarding criminal cases,

if any, pending against him. It has also suggested that true and correct

statement of assets owned by the candidate, his/her spouse and

dependant relations should also be disclosed. Petitioner has also

referred Para 6.2 of the report of the Vohra Committee of the

Government of India, Ministry of Home Affairs, which reads as

follows:

"6.2 Like the Director CBI, the DIB has also

stated that there has been a rapid spread and growth of

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criminal gangs, armed senas, drug Mafias, smuggling

gang, drug peddlers and economic lobbies in the country

which have, over the years, developed an extensive

network of contacts with the bureaucrats/Government

functionaries at the local levels, politicians, media

persons and strategically located individuals in the non

State sector. Some of these Syndicates also have

international linkages, including the foreign intelligence

agencies. In this context the DIB has given the following

examples

(i) In certain States like Bihar, Haryana and UP, these

gangs enjoy the patronage of local level

politicians, cutting across party lines and the

protection of Governmental functionaries. Some

political leaders become the leaders of these gangs,

armed senas and over the years get themselves

elected to local bodies, State Assemblies and the

national Parliament. Resultantly, such elements

have acquired considerable political clout

seriously jeopardising the smooth functioning of

the administration and the safety of life and

property of the common man causing a sense of

despair and alienation among the people;

(ii) The big smuggling Syndicates having international

linkages have spread into and infected the various

economic and financial activities, including havala

transactions, circulation of black money and

operations of a vicious parallel economy causing

serious damage to the economic fibre of the

country. These Syndicates have acquired

substantial financial and muscle power and social

respectability and have successfully corrupted the

Government machinery at all levels and yield

enough influence to make the task of Investigating

and Prosecuting agencies extremely difficult; even

the members of the Judicial system have not

escaped the embrace of the Mafia;

(iii) Certain elements of the Mafia have shifted to

narcotics, drugs and weapon smuggling and

established narco-terrorism networks specially in

the States of J&K, Punjab, Gujarat and

Maharashtra. The cost of contesting elections has

thrown the politician into the lap of these elements

and led to a grave compromise by officials of the

preventive/detective systems. The virus has spread

to almost all the centres in the country, the coastal

and the border States have been particularly

affected;

(iv) The Bombay bomb blast case and the communal

riots in Surat and Ahmedabad have demonstrated

how the India underworld has been exploited by

the Pak ISI and the latter's network in UAE to

cause sabotage subversion and communal tension

in various parts of the country. The investigations

into the Bombay bomb blast cases have revealed

expensive linkages of the underworld in the

various governmental agencies, political circles,

business sector and the film world."

It is also contended that despite the Reports of the Law

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Commission and Vohra Committee, successive governments have

failed to take any action and, therefore, petition was filed for

implementation of the said reports and for a direction to the Election

Commission to make mandatory for every candidate to provide

information by amending Form 2-A to 2-E prescribed under the

Conduct of Election Rules, 1961. After hearing the parties, the High

Court by judgment and order dated 2nd November, 2000, held that it is

the function of the Parliament to make necessary amendments in the

Representation of the People Act, 1951 or the Election Rules and,

therefore, Court cannot pass any order, as prayed, for amending the

Act or the Rules.

However, the Court consideredwhether or not an elector, a

citizen of the country has a fundamental right to receive the

information regarding the criminal activities of a candidate to the Lok

Sabha or Legislative Assembly for making an estimate for himself

as to whether the person who is contesting the election has a

background making him worthy of his vote, by peeping into the past

of the candidate. After considering the relevant submissions and the

reports as well as the say of Election Commission, the High Court

held that for making a right choice, it is essential that the past of the

candidate should not be kept in the dark as it is not in the interest of

the democracy and well being of the country. The Court directed the

Election Commission to secure to voters the following information

pertaining to each of the candidates contesting election to the

Parliament and to the State Legislature and the parties they

represent:

1. Whether the candidate is accused of any offence(s)

punishable with imprisonment? If so, the details

thereof.

2. Assets possessed by a candidate, his or her spouse

and dependant relations?

3. Facts giving insight to candidate's competence,

capacity and suitability for acting as

parliamentarian or legislator including details of

his/her educational qualifications;

4. Information which the election commission

considers necessary for judging the capacity and

capability of the political party fielding the

candidate for election to Parliament or the State

Legislature.

That order is challenged by Union of India by filing the present

appeal.

On behalf of Indian National Congress I.A. No.2 of 2001 is also

filed for impleadment/intervention in the appeal filed by the Union of

India by inter alia contending that the High Court ought to have

directed the writ petitioners to approach the Parliament for appropriate

amendments to the Act instead of directing the Election Commission

of India to implement the same. I.A. for intervention is granted.

Further, People's Union for Civil Liberties (PUCL) has filed

Writ Petition No.294 of 2001 under Article 32 of the Constitution

praying that writ, order or direction be issued to the respondents

(a) to bring in such measures which provide for declaration of assets

by the candidate for the elections and for such mandatory declaration

every year during the tenure as an elected representative as MP/MLA;

(b) to bring in such measures which provide for declaration by the

candidate contesting election whether any charge in respect of any

offence has been framed against him/her; and (c) to frame such

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guidelines under Article 141 of the Constitution by taking into

consideration 170th Report of Law Commission of India.

SUBMISSIONS:

We have heard the learned counsel for the parties at length. Mr.

Harish N. Salve, learned Solicitor General appearing for Union of

India submitted that till suitable amendments are made in the Act and

Rules thereunder, the High Court should not have given any direction

to the Election Commission. He referred to various Sections of the

Act and submitted that Section 8 provides for disqualification on

conviction for certain offences and Section 8A provides for

disqualification on ground of corrupt practices. Section 32 provides

nomination of candidate for election if he is qualified to be chosen to

fill that seat under the provisions of the Constitution and the Act or

under the provisions of the Government of Union Territories Act,

1963. Thereafter, elaborate procedure is prescribed for presentation

of nomination paper and requirements for a valid nomination. Finally,

Section 36 provides for scrutiny of nominations and empowers the

returning officer to reject any nomination on the following grounds

(a) that on the date fixed for the scrutiny of

nominations the candidate either is not qualified or

is disqualified for being chosen to fill the seat

under any of the following provisions that may be

applicable, namely

Articles 84, 102, 173 and 191,

Part II of this Act and sections 4 and 14 of the

Government of Union Territories Act, 1963 (20 of

1963); or

(b) that there has been a failure to comply with any of

the provisions of Section 33 or Section 34; or

(c) that the signature of the candidate or the proposer

on the nomination paper is not genuine.

It is his submission that it is for the political parties to decide

whether such amendments should be brought and carried out in the

Act and the Rules. He further submitted that as the Act or the Rules

nowhere disqualify a candidate for non-disclosure of the assets or

pending charge in a criminal case and, therefore, directions given by

the High Court would be of no consequence and such directions ought

not to have been issued.

Supplementing the aforesaid submission, Mr. Ashwini Kumar,

learned senior counsel appearing on behalf of intervenorIndian

National Congress submitted that the Constituent Assembly had

discussed and negatived requirement of educational qualification and

possession of the assets to contest election. For that purpose, he

referred to the Debates in the Constituent Assembly. He submitted

that 3/4th of the population is illiterate and providing education as a

qualification for contesting election was not accepted by the

Constituent Assembly. Similarly, prescribing of property

qualification for the candidates to contest election was also negatived

by the Constituent Assembly. He, therefore, submitted that furnishing

of information regarding assets and educational qualification of a

candidate is not at all relevant for contesting election and even for

casting votes. Voters are not influenced by the educational

qualification or by possession of wealth by a contesting candidate. It

is his say that the party whom he represents is interested in purity of

election and wants to stop entry of criminals in politics or its

criminalisation but it is for the Parliament to decide the said question.

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It is submitted that delicate balance is required to be maintained with

regard to the jurisdiction of the Parliament and that of Courts and once

the Parliament has not amended the Act or the Rules despite the

recommendation made by the Law Commission or the report

submitted by the Vohra Committee, there was no question of giving

any direction by the High Court to the Election Commission.

Mr. K.K. Venugopal, learned senior counsel appearing on

behalf of Election Commission exhaustively referred to the counter

affidavit filed on behalf of Election Commission. At this stage, we

would refer to some part from the said affidavit. It is stated that issue

of 'persons with criminal background' contesting election has been

engaging the attention of the Election Commission of India for quite

some time; even Parliament in the debates on 50 years of

independence and the resolution passed in its special Session in

August, 1997 had shown a great concern about the increasing

criminalisation of politics; it is widely believed that there is criminal

nexus between the political parties and anti-social elements which is

leading to criminalisation of politics; the criminals themselves are

now joining election fray and often even getting elected in the

process. Some of them have even adorned ministerial berths and,

thus, law breakers have become law makers. The Commission has

suggested that candidate should be required to furnish information in

respect of

(a) all cases in which he has been convicted of any

offence and punished with any kind of

imprisonment or amount of fine, and whether any

appeal or application for review is pending in

respect of any such cases of conviction, and

(b) all pending cases in which he is involved before

any court of law in any offence, punishable with

imprisonment for two years or more, and where

the appropriate court has on prima facie

satisfaction framed the charges against him for

proceeding with the trial.

For declaration of assets, it has been suggested by the Election

Commission that candidate should be asked to disclose his assets, all

immovable and movable properties which would include cash, bank

balances, fixed deposits and other savings such as shares, stocks,

debentures etc. Candidate also should be directed to disclose for

voters' information, not only his assets but his liabilities like over-

dues to public financial institutions and government dues and charges

on his/her properties.

For other directions issued by the High Court, it has been

pointed out that it is for the political parties to project the capacity and

capability of a candidate and that directions issued by the High Court

are required to be set aside. Finally, the Election Commission has

suggested as under:

"I. Each candidate for election to Parliament or a State

Legislature should submit, along with his nomination

paper, a duly sworn affidavit, for the truth of which he is

liable, as a necessary part of his nomination paper,

furnishing therein, information on the following aspects

in relation to his candidature:

(i) whether the candidate is convicted of any offence

in any case in the past, and punished with

imprisonment or fine; if so, the details thereof,

together with the details of any pending appeals or

applications for revision in any such cases of

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conviction;

(ii) whether the candidate is accused in any pending

case, of any offence punishable with imprisonment

for two years or more, and in which charges have

been framed against him by the competent court of

law, if so, the details thereof, together with the

details of any pending appeals or applications for

revision in respect of the charges framed in any

such cases;

(iii) whether the candidate is an income tax and/or

wealth tax assessee and has been paying his tax(es)

and filing his returns regularly, wherever he is

liable, and if so, the financial year for which the

last income tax/wealth tax return has been filed;

(iv) the liabilities of the candidate, his/her spouse and

minor children; that is to say, over-dues to any

public financial institutions, any government dues,

and charges on his/her properties;

(v) the educational qualifications of the candidate.

II. The information by each candidate in respect of all

the foregoing aspects shall be furnished by the candidate

in a format to be prescribed by the Election Commission

and shall be supported by a duly sworn affidavit, making

him responsible for the correctness of the information so

furnished and liable for any false statement.

III. The information so furnished by each candidate in

the prescribed format and supported by a duly sworn

affidavit shall be disseminated by the Election

Commission, through the respective Returning Officers,

by displaying the same on the notice board of the

Returning Officer and making the copies thereof

available freely and liberally to all other contesting

candidates and the representatives of the print and

electronic media.

If any rival candidate furnishes information to the

contrary, by means of a duly sworn affidavit, then such

affidavit of the rival candidate may also be disseminated

alongwith the affidavit of the candidate concerned.

The Court may lay down that it would be

mandatory for each candidate for election to Parliament

or State Legislature, to file along with his nomination

paper, the aforesaid duly sworn affidavit, furnishing

therein the information on the aspects detailed above and

that the nomination paper of such a candidate who fails

or refuges to file the required affidavit or files an

incomplete affidavit shall be deemed to be an incomplete

nomination paper within the meaning of section 33(1) of

the Representation of the People Act, 1951 and shall

suffer consequences according to law.

The aforesaid suggestions made by the Election Commission

would certainly mean that except certain modifications, Election

Commission virtually supports the directions issued by the High Court

and that candidates must be directed to furnish necessary information

with regard to pending criminal cases as well as assets and

educational qualification.

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Mr. Rajinder Sachhar, learned senior counsel appearing on

behalf of the petitioners relied upon the decision rendered by this

Court in Vineet Narain and Others v. Union of India and Another

[(1998) 1 SCC 226] and submitted that considering the widespread

illiteracy of the voters, and at the same time their overall culture and

character, if they are well-informed about the candidates contesting

election as M.P. or M.L.A., they would be in a position to decide

independantly to cast their votes in favour of a candidate who,

according to them, is much more efficient to discharge his functions

as M.P. or M.L.A. He, therefore, submitted that presuming that the

High Court has no jurisdiction to pass orders to fill in the gaps, this

Court can do so by exercising its powers under Article 142 which

have the effect of law.

In Vineet Narain's case (Supra), this Court dealt with the writ

petitions under Article 32 of the Constitution of India brought in

public interest wherein allegation was against the Central Bureau of

Investigation (CBI) of inertia in matters where accusation made was

against high dignitaries. Primary question considered waswhether

it was within the domain of judicial review and it could be an

effective instrument for activating the investigating process which is

under the control of the executive? While discussing the powers of

this Court, it was observed:

"The powers conferred on this Court by the

Constitution are ample to remedy this defect and to

ensure enforcement of the concept of equality. There are

ample powers conferred by Article 32 read with Article

142 to make orders which have the effect of law by virtue

of Article 141 and there is mandate to all authorities to

act in aid of the orders of this Court as provided in

Article 144 of the Constitution. In a catena of decisions

of this Court, this power has been recognised and

exercised, if need be, by issuing necessary directions to

fill the vacuum till such time the legislature steps in to

cover the gap or the executive discharges its role."

[Emphasis supplied]

In paragraph 51, the Court pointed out previous precedents for

exercise of such power:

"In exercise of the powers of this Court under

Article 32 read with Article 142, guidelines and

directions have been issued in a large number of cases

and a brief reference to a few of them is sufficient. In

Erach Sam Kanga v. Union of India [W.P. No. 2632 of

1978 decided on 20.3.1979] the Constitution Bench laid

down certain guidelines relating to the Emigration Act.

In Lakshmi Kant Pandey v. Union of India [(1984) 2

SCC 244] (In re, Foreign Adoption), guidelines for

adoption of minor children by foreigners were laid down.

Similarly in State of W.B. v. Sampat Lal [(1985) 1 SCC

317], K. Veeraswami v. Union of India [(1991) 3 SCC

655] Union Carbide Corpn. v. Union of India [(1991) 4

SCC 584, Delhi Judicial Service Association v. State of

Gujarat (Nadiad Case) [(1991) 4 SCC 406], Delhi

Development Authority v. Skipper Construction Co. (P)

Ltd. [(1996) 4 SCC 622] and Dinesh Trivedi, M.P. v.

Union of India [(1997) 4 SCC 306] guidelines were laid

down having the effect of law, requiring rigid

compliance. In Supreme Court Advocates-on-Record

Association v. Union of India (IInd Judges case)

[(1993) 4 SCC 441], a nine-Judge Bench laid down

guidelines and norms for the appointment and transfer of

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Judges which are being rigidly followed in the matter of

appointments of High Court and Supreme Court Judges

and transfer of High Court Judges. More recently in

Vishaka v. State of Rajasthan [(1997) 6 SCC 241]

elaborate guidelines have been laid down for observance

in workplaces relating to sexual harassment of working

women. In Vishaka (supra) it was said (SCC pp. 249-50,

para 11)

"11. The obligation of this Court under Article 32

of the Constitution for the enforcement of these

fundamental rights in the absence of legislation must be

viewed along with the role of judiciary envisaged in the

Beijing Statement of Principles of the Independence of

Judiciary in the LAWASIA region. These principles

were accepted by the Chief Justices of Asia and the

Pacific at Beijing in 1995 (As amended at Manila, 28th

August, 1997) as those representing the minimum

standards necessary to be observed in order to maintain

the independence and effective functioning of the

judiciary. The objectives of the judiciary mentioned in

the Beijing Statement are:

"Objectives of the Judiciary:

10. The objectives and functions of the Judiciary

include the following:

(a) to ensure that all persons are able to live

securely under the rule of law;

(b) to promote, within the proper limits of the

judicial function, the observance and the

attainment of human rights; and

(c) to administer the law impartially among

persons and between persons and the State."

Thus, an exercise of this kind by the court is now a well-

settled practice which has taken firm roots in our

constitutional jurisprudence. This exercise is essential to

fill the void in the absence of suitable legislation to cover

the field."

Ms. Kamini Jaiswal, learned counsel appearing on behalf of

respondents in support of the decision rendered by the High Court

referred to the decision in Kihoto Hollohan v. Zachillhu and Others

[1992 Supp (2) SCC 651] wherein while considering the validity of

the Tenth Schedule of the Constitution, the Court observed

"democracy is a part of the basic structure of our Constitution; and

rule of law, and free and fair elections are basic features of

democracy. One of the postulates of free and fair elections is

provisions for resolution of election disputes as also adjudication of

disputes relating to subsequent dis-qualifications by an independant

authority". She, therefore, contended that for free and fair elections

and for survival of democracy, entire history, background and the

antecedents of the candidate are required to be disclosed to the voters

so that they can judiciously decide in whose favour they should vote;

otherwise, there would not be true reflection of electoral mandate. For

interpreting Article 324, she submitted that this provision outlines

broad and general principles giving power to the Election

Commission and it should be interpreted in a broad perspective as

held by this Court in various decisions.

In these matters, questions requiring consideration are

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1. Whether Election Commission is empowered to issue

directions as ordered by the High Court?

2. Whether a voter a citizen of this country has right to

get relevant information, such as, assets, qualification

and involvement in offence for being educated and

informed for judging the suitability of a candidate

contesting election as MP or MLA?

For deciding the aforesaid questions, we would proceed on the

following accepted legal position.

At the outset, we would say that it is not possible for this Court

to give any directions for amending the Act or the statutory Rules. It is

for the Parliament to amend the Act and the Rules. It is also

established law that no direction can be given, which would be

contrary to the Act and the Rules.

However, it is equally settled that in case when the Act or Rules

are silent on a particular subject and the Authority implementing the

same has constitutional or statutory power to implement it, the Court

can necessarily issue directions or orders on the said subject to fill the

vacuum or void till the suitable law is enacted.

Further, it is to be stated that (a) one of the basic structure of

our Constitution is 'republican and democratic form of government';

(b) the election to the House of People and the Legislative Assembly

is on the basis of adults suffrage, that is to say, every person who is

citizen of India and who is not less than 18 years of age on such date

as may be fixed in that behalf by or under any Law made by the

appropriate Legislature and is not otherwise disqualified under the

Constitution or any law on the ground of non-residence, unsoundness

of mind, crime or corrupt or illegal practice, shall be entitled to be

registered as a voter at any such election (Article 326); and (c) holding

of any asset (immovable or movable) or any educational qualification

is not the eligibility criteria to contest election; and (d) Under Article

324, the superintendence, direction and control of the 'conduct of all

elections' to Parliament and to the Legislature of every State vests in

Election Commission. The phrase 'conduct of elections' is held to be

of wide amplitude which would include power to make all necessary

provisions for conducting free and fair elections.

Question No.1

Whether Election Commission is empowered to issue

directions as ordered by the High Court?

For health of democracy and fair election, whether the

disclosure of assets by a candidate, his/her qualification and

particulars regarding involvement in criminal cases are necessary for

informing voters, may be illiterate, so that they can decide

intelligently, whom to vote? In our opinion, the decision of even

illiterate voter, if properly educated and informed about the contesting

candidate, would be based on his own relevant criteria of selecting a

candidate. In democracy, periodical elections are conducted for

having efficient governance for the country and for the benefit of

citizensvoters. In a democratic form of government, voters are of

utmost importance. They have right to elect or re-elect on the basis of

the antecedents and past performance of the candidate. He has choice

of deciding whether holding of educational qualification or holding of

property is relevant for electing or re-electing a person to be his

representative. Voter has to decide whether he should cast vote in

favour of a candidate who is involved in criminal case. For

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maintaining purity of elections and healthy democracy, voters are

required to be educated and well informed about the contesting

candidates. Such information would include assets held by the

candidate, his qualification including educational qualification and

antecedents of his life including whether he was involved in a

criminal case and if the case is decidedits result, if pending

whether charge is framed or cognizance is taken by the Court? There

is no necessity of suppressing the relevant facts from the voters.

The Constitution Bench of this Court in Mohinder Singh Gill v.

The Chief Election Commissioner, New Delhi [(1978) 1 SCC 405]

while dealing with a contention that Election Commission has no

power to cancel the election and direct re-poll, referred to the

pervasive philosophy of democratic elections which Sir Winston

Churchill vivified in matchless word:

"At the bottom of all tributes paid to democracy is the

little man, walking into a little booth, with a little pencil,

making a little cross on a little bit of paperno amount of

rhetoric or voluminous discussion can possibly diminish the

overwhelming importance of the point.

If we may add, the little, large Indian shall not be

hijacked from the course of free and fair elections by

mob muscle methods, or subtle perversion of discretion

by men 'dressed in little, brief authority'. For 'be you

ever so high, the law is above you'.

The moral may be stated with telling terseness in

the words of William Pitt: 'Where laws end, tyranny

begins'. Embracing both these mandates and

emphasizing their combined effect is the elemental law

and politics of Power best expressed by Benjamin

Disraeli [Vivian Grey, BK VI Ch 7]:

I repeat . . . that all power is a trust that we are

accountable for its exercise that, from the people and for

the people, all springs, and all must exist."

Further, the Court in (para 23) observed thus:

"Democracy is government by the people. It is a

continual participative operation, not a cataclysmic,

periodic exercise. The little man, in his multitude,

marking his vote at the poll does a social audit of his

Parliament plus political choice of this proxy. Although

the full flower of participative Government rarely

blossoms, the minimum credential of popular

government is appeal to the people after every term for a

renewal of confidence. So we have adult franchise and

general elections as constitutional compulsions. 'The

right of election is the very essence of the constitution'

(Junius). It needs little argument to hold that the heart of

the Parliamentary system is free and fair elections

periodically held, based on adult franchise, although

social and economic democracy may demand much

more."

Thereafter, the Court dealt with the scope of Article 324 and

observed (in para 39) thus:

".Article 324, in our view, operates in areas left

unoccupied by legislation and the words

'superintendence, direction and control, as well as

'conduct of all elections', are the broadest terms.."

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The Court further held:

"Our conclusion on this limb of the contention is

that Article 324 is wide enough to supplement the powers

under the Act, as here, but subject to the several

conditions on its exercise we have set out."

The Court also held (in para 77) thus:

"We have been told that wherever the Parliament

has intended a hearing it has said so in the Act and the

rules and inferentially where it has not specificated it is

otiose. There is no such sequitur. The silence of a

statute has no exclusionary effect except where it flows

from necessary implication. Article 324 vests a wide

power and where some direct consequence on candidate

emanates from its exercise we must read this functional

obligation."

In concluding portion of paragraph 92, the Court inter alia

observed thus:

"1(b) Election, in this context, has a very wide

connotation commencing from the Presidential

notification calling upon the electorate to elect and

culminating in the final declaration of the returned

candidate.

2(a) The Constitution contemplates a free and fair

election and vests comprehensive responsibilities

of superintendence, direction and control of the

conduct of elections in the Election Commission.

This responsibility may cover powers, duties and

functions of many sorts, administrative or other,

depending on the circumstances.

(b) Two limitations at least are laid on its plenary

character in the exercise thereof. Firstly, when

Parliament or any State Legislature has made valid

law relating to or in connection with elections, the

Commission, shall act in conformity with, not in

violation of, such provisions but where such law is

silent Article 324 is a reservoir of power to act for

the avowed purpose of, not divorced from, pushing

forward a free and fair election with expedition"

In concurring judgment, Goswami, J. with regard to Article 324

observed (in para 113) thus:

".Since the conduct of all elections to the

various legislative bodies and to the offices of the

President and the Vice-President is vested under Article

324 (1) in the Election Commission, the framers of the

Constitution took care to leaving scope for exercise of

residuary power by the Commission, in its own right, as a

creature of the Constitution, in the infinite variety of

situations that may emerge from time to time in such a

large democracy as ours. Every contingency could not

be foreseen, or anticipated with precision. That is why

there is no hedging in Article 324. The Commission may

be required to cope with some situation which may not

be provided for in the enacted laws and the rules."

[Emphasis supplied]

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The aforesaid decision of the Constitution Bench unreservedly

lays down that in democracy the little man voter has overwhelming

importance on the point and the little-large Indian (voter) should not

be hijacked from the course of free and fair elections by subtle

perversion of discretion of casting votes. In a continual participative

operation of periodical election, the voter does a social audit of his

candidate and for such audit he must be well informed about the past

of his candidate. Further, Article 324 operates in areas left

unoccupied by legislation and the words 'superintendence, direction

and control' as well as 'conduct of all elections' are the broadest

terms. The silence of statute has no exclusionary effect except where

it flows from necessary implication. Therefore, in our view, it would

be difficult to accept the contention raised by Mr. Salve, learned

Solicitor General and Mr. Ashwini Kumar, learned senior counsel

appearing on behalf of Intervenor that if there is no provision in the

Act or the Rules, the High Court ought not to have issued such

directions to the Election Commission. It is settled that the power of

the Commission is plenary in character in exercise thereof. In a

statutory provisions or rules, it is known that every contingency could

not be foreseen or anticipated with precision, therefore, Commission

can cope with situation where the field is unoccupied by issuing

necessary orders.

Further, this Court in Kanhiya Lal Omar v. R.K. Trivedi and

others [(1985) 4 SCC 628] dealt with the Constitutional validity of the

Election Symbols (Reservation and Allotment) Order, 1968 which

was issued by the Election Commission in its plenary exercise of

power under Article 324 of the Constitution read with Rules 5 and 10

of the Conduct of Election Rules, 1961. The challenge was on the

ground that Symbols Order which is legislative in character could not

be issued by the Commission because the Commission is not entrusted

by law the power to issue such an order regarding the specification,

reservation and allotment of symbol that may be chosen by the

candidates at elections in parliamentary and Assembly constituencies.

It was urged that Article 324 of the Constitution which vests the

power of superintendence, direction and control of all elections to

Parliament and to the Legislature of a State in the Commission cannot

be construed as conferring the power on the Commission to issue the

Symbols. The Court negatived the said contention and pertinently

observed that "the word 'elections' in Article 324 is used in a wide

sense so as to include the entire process of election which consists of

several stages and it embraces many steps, some of which may have

an important bearing on the result of the process. India is a country

which consists of millions of voters. Although they are quite

conscious of their duties politically, unfortunately, a large percentage

of them are still illiterate." The Court in paragraph 16 held:

"16. Even if for any reason, it is held that any of

the provisions contained in the Symbols Order are not

traceable to the Act or the Rules, the power of the

Commission under Article 324 (1) of the Constitution

which is plenary in character can encompass all such

provisions. Article 324 of the Constitution operates in

areas left unoccupied by legislation and the words

'superintendence', 'direction' and 'control' as well as

"conduct of all elections" are the broadest terms which

would include the power to make all such provisions.

{See Mohinder Singh Gill v. Chief Election

Commissioner, New Delhi [(1978) 1 SCC 405] and A.C.

Jose v. Sivan Pillai [(1984) 2 SCC 656]}.

The Court further observed:

"..While construing the expression

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"superintendence, direction and control" in Article 324

(1), one has to remember that every norm which lays

down a rule of conduct cannot possibly be elevated to the

position of legislation or delegated legislation. There are

some authorities or persons in certain grey areas who

may be sources of rules of conduct and who at the same

time cannot be equated to authorities or persons who can

make law, in the strict sense in which it is understood in

jurisprudence. A direction may mean an order issued to a

particular individual or a precept which many may have

to follow. It may be a specific or a general order. One

has also to remember that the source of power in this case

is the Constitution, the highest law of the land, which is

the repository and source of all legal powers and any

power granted by the Constitution for a specific purpose

should be construed liberally so that the object for which

the power is granted is effectively achieved. Viewed

from this angle it cannot be said that any of the

provisions of the Symbols Order suffers from want of

authority on the part of the Commission, which has

issued it."

Thereafter, this Court in Common Cause (A Registered

Society) v. Union of India and others [(1996) 2 SCC 752] dealt with

election expenses incurred by political parties and submission of

return and the scope of Article 324 of the Constitution, where it was

contended that cumulative effect of the three statutory provisions,

namely, Section 293-A of the Companies Act, 1956, Section 13-A of

the Income Tax Act, 1961 and Section 77 of the Representation of the

People Act, 1951, is to bring transparency in the election funding and

people of India must know the source of expenditure incurred by the

political parties and by the candidates in the process of election. It

was contended that election in the country are fought with the help of

money power which is gathered from black sources and once elected

to power, it becomes easy to collect tons of black money, which is

used for retaining power and for re-election and that this vicious circle

has totally polluted the basic democracy in the country. The Court

held that purity of election is fundamental to democracy and the

Commission can ask the candidates about the expenditure incurred by

the candidates and by a political party and for this purpose. The Court

also held:

"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."

Thereafter, the Court observed that under Article 324, the

Commission can issue suitable directions to maintain the purity of

election and in particular to bring transparency in the process of

election. The Court also held (paragraph 26) thus:

"Superintendence and control over the conduct of

election by the Election Commission include the scrutiny

of all expenses incurred by a political party, a candidate

or any other association or body of persons or by any

individual in the course of the election. The expression

"Conduct of election" is wide enough to include in its

sweep, the power to issue directionsin the process of

the conduct of an electionto the effect that the political

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parties shall submit to the Election Commission, for its

scrutiny, the details of the expenditure incurred or

authorised by the parties in connection with the election

of their respective candidates."

The Court further observed that Constitution has made

comprehensive provision under Article 324 to take care of surprise

situations and it operates in areas left unoccupied by legislation.

Question No.2

Right to know about the candidates contesting elections.

Now we would refer to various decisions of this Court dealing

with citizens' right to know which is derived from the concept of

'freedom of speech and expression'. The people of the country have a

right to know every public act, everything that is done in a public way

by the public functionaries. MPs or MLAs are undoubtedly public

functionaries. Public education is essential for functioning of the

process of popular government and to assist the discovery of truth and

strengthening the capacity of an individual in participating in decision

making process. The decision making process of a voter would

include his right to know about public functionaries who are required

to be elected by him.

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."

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."

The Court further referred (in para 35) the 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 processses of popular government, is

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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-fulfilment, (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."

From the afore-quoted paragraph, it can be deduced that the

members of a democratic society should be sufficiently informed so

that they may influence intelligently the decisions which may affect

themselves and this would include their decision of casting votes in

favour of a particular candidate. If there is a disclosure by a candidate

as sought for then it would strengthen the voters in taking appropriate

decision of casting their votes.

In Secretary, Ministry of Information and Broadcasting,

Government of India and Others v. Cricket Association of Bengal

and Others [(1995) 2 SCC 161], this Court considered the question of

right to telecast sports event and after considering various decisions,

the Court referred to Article 10 of the European Convention on

Human Rights which inter alia states as follows (para 36):

"10.1. Everyone has the right to freedom of

expression. This right shall include freedom to hold

opinions and to receive and impart information and

ideas without interference by public authority and

regardless of frontiers."

Thereafter, the Court summarised the law on the freedom of

speech and expression under Article 19(1)(a) as restricted by Article

19(2) thus: -

"The freedom of speech and expression includes

right to acquire information and to disseminate it.

Freedom of speech and expression is necessary, for self-

fulfilment. It enables people to contribute to debate on

social and moral issues. It is the best way to find a truest

model of anything, since it is only through it that the

widest possible range of ideas can circulate. It is the only

vehicle of political discourse so essential to democracy.

Equally important is the role it plays in facilitating

artistic and scholarly endeavours of all sorts.."

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The Court dealt with the right of telecast and [in paragraph 75]

held thus: -

"In a team event such as cricket, football, hockey

etc., there is both individual and collective expression. It

may be true that what is protected by Article 19(1)(a) is

an expression of thought and feeling and not of the

physical or intellectual prowess or skill. It is also true

that a person desiring to telecast sports events when he is

not himself a participant in the game, does not seek to

exercise his right of self-expression. However, the right

to freedom of speech and expression also includes the

right to educate, to inform and to entertain and also the

right to be educated, informed and entertained. The

former is the right of the telecaster and the latter that of

the viewers. The right to telecast sporting event will

therefore also include the right to educate and inform the

present and the prospective sportsmen interested in the

particular game and also to inform and entertain the

lovers of the game. Hence, when a telecaster desires to

telecast a sporting event, it is incorrect to say that the

free-speech element is absent from his right."

The Court thereafter (in paragraph 82) held:

"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."

The Court also observed"a successful democracy posits an

'aware' citizenry."

If right to telecast and right to view to sport games and right to

impart such information is considered to be part and parcel of Article

19(1)(a), we fail to understand why the right of a citizen/voter a

little man to know about the antecedents of his candidate cannot be

held to be a fundamental right under Article 19(1)(a)? In our view,

democracy cannot survive without free and fair election, without free

and fairly informed voters. Votes cast by uninformed voters in favour

of X or Y candidate would be meaningless. As stated in the aforesaid

passage, one-sided information, disinformation, misinformation and

non-information all equally create an uninformed citizenry which

makes democracy a farce. Therefore, casting of a vote by

misinformed and non-informed voter or a voter having one-sided

information only is bound to affect the democracy seriously. Freedom

of speech and expression includes right to impart and receive

information which includes freedom to hold opinions. Entertainment

is implied in freedom of 'speech and expression' and there is no

reason to hold that freedom of speech and expression would not cover

right to get material information with regard to a candidate who is

contesting election for a post which is of utmost importance in the

democracy.

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In Dinesh Trivedi, M.P. and Others v. Union of India and

Others [(1997) 4 SCC 306], the Court dealt with a petition for

disclosure of a report submitted by a Committee established by the

Union of India on 9th July 1993 which was chaired by erstwhile

Home Secretary Shri N.N. Vohra which subsequently came to be

popularly known as Vohra Committee. During July 1995, a known

political activist Naina Sahni was murdered and one of the persons

arrested happened to be an active politician who had held important

political posts and newspaper report published a series of articles on

the criminalisation of politics within the country and the growing links

between political leaders and mafia members. The attention of the

masses was drawn towards the existence of the Vohra Committee

Report. It was suspected that the contents of the Report were such

that the Union Government was reluctant to make it public.

In the said case, the Court dealt with citizen's rights to freedom

of information and observed "in modern constitutional democracies,

it is axiomatic that citizens have a right to know about the affairs of

the Government which, having been elected by them, seek to

formulate sound policies of governance aimed at their welfare". The

Court also observed "democracy expects openness and openness is

concomitant of a free society and the sunlight is a best disinfectant".

Mr. Ashwini Kumar, learned senior counsel appearing on

behalf of the intervenor submitted that the aforesaid observations are

with regard to citizen's right to know about the affairs of the

Government, but this would not mean that citizens have a right to

know the personal affairs of MPs or MLAs. In our view, this

submission is totally misconceived. There is no question of knowing

personal affairs of MPs or MLAs. The limited information is

whether the person who is contesting election is involved in any

criminal case and if involved what is the result? Further there are

widespread allegations of corruption against the persons holding post

and power. In such a situation, question is not of knowing personal

affairs but to have openness in democracy for attempting to cure

cancerous growth of corruption by few rays of light. Hence, citizens

who elect MPs or MLAs are entitled to know that their representative

has not misconducted himself in collecting wealth after being elected.

This information could be easily gathered only if prior to election, the

assets of such person are disclosed. For this purpose, learned counsel

Mr. Murlidhar referred to the practice followed in the United States

and the form which is required to be filled in by a candidate for Senate

which provides that such candidate is required to disclose all his

assets and that of his spouse and dependants. The form is required to

be re-filled every year. Penalties are also prescribed which include

removal from ballot.

Learned counsel Mrs. Kamini Jaiswal referred to All India

Service (Conduct) Rules, 1968 and pointed out that a member of All

India Service is required to disclose his/her assets including that of

spouse and the dependant children. She referred to Rule 16 of the said

Rules, which provides for declaration of movable, immovable and

valuable property by a person who becomes Member of the Service.

Relevant part of Rule 16 is as under:

"16. (1) Every person shall, where such person is

a member of the Service at the commencement of these

rules, before such date after such commencement as may

be specified by the Government in this behalf, or, where

such person becomes a member of the Service after

commencement, on his first appointment to the Service

submits a return of his assets and liabilities in such form

as may be prescribed by the Government giving the full

particulars regarding: -

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(a) the immovable property owned by him, or

inherited or acquired by him or held by him on

lease or mortgage, either in his own name or in

the name of any member of his family or in the

name of any other person;

(b) shares, debentures, postal Cumulative Time

Deposits and cash including bank deposits

inherited by him or similarly owned, acquired

or held by him;

(c) other movable property inherited by him or

similarly owned, acquired or held by him; and

(d) debts and other liabilities incurred by him

directly or indirectly"

Such officer is also required to submit an annual return giving

full particulars regarding the immovable and movable property

inherited by him or owned or acquired or held by him on lease or

mortgage either in his own name or in the name of any member of his

family or in the name of any other person.

It is also submitted that even the Gazetted Officers in all

government services are required to disclose their assets and thereafter

to furnish details of any acquisition of property annually. In our view,

it is rightly submitted that in a democratic form of government, MP or

MLA is having higher status and duty to the public. In P.V.

Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626], the Court

inter alia considered whether Member of Parliament is a public

servant? The Court [in para 162] held thus: -

" public servant is "any person who holds an

office by virtue of which he is authorised or required to

perform any public duty". Not only, therefore, must the

person hold an office but he must be authorised or

required by virtue of that office to perform a public duty.

Public duty is defined by Section 2(b) of the said Act to

mean "a duty in the discharge of which the State, the

public or that community at large has an interest". In a

democratic form of government it is the Member of

Parliament or a State Legislature who represents the

people of his constituency in the highest lawmaking

bodies at the Centre and the State respectively. Not only

is he the representative of the people in the process of

making the laws that will regulate their society, he is

their representative in deciding how the funds of the

Centre and the State shall be spent and in exercising

control over the executive. It is difficult to conceive of a

duty more public than this or of a duty in which the State,

the public and the community at large would have greater

interest."

The aforesaid underlined portion highlights the important status

of MP or State Legislature.

Finally, in our view this Court would have ample power to

direct the Commission to fill the void, in absence of suitable

legislation, covering the field and the voters are required to be well-

informed and educated about contesting candidates so that they can

elect proper candidate by their own assessment. It is the duty of the

executive to fill the vacuum by executive orders because its field is

coterminous with that of the legislature, and where there is inaction by

the executive, for whatever reason, the judiciary must step in, in

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exercise of its constitutional obligations to provide a solution till such

time the legislature acts to perform its role by enacting proper

legislation to cover the field. The adverse impact of lack of probity in

public life leading to a high degree of corruption is manifold.

Therefore, if the candidate is directed to declare his/her spouse's and

dependants' assetsimmovable, moveable and valuable articlesit

would have its own effect. This Court in Vishaka v. State of

Rajasthan [(1997) 6 SCC 241] dealt with incident of sexual

harassment of a woman at work place which resulted in violation of

fundamental right of gender equality and the right to life and liberty

and laid down that in absence of legislation, it must be viewed along

with the role of judiciary envisaged in the Beijing Statement of

Principles of independence of Judiciary in the LAWASIA region. The

decision has laid down the guidelines and prescribed the norms to be

strictly observed in all work places until suitable legislation is enacted

to occupy the field. In the present case also, there is no legislation or

rules providing for giving necessary information to the voters. As

stated earlier, this case was relied upon in Vineet Narain's case

(supra) where the Court has issued necessary guidelines to the CBI

and the Central Vigilance Commission (CVC) as there was no

legislation covering the said field to ensure proper implementation of

rule of law.

To sum up the legal and constitutional position which emerges

from the aforesaid discussion, it can be stated that:

1. The jurisdiction of the Election Commission is wide enough to

include all powers necessary for smooth conduct of elections

and the word 'elections' is used in a wide sense to include the

entire process of election which consists of several stages and

embraces many steps.

2. The limitation on plenary character of power is when the

Parliament or State Legislature has made a valid law relating to

or in connection with elections, the Commission is required to

act in conformity with the said provisions. In case where law is

silent, Article 324 is a reservoir of power to act for the avowed

purpose of having free and fair election. Constitution has taken

care of leaving scope for exercise of residuary power by the

Commission in its own right as a creature of the Constitution in

the infinite variety of situations that may emerge from time to

time in a large democracy, as every contingency could not be

foreseen or anticipated by the enacted laws or the rules. By

issuing necessary directions, Commission can fill the vacuum

till there is legislation on the subject. In Kanhiya Lal Omar's

case, the Court construed the expressions "superintendence,

direction and control" in Article 324(1) and held that a direction

may mean an order issued to a particular individual or a precept

which may have to follow and it may be a specific or a general

order and such phrase should be construed liberally

empowering the election commission to issue such orders.

3. The word "elections" includes the entire process of election

which consists of several stages and it embraces many steps,

some of which may have an important bearing on the process of

choosing a candidate. Fair election contemplates disclosure by

the candidate of his past including the assets held by him so as

to give a proper choice to the candidate according to his

thinking and opinion. As stated earlier, in Common Cause case

(supra), the Court dealt with a contention that elections in the

country are fought with the help of money power which is

gathered from black sources and once elected to power, it

becomes easy to collect tons of black money, which is used for

retaining power and for re-election. If on affidavit a candidate

is required to disclose the assets held by him at the time of

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election, voter can decide whether he could be re-elected even

in case where he has collected tons of money.

Presuming, as contended by the learned senior counsel Mr.

Ashwini Kumar, that this condition may not be much effective for

breaking a vicious circle which has polluted the basic democracy in

the country as the amount would be unaccounted. May be true, still

this would have its own effect as a step-in-aid and voters may not

elect law-breakers as law-makers and some flowers of democracy

may blossom.

4. To maintain the purity of elections and in particular to bring

transparency in the process of election, the Commission can ask

the candidates about the expenditure incurred by the political

parties and this transparency in the process of election would

include transparency of a candidate who seeks election or re-

election. In a democracy, the electoral process has a strategic

role. The little man of this country would have basic

elementary right to know full particulars of a candidate who is

to represent him in Parliament where laws to bind his liberty

and property may be enacted.

5. The right to get information in democracy is recognised all

throughout and it is natural right flowing from the concept of

democracy. At this stage, we would refer to Article 19(1) and

(2) of the International Covenant of Civil and Political Rights

which is as under: -

"(1) Everyone shall have the right to hold opinions

without interference.

(2) Everyone shall have the right to freedom of

expression; this right shall include freedom to

seek, receive and impart information and ideas of

all kinds, regardless of frontiers, either orally, in

writing or in print, in the form of art, or through

any other media of his choice."

6. Cumulative reading of plethora of decisions of this Court as

referred to, it is clear that if the field meant for legislature and

executive is left unoccupied detrimental to the public interest,

this Court would have ample jurisdiction under Article 32 read

with Articles 141 and 142 of the Constitution to issue necessary

directions to the Executive to subserve public interest.

7. Under our Constitution, Article 19(1)(a) provides for freedom

of speech and expression. Voters' speech or expression in case

of election would include casting of votes, that is to say, voter

speaks out or expresses by casting vote. For this purpose,

information about the candidate to be selected is must. Voter's

(little mancitizen's) right to know antecedents including

criminal past of his candidate contesting election for MP or

MLA is much more fundamental and basic for survival of

democracy. The little man may think over before making

his choice of electing law breakers as law makers.

In this view of the matter, it cannot be said that the directions

issued by the High Court are unjustified or beyond its jurisdiction.

However, considering the submissions made by the learned counsel

for the parties at the time of hearing of this matter, the said directions

are modified as stated below.

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

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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 balances

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.

It is to be stated that the Election Commission has from time to

time issued instructions/orders to meet with the situation where the

field is unoccupied by the legislation. Hence, the norms and

modalities to carry out and give effect to the aforesaid directions

should be drawn up properly by the Election Commission as early as

possible and in any case within two months.

In the result, Civil Appeal No.7178 of 2001 is partly allowed

and the directions issued by the High Court are modified as stated

above. Appeal stands disposed of accordingly.

Writ Petition (C) No. 294 of 2001 is allowed to the aforesaid

extent.

There shall be no order as to costs.

........J.

(M.B. SHAH)

........J.

(BISHESHWAR PRASAD SINGH)

........J.

(H.K. SEMA)

May 2, 2002.