The Voter's Right to Know

The sequence

This topic is a sequence, and an answer that gives the cases without the order between them loses the point.

1. The Court directs. In 2002 the High Court, and then the Supreme Court in modified terms, directed the Election Commission to require disclosure on five heads.
2. The Commission implements. It issued orders under article 324 as directed.
3. Parliament undoes it. An Ordinance, followed by the Representation of the People (Third Amendment) Act 2002, inserted section 33A, requiring disclosure on two narrow criminal heads, and section 33B, providing that a candidate is not liable to disclose anything more, "notwithstanding anything contained in any judgment or order of a Court OR any direction, order or instruction issued by the Election Commission".
4. The Court strikes down the undoing. In 2003 section 33B was held unconstitutional, while section 33A was held broadly adequate on the criminal heads.

The direction

Facts. Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112, (2002) 5 SCC 294, decided on 2 May 2002. The respondent association petitioned the Delhi High Court to have the recommendations of the Law Commission's 170th Report implemented and the Conduct of Election Rules 1961 amended, so that a candidate would have to disclose his criminal record and his assets. It relied on the Vohra Committee's finding of an extensive network between criminal gangs and politicians. The High Court gave directions; the Union appealed.

Held. The directions were within jurisdiction and were upheld in modified form. On the right: "Voter's speech or expression in case of election would include casting of votes that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must." The little man "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", and the right to information "is a natural right flowing from the concept of democracy". On jurisdiction: "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 Article 141 and 142 of the Constitution to issue necessary directions to the Executive". The Commission was directed to call for information on affidavit, under article 324, as a necessary part of the nomination paper, on five heads: convictions, acquittals or discharges; pending cases in which a charge has been framed or cognizance taken for an offence punishable with two years or more, within six months of the nomination; the assets of the candidate, spouse and dependants; liabilities, particularly dues to public financial institutions or Government; and educational qualifications.

Why it matters. It creates the right, and it does so by reading a fresh content into article 19(1)(a) rather than by finding a statute. It is also the clearest modern instance of the Court legislating in a vacuum and saying so, which is why the Union's answer took the form it did.

The undoing, undone

Facts. People's Union of Civil Liberties v. Union of India, AIR 2003 SUPREME COURT 2363, 2003 (4) SCC 399, decided on 13 March 2003. Petitions under article 32 challenged sections 33A and 33B of the Representation of the People Act 1951, inserted by the Third Amendment Act of 2002 after an Ordinance. Section 33A required disclosure of two things only: that the candidate is accused in a pending case of an offence punishable with two years or more in which a charge has been framed, and that he has been convicted and sentenced to a year or more. Section 33B provided that he was liable to disclose nothing else, whatever any court or the Commission said.

Held. Section 33B was unconstitutional. The judgment we hold is the separate opinion of Venkatarama Reddi J., who agreed with the conclusion of Shah J. Its summary of conclusions gives the holdings. Securing basic information about candidates "promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a)". The directions in Association for Democratic Reforms were "pro tempore in nature", so once Parliament legislated the Court had to make "an independent assessment" of the adequacy of what it enacted. Section 33B failed that assessment on two grounds: "it imposes blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies", and "the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate". On section 33A the Court held the criminal disclosure "reasonably adequate", save that there was "no good reason for excluding the pending cases in which cognizance has been taken". On assets, section 75A, which required a declaration only after election and only to the Speaker or Chairman, "has failed to effectuate the right to information", and the failure to require it at nomination "resulted in the violation of guarantee under Article 19(1)(a)". On education, the omission "does not, in practical terms, infringe the freedom of expression".

Why it matters. Three lessons. A direction given to fill a vacuum yields to a statute, but the statute is then tested. A statute cannot freeze a fundamental right at whatever content it had on the day of enactment: "The right to information should be allowed to grow rather than being frozen and stagnated." And the Court did not simply reinstate its own five heads; it upheld Parliament on education and corrected it on assets, which is what an independent assessment looks like.

What it does NOT mean

It does not mean every disclosure the Court once ordered is now compulsory. Educational qualification is the example. The Court in 2003 held that its omission from the statute did not infringe article 19(1)(a), so the 2002 direction on that head does not survive the legislation as a constitutional requirement.

It does not mean the right to vote became a fundamental right. PUCL is careful: the right to vote is "a constitutional right but not merely a statutory right", while "freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a)". What article 19(1)(a) protects is the informed expression involved in voting, not the entitlement to be on the roll, and Kihoto Hollohan in [Democracy and Free and Fair Elections] is not displaced.

It does not mean Parliament may never legislate on disclosure. It may, and PUCL upheld most of what it did. What it may not do is enact that nothing further shall ever be asked for by anybody.

A worked example

Asha files her nomination. She discloses a pending case in which a charge has been framed, as section 33A requires. She does not disclose a second case, of the same gravity, in which the court has taken cognizance but has not yet framed a charge, and she does not disclose her spouse's assets. A voter complains to the Election Commission.

Step one, what does the statute require? On its face, section 33A requires disclosure of the charge-framed case only.

Step two, does that end the matter? No. PUCL held there was "no good reason for excluding the pending cases in which cognizance has been taken", and directed the Commission to issue revised instructions to ensure implementation of section 33A "subject to what is laid down in this judgment regarding the cases in which cognizance has been taken".

Step three, what about the spouse's assets? The Commission's orders on assets and liabilities were expressly preserved: PUCL held they "will still hold good and continue to be operative". Non-disclosure is therefore a breach of a subsisting direction under article 324.

Step four, can the Commission reject the nomination for a false statement? Not by the summary route the earlier direction contemplated. PUCL directed that the part of the direction allowing verification by summary enquiry and rejection of a nomination for wrong or suppressed information "should not be enforced".

Step five, when can a court be asked? Not now. The election has begun, so on [Articles 325 to 329] article 329(b) sends the complaint to an election petition after the result.

Quick revision

• Article 19(1)(a) contains the voter's right to know the antecedents of a candidate, because casting a vote is an act of expression.
• ADR (2002): five heads of disclosure directed, by the Commission, under article 324, in a field the legislature had left unoccupied. Jurisdiction from article 32 read with articles 141 and 142.
• The five heads: convictions and acquittals; pending serious cases where charge framed or cognizance taken; assets of candidate, spouse and dependants; liabilities, especially public dues; educational qualifications.
• Parliament's answer: sections 33A and 33B of the Representation of the People Act 1951, by an Ordinance and then the Third Amendment Act 2002. Section 33B: nothing more need be disclosed, whatever a court or the Commission says.
• PUCL (2003): section 33B unconstitutional, for a blanket ban irrespective of future need and because what was substituted was deficient.
• The Court's directions were "pro tempore"; once a law is made the Court assesses the law, it does not simply restore its own directions.
• Section 33A upheld on the criminal heads, save that cases in which cognizance has been taken must also be disclosed.
• Section 75A, assets declared after election to the Speaker, held to violate article 19(1)(a) by not requiring the declaration at nomination.
• Omission of educational qualification held not to infringe article 19(1)(a).

Test yourself

1. On what reasoning does a right to information about candidates come out of article 19(1)(a)?

2. Set out the sequence: what the Court directed, what Parliament enacted, and what the Court then did.

3. Give the two grounds on which section 33B failed the test of constitutionality.

4. PUCL did not simply restore the 2002 directions. Show three respects in which what it held differed from what the Court had directed in 2002.

5. "The right to information should be allowed to grow rather than being frozen and stagnated." What proposition of constitutional law does that sentence carry beyond election law?