PUCL Bulletin, June 2002

Landmark Supreme Court Judgement
For cleaner elections

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A petition was filed in the Supreme Court of India in the name of People's Union for Civil Liberties and Dr. Y. P. Chhibbar, and another making the Union of India and the Election Commission of India respondent. The petition sought to strengthen people's faith in their elected representatives.

Synopsis
This petition, which has been filed in public interest, is seeking to strengthen peoples' faith in their elected representatives, which could ensure protection of their legal and fundamental rights in a democracy governed by the Rule of Law. The reason for filing this petition has arisen because of the corruption not only affecting the social fabric of the country but reflecting badly on the legal and Fundamental Rights of the people whose voice ultimately translate itself in law through their elected representative.

These elected representatives on oath discharge the Constitutional duties and therefore, they must even at the threshold, at the time of filing of nomination papers should declare their assets in public. As held in Dinesh Trivedi vs. UOI: (1997) 4 SCC 306, the citizens have right to know under Article 21 of the Constitution the affairs of the Government elected by them and that it seeks to formulate policies aimed at their welfare. The citizens have a right to know that the MPs/ MLAs/ Ministers they have elected discharge their duties as per the Constitution and the law and are not amassing wealth/assets for their personal benefit. This Petition therefore seeks to enforce the rights of the citizen to know that there is transparency and honesty among those they have elected for the governance. It is also submitted that in absence of transparency and honesty among those they have elected for governance, the actions of the Government are bound to injure the people affecting their rights under Articles 14, 19 and 21 of the Constitution.

The Law Commission in its 170th Report has also recommended changes in the Representation of the Peoples Act, 1951 as well as the Rules 1961. In short, it has been recommended that the time of filing of nomination for a seat in the House of the people, the Council of States, the Legislative Assembly or Legislative Council of State the person should file a declaration of all his assets possessed by him/her or by his/her spouse and dependent relations supported by an affidavit and that he/she should also file a declaration as to whether any charge in respect of any offence referred to in Section 8-B has been framed against him/her by any criminal court. In spite of these recommendations no steps have been taken by the legislature to bring any suitable legislation. The petitioners are, therefore, praying that this Hon'ble Court may lay down suitable guidelines under Article 141 of the Constitution as held in the case of Vishaka vs. State of Rajasthan: (1997) 6 SCC 241 as well as in Vineet Narain: (1998) 1 SCC 226.
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Shri K. B. Pandit, a writer and economic analylist intervened in the petition. He mentioned an article he published in 1998 which had highlighted corruption in the country. He maintained that corruption had sullied the country's political system and other institutions. There is no law and order. The foundation of the nation, of the society is threatened because of corruption. He maintained that the situation had not changed. When the elections are fought with unaccounted money the persons elected try to amass black money. Unless the statutory provisions meant to bring transparency in the functioning of democracy are strictly enforced and election functioning made transparent corruption cannot be eliminated.

The Supreme Court had spelt seven principles of public life in Vineet Narain as follows:

"The Seven Principles of Public Life

  • Selflessness
    Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.
  • Integrity
    Holders of public office should not place themselves under any financial or other obligation to outside individuals or organizations that might influence them in the performance of their official duties.
  • Objectivity
    In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
  • Accountability
    Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
  • Openness
    Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
  • Honesty
    Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
  • Leadership
    Holders of public office should promote and support these principles by leadership and example."

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The Law Commission in its report No. 170 had recommended changes in the existing Section 4 of the Representation of People Act 1951, with consequential changes in certain part of conduct of election rules 1961. The companies Act 1956, Section 29 3A, the Income Tax Act 1961 Section 13 A and the Representation of Peoples Act 951, Section 71 indicate that a political party/ even a candidate should maintain accounts and furnish returns. But there is no provision providing for declaration of assets by a candidate.

The petition submitted * * * * so that in order to uphold the democracy, Rule of Law, that the Law making process and preservation and protection of citizens rights under Constitution are secure, it is necessary to know that they are governed by those who are honest and dedicated to the faith put on them by the people in discharging their duties under the Constitution honestly. They should mandatorily declare their assets at the time they file their nomination, and continue to declare their assets every year till they remain as Members of Parliament, MLAs or as Ministers either in Parliament or in State Legislatures. They should, in addition, also declare whether any charge in respect of any offence has been framed against him/her.

That this Hon'ble Court may lay down guidelines in this regard under Article 141 of the Constitution as done in Vishaka case till a suitable legislation is enacted.

Following passage from Vineet Narain may be quoted for the said purpose:
"51. 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, WP 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 Assn. 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 Assn. v. Union of India (1993) 4 SCC 441 (2nd Judges case) a nine Judge Bench laid down guidelines and norms for the appointment and transfer of 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 it was said: SCC pp.249-50, para 11):

"11. The obligation of this Court under Article 32 of the Constitutional 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 the Judiciary in the LAWEASIA region.

Theses principles were accepted by the Chief Justices of Asia and the Pacific at Beijing in 1995(*) (Ass 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 functions, the observance and the attainment of human rights, and
  • c) minister 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.

52. As pointed out in Vishaka 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 even by the executive, for whatever reason, the judiciary must step in, in exercise of its constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.

53. On this basis, we now proceed to give the directions enumerated hereafter for rigid compliance till such time as the legislature steps in to substitute them by proper legislation. These directions made under Article 32 read with Article 142 to implement the rule of law wherein the concept of equality enshrined in Article 14 is embedded, have the force of law under Article 141 and, by virtue of Article 144, it is the duty of all authorities, civil and judicial, in the territory of India to act in aid of this Court. In the issuance of these directions, we have accepted and are reiterating as for as possible the recommendations of made by the IRC."
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PRAYER:
"The Petitioners therefore pray that in the facts and circumstances of the present case this Hon'ble Court may be pleased to:

  • (a) ISSUE a Writ, Order or Direction in the nature of MANDAMUS against Respondents to bring in such measure which provide for declaration of assets by the candidates for the elections and for such mandatory declaration every year during the tenure as an elected representative continues as elected MP/MLA, to uphold the constitutional provisions;
  • (b) ISSUE a Writ, Order or Direction in the nature of MANDAMUS against Respondents to bring in such measures which provide for declaration by the candidates standing for elections whether any charge in respect of any offence has been framed against him/her.
  • (c)FRAME such guidelines under Article 141 of the Constitution by taking guidance from the 170th Report of the Law Commission of India."

 

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JJ MB Shah, Bisheshwar Prasad Singh, and H. K. Singh heard the petition of PUCL along with the petition of the Association for Democratic Reforms. The petition filed for implementation of the above mentioned reports and the Vohra Committee and for a direction for the Election Commission to make mandatory for every candidate to provide information by amending certain prescribed forms the High Court held that the court could not pass any order for amending the act or the rules but it directed the Election Commission to secure to voters information pertaining to each of the candidates contesting elections to the Parliament and to the State Legislatures.

The court observed partly that "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 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 fields. 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' assets immovable, moveable and valuable articles it would have its own effect. This Court is 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 filed. 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 filed to ensure proper implementation of rule of law.

57. 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 wider 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'a case, the Court construed the expression "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 order.
  • 3. The word "election" 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 to retaining power and for re-election. If on affidavit a candidate is required to disclose the assets held by him at the time of election, voter can decide whether he could be reelected 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 reelection. In a democracy, the electoral process has a strategic role. The common 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 recognized 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 inference.
    (2) Everyone shall have the right to freedom of expression; this rights 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 it would be 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. Voters (citizen'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.

58. 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.

59.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 past-if any' whether he is punished with imprisonment or fine?
  • (2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof.
  • (3) The assets (immovable, movable, bank 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.

60. 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 …"

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