PUCL Bulletin, May 2003

Avoid confrontation over the 'right to information' judgement
-- By Rajindar Sachar

An unnecessary confrontational stance is being taken by the Central Government and some political parties on the March 13 Supreme Court Judgement on electoral reforms, in response to the second writ petition filed by the People's Union for Civil Liberties. It is best to get the facts rights.
In 2001, the PUCL filed a writ petition in the Supreme Court on the plea that voters have a fundamental right to know the relevant particulars of candidates standing for elections. It referred to the Election Commission's observation that it is widely believed that there is criminal nexus between the political parties and anti-social elements and that it is leading to criminalisation of politics; that the criminals themselves are now joining the election fray, and some of them have even adorned Ministerial berths and, thus, law-breakers have become law-makers. At present, there are about 700 legislators and 25 members of the Parliament who are having a criminal record.

In this background, the Court, took the view that elections would be a farce if the voters were to remain unaware of the antecedents of their candidates. Though it agreed that such tainted candidates ought to be disqualified from contesting elections, it acted with judicial self-restraint and emphasised that "at the outset, we would say that it is not possible for this court to give any directions for amending the Act or the statutory rules. It is for Parliament to amend the Act and the Rules".

The Court held that the right to information - the right to know antecedents, including the criminal past, or assets of candidates - was a fundamental right under Article 19(1) (a) of the Constitution and that the information was fundamental for survival of democracy. In its Judgement of May 2, 2002, it directed the Election Commission to call for information on affidavit from each candidate seeking election to Parliament or the State Legislature as a necessary part of the nomination papers on: Whether the candidate has been convicted / acquitted / discharged of any criminal offence in the past - if any, whether the candidate was accused in any pending case of any offence punishable with imprisonment for two years or more, and in which charge was framed or cognisance taken by the court of law. If so, the details thereof; the assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of the dependents; liabilities, if any, particularly of any overdues of any public financial institution or Government dues; educational qualifications of the candidate.

The Court was so circumspect in not even remotely giving the impression that it was treading on legislative domain that it did not accept the arguments to provide for disqualification for non-compliance with its directions or for the consequences of filing a false affidavit.

One should have thought that these mild directions towards cleansing the political field would have been welcome, considering that even the Prime Minister, Atal Behari Vajpayee, had publicly lamented that the electoral system had been almost totally subverted by muscle power and vote bank considerations of caste and community. Instead, in a hurry, the Government brought in the Representation of the people (Amendment Ordinance), followed by the R.P. (Third Amendment Act). Section 33A required the candidate to file an affidavit along with his nomination papers, giving information on pending criminal cases, if any, against him and in which charge has been framed against him.

As for information on his assets/liabilities, it could be furnished after his getting elected. The amendment also provided for penalty for filing a false affidavit. These provisions, in addition to the requirement of information to be given as per the direction of the May 2, 2001, Judgement, would have been broadly accepted by the public as a welcome step towards electoral reforms. But then, the Legislature stepped beyond its powers by incorporating in the Amendment Act Section 33B purporting to nullify the May 2 Judgement by providing that directions issued to the candidates by the court as per the judgment - to provide details of information mentioned therein - need not be complied with. Frankly, no challenge might have been made if the Amendment Act had not introduced Section 33B, which may verily be called a "constitutional monstrosity". This alone was challenged by the PUCL. The Court also held only Section 33B unconstitutional and void because it is well settled that the Legislature has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the courts, or to declare that the decision rendered by the court is not binding or is of no effect.

The result of the latest Judgement is that the candidate, in addition to the disclosure to be made in pursuance of the earlier Court Judgement of May 2002, will also have to give information in pursuance of the Third Amendment Act, 2002. The directions by the Supreme Court and under the Act are supplementary. The court accepted the Government plea that though the Election Commission could insist on information as per the May 2 judgment, it was not justified in saying that wrong information furnished by a candidate would permit the Returning Officer to reject the nominations. It accordingly asked the Election Commission to revise its instruction.
Unfortunately, some political parties, without even observing the courtesy of reading the judgment, assumed a shrill posture, warning of "serious consequences" of alleged usurpation by the Court of the functions of the Legislature. The Court has done nothing of the sort.

Recently, the Election Commission issued revised instructions saying that it is only if information is not furnished as required under both the Supreme Court Judgement and the Third Amendment Act will the nomination papers be rejected. But, if wrong information is given though there will not be a rejection, it will entail criminal prosecution under the Third Amendment Act. Surely, if legislators object to this, their ire should be directed at Parliament, not the Supreme Court.

Over-touchiness on the part of legislators and their treating the Court as an opponent is unedifying. The courts have never doubted that the function of making laws is that of the Legislature. But then, the Legislature also needs to appreciate the role of courts as expounded by the role of courts as expounded by the then Chief Justice of India, Patanjali Sastri (1952), who reminded the Executive that "what is sometimes overlooked is that our Constitution contains express provision for judicial review of legislation as to its conformity with the Constitution. If, then the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a duty plainly laid upon them by the Constitution… We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set-up are out to seek clashed with the legislatures in the country".

Those words of wisdom need reiteration to serve as a beacon light to all constitutional instrumentalities.


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