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.