POWERS

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ELECTORAL

COMMISSION

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THE

RIGHT

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INFORMATION IN ELECTIONS COURT DECISIONS AND OTHER OPINIONS COMPILED BY VICTOR N. MUIRURI A. DECISIONS 1. Union of India v Association for Democratic Reforms and another, Civil Appeal No.7178 of 2001 Supreme Court of India, in a landmark judgment1 held as follows: Under our Constitution, Art 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 (little man citizens) 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. The Court issued two main rulings: (1) when the legislature is silent on a particular subject and an entity (in this case, the Election Commission) has been granted implementation authority with respect to such subject, the Court assumes the power to issue directions or orders to fill such a void until a suitable law on the subject is enacted, and (2) citizens have a right to know about public functionaries, which is derived from the concept of freedom of speech and expression and which includes the right to know about the backgrounds of candidates for public office. Pg. 9, 14. With regard to the first ruling, the Court grounded its reasoning in Article 324 of the Constitution of India and extensive case law. Citing multiple cases, the Court confirmed that Article 324 operates in areas unoccupied by legislation and that [t]he silence of a statute has no exclusionary effect except where it flows from necessary implication. Pg. 10-11. In other
Union of India v Association for Democratic Reforms and another, Civil Appeal No.7178 of 2001, Date of judgment 2 May 2002.
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words, the Courts power to issue directions pursuant to Article 324 is plenary. Pg. 19. By extension, the Election Commission, as ordered by the Court, can issue suitable directions to maintain the purity and transparency of the entire process of election. Pg. 13, 19. With regard to the second ruling, the Court classified the right to know as a derivative right. Pg. 14. As derived from the right to freedom of speech and expression, the public has a right to now about candidates contesting elections because such freedoms include the right to hold opinions and acquire information so as to be sufficiently informed in disseminating those opinions throughout the election process. Pg. 14-15. The Court advanced this point by observing that a successful democracy strives toward and aware citizenry and misinformation or noninformation of any kind will create a uniformed citizenry which makes democracy a farce. Pg. 16. With the above decided, the Court directed the Election Commission to issue necessary orders to obtain from each candidate for election to Parliament or a State Legislature information on the following aspects of their background: any criminal charges and convictions in the candidates past, any pending cases in which the candidate is an accused, all assets of a candidate including those of his/her spouse, all liabilities of a candidate, and all educational qualifications of a candidate. Pg. 20-21. Summing up the amplitude of powers of the Election Commission under Art 324, the Supreme Court held in Union of India v association for Democratic Reforms and Ors; (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, art 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
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rules. By issuing necessary direction, Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omars case AIR 1986 SC 111, the Court construed the expressions superintendence, direction and control` in Art 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.

2. Peoples Union for Civil Liberties (PUCL) and Ors Vs. Union of India and Anr (AIR2003SC2363) In Peoples Union for Civil Liberties (PUCL) and Ors Vs. Union of India and Anr., the apex court stated that it is true that the elections are fought by the political parties, yet election would be a farce if the voters are unaware of antecedents of candidates contesting elections. Their decisions to vote either in favour of A or B candidate would be without any basis. Such election would be neither free nor fair. The Supreme Court in this case considered the report of the Law Commission, National Commission to Review the Working of the Constitution, conclusion drawn in the report of Shri Indrajit Gupta and Ethics Manual applicable in an advance democratic country and observed that it is apparent that for saving democracy from the evil influence of criminalization of politics, for saving the election from muscle and money power, for having true democracy and for controlling corruption in politics, the candidate contesting the election should be asked to disclose his antecedents including assets and liabilities. Thereafter, it is for the voters to decide in whose favour he should cast his vote. 3. Union of India v. Association for Democratic Reforms & another (AIR 2002 SC 2112) The Apex Court has observed as follows: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
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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. 4. B.R. Kapur v. State of Tamil Nadu{2001(7) SCC 231} The court held that A person who is convicted for a criminal offence and is sentenced to imprisonment for a period of not less than 2 years cannot be appointed as the Chief Minister of a state under Article 164(1) read with (4) and cannot continue to function as such. Hence the appointment of Jayalalitha as the Chief Minister of Tamil Nadu was not legal and valid and that she cannot continue to function as the same. 5. Shri Gobind Jha Vs Army Hqrs (CIC/80/2006/ 00039 dated 1.6.2006). The Division Bench observed While in criminal law, an investigation can be said to be completed with the filing of charge sheet in the appropriate court by an investigating agency, in cases of vigilance related inquiries, misconduct and disciplinary matters, the investigation can be said to be over only when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against. In that sense, the word investigation used in Section 8(1)(h) should be construed rather broadly and should include all inquiries, verification of records, assessments and so on which may be ordered in specific cases. In all such matters, the inquiry or investigation should be taken as completed only after the competent authority makes a prima facie determination about the presence or absence of guilt on receipt of the investigation/inquiry report from the investigation/inquiry officer 6. Debi ghosal vs. Jyoti basu In this case the court held that the right to vote is fundamental right it meant voters have right to know about their candidates assets or liabilities. So the court held that right to vote is fundamental right. 7. kuldip singh vs. Union of India

The court held that the Article 19 provides freedom of speech and expression as well as it is provides information about the candidates and a committee named PUCL is providing information of elections. Now the laymen can easily known that to whom they casting their vote whether the person is qualified or eligible to whom the laymen casting their vote. And Article 19 1 (a) also provides the information and detail knowledge about their candidate. 8. S.P. Gupta v. Union of India [1982] AIR (SC) 149, at 232. Recognizing a right to know which seems implicit in the right of free speech and expression, the Indian Court reasoned that, [w]here a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of government. The citizens right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. 9. Common Cause v. Union of India (1996) 2 SCC 752. The Court held that the Election Commission was authorized to collect information from political parties and their candidates on their electoral spending. 10. Zarate v. Federal Electoral Institute Case SUP-JDC-041/2004, Judgment of September 10, 2004, p. 69. The Mexican Electoral Tribunal ruled that; [a]ll Mexican citizens enjoy, in the exercise of their political-electoral rights, a prerogative of receiving information about certain basic aspects of political parties in order that they can decide whether to vote for [the parties] or not, whether to join them or not, insofar as such decisions form part of the citizens freedom to choose, which could not be fully exercised if access to such information were denied.
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11. TN Seshan v Union of India and Ors (1995) 4 SCC 611 The Supreme Court in this case observed that : Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. ln order to ensure the purity of the election process, it was thought by our Constitution-makers that the responsibility to hold free and fair election in the country should be entrusted to an independent body which would be insulated from political and/ or executive interference. It is inherent in a democratic set up that the agency which is entrusted the task of holding elections to the legislatures should be fully insulated so that it can function as an independent agency free from external pressures from the party in power or executive of the day. This objective is achieved by the setting up of an Election Commission, a permanent body, under Art 324(1) of the constitution. 12. AC Jose v Sivan Pillai and Ors AIR 1984 SC 921 The Supreme Court held that when there is no parliamentary legislation or rule made under the said legislation, the Commission is free to pass any order in respect of the conduct of elections, but where there is an Act and express rules made there under, it is not open to the Commission to override the Act or the rules, and pass orders in direct disobedience to the mandate contained in the Act or rules. The powers of the Commission are meant to supplement rather than supplant the law in the matter of superintendence, direction and control as provided by art 324. Where a particular direction by the Commission is submitted to the government for approval as required by the rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the government is not given.

B. OPINIONS AND RECOMMENDATIONS A table that summarizes the reports and the suggestions of various bodies towards keeping criminal elements out of the election system, and lists the view of the parliament towards amending legislation to decriminalize policy; Report Election Commission Report on Electoral Reforms Date of Submission Election Submitted to Commission of Prime Minister India on July 4, 2004 Presided by T. S. Krishnamurthy, Chief Election Commissioner Member of Report submitted to Commission: on 31 Justice B.P. Jeevan GoI Reddy, Dr. March, 2002 Subhash Kashyap, Shr C.R. Irani, Smt. Sumitra G. Kulkarni Originating Body Recommendations Disqualify candidates against whom cases punishable by imprisonment for more than 5 years are pending

Report of the National Commission to Review the Working of the Constitution

Law Commission Justice B.P. Jeevan Submitted to Report on Electoral Reddy Ministry of Reforms, Report #170 Law, Justice, and Company Affairs on May 1999

People with cases punishable with imprisonment for 5 years or more should be disqualified from contesting elections till case is concluded People convicted of heinous crimes should be barred for life Special Courts, at the level of High Courts, should be constituted to enquire into and take decisions on framing charges if police have made charges against candidates Special courts should also be constituted at the level of High Courts, to decide cases within a 6 month period Disqualify candidates with serious criminal charges pending against them for a period of 5 years from the date of framing charges, unless they are acquitted within that period

These recommendations have been discussed below; (i) The Election Commission of India, in its 'Proposals on Electoral Reforms (July 2004)', observed as follows: "The Commission had proposed that the law should be amended to provide that any person who is accused of an offence punishable by imprisonment for five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by the competent court. The Commission reiterates that such a step would go a long way in cleansing the political establishment from the influence of criminal elements and protecting the sanctity of the Legislative Houses" (ii) Law Commission of India in its 170th Report on Reforms of the Electoral Laws (1999) considered the issue of disqualification of persons on the ground of charges framed against them by the court. After taking into account different views, for and against, the Law Commission recommended insertion of a new section 8B in the Representation of the People Act, 1951 in the following words: 8-B Disqualification on framing of charge for certain offences-A person against whom charge has been framed under : (a) section 153A, section 171E, section 171F, section 171G, section 171H, section 171-I, sub-section (1) or sub-section (2) of section 376, sub-section(2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860); or (b) Sections 10 to 12 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or (c) The penal provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) except section 27 thereof; or (d) Section 125, section 135, section 135 A or sub-section (2) of section 136 of this Act; or (e) Any other offence punishable with imprisonment for life or death under any law.

shall be disqualified for a period of five years from the date of framing the charge, provided he is not acquitted of the said charge before the date of scrutiny notified under section 36 of this Act. (iii) The National Commission to Review the Working of the Constitution in India recommended in its Review of the Working of the Constitution as under: The Commission recommends that the Representation of the People Act be amended to provide that any person charged with any offence punishable with imprisonment for a maximum term of five years or more, should be disqualified for being chosen as, or for being, a member of Parliament or Legislature of a State on the expiry of a period of one year from the date the charges were framed against him by the court in that offence and unless cleared during that one year period, he shall continue to remain so disqualified till the conclusion of the trial for that offence. In case a person is convicted of any offence by a court of law and sentenced to imprisonment for six months or more the bar should apply during the period under which the convicted person is undergoing the sentence and for a further period of six years after the completion of the period of the sentence. If any candidate violates this provision, he should be disqualified. Also, if a party puts up such a candidate with knowledge of his antecedents, it should be derecognized and deregistered. Any person convicted for any heinous crime like murder, rape, smuggling, dacoity, etc. should be permanently debarred from contesting for any political office. Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed off (sic) speedily, if necessary, by appointing Special Courts. A potential candidate against whom the police have framed charges may take the matter to the Special Court. This court should be obliged to enquire into and take a decision in a strictly time bound manner. Basically, this court may decide whether there is indeed a prima facie case justifying the framing of charges. The Special Courts should be constituted at the level of High Courts and their decisions should be appealable to the Supreme Court only (in similar way as the decisions of the National Environment Tribunal). The Special Courts should decide the cases within a period of six months. For deciding the cases, these Courts should take evidence through Commissioners.
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