Very Important Points
1. High Court can issue directions to Election Commission that an election candidate must be directed to furnish necessary particulars with regard to pending criminal cases, his assets and qualifications but as modified by Apex Court in this judgment.
2. A voter has a right before casting his vote to know about relevant particulars about his/their candidates under Article 19(1)(a) of Constitution.

Headnote:(i) Constitution of India—Articles 324 and 226—High Court in writ U/A 226 giving directions to Election Commission that an election candidate must be directed to furnish necessary information with regard to pending criminal cases, about his assets and educational qualifications (See Para 4)—Whether election commission is empowered to issue directions as ordered by the High Court? (Yes)—Whether directions issued by High Court are unjustified or beyond its jurisdiction? (No)—But said directions are modified by Apex Court in the light of submissions made by the learned counsel of the parties. (Paras 43 & 44)
       Held : Finally, 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 field. 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 in 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 field. 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 field to ensure proper implementation of rule of law. (Para 41)
       (ii) Constitution of India—Article 19(1)(a)—Whether before casting votes, voters have a right to know relevant particulars of their candidates under Article 19(1)(a)? (Yes).
       Held : If right to telecast and right to view to sport games and right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter - a little man — to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a)? In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, one-sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce. Therefore, casting of a vote by misinformed and non-informed voter or a voter having one-sided information only is bound to affect and democracy seriously. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions. Entertainment is implied in freedom of ‘speech and expression’ and there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy. (Para 34)
       (iii) Summary of conclusions on questions: (1) whether election commission is empowered to issue directions as ordered by the High Court? and (2) Right to know about the candidates contesting elections.
       Held : 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 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, 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’s case, the Court construed the expressions “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 orders.
        3. The word “elections” 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 for 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 re-elected 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 election. In a democracy, the electoral process has a strategic role. The 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.
        5. The right to get information in democracy is recognised 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 interference.
        (2) Everyone shall have the right to freedom of expression; this right 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 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. Voter’s (little man —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.
       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. 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, moveable, 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.
       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. (Paras 42, 43, 44 & 45)
       Held consequently : In the result, Civil Appeal No. 7178 of 2001 is partly allowed and the directions issued by the High Court are modified as stated above. Appeal stands disposed of accordingly. Writ Petition (C) No. 294 of 2001 is allowed to the aforesaid extent. There shall be no order as to costs. (Paras 46, 47 and 48)

Judgement Key Points

Based on the provided legal document, the relevance of the information about a candidate's criminal record, assets, liabilities, and educational qualifications extends beyond the election process itself and is highly pertinent post-election. The document emphasizes that transparency regarding a candidate’s background is crucial for informed voting and the integrity of democratic governance.

It highlights that voters have a fundamental right to know about the antecedents of their elected representatives, including criminal involvement and financial status, to ensure accountability and maintain public trust in elected officials. This right to information is rooted in the principles of freedom of speech and expression, which include the right to seek, receive, and impart information, and is essential for the proper functioning of democracy (!) (!) (!) (!) .

Furthermore, the document discusses that the obligation to disclose assets and criminal records is not only relevant during the election but also has implications for accountability and transparency during the tenure of elected representatives. It underscores the importance of continued transparency and the public’s right to access information about their representatives’ conduct and background even after the election, to prevent misuse of power and corruption (!) .

In summary, the legal principles and directives outlined in the document establish that such information is relevant not only in the context of voting but also for ongoing public oversight and accountability of elected officials post-election.

JUDGMENT

Shah, J.—Short but important question involved in these matters is—in a nation wedded to republican and democratic form of government, where election as a Member of Parliament or as a Member of Legislative Assembly is of utmost importance for governance of the country, whether, before casting votes, voters have a right to know relevant particulars of their candidates? Further connected question is—whether the High Court had jurisdiction to issue directions, as stated below, in a writ petition filed under Article 226 of the Constitution of India?

2. Before dealing with the aforesaid questions, we would refer to the brief facts as alleged by the Petitioner-Association for Democratic Reforms in Writ Petition No. 7257 of 1999 filed before the High Court of Delhi for direction to implement the recommendations made by the Law Commission in its 170th Report and to make necessary changes under Rule 4 of the Conduct of Election Rules, 1961. It has been pointed out that Law Commission of India had, at the request of Government of India, undertaken comprehensive study of the measures required to expedite hearing of election petitions and to have a thorough review of the Representation of the People Act, 1951 (hereinafter referred to as “the Act”) so as to make the electoral process more fair, transparent and equitable and to reduce the distortions and evils that have crept into the Indian electoral system and to identify the areas where the legal provisions required strengthening and improvement. It is pointed out that Law Commission has made recommendation for debarring a candidate from contesting an election if charges have been framed against him by a Court in respect of certain offences and necessity for a candidate seeking to contest election to furnish details regarding criminal cases, if any, pending against him. It has also suggested that true and correst statement of assets owned by the candidate, his/her spouse and dependant relations should also be disclosed. Petitioner has also referred Para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of Home Affairs, which reads as follows :-

“6.2 Like the Director CBI, the DIB has also stated that there has been a rapid spread and growth of criminal gangs, armed senas, drug Mafias, smuggling gang, drug peddlers and economic lobbies in the country which have, over the years, developed an extensive network of contacts with the bureaucrates/Government functionaries at the local levals, politicians, media persons and strategically located individuals in the non State sector. Some of these Syndicates also have international linkages, including the foreign intelligence agencies. In this context the DIB has given the following examples—

(i) In certain States like Bihar, Haryana and UP, these gangs enjoy the patronage of local level politicians, cutting across party lines and the protection of Governmental functionaries. Some political leaders become the leaders of these gangs, armed senas and over the years get themselves elected to local bodies, State Assemblies and the national Parliament. Resultantly, such elements have acquired considerable political cloul seriously jeopardising the smooth functioning of the administration and the safety of life and property of the common man causing a sense of despair and alienation among the people;

(ii) The big smuggling Syndicates having international linkages have spread into and infected the various economic and financial activities, including havala transactions circulation of black money and operations of a vicious parallel economy causing serious damage to the economic fibre of the country. These Syndicates have acquired substantial financial and muscle power and social respectability and have successfully corrupted the Government machinery at all levels and yield enough influence to make the task of Investigating and Prosecuting agencies extremely difficult; even the members of the Judicial syst

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2002 Supreme(SC) 607

Cases Referred (11)