2003 Supreme(SC) 337

2003(3) Supreme 93
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
M.B. Shah, P. Venkatarama Reddi & D.M. Dharmadhikari, JJ.
People s Union for Civil Liberties (PUCL) & Anr. -Petitioners
versus
Union of India & Anr. -Respondents
Writ Petition (C) No. 490 of 2002
With
Writ Petition (C) No. 509 of 2002
And
Writ Petition (C) No. 515 of 2002
Decided on 13-3-2003
Counsel for the Parties :
For the Appearing Parties : K.N. Rawal, Additional Soicitor General, Rajinder Sachar, P.P. Rao, Ranjit Kumar, Sr. Advocates, Sanjay Parikh, A.N. Singh, R. Chandrachud, Ms. Vandana Sudan, Abinash K. Misra, Prashant Bhushan, Sanjeev K. Kapoor, T.K. Naveen, Vishal Gupta, Anil Kumar Mittal, G. Balaji, Ms. Kamini Jaiswal, Ms. Bina Gupta, Ms. Divya Roy, Prateek Jalan, Preetesh Kapur, S.N. Terdol and S. Muralidhar, Advocates.

VERY IMPORTANT POINT
Section 33B of the Representation of People (3rd Amendment) Act, 2002 is held to be illegal, null and void as it does not pass the test of constitutionality. It infringes voter s fundamental right to know relevant antecedents of the candidates contesting the elections enshrined in Article 19(1)(a) of the Constitution.

Headnote:(i) Representation of the People (3rd Amendment) Act, 2002-Section 33B-Right to information-Candidate to furnish information only under the Act and the Rules notwithstanding anything contained in any judgment-Supreme Court declared voter s fundamental right to information about assets and antecedents of the candidates for having free and fair elections in 2002(5) SCC 294-Section 33B disregarding said decision-Contention that Ordinance/ Amendment Act covers the directions of Supreme Court-Whether it is in accordance with what has been declared in the said judgment? (No) (see paras 19 to 21).

       (ii) Constitution of India-Article 19(1)(a)-Fundamental right to "freedom of speech and expression" whether includes fundamental right to know relevant antecedents of the candidates contesting the elections? (Yes (paras 22 and 23).

       Held : From the aforesaid discussion it can be held that it is expected by all concerned and as has been laid down by various decisions of this Court that for survival of true democracy, the voter must be aware of the antecedents of his candidate. Voter has to caste intelligent and rational vote according to his own criteria. A well informed voter is the foundation of democratic structure. That information to a voter, who is the citizen of this country, is one facet of the fundamental right under Article 19(1)(a). (Para 33)

       (iii) Constitution of India-Article 145(3)-Voter s fundamental right to know relevant antecedents of the candidates contesting elections-Whether requires consideration by 5 Judges Bench under Article 145(3)? (No).

       (iv) Constitution of India-Articles 19(1)(a) and 19(2)-Representation of People (3rd Amendment) Act, 2002-Section 33B-Candidate to furnish information only under the Act and Rules-Whether can be considered as validating provision and saved by Article 19(2)? (No).

       (v) Constitution of India-Articles 19(1)(a) and 32-Writ petitions against -Representation of the People (3rd Amendment) Act, 2002-Section 33B -Candidate to furnish information only under the Act and Rules-Whether invalid on account of direct abridgement of fundamental right of freedom and expression under Article 19(1)(a)? (Yes).

       Held (Per Shah, J.) : What emerges from the above discussion can be summarised thus:-

        (A) The legislature can remove the basis of a decision rendered by a competent Court thereby rendering that decision ineffective but the legislature has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the Court. A declaration that an order made by a Court of law is void is normally a part of the judicial function. Legislature cannot declare that decision rendered by the Court is not binding or is of no effect.

        It is true that legislature is entitled to change the law with retrospective effect which forms the basis of a judicial decision. This exercise of power is subject to constitutional provision, therefore, it cannot enact a law which is violative of fundamental right.

        (B) Section 33-B which provides that notwithstanding anything contained in the judgment of any Court or directions issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information in respect of his election which is not required to be disclosed or furnished under the Act or the Rules made thereunder, is on the face of it beyond the legislative competence, as this Court has held that voter has a fundamental right under Article 19(1)(a) to know the antecedents of a candidate for various reasons recorded in the earlier judgment as well as in this judgment.

        Amended Act does not wholly cover the directions issued by this Court. On the contrary, it provides that candidate would not be bound to furnish certain information as directed by this Court.

        (C ) The judgment rendered by this Court in Association for Democratic Reforms (supra) has attained finality, therefore, there is no question of interpreting constitutional provision which calls for reference under Article 145(3).

        (D) The contention that as there is no specific fundamental right conferred on a voter by any statutory provision to know the antecedents of a candidate, the directions given by this Court are against the statutory provisions are, on the face of it, without any substance. In an election petition challenging the validity of an election of a particular candidate, the statutory provisions would govern respective rights of the parties. However, voters fundamental right to know antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them. Right to vote would be meaningless unless the citizens are well informed about the antecedents of a candidate. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.

        (E) It is established that fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the Court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. During last more than half a decade, it has been so done by this Court consistently. There cannot be any distinction between the fundamental rights mentioned in Chapter-III of the Constitution and the declaration of such rights on the basis of the judgments rendered by this Court.

       In the result, Section 33-B of the Amended Act is held to be illegal, null and void. However, this judgment would not have any retrospective effect but would be prospective. Writ petitions stand disposed of accordingly. (Paras 83 and 84)

       Held (Per P.V. Reddi, J.) : The width and amplitude of the right to information about the candidates contesting elections to the Parliament or State Legislature in the context of the citizen s right to vote broadly falls for consideration in these writ petitions under Article 32 of the Constitution. While I respectfully agree with the conclusion that Section 33(B) of the Representation of the People Act, 1951 does not pass the test of constitutionality, I have come across a limited area of disagreement on certain aspects, especially pertaining to the extent of disclosures that could be insisted upon by the Court in the light of legislation on the subject. Moreover, the importance and Intricacies of the subject-matter and the virgin ground trodden by this Court in Union of India vs. Association for Democratic Reforms [(2002) 5 SCC 294] to bring the right to information of the voter within the sweep of Article 19(1)(a) has impelled me to elucidate and clarify certain crucial aspects. Hence, this separate opinion. (Para 85)

       Held thereafter : Conclusions:-Finally, the summary of my conclusions:

        1. Securing information on the basic details concerning the candidates contesting for elections to the Parliament or State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the Press and electronic media, though, to a certain extent, there may be overlapping.

        2. The right to vote at the elections to the House of people or Legislative Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.

        3. The directives given by this Court in Union of India vs. Association for Democratic Reforms [(2002) 5 SCC 294] were intended to operate only till the law was made by the Legislature and in that sense pro tempore in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced.

        4. The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right.

        5. Section 33B inserted by the Representation of People (3rd Amendment) Act, 2002 does not pass the test of constitutionality firstly for the reason that it imposes blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate.

        6. The right to information provided for by the Parliament under Section 33A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by Court from the ambit of disclosure.

        7. The provision made in Section 75A regarding declaration of assets and liabilities of the elected candidates to the Speaker or the Chairman of the House has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of spouse or dependent children, the Parliament ought to have made a provision for furnishing this information at the time of filing the nomination. Failure to do so has resulted in the violation of guarantee under Article 19(1)(a).

        8. The failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression.

        9. The Election Commission has to issue revised instructions to ensure implementation of Section 33A subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The Election Commission s orders related to disclosure of assets and liabilities will still hold good and continue to be operative. However, direction No. 4 of para 14 insofar as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced.

       Accordingly, the writ petitions stand disposed of without costs. (Paras 127 and 128)

       Held (Per Dharmadhikari, J.) : I am in respectful agreement with the above conclusion reached in common by both the learned brothers. I would, however, like to supplement the above conclusion. (Para 130)

       Held thereafter : With these words, I agree with conclusions (A) to (E) in the opinion of Brother Shah J. and conclusion Nos. (1), (2), (4), (5), (6), (7) & (9) in the opinion of Brother P.V. Reddi J. With utmost respect, I am unable to agree with conclusion Nos. (3) & (8) in the opinion of Brother P.V. Reddy J., as on those aspects, I have expressed my respectful agreement with Brother Shah J. (Paras 135 and 136)