TaxTMI 
TaxTMI 
2003 (3) TMI 669
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to elucidate and clarify certain crucial aspects. Hence, this separate opinion. I. (1). Freedom of expression and right to information In the Constitution of our democratic Republic, among the fundamental freedoms, freedom of speech and expression shines radiantly in the firmament of Part III. We must take legitimate pride that this cherished freedom has grown from strength to strength in the post independent era. It has been constantly nourished and shaped to new dimensions in tune with the contemporary needs by the constitutional Courts. Barring a few aberrations, the Executive Government and the Political Parties too have not lagged behind in safeguarding this valuable right which is the insignia of democratic culture of a nation. Nurtured by this right, Press and electronic media have emerged as powerful instruments to mould the public opinion and to educate, entertain and enlighten the public. Freedom of speech and expression, just as equality clause and the guarantee of life and liberty has been very broadly construed by this Court right from 1950s. It has been variously described as a 'basic human right', 'a natural right' and the like. It embraces within its scope the fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....democracy." These two decisions have recognized that the right of the citizens to obtain information on matters relating to public acts flows from the fundamental right enshrined in Article 19(1)(a). The pertinent observations made by the learned Judges in these two cases were in the context of the question whether the privilege under Section 123 of the Evidence Act could be claimed by the State in respect of the Blue Book in the first case i.e., Raj Narain's case (supra) and the file throwing light on the consultation process with the Chief Justice, in the second case. Though the scope and ambit of Article 19(1)(a) vis--vis the right to information did not directly arise for consideration in those two landmark decisions, the observations quoted supra have certain amount of relevance in evaluating the nature and character of the right. Then, we have the decision in Dinesh Trivedi Vs. Union of India [(1997) 4 SCC 306]. This Court was confronted with the issue whether background papers and investigatory reports which were referred to in Vohra Committee's Report could be compelled to be made public. The following observations of Ahmadi, C.J. are quite pertinent:-- "In modern Consti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he voter. For the first time in Union of India Vs. Association for Democratic Reforms' case (supra), which is the forerunner to the present controversy, the right to know about the candidate standing for election has been brought within the sweep of Article 19(1)(a). There can be no doubt that by doing so, a new dimension has been given to the right embodied in Article 19(1)(a) through a creative approach dictated by the need to improve and refine the political process of election. In carving out this right, the Court had not traversed a beaten track but took a fresh path. It must be noted that the right to information evolved by this Court in the said case is 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. The right to information of the voter/citizen is sought to be enforced against an individual who intends to become a public figure and the information relates to his personal matters. Secondly, that right cannot materialize without State's intervention. The State or its instrumentality has to compel a subject to make th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court rests on a firm Constitutional basis. I shall now proceed to elucidate as to how the right to know the details about the contesting candidate should be regarded as a part of the freedom of expression guaranteed by Article 19(1)(a). This issue has to be viewed from more than one angle-from the point of view of the voter, the public viz., representatives of Press, organizations such as the petitioners which are interested in taking up public issues and thirdly from the point of view of the persons seeking election to the legislative bodies. The trite saying that 'democracy is for the people, of the people and by the people' has to be remembered for ever. In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. It is through the ballot that the voter expresses his choice or preference for a candidate. "Voting is formal expression of will or opinion by the person entitled to exercise the right on the subject or issue", as observed by this Court in Lily Thomas Vs. Speaker, Lok Sabha [(1993) 4 SCC ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l go a long way in promoting the freedom of speech and expression. That goal would be accomplished in two ways. It will help the voter who is interested in seeking and receiving information about the candidate to form an opinion according to his or her conscience and best of judgment and secondly it will facilitate the Press and voluntary organizations in imparting information on a matter of vital public concern. An informed voter-whether he acquires information directly by keeping track of disclosures or through the Press and other channels of communication, will be able to fulfil his responsibility in a more satisfactory manner. An enlightened and informed citizenry would undoubtedly enhance democratic values. Thus, the availability of proper and relevant information about the candidate fosters and promotes the freedom of speech and expression both from the point of view of imparting and receiving the information. In turn, it would lead to the preservation of the integrity of electoral process which is so essential for the growth of democracy. Though I do not go to the extent of remarking that the election will be a farce if the candidates' antecedents are not known to the voters....
X X X X Extracts X X X X
X X X X Extracts X X X X
....untry and the voter himself. I. (3) Right to vote is a Constitutional right though not a fundamental right but right to make choice by means of ballot is part of freedom of expression. The right to vote for the candidate of one's choice is of the essence of democratic polity. This right is recognized by our Constitution and it is given effect to in specific form by the Representation of the People Act. The Constituent Assembly debates reveal that the idea to treat the voting right as a fundamental right was dropped; nevertheless, it was decided to provide for it elsewhere in the Constitution. This move found its expression in Article 326 which enjoins that "the elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than 21* years of age, and is not otherwise disqualified under the Constitution or law on the ground of non-residence, unsoundness of mind, crime, corrupt or illegal practice-shall be entitled to be registered as voter at such election" (* Now 18 years). However, case after case starting from Ponnuswami's case [(1952) SCR 218]....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom. None of the decisions of this Court wherein the proposition that the right to vote is a pure and simple statutory right was declared and reiterated, considered the question whether the citizen's freedom of expression is or is not involved when a citizen entitled to vote casts his vote in favour of one or the other candidate. The issues that arose in Ponnuswami's case and various cases cited by the learned Solicitor-General fall broadly within the realm of procedural or remedial aspects of challenging the election or the nomination of a candidate. None of these decisions, in my view, go counter to the proposition accepted by us that the fundamental right of freedom of expression sets in when a voter actually casts his vote. I, therefore, find no merit in the submission made by the learned Solicitor Gen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....read as an integral part of that right, it is fraught with dangerous consequences inasmuch as the grounds of reasonable restrictions which could be imposed are by far limited and therefore, the Government may be constrained to part with certain sensitive informations which would not be in public interest to disclose. This raises the larger question whether apart from the heads of restriction envisaged by sub-Article (2) of Article 19, certain inherent limitations should not be read into the Article, if it becomes necessary to do so in national or societal interest. The discussion on this aspect finds its echo in the separate opinion of Jeevan Reddy, J. in Cricket Association's case (supra). The learned Judge was of the view that the freedom of speech and expression cannot be so exercised as to endanger the interest of the nation or the interest of the society, even if the expression 'national interest' or 'public interest' has not been used in Article 19(2). It was pointed out that such implied limitation has been read into the first amendment of the U.S. Constitution which guarantees the freedom of speech and expression in unqualified terms. The following observations of the U.S.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....made punishable. That is the sum and substance of the two provisions namely, Section 33A and 33B. The plain effect of the embargo contained in Section 33B is to nullify substantially the directives issued by the Election Commission pursuant to the judgment of this Court. At present, the instructions issued by the Election Commission could only operate in respect of the items specified in Section 33A and nothing more. It is for this reason that Section 33B has been challenged as ultra vires the Constitution both on the ground that it affects the fundamental right of the voter/citizen to get adequate information about the candidate and that the Parliament is incompetent to nullify the judgment of this Court. I shall briefly notice the rival contentions on this crucial issue. II. (2). Contentions: Petitioners' contention is that the legislation on the subject of disclosure of particulars of candidates should adopt in entirety the directives issued by this Court to the Election Commission in the pre-ordinance period. Any dilution or deviation of those norms or directives would necessarily violate the fundamental right guaranteed by Article 19(1)(a) as interpreted by this Court and th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as the effect of diluting or diminishing the scope of disclosures which, in the perception of the Court, were desirable? In considering these questions of far reaching importance from the Constitutional angle, it is necessary to have a clear idea of the ratio and implications of this Court's Judgment in the Association for Democratic Reforms case. II. (4) Analysis of the judgment in Association for Democratic Reforms case-whether and how far the directives given therein have impact on the Parliamentary legislation-Approach of Court in testing the legislation. The first proposition laid down by this Court in the said case is that a citizen/voter has the right to know about the antecedents of the contesting candidate and that right is a part of the fundamental right under Article 19(1)(a). In this context, M.B. Shah, J. observed that- "...Voter's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote." It was then pointed out that the information about the candidate to be selected is essential as it would be conducive to transparency and purity in the process of election. The next question considered ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....slated into action through the media of Election Commission, which is endowed with 'residuary power' to regulate the election process in the best interests of the electorate. Instead of leaving it to the Commission and with a view to give quietus to the possible controversies that might arise, the Court considered it expedient to spell out five points (broadly falling into three categories) on which the information has to be called for from the contesting candidate. In the very nature of things, the directives given by the Court were intended to operate only till the law was made by legislature and in that sense 'pro tempore' in nature. The five directives cannot be considered to be rigid theorems-inflexible and immutable, but only reflect the perception and tentative thinking of the Court at a point of time when the legislature did not address itself to the question. When the Parliament, in the aftermath of the verdict of this Court, deliberated and thought it fit to secure the right to information to a citizen only to a limited extent (having a bearing on criminal antecedents), a fresh look has to be necessarily taken by the Court and the validity of the law made has to be teste....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cting the legislation for the purpose of securing the right to information about the candidate. The paradigms set by the Court, though pro tempore in nature as clarified supra, are entitled to due weight. If the legislature in utter disregard of the indicators enunciated by this Court proceeds to make a legislation providing only for a semblance or pittance of information or omits to provide for disclosure on certain essential points, the law would then fail to pass the muster of Article 19(1)(a). Though certain amount of deviation from the aspects of disclosure spelt out by this Court is not impermissible, a substantial departure cannot be countenanced. The legislative provision should be such as to promote the right to information to a reasonable extent, if not to the fullest extent on details of concern to the voters and citizens at large. While enacting the legislation, the legislature has to ensure that the fundamental right to know about the candidate is reasonably secured and information which is crucial, by any objective standards, is not denied. It is for the Constitutional Court in exercise of its judicial review power to judge whether the areas of disclosure carved out b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be that the Parliament felt that the disclosure on other aspects was not necessary for the time being. Assuming that the guarantee of right to information is not violated by making a departure from the paradigms set by the Court, it is not open to the Parliament to stop all further disclosures concerning the candidate in future. In other words, a blanket ban on dissemination of information other than that spelt out in the enactment, irrespective of need of the hour and the future exigencies and expedients is, in my view, impermissible. It must be remembered that the concept of freedom of speech and expression does not remain static. The felt necessities of the times coupled with experiences drawn from the past may give rise to the need to insist on additional information on the aspects not provided for by law. New situations and march of events may demand the flow of additional facets of information. The right to information should be allowed to grow rather than being frozen and stagnated; but the mandate of Section 33B prefaced by the non obstante clause impedes the flow of such information conducive to the freedom of expression. In the face of the prohibition under Section 33B, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Courts. Relying on this principle, it is contended that the decision of apex Constitutional Court cannot be set at naught in the manner in which it has been done by the impugned legislation. As a sequel, it is further contended that the question of altering the basis of judgment or curing the defect does not arise in the instant case as the Parliament cannot pass a law in curtailment of fundamental right recognized, amplified and enforced by this Court. The contention that the fundamental basis of the decision in Association for Democratic Reforms case has not at all been altered by the Parliament, does not appeal to me. I have discussed at length the real scope and ratio of the judgment and the nature and character of directives given by this Court to the Election Commission. As observed earlier, those directions are pro tempore in nature when there was vacuum in the field. When once the Parliament stepped in and passed the legislation providing for right of information, may be on certain limited aspects, the void must be deemed to have been filled up and the judgment works itself out, though the proposition laid down and observations made in the context of Article 19(1)(a) o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve, the Parliament has substantially proceeded on the same lines and made it obligatory to the candidate to furnish information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the competent Court. However, the case in which cognizance has been taken but charge has not been framed is not covered by Clause (i) of Section 33A(I). The Parliament having taken the right step of compelling disclosure of the pendency of cases relating to major offences, there is no good reason why it failed to provide for the disclosure of the cases of the same nature of which cognizance has been taken by the Court. It is common knowledge that on account of variety of reasons such as the delaying tactics of one or the other accused and inadequacies of prosecuting machinery, framing of formal charges get delayed considerably, especially in serious cases where committal procedure has to be gone through. On that account, the voter/citizen shall not be denied information regarding cognizance taken by the Court of an offence punishable with imprisonment for two years or more. The citizen's right to information, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... about the honesty and integrity of the candidate. I am therefore of the view that as regards past criminal record, what the Parliament has provided for is fairly adequate. One more aspect which needs a brief comment is the exclusion of offences referred to in sub-Sections (1) and (2) of Section 8 of the R.P. Act, 1951. Section 8 deals with disqualification on conviction for certain offences. Those offences are of serious nature from the point of view of national and societal interest. Even the existing provisions, viz., Rule 4A inserted by Conduct of Elections (Amendment) Rules, 2002 make a provision for disclosure of such offences in the nomination form. Hence, such offences have been excluded from the ambit of Clause (ii) of Section 33A. IV. (2). Assets and liabilities Disclosure of assets and liabilities is another thorny issue. If the right to information is to be meaningful and if it is to serve its avowed purpose, I am of the considered view that the candidate entering the electoral contest should be required to disclose the assets and liabilities (barring articles of household use). A member of Parliament or State Legislature is an elected representative occupying high....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uent/financially sound candidate, the tenet of socialistic democracy and the concept of equality so firmly embedded in our Constitution will be distorted. I cannot also share the view that this information on assets would enable the public to verify whether unaccounted money played a part in contesting the election. So long as the Explanation-I to Section 77 of R.P. Act, 1951 stands and the contributions can legitimately come from any source, it is not possible for a citizen/voter to cause a verification to be made on those lines. In my opinion, the real purposes of seeking information in regard to assets and liabilities are those which I adverted to in the preceding paragraph. It may serve other purposes also, but, I have confined myself to the relevancy of such disclosure vis--vis right to information only. It has been contended with much force that the right to information made available to the voters/citizens by judicial interpretation has to be balanced with the right of privacy of the spouse of the contesting candidate and any insistence on the disclosure of assets and liabilities of the spouse invades his/her right to privacy which is implied in Article 21. After giving anx....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and scrutiny to furnish the details of assets and liabilities of the spouse as well. That is one way of looking at the problem. More important, it is to be noted that the Parliament itself accepted in principle that not only the assets of the elected candidates but also his or her spouse and dependent children should be disclosed to the constitutional authority and the right of privacy should not come in the way of such disclosure; but, the hitch lies in the fact that the disclosure has to be made to the Speaker or Chairman of the House after he or she is elected. No provision has been made for giving access to the details filed with the presiding officer of the House. By doing so, the Parliament has omitted to give effect to the principle, which it rightly accepted as a step in aid to promote integrity in public life. Having accepted the need to insist on disclosure of assets and liabilities of the elected candidate together with those of other family members, the Parliament refrained from making a provision for furnishing the information at the time of filing the nomination. This has resulted in jeopardizing the right to information implicitly guaranteed by Article 19(1)(a). Ther....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d with an account of their own academic and other talents as a part of their election programme. Viewed from any angle, the information regarding educational qualifications is not a vital and useful piece of information to the voter, in ultimate analysis. At any rate, two views are reasonably possible. Therefore, it is not possible to hold that the Parliament should have necessarily made the provision for disclosure of information regarding educational qualifications of the candidates. V. 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; freedo....