Holding

Article 324 endows the Election Commission with a plenary, residuary power to issue directions for free and fair elections, including the requirement that candidates disclose criminal, asset and educational details, and such disclosure is protected by the right to information under Article 19(1)(a).

Summary

The Supreme Court examined whether the Election Commission could be directed to require candidates to disclose criminal cases, assets, liabilities and educational qualifications, as ordered by the Delhi High Court, despite the absence of a specific provision in the Representation of the People Act, 1951 or the Conduct of Election Rules, 1961. The Court held that Article 324 confers a plenary, residuary power on the Commission to fill legislative gaps to ensure free and fair elections. It further ruled that the right to know a candidate's background is encompassed within the freedom of speech and expression guaranteed by Article 19(1)(a). Consequently, the High Court's directions were not ultra vires, but were modified to require candidates to file a sworn affidavit containing the specified information as part of their nomination papers. The appeal was partly allowed, the High Court's directions were altered, and the related writ petition was allowed. The judgment underscored the Court’s authority under Articles 32, 141 and 142 to issue directions when statutes are silent.

Issues considered

Whether the Election Commission has the authority under Article 324 to issue directions requiring candidates to disclose criminal, financial and educational information in the absence of a specific statutory provision.
Whether a voter’s right to information about candidates falls within the ambit of Article 19(1)(a) freedom of speech and expression.
Whether the Delhi High Court could validly direct the Election Commission to implement the Law Commission and Vohra Committee recommendations despite the lack of amendment to the Representation of the People Act, 1951 and Conduct of Election Rules, 1961.

Legislation cited

Companies Act, 1956s. 293-A
Conduct of Election Rules, 1961
Income Tax Act, 1961s. 13-A
Representation of the People Act, 1951s. 32, s. 33, s. 34, s. 36, s. 8, s. 8A

Subjects

Election CommissionArticle 324Right to informationFreedom of speechCandidate disclosureRepresentation of the People ActConduct of Election RulesVoter rightsElectoral reformsSupreme Court

Judgment

A UNION OF INDIA
v.
ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR.

MAY 2, 2002

B [M.B. SHAH, BISHESHWAR PRASAD SINGH AND H.K. SEMA, JJ.]

Constitution of India, 1950:

Article 324-Powers of Election Commission-To issue directions for
C conducting free and fair election-Absence of amendmil!nt to that effect in
election law-Effect of-Held, even then the Election Commission has power
under Article 324 which is reservoir of power and plena1y in character-
limitation on such plenary character of power is when legislature makes a
valid law relating to election-Representation of People Act, 1951-Conduct
D of Election Rules, 1961.
Articles 32, 141and142-Power of Court to issue direction on subject
regarding which Act and Rules are silent-Authority implementing the law
has constitutional and statutory power to implement the same-Held, Court
can issue directions or orders on such subject to fill the vacuum or void till
E suitable law is enacted-legislation-Need for-Directions by Court mean
while.

Article 19(a/--Scope and ambit of-Right to know about candidates
contesting elections-Held, freedom of speech and expression would include
such right within its ambit.
F
Words and Phrases-"Superintendence, direction and control", "conduct
of all election" and "elections"-Meaning of in the context of Article 324(/)
of Constitution of India, 1950.

Respondent tiled Writ Petition for direction to implement the
G recommendation made by l 70th Report of Law Commission and Vohra
Committee Report and for a direction to the Election Commission to
provide information by amending Form 2A to 2E prescribed under the
Conduct of Election Rules, 1961.

High Court directed the Election Commission to secure the voters the
H 696
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS 697

following information pertaining to each candidate contesting election to A
the Parliament and to State Legislatures and the parties they present:

l. Whether the candidate is accused of any offence(s) punishable with
imprisonment? If so, the details thereof.

2. Assets possessed by candidate, his or her spouse and dependent
B
relations.

3. Facts giving insight the candidate's competence, capacity and
suitability for acting as parliamentarian or legislator including details of
his/ her educational qualification. C

4. Information which the Election Commission considers necessary
for judging the capacity and capability of the political party fielding the
candidate for election.

In appeal to this Court, the appellant contended that High Court D
....._ could not have given direction to the Election Commission till suitable
• amendments were made for the Representation of People Act, 1951 and
Conduct of Election Rules, 1961 and the direction would be of no
consequence as the Act and the Rules do not disqualify a candidate for non-
disclosure of assets or pending charges in criminal cases. E
Intervenor in the case contended that High Court could not have
given direction once Parliament had not amended the Act or the Rules
despite the recommendations of Law Commission and Vohra Committee;
and that the citizens do not have right to know about the personal affairs
)L
of M.P.s and M.L.As. F

Respondents contended that Article 324 of the Constitution of India
gives power to the Election Commission and the same should be interpreted
in a broad perspective.
G
Petitioners, in connected writ petition, contended that even if
presumed that High Court did not have jurisdiction to pass orders this

- r
Court has jurisdiction to do so in exercise of its power under Article 142
of the Constitution.

Thus the questions for consideration were whether Election Commission H
698 SUPREME COURT REPORTS [2002] 3 S.C.R.

A was empowered to issue directions as ordered by High Court; and whether
a voter has right to get relevant information such as assets, qualification
and involvement in offence for being educated and informed for judging
the suitability of a candidate contesting election.

Partly allowing the appeal and the connected writ petition, the Court
B
HELD : I. I. It cannot be said that if there is no provision in
~~-
Representation of People Act, 1951 or Conduct of Election Rules, 1961 the
High Court ought not to have issued such directions to the Election y .....
Commission. In case where law is silent, Article 324 is a reservoir of power
c to act for the avowed purpose of having free and fair election. Constitution
has taken care of leading 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 t ~·
D can fill the vacuum till there is legislation on the subject. The phrase
"superintendence, direction and control" in Article 324(1) should be
construed liberally empowering the election commission to issue such ,..i.._

orders. Power of the Commission is plenary in character in exercise thereof. • .....
The limitation on plenary character of power is when the Parliament or
E State Legislature has made valid law relating to or in connection with
elections, the Commission is required to act in conformity with the said
provisions. 1716-C; 726-C-EJ

Kanhiya Lal Omar v. R.K. Trivedi and Ors., fl985) 4 SCC 628 and
Common Cause (A Registered Society) v. Union of India and Ors., 11996) 2
F sec 752, relied on. ~ '6

1.2. 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. 1726-B)
G
1.3. It cannot be said that the directions issued by the High Court
are unjustified or beyond its jurisdiction. However, the said directions are
modified to the effect that the Election Commission is directed to call for
-1 ~
information on affidavit by issuing necessary order in exercise of its power
H under Article 324 of the Constitution of India from each candidate seeking
.
j

-
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS 699
.... election to Parliament or a State Legislature as a necessary part of his A
nomination paper, furnishing therein, information on the following aspects in
relation to his/hers candidature :
,.
(I) Regarding conviction/acquittal/discharge in any criminal offence in

-
the past-If any, and regarding punishment with imprisonment or fine.
B
(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.
c
(3) The assets (immovable, movable, bank balances etc.) ofa candidate
and of his/her spouse and that of dependants.

( 4) Uabilities, if any, particularly whether there are a·ny over dues of
any public financial institution or Government dues.
D
A (5) The educational qualifications of the candidate. 1728-C-G]
. 2.L The people of the country have a right to know every public act,
everything that is done in a public way by the public functionaries. M.Ps. or
M.L.As are undoubtedly public functionaries. Public education is essential for
E
functioning of the process of the popular government and to assist the discovery
of truth and strengthening the capacity of an individual in participating in
decision making process. The decision making process of a voter would include
his right to know about public functionaries who are required to be elected by
,,>_
him. (719-A, BJ
F
Indian Express Newspapers (Bombay) Private ltd and Ors. etc. v. Union
of India and Ors., [1985[ I SCC 641 and P. V. Narasimha Rao v. State (CBI!
SPE). (1998) 4 sec 626, relied on.

2.2. Democracy cannot survive without free and fair election, without free
and fairly informed voters. Votes cast by un-informed voters in favour of X or
G
Y candidate would be meaningless. One-sided information disinformation,

-- ~
misinformation and non~information all equally create an uniformed 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 the democracy seriously. Article 19(1)(a) provides for freedom of H
700 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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 much. -~
Voter's right to know antecedents including criminal past of his candidate "
contesting election for M.P. and MLA is much more fundamental and basic
for survival of democracy. There is no reason to hold that freedom of speech
B 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. [722-D-E; 728-A-B; 722-F) "f

2.3. It cannot be said that information about t~e contesting candidate would
c amount to knowing personal affairs of M.Ps or MLAs. The limited information
is-whether the person who is contesting election is involved in any criminal
case and if involved what is the result? Further there are wide-spread
allegations of corruption against the persons holding post and power. In such
a situation, question is not of knowing personal affairs but to have openness
in democracy for attempting to cure cancerous growth of corruption by few
D rays of light. Hence, citizens who elect MPs or MLAs are entitled to know
that their representative has not misconducted himself in collecting wealth )..

after being elected. This information could be easily gathered only if prior to
election, the assets of such person are disclosed. (723-D, E) '
E 2.4. 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. If on affidavit a candidate is required to disclose the assets held
F ~ ...
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. [726~F, H; 727-A)

3.1. Though it is not possible for this Court to give any directions for
amending the Act or the statutory Rules. It is on the Parliament to amend the
Act and the Rules. It is also established law that no direction can be given
G
which would be contrary to the Act and the Ru.Jes. However, in case when the
Act or Rules are silent on a particular subject and the Authority implementing
the same has constitutional or statutory power to implement it, the Court can -1 ,,_
necessarily issue directions or orders on the said subject to fill the vacuum
or void till the suitable law is enacted. (712-B, D)
H
j
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 701

A
, Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi,
[19781 l sec 405, referred to.
- .A.

3.2. 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 B
the executive to fill the vaccum by executive orders because its field is
conterminous 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. C
[725-C-D[

Vishakha v. State o[Rajasthan, [1997] 6 SCC 341, relied on.

3.3. If the field meant for legislature and executive is left unoccupied
detrimental to the public interest, this Court would have ample jurisdiction D
under Article 32 read with Articles 141and142 of the Constitution to issue
necessary directions to the Executive to subserve public interest. [727-G, H]

CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No.
7178 of2001.
E
From the Judgment and Order dated 2.11.2000 of the Delhi High Court
in C.W.P. No. 7257of1999.

WITH

W.P. (C) No. 294 of200I. F
, ,>. Harish N. Salve, Solicitor General, Rajinder Sacchar, Ashwini Kumar,
' K.K. Venugopal, Sanjay R. Hegde, Satya Mitra, Ms. Aprajita Singh for S.N.
Terdol, Sanjay Parikh, R.R. Chandrachud, Ranji Thomas, Javed M. Rao, S.
Muralidhar, S.K. Mendiratta, S. Vallinayagam, Shreyas Jayasinha, Ms. Kamini
Jaiswal and Ms. Aishwarya Rao for the appearing parties. G
The Judgment of the Court was delivered by

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 H
702 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 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?
,,,.'
B Before dealing with the aforesaid questions, we would ref~r to the br:ef
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 l 70th ...,:
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
c 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 eviJ.s that have
,
D 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 A_
in respect of certain offences and necessity for a candidate seeking to contest
election to furnish details regarding criminal cases, if any, pending against
"'-
E him. It has also suggested that true and correct 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 oflndia, Ministry of Home Affairs, which reads
as follows:
F
"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 bureaucrats/Government functionaries at the
G local levels, politicians, media pers9ns 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
H the patronage of local level politicians, cutting across party lines
j
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS (M.B. SHAH, J.] 703

and the protection of Governmental functionaries. Some political A
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 clout seriously jeopardising the
smooth functioning of the administration and the safety of life B
and property of the common man causing a sense of despair and

.. ,,. (ii)
alienation among the people;
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 c
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; D
even the members of the Judicial system have not escaped the
embrace of the Mafia;

/
'"" (iii) Certain elements of the Mafia have shifted to narcotics, drugs and
weapon smuggling and established narco .. terrorism networks
specially in the States of J&K, Punjab, Gujarat and Maharashtra. E
The cost of contesting elections has thrown the politician into the
lap of these elements and led to a grave compromise by officials
of the preventive/detective systems. The virus has spread to
almost all the centres in the country, the coastal and the border
States have been particularly affected;
F
; >- (iv) The Bombay bomb blast case and the communal riots in Surat and
Ahmedabad have demonstrated how the India underworld has
been exploited by the Pak IS! and the latter's network in UAE to
cause sabotage subversion and communal tension in various
parts of the country. The investigations into the Bombay bomb
blast cases have revealed expensive linkages of the underworld G
in the various governmental agencies, political circles, business
sector and the film world."

It is also contended that despite the Reports of the Law Commission
and Vohra Committee, successive governments have failed to take any action
and, therefore, petition was filed for implementation of the said reports and H
704 SUPREME COURT REPORTS [2002] 3 S.C.R.

A for a direction to the Election Commission to make mandatory for every
candidate to provide information by amending Form 2-A to 2-E prescribed
under the Conduct of Election Rules, 1961. After hearing the parties, the High
Court by judgment and order dated 2nd November, 2000, held that it is the
function of the Parliament to make necessary amendments in the Representation
B of the People Act, 1951 or the Electiqn Rules and, therefore, Court cannot
pass any order, as prayed, for amending the Act or the Rules.

However, the Court considered whether or not an elector, a citizen of
the country has a fundamental right to receive the information regarding the
criminal activities of a candidate to the Lok Sabha or Legislative Assembly
C for making an estimate for himself-as to whether the person who is contesting
the election has a background making him worthy of his vote, by peeping into
the past of the candidate. After considering the relevant submissions and the
reports as well as the say of Election Commission, the High Court held that
for making a right choice, it is essential that the past of the candidate should
not be kept in the dark as it is not in the interest of the democracy and well
D being of the country. The Court directed the Election Commission to secure
to voters the following information pertaining to each of the candidates
---
contesting election to the Parliament and to the State Legislature and the
parties they represent:-

l. Whether the candidate is accused of any offence(s) punishable
E with imprisonment? If so, the details thereof.
2. Assets possessed by a candidate, his or her spouse and dependant
relations?
3. Facts giving insight to candidate's competence, capacity and
suitability for acting as parliamentarian or legislator including
F
details of his/her educational qualifications;
4. Information which the election commission considers necessary
for judging the capacity and capability of the political party fielding
the candidate for election to Parliament or the State Legislature.
G That order is challenged by Union of India by filing the present appeal.

On behalf of Indian National Congress I.A. No.2 of 2001 is also filed for
impleadment/intervention in the appeal filed by the Union of India by inter
alia contending that the High Court ought to have directed the writ petitioners
to approach the Parliament for appropriate amendments to the Act instead of -T ~
H directing the Election Commission of India to implement the same. I.A. for
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.\l. SHAH, J.] 705
intervention is granted. A
Further, People's Union for Civil Liberties (PUCL) has filed Writ Petition
No. 294 of 2001 under Article 32 of the Constitution praying that writ, order
or direction be issued to the respondents- (a) to bring in such measures which
provide for declaration of assets by the candidate for the elections and for
such mandatory declaration every year during the tenure as an elected B
representative as MP/MLA; (b) to bring in such measures which provide for
declaration by the candidate contesting election whether any charge in respect
of any offence has been framed against him/her; and (c) to frame such
guidelines under Article 141 of the Constitution by taking into consideration
l 70th Report of Law Commission of India. C
SUBMISSIONS:

We have heard the learned counsel for the parties at length. Mr. Harish
N. Salve, learned Solicitor General appearing for Union of India submitted that
till suitable amendments are made in the Act and Rules thereunder, the High D
' Court should not have given any direction to the Election Commission. He
referred to various Sections of the Act and submitted that Section 8 provides
for disqualification on conviction for certain offences and Section 8A provides
for disqualification on ground of corrupt practices. Section 32 provides
nomination of candidate for election if he is qualified to be chosen to fill that
seat under the provisions of the Constitution and the Act or under the E
provisions of the Government of Union Territories Act, 1963. Thereafter,
elaborate procedure is prescribed for presentation of nomination paper and
requirements for a valid nomination. Finally, Section 36 provides for scrutiny
of nominations and empowers the returning officer to reject any nomination
on the following grounds
F
(a) that on the date fixed for the scrutiny of nominations the candidate
either is not qualified or is disqualified for being chosen to fill the
seat under any of the following provisions that may be applicable,
namely

Articles 84, l 02, 173 and 191, G
Part II of this Act and sections 4 and 14 of the Government of
Union Territories Act, 1963 (20 of 1963); or

(b) that there has been a failure to comply with any of the provisions
of Section 33 or Section 34; or H
706 SUPREME COURT REPORTS (2002] 3 S.C.R.

A (c) that the signature of the candidate or the proposer on the
nomination paper is not genuine.

It is his submission that it is for the political parties to decide whether
such amendments should be brought and carried out in the Act and the
Rules. He further submitted that as the Act or the Rules nowhere disqualify
B a candidate for non-disclosure of the assets or pending charge in a criminal
case and, ther, .f"ore, directions given by the High Court would be of no
conseq'" -,,._•; fllld such directions ought not to have been issued.

Supplementing the aforesaid submission, Mr. Ashwini Kumar, learned
senior counsel appearing on behalf of intervenor-Indian National Congress
C submitted that the Constituent Assembly had discussed and negatived
requirement of educational qualification and possession of the assets to
contest election. For that purpose, he referred to the Debates in the Constituent
Assembly. He submitted that 3/4th of the population is illiterate and providing
education as a qualification for contesting election was not accepted by the
D Constituent Assembly. Similarly, prescribing of property qualification for the
candidates to contest election was also negatived by the Constituent Assembly. r.:;
He, therefore, submitted that furnishing of information regarding assets and
educational qualification of a candidate is not at all relevant for contestiQg
election and even for casting votes. Voters are not influenced by the
educational qualification or by possession of wealth by a contesting candidate.
E It is his say that the party whom he represents is interested in purity of
election and wants to stop ·entry of criminals in politics or its criminalisation
but it is for the Parliament to decide the said question. It is submitted that
delicate balance is required to be maintained with regard to the jurisdiction
of the Parliament and that of Courts and once the Parliament has not amended
F the Act or the Rules despite the recommendation made by the Law Commission
or the report submitted by the Vohra Committee, there was no question of
giving any direction by the High Court to the Election Commission.

Mr. K.K. Venugopal, learned senior counsel appearing on behalf of
Election Commission exhaustively referred to the counter affidavit filed on
G behalf of Election Commission. At this stage, we would refer to some part
from the said affidavit. It is stated that issue of 'persons with criminal
background' contesting election has been engaging the attention of the
Election Commission of India for quite some time; even Parliament in the
debates on 50 years of independence and the resolution passed in its special
Session in August, 1997 had shown a great concern about the increasing
H criminalisation of politics; it is widely believed that there is criminal nexus
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 707

between the political parties and anti-social elements which is leading to A
criminalisation of politics; the criminals themselves are now joining election
fray and often even getting elected in the process. Some of them have even

-·
adorned ministerial berths and, thus, law breakers have become law makers.
The Commission has suggested that candidate should be required to furnish
infonnation in respect of-
B
(a) all cases in which he has been convicted of any offence and.
punished with any kind of imprisonment or amount of fine, and
whether any appeal or application for review is pending in respect
of any such cases of conviction, and

(b) all pending cases in which he is involved before any court of law
c
in any offence, punishable with imprisonment for two years or
more, and where the appropriate court has on prima facie
satisfaction framed the charges against him for proceeding with
the trial.
D
For declaration of assets, it has been suggested by the Election
Commission that candidate should be asked to disclose his assets, all immovable
... and movable properties which would include cash, bank balances, fixed
.> deposits and other savings such as shares, stocks, debentures etc. Candidate
also should be directed to disclose for voters' information, not only his assets
but his liabilities like over-dues to public financial institutions and government E
dues and charges on his/her properties.

For other directions issued by the High Court, it has been pointed out
that it is for the political parties to project the capacity and capability of a
candidate and that directions issued by the High Court are required to be set F
aside. Finally, the Election Commission has suggested as under:-

"!. Each candidate for election to Parliament or a State Legislature
should submit, along with his nomination paper, a duly sworn affidavit,
for the truth of which he is liable, as a necessary part of his nomination
paper, furnishing therein, information on the following aspects in G
relation to his candidature:

(i) whether the candidate is convicted of any offence in any case in
the past, and punished with imprisonment or fine; if so, the details
thereof, together with the details of any pending appeals or
applications for revision in any such cases of conviction; H
708 SUPREME COURT REPORTS [2002] 3 S.C.R.

A (ii) whether the candidate is accused in any pe~ing case, of any
offence punishable with imprisonment for two years or more, and
in which charges have been framed against him by the competent
court of law, if so, the details thereof, together with the details of
any pending appeals or applications for revision in respect of the
charges framed in any such c~ses;
B
(iii) whet'ier the candidate is an income tax and/or wealth tax assessee
:::;·,a has been paying his tax(es) and filing his returns regularly,
wherever he is liable, and if so, the financial year for which the
last income tax/wealth tax return has been filed;
'f- ~

c (iv) the liabilities of the candidate, his/her spouse and minor children;
that is to say, over-dues to any public financial institutions, any
government dues, and charges on his/her properties;
(v) the educational qualifications of the candidate.

II. The information by each candidate in respect of all the foregoing
D aspects shall be furnished by the candidate in a format to be prescribed
by the Election Commission and shall be supported by a duJy sworn
affidavit, making him responsible for the correctness of the information
so furnished and liable for any false statement.

III. The information so furnished by each candidate in the prescribed
E format and supported by a duly sworn affidavit shall be disseminated
by the Election Commission, through the respective Returning Officers,
by displaying the same on the notice board of the Returning Officer
and making the copies thereof available freely and liberally to all other
contesting candidates and the representatives of the print and
F electronic media.

If any rival candidate furnishes information to the contrary, by means
of a duly sworn affidavit, then such affidavit of the rival candidate
may also be disseminated alongwith the affidavit of the candidate
concerned.
G The Court may lay down that it would be mandatory for each
candidate for election to Parliament or State Legislature, to file along
with his nomination paper, the aforesaid duly sworn affidavit, furnishing
therein the information on the aspects detailed above and that the
nomination paper of such a candidate who fails or refuges to file the
H required affidavit or files an incomplete affidavit shall be deemed to
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH. J.] 709

be an incomplete non1ination paper within the meaning of section A
33(1) of the Representation of the People Act, 1951 and shall suffer
consequences according to law.

The aforesaid suggestions made by the Election Commission would
certainly mean that except certain modifications, Election Commission virtually
supports the directions is.sued by the High Court and that candidates must B
be directed to furnish necessary information with regard to pending criminal
cases as well as assets and educational qualification.

Mr. Rajinder Sachhar, learned senior counsel appearing on behalf of the
petitioners relied upon the decision rendered by this Court in Vineet Narain C
and Ors. v. Union of India and Anr., [1998] I SCC 226 and submitted that
considering the widespread illiteracy of the voters, and at the same time their
overall culture and character, if they are well-informed about the candidates
contesting election as M.P. or M.L.A., they would be in a position to decide
independently to cast their votes in favour of a candidate who, according to
them, is much more efficient to discharge his functions as M.P. or M.L.A. He, D
therefore, submitted that presuming that the High Court has no jurisdiction
to pass orders to fill in the gaps, this Court can do so by exercising its powers
under Article 142 which have the effect of law.

In Vineet Narain 's case (Supra), this Court dealt with the writ petitions
under Article 32 of the Constitution of India brought in public interest wherein
E
allegation was against the Central Bureau of Investigation (CBI) of inertia in
matters where accusation made was against high dignitaries. Primary question
considered was-whether it was within the domain of judicial review and it
could be an effective instrument for activating the investigating process
which is under the control of the executive? While discussing the powers of F
this Court, it was observed:

"The powers conferred on this Court by the Constitution are
ample to remedy this defect and to ensure enforcement of the concept
of equality. There are ample powers conferred by Article 32 read with
Article 142 to make orders which have the effect of law by virtue of G
Article 141 and there is mandate to all authorities to act in aid of the
orders of this Court as provided in Article 144 of the Constitution. In
a catena of decisions of this Court, this power has been recognised
and exercised, if need be, by issuing necessary directions to fill the
vacuum till such time the legislature steps in to cover the gap or the H
710 SUPREME COURT REPORTS [2002] 3 S.C.R.

A executive discharges its role."

[Emphasis supplied]

In paragraph 51, the Court pointed out previous precedents for exercise
of such power:
B "In exercise of the powers of this Court under Article 32 read with
Article 142, guidelines and directions have been issued in a large
number of cases and a brief reference to a few of them is sufficient. .,.
In Erach Sam Kanga v. Union of India, [W.P. No. 2632 of 1978
decided on 20.3:1979] the Constitution Bench laid down certain
c guidelines relating to the Emigration Act. In Lakshmi Kant Pandey v.
Union of India, [1984] 2 SCC 244 (In ri:-, Foreign Adoption), guidelines
for adoption of minor children by foreigners were laid down. Similarly
in State of W.B. v. Sampat Lal, [1985] 1 SCC 317, K. Veeraswami v.
Union of India [1991] 3 SCC 655, Union Carbide Corpn. v. Union of
India, [1991 4 SCC 584, Delhi Judicial Service Association v. State
D of Gujarat, (Nadiad Case) [1991] 4 SCC 406, Delhi Development
Authority v. Skipper Construction Co. (P) Ltd., [1996] 4 SCC 622 and
Dinesh Trivedi, MP. v. Union of India, [1997] 4 SCC 306 guidelines
were laid down having the effect of law, requiring rigid compliance. In
Supreme Court Advocates-on-Record Association v. Union of India,
E (IInd Judges case) [1993] 4 sec 441, a nine-Judge Bench laid down
guidelines and norms for the appointment and transfer of Judges
which are being rigidly followed in the matter of appointments of High
Court and Supreme Court Judges and transfer of High Court Judges.
More recently in Vishaka v. State of Rajasthan, [1997] 6 SCC 241
elaborate guidelines have been laid down for observance in workplaces
F relating to sexual harassment of working women. In Vishaka (supra)
it was said (SCC pp. 249-50, para 11)

"11. The obligation of this Court under Article 32 of the Constitution
for the enforcement of these fundamental rights in the absence of
legislation must be viewed along with the role of judiciary envisaged
G in the Beijing Statement of Principles of the Independence of Judiciary
in the LAW ASIA region. These principles were accepted by the Chief
Justices of Asia and the Pacific at Beijing in 1995 (As amended at
Manila, 28th August, 1997) as those representing the minimum
standards necessary to be observed in order to maintain the
H independence and effective functioning of the judiciary. The objectives
J,
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 7J.1

• A of the judiciary mentioned in the Beijing Statement are: A
"Objectives of the Judiciary:

10. The objectives and functions of the Judiciary include the
following:
(a) to ensure that all persons are able to live securely under the rule B
of law;
(b) to promote, within the proper limits of the judicial function, the
observance and the attainment of human rights; and
(c) to administer the law impartially among persons and between C
persons and the State."

Thus, an exercise of this kind by the court is now a well-settled practice
which has taken firm roots in our constitutional jurisprudence. This exercise
,- is essential to fill the void in the absence of suitable legislation to cover the
field.
D
Ms. Kamini Jaiswal, learned counsel appearing on behalf of respondents
. .,, in support of the decision rendered by the High Court referred to the decision
in Kihoto Hollohan v. Zachillhu and Ors., [1992] Supp 2 SCC 651 wherein
while considering the validity of the Tenth Schedule of the Constitution, the
Court observed "democracy is a part of the basic structure of our Constitution; E
and rule ·of law, and free and fair elections are basic features of democracy.
One of the postulates of free and fair elections is provisions for resolution
of election disputes as also adjudication of disputes relating to subsequent
dis-qualifications by an independent authority". She, therefore, contended
that for free and fair elections and for survival of democracy, entire history,
background and the antecedents cf the candidate are required to be disclosed F
to the voters so that they can judiciously decide in whose favour they should
vote; otherwise, there would not be true reflection of electoral mandate. For
interpreting Article 324, she submitted that this provision outlines broad and
general prinCiples giving power to the Election Commission and it should be
interpreted in a broad perspective as held by this Court in various decisions. G
In these matters, questions requiring consideration are-

I. Whether Election Commission is empowered to issue directions
as ordered by the High Court?
2. Whether a voter-a citizen of this country has right to get relevant H
712 SUPREME COURT REPORTS [2002] 3 S.C.R.

A information, such as, assets, qualification and involvement in
offence for being educated and informed for judging the suitability
of a candidate contesting election as MP or MLA?

For deciding the aforesaid questions, we would proceed on the following
accepted legal position.
B
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 the
Parliament to amend the Act and the Rules. It is also established law that no
direction can be given, which would be contrary to the Act and the Rules.

C However, it is equally settled that in case when the Act or Rules are
silent on a particular subject and the Authority implementing the same has
constitutional or statutory power to implement it, the Court can necessarily
issue directions or orders on the said subject to fill the vacuum or void till
the suitable law is enacted.

D Further, it is to be stated that (a) one of the basic structure of our
Constitution is 'republican and democratic form of government'; (b) the
election to the House of People and the Legislative Assembly is on the basis
of adults suffrage, that is to say, every person who is citizen of India and who "'°'..,'
is not less than 18 years of age on such date as may be fixed in that behalf
E by or under any Law made by the appropriate Legislature and is not otherwise
disqualified under the Constitution or any law on the ground of non-residence,
unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to
be registered as a voter at any such election (Article 326); and (c) holding
of any asset (immovable or movable) or any educational qualification is not
the eligibility criteria to contest election; and (d) Under Article 324, the
F superintendence, direction and control of the 'conduct of all elections' to
Parliament and to the Legislature of every State vests in Election Commission.
The phrase 'conduct of elections' is held to be of wide amplitude which
would include power to make all necessary provisions for conducting free and
fair elections.

G Question No. I

Whether Election Commission is empowered to issue directions as
ordered by the High Court?

For health of democracy and fair election, whether the disclosure of
H assets by a candidate, his/her qualification and particulars regarding
)
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.l 713
involvement in criminal cases are necessary for informing voters, may be A
illiterate, so that they can decide intelligently, whom to vote? In our opinion,
the decision of even illiterate voter, if properly educated and informed about
the contesting candidate, would be based on his own relevant criteria of
-· selecting a candidate. In democracy, periodical elections are conducted for
having efficient governance for the country and for the benefit of citizens-
voters. In a democratic form of government, voters are of utmost importance. B
They have right to elect or re-elect on the basis of the antecedents and past
-,;.. performance of the candidate. He has choice of deciding whether holding .of

- .., educational qualification or holding of property is relevant for electing or re-
electing a person to be his representative. Voter has to decide whether he
should cast vote in favour of a candidate who is involved in criminal case.
For maintaining purity of elections and healthy democracy, voters are required
c
to be educated and well informed about the contesting candidates. Such
information would include assets held by the candidate, his qualification
including educational qualification and antecedents of his life including
whether he was involved in a criminal case and if the case is decided-its
result, if pending whether charge is framed or cognizance is taken by the D
Court? There is no necessity of suppressing the relevant facts from the
' _. voters.
.. The Constitution Bench of this Court in Mohinder Singh Gill v. The
Chief Election Commissioner, New Delhi, [1978] l SCC 405 while dealing with
a contention that Election Commission has no power to cancel the election
E
and direct re-poll, referred to the pervasive philosophy of democratic elections
which Sir Winston Churchill vivified in matchless word:

"At the bottom of all tributes paid to democracy is the little man,
walking into a little booth, with a little pencil, making a little cross on
F
a little bit of paper-no amount of rhetoric or voluminous discussion
• can possibly diminish the overwhelming importance of the point.

If we may add, the little, large Indian shall not be hijacked from
the course of free and fair elections by mob muscle methods, or subtle
perversion of discretion by men 'dressed in little, brief authority'. G
For 'be you ever so high, the /al1/ is above you'.

The moral may be stated with telling terseness in the words of
William Pitt: 'Where laws end, tyranny begins'. Embracing both these
.., mandates and emphasizing their combined effect is the elemental law
and politics of Power best expressed by Benjamin Disraeli [Vivian H
~
714 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Grey, BK VI Ch 7]:

I repeat ... that all power is a trust that we are accountable for
its exercise that, from the people and for the people, all springs, and
all must exist." ----
Further, the Court in (para 23) observed thus:
B
"Democracy is government by the people. It is a continual
participative operation, not a cataclysmic, periodic exercise. The .~-

little man, in his multitude, marking his vote at the poll does a social )-
audit of his Parliament plus political choice of this proxy. Although
......
c the full flower of participative Government rarely blossoms, the minimum
credential of popular government is appeal to the people after every
term for a renewal of confidence. So we have adult franchise and
general elections as constitutional compulsions. 'The right of election
is the very essence of the constitution' (Junius). It needs little argument
to hold that the heart of the Parliamentary system is free and fair
D elections periodically held, based on adult franchise, although social
and economic democracy may demand much more." ..
.lo.
Thereafter, the Court dealt with the scope of Article 324 and observed
(in para 39) thus:
...
E " ........Article 324, in our view, operates in areas left unoccupied by
legislation and the words 'superintendence, direction and control, as
well as 'conduct of all elections', are the broadest tem1s .. "

The Court further held: '

.
~

"Our conclusion on this limb of the contention is that Article 324
F ;j
is wide enough to supplement the powers under the Act, as here, but " '
subject to the several conditions on its exercise we have set out."

The Court also held (in para 77) thus:

"We have been told that wherever the Parliament has intended a
G hearing it has said so in the Act and the rules and inferentially where
it has not specificated it is otiose. There is no such sequitur. The
silence of a statute has no exclusionary effect except where it flows
from necessary implication. Article 324 vests a wide power and where .., ,,
some direct consequence on candidate emanates from its exercise we ~

H must read this functional obligation."
)
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 715

In concluding portion of paragraph 92, the Court inter alia observed A
thus:

"I (b) Election, in this context, has a very wide connotation commencing
from the Presidential notification calling upon the electorate to
elect and culminating in the final declaration of the returned
candidate. B
2 (a) The Constitution contemplates a free and fair election and vests

-
comprehensive responsibilities of superintendence, direction and
control of the conduct of elections in the Election Commission.
This responsibility may cover powers, duties and functions of
many sorts, administrative or other, depending on the C
circumstances.

(b) Two limitations at least are laid on its plenary character in the
exercise thereof. Firstly, when Parliament or any State Legislature
has made valid law relating to or in connection with elections, the
Commission, shall act in conformity with, not in violation of, such D
provisions but where such law is silent Article 324 is a reservoir

' . of power to act for the avowed purpose of, not divorced from,
pushing forward a free and fair election with expedition"

In concurring judgment, Goswami, J. with regard to Article 324 observed
(in para 113) thus: E

" ...... Since the conduct of all elections to the various legislative
bodies and to the offices of the President and the Vice-President is
vested under Article 324 (l) in the Election Commission, the framers
of the Constitution took care to leaving scope for exercise ofresiduary F
power by the Commission, in its 01vn right, as a creature of the
Constitution, in the infinite variety of situations that may emerge from
time to time in such a large democracy as ours. Every contingency
could not be foreseen, or anticipated with precision. That is why there
is no hedging in Article 324. The Commission may be required to cope
with some situation which may not be provided for in the enacted G
laws and the rules."

[Emphasis supplied]

'I' The aforesaid decision of the Constitution Bench unreservedly lays
down that in democracy the little man voter has overwhelming importance on H
716 SUPREME COURT REPORTS (2002] 3 S.C.R.

A the point and the little-large Indian (voter) should not be hijacked from the
course of free and fair elections by subtle perversion of discretion of casting
votes. In a continual participative operation of periodical election, the voter
does a social audit of his candidate and for such audit he must be well
informed about the past of his candidate. Further, Article 324 operates in areas
B left unoccupied by legislation and the words 'superintendence, direction and
control'. as well as 'conduct of all elections' are the broadest terms. The
silence of statute has no exclusionary effect except where it flows from
necessary implication. Therefore, in our view, it would be difficult to accept
the contention raised by Mr. Salve, learned Solicitor General and Mr. Ashwini
Kumar, learned senior counsel appearing on behalf of Intervenor that if there
-...
C is no provision in the Act or the Rules, the High Court ought not to have
issued such directions to the Election Commission. It is settled that the power
of the Commission is plenary in character in exercise thereof. In a statutory
provisions or rules, it is known that every contingency could not be foreseen
or anticipated with precision, therefore, Commission can cope with situation
where the field is unoccupied by issuing necessary orders.
D
Further, this Court in Kanhiya Lal Omar v. R.K. Trivedi and Ors. [1985]
4 SCC 628 dealt with the Constitutional validity of the Election Symbols
(Reservation and Aliotment) Order, 1968 which was issued by the Election
Commission in its plenary exercise of power under Article 324 of the Constitution
E read with Rules 5 and 10 of the Conduct of Election Rules, 1961. The challenge
was on the ground that Symbols Order which is legislative in character could
not be issued by the Commission because the Commission is not entrusted
by law the power to issue such an order regarding the specification, reservation
and allotment of symbol that may be chosen by the candidates at elections
in parliamentary and Assembly constituencies. It was urged that Article 324
F of the Constitution which vests the power of superintendence, direction and
control of all elections to Parliament and to the Legislature of a State in the
Commission cannot be construed as conferring the power on the Commission
to issue the Symbols. The Court negatived the said contention and pertinently
observed that "the word 'elections' in Article 324 is used in a wide ser.se so
G as to include 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 result of the process. India is a country which consists of millions of
voters. Although they are quite conscious of their duties politically,
unfortunately, a large percentage of them are still illiterate." The Court in
paragraph 16 held:
H
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS IM.B. SHAH, J.] 717

"16. Even if for any reason, it is held that any of the provisions A
contained in the Symbols Order are not traceable to the Act or the
Rules, the power of the Commission under Article 324 (/) of the
Constitution which is plenary in character can encompass all such
provisions. Article 324 of the Constitution operates in areas left
unoccupied by legislation and the words 'superintendence', 'direction' B

-
and 'control' as well as "conduct of all elections" are the broadest
terms which would include the power to make all such provisions.
{See Mohinder Singh Gill v. Chief Election Commissioner, New Delhi,
[1978] l SCC 405 and A.C. Jose v. Sivan Pillai, [1984] 2 SCC 656.

The Court further observed:
c
''. .... While construing the expression "superintendence, direction and
control" in Article 324 (1), one has to remember that eyery norm which
lays down a rule of conduct cannot possibly be elevated to the
position of legislation or delegated legislation. There are some
authorities or persons in certain grey areas who may be sources of D
rules of conduct and who at the same time cannot be equated to
authorities or persons who can make law, in the strict sense in which
it is understood in jurisprudence. A direction may mean an order
issued to a particular individual or a precept which many may have
to follow. It may be a specific or a general order. One has also to
remember that the source of power in this case is the Constitution, the E
highest law of the land, which is the repository and source of all legal
powers and any power granted by the Constitution for a specific
purpose should be construed liberally so that the object for which the
power is granted is effectively achieved. Viewed from this angle it
cannot be said that any of the provisions of the Symbols Order F
suffers from want of authority on the part of the Commission, which
has issued it."

Thereafter, this Court in Common Cause (A Registered Society) v. Union of
India and Ors., [1996] 2 SCC 752 dealt with election expenses incurred by
political parties and submission of return and the scope of Article·324 of the G
Constitution, where it was contended that cumulative effect of the three
statutory provisions, namely, Section 293-A of the Companies Act, 1956,
Section 13-A of the Income Tax Act, 1961 and Section 77 of the Representation
of the People Act, 1951, is to bring transparency in the election funding and

... people of India must know the source of expenditure incurred by the political
parties and by the candidates in the process of election. It was contended H
718 SUPREME COURT REPORTS [2002] 3 S.C.R.

A that election in the country are fought with the help of money power which- A.
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 and that this vicious circle has totally polluted the basic democracy
in the country. The Court held .that purity of election is fundamental to
....
democracy and the Commission can ask the candidates about the expenditure
B incurred by the candidates and by a political party and for this purpose. The
Court also held:
•
" ........ The political parties in their quest for power spend more ).-
~

than one thousand crore of rupees on the General Election (Parliament
alone), yet nobody accounts for the bulk of the money so spent and
c there is no accountability anywhere. Nobody discloses the source of
the money. There are no proper accounts and no audit. From where
does the money come nobody knows. In a democracy where rule of
law prevails this type of naked display of black money, by violating
the mandatory provisions of law, cannot be permitted."
D
Thereafter, the Court observed that under Article 324, the Commission can
issue suitable directions to maintain the purity of election and in particular ""-
to bring transparency in the process of election. The Court also held (paragraph
Jf '
26) thus: -

E "Superintendence and control over the conduct of election by the
Election Commission include the scrutiny of all expenses incurred by
a political party, a candidate or any other association or body of
persons or by any individual in the course of the election. The
expression "Conduct of election" is wide enough to include in its
sweep, the power to issue directions - in the process of tlie conduct
F
of an election - to the effect that the political parties shall submit to
the Election Commission, for its scrutiny, the details of the expenditure
incurred or authorised by the parties in connection with the election
of their respective candidates."

G The Court further observed that Constitution has made comprehensive
provision under Article 324 to take care of surprise situations and it operates
in areas left unoccupied by legislation.

Question No. 2

H Right to know about the candidates contesting elections.
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 719

Now we would refer to various decisions of this Court dealing with A
citizens' right to know which is derived from the concept of 'freedom of
speech and expression'. The people of the country have a right to know every
. public act, everything that is done in a public way by the public functionaries.
MPs or MLAs are undoubtedly public functionaries. Public education is
essential for functioning of the process of popular government and to assist B

-
the discovery of truth and strengthening the capacity of an individual in
participating in decision making process. The decision making process of a
voter would include his right to know about public functionaries who are
required to be elected by him.

In State of Uttar Pradesh v. Raj Narain and Ors., [1975] 4 SCC 428, the C
Constitution Bench considered a question-whether privilege can be claimed
by the Government of Uttar Pradesh under Section 123 of the Evidence Act
in respect of what has been described for the sake of brevity to be the Blue
Book summoned from the Government of Uttar Pradesh and certain documents
summoned from the Superintendent of Police, Rae Bareli, Uttar Pradesh? The D
Court observed that "the right to know which is derived from the concept of
freedom of speech, though not absolute, is a factor which should make one
wary, when secrecy is claimed for transactions which can, at any rate, have
no repercussion on public security". The Court pertinently observed as under:

"In a government of responsibility like ours, where all the agents E
of the public must be responsible for their conduct, there can be but
few secrets. The people of this country have a right to know every
public act, everything that is done in a public way, by their public
functionaries. They are entitled to know the particulars of every
public transaction in all its bearing ....... "
F
- •
In Indian Express Newspapers (Bombay) Private Ltd. and Ors. etc. v.
Union of India and Ors. [1985] 1 SCC 641, this Court dealt with the validity
of customs duty on the newsprint in context of Article 19(1)(a). The Court
observed (in para 32) thus:

"The purpose of the press is to advance the public interest by G
publishing facts and opinions without which a democratic country
cannot make responsible judgments ....... "

The Court further referred (in para 35) the following observations made
by this Court in Ramesh Thappar v. State of Madras, [1950] SCR 594: - H
720 SUPREME COURT REPORTS [2002] 3 S.C.R.

A "........ (The freedom) lay at the foundation of all democratic
organisations, for without free political discussion no public edu~ation,
so essential for the proper functioning of the processses of popular

B
government, is possible. A freedom of such amplitude might involve
risks of abuse (But) "it is better to leave a few of its noxious branches
to their luxuriant growth, than, by pruning them away, to injure the
-
vigour of those yielding the proper fruits".

Again in paragraph 68, the Court observed: -

" .......... The public interest in freedom of discussion (of which the
freedom of the press is one aspect) stems from the requirement that
c members of a democratic society should be sufficiently informed that
they may influence intelligently the decisions which may affect
themselves." (Per Lord Simon of Glaisdale in Attorney-General v.
Times Newspapers Ltd., (1973) 3 All ER 54). Freedom of expression,
as learned writers have observed, has four broad social purposes to
D serve: (i) it helps an individual to attain self-fulfilment, (ii) it assists
in the discovery of truth, (iii) it strengthens the capacity of an individual
in participating in decision-making and (iv) it provides a mechanism
by which it would be possible to establish a reasonable balance
between stability and social change. All members of society should
be able to form their own beliefs and communicate them freely to
E
others. In sum, the fundamental principle involved here is the people's
right to know. Freedom of speech and expression should, therefore,
receive a generous support from all those who believe in the
participation of people in the administration ........... "

F From the afore-quoted paragraph, it can be deduced that the members
of a democratic society should be sufficiently informed so that they may
influence intelligently the decisions which may affect themselves and this
would include their decision of casting votes in favour of a particular candidate.
If there is a disclosure by a candidate as sought for then it would strengthen
G the voters in taking appropriate decision of casting their votes.

In Secretary, Ministry of Information and Broadcasting, Government of
India and Ors. v. Cricket Association of Bengal and Ors., [ 1995] 2 SCC 161,
this Court considered the question of right to telecast sports event and after
considering various decisions, the Court referred to Article 10 of the European
1
H Convention on Human Rights which inter alia states as follows (para 36):
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 721

"IO.I. Everyone has the right to freedom of expression. This right A
shall include freedoin to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers."

Thereafter, the Court summarised the law on the freedom of speech and
expression under Article 19(l)(a) as restricted by Article 19(2) thus: - B
"The freedom of speech and expression includes right to acquire
information and to disseminate it. Freedom of speech and expression
is necessary, for self-fulfilment. It enables people to contribute to
debate on social and moral issues. It is the best way to find a truest
model of anything, since it is only through it that the widest possible C
range of ideas can circulate. It is the only vehicle of political discourse
so essential to democracy. Equally important is the role it plays in
facilitating artistic and scholarly endeavours of all sorts .. "

The Court dealt with the right of telecast and [in paragraph 75] held D
thus: -

"In a team event such as cricket, football, hockey etc., there is
.... both individual and collective expression. It may be true that what is
protected by Article 19(1 )(a) is an expression of thought and feeling
and not of the physical or intellectual prowess or skill. It is also true E
that a person desiring to telecast sports events when he is not himself
a participant in the game, does not seek to exercise his right of self-
expression. However, the right to freedom of speech and expression
also includes the right to educate, to inform and to entertain and
also the right to be educated, informed and entertained The former
is the right of the telecaster and the latter that of the viewers. The F
right to telecast sporting event will therefore also include the right to
educate and inform the present and the prospective sportsmen
interested in the particular game and also to inform and entertain the
lovers of the game. Hence, when a telecaster desires to telecast a
sporting event, it is incorrect to say that the free-speech element is G
absent from his right."

The Court thereafter (in paragraph 82) held:

"True democracy cannot exist unless all ciiizens have a right to
participate in the affairs of the polity of the country. The right to
participate in the affairs of the country is meaningless unless the H
722 SUPREME COURT REPORTS (2002) 3 S.C.R.

A citizens are well informed on all sides of the issues, in respect of
which they are called upon to express their views. One-sided
information, disinformation, misinformation and non-information all
equally create an uninformed citizenry which makes democracy a farce
when medium of information is monopolised either by a partisan
central authority or by private individuals or oligarchic organisations.
B This is particularly so in a country like ours where about 65 per cent
of ~he population is illiterate and hardly 1Yi per cent of the population
has an access to the print media which is not subject to pre-
censorship."

C The Court also observed-"a successful democracy posits an 'aware'
citizenry."

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 l 9(l)(a), we
fail to understand why the right of a citizen/voter-a little-man to know about
D the antecedents of his candidate cannot be held to be a fundamental right
under Article l9(l)(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,
E 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 the 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'
F 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.

In Dinesh Trivedi, M.P. and Ors. v. Union of India and Ors., [ 1997) 4
SCC 306, the Court dealt with a petition for disclosure of a report submitted
G by a Committee established by the Union of India on 9th July 1993 which was
chaired by erstwhile Home Secretary Shri N.N. Vohra which subsequently
came to be popularly known as Vohra Committee. During July 1995, a known
political activist Naina Sahni was murdered and one of the persons arrested
happened to be an active politician who had held important political posts
H and newspaper report published a series of articles on the criminalisation of
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 723

politics within the country and the growing links between political leaders and A
mafia members. The attention of the masses was drawn towards the existence
of the Vohra Committee Report. It was suspected that the contents of the
Report were such that the Union Government was reluctant to make it public.

In the said case, the Court dealt with citizen's rights to freedom of
infonnation and observed "in modem constitutional democracies, it is axiomatic B
that citizens have a right to know about the affairs of the Government which,
having been elected by them, seek to formulate sound policies of governance
aimed at their welfare". The Court also observed "democracy expects openness
and openness is concomitant of a free society and the sunlight is a best
disinfectant". C
Mr. Ashwini Kumar, learned senior counsel appearing on behalf of the
intervenor submitted that the aforesaid observations are with regard to citizen's
right to know about the affairs of the Government, but this would not mean
that citizens have a right to know the personal affairs of MPs or MLAs. In
our view, this submission is totally misconceived. There is no question of D
knowing personal affairs of MPs or MLAs. The limited information is-whether
the person who is contesting election is involved in any criminal case and
if involved what is the result? Further there are widespread allegations of
corruption against the persons holding post and power. In such a situation,
question is not of knowing personal affairs but to have openness in democracy
for attempting to cure cancerous growth of corruption by few rays of light.
E
Hence, citizens who elect MPs or MLAs are entitled to know that their
representative has not misconducted himself in collecting wealth after being
elected. This information could be easily gathered only if prior to election, the
assets of such person are disclosed. For this purpose, learned counsel Mr.
Murlidhar referred to the practice followed in the United States and the form F
which is required to be filled in by a candidate for Senate which provides that
such candidate is required to disclose all his assets and that of his spouse
and dependants. The form is required to be re-filled every year. Penalties are
also prescribed which include removal from ballot.

Learned counsel Mrs. Kamini Jaiswal referred to All India Service G
(Conduct) Rules, 1968 and pointed out that a member of All India Service is
required to disclose his/her assets including that of spouse and the dependant
children. She referred to Rule 16 of the said Rules, which provides for
declaration of movable, immovable and valuable property by a person who
becomes Member of the Service. Relevant part of Rule 16 is as under: H
724 SUPREME COURT REPORTS [2002] 3 S.C.R.

A "16. (1) Every person shall, where such person is a member of the
Service at the commencement of these rules, before such date after
such commencement as may be specified by the Government in this
behalf, or, where such person becomes a member of the Service after
commencement, on his first appointment to the Service submits a
return of his assets and liabilities in such form as may be prescribed
B by the Gpvemment giving the full particulars regarding: -

(a) the immovable µroperty owned by him, or inherited or acquired by
him or held by him on lease or mortgage, either in his own name
or in the name of any member of his family or in the name of any
other person;
c
(b) shares, debentures, postal Cumulative Time Deposits and cash
including bank deposits inherited by him or similarly owned,
acquired or held by him;
(c) other movable property inherited by him or similarly owned,
D acquired or held by him; and o
(d) debts and other liabilities incurred by him directly or indirectly."

Such officer is also required to submit an annual return giving full
particulars regarding the immovable and movable property inherited by him
or owned or acquired or held by him on lease or mortgage either in his own
E name or in the name of any member of his family or in the name of any other
person.

It is also submitted that even the Gazetted Officers in all government
services are required to disclose their assets and thereafter to furnish details
of any acquisition of property amiually. In our view, it is rightly submitted that
F .,I... .....
in a democratic form of government, MP or MLA is having higher status and
duty to the public. In P. V. Narasimha Rao v. State (CBJISPE), [1998] 4 SCC
626], the Court inter alia considered whether Member of Parliament is a public
servant? The Court [in para I 62] held thus: -

G "A public servant is "any person· who holds an office by virtue
of which he is authorised or required to perform any public duty". Not
only, therefore, must the person hold an office but he must be
authorised or required by virtue of that office to perform a public duty.
Public duty is defined by Section 2(b) of the said Act to mean "a duty
in the discharge of which the State, the public or that community at
H large has an interest". Jn a democratic form of government it is the
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, J.] 725

Member of Parliament or a State Legislature who represents the A
people of his constituency in the highest lawmaking bodies at the
Centre and the State respectively. Not only is he the representative
of the people in the process of making the laws that will regulate their
society, he is their representative in deciding how the funds of the
Centre and the State shall be spent and in exercising control over the
executive. It is difficult to conceive of a duty more public than this B
or of a duty in which the State, the public and the community at large
would have greater interest.. ... "

The aforesaid Jnderlined portion highlights the important status of MP
or State Legislature. C
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 D
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 E
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 F
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 LAW ASIA 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 G
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.
H
726 SUPREME COURT REPORTS [2002] 3 S.C.R.

A To sum up the legal and constitutional position which emerges from the
aforesaid discussion, it can be stated that: ~

I. 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
B 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
c 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
D 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 ,.i.

Kanhiya Lal Omar's case, the Court construed the expressions
~"'
"superintendence, direction and control" in Article 324( l) and
E 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
F consists of several stages and it embraces many steps, some of
which may have an important bearing on the process of choosing -4. ...
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
G 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
H
U.0.L v. ASSOCIATION FOR DEMOCRATIC REFORMS [M.B. SHAH, l.] 727

even in case where he has collected tons of money. A
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- B
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 C
include transparency of a candidate who seeks election or re-
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 D
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: - E
"(!)Everyone shall have the right to hold opinions without
interference.

(2) Everyone shall have the fight to freedom of expression; this
right shall include freedom to seek, receive and impart F
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 G
executive is left unoccupied detrimental to the public interest, this
Court would have ample jurisdiction under Article 32 read with
Articles 141 and I 42 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 H
728 SUPREME COURT REPORTS [2002) 3 S.C.R.

A 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
B 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
C 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
D 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: .....
<:
(I) Whether the candidate is convicted/acquitted/discharged of any
E 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
F or cognizance is taken by ths Court of law. If so, the details
thereof. -4. ....

(3) The assets (immovable, movable, bank balances etc.) of a candidate
and of his/her spollse and that of dependants.

G (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 El~ction Commission has from time to time
H issued instructions/orders to meet with the situation where the field is
U.0.1. v. ASSOCIATION FOR DEMOCRATIC REFORMS (M.B. SHAH. J.] 729

- * 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
A

the Election Commission as early as possible and in any case within two

-- months.

In the result, Civil Appeal No. 7178 of 200 I is partly allowed and the
directions issued by the High Court are modified as stated above. Appeal B
'
stands disposed of accordingly.
~

~ Writ Petition (C) No. 294 of2001 is allowed to the aforesaid extent.
'
There shall be no order as to costs.
c
KKT. Appeal and Petition partly allowed.