Author: Tanya Bansal.
Union of India v. Association for Democratic Reforms and Another, (2002) 5 SCC 294.
NAMES OF THE PARTIES
The parties involved in this case are;
- Association for Democratic Reforms (ADR): the Association for Democratic Reforms came into existence in 1999, when a group of professors for the Indian Institute of Management (IIM) Ahmedabad filed a PIL in the Delhi High Court requesting that the information of a candidate standing in an election be made public so that the voters can make an informed choice. The ADR aims to improve the governance in India through transparency and free and fair elections. The office of ADR is located at T-95, C.L. House, 2nd Floor, Gulmohar Commercial Complex, Gautam Nagar, New Delhi.
- People’s Union for Civil Liberties (PUCL): the PUCL was founded in the year 1980, when the rights of the people were put in danger by the then regime. Hence, efforts were made to once again put some life in the previously inactive PUCLDR (People’s Union for Civil Liberties and Democratic Rights founded in 1976) and to bring about co-operation among various civil liberties groups. PUCL is now the largest human rights organisation in the country, striving to defend civil liberties and human rights of all members of society. The main office of PUCL is located at 270A, Patpar Ganj, opposite Anand Lok Apartments, Mayur Vihar-I, Delhi.
- Election Commission (EC): the Election Commission of India is a constitutional body which is responsible to conduct free and fair elections in India. The body is governed and created by the Constitution of India under Article 324. It came into existence from 26th January, 1950. The office of Election Commission is located at Nirvachan Sadan, Ashoka Road, New Delhi.
- Union of India.
Justice M.B. Shah;
Justice Bisheshwar Prasad Singh;
Justice H.K. Sema.
In a democratic set-up, nothing speaks louder than the way the elections are conducted as well as the rights and choices concentrated in the hands of the voters of that country. Keeping in view this line of thought, it becomes important to understand the picture painted by textual matrix enshrined in the constitution of such democratic republic and then comparing it with what actually happens in the everyday life and instances, i.e., differing the ideal set up from the real world. A democracy is believed to be as good as the elections and procedures followed in it. If the elections start facing troubles and criticism, it is an indicator that there needs to be an assessment of the election procedure and that there is a need for some changes. However, it would be much more effective and ensure maximum efficiency if this assessment is done by the appropriate authority suo moto, and without any upheaval from the people first.
In India, elections are handled, organised and overseen by the Election Commission of India, which is a constitutional body as under Article 324 of the Constitution of India. As guaranteed by the Constitution, the Election Commission is an independent body which enjoys complete jurisdiction over matters relating to the elections in the country, and this involves the entire process of elections, from announcements to the result as well as everything else in between. Further, one of the most applauded features of the Commission is that it is free from the influence of the government as well as other political parties. Further, the government or the ruling party, or the opposing parties cannot pressurise the Commission in any way. This feature unfortunately is only possible in an ideal scenario and exists only in texts. In the practical world, the ruling party or the opposition often question the procedures and decisions of the Commission and interfere in the workings of the Commission in a myriad of ways which range from openly challenging the election of a candidate or dragging trivial matters to the courts. This results in unrest among the public, and the failure of democratic ideals.
One such example of a current debatable issue is the people’s right to know, which is supported by the Commission as well as the Judiciary, but questioned by the political parties and the ruling party as well. The apex court has time and again highlighted the people’s right to know when deciding upon disputes related to the election and guided the commission to amend the election procedure to accommodate this right. In the long run, this reform is intended to benefit the democracy by providing means to elect an eligible and efficient ruler, who works for the welfare of the country. However, any such reform is overruled by the government by the means of some statute or by impugnment of the guidelines issued by the commission. Such acts of the government weaken the democracy which raises a red flag as to the state that the said democracy is in.
In order to curtail any such practices and to ensure that the ideals of democracy which he founding fathers of the Constitution strived to achieve are protected, many people’s organisations have come forward. One such organisation is the Association for Democratic Reforms or ADR. The ADR was born to protect the people’s right to know about the candidates that they choose as their representatives and has on many occasions brought concerns regarding the same to the notice of the Election Commission as well as the Judiciary. This is an analysis of one such landmark judgement which was the result of a gentle nudge from the Association for Democratic Reforms, and which is a crowned jewel when studying about the jurisprudence of the Right to Know, the case of Union of India v. Association for Democratic Reforms and Another.
- This case was brought to the notice of the Supreme Court through an impugned judgement of the Delhi High Court by the Union of India, which said that in order to hold a free and fair election, and to give the voters a right to choose their representative, they should be informed about the background of the candidates contesting the elections.
- Further, the high court directed the Election Commission to collect an affidavit from the candidates which contained the following information and release it to the voters: i) any case where the candidate is an accused, and whether it is pending; ii) assets in the name of the candidate, the spouse, and any person dependent on the candidate; iii) facts stating and guaranteeing the competency and suitability of the candidate to contest the election; and iv) the party which is sponsoring the candidate for the election. The appellants had contended that the Government was the competent authority to issue such guidelines and rules rather than the election commission.
- The case was originally brought by the ADR in the High Court of Delhi in 1999, seeking direction to implement the recommendations made by the Law Commission in its 170th Report and to make necessary changes under Rule 4 of the Conduct of Elections Rules, 1961.1
- However, the Court considered whether or not an elector, a citizen of the country has a fundamental right to receive information regarding the criminal activities of a candidate to the Lok Sabha or the Legislative Assembly 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.2 Upon hearing both the sides, the High Court delivered the impugned above mentioned judgement.
- Whether the Election Commission is empowered to issue directions as ordered by the High Court?
- Whether the voters have a right to know about the candidates contesting elections?
In order to decide on the above-mentioned issues, the court had to establish the requirements of a healthy democracy and the ways to achieve that. They considered that for a democracy to be deemed as healthy, voters held the utmost importance. The court said: “… the decision of even an illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate…. For maintaining purity of elections and a healthy democracy, voters are required to be educated and well informed about the contesting candidates.”
Before talking about the issue at hand, the court strengthened its view through the help of the orbiter in the case of Mohinder Singh Gill v. Chief Election Commissioner3, where the court referred to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words: (SCC p. 413, paras 2-3): “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 a little bit of paper -no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” The court emphasises on the point that the basic and foundational aspect of a democracy is the protection of the rights of the voter. Further, the court by referring to many preceding judgements and their ratio came to the conclusion that by the virtue of Article 324, the Election Commission has the power to issue order in areas where the law falls silent.
Further, as the court moves to the next issue at hand, it first and foremost mentions that the citizens’ right to know if derived from the concept of freedoms of speech and expression enshrined in Article 19 of the Constitution of India. In its initial assessment of the issue, the court opined that: “Public education is essential for functioning of the process of popular government and to assist the discovery of truth and strengthening the capacity of an individual in participating in the decision-making process.” While referring to the decision of the court in the case of State of Uttar Pradesh v. Raj Narain4, the court has remarked “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.” Further, the court observes that when one intends to become an agent or representative of the larger unlicensed, there can be but few secrets.
In addition to this, the court explains the importance of the right to know by clarifying that in a democratic society, informing the public is an important aspect of ensuring an efficient government as the information might impact and influence the voters’ choice of a leader and this includes the actual casting of votes as well. Hence, the court decided that by the act of casting a vote, the voters are exercising their right to freedom of expression, which cannot be possible without proper information about the candidate that they are supporting. Therefore, the right to know is a right embedded in the right to freedom of expression as under Article 19 (1)(a) of the Constitution of India.
Further, the court upheld but modified certain aspects of the decision of the High Court while directing the Election Commission to call for information on affidavit by issuing an order under Article 324. The information to be submitted was listed as under:
- Whether the candidate is convicted/acquitted/discharge of any criminal offence in the past if any whether he is punished with imprisonment or fine.
- Prior to six months of Bling 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 cognisance is taken by the court of law. If so, the details thereof.
- The assets (immovable, movable bank balance, etc.) of a candidate and of his/her spouse and that of dependants.
- Liabilities, if any, particularly whether there are any over-dues of any public financial institution or government dues.
- The educational qualifications of the candidate.
This case was a contribution of the Supreme Court of India towards strengthening the democracy of the country. One of the most graceful and commendable features of India is its form of government, democracy, therefore, it becomes an unsaid rule and duty of every citizen of the country to protect this democracy and keep its flow in consonance with that of changing eras and trends. The democratic theory prevalent in India is based on the concept of human dignity. In other words, the democratic structure of India strives to protect the dignity of human beings living under it above all else. In addition to this, the rule of democracy in general falls in the area of collusion between positivism and moral relativism. This can be explained by the simple fact that in a representative democracy such as India, the people are the subjects of the law, but also the makers of the law, i.e., they choose their own rule makers by performing the simple act of casting a vote.
Because voters need to be informed to protect their interests, democrats advocate freedom of communication as stated: “the basic right of free expression is one of the principal human rights incorporated under Article 19(1)(a) of the Indian Constitution. For a free, democratic order it is a constituent element, for it is free speech that permits continuous intellectual discussion, the battle of opinions [sic] that is its vital element to decide its validity. In a certain sense, it is the basis of any freedom mentioned under Article 19, the matrix, the indispensable condition of nearly every other form of freedom.”5 Hence, from a brief overview of the mere definition of democracy, it becomes clear that to ensure human dignity, and to uphold the basic ideals of democracy, the voters or the little man should be kept in the know of the people he chooses to elect as his ruler, and to be given information about the laws he is subjecting himself to.
“Democracy is the basic feature of the Constitution. Elections conducted at regular, prescribed intervals is essential to the democratic set up as envisaged in the Constitution. So it is the basic need to protect and sustain the purity of electoral process that may take the quality, efficacy and adequacy of the machinery for resolving electoral disputes.”6 In a democracy, the elections are one of the many facets that ensure that the ideals and the basic concepts are acknowledged and respected throughout the country. Hence, for one to analyse the situation of a democracy, the first step would be to analyse the election procedure and the attitude of the people to that procedure. As Montesquieu discussed, in the case of elections in either a republic or a democracy, voters alternate between being the rulers of the country as well as being the subjects of the government. By the act of voting the people operate in a sovereign (or ruling) capacity, acting as “masters” to select their government’s “servants”.
The unique characteristic of democracies and republics is the recognition that the only legitimate source of power for a government of people, by the people and for the people is the consent of the governed- the people themselves.7 Hence, it would be safe to say that associating the case at hand with the ideals of democracy, and the value of the ‘little man’ is a welcome step. This indicates that the Judiciary not only studied the facts at hand, but also the impact any decision would have on the larger working mechanism of the country.
The elections in India are looked over and controlled by an independent Election Commission as granted by Article 324 of the Constitution of India. The Indian Constitution is derived from many other constitutions throughout the world. The constitution has its roots in constitutions of the USA, UK, Canada etc. This is how one knows that the powers and functions of the Election commission of India (ECI) are based on the Canadian model. As stated earlier, the ECI is an autonomous body formed by the constitution. The constitution bestowed the Election Commission with three basic powers: 1) Advisory powers; 2) Administrative powers; and 3) Quasi-judicial powers. The first set of powers as evident from the title empowers the commission to advise the President and the Vice-President on the competence of the cabinet ministers and who to choose or disqualify. Under the second set, the commission is given the authority to devise the regions for elections, as well as control and conduct the election. It also gives the commission us discretion to take decisions which have a direct to nexus to the procedure of the elections. Under the third set of powers however, the Commission has the jurisdiction to decide on the disputes related to elections and between two or more political parties. As the case at hand also clarified, the Election Commission is empowered by Article 324 to have superintendence, direction and control of elections. Hence it was in nature of protecting the democracy that the court decided that it was well within the rights of the commission to issue an order regarding an affidavit from the candidate willing to contest the elections.
From the above account of the powers in the hands of the Election Commission, it is fairly certain that the Commission plays quite a significant role in the democratic functioning of India. Therefore, it is also the duty of the Commission to ensure free and fair elections, where the voters get to exercise their right to vote and the leaders chosen are rightfully appointed. The importance of free and fair elections was also highlighted by the Supreme Court, As Justice Hans Raj Khanna expressly held that “the principle of free and fair election is an essential postulate of democracy which in turn is part of the basic structure of the Constitution of India.”8 In P.R Balagali v. B.D.Jatti9, the highest court viewed that the entire election law is to safeguard the purity of elections and to see that the people do not get elected by flagrant breaches of election law. The right to elect and the right to be elected are statutorily protected. In N.P Punnuswami v. Returning Officer10, Ramkumar Pandey v. Union of India11, Mohinder Singh Gill v. Chief Election Commissioner12, Election Commission v. Shivaji13. Hence, due to the importance of free and fair elections, it becomes imperative that there exists a check on the powers in the hands of the Commission and the Chief Election Commissioner. As for the restriction on the powers of the chief Election Commissioner, he forms a part of the Commission. He is not the superior person but his word and advise is valued and all the well discussed decisions of the commission are issued under his name, but he is not in a dictatorial capacity. The Supreme Court held that it is desirable to have Multi-Member Election Commission. If it is held by one man, he may become dictatorial, but the Election Commission cannot be equated with Chief Election Commissioner and do not enjoy the same Constitutional protection provided to the Chief Election Commission.14 As for the aggregate powers of the entire Election Commission, the decision of the Election Commission can be questioned in the Supreme Court of India, because of the fact that a balanced judicial approach of implementing the laws relating to franchise is the mandate of the Supreme Court, as was held in the case of Indira Nehru Gandhi v. Raj Narain.15 The supreme Court held that Election Commission, as any other Tribunal, is required to give reasons while making any order and those reasons alone will determine the validity of that order made. It is also required to give hearing to the effected parties so far as practicable.16
As we discuss the powers and duties of the Election Commission, in the present case as well, the court expanded on the degree of control and superintendence that the Commission has very the election procedure of India. The phrase “conduct of election” was expanded in its amplitude to include making all necessary provisions for conducting free and fair elections. In addition to this, having superintendence and control over elections now meant that the Commission could scrutinise the expenses made by political parties during elections, could do background checks on the candidates to ensure that the law breakers don’t become the law makers. It also meant that the political parties now had to submit to the rule and regulations aid down by the Commission in order to be able to contest elections.
Further, one of the most celebrated aspects of the case was the declaration of the voters’ right to know as a fundamental right. As a result, the candidates now had to release information that they would rather keep to themselves if there was something to hide. Therefore, to counter this new threat to their political status, the Parliament first asked for an extension to the time given by the curt, and then passed an Ordinance to nullify the new notifications sent by the Election Commission despite having publicly supported the judgement. This was due to the fear of being punished (which was well within the rights of the Commission) for giving the wrong information. Hence, the ordinance severely limited the information that was earlier compulsory to release so as to prevent the unlicensed from knowing about the candidate. The government was so concerned about voter coming to know so much about the candidate’s background that it included a clause in the ordinance which required the candidate to declare only as much information as required in the Ordinance. This clause exempted the candidate from obeying the order of the Supreme Court as well as he directives of the Election commission.17 This Ordinance was again challenge in the Court, where a three judge bench of the Supreme Court upheld that the sanctity of the voters’ right to know and declared once again that Parliament could not make laws or change existing ones in order to take away from citizens fundamental rights.18 Following this, the Election Commission released a new order in consonance with the latest order of the court.
However, despite all the efforts of the Commission, the Judiciary and the people’s organisations, the elections in India still continue to remain in a sorry state. The elections in India continue to be a hot-headed affair, where the politicians are more often than not fighting for power and dominance rather than the betterment of people. In addition to this, many of the candidates who contest the elections are either convicted criminals or money launderers who use the loopholes of the law to enter into the government. This misuse of law happens due to the fact that the voters right to know is not a statutory law and also because giving false information is nor a serious offence yet. In addition to this, bribery is also a well-known evil which maligns the Indian election procedure. To add to these grave issues is the growing number of question son the authenticity of the elections by the opposition parties. Therefore, there is an urgent need for reforms in the Indian election laws.
CONCLUSION AND SUGGESTIONS
The drafters of the Indian Constitution were an educated and well experienced group who knew that the law could not remain static. Similarly, they also knew that in rider to sustain a democracy, one would need to select the leaders wisely. This was evident in the concluding address of Dr. Rajendra Prasad, where he said: “I feel however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called upon to work it, happen to a good lot. whatever the Constitution may or may not provide, the welfare of the country will depend upon the way in which the Country administered. That will depend upon the men who administer it. If the people who are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the Country. The word “these” signifies “capable men of Character and integrity”.
Therefore, in order maintain the democratic ideals, the political leaders need to be elected on the basis of merit and not based on popularity alone. To ensure that the candidates are in fact eligible for the election, there may be the need for a test19 which checks for the competency of the candidate. This test may be divided in stages. The first stage being the registration of candidature along with the necessary detailed as per the orders of the Election Commission and the Supreme Court, followed by a background check and verification of the information. This stage would prove to be efficient in weeding it the candidates who may criminalise the governmental structure, thus ensuring that only the credible candidates remain. This may be followed by a second stage where the candidate may be ester on the basis of their knowledge about the region they are contesting for and the general issues of India. It would test the decision-making skills of the candidate in the form of a mock stimulation. The information collected from the two stages may be released to the public as per the discretion of the Election Commission, thus enabling the right to know of the voters. The third and the final stage would be the actual voting and announcement of result. This would ensure transparency and efficiency of the election procedure.
Another suggestion of tackles the current issue of transparency and right to know in elections can be using the election manifestos. The voters ought to have a right to know as to what happened to those promises made in the election manifestos. A failure on the part of the political party or for that matter a candidate in disclosing the status of the promises made in their election manifestos before the next elections deprive a voter his right to know and thereby denudes him from making an informed choice.20 Hence, the Election Commission may intervene in form of new guidelines directing the parties to inform the voters about the status of the promises made by them during the previous election, and also the average expenses they make during the election propaganda , so that the voters may decide their representative based on past actions. This may have a deterring effect on the extravagant expenses made to bribe voters and also would push the elected party to accomplish their promises if they want to be elected again.
Through elections the citizens participate in a collective process in which they express their beliefs, judgments and perceptions by casting their vote. It would not be out of place to say that voting is a means of expression and the fundamental right to speech and expression thus protects the right to vote.21 Hence, there must be efforts made to make the process of voting more efficient and secure by ensuring that no one’s stopped from casting their votes by any means of threat or violence. Stringent punishment may be devised for someone who performs or condones such acts.
The voters’ right to know can also be protected and ensured by the means of EVM. Recently the Supreme Court held that the voter has a right to know his voting in the Electronic Voting Machines (EVMs) and he can have a proof of it.22 As a result of this order, VVPAT units have been attached with the EVMs. With the help of these the voter can ensure that he has exercised his right to vote according to his/her will.23 Hence, the EVMs can be updated from time to time. Further, a database can be created of all the voters, and they can be sent a digital receipt of the date and time that their vote was cast, much like the vaccination certificates issued during the pandemic.
Hence, to conclude the analysis of the case, it can be said that the judgement was a welcome development to the strengthening of the democracy. The judgement by declaring the fundamental right to know gave a new direction towards increasing the accountability and transparency of governance in India. This judgement was followed by many more landmark cases which if incorporated with a few reforms can make India a near perfect democracy.
- Union of India v. Association for Democratic Reforms and Anr. (2002) 5 Supreme Court Cases 294.
- Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405.
- State of Uttar Pradesh v. Raj Narain (1975) 4 SCC 428.
- Andrew Reynolds, “Electoral Systems and Democratisation in Southern Africa”, OXFORD SCHOLARSHIP, 1999, p. 147.
- Kihoto Hollohan v. Zachillhu and others AIR 1993 SC 412.
- Vaibhav Goel Bhartiya, “Election Reforms in Modern Democratic Set Up: An Evaluation”, CHOTANAGPUR LAW JOURNAL, Vol. 4 No. 4 2011-12, pp. 127-137.
- P.R Balagali v. B.D.Jatti AIR 1971 SC 1348.
- N.P Punnuswami v. Returning Officer AIR 1952 SC 64.
- Ramkumar Pandey v. Union of India (1993) 2 SCC 438.
- Supra 3.
- Election Commission v. Shivaji (1998) 1 SCC 277.
- Chief Election Commission S.S.Dhanoa vs Union of India AIR 1991 SC 1745.
- Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299.
- Mohana Rao Pedada, “Election Commission of India”, INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES, Volume 2, Issue 5, 2019.
- Maja Daruwala, Bibhu Mohapatra and Venkates Nayak, “The Right to Know- A Voter’s Guide”, COMMONWEALTH HUMAN RIGHTS INITIATIVE, 2003.
- Jeevan S. Hari, “The need for a political eligibility test for elected representatives in the Indian political framework”, REVUE LIBRE DE DROIT, 2020, pp. 1-19.
- Akshay Bajad, “Election Manifestos and the Voters’ Right to Know”, JOURNAL OF POLITICS & GOVERNANCE, Vol. 8 No. 4, 2020, pp. 12-14.
- Manmeet Singh Rai, “Tracing a Meaningful Right to Vote”, INDIAN J. CONST. L, pp. 127-159.
- Chief Information Commr. & Another v. State of Manipur and Another, SLP (Civil) no 32768 -32469 /2010 order dated 12 December, 2011.
- Dr. Poonam Sharma, “Voter’s Right to Know the Antecedents of the Candidates”, INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES, volume 5, Issue 2, 2022, pp. 1334-1345.