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The Representation Of The People Act, 1951.
Mohinder Singh Gill & Anr vs The Chiief Election ... on 2 December, 1977
Article 19(1)(a) in The Constitution Of India 1949
Article 19 in The Constitution Of India 1949
O.P. Gupta vs Union Of India & Ors on 3 September, 1987

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Central India Law Quarterly
Citizens Right To Vote And The Voter'S Right To Information: A ...
CITIZENS RIGHT TO VOTE AND THE VOTER'S RIGHT TO INFORMATION: A CONSTITUTIONAL PERSPECTIVE Dr. A. Subrahmanyam * Discussionabout the electoralsystemare a regularly recurring phe- nomenon in most democracies. This isnot surprising, as the choiceforan electoral systemdeterminesthe manner in whicha country's parliament, the heart ofa democratic society,is representative. Electionsserve as a verdictin the performance of electedrepresentatives or a" an indication of voters faith in them about futute performance,Elections also serve as a forumfordiscussion of publicissuesand forexpression of publicopinion. In thiscontextvoters' rightto information hasa greater significance. Thomas M. Cooley rightly observed that suffrage is participa- tion in the Government in a representative country, it is taking part on the choice of officers, or in the decisions of public questions. The puropse is to keep the continuity of Government, and to preserve the public order and the protection of individual rights. The purpose is therefore public and general not private and individual. Citizens' Right to Vote: Free and fair election is the fundamental self evident truth of representativegovernment. The democracysuccessonly upon due con- duct of'elections ensuring reflection oftrue popularwill. Keepingthis in view,in IndianConstitution,provisions are enacted regardingstructure, powers and functions of the Election commission. the apex body ofthe machinery charged withdutyof conducting electing elections andprepara- tionof'electoral rolls. Article 325 provides for preparation of one general electoral roll for every territorial constituency for election to either House of Parliamentor of the State Legislature and further provides that no person shall be ineligible forinclusioninanysuchelectoral roll fIX anysuch con- * Associate Professor and head. Department olLaw, Andhra University Post Graduate Centre Etoberla Srikakulam. Andhra Pradesh. 230 CENTRALINDIA LAW QUARTERLY 2004 stituencyon the grounds onlyofreligion, race, caste, sex or any ofthem. Article 326 provides for the applicationofthe principleofadult suffrage. Boththe Provisionsin theirrespective fields. Adult suffrage is an invaluable right given to the citizens and experimented in India universally first time after commencement of the Constitution. Voting age has been reduced to eighteen years with a view to provide maximum opportunity to the people and mainly to involve youth. However. in India, the right to vote and contest electionis not a fundamental right.It is a right givenby the statute. I Voters Right to Know: In a democracy, the electoral process has a strategic role. The little man ofthecountrywouldhavebasicelementary right to knowfull particu- lars ofa candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted and the right ofpeople is much morefundamental and basicofsurvival ofdemocracy. The rightto got information is a democracy is recognised allthrough- out and it is a natural flowingformthe conceptofdemocracyA reference to article 19(1)and (2) ofthe International Covenanton Civiland Political Rights can be made in his regard. Moreover,article 19(1 (a) ofthe Con- stitution ofIndia provides forfreedomofspeech and expression.Voter's speech or expression in case ofelection would include casting ofvoter's that is to say. Voter speaks out or expresses by casting vote. For this purpose, informationabout the candidateto be must. Voter's (little man- citizen's)right to knowantecedents including criminalpastofhiscandidate constesting election for MP or MLA is much more fundamental and for survival ofdemocracy. The littleman maythinkoverbefore makinghischoiceelectinglaw- breakers as lawmakers.' I. Jyothi Basu V. Debi Ghosal, AIR 1982 SC 983 2. Union ofIndia v. Association for Democratic Rights, (2003) 4 SCC 399 and Mohinder Sing Gill v. Chief Election commissioner, (1978) I SCC 405 VoL XVII CITIZENS ~IGHTTOVOTEANDTHE VOTER'SRIGHTTOINFORMATION 231 In Union 0/ India v.Assoctation for Democaratic !ligbJ" t~ Election Commission isdirected to callforanaffidavit byissuing necesary orderinexercise of itspowerunderarticle 324 formeachcandidate seek- ing election to Parliamentor a StateLegislature as necessary partofhis nomination paper, furnishing therein, information onthefollowing aspects inrelationto hislhercandidature. 1. Whether the candidate is convicted /acquitted /discharged of any criminal offence in the past- if any, whether he is punished with imprisonment or tine. 2. Priorto six months of filing of nomination, whether thecandidate is accused in any pending case, of any offence punishable with, imprisonment fortwo yearsor more,and in whichchargeis framed or cognizance istakenbythecourtoflaw. Ifso the details thereof. 3. Theassets(immovable, movable, bankbalance etc.)of a candidate and ofhislher spouseand that of dependants. 4. Liabilities, if any, particularly whether thereareanyoverduesof any public financial institution or government dues. 5. Theeducational qualification ofthecandidate. The Court dealt with the scope ofarticle 324 and observed that in the areas left unoccupied by legislation and the words'superintendence, direction andcontrol'. as wellas 'conduct of allelections. arethebroadest terms".'Thishasgivento the Election Commission allpervasive powerin conducting elections. Presidential Activism : The Union Government has moved the Representative of the People (Amendment) Ordinance. 2002for nullifying thedecision of Un- ion ofIndia v Associationfordemocratic Rights. The Presidents of India. Dr. A. P.1.Abdul Kalam's decision to returnforreconsideration was. 3. Mohinder Sing Gill v. Chief Election commissioner, (1978) 1 SCC at p. 405 CENTRALINDIALAW QUARTERLY 2004 ofcourse,greatmoraleboosterfor all those who soughtpeacefultransfor- mation in our democratic set-up. He appliedthe breakson the controver- sialelectoralreform's ordinance,as the ordinancewas brazenmove over- turn the Supreme Court'sspecificdirectives on electoral reformsand war- ranted a second,unhurriedlook.'Court,as convenientlyprojected by the political class, butofupholding a fundamental right- the Rightto Informa- tion. Third Amendment to Representation of People Act, 1951 In pursuance ofthe judgment of Supreme Court and the Election Commissionissuinga notification on 28th June 2002,the Governmentof India passed the Representationof People (Amendment) Act, 2002 and added two new section i.e.Sec: 33A and Sec.33B to the Act. "Sec.33-A .Right to information-I) A candidate shall, apart from any information whichhe is required to furnish, underthis Act or therules madethereunder, inhis nominationpaperdelivered undersub- section(I) ofSection33,also furnishthe informationas to whether- i) he is accusedofany offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction; ii) he has been convicted ofan offence other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8 and sentences to imprison ment for year or more. (2) The candidate of his proposer as the case may be, shall, at the time of'deliveringjo the returning officer the nomination paper under sub-section (1)of Section33,also deliverto him an affidavitsworn bythe candidate in a prescribed form verifying the information specified in sub-section(1). VoL XVII CITIZENS RIGHT TO VOTE ANDTHE VOTER'SRIGHTTOINFORMATION 233 (3) TheReturning Officer shall, as may be after thefurnishing of information to him under sub-section (1), display theaforesaid information by affixing a copy ofthe affidavit,delivered under sub-section (2) at a conspicuous place athisoffice fortheinformation ofthere electors relating to a constituency forwhichthenomination paperisdelivered. Sec. 33-B. Candidate to furnish information only under the Act and the Rule: "Notwithstandinganything containedin anyjudgment, decree or orderofany court or anydirection, orderor any there instruc- tion issuedby the ElectionCommission. no candidateshall be liableto disclose orfurnish anysuchinformation, in respect ofhiselection, which is not requiredto be disclosed or furnished underthisActor the rulesmade thereunder". Right to vote is a constitutional right though not a fundamental right but right to make choice by means of ballot is part of freedom of expression The rightto voteforthecandidate toone'schoice is oftheessence of democratic polity. This right is recognised by our Constitutionand it is given effectto in specific form bythe Representation ofthe PeopleAct. The Constituent Assembly Debates reveal thatthe ideato treatthevoting rightas a fundamental rightwasdropped; nevertheless, it was decided to provide foritelsewhere in theConstitution. This move found itsexpression inarticle326. Section 33-B is Unconstitutional: The right to information can not befrozen and stagnated: "The constitutional validityofsection 33-Bhas to bejudged from the above angle and perspective. Considering in that light, Justice M.B. Shah, observed in Union ofIndiav. Association forDemocratic Rights, thatSec- tion 33-B does not pass the test ofconstitutionality. The reasons are 234 CENTRAL INDIA LAW QUARTERLY 2004 more Firstly, whenthe rightto secureinformation abouta contesting can- didateis recognised asan integral part ifnotfundamental rightasit oughtto be, it followsthat its ambit, cannot be changedand circumscribed forall timesto comebydeclaring thatnoinformation, other than thatspecifically laiddown inthe Act,should be required to be given. Whenthe legislation delimitingthe areasofdisclosurewasenacted,it may be that Parliament felt that the disclosure in other aspects was not necessary for the time being. Assuming thattheguarantee ofright toinformation isnot violated by making a departurefrom the paradigms set bythe Court, it is not open to Parliamentto stopall furtherdisclosures concerningthe candidatein fu- ture. It must be remembered that concept of freedom of speech and expression does not remain static. The dealt necessities if the times coupled with experiences drawn from the past may give rise to the needto insist anadditional information ontheaspects notdemand theflow ofadditional facets ofinfonnation. Therightto information shouldbe al- lowedto growratherthan beingfrozenand stagnated, but the mandateof Section 33-B prefaced by the non obstinate clause impedes the Vowof such information conducive to the freedom ofexpression. 4 Hencethe Courtin the abovecasehas determinedthe ambitoffun- damental'right ofinfonnation'to voter. TheRepresentation ofPeopleAct, 1951 as itstandstodayafteramendment, isdeficient inensuring"freeand fairelections.' National Commission for Reviewing the Workingofthe Consti- tution which submitted its Report to the Union Law Minister on 31st March, 2002 has recommended that every candidate at the time of election mustdeclare hisassetsandliabilities alongwiththoseofhis 4. P. venkatatrami Reddy, J: (2003) 4 Sec, 399. para 180 Vol XVII CITIZENS RIGHTTO VOTE AND THE VOTER'SRIGHTTOINFORMATIOl\ 235 closerelatives. Every holder ofa political position mustdeclare hisassets and liabilities along with thoseof hiscloserelations annually. Lawshould definethe term'closerelatives.' 5 Basic Structure Doctrine: Under Section 33A ofthe representation of PeopleAct. 195L the Supreme Courtjudgmenthasbeenreversed. Thiscannot be taken lightly. Underthedoctrine ofseparation of powers, Parliament cannotusurpthe judicialpowerbysittingin appeal overit.Parliament canchange thebasis of the law. But in the newelectoral amendment, thereis a naked usurpa- tionofjudiciaIpower. Thesupreme court haddeclared information forthe voteron assets,21. Parliament cannotdefya fundamental rightto know. Nor can it sit appealloverthe supreme court. The Supreme Court's decision onvoters' rights wasnotan ordinary decision. It interpreted Art. 19(1)(a)whichguarantees free speechto all citizens to inclued thevoters' right toknow about theircandidates. Aslong as Art. 19remains unchanged, thisinterpretation of theSupreme Court on its contentscannot be alteredbya legislative side wind,whichworldbe susceptible to invalidating forviolating theconstitution's basic structure." TheSupreme Courtrelied thisdecision onthebasisofS.P.Gupta v. Union ofIndia' wherein itwasheldthatright to know isimplicitin theright of free speech andexpression. Disclosure of information regarding functioning of the government must be the rule, Stateof V.P. v. RajNarain" freedom of speechandexpression includes therightto knowevery publicact,every- thingthatis doneina public way, bytheirpublic functionaries andDinesh 5. Para 4. /4.5 of the Report of the National Comission for Reviewing the working of the constitution Also reference may be made to paras 4. /2.2.4.12.3.4. /2.4 of the Report 6. PRajoev Dhavan, EJectDralLaw, the H mdu, n'h March, 2003 7. AIR /982 SC /49 8. AIR /975 SC 865 236 CENTRAL INDIA LAW QUARTERLY 2004 Trivedi, M.P. V. Unionoflndia"freedom, ofspeech andexpressionineludes rightofthecitizensto knowaboutthe affairs ofthe Government. Voters right to Know in the context of II literacy: During discussion in the Lok sabha on the Amendment act, some members hadraiseddoubtsabout the efficacy ofthevoter'srightto infor- mationinthecontextofwidespread illiteracy in ourcountry. Thesamehad beendiscussedin ConstituentAssemblein fixingminimum educational qualification to thelegislatures andultimately optedforno qualification. It was intendedto provide opportunityto the illiteratesto represent in the governance ofthe country.Might be the reason that a disciplined, rea- soned and law abided illiterate candidateis betterthan an educated and highlyqualified candidate Eventhiscanbe achieved onlywhenarticle45 provisions are implemented and educating the illiterate abouthis right to know. Conclusion : Therightto getinformation ina democracy isrecognised all through. Art. 19 (1) (a) ofthe Constitution provides for freedom of speech and expression.The voter's speech or expression in case ofelection may be said to include casting of votes, that is to say,the voter speaks out or expresses bycastingvote. Forthis purpose, informationaboutthecandi- dateto beselected is a must.The voter's rightto knowantecedentsinclud- ing criminal pastofhis candidatecontesting electionfor M.P. or MLA is muchmore fundamental andbasicforsurvival ofdemocracy. Citizens may think over before making their choice ofelecting law-breakers as law- makers. Voter's fundamental right to know the antecedents of a candi- date is independent ofstatutory rights under the election law. A voter is at first citizen of this country and apart fromstatutory rights, he is havingfundamental rightsconferred bytheConstitution. Membersofa 9. (1997) 4 see306 VoLxvn CITIZENS RIGHTTOVOTEANDTHE VOTER'SRIGHTTOINFORMATION 237 democraticsocietyshould be sufficiently informedso that maycast their votes intelligently in favourofpersonswho are to governthem.Rightto votewouldbe meaningless unless the citizens arcwell informed aboutthe antecedents of a candidate. There can be little doubt that exposure to public gaze and scrutinyis one of the surestmeans to cleanseour demo- craticgoverning systemandto havecompetent legislatures. TheSupreme Courtisthecustodian ofcitizen's fundamental rights. If a citizen is aggrieveddue to failurein the performance of duty bya state agencyand approachesthe Supreme CourtunderArt.32 of the Constitu- tionforenforcement ofa fundamental right, theSupreme Courtthenactsin aid of thecitizen's right. A newhorizon has beenopened, whenthe Execu- tive refrains from doing its duty, and when the Parliamentcannotsit on function forreasonsbeyondcontrol, it isjudiciarywhichcomes forward andtriestosolvetheproblem. Judiciary is very active in India'Thisjudicial activism, as notices, is good for our country particularly in the area of voter'srightto know. Today "We, the peopleofIndia", the authorsofthe Constitution are helpless spectatorsto the hijackingofdemocracyby corruptpoliticians r andcriminals. Indiashouldemerg asa strongmuted nation cutting across casteandcommunal divisions to face thechallenges ofthetime, 10 Thiscan beachieved onlywhenrightto information isconstitutionally guaranteed to the voters. Lack of proper representation can result in a lack of legitimacy on the part of the administration; the political system generates deci- sions that no longer have political base among the population and are consequently widely ignored. Hence proper representation can only be achieved through free and fair elections where right to information to the voter is protected. The Lincanian phrase "democracy is by the peopleofthepeopleandfor the people" can be achievedin recognising IUs rightto knowand puttinghim inthe centreof entirepolitical process. 10. P.P. Rao, Supreme Court Advocate. inhis article on "Elections Sanskeforms" theHindu, 9-2-2002