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 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.
The
right to get information in democracy is recognised all throughout and it is
natural right flowing from the concept of democracy.
No
democratic Government can survive without accountability and the basic
postulate of accountability is that the people should have information about
the functioning of the Government. It is only when people know how Government
is functioning that they can fulfill the role which democracy assigns to them
and make democracy a really effective participatory democracy.
The
trite saying that 'democracy is for the people, of the people and by the
people' has to be remembered for ever. In a democratic republic, it is the will
of the people that is paramount and becomes the basis of the authority of the
Government. The will is expressed in periodic elections based on universal
adult suffrage held by means of secret ballot. It is through the ballot that
the voter expresses his choice or preference for a candidate. "Voting is
formal expression of will or opinion by the person entitled to exercise the
right on the subject or issue", as observed by the Supreme Court in Lily
Thomas Vs. Speaker, Lok Sabha 1993 Legal Eagle (SC) 638 : 1993) 4 SCC 234]
quoting from Black's Law Dictionary.
Why a Voter must have the right to know about
the candidates?
The
citizens of the country are enabled to take part in the Government through
their chosen representatives. In a Parliamentary democracy like ours, the
Government of the day is responsible to the people through their elected
representatives. The elected representative acts or is supposed to act as a
live link between the people and the Government. The peoples' representatives fill
the role of law-makers and custodians of Government. People look to them for
ventilation and redressal of their grievances. They are the focal point of the
will and authority of the people at large. The moment they put in papers for
contesting the election, they are subjected to public gaze and public scrutiny.
The character, strength and weakness of the candidate is widely debated.
Nothing is therefore more important for sustenance of democratic polity than
the voter making an intelligent and rational choice of his or her
representative. For this, the voter should be in a position to effectively
formulate his/her opinion and to ultimately express that opinion through ballot
by casting the vote. The concomitant of the right to vote which is the basic
postulate of democracy is thus two fold:
first, formulation of opinion about
the candidates and,
second,
the expression of choice by casting the vote in favour of the preferred
candidate at the polling booth.
The
first step is complementary to the other. Many a voter will be handicapped in
formulating the opinion and making a proper choice of the candidate unless the
essential information regarding the candidate is available. The voter/citizen
should have at least the basic information about the contesting candidate, such
as his involvement in serious criminal offences. To scuttle the flow of information-relevant
and essential would affect the electorate's ability to evaluate the candidate.
Not only that, the information relating to the candidates will pave the way for
public debate on the merits and demerits of the candidates. When once there is
public disclosure of the relevant details concerning the candidates, the Press,
as a media of mass communication and voluntary organizations vigilant enough to
channel the public opinion on right lines will be able to disseminate the information
and thereby enlighten and alert the public at large regarding the adverse antecedents
of a candidate. It will go a long way in promoting the freedom of speech and
expression. That goal would be accomplished in two ways. It will help the voter
who is interested in seeking and receiving information about the candidate to
form an opinion according to his or her conscience and best of judgment and
secondly it will facilitate the Press and voluntary organizations in imparting information
on a matter of vital public concern. An informed voter-whether he acquires
information directly by keeping track of disclosures or through the Press and
other channels of communication, will be able to fulfil his responsibility in a
more satisfactory manner. An enlightened and informed citizenry would
undoubtedly enhance democratic values. Thus, the availability of proper and relevant
information about the candidate fosters and promotes the freedom of speech and expression
both from the point of view of imparting and receiving the information. In
turn, it would lead to the preservation of the integrity of electoral process
which is so essential for the growth of democracy.
The
disclosure of information would facilitate and augment the freedom of
expression both from the point of view of the voter as well as the media
through which the information is publicized and openly debated.
Voting is a form of ‘expresssion’
The
problem can be approached from another angle. As observed by the Supreme Court
in Association
for Democratic Reforms' case, a voter 'speaks out or expresses by
casting vote'. Freedom of expression, as contemplated by Article 19(1)(a) which
in many respects overlaps and coincides with freedom of speech, has manifold
meanings. It need not and ought not to be confined to expressing something in
words orally or in writing. The act of manifesting by action or language is one
of the meanings given in Ramanatha Iyer's
Law Lexicon (edited by Justice Y.V. Chandrachud). Even a manifestation of
an emotion, feeling etc., without words would amount to expression. The example
given in Collin's Dictionary of English
language (1983 reprint) is: "tears are an expression of grief", is
quite apposite. Another shade of meaning is: "a look on the face that
indicates mood or emotion; eg: a joyful expression". Communication of
emotion and display of talent through music, painting etc., is also a sort of
expression. Having regard to the comprehensive meaning of phrase 'expression', voting
can be legitimately regarded as a form of expression. Ballot is the instrument
by which the voter expresses his choice between candidates or in respect to
propositions; and his 'vote' is his choice or election, as expressed by his
ballot (vide 'A Dictionary of Modern
Legal Usage'; 2nd Edition, by Garner Bryan A). "Opinion
expressed, resolution or decision carried, by voting" is one of the
meanings given to the expression 'vote' in the New Oxford Illustrated Dictionary.
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.
In People’s Union of Civil Liberties vs. Union of India, 2003 Legal Eagle
(SC) 314 : AIR 2003 SC 2363, P. Venkatarama Reddi J., had observed that
followings:
‘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.’
‘It is well settled and it needs no emphasis
that the fundamental right of freedom of speech and expression should be
broadly construed and it has been so construed all these years. In the light of
this, the dictum of the Court that the voter "speaks out or expresses by
casting a vote" is apt and well founded. I would only reiterate and say
that freedom of voting by expressing preference for a candidate is nothing but
freedom of expressing oneself in relation to a matter of prime concern to the
country and the voter himself.
‘The right to vote for the candidate of one's choice is of the
essence of democratic polity. This right is recognized by our Constitution and
it is given effect to in specific form by the Representation of the People Act.
The Constituent Assembly debates reveal that the idea to treat the voting right
as a fundamental right was dropped; nevertheless, it was decided to provide for
it elsewhere in the Constitution. This move found its expression in Article 326
which enjoins that "the elections to the House of the People and to the
Legislative Assembly of every State shall be on the basis of adult suffrage;
that is to say, every person who is a citizen of India and who is not less than
21* years of age, and is not otherwise disqualified under the Constitution or
law on the ground of non-residence, unsoundness of mind, crime, corrupt or
illegal practice-shall be entitled to be registered as voter at such
election" (* Now 18 years). However, case after case starting from Ponnuswami's
case [Legal Eagle 1952 (SC) 2 : (1952) SCR 218 : 1952 AIR(SC) 64] characterized
it as a statutory right. "The right to vote or stand as a candidate for
election", it was observed in Ponnuswami's case "is not a civil right
but is a creature of statute or special law and must be subject to the
limitations imposed by it." It was further elaborated in the following words:
"Strictly speaking, it is the sole right of the Legislature to examine and
determine all matters relating to the election of its own members, and if the
legislature takes it out of its own hands and vests in a special tribunal an
entirely new and unknown jurisdiction, that special jurisdiction should be
exercised in accordance with the law which creates it.”’
‘Though
the initial right cannot be placed on the pedestal of a fundamental right, but,
at the stage when the voter goes to the polling booth and casts his vote, his
freedom to express arises. The casting of vote in favour of one or the other candidate
tantamounts to expression of his opinion and preference and that final stage in
the exercise of voting right marks the accomplishment of freedom of expression
of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as
distinct from right to vote is thus a species of freedom of expression and
therefore carries with it the auxiliary and complementary rights such as right
to secure information about the candidate which are conducive to the freedom.’
‘Therefore,
the fundamental right of freedom of expression sets in when a voter actually
casts his vote.’
In Union
of India v. Association for Democratic Reforms & Another, 2002
Legal Eagle (SC) 551 : (2002) 5 SCC 294, the Supreme Court
opined that “voter speaks out or expresses by casting vote” and such a speech
is part of the fundamental right under Article 19(1)(a). The Supreme Court
after taking into consideration various aspects of the matter including the
Reports and other materials held that for the effective exercise of his
fundamental right, the voter is entitled to have all relevant information about
the candidates at an election. This Court identified some of the important
aspects of such information. They are (i)
candidate’s criminal antecedents (if any), (ii) assets and liabilities, (iii)
educational qualifications.
What are the statutory
provisions?
Subsequent
to the judgement of the Supreme Court in ‘Union of India v. Association for Democratic Reforms &
Another, (2002) 5 SCC 294
Dated 2.5.2002’, Parliament chose to amend the RP Act, 1951 by
introducing section 33A and section 125A. Parliament made a further declaration
under Section 33B. The provisions are as follows:
33A. Right to information.—(1)
A candidate shall, apart from any information which he is required to furnish, under
this Act or the rules made thereunder, in his nomination paper delivered under
sub-section (1) or section 33, also furnish the
information as to whether –
(i)
he is accused of any offence punishable with imprisonment for two years or more
in a pending case in which a charge has been framed by the court of competent jurisdiction;
(ii) he has been convicted of
an 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 sentenced to imprisonment for one year or more.
(2)
The candidate of his proposer, as the case may be, shall, at the time of
delivering to the returning officer the nomination paper under sub-section (1)
of section 33, also deliver to him an affidavit sworn by the candidate in a
prescribed form very fine the information specified in sub-section (1).
(3)
The returning officer shall, as soon as may be after the furnishing of
information to him under sub-section (1),
display the aforesaid information by affixing a copy of the affidavit,
delivered under sub-section (2),
at a conspicuous place at his office for the information of the electors
relating to a constituency for which the nomination paper is delivered.
33B. Candidate to furnish information only under the
Act and the rules.—Notwithstanding anything contained in any judgment, decree
or order of any court or any direction, order or any other instruction issued
by the Election Commission, no candidate shall be liable to disclose or furnish
any such information, in respect of his election which is not required to be
disclosed or furnished under this Act or the rules made thereunder.
125A. Penalty for filing false affidavit, etc.—A
candidate who himself or through his proposer, with intent to be elected in an election,—
(i) fails to furnish information relating
to sub-section (1) of section 33A; or
(ii)
give false information which he knows or has reason to believe to be false; or
(iii)
conceals any information, in his nomination paper delivered under sub-section (1)
of section 33 or in his affidavit which is required to be delivered under sub-section
(2) of section 33A, as the case may be,
shall, notwithstanding anything contained in any other law for the time being in
force, be punishable with imprisonment for a term which may extend to six
months, or with fine, or with both.
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