The right to contest election is a fundamental right

Author: Kaushal B. Shah

Lord’s College of Law, Mumbai University

 

Meaning of election:

Broadly speaking election means an opportunity for voters to hold elected officials accountable for their actions or to choose between competing candidates or their policies. Election is a method for drawing public opinion. Public opinion is supposed to be the source of and guide to know what public officials or political leaders do.

The democratic system requires that election contestants should consult the public and should try to follow its mandate. So election is a means of telling to an elected official whether he has received a mandate from the people for his policies.  Thus election play a key role in a democratic polity, it gives mandate to elected members for forming the government, on obtaining their majority, control the government ascertain public opinion on various issues and choose the lawmakers periodically.

In the constitution of india the term “election” is not defined. However in punnuswami v/s returning officer, the supreme court while interpreting the provisions of part xv of the constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature.

The use of the expression “conduct of elections” in article 324 specifically points to the wide meaning and that the meaning can also be read consistently in to other provisions which occur in part xv including article 329(b).

In mohinder singh gill v/s chief election commissioner, justice krishna iyer further clarified the term election and held:

Election covers the entire process fromthe issuance of notification under section 14 of the representation of the people act 1951, to the declaration of result under  section 66 of the act. Even when a poll that has already been taken place has been cancelled and a fresh poll has been orderd, or election commission amends its notification and extend time for completion of the election, it is an order during  election.

Even if it is wrong order it cannot be questioned during the process. If during the process of election at an intermediate or final stage, the entire poll has wrongly cancelled and a fresh poll has been wrongly ordered, that is a matter which may be agitated after declaration of result on the basis of fresh poll, by questioning the election in the appropriate form by means of an election petition.

The reason giving a wide meaning to the term “election” is plenary. Having regard to the important functions which the legislature has to perform in democratic countries, it has[1] always been recognised to be a better of first importance that elections be concluded as early as possible according to time scheduled and all controversies and all disputes arisin out of election should be postponed till the elections are over, so that the elections proceedings may not be unduly retarded or protracted.

 

Nature of right to vote or to contest election:

Right to vote or to contest election is not a constitutional or fundamental right. The contention that the right to freedom of speech and expression guaranteed under article 19(1) (a) of the constitution of india is wide in nature and the same embraces within its fold a right of citizens to exercise his franchise was rejected by the supreme court in kabool singh v/s kundan singh wherein the court held that there was no intention on the part of the makers of the constitution to include the right of a citizen to exercise his franchise within the perview of article19 and therefore right to vote is not a fundamental right under the said article but it is a statutory one.

Right to vote is a human right of every citizen. Political rights form a distinct category of human rights. Right to vote, right to contest at elections ande the right to hold public office are considered important political rights.beginning with the universal declaration on human rights 1948 to the convention on the rights to persons with disabilities, 2006 this right has been recognised for all the citizens of the country. Popular sovereignty is echoed in the opening words

“we the people ofthe nations” of the preamble to the united nations charter.

Indian constitution declares itself as democratic . Supreme court of india has recognised democracy as one of the basic features not amenable to abrogation.fundamental rights part and the directive principles part of the constitution can be seen as the human rights conscience of our constitution. But right to vote is

Not found herein.

Part xv of the indian constitution which deals with elections and the representation of the people act 1950 and 1951 and various other provisions of the constitution laying down qualifications, conditions and the like form the electoral law of india.

An election contest is a right of action conferred on every candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election. It is a post-election contest between two competing

Candidates.fraud, corruption, or irregularities in regard to the method of holding an election in a division can affect the entire vote.  Thus an election contest is a special proceeding created by the legislature to provide a remedy for elections tainted by fraud, illegality, or other irregularity.generally, there are two types of election contests:

  • Motion seeking to oust and replace the certified winner; and
  • Motion seeking to declare an election void altogether

The fundamental purpose of an election contest is to ascertain the true will of the electorate. Moreover, an election contest provides a simple and speedy means of contesting elections.  Additionally, an election contest presupposes a full and fair litigation of election disputes in an expeditious manner.the remedy provided in an election contest is a statutory one and equity cannot be invoked to determine an election’s validity.  An election can be contested only for matters that would impeach the fairness of the result.  An election to any public office can be contested on the following grounds:

  • When illegal votes have been received;
  • When legal votes rejected at the polls, sufficient to change the result;
  • Where any error is committed by any board of canvassers in counting the votes or declaring the result of the election.

There is no provision under the common law to contest an election.  The right to contest an election exists only under the constitutional and statutory provisions.  An election contest is a special statutory proceeding.  One who seeks the benefit of a statutory proceeding must comply with all the procedural terms of the statute. Courts cannot exceed the provisions of applicable statutes in resolving election contests.

Thus the procedure proscribed by a state must be strictly followed in deciding election contests.  The judicial determination of election contests requires strict adherence to the constitutional and statutory provisions in the various jurisdictions.  All candidates have the right to protest the returns of an election by filing a protest with the appropriate canvassing board[x].  In order to contest election results, the petitioner must show that the result of the election will be different in the absence of irregularities.

A candidate intending to contest the election of a member of the house of representatives must file a notice of his/her intention to contest the election with the board of canvassers within thirty days after the result of the election.  She must serve a copy of notice upon the contestee.

The court or board authorized by statute or the constitution has jurisdiction to hear an election contest.  The jurisdictional facts must appear on the face of the proceedings.  However, jurisdictional defects can be raised at any time. A judge who may be affected by the result of the decision is disqualified from sitting in the hearing.  The proper or necessary parties to election contest proceedings are usually prescribed by each statute. The right to contest an election is generally conferred on:

  • Electors;
  • Candidates; or

However, a private citizen cannot initiate an election contest to remedy a public wrong.  In order to seek a remedy under election contest, the petitioner must seek personal relief. A petition for an election contest must present more than mere charges of fraud and irregularity in the election.  Specifications are necessary to avoid indefinite and indeterminable inquiry[xv].  In an election contest, courts usually grant such relief which the statutes specifically authorize.  In deciding an

election contest, the court can:

  • Uphold the entire election or declare it invalid;
  • Declare a winner of the election or order a new election between the candidates;
  • Declare the election void if it concludes that it cannot determine the true outcome of the election; or
  • Conclude that a new election is the fairest way to ascertain the true will of the people.

In many jurisdictions, statutory or constitutional provisions provide appeal from election contests available in many jurisdictions.  Moreover, the judgment of the trial court can be stayed pending the decision of the appellate court.  In reviewing

The trial court’s findings of fact in an election contest, the appellate court will not disturb the trial court’s findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence.  [2] constitution of people acts

1950-1951 provide for the entire electoral law of india.

 

  

Universality and equality: constitution of india stipulates that there shall be only one general electoral roll for every territorial constituency. No person shall be ineligible for inclusion in the electoral roll on grounds of religion, race, caste or sex.  Every citizen who is not less than eighteen years of age shall be entitled to be registered as a voter unless disqualified under the constitution or any law made by the appropriate legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice.

This provision has been hailed as the fountain spring of india’s democracy. At one stroke all undemocratic qualifications have been removed. The supreme court unfortunately refuses to accept the right to vote as a civil right under the constitution and has dumped it as a creature of statute subject  to limitations imposed by it.

Disqualifications to vote: the equal right to vote is directly governed by ss. 16 & 19 of 1950 act & ss. 11a & 62 of the 1951 act. Section 16 disqualifies a person from registration in an electoral roll who is not a citizen of india or is of unsound mind or is disqualified for election offences/corrupt practices. Also, after registration if any person becomes disqualified his/her name shall be struck off from the rolls. Section 19 lays down minimum 18 years of age & ordinary residence in the constituency as conditions for registration.

laying down the disqualifications forvoting, s.11a disqualifies for six years from the date of conviction for conviction under s.171 d or s171f, indian penal code19 or under s.125 or sec. 135 or s.136 (2) (a) of 1951 act from the date of conviction and upto six years for disqualification for election offences under s.8a, 1951 act.

Section 62, 1951 act deals with right to vote. Every person who is entered in the roll of a constituency is entitled to vote in that constituency. A person suffering from disqualification cannot vote. Every person entitled to vote, can vote only in one constituency and only once at one election. Section 62 (5) disallows a person to vote at an election if he/she is confined in a prison; the confinement may be under a sentence or in the lawful custody of the police. This disentitlement will not apply to those confined under any preventive detention law. Section 62(5) disentitles all persons in prison including the under trials and those in the police custodyconfinement in prison does not involve loss of citizenship. Under trials have a right to be presumed innocent until the guilt is proved. [3]

Arbitrary arrest & confinement have become very usual and theycan negate the right to vote. Delay in trials have become routine although right to speedy trial is recognized. Under trials who cannot furnish bail are unreasonably discriminated and their right to vote is deprived a person under trial for murder who is on bail can vote but a personarrested for loitering in public place at odd hours cannot if he cannot afford bail.

Parliament has abdicated its responsibility of formulating the policy on disqualification on the ground of conviction. S.62(5) has been upheld and the plea that all under-trial prisoners should be extended the right to vote dismissed by the supreme court.this judgment will have to be reconsidered23 & the parliament shall lay down by law, in detail, the disqualification due to conviction. Number of years of disqualification shall suit the nature & gravity of the offence.

Genuine elections & secret ballot : elections shall be genuine & not farce. Constitution of india ensures free, fair & impartial elections by establishment of election commission as a constitutional body to control, direct & superintend the conduct of all elections. The commission is autonomous and insulated from the executive. Supreme court has strengthened the role of election commission by recognizing its power to scrutinize the election expenses incurred by political parties & the sources of such expenses and its power to demand information on assets, criminal antecedents & educational qualification of candidates contesting elections.nexus between election commissioners and politicians/political parties can endanger the election commission’s role.

Media exposes on mr. Navin chawla’s affinity to congress and subsequent developments indicate the need to tighten the rules insulating the commission from the executive. Chief election commissioner enjoys a security of tenure similar to that of a supreme court judge but the constitution fails to lay down the qualification(s) for the post.the constitution should lay down qualifications for persons to be appointed in the commission. Further the appointments should be in consultation with the opposition party and other major political parties. The supreme court has asserted its power of review over decisions of the commission to postpone elections etc. On grounds of law & order situations. This review can prevent & also protect against politically coloured/ favoured decisions by the commission.

The principle of free and fair elections has been engrained in article 25, iccpr in terms of secret ballot guaranteeing free expression of will of the people. Secret ballot is essential to ensure free participation & expression by the people & to rule out victimization on the basis of their votes. Although constitution has prescribed secret ballot in the election of president & vice-president of india. It remains silent as to elections to the lok sabha, rajya sabha & state legislatures. This void is filled up by sections 55 & 128 of the 1951 rpa. S.55 says that at every election, poll shall be taken by ballot, which is not open, except at the election to fill seats in the rajya sabha. S.128 recognizes the duty to maintain secretary of voting and punishes for breaches.

Periodicity: constitution of india provides for a parliamentary form of government both at the centre & at the states. The term of the lok sabha, state legislative assemblies, the panchayats & municipalities is 5 years. Rajya sabha is a continuingbody; 1/3 of its members retire every 2 years. 42nd constitutional amendment act amended articles 83(2) & 172(1) and increased the duration to six years. But 44th constitutional amendment act restored status quo.

The duration of the parliament & the state legislative assemblies may be extended by parliament by law for a period not exceeding one year at one time during a period when a proclamation of national emergency under article 352 is in operation. However it shall not exceed in any case beyond a period of six months from the date the proclamation of emergency has ceased to operate. People of this country shall express their mandate as early as possible. Any constitutional amendment diminishing the guarantee of periodicity is most likely to be struck down by the supreme court as threatening the basic principle of democracy.

President can on the advise of the prime minister dissolve the parliament before the term and announce general elections. Constitution lays down no hard and fast rules on the question of such dissolution & leaves it to conventions & circumstances. Prime minister can ask for dissolution when he suffers due to slender majority & seek the fresh mandate of the people.in respect of the state legislatures as well, the governor can dissolve the assembly. In our federalpolity, centre has powers to dismiss the state government and dissolve the legislative assembly using emergency powers. On the grounds of failure of the constitutional machinery in the states, this drastic power can be used. The judiciary has asserted its authority to nullify a proclamation issued under art. 356 and reinstate the government in case of misuse. Right to vote would be of little meaning if a democratically elected government can be thrown out of power by misuse of constitutional authority.

Right to information of voters : voters require proper and adequate information about the contestants in the election if they have to meaningfully cast their votes. Criminalisation of politics has become a grave problem afflicting our democracy.

Law commission‟s suggestion that the persons charged with serious offences be disqualified from contesting the election and the election commission‟s expression of concern over criminalisation of politics have not been acted upon by the government and parliament. Judiciary has ruled that the election commission must make it mandatory for the candidates contesting elections to give details of –

# conviction, acquittal, discharge of any offence, punishment

# pending accusations / charges

# assets

# liabilities, government dues

# educational qualification.

Holding right to information an essential component of free speech, the supreme court recognized the right of the voters to know the candidates sufficiently enough to make the right choice. Now the representation of people act1951 has recognized a duty on the candidates contesting elections to provide information as to criminal convictions and accusations. The applicability of right to information act 2005 against individual mps or mlas has not been accepted by the central information commission.

Universal right to vote cannot by itself guarantee universal participation through voting.fundamental duties of citizens in the constitution is just a tokenism and even that does not include duty to vote. Disillusioned youngsters, beauty conscious women who are worried about the indelible ink, and working lot who look upon election day as a day of rest have dishonoured the divinity in the human right to vote. Indian democracy believes that the „little indian‟ is all capable. True capability requires education and an awakening, as mahatma gandhi stressed, about the vastness and

Greatness of this country. Citizenship is the greatest of all offices in the polity of any country. Right to vote can establish a popular government which in turn can ensure welfarism and good governance.

Reservation for sc/st and anglo-indian: although there is a common electoral roll and irrespective of religion, race, caste, sex etc every qualified citizen is entitled to register as voter inthe electoral roll but in contestingthe election, reservations have been introduced inthe constitution to make the equality clause more effective.

It is true that reservation amounts to discrimination, since different sections of society do not enjoy same social and economic status, therefore reservation has been provided. Such reservations amount to protective discrimination and in one way the further rule of equality. The framers of the constitution took care to safeguard the interest of weaker sections ofthe society andthe minorities to protect them against any discrimination and to help them to get integrated intothe main stream of life. The point to be emphasised is that the historical  legacy of exploitation of dalits, or exploitation of masses have been accepted by the framers of the constitution and corrective steps were taken to protect them through law and practice of the indian politics.

Prevalence of social evils like untouchability required special consideration. Therefore,the constitution makers felt the need of providing reservation for depressed classes in political  institution for certain period.on the issue of reservation of seats in the legislature, majority of sub-committee on minorities and the advisory commitee on fundamental rights were of the view that reservation should be provided only for scheduled caste and scheduled tribes.

It is because of the backwardness of these communities which made it necessary that their representatives should be members of their community so as to actively participate in the political life and in the legislature. It was recommended that the reservation should be for ten years and the position would be reconsidered at the end ofthe year. In addition to this if anglo-indian community is found to be less represented in the legislature then few seats is also reserved for them. Therefore excluding the scheduled caste,scheduled tribes and anglo-indians, no reservation of seats have been made for any community in any house on sectional and regional basis. Thus article 330 of the constitutionof india provides for the reservation of scheduled caste and scheduled tribes.

Seats so reserved shall be in proportion of the population of the scheduled caste and scheduled tribes in the state in relationto the total seats allotted to that state or union territory. While working out the reservation, the word “population”shall be construed to mean the population ascertained at the last preceding census of which the relevant figures have been published. Seats were also reserved for autonomous districts in the legislative assembly of assam. In 1969 the period of ten years was extended to thirty years and further in 1980 the period of thirty years was extended to forty years, it has been further provided in this article by forty-second amendment that the relevant figures of the last preceding census shall be taken to be figures of 1971 census tillfigures of the first census taken after the year 2000 have been published.

Therefore,the allotment of seats in central and state legislatures is not to be revised till the figures of the first census taken after the year 2000 have been published. Seats allocated to each state and reserved for scheduled caste and scheduled tribes in the lok sabha have been shown in the representation of people act 1950. Similar allocation is provided for legislative assemblies and legislative councils of the states.

Right to vote under international human rights instruments – universal and regional

Udhr, 1948 recognizes the right to vote. Everyone has the right to take part in the government of his country directly or through freely chosen representatives. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic & genuine elections, which shall be by universal & equal suffrage and shall be held by secret vote or by equivalent free voting procedure.

The international convention on civil and political rights, 1966 recognizes the right in more categorical terms.

Article25 every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

To vote & to be elected at genuine periodic electoral which shall be by universal & equal suffrage & shall be held by secret ballot guaranteeing the free expression of the will of the electors.

International convention on the elimination of all forms of racial discrimination, 1966, recognizes the duties of the state parties to guarantee without distinction as to race colour, or national or ethnic origin the right to vote. Convention on the political rights of women, 1952 recognizes right to vote for women on an equal footing with men. The convention on the elimination of all forms of discrimination against women 1969 casts duties on state to eliminate discrimination & ensure equality to women on equal terms with men in respect of the right to vote in all elections & public referenda.

The right to vote of the disabled persons is protected. Convention on the rights of persons with disabilities 2006, lays down that persons with disabilities include those who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others. This convention mandates that state panties shall guarantee to persons with disabilities the right to vote ensuring that voting procedures, facilities and materials are appropriate, accessible & easy to understand & use. Disabled may be allowed at request assistance in voting by a person of their own choice.

It is interesting to note that although the civil rights and socio economic rights it is interesting to note that although the civil rights and socio economic rights of children are protected, the convention on rights of a child, 1989 does not recognize right to vote of children & also the other political rights.notable regional arrangements for the protection of human rights have emerged. These have also recognized the right to vote. European convention for the protection of human rights and fundamental freedoms, 1950 incorporates the right to have free elections at reasonable intervals by secret ballot under conditions

Which will ensure the free expression of the opinion of the people in the choice of the legislature. American convention on human rights 1969 recognizes the equal right to vote & free expression of will. It also recognizes the authority of the state to regulate the right by law on the basis of age, nationality, residence, language, educations, civil & mental capacity or sentencing by a competent court in criminal proceedings. African charter on human rights & people’s rights, 1981 also seeks to protect the right to vote of every citizen. Right to vote is thus a well entrenched human right under international human rights law both universal and regional.

The essentials of the right are:

  1. Available to all citizens (universality)
  2. Without discrimination (equality)
  3. Guarantee of free expression (secret ballot)
  4. Guarantee of periodic expression of will (periodicity)[4]

 

 

Provisions of law relating to offences and corrupt practices in connection with elections:

Sl no.                        Brief description of offence                             section/             type        punishment         
                                                                                                                   rules
Concerning officers/persons involved in election duty
1          every officer, clerk , agent, or other person who         sec 128 of the         non-             3 mths.
            performs any duty in connection with the recording or representation  cognizable    imprison-
            counting of votes at and election shall maintain the   of the people meant or
            secrecy of the voting. Its violation constitutes an act, 1951 fine or both
            offence.
2           no official connected with conduct of elections shall sec 129 of the     cognizable     6 mths.
             do any act (other than giving of vote) for the  representation imprison-
             furtherance of the prospects of election of any  of the people ment or
             candidate.                                                                                   Act, 1951                            fine or both
3         breach of official duty, without reasonable cause, by   sec 134 of the   cognizable     fine upto
           any person involved in any duty in connection with an representation                          rs. 500/-
           election                                                                                    of the people
                                                                                                               act, 1951
 4      any person in the service of the government acing as    sec 134a of        non-               3 mths.
        an election agent or a polling agent or a counting agent representation cognizable    imprison-
         of a candidate at an election                                                   of the people                          ment or
                                                                                                                  act, 1951                            fine or both
At or near polling station on the date(s) of poll:
1       prohibition on the date(s) of poll of :-                                  sec 130 of the    cognizable   fine upto
         (a) canvassing in or near polling station; or                         representation                          rs. 250/-
         (b) soliciting the vote of any elector; or                                of the people
         (c) persuading any elector not to vote for any particular     act, 1951
         candidate; or
         (d) persuading any elector not to vote at the election; or
         (e) exhibiting any notice or sign(other than an official
          notice) relating to the election.
2       any person shouting in a disorderly manner or using        sec 131 of the    on the orders   3 mths
         loudspeakers, megaphones etc. So as to disturb the poll, representation  of the presiding prison
         in or around the polling station can be arrested and          of the people       officer, police  or fine
         such apparatus seized by any police officer.                             Act, 1951         can arrest the or both
                                                                                                                                                the offender
3     misconduct by any person in the polling station, or      sec 132 of the    cognizable      3 mths.
       disobedience of lawful directions of the presiding        representation                        imprisonment
      officer may result in that person being removed from     of the people                        or fine or both
      the polling station by any police officer on duty. Any           act, 1951
      person who has been so removed from a polling station
     re-enters the polling station without the permission of
     the presiding officer can be arrested.
Against denying someone right to vote:
1    non-granting of paid holiday to the employees entitled   sec 135b of                non-              fine
       to vote on the date of the poll by the employer.               The representation cognizable    upto
                                                                                                            of the people                                   rs.500/-
                                                                                                            act 1951
Against harming a public servant on duty:
1   whoever voluntarily causes simple or grievous hurt or    sec 332/333/353  coginzable  imprison-
     assaults to deter a public servant from discharging his     of the ipc 1860                           ment from
     duty.                                                                                                                                                   2 to 10 yrs.
                                                                                                                                                                    and fine

people’s union of civil liberties & anr. ………………… Appellant(s)

                                       – versus –

 union of india & anr.  …………………………………………. Respondent(s)

                            

                                  supreme court of india

                                 civil original jurisdiction  

                               civil appeal nos. 490 of 2002

  1. Venkatarama reddi. J.

The width and amplitude of the right to information about the candidates contesting elections to the parliament or state legislature in the context of the citizen’s right to vote broadly falls for consideration in these writ petitions under article 32 of the constitution. While i respectfully agree with the conclusion that section 33 (b) of the representation of the people act, 1951 does to pass the test of constitutionality, i have come across a limited area of disagreement on certain aspects, especially pertaining to the extent of disclosures that could be insisted upon by the court in the light of legislation on the subject.

Moreover, the importance and intricacies of the subject-matter and the virgin ground trodden by this court in union of india vs. Association for democratic reforms (2002) 5 scc 294] to bring the right to information of the voter within the sweep of article 19(1) (a) has impelled to elucidate and clarify certain crucial aspects. Hence, this separate opinion.

 

(1). Freedom of expression and right to information: in the constitution of our democratic republic, among the fundamental freedoms, freedom of speech and expression shines radiantly in the firmament of part iii. We must take legitimate pride that this cherished freedom has grown from strength to strength in the post independent era. It has been constantly nourished and shaped to new dimensions in tune with the contemporary needs by the constitutional courts. Barring a few aberrations, the executive government and the political parties too have not lagged behind in safeguarding this valuable right which is the insignia of democratic culture of a nation. Nurtured by this right, press and electronic media have emerged as powerful instruments to mould the public opinion and to educate, entertain and enlighten the public.

Freedom of speech and expression, just as equality clause and the guarantee of life and liberty has been very broadly construed by this court right from 1950s. It has been variously described as a ‘basic human right’, ‘a natural right’ and the like. It embraces within its scope the freedom of propagation and inter-change of ideas, dissemination of information which would help formation of one’s opinion and viewpoint and debates on matters of public concern.

The importance which our constitution-makers wanted to attach to this freedom is evident from the fact that reasonable restrictions on that right could be placed by law only on the limited grounds specified in article 19(2), not to speak of inherent limitations of the right. In due course of time, several species of rights unenumerated in article 19(1)(a) have branched off from the genus of the article through the process of interpretation by this apex court. One such right is the ‘right to information’.

Perhaps, the first decision which has adverted to this right is state of u.p. vs. Raj narain [(1975) 4 scc 428]. ‘the right to know’, it was observed by mathew, j. “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’. It was said very aptly –

“in a government of responsibility like ours, where all the agents 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.”

The next milestone which showed the way for concretizing this right is the decision in s.p. gupta vs. Union of india [(1981) suppl. Scc page 87] in which this court dealt with the issue of high court judges’ transfer. Bhagwati, j. Observed –

“the concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under article 19(1) (a). Therefore, disclosure of information in regard to the functioning of the government must be the rule and secrecy an exception…”

Peoples’ right to know about governmental affairs was emphasized in the following words:

“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.”

These two decisions have recognized that the right of the citizens to obtain information on matters relating to public acts flows from the fundamental right enshrined in article 19(1)(a). The pertinent observations made by the learned judges in these two cases were in the context of the question whether the privilege under section 123 of the evidence act could be claimed by the state in respect of the blue book in the first case i.e., raj narain’s case (supra) and the file throwing light on the consultation process wih the chief justice, in the second case. Though the scope and ambit of article 19(1)(a) vis-à-vis the right to information did not directly arise for consideration in those two landmark decisions, the observations quoted supra have certain amount of relevance in evaluating the nature and character of the right.

Jeevan reddy j. Spoke more or less in the same voice:

“the right of free speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an ‘aware’ citizenry.

diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them.”A conspectus of these cases would reveal that the right to receive and impart information was considered in the context of privilege pleaded by the state in relation to confidential documents relating to public affairs and the freedom of electronic media in broadcasting / telecasting certain events.

 

(2). Right to information in the context of voter’s right to know the details of contesting candidates and the right of the media and others to enlighten the voter.

For the first time in union india vs. Association for democratic reforms’ case (supra),which is the forerunner to the present controversy, the right to know about the candidate standing for election has been brought within the sweep of article 19(1)(a).

there can be no doubt that by doing so, a new dimension has been given to the right embodied in article 19(1)(a) through a creative approach dictated by the need to improve and refine the political process of election. In carving out this right, the court had not traversed a beaten track but took a fresh path. It must be noted that the right to information evolved by this court in the said case is qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media, though to a certain extent, there may be overlapping. The right to information of the voter / citizen is sought to be enforced against an individual who intends to become a public figure and the information relates to his personal matter. Secondly that right cannot materialize without state’s intervention.

The state or its instrumentality has to compel a subject to make the information available to public, by means of legislation or orders having the force of law. With respect, i am unable to share the view that it stands on the same footing as right to telecast and the right to view the sports and games or other items of entertainment through television (vide observations at paragraph 38 of association for democratic reforms case). One more observation at paragraph 30 to the effect that “the decision making process of a voter would include his right to know about public functionaries who are required to be elected by him” needs explanation. Till a candidate gets elected and enters the house, it would not be appropriate to refer to him as a public functionary.

Therefore, the right to know about a public act done by a public functionary to which we find reference in raj narain’s case (supra) is not the same thing as the right to know about the antecedents of the candidate contesting for the election. Nevertheless,the conclusion reached by the court that the voter has such a right and that the right falls within the realm of freedom of speech and expression guaranteed byarticle 19(1)(a) can be justified on good and substantial grounds. To this aspect, i will advert a little later. Before that, i would like to say that it would have been in the fitness of the things if the case [u.o.i. vs. Association for democratic reforms] was referred to the constution bench as per the mandate of article 145(3) for the reason that a new dimension has been added to the concept of freedom of expression so as to bring within its ambit a new species of right to information.

Apparently, no such request was made at the hearing and all parties invited the decision of three judge bench. The law has been laid down therein elevating the right to secureinformation about a contesting candidate to the position of a fundamental right.that decision has been duly taken note of by the parliament and acted upon by the election commission. It has attained finality. At this stage, it would not be appropriate to set the clock back and refer to matter to constitution bench to test the correctness of the view taken in that case. I agree with my learned brother shah, j. In this respect. However, i would prefer to give reasons of my own – may not be very different from what the learned judge had expressed, to demonstrate that the proposition laid down by this court rests on a firm constitutional basis.

 

 (3) right to vote is a constitutional right though not a fundamental right but right to make choice by means of ballot is part of freedom of expression:

The right to vote for the candidate of one’s choice is of the essence of democratic polity. This right is recognized by our constitution and it is given effect to in specific form by the representation of the people act. The constituent assembly debates reveal that the idea to treat the voting right as a fundamental right was dropped;nevertheless, it was decided to provide for it elsewhere in the constitution.

this move found its expression in article 326 which enjoins that “the elections to the house of the people and to the legislative assembly of every state shall be on the basis of adult suffrage; that is to say, every person who is a citizen of india and who is not less then 21 years of age, and is not otherwise disqualified under the constitution or law on the ground of non-residence, unsoundness of mind, crime, corrupt or illegal practice-shall be entitled to be registered as voter at such election” (now 18 years).

However, case after case starting from ponnuswami’s case[(1952) scr 218) 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 allmatters 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.

”in jyoti basu vs. Debi ghosal [1982 (3) scr 318] this court again pointed out in no uncertain terms that: “a right to elect, fundamental though it is to democracy, is,anomalously enough, neither a fundamental right nor a common law right. It is pure and simple a statutory right.” With great reverence to the eminent judges, i would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the constitution and in accordance with the constitutional mandate contained in article 326, the right has been shaped by the statute, namely, r.p. act. That, in my understanding is the correct legal position as regards the nature of the right to vote in elections to the house of people and legislative assemblies. It is not very accurate to describe it as a statutory right, pure and simple. Even with this clarification, the argument of the learned solicitor general that the right to vote not being a fundamental right, the information which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains to be squarely met.

Here, a distinction has to be drawn between the conferment of the right to vote on fulfillment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot. 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. None of the decisions of this court wherein the proposition that the right to vote is a pure and simple statutory right was declared and reiterated, considered the question whether the citizen’s freedom of expression is or is not involved when a citizen entitled to vote casts his vote in favour of one or the other candidate. The issues that arose in ponnuswami’s case and various cases cited by the learned solicitor-general fall broadly within the realm of procedural or remedial aspects of challenging the election or the nomination of a candidate. None of these decisions, in my view, go counter to the proposition accepted by us that the fundamental right of freedom of expression sets in when a voter actually casts his vote. I, therefore, find no merit in the submission made by the learned solicitor general that these writ petiions have to be referred to a larger bench in view of the apparent conflict. As already stated, the factual matrix and legal issues involved in those cases were different and the view, we are taking, does not go counter to the actual ratio of the said decisions rendered by the eminent judges of this court.

(4) conclusion:

  1. Securing information on the basic details concerning the candidates contesting for elections to the parliament or state legislature promotes freedom of expression and therefore the right to information forms an integral part of article 19(1)(a).[5] this right to information is however, qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media, though, to a certain extent, there may be overlapping.
  2. The right to vote at the elections to the house of people or legislative assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in article 19(1)(a). The casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.
  3. The directives given by this court in union of india vs. Association for democratic reforms [(2002) 5 scc 294] were intended to operate only till the law was made by the legislature and in that sense ‘pro tempore’ in nature. Once legislation is made, the court has to make an independent assessment in order to evaluate whether the items of information statutorily ordained are reasonably adequate to secure the right of information available to the voter/citizen. In embarking on this exercise, the points of disclosure indicated by this court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced.

 

  1. The court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right.
  2. Section 33b inserted by the representation of people (3rd amendment) act, 2002 does not pass the test of constitutionality firstly for the reason that it imposes blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate.
  3. The right to information provided for by the parliament under section 33a in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is not good reason for excluding the pending cases in which cognizance has been taken by court from the ambit of disclosure.
  4. The provision made in section 75a regarding declaration of assets and liabilities of the elected candidates to the speaker or the chairman of the house has failed to effectuate the right to information and the freedom of expression of the voters/citizens. Having accepted the need to insist of disclosure of assets and liabilities of the elected candidate together with those of spouse or dependent children, the parliament ought to have made a provision for furnishing this information at the time of filling the nomination. Failure to do so has resulted in the violation of guarantee under article 19(1) (a).

 

  1. The failure to provide for disclosure of educational qualification does not, in practical terms, infringe the freedom of expression.

 

  1. The election commission has to issue revised instructions to ensure implementation of section 33a subject to what is laid down in this judgment regarding the cases in which cognizance has been taken. The election commission’s orders related to disclosure to assets and liabilities will still hold good and continue to be operative. Verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information should not be enforced.

REFERENCES

https://indiankanoon.org

[1] “PUNNUSWAMI V/S. RETURNING OFFICER”

2 “MOHINDER SINGH GILL” V/S. CHIEF ELECTION COMMISSIONER”

[2] MALPRACTICES ALLEGED IN REVISION OF ELECTORAL ROLL: THE HINDU,(NOV.6,2012)

CONSTITUTION OF INDIA (BARE ACT).UNIVERSAL LAW PUBLISHING CO.PVT. LTD.,2013 (INDIA)

[3]http://eci.nic.in/eci_main/ElectoralLaws/HandBooks

“THE REPRESENTATION OF PEOPLE ACT 1951 STATES IN CHAPTER IV, RIGHT TO VOTE:SECTION 62(5) BARS PRISONERS OR THOSE IN LAWFUL POLICE CUSTODY FROM VOTING IN ELECTIONS”.

[4] “THE RIGHT TO VOTE IN THE INDIAN CONSTITUTION IS INCLUDED IN PART XV DEALING WITH ELECTIONS AND

NOT IN PART III OF THE CONSTITUTION, WHICH PROVIDES THE FUNDAMENTAL RIGHTS”.

 

 

 

[5]  Article 19(1) (a): Protection of certain rights regarding freedom of speech, etc. – (1) All citizens shall have the right- (a) to freedom of speech and expression.

 

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