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IN SUPREME COURT OF INDIA Page 1 of 21

CASE NO.:
Appeal (civil) 7178 of 2001
Writ Petition (civil) 294 of 2001

PETITIONER:
UNION OF INDIA

Vs.

RESPONDENT:
AS&SOACNIOATTHIEORN FOR DEMOCRATIC REFORMS

DATE OF JUDGMENT: 02/05/2002

BENCH:
M.B. Shah, Bisheshwar Prasad Singh & H.K. Sema

JUDGMENT:

Shah, J.

Short but important question involved in these matters isin a

nation wedded to republican and democratic form of government,
where election as a Member of Parliament or as a Member of
Legislative Assembly is of utmost importance for governance of the
country, whether, before casting votes, voters have a right to know
relevant particulars of their candidates? Further connected question
iswhether the High Court had jurisdiction to issue directions, as
stated below, in a writ petition filed under Article 226 of the
Constitution of India?

Before dealing with the aforesaid questions, we would refer to

the brief facts as alleged by the Petitioner-Association for Democratic
Reforms in Writ Petition No.7257 of 1999 filed before the High Court
of Delhi for direction to implement the recommendations made by the
Law Commission in its 170th Report and to make necessary changes
under Rule 4 of the Conduct of Election Rules, 1961. It has been
pointed out that Law Commission of India had, at the request of
Government of India, undertaken comprehensive study of the
measures required to expedite hearing of election petitions and to have
a thorough review of the Representation of the People Act, 1951
(hereinafter referred to as "the Act") so as to make the electoral
process more fair, transparent and equitable and to reduce the
distortions and evils that have crept into the Indian electoral system
and to identify the areas where the legal provisions required
strengthening and improvement. It is pointed out that Law
Commission has made recommendation for debarring a candidate
from contesting an election if charges have been framed against him
by a Court in respect of certain offences and necessity for a candidate
seeking to contest election to furnish details regarding criminal cases,
if any, pending against him. It has also suggested that true and correct
statement of assets owned by the candidate, his/her spouse and
dependant relations should also be disclosed. Petitioner has also
referred Para 6.2 of the report of the Vohra Committee of the
Government of India, Ministry of Home Affairs, which reads as
follows:

"6.2 Like the Director CBI, the DIB has also

stated that there has been a rapid spread and growth of
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criminal gangs, armed senas, drug Mafias, smuggling
gang, drug peddlers and economic lobbies in the country
which have, over the years, developed an extensive
network of contacts with the bureaucrats/Government
functionaries at the local levels, politicians, media
persons and strategically located individuals in the non
State sector. Some of these Syndicates also have
international linkages, including the foreign intelligence
agencies. In this context the DIB has given the following
examples

(i) In certain States like Bihar, Haryana and UP, these

gangs enjoy the patronage of local level
politicians, cutting across party lines and the
protection of Governmental functionaries. Some
political leaders become the leaders of these gangs,
armed senas and over the years get themselves
elected to local bodies, State Assemblies and the
national Parliament. Resultantly, such elements
have acquired considerable political clout
seriously jeopardising the smooth functioning of
the administration and the safety of life and
property of the common man causing a sense of
despair and alienation among the people;

(ii) The big smuggling Syndicates having international

linkages have spread into and infected the various
economic and financial activities, including havala
transactions, circulation of black money and
operations of a vicious parallel economy causing
serious damage to the economic fibre of the
country. These Syndicates have acquired
substantial financial and muscle power and social
respectability and have successfully corrupted the
Government machinery at all levels and yield
enough influence to make the task of Investigating
and Prosecuting agencies extremely difficult; even
the members of the Judicial system have not
escaped the embrace of the Mafia;

(iii) Certain elements of the Mafia have shifted to

narcotics, drugs and weapon smuggling and
established narco-terrorism networks specially in
the States of J&K, Punjab, Gujarat and
Maharashtra. The cost of contesting elections has
thrown the politician into the lap of these elements
and led to a grave compromise by officials of the
preventive/detective systems. The virus has spread
to almost all the centres in the country, the coastal
and the border States have been particularly
affected;

(iv) The Bombay bomb blast case and the communal

riots in Surat and Ahmedabad have demonstrated
how the India underworld has been exploited by
the Pak ISI and the latter’s network in UAE to
cause sabotage subversion and communal tension
in various parts of the country. The investigations
into the Bombay bomb blast cases have revealed
expensive linkages of the underworld in the
various governmental agencies, political circles,
business sector and the film world."

It is also contended that despite the Reports of the Law

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Commission and Vohra Committee, successive governments have
failed to take any action and, therefore, petition was filed for
implementation of the said reports and for a direction to the Election
Commission to make mandatory for every candidate to provide
information by amending Form 2-A to 2-E prescribed under the
Conduct of Election Rules, 1961. After hearing the parties, the High
Court by judgment and order dated 2nd November, 2000, held that it is
the function of the Parliament to make necessary amendments in the
Representation of the People Act, 1951 or the Election Rules and,
therefore, Court cannot pass any order, as prayed, for amending the
Act or the Rules.

However, the Court consideredwhether or not an elector, a

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

1. Whether the candidate is accused of any offence(s)

punishable with imprisonment? If so, the details
thereof.

2. Assets possessed by a candidate, his or her spouse

and dependant relations?

3. Facts giving insight to candidate’s competence,

capacity and suitability for acting as
parliamentarian or legislator including details of
his/her educational qualifications;

4. Information which the election commission

considers necessary for judging the capacity and
capability of the political party fielding the
candidate for election to Parliament or the State
Legislature.

That order is challenged by Union of India by filing the present

appeal.

On behalf of Indian National Congress I.A. No.2 of 2001 is also

filed for impleadment/intervention in the appeal filed by the Union of
India by inter alia contending that the High Court ought to have
directed the writ petitioners to approach the Parliament for appropriate
amendments to the Act instead of directing the Election Commission
of India to implement the same. I.A. for intervention is granted.

Further, People’s Union for Civil Liberties (PUCL) has filed

Writ Petition No.294 of 2001 under Article 32 of the Constitution
praying that writ, order or direction be issued to the respondents
(a) to bring in such measures which provide for declaration of assets
by the candidate for the elections and for such mandatory declaration
every year during the tenure as an elected representative as MP/MLA;
(b) to bring in such measures which provide for declaration by the
candidate contesting election whether any charge in respect of any
offence has been framed against him/her; and (c) to frame such
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guidelines under Article 141 of the Constitution by taking into
consideration 170th Report of Law Commission of India.

SUBMISSIONS:

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

(a) that on the date fixed for the scrutiny of

nominations the candidate either is not qualified or
is disqualified for being chosen to fill the seat
under any of the following provisions that may be
applicable, namely

Articles 84, 102, 173 and 191,

Part II of this Act and sections 4 and 14 of the

Government of Union Territories Act, 1963 (20 of
1963); or

(b) that there has been a failure to comply with any of

the provisions of Section 33 or Section 34; or

(c) that the signature of the candidate or the proposer

on the nomination paper is not genuine.

It is his submission that it is for the political parties to decide

whether such amendments should be brought and carried out in the
Act and the Rules. He further submitted that as the Act or the Rules
nowhere disqualify a candidate for non-disclosure of the assets or
pending charge in a criminal case and, therefore, directions given by
the High Court would be of no consequence and such directions ought
not to have been issued.

Supplementing the aforesaid submission, Mr. Ashwini Kumar,

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

Mr. K.K. Venugopal, learned senior counsel appearing on

behalf of Election Commission exhaustively referred to the counter
affidavit filed on behalf of Election Commission. At this stage, we
would refer to some part from the said affidavit. It is stated that issue
of ’persons with criminal background’ contesting election has been
engaging the attention of the Election Commission of India for quite
some time; even Parliament in the debates on 50 years of
independence and the resolution passed in its special Session in
August, 1997 had shown a great concern about the increasing
criminalisation of politics; it is widely believed that there is criminal
nexus between the political parties and anti-social elements which is
leading to criminalisation of politics; the criminals themselves are
now joining election fray and often even getting elected in the
process. Some of them have even adorned ministerial berths and,
thus, law breakers have become law makers. The Commission has
suggested that candidate should be required to furnish information in
respect of

(a) all cases in which he has been convicted of any

offence and punished with any kind of
imprisonment or amount of fine, and whether any
appeal or application for review is pending in
respect of any such cases of conviction, and

(b) all pending cases in which he is involved before

any court of law in any offence, punishable with
imprisonment for two years or more, and where
the appropriate court has on prima facie
satisfaction framed the charges against him for
proceeding with the trial.

For declaration of assets, it has been suggested by the Election

Commission that candidate should be asked to disclose his assets, all
immovable and movable properties which would include cash, bank
balances, fixed deposits and other savings such as shares, stocks,
debentures etc. Candidate also should be directed to disclose for
voters’ information, not only his assets but his liabilities like over-
dues to public financial institutions and government dues and charges
on his/her properties.

For other directions issued by the High Court, it has been

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

"I. Each candidate for election to Parliament or a State

Legislature should submit, along with his nomination
paper, a duly sworn affidavit, for the truth of which he is
liable, as a necessary part of his nomination paper,
furnishing therein, information on the following aspects
in relation to his candidature:

(i) whether the candidate is convicted of any offence

in any case in the past, and punished with
imprisonment or fine; if so, the details thereof,
together with the details of any pending appeals or
applications for revision in any such cases of
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conviction;

(ii) whether the candidate is accused in any pending

case, of any offence punishable with imprisonment
for two years or more, and in which charges have
been framed against him by the competent court of
law, if so, the details thereof, together with the
details of any pending appeals or applications for
revision in respect of the charges framed in any
such cases;

(iii) whether the candidate is an income tax and/or

wealth tax assessee and has been paying his tax(es)
and filing his returns regularly, wherever he is
liable, and if so, the financial year for which the
last income tax/wealth tax return has been filed;

(iv) the liabilities of the candidate, his/her spouse and

minor children; that is to say, over-dues to any
public financial institutions, any government dues,
and charges on his/her properties;

(v) the educational qualifications of the candidate.

II. The information by each candidate in respect of all

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

III. The information so furnished by each candidate in

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

If any rival candidate furnishes information to the

contrary, by means of a duly sworn affidavit, then such
affidavit of the rival candidate may also be disseminated
alongwith the affidavit of the candidate concerned.

The Court may lay down that it would be

mandatory for each candidate for election to Parliament
or State Legislature, to file along with his nomination
paper, the aforesaid duly sworn affidavit, furnishing
therein the information on the aspects detailed above and
that the nomination paper of such a candidate who fails
or refuges to file the required affidavit or files an
incomplete affidavit shall be deemed to be an incomplete
nomination paper within the meaning of section 33(1) of
the Representation of the People Act, 1951 and shall
suffer consequences according to law.

The aforesaid suggestions made by the Election Commission

would certainly mean that except certain modifications, Election
Commission virtually supports the directions issued by the High Court
and that candidates must be directed to furnish necessary information
with regard to pending criminal cases as well as assets and
educational qualification.
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Mr. Rajinder Sachhar, learned senior counsel appearing on
behalf of the petitioners relied upon the decision rendered by this
Court in Vineet Narain and Others v. Union of India and Another
[(1998) 1 SCC 226] and submitted that considering the widespread
illiteracy of the voters, and at the same time their overall culture and
character, if they are well-informed about the candidates contesting
election as M.P. or M.L.A., they would be in a position to decide
independantly to cast their votes in favour of a candidate who,
according to them, is much more efficient to discharge his functions
as M.P. or M.L.A. He, therefore, submitted that presuming that the
High Court has no jurisdiction to pass orders to fill in the gaps, this
Court can do so by exercising its powers under Article 142 which
have the effect of law.

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

"The powers conferred on this Court by the

Constitution are ample to remedy this defect and to
ensure enforcement of the concept of equality. There are
ample powers conferred by Article 32 read with Article
142 to make orders which have the effect of law by virtue
of Article 141 and there is mandate to all authorities to
act in aid of the orders of this Court as provided in
Article 144 of the Constitution. In a catena of decisions
of this Court, this power has been recognised and
exercised, if need be, by issuing necessary directions to
fill the vacuum till such time the legislature steps in to
cover the gap or the executive discharges its role."

[Emphasis supplied]

In paragraph 51, the Court pointed out previous precedents for

exercise of such power:

"In exercise of the powers of this Court under

Article 32 read with Article 142, guidelines and
directions have been issued in a large number of cases
and a brief reference to a few of them is sufficient. In
Erach Sam Kanga v. Union of India [W.P. No. 2632 of
1978 decided on 20.3.1979] the Constitution Bench laid
down certain guidelines relating to the Emigration Act.
In Lakshmi Kant Pandey v. Union of India [(1984) 2
SCC 244] (In re, Foreign Adoption), guidelines for
adoption of minor children by foreigners were laid down.
Similarly in State of W.B. v. Sampat Lal [(1985) 1 SCC
317], K. Veeraswami v. Union of India [(1991) 3 SCC
655] Union Carbide Corpn. v. Union of India [(1991) 4
SCC 584, Delhi Judicial Service Association v. State of
Gujarat (Nadiad Case) [(1991) 4 SCC 406], Delhi
Development Authority v. Skipper Construction Co. (P)
Ltd. [(1996) 4 SCC 622] and Dinesh Trivedi, M.P. v.
Union of India [(1997) 4 SCC 306] guidelines were laid
down having the effect of law, requiring rigid
compliance. In Supreme Court Advocates-on-Record
Association v. Union of India (IInd Judges case)
[(1993) 4 SCC 441], a nine-Judge Bench laid down
guidelines and norms for the appointment and transfer of
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Judges which are being rigidly followed in the matter of
appointments of High Court and Supreme Court Judges
and transfer of High Court Judges. More recently in
Vishaka v. State of Rajasthan [(1997) 6 SCC 241]
elaborate guidelines have been laid down for observance
in workplaces relating to sexual harassment of working
women. In Vishaka (supra) it was said (SCC pp. 249-50,
para 11)

"11. The obligation of this Court under Article 32

of the Constitution for the enforcement of these
fundamental rights in the absence of legislation must be
viewed along with the role of judiciary envisaged in the
Beijing Statement of Principles of the Independence of
Judiciary in the LAWASIA region. These principles
were accepted by the Chief Justices of Asia and the
Pacific at Beijing in 1995 (As amended at Manila, 28th
August, 1997) as those representing the minimum
standards necessary to be observed in order to maintain
the independence and effective functioning of the
judiciary. The objectives of the judiciary mentioned in
the Beijing Statement are:

"Objectives of the Judiciary:

10. The objectives and functions of the Judiciary

include the following:

(a) to ensure that all persons are able to live

securely under the rule of law;

(b) to promote, within the proper limits of the

judicial function, the observance and the
attainment of human rights; and

(c) to administer the law impartially among

persons and between persons and the State."

Thus, an exercise of this kind by the court is now a well-

settled practice which has taken firm roots in our
constitutional jurisprudence. This exercise is essential to
fill the void in the absence of suitable legislation to cover
the field."

Ms. Kamini Jaiswal, learned counsel appearing on behalf of

respondents in support of the decision rendered by the High Court
referred to the decision in Kihoto Hollohan v. Zachillhu and Others
[1992 Supp (2) SCC 651] wherein while considering the validity of
the Tenth Schedule of the Constitution, the Court observed
"democracy is a part of the basic structure of our Constitution; and
rule of law, and free and fair elections are basic features of
democracy. One of the postulates of free and fair elections is
provisions for resolution of election disputes as also adjudication of
disputes relating to subsequent dis-qualifications by an independant
authority". She, therefore, contended that for free and fair elections
and for survival of democracy, entire history, background and the
antecedents of the candidate are required to be disclosed to the voters
so that they can judiciously decide in whose favour they should vote;
otherwise, there would not be true reflection of electoral mandate. For
interpreting Article 324, she submitted that this provision outlines
broad and general principles giving power to the Election
Commission and it should be interpreted in a broad perspective as
held by this Court in various decisions.

In these matters, questions requiring consideration are

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1. Whether Election Commission is empowered to issue

directions as ordered by the High Court?

2. Whether a voter a citizen of this country has right to

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

For deciding the aforesaid questions, we would proceed on the

following accepted legal position.

At the outset, we would say that it is not possible for this Court
to give any directions for amending the Act or the statutory Rules. It is
for the Parliament to amend the Act and the Rules. It is also
established law that no direction can be given, which would be
contrary to the Act and the Rules.

However, it is equally settled that in case when the Act or Rules

are silent on a particular subject and the Authority implementing the
same has constitutional or statutory power to implement it, the Court
can necessarily issue directions or orders on the said subject to fill the
vacuum or void till the suitable law is enacted.

Further, it is to be stated that (a) one of the basic structure of

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

Question No.1

Whether Election Commission is empowered to issue

directions as ordered by the High Court?

For health of democracy and fair election, whether the

disclosure of assets by a candidate, his/her qualification and
particulars regarding involvement in criminal cases are necessary for
informing voters, may be illiterate, so that they can decide
intelligently, whom to vote? In our opinion, the decision of even
illiterate voter, if properly educated and informed about the contesting
candidate, would be based on his own relevant criteria of selecting a
candidate. In democracy, periodical elections are conducted for
having efficient governance for the country and for the benefit of
citizensvoters. In a democratic form of government, voters are of
utmost importance. They have right to elect or re-elect on the basis of
the antecedents and past performance of the candidate. He has choice
of deciding whether holding of educational qualification or holding of
property is relevant for electing or re-electing a person to be his
representative. Voter has to decide whether he should cast vote in
favour of a candidate who is involved in criminal case. For
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maintaining purity of elections and healthy democracy, voters are
required to be educated and well informed about the contesting
candidates. Such information would include assets held by the
candidate, his qualification including educational qualification and
antecedents of his life including whether he was involved in a
criminal case and if the case is decidedits result, if pending
whether charge is framed or cognizance is taken by the Court? There
is no necessity of suppressing the relevant facts from the voters.

The Constitution Bench of this Court in Mohinder Singh Gill v.

The Chief Election Commissioner, New Delhi [(1978) 1 SCC 405]
while dealing with a contention that Election Commission has no
power to cancel the election and direct re-poll, referred to the
pervasive philosophy of democratic elections which Sir Winston
Churchill vivified in matchless word:

"At the bottom of all tributes paid to democracy is the

little man, walking into a little booth, with a little pencil,
making a little cross on a little bit of paperno amount of
rhetoric or voluminous discussion can possibly diminish the
overwhelming importance of the point.

If we may add, the little, large Indian shall not be

hijacked from the course of free and fair elections by
mob muscle methods, or subtle perversion of discretion
by men ’dressed in little, brief authority’. For ’be you
ever so high, the law is above you’.

The moral may be stated with telling terseness in

the words of William Pitt: ’Where laws end, tyranny
begins’. Embracing both these mandates and
emphasizing their combined effect is the elemental law
and politics of Power best expressed by Benjamin
Disraeli [Vivian Grey, BK VI Ch 7]:

I repeat . . . that all power is a trust that we are

accountable for its exercise that, from the people and for
the people, all springs, and all must exist."

Further, the Court in (para 23) observed thus:

"Democracy is government by the people. It is a
continual participative operation, not a cataclysmic,
periodic exercise. The little man, in his multitude,
marking his vote at the poll does a social audit of his
Parliament plus political choice of this proxy. Although
the full flower of participative Government rarely
blossoms, the minimum credential of popular
government is appeal to the people after every term for a
renewal of confidence. So we have adult franchise and
general elections as constitutional compulsions. ’The
right of election is the very essence of the constitution’
(Junius). It needs little argument to hold that the heart of
the Parliamentary system is free and fair elections
periodically held, based on adult franchise, although
social and economic democracy may demand much
more."

Thereafter, the Court dealt with the scope of Article 324 and
observed (in para 39) thus:

".Article 324, in our view, operates in areas left

unoccupied by legislation and the words
’superintendence, direction and control, as well as
’conduct of all elections’, are the broadest terms.."
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The Court further held:

"Our conclusion on this limb of the contention is

that Article 324 is wide enough to supplement the powers
under the Act, as here, but subject to the several
conditions on its exercise we have set out."

The Court also held (in para 77) thus:

"We have been told that wherever the Parliament

has intended a hearing it has said so in the Act and the
rules and inferentially where it has not specificated it is
otiose. There is no such sequitur. The silence of a
statute has no exclusionary effect except where it flows
from necessary implication. Article 324 vests a wide
power and where some direct consequence on candidate
emanates from its exercise we must read this functional
obligation."

In concluding portion of paragraph 92, the Court inter alia

observed thus:

"1(b) Election, in this context, has a very wide

connotation commencing from the Presidential
notification calling upon the electorate to elect and
culminating in the final declaration of the returned
candidate.

2(a) The Constitution contemplates a free and fair

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

(b) Two limitations at least are laid on its plenary

character in the exercise thereof. Firstly, when
Parliament or any State Legislature has made valid
law relating to or in connection with elections, the
Commission, shall act in conformity with, not in
violation of, such provisions but where such law is
silent Article 324 is a reservoir of power to act for
the avowed purpose of, not divorced from, pushing
forward a free and fair election with expedition"

In concurring judgment, Goswami, J. with regard to Article 324

observed (in para 113) thus:

".Since the conduct of all elections to the

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

[Emphasis supplied]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 21

The aforesaid decision of the Constitution Bench unreservedly

lays down that in democracy the little man voter has overwhelming
importance on the point and the little-large Indian (voter) should not
be hijacked from the course of free and fair elections by subtle
perversion of discretion of casting votes. In a continual participative
operation of periodical election, the voter does a social audit of his
candidate and for such audit he must be well informed about the past
of his candidate. Further, Article 324 operates in areas left
unoccupied by legislation and the words ’superintendence, direction
and control’ as well as ’conduct of all elections’ are the broadest
terms. The silence of statute has no exclusionary effect except where
it flows from necessary implication. Therefore, in our view, it would
be difficult to accept the contention raised by Mr. Salve, learned
Solicitor General and Mr. Ashwini Kumar, learned senior counsel
appearing on behalf of Intervenor that if there is no provision in the
Act or the Rules, the High Court ought not to have issued such
directions to the Election Commission. It is settled that the power of
the Commission is plenary in character in exercise thereof. In a
statutory provisions or rules, it is known that every contingency could
not be foreseen or anticipated with precision, therefore, Commission
can cope with situation where the field is unoccupied by issuing
necessary orders.

Further, this Court in Kanhiya Lal Omar v. R.K. Trivedi and

others [(1985) 4 SCC 628] dealt with the Constitutional validity of the
Election Symbols (Reservation and Allotment) Order, 1968 which
was issued by the Election Commission in its plenary exercise of
power under Article 324 of the Constitution read with Rules 5 and 10
of the Conduct of Election Rules, 1961. The challenge was on the
ground that Symbols Order which is legislative in character could not
be issued by the Commission because the Commission is not entrusted
by law the power to issue such an order regarding the specification,
reservation and allotment of symbol that may be chosen by the
candidates at elections in parliamentary and Assembly constituencies.
It was urged that Article 324 of the Constitution which vests the
power of superintendence, direction and control of all elections to
Parliament and to the Legislature of a State in the Commission cannot
be construed as conferring the power on the Commission to issue the
Symbols. The Court negatived the said contention and pertinently
observed that "the word ’elections’ in Article 324 is used in a wide
sense so as to include the entire process of election which consists of
several stages and it embraces many steps, some of which may have
an important bearing on the result of the process. India is a country
which consists of millions of voters. Although they are quite
conscious of their duties politically, unfortunately, a large percentage
of them are still illiterate." The Court in paragraph 16 held:

"16. Even if for any reason, it is held that any of

the provisions contained in the Symbols Order are not
traceable to the Act or the Rules, the power of the
Commission under Article 324 (1) of the Constitution
which is plenary in character can encompass all such
provisions. Article 324 of the Constitution operates in
areas left unoccupied by legislation and the words
’superintendence’, ’direction’ and ’control’ as well as
"conduct of all elections" are the broadest terms which
would include the power to make all such provisions.
{See Mohinder Singh Gill v. Chief Election
Commissioner, New Delhi [(1978) 1 SCC 405] and A.C.
Jose v. Sivan Pillai [(1984) 2 SCC 656]}.

The Court further observed:

"..While construing the expression

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 21
"superintendence, direction and control" in Article 324
(1), one has to remember that every norm which lays
down a rule of conduct cannot possibly be elevated to the
position of legislation or delegated legislation. There are
some authorities or persons in certain grey areas who
may be sources of rules of conduct and who at the same
time cannot be equated to authorities or persons who can
make law, in the strict sense in which it is understood in
jurisprudence. A direction may mean an order issued to a
particular individual or a precept which many may have
to follow. It may be a specific or a general order. One
has also to remember that the source of power in this case
is the Constitution, the highest law of the land, which is
the repository and source of all legal powers and any
power granted by the Constitution for a specific purpose
should be construed liberally so that the object for which
the power is granted is effectively achieved. Viewed
from this angle it cannot be said that any of the
provisions of the Symbols Order suffers from want of
authority on the part of the Commission, which has
issued it."

Thereafter, this Court in Common Cause (A Registered

Society) v. Union of India and others [(1996) 2 SCC 752] dealt with
election expenses incurred by political parties and submission of
return and the scope of Article 324 of the Constitution, where it was
contended that cumulative effect of the three statutory provisions,
namely, Section 293-A of the Companies Act, 1956, Section 13-A of
the Income Tax Act, 1961 and Section 77 of the Representation of the
People Act, 1951, is to bring transparency in the election funding and
people of India must know the source of expenditure incurred by the
political parties and by the candidates in the process of election. It
was contended that election in the country are fought with the help of
money power which is gathered from black sources and once elected
to power, it becomes easy to collect tons of black money, which is
used for retaining power and for re-election and that this vicious circle
has totally polluted the basic democracy in the country. The Court
held that purity of election is fundamental to democracy and the
Commission can ask the candidates about the expenditure incurred by
the candidates and by a political party and for this purpose. The Court
also held:

"The political parties in their quest for power

spend more than one thousand crore of rupees on the
General Election (Parliament alone), yet nobody accounts
for the bulk of the money so spent and there is no
accountability anywhere. Nobody discloses the source of
the money. There are no proper accounts and no audit.
From where does the money come nobody knows. In a
democracy where rule of law prevails this type of naked
display of black money, by violating the mandatory
provisions of law, cannot be permitted."

Thereafter, the Court observed that under Article 324, the

Commission can issue suitable directions to maintain the purity of
election and in particular to bring transparency in the process of
election. The Court also held (paragraph 26) thus:
"Superintendence and control over the conduct of
election by the Election Commission include the scrutiny
of all expenses incurred by a political party, a candidate
or any other association or body of persons or by any
individual in the course of the election. The expression
"Conduct of election" is wide enough to include in its
sweep, the power to issue directionsin the process of
the conduct of an electionto the effect that the political
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 21
parties shall submit to the Election Commission, for its
scrutiny, the details of the expenditure incurred or
authorised by the parties in connection with the election
of their respective candidates."

The Court further observed that Constitution has made

comprehensive provision under Article 324 to take care of surprise
situations and it operates in areas left unoccupied by legislation.

Question No.2

Right to know about the candidates contesting elections.

Now we would refer to various decisions of this Court dealing

with citizens’ right to know which is derived from the concept of
’freedom of speech and expression’. The people of the country have a
right to know every public act, everything that is done in a public way
by the public functionaries. MPs or MLAs are undoubtedly public
functionaries. Public education is essential for functioning of the
process of popular government and to assist the discovery of truth and
strengthening the capacity of an individual in participating in decision
making process. The decision making process of a voter would
include his right to know about public functionaries who are required
to be elected by him.

In State of Uttar Pradesh v. Raj Narain and Others [(1975) 4

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

"In a government of responsibility like ours, where

all the agents of the public must be responsible for their
conduct, there can be but few secrets. The people of this
country have a right to know every public act, everything
that is done in a public way, by their public
functionaries. They are entitled to know the particulars
of every public transaction in all its bearing."

In Indian Express Newspapers (Bombay) Private Ltd. and

Others etc. v. Union of India and others [(1985) 1 SCC 641], this
Court dealt with the validity of customs duty on the newsprint in
context of Article 19(1)(a). The Court observed (in para 32) thus:

"The purpose of the press is to advance the public

interest by publishing facts and opinions without which a
democratic country cannot make responsible
judgments."

The Court further referred (in para 35) the following

observations made by this Court in Romesh Thappar v. State of
Madras (1950 SCR 594): -

"(The freedom) lay at the foundation of all

democratic organisations, for without free political
discussion no public education, so essential for the proper
functioning of the processses of popular government, is
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possible. A freedom of such amplitude might involve
risks of abuse (But) "it is better to leave a few of its
noxious branches to their luxuriant growth, than, by
pruning them away, to injure the vigour of those yielding
the proper fruits".

Again in paragraph 68, the Court observed: -

".The public interest in freedom of discussion (of

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

From the afore-quoted paragraph, it can be deduced that the

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

In Secretary, Ministry of Information and Broadcasting,

Government of India and Others v. Cricket Association of Bengal
and Others [(1995) 2 SCC 161], this Court considered the question of
right to telecast sports event and after considering various decisions,
the Court referred to Article 10 of the European Convention on
Human Rights which inter alia states as follows (para 36):

"10.1. Everyone has the right to freedom of

expression. This right shall include freedom to hold
opinions and to receive and impart information and
ideas without interference by public authority and
regardless of frontiers."

Thereafter, the Court summarised the law on the freedom of

speech and expression under Article 19(1)(a) as restricted by Article
19(2) thus: -

"The freedom of speech and expression includes

right to acquire information and to disseminate it.
Freedom of speech and expression is necessary, for self-
fulfilment. It enables people to contribute to debate on
social and moral issues. It is the best way to find a truest
model of anything, since it is only through it that the
widest possible range of ideas can circulate. It is the only
vehicle of political discourse so essential to democracy.
Equally important is the role it plays in facilitating
artistic and scholarly endeavours of all sorts.."
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 21

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

"In a team event such as cricket, football, hockey

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

The Court thereafter (in paragraph 82) held:

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

The Court also observed"a successful democracy posits an

’aware’ citizenry."

If right to telecast and right to view to sport games and right to

impart such information is considered to be part and parcel of Article
19(1)(a), we fail to understand why the right of a citizen/voter a
little man to know about the antecedents of his candidate cannot be
held to be a fundamental right under Article 19(1)(a)? In our view,
democracy cannot survive without free and fair election, without free
and fairly informed voters. Votes cast by uninformed voters in favour
of X or Y candidate would be meaningless. As stated in the aforesaid
passage, one-sided information, disinformation, misinformation and
non-information all equally create an uninformed citizenry which
makes democracy a farce. Therefore, casting of a vote by
misinformed and non-informed voter or a voter having one-sided
information only is bound to affect the democracy seriously. Freedom
of speech and expression includes right to impart and receive
information which includes freedom to hold opinions. Entertainment
is implied in freedom of ’speech and expression’ and there is no
reason to hold that freedom of speech and expression would not cover
right to get material information with regard to a candidate who is
contesting election for a post which is of utmost importance in the
democracy.
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In Dinesh Trivedi, M.P. and Others v. Union of India and

Others [(1997) 4 SCC 306], the Court dealt with a petition for
disclosure of a report submitted by a Committee established by the
Union of India on 9th July 1993 which was chaired by erstwhile
Home Secretary Shri N.N. Vohra which subsequently came to be
popularly known as Vohra Committee. During July 1995, a known
political activist Naina Sahni was murdered and one of the persons
arrested happened to be an active politician who had held important
political posts and newspaper report published a series of articles on
the criminalisation of politics within the country and the growing links
between political leaders and mafia members. The attention of the
masses was drawn towards the existence of the Vohra Committee
Report. It was suspected that the contents of the Report were such
that the Union Government was reluctant to make it public.

In the said case, the Court dealt with citizen’s rights to freedom
of information and observed "in modern constitutional democracies,
it is axiomatic that citizens have a right to know about the affairs of
the Government which, having been elected by them, seek to
formulate sound policies of governance aimed at their welfare". The
Court also observed "democracy expects openness and openness is
concomitant of a free society and the sunlight is a best disinfectant".

Mr. Ashwini Kumar, learned senior counsel appearing on

behalf of the intervenor submitted that the aforesaid observations are
with regard to citizen’s right to know about the affairs of the
Government, but this would not mean that citizens have a right to
know the personal affairs of MPs or MLAs. In our view, this
submission is totally misconceived. There is no question of knowing
personal affairs of MPs or MLAs. The limited information is
whether the person who is contesting election is involved in any
criminal case and if involved what is the result? Further there are
widespread allegations of corruption against the persons holding post
and power. In such a situation, question is not of knowing personal
affairs but to have openness in democracy for attempting to cure
cancerous growth of corruption by few rays of light. Hence, citizens
who elect MPs or MLAs are entitled to know that their representative
has not misconducted himself in collecting wealth after being elected.
This information could be easily gathered only if prior to election, the
assets of such person are disclosed. For this purpose, learned counsel
Mr. Murlidhar referred to the practice followed in the United States
and the form which is required to be filled in by a candidate for Senate
which provides that such candidate is required to disclose all his
assets and that of his spouse and dependants. The form is required to
be re-filled every year. Penalties are also prescribed which include
removal from ballot.

Learned counsel Mrs. Kamini Jaiswal referred to All India

Service (Conduct) Rules, 1968 and pointed out that a member of All
India Service is required to disclose his/her assets including that of
spouse and the dependant children. She referred to Rule 16 of the said
Rules, which provides for declaration of movable, immovable and
valuable property by a person who becomes Member of the Service.
Relevant part of Rule 16 is as under:

"16. (1) Every person shall, where such person is

a member of the Service at the commencement of these
rules, before such date after such commencement as may
be specified by the Government in this behalf, or, where
such person becomes a member of the Service after
commencement, on his first appointment to the Service
submits a return of his assets and liabilities in such form
as may be prescribed by the Government giving the full
particulars regarding: -
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(a) the immovable property owned by him, or

inherited or acquired by him or held by him on
lease or mortgage, either in his own name or in
the name of any member of his family or in the
name of any other person;

(b) shares, debentures, postal Cumulative Time

Deposits and cash including bank deposits
inherited by him or similarly owned, acquired
or held by him;

(c) other movable property inherited by him or

similarly owned, acquired or held by him; and

(d) debts and other liabilities incurred by him

directly or indirectly"

Such officer is also required to submit an annual return giving

full particulars regarding the immovable and movable property
inherited by him or owned or acquired or held by him on lease or
mortgage either in his own name or in the name of any member of his
family or in the name of any other person.

It is also submitted that even the Gazetted Officers in all

government services are required to disclose their assets and thereafter
to furnish details of any acquisition of property annually. In our view,
it is rightly submitted that in a democratic form of government, MP or
MLA is having higher status and duty to the public. In P.V.
Narasimha Rao v. State (CBI/SPE) [(1998) 4 SCC 626], the Court
inter alia considered whether Member of Parliament is a public
servant? The Court [in para 162] held thus: -

" public servant is "any person who holds an

office by virtue of which he is authorised or required to
perform any public duty". Not only, therefore, must the
person hold an office but he must be authorised or
required by virtue of that office to perform a public duty.
Public duty is defined by Section 2(b) of the said Act to
mean "a duty in the discharge of which the State, the
public or that community at large has an interest". In a
democratic form of government it is the Member of
Parliament or a State Legislature who represents the
people of his constituency in the highest lawmaking
bodies at the Centre and the State respectively. Not only
is he the representative of the people in the process of
making the laws that will regulate their society, he is
their representative in deciding how the funds of the
Centre and the State shall be spent and in exercising
control over the executive. It is difficult to conceive of a
duty more public than this or of a duty in which the State,
the public and the community at large would have greater
interest."

The aforesaid underlined portion highlights the important status

of MP or State Legislature.

Finally, in our view this Court would have ample power to

direct the Commission to fill the void, in absence of suitable
legislation, covering the field and the voters are required to be well-
informed and educated about contesting candidates so that they can
elect proper candidate by their own assessment. It is the duty of the
executive to fill the vacuum by executive orders because its field is
coterminous with that of the legislature, and where there is inaction by
the executive, for whatever reason, the judiciary must step in, in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 21
exercise of its constitutional obligations to provide a solution till such
time the legislature acts to perform its role by enacting proper
legislation to cover the field. The adverse impact of lack of probity in
public life leading to a high degree of corruption is manifold.
Therefore, if the candidate is directed to declare his/her spouse’s and
dependants’ assetsimmovable, moveable and valuable articlesit
would have its own effect. This Court in Vishaka v. State of
Rajasthan [(1997) 6 SCC 241] dealt with incident of sexual
harassment of a woman at work place which resulted in violation of
fundamental right of gender equality and the right to life and liberty
and laid down that in absence of legislation, it must be viewed along
with the role of judiciary envisaged in the Beijing Statement of
Principles of independence of Judiciary in the LAWASIA region. The
decision has laid down the guidelines and prescribed the norms to be
strictly observed in all work places until suitable legislation is enacted
to occupy the field. In the present case also, there is no legislation or
rules providing for giving necessary information to the voters. As
stated earlier, this case was relied upon in Vineet Narain’s case
(supra) where the Court has issued necessary guidelines to the CBI
and the Central Vigilance Commission (CVC) as there was no
legislation covering the said field to ensure proper implementation of
rule of law.

To sum up the legal and constitutional position which emerges

from the aforesaid discussion, it can be stated that:

1. The jurisdiction of the Election Commission is wide enough to

include all powers necessary for smooth conduct of elections
and the word ’elections’ is used in a wide sense to include the
entire process of election which consists of several stages and
embraces many steps.

2. The limitation on plenary character of power is when the

Parliament or State Legislature has made a valid law relating to
or in connection with elections, the Commission is required to
act in conformity with the said provisions. In case where law is
silent, Article 324 is a reservoir of power to act for the avowed
purpose of having free and fair election. Constitution has taken
care of leaving scope for exercise of residuary power by the
Commission in its own right as a creature of the Constitution in
the infinite variety of situations that may emerge from time to
time in a large democracy, as every contingency could not be
foreseen or anticipated by the enacted laws or the rules. By
issuing necessary directions, Commission can fill the vacuum
till there is legislation on the subject. In Kanhiya Lal Omar’s
case, the Court construed the expressions "superintendence,
direction and control" in Article 324(1) and held that a direction
may mean an order issued to a particular individual or a precept
which may have to follow and it may be a specific or a general
order and such phrase should be construed liberally
empowering the election commission to issue such orders.

3. The word "elections" includes the entire process of election

which consists of several stages and it embraces many steps,
some of which may have an important bearing on the process of
choosing a candidate. Fair election contemplates disclosure by
the candidate of his past including the assets held by him so as
to give a proper choice to the candidate according to his
thinking and opinion. As stated earlier, in Common Cause case
(supra), the Court dealt with a contention that elections in the
country are fought with the help of money power which is
gathered from black sources and once elected to power, it
becomes easy to collect tons of black money, which is used for
retaining power and for re-election. If on affidavit a candidate
is required to disclose the assets held by him at the time of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 21
election, voter can decide whether he could be re-elected even
in case where he has collected tons of money.

Presuming, as contended by the learned senior counsel Mr.

Ashwini Kumar, that this condition may not be much effective for
breaking a vicious circle which has polluted the basic democracy in
the country as the amount would be unaccounted. May be true, still
this would have its own effect as a step-in-aid and voters may not
elect law-breakers as law-makers and some flowers of democracy
may blossom.

4. To maintain the purity of elections and in particular to bring

transparency in the process of election, the Commission can ask
the candidates about the expenditure incurred by the political
parties and this transparency in the process of election would
include transparency of a candidate who seeks election or re-
election. In a democracy, the electoral process has a strategic
role. The little man of this country would have basic
elementary right to know full particulars of a candidate who is
to represent him in Parliament where laws to bind his liberty
and property may be enacted.

5. The right to get information in democracy is recognised all

throughout and it is natural right flowing from the concept of
democracy. At this stage, we would refer to Article 19(1) and
(2) of the International Covenant of Civil and Political Rights
which is as under: -

"(1) Everyone shall have the right to hold opinions

without interference.

(2) Everyone shall have the right to freedom of

expression; this right shall include freedom to
seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through
any other media of his choice."

6. Cumulative reading of plethora of decisions of this Court as

referred to, it is clear that if the field meant for legislature and
executive is left unoccupied detrimental to the public interest,
this Court would have ample jurisdiction under Article 32 read
with Articles 141 and 142 of the Constitution to issue necessary
directions to the Executive to subserve public interest.

7. Under our Constitution, Article 19(1)(a) provides for freedom

of speech and expression. Voters’ speech or expression in case
of election would include casting of votes, that is to say, voter
speaks out or expresses by casting vote. For this purpose,
information about the candidate to be selected is must. Voter’s
(little mancitizen’s) right to know antecedents including
criminal past of his candidate contesting election for MP or
MLA is much more fundamental and basic for survival of
democracy. The little man may think over before making
his choice of electing law breakers as law makers.

In this view of the matter, it cannot be said that the directions

issued by the High Court are unjustified or beyond its jurisdiction.
However, considering the submissions made by the learned counsel
for the parties at the time of hearing of this matter, the said directions
are modified as stated below.

The Election Commission is directed to call for information on

affidavit by issuing necessary order in exercise of its power under
Article 324 of the Constitution of India from each candidate seeking
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 21
election to Parliament or a State Legislature as a necessary part of his
nomination paper, furnishing therein, information on the following
aspects in relation to his/her candidature:

(1) Whether the candidate is convicted/acquitted/

discharged of any criminal offence in the pastif
any, whether he is punished with imprisonment or
fine?

(2) Prior to six months of filing of nomination,

whether the candidate is accused in any pending
case, of any offence punishable with imprisonment
for two years or more, and in which charge is
framed or cognizance is taken by the Court of law.
If so, the details thereof;

(3) The assets (immovable, movable, bank balances

etc.) of a candidate and of his/her spouse and that
of dependants.

(4) Liabilities, if any, particularly whether there are

any over dues of any public financial institution or
Government dues.

(5) The educational qualifications of the candidate.

It is to be stated that the Election Commission has from time to

time issued instructions/orders to meet with the situation where the
field is unoccupied by the legislation. Hence, the norms and
modalities to carry out and give effect to the aforesaid directions
should be drawn up properly by the Election Commission as early as
possible and in any case within two months.

In the result, Civil Appeal No.7178 of 2001 is partly allowed

and the directions issued by the High Court are modified as stated
above. Appeal stands disposed of accordingly.

Writ Petition (C) No. 294 of 2001 is allowed to the aforesaid

extent.

There shall be no order as to costs.

........J.
(M.B. SHAH)

........J.
(BISHESHWAR PRASAD SINGH)

........J.
(H.K. SEMA)
May 2, 2002.