CASE LAW :

UNION OF INDIA V/S ASSOCIATION OF DEMOCRATIC REFORMS

 Election Commission Of India
• The Election Commission of India (ECI) is an autonomous constitutional
authority responsible for administering election processes in India at national and
state level.
• It is established in 1950.
• The body administers elections to the Lok Sabha, Rajya Sabha, State
Legislative Assemblies, State Legislative Councils and the offices of
the President and Vice President of the country.
• The Election Commission operates under the authority of Constitution as
per Article 324,[ and subsequently enacted Representation of the People Act.
 Law Commission Of India
• Law Commission of India is an executive body established by an order of
the Government of India.
• Its major function is to work for legal reform.
• The first Law Commission was established during the British Raj era in 1834 by
the Charter Act of 1833. It was presided by Lord Macaulay.
• The Fifteenth Law Commission established in 1997 under the Chairmanship of
Justice B. P. Jeevan Reddy presented in 1999 its 170th report regarding reforms
in electoral laws.
 Association For Democratic Reforms
History
• The Association for Democratic Reforms (ADR) is an Indian non-partisan, non-governmental organization
which works in the area of electoral and political reforms.
• ADR came into existence in 1999.
• A group of Professors from the Indian Institute of Management (IIM) Ahmedabad and Bangalore filed
a Public Interest Litigation (PIL) with the Delhi High Court regarding the disclosure of the criminal,
financial and educational background of the candidates contesting elections.
• The PIL was upheld by the Delhi High Court in 2000 but the Government of India appealed to the Supreme
Court of India against the High Court judgement. However, in 2002  and subsequently in 2003, the Supreme
Court made it mandatory for all the candidates contesting elections to disclose their criminal, financial and
educational background prior to the polls by filing an affidavit with the Election Commission of India.
• The process led to greater awareness among voters of criminal cases against politicians.
 1st Judgement overview
• Delhi high court judgement : 22nd November 2000
• ADR (petitioner) seeks voters right to information and knowledge of candidates contesting
election and make this information available to public and print and electronic media under
article 19(1)(a).
• Besides the Petitioner also seeks direction to respondent no. 2 (ECI) the directions to amend
the provisions of Representation of People Act, 1951 with recommendations of Law
Commission of India contained in its 170th report.
1. To insert section 4(A) i.e to state qualification, assets, any criminal charge.
2. Changes in forms 2A to 2E provided by election commission .Moreover, the words "that I am
contesting this election as an independent candidate" in Forms 2A and 2B should be deleted.
The Respondent no. 1 (GoI) stated that it will create differences in parties and instead they will
pass a reform bill to put check on criminalization in politics.
 Decision of High court
• Delhi high court stated that they cannot give a direction to the Parliament or to the rule making authority to
amend the Representation of the People Act, 1951, and forms 2A to 2E of the Conduct of Election Rules 1961,
as the power to legislate with respect to the matter of Election to Parliament and to the State Legislatures or
to carry out amendments in the existing provisions of the Representation of the People Act, 1951 lies in the
exclusive domain of Parliament under Article 246 of the Constitution read with Entry 72 of List I of the
Seventh Schedule thereof. They cannot trench upon that field even if reforms in the election law may be the
felt necessity of time.
• Right must be secured to the citizens with reference to the elections as well. This right along with other
fundamental rights constituting the core of our Constitution will not acquire its full potential till such time the
voter is posted with right information for making a right choice at the hasting's to break the linkages which
Vohra Committee has brought out in its report.
• In addition thereto we direct that pre-election debates be held before elections which should be telecast by
Doordarshan on its national network in which authorised representatives of the political parties fielding the
candidates present their election manifestoes, programmes, plans and background and capabilities of their
candidates, and answer questions posed by the audience relating thereto,
• Directions should be drawn up by the Election Commission within four months.
 References referred by Delhi high court
• letter written by the Chief Election Commissioner to the then Prime Minister in Sept. 1997. In that
letter, the Commission has pointed out grave incongruities in the existing provisions of Sub-section
(1),(2)and 3 of section 8 of Representation of the People Act, 1951.
• Delhi high also took note of the National seminar regarding malpractices and criminalization in
politics held by Law commission of India.
• It also referred a judgement cited by supreme court stating criminalization in politics Gadakh
Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil
• A reference is also made to the report of a committee headed by Shri N.N. Vohra, Former Home
Secretary, Government of India, known as "Vohra Committee Report", submitted to the Central
Government in the year 1995, to bring home the extent of penetration of crime in the political arena.
• The book titled the “Pathology of Corruption" (1998, Harper Collin Publishers, India) authored by
Shri S.S. Gill, a career civil servant who retired as Secretary, Ministry of Information and
Broadcasting
 References regarding rights of voters under article 19 (1)(a)

• In State of U.P. v. Raj Narain, , it was held that Article 19(1)(a) not only guarantees freedom of
speech and expression, it also ensures to the citizens a right to receive information.
• In Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association
of Bengal, , the Supreme Court commenting on the scope of Article 19(1)(a) held that the
freedom of speech and expression includes right to acquire information and to disseminate it.
• In Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, , Article 19(1)(a) The
right to freedom of speech and expression was held to include the right to propagate one's views
through print media, i.e., periodicals, magazines or journals, or through other communication
channels, for example, radio and television.
2nd Judgement overview
• Appeal to supreme court : 2nd May 2001
• The order passed by Delhi high court was challenged by Union of India.
• Union of India contended 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.
• PUCL people’s union of civil liberties also file a writ petition under article 32 on same grounds for directing
union of India and ECI to amend the Act.
• 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 various Sections of the Act and submitted 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 direction ought not to have been issued.
 Submissions upheld
• The election commission of India further submitted the self proposed rules to submit
information regarding assets, criminal records and qualification.
• 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, if they are well informed about the candidates
contesting election they would be in a position to decide independently 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.
 Decision given by supreme court in appeal
• The Election Commission is directed to call for information on affidavit under Article 324 of the Constitution of
India from each candidate seeking election to Parliament or State Legislature on :-
• 1. Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past - if 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.
• Hence, 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
3rd Judgement overview
• Appeal to supreme court : 13th march 2003
• These writ petition under Article 32 of the Constitution of India have been filed
challenging the validity of the Representation of the People (Amendment)
Ordinance, 2002 promulgated by the President of India on 24th August 2002.
• The question to be decided is whether it is in accordance with what has been
declared in the said judgement?
• 33B. Candidate to furnish information only under the Act and the rules
Notwithstanding anything contained in any judgment, decree or order of any
court or any direction, order or any other instruction issued by the Election
Commission, no candidate shall be liable to disclose or furnish any such
information, in respect of his election, which is not required to be disclosed or
furnished under this Act or the rules made thereunder”.
Submissions upheld
• It is contended by learned Senior Counsel Mr. Rajinder Sachar and Mr. P.P. Rao for the petitioners that
the Section 33B is void as a law cannot be passed which violates the fundamental rights of the
citizens/voters, declared and recognized by this Court.
• It will not be possible to have free and fair elections.
• By issuing the Ordinance, the Government has arrogated to itself the power to decide unilaterally for
nullifying the decision rendered by this Court without considering whether it can pass legislation which
abridges fundamental right guaranteed under Article 19(1)(a).
• learned Solicitor General Mr. Kirit N. Raval and learned senior counsel Mr. Arjun Jaitley appearing on
behalf of the intervenor, submitted that the aforesaid Ordinance/Amended Act is in consonance with the
judgment rendered by this Court and the vacuum pointed out by the said judgment is filled in by the
enactment. It is also contended by learned senior counsel Mr. Jaitley that voters’ right to know the
antecedents of the candidate is not part of the fundamental rights, but it is a derivative fundamental
right on the basis of interpretation of Article 19(1)(a) given by this Court.
• It is submitted that the Ordinance/Amended Act is in public interest and, therefore, it cannot be held to
be illegal or void.
• The supreme court also stated a detail chart of comparison between the order issued by the
court and the amendments made according to the said order.
• Further, in The Municipal Corporation of the City of Ahmedabad and another etc. v. The
New Shrock Spg. And Wvg. Co. Ltd. etc. etc. [(1970) 2 SCC 280] this Court (in para 7) held
thus:—
• “…. But no Legislature in this country has power to ask the instrumentalities of the State to
disobey or disregard the decisions given by courts. The limits of the power of Legislatures to
interfere with the directions issued by courts were considered by several decisions of this Court.
• Learned senior counsel Mr. Jaitley developed an ingenious submission that as there is no
specific fundamental right of the voter to know antecedents of a candidate, the declaration by
this Court of such fundamental right can be held to be derivative, therefore, it is open to the
Legislature to nullify it by appropriate legislation.
• In our view, this submission requires to be rejected as there is no such concept of derivative
fundamental rights.
• Learned counsel for the respondents relied upon R. Rajagopal alias R.R. Gopal
and another v. State of T.N. and others [(1994) 6 SCC 632] and submitted that
in the said case the Court observed that right to privacy is not enumerated as
fundamental right in our Constitution but has been inferred from Article 21. the
Court held that a citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child-bearing and education among other
matters. None can publish anything concerning the above matters without his
consent—whether truthful or otherwise and whether laudatory or critical. Position
may, however, be different, if a person voluntarily thrusts himself into controversy
and this is for the reason that once a matter becomes a matter of public record, the
right to privacy no longer subsists and it becomes a legitimate subject for
comment by press and media among others.
 Decision of supreme court
• Legislature cannot declare that decision rendered by the Court is not binding or is of no effect.
It is true that legislature is entitled to change the law with retrospective effect which forms the basis
of a judicial decision. This exercise of power is subject to constitutional provision, therefore, it
cannot enact a law which is violative of fundamental right. (B) Section 33-B
• Amended Act does not wholly cover the directions issued by this Court.
• The judgment rendered by this Court in Association for Democratic Reforms (supra) has attained
finality, therefore, there is no question of interpreting constitutional provision which calls for
reference under Article 145(3).
• Right to vote would be meaningless unless the citizens are well informed about the antecedents
of a candidate. There can be little doubt that exposure to public gaze and scrutiny is one of the
surest means to cleanse our democratic governing system and to have competent legislatures.
• In the result, Section 33-B of the Amended Act is held to be illegal, null and void.