In the earlier case of Union of India v. Association for Democratic Reforms and Another (2002), the Supreme Court had held that citizens have a right to know about public functionaries and candidates for office, including their assets and criminal and educational backgrounds, and found that right to be derived from the constitutional right to freedom of speech and expression. The Parliament then essentially nullified part of that ruling by amending the Representation of the People Act so as to require political candidates to disclose certain criminal records; namely, any charges or convictions for any offence punishable with imprisonment for two years or more. Moreover, the Act expressly stated that no candidate could be compelled to disclose any additional information, including educational qualifications and assets and liabilities, “notwithstanding anything contained in the judgment of any court or directions issued by the Election Commission” (Section 33B).
The petitioner in the instant case, the Union for Civil Liberties (UCL), filed a petition with the Supreme Court challenging the constitutionality of Section 33B. In particular, UCL contended that the provision was arbitrary on its face and violated fundamental rights of the voters as previously recognized by the Supreme Court; and “that without exercise of the right to know the relevant antecedents of the candidate, it will not be possible to have free and fair elections” (p. 6). The interveners submitted that the Amended Act was consistent with the 2002 judgment (p. 6) and “that it cannot be held that a voter has any fundamental right of knowing the antecedents/assets of a candidate contesting the election” (p. 32).
The Court reiterated the main findings in Union of India v. Association for Democratic Reforms and Another.
It observed that the judgment in that case was a final decision that had precedential effect and that, accordingly, Article 19(1) of the Constitution (freedom of speech and expression) should be interpreted to include a “fundamental right [of the voters’] to know relevant antecedents of the candidate contesting the elections” (p. 9). In other words, “information to a voter […] is one facet of the fundamental right [of freedom of speech and expression] […]” (p. 20).The Court ruled that Parliament cannot exercise its powers in violation of fundamental rights and has no power to declare a court’s decision as void or of no effect (p. 24). Therefore, once the Supreme Court held that a voter has a fundamental right to know candidates’ qualifications, this right may be limited only in cases provided by Article 19(2) of the Constitution (p. 24).The fundamental right of the voters to know relevant qualifications of the candidate is independent of any statutory rights under the election law (p. 41); when a statutory provision violates a fundamental right, such provision must be struck down (p. 35).
With respect to the relationship between the right to access asset declarations of the candidates and the right to privacy, the Court emphasized that the right to privacy is not absolute and “a person having assets or income is normally required to disclose the same under the Income Tax Act or such similar fiscal legislation” (pp. 29-30). This is especially true for candidates for public offices. Disclosure of asset declarations is “ the necessity of the day because of statutory provisions of controlling wide spread corrupt practices” (p. 30).
For all of the above reasons, the Court declared Section 33-B of the Amended Act “to be illegal, null and void” (p. 41).
Judgment of the Court.
Judgment in Union of India v. Association for Democratic Reforms and Another (2002).