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The Mother India

  A Home page to achieve Electoral reforms, true democracy & citizens sovereignty in India

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ELECTION COMMISION OF INDIA

                       Nirvachan Sadan, Ashoka Road, New Delhi – 110 001.  

 

            No. 3/ER/2002/JS-II/Vol-III                                                Dated : 28th June, 2002

O R D E R 

1.      Whereas, the superintendence, direction and control, inter alia, of all elections to

Parliament and to the Legislature of every State are vested in the Election Commission by Article 324 (1) of the Constitution of India;

2.      And whereas, the Hon’ble High Court of Delhi, by its order dated 2nd November,

2000 in Writ Petition No. 7257 of 1999 (Association for Democratic Reforms v Union of India and Others) held that for making a right choice by electors in regard to the candidate at the election, it was essential that the past of the candidate should not be kept in the dark as it was not in the interest of the democracy and well-being of the country, and directed the Election Commission to secure to voters the following information pertaining to each of the candidates contesting elections to Parliament and to the State Legislatures 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 dependent 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.;  

3.      And whereas, the Union of India filed an appeal before the Hon’ble Supreme Court of

India [Civil Appeal No.7178 of 2001 – Union of India v Association for Democratic Reforms and Another] contending that the High Court ought to have directed the writ petitioners to approach the Parliament for appropriate amendments to the law instead of directing the Election Commission of India to implement the same;  

4.      And whereas, the Hon’ble Supreme Court of India has, by its order dated 2nd May,

2002, held as follows: -  

“(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, art 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 (AIR 1986 SC 111), the court construed the expressions    ‘superintendence, direction and control’ in art 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 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 (sic) (elector) according to his thinking

and opinion. As stated earlier, in Common Cause case [(1996) 2 SCC 752], 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 election, voter can decide whether he  could be re-elected even in case where he has collected tons of money.  

(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 art 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 art 32 read with arts 141 and 142 of the Constitution to issue  necessary directions to the executive to subserve public interest.

(7)    Under our Constitution, art 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 man-citizen’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.”;  

5.      And whereas, the Hon’ble Supreme Court, by its aforesaid order dated 2nd May,

2002, has directed as follows: -    

“The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under art 324 of the Constitution of India from each candidate seeking 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 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.”;  

6.      And whereas, the Hon’ble Supreme Court, in its aforesaid order dated 2nd May,

2002, further observed that ‘the Election Commission has from time to time issued instructions in order to meet with the situation where the field is unoccupied by the legislation’ and has further directed that ‘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’;   

7.      And whereas, the Election Commission, on detailed consideration of the matter, was

of the view that the most efficacious manner of implementing the above judgment and order of the Hon’ble Supreme Court would be by amending Forms 2A to 2E appended to the Conduct of Elections Rules 1961 (forms of nomination papers to be filed at elections to Parliament and State Legislatures), and accordingly approached the Government of India in the Ministry of Law, Justice and Company Affairs by the Commission’s letter dated 14th May, 2002 for suitably amending the said forms;  

8.      And whereas, the Commission also furnished to the Ministry of Law, Justice and

Company Affairs the drafts of the forms of nomination papers (Forms 2A to 2E) as sought to be revised;  

9.      And whereas, the Government of India in the Ministry of Law, Justice and Company

Affairs has, by their letter dated 19th June, 2002, informed the Commission that the matter of amending the forms of nomination papers is receiving consideration of the Government and that the Government has convened a meeting of the political parties for consideration of the matter on 8th July, 2002;    

10.  And whereas, the Government of India has, by its aforesaid letter dated 19th June,

2002, requested the Commission to approach the Hon’ble Supreme Court to give further two months time beyond 1st July, 2002 for the implementation of the Hon’ble Court’s order dated 2nd May, 2002;  

11. And whereas, the Commission has, by its letter dated 21st June, 2002, informed the Government of India that it is for the Union of India to request the Hon’ble Supreme Court for time, if it considers this necessary; 

 12.  And whereas, the Hon’ble Supreme Court has not so far granted any extension of

time for the implementation of its aforesaid order dated 2nd May, 2002;  

13.  And whereas, in the absence any direction to the contrary by the Hon’ble Supreme

Court or extension of time by it, the Commission feels duty bound to implement the above referred order dated 2nd May 2002 of the Hon’ble Supreme Court within two months from the date of pronouncement of that order, that is to say, by 1st July 2002, as the said order has the force of law within the meaning of Article 141 of the Constitution and is enforceable throughout the territory of India under Article 142 of the Constitution;  

14.  Now, therefore, the Election Commission, in pursuance of the above referred order

dated 2nd May, 2002 of the Hon’ble Supreme Court and in exercise of the powers, conferred on it by Article 324 of the Constitution, of superintendence, direction and control, inter alia, of conduct of elections to Parliament and State Legislatures, hereby

direct as follows: -  

(1)              Every candidate at the time of filing his nomination paper for any election to

the Council of States, House of the  People, Legislative Assembly of a State or the Legislative Council of a State having such a council, shall furnish full and complete information in regard to all the five matters, specified by the Hon’ble Supreme Court and quoted  in para 5 above, in an affidavit, the format whereof is annexed hereto as Annexure-1 to this order.    

(2)              The said affidavit by each candidate shall be duly sworn before a

Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State concerned.

(3)              Non-furnishing of the affidavit by any candidate shall be considered to be

violation of the order of the Hon’ble Supreme Court and the nomination of the candidate concerned shall be liable to  rejection by the returning officer at the time of scrutiny of nominations for such non-furnishing  of the affidavit.  

(4)              Furnishing of any wrong or incomplete information or suppression of any

material information by any candidate in  or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the returning officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong     information to a public servant or suppression of material facts before him:    

Provided that only such information shall be considered to be wrong or incomplete or amounting to suppression of  material information as is capable of easy verification by the returning officer by reference to documentary proof

adduced before him in the summary inquiry conducted by him at the time of scrutiny of nominations under section 36 (2) of the Representation of the People Act 1951, and only the information so verified shall be taken into  account by him for further consideration of the question whether the same is a defect of substantial character.  

(5)              The information so furnished by each candidate in the aforesaid affidavit shall be  disseminated by the respective returning officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available freely and liberally to all other candidates and the representatives of the print and electronic media.    

(6)              If any rival candidate furnishes information to the contrary, by means of a

duly sworn affidavit, then such affidavit  of the rival candidate shall also be  disseminated along with the affidavit of the candidate concerned in the manner

directed above.    

15.  For the removal of doubt, it is hereby clarified that, apart from the affidavit in

Annexure-1 hereto referred to in para 14 (1) above, the candidate shall not be required to file any additional affidavit which was earlier required to be filed in pursuance of the Commission’s order No.509/disqln./97-JS-I dated 28th August, 1997, as the information furnished in the earlier affidavit will now form part of the information required to be furnished in the present affidavit (Annexure-1).  

16.  In so far as elections to the Legislative Assembly and Legislative Council of the State

of Jammu and Kashmir are concerned, the directions of the Election Commission contained in the preceding para 14 shall be deemed to have been issued under the provisions of section 138 of the Constitution of Jammu and Kashmir which are akin to Article 324 (1) of the Constitution of India and vest the superintendence, direction and control of the conduct of all elections to either House of the Legislature of that State in the Election Commission.                                                                                      By order, 

                                                                            A.K.MAJUMDAR 

                                                                                   Secretary, 

                                                                     Election Commission of India  

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