Report No. 244
(i) Legislative history on the requirement of disclosures
The 170th Law Commission Report on Electoral Reforms, 1999 was the first to suggest that a new Section 4A be added to the Representation of the People Act, 1951 (RPA), mandating that a person shall be ineligible to contest elections unless he files an affidavit declaring assets possessed by him, his spouse, and dependent relatives. Also required was a declaration whether charges had been framed against him in respect of any of certain specified offences by a criminal court.84
84. Law Commission of India, 'One Hundred Seventieth Report on Reform of the Electoral Laws', (1999).
In 2002, the Association of Democratic Reforms petitioned the Court to have the above recommendation implemented, among others. Union of India v. Association of Democratic Reforms, (2002) 5 SCC 294. The Supreme Court directed the Election Commission to require details on assets and liabilities, pending and convicted criminal cases and educational qualifications to be filed on affidavit along with the nomination papers of all candidates.
Pursuant to this judgment, the Election Commission issued directives to the effect that failure to file an affidavit containing the above details would result in the nomination paper being deemed incomplete within the meaning of Section 33(1) of the RPA, apart from inviting penal consequences under the Indian Penal Code. The Returning Officer would conduct a summary inquiry at the time of scrutiny of nomination papers, and only defects of a substantial character shall be considered grounds for rejection.86
86. Election Commission of India, Order dated 28th June, 2002, No. 3/ER/2002/JS-II/Vol-III, <http://eci.nic.in/archive/press/current/PN_28062002.htm> accessed January 29th, 2014.
Later that same year, the RPA was amended to add Sections 33A and 33B. Section 33A said that information shall be filed along with nomination papers about any charges framed by a court against the candidate for an offence punishable by more than two years imprisonment, and any conviction which did not disqualify him, but resulted in imprisonment of 1 year or more.
Section 33B said that notwithstanding any judgment, decree or order by the Election Commission, no candidate shall be liable to disclose any information other than that mandated by the RPA or rules made thereunder. Therefore, directions of the Supreme Court regarding further disclosure of assets and educational qualifications stood reversed by this amendment.
Section 33B was challenged in PUCL v. Union of India, (2003) 4 SCC 399. The Supreme Court held that Section 33B nullified the directives issued by the Election Commission pursuant to the judgment in Association of Democratic Reforms. The plain effect of the embargo contained in Section 33B is to nullify substantially the directives issued by the Election Commission pursuant to the judgment of this Court.
The Judges gave three separate opinions in this case. The effect of the judgment was to render Section 33B unconstitutional, as it imposed a blanket ban on the dissemination of information, irrespective of the need of the hour. The legislature could deviate from the directives of the court, but not substantially disregard them, as it had done with the introduction of Section 33B. Further, the Association of Democratic Reforms had recognized and enforced a fundamental right of the act of voting as freedom of expression, and Section 33B could not take away the same.