Anil Dev Singh ( 1 ) INFORMATION is a many splendoured virtue. It is the key to power, fortune, science and technology and even steadfast democracy. Its potential when channelised is capable of banishing ignorance, poverty, hunger and want. It plays significant role in every walk and sphere of life, including the field of politics and democracy. It can transform democratic institutions and the governance of the country. ( 2 ) IN this petition the petitioner inter alia seeks an informed right of voting for the voters of this country based on information and knowledge about candidates seeking election to Parliament and State Legislatures. The prayer in this regard of the petitioner is as follows: - "iv) Issue an appropriate writ, order or direction directing Respondent No. 2 to put together the information on criminality of all the candidates for an election and make this information available to public, and print and electronic media for wide dissemination. " ( 3 ) BESIDES, the petitioner seeks a direction to the first respondent to amend the provisions of the Representation of the People Act, 1951, in consonance with the recommendations of the Law Commission contained in its 170th Report. At this stage it will be convenient to set out the recommendations of the Law Commission:- "xxxxxxx. 6. 3. 3. In order to achieve the aforesaid objectives, it is essential to insert a new Section 4-A after the existing Section 4 of the Representation of the People Act, 1951, as follows: - "4-A. Qualification for membership of the House of the People, the Council of States, Legislature Assembly of a State or Legislative Council A person shall not be qualified to file his nomination for contesting any election for a seat in the House of the People, the Council of States, Legislative Assembly or Legislative Council of a State unless he or she files - (a) a decoration of all his assets (movable/immovable) possessed by him/her, his/her spouse and dependent relations, duly supported by an affidavit, and (b) a declaration as to whether any charge in respect of any offence referred to in Section 8b has been framed against him by any Criminal Court. 6. 3. 3. 6. 3. 3. 1 The consequential changes will be required to be carried out in Forms 2a to 2e prescribed by the Conduct of Election Rules, 1996 to bring these in conformity with the amendments recommended in the Representation of the People Act, 1951. Accordingly, it is recommended that following clauses be inserted as clauses (d) and (e) in forms 2a to 2e. consequently, the existing clause (d) therein shall be designated as clause (f): (e) that the statement of assets enclosed to this nomination paper represents the true and correct statement of all the assets, movable and immovable, held/owned by me, my spouse and dependent relations. An affidavit affirming the correctness of the said statement is also appended to this nomination paper. (f) that no criminal court has framed a charge against me in respect of any of the offences mentioned in Section 8-B of the Act and that no trial in respect of charges of the said offences is pending, or that a charge has been framed against me by the Court of ------- in the case No.--------- on ------- (date) in respect of offence (s) punishable under Sections ------- mentioned in Section 8-B and trial is pending against me, or that though charge was framed against me by the Court of in the case No.------- on -------- (date) in respect of offence (s) punishable under Sections ------- mentioned in Section 8-B, I have since been acquitted of the said charge by order (date) (copy enclosed ). Moreover, the words "that I am contesting this election as an independent candidate" in forms 2a and 2b should be deleted. xx xx xx ( 4 ) THE petition also seeks a direction to make it mandatory for every candidate to provide the relevant information by amending Form 2a to 2e prescribed by Conduct of Election Rules, 1961, relating to filing of nominations, on the lines of the amendments suggested by the Law Commission and making it penal in the event any of the said disclosures are found to be inaccurate or incorrect and also making the said candidate, if elected, liable to be disqualified. Besides, as already noted, the petition claims a direction to respondent No. 2 to compile information on "criminality of candidates" and make the information available to public by printing and by dissemination through electronic media. Besides, as already noted, the petition claims a direction to respondent No. 2 to compile information on "criminality of candidates" and make the information available to public by printing and by dissemination through electronic media. For seeking these reliefs the petitioner highlights the fad that over the years there has been criminalisation of politics. To illustrate the point it lists forty-six candidates who had been nominated by various political parties to contest elections for the Thirteenth Lok Sabha even though they were said to have criminal background. It also cites the example of the recent elections to emphasise that there has been spurt in election related violence. ( 5 ) THE Election Commission of India has filed an affidavit in response to the writ petition. It is stated that the Election Commission of India is very keen that certain amendments be carried out in the electoral laws. It had suggested even before the 170th Report of the Law Commission was submitted to the Government of India in May 1999, to disqualify persons from standing in the elections charged with serious offences. According to the Election Commission it has been raising the issue for over two years. It is asserted that the Election Commission pointed out to the Government of India serious anomalies in Section 8 of the Representation of the People Act, 1951, which deals with disqualification of candidates on the ground of conviction. The affidavit also mentions the fact that a communication had been received from the Government of India, Ministry of Home Affairs, dated 27/05/1998 for comments of the Election Commission of India with regard to the question of requiring the candidates to declare their assets and those of their spouses, sons, daughters, brothers, sisters etc. In response, the Commission had conveyed its views on 25/06/1998. ( 6 ) RESPONDENT No. 1, the Union of India, has filed a short affidavit. It is stated that the entire approach of the Government in the matter of electoral reforms has all along been consensual in nature. Since the amendments suggested by the Law Commission affect political parties, the Government is in favour of a thorough debate in public. The Government of India wants to proceed on the basis of unanimity of views on the subject. Since the amendments suggested by the Law Commission affect political parties, the Government is in favour of a thorough debate in public. The Government of India wants to proceed on the basis of unanimity of views on the subject. It is further stated that the Union of India is not in a position to give any categorical assurance with regard to carrying into effect of the recommendations of the Law Commission. It will be appropriate at this stage to set out the averments of the Union of India in this regard:- "4. In the light of the submissions made in the preceding paragraphs it is stated that the Union of India is not in a position, at this stage, to give a categorical assurance that the Forms 2a to 2e prescribed in the Conduct of Elections Rules, 1961, will be amended as. suggested by the Law Commission. It is also not possible to give a definite lime frame by which a decision in the matter will be taken. The Government on its part can only assure the Hon ble Court that the matter will receive its serious consideration and depending upon the outcome of the public debate and the consensus amongst the political parties, the Government will bring a comprehensive Electoral Reforms Bill which will also include provisions for putting a check on criminalisation of politics and misuse of money and muscle power in elections. " ( 7 ) AS is evident, the Government has not been able to table an Electoral Reforms Bill in the Parliament for lack of unanimity amongst the political parties. The Government has been searching for consensus which has alluded it so far. It appears that without the acquiescence of the parties it is impossible for the Government to do the plainest right and to undo the plainest wro ng. The existing electoral law does not 6 measure up to the realities of the situation, but we can not 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 case may be, since we have no such power or power to legislate. 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. We cannot trench upon that field even if reforms in the election law may be the felt necessity of time. The matter, however, does not end here. ( 8 ) THE question which still survives for determination is whether or not an elector, a citizen of this country, has a fundamental right to receive information regarding candidates criminal activities and to know facts about them which have a bearing on their suitability and competence for being elected as Parliamentarians or legislators, as the case may be, so that the elector casts an informed vote. In other words should a voter as a the matter of right be allowed to peep into the past of the candidate for making an estimate for himself as to whether the person, who is standing in the election, has a background making him worthy of his vote. In the present scenario the question has great relevance and needs to be determined. ( 9 ) WE first propose to focus on the present scenario. No less an authority than the Election Commission of India, which has the first hand experience of elections of about five decades has expressed grave concern over the criminalisation of politics. Its official publication "electoral Reforms (Views and Proposals)" alludes to the much discussed concerns regarding the anti-social and criminal elements making inroads into the electoral and political fields and the need to amend the Representation of the People Act, 1951, The following excerpts from the publication turn the spot light towards the growing nexus between the political parties and anti social elements: - " (I) CRIMINALISATION OF POLITICS. " ( 10 ) THE whole country is now expressing serious concern over the anti-social and criminal elements entering the electoral arena. 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 deal of concern about the increasing criminalisation of politics. " ( 10 ) THE whole country is now expressing serious concern over the anti-social and criminal elements entering the electoral arena. 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 deal of concern about the increasing criminalisation of politics. It is widely believed that there is a growing nexus between the political parties and anti-social elements, which is leading to criminalisation of politics, where 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. ( 11 ) IT is difficult to define as to who a criminal is. Under the jurisprudence, a person is presumed to be innocent unless proved otherwise and convicted by a Court of law. Thus, in strict legal parlance, a criminal may be one who has been convicted of crime by a Court of law. But a common man perceives otherwise. In his eyes, a person who has been charged with certain types of offences and is under trial is also a criminal. ( 12 ) THE Common man considers it criminalisation of politics if he sees a history-sheeter or a notorious bad character, involved though perhaps not finally convicted in various crimes of a heinous nature like murder, dacoity or rape, contesting elections and getting elected. There is clamour that such history-sheeters and bad characters should be debarred from contesting and holding any elective office. ( 13 ) THE Election Commission has also been devoting serious thought to this vital issue. In August, 1997, it issued an order under Article 324 of the Constitution, whereby all candidates for elections to Parliament and State Legislatures are now required to file affidavits about their convictions in cases covered by Section 8 of the Representation of the People Act, 1951, which disqualifies persons convicted of those specified offences. The Commission also clarified that the conviction by the Trial Court itself is sufficient to attract disqualification and even those who are released on bail during the pendency of their appeals against their convictions are disqualified for contesting elections. It is a small step forward in combating the situation, but has been greatly welcomed by the common people. The Commission also clarified that the conviction by the Trial Court itself is sufficient to attract disqualification and even those who are released on bail during the pendency of their appeals against their convictions are disqualified for contesting elections. It is a small step forward in combating the situation, but has been greatly welcomed by the common people. ( 14 ) THE Commission conveyed its serious concern and anxiety in the matter to the Government at the highest level, through a letter written by the Chief Election Commissioner to the then Prime Minister in September, 1997. In that letter, the Commission has also pointed out grave incongruities in the existing provisions of sub-sections (1), (2) and (3) of the said Section 8 of the Representation of the People Act, 1951, illustrating the case of a rapist, convicted and sentenced to ten years imprisonment, being disqualified only for six years under sub-section (1) and being free to contest elections, even while in prison serving the last four years of his sentence. The Commission had suggested that the law may be simplified by amending said Section 8 to provide that whoever is convicted of any offence by a Court of law and sentenced to imprisonment for six months or more should be debarred from contesting elections, for a period totalling the sentence imposed plus an additional six years. A copy of the said letter of Chief Election Commissioner is annexed hereto as Annexure -I. ( 15 ) THE Commission reiterates its above suggestion. ( 16 ) THE Commission is also prepared to suggest that any person who is accused of any offence punishable with imprisonment for five years or more should be disqualified, even when his trial is pending, provided that the competent court of law has taken cognisance of the offence and framed the charges against him. . . . . . . . . . . . In the Commission s considered opinion, a person who is facing trial in a serious offence, if kept out of the electoral fray till he is exonerated of the charge, should not have a legitimate grievance, as such restriction on his right to contest elections would be a reasonable restriction in the greater public interest and for bringing sanctity to the august Houses which are the supreme law making bodies of the country. " ( 17 ) FROM the above it is evident that the fact of criminalisation of politics stands recognised even by the Parliament in its resolution passed in a special session in August 1997 whereby it showed great concern regarding increased criminalisation of politics. It is also manifest from the aforesaid publication that criminals are no longer contend with making others win elections hut arc now contesting the elections themselves, and the irony of the situation is that those who live by breaking the law are turning into law makers, and some of them had even found ministerial berths. It is a dangerous development which does not augur well for the country and the Parliamentary democracy. ( 18 ) EVEN the Law Commission in its 170th report noted the strong opinion expressed by several participants at the national seminar about the politicisation of crime and the use of criminals at the time of elections. It also noted the increasing electoral malpractices with every passing election. In view of the grave situation the Law Commission suggested amendment in the Representation of the People Act, 1951. At this stage it will be advantageous to quote from the Report of the Law Commission:- "xx xx xx 5. 2. Views of different persons considered. -. . . . . Shri Dilip Padgaonkar, Editor, Times of India, in his keynote speech at the National Seminar referred to Dr. Radhakrishnan s concern about corruption expressed in 1947 and to Vohra Committee Report. According to him, a negative process was in progress in India, namely, criminalisation of politics and politicisation of crime. He observed that Indian society was basically tolerant of human failings and that it respected acquisition of wealth by whatever means. He referred also to facts and figures concerning the increasing criminalisation and the increasing number of crimes committed at every succeeding election. He referred to the increasing electoral malpractices with every passing election. He pointed out that while in 1957, repoll was ordered only in 65 booths, in 1989 it was ordered in 1670 booths. He pointed out that in 1991, in Bihar alone repoll was ordered in 1046 booths and in 2173 booths in 1996. He suggested strong measures to arrest the trend towards criminalisation of politics and elections. Shri V. R. Reddy, Senior Advocate and former Additional Solicitor General extended qualified support to the proposals of the Law Commission in this behalf. He pointed out that in 1991, in Bihar alone repoll was ordered in 1046 booths and in 2173 booths in 1996. He suggested strong measures to arrest the trend towards criminalisation of politics and elections. Shri V. R. Reddy, Senior Advocate and former Additional Solicitor General extended qualified support to the proposals of the Law Commission in this behalf. According to him, this amendment did not really provide the solution inasmuch as the police was not willing to take action against criminals because of the nexus between politicians and criminals. 5. 2. 1. Strong opinions were expressed by several participants at the National Seminar about the politicians taking the help of criminals not only at the time of elections but even at other times, as well as to the direct entry of criminals themselves into politics. One of the suggestions was that the antecedents and history as also the assets of each candidate at an election should be published in newspapers before their nomination was accepted. "