Access to Public Information, Defamation / Reputation, Political Expression
Jereissati v. Mendonça de Barros
Closed Expands Expression
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The Supreme Court of India upheld a High Court order mandating the Election Commission to obtain and disclose to the public background information relating to candidates running for office, including information on their assets, criminal records, and educational background. The Supreme Court ruled that the right to know about public officials is derived from the constitutional right to freedom of expression.
This case analysis was contributed by Right2Info.org
The Association for Democratic Reforms filed a petition with the High Court of Delhi to compel implementation of certain recommendations regarding how to make the electoral process in India more fair, transparent and equitable. As requested by the Government of India, these recommendations had been produced by the Law Commission and provided that the Election Commission should require all candidates to disclose personal background information to the public, including criminal history, educational qualifications, personal financial details and other information necessary for judging a candidate’s capacity and capability.
Ruling that a candidate’s background should not be kept in the dark as it is not in the interest of democracy, the High Court of Delhi ordered the Election Commission to obtain such information for the benefit of the voters. The Union of India challenged the decision through an appeal to the Supreme Court of India, arguing that the Election Commission and the High Court did not have such powers and that voters did not have a right to such information.
The Court issued two main rulings: (1) When the legislature is silent on a particular subject and an entity (in this case, the Election Commission) has been granted implementation authority with respect to such subject, the Court assumes that the entity has the power to issue directions or orders to fill such a void until a suitable law on the subject is enacted; and (2) Citizens have a right to know about public functionaries, which is derived from the concept of freedom of speech and expression and which includes the right to know about the backgrounds of candidates for public office.
With regard to the first ruling, the Court confirmed that Article 324 “operates in areas unoccupied by legislation” and that “[t]he silence of a statute has no exclusionary effect except where it flows from necessary implication”. [p. 10-11] In other words, the Court’s power to issue directions pursuant to Article 324 is plenary. [p. 19] By extension, the Election Commission, as ordered by the Court, can issue suitable directions to maintain the purity and transparency of the “entire process of election”. [pp. 13, 19]
With regard to the second ruling, the Court characterized the right to know as a right derived from the right to freedom of speech and expression. The public has a right to know about candidates contesting elections because such rights include the right to hold opinions and acquire information so as to be sufficiently informed in forming and disseminating those opinions throughout the election process. The Court advanced this point by observing that a successful democracy strives toward an “aware citizenry” and misinformation or non-information of any kind will create an “uniformed citizenry which makes democracy a farce”. [p. 16]
With the above decided, the Court directed the Election Commission to issue the necessary orders to obtain from each candidate for election to Parliament or a State Legislature information on the following aspects of their background: any criminal charges and convictions in the candidate’s past, any pending cases in which the candidate is an accused, all assets of a candidate including those of his or her spouse, all liabilities of a candidate, and all educational qualifications of a candidate.
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In December 2002, in response to the judgment, Parliament amended Representation of the People Act. The Amended Act required a candidate for office to provide information “as to whether he is accused [or convicted] of any offence punishable with imprisonment for two years or more in a pending case” (Section 33A). 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 Supreme Court examined the constitutional validity of Section 33 in the case Union for Civil Liberties and Another (PUCL) v. Union of India and Another.
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