2nd July, 2007

The Chief Election Commissioner,
Nirvachan Sadan,
Ashok Road,
New Delhi.

Sir,

I write to you in relation to the ongoing election of the President of India.

The election for the President of India is governed by 'The Presidential and Vice-Presidential Act, 1952'. The Act requires the Election Commission to appoint a Returning Officer through whom it shall conduct the elections. Even though the powers and procedures for the election are mentioned in the Act, the powers of the Commission in relation to areas not occupied by the legislation are contained in the Article 324 of the Constitution.

The Supreme Court of India in its judgment dated May 2, 2002 in the case of 'Union of India V/s Association for Democratic Reforms & Another 2002 (5) SCC 294' has categorically held that the Election Commission can issue directions in relation to the healthy conduct of elections and in order to educate the electorate about the past antecedents of the candidates. The Supreme Court has further held that the voters have a right to know about the background of each candidate. The right of knowledge of the electorate stems from the Constitutional provisions with regard to Freedom of Expression contained in Article 19 (1)(a) of the Constitution.

The information which the Election Commission has been directed by the Supreme Court to call for is in relation to the past convictions of the candidate, pending criminal cases, assets of candidate (his/her spouse), liabilities of a candidate including dues of public financials institutions or Government. The Election Commission can also call for information in relation to the educational qualification of each candidate. This view of the Supreme Court has been reaffirmed by it in a later judgment of the Peoples Union for Civil Liberties & Another V/s Union of India 2003 (4) SCC 399.

It is thus clear that the electorate, in all elections, has a right to know about the background of each candidate. This is pursuant to the Constitutional right of each voter. The Election Commission is empowered to issue necessary directions requiring the candidate to make such disclosures at or after the time of nomination.

The Election Commission has already issued necessary directions with regard to such disclosures in relation to the election of Members of Parliament and Members of Legislative Assemblies. Even in indirect elections to the Rajya Sabha and the Legislative Councils these directions have been made applicable.

The judgment of the Supreme Court was given in the context of elections to the legislative bodies. It did not cover the election to the post of President specifically. However, the power of the Election Commission under Article 324 applies to all elections including that of the President. Similarly, the right to knowledge/information of the electorate that stems out of Article 19 (1)(a) applies uniformly to all electors including those who elect the President of India.

The higher the post, the highest should be the level of scrutiny. Presently, only an M.P. can become a Prime Minister or a Minister at the Centre. As M.P. he has to file the requisite declaration before getting elected. Similarly only a member of the state legislature can become Chief Minister or Minister in the State who also has to file a similar declaration before election. It is, therefore, essential that the background of each candidate in relation to pending criminal cases, dues of the Government bodies and financial institutions are disclosed. The Election Commission would be failing in its duties, if it did not carry the judicial pronouncement to its logical conclusion and make effective the right to information and knowledge available to each voter. The exercise of power under Article 324 is coupled with a Constitutional duty. It is incumbent upon the Election Commission to make exercise of voting right effective.

Even though the electoral process for the election for the President has already commenced, it is incumbent for the Election Commission even now to require all candidates to make necessary disclosures as are expected from the candidates seeking to enter legislative bodies. Between now and the voting for the President of India there are still 19 days left. If the candidates are required to make such disclosures to the Returning Officer and these disclosures are made public, it will make the exercise of voting even more effective.

Yours sincerely,

(L. K. ADVANI)