The Petitioner i.e. PUCL, a voluntary organization, filed a public interest petition challenging the constitutional validity of Section 5(2) of the Act, which allowed the Central Government or the State Government, during public emergency or for public safety, to intercept messages if satisfied that it is necessary or expedient so to do on various grounds including the sovereignty and integrity of India, friendly relations with foreign states and public order. The Petitioner challenged this section claiming it violated individuals’ right to privacy in the wake of a report published by the Central Bureau of Investigations on “Tapping of Politicians Phones”.

The Supreme Court of India reiterated that Article 19(1)(a) includes the right of voters to have basic information about electoral candidates. In a democracy, the will of the people is expressed in periodic elections. Availability of basic information about the candidates enables voters to make an informed decision and also paves the way for public debates on merits and demerits of candidates. This in turn goes a long way in promoting freedom of speech and expression, and also ensures the integrity of the electoral process in a democracy. Further, freedom of expression is not limited to oral or written expression, but also includes voting as a form of expression. Even though the right to vote itself may not be a fundamental right, the expression of opinion through the final act of casting a vote is part of the fundamental right of freedom of speech and expression under Article 19(1)(a).

A liberal approach to the disclosure of information about an electoral candidate is desirable. However, compelling a person to disclose personal information affects the person’s privacy. There is a need to draw a line between the voters’ right and candidates’ privacy. The legislature must apply its mind and lay down the criteria on which information must be disclosed. In the absence of such a law, in the case of Union of India v. Association for Democratic Reforms, (2002) 3 S.C.R. 294, the Court gave certain broad indicators for disclosure in order to give effect to the right under Article 19(1)(a). The Election Commission directives based on this judgment were meant to operate only until the time legislature enacted an appropriate law. While these points of disclosure serve as broad indicators for enacting a law, the legislature must give them due weight.

The Court concluded that Section 33B of the Representation of People Act, 1951, was unconstitutional. Firstly, it froze and stagnated the right to information by nullifying the effect of any order or judgment requiring disclosure of information. Instead, the right to information is a dynamic right that should be allowed to grow. Secondly, the Act inadequately required disclosure of information with respect to criminal background of the candidates, and assets and liabilities of candidates and their spouse and children. However, the Court held that by not providing for disclosure of educational qualifications, it cannot be said that Article 19(1)(a) has been violated.

The Court directed the Election Commission to issue revised instructions in accordance with the law laid down in this judgment.