Disclosure of Politicians’ Tax Returns and Freedom of Expression: drawing on the Indian experience – Hugh Tomlinson QC

The disclosure by the London Mayoral candidates of their tax returns has led to a wider debate about tax disclosure by politicians.  The Chancellor, George Osborne, has said he would be “very happy” for the government to consider publishing the personal tax returns of senior cabinet ministers.  The Prime Minister has said he is “very relaxed” about publishing his tax returns and believes the “time is coming” for politicians to be more open about their personal finances.

There is an interesting “freedom of expression” dimension to this debate.  The Courts in India have used the constitutional right to freedom of expression – including the right to receive information – to place candidates for election under strict “disclosure” requirements – covering their own assets and liabilities and those of their families.

The Indian case law goes back over a decade.  In August 1999 the Indian NGO the Association for Democratic Reforms filed a public interest claim in the Delhi High Court seeking directions to the Election Commission of India for greater disclosure from candidates. They argued that all candidates must be required declare information on any criminal convictions or cases pending against them, their assets, and their educational status.  The High Court granted the relief sought and the Government’s appeal to the Supreme Court of India was unsuccessful.

In its judgment in that case, Union of India v. Association for Democratic Reforms (2 May, 2002, Civil Appeal No.7178 of 2001 [pdf]) the Supreme Court  relied on the “citizens’ right to know-  which is derived from the concept of ‘freedom of speech and expression’”. It held that

“The people of the country have a right to know every public act, everything that is done in a public way by the public functionaries. MPs or MLAs [members of legislative assemblies] are undoubtedly public functionaries. Public education is essential for functioning of the process of popular government and to assist the discovery of truth and strengthening the capacity of an individual in participating in decision making process. The decision making process of a voter would include his right to know about public functionaries who are required to be elected by him”.

After considering case law on the right to freedom of expression under Article 19 of the Indian Constitution, the Court concluded

“In our view, democracy cannot survive without free and fair election without free and fairly informed voters. Votes cast by uniformed voters in favour of X or Y candidate would be meaningless … one-sided information, disinformation, misinformation and non- information all equally create an uninformed citizenry which makes democracy a farce. Therefore casting of a vote by misinformed and non- informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions … there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy”.

The Court’s conclusions included the following

“To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted”.

As a result, the Election Commission was directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:-

(1) Whether the candidate is convicted/acquitted/discharged of any criminal offences in the past if any, whether he is punished with imprisonment or fine?

(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof?

(3) The assets (immovable, movable, bank balance etc.) of a candidate and of his/her spouse and that of dependants.

(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.

(5) The educational qualifications of the candidate.”

The Election Commission subsequently made an order, including detailed provisions as to the form of affidavit to be provided by candidates for election in India.

There were subsequent unsuccessful attempts to reverse part of the effect of the decision in Association for Democratic Reforms by statute (see the judgment in People’s Union for Civil Liberties v Union of India 13 March 2003 [pdf]).  However, the obligation to disclose information – including information about assets – is now firmly established in election law in India.  The Election Commission maintains an Archive of Affidavits of electoral candidates – for public inspection.

The case law of the Courts of India on fundamental rights must be approached with some caution. The legal framework is very different from our own – an activist judiciary has expanded a number of fundamental rights in the Constitution to bring about wide ranging reforms in areas from environmental policy to prison conditions.  Nevertheless, the language and approach of the Indian Supreme Court is very familiar – reliance was placed not just on Article 19 of the Constitution but also Article 19 of the International Covenant on Civil and Political Rights – to which the United Kingdom is a party.  The English courts and the Court of Human Rights have begun to recognise a right to “freedom of information” deriving from Article 10 of the European Convention (see, most recently, the decision in Gillberg v Sweden, discussed on the Panopticon Blog).

The possibility of using Article 10 to support an argument in favour of financial disclosure by politicians is an intriguing one.  In India the disclosure covers assets of and liabilities of politicians, their spouses and their dependents.  Personal financial privacy has to give way to the public right to know about the background of those putting themselves up for elections.  The consequences of such a provision for English politics would be very far reaching.  Campaigners for political transparency can draw substantial support from the way in which the Indian courts have used the right to freedom of expression to require the full provision of information to the electorate.