LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. SHUKLA versus UNION OF INDIA & OTHERS WRIT PETITION (C) NO. 784 OF 2015 FEBRUARY 16, 2018 on 16 February 2018

SUPREME COURT REPORTS

[2018] 2 S.C.R.

ALOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N.SHUKLA

v.

UNION OF INDIA & OTHERS

BWRIT PETITION (C) No. 784 OF 2015FEBRUARY 16, 2018

[J. CHELAMESWAR AND S. ABDUL NAZEER, JJ.]

The Representation of the People Act, 1951 – Chapter II, PartIII – ss.2(g), 7(b), 8, 8A, 9, 9A, 10, 10A, 33A, 33B, 77, 78, 100, 123Cand 169 – Disqualification of Legislators on ground of undueaccretion of assets – Right of voters to know vital information aboutcandidates – Writ petition filed by registered society stating that theassets of some members of the Parliament and State legislaturesgrew disproportionately to their known sources of income – PetitionerDsought various reliefs – Held: Parliament has prescribed variousdisqualifications in Chapter III of Part II of the 1951 Act – However,undue accumulation of wealth (assets of the Legislators) is not oneof the grounds specified either under the 1951 Act or u/Arts.102and 191 of the Constitution which stipulate some of thedisqualifications – Financial background, in all its aspects, of theEcandidates is relevant and critical information – Voters have afundamental right to know the relevant information about theCandidates – Prayer No.1(1) of the petitioner allowed – Thus, r.4Aof the Conduct of Election Rules, 1961 and Form 26 appended tothe said Rules to be suitably amended, requiring Candidates andFtheir spouses and dependants to declare their sources of income –Further, prayer no. 1(3)(ii) seeking direction for establishment of apermanent mechanism to inquire/ investigate into thedisproportionate increase in the assets of Legislators during theirtenure as Legislators, prayer no. 2 seeking declaration that non-disclosure of assets and sources of income would amount to ‘undueGinfluence’- a corrupt practice u/s.123(2) of the 1951 Act, prayerno. 4 seeking information regarding the contracts, if any with theappropriate government either by the candidate or his/her spouseand dependants and prayer no.5 seeking Form 26 to be amendedto provide certain further information, also allowed – However,Hprayer nos. 1(2) and 3 insofar as they seek directions in the nature

LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N.SHUKLA v. UNION OF INDIA

of mandamus to consider amendment of the RP Act of 1951 andprayer no. 1(3)(i) seeking selective inquiry/investigation into the“disproportionate increase in the assets” of the named Legislators,not allowed – Constitution of India – Arts.19(1)(a), 32, 58, 66, 84,102(1)(e), 191(1)(e) 173, 326, 329 – VII[th] Schedule, List I, Entry72 – Conduct of Election Rules, 1961 – r 4A, Form 26 – Preventionof Corruption Act, 1988 – ss.13(1)(e), 13(2) – Election Laws –Electoral Reforms.

The Representation of the People Act, 1951 – s. 169 – Rulemaking power under, of Central Government – Discussed –Administrative Law – Subordinate Legislation.

Writs – When cannot be issued – Writ petition filed inter aliaseeking direction to respondents for amendment of provisions ofthe 1951 Act – Held: No writ could be issued to compel any legislativebody to make a law – Hence, prayers seeking directions torespondents for amendment of the provisions of the 1951 Act cannotbe granted – The Representation of the People Act, 1951.

Allowing the writ petition, the Court

HELD: 1.1 The Representation of the People Act, 1951contains various provisions in Chapter III of Part II stipulatingthe disqualifications for membership of Parliament and StateLegislatures. They are Sections 8, 8A, 9, 9A, 10 and 10A. ChapterIV of Part II contains a provision stipulating a disqualification forvoting, obviously, referable to the authority of Parliament underArticle 326. The expression ‘disqualified’ is defined underSection 7(b) of the RP Act of 1951. [Paras 11, 12] [908-F-G]

Conclusion

1.2 Section 33A mandates that a candidate is also requiredto deliver to the returning officer at the time of the filing ofnomination an affidavit sworn by the candidate in the prescribedform. As a corollary to the said mandate, Rule 4A was inserted inthe Conduct of Election Rules, 1961 (hereafter referred to asthe RULES) stipulating that an affidavit in the Form No.26 isrequired to be filed. The form, as originally prescribed underRule 4A w.e.f. 3.9.2002, stood substituted w.e.f. 1.8.2012. Theform, inter alia, requires information regarding the PermanentAccount Numbers (PAN) given by the Income Tax authorities tothe CANDIDATE. It also requires details of the assets (both AB

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Amovable and immovable) of their spouses and dependants(collectively referred as ASSOCIATES). [Para 26] [915-F; 916-A-B]

OFFENCE:

1.3 Provisions already exist in the Prevention of CorruptionBAct, 1988 (hereafter the PC Act) specifying various activitiesenumerated therein to be offences. For example: Under Section13(1)(e) of the PC Act, it is misconduct for a public servant to bein possession either personally or through some other person,“of pecuniary resources or property disproportionate to his knownCsources of income.” Under Section 13(2), such a misconduct isan offence punishable with imprisonment for a period up to 10years and also liable to fine. This Court has already held that aLEGISLATOR is a public servant. Section 8(1)(m) of the RP Actof 1951 declares that a person convicted for an offence under thePC Act, 1988 is disqualified both for being chosen or continuingDas a LEGISLATOR (the members of the Parliament and the StateLegislatures referred to as “LEGISLATORS”). [Para 35] [924-E; 925-A-B]

DISQUALIFICATION:

E1.4 Under Section 8(1)(m) of the RP Act of 1951, it isprovided that persons convicted and sentenced to imprisonmentfor not less than 6 months for offences under the provisions ofvarious enumerated offences under Section 8 of the RP Act of1951 are disqualified either for being chosen or continuing as aLEGISLATOR. The petitioner seeks such a disqualification toFbe imposed even in the absence of a conviction under theprovisions of the PC Act. [Para 37] [925-C-D; 926-A-B]

1.5 Parliament has prescribed various disqualifications inChapter III of Part II of the RP Act of 1951 (Sections 8, 8A, 9,9A, 10 and 10A). Each of those disqualifications arises out ofGvarious factors specified under each of those sections. Undueaccumulation of wealth (assets of the LEGISLATORS) is not oneof the grounds specified either under any of the abovementionedprovisions or under Articles 102 and 191 of the Constitution whichstipulate some of the disqualifications. However, both the Articlesstipulate that the Parliament may, by or under any law, prescribeH

disqualifications other than those specified thereunder. [Para 38][926-B-C]

Dr. Indramani Pyarelal Gupta & others vs. W.R. Natu& others AIR 1963 SC 274 : [1963] SCR 721 – relied on.

1.6 Manifold and undue accretion of assets ofLEGISLATORS or their ASSOCIATES by itself might be a goodground for disqualifying a person either to be a LEGISLATORor for seeking to get re-elected as a LEGISLATOR. Statutesmade by the Parliament are silent in this regard. But Section169(1) of the RP Act of 1951 authorises the central governmentto make rules for carrying out the purposes of the Act. If thenation believes that those who are elected to its legislative bodiesought not to take undue advantage of their election to theLEGISLATURE for accumulation of wealth by resorting to means,which are inconsistent with the letter and spirit of the Constitutionand also the laws made by the legislature, appropriateprescriptions are required to be made for carrying out the purposeof the RP Act of 1951. The purpose of prescribing disqualificationsis to preserve the purity of the electoral process. Purity ofelectoral process is fundamental to the survival of a healthydemocracy. There is no prohibition either under the Constitutionor the laws made by the Parliament disabling or stipulating thatthe central government should not make rules (in exercise ofthe powers conferred by the Parliament under Section 169 of theRP Act of 1951 read with Articles 102(1)(e) and 191(1)(e) of theConstitution) providing for such disqualification. On the otherhand, Parliament under Section 169 of the RP Act of 1951authorised the Government of India to make rules for carryingout the purposes of the Act. The Conduct of Election Rules, 1961is an example of subordinate legislation; enacted by the CentralGovernment pursuant to the power given under Section 169(1)of the RP Act of 1951. Section 169(2) authorizes the making ofrules for carrying out the purposes of the Act – ‘without prejudiceto the generality of the power to make Rules’. The power underSection 169 is very wide. The function of rule-making is to fill upthe gaps in the working of a statute because no legislature canever comprehend all possible situations which are required tobe regulated by the statute. Logically, there is no difficulty in A

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Aaccepting the submission of the petitioner in the light of themandate of the directive principles and the prescription of theParliament under the PC Act that such undue accretion of wealthis a culpable offence. There is a need to make appropriateprovision declaring that the UNDUE ACCRETION OF ASSETSis a ground for disqualifying a LEGISLATOR even withoutBprosecuting the LEGISLATOR for offences under the PC Act.It is well settled that a given set of facts may in law give rise toboth civil and criminal consequences. For example; in the contextof employment under State, a given set of facts can give rise to aprosecution for an offence and also simultaneously form the basisCfor disciplinary action under the relevant Rules governing theservice of an employee. [Paras 40-42] [927-C-G; 928-A-D]

1.7 It is always open to the LEGISLATURE to declare thatany member thereof is unfit to continue as such. If a temporarydisqualification could be imposed on a LEGISLATOR even inDthe absence of any legislative prescription, in the light of theScheme and tenor of Articles 102(1)(e) and 191(1)(e) read withSection 169 of the RP Act of 1951, the Government of India wouldundoubtedly be competent to make such a stipulation by makingappropriate Rules declaring that UNDUE ACCRETION OFASSETS would render a LEGISLATOR “disqualified”. Further,Eit would be equally competent for the Government of India toestablish a permanent mechanism for monitoring the financialaffairs of the LEGISLATORS and their ASSOCIATES forperiodically ascertaining the relevant facts. Because theestablishment of such a permanent mechanism would be aFnecessary incident of the authority to declare a LEGISLATOR“disqualified”. [Paras 43, 46] [928-D; 929-E-G]

Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others(2007) 3 SCC 184 : [2007] 1 SCR 317– relied on.

INFORMATION TO THE VOTER:G

1.8 The information regarding the sources of income of theCANDIDATES and their ASSOCIATES, would certainly help thevoter to make an informed choice of the candidate to representthe constituency in the LEGISLATURE. It is, therefore, a partof the fundamental right under Article 19(1)(a) as explained byHthis Court in ADR case. Collection of such data can be undertaken by any governmental agency or even the Election Commission.The enforcement of such a fundamental right needs no statutorysanction. This Court and the High Courts are expressly authorizedby the Constitution to give appropriate directions to the Stateand its instrumentalities and other bodies for enforcement ofFundamental Rights. On the other hand, nobody has thefundamental right to be a LEGISLATOR or to contest an electionto become a LEGISLATOR. They are only constitutional rightsstructured by various limitations prescribed by the Constitutionand statutes like the RP Act of 1951. The Constitution expresslypermits the structuring of those rights by the Parliament by orunder the authority of law by prescribing further qualifications ordisqualifications. To contest an election for becoming a legislator,a CANDIDATE does not require the consent of all the votersexcept the appropriate number of proposers being electors ofthe Constituency, and compliance with other proceduralrequirements stipulated under the RP Act of 1951 and the rulesmade thereunder. But to get elected, every CANDIDATErequires the approval of the ‘majority’ of the number of voters ofthe Constituency choosing to exercise their right to vote. Votershave a fundamental right to know the relevant information aboutthe CANDIDATES. For reasons discussed earlier, the financialbackground in all its aspects, of the CANDIDATE and his/herASSOCIATES is relevant and critical information. Therefore, aCANDIDATE’S constitutional right to contest an election to thelegislature should be subservient to the voter’s fundamental rightto know the relevant information regarding the CANDIDATE;information which is critical to the making of an informed andrational choice in this area. [Paras 47-49] [929-H; 930-A, D, F-G;931-A-B; 932-A-B]

Union of India v. Association for Democratic Reformsand Another (2002) 5 SCC 294 : [2002] 3 SCR 696 –

relied on.

1.9 No doubt, compelling a CANDIDATE to disclose therelevant information, would to an extent be a legal burden on theCANDIDATE’S constitutional right to contest an election. Thequestion, therefore, is whether it requires a statutory sanction tocreate such compulsion. When the scheme of the Constitution is A

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Aanalysed, rights falling under the Fundamental Rights chaptercannot be abrogated or taken away except by authority of law.Law in the context has always been held by this Court to requirestatutory basis. There are various other rights conferred by theConstitution other than the fundamental rights. Whenever it wasthought fit that such rights should be curtailed, the text of theBConstitution made a declaration to that effect and also stipulatedthe manner in which such rights could be controlled or regulated.Article 102 is a limitation on the constitutional right of the citizensto seek the membership of the Parliament. It prescribes certaindisqualifications for being chosen as or for a being a Member ofCeither House of the Parliament. It further declares that apart fromthe enumerated disqualifications, other disqualifications could beprescribed by or under any law made by the Parliament. In otherwords, Parliament could itself prescribe disqualifications or couldauthorize some other body or authority to prescribe suchdisqualifications. Similar is the structure of Article 84 with respectDto qualifications for membership of Parliament. A disqualificationcould be prescribed by a Rule. Logically there cannot be anyobjection for imposing the legal burden upon the CANDIDATESto disclose the relevant information by RULES (subordinatelegislation) under the RP Act of 1951. Form 26 provides forEvarious kinds of information to be disclosed by the candidate. Itcannot be said that the existing information required to bedisclosed under the Affidavit is exhaustive of all the informationa candidate needs to provide. Neither is the information providedunder Section 33A an exhaustive list. This is because anyembargo placed on the voters’ right to know the relevantFinformation to be disclosed by the candidate is subject to scrutinyunder the fundamental right of the voter under Article 19(1)(a).Therefore, any limitation on information to voter cannot beinferred. Form 26 is only indicative of the information which isrequired to enable the voter to make an informed choice. AndGthere is no legal bar in Section 169(2) to fetter the CentralGovernment’s rule making power from making such informationavailable. [Para 50] [932-C-G; 933-A-C]

1.10 Under Section 33 of the RP Act of 1951, everyCANDIDATE is required to deliver to the returning officer “aHnomination paper completed in the prescribed form…”. The expression “prescribed” is defined under Section 2(g) to mean“prescribed by rules made under this Act”. Section 169 authorisesthe Government of India by notification in the Official Gazette tomake rules for carrying out the purposes of the Act. Therefore,the contents of the nomination form could be determined by theRules. [Para 51] [933-D]

1.11 Amendment of the RP Act of 1951 is a matterexclusively within the domain of the Parliament. It is well settledthat no court could compel and no writ could be issued to compelany legislative body to make a law. It must be left to the wisdomof the legislature. Prayers 1(2) and 3, insofar as they seekdirections in the nature of mandamus to consider amendment ofthe RP Act of 1951 cannot be granted. In prayer 1(1), the petitionerseeks a direction to respondent Nos.1 and 2 to make changes inForm 26 prescribed under Rule 4A of the RULES, which wouldprovide for calling upon the CANDIDATES to declare theirsources of income along with the sources of the income of theirrespective ASSOCIATES. The prescription such as the onesought by the petitioner regarding the disclosure of the sourcesof income of the CANDIDATE and his/her ASSOCIATES in anomination could certainly be made by making appropriate Rules.The Government of India, functioning as a statutory body forprescribing rules under the RP Act of 1951, is amenable to writjurisdiction under Article 32 for the enforcement of thefundamental right under Article 19(1)(a) of the voter to know therelevant information with respect to the candidates. RespondentNos.1 and 2 are constitutionally obliged to implement thedirections given by this Court in exercise of its jurisdiction underthe Constitution. It may also be noticed that Section 169(1) ofthe RP Act of 1951 obligates the Government of India to makeRules after consulting the Election Commission. The informationregarding the sources of income of the LEGISLATORS and theirASSOCIATES and CANDIDATES is relevant andLEGISLATORS and CANDIDATES could be compelled evenby subordinate legislation. There is no reason for declining prayer1(1). [Paras 53, 54] [934-B-E; 935-A-B]

1.12 In the light of the law declared by this Court in ADRcase and PUCL case, there is no legal or normative impediment A

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Anor has any tenable legal objection been raised by any one of therespondents, for issuance of the direction relating to the changesin FORM 26 (declaration by the CANDIDATES). Therefore, the1(1) should be granted and is accordingly granted. It is directedthat Rule 4A of the RULES and Form 26 appended to the RULESshall be suitably amended, requiring CANDIDATES and theirBASSOCIATES to declare their sources of income. [Para 55] [935-C, F]

People’s Union for Civil Liberties (PUCL) & Another v.Union of India & Another (2003) 4 SCC 399 – relied on.

C1.13 In prayer 1(3)(ii), the petitioner seeks a direction forestablishment of a permanent mechanism to inquire/ investigateinto the disproportionate increase in the assets of LEGISLATORSduring their tenure as LEGISLATORS. Note has already beentaken of (i) the fact that increase in the assets of theLEGISLATORS and/or their ASSOCIATES disproportionate toDthe known sources of their respective incomes is, by compellinginference, a constitutionally impermissible conduct and mayeventually constitute offences punishable under the PC Act and(ii) ‘undue influence’ within the meaning of Section 123 of the RPAct of 1951. In order to effectuate the constitutional and legalEobligations of LEGISLATORS and their ASSOCIATES, theirassets and sources of income are required to be continuouslymonitored to maintain the purity of the electoral process andintegrity of the democratic structure of this country. Justice LouisD. Brandeis, perceptively observed: “the most important politicaloffice is that of the private citizen.” The citizen, the ultimateFrepository of sovereignty in a democracy must have access to allinformation that enables critical audit of the performance of theState, its instrumentalities and their incumbent or aspiring publicofficials. It is only through access to such information that thecitizen is enabled/empowered to make rational choices as regardsGthose holding or aspiring to hold public offices, of the State. [Paras56-58] [936-A-E]

1.14 The State owes a constitutional obligation to the peopleof the country to ensure that there is no concentration of wealthto the common detriment and to the debilitation of democracy.HTherefore, it is necessary, as rightly prayed by the petitioner, to have a permanent institutional mechanism dedicated to the task.Such a mechanism is required to periodically collect data ofLEGISLATORS and their respective ASSOCIATES and examinein every case whether there is disproportionate increase in theassets and recommend action in appropriate cases either toprosecute the LEGISLATOR and/or LEGISLATOR’S respectiveASSOCIATES or place the information before the appropriatelegislature to consider the eligibility of such LEGISLATORS tocontinue to be members of the concerned House of thelegislature. Further, data so collected by the said mechanism,along with the analysis and recommendation, if any, as noted aboveshould be placed in the public domain to enable the voters ofsuch LEGISLATOR to take an informed and appropriate decision,if such LEGISLATOR chooses to contest any election for anylegislative body in future. For the reasons mentioned above,prayer 1(3)(ii) of the 1[st] respondent is allowed. [Paras 59-61] [936-F-H; 937-A-B]

1.15 In prayer 1(3)(i), the petitioner prays that an inquiry/investigation be conducted into the “disproportionate increasein the assets” of the LEGISLATORS named in Annexure P-6 tothe writ petition. An inquiry/investigation such as the one soughtfor by the petitioner with reference to the named LEGISLATORSwould amount to selective scrutiny of the matter in the absenceof any permanent mechanism regularly monitoring the growth ofthe assets of all the LEGISLATORS and/or their ASSOCIATESas a class. Such a selective investigation could lead to politicalwitch-hunting. Therefore, this relief is declined at this stage. [Para62] [937-C-D]

1.16 Prayer no.2 seeks a declaration that non-disclosureof assets and sources of income would amount to ‘undue influence’– a corrupt practice under Section 123(2) of the RP Act of 1951.The non-disclosure of assets and sources of income of theCANDIDATES and their ASSOCIATES would constitute acorrupt practice falling under heading ‘undue influence’ as definedunder Section 123(2) of the RP Act of 1951. Therefore, prayerNo.2 is allowed. [Paras 63, 64] [937-E; 938-B; 939-E]

1.17 In Prayer No. 4, the petitioner is only seekinginformation regarding the contracts, if any with the appropriate A

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Agovernment either by the candidate or his/her spouse anddependants. In the light of the foregoing discussion, theinformation such as the one required under the above-mentionedprayer is certainly relevant information in the context ofdisqualification on the ground of undue accretion of assets,therefore, there is no objection for granting the relief as prayedBfor. [Para 65-66] [939-F-H]

1.18 Further, the petitioner seeks Form 26 be amended toprovide certain further information. An analysis of the informationsought indicates that all the information is in the context ofstatutorily prescribed disqualifications under the RP Act of 1951.CSuch information would certainly be relevant and necessary for avoter to make an appropriate choice at the time of the electionwhether to vote or not in favour of a particular candidate.Therefore, all the six prayers made by way of Prayer no. 5 in I.A.No. 8 are allowed. [Para 67] [939-A-B]

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Samant N. Balkrishna & Another v. George Fernandez& Others, (1969) 3 SCC 238 : [1969] 3 SCR 603; P. V.Narasimha Rao v. State (1998) 4 SCC 626 : [1998] 2SCR 870; Bharat Sanchar Nigam Limited vs. TelecomRegulatory Authority of India and Others (2014) 3 SCCE222 : [2013] 12 SCR 999; Emperor v. Sibnath Banerji(1944-45) 71 IA 241 : AIR 1945 PC 156; State of Biharv. Project Uchcha Vidya, Shiksha Sangh (2006) 2 SCC545 : [2006] 1 SCR 14; Bhuvan Mohan Patnaik &Others v. State of Andhra Pradesh (1975) 3 SCC 185 :[1975] 2 SCR 24; State of J&K v. Lakhwinder KumarF(2013) 6 SCC 333 : [2013] 2 SCR 1070 ; V.T Khanzodev. Reserve Bank of India (1982) 2 SCC 7 : [1982] 3SCR 411; BSNL vs. TRAI (2014) 3 SCC 90; Afzal Ullahv. State of UP AIR 1964 SC 264 : [1964] SCR 991 –referred to.

GJ. K. Industries Limited &Anr vs. Union of India (2007)13 SCC 673 : [2007] 12 SCR 136; Krishnamoorthy v.Sivakumar & Others (2015) 3 SCC 467 : [2015] 4SCR 987 – relied on.

Case Law Reference

H[1969] 3 SCR 603

referred to

Para 15

LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N.SHUKLA v. UNION OF INDIA

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.784 of 2015

Under Article 32 of the Constitution of India.

K. K. Venugopal, AG, P. S. Narsimha, ASG, K. Radhakrishnan,Ms. Meenakshi Arora, Sr. Advs, S. S. Shukla (Petitioner-in-person), Ms.Kamini Jaiswal, Ms. Rani Mishra, Jatinderpal Singh, Ms. Shruti Dyutt,Ms. Vimla Sinha, Ms. Sushma Manchanda, Tufail A. Khan, B. V. BalramDas, Merusagar Samantaray, Ms. Madhvi Diwan, Ms. Lhingneivah,Ms. Viddusshi, Ankur Talwar, Mukesh Kumar Maroria, Mrs. Anil Katiyar,B. Krishna Prasad, Mohit D. Ram, Advs., for the appearing parties.

The Judgment of the Court was delivered by CHELAMESWAR, J. 1. The petitioner is a registered societyunder the Societies Registration Act. It is stated in the petition that mostof the members of the society are retired civil servants. In the past,some of them have held important constitutional offices and, therefore,they have the requisite locus standi. The genuineness of their concernfor the democracy of this country, in our opinion, is beyond any doubt.

2. A clean and fair electoral process is a sine qua non for anydemocracy. Rights and obligations associated with the electoral process,engaged the attention of democratic civil societies and their legislative

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Abodies from time to time. Regulation of the right to vote or the right tocontest elections and matters incidental thereto felt necessary.Democratic societies experiment with various modules of electoralprocesses in response to the felt necessities of the times.

3. When our Constitution was adopted, the framers of theBConstitution thought that some of the basic norms regarding the electoralprocess, i.e. rights of voting or the right to contest elections to variousbodies established by the Constitution are required to be spelt out in theConstitution itself. Our Constitution, as originally enacted[1], provided forelections to the offices of President, Vice President, membership of theParliament, consisting two houses, the ‘Lok Sabha’ and the ‘Rajya Sabha’;Cand the membership of the legislature of the various States, some ofthem unicameral and some bicameral. Under Article 324[2]an ElectionCommission was established for the overall superintendence and controlof such elections.

D1 Local bodies – Part IX of the Constitution which contains with provisions dealingwith local bodies including elections bodies came to be introduced by the Constitution(Seventy-third Amendment) Act, 1992.

2 Article 324. Superintendence, direction and control of elections to be vested inan Election Commission.- (1) The superintendence, direction and control of thepreparation of the electoral rolls for, and the conduct of, all elections to Parliament andEto the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to inthis Constitution as the Election Commission.

(2) The Election Commission shall consist of the Chief Election Commissioner andsuch number of other Election Commissioners, if any, as the President may from timeto time fix and the appointment of the Chief Election Commissioner and other ElectionCommissioners shall, subject to the provisions of any law made in that behalf byFParliament, be made by the President.(3) When any other Election Commissioner is so appointed the Chief ElectionCommissioner shall act as the Chairman of the Election Commission.(4) Before each general election to the House of the People and to the LegislativeAssembly of each State, and before the first general election and thereafter before eachbiennial election to the Legislative Council of each State having such Council, thePresident may also appoint after consultation with the Election Commission suchGRegional Commissioners as he may consider necessary to assist the Election Commissionin the performance of the functions conferred on the Commission by clause (1).(5) Subject to the provisions of any law made by Parliament, the conditions of serviceand tenure of office of the Election Commissioners and the Regional Commissionersshall be such as the President may by rule determine:Provided that the Chief Election Commissioner shall not be removed from his officeexcept in like manner and on the like grounds as a Judge of the Supreme Court and theH

4. With reference to elections to each of the abovementionedbodies or offices, the Constitution stipulates certain basic norms, withrespect to right to vote, the right to contest and the limitations on suchrights. Such norms vary with reference to each of these offices or bodies.Citizenship of the country is a default condition[3] either for voting orcontesting an election to any one of the abovementioned bodies.

5. Article 326[4] stipulates that the elections to the House of theconditions of service of the Chief Election Commissioner shall not be varied to hisdisadvantage after his appointment:

Provided further that any other Election Commissioner or a Regional Commissionershall not be removed from office except on the recommendation of the Chief ElectionCommissioner.

(6) The President, or the Governor of a State, shall, when so requested by the ElectionCommission, make available to the Election Commission or to a Regional Commissionersuch staff as may be necessary for the discharge of the functions conferred on theElection Commission by clause (1).

3 Article 58. Qualifications for election as President.- (1) No person shall beeligible for election as President unless he- (a) is a citizen of India, (b) has completed the age of thirty five years, and

(c) is qualified for election as a member of the House of the People

(2) A person shall not be eligible for election as President if he holds any office ofprofit under the or the Government of any State or under any local or other authoritysubject to the control of any of the said Governments.

Explanation For the purposes of this article, a person shall not be deemed to hold anyoffice of profit by reason only that he is the President or Vice President of the Union orthe Governor of any State or is a Minister either for the Union or for any State Article 84. Qualification for membership of Parliament.- A person shall not bequalified to be chosen to fill a seat in Parliament unless he— (a) is a citizen of India, andmakes and subscribes before some person authorised in that behalf by the ElectionCommission an oath or affirmation according to the form set out for the purpose in theThird Schedule; Article 173. Qualification for membership of the State Legislature. - A personshall not be qualified to be chosen to fill a seat in the Legislature of a State unless he—(a) is a citizen of India, and makes and subscribes before some person authorised in thatbehalf by the Election Commission an oath or affirmation according to the form set outfor the purpose in the Third Schedule; 4 Article 326. Elections to the House of the People and to the LegislativeAssemblies of States to be on the basis of adult suffrage- The elections to theHouse of the People and to the Legislative Assembly of every State shall be on the basisof adult suffrage; that is to say, every person who is a citizen of India and who is notless than 2[eighteen years] of age on such date as may be fixed in that behalf by or underany law made by the appropriate Legislature and is not otherwise disqualified underthis Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled tobe registered as a voter at any such election.

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APeople and the legislative assemblies of the States shall be on the basisof adult suffrage i.e. every person who is a citizen of India and who isnot less than 18 years of age on a date specified by law shall be entitledto be registered as a voter at any such election, with a further stipulationthat such a right is subject to disqualifications prescribed under theConstitution, or by or under any law made by the appropriate legislature.BArticle 326 is also specific about the grounds on which a disqualificationcould be prescribed by the appropriate legislature. They are non-residence,unsoundness of mind and crime or corrupt or illegal practices. The rightto vote at an election to the Rajya Sabha and the Legislative Council ofa State are subject to certain further qualifications. So also in the case of Cthe offices of the President and Vice-President.

Cthe offices of the President and Vice-President.

6. Every person, who is entitled to vote at an election to themembership of the Parliament, is not automatically entitled to become amember of the Parliament. Article 84(b)[5] stipulates any person seekingto become a member of House of People (Lok Sabha) must be not lessDthan 25 years of age and in the case of Council of States (Rajya Sabha)not less than 30 years of age. Similarly, Article 173(b)[6] stipulates similarminimum age requirements for membership of the Legislative Assembliesand the Legislative Councils. Whereas, for the Presidency and Vice-Presidency, the minimum age requirement of 35 years is prescribed underArticle 58(1)(b)[7 ]and 66(3)(b)[8].E

7. Constitution also prescribes certain disqualifications forcontesting any election to any of the abovementioned bodies. UnderArticle 102, a person is disqualified not only for being chosen but also forcontinuing as a member of either House of Parliament on various grounds.

5 Article 84. Qualification for membership of Parliament- A person shall not beFqualified to be chosen to fill a seat in Parliament unless he—(b) is, in the case of a seat in the Council of States, not less than thirty years of age and,in the case of a seat in the House of the People, not less than twenty-five years of age;6 Article 173. Qualification for membership of the State Legislature.- A personshall not be qualified to be chosen to fill a seat in the Legislature of a State unless he—(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five yearsGof age and, in the case of a seat in the Legislative Council, not less than thirty years ofage; 7 Article 58. Qualifications for election as President. (1) No person shall be eligiblefor election as President unless he—

(b) has completed the age of thirty-five years,8 Article 66. Election of Vice President.- (3) No person shall be eligible for electionas Vice-President unless he—H(b) has completed the age of thirty-five years;

“Article 102. Disqualifications for membership

(1) A person shall be disqualified for being chosen as, and forbeing, a member of either House of Parliament- (a) if he holds any office of profit under the Government ofIndia or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by acompetent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired thecitizenship of a foreign State, or is under anyacknowledgement of allegiance or adherence to a foreignState; (e) if he is so disqualified by or under any law made byParliament.

(2) A person shall be disqualified for being a member of eitherHouse of Parliament if he is so disqualified under the TenthSchedule.”

8. Article 191[9] stipulates similar disqualifications for themembership of the State Legislatures. Article 58(1)(c)[10] and Article66(3)(c)[11 ] of the Constitution stipulates in the context of President and 9 Article 191. Disqualifications for membership. (1) A person shall be disqualifiedfor being chosen as, and for being, a member of the Legislative Assembly or LegislativeCouncil of a State—

(a) if he holds any office of profit under the Government of India or the Government ofany State specified in the First Schedule, other than an office declared by the Legislatureof the State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreignState, or is under any acknowledgment of allegiance or adherence to a foreign State;

(2) A person shall be disqualified for being a member of the Legislative Assembly orLegislative Council of a State if he is so disqualified under the Tenth Schedule.10 Article 58. Qualifications for election as President. (1) No person shall beeligible for election as President unless he—

(c) is qualified for election as a member of the House of the People.

11 Article 66. Election of Vice President. (3) No person shall be eligible forelection as Vice-President unless he-

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AVice President that no person shall be eligible to those offices unless aperson is qualified for election as a member of the House of the Peopleand the Council of States respectively. By a necessary implication, thevarious qualifications and disqualifications stipulated under theConstitution for the membership of those two houses also become thequalifications and disqualifications for the offices of President and Vice-BPresident apart from the other qualifications and disqualificationsstipulated under the Constitution.

9. Articles 102(e) and 191(e) authorise the Parliament to makelaws by or under which other disqualifications can be prescribed to contestin an election to the Parliament or to the State Legislature. Similarly,CArticles 84(c) and 173(c) authorise the Parliament to prescribe otherqualifications (by or under law) for securing the membership of theParliament or the Legislature of the State respectively.

10. Entry 72[12] of List I of the Seventh Schedule of the Constitutionof India and Entry 37[13] of List II are the fields of legislative authorityDwhich enable the Parliament and the State Legislatures respectively tomake laws indicated in the various provisions mentioned above and otherrelevant provisions of the Constitution such as Article 327.

11. In exercise of such power, Parliament made various enactmentsregulating various aspects of the electoral process to the various officesEand bodies mentioned earlier. For the present, we are only concernedwith two enactments. The Representation of the People Acts, 1950 and1951 (hereafter RP Act of 1950 or RP Act of 1951) which containprovisions which elaborately deal with the electoral process to theParliament and the State Legislatures. It is sufficient for the purpose ofFthe present case to take note of the fact that RP Act of 1951 containsvarious provisions in Chapter III of Part II stipulating the disqualificationsfor membership of Parliament and State Legislatures. They are Sections8, 8A, 9, 9A, 10 and 10A. Chapter IV of Part II contains a provisionstipulating a disqualification for voting, obviously, referable to the authorityof Parliament under Article 326.G12. The expression ‘disqualified’ is defined under Section 7(b) ofthe RP Act of 1951 as follows:

12 Entry 72. Elections to Parliament, to the Legislatures of States and to the offices ofPresident and Vice-President; the Election Commission.13 Entry 37. Elections to the Legislature of the State subject to the provisions of anyHlaw made by Parliament

“Section 7. Definitions. – In this Chapter, - xxxxxxxxxxxx (b) ‘disqualified’ means disqualified for being chosen as, and forbeing, a member of either House of Parliament or of theLegislative Assembly or Legislative Council of a State under theprovisions of this chapter, and on no other ground.”

13. Section 8 deals with the disqualifications which follow as aconsequence of conviction and imposition of the sentence of imprisonmentof a person for the various offences specified thereunder. The period ofdisqualification under each of the sub-sections, however, is stipulated tobe six years since the release of the convict from prison.

14. Section 8A declares that any person found guilty of a corruptpractice by a High Court trying an election petition shall be disqualifiedfor a period not exceeding six years as may be determined by thePresident of India. Section 123 of the RP Act of 1951 defines corruptpractices. Ten corrupt practices are enumerated therein. By definitioneach one of them is capable of being committed only either by a“candidate”[14 ]at an election or the “election agent”[15] of a candidate orany other person with the consent of either the candidate or the electionagent of a candidate.

14 Candidate is defined under Section 79(b) of the Representation of the People Act,1951 - “candidate” means a person who has been or claims to have been duly nominatedas a candidate at any election.

However, the definition is only for the purpose of Parts VI and VII.

Election agent is not defined but Section 40 of the Representation of the PeopleAct, 1951 stipulates:

“Election Agents.—A candidate at an election may appoint in the prescribedmanner any one person other than himself to be his election agent and whenany such appointment is made, notice of the appointment shall be given in theprescribed manner to the returning officer.”

15 Samant N. Balkrishna & Another v. George Fernandez & Others, (1969) 3 SCC238

Para 25. Pausing here, we may view a little more closely the provisions bearingupon corrupt practices in Section 100. There are many kinds of corrupt practices.They are defined in Section 123 of the Act and we shall come to them later. But thecorrupt practices are viewed separately according as to who commits them. Thefirst class consists of corrupt practices committed by the candidate or his electionagent or any other person with the consent of the candidate or his election agent.

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A15. Section 9 disqualifies a person who having held an office underthe Government of India or under the Government of any State, wasdismissed for corruption or for disloyalty to the State. This disqualificationoperates for five years from date of such dismissal. Section 9A stipulatesthat a person shall be disqualified to contest elections either to theParliament or to the State Legislature if “there subsists a contract enteredBinto by him” with the appropriate Government either for the supply ofgoods or for execution of any work undertaken by the Government.The expression “appropriate Government” is defined under Section7(a)[16].

16. Chapter VIII of Part V of the RP Act of 1951 containsCprovisions dealing with ‘election expenses’. Section 77 mandates thatevery candidate in an election shall keep a separate and correct accountof all expenditure incurred by such candidate either directly or throughhis election agents. Such details shall pertain to the expenditure incurred

DThese, if established, avoid the election without any further condition being fulfilled.Then there is the corrupt practice committed by an agent other than an electionagent. Here an additional fact has to be proved that the result of the election wasmaterially affected. We may attempt to put the same matter in easily understandablelanguage. The petitioner may prove a corrupt practice by the candidate himself orhis election agent or someone with the consent of the candidate or his electionagent, in which case he need not establish what the result of the election would haveEbeen without the corrupt practice. The expression “Any other person” in this partwill include an agent other than an election agent. This is clear from a specialprovision later in the section about an agent other than an election agent. The lawthen is this: If the petitioner does not prove a corrupt practice by the candidate orhis election agent or another person with the consent of the returned candidate orhis election agent but relies on a corrupt agent, he must additionally prove how thecorrupt practice affected the result of the poll. Unless he proves the consent to theFcommission of the corrupt practice on the part of the candidate or his election agenthe must face this additional burden. The definition of agent in this context is to betaken from Section 123 (Explanation) where it is provided that an agent “includesan election agent, a polling agent and any person who is held to have acted as anagent in connection with the election with the consent of the candidate.” In thisexplanation the mention of “an election agent” would appear to beunnecessary because an election agent is the alter ego of the candidate inGthe scheme of the Act and his acts are the acts of the candidate, consent or noconsent on the part of the candidate.

16 Section 7(a). “appropriate Government” means in relation to any disqualification forbeing chosen as or for being a member of either House of Parliament, the CentralGovernment, and in relation to any disqualification for being chosen as or for being amember of the Legislative Assembly or Legislative Council of a State, the StateGovernment;H

between the date of nomination of the candidate and the declaration ofthe election result. Section 78 mandates that every contesting candidateshall lodge with the district election officer a copy of the accountmaintained by him as required under Section 77 of the RP Act of 1951.Section 10A stipulates that the failure to comply with the mandate ofSection 78 renders the defaulters disqualified.

17. Section 123(6) of the RP Act of 1951 declares “the incurringor authorizing of expenditure in contravention of section 77” to be acorrupt practice.

18. Electoral process is the foundation of all democratic forms ofGovernment. The framers of the Constitution were aware of the factthat no election process can be infallible nor can any election be absolutelypure. Therefore, there are bound to be disputes regarding elections.

19. Hence, Article 329(b) of the Constitution stipulates - “Article 329. Bar to interference by courts in electoral matters.—Notwithstanding anything in this Constitution ***** ***** ***** ***** *****

(b) No election to either House of Parliament or to the House oreither House of the Legislature of a State shall be called inquestion except by an election petition presented to such authorityand in such manner as may be provided for by or under any lawmade by the appropriate Legislature.”

While the Article contemplates resolution of the electoral disputes byelection petitions, it prohibits the examination of such disputes beforeconclusion of the election, obviously to ensure that the electoral processis not unduly hampered while it is in progress; essentially a balancebetween order and chaos.

20. Pursuant to the command of Article 329(b), provisions aremade in Part VI of the RP Act of 1951 which deal with disputes regardingelections. Section 100[17]stipulates various grounds on which an election 17 Section 100. Grounds for declaring election to be void.— (1) Subject to theprovisions of sub-section (2) if the High Court is of opinion—

(a) that on the date of his election a returned candidate was not qualified, or wasdisqualified, to be chosen to fill the seat under the Constitution or this Act or theGovernment of Union Territories Act, 1963 (20 of 1963); or (b) that any corrupt practice has been committed by a returned candidate or his electionagent or by any other person with the consent of a returned candidate or his electionagent; or A

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Aof a returned candidate shall be declared to be void. Such a declarationfollows automatically on the proof of the facts constituting any one ofthe grounds mentioned in Section 100(1)(a), (b) and (c). One of thegrounds is that if the High Court comes to the conclusion that the returnedcandidate has committed a corrupt practice either directly or through his‘election agents’[18].

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21. In so far as the ground specified in sub-section 1(d), electionof a returned candidate can be declared to be void only if it is establishedthat (i) any one of the events specified therein did occur and (ii) such anevent materially affected the result of the election insofar as it concernsthe returned candidate.

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22. The experience of the first 50 years of the functioning ofdemocracy in this country disclosed some undesirable trends that havecrept into its working. Various bodies such as the Law Commission ofIndia and a Committee popularly known as the Vohra Committee[19]constituted by the Government of India etc. pointed out variousD

(c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has beenmaterially affected—

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidateby an agent other than his election agent, orE(iii) by the improper reception, refusal or rejection of any vote or the receptionof any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of thisAct or of any rules or orders made under this Act, the High Court shall declarethe election of the returned candidate to be void, If in the opinion of the HighCourt, a returned candidate has been guilty by an agent other than his electionagent, of any corrupt practice but the High Court is satisfied—F(a) that no such corrupt practice was committed at the election by the (a) that no such corrupt practice was committed at the election by thecandidate or his election agent, and every such corrupt practice wascommitted contrary to the orders, and without the consent, of the candidateor his election agent;

(c) that the candidate and his election agent took all reasonable means forpreventing the commission of corrupt practices at the election; and

(d) that in all other respects the election was free from any corrupt practiceGon the part of the candidate or any of his agents, then the High Court maydecide that the election of the returned candidate is not void.”

18 Section 100(1)(b) of the RP Act of 1951

19 See: Union of India v. Association for Democratic Reforms and Another, (2002) 5SCC 294

Para 2 … It is pointed out that the Law Commission has made recommendationHfor debarring a candidate from contesting an election if charges have been shortcomings in the working of the democracy and the need to addressthose concerns.

23. This Court in Union of India v. Association for DemocraticReforms & Another, (2002) 5 SCC 294, hereafter referred to as “ADRcase” opined that “voter speaks out or expresses by casting vote” andsuch a speech is part of the fundamental right under Article 19(1)(a).This Court after taking into consideration various aspects of the matterincluding the above-mentioned Reports and other materials, held that forthe effective exercise of his fundamental right, the voter is entitled tohave all relevant information about the candidates at an election. This framed against him by a court in respect of certain offences and necessity fora candidate seeking to contest election to furnish details regarding criminalcases, if any, pending against him. It has also suggested that true and correctstatement of assets owned by the candidate, his/her spouse and dependentrelations should also be disclosed. The petitioner has also referred para 6.2 ofthe report of the Vohra Committee of the Government of India, Ministry ofHome Affairs, which reads as follows:

“6.2. Like the Director CBI, DIB has also stated that there has been a rapidspread and growth of criminal gangs, armed senas, drug mafias, smugglinggangs, drug peddlers and economic lobbies in the country which have, over theyears, developed an extensive network of contacts with the bureaucrats/government functionaries at the local levels, politicians, media persons andstrategically located individuals in the non-State sector. Some of thesesyndicates also have international linkages, including the foreign intelligenceagencies. In this context DIB has given the following examples:

(i) In certain States like Bihar, Haryana and U.P., these gangs enjoy thepatronage of local-level politicians, cutting across party lines and theprotection of governmental functionaries. Some political leaders becomethe leaders of these gangs, armed senas and over the years get themselveselected to local bodies, State Assemblies and the national Parliament.Resultantly, such elements have acquired considerable political clout seriouslyjeopardising the smooth functioning of the administration and the safety oflife and property of the common man causing a sense of despair and alienationamong the people.

(ii) The big smuggling syndicates having international linkages havespread into and infected the various economic and financial activities,including hawala transactions, circulation of black money and operations ofa vicious parallel economy causing serious damage to the economic fibre ofthe country. These syndicates have acquired substantial financial and musclepower and social respectability and have successfully corrupted thegovernment machinery at all levels and yield enough influence to make thetask of investigating and prosecuting agencies extremely difficult; even themembers of the judicial system have not escaped the embrace of the mafia.”

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ACourt identified some of the important aspects of such information. Theyare (i) candidate’s criminal antecedents (if any), (ii) assets and liabilities,(iii) educational qualifications. This Court also recorded that aParliamentary Committee headed by Shri Indrajit Gupta submitted a Reportin 1998 on the question of State funding of elections, emphasizing theneed of immediate overhauling of the electoral process.B

This Court opined that since the law made by Parliament did notmake appropriate provisions compelling candidates at an election, eitherto the Parliament or the legislative bodies of the State, to discloseinformation regarding the above-mentioned factors, Election Commissionin exercise of its power under Article 324 of the Constitution of India isCrequired to call upon the candidates to furnish the necessary information.

This Court directed disclosure of various facts including informationregarding the assets and liabilities of the candidates at an election andtheir respective spouses and dependents (collectively hereafter referredto for the sake of convenience as ASSOCIATES):D

“48. The Election Commission is directed to call for informationon affidavit by issuing necessary order in exercise of its powerunder Article 324 of the Constitution of India from each candidateseeking election to Parliament or a State Legislature as anecessary part of his nomination paper, furnishing therein,Einformation on the following aspects in relation to his/hercandidature:

(1) Whether the candidate is convicted/acquitted/dischargedof any criminal offence in the past – if any, whether he ispunished with imprisonment or fine.

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(2) Prior to six months of filing of nomination, whether thecandidate is accused in any pending case, of any offencepunishable with imprisonment for two years or more, and inwhich charge is framed or cognizance is taken by the court oflaw. If so, the details thereof.

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

(4) Liabilities, if any, particularly whether there are any overduesof any public financial institution or government dues.

(5) The educational qualifications of the candidate.”

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24. Subsequent[20] to the said judgment, Parliament chose to amendthe RP Act of 1951 by introducing Section 33A. Parliament provided forthe disclosure of certain limited information regarding criminal antecedentsof the candidates at an election, but not of all the information as directedby this Court (in para 48) of the abovementioned judgment.

On the other hand, Parliament made a further declaration underSection 33B.

“33B Candidate to furnish information only under the Actand the rules — Notwithstanding anything contained in anyjudgment, decree or order of any court or any direction, order orany other instruction issued by the Election Commission, nocandidate shall be liable to disclose or furnish any suchinformation, in respect of his election, which is not required to bedisclosed or furnished under this Act or the rules madethereunder.”

In other words, Parliament declared that other informationrequired to be declared by the candidate by virtue of the directionsissued in Union of India v. Association for DemocraticReforms & Another, (2002) 5 SCC 294 need not be given.

25. The constitutionality of the said provision fell for theconsideration before this Court in People’s Union for Civil Liberties(PUCL) & Another v. Union of India & Another, (2003) 4 SCC 399,”hereafter referred to as “PUCL case. This Court held Section 33B tobe beyond the legislative competence of the Parliament. This Courtrecorded[21] that Section 33A fails to ensure complete compliance withthe directions issued by this Court in ADR case.

26. Be that as it may, Section 33A mandates that a candidate isalso required to deliver to the returning officer at the time of the filing ofnomination an affidavit sworn by the candidate in the prescribed form[22].

20 Judgment is dated 02.05.2002 and the Amendment introducing Section 33A is dated28.12.2002 (By The Representation of the People (Third Amendment) Act, 1951 (ActNo.72 of 2002)

21 “78. … The Amended Act does not wholly cover the directions issued by this Court.On the contrary, it provides that a candidate would not be bound to furnish certaininformation as directed by this Court.”

22 Section 33A. Right to information.—

(2) The candidate of his proposer, as the case may be, shall, at the time of delivering tothe returning officer the nomination paper under sub-section (1) of section 33, alsodeliver to him an affidavit sworn by the candidate in a prescribed form very fine theinformation specified in sub-section (1).

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AAs a corollary to the said mandate, Rule 4A[23] was inserted in the Conductof Election Rules, 1961 (hereafter referred to as the RULES) stipulatingthat an affidavit in the Form No.26 is required to be filed. The form, asoriginally prescribed under Rule 4A w.e.f. 3.9.2002, stood substitutedw.e.f. 1.8.2012. The form, inter alia, requires information regarding thePermanent Account Numbers (PAN) given by the Income Tax authoritiesBto the CANDIDATE. It also requires details of the assets (both movableand immovable) of the ASSOCIATES. The other details required to begiven in the affidavit may not be relevant for the purpose of the presentcase.

27. The petitioner believes that certain further steps are requiredCto be taken for improving the electoral system in order to strengthendemocracy. According to the petitioner, the assets of some of themembers of the Parliament and the State legislatures (hereafter referredto as “LEGISLATORS”) and their ASSOCIATES grewdisproportionately to their known sources of income (hereafter referredDto as UNDUE ACCRETION OF ASSETS). The petitioner maderepresentations to bodies like the Central Board of Direct Taxes and theElection Commission of India requesting them to examine the matterand take appropriate remedial measures. It appears that the petitionerannexed a (sample) list of certain LEGISLATORS whose assetsincreased more than 5 times after they got elected for the first time toEthe concerned legislative bodies. The petitioner believes that there is aneed to periodically examine the sources of income of theLEGISLATORS and their ASSOCIATES to ascertain whether there isan UNDUE ACCRETION OF ASSETS. In the representation to theChairperson of CBDT dated 30 June 2015, the petitioner stated, interFalia, “... As a result, the wealth of politicians has been growing byleaps and bounds at the expense of “We the People”. Evidently,no improvement in system and governance is possible unless therole of money power in winning elections is curbed and the publicGrepresentatives who misuse their position for amassing wealthare brought to book.

23 Rule 4A. Form of affidavit to be filed at the time of delivering nominationpaper.—The candidate or his proposer, as the case may be, shall, at the time of deliveringto the returning officer the nomination paper under subsection (1) of section 33 of theAct, also deliver to him an affidavit sworn by the candidate before a Magistrate of theHfirst class or a Notary in Form 26.

… A list of re-elected MPs and MLAs whose assets areincreased more than five times (500%) after the previouselection, provided by the ADR, is annexed herewith. Detailedinformation about the total income shown in the last IncomeTax Return of these MPs/MLAs and their spouses anddependents is available in the affidavit in Form 26 filled withthe nomination paper at the time of last election. Theseaffidavits are available on the websites of the ElectionCommission of India as well as Chief Electoral Officers of theStates. All that is required to be seen is as to whether theincrease in assets is proportionate to the increase in incomefrom the known sources in the intervening period. The CBDTis best equipped to do this exercise as part of responsibilitycast upon them under the law. After completion of this exercisenecessary follow up can be taken to serve as a lesson to themand deterrent to others to desist from converting public serviceinto private enterprise.”

28. It is in this background, the instant petition came to be filedwherein the petitioner alleges - “That in view of the reluctance of the Parliament to act on their18 year old resolution referred to above and the failure of therespondents to even respond, leave alone meaningfully effectuateimplementation of the judgments of this Hon’ble Court inAssociation of Democratic Reforms (AIR 2002 SC 2112)People’s Union for Civil Liberties (PUCL) (AIR 2003 SC 2363),Resurgence India vs. Election Commission of India and Another(AIR 2014 SC 344) and Krishnamoorthy Vs. Sivakumar (AIR2015 SC 1921) in this regard for restoring and maintaining thepurity of our highest legislative bodies in accordance with theintentions of the founding fathers of the Constitution and theconcern expressed by the framers of the Representation of thePeople Act, 1951 intervention of this Hon’ble Court has becomenecessary in terms of the following observation of this Hon’bleCourt in the case of Vineet Narain, (1998) 1 SCC 226 (para 49).”

in order to justify their approaching this court for the various reliefssought in the writ petition. They are:

“1. issue a writ, order or direction, in the nature of mandamus –

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(1) to respondents no.1 and 2 to make necessary changes inthe Form 26 prescribed under Rule 4A of the Conduct of ElectionRules, 1961 keeping in view the suggestion in para 38 of theWP;

(2) to respondent no.1 to consider suitable amendment in theRepresentation of the People Act 1951 to provide for rejectionof nomination papers of the candidates and disqualification ofMPs/MLAs/MLCs deliberately furnishing wrong informationabout their assets in the affidavit in Form 26 at the time offiling of the nomination;

(3) to respondents no.3 to 5 to-

(i) conduct inquiry/investigation into disproportionate increasein the assets of MPs/MLAs/MLCs included in list inAnnexure P6 to the WP,

(ii) have a permanent mechanism to take similar action inrespect of MPs/MLAs/MLCs whose assets increase bymore than 100% by the next election,

(iii) fast track corruption cases against MPs/MLAs/MLCsto ensure their disposal within one year.

2. declare that non disclosure of assets and sources of incomeof self, spouse and dependents by a candidate would amount toundue influence and thereby, corruption and as such election ofsuch a candidate can be declared null and void under Section100(1)(b) of the RP Act of 1951 in terms of the judgment reportedin AIR 2015 SC 1921.

3. issue a writ, order or direction in the nature of mandamus tothe respondents to consider amending Section 9-A of the Act toinclude contracts with appropriate Government and any publiccompany by the Hindu undivided family/trust/partnership firm(s)/private company (companies) in which the candidate and hisspouse and dependents have a share or interest.

4. issue a writ, order or direction in the nature of mandamus tothe respondents that pending amendment in Section 9-A of theAct, information about the contracts with appropriate Governmentand any public company by the candidate, his/her spouse anddependents directly or by Hindu undivided family/trust/partnership

firm(s)/private company (companies) in which the candidate andhis spouse and dependents have a share or interest shall also beprovided in the affidavit in Form 26 prescribed under the Rules.”

5. By way of I.A. 8/2016 the Petitioner prayed that anamendment be made to the Writ Petition for the addition of thefollowing prayers: As Form 26 prescribed under the Rulesprovides information only about possible disqualification on thebasis of conviction in criminal cases, mentioned in Section 8 ofthe RP Act of 1951, it does not contain information on theprovisions in Section 8-A, 9, 9A, 10, and 10-A regardingdisqualification in Chapter III of the said Act which may rendera candidate ineligible to contest. The Petitioner therefore, praysthat Form 26 may be further amended to provide the followinginformation

I.Whether the candidate was found guilty of a corruptpractice u/S 99 of the RP Act of 1951?

II.If yes, the decision of the President under Section 8-A(3) of the Act on the question of his disqualification,along with the date of the decision.

III.Whether the candidate was dismissed for corruption orfor disloyalty while holding an office under theGovernment of India or the Government of any State?

IV.If, yes the decision of such dismissal as per the certificateissued by the EC under Section 9 of the Act.

V.Whether the candidate is a managing agent, manager orSecretary of any company or Corporation (other thanco-operative society) in the capital of which theappropriate government has not less than twenty-fivepercent share?

VI.Whether the candidate has lodged an account of electionexpenses in respect of the last election contested byhim within the time and in the manner required by orunder the RP Act of 1951?

29. The 2[nd] respondent [Election Commission of India (ECI)] fileda counter affidavit supporting the case of the petitioner insofar as theprayer with respect to the need to obligate the CANDIDATES to disclosetheir sources of income etc.

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A“Para 3.Since the prayers made in the accompanying PIL arenot adversarial, the answering Respondent No.2 – ElectionCommission of India (ECI) supports the cause espoused by thePetitioner organization, which is a step ahead towards a (i)healthier democracy, (ii) in furtherance of level playing field forparticipative democracy, and (iii) free and fair elections. TheBECI supports the prayer No.1 as it has already written to Ministryof Law and Justice to Amend the Form 26 for including thesource of income of candidate and spouse vide letter no.3/4/ECI/LET/FUJC/JUD/ SDR/VOL-I/2016 dated 07.09.2016.”

In substance both the petitioner and the Election Commission believeCthat it is time to cleanse the Augean stable.

30. UNDUE ACCRETION OF ASSETS of LEGISLATORS andtheir ASSOCIATES is certainly a matter which should alarm the citizensand voters of any truly democratic society. Such phenomenon is a sureindicator of the beginning of a failing democracy. If left unattended itDwould inevitably lead to the destruction of democracy and pave the wayfor the rule of mafia. Democracies with higher levels of energy havealready taken note of the problem and addressed it. Unfortunately, inour country, neither the Parliament nor the Election Commission of Indiapaid any attention to the problem so far. This Court in ADR case tookEnote of the fact that in certain democratic countries, laws exist[24]compelling legislators, officers and employees of the State to periodicallymake financial disclosure statements. But this Court did not issue anyfurther direction in that regard. Hence the present writ petition.

31. Undue accumulation of wealth in the hands of any individualFwould not be conducive to the general welfare of the society. It is thepolitical belief underlying the declaration of the Preamble of theConstitution that India should be a Socialistic Republic. Articles 38 and39 of our Constitution declare that the State shall direct its policy towardssecuring that the ownership and control of material resources of thecommunity are distributed so as to best subserve the common good andGguaranteeing that the economic system does not result in the 24 United States of America enacted a law known as Ethics in Government Act, 1978which was further amended in 1989. “Ethics Manual for Members, Employees andOfficers of the US House of Representatives” indicates that such disclosure provisionsHwere enacted to “monitor and deter possible conflicts of interests”.

concentration of wealth and means of production to the commondetriment. In our opinion, such declarations take within their sweep therequirement of taking appropriate measures to ensure thatLEGISLATORS and the ASSOCIATES do not take undue advantageof their constitutional status afforded by the membership of theLEGISLATURE enabling the LEGISLATOR to have access to the powerof the State. Accumulation of wealth in the hands of electedrepresentatives of the people without any known or by questionablesources of income paves way for the rule of mafia substituting the ruleof law. In this regard, both the petitioner and the 2[nd] respondent are adidem. The 2[nd] respondent in its counter stated:

“Para 4. The increasing role of money power in elections is toowell known and is one of the maladies which sometimes reducesthe process of election into a mere farce by placing someprivileged candidates with financial resources in a distinctlyadvantageous position as compared to other candidates. Theresult of such an election cannot reflect the true choice of the people. The system also sometimes deprives qualified and ablepersons of the prerogative to represent masses.”

32. If assets of a LEGISLATOR or his/her ASSOCIATES increasewithout bearing any relationship to their known sources of income, theonly logical inference that can be drawn is that there is some abuse[25 ]ofthe LEGISLATOR’s Constitutional Office. Something which should befundamentally unacceptable in any civilized society and antithetical to aconstitutional Government. It is a phenomenon inconsistent with theprinciple of the Rule of Law and a universally accepted Code of Conductexpected of the holder of a public office in a Constitutional democracy.Cromwell declared that such people are “enemies to all goodgovernments”. The framers of the Constitution and the Parliament toobelieved so. The makers of the Constitution gave sufficient indication ofthat belief when they provided under Articles 102(1)(a) and 191(1)(a)that holding of any office of profit would disqualify a person either tobecome or continue to be a LEGISLATOR. It is that belief whichprompted the Parliament to make the prevention of corruption laws.

33. The most crude process by which a LEGISLATOR or hisASSOCIATES could accumulate assets is by resorting to activities which 25 “behind every great fortune lies a great crime” - BALZAC

AB

C

D

E

FG

Aconstitute offences under the Prevention of Corruption Act, 1988[26](hereafter the PC Act). Gold is their God!

Abnormal growth of assets of a LEGISLATOR or hisASSOCIATES need not always be a consequence of such illegal activity.It could be the result of activities which are improper, i.e. activities whichBmay or may not constitute offences either under the PC Act or anyother law but are inconsistent with the basic constitutional obligationsflowing from the nature of the office of a LEGISLATOR. They aredeputed by the people to get grievances redressed. But they becomethe grievance.

C(i)There are known cases of availing of huge amount of loansfor allegedly commercial purposes from public financialinstitutions by LEGISLATORS or their ASSOCIATESeither directly or through bodies corporate which arecontrolled by them; a notorious fact in a good number ofcases. Such loan accounts become non-performing assets[27]D(NPAs) within the meaning of SARFAESI ACT in the handsof the financial institutions which advance loans. It is equallya widely prevalent phenomenon that borrowers(LEGISLATORS or even others) whose accounts have 26 Section 7 of the PC Act.E“Public servant taking gratification other than legal remuneration in respectof an official act.—Whoever, being, or expecting to be a public servant, accepts orobtains or agrees to accept or attempts to obtain from any person, for himself or forany other person, any gratification whatever, other than legal remuneration, as amotive or reward for doing or forbearing to do any official act or for showing orforbearing to show, in the exercise of his official functions, favour or disfavour to anyperson or for rendering or attempting to render any service or disservice to anyFperson, with the Central Government or any State Government or Parliament or theLegislature of any State or with any local authority, corporation or Governmentcompany referred to in clause (c) of section 2, or with any public servant, whethernamed or otherwise, shall be punishable with imprisonment which shall be not lessthan three years but which may extend to seven years and shall also be liable to fine.”27 Section 2(o) “non-performing asset” means an asset or account of a borrower, whichGhas been classified by a bank or financial institution as sub-standard, doubtful or lossasset, (a) in case such bank or financial institution is administered or regulated byan authority or body established, constituted or appointed by any law forthe time being in force, in accordance with the directions or guidelines relatingto assets classifications issued by such authority or body;(b) in any other case, in accordance with the directions or guidelines relatingHto assets classifications issued by the Reserve Bank;”

become NPAs are able to secure fresh loans in hugeamounts either from the very same or other financialinstitutions.

(ii) Securing of contracts of high monetary value either fromGovernment (Central or State) or other bodies corporatewhich are controlled by Government is another activitywhich enables LEGISLATORS and their ASSOCIATESto acquire huge assets. It is worth mentioning here thatSection 7(d)[28 ]of the RP Act of 1951 initially provided thatany person who has a share or interest in a contract for thesupply of goods or for the execution of any works orperformance of any services either by himself or throughany person or body of persons in trust for him or for hisbenefit etc. is disqualified. However, by amendment ofAct 58 of 1958, the said provision was dropped and Section9A[29] was introduced which enables the ASSOCIATES ofthe LEGISLATORS either directly or through a bodycorporate to acquire such contracts.

Abnormal increase in the personal assets of the LEGISLATORSand their ASSOCIATES is required to be examined in juxtaposition tothe above mentioned activities. Further, it is also necessary to examinewhether such benefits were received by taking undue advantage of theoffice of the LEGISLATOR.

28 Section 7. Disqualification for membership of Parliament or of a StateLegislature – A person shall be disqualified for being chosen as, and for being, amember of either House of Parliament or of the Legislative Assembly or LegislativeCouncil of the state –

(a) xxxxx xxxxxx xxxxxxxxxxxx(b)xxxxx xxxxxx xxxxxxxxxxxx(c)xxxxx xxxxxx xxxxxxxxxxxx(d)If, whether, by himself or by any person or body of person in trust for himor for his benefit or on his account, he has any share or interest in a contractfor the supply of goods to, or for the execution of any works or the performanceof any services undertaken by the appropriate Government.(e)xxxxx xxxxxx xxxxxxxxxxxx(f)xxxxx xxxxxx xxxxxxxxxxxx 29 Section 9A. Disqualification for Government contracts etc.- A person shall bedisqualified if, and for so long as, there subsists a contract entered into by him in thecourse of his trade or business with the appropriate government for the supply ofgoods to, or for the execution of any works, undertaken by that government.

A

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D

E

F

G

H

A34. The question is how to ensure compliance with the constitutionalgoals enshrined in Articles 38 and 39 in the context of the problem onhand.

POSSIBLE SOLUTIONS:

(1) making of laws which render such undue accumulation ofBwealth an offence;

(2) disqualifying LEGISLATORS who have acquired wealththrough unconstitutional means, from continuing as orseeking to get re-elected as LEGISLATORS; and

(3) making it known to the electorate to enable them to make achoice whether such LEGISLATORS should be given afurther opportunity.

C

Whatever be the best solution out of the abovementioned threepossibilities, it requires collection of data regarding the financial statusof the LEGISLATORS and their ASSOCIATES and examining the sameto ascertain whether there is an impermissible accumulation of wealth inDtheir hands.

OFFENCE:

35. Provisions already exist in the Prevention of Corruption Act,1988 (hereafter the PC Act) specifying various activities enumeratedtherein to be offences. For example: Under Section 13(1)(e)[30] of the PCEAct, it is misconduct for a public servant to be in possession either personallyor through some other person, “of pecuniary resources or propertydisproportionate to his known sources of income.” Under Section 13(2)[31], 30 13. Criminal misconduct by a public servant.—(1) A public servant is said tocommit the offence of criminal misconduct,F(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from anyperson for himself or for any other person any gratification other than legal remunerationas a motive or reward such as is mentioned in section 7; or xxxxxxxxxxxxxxxxxxxxxxor (e) if he or any person on his behalf, is in possession or has, at any time during theperiod of his office, been in possession for which the public servant cannot satisfactorilyaccount, of pecuniary resources or property disproportionate to his known sources ofGincome.

Explanation.—For the purposes of this section, “known sources of income” meansincome received from any lawful source and such receipt has been intimated in accordancewith the provisions of any law, rules or orders for the time being applicable to a publicservant.

31 Section 13(2) - Any public servant who commits criminal misconduct shall bepunishable with imprisonment for a term which shall be not less than four years butHwhich may extend to ten years and shall also be liable to fine.

such a misconduct is an offence punishable with imprisonment for aperiod up to 10 years and also liable to fine.

This Court has already held that a LEGISLATOR is a publicservant[32]. Section 8(1)(m)[33] of the RP Act of 1951 declares[34] that aperson convicted for an offence under the PC Act, 1988 is disqualified[35]both for being chosen or continuing as a LEGISLATOR.

DISQUALIFICATION:

36. We now deal with the question of disqualifying LEGISLATORSeither from continuing as LEGISLATORS or from getting re-elected toany legislative body on the ground that they or their ASSOCIATES haveacquired assets which are disproportionate to their known sources ofincome.

37. We have already noted that under Section 8(1)(m) of the RPAct of 1951, it is provided that persons convicted and sentenced to 32 P. V. Narasimha Rao v. State, (1998) 4 SCC 626

“Para 85. Having considered the submissions of the learned counsel on themeaning of the expression “public servant” contained in Section 2(c) of the1988 Act, we are of the view that a Member of Parliament is a publicservant for the purpose of the 1988 Act.”

33 “Section 8. Disqualification on conviction for certain offences.—(1) A personconvicted of an offence punishable under- (m) the Prevention of Corruption Act, 1988 (49 of 1988); shall be disqualified, where the convicted person is sentenced to-

(i) only fine, for a period of six years from the date of such conviction;

(ii) imprisonment, from the date of such conviction and shall continue to bedisqualified for a further period of six years since his release.”

34 But the difficulty lies in initiating the prosecution and obtaining proof of the fact thata LEGISLATOR either by himself or through his ASSOCIATES acquired assets (duringthe incumbency as LEGISLATOR) which are disproportionate to his known sourcesof the income. Initiation of investigation and prosecution for establishing the occurrenceof the offences under the PC Act and proof of the guilt are riddled with proceduralconstraints and political obstacles and dis-prudential difficulties.

It becomes a more complicated and difficult task when the accused himselfhappens to be a law maker/LEGISLATOR. The history of this country during the last70 years speaks eloquently how unsuccessful the State has been in bringing to book theLEGISLATORS with questionable financial integrity. The reasons are many. Lowlevel efficiency of the State machinery (both investigating and prosecuting agencies)and the legal system, lack of political will are some of the known reasons. Criminaljurisprudence gives a great deal of benefit of doubt to an accused person and expects theState to prove the guilt of accused beyond all reasonable doubt.

35 Section 7(b) of the RP Act of 1951:

“disqualified” means disqualified for being chosen as, and for being, a member ofeither House of Parliament or of the Legislative Assembly or Legislative Council of a State.”

A

B

C

D

EF

G

H

Aimprisonment for not less than 6 months for offences under the provisionsof various enumerated offences under Section 8 of the RP Act of 1951are disqualified either for being chosen or continuing as a LEGISLATOR.The petitioner seeks such a disqualification to be imposed even in theabsence of a conviction under the provisions of the PC Act.

B38. Parliament has prescribed various disqualifications in ChapterIII of Part II of the RP Act of 1951 (Sections 8, 8A, 9, 9A, 10 and 10A).Each of those disqualifications arises out of various factors specifiedunder each of those sections. Undue accumulation of wealth (assets ofthe LEGISLATORS) is not one of the grounds specified either underany of the abovementioned provisions or under Articles 102 and 191 ofCthe Constitution which stipulate some of the disqualifications. However,both the Articles[36] stipulate that the Parliament may, by or under anylaw, prescribe disqualifications other than those specified thereunder.

39. The distinction between something done by a law and doneunder a law fell for consideration of this court in several casesDcommencing from Dr. Indramani Pyarelal Gupta & others vs. W.R.Natu & others, AIR 1963 SC 274[37] and a constitution bench of thisCourt held at para 15:

“……. The meaning of the words, “under the Act” is well-known.“By” an Act would mean by a provision directly enacted in theEstatute in question and which is gatherable from its expresslanguage or by necessary implication therefrom. The words“under the Act” would, in that context signify what is not directlyto be found in the statute itself but is conferred or imposed byvirtue of powers enabling this to be done; in other words, bye-Flaws made by a subordinate law-making authority which isempowered to do so by the parent Act. The distinction is thus 36 Article 102. Disqualifications for membership. (1) A person shall be disqualifiedfor being chosen as, and for being, a member of either House of Parliament—

xxxxxxxxxxxx (e) if he is so disqualified by or under any law made by Parliament.G Article 191. Disqualifications for membership. (1) A person shall be disqualifiedfor being chosen as, and for being, a member of the Legislative Assembly or LegislativeCouncil of a State—

xxxxxxxxxxxx

37 See also Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority ofHIndia and Others, (2014) 3 SCC 222, para 90.

between what is directly done by the enactment and what isdone indirectly by rule-making authorities which are vested withpowers in that behalf by the Act. ……….. That in such a sensebye-laws would be subordinate legislation “under the Act” isclear from the terms of Ss.11 and 12 themselves.”

We are of the opinion that the ratio of the judgment applies in all force tothe interpretation of Articles 102(1)(e) and 191(1)(e).

40. Manifold and undue accretion of assets of LEGISLATORS ortheir ASSOCIATES by itself might be a good ground for disqualifying aperson either to be a LEGISLATOR or for seeking to get re-elected asa LEGISLATOR. Statutes made by the Parliament are silent in thisregard. But Section 169(1)[38] of the RP Act of 1951 authorises the centralgovernment to make rules for carrying out the purposes of the Act. Ifthe nation believes that those who are elected to its legislative bodiesought not to take undue advantage of their election to the LEGISLATUREfor accumulation of wealth by resorting to means, which are inconsistentwith the letter and spirit of the Constitution and also the laws made bythe legislature, appropriate prescriptions are required to be made forcarrying out the purpose of the RP Act of 1951. The purpose ofprescribing disqualifications is to preserve the purity of the electoralprocess. Purity of electoral process is fundamental to the survival of ahealthy democracy. We do not see any prohibition either under theConstitution or the laws made by the Parliament disabling or stipulatingthat the central government should not make rules (in exercise of thepowers conferred by the Parliament under Section 169 of the RP Act of1951 read with Articles 102(1)(e) and 191(1)(e) of the Constitution)providing for such disqualification. On the other hand, Parliament underSection 169 of the RP Act of 1951 authorised the Government of Indiato make rules for carrying out the purposes of the Act.

41. The Conduct of Election Rules, 1961 is an example ofsubordinate legislation; enacted by the Central Government pursuant tothe power given under Section 169(1) of the RP Act of 1951.[39] Section169(2) authorizes the making of rules for carrying out the purposes ofthe Act – ‘without prejudice to the generality of the power to make 38 Section 169. Power to make rules.—(1) The Central Government may, afterconsulting the Election Commission, by notification in the Official Gazette, make rulesfor carrying out the purposes of this Act.

39 The Central Government may, after consulting the Election Commission, bynotification in the Official Gazette, make rules for carrying out the purposes of this Act.

A

B

C

DEF

G

H

ARules’. The power under Section 169 is very wide. The function of rule-making is to fill up the gaps in the working of a statute because nolegislature can ever comprehend all possible situations which are requiredto be regulated by the statute.[40]

42. Logically, we see no difficulty in accepting the submission ofBthe petitioner in the light of the mandate of the directive principles andthe prescription of the Parliament under the PC Act that such undueaccretion of wealth is a culpable offence. There is a need to makeappropriate provision declaring that the UNDUE ACCRETION OFASSETS is a ground for disqualifying a LEGISLATOR even withoutprosecuting the LEGISLATOR for offences under the PC Act. It isCwell settled that a given set of facts may in law give rise to both civil andcriminal consequences. For example; in the context of employment underState, a given set of facts can give rise to a prosecution for an offenceand also simultaneously form the basis for disciplinary action under therelevant Rules governing the service of an employee.D

43. It is always open to the LEGISLATURE to declare that anymember thereof is unfit to continue as such. In Raja Ram Pal v. Hon’bleSpeaker, Lok Sabha & Others, (2007) 3 SCC 184, this Court took noteof the history of the parliamentary privileges, scheme and text of theConstitution and opined that the power of expulsion is part of the privilegesEand immunities of the Parliament. It is relevant to notice that underArticle 105(3), “the powers, privileges and immunities of each house ofParliament” may be “defined by Parliament by law”. This court noticedand proceeded on the assumption[41] that no such law existed. Yet it washeld by this Court[42] that such power was part of the privileges of theLegislature.F

44. It therefore follows clearly and a fortiori that at least in thecontext of expulsion of a member of the LEGISLATURE, by a decisionof that House, no statutory provision is required for stipulating the grounds 40 Para 133 of J.K. Industries Limited &Anr vs. Union of India., (2007) 13 SCC 673It is well settled that, what is permitted by the concept of “delegation” isGdelegation of ancillary or subordinate legislative functions or what is fictionally calledas “power to full up the details the details”. The judgments of this Court have laid downthat the legislature may, after laying down the legislative policy, confer discretion onadministrative or executive agency like the Central Government to work out detailswithin the framework of the legislative policy laid down in the plenary enactment.

41 See paragraph 43 Per. Sabharwal, CJI.

H42 See paragraph 318, Per. Sabharwal, CJI.

on which a member could be expelled or the procedure which is requiredto be followed. Though Article 105 and 194 authorises theLEGISLATURE to define the “powers and privileges and immunities”,the non-exercise of that power to legislate, does not detract the powerof the LEGISLATURE to expel a member on the ground that a memberresorted to some activity which does not meet the approval of the House.A decision to expel a member would certainly have the same effect asdisqualifying a member on the grounds specified under Articles 102 and191. This Court in Raja Ram Pal case highlighted the differencebetween “expulsion” and “disqualification”.[43] It may not answer thedescription of the expression disqualified as defined under the RP Act of1951 or the grounds mentioned under Article 102 and 191. Thedisqualification brought about by expulsion is limited, of course, to thetenure of the member and does not disqualify him from seeking to becomea member again by contesting an election in accordance with law.

45. The next question to be examined is whether it is permissiblefor the respondents to make subordinate legislation stipulating thatUNDUE ACCRETION OF ASSETS would render a LEGISLATORdisqualified within the meaning of the expression under Section 7(b) ofthe RP Act of 1951 and to establish a body to undertake the regularmonitoring of financial affairs of the LEGISLATORS.

46. If a temporary disqualification, such as the one discussed above,could be imposed on a LEGISLATOR even in the absence of anylegislative prescription, in the light of the Scheme and tenor of Articles102(1)(e) and 191(1)(e) read with Section 169 of the RP Act of 1951,the Government of India would undoubtedly be competent to make sucha stipulation by making appropriate Rules declaring that UNDUEACCRETION OF ASSETS would render a LEGISLATOR“disqualified”. Further, it would be equally competent for the Governmentof India to establish a permanent mechanism for monitoring the financialaffairs of the LEGISLATORS and their ASSOCIATES for periodicallyascertaining the relevant facts. Because the establishment of such apermanent mechanism would be a necessary incident of the authority todeclare a LEGISLATOR “disqualified”.

INFORMATION TO THE VOTER:

47. The information regarding the sources of income of theCANDIDATES and their ASSOCIATES, would in our opinion, certainly 43 Id. at paragraphs 144 and 145

A

B

C

D

E

FG

H

Ahelp the voter to make an informed choice of the candidate to representthe constituency in the LEGISLATURE. It is, therefore, a part of thefundamental right under Article 19(1)(a) as explained by this Court inADR case.

It must be mentioned that the 1[st] respondent in its counter affidavitBstated:

“Para 6. That it is further stated that the Election Commission ofIndia’s proposal relating to amending of Form 26 was thoroughlyexamined and considered in Ministry of Law and Justice and afinal decision has been taken to amend the Form 26 ofC1961 Rules. As the issues involved relate to policy matter andafter due deliberations on the subject matter a final policy decisionwas taken to amend the Form 26.”

48. Collection of such data can be undertaken by any governmentalagency or even the Election Commission[44]. The present writ petitionDseeks that State be compelled to make a law authorizing the collectionof data pertaining to the financial affairs of the LEGISLATORS. Thepetitioner submits that the first step in the collection of data should be tocall upon those who seek to get elected to a legislative body to make adeclaration of - (i) their assets and those of their ASSOCIATES (whichis already a requirement under Section 33 of the RP Act of 1951 etc.);Eand (ii) the sources of their income.

49. The obligation to make the second of the above-mentionedtwo declarations arises as a corollary to the fundamental right of thevoter under Article 19(1)(a) to know the relevant information with respectto the CANDIDATE, to enable the voter to make an assessment andFmake an appropriate choice of his representative in the Legislature. Theenforcement of such a fundamental right needs no statutory sanction.This Court and the High Courts are expressly authorized by theConstitution to give appropriate directions to the State and itsinstrumentalities and other bodies for enforcement of Fundamental Rights.GOn the other hand, nobody has the fundamental right to be aLEGISLATOR or to contest an election to become a LEGISLATOR.They are only constitutional rights structured by various limitationsprescribed by the Constitution and statutes like the RP Act of 1951. The 44 We must make it clear that nothing in law prevents a vigilant citizen from collectingHsuch data for initiating appropriate proceedings in accordance with law.

Constitution expressly permits the structuring of those rights by theParliament by or under the authority of law by prescribing furtherqualifications or disqualifications.[45 ]To contest an election for becominga legislator, a CANDIDATE does not require the consent of all the votersexcept the appropriate number of proposers being electors of theConstituency,[46] and compliance with other procedural requirementsstipulated under the RP Act of 1951 and the rules made thereunder. Butto get elected, every CANDIDATE requires the approval of the ‘majority’of the number of voters of the Constituency choosing to exercise their 45 See Articles 84(c), 102(1)(e), 173(c) and 191(1)(e)Article 84. Qualification for membership of Parliament.— A person shall not bequalified to be chosen to fill a seat in Parliament unless he—xxxxx xxxxxxxxxx

(c) possesses such other qualifications as may be prescribed in that behalf byor under any law made by Parliament Article 102. Disqualifications for membership. (1) A person shall be disqualifiedfor being chosen as, and for being, a member of either House of Parliament—

xxxxx xxxxxxxxxx

(e) if he is so disqualified by or under any law made by Parliament.Article 173. Qualification for membership of the State Legislature.— A personshall not be qualified to be chosen to fill a seat in the Legislature of a State unless he—

xxxxx xxxxxxxxxx

(c) possesses such other qualifications as may be prescribed in that behalf byor under any law made by Parliament Article 191. Disqualifications for membership. (1) A person shall be disqualifiedfor being chosen as, and for being, a member of the Legislative Assembly or LegislativeCouncil of a State—

xxxxxxxxxxxxxxx

46 Section 33. Presentation of nomination paper and requirements for a validnomination. —(1) On or before the date appointed under clause (a) of section 30 eachCANDIDATE shall, either in person or by his proposer, between the hours of eleveno’clock in the forenoon and three o’clock in the afternoon deliver to the returningofficer at the place specified in this behalf in the notice issued under section 31 anomination paper completed in the prescribed form and signed by the CANDIDATEand by an elector of the constituency as proposer :

Provided that a CANDIDATE not set up by a recognised political party, shall not bedeemed to be duly nominated for election form a constituency unless the nominationpaper is subscribed by ten proposers being electors of the constituency:

Provided further that no nomination paper shall be delivered to the returning officer ona day which is a public holiday:

Provided also that in the case of a local authorities’ constituency, graduates’ constituencyor teachers’ constituency, the reference to “an elector of the constituency as proposer”shall be construed as a reference to ten per cent. of the electors of the constituency orten such electors, whichever is less, as proposers.

A

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Aright to vote. Voters have a fundamental right to know the relevantinformation about the CANDIDATES. For reasons discussed earlier,the financial background in all its aspects, of the CANDIDATE and his/her ASSOCIATES is relevant and critical information. Therefore, aCANDIDATE’S constitutional right to contest an election to thelegislature should be subservient to the voter’s fundamental right to knowBthe relevant information regarding the CANDIDATE; information whichis critical to the making of an informed and rational choice in this area.

50. No doubt, compelling a CANDIDATE to disclose the relevantinformation, would to an extent be a legal burden on the CANDIDATE’Sconstitutional right to contest an election. The question, therefore, wouldCbe whether it requires a statutory sanction to create such compulsion.

If we analyse the scheme of the Constitution, rights falling underthe Fundamental Rights chapter cannot be abrogated or taken awayexcept by authority of law. Law in the context has always been held bythis Court to require statutory basis[47]. There are various other rightsDconferred by the Constitution other than the fundamental rights.Whenever it was thought fit that such rights should be curtailed, the textof the Constitution made a declaration to that effect and also stipulatedthe manner in which such rights could be controlled or regulated. Article102[48] is a limitation on the constitutional right of the citizens to seek theEmembership of the Parliament. It prescribes certain disqualifications forbeing chosen as or for a being a Member of either House of theParliament. It further declares that apart from the enumerateddisqualifications, other disqualifications could be prescribed by or underany law made by the Parliament. In other words, Parliament could itselfprescribe disqualifications or could authorize some other body or authorityFto prescribe such disqualifications. Similar is the structure of Article 84with respect to qualifications for membership of Parliament. We havealready recorded our opinion that a disqualification could be prescribedby a Rule. Logically there cannot be any objection for imposing the legalburden upon the CANDIDATES to disclose the relevant information by G

47 State of Bihar v. Project Uchcha Vidya, Shiksha Sangh, (2006) 2 SCC 545, 574paragraph 69; Bhuvan Mohan Patnaik & Others v. State of Andhra Pradesh, (1975) 3SCC 185, 189 paragraph 14

48 Supra Note 35

H

RULES (subordinate legislation) under the RP Act of 1951. Form 26provides for various kinds of information to be disclosed by the candidate.It cannot be said that the existing information required to be disclosedunder the Affidavit is exhaustive of all the information a candidate needsto provide. Neither is the information provided under Section 33A anexhaustive list. This is because any embargo placed on the voters’ rightto know the relevant information to be disclosed by the candidate issubject to scrutiny under the fundamental right of the voter under Article19(1)(a). Therefore, any limitation on information to voter cannot beinferred. We are of the opinion that Form 26 is only indicative of theinformation which is required to enable the voter to make an informedchoice. And we see no legal bar in Section 169(2) to fetter the CentralGovernment’s rule making power from making such informationavailable.[49]

51. Under Section 33[50] of the RP Act of 1951, every CANDIDATEis required to deliver to the returning officer “a nomination papercompleted in the prescribed form…”. The expression “prescribed” isdefined under Section 2(g) to mean “prescribed by rules made underthis Act”. Section 169[51] authorises the Government of India by notificationin the Official Gazette to make rules for carrying out the purposes of theAct. Therefore, the contents of the nomination form could be determinedby the Rules.

52. We shall now examine each one of the prayers in the writpetition and the feasibility of granting any relief thereon in the light ofour above conclusions.

49 The authority for this proposition has its genesis in Emperor v. Sibnath Banerji,(1944-45) 71 IA 241: AIR 1945 PC 156: “…. In the opinion of their Lordships, thefunction of sub-section (2) is merely an illustrative one; the rule-making power isconferred by sub-section (1), and ‘the rules’ which are referred to in the openingsentence of sub-section (2) are the rules which are authorized by, and made under, sub-section (1), as, indeed, is expressly stated by the words ‘without prejudice to thegenerality of the powers conferred by sub-section (1)”; This statement of law wasreiterated in State of J&K v. Lakhwinder Kumar, (2013) 6 SCC 333 at 343 para 23;V.T Khanzode v. Reserve Bank of India, (1982) 2 SCC 7 at page 14 para. 15; BSNLVs. TRAI (2014) 3 SCC para. 90; Afzal Ullah v. State of UP, AIR 1964 SC 26450 Supra Note. 46

51 It, inter alia, authorizes the making of rules pertaining to the form of affidavit undersub section (3) of Section 33A. (Inserted by Act 72 of 2002, Sec. 6 (w.r.e.f 24-8-2002)

AB

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A53. At the outset, we must make it clear that prayers 1(2)[52] and3[53 ]seek directions to the respondents for amendment of the provisionsof the RP Act of 1951.

Amendment of the RP Act of 1951 is a matter exclusively withinthe domain of the Parliament. It is well settled that no court could compelBand no writ could be issued to compel any legislative body to make alaw. It must be left to the wisdom of the legislature. Prayers 1(2) and 3,insofar as they seek directions in the nature of mandamus to consideramendment of the RP Act of 1951 cannot be granted.

54. In prayer 1(1)[54], the petitioner seeks a direction to respondentCNos.1 and 2 to make changes in Form 26 prescribed under Rule 4A ofthe RULES, which would provide for calling upon the CANDIDATESto declare their sources of income along with the sources of the incomeof their respective ASSOCIATES.

The prescription such as the one sought by the petitioner regardingthe disclosure of the sources of income of the CANDIDATE and his/Dher ASSOCIATES in a nomination could certainly be made by makingappropriate Rules. The next question is whether the respondents couldbe compelled to make appropriate Rules for the above-mentionedpurpose. The Government of India, functioning as a statutory body forprescribing rules under the RP Act of 1951, is amenable to writ jurisdictionEunder Article 32 for the enforcement of the fundamental right underArticle 19(1)(a) of the voter to know the relevant information with respectto the candidates.

52 1. issue a writ, order or direction, in the nature of mandamus –xxxxxxxxxF(2) to respondent no.1 to consider suitable amendment in the Representationof the People Act 1951 to provide for rejection of nomination papers of thecandidates and disqualification of MPs/MLAs/MLCs deliberately furnishingwrong information about their assets in the affidavit in Form 26 at the time offiling of the nomination; 53 3. issue a writ, order or direction in the nature of mandamus to the respondents toconsider amending Section 9-A of the Act to include contracts with appropriateGGovernment and any public company by the Hindu undivided family/trust/partnershipfirm(s)/private company (companies) in which the candidate and his spouse anddependents have a share or interest.

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(1) to respondents no.1 and 2 to make necessary changes in the Form 26prescribed under Rule 4A of the Conduct of Election Rules, 1961 keeping inview the suggestion in para 38 of the WP;”H

Respondent Nos.1 and 2 are constitutionally obliged to implementthe directions given by this Court in exercise of its jurisdiction under theConstitution. It may also be noticed that Section 169(1) of the RP Act of1951 obligates the Government of India to make Rules after consultingthe Election Commission. In the light of the conclusions recorded inparas 42 to 45, we are also of the opinion the information regarding thesources of income of the LEGISLATORS and their ASSOCIATES andCANDIDATES is relevant and LEGISLATORS and CANDIDATEScould be compelled even by subordinate legislation. We see no reasonfor declining prayer 1(1).

55. In the light of the law declared by this Court in ADR case andPUCL case, we do not see any legal or normative impediment nor hasany tenable legal objection been raised before us by any one of therespondents, for issuance of the direction relating to the changes in FORM26 (declaration by the CANDIDATES). On the other hand, the 2[nd]respondent in his counter stated:

“7. It is submitted that so far as the first prayer in the captionedwrit petition is concerned, the information about source(s) ofincome of candidates, their spouses and dependants will be astep in the direction of enhancing transparency and should formpart of the declaration in Col.(9) of Form 26. The AnsweringRespondent Commission vide its letter no.3/4/ECI/LET/FUNC/JUD/SDR/Vol.I/2016 dated 7.09.2016 has already requested theMinistry of Law and Justice to consider the proposed amendmentsmade in column (3) and column (9) of Form 26 and in total affirmation with the prayer made by the petitioner.”

Therefore, we are of the opinion the prayer 1(1) should be grantedand is accordingly granted. We direct that Rule 4A of the RULES andForm 26 appended to the RULES shall be suitably amended, requiringCANDIDATES and their ASSOCIATES to declare their sources ofincome.

56. We shall now deal with prayer 1(3) which seeks three distinctreliefs. In our opinion, it would be more logical to deal with the reliefsought in prayer 1(3)(ii)[55]

55 1. issue a writ, order or direction, in the nature of mandamus -xxxxxxxxx (3) to respondents no.3 to 5 to-xxxxxxxxx(ii) have a permanent mechanism to take similar action in respect of MPs/MLAs/MLCs whose assets increase by more than 100% by the next election, AB

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AIn prayer 1(3)(ii), the petitioner seeks a direction for establishmentof a permanent mechanism to inquire/ investigate into the disproportionateincrease in the assets of LEGISLATORS during their tenure asLEGISLATORS.

The 1[st] respondent is silent in its counter in this regard exceptBmaking an omnibus claim and a general stand that all the prayers are inthe realm of policy and within the exclusive domain of the Parliament.

57. We have already taken note of (i) the fact that increase in theassets of the LEGISLATORS and/or their ASSOCIATESdisproportionate to the known sources of their respective incomes is, byCcompelling inference, a constitutionally impermissible conduct and mayeventually constitute offences punishable under the PC Act and (ii) ‘undueinfluence’ within the meaning of Section 123 of the RP Act of 1951. Inorder to effectuate the constitutional and legal obligations ofLEGISLATORS and their ASSOCIATES, their assets and sources ofincome are required to be continuously monitored to maintain the purityDof the electoral process and integrity of the democratic structure of thiscountry. Justice Louis D. Brandeis, perceptively observed: “the mostimportant political office is that of the private citizen.”

58. The citizen, the ultimate repository of sovereignty in ademocracy must have access to all information that enables critical auditEof the performance of the State, its instrumentalities and their incumbentor aspiring public officials. It is only through access to such informationthat the citizen is enabled/empowered to make rational choices as regardsthose holding or aspiring to hold public offices, of the State.

59. The State owes a constitutional obligation to the people of theFcountry to ensure that there is no concentration of wealth to the commondetriment and to the debilitation of democracy. Therefore, it is necessary,as rightly prayed by the petitioner, to have a permanent institutionalmechanism dedicated to the task. Such a mechanism is required toperiodically collect data of LEGISLATORS and their respectiveGASSOCIATES and examine in every case whether there isdisproportionate increase in the assets and recommend action inappropriate cases either to prosecute the LEGISLATOR and/orLEGISLATOR’S respective ASSOCIATES or place the informationbefore the appropriate legislature to consider the eligibility of suchLEGISLATORS to continue to be members of the concerned House ofHthe legislature.

60. Further, data so collected by the said mechanism, along withthe analysis and recommendation, if any, as noted above should be placedin the public domain to enable the voters of such LEGISLATOR to takean informed and appropriate decision, if such LEGISLATOR chooses tocontest any election for any legislative body in future.

61. For the reasons mentioned above, we allow the prayer 1(3)(ii)of the 1[st] respondent.

62. In prayer 1(3)(i)[56], the petitioner prays that an inquiry/investigation be conducted into the “disproportionate increase in theassets” of the LEGISLATORS named in Annexure P-6 to the writpetition.

We are of the opinion that an inquiry/investigation such as the onesought for by the petitioner with reference to the named LEGISLATORSwould amount to selective scrutiny of the matter in the absence of anypermanent mechanism regularly monitoring the growth of the assets ofall the LEGISLATORS and/or their ASSOCIATES as a class. Such aselective investigation could lead to political witch-hunting. We, therefore,decline this relief, at this stage.

63. We shall now deal with prayer no.2[57] which seeks a declarationthat non-disclosure of assets and sources of income would amount to‘undue influence’ – a corrupt practice under Section 123(2) of the RPAct of 1951. In this behalf, heavy reliance is placed by the petitioner ona judgment of this Court in Krishnamoorthy v. Sivakumar & Others,(2015) 3 SCC 467. It was a case arising under the Tamil NaduPanchayats Act, 1994. A notification was issued by the State ElectionCommission stipulating that every candidate at an election to anyPanchayat is required to disclose information inter alia whether thecandidate was accused in any pending criminal case of any offencepunishable with imprisonment for two years or more and in which charges 56 1. issue a writ, order or direction, in the nature of mandamus - xxxxxxxxx

(3) to respondents no.3 to 5 to-

(i) conduct inquiry/investigation into disproportionate increase in the assetsof MPs/MLAs/MLCs included in list in Annexure P6 to the WP, 57 Prayer No.2 – “declare that non disclosure of assets and sources of income of self,spouse and dependents by a candidate would amount to undue influence and thereby,corruption and as such election of such a candidate can be declared null and void underSection 100(1)(b) of the RP Act of 1951 in terms of the judgment reported in AIR 2015SC 1921.”

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Ahave been framed or cognizance has been taken by a court of law. Inan election petition, it was alleged that there were certain criminal casespending falling in the abovementioned categories but the said informationwas not disclosed by the returned candidate at the time of filing hisnomination. One of the questions before this Court was whether suchnon-disclosure amounted to ‘undue influence’ – a corrupt practice underBthe Panchayats Act. It may be mentioned that the Panchayats Act simplyadopted the definition of a corrupt practice as contained in Section 123of the RP Act of 1951.

On an elaborate consideration of various aspects of the matter,this Court held as follows:C

91. … While filing the nomination form, if the requisiteinformation, as has been highlighted by us, relating to criminalantecedents, is not given, indubitably, there is an attempt tosuppress, effort to misguide and keep the people in dark. Thisattempt undeniably and undisputedly is undue influence and,Dtherefore, amounts to corrupt practice. …”

64. For the very same logic as adopted by this Court inKrishnamoorthy, we are also of the opinion that the non-disclosure ofassets and sources of income of the CANDIDATES and theirASSOCIATES would constitute a corrupt practice falling under headingE‘undue influence’ as defined under Section 123(2) of the RP Act of1951. We, therefore, allow prayer No.2.

65. Coming to Prayer No. 4, the petitioner is only seekinginformation regarding the contracts, if any with the appropriategovernment either by the candidate or his/her spouse and dependants.F

“..information about the contracts with appropriate Governmentand any public company by the candidate, his/her spouse anddependents directly or by Hindu undivided family/trust/partnershipfirm(s)/private company (companies) in which the candidate andhis spouse and dependents have a share or interest shall also beGprovided in the affidavit in Form 26 prescribed under the Rules.”

66. In the light of the foregoing discussion, the information suchas the one required under the above-mentioned prayer is certainly relevantinformation in the context of disqualification on the ground of undueaccretion of assets, therefore, we see no objection for granting the reliefHas prayed for.

67. We are left with the reliefs sought by way of prayer No. 5 inI.A. No. 8 of 2016. The petitioner seeks Form 26 be amended to providecertain further information. An analysis of the information sought (ascan be seen from the prayer) indicates that all the information is in thecontext of statutorily prescribed disqualifications under the RP Act of1951. In our opinion, such information would certainly be relevant andnecessary for a voter to make an appropriate choice at the time of theelection whether to vote or not in favour of a particular candidate.Therefore, all the six prayers made in I.A. No. 8 are allowed.

68. The writ petition is allowed as indicated above, but, in thecircumstances, without any costs.

Divya Pandey Writ Petition allowed.

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