Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.784 OF 2015
LOK PRAHARI,
THROUGH ITS GENERAL SECRETARY S.N. SHUKLA ... Petitioner
Versus
UNION OF INDIA & OTHERS ... Respondents
J U D G M E N T
Chelameswar, J.
1. The petitioner is a registered society under the Societies
Registration Act. It is stated in the petition that most of 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 concern for the democracy of this
country, in our opinion, is beyond any doubt.
2
2. A clean and fair electoral process is a sine qua non for
any democracy. Rights and obligations associated with the
electoral process, engaged the attention of democratic civil
societies and their legislative bodies from time to time.
Regulation of the right to vote or the right to contest elections
and matters incidental thereto felt necessary. Democratic
societies experiment with various modules of electoral
processes in response to the felt necessities of the times.
3. When our Constitution was adopted, the framers of the
Constitution thought that some of the basic norms regarding
the electoral process, i.e. rights of voting or the right to contest
elections to various bodies established by the Constitution are
required to be spelt out in the Constitution itself. Our
Constitution, as originally enacted1, provided for elections to
the offices of President, Vice President, membership of the
Parliament, consisting two houses, the ‘Lok Sabha’ and the
‘Rajya Sabha’; and the membership of the legislature of the
various States, some of them unicameral and some bicameral.
1
Local bodies – Part IX of the Constitution which contains with provisions dealing with local bodies
including elections bodies came to be introduced by the Constitution (Seventy-third Amendment) Act, 1992.
3
Under Article 3242 an Election Commission was established
for the overall superintendence and control of such elections.
4. With reference to elections to each of the abovementioned
bodies or offices, the Constitution stipulates certain basic
norms, with respect to right to vote, the right to contest and
the limitations on such rights. Such norms vary with
reference to each of these offices or bodies. Citizenship of the
country is a default condition3 either for voting or contesting
an election to any one of the abovementioned bodies.
2 Article 324. Superintendence, direction and control of elections to be vested in an Election
Commission.- (1) The superintendence, direction and control of the preparation of the electoral rolls for,
and the conduct of, all elections to Parliament and to 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 in this Constitution as the Election Commission.
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other
Election Commissioners, if any, as the President may from time to time fix and the appointment of the
Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law
made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as
the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State,
and before the first general election and thereafter before each biennial election to the Legislative Council
of each State having such Council, the President may also appoint after consultation with the Election
Commission such Regional Commissioners as he may consider necessary to assist the Election
Commission in 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 service and tenure of office
of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule
determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner
and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election
Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed
from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make
available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the
discharge of the functions conferred on the Election Commission by clause (1).
3 Article 58. Qualifications for election as President.- (1) No person shall be eligible 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
4
5. Article 3264 stipulates that the elections to the House of
the People and the legislative assemblies of the States shall be
on the basis of adult suffrage i.e. every person who is a citizen
of India and who is not less than 18 years of age on a date
specified by law shall be entitled to be registered as a voter at
any such election, with a further stipulation that such a right
is subject to disqualifications prescribed under the
Constitution, or by or under any law made by the appropriate
legislature. Article 326 is also specific about the grounds on
which a disqualification could be prescribed by the
appropriate legislature. They are non-residence, unsoundness
of mind and crime or corrupt or illegal practices. The right to
vote at an election to the Rajya Sabha and the Legislative
Council of a State are subject to certain further qualifications.
(2) A person shall not be eligible for election as President if he holds any office of profit under the
or the Government of any State or under any local or other authority subject to the control of any of the said
Governments.
Explanation For the purposes of this article, a person shall not be deemed to hold any office of profit
by reason only that he is the President or Vice President of the Union or the 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 be qualified to be chosen to
fill a seat in Parliament unless he— (a) is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or affirmation according to the form set out
for the purpose in the Third Schedule;
Article 173. Qualification for membership of the State Legislature. - A person shall 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 that behalf by the Election Commission an oath or affirmation
according to the form set out for the purpose in the Third Schedule;
4 Article 326. Elections to the House of the People and to the Legislative Assemblies of States to be on
the basis of adult suffrage- The elections to the House of the People and to the Legislative Assembly of
every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and
who is not less than 2[eighteen years] of age on such date as may be fixed in that behalf by or under any
law made by the appropriate Legislature and is not otherwise disqualified under this 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 to be registered as a voter at any such election.
5
So also in the case of the offices of the President and VicePresident.
6. Every person, who is entitled to vote at an election to the
membership of the Parliament, is not automatically entitled to
become a member of the Parliament. Article 84(b)5 stipulates
any person seeking to become a member of House of People
(Lok Sabha) must be not less than 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 similar minimum
age requirements for membership of the Legislative Assemblies
and the Legislative Councils. Whereas, for the Presidency and
Vice-Presidency, the minimum age requirement of 35 years is
prescribed under Article 58(1)(b)7 and 66(3)(b)8.
7. Constitution also prescribes certain disqualifications for
contesting any election to any of the abovementioned bodies.
5 Article 84. Qualification for membership of Parliament- A person shall not be qualified 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 person shall 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 years of age and, in the
case of a seat in the Legislative Council, not less than thirty years of age;
7 Article 58. Qualifications for election as President. (1) No person shall be eligible for 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 election as Vice-President
unless he—
(b) has completed the age of thirty-five years;
6
Under Article 102, a person is disqualified not only for being
chosen but also for continuing as a member of either House of
Parliament on various grounds.
“Article 102. Disqualifications for membership
(1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament(a)
if he holds any office of profit under the Government of
India 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 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 foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by
Parliament.
(2) A person shall be disqualified for being a member of
either House of Parliament if he is so disqualified under the
Tenth Schedule.”
8. Article 191 9 stipulates similar disqualifications for the
membership of the State Legislatures. Article 58(1)(c)10 and
9 Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,
and for being, a member of the Legislative Assembly or Legislative Council of a State—
(a) if he holds any office of profit under the Government of India or the Government of any State specified
in the First Schedule, other than an office declared by the Legislature of 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 foreign State, or is under
any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of
a State if he is so disqualified under the Tenth Schedule.
7
Article 66(3)(c)11 of the Constitution stipulates in the context of
President and Vice President that no person shall be eligible to
those offices unless a person is qualified for election as a
member of the House of the People and the Council of States
respectively. By a necessary implication, the various
qualifications and disqualifications stipulated under the
Constitution for the membership of those two houses also
become the qualifications and disqualifications for the offices
of President and Vice-President apart from the other
qualifications and disqualifications stipulated under the
Constitution.
9. Articles 102(e) and 191(e) authorise the Parliament to
make laws by or under which other disqualifications can be
prescribed to contest in an election to the Parliament or to the
State Legislature. Similarly, Articles 84(c) and 173(c) authorise
the Parliament to prescribe other qualifications (by or under
law) for securing the membership of the Parliament or the
Legislature of the State respectively.
10 Article 58. Qualifications for election as President. (1) No person shall be eligible 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 for election as Vice-President
unless he(c)
is qualified for election as a member of the Council of States
8
10. Entry 72 12 of List I of the Seventh Schedule of the
Constitution of India and Entry 3713 of List II are the fields of
legislative authority which enable the Parliament and the State
Legislatures respectively to make laws indicated in the various
provisions mentioned above and other relevant provisions of
the Constitution such as Article 327.
11. In exercise of such power, Parliament made various
enactments regulating various aspects of the electoral process
to the various offices and bodies mentioned earlier. For the
present, we are only concerned with two enactments. The
Representation of the People Acts, 1950 and 1951 (hereafter
RP Act of 1950 or RP Act of 1951) which contain provisions
which elaborately deal with the electoral process to the
Parliament and the State Legislatures. It is sufficient for the
purpose of the present case to take note of the fact that RP Act
of 1951 contains various provisions in Chapter III of Part II
stipulating the disqualifications for membership of Parliament
and State Legislatures. They are Sections 8, 8A, 9, 9A, 10 and
10A. Chapter IV of Part II contains a provision stipulating a
12 Entry 72. Elections to Parliament, to the Legislatures of States and to the offices of President and VicePresident;
the Election Commission.
13 Entry 37. Elections to the Legislature of the State subject to the provisions of any law made by
Parliament
9
disqualification for voting, obviously, referable to the authority
of Parliament under Article 326.
12. The expression ‘disqualified’ is defined under Section 7(b)
of the RP Act of 1951 as follows:
“Section 7. Definitions. – In this Chapter, -
xxx xxx xxx xxx
(b) ‘disqualified’ means disqualified for being chosen as, and
for being, a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of a State under
the provisions of this chapter, and on no other ground.”
13. Section 8 deals with the disqualifications which follow as
a consequence of conviction and imposition of the sentence of
imprisonment of a person for the various offences specified
thereunder. The period of disqualification under each of the
sub-sections, however, is stipulated to be six years since the
release of the convict from prison.
14. Section 8A declares that any person found guilty of a
corrupt practice by a High Court trying an election petition
shall be disqualified for a period not exceeding six years as
may be determined by the President of India. Section 123 of
the RP Act of 1951 defines corrupt practices. Ten corrupt
practices are enumerated therein. By definition each one of
them is capable of being committed only either by a
10
“candidate” 14 at an election or the “election agent” 15 of a
candidate or any other person with the consent of either the
candidate or the election agent of a candidate.
15. Section 9 disqualifies a person who having held an office
under the Government of India or under the Government of
any State, was dismissed for corruption or for disloyalty to the
State. This disqualification operates for five years from date of
such dismissal. Section 9A stipulates that a person shall be
disqualified to contest elections either to the Parliament or to
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 nominated as 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 People Act, 1951
stipulates:
“Election Agents.—A candidate at an election may appoint in the prescribed manner any one
person other than himself to be his election agent and when any such appointment is made, notice
of the appointment shall be given in the prescribed manner to the returning officer.”
15 Samant N. Balkrishna & Another v. George Fernandez & Others, (1969) 3 SCC 238
Para 25. Pausing here, we may view a little more closely the provisions bearing upon 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 the corrupt practices are viewed separately according as to who commits
them. The first class consists of corrupt practices committed by the candidate or his election agent or any
other person with the consent of the candidate or his election agent. These, if established, avoid the
election without any further condition being fulfilled. Then there is the corrupt practice committed by an
agent other than an election agent. Here an additional fact has to be proved that the result of the election
was materially affected. We may attempt to put the same matter in easily understandable language. The
petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with
the consent of the candidate or his election agent, in which case he need not establish what the result of
the election would have been without the corrupt practice. The expression “Any other person” in this part
will include an agent other than an election agent. This is clear from a special provision later in the
section about an agent other than an election agent. The law then is this: If the petitioner does not prove a
corrupt practice by the candidate or his election agent or another person with the consent of the returned
candidate or his election agent but relies on a corrupt agent, he must additionally prove how the corrupt
practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt
practice on the part of the candidate or his election agent he must face this additional burden. The
definition of agent in this context is to be taken from Section 123 (Explanation) where it is provided that
an agent “includes an election agent, a polling agent and any person who is held to have acted as an agent
in connection with the election with the consent of the candidate.” In this explanation the mention of
“an election agent” would appear to be unnecessary because an election agent is the alter ego of the
candidate in the scheme of the Act and his acts are the acts of the candidate, consent or no consent
on the part of the candidate.
11
the State Legislature if “there subsists a contract entered into by
him” with the appropriate Government either for the supply of
goods or for execution of any work undertaken by the
Government. The expression “appropriate Government” is defined
under Section 7(a)16.
16. Chapter VIII of Part V of the RP Act of 1951 contains
provisions dealing with ‘election expenses’. Section 77 mandates
that every candidate in an election shall keep a separate and
correct account of all expenditure incurred by such candidate
either directly or through his election agents. Such details
shall pertain to the expenditure incurred between the date of
nomination of the candidate and the declaration of the election
result. Section 78 mandates that every contesting candidate
shall lodge with the district election officer a copy of the
account maintained by him as required under Section 77 of
the RP Act of 1951. Section 10A stipulates that the failure to
comply with the mandate of Section 78 renders the defaulters
disqualified.
16 Section 7(a). “appropriate Government” means in relation to any disqualification for being chosen as or
for being a member of either House of Parliament, the Central Government, and in relation to any
disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative
Council of a State, the State Government;
12
17. Section 123(6) of the RP Act of 1951 declares “the incurring
or authorizing of expenditure in contravention of section 77” to be a
corrupt practice.
18. Electoral process is the foundation of all democratic
forms of Government. The framers of the Constitution were
aware of the fact that no election process can be infallible nor
can any election be absolutely pure. 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
or either House of the Legislature of a State shall be called in
question except by an election petition presented to such
authority and in such manner as may be provided for by or
under any law made by the appropriate Legislature.”
While the Article contemplates resolution of the electoral
disputes by election petitions, it prohibits the examination of
such disputes before conclusion of the election, obviously to
ensure that the electoral process is not unduly hampered
while it is in progress; essentially a balance between order and
chaos.
13
20. Pursuant to the command of Article 329(b), provisions are
made in Part VI of the RP Act of 1951 which deal with disputes
regarding elections. Section 10017 stipulates various grounds
on which an election of a returned candidate shall be declared
to be void. Such a declaration follows automatically on the
proof of the facts constituting any one of the grounds
mentioned in Section 100(1)(a), (b) and (c). One of the grounds
is that if the High Court comes to the conclusion that the
returned candidate has committed a corrupt practice either
directly or through his ‘election agents’18.
17 Section 100. Grounds for declaring election to be void.— (1) Subject to the provisions 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 was disqualified, to be chosen
to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of
1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any
other person with the consent of a returned candidate or his election agent; or
(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 been materially
affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other
than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is
void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or
orders made under this Act, the High Court shall declare the election of the returned candidate to be
void, If in the opinion of the High Court, a returned candidate has been guilty by an agent other
than his election agent, of any corrupt practice but the High Court is satisfied—
(a) that no such corrupt practice was committed at the election by the candidate or his election
agent, and every such corrupt practice was committed contrary to the orders, and without the
consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the
commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the
candidate or any of his agents, then the High Court may decide that the election of the
returned candidate is not void.” 18 Section 100(1)(b) of the RP Act of 1951
14
21. In so far as the ground specified in sub-section 1(d),
election of a returned candidate can be declared to be void only
if it is established that (i) any one of the events specified
therein did occur and (ii) such an event materially affected the
result of the election insofar as it concerns the returned
candidate.
22. The experience of the first 50 years of the functioning of
democracy in this country disclosed some undesirable trends
that have crept into its working. Various bodies such as the
Law Commission of India and a Committee popularly known
as the Vohra Committee19 constituted by the Government of
19 See: Union of India v. Association for Democratic Reforms and Another, (2002) 5
SCC 294
Para 2 … It is pointed out that the Law Commission has made recommendation for debarring a
candidate from contesting an election if charges have been framed against him by a court in respect of
certain offences and necessity for a candidate seeking to contest election to furnish details regarding
criminal cases, if any, pending against him. It has also suggested that true and correct statement of assets
owned by the candidate, his/her spouse and dependent relations should also be disclosed. The petitioner
has also referred para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of
Home Affairs, which reads as follows:
“6.2. Like the Director CBI, DIB has also stated that there has been a rapid spread and growth of
criminal gangs, armed senas, drug mafias, smuggling gangs, drug peddlers and economic lobbies in the
country which have, over the years, developed an extensive network of contacts with the
bureaucrats/government functionaries at the local levels, politicians, media persons and strategically
located individuals in the non-State sector. Some of these syndicates also have international linkages,
including the foreign intelligence agencies. In this context DIB has given the following examples:
(i) In certain States like Bihar, Haryana and U.P., these gangs enjoy the patronage of locallevel
politicians, cutting across party lines and the protection of governmental functionaries. Some
political leaders become the leaders of these gangs, armed senas and over the years get themselves
elected to local bodies, State Assemblies and the national Parliament. Resultantly, such elements
have acquired considerable political clout seriously jeopardising the smooth functioning of the
administration and the safety of life and property of the common man causing a sense of despair
and alienation among the people.
(ii) The big smuggling syndicates having international linkages have spread into and infected
the various economic and financial activities, including hawala transactions, circulation of black
money and operations of a vicious parallel economy causing serious damage to the economic fibre
15
India etc. pointed out various shortcomings in the working of
the democracy and the need to address those concerns.
23. This Court in Union of India v. Association for
Democratic Reforms & Another, (2002) 5 SCC 294,
hereafter referred to as “ADR case” opined that “voter speaks
out or expresses by casting vote” and such a speech is part of the
fundamental right under Article 19(1)(a). This Court after
taking into consideration various aspects of the matter
including the above-mentioned Reports and other materials,
held that for the effective exercise of his fundamental right, the
voter is entitled to have all relevant information about the
candidates at an election. This Court identified some of the
important aspects of such information. They are (i)
candidate’s criminal antecedents (if any), (ii) assets and
liabilities, (iii) educational qualifications. This Court also
recorded that a Parliamentary Committee headed by Shri
Indrajit Gupta submitted a Report in 1998 on the question of
State funding of elections, emphasizing the need of immediate
overhauling of the electoral process.
of the country. These syndicates have acquired substantial financial and muscle power and social
respectability and have successfully corrupted the government machinery at all levels and yield
enough influence to make the task of investigating and prosecuting agencies extremely difficult;
even the members of the judicial system have not escaped the embrace of the mafia.”
16
This Court opined that since the law made by Parliament
did not make appropriate provisions compelling candidates at
an election, either to the Parliament or the legislative bodies of
the State, to disclose information regarding the abovementioned
factors, Election Commission in exercise of its
power under Article 324 of the Constitution of India is
required to call upon the candidates to furnish the necessary
information.
This Court directed disclosure of various facts including
information regarding the assets and liabilities of the
candidates at an election and their respective spouses and
dependents (collectively hereafter referred to for the sake of
convenience as ASSOCIATES):
“48. The Election Commission is directed to call for
information on affidavit by issuing necessary order in exercise
of its power under Article 324 of the Constitution of India from
each candidate seeking election to Parliament or a State
Legislature as a necessary part of his nomination paper,
furnishing therein, information on the following aspects in
relation to his/her candidature:
(1) Whether the candidate is
convicted/acquitted/discharged of any criminal offence
in the past – if any, whether he is punished with
imprisonment or fine.
(2) Prior to six months of filing of nomination, whether
the candidate is accused in any pending case, of any
offence punishable with imprisonment for two years or
more, and in which charge is framed or cognizance is
taken by the court of law. If so, the details thereof.
17
(3) The assets (immovable, movable, bank balance, etc.)
of a candidate and of his/her spouse and that of
dependants.
(4) Liabilities, if any, particularly whether there are any
overdues of any public financial institution or
government dues.
(5) The educational qualifications of the candidate.”
24. Subsequent20 to the said judgment, Parliament chose to
amend the RP Act of 1951 by introducing Section 33A.
Parliament provided for the disclosure of certain limited
information regarding criminal antecedents of the candidates
at an election, but not of all the information as directed by this
Court (in para 48) of the abovementioned judgment.
On the other hand, Parliament made a further
declaration under Section 33B.
“33B Candidate to furnish information only under the
Act and the rules —Notwithstanding anything contained in
any judgment, decree or order of any court or any direction,
order or any other instruction issued by the Election
Commission, no candidate shall be liable to disclose or
furnish any such information, in respect of his election,
which is not required to be disclosed or furnished under this
Act or the rules made thereunder.”
In other words, Parliament declared that other
information required to be declared by the candidate by virtue
of the directions issued in Union of India v. Association for
20 Judgment is dated 02.05.2002 and the Amendment introducing Section 33A is dated 28.12.2002 (By The
Representation of the People (Third Amendment) Act, 1951 (Act No.72 of 2002)
18
Democratic Reforms & Another, (2002) 5 SCC 294 need not
be given.
25. The constitutionality of the said provision fell for the
consideration 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 to be beyond the legislative
competence of the Parliament. This Court recorded 21 that
Section 33A fails to ensure complete compliance with the
directions issued by this Court in ADR case.
26. Be that as it may, Section 33A mandates that a
candidate is also required to deliver to the returning officer at
the time of the filing of nomination an affidavit sworn by the
candidate in the prescribed form22. As a corollary to the said
mandate, Rule 4A23 was inserted in the Conduct of Election
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 certain
information 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 to the returning officer
the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the
candidate in a prescribed form very fine the information specified in sub-section (1).
23 Rule 4A. Form of affidavit to be filed at the time of delivering nomination paper.—The candidate or
his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination
paper under subsection (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate
before a Magistrate of the first class or a Notary in Form 26.
19
Rules, 1961 (hereafter referred to as the RULES) stipulating
that an affidavit in the Form No.26 is required to be filed. The
form, as originally prescribed under Rule 4A w.e.f. 3.9.2002,
stood substituted w.e.f. 1.8.2012. The form, inter alia, requires
information regarding the Permanent Account Numbers (PAN)
given by the Income Tax authorities to the CANDIDATE. It
also requires details of the assets (both movable and
immovable) of the ASSOCIATES. The other details required to
be given in the affidavit may not be relevant for the purpose of
the present case.
27. The petitioner believes that certain further steps are
required to be taken for improving the electoral system in
order to strengthen democracy. According to the petitioner,
the assets of some of the members of the Parliament and the
State legislatures (hereafter referred to as “LEGISLATORS”)
and their ASSOCIATES grew disproportionately to their known
sources of income (hereafter referred to as UNDUE
ACCRETION OF ASSETS). The petitioner made representations
to bodies like the Central Board of Direct Taxes and the
Election Commission of India requesting them to examine the
matter and take appropriate remedial measures. It appears
20
that the petitioner annexed a (sample) list of certain
LEGISLATORS whose assets increased more than 5 times after
they got elected for the first time to the concerned legislative
bodies. The petitioner believes that there is a need to
periodically examine the sources of income of the
LEGISLATORS and their ASSOCIATES to ascertain whether
there is an UNDUE ACCRETION OF ASSETS. In the
representation to the Chairperson of CBDT dated 30 June
2015, the petitioner stated, inter alia,
“... As a result, the wealth of politicians has been growing by
leaps and bounds at the expense of “We the People”.
Evidently, no improvement in system and governance is
possible unless the role of money power in winning elections
is curbed and the public representatives who misuse their
position for amassing wealth are brought to book.
… A list of re-elected MPs and MLAs whose assets are
increased more than five times (500%) after the
previous election, provided by the ADR, is annexed
herewith. Detailed information about the total income
shown in the last Income Tax Return of these
MPs/MLAs and their spouses and dependents is
available in the affidavit in Form 26 filled with the
nomination paper at the time of last election. These
affidavits are available on the websites of the Election
Commission of India as well as Chief Electoral Officers
of the States. All that is required to be seen is as to
whether the increase in assets is proportionate to the
increase in income from the known sources in the
intervening period. The CBDT is best equipped to do
this exercise as part of responsibility cast upon them
under the law. After completion of this exercise
necessary follow up can be taken to serve as a lesson
to them and deterrent to others to desist from
converting public service into private enterprise.”
21
28. It is in this background, the instant petition came to be
filed wherein the petitioner alleges -
“That in view of the reluctance of the Parliament to act on
their 18 year old resolution referred to above and the failure
of the respondents to even respond, leave alone meaningfully
effectuate implementation of the judgments of this Hon’ble
Court in Association 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 (AIR 2015 SC 1921) in this regard for restoring
and maintaining the purity of our highest legislative bodies
in accordance with the intentions of the founding fathers of
the Constitution and the concern expressed by the framers
of the Representation of the People Act, 1951 intervention of
this Hon’ble Court has become necessary in terms of the
following observation of this Hon’ble Court in the case of
Vineet Narain, (1998) 1 SCC 226 (para 49).”
in order to justify their approaching this court for the various
reliefs sought in the writ petition. They are:
“1. issue a writ, order or direction, in the nature of
mandamus –
(1) to respondents no.1 and 2 to make necessary
changes in the Form 26 prescribed under Rule
4A of the Conduct of Election Rules, 1961
keeping in view the suggestion in para 38 of the
WP;
(2) to respondent no.1 to consider suitable
amendment in the Representation of the People
Act 1951 to provide for rejection of nomination
papers of the candidates and disqualification of
MPs/MLAs/MLCs deliberately furnishing wrong
information about their assets in the affidavit in
Form 26 at the time of filing of the nomination;
(3) to respondents no.3 to 5 to(i)
conduct inquiry/investigation into
disproportionate increase in the assets of
MPs/MLAs/MLCs included in list in
Annexure P6 to the WP,
22
(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,
(iii) fast track corruption cases against
MPs/MLAs/MLCs to ensure their disposal
within one year.
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 under Section 100(1)(b)
of the RP Act of 1951 in terms of the judgment
reported in AIR 2015 SC 1921.
3. issue a writ, order or direction in the nature of
mandamus to the respondents to consider amending
Section 9-A of the Act to include contracts with
appropriate Government and any public company by
the Hindu undivided family/trust/partnership
firm(s)/private company (companies) in which the
candidate and his spouse and dependents have a
share or interest.
4. issue a writ, order or direction in the nature of
mandamus to the respondents that pending
amendment in Section 9-A of the Act, information
about the contracts with appropriate Government and
any public company by the candidate, his/her spouse
and dependents directly or by Hindu undivided
family/trust/partnership firm(s)/private company
(companies) in which the candidate and his spouse
and dependents have a share or interest shall also be
provided in the affidavit in Form 26 prescribed under
the Rules.”
5. By way of I.A. 8/2016 the Petitioner prayed that an
amendment be made to the Writ Petition for the
addition of the following prayers: As Form 26
prescribed under the Rules provides information only
about possible disqualification on the basis of
conviction in criminal cases, mentioned in Section 8 of
the RP Act of 1951, it does not contain information on
the provisions in Section 8-A, 9, 9A, 10, and 10-A
regarding disqualification in Chapter III of the said Act
which may render a candidate ineligible to contest.
The Petitioner therefore, prays that Form 26 may be
further amended to provide the following information
23
I. Whether the candidate was found guilty of a
corrupt practice 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 or for disloyalty while holding an
office under the Government of India or the
Government of any State?
IV. If, yes the decision of such dismissal as per the
certificate issued by the EC under Section 9 of
the Act.
V. Whether the candidate is a managing agent,
manager or Secretary of any company or
Corporation (other than co-operative society) in
the capital of which the appropriate government
has not less than twenty-five percent share?
VI. Whether the candidate has lodged an account of
election expenses in respect of the last election
contested by him within the time and in the
manner required by or under the RP Act of
1951?
29. The 2nd respondent [Election Commission of India (ECI)]
filed a counter affidavit supporting the case of the petitioner
insofar as the prayer with respect to the need to obligate the
CANDIDATES to disclose their sources of income etc.
“Para 3. Since the prayers made in the accompanying PIL
are not adversarial, the answering Respondent No.2 –
Election Commission of India (ECI) supports the cause
espoused by the Petitioner organization, which is a step
ahead towards a (i) healthier democracy, (ii) in furtherance of
level playing field for participative democracy, and (iii) free
and fair elections. The ECI supports the prayer No.1 as it
has already written to Ministry of Law and Justice to Amend
the Form 26 for including the source 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
believe that it is time to cleanse the Augean stable.
24
30. UNDUE ACCRETION OF ASSETS of LEGISLATORS and
their ASSOCIATES is certainly a matter which should alarm
the citizens and voters of any truly democratic society. Such
phenomenon is a sure indicator of the beginning of a failing
democracy. If left unattended it would inevitably lead to the
destruction of democracy and pave the way for the rule of
mafia. Democracies with higher levels of energy have already
taken note of the problem and addressed it. Unfortunately, in
our country, neither the Parliament nor the Election
Commission of India paid any attention to the problem so far.
This Court in ADR case took note of the fact that in certain
democratic countries, laws exist 24 compelling legislators,
officers and employees of the State to periodically make
financial disclosure statements. But this Court did not issue
any further direction in that regard. Hence the present writ
petition.
31. Undue accumulation of wealth in the hands of any
individual would not be conducive to the general welfare of the
24 United States of America enacted a law known as Ethics in Government Act, 1978 which was further
amended in 1989. “Ethics Manual for Members, Employees and Officers of the US House of
Representatives” indicates that such disclosure provisions were enacted to “monitor and deter possible
conflicts of interests”.
25
society. It is the political belief underlying the declaration of
the Preamble of the Constitution that India should be a
Socialistic Republic. Articles 38 and 39 of our Constitution
declare that the State shall direct its policy towards securing
that the ownership and control of material resources of the
community are distributed so as to best subserve the common
good and guaranteeing that the economic system does not
result in the concentration of wealth and means of production
to the common detriment. In our opinion, such declarations
take within their sweep the requirement of taking appropriate
measures to ensure that LEGISLATORS and the ASSOCIATES
do not take undue advantage of their constitutional status
afforded by the membership of the LEGISLATURE enabling the
LEGISLATOR to have access to the power of the State.
Accumulation of wealth in the hands of elected representatives
of the people without any known or by questionable sources of
income paves way for the rule of mafia substituting the rule of
law. In this regard, both the petitioner and the 2nd respondent
are ad idem. The 2nd respondent in its counter stated:
“Para 4. The increasing role of money power in elections is
too well known and is one of the maladies which sometimes
reduces the process of election into a mere farce by placing
some privileged candidates with financial resources in a
distinctly advantageous position as compared to other
26
candidates. The result of such an election cannot reflect the
true choice of the people. The system also sometimes
deprives qualified and able persons of the prerogative to
represent masses.”
32. If assets of a LEGISLATOR or his/her ASSOCIATES
increase without bearing any relationship to their known
sources of income, the only logical inference that can be drawn
is that there is some abuse 25 of the LEGISLATOR’s
Constitutional Office. Something which should be
fundamentally unacceptable in any civilized society and
antithetical to a constitutional Government. It is a
phenomenon inconsistent with the principle of the Rule of Law
and a universally accepted Code of Conduct expected of the
holder of a public office in a Constitutional democracy.
Cromwell declared that such people are “enemies to all good
governments”. The framers of the Constitution and the
Parliament too believed so. The makers of the Constitution
gave sufficient indication of that 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 to become or
continue to be a LEGISLATOR. It is that belief which
25 “behind every great fortune lies a great crime” - BALZAC
27
prompted the Parliament to make the prevention of corruption
laws.
33. The most crude process by which a LEGISLATOR or his
ASSOCIATES could accumulate assets is by resorting to
activities which constitute offences under the Prevention of
Corruption Act, 198826 (hereafter the PC Act). Gold is their
God!
Abnormal growth of assets of a LEGISLATOR or his
ASSOCIATES need not always be a consequence of such illegal
activity. It could be the result of activities which are improper,
i.e. activities which may or may not constitute offences either
under the PC Act or any other law but are inconsistent with
the basic constitutional obligations flowing from the nature of
the office of a LEGISLATOR. They are deputed by the people
to get grievances redressed. But they become the grievance.
26 Section 7 of the PC Act.
“Public servant taking gratification other than legal remuneration in respect of an official act.—
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to
obtain from any person, for himself or for any other person, any gratification whatever, other than legal
remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for
rendering or attempting to render any service or disservice to any person, with the Central Government or
any State Government or Parliament or the Legislature of any State or with any local authority,
corporation or Government company referred to in clause (c) of section 2, or with any public servant,
whether named or otherwise, shall be punishable with imprisonment which shall be not less than three
years but which may extend to seven years and shall also be liable to fine.”
28
(i) There are known cases of availing of huge amount of
loans for allegedly commercial purposes from public
financial institutions by LEGISLATORS or their
ASSOCIATES either directly or through bodies corporate
which are controlled by them; a notorious fact in a good
number of cases. Such loan accounts become nonperforming
assets 27 (NPAs) within the meaning of
SARFAESI ACT in the hands of the financial institutions
which advance loans. It is equally a widely prevalent
phenomenon that borrowers (LEGISLATORS or even
others) whose accounts have become NPAs are able to
secure fresh loans in huge amounts either from the very
same or other financial institutions.
(ii) Securing of contracts of high monetary value either from
Government (Central or State) or other bodies corporate
which are controlled by Government is another activity
which enables LEGISLATORS and their ASSOCIATES to
acquire huge assets. It is worth mentioning here that
27 Section 2(o) "non-performing asset" means an asset or account of a borrower, which has been classified
by a bank or financial institution as sub-standard, doubtful or loss asset,
(a) in case such bank or financial institution is administered or regulated by an authority or body
established, constituted or appointed by any law for the time being in force, in accordance with
the directions or guidelines relating to assets classifications issued by such authority or body;
(b) in any other case, in accordance with the directions or guidelines relating to assets
classifications issued by the Reserve Bank;"
29
Section 7(d)28 of the RP Act of 1951 initially provided that
any person who has a share or interest in a contract for
the supply of goods or for the execution of any works or
performance of any services either by himself or through
any person or body of persons in trust for him or for his
benefit etc. is disqualified. However, by amendment of
Act 58 of 1958, the said provision was dropped and
Section 9A 29 was introduced which enables the
ASSOCIATES of the LEGISLATORS either directly or
through a body corporate to acquire such contracts.
Abnormal increase in the personal assets of the
LEGISLATORS and their ASSOCIATES is required to be
examined in juxtaposition to the above mentioned activities.
Further, it is also necessary to examine whether such benefits
28 Section 7. Disqualification for membership of Parliament or of a State Legislature – A person shall
be disqualified for being chosen as, and for being, a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of the state –
(a) xxxxx xxxxxx xxxxxx xxxxxx
(b) xxxxx xxxxxx xxxxxx xxxxxx
(c) xxxxx xxxxxx xxxxxx xxxxxx
(d) If, whether, by himself or by any person or body of person in trust for him or for his benefit or on
his account, he has any share or interest in a contract for the supply of goods to, or for the
execution of any works or the performance of any services undertaken by the appropriate
Government.
(e) xxxxx xxxxxx xxxxxx xxxxxx
(f) xxxxx xxxxxx xxxxxx xxxxxx 29 Section 9A. Disqualification for Government contracts etc.- A person shall be disqualified if, and for
so long as, there subsists a contract entered into by him in the course of his trade or business with the
appropriate government for the supply of goods to, or for the execution of any works, undertaken by that
government.
30
were received by taking undue advantage of the office of the
LEGISLATOR.
34. The question is how to ensure compliance with the
constitutional goals enshrined in Articles 38 and 39 in the
context of the problem on hand.
POSSIBLE SOLUTIONS:
(1) making of laws which render such undue
accumulation of wealth an offence;
(2) disqualifying LEGISLATORS who have acquired
wealth through unconstitutional means, from
continuing as or seeking to get re-elected as
LEGISLATORS; and
(3) making it known to the electorate to enable them to
make a choice whether such LEGISLATORS should
be given a further opportunity.
Whatever be the best solution out of the abovementioned
three possibilities, it requires collection of data regarding the
financial status of the LEGISLATORS and their ASSOCIATES
and examining the same to ascertain whether there is an
impermissible accumulation of wealth in their hands.
31
OFFENCE:
35. Provisions already exist in the Prevention of Corruption
Act, 1988 (hereafter the PC Act) specifying various activities
enumerated therein to be offences. For example: Under
Section 13(1)(e)30 of the PC Act, it is misconduct for a public
servant to be in possession either personally or through some
other person, “of pecuniary resources or property disproportionate to
his known sources of income.” Under Section 13(2) 31 , such a
misconduct is an offence punishable with imprisonment for a
period up to 10 years and also liable to fine.
This Court has already held that a LEGISLATOR is a
public servant 32 . Section 8(1)(m) 33 of the RP Act of 1951
30 13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of
criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself
or for any other person any gratification other than legal remuneration as a motive or reward such as is
mentioned in section 7; or
xxxxxx xxxxx xxxxxx xxxxx xxxxxx xxxxxx
or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office,
been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or
property disproportionate to his known sources of income.
Explanation.—For the purposes of this section, “known sources of income” means income received from
any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules
or orders for the time being applicable to a public servant.
31 Section 13(2) - Any public servant who commits criminal misconduct shall be punishable with
imprisonment for a term which shall be not less than four years but which may extend to ten years and shall
also be liable to fine.
32 P. V. Narasimha Rao v. State, (1998) 4 SCC 626
“Para 85. Having considered the submissions of the learned counsel on the meaning of the expression
“public servant” contained in Section 2(c) of the 1988 Act, we are of the view that a Member of
Parliament is a public servant for the purpose of the 1988 Act.” 33 “Section 8. Disqualification on conviction for certain offences.—(1) A person convicted 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;
32
declares34 that a person convicted for an offence under the PC
Act, 1988 is disqualified35 both for being chosen or continuing
as a LEGISLATOR.
DISQUALIFICATION:
36. We now deal with the question of disqualifying
LEGISLATORS either from continuing as LEGISLATORS or
from getting re-elected to any legislative body on the ground
that they or their ASSOCIATES have acquired assets which
are disproportionate to their known sources of income.
37. We have already noted that under Section 8(1)(m) of the
RP Act of 1951, it is provided that persons convicted and
sentenced to imprisonment for not less than 6 months for
offences under the provisions of various enumerated offences
under Section 8 of the RP Act of 1951 are disqualified either
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified 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 that a LEGISLATOR
either by himself or through his ASSOCIATES acquired assets (during the incumbency as LEGISLATOR)
which are disproportionate to his known sources of the income. Initiation of investigation and prosecution
for establishing the occurrence of the offences under the PC Act and proof of the guilt are riddled with
procedural constraints and political obstacles and dis-prudential difficulties.
It becomes a more complicated and difficult task when the accused himself happens to be a law
maker/LEGISLATOR. The history of this country during the last 70 years speaks eloquently how
unsuccessful the State has been in bringing to book the LEGISLATORS with questionable financial
integrity. The reasons are many. Low level efficiency of the State machinery (both investigating and
prosecuting agencies) and the legal system, lack of political will are some of the known reasons. Criminal
jurisprudence gives a great deal of benefit of doubt to an accused person and expects the State 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 of either
House of Parliament or of the Legislative Assembly or Legislative Council of a State.”
33
for being chosen or continuing as a LEGISLATOR. The
petitioner seeks such a disqualification to be imposed even in
the absence of a conviction under the provisions of the PC Act.
38. Parliament has prescribed various disqualifications in
Chapter III 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 specified under each of those sections. Undue
accumulation of wealth (assets of the LEGISLATORS) is not
one of the grounds specified either under any of the
abovementioned provisions or under Articles 102 and 191 of
the Constitution which stipulate some of the disqualifications.
However, both the Articles36 stipulate that the Parliament may,
by or under any law, prescribe disqualifications other than
those specified thereunder.
39. The distinction between something done by a law and
done under a law fell for consideration of this court in several
cases commencing from Dr. Indramani Pyarelal Gupta &
36 Article 102. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament—
xxx xxx xxx xxx
(e) if he is so disqualified by or under any law made by Parliament.
Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or Legislative Council of a State—
xxx xxx xxx xxx
(e) if he is so disqualified by or under any law made by Parliament.
34
others vs. W.R. Natu & others, AIR 1963 SC 27437 and a
constitution bench of this Court held at para 15:
“……. The meaning of the words, “under the Act” is wellknown.
“By” an Act would mean by a provision directly
enacted in the statute in question and which is gatherable
from its express language or by necessary implication
therefrom. The words “under the Act” would, in that context
signify what is not directly to be found in the statute itself
but is conferred or imposed by virtue of powers enabling this
to be done; in other words, bye-laws made by a subordinate
law-making authority which is empowered to do so by the
parent Act. The distinction is thus between what is directly
done by the enactment and what is done indirectly by rulemaking
authorities which are vested with powers in that
behalf by the Act. ……….. That in such a sense bye-laws
would be subordinate legislation “under the Act” is clear
from the terms of Ss.11 and 12 themselves.”
We are of the opinion that the ratio of the judgment applies in
all force to the interpretation of Articles 102(1)(e) and 191(1)(e).
40. Manifold and undue accretion of assets of LEGISLATORS
or their ASSOCIATES by itself might be a good ground for
disqualifying a person either to be a LEGISLATOR or for
seeking to get re-elected as a LEGISLATOR. Statutes made by
the Parliament are silent in this regard. But Section 169(1)38
of the RP Act of 1951 authorises the central government to
make rules for carrying out the purposes of the Act. If the
nation believes that those who are elected to its legislative
37 See also Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority of India and Others, (2014) 3 SCC
222, para 90.
38 Section 169. Power to make rules.—(1) The Central Government may, after consulting the Election
Commission, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
35
bodies ought not to take undue advantage of their election to
the LEGISLATURE for accumulation of wealth by resorting to
means, which are inconsistent with the letter and spirit of the
Constitution and also the laws made by the legislature,
appropriate prescriptions are required to be made for carrying
out the purpose of the RP Act of 1951. The purpose of
prescribing disqualifications is to preserve the purity of the
electoral process. Purity of electoral process is fundamental to
the survival of a healthy democracy. We do not see any
prohibition either under the Constitution or the laws made by
the Parliament disabling or stipulating that the central
government should not make rules (in exercise of the powers
conferred by the Parliament under Section 169 of the RP Act of
1951 read with Articles 102(1)(e) and 191(1)(e) of the
Constitution) providing for such disqualification. On the other
hand, Parliament under Section 169 of the RP Act of 1951
authorised the Government of India to make rules for carrying
out the purposes of the Act.
41. The Conduct of Election Rules, 1961 is an example of
subordinate legislation; enacted by the Central Government
pursuant to the power given under Section 169(1) of the RP
36
Act of 1951.39 Section 169(2) authorizes the making of rules
for carrying out the purposes of the Act – ‘without prejudice to
the generality of the power to make Rules’. 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 no legislature
can ever comprehend all possible situations which are
required to be regulated by the statute.40
42. Logically, we see no difficulty in accepting the submission
of the petitioner in the light of the mandate of the directive
principles and the prescription of the Parliament under the PC
Act that such undue accretion of wealth is a culpable offence.
There is a need to make appropriate provision declaring that
the UNDUE ACCRETION OF ASSETS is a ground for
disqualifying a LEGISLATOR even without prosecuting the
LEGISLATOR for offences under the PC Act. It is well settled
that a given set of facts may in law give rise to both civil and
criminal consequences. For example; in the context of
employment under State, a given set of facts can give rise to a
39 The Central Government may, after consulting the Election Commission, by notification in the Official
Gazette, make rules for carrying out the purposes of this Act.
40 Para 133 of J.K. Industries Limited &Anr vs. Union of India., (2007) 13 SCC 673
It is well settled that, what is permitted by the concept of “delegation” is delegation of ancillary or
subordinate legislative functions or what is fictionally called as “power to full up the details the details”.
The judgments of this Court have laid down that the legislature may, after laying down the legislative
policy, confer discretion on administrative or executive agency like the Central Government to work out
details within the framework of the legislative policy laid down in the plenary enactment.
37
prosecution for an offence and also simultaneously form the
basis for disciplinary action under the relevant Rules
governing the service of an employee.
43. It is always open to the LEGISLATURE to declare that
any member thereof is unfit to continue as such. In Raja
Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3
SCC 184, this Court took note of the history of the
parliamentary privileges, scheme and text of the Constitution
and opined that the power of expulsion is part of the privileges
and immunities of the Parliament. It is relevant to notice that
under Article 105(3), “the powers, privileges and immunities of each
house of Parliament” may be “defined by Parliament by law”. This
court noticed and proceeded on the assumption41 that no such
law existed. Yet it was held by this Court42 that such power
was part of the privileges of the Legislature.
44. It therefore follows clearly and a fortiori that at least in
the context of expulsion of a member of the LEGISLATURE, by
a decision of that House, no statutory provision is required for
stipulating the grounds on which a member could be expelled
or the procedure which is required to be followed. Though
41 See paragraph 43 Per. Sabharwal, CJI. 42 See paragraph 318, Per. Sabharwal, CJI.
38
Article 105 and 194 authorises the LEGISLATURE to define
the “powers and privileges and immunities”, the non-exercise of that
power to legislate, does not detract the power of the
LEGISLATURE to expel a member on the ground that a
member resorted to some activity which does not meet the
approval of the House. A decision to expel a member would
certainly have the same effect as disqualifying a member on
the grounds specified under Articles 102 and 191. This Court
in Raja Ram Pal case highlighted the difference between
“expulsion” and “disqualification”. 43 It may not answer the
description of the expression disqualified as defined under the
RP Act of 1951 or the grounds mentioned under Article 102
and 191. The disqualification brought about by expulsion is
limited, of course, to the tenure of the member and does not
disqualify him from seeking to become a member again by
contesting an election in accordance with law.
45. The next question to be examined is whether it is
permissible for the respondents to make subordinate
legislation stipulating that UNDUE ACCRETION OF ASSETS
would render a LEGISLATOR disqualified within the meaning
43 Id. at paragraphs 144 and 145
39
of the expression under Section 7(b) of the RP Act of 1951 and
to establish a body to undertake the regular monitoring 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 any legislative prescription, in the light of the
Scheme and tenor of Articles 102(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 such a stipulation
by making appropriate Rules declaring that UNDUE
ACCRETION OF ASSETS would render a LEGISLATOR
“disqualified”. Further, it would be equally competent for the
Government of India to establish a permanent mechanism for
monitoring the financial affairs of the LEGISLATORS and their
ASSOCIATES for periodically ascertaining the relevant facts.
Because the establishment of such a permanent mechanism
would be a necessary incident of the authority to declare a
LEGISLATOR “disqualified”.
INFORMATION TO THE VOTER:
47. The information regarding the sources of income of the
CANDIDATES and their ASSOCIATES, would in our opinion,
40
certainly help the voter to make an informed choice of the
candidate to represent the constituency in the LEGISLATURE.
It is, therefore, a part of the fundamental right under Article
19(1)(a) as explained by this Court in ADR case.
It must be mentioned that the 1st respondent in its
counter affidavit stated:
“Para 6. That it is further stated that the Election
Commission of India’s proposal relating to amending of Form
26 was thoroughly examined and considered in Ministry of
Law and Justice and a final decision has been taken to
amend the Form 26 of 1961 Rules. As the issues involved
relate to policy matter and after due deliberations on the
subject matter a final policy decision was taken to amend
the Form 26.”
48. Collection of such data can be undertaken by any
governmental agency or even the Election Commission44. The
present writ petition seeks that State be compelled to make a
law authorizing the collection of data pertaining to the
financial affairs of the LEGISLATORS. The petitioner submits
that the first step in the collection of data should be to call
upon those who seek to get elected to a legislative body to
make a declaration of - (i) their assets and those of their
ASSOCIATES (which is already a requirement under Section
44 We must make it clear that nothing in law prevents a vigilant citizen from collecting such data for
initiating appropriate proceedings in accordance with law.
41
33 of the RP Act of 1951 etc.); and (ii) the sources of their
income.
49. The obligation to make the second of the abovementioned
two declarations arises as a corollary to the
fundamental right of the voter under Article 19(1)(a) to know
the relevant information with respect to the CANDIDATE, to
enable the voter to make an assessment and make an
appropriate choice of his representative in the Legislature. The
enforcement of such a fundamental right needs no statutory
sanction. This Court and the High Courts are expressly
authorized by the Constitution to give appropriate directions
to the State and its instrumentalities and other bodies for
enforcement of Fundamental Rights. On the other hand,
nobody has the fundamental right to be a LEGISLATOR or to
contest an election to become a LEGISLATOR. They are only
constitutional rights structured by various limitations
prescribed by the Constitution and statutes like the RP Act of
1951. The Constitution expressly permits the structuring of
those rights by the Parliament by or under the authority of
law by prescribing further qualifications or disqualifications.45
45 See Articles 84(c), 102(1)(e), 173(c) and 191(1)(e)
42
To contest an election for becoming a legislator, a CANDIDATE
does not require the consent of all the voters except the
appropriate number of proposers being electors of the
Constituency, 46 and compliance with other procedural
requirements stipulated under the RP Act of 1951 and the
rules made thereunder. But to get elected, every CANDIDATE
requires the approval of the ‘majority’ of the number of voters
of the Constituency choosing to exercise their right to vote.
Voters have a fundamental right to know the relevant
information about the CANDIDATES. For reasons discussed
Article 84. Qualification for membership of Parliament.— A person shall not be qualified to be chosen
to fill a seat in Parliament unless he—
xxxxx xxxxx xxxxx
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law
made by Parliament
Article 102. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,
and for being, a member of either House of Parliament—
xxxxx xxxxx xxxxx
(e) if he is so disqualified by or under any law made by Parliament.
Article 173. Qualification for membership of the State Legislature.— A person shall not be qualified to
be chosen to fill a seat in the Legislature of a State unless he—
xxxxx xxxxx xxxxx
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law
made by Parliament
Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,
and for being, a member of the Legislative Assembly or Legislative Council of a State—
xxxxx xxxxx xxxxx
(e) if he is so disqualified by or under any law made by Parliament. 46Section 33. Presentation of nomination paper and requirements for a valid nomination. —(1) On or
before the date appointed under clause (a) of section 30 each CANDIDATE shall, either in person or by his
proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to
the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination
paper completed in the prescribed form and signed by the CANDIDATE and by an elector of the
constituency as proposer :
Provided that a CANDIDATE not set up by a recognised political party, shall not be deemed to be duly
nominated for election form a constituency unless the nomination paper is subscribed by ten proposers
being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a
public holiday:
Provided also that in the case of a local authorities' constituency, graduates' constituency or 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 or ten such electors, whichever is less, as proposers.
43
earlier, the financial background in all its aspects, of the
CANDIDATE and his/her ASSOCIATES is relevant and critical
information. Therefore, a CANDIDATE’S constitutional right to
contest an election to the legislature should be subservient to
the voter’s fundamental right to know the relevant information
regarding the CANDIDATE; information which is critical to the
making of an informed and rational choice in this area.
50. No doubt, compelling a CANDIDATE to disclose the
relevant information, would to an extent be a legal burden on
the CANDIDATE’S constitutional right to contest an election.
The question, therefore, would be whether it requires a
statutory sanction to create such compulsion.
If we analyse the scheme of the Constitution, rights
falling under the Fundamental Rights chapter cannot be
abrogated or taken away except by authority of law. Law in
the context has always been held by this Court to require
statutory basis47. There are various other rights conferred by
the Constitution other than the fundamental rights. Whenever
it was thought fit that such rights should be curtailed, the text
47 State of Bihar v. Project Uchcha Vidya, Shiksha Sangh, (2006) 2 SCC 545, 574 paragraph 69; Bhuvan
Mohan Patnaik & Others v. State of Andhra Pradesh, (1975) 3 SCC 185, 189 paragraph 14
44
of the Constitution made a declaration to that effect and also
stipulated the manner in which such rights could be
controlled or regulated. Article 10248 is a limitation on the
constitutional right of the citizens to seek the membership of
the Parliament. It prescribes certain disqualifications for
being chosen as or for a being a Member of either House of the
Parliament. It further declares that apart from the enumerated
disqualifications, other disqualifications could be prescribed
by or under any law made by the Parliament. In other words,
Parliament could itself prescribe disqualifications or could
authorize some other body or authority to prescribe such
disqualifications. Similar is the structure of Article 84 with
respect to qualifications for membership of Parliament. We
have already recorded our opinion that a disqualification could
be prescribed by a Rule. Logically there cannot be any
objection for imposing the legal burden upon the
CANDIDATES to disclose the relevant information by RULES
(subordinate legislation) under the RP Act of 1951. Form 26
provides for various kinds of information to be disclosed by the
candidate. It cannot be said that the existing information
required to be disclosed under the Affidavit is exhaustive of all
48 Supra Note 35
45
the information a candidate needs to provide. Neither is the
information provided under Section 33A an exhaustive list.
This is because any embargo placed on the voters’ right to
know the relevant information to be disclosed by the candidate
is subject to scrutiny under the fundamental right of the voter
under Article 19(1)(a). Therefore, any limitation on information
to voter cannot be inferred. We are of the opinion that Form 26
is only indicative of the information which is required to
enable the voter to make an informed choice. And we see no
legal bar in Section 169(2) to fetter the Central Government’s
rule making power from making such information available.49
51. Under Section 33 50 of the RP Act of 1951, every
CANDIDATE is required to deliver to the returning officer “a
nomination 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 51
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, the function of sub-section (2) is merely an
illustrative one; the rule-making power is conferred by sub-section (1), and ‘the rules’ which are referred to
in the opening sentence of sub-section (2) are the rules which are authorized by, and made under, subsection
(1), as, indeed, is expressly stated by the words ‘without prejudice to the generality of the
powers conferred by sub-section (1)”; This statement of law was reiterated 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; BSNL Vs. TRAI (2014) 3 SCC para. 90; Afzal Ullah v. State of UP, AIR
1964 SC 264
50 Supra Note. 46 51 It, inter alia, authorizes the making of rules pertaining to the form of affidavit under sub section (3) of
Section 33A. (Inserted by Act 72 of 2002, Sec. 6 (w.r.e.f 24-8-2002)
46
authorises the Government of India by notification in the
Official Gazette to make rules for carrying out the purposes of
the Act. Therefore, the contents of the nomination form could
be determined by the Rules.
52. We shall now examine each one of the prayers in the writ
petition and the feasibility of granting any relief thereon in the
light of our above conclusions.
53. At the outset, we must make it clear that prayers 1(2)52
and 353 seek directions to the respondents for amendment of
the provisions of the RP Act of 1951.
Amendment of the RP Act of 1951 is a matter exclusively
within the domain of the Parliament. It is well settled that no
court could compel and no writ could be issued to compel any
legislative body to make a law. It must be left to the wisdom of
the legislature. Prayers 1(2) and 3, insofar as they seek
52 1. issue a writ, order or direction, in the nature of mandamus –
xxx xxx xxx
(2) to respondent no.1 to consider suitable amendment in the Representation of the People Act
1951 to provide for rejection of nomination papers of the candidates and disqualification of
MPs/MLAs/MLCs deliberately furnishing wrong information about their assets in the affidavit in
Form 26 at the time of filing of the nomination;
53 3. issue a writ, order or direction in the nature of mandamus to the respondents to consider amending
Section 9-A of the Act to include contracts with appropriate Government and any public company by the
Hindu undivided family/trust/partnership firm(s)/private company (companies) in which the candidate
and his spouse and dependents have a share or interest.
47
directions in the nature of mandamus to consider amendment
of the RP Act of 1951 cannot be granted.
54. In prayer 1(1) 54 , the petitioner seeks a direction to
respondent Nos.1 and 2 to make changes in Form 26
prescribed under Rule 4A of the RULES, which would provide
for calling upon the CANDIDATES to declare their sources of
income along with the sources of the income of their respective
ASSOCIATES.
The prescription such as the one sought by the petitioner
regarding the disclosure of the sources of income of the
CANDIDATE and his/her ASSOCIATES in a nomination could
certainly be made by making appropriate Rules. The next
question is whether the respondents could be compelled to
make appropriate Rules for the above-mentioned purpose.
The Government of India, functioning as a statutory body for
prescribing rules under the RP Act of 1951, is amenable to
writ jurisdiction under Article 32 for the enforcement of the
fundamental right under Article 19(1)(a) of the voter to know
the relevant information with respect to the candidates.
54 “1. Issue a writ, order or direction, in the nature of mandamus -
(1) to respondents no.1 and 2 to make necessary changes in the Form 26 prescribed under Rule 4A
of the Conduct of Election Rules, 1961 keeping in view the suggestion in para 38 of the WP;”
48
Respondent Nos.1 and 2 are constitutionally obliged to
implement the directions given by this Court in exercise of its
jurisdiction under the Constitution. It may also be noticed that
Section 169(1) of the RP Act of 1951 obligates the Government
of India to make Rules after consulting the Election
Commission. In the light of the conclusions recorded in paras
42 to 45, we are also of the opinion the information regarding
the sources of income of the LEGISLATORS and their
ASSOCIATES and CANDIDATES is relevant and
LEGISLATORS and CANDIDATES could be compelled even by
subordinate legislation. We see no reason for declining prayer
1(1).
55. In the light of the law declared by this Court in ADR case
and PUCL case, we do not see any legal or normative
impediment nor has any tenable legal objection been raised
before us by any one of the respondents, for issuance of the
direction relating to the changes in FORM 26 (declaration by
the CANDIDATES). On the other hand, the 2nd respondent in
his counter stated:
“7. It is submitted that so far as the first prayer in the
captioned writ petition is concerned, the information about
source(s) of income of candidates, their spouses and
49
dependants will be a step in the direction of enhancing
transparency and should form part of the declaration in
Col.(9) of Form 26. The Answering Respondent Commission
vide its letter no.3/4/ECI/LET/FUNC/JUD/SDR/Vol.I/2016
dated 7.09.2016 has already requested the Ministry of Law
and Justice to consider the proposed amendments made 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
granted and is accordingly granted. We direct that Rule 4A of
the RULES and Form 26 appended to the RULES shall be
suitably amended, requiring CANDIDATES and their
ASSOCIATES to declare their sources of income.
56. We shall now deal with prayer 1(3) which seeks three
distinct reliefs. In our opinion, it would be more logical to deal
with the relief sought in prayer 1(3)(ii)55 first.
In prayer 1(3)(ii), the petitioner seeks a direction for
establishment of a permanent mechanism to inquire/
investigate into the disproportionate increase in the assets of
LEGISLATORS during their tenure as LEGISLATORS.
The 1st respondent is silent in its counter in this regard
except making an omnibus claim and a general stand that all
55 1. issue a writ, order or direction, in the nature of mandamus -
xxx xxx xxx
(3) to respondents no.3 to 5 toxxx
xxx xxx
(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,
50
the prayers are in the realm of policy and within the exclusive
domain of the Parliament.
57. We have already taken note of (i) the fact that increase in
the assets of the LEGISLATORS and/or their ASSOCIATES
disproportionate to the known sources of their respective
incomes is, by compelling inference, a constitutionally
impermissible conduct and may eventually constitute offences
punishable under the PC Act and (ii) ‘undue influence’ within
the meaning of Section 123 of the RP Act of 1951. In order to
effectuate the constitutional and legal obligations of
LEGISLATORS and their ASSOCIATES, their assets and
sources of income are required to be continuously monitored
to maintain the purity of the electoral process and integrity of
the democratic structure of this country. Justice Louis D.
Brandeis, perceptively observed: “the most important political
office is that of the private citizen.”
58. The citizen, the ultimate repository of sovereignty in a
democracy must have access to all information that enables
critical audit of the performance of the State, its
instrumentalities and their incumbent or aspiring public
officials. It is only through access to such information that the
51
citizen is enabled/empowered to make rational choices as
regards those holding or aspiring to hold public offices, of the
State.
59. The State owes a constitutional obligation to the people of
the country to ensure that there is no concentration of wealth
to the common detriment and to the debilitation of democracy.
Therefore, 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 of LEGISLATORS and their respective ASSOCIATES and
examine in every case whether there is disproportionate
increase in the assets and recommend action in appropriate
cases either to prosecute the LEGISLATOR and/or
LEGISLATOR’S respective ASSOCIATES or place the
information before the appropriate legislature to consider the
eligibility of such LEGISLATORS to continue to be members of
the concerned House of the legislature.
60. Further, data so collected by the said mechanism, along
with the analysis and recommendation, if any, as noted above
should be placed in the public domain to enable the voters of
52
such LEGISLATOR to take an informed and appropriate
decision, if such LEGISLATOR chooses to contest any election
for any legislative body in future.
61. For the reasons mentioned above, we allow the prayer
1(3)(ii) of the 1st respondent.
62. In prayer 1(3)(i)56, the petitioner prays that an inquiry/
investigation be conducted into the “disproportionate increase
in the assets” of the LEGISLATORS named in Annexure P-6 to
the writ petition.
We are of the opinion that an inquiry/investigation such
as the one sought for by the petitioner with reference to the
named LEGISLATORS would amount to selective scrutiny of
the matter in the absence of any permanent mechanism
regularly monitoring the growth of the assets of all the
LEGISLATORS and/or their ASSOCIATES as a class. Such a
selective investigation could lead to political witch-hunting.
We, therefore, decline this relief, at this stage.
56 1. issue a writ, order or direction, in the nature of mandamus -
xxx xxx xxx
(3) to respondents no.3 to 5 to(i)
conduct inquiry/investigation into disproportionate increase in the assets of MPs/MLAs/MLCs
included in list in Annexure P6 to the WP,
53
63. We shall now deal with prayer no.2 57 which seeks a
declaration that non-disclosure of assets and sources of
income would amount to ‘undue influence’ – a corrupt practice
under Section 123(2) of the RP Act of 1951. In this behalf,
heavy reliance is placed by the petitioner on a judgment of this
Court in Krishnamoorthy v. Sivakumar & Others, (2015) 3
SCC 467. It was a case arising under the Tamil Nadu
Panchayats Act, 1994. A notification was issued by the State
Election Commission stipulating that every candidate at an
election to any Panchayat is required to disclose information
inter alia whether the candidate was accused in any pending
criminal case of any offence punishable with imprisonment for
two years or more and in which charges have been framed or
cognizance has been taken by a court of law. In an election
petition, it was alleged that there were certain criminal cases
pending falling in the abovementioned categories but the said
information was not disclosed by the returned candidate at the
time of filing his nomination. One of the questions before this
Court was whether such non-disclosure amounted to ‘undue
influence’ – a corrupt practice under the Panchayats Act. It
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 under Section 100(1)(b) of the RP Act of 1951 in terms of the
judgment reported in AIR 2015 SC 1921.”
54
may be mentioned that the Panchayats Act simply adopted the
definition of a corrupt practice as contained in Section 123 of
the RP Act of 1951.
On an elaborate consideration of various aspects of the
matter, this Court held as follows:
91. … While filing the nomination form, if the requisite
information, as has been highlighted by us, relating to
criminal antecedents, is not given, indubitably, there is an
attempt to suppress, effort to misguide and keep the people
in dark. This attempt undeniably and undisputedly is undue
influence and, therefore, amounts to corrupt practice. …”
64. For the very same logic as adopted by this Court in
Krishnamoorthy, we are also of the opinion that the nondisclosure
of assets and sources of income of the
CANDIDATES and their ASSOCIATES would constitute a
corrupt practice falling under heading ‘undue influence’ as
defined under Section 123(2) of the RP Act of 1951. We,
therefore, allow prayer No.2.
65. Coming to Prayer No. 4, the petitioner is only seeking
information regarding the contracts, if any with the
appropriate government either by the candidate or his/her
spouse and dependants.
55
“..information about the contracts with appropriate
Government and any public company by the candidate,
his/her spouse and dependents directly or by Hindu
undivided family/trust/partnership firm(s)/private company
(companies) in which the candidate and his spouse and
dependents have a share or interest shall also be provided in
the affidavit in Form 26 prescribed under the Rules.”
66. In the light of the foregoing discussion, the information
such as the one required under the above-mentioned prayer is
certainly relevant information in the context of disqualification
on the ground of undue accretion of assets, therefore, we see
no objection for granting the relief as prayed for.
67. We are left with the reliefs sought by way of prayer No. 5
in I.A. No. 8 of 2016. The petitioner seeks Form 26 be
amended to provide certain further information. An analysis
of the information sought (as can be seen from the prayer)
indicates that all the information is in the context of
statutorily prescribed disqualifications under the RP Act of
1951. In our opinion, such information would certainly be
relevant and necessary for a voter to make an appropriate
choice at the time of the election whether to vote or not in
favour of a particular candidate. Therefore, all the six prayers
made in I.A. No. 8 are allowed.
56
68. The writ petition is allowed as indicated above, but, in
the circumstances, without any costs.
….....................................J.
(J. CHELAMESWAR)
….....................................J.
(S. ABDUL NAZEER)
New Delhi
February 16, 2018
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.784 OF 2015
LOK PRAHARI,
THROUGH ITS GENERAL SECRETARY S.N. SHUKLA ... Petitioner
Versus
UNION OF INDIA & OTHERS ... Respondents
J U D G M E N T
Chelameswar, J.
1. The petitioner is a registered society under the Societies
Registration Act. It is stated in the petition that most of 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 concern for the democracy of this
country, in our opinion, is beyond any doubt.
2
2. A clean and fair electoral process is a sine qua non for
any democracy. Rights and obligations associated with the
electoral process, engaged the attention of democratic civil
societies and their legislative bodies from time to time.
Regulation of the right to vote or the right to contest elections
and matters incidental thereto felt necessary. Democratic
societies experiment with various modules of electoral
processes in response to the felt necessities of the times.
3. When our Constitution was adopted, the framers of the
Constitution thought that some of the basic norms regarding
the electoral process, i.e. rights of voting or the right to contest
elections to various bodies established by the Constitution are
required to be spelt out in the Constitution itself. Our
Constitution, as originally enacted1, provided for elections to
the offices of President, Vice President, membership of the
Parliament, consisting two houses, the ‘Lok Sabha’ and the
‘Rajya Sabha’; and the membership of the legislature of the
various States, some of them unicameral and some bicameral.
1
Local bodies – Part IX of the Constitution which contains with provisions dealing with local bodies
including elections bodies came to be introduced by the Constitution (Seventy-third Amendment) Act, 1992.
3
Under Article 3242 an Election Commission was established
for the overall superintendence and control of such elections.
4. With reference to elections to each of the abovementioned
bodies or offices, the Constitution stipulates certain basic
norms, with respect to right to vote, the right to contest and
the limitations on such rights. Such norms vary with
reference to each of these offices or bodies. Citizenship of the
country is a default condition3 either for voting or contesting
an election to any one of the abovementioned bodies.
2 Article 324. Superintendence, direction and control of elections to be vested in an Election
Commission.- (1) The superintendence, direction and control of the preparation of the electoral rolls for,
and the conduct of, all elections to Parliament and to 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 in this Constitution as the Election Commission.
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other
Election Commissioners, if any, as the President may from time to time fix and the appointment of the
Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law
made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as
the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State,
and before the first general election and thereafter before each biennial election to the Legislative Council
of each State having such Council, the President may also appoint after consultation with the Election
Commission such Regional Commissioners as he may consider necessary to assist the Election
Commission in 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 service and tenure of office
of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule
determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner
and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election
Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed
from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make
available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the
discharge of the functions conferred on the Election Commission by clause (1).
3 Article 58. Qualifications for election as President.- (1) No person shall be eligible 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
4
5. Article 3264 stipulates that the elections to the House of
the People and the legislative assemblies of the States shall be
on the basis of adult suffrage i.e. every person who is a citizen
of India and who is not less than 18 years of age on a date
specified by law shall be entitled to be registered as a voter at
any such election, with a further stipulation that such a right
is subject to disqualifications prescribed under the
Constitution, or by or under any law made by the appropriate
legislature. Article 326 is also specific about the grounds on
which a disqualification could be prescribed by the
appropriate legislature. They are non-residence, unsoundness
of mind and crime or corrupt or illegal practices. The right to
vote at an election to the Rajya Sabha and the Legislative
Council of a State are subject to certain further qualifications.
(2) A person shall not be eligible for election as President if he holds any office of profit under the
or the Government of any State or under any local or other authority subject to the control of any of the said
Governments.
Explanation For the purposes of this article, a person shall not be deemed to hold any office of profit
by reason only that he is the President or Vice President of the Union or the 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 be qualified to be chosen to
fill a seat in Parliament unless he— (a) is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or affirmation according to the form set out
for the purpose in the Third Schedule;
Article 173. Qualification for membership of the State Legislature. - A person shall 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 that behalf by the Election Commission an oath or affirmation
according to the form set out for the purpose in the Third Schedule;
4 Article 326. Elections to the House of the People and to the Legislative Assemblies of States to be on
the basis of adult suffrage- The elections to the House of the People and to the Legislative Assembly of
every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and
who is not less than 2[eighteen years] of age on such date as may be fixed in that behalf by or under any
law made by the appropriate Legislature and is not otherwise disqualified under this 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 to be registered as a voter at any such election.
5
So also in the case of the offices of the President and VicePresident.
6. Every person, who is entitled to vote at an election to the
membership of the Parliament, is not automatically entitled to
become a member of the Parliament. Article 84(b)5 stipulates
any person seeking to become a member of House of People
(Lok Sabha) must be not less than 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 similar minimum
age requirements for membership of the Legislative Assemblies
and the Legislative Councils. Whereas, for the Presidency and
Vice-Presidency, the minimum age requirement of 35 years is
prescribed under Article 58(1)(b)7 and 66(3)(b)8.
7. Constitution also prescribes certain disqualifications for
contesting any election to any of the abovementioned bodies.
5 Article 84. Qualification for membership of Parliament- A person shall not be qualified 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 person shall 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 years of age and, in the
case of a seat in the Legislative Council, not less than thirty years of age;
7 Article 58. Qualifications for election as President. (1) No person shall be eligible for 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 election as Vice-President
unless he—
(b) has completed the age of thirty-five years;
6
Under Article 102, a person is disqualified not only for being
chosen but also for continuing as a member of either House of
Parliament on various grounds.
“Article 102. Disqualifications for membership
(1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament(a)
if he holds any office of profit under the Government of
India 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 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 foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by
Parliament.
(2) A person shall be disqualified for being a member of
either House of Parliament if he is so disqualified under the
Tenth Schedule.”
8. Article 191 9 stipulates similar disqualifications for the
membership of the State Legislatures. Article 58(1)(c)10 and
9 Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,
and for being, a member of the Legislative Assembly or Legislative Council of a State—
(a) if he holds any office of profit under the Government of India or the Government of any State specified
in the First Schedule, other than an office declared by the Legislature of 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 foreign State, or is under
any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of
a State if he is so disqualified under the Tenth Schedule.
7
Article 66(3)(c)11 of the Constitution stipulates in the context of
President and Vice President that no person shall be eligible to
those offices unless a person is qualified for election as a
member of the House of the People and the Council of States
respectively. By a necessary implication, the various
qualifications and disqualifications stipulated under the
Constitution for the membership of those two houses also
become the qualifications and disqualifications for the offices
of President and Vice-President apart from the other
qualifications and disqualifications stipulated under the
Constitution.
9. Articles 102(e) and 191(e) authorise the Parliament to
make laws by or under which other disqualifications can be
prescribed to contest in an election to the Parliament or to the
State Legislature. Similarly, Articles 84(c) and 173(c) authorise
the Parliament to prescribe other qualifications (by or under
law) for securing the membership of the Parliament or the
Legislature of the State respectively.
10 Article 58. Qualifications for election as President. (1) No person shall be eligible 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 for election as Vice-President
unless he(c)
is qualified for election as a member of the Council of States
8
10. Entry 72 12 of List I of the Seventh Schedule of the
Constitution of India and Entry 3713 of List II are the fields of
legislative authority which enable the Parliament and the State
Legislatures respectively to make laws indicated in the various
provisions mentioned above and other relevant provisions of
the Constitution such as Article 327.
11. In exercise of such power, Parliament made various
enactments regulating various aspects of the electoral process
to the various offices and bodies mentioned earlier. For the
present, we are only concerned with two enactments. The
Representation of the People Acts, 1950 and 1951 (hereafter
RP Act of 1950 or RP Act of 1951) which contain provisions
which elaborately deal with the electoral process to the
Parliament and the State Legislatures. It is sufficient for the
purpose of the present case to take note of the fact that RP Act
of 1951 contains various provisions in Chapter III of Part II
stipulating the disqualifications for membership of Parliament
and State Legislatures. They are Sections 8, 8A, 9, 9A, 10 and
10A. Chapter IV of Part II contains a provision stipulating a
12 Entry 72. Elections to Parliament, to the Legislatures of States and to the offices of President and VicePresident;
the Election Commission.
13 Entry 37. Elections to the Legislature of the State subject to the provisions of any law made by
Parliament
9
disqualification for voting, obviously, referable to the authority
of Parliament under Article 326.
12. The expression ‘disqualified’ is defined under Section 7(b)
of the RP Act of 1951 as follows:
“Section 7. Definitions. – In this Chapter, -
xxx xxx xxx xxx
(b) ‘disqualified’ means disqualified for being chosen as, and
for being, a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of a State under
the provisions of this chapter, and on no other ground.”
13. Section 8 deals with the disqualifications which follow as
a consequence of conviction and imposition of the sentence of
imprisonment of a person for the various offences specified
thereunder. The period of disqualification under each of the
sub-sections, however, is stipulated to be six years since the
release of the convict from prison.
14. Section 8A declares that any person found guilty of a
corrupt practice by a High Court trying an election petition
shall be disqualified for a period not exceeding six years as
may be determined by the President of India. Section 123 of
the RP Act of 1951 defines corrupt practices. Ten corrupt
practices are enumerated therein. By definition each one of
them is capable of being committed only either by a
10
“candidate” 14 at an election or the “election agent” 15 of a
candidate or any other person with the consent of either the
candidate or the election agent of a candidate.
15. Section 9 disqualifies a person who having held an office
under the Government of India or under the Government of
any State, was dismissed for corruption or for disloyalty to the
State. This disqualification operates for five years from date of
such dismissal. Section 9A stipulates that a person shall be
disqualified to contest elections either to the Parliament or to
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 nominated as 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 People Act, 1951
stipulates:
“Election Agents.—A candidate at an election may appoint in the prescribed manner any one
person other than himself to be his election agent and when any such appointment is made, notice
of the appointment shall be given in the prescribed manner to the returning officer.”
15 Samant N. Balkrishna & Another v. George Fernandez & Others, (1969) 3 SCC 238
Para 25. Pausing here, we may view a little more closely the provisions bearing upon 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 the corrupt practices are viewed separately according as to who commits
them. The first class consists of corrupt practices committed by the candidate or his election agent or any
other person with the consent of the candidate or his election agent. These, if established, avoid the
election without any further condition being fulfilled. Then there is the corrupt practice committed by an
agent other than an election agent. Here an additional fact has to be proved that the result of the election
was materially affected. We may attempt to put the same matter in easily understandable language. The
petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with
the consent of the candidate or his election agent, in which case he need not establish what the result of
the election would have been without the corrupt practice. The expression “Any other person” in this part
will include an agent other than an election agent. This is clear from a special provision later in the
section about an agent other than an election agent. The law then is this: If the petitioner does not prove a
corrupt practice by the candidate or his election agent or another person with the consent of the returned
candidate or his election agent but relies on a corrupt agent, he must additionally prove how the corrupt
practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt
practice on the part of the candidate or his election agent he must face this additional burden. The
definition of agent in this context is to be taken from Section 123 (Explanation) where it is provided that
an agent “includes an election agent, a polling agent and any person who is held to have acted as an agent
in connection with the election with the consent of the candidate.” In this explanation the mention of
“an election agent” would appear to be unnecessary because an election agent is the alter ego of the
candidate in the scheme of the Act and his acts are the acts of the candidate, consent or no consent
on the part of the candidate.
11
the State Legislature if “there subsists a contract entered into by
him” with the appropriate Government either for the supply of
goods or for execution of any work undertaken by the
Government. The expression “appropriate Government” is defined
under Section 7(a)16.
16. Chapter VIII of Part V of the RP Act of 1951 contains
provisions dealing with ‘election expenses’. Section 77 mandates
that every candidate in an election shall keep a separate and
correct account of all expenditure incurred by such candidate
either directly or through his election agents. Such details
shall pertain to the expenditure incurred between the date of
nomination of the candidate and the declaration of the election
result. Section 78 mandates that every contesting candidate
shall lodge with the district election officer a copy of the
account maintained by him as required under Section 77 of
the RP Act of 1951. Section 10A stipulates that the failure to
comply with the mandate of Section 78 renders the defaulters
disqualified.
16 Section 7(a). “appropriate Government” means in relation to any disqualification for being chosen as or
for being a member of either House of Parliament, the Central Government, and in relation to any
disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative
Council of a State, the State Government;
12
17. Section 123(6) of the RP Act of 1951 declares “the incurring
or authorizing of expenditure in contravention of section 77” to be a
corrupt practice.
18. Electoral process is the foundation of all democratic
forms of Government. The framers of the Constitution were
aware of the fact that no election process can be infallible nor
can any election be absolutely pure. 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
or either House of the Legislature of a State shall be called in
question except by an election petition presented to such
authority and in such manner as may be provided for by or
under any law made by the appropriate Legislature.”
While the Article contemplates resolution of the electoral
disputes by election petitions, it prohibits the examination of
such disputes before conclusion of the election, obviously to
ensure that the electoral process is not unduly hampered
while it is in progress; essentially a balance between order and
chaos.
13
20. Pursuant to the command of Article 329(b), provisions are
made in Part VI of the RP Act of 1951 which deal with disputes
regarding elections. Section 10017 stipulates various grounds
on which an election of a returned candidate shall be declared
to be void. Such a declaration follows automatically on the
proof of the facts constituting any one of the grounds
mentioned in Section 100(1)(a), (b) and (c). One of the grounds
is that if the High Court comes to the conclusion that the
returned candidate has committed a corrupt practice either
directly or through his ‘election agents’18.
17 Section 100. Grounds for declaring election to be void.— (1) Subject to the provisions 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 was disqualified, to be chosen
to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of
1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any
other person with the consent of a returned candidate or his election agent; or
(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 been materially
affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other
than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is
void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or
orders made under this Act, the High Court shall declare the election of the returned candidate to be
void, If in the opinion of the High Court, a returned candidate has been guilty by an agent other
than his election agent, of any corrupt practice but the High Court is satisfied—
(a) that no such corrupt practice was committed at the election by the candidate or his election
agent, and every such corrupt practice was committed contrary to the orders, and without the
consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the
commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the
candidate or any of his agents, then the High Court may decide that the election of the
returned candidate is not void.” 18 Section 100(1)(b) of the RP Act of 1951
14
21. In so far as the ground specified in sub-section 1(d),
election of a returned candidate can be declared to be void only
if it is established that (i) any one of the events specified
therein did occur and (ii) such an event materially affected the
result of the election insofar as it concerns the returned
candidate.
22. The experience of the first 50 years of the functioning of
democracy in this country disclosed some undesirable trends
that have crept into its working. Various bodies such as the
Law Commission of India and a Committee popularly known
as the Vohra Committee19 constituted by the Government of
19 See: Union of India v. Association for Democratic Reforms and Another, (2002) 5
SCC 294
Para 2 … It is pointed out that the Law Commission has made recommendation for debarring a
candidate from contesting an election if charges have been framed against him by a court in respect of
certain offences and necessity for a candidate seeking to contest election to furnish details regarding
criminal cases, if any, pending against him. It has also suggested that true and correct statement of assets
owned by the candidate, his/her spouse and dependent relations should also be disclosed. The petitioner
has also referred para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of
Home Affairs, which reads as follows:
“6.2. Like the Director CBI, DIB has also stated that there has been a rapid spread and growth of
criminal gangs, armed senas, drug mafias, smuggling gangs, drug peddlers and economic lobbies in the
country which have, over the years, developed an extensive network of contacts with the
bureaucrats/government functionaries at the local levels, politicians, media persons and strategically
located individuals in the non-State sector. Some of these syndicates also have international linkages,
including the foreign intelligence agencies. In this context DIB has given the following examples:
(i) In certain States like Bihar, Haryana and U.P., these gangs enjoy the patronage of locallevel
politicians, cutting across party lines and the protection of governmental functionaries. Some
political leaders become the leaders of these gangs, armed senas and over the years get themselves
elected to local bodies, State Assemblies and the national Parliament. Resultantly, such elements
have acquired considerable political clout seriously jeopardising the smooth functioning of the
administration and the safety of life and property of the common man causing a sense of despair
and alienation among the people.
(ii) The big smuggling syndicates having international linkages have spread into and infected
the various economic and financial activities, including hawala transactions, circulation of black
money and operations of a vicious parallel economy causing serious damage to the economic fibre
15
India etc. pointed out various shortcomings in the working of
the democracy and the need to address those concerns.
23. This Court in Union of India v. Association for
Democratic Reforms & Another, (2002) 5 SCC 294,
hereafter referred to as “ADR case” opined that “voter speaks
out or expresses by casting vote” and such a speech is part of the
fundamental right under Article 19(1)(a). This Court after
taking into consideration various aspects of the matter
including the above-mentioned Reports and other materials,
held that for the effective exercise of his fundamental right, the
voter is entitled to have all relevant information about the
candidates at an election. This Court identified some of the
important aspects of such information. They are (i)
candidate’s criminal antecedents (if any), (ii) assets and
liabilities, (iii) educational qualifications. This Court also
recorded that a Parliamentary Committee headed by Shri
Indrajit Gupta submitted a Report in 1998 on the question of
State funding of elections, emphasizing the need of immediate
overhauling of the electoral process.
of the country. These syndicates have acquired substantial financial and muscle power and social
respectability and have successfully corrupted the government machinery at all levels and yield
enough influence to make the task of investigating and prosecuting agencies extremely difficult;
even the members of the judicial system have not escaped the embrace of the mafia.”
16
This Court opined that since the law made by Parliament
did not make appropriate provisions compelling candidates at
an election, either to the Parliament or the legislative bodies of
the State, to disclose information regarding the abovementioned
factors, Election Commission in exercise of its
power under Article 324 of the Constitution of India is
required to call upon the candidates to furnish the necessary
information.
This Court directed disclosure of various facts including
information regarding the assets and liabilities of the
candidates at an election and their respective spouses and
dependents (collectively hereafter referred to for the sake of
convenience as ASSOCIATES):
“48. The Election Commission is directed to call for
information on affidavit by issuing necessary order in exercise
of its power under Article 324 of the Constitution of India from
each candidate seeking election to Parliament or a State
Legislature as a necessary part of his nomination paper,
furnishing therein, information on the following aspects in
relation to his/her candidature:
(1) Whether the candidate is
convicted/acquitted/discharged of any criminal offence
in the past – if any, whether he is punished with
imprisonment or fine.
(2) Prior to six months of filing of nomination, whether
the candidate is accused in any pending case, of any
offence punishable with imprisonment for two years or
more, and in which charge is framed or cognizance is
taken by the court of law. If so, the details thereof.
17
(3) The assets (immovable, movable, bank balance, etc.)
of a candidate and of his/her spouse and that of
dependants.
(4) Liabilities, if any, particularly whether there are any
overdues of any public financial institution or
government dues.
(5) The educational qualifications of the candidate.”
24. Subsequent20 to the said judgment, Parliament chose to
amend the RP Act of 1951 by introducing Section 33A.
Parliament provided for the disclosure of certain limited
information regarding criminal antecedents of the candidates
at an election, but not of all the information as directed by this
Court (in para 48) of the abovementioned judgment.
On the other hand, Parliament made a further
declaration under Section 33B.
“33B Candidate to furnish information only under the
Act and the rules —Notwithstanding anything contained in
any judgment, decree or order of any court or any direction,
order or any other instruction issued by the Election
Commission, no candidate shall be liable to disclose or
furnish any such information, in respect of his election,
which is not required to be disclosed or furnished under this
Act or the rules made thereunder.”
In other words, Parliament declared that other
information required to be declared by the candidate by virtue
of the directions issued in Union of India v. Association for
20 Judgment is dated 02.05.2002 and the Amendment introducing Section 33A is dated 28.12.2002 (By The
Representation of the People (Third Amendment) Act, 1951 (Act No.72 of 2002)
18
Democratic Reforms & Another, (2002) 5 SCC 294 need not
be given.
25. The constitutionality of the said provision fell for the
consideration 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 to be beyond the legislative
competence of the Parliament. This Court recorded 21 that
Section 33A fails to ensure complete compliance with the
directions issued by this Court in ADR case.
26. Be that as it may, Section 33A mandates that a
candidate is also required to deliver to the returning officer at
the time of the filing of nomination an affidavit sworn by the
candidate in the prescribed form22. As a corollary to the said
mandate, Rule 4A23 was inserted in the Conduct of Election
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 certain
information 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 to the returning officer
the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the
candidate in a prescribed form very fine the information specified in sub-section (1).
23 Rule 4A. Form of affidavit to be filed at the time of delivering nomination paper.—The candidate or
his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination
paper under subsection (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate
before a Magistrate of the first class or a Notary in Form 26.
19
Rules, 1961 (hereafter referred to as the RULES) stipulating
that an affidavit in the Form No.26 is required to be filed. The
form, as originally prescribed under Rule 4A w.e.f. 3.9.2002,
stood substituted w.e.f. 1.8.2012. The form, inter alia, requires
information regarding the Permanent Account Numbers (PAN)
given by the Income Tax authorities to the CANDIDATE. It
also requires details of the assets (both movable and
immovable) of the ASSOCIATES. The other details required to
be given in the affidavit may not be relevant for the purpose of
the present case.
27. The petitioner believes that certain further steps are
required to be taken for improving the electoral system in
order to strengthen democracy. According to the petitioner,
the assets of some of the members of the Parliament and the
State legislatures (hereafter referred to as “LEGISLATORS”)
and their ASSOCIATES grew disproportionately to their known
sources of income (hereafter referred to as UNDUE
ACCRETION OF ASSETS). The petitioner made representations
to bodies like the Central Board of Direct Taxes and the
Election Commission of India requesting them to examine the
matter and take appropriate remedial measures. It appears
20
that the petitioner annexed a (sample) list of certain
LEGISLATORS whose assets increased more than 5 times after
they got elected for the first time to the concerned legislative
bodies. The petitioner believes that there is a need to
periodically examine the sources of income of the
LEGISLATORS and their ASSOCIATES to ascertain whether
there is an UNDUE ACCRETION OF ASSETS. In the
representation to the Chairperson of CBDT dated 30 June
2015, the petitioner stated, inter alia,
“... As a result, the wealth of politicians has been growing by
leaps and bounds at the expense of “We the People”.
Evidently, no improvement in system and governance is
possible unless the role of money power in winning elections
is curbed and the public representatives who misuse their
position for amassing wealth are brought to book.
… A list of re-elected MPs and MLAs whose assets are
increased more than five times (500%) after the
previous election, provided by the ADR, is annexed
herewith. Detailed information about the total income
shown in the last Income Tax Return of these
MPs/MLAs and their spouses and dependents is
available in the affidavit in Form 26 filled with the
nomination paper at the time of last election. These
affidavits are available on the websites of the Election
Commission of India as well as Chief Electoral Officers
of the States. All that is required to be seen is as to
whether the increase in assets is proportionate to the
increase in income from the known sources in the
intervening period. The CBDT is best equipped to do
this exercise as part of responsibility cast upon them
under the law. After completion of this exercise
necessary follow up can be taken to serve as a lesson
to them and deterrent to others to desist from
converting public service into private enterprise.”
21
28. It is in this background, the instant petition came to be
filed wherein the petitioner alleges -
“That in view of the reluctance of the Parliament to act on
their 18 year old resolution referred to above and the failure
of the respondents to even respond, leave alone meaningfully
effectuate implementation of the judgments of this Hon’ble
Court in Association 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 (AIR 2015 SC 1921) in this regard for restoring
and maintaining the purity of our highest legislative bodies
in accordance with the intentions of the founding fathers of
the Constitution and the concern expressed by the framers
of the Representation of the People Act, 1951 intervention of
this Hon’ble Court has become necessary in terms of the
following observation of this Hon’ble Court in the case of
Vineet Narain, (1998) 1 SCC 226 (para 49).”
in order to justify their approaching this court for the various
reliefs sought in the writ petition. They are:
“1. issue a writ, order or direction, in the nature of
mandamus –
(1) to respondents no.1 and 2 to make necessary
changes in the Form 26 prescribed under Rule
4A of the Conduct of Election Rules, 1961
keeping in view the suggestion in para 38 of the
WP;
(2) to respondent no.1 to consider suitable
amendment in the Representation of the People
Act 1951 to provide for rejection of nomination
papers of the candidates and disqualification of
MPs/MLAs/MLCs deliberately furnishing wrong
information about their assets in the affidavit in
Form 26 at the time of filing of the nomination;
(3) to respondents no.3 to 5 to(i)
conduct inquiry/investigation into
disproportionate increase in the assets of
MPs/MLAs/MLCs included in list in
Annexure P6 to the WP,
22
(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,
(iii) fast track corruption cases against
MPs/MLAs/MLCs to ensure their disposal
within one year.
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 under Section 100(1)(b)
of the RP Act of 1951 in terms of the judgment
reported in AIR 2015 SC 1921.
3. issue a writ, order or direction in the nature of
mandamus to the respondents to consider amending
Section 9-A of the Act to include contracts with
appropriate Government and any public company by
the Hindu undivided family/trust/partnership
firm(s)/private company (companies) in which the
candidate and his spouse and dependents have a
share or interest.
4. issue a writ, order or direction in the nature of
mandamus to the respondents that pending
amendment in Section 9-A of the Act, information
about the contracts with appropriate Government and
any public company by the candidate, his/her spouse
and dependents directly or by Hindu undivided
family/trust/partnership firm(s)/private company
(companies) in which the candidate and his spouse
and dependents have a share or interest shall also be
provided in the affidavit in Form 26 prescribed under
the Rules.”
5. By way of I.A. 8/2016 the Petitioner prayed that an
amendment be made to the Writ Petition for the
addition of the following prayers: As Form 26
prescribed under the Rules provides information only
about possible disqualification on the basis of
conviction in criminal cases, mentioned in Section 8 of
the RP Act of 1951, it does not contain information on
the provisions in Section 8-A, 9, 9A, 10, and 10-A
regarding disqualification in Chapter III of the said Act
which may render a candidate ineligible to contest.
The Petitioner therefore, prays that Form 26 may be
further amended to provide the following information
23
I. Whether the candidate was found guilty of a
corrupt practice 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 or for disloyalty while holding an
office under the Government of India or the
Government of any State?
IV. If, yes the decision of such dismissal as per the
certificate issued by the EC under Section 9 of
the Act.
V. Whether the candidate is a managing agent,
manager or Secretary of any company or
Corporation (other than co-operative society) in
the capital of which the appropriate government
has not less than twenty-five percent share?
VI. Whether the candidate has lodged an account of
election expenses in respect of the last election
contested by him within the time and in the
manner required by or under the RP Act of
1951?
29. The 2nd respondent [Election Commission of India (ECI)]
filed a counter affidavit supporting the case of the petitioner
insofar as the prayer with respect to the need to obligate the
CANDIDATES to disclose their sources of income etc.
“Para 3. Since the prayers made in the accompanying PIL
are not adversarial, the answering Respondent No.2 –
Election Commission of India (ECI) supports the cause
espoused by the Petitioner organization, which is a step
ahead towards a (i) healthier democracy, (ii) in furtherance of
level playing field for participative democracy, and (iii) free
and fair elections. The ECI supports the prayer No.1 as it
has already written to Ministry of Law and Justice to Amend
the Form 26 for including the source 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
believe that it is time to cleanse the Augean stable.
24
30. UNDUE ACCRETION OF ASSETS of LEGISLATORS and
their ASSOCIATES is certainly a matter which should alarm
the citizens and voters of any truly democratic society. Such
phenomenon is a sure indicator of the beginning of a failing
democracy. If left unattended it would inevitably lead to the
destruction of democracy and pave the way for the rule of
mafia. Democracies with higher levels of energy have already
taken note of the problem and addressed it. Unfortunately, in
our country, neither the Parliament nor the Election
Commission of India paid any attention to the problem so far.
This Court in ADR case took note of the fact that in certain
democratic countries, laws exist 24 compelling legislators,
officers and employees of the State to periodically make
financial disclosure statements. But this Court did not issue
any further direction in that regard. Hence the present writ
petition.
31. Undue accumulation of wealth in the hands of any
individual would not be conducive to the general welfare of the
24 United States of America enacted a law known as Ethics in Government Act, 1978 which was further
amended in 1989. “Ethics Manual for Members, Employees and Officers of the US House of
Representatives” indicates that such disclosure provisions were enacted to “monitor and deter possible
conflicts of interests”.
25
society. It is the political belief underlying the declaration of
the Preamble of the Constitution that India should be a
Socialistic Republic. Articles 38 and 39 of our Constitution
declare that the State shall direct its policy towards securing
that the ownership and control of material resources of the
community are distributed so as to best subserve the common
good and guaranteeing that the economic system does not
result in the concentration of wealth and means of production
to the common detriment. In our opinion, such declarations
take within their sweep the requirement of taking appropriate
measures to ensure that LEGISLATORS and the ASSOCIATES
do not take undue advantage of their constitutional status
afforded by the membership of the LEGISLATURE enabling the
LEGISLATOR to have access to the power of the State.
Accumulation of wealth in the hands of elected representatives
of the people without any known or by questionable sources of
income paves way for the rule of mafia substituting the rule of
law. In this regard, both the petitioner and the 2nd respondent
are ad idem. The 2nd respondent in its counter stated:
“Para 4. The increasing role of money power in elections is
too well known and is one of the maladies which sometimes
reduces the process of election into a mere farce by placing
some privileged candidates with financial resources in a
distinctly advantageous position as compared to other
26
candidates. The result of such an election cannot reflect the
true choice of the people. The system also sometimes
deprives qualified and able persons of the prerogative to
represent masses.”
32. If assets of a LEGISLATOR or his/her ASSOCIATES
increase without bearing any relationship to their known
sources of income, the only logical inference that can be drawn
is that there is some abuse 25 of the LEGISLATOR’s
Constitutional Office. Something which should be
fundamentally unacceptable in any civilized society and
antithetical to a constitutional Government. It is a
phenomenon inconsistent with the principle of the Rule of Law
and a universally accepted Code of Conduct expected of the
holder of a public office in a Constitutional democracy.
Cromwell declared that such people are “enemies to all good
governments”. The framers of the Constitution and the
Parliament too believed so. The makers of the Constitution
gave sufficient indication of that 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 to become or
continue to be a LEGISLATOR. It is that belief which
25 “behind every great fortune lies a great crime” - BALZAC
27
prompted the Parliament to make the prevention of corruption
laws.
33. The most crude process by which a LEGISLATOR or his
ASSOCIATES could accumulate assets is by resorting to
activities which constitute offences under the Prevention of
Corruption Act, 198826 (hereafter the PC Act). Gold is their
God!
Abnormal growth of assets of a LEGISLATOR or his
ASSOCIATES need not always be a consequence of such illegal
activity. It could be the result of activities which are improper,
i.e. activities which may or may not constitute offences either
under the PC Act or any other law but are inconsistent with
the basic constitutional obligations flowing from the nature of
the office of a LEGISLATOR. They are deputed by the people
to get grievances redressed. But they become the grievance.
26 Section 7 of the PC Act.
“Public servant taking gratification other than legal remuneration in respect of an official act.—
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to
obtain from any person, for himself or for any other person, any gratification whatever, other than legal
remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for
rendering or attempting to render any service or disservice to any person, with the Central Government or
any State Government or Parliament or the Legislature of any State or with any local authority,
corporation or Government company referred to in clause (c) of section 2, or with any public servant,
whether named or otherwise, shall be punishable with imprisonment which shall be not less than three
years but which may extend to seven years and shall also be liable to fine.”
28
(i) There are known cases of availing of huge amount of
loans for allegedly commercial purposes from public
financial institutions by LEGISLATORS or their
ASSOCIATES either directly or through bodies corporate
which are controlled by them; a notorious fact in a good
number of cases. Such loan accounts become nonperforming
assets 27 (NPAs) within the meaning of
SARFAESI ACT in the hands of the financial institutions
which advance loans. It is equally a widely prevalent
phenomenon that borrowers (LEGISLATORS or even
others) whose accounts have become NPAs are able to
secure fresh loans in huge amounts either from the very
same or other financial institutions.
(ii) Securing of contracts of high monetary value either from
Government (Central or State) or other bodies corporate
which are controlled by Government is another activity
which enables LEGISLATORS and their ASSOCIATES to
acquire huge assets. It is worth mentioning here that
27 Section 2(o) "non-performing asset" means an asset or account of a borrower, which has been classified
by a bank or financial institution as sub-standard, doubtful or loss asset,
(a) in case such bank or financial institution is administered or regulated by an authority or body
established, constituted or appointed by any law for the time being in force, in accordance with
the directions or guidelines relating to assets classifications issued by such authority or body;
(b) in any other case, in accordance with the directions or guidelines relating to assets
classifications issued by the Reserve Bank;"
29
Section 7(d)28 of the RP Act of 1951 initially provided that
any person who has a share or interest in a contract for
the supply of goods or for the execution of any works or
performance of any services either by himself or through
any person or body of persons in trust for him or for his
benefit etc. is disqualified. However, by amendment of
Act 58 of 1958, the said provision was dropped and
Section 9A 29 was introduced which enables the
ASSOCIATES of the LEGISLATORS either directly or
through a body corporate to acquire such contracts.
Abnormal increase in the personal assets of the
LEGISLATORS and their ASSOCIATES is required to be
examined in juxtaposition to the above mentioned activities.
Further, it is also necessary to examine whether such benefits
28 Section 7. Disqualification for membership of Parliament or of a State Legislature – A person shall
be disqualified for being chosen as, and for being, a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of the state –
(a) xxxxx xxxxxx xxxxxx xxxxxx
(b) xxxxx xxxxxx xxxxxx xxxxxx
(c) xxxxx xxxxxx xxxxxx xxxxxx
(d) If, whether, by himself or by any person or body of person in trust for him or for his benefit or on
his account, he has any share or interest in a contract for the supply of goods to, or for the
execution of any works or the performance of any services undertaken by the appropriate
Government.
(e) xxxxx xxxxxx xxxxxx xxxxxx
(f) xxxxx xxxxxx xxxxxx xxxxxx 29 Section 9A. Disqualification for Government contracts etc.- A person shall be disqualified if, and for
so long as, there subsists a contract entered into by him in the course of his trade or business with the
appropriate government for the supply of goods to, or for the execution of any works, undertaken by that
government.
30
were received by taking undue advantage of the office of the
LEGISLATOR.
34. The question is how to ensure compliance with the
constitutional goals enshrined in Articles 38 and 39 in the
context of the problem on hand.
POSSIBLE SOLUTIONS:
(1) making of laws which render such undue
accumulation of wealth an offence;
(2) disqualifying LEGISLATORS who have acquired
wealth through unconstitutional means, from
continuing as or seeking to get re-elected as
LEGISLATORS; and
(3) making it known to the electorate to enable them to
make a choice whether such LEGISLATORS should
be given a further opportunity.
Whatever be the best solution out of the abovementioned
three possibilities, it requires collection of data regarding the
financial status of the LEGISLATORS and their ASSOCIATES
and examining the same to ascertain whether there is an
impermissible accumulation of wealth in their hands.
31
OFFENCE:
35. Provisions already exist in the Prevention of Corruption
Act, 1988 (hereafter the PC Act) specifying various activities
enumerated therein to be offences. For example: Under
Section 13(1)(e)30 of the PC Act, it is misconduct for a public
servant to be in possession either personally or through some
other person, “of pecuniary resources or property disproportionate to
his known sources of income.” Under Section 13(2) 31 , such a
misconduct is an offence punishable with imprisonment for a
period up to 10 years and also liable to fine.
This Court has already held that a LEGISLATOR is a
public servant 32 . Section 8(1)(m) 33 of the RP Act of 1951
30 13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of
criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself
or for any other person any gratification other than legal remuneration as a motive or reward such as is
mentioned in section 7; or
xxxxxx xxxxx xxxxxx xxxxx xxxxxx xxxxxx
or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office,
been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or
property disproportionate to his known sources of income.
Explanation.—For the purposes of this section, “known sources of income” means income received from
any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules
or orders for the time being applicable to a public servant.
31 Section 13(2) - Any public servant who commits criminal misconduct shall be punishable with
imprisonment for a term which shall be not less than four years but which may extend to ten years and shall
also be liable to fine.
32 P. V. Narasimha Rao v. State, (1998) 4 SCC 626
“Para 85. Having considered the submissions of the learned counsel on the meaning of the expression
“public servant” contained in Section 2(c) of the 1988 Act, we are of the view that a Member of
Parliament is a public servant for the purpose of the 1988 Act.” 33 “Section 8. Disqualification on conviction for certain offences.—(1) A person convicted 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;
32
declares34 that a person convicted for an offence under the PC
Act, 1988 is disqualified35 both for being chosen or continuing
as a LEGISLATOR.
DISQUALIFICATION:
36. We now deal with the question of disqualifying
LEGISLATORS either from continuing as LEGISLATORS or
from getting re-elected to any legislative body on the ground
that they or their ASSOCIATES have acquired assets which
are disproportionate to their known sources of income.
37. We have already noted that under Section 8(1)(m) of the
RP Act of 1951, it is provided that persons convicted and
sentenced to imprisonment for not less than 6 months for
offences under the provisions of various enumerated offences
under Section 8 of the RP Act of 1951 are disqualified either
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified 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 that a LEGISLATOR
either by himself or through his ASSOCIATES acquired assets (during the incumbency as LEGISLATOR)
which are disproportionate to his known sources of the income. Initiation of investigation and prosecution
for establishing the occurrence of the offences under the PC Act and proof of the guilt are riddled with
procedural constraints and political obstacles and dis-prudential difficulties.
It becomes a more complicated and difficult task when the accused himself happens to be a law
maker/LEGISLATOR. The history of this country during the last 70 years speaks eloquently how
unsuccessful the State has been in bringing to book the LEGISLATORS with questionable financial
integrity. The reasons are many. Low level efficiency of the State machinery (both investigating and
prosecuting agencies) and the legal system, lack of political will are some of the known reasons. Criminal
jurisprudence gives a great deal of benefit of doubt to an accused person and expects the State 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 of either
House of Parliament or of the Legislative Assembly or Legislative Council of a State.”
33
for being chosen or continuing as a LEGISLATOR. The
petitioner seeks such a disqualification to be imposed even in
the absence of a conviction under the provisions of the PC Act.
38. Parliament has prescribed various disqualifications in
Chapter III 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 specified under each of those sections. Undue
accumulation of wealth (assets of the LEGISLATORS) is not
one of the grounds specified either under any of the
abovementioned provisions or under Articles 102 and 191 of
the Constitution which stipulate some of the disqualifications.
However, both the Articles36 stipulate that the Parliament may,
by or under any law, prescribe disqualifications other than
those specified thereunder.
39. The distinction between something done by a law and
done under a law fell for consideration of this court in several
cases commencing from Dr. Indramani Pyarelal Gupta &
36 Article 102. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament—
xxx xxx xxx xxx
(e) if he is so disqualified by or under any law made by Parliament.
Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or Legislative Council of a State—
xxx xxx xxx xxx
(e) if he is so disqualified by or under any law made by Parliament.
34
others vs. W.R. Natu & others, AIR 1963 SC 27437 and a
constitution bench of this Court held at para 15:
“……. The meaning of the words, “under the Act” is wellknown.
“By” an Act would mean by a provision directly
enacted in the statute in question and which is gatherable
from its express language or by necessary implication
therefrom. The words “under the Act” would, in that context
signify what is not directly to be found in the statute itself
but is conferred or imposed by virtue of powers enabling this
to be done; in other words, bye-laws made by a subordinate
law-making authority which is empowered to do so by the
parent Act. The distinction is thus between what is directly
done by the enactment and what is done indirectly by rulemaking
authorities which are vested with powers in that
behalf by the Act. ……….. That in such a sense bye-laws
would be subordinate legislation “under the Act” is clear
from the terms of Ss.11 and 12 themselves.”
We are of the opinion that the ratio of the judgment applies in
all force to the interpretation of Articles 102(1)(e) and 191(1)(e).
40. Manifold and undue accretion of assets of LEGISLATORS
or their ASSOCIATES by itself might be a good ground for
disqualifying a person either to be a LEGISLATOR or for
seeking to get re-elected as a LEGISLATOR. Statutes made by
the Parliament are silent in this regard. But Section 169(1)38
of the RP Act of 1951 authorises the central government to
make rules for carrying out the purposes of the Act. If the
nation believes that those who are elected to its legislative
37 See also Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority of India and Others, (2014) 3 SCC
222, para 90.
38 Section 169. Power to make rules.—(1) The Central Government may, after consulting the Election
Commission, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
35
bodies ought not to take undue advantage of their election to
the LEGISLATURE for accumulation of wealth by resorting to
means, which are inconsistent with the letter and spirit of the
Constitution and also the laws made by the legislature,
appropriate prescriptions are required to be made for carrying
out the purpose of the RP Act of 1951. The purpose of
prescribing disqualifications is to preserve the purity of the
electoral process. Purity of electoral process is fundamental to
the survival of a healthy democracy. We do not see any
prohibition either under the Constitution or the laws made by
the Parliament disabling or stipulating that the central
government should not make rules (in exercise of the powers
conferred by the Parliament under Section 169 of the RP Act of
1951 read with Articles 102(1)(e) and 191(1)(e) of the
Constitution) providing for such disqualification. On the other
hand, Parliament under Section 169 of the RP Act of 1951
authorised the Government of India to make rules for carrying
out the purposes of the Act.
41. The Conduct of Election Rules, 1961 is an example of
subordinate legislation; enacted by the Central Government
pursuant to the power given under Section 169(1) of the RP
36
Act of 1951.39 Section 169(2) authorizes the making of rules
for carrying out the purposes of the Act – ‘without prejudice to
the generality of the power to make Rules’. 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 no legislature
can ever comprehend all possible situations which are
required to be regulated by the statute.40
42. Logically, we see no difficulty in accepting the submission
of the petitioner in the light of the mandate of the directive
principles and the prescription of the Parliament under the PC
Act that such undue accretion of wealth is a culpable offence.
There is a need to make appropriate provision declaring that
the UNDUE ACCRETION OF ASSETS is a ground for
disqualifying a LEGISLATOR even without prosecuting the
LEGISLATOR for offences under the PC Act. It is well settled
that a given set of facts may in law give rise to both civil and
criminal consequences. For example; in the context of
employment under State, a given set of facts can give rise to a
39 The Central Government may, after consulting the Election Commission, by notification in the Official
Gazette, make rules for carrying out the purposes of this Act.
40 Para 133 of J.K. Industries Limited &Anr vs. Union of India., (2007) 13 SCC 673
It is well settled that, what is permitted by the concept of “delegation” is delegation of ancillary or
subordinate legislative functions or what is fictionally called as “power to full up the details the details”.
The judgments of this Court have laid down that the legislature may, after laying down the legislative
policy, confer discretion on administrative or executive agency like the Central Government to work out
details within the framework of the legislative policy laid down in the plenary enactment.
37
prosecution for an offence and also simultaneously form the
basis for disciplinary action under the relevant Rules
governing the service of an employee.
43. It is always open to the LEGISLATURE to declare that
any member thereof is unfit to continue as such. In Raja
Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3
SCC 184, this Court took note of the history of the
parliamentary privileges, scheme and text of the Constitution
and opined that the power of expulsion is part of the privileges
and immunities of the Parliament. It is relevant to notice that
under Article 105(3), “the powers, privileges and immunities of each
house of Parliament” may be “defined by Parliament by law”. This
court noticed and proceeded on the assumption41 that no such
law existed. Yet it was held by this Court42 that such power
was part of the privileges of the Legislature.
44. It therefore follows clearly and a fortiori that at least in
the context of expulsion of a member of the LEGISLATURE, by
a decision of that House, no statutory provision is required for
stipulating the grounds on which a member could be expelled
or the procedure which is required to be followed. Though
41 See paragraph 43 Per. Sabharwal, CJI. 42 See paragraph 318, Per. Sabharwal, CJI.
38
Article 105 and 194 authorises the LEGISLATURE to define
the “powers and privileges and immunities”, the non-exercise of that
power to legislate, does not detract the power of the
LEGISLATURE to expel a member on the ground that a
member resorted to some activity which does not meet the
approval of the House. A decision to expel a member would
certainly have the same effect as disqualifying a member on
the grounds specified under Articles 102 and 191. This Court
in Raja Ram Pal case highlighted the difference between
“expulsion” and “disqualification”. 43 It may not answer the
description of the expression disqualified as defined under the
RP Act of 1951 or the grounds mentioned under Article 102
and 191. The disqualification brought about by expulsion is
limited, of course, to the tenure of the member and does not
disqualify him from seeking to become a member again by
contesting an election in accordance with law.
45. The next question to be examined is whether it is
permissible for the respondents to make subordinate
legislation stipulating that UNDUE ACCRETION OF ASSETS
would render a LEGISLATOR disqualified within the meaning
43 Id. at paragraphs 144 and 145
39
of the expression under Section 7(b) of the RP Act of 1951 and
to establish a body to undertake the regular monitoring 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 any legislative prescription, in the light of the
Scheme and tenor of Articles 102(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 such a stipulation
by making appropriate Rules declaring that UNDUE
ACCRETION OF ASSETS would render a LEGISLATOR
“disqualified”. Further, it would be equally competent for the
Government of India to establish a permanent mechanism for
monitoring the financial affairs of the LEGISLATORS and their
ASSOCIATES for periodically ascertaining the relevant facts.
Because the establishment of such a permanent mechanism
would be a necessary incident of the authority to declare a
LEGISLATOR “disqualified”.
INFORMATION TO THE VOTER:
47. The information regarding the sources of income of the
CANDIDATES and their ASSOCIATES, would in our opinion,
40
certainly help the voter to make an informed choice of the
candidate to represent the constituency in the LEGISLATURE.
It is, therefore, a part of the fundamental right under Article
19(1)(a) as explained by this Court in ADR case.
It must be mentioned that the 1st respondent in its
counter affidavit stated:
“Para 6. That it is further stated that the Election
Commission of India’s proposal relating to amending of Form
26 was thoroughly examined and considered in Ministry of
Law and Justice and a final decision has been taken to
amend the Form 26 of 1961 Rules. As the issues involved
relate to policy matter and after due deliberations on the
subject matter a final policy decision was taken to amend
the Form 26.”
48. Collection of such data can be undertaken by any
governmental agency or even the Election Commission44. The
present writ petition seeks that State be compelled to make a
law authorizing the collection of data pertaining to the
financial affairs of the LEGISLATORS. The petitioner submits
that the first step in the collection of data should be to call
upon those who seek to get elected to a legislative body to
make a declaration of - (i) their assets and those of their
ASSOCIATES (which is already a requirement under Section
44 We must make it clear that nothing in law prevents a vigilant citizen from collecting such data for
initiating appropriate proceedings in accordance with law.
41
33 of the RP Act of 1951 etc.); and (ii) the sources of their
income.
49. The obligation to make the second of the abovementioned
two declarations arises as a corollary to the
fundamental right of the voter under Article 19(1)(a) to know
the relevant information with respect to the CANDIDATE, to
enable the voter to make an assessment and make an
appropriate choice of his representative in the Legislature. The
enforcement of such a fundamental right needs no statutory
sanction. This Court and the High Courts are expressly
authorized by the Constitution to give appropriate directions
to the State and its instrumentalities and other bodies for
enforcement of Fundamental Rights. On the other hand,
nobody has the fundamental right to be a LEGISLATOR or to
contest an election to become a LEGISLATOR. They are only
constitutional rights structured by various limitations
prescribed by the Constitution and statutes like the RP Act of
1951. The Constitution expressly permits the structuring of
those rights by the Parliament by or under the authority of
law by prescribing further qualifications or disqualifications.45
45 See Articles 84(c), 102(1)(e), 173(c) and 191(1)(e)
42
To contest an election for becoming a legislator, a CANDIDATE
does not require the consent of all the voters except the
appropriate number of proposers being electors of the
Constituency, 46 and compliance with other procedural
requirements stipulated under the RP Act of 1951 and the
rules made thereunder. But to get elected, every CANDIDATE
requires the approval of the ‘majority’ of the number of voters
of the Constituency choosing to exercise their right to vote.
Voters have a fundamental right to know the relevant
information about the CANDIDATES. For reasons discussed
Article 84. Qualification for membership of Parliament.— A person shall not be qualified to be chosen
to fill a seat in Parliament unless he—
xxxxx xxxxx xxxxx
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law
made by Parliament
Article 102. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,
and for being, a member of either House of Parliament—
xxxxx xxxxx xxxxx
(e) if he is so disqualified by or under any law made by Parliament.
Article 173. Qualification for membership of the State Legislature.— A person shall not be qualified to
be chosen to fill a seat in the Legislature of a State unless he—
xxxxx xxxxx xxxxx
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law
made by Parliament
Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,
and for being, a member of the Legislative Assembly or Legislative Council of a State—
xxxxx xxxxx xxxxx
(e) if he is so disqualified by or under any law made by Parliament. 46Section 33. Presentation of nomination paper and requirements for a valid nomination. —(1) On or
before the date appointed under clause (a) of section 30 each CANDIDATE shall, either in person or by his
proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to
the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination
paper completed in the prescribed form and signed by the CANDIDATE and by an elector of the
constituency as proposer :
Provided that a CANDIDATE not set up by a recognised political party, shall not be deemed to be duly
nominated for election form a constituency unless the nomination paper is subscribed by ten proposers
being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a
public holiday:
Provided also that in the case of a local authorities' constituency, graduates' constituency or 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 or ten such electors, whichever is less, as proposers.
43
earlier, the financial background in all its aspects, of the
CANDIDATE and his/her ASSOCIATES is relevant and critical
information. Therefore, a CANDIDATE’S constitutional right to
contest an election to the legislature should be subservient to
the voter’s fundamental right to know the relevant information
regarding the CANDIDATE; information which is critical to the
making of an informed and rational choice in this area.
50. No doubt, compelling a CANDIDATE to disclose the
relevant information, would to an extent be a legal burden on
the CANDIDATE’S constitutional right to contest an election.
The question, therefore, would be whether it requires a
statutory sanction to create such compulsion.
If we analyse the scheme of the Constitution, rights
falling under the Fundamental Rights chapter cannot be
abrogated or taken away except by authority of law. Law in
the context has always been held by this Court to require
statutory basis47. There are various other rights conferred by
the Constitution other than the fundamental rights. Whenever
it was thought fit that such rights should be curtailed, the text
47 State of Bihar v. Project Uchcha Vidya, Shiksha Sangh, (2006) 2 SCC 545, 574 paragraph 69; Bhuvan
Mohan Patnaik & Others v. State of Andhra Pradesh, (1975) 3 SCC 185, 189 paragraph 14
44
of the Constitution made a declaration to that effect and also
stipulated the manner in which such rights could be
controlled or regulated. Article 10248 is a limitation on the
constitutional right of the citizens to seek the membership of
the Parliament. It prescribes certain disqualifications for
being chosen as or for a being a Member of either House of the
Parliament. It further declares that apart from the enumerated
disqualifications, other disqualifications could be prescribed
by or under any law made by the Parliament. In other words,
Parliament could itself prescribe disqualifications or could
authorize some other body or authority to prescribe such
disqualifications. Similar is the structure of Article 84 with
respect to qualifications for membership of Parliament. We
have already recorded our opinion that a disqualification could
be prescribed by a Rule. Logically there cannot be any
objection for imposing the legal burden upon the
CANDIDATES to disclose the relevant information by RULES
(subordinate legislation) under the RP Act of 1951. Form 26
provides for various kinds of information to be disclosed by the
candidate. It cannot be said that the existing information
required to be disclosed under the Affidavit is exhaustive of all
48 Supra Note 35
45
the information a candidate needs to provide. Neither is the
information provided under Section 33A an exhaustive list.
This is because any embargo placed on the voters’ right to
know the relevant information to be disclosed by the candidate
is subject to scrutiny under the fundamental right of the voter
under Article 19(1)(a). Therefore, any limitation on information
to voter cannot be inferred. We are of the opinion that Form 26
is only indicative of the information which is required to
enable the voter to make an informed choice. And we see no
legal bar in Section 169(2) to fetter the Central Government’s
rule making power from making such information available.49
51. Under Section 33 50 of the RP Act of 1951, every
CANDIDATE is required to deliver to the returning officer “a
nomination 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 51
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, the function of sub-section (2) is merely an
illustrative one; the rule-making power is conferred by sub-section (1), and ‘the rules’ which are referred to
in the opening sentence of sub-section (2) are the rules which are authorized by, and made under, subsection
(1), as, indeed, is expressly stated by the words ‘without prejudice to the generality of the
powers conferred by sub-section (1)”; This statement of law was reiterated 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; BSNL Vs. TRAI (2014) 3 SCC para. 90; Afzal Ullah v. State of UP, AIR
1964 SC 264
50 Supra Note. 46 51 It, inter alia, authorizes the making of rules pertaining to the form of affidavit under sub section (3) of
Section 33A. (Inserted by Act 72 of 2002, Sec. 6 (w.r.e.f 24-8-2002)
46
authorises the Government of India by notification in the
Official Gazette to make rules for carrying out the purposes of
the Act. Therefore, the contents of the nomination form could
be determined by the Rules.
52. We shall now examine each one of the prayers in the writ
petition and the feasibility of granting any relief thereon in the
light of our above conclusions.
53. At the outset, we must make it clear that prayers 1(2)52
and 353 seek directions to the respondents for amendment of
the provisions of the RP Act of 1951.
Amendment of the RP Act of 1951 is a matter exclusively
within the domain of the Parliament. It is well settled that no
court could compel and no writ could be issued to compel any
legislative body to make a law. It must be left to the wisdom of
the legislature. Prayers 1(2) and 3, insofar as they seek
52 1. issue a writ, order or direction, in the nature of mandamus –
xxx xxx xxx
(2) to respondent no.1 to consider suitable amendment in the Representation of the People Act
1951 to provide for rejection of nomination papers of the candidates and disqualification of
MPs/MLAs/MLCs deliberately furnishing wrong information about their assets in the affidavit in
Form 26 at the time of filing of the nomination;
53 3. issue a writ, order or direction in the nature of mandamus to the respondents to consider amending
Section 9-A of the Act to include contracts with appropriate Government and any public company by the
Hindu undivided family/trust/partnership firm(s)/private company (companies) in which the candidate
and his spouse and dependents have a share or interest.
47
directions in the nature of mandamus to consider amendment
of the RP Act of 1951 cannot be granted.
54. In prayer 1(1) 54 , the petitioner seeks a direction to
respondent Nos.1 and 2 to make changes in Form 26
prescribed under Rule 4A of the RULES, which would provide
for calling upon the CANDIDATES to declare their sources of
income along with the sources of the income of their respective
ASSOCIATES.
The prescription such as the one sought by the petitioner
regarding the disclosure of the sources of income of the
CANDIDATE and his/her ASSOCIATES in a nomination could
certainly be made by making appropriate Rules. The next
question is whether the respondents could be compelled to
make appropriate Rules for the above-mentioned purpose.
The Government of India, functioning as a statutory body for
prescribing rules under the RP Act of 1951, is amenable to
writ jurisdiction under Article 32 for the enforcement of the
fundamental right under Article 19(1)(a) of the voter to know
the relevant information with respect to the candidates.
54 “1. Issue a writ, order or direction, in the nature of mandamus -
(1) to respondents no.1 and 2 to make necessary changes in the Form 26 prescribed under Rule 4A
of the Conduct of Election Rules, 1961 keeping in view the suggestion in para 38 of the WP;”
48
Respondent Nos.1 and 2 are constitutionally obliged to
implement the directions given by this Court in exercise of its
jurisdiction under the Constitution. It may also be noticed that
Section 169(1) of the RP Act of 1951 obligates the Government
of India to make Rules after consulting the Election
Commission. In the light of the conclusions recorded in paras
42 to 45, we are also of the opinion the information regarding
the sources of income of the LEGISLATORS and their
ASSOCIATES and CANDIDATES is relevant and
LEGISLATORS and CANDIDATES could be compelled even by
subordinate legislation. We see no reason for declining prayer
1(1).
55. In the light of the law declared by this Court in ADR case
and PUCL case, we do not see any legal or normative
impediment nor has any tenable legal objection been raised
before us by any one of the respondents, for issuance of the
direction relating to the changes in FORM 26 (declaration by
the CANDIDATES). On the other hand, the 2nd respondent in
his counter stated:
“7. It is submitted that so far as the first prayer in the
captioned writ petition is concerned, the information about
source(s) of income of candidates, their spouses and
49
dependants will be a step in the direction of enhancing
transparency and should form part of the declaration in
Col.(9) of Form 26. The Answering Respondent Commission
vide its letter no.3/4/ECI/LET/FUNC/JUD/SDR/Vol.I/2016
dated 7.09.2016 has already requested the Ministry of Law
and Justice to consider the proposed amendments made 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
granted and is accordingly granted. We direct that Rule 4A of
the RULES and Form 26 appended to the RULES shall be
suitably amended, requiring CANDIDATES and their
ASSOCIATES to declare their sources of income.
56. We shall now deal with prayer 1(3) which seeks three
distinct reliefs. In our opinion, it would be more logical to deal
with the relief sought in prayer 1(3)(ii)55 first.
In prayer 1(3)(ii), the petitioner seeks a direction for
establishment of a permanent mechanism to inquire/
investigate into the disproportionate increase in the assets of
LEGISLATORS during their tenure as LEGISLATORS.
The 1st respondent is silent in its counter in this regard
except making an omnibus claim and a general stand that all
55 1. issue a writ, order or direction, in the nature of mandamus -
xxx xxx xxx
(3) to respondents no.3 to 5 toxxx
xxx xxx
(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,
50
the prayers are in the realm of policy and within the exclusive
domain of the Parliament.
57. We have already taken note of (i) the fact that increase in
the assets of the LEGISLATORS and/or their ASSOCIATES
disproportionate to the known sources of their respective
incomes is, by compelling inference, a constitutionally
impermissible conduct and may eventually constitute offences
punishable under the PC Act and (ii) ‘undue influence’ within
the meaning of Section 123 of the RP Act of 1951. In order to
effectuate the constitutional and legal obligations of
LEGISLATORS and their ASSOCIATES, their assets and
sources of income are required to be continuously monitored
to maintain the purity of the electoral process and integrity of
the democratic structure of this country. Justice Louis D.
Brandeis, perceptively observed: “the most important political
office is that of the private citizen.”
58. The citizen, the ultimate repository of sovereignty in a
democracy must have access to all information that enables
critical audit of the performance of the State, its
instrumentalities and their incumbent or aspiring public
officials. It is only through access to such information that the
51
citizen is enabled/empowered to make rational choices as
regards those holding or aspiring to hold public offices, of the
State.
59. The State owes a constitutional obligation to the people of
the country to ensure that there is no concentration of wealth
to the common detriment and to the debilitation of democracy.
Therefore, 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 of LEGISLATORS and their respective ASSOCIATES and
examine in every case whether there is disproportionate
increase in the assets and recommend action in appropriate
cases either to prosecute the LEGISLATOR and/or
LEGISLATOR’S respective ASSOCIATES or place the
information before the appropriate legislature to consider the
eligibility of such LEGISLATORS to continue to be members of
the concerned House of the legislature.
60. Further, data so collected by the said mechanism, along
with the analysis and recommendation, if any, as noted above
should be placed in the public domain to enable the voters of
52
such LEGISLATOR to take an informed and appropriate
decision, if such LEGISLATOR chooses to contest any election
for any legislative body in future.
61. For the reasons mentioned above, we allow the prayer
1(3)(ii) of the 1st respondent.
62. In prayer 1(3)(i)56, the petitioner prays that an inquiry/
investigation be conducted into the “disproportionate increase
in the assets” of the LEGISLATORS named in Annexure P-6 to
the writ petition.
We are of the opinion that an inquiry/investigation such
as the one sought for by the petitioner with reference to the
named LEGISLATORS would amount to selective scrutiny of
the matter in the absence of any permanent mechanism
regularly monitoring the growth of the assets of all the
LEGISLATORS and/or their ASSOCIATES as a class. Such a
selective investigation could lead to political witch-hunting.
We, therefore, decline this relief, at this stage.
56 1. issue a writ, order or direction, in the nature of mandamus -
xxx xxx xxx
(3) to respondents no.3 to 5 to(i)
conduct inquiry/investigation into disproportionate increase in the assets of MPs/MLAs/MLCs
included in list in Annexure P6 to the WP,
53
63. We shall now deal with prayer no.2 57 which seeks a
declaration that non-disclosure of assets and sources of
income would amount to ‘undue influence’ – a corrupt practice
under Section 123(2) of the RP Act of 1951. In this behalf,
heavy reliance is placed by the petitioner on a judgment of this
Court in Krishnamoorthy v. Sivakumar & Others, (2015) 3
SCC 467. It was a case arising under the Tamil Nadu
Panchayats Act, 1994. A notification was issued by the State
Election Commission stipulating that every candidate at an
election to any Panchayat is required to disclose information
inter alia whether the candidate was accused in any pending
criminal case of any offence punishable with imprisonment for
two years or more and in which charges have been framed or
cognizance has been taken by a court of law. In an election
petition, it was alleged that there were certain criminal cases
pending falling in the abovementioned categories but the said
information was not disclosed by the returned candidate at the
time of filing his nomination. One of the questions before this
Court was whether such non-disclosure amounted to ‘undue
influence’ – a corrupt practice under the Panchayats Act. It
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 under Section 100(1)(b) of the RP Act of 1951 in terms of the
judgment reported in AIR 2015 SC 1921.”
54
may be mentioned that the Panchayats Act simply adopted the
definition of a corrupt practice as contained in Section 123 of
the RP Act of 1951.
On an elaborate consideration of various aspects of the
matter, this Court held as follows:
91. … While filing the nomination form, if the requisite
information, as has been highlighted by us, relating to
criminal antecedents, is not given, indubitably, there is an
attempt to suppress, effort to misguide and keep the people
in dark. This attempt undeniably and undisputedly is undue
influence and, therefore, amounts to corrupt practice. …”
64. For the very same logic as adopted by this Court in
Krishnamoorthy, we are also of the opinion that the nondisclosure
of assets and sources of income of the
CANDIDATES and their ASSOCIATES would constitute a
corrupt practice falling under heading ‘undue influence’ as
defined under Section 123(2) of the RP Act of 1951. We,
therefore, allow prayer No.2.
65. Coming to Prayer No. 4, the petitioner is only seeking
information regarding the contracts, if any with the
appropriate government either by the candidate or his/her
spouse and dependants.
55
“..information about the contracts with appropriate
Government and any public company by the candidate,
his/her spouse and dependents directly or by Hindu
undivided family/trust/partnership firm(s)/private company
(companies) in which the candidate and his spouse and
dependents have a share or interest shall also be provided in
the affidavit in Form 26 prescribed under the Rules.”
66. In the light of the foregoing discussion, the information
such as the one required under the above-mentioned prayer is
certainly relevant information in the context of disqualification
on the ground of undue accretion of assets, therefore, we see
no objection for granting the relief as prayed for.
67. We are left with the reliefs sought by way of prayer No. 5
in I.A. No. 8 of 2016. The petitioner seeks Form 26 be
amended to provide certain further information. An analysis
of the information sought (as can be seen from the prayer)
indicates that all the information is in the context of
statutorily prescribed disqualifications under the RP Act of
1951. In our opinion, such information would certainly be
relevant and necessary for a voter to make an appropriate
choice at the time of the election whether to vote or not in
favour of a particular candidate. Therefore, all the six prayers
made in I.A. No. 8 are allowed.
56
68. The writ petition is allowed as indicated above, but, in
the circumstances, without any costs.
….....................................J.
(J. CHELAMESWAR)
….....................................J.
(S. ABDUL NAZEER)
New Delhi
February 16, 2018
