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.    

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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.

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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

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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.

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So also in the case of the offices of the President and Vice-

President.    

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;  

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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.   

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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

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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 Vice- President; the Election Commission.  13 Entry 37. Elections to the Legislature of the State subject to the provisions of any law made by  Parliament

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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

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“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.

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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;

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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 local- level 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

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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.”  

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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 above-

mentioned 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.

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(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)

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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.

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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

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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 non-

performing 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 well- known.  “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 rule- making 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 above-

mentioned 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)  

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, sub- section (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 to-  

xxx  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 non-

disclosure 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