Lok Prahari, through Its General Secretary S. N. Shukla vs Union of India & Others

72 – Conduct of Election Rules, 1961 – r 4A, Form 26 – Prevention of Corruption Act, 1988 – ss.13(1)(e), 13(2) – Election Laws – Electoral Reforms.

The Representation of the People Act, 1951 – s. 169 – Rule making power under, of Central Government – Discussed – Administrative Law – Subordinate Legislation. Writs – When cannot be issued – Writ petition filed inter alia seeking direction to respondents for amendment of provisions of the 1951 Act – Held: No writ could be issued to compel any legislative body to make a law – Hence, prayers seeking directions to respondents for amendment of the provisions of the 1951 Act cannot be granted – The Representation of the People Act, 1951.

Allowing the writ petition, the Court

HELD: 1.1 The Representation of the People Act, 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 disqualification for voting, obviously, referable to the authority of Parliament under Article 326. The expression ‘disqualified’ is defined under Section 7(b) of the RP Act of 1951. [Paras 11, 12] [908-F-G]

1.2 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 form. As a corollary to the said mandate, Rule 4A was inserted in the Conduct of Election 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 their spouses and dependants (collectively referred as ASSOCIATES). [Para 26] [915-F; 916A-B] OFFENCE:

1.3 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) 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), 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. Section 8(1)(m) of the RP Act of 1951 declares that a person convicted for an offence under the PC Act, 1988 is disqualified both for being chosen or continuing as a LEGISLATOR (the members of the Parliament and the State Legislatures referred to as “LEGISLATORS”). [Para 35] [924E; 925-A-B] DISQUALIFICATION:

1.4 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 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. [Para 37] [925-C-D; 926-A-B]

1.5 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 Articles stipulate that the Parliament may, by or under any law, prescribe disqualifications other than those specified thereunder. [Para 38] [926-B-C]

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

1.6 Manifold and undue accretion of assets 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) 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 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. There is no 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. 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 Act of 1951. 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. Logically, there is 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 prosecution for an offence and also simultaneously form the basis for disciplinary action under the relevant Rules governing the service of an employee. [Paras 40-42] [927-C-G; 928-A-D]

1.7 It is always open to the LEGISLATURE to declare that any member thereof is unfit to continue as such. If a temporary disqualification 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”. [Paras 43, 46] [928-D; 929-E-G] Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others (2007) 3 SCC 184 : [2007] 1 SCR 317– relied on. INFORMATION TO THE VOTER:

1.8 The information regarding the sources of income of the CANDIDATES and their ASSOCIATES, would 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. Collection of such data can be undertaken by any governmental agency or even the Election Commission. The enforcement of such a fundamental right needs no 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. 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, 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 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. [Paras 47-49] [929-H; 930-A, D, F-G; 931-A-B; 932-A-B]

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

1.9 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, is whether it requires a statutory sanction to create such compulsion. When the scheme of the Constitution is analysed, 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 basis. 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 of the Constitution made a declaration to that effect and also stipulated the manner in which such rights could be controlled or regulated. Article 102 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. 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 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. Form 26 is only indicative of the information which is required to enable the voter to make an informed choice. And there is no legal bar in Section 169(2) to fetter the Central Government’s rule making power from making such information available. [Para 50] [932-C-G; 933-A-C]

1.10 Under Section 33 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 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. [Para 51] [933-D]

1.11 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 directions in the nature of mandamus to consider amendment of the RP Act of 1951 cannot be granted. In prayer 1(1), 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 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. 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. 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. There is no reason for declining prayer 1(1). [Paras 53, 54] [934-B-E; 935-A-B]

1.12 In the light of the law declared by this Court in ADR case and PUCL case, there is no legal or normative impediment nor has any tenable legal objection been raised by any one of the respondents, for issuance of the direction relating to the changes in FORM 26 (declaration by the CANDIDATES). Therefore, the 1(1) should be granted and is accordingly granted. It is directed 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. [Para 55] [935C, F] People’s Union for Civil Liberties (PUCL) & Another v. Union of India & Another (2003) 4 SCC 399 – relied on.

1.13 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. Note has already been taken 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.” 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 citizen is enabled/empowered to make rational choices as regards those holding or aspiring to hold public offices, of the State. [Paras 56-58] [936-A-E]

1.14 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. 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 such LEGISLATOR to take an informed and appropriate decision, if such LEGISLATOR chooses to contest any election for any legislative body in future. For the reasons mentioned above, prayer 1(3)(ii) of the 1st respondent is allowed. [Paras 59-61] [936F-H; 937-A-B]

1.15 In prayer 1(3)(i), 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. 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. Therefore, this relief is declined at this stage. [Para 62] [937-C-D]

1.16 Prayer no.2 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. 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. Therefore, prayer No.2 is allowed. [Paras 63, 64] [937-E; 938-B; 939-E]

1.17 In 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. 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, there is no objection for granting the relief as prayed for. [Para 65-66] [939-F-H]

1.18 Further, the petitioner seeks Form 26 be amended to provide certain further information. An analysis of the information sought indicates that all the information is in the context of statutorily prescribed disqualifications under the RP Act of 1951. 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 by way of Prayer no. 5 in I.A. No. 8 are allowed. [Para 67] [939-A-B]

Samant N. Balkrishna & Another v. George Fernandez & Others, (1969) 3 SCC 238 : [1969] 3 SCR 603; P. V. Narasimha Rao v. State (1998) 4 SCC 626 : [1998] 2 SCR 870; Bharat Sanchar Nigam Limited vs. Telecom Regulatory Authority of India and Others (2014) 3 SCC

222 : [2013] 12 SCR 999; Emperor v. Sibnath Banerji (1944-45) 71 IA 241 : AIR 1945 PC 156; State of Bihar v. Project Uchcha Vidya, Shiksha Sangh (2006) 2 SCC

545 : [2006] 1 SCR 14; Bhuvan Mohan Patnaik & Others v. State of Andhra Pradesh (1975) 3 SCC 185 : [1975] 2 SCR 24; State of J&K v. Lakhwinder Kumar (2013) 6 SCC 333 : [2013] 2 SCR 1070 ; V.T Khanzode v. Reserve Bank of India (1982) 2 SCC 7 : [1982] 3 SCR 411; BSNL vs. TRAI (2014) 3 SCC 90; Afzal Ullah v. State of UP AIR 1964 SC 264 : [1964] SCR 991 – referred to.

J. K. Industries Limited &Anr vs. Union of India (2007)

13 SCC 673 : [2007] 12 SCR 136; Krishnamoorthy v. Sivakumar & Others (2015) 3 SCC 467 : [2015] 4 SCR 987 – relied on.