public interest litigation – changes in election processes – for mandatory injunction – Apex court allowed – 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 – A clean and fair electoral process is a sine qua non for any democracy. = 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? = 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.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO.784 OF 2015

LOK PRAHARI,

THROUGH ITS GENERAL SECRETARY S.N. SHUKLA … Petitioner

Versus

UNION OF INDIA & OTHERS … Respondents

J U D G M E N T

Chelameswar, J.

1. The petitioner is a registered society under the Societies

Registration Act. It is stated in the petition that most of the

members of the society are retired civil servants. In the past,

some of them have held important constitutional offices and,

therefore, they have the requisite locus standi. The

genuineness of their concern for the democracy of this

country, in our opinion, is beyond any doubt.

2

2. A clean and fair electoral process is a sine qua non for

any democracy. Rights and obligations associated with the

electoral process, engaged the attention of democratic civil

societies and their legislative bodies from time to time.

Regulation of the right to vote or the right to contest elections

and matters incidental thereto felt necessary. Democratic

societies experiment with various modules of electoral

processes in response to the felt necessities of the times.

3. When our Constitution was adopted, the framers of the

Constitution thought that some of the basic norms regarding

the electoral process, i.e. rights of voting or the right to contest

elections to various bodies established by the Constitution are

required to be spelt out in the Constitution itself. Our

Constitution, as originally enacted1, provided for elections to

the offices of President, Vice President, membership of the

Parliament, consisting two houses, the ‘Lok Sabha’ and the

‘Rajya Sabha’; and the membership of the legislature of the

various States, some of them unicameral and some bicameral.

1

Local bodies – Part IX of the Constitution which contains with provisions dealing with local bodies

including elections bodies came to be introduced by the Constitution (Seventy-third Amendment) Act, 1992.

3

Under Article 3242 an Election Commission was established

for the overall superintendence and control of such elections.

4. With reference to elections to each of the abovementioned

bodies or offices, the Constitution stipulates certain basic

norms, with respect to right to vote, the right to contest and

the limitations on such rights. Such norms vary with

reference to each of these offices or bodies. Citizenship of the

country is a default condition3 either for voting or contesting

an election to any one of the abovementioned bodies.

2 Article 324. Superintendence, direction and control of elections to be vested in an Election

Commission.- (1) The superintendence, direction and control of the preparation of the electoral rolls for,

and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the

offices of President and Vice-President held under this Constitution shall be vested in a Commission

(referred to in this Constitution as the Election Commission.

(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other

Election Commissioners, if any, as the President may from time to time fix and the appointment of the

Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law

made in that behalf by Parliament, be made by the President.

(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as

the Chairman of the Election Commission.

(4) Before each general election to the House of the People and to the Legislative Assembly of each State,

and before the first general election and thereafter before each biennial election to the Legislative Council

of each State having such Council, the President may also appoint after consultation with the Election

Commission such Regional Commissioners as he may consider necessary to assist the Election

Commission in the performance of the functions conferred on the Commission by clause (1).

(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office

of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule

determine:

Provided that the Chief Election Commissioner shall not be removed from his office except in like manner

and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election

Commissioner shall not be varied to his disadvantage after his appointment:

Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed

from office except on the recommendation of the Chief Election Commissioner.

(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make

available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the

discharge of the functions conferred on the Election Commission by clause (1).

3 Article 58. Qualifications for election as President.- (1) No person shall be eligible for election as

President unless he(a)

is a citizen of India,

(b) has completed the age of thirty five years, and

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

4

5. Article 3264 stipulates that the elections to the House of

the People and the legislative assemblies of the States shall be

on the basis of adult suffrage i.e. every person who is a citizen

of India and who is not less than 18 years of age on a date

specified by law shall be entitled to be registered as a voter at

any such election, with a further stipulation that such a right

is subject to disqualifications prescribed under the

Constitution, or by or under any law made by the appropriate

legislature. Article 326 is also specific about the grounds on

which a disqualification could be prescribed by the

appropriate legislature. They are non-residence, unsoundness

of mind and crime or corrupt or illegal practices. The right to

vote at an election to the Rajya Sabha and the Legislative

Council of a State are subject to certain further qualifications.

 

(2) A person shall not be eligible for election as President if he holds any office of profit under the

or the Government of any State or under any local or other authority subject to the control of any of the said

Governments.

Explanation For the purposes of this article, a person shall not be deemed to hold any office of profit

by reason only that he is the President or Vice President of the Union or the Governor of any State or is a

Minister either for the Union or for any State

Article 84. Qualification for membership of Parliament.- A person shall not be qualified to be chosen to

fill a seat in Parliament unless he— (a) is a citizen of India, and makes and subscribes before some person

authorised in that behalf by the Election Commission an oath or affirmation according to the form set out

for the purpose in the Third Schedule;

Article 173. Qualification for membership of the State Legislature. – A person shall not be qualified to

be chosen to fill a seat in the Legislature of a State unless he— (a) is a citizen of India, and makes and

subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation

according to the form set out for the purpose in the Third Schedule;

4 Article 326. Elections to the House of the People and to the Legislative Assemblies of States to be on

the basis of adult suffrage- The elections to the House of the People and to the Legislative Assembly of

every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and

who is not less than 2[eighteen years] of age on such date as may be fixed in that behalf by or under any

law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any

law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or

corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.

5

So also in the case of the offices of the President and VicePresident.

 

6. Every person, who is entitled to vote at an election to the

membership of the Parliament, is not automatically entitled to

become a member of the Parliament. Article 84(b)5 stipulates

any person seeking to become a member of House of People

(Lok Sabha) must be not less than 25 years of age and in the

case of Council of States (Rajya Sabha) not less than 30 years

of age. Similarly, Article 173(b)6 stipulates similar minimum

age requirements for membership of the Legislative Assemblies

and the Legislative Councils. Whereas, for the Presidency and

Vice-Presidency, the minimum age requirement of 35 years is

prescribed under Article 58(1)(b)7 and 66(3)(b)8.

7. Constitution also prescribes certain disqualifications for

contesting any election to any of the abovementioned bodies.

5 Article 84. Qualification for membership of Parliament- A person shall not be qualified to be chosen

to fill a seat in Parliament unless he—

(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat

in the House of the People, not less than twenty-five years of age;

6 Article 173. Qualification for membership of the State Legislature.- A person shall not be qualified to

be chosen to fill a seat in the Legislature of a State unless he—

(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and, in the

case of a seat in the Legislative Council, not less than thirty years of age;

7 Article 58. Qualifications for election as President. (1) No person shall be eligible for election as

President unless he—

(b) has completed the age of thirty-five years,

8 Article 66. Election of Vice President.- (3) No person shall be eligible for election as Vice-President

unless he—

(b) has completed the age of thirty-five years;

6

Under Article 102, a person is disqualified not only for being

chosen but also for continuing as a member of either House of

Parliament on various grounds.

“Article 102. Disqualifications for membership

(1) A person shall be disqualified for being chosen as, and for

being, a member of either House of Parliament(a)

if he holds any office of profit under the Government of

India or the Government of any State, other than an office

declared by Parliament by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a

competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired

the citizenship of a foreign State, or is under any

acknowledgement of allegiance or adherence to a foreign

State;

(e) if he is so disqualified by or under any law made by

Parliament.

(2) A person shall be disqualified for being a member of

either House of Parliament if he is so disqualified under the

Tenth Schedule.”

8. Article 191 9 stipulates similar disqualifications for the

membership of the State Legislatures. Article 58(1)(c)10 and

9 Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,

and for being, a member of the Legislative Assembly or Legislative Council of a State—

(a) if he holds any office of profit under the Government of India or the Government of any State specified

in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify

its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under

any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of

a State if he is so disqualified under the Tenth Schedule.

7

Article 66(3)(c)11 of the Constitution stipulates in the context of

President and Vice President that no person shall be eligible to

those offices unless a person is qualified for election as a

member of the House of the People and the Council of States

respectively. By a necessary implication, the various

qualifications and disqualifications stipulated under the

Constitution for the membership of those two houses also

become the qualifications and disqualifications for the offices

of President and Vice-President apart from the other

qualifications and disqualifications stipulated under the

Constitution.

9. Articles 102(e) and 191(e) authorise the Parliament to

make laws by or under which other disqualifications can be

prescribed to contest in an election to the Parliament or to the

State Legislature. Similarly, Articles 84(c) and 173(c) authorise

the Parliament to prescribe other qualifications (by or under

law) for securing the membership of the Parliament or the

Legislature of the State respectively.

10 Article 58. Qualifications for election as President. (1) No person shall be eligible for election as

President unless he—

(c) is qualified for election as a member of the House of the People. 11 Article 66. Election of Vice President. (3) No person shall be eligible for election as Vice-President

unless he(c)

is qualified for election as a member of the Council of States

8

10. Entry 72 12 of List I of the Seventh Schedule of the

Constitution of India and Entry 3713 of List II are the fields of

legislative authority which enable the Parliament and the State

Legislatures respectively to make laws indicated in the various

provisions mentioned above and other relevant provisions of

the Constitution such as Article 327.

11. In exercise of such power, Parliament made various

enactments regulating various aspects of the electoral process

to the various offices and bodies mentioned earlier. For the

present, we are only concerned with two enactments. The

Representation of the People Acts, 1950 and 1951 (hereafter

RP Act of 1950 or RP Act of 1951) which contain provisions

which elaborately deal with the electoral process to the

Parliament and the State Legislatures. It is sufficient for the

purpose of the present case to take note of the fact that RP Act

of 1951 contains various provisions in Chapter III of Part II

stipulating the disqualifications for membership of Parliament

and State Legislatures. They are Sections 8, 8A, 9, 9A, 10 and

10A. Chapter IV of Part II contains a provision stipulating a

12 Entry 72. Elections to Parliament, to the Legislatures of States and to the offices of President and VicePresident;

the Election Commission.

13 Entry 37. Elections to the Legislature of the State subject to the provisions of any law made by

Parliament

9

disqualification for voting, obviously, referable to the authority

of Parliament under Article 326.

12. The expression ‘disqualified’ is defined under Section 7(b)

of the RP Act of 1951 as follows:

“Section 7. Definitions. – In this Chapter, –

xxx xxx xxx xxx

(b) ‘disqualified’ means disqualified for being chosen as, and

for being, a member of either House of Parliament or of the

Legislative Assembly or Legislative Council of a State under

the provisions of this chapter, and on no other ground.”

13. Section 8 deals with the disqualifications which follow as

a consequence of conviction and imposition of the sentence of

imprisonment of a person for the various offences specified

thereunder. The period of disqualification under each of the

sub-sections, however, is stipulated to be six years since the

release of the convict from prison.

14. Section 8A declares that any person found guilty of a

corrupt practice by a High Court trying an election petition

shall be disqualified for a period not exceeding six years as

may be determined by the President of India. Section 123 of

the RP Act of 1951 defines corrupt practices. Ten corrupt

practices are enumerated therein. By definition each one of

them is capable of being committed only either by a

10

“candidate” 14 at an election or the “election agent” 15 of a

candidate or any other person with the consent of either the

candidate or the election agent of a candidate.

15. Section 9 disqualifies a person who having held an office

under the Government of India or under the Government of

any State, was dismissed for corruption or for disloyalty to the

State. This disqualification operates for five years from date of

such dismissal. Section 9A stipulates that a person shall be

disqualified to contest elections either to the Parliament or to

14 Candidate is defined under Section 79(b) of the Representation of the People Act, 1951 – “candidate”

means a person who has been or claims to have been duly nominated as a candidate at any election.

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

Election agent is not defined but Section 40 of the Representation of the People Act, 1951

stipulates:

“Election Agents.—A candidate at an election may appoint in the prescribed manner any one

person other than himself to be his election agent and when any such appointment is made, notice

of the appointment shall be given in the prescribed manner to the returning officer.”

15 Samant N. Balkrishna & Another v. George Fernandez & Others, (1969) 3 SCC 238

Para 25. Pausing here, we may view a little more closely the provisions bearing upon corrupt practices in

Section 100. There are many kinds of corrupt practices. They are defined in Section 123 of the Act and

we shall come to them later. But the corrupt practices are viewed separately according as to who commits

them. The first class consists of corrupt practices committed by the candidate or his election agent or any

other person with the consent of the candidate or his election agent. These, if established, avoid the

election without any further condition being fulfilled. Then there is the corrupt practice committed by an

agent other than an election agent. Here an additional fact has to be proved that the result of the election

was materially affected. We may attempt to put the same matter in easily understandable language. The

petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with

the consent of the candidate or his election agent, in which case he need not establish what the result of

the election would have been without the corrupt practice. The expression “Any other person” in this part

will include an agent other than an election agent. This is clear from a special provision later in the

section about an agent other than an election agent. The law then is this: If the petitioner does not prove a

corrupt practice by the candidate or his election agent or another person with the consent of the returned

candidate or his election agent but relies on a corrupt agent, he must additionally prove how the corrupt

practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt

practice on the part of the candidate or his election agent he must face this additional burden. The

definition of agent in this context is to be taken from Section 123 (Explanation) where it is provided that

an agent “includes an election agent, a polling agent and any person who is held to have acted as an agent

in connection with the election with the consent of the candidate.” In this explanation the mention of

“an election agent” would appear to be unnecessary because an election agent is the alter ego of the

candidate in the scheme of the Act and his acts are the acts of the candidate, consent or no consent

on the part of the candidate.

11

the State Legislature if “there subsists a contract entered into by

him” with the appropriate Government either for the supply of

goods or for execution of any work undertaken by the

Government. The expression “appropriate Government” is defined

under Section 7(a)16.

16. Chapter VIII of Part V of the RP Act of 1951 contains

provisions dealing with ‘election expenses’. Section 77 mandates

that every candidate in an election shall keep a separate and

correct account of all expenditure incurred by such candidate

either directly or through his election agents. Such details

shall pertain to the expenditure incurred between the date of

nomination of the candidate and the declaration of the election

result. Section 78 mandates that every contesting candidate

shall lodge with the district election officer a copy of the

account maintained by him as required under Section 77 of

the RP Act of 1951. Section 10A stipulates that the failure to

comply with the mandate of Section 78 renders the defaulters

disqualified.

16 Section 7(a). “appropriate Government” means in relation to any disqualification for being chosen as or

for being a member of either House of Parliament, the Central Government, and in relation to any

disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative

Council of a State, the State Government;

12

17. Section 123(6) of the RP Act of 1951 declares “the incurring

or authorizing of expenditure in contravention of section 77” to be a

corrupt practice.

18. Electoral process is the foundation of all democratic

forms of Government. The framers of the Constitution were

aware of the fact that no election process can be infallible nor

can any election be absolutely pure. Therefore, there are

bound to be disputes regarding elections.

19. Hence, Article 329(b) of the Constitution stipulates –

“Article 329. Bar to interference by courts in electoral

matters.—Notwithstanding anything in this Constitution

***** ***** ***** ***** *****

(b) No election to either House of Parliament or to the House

or either House of the Legislature of a State shall be called in

question except by an election petition presented to such

authority and in such manner as may be provided for by or

under any law made by the appropriate Legislature.”

While the Article contemplates resolution of the electoral

disputes by election petitions, it prohibits the examination of

such disputes before conclusion of the election, obviously to

ensure that the electoral process is not unduly hampered

while it is in progress; essentially a balance between order and

chaos.

13

20. Pursuant to the command of Article 329(b), provisions are

made in Part VI of the RP Act of 1951 which deal with disputes

regarding elections. Section 10017 stipulates various grounds

on which an election of a returned candidate shall be declared

to be void. Such a declaration follows automatically on the

proof of the facts constituting any one of the grounds

mentioned in Section 100(1)(a), (b) and (c). One of the grounds

is that if the High Court comes to the conclusion that the

returned candidate has committed a corrupt practice either

directly or through his ‘election agents’18.

17 Section 100. Grounds for declaring election to be void.— (1) Subject to the provisions of sub-section

(2) if the High Court is of opinion—

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen

to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of

1963); or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any

other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially

affected—

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

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other

than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is

void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or

orders made under this Act, the High Court shall declare the election of the returned candidate to be

void, If in the opinion of the High Court, a returned candidate has been guilty by an agent other

than his election agent, of any corrupt practice but the High Court is satisfied—

(a) that no such corrupt practice was committed at the election by the candidate or his election

agent, and every such corrupt practice was committed contrary to the orders, and without the

consent, of the candidate or his election agent;

(c) that the candidate and his election agent took all reasonable means for preventing the

commission of corrupt practices at the election; and

(d) that in all other respects the election was free from any corrupt practice on the part of the

candidate or any of his agents, then the High Court may decide that the election of the

returned candidate is not void.” 18 Section 100(1)(b) of the RP Act of 1951

14

21. In so far as the ground specified in sub-section 1(d),

election of a returned candidate can be declared to be void only

if it is established that (i) any one of the events specified

therein did occur and (ii) such an event materially affected the

result of the election insofar as it concerns the returned

candidate.

22. The experience of the first 50 years of the functioning of

democracy in this country disclosed some undesirable trends

that have crept into its working. Various bodies such as the

Law Commission of India and a Committee popularly known

as the Vohra Committee19 constituted by the Government of

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

SCC 294

Para 2 … It is pointed out that the Law Commission has made recommendation for debarring a

candidate from contesting an election if charges have been framed against him by a court in respect of

certain offences and necessity for a candidate seeking to contest election to furnish details regarding

criminal cases, if any, pending against him. It has also suggested that true and correct statement of assets

owned by the candidate, his/her spouse and dependent relations should also be disclosed. The petitioner

has also referred para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of

Home Affairs, which reads as follows:

“6.2. Like the Director CBI, DIB has also stated that there has been a rapid spread and growth of

criminal gangs, armed senas, drug mafias, smuggling gangs, drug peddlers and economic lobbies in the

country which have, over the years, developed an extensive network of contacts with the

bureaucrats/government functionaries at the local levels, politicians, media persons and strategically

located individuals in the non-State sector. Some of these syndicates also have international linkages,

including the foreign intelligence agencies. In this context DIB has given the following examples:

(i) In certain States like Bihar, Haryana and U.P., these gangs enjoy the patronage of locallevel

politicians, cutting across party lines and the protection of governmental functionaries. Some

political leaders become the leaders of these gangs, armed senas and over the years get themselves

elected to local bodies, State Assemblies and the national Parliament. Resultantly, such elements

have acquired considerable political clout seriously jeopardising the smooth functioning of the

administration and the safety of life and property of the common man causing a sense of despair

and alienation among the people.

(ii) The big smuggling syndicates having international linkages have spread into and infected

the various economic and financial activities, including hawala transactions, circulation of black

money and operations of a vicious parallel economy causing serious damage to the economic fibre

15

India etc. pointed out various shortcomings in the working of

the democracy and the need to address those concerns.

23. This Court in Union of India v. Association for

Democratic Reforms & Another, (2002) 5 SCC 294,

hereafter referred to as “ADR case” opined that “voter speaks

out or expresses by casting vote” and such a speech is part of the

fundamental right under Article 19(1)(a). This Court after

taking into consideration various aspects of the matter

including the above-mentioned Reports and other materials,

held that for the effective exercise of his fundamental right, the

voter is entitled to have all relevant information about the

candidates at an election. This Court identified some of the

important aspects of such information. They are (i)

candidate’s criminal antecedents (if any), (ii) assets and

liabilities, (iii) educational qualifications. This Court also

recorded that a Parliamentary Committee headed by Shri

Indrajit Gupta submitted a Report in 1998 on the question of

State funding of elections, emphasizing the need of immediate

overhauling of the electoral process.

 

of the country. These syndicates have acquired substantial financial and muscle power and social

respectability and have successfully corrupted the government machinery at all levels and yield

enough influence to make the task of investigating and prosecuting agencies extremely difficult;

even the members of the judicial system have not escaped the embrace of the mafia.”

16

This Court opined that since the law made by Parliament

did not make appropriate provisions compelling candidates at

an election, either to the Parliament or the legislative bodies of

the State, to disclose information regarding the abovementioned

factors, Election Commission in exercise of its

power under Article 324 of the Constitution of India is

required to call upon the candidates to furnish the necessary

information.

This Court directed disclosure of various facts including

information regarding the assets and liabilities of the

candidates at an election and their respective spouses and

dependents (collectively hereafter referred to for the sake of

convenience as ASSOCIATES):

“48. The Election Commission is directed to call for

information on affidavit by issuing necessary order in exercise

of its power under Article 324 of the Constitution of India from

each candidate seeking election to Parliament or a State

Legislature as a necessary part of his nomination paper,

furnishing therein, information on the following aspects in

relation to his/her candidature:

(1) Whether the candidate is

convicted/acquitted/discharged of any criminal offence

in the past – if any, whether he is punished with

imprisonment or fine.

(2) Prior to six months of filing of nomination, whether

the candidate is accused in any pending case, of any

offence punishable with imprisonment for two years or

more, and in which charge is framed or cognizance is

taken by the court of law. If so, the details thereof.

17

(3) The assets (immovable, movable, bank balance, etc.)

of a candidate and of his/her spouse and that of

dependants.

(4) Liabilities, if any, particularly whether there are any

overdues of any public financial institution or

government dues.

(5) The educational qualifications of the candidate.”

24. Subsequent20 to the said judgment, Parliament chose to

amend the RP Act of 1951 by introducing Section 33A.

Parliament provided for the disclosure of certain limited

information regarding criminal antecedents of the candidates

at an election, but not of all the information as directed by this

Court (in para 48) of the abovementioned judgment.

On the other hand, Parliament made a further

declaration under Section 33B.

“33B Candidate to furnish information only under the

Act and the rules —Notwithstanding anything contained in

any judgment, decree or order of any court or any direction,

order or any other instruction issued by the Election

Commission, no candidate shall be liable to disclose or

furnish any such information, in respect of his election,

which is not required to be disclosed or furnished under this

Act or the rules made thereunder.”

In other words, Parliament declared that other

information required to be declared by the candidate by virtue

of the directions issued in Union of India v. Association for

20 Judgment is dated 02.05.2002 and the Amendment introducing Section 33A is dated 28.12.2002 (By The

Representation of the People (Third Amendment) Act, 1951 (Act No.72 of 2002)

18

Democratic Reforms & Another, (2002) 5 SCC 294 need not

be given.

25. The constitutionality of the said provision fell for the

consideration before this Court in People’s Union for Civil

Liberties (PUCL) & Another v. Union of India & Another,

(2003) 4 SCC 399, hereafter referred to as “PUCL case”. This

Court held Section 33B to be beyond the legislative

competence of the Parliament. This Court recorded 21 that

Section 33A fails to ensure complete compliance with the

directions issued by this Court in ADR case.

26. Be that as it may, Section 33A mandates that a

candidate is also required to deliver to the returning officer at

the time of the filing of nomination an affidavit sworn by the

candidate in the prescribed form22. As a corollary to the said

mandate, Rule 4A23 was inserted in the Conduct of Election

21 “78. … The Amended Act does not wholly cover the directions issued by this Court.

On the contrary, it provides that a candidate would not be bound to furnish certain

information as directed by this Court.”

22 Section 33A. Right to information.—

(2) The candidate of his proposer, as the case may be, shall, at the time of delivering to the returning officer

the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the

candidate in a prescribed form very fine the information specified in sub-section (1).

23 Rule 4A. Form of affidavit to be filed at the time of delivering nomination paper.—The candidate or

his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination

paper under subsection (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate

before a Magistrate of the first class or a Notary in Form 26.

19

Rules, 1961 (hereafter referred to as the RULES) stipulating

that an affidavit in the Form No.26 is required to be filed. The

form, as originally prescribed under Rule 4A w.e.f. 3.9.2002,

stood substituted w.e.f. 1.8.2012. The form, inter alia, requires

information regarding the Permanent Account Numbers (PAN)

given by the Income Tax authorities to the CANDIDATE. It

also requires details of the assets (both movable and

immovable) of the ASSOCIATES. The other details required to

be given in the affidavit may not be relevant for the purpose of

the present case.

27. The petitioner believes that certain further steps are

required to be taken for improving the electoral system in

order to strengthen democracy. According to the petitioner,

the assets of some of the members of the Parliament and the

State legislatures (hereafter referred to as “LEGISLATORS”)

and their ASSOCIATES grew disproportionately to their known

sources of income (hereafter referred to as UNDUE

ACCRETION OF ASSETS). The petitioner made representations

to bodies like the Central Board of Direct Taxes and the

Election Commission of India requesting them to examine the

matter and take appropriate remedial measures. It appears

20

that the petitioner annexed a (sample) list of certain

LEGISLATORS whose assets increased more than 5 times after

they got elected for the first time to the concerned legislative

bodies. The petitioner believes that there is a need to

periodically examine the sources of income of the

LEGISLATORS and their ASSOCIATES to ascertain whether

there is an UNDUE ACCRETION OF ASSETS. In the

representation to the Chairperson of CBDT dated 30 June

2015, the petitioner stated, inter alia,

“… As a result, the wealth of politicians has been growing by

leaps and bounds at the expense of “We the People”.

Evidently, no improvement in system and governance is

possible unless the role of money power in winning elections

is curbed and the public representatives who misuse their

position for amassing wealth are brought to book.

… A list of re-elected MPs and MLAs whose assets are

increased more than five times (500%) after the

previous election, provided by the ADR, is annexed

herewith. Detailed information about the total income

shown in the last Income Tax Return of these

MPs/MLAs and their spouses and dependents is

available in the affidavit in Form 26 filled with the

nomination paper at the time of last election. These

affidavits are available on the websites of the Election

Commission of India as well as Chief Electoral Officers

of the States. All that is required to be seen is as to

whether the increase in assets is proportionate to the

increase in income from the known sources in the

intervening period. The CBDT is best equipped to do

this exercise as part of responsibility cast upon them

under the law. After completion of this exercise

necessary follow up can be taken to serve as a lesson

to them and deterrent to others to desist from

converting public service into private enterprise.”

21

28. It is in this background, the instant petition came to be

filed wherein the petitioner alleges –

“That in view of the reluctance of the Parliament to act on

their 18 year old resolution referred to above and the failure

of the respondents to even respond, leave alone meaningfully

effectuate implementation of the judgments of this Hon’ble

Court in Association of Democratic Reforms (AIR 2002 SC

2112) People’s Union for Civil Liberties (PUCL) (AIR 2003 SC

2363), Resurgence India vs. Election Commission of India

and Another (AIR 2014 SC 344) and Krishnamoorthy Vs.

Sivakumar (AIR 2015 SC 1921) in this regard for restoring

and maintaining the purity of our highest legislative bodies

in accordance with the intentions of the founding fathers of

the Constitution and the concern expressed by the framers

of the Representation of the People Act, 1951 intervention of

this Hon’ble Court has become necessary in terms of the

following observation of this Hon’ble Court in the case of

Vineet Narain, (1998) 1 SCC 226 (para 49).”

in order to justify their approaching this court for the various

reliefs sought in the writ petition. They are:

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

mandamus –

(1) to respondents no.1 and 2 to make necessary

changes in the Form 26 prescribed under Rule

4A of the Conduct of Election Rules, 1961

keeping in view the suggestion in para 38 of the

WP;

(2) to respondent no.1 to consider suitable

amendment in the Representation of the People

Act 1951 to provide for rejection of nomination

papers of the candidates and disqualification of

MPs/MLAs/MLCs deliberately furnishing wrong

information about their assets in the affidavit in

Form 26 at the time of filing of the nomination;

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

conduct inquiry/investigation into

disproportionate increase in the assets of

MPs/MLAs/MLCs included in list in

Annexure P6 to the WP,

22

(ii) have a permanent mechanism to take

similar action in respect of

MPs/MLAs/MLCs whose assets increase

by more than 100% by the next election,

(iii) fast track corruption cases against

MPs/MLAs/MLCs to ensure their disposal

within one year.

2. declare that non disclosure of assets and sources of

income of self, spouse and dependents by a candidate

would amount to undue influence and thereby,

corruption and as such election of such a candidate

can be declared null and void under Section 100(1)(b)

of the RP Act of 1951 in terms of the judgment

reported in AIR 2015 SC 1921.

3. issue a writ, order or direction in the nature of

mandamus to the respondents to consider amending

Section 9-A of the Act to include contracts with

appropriate Government and any public company by

the Hindu undivided family/trust/partnership

firm(s)/private company (companies) in which the

candidate and his spouse and dependents have a

share or interest.

4. issue a writ, order or direction in the nature of

mandamus to the respondents that pending

amendment in Section 9-A of the Act, information

about the contracts with appropriate Government and

any public company by the candidate, his/her spouse

and dependents directly or by Hindu undivided

family/trust/partnership firm(s)/private company

(companies) in which the candidate and his spouse

and dependents have a share or interest shall also be

provided in the affidavit in Form 26 prescribed under

the Rules.”

5. By way of I.A. 8/2016 the Petitioner prayed that an

amendment be made to the Writ Petition for the

addition of the following prayers: As Form 26

prescribed under the Rules provides information only

about possible disqualification on the basis of

conviction in criminal cases, mentioned in Section 8 of

the RP Act of 1951, it does not contain information on

the provisions in Section 8-A, 9, 9A, 10, and 10-A

regarding disqualification in Chapter III of the said Act

which may render a candidate ineligible to contest.

The Petitioner therefore, prays that Form 26 may be

further amended to provide the following information

23

I. Whether the candidate was found guilty of a

corrupt practice u/S 99 of the RP Act of 1951?

II. If yes, the decision of the President under

Section 8-A(3) of the Act on the question of his

disqualification, along with the date of the

decision.

III. Whether the candidate was dismissed for

corruption or for disloyalty while holding an

office under the Government of India or the

Government of any State?

IV. If, yes the decision of such dismissal as per the

certificate issued by the EC under Section 9 of

the Act.

V. Whether the candidate is a managing agent,

manager or Secretary of any company or

Corporation (other than co-operative society) in

the capital of which the appropriate government

has not less than twenty-five percent share?

VI. Whether the candidate has lodged an account of

election expenses in respect of the last election

contested by him within the time and in the

manner required by or under the RP Act of

1951?

29. The 2nd respondent [Election Commission of India (ECI)]

filed a counter affidavit supporting the case of the petitioner

insofar as the prayer with respect to the need to obligate the

CANDIDATES to disclose their sources of income etc.

“Para 3. Since the prayers made in the accompanying PIL

are not adversarial, the answering Respondent No.2 –

Election Commission of India (ECI) supports the cause

espoused by the Petitioner organization, which is a step

ahead towards a (i) healthier democracy, (ii) in furtherance of

level playing field for participative democracy, and (iii) free

and fair elections. The ECI supports the prayer No.1 as it

has already written to Ministry of Law and Justice to Amend

the Form 26 for including the source of income of candidate

and spouse vide letter no.3/4/ECI/LET/FUJC/JUD/

SDR/VOL-I/2016 dated 07.09.2016.”

In substance both the petitioner and the Election Commission

believe that it is time to cleanse the Augean stable.

24

30. UNDUE ACCRETION OF ASSETS of LEGISLATORS and

their ASSOCIATES is certainly a matter which should alarm

the citizens and voters of any truly democratic society. Such

phenomenon is a sure indicator of the beginning of a failing

democracy. If left unattended it would inevitably lead to the

destruction of democracy and pave the way for the rule of

mafia. Democracies with higher levels of energy have already

taken note of the problem and addressed it. Unfortunately, in

our country, neither the Parliament nor the Election

Commission of India paid any attention to the problem so far.

This Court in ADR case took note of the fact that in certain

democratic countries, laws exist 24 compelling legislators,

officers and employees of the State to periodically make

financial disclosure statements. But this Court did not issue

any further direction in that regard. Hence the present writ

petition.

31. Undue accumulation of wealth in the hands of any

individual would not be conducive to the general welfare of the

24 United States of America enacted a law known as Ethics in Government Act, 1978 which was further

amended in 1989. “Ethics Manual for Members, Employees and Officers of the US House of

Representatives” indicates that such disclosure provisions were enacted to “monitor and deter possible

conflicts of interests”.

25

society. It is the political belief underlying the declaration of

the Preamble of the Constitution that India should be a

Socialistic Republic. Articles 38 and 39 of our Constitution

declare that the State shall direct its policy towards securing

that the ownership and control of material resources of the

community are distributed so as to best subserve the common

good and guaranteeing that the economic system does not

result in the concentration of wealth and means of production

to the common detriment. In our opinion, such declarations

take within their sweep the requirement of taking appropriate

measures to ensure that LEGISLATORS and the ASSOCIATES

do not take undue advantage of their constitutional status

afforded by the membership of the LEGISLATURE enabling the

LEGISLATOR to have access to the power of the State.

Accumulation of wealth in the hands of elected representatives

of the people without any known or by questionable sources of

income paves way for the rule of mafia substituting the rule of

law. In this regard, both the petitioner and the 2nd respondent

are ad idem. The 2nd respondent in its counter stated:

“Para 4. The increasing role of money power in elections is

too well known and is one of the maladies which sometimes

reduces the process of election into a mere farce by placing

some privileged candidates with financial resources in a

distinctly advantageous position as compared to other

26

candidates. The result of such an election cannot reflect the

true choice of the people. The system also sometimes

deprives qualified and able persons of the prerogative to

represent masses.”

32. If assets of a LEGISLATOR or his/her ASSOCIATES

increase without bearing any relationship to their known

sources of income, the only logical inference that can be drawn

is that there is some abuse 25 of the LEGISLATOR’s

Constitutional Office. Something which should be

fundamentally unacceptable in any civilized society and

antithetical to a constitutional Government. It is a

phenomenon inconsistent with the principle of the Rule of Law

and a universally accepted Code of Conduct expected of the

holder of a public office in a Constitutional democracy.

Cromwell declared that such people are “enemies to all good

governments”. The framers of the Constitution and the

Parliament too believed so. The makers of the Constitution

gave sufficient indication of that belief when they provided

under Articles 102(1)(a) and 191(1)(a) that holding of any office

of profit would disqualify a person either to become or

continue to be a LEGISLATOR. It is that belief which

25 “behind every great fortune lies a great crime” – BALZAC

27

prompted the Parliament to make the prevention of corruption

laws.

33. The most crude process by which a LEGISLATOR or his

ASSOCIATES could accumulate assets is by resorting to

activities which constitute offences under the Prevention of

Corruption Act, 198826 (hereafter the PC Act). Gold is their

God!

Abnormal growth of assets of a LEGISLATOR or his

ASSOCIATES need not always be a consequence of such illegal

activity. It could be the result of activities which are improper,

i.e. activities which may or may not constitute offences either

under the PC Act or any other law but are inconsistent with

the basic constitutional obligations flowing from the nature of

the office of a LEGISLATOR. They are deputed by the people

to get grievances redressed. But they become the grievance.

26 Section 7 of the PC Act.

“Public servant taking gratification other than legal remuneration in respect of an official act.—

Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to

obtain from any person, for himself or for any other person, any gratification whatever, other than legal

remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or

forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for

rendering or attempting to render any service or disservice to any person, with the Central Government or

any State Government or Parliament or the Legislature of any State or with any local authority,

corporation or Government company referred to in clause (c) of section 2, or with any public servant,

whether named or otherwise, shall be punishable with imprisonment which shall be not less than three

years but which may extend to seven years and shall also be liable to fine.”

28

(i) There are known cases of availing of huge amount of

loans for allegedly commercial purposes from public

financial institutions by LEGISLATORS or their

ASSOCIATES either directly or through bodies corporate

which are controlled by them; a notorious fact in a good

number of cases. Such loan accounts become nonperforming

assets 27 (NPAs) within the meaning of

SARFAESI ACT in the hands of the financial institutions

which advance loans. It is equally a widely prevalent

phenomenon that borrowers (LEGISLATORS or even

others) whose accounts have become NPAs are able to

secure fresh loans in huge amounts either from the very

same or other financial institutions.

(ii) Securing of contracts of high monetary value either from

Government (Central or State) or other bodies corporate

which are controlled by Government is another activity

which enables LEGISLATORS and their ASSOCIATES to

acquire huge assets. It is worth mentioning here that

27 Section 2(o) “non-performing asset” means an asset or account of a borrower, which has been classified

by a bank or financial institution as sub-standard, doubtful or loss asset,

(a) in case such bank or financial institution is administered or regulated by an authority or body

established, constituted or appointed by any law for the time being in force, in accordance with

the directions or guidelines relating to assets classifications issued by such authority or body;

(b) in any other case, in accordance with the directions or guidelines relating to assets

classifications issued by the Reserve Bank;”

29

Section 7(d)28 of the RP Act of 1951 initially provided that

any person who has a share or interest in a contract for

the supply of goods or for the execution of any works or

performance of any services either by himself or through

any person or body of persons in trust for him or for his

benefit etc. is disqualified. However, by amendment of

Act 58 of 1958, the said provision was dropped and

Section 9A 29 was introduced which enables the

ASSOCIATES of the LEGISLATORS either directly or

through a body corporate to acquire such contracts.

Abnormal increase in the personal assets of the

LEGISLATORS and their ASSOCIATES is required to be

examined in juxtaposition to the above mentioned activities.

Further, it is also necessary to examine whether such benefits

28 Section 7. Disqualification for membership of Parliament or of a State Legislature – A person shall

be disqualified for being chosen as, and for being, a member of either House of Parliament or of the

Legislative Assembly or Legislative Council of the state –

(a) xxxxx xxxxxx xxxxxx xxxxxx

(b) xxxxx xxxxxx xxxxxx xxxxxx

(c) xxxxx xxxxxx xxxxxx xxxxxx

(d) If, whether, by himself or by any person or body of person in trust for him or for his benefit or on

his account, he has any share or interest in a contract for the supply of goods to, or for the

execution of any works or the performance of any services undertaken by the appropriate

Government.

(e) xxxxx xxxxxx xxxxxx xxxxxx

(f) xxxxx xxxxxx xxxxxx xxxxxx 29 Section 9A. Disqualification for Government contracts etc.- A person shall be disqualified if, and for

so long as, there subsists a contract entered into by him in the course of his trade or business with the

appropriate government for the supply of goods to, or for the execution of any works, undertaken by that

government.

30

were received by taking undue advantage of the office of the

LEGISLATOR.

34. The question is how to ensure compliance with the

constitutional goals enshrined in Articles 38 and 39 in the

context of the problem on hand.

POSSIBLE SOLUTIONS:

(1) making of laws which render such undue

accumulation of wealth an offence;

(2) disqualifying LEGISLATORS who have acquired

wealth through unconstitutional means, from

continuing as or seeking to get re-elected as

LEGISLATORS; and

(3) making it known to the electorate to enable them to

make a choice whether such LEGISLATORS should

be given a further opportunity.

Whatever be the best solution out of the abovementioned

three possibilities, it requires collection of data regarding the

financial status of the LEGISLATORS and their ASSOCIATES

and examining the same to ascertain whether there is an

impermissible accumulation of wealth in their hands.

31

OFFENCE:

35. Provisions already exist in the Prevention of Corruption

Act, 1988 (hereafter the PC Act) specifying various activities

enumerated therein to be offences. For example: Under

Section 13(1)(e)30 of the PC Act, it is misconduct for a public

servant to be in possession either personally or through some

other person, “of pecuniary resources or property disproportionate to

his known sources of income.” Under Section 13(2) 31 , such a

misconduct is an offence punishable with imprisonment for a

period up to 10 years and also liable to fine.

This Court has already held that a LEGISLATOR is a

public servant 32 . Section 8(1)(m) 33 of the RP Act of 1951

30 13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of

criminal misconduct,

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself

or for any other person any gratification other than legal remuneration as a motive or reward such as is

mentioned in section 7; or

xxxxxx xxxxx xxxxxx xxxxx xxxxxx xxxxxx

or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office,

been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or

property disproportionate to his known sources of income.

Explanation.—For the purposes of this section, “known sources of income” means income received from

any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules

or orders for the time being applicable to a public servant.

31 Section 13(2) – Any public servant who commits criminal misconduct shall be punishable with

imprisonment for a term which shall be not less than four years but which may extend to ten years and shall

also be liable to fine.

32 P. V. Narasimha Rao v. State, (1998) 4 SCC 626

“Para 85. Having considered the submissions of the learned counsel on the meaning of the expression

“public servant” contained in Section 2(c) of the 1988 Act, we are of the view that a Member of

Parliament is a public servant for the purpose of the 1988 Act.” 33 “Section 8. Disqualification on conviction for certain offences.—(1) A person convicted of an offence

punishable under(m)

the Prevention of Corruption Act, 1988 (49 of 1988);

shall be disqualified, where the convicted person is sentenced to(i)

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

32

declares34 that a person convicted for an offence under the PC

Act, 1988 is disqualified35 both for being chosen or continuing

as a LEGISLATOR.

DISQUALIFICATION:

36. We now deal with the question of disqualifying

LEGISLATORS either from continuing as LEGISLATORS or

from getting re-elected to any legislative body on the ground

that they or their ASSOCIATES have acquired assets which

are disproportionate to their known sources of income.

37. We have already noted that under Section 8(1)(m) of the

RP Act of 1951, it is provided that persons convicted and

sentenced to imprisonment for not less than 6 months for

offences under the provisions of various enumerated offences

under Section 8 of the RP Act of 1951 are disqualified either

 

(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a

further period of six years since his release.”

34 But the difficulty lies in initiating the prosecution and obtaining proof of the fact that a LEGISLATOR

either by himself or through his ASSOCIATES acquired assets (during the incumbency as LEGISLATOR)

which are disproportionate to his known sources of the income. Initiation of investigation and prosecution

for establishing the occurrence of the offences under the PC Act and proof of the guilt are riddled with

procedural constraints and political obstacles and dis-prudential difficulties.

It becomes a more complicated and difficult task when the accused himself happens to be a law

maker/LEGISLATOR. The history of this country during the last 70 years speaks eloquently how

unsuccessful the State has been in bringing to book the LEGISLATORS with questionable financial

integrity. The reasons are many. Low level efficiency of the State machinery (both investigating and

prosecuting agencies) and the legal system, lack of political will are some of the known reasons. Criminal

jurisprudence gives a great deal of benefit of doubt to an accused person and expects the State to prove the

guilt of accused beyond all reasonable doubt.

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

“disqualified” means disqualified for being chosen as, and for being, a member of either

House of Parliament or of the Legislative Assembly or Legislative Council of a State.”

33

for being chosen or continuing as a LEGISLATOR. The

petitioner seeks such a disqualification to be imposed even in

the absence of a conviction under the provisions of the PC Act.

38. Parliament has prescribed various disqualifications in

Chapter III of Part II of the RP Act of 1951 (Sections 8, 8A, 9,

9A, 10 and 10A). Each of those disqualifications arises out of

various factors specified under each of those sections. Undue

accumulation of wealth (assets of the LEGISLATORS) is not

one of the grounds specified either under any of the

abovementioned provisions or under Articles 102 and 191 of

the Constitution which stipulate some of the disqualifications.

However, both the Articles36 stipulate that the Parliament may,

by or under any law, prescribe disqualifications other than

those specified thereunder.

39. The distinction between something done by a law and

done under a law fell for consideration of this court in several

cases commencing from Dr. Indramani Pyarelal Gupta &

36 Article 102. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for

being, a member of either House of Parliament—

xxx xxx xxx xxx

(e) if he is so disqualified by or under any law made by Parliament.

Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for

being, a member of the Legislative Assembly or Legislative Council of a State—

xxx xxx xxx xxx

(e) if he is so disqualified by or under any law made by Parliament.

34

others vs. W.R. Natu & others, AIR 1963 SC 27437 and a

constitution bench of this Court held at para 15:

“……. The meaning of the words, “under the Act” is wellknown.

“By” an Act would mean by a provision directly

enacted in the statute in question and which is gatherable

from its express language or by necessary implication

therefrom. The words “under the Act” would, in that context

signify what is not directly to be found in the statute itself

but is conferred or imposed by virtue of powers enabling this

to be done; in other words, bye-laws made by a subordinate

law-making authority which is empowered to do so by the

parent Act. The distinction is thus between what is directly

done by the enactment and what is done indirectly by rulemaking

authorities which are vested with powers in that

behalf by the Act. ……….. That in such a sense bye-laws

would be subordinate legislation “under the Act” is clear

from the terms of Ss.11 and 12 themselves.”

We are of the opinion that the ratio of the judgment applies in

all force to the interpretation of Articles 102(1)(e) and 191(1)(e).

40. Manifold and undue accretion of assets of LEGISLATORS

or their ASSOCIATES by itself might be a good ground for

disqualifying a person either to be a LEGISLATOR or for

seeking to get re-elected as a LEGISLATOR. Statutes made by

the Parliament are silent in this regard. But Section 169(1)38

of the RP Act of 1951 authorises the central government to

make rules for carrying out the purposes of the Act. If the

nation believes that those who are elected to its legislative

37 See also Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority of India and Others, (2014) 3 SCC

222, para 90.

38 Section 169. Power to make rules.—(1) The Central Government may, after consulting the Election

Commission, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

35

bodies ought not to take undue advantage of their election to

the LEGISLATURE for accumulation of wealth by resorting to

means, which are inconsistent with the letter and spirit of the

Constitution and also the laws made by the legislature,

appropriate prescriptions are required to be made for carrying

out the purpose of the RP Act of 1951. The purpose of

prescribing disqualifications is to preserve the purity of the

electoral process. Purity of electoral process is fundamental to

the survival of a healthy democracy. We do not see any

prohibition either under the Constitution or the laws made by

the Parliament disabling or stipulating that the central

government should not make rules (in exercise of the powers

conferred by the Parliament under Section 169 of the RP Act of

1951 read with Articles 102(1)(e) and 191(1)(e) of the

Constitution) providing for such disqualification. On the other

hand, Parliament under Section 169 of the RP Act of 1951

authorised the Government of India to make rules for carrying

out the purposes of the Act.

41. The Conduct of Election Rules, 1961 is an example of

subordinate legislation; enacted by the Central Government

pursuant to the power given under Section 169(1) of the RP

36

Act of 1951.39 Section 169(2) authorizes the making of rules

for carrying out the purposes of the Act – ‘without prejudice to

the generality of the power to make Rules’. The power under

Section 169 is very wide. The function of rule-making is to fill

up the gaps in the working of a statute because no legislature

can ever comprehend all possible situations which are

required to be regulated by the statute.40

42. Logically, we see no difficulty in accepting the submission

of the petitioner in the light of the mandate of the directive

principles and the prescription of the Parliament under the PC

Act that such undue accretion of wealth is a culpable offence.

There is a need to make appropriate provision declaring that

the UNDUE ACCRETION OF ASSETS is a ground for

disqualifying a LEGISLATOR even without prosecuting the

LEGISLATOR for offences under the PC Act. It is well settled

that a given set of facts may in law give rise to both civil and

criminal consequences. For example; in the context of

employment under State, a given set of facts can give rise to a

39 The Central Government may, after consulting the Election Commission, by notification in the Official

Gazette, make rules for carrying out the purposes of this Act.

40 Para 133 of J.K. Industries Limited &Anr vs. Union of India., (2007) 13 SCC 673

It is well settled that, what is permitted by the concept of “delegation” is delegation of ancillary or

subordinate legislative functions or what is fictionally called as “power to full up the details the details”.

The judgments of this Court have laid down that the legislature may, after laying down the legislative

policy, confer discretion on administrative or executive agency like the Central Government to work out

details within the framework of the legislative policy laid down in the plenary enactment.

37

prosecution for an offence and also simultaneously form the

basis for disciplinary action under the relevant Rules

governing the service of an employee.

43. It is always open to the LEGISLATURE to declare that

any member thereof is unfit to continue as such. In Raja

Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3

SCC 184, this Court took note of the history of the

parliamentary privileges, scheme and text of the Constitution

and opined that the power of expulsion is part of the privileges

and immunities of the Parliament. It is relevant to notice that

under Article 105(3), “the powers, privileges and immunities of each

house of Parliament” may be “defined by Parliament by law”. This

court noticed and proceeded on the assumption41 that no such

law existed. Yet it was held by this Court42 that such power

was part of the privileges of the Legislature.

44. It therefore follows clearly and a fortiori that at least in

the context of expulsion of a member of the LEGISLATURE, by

a decision of that House, no statutory provision is required for

stipulating the grounds on which a member could be expelled

or the procedure which is required to be followed. Though

41 See paragraph 43 Per. Sabharwal, CJI. 42 See paragraph 318, Per. Sabharwal, CJI.

38

Article 105 and 194 authorises the LEGISLATURE to define

the “powers and privileges and immunities”, the non-exercise of that

power to legislate, does not detract the power of the

LEGISLATURE to expel a member on the ground that a

member resorted to some activity which does not meet the

approval of the House. A decision to expel a member would

certainly have the same effect as disqualifying a member on

the grounds specified under Articles 102 and 191. This Court

in Raja Ram Pal case highlighted the difference between

“expulsion” and “disqualification”. 43 It may not answer the

description of the expression disqualified as defined under the

RP Act of 1951 or the grounds mentioned under Article 102

and 191. The disqualification brought about by expulsion is

limited, of course, to the tenure of the member and does not

disqualify him from seeking to become a member again by

contesting an election in accordance with law.

45. The next question to be examined is whether it is

permissible for the respondents to make subordinate

legislation stipulating that UNDUE ACCRETION OF ASSETS

would render a LEGISLATOR disqualified within the meaning

43 Id. at paragraphs 144 and 145

39

of the expression under Section 7(b) of the RP Act of 1951 and

to establish a body to undertake the regular monitoring of

financial affairs of the LEGISLATORS.

46. If a temporary disqualification, such as the one discussed

above, could be imposed on a LEGISLATOR even in the

absence of any legislative prescription, in the light of the

Scheme and tenor of Articles 102(1)(e) and 191(1)(e) read with

Section 169 of the RP Act of 1951, the Government of India

would undoubtedly be competent to make such a stipulation

by making appropriate Rules declaring that UNDUE

ACCRETION OF ASSETS would render a LEGISLATOR

“disqualified”. Further, it would be equally competent for the

Government of India to establish a permanent mechanism for

monitoring the financial affairs of the LEGISLATORS and their

ASSOCIATES for periodically ascertaining the relevant facts.

Because the establishment of such a permanent mechanism

would be a necessary incident of the authority to declare a

LEGISLATOR “disqualified”.

INFORMATION TO THE VOTER:

47. The information regarding the sources of income of the

CANDIDATES and their ASSOCIATES, would in our opinion,

40

certainly help the voter to make an informed choice of the

candidate to represent the constituency in the LEGISLATURE.

It is, therefore, a part of the fundamental right under Article

19(1)(a) as explained by this Court in ADR case.

It must be mentioned that the 1st respondent in its

counter affidavit stated:

“Para 6. That it is further stated that the Election

Commission of India’s proposal relating to amending of Form

26 was thoroughly examined and considered in Ministry of

Law and Justice and a final decision has been taken to

amend the Form 26 of 1961 Rules. As the issues involved

relate to policy matter and after due deliberations on the

subject matter a final policy decision was taken to amend

the Form 26.”

48. Collection of such data can be undertaken by any

governmental agency or even the Election Commission44. The

present writ petition seeks that State be compelled to make a

law authorizing the collection of data pertaining to the

financial affairs of the LEGISLATORS. The petitioner submits

that the first step in the collection of data should be to call

upon those who seek to get elected to a legislative body to

make a declaration of – (i) their assets and those of their

ASSOCIATES (which is already a requirement under Section

44 We must make it clear that nothing in law prevents a vigilant citizen from collecting such data for

initiating appropriate proceedings in accordance with law.

41

33 of the RP Act of 1951 etc.); and (ii) the sources of their

income.

49. The obligation to make the second of the abovementioned

two declarations arises as a corollary to the

fundamental right of the voter under Article 19(1)(a) to know

the relevant information with respect to the CANDIDATE, to

enable the voter to make an assessment and make an

appropriate choice of his representative in the Legislature. The

enforcement of such a fundamental right needs no statutory

sanction. This Court and the High Courts are expressly

authorized by the Constitution to give appropriate directions

to the State and its instrumentalities and other bodies for

enforcement of Fundamental Rights. On the other hand,

nobody has the fundamental right to be a LEGISLATOR or to

contest an election to become a LEGISLATOR. They are only

constitutional rights structured by various limitations

prescribed by the Constitution and statutes like the RP Act of

1951. The Constitution expressly permits the structuring of

those rights by the Parliament by or under the authority of

law by prescribing further qualifications or disqualifications.45

45 See Articles 84(c), 102(1)(e), 173(c) and 191(1)(e)

42

To contest an election for becoming a legislator, a CANDIDATE

does not require the consent of all the voters except the

appropriate number of proposers being electors of the

Constituency, 46 and compliance with other procedural

requirements stipulated under the RP Act of 1951 and the

rules made thereunder. But to get elected, every CANDIDATE

requires the approval of the ‘majority’ of the number of voters

of the Constituency choosing to exercise their right to vote.

Voters have a fundamental right to know the relevant

information about the CANDIDATES. For reasons discussed

 

Article 84. Qualification for membership of Parliament.— A person shall not be qualified to be chosen

to fill a seat in Parliament unless he—

xxxxx xxxxx xxxxx

(c) possesses such other qualifications as may be prescribed in that behalf by or under any law

made by Parliament

Article 102. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,

and for being, a member of either House of Parliament—

xxxxx xxxxx xxxxx

(e) if he is so disqualified by or under any law made by Parliament.

Article 173. Qualification for membership of the State Legislature.— A person shall not be qualified to

be chosen to fill a seat in the Legislature of a State unless he—

xxxxx xxxxx xxxxx

(c) possesses such other qualifications as may be prescribed in that behalf by or under any law

made by Parliament

Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,

and for being, a member of the Legislative Assembly or Legislative Council of a State—

xxxxx xxxxx xxxxx

(e) if he is so disqualified by or under any law made by Parliament. 46Section 33. Presentation of nomination paper and requirements for a valid nomination. —(1) On or

before the date appointed under clause (a) of section 30 each CANDIDATE shall, either in person or by his

proposer, between the hours of eleven o’clock in the forenoon and three o’clock in the afternoon deliver to

the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination

paper completed in the prescribed form and signed by the CANDIDATE and by an elector of the

constituency as proposer :

Provided that a CANDIDATE not set up by a recognised political party, shall not be deemed to be duly

nominated for election form a constituency unless the nomination paper is subscribed by ten proposers

being electors of the constituency:

Provided further that no nomination paper shall be delivered to the returning officer on a day which is a

public holiday:

Provided also that in the case of a local authorities’ constituency, graduates’ constituency or teachers’

constituency, the reference to “an elector of the constituency as proposer” shall be construed as a reference

to ten per cent. of the electors of the constituency or ten such electors, whichever is less, as proposers.

43

earlier, the financial background in all its aspects, of the

CANDIDATE and his/her ASSOCIATES is relevant and critical

information. Therefore, a CANDIDATE’S constitutional right to

contest an election to the legislature should be subservient to

the voter’s fundamental right to know the relevant information

regarding the CANDIDATE; information which is critical to the

making of an informed and rational choice in this area.

50. No doubt, compelling a CANDIDATE to disclose the

relevant information, would to an extent be a legal burden on

the CANDIDATE’S constitutional right to contest an election.

The question, therefore, would be whether it requires a

statutory sanction to create such compulsion.

If we analyse the scheme of the Constitution, rights

falling under the Fundamental Rights chapter cannot be

abrogated or taken away except by authority of law. Law in

the context has always been held by this Court to require

statutory basis47. There are various other rights conferred by

the Constitution other than the fundamental rights. Whenever

it was thought fit that such rights should be curtailed, the text

47 State of Bihar v. Project Uchcha Vidya, Shiksha Sangh, (2006) 2 SCC 545, 574 paragraph 69; Bhuvan

Mohan Patnaik & Others v. State of Andhra Pradesh, (1975) 3 SCC 185, 189 paragraph 14

44

of the Constitution made a declaration to that effect and also

stipulated the manner in which such rights could be

controlled or regulated. Article 10248 is a limitation on the

constitutional right of the citizens to seek the membership of

the Parliament. It prescribes certain disqualifications for

being chosen as or for a being a Member of either House of the

Parliament. It further declares that apart from the enumerated

disqualifications, other disqualifications could be prescribed

by or under any law made by the Parliament. In other words,

Parliament could itself prescribe disqualifications or could

authorize some other body or authority to prescribe such

disqualifications. Similar is the structure of Article 84 with

respect to qualifications for membership of Parliament. We

have already recorded our opinion that a disqualification could

be prescribed by a Rule. Logically there cannot be any

objection for imposing the legal burden upon the

CANDIDATES to disclose the relevant information by RULES

(subordinate legislation) under the RP Act of 1951. Form 26

provides for various kinds of information to be disclosed by the

candidate. It cannot be said that the existing information

required to be disclosed under the Affidavit is exhaustive of all

48 Supra Note 35

45

the information a candidate needs to provide. Neither is the

information provided under Section 33A an exhaustive list.

This is because any embargo placed on the voters’ right to

know the relevant information to be disclosed by the candidate

is subject to scrutiny under the fundamental right of the voter

under Article 19(1)(a). Therefore, any limitation on information

to voter cannot be inferred. We are of the opinion that Form 26

is only indicative of the information which is required to

enable the voter to make an informed choice. And we see no

legal bar in Section 169(2) to fetter the Central Government’s

rule making power from making such information available.49

51. Under Section 33 50 of the RP Act of 1951, every

CANDIDATE is required to deliver to the returning officer “a

nomination paper completed in the prescribed form…”. The

expression “prescribed” is defined under Section 2(g) to mean

“prescribed by rules made under this Act”. Section 169 51

49 The authority for this proposition has its genesis in Emperor v. Sibnath Banerji, (1944-45) 71 IA 241:

AIR 1945 PC 156: “…. In the opinion of their Lordships, the function of sub-section (2) is merely an

illustrative one; the rule-making power is conferred by sub-section (1), and ‘the rules’ which are referred to

in the opening sentence of sub-section (2) are the rules which are authorized by, and made under, subsection

(1), as, indeed, is expressly stated by the words ‘without prejudice to the generality of the

powers conferred by sub-section (1)”; This statement of law was reiterated in State of J&K v.

Lakhwinder Kumar, (2013) 6 SCC 333 at 343 para 23; V.T Khanzode v. Reserve Bank of India, (1982)

2 SCC 7 at page 14 para. 15; BSNL Vs. TRAI (2014) 3 SCC para. 90; Afzal Ullah v. State of UP, AIR

1964 SC 264

50 Supra Note. 46 51 It, inter alia, authorizes the making of rules pertaining to the form of affidavit under sub section (3) of

Section 33A. (Inserted by Act 72 of 2002, Sec. 6 (w.r.e.f 24-8-2002)

46

authorises the Government of India by notification in the

Official Gazette to make rules for carrying out the purposes of

the Act. Therefore, the contents of the nomination form could

be determined by the Rules.

52. We shall now examine each one of the prayers in the writ

petition and the feasibility of granting any relief thereon in the

light of our above conclusions.

53. At the outset, we must make it clear that prayers 1(2)52

and 353 seek directions to the respondents for amendment of

the provisions of the RP Act of 1951.

Amendment of the RP Act of 1951 is a matter exclusively

within the domain of the Parliament. It is well settled that no

court could compel and no writ could be issued to compel any

legislative body to make a law. It must be left to the wisdom of

the legislature. Prayers 1(2) and 3, insofar as they seek

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

xxx xxx xxx

(2) to respondent no.1 to consider suitable amendment in the Representation of the People Act

1951 to provide for rejection of nomination papers of the candidates and disqualification of

MPs/MLAs/MLCs deliberately furnishing wrong information about their assets in the affidavit in

Form 26 at the time of filing of the nomination;

53 3. issue a writ, order or direction in the nature of mandamus to the respondents to consider amending

Section 9-A of the Act to include contracts with appropriate Government and any public company by the

Hindu undivided family/trust/partnership firm(s)/private company (companies) in which the candidate

and his spouse and dependents have a share or interest.

47

directions in the nature of mandamus to consider amendment

of the RP Act of 1951 cannot be granted.

54. In prayer 1(1) 54 , the petitioner seeks a direction to

respondent Nos.1 and 2 to make changes in Form 26

prescribed under Rule 4A of the RULES, which would provide

for calling upon the CANDIDATES to declare their sources of

income along with the sources of the income of their respective

ASSOCIATES.

The prescription such as the one sought by the petitioner

regarding the disclosure of the sources of income of the

CANDIDATE and his/her ASSOCIATES in a nomination could

certainly be made by making appropriate Rules. The next

question is whether the respondents could be compelled to

make appropriate Rules for the above-mentioned purpose.

The Government of India, functioning as a statutory body for

prescribing rules under the RP Act of 1951, is amenable to

writ jurisdiction under Article 32 for the enforcement of the

fundamental right under Article 19(1)(a) of the voter to know

the relevant information with respect to the candidates.

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

(1) to respondents no.1 and 2 to make necessary changes in the Form 26 prescribed under Rule 4A

of the Conduct of Election Rules, 1961 keeping in view the suggestion in para 38 of the WP;”

48

Respondent Nos.1 and 2 are constitutionally obliged to

implement the directions given by this Court in exercise of its

jurisdiction under the Constitution. It may also be noticed that

Section 169(1) of the RP Act of 1951 obligates the Government

of India to make Rules after consulting the Election

Commission. In the light of the conclusions recorded in paras

42 to 45, we are also of the opinion the information regarding

the sources of income of the LEGISLATORS and their

ASSOCIATES and CANDIDATES is relevant and

LEGISLATORS and CANDIDATES could be compelled even by

subordinate legislation. We see no reason for declining prayer

1(1).

55. In the light of the law declared by this Court in ADR case

and PUCL case, we do not see any legal or normative

impediment nor has any tenable legal objection been raised

before us by any one of the respondents, for issuance of the

direction relating to the changes in FORM 26 (declaration by

the CANDIDATES). On the other hand, the 2nd respondent in

his counter stated:

“7. It is submitted that so far as the first prayer in the

captioned writ petition is concerned, the information about

source(s) of income of candidates, their spouses and

49

dependants will be a step in the direction of enhancing

transparency and should form part of the declaration in

Col.(9) of Form 26. The Answering Respondent Commission

vide its letter no.3/4/ECI/LET/FUNC/JUD/SDR/Vol.I/2016

dated 7.09.2016 has already requested the Ministry of Law

and Justice to consider the proposed amendments made in

column (3) and column (9) of Form 26 and in total

affirmation with the prayer made by the petitioner.”

Therefore, we are of the opinion the prayer 1(1) should be

granted and is accordingly granted. We direct that Rule 4A of

the RULES and Form 26 appended to the RULES shall be

suitably amended, requiring CANDIDATES and their

ASSOCIATES to declare their sources of income.

56. We shall now deal with prayer 1(3) which seeks three

distinct reliefs. In our opinion, it would be more logical to deal

with the relief sought in prayer 1(3)(ii)55 first.

In prayer 1(3)(ii), the petitioner seeks a direction for

establishment of a permanent mechanism to inquire/

investigate into the disproportionate increase in the assets of

LEGISLATORS during their tenure as LEGISLATORS.

The 1st respondent is silent in its counter in this regard

except making an omnibus claim and a general stand that all

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

xxx xxx xxx

(3) to respondents no.3 to 5 toxxx

xxx xxx

(ii)have a permanent mechanism to take similar action in respect of MPs/MLAs/MLCs whose

assets increase by more than 100% by the next election,

50

the prayers are in the realm of policy and within the exclusive

domain of the Parliament.

57. We have already taken note of (i) the fact that increase in

the assets of the LEGISLATORS and/or their ASSOCIATES

disproportionate to the known sources of their respective

incomes is, by compelling inference, a constitutionally

impermissible conduct and may eventually constitute offences

punishable under the PC Act and (ii) ‘undue influence’ within

the meaning of Section 123 of the RP Act of 1951. In order to

effectuate the constitutional and legal obligations of

LEGISLATORS and their ASSOCIATES, their assets and

sources of income are required to be continuously monitored

to maintain the purity of the electoral process and integrity of

the democratic structure of this country. Justice Louis D.

Brandeis, perceptively observed: “the most important political

office is that of the private citizen.”

58. The citizen, the ultimate repository of sovereignty in a

democracy must have access to all information that enables

critical audit of the performance of the State, its

instrumentalities and their incumbent or aspiring public

officials. It is only through access to such information that the

51

citizen is enabled/empowered to make rational choices as

regards those holding or aspiring to hold public offices, of the

State.

59. The State owes a constitutional obligation to the people of

the country to ensure that there is no concentration of wealth

to the common detriment and to the debilitation of democracy.

Therefore, it is necessary, as rightly prayed by the petitioner,

to have a permanent institutional mechanism dedicated to the

task. Such a mechanism is required to periodically collect

data of LEGISLATORS and their respective ASSOCIATES and

examine in every case whether there is disproportionate

increase in the assets and recommend action in appropriate

cases either to prosecute the LEGISLATOR and/or

LEGISLATOR’S respective ASSOCIATES or place the

information before the appropriate legislature to consider the

eligibility of such LEGISLATORS to continue to be members of

the concerned House of the legislature.

60. Further, data so collected by the said mechanism, along

with the analysis and recommendation, if any, as noted above

should be placed in the public domain to enable the voters of

52

such LEGISLATOR to take an informed and appropriate

decision, if such LEGISLATOR chooses to contest any election

for any legislative body in future.

61. For the reasons mentioned above, we allow the prayer

1(3)(ii) of the 1st respondent.

62. In prayer 1(3)(i)56, the petitioner prays that an inquiry/

investigation be conducted into the “disproportionate increase

in the assets” of the LEGISLATORS named in Annexure P-6 to

the writ petition.

We are of the opinion that an inquiry/investigation such

as the one sought for by the petitioner with reference to the

named LEGISLATORS would amount to selective scrutiny of

the matter in the absence of any permanent mechanism

regularly monitoring the growth of the assets of all the

LEGISLATORS and/or their ASSOCIATES as a class. Such a

selective investigation could lead to political witch-hunting.

We, therefore, decline this relief, at this stage.

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

xxx xxx xxx

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

conduct inquiry/investigation into disproportionate increase in the assets of MPs/MLAs/MLCs

included in list in Annexure P6 to the WP,

53

63. We shall now deal with prayer no.2 57 which seeks a

declaration that non-disclosure of assets and sources of

income would amount to ‘undue influence’ – a corrupt practice

under Section 123(2) of the RP Act of 1951. In this behalf,

heavy reliance is placed by the petitioner on a judgment of this

Court in Krishnamoorthy v. Sivakumar & Others, (2015) 3

SCC 467. It was a case arising under the Tamil Nadu

Panchayats Act, 1994. A notification was issued by the State

Election Commission stipulating that every candidate at an

election to any Panchayat is required to disclose information

inter alia whether the candidate was accused in any pending

criminal case of any offence punishable with imprisonment for

two years or more and in which charges have been framed or

cognizance has been taken by a court of law. In an election

petition, it was alleged that there were certain criminal cases

pending falling in the abovementioned categories but the said

information was not disclosed by the returned candidate at the

time of filing his nomination. One of the questions before this

Court was whether such non-disclosure amounted to ‘undue

influence’ – a corrupt practice under the Panchayats Act. It

57 Prayer No.2 – “declare that non disclosure of assets and sources of income of self, spouse and dependents

by a candidate would amount to undue influence and thereby, corruption and as such election of such a

candidate can be declared null and void under Section 100(1)(b) of the RP Act of 1951 in terms of the

judgment reported in AIR 2015 SC 1921.”

54

may be mentioned that the Panchayats Act simply adopted the

definition of a corrupt practice as contained in Section 123 of

the RP Act of 1951.

On an elaborate consideration of various aspects of the

matter, this Court held as follows:

91. … While filing the nomination form, if the requisite

information, as has been highlighted by us, relating to

criminal antecedents, is not given, indubitably, there is an

attempt to suppress, effort to misguide and keep the people

in dark. This attempt undeniably and undisputedly is undue

influence and, therefore, amounts to corrupt practice. …”

64. For the very same logic as adopted by this Court in

Krishnamoorthy, we are also of the opinion that the nondisclosure

of assets and sources of income of the

CANDIDATES and their ASSOCIATES would constitute a

corrupt practice falling under heading ‘undue influence’ as

defined under Section 123(2) of the RP Act of 1951. We,

therefore, allow prayer No.2.

65. Coming to Prayer No. 4, the petitioner is only seeking

information regarding the contracts, if any with the

appropriate government either by the candidate or his/her

spouse and dependants.

55

“..information about the contracts with appropriate

Government and any public company by the candidate,

his/her spouse and dependents directly or by Hindu

undivided family/trust/partnership firm(s)/private company

(companies) in which the candidate and his spouse and

dependents have a share or interest shall also be provided in

the affidavit in Form 26 prescribed under the Rules.”

66. In the light of the foregoing discussion, the information

such as the one required under the above-mentioned prayer is

certainly relevant information in the context of disqualification

on the ground of undue accretion of assets, therefore, we see

no objection for granting the relief as prayed for.

67. We are left with the reliefs sought by way of prayer No. 5

in I.A. No. 8 of 2016. The petitioner seeks Form 26 be

amended to provide certain further information. An analysis

of the information sought (as can be seen from the prayer)

indicates that all the information is in the context of

statutorily prescribed disqualifications under the RP Act of

1951. In our opinion, such information would certainly be

relevant and necessary for a voter to make an appropriate

choice at the time of the election whether to vote or not in

favour of a particular candidate. Therefore, all the six prayers

made in I.A. No. 8 are allowed.

56

68. The writ petition is allowed as indicated above, but, in

the circumstances, without any costs.

………………………………….J.

(J. CHELAMESWAR)

………………………………….J.

(S. ABDUL NAZEER)

New Delhi

February 16, 2018