In the Supreme Court of India
WRIT PETITION (C) NO.784 OF 2015
Lok Prahari Through Its General Secretary S.N. Shukla
Union Oo India and Others
Date of Judgement
16th February, 2018
Hon’ble J. Chalmeshwar; Hon’ble S. Abdul Nazeer
Advocates who appeared in this case:
K.K Venugopal, Attorney General, P.S. Narasimha, Additional Solicitor General, K. Radhakrishnan and Ms. Meenakshi Arora, Senior Advocates [S.S Shukla (Petitioner-in person), Ms. Kamini Jaiswal, Ms. Rani Mishra, Jatinderpal Singh, Ms. Shruti Dyutt, Ms. Vimla Sinha, Ms. Sushma Manchanda, Tufail A. Khan, B.V. Balaram Das, Merusagar Samantaray, Ms. Madhavi Divan, Ms. Lhingneivah, Ms. Viddusshi, Ankur Talwar, Mukesh Kr. Maroria, Ms. Anil Katiyar, B. Krishna Prasad and Mohit D. Ram, Advocates] for the appearing parties.
The last three elections of the Lok Sabha have seen an increasing number of legislators with criminal records: 128 in 2004, 162 in 2009 and 184 in 2014. The Electoral Commission (EC) tried to get help from the government, political parties and the trial court to put an end to corrupt influences in legislatures. The Electoral Commission has moved to the Supreme Court, appealing against the decision of the Delhi High Court to set aside the disqualification of a parliamentarian in Madhya Pradesh. The EC’s proposal to ban candidates accused of a crime punishable by at least five years in prison challenges elections, after a Court accuses them, has been opposed by many parties. The recent verdict of the court transmitted the responsibility to the EC itself.
Background of Study:
The Supreme Court in Association for Democratic Reforms (ADR) v. Union of India, ordered the disclosure of information related to criminal records, educational qualification, and personal property of a candidate who contests the elections. Supreme Court in Lily Thomas v. Union of India (2013), declared Section 8 (4) of the Law of Representation of the People’s Act (ROPA), 1951, that allowed the condemned legislators a period of three months to file an appeal before the High Court and obtain a suspension of the sentence, as unconstitutional. In People’s Union for Civil Liberties v. Union of India (2013), the Supreme Court recognized the negative vote as a constitutional right of a voter and ordered the Government to offer the option of “None of The Above” (“NOTA”) on electronic voting machines. In Public Interest Foundation and Ors. v Union of India (2014), based on the recommendations made by the Law Commission in its 244th report, the Supreme Court had ordered that the trials concerning the MPs and the MLAs, be concluded within the term of one year from the charges against him. Recently, the Supreme Court ordered the Government to establish special courts to exclusively carry out limited-term trials of politicians accused of corruption and criminality.
Constitutional and Statutory Provisions Discussed:
- Article 19(1)(a), 32, 38, 39, 58, 66 , 84(b), 102, 105, 173(b), 191,194, 324, 326, 327, 329(b), Schedule VII List I Entry 72 and Schedule VII List II Entry 37.
- Sections 8, 8-A, 9, 9-A, 10, 10-A, 77, 99, 100, 123 and 169 of the Representation of People’s Act, 1951
- Conduct of Election Rules, 1961, Rule 4-A and Form 26.
- Section 13 of the Prevention of Corruption (PC) Act.
The Petitioner is a registered society consisting mostly of retired civil servants who held important constitutional posts, filed a PIL for improving the electoral system to strengthen democracy. According to the petitioners, assets of some of the members of parliament/State Legislatures and their associates grew disproportionately to their known sources of income and in some cases increased more than five times after they got elected. Hence, they prayed for periodic examination of sources of income of legislators and their associates to ascertain whether there is undue accretion of assets.
1. Whether the State can be compelled to make a law authorizing the collection of data pertaining to the financial affairs of the legislators?
2. Whether respondents are allowed to make subordinate legislation stipulating that the undue accumulation of assets would cause a legislator to be disqualified in the sense of the expression under Section 7 (b) of the RP Act of 1951 and establish an agency to carry out regular monitoring of financial matters of legislators?
Arguments of the Petitioners:
- The petitioner contends that given the reluctance of Parliament to act on their eighteen-year-old resolution and the failure of the respondents to even respond, leave alone meaningfully effectuate the implementation of the judgments of this Hon’ble Court in Association for Democratic Reforms, PUCL, Resurgence India v. Election Commission of India and Krishnamoorthy v. Sivakumar, in this regard for restoring and maintaining the purity of the highest legislative bodies in accordance with the intentions of the Founding Fathers of the Constitution and the concern expressed by the Framers of the ROPA, 1951, intervention of this Hon’ble Court has become necessary in terms of the following observation of this Hon’ble Court in Vineet Narain.
- The petitioner submitted that in the light of the mandate of the directive principles and the prescription of Parliament under the PC Act such undue accretion of wealth is a culpable offense. 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 the offenses under the PC Act.
- 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 their assets and those of their associates (already a requirement under Form 26 of 1961 Rules) and their sources of income.
- The petitioner submitted that the first step in collection of data should be to call upon those who seek to get elected to a legislative body to make a declaration of their assets and those of their associates (which is already a requirement under Section 33 of the 1951 RP Act, etc.) and the sources of their income.
Arguments of the Respondents:
- The 2nd respondent i.e., Election Commission of India supported the cause of the petitioner and submitted that it is a step ahead towards healthier democracy, in furtherance of a level playing field for participative democracy and free and fair elections.
- Respondents also submitted that they support the petitioner’s Prayer and have already written to the Ministry of Law and Justice to amend Form 26 to include the source of income from the candidate and spouse letter.
- The undue accumulation of assets of legislators and their associates is undoubtedly an issue that should alarm the citizens and voters of any truly democratic society. Such a phenomenon is a sure indicator of the beginning of a failed democracy. If left unattended, it will inevitably lead to the destruction of democracy and pave the way for an unaccountable government.
- The Court relying on the case of Union of India v. Assn, for Democratic Reforms and held that it is the political belief that underlies the declaration of the Preamble of the Constitution that India should be a Socialist and Republic. Articles 38 and 39 of the Constitution declare that the State will direct its policy to ensure that the ownership and control of the material resources of the community are distributed in a way that best serves the common good and ensures that the economic system does not result in the concentration of wealth and means of production in common detriment. The Creators of the Constitution gave a sufficient indication of that belief when they established under Articles 102 (1) (a) and 191 (1) (a) that the possession of any trade of profit would disqualify a person to convert or continue being a legislator.
- The Court relied on P.V. Narasimha Rao v. State, Indramani Pyarelal Gupta v. W.R. Natu and BSNL v. TRAI and held that Section 169(1) of the ROPA, 1951, authorizes the Central Government to make rules for carrying out the purposes of the Act. 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 comprehend all possible solutions.
- The Court relied on K Industries Ltd. V. Union of India and held that though articles 105 and 194 authorize the legislature to define the “powers and privileges and immunities”, the non-exercise of that power to legislate, does not detract from the power of the legislature to expel a member on the ground that a member resorted to some activity which does not meet 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. Though disqualification brought about by expulsion is limited 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 the law.
- The Court relied on Raja Ram Pal v. Lok Sabha and held that the respondents are allowed to enact a subordinate legislation that stipulates that the undue accumulation of assets would cause a legislator to be disqualified within the meaning of the expression under Section 7 (b) of the ROPA, 1951 and establish a body to carry out regular monitoring of the financial affairs of legislators. And in the light of the scheme of Articles 102 (1) (e) and 191 (1) (e) read with Section 169 of the ROPA, 1951, the Government of India is undoubtedly competent to make such a provision to make the appropriate rules state that the undue accumulation of assets would cause a legislator to be “disqualified.”.
- The obligation upon persons who seek to get elected to disclose their sources of income 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. This enables the voter to make an appropriate choice of his representative in the legislature.
- Under Section 33 of the ROPA, 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 the Act”. Section 169 authorizes 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.
- The amendment of the ROPA is an exclusive matter of the domain of Parliament. It is well established that no court could compel and a court order could not be issued to force any legislative body to enact a law. It should be left to the wisdom of the legislature.
- The Court applied following Krishnamoorthy v. Sivakumar, held that the non-disclosure of the assets and sources of income of the candidates and their associates would constitute a corrupt practice under the title “undue influence” as defined in Section 123 (2) of the ROPA, 1951.
- The abnormal growth of the assets of legislators or their associates should not always be a consequence of such illegal activity. It could be the result of inappropriate activities. These are known cases of using a large number of loans for allegedly commercial purposes of public financial institutions by legislators or their associates, either directly or through corporate entities controlled by them. Besides, obtaining high monetary value contracts, whether from the government or other corporate bodies controlled by the government, is another activity that allows legislators and their associates to acquire huge assets.
- The Court observed that the possible solutions are to enact the laws that make the undue accumulation of wealth a crime, disqualify the legislators who have acquired wealth through unconstitutional means and make known to the electorate so that they can choose whether such legislators must be delivered another opportunity. However, the undue accumulation of wealth is not one of the reasons either under the provisions of neither of the PC Act, 1988 or ROPA, 1951, nor of Articles 102 and 191 of the Constitution. However, both articles stipulate that Parliament may, by law or under any law, prescribe disqualifications other than those specified below.
- The Court accepted the petitioner’s submission in the light of the mandate of the Directive Principles and the prescription of Parliament under the PC Law that such undue accumulation of wealth is a guilty offense. It is well established that a given set of facts can lead to civil and criminal consequences.
- An inquiry/investigation to be conducted into the “disproportionate increase in the assets” of the 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 heir associates as a class and would lead to political witch-hunting.
The Supreme Court’s decision in Lok Prahari v. Union of India, marks an important addition to the jurisprudence of electoral reform in India. The Court issued instructions for the institution of a permanent mechanism for periodic monitoring of the increase in the assets of MP / MLAs that is disproportionate to their known sources of income. This supervisory body should publish the information and recommend appropriate action. This is only a successor to a line of judgments relating to financial responsibility among legislators primarily, the Union of India v. Association for Democratic Reforms and PUCL v. Union of India.
The judiciary has developed concrete jurisprudence, avoiding the constitutionally integrated weaknesses in our electoral reform mechanisms, without violating the separation of functions provided by the Constitution. However, this has led to reforms that are susceptible to dilution and volatility due to legislative action, which has tended to stop or reverse any progress in transparency with undemocratic impunity. Therefore, although the Supreme Court is only assuming a more important role in electoral reforms, the fractures of our democracy must still be treated in a more institutional and long-term way.
Edited by Parul Soni
Approved & Published – Sakshi Raje
 S.Y. Quraishi, Has the SC missed a chance to keep criminals out of polls?, The Hindu, October 12, 2018, https://www.thehindu.com/opinion/op-ed/has-the-sc-missed-a-chance-to-keep-criminals-out-of-polls/article25194981.ece.
 Association for Democratic Reforms (ADR) v. Union of India, (2002) 5 SCC 294.
 Lily Thomas v. Union of India, 2013 (7) SCC 653.
 People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399.
 Public Interest Foundation v Union of India, 2014 SCC 1 616.
 Supra note 4.
 Supra note 6.
 Resurgence India v. Election Commission of India, (2014) 12 SCC 189.
 Krishnamoorthy v. Sivakumar, (2015 3 SCC 467.
 v. Union of India, (1998) 4 SCC 626.
 Supra note 4.
 P.V. Narasimha Rao v. State, 1998 SCC (Cri) 1108.
 Indramani Pyarelal Gupta v. W.R. Natu, AIR 1963 SC 274.
 BSNL v. TRAI, (2014) 3 SCC 222.
 J.K Industries Ltd. v. Union of India, (2007) 13 SCC 673.
 Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184.
 Supra note 11.
 Lok Prahari v. Union of India, (2018) 4 SCC 699.
 Supra note 4.
 Supra note 6.