LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. SHUKLA v. UNION OF INDIA & OTHERS

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A right to vote. Voters have a fundamental right to know the relevant information about the CANDIDATES. For reasons discussed earlier, the financial background in all its aspects, of the CANDIDATE and his/ her ASSOCIATES is relevant and critical information. Therefore, a CANDIDATE’S constitutional right to contest an election to the legislature should be subservient to the voter’s fundamental right to know the relevant information regarding the CANDIDATE; information which is critical to the making of an informed and rational choice in this area.

50Copy pinpoint50. 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 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 G 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 48 Supra Note 35

LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 933 SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

RULES (subordinate legislation) under the RP Act of 1951. Form 26 A provides for various kinds of information to be disclosed by the candidate. It cannot be said that the existing information required to be disclosed under the Affidavit is exhaustive of all the information a candidate needs to provide. Neither is the information provided under Section 33A an exhaustive list. This is because any embargo placed on the voters’ right B 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 C Government’s rule making power from making such information available.49

51Copy pinpoint51. Under Section 3350 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 D defined under Section 2(g) to mean “prescribed by rules made under this Act”. Section 16951 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. E

52Copy pinpoint52. 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. 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 F function of sub-section (2) is merely an illustrative one; the rule-making power is conferred by sub-section (1), and ‘the rules’ which are referred to in the opening sentence of sub-section (2) are the rules which are authorized by, and made under, sub- section (1), as, indeed, is expressly stated by the words ‘without prejudice to the generality of the powers conferred by sub-section (1)”; This statement of law was reiterated in State of J&K v. Lakhwinder Kumar, (2013) 6 SCC 333 at 343 para 23; V.T Khanzode v. Reserve Bank of India, (1982) 2 SCC 7 at page 14 para. 15; BSNL G 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)

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53Copy pinpoint53. At the outset, we must make it clear that prayers 1(2)52 and 53 3 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 B and no writ could be issued to compel any legislative body to make a law. It must be left to the wisdom of the legislature. Prayers 1(2) and 3, insofar as they seek directions in the nature of mandamus to consider amendment of the RP Act of 1951 cannot be granted.

54Copy pinpoint54. In prayer 1(1)54, the petitioner seeks a direction to respondent C 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. 52

1. issue a writ, order or direction, in the nature of mandamus – xxx xxx xxx F (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 G 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. 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;” H

LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 935 SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

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).

55Copy pinpoint55. 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 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 E 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 F Form 26 appended to the RULES shall be suitably amended, requiring CANDIDATES and their ASSOCIATES to declare their sources of income.

56Copy pinpoint56. 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 G sought in prayer 1(3)(ii)55 55

1. issue a writ, order or direction, in the nature of mandamus - xxx xxx xxx (3) to respondents no.3 to 5 to- xxx xxx xxx (ii) have a permanent mechanism to take similar action in respect of MPs/ MLAs/MLCs whose assets increase by more than 100% by the next election, H

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A 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 the prayers are in the realm of policy and within the exclusive domain of the Parliament.

57Copy pinpoint57. 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.”

58Copy pinpoint58. The citizen, the ultimate repository of sovereignty in a democracy must have access to all information that enables critical audit of the performance of the State, its instrumentalities and their incumbent or aspiring public officials. It is only through access to such information that the citizen is enabled/empowered to make rational choices as regards those holding or aspiring to hold public offices, of the State.

59Copy pinpoint59. 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 G 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.

LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 937 SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

60Copy pinpoint60. Further, data so collected by the said mechanism, along with the analysis and recommendation, if any, as noted above should be placed in the public domain to enable the voters of such LEGISLATOR to take an informed and appropriate decision, if such LEGISLATOR chooses to contest any election for any legislative body in future.

61Copy pinpoint61. For the reasons mentioned above, we allow the prayer 1(3)(ii) B of the 1st respondent.

62Copy pinpoint62. 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. C 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 D selective investigation could lead to political witch-hunting. We, therefore, decline this relief, at this stage.

63Copy pinpoint63. We shall now deal with prayer no.257 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 E 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 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, 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.” H

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A 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 B the Panchayats Act. It 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: C

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, D therefore, amounts to corrupt practice. …”

64Copy pinpoint64. For the very same logic as adopted by this Court in Krishnamoorthy, we are also of the opinion that the non-disclosure of assets and sources of income of the CANDIDATES and their ASSOCIATES would constitute a corrupt practice falling under heading E ‘undue influence’ as defined under Section 123(2) of the RP Act of

1951. We, therefore, allow prayer No.2.

65Copy pinpoint65. 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. F “..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.”

66Copy pinpoint66. 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.

LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 939 SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

67Copy pinpoint67. We are left with the reliefs sought by way of prayer No. 5 in A 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 B 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.

68Copy pinpoint68. The writ petition is allowed as indicated above, but, in the circumstances, without any costs. C

Divya Pandey Writ Petition allowed.