Holding

The Court held that the government may, under Section 169 of the Representation of the People Act, 1951, amend the Conduct of Election Rules to require candidates and their associates to disclose sources of income, establish a permanent monitoring mechanism, and treat non‑disclosure as a corrupt practice, but cannot compel amendment of the RP Act itself.

Summary

Lok Prahari, a registered society, filed a writ petition alleging that several members of Parliament and State Legislatures had amassed assets disproportionate to their known sources of income, seeking greater transparency and possible disqualification. The Court examined whether undue accretion of assets could be made a ground for disqualification under the Representation of the People Act, 1951 and the Constitution, and whether the government could, via rule‑making, require candidates and their associates to disclose sources of income. It held that while Parliament may prescribe disqualifications, the existing statutes do not list undue wealth accumulation, but the Central Government can amend Rule 4A and Form 26 to require such disclosures. The Court also directed the establishment of a permanent mechanism to monitor legislators' assets and declared non‑disclosure of income sources as a corrupt practice under Section 123(2). Selective investigations into named legislators were declined to avoid political witch‑hunting. Consequently, the petition was allowed, with specific directions to amend Form 26, create a monitoring body, and treat non‑disclosure as undue influence.

Issues considered

Whether undue accretion of assets of legislators can be made a ground for disqualification under the Representation of the People Act, 1951 and the Constitution.
Whether the Central Government can, under Section 169 of the RP Act, amend Rule 4A and Form 26 to compel candidates and their associates to disclose sources of income.
Whether a permanent mechanism can be established to monitor the financial affairs of legislators.
Whether non‑disclosure of assets and sources of income constitutes ‘undue influence’ under Section 123(2) of the RP Act.
Whether the Court can issue mandamus directing amendment of the RP Act itself.

Legislation cited

Prevention of Corruption Act, 1988s. 13(1)(e), s. 13(2)
Representation of the People Act, 1951s. 10, s. 100, s. 10A, s. 123, s. 169, s. 2(g), s. 33A, s. 33B, s. 77, s. 78, s. 7(b), s. 8, s. 8A, s. 9, s. 9A

Subjects

electoral reformdisqualification of legislatorsundue accumulation of assetsvoter's right to informationRepresentation of the People ActPrevention of Corruption Actsubordinate legislationRule 4AForm 26Article 19(1)(a)Article 102Article 191mandatory disclosurepermanent monitoring mechanism

Judgment

892 [2018]REPORTS
SUPREME COURT 2 S.C.R. 892 [2018] 2 S.C.R.

A LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N.
SHUKLA
v.
UNION OF INDIA & OTHERS
B WRIT PETITION (C) No. 784 OF 2015
FEBRUARY 16, 2018
[J. CHELAMESWAR AND S. ABDUL NAZEER, JJ.]
The Representation of the People Act, 1951 – Chapter II, Part
III – ss.2(g), 7(b), 8, 8A, 9, 9A, 10, 10A, 33A, 33B, 77, 78, 100, 123
C
and 169 – Disqualification of Legislators on ground of undue
accretion of assets – Right of voters to know vital information about
candidates – Writ petition filed by registered society stating that the
assets of some members of the Parliament and State legislatures
grew disproportionately to their known sources of income – Petitioner
D sought various reliefs – Held: Parliament has prescribed various
disqualifications in Chapter III of Part II of the 1951 Act – However,
undue accumulation of wealth (assets of the Legislators) is not one
of the grounds specified either under the 1951 Act or u/Arts.102
and 191 of the Constitution which stipulate some of the
disqualifications – Financial background, in all its aspects, of the
E
candidates is relevant and critical information – Voters have a
fundamental right to know the relevant information about the
Candidates – Prayer No.1(1) of the petitioner allowed – Thus, r.4A
of the Conduct of Election Rules, 1961 and Form 26 appended to
the said Rules to be suitably amended, requiring Candidates and
F their spouses and dependants to declare their sources of income –
Further, prayer no. 1(3)(ii) seeking direction for establishment of a
permanent mechanism to inquire/ investigate into the
disproportionate increase in the assets of Legislators during their
tenure as Legislators, prayer no. 2 seeking declaration that non-
disclosure of assets and sources of income would amount to ‘undue
G
influence’- a corrupt practice u/s.123(2) of the 1951 Act, prayer
no. 4 seeking information regarding the contracts, if any with the
appropriate government either by the candidate or his/her spouse
and dependants and prayer no.5 seeking Form 26 to be amended
to provide certain further information, also allowed – However,
H prayer nos. 1(2) and 3 insofar as they seek directions in the nature
892
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 893
SHUKLA v. UNION OF INDIA

of mandamus to consider amendment of the RP Act of 1951 and A
prayer no. 1(3)(i) seeking selective inquiry/investigation into the
“disproportionate increase in the assets” of the named Legislators,
not allowed – Constitution of India – Arts.19(1)(a), 32, 58, 66, 84,
102(1)(e), 191(1)(e) 173, 326, 329 – VIIth Schedule, List I, Entry
72 – Conduct of Election Rules, 1961 – r 4A, Form 26 – Prevention
B
of Corruption Act, 1988 – ss.13(1)(e), 13(2) – Election Laws –
Electoral Reforms.
The Representation of the People Act, 1951 – s. 169 – Rule
making power under, of Central Government – Discussed –
Administrative Law – Subordinate Legislation.
C
Writs – When cannot be issued – Writ petition filed inter alia
seeking direction to respondents for amendment of provisions of
the 1951 Act – Held: No writ could be issued to compel any legislative
body to make a law – Hence, prayers seeking directions to
respondents for amendment of the provisions of the 1951 Act cannot
be granted – The Representation of the People Act, 1951. D

Allowing the writ petition, the Court
HELD: 1.1 The Representation of the People Act, 1951
contains various provisions in Chapter III of Part II stipulating
the disqualifications for membership of Parliament and State E
Legislatures. They are Sections 8, 8A, 9, 9A, 10 and 10A. Chapter
IV of Part II contains a provision stipulating a disqualification for
voting, obviously, referable to the authority of Parliament under
Article 326. The expression ‘disqualified’ is defined under
Section 7(b) of the RP Act of 1951. [Paras 11, 12] [908-F-G]
F
1.2 Section 33A mandates that a candidate is also required
to deliver to the returning officer at the time of the filing of
nomination an affidavit sworn by the candidate in the prescribed
form. As a corollary to the said mandate, Rule 4A was inserted in
the Conduct of Election Rules, 1961 (hereafter referred to as
the RULES) stipulating that an affidavit in the Form No.26 is G
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
H
894 SUPREME COURT REPORTS [2018] 2 S.C.R.

A movable and immovable) of their spouses and dependants
(collectively referred as ASSOCIATES). [Para 26] [915-F; 916-
A-B]
OFFENCE:
1.3 Provisions already exist in the Prevention of Corruption
B Act, 1988 (hereafter the PC Act) specifying various activities
enumerated therein to be offences. For example: Under Section
13(1)(e) of the PC Act, it is misconduct for a public servant to be
in possession either personally or through some other person,
“of pecuniary resources or property disproportionate to his known
C sources of income.” Under Section 13(2), such a misconduct is
an offence punishable with imprisonment for a period up to 10
years and also liable to fine. This Court has already held that a
LEGISLATOR is a public servant. Section 8(1)(m) of the RP Act
of 1951 declares that a person convicted for an offence under the
PC Act, 1988 is disqualified both for being chosen or continuing
D as a LEGISLATOR (the members of the Parliament and the State
Legislatures referred to as “LEGISLATORS”). [Para 35] [924-
E; 925-A-B]
DISQUALIFICATION:

E 1.4 Under Section 8(1)(m) of the RP Act of 1951, it is
provided that persons convicted and sentenced to imprisonment
for not less than 6 months for offences under the provisions of
various enumerated offences under Section 8 of the RP Act of
1951 are disqualified either for being chosen or continuing as a
LEGISLATOR. The petitioner seeks such a disqualification to
F be imposed even in the absence of a conviction under the
provisions of the PC Act. [Para 37] [925-C-D; 926-A-B]
1.5 Parliament has prescribed various disqualifications in
Chapter III of Part II of the RP Act of 1951 (Sections 8, 8A, 9,
9A, 10 and 10A). Each of those disqualifications arises out of
G various factors specified under each of those sections. Undue
accumulation of wealth (assets of the LEGISLATORS) is not one
of the grounds specified either under any of the abovementioned
provisions or under Articles 102 and 191 of the Constitution which
stipulate some of the disqualifications. However, both the Articles
stipulate that the Parliament may, by or under any law, prescribe
H
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 895
SHUKLA v. UNION OF INDIA

disqualifications other than those specified thereunder. [Para 38] A
[926-B-C]
Dr. Indramani Pyarelal Gupta & others vs. W.R. Natu
& others AIR 1963 SC 274 : [1963] SCR 721 – relied on.
1.6 Manifold and undue accretion of assets of
LEGISLATORS or their ASSOCIATES by itself might be a good B
ground for disqualifying a person either to be a LEGISLATOR
or for seeking to get re-elected as a LEGISLATOR. Statutes
made by the Parliament are silent in this regard. But Section
169(1) of the RP Act of 1951 authorises the central government
to make rules for carrying out the purposes of the Act. If the C
nation believes that those who are elected to its legislative bodies
ought not to take undue advantage of their election to the
LEGISLATURE for accumulation of wealth by resorting to means,
which are inconsistent with the letter and spirit of the Constitution
and also the laws made by the legislature, appropriate
prescriptions are required to be made for carrying out the purpose D
of the RP Act of 1951. The purpose of prescribing disqualifications
is to preserve the purity of the electoral process. Purity of
electoral process is fundamental to the survival of a healthy
democracy. There is no prohibition either under the Constitution
or the laws made by the Parliament disabling or stipulating that E
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 F
out the purposes of the Act. The Conduct of Election Rules, 1961
is an example of subordinate legislation; enacted by the Central
Government pursuant to the power given under Section 169(1)
of the RP Act of 1951. Section 169(2) authorizes the making of
rules for carrying out the purposes of the Act – ‘without prejudice G
to the generality of the power to make Rules’. The power under
Section 169 is very wide. The function of rule-making is to fill up
the gaps in the working of a statute because no legislature can
ever comprehend all possible situations which are required to
be regulated by the statute. Logically, there is no difficulty in
H
896 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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
B
prosecuting the LEGISLATOR for offences under the PC Act.
It is well settled that a given set of facts may in law give rise to
both civil and criminal consequences. For example; in the context
of employment under State, a given set of facts can give rise to a
prosecution for an offence and also simultaneously form the basis
C for disciplinary action under the relevant Rules governing the
service of an employee. [Paras 40-42] [927-C-G; 928-A-D]
1.7 It is always open to the LEGISLATURE to declare that
any member thereof is unfit to continue as such. If a temporary
disqualification could be imposed on a LEGISLATOR even in
D 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,
E 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
F necessary incident of the authority to declare a LEGISLATOR
“disqualified”. [Paras 43, 46] [928-D; 929-E-G]
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others
(2007) 3 SCC 184 : [2007] 1 SCR 317– relied on.
INFORMATION TO THE VOTER:
G
1.8 The information regarding the sources of income of the
CANDIDATES and their ASSOCIATES, would certainly help the
voter to make an informed choice of the candidate to represent
the constituency in the LEGISLATURE. It is, therefore, a part
of the fundamental right under Article 19(1)(a) as explained by
H this Court in ADR case. Collection of such data can be undertaken
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 897
SHUKLA v. UNION OF INDIA

by any governmental agency or even the Election Commission. A
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
B
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 C
disqualifications. To contest an election for becoming a legislator,
a CANDIDATE does not require the consent of all the voters
except the appropriate number of proposers being electors of
the Constituency, and compliance with other procedural
requirements stipulated under the RP Act of 1951 and the rules
D
made thereunder. But to get elected, every CANDIDATE
requires the approval of the ‘majority’ of the number of voters of
the Constituency choosing to exercise their right to vote. Voters
have a fundamental right to know the relevant information about
the CANDIDATES. For reasons discussed earlier, the financial
background in all its aspects, of the CANDIDATE and his/her E
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
F
rational choice in this area. [Paras 47-49] [929-H; 930-A, D, F-G;
931-A-B; 932-A-B]
Union of India v. Association for Democratic Reforms
and Another (2002) 5 SCC 294 : [2002] 3 SCR 696 –
relied on.
G
1.9 No doubt, compelling a CANDIDATE to disclose the
relevant information, would to an extent be a legal burden on the
CANDIDATE’S constitutional right to contest an election. The
question, therefore, is whether it requires a statutory sanction to
create such compulsion. When the scheme of the Constitution is
H
898 SUPREME COURT REPORTS [2018] 2 S.C.R.

A analysed, rights falling under the Fundamental Rights chapter
cannot be abrogated or taken away except by authority of law.
Law in the context has always been held by this Court to require
statutory basis. There are various other rights conferred by the
Constitution other than the fundamental rights. Whenever it was
thought fit that such rights should be curtailed, the text of the
B
Constitution made a declaration to that effect and also stipulated
the manner in which such rights could be controlled or regulated.
Article 102 is a limitation on the constitutional right of the citizens
to seek the membership of the Parliament. It prescribes certain
disqualifications for being chosen as or for a being a Member of
C 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
D
to qualifications for membership of Parliament. A disqualification
could be prescribed by a Rule. Logically there cannot be any
objection for imposing the legal burden upon the CANDIDATES
to disclose the relevant information by RULES (subordinate
legislation) under the RP Act of 1951. Form 26 provides for
E various kinds of information to be disclosed by the candidate. It
cannot be said that the existing information required to be
disclosed under the Affidavit is exhaustive of all the information
a candidate needs to provide. Neither is the information provided
under Section 33A an exhaustive list. This is because any
embargo placed on the voters’ right to know the relevant
F
information to be disclosed by the candidate is subject to scrutiny
under the fundamental right of the voter under Article 19(1)(a).
Therefore, any limitation on information to voter cannot be
inferred. Form 26 is only indicative of the information which is
required to enable the voter to make an informed choice. And
G there is no legal bar in Section 169(2) to fetter the Central
Government’s rule making power from making such information
available. [Para 50] [932-C-G; 933-A-C]
1.10 Under Section 33 of the RP Act of 1951, every
CANDIDATE is required to deliver to the returning officer “a
H nomination paper completed in the prescribed form…”. The
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 899
SHUKLA v. UNION OF INDIA

expression “prescribed” is defined under Section 2(g) to mean A
“prescribed by rules made under this Act”. Section 169 authorises
the Government of India by notification in the Official Gazette to
make rules for carrying out the purposes of the Act. Therefore,
the contents of the nomination form could be determined by the
Rules. [Para 51] [933-D]
B
1.11 Amendment of the RP Act of 1951 is a matter
exclusively within the domain of the Parliament. It is well settled
that no court could compel and no writ could be issued to compel
any legislative body to make a law. It must be left to the wisdom
of the legislature. Prayers 1(2) and 3, insofar as they seek
directions in the nature of mandamus to consider amendment of C
the RP Act of 1951 cannot be granted. In prayer 1(1), the petitioner
seeks a direction to respondent Nos.1 and 2 to make changes in
Form 26 prescribed under Rule 4A of the RULES, which would
provide for calling upon the CANDIDATES to declare their
sources of income along with the sources of the income of their D
respective ASSOCIATES. The prescription such as the one
sought by the petitioner regarding the disclosure of the sources
of income of the CANDIDATE and his/her ASSOCIATES in a
nomination could certainly be made by making appropriate Rules.
The Government of India, functioning as a statutory body for
prescribing rules under the RP Act of 1951, is amenable to writ E
jurisdiction under Article 32 for the enforcement of the
fundamental right under Article 19(1)(a) of the voter to know the
relevant information with respect to the candidates. Respondent
Nos.1 and 2 are constitutionally obliged to implement the
directions given by this Court in exercise of its jurisdiction under F
the Constitution. It may also be noticed that Section 169(1) of
the RP Act of 1951 obligates the Government of India to make
Rules after consulting the Election Commission. The information
regarding the sources of income of the LEGISLATORS and their
ASSOCIATES and CANDIDATES is relevant and
LEGISLATORS and CANDIDATES could be compelled even G
by subordinate legislation. There is no reason for declining prayer
1(1). [Paras 53, 54] [934-B-E; 935-A-B]
1.12 In the light of the law declared by this Court in ADR
case and PUCL case, there is no legal or normative impediment
H
900 SUPREME COURT REPORTS [2018] 2 S.C.R.

A nor has any tenable legal objection been raised by any one of the
respondents, for issuance of the direction relating to the changes
in FORM 26 (declaration by the CANDIDATES). Therefore, the
1(1) should be granted and is accordingly granted. It is directed
that Rule 4A of the RULES and Form 26 appended to the RULES
shall be suitably amended, requiring CANDIDATES and their
B
ASSOCIATES to declare their sources of income. [Para 55] [935-
C, F]
People’s Union for Civil Liberties (PUCL) & Another v.
Union of India & Another (2003) 4 SCC 399 – relied on.
C 1.13 In prayer 1(3)(ii), the petitioner seeks a direction for
establishment of a permanent mechanism to inquire/ investigate
into the disproportionate increase in the assets of LEGISLATORS
during their tenure as LEGISLATORS. Note has already been
taken of (i) the fact that increase in the assets of the
LEGISLATORS and/or their ASSOCIATES disproportionate to
D 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
E obligations of LEGISLATORS and their ASSOCIATES, their
assets and sources of income are required to be continuously
monitored to maintain the purity of the electoral process and
integrity of the democratic structure of this country. Justice Louis
D. Brandeis, perceptively observed: “the most important political
office is that of the private citizen.” The citizen, the ultimate
F 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
G those holding or aspiring to hold public offices, of the State. [Paras
56-58] [936-A-E]
1.14 The State owes a constitutional obligation to the people
of the country to ensure that there is no concentration of wealth
to the common detriment and to the debilitation of democracy.
H Therefore, it is necessary, as rightly prayed by the petitioner, to
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 901
SHUKLA v. UNION OF INDIA

have a permanent institutional mechanism dedicated to the task. A
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
B
ASSOCIATES or place the information before the appropriate
legislature to consider the eligibility of such LEGISLATORS to
continue to be members of the concerned House of the
legislature. Further, data so collected by the said mechanism,
along with the analysis and recommendation, if any, as noted above
should be placed in the public domain to enable the voters of C
such LEGISLATOR to take an informed and appropriate decision,
if such LEGISLATOR chooses to contest any election for any
legislative body in future. For the reasons mentioned above,
prayer 1(3)(ii) of the 1st respondent is allowed. [Paras 59-61] [936-
F-H; 937-A-B]
D
1.15 In prayer 1(3)(i), the petitioner prays that an inquiry/
investigation be conducted into the “disproportionate increase
in the assets” of the LEGISLATORS named in Annexure P-6 to
the writ petition. An inquiry/investigation such as the one sought
for by the petitioner with reference to the named LEGISLATORS
would amount to selective scrutiny of the matter in the absence E
of any permanent mechanism regularly monitoring the growth of
the assets of all the LEGISLATORS and/or their ASSOCIATES
as a class. Such a selective investigation could lead to political
witch-hunting. Therefore, this relief is declined at this stage. [Para
62] [937-C-D] F
1.16 Prayer no.2 seeks a declaration that non-disclosure
of assets and sources of income would amount to ‘undue influence’
– a corrupt practice under Section 123(2) of the RP Act of 1951.
The non-disclosure of assets and sources of income of the
CANDIDATES and their ASSOCIATES would constitute a G
corrupt practice falling under heading ‘undue influence’ as defined
under Section 123(2) of the RP Act of 1951. Therefore, prayer
No.2 is allowed. [Paras 63, 64] [937-E; 938-B; 939-E]
1.17 In Prayer No. 4, the petitioner is only seeking
information regarding the contracts, if any with the appropriate H
902 SUPREME COURT REPORTS [2018] 2 S.C.R.

A government either by the candidate or his/her spouse and
dependants. In the light of the foregoing discussion, the
information such as the one required under the above-mentioned
prayer is certainly relevant information in the context of
disqualification on the ground of undue accretion of assets,
therefore, there is no objection for granting the relief as prayed
B
for. [Para 65-66] [939-F-H]
1.18 Further, the petitioner seeks Form 26 be amended to
provide certain further information. An analysis of the information
sought indicates that all the information is in the context of
statutorily prescribed disqualifications under the RP Act of 1951.
C Such information would certainly be relevant and necessary for a
voter to make an appropriate choice at the time of the election
whether to vote or not in favour of a particular candidate.
Therefore, all the six prayers made by way of Prayer no. 5 in I.A.
No. 8 are allowed. [Para 67] [939-A-B]
D Samant N. Balkrishna & Another v. George Fernandez
& Others, (1969) 3 SCC 238 : [1969] 3 SCR 603; P. V.
Narasimha Rao v. State (1998) 4 SCC 626 : [1998] 2
SCR 870; Bharat Sanchar Nigam Limited vs. Telecom
Regulatory Authority of India and Others (2014) 3 SCC
E 222 : [2013] 12 SCR 999; Emperor v. Sibnath Banerji
(1944-45) 71 IA 241 : AIR 1945 PC 156; State of Bihar
v. Project Uchcha Vidya, Shiksha Sangh (2006) 2 SCC
545 : [2006] 1 SCR 14; Bhuvan Mohan Patnaik &
Others v. State of Andhra Pradesh (1975) 3 SCC 185 :
[1975] 2 SCR 24; State of J&K v. Lakhwinder Kumar
F (2013) 6 SCC 333 : [2013] 2 SCR 1070 ; V.T Khanzode
v. Reserve Bank of India (1982) 2 SCC 7 : [1982] 3
SCR 411; BSNL vs. TRAI (2014) 3 SCC 90; Afzal Ullah
v. State of UP AIR 1964 SC 264 : [1964] SCR 991 –
referred to.
G J. K. Industries Limited &Anr vs. Union of India (2007)
13 SCC 673 : [2007] 12 SCR 136; Krishnamoorthy v.
Sivakumar & Others (2015) 3 SCC 467 : [2015] 4
SCR 987 – relied on.
Case Law Reference
H [1969] 3 SCR 603 referred to Para 15
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 903
SHUKLA v. UNION OF INDIA

[2002] 3 SCR 696 relied on Para 23 A
[1998] 2 SCR 870 referred to Para 35
[1963] SCR 721 relied on Para 39
[2013] 12 SCR 999 referred to Para 39
[2007] 12 SCR 136 relied on Para 41
B
[2007] 1 SCR 317 relied on Para 43
[2006] 1 SCR 14 referred to Para 50
[1975] 2 SCR 24 referred to Para 50
AIR 1945 PC 156 referred to Para 50
[2013] 2 SCR 1070 referred to Para 51 C
[1982] 3 SCR 411 referred to Para 51
[1964] SCR 991 referred to Para 51
(2003) 4 SCC 399 relied on Para 55
[2015] 4 SCR 987 relied on Para 63
D
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
784 of 2015
Under Article 32 of the Constitution of India.
K. K. Venugopal, AG, P. S. Narsimha, ASG, K. Radhakrishnan,
Ms. Meenakshi Arora, Sr. Advs, S. S. Shukla (Petitioner-in-person), Ms. E
Kamini Jaiswal, Ms. Rani Mishra, Jatinderpal Singh, Ms. Shruti Dyutt,
Ms. Vimla Sinha, Ms. Sushma Manchanda, Tufail A. Khan, B. V. Balram
Das, Merusagar Samantaray, Ms. Madhvi Diwan, Ms. Lhingneivah,
Ms. Viddusshi, Ankur Talwar, Mukesh Kumar Maroria, Mrs. Anil Katiyar,
B. Krishna Prasad, Mohit D. Ram, Advs., for the appearing parties.
F
The Judgment of the Court was delivered by
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, G
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. 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 H
904 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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
B 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’;
C and the membership of the legislature of the various States, some of
them unicameral and some bicameral. Under Article 3242 an Election
Commission was established for the overall superintendence and control
of such elections.

D 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.
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
E 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
F 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
G 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
H
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 905
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

4. With reference to elections to each of the abovementioned A
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.
B
5. Article 3264 stipulates that the elections to the House of 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. C
(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, D
(b) has completed the age of thirty five years, and
(c) is qualified for election as a member of the House of the People
(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 E
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 F
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 G
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. H
906 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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.
B
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. So also in the case of
C the offices of the President and Vice-President.
6. Every person, who is entitled to vote at an election to the
membership of the Parliament, is not automatically entitled to become a
member of the Parliament. Article 84(b)5 stipulates any person seeking
to become a member of House of People (Lok Sabha) must be not less
D 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.
E
7. Constitution also prescribes certain disqualifications for
contesting any election to any of the abovementioned bodies. 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.
5
Article 84. Qualification for membership of Parliament- A person shall not be
F 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
G 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—
H (b) has completed the age of thirty-five years;
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 907
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

“Article 102. Disqualifications for membership A
(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
(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 C
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 D
House of Parliament if he is so disqualified under the Tenth
Schedule.”
8. Article 1919 stipulates similar disqualifications for the
membership of the State Legislatures. Article 58(1)(c)10 and Article
66(3)(c)11 of the Constitution stipulates in the context of President and E
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; F
(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.
G
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 H
908 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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-
B
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,
C 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. Entry 7212 of List I of the Seventh Schedule of the Constitution
of India and Entry 3713 of List II are the fields of legislative authority
D 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
E 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
F 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 disqualification for voting, obviously, referable to the authority
of Parliament under Article 326.
G
12. The expression ‘disqualified’ is defined under Section 7(b) of
the RP Act of 1951 as follows:
12
Entry 72. Elections to Parliament, to the Legislatures of States and to the offices of
President and Vice-President; the Election Commission.
13
Entry 37. Elections to the Legislature of the State subject to the provisions of any
H law made by Parliament
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 909
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

“Section 7. Definitions. – In this Chapter, - A
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.” B

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. C

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 D
each one of them is capable of being committed only either by a
“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.
E
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:
F
“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 G
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.
H
910 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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 the State Legislature if “there subsists a contract entered
B
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
C 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

D 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
E 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
F 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” w ould appear to be
unnecessary because an election agent is the alter ego of the candidate in
G the scheme of the Act and his acts are the acts of the candidate, consent or no
consent on the part of the candidate.
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;
H
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 911
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

between the date of nomination of the candidate and the declaration of A
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.
B
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 C
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 D
***** ***** ***** ***** *****
(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 E
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
F
between order and chaos.
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 10017stipulates various grounds on which an election
17
Section 100. Grounds for declaring election to be void.— (1) Subject to the G
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 H
912 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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.
B
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.
C
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 Committee 19
constituted by the Government of India etc. pointed out various
D
(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
E (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—
F (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
G 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
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
H for debarring a candidate from contesting an election if charges have been
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 913
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

shortcomings in the working of the democracy and the need to address A
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). B
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
C
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: D
“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 E
agencies. In this context DIB has given the following examples:
(i) In certain States like Bihar, Haryana and U.P., these gangs enjoy the
patronage of local-level politicians, cutting across party lines and the
protection of governmental functionaries. Some political leaders become
the leaders of these gangs, armed senas and over the years get themselves
elected to local bodies, State Assemblies and the national Parliament.
Resultantly, such elements have acquired considerable political clout seriously F
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, G
including hawala transactions, circulation of black money and operations of
a vicious parallel economy causing serious damage to the economic fibre 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.” H
914 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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.
B
This Court opined that since the law made by Parliament did not
make appropriate provisions compelling candidates at an election, either
to the Parliament or the legislative bodies of the State, to disclose
information regarding the above-mentioned factors, Election Commission
in exercise of its power under Article 324 of the Constitution of India is
C 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):
D
“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,
E 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.
F
(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.
G
(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.
H (5) The educational qualifications of the candidate.”
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 915
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

24. Subsequent20 to the said judgment, Parliament chose to amend A
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 B
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
C
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 D
issued in Union of India v. Association for 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, E
hereafter referred to as “PUCL case”. This Court held Section 33B to
be beyond the legislative competence of the Parliament. This Court
recorded21 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 F
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.
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)
21
“78. … The Amended Act does not wholly cover the directions issued by this Court. G
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). H
916 SUPREME COURT REPORTS [2018] 2 S.C.R.

A As a corollary to the said mandate, Rule 4A23 was inserted in the Conduct
of Election Rules, 1961 (hereafter referred to as the RULES) stipulating
that an affidavit in the Form No.26 is required to be filed. The form, as
originally prescribed under Rule 4A w.e.f. 3.9.2002, stood substituted
w.e.f. 1.8.2012. The form, inter alia, requires information regarding the
Permanent Account Numbers (PAN) given by the Income Tax authorities
B
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
C 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
D 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 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
E 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
F 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
G representatives who misuse their position for amassing wealth
are brought to book.
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
H first class or a Notary in Form 26.
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 917
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

… A list of re-elected MPs and MLAs whose assets are A
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
B
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 C
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.”
D
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 E
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 F
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 G
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 –
H
918 SUPREME COURT REPORTS [2018] 2 S.C.R.

A (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
B 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;
C (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,
(ii) have a permanent mechanism to take similar action in
D 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
E
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.
F
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
G 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
H dependents directly or by Hindu undivided family/trust/partnership
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 919
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

firm(s)/private company (companies) in which the candidate and A
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 B
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 C
that Form 26 may be further amended to provide the following
information
I. Whether the candidate was found guilty of a corrupt
practice u/S 99 of the RP Act of 1951?
D
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? E
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 F
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 G
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.
H
920 SUPREME COURT REPORTS [2018] 2 S.C.R.

A “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
B
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
C that it is time to cleanse the Augean stable.
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
D 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
E note of the fact that in certain democratic countries, laws exist24
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
F would not be conducive to the general welfare of the 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
G guaranteeing that the economic system does not result in 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
H were enacted to “monitor and deter possible conflicts of interests”.
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 921
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

concentration of wealth and means of production to the common A
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
B
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 C
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 candidates. The
result of such an election cannot reflect the true choice of the D
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 abuse25 of E
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 F
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 G
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

25
“behind every great fortune lies a great crime” - BALZAC H
922 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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
B 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.
C (i) There are known cases of availing of huge amount of loans
for allegedly commercial purposes from public financial
institutions by LEGISLATORS or their ASSOCIATES
either directly or through bodies corporate which are
controlled by them; a notorious fact in a good number of
cases. Such loan accounts become non-performing assets27
D (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
26
Section 7 of the PC Act.
E “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
F 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.”
27
Section 2(o) “non-performing asset” means an asset or account of a borrower, which
G 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
H to assets classifications issued by the Reserve Bank;”
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 923
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

become NPAs are able to secure fresh loans in huge A
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 B
which enables LEGISLATORS and their ASSOCIATES
to acquire huge assets. It is worth mentioning here that
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 C
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
9A29 was introduced which enables the ASSOCIATES of
the LEGISLATORS either directly or through a body D
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 were received by taking undue advantage of the E
office of the LEGISLATOR.
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 F
(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
G
(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. H
924 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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
B 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
C 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
D
their hands.
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
E
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,
30
13. Criminal misconduct by a public servant.—(1) A public servant is said to
commit the offence of criminal misconduct,
F (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
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
G 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
H which may extend to ten years and shall also be liable to fine.
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 925
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

such a misconduct is an offence punishable with imprisonment for a A
period up to 10 years and also liable to fine.
This Court has already held that a LEGISLATOR is a public
servant32. Section 8(1)(m)33 of the RP Act of 1951 declares34 that a
person convicted for an offence under the PC Act, 1988 is disqualified35
both for being chosen or continuing as a LEGISLATOR. B
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 C
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
32
P. V. Narasimha Rao v. State, (1998) 4 SCC 626
“Para 85. Having considered the submissions of the learned counsel on the D
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-
E
(i) only fine, for a period of six years from the date of such conviction;
(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 F
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 G
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.” H
926 SUPREME COURT REPORTS [2018] 2 S.C.R.

A imprisonment for not less than 6 months for offences under the provisions
of various enumerated offences under Section 8 of the RP Act of 1951
are disqualified either for being chosen or continuing as a LEGISLATOR.
The petitioner seeks such a disqualification to be imposed even in the
absence of a conviction under the provisions of the PC Act.
B 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
C 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
D commencing from Dr. Indramani Pyarelal Gupta & others vs. W.R.
Natu & others, AIR 1963 SC 27437 and a constitution bench of this
Court held at para 15:
“……. The meaning of the words, “under the Act” is well-known.
“By” an Act would mean by a provision directly enacted in the
E 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-
F laws made by a subordinate law-making authority which is
empowered to do so by the parent Act. The distinction is thus

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.
G 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.
37
See also Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority of
H India and Others, (2014) 3 SCC 222, para 90.
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 927
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

between what is directly done by the enactment and what is A
done indirectly by rule-making authorities which are vested with
powers in that behalf by the Act. ……….. That in such a sense
bye-laws would be subordinate legislation “under the Act” is
clear from the terms of Ss.11 and 12 themselves.”
We are of the opinion that the ratio of the judgment applies in all force to B
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 C
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 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 D
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 E
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 F
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 Act of 1951.39 Section
169(2) authorizes the making of rules for carrying out the purposes of G
the Act – ‘without prejudice to the generality of the power to make
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.
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. H
928 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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
B 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
C well settled that a given set of facts may in law give rise to both civil and
criminal consequences. For example; in the context of employment under
State, a given set of facts can give rise to a prosecution for an offence
and also simultaneously form the basis for disciplinary action under the
relevant Rules governing the service of an employee.
D 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
E 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.
F
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
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
G 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.
41
See paragraph 43 Per. Sabharwal, CJI.
42
H See paragraph 318, Per. Sabharwal, CJI.
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 929
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

on which a member could be expelled or the procedure which is required A
to be followed. Though 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.
B
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 C
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 D
UNDUE ACCRETION OF ASSETS would render a LEGISLATOR
disqualified within the meaning 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, E
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 F
“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 G
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, certainly
43
Id. at paragraphs 144 and 145 H
930 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 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
B 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
C 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
D 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 33 of the RP Act of 1951 etc.);
E and (ii) the sources of their income.
49. The obligation to make the second of the above-mentioned
two declarations arises as a corollary to the fundamental right of the
voter under Article 19(1)(a) to know the relevant information with respect
to the CANDIDATE, to enable the voter to make an assessment and
F 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.
G 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
44
We must make it clear that nothing in law prevents a vigilant citizen from collecting
H such data for initiating appropriate proceedings in accordance with law.
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 931
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

Constitution expressly permits the structuring of those rights by the A
Parliament by or under the authority of law by prescribing further
qualifications or disqualifications.45 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
B
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
45
See Articles 84(c), 102(1)(e), 173(c) and 191(1)(e)
Article 84. Qualification for membership of Parliament.— A person shall not be
qualified to be chosen to fill a seat in Parliament unless he— C
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 D
(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 E
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.
46
Section 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 F
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:
G
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. H
932 SUPREME COURT REPORTS [2018] 2 S.C.R.

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
B
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
C 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
D 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
E 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
F 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

H
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
51. 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
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.
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)

H
934 SUPREME COURT REPORTS [2018] 2 S.C.R.

A 53. 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.
54. 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
D 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
E 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 A
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
B
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 C
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 D
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.
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
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
936 SUPREME COURT REPORTS [2018] 2 S.C.R.

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
B 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.
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
C 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
D 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
E 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.
59. The State owes a constitutional obligation to the people of the
F 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
H the legislature.
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 937
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

60. Further, data so collected by the said mechanism, along with A
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.
61. For the reasons mentioned above, we allow the prayer 1(3)(ii) B
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. 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.
63. 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 F
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
G
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
938 SUPREME COURT REPORTS [2018] 2 S.C.R.

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. …”
64. For the very same logic as adopted by this Court in
Krishnamoorthy, we are also of the opinion that the non-disclosure of
assets and sources of income of the CANDIDATES and their
ASSOCIATES would constitute a corrupt practice falling under heading
E ‘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.
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
G 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
H as prayed for.
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. 939
SHUKLA v. UNION OF INDIA [CHELAMESWAR, J.]

67. 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.
68. The writ petition is allowed as indicated above, but, in the
circumstances, without any costs.
C

Divya Pandey Writ Petition allowed.

D

E

F

G

H