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

- **Citation:** [2018] 2 S.C.R. 892
- **Court:** Supreme Court of India
- **Decided:** 2018-02-16
- **Bench:** J. Chelameswar, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lok-prahari-through-its-general-secretary-s-n-shukla-v-union-of-india-others-32744
- **Pages:** 48

## Headnote

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
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
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
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
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 nondisclosure of assets and sources of income would amount to 'undue
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,
prayer nos. 1(2) and 3 insofar as they seek directions in the nature
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of mandamus to consider amendment of the RP Act of 1951 and
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
of Corruption Act, 1988 - ss.13(1)(e), 13(2) - Election Laws -
Electoral Reforms.
The Representation of the People Act, 1951 - s. 169 - Rule
making power under, of Central Government - Discussed -
Administrative Law - Subordinate Legislation.
Writs - When cannot be issued - Writ petition filed inter alia
seeking direction to respondents for amendment of provisions of
the 1951 Act - Held: No writ could be issued to compel any legislative
body to make a law - Hence, prayers seeking directions to
respondents for amendment of the provisions of the 1951 Act cannot
be granted - The Representation of the People Act, 1951.
Allowing the writ petition, the Court
HELD: 1.1 The Representation of the People Act, 1951
contains various provisions in Chapter III of Part II stipulating
the disqualifications for membership of Parliament and State
Legislatures. They are Sections 8, 8A, 9, 9A, 10 and 10A. Chapter
IV of Part II contains a provision stipulating a disqualification for
voting, obviously, referable to the authority of Parliament under
Article 326. The expression 'disqualified' is defined under
Section 7(b) of the RP Act of 1951. [Paras 11, 12] [908-F-G]
1.2 Section 33A mandates that a candidate is also required
to deliver to the returning officer at the time of the filing of
nomination an affidavit sworn by the candidate in the prescribed
form. As a corollary to the said mandate, Rule 4A was inserted in
the Conduct of Election Rules, 1961 (hereafter referred to as
the RULES) stipulating that an affidavit in the Form No.26 is
required to be filed. The form, as originally

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LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N.
SHUKLA
v.
UNION OF INDIA & OTHERS
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
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
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
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
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 nondisclosure of assets and sources of income would amount to 'undue
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,
prayer nos. 1(2) and 3 insofar as they seek directions in the nature
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of mandamus to consider amendment of the RP Act of 1951 and
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
of Corruption Act, 1988 - ss.13(1)(e), 13(2) - Election Laws -
Electoral Reforms.
The Representation of the People Act, 1951 - s. 169 - Rule
making power under, of Central Government - Discussed -
Administrative Law - Subordinate Legislation.
Writs - When cannot be issued - Writ petition filed inter alia
seeking direction to respondents for amendment of provisions of
the 1951 Act - Held: No writ could be issued to compel any legislative
body to make a law - Hence, prayers seeking directions to
respondents for amendment of the provisions of the 1951 Act cannot
be granted - The Representation of the People Act, 1951.
Allowing the writ petition, the Court
HELD: 1.1 The Representation of the People Act, 1951
contains various provisions in Chapter III of Part II stipulating
the disqualifications for membership of Parliament and State
Legislatures. They are Sections 8, 8A, 9, 9A, 10 and 10A. Chapter
IV of Part II contains a provision stipulating a disqualification for
voting, obviously, referable to the authority of Parliament under
Article 326. The expression 'disqualified' is defined under
Section 7(b) of the RP Act of 1951. [Paras 11, 12] [908-F-G]
1.2 Section 33A mandates that a candidate is also required
to deliver to the returning officer at the time of the filing of
nomination an affidavit sworn by the candidate in the prescribed
form. As a corollary to the said mandate, Rule 4A was inserted in
the Conduct of Election Rules, 1961 (hereafter referred to as
the RULES) stipulating that an affidavit in the Form No.26 is
required to be filed. The form, as originally prescribed under
Rule 4A w.e.f. 3.9.2002, stood substituted w.e.f. 1.8.2012. The
form, inter alia, requires information regarding the Permanent
Account Numbers (PAN) given by the Income Tax authorities to
the CANDIDATE. It also requires details of the assets (both
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movable and immovable) of their spouses and dependants
(collectively referred as ASSOCIATES). [Para 26] [915-F; 916A-B]
OFFENCE:
1.3 Provisions already exist in the Prevention of Corruption
Act, 1988 (hereafter the PC Act) specifying various activities
enumerated therein to be offences. For example: Under Section
13(1)(e) of the PC Act, it is misconduct for a public servant to be
in possession either personally or through some other person,
"of pecuniary resources or property disproportionate to his known
sources of income." Under Section 13(2), such a misconduct is
an offence punishable with imprisonment for a period up to 10
years and also liable to fine. This Court has already held that a
LEGISLATOR is a public servant. Section 8(1)(m) of the RP Act
of 1951 declares that a person convicted for an offence under the
PC Act, 1988 is disqualified both for being chosen or continuing
as a LEGISLATOR (the members of the Parliament and the State
Legislatures referred to as "LEGISLATORS"). [Para 35] [924E; 925-A-B]
DISQUALIFICATION:
1.4 Under Section 8(1)(m) of the RP Act of 1951, it is
provided that persons convicted and sentenced to imprisonment
for not less than 6 months for offences under the provisions of
various enumerated offences under Section 8 of the RP Act of
1951 are disqualified either for being chosen or continuing as a
LEGISLATOR. The petitioner seeks such a disqualification to
be imposed even in the absence of a conviction under the
provisions of the PC Act. [Para 37] [925-C-D; 926-A-B]
1.5 Parliament has prescribed various disqualifications in
Chapter III of Part II of the RP Act of 1951 (Sections 8, 8A, 9,
9A, 10 and 10A). Each of those disqualifications arises out of
various factors specified under each of those sections. Undue
accumulation of wealth (assets of the LEGISLATORS) is not one
of the grounds specified either under any of the abovementioned
provisions or under Articles 102 and 191 of the Constitution which
stipulate some of the disqualifications. However, both the Articles
stipulate that the Parliament may, by or under any law, prescribe
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disqualifications other than those specified thereunder. [Para 38]
[926-B-C]
Dr. Indramani Pyarelal Gupta & others vs. W.R. Natu
& others AIR 1963 SC 274 : [1963] SCR 721 - relied on.
1.6 Manifold and undue accretion of assets of
LEGISLATORS or their ASSOCIATES by itself might be a good
ground for disqualifying a person either to be a LEGISLATOR
or for seeking to get re-elected as a LEGISLATOR. Statutes
made by the Parliament are silent in this regard. But Section
169(1) of the RP Act of 1951 authorises the central government
to make rules for carrying out the purposes of the Act. If the
nation believes that those who are elected to its legislative bodies
ought not to take undue advantage of their election to the
LEGISLATURE for accumulation of wealth by resorting to means,
which are inconsistent with the letter and spirit of the Constitution
and also the laws made by the legislature, appropriate
prescriptions are required to be made for carrying out the purpose
of the RP Act of 1951. The purpose of prescribing disqualifications
is to preserve the purity of the electoral process. Purity of
electoral process is fundamental to the survival of a healthy
democracy. There is no prohibition either under the Constitution
or the laws made by the Parliament disabling or stipulating that
the central government should not make rules (in exercise of
the powers conferred by the Parliament under Section 169 of the
RP Act of 1951 read with Articles 102(1)(e) and 191(1)(e) of the
Constitution) providing for such disqualification. On the other
hand, Parliament under Section 169 of the RP Act of 1951
authorised the Government of India to make rules for carrying
out the purposes of the Act. The Conduct of Election Rules, 1961
is an example of subordinate legislation; enacted by the Central
Government pursuant to the power given under Section 169(1)
of the RP Act of 1951. Section 169(2) authorizes the making of
rules for carrying out the purposes of the Act - 'without prejudice
to the generality of the power to make Rules'. The power under
Section 169 is very wide. The function of rule-making is to fill up
the gaps in the working of a statute because no legislature can
ever comprehend all possible situations which are required to
be regulated by the statute. Logically, there is no difficulty in
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accepting the submission of the petitioner in the light of the
mandate of the directive principles and the prescription of the
Parliament under the PC Act that such undue accretion of wealth
is a culpable offence. There is a need to make appropriate
provision declaring that the UNDUE ACCRETION OF ASSETS
is a ground for disqualifying a LEGISLATOR even without
prosecuting the LEGISLATOR for offences under the PC Act.
It is well settled that a given set of facts may in law give rise to
both civil and criminal consequences. For example; in the context
of employment under State, a given set of facts can give rise to a
prosecution for an offence and also simultaneously form the basis
for disciplinary action under the relevant Rules governing the
service of an employee. [Paras 40-42] [927-C-G; 928-A-D]
1.7 It is always open to the LEGISLATURE to declare that
any member thereof is unfit to continue as such. If a temporary
disqualification could be imposed on a LEGISLATOR even in
the absence of any legislative prescription, in the light of the
Scheme and tenor of Articles 102(1)(e) and 191(1)(e) read with
Section 169 of the RP Act of 1951, the Government of India would
undoubtedly be competent to make such a stipulation by making
appropriate Rules declaring that UNDUE ACCRETION OF
ASSETS would render a LEGISLATOR "disqualified". Further,
it would be equally competent for the Government of India to
establish a permanent mechanism for monitoring the financial
affairs of the LEGISLATORS and their ASSOCIATES for
periodically ascertaining the relevant facts. Because the
establishment of such a permanent mechanism would be a
necessary incident of the authority to declare a LEGISLATOR
"disqualified". [Paras 43, 46] [928-D; 929-E-G]
Raja Ram Pal v. Hon'ble Speaker, Lok Sabha & Others
(2007) 3 SCC 184 : [2007] 1 SCR 317- relied on.
INFORMATION TO THE VOTER:
1.8 The information regarding the sources of income of the
CANDIDATES and their ASSOCIATES, would certainly help the
voter to make an informed choice of the candidate to represent
the constituency in the LEGISLATURE. It is, therefore, a part
of the fundamental right under Article 19(1)(a) as explained by
this Court in ADR case. Collection of such data can be undertaken
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by any governmental agency or even the Election Commission.
The enforcement of such a fundamental right needs no statutory
sanction. This Court and the High Courts are expressly authorized
by the Constitution to give appropriate directions to the State
and its instrumentalities and other bodies for enforcement of
Fundamental Rights. On the other hand, nobody has the
fundamental right to be a LEGISLATOR or to contest an election
to become a LEGISLATOR. They are only constitutional rights
structured by various limitations prescribed by the Constitution
and statutes like the RP Act of 1951. The Constitution expressly
permits the structuring of those rights by the Parliament by or
under the authority of law by prescribing further qualifications or
disqualifications. To contest an election for becoming a legislator,
a CANDIDATE does not require the consent of all the voters
except the appropriate number of proposers being electors of
the Constituency, and compliance with other procedural
requirements stipulated under the RP Act of 1951 and the rules
made thereunder. But to get elected, every CANDIDATE
requires the approval of the 'majority' of the number of voters of
the Constituency choosing to exercise their right to vote. Voters
have a fundamental right to know the relevant information about
the CANDIDATES. For reasons discussed earlier, the financial
background in all its aspects, of the CANDIDATE and his/her
ASSOCIATES is relevant and critical information. Therefore, a
CANDIDATE'S constitutional right to contest an election to the
legislature should be subservient to the voter's fundamental right
to know the relevant information regarding the CANDIDATE;
information which is critical to the making of an informed and
rational choice in this area. [Paras 47-49] [929-H; 930-A, D, F-G;
931-A-B; 932-A-B]
Union of India v. Association for Democratic Reforms
and Another (2002) 5 SCC 294 : [2002] 3 SCR 696 -
relied on.
1.9 No doubt, compelling a CANDIDATE to disclose the
relevant information, would to an extent be a legal burden on the
CANDIDATE'S constitutional right to contest an election. The
question, therefore, is whether it requires a statutory sanction to
create such compulsion. When the scheme of the Constitution is
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analysed, rights falling under the Fundamental Rights chapter
cannot be abrogated or taken away except by authority of law.
Law in the context has always been held by this Court to require
statutory basis. There are various other rights conferred by the
Constitution other than the fundamental rights. Whenever it was
thought fit that such rights should be curtailed, the text of the
Constitution made a declaration to that effect and also stipulated
the manner in which such rights could be controlled or regulated.
Article 102 is a limitation on the constitutional right of the citizens
to seek the membership of the Parliament. It prescribes certain
disqualifications for being chosen as or for a being a Member of
either House of the Parliament. It further declares that apart from
the enumerated disqualifications, other disqualifications could be
prescribed by or under any law made by the Parliament. In other
words, Parliament could itself prescribe disqualifications or could
authorize some other body or authority to prescribe such
disqualifications. Similar is the structure of Article 84 with respect
to qualifications for membership of Parliament. A disqualification
could be prescribed by a Rule. Logically there cannot be any
objection for imposing the legal burden upon the CANDIDATES
to disclose the relevant information by RULES (subordinate
legislation) under the RP Act of 1951. Form 26 provides for
various kinds of information to be disclosed by the candidate. It
cannot be said that the existing information required to be
disclosed under the Affidavit is exhaustive of all the information
a candidate needs to provide. Neither is the information provided
under Section 33A an exhaustive list. This is because any
embargo placed on the voters' right to know the relevant
information to be disclosed by the candidate is subject to scrutiny
under the fundamental right of the voter under Article 19(1)(a).
Therefore, any limitation on information to voter cannot be
inferred. Form 26 is only indicative of the information which is
required to enable the voter to make an informed choice. And
there is no legal bar in Section 169(2) to fetter the Central
Government's rule making power from making such information
available. [Para 50] [932-C-G; 933-A-C]
1.10 Under Section 33 of the RP Act of 1951, every
CANDIDATE is required to deliver to the returning officer "a
nomination paper completed in the prescribed form...". The
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expression "prescribed" is defined under Section 2(g) to mean
"prescribed by rules made under this Act". Section 169 authorises
the Government of India by notification in the Official Gazette to
make rules for carrying out the purposes of the Act. Therefore,
the contents of the nomination form could be determined by the
Rules. [Para 51] [933-D]
1.11 Amendment of the RP Act of 1951 is a matter
exclusively within the domain of the Parliament. It is well settled
that no court could compel and no writ could be issued to compel
any legislative body to make a law. It must be left to the wisdom
of the legislature. Prayers 1(2) and 3, insofar as they seek
directions in the nature of mandamus to consider amendment of
the RP Act of 1951 cannot be granted. In prayer 1(1), the petitioner
seeks a direction to respondent Nos.1 and 2 to make changes in
Form 26 prescribed under Rule 4A of the RULES, which would
provide for calling upon the CANDIDATES to declare their
sources of income along with the sources of the income of their
respective ASSOCIATES. The prescription such as the one
sought by the petitioner regarding the disclosure of the sources
of income of the CANDIDATE and his/her ASSOCIATES in a
nomination could certainly be made by making appropriate Rules.
The Government of India, functioning as a statutory body for
prescribing rules under the RP Act of 1951, is amenable to writ
jurisdiction under Article 32 for the enforcement of the
fundamental right under Article 19(1)(a) of the voter to know the
relevant information with respect to the candidates. Respondent
Nos.1 and 2 are constitutionally obliged to implement the
directions given by this Court in exercise of its jurisdiction under
the Constitution. It may also be noticed that Section 169(1) of
the RP Act of 1951 obligates the Government of India to make
Rules after consulting the Election Commission. The information
regarding the sources of income of the LEGISLATORS and their
ASSOCIATES
and
CANDIDATES
is
relevant
and
LEGISLATORS and CANDIDATES could be compelled even
by subordinate legislation. There is no reason for declining prayer
1(1). [Paras 53, 54] [934-B-E; 935-A-B]
1.12 In the light of the law declared by this Court in ADR
case and PUCL case, there is no legal or normative impediment
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nor has any tenable legal objection been raised by any one of the
respondents, for issuance of the direction relating to the changes
in FORM 26 (declaration by the CANDIDATES). Therefore, the
1(1) should be granted and is accordingly granted. It is directed
that Rule 4A of the RULES and Form 26 appended to the RULES
shall be suitably amended, requiring CANDIDATES and their
ASSOCIATES to declare their sources of income. [Para 55] [935C, F]
People's Union for Civil Liberties (PUCL) & Another v.
Union of India & Another (2003) 4 SCC 399 - relied on.
1.13 In prayer 1(3)(ii), the petitioner seeks a direction for
establishment of a permanent mechanism to inquire/ investigate
into the disproportionate increase in the assets of LEGISLATORS
during their tenure as LEGISLATORS. Note has already been
taken of (i) the fact that increase in the assets of the
LEGISLATORS and/or their ASSOCIATES disproportionate to
the known sources of their respective incomes is, by compelling
inference, a constitutionally impermissible conduct and may
eventually constitute offences punishable under the PC Act and
(ii) 'undue influence' within the meaning of Section 123 of the RP
Act of 1951. In order to effectuate the constitutional and legal
obligations of LEGISLATORS and their ASSOCIATES, their
assets and sources of income are required to be continuously
monitored to maintain the purity of the electoral process and
integrity of the democratic structure of this country. Justice Louis
D. Brandeis, perceptively observed: "the most important political
office is that of the private citizen." The citizen, the ultimate
repository of sovereignty in a democracy must have access to all
information that enables critical audit of the performance of the
State, its instrumentalities and their incumbent or aspiring public
officials. It is only through access to such information that the
citizen is enabled/empowered to make rational choices as regards
those holding or aspiring to hold public offices, of the State. [Paras
56-58] [936-A-E]
1.14 The State owes a constitutional obligation to the people
of the country to ensure that there is no concentration of wealth
to the common detriment and to the debilitation of democracy.
Therefore, it is necessary, as rightly prayed by the petitioner, to
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have a permanent institutional mechanism dedicated to the task.
Such a mechanism is required to periodically collect data of
LEGISLATORS and their respective ASSOCIATES and examine
in every case whether there is disproportionate increase in the
assets and recommend action in appropriate cases either to
prosecute the LEGISLATOR and/or LEGISLATOR'S respective
ASSOCIATES or place the information before the appropriate
legislature to consider the eligibility of such LEGISLATORS to
continue to be members of the concerned House of the
legislature. Further, data so collected by the said mechanism,
along with the analysis and recommendation, if any, as noted above
should be placed in the public domain to enable the voters of
such LEGISLATOR to take an informed and appropriate decision,
if such LEGISLATOR chooses to contest any election for any
legislative body in future. For the reasons mentioned above,
prayer 1(3)(ii) of the 1st respondent is allowed. [Paras 59-61] [936F-H; 937-A-B]
1.15 In prayer 1(3)(i), the petitioner prays that an inquiry/
investigation be conducted into the "disproportionate increase
in the assets" of the LEGISLATORS named in Annexure P-6 to
the writ petition. An inquiry/investigation such as the one sought
for by the petitioner with reference to the named LEGISLATORS
would amount to selective scrutiny of the matter in the absence
of any permanent mechanism regularly monitoring the growth of
the assets of all the LEGISLATORS and/or their ASSOCIATES
as a class. Such a selective investigation could lead to political
witch-hunting. Therefore, this relief is declined at this stage. [Para
62] [937-C-D]
1.16 Prayer no.2 seeks a declaration that non-disclosure
of assets and sources of income would amount to 'undue influence'
- a corrupt practice under Section 123(2) of the RP Act of 1951.
The non-disclosure of assets and sources of income of the
CANDIDATES and their ASSOCIATES would constitute a
corrupt practice falling under heading 'undue influence' as defined
under Section 123(2) of the RP Act of 1951. Therefore, prayer
No.2 is allowed. [Paras 63, 64] [937-E; 938-B; 939-E]
1.17 In Prayer No. 4, the petitioner is only seeking
information regarding the contracts, if any with the appropriate
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government either by the candidate or his/her spouse and
dependants. In the light of the foregoing discussion, the
information such as the one required under the above-mentioned
prayer is certainly relevant information in the context of
disqualification on the ground of undue accretion of assets,
therefore, there is no objection for granting the relief as prayed
for. [Para 65-66] [939-F-H]
1.18 Further, the petitioner seeks Form 26 be amended to
provide certain further information. An analysis of the information
sought indicates that all the information is in the context of
statutorily prescribed disqualifications under the RP Act of 1951.
Such information would certainly be relevant and necessary for a
voter to make an appropriate choice at the time of the election
whether to vote or not in favour of a particular candidate.
Therefore, all the six prayers made by way of Prayer no. 5 in I.A.
No. 8 are allowed. [Para 67] [939-A-B]
Samant N. Balkrishna & Another v. George Fernandez
& Others, (1969) 3 SCC 238 : [1969] 3 SCR 603; P. V.
Narasimha Rao v. State (1998) 4 SCC 626 : [1998] 2
SCR 870; Bharat Sanchar Nigam Limited vs. Telecom
Regulatory Authority of India and Others (2014) 3 SCC
222 : [2013] 12 SCR 999; Emperor v. Sibnath Banerji
(1944-45) 71 IA 241 : AIR 1945 PC 156; State of Bihar
v. Project Uchcha Vidya, Shiksha Sangh (2006) 2 SCC
545 : [2006] 1 SCR 14; Bhuvan Mohan Patnaik &
Others v. State of Andhra Pradesh (1975) 3 SCC 185 :
[1975] 2 SCR 24; State of J&K v. Lakhwinder Kumar
(2013) 6 SCC 333 : [2013] 2 SCR 1070 ; V.T Khanzode
v. Reserve Bank of India (1982) 2 SCC 7 : [1982] 3
SCR 411; BSNL vs. TRAI (2014) 3 SCC 90; Afzal Ullah
v. State of UP AIR 1964 SC 264 : [1964] SCR 991 -
referred to.
J. K. Industries Limited &Anr vs. Union of India (2007)
13 SCC 673 : [2007] 12 SCR 136; Krishnamoorthy v.
Sivakumar & Others (2015) 3 SCC 467 : [2015] 4
SCR 987 - relied on.
Case Law Reference
[1969] 3 SCR 603
referred to
Para 15
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903
[2002] 3 SCR 696
relied on
Para 23
[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
[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
[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
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.
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.
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,
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
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N.
SHUKLA v. UNION OF INDIA
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bodies from time to time. Regulation of the right to vote or the right to
contest elections and matters incidental thereto felt necessary.
Democratic societies experiment with various modules of electoral
processes in response to the felt necessities of the times.
3. When our Constitution was adopted, the framers of the
Constitution thought that some of the basic norms regarding the electoral
process, i.e. rights of voting or the right to contest elections to various
bodies established by the Constitution are required to be spelt out in the
Constitution itself. Our Constitution, as originally enacted1, provided for
elections to the offices of President, Vice President, membership of the
Parliament, consisting two houses, the 'Lok Sabha' and the 'Rajya Sabha';
and the membership of the legislature of the various States, some of
them unicameral and some bicameral. Under Article 3242 an Election
Commission was established for the overall superintendence and control
of such elections.
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
to the Legislature of every State and of elections to the offices of President and VicePresident held under this Constitution shall be vested in a Commission (referred to in
this Constitution as the Election Commission.
(2) The Election Commission shall consist of the Chief Election Commissioner and
such number of other Election Commissioners, if any, as the President may from time
to time fix and the appointment of the Chief Election Commissioner and other Election
Commissioners shall, subject to the provisions of any law made in that behalf by
Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election
Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative
Assembly of each State, and before the first general election and thereafter before each
biennial election to the Legislative Council of each State having such Council, the
President may also appoint after consultation with the Election Commission such
Regional Commissioners as he may consider necessary to assist the Election Commission
in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service
and tenure of office of the Election Commissioners and the Regional Commissioners
shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office
except in like manner and on the like grounds as a Judge of the Supreme Court and the
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4. With reference to elections to each of the abovementioned
bodies or offices, the Constitution stipulates certain basic norms, with
respect to right to vote, the right to contest and the limitations on such
rights. Such norms vary with reference to each of these offices or bodies.
Citizenship of the country is a default condition3 either for voting or
contesting an election to any one of the abovementioned bodies.
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.
(6) The President, or the Governor of a State, shall, when so requested by the Election
Commission, make available to the Election Commission or to a Regional Commissioner
such staff as may be necessary for the discharge of the functions conferred on the
Election Commission by clause (1).
3 Article 58. Qualifications for election as President.- (1) No person shall be
eligible for election as President unless he-
(a) is a citizen of India,
(b) has completed the age of thirty five years, and
(c) is qualified for election as a member of the House of the People
(2) A person shall not be eligible for election as President if he holds any office of
profit under the or the Government of any State or under any local or other authority
subject to the control of any of the said Governments.
Explanation For the purposes of this article, a person shall not be deemed to hold any
office of profit by reason only that he is the President or Vice President of the Union or
the Governor of any State or is a Minister either for the Union or for any State
Article 84. Qualification for membership of Parliament.- A person shall not be
qualified to be chosen to fill a seat in Parliament unless he- (a) is a citizen of India, and
makes and subscribes before some person authorised in that behalf by the Election
Commission an oath or affirmation according to the form set out for the purpose in the
Third Schedule;
Article 173. Qualification for membership of the State Legislature. - A person
shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he-
(a) is a citizen of India, and makes and subscribes before some person authorised in that
behalf by the Election Commission an oath or affirmation according to the form set out
for the purpose in the Third Schedule;
4 Article 326. Elections to the House of the People and to the Legislative
Assemblies of States to be on the basis of adult suffrage- The elections to the
House of the People and to the Legislative Assembly of every State shall be on the basis
of adult suffrage; that is to say, every person who is a citizen of India and who is not
less than 2[eighteen years] of age on such date as may be fixed in that behalf by or under
any law made by the appropriate Legislature and is not otherwise disqualified under
this Constitution or any law made by the appropriate Legislature on the ground of nonresidence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to
be registered as a voter at any such election.
LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N.
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People and the legislative assemblies of the States shall be on the basis
of adult suffrage i.e. every person who is a citizen of India and who is
not less than 18 years of age on a date specified by law shall be entitled
to be registered as a voter at any such election, with a further stipulation
that such a right is subject to disqualifications prescribed under the
Constitution, or by or under any law made by the appropriate legislature.
Article 326 is also specific about the grounds on which a disqualification
could be prescribed by the appropriate legislature. They are non-residence,
unsoundness of mind and crime or corrupt or illegal practices. The right
to vote at an election to the Rajya Sabha and the Legislative Council of
a State are subject to certain further qualifications. So also in the case of
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
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 VicePresidency, the minimum age requirement of 35 years is prescribed under
Article 58(1)(b)7 and 66(3)(b)8.
7. Constitution also prescribes certain disqualifications for
contesting any election to any of the abovementioned bodies. 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
qualified to be chosen to fill a seat in Parliament unless he-
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and,
in the case of a seat in the House of the People, not less than twenty-five years of age;
6 Article 173. Qualification for membership of the State Legislature.- A person
shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he-
(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years
of age and, in the case of a seat in the Legislative Council, not less than thirty years of
age;
7 Article 58. Qualifications for election as President. (1) No person shall be eligible
for election as President unless he-
(b) has completed the age of thirty-five years,
8 Article 66. Election of Vice President.- (3) No person shall be eligible for election
as Vice-President unless he-
(b) has completed the age of thirty-five years;
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"Article 102. Disqualifications for membership
(1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament-
(a) if he holds any office of profit under the Government of
India or the Government of any State, other than an office
declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a
competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by
Parliament.
(2) A person shall be disqualified for being a member of either
House of Parliament if he is so disqualified under the Tenth
Schedule."
8. Article 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
9 Article 191. Disqualifications for membership. (1) A person shall be disqualified
for being chosen as, and for being, a member of the Legislative Assembly or Legislative
Council of a State-
(a) if he holds any office of profit under the Government of India or the Government of
any State specified in the First Schedule, other than an office declared by the Legislature
of the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign
State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
(2) A person shall be disqualified for being a member of the Legislative Assembly or
Legislative Council of a State if he is so disqualified under the Tenth Schedule.
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
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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 VicePresident apart from the other qualifications and disqualifications
stipulated under the Constitution.
9.