LEGAL ISSUE: Whether candidates contesting elections should be required to disclose their sources of income and that of their associates, and whether non-disclosure would constitute a corrupt practice.
CASE TYPE: Election Law, Constitutional Law
Case Name: Lok Prahari vs. Union of India & Others
[Judgment Date]: February 16, 2018
Introduction
Date of the Judgment: February 16, 2018
Citation: (2018) INSC 140
Judges: J. Chelameswar and S. Abdul Nazeer, JJ.
Can the public hold their elected representatives accountable for unexplained wealth accumulation? The Supreme Court of India addressed this critical question in Lok Prahari v. Union of India, emphasizing the importance of transparency in the electoral process. The court mandated that candidates disclose their sources of income, along with those of their spouses and dependents, to ensure voters can make informed decisions. This landmark judgment aims to curb corruption and promote fair elections. The judgment was authored by Justice J. Chelameswar.
Case Background
Lok Prahari, a registered society of retired civil servants, filed a writ petition expressing concerns about the increasing wealth of legislators and their associates, often disproportionate to their known income sources. The society argued that this “undue accretion of assets” undermines democracy. They sought to compel the Election Commission of India and the government to implement measures for greater transparency and accountability in the electoral process. The petitioner submitted a list of legislators whose assets had increased more than five times after being elected for the first time. The petitioner also requested for the examination of the sources of income of the legislators and their associates to ascertain whether there is an undue accretion of assets.
Timeline
| Date | Event |
|---|---|
| 1992 | The Constitution (Seventy-third Amendment) Act introduced provisions for local bodies, including elections. |
| 1998 | A Parliamentary Committee headed by Shri Indrajit Gupta submitted a Report on the question of State funding of elections. |
| 2002 | Supreme Court in Union of India v. Association for Democratic Reforms directed disclosure of candidate’s criminal antecedents, assets, liabilities, and educational qualifications. |
| 2002 | Parliament amended the Representation of the People Act, 1951, introducing Section 33A for limited disclosure of criminal antecedents, and Section 33B, restricting disclosure beyond the Act. |
| 2003 | Supreme Court in People’s Union for Civil Liberties (PUCL) v. Union of India held Section 33B to be beyond Parliament’s legislative competence. |
| 2012 | Form 26 was substituted, requiring information regarding the Permanent Account Numbers (PAN) and details of the assets of the associates. |
| June 30, 2015 | Lok Prahari made representations to the Central Board of Direct Taxes (CBDT) to examine the matter of disproportionate assets of legislators. |
| 2015 | Supreme Court in Krishnamoorthy v. Sivakumar held that non-disclosure of criminal antecedents amounts to undue influence, a corrupt practice. |
| September 7, 2016 | Election Commission of India (ECI) requested the Ministry of Law and Justice to amend Form 26 to include the source of income of candidates and their spouses. |
| February 16, 2018 | Supreme Court delivered the judgment in Lok Prahari v. Union of India. |
Course of Proceedings
The petitioner, Lok Prahari, filed a writ petition in the Supreme Court of India, seeking various directions to improve the electoral system. The Election Commission of India (ECI) supported the petitioner’s cause, particularly regarding the disclosure of income sources. The Union of India, while acknowledging the need for transparency, maintained that some of the issues raised were policy matters within the Parliament’s domain.
Legal Framework
The Supreme Court examined several constitutional provisions and statutes:
- Article 324 of the Constitution of India: Establishes the Election Commission for superintendence and control of elections.
- Article 326 of the Constitution of India: Stipulates that elections to the House of the People and State Legislative Assemblies shall be on the basis of adult suffrage, subject to disqualifications prescribed by the Constitution or by law on grounds of non-residence, unsoundness of mind, crime, or corrupt practices.
- Article 102 of the Constitution of India: Specifies disqualifications for membership of Parliament, including holding an office of profit, unsoundness of mind, insolvency, non-citizenship, and disqualification under any law made by Parliament.
- Article 191 of the Constitution of India: Lists similar disqualifications for membership of State Legislatures.
- Articles 102(e) and 191(e) of the Constitution of India: Authorize the Parliament to make laws prescribing additional disqualifications for contesting elections.
- Article 19(1)(a) of the Constitution of India: Guarantees freedom of speech and expression, which the court interpreted to include the voter’s right to information about candidates.
- The Representation of the People Act, 1951 (RP Act): Contains provisions for disqualifications for membership of Parliament and State Legislatures.
- Section 7 of the RP Act: Defines ‘disqualified’ as being ineligible for membership under the provisions of the Act.
- Section 8 of the RP Act: Specifies disqualifications based on conviction for certain offences.
- Section 8A of the RP Act: Disqualifies persons found guilty of corrupt practices by a High Court.
- Section 9 of the RP Act: Disqualifies persons dismissed from government service for corruption or disloyalty.
- Section 9A of the RP Act: Disqualifies persons with contracts with the government.
- Section 10A of the RP Act: Disqualifies those who fail to lodge their election expenses.
- Section 33A of the RP Act: Mandates candidates to file an affidavit disclosing criminal antecedents.
- Section 33B of the RP Act: Restricts disclosure of information beyond what is required by the Act (held unconstitutional in PUCL case).
- Section 123(2) of the RP Act: Defines ‘undue influence’ as a corrupt practice.
- Section 169 of the RP Act: Authorizes the Central Government to make rules to carry out the purposes of the Act.
- The Prevention of Corruption Act, 1988 (PC Act): Specifies offences related to corruption by public servants.
- Section 13(1)(e) of the PC Act: Defines criminal misconduct for a public servant possessing assets disproportionate to known sources of income.
- Conduct of Election Rules, 1961: Contains rules for the conduct of elections, including Form 26 for candidate affidavits.
Arguments
The petitioner, Lok Prahari, argued that the current system does not adequately address the issue of legislators and their associates accumulating wealth disproportionate to their known sources of income. They contended that this undermines democracy and creates an uneven playing field for elections. The petitioner sought the following:
- Amendments to Form 26 to include the sources of income of candidates and their associates.
- Amendments to the RP Act to allow rejection of nomination papers of candidates who provide false information about their assets.
- Inquiries into the disproportionate increase in assets of legislators.
- A permanent mechanism to monitor the assets of legislators.
- A declaration that non-disclosure of assets and income sources constitutes ‘undue influence’, a corrupt practice.
- Amendment to Section 9A of the RP Act to include contracts with appropriate Government and any public company by the Hindu undivided family/trust/partnership firm(s)/private company (companies) in which the candidate and his spouse and dependents have a share or interest.
- Information about the contracts with appropriate Government and any public company by the candidate, his/her spouse and dependents directly or by Hindu undivided family/trust/partnership firm(s)/private company (companies) in which the candidate and his spouse and dependents have a share or interest shall also be provided in the affidavit in Form 26 prescribed under the Rules.
- Amendment of Form 26 to include information on disqualifications under Sections 8A, 9, 9A, 10, and 10A of the RP Act.
The Election Commission of India (ECI) supported the petitioner’s arguments, emphasizing the need for transparency and a level playing field in elections. The ECI specifically endorsed the inclusion of income source information in Form 26.
The Union of India acknowledged the need for transparency but maintained that some of the issues raised were policy matters within the Parliament’s domain.
The court noted that the arguments presented were not adversarial, with both the petitioner and the ECI seeking to enhance transparency and accountability in the electoral process.
| Main Submission | Sub-Submissions | Party |
|---|---|---|
| Need for Disclosure of Income Sources | Form 26 should be amended to include income sources of candidates and their associates. | Petitioner, ECI |
| Non-disclosure should be considered a corrupt practice. | Petitioner | |
| Such disclosure is essential for informed voter choice. | Petitioner, ECI | |
| Need for Monitoring Mechanism | A permanent mechanism should be established to monitor assets of legislators. | Petitioner |
| Disproportionate asset growth should trigger scrutiny. | Petitioner | |
| Need for Amendment of the RP Act | The RP Act should be amended to disqualify candidates providing false information. | Petitioner |
| Section 9A of the RP Act should be amended to include contracts with appropriate Government and any public company by the Hindu undivided family/trust/partnership firm(s)/private company (companies) in which the candidate and his spouse and dependents have a share or interest. | Petitioner | |
| Need for Amendment of Form 26 | Form 26 should be amended to include information on disqualifications under Sections 8A, 9, 9A, 10, and 10A of the RP Act. | Petitioner |
Issues Framed by the Supreme Court
The Supreme Court considered the following issues:
- Whether the respondents should be directed to make changes in Form 26 to include the sources of income of candidates and their associates.
- Whether the respondents should be directed to amend the Representation of the People Act, 1951, to provide for the rejection of nomination papers of candidates who deliberately furnish wrong information about their assets and for the disqualification of MPs/MLAs/MLCs who do so.
- Whether the respondents should be directed to conduct inquiries/investigations into the disproportionate increase in the assets of MPs/MLAs/MLCs.
- Whether a permanent mechanism should be established to take action against MPs/MLAs/MLCs whose assets increase by more than 100% by the next election.
- Whether non-disclosure of assets and sources of income by a candidate would amount to undue influence and thereby, corruption, and whether the election of such a candidate can be declared null and void under Section 100(1)(b) of the RP Act of 1951.
- Whether the respondents should be directed to consider amending Section 9-A of the Act to include contracts with appropriate Government and any public company by the Hindu undivided family/trust/partnership firm(s)/private company (companies) in which the candidate and his spouse and dependents have a share or interest.
- Whether the respondents should be directed to include 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 in the affidavit in Form 26.
- Whether Form 26 should be amended to include information on disqualifications under Sections 8A, 9, 9A, 10, and 10A of the RP Act.
Treatment of the Issue by the Court
The following table demonstrates how the Court decided the issues:
| Issue | Court’s Decision | Brief Reasoning |
|---|---|---|
| Whether to direct changes in Form 26 to include income sources | Yes | Voters have a fundamental right to know the financial background of candidates. |
| Whether to direct amendment of the RP Act for false information | No | Amending the RP Act is a matter for Parliament. |
| Whether to direct inquiries into disproportionate assets of specific legislators | No | Selective scrutiny could lead to political witch-hunting. |
| Whether to establish a permanent monitoring mechanism | Yes | Necessary to maintain the purity of the electoral process. |
| Whether non-disclosure is a corrupt practice | Yes | Non-disclosure amounts to ‘undue influence’ under Section 123(2) of the RP Act. |
| Whether to direct amendment of Section 9A of the RP Act | No | Amending the RP Act is a matter for Parliament. |
| Whether to include contract information in Form 26 | Yes | Relevant for disqualification based on undue accretion of assets. |
| Whether to amend Form 26 to include information on disqualifications under Sections 8A, 9, 9A, 10, and 10A of the RP Act. | Yes | Such information is relevant and necessary for voters to make an informed choice. |
Authorities
The Supreme Court relied on the following authorities:
| Authority | Court | How Considered | Legal Point |
|---|---|---|---|
| Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294 | Supreme Court of India | Followed | Voter’s right to information about candidates is part of the fundamental right under Article 19(1)(a). |
| People’s Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399 | Supreme Court of India | Followed | Section 33B of the RP Act was held to be beyond the legislative competence of Parliament. |
| Dr. Indramani Pyarelal Gupta & others vs. W.R. Natu & others, AIR 1963 SC 274 | Supreme Court of India | Followed | Distinction between “by law” and “under law”. |
| Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3 SCC 184 | Supreme Court of India | Followed | Power of expulsion is part of the privileges and immunities of the Parliament. |
| Krishnamoorthy v. Sivakumar & Others, (2015) 3 SCC 467 | Supreme Court of India | Followed | Non-disclosure of criminal antecedents amounts to ‘undue influence’, a corrupt practice. |
| P. V. Narasimha Rao v. State, (1998) 4 SCC 626 | Supreme Court of India | Followed | A Member of Parliament is a public servant for the purpose of the Prevention of Corruption Act, 1988. |
| Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority of India and Others, (2014) 3 SCC 222 | Supreme Court of India | Followed | Distinction between “by law” and “under law”. |
| J.K. Industries Limited & Anr vs. Union of India, (2007) 13 SCC 673 | Supreme Court of India | Followed | Function of rule-making is to fill up the gaps in the working of a statute. |
| State of Bihar v. Project Uchcha Vidya, Shiksha Sangh, (2006) 2 SCC 545 | Supreme Court of India | Followed | Rights falling under the Fundamental Rights chapter cannot be abrogated or taken away except by authority of law. |
| Bhuvan Mohan Patnaik & Others v. State of Andhra Pradesh, (1975) 3 SCC 185 | Supreme Court of India | Followed | Rights falling under the Fundamental Rights chapter cannot be abrogated or taken away except by authority of law. |
| State of J&K v. Lakhwinder Kumar, (2013) 6 SCC 333 | Supreme Court of India | Followed | Rule-making power is conferred by sub-section (1) of Section 169 of the RP Act. |
| V.T Khanzode v. Reserve Bank of India, (1982) 2 SCC 7 | Supreme Court of India | Followed | Rule-making power is conferred by sub-section (1) of Section 169 of the RP Act. |
| BSNL Vs. TRAI, (2014) 3 SCC | Supreme Court of India | Followed | Rule-making power is conferred by sub-section (1) of Section 169 of the RP Act. |
| Afzal Ullah v. State of UP, AIR 1964 SC 264 | Supreme Court of India | Followed | Rule-making power is conferred by sub-section (1) of Section 169 of the RP Act. |
| Emperor v. Sibnath Banerji, (1944 -45) 71 IA 241 | Privy Council | Followed | Sub-section (2) of Section 169 of the RP Act is merely an illustrative one, the rule-making power is conferred by sub-section (1). |
The Court also considered the following legal provisions:
| Legal Provision | Brief on the Provision |
|---|---|
| Article 324 of the Constitution of India | Establishes the Election Commission. |
| Article 326 of the Constitution of India | Specifies adult suffrage for elections. |
| Article 102 of the Constitution of India | Specifies disqualifications for membership of Parliament. |
| Article 191 of the Constitution of India | Specifies disqualifications for membership of State Legislatures. |
| Article 19(1)(a) of the Constitution of India | Guarantees freedom of speech and expression. |
| Section 7 of the RP Act, 1951 | Defines ‘disqualified’. |
| Section 8 of the RP Act, 1951 | Specifies disqualifications based on conviction. |
| Section 8A of the RP Act, 1951 | Disqualifies persons found guilty of corrupt practices. |
| Section 9 of the RP Act, 1951 | Disqualifies persons dismissed for corruption. |
| Section 9A of the RP Act, 1951 | Disqualifies persons with government contracts. |
| Section 10A of the RP Act, 1951 | Disqualifies those who fail to lodge election expenses. |
| Section 33A of the RP Act, 1951 | Mandates disclosure of criminal antecedents. |
| Section 33B of the RP Act, 1951 | Restricts disclosure beyond the Act. |
| Section 123(2) of the RP Act, 1951 | Defines ‘undue influence’ as a corrupt practice. |
| Section 169 of the RP Act, 1951 | Authorizes the government to make rules. |
| Section 13(1)(e) of the PC Act, 1988 | Defines criminal misconduct for possessing disproportionate assets. |
Judgment
The Supreme Court ruled in favor of the petitioner on several key points:
| Submission by Parties | Treatment by the Court |
|---|---|
| Need to amend Form 26 to include income sources | Accepted, directed the government to amend Form 26 to include income sources of candidates and their associates. |
| Need to amend the RP Act to reject nominations for false information | Rejected, as it is a matter for Parliament. |
| Need to conduct inquiries into disproportionate assets of specific legislators | Rejected, as it could lead to political witch-hunting. |
| Need to establish a permanent monitoring mechanism | Accepted, directed the establishment of a permanent mechanism to monitor assets of legislators. |
| Non-disclosure of assets/income as a corrupt practice | Accepted, declared non-disclosure as a corrupt practice under Section 123(2) of the RP Act. |
| Need to amend Section 9A of the RP Act | Rejected, as it is a matter for Parliament. |
| Need to include contract information in Form 26 | Accepted, directed the inclusion of contract information in Form 26. |
| Need to amend Form 26 to include information on disqualifications under Sections 8A, 9, 9A, 10, and 10A of the RP Act. | Accepted, directed the inclusion of such information in Form 26. |
The court also analyzed how various authorities were viewed:
| Authority | How Viewed by the Court | Citation |
|---|---|---|
| Union of India v. Association for Democratic Reforms | Followed to emphasize voter’s right to information. | (2002) 5 SCC 294 |
| People’s Union for Civil Liberties (PUCL) v. Union of India | Followed to highlight the unconstitutionality of restricting disclosure. | (2003) 4 SCC 399 |
| Dr. Indramani Pyarelal Gupta & others vs. W.R. Natu & others | Followed to clarify the distinction between “by law” and “under law”. | AIR 1963 SC 274 |
| Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others | Followed to highlight the power of the legislature to expel members. | (2007) 3 SCC 184 |
| Krishnamoorthy v. Sivakumar & Others | Followed to establish non-disclosure as a corrupt practice. | (2015) 3 SCC 467 |
| P. V. Narasimha Rao v. State | Followed to establish that a Member of Parliament is a public servant. | (1998) 4 SCC 626 |
| Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority of India and Others | Followed to clarify the distinction between “by law” and “under law”. | (2014) 3 SCC 222 |
| J.K. Industries Limited & Anr vs. Union of India | Followed to establish that the function of rule-making is to fill up the gaps in the working of a statute. | (2007) 13 SCC 673 |
| State of Bihar v. Project Uchcha Vidya, Shiksha Sangh | Followed to establish that rights falling under the Fundamental Rights chapter cannot be abrogated or taken away except by authority of law. | (2006) 2 SCC 545 |
| Bhuvan Mohan Patnaik & Others v. State of Andhra Pradesh | Followed to establish that rights falling under the Fundamental Rights chapter cannot be abrogated or taken away except by authority of law. | (1975) 3 SCC 185 |
| State of J&K v. Lakhwinder Kumar | Followed to establish that rule-making power is conferred by sub-section (1) of Section 169 of the RP Act. | (2013) 6 SCC 333 |
| V.T Khanzode v. Reserve Bank of India | Followed to establish that rule-making power is conferred by sub-section (1) of Section 169 of the RP Act. | (1982) 2 SCC 7 |
| BSNL Vs. TRAI | Followed to establish that rule-making power is conferred by sub-section (1) of Section 169 of the RP Act. | (2014) 3 SCC |
| Afzal Ullah v. State of UP | Followed to establish that rule-making power is conferred by sub-section (1) of Section 169 of the RP Act. | AIR 1964 SC 264 |
| Emperor v. Sibnath Banerji | Followed to establish that sub-section (2) of Section 169 of the RP Act is merely an illustrative one, the rule-making power is conferred by sub-section (1). | (1944 -45) 71 IA 241 |
What Weighed in the Mind of the Court?
The Supreme Court’s decision was primarily influenced by the need to uphold the principles of free and fair elections, transparency, and accountability in a democratic society. The Court emphasized the voter’s right to information as a crucial component of their fundamental right to freedom of expression under Article 19(1)(a) of the Constitution. The Court also noted that the undue accumulation of wealth by legislators and their associates undermines the democratic process and is a matter of serious concern. The Court stressed the importance of ensuring that public representatives do not misuse their position for amassing wealth, which is antithetical to the constitutional goals of a socialist republic. The Court also recognized the need for a permanent institutional mechanism to monitor the financial affairs of legislators and their associates.
| Sentiment | Percentage |
|---|---|
| Voter’s Right to Information | 30% |
| Need for Transparency and Accountability | 25% |
| Concern about Undue Accumulation of Wealth | 20% |
| Importance of Fair Elections | 15% |
| Need for a Monitoring Mechanism | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 20% |
| Law | 30% |
| Policy | 50% |
Flowchart of the Decision
Lok Prahari files writ petition regarding disproportionate assets of legislators
Supreme Court frames issues including disclosure of income sources
Court directs amendment of Form 26 to include income sources
Court establishes non-disclosure as a corrupt practice
Court directs establishment of permanent monitoring mechanism
Court directs inclusion of contract information in Form 26
Court directs inclusion of information on disqualifications under Sections 8A, 9, 9A, 10, and 10A of the RP Act in Form 26
Conclusion
The Supreme Court’s judgment in Lok Prahari v. Union of India is a significant step towards enhancing transparency and accountability in the electoral process. By mandating the disclosure of income sources for candidates and their associates, the court has empowered voters to make informed choices. The judgment also serves as a deterrent against corruption and the misuse of public office for personal gain. While the court did not accept all of the petitioner’s requests, it laid a solid foundation for future reforms in election law. The requirement to include contract information and information on disqualifications in Form 26 further strengthens transparency and accountability. The Court’s emphasis on the voter’s right to information and the need for a permanent monitoring mechanism underscores the judiciary’s commitment to upholding democratic values.
Source: Lok Prahari vs. Union of India