The matter of declaring the antecedents of the candidate during election has been brought before the Supreme Court in various petitions. In Union of India v. Association for Democratic Reforms & Another, (2002) 5 SCC 294, hereafter referred to as “ADR case”, the Hon’ble Apex Court 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). The Court further 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. The Court identified some of the important aspects of such information –
- candidate’s criminal antecedents (if any),
- assets and liabilities,
- educational qualifications.
The Apex 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.
As a result of above directions, the Parliament amended the Representation of People’s Act,1951 in 2002 by introducing Section 33A 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 the Court in the above mentioned judgment.
In People’s Union for Civil Liberties (PUCL) & Another v. Union of India & Another, (2003) 4 SCC 399, the Hon’ble Supreme Court held Section 33B to be beyond the legislative
competence of the Parliament. The Court recorded that Section 33A fails to ensure complete compliance with the directions issued by this Court in ADR case.
2. Lok Prahari vs. Union of India
Rule 4A, The Conduct of Elections Rules,1961 provides that the candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under Section 33(1) of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26. These particular provisions – Rule 4A and Form 26 were notified in September,2002.
The Bench consisting of J. Chelameswar and S. Abdul Nazeer dealt with Lok Prahari vs. Union of India on 16 Feb,2018.
Relief Sought –
The present writ petition sought that State be compelled to make a law authorizing the collection of data pertaining to the financial affairs of the LEGISLATORS. The step in the collection of data should be to call upon those who seek to get elected to a legislative body to
make a declaration of their assets and those of their ASSOCIATES along with the sources.
(a) 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 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. (Para 30)
(b) 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. (Para 40)
(c) 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. (Para 40)
(d) 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 are –
- making of laws which render such undue accumulation of wealth an offence;
- disqualifying LEGISLATORS who have acquired wealth through unconstitutional means, from continuing as or seeking to get re-elected as LEGISLATORS; and
- making it known to the electorate to enable them to make a choice whether such LEGISLATORS should be given a further opportunity.
Whatever be the best solution out of the above mentioned 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 their hands. (Para 34)
(e) 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. (Para 42)
(f) 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.
The establishment of such a permanent mechanism would be a necessary incident of the authority to declare a LEGISLATOR “disqualified”. (Para 46)
(g) 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 limitation
prescribed by the Constitution and statutes like the RP Act,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. (Para 49)
(h) 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 voterunder 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. (Para 50)
(i) 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. (Para 64)
(a) 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)
(b) 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. (Para 57)
(c) It is necessary to 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. (Para 59)
(d) 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. (Para 60)
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