IMPORTANT POINTS
Distinction between by the Act and under the Act.
Expulsion and disqualification.
No court can compel the legislature and no writ could be issued to compel the legislature to make a law.
Non-disclosure of assets and sources of income of the candidates and their associates would constitute a corrupt practice falling under heading 'undue influence'.
Rule 4A of the RULES and Form 26 appended to the RULES directed to be suitably amended requiring CANDIDATES and their ASSOCIATES to declare their sources of income.
A mechanism 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 directed.

Headnote:(a) Representation of the People Acts, 1950 and 1951 – Section 33A and B r/w Rule 4A, Conduct of Election Rules, 1961 – Disclosure of information – Only disclosure of information regarding criminal antecedents made mandatory u/s 33A – Section 33B did away with all other information as required by (2002) 5 SCC 294 – Section 33B held unconstitutional by (2003) 4 SCC 399 – However, Rule 4A requiring filing of an affidavit giving details of assets etc. – Calls for more steps for cleaning electoral process. (Para 23, 24, 25, 26, 27)
       (2002) 5 SCC 294; (2002) 5 SCC 294; (2003) 4 SCC 399 – Relied upon
       (b) Prevention of Corruption Act, 1988 – Section 2(c) r/w section 8(m) and 7(b) RP Act, 1951 – A legislature is a public servant in terms of Act, 1988 – Would be disqualified on conviction for offences under Act, 1988. (Para 35)
       (1998) 4 SCC 626 – Relied upon
       (c) Interpretation of statute – By the Act and under the Act – Distinction – Provisions expressly or impliedly provided in the Act and Rules, bye-laws made under the Act – Bye-laws are subordinate legislation under the Act. (Para 39)
       AIR 1963 SC 274; (2014) 3 SCC 222 – Relied upon
       (d) Representation of the People Act, 1951 – Section 81, 100 and 169 – Disqualification for being or continuing as legislator – Undue accretion of assets – No provision in Act – Rule can and should be made u/s 169(1) r/w Articles 102(1)(e) and 191(1)(e), Constitution of India for disqualifying a legislator even without prosecuting him for offences under PC Act – Further, no statutory provision required for stipulating the grounds on which a member could be expelled or the procedure which is required to be followed – Therefore the House can expel a member on the ground that a member resorted to some activity which does not meet the approval of the House – Such expulsion shall have effect of disqualification. (Para 40, 42, 44)
       (2007) 3 SCC 184 – Relied upon
       (d) Representation of the People Act, 1951 – Section 84, 102 and 169 – Voters’ right to information – Assets of legislator and his/her associates, and their sources – Central Government can make rules u/s 169 to compel disclosure. (Para 50, 51)
       (2006) 2 SCC 545; (1975) 3 SCC 185; (1944-45) 71 IA 241: AIR 1945 PC 156; (2013) 6 SCC 333; (1982) 2 SCC 7; (2014) 3 SCC; AIR 1964 SC 264 – Relied upon
       (e) Constitution of India – Separation of powers – No court can compel the legislature and no writ could be issued to compel the legislature to make a law. (Para 53)
       (f) Representation of the People Act, 1951 – Section 123(2) – Corrupt practice – Non-disclosure of assets and sources of income of the candidates and their associates – Would constitute a corrupt practice falling under heading 'undue influence'. (Para 64)
       (2015) 3 SCC 467 – Relied upon
       Facts of the case:
       This is a petition seeking electoral reforms.
       Finding of the Court:
       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.
       Result: Petition allowed.

JUDGMENT

Chelameswar, J.

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 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 enacted[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.], 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 324 [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 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 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 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 Commiss

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2018 Supreme(SC) 157

SUPREME COURT OF INDIAJ. Chelameswar, S. Abdul Nazeer, JJ.Lok Prahari, through Its General Secretary S.N. Shukla – PetitionerVersusUnion of India & Others – Respondents Writ Petition (C) No. 784 of 2015Decided On : 16-02-2018

Cases Referred (14)

SUPREME COURT OF INDIA
J. Chelameswar, S. Abdul Nazeer, JJ.
Lok Prahari, through Its General Secretary S.N. Shukla – Petitioner
Versus
Union of India & Others – Respondents
Writ Petition (C) No. 784 of 2015
Decided On : 16-02-2018