Declaration of assets by an Election Candidate

Fundamental right of citizens to know about financial position of a Candidate.

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 We must make it clear that nothing in law prevents a vigilant citizen from collecting such data for initiating appropriate proceedings in accordance with law. 33 of the RP Act of 1951 etc.); and (ii) the sources of their income.

The information regarding the sources of income of the CANDIDATES and their ASSOCIATES, would in our opinion, 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).

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.45 See Articles 84(c), 102(1)(e), 173(c) and 191(1)(e) 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 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.

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 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 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 48 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. 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 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. 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 Government’s rule making power from making such information available.

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.

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 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.

Prayers granted by Supreme Court on 16 February 2018:

  1. 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
  2. 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.
  3. Following additional informations in form 26

    I. Whether the candidate was found guilty of a corrupt practice u/S 99 of the RP Act of 1951?

    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?

    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 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 under the RP Act of 1951?

[Source: Lok Prahri vs. Union of India, decided by Sc on 16th February 2018.]

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