In a landmark move that will further push the battle for ushering in more transparency in our electoral system that is plagued by secrecy and corruption, the Supreme Court has taken the great and laudable initiative of ruling explicitly in a recent case titled Lok Prahari through its General Secretary SN Shukla v Union of India and others on February 16, 2018 that not just candidates, their spouses and dependants too should reveal source of income and assets while filing nomination. The Bench of Apex Court comprising of Justice J Chelameswar and S Abdul Nazeer pronounced this landmark judgment on the public interest litigation filed by ‘Lok Prahari’ which is an NGO which fights against corruption, that sought effective measures to prevent politicians who are MPs/MLAs from amassing disproportionate assets. It is too well known how quickly politicians assets multiply many times in no time and yet they were not obliged before this landmark ruling was delivered to disclose their source of income and how they amassed so much of wealth and property so quickly.
To put it differently, the Supreme Court “allowed” the prayers in a PIL filed by Lucknow-based NGO Lok Prahari seeking steps to prevent MPs and MLAs from amassing disproportionate assets and to make it mandatory for not only candidates but their spouses and dependents also to reveal their source of income. In other words, the PIL had also sought the court’s direction to politicians to disclose their source of income in their nomination papers/affidavits before returning officers. It also wanted revelation of the assets of the candidate’s spouses and dependents.
To be sure, Justice J Chelameswar said explicitly that, “The prayers in the petition are allowed. Only those which require amendment of the law are not allowed as it is up to the Parliament to take a decision”. This has come late but certainly it is a giant step in the right direction. There can be no two opinions about it!
To put it bluntly, the Bench said categorically that, “There was need for a mechanism to continuously monitor assets and sources of income of legislators and their associates. Information regarding the sources of income of candidates and their associates would, in our opinion, certainly help the voter to make an informed choice of candidate to represent the constituency in the legislature”. What wrong has the Bench said? Why should the voter not have an informed choice of candidate whom he/she is going to vote and who would represent the constituency in the legislature?
To make matters worse, SN Shukla of Lok Prahari had contended that, “While filing nomination papers, candidates have been disclosing their assets, assets of their spouses, children and other dependents, but they were not revealing the sources of income. The petitioner had demanded inclusion of a column in the nomination form to list details of a candidates sources of income. Allowing the petitioner’s prayer, the Bench said that, “Only those which require amendment to the law are not allowed as it is up to Parliament to take a decision”.
Be it noted, the Central Board of Direct Taxes told the Supreme Court in September 2017 that as many as 98 MLAs and seven Lok Sabha MPs, whose assets witnessed manifold increase in a short span of time, were under investigation. In an affidavit on disproportionate assets of elected politicians, the CBDT had said a preliminary assessment of assets of 42 more MLAs was being examined. The petitioner had alleged a substantial increase in assets of 26 Lok Sabha MPs, 11 Rajya Sabha MPs and 257 MLAs, as reflected in election affidavits. Of the 257 MLAs, the CBDT had said that 98 MLAs were found to have substantially increased assets and were being further probed.
Truth be told, while calling for quick action against MPs and MLAs possessing disproportionate assets, the Bench had observed that the government should notify special fast-track criminal courts to try MPs and MLAs in corruption cases and the Judge should be directed to complete the trial in a time-bound manner. Making stinging observations, Justice Chelameswar had wondered aloud if the mercurial rise in the assets of politicians just within a span of five years between two successive elections, was a product of ineffective investigation or of some immunity provided to them”. Absolutely right!
As things stand, the Apex Court said that such disclosure would be a part of the fundamental right of the voter under Article 19(1)(a) as laid down in its 2002 judgment in Union of India v Association for Democratic Reforms & Another in which it stated that, “Voter speak out or expresses by casting vote”. It was also held that, “Non-disclosure of sources of income by candidates and their associates would constitute a corrupt practice falling under the heading ‘undue influence’ as defined under Section 123(2) of thee RP (Representation of the People) Act of 1951”. There can be no denying it.
Not stopping here, the Apex Court said that the candidate must also disclose his/her interest or stake in any government contract that he/she or any family member has with the government. This under no circumstances should be kept a secret. People have every right to know fully what interest or stake the candidate or any of his/her family members has with the government.
No doubt, it is secrecy and secrecy alone which ensures that stinking corruption governs our polity. Why should there be secrecy when there is nothing to hide? How can those candidates who believe in secrecy become good MPs or MLAs?
As it turned out, Justice J Chelameswar had asked the government very categorically that, “If an MLA’s or MP’s assets have seen a 10 time rise in 2019 from what he revealed in 2014 should you not conduct an inquiry into the very propriety of a person holding public office enjoying such phenomenal rise in his assets …. The moment a candidate has shown 1,000% increase in his income in the past five years, please have a mechanism to conduct an enquiry.” Absolutely right! What wrong has he said?
Still why politicians don’t want to subject themselves to any scrutiny of any kind? Why people are asked to account for all the money they have but politicians and political parties get huge unaccounted money from foreign powers and still they are not asked to explain it? Why even laws are passed quickly without proper debates as we saw recently when Finance Bill was passed quickly and politicians and political parties being exempted from any subjection for getting huge money from foreign powers? Where are we heading?
Simply put, Justice Chelameswar while demanding transparency had categorically said that, “Income under each head should be probed. All these should be inquired. The public needs an answer. The people should get to know the state of affairs. It is not enough that a legislator discloses a legitimate source of income. It is important to inquire that how did the person get in that position to earn that income”. What wrong has he said? Why can’ the legislator disclose his/her legitimate source of income if he/she has nothing to hide?
It is noteworthy that the Apex Court said that the candidate must also disclose his/her interest or stake in any government contract that he/she or any family member has with the government. The petitioner had specifically raised the question of assets of some people’s representatives increasing manifold after their election. The Bench of Apex Court observed that, “There was 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.”
Going forward, the Apex Court said the government was competent to make rules to this effect and put in place a permanent mechanism to monitor the financial affairs of legislators and their associates. It held that, “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.” Undoubtedly, a permanent institutional mechanism is what is required most urgently that can be dedicated to the task of ensuring that the financial affairs of their legislators and their associates were being conducted properly!
Moving a step further, the Bench said that the mechanism must collect data periodically and examine whether there is disproportionate increase in the assets and recommend action in appropriate cases, either to prosecute them or place it before the legislature to continue their eligibility to continue as members of the House. It said that such data should also be placed in the public domain to enable voters to make an informed choice.
It ought to be mentioned here that during the hearing of the case, the Apex Court had criticized the government for not investigating the huge increase in assets, by up to 500 percent, of politicians from what they show at the time of nomination. How can this be tolerated quietly? The Election Commission had also told the top court in January that it must be made mandatory for the candidates to disclose their sources of income along with that of their spouse and dependents at the time of filing nomination to bring transparency in the election process.
It would be imperative to mention here that the Bench of Apex Court led by Justice J Chelameswar which also had Justice S Abdul Nazeer minced no words in stating unequivocally that, “Purity of electoral process is fundamental to the survival of a healthy 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 Parliament nor the Election Commission of India paid any attention to the problem so far.” But now it is a matter of some comfort that Supreme Court has finally made a valiant effort to tackle it.
It is a matter of great solace that the prayer of the petitioner seeking a direction that non disclosure of assets and the sources of income by candidates, their dependents and associates shall amount to ‘undue influence’ for the purpose of Section 123(2) of the Act of 1988 and that the election of such a candidate can be declared null and void under Section 100(1)(b) of the Act of 1951 has also been allowed with the Bench relying on the judgment in Krishnamoorthy [(2015) 3 SCC 467]. The Bench also ordered an investigation/inquiry into the disproportionate increase in the assets of MPs/MLAs/MLCs named in the list annexed to the petition as well as the establishment of a permanent mechanism to investigate other legislators whose assets have increased by more than 100% by the next election.
It also cannot be lost on us that the Bench has granted the prayer of the petitioner to direct necessary amendments to Form 26 of Rule 4A of the Conduct of Election Rules of 1961 so as to require candidates to declare on affidavit theirs as well as their associates’ sources of income. However, the prayers for the issue of the writ of mandamus to direct amendment in the Representation of People’s Act of 1951 to provide for rejection of nomination on the ground of furnishing of incorrect information in the said Form 26, as well as amendment to Section 9A of the Act of 1951 to include contracts with any government or public company by any HUF/trust/partnership firm/private company in which a candidate or his dependents have a share or interest have not been granted in view of the settled position that a writ cannot be issued to a legislature to amend a law.” It is beyond a straw of doubt that this landmark ruling will go a long way in ensuring tremendously that our electoral system remains much more transparent with candidates being required rightly to reveal their source of income and assets along with that of spouse and their dependents while filing nomination! A landmark judgment in true sense!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
