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Reportable
LOK PRAHARI,
THROUGH ITS GENERAL SECRETARY S.N. SHUKLA ... Petitioner
Versus
JUDGMENT
Chelameswar, J.
1
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.
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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 Commission, make
available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the
discharge of the functions conferred on the Election Commission by clause (1).
3
Article 58. Qualifications for election as President.- (1) No person shall be eligible for election as
President unless he-
(a) is a citizen of India,
(b) has completed the age of thirty five years, and
(c) is qualified for election as a member of the House of the People
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(2) A person shall not be eligible for election as President if he holds any office of profit under the
or the Government of any State or under any local or other authority subject to the control of any of the said
Governments.
Explanation For the purposes of this article, a person shall not be deemed to hold any office of profit
by reason only that he is the President or Vice President of the Union or the Governor of any State or is a
Minister either for the Union or for any State
Article 84. Qualification for membership of Parliament.- A person shall not be qualified to be chosen to
fill a seat in Parliament unless he— (a) is a citizen of India, and makes and subscribes before some person
authorised in that behalf by the Election Commission an oath or affirmation according to the form set out
for the purpose in the Third Schedule;
Article 173. Qualification for membership of the State Legislature. - A person shall not be qualified to
be chosen to fill a seat in the Legislature of a State unless he— (a) is a citizen of India, and makes and
subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation
according to the form set out for the purpose in the Third Schedule;
4
Article 326. Elections to the House of the People and to the Legislative Assemblies of States to be on
the basis of adult suffrage- The elections to the House of the People and to the Legislative Assembly of
every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and
who is not less than 2[eighteen years] of age on such date as may be fixed in that behalf by or under any
law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any
law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or
corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.
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President.
(Lok Sabha) must be not less than 25 years of age and in the
5
Article 84. Qualification for membership of Parliament- A person shall not be qualified to be chosen
to fill a seat in Parliament unless he—
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat
in the House of the People, not less than twenty-five years of age;
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Article 173. Qualification for membership of the State Legislature.- A person shall not be qualified to
be chosen to fill a seat in the Legislature of a State unless he—
(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and, in the
case of a seat in the Legislative Council, not less than thirty years of age;
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Article 58. Qualifications for election as President. (1) No person shall be eligible for election as
President unless he—
(b) has completed the age of thirty-five years,
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Article 66. Election of Vice President.- (3) No person shall be eligible for election as Vice-President
unless he—
(b) has completed the age of thirty-five years;
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(1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament-
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Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,
and for being, a member of the Legislative Assembly or Legislative Council of a State—
(a) if he holds any office of profit under the Government of India or the Government of any State specified
in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify
its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under
any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of
a State if he is so disqualified under the Tenth Schedule.
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Constitution.
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Article 58. Qualifications for election as President. (1) No person shall be eligible for election as
President unless he—
(c) is qualified for election as a member of the House of the People.
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Article 66. Election of Vice President. (3) No person shall be eligible for election as Vice-President
unless he-
(c) is qualified for election as a member of the Council of States
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purpose of the present case to take note of the fact that RP Act
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Entry 72. Elections to Parliament, to the Legislatures of States and to the offices of President and Vice-
President; the Election Commission.
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Entry 37. Elections to the Legislature of the State subject to the provisions of any law made by
Parliament
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disqualified.
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Section 7(a). “appropriate Government” means in relation to any disqualification for being chosen as or
for being a member of either House of Parliament, the Central Government, and in relation to any
disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative
Council of a State, the State Government;
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corrupt practice.
chaos.
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Section 100. Grounds for declaring election to be void.— (1) Subject to the provisions of sub-section
(2) if the High Court is of opinion—
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen
to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of
1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any
other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially
affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other
than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is
void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or
orders made under this Act, the High Court shall declare the election of the returned candidate to be
void, If in the opinion of the High Court, a returned candidate has been guilty by an agent other
than his election agent, of any corrupt practice but the High Court is satisfied—
(a) that no such corrupt practice was committed at the election by the candidate or his election
agent, and every such corrupt practice was committed contrary to the orders, and without the
consent, of the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable means for preventing the
commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the
candidate or any of his agents, then the High Court may decide that the election of the
returned candidate is not void.”
18
Section 100(1)(b) of the RP Act of 1951
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therein did occur and (ii) such an event materially affected the
candidate.
that have crept into its working. Various bodies such as the
19
See: Union of India v. Association for Democratic Reforms and Another, (2002) 5
SCC 294
Para 2 … It is pointed out that the Law Commission has made recommendation for debarring a
candidate from contesting an election if charges have been framed against him by a court in respect of
certain offences and necessity for a candidate seeking to contest election to furnish details regarding
criminal cases, if any, pending against him. It has also suggested that true and correct statement of assets
owned by the candidate, his/her spouse and dependent relations should also be disclosed. The petitioner
has also referred para 6.2 of the report of the Vohra Committee of the Government of India, Ministry of
Home Affairs, which reads as follows:
“6.2. Like the Director CBI, DIB has also stated that there has been a rapid spread and growth of
criminal gangs, armed senas, drug mafias, smuggling gangs, drug peddlers and economic lobbies in the
country which have, over the years, developed an extensive network of contacts with the
bureaucrats/government functionaries at the local levels, politicians, media persons and strategically
located individuals in the non-State sector. Some of these syndicates also have international linkages,
including the foreign intelligence agencies. In this context DIB has given the following examples:
(i) In certain States like Bihar, Haryana and U.P., these gangs enjoy the patronage of local-
level politicians, cutting across party lines and the protection of governmental functionaries. Some
political leaders become the leaders of these gangs, armed senas and over the years get themselves
elected to local bodies, State Assemblies and the national Parliament. Resultantly, such elements
have acquired considerable political clout seriously jeopardising the smooth functioning of the
administration and the safety of life and property of the common man causing a sense of despair
and alienation among the people.
(ii) The big smuggling syndicates having international linkages have spread into and infected
the various economic and financial activities, including hawala transactions, circulation of black
money and operations of a vicious parallel economy causing serious damage to the economic fibre
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held that for the effective exercise of his fundamental right, the
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information.
convenience as ASSOCIATES):
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20
Judgment is dated 02.05.2002 and the Amendment introducing Section 33A is dated 28.12.2002 (By The
Representation of the People (Third Amendment) Act, 1951 (Act No.72 of 2002)
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be given.
21
“78. … The Amended Act does not wholly cover the directions issued by this Court.
On the contrary, it provides that a candidate would not be bound to furnish certain
information as directed by this Court.”
22
Section 33A. Right to information.—
(2) The candidate of his proposer, as the case may be, shall, at the time of delivering to the returning officer
the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the
candidate in a prescribed form very fine the information specified in sub-section (1).
23
Rule 4A. Form of affidavit to be filed at the time of delivering nomination paper.—The candidate or
his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination
paper under subsection (1) of section 33 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.
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they got elected for the first time to the concerned legislative
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This Court in ADR case took note of the fact that in certain
petition.
24
United States of America enacted a law known as Ethics in Government Act, 1978 which was further
amended in 1989. “Ethics Manual for Members, Employees and Officers of the US House of
Representatives” indicates that such disclosure provisions were enacted to “monitor and deter possible
conflicts of interests”.
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declare that the State shall direct its policy towards securing
income paves way for the rule of mafia substituting the rule of
law. In this regard, both the petitioner and the 2nd respondent
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“behind every great fortune lies a great crime” - BALZAC
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laws.
God!
under the PC Act or any other law but are inconsistent with
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Section 7 of the PC Act.
“Public servant taking gratification other than legal remuneration in respect of an official act.—
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to
obtain from any person, for himself or for any other person, any gratification whatever, other than legal
remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for
rendering or attempting to render any service or disservice to any person, with the Central Government or
any State Government or Parliament or the Legislature of any State or with any local authority,
corporation or Government company referred to in clause (c) of section 2, or with any public servant,
whether named or otherwise, shall be punishable with imprisonment which shall be not less than three
years but which may extend to seven years and shall also be liable to fine.”
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Section 7. Disqualification for membership of Parliament or of a State Legislature – A person shall
be disqualified for being chosen as, and for being, a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of the state –
(a) xxxxx xxxxxx xxxxxx xxxxxx
(b) xxxxx xxxxxx xxxxxx xxxxxx
(c) xxxxx xxxxxx xxxxxx xxxxxx
(d) If, whether, by himself or by any person or body of person in trust for him or for his benefit or on
his account, he has any share or interest in a contract for the supply of goods to, or for the
execution of any works or the performance of any services undertaken by the appropriate
Government.
(e) xxxxx xxxxxx xxxxxx xxxxxx
(f) xxxxx xxxxxx xxxxxx xxxxxx
29
Section 9A. Disqualification for Government contracts etc.- A person shall be disqualified if, and for
so long as, there subsists a contract entered into by him in the course of his trade or business with the
appropriate government for the supply of goods to, or for the execution of any works, undertaken by that
government.
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LEGISLATOR.
POSSIBLE SOLUTIONS:
LEGISLATORS; and
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OFFENCE:
30
13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of
criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself
or for any other person any gratification other than legal remuneration as a motive or reward such as is
mentioned in section 7; or
xxxxxx xxxxx xxxxxx xxxxx xxxxxx xxxxxx
or (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office,
been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or
property disproportionate to his known sources of income.
Explanation.—For the purposes of this section, “known sources of income” means income received from
any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules
or orders for the time being applicable to a public servant.
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Section 13(2) - Any public servant who commits criminal misconduct shall be punishable with
imprisonment for a term which shall be not less than four years but which may extend to ten years and shall
also be liable to fine.
32
P. V. Narasimha Rao v. State, (1998) 4 SCC 626
“Para 85. Having considered the submissions of the learned counsel on the meaning of the expression
“public servant” contained in Section 2(c) of the 1988 Act, we are of the view that a Member of
Parliament is a public servant for the purpose of the 1988 Act.”
33
“Section 8. Disqualification on conviction for certain offences.—(1) A person convicted of an offence
punishable under-
(m) the Prevention of Corruption Act, 1988 (49 of 1988);
shall be disqualified, where the convicted person is sentenced to-
(i) only fine, for a period of six years from the date of such conviction;
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as a LEGISLATOR.
DISQUALIFICATION:
36. We now deal with the question of disqualifying
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a
further period of six years since his release.”
34
But the difficulty lies in initiating the prosecution and obtaining proof of the fact that a LEGISLATOR
either by himself or through his ASSOCIATES acquired assets (during the incumbency as LEGISLATOR)
which are disproportionate to his known sources of the income. Initiation of investigation and prosecution
for establishing the occurrence of the offences under the PC Act and proof of the guilt are riddled with
procedural constraints and political obstacles and dis-prudential difficulties.
It becomes a more complicated and difficult task when the accused himself happens to be a law
maker/LEGISLATOR. The history of this country during the last 70 years speaks eloquently how
unsuccessful the State has been in bringing to book the LEGISLATORS with questionable financial
integrity. The reasons are many. Low level efficiency of the State machinery (both investigating and
prosecuting agencies) and the legal system, lack of political will are some of the known reasons. Criminal
jurisprudence gives a great deal of benefit of doubt to an accused person and expects the State to prove the
guilt of accused beyond all reasonable doubt.
35
Section 7(b) of the RP Act of 1951:
"disqualified" means disqualified for being chosen as, and for being, a member of either
House of Parliament or of the Legislative Assembly or Legislative Council of a State.”
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Article 102. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament—
xxx xxx xxx xxx
(e) if he is so disqualified by or under any law made by Parliament.
Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as, and for
being, a member of the Legislative Assembly or Legislative Council of a State—
xxx xxx xxx xxx
(e) if he is so disqualified by or under any law made by Parliament.
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others vs. W.R. Natu & others, AIR 1963 SC 274 37 and a
make rules for carrying out the purposes of the Act. If the
37
See also Bharat Sanchar Nigam Limited Vs. Telecom Regulatory Authority of India and Others, (2014) 3 SCC
222, para 90.
38
Section 169. Power to make rules.—(1) The Central Government may, after consulting the Election
Commission, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
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means, which are inconsistent with the letter and spirit of the
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that a given set of facts may in law give rise to both civil and
39
The Central Government may, after consulting the Election Commission, by notification in the Official
Gazette, make rules for carrying out the purposes of this Act.
40
Para 133 of J.K. Industries Limited &Anr vs. Union of India., (2007) 13 SCC 673
It is well settled that, what is permitted by the concept of “delegation” is delegation of ancillary or
subordinate legislative functions or what is fictionally called as “power to full up the details the details”.
The judgments of this Court have laid down that the legislature may, after laying down the legislative
policy, confer discretion on administrative or executive agency like the Central Government to work out
details within the framework of the legislative policy laid down in the plenary enactment.
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law existed. Yet it was held by this Court 42 that such power
41
See paragraph 43 Per. Sabharwal, CJI.
42
See paragraph 318, Per. Sabharwal, CJI.
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the grounds specified under Articles 102 and 191. This Court
43
Id. at paragraphs 144 and 145
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LEGISLATOR “disqualified”.
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44
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.
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income.
45
See Articles 84(c), 102(1)(e), 173(c) and 191(1)(e)
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does not require the consent of all the voters except the
Article 84. Qualification for membership of Parliament.— A person shall not be qualified to be chosen
to fill a seat in Parliament unless he—
xxxxx xxxxx xxxxx
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law
made by Parliament
Article 102. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,
and for being, a member of either House of Parliament—
xxxxx xxxxx xxxxx
(e) if he is so disqualified by or under any law made by Parliament.
Article 173. Qualification for membership of the State Legislature.— A person shall not be qualified to
be chosen to fill a seat in the Legislature of a State unless he—
xxxxx xxxxx xxxxx
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law
made by Parliament
Article 191. Disqualifications for membership. (1) A person shall be disqualified for being chosen as,
and for being, a member of the Legislative Assembly or Legislative Council of a State—
xxxxx xxxxx xxxxx
(e) if he is so disqualified by or under any law made by Parliament.
46
Section 33. Presentation of nomination paper and requirements for a valid nomination. —(1) On or
before the date appointed under clause (a) of section 30 each CANDIDATE shall, either in person or by his
proposer, between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon deliver to
the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination
paper completed in the prescribed form and signed by the CANDIDATE and by an elector of the
constituency as proposer :
Provided that a CANDIDATE not set up by a recognised political party, shall not be deemed to be duly
nominated for election form a constituency unless the nomination paper is subscribed by ten proposers
being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a
public holiday:
Provided also that in the case of a local authorities' constituency, graduates' constituency or teachers'
constituency, the reference to "an elector of the constituency as proposer" shall be construed as a reference
to ten per cent. of the electors of the constituency or ten such electors, whichever is less, as proposers.
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it was thought fit that such rights should be curtailed, the text
47
State of Bihar v. Project Uchcha Vidya, Shiksha Sangh, (2006) 2 SCC 545, 574 paragraph 69; Bhuvan
Mohan Patnaik & Others v. State of Andhra Pradesh, (1975) 3 SCC 185, 189 paragraph 14
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48
Supra Note 35
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49
The authority for this proposition has its genesis in Emperor v. Sibnath Banerji, (1944-45) 71 IA 241:
AIR 1945 PC 156: “…. In the opinion of their Lordships, the function of sub-section (2) is merely an
illustrative one; the rule-making power is conferred by sub-section (1), and ‘the rules’ which are referred to
in the opening sentence of sub-section (2) are the rules which are authorized by, and made under, sub-
section (1), as, indeed, is expressly stated by the words ‘without prejudice to the generality of the
powers conferred by sub-section (1)”; This statement of law was reiterated in State of J&K v.
Lakhwinder Kumar, (2013) 6 SCC 333 at 343 para 23; V.T Khanzode v. Reserve Bank of India, (1982)
2 SCC 7 at page 14 para. 15; BSNL Vs. TRAI (2014) 3 SCC para. 90; Afzal Ullah v. State of UP, AIR
1964 SC 264
50
Supra Note. 46
51
It, inter alia, authorizes the making of rules pertaining to the form of affidavit under sub section (3) of
Section 33A. (Inserted by Act 72 of 2002, Sec. 6 (w.r.e.f 24-8-2002)
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52. We shall now examine each one of the prayers in the writ
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1. issue a writ, order or direction, in the nature of mandamus –
xxx xxx xxx
(2) to respondent no.1 to consider suitable amendment in the Representation of the People Act
1951 to provide for rejection of nomination papers of the candidates and disqualification of
MPs/MLAs/MLCs deliberately furnishing wrong information about their assets in the affidavit in
Form 26 at the time of filing of the nomination;
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3. issue a writ, order or direction in the nature of mandamus to the respondents 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.
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ASSOCIATES.
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“1. Issue a writ, order or direction, in the nature of mandamus -
(1) to respondents no.1 and 2 to make necessary changes in the Form 26 prescribed under Rule 4A
of the Conduct of Election Rules, 1961 keeping in view the suggestion in para 38 of the WP;”
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1(1).
55. In the light of the law declared by this Court in ADR case
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56. We shall now deal with prayer 1(3) which seeks three
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the prayers are in the realm of policy and within the exclusive
57. We have already taken note of (i) the fact that increase in
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State.
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1. issue a writ, order or direction, in the nature of mandamus -
xxx xxx xxx
(3) to respondents no.3 to 5 to-
(i) conduct inquiry/investigation into disproportionate increase in the assets of MPs/MLAs/MLCs
included in list in Annexure P6 to the WP,
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67. We are left with the reliefs sought by way of prayer No. 5
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….....................................J.
(J. CHELAMESWAR)
….....................................J.
(S. ABDUL NAZEER)
New Delhi
February 16, 2018
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