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IN THE HON’BLE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
IA NO. OF 2016
IN
PIL Writ Petition (Civil) No. 784 of 2015
(Under Order LV Rule 6 of the SCR 2013)
IN THE MATTER OF
Lok Prahari, through its General Secretary …Petitioner.
Versus
Union of India and Others Respondents.

APPLICATION FOR AMENDMENT OF THE WRIT PETITION

To

The Hon’ble Chief Justice of India and his companion

Justices of the Supreme Court of India.

The humble petition of the petitioner above named

MOST RESPECTFULLY SOWETH:

1. That the applicant had filed the instant writ petition for

enforcement of Article 19(1)(a) of the Constitution and to

effectuate meaningful implementation of the judgments of

this Hon’ble Court in Association for Democratic Reforms

(AIR 202 SC 2112), People’s Union for Civil Liberties

(PUCL) (AIR 2003 SC 2363), Resurgence India Vs.

Election Commission of India and Another (AIR 2014 SC

344) and Krishnamoorthy Vs. Sivakumar (AIR 2015 SC

1921) in this regard for restoring and maintaining the purity

of our highest legislative bodies in accordance with the

intentions of the founding fathers of the Constitution and

the concern expressed by the framers of the

Representation of the People Act, 1951.

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2. That, subsequent, to the filing of the writ petition there have

been certain developments necessitating filing of this

amendment application. Also, on 4.7.2016 the Hon’ble

Court was graciously pleased to adjourn the matter to

enable the petitioner in person to study in depth the issue

raised in the writ petition in wider perspective. Accordingly,

the instant application is being filed for permission to

amend the writ petition as follows.

3. That the following paragraphs may kindly permitted to be

added after para 40 in the writ petition-

“40A. That vide letter dated 27.3.2016 the petitioner

requested the CPIO, CBDT to supply copy of the

enclosure to the letter dated 9.7.2015 (annexed with

Annexure 1 to the IA dated 25.6.2016) and

information about outcome of the cases wherein

investigation was complete. Copies of this letter

were also sent to the First Appellate Authority and

to Member, CBDT for early compliance of the

instruction in her letter dated 9.7.2015. However,

there has been no response from any of them,

despite petitioner’s letter dated 9.6.2016.

40B. That in view of the reluctance of the CPIO, CBDT to

supply information about verification of assets of

even 26 MPs in the list annexed with Annexure P-6

to the WP, whose assets had increased by more

than 5 times, vide RTI application dated 27.3.2016

the petitioner had also sought similar information. A

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scrutiny of the photocopies of reports (annexure 4 to

IA dated 25.6.2016) of various Director Generals

(Investigation), CBDT to the Election Commission

supplied to the petitioner by the CPIO of the

Commission shows that-

(1) Even after the letter dated 11.8.2015

(Annexure 3 to the I.A.No.4) from the CBDT in

pursuance of the petitioner’s representation

dated 30.6.2015 (Annexure 6 to the WP)

seeking compliance report within a month,

verification of assets has been done only in

respect of 11 out of 26 MPs mentioned at Sr.

Nos. 1, 5, 8, 9, 10, 11, 17, 18, 19, 21, and 25

in the list at page 63 of the WP.

(2) No verification has been done in respect of all

the 6 MPs from UP, 2 MPs from Maharashtra,

2 MPs from Orissa, and 1 MP each from

Jharkhand, Assam, Gujarat, Tamil Nadu, and

Karnataka mentioned in the aforesaid list.

(3) Even the verification reports in respect of the

MPs at (1) do not answer the issue as to

whether more than 500% increase in their

assets in 5 years was commensurate with the

increase in income from their known sources

of income or could be fully explained by any

other valid reason. Apparently, in the absence

of the information of known sources of income

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of the candidate and his/her spouse and

dependents, the whole purpose of verification

has been lost.

(4) Out of the list of 257 MLAs (annexed with

Annexure 6 to the WP), verification of assets

has been done only in respect of 13 MLAs,

and that too does not address the issue as to

whether in increase in assets is commensurate

with known sources of income or is justified by

any other valid reason.

(5) As stated in the letter dated 16.7.2015

(annexure 5 to IA dated 25.6.2016) from the

Director of Income Tax(Inv.) Patna to the

Director General of Income Tax (Inv.) Patna

“the affidavits of the winning candidates could

not be compared with the Return of Income

owing to the fact that our ITD application does

not have specific details of movable assets”.

Likewise, for the same reason, in the absence

of information about sources of income of the

candidate, his spouse, and dependents in the

affidavit in Form 26 it is not possible for the

voters draw any meaningful conclusion about

his integrity.

40C. That the position stated in the proceeding para fully

justifies the prayer (3) in the writ petition so that the

purpose of formulating the guidelines finalized in

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consultation with the Election Commission is

achieved and the object behind this exercise is

fulfilled. Otherwise, mere superficial verification of

assets declared in the affidavit, without inquiring 5as

to whether the increase in assets is commensurate

with the increase in income from known sources or

for any other valid reason like inheritance, revision

of circle rate etc, will defeat the whole purpose of

declaration of assets by the Candidates to provide

an insight to the voters about their integrity.

40D. That as per information provided by the ADR in

respect of the 57 recently elected members of Rajya

Sabha.

(i) The increase in assets is highly

disproportionate to the total income declared

in the last ITR.

(ii) Assets of members at Sr. Nos. 1 and 5

increased by more than 2000% and 500%

respectively even though the profession

declared by them is Rajya Sabha member and

social, political activist.

A true and correct copy of the details of 11

newly elected members whose assets increase by

more than 100% is annexed as Annexure P- 10 to

the WP.

40E. That in response to the petitioner’s letter dated

29.2.2016 (Annexure 1 to the IA No. 5 Application

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for Direction) the Under Secretary to the Election

Commission vide his letter dated 26.5.2016

(Annexure 2 to the petitioner’s supplementary

affidavit dated 25.6.2016 in support of the

application for Direction) had informed that the

proposal was discussed in the meeting with political

parties, and the Commission’s decision in the

matter will be informed shortly. Since information

about the Commission’s decision is still awaited, a

request has been made to the Commission again

vide letter dated 9.7.2016 a copy of which is

annexed as Annexure P- 11 to the WP.

40F. That apart from modification in Form 26 to

incorporate the aforesaid information, a more

important point which was missed out by the

petitioner in person, while drafting the writ petition is

the omission in Form 26 of the information about

any contract with the appropriate government etc. In

this connection it is relevant that the 1951 Act as

originally enacted had the following provision in

Section 7(d)-

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-
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a) x x x

(b) x x x

(c) x x x

(d) If, whether, by himself or by any person or

body of person is trust for him or for his benefit or

on his account, he has any share or interest in a

contract for the supply goods to, or for the execution

of any works or the performance of any services

undertaken by, the appropriate Government;.

(e) x x x

(f) x x x

Section 8 (1)(c), (d) and (2) of the original Act

provided as follows-

“8. Savings- (1) Notwithstanding anything in section

7-

(a) x x x

(b) x x x

(c) a disqualification under clause (d) of that

section shall not, where the share or interest in the

contract devolves on a person by inheritance or

succession or as a legatee, executor or

administrator, take effect until the expiration of six

months after it has so devolved on his or of such

longer period as the Election Commission may in

any particular case allow;”.

(d) a person shall not be disqualified under clause

(d) of that section by reason of his having a share or

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interest in a contract entered into between a public

company of which he is a shareholder but is neither

a director holding an office of profit under the

company nor a managing agent and the appropriate

Government;”

(e) x x x

(f) x x x

(g) x x x

(2) Nothing in clause (d) of section 7 shall extend

to a contract entered into between a co-operative

society and the appropriate Government.

Section 9(1) and (2) of the original Act provided as

follows-

9. Interpretation etc.- “(1) In this Chapter-

(a) “appropriate Government” means in relation to

any disqualification for being chosen as or for being

in relation 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;

(b) “public company” means a public company as

defined in section 2 of the Indian Companies Act,

1913 (VII of 1913).”

(2) For the avoidance of doubt it is hereby

declared that where any such contract as is referred

to in clause (d) of section 7 has been entered into

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by or on behalf of a Hindu undivided family and the

appropriate Government, every member of that

family shall become subject to the disqualification

mentioned in the said clause; but where the contract

has been entered into by member of a Hindu

undivided family carrying on a separate business in

course of such business, any other member of the

said family having no share or interest in that

business shall not become subject to such

disqualification.”

40G. That subsequently, by amending Act 58 of 1958

Section 7(d) was amended to read as follows-

“(d) if there subsists a contract entered into in the

course of his trade or business by him with the

appropriate Government for the supply of goods to,

or for the execution of any works undertaken by,

that Government”

40H. That the statement of Objects and Reasons of the

1958 Amending Act ran as follows-

“The Object of the present Bill is to carry out certain

amendments in the Representation of the People

Act, 1950 and 1951, which are considered

necessary in the light of the further experience

gained by the Election Commission and the

Government in the working of these two Acts since

their last amendments in 1956. The reasons for the

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principal changes proposed in the Bill are given in

the Notes on clauses”.

The following reasons were given for the changes in

amended Section 7 (d) stated in the preceding para

by clauses 15, 16, 17 of the Amending Act.

“Clauses 15, 16, 17 – The language of section 7(d)

of the 1951-Act which provides for disqualification in

case of contracts with the Government is wide and

vague enough to bring any kind or category of

contract within its scope and it has been a fruitful

source of election disputes in the past. Persons who

only occasionally boardcast any talk from the radio

station or contribute any article to any Government

publication may come within the mischief of this

section. It is accordingly, proposed to redraft section

7(d) in a simpler and more rational way so as to

bring within purview only two categories of contracts

entered into by a person with the Government in

the course of his trade or business. These two

categories are contracts for the supply of goods and

contracts for the execution of any works.

By way of consequential amendments clauses (c)

and (d) of sub-section (1) of section 8, sub-section

(2) of that section and sub-section of section 9 are

proposed to be omitted by clauses 16 and 17”.

40 I That significantly, the reasons given in the SOR of

the 1958 Amending Act for restricting the scope of

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the provision in Section 7(d) of the original Act is not

justified by the example cited in the notes on

clauses reproduced above. Such cases could be

taken care of by simply deleting the words “or the

performance of any services” instead of using these

as an alibi to restrict the original provision to a

subsisting “contract entered into in the course of his

trade or business by him”. Apparently, the real aim

was to give an opening to legislators to have

business dealings with the government indirectly

through HUF or a firm/trust/company in which he is

a shareholder or even Director. This lacuna in the

amended provision has been exploited by our

legislators to further their self interest by misusing

their position as ‘public representatives’.

40 J. That thereafter, by amending Act 47 of 1966

Chapter III of the original Act regarding

disqualification containing Sections 7, 8 and 9 was

substituted by Chapters III and IV of the existing Act

and the provision in Section 7(d) of the original Act

was incorporated along with an added explanation

as Section 9-A of the present Act which runs as

follows-

“9A. Disqualification for Government contract,

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

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appropriate Government for the supply of goods to,

or for the execution of any works undertaken by,

that Government.

Explanation.- For the purposes of this section,

where a contract has been fully performed by the

person by whom it has been entered into the

appropriate Government, the contract shall be

deemed not to subsist by reason only of the fact

that the Government has not performed its part of

the contract either wholly or in part.”

40.K That the objects and reasons which prompted the

insertion of Section 9-A in place of old Section 7(d) ,

as extracted in the judgment in the case reported in

(2002) 5 SCC 568 and reproduced in the erudite

judgment in the case of Bajrang Bahadur Singh, a

former MLA in UP, (2015) 12 SCC 570 (Para 48)

were as follows-

“30. The objects and reasons for substituting

Section 7(d) by Section 9-A are as under:-

Apart from the grouping of the sections effected by

clause 20, some changes have also been made in

the relevant provisions. In the new Section 9-A, an

Explanation has been added to make it clear that a

contract with the Government shall be deemed not

to subsist by reason only of the Government has not

performed its part of the contract either wholly or in

part. This change has become necessary in order to

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do away with the disqualification that attached to a

person for being chosen as or for being a Member

of Parliament or State Legislature even after he has

fully performed his part of the contract, since it

would hardly be justifiable to retain such a

disqualification provision in a modern welfare State

when State activities extend almost every domain of

the citizen’s affairs where very many persons, in

one way or the other, have contractual relationship

with the Government. That being the case, an

unduly strict view about government contract in the

present day might lead to the disqualification of a

large number of citizens many of whom may prove

to be able and capable Members of Parliament or

State Legislatures. It would be of interest to note in

this connection that in the United Kingdom, any

disqualification arising out any contract with the

Crown has been done away with the House of

Commons Disqualification Act, 1957”.

40.L That significantly, unlike Section 7(d) of the original

Act, the present Section 9-A of Act limits the

disqualification to a subsisting contract entered into

by the candidate with the appropriate government,

whereas the original provision disqualified a person

if he had any share or interest in a contract “whether

by himself or by any person or body of persons in

trust for him or for his benefit or on his account

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subject, of course, to the exceptions provided in

Section 8(1) (c) and (d) and clarification in Section

9(2) of the original Act reproduced hereinbefore.

40M. That, however, the existing format of affidavit in

Form 26 does not provide to the voters even the

limited information about Government contracts

stipulated in Section 9-A of the Act. As a result, the

voters remain in dark about their so-called

representatives and their families enriching

themselves at public expense and getting away with

it with impunity by being re-elected repeatedly

taking advantage of this ill gotten money.

Consequently, the increasing role of money power

has been increasingly vitiating the election process,

despite the concern expressed in the observations

by the Apex Court in this regard from time to time.

This is confirmed by the following recent

observations of this Hon’ble Court-

(i) “Criminality and corruption go hand in hand.

From the date the Constitution was adopted

i.e., 26th January 1950, Red Letter Day in the

history of India, the nation stood as a silent

witness to corruption at high places.

Corruption erodes the fundamental tenets of

the rule of law”.

Manoj Narula Vs. Union of India,

JT (9) 2014 SC 591 (Para 13).

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(ii) “We cannot close our eyes to the reality of

the unwholesome influence which money

power exerts on the Political System in this

Country”.

Bajrang Bahadur Singh (supra) (Para 56)

40N. That in the circumstances, it is necessary that to

enable the voters to make an informed choice about

the integrity of a candidate the voters are provided

with the information not only about the candidate’s

subsisting contracts with appropriate government

but also about the 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.

40.O. That the suggestion in the preceding para is fortified

by the following observations of this Hon’ble Court

in the case of Bajrang Bahadur Singh (Supra)-

“The purpose of Section 9-A as repeatedly held by

this Court is to maintain the purity of the legislature

and to avoid conflict of personal interest and duty of

the legislators” (Para 53) and

“Any interpretation of Section 9-A which goes to

assist a legislator who directly enters into a

contractual relationship with the State for deriving

monetary benefits (in some cases of enormous

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proportions) should be avoided and be given a

construction which as far as possible eliminates the

possibility of creating such situation where the duty is

certainly bound to conflict with personal interest.”

(Para 56).

40P. That above observations of this Hon’ble Court are

entirely in sync with the reply of Dr. Amebedkar

during the debate on the Representation of the

People Bill, 1951 –

“Another thing that we must bear in mind and which

I think goes to root of the matter is that our

Parliament and our Electoral law should be so

constituted that the independence of the Members

of parliament as against the Government must be

scrupulously observed. There can be no use in a

Parliament if we adopt a system, which permits the

Government to corrupt the whole of Parliament

either by offering Political offices or by offering

some other advantages. If a Parliament cannot act

independently without fear or without favour from

the Government, in my judgment, such a Parliament

is of no use at all”. (Parliamentary Debates volume

11 part II, page 8353-54).”

4. That in the light of averments in para 3 above, the following

grounds after ground S may kindly be permitted to be

added in the writ petition-

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T. Because, the suggestion for inclusion of information

about the sources of income of the candidate and

his/her spouse and dependents as well as their

contracts with the appropriate government or a public

company by Hindu undivided family/trust/partnership

firm/private company in which they have any share or

interest is in conformity with the objects and purpose of

Section 9-A of the Act and the law laid down by this

Hon’ble Court in this regard.

U. Because, the amendment in Section 7(d) as enacted in

the original Act by unnecessarily replacing it with a very

restricted Section 9-A on a rather feeble ground was not

in accordance with the intentions of the framers of the

Act.

5. That consequently the following may kindly be permitted to

be added as prayer 3 and 4 in the writ petition and the

existing prayer at 3 and 4 may be renumbered as 5 and 6-

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,

4. issue a writ, order or direction in the nature of

mandamus to the respondents that, pending

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amendment in Section 9-A of the Act, information about

the 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 shall also be

provided in the affidavit in Form 26 prescribed under

the Rules,

6. That the aforesaid facts and documents fully support the

Prayers in the writ petition as amended and the application

for interim relief. It is therefore, expedient in the interest of

justice that the amendments proposed in paras 3, 4 and 5

are permitted to be incorporated by way of amendment to

the writ petition.

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble

Court may graciously be pleased to:

(i) allow this application for amendment of the writ petition as

per paras 3, 4 and 5 of this application, and/or,

(ii) pass such other or further orders as may deem fit and

proper.

And for this act of kindness the applicant shall ever remain
grateful.

New Delhi (Satya Narain Shukla)

Dated- 12.7.2016. General Secretary, Lok Prahari
Petitioner-in Person