The Supreme Court’s [‘SC’] decision in Lok Prahari v. Union of India marks an important addition to electoral reform jurisprudence in India. In this case, the Court issued directions for the institution of a permanent mechanism for the periodical monitoring of increase in assets of MPs/MLAs that is disproportionate to their known sources of income. This monitoring body is then required to publish the information, and recommend suitable action. This is only a successor to a line of judgments relating to financial accountability among legislators – primarily, Union of India v. Association for Democratic Reforms [‘ADR’] and Union for Civil Liberties (PUCL) v. Union of India [‘PUCL’].
This post seeks to examine the decision in Lok Prahari and reveal its strengths and weaknesses, particularly in terms of the susceptibility of its reasoning to legislative intervention. This question is critical, when seen in light of the conflict between the legislature and the judiciary created by electoral reforms before. Towards this end, I first look at the common reasoning that connects this trio of cases, and then trace the chronology of the aforementioned conflict. In doing this, I shall further examine how this struggle was shaped by this reasoning that informed the judiciary’s stance. Finally, I will specifically examine the reasoning of the SC in Lok Prahari – the constitutionality of its decision, and the reasons behind its omissions. This post attempts to outline the impact of the above power-struggle on the strength of these reforms, and its implications in shaping the SC’s electoral jurisprudence.
The common reasoning informing these decisions is that the right to information was read in to be a part of the right to freedom of speech and expression under Article 19(1)(a), in order to mandate certain disclosures. The SC made this connection in ADR, and affirmed it in both Lok Prahari and PUCL. The Court in ADR quoted its decision in Secy, Minister of I&B v. Cricket Association of Bengal –
“The freedom of speech and expression includes right to acquire information and to disseminate it… It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy…”
Lok Prahari further reaffirmed ADR’s reasoning –
“This Court…opined that voter speaks out or expresses by casting vote and such a speech is part of the fundamental right under Article 19(1)(a). This Court after taking into consideration various aspects of the matter… held that for the effective exercise of his fundamental right, the voter is entitled to have all relevant information about the candidates at an election…”
This reasoning had an important implication for the conflict between the legislature and the judiciary. The conflict itself, as well as the SC’s efforts in working around it, has had significant impacts on the efficacy of the SC’s reforms. Particularly, this post will discuss the effect of this conflict on the Lok Prahari petition as well as on the decision’s consequence.
In ADR, the Court held that the candidates will be required to make certain disclosures – criminal charges, pending cases or convictions, asset, liabilities, and educational qualifications. However, no consequences were provided for in cases of non-disclosure. The Legislature responded by enacting the Representation of People (Third Amendment) Act, 2002 [‘2002 Amendment’] diluting the disclosure requirements of ADR. Disclosure requirements now included only certain classes of charges and convictions and completely eliminated educational qualifications. Further, Parliament enacted S.33-B of the Representation of People Act, 1951 [‘1951 Act’]. It provided that, notwithstanding any direction by any Court or the Election Commission, no disclosures shall be mandatory unless so required by the Act.
This first conflict was followed by PUCL, in which the SC declared S.33B to be unconstitutional. The Court reasoned that, once it held the right to information to be a part of Article 19(1)(a), it could only be reasonably restricted under Article 19(2). S.33B did not qualify, as it unreasonably stagnated the naturally dynamic growth of the right to information. It restricted the ability of the judiciary to interpret a fundamental right – prohibiting its legitimate growth through SC jurisprudence. Notably, the Court affirmed the Legislature’s plenary power to enact electoral reforms, but merely limited the exercise of this power to imposing only ‘reasonable restrictions’. By SC’s admission in ADR, the directives only fill a legislative-void, and the SC cannot overturn legislative curtailment of SC’s reforms, as long as they are reasonable – a term notorious for shape-shifting. Moreover, the power (not the function) to create grounds for disqualification of MPs has also been conferred on the Legislature, as per Article 102(e) of the Constitution.
Given these limitations, the balance struck by the SC in the conflict within the basic structure of the Constitution – free and fair elections, and separation of powers – is commendable. Reading in the right to information into the right to freedom of expression, and defining the content of the same, has, at least, ensured that the SC’s disclosure requirements cannot be unreasonably constrained.
However, the Legislature’s power to impose reasonable (with all its subjectivity) constraints, as well as to delay reform-implementation through legislating unreasonable restrictions, remains. The ability of the Legislature to intervene (whether it is ‘reasonable’ is only adjudicated upon much later by the SC, if at all) enables dilution of these reforms by rendering their implementation volatile, as could be seen from the 2002 Amendment.
An illustration of this volatility can be seen in the petition in Lok Prahari. One of the prayers was for the declaration of non-disclosure of assets (which was made mandatory in ADR) as grounds for disqualification as a ‘corrupt practice’ under Section 100, read with Section 8A, of the 1951 Act. The prayer indicates a lack of conclusiveness in the holding of ADR. There was no enforceable sanction in place for non-disclosure, till this prayer was accepted in Lok Prahari. A separate petition, granted more than a decade later, was required to make ADR actually effective.
The Court’s grounds for granting this prayer and classifying it as ‘undue influence’ [which is a ‘corrupt practice’ under Section 123 of the 1951 Act] become material –
“While filing the nomination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, is not given, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark. This attempt undeniably and undisputedly is undue influence and, therefore, amounts to corrupt practice.”
This is a powerful tool to create new disqualifications judicially (despite it being a legislative prerogative) by merely interpreting ‘undue influence’ after creating new disclosure requirements – a power that the SC has already gained after ADR. Arguably, one could say that it amounts to judicial usurpation of legislative powers, as conferred by Article 102 of the Constitution. By first creating disclosure requirements, and then considering their violation ‘corrupt practice’, the judiciary has effectively created new grounds for disqualification. This important counter-argument has not been identified and discussed by the SC in the decision at all. The SC failed to comment on the pertinent fact that the disclosure requirements themselves were judicially created.
However, I argue that, upon relying on the SC’s own jurisprudence across ADR, PUCL, and Lok Prahari, and breaking down the conclusion into clear logical steps, it becomes clear that the conclusion is constitutionally justified. The first step, that is, creating the disclosure requirements, is justified as being a part of Article 19(1)(a), as interpreted in both ADR and Lokprahari. The second step of providing for disqualification due to non-disclosure is a mere interpretation of the term ‘undue influence’, and thus, of ‘corrupt practice’, to include suppression of any (judicially) mandated disclosures. Textually, these already constitute grounds for disqualification according to the statute itself. The SC, in not making the two-step derivation explicit, has given way to questions on separation of powers. However, upon a closer look at the trio of cases, this decision would only amount to supplying content to the meaning of ‘undue influence’ under the statute – a function that the judiciary is entitled to perform.
However, the confusion in the power-distribution between the two organs continues. The Court’s refusal to make false disclosure of assets (as opposed to non-disclosure) a ground for disqualification, is indicative of this. The SC could have easily interpreted ‘undue influence’ to include, not just non-disclosure, but also false disclosures. Arguably, this problem is general and is symptomatic of the Supreme Court’s legislative-void jurisprudence, and the resultant struggle in marking the appropriate scope of judicial rule making. However, it has only been exacerbated by the strong resistance of the Legislature to any reforms on the electoral process. While the SC has succeeded in adopting reasoning that would allow it to work around the resistance, the resultant inherent confusion in the power-arrangement, has led to the reasoning not being applied consistently in Lok Prahari.
Further, there are limitations to the reach of this reasoning, which have far-reaching implications for the strength of Lok Prahari. The above interpretation can only be used to penalize non-disclosures (and if my argument holds, false disclosures) made during the election campaign, before the taking of office. Non-disclosures, after being elected, cannot be interpreted to be ‘undue influence’. Thus, the consequences of non-cooperation of an MP/MLA, in the periodical financial monitoring framework that Lok Prahari creates, are still left unclear and up to future interpretation/legislation. This begs the question – will the decision in Lok Prahari also become a paper tiger, subject to either legislative dilution or subsequent judicial strengthening?
The judiciary has evolved concrete jurisprudence, side-stepping the constitutionally embedded weaknesses in our electoral reform mechanisms, without violating the separation of functions envisaged by the Constitution. This has, however, led to the reforms being susceptible to dilution and volatility because of legislative action, which has tended to stall or reverse any progress in transparency with undemocratic impunity. Of course, there is the inherent issue of the fox guarding the henhouse – but it is troublesome to think that democratic representation and accountability are not effective counters to the problem of conflict of interests. Thus, while the SC is just in taking up a larger role in electoral reforms, the fractures of our democracy still need to be tended to in a more institutional and long-term manner.
Hrishika Jain is a III Year B.A. LL.B (Hons.) student at the National Law School of India University, Bangalore (Batch of 2020). She is an Editor for the National Law School of India Review. Her major areas of interest are constitutional law and women’s rights. She thanks Dhanush Dinesh, Dhruva Gandhi, and Shubham Jain for their valuable feedback on earlier versions of the piece.