IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. NO. _________/2013

IN

SPECIAL LEAVE PETITION (C) 29882/2012

IN THE MATTER OF:

ASHOK SHANKARRAO CHAVAN ….PEITTIONER

VERSUS

MADAVRAO KINHALKAR & ORS. ..RESPONDENTS

AND IN THE MATTER OF:

1. Common Cause (A Registered Society),

Through its Director,

Shri Kamal Kant Jaswal,

5, Institutional Area,

Nelson Mandela Road,

VasantKunj, New Delhi-110 070

2. Association for Democratic Reforms

(A Registered Society),

Through its Founder-Trustee,

Prof.Jagdeep S. Chhokar,

B-35, Qutub Institutional Area,

Kiwanis Centre, 4th Floor,

New Delhi -110 016

3. Commonwealth Human Rights Initiative

(A Registered Society),

Through its Director, Ms.MajaDaruwala,

B-117, First Floor, Sarvodaya Enclave,

 New Delhi – 110017

4. Manushi Sangathan,

(A Registered Society),

Through its President, Ms. Madhu Kishwar,

C-1/3, Sangam Estate,

1, Underhill Road, Civil Lines,

Delhi –110 054

5. Public Interest Foundation

(A Registered Society),

Through its Director, Shri Nripendra Misra,

B-32, Greater Kailash-I, New Delhi-110048

6. Forum For Fast Justice (A Registered Public Trust)

Through its Chairman,

Shri Bhagvanji Raiyani,

Kuber Bhuvan, Bajaj Road,

Vile Parle (West), Mumbai – 400 056

7. Foundation for Restoration of National Values

(A Registered Society),

Through its General Secretary,

Shri Bharat Wakhlu,

M-75, Greater Kailash, Part-I,

New Delhi – 110 048

8. Shri Boobli George Verghese,

C 11, DewanShri Apartment,

30, Feroze Shah Mehta Road,

New Delhi 110001

9. Shri J M Lyngdoh
 Former Chief Election Commissioner

144, Pragati Resorts,

Prodattur Village, Shankarpally,

P.O.- Ranga Reddy

Andhra Pradesh- 501203

10. Shri N. Gopalaswami

Former Chief Election Commissioner

Flat No. 5, ‘Leo Madhuram’

39, Giri Road, T. Nagar,

Chennai-600017

11. Shri K. J. Rao

Former Advisor to the Election Commission

Of India

E-6, Kakateeya Apartments

Plot No. 86

I.P. Extension, Delhi -92

APPLICATION FOR INTERVENTION

To

The Hon’ble Chief Justice of India

And his companion judges of the

Supreme Court of India

Most respectful showeth:

1. The present intervention application is being filed by the

applicants who have been working for long to bring about

systemic improvements in various democratic institutions

 and the reform of electoral processes. The issue involved

in the present SLP concerns one of the critical aspects of

electoral reforms, i.e. curbing the undue influence of

money power in the elections.

2. The stranglehold of money power on our electoral politics

keeps well-meaning and public-spirited individuals out of

the electoral arena and fosters an unholy alliance between

politicians and their financiers, which works to the

detriment of our democratic polity and the common weal.

In order to curb the growing influence of money power in

the elections, Parliament has empowered the Election

Commission of India under Section 10 A of the

Representation of People Act, 1951 to examine the

correctness or truthfulness of the accounts of election

expenses filed by the candidates. Where the account filed

by a candidate is found after an inquiry under Rule 89 of

the said Act to be incorrect or untrue, the Election

Commission is competent to hold that the candidate has

failed to lodge his account within the meaning of Section

10 A of the Act, rendering the said candidate liable to be

disqualified.

3. The Union of India through its counter affidavit filed in the

present SLP has made an attempt to deny the said power

of the Election Commission by giving a completely wrong

interpretation of Section 10 A of the Act. The applicants are

filing the present intervention application with the sole

object of ensuring that the institution of the Election

 Commission of India retains the plenitude of its power and

authority to safeguard the purity and integrity of the

electoral process.

4. Details of the Applicant organisations:

(i) Applicant No. 1, Common Cause, is a registered

Society under the Societies Registration Act XXI of

1860 (No. S/11017). It was founded in 1980 by the

late Shri H. D. Shourie with a view to ventilating the

common problems of the people and securing their

resolution. It has brought before this Hon’ble Court

various Constitutional and other important issues and

has established its reputation as a bona fide public

interest organization fighting for governance reforms

and an accountable, transparent and corruption-free

electoral system. In 1995, Common Cause filed a PIL

in the Supreme Court to bring about greater

accountability and transparency in the accounts of

election expenses incurred by political parties and

their respective candidates. In its landmark judgment

in WP (C) 24 of 1995, Common Cause Vs Union of

India and others(AIR 1996 SC 3081), the Court held

that the political parties were under a statutory

obligation to file regular returns of income and that a

failure to do so rendered them liable for penal action.

The Court delineated the sweep of the Election

Commission’s power under Article 324 of the

Constitution to call for scrutiny the accounts of

 expenditure incurred or authorized by the political

parties in connection with the election of their

candidates. This judgment marks a significant

advance in the campaign against the rampant

influence of black money in the elections by opening

the way for mandatory declaration of assets by the

candidates.

Shri Kamal Kant Jaswal, Director, Common Cause, is

authorized to file this Intervention Application.

Certificate & Authority Letter are filed along with the

vakalatnama.

(ii) Intervener No. 2, Association for Democratic Reforms

(ADR), a registered Society under the Societies

Registration Act XXI of 1860, has been in the

vanguard of electoral and political reforms in the

country. Its activities comprise advocacy for

transparent functioning of political parties, conducting

a detailed analysis of candidates in every election,

and researching the financial records of political

parties. In 1999, ADR filed a PIL in the Delhi High

Court seeking disclosure of criminal, financial and

educational background of candidates contesting

elections. Based on this, the Supreme Court in 2002

and subsequently in 2003 made it mandatory for the

candidates to disclose their criminal, financial and

educational background prior to the polls by filing an

affidavit with the Election Commission. ADR, along

 with National Election Watch, has conducted election

watches for the 2009 LokSabha Elections, RajyaSabha

Elections and almost all the State Assembly elections

since 2002.

ADR is striving to bring about transparency and

accountability in the functioning of political parties. In

April, 2008, ADR obtained a landmark order from the

Central Information Commission holding that the

Income Tax Returns of political parties and the

assessment orders passed on them will be available

to the citizens. ADR is now working to extend this

dispensation to members of Parliament and to bring

political parties under the ambit of the RTI Act.

Prof.Jagdeep S. Chhokar, Founder-Trustee, is

authorised to file this Intervention Application.

Certificate and Authority letter are filed along with the

vakalatnama.

(iii) Intervener No. 3, Commonwealth Human Rights

Initiative (CHRI), is an independent, non-partisan,

international non-governmental organisation,

mandated to ensure the practical realisation of human

rights across the Commonwealth. CHRI was registered

in India as a society (No. S – 24565) under the

Societies Registration Act on 21.01.1993. CHRI,

focuses on ensuring greater accountability and

transparency of governments and greater

participation of people in decision making as a means

 of addressing the violation of human rights.In its

pursuit of systemic reform, CHRI, has developed a

strong focus on Access to Justice, particularly police

reforms, and Access to Information,

Ms.MajaDaruwala, Director of Commonwealth Human

Rights Initiative, is authorised to file this Intervention

Application. Certificate & Authority Letter are filed

along with the vakalatnama.

(iv) Intervener No. 4, Manushi Sangathan, a non-profit-

organisation was founded in 1978. It works for

democratic reforms that promote greater social

justice and strengthen human rights for all,

especially women.

Manushi Sangathan was registered under the

Societies Registration Act in 1994 to focus on

research, investigation, policy reform and advocacy

to make governance more transparent and

accountable to people. Some of the salient PILs filed

by Manushi which led to major policy reforms include

land rights for women, policy reform for street

vendors, law reform to include for non motorized

vehicles, such as cycle rickshaws, as an integral part

of public transport system.

The Founder President of Manushi Sangathan, Madhu

Purnima Kishwar is a professor at the Centre for the

Study of Developing Societies based in Delhi.

 Certificate & Authority Letter are filed along with the

vakalatnama.

(v) Intervener No. 5, Public Interest Foundation, is a

registered society (Registration No. S/60918/2008). Its

Governing Council is headed by ShriNaresh Chandra,

former Cabinet Secretary and Ambassador to the

United States. Dedicated to addressing issues

concerning the welfare and larger interests of the

society, the Foundation aims to improve the quality of

governance and maximize the public welfare. For the

purpose of advocacy and consensus-building, the

Foundation has been sharing its research findings

with civil society organisations, government

ministries, political parties and elected

representatives. It has also filed a PIL on

Decriminalization of Politics before the Hon’ble

Supreme Court.

ShriNripendraMisra, Director, Public Interest

Foundation, is authorized to file this Intervention

Application. Certificate & Authority Letter are filed

along with the vakalatnama.

(vi) Intervener No. 6, Forum For Fast Justice, registered

under Bombay Public Trust Act, 1950, under

Registration No. E 24875(M), was set up in March

2008 by ShriBhagvanjiRaiyani, the Chairman and

Managing Trustee.
The Forum has been relentless in the pursuit of its

nationwide campaign of mass awareness on judicial

reforms under the slogan of SAVE JUDICIARY - SAVE

NATION. The members of the Forum also engage with

the government departments concerned, the Law

Commission of India, jurists, like-minded NGOs and

corporate entities, and concerned citizens. The aim of

the organization is to bring about greater

transparency, efficiency and accountability in the

justice delivery system at all levels.

ShriBhagvanjiRaiyani, Chairman Forum For Fast

Justice, is authorized to file this Intervention

Application. Certificate & Authority Letter are filed

along with the vakalatnama.

(vii) Intervener No. 7, Foundation for Restoration of

National Values, registered under Societies

Registration Act 1860, under registration no.

S/62441/2008, is a non-profit society registered on

9.6.2008 The applicant society functions as a non-

governmental organization, having been founded by

eminent citizens of India to instill the national bonds

of cultural values and cohesion in society that would

ensure the fulfillment of the goals, objectives and

exalted principles enshrined in the Constitution of

India. The applicant society works tirelessly to restore

our time-tested National, and Cultural values, in order

 that people, individually and collectively, find an

abiding inner persuasion to be truthful, ethical,

patriotic and committed to serving the greater good.

Its Advisory Board comprises Justice M.N.

Venkatachaliah, Sri Ratan N. Tata, Dr. E. Sreedharan,

Sri N. Vittal, Sri T.S. Krishnamurthy and Smt. Vibha

Parthasarathi, all of whom have impeccable

credentials and widely recognized acumen in their

respective areas of human endeavour and enterprise.

Sri Bharat Wakhlu, General Secretary, Foundation for

Restoration of National Values, is authorized to file

this Intervention Application. Certificate & Authority

Letter are filed along with the vakalatnama.

(viii) Intervener No. 8, ShriBoobli George Verghese, is a

veteran journalist, author and social activist. He has

been Information Adviser to Prime Minister; Editor,

Hindustan Times; Editor, The Indian Express; and

Information Consultant to Defence Minister.

ShriVerghese has been associated with Media

Foundation, Editor’s Guild of India, Commonwealth

Human Rights Initiative, Centre for Science and

Environment, He has served on a number of Boards

and Commissions, including the National Security

Advisory Board and the Kargil Commission, and won

many a distinction, including Magsaysay Award,

Gandhi Peace Foundation Rural Development

Fellowship and Sankaradeva Award.

 (ix) Intervener No. 9, Shri J M Lyngdoh is former Chief

Election Commissioner of India. He was CEC from 14 th

June 2001 to 7th February 2004. He is one of the

members of India Rejuvenation Initiative an Indian

anti-corruption organization formed by a group of

retired and serving bureaucrats.

(x) Intervener No. 10, Shri N. Gopalaswami is the former

Chief Election Commissioner. He is 1966 batch IAS of

Gujarat Cadre. He took over the charge of CEC on 30

June 2006 and has retired in April 2009. Prior to this

appointment in the Election Commission of India, he

was the Union Home Secretary and prior to that, he

held the posts of Secretary in the Department of

Culture and Secretary General in the National Human

Rights Commission.Gopalaswamy had also worked as

adviser (education) in the Planning Commission, joint

secretary, department of electronics, in charge of

software development and industry promotion

division and also the head of Software Technology

Park of India (STPI) Society and SATCOMM India

Society.

(xi) Intervener No. 11, Mr. K. J Rao was an advisor to the

Election Commission of India and he was also an

Election Observer in 2004 Bihar Assembly Elections.

5. There is a growing concern that the pandemic of Paid News

is eating into the vitals of our democratic polity by

compromising the purity of the elections and destroying

 the credibility of the print/electronic media. The magnitude

and implications of the practice have fully been brought

out in the Seminal Report on Paid News by Kalimekolan

Sreenivas Reddy and Paranjoy Guha Thakurta, who had

been commissioned by the Press Council of India to

investigate the phenomenon. Copy of the relevant pages

of the report dated 08.08.2010 by Kalimekolan Sreenivas

Reddy and Paranjoy Guha Thakurta is annexed hereto as

Annexure A (from page nos. _____to _______).

6. Since there is no express provision in the Representation

of the People Act that makes the practice of Paid News

culpable, the Election Commission of India has invoked the

provisions of Section10A- Disqualification for failure to

lodge account of election expenses- read with Sub section

(1) of Section 77- Account of election expenses and

maximum thereof- of the said Act to disqualify one Umlesh

Yadav, who had been elected to the U. P. Legislative

Assembly in the 2007 general election, for failing to

account for an expenditure of Rs. 21,250/-on an

advertisement that had appeared in the disguise of a news

item in the Dainik Jagran of 17.04.2007. The order of the

Election Commission of India, which relies on the rulings of

the Supreme Court in Common Cause vs. Union of India

and Others (AIR 1996 SC 3081) and LR Shivaramagowda

vs. TM Chandrasekhar (AIR 1999 SC 252), is attached

hereto as Annexure B (from page nos. ______to ______).

7. It is submitted that the transgression in the case of Umlesh

Yadav pales into insignificance in comparison to the media

blitzkrieg launched to support the candidature of the

Petitioner in the present case in the general election to the

State Assembly in 2009. The Petitioner at the relevant time

was the Chief Minister of Maharashtra. The Reddy –Guha

Thakurta Report quotes extensively from P. Sainath’s

revealing testimony on the subject, as well as from the

Petitioner’s deposition before the Press Council.

8. It will be pertinent to mention here that the present case

had a direct bearing on Umlesh Yadav’s case. As would be

seen from paragraphs 24 to 26 of the order of the Election

Commission in Umlesh Yadav’s case, which had been

referred to the Commission by the Press Council after its

adjudication, the final decision in the matter could be

made only after the dismissal by the Delhi High Court of

the writ petition filed by the present Petitioner challenging

the Election Commission’s competence to go into the

correctness of an account of election expenses. The stand

taken by the Commission in its order dated April 2, 2011

that it had jurisdiction under Section 10 A of the Act to go

into the correctness of the accounts filed by the Petitioner

was rightly upheld by the Hon’ble High Court.

9. The said order of the Hon’bleDelhi High Court has been

challenged on specious grounds in the present SLP. Instead

of rebutting the fallacious arguments advanced in the SLP,

the Union of India, which has ostensibly taken a strong

 public position on the issue of Paid News and applauded

the efforts of the Election Commission to curb this menace,

has filed a counter affidavit which reveals its true colours.

The Union of India has affirmed that a plain reading of

Section 10A of the Representation of the People Act and

Rule 89 of the Conduct of Election Rules indicates that the

power of the Commission to disqualify a person arises only

in the event of failure to lodge an account of election

expenses and not for any other reasons, including the

correctness or otherwise of such account. Copy of the

counter affidavit filed by the Union of Indiain February

2013 in the present SLP is annexed hereto as Annexure C

(From page nos. _______to _______).

10. The aforesaid averment of the Union of India flies in

the face of this Hon’ble Court’s landmark decision in

Common Cause vs. Union of India and Others,reported as

(1996) 2 SCC 752 in which it had held as follows:

“26. Superintendence and control over the conduct of

election by the Election Commission include the scrutiny

of all expenses incurred by a political party, a candidate

or any other association or body of persons or by any

individual in the course of the election. The expression

"Conduct of election" is wide enough to include in its

sweep, the power to issue directions - in the process of

theconduct of an election - to the effect that the political

parties shall submit to the Election Commission, for its

scrutiny, the details of the expenditure incurred

 orauthorized by the parties n connection with the

election of their respective candidates.”

11. This Hon’ble Court had unequivocally held in LR

Shivaramagowda vs. TM Chandrasekhar that an account of

election expenses which is not true or is incorrect cannot

be said to have been filed in the manner required by law

and that for filing such incorrect return of election

expenses, the candidate can be disqualified by the Election

Commission under section 10A of the Representation of

the People Act. The implications of the failure to file correct

account of election expenses have been spelt out in a

judgment of three- member Bench of this Hon’ble Court

inLR Shivaramagowda vs. TM Chandrasekhar, AIR 1999 SC

252, in the following terms:

“21. The judgment in Gajanan's case referred to earlier

has reiterated the High Court view set out above. It was

held that the provisions of Section 123(6) related only to

Section 77(3) of the act and not to violation of Sub-

sections (1)&(2) of Section 77.

22. It was argued by learned counsel for the first

respondent that the aforesaid view would enable any

successful candidate at an election to snap his fingers at

the law prescribing the maximum limit of expenditure

and escape from the provisions of Section 77(3) by filing

false accounts. According to him, if the aforesaid

construction of Sections 77 and 123(6) is to be adopted,

there will be no sanction against a candidate who incurs

an expenditure exceeding the maximum prescribed

limit. Referring to Section 10(A) of the Act, which

enables the Election Commission to disqualify a person

who had failed to lodge an account of election expenses

within the time and in the manner required by or under

the Act and had no good reason or justification for the

failure, he contended that the said Section provides only

for a situation arising out of failure to lodge an account

and not a situation arising from a failure to maintain

true and correct accounts. We are unable to accept this

contention. In our opinion, Sub-section (a) of Section

10(A) takes care of the situation inasmuch as it provides

for lodging an account of election expenses in the

manner required by or under the Act. Section 77(2)

provides that the accounts shall contain such particulars

as may be prescribed.

Rule 86 of the conduct of Election Rules provides for

the particulars to be set out in the account. The said

Rule prescribes that a voucher shall be obtained for

every item of expenditure and for lodging all vouchers

along with the account of TC election expenses. Rule 89

provides that the District Election Officer shall report to

the Election Commission, the name of each contesting

candidate, whether such candidate has lodged his

account of election expenses and if so the date on which

such account has been lodged and whether in his

 opinion such account has been lodged within the time

and in the manner required by the Act and the rules.

That Rule enables the Election Commission to decide

whether a contesting candidate has failed to lodge his

account of election expenses within the time and in the

manner required by the Act after adopting the

procedure mentioned therein. If an account is found to

be incorrect or untrue by the Election Commission after

enquiry Under Rule 89, it could be held that the

candidate had failed to lodge his account within the

meaning of Section 10(A) and the Election Commission

may disqualify the said person….”

12. The counter affidavit filed by the Union of India seeks

to not only undo all the good work done by the Election

Commission of India to curb the influence of money power

in the elections and enforce the accountability of the

candidates in respect of their election expenses by holding

out the prospect of disqualification, but also unsettle the

law already settled by this Hon’ble Court. It is submitted

that the capacity of the Election Commission of India to

ensure the purity of the elections is sought to be

undermined in the counter affidavit filed by the Union of

India. Hence, the present intervention application is being

filed by public-spirited civil society organizations and

activists to defeat this nefarious design of the Union of

India and to give proper assistance to this Hon’ble Court in

the adjudication of a dispute concerning a critical

 dimension of electoral reforms dictated by the imperative

of safeguarding the purity of elections and curbing the

corrupting influence of money power.

Prayers

In view of the aforementioned facts and circumstances, this

Hon’ble Court may be pleased to:

(a) Allow the applicants to intervene in the

aforementioned SLP; and

(b) Pass any other order as this Hon’ble Court may deem

fit and proper.

Applicants

Through
(Prashant Bhushan)
Counsel for the Applicants
New Delhi
Dated: