TMI Blog2015 (2) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... Municipality, shall furnish full and complete information in regard to all the five matters referred in paragraph-5 of the preamble, in an Affidavit or Declaration, as the case may be, in the format annexed hereto:- Provided that having regard to the difficulties in swearing an affidavit in a village, a candidate at the election to a Ward Member of Village Panchayat under the Tamil Nadu Panchayats Act, 1994 shall, instead of filing an Affidavit, file before the Returning Officer a declaration in the same format annexed to this order: 2. The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State or before an Officer competent for swearing an affidavit. 3. Non-furnishing of the affidavit or declaration, as the case, may be, by any candidate shall be considered to be violation of this order and the nomination of the candidate concerned shall be liable for rejection by the Returning Officer at the time of scrutiny of nomination for such nonfurnishing of the affidavit/declaration, as the case may be. 4. The information so furnished by each candidate in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adv., Ms. J. Amritha Saryoo, Adv., Mr. Pramod Dayal, AOR, Mr. R. Nedumaran, Adv., Mr. Vinod Khanna, Adv., Mr. P. Soma Sundaram,Adv., Mr. P.V. Yogeswaran, AOR, JUDGMENT Dipak Misra, J. In a respectable and elevated constitutional democracy purity of election, probity in governance, sanctity of individual dignity, sacrosanctity of rule of law, certainty and sustenance of independence of judiciary, efficiency and acceptability of bureaucracy, credibility of institutions, integrity and respectability of those who run the institutions and prevalence of mutual deference among all the wings of the State are absolutely significant, in a way, imperative. They are not only to be treated as essential concepts and remembered as glorious precepts but also to be practised so that in the conduct of every individual they are concretely and fruitfully manifested. The crucial recognised ideal which is required to be realised is eradication of criminalisation of politics and corruption in public life. When criminality enters into the grass-root level as well as at the higher levels there is a feeling that monstrosity is likely to wither away the multitude and eventually usher in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preamble to the Notification, at the time of filing his nomination paper. One of the mandatory requirements of the disclosure was whether the candidate was accused in any pending case prior to six months of filing of the nomination of any offence punishable with imprisonment for two years or more and in which, charges have been framed or cognizance taken by a court of law. It was asserted in the petition that the appellant, who was the President of a cooperative society, on allegations of criminal breach of trust, falsification of accounts, etc., was arrayed as an accused in complaint case in Crime No. 10 of 2001. During investigation, the police found certain other facets and eventually placed eight different chargesheets, being C.C. Nos. 3, 4, 5, 6, 7, 8, 9 and 10 of 2004 before the Judicial Magistrate-IV, Coimbatore and the Magistrate had taken cognizance much before the Election Notification. Factum of taking cognizance and thereafter framing of charges in all the eight cases for the offences under Sections 120-B, 406, 408 and 477-A of the Indian Penal Code, 1860 ( IPC for short) prior to the cut-off date are not in dispute. The appellant had filed a declaration and the affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 3rd para of the petition is false and hereby denied. The averment stated that 1st respondent had deliberately omitted to provide the details of charge sheets having been filed against him which have been on file in eight cases is false and hereby denied. It is humbly submitted that this respondent has clearly mentioned about the case pending in Cr. No. 10/2001 pending before the JM No. 4 at page No. 2 in details of candidate. Therefore the above said averments are false, misleading and unsustainable. 7. The Principal District Judge of Coimbatore, the Election Tribunal, adverted to the allegations, the ocular and the documentary evidence that have been brought on record and came to hold that nomination papers filed by the appellant, the first respondent to the Election Petition, deserved to be rejected and, therefore, he could not have contested the election, and accordingly he declared the election as null and void and ordered for re-election of the post of the President in question. The said order was challenged in revision before the High Court. 8. In revision, the High Court referred to the decisions in Union of India Vs. Association for Democratic Reforms , (2002) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of criminal antecedents leading to corrupt practice under the 1951, Act, we also sought assistance of Mr. Harish N. Salve, learned senior counsel and Mr. Maninder Singh, learned Additional Solicitor General for Union of India. 10. First, we intend, as indicated earlier, to address the issue whether non-disclosure of criminal antecedents would tantamount to undue influence, which is a facet of corrupt practice as per Section 123(2) of the 1951 Act. After our advertence in that regard, we shall dwell upon the facts of the case as Ms. V. Mohana, learned counsel for the appellant has astutely highlighted certain aspects to demonstrate that there has been no suppression or non-disclosure and, therefore, the election could not have been declared null and void either by the Election Tribunal or by the High Court. Postponing the discussions on the said score, at this stage, we shall delve into the aspect of corrupt practice on the foundation of non-disclosure of criminal antecedents. 11. The issue of disclosure, declaration and filing of the affidavit in this regard has a history, albeit, a recent one. Therefore, one is bound to sit in a time-machine. In Association for Democratic R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, one-sided information, disinformation, misinformation and non-information, all equally create an uninformed citizenry which makes democracy a farce. Therefore, casting of a vote by a misinformed and non-informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions. Entertainment is implied in freedom of speech and expression and there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy. 14. In this regard, a reference was made to a passage from P.V. Narasimha Rao V. State (CBI/SPE) (1998) 4 SCC 626, jurisdiction of the Election Commission and ultimately the Court issued the following directions: The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced Section 33-A and 33-B, which are as follows:- 33-A. Right to information.-(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of Section 33, also furnish the information as to whether- (i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction; (ii) he has been convicted of an offence other than any offence referred to in sub-section (1) or subsection (2), or covered in sub-section (3), of Section 8 and sentenced to imprisonment for one year or more. (2) The candidate or 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 verifying the information specified in sub-section (1). (3) The Returning Officer shall, as soon as may be after the furnishing of information to him under sub-section (1), display the aforesaid information by affixing a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a candidate would not be bound to furnish certain information as directed by this Court. (C) The judgment rendered by this Court in Assn. for Democratic Reforms has attained finality, therefore, there is no question of interpreting constitutional provision which calls for reference under Article 145(3). (D) The contention that as there is no specific fundamental right conferred on a voter by any statutory provision to know the antecedents of a candidate, the directions given by this Court are against the statutory provisions is, on the face of it, without any substance. In an election petition challenging the validity of an election of a particular candidate, the statutory provisions would govern respective rights of the parties. However, voters fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them. Right to vote would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced. xxx xxx xxx 5) Section 33-B inserted by the Representation of the People (Third Amendment) Act, 2002 does not pass the test of constitutionality, firstly, for the reason that it imposes a blanket ban on dissemination of information other than that spelt out in the enactment irrespective of the need of the hour and the future exigencies and expedients and secondly, for the reason that the ban operates despite the fact that the disclosure of information now provided for is deficient and inadequate. (6) The right to information provided for by Parliament under Section 33-A in regard to the pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, there is no good reason for excluding the pending cases in which cognizance has been taken by the Court from the ambit of disclosure. 19. Dharmadhikari, J . in his supplementing opinion, observed thus: The reports of the advisory commissions se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the background, relief sought and Section 33A, 36 and 125A of the 1951 Act. A reference was also made to the authority in Shaligram Shrivastava V. Naresh Singh Patel (2003) 2 SCC 176. Culling out the principle from the earlier precedents, the three-Judge Bench opined: Thus, this Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament and such right to get information is universally recognized natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognized that the citizen s right to know of the candidate who represents him in the Parliament will constitute an integral part of Article 19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires . The Court posed the question whether filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1) (a) of the Constitution. (ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information. (iii) Filing of affidavit with blank particulars will render the affidavit nugatory. (iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the 'right to know' of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pers cancelled under sub-rule (1) or sub-rule (2) shall be kept in a separate packet. xxx xxx xxx 49-O. Elector deciding not to vote If an elector, after his electoral roll number has been duly entered in the register of voters in Form 17-A and has put his signature or thumb impression thereon as required under sub-rule (1) of Rule 49-L decided not to record his vote, a remark to this effect shall be made against the said entry in Form 17-A by the Presiding Officer and the signature or thumb impression of the elector shall be obtained against such remark. 25. Testing the validity of the aforesaid Rules, a three- Judge Bench in People s Union for Civil Liberties and Another V. Union of India and Another (2013) 10 SCC 1 after dwelling upon many a facet opined thus: Democracy being the basic feature of our constitutional set-up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The fair denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving the voters an opportunity to verbalise themselves unreservedly and by imposing least restrictions on their ability to make such a choice. By providing NOTA button in the EVMs, it will accelerate the effective political participation in the present state of democratic system and the voters in fact will be empowered. We are of the considered view that in bringing out this right to cast negative vote at a time when electioneering is in full swing, it will foster the purity of the electoral process and also fulfil one of its objective, namely, wide participation of people. 56. Free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion. Protection of elector s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14. Thus, secrecy is required to be maintained for both categories of persons. 57. Giving right to a voter not to vote for any candidate while protecting his right of secrecy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aling with the cause for the malaise which seems to have stricken Indian democracy in particular and Indian society in general, one of the primary reasons was identified as criminalisation of politics. The Court referred to the report of Vohra Committee and observed thus: ...In the main report, these various reports have been analysed and it is noted that the growth and spread of crime syndicates in Indian society has been pervasive. It is further observed that these criminal elements have developed an extensive network of contacts with bureaucrats, government functionaries at lower levels, politicians, media personalities, strategically located persons in the non-governmental sector and members of the judiciary; some of these criminal syndicates have international links, sometimes with foreign intelligence agencies. The Report recommended that an efficient nodal cell be set up with powers to take stringent action against crime syndicates, while ensuring that it would be immune from being exploited or influenced. In the said case, the Court further observed: We may now turn our focus to the Report and the follow-up measures that need to be implemented. The Report reveal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecently, in Manoj Narula V. Union of India (2014) 9 SCC 1, the Constitution Bench harping on the concept of systemic corruption, has been constrained to state thus: 12. It is worth saying that systemic corruption and sponsored criminalisation can corrode the fundamental core of elective democracy and, consequently, the constitutional governance. The agonised concern expressed by this Court on being moved by the conscious citizens, as is perceptible from the authorities referred to hereinabove, clearly shows that a democratic republic polity hopes and aspires to be governed by a government which is run by the elected representatives who do not have any involvement in serious criminal offences or offences relating to corruption, casteism, societal problems, affecting the sovereignty of the nation and many other offences. There are recommendations given by different committees constituted by various Governments for electoral reforms. Some of the reports that have been highlighted at the Bar are ( i ) Goswami Committee on Electoral Reforms (1990), ( ii ) Vohra Committee Report (1993), ( iii ) Indrajit Gupta Committee on State Funding of Elections (1998), ( iv ) Law Commission R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality. 35. The Constitution Bench in Subramanian Swamy V. CBI (2014) 8 SCC 682, while striking down Section 6-A of the Delhi Special Police Establishment Act, 1946, observed thus: Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences. And thereafter: Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id.- (1) Subject to the provisions of subsection (2), if the District Judge is of opinion- (a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act, or, (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent, or (c) that any nomination paper has been improperly rejected, or (d) that the result of the election insofar as it concerns a returned candidate has been materially affected- (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his agent or a person acting with the consent of such candidate or agent, or (iii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or (iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the Court shall declare the election of the returned candidate to be void. 38. Section 260 deals with corrupt practices. Sub-Sections (1) and (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight is thus not something that can be ossified it must evolve with the constitutional jurisprudence and be judged by contemporary constitutional values. B. The disclosure by a candidate of his character antecedents was premised by this Court on the right of an elector to know which right flows from the right to the informed exercise of an electoral right. C. Section 123(2) of the 1951 Act necessarily implies that any influence on the mind of the voter that interferes with a free exercise of the electoral right is a corrupt practice. Misleading voters as to character antecedents of a candidate in contemporary times is a serious interference with the free exercise of a voter s right. D. In the context of disclosure of information, if the falsity or suppression of information relating to the criminal antecedents of a candidate is serious enough to mislead voters as to his character, it would clearly influence a voter in favour of a candidate. This Court should take judicial notice of the problem of criminalization of politics which led this Court to ask Parliament to seriously consider ameliorative changes to the law. E. Section 123 of the 1951 Act defines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. V. Mohana, learned counsel for the appellant would submit that the High Court has fallen into error by treating it as a corrupt practice. It is her submission that as a matter of fact, there has been no non-disclosure because the appellant had stated about the crime number, and all other cases are ancillary to the same and, in a way, connected and, therefore, non-mentioning of the same would not bring his case in the arena of non-disclosure. That apart, learned counsel would contend that the appellant has read upto Class X and he had thought as the other cases were ancillary to the principal one, and basically offshoots, they need not be stated and, therefore, in the absence of any intention, the concept of undue influence cannot be attracted. Learned counsel would urge that though there was assertion of the registration of cases and cognizance being taken in respect of the offences, yet the allegation of corrupt practices having not mentioned, the election could not have been set aside. To buttress her submissions, she has commended us to the decisions in Mahadeo V. Babu Udai Pratap Singh Ors. AIR 1966 SC 824 , Baburao Patel Ors. V. Dr. Zakir Hussain Ors. AIR 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. If the religious head had said that he preferred the appellant to the other candidate, because, in his opinion, he was more worthy of the confidence of the electors for certain reasons good, bad or indifferent, and addressed words to that effect to persons who were amenable to his influence, he would be within his rights, and his influence, however great, could not be said to have been misused. But in the instant case, as it appears, according to the findings of the High Court, in agreement with the Tribunal, that the religious leader practically left no free choice to the Namdhari electors, not only by issuing the hukam or farman, as contained in Exh. P-1, quoted above, but also by his speeches, to the effect that they must vote for the appellant, implying that disobedience of his mandate would carry divine displeasure or spiritual censure, the case is clearly brought within the purview of the second paragraph of the proviso to Section 123(2) of the Act. In view of the aforesaid analysis, the Court dismissed the appeal and affirmed the decision of the High Court whereby it had given the stamp of approval to the order of Election Tribunal setting aside the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undue influence may arise. But so long as the Minister only asks the electors to vote for a particular candidate belonging to his party and puts forward before the public the merits of his candidate it cannot be said that by merely making such request to the electorate the Minister exercises undue influence. The fact that the Minister's request was addressed in the form of what is called a whip, is also immaterial so long as it is clear that there is no compulsion on the electorate to vote in the manner indicated. 47. In S.K. Singh V. V.V. Giri (1970) 2 SCC 567, the majority while interpreting Section 18 of the Presidential and Vice- Presidential Elections Act, 1952 (for short, the 1952 Act ) in the context of Section 171-C I.P.C., expressed thus: ..... In our opinion, if distribution of the pamphlet by post to electors or in the Central Hall is proved it would constitute undue influence within Section 18 and it is not necessary for the petitioners to go further and prove that statements contained in the pamphlet were made the subject of a verbal appeal or persuasion by one member of the electoral college to another and particularly to those in the Congress fold. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the provisions of sub-section (1) . It is well settled that when this expression is used anything contained in the provisions following this expression is not intended to cut down the generality of the meaning of the preceding provision. This was so held by the Privy Council in King-Emperor v. Sibnath Banerj AIR 1945 PC 156. After so stating, the Court proceeded to lay down as follows:- It follows from this that we have to look at subsection (1) as it is without restricting its provisions by what is contained in sub-section (2). Subsection (3) throws a great deal of light on this question. It proceeds on the assumption that a declaration of public policy or a promise of public action or the mere exercise of a legal right can interfere with an electoral right, and therefore it provides that if there is no intention to interfere with the electoral right it shall not be deemed to be interference within the meaning of this section. At what stage would a declaration of public policy or a promise of public action act and tend to interfere? Surely only at the stage when a voter is trying to make up his mind as to which candidate he would support. If a declaration of pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... threats of injury to person or property and all illegal methods of persuasion, and any interference with the liberty of the candidates or the electors . The Legislature has wisely refrained from defining the forms interference may take. The ingenuity of the human mind is unlimited and perforce the nature of interference must also be unlimited. [Emphasis supplied] 48. In Bachan Singh V. Prithvi Singh (1975) 1 SCC 368, there was a publication of posters bearing the caption Pillars of Victory with photographs of the Prime Minister, Defense Minister and Foreign Minister. It was contended before this Court that the publication of the poster not only amounted to the exercise of undue influence within the contemplation of Section 123(2) but also constituted an attempt to obtain or procure assistance from the members of the armed forces of the Union for furtherance of the prospects of returned candidate s election within the purview of Section 123(7). The Court, treating the contention as unsustainable held thus: Doubtless the definition of undue influence in sub-section (2) of Section 123 is couched in very wide terms, and on first flush seems to cover every conceiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts, or threatens to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting. A person is also guilty of undue influence if, by abduction, duress or any fraudulent device or contrivance, he impedes or prevents the free exercise of the franchise of an elector or proxy for an elector, or thereby compels, induces or prevails upon an elector or proxy for an elector either to vote or to refrain from voting. It will be seen that the English law on the subject has the same object as the relevant provisions of Section 123 of our Act. But, the provisions of Section 123(2), (3) and (3-A) seem wider in scope and also contain specific mention of what may be construed as undue influence viewed in the background of our political history and the special conditions which have prevailed in this country. We have to determine the effect of statements prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passage from Om Prakash Ors. V. Union of India Ors . (1970) 3 SCC 942 It is therefore contended relying on sub-section (2) that inasmuch as no fraud or false representation or concealment of any material fact has been alleged or proved in this case, the Chief Settlement Commissioner cannot exercise the revisionary power under Section 24. This contention in our view has no validity. It is a well established proposition of law that where a specific power is conferred without prejudice to the generality of the general powers already specified, the particular power is only illustrative and does not in any way restrict the general power. The Federal Court had in Talpade s case indicated the contrary but the Privy Council in King Emperor v. Sibnath Banerjee Indian Appeals Vol. 72 p. 241 observed at page 258: Their Lordships are unable to agree with the learned Chief Justice of the Federal Court on his statement of the relative positions of subsections (1) and (2) of Section 2 of the Defence of India Act, and counsel for the respondents in the present appeal was unable to support that statement, or to maintain that Rule 26 was invalid. In the opinion of Their Lords ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of undue influence applies at both the stages, namely, pre-voting and at the time of casting of vote. (xi) Undue influence is not to be equated with proper influence and, therefore, legitimate canvassing is permissible in a democratic set up. (xii) Free exercise of electoral right has a nexus with direct or indirect interference or attempt to interfere. 54. The aforesaid principles are required to be appreciated regard being had to the progression of the election law, the contemporaneous situation, the prevalent scenario and the statutory content. We are absolutely conscious, the right to contest an election is neither a fundamental right nor a common law right. Dealing with the constitutional validity of Sections 175(1) and 177(1) of the Haryana Panchayati Raj Act, 1994, the three-Judge Bench in Javed V. State of Haryana (2003) 8 SCC 369 opined thus: Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right - a right originating in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 57. As is clear from the provision, if the corrupt practice is proven, the Election Tribunal or the High Court is bound to declare the election of the returned candidate to be void. The said view has been laid down in M. Narayan Rao V. G. Venkata Reddy Others (1977) 1 SCC 771 and Harminder Singh Jassi (supra). 58. At this juncture, it is necessary to elucidate on one essential aspect. Section 100(1)(d)(ii) stipulates that where the High Court is of the opinion that the result of the election has been materially affected by any corrupt practice, committed in the interest of the returned candidate by an agent, other than his election agent, the High Court shall declare the election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterests of the returned candidate by an agent other than his election agent (without the further requirement of the ingredient of consent of a returned candidate or his election agent) is a ground for declaring the election to be void only when it is further pleaded and proved that the result of the election insofar as it concerns a returned candidate has been materially affected. 61. The distinction between the two provisions, as has been explained by this Court is of immense significance. If the corrupt practice, as envisaged under Section 100(1)(b) is established, the election has to be declared void. No other condition is attached to it. Keeping this in view, we are required to advert to the fundamental issue whether nondisclosure of criminal antecedents, as has been stipulated under Section 33A and the Rules framed under the 1951 Act, would tantamount to corrupt practice and if so, how is it to be proven. We have already referred to the facet of undue influence in some decisions of this Court. Emphasis has been laid by Mr. Salve, learned amicus curiae, on influence on the mind of the voter that interferes with the free exercise of the electoral right and how such non-disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the First Schedule to the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, and from the electoral rules which have been in force since 1921. The said Chapter IX-A also contains provisions for punishment for false statements and for illegal payments in connection with an election and for failure to keep election accounts. It has, therefore, been considered necessary to include in this Bill any provision for the corrupt practices and other electoral offences already dealt with in the Indian Penal Code. Further, it would not be possible to omit those provisions from the Indian Penal Code and include them in this Bill, as they apply not only in relation to an election in Parliament, or to the Legislature of a State, but also to every other kind of election, such as, election to Municipalities, District Boards and other local authorities. Accordingly, only provisions with regard to certain other electoral offences have been included in these clauses. 63. In Shiv Kripal Singh (supra), as has been stated earlier, the Court had referred to the objects and reasons attached to the Bill, which ultimately resulted in enactment of Chapt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interference or attempt at interference with the free exercise of any electoral right begins. That is a matter to be determined in each case; but there can be no doubt that if what is done is merely canvassing it would not be undue influence. As sub-section (3) of s. 171-C shows, the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence. 66. Regard being had to the aforesaid position of law and the meaning given under Section 123(2) of the 1951 Act to undue influence , we may refer to Section 33-A of the 1951 Act. Section 33-A of the 1951 Act, which has been introduced w.e.f. 24.08.2002, requires a candidate to furnish the information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which charge has been framed by the court of competent jurisdiction. Sub-Section 2 of Section 33-A of the 1951 Act requires the candidate or his proposer, as the case maybe, at the time of delivery to the Returning Officer an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-Section (1). It need no special emphasis to state that g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fe custody of ballot boxes, voting machines, ballot papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers; (hh) the material to be supplied by the Government to the candidates of recognised political parties at any election to be held for the purposes of constituting the House of the People or the Legislative Assembly of a State;. (i) any other matter required to be prescribed by this Act. 68. Rule 4A has been inserted in Conduct of Election Rules, 1961 ( for short, 1961 Rules) w.e.f. 3.9.2002. Rule 4A reads as follows: 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 sub-section (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. As per the aforesaid Rule, the affidavit is required to be filed in Form 26. For the present purpose, the relevant part is as follows:- FORM 26 (See rule 4A) Affidavit to be filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) Name of the Court, Case No. and date of order(s): (c) Punishment imposed d) Whether any appeal was/has been filed against the conviction order. If so, details and the present status of the appeal: 69. On a perusal of the aforesaid format, it is clear as crystal that the details of certain categories of offences in respect of which cognizance has been taken or charges have been framed must be given/furnished. This Rule is in consonance with Section 33-A of the 1951 Act. Section 33(1) envisages that information has to be given in accordance with the Rules. This is in addition to the information to be provided as per Section 33(1) (i) and (ii). The affidavit that is required to be filed by the candidate stipulates mentioning of cases pending against the candidate in which charges have been framed by the Court for offences punishable with imprisonment for two years or more and also the cases which are pending against him in which cognizance has been taken by the court other than the cases whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph has been explained thus: The aforesaid paragraph, no doubt, stresses on the importance of filing of affidavit, however, opines that the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary inquiry at the time of scrutiny of the nominations cannot be justified since in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. This Court was of the opinion that if sufficient time is provided, the candidate may be in a position to produce proof to contradict the objector's version. The object behind penning down the aforesaid reasoning is to accommodate genuine situation where the candidate is trapped by false allegations and is unable to rebut the allegation within a short time. Para 73 of the aforesaid judgment nowhere contemplates a situation where it bars the Returning Officer to reject the nomination paper on account of filing affidavit with particulars left blank. Therefore, we hereby clarify that the above said paragraph will not come in the way of the Returning Officer to reject the nomination pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and past performance of the candidate. The voter has the choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in a criminal case. For maintaining purity of elections and a healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided - its result, if pending - whether charge is framed or cognizance is taken by the court. There is no necessity of suppressing the relevant facts from the voters. [Emphasis supplied] 72. In People s Union for Civil Liberties (NOTA case) , (supra), emphasis has been laid on free and fair elections and it has been opined that for democracy to survive, it is fundamental that the best available man should be chosen as the people s representative for proper governance of the country and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, questioning the election on the ground of practising corrupt practice by the elected candidate on the foundation that he has not fully disclosed the criminal cases pending against him, as required under the Act and the Rules and the affidavit that has been filed before the Returning Officer is false and reflects total suppression, whether such a ground would be sustainable on the foundation of undue influence. We may give an example at this stage. A candidate filing his nomination paper while giving information swears an affidavit and produces before the Returning Officer stating that he has been involved in a case under Section 354 IPC and does not say anything else though cognizance has been taken or charges have been framed for the offences under Prevention of Corruption Act, 1988 or offences pertaining to rape, murder, dacoity, smuggling, land grabbing, local enactments like MCOCA, U.P. Goonda Act, embezzlement, attempt to murder or any other offence which may come within the compartment of serious or heinous offences or corruption or moral turpitude. It is apt to note here that when an FIR is filed a person filling a nomination paper may not be aware of lodgement of the FI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation are the essential features of good governance which in turn depends upon persons of competency and good character . 78. From the aforesaid, it is luculent that free exercise of any electoral right is paramount. If there is any direct or indirect interference or attempt to interfere on the part of the candidate, it amounts to undue influence. Free exercise of the electoral right after the recent pronouncements of this Court and the amendment of the provisions are to be perceived regard being had to the purity of election and probity in public life which have their hallowedness. A voter is entitled to have an informed choice. A voter who is not satisfied with any of the candidates, as has been held in People s Union for Civil Liberties (NOTA case) , can opt not to vote for any candidate. The requirement of a disclosure, especially the criminal antecedents, enables a voter to have an informed and instructed choice. If a voter is denied of the acquaintance to the information and deprived of the condition to be apprised of the entire gamut of criminal antecedents relating to heinous or serious offences or offence of corruption or moral turpitude, the exercise of electoral ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir representative. 3. The Commission has directed that, at every election, press release should be issued at the State and District level stating that affidavits of the candidates are available for the electors to see and clearly mentioning in the Press release of the DEO place (s) at which copies of the affidavits have been displayed. The press release should also make it clear that the affidavits can also be viewed on the website, and the path to locate them on the website should also be mentioned. 4. Please bring these instructions to the notice of all DEOs, ROs and other authorities concerned for compliance in future elections. Yours faithfully, (K.F. WILFRED) PRINCIPAL SECRETARY 80. In continuation, some further instructions were issued on 12.10.2012. The relevant paragraph is reproduced as follows: Now the Commission has reviewed the above instruction and has decided that the affidavit filed by all candidates, whether set up by the recognized political parties or unrecognized political parties or independents shall be put up on the website soon after the candidates file same and within 24 hours in any event. Even if any candidate withdraws his candidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit in Form 26, in different public officers in the constituency. 3. The Commission after due consideration of the matter has decided that for wider dissemination of information, apart from existing mode of dissemination of information, as mentioned in para I above, the Abstract Part-II of the affidavit (given in part B of Form 26) filed by the contesting candidates shall be displayed at specified additional public offices, such as (I) Collectorate, (20) Zila Parishad Office (3) SDM Office (4) Panchayat Samiti office (i.e. Block Office) (5) office of Municipal Body or bodies in the constituency (6) Tahsil/Taluka office and (7) Panchayat Office. This shall be done within 5 days of the date of withdrawal of candidature. In the Collectorate and Zila Parishad Office, abstracts of affidavits of all candidates in all constituencies in the District shall be displayed. Abstracts of one constituency should be displayed together and not in scattered manner. Similarly, if there are more than one constituency in a Sub-Division, all abstracts of all candidates in such constituencies shall be displayed in SDM s office. Kindly convey these directions to all DEOs, ROs, SDMs etc. for elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in paragraph-5 of the preamble, in an Affidavit or Declaration, as the case may be, in the format annexed hereto:- Provided that having regard to the difficulties in swearing an affidavit in a village, a candidate at the election to a Ward Member of Village Panchayat under the Tamil Nadu Panchayats Act, 1994 shall, instead of filing an Affidavit, file before the Returning Officer a declaration in the same format annexed to this order: 2. The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State or before an Officer competent for swearing an affidavit. 3. Non-furnishing of the affidavit or declaration, as the case, may be, by any candidate shall be considered to be violation of this order and the nomination of the candidate concerned shall be liable for rejection by the Returning Officer at the time of scrutiny of nomination for such nonfurnishing of the affidavit/declaration, as the case may be. 4. The information so furnished by each candidate in the aforesaid affidavit or declaration as the case may be, shall be disseminated by the respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diment in the free exercise of electoral right. (c) Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate. (d) As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1)(b) of the 1951 Act. (e) The question whether it materially affects the election or not will not arise in a case of this nature. 87. Before parting with the case, we must put on record our unreserved appreciation for the valuable assistance rendered by Mr. Harish N. Salve, learned senior counsel and Mr. Maninder Singh, learned Additional Solicitor General for Union of India. 88. Ex consequenti, the appeal, being sans substance, stands dismissed with costs, which is assessed at ₹ 50,000/-. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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