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Krishnamoorthy Versus Sivakumar and Ors.

2015 (2) TMI 1248 - SUPREME COURT OF INDIA

Null and void election - non-disclosure of full particulars of criminal cases pending against a candidate, at the time of filing of nomination and its eventual impact when the election is challenged before the election tribunal - 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 a .....

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hayat or 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 .....

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l 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 respective Returning Officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available to all other candidate on demand and to t .....

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ered to the candidates along with the forms of nomination papers as part of the nomination papers. - As reproduced the information that is required to be given. Sections 259 and 260 of the 1994 Act makes the provisions contained under Section 123 of the 1951 Act applicable. Submission of Ms. V. Mohana, learned counsel for the appellant is that there was no challenge on the ground of corrupt practice. As we find the election was sought to be assailed on many a ground. The factum of suppressi .....

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case or off-shoots of the main case. The aforesaid submission is noted to be rejected. Therefore, we are of the view that the High Court is justified in declaring that the election as null and void on the ground of corrupt practice. - CIVIL APPEAL NO.1478 OF 2015, (@ SLP(C) NO. 14918 OF 2009) - Dated:- 5-2-2015 - Dipak Misra and Prafulla C. Pant, JJ. For The Appellant : Ms. V. Mohana, AOR For The Respondent : Mr. Subramonium Prasad, AAG, T.N., Mr. B. Balaji, AOR, Mr. R. Rakesh Sharma, Adv., Ms. .....

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f 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 idea .....

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the hopes, aspirations and values of tomorrow s generation and contaminate them with the idea to pave the path of the past, possibly thinking, that is the noble tradition and corruption can be a way of life and one can get away with it by a well decorated exterior. But, an intervening and pregnant one, there is a great protector, and an unforgiving one, on certain occasions and some situations, to interdict - The law , the mightiest sovereign in a civilised society. 2. The preclude, we are dispo .....

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law in all spheres. 3. The instant case is a case of non-disclosure of full particulars of criminal cases pending against a candidate, at the time of filing of nomination and its eventual impact when the election is challenged before the election tribunal. As the factual score is exposited the appellant was elected as the President of Thekampatti Panchayat, Mettupalayam Taluk, Coimbatore District in the State of Tamil Nadu in the elections held for the said purpose on 13.10.2006. The validity o .....

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y candidate desiring to contest an election to a local body, was required to furnish full and complete information in regard to five categories referred to in paragraph five of the 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 .....

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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 affidavit only mentioning Crime No 10 of 2001 and did not mention the details of the chargesheets filed against him which were .....

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IPC 6/2004 04. 6/2004 05. 7/2004 06. U/s 120 (b) r/w 408, 406 477 A IPC 8/2004 07. 9/2005 08. 10/2004 5. After asseverating certain other facts, it was pleaded that the 1st respondent had deliberately suppressed material facts which if declared would enable his nomination papers being rejected. That apart, emphasis was laid on the fact that the elected candidate had not declared the particulars regarding the criminal cases pending against him. 6. In this backdrop, the election of the first resp .....

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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 Ju .....

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vision before the High Court. 8. In revision, the High Court referred to the decisions in Union of India Vs. Association for Democratic Reforms, (2002) 5 SCC 294 People s Union for Civil Liberties (PUCL) & Another V. Union of India and Another (2003) 4 SCC 399, Notification issued by the Election Commission of India and the Notification of the State Election Commission, Sections 259 and 260 of the 1994 Act and adverted to the issues whether there was suppression by the elected candidate and .....

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ed candidate had not disclosed the full and complete information. Thereafter, the High Court referred to the authority in Association for Democratic Reforms (supra), incorporation of Sections 33A and 44A in the 1951 Act, Rule 4A of the Conduct of Election Rules, 1961 and Form 26 to the said Rules, Section 125A of the 1951 Act, the definition of Affidavit as per Section 3(3) of the General Clauses Act, 1897, the conceptual meaning of Oath, Section 8 of The Oaths Act, 1969 and scanned the anatomy .....

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greed with the ultimate conclusion of the tribunal though for a different reason. 9. We have heard Ms. V. Mohana, learned counsel for the appellant, Mr. Subramonium Prasad, learned AAG for the State Election Commission, Mr. R. Anand Padmanabhan, learned counsel for the respondent No.1 and Mr. R. Neduamaran, learned counsel for the respondent no.2. Regard being had to the impact it would have on the principle relating to corrupt practice in all election matters as interpretation of the words undu .....

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tence 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 o .....

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hether, before casting votes, voters have a right to know relevant particulars of their candidates? Further connected question is - whether the High Court had jurisdiction to issue directions, as stated below, in a writ petition filed under Article 226 of the Constitution of India? 12. To answer the said question, it referred to the authorities in Vineet Narain V. Union of India (1998) 1 SCC 226, Kihoto Hollohan V. Zachillhu 1992 Supp (2) SCC 651 and opined that in case when the Act or Rules are .....

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tate vests in the Election Commission; and the phrase conduct of elections is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections. 13. After so holding, the Court posed a question whether the Election Commission is empowered to issue directions. Be it noted, such a direction was ordered by the High Court of Delhi and in that context the Court relied upon Mohinder Singh Gill V. Chief Election Commissioner (1978) 1 SCC 405, .....

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and fair election, without free and fairly informed voters. Votes cast by uninformed 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 s .....

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(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 Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature: .....

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and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues. (5) The educational qualifications of the candidate. 15. After the said decision was rendered, The Representation of the People (Amendment) Ordinance, 2002, 4 of 2002 was promulgated by the President of India on 24.8.2002 and the validity of the same was called in question under Article 32 of the Constitution of India. The thre .....

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s acquired the wealth by unjustified means? Maybe, that he is acquitted because the investigating officer failed to unearth the truth or because the witnesses turned hostile. In some cases, apprehending danger to their life, witnesses fail to reveal what was seen by them. And again Is there any necessity of permitting candidates or their supporters to use unaccounted money during elections? It assets are declared, would it no amount to having some control on unaccounted elections expenditure? 16 .....

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nment 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, .....

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33-B. Candidate to furnish information only under the Act and the rules.-Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder. 17. Though various issues were raised in the said case, yet we a .....

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eclaration that an order made by a court of law is void is normally a part of the judicial function. The legislature cannot declare that decision rendered by the Court is not binding or is of no effect. It is true that the legislature is entitled to change the law with retrospective effect which forms the basis of a judicial decision. This exercise of power is subject to constitutional provision, therefore, it cannot enact a law which is violative of fundamental right. (B) Section 33-B which pro .....

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or various reasons recorded in the earlier judgment as well as in this judgment. The Amended Act does not wholly cover the directions issued by this Court. On the contrary, it provides that a candidate would not be bound to furnish certain information as directed by this Court. (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) T .....

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te 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 meaningless unless the citizens are well informed about the antecedents of a candidate. There can be little doubt that ex .....

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de, it has been so done by this Court consistently. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by this Court. Being of this view, he declared Section 33-B as illegal, null and void. 18. P. Venkatarama Reddi, J. adverted to freedom of expression and right to information in the context of voters right to know the details of contesting candidates and right of th .....

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rticle 19(1) (a). This right to information is, however, qualitatively different from the right to get information about public affairs or the right to receive information through the press and electronic media, though, to a certain extent, there may be overlapping. xxx xxx xxx (3) The directives given by this Court in Union of India v. Assn. for Democratic Reforms were intended to operate only till the law was made by the legislature and in that sense pro tempore in nature. Once legislation is .....

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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 S .....

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n made by Brother Shah, J., highlight the present political scenario where money power and muscle power have substantially polluted and perverted the democratic processes in India. To control the illeffects of money power and muscle power the commissions recommend that election system should be overhauled and drastically changed lest democracy would become a teasing illusion to common citizens of this country. Not only a halfhearted attempt in the direction of reform of the election system is to .....

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ion is distinct from exercise of his right as a voter which is to be regulated by statutory law on the election like the RP Act. 20. The purpose of referring to the aforesaid authorities in extenso is to focus how this Court has given emphasis on the rights of a voter to know about the antecedents of a candidate, especially, the criminal antecedents, contesting the election. With the efflux of time, the Court in subsequent decisions has further elaborated the right to know in the context of elec .....

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ms (supra), People s Union for Civil Liberties (PUCL) (supra) and also to direct the respondents therein to make it compulsory for the Returning Officers to ensure that the affidavits filed by the contestants are complete in all respects and to reject the affidavits having blank particulars. The Court referred to 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. Cu .....

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g 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 fil .....

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of their voting and, therefore, when a candidate files an affidavit with blank particulars at the time of filing of the nomination paper, it renders the affidavit itself nugatory. 21. It is apt to note here that the Court referred to paragraph 73 of the judgment in People s Union for Civil Liberties (PUCL) (supra) case and elaborating further ruled thus: If we accept the contention raised by Union of India, viz., the candidate who has filed an affidavit with false information as well as the cand .....

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the Election Commission accepts the nomination papers in spite of blank particulars in the affidavits, it will directly violate the fundamental right of the citizen to know the criminal antecedents, assets and liabilities and educational qualification of the candidate. Therefore, accepting affidavit with blank particulars from the candidate will rescind the verdict in Association for Democratic Reforms (supra). Further, the subsequent act of prosecuting the candidate under Section 125A(i) will .....

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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 .....

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e rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced. (v) We clarify to the extent that Para 73 of People's Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars. (vi) The candidate must take the minimum effort to explicitly remar .....

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t all levels. Fear, compels a man to take the abysmal and unfathomable route; whereas courage, mother of all virtues, not only shatters fears, but atrophies all that come in its way without any justification and paralyses everything that does not deserve to have locomotion. Democracy nurtures and dearly welcomes transparency. Many a cobweb is woven or endeavoured to be woven to keep at bay what sometimes becomes troublesome. Therefore, Rules 41(2) and (3) and 49-O of the Conduct of Election Rule .....

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28 of the 1951 Act and Rules 39, 49-M of the Rules. Relevant parts of Rule 41 and Rule 49-O read as follows: 41. Spoilt and returned ballot papers - (1) ……. (2) If an elector after obtaining a ballot paper decides not to use it, he shall return it to the Presiding Officer, and the ballot paper so returned and the counterfoil of such ballot paper shall be marked as Returned: cancelled by the Presiding Officer. (3) All ballot papers cancelled under sub-rule (1) or sub-rule (2) shall .....

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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 o .....

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n opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting. 26. Ultimately, the Court declared Rules 41(2) and (3) and Rule 49-O of the Rules as ultra vires the Section 128 of the 1951 Act and Article 19(1)(a) of the Constitution to the extent they violate the secrecy of voting and accordingly directed the Election Commission to provide necessary provision .....

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, J. in People s Union of Civil Liberties (supra) that the voter s fundamental right to know the antecedents of a candidate is independent of statutory requirement under the election law, for a voter is first a citizen of this country and apart from statutory rights, he has the fundamental right to know and be informed. Such a right to know is conferred by the Constitution. 28. Speaking about the concept of voting, this Court in Lily Thomas V. Speaker of Lok Sabha (1993) 4 SCC 234 , has ruled th .....

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g 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 proces .....

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f 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 is extremely important in a democracy. Such an option gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realise that a large number of people are expressing their disapproval with the candidates being put .....

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ng would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate thinks about them. 30. Having stated about the choice of a voter, as is requisite in the case at hand, we are required to dwell upon the failure to disclose the criminal cases pending against a candidate and its eventual impact; whether it would come within the concept of undue influence and thereby corrupt practice as per Section 123(2) of the 195 .....

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m Jethmalani V. Union of India (2011) 8 SCC 1 and State of Maharahtra V. Saeed Sohail Sheikh (2012) 13 SCC 192. 31. In a constitutional democracy, we are disposed to think that any kind of criminalisation of politics is an extremely lamentable situation. It is an anathema to the sanctity of democracy. The criminalisation creates a concavity in the heart of democracy and has the potentiality to paralyse, comatose and strangulate the purity of the system. In Dinesh Trivedi V. Union of India (1997) .....

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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 .....

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which are increasingly being felt on various aspects of social life in India. Indeed, the situation has worsened to such an extent that the President of our country felt constrained to make references to the phenomenon in his Addresses to the Nation on the eve of the Republic Day in 1996 as well as in 1997. 32. In Anukul Chandra Pradhan V. Union of India and others (1997) 6 SCC 1, the Court was dealing with the provisions made in the election law which excluded persons with criminal background a .....

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the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, there .....

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arved out to exclude a person subjected to preventive detention under any law for the time being in force. 33. Recently, 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 C .....

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onstituted 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 Report on Reforms of the Electoral Laws (1999), (v) National Commission to Review the Working of the Constitution (2001), (vi) Election Commission of India - Proposed Electoral Reforms (2004), (vii) the Se .....

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f the 1951 Act should be amended to cover, inter alia, the offences listed in the proposed Schedule 1 and a provision should be engrafted that a person in respect of whose acts or omissions a court of competent jurisdiction has taken cognizance under Sections 190(1)(a), (b) or (c) of the Code of Criminal Procedure or who has been convicted by a court of competent jurisdiction with respect to the offences specified in the proposed expanded list of offences under Section 8(1) shall be disqualified .....

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and as a silent, deaf and mute spectator to the corruption either being helpless or being resigned to fate. Commenting on corruption, the court in Niranjan Hemchandra Sashittal V. State of Maharashtra (2013) 4 SCC 642, was constrained to say thus: It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the in .....

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le 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 c .....

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down by the same process of inquiry and investigation. 36. In this backdrop, we have looked and posed the question that whether a candidate who does not disclose the criminal cases in respect of heinous or serious offences or moral turpitude or corruption pending against him would tantamount to undue influence and as a fallout to corrupt practice. The issue is important, for misinformation nullifies and countermands the very basis and foundation of voter s exercise of choice and that eventually .....

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other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right: Provided thatPage (a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who- (i) threatens any candidate or any elector, or any person in whom a candidate or an elector interest, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or (ii) induces or attempt .....

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be interference within the meaning of this clause. 37. Section 259 of the 1994 Act deals with grounds for declaring elections to be void. Section 259(1) is as follows: 259. Grounds for declaring elections to be void.- (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 .....

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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) of Section 260 read as follows: 260. Corrupt practices - The following shall be deemed to be corrupt practice for .....

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the time of filing nomination paper and for the said purpose, the Returning Officer can compel the candidate to furnish the relevant information and if a candidate, as has been held in Resurgence India (supra), files an affidavit with a blank particulars would render the affidavit nugatory. As has been held in the said judgment if a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is liable to be rejected. It has been further directed in t .....

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ed. But, once he fills up the column with some particulars and deliberately does not fill up other relevant particulars, especially, pertaining to the pendency of criminal cases against him where cognizance has been taken has to be in a different sphere. 40. Mr. Harish Salve, learned senior counsel, who was requested to assist the Court, would unequivocally submit that it would come within the arena of corrupt practice. The propositions that have been presented by the learned Amicus Curiae are a .....

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he 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 th .....

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electoral right. This result, i.e., interference with the free exercise of an electoral right, may apply to a person or a body of persons. As clarified in Ram Dial v. Sant Lal, (1959) 2 SCR 748, Section 123 does not emphasise the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause. F. It is not every failure to disclose information that would constitute an undue influence. In th .....

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Curiae has commended us to certain paragraphs from Association for Democratic Reforms (supra), People s Union for Civil Liberties (PUCL) (supra) and Manoj Narula (supra). 41. Mr. Maninder Singh, learned Additional Solicitor General, who was requested to assist us, has submitted that to sustain the paradigms of constitutional governance, it is obligatory on the part of the candidate to strictly state about the criminal cases pending against him, especially, in respect of the offences which are h .....

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ence is by the candidate himself, it would fall in the compartment of corrupt practice. 42. Mr. Subramonium Prasad, learned AAG for the State of Tamil Nadu and learned counsel for private respondents have supported the contentions raised by Mr. Harish Salve and Mr. Maninder Singh. 43. 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-dis .....

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ept 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 1968 SC 904, J .....

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ch distinguished the words of English Law relating to undue influence by stating that the words of the English statute lay emphasis upon the individual aspect of the exercise of undue influence. Thereafter, the Court proceeded to state about the undue influence under the Indian law by observing thus: …The Indian law, on the other hand, does not emphasize the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about .....

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that a religious leader has as much the right to freedom of speech as any other citizen and, that, therefore, exhortation in favour of a particular candidate should not have the result of vitiating the election. Elaborating further, it has been held: ......... the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates .....

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nce 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 co .....

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on Tribunal setting aside the appellants election. 45. In Baburao Patel (supra), the Court while dealing with the challenge to the Presidential Election, addressed to the issue pertaining to undue influence. The Court observed: We may in this connection refer to Section 123(2) of the Representation of the People Act 1951 which also defines undue influence . The definition there is more or less in the same language as in Section 171-C of the Indian Penal Code except that the words direct or indir .....

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by issuing a whip on the day of election requesting the members to cast their preference in a particular order, the leader of a party exercises undue influence and the answer was given in the negative. A reference was made to Linge Gowda V. Shivananjappa (1953) 6 Ele LR 288 (Ele. Tri Bangalore), wherein it has been held that a leader of a political party was entitled to declare the public the policy of the party and ask the electorate to vote for his party without interfering with any electoral .....

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inisters to canvass for candidates of their party standing for election. Such canvassing does not amount to undue influence but is proper use of the Minister's right to ask the public to support candidates belonging to the Minister's party. It is only where a Minister abuses his position as such and goes beyond merely asking for support for candidates belonging to his party that a question of undue influence may arise. But so long as the Minister only asks the electors to vote for a part .....

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rpreting 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 m .....

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of Section 171-C suggests that undue influence comes in at the second and not at the first stage, and therefore, it can only be by way of some act which impedes or obstructs the elector in his freely casting the vote, and not in any act which precedes the second stage i.e. during the stage when he is making his choice of the candidate whom he would support. This argument was sought to be buttressed by the fact that canvassing is permissible during the first stage, and, therefore, the interferen .....

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ce, and that under influence can only mean some act by way of threat or fear or some adverse consequence administered at the time of casting the vote. Repelling the said contention, the Court held thus: We do not think that the Legislature, while framing Chapter IX-A of the Code ever contemplated such a dichotomy or intended to give such a narrow meaning to the freedom of franchise essential in a representative system of Government. In our opinion the argument mentioned above is fallacious. It c .....

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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 .....

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tion 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 public policy or a promise of public action appeals to him, his mind would decide in favour of the candidate who is propounding the public policy or promising a public action. Having made up his mind he would then go and vote and the declaration of public policy having had its effect it would no longer have any effect on the physical fina .....

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electors. This exercise of the right by a candidate or his supporters to canvass support does not interfere or attempt to interfere with the free exercise of the electoral right. What does, however, attempt to interfere with the free exercise of an electoral right is, if we may use the expression, tyranny over the mind . If the contention of the respondent is to be accepted, it would be quite legitimate on the part of a candidate or his supporter to hypnotise a voter and then send him to vote. .....

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fear or intimidation. Law of Elections and Election Petitions - Nanak Chand - 1950 Edn., p. 263 We are supported in this view by the statement of Objects and Reasons attached to the bill which ultimately resulted in the enactment of Chapter IX-A. That statement explains in clear language that undue influence was intended to mean voluntary interference or attempted interference with the right of any person to stand or not to stand as or withdraw from being a candidate or to vote or refrain from v .....

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aring 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). .....

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e by recounting the glories and achievements of that candidate or his political party in administrative or political field, does meddle with and mould the independent volition of electors, having poor reason and little education, in the exercise of their franchise. That such a wide construction would not be in consonance with the intendment of the legislature is discernible from the proviso to this clause. The proviso illustrates that ordinarily interference with the free exercise of electoral r .....

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reason and judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate. Indeed, such proper and peaceful persuasion is the motive force of our democratic process. We are unable to appreciate how the publication of this poster interfered or was calculated to interfere with the free exercise of the electoral right of any person. There was nothing in it which amounted to a threat of injury or undue inducement of the kind inhibited by Section 123(2). 49. .....

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223-24(para 387): A person is guilty of undue influence, if he directly or indirectly, 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 .....

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(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 proved to have been made by a candidate, or, on his behalf and with his consent, during his election, upon the minds and feelings of the ordinary average voters of this country in every case of alleged corrupt practice of undu .....

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d is religion, which is put on the same footing as race, caste, or language as an objectionable ground for seeking votes, it is not permissible. On the other hand, if support is sought on a ground distinguishable from those falling in the prohibited categories, it will not be struck by Section 123 of the Act whatever else it may not offend. It is then left to the electorate to decide whether a permissible view is right or wrong. 50. In Aad Lal v. Kanshi Ram (1980) 2 SCC 350, while deliberating o .....

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provisos to the sub-section, but they are obviously not applicable to the controversy before us. It was therefore necessary, for the purpose of establishing the corrupt practice of undue influence , to prove that there was any direct or indirect interference or attempt to interfere with the exercise of any electoral right. 51. At this stage, it is useful to clarify that the provisos to Section 123(2) are, as has been postulated in the provision itself, without prejudice to the generality of the .....

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ontention 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 .....

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ning sentence of sub-section (2) are the rules which are authorised by, and made under, sub-section (1); the provisions of sub-section (2) are not restrictive of subsection (1) as, indeed is expressly stated by the words without prejudice to the generality of the powers conferred by sub-section (1) . 52. Similar view has been expressed in V.T. Khanzode and Ors. V. Reserve Bank of India and Anr. (1982) 2 SCC 7 , D.K. Trivedi & Sons V. State of Gujarat (1986) Supp. SCC 20, State of J&K V. .....

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that has contemplated in the clause. (iii) If an act which is calculated to interfere with the free exercise of electoral right, is the true and effective test whether or not a candidate is guilty of undue influence. (iv) The words direct or indirect used in the provision have their significance and they are to be applied bearing in mind the factual context. (v) Canvassing by a Minister or an issue of a whip in the form of a request is permissible unless there is compulsion on the electorate to .....

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stituency, has to be given due weightage. (ix) There should never be tyranny over the mind which would put fetters and scuttle the free exercise of an electorate. (x) The concept 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 int .....

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e 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 the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. There is nothing wrong in the same s .....

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Debi Ghosal (1982) 1 SCC 691: 8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. 55. The purpose of referring to th .....

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election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his .....

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mpliance 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 ( .....

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ection of a returned candidate shall be declared to be void if corrupt practice has been committed by a returned candidate or his election agent or by any other person with his consent or with the consent of the returned candidate or his election agent. Thus, if the corrupt practice is proven on the foundation of Section 100(1)(b), the High Court is not to advert to the facet whether result of the election has been materially affected, which has to be necessarily recorded as a finding of a fact .....

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he act must directly affect the result of the election insofar as the returned candidate is concerned. Section 100(1)(b) makes no mention of an agent while Section 100(1)(d) specifically does. There must be some reason why this is so. The reason is that an agent cannot make the candidate responsible unless the candidate has consented or the act of the agent has materially affected the election of the returned candidate. In the case of any person (and he may be an agent) if he does the act with t .....

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idate or his election agent or by any other person with the consent of a returned candidate or his election agent by itself is sufficient to declare the election to be void. On the other hand, the commission of any corrupt practice in the interests 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 .....

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tecedents, 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-disclosure or suppression of facts can be a calculated act to interf .....

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uence at elections. The said provision reads as follows: 171C - Undue influence at elections (1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. (2) Without prejudice to the generality of the provisions of sub-section (1), whoever- (a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or (b) induces or attempts to induce a .....

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ence within the meaning of this section. The said provision has been referred to by the Constitution Bench in Shiv Kripal Singh s case. 62. At this juncture, it is fruitful to refer to Notes on Clauses which are relevant for the present purpose when the Bill No. 106 of 1950 was introduced. It reads as follows: Clauses 121 to 133 deal with certain offences with respect to elections. It may be pointed out that Chapter IX-A of the Indian Penal Code already contains provisions for punishment for the .....

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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 .....

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.P.C. 64. In Charan Lal Sahu V. Giani Zail Singh and Anr. (1984) 1 SCC 390, the Court after referring to Section 171C opined thus: The gravamen of this section is that there must be interference or attempted interference with the free exercise of any electoral right. Electoral right is defined by Section 171-A(b) to mean the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election...... 65. Similarly, in Baburao Patel .....

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rcise of any electoral right. Any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right would amount to undue influence. But even though the definition in sub-s. (1) of s. 171-C is wide in terms it cannot take in mere canvassing in favour of a candidate at an election. If that were so, it would be impossible to run democratic elections. Further sub-s. (2) of s. 171-C shows what the nature of undue influence is though of course it does not cut .....

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become or will be rendered an object of Divine displeasure or of spiritual censure, that would also amount to voluntary interference with the free exercise of the electoral right and would be undue influence. What is contained in sub-s. (2) of S. 171-C is merely illustrative. It is difficult to lay down in general terms where mere canvassing ends and 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 t .....

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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 .....

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been framed by the court of competent jurisdiction. At this stage, it is appropriate to refer to Section 169 of the 1951 Act, the same being pertinent in the context. It reads as under: Section 169 - Power to make rules (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) the form, of affidavit under sub-section (2) of section 33A; (aa) the duties of presiding officers and polling officers .....

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person, who being an elector for a constituency is authorised or appointed for duly at a polling station at which he is not entitled to vole; (e) the procedure to be followed in respect of the lender of vote by a person representing himself to be an elector after another person has voted as such elector; (ee) the manner of giving and recording of voles by means of voting machines and the procedure as to voting to be followed at polling stations where such machines are used; (f) the procedure as .....

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h 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. .....

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llows:- FORM 26 (See rule 4A) Affidavit to be filed by the candidate alongwith nomination paper before the returning officer for election to ………………………(name of the House) from …………………………………constituency (Name of the Constituency) X - X - X (5) I am /am not accused of any offence(s) punishable with imprisonment for two years or more in a pending c .....

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cerned Act(s) and short description of the offence(s) for which charged (c) Name of the Court, Case No. and date of order taking cognizance: (d) Court(s) which framed the charge(s) (e) Date(s) on which the charge(s) was/were framed (f) Whether all or any of the proceedings(s) have been stayed by any Court(s) of competent jurisdiction (ii) The following case(s) is /are pending against me in which cognizance has been taken by the court other than the cases mentioned in item (i) above:- (a) Name of .....

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tion of the People Act, 1951 (43 of 1951)] and sentenced to imprisonment for one year or more. If the deponent is convicted and punished as aforesaid, he shall furnish the following information: In the following case, I have been convicted and sentenced to imprisonment by a court of law: (a) The Details of cases, section(s) of the concerned Act(s) and description of the offence(s) for which convicted (b) Name of the Court, Case No. and date of order(s): (c) Punishment imposed d) Whether any appe .....

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rmation 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 which have been mentioned in Clause 5(i) of Form 26. Apart from the aforesaid, Clause 6 of F .....

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in the columns. In the said case, it has been clarified that para 73 of People s Union for Civil Liberties (PUCL) case will not come in the way of Returning Officer to reject the nomination paper when the affidavit has been filed with blank particulars. It is necessary to understand what has been stated in para 73 of People s Union for Civil Liberties (PUCL) case, how it has been understood and clarified in Resurgence India (supra). Para 73 of People s Union for Civil Liberties (PUCL) case read .....

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herwise of the details furnished with reference to the 'documentary proof'. Very often, in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to contradict the objector's version. It is true that the aforesaid directions issued by the Election Commission are not under challenge but at the same time prima facie it appears that the .....

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erial 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 accommoda .....

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h blank columns. 71. Both the paragraphs when properly understood relate to the stage of scrutiny of the nomination paper. In this context, a question may arise if a candidate fills up all the particulars relating to his criminal antecedents and the nomination is not liable for rejection in law, what would be the impact. At the stage of scrutiny, needless to say, even if objections are raised, that possibly cannot be verified by the Returning Officer. Therefore, we do not intend to say that if o .....

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We have already referred to the authorities in Association for Democratic Reforms (supra) and People s Union for Civil Liberties (NOTA case), (supra). Emphasis on all these cases has been given with regard to essential concept of democracy, criminalisation of politics and preservation of a healthy and growing democracy. The right of a voter to know has been accentuated. As a part of that right of a voter, not to vote in favour of any candidate has been emphasised by striking down Rules 41(2), 41 .....

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, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens - voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of educational qualification or holding of property is rele .....

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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 prope .....

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especially corruption at high places, and repulsive to the idea of criminalisation of politics as it corrodes the legitimacy of the collective ethos, frustrates the hopes and aspirations of the citizens and has the potentiality to obstruct, if not derail, the rule of law. Democracy, which has been best defined as the government of the people, by the people and for the people, expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant aff .....

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mental structure of the Constitution. There is no shadow of doubt that democracy in India is a product of the rule of law and also an embodiment of constitutional philosophy. 74. Having stated about the need for vibrant and healthy democracy, we think it appropriate to refer to the distinction between disqualification to contest an election and the concept or conception of corrupt practice inhered in the words undue influence . Section 8 of the 1951 Act stipulates that conviction under certain o .....

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ate 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 .....

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ere that when an FIR is filed a person filling a nomination paper may not be aware of lodgement of the FIR but when cognizance is taken or charge is framed, he is definitely aware of the said situation. It is within his special knowledge. If the offences are not disclosed in entirety, the electorate remain in total darkness about such information. It can be stated with certitude that this can definitely be called antecedents for the limited purpose, that is, disclosure of information to be chose .....

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h the free exercise of electoral right. The voluntary act also encompasses attempts to interfere with the free exercise of the electoral right. This Court, as noticed earlier, has opined that legitimate canvassing would not amount to undue influence; and that there is a distinction between undue influence and proper influence . The former is totally unacceptable as it impinges upon the voter s right to choose and affects the free exercise of the right to vote. At this juncture, we are obliged to .....

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. In PUCL (supra) Venkattarama Reddi, J. has stated thus: Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom . 77. In Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh (2001) 3 SCC 594, the Court observed that: Clean, efficient and benevolent administration are the essential features of good .....

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ty 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 th .....

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the very commencement. It is well settled in law that election covers the entire process from the issue of the notification till the declaration of the result. This position has been clearly settled in Hari Vishnu Kamath V. Ahmad Ishaque and others AIR 1955 SC 233, Election Commission of India V. Shivaji (1988) 1 SCC 277 and V.S. Achuthanandan V. P.J. Francis and Another (1999) 3 SCC 737. We have also culled out the principle that corrupt practice can take place prior to voting. The factum of no .....

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n thereof. Sir/Madam, Please refer to the Commission s instructions regarding dissemination of information in the affidavits filed by the candidates along with the nomination papers. The Commission has, inter alia, directed that copies of affidavits should be displayed on the notice board of RO/ARO, and in cases where offices of RO and ARO are outside the boundary of the constituency concerned, copies of affidavits should be displayed in the premises of a prominent public office within the limit .....

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ormed choice of their 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 s .....

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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 candidature, the affidavit already uploaded on the website shall not be removed. 81. At this juncture, it is also relevant to refer to the circular dated 12.6.2013 which deals with complaints/counter affidavits filed against the statements in the affidavits and dissemination thereof. It is condign to reproduce t .....

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ing of the same. 82. Recently on 3.3.2014, the Commission has issued a circular no. 3/ER/2013/SDR Vol.V to the Chief Electoral Officers of all States and Union Territories relating to affidavits filed by candidates and dissemination thereof. We think it appropriate to reproduce the same in toto as it has immense significance. As per the existing instructions of the Commission the affidavits filed by the candidates with the nomination paper are uploaded on the website of the CEO and full hard cop .....

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copies of the affidavits from the RO, copies are to be supplied. 2. There have been demands from different quarters seeking wider dissemination of the information declared in the affidavits filed by the contesting candidates, for easier access to the electors. Accordingly, views of the CEOs were sought in this regard. The responses received from the various Chief Electoral Officers have been considered by the Commission. The response received from CEOs showed that most of the CEOs are in favour .....

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c 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 dis .....

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ors for these elections. 83. The purpose of referring to the instructions of the Election Commission is that the affidavit sworn by the candidate has to be put in public domain so that the electorate can know. If they know the half truth, as submits Mr. Salve, it is more dangerous, for the electorate are denied of the information which is within the special knowledge of the candidate. When something within special knowledge is not disclosed, it tantamounts to fraud, as has been held in S.P. Chen .....

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culars and despite that he secures the votes that will be an informed, advised and free exercise of right by the electorate. That is why there is a distinction between a disqualification and the corrupt practice. In an election petition, the election petitioner is required to assert about the cases in which the successful candidate is involved as per the rules and how there has been non-disclosure in the affidavit. Once that is established, it would amount to corrupt practice. We repeat at the c .....

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mber or Members or Chairperson or Chairpersons of any Panchayat or 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 fili .....

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mination 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 respective Returning Officers by displaying a copy of the affidavit on the notice board of his office and also by making the copies thereof available to all .....

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nnexure shall be delivered to the candidates along with the forms of nomination papers as part of the nomination papers. 85. We have also reproduced the information that is required to be given. Sections 259 and 260 of the 1994 Act makes the provisions contained under Section 123 of the 1951 Act applicable. Submission of Ms. V. Mohana, learned counsel for the appellant is that there was no challenge on the ground of corrupt practice. As we find the election was sought to be assailed on many a gr .....

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