Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1478 OF 2015

(@ SLP(C) NO. 14918 OF 2009)

Krishnamoorthy ... Appellant

Versus

Sivakumar & Ors. ...Respondents

J U D G M E N T

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

Page 2 2

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 dreadful fear that would

rule supreme creating an incurable chasm in the spine of the

whole citizenry. In such a situation the generation of today,

in its effervescent ambition and volcanic fury, smothers 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 disposed to think, has become a

necessity, as, in the case at hand, we are called upon to

Page 3 3

decide, what constitutes “undue influence” in the context of

Section 260 of Tamil Nadu Panchayats Act, 1994 (for short

‘the 1994 Act’) which has adopted the similar expression as

has been used under Section 123 (2) of the Representation

of People’s Act, 1951 (for brevity ‘the 1951 Act’) thereby

making the delineation of great significance, for our

interpretation of the aforesaid words shall be applicable to

election 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 of the election was called in question on the sole

ground that he had filed a false declaration suppressing the

details of criminal cases pending trial against him and,

therefore, his nomination deserved to be rejected by the

Returning Officer before the District Court Coimbatore in

Page 4 4

Election O.P. No. 296 of 2006. As the factual matrix would

unfurl that Tamil Nadu State Election Commission (TNSEC)

had issued a Notification bearing S.O. No.

43/2006/TNSEC/EG dated 1.9.2006 which stipulated that

every 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 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

Page 5 5

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 affidavit only

mentioning Crime No 10 of 2001 and did not mention the

details of the chargesheets filed against him which were

pending trial. In this backdrop, the Election Petition was

filed to declare his election as null and void on the ground

that he could not have contested the election and, in any

case, the election was unsustainable.

4.In the Election Petition, the petitioner mentioned all the

eight case by way of a chart. It is as follows:

S.No.Crime

No.10/01/Section

C.C. No. Complainant Court

01. U/s 406 477A IPC 3/2004 CCIW/CID JM IV

Coimbator

e

02. U/s 120 (b) r/w 406

477 A IPC

6/2004 ” ”

03. U/s 408, 406 477 A

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 ” ”

Page 6 6

5.After asseverating certain other facts, it was pleaded

that the 1

st

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 respondent

was sought to be declared to be invalid with certain other

consequential reliefs. In the counter-statement filed by the

elected candidate, a stand was put forth that the election

petitioner though was present at the time of scrutiny of the

nomination papers, had failed to raise any objection and, in

any case, he had mentioned all the necessary details in the

nomination papers perfectly. It was further set forth as

follows:

“All the averments stated in the 3

rd

para of the

petition is false and hereby denied. The averment

stated that 1

st

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

Page 7 7

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,

1

People’s Union for Civil Liberties (PUCL) &

Another V. Union of India and Another

2

, 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 in that

context referred to the ‘Form’ to be filled up by a candidate

1

(2002) 5 SCC 294

2

(2003) 4 SCC 399

Page 8 8

as per the Notification dated 1.9.2006 and opined that an

element of sanctity and solemnity is attached to the said

declaration, by the very fact that it is required to be in the

form of an affidavit sworn and attested in a particular

manner. The High Court emphasised on the part of the

verification containing the declaration that “nothing material

has been concealed”. On the aforesaid analysis, the High

Court held that the elected 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 of

Sections 259 and 260 of the 1994 Act and the principles that

have been set out in various decisions of this Court and

opined that the non-disclosure of full and complete

information relating to his implication in criminal cases

amounted to an attempt to interfere with the free exercise

Page 9 9

of electoral right which would fall within the meaning of

‘undue influence’ and consequently ‘corrupt practice’ under

Section 259(1)(b) read with Section 260(2) of the 1994 Act.

Being of this view, the High Court agreed 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 ‘undue influence’ due to non-

disclosure 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

Page 10 10

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 Reforms (supra), the Court

posed the following important question:-

“...In a nation wedded to republican and

democratic form of government, where election as

a Member of Parliament or as a Member of

Legislative Assembly is of utmost importance for

governance of the country, whether, 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

Page 11 11

authorities in Vineet Narain V. Union of India

3

, Kihoto

Hollohan V. Zachillhu

4

and opined that in case when the

Act or Rules are silent on a particular subject and the

authority implementing the same has constitutional or

statutory power to implement it, the Court can necessarily

issue directions or orders on the said subject to fill the

vacuum or void till the suitable law is enacted; that one of

the basic structures of our Constitution is “republican and

democratic form of government and, therefore, the

superintendence, direction and control of the “conduct of all

elections” to Parliament and to the legislature of every State

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

5

, Kanhiya

3

(1998) 1 SCC 226

4

1992 Supp (2) SCC 651

5

(1978) 1 SCC 405

Page 12 12

Lal Omar V. R.K. Trivedi

6

, Common Cause V. Union of

India

7

and opined thus:

“If right to telecast and right to view sport games

and the right to impart such information is

considered to be part and parcel of Article 19(1)

(a), we fail to understand why the right of a

citizen/voter — a little man — to know about the

antecedents of his candidate cannot be held to be

a fundamental right under Article 19(1)(a). In our

view, democracy cannot survive without free 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 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)

8

, jurisdiction of

the Election Commission and ultimately the Court issued the

following directions:

6

(1985) 4 SCC 628

7

(1996) 2 SCC 752

8

(1998) 4 SCC 626

Page 13 13

“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:

(1) Whether the candidate is

convicted/acquitted/discharged of any criminal

offence in the past — if any, whether he is

punished with imprisonment or fine.

(2) Prior to six months of filing of nomination,

whether the candidate is accused in any pending

case, of any offence punishable with imprisonment

for two years or more, and in which charge is

framed or cognizance is taken by the court of law.

If so, the details thereof.

(3) The assets (immovable, movable, bank

balance, etc.) of a candidate 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

Page 14 14

question under Article 32 of the Constitution of India. The

three-Judge Bench in People’s Union for Civil Liberties

(PUCL) (supra) posed the following questions:-

“Should we not have such a situation in selecting

a candidate contesting elections? In a vibrant

democracy – is it not required that a little voter

should know the biodata of his/her would-be

rulers, law- makers or destiny-makers of the

nation?”

And thereafter,

“Is there any necessity of keeping in the dark the

voters that their candidate was involved in

criminal cases of murder, dacoity or rape or has

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.During the pendency of the judgment of the said case,

the 1951 Act was amended introducing Section 33B. The

Court reproduced Section 33-A and 33-B, which are as

follows:-

Page 15 15

“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 sub-

section (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 the affidavit, delivered under

sub-section (2), at a conspicuous place at his

office for the information of the electors relating to

a constituency for which the nomination paper is

delivered.

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

Page 16 16

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 are really to see what has been stated with regard to the

disclosure, and the Ordinance issued after the judgment.

M.B. Shah, J., in his ultimate analysis held as follows:-

“What emerges from the above discussion can be

summarised thus:

(A) The legislature can remove the basis of a

decision rendered by a competent court thereby

rendering that decision ineffective but the

legislature has no power to ask the

instrumentalities of the State to disobey or

disregard the decisions given by the court. A

declaration 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 provides that

notwithstanding anything contained in the

judgment of any court or directions 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 the Act or the rules

made thereunder, is on the face of it beyond the

Page 17 17

legislative competence, as this Court has held that

the voter has a fundamental right under Article

19(1)(a) to know the antecedents of a candidate

for 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) 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 meaningless unless the citizens

are well informed about the antecedents of a

candidate. There can be little doubt that exposure

to public gaze and scrutiny is one of the surest

means to cleanse our democratic governing

system and to have competent legislatures.

Page 18 18

(E) It is established that fundamental rights

themselves have no fixed content, most of them

are empty vessels into which each generation

must pour its content in the light of its experience.

The attempt of the Court should be to expand the

reach and ambit of the fundamental rights by

process of judicial interpretation. During the last

more than half a decade, 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 the media and others to enlighten the voter. As a

principle, it was laid down by him that right to make a

choice by means of a ballot is a part of freedom of

expression. Some of the eventual conclusions recorded by

him that are pertinent for our present purpose, are:-

“(1) Securing information on the basic details

concerning the candidates contesting for elections

to Parliament or the State Legislature promotes

freedom of expression and therefore the right to

information forms an integral part of Article 19(1)

(a). This right to information is, however,

qualitatively different from the right to get

Page 19 19

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 made, the Court has to

make an independent assessment in order to

evaluate whether the items of information

statutorily ordained are reasonably adequate to

secure the right of information available to the

voter/citizen. In embarking on this exercise, 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

Page 20 20

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 set up

one after the other by the Government to which a

reference has been 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 ill-

effects 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 half-

hearted attempt in the direction of reform of the

election system is to be taken, as has been done

by the present legislation by amending some

provisions of the Act here and there, but a much

improved elections system is required to be

evolved to make the election process both

transparent and accountable so that influence of

tainted money and physical force of criminals do

not make democracy a farce – the citizen’s

fundamental “right to information” should be

recognised and fully effectuated. This freedom of

a citizen to participate and choose a candidate at

an election 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

Page 21 21

the election. With the efflux of time, the Court in

subsequent decisions has further elaborated the right to

know in the context of election, as holding a free and fair

election stabilises the democratic process which leads to

good governance. In this regard, reference to a recent

three-Judge Bench decision in Resurgence India V.

Election Commission of India & Anr.

9

is advantageously

fruitful. A writ petition was filed under Article 32 of the

Constitution of India to issue specific directions to effectuate

the meaningful implementation of the judgments rendered

by this Court in Association for Democratic Reforms

(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

10

. Culling out the principle from the

earlier precedents, the three-Judge Bench opined:

9

AIR 2014 SC 344

10

(2003) 2 SCC 176

Page 22 22

“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 of

affidavit stating that the information given in the affidavit is

correct, but leaving the contents blank would fulfil the

objectives behind filing the same, and answered the

question in the negative on the reasoning that the ultimate

purpose of filing of affidavit along with the nomination

paper is to effectuate the fundamental right of the citizen

under Article 19(1)(a) of the Constitution of India and the

citizens are required to have the necessary information in

order to make a choice of their voting and, therefore, when

a candidate files an affidavit with blank particulars at the

Page 23 23

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 candidate who

has filed an affidavit with particulars left blank

should be treated at par, it will result in breach of

fundamental right guaranteed under Article 19(1)

(a) of the Constitution, viz., ‘right to know’ which is

inclusive of freedom of speech and expression as

interpreted in Association for Democratic Reforms

(supra).”

22.The Court further held that filing of an affidavit with

blank places will be directly hit by Section 125A(i) of the

1951 Act. Ultimately, the Court held:-

“In succinct, if 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 bear no significance as far as the breach of

fundamental right of the citizen is concerned. For

Page 24 24

the aforesaid reasons, we are unable to accept the

contention of the Union of India.”

23.The Court summarized its directions in the following

manner:

“(i) The voter has the elementary right to know

full particulars of a candidate who is to represent

him in the Parliament/Assemblies 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 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.

Page 25 25

(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 remark as 'NIL' or 'Not Applicable' or

'Not known' in the columns and not to leave the

particulars blank.

(vii) Filing of affidavit with blanks will be directly

hit by Section 125A(i) of the RP Act However, as

the nomination paper itself is rejected by the

Returning Officer, we find no reason why the

candidate must be again penalized for the same

act by prosecuting him/her.”

24.The fear to disclose details of pending cases has been

haunting the people who fight the elections at 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 Rules, 1961 (for short, ‘the Rules’) came into force,

Page 26 26

to give some space to the candidates and deny the

advantage to the voters. At that juncture, a writ petition

under Article 32 of the Constitution of India was filed by the

People’s Union for Civil Liberties (PUCL) and another,

challenging the constitutional validity of the said Rules to

the extent that the said provisions violate the secrecy of

voting which is fundamental to free and fair elections and is

required to be maintained as per Section 128 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 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

Page 27 27

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

11

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 and thus participate in the governance of our

country. For democracy to survive, it is essential

that the best available men should be chosen as

people’s representatives for proper governance of

the country. This can be best achieved through

men of high moral and ethical values, who win the

elections on a positive vote. Thus in a vibrant

democracy, the voter must be given an

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

11

(2013) 10 SCC 1

Page 28 28

extent they violate the secrecy of voting and accordingly

directed the Election Commission to provide necessary

provision in the ballot papers/EVMs and another button

called “None of the Above” (NOTA).

27.The aforesaid decisions pronounce beyond any trace of

doubt that a voter has a fundamental right to know about

the candidates contesting the elections as that is essential

and a necessary concomitant for a free and fair election. In

a way, it is the first step. The voter is entitled to make a

choice after coming to know the antecedents of a candidate

a requisite for making informed choice. It has been held by

Shah, 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

12

, has ruled that:-

“…..Voting is a formal expression of will or opinion

12

(1993) 4 SCC 234

Page 29 29

by the person entitled to exercise the right on the

subject or issue in question [and that] ‘right to

vote means right to exercise the right in favour of

or against the motion or resolution. Such a right

implies right to remain neutral as well’.”

29.Emphasising on the choice in People’s Union for Civil

Liberties (NOTA case), the Court has expressed thus:-

“55. Democracy is all about choice. This choice

can be better expressed by 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 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

Page 30 30

political parties will realise that a large number of

people are expressing their disapproval with the

candidates being put up by them, gradually there

will be a systemic change and the political parties

will be forced to accept the will of the people and

field candidates who are known for their integrity.

58. The direction can also be supported by the

fact that in the existing system a dissatisfied voter

ordinarily does not turn up for voting which in turn

provides a chance to unscrupulous elements to

impersonate the dissatisfied voter and cast a vote,

be it a negative one. Furthermore, a provision of

negative voting 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 1951 Act. To

appreciate the said facet, the sanctity of constitutional

democracy and how it is dented by the criminalisation of

politics are to be taken note of. The importance of

constitutional democracy has been highlighted from various

angles by this Court in S. Raghbir Singh Gill V. S.

Page 31 31

Gurcharan Singh Tohra

13

, S.S. Bola V. B.D. Sardana

14

,

State of U.P. V. Jai Bir Singh

15

, Reliance Natural

Resources Ltd., V. Reliance Industries Ltd.

16

, Ram

Jethmalani V. Union of India

17

and State of Maharahtra

V. Saeed Sohail Sheikh

18

.

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

19

, a three-Judge Bench

while dealing 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

13

(1980) Supp SCC 53

14

(1997) 8 SCC 522

15

(2005) 5 SCC 1

16

(2010) 7 SCC 1

17

(2011) 8 SCC 1

18

(2012) 13 SCC 192

19

(1997) 4 SCC 306

Page 32 32

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 reveals several alarming and deeply

disturbing trends that are prevalent in our present

society. For some time now, it has been generally

perceived that the nexus between politicians,

bureaucrats and criminal elements in our society

has been on the rise, the adverse effects of 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

20

, the Court was dealing with the provisions made in

the election law which excluded persons with criminal

background and the kind specified therein, from the

20

(1997) 6 SCC 1

Page 33 33

elections as candidates and voters. In that context, the

Court held thus:

“......The object is to prevent criminalisation of

politics and maintain probity in elections. Any

provision enacted with a view to promote this

object must be welcomed and upheld as

subserving the constitutional purpose. The elbow

room available to the legislature in classification

depends on the context and the object for

enactment of the provision. The existing

conditions in which 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, therefore, be so viewed. More

elbow room to the legislature for classification has

to be available to achieve the professed object.”

Be it stated, the Court did not accept the challenge to

the constitutional validity of sub-Section 5 of Section 62 of

the 1951 Act which was amended to provide that no person

shall vote at any election if he is confined in prison, whether

under a sentence of imprisonment, or under lawful

confinement, or otherwise or is in the lawful custody of the

police. A proviso was carved out to exclude a person

subjected to preventive detention under any law for the time

Page 34 34

being in force.

33.Recently, in Manoj Narula V. Union of India

21

, 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 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 Second Administrative Reforms Commission

(2008), (viii) Justice J.S. Verma Committee Report

on Amendments to Criminal Law (2013), and (ix)

Law Commission Report (2014).

13. Vohra Committee Report and other reports

have been taken note of on various occasions by

21

(2014) 9 SCC 1

Page 35 35

this Court. Justice J.S. Verma Committee Report on

Amendments to Criminal Law has proposed

insertion of Schedule 1 to the 1951 Act

enumerating offences under IPC befitting the

category of “heinous” offences. It recommended

that Section 8(1) of 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 from the date of

taking cognizance or conviction, as the case may

be. It further proposed that disqualification in case

of conviction shall continue for a further period of

six years from the date of release upon conviction

and in case of acquittal, the disqualification shall

operate from the date of taking cognizance till the

date of acquittal.”

34.Criminalisation of politics is absolutely unacceptable.

Corruption in public life is indubitably deprecable. The

citizenry has been compelled to stand 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

22

, was constrained to say thus:

“It can be stated without any fear of contradiction

that corruption is not to be judged by degree, for

22

(2013) 4 SCC 642

Page 36 36

corruption mothers disorder, destroys societal will

to progress, accelerates undeserved ambitions,

kills the conscience, jettisons the glory of the

institutions, paralyses the economic health of a

country, corrodes the sense of civility and mars

the marrows of governance. It is worth noting that

immoral acquisition 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

23

, 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 from equal

treatment. The decision-making power does not

segregate corrupt officers into two classes as they

are common crimedoers and have to be tracked

23

(2014) 8 SCC 682

Page 37 37

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 promotes

criminalisation of politics by default and due to lack of

information and awareness. The denial of information, a

deliberate one, has to be appreciated in the context of

corrupt practice. Section 123 of the 1951 Act deals with

corrupt practices. Sub-Section 2 of Section 123 deals with

undue influence. The said sub-Section reads as follows:

“(2)Undue influence, that is to say, any direct or

indirect interference or attempt to interfere on the

part of the candidate or his agent, or of any other

person [with the consent of the candidate or his

election agent], with the free exercise of any

electoral right:

Provided that-

Page 38 38

(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 to induce a

candidate or an elector to believe that he, or

any person in whom he is interested, will

become or will be rendered an object of divine

displeasure or spiritual censure,

shall be deemed to interfere with the free

exercise of the electoral right of such candidate

or elector within the meaning of this clause;

(b)a declaration of public policy, or a promise of

publication, or the mere exercise of a legal right

without intent to interfere with an electoral right, shall

not be deemed to 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 sub-

section (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

Page 39 39

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) of Section 260 read as follows:

“260. Corrupt practices – The following shall

be deemed to be corrupt practice for the purposes

of this Act:-

(1)Bribery as defined in Clause (1) of Section

123 of the Representation of People Act, 1951.

(Central Act XLIII of 1951)

(2)Undue influence as defined in Clause (2) of

the said section.”

39.From the aforesaid provisions, it is clear as day that

concept of undue influence as is understood in the context

of Section 123(2) of the 1951 Act has been adopted as it is a

Page 40 40

deemed conception for all purposes. Thus, a candidate is

bound to provide the necessary information at 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 the said case that the candidate must make a

minimum effort to explicitly remark as ‘Nil’ or ‘Not

Applicable’ or ‘Not Known’ in the columns and not to leave

the particulars blank. It is because the citizens have a

fundamental right to know about the candidate, for it is a

natural right flowing from the concept of democracy. Thus,

if a candidate paves the path of adventure to leave the

column blank and does not rectify after the reminder by the

Returning Officer, his nomination paper is fit to be rejected.

But, once he fills up the column with some particulars and

deliberately does not fill up other relevant particulars,

Page 41 41

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 as follows:

A.The notion of what constitutes the free exercise

of any electoral right cannot be static. The

exercise of electoral rights in a democracy is

central to the very existence of a democracy.

The notion of the free exercise of any electoral

right 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

Page 42 42

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.

Page 43 43

E.Section 123 of the 1951 Act defines “undue

influence” in terms of interference with the free

exercise of an 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

the context of criminal antecedents, the failure

to disclose the particulars of any charges

framed, cognizance taken, or conviction for any

offence that involves moral turpitude would

constitute an act that causes undue influence

upon the voters.

G.Purity of public life has its own hallowedness

and hence, there is emphasis on the

Page 44 44

importance of truth in giving information. Half

truth is worse than silence; it has the effect

potentiality to have a cacophony that can usher

in anarchy.

Learned Amicus 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 heinous, or involve moral

turpitude or corruption. He would submit, with all fairness at

his command, that for democracy to thrive, the ‘right to

know’ is paramount and if a maladroit attempt is made by a

candidate not to disclose the pending cases against him

pertaining to criminal offences, it would have an impact on

the voters as they would not be in a position to know about

his antecedents and ultimately their choice would be

Page 45 45

affected. Learned ASG would urge that as the non-

disclosure of the offence 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-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

Page 46 46

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.

24

, Baburao Patel & Ors. V.

Dr. Zakir Hussain & Ors.

25

, Jeet Mohinder Singh V.

Harminder Singh Jassi

26

, Govind Singh V. Harchand

Kaur

27

, Mangani Lal Mandal V. Bishnu Deo Bhandari

28

,

and Shambhu Prasad Sharma V. Charandas Mahant

29

,

44.At this stage, we think it condign to survey certain

authorities how undue influence has been viewed by this

Court and the relevant context therein. In Ram Dial v.

Sant Lal

30

while discussing about the facet of undue

influence, the three-Judge Bench 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

24

AIR 1966 SC 824

25

AIR 1968 SC 904

26

(1999) 9 SCC 386

27

(2011) 2 SCC 621

28

(2012) 3 SCC 314

29

(2012) 11 SCC 390

30

AIR 1959 SC 855

Page 47 47

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 the

result contemplated in the clause. What is material

under the Indian law, is not the actual effect

produced, but the doing of such acts as are

calculated to interfere with the free exercise of any

electoral right. Decisions of the English courts,

based on the words of the English statute, which

are not strictly in pari materia with the words of

the Indian statute, cannot, therefore, be used as

precedents in this country.”

[Emphasis added]

After so stating, the Court considered the submission

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.

Such a course of conduct on his part, will only be a

use of his great influence amongst a particular

section of the voters in the constituency; but it will

amount to an abuse of his great influence if the

words he uses in a document, or utters in his

speeches, leave no choice to the persons

addressed by him, in the exercise of their electoral

rights. If the religious head had said that he

Page 48 48

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 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 indirect”

have been added to indicate the nature of

Page 49 49

interference. It will be seen that if anything, the

definition of “undue influence” in the

Representation of the People Act may be wider. It

will therefore be useful to refer to cases under the

election law to see how election tribunals have

looked at the matter while considering the scope

of the words “undue influence”.”

46.The Court referred to the authority in R.B. Surendra

Narayan Sinha V. Amulyadhone Roy

31

where the

question arose whether 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

32

,

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 right and such declarations on his part

would not amount to undue influence under the 1951 Act.

In Mast Ram V. S. Iqbal Singh

33

, the legitimate exercise of

influence by a political party or an association should not be

confused with undue influence. After referring to various

authorities, the Court opined thus:

31

1940 IC 30

32

(1953) 6 Ele LR 288 (Ele. Tri Bangalore)

33

(1955) 12 Ele LR 34 (Ele Tri Amritsar)

Page 50 50

“It will be seen from the above review of the cases

relating to undue influence that it has been

consistently held in this country that it is open to

Ministers 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

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

34

, 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.”

34

(1970) 2 SCC 567

Page 51 51

After so stating, the Court drew distinction between

Section 18 of the 1952 Act and Section 123 of the 1951 Act.

It referred to Chapter IX A of the Indian Penal Code, 1860

which deals with offences relating to elections and adverted

to the issue of undue influence at elections as enumerated

under Section 171-C. The argument that was advanced

before the Court was to the following effect:

“…the language 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 interference or

attempted interference contemplated by Section

171-C can only be that which is committed at the

stage when the elector exercises his right i.e. after

he has made up his mind to vote for his chosen

candidate or to refrain from voting. It was further

argued that the words used in Section 171-C were

“the free exercise of vote” and not “exercise of

free vote”. The use of those words shows that

canvassing or propaganda, however virulent, for or

against a candidate would not amount to undue

influence, 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:

Page 52 52

“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 completely

disregards the structure and the provisions of

Section 171-C. Section 171-C is enacted in three

parts. The first sub-section contains the definition

of “undue influence”. This is in wide terms and

renders a person voluntarily interfering or

attempting to interfere with the free exercise of

any electoral right guilty of committing undue

influence. That this is very wide is indicated by the

opening sentence of sub-section (2), i.e. “without

prejudice to the generality 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

35

.”

After so stating, the Court proceeded to lay down

as follows:-

“It follows from this that we have to look at sub-

section (1) as it is without restricting its provisions

by what is contained in sub-section (2). Sub-

section (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

35

AIR 1945 PC 156

Page 53 53

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 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 final act of casting

his vote.

Sub-section (3) further proceeds on the basis that

the expression “free exercise of his electoral right”

does not mean that a voter is not to be

influenced. This expression has to be read in the

context of an election in a democratic society and

the candidates and their supporters must

naturally be allowed to canvass support by all

legal and legitimate means. They may propound

their programmes, policies and views on various

questions which are exercising the minds of the

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. At the stage of casting

his ballot paper there would be no pressure cast

on him because his mind has already been made

up for him by the hypnotiser.

It was put like this in a book on Elections:

“The freedom of election is two-fold; (1)

freedom in the exercise of judgment. Every

Page 54 54

voter should be free to exercise his own

judgment, in selecting the candidate he

believes to be best fitted to represent the

constituency; (2) Freedom to go and have

the means of going to the poll to give his

vote without fear or intimidation.”

36

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 voting, and that the definition

covers all 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

37

, 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

36

Law of Elections and Election Petitions – Nanak Chand – 1950 Edn., p. 263

37

(1975) 1 SCC 368

Page 55 55

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 conceivable act which directly or indirectly

interferes or attempts to interfere with the free

exercise of electoral right. In one sense even

election propaganda carried on vigorously,

blaringly and systematically through charismal

leaders or through various media in favour of a

candidate 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 right involves either

violence or threat of injury of any kind to any

candidate or an elector or inducement or attempt

to induce a candidate or elector to believe that he

will become an object of divine displeasure or

spiritual censure. The prefix “undue” indicates

that there must be some abuse of influence.

“Undue influence” is used in contra-distinction to

“proper influence”. Construed in the light of the

proviso, clause (2) of Section 123 does not bar or

penalise legitimate canvassing or appeals to

reason and judgment of the voters or other lawful

means of persuading voters to vote or not to vote

Page 56 56

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.In Ziyauddin Burhanuddin Bukhari v. Brijmohan

Ramdass Mehra

38

, a three-Judge Bench speaking through

Beg, J., about undue influence had to say this:

“Section 123(2), gives the “undue influence”

which could be exercised by a candidate or his

agent during an election a much wider

connotation than this expression has under the

Indian Contract Act. “Undue influence”, as an

election offence under the English law is explained

as follows in Halsbury’s Laws of England, Third

Edn., Vol. 14, pp. 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 voting.

A person is also guilty of undue influence

38

(1976) 2 SCC 17

Page 57 57

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

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 undue

influence by making statements. We will,

therefore, proceed to consider the particular facts

of the case before us.

xxxxx xxxxx xxxxx

To return to the precise question before us now,

we may repeat that what is relevant in such a

case is what is professed or put forward by a

candidate as a ground for preferring him over

another and not the motive or reality behind the

profession which may or may not be very secular

or mundane. It is the professed or ostensible

ground that matters. If that ground 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

Page 58 58

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

39

, while deliberating on

undue influence as enshrined under Section 123(2) of the

1951 Act, it has been held thus:

“It has to be remembered that it is an essential

ingredient of the corrupt practice of “undue

influence” under sub-section (2) of Section 123 of

the Act, that there should be any “direct or indirect

interference or attempt to interfere” on the part of

the candidate or his agent, or of any other person

with the consent of the candidate or his agent,

“with the free exercise of any electoral right”.

There are two 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 said clause.

The meaning of the said phraseology has been interpreted

in Shiv Kripal Singh (supra). In this context, we may

profitably quote a passage from Om Prakash & Ors. V.

Union of India & Ors.

40

39

(1980) 2 SCC 350

40

(1970) 3 SCC 942

Page 59 59

“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 Lordships, the function of

sub-section (2) is merely an illustrative one;

the rule-making power is conferred by sub-

section (1) and ‘the rules’ which are referred

to in the opening 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 sub-

section (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.

41

, D.K.

41

(1982) 2 SCC 7

Page 60 60

Trivedi & Sons V. State of Gujarat

42

, State of J&K V.

Lakhwinder Kumar

43

, and BSNL V. Telecom Regulatory

Authority of India

44

. Thus, the first part of Section 123(2)

is not restricted or controlled by the provisos.

53.From the aforesaid authorities, the following principles

can be culled out:-

(i)The words “undue influence” are not to be

understood or conferred a meaning in the context

of English statute.

(ii)The Indian election law pays regard to the use

of such influence having the tendency to bring

about the result 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.

42

(1986) Supp. SCC 20

43

(2013) 6 SCC 333

44

(2014) 3 SCC 222

Page 61 61

(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 vote in the

manner indicated.

(vi)The structure of the provisions contained in

Section 171-C of IPC are to be kept in view while

appreciating the expression of ‘undue influence’

used in Section 123(2) of the 1951 Act.

(vii)The two provisos added to Section 123(2) do

not take away the effect of the principal or main

provision.

(viii) Freedom in the exercise of judgment which

engulfs a voter’s right, a free choice, in selecting

the candidate whom he believes to be best fitted

to represent the constituency, 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

Page 62 62

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

45

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

45

(2003) 8 SCC 369

Page 63 63

same statute which confers the right to contest an

election also to provide for the necessary

qualifications without which a person cannot offer

his candidature for an elective office and also to

provide for disqualifications which would disable a

person from contesting for, or holding, an elective

statutory office.

Reiterating the law laid down in N.P. Ponnuswami

v. Returning Officer, Namakkal Constituency

46

and

Jagan Nath v. Jaswant Singh

47

this Court held in

Jyoti Basu v. Debi Ghosal

48

:

“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 the same is to remind one

that the right to contest in an election is a plain and simple

statutory right and the election of an elected candidate can

only be declared null and void regard being had to the

grounds provided in the statutory enactment. And the

ground of ‘undue influence’ is a part of corrupt practice.

56.Section 100 of the 1951 Act provides for grounds for

declaring election to be void. Section 100(1) which is

46

AIR 1952 SC 64

47

AIR 1954 SC 210

48

(1982) 1 SCC 691

Page 64 64

relevant for the present purpose reads as under:

“100. Grounds for declaring 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 election agent; or

(c)that any nomination 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 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,

Page 65 65

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

49

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 of the returned candidate to be

void. This stands in contra distinction to Section 100(1)(b)

which provides that election 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

49

(1977) 1 SCC 771

Page 66 66

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

for the purpose of Section 100(1)(d)(ii).

59.In this context, we may refer to the authority in

Samant N. Balkrishna and Anr. V. George Fernandez

and Others

50

, wherein Hidayatullah, C.J., speaking for the

Court opined thus:

“If we were not to keep this distinction in mind

there would be no difference between Section

100(1)(b) and 100(1)(d) insofar as an agent is

concerned. We have shown above that a corrupt

act per se is enough under Section 100(1)(b) while

under Section 100(1)(d) the 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 the consent of

the returned candidate there is no need to prove

the consent of the returned candidate and there is

no need to prove the effect on the election.”

60.In Manohar Joshi V. Nitin Bhaurao Patil and Anr.

51

,

a three-Judge Bench reiterated the principle by stating that:

50

(1969) 3 SCC 238

51

(1996) 1 SCC 169

Page 67 67

“The distinction between clause (b) of sub-section

(1) and sub-clause (ii) of clause (d) therein is

significant. The ground in clause (b) provides that

the commission of any corrupt practice by a

returned candidate 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 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 non-

disclosure 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

Page 68 68

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 interfere

with such right. The undue influence as has been

mentioned under Section 123(2) uses the words ‘direct or

indirect’. The Court has drawn distinction between

legitimate canvassing and compulsion on the electorate.

Emphasis has been given to the ingenuity of the human

mind which is unlimited and how the nature of interference

can be unlimited. The ostensibility of the ground has been

taken into consideration. In this context, we think it apt to

reproduce Section 171-C that deals with undue influence 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 candidate or

voter to believe that he or any person in whom he

is interested will become or will be rendered an

object of Divine displeasure or of spiritual censure,

Page 69 69

shall be deemed to interfere with the free exercise

of the electoral right of such candidate or voter,

within the meaning of sub-section (1).

(3) A declaration of public policy or a promise of

public action, or the mere exercise of a legal right

without intent to interfere with an electoral right,

shall not be deemed to be interference 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 corrupt

practices of bribery, undue influence and

personation at elections. “Bribery”, “undue

influence” and “personation” as defined in the said

Chapter do not differ materially from the

descriptions of such practices contained in clause

118 of the Bill which have been reproduced from

Part I of 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

Page 70 70

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 Chapter IX-A of the I.P.C.

64.In Charan Lal Sahu V. Giani Zail Singh and Anr.

52

,

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 (supra), the Court has

compared Section 123(2) which defines undue influence,

more or less, in the same language as in Section 171-C IPC

except the words “direct or indirect” which have been added

into the nature of interference. In the said case while

dealing with the definition of Section 171-C IPC, the Court

52

(1984) 1 SCC 390

Page 71 71

has observed thus:

“It will be seen from the above definition that the

gist of undue influence at an election consists in

voluntary interference or attempt at interference

with the free exercise 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 down the generality of the

provisions contained in sub-section (1). Where

any threat is held out to any candidate or voter or

any person in whom a candidate or voter is

interested and the threat is of injury of any kind,

that would amount to voluntary interference or

attempt at interference with the free exercise of

electoral right and would be undue influence.

Again where a person induces or attempts to

induce a candidate, or voter to believe that he or

any person in whom he is interested will 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 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.”

Page 72 72

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 giving a declaration

by way of an affidavit duly sworn by the candidate has its

own signification.

67.This Court had issued certain directions in Association

for Democratic Reforms (supra) and People’s Union for

Civil Liberties (PUCL) (supra). Section 33-A which has

been reproduced earlier is relatable to furnishing of an

information in respect of an offence punishable with

Page 73 73

imprisonment for two years or more in a pending case in

which a charge has 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 at polling stations;

(aaa) the form of contribution report;

(b) the checking of voters by reference to the

electoral roll;

(bb) the manner of allocation of equitable sharing

of time on the cable television network and other

electronic media;

(c) the manner in which votes are to be given both

generally and in the case of illiterate voters or

voters under physical or other disability;

(d) the manner in which votes are to be given by a

presiding officer, polling officer, polling agent or

any other 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

Page 74 74

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 to voting to be followed at

elections held in accordance with the system of

proportional representation by means of the single

transferable vote;

(g) the scrutiny and counting of votes including

cases in which a recount of the votes may be

made before the declaration of the result of the

election;

(gg) the procedure as to counting of votes

recorded by means of voting machines;

(h) the safe 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,

Page 75 75

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 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 case(s) in

which a charge (s) has/have been framed by the court(s) of

competent jurisdiction.

If the deponent is accused of any such offence(s) he shall

furnish the following information:-

(i) The following case(s) is /are pending against me in

which charges have been framed by the court for an

offence punishable with imprisonment for two years or

more :-

(a) Case/First Information Report

No./ Nos. together with complete

details of concerned Police

Station/District/State

(b) Section(s) of the concerned

Act(s) and short description of the

offence(s) for which charged

Page 76 76

(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 the Court, Case No.

and date of order taking

cognizance:

(b) The details of cases where the

court has taken cognizance,

section(s) of the Act(s) and

description of the offence(s) for

which cognizance taken

(c) Details of

Appeal(s)/Application(s) for

revision (if any) filed against the

above order(s)

(6) I have been/have not been convicted, of an offence(s)

[other than any offence (s) referred to in sub-section (1) or

sub-section (2), or covered in sub-section (3), of section 8

of the Representation 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)

Page 77 77

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 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 which have been mentioned in Clause 5(i) of Form

Page 78 78

26. Apart from the aforesaid, Clause 6 of Form 26 deals with

conviction.

70.The singular question is, if a candidate, while filing his

nomination paper does not furnish the entire information

what would be the resultant effect. In Resurgence India

(supra), the Court has held that if a nomination paper is filed

with particulars left blank, the Returning Officer is entitled to

reject the nomination paper. The Court has proceeded to

state that candidate must take the minimum effort to

explicitly remark as ‘Nil’ or ‘Not Applicable’ or ‘Not known’ 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 reads as follows:

“While no exception can be taken to the insistence

of affidavit with regard to the matters specified in

the judgment in Assn for Democratic Reforms

case, the direction to reject the nomination paper

Page 79 79

for furnishing wrong information or concealing

material information and providing for a summary

enquiry at the time of scrutiny of the nominations,

cannot be justified. In the case of assets and

liabilities, it would be very difficult for the

Returning Officer to consider the truth or

otherwise 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 Election Commission is required

to revise its instructions in the light of directions

issued in Assn for Democratic Reforms case and as

provided under the Representation of the People

Act and its third Amendment.”

In Resurgence India (supra), the aforequoted said

paragraph 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

Page 80 80

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 paper if the said affidavit is

filed with 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

objections are raised, the nomination paper would be liable

for rejection. However, we may hasten to clarify that it is

not the issue involved in the present case. The controversy

which has emanated in this case is whether non-furnishing

of the information while filing an affidavit pertaining to

criminal cases, especially cases involving heinous or serious

crimes or relating to corruption or moral turpitude would

Page 81 81

tantamount to corrupt practice, regard being had to the

concept of undue influence. 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(3) and 49-O of the Rules. In

Association for Democratic Reforms (supra), it has been

held thus:

“For health of democracy and fair election,

whether the disclosure of assets by a candidate,

his/her qualification and particulars regarding

involvement in criminal cases are necessary for

informing voters, maybe illiterate, so that they can

decide intelligently, whom to vote for. In our

opinion, the decision of even an illiterate voter, if

properly educated and informed about the

contesting candidate, 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

Page 82 82

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 same can be at best be achieved through

persons of high moral and ethical values who win the

elections on a positive vote. Needless to say, the

observations were made in the backdrop of negative voting.

73.In Manoj Narula (supra) the court, while discussing

about democracy and the abhorrent place the corruption

Page 83 83

has in a body polity, has observed that a democratic polity,

as understood in its quintessential purity, is conceptually

abhorrent to corruption and, 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

affirmance of constitutional morality which is the pillar stone

of good governance. While dealing with the concept of

democracy, the majority in Indira Nehru Gandhi v. Raj

Narain

53

, stated that “democracy” as an essential feature of

the Constitution is unassailable. The said principle was

reiterated in T.N. Seshan, CEC of India v. Union of

India

54

and Kuldip Nayar v. Union of India

55

. It was

pronounced with asseveration that democracy is the basic

and fundamental structure of the Constitution. There is no

53

(1975) Supp SCC 1

54

(1995) 4 SCC 611

55

(2006) 7 SCC 1

Page 84 84

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 offences would

disqualify a person for being a Member either of House of

Parliament or the Legislative Assembly or Legislative Council

of a State. We repeat at the cost of repetition unless a

person is disqualified under law to contest the election, he

cannot be disqualified to contest. But the question is when

an election petition is filed before an Election Tribunal or the

High Court, as the case may 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

Page 85 85

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 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

Page 86 86

purpose, that is, disclosure of information to be chosen as a

representative to an elected body.

75. The sanctity of the electoral process imperatively

commands that each candidate owes and is under an

obligation that a fair election is held. Undue influence

should not be employed to enervate and shatter free

exercise of choice and selection. No candidate is entitled to

destroy the sacredness of election by indulging in undue

influence. The basic concept of “undue influence” relating

to an election is voluntary interference or attempt to

interfere with 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 say that this Court in certain decisions, as has been

noticed earlier, laid down what would constitute “undue

Page 87 87

influence”. The said pronouncements were before the

recent decisions in PUCL (supra), PUCL (NOTA) (supra) and

Association of Democratic Reforms (supra) and other

authorities pertaining to corruption were delivered. That

apart, the statutory provision contained in Sections 33, 33A

and Rules have been incorporated.

76.In this backdrop, we have to appreciate the spectrum of

“undue influence”. 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

56

, the Court observed that:

“Clean, efficient and benevolent administration

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

56

(2001) 3 SCC 594

Page 88 88

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 right would not be an advised one. He

will be exercising his franchisee with the misinformed mind.

That apart, his fundamental right to know also gets nullified.

The attempt has to be perceived as creating an impediment

in the mind of a voter, who is expected to vote to make a

free, informed and advised choice. The same is sought to

be scuttled at the very commencement. It is well settled in

Page 89 89

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

57

, Election Commission of

India V. Shivaji

58

and V.S. Achuthanandan V. P.J. Francis

and Another

59

. We have also culled out the principle that

corrupt practice can take place prior to voting. The factum

of non-disclosure of the requisite information as regards the

criminal antecedents, as has been stated hereinabove is a

stage prior to voting.

79.At this juncture, it will be appropriate to refer to certain

instructions issued from time to time by the Election

Commission of India. On 2.7.2012, the Election Commission

of India has issued the following instructions:

“To

The Chief Electoral Officer of all

States and UTs.

Sub:- Affidavit filed by candidates along with their

nomination papers-dissemination thereof.

Sir/Madam,

Please refer to the Commission’s instructions

regarding dissemination of information in the

affidavits filed by the candidates along with the

57

AIR 1955 SC 233

58

(1988) 1 SCC 277

59

(1999) 3 SCC 737

Page 90 90

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 limits of the

constituency. Further, affidavits of all contesting

candidates are required to be uploaded on the

website of the CEO

2.There are complains at times that in the

absence of adequate publicity/awareness

mechanism, the general public is not sensitized

about the availability of the affidavits filed by the

candidates with the result that the affidavits do

not fully serve the intended purpose of enabling

the electors to know the background of the

candidates so as to enable them to make an

informed 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 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

Page 91 91

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 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 the relevant para:

“From the year 2004 onwards, the affidavits of

candidates are being uploaded on the website of

the CEO. However, the same is not done in

respect of counter affidavits filed, if any. The

Commission has now decided that henceforth, all

counter affidavits (duly notarized) filed by any

person against the statements in the affidavit filed

by the candidate shall also be uploaded on the

website alongwith the affidavit concerned. Such

uploading should also be done within 24 hours of

filing 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

Page 92 92

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 copies of

affidavits are displayed on the notice board of the

Returning Officer for dissemination of information.

In case the office of the ARO is at a place different

from the office of the RO, then a copy each of the

affidavits is also displayed on the notice board in

ARO’s office. If the offices of the both RO and ARO

are outside the territorial limits of the

constituency, copies of the affidavits are to be

displayed at a prominent public place within the

constituency. Further, if any one seeks 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 of displaying the abstracts part of the

affidavit as given in PART-II of the 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

Page 93 93

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 elections to Lok Sabha

Legislative Assembly and Legislative Council

constituencies. These instructions will not apply to

elections to Council of States and State Legislative

Council by MLAs as only elected representatives

are electors 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. Chengalvaraya Naidu (Dead) By LRs V. Jagannath

Page 94 94

(Dead) By LRs & Others

60

. While filing the nomination

form, if the requisite information, as has been highlighted by

us, relating to criminal antecedents, are not given,

indubitably, there is an attempt to suppress, effort to

misguide and keep the people in dark. This attempt

undeniably and undisputedly is undue influence and,

therefore, amounts to corrupt practice. It is necessary to

clarify here that if a candidate gives all the particulars 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 cost of repetition, it has to be determined in an

election petition by the Election Tribunal.

84.Having held that, we are required to advert to the

factual matrix at hand. As has been noted hereinbefore, the

appellant was involved in 8 cases relating to embezzlement.

60

(1994) 1 SCC 1

Page 95 95

The State Election Commission had issued a notification.

The relevant part of the said notification reads as under:-

“1.Every candidate at the time of filing his

nomination paper for any election or casual

election for electing a member 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 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 non-

furnishing 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

Page 96 96

and also by making the copies thereof available to

all other candidate on demand and to the

representatives of the print and electronic media.

5.If any rival candidate furnished information to

the contrary, by means of a duly sworn affidavit,

then such affidavit of the rival candidate shall also

be disseminated along with the affidavit of the

candidate concerned in the manner directed

above.

6.All the Returning Officers shall ensure that the

copies of the affidavit/declaration, prescribed

herein by the Tamil Nadu State Election

Commission in the Annexure 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 ground. The factum of

suppression of the cases relating to embezzlement has been

established. Under these circumstances, there is no need to

advert to the authorities which are cited by the learned

counsel for the appellant that it has no material particulars

and there was no ground for corrupt practice. In fact, in a

Page 97 97

way, it is there. The submission of the learned counsel for

the appellant that he has passed up to Class X and,

therefore, was not aware whether he has to give all the

details as he was under the impression that all the cases

were one 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.

86.In view of the above, we would like to sum up our

conclusions:

(a)Disclosure of criminal antecedents of a candidate,

especially, pertaining to heinous or serious offence or

offences relating to corruption or moral turpitude at the time

of filing of nomination paper as mandated by law is a

categorical imperative.

(b)When there is non-disclosure of the offences pertaining

to the areas mentioned in the preceding clause, it creates an

impediment 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

Page 98 98

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

Rs.50,000/-.

..........................., J.

(Dipak Misra)

Page 99 99

..........................., J.

(Prafulla C. Pant)

New Delhi

February 05, 2015