As per the case facts, the appellant's election as a Councilor was set aside by an Additional District Judge, which was confirmed by the High Court. The initial election petition ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 82618262 OF 2022
(Arising out of S.L.P. (Civil) Nos.3084930850 of 2018)
RAVI NAMBOOTHIRI ...APPELLANT(S)
Versus
K.A. BAIJU & ORS. ...RESPONDENT(S)
J U D G M E N T
V. RAMASUBRAMANIAN, J.
Leave granted.
2.Aggrieved by the Judgment passed by the High Court of
Kerala, confirming an order passed by the Additional District Judge
setting aside his election as Councilor of Ward No.5 of Annamanada
Gram Panchayath, in the elections held in November2015, the
elected candidate has come up with the above appeals.
3.We have heard the learned counsel for the respective parties.
4.The brief facts essential for the disposal of the above appeals
are as follows:
(i)On 5112015, elections to the Annamanada Gram
1
Panchayath were held. Apart from others, the
appellant and respondent No.1 contested from Ward
No.5.
(ii)On 7.11.2015, the appellant was declared as having
been elected from Ward No.5.
(iii)Respondent No.1 filed an Election Petition on the
file of the District Munsif Court, on 4.12.2015
challenging the election of the appellant.
(iv)By a Judgment dated 19.11.2016, the Election
Petition was dismissed by the District Munsif Court,
primarily on the ground that there was no prayer in
the Election Petition to declare the election of the
appellant as void, on the grounds stipulated in
Section 102 of the Kerala Panchayat Raj Act. There
was actually a prayer for cancelling the election held
on 5.11.2015.
(v)Aggrieved by the dismissal of the Election Petition,
respondent No.1 filed an appeal in the Court of the
Additional District Judge. The appeal was allowed
by a Judgment dated 18.06.2018 and the election of
the appellant was declared as void on the ground
that the appellant suppressed in his nomination
form, his involvement in a criminal case and that
therefore he had committed a corrupt practice.
(vi)Aggrieved by the said judgment of the District
Court, the appellant filed a revision petition before
the High Court. The Revision Petition was dismissed
2
by an Order dated 30.10.2018. The appellant filed a
petition for review, but the same was also dismissed
by the High Court. Therefore, challenging the order
passed in the Revision Petition and the order passed
in the Review Petition, the appellant has come up
with two appeals.
5.The allegation that the appellant suppressed his involvement
in a criminal case and thereby adopted a corrupt practice, arose
under very peculiar circumstances, which are as follows:
(i)On the allegation that on 20.09.2006, a group of
about 40 persons, which included the appellant
herein, formed themselves into an unlawful
assembly and committed criminal trespass into the
office compound of the Annamanada Gram
Panchayath and put up a temporary shed for
conducting a dharna, 22 persons were prosecuted
before the Judicial First Class Magistrate Court,
Chalakudy, for alleged offences under Sections 143,
283 and 447 read with Section 149 of the Indian
Penal Code. The appellant herein was cited as
accused No.1 and he was also prosecuted
additionally for an offence under Section 38 read
with Section 52 of the Kerala Police Act.
(ii)By a Judgment dated 07.06.2010 passed in CC
No.1606 of 2006, the trial Court convicted only A1
3
and A2. The appellant herein who was A1, was
convicted for the offence under Section 143 IPC and
sentenced to simple imprisonment for a period of
three months together with a fine of Rs.2000/. He
was also convicted for the offence under Section 283
and sentenced to pay a fine of Rs.200/. For the
offence under Section 447, the appellant was
ordered to undergo simple imprisonment for a
period of one month and also to pay a fine of
Rs.500/. Additionally, the appellant was convicted
for the offence under Section 52 of the Kerala Police
Act and sentenced to pay a fine of Rs.200/.
(iii)The appellant as well as A2 filed a statutory appeal
before the Sessions Court, Thrissur. By a Judgment
dated 17.01.2012, the appeal was partly allowed
and the conviction of the appellant for the offences
under Sections 143, 447 and 283 read with Section
149 IPC was set aside. However, the conviction of
the appellant herein for the offence under Section
38 read with Section 52 of the Kerala Police Act and
the sentence of a fine of Rs.200/ imposed upon
him, was upheld by the First Appellate Court.
(iv)Since the appellant is involved in active electoral
politics and his conviction by the criminal Court
related to a dharna organized by him, the appellant
did not pursue the matter further before the High
4
Court against a mere conviction under Section 38
read with Section 52 of the Kerala Police Act.
(v)However, while filing his nomination in the elections
to the Panchayat held in November2015, the
appellant failed to disclose, in Form No.2A, under
Rule 6 of the relevant Rules, his conviction under
Section 38 read with Section 52 of the Kerala Police
Act, 1961. Therefore, his election was challenged by
respondent No.1 and the matter has now landed up
before this Court.
6.In the Kerala Panchayat Raj Act, 1994 (hereinafter referred to
as “the Act”), an amendment was made in the year 2005, by Act 30
of 2005 with effect from 22.08.2005. One of the amendments
introduced by the said Act, was the insertion of subsection (1A) in
Section 52. Section 52 (1A) reads as follows:
“52. Presentation of nomination paper and requirements
for a valid nomination.
(1A) Every candidate submitting nomination under sub
section (1) shall not be deemed to be qualified to be elected
to fill that post unless he submits, along with such
nomination, the details regarding his educational
qualification, criminal cases in which he is involved at
the time of submission of nomination, property owned by
him and other members of his family, liabilities including
arrears due from him to any Public Sector Undertaking or
Government or Local Self Government Institutions and
whether disqualifies for defection under the Kerala Local
Authorities (Prohibition of Defection) Act, 1999 in the form
and manner as may be prescribed."
7.Though the language employed in subsection (1A) of Section
5
52 mandated only the disclosure of the details regarding “ the
criminal cases in which he is involved at the time of
submission of nomination”, the High Court invoked Rule 6 of the
Kerala Panchayat Raj (Conduct of Election) Rules, 1995 to hold
that the suppression of any information relating to past conviction
may also amount to suppression of “involvement in a criminal
case”.
8.Rule 6 of the Kerala Panchayat Raj (Conduct of Election)
Rules, 1995 reads as follows:
“6.Nomination of candidates. (1) A candidate shall be
nominated by means of a nomination paper in Form No.2
and on an application in that behalf of an elector in the
electoral roll of any constituency of concerned Panchayat,
the Returning Officer shall provide him Form NO. 2 free of
cost.
(2)Every candidate shall make and subscribe an oath or
affirmation before the Returning Officer or the person
authorized by the State Election Commission in the Form
specified in the First Schedule of the Act.
(2a)Every candidate shall submit before the Returning
officer, the details in form No. 2A along with the nomination
paper.
(3)The Returning Officer shall, immediately on receipt of
the nomination paper, number them serially in the order of
their presentation and shall note the date and time of its
presentation in each nomination paper and shall issue a
receipt attached to Form No. 2.”
9. The relevant column of Form No. 2A referred to in Rule 6
reads as follows:
“1. The following criminal cases are pending against me for
6
trial before the court/I have been convicted by the court in
criminal cases.
a. XXXX
(b)Those in which punished
(i)Case number
(ii)Name and place of court
(iii)Description of the offence for which punishment was
awarded
(iv)Sections of the concerned Act under which
punishment was awarded
(v)Punishment awarded (period of
imprisonment/quantum of fine imposed) etc.
(vi)Date of sentence
(vii)Details regarding appeal, revision etc. filed against the
sentence.”
10.The reasoning of the High Court was that any failure to
disclose the correct information regarding the past conviction by a
criminal court, would tantamount to suppression of information
relating to “involvement in a criminal case ”. The High Court
reasoned (i) that insofar as elections to the State Assemblies and
Parliament are concerned, Section 33A of the Representation of the
People Act, 1951 requires the disclosure of only those convictions
where a sentence of imprisonment for one year and more had been
imposed; and (ii) but that the rules framed in Kerala relating to the
elections to Panchayats are more stringent, as they require the
disclosure of any involvement in any criminal case. The High Court
opined that the Court was obliged to keep in mind the object of
such requirement, in the light of the principles laid down by this
7
Court in Union of India vs. Association for Democratic
Reforms and Anr.
1
and People’s Union for Civil Liberties (PUCL)
and Anr. vs. Union of India and Anr.
2
.
11.Assailing the Judgment of the High Court, it was argued by
Shri Ragenth Basant, learned counsel appearing for the appellant
that the nondisclosure of the conviction for a petty offence and that
too relating to the holding of a dharna on a political issue, cannot
be termed as “undue influence” within the meaning of Section 120(2)
of the Act and that, therefore, the election of the appellant ought
not to have been declared void on the ground that it was vitiated by
corrupt practice under Section 102(1)(b) of the Act. It was also
contended by the learned counsel that the reliance placed by the
First Appellate Court on the decision of this Court in
Krishnamoorthy vs. Sivakumar & Ors .
3
was misplaced.
According to the learned counsel, the nondisclosure of criminal
antecedents pertaining to heinous or serious offences involving
corruption or moral turpitude alone would tantamount to corrupt
practice. It is also further contended by the learned counsel for the
appellant that the requirement of a disclosure in terms of Section
1 (2002) 5 SCC 294
2 (2003) 4 SCC 399
3 (2015) 3 SCC 467
8
52(1A) relates only to the involvement in a criminal case at the time
of submission of the nomination and that therefore, the
requirement under Rule 6 cannot be read as enlarging the scope of
Section 52(1A). According to the learned counsel for the appellant,
even the ground under Section 102(1)(ca) of the Act cannot be
invoked as the same is concerned with a situation where the details
furnished by the elected candidate were shown to be fake.
Therefore, the learned counsel contended that the First Appellate
Court and the High Court were completely in error in declaring the
election of the appellant to be void.
12.Supporting the judgment of the High Court it was contended
by Shri P.V. Surendranath, learned senior counsel for respondent
No.1 (Election Petitioner) that the deliberate suppression by the
appellant, in the nomination form filed in Form 2A, of his conviction
for a criminal offence, squarely fell within the definition of the
expression “undue influence” under Section 120(2) of the Act.
According to the learned senior counsel for respondent No.1, the
Court is obliged to keep in mind the fact that Section 33B of the
Representation of the People Act, 1951, was brought in by the
Parliament to nullify the effect of the decision in Association for
9
Democratic Reforms and Anr (supra). But Section 33B was
declared unconstitutional in People’s Union for Civil Liberties
(supra). Relying upon the decision in Resurgence India vs.
Election Commission of India and Anr.
4
, it was contended by the
learned senior counsel for respondent No.1 that the filing of an
affidavit with blank particulars has also been held to be a ground to
reject the nomination papers.
13.We have carefully considered the rival contentions. Before we
proceed to consider the rival contentions, we must point out that
the case on hand relates to an election to the Panchayat held in
November2015. The term of office of the appellant is already over.
But if the Judgment of the High Court is found to be correct, the
appellant might have incurred a disqualification. Therefore, a
decision on merits in this case is not a mere academic exercise and
hence we have to deal with the rival contentions.
14.To test the correctness of the decision of the High Court, we may
have to begin our discussion from Section 102 of the Act. Section 102
of the Act reads as follows:
“102. Grounds for declaring election to be void. (1)
Subject to the provisions of subsection (2) if the Court is of
opinion –
4 (2014) 14 SCC 189
10
(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 this Act; 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
(ca) that the details furnished by the elected candidate
under subsection (1A) of section 52 were fake; or
(d) that the result of the election, in so far 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 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 noncompliance with the provisions of
this Act or of any rules or orders made
thereunder, the Court shall declare that the
election of the returned candidate to be void.
(2) If in the opinion of the Court a returned candidate has
been guilty by an agent, other than his election agent, of any
corrupt practice but the Court is satisfied. –
(a) that no such corrupt practice was committed at the
election by the candidate or his election agent, and
every such corrupt practice was committed contrary to
the orders, and without the consent, of the candidate or
his election agent;
(b) that the candidate and his election agent took all
reasonable means for preventing the commission of
corrupt practices at the election; and
(c) that in all other respects the election was free from
any corrupt practice on the part of the candidate or any
of this agents, then the Court may decide that the
election of the returned candidate is not void.
Explanation. In this section the term “agent” has the same
11
meaning as in section 120.”
15.As seen from subsection (1) of Section 102, the election of a
candidate can be declared void, under five different contingencies.
They are: (i) that the returned candidate was not qualified or was
disqualified on the date of his election; (ii) that any corrupt practice
has been committed by the returned candidate or his election agent
or by any other person with the consent of the returned candidate
or his agent; (iii) that any nomination had been improperly rejected;
(iv) that the details furnished by the elected candidate under sub
section (1A) of Section 52 were fake; and (v) that the result of the
election, insofar it concerns the returned candidate, has been
materially affected either by the improper acceptance of any
nomination or by any corrupt practice committed in the interest of
the returned candidate by an agent other than his election agent or
by the improper reception, refusal or rejection of any vote or the
reception of any vote which is void or by any noncompliance with
the provisions of this Act or of any Rules or orders made
thereunder.
16.Interestingly, subsection (1) of Section 102 places the first
four contingencies listed in the preceding paragraph, {which are
12
relatable to clauses (a), (b), (c) and (ca) of subsection (1)} on a
different footing than the fifth contingency {relatable to clause (d)}.
The difference between clauses (a), (b), (c) and (ca) on the one hand
and clause (d) of subsection (1) of Section 102 on the other hand is
this. For setting aside an election under any one or more of the
contingencies mentioned in clauses (a), (b), (c) and (ca), it is not
necessary for the Court to find if the result of the election, insofar
as it concerns the returned candidate, has been materially affected
or not.
17.In contrast, for holding an election to be void on the ground of
improper acceptance of any nomination or the commission of a
corrupt practice by any other agent, but in the interest of the
returned candidate or the improper reception, refusal or rejection of
any vote or the reception of any vote which is void or non
compliance with the provisions of the Act, the Rules or orders, the
Court must be satisfied that the result of the election has been
materially affected.
18.In other words subsection (1) of Section 102 places, (i) non
qualification/disqualification of the returned candidate;
(ii) commission of any corrupt practice by the returned candidate or
13
his election agent or any other person with the consent of the
returned candidate or his election agent; (iii) the improper rejection
of any nomination; and (iv) the furnishing of details under Section
52(1A) which are fake, on a much higher pedestal. If a challenge is
made to the election of a candidate on any one of these four
grounds, it is not necessary to show that the result of the election
has been materially affected.
19.Subsection (1) of Section 102 places, (i) improper acceptance
of any nomination; (ii) commission of any corrupt practice in the
interest of the returned candidate, but by any agent other than his
own election agent; (iii) the improper reception, refusal or rejection
of any vote or the reception of any vote which is void; and (iv) the
noncompliance with the provisions of the Act or any Rules or
orders made thereunder, in one group or class, where the Court is
obliged to look into an additional factor namely whether the result
of the election was materially affected due to any of these factors.
20.The expression “corrupt practice” is defined in Section 120 of the
Act which reads as follows:
“120. Corrupt practices. The following shall be deemed to
be corrupt practices for the purposes of this Act –
(1) “Bribery”, that is to say,
14
(A) any gift, offer or promise by a candidate or his
agent or by any other person with the consent of a candidate
or his election agent of any gratification, to any person
whomsoever, with the object, directly or indirectly of
inducing –
(a) a person to stand or not to stand as, or to
withdraw or not to withdraw from being a candidate
at an election, or
(b) an elector to vote or refrain from voting at an
election, or as a reward to –
(i) a person for having so stood, or not stood, or for
having withdrawn or not having withdrawn his candidature;
or
(ii) an elector for having voted or refrained from
voting;
(B) the receipt of, or agreement to receive, any
gratification, whether as a motive or a reward –
(a) by a person for standing or not standing
as, or for withdrawing or not withdrawing from being, a
candidate; or
(b) by any person whomsoever for himself or any
other person for voting or refraining from voting, or inducing
or attempting to induce any elector to vote or refrain from
voting, or any candidate to withdraw or not to withdraw his
candidature.
Explanation. For the purposes of this clause the
term ‘gratification’ is not restricted to pecuniary
gratifications or gratifications estimable in money and it
includes all forms of entertainment and all forms of
employment for reward but it does not include the payment
of any expenses bona fide incurred at, or for the purpose of,
any election and duly entered in the account of election
expenses referred to in Section 85.
(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 –
(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 is interested, with
injury of any kind including social ostracism and ex
communication or expulsion from any caste or
community; or
15
(ii) induces or attempts 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 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 clause.
(3) The appeal by a candidate or his agent or by any
other person with the consent of a candidate or his election
agent to vote or refrain from voting for any person on the
ground of his religion, race, caste, community or
language or the use of, or appeal to religious symbols or the
use of, or appeal to national symbols such as the national
flag or the national emblem for the furtherance of the
prospects of the election of that candidate or for prejudicially
affecting the election of any candidate:
Provided that no symbol allotted under any rules made
under this Act to a candidate shall be deemed to be a
religious symbol or a national symbol for the purposes of
this clause.
(4) The promotion of, or attempt to promote, feelings of
enmity or hatred between different classes of the citizens of
India on grounds of religion, race, caste, community, or
language, by a candidate or his agent or any other person
with the consent of a candidate or his election agent for the
furtherance of the prospects of the election of that candidate
or for prejudicially affecting the election of any candidate.
(5) The publication by a candidate or his agent or by
other person, with the consent of a candidate or his election
agent, of any statement of fact which is false, and which
he either believes to be false or does not believe to be true, in
relation to the personal character or conduct of any
candidate, or in relation to the candidature, or withdrawal,
of any candidate being a statement reasonably calculated to
prejudice the prospects of that candidate’s election.
(6) The hiring or procuring, whether on payment or
otherwise, of any vehicle or vessel by a candidate or his
agent or by any other person with the consent of a candidate
or his election agent, or the use of such vehicle or vessel for
the free conveyance of any elector (other than the candidate
himself, the members of his family or his agent) to or
16
from any polling station provided under section 45:
Provided that the hiring of a vehicle or vessel by an
elector or by several electors as their joint cost for the
purpose of conveying him or them to and from any such
polling station or place fixed for the poll shall not be deemed
to be a corrupt practice under this clause if the vehicle or
vessel so hired is a vehicle or vessel not propelled by
mechanical power:
Provided further that the use of any public transport,
vehicle or vessel or any tramcar or railway carriage by any
elector at his own cost for the purpose of going to or coming
from any such polling station or place fixed for the poll shall
not be deemed to be a corrupt practice under this clause.
Explanation.–In this clause, expression ‘vehicle’ means
any vehicle used or capable of being used for the purpose of
road transport, whether propelled by mechanical power or
otherwise and whether used for drawing other vehicles or
otherwise.
(7) The incurring or authorising of expenditure in
contravention of section 85.
(8) The obtaining or procuring or abetting or attempting
to obtain or procure by a candidate or his agent or, by any
other person with the consent of a candidate or his
election agent, any assistance (other than the giving of vote)
for the furtherance of the prospects of that candidate’s
election, from any person in the service of a Panchayat or of
Government, and belonging to any of the following classes,
namely:
(a) gazetted officers;
(b) members of police forces;
(c) excise officers;
(d) revenue officers; and
(e) such other class of persons in the service of the
Government as may be prescribed;
Provided that where any person, in the service of the
Government and belonging to any of the classes aforesaid, in
the discharge or purported discharge of his official duty,
makes any arrangements or provides any facilities or does
any other act or thing, for, to, or in relation to, any candidate
or his election agent or any other person acting with the
consent of the candidate or his election agent, (whether by
reason of the office held by the candidate or for any other
reason), such arrangements, facilities or act or thing shall
17
not be deemed to be assistance for the furtherance of the
prospects of that candidates election.
(9) Booth capturing by a candidate or his agent or other
person acting with the consent of the candidate or his
election agent.
Explanation 1.– In this section the any expression
“agent” includes an election agent, a polling agent and any
person who is held to have acted as an agent in connection
with the election with the consent of the candidate.
Explanation 2.– For the purposes of clause (8), a
person shall be deemed to assist in the furtherance of the
prospects of a candidate’s election if he acts as an election
agent of that candidate.
Explanation 3.– For the purposes of clause (8),
notwithstanding anything contained in any other law, the
publication in the Gazette of the appointment, resignation,
termination of service, dismissal or removal from service of a
person in the service of the Government or of a Panchayat
shall be conclusive proof –
(i) of such appointment, resignation, termination of
service, dismissal or removal from service, as the case may
be, and
(ii) where the date of taking effect of such
appointment, resignation, termination of service, dismissal
or removal from service as the case may be, is stated in such
publication; also of the fact that such person was appointed
with effect from the said date, or in the case of resignation,
termination of service, dismissal or removal from service,
such person ceased to be in such service with effect from the
said date.
Explanation 4.– For the purposes of clause (9), “booth
capturing” shall have the same meaning as in section 137.”
21.The argument of respondent No.1 is that the case would fall
squarely under Section 102(1)(ca), which deals with the furnishing
of details under Section 52(1A), but which are fake. Alternatively, it
is suggested that the case would fall under Section 102(1)(b) which
deals with the commission of any corrupt practice by the returned
18
candidate. Since the expression “corrupt practice” is defined in
Section 120(2) to include ‘undue influence with the free exercise of
any electoral right’, it is argued by the respondent No.1 that the
case may fall under Section 102(1)(b) also, in view of the law laid
down in Krishnamoorthy (supra)
22.We have our own doubts about the second limb of the
argument of the learned senior counsel for respondent No.1. The
second limb of his argument is that the failure to disclose correct
information in Form 2A would tantamount to ‘undue influence on
the free exercise of the electoral right’, which comes within the
definition of the expression “corrupt practice” under section 120 of
the Act. Inspiration for this argument arises from the decision of
this Court in Krishnamoorthy (supra).
23.Interestingly, the decision of this Court in Krishnamoorthy
arose out of a judgment of the Madras High Court, authored by one
of us (VRS,J.)
5
. It was a case where the elected candidate failed to
disclose in the affidavit and declaration form accompanying the
nomination, details regarding the criminal cases pending against
him. Such details were required to be furnished in terms of the
5 The judgment of the Madras High Court dated 1562009 was affirmed by this court.
19
Notification issued by the State Election Commission in exercise of
the powers conferred by Articles 243K and 243ZA of the
Constitution, read with the relevant provisions of the various
Tamilnadu State enactments dealing with local bodies. The election
of the returned candidate was challenged in that case under the
provisions of Section 259 read with Section 260 of the Tamil Nadu
Panchayats Act, 1994. While section 259 of the Tamil Nadu Act
dealt with the grounds on which an election can be declared as
void, Section 260 of the Act defined what are corrupt practices.
Section 259 of the Tamil Nadu Act is similar, though not in pari
materia to Section 102 of the Kerala Act and Section 260 of the
Tamil Nadu Act is similar to Section 120 of the Kerala Act. Section
259(1) of the Tamil Nadu Act and Section 102(1) of the Kerala Act
are presented in a tabular column so that the difference between
them can be appreciated:
Section 259 of Tamil Nadu ActSection 102 of Kerala Act
259. Grounds for declaring elec
tions 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 quali
fied or was disqualified, to be cho
sen as a member under this Act, or,
(b) that any corrupt practice has
102. Grounds for declaring election to
be void. –
(1) Subject to the provisions of sub
section (2) if the 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 this Act; or
(b) that any corrupt practice has been
committed by a returned candidate or
20
been committed by a returned can
didate or his agent or by any other
person with the consent of a re
turned candidate or his agent, or
(c) that any nomination paper has
been improperly rejected, or
(d) that the result of the election in
sofar as it concerns a returned can
didate has been materially affected
(i) by the improper acceptance of
any nomination, or
(ii) by any corrupt practice commit
ted in the interests of the returned
candidate by a person other than
that candidate or his agent or a per
son 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 noncompliance 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.
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
(ca) that the details furnished by the
elected candidate under subsection
(1A) of section 52 were fake; or
(d) that the result of the election, in so
far 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 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 noncompliance with the
provisions of this Act or of any rules or
orders made thereunder, the Court
shall declare that the election of the
returned candidate to be void.
24.The crucial difference between the Tamil Nadu Act and the
Kerala Act, is the insertion of clause (ca) in subsection (1) of
Section 102. Subsection (1A) of Section 52 and clause (ca) of sub
section (1) of Section 102 were inserted by Kerala Panchayat Raj
(Amendment) Act, 30 of 2005. The decision in Krishnamoorthy
arose at a time, place and circumstance (i) when the disclosure
regarding criminal antecedents was made mandatory only under
the Notifications of the State Election Commission; and (ii) the non
21
disclosure was not yet made a ground in the Statute, for declaring
the election as void. Therefore, the Court found (proactively), a
provision already available in the Statute at that time, namely
‘undue influence in the free exercise of electoral right’ and held that
the nondisclosure had an undue influence on the free exercise of
choice of the voter.
25.The decision of the Madras High Court in Krishnamoorthy,
traces the historical perspective of the election law relating to
disclosure of criminal antecedents, as follows:
(i) In the year 1999, the Association for Democratic Reforms filed a
Writ Petition on the file of the Delhi High Court, seeking a direction
to the Union of India to implement the recommendations made by
the Law Commission in its 170th Report and to make necessary
changes under Rule 4 of Conduct of Election Rules, 1961. One of
the recommendations made by the Law Commission was for
debarring a candidate from contesting an election, if charges have
been framed against him by a Court in respect of certain offences
and the necessity for the candidates to furnish details of the
criminal cases pending against them. Apart from the
recommendations of the Law Commission, the Association for
22
Democratic Reforms (hereinafter referred to as "ADR" for the sake of
brevity) also relied upon the Report of the Vohra Committee of the
Government of India, Ministry of Home Affairs, which pointed out
the nexus between politicians and those accused of criminal
offences. In the light of the Reports of the Law Commission and the
Vohra Committee, ADR sought, in the writ petition filed before the
Delhi High Court, a direction to the Election Commission, to make
it mandatory for every candidate to provide information, by
amending Forms 2A to 2E prescribed under the Conduct of
Election Rules, 1961.
(ii) Though the Delhi High Court held, by its judgment dated
02.11.2000, that it is the function of the Parliament and not that of
the Court, to make necessary amendments in the Representation of
the People Act, 1951, the Delhi High Court nevertheless issued a
direction to the Election Commission to secure to the voters, the
following information, from the contesting candidates:
“(a) Whether the candidate is accused of any offence
punishable with imprisonment and if so, the details;
(b) The assets possessed by a candidate, his or her spouse
and dependent relations;
(c) Facts giving insight into the candidate's competence,
capacity and suitability for acting as an elected member,
including details of the educational qualifications;
23
(d) Information considered necessary by the Election
Commission for judging the capacity and capability of the
political party fielding the candidate for election.”
(iii) The above directions issued by the Delhi High Court was on the
basis that a citizen of the country, whether an elector or not, has a
fundamental right to receive information regarding the criminal
activities of a candidate. The High Court took the view that for
making a right choice, it is essential not to keep the antecedents of
the candidate in the dark, as it will not be in the interest of
democracy and the well being of the country.
(iv) The judgment of the Delhi High Court was taken on appeal to
this Court by the Union of India and it was taken up along with a
Writ Petition filed by the People's Union of Civil Liberties (referred to
as "PUCL" in short), under Article 32 seeking certain similar
directions.
(v) After hearing elaborate arguments, this Court framed two
questions, as arising for consideration in the matter and they are as
follows:
“(a) Whether the Election Commission is empowered to issue
directions, as ordered by the High Court?
(b) Whether a votera citizen of the country has a right to get
relevant information, such as the assets, qualifications and
involvement in offences, of candidates, for being educated
and informed for judging the suitability of a candidate
contesting the election as MP or MLA?”
24
(vi) After referring to various decisions, this Court summed up the
legal position in paragraph46 of its decision. The contents of
paragraph46 of the decision can be summarised in brief as
follows:
“(a) The jurisdiction of the Election Commission is wide
enough to include all powers necessary for the smooth
conduct of the elections, including the entire process of
election consisting of several stages and embracing many
steps;
(b) The limitation on the plenary character of power is when
Parliament or State Legislature has made a valid law. In case
the law is silent, Article 324 is a reservoir of power. It is a
residuary power and the phrase "superintendence, direction
and control" appearing in Article 324 (1) should be construed
liberally empowering the Election Commission to issue
orders;
(c) Fair election contemplates disclosure by the candidate of
his past, so as to give a proper choice to the candidate
according to his thinking and opinion. Even if this
stipulation is not very much effective for breaking a vicious
circle, it will be a stepinaid for the voters not to elect law
breakers as law makers;
(d) To maintain the purity of elections and to bring about
transparency, the Commission can ask details of the
expenditure incurred by political parties;
(e) The right to get information in democracy is recognised
throughout as a natural right flowing from the concept of
democracy;
(f) If the field meant for Legislature and Executive is left
unoccupied, detrimental to public interest, the Supreme
Court would have ample jurisdiction under Article 32 read
with 141 and 142 of the Constitution;
(g) Voters' right to know the antecedents including the
criminal past of the candidate contesting in the election, is
much more fundamental and basic for the survival of democ
racy.”
25
(vii) After summarising the law in paragraph46, this Court issued
certain directions in paragraph48, which read as follows:
"48. 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 as
pects 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 over
dues of any public financial institution or government dues.
(5) The educational qualifications of the candidate."
(viii) Following the above decision, the Election Commission of India
decided to amend Forms 2A to 2E appended to the Conduct of
Election Rules, 1961 and approached the Government of India
seeking suitable Amendments. But the ECI was informed by the
Government that steps were being taken in consultation with all
political parties. Therefore, finding that the time limit fixed by the
Supreme Court in the above case was running out, the ECI issued
26
an order bearing No.3/ER/2002/JSII/VolIII dated 28.6.2002
under Article 324 of the Constitution.
(ix) However, almost simultaneously with the issue of the above
order of the ECI, the President of India promulgated an Ordinance
known as "Representation of the People (Amendment) Ordinance
2002". The validity of the Ordinance was challenged by the People's
Union of Civil Liberties and a few others under Article 32. During
the pendency of the proceedings, the Ordinance was repealed and
the Representation of the People (Third Amendment) Act, 2002 was
notified with retrospective effect. By the Amendment, Sections 33
A and 33B were inserted to the Act and they read as follows:
"33A. 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 subsection (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 subsection (1) or subsection (2), or
covered in subsection (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 subsection (1) of Section 33, also
deliver to him an affidavit sworn by the candidate in a
27
prescribed form verifying the information specified in
subsection (1).
(3) The Returning Officer shall, as soon as may be after the
furnishing of information to him under subsection (1),
display the aforesaid information by affixing a copy of the
affidavit, delivered under subsection (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.
33B. Candidate to furnish information only under the Act
and the rules . Notwithstanding anything contained in any
judgment, decree or order of any Court or any direction,
order or any other instruction issued by the Election
Commission, no candidate shall be liable to disclose or
furnish any such information, in respect of his election,
which is not required to be disclosed or furnished under this
Act or the rules made thereunder."
Since the ordnance under challenge was replaced by the
Act,during the pendency of the proceedings, the pleadings
and the prayer in the writ petitions were amended so as to
confine the challenge to Section 33B.”
(x) Ultimately, a three Member Bench of this Court, in Peoples
Union of Civil Liberties, held Section 33B of the Representation
of the People Act, 1951, brought forth by the Third Amendment Act,
2002, to be unconstitutional.
(xi) After this court declared Section 33B to be unconstitutional,
the Election Commission of India issued revised orders dated
27.03.2003 requiring every candidate, at the time of filing his
nomination paper for any election to the Council of States, House of
the People, Legislative Assembly of a State or the Legislative Council
of a State having such a Council, to furnish full and complete
28
information in regard to the matters specified by this Court, in an
affidavit, the format whereof was annexed as AnnexureI to the
order.
26.Despite the judgment of this Court in PUCL, Section 100 of the
Representation of the People Act,1951 was not amended so as the
make the nondisclosure or false disclosure, as one of the grounds
for declaring an election as void. Section 100 (1) continues to
contain only four grounds for declaring an election void. These four
grounds are comparable to clauses (a), (b), (c) and (d) of Section 102
of the Kerala Panchayat Raj Act, 1994. The special feature of the
Kerala Act is the insertion of clause (1A) in Section 52 and the
insertion of clause (ca) in subsection (1) of Section 102.
27.In the Representation of the People Act, 1951 as well as the
Tamil Nadu Panchayats Act (out of which the decision in
Krishnamoorthy arose) the candidate challenging an election had
to rely upon subordinate legislation to seek a declaration that the
election was void. Nondisclosure/false disclosure was not made
available in those Statutes themselves as one of the grounds for
declaring an election void. Therefore, the Court had to fall back
upon the Rules and the Orders of the Election Commission and
29
bring those violations within the scope of “undue influence” leading
to “corrupt practice” which is available as one of the grounds.
28.In so far as the Kerala Panchayat Raj Act is concerned, there is
no necessity, after the amendment under Act 30 of 2005 to take a
circuitous route. Nondisclosure and false disclosure can straight
away be traced to Section 52(1A) and 102(1)(ca) of the Act.
29.Coming back to Section 102(1)(ca), it enables a Court to
declare the election of a returned candidate to be void, if the details
furnished by him under Section 52(1A) are found to be “ fake”.
Interestingly the Statute uses the expression “fake” and not
expressions such as “false”, “suppression” etc. The word “fake” is
not defined in the Act. Black’s Law Dictionary defines the word
“fake" to mean “to make or construct”. The Oxford Dictionary defines
“fake” as follows:
“fake – ►adj. not genuine, ►n. a person or thing this is not
genuine, ► v.1. forge or counterfeit (something). ■pretend to
feel or suffer from (an emotion or illness).
2.(fake someone out) N. Amer, informal trick or deceive
someone.
DERIVATIVES faker n. fakery n.”
30.In P. Ramanatha Aiyar’s Advanced Law Lexicon, (Volume 2, 5
th
Edition, 2017), the entry relating to the word “fake” simply directs
the reader to the entry relating to the word “forgery”. Therefore, one
30
has to go to the entry relating to the word “forgery” to understand
the meaning of the word “fake”. The entry relating to the word
“forgery” is quite long and it begins with a reference first to Section
463 of the IPC, 1860 which defines “forgery”. The entire Entry reads
as follows:
“Forgery. “Forgery” whoever makes any false document or
false electronic record, or part of a document or electronic
record, with intent to cause damage or injury, to the public
or to any person, or to support any claim or title, or to
cause any person to part with property, or to enter into any
express or implied contract, or with intent to commit fraud
or that fraud may be committed commits forgery. [IPC (45
of 1860), S. 463]
“A man’s signature of his own name may amount to forgery.”
[IPC (45 of 1860), S. 464, Expln. 1]
“While it is true that there is a distinction between fraud and
forgery, and forgery contains some elements that are not
included in fraud, forgeries are a species of fraud. In
essence, the crime of forgery involves the making, altering,
or completing of an instrument by someone other than the
ostensible maker or drawer or an agent of the ostensible
maker or drawer.” 37 CJS Forgery S. 2, at 66 (1997).
The fraudulent making or altering of an instrument that ap
parently creates or alters a legal liability of another.
The offence of making a false instrument so that it can be
accepted as genuine.
The fraudulent imitation of a document or the writing or sig
nature of a signatory in order to pass it off as written by
another.
The fraudulent making or alteration of any record, deed,
writing, instrument, register, Stamp, etc. to the prejudice of
another man’s right. (4 Comm. 247.) A false making of any
written instrument for the purpose of fraud or deceit; in
cluding every alteration of or addition to a true instrument.
(2 East’s P.Cc. 19, C. 1. 49. Tomlin)
31
Forgery has its origin in the French word ‘forger’ which signi
fies:
“….to frame or fashion a thing as the smith doth his work
upon the anvil. And it is used in our law for the fradulent
making and publishing of false writings to the prejudice of
another man’s right. (Termes de la Ley).
In WEBSTER’S Comprehensive Dictionary, International
Edn., ‘forgery’ is defined as :
“The act of falsely making or materially altering, with intent
to defraud; any writing which, if genuine, might be of legal
efficacy or the foundation of a legal liability.”
This definition as adopted in Rembert v. State, 25 AM Rep.
639. In another case, namely State v. Phelps, 34 AM Dec
672, it was laid down that forgery is the false making of
any written instrument, for the purpose of fraud or deceit.
This decision appears to be based on the meaning of
forgery as set out in Tomlin’s. Indian Bank v. Satyam Fi
bres (India) (P) Ltd., AIR 1996 SC 2592.
Forgery is the false making or materially altering with intent
to defraud, of any writing which, if genuine, might appar
ently be of legal efficacy, or the foundation of a legal liabil
ity. (2 Bishop Cr. L. sect. 523; Rembert v. State, 25 Am.
Rep. 639).
OTHER DEFINITIONS. “The false making of any written, in
strument, for the purpose of fraud or deceit.” (State v.
Phelps, 34 Am. Dec. 672.) “The fraudulent making or
alteration of a written instrument to the prejudice of the
rights of another.” “The fraudulent making of a false
writing, which, genuine, would apparently be of some legal
efficacy.”
FORGERY, UTTERING FORGED INSTRUMENT, FALSE
PRETENCES DISTINGUISHED. Where the false pretence
made use of to obtain money or property is a written
instrument, the resulting crime is sometimes forgery or the
uttering of a forged instrument, and sometimes obtaining
property by false pretence. If the instrument used is false
in itself and is one which if genuine would create some
right or liability, obtaining property on the faith of it is
forgery or the uttering of a forged instrument as the
case may be. [People v. Peacock, 6 Con. (NY) 72]
Forgery constitutes fraud, and no legal title passes to the
transferee. [Thorappa Devanappa v. Umedmalji , AIR 1924
Bom 205, 87 IC 226, 25 Bom LR 604; Brij Basi v. Moti Ram,
AIR 1982 All 323; Banku Behari Sikdar v. Secretary of State
32
for India in Council, (1909) ILR 36 Cal 239; Karachi Bank v.
Kodumal Kalumal, AIR 1923 Sind 54; Firm Kalka Pd Ram
Charan v. L Kunwar Lal Thapper, AIR 1957 All 104;
Kodumal Kalumal v. Karachi Bank Ltd., AIR 1921 Sind 172;
Mahabir Prasad Bubna v. Union Bank of India , AIR 1992
Cal 270]
Bankers are specially protected under special conditions
against claims based on forged documents [See the
Negotiable Instruments Act, 1881, S. 85]
Since forging prejudices the person whose signature has
been forged, no action is maintainable on the promissory
note even against the real executant of the note. [Satya
Narayan Tewari v. Sital Missir, AIR 1934 Rang 345, 153 IC
631]”
31.A reading of the above entry in the Law Lexicon shows that the
word “forgery” has its origin in French, signifying “the framing or
fashioning of a thing as the smith doth his work upon the
anvil.” Essentially “forgery” appears to include the false making of
any writing.
32.Thus, it appears from the above that the elements of forgery
are also identified as the ingredients of faking something.
33.If the false making of an instrument is a common ingredient of
“faking” and "forgery”, the nondisclosure in Form No.2A of the
conviction suffered by the appellant in the past, may certainly come
within Section 102(1)(ca). The reason for this is that a person
having criminal antecedents, poses himself to be one without any
such antecedent, when he fails to make a true disclosure. In law, he
33
passes off or comes out as a person without any criminal
antecedent. Therefore, the failure to make a true disclosure in Form
2A, regarding the past conviction, will certainly come within the
meaning of the word ‘fake’, mentioned in clause (ca) of subsection
(1) of Section 102.
34.It may be true, as contended by Shri Ragenth Basant, learned
counsel for the appellant that Rule 6, in terms of which Form No.2A
has been drafted, is a subordinate legislation, which cannot go
beyond the scope of Section 52(1A). But unfortunately for the
appellant, Rule 6 is not under challenge on the ground that it is
ultra vires the Act. Therefore, the appellant cannot now be heard to
contend that Rule 6 cannot travel beyond or enlarge the scope of
Section 52(1A).
35.If not for Rule 6 and Form No.2A, it is possible to accept the
argument that the requirement under Section 52(1A) is limited to
“the disclosure of involvement in a criminal case at the time of filing
of the nomination”. At the time of filing of the nomination, the
appellant was not involved in any criminal case.
36.We do not agree with the argument of Shri P.V. Surendranath,
learned senior counsel for respondent No.1 that the phrase
34
“involvement in a criminal case” would include past conviction also,
especially when Section 52(1A) uses the rider “at the time of filing of
the nomination”.
37.In our considered view, the words “involvement in a criminal
case at the time of filing of the nomination” would only mean (i) cases
where a criminal complaint is pending investigation/trial; (ii) cases
where the conviction and/or sentence is current at the time of filing
of the nomination; and (iii) cases where the conviction is the
subject matter of any appeal or revision pending at the time of the
nomination.
38.Therefore, in the absence of Rule 6 and Form No.2A we could
have easily concluded that the case of the appellant will not be
covered by Section 52(1A) as he was not involved in any criminal
case on the date of the nomination. But Rule 6 and Form No.2A
taken together with what the law means to be “fake”, makes things
difficult for the appellant.
39.We have extracted in paragraph 9 above, the relevant portion
of Form No.2A. Column No.1 in Form 2A requires the details not
only of the criminal cases pending trial before the Court but also
the criminal cases in which the contestant was convicted. The
35
contestant is required to furnish in Form No.2A, details regarding
the cases in which he is punished, the case number, the Court, the
offences for which punishment was awarded, the nature of the
punishment and the details regarding appeal or revision etc.
Therefore, Form No.2A goes far beyond the requirement of Section
52(1A). The appellant admittedly failed to furnish details of his past
conviction in Form No.2A. Therefore, the ground on which his
election was sought to be declared void, falls squarely within
Section 102(1)(ca) of the Act.
40.But that is not all. The offences for which the appellant was
eventually convicted, were under Section 38 read with Section 52 of
the Kerala Police Act, 1960 (Act 5 of 1961).
41.Section 38 of the Kerala Police Act, 1960 reads as follows:
“38. Persons bound to conform to reasonable directions
of police.— (1) All persons shall be bound to conform to the
reasonable direction of a police officer given in fulfilment of
any of the duties enjoined on, or in exercise of any of the
powers vested in him under this Act.
(2) A police officer may restrain or remove any person
resisting or refusing or omitting to conform to any such
direction as aforesaid.”
42.Section 52 of the Kerala Police Act,1960 reads as follows:
“52. Penalty for failure to conform to lawful and
reasonable directions of police officers.— Every person
who disobeys any direction given by a police officer under
this Act or rules made thereunder shall on conviction be
36
liable to fine not exceeding two hundred rupees.”
43.It could be seen from both the above provisions that the
conviction of the appellant was actually for the disobedience of the
directions issued by a police officer. This was admittedly in
connection with a dharna which the appellant staged in front of the
Panchayat office, along with a group of his supporters. Therefore,
the question that we are obliged to consider is as to whether the
nondisclosure of the conviction for such offences would also come
within the purview of Section 102(1)(ca) of the Act.
44.As we have seen from the way in which the law developed from
the decision in Association for Democratic Reforms (supra), the
primary object of compelling the disclosure of criminal antecedents
of candidates contesting the elections, is to decriminalize politics
and to make the voters aware of the choice that they have. This is
why this Court was very careful in formulating the principles of law,
in paragraph 94 of the decision in Krishnamoorthy (supra).
Paragraph 94 of the decision in Krishnamoorthy (supra) may be
usefully extracted as follows:
“94. In view of the above, we would like to sum up our
conclusions:
94.1. Disclosure of criminal antecedents of a
candidate, especially, pertaining to heinous or serious
37
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.
94.2. When there is nondisclosure of the offences
pertaining to the areas mentioned in the preceding clause, it
creates an impediment in the free exercise of electoral right.
94.3. Concealment or suppression of this nature
deprives the voters to make an informed and advised choice
as a consequence of which it would come within the
compartment of direct or indirect interference or attempt to
interfere with the free exercise of the right to vote by the
electorate, on the part of the candidate.
94.4. 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 nondisclosure 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.
94.5. The question whether it materially affects the
election or not will not arise in a case of this nature.”
45. While offences under the Indian Penal Code or under special
enactments such as Prevention of Corruption Act, Arms Act and so
on and so forth are substantive offences, the commission of which
may make a person a criminal, an offence under certain enactments
such as Kerala Police Act are not substantive offences. Just as
strike is a weapon in the hands of the workmen and lockout is a
weapon in the hands of the employer under Labour Welfare
legislations, protest is a tool in the hands of the civil society and
police action is a tool in the hands of the Establishment. All State
enactments such as Kerala Police Act, Madras Police Act etc., are
aimed at better regulation of the police force and they do not create
38
substantive offences. This is why these Acts themselves empower
the police to issue necessary directions for the maintenance of law
and order and the violation of any of those directions is made a
punishable offence under these Acts.
46.Once the object behind the provisions of the Kerala Police Act
are understood, it would be clear that neither Section 52(1A) read
with Rule 6 and Form 2A nor Section 102(1)(ca) of the Act nor the
decisions in Association for Democratic Reforms, People’s
Union for Civil Liberties (PUCL) or Krishnamoorthy can be
stretched to such an extent that the failure of the appellant to
disclose his conviction for an offence under the Kerala Police Act for
holding a dharna in front of the Panchayat office, is taken as a
ground for declaring an election void.
47.It may be of interest to note that the Kerala Police Act, 1960
repealed (i) the TravancoreCochin Police Act, 1951; and (ii) the
Madras District Police Act, 1859 as applied to the Malabar District
referred to in Section 5(2) of the States Reorganisation Act, 1956. It
also repealed the provisions of (i) the Police Act, 1861; and (ii) the
Madras City Police Act, 1888, which were earlier extended to the
Malabar District. Thus Kerala Police Act, 1960 is actually the
39
successor legislation of certain police enactments of the colonial
era, whose object was to scuttle the democratic aspirations of the
indigenous population. This aspect should be kept in mind before
applying blindfold, the principle ‘what is sauce for the goose is
sauce for the gander’.
48.Therefore, we are of the considered view that the District Court
and the High Court were wrong in declaring the election of the
appellant to be void on the ground that the failure of the appellant
to disclose in Form 2A, his conviction under the Kerala Police Act
amounted to ‘undue influence on the free exercise of the electoral
right’ and also a violation of Section 52(1A) read with Section 102(1)
(ca) of the Kerala Panchayat Raj Act. Hence, the appeals are
allowed, the impugned orders are set aside and the Election Petition
filed by respondent No.1 is dismissed. No costs.
……………......................J.
[S.ABDUL NAZEER]
…………….......................J.
[V.RAMASUBRAMANIAN]
New Delhi;
November 09, 2022.
40
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