As per the case facts, the appellant's election as a Councillor was set aside by the Principal District and Sessions Judge, a decision upheld by the High Court of Karnataka. ...
No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO……………… OF 2022
(ARISING OUT OF S.L.P. (C) NO. 7414 OF 2021)
S. RUKMINI MADEGOWDA ....Appellant (s)
versus
THE STATE ELECTION COMMISSION & ORS. .…Respondent (s)
J U D G M E N T
Indira Banerjee, J.
Leave granted.
2. This Special Leave Petition under Article 136 of the Constitution
of India is against a judgment and order dated 26
th
May 2021 passed
by the Hon’ble High Court of Karnataka at Bengaluru, upholding the
judgment and order dated 14
th
December 2020 of the Principal District
and Sessions Judge, Mysuru, allowing Election Petition No.4 of 2018
and setting aside the election of the Appellant to the Mysore Municipal
Corporation as Councillor from Ward No.36-Yeraganahalli, Karnataka.
2
3. Sometime in 2018, the Appellant filed her nomination for election
to the Mysore Municipal Corporation, as Councillor from Ward No.36-
Yeraganahalli in Karnataka, which was reserved for Backward Class-B
(Women), along with a declaration by way of an affidavit, furnishing
details of the movable and immovable properties held by the Appellant
as well as her spouse and dependents, which is hereinafter referred to
as the “Affidavit of Assets”.
4. In August 2018, elections to the Mysore Municipal Corporation
were held. On 3
rd
September 2018, the results of said elections were
declared. The Appellant was declared as successfully elected
Councillor from the said Ward No.36, that is Yeraganahalli.
5. The Respondent No.4, an unsuccessful candidate, filed Election
Petition No.4 of 2018 in the Court of Principal District and Sessions
Judge, Mysuru under Sections 33 and 34 of the Karnataka Municipal
Corporations Act, 1976, hereinafter referred to as the “KMC Act”.
6. In the said Election Petition, the Respondent No.4 alleged that
the Appellant had, in her Affidavit of Assets, falsely declared that her
husband did not possess any immovable property, and that by giving
such false declaration, the Appellant had indulged in corrupt practices
to get the benefit of reservation under the Category of Backward Class-
B (Women).
3
7. By a judgment and order dated 16
th
April 2019, the Principal
District and Sessions Judge, Mysuru (Trial Court) rejected the said
Election Petition No.4 of 2018 filed by the Respondent No.4.
8. The Respondent No.4 filed an appeal being Miscellaneous First
Appeal No.4023 of 2019 in the High Court of Karnataka, challenging
the said judgment and order dated 16
th
April 2019 passed by the Trial
Court.
9. By an order dated 28
th
April 2020, the High Court remanded
Election Petition No.4 of 2018 back to the Trial Court, for
reconsideration, in the light of the judgments of this Court in Union of
India v. Association for Democratic Reforms
1
and in Lok Prahari
v. Union of India
2
. The High Court observed:
“…This Court is of the considered opinion that for complete
adjudication of the lis the trial court should have considered such
question with reference to the relevant provisions of the KMC Act
and the decisions of the Hon’ble Supreme Court in Union of India
v. Association for Democratic Reforms People’s Union for Civil
Liberties (PUCL) and another vs Union of India and in Lok Prahari
Vs. Union of India and Others.”
10.Thereafter, by a judgment and order dated 14
th
December 2020,
the Trial Court allowed the Election Petition No.4 of 2018 and set aside
the election of the Appellant.
11.On or about 23
rd
December 2020, the Appellant filed an appeal in
the High Court of Karnataka at Bengaluru, under Section 38 of the KMC
1 (2002) 5 SCC 294
2 (2018) 4 SCC 699
4
Act, which was admitted and registered as MFA No.49 of 2021. The
High Court has dismissed the Appeal, being MFA No.49 of 2021 by the
judgment and order dated 26
th
May 2021, impugned in this appeal.
12.Mr. Shyam Diwan, appearing on behalf of the Appellant,
submitted that the Appellant was successful in the Municipal election
for Ward No.36, Yeraganahalli in the Mysore City Corporation, and was
accordingly chosen as the Mayor of the Mysore City Corporation and
she continues to be the sitting Mayor.
13.Mr. Diwan argued that while the Respondent No.4 secured 2902
votes, the Appellant secured 3295 votes. Mr. Diwan emphasized on
the fact that the Election Petition had initially been dismissed, but the
High Court had, by an order dated 28
th
April 2020 in appeal, remanded
the matter back for reconsideration of the learned Trial Court.
14.Mr. Diwan submitted that the High Court had erred in law, in
passing the impugned order dated 26
th
May 2021, upholding the order
dated 14
th
December 2020 of the Trial Court in Election Petition No.4 of
2018, setting aside the election of the Appellant as Councillor for Ward
No.36-Yeraganahalli, Karnataka.
15.Mr. Diwan raised the following questions of law for consideration
of this Court:-
(i)Whether a duly elected candidate, serving as the Mayor,
Mysore City Corporation after election, could be unseated, in
5
the absence of any statutory provision requiring disclosure of
assets in the affidavit filed with the nomination form?
(ii)Whether non-disclosure of assets would constitute corrupt
practice, in the absence of any statutory provision requiring
disclosure of assets?
16.The election of the Appellant is governed by the Karnataka
Municipal Corporation Act, 1976, hereinafter referred to as the “KMC
Act”, and the Karnataka Municipal Corporation (Election) Rules, 1979
framed thereunder, which is hereinafter referred to as the “KMC
Election Rules”.
17.Mr. Diwan emphatically argued that there was no requirement of
any disclosure under the KMC Act or under the KMC Election Rules.
Having recognized and proceeded on the basis that elections were
being held in terms of the KMC Act read with the KMC Election Rules,
the High Court should not have dismissed the Appeal of the Appellant.
18.Mr. Diwan submitted that the Election Law which governs the
election, is a self-contained statutory law which has to be strictly
adhered to. In the absence of any specific provision in the law, which
requires a candidate to disclose, by way of affidavit, the assets of
his/her spouse, a candidate intending to contest an election cannot be
compelled to make such disclosure by adoption of a policy decision or
through action at common law.
6
19.In support of his submission, Mr. Diwan cited Shrikant v.
Vasantrao and Others
3
, where this Court quoted with approval its
earlier decision in Jyoti Basu v. Debi Ghosal
4
and held:-
"…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. An election
petition is not an action at common law, nor in equity. It is a
statutory proceeding to which neither the common law nor the
principles of equity apply but only those rules which the statute
makes and applies. It is a special jurisdiction, and a special
jurisdiction has always to be exercised in accordance with the
statute creating it. Concepts familiar to common law and equity
must remain strangers to election law unless statutorily
embodied. A court has no right to resort to them on
considerations of alleged policy because policy in such matters as
those, relating to the trial of election disputes, is what the statute
lays down. In the trial of election disputes, court is put in a
straitjacket.”
20.In Srikant v. Vasant Rao & Others (supra) this Court held :-
“11. A person cannot, therefore, be disqualified unless he suffers
a disqualification laid down in Article 191 of the Constitution or
under Sections 8, 8-A, 9, 9-A, 10 or 10-A of the Act. It is not
possible to add to or subtract from the disqualifications, either on
the ground of convenience, or on the grounds of equity or logic or
perceived legislative intention. A combined reading of Article 191
of the Constitution of India and Chapter III of the Representation
of the People Act, 1951 makes it clear that a person can be held
to be disqualified for being chosen as, and for being, a Member of
the Legislative Assembly or Legislative Council of a State only on
the following, and no other, grounds :
Disqualifications under the Constitution of India :
...............
...............
(viii) if he is a person having a subsisting contract with the State
Government for the supply of goods to or for the execution of any
works undertaken by that Government, vide section 9-A of the
Act; …”
3 (2006) 2 SCC 682
4 (1982) 1 SCC 691
7
21.The judgment of this Court in Srikant v. Vasant Rao and
Others, was rendered in the context of Chapter III of the
Representation of the People Act 1951, in terms whereof a person
could be held to be disqualified from being a Member of the Legislative
Assembly only on the grounds stipulated, and no other, which included
a person having a subsisting contract with the State Government for
supply of goods.
22.This Court found on facts that the concerned candidate did not
have any subsisting contracts with the State Government, but with
entities under the control of the State Government. This Court, thus
observed and held that the State Government was different from legal
or other authorities under its control.
23.The proposition of law noted by this Court in Jyoti Basu v. Debi
Ghosal (supra) that except in accordance with Statute, there is no
right to elect, be elected or to dispute an election, as approved and
reiterated in Srikant v. Vasant Rao & Others (supra) is well settled.
An Election Petition is indisputably a statutory proceeding governed by
the statute under which the Election Petition is filed, or the Statutory
Rules framed under that statute.
24.The observations of this Court in Jyoti Basu v. Debi Ghosal
(supra), referred to above have been made in the context of the issue
of whether the appellant could be impleaded in an election petition and
held guilty of corrupt practice, when he was not a candidate contesting
8
the election, which had been challenged. The judgments in Srikant
v. Vasant Rao & Others (supra) and Jyoti Basu v. Debi Ghosal
(supra) are distinguishable on facts.
25.In Shailesh Manubhai Parmar v. Election Commission of
India
5
, also cited by Mr. Diwan, this Court held, in effect, that even
though Article 324 of the Constitution confers wide powers on the
Election Commission to take action with a view to ensure a free and
fair election, even by assuming the role of an adviser, the power to
make law vests in the Parliament under Article 327 of the Constitution.
The Parliament is supreme and, therefore, not bound by any advice of
the Election Commission.
26.This Court held:-
“26. Interpreting the said Article, the Constitution Bench in Kuldip
Nayar [Kuldip Nayar v. Union of India, (2006) 7 SCC 1] held : (SCC
p. 139, para 427)
“427. In this context, we would say that where the law
on the subject is silent, Article 324 is a reservoir of
power for the Election Commission to act for the
avowed purpose of pursuing the goal of a free and fair
election, and in this view it also assumes the role of an
adviser. But the power to make law under Article 327
vests in Parliament, which is supreme and so, not
bound by such advice. We would reject the argument
by referring to what this Court has already said
in Mohinder Singh Gill [Mohinder Singh Gill v. Chief
Election Commr., (1978) 1 SCC 405] and what bears
reiteration here is that the limitations on the exercise of
“plenary character” of the Election Commission include
one to the effect that ‘when Parliament or any State
Legislature has made valid law relating to or in
connection with elections, the Commission, shall act in
conformity with, not in violation of, such provisions'
[SCC p. 452, para 92(2)(b)].”
5 (2018) 9 SCC 100
9
27.Relying on Shailesh Manubhai Parmar (supra), Mr. Diwan
argued that the Election Commission has to act within the four corners
of law made by Parliament. That apart, if any direction is issued by this
Court, interpreting a provision for furtherance of purity of election, it
will be obligatory on the part of the Commission to act in accordance
with the same. The Commission cannot introduce concepts or ideas or
dimensions which would not fit into the legal framework. There can be
no dispute with the aforesaid proposition.
28.Mr. Diwan questioned the authority of the Election Commission to
issue the notification dated 14
th
July 2003 requiring candidates
contesting elections to disclose their assets and the assets of their
spouses and dependents by filing an affidavit. He argued that there
was no vacuum in the KMC Act, which was required to be filled up by
issuance of a notification.
29.The notification dated 14
th
July 2003, was issued pursuant to the
judgment of this Court in Union of India v. Association for
Democratic Reforms (supra). The relevant part of the judgment is
extracted hereinbelow:-
“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 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.
10
(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.”
30.In Lok Prahari (supra), this Court held:-
“68. In the light of the law declared by this Court in ADR
case [Union of India v. Assn. for Democratic Reforms, (2002) 5
SCC 294 : AIR 2002 SC 2112] and PUCL case [PUCL v. Union of
India, (2003) 4 SCC 399 : AIR 2003 SC 2363], we do not see any
legal or normative impediment nor has any tenable legal
objection been raised before us by any one of the respondents,
for issuance of the direction relating to the changes in Form 26
(declaration by the candidates). On the other hand, the 2nd
respondent in his counter stated:
“7. It is submitted that so far as the first prayer in the
captioned writ petition is concerned, the information
about source(s) of income of candidates, their spouses
and dependants will be a step in the direction of
enhancing transparency and should form part of the
declaration in Col. (9) of Form 26. The Answering
Respondent Commission vide its Letter No.
3/4/ECI/LET/FUNC/JUD/SDR/Vol.I/2016 dated 7-9-2016 has
already requested the Ministry of Law and Justice to
consider the proposed amendments made in Column (3)
and Column (9) of Form 26 and in total affirmation with
the prayer made by the petitioner.”
Therefore, we are of the opinion that Prayer 1(1) should be
granted and is accordingly granted. We direct that Rule 4-A of
the Rules and Form 26 appended to the Rules shall be suitably
amended, requiring candidates and their associates to declare
their sources of income.”
31.Mr. Diwan argued that in Lok Prahari (supra), this Court
directed that Rule 4A and Form 26 appended to the Conduct of
Elections Rules, 1961, hereinafter referred to as the “1961 Rules”
11
framed under the Representation of People Act shall be suitably
amended requiring candidates and their associates to declare their
sources of income. This Court further observed:
“81. For the very same logic as adopted by this Court
in Krishnamoorthy [Krishnamoorthy v. Sivakumar, (2015) 3 SCC
467 : (2015) 2 SCC (Cri) 359 : AIR 2015 SC 1921] , we are also of
the opinion that the non-disclosure of assets and sources of
income of the candidates and their associates would constitute a
corrupt practice falling under heading “undue influence” as
defined under Section 123(2) of the 1951 RP Act. We, therefore,
allow Prayer 2.”
32.Mr. Diwan argued that, in this case, the elections were being held
under the KMC Act read with the KMC Rules. Neither the KMC Act, nor
any Rules framed thereunder require disclosure of the assets of a
candidate intending to contest elections or his/her spouse. The High
Court has in its impugned order recorded that the statutory Form No. 2
under the KMC Rules does not require a candidate to file any affidavit
of assets and liabilities of the candidate or the candidate’s spouse.
33.Mr. Diwan emphasized on the difference between elections
conducted by the Election Commission of India and an election
governed by the KMC Act and/or the KMC Rules. He argued that the
elections conducted by the Election Commission of India are governed
by the Representation of People Act, 1951 and the 1961 Rules. Mr.
Diwan submitted that there is a statutory form and express statutory
requirement in terms of Rule 4A of the 1961 Rules mandating
disclosures. The form of affidavit which is required to be filed in
respect of elections conducted by the Election Commission of India,
12
must contain details of spouse’s income, property etc. However, the
requirement to make disclosures cannot be imported into the KMC
Rules, without an appropriate amendment of the said rules as also the
statutory form thereunder.
34.Mr. Diwan submitted that the High Court erred in placing reliance
on the order of the State Election Commission dated 14
th
July 2003.
Mr. Diwan argued that the absence of statutory requirement could not
be overcome by an order of the State Commission. The operative
order of the Notification dated 14
th
July 2003 cannot amount to
amending provisions of the KMC Act or any rules framed thereunder.
35.Mr. Diwan argued that it is the duty of the Election Commission
to conduct fair elections in accordance with the statutory provisions. It
is not for the Election Commission to legislate. Furthermore, if an
administrative direction as the one issued by the State Election
Commission by the Notification dated 14
th
July 2003 were adequate,
there would be no need to amend the Central Rules for the conduct of
elections.
36.Mr. Diwan submitted that the High Court erred in arriving at the
finding that the Appellant had indulged in corrupt practices. The
consequences of such finding is that the Appellant stands disqualified
from being a Councillor for a period of six years in terms of Section 27
of the KMC Act. At the highest, the action impugned would amount to
improper acceptance of nomination under Section 35(1)(d)(i).
13
37.Mr. Diwan submitted that the election could, at best, have been
set aside under Section 35(1)(d)(i) and not on the ground of corrupt
practices. The High Court has not arrived at any specific finding with
regard to material impact of improper acceptance of the Appellant’s
nomination or election, to constitute corrupt practice.
38.In our considered view, a false declaration with regard to the
assets of a candidate, his/her spouse or dependents, constitutes
corrupt practice irrespective of the impact of such a false declaration
on the election of the candidate. It may be presumed that a false
declaration impacts the election.
39.Mr. Diwan finally argued that penal measures can only be
imposed in accordance with statutory provisions and/or rules. In the
context of his submission, Mr. Diwan cited State of M. P. v. Centre
for Environment Protection Research & Development
6
, authored
by one of us (Indira Banerjee, J.), where this Court held:-
“54. It is well settled that when a statute or statutory rules
prescribed a penalty for any act or omission, no other penalty not
contemplated in the statute or statutory rules can be imposed. It
is well settled that when statute requires a thing to be done in a
particular manner, it is to be done only in that manner.
55. There can be no doubt that strong measures must be taken to
protect the environment and improve the air quality whenever
there is contravention of statutory rules causing environmental
pollution. Stringent action has to be taken, but in accordance with
law.
56. Stoppage of supply of fuel to vehicles not complying with the
requirement to have and/or display a valid PUC certificate is not
contemplated either in the 1989 Rules or in the NGT Act. Motor
vehicles not complying with the requirement of possessing and/or
6 (2020) 9 SCC 781
14
displaying a valid PUC certificate cannot be debarred from being
supplied fuel.
…
58. This Court is, therefore, constrained to hold that the learned
Tribunal had no power and/or authority and/or jurisdiction to pass
orders directing the appellant State Government to issue orders,
instructions or directions on dealers, outlets and petrol pumps not
to supply fuel to vehicles without PUC certificate. The first two
questions are answered accordingly.”
40.As submitted by Mr. Diwan candidly, the aforesaid order of this
Court was passed in the context of an order of the National Green
Tribunal, directing that supply of fuel to vehicles be stopped for non-
compliance with the requirement to display a valid PUC (Pollution
Under Control) Certificate, even though there were specific provisions
in the statute for dealing with the contravention. The observations of
this Court extracted above were made in an altogether different
context, where penalty not contemplated by statute had been
imposed.
41.It is well settled that, a judgment is a precedent for the issue of
law that is raised and decided. The judgment has to be construed in
the backdrop of the facts and circumstances in which the judgment has
been rendered. Words, phrases and sentences in a judgment, cannot
be read out of context. Nor is a judgment to be read and interpreted in
the manner of a statute. It is only the law as interpreted by Court in an
earlier judgment, which constitutes a binding precedent, and not
everything that the Judges say.
15
42.Emphasizing on the well settled principle of strict construction of
penal statutes, Mr. Diwan submitted that the impugned judgment and
order was incorrect. In the context of his submission, Mr. Diwan cited a
five-Judge Bench decision of this Court in Tolaram Relumal and
Another v. State of Bombay
7
, where this Court dealing with the
penal provision in the Bombay Rent Restriction Act, 1947, held:-
“ … It may be here observed that the provisions of Section 18(1)
are penal in nature and it is a well-settled rule of construction of
penal statutes that if two possible and reasonable constructions
can be put upon a penal provision, the court must lean towards
that construction which exempts the subject from penalty rather
than the one which imposes penalty. It is not competent to the
court to stretch the meaning of an expression used by the
legislature in order to carry out the intention of the legislature. As
pointed out by Lord Macmillan in London and North Eastern
Railway Co. v. Berriman [1946 AC 278, 295] “where penalties for
infringement are imposed it is not legitimate to stretch the
language of a rule, however, beneficent its intention, beyond the
fair and ordinary meaning of its language”.
43.In Bipinchandra Parshottamdas Patel v. State of Gujarat
8
,
cited by Mr. Diwan, this Court held:-
“31. It is trite that a law leading to disqualification to hold an
office should be clear and unambiguous like a penal law. In the
event a statute is not clear, recourse to strict interpretation must
be made for construction thereof. In his classic work The
Interpretation and Application of Statutes Read Dickerson states:
“(1) The court will not extend the law beyond its meaning to
take care of a broader legislative purpose. Here ‘strict’ means
merely that the court will refrain from exercising its creative
function to apply the rule announced in the statute to
situations not covered by it, even though such an extension
would help to advance the manifest ulterior purpose of the
statute. Here, strictness relates not to the meaning of the
statute but to using the statute as a basis for judicial law-
making by analogy with it.
7 (1955) 1 SCR 158
8 (2003) 4 SCC 642
16
(2) The court will resolve an evenly balanced uncertainty of
meaning in favour of a criminal defendant, the common law,
the ‘common right’, a taxpayer, or sovereignty.
(3) The court will so resolve a significant uncertainty of
meaning even against the weight of probability.
(4) The court will adhere closely to the literal meaning of the
statute and infer nothing that would extend its reach.
(5) Where the manifest purpose of the statute, as collaterally
revealed, is narrower than its express meaning, the court will
restrict application of the statute to its narrower purpose. This
differs from the Riggs situation in that the narrow purpose is
revealed by sources outside the statute and its proper
context.”
44.The relevant provisions of the Karnataka Municipal Corporations
Act, 1976, governing the election of the Appellant are set out herein
below for convenience.
“27. Corrupt practices entailing disqualification.—The
Corrupt practices specified in section 39 shall entail
disqualification for being a councillor for a period of six years
counting from the date on which the finding of the court as to
such practice takes effect under this Act.
…
33. Election petition.—(1) No election of a councillor shall be
called in question except by an election petition presented for
adjudication to the District Court having jurisdiction, within thirty
days from the date of the publication of the result of election
under section 32.
(2) An election petition may be presented on one or more of the
grounds specified in Section 35,—
(a) by any candidate at such election; or
(b) by any voter of the ward concerned.
(3) A petitioner shall join as respondents to his petition all the
candidates at the election………………
34. Relief that may be claimed by the petitioner.- A
petitioner may, in addition to claiming a declaration that the
election of all or any of the 368 Municipal Corporations 1977: KAR.
ACT 14] returned candidates is void, claim a further declaration
that he himself or any other candidate has been duly elected.
35. Grounds for declaring elections to be void.—(1) Subject
to the provisions of sub-section (2), if the court is of opinion,—
17
(a) that on the date of his election a returned candidate was not
qualified or was disqualified, to be chosen as a councillor 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
(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 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.
(2) If in the opinion of the court, a returned candidate has been
guilty, by a person 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 his agents,
then the court may decide that the election of the returned
candidate is not void
37. Decision of the court.—(1) At the conclusion of the trial of
an election petition, the court shall make an order,—
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates
to be void; or
(c) declaring the election of all or any of the returned candidates
to be void and the petitioner or any other candidate to have been
duly elected.
…
38. Appeal.—An appeal shall lie to the High Court from an order
of the District Court under section 37 within a period of thirty
18
days from the date of the order of the court excluding the time
required for obtaining a copy of the order:
Provided that the High Court may entertain an appeal after the
expiry of the said period of thirty days if it is satisfied that the
appellant had sufficient cause for not preferring the appeal within
the said period.
39. Corrupt practices.—The following shall be deemed to be
corrupt practices for the purposes of this Act, namely:—
(1) ‘bribery’ as defined in clause (1) of section 123 of the
Representation of the People Act, 1951 (Central Act 43 of 1951)
for the time being in force;
(2) ‘undue influence’ as defined in clause (2) of the said section
for the time being in force;
…”
45.Under Section 39 of the KMC Act, corrupt practices include undue
influence. The definition of undue influence in Clause 2 of Section 123
of the Representation of the People Act 1951, (hereinafter referred to
as “the 1951 RP Act”) has been incorporated in Section 39(2) of the
KMC Act.
46.Section 123 (2) of the 1951 RP Act provides :-
“123. Corrupt practices - The following shall be deemed to be
corrupt practices for the purposes of this Act:—
(1) ...
(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 excommunication or
expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to
believe that he, or any person in whom he is interested, will
19
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.”
47.Under Section 27 of the KMC Act corrupt practices defined in
Section 39(2) which includes “undue influence’ entails disqualification
from being a Councillor, for six years.
48.Mr. Basava Prabhu S. Patil, learned Senior Counsel appearing on
behalf of the Respondent No.4, submitted that the election in question
was conducted within the legal framework of the KMC Act, the
Notification dated 14
th
July 2003 issued by the Karnataka State Election
Commission in exercise of its powers under Articles 243K & 243ZA of
the Constitution of India, as also the addendum dated 19
th
June 2018 to
the Notification dated 14
th
July 2003, which required candidates
participating in elections to submit an affidavit disclosing assets owned
by the candidates, their spouses and dependents.
49.In compliance with the requirements of the said Notifications
dated 14
th
July 2003 and 19
th
June 2018, the Appellant filed an affidavit.
It is admitted by the Appellant that she has made incorrect statements
in the said affidavit in that (i) she falsely stated that her husband’s
name was ‘Nanjegowda’ instead of stating his real name ‘Madegowda’,
(ii) she has stated that her husband did not own any movable or
20
immovable properties although he owned large number of movable
properties.
50.After the results of the election were declared on 3
rd
September
2018 and thereafter the false statements made in her affidavit were
discovered, the Respondent No.4 filed the Election Petition No.4/2018.
51.In the reply given by the Appellant to the Election Petition she
stated:-
“4. Regarding the averments made in the Paragraph 4 of the
petition, the 4
th
respondent humbly submits that as a matter of
fact, by oversight the name of the son (i.e. Nanje Gowda) of the
4
th
respondent has been mentioned in that column instead of the
name of her husband (i.e., S. Made Gowda). In fact, at the
beginning of that affidavit, the name of the 4
th
respondent’s
husband has been correctly mentioned.
5. Regarding the averments made in the paragraph 5 of the
petition, the 4
th
respondent humbly submits that she had no
knowledge about her husband having the properties mentioned in
the said paragraph at the time of swearing to that affidavit and
hence she has not mentioned the same in her said affidavits.
The non-mentioning of the said properties in the said affidavit is
unintentional and for the said bona fide reason”.
52.Mr. Patil submitted that the Trial Court had initially erred in
dismissing the Election Petition notwithstanding the admission of the
Appellant that she had not given the correct name of her husband and
had suppressed the fact that her husband had owned properties.
53.Mr. Patil submitted that on remand the Election Petition was
rightly allowed. The non-disclosure by the Appellant of her husband’s
assets would amount to corrupt practices and is therefore, violative of
the KMC Act as well as Section 123 of the 1951 RP Act. The Trial Court
21
therefore, set aside the election of the Appellant and declared the
Respondent No.4 as elected.
54.Mr. Patil argued that the High Court had rightly come to the
conclusion that the election of the Appellant was vitiated by corrupt
practice adopted by her in view of the fact that she had filed a false
affidavit filed and had not disclosed her husband’s assets. Mr. Patil
submitted that Section 35(1)(d) of the KMC Act provides that if the
Court is of the opinion that a party has committed a ‘corrupt practice’
that would result in the election being declared void.
55.Corrupt Practices have been defined in Section 39(2) of the KMC
Act to include ‘undue influence’ as defined in Section 123(2) of the
1951 RP Act. Section 123(2) of the 1951 RP Act came up for
interpretation by this Court in Lok Prahari (supra), where this Court
held that the non-disclosure would amount to ‘undue influence’ as
defined under the Representation of People Act. The definition of
‘undue influence’ as used in Section 123(2) of 1951 RP Act is also
adopted by Section 39(2) of the KMC Act. Therefore, the non-
disclosure of assets in the municipal elections would also amount to
‘undue influence’ and consequently to ‘corrupt practice’.
56.Rebutting the argument on behalf of the Appellant that the State
Election Commission did not have the power to issue the Notifications
dated 14
th
July 2003 and 19
th
June 2018, making it mandatory for
candidates to file affidavits disclosing the assets of their spouses, since
there was no such requirement in the KMC Act, Mr. Patil argued, and in
22
our view, rightly, that the issue is squarely covered by the decision of
this Court in the Association for Democratic Reforms and Ors.
(supra).
57.In Krishnamoorthy v. Sivakumar & Ors.
9
, cited by Mr. Patil,
this Court upheld a notification of the Tamil Nadu State Election
Commission requiring that every candidate contesting elections to a
local body, should disclose whether there was any criminal case
pending against him. In the aforesaid case, the election of the
appellant as the President of the Panchayat had been declared null and
void for not disclosing the information required in terms of the
notification issued by the Tamil Nadu State Election Commission.
58.As argued by Mr. Patil, the notifications dated 14
th
July 2003 and
19
th
June 2018 issued by the State Election Commission, have never
been questioned by the Appellant. Rather, the Petitioner accepted the
notifications as binding on her, and accordingly filed an affidavit. The
Appellant is, therefore, estopped from questioning the validity of the
notifications or the power of the State Election Commission to issue the
same. That non-disclosure of assets would amount to ‘corrupt
practices’, entailing disqualification, is evident from Sections 35 and
39(ii) of the KMC Act, read with Section 123(2) of the Representation of
People Act 1951, as interpreted by this Court in Lok Prahari (supra).
59.It is not in dispute that the Appellant had suppressed information
with regard to the assets of her husband. Section 35(1)(b) of the KMC
9
(2015) 3 SCC 467
23
Act provides that if the Court is of the opinion that a party has
committed a ‘corrupt practice’, that would result in the election being
declared void.
60.Section 35 of the KMC Act enumerates the grounds on which
Courts could declare the election of the returned candidate to be void.
Section 35(1)(b) mentions corrupt practice by a returned candidate or
his election agent or by any other person, either with the consent of a
returned candidate or his election agent, as one of the grounds for
declaring the election to be void. Section 39 of the KMC Act
enumerates the acts/practices, which are to be deemed to be corrupt
practices. Corrupt practices include ‘undue influence’. This is
specified in Section 39(2) of the KMC Act.
61.The definition of undue influence in Section 123(2) of the 1951
RP Act has expressly been incorporated in the definition of undue
influence in Section 39(2) of the KMC Act. Further, having regard to
the tenor of Section 39(3) of the KMC Act, any false statement relating
to a candidate would be corrupt practice. At the cost of repetition, it is
emphasized that KMC Act incorporates the definition of undue
influence in Section 123(2) of the 1951 RP Act. The judgments of this
Court interpreting ‘undue influence’ in Section 123(2) of the 1951, RP
Act, would squarely apply to the interpretation of undue influence
under Section 39(2) of the KMC Act.
24
62.Mr. Patil rightly argued that Section 123(2) of the Representation
of People Act, 1951 had been interpreted by this Court in Lok Prahari
(supra) where this Court held that non-disclosure would amount to
‘undue influence’ as defined in the Representation of People Act, 1951.
The non-disclosure of assets would therefore, also amount to ‘undue
influence’ and consequently to ‘corrupt practices’ under the KMC Act.
Mr. Patil argued that the Notifications dated 14
th
July 2003 and in
particular 19
th
June 2018 issued by the State Election Commission
made it mandatory for the candidates to file affidavits, disclosing the
assets of their spouses.
63.The question of whether the Election Commission had power to
issue directions to the candidates to file affidavits disclosing the assets
of their spouses, in the absence of any specific provision under the
KMC Act or the Rules framed thereunder is no longer res integra. The
question is squarely covered by the law laid down by this Court in
Union of India v. Association for Democratic Reforms and Ors.
(supra), where this Court had directed the Election Commission to
secure to voters, inter alia, information pertaining to assets not only of
the candidates but also of their spouse and dependents.
64.The Election Commission has to act within the four corners of law
made by the Parliament and/or the concerned State legislature, as the
case may be, as argued by Mr. Diwan.
25
65.The notification dated 14
th
July 2003 was issued pursuant to the
judgment of this Court in Association for Democratic Reforms
(supra), where this Court held that “ the Constitution has made
comprehensive provision under Article 324 to take care of surprise
situations and it operates in areas left unoccupied by legislation.” The
interpretation given by this Court of Article 324 of the Constitution of
India is binding on all courts.
66.It would be pertinent to note that the language and tenor of
Article 243-ZA(1) is in pari materia with Article 324(1) of the
Constitution. The language and tenor of Section 243-ZA(1) is identical
to that of Article 324(1). Articles 243-ZA(1) and Article 324(1) are set
out hereinbelow for convenience :-
“243-ZA. Elections to the Municipalities.—(1) The
superintendence, direction and control of the preparation of
electoral rolls for, and the conduct of, all elections to the
Municipalities shall be vested in the State Election Commission
referred to in Article 243-K.
xxx xxx xxx
324. Superintendence, direction and control of elections
to be vested in an Election Commission .—(1) The
superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of, all elections to Parliament
and to the Legislature of every State and of elections to the
offices of President and Vice-President held under this
Constitution shall be vested in a Commission (referred to in this
Constitution as the Election Commission).”
67.This Court has interpreted Article 324(1) to confer wide powers
on the Election Commission relating to superintendence, direction and
control of preparation of electoral roles and/or the conduct of elections
26
to Parliament and to the legislature of every State provided, of course,
that the directions are not contrary to law. The interpretation of Article
324(1) to confer wide powers on the Election Commission to issue
directions in respect of elections to Parliament and State legislatures
would apply to Article 243-ZA(1). Article 243-ZA(1) has to be
construed to confer powers on the State Election Commission to issue
directions related to superintendence, direction and control of the
preparation of electoral roles or for conduct of elections to
municipalities.
68.The Election Commission has wide powers under Article 324(1) of
the Constitution of India to issue directions necessary for conducting
free and fair elections, subject to the contours of law. The power of
the Election Commission includes the power to issue directions where
the law is silent. The State Election Commission has the same powers
under Article 243-K and 243-ZA(1) as the Election Commission of India
has under Article 324(1) of the Constitution of India.
69.In Association for Democratic Reforms (supra) and in Lok
Prahari (supra), this Court held that for effective exercise of his
fundamental right under Article 19(1)((a), the voter is entitled to have
all relevant information about candidates at an election which would
include criminal antecedents, if any, of the candidate, his/her assets
and liabilities, educational qualifications, etc. It may be true that
amendment of the 1951 RP Act is within the exclusive domain of the
27
Union Parliament as observed in Lok Prahari (supra) and amendment
of the KMC Act is exclusively within the domain of the Karnataka State
Legislature.
70.However, in light of the law declared by this Court in
Association for Democratic Reforms (supra), we do not see any
legal or normative impediment for the State Election Commission to
issue directions requiring disclosure of assets of the candidate, his/her
spouse and dependent associates by way of affidavit. In issuing the
notification dated 14
th
July 2003, the Election Commission has not
encroached into the legislative domain of the Karnataka State
Legislature. The direction, as contained in the notification dated 14
th
July 2003 had been accepted by the Appellant. Having affirmed a false
affidavit, it does not lie in the mouth of the Appellant to contend that
her election should not be set aside on the ground of corrupt practice
under Section 35(1) of the KMC Act.
71.India is a quasi-federal State. Article 1 of the Constitution
describes India as a “Union of States”. Every State is an integral and
inseverable part of India. The Indian polity combines the features of a
federal Government with certain features of a unitary Constitution.
While the division of powers between the Union Government and the
State Governments is an essential feature of federalism, in matters of
national importance, a uniform policy is essential in the interest of all
the states, without disturbing the clear division of powers, so that the
28
Union and the States legislate within their respective spheres. The
Constitution is the supreme law for the Union and for the States
supported by an independent judiciary which acts as the guardian of
the Constitution.
72.There can be no doubt that the Parliament and the respective
State legislatures are supreme and not bound by any advice of the
Election Commission. It is equally true that the Election Commission
has to act within the four corners of law made by the Parliament and/or
the concerned State Legislature, as the case may be. However, in our
considered opinion, the Election Commission has issued the notification
dated 14
th
July 2003 within the contours of law.
73.In State Bank of India v. Santosh Gupta
10
, Rohinton Fali
Nariman, J. speaking for the Bench relied upon decision of this Court in
State of West Bengal v. Union of India
11
and, inter-alia, reiterated
the following characteristic of Indian Federalism –
“…
(c) Distribution of powers between the Union and the regional
units each in its sphere coordinate and independent of the other.
The basis of such distribution of power is that in matters of
national importance in which a uniform policy is desirable in the
interest of the units, authority is entrusted to the Union, and
matters of local concern remain with the State.
…”
74.Purity of election at all levels, be it election to the Union
Parliament or a State Legislature or a Municipal Corporation or a
10 (2017) 2 SCC 538 (para 10)
11 AIR 1963 SC 1963
29
Panchayat is a matter of national importance in which a uniform policy
is desirable in the interest of all the States. A hypertechnical view of
the omission to incorporate any specific provision in the KMC Election
Rules, similar to the 1961 Rules, expressly requiring disclosure of
assets, to condone dishonesty and corrupt practice would be against
the spirit of the Constitution and public interest.
75.This Court is of the view that there are no grounds to interfere
with or set aside the impugned judgment and order of the High Court,
affirming the judgment and order of the Principal District and Sessions
Judge, Mysuru, allowing Election Petition No. 4 of 2018 and setting
aside the election of the Appellant.
76.The appeal is, therefore, dismissed. All pending applications are,
accordingly, disposed of.
..............................…,CJI.
[UDAY UMESH LALIT]
..............................…,J.
[INDIRA BANERJEE]
..............................…,J.
[AJAY RASTOGI]
NEW DELHI;
SEPTEMBER 14, 2022
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