2022 (11) TMI 1573 - SC - Indian Laws

Appeal allowed; lower orders voided, nondisclosure in Form 2A not undue influence under Section 52(1A) read with Section 102(1)(ca)

SC allowed the appeal, set aside the District Court and HC orders declaring the election void, and dismissed the election petition. The Court held the ... Setting aside election as Councilor of Ward No.5 of Annamanada Gram Panchayath - suppression of involvement in a criminal case, adopting a corrupt practice - invocation of Rule 6 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995 - HELD THAT:- Sub-section (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 non-compliance 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. 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. Non-disclosure/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 bring those violations within the scope of 'undue influence' leading to 'corrupt practice' which is available as one of the grounds - 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. Non-disclosure and false disclosure can straight away be traced to Section 52(1A) and 102(1)(ca) of the Act. 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 - 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. 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. The impugned orders are set aside and the Election Petition filed by respondent No. 1 is dismissed - Appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether non-disclosure in the nomination affidavit (Form No.2A) of a past conviction constitutes 'details ... fake' within Section 102(1)(ca) read with Section 52(1A) of the Kerala Panchayat Raj Act, 1994. 2. Whether non-disclosure of a past conviction in Form No.2A can be treated as a 'corrupt practice' under Section 120 (particularly by way of 'undue influence') and thus render the election void under Section 102(1)(b). 3. The proper scope and meaning of the phrase 'involvement in a criminal case at the time of submission of nomination' in Section 52(1A) and the interplay between that statutory phrase and Rule 6/Form No.2A of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995. 4. Whether a conviction under Section 38 read with Section 52 of the Kerala Police Act (penalty for failure to conform to police directions-petty fine) arising out of a dharna, when not disclosed in Form No.2A, warrants declaring the election void. 5. The applicability and scope of precedents on disclosure of criminal antecedents (including principles in Association for Democratic Reforms / PUCL and Krishnamoorthy) to the statutory scheme under the Kerala Panchayat Raj Act post-amendment (Act 30 of 2005). ISSUE-WISE DETAILED ANALYSIS Issue 1 - Whether non-disclosure in Form 2A constitutes 'details ... fake' under Section 102(1)(ca) read with Section 52(1A) Legal framework: Section 52(1A) mandates that every candidate submit, inter alia, 'details regarding ... criminal cases in which he is involved at the time of submission of nomination' in the prescribed form. Section 102(1)(ca) permits declaring an election void where 'the details furnished by the elected candidate under sub-section (1A) of section 52 were fake.' Precedent treatment: The Court considered the trajectory from ADR/PUCL (right to disclosure) and later judicial treatment where non-disclosure was treated as affecting the electorate's right to know. However, Kerala's statute uniquely inserts clause (ca), making 'fake' details a statutory ground. Interpretation and reasoning: The Court analyses the ordinary and legal meanings of 'fake' (referencing dictionaries and forgery definitions) and concludes that 'fake' encompasses the false making or pass-off of information. Failure to disclose a past conviction causes the candidate to represent himself as free from that antecedent, amounting to a 'fake' detail for the purposes of Section 102(1)(ca). Ratio vs. Obiter: Ratio - Non-disclosure in Form No.2A can fall within 'details ... fake' in Section 102(1)(ca) because omission to disclose a conviction amounts to passing off a false state of affairs. Obiter - extensive lexical analysis of 'fake' and 'forgery' as background. Conclusion: As a general proposition, non-disclosure of a conviction in Form No.2A can fall within Section 102(1)(ca) and thus be a statutory ground to declare an election void, subject to the nature of the conviction and other contextual considerations. Issue 2 - Whether non-disclosure amounts to a 'corrupt practice' (undue influence) under Section 120(2) and thereby void under Section 102(1)(b) Legal framework: 'Corrupt practices' are defined in Section 120, with clause (2) defining 'undue influence' as any direct or indirect interference with the free exercise of any electoral right. Precedent treatment: Krishnamoorthy treated nondisclosure of criminal antecedents (under rules/notification then in force) as undue influence amounting to corrupt practice. That case applied where disclosure obligations existed in subordinate rules and there was no statutory ground equivalent to Section 102(1)(ca). Interpretation and reasoning: The Court distinguishes Krishnamoorthy on the basis that the Kerala Act, post-2005 amendment, contains a direct statutory provision (Section 102(1)(ca)) to address fake details; therefore, there is less need to subsume non-disclosure under the broader concept of 'undue influence.' The Court expresses doubts about treating every non-disclosure under Form 2A as 'undue influence' under Section 120(2), particularly where Section 52(1A)'s wording limits 'involvement' to cases at the time of nomination. Ratio vs. Obiter: Ratio - Krishnamoorthy is not mechanically extendable to the present statutory scheme where clause (ca) is available; non-disclosure need not be re-characterized as corrupt practice when clause (ca) applies. Obiter - cautionary remarks questioning wholesale application of 'undue influence' to all non-disclosures. Conclusion: Non-disclosure may, in appropriate circumstances, overlap with corrupt practice, but where the statute provides clause (ca) the proper route is to test non-disclosure under that clause rather than automatically treating it as undue influence under Section 120(2). Issue 3 - Scope of 'involvement in a criminal case at the time of submission of nomination' and interplay with Rule 6/Form 2A Legal framework: Section 52(1A) uses the temporal phrase 'at the time of submission of nomination.' Rule 6 and Form No.2A (subordinate legislation) require disclosure of both pending cases and convictions. Precedent treatment: The Court reviews statutory history and earlier orders (ADR/PUCL) showing both judicial encouragement of disclosure and later statutory/regulatory responses. It notes that where subordinate rules expanded disclosure obligations, courts earlier relied on 'undue influence' when the parent statute lacked an explicit ground. Interpretation and reasoning: The Court construes 'involvement ... at the time of submission' narrowly to mean (i) cases pending investigation/trial at that time; (ii) convictions/sentences current at that time; or (iii) convictions under appeal/revision at that time. Absent Rule 6/Form 2A, the appellant's past conviction (not involving him in a case at the nomination date) would likely fall outside Section 52(1A). But because Rule 6/Form 2A (not challenged) explicitly asks for past convictions, the broader disclosure required by the Rule is operative and the candidate's omission to disclose is governed by the form and by Section 102(1)(ca). Ratio vs. Obiter: Ratio - The statutory phrase 'at the time of submission' should be given a circumscribed meaning; however, subordinate legislation (Form 2A) legitimately requires disclosure of past convictions and, being unchallenged, is binding in application. Obiter - observations on limits of subordinate legislation vis-à-vis parent Act (Rule 6 not challenged so not decided ultra vires). Conclusion: Section 52(1A) by its language is limited to 'involvement' at nomination date, but Rule 6/Form 2A - not impugned - requires disclosure of past convictions; consequently, omission to disclose in Form 2A falls for consideration under Section 102(1)(ca). Issue 4 - Whether non-disclosure of conviction under Section 38 read with Section 52 of the Kerala Police Act (dharna/offence attracting small fine) suffices to void the election Legal framework: Nature of the underlying conviction is material to the statutory object of disclosure - the electorate's right to make an informed choice and the decriminalization of politics. Precedent treatment: ADR/PUCL and Krishnamoorthy emphasize disclosure of serious/heinous offences, corruption, moral turpitude. Those cases highlight the democratic purpose behind disclosure requirements. Interpretation and reasoning: The Court analyses the Kerala Police Act provisions and characterizes convictions under Sections 38/52 as offences for disobedience of police directions - regulatory, not substantive crimes akin to IPC or special penal statutes addressing corruption/serious crime. The Court reasons that protest/dharna is a political tool and that these police provisions are meant for regulation of police power, not to brand participants as criminals on the same footing as substantive offences of moral turpitude. Extending the disclosure regime to such petty regulatory convictions would overreach the object of the disclosure provisions. Ratio vs. Obiter: Ratio - Non-disclosure of a petty regulatory conviction under the Kerala Police Act for conducting a dharna does not, in the circumstances, warrant declaring the election void; such conviction is not of the character contemplated by the disclosure jurisprudence as necessarily material to the electorate's informed choice. Obiter - historical note on the colonial origin of police statutes and caution against blind application. Conclusion: On the facts, the failure to disclose the conviction under the Kerala Police Act for a dharna is not a ground to void the election. Though non-disclosure can ordinarily engage Section 102(1)(ca), the character and context of this conviction make setting aside the election inappropriate. Issue 5 - Applicability of ADR/PUCL and Krishnamoorthy post-amendment to Kerala Act Legal framework and precedent treatment: ADR/PUCL established the public interest and constitutional basis for disclosure; Krishnamoorthy applied undue influence reasoning where subordinate rules mandated disclosure but the parent statute lacked an express ground. Kerala Act (Act 30 of 2005) introduced Section 52(1A) and Section 102(1)(ca), making non-disclosure/fake details a statutory ground. Interpretation and reasoning: The Court holds that where the statute itself now addresses fake details (clause (ca)), there is no need to subsume non-disclosure issues under 'undue influence' (Krishnamoorthy's route). The earlier decisions remain authoritative on the object and value of disclosure, but their reasoning is to be applied contextually; Krishnamoorthy is distinguished rather than overruled. Ratio vs. Obiter: Ratio - ADR/PUCL remain foundational for disclosure policy; Krishnamoorthy is distinguishable when a statute directly provides the remedy (Section 102(1)(ca)). Obiter - historical narrative of legislative and regulatory changes. Conclusion: ADR/PUCL principles on disclosure apply as policy; Krishnamoorthy's transformation of rule-violation into 'undue influence' is not to be mechanically applied where the Kerala statute provides a direct ground (clause (ca)). Final Disposition on the Present Facts (Court's Conclusion) Although omission to disclose a past conviction in Form 2A can amount to 'fake' details under Section 102(1)(ca), the specific conviction here - under Section 38 read with Section 52 of the Kerala Police Act for participating in a dharna and paying a petty fine - is regulatory in character and not of the nature that the disclosure regime aims to capture as disqualifying. Applying the statutory scheme and purposive principles, the Court held that the trial and appellate courts erred in voiding the election on grounds of non-disclosure and/or corrupt practice; the election petition was dismissed. (Ratio: statutory clause (ca) covers fake details, but its application depends on the nature/context of the conviction; in the present fact pattern the conviction did not warrant voiding the election.)