TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 1248
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.... the wings of the State are absolutely significant, in a way, imperative. They are not only to be treated as essential concepts and remembered as glorious precepts but also to be practised so that in the conduct of every individual they are concretely and fruitfully manifested. The crucial recognised ideal which is required to be realised is eradication of criminalisation of politics and corruption in public life. When criminality enters into the grass-root level as well as at the higher levels there is a feeling that 'monstrosity' is likely to wither away the multitude and eventually usher in a dreadful fear that would rule supreme creating an incurable chasm in the spine of the whole citizenry. In such a situation the generation of today, in its effervescent ambition and volcanic fury, smothers the hopes, aspirations and values of tomorrow's generation and contaminate them with the idea to pave the path of the past, possibly thinking, that is the noble tradition and corruption can be a way of life and one can get away with it by a well decorated exterior. But, an intervening and pregnant one, there is a great protector, and an unforgiving one, on certain occasions and some situat....
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....me No. 10 of 2001. During investigation, the police found certain other facets and eventually placed eight different chargesheets, being C.C. Nos. 3, 4, 5, 6, 7, 8, 9 and 10 of 2004 before the Judicial Magistrate-IV, Coimbatore and the Magistrate had taken cognizance much before the Election Notification. Factum of taking cognizance and thereafter framing of charges in all the eight cases for the offences under Sections 120-B, 406, 408 and 477-A of the Indian Penal Code, 1860 ('IPC' for short) prior to the cut-off date are not in dispute. The appellant had filed a declaration and the affidavit only mentioning Crime No 10 of 2001 and did not mention the details of the chargesheets filed against him which were pending trial. In this backdrop, the Election Petition was filed to declare his election as null and void on the ground that he could not have contested the election and, in any case, the election was unsustainable. 4. In the Election Petition, the petitioner mentioned all the eight case by way of a chart. It is as follows: S.No. Crime No.10/01/Section C.C. No. Complainant Court 01. U/s 406 477A IPC 3/2004 CCIW/CID JM IV Coimbatore 02. U/s 120 (b) r/w 406 477 A IPC....
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...., Notification issued by the Election Commission of India and the Notification of the State Election Commission, Sections 259 and 260 of the 1994 Act and adverted to the issues whether there was suppression by the elected candidate and in that context referred to the 'Form' to be filled up by a candidate as per the Notification dated 1.9.2006 and opined that an element of sanctity and solemnity is attached to the said declaration, by the very fact that it is required to be in the form of an affidavit sworn and attested in a particular manner. The High Court emphasised on the part of the verification containing the declaration that "nothing material has been concealed". On the aforesaid analysis, the High Court held that the elected candidate had not disclosed the full and complete information. Thereafter, the High Court referred to the authority in Association for Democratic Reforms (supra), incorporation of Sections 33A and 44A in the 1951 Act, Rule 4A of the Conduct of Election Rules, 1961 and Form 26 to the said Rules, Section 125A of the 1951 Act, the definition of 'Affidavit' as per Section 3(3) of the General Clauses Act, 1897, the conceptual meaning of Oath, Section 8 of The....
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....m of government, where election as a Member of Parliament or as a Member of Legislative Assembly is of utmost importance for governance of the country, whether, before casting votes, voters have a right to know relevant particulars of their candidates? Further connected question is - whether the High Court had jurisdiction to issue directions, as stated below, in a writ petition filed under Article 226 of the Constitution of India?" 12. To answer the said question, it referred to the authorities in Vineet Narain V. Union of India (1998) 1 SCC 226, Kihoto Hollohan V. Zachillhu 1992 Supp (2) SCC 651 and opined that in case when the Act or Rules are silent on a particular subject and the authority implementing the same has constitutional or statutory power to implement it, the Court can necessarily issue directions or orders on the said subject to fill the vacuum or void till the suitable law is enacted; that one of the basic structures of our Constitution is "republican and democratic form of government and, therefore, the superintendence, direction and control of the "conduct of all elections" to Parliament and to the legislature of every State vests in the Election Commission; and....
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....nformation on the following aspects in relation to his/her candidature: (1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past - if any, whether he is punished with imprisonment or fine. (2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof. (3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues. (5) The educational qualifications of the candidate." 15. After the said decision was rendered, The Representation of the People (Amendment) Ordinance, 2002, 4 of 2002 was promulgated by the President of India on 24.8.2002 and the validity of the same was called in question under Article 32 of the Constitution of India. The three-Judge Bench in People's Union for Civil Liberties (PUCL) (supra) posed the following questions:- "Should we not have su....
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..... Candidate to furnish information only under the Act and the rules.-Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the rules made thereunder." 17. Though various issues were raised in the said case, yet we are really to see what has been stated with regard to the disclosure, and the Ordinance issued after the judgment. M.B. Shah, J., in his ultimate analysis held as follows:- "What emerges from the above discussion can be summarised thus: (A) The legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective but the legislature has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the court. A declaration that an order made by a court of law is void is normally a part of the judicial function. The legislature cannot declare that decision rendered by the Court is not binding or is of no effe....
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....ng system and to have competent legislatures. (E) It is established that fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the Court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. During the last more than half a decade, it has been so done by this Court consistently. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by this Court." Being of this view, he declared Section 33-B as illegal, null and void. 18. P. Venkatarama Reddi, J. adverted to freedom of expression and right to information in the context of voters' right to know the details of contesting candidates and right of the media and others to enlighten the voter. As a principle, it was laid down by him that right to make a choice by means of a ballot is a part of freedom of expression. Some of the eventual conclusions recorded by him that are pertinent for our present purpose, are:- "(1) Securing informat....
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....dia. To control the illeffects of money power and muscle power the commissions recommend that election system should be overhauled and drastically changed lest democracy would become a teasing illusion to common citizens of this country. Not only a halfhearted attempt in the direction of reform of the election system is to be taken, as has been done by the present legislation by amending some provisions of the Act here and there, but a much improved elections system is required to be evolved to make the election process both transparent and accountable so that influence of tainted money and physical force of criminals do not make democracy a farce - the citizen's fundamental "right to information" should be recognised and fully effectuated. This freedom of a citizen to participate and choose a candidate at an election is distinct from exercise of his right as a voter which is to be regulated by statutory law on the election like the RP Act." 20. The purpose of referring to the aforesaid authorities in extenso is to focus how this Court has given emphasis on the rights of a voter to know about the antecedents of a candidate, especially, the criminal antecedents, contesting the elec....
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....long with the nomination paper is to effectuate the fundamental right of the citizen under Article 19(1)(a) of the Constitution of India and the citizens are required to have the necessary information in order to make a choice of their voting and, therefore, when a candidate files an affidavit with blank particulars at the time of filing of the nomination paper, it renders the affidavit itself nugatory. 21. It is apt to note here that the Court referred to paragraph 73 of the judgment in People's Union for Civil Liberties (PUCL) (supra) case and elaborating further ruled thus: "If we accept the contention raised by Union of India, viz., the candidate who has filed an affidavit with false information as well as the candidate who has filed an affidavit with particulars left blank should be treated at par, it will result in breach of fundamental right guaranteed under Article 19(1) (a) of the Constitution, viz., 'right to know' which is inclusive of freedom of speech and expression as interpreted in Association for Democratic Reforms (supra)." 22. The Court further held that filing of an affidavit with blank places will be directly hit by Section 125A(i) of the 1951 Act. Ultimately....
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.... reject the nomination paper when affidavit is filed with blank particulars. (vi) The candidate must take the minimum effort to explicitly remark as 'NIL' or 'Not Applicable' or 'Not known' in the columns and not to leave the particulars blank. (vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her." 24. The fear to disclose details of pending cases has been haunting the people who fight the elections at all levels. Fear, compels a man to take the abysmal and unfathomable route; whereas courage, mother of all virtues, not only shatters fears, but atrophies all that come in its way without any justification and paralyses everything that does not deserve to have locomotion. Democracy nurtures and dearly welcomes transparency. Many a cobweb is woven or endeavoured to be woven to keep at bay what sometimes becomes troublesome. Therefore, Rules 41(2) and (3) and 49-O of the Conduct of Election Rules, 1961 (for short, 'the Rules') came into force, to....
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....hus in a vibrant democracy, the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting." 26. Ultimately, the Court declared Rules 41(2) and (3) and Rule 49-O of the Rules as ultra vires the Section 128 of the 1951 Act and Article 19(1)(a) of the Constitution to the extent they violate the secrecy of voting and accordingly directed the Election Commission to provide necessary provision in the ballot papers/EVMs and another button called "None of the Above" (NOTA). 27. The aforesaid decisions pronounce beyond any trace of doubt that a voter has a fundamental right to know about the candidates contesting the elections as that is essential and a necessary concomitant for a free and fair election. In a way, it is the first step. The voter is entitled to make a choice after coming to know the antecedents of a candidate a requisite for making informed choice. It has been held by Shah, J. in People's Union of Civil Liberties (supra) that the voter's fundamental right to know the antecedents of a candidate is independent of ....
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....a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity. 58. The direction can also be supported by the fact that in the existing system a dissatisfied voter ordinarily does not turn up for voting which in turn provides a chance to unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative one. Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate thinks about them." 30. Having stated about the choice of a voter, as is requisite in the case at hand, we are required to dwell upon the failure to disclose the criminal cases pending against a candidate and its eventual impact; whether it would come within the concept of undue influence and thereby corrupt practice as per Section 123(2) of the 1951 Act. To appreciate the said facet, the sanctity of constitutional democracy and how it is dented by the criminalisation of politics are to be taken note of. The importance of constitutional democracy has been highlighted from variou....
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....ent that the President of our country felt constrained to make references to the phenomenon in his Addresses to the Nation on the eve of the Republic Day in 1996 as well as in 1997." 32. In Anukul Chandra Pradhan V. Union of India and others (1997) 6 SCC 1, the Court was dealing with the provisions made in the election law which excluded persons with criminal background and the kind specified therein, from the elections as candidates and voters. In that context, the Court held thus: "......The object is to prevent criminalisation of politics and maintain probity in elections. Any provision enacted with a view to promote this object must be welcomed and upheld as subserving the constitutional purpose. The elbow room available to the legislature in classification depends on the context and the object for enactment of the provision. The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus,....
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....een taken note of on various occasions by this Court. Justice J.S. Verma Committee Report on Amendments to Criminal Law has proposed insertion of Schedule 1 to the 1951 Act enumerating offences under IPC befitting the category of "heinous" offences. It recommended that Section 8(1) of the 1951 Act should be amended to cover, inter alia, the offences listed in the proposed Schedule 1 and a provision should be engrafted that a person in respect of whose acts or omissions a court of competent jurisdiction has taken cognizance under Sections 190(1)(a), (b) or (c) of the Code of Criminal Procedure or who has been convicted by a court of competent jurisdiction with respect to the offences specified in the proposed expanded list of offences under Section 8(1) shall be disqualified from the date of taking cognizance or conviction, as the case may be. It further proposed that disqualification in case of conviction shall continue for a further period of six years from the date of release upon conviction and in case of acquittal, the disqualification shall operate from the date of taking cognizance till the date of acquittal." 34. Criminalisation of politics is absolutely unacceptable. Corru....
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....nfluence and as a fallout to corrupt practice. The issue is important, for misinformation nullifies and countermands the very basis and foundation of voter's exercise of choice and that eventually promotes criminalisation of politics by default and due to lack of information and awareness. The denial of information, a deliberate one, has to be appreciated in the context of corrupt practice. Section 123 of the 1951 Act deals with corrupt practices. Sub-Section 2 of Section 123 deals with undue influence. The said sub-Section reads as follows: "(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right: Provided thatPage (a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who- (i) threatens any candidate or any elector, or any person in whom a candidate or an elector interest, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or (ii) induces or atte....
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....n adopted as it is a deemed conception for all purposes. Thus, a candidate is bound to provide the necessary information at the time of filing nomination paper and for the said purpose, the Returning Officer can compel the candidate to furnish the relevant information and if a candidate, as has been held in Resurgence India (supra), files an affidavit with a blank particulars would render the affidavit nugatory. As has been held in the said judgment if a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is liable to be rejected. It has been further directed in the said case that the candidate must make a minimum effort to explicitly remark as 'Nil' or 'Not Applicable' or 'Not Known' in the columns and not to leave the particulars blank. It is because the citizens have a fundamental right to know about the candidate, for it is a natural right flowing from the concept of democracy. Thus, if a candidate paves the path of adventure to leave the column blank and does not rectify after the reminder by the Returning Officer, his nomination paper is fit to be rejected. But, once he fills up the column with some particulars and deliber....
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....ld constitute an undue influence. In the context of criminal antecedents, the failure to disclose the particulars of any charges framed, cognizance taken, or conviction for any offence that involves moral turpitude would constitute an act that causes undue influence upon the voters. G. Purity of public life has its own hallowedness and hence, there is emphasis on the importance of truth in giving information. Half truth is worse than silence; it has the effect potentiality to have a cacophony that can usher in anarchy. Learned Amicus Curiae has commended us to certain paragraphs from Association for Democratic Reforms (supra), People's Union for Civil Liberties (PUCL) (supra) and Manoj Narula (supra). 41. Mr. Maninder Singh, learned Additional Solicitor General, who was requested to assist us, has submitted that to sustain the paradigms of constitutional governance, it is obligatory on the part of the candidate to strictly state about the criminal cases pending against him, especially, in respect of the offences which are heinous, or involve moral turpitude or corruption. He would submit, with all fairness at his command, that for democracy to thrive, the 'right to know' is para....
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....ence by stating that the words of the English statute lay emphasis upon the individual aspect of the exercise of undue influence. Thereafter, the Court proceeded to state about the undue influence under the Indian law by observing thus: "...The Indian law, on the other hand, does not emphasize the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause. What is material under the Indian law, is not the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right. Decisions of the English courts, based on the words of the English statute, which are not strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents in this country." [Emphasis added] After so stating, the Court considered the submission that a religious leader has as much the right to freedom of speech as any other citizen and, that, therefore, exhortation in favour of a particular candidate should not have the result of vitiating the election. Elaborating further, it has been held: "......... ....
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.... the People Act may be wider. It will therefore be useful to refer to cases under the election law to see how election tribunals have looked at the matter while considering the scope of the words "undue influence"." 46. The Court referred to the authority in R.B. Surendra Narayan Sinha V. Amulyadhone Roy 1940 IC 30 where the question arose whether by issuing a whip on the day of election requesting the members to cast their preference in a particular order, the leader of a party exercises undue influence and the answer was given in the negative. A reference was made to Linge Gowda V. Shivananjappa (1953) 6 Ele LR 288 (Ele. Tri Bangalore), wherein it has been held that a leader of a political party was entitled to declare the public the policy of the party and ask the electorate to vote for his party without interfering with any electoral right and such declarations on his part would not amount to undue influence under the 1951 Act. In Mast Ram V. S. Iqbal Singh (1955) 12 Ele LR 34 (Ele Tri Amritsar), the legitimate exercise of influence by a political party or an association should not be confused with undue influence. After referring to various authorities, the Court opined thus:....
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....ch precedes the second stage i.e. during the stage when he is making his choice of the candidate whom he would support. This argument was sought to be buttressed by the fact that canvassing is permissible during the first stage, and, therefore, the interference or attempted interference contemplated by Section 171-C can only be that which is committed at the stage when the elector exercises his right i.e. after he has made up his mind to vote for his chosen candidate or to refrain from voting. It was further argued that the words used in Section 171-C were "the free exercise of vote" and not "exercise of free vote". The use of those words shows that canvassing or propaganda, however virulent, for or against a candidate would not amount to undue influence, and that under influence can only mean some act by way of threat or fear or some adverse consequence administered at the time of casting the vote." Repelling the said contention, the Court held thus: "We do not think that the Legislature, while framing Chapter IX-A of the Code ever contemplated such a dichotomy or intended to give such a narrow meaning to the freedom of franchise essential in a representative system of Governmen....
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....allowed to canvass support by all legal and legitimate means. They may propound their programmes, policies and views on various questions which are exercising the minds of the electors. This exercise of the right by a candidate or his supporters to canvass support does not interfere or attempt to interfere with the free exercise of the electoral right. What does, however, attempt to interfere with the free exercise of an electoral right is, if we may use the expression, "tyranny over the mind". If the contention of the respondent is to be accepted, it would be quite legitimate on the part of a candidate or his supporter to hypnotise a voter and then send him to vote. At the stage of casting his ballot paper there would be no pressure cast on him because his mind has already been made up for him by the hypnotiser. It was put like this in a book on Elections: "The freedom of election is two-fold; (1) freedom in the exercise of judgment. Every voter should be free to exercise his own judgment, in selecting the candidate he believes to be best fitted to represent the constituency; (2) Freedom to go and have the means of going to the poll to give his vote without fear or intimidation.....
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....se. The proviso illustrates that ordinarily interference with the free exercise of electoral right involves either violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The prefix "undue" indicates that there must be some abuse of influence. "Undue influence" is used in contra-distinction to "proper influence". Construed in the light of the proviso, clause (2) of Section 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate. Indeed, such proper and peaceful persuasion is the motive force of our democratic process. We are unable to appreciate how the publication of this poster interfered or was calculated to interfere with the free exercise of the electoral right of any person. There was nothing in it which amounted to a threat of injury or undue inducement of the kind inhibited by Section 123(2)." 49. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra (1976) 2 SCC 17, a three-Judge Bench ....
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..... If that ground is religion, which is put on the same footing as race, caste, or language as an objectionable ground for seeking votes, it is not permissible. On the other hand, if support is sought on a ground distinguishable from those falling in the prohibited categories, it will not be struck by Section 123 of the Act whatever else it may not offend. It is then left to the electorate to decide whether a permissible view is right or wrong." 50. In Aad Lal v. Kanshi Ram (1980) 2 SCC 350, while deliberating on undue influence as enshrined under Section 123(2) of the 1951 Act, it has been held thus: "It has to be remembered that it is an essential ingredient of the corrupt practice of "undue influence" under sub-section (2) of Section 123 of the Act, that there should be any "direct or indirect interference or attempt to interfere" on the part of the candidate or his agent, or of any other person with the consent of the candidate or his agent, "with the free exercise of any electoral right". There are two provisos to the sub-section, but they are obviously not applicable to the controversy before us. It was therefore necessary, for the purpose of establishing the corrupt practic....
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....ndia (2014) 3 SCC 222. Thus, the first part of Section 123(2) is not restricted or controlled by the provisos. 53. From the aforesaid authorities, the following principles can be culled out:- (i) The words "undue influence" are not to be understood or conferred a meaning in the context of English statute. (ii) The Indian election law pays regard to the use of such influence having the tendency to bring about the result that has contemplated in the clause. (iii) If an act which is calculated to interfere with the free exercise of electoral right, is the true and effective test whether or not a candidate is guilty of undue influence. (iv) The words "direct or indirect" used in the provision have their significance and they are to be applied bearing in mind the factual context. (v) Canvassing by a Minister or an issue of a whip in the form of a request is permissible unless there is compulsion on the electorate to vote in the manner indicated. (vi) The structure of the provisions contained in Section 171-C of IPC are to be kept in view while appreciating the expression of 'undue influence' used in Section 123(2) of the 1951 Act. (vii) The two provisos added to Section 123(2) d....
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....mmon law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation." 55. The purpose of referring to the same is to remind one that the right to contest in an election is a plain and simple statutory right and the election of an elected candidate can only be declared null and void regard being had to the grounds provided in the statutory enactment. And the ground of 'undue influence' is a part of corrupt practice. 56. Section 100 of the 1951 Act provides for grounds for declaring election to be void. Section 100(1) which is relevant for the present purpose reads as under: "100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or (b) that....
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....s: "If we were not to keep this distinction in mind there would be no difference between Section 100(1)(b) and 100(1)(d) insofar as an agent is concerned. We have shown above that a corrupt act per se is enough under Section 100(1)(b) while under Section 100(1)(d) the act must directly affect the result of the election insofar as the returned candidate is concerned. Section 100(1)(b) makes no mention of an agent while Section 100(1)(d) specifically does. There must be some reason why this is so. The reason is that an agent cannot make the candidate responsible unless the candidate has consented or the act of the agent has materially affected the election of the returned candidate. In the case of any person (and he may be an agent) if he does the act with the consent of the returned candidate there is no need to prove the consent of the returned candidate and there is no need to prove the effect on the election." 60. In Manohar Joshi V. Nitin Bhaurao Patil and Anr. (1996) 1 SCC 169, a three-Judge Bench reiterated the principle by stating that: "The distinction between clause (b) of sub-section (1) and sub-clause (ii) of clause (d) therein is significant. The ground in clause (b) ....
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....ction (1), whoever-- (a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or (b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1). (3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section." The said provision has been referred to by the Constitution Bench in Shiv Kripal Singh's case. 62. At this juncture, it is fruitful to refer to Notes on Clauses which are relevant for the present purpose when the Bill No. 106 of 1950 was introduced. It reads as follows: "Clauses 121 to 133 deal with certain offences with respect to elections. It may be pointed out that Chapter IX-A of the Indian Penal Code already contains provisions for punishment for the corrupt pra....
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....due influence at an election consists in voluntary interference or attempt at interference with the free exercise of any electoral right. Any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right would amount to undue influence. But even though the definition in sub-s. (1) of s. 171-C is wide in terms it cannot take in mere canvassing in favour of a candidate at an election. If that were so, it would be impossible to run democratic elections. Further sub-s. (2) of s. 171-C shows what the nature of undue influence is though of course it does not cut down the generality of the provisions contained in sub-section (1). Where any threat is held out to any candidate or voter or any person in whom a candidate or voter is interested and the threat is of injury of any kind, that would amount to voluntary interference or attempt at interference with the free exercise of electoral right and would be undue influence. Again where a person induces or attempts to induce a candidate, or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, that wou....
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....d polling officers at polling stations; (aaa) the form of contribution report; (b) the checking of voters by reference to the electoral roll; (bb) the manner of allocation of equitable sharing of time on the cable television network and other electronic media; (c) the manner in which votes are to be given both generally and in the case of illiterate voters or voters under physical or other disability; (d) the manner in which votes are to be given by a presiding officer, polling officer, polling agent or any other person, who being an elector for a constituency is authorised or appointed for duly at a polling station at which he is not entitled to vole; (e) the procedure to be followed in respect of the lender of vote by a person representing himself to be an elector after another person has voted as such elector; (ee) the manner of giving and recording of voles by means of voting machines and the procedure as to voting to be followed at polling stations where such machines are used; (f) the procedure as to voting to be followed at elections held in accordance with the system of proportional representation by means of the single transferable vote; (g) the scrutiny and counti....
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....h framed the charge(s) (e) Date(s) on which the charge(s) was/were framed (f) Whether all or any of the proceedings(s) have been stayed by any Court(s) of competent jurisdiction (ii) The following case(s) is /are pending against me in which cognizance has been taken by the court other than the cases mentioned in item (i) above:- (a) Name of the Court, Case No. and date of order taking cognizance: (b) The details of cases where the court has taken cognizance, section(s) of the Act(s) and description of the offence(s) for which cognizance taken (c) Details of Appeal(s)/Application(s) for revision (if any) filed against the above order(s) (6) I have been/have not been convicted, of an offence(s) [other than any offence (s) referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8 of the Representation of the People Act, 1951 (43 of 1951)] and sentenced to imprisonment for one year or more. If the deponent is convicted and punished as aforesaid, he shall furnish the following information: In the following case, I have been convicted and sentenced to imprisonment by a court of law: (a) The Details of cases, sec....
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.... Reforms case, the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. In the case of assets and liabilities, it would be very difficult for the Returning Officer to consider the truth or otherwise of the details furnished with reference to the 'documentary proof'. Very often, in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to contradict the objector's version. It is true that the aforesaid directions issued by the Election Commission are not under challenge but at the same time prima facie it appears that the Election Commission is required to revise its instructions in the light of directions issued in Assn for Democratic Reforms case and as provided under the Representation of the People Act and its third Amendment." In Resurgence India (supra), the aforequoted said paragraph has been explained thus: "The aforesaid paragraph, no doubt, stresses on the....
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....nalisation of politics and preservation of a healthy and growing democracy. The right of a voter to know has been accentuated. As a part of that right of a voter, not to vote in favour of any candidate has been emphasised by striking down Rules 41(2), 41(3) and 49-O of the Rules. In Association for Democratic Reforms (supra), it has been held thus: "For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, maybe illiterate, so that they can decide intelligently, whom to vote for. In our opinion, the decision of even an illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens - voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of ....
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....ia v. Union of India (1995) 4 SCC 611 and Kuldip Nayar v. Union of India (2006) 7 SCC 1. It was pronounced with asseveration that democracy is the basic and fundamental structure of the Constitution. There is no shadow of doubt that democracy in India is a product of the rule of law and also an embodiment of constitutional philosophy. 74. Having stated about the need for vibrant and healthy democracy, we think it appropriate to refer to the distinction between disqualification to contest an election and the concept or conception of corrupt practice inhered in the words "undue influence". Section 8 of the 1951 Act stipulates that conviction under certain offences would disqualify a person for being a Member either of House of Parliament or the Legislative Assembly or Legislative Council of a State. We repeat at the cost of repetition unless a person is disqualified under law to contest the election, he cannot be disqualified to contest. But the question is when an election petition is filed before an Election Tribunal or the High Court, as the case may be, questioning the election on the ground of practising corrupt practice by the elected candidate on the foundation that he has no....
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....ree exercise of the right to vote. At this juncture, we are obliged to say that this Court in certain decisions, as has been noticed earlier, laid down what would constitute "undue influence". The said pronouncements were before the recent decisions in PUCL (supra), PUCL (NOTA) (supra) and Association of Democratic Reforms (supra) and other authorities pertaining to corruption were delivered. That apart, the statutory provision contained in Sections 33, 33A and Rules have been incorporated. 76. In this backdrop, we have to appreciate the spectrum of "undue influence". In PUCL (supra) Venkattarama Reddi, J. has stated thus: "Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom". 77. In Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh (2001) 3 SCC 594, the Court observed that: "Clean, efficient and benevolent administration are the essential features of good governance which in turn depends upon persons of competency and good character". 78. From the aforesaid, it is luculent t....
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....Madam, Please refer to the Commission's instructions regarding dissemination of information in the affidavits filed by the candidates along with the nomination papers. The Commission has, inter alia, directed that copies of affidavits should be displayed on the notice board of RO/ARO, and in cases where offices of RO and ARO are outside the boundary of the constituency concerned, copies of affidavits should be displayed in the premises of a prominent public office within the limits of the constituency. Further, affidavits of all contesting candidates are required to be uploaded on the website of the CEO 2. There are complains at times that in the absence of adequate publicity/awareness mechanism, the general public is not sensitized about the availability of the affidavits filed by the candidates with the result that the affidavits do not fully serve the intended purpose of enabling the electors to know the background of the candidates so as to enable them to make an informed choice of their representative. 3. The Commission has directed that, at every election, press release should be issued at the State and District level stating that affidavits of the candidates are available....
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....f information. In case the office of the ARO is at a place different from the office of the RO, then a copy each of the affidavits is also displayed on the notice board in ARO's office. If the offices of the both RO and ARO are outside the territorial limits of the constituency, copies of the affidavits are to be displayed at a prominent public place within the constituency. Further, if any one seeks copies of the affidavits from the RO, copies are to be supplied. 2. There have been demands from different quarters seeking wider dissemination of the information declared in the affidavits filed by the contesting candidates, for easier access to the electors. Accordingly, views of the CEOs were sought in this regard. The responses received from the various Chief Electoral Officers have been considered by the Commission. The response received from CEOs showed that most of the CEOs are in favour of displaying the abstracts part of the affidavit as given in PART-II of the affidavit in Form 26, in different public officers in the constituency. 3. The Commission after due consideration of the matter has decided that for wider dissemination of information, apart from existing mode of diss....
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....orrupt practice. In an election petition, the election petitioner is required to assert about the cases in which the successful candidate is involved as per the rules and how there has been non-disclosure in the affidavit. Once that is established, it would amount to corrupt practice. We repeat at the cost of repetition, it has to be determined in an election petition by the Election Tribunal. 84. Having held that, we are required to advert to the factual matrix at hand. As has been noted hereinbefore, the appellant was involved in 8 cases relating to embezzlement. The State Election Commission had issued a notification. The relevant part of the said notification reads as under:- "1. Every candidate at the time of filing his nomination paper for any election or casual election for electing a member or Members or Chairperson or Chairpersons of any Panchayat or Municipality, shall furnish full and complete information in regard to all the five matters referred in paragraph-5 of the preamble, in an Affidavit or Declaration, as the case may be, in the format annexed hereto:- Provided that having regard to the difficulties in swearing an affidavit in a village, a candidate at the ele....