TaxTMI 
TaxTMI 
2015 (2) TMI 1248
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.... prevalence of mutual deference among all the wings of the State are absolutely significant, in a way, imperative. They are not only to be treated as essential concepts and 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 ....
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.... arrayed as an accused in complaint case in Crime No. 10 of 2001. During investigation, the police found certain other facets and eventually placed eight different chargesheets, being C.C. Nos. 3, 4, 5, 6, 7, 8, 9 and 10 of 2004 before the Judicial 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 3/200....
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....Association for Democratic Reforms, (2002) 5 SCC 294 People's Union for Civil Liberties (PUCL) & Another V. Union of India and Another (2003) 4 SCC 399, 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 125....
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.... In Association for Democratic Reforms (supra), the Court posed the following important question:- "...In a nation wedded to republican and democratic form of government, where election as a Member of Parliament or as a Member of Legislative Assembly is of utmost importance for governance of the country, whether, before casting votes, voters have a right to know relevant particulars of their candidates? Further connected question is - whether the High Court had jurisdiction to issue directions, as stated below, in a writ petition filed under Article 226 of the Constitution of India?" 12. To answer the said question, it referred to the 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 sup....
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....of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature: (1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past - if any, whether he is punished with imprisonment or fine. (2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof. (3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues. (5) The educational qualifications of the candidate." 15. After the said decision was rendered, The Representation of the People (Amendment) Ordinance, 2002, 4 of 2002 was promulgated by the President of India on 24.8.2002 and the validity of the same was called in quest....
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....of the affidavit, delivered under sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered. 33-B. Candidate to furnish information only under the Act and the rules.-Notwithstanding anything contained in any judgment, decree or order of any court or any direction, order or any other instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any 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 ....
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....eaningless unless the citizens are well informed about the antecedents of a candidate. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures. (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 lai....
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.... after the other by the Government to which a reference has been made by Brother Shah, J., highlight the present political scenario where money power and muscle power have substantially polluted and perverted the democratic processes in India. To control the 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....
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....t the information given in the affidavit is correct, but leaving the contents blank would fulfil the objectives behind filing the same, and answered the question in the negative on the reasoning that the ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizen under Article 19(1)(a) of the Constitution of India and the citizens are required to have the necessary information in order to make a choice of their voting and, therefore, when a candidate files an affidavit with blank particulars at the 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 i....
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....r must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced. (v) We clarify to the extent that Para 73 of People's Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars. (vi) The candidate must take the minimum effort to explicitly remark as 'NIL' or 'Not Applicable' or 'Not known' in the columns and not to leave the particulars blank. (vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her." 24. The fear to disclose details of pending cases has been haunting the people who fight the elections at all levels. Fear, compels a man to take the abysmal and unfathomable route; whereas courage, mother of all virtues, not only shatters fears, but atrophies all that come in its way without any justification and paralyses everything that does not deserve to have locomotion. Democr....
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.... of our country. For democracy to survive, it is essential that the best available men should be chosen as people's representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. Thus in a vibrant democracy, the voter must be given an opportunity to choose none of the above (NOTA) button, which will indeed compel the political parties to nominate a sound candidate. This situation palpably tells us the dire need of negative voting." 26. Ultimately, the Court declared Rules 41(2) and (3) and Rule 49-O of the Rules as ultra vires the Section 128 of the 1951 Act and Article 19(1)(a) of the Constitution to the 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 vote....
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....on gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties. When the political parties will realise that a large number of people are expressing their disapproval with the candidates being put up by them, gradually there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity. 58. The direction can also be supported by the fact that in the existing system a dissatisfied voter ordinarily does not turn up for voting which in turn provides a chance to unscrupulous elements to impersonate the dissatisfied voter and cast a vote, be it a negative one. Furthermore, a provision of negative voting would be in the interest of promoting democracy as it would send clear signals to political parties and their candidates as to what the electorate thinks about them." 30. Having stated about the choice of a voter, as is requisite in the case at hand, we are required to dwell upon the failure to disclose the criminal cases pending against a candidate and its eventual impact; whether it would come within the concept of undue ....
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....ety. For some time now, it has been generally perceived that the nexus between politicians, bureaucrats and criminal elements in our society has been on the rise, the adverse effects of which are increasingly being felt on various aspects of social life in India. Indeed, the situation has worsened to such an extent that the President of our country felt constrained to make references to the phenomenon in his Addresses to the Nation on the eve of the Republic Day in 1996 as well as in 1997." 32. In Anukul Chandra Pradhan V. Union of India and others (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 la....
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....nstitution (2001), (vi) Election Commission of India - Proposed Electoral Reforms (2004), (vii) the Second Administrative Reforms Commission (2008), (viii) Justice J.S. Verma Committee Report on Amendments to Criminal Law (2013), and (ix) Law Commission Report (2014). 13. Vohra Committee Report and other reports have been taken note of on various occasions by 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 th....
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....oers and have to be tracked down by the same process of inquiry and investigation." 36. In this backdrop, we have looked and posed the question that whether a candidate who does not disclose the criminal cases in respect of heinous or serious offences or moral turpitude or corruption pending against him would tantamount to undue influence and as a fallout to corrupt practice. The issue is important, for misinformation nullifies and countermands the very basis and foundation of voter's exercise of choice and that eventually promotes criminalisation of politics by default and due to lack of information and awareness. The denial of information, a deliberate one, has to be appreciated in the context of corrupt practice. Section 123 of the 1951 Act deals with corrupt practices. Sub-Section 2 of Section 123 deals with undue influence. The said sub-Section reads as follows: "(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right: Provided thatPage (a) without prejudic....
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....oses of this Act:- (1) Bribery as defined in Clause (1) of Section 123 of the Representation of People Act, 1951. (Central Act XLIII of 1951) (2) Undue influence as defined in Clause (2) of the said section." 39. From the aforesaid provisions, it is clear as day that concept of undue influence as is understood in the context of Section 123(2) of the 1951 Act has been adopted as it is a 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 ci....
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....f an electoral right, may apply to a person or a body of persons. As clarified in Ram Dial v. Sant Lal, (1959) 2 SCR 748, Section 123 does not emphasise the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause. F. It is not every failure to disclose information that would constitute an undue influence. In the context of criminal antecedents, the failure to disclose the particulars of any charges framed, cognizance taken, or conviction for any offence that involves moral turpitude would constitute an act that causes undue influence upon the voters. G. Purity of public life has its own hallowedness and hence, there is emphasis on the 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....
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....314, and Shambhu Prasad Sharma V. Charandas Mahant (2012) 11 SCC 390, 44. At this stage, we think it condign to survey certain authorities how undue influence has been viewed by this Court and the relevant context therein. In Ram Dial v. Sant Lal AIR 1959 SC 855 while discussing about the facet of undue influence, the three-Judge Bench distinguished the words of English Law relating to undue influence by stating that the words of the English statute lay emphasis upon the individual aspect of the exercise of undue influence. Thereafter, the Court proceeded to state about the undue 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 Indi....
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....this connection refer to Section 123(2) of the Representation of the People Act 1951 which also defines "undue influence". The definition there is more or less in the same language as in Section 171-C of the Indian Penal Code except that the words "direct or indirect" have been added to indicate the nature of interference. It will be seen that if anything, the definition of "undue influence" in the Representation of the People Act may be wider. It will therefore be useful to refer to cases under the election law to see how election tribunals have looked at the matter while considering the scope of the words "undue influence"." 46. The Court referred to the authority in R.B. Surendra Narayan Sinha V. Amulyadhone Roy 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 ....
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.... and adverted to the issue of undue influence at elections as enumerated under Section 171-C. The argument that was advanced before the Court was to the following effect: "...the language of Section 171-C suggests that undue influence comes in at the second and not at the first stage, and therefore, it can only be by way of some act which impedes or obstructs the elector in his freely casting the vote, and not in any act which precedes the second stage i.e. during the stage when he is making his choice of the candidate whom he would support. This argument was sought to be buttressed by the fact that canvassing is permissible during the first stage, and, therefore, the interference or attempted interference contemplated by Section 171-C can only be that which is committed at the stage when the elector exercises his right i.e. after he has made up his mind to vote for his chosen candidate or to refrain from voting. It was further argued that the words used in Section 171-C were "the free exercise of vote" and not "exercise of free vote". The use of those words shows that canvassing or propaganda, however virulent, for or against a candidate would not amount to undue influence, and....
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.... the declaration of public policy having had its effect it would no longer have any effect on the physical final act of casting his vote. Sub-section (3) further proceeds on the basis that the expression "free exercise of his electoral right" does not mean that a voter is not to be influenced. This expression has to be read in the context of an election in a democratic society and the candidates and their supporters must naturally be allowed to canvass support by all legal and legitimate means. They may propound their programmes, policies and views on various questions which are exercising the minds of the electors. This exercise of the right by a candidate or his supporters to canvass support does not interfere or attempt to interfere with the free exercise of the electoral right. What does, however, attempt to interfere with the free exercise of an electoral right is, if we may use the expression, "tyranny over the mind". If the contention of the respondent is to be accepted, it would be quite legitimate on the part of a candidate or his supporter to hypnotise a voter and then send him to vote. At the stage of casting his ballot paper there would be no pressure cast on him bec....
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....r through various media in favour of a candidate by recounting the glories and achievements of that candidate or his political party in administrative or political field, does meddle with and mould the independent volition of electors, having poor reason and little education, in the exercise of their franchise. That such a wide construction would not be in consonance with the intendment of the legislature is discernible from the proviso to this clause. The proviso illustrates that ordinarily interference with the free exercise of electoral right involves either violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The prefix "undue" indicates that there must be some abuse of influence. "Undue influence" is used in contra-distinction to "proper influence". Construed in the light of the proviso, clause (2) of Section 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate. Indeed, such proper and peacef....
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....atements. We will, therefore, proceed to consider the particular facts of the case before us. xxxxx xxxxx xxxxx To return to the precise question before us now, we may repeat that what is relevant in such a case is what is professed or put forward by a candidate as a ground for preferring him over another and not the motive or reality behind the profession which may or may not be very secular or mundane. It is the professed or ostensible ground that matters. If that ground is religion, which is put on the same footing as race, caste, or language as an objectionable ground for seeking votes, it is not permissible. On the other hand, if support is sought on a ground distinguishable from those falling in the prohibited categories, it 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-sect....
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....n (1); the provisions of sub-section (2) are not restrictive of subsection (1) as, indeed is expressly stated by the words 'without prejudice to the generality of the powers conferred by sub-section (1)'." 52. Similar view has been expressed in V.T. Khanzode and Ors. V. Reserve Bank of India and Anr. (1982) 2 SCC 7 , D.K. Trivedi & Sons V. State of Gujarat (1986) Supp. SCC 20, State of J&K V. Lakhwinder Kumar (2013) 6 SCC 333, and BSNL V. Telecom Regulatory Authority of India (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 the....
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....ndidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office. Reiterating the law laid down in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency AIR 1952 SC 64 and Jagan Nath v. Jaswant Singh AIR 1954 SC 210 this Court held in Jyoti Basu v. Debi Ghosal (1982) 1 SCC 691: "8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation." 55. The purpose of referring to the same is to remind one that the right to contest in an election is a plain and simple statutory right and the election of an elected candidate can only be declared null and void regard being had to the grounds provided in the statutory enactment. And the ground of 'undue influence' is a part of corrupt practice. 56. Section 100 of the....
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....onsent of the returned candidate or his election agent. Thus, if the corrupt practice is proven on the foundation of Section 100(1)(b), the High Court is not to advert to the facet whether result of the election has been materially affected, which has to be necessarily recorded as a finding of a fact for the purpose of Section 100(1)(d)(ii). 59. In this context, we may refer to the authority in Samant N. Balkrishna and Anr. V. George Fernandez and Others(1969) 3 SCC 238, wherein Hidayatullah, C.J., speaking for the Court opined thus: "If we were not to keep this distinction in mind there would be no difference between Section 100(1)(b) and 100(1)(d) insofar as an agent is concerned. We have shown above that a corrupt act per se is enough under Section 100(1)(b) while under Section 100(1)(d) the act must directly affect the result of the election insofar as the returned candidate is concerned. Section 100(1)(b) makes no mention of an agent while Section 100(1)(d) specifically does. There must be some reason why this is so. The reason is that an agent cannot make the candidate responsible unless the candidate has consented or the act of the agent has materially affected the ele....
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....ch is unlimited and how the nature of interference can be unlimited. The ostensibility of the ground has been taken into consideration. In this context, we think it apt to reproduce Section 171-C that deals with undue influence at elections. The said provision reads as follows: "171C - Undue influence at elections (1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. (2) Without prejudice to the generality of the provisions of sub-section (1), whoever-- (a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or (b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, 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....
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....right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election......" 65. Similarly, in Baburao Patel (supra), the Court has compared Section 123(2) which defines undue influence, more or less, in the same language as in Section 171-C IPC except the words "direct or indirect" which have been added into the nature of interference. In the said case while dealing with the definition of Section 171-C IPC, the Court has observed thus: "It will be seen from the above definition that the gist of undue influence at an election consists in voluntary interference or attempt at interference with the free exercise of any electoral right. Any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right would amount to undue influence. But even though the definition in sub-s. (1) of s. 171-C is wide in terms it cannot take in mere canvassing in favour of a candidate at an election. If that were so, it would be impossible to run democratic elections. Further sub-s. (2) of s. 171-C shows what the nature of undue influence is though of course it does not cut down the generali....
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....punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction. At this stage, it is appropriate to refer to Section 169 of the 1951 Act, the same being pertinent in the context. It reads as under: "Section 169 - Power to make rules (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-- (a) the form, of affidavit under sub-section (2) of section 33A; (aa) the duties of presiding officers and polling officers at polling stations; (aaa) the form of contribution report; (b) the checking of voters by reference to the electoral roll; (bb) the manner of allocation of equitable sharing of time on the cable television network and other electronic media; (c) the manner in which votes are to be given both generally and in the case of illiterate voters or voters under physical or other disability; (d) the manner in which votes are to be given by a presiding officer, polling officer, polling agent or any other person, who being an elector for a constituency is authorised or appointed for duly....
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....en framed by the court(s) of competent jurisdiction. If the deponent is accused of any such offence(s) he shall furnish the following information:- (i) The following case(s) is /are pending against me in which charges have been framed by the court for an offence punishable with imprisonment for two years or more :- (a) Case/First Information Report No./ Nos. together with complete details of concerned Police Station/District/State (b) Section(s) of the concerned Act(s) and short description of the offence(s) for which charged (c) Name of the Court, Case No. and date of order taking cognizance: (d) Court(s) which framed the charge(s) (e) Date(s) on which the charge(s) was/were framed (f) Whether all or any of the proceedings(s) have been stayed by any Court(s) of competent jurisdiction (ii) The following case(s) is /are pending against me in which cognizance has been taken by the court other than the cases mentioned in item (i) above:- (a) Name of the Court, Case No. and date of order taking cognizance: (b) The details of cases where the court has taken cognizance, section(s) of the Act(s) and description of the offence(s) for which cogniza....
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....'Not Applicable' or 'Not known' in the columns. In the said case, it has been clarified that para 73 of People's Union for Civil Liberties (PUCL) case will not come in the way of Returning Officer to reject the nomination paper when the affidavit has been filed with blank particulars. It is necessary to understand what has been stated in para 73 of People's Union for Civil Liberties (PUCL) case, how it has been understood and clarified in Resurgence India (supra). Para 73 of People's Union for Civil Liberties (PUCL) case reads as follows: "While no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment in Assn for Democratic Reforms case, the direction to reject the nomination paper 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....
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....e liable for rejection. However, we may hasten to clarify that it is not the issue involved in the present case. The controversy which has emanated in this case is whether non-furnishing of the information while filing an affidavit pertaining to criminal cases, especially cases involving heinous or serious crimes or relating to corruption or moral turpitude would tantamount to corrupt practice, regard being had to the concept of undue influence. We have already referred to the authorities in Association for Democratic Reforms (supra) and People's Union for Civil Liberties (NOTA case), (supra). Emphasis on all these cases has been given with regard to essential concept of democracy, criminalisation of politics and preservation of a healthy and growing democracy. The right of a voter to know has been accentuated. As a part of that right of a voter, not to vote in favour of any candidate has been emphasised by striking down Rules 41(2), 41(3) and 49-O of the Rules. In Association for Democratic Reforms (supra), it has been held thus: "For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involveme....
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....ective ethos, frustrates the hopes and aspirations of the citizens and has the potentiality to obstruct, if not derail, the rule of law. Democracy, which has been best defined as the government of the people, by the people and for the people, expects prevalence of genuine orderliness, positive propriety, dedicated discipline and sanguine sanctity by constant affirmance of constitutional morality which is the pillar stone of good governance. While dealing with the concept of democracy, the majority in Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1, stated that "democracy" as an essential feature of the Constitution is unassailable. The said principle was reiterated in T.N. Seshan, CEC of India v. Union of India (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 ....
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....to enervate and shatter free exercise of choice and selection. No candidate is entitled to destroy the sacredness of election by indulging in undue influence. The basic concept of "undue influence" relating to an election is voluntary interference or attempt to interfere with the free exercise of electoral right. The voluntary act also encompasses attempts to interfere with the free exercise of the electoral right. This Court, as noticed earlier, has opined that legitimate canvassing would not amount to undue influence; and that there is a distinction between "undue influence" and "proper influence". The former is totally unacceptable as it impinges upon the voter's right to choose and affects the free exercise of the right to vote. At this juncture, we are obliged to say that this Court in certain decisions, as has been noticed earlier, laid down what would constitute "undue 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 incorporat....
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....ji (1988) 1 SCC 277 and V.S. Achuthanandan V. P.J. Francis and Another (1999) 3 SCC 737. We have also culled out the principle that corrupt practice can take place prior to voting. The factum of non-disclosure of the requisite information as regards the criminal antecedents, as has been stated hereinabove is a stage prior to voting. 79. At this juncture, it will be appropriate to refer to certain instructions issued from time to time by the Election Commission of India. On 2.7.2012, the Election Commission of India has issued the following instructions: "To The Chief Electoral Officer of all States and UTs. Sub:- Affidavit filed by candidates along with their nomination papers-dissemination thereof. Sir/Madam, Please refer to the Commission's instructions regarding dissemination of information in the affidavits filed by the candidates along with the 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 ....
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....ed by the candidate shall also be uploaded on the website alongwith the affidavit concerned. Such uploading should also be done within 24 hours of filing of the same." 82. Recently on 3.3.2014, the Commission has issued a circular no. 3/ER/2013/SDR Vol.V to the Chief Electoral Officers of all States and Union Territories relating to affidavits filed by candidates and dissemination thereof. We think it appropriate to reproduce the same in toto as it has immense significance. "As per the existing instructions of the Commission the affidavits filed by the candidates with the nomination paper are uploaded on the website of the CEO and full hard copies of affidavits are displayed on the notice board of the Returning Officer for dissemination of information. In case the office of the ARO is at a place different from the office of the RO, then a copy each of the affidavits is also displayed on the notice board in ARO's office. If the offices of the both RO and ARO are outside the territorial limits of the constituency, copies of the affidavits are to be displayed at a prominent public place within the constituency. Further, if any one seeks copies of the affidavits from the RO, copi....
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....ot disclosed, it tantamounts to fraud, as has been held in S.P. Chengalvaraya Naidu (Dead) By LRs V. Jagannath (Dead) By LRs & Others (1994) 1 SCC 1. While filing the nomination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, are not given, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark. This attempt undeniably and undisputedly is undue influence and, therefore, amounts to corrupt practice. It is necessary to clarify here that if a candidate gives all the particulars and despite that he secures the votes that will be an informed, advised and free exercise of right by the electorate. That is why there is a distinction between a disqualification and the corrupt practice. In an election petition, the election petitioner is required to assert about the cases in which the successful candidate is involved as per the rules and how there has been non-disclosure in the affidavit. Once that is established, it would amount to corrupt practice. We repeat at the cost of repetition, it has to be determined in an election petition by the Election Tribunal. 84. Having held that, we are required to....
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....ll be delivered to the candidates along with the forms of nomination papers as part of the nomination papers." 85. We have also reproduced the information that is required to be given. Sections 259 and 260 of the 1994 Act makes the provisions contained under Section 123 of the 1951 Act applicable. Submission of Ms. V. Mohana, learned counsel for the appellant is that there was no challenge on the ground of corrupt practice. As we find the election was sought to be assailed on many a ground. The factum of suppression of the cases relating to embezzlement has been established. Under these circumstances, there is no need to advert to the authorities which are cited by the learned counsel for the appellant that it has no material particulars and there was no ground for corrupt practice. In fact, in a way, it is there. The submission of the learned counsel for the appellant that he has passed up to Class X and, therefore, was not aware whether he has to give all the details as he was under the impression that all the cases were one case or off-shoots of the main case. The aforesaid submission is noted to be rejected. Therefore, we are of the view that the High Court is justified in d....