Paragraph numbers below are the court’s original numbering, recovered from the source text.
52. Similar view has been expressed in \/.T. Khanzode and Ors. \I. Reserve Bank of India and Anr.41 , D.K. Trivedi & Sons \I. State of Gujarat42, State of J&K \I. Lakhwinder Kumar'3, and BSNL \I. Telecom Regulatory Authority of lndia44 • Thus, the first part of Section 123(2) is not restricted or controlled by tqe provisos.
53. From the aforesaid authorities, the following principles can be culled out:- (i) The words "undue influence" are not to be 41 (1982) 2 sec 1 42 (1986) Supp. sec 20 43 c2013) a sec 333 44 c2014) 3 sec 222 c 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) Tne 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) do not take away the effect of the principal or main provision. (viii) Freedom in the exercise of judgment which engulfs a voter's right, a free choice, in selecting the candidate whom he believes to be best fitted to represent the constituency, has to be given due weightage. (ix) There shoufd never be tyranny over the mind which KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] would put fetters and scuttle the free exercise of A an electorate. (x) The concept of undue influence applies at both the stages, namely, pre-voting and at the time of casting of vote. (xi) "Undue influence" is not to be equated with "proper influence" and, therefore, legitimate canvassing is permissible in a democratic set up. (xii) Free exercise of electoral right has a nexus with C direct or indirect interference or attempt to interfere.
54. The aforesaid principles are required to be appreciated regard being had to the progression of the election law, the contemporaneous situation, the prevalent D scenario and the statutory content. We are absolutely conscious, the right to contest an election is neither a fundamental right nor a common law right. Dealing with the constitutional validity of Sections 175(1) and 177(1) of the Haryana Panchayati Raj Act, 1994, the three-Judge Bench E in Javed \I. State of Haryana45 opined thus: "Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having F been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right – a right. originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. There is nothing wrong in the same statute which confers the right to contest an election also to provide 45 (2003) a sec 369 [2015) 4 S.C.R. for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an c elective statutory office. Reiterating the law laid down in N.P Ponnuswami v. Returning Officer, Namakkal Constituency46 and Jagan Nath v. Jaswant Singh47 this Court held in Jyoti Basu v. Debi Ghosa/48: "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 o 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 F 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 G for declaring election to be void. Section 100(1) which is 46 AIR 1952 SC 64 47 AIR 1954 SC 210 4B (1982) 1 sec 691 KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.) 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 any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, insofar as it concerns E a returned candidate, has been materially affected- (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, The High Court shall declare the election of the returned candidate to be void."
57. As is clear from the provision, if the corrupt practice is proven, the Election Tribunal or the High Court is bound B to declare the election of the returned candidate to be void. The said view has been laid down in M. Narayan Rao \I. G. Venkata Reddy & Others49 and Harminder Singh Jassi (supra). c
58. At this juncture, it is necessary to elucidate on one essential aspect. Section 100(1 )(d)(ii) stipulates that where the High Court is of the opinion that the result of the election has been materially affected by any corrupt practice, committed in the interest of the returned candidate o by an agent, other than his election agent, the High Court shall declare the election of the returned candidate to be void. This stands in contra distinction to Section 100(1 )(b) which provides that election of a returned candidate shall be declared to be void if corrupt practice has been E committed by a returned candidate or his election agent or by any other person with his consent or with the consent 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 F 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 G Samant N. Balkrishna and Anr. \I. George Fernandez and Others50 , wherein Hidayatullah, C.J., speaking for the 49 (1977) 1 sec n.1 H so (1969) 3 sec 23a KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] 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 C 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 D 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. 51 , 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) provides that the commission of any corrupt practice by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent by itself G is sufficient to declare the election to be void. On the other hand, the commission of any corrupt practice 51 (1996) 1 sec 169 (2015] 4 S.C.R. in the interests of the returned candidate by an agent other than his election agent (without the further requirement of the ingredient of consent of a returned candidate or his election agent) is a ground for declaring the election to be void only when it is further pleaded and proved that the result of the election insofar as it concerns a returned candidate has been materially affected."
61. The distinction between the two provisions, as has C been explained by this Court is of immense significance. If the corrupt practice, as envisaged under Section 100(1)(b) is established, the election has to be declared void. No other condition is attached to it. Keeping this in view, we are required to. advert to the fundamental issue D whether non-disclosure of criminal antecedents, as has been stipulated under Section 33A and the Rules framed under the 1951 Act, would tantamount to corrupt practice and if so, how is it to be proven. We have already referred to the facet of undue influence in some decisions of this E Court. Emphasis has been laid by Mr. Salve, learned amicus curiae, on influence on the mind of the voter that interferes with the free exercise of the electoral right and how such non-disclosure or suppression of facts can be a F calculated act to interfere with such right. The undue influence as has been mentioned under Section 123(2) uses the words 'direct or indirect'. The Court has drawn distinction between legitimate canvassing and compulsion on the electorate. Emphasis has been given to the ingenuity G of the human mind which 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 H follows: KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] "171C – Undue influence at elections (1) Whoever voluntarily interferes or attempts to inter- fere with the free exercise of any electoral right commits the offence of undue influence at an elec- tion. (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 C 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 in- terested will become or will be rende.red an object D 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 G 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 H c Chapter IX-A of the Indian Penal Code already contains provisions for punishment for the corrupt practices of bribery, undue influence and personation at elections. "Bribery", "undue influence" and "personation" as defined in the said Chapter do not differ materially from the descriptions of such practices contained in clause 118 of the Bill which have been reproduced from Part I of the First Schedule to the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, and from the electoral rules which have been in force since 1921. The said Chapter IX-A also contains provisions for punishment for false statements and for illegal payments in connection with an election and for failure to keep election accounts. It has, therefore, been considered necessary to include in this Bill any provision for the corrupt practices and other electoral offences already dealt with in the Indian Penal Code. Further, it would not be possible to omit those provisions from the Indian Penal Code and include them in this Bill, as they apply not only' in relation to an election in Parliament, or to the Legislature of a State, but also to every other kind of election, such as, election to Municipalities, District Boards and other local authorities. Accordingly, only provisions with regard to certain other electoral offences have been included in these clauses."
63. In Shiv Kripal Singh (supra), as has been stated earlier, the Court had referred to the objects and reasons attached to the Bill, which ultimately resulted in enactment of Chapter IX-A of the l.P.C.
64. In Charan Lal Sahu V. Giani Zail Singh and KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] . Anr.52, the Court after referring to Section 171 C opined A thus: "The gravamen of this section is that there must be interference or attempted interference with the "free exercise" of any electoral right. "Electoral right" is defined by Section 171-A(b) to mean the 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 …… " c
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 D 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 E 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 G 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 52 (1984) 1 sec 390 c 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 would also amount to voluntary interference with the free exercise of the electoral right and would be undue influence. What is contained in sub-s. (2) of S. 171-C is merely illustrative. It is difficult to lay down in general terms where mere canvassing ends and interference or attempt at interference with the free exercise of any electoral right begins. That is a matter to be determined in each case; but there can be no doubt that if what is done is merely canvassing it would not be undue influence. As sub- section (3) of s. 171-C shows, the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence."
66. Regard being had to the aforesaid position of law and the meaning given under Section 123(2) of the 1951 F Act to "undue influence", we may refer to Section 33-A of the 1951 Act. Section 33-A of the 1951 Act, which has been introduced w.e.f. 24.08.2002, requires a candidate to furnish the information as to whether he is accused of any offence punishable with imprisonment for two years or more in a G pending case in which charge has been framed by the court of competent jurisdiction. Sub-Section 2 of Section 33-A of the 1951 Act requires the candidate or his proposer, as the case maybe, at the time of delivery to the Returning Officer an affidavit sworn by the candidate in a prescribed H form verifying the information specified in sub-Section (1). KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] It need no special emphasis to state that giving a A declaration by way of an affidavit duly sworn by the candidate has its own signification.
67. This Court had issued certain directions in Association for Democratic Reforms (supra) and B People's Union for Civil Liberties (PUCL) (supra). Section 33-A which has been reproduced earlier is relatable to furnishing of an information in respect of ari offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the C 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 general- ity 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 sec- tion 33A; (aa) the duties of presiding officers and polling offic- ers at polling stations; . (aaa) the form of contribution report; (b) the checking of voters by reference to the elec- toral roll; (bb) the manner of allocation of equitable sharing of G time on the cable television network and other elec- tronic media; (c) the manner in which votes are to be given both [2015) 4 S.C.R. 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 sta- tion 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 elec- tions held in accordance with the system of propor- tional representation by means of the single transfer- able vote; (g) the scrutiny and counting of votes including cases in which a recount of the votes may be made before the declaration of the result of the election; (gg) the procedure as to counting of votes recorded by means of voting machines; (h) the safe custody of ballot boxes, voting machines, ballot papers and other election papers, the period for which such papers shall be preserved and the inspec- tion and production of such papers; KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] (hh) the material to be supplied by the Government A to the candidates of recognised political parties at any election to be held for the purposes of constituting the House of the People or the Legislative Assembly of a State;. (i) any other matter required to be prescribed by this Act."
68. Rule 4A has been inserted in Conduct of Election Rules, 1961 ('for short, 1961 Rules) w.e.f. 3.9.2002. Rule c 4A reads as follows: "4A. Form of affidavit to be filed at the time of delivering nomination paper – The candidate or his proposer, as the case may be, shall, at the time of D delivering to the returning officer the nomination paper under sub-section (1) of section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26." As per the aforesaid Rule, the affidavit is required to be filed in Form 26. For the present purpose, the relevant part is as follows:- rORM 26 (See rule 4A) Affidavit to be filed by the candidate alongwith G nomination paper before the returning officer for election to ……………………… (name of the House) from ………………………………… constituency (Name of the Constituency) X-X-X (5) I am /am not accused of any offence(s) punish- able with imprisonment for two years or more in a pending case(s) in which a charge (s) has/have been 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 Vllith complete details of concerned Police . Statiori/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 franed the charge(s) (e) Date(s) on which the charge(s) was/were framed · (f) Whether all or any of the proceedings(s) have boon 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:- KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] (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 C 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: r (a) The Details of cases, soction(s) of the coocerred Act(s) ard description ci tt"e cifaice(s) fcr Wiich , convicted (b) Nare of the Court, Case f\b. end date of crder(s): (c) Punishrrert imposed —- d) Wt'ether any ~peal was/has teen filed against the: conviction crder. If so, details ard tt"e presait status oftt"e appeal:
69. On a perusal of the aforesaid format, it is clear as [2015) 4 S.C.R. A crystal that the details of certain categories of offences in respect of which cognizance has been taken or charges have been framed must be given/furnished. This Rule is in consonance with Section 33-A of the 1951 Act. Section 33(1) envisages that information has to be given in B accordance with the Rules. This is in addition to the information to be provided as per Section 33(1) (i) and (ii). The affidavit that is required to be filed by the candidate stipulates mentioning of cases pending against the candidate in which charges have been framed by the Court C for offences punishable with imprisonment for two years or more and also the cases which are pending against him in which cognizance has been taken by the court other than the cases which have been mentioned in Clause 5(i) of Form 26. Apart from the aforesaid, Clause 6 of Form 26 deals with conviction.
70. The singular question is, if a candidate, while filing his nomination paper does not furnish the entire information what would be the resultant effect. In Resurgence India E (supra), the Court has held that if a nomination paper is filed with particulars left blank, the Returning Officer is entitled to reject the nomination paper. The Court has proceeded to state that candidate must take the minimum F effort to explicitly remark as 'Nil' or '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 G 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 H follows: KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] "While no exception can be taken to the insistence A 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 B 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 C 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 D 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 E 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 paragraph has been explained thus: "The aforesaid paragraph, no doubt, stresses on the importance of filing of affidavit, however, opines that the direction to reject the nomination paper for G furnishing wrong information or concealing material information and providing for a summary inquiry at the time of scrutiny of the nominations cannot be justified since in such matters the documentary proof may not H c be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. This Court was of the opinion that if sufficient time is provided, the candidate may be in a position to produce proof to contradict the objector's version. The object behind penning down the aforesaid reasoning is to accommodate genuine situation where the candidate is trapped by false allegations and is unable to rebut the allegation within a short time. Para 73 of the aforesaid judgment nowhere contemplates a situation where it bars the Returning Officer to reject the nomination paper on account of filing affidavit with particulars left blank. Therefore, we hereby clarify that the above said paragraph will not come in the way of the Returning Officer to reject the nomination paper if the said affidavit is filed with blank columns."
71. Both the paragraphs when properly understood relate to the stage of scrutiny of the nomination paper. In this context, a question may arise if a candidate fills up all E the particulars relating to his criminal antecedents and the nomination is not liable for rejection in law, what would be the impact. At the stage of scrutiny, needless to say, even if objections are raised, that possibly cannot be verified by F the Returning Officer. Therefore, we do not intend to say that if objections are raised, the nomination paper would be 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 G 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 H referred to the authorities in Association for Democratic KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] Reforms (supra) and People's Union for Civil Liberties A (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 49-0 of the Rules. In Association for Democratic Reforms (supra), it has been held thus: c "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, D 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 E 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 F antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should G cast vote in favour of a candidate who is involved in a criminal case. For maintaining purity of elections and a healthy democracy, voters are required. to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational .qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided – its result, if pending – whether charge is framed or cognizance is taken by the court. There is no necessity of suppressing the relevant facts from the voters." [Emphasis supplied] c
72. In People's Union for Civil Liberties (NOTA case), (supra), emphasis has been laid on free and fair elections and it has been opined that for democracy to survive, it is fundamental that the best available man should be chosen as the people's representative for proper o governance of the country and the same can be at best be achieved through persons of high moral and ethical values who win the elections on a positive vote. Needless to say, the observations were made in the backdrop of negative voting.
73. In Manoj Narula (supra) the court, while discussing about democracy and the abhorrent place the corruption has in a body polity, has observed that a democratic polity, as understood in its quintessential purity, is conceptually F abhorrent to corruption and, especially corruption at high places, and repulsive to the idea of criminalisation of politics as it corrodes the legitimacy of the collective ethos, frustrates the hopes and aspirations of the citizens and has the potentiality to obstruct, if not derail, the rule of law. G 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 KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] pillar stone of good governance. While dealing with the A concept of democracy, the majority in Indira Nehru Gandhi v. Raj Narain53, 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 lndia54 and Ku/dip Nayar v. Union of fndia55. It B 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. c
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 D 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 not fully disclosed the criminal cases pending against him, as required under the Act and the Rules and the affidavit that has been filed before the Returning Officer G 53 (1975) Supp sec 1 54 (1995) 4 sec 611 55 (2006) 1 sec 1 A is false and reflects total suppression, whether such a ground would be sustainable on the foundation of undue influence. We may give an example at this stage. A candidate filing his nomination paper while giving information swears an affidavit and produces before the B Returning Officer stating that he has been involved in a case under Section 354 IPC and does not say anything else though cognizance has been taken or charges have been framed for the offences under Prevention of Corruption Act, 1988 or offences pertaining to rape, murder, C dacoity, smuggling, land grabbing, local enactments like MCOCA, U.P. Goonda Act, embezzlement, attempt to murder or any other offence which may come within the compartment of serious or heinous offences or corruption or moral turpitude. It is apt to note here that when an FIR is filed a person filling a nomina~ion paper may not be aware of lodgement of the FIR but when cognizance is taken or charge is framed, he is definitely aware of the said situation. It is within his special knowledge. If the offences E are not disclosed in entirety, the electorate remain in total darkness about such information. It can be stated with certitude that this can definitely be called antecedents for the limited purpose, that is, disclosure of information to be chosen as a representative to an elected body.
75. The sanctity of the electoral process imperatively commands that each candidate owes and is under an obligation that a fair election is held. Undue influence should not be employed to enervate and shatter free G 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 H voluntary act also encompasses attempts to interfere with KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] the free exercise of the electoral right. This Court, as A 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 B 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) C 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 Deshmukh56 , the Court observed that: "Clean, efficient and benevolent administration are the essential features of good governance which in turn G depends upon persons of competency and good character". 56 (2001) 3 sec 594
78. From the aforesaid, it is luculent that free exercise of any electoral right is paramount. If there is any direct or indirect interference or attempt to interfere on the part of the candidate, it amounts to undue influence. Free exercise of the electoral right after the recent pronouncements of B this Court and the amendment of the provisions are to be perceived regard being had to the purity of election and probity in public life which have their hallowedness. A voter is entitled to have an informed choice. A voter who is not satisfied with any of the candidates, as has been held in C People's Union for Civil Liberties (NOTA case), can opt not to vote for any candidate. The requirement of a disclosure, especially the criminal antecedents, enables a voter to have an informed and instructed choice. If a voter is denied of the acquaintance to the information and deprived of the condition to be apprised of the entire gamut of criminal antecedents relating to heinous or serious offences or offence of corruption or moral turpitude, the exercise of electoral right would not be an advised one. E He will be exercising his franchisee with the misinformed mind. That apart, his fundamental right to know also gets nullified. The attempt has to be perceived as creating an impediment in the mind of a voter, who is expected to vote to make a free, informed and advised choice. The same F is sought to be scuttled at the very commencement. It is well settled in law that election covers the entire process from the issue of the notification till the declaration of the result. This position has been clearly settled in Hari Vishnu Karnath V. Ahmad lshaque and others 57 , Election G Commission of India Shivaji58 and V.S. Achuthanandan V. P.J. Francis and Anothet<>9 . We have 57 AIR 1955 SC 233 58 (1988) 1 sec 277 59 (1999) 3 sec 737 KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] also culled out the principle that corrupt practice can take A 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 s 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. c Sub:- Affidavit filed by candidates along with their nomination papers-dissemination thereof. o 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 within the limits of the constituency. Further, affidavits of all G 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 H c 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 for the electors to see and clearly mentioning in the Press release of the DEO place (s) at which copies of the affidavits have been displayed. The press release should also make it clear that the affidavits can also be viewed on the website, and the path to locate them on the website should also be mentioned. 4. Please bring these instructions to the notice of all DEOs, ROs and other authorities concerned for compliance in future elections. Yours faithfully, (K.F. WILFRED) PRINCIPAL SECRETARY" 80. In continuation, some further instructions were issued on 12.10.2012. The relevant paragraph is reproduced as follows: "Now the Commission has reviewed the above KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] instruction and has decided that the affidavit filed by A all candidates, whether set up by the recognized political parties or unrecognized political parties or independents shall be put up on the website soon after the candidates file same and within 24 hours in any event. Even if any candidate withdraws his B candidature, the affidavit already uploaded on the website shall not be removed." 81. At this juncture, it is also relevant to refer to the circular dated 12.6.2013 which deals with complaints/ C counter affidavits filed against the statements in the affidavits and dissemination thereof. It is condign to reproduce the relevant para: "From the year 2004 onwards, the affidavits of o candidates are being uploaded on the website of the CEO. However, the same is not done in respect of counter affidavits filed, if any. The Commission has now decided that henceforth, all counter affidavits {duly notarized) filed by any person against the E statements in the affidavit filed 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 G 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 H c 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, 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 dissemination of information, as mentioned in para I above, the Abstract Part-II of the affidavit (given in part B of Form 26) filed by the contesting candidates shall be displayed at specified additional public offices, such as (I) Collectorate, (20) Zila Parishad Office (3) SOM Office (4) Panchayat Samiti office (i.e. Block Office) (5) office of Municipal Body or bodies in the KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] constituency (6) Tahsilffaluka office and (7) Panchayat A Office. This shall be done within 5 days of the date of withdrawal of candidature. In the Collectorate and . Zila Parishad Office, abstracts of affidavits of all candidates in all constituencies in the District shall be displayed. Abstracts of one constituency should be displayed together and not in scattered manner. Similarly, if there are more than one constituency in a Sub-Division, all abstracts of all candidates in such constituencies shall be displayed in SDM's office. Kindly convey these directions to all DEOs, ROs, SDMs etc. for elections to Lok Sabha Legislative Assembly and Legislative Council constituencies. These instructions will not apply to elections to Council c of States and State Legislative Council by MLAs as only elected representatives are electors for these elections." 83. The purpose of referring to the instructions of the Election Commission is that the affidavit sworn by the E candidate has to be put in public domain so that the electorate can know. If they know the half truth, as submits Mr. Salve, it is more dangerous, for the electorate are denied of the information which is within the special knowledge of the candidate. When something within special knowledge is not disclosed, it tantamounts to fraud, as has been held in S.P. Chengalvaraya Naidu (Dead) By LRs \I. Jagannath (Dead) By,LRs & Others60 . While filing the nomination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, are not G given, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark. This attempt so (1994) 1 sec 1 A 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 B 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 C 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 D 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 election to a Ward Member of Village Panchayat under the Tamil Nadu Panchayats Act, 1994 shall, instead of filing an Affidavit, file before the Returning Officer a declaration in the same format annexed to KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] this order: 2. The said affidavit by each candidate shall be duly sworn before a Magistrate of the First Class or a Notary Public or a Commissioner of Oaths appointed by the High Court of the State or before an Officer B competent for swearing an affidavit. 3. Non-furnishing of the affidavit or declaration, as the case, may be, by any candidate shall be considered to be violation of this order and the nomination of the c candidate concerned shall be liable for rejection by the Returning Officer at the time of scrutiny of nomination for such non-furnishing of the affidaviU declaration, as the case may be. 4. The information so furnished by each candidate in the aforesaid affidavit or declaration as the case may be, shall be disseminated by the respective Returning Officers by displaying a copy of the affidavit on the notice board of his office and also by making the E copies thereof available to all other candidate on demand and to the representatives of the print and electronic media. 5. If any rival candidate furnished information to the F contrary, by means of a duly sworn affidavit, then such affidavit of the rival candidate shall also be disseminated along with the affidavit of the candidate concerned in the manner directed above. 6. All the Returning Officers shall ensure that the G copies of the affidavit/declaration, prescribed herein by the Tamil Nadu State Election Commission in the Annexure shall be delivered to the candidates along with the forms of nomination papers as part of the H [2015) 4 S.C.R. 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 B 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 C 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 D 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 E rejected. Therefore, we are of the view that the High Court is justified in declaring that the election as null and voi.d on the ground of corrupt practice. 86. In view of the above, we would like to sum up our F conclusions: (a) Disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption or moral turpitude at the time .of filing of nomination paper as mandated by law is a categorical imperative. (b} When there is non-disclosure of the offences pertaining to the areas mentioned in the preceding clause, it creates an impediment in the free exercise KRISHNAMOORTHY v. SIVAKUMAR & ORS. [DIPAK MISRA, J.] of electoral right. (c) Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference B or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate. (d) As the candidate has the special knowledge of the c pending cases where cognizance has been taken or charges have been framed and there is a non- disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal o under Section 100(1)(b) of the 1951 Act. (e) The question whether it materially affects the election or not will not arise in a case of this nature. 87. Before parting with the case, we must put on record our unreserved appreciation for the valuable assistance rendered by Mr. Harish N. Salve, learned senior counsel and Mr. Maninder Singh, learned Additional Solicitor General for Union of India. 88. Ex consequenti, the appeal, being sans substance, stands dismissed with costs, which is assessed at Rs.50,000/-. Kalpana K. Tripathy Appeal dismissed. G