Supreme Court of India
KRISHNAMOORTHYversusSIVAKUMAR & ORS.
- Citation
- 2015 INSC 960
- Decided
- 5 February 2015
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
Deliberate suppression of material criminal antecedents by a candidate is undue influence, a facet of corrupt practice, and justifies declaring the election void under Section 100(1)(b) of the Representation of People Act, 1951.
Summary
The appeal concerned the election of Krishnamoorthy as President of Thekampatti Panchayat, where he had filed a nomination affidavit disclosing only one pending criminal case while suppressing eight other embezzlement cases. The High Court had declared his election void on the ground of corrupt practice, holding that the non‑disclosure amounted to undue influence. The Supreme Court examined whether concealment of pending criminal antecedents falls within the concept of undue influence under Section 123(2) of the Representation of People Act, 1951 and whether such conduct justifies voiding the election under Section 100(1)(b). Relying on constitutional principles, prior judgments and the statutory scheme, the Court held that a voter’s fundamental right to know a candidate’s criminal background is essential for a free and fair election, and deliberate suppression of such information constitutes undue influence and a corrupt practice. Consequently, the election was rightly declared void. The appeal was dismissed with costs.
Issues considered
- The non‑disclosure of pending criminal cases by a candidate amounts to 'undue influence' under Section 123(2) of the Representation of People Act, 1951.
- Whether such 'undue influence' constitutes a corrupt practice that warrants declaring the election void under Section 100(1)(b) of the Act.
- Whether the High Court was correct in treating the affidavit with blank or incomplete particulars as a ground for nullifying the election.
- The scope of the term 'undue influence' vis‑à‑vis legitimate canvassing and proper influence.
Legislation cited
- Conduct of Election Rules, 1961s. 41(2), s. 41(3), s. 49-0, s. 4A
- General Clauses Act, 1897s. 3(3)
- Oaths Act, 1969s. 8
- Representation of People Act, 1951s. 100(1)(b), s. 123(2), s. 125A, s. 33A
- Tamil Nadu Panchayats Act, 1994s. 259, s. 260
Subjects
undue influencecorrupt practiceelection lawcandidate disclosurecriminal antecedentsright to knowTamil Nadu Panchayats ActRepresentation of People Actaffidavitelection petition
Judgment
(2015] 4 S.C.R. 987
KRISHNAMOORTHY A
V.
SIVAKUMAR & ORS.
(Civil Appeal No.14 78 of 2015)
B
FEBRUARY 05, 2015
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
Tamil Nadu Panchayats Act, 1994 - s.260 - 'Undue
influence' - Whether failure to disclose criminal cases C
pending against a candidate would come within the concept
of 'undue influence' and thereby corrupt practice - Plea of
candidate that he having disclosed the main crime number,
his failure to mention other ancillary and connected cases, ·
0
would not amount to undue influence - Held: A voter has
a fundamental right to know the antecedents of the
candidate contesting election as it is an essential
concomitant for a free and fair election - Disclosure of
crin:inal antecedents, especially pertaining to heinous E
crimes or crimes relating to corruption or moral turpitude
at the time of filing nomination paper is imperative -
Concealment or suppression thereof since deprives the
voters to make an informed or advised choice and hence
would amount to interference or attempt to interference with F
free exercise of right to vote - As the candidate has special
knowledge of the pending cases against him, non-
disclosure thereof would amount to undue influence which
is a facet of corrupt practice - Thus, the High Court was
justified in declaring the election null and void on the ground G
of corrupt practice - Representation of People Act. 1951 -
ss.33A, 100(1)(b), 123(2) and 171-C - Conduct of Election
Rules 1861 - rr.4A, 41(2), 41(3) and 49-0.
987 H
988 SUPREME COURT REPORTS [2015] 4 S.C.R.
A Election Laws:
'Disqualification' and 'Corrupt practice' - Distinction
between - Discussed.
'Undue influence' and 'proper influence' - Distinction
8
between.
Dismissing the appeal, the Court
HELD: 1. A voter has a fundamental right to know
C about the candidates contesting the elections as that
is essential and a necessary concomitant for a free and
fair election. It is the first step. The voter is entitled to
make a choice after coming to know the antecedents
of a candidate a requisite for making informed choice.
D The voter's fundamental right to know the antecedents
of a candidate is independent of statutory requirement
under the election law, for a voter is first a citizen of
this country and apart from statutory rights, he has the
fundamental right to know and be informed. Such a
E right to know is conferred by the Constitution. [para
27) [1022-D-F]
Union of India Vs. Association for Democratic Reforms,
2002(3) SCR 696 = 2002 (5) SCC 294; People's Union for
F Civil Liberties (PUCL) & Another V. Union of India CJnd
Another 2003 (2) SCR 1136 = 2003 (4) SCC 399;
Resurgence India V. Election Commission of India & Anr.
2013 (9) SCR 360 = 2014 (14) SCC 189; Shaligram
Shrivastava V. Naresh Singh Patel 2002 (5) Suppl. SCR
G 585 = 2003 (2) SCC 176; People's Union for Civil Liberties
and Another V. Union of India and Another 2013 (12) SCR
283 = 2013 (10) sec 1 - relied on.
Vineet Narain V. Union of India 1997 (6) Suppl. SCR
H 595 = 1998 (1) SCC 226, Kihoto Hollohan V. Zachil/hu 1992
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 989
=
(1) SCR 686 1992 (2) Suppl. SCC 651; Mohinder Singh A
Gill II. Chief Election Commissioner 1978 (2) SCR 272 =
1978 (1) SCC 405, Kanhiya Lal Omar II. R.K. Trivedi 1985
(3) Suppl. SCR 1 = 1985 (4) SCC 628, Common Cause
II. Union of India 1996 (3) SCR 1208 = 1996 (2) SCC 752;
Narasimha Rao II. State (CB//SPE) 1998 (2) SCR 870 = B
1998 (4) SCC 626; Lily Thomas II. Speaker of Lok Sabha
1993 (1) Suppl. SCR 791 = 1993 (4) SCC 234 - referred
to.
2. In_ a constitutional democracy, any kind of C
criminalisation of politics is an extremely lamentable
situation. It is an anathema to the sanctity of
democracy. The criminalisation creates a concavity in
the heart of democracy and has the potentiality to
paralyse, comatose and strangulate the purity of the D
system. [para 31] [1025-B-C]
Manoj Narula V. Union of India 2014 (9) SCC 1;
Subramanian Swamy II. CBI 2014 (8) SCC 682 - followed
E
S. Raghbir Singh Gill II. S. Gurcharan Singh Tohra
1980 SCR 1302 = 1980 Suppl. SCC 53, S.S. Bola II. B.D.
Sardana 1997 (2) Suppl. SCR 507 = 1997 (8) SCC 522,
State of U.P. II. Jai Bir Singh 2005 (1) Suppl. SCR 20=
2005 (5) SCC 1, Reliance Natural Resources Ltd., V. F
=
Reliance Industries Ltd. 2010 (5) SCR 704 2010 (7) SCC
1, Ram Jethmalani II. Union of India 2011 (8 ) SCR 725
= 2011 (8) SCC 1 and State of Maharahtra II. Saeed Sohail
Sheikh 2012 (11) SCR 916 = 2012 (13) SCC 192; Dinesh
Trivedi II. Union of India 1997 (3) SCR 93 = 1997 (4) SCC G
306, Anukul Chandra Pradhan II. Union of India and others
1997 (1) Suppl. SCR 641 = 1997 (6) SCC 1; Niranjan
Hemchandra Sashittal II. State of Maharashtra 2013 (4)
SCR 767 = 2013 (4) SCC 642 - relied on.
H
990 SUPREME COURT REPORTS (2015] 4 S.C.R.
A 3. From the provisions u/ss 259 and 260 of Tamil
Nadu Panchayats Act, 1994, it is clear that concept of
'undue influence' as is understood in the context of
Section 123(2) of the Representation of People Act,
1951 has been adopted as it is a deemed conception
B 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, files an
C affidavit with blank particulars would render the
affidavit nugatory. If a candidate fails to fill the blanks
even after the reminder by the Returning Officer, the
nomination paper is liable to be rejected. [para 39]
D [1033-G-H; 1034-A, s~o1
Resurgence India V Election Commission of India &
=
Anr. 2013 (9) SCR 360 2014 (14) SCC 189 - relied on.
4.1 The right to contest an election is neither a
E fundamental right nor a common law right. 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
F ground of 'undue influence' is a part of corrupt
practice. [para 54 and 55] [1053-D-E; 1054-E-F]
4.2 The first part of Section 123(2) is not restricted
or controlled by the provisos. The provisos to Section
G 123(2) of 1951 Act are, as has been postulated in the
provision itself, without prejudice to the generality of
the said clause. [para 51-52] [1050-C-D; 1051-F]
4.3 As is clear from s.100 of 1951 Act, if the
H corrupt practice is proven, the Election Tribunal or the
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 991
High Court is bound to declare the election of the A
returned candidate to be void. [para 57] [1056-B]
M. Narayan Rao V. G. Venkata Reddy & Others 1977
(1) SCR 490 = 1977 (1) sec 771 - relied on.
B
4.4 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 by an agent, other than his election agent, C
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 committed by a returned D
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 pruven on the foundation of Section
100(1)(b), the High Court is not to advert to the facet E
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).
If the corrupt practice, as envisaged under Section
100(1)(b) is established, the election has to be declared F
void. No other condition is attached to it. [para 58 and
61] [1056-C-F; 1058-C-D]
Mahadeo V Babu Udai Pratap Singh & Ors. 1966 SCR
564=1966 AIR 824; Baburao Patel & Ors. V Dr. Zakir G
Hussain & Ors. 1968 SCR 133 = 1968 AIR 904; Jeet
Mohinder Singh V Harminder Singh Jassi 1999 (4) Suppl.
SCR 33 = 1999 (9) SCC 386; Govind Singh V Harchand
Kaur 2010 (14) SCR 348 = 2011 (2) SCC 621; Mangani
H
992 SUPREME COURT REPORTS [2015] 4 S.C.R.
A Lal Manda/ V Bishnu Deo Bhandari 2012 (1) SCR 527 =
2012 (3) SCC 314; Shambhu Prasad Sharma V.
Charandas Mahant 2012 (6 ) SCR 356 = 2012 (11) SCC
390; S.K. Singh V. V. Giri 1971 (2) SCR 197 = (1970) 2
SCC 567; Bachan Singh V Prithvi Singh 1975 (3) SCR
B 439 = (1975) 1 SCC 368; Ziyauddin Burhanuddin Bukhari
v. Brijmohan Ramdass Mehra 1975 (0) Suppl. SCR 281 =
(1976) 2 SCC 17; Aad Lal v. Kanshi Ram (1980) 2 SCC
350; Om Prakash & Ors. V Union of India & Ors. (1970)
3 SCC 942; V. T Khanzode and Ors. V. Reserve Bank of
C India and Anr. 1982 (3) SCR 411 = 1982 (2) SCC 7; D.K.
Trivedi & Sons V. State of Gujarat 1986 SCR 479 = 1986
Suppl. SCC 20; State of J&K V. Lakhwinder Kumar 2013
(2) SCR 1070 = 2013 (6) SCC 333; BSNL V. Telecom
Regulatory Authority of India 2013 (12) SCR 999 = 2014
0
(3 ) SCC 222; Javed V. State of Haryana 2003 (1) Suppl.
SCR 947 = 2003 (8) SCC 369; Manohar Joshi V. Nitin
Bhaurao Patil and Anr. 1995 (6) Suppl. SCR 421= 1996
(1) SCC 169; Indira Nehru Gandhiv. Raj Narain 1976 SCR
E 347 =1975 Suppl. SCC 1, TN. Seshan, CEC of India v.
Union of India 1995 (2) Suppl. SCR 106 = 1995 (4) SCC
611 - relied on.
Samant N. Balkrishna and Anr. V. George Fernandez
F and Others 1969 (3) SCR 603 = 1969 (3) SCC 238; Ram
Dial v. Sant Lal 1959 AIR 855 = 1959 Suppl. SCR 748
R.B. Surendra Narayan Sinha V Amulyadhone Roy 1940
IC 30; Linge Gowda V Shivananjappa (1953) 6 Ele LR
288 (Ele. Tri Bangalore), Mast Ram V S. Iqbal Singh (1953)
G 6 Ele LR 288 (Ele. Tri Bangalore) - referred to.
5. 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
H should not be employed to enervate and shatter free
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 993
exercise of choice and selection. No candidate is A
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 B
encompasses attempts to interfere with the free
exercise of the electoral right. 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 c
impinges upon the voter's right to choose and affects
the free exercise of the right to vote. [para 75] [1074-
F-H; 1075-A-B]
People's Union for Civil Liberties (PUCL) & Another V D
Union of/ndia and Another 2003 (2) SCR 1136 = 2003 (4)
SCC 399; Union of India Vs. Association for Democratic
Reforms, 2002(3) SCR 696 = 2002 (5) SCC 294;
Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh
2001 (2) SCR 118 = 2001 (3) sec 594- relied on. E
6. 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. A voter is entitled to have an informed F
choice. A voter who is not satisfied with any of the
•
candidates, 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 G
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
H
994 SUPREME COURT REPORTS [2015] 4 S.C.R.
A of electoral right would not be an advised one. 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
B expected to vote to make a free, informed and advised
choice. The same is sought to be scuttled at the very
commencement. Election covers the entire process
from the issue of the notification till the declaration of
the result. [para 78] [1076-A-F]
c
Hari Vishnu Karnath V Ahmad lshaque and others
1955 AIR 233 = 1955 SCR 1104, Election Commission of
India V Shivaji 1988 (1) SCR 878 = 1988 (1) SCC 277;
VS. Achuthanandan V. P.J. Francis and Another 1999 (2)
D SCR 99 = 1999 (3) SCC 737 - relied on.
7. As per the Circular No. 3/ER/2013/SDR Vol.V
dated 3.3.2014 issued by the Election Commission to
the Chief Electoral Officers of all States and Union
E Territories relating to affidavits filed by candidates and
dissemination thereof, the affidavit sworn by the
candidate has to be put in public domain so that the
electorate can know. If they know the half truth, it is
more dangerous, for the electorate are denied of the
F information which is within the special knowledge of
the candidate. When something within special
knowledge is not disclosed, it tantamounts to fraud.
[para 82-83] [1079-F-G; 1080-E-F]
G S.P. Chengalvaraya Naidu (Dead) By LRs V.
Jagannath (Dead) By LRs & Others 1993 (3) Suppl. SCR
422 = 1994 (1) sec - relied on.
8. Disclosure of criminal antecedents of a
H candidate, especially, pertaining to heinous or serious
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 995
offence or offences relating to corruption or moral A
turpitude at the time of filing of nomination paper as
mandated by law is a categorical imperative. When
there is non-disclosure of the offences pertaining to
these areas, it creates an impediment in the free
exercise of electoral right. [para 85] [1084-F-H; 1086- B
A]
9. Concealment or suppression of this nature
deprives the voters to make an informed and advised
choice as a consequence of which it would come C
within the compartment of ·direct or indirect
interference or attempt to interfere with the free
exercise of the right to vote by the electorate, on the
part of the candidate. [para 85] [1085-A-B]
D
10. As the candidate has the special knowledge of
the 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 E
null and void by the Election Tribunal under Section
100(1 )(b) of the 1951 Act. (para 85] [1085-C-D]
11. It is necessary to clarify here that if a candidate
gives all the particulars and despite that he secures the F
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 G
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. This has to be determined in an election
H
996 SUPREME COURT REPORTS [2015] 4 S.C.R.
A petition by the Election Tribunal. [para 83] [1082-A-C]
12. In the present case, the appellant was involved
in 8 cases relating to embezzlement. The State Election
Commission had issued a Notification. The factum of
B suppression of the cases relating to embezzlement has
been established. The High Court was justified in
declaring the election as null and void on the ground
of corrupt practice. [para 84-85] [1082-D; 1084-C-E]
c Charan Lal Sahu V. Giani Zail Singh and Anr. 1984
(2) SCR 6 = 1984 (1) SCC390; Indira Nehru Gandhi v. Raj
Narain 1976 SCR 347 = 1975 Suppl. SCC 1, T.N. Seshan,
CEC of India v. Union of India 1995 (2) Suppl. SCR 106 =
1995 (4) SCC 611 and Ku/dip Nayarv. Union of India 2006
D (5) Suppl. SCR 1 = 2006 (7) SCC 1 - referred to.
Case Law Reference
2002(3) SCR 696 relied on para 8
E 2003 (2) SCR 1136 relied on para 8
1997 (6) Suppl. SCR 595 referred to para 12
1992 (1) SCR 686 referred to para 12
F 1978 (2) SCR 272 referred to para 12
1985 (3) Suppl. SCR 1 referred to para 12
1996 (3) SCR 1208 referred to para 12
G 1998 (2) SCR 870 referred to para 12
2013 (9) SCR 360 relied on para 20
2002 (5) Suppl. SCR 585 relied on para 20
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 997
2013 (12) SCR 283 relied on para 24 A
1993 (1) Suppl. SCR 791 referred to para 28
1980 SCR 1302 relied on para 30
1997 (2) Suppl. SCR 507 relied on para 30 B
2005 (1) Suppl. SCR 20 relied on para 30
2010 (5) SCR 704 relied on para 30
2011 (8 ) SCR 725 relied on para 30 c
2012 (11) SCR 916 relied on para 30
1997 (3) SCR 93 relied on para 30
D
1997 (1) Suppl. SCR 641 relied on para 30
2014 (9) sec 1 followed para 33
2013 (4) SCR 767 relied on para 34
E
2014 (8) sec 682 followed para 35
1966 SCR 564 relied on para 43
1968 SCR 133 relied on para 43
F
1999 (4) Suppl. SCR 33 relied on para 43
2010 (14) SCR 348 relied on para 43
2012 (1) SCR 527 relied on para 43
G
2012 (6) SCR 356 relied on para 43
1959 Suppl. SCR 748 relied on para 43
1940 IC 30 referred to para 46
H
998 SUPREME COURT REPORTS [2015] 4 S.C.R.
A (1953) 6 Ele LR 288 referred to para 46
1971 (2) SCR 197 relied on para 47
1975 (3) SCR 439 relied on para 48
B 1975 (0) Suppl. SCR 281 relied on para 49
(1980) 2 sec 350 relied on para 50
(1970) 3 sec 942 relied on para 51
c 1982 (3) SCR 411 relied on para 50
1986 SCR 479 relied on para 52
2013 (2) SCR 1070 relied on para 52
D
2013 (12) SCR 999 relied on para 52
2003 (1) Suppl. SCR 947 relied on para 54
1977 (1) SCR 490 relied on para 57
E
1969 (3) SCR 603 relied on para 59
1995 (6) Suppl. SCR 421 relied on para 59
1984 (2) SCR 6 referred to para 64
F
1976 SCR 347 relied on para 73
1995 (2) Suppl. SCR 106 relied on para 73
2006 (5) Suppl. SCR 1 relied on para 73
G
2001 (2) SCR 118 relied on para 77
1955 SCR 1104 relied on para 78
1988 (1) SCR 878 relied on para 78
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 999
1999 (2) SCR 99 relied on para 78 A
1993 (3) Suppl. SCR 422 relied on para 83
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1478 of 2015
B
From the Judgment and Order dated 15.06.2009 of the
High Court of Judicature at Madras in C.R.P. (NPD) No.
3076 of 2008.
Maninder Singh (A.C.), Harish N. Salve (A.C.}, C
Subramonium Prasad, V. Mohana, B. Balaji, R. Rakesh
Sharma, Meha Agarwal, R. Anand Padmanabhan, J.
Amritha Sarayoo, Pramod Dayal, R. Neduraman, P. Soma
Sundaram, P.V. Yogeswaran for the appearing parties.
D
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. In a respectable and elevated
constitutional democracy purity of election, probity in
governance, sanctity of individual dignity, sacrosanctity of E
rule of law, certainty. and sustenance of independence of
judiciary, efficiency and acceptability of bureaucracy,
credibility of institutions, integrity and respectability of those
who run the institutions and prevalence of mutual deference
among all the wings of the State are absolutely significant, F
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 G
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
H
1000 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B 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
C one, on certain occasions and some situations, to interdict
- 'The law', the mightiest sovereign in a civilised society.
2. The preclude, we are disposed to think, has become
a necessity, as, in the case at hand, we are called upon to
D decide, what constitutes "undue influence" in the context
of Section 260 of Tamil Nadu Panchayats Act, 1994 (for
short 'the 1994 Act') which has adopted the similar
expression as has been used under Section 123 (2) of the
Representation of People's Act, 1951 (for brevity 'the 1951
E Act') thereby making the delineation of great significance,
for our interpretation of the aforesaid words shall be
applicable to election law in all spheres.
3. The instant case is a case of non-disclosure of full
F particulars of criminal cases pending against a candidate,
at the time of filing of nomination and its eventual impact
when the election is challenged before the election tribunal.
As the factual score is exposited the appellant was elected
as the President of Thekampatti Panchayat, Mettupalayam
G Taluk, Coimbatore District in the State of Tamil Nadu in the
elections held for the said purpose on 13.10.2006. The
validity of the election was called in question on the sole
ground that he had filed a false declaration suppressing
the details of criminal cases pending trial against him and,
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1001
[DIPAK MISRA, J.]
therefore, his nomination deserved to be rejected by the A
Returning Officer before the District Court Coimbatore in
Election O.P. No. 296 of 2006. As the factual matrix would
unfurl that Tamil Nadu State Election Commission (TNSEC)
had issued a Notification bearing S.O. No. 43/2006ffNSEC/
EG dated 1.9.2006 which stipulated that every candidate B
desiring to contest an election to a local body, was required
to furnish full and complete information in regard to five
categories referred to in paragraph five of the preamble to
the Notification, at the time of filing his nomination paper.
One of the mandatory requirements of the disclosure was C
whether the candidate was accused in any pending case
prior to six months of filing of the nomination of any offence
punishable with imprisonment for two years or more and
in which, charges have been framed or cognizance taken
0
by a court of law. It was asserted in the petition that the
appellant, who was the President of a cooperative society,
on allegations of criminal breach of trust, falsification of
accounts, etc., was arrayed as an accused in complaint
case in Crime No. 10 of 2001. During investigation, the E
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 F
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 G
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
H
1002 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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 cases by way of a chart. It is as follows:
·- - ------·-
B
rs--:--!
No.
I
Oirre No.10/01/Sedion C. c. No. Carpai nant Court
01. L.Vs400477AIPC
--
3'2004 COWCID JI/I IV
-
Coirrbatore
02. L.Vs 120 (b) r/w 406 477 5'2004 " "
AIFC
c ·--- ---·----·· ·-----·--- - - ' - ·
03. L.Vs 408, 400 477 AIFC 5'2004 "
- -- "
--~
04. " 5'2004 " "
05. " 7/2004 " "
06. L.Vs 120 (b) r/w 408, 400 812004 " "
477AIFC
D 07. " S'2005 " "
i 08. " 1CV2004 " "
5, After asseverating certain other facts, it was pleaded
that the 1st respondent had deliberately suppressed material
facts which if declared would enable his nomination papers
E being rejected. That apart, emphasis was laid on the fact
that the elected candidate had not declared the particulars
regarding the criminal cases pending against him.
6. In this backdrop, the election of the first respondent
F was sought to be declared to be invalid with certain other
consequential reliefs. In the counter-statement filed by the
elected candidate, a stand was put forth that the election
petitioner though was present at the time of scrutiny of the
nomination papers, had failed to raise any objection and,
G in any case, he had mentioned all the necessary details in
the nomination papers perfectly. It was further set forth as
follows:
"All the averments stated in the 31d para of the petition
is false and hereby denied. The averment stated that
H
1st respondent had deliberately omitted to provide the
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1003
[DIPAK MISRA, J.]
details of charge sheets having been filed against him A
which have been on file in eight cases is false and
hereby denied. It is humbly submitted that this
respondent has clearly mentioned about the case
pending in Cr. No. 10/2001 pending before the JM No.
4 at page No. 2 in details of candidate. Therefore the B
above said averments are false, misleading and
unsustainable."
7. The Principal District Judge of Coimbatore, the
Election Tribunal, adverted to the allegations, the ocular and C
the documentary evidence that have been brought on
record and came to hold that nomination P!:IPers filed by
the appellant, the first respondent to the Election Petition,
deserved to be rejected and, therefore, he Gould not have
contested the election, and accordingly he declared the D
election as null and void and ordered for re-election of the
post of the President in question. The said order was
challenged in revision before the High Court.
8. In revision, the High Court referred to the decisions E
in Union of India Vs. Association for Democratic
Reforms, 1 People's Union for Civil Liberties (PUCL) &
Another \I. Union of India and Another"-, Notification
issued by the Election Commission of India and the
Notification of the State Election Commission, Sections 259 F
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 G
declaration, by the very fact that it is required to be in the
1 (2002) 5 sec 294
2 (2003) 4 sec 399 H
1004 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B full and complete information. Thereafter, the High Court
referred to the authority in Association for Democratic
Reforms (supra), incorporation of Sections 33A and 44A
in the 1951 Act, Rule 4A of the Conduct of Election Rules,
1961 and Form 26 to the said Rules, Section 125A of the
C 1951 Act, the definition of 'Affidavit' as per Section 3(3) of
the General Clauses Act, 1897, the conceptual meaning
of Oath, Seation 8 of The Oaths Act, 1969 and scanned
the anatomy of Sections 259 and 260 of the 1994 Act and
the principles that have been set out in various decisions
0
of this Court and opined that the non-disclosure of full and
complete information relating to his implication in criminal
cases amounted to an attempt to interfere with the free
exercise of electoral right which would fall within the
E meaning of 'undue influence' and consequently 'corrupt
practice' under Section 259(1)(b) read with Section 260(2)
of the 1994 Act. Being of this view, the High Court agreed
with the ultimate conclusion of the tribunal though for a
different reason.
F
9. We have heard Ms. V. Mahana, learned counsel for
the appellant, Mr. Subramonium Prasad, learned AAG for
the State Election Commission, Mr. R. Anand
Padmanabhan, learned counsel for the respondent No.1
G and Mr. R. Neduamaran, learned counsel for the
respondent no.2. Regard being had to the impact it would
have on the principle relating to corrupt practice in all
election matters as interpretation of the words 'undue
influence' due to non-disclosure of criminal antecedents
H leading to "corrupt practice" under the 1951, Act, we also
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1005
[DIPAK MISRA, J.]
sought assistance of Mr. Harish N. Salve, learned senior A
counsel and Mr. Maninder Singh, learned Additional
Solicitor General for Union of India.
10. First, we intend, as indicated earlier, to address the
issue whether non-disclosure of criminal antecedents would 8
tantamount to undue influence, which is a facet of corrupt
practice as per Section 123(2) of the 1951 Act. After our
advertence in that regard, we shall dwell upon the facts of
the case as Ms. V. Mahana, learned counsel for the
appellant has astutely highlighted certain aspects to C
demonstrate that there has been no suppression or non-
disclosure and, therefore, the election could not have been
declared null and void either by the Election Tribunal or by
the High Court. Postponing the discussions on the said
score, at this stage, we shall delve into the aspect of corrupt D
practice on the foundation of non-disclosure of criminal
antecedents.
11. The issue of disclosure, declaration and filing of
the affidavit in this regard has a history, albeit, a recent E
one. Therefore, one is bound to sit in a time-machine. In
Association for Democratic Reforms (supra), the Court
posed the following important question:-
"... ln a nation wedded to republican and democratic F
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 G
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?"
H
1006 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 12. To answer the said question, it referred to the
authorities in Vineet Narain \I. Union of lndia 3 , Kihoto
Hollohan \I. Zachillhu' 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
B 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
C superintendence, direction and control of the "conduct of
all elections" to Parliament and to the legislature of every
State vests in the Election Commission; and the phrase
"conduct of elections" is held to be of wide amplitude which
would include power to make all necessary provisions for
0
conducting free and fair elections."
13. After so holding, the Court posed a question
whether the Election Commission is empowered to issue
directions. Be it noted, such a direction was ordered by the
E High Court of Delhi and in that context the Court relied upon
Mohinder Singh Gill \I. Chief Election Commissioner6,
Kanhiya Lal Omar \I. R.K. Trivedi6, Common Cause \I.
Union of lndia7 and opined thus:
F "If right to telecast and right to view sport games and
the. right to impart such information is considered to
be part and parcel of Article 19(1 )(a), we fail to
----
3 (1998) 1 sec 225
G 4 1992 Supp (2) sec 651
5 (1978) 1 sec 405
6 (1985) 4 sec 628
H 7 (1996) 2 sec 752
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1007
[DIPAK MISRA, J.]
understand why the right of a citizen/voter - a little A
man - to know about the antecedents of his
candidate cannot be held to be a fundamental right
under Article 19(1 )(a). In our view, democracy cannot
survive without free and fair election, without free and
fairly informed voters. Votes cast by uninformed voters B
in favour of X or Y candidate would be meaningless.
As stated in the aforesaid passage, one-sided
information, disinformation, misinformation and non-
information, all equally create an uninformed citizenry
which makes democracy a farce. Therefore, ,casting C
of a vote by a misinformed and non-informed voter
or a voter having one-sided information only is boun.d
to affect the democracy seriously. Freedom of speech
and expression includes right to impart and receive
0
information which includes freedom to hold opinions.
Entertainment is implied in freedom of "speech and
expression" and there is no reason to hold that
freedom of speech and expression would not cover
. right to get material information with regard to a E
candidate who is contesting election for a post which
is of utmost importance in the democracy."
14. In this regard, a reference was made to a passage
from P. \/. Narasimha Rao \/. State (CB/ISPE)8, jurisdiction F
of the Election Commission and ultimately the Court issued
the following directions:
"The Election Commission is directed to call for
information on affidavit by issuing necessary order in
exercise of its power under Article 324 of the G
Constitution of India from each candidate seeking
election to Parliament or a State Legislature as a
a (1998) 4 sec 626 H
1008 SUPREME COURT. REPORTS [2015] 4 S.C.R.
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/
B 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
c 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.
D
(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
E overdues of any public financial institution or
government dues.
(5) The educational qualifications of the candidate."
F 15. After the said decision was rendered, The
Representation of the People (Amendment) Ordinance,
2002, 4 of 2002 was promulgated by the President of India
on 24.8.2002 and the validity of the same was called in
question under Article 32 of the Constitution of India. The
G three-Judge Bench in People's Union for Civil Liberties
(PUCL) (supra) posed the following questions:-
"Should we not have such a situation in selecting a
candidate contesting elections? In a vibrant
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1009
[DIPAK MISRA, J.]
democracy - is it not required that a little voter should A
know the biodata of his/her would-be rulers, law-
makers or destiny-makers of the nation?"
And thereafter,
B
"Is there any necessity of keeping in the dark the
voters that their candidate was involved in criminal
cases of murder, dacoity or rape or has acquired the
wealth by unjustified means? Maybe, that he is
acquitted because the investigating officer failed to c
unearth the truth or because the witnesses turned
hostile. In some cases, apprehending danger to their
life, witnesses fail to reveal what was seen by them."
And again
D
"Is there any necessity of permitting candidates or
their supporters to use unaccounted money during
elections? It assets are declared, would it no amount
to having some control on unaccounted elections
expenditure?" E
16. During the pendency of the judgment of the said
case, the 1951 Act was amended introducing Section 338.
The Court reproduced Section 33-A and 33-B, which are
as follows:- F
"33-A. Right to information.-(1) A candidate shall,
apart from any information which he is required to
furnish, under this Act or the rules made thereunder,
in his nomination paper delivered under sub-section G
(1) of Section 33, also furnish the information as to
whether-
(i) he is accused of any offence punishable with
imprisonment for two years or more in a pending case- H
1010 SUPREME COURT REPORTS [2015] 4 S.C.R.
A in which a charge has been framed by the court of
competent jurisdiction;
(ii) he has been convicted of an offence other than
any offence referred to in sub-section (1) or sub-
B section (2), or covered in sub-section (3), of Section
8 and sentenced to imprisonment for one year or
more.
(2) The candidate or his proposer, as the case may
c be, shall, at the time of delivering to the Returning
Officer the nomination paper under sub-section (1) of
Section 33, also deliver to him an affidavit sworn by
the candidate in a prescribed form verifying the
information specified in sub-section (1 ).
D
(3) The Returning Officer shall, as soon as may be
after the furnishing of information to him under sub-
section (1 ), display the aforesaid information by
affixing a copy of the affidavit, delivered under sub-
E 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
F
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
G 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
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1011
[DIPAK MISRA, J.]
case, yet we are really to see what has been stated with A
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 B
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 C
to ask the instrumentalities of the State to disobey or
disregard the decisions given by the court. A
declaration that an order made by a court of law is
void is normally a part of the judicial function. The
legislature cannot declare that decision rendered by o
the Court is not binding or is of no effect.
It is true that the legislature is entitled to change the
law with retrospective effect which forms the basis of
a judicial decision. This exercise of power is subject E
to constitutional provision, therefore, it cannot enact
a law which is violative of fundamental right.
(B) Section 33-B which provides that notwithstanding
anything contained in the judgment of any court or F
directions 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 the
Act or the rules made thereunder, is on the face of it G
beyond the legislative competence, as this Court has
held that the voter has a fundamental right under
Article 19( 1 )(a) to know the antecedents of a
candidate for various reasons recorded in the earlier
H
1012 SUPREME COURT REPORTS [2015] 4 S.C.R.
A judgment as well as in this judgment.
The Amended Act does not wholly cover the directions
issued by this Court. On the contrary, it provides that
a candidate would not be bound to furnish certain
B information as directed by this Court.
(C) The judgment rendered by this Court in Assn. for
Democratic Reforms has attained finality, therefore,
there is no question of interpreting constitutional
c provision which calls for reference under Article
145(3).
(D) The contention that as there is no specific
fundamental right conferred on a voter by any
statutory provision to know the antecedents of a
D
candidate, the directions given by this Court are
against the statutory provisions is, on the face of it,
without any substance. In an election petition
challenging the validity of an election of a particular
E candidate, the statutory provisions would govern
respective rights of the parties. However, voters'
fundamental right to know the antecedents of a
candidate is independent of statutory rights under the
election law. A voter is first citizen of this country and
F apart from statutory rights, he is having fundamental
rights conferred by the Constitution. Members of a
democratic society should be sufficiently informed so
that they may cast their votes intelligently in favour
of persons who are to govern them. Right to vote
G would be meaningless 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
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1013
[DIPAK MISRA, J.]
legislatures. A
(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 B
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 C
the fundamental rights mentioned in Chapter Ill 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 D
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 E
of the media and others to enlighten the voter. As a
principle, it was laid down by him that right to make a
choice by means of a ballot is a part of freedom of
expression. Some of the eventual conclusions recorded by
him that are pertinent for our present purpose, are:- F
"(1) Securing information on the basic details
concerning the candidates contesting for elections to
Parliament or the State Legislature promotes freedom
of expression and therefore the right to information G
forms an integral part of Article 19(1)(a). This right to
information is, however, qualitatively different from the
right to get information about public affairs or the right
to receive information through the press and electronic
H
1014 SUPREME COURT REPORTS [2015] 4 S.C.R.
A media, though, to a certain extent, there may be
overlapping.
xxx xxx xxx
(3) The directives given by this Court in Union of India
B
v. Assn. for Democratic Reforms were intended to
operate only till the law was made by the legislature
and in that sense "pro tempore" in nature. Once
legislation is made, the Court has to make an
c independent assessment in order to evaluate whether
the items of information statutorily ordained are
reasonably adequate to secure the right of information
available to the voter/citizen. In embarking on this
exercise, the points of disclosure indicated by this
D Court, even if they be tentative or ad hoc in nature,
should be given due weight and substantial departure
therefrom cannot be countenanced.
xxx xxx xxx
E 5) Section 33-B inserted by the Representation of the
People (Third Amendment) Act, 2002 does not pass
the test of constitutionality, firstly, for the reason that
it imposes a blanket ban on dissemination of
information other than that spelt out in the enactment
F
irrespective of the need of the hour and the future
exigencies and expedients and secondly, for the
reason that the ban operates despite the fact that the
disclosure of information now provided for is deficient
G and inadequate.
(6) The right to information provided for by Parliament
under Section 33-A in regard to the pending criminal
cases and past involvement in such cases is
reasonably adequate to safeguard the right to
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1015
(DIPAK MISRA, J.]
information vested in the voter/citizen. However, there A
is no good reason for excluding the pending cases in
which cognizance has been taken by the Court from
the ambit of disclosure."
19. Dharmadhikari, J. in his supplementing opinion, B
observed thus:
"The reports of the advisory commissions set up one
after the other by the Government to which a
reference has been made by Brother Shah, J., c
highlight the present political scenario where money
power and muscle power have substantially polluted
and perverted the democratic processes in India. To
control the ill-effects of money power and muscle
power the commissions recommend that election o
system should be overhauled and drastically changed
lest democracy would become a teasing illusion to
common citizens of this country. Not only a half-
hearted attempt in the direction of reform of the
election system is to be taken, as has been done by E
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 F
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 G
which is to be regulated by statutory law on the
election like the RP Act."
20. The purpose of referring to the aforesaid authorities
in extenso is to focus how this Court has given emphasis H
1016 SUPREME COURT REPORTS (2015] 4 S.C.R.
A on the rights of a voter to know about the antecedents of
a candidate, especially, the criminal antecedents, contesting
the election. With the efflux of time, the Court in subsequent
decisions has further elaborated the right to know in the
context of election, as holding a free and fair election
B stabilises the democratic process which leads to good
governance. In this regard, reference to a recent three-
Judge Bench decision in Resurgence India \I. Election
Commission of India &Anr. 9 is advantageously fruitful. A
writ petition was filed under Article 32 of the Constitution
C of India to issue specific directions to effectuate the
meaningful implementation of the judgments rendered by
this Court in Association for Democratic Reforms
(supra), People's Union for Civil Liberties (PUCL) (supra)
and also to direct the respondents therein to make it
0
compulsory for the Returning Officers to ensure that the
affidavits filed by the contestants are complete in all
respects and to reject the affidavits having blank particulars.
The Court referred to the background, relief sought and
E Section 33A, 36 and 125A of the 1951 Act. A reference
was also made to the authority in Sha/igram Shrivastava
\I. Naresh Singh Patel10 . Culling out the principle from the
earlier precedents, the three-Judge Bench opined:
"Thus, this Court held that a voter has the elementary
F
right to know full particulars of a candidate who is to
represent him in the Parliament and such right to get
information is universally recognized natural right
flowing from the concept of democracy and is an
G integral part of Article 19(1 )(a) of the Constitution. It
was further held that the voter's speech or expression
in case of election would include casting of votes, that
9AIR 2014 SC 344
H 10 (~003) 2 sec 176
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1017
[DIPAK MISRA, J.]
is to say, voter speaks out or expresses by casting A
vote. For this purpose, information about the
candidate to be selected is a must. Thus, in
unequivocal terms, it is recognized that the citizen's
right to know of the candidate who represents him in
the Parliament will constitute an integral part of Article B
19(1 )(a) of the Constitution of India and any act, which
is derogative of the fundamental rights is at the very
outset ultra vires".
The Court posed the question whether filing of C
affidavit stating that 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 D
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 E
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 F
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 G
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
gua·ranteed under Article 19(1 )(a) of the Constitution,
H
1018 SUPREME COURT REPORTS [2015] 4 S.C.R.
A viz., 'right to know' which is inclusive of freedom of
speech and expression as interpreted in Association
for Democratic Reforms (supra)."
22. The Court further held that filing of an affidavit
B with blank places will be directly hit by Section 125A(i) of
the 1951 Act. Ultimately, the Court held:-
"ln succinct, if the Election Commission accepts the
nomination papers in spite of blank particulars in the
C affidavits, it will directly violate the fundamental right
of the citizen to know the criminal antecedents, assets
and liabilities and educational qualification of the
candidate. Therefore, accepting affidavit with blank
particulars from the candidate will rescind the verdict
o in Association for Democratic Reforms (supra).
Further, the subsequent act of prosecuting the
candidate under Section 125A(i) will bear no
significance as far as the breach of fundamental right
of the citizen is concerned. For the aforesaid reasons,
E we are unable to accept the contention of the Union
of India."
23. The Court summarized its directions in the following
manner:
F
"(i) The voter has the elementary right to know full
particulars of a candidate who is to represent him in
the Parliament/Assemblies and such right to get in-
formation is universally recognized. Thus, it is held
G that right to know about the candidate is a natural right
flowing from the concept of democracy and is an in-
tegral part of Article 19(1 )(a) of the Constitution.
(ii) The ultimate purpose of filing of affidavit along with
the nomination paper is to effectuate the fundamen-
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1019
[DIPAK MISRA, J.]
tal right of the citizens under Article 19(1 )(a) of the A
Constitution of India. The citizens are supposed to
have the necessary information at the time of filing
of nomination paper and for that purpose, the Return.:
ing Officer can very well compel a candidate to fur-
nish the relevant information. B
(iii) Filing of affidavit with blank particulars will render
the affidavit nugatory.
(iv) It is the duty of the Returning Officer to check c
whether the information required is fully furnished at
the time of filing of affidavit with the nomination pa-
per since such information is very vital for giving ef-
fect to the 'right to know' of the citizens. If a candi-
date fails to fill the blanks even after the reminder by o
the Returning Officer, the nomination paper is fit to
be rejected. We do comprehend that the power of Re-
turning Officer to reject the nomination paper must be
exercised very sparingly but the bar should not be laid
so high that the justice itself is prejudiced. E
(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 nomi-
nation paper when affidavit is filed with blank particu- F
lars,
(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 particu- G
lars 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 H
1020 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B 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
C does not deserve to have locomotion. Democracy nurtures
and dearly welcomes transparency. Many a cobweb is
woven or endeavoured to be woven to keep at bay what
sometimes becomes troublesome. Therefore, Rules 41 (2)
and (3) and 49-0 of the Conduct of Election Rules, 1961
D (for short, 'the Rules') came into force, to give some space
to the candidates and deny the advantage to the voters.
At that juncture, a writ petition under Article 32 of the
Constitution of India was filed by the People's Union for
Civil Liberties (PUCL) and another, challenging the
E constitutional validity of the said Rules to the extent that
the said provisions violate the secrecy of voting which is
fundamental to free and fair elections and is required to
be maintained as per Section 128 of the 1951 Act and
F Rules 39, 49-M of the Rules. Relevant parts of Rule 41
and Rule 49-0 read as follows:
"41. Spoilt and returned ballot papers - (1 ) ...... .
(2) If an elector after obtaining a ballot paper decides
G not to use it, he shall return it to the Presiding Officer,
and the ballot paper so returned and the counterfoil
of such ballot paper shall be marked as 'Returned:
cancelled' by the Presiding Officer.
H (3) All ballot papers cancelled under sub-rule (1) or
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1021
[DIPAK MISRA, J.]
sub-rule (2) shall be kept in a separate packet. A
xxx xxx xxx
49-0. Elector deciding not to vote - If an elector, after
his electoral roll number has been duly entered in the
8
register of voters in Form 17-A and has put his
signature or thumb impression thereon as required
under sub-rule (1) of Rule 49-L decided not to record
his vote, a remark to this effect shall be made against
the said entry in Form 17-A by the Presiding Officer c
and 'the signature or thumb impression of the elector
shall be obtained against such remark."
25. Testing the validity of the aforesaid Rules, a three-
Judge Bench in People's Union for Civil Liberties and
0
Another \I. Union of India and Another11 after dwelling
upon many a facet opined thus:
"Democracy being the basic feature of our
constitutional set-up, there can be no two opinions
that free and fair elections would alone guarantee the E
growth of a healthy democracy in the country. The
"fair" denotes equal opportunity to all people.
Universal adult suffrage conferred on the citizens of
India by the Constitution has made it possible for F
these millions of individual voters to go to the polls
and thus participate in the governance 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. G
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
11(2013)10sec1 H
1022 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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."
s 26. Ultimately, the Court declared Rules 41 (2) and (3)
and Rule 49-0 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
C 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
o about the candidates contesting the elections as that is
essential and a necessary concomitant for a free and fair
election. In a way, it is the first step. The voter is entitled
to make a choice after coming to know the antecedents of
a candidate a. requisite for making informed choice. It has
E been held by Shah, J. in People's Union of Civil Liberties
(supra) that the voter's fundamental right to know the
antecedents of a candidate is independent of statutory
requirement under the election law, for a voter is first a
citizen of this country and apart from statutory rights, he
F has the fundamental right to know and be informed. Such
a right to know is conferred by the Constitution.
28. Speaking about the concept of voting, this Court
in Lily Thomas V. Speaker of Lok Sabha 12 , has ruled
G that:-
" .... .Voting is a formal expression of will or opinion by
the person entitled to exercise the right on the subject
H 12 (1993) 4 sec 234
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1023
[DIPAK MISRA, J.]
or issue in question [and that] 'right to vote means A
right to exercise the right in favour of or against the
motion or resolution. Such a right implies right to
remain neutral as well'."
29. Emphasising on the choice in People's Union for B
Civil Liberties (NOTA case), the Court has expressed
thus:-
"55. Democracy is all about choice. This choice can
be better expressed by giving the voters an C
opportunity to verbalise themselves unreservedly and
by imposing least restrictions on their ability to make
such a choice. By providing NOTA button in the
EVMs, it will accelerate the effective political
D
participation in the present state of democratic system
and the voters in fact will be empowered. We are of
the considered view that in bringing out this right to
cast negative vote at a time when electioneering is
in full swing, it will foster the purity of the electoral E
process and also fulfil one of its objective, namely,
wide participation of people.
56. Free and fair election is a basic structure of the
Constitution and necessarily includes within its ambit F
the right of an elector to cast his vote without fear of
reprisal, duress or coercion. Protection of elector's
identity and affording secrecy is therefore integral to
free and fair elections and an arbitrary distinction
between the voter who casts his vote and the voter G
who does not cast his vote is violative of Article 14.
Thus, secrecy is required to be maintained for both
categories of persons.
57. Giving right to a voter not to vote for any candidate H
1024 SUPREME COURT REPORTS [2015] 4 S.C.R.
A while protecting his right of secrecy is extremely
important in a democracy. Such an option 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
B
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
c 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
D 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
E 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
F requisite in the case at hand, we are required to dwell upon
the failure to disclose the criminal cases pending against
a candidate and its eventual impact; whether it would come
within the concept of undue influence and thereby corrupt
practice as per Section 123(2) of the 1951 Act. To
G appreciate the said facet, the sanctity of constitutional
democracy and how it is dented by the criminalisation of
politics are to be taken note of. The importance of
constitutional democracy has been highlighted from various
H angles by this Court in S. Raghbir Singh Gill V. S.
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1025
[DIPAK MISRA, J.]
Gurcharan Singh Tohra 13 , S.S. Bola \/. B.D. Sardana 14 , A
State of U.P. V. Jai Bir Singh 15 , Reliance Natural
Resources Ltd., V. Reliance Industries Ltd. 16 , Ram
Jethmalani \/. Union of lndia 17 and State of Maharahtra
\/. Saeed Sohail Sheikh 18 .
B
31. In a constitutional democracy, we are disposed to
think that any kind of criminalisation of oolitics is an
extremely lamentable situation. It is an anathema to the
sanctity of democracy. The criminalisation creates a
concavity in the heart of democracy and has the potentiality C
to paralyse, comatose and strangulate the purity of the
system. In Dinesh Trivedi \/. Union of lndia 19 , a three-
Judge Bench while dealing with the cause for the malaise
which seems to have stricken Indian democracy in
particular and Indian society in general, one of the primary D
reasons was identified as criminalisation of politics. The
Court referred to the report of Vohra Committee and
observed thus:
"... In the main report, these various reports have been E
analysed and it is noted that the growth and spread
of crime syndicates in Indian society has been
pervasive. It is further observed that these criminal
F
13 (1980) Supp sec 53
14 (1997) 8 sec 522
15 (2005) 5 sec 1
rn c2010) 7 sec 1 G
17 (2011) 8 sec 1
18 (2012) 13 sec 192
19 (1997) 4 sec 306
H
1026 SUPREME COURT REPORTS [2015] 4 S.C.R.
A elements have developed an extensive network of
contacts with bureaucrats, government functionaries
at lower levels, politicians, media personalities,
strategically located persons in the non-governmental
sector and members .of the judiciary; some of these
B criminal syndicates have international links,
sometimes with foreign intelligence agencies. The
Report recommended that an efficient nodal cell be
set up with powers to take stringent action against
crime syndicates, while ensuring that it would be
c immune from being exploited or influenced."
In the said case, the Court further observed:
"We may now turn our focus to the Report and the
o follow-up measures that need to be implemented. The
Report reveals several alarming and deeply disturbing
trends that are prevalent in our present society. For
some time now, it has been generally perceived that
the nexus between politicians, bureaucrats and
E 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
F 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
G and others20 , the Court was dealing with the provisions
made in the election law which excluded persons with
criminal background and the kind specified therein, from
H 20 (1997) 6 sec 1
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1027
[DIPAK MISRA, J.]
the elections as candidates and voters. In that context, the A
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 B
welcomed and upheld as subserving the
constitutional purpose. The elbow room available to
the legislature in classification depends on the
context and the object for enactment of the provision.
The existing conditions in which the law has to be C
applied cannot be ignored in adjudging its validity
because it is relatable to the object sought to be
achieved by the legislation. Criminalisation of politics
is the bane of society and negation of democracy. It 0
is subversive of free and fair elections which is a
basic feature of the Constitution. Thus, a provision
made in the election law to promote the object of free
and fair elections and facilitate maintenance of law
and order which are the essence of democracy must, E
therefore, be so viewed. More elbow room to the
legislature for classification has to be available to
achieve the professed object."
Be it stated, the Court did not ~ccept the challenge F
to the constitutional validity of sub-Section 5 of
Section 62 of the 1951 Act which was amended to
provide that no person shall vote at any election if
he is confined in prison, whether under a sentence
of imprisonment, or under lawful confinement, or G
otherwise or is in the lawful custody of the police. A
proviso was carved out to exclude a person
subjected to preventive detention under any law for
the time being in force. H
1028 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 33. Recently, in Manoj Naru/a II. Union of lndia 21 , the
Constitution Bench harping on the concept of systemic
corruption, has been constrained to state thus:
"12. It is worth saying that systemic corruption and
B sponsored criminalisation can corrode the
fundamental core of elective democracy and,
consequently, the constitutional governance. The
agonised concern expressed by this Court on being
moved by the conscious citizens, as is perceptible
c from the authorities referred to hereinabove, clearly
shows that a democratic republic polity hopes and
aspires to be governed by a government which is run
by the elected representatives who do not have any
involvement in serious criminal offences or offences
D relating to corruption, casteism, societal problems,
affecting the sovereignty of the nation and many other
offences. There are recommendations given by
different committees constituted by various
Governments for electoral reforms. Some of the
E reports that have been highlighted at the Bar are (1)
Goswami Committee on Electoral Reforms (1990), (ii)
Vohra Committee Report (1993), (iii) lndrajit Gupta
Committee on State Funding of Elections (1998), (iv)
Law Commission Report on Reforms of the Electoral
F
Laws (1999), (v) National Commission to Review the
Working of the Constitution (2001 ), (vi) Election
Commission of India - Proposed Electoral Reforms
(2004), (vii) the Second Administrative Reforms
G Commission (2008), (viii) Justice J.S. Verma
Committee Report on Amendments to Criminal Law
(2013), and (ix) Law Commission Report (2014).
H 21 (2014) g sec 1
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1029
[DIPAK MISRA, J.]
13. Vohra Committee Report and other reports have A
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. B
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 C
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
0
expanded list of offences under Section 8( 1) shall be
disqualified from the date of taking cognizance or
conviction, as the case may be. It further proposed
that disqualification in case of conviction shall
continue for a further period of six years from the date E
of release upon conviction and in case of acquittal,
the disqualification shall operate from the date of
taking cognizance till the date of acquiital."
34. Criminalisation of politics is absolutely F
unacceptable. Corruption in public life is indubitably
deprecable. The citizenry has been compelled to stand as
a silent, deaf and mute spectator to the corruption either
being helpless or being resigned to fate. Commenting on
corruption, the court in Niranjan Hemchandra Sashittal G
V. State of Maharashtra 22 , was constrained to say thus:
"It can be stated without any fear of contradiction that
22 (2013) 4 sec 642 H
1030 SUPREME COURT REPORTS [2015] 4 S.C.R.
A corruption is not to be judged by degree, for corruption
mothers disorder, destroys societal will to progress,
accelerates undeserved ambitions, kills the
conscience, jettisons the glory of the institutions,
paralyses the economic health of a country, corrodes
B the sense of civility and mars the marrows of
governance. It is worth noting that immoral acquisition
of wealth destroys the energy of the people believing
in honesty, and history records with agony how they
have suffered. The only redeeming fact is that
c collective sensibility respects such suffering as it is
in consonance with the constitutional morality."
35. The Constitution Bench in Subramanian Swamy
\I. CB/23 , while striking down Section 6-A of the Delhi
D Special Police Establishment Act, 1946, observed thus:
"Corruption is an enemy of the nation and tracking
down corrupt public servants and punishing such
persons is a necessary mandate of the PC Act, 1988.
E It is difficult to justify the classification which has been
made in Section 6-A because the goal of law in the
PC Act, 1988 is to meet corruption cases with a very
strong hand and all public servants are warned
through such a legislative measure that corrupt public
F servants have to face very serious consequences."
And thereafter:
"Corruption is an enemy of nation and tracking down
G corrupt public servant, howsoever high he may be,
and punishing such person is a necessary mandate
under the PC Act, 1988. The status or position of
public servant does not qualify such public servant
H 23 c2014) a sec 682
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1031
[DIPAK MISRA, J.]
from exemption from equal treatment. The decision- A
making power does not segregate corrupt officers into
two classes as they are common crimedoers and
have to be tracked down by the same process of
inquiry and investigation."
B
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 C
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 D
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:
E
"(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: F
Provided that-
(a) without prejudice to the generality of the provisions
of this clause any such person as is referred to therein G
who-
(i) threatens any candidate or any elector, or any per-
son in whom a candidate or an elector interest, with
injury of any kind including social ostracism and ex- H
1032 SUPREME COURT REPORTS [2015] 4 S.C.R.
A communication or expulsion from any caste or com-
munity; or
(ii) induces or attempt to induce a candidate or an
elector to believe that he, or any person in whom he
8 is interested, will become or will be rendered an ob-
ject of divine displeasure or spiritual censure,
shall be deemed to interfere with the free exercise of
the electoral right of such candidate or elector within
the meaning of this clause;
c
(b) a declaration of public policy, or a promise of
publication, 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
D of this clause."
37. Section 259 of the 1994 Act deals with grounds
for declaring elections to be void. Section 259(1) is as
follows:
E
"259. Grounds for declaring elections to be
void.- (1) Subject to the provisions of sub-section (2),
if the District Judge is of opinion-
(a) that on the date of his election a returned
F candidate was not qualified or was disqualified, to be
chosen as a member under this Act, or,
(b) that any corrupt practice has been committed by
a returned candidate or his agent or by any other
G person with the consent of a returned candidate or
his agent, or
(c) that any nomination paper has been improperly
rejected, or
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1033
[DIPAK MISRA, J.]
(d) that the result of the election insofar as it concerns A
a returned candidate has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests
of the returned candidate by a person other than 8
that candidate or his agent or a person acting with
the consent of such candidate or agent, or
(iii) by the improper acceptance or refusal of any vote
or reception of any vote which is void; or C
(iv) by the non-compliance with the provisions of this
Act or of any rules or orders made thereunder, the
Court shall declare the election of the returned can-
didate to be void." D
38. Section 260 deals with corrupt practices. Sub-
sections ( 1) and (2) of Section 260 read as follows:
"260. Corrupt practices - The following shall be
deemed to be corrupt practice for the purposes of this E
Act:-
(1) Bribery as defined in Clause (1) of Section 123 of
the Representation of People Act, 1951. (Central Act
XLlll of 1951) F
(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 G
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
H
1034 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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 blank particulars would render the affidavit
nugatory. As has been held in the said judgment if a
B 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
C columns and not to leave the particulars blank. It is because
the citizens have a fundamental right to know about the
candidate, for it is a natural right flowing from the concept
of democracy. Thus, if a candidate paves the path of
adventure to leave the column blank and does not rectify
0
after the reminder by the Returning Officer, his nomination
paper is fit to be rejected. But, once he fills up the column
with some particulars and deliberately does not fill up other
relevant particulars, especially, pertaining to the pendency
E of criminal cases against him where cognizance has been
taken has to be in a different sphere.
40. Mr. Harish Salve, learned senior counsel, who was
requested to assist the Court, would unequivocally submit
F that it would come within the arena of corrupt practice. The
propositions that have been presenteci by the learned
Amicus Curiae are as follows:
A. The notion of what constitutes the free exercise of
any electoral right cannot be static. The exercise
G of electoral rights in a democracy is central to the
very existence of a democracy. The notion of the
free exercise of any electoral right is thus not some-
thing that can be ossified - it must evolve with the
constitutional jurisprudence and be judged by con-
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1035
[DIPAK MISRA, J.]
temporary constitutional values. A
8. The disclosure by a candidate of his character an-
tecedents was premised by this Court on the right
of an elector to know - which right flows from the
right to the informed exercise of an electoral right. B
C. Section 123(2) of the 1951 Act necessarily implies
that any influence on the mind of the voter that in-
terferes with a free exercise of the electoral right is
a corrupt practice. Misleading voters as to charac- c
ter antecedents of a candidate in contemporary
times is a serious interference with the free exer-
cise of a voter's right.
D. In the context of disclosure of information, if the D
falsity or suppression of information relating to the
criminal antecedents of a candidate is serious
enough to mislead voters as to his character, it
would clearly influence a voter in favour of a can-
didate. This Court should take judicial notice of the E
problem of criminalization of politics - which led this
Court to ask Parliament to seriously consider ame-
liorative changes to the law.
E. Section 123 of the 1951 Act defines "undue influ- F
ence" in terms of interference with the free exer-
cise of an electoral right. This result, i.e., interfer-
ence with the free exercise of an electoral right, may
apply to a person or a body of persons. As clari-
fied in Ram Dial v. Sant Lal, (1959) 2 SCR 748, G
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 ten-
dency to bring about the result contemplated in the
clause. H
1036 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B 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
C in giving information. Half truth is worse than si-
lence; it has the effect potentiality to have a ca-
cophony that can usher in anarchy.
Learned Amicus Curiae has commended us to
o 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
E General, who was requested to assist us, has submitted
that to sustain the paradigms of constitutional governance,
it is obligatory on the part of the candidate to strictly state
about the criminal cases pending against him, especially,
in respect of the offences which are heinous, or involve
F moral turpitude or corruption. He would submit, with all
fairness at his command, that for democracy to thrive, the
'right to know' is paramount and if a maladroit attempt is
made by a candidate not to disclose the pending cases
against him pertaining to criminal offences, it would have
G an impact on the voters as they would not be in a position
to know about his antecedents and ultimately their choice
would be affected. Learned ASG would urge that as the
non-disclosure of the offence is by the candidate himself,
it would fall in the compartment of corrupt practice.
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1037
[DIPAK MISRA, J.]
42. Mr. Subramonium Prasad, learned AAG for the A
State of Tamil Nadu and learned counsel for private
respondents have supported the contentions raised by Mr.
Harish Salve and Mr. Maninder Singh.
43. Ms. V. Mahana, learned counsel for the appellant s
would submit that the High Court has fallen into error by
treating it as a corrupt practice. It is her submission that
as a matter of fact, there has been no non-disclosure
because the appellant had stated about the crime number,
and all other cases are ancillary to the same and, in a way, C
connected and, therefore, non-mentioning of the same
would not bring his case in the arena of non-disclosure.
That apart, learned counsel would contend that the
appellant has read upto Class X and he had thought as
the other cases were ancillary to the principal one, and D
basically offshoots, they need not be stated and, therefore,
in the absence of any intention, the concept of undue
influence cannot be attracted. Learned counsel would urge
that though there was assertion of the registration of cases
and cognizance being taken in respect of the offences, yet E
the allegation of corrupt practices having not mentioned,
the election could not have been set aside. To buttress her
submissions, she has commended us to the decisions in
Mahadeo \/. Babu Udai Pratap Singh & Ors. 24, Baburao F
Patel & Ors. V. Dr. Zakir Hussain & Ors. 25, Jeet
Mohinder Singh \/. Harminder Singh Jassi26, Govind
Singh V. Harchand Kaur2 7, Mangani Lal Manda/ \/.
G
24 AIR 1966 SC 824
25AIR 1968 SC 904
26 (1999) 9 sec 386
21 c2011) 2 sec 621 H
1038 SUPREME COURT REPORTS [2015] 4 S.C.R.
A Bishnu Deo Bhandari28, and Shambhu Prasad Sharma
\I. Charandas Mahant29 ,
44. At this stage, we think it condign to survey certain
authorities how undue influence has been viewed by this
B Court and the relevant context therein. In Ram Dial v. Sant
La/3° 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
C 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
o 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
E the doing of such acts as are calculated to interfere
with the free exercise of any electoral right. Decisions
of the English courts, based on the words of the
English statute, which are not strictly in pari materia
with the words of the Indian statute, cannot, therefore,
F be used as precedents in this country."
[Emphasis added]
After so stating, the Court considered the submission
G that a religious leader has as much the right to freedom of
28 (2012) 3 sec 314
29 (2012) 11 sec 390
H 30AIR 1959 SC 855
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1039
[DIPAK MISRA, J.]
speech as any other citizen and, that, therefore, exhortation A
in favour of a particular candidate should not have the result
of vitiating the election. Elaborating further, it has been held:
"......... the religious leader has a right to exercise his
influence in favour of any particular candidate by B
voting for him and by canvassing votes of others for
him. He has a right to express his opinion on the
individual merits of the candidates. Such a course of
conduct on his part, will only be a use of his great
influence amongst a particular section of the voters C
in the constituency; but it will amount to an abuse of
his great influence if the words he uses in a
document, or utters in his speeches, leave no choice
to the persons addressed by him, in the exercise of
their electoral rights. If the religious head had said that D
he preferred the appellant to the other candidate,
because, in his opinion, he was more worthy of the
confidence of the electors for certain reasons good,
bad or indifferent, and a"ddressed words to that effect
to persons who were amenable to his influence, he E
would be within his rights, and his influence, however
great, could not be said to have been misused. But
in the instant case, as it appears, according to the
findings of the High Court, in agreement with the F
Tribunal, that the religious leader practically left no
free choice to the Namdhari electors, not only by
issuing the hukam or farman, as contained in Exh. P-
1, quoted above, but also by his speeches, to the
effect that they must vote for the appellant, implying G
that disobedience of his mandate would carry divine
displeasure or spiritual censure, the case is clearly
brought within the purview of the second paragraph
of the proviso to Section 123(2) of the Act."
H
1040 SUPREME COURT REPORTS [2015] 4 S.C.R.
A In view of the aforesaid analysis, the Court
dismissed the appeal and affirmed the decision of the High
Court whereby it had given the stamp of approval to the
order of Election Tribunal setting aside the appellants
election.
B
45. In Baburao Patel (supra), the Court while dealing
with the challenge to the Presidential Election, addressed
to the issue pertaining to undue influence. The Court
observed: ·
c
"We may in 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-
D 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
E 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"."
F 46. The Court referred to the authority in R.B.
Surendra Narayan Sinha V. Amulyadhone Roy3 1 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
G influence and the answer was given in the negative. A
reference was made to Linge Gowda \I. Shivananjappa32 ,
wherein it has been held that a leader of a political party
3119401C30
H 32 (1953) 6 Ele LR 288 (Ele. Tri Bangalore)
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1041
[DIPAK MISRA, J.]
was entitled to declare the public the policy of the party A
and ask the electorate to vote for his party without
interfering with any electoral right and such declarations on
his part would not amount to undue influence under the
1951 Act. In Mast Ram \I. S. Iqbal Singh 33 , the legitimate
exercise of influence by a political party or an association B
should not be confused with undue influence. After referring
to various authorities, the Court opined thus:
"It will be seen from the above review of the cases
relating to undue influence that it has been C
consistently held in this country that it is open to
Ministers to canvass for candidates of their party
standing for election. Such canvassing does not
amount to undue influence but is proper use of the
Minister's right to ask the public to support candidates D
belonging to the Minister's party. It is only where a
Minister abuses his position as such and goes beyond
merely asking for support for candidates belonging to
his party that a question of undue influence may arise.
But so long as the Minister only asks the electors to E
vote for a particular candidate belonging to his party
and puts forward before the public the merits of his
candidate it cannot be said that by merely making
such request to the electorate the Minister exercises F
undue influence. The fact that the Minister's request
was addressed in the form of what is called a whip,
is also immaterial so long as it is clear that there is
no compulsion on the electorate to vote in the manner
indicated." G
47. In S.K. Singh \I. V.V. Giri34 , the majority while
33 (1955) 12 Ele LR 34 (Ele Tri Amritsar)
34 (1970) 2 sec 567 H
1042 SUPREME COURT REPORTS [2015] 4 S.C.R.
A interpreting Section 18 of the Presidential and Vice-
Presidential Elections Act, 1952 (for short, 'the 1952 Act')
in the context of Section 171-C l.P.C., expressed thus:
"..... In our opinion, if distribution of the pamphlet by
B post to electors or in the Central Hall is proved it
would constitute "undue influence" within Section 18
and it is not necessary for the petitioners to go further
and prove that statements contained in the pamphlet
were made the subject of a verbal appeal or
C persuasion by one member of the electoral college
to another and particularly to those in the Congress
fold."
After so stating, the Court drew distinction between
o Section 18 of the 1952 Act and Section 123 of the 1951
Act. It referred to Chapter IX A of the Indian Penal Code,
1860 which deals with offences relating to elections and
adverted to the issue of undue influence at elections as
enumerated under Section 171-C. The argument that was
E 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
F 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
G 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
H made up his mind to vote for his chosen candidate
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1043
[DIPAK MISRA, J.]
or to refrain from voting. It was further argued that A
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 B
that under influence can only mean some act by way
of threat or fear or some adverse consequence
administered at the time of casting the vote."
Repelling the said contention, ·the Court held thus: C
"We do not think that the Legislature, while framing
Chapter IX-A of the Code ever contemplated such a
dichotomy or intended to give such a narrow meaning
to the freedom of franchise essential in a D
representative system of Government. In our opinion
the argument mentioned above is fallacious. It
completely disregards the structure and the provisions
of Section 171-C. Section 171-C is enacted in three
parts. The first sub-section contains the definition of E
"undue influence". This is in wide terms and renders
a person voluntarily interfering or attempting to
interfere with the free exercise of any electoral right
guilty of committing undue influence. That this is very
wide is indicated by the opening sentence of sub- F
section (2). i.e. "without prejudice to the generality of
the provisions of sub-section (1 )". It is well settled that
when this expression is used anything contained in
the provisions following this expression is not intended
to cut down the generality of the meaning of the G
preceding provision. This was so held by the Privy
Council in King-Emperor v. Sibnath Banerj35 ."
35AIR 1945 PC 156 H
,
1044 SUPREME COURT REPORTS [2015) 4 S.C.R.
A After so stating, the Court proceeded to lay down
as follows:-
"It follows from this that we have to look at sub-section
(1) as it is without restricting its provisions by what is
B contained in sub-section (2). Sub-section (3) throws
a great deal of light on this question. It proceeds on
the assumption that a declaration of public policy or
a promise of public action or the mere exercise of a
legal right can interfere with an electoral right, and
c therefore it provides that if there is no intention to
interfere with the electoral right it shall not be deemed
to be interference within the meaning of this section.
At what stage would a declaration of public policy or
a promise of public action act and tend to interfere?
D Surely only at the stage when a voter is trying to make
up his mind as to which candidate he would support.
If a declaration of public policy or a promise of public
action appeals to him, his mind would decide in favour
of the candidate who is propounding the public policy
E or promising a public action. Having made up his mind
he would then go and vote and 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.
F
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
G 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
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1045
[DIPAK MISRA, J.]
the electors. This exercise of the right by a candidate A
or his supporters to canvass support does not
interfere or attemptto 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 B
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 C
because his mind has already been made up for him
by the hypnotiser.
It was put like this in a book on Elections:
D
"The freedom of election is two-fold; (1) freedom in
the exercise of judgment. Every voter should be free
to exercise his own judgment, in selecting the
candidate he believes to be best fitted to represent
the constituency; (2) Freedom to go and have the E
means of going to the poll to give his vote without
fear or intimidation." 36
We are supported in this view by the statement of
Objects and Reasons attached to the bill which F
ultimately resulted in the enactment of Chapter IX-A.
That statement explains in clear language that "undue
influence was intended to mean voluntary interference
or attempted interference with the right of any person
to stand or not to stand as or withdraw from being a G
candidate or to vote or refrain from voting, and that
the definition covers all threats of injury to person or
36 Law of Elections and Election Petitions - Nanak Chand - 1950 Edn., p. 263 H
1046 SUPREME COURT REPORTS [2015] 4 S.C.R.
A property and all illegal methods of persuasion, and
any interference with the liberty of the candidates or
the electors". "The Legislature has wisely refrained
from defining the forms interference may take. The
ingenuity of the human mind is unlimited and perfcxce
B the nature of interference must also be unlimited."
[Emphasis supplied]
48. In Bachan Singh \I. Prithvi Singh37 , there was a
c publication of posters bearing the caption "Pillars of Victory"
with photographs of the Prime Minister, Defense Minister
and Foreign Minister. It was contended before this Court
that the publicatiqn of the poster not only amounted to the
exercise of "undue influence" within the contemplation of
D Section 123(2) but also constituted an attempt to obtain or
procure assistance from the members of the armed forces
of the Union for furtherance of the prospects of returned
candidate's election within the purview of Section 123(7).
The Court, treating the contention as unsustainable held
E thus:
"Doubtless the definition of "undue influence" in sub-
section (2) of Section 123 is couched in very wide
terms, and on first flush seems to cover every
F conceivable act which directly or indirectly interferes
or attempts to interfere with the free exercise of
electoral right. In one sense even election propaganda
carried on vigorously, blaringly and systematically
through charisma! leaders or through various media
G 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
H 37 (1975) 1 sec 368
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1047
[DIPAK MISRA, J.]
and mould the independent volition of electors, having A
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 B
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 C
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
0
(2) of Section 123 does not bar or penalise legitimate
canvassing or appeals to reason and judgment of the
voters or other lawful means of persuading voters to
vote or not to vote for a candidate. Indeed, such
proper and peaceful persuasion is the motive force E
of our democratic process.
We are unable to appreciate how the publication of
this poster interfered or was calculated to interfere
with the free exercise of the electoral right of any F
person. There was nothing in it which amounted to a
threat of injury or undue inducement of the kind
inhibited by Section 123(2)."
49. In Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdass Mehra38, a three-Judge Bench speaking through G
Beg, J., about undue influence had to say this:
"Section 123(2), gives the "undue influence" which
38 (1976) 2 sec 11 H
1048 SUPREME COURT REPORTS [2015] 4 S.C.R.
A could be exercised by a candidate or his agent during
an election a much wider connotation than this
expression has under the Indian Contract Act. "Undue
influence", as an election offence under the English
law is explained as follows in Halsbury's Laws of
B England, Third Edn., Vol. 14, pp. 223-24(para 387):
"A person is guilty of undue influence, if he directly
or indirectly, by himself or by any other person on his
behalf, makes use of or threatens to make use of any
C force, violence or restraint, or inflicts, or threatens to
inflict, by himself or by any other person, any temporal
or spiritual injury, damage, harm or loss upon or
against any person in order to induce or compel that
person to vote or refrain from voting, or on account
D of that person having voted or refrained from voting.
A person is also guilty of undue influence if, by
abduction, duress or any fraudulent device or
contrivance, he impedes or prevents the free exercise
E of the franchise of an elector or proxy for an elector,
or thereby compels, induces or prevails upon an
elector or proxy for an elector either to vote or to
refrain from voting."
F It will be seen that the English law on the subject has
the same object as the relevant provisions of Section
123 of our Act. But, the provisions of Section 123(2),
(3) and (3-A) seem wider in scope and also contain
specific mention of what may be construed as "undue
G influence" viewed in the background of our political
history and the special conditions which have
prevailed in this country.
We have to determine the effect of statements proved
H to have been made by a candidate, or, on his behalf
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1049
[DIPAK MISRA, J.]
and with his consent, during his election, upon the A
minds and feelings of the ordinary average voters of
this country in every case of alleged corrupt practice
of undue influence by making statements. We will,
therefore, proceed to consider the particular facts of
the case before us. B
xxxxx xxxxx xxxxx
To return to the precise question before us now, we
may repeat that what is relevant in such a case is c
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 o
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 E
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."
F
50. In Aad Lal v. Kanshi Ram39, 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 G
ingredient of the corrupt practice of "undue influence"
under sub-section (2) of Section 123 of the Act, that
there should be any "direct or indirect interference or
39 (1980) 2 sec 350 H
1050 SUPREME COURT REPORTS [2015] 4 S . C.R.
A attempt to interfere" on the part of the candidate or
his agent, or of any other person with the consent of
the candidate or his agent, "with the free exerci1se of
any electoral right". There are two provisos to the sub-
section, but they are obviously not applicable to the
B controversy before us. It was therefore necessary, for
the purpose of establishing the corrupt practice~ of
"undue influencet", to prove that there was any direct
or indirect interfe:rence or attempt to interfere with the
exercise of any electoral right."
c
61. At this stage, it is useful to clarify that the provisos
to Section 123(2) are, as has been postulated in the
provision itself, wit1hout prejudice to the generality of the
said clause. The mc!aning of the said phraseology has been
D Interpreted in Shiv Kripal Singh (supra). In this context,
we may profitably quote a passage from Om Prakash &
Ors. \i~ Union of India & Ors. 40
"It is therefore contended relying on sub-section (2)
E that inasmuch as no fraud or false representation or
concealment of any material fact has been alleged
or proveol in this case, the Chief Settlement
Commissioner cannot exercise the revisionary power
under Section 24. This contention in our view has no
F validity. It is a well established proposition of law that
where a specific power is conferred without prejudice
to the generality of the general powers already
specified, the particular power is only illustrative and
does not in any way restrict the general power. The
G Federal Court had in Talpade's case indicated the
contrary but the Privy Council in King Emperor v.
Sibnath Banerjee Indian Appeals - Vol. 72 p. 241
H 40 (1970) 3 sec 942
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1051
[DIPAK MISRA, J.]
observed at page 258: A
''Their Lordships are unable to agree with the learned
Chief Justice of the Federal Court on his statement
of the relative positions of subsections (1) and (2) of
Section 2 of the Defence of India Act, and counsel B
for the respondents in the present appeal was unable
to support that statement, or to maintain that Rule 26
was invalid. In the opinion of Their Lordships, the
function of sub-section (2) is merely an illustrative one;
the rule-making power is conferred by sub-section (1) C
and 'the rules' which are referred to in the opening
sentence of sub-section (2) are the rules which are
authorised by, and made under, sub-section (1); the
provisions of sub-section (2) are not restrictive of sub-
section (1) as, indeed is expressly stated by the words D
'without prejudice to the generality of the powers
conferred by sub-section (1)'."
52. Similar view has been expressed in \/.T. Khanzode
and Ors. \I. Reserve Bank of India and Anr. 41 , D.K. E
Trivedi & Sons \I. State of Gujarat42 , State of J&K \I.
Lakhwinder Kumar'3, and BSNL \I. Telecom Regulatory
Authority of lndia 44 • Thus, the first part of Section 123(2)
is not restricted or controlled by tqe provisos.
F
53. From the aforesaid authorities, the following
principles can be culled out:-
(i) The words "undue influence" are not to be
G
41 (1982) 2 sec 1
42 (1986) Supp. sec 20
43 c2013) a sec 333
44 c2014) 3 sec 222 H
1052 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B 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
c 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.
D (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.
E (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.
F (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
G
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
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1053
[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. B
(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 Haryana 45 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. G
There is nothing wrong in the same statute which
confers the right to contest an election also to provide
45 (2003) a sec 369 H
1054 SUPREME COURT REPORTS [2015) 4 S.C.R.
A 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
elective statutory office.
B
Reiterating the law laid down in N.P Ponnuswami v.
Returning Officer, Namakkal Constituency46 and Jagan
Nath v. Jaswant Singh 47 this Court held in Jyoti Basu
v. Debi Ghosa/48 :
c
"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."
E
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
H 4B (1982) 1 sec 691
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1055
[DIPAK MISRA, J.)
relevant for the present purpose reads as under: A
"100. Grounds for declaring election to be void.-
(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion-
B
(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 C
(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 D
(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 F
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 G
(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, '
H
1056 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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 Others 50 , wherein Hidayatullah, C.J., speaking for the
49 (1977) 1 sec n.1
H so (1969) 3 sec 23a
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1057
[DIPAK MISRA, J.]
Court opined thus: A
"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 B
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."
E
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) F
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 H
1058 SUPREME COURT REPORTS (2015] 4 S.C.R.
A 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
B 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. 1059
[DIPAK MISRA, J.]
"171C - Undue influence at elections A
(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. B
(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).
E
(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." F
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
1060 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B
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
c 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
D 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
E
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
F 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."
G 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
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1061
[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 B
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) F
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 H
1062 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B 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
c 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
D
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
E 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. 1063
[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 D
(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- E
tion 33A;
(aa) the duties of presiding officers and polling offic-
ers at polling stations;
F
. (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
H
1064 SUPREME COURT REPORTS [2015) 4 S.C.R.
A 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
B 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
C 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
D 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-
E 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
F 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;
G
(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;
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1065
[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;.
B
(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." E
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:-
F
" 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)
H
1066 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B framed by the court(s) of competent jurisdiction.
If the deponent is accused of any such offence(s) he
shall furnish the following information:-
C (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 :-
D (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
E 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)
F
(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
G
(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:-
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1067
[DIPAK MISRA, J.]
A
(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 ·
B
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. D
If the deponent is convicted and punished as
aforesaid, he shall furnish the following information:
In the following case, I have been convicted and E
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
F
(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. G
If so, details ard tt"e presait status oftt"e appeal:
69. On a perusal of the aforesaid format, it is clear as
H
1068 SUPREME COURT REPORTS [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
0
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. 1069
[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."
F
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
1070 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B 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
c 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
D
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. 1071
[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 B
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 H
1072 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B 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.
E
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
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1073
[DIPAK MISRA, J.]
pillar stone of good governance. While dealing with the A
concept of democracy, the majority in Indira Nehru Gandhi
v. Raj Narain 53 , 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 lndia 54 and Ku/dip Nayar v. Union of fndia 55 . 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 E
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, F
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 H
1074 SUPREME COURT REPORTS [2015] 4 S.C.R.
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
0
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.
F
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. 1075
[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.
D
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 E
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".
F
77. In Patangrao Kadam v. Prithviraj Sayajirao
Yadav Deshmukh 56 , 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 H
1076 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
0
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 V. Shivaji 58 and V.S.
Achuthanandan V. P.J. Francis and Anothet<>9 . We have
57 AIR 1955 SC 233
58 (1988) 1 sec 277
H 59 (1999) 3 sec 737
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1077
[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 c
The Chief Electoral Officer of all
States and UTs.
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 E
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 F
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
1078 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B 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
c 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
D 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
E mentioned.
4. Please bring these instructions to the notice
of all DEOs, ROs and other authorities
concerned for compliance in future elections.
F
Yours faithfully,
(K.F. WILFRED)
PRINCIPAL SECRETARY"
G 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
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1079
[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."
F
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
1080 SUPREME COURT REPORTS [2015] 4 S.C.R.
A 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
B 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
c 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
D 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
E 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.
F 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
G 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
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1081
[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 B
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.
c
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
of States and State Legislative Council by MLAs as D
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 F
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 H
1082 SUPREME COURT REPORTS [2015] 4 S.C.R.
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:-
E
"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
F 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:-
G 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
H Officer a declaration in the same format annexed to
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1083
[DIPAK MISRA, J.]
this order: A
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.
D
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
1084 SUPREME COURT REPORTS [2015) 4 S.C.R.
A 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
G 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
H clause, it creates an impediment in the free exercise
KRISHNAMOORTHY v. SIVAKUMAR & ORS. 1085
[DIPAK MISRA, J.]
of electoral right. A
(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 E
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.
F
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
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "undue influence"Sign in to search