RESURGENCE INDIAversusELECTION COMMISSION OF INDIA & ANR.

                       [2013] 9 S.C.R. 360


A                      RESURGENCE INDIA
                                 v.
           ELECTION COMMISSION OF INDIA & ANR.
              (Writ Petition (Civil) No. 121 of 2008)
                      SEPTEMBER 13, 2013
B
      [P. SATHASIVAM, CJI, RANJANA PRAKASH DJ:SAI
                 AND RANJAN GOGOi, JJ.]

        Constitution of India, 1950:.
c
       Art. 19(1)(a) - Freedom of speech and expression - Right
  to know...: Voter's right to know about the candidate contesting
  the election - /Explained - Held: Citizen's right to know of the
  candidate who represents him in Parliament/State Assembly
  will constitute an integral part of Art.19(1)(a); and any act,
0
  which is derogative of the fundamental rights is ultra vires -
  Purpose of filing of affidavit along with the nomination paper
  is to effectuate the fundamental right of the citizen under
  Art.19(1)(a) - The citizens are entitled to have the necessary
E information at the time of filing of the nomination paper in
  order to make a choice of their voting.

        Representation of the People Act, 1951:

        s.33-A read with ss. 36 and 125-A - Right to information
F - Candidates contesting the election - Filing of nomination
  paper - Affidavit with particulars left blank - Furnishing of
  information as required under sub-s.(1) of s.33-A and as laid
  down in the judgments of Supreme Court in Association for
  Democratic Reforms and People's Union for Civil Liberties -
G Principles culled out and directions issued - Held: Every
  candidate is obligated to file an affidavit with relevant
  information with regard to his/her criminal antecedents, assets
  and liabilities and educational qualifications - Filing of
  affidavit with particulars left blank will render the affidavit
H                               360
  RESURGENCE INDIA v. ELECTION COMMISSION                   361
                 OF INDIA
nugatory - If a candidate fails to fill the blanks even after      A
reminder by Returning Officer, the nomination paper is fit to
be rejected -Power of Returning Officer to reject nomination
paper must be exercised very sparingly but the bar should
not be laid so high that justice itself is prejudiced - It is
clarified that Para 73 of the judgment in People's Union for       B
Civil Liberties will not come in the way of Returning Officer to
reject the nomination paper when affidavit is filed with
particulars left blank.

     s.36 read with s.33-A - Scrutiny of nomination - Duty of      C
Returning Officer - Explained - Furnishing of relevant
information - Held: Returning Officer can compel a candidate
to furnish information relevant on the date of scrutiny -
Election Commission already has a standard draft format for
reminding the candidates to file an affidavit as stipulated -
Another clause may be inserted in the format for reminding         D
the candidates to fill the blanks with relevant information
thereby conveying the message that no affidavit with
particulars left blank will be entertained.

     s.125 A(i) - Filing of false affidavit and filing of affidavit E
with particulars left blank - Held: Filing of affidavit with
particulars left blank will be directly hit by s.125A(i) -
However, as the nomination paper itself is rejected by
Returning Officer, there is no reason to penalize the candidate
again for the same act by prosecuting him/her - If the F
candidate who has filed an affidavit with false information as
well as the candidate who has filed an affidavit with particulars
left blank are treated at par, it will result in breach of
fundamental right guaranteed under Art. 19(1 )(a) of the
Constitution, viz., 'right to know', which is inclusive of freedom G
of speech and expression.

    During the Punjab Legislative Assembly Elections,
2007, the petitioner-organization noticed large scale
irregularities in most of the affidavits filed by the
candidates of different political parties as regards               H
    362       SUPREME COURT REPORTS                          [2013] 9 S.C.R.


A furnishing of information relating to candidate's
  conviction/acquittal/discharge in any criminal offence in
  the past, any criminal case pending against him,
  information regarding assets of the candidate as well as
  of his/her spouse and dependants etc. as was required
B consequent upon judgments of the Supreme Court in
  Association for Democratic Reforms1 and People's Union for
  Civil Liberties2 (PUCL). The petitioner, therefore, made a
  representation to the Election Commission of India
  regarding large number of non-disclosures in the
c affidavits filed by the contestants in the State and poor
  level of scrutiny by the Return.ing Officers. The Election
  Commission of India expressed its inability in rejecting
  the nomination papers solely due to furnishing of false/
  incomplete information in the affidavits, in view of the
  judgment in PUCL. The petitioner filed the instant writ
0
  petition for issuance of specific directions to effectuate
  meaningful implementation of the judgments in.
  Association for Democratic Reforms and PUCL, and also to
  direct the respondents to make it compulsory for the
E Returning Officers to ensure that the affidavits filed by the
  contestants are complete in all respects and to reject the
  affidavits having blanks.

          Disposing of the petition, the Court

F      HELD: 1.1. The Returning Officers derive the power
  to reject the nomination papers on the ground that the
  contents to be filled in the affidavits are essential to
  effectuate the intent of the provisions of the
  Representation of the People Act, 1951 and as a
G consequence, leaving the affidavit blank will in fact make
  it impossible for the Returning Officer to verify whether


    1.   Union of India v. Association for Democratic Refroms 2002 (3) SCR 696.
    2.   People's Union for Civil Uberlies (PUCL) and Another vs. Union of India &
H        Anr. 2003 (2) SCR 1136.
RESURGENCE INDIA v. ELECTION COMMISSION OF 363
                    INDIA
the candidate is qualified or disqualified which indeed will   A
frustrate the object behind filing the same. [Para 16] [376-
C-E]
   Shaligram Shrivastava vs. Naresh Singh Patel 2002 (5)
Suppl. SCR 585 = (2003) 2 sec 176 - relied on.                 B
     1.2. This Court, in Association for Democratic
Reforms, held that a voter has the elementary right to know
full particulars of a candidate who is to represent him in
Parliament and such right to get information is universally
recognized natural right flowing from the concept of C
democracy and is an integral part of Art.19(1)(a) of the
Constitution of India. It was further held that the voter's
speech or expression in case of election would include
casting of votes, as voter speaks out or expresses by
casting of vote. For this purpose, information about the D
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 Parliament/State
Assembly will constitute an integral part of Art.19(1)(a) of
the Constitution; and any act, which is derogative of the E
fundamental rights is at the very outset ultra vires. With
this background, s.33A was inserted in the Representation
of the People Act, 1951 with effect from 24.08.2002, the
purpose being to effectuate the right contemplated in
Association for Democratic Reforms. All the candidates F
were mandated to disclose the criminal antecedents u/
s.33A by filing an affidavit as prescribed along with the
nomination paper filed u/s.33(1) of the RP Act so that the
citizens must be aware of the criminal antecedents of the
candidate before they can exercise their freedom of choice G
by casting of votes as guaranteed under the Constitution
of India. As a result, every candidate is obligated to file an
affidavit with relevant information with regard to his/her
criminal antecedents, assets and liabilities and educational
qualifications. [Paras 17, 18 and 19] [376-E, 378-B-H;
379-A]                                                         H
    364     SUPREME COURT REPORTS


A       Union of India vs. Association for Democratic Reforms
    and Another 2002 (3) SCR 696 = (2002) 5 sec 294- relied
    on.
         1.3. Filing of ·affidavit stating that the information
    given in the affidavit is correct, but leaving the contents
8
    blank would not fulfill the objective behind filing the
    same. The ultimate purpose of filing of affidavit along with
    the nomination paper is to effectuate the fundamental
    right of the citizen under Art.19(1 )(a) of the Constitution.
    For that purpose, the Returning Officer can compel a
C   candidate to furnish information relevant on the date of
    scrutiny. The Election Commission already has a
    standard draft format for reminding the candidates to file
    an affidavit as stipulated. Another clause may be inserted ·
    in the format for reminding the candidates to fill the
D   blanks with the relevant information thereby conveying
    the message that no affidavit with particulars left blank
    will be entertained. If the Election Commission accepts
    the nomination papers in spite of particu!ars left blank in
    the affidavits, it will directly violate the fundamental right
E   of the citizen to know the criminal antecedents, assets
    and liabilities and educational qualification of the
    candidate, and will rescind the verdict in Association for
    Democratic Reforms. Para 73 of the in People's Union for
    Civil Liberties judgment nowhere contemplates a
F   situation where it bars the Returning Officer to reject the
    nomination paper on account of filing affidavit with
    particulars left blank. [l;'aras 20, 21, 23 and 26) [379-B-C,
    D-E; 380-H; 381-A, G-H]

G       People's Union for Civil Liberties (PUCL) and Another vs.
                                                =
    Union of India & Anr. 2003 (2) SCR 1136 (2003) 4 SCC
    399 - relied on.

      2.1. Section 125A of the RP Act lays down that the
  act of failure on the part of the candidate to furnish
H relevant information, as mandated by s.33A will result in
RESURGENCE INDIA v. ELECTION COMMISSION OF 365
                   INDIA
prosecution of the candidate. If the candidate who has            A
filed an affidavit with false information as well as the
candidate who has filed an affidavit with particulars left
blank are treated at par, it will result in breach of
fundamental right guaranteed under Art.19(1 )(a) of the
Constitution, viz., 'right to know', which is inclusive of        B
freedom of speech and expression as interpreted in
Association for Democratic Reforms. [para 24 and 25]
[381-C-D, E-F]
     2.2. The principles that emerge from the enunciation         C
of law in the judgments of this Court can be summarized
in the form of following directions:

    (i) The voter has the elementary right to know full
    particulars of a candidate who is to represent him in
    Parliament/Assemblies and such right to get                   D
    information is universally recognized. Thus, it is held
    that right to know about the candidate is a natural
    right flowing from the concept of democracy and is
    an integral part of Art.19(1)(a) of the Constitution.
                                                                  E
    (ii) The ultimate purpose of filing of affidavit along with
    the nomination paper is to effectuate the fundamental
    right of the citizens under Art.19(1 )(a) of the
    Constitution of India. The citizens are supposed to
    have the necessary information at the time of filing
                                                                  F
    of nomination paper and for that purpose, the
    Returning Officer can very well compel a candidate
    to furnish the relevant information.

    (iii) Filing of affidavit with particulars left blank will
    render the affidavit nugatory.                                G

    (iv) It is the duty of the Returning Officer to check
    whether the information required is fully furnished at
    the time of filing of affidavit with the nomination paper
    since such information is very vital for giving effect        H
    366      SUPREME COURT REPORTS                 [2013) 9 S.C.R.


A         to the 'right to know' of the citizens. 1.f a candidate
          fails to fill the blanks even after the reminder by the
          Returning Officer, the nomination paper is fit to be
          rejected. The power of Returning Officer to reject the
          nomination paper must be exercised very sparingly
B         but the bar should not be laid so high that the justice
          itself is prejudiced.

          (v) It is clarified that Para 73 of the judgment in
          People's Union for Civil Liberties case will not come
          in the way of the Returning Officer to reject the
c         nomination paper when affidavit is filed with
          particulars left blank.

          (vi) The candidate must take the minimum effort to
          explicitly remark as 'NIL' or 'Not Applicable' or 'Not
D         known' in the columns and not to leave the
          particulars blank.
          (vii) Filing of affidavit with particulars left blank will
          be directly hit by s.125A(i) of the RP Act. However;
          as the nomination paper itself is rejected by the
E
          Returning Officer, there is no reason to penalize the
          candidate again for the same act by prosecuting him/
          her. [Para 27) [382-B-H; 383-A-C]
                           Case Law Reference:
      2002 (3) SCR 696               relied on           Para 1
      2003 (2) SCR 1136              relied on           Para 1
      2002 (5) Suppl. SCR 585 relied on                  Para 14
G       CIVIL ORIGINAL JURISDICTION : Under Article 32 of the
    Constitution of India.

          Writ Petition (Civil) No. 121 of 2008.

     A. Mariarputham, Prashant Bhushan, Rohit K. Singh,
H Meenakshi Arora, A. Radhakrishna, Yusuf Khan, B. Krishna
 RESURGENCE INDIA v. ELECTION COMMISSION OF 367
                     INDIA
 Prasad, Ritu Bhardwaj. for the appearing parties.                   A

      The Judgment of the Court was delivered by

      P. SATHASIVAM, CJI. 1. This writ petition, under Article
 32 of the Constitution of India, has been filed to issue specific
 directions to effectuate meaningful implementation of the            8
 judgments rendered by this Court in Union of India vs.
 Association for Democratic Reforms and Another (2002) 5
 SCC 294 and People's Union for Civil Liberties (PUCL) and
 Another vs. Union of India & Anr. (2003) 4 SCC 399 and also
 to direct the respondents herein to make it compulsory for the       C
 Returning Officers to ensure that the affidavits filed by the
 contestants are complete in all respects and to reject the
 affidavits having blank particulars.

 Background:                                                          D
       2. In order to maintain purity of elections and to bring
  transparency in the process of election, this Court, in
  Association for Democratic Reforms (supra), directed the
  Election Commission of India-Respondent No. 1 herein to issue
· neC:essary orders, in exercise of its power under Article 324 of E
  the Constitution, to call for information on affidavit from each
  candidate seeking election to the Parliament or a State
  Legislature as a ·necessary part of his nomination paper·
  furnishing therein information relating to his conviction/acquittal/
  discharge in any criminal offence in the past, any case pending F
  against him of any offence punishable with imprisonment for 2
  years or more, information regarding assets (movable,
  immovable, bank balance etc.) of the candidate as well as of
  his/her spouse and that of dependants, liability, if any, and the
  educational qualification of the candidate.                          G

      3. Pursuant to the above order, the Election Commission,
 vide order dated 28.06.2002, issued certain directions to the
 candidates to furnish full and complete information in the form
 of an affidavit, duly sworn before a Magistrate of the First         H
    368     SUPREME COURT REPORTS                  [2013] 9 S.C.R.


A Class, with regard to the matters specified in Association for
  Democratic Reforms (supra). It was also directed that non-
  furnishing of the affidavit by any candidate or furnishing of any
  wrong or incomplete information or suppression of any material
  information will result in the rejection of the nomination paper,
B apart from inviting penal consequences under the Indian Penal.
  Code, 1860. It was further clarified that only such information
  shall be considered to be wrong or incomplete or suppression
  of material information which is found to be a defect of
  substantial character by the Returning Officer in the summary
c inquiry conducted by him at the time of scrutiny of nomination
  papers.

         4. In People's Union for Civil Liberties (PUCL) (supra),
   though this Court reaffirmed the aforementioned decision but
  ·-also held that the direction to reject the nomination papers for
D furnishing wrong information or concealing material information
   and verification of assets and liabilities by means of a summary
   inquiry at the time of scrutiny of the nominations cannot be
   justified.

E        5. Pursuant to the above, the Election Commission, vide
    order dated 27.03.2003, held its earlier order dated 28.06.2002
    non-enforceable with regard to verification of assets and
    liabilities by means of summary inquiry and rejection of
    nomination papers on the ground of furnishing wrong
F   information or suppression of material information.

       6. Again, the Election Commission of India, vide letter
  dated 02.06.2004 directed the Chief Electoral Officers of all the
  States and Union Territories that where any complaint regarding
  furnishing of false information by any candidate is submitted by
G anyone, supported by some documentary evidence, the
  Returning Officer concerned should initiate action to prosecute
  the candidate concerned by filing formal complaint before the
  appropriate authority.

H
RESURGENCE INDIA v. ELECTION COMMISSION OF369
        INDIA [P. SATHASIVAM, CJI.]
Brief facts:                                                       A

      7. In the above backdrop, the brief facts of the case in hand
are as under:- Resurgence India-the petitioner herein is a non-
governmental organization (NGO) registered under the
Societies Registration Act, 1860 and is working for social
                                                                    8
awakening, social empowerment, human rights and dignity.
During Punjab Legislative Assembly Elections, 2007, the
petitioner-organization undertook a massive exercise under the
banner "Punjab Election Watch' and affidavits pertaining to the
candidates of six major political parties in the State were C
analyzed in order to verify their completeness. During such
campaign, large scale irregularities were found in most of the
affidavits filed by the candidates.

     8. On 09.02.2007, the petitioner-organization made a
representation to the Election Commission of India regarding D
large number of non-disclosures in the affidavits filed by the
contestants in the State of Punjab and poor level of scrutiny by
the Returning Officers. Vide letter dated 20.02.2007, the
Election Commission of India expressed its inability in rejecting
the nomination papers of the candidates solely due to furnishing E
of false/incomplete information in the affidavits in view of the
judgment in People's Union for Civil Liberties (PUCL) (supra).

     9. Being aggrieved of the same, the petitioner-organization
has preferred this petition for the issuance of a writ of F
mandamus to make it compulsory for the Returning Officers
to ensure that the affidavits filed by the contestants should be
complete in all respects and to reject those nomination papers
which are accompanied by incomplete/blank affidavits. The
petitioner-organization also prayed for deterrent action against
the Returning Officers in case of acceptance of such incomplete G
affidavits in order to remove deficiencies in the format of the
prescri~ed affidavit.

      10. Heard Mr. Prashant Bhushan, learned counsel for the
petitioner-organization, Ms. Meenakshi Arora, learned counsel      H
    370     SUPREME COURT REPORTS                    [2013) 9 S.C.R.

A   for the Election Commission of lndia-RespondenfNo. 1 herein
    and Mr. A. Mariarputham, learned senior counsel for the Union
    of India.

    Prayer/Relief Sought for:

B   Stand of the Petitioner-Organization:

         11. The Petitioner-organization pleaded for issuance of
    appropriate writ/direction including the writ of mandamus
    directing the respondents herein to make it compulsory for the
c   Returning Officers to ensure that the affidavits filed by the
    candidates are complete in all respects and to reject those
    nomination papers, which are accompanied by blank affidavits.

    Stand of the Election Commission of India:

D   It is the stand of the Election Commission of India that the
    judgment in People's Union for Civil Liberties (PUCL) (supra)
    does not empower the Returning Officers to reject the
    nomination papers solely due to furnishing of false/incomplete/
    blank information in the affidavits signed by the candidates'. In
E   succinct, they put forth the argument that they do not have any
    latitude for rejecting the nomination papers in view of the above
    mentioned judgment. However, learned counsel for the Election
    Commission of India made an assertion that the Election
    Commission too is of the opinion that incomplete nomination
F   papers must be rejected. Hence, the Election Commission of
    India sought for clarification in that regard.

    Stand of the Union of India:

          The Union of India also put forth the similar contention as
G   raised by the Election Commission. Interestingly, the Union of
    India also raised a query as to how this Court will be justified
    in accepting the nomination paper with false information but
    rejecting the nomination paper for filing affidavit with particulars
    left blank and hence prayed that both the abovesaid situations
H   must be treated at par.
RESURGENCE INDIA v. ELECTION COMMISSION OF 371
         INDIA [P. SATHASIVAM, CJI.]
Discussion:                                                           A

      12. Both the petitioner-organisation and the respondent/
UOI sought divergent remedies against the same situation viz.,
wherein the affidavit filed by the candidate stating the
information given as correct but the particulars of the same are
                                                                     8
left blank. The petitioner-organisation is seeking for rejection
of nomination paper in such a situation whereas the Union of
India is pleading for treating it at par with filing false affidavit
and to prosecute the candidate under Section 125A of the
Representation of the People Act, 1951 (in short 'the RP Act'). C

     13. In order to appreciate the issue involved, it is desirable
to refer the relevant provisions of the RP Act. Sections 33A,
36 and 125A of the RP Act read as under:

     "33A. Right to information.-(1) A candidate shall, apart 0
     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 (1) of section 33, also
     furnish the information as to whether -

    (i) he is accused of any offence punishable with                  E
    imprisonment for two years or more in a pending case in
    which a charge has been framed by the court of competent
    jurisdiction;

     (ii) he has been convicted of an offence [other than any         F
     offence referred to in sub-section (1) or sub-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 be,
     shall, at the time of delivering to the returning officer the G
     nomination paper under sub-section (1) of section 33, also
     deliver to him an affidavit sworn by the candidate .in a
     prescribed form veryfying the information specified in sub-
     section (1 ).
                                                                      H
    372       SUPREME COURT REPORTS                     [2013] 9 S.C.R.


A         (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-section (2), at a conspicuous
          place at his office for the information of the electors relating
B         to a constituency for which the nomination paper is
          delivered.

          36. Scrutiny·of nomination.-(1) On the date fixed for
          the scrutiny of nominations under section 30, the
          candidates, their election agents, one proposer of each
c         candidate, and one other person duly authorized in writing
          by each candidate, but no other person, may attend at such
          time and place as the returning officer may appoint; and
          the returning officer shall give them all reasonable facilities
          for examining the nomination papers of all candidates
D         which have been delivered within the time and in the
          manner laid down in section 33.

          (2) The returning officer shall then examine the nomination
          papers and shall decide all objections which may be made
E         to any nomination and may, either on such objection or on
          his own motion, after such sum/llary inquiry, if any, as he
          thinks necessary, reject any nomination on any of the
          following grounds:-

          (a) that on the date fixed for the scrutiny of nominations the
F         candidate either is not qualified or is disqualified for being
          chosen to fill the seat under any of the following provisions
          that may be applicable, namely: Articles 84, 102, 173 and
          191,

G              Part II of this Act, and sections 4 and 14 of the
          Government of Union Territories Act, 1963 (20 of 1963);
          or

          (b) that there has been a failure to comply with any of the
          provisions of section 33 or section 34 ; or
H
RESURGENCE INDIA v. ELECTION COMMISSION                   373
      OF INDIA [P. SATHASIVAM, CJI.]
  (c) that the signature of the candidate or the proposer on      A
  the nomination paper is not genuine.

  (3) Nothing contained in clause (b) or clause (c) of sub-
  section (2) shall be deemed to authorize the rejection of
  the nomination of any candidate on the ground of any
                                                                  8
  irregularity in respect of a nomination paper, if the
  candidate has been duly nominated by means of another
  nomination paper in respect of which no irregularity has
  been committed.

  (4) The returning officer shall not reject any nomination C
  paper on the ground of any defect which is not of a.
  substantial character.

  (5) The returning officer shall hold the scrutiny on the date
  appointed in this behalf under clause (b) of section 30 and     0
  shall not allow any adjournment of the proceedings except
  when such proceedings are interrupted or obstructed by
  riot or open violence or by causes beyond his control:

  Provided that in case an objection is raised by the
  returning officer or is made by any other person the            E
  candidate concerned may be allowed time to rebut it not
  later than the next day but one following the date fixed for
  scrutiny, and the returning officer shall record his decision
  on the date to which the proceedings have been
  adjourned. ·                                              ·     F

  (6) The returning officer shall endorse on each nomination
  paper his decision accepting or rejecting the same and,
  if the nomination paper is rejected, shall record in writing
  a brief statement, of his reasons for such rejection.
                                                                  G
  (7) For the purposes of this section, a certified copy of an
  entry in the electoral roll for the time being in force of a
  constituency shall be conclusive evidence of the fact that
  the person referred to in that entry is an elector for that
  constituency, unless it is proved that he is subject to a       H
    374      SUPREME COURT REPORTS                    [2013] 9 S.C.R.


A         disqualification mentioned in section 16 of th.e
          Representation of the People Act, 1950 (43 of 1950).

          (8) Immediately after all the nomination papers have been
          scrutinized and decisions accepting or rejecting the same
          have been recorded, the returning officer shall prepare a
B
          list of validly nominated candidates, that is to say,
          candidates whose nominations have been found valid, and
          affix it to his notice board.

          125A. Penalty for filing false affidavit, etc.-A
c         candidate who himself or through his proposer, with intent
          to be elected in an election,-

          (i) fails to furnish information relating to sub-section (1) of
          section 33A; or
D         (ii) gives false information which he knows or has reason
          to believe to be false; or

          (iii) conceals any information, in his nomination paper
          delivered under sub-section (1) of section 33 or in his
E         affidavit which is required to be delivered under sub-
          section (2) of section 33A, as the case may be, shall,
          notwithstanding anything contained in any other law for the
          time being in force, be punishable with imprisonment for
          a term which may extend to six months, or with fine, or with
F         both."

        14. In view of the above, the power to reject the nomination
  paper by the Returning Officer on the instance of candidate
  filing the affidavit with particulars left blank can be derived from
G the reasoning of a three-Judge Bench of this Court in Shaligram
  Shrivastava vs. Naresh Singh Patel (2003) 2 SCC 176. In the
  aforesaid case, the nomination paper of a candidate got
  rejected at the time of scrutiny under Section 36(2) of the RP
  Act on the ground that he had not filled up the proforma
  prescribed by the Election Commission wherein the candidate
H was required to state whether he had been convicted or not for
RESURGENCE INDIA v. ELECTION COMMISSION OF 375
        INDIA [P. SATHASIVAM, CJI.]
any offence mentioned in Section 8 of the RP Act. In actual,           A
the candidate therein had filed an affidavit stating that the
information given in the proforma was correct but the proforma
itself was left blank. The candidate therein coincidentally raised
somewhat similar contention as pleaded by the Union of India
in the present case. The candidate pleaded that his nomination         B
paper could not be rejected on the ground that he had not filled
up the proforma prescribed since no such proforma was
statutorily provided under the provisions of the Act or under the
rules framed thereunder. It was contended that the Commission
could not legislate to prescribe a proforma; at best it can only       c
be an executive instruction of the Election Commission
whereas the petitioner had filled the proforma prescribed under
the Rules, which did not suffer from any defect.

      15. Although, the grounds of contention may not be exactly
similar to the case on hand but the reasoning rendered in that         D
verdict will come in aid for arriving at a decision in the given
case. In order to arrive at a conclusion in that case, this Court
traversed through the objective behind filing the proforma. The
proforma mandated in that case was required to be filed as to
the necessary an.d relevant information with regard to the             E
candidate in the light of Section 8 of the RP Act. This Court
further held that at the time of scrutiny, the Returning Officer is
entitled to satisfy himself whether the candidate is qualified and
not disqualified, hence, the Returning Officer was authorized to
seek such information to be furnished at the time or before            F
scrutiny. It was further held that if the candidate fails to furnish
such information and also absents himself at the time of the
scrutiny of the nomination papers, then he is obviously avoiding
a statutory inquiry being conducted by the Returning Officer
under Section 36(2) of the RP Act relating to his being not            G
qualified or disqualified in the light of Section 8 of the RP Act.
It is bound to result in defect of a substantial character in the
nomination. This Court further held as under:-

     "17. In the case in hand the candidate had failed to furnish
                                                                       H
    376       SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A         such information as sought on the pro forma given to him
          and had also failed to be present personally or through his
          representative at the time of scrutiny. The statutoryl duty/
          power of Returning Officer for holding proper scrutiny of
          nomination paper was rendered nugatory. No scrutiny of
B         the nomination paper could be made under Section 36(2)
          of the Act in the light of Section 8 of the Act. It certainly
          rendered the nomination paper suffering from defect of
          substantial character and the Returning Officer was within
          his rights in rejecting the same."
c       16. It is clear that the Returning Officers derive the power
  to reject the nomination papers on the ground that the contents
  to be filled in the affidavits are essential to effectuate the intent
  of the provisions of the RP Act and as a consequence, leaving
  the affidavit blank will in fact make it impossible for the
D Returning Officer to verify whether the candidate is qualified or
  disqualified which indeed will frustrate the object behind filing
  the same. In concise, this Court in Shaligram (supra) evaluated
  the purpose behind filing .the proforma for advancing latitude
  to the Returning Officers to reject the nomination papers.
E
        17. In the light of the above reasoning, now let us assess
  the facts of the given case. In Association for Democratic
  Reforms (supra), this Court arrived at a decision that the
  members of a democratic society should be sufficiently
F informed so that they may influence intelligently the decisions
  which may affect themselves and it would include their decision
  of casting votes in favour of a particular candidate. Thi$ Court
  further held that if there was a disclosure by a candidate with
  regard to his criminal antecedents, assets and liabilities and
G educational qualification, then it would strengthen the voters in
  taking appropriate decision of casting their votes. This Court
  further stated as under:-

          "38. If right to telecast and right to view to sport games and
          right to impart such information is considered to be part
H         and parcel of Article 19(1)(a), we fail to understand why
RESURGENCE INDIA v. ELECTION COMMISSION OF 377
        INDIA [P. SATHASIVAM, CJI.]
   the right of a citizen/voter - a little man - to know about the   A
   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 in favour of X or Y candidate would be          8
   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 of
   vote by a misinformed and non-informed voter or a voter           C
   having one-sided information only is bound to affect the
   democracy seriously. Freedom of spe~ch and expression
  ,includes right to impart and receive 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              0
   would not cover right to get material information with regard
   to a candidate who is contesting election for a post which
  .is of utmost importance in the democracy.

   46 ... .4. To maintain the purity of elections and in particular E
   to bring transparency in the process of election, the
   Commission can ask the candidates about the expenditure
   incurred by the political parties and this transparency in the
   process of election would include transparency of a
   candidate who seeks election or re-election. In              a   F
   democracy, the electoral process has a strategic role. The
   little man of this country would have basic elementary right
   to know full particulars of a candidate who is to represent
   him in Parliament wherE;l laws to bind his liberty and,
   property may be enacted.                                         G

   ... 7. Under our Constitution, Article 19(1 )(a) provides for
   freedom of speech and expression. Voters's speech or
   expression in case of election would include casting of,
   votes, that is to say, voter speaks out or expresses by
   casting vote. For this purpose, information about the             H
    378      SUPREME COURT REPORTS                  [2013] 9 S.C.R.

A         candidate to be selected is a must. Voter's (little man-
          citizen's) right to know antecedents including criminal past
          of his candidate contesting election for MP or MLA is much
          more fundamental and basic for survival of democracy.
          The little man may think over before making his
8         choice of electing law-breakers as law-makers."

        18. Thus, this Court held that a voter has the elementary
  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
C democracy and is an integral part of Article 19(1 )(a) of the
  Constitution. It was further held that the voter's speech or
  ~xpression in case of election would include casting of votes,
  that is to say, voter speaks out or expresses by casting vote.
  For this purpose, information about the candidate to be
D 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
  19(1 )(a) of the Constitution of India and any act, which is
  derogative of the fundamental rights is at the very outset ultra
E vires.
          19. With this background, Section 33A of the RP Act was
    enacted by Act 72 of 2002 with effect from 24.08.2002. Thus,
    the purpose of the Act 72 of 2002 was to effectuate the right
    contemplated in Association for Democratic Reforms (supra).
F However, the legislators did not incorporate all the suggestions
    as directed by this Court in the above case but for mandating
    all the candidates to disclose the criminal antecedents under
    Section 33A by filing an affidavit as prescribed along with the
    nomination paper filed under Section 33(1) of the RP Act so
G that the citizens must be aware of the criminal antecedents of
    the candidate before they can exercise their freedom of choice
  · by casting of votes as guaranteed under the Constitution of
    1n·aia. As a result, at present, every candidate is obligated to
    file an affidavit with relevant information with regard to their
H
 RESURGENCE INDIA v. ELECTION COMMISSION                      379
       OF INDIA [P. SATHASIVAM, CJI.]
criminal antecedents, assets and liabilities and educational          A
qualifications.

      20. Let us now test whether the filing of affidavit stating that
the information given in the affidavit is correct but leaving the
contents blank would fulfill the <;>bjective behind filing the same. 8
The reply to this question is a clear denial. The ultimate purpose
of filing of affidavit along with the nomination paper is to
effectuate the fundamental right of the citizen under Article
19(1 )(a) of the Constitution of India. The citizens are required
to have the necessary information at the time of filing of the C
nomination paper in order to make a choice of their voting.
When a candidate files an affidavit with blank particular~. it
renders the affidavit itself nugatory.                         ·.

      21. For that purpose, the Returning Officer can very well
compel a candidate to furnish information relevant on the date D
of scrutiny. We were appraised that the Election Commission
already has a standard draft format for reminding the
candidates to file an affidavit as stipulated. We are of the
opinion that along with the above, another clause may be
inserted for reminding the candidates to fill the blanks with the E
relevant information thereby conveying the message that no
affidavit with blank particulars will be entertained. We reiterate
that it is the duty of the Returning Officer to check whatever the
information required is fully furnished at the time of filing of
affidavit with the nomination paper since such information is very F
vital for giving effect to the 'right to know' of the citizens. If a
candidate fails to fill the blanks even after the reminder by the
Returning Officer, the nomination paper is fit to be rejected. We
do comprehend that the power of Returning Officer to reject the
nomination paper must be exercised very sparingly but the bar G
should not be laid so high that the justice itself is prejudiced.

     22. We also clarify to the extent that in our coherent op:nion
the above power of rejection by the Returning Officer is not
barred by Para 73 of People's Union for Civil Liberties (PUCL)
(supra) which reads as under:-                                        H
    380       SUPREM~ COURT REPORTS                   [2013] 9 S.C.R.


A         "73. While no exception can be taken to the insistence of
          affidavit with regard to the matters specified in the
          judgment in Assn for Democratic Reforms case, the
          direction to reject the nomination paper for furnishing
          wrong information or concealing material information and
B         providing for a summary enquiry at the time of scrutiny of
          the nominations, cannot be justified. In the case of assets
          and liabilities, it would be very difficult for the Returning.
          Officer to consider the truth or otherwise of the details
          furnished with reference to the 'documentary proof. Ver'f
c         often, in such matters the documentary proof may not be
          clinching and the candidate concerned may be
          handicapped to rebut the allegation then and there. If
          sufficient time is provided, he may be able to produce proof
           to contradict the objector's version. It is true that the
           aforesaid directions issued by the Election Commission
D
           are not under challenge but at the same time prima facie
           it appears that the Election Commission is required to
           revise its instructions in the light of directions issued in
          Assn for Democratic Reforms case and as provided under
           the Representation of the People Act and its third
E          Amendment."

       23. The aforesaid paragraph, no doubt, stresses on the
  importance of filing of affidavit, however, opines that the
  direction to reject the nomination paper for furnishing wrong
F 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 be clinching and the candidate concerned may be
  handicapped to rebut the allegation then and there. This Court
G was of the opinion that if sufficient time is provided, the
  candidate may be in a position to produce proof to contradict
  the objector's version. The object behind penning down the
  aforesaid reasoning is to accommodate genuine situation
  where the candidate is trapped by false allegations and is
H unable to rebut the allegation within a short time. Para 73 of
 RESURGENCE INDIA v. ELECTION COMMISSION OF 381
          INDIA [P. SATHASIVAM, CJI.]
  the aforesaid judgment nowhere contemplates a situation where          A
  it bars the Returning Officer to reject the nomination paper on
. account of filing affidavit with particulars left blank. Therefore,
  we hereby clarify that the above said paragraph will not come
  in the way of the Returning Officer to reject the nomination
  paper if the said affidavit is filed with blank columns. The           B
  candidate must take the minimum effort to explicitly remark as
  'NIL' or 'Not Applicable' or 'Not known' in the columns and not
  to leave the particulars blank, if he desires that his nomination
  paper be accepted by the Returning Officer.

      24. At this juncture, it is vital to refer to Section 125A of      C
 the RP Act. As an outcome, the act of failure on the part of the
 candidate to furnish relevant information, as mandated by
 Section 33A of the RP Act, will result in prosecution of the
 candidate. Hence, filing of affidavit with blank space will be
 directly hit by Section 125A(i) of the RP Act. However, as the          D
 nomination paper itself is rejected by the Returning officer, we
 find no reason why the candidate must again be penalized for
 the same act by prosecuting him/her.

      25. If we accept the contention raised by Union of India,          E
 viz., the candidate who has filed an affidavit with false
 information as well as the candidate who has filed an affidavit
 with particulars left blank should be treated at par, it will result
 in breach of fundamental right guaranteed under Article
 19(1 )(a) of the Constitution, viz., 'right to know', which is          F
 inclusive of freedom of speech and expression as interpreted
 in Association for Democratic Reforms (supra).

        26. In succinct, if the Election Commission accepts the
 nomination papers in spite of blank particulars in the affidavits,
 it will directly violate the fundamental right of the citizen to know   G
 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
 in Association for Democratic Reforms (supra). Further, the
 subsequent act of prosecuting the candidate under Section               H
    382      SUPREME COURT REPORTS                    [2013] 9 S.C.R.

A 125A(i) will bear no significance as far as the breach of
  fundamental right of the citizen is concerned. For the aforesaid
  reasons, we are unable to accept the contention of the Union
  of India.

       27. What emerges from the above discussion can be
8
    summarized in the form of following directions:

      (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 information is universally
C recognized. Thus, it is held that right to know about the
  candidate is a natural right flowing from the concept of
  democracy and is an integral part of Article 19(1 )(a) of the
  Constitution.

0       (ii) The ultimate purpose of filing of affidavit along with the
  nomination paper is to effectuate the fundamental right of the
  citizens under Article 19(1 )(a) of the 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
E Returning Officer can very well compel a candidate to furnish
  the relevant information.

         (iii) Filing of affidavit with blank particulars will render the
    affidavit nugatory.

F       (iv) It is the duty of the Returning Officer to check whether
  the information required is fully furnished at the time of filing of
  affidavit with the nomination paper since such information is very
  vital for giving effect to the 'right to know' of the citizens. If a
  candidate fails to fill the blanks even after the reminder by the
G Returning Officer, the nomination paper is fit to be rejected. We
  do comprehend that the power of Returning 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.

       (v) We clarify to the extent that Para 73 of People's Union
H for Civil Liberties case (supra) will not come in the way of the
RESURGENCE INDIA v. ELECTION COMMISSION OF 383
         INDIA [P. SATHASIVAM, CJI.]
Returning Officer to reject the nomination paper when affidavit     A
is filed with blank particulars.

    (vi) The candidate must take the minimum effort to explicitly
remark as 'NIL' or 'Not Applicable' or 'Not known' in the columns
and not to leave the particulars blank.                             8
    (vii) Filing of affidavit with blanks will be directly hit by
Section 125A(i) of the RP Act However, as the nomination
paper itself is rejected by the Returning Officer, we find no
reason why the candidate must be again penalized for the
same act by prosecuting him/her.                                    C

     28. The Writ Petition is disposed of with the above
directions.

R.P.                                 Writ Petition disposed of.