Karan Singh Tanwar vs Surender Singh And Ors
2017 Latest Caselaw 1845 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         EL.PET. 3/2015

                                              Reserved on:      15.12.2016
                                              Date of decision: 17.04.2017
IN THE MATTER OF:
KARAN SINGH TANWAR                              ..... Petitioner
                  Through: Mr. P.D. Gupta, Senior Advocate with
                  Mr. Atul Gupta, Advocate

                          versus


SURENDER SINGH AND ORS                         ..... Respondents
                 Through: Mr. Manav Gupta, Ms. Esha Dutta,
                 Mr. Sahil Garg and Ms. Ridhi Munjal, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

I.A. 1354/2016 (by the petitioner under Order XII Rule 6 CPC)

1. The petitioner has invoked the provisions of Order XII Rule 6 CPC and prays that the Election Petition be allowed and the election of the respondent No.1, as a MLA from Constituency-38, Delhi Cantt. in the General Elections to the Legislative Assembly of NCT of Delhi held in February, 2015, be set aside on the ground that sufficient admissions have been made by him for this Court to pass a judgment on admissions.

2. In the accompanying Election Petition filed under Sections 100(1)(d)(i), (iii), (iv), 101, 84 and 125A(ii) of the Representation of the People Act, 1951 (hereinafter referred to as „the R.P. Act‟) read with Article

329(B) of the Constitution of India, the petitioner has challenged the election of the respondent No.1 on several counts. One of the grounds that forms the basis of the present application which as per the petitioner, has been admitted by the respondent No.1 in his reply, is that at the time of filing his nomination papers, in his affidavit dated 19.01.2015, he had furnished incorrect information with regard to his educational qualification to the effect that he is a ―B.A. in 2012 from Sikkim University‖ which is a gross misrepresentation. The petitioner contends that by doing so, the respondent No.1 has successfully exercised undue influence over the voters, which act amounts to a corrupt practice within the meaning of Section 123 of the R.P. Act. The aforesaid assertions have been made by the petitioner in paras 6(b), 8 and 10 of the Election Petition.

3. The petitioner has averred in para 6(b)(v) of the Election Petition that his associate had submitted an application dated 24.3.2015 under the RTI Act to the Sikkim University to gather information about the educational qualifications of the respondent No.1. Vide reply dated 26.03.2015, Sikkim University had informed the applicant that as per the academic record of the year 2014-2015 and all the past academic years, they had no student by the name of Shri Surender Singh (respondent No.1 herein), who had registered for the course of Bachelor of Arts (B.A.) in any Department of the University or its affiliated colleges.

4. In his counter affidavit, the respondent No.1 has denied the allegation that he has taken any undue advantage of the electorate and submitted that he had not graduated from Sikkim University but from EIILM University, Sikkim and due to an ―inadvertent typographical error‖, the name of the former University had been mentioned in his affidavit. A similar submission

has been made by the respondent No.1 in paras 6(b)(v) and 7 of the counter affidavit.

5. Referring to the averments made by the respondent No.1 in his counter affidavit, as noted above and claiming that he has admitted to furnishing incorrect information with regard to his educational qualification in the statutory affidavit required to be filed alongwith his nomination papers, the petitioner has filed the present application stating inter alia that the said nomination paper was liable to be rejected by the Returning Officer, for the reason that it is not in compliance with Sections 33 and 33A of the R.P. Act and was improperly accepted. In this background, the petitioner prays that a judgment on admission be passed on the basis of admissions made by the respondent No.1 and his election be set aside as null and void.

6. To buttress his argument that furnishing of false and incorrect information with regard to his educational status in the statutory affidavit filed by the respondent No.1 alongwith his nomination, amounts to a corrupt practice within the meaning of Section 123 of the R.P. Act, Mr. P.D. Gupta, learned Senior Advocate appearing for the petitioner has cited the following decisions:-

(i) Jyoti Basu and Ors. vs. Debi Ghosal and Ors.; (1982) 1 SCC

(ii) Sri Mairembam Prithviraj @ Prithviraj Singh vs. Shri Pukhrem Sharatchandra Singh; 2016 (10) SCALE 403

(iii) Nand Kishore Garg vs. Jitender Singh Tomar and Ors. in EL.PET.2/2015 decided on 21.09.2016.

(MANU/DE/3474/2016).

7. A reply in opposition to the present application has been filed by the respondent No.1, who has sought to clarify in the preliminary submissions that he had obtained his Bachelor of Arts degree from EIILM University, Sikkim; that the mark-sheets for three years have already been filed alongwith the documents in the main proceedings; that the use of the words, ―Sikkim University‖ instead of the words ―EIILM University, Sikkim‖ is a typographical error and not a deliberate act on his part to win the elections on a false premise, as alleged. Respondent No.1 further states that the said mistake is not of any material consequence as both the Universities are duly recognized by the government. He has gone on to deny the allegation that the explanation offered by him in his counter affidavit should be construed as an admission of facts, as contemplated under Order XII Rule 6 CPC. Respondent No.1 has averred that even otherwise, being a graduate is not a pre-requisite to stand for the election in question. Thus, respondent No.1 has refuted the allegation that he has made a deliberate attempt to furnish false/incorrect information with regard to his educational status or that the said act tantamounts to a corrupt practice within the meaning of Section 123 of the R.P. Act. To fortify his arguments, learned counsel for the respondent No.1 has relied on the following decisions:-

(i) Shambhu Prasad Sharma vs. Shri Charandas Mahant and Ors.;

(2008) 2 AIR Kant R (NOC) 331; (2007) 6 All LJ 778

(ii) Sh. Nand Ram Bagri vs. Sh. Jai Kishan & Ors. (2013) 200 DLT 402

(iii) Pukhrem Sharatchandra Singh vs. Mairembam Prithviraj;

(2015) 16 SCC 149

8. In his rejoinder, the petitioner has denied the averments made by the respondent No.1 in his reply and additionally pleaded that this is not the first occasion when the respondent No.1 has furnished false and incorrect information and even in the earlier election held in the year 2013, he had furnished the very same incorrect information in the statutory affidavit, pertaining to his educational status.

9. It can be seen from the facts narrated above that there is no dispute that the respondent No.1 did not disclose the correct status of his educational qualification in the statutory affidavit filed along with his nomination form. The crucial question that arises for consideration is whether failure on the part of the respondent No.1 to have disclosed the fact that he is a Bachelor of Arts from EIILM University, Sikkim would amount to a non-disclosure of such a nature as would render his nomination invalid and void. For examining whether there was a substantial compliance by the respondent No.1 in the form of information given by him or whether the incorrect information furnished by him would be akin to non-disclosure of material information warranting rejection of his nomination, it is considered necessary to examine the legal position as emerges from the scheme of the R.P. Act, Rules, orders and the judicial precedents.

10. Coming first to the statutory position, the petitioner herein has invoked the provisions of Sections 100(1)(d)(i), (iii) and (iv) of the R.P. Act, which are to the following effect:-

―100. Grounds for declaring election to be void - (1) Subject to the ` provisions of sub-section (2), if the High Court is of the opinion:-

xxx xxx xxx

(d) that the result of the election, in so far as it concerns, a returned candidate, has been materially affected -

(i) by the improper acceptance or any nomination, or xxx xxx xxx

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) or any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.‖

11. As is apparent from the above, Section 100(1) (d)(i) and (iv) refer to the result of the election being ―materially affected‖ by improper acceptance of any nomination and non-compliance with the provisions of the Constitution, Act, Rules and orders. Section 33 that deals with the presentation of the nomination paper and requirement for a valid nomination, prescribes that a nomination paper should be completed in the prescribed form for it to be considered as a valid nomination.

12. Section 33A provides for right to information and requires a candidate to furnish requisite information as detailed therein. The said provision reads as under:-

―33A. 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 (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 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-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 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). (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 to a constituency for which the nomination paper is delivered.‖

13. The other relevant provision is Section 36 that lays down the manner of scrutinizing nominations and states as below:-

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 candidate, and one other person duly authorised 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 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 to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, any nomination on any of the following grounds:--

(a) that on the date fixed for the scrutiny of nominations the 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, 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

(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.

(3) Nothing contained in clause (b) or clause (c)] of sub-section (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any 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 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 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 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.

(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. (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 disqualification mentioned in section 16 of the 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 list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.‖

14. Section 123 of the R.P. Act defines practices that amount to corrupt practices for the purpose of the Act. Section 123(2) and (4) of the Act that is relevant for this case, reads as follows:-

―123. Corrupt practices - The following shall be deemed to be corrupt practices for the purposes of this Act:- (1) Bribery, that is to say -

XXX XXX XXX (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:

Provided that--

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object 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;

(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 of this clause.

(3) XXXXX

(3A) XXXX

(3B) XXXX

(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.‖

15. Section 125A of the R.P. Act that prescribes penalty for filing a false affidavit etc., is reproduced hereinbelow for ready reference:-

―125A. Penalty for filing false affidavit, etc.--A 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

(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 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 both.‖

16. The provisions of the R.P. Act have been discussed and interpreted by the Supreme Court on several occasions. Following are some of the prominent decisions that have expounded on the aspect of disclosure of information:-

(i) Union of India vs. Association for Democratic Reforms and Anr.; (2002) 5 SCC 294

(ii) Shaligram Shrivastava vs. Naresh Singh Patel; (2003) 2 SCC

(iii) People‟s Union for Civil Liberties vs. Union of India (2003) 4 SCC 399;

(iv) Resurgence India vs. Election Commission of India and Anr.;

2014 (14) SCC 189

(v) Kisan Shankar Kathore vs. Arun Dattatray Sawant and Ors.;

2014 (14) SCC 162

(vi) Krishnamoorthy vs. Sivakumar and Ors.; (2015) 3 SCC 467

(vii) Sri Mairembam Prithviraj @ Prithviraj Singh vs. Shri Pukhrem Sharatchandra Singh; 2016 (10) SCALE 403.

17. The legal principles enunciated in the decisions placed at serials no.(i) to (iv) above were discussed by the Supreme Court in the case of Kisan Shankar Kathore (supra). In the said case, walking the tightrope of maintaining purity of the election process and at the same time, avoiding an election petition becoming a source of annoyance to the returned candidate and his constituents, as was cautioned in the case of G.M. Siddeshwar vs. Prasanna Kumar (reported as (2013) 4 SCC 776), the Supreme Court has analysed the earlier decisions on the aspect of disclosure of information.

18. The first landmark judgment of the Supreme Court that provided a stimulus to the electoral reforms in India is Association for Democratic Reforms (supra). In the said case, the Supreme Court held that it was mandatory for every candidate contesting an election to furnish information about his assets and other relevant affairs and that the said requirement is not only an essential part of a free and fair election for that every voter has a right to know about the details of the candidates, such a requirement is also governed by the right of freedom of speech guaranteed under Article

19(1)(a) of the Constitution of India. The entire discussion on the above aspect was succinctly summarised in para 46 of the captioned case as below:-

"46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that:

1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word "elections" is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.

2. The limitation on plenary character of power is when Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar vs. R.K. Trivedi (1985) 4 SCC 628 the Court construed the expression "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which many may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the Election Commission to issue such orders.

3. The word "elections" includes the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the process of choosing a

candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking and opinion. As stated earlier, in Common Cause vs. Union of India (1996) 2 SCC 752, the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election. If on an affidavit a candidate is required to disclose the assets held by him at the time of election, the voter can decide whether he could be re-elected even in case where he has collected tons of money.

Presuming, as contended by the learned Senior Counsel Mr. Ashwani Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. May be true, still this would have its own effect as a step-in-aid and voters may not elect law-breakers as lawmakers and some flowers of democracy may blossom.

4. To maintain the purity of elections and in particular 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 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 laws to bind his liberty and property may be enacted.

5. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the

International Covenant on Civil and Political Rights, which is as under:

"19(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

6. On cumulative reading of a plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the executive to subserve public interest.

7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter'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 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 choice of electing law-breakers as lawmakers." (emphasis added)

19. In Para 48 of the judgment in the captioned case, directions were issued by the Supreme Court, calling upon the candidates to file their affidavits and the nature of information required to be given was specified in the following words:-

"48. 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 Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:

(1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past - if any, whether he is punished with imprisonment or fine.

(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.

(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants. (4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues. (5) The educational qualifications of the candidate."

20. As a sequel to the directions issued in Association for Democratic Reforms (supra), the Parliament amended the R.P. Act w.e.f. 24.08.2002 and introduced Section 33A that requires a candidate to furnish information regarding his criminal antecedents and Section 33B. The aforesaid decision also gave rise to guidelines laid down by the Election Commission in the year 2002. For the record, the amendment by incorporation of Section 33B to the R.P. Act was later on struck down by the Supreme Court in the case of People‟s Union for Civil Liberties vs. Union of India reported as (2003) 4 SCC 399, being in violation of Article 19 (1)(a) of the Constitution.

21. The Conduct of Election Rules, 1961 were also amended w.e.f. 03.09.2002 and Rule 4A was added. Rule 4A prescribes the format of affidavit required to be filed at the time of delivering the nomination paper,

as laid down in Form 26 of the said Rules. A candidate is required to disclose the following information in Form 26:-

"(1) Whether he/she is accused of any offences punishable with imprisonment for two or more years in a pending case in which charges have been framed by the Court of competent jurisdiction and the particulars of such cases.

(2) Whether he has been convicted of an offence and sentenced to imprisonment for one year or more and if so, the particulars of such cases.

(3) His/her educational qualifications giving details of highest school/university education mentioning the full form of the Certificate/Diploma/Degree course, name of the school/college/university and the year in which the course was completed."

22. On 23.03.2006, the Election Commission of India revised its guidelines so as to incorporate the directions issued in the cases of Association for Democratic Reforms (supra) and People‟s Union for Civil Liberties (supra) and issued a fresh set of guidelines. The said guidelines, amongst other directions, called upon every candidate at the time of filing the nomination papers, to furnish full and complete information with regard to the matters specified by the Supreme Court in the captioned decisions, in an affidavit as per the prescribed format. It was declared that non-furnishing of the affidavit would amount to violation of the orders of the Supreme Court and the nomination of the candidate concerned, would be liable to be rejected by the Returning Officer at the time of scrutiny of the nomination. The said guidelines also clarified that apart from the affidavit required to be filed by the candidate in the prescribed format, he shall also have to comply with the other requirements as spelt out in the R.P. Act and the Conduct of

Elections Rules, 1961, as amended in the year 2002.

23. The next relevant decision of the Supreme Court on the aspect of disclosure of information was in the case of Resurgence India (supra), where the petitioner had filed a petition under Article 32 of the Constitution of India, seeking specific directions to meaningfully implement the judgments in the cases of Association for Democratic Reforms (supra) and People‟s Union for Civil Liberties (supra) and to make it mandatory for the Returning Officer to ensure that the affidavits filed by the contestants are complete in every manner and wherever there are blanks, the nominations should be rejected. The backdrop in which the aforesaid petition came to be filed was that in several cases, it was noticed that it had become a practice prevalent amongst many candidates to leave some of the columns blank in their affidavits and omit to provide the requisite information. Taking note of the provisions of Section 33A, 36 and 125A of the R.P. Act and citing an earlier decision in the case of Shaligram Shrivastava (supra), where the Court had discussed the powers of the Returning Officer to reject the nomination papers of a candidate, who files an affidavit omitting to fill up certain blanks, the Supreme Court made the following observations:-

"17. For the removal of doubt, it is hereby clarified that the earlier direction contained in para 14(4) of the earlier order dated 28th June, 2002, in so far as verification of assets and liabilities by means of summary enquiry and rejection of nomination paper on the ground of furnishing wrong information or suppressing material information is not enforceable in pursuance of the order dated 13th March, 2003 of the Apex Court. It is further clarified that apart from the affidavit Annexure-I hereto referred to in para 16(1) above, the candidate shall have to comply with the other requirements as spelt out in the Representation of the People Act, 1951, as

amended by the Representation of the People (Third Amendment) Act, 2002 and the Conduct of Election Rules, 1961, as amended by the Conduct of Elections (Amendment) Rules, 2002."

24. It is instructive to read Para 29 of the captioned case where the Supreme Court had proceeded to summarise the legal position with regard to filing of an affidavit along with the nomination paper, in the following words:-

"29. What emerges from the above discussion can be summarized in the form of following directions: 29.1. 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 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.

29.2. 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 Returning Officer can very well compel a candidate to furnish the relevant information. 29.3. Filing of affidavit with blank particulars will render the affidavit nugatory.

29.4. 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 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. 29.5. We clarify to the extent that Para 73 of People's Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars.

29.6. 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. 29.7. 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." (emphasis added)

25. Thus, it was held in Resurgence India (supra) that a candidate is bound to provide necessary information at the time of filing his nomination papers and the Returning Officer can compel him to furnish the relevant information. If a candidate fails to fill in the blanks even after a reminder by the Returning Officer, then his nomination paper can be rendered as nugatory and if a candidate files an affidavit with blank particulars, it would be liable to be rejected. It was further directed that where there are blanks, a candidate must make the minimum effort to make a remark such as 'Nil' or 'Not Applicable' or 'Not known' in the relevant column but he shall not leave the particulars blank, the purpose being that a citizen has a fundamental right to know all that is necessary to know about the candidate.

26. Coming back to the case of Kisan Shankar Kathore (supra), where the appellant had challenged the decision of the High Court of Bombay allowing an election petition filed by the respondent therein on the ground of non- disclosure of information by the appellant in his nomination paper/affidavit

relating to outstanding dues towards electricity consumption, purchase of a bungalow in the name of his wife and outstanding municipality dues in respect thereof and the fact that the appellant‟s wife owned a vehicle, the Supreme Court upheld the order of the High Court and highlighting the object behind calling upon candidates to furnish information about themselves, made the following pertinent observations:-

"40. We have already reproduced above the relevant portions of judgments in the cases of Association for Democratic Reforms (supra) and People's Union for Civil Liberties (supra) and the guidelines issued by the Election Commission pursuant thereto. A conjoint and combined reading thereof clearly establishes that the main reason for issuing directions by this Court and guidelines by the Election Commission pursuant thereto is that the citizens have fundamental right under Article 19(1)(a) of the Constitution of India to know about the candidates contesting the elections and this is the primary reason that casts a solemn obligation on these candidates to furnish information regarding the criminal antecedents, educational qualifications and assets held by the candidate, his spouse and dependent children. It is on that basis that not only Election Commission has issued guidelines, but also prepared formats in which the affidavits are to be filed. As a fortiorari, it follows that if the required information as per the said format in respect of the assets of the candidate, his wife and dependent children is not given, it would amount to suppression/non-disclosure." (emphasis added)

27. In the case of Krishnamoorthy (supra), where the appellant had not disclosed full particulars of the criminal cases pending against him at the time of filing the nominations to contest in the election and the validity of his election was questioned on the ground that he had filed a false declaration, suppressing the details of the criminal cases pending against

him, the Supreme Court had emphasized that unless a person is disqualified in law to contest the election, he cannot be disqualified to contest. But on the aspect of undue influence due to non-disclosure of criminal cases pending against the candidate, as required under the Act and Rules, it was held that if the affidavit filed by the candidate reflects a suppression of information within his special knowledge and amounts to keeping the electorate in the dark about such information, it tantamounts to non-disclosure of information. The following observations made by the Supreme Court to describe the concept of undue influence and the right of the electorate to use its franchise freely, without any direct or indirect interference by a candidate, are instructive:-

"83. 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 exercise of choice and selection. No candidate is entitled to destroy the sacredness of election by indulging in undue influence. The basic concept of ―undue influence‖ relating to an election is voluntary interference or attempt to interfere with the free exercise of electoral right. The voluntary act also encompasses attempts to interfere with the free exercise of the electoral right. This Court, as noticed earlier, has opined that legitimate canvassing would not amount to undue influence; and that there is a distinction between ―undue influence‖ and ―proper influence‖. The former is totally unacceptable as it impinges upon the voter‟s right to choose and affects the free exercise of the right to vote. At this juncture, we are obliged to say that this Court in certain decisions, as has been noticed earlier, laid down what would constitute ―undue influence‖. The said pronouncements were before the recent decisions in People‟s Union for Civil Liberties vs. Union of India; (2003) 4 SCC 399, People‟s Union for Civil Liberties vs. Union of India, (2013) 10 SCC 1 and other authorities

pertaining to corruption were delivered. That apart, the statutory provision contained in Sections 33, 33A and Rules have been incorporated.

84. In this backdrop, we have to appreciate the spectrum of ―undue influence‖. In People‟s Union for Civil Liberties vs. Union of India; (2003) 4 SCC 399, Venkattarama Reddi, J. has stated thus:

"97. ......Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom".

85. In Patangrao Kadam vs. Prithviraj Sayajirao Yadav Deshmukh (2001) 3 SCC 594, the Court observed that: "13. .......Clean, efficient and benevolent administration are the essential features of good governance which in turn depends upon persons of competency and good character".

86. 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 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 People‟s Union for Civil Liberties vs. Union of India, (2013) 10 SCC 1, can opt not to vote for any candidate. The requirement of a disclosure, especially the criminal antecedents, enables a voter to have an informed and instructed choice. If a voter is denied of the acquaintance to the information and deprived of the condition to be apprised of the entire gamut of criminal antecedents relating to heinous or serious offences or offence of corruption or moral turpitude, the exercise of electoral right would not be an advised one. 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 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 Kamath vs. Ahmad Ishaque and others; AIR 1955 SC 233, Election Commission of India vs. Shivaji; (1988) 1 SCC 277 and V.S. Achuthanandan vs. P.J. Francis; (1999) 3 SCC 737. We have also culled out the principle that corrupt practice can take place prior to voting. The factum of nondisclosure of the requisite information as regards the criminal antecedents, as has been stated hereinabove is a stage prior to voting." (emphasis added)

28. A recent decision of the Supreme Court that needs to be mentioned is the case of Sri Mairembam Prithviraj (supra), where aggrieved by the judgment of the High Court of Manipur, that had declared his election to the Manipur Legislative Assembly as void, the appellant therein had approached the Supreme Court for relief. The ground for declaring the election of the appellant as void was that he had submitted a false declaration relating to his educational qualification in Form 26. Alluding to the earlier line of decisions in Association for Democratic Reforms (supra), People‟s Union for Civil Liberties (supra), Resurgence India (supra) and Kisan Shankar Kathore (supra), the Supreme Court had held that it is clear from the provisions of the Act, Rules and Form 26 prescribed by the Election Commission of India that a duty is cast on candidates to give correct information about their educational qualification as every voter has a fundamental right to know about the same. After noting that the appellant had furnished his educational

qualification in Form 26 as 'MBA from Mysore University', which had turned out to be false, and observing that he had contested an election to the same constituency in the year 2008 and in the affidavit filed by him in Form 26 at that time, had made a similar declaration, the Supreme Court held that said false declaration cannot be said to be a defect, which is not substantial. Rejecting the contention of the appellant that the declaration relating to his educational qualification in the affidavit is only a clerical error, it was held that the said error was of a substantial character and the appellant was afforded an opportunity by the Returning Officer to produce the supporting documents, which was the stage at which he ought to have fairly stated that an error had crept into the declaration, but he had failed to do so.

29. Keeping in mind the aforesaid framework of law and the legal principles relating to disclosure of information that have been enunciated by the Supreme Court in the aforesaid decisions, this Court shall now examine as to whether an incorrect disclosure of his educational qualifications by the respondent No.1 is of a substantial character so as to have unduly influenced the electorate and have materially affected the results of the election, amounting to a corrupt practice within the meaning of R.P. Act.

30. It is clear from the law laid down by the Supreme Court as discussed above that every voter has a fundamental right to know about the criminal antecedents, if any, financial background, liabilities and educational qualification of a candidate, the underlying object being that members of a democratic society should be well informed and take an intelligent and calibrated decision of casting their vote in favour of a particular candidate. Such disclosures are a step-in-aid for voters to evaluate the relative pros and cons of the candidates before casting their precious vote. Non-furnishing of

the required information would amount to falsehood/suppression/non- disclosure. Furnishing incomplete information, making a misrepresentation or suppression of material information on any of the five aspects elucidated by the Election Commission of India in the guidelines issued on 28.06.2002, with reference to the judgment in the case of Association for Democratic Reforms (supra), would be treated as a defect of a substantial character by the Returning Officers.

31. Any act which is calculated to interfere with the free exercise of the electoral right will make a candidate guilty of using "undue influence", a concept dwelled upon by the Supreme Court in the case of Krishnamoorthy (supra), that applies with equal force to the pre-voting stage as it does at the stage of casting the vote. Any attempt to deprive the voters of material information relating to a candidate would taint the election results and infringe upon the fundamental right of a citizen to know, thus nullifying the very foundation of a voter‟s exercise of choice and polluting the purity of the election process.

32. In the instant case, it is an admitted position that the respondent No.1 had not graduated from Sikkim University. However, at the time of filing his nomination papers, in Column 11 of Form 26 which refers to the highest educational qualification and calls upon an applicant to "give details of the highest School/University education mentioning the full form of the certificate/diploma/degree course, name of the School/College/University and the year in which the course was completed," the respondent No.1 had stated that he is a ―B.A. in 2012 from Sikkim University‖. The said information was incorrect to the extent that though the respondent No.1 does possess a B.A. degree, but he had pursued the said course at Eastern Institute

for Integrated Learning in Management (EIILM) University, Sikkim and not from Sikkim University.

33. In the written statement, the respondent No.1 has sought to explain that the use of the words, ―Sikkim University‖ instead of ―EIILM University, Sikkim‖ in Form 26 was a typographical error and not a deliberate attempt to win the elections. It was also clarified that both the Universities are recognized by the Government and even otherwise, possessing a graduation degree not being a pre-requisite to stand for the election in question, it would hardly be of any material consequence.

34. The last limb of the argument advanced by learned counsel for the respondent No.1 that possessing a graduation degree not being a pre- requisite for contesting the elections, the same is an irrelevant consideration for a voter, is unacceptable for the reason that there could be a situation where the voter would be swayed by the level of the educational qualification possessed by a candidate and would prefer to exercise his choice of voting in favour of a candidate with a higher educational qualification vis-à-vis another candidate with lesser educational qualification.

35. The highest qualification disclosed by the respondent No.1 herein is not under challenge because it is not the case of the petitioner that the respondent No.1 does not possess a graduation degree or that the year of completing the Degree course as disclosed, is incorrect. In fact the respondent No.1 has filed copies of his mark sheets issued by EIILM, University, Sikkim for all three years. The petitioner has also not disputed the submission made by the counsel for the respondent No.1 that both the Universities, namely, EIILM University, Sikkim and Sikkim University are

duly recognized by the Government. The challenge laid in the petition is to the incorrect disclosure of the University from where respondent No.1 had actually graduated.

36. The question that arises is that if the respondent No.1 had graduated from Sikkim University instead of EIILM University, Sikkim, could that alone be treated as such a value addition to his educational qualification, so as to have swung the votes in his favour, for being described as resorting to "undue influence". Had it been a case where the respondent No.1 had made a false disclosure of his educational qualification by stating that he had graduated from an eminent University of national repute, take for example, in the case of Delhi, the Delhi University, or Jawahar Lal University, it would have been a different matter for the reason that the eminence of the University would certainly be a factor which could have weighed in his favour and improved upon his prospects in the election. But the respondent No.1 has not made any such tall claim.

37. The omission on the part of the respondent No.1 is of mis-stating that he has graduated from Sikkim University, whereas he had actually graduated from EIILM University, which is also situated in Sikkim. This is not to say that in a situation where the election is being contested in the State of Sikkim, the University in question mentioned in the educational qualification of a candidate would not have made a palpable difference to his standing and reputation in that region. But given the position noted above, this Court does not find any force in the submission made by learned counsel for the petitioner that while making an informed choice between the candidates for the constituency in question, the electorate would have been persuaded to vote in favour of the respondent No.1 simply because he had

graduated from Sikkim University.

38. This Court is inclined to accept the submission made by learned counsel for the respondent No.1 that the incorrect disclosure of the University from where the respondent No.1 had pursued his Degree course cannot be treated as a deliberate attempt on his part to unduly influence the voters. The said defect in the disclosure is not of such a substantial character that could have materially prejudiced the prospect of the election, for it to be termed as a corrupt practice within the meaning of Section 123 of the R.P. Act, resulting in rejection of the nomination of the respondent No.1. Rather, the incorrect disclosure appears to be bonafide and in any case, of inconsequential nature.

39. Resultantly, the present application for setting aside the election of the respondent No.1 on the ground of his making a misrepresentation with respect to the University from where he had acquired his graduation Degree in the declaration form and passing a judgment on admissions, is dismissed. The election petition shall have to go through the rigours of a full fledged trial for a decision. The parties are left to bear their own expenses.

(HIMA KOHLI) JUDGE APRIL 17, 2017 rkb/ap