Narendrasinh Mulubha Chauhan vs State Election Commission
2021 Latest Caselaw 2592 Guj

          C/SCA/3472/2021                                      ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 3472 of 2021

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                   NARENDRASINH MULUBHA CHAUHAN
                               Versus
                     STATE ELECTION COMMISSION
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Appearance:
MR PRATIK Y JASANI(5325) for the Petitioner(s) No. 1
MS SHRUTI PATHAK, ADVOCATE for the Respondent No.1
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER WITH MS
AISHWARYA GUPTA AGP for the Respondent(s) No. 2
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    CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
           and
           HONOURABLE MR. JUSTICE ILESH J. VORA

                             Date : 18/02/2021

                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1 We have heard Mr. Pratik Jasani, the learned counsel appearing for the writ applicant, Ms. Manisha Lavkumar Shah, the learned Government Pleader assisted by Ms. Aishwarya Gupta, the learned A.G.P. appearing for the respondent No.2 and Ms. Shruti Pathak, the learned counsel appearing for the State Election Commission.

2 The writ applicant herein intends to contest the ensuing election to the Jamnagar Municipal Corporation. He has already filed his nomination form. His nomination form has been duly accepted. He has come before this Court by way of the present writ application complaining that his rival candidate, who has also filed nomination, has failed to disclose about his criminal antecedents in the affidavit. It is the

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case of the writ applicant that failure to disclose such relevant information in the affidavit would entail the consequences of getting the nomination form rejected.

3 We would like to remind the respondents of the decision of the Supreme Court in the case of Resurgence India vs. Election Commission of India and another reported in (2014) 14 SCC 189, wherein the Supreme Court observed as under:

"16 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 the reasoning of a three­Judge 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 was required to state whether he had been convicted or not for any offence mentioned in Section 8 of the RP Act. In actual, 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 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 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.

17 Although, the grounds of contention may not be exactly similar to the case on hand but the reasoning rendered in that 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 and relevant information with regard to the 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

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at the time or before 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 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 such information as sought on the proforma given to him and had also failed to be present personally or through his representative at the time of scrutiny. The statutory duty/power of Returning Officer for holding proper scrutiny of nomination paper was rendered nugatory. No scrutiny of 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."

18 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 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.

19 In the light of the above reasoning, now let us assess the facts of the given case. In Union of India v. Association for Democratic Reforms (2002) 5 SCC 294, this Court arrived at a decision that

"34...the members of a democratic society should be sufficiently 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."

This Court further held that if there was a disclosure by a candidate with regard to his criminal antecedents, assets and liabilities and 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

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to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter ­ a little man ­ to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a). In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, one­sided information, disinformation, misinformation and non­information, 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 having one­sided information only is bound to affect the democracy seriously. Freedom of speech 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 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 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.

* * *

...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 candidate to be selected is a must. Voter's (little man­citizen'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."

    C/SCA/3472/2021                                            ORDER



20     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 democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognized that the citizen's right to know of the candidate who represents him in the Parliament will constitute an integral part of Article 19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires.

21 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). 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 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 India. As a result, at present, every candidate is obligated to file an affidavit with relevant information with regard to their criminal antecedents, assets and liabilities and educational qualifications.

22 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 objective behind filing the same. 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 nomination paper in order to make a choice of their voting. When a candidate files an affidavit with blank particulars, it renders the affidavit itself nugatory.

23 For that purpose, the Returning Officer can very well compel a candidate to furnish information relevant on the date 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 relevant information thereby conveying the message that no affidavit with blank

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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 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.

24 We also clarify to the extent that in our coherent opinion the above power of rejection by the Returning Officer is not barred by Para 73 of People's Union for Civil Liberties (PUCL) v. Union of India (2003) 4 SCC 399 which reads as under:­

"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 providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. In the case of assets and liabilities, it would be very difficult for the Returning Officer to consider the truth or otherwise of the details furnished with reference to the 'documentary proof'. Very often, in such matters the documentary proof may not be clinching and the 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 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 Amendment."

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 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 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

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genuine situation where the candidate is trapped by false allegations and is unable to rebut the allegation within a short time.

25 Para 73 of the aforesaid judgment nowhere contemplates a situation where it bars the Returning Officer to reject the nomination paper on account of filing affidavit with particulars left blank. Therefore, we hereby clarify that the above said paragraph will not come in the way of the Returning Officer to reject the nomination paper if the said affidavit is filed with blank columns. 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, if he desires that his nomination paper be accepted by the Returning Officer.

26 At this juncture, it is vital to refer to Section 125­A of 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 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.

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

28 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 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 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."

4 Thus, the voter has the elementary right to know the full particulars of a candidate who is to represent him in the election be it

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Parliament / Assembly / Municipal Corporation / Municipalities / Panchayats and such right to get the information is universally recognised. It has been held that the right to know about a candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. 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 the nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information. Filing of affidavit with blank particulars will render the affidavit nugatory. 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.

5 In the case on hand, prima facie it seems that the Returning Officer did not bother to check the affidavit and the information furnished in the affidavit.

6 However, we take notice of the fact that the last date to file the nomination form was 6th February 2021 and the date of scrutiny was 8th February 2021. It is not in dispute that after the date of scrutiny, the writ applicant herein raised this issue before the Returning Officer. It was too late in the day for the writ applicant herein to raise such objection after the date of scrutiny.

7 In such circumstances, we are not inclined to entertain this writ application. It shall be open for the writ applicant to avail alternative efficacious remedy of filing an election petition before the Election

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Tribunal in accordance with law.

8 With the above, this writ application stands rejected.

(J. B. PARDIWALA, J)

(ILESH J. VORA,J) CHANDRESH