Umang Singhar vs Chhattar Singh and Others

S.K. Seth, J.

Petitioner, one of the defeated candidates, is questioning the election of Respondent No. 1 to House of People in the 14th General Elections, 2004 from Dhar Reserved Constituency No. 25 in the State of Madhya Pradesh.

Relevant facts are undisputed. Shorn of unnecessary details, they are as under:

Petitioner and Respondent No. 1 belong to reserved category (Scheduled tribe). Petitioner and Respondent No. 1 contested said election as candidates of Indian National Congress (I) party and Bhartiya Janta Party respectively. It may be mentioned that Respondents No. 2 to 4 also contested said election as Samajwadi Party, Bahujan Samaj Party and independent candidates. Respondent No. 1 polled maximum number of votes and was declared elected, defeating Petitioner and other Respondents. Petitioner, the nearest rival candidate, lost the election by a margin of a few thousand votes. Hence, this petition u/s 81 of the Representation of the People Act, 1951 ("the Act of 1951" for short) calling in question election of Respondent No. 1 on the sole ground that in the affidavit, Respondent No. 1 did not disclose details of his acquittal in ST No. 46 of 1990, therefore, he is guilty of suppressing materials. The following relief are claimed:

A. Election of Respondent No. 1 from Dhar Constituency No. 25 to the 14th Lok Sabha 2004 be declared void and ineffective; and

B. Petitioner be declared as duly elected candidate from Dhar Constituency No. 25 of the 14th Lok Sabha 2004.

According to averments made in petition, the gravamen of charge levelled against Respondent No. 1 is that he at the time of filing of nomination paper did not mention or furnish particulars of criminal cases in the affidavit as is required under the law. According to Petitioner, Respondent No. 1 is guilty of wilful suppression of material facts relating to his criminal antecedents, therefore, his nomination paper was liable to be rejected in terms of the directions issued by the Election Commission in compliance of the order of Surpeme Court Union of India (UOI) Vs. Association for Democratic Reforms and Another, . The improper acceptance of nomination paper of Respondent No. 1 has materially affected result of election from Dhar Constituency No. 25. Thus, the election of Respondent No. 1 is liable to be declared void and Petitioner, the nearest rival is entitled to be declared duly elected from said Constituency.

After notice, none of Respondents, except Respondent No. 1, has put in appearance to contest this petition. Respondent No. 1 filed written statement and denied allegations made against him in the petition.

According to Respondent No. 1, he is not guilty of suppression of any material fact in the affidavit and his nomination paper was not liable to be rejected and that, too, when no such objection was taken by the Petitioner at the time of scrutiny of nomination papers. It is further pointed that in the affidavit Respondent No. 1 had disclosed relevant particulars of the criminal case in which he was prosecuted and sentenced. According to him, subsequent to the decision of Supreme Court in Union of India (UOI) Vs. Association for Democratic Reforms and Another, the Act of 1951 was amended by Representation of the People (Third Amendment) Act, 2002 w.e.f. 24.8.2002 and Section 33A pertaining to Right to Information was inserted. As per amended law, Respondent No. 1 is not required to disclose details of criminal case in which he has been acquitted. It was pointed out that Constitutional validity of the Representation of the People (Third Amendment) Act, 2002 was challenged and the Supreme Court by Order dated 13.3.2004, not only upheld the validity of Section 33A, but further held that a candidate is not required to disclose the criminal cases in which he is acquitted or discharged. Said decision is reported in People''s Union for civil Liberties (PUCL) and Others Vs. Union of India (UOI) and Another, . In the light of said decision of the Supreme Court, Election Commission of India has issued fresh directives on 27.3.2003 requiring a candidate to disclose relevant details but it is no longer necessary to disclose cases leading to acquittal or discharge from criminal charges. Thus, Respondent No. 1 denied that he wilfully suppressed details of criminal case leading to his acquittal. He further denied that the non-disclosure violates any law and as such, neither acceptance of nomination paper nor the result after poll is void, ineffective requiring declaration of result in favour of Petitioner. According to him, entire petition being devoid of any substance, merits rejection with heavy costs.

Based upon pleadings of parties, this Court framed and explained the following issues for trial.

A. Whether Respondent No. 1 was bound to disclose details of ST No. 46 of 1990 in which he was prosecuted for offences punishable under Sections 306, 324/34. Indian Penal Code but later on acquitted? Effect.

B. Whether the Returning Officer committed any illegality in accepting the nomination form of the Respondent No. 1?

C. Relief and costs.

Contentions:

Learned Counsel for Petitioner vehemently argued that Supreme Court in Union of India (UOI) Vs. Association for Democratic Reforms and Another, recognised that in a democracy, electoral process has a strategic role. Voters have a right to elect a candidate of their choice. The educational qualifications, criminal antecedents, financial assets and liabilities of prospective candidates play vital function in the process of election of candidates to the law-making bodies. Thus, right to get information in a democracy is recognised as natural right flowing from Article 19(1)(a) of the Constitution. In compliance of the said Order of the Supreme Court, the Election Commission of India issued directions making imperative disclosure of relevant information, including past and present criminal background of a candidate at the time of filing of nomination paper and any default may entail rejection of nomination paper at the threshold. In the light of declaration of law, learned Counsel for Petitioner referred to the Affidavit (Ann. P-7) filed by Respondent No. 1 at the time of nomination and pointed out that Respondent No. 1 did not disclose detail regarding his prosecution in ST No. 46 of 1990 therefore, improper acceptance of nomination paper has materially affected the result of election. Consequently, election of Respondent No. 1 from Dhar Reserved Constituency No. 25 is liable to be declared void and the Petitioner is entitled to be declared duly elected from that Constituency to 14th Lok Sabha.

Per contra, learned Counsel for Respondent No. 1 submitted that directions issued by the Supreme Court in Union of India (UOI) Vs. Association for Democratic Reforms and Another, were subject to law made by competent Legislature in this regard. He contended that after the said decision. Parliament enacted Representation of the People (Third Amendment) Act, 2002. By the said amending Act, besides new Chapter VII A, sections, viz. Sections 33A and 33B, 75A and 125A were inserted in the Act of 1951. Existing Section 169 was also amended. According to him, in view of the amended law, it is no longer necessary to furnish particulars of criminal case in which a prospective candidate is acquitted or discharged. Referring to the Affidavit (Ann. P-7) he pointed out that relevant details of conviction and sentence were disclosed and as such, it could not be said that Respondent No. 1 is guilty of suppressing material information entailing rejection of his nomination paper. He further pointed out that the Supreme Court examined the Constitutional validity of Third Amending Act in a latter decision reported in People''s Union for civil Liberties (PUCL) and Others Vs. Union of India (UOI) and Another, and so far as Section 33A is concerned, its validity was upheld. Thus, according to learned Counsel for Respondent No. 1, there is no merit and substance in the petition and it deserves to be dismissed with costs.

Reasons for findings:

After having heard learned Counsel for contesting parties and going through material on record, in the considered opinion of this Court there is no merit and substance in the present petition.

It is pertinent to point out that both learned Counsel appearing for Petitioner and Respondent No. 1, submitted that for trial, the issues framed, needed no oral or documentary evidence. Accordingly, they gave up right to lead evidence and advance oral submissions.

In order to appreciate rival submissions, it would be necessary to mention that after throwing the yoke of British Rule, we have Constitutionally adopted Democratic Republic, based upon Parliamentary System of Government elected through universal adult suffrage. Within half a century of working of democracy, need for electoral reforms in the existing set up, was acutely felt, particularly in the context of purging the system of criminalisation. Recognising the need. Supreme Court in Union of India (UOI) Vs. Association for Democratic Reforms and Another, held that in a democratic form of Government, which is part of the basic structure of the Constitution, voters are of utmost importance. For maintaining purity of elections, vibrant and healthy democracy, voters have the right to know relevant antecedents of the candidates contesting the elections. This right of information of the voter is part of fundamental right of speech and expression enshrined in Article 19(1)(a) of the Constitution. Supreme Court, therefore, in order to fill up the vacuum, vide paragraph 48 of the judgment, issued directions which read as under

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.

Pursuant to the Order of the Supreme Court, Election Commission issued directions on 28.6.2002, requiring amongst other things, filing of affidavit disclosing relevant information including history of pending and past criminal cases resulting in conviction or acquittal, at the time of filing of nomination paper. However, subsequent to that decision, law has been changed. Initially the Ordinance No. 4 of 2002 filled up the statutory vacuum w.e.f. 24.8.2002. Later on, the Representation of the People (Third Amendment) Act, 2002 (Act No. 72 of 2002) replaced the Ordinance. The Amending Act 72 of 2002, besides adding new Chapter VIIA, has also inserted new sections, viz. Sections 33A and 33B, 75A and 125A in the Act of 1951. Section 33A, which is relevant for the purposes of the case in hand, deals with Right to Information and reads as under:

Section 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 nomination paper is delivered.

From a bare perusal of provisions contained in this section, it is clear that a prospective candidate is not required to disclose particulars of the criminal case in which he has been acquitted or discharged. The Constitutional validity of Section 33A has been upheld in People''s Union for civil Liberties (PUCL) and Others Vs. Union of India (UOI) and Another, . The latest directions issued on 27.3.2003 by the Election Commission, are also in tune with the aforesaid decision of the Supreme Court. In fact, His Lordship. P. Venkatarama Reddy, J. expressing majority view, held at page 470 as under (ibid):

As regards acquittals, it is reasonable to take the view that such information will not be of much relevance inasmuch as acquittal prima facie implies that the accused is not connected with the crime or the prosecution has no legs to stand. It is not reasonable to expect that from the factum of prosecution resulting in acquittal, the voters/citizens would be able to judge the candidate better. On the other hand, such information in general has the potential to send misleading signals about the honesty and integrity of the candidate.

In view of the authoritative decision of the Supreme Court and provisions of law as it exists, there is scarcely any merit in the election petition and we have no hesitation in holding that Respondent No. 1 was not required to disclose in the affidavit, details of criminal case ST No. 46 of 1990 in which he was acquitted. As such, it could not be said that he is guilty of suppression of material facts or the Returning Officer in accepting nomination of Respondent No. 1 committed any illegality. It is also clear that nomination paper of Respondent No. 1 was not liable to be rejected on that count as claimed by the Petitioner in this petition.

The upshot of the foregoing discussion is that present election petition does not raise any issue requiring trial by this Court, and the inevitable result is that Petitioner is not entitled to any relief. Thus, the election petition fails and accordingly, it is, hereby dismissed with costs u/s 119 of the Representation of People Act, 1951. Petitioner shall pay Rs. 5,000/- inclusive of counsel''s fee of Respondent No. 1.

Let intimation of the substance of the decision under the seal and signature of the Registrar of this Court be sent to the Election Commission and the Speaker of Lok Sabha forthwith, followed by an authentic copy of this order in compliance of provisions contained in Section 103 of the Representation of the People Act of 1951.