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Supreme Court of India
P. SATHASIVAM, CJI., RANJANA PRAKASH DESAI & RANJAN GOGOI, JJ.
Resurgence India
Versus
Election Commission of India & Another
Writ Petition (Civil) No. 121 of 2008
Decided On : 13-09-2013
Constitution of India, 1950-Art. 19(1)(a), 32- voter’s right to speech or expression - Issuance of appropriate writ/direction including the writ of mandamus- 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. (Para 19, 27)
Representation of the People Act, 1951- Section 33A- Affidavit with blank entries- 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. (Para 23, 27)
Representation of the People Act, 1951- Section 33A- Every candidate is obligated to file an affidavit with relevant information with regard to their criminal antecedents, assets and liabilities and educational qualifications. (Para 19, 27)
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. (Para 20)
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. (Para 21, 27)
Representation of the People Act, 1951- Section 36(2) and Section 8 -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. (Para 16, 27)
Representation of the People Act, 1951- Section 125A - 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. (Para 24, 27)
Facts of the Case :
Writ of mandamus sought 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.
Findings of the Court :
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. 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.
Result : Writ Petition is disposed of accordingly.
Judgment :-
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 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 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:
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 necessary orders, in exercise of its power under Article 324 of 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 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.
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 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, 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 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 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.
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 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 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.
Brief facts:
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 awakening, social empowerment, human rights and dignity. During Punjab Legislative Assembly Elections
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