2015 Supreme(SC) 90

SUPREME COURT OF INDIA
Dipak Misra, Prafulla C. Pant, JJ.
Krishnamoorthy – Appellant
Versus
Sivakumar & Ors. – Respondents
CIVIL APPEAL NO.1478 OF 2015 (@ SLP(C) NO. 14918 OF 2009)
Decided On : 05-02-2015

IMPORTANT POINTS
Court can necessarily issue directions or orders to fill the vacuum or void in a law till suitable law is enacted.
An affidavit leaving contents blank would be nugatory.
Voter has a fundamental right to know antecedents of candidates.
Filling the column with some particulars and deliberately not filling up other relevant particulars, especially, pertaining to the pendency of criminal cases against him; comes within corrupt practice.
An act calculated to interfere with the free exercise of electoral right is corrupt practice; but legitimate canvassing is permissible.
There is a distinction between ‘disqualification’ and ‘corrupt practice’ as also between “undue influence” and “proper influence”.
In case of proven corrupt practice, u/s Section 100(1)(b), High Court is not required to examine its effect on result of the election.
Information required under Rule 4A of the 1961 Rules is in addition to the information required to be provided as per Section 33(1) (i) and (ii) of the 1951 Act.

Headnote:(a) Interpretation of statute – Vacuum in law – Role and power of Court to fill in the vacuum – Act or Rules silent on a particular subject – Authority having constitutional or statutory power to implement it but for the silence of the law – Court can necessarily issue directions or orders on the said subject to fill the vacuum or void till suitable law is enacted. (Para 12)

       (2002) 5 SCC 294 – Relied upon

       (1998) 1 SCC 226; 1992 Supp (2) SCC 651 – Referred

       (b) Representation of People’s Act, 1951 – Section 123(2) r/w Article 19(1)(a) and Article 324 – Voter has a right to know antecedents of the candidate – No provision in the act – Court directing Election Commission to issue necessary orders under Article 324 to require each candidate to furnish details of their criminal antecedents – Act amended to insert Section 33-A and 33-B trying to nullify decision in (1998) 4 SCC 626 – Section 33B held ultra vires in (2003) 4 SCC 399. (Para 13, 14, 17)

       (1978) 1 SCC 405; (1985) 4 SCC 628; (1996) 2 SCC 752; (1998) 4 SCC 626; (2003) 4 SCC 399 – Relied upon

       (c) Representation of People’s Act, 1951 – Section 125A(i) r/w Article 19(1)(a), Constitution of India –– Freedom of expression and right to information of voters – Candidate filing affidavit leaving contents blank – Affidavit would be nugatory. (Para 20, 22)

       (d) Conduct of Election Rules, 1961 – Rules 41(2) and (3) and 49-O – Held, in (2013) 10 SCC 1, ultra vires Section 128 of the 1951 Act and Article 19(1)(a) of the Constitution to the extent they violate the secrecy of voting – Directing Election Commission to provide NOTA in EVMs – Voter has a fundamental right to know antecedents of candidates. (Para 26, 27)

       (2013) 10 SCC 1; (1993) 4 SCC 234; AIR 2014 SC 344 – Relied upon

       (e) Representation of People’s Act, 1951 – Section 123(2) – Need to keep criminals away from elections – Section 62(5) amended to disentitle prisoners from voting – Held valid in (1997) 6 SCC 1 – Non-discloser of criminal cases or misinformation – Nullifies and countermands voter’s exercise of choice – Eventually promotes criminalisation of politics. (Para 32, 36)

       (1980) Supp SCC 53; (1997) 8 SCC 522; (2005) 5 SCC 1; (2010) 7 SCC 1; (2011) 8 SCC 1; (2012) 13 SCC 192; (1997) 4 SCC 306; (1997) 6 SCC 1; (2014) 9 SCC 1; (2013) 4 SCC 642; (2014) 8 SCC 682 – Relied upon

       (f) Representation of People’s Act, 1951 – Section 123(2) r/w 259 and 260(1) and (2), Tamil Nadu Panchayats Act, 1994 – Undue influence – Non-furnishing of information or leaving blank particulars despite reminder by Returning Officer – Nomination paper liable to be rejected – Filling the column with some particulars and deliberately not filling up other relevant particulars, especially, pertaining to the pendency of criminal cases against him – Comes within corrupt practice. (Para 39, 40, 41)

       AIR 2014 SC 344; (2002) 5 SCC 294; (2003) 4 SCC 399; (2014) 9 SCC 1; (1959) 2 SCR 748 – Relied upon

       (g) Representation of People’s Act, 1951 – Section 123(2) – First part of Section 123(2) not restricted or controlled by the provisos – Right to contest an election is neither a fundamental right nor a common law right, it is a statutory right – Election can be nullified on grounds given in the statute, viz. undue influence or corrupt practices – Test for undue influence – An act calculated to interfere with the free exercise of electoral right – Provisions contained in Section 171-C of IPC – To be kept in view – “Undue influence” not to be equated with “proper influence” – Therefore, legitimate canvassing is permissible in a democratic set up. (Para 52 to 55)

       AIR 1968 SC 904; AIR 1959 SC 855; (1970) 2 SCC 567; (1975) 1 SCC 368; (1976) 2 SCC 17; (1980) 2 SCC 350; (1970) 3 SCC 942; (1982) 2 SCC 7; (1986) Supp. SCC 20; (2013) 6 SCC 333; (2014) 3 SCC 222; (2003) 8 SCC 369; (1982) 1 SCC 691; (1970) 2 SCC 567 – Relied upon

       1940 IC 30; (1953) 6 Ele LR 288; (1955) 12 Ele LR 34 – Cited with approval

       AIR 1966 SC 824; (1999) 9 SCC 386; (2011) 2 SCC 621; (2012) 3 SCC 314; (2012) 11 SCC 390; AIR 1952 SC 64; AIR 1954 SC 210 – Referred

       (h) Representation of People’s Act, 1951 – Section 100, Section 100(1)(d)(ii) and Section 100(1)(b) – Election of a candidate has to be invalidated on proven corrupt practices – Section 100(1)(d)(ii) stipulates corrupt practice to materially affect result of election whereas in Section 100(1)(b) there is no requirement as to result of the election – Thus, in case of proven corrupt practice, u/s Section 100(1)(b), High Court is not required to examine its effect on result of the election. (Para 58)

       (1977) 1 SCC 771; (1999) 9 SCC 386; (1969) 3 SCC 238; (1996) 1 SCC 169 – Relied upon

       (i) Conduct of Election Rules, 1961 – Rule 4A r/w Section 33A, 33(1) and 33(1)(i) and (ii), Representation of People’s Act, 1951 – Requires furnishing of details of certain categories of offences in respect of which cognizance has been taken or charges have been framed – Rule 4A is in consonance with Section 33-A – Information required under Rule 4A is in addition to the information required to be provided as per Section 33(1) (i) and (ii). (Para 69)

       (j) Section 123(2) and section 8 – Bar to contest elections – Disqualification and ‘undue influence and corrupt practices’ – Section 8 disqualifies a convicted person from contesting election – Section 123(2) bars a candidate who does not furnish complete information or furnished wrong information. (Para 76, 77)

       (2001) 3 SCC 594 – Relied upon

       (k) Election law – ‘Election’ covers the entire process from the issue of the notification till the declaration of the result. (Para 78)

       AIR 1955 SC 233; (1988) 1 SCC 277; (1999) 3 SCC 737 – Relied upon

       (l) Representation of People’s Act, 1951 – Section 123(2), 33-A and 169 r/w section 171C, Indian Penal Code, 1860 and Rule 4A, Conduct of Election Rules, 1961 – Undue influence – Direct or indirect – Information required to be furnished by the candidate – Should be put in public domain – Not furnishing required information – Is an attempt to suppression of facts, and effort to misguide and keep the people in dark – Amounts to corrupt practice – Distinction between a disqualification and corrupt practice. (Para 83)

       (1970) 2 SCC 567; (1984) 1 SCC 390; AIR 1968 SC 904; (2002) 5 SCC 294; (2003) 4 SCC 399; AIR 2014 SC 344; (2013) 10 SCC 1; (2014) 9 SCC 1; (1975) Supp SCC 1; (2006) 7 SCC 1; (1994) 1 SCC 1 – Relied upon

       (m) Representation of People’s Act, 1951 – Section 123 and Section 100(1)(b) r/w Sections 259 and 260, Tamil Nadu Panchayats Act, 1994 – Appellant involved in 8 cases relating to embezzlement – Not furnishing details as required – High Court rightly holding it corrupt practice and nullifying his election – No interference warranted. (Para 84, 85, 86)

       Facts of the case:

       The appellant was elected as the President of Thekampatti Panchayat, Mettupalayam Taluk, Coimbatore District in the State of Tamil Nadu in the elections held for the said purpose on 13.10.2006.

       The validity of the election was called in question on the sole ground that he had filed a false declaration suppressing the details of criminal cases pending trial against him and, therefore, his nomination deserved to be rejected by the Returning Officer before the District Court Coimbatore.

       The Principal District Judge of Coimbatore, the Election Tribunal came to hold that nomination papers filed by the appellant, the first respondent to the Election Petition, deserved to be rejected and, therefore, he could not have contested the election, and accordingly he declared the election as null and void and ordered for re-election of the post of the President in question.

       High Court held that the elected candidate had not disclosed the full and complete information. The High Court opined that the non-disclosure of full and complete information relating to his implication in criminal cases amounted to an attempt to interfere with the free exercise of electoral right which would fall within the meaning of ‘undue influence’ and consequently ‘corrupt practice’. Being of this view, the High Court agreed with the ultimate conclusion of the tribunal though for a different reason.

       Finding of the Court:

       No interference is warranted in the impugned judgment.

       Result: Appeal dismissed with cost.