Case BriefsSupreme Court

   

Supreme Court: In a Special leave petition under Article 136 of the Constitution against a judgment passed by the High Court of Karnataka, wherein the court set aside the election of the appellant to the Mysore Municipal Corporation as Councillor, the full bench of Uday Umesh Lalit, CJ., Indira Banerjee* and Ajay Rastogi, JJ. has affirmed the setting aside of the election of the appellant and observed that the non-disclosure of assets would amount to ‘corrupt practices’, entailing disqualification, as evident from Sections 35 and 39(ii) of the Karnataka Municipal Corporations (KMC) Act, read with Section 123(2) of the Representation of People (RP) Act 1951.

In the present case, the appellant in 2018 filed her nomination for election to the Mysore Municipal Corporation, as Councillor which was reserved for Backward Class-B (Women), along with a declaration by way of an affidavit, furnishing details of the movable and immovable properties held by her as well as her spouse and dependents (Affidavit of Assets). After the elections the appellant was declared as successfully elected Councillor. One of the respondents-an unsuccessful candidate filed an Election Petition under Sections 33 and 34 of the KMC Act, 1976 alleging that the appellant in her Affidavit of Assets, falsely declared that her husband did not possess any immovable property, and that by giving such false declaration, the Appellant had indulged in corrupt practices to get the benefit of reservation under the Category of Backward Class- B.

The Court noted that initially the Trial Court rejected the petition. After that, on appeal, the High Court remanded the election petition back to the Trial Court, for reconsideration. Thereafter, the Trial Court allowed the election petition and set aside the election of the appellant, and the High Court upheld the same.

The Court found on facts that the candidate concerned did not have any subsisting contracts with the State Government, but with entities under the control of the State Government. Thus, the Court held that “the State Government was different from legal or other authorities under its control”. Placing reliance on the ruling in Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691, wherein the Court held that “except in accordance with Statute, there is no right to elect, be elected or to dispute an election, as approved and reiterated in Shrikant v. Vasantrao, (2006) 2 SCC 682 is well settled”. Thus, it was observed that “an election petition is indisputably a statutory proceeding governed by the statute under which it is filed, or the Statutory Rules framed under that statute”.

Further, it took note of the decision in Shailesh Manubhai Parmar v. Election Commission of India, (2018) 9 SCC 100 wherein the Court held that “even though Article 324 of the Constitution confers wide powers on the Election Commission to take action with a view to ensure a free and fair election, even by assuming the role of an adviser, the power to make law vests in the Parliament under Article 327 of the Constitution. The Parliament is supreme and, therefore, not bound by any advice of the Election Commission”

The Court further viewed that a false declaration regarding the assets of a candidate, his/her spouse or dependents, constitutes corrupt practice irrespective of the impact of such a false declaration on the election of the candidate. It may be presumed that a false declaration impacts the election.

The Court also took note of the relevant provisions of the KMC Act, 1976, governing the election of the appellant, and observed that under Section 39 of the KMC Act, corrupt practices include undue influence. The definition of undue influence in Clause 2 of Section 123 of the Representation of the People (RP) Act, 1951, has been incorporated in Section 39(2) of the KMC Act. Further, under Section 27 of the KMC Act, corrupt practices defined in Section 39(2) which includes “undue influence’ entails disqualification from being a Councillor, for six years.

The Court noted that the appellant has admitted that she has made incorrect statements in the affidavit by falsely stating that her husband’s name was ‘Nanjegowda’ instead of stating his real name ‘Madegowda’, and she has stated that her husband did not own any movable or immovable properties although he owned large number of movable properties.

The Court viewed that in Lok Prahari v. Union of India, (2018) 4 SCC 699, the Court interpreted Section 123(2) of the 1951 RP Act and held that “the non-disclosure would amount to ‘undue influence’ as defined under the Representation of People Act”. The definition of ‘undue influence’ as used in Section 123(2) of 1951 RP Act is also adopted by Section 39(2) of the KMC Act. Therefore, the non-disclosure of assets in the municipal elections would also amount to ‘undue influence’ and consequently to ‘corrupt practice’.

Placing reliance on the ruling in Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294, the Court rejected the argument of the appellant that the State Election Commission did not have the power to issue the Notifications dated 14.07.2003 and 19.06.2018, making it mandatory for candidates to file affidavits disclosing the assets of their spouses, since there was no such requirement in the KMC Act. Further, it took note of the decision in Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467, wherein the Court upheld a notification of the Tamil Nadu State Election Commission requiring that every candidate contesting elections to a local body, should disclose whether there was any criminal case pending against him.

Moreover, the Court observed that the appellant is estopped from questioning the validity of the notifications or the power of the State Election Commission to issue the same, as these notifications have never been questioned by her, rather, she accepted the notifications as binding on her, and accordingly filed an affidavit.

Further, the Court held that, “as the KMC Act incorporates the definition of undue influence in Section 123(2) of the 1951 RP Act. The judgments of this Court interpreting ‘undue influence’ in Section 123(2) of the 1951, RP Act, would squarely apply to the interpretation of undue influence under Section 39(2) of the KMC Act. Therefore, the non-disclosure of assets would also amount to ‘undue influence’ and consequently to ‘corrupt practices’ under the KMC Act.

Moreover, the Court observed that the question of, whether the Election Commission had power to issue directions to the candidates to file affidavits disclosing the assets of their spouses, in the absence of any specific provision under the KMC Act or the Rules framed thereunder is no longer res integra., as it is squarely covered by the law laid down in Union of India v. Association for Democratic Reforms and Ors. , wherein the Court has directed the Election Commission to secure to voters, inter alia, information pertaining to assets not only of the candidates but also of their spouse and dependents.

The Court also observed that the notification dated 14. 07.2003 was issued pursuant to the judgment in Association for Democratic Reforms (supra), where this Court held that “the Constitution has made comprehensive provision under Article 324 to take care of surprise situations and it operates in areas left unoccupied by legislation.”

Further, it was observed that the language and tenor of Article 243-ZA (1) is in pari materia with Article 324(1) of the Constitution. The Election Commission has wide powers under Article 324(1) of the Constitution of India to issue directions necessary for conducting free and fair elections, subject to the contours of law. The power of the Election Commission includes the power to issue directions where the law is silent. The State Election Commission has the same powers under Article 243-K and 243-ZA (1) as the Election Commission of India has under Article 324(1) of the Constitution of India.

Moreover, the Court observed that in Association for Democratic Reforms (supra) and in Lok Prahari (supra) it was held that for effective exercise of his fundamental right under Article 19(1) (a), the voter is entitled to have all relevant information about candidates at an election which would include criminal antecedents of the candidate, his/her assets and liabilities, educational qualifications, etc. Further, amendment of the KMC Act is exclusively within the domain of the Karnataka State Legislature. However, by placing reliance on the decision in Association for Democratic Reforms (supra), the Court held that “there is no legal or normative impediment for the State Election Commission to issue directions requiring disclosure of assets of the candidate, his/her spouse and dependent associates by way of affidavit“. Thus, by issuing the notification dated 14.07.2003, the Election Commission has not encroached into the legislative domain of the Karnataka State legislature.

The Court also observed that India is a quasi-federal State and while the division of powers between the Union Government and the State Governments is an essential feature of federalism, however, in matters of national importance, without disturbing the division of powers, a uniform policy is essential in the interest of all the states. Further, it was observed that the Election Commission must act within the four corners of law made by the legislature, and held that in the present case the Election Commission has issued the notification dated 14.07.2003 within the contours of law.

Further, the Court viewed that Purity of election at all levels is a matter of national importance in which a uniform policy is desirable in the interest of all the States. A hyper technical view of the omission to incorporate any specific provision in the KMC Election Rules, like the 1961 Rules, expressly requiring disclosure of assets, to condone dishonesty and corrupt practice would be against the spirit of the Constitution and public interest. Thus, the Court found no grounds to set aside the impugned judgment of the High Court affirming the setting aside of the election of the appellant.

[S. Rukmini Madegowda v. State Election Commission, 2022 SCC OnLine SC 1218, decided on 14.09.2022]

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., held that an election petition cannot be thrown out at the threshold on a plea of that the petition is not supported by an affidavit in Form 25 even though the petition is based on allegations of corrupt practices.

The appellant, a Bharatiya Janata Party candidate from 16 Hassan (General) Parliamentary Constituency in the 2019 elections had secured 5,35,282 votes; while the respondent 1, a Janatha Dal Secular Party candidate had secured 6,76,606 votes. The appellant preferred an election petition stating that respondent 1’s election was liable to be declared void as he had filed a false affidavit and consequently the appellant should be declared as duly elected on account of his having secured the second highest votes.

The aforesaid petition had been resisted by the respondent 1 at the threshold on the following grounds:

  1. Non-compliance of Section 81(3) of the RP Act on the ground that the election petition was not attested by the appellant under his own signature as a true copy.
  2. As the appellant had made allegations which would constitute an allegation of “corrupt practice”, the proviso to Section 83(1) of the RP Act mandates that such allegations must be accompanied by an affidavit in accordance with Form 25 as required Section 94A of the Conduct of Election Rules, 1962.

The appellant contended that the question of filing Form 25 would arise only if there was any allegations of corrupt practice as defined by Section 123 of the RP Act but the election petition actually fell within the purview of Section 33A of the RP Act as the allegation dealt with suppression of information which was simply alluding to the observations of this Court in Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467, opining that non-disclosure of assets and income amounts to corrupt practice.

Findings of the High Court

On the issue that the election petition was not duly attested, the High Court noticed that the only issue was about the index and the synopsis not being signed by the appellant. Therefore, the High Court held that the appellant had substantially complied with the requirements as he had attested the election petition with his endorsement that it was a correct copy of the election petition.

However, rejecting the contention of the appellant’s that the allegations were confined only to Section 33A of the RP Act, the High Court held that the use of the phrase “any corrupt practice” in the proviso to Section 83 of the RP Act covers allegations of every manner of corrupt practice envisaged under the RP Act. The High Court was of the view that the appellant had alleged undue influence and improper acceptance of respondent 1’s nomination under Sections 123 and 100 of the RP Act respectively.

Accordingly, the High Court dismissed the petition as not maintainable on the ground that Form 25 was an integral part of the election petition and its complete absence would mean that there was total non-compliance of Section 83 of the RP Act.

Whether non-filing of affidavit in compliance with Section 83(1) of the RP Act fatal to the maintainability of an election petition?

Citing the judgment of the Constitution Bench in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (1964) 3 SCR 573, the Bench stated that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petition summarily and such an affidavit can be permitted to be filed later. The Constitution Bench judgment was also referred to in of G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, to come to a conclusion that non-compliance with proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied, i.e., even in the absence of compliance, the petition would still be called an election petition.

Although, the Bench upheld the findings of the High Court that the allegations of the appellant were not confined only to Section 33A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of respondent 1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act, it declined to agree with the conclusion that the non-submission of Form 25 would lead to the dismissal of the election petition.

Factual Analysis

On the issue of non-compliance with Sect 81 (3) of RP Act, the Bench opined that the hyper-technical view sought to be taken of non-signing and verification of the index and the synopsis had been rightly rejected by the High Court. However, on the issue with regard to non-filing of affidavit, the Bench observed that the prayer clause was followed by verification and there was also a verifying affidavit in support of the election petition. Thus, factually, the Bench was of the view that it would not be appropriate to say that there was no affidavit in support of the petition, albeit not in Form 25. Which, said the Bench, was a curable defect and the High Court ought to have granted an opportunity to the appellant to file an affidavit in support of the petition in Form 25 in addition to the already existing affidavit filed with the election petition. The Bench added,

“We have to appreciate that the petition is at a threshold stage. It is not as if the appellant has failed to cure the defect even on being pointed out so.”

Conclusion

Consequently, the impugned order of the High Court was aside and the application filed by the respondent 1 under Order 7 Rule 11, S. 151 of the CPC and S. 86(1) of the RP Act was dismissed with liberty to the appellant to file an appropriate affidavit in Form 25 within fifteen (15) days.

[A. Manju v. Prajwal Revanna, 2021 SCC OnLine SC 1234, decided on 13-12-2021]


Kamini Sharma, Editorial Assistant has put this report together


*Judgment by: Justice Sanjay Kishan Kaul

 

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal, Prevention of Money Laundering Act (New Delhi): A Coram of Manmohan Singh (Chairman), J. and G.C. Mishra (Member) allowed an appeal under Section 26 of the Prevention of Money Laundering Act, 2002 against an order passed by the Adjudicating Authority for attaching property.

In the instant case the CBI registered a criminal case under Section 120-B of Penal Code, 1860 read with Sections 7, 12, 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against one Joint Director of Enforcement Directorate (ED) wherein it was alleged that he assisted the appellant (herein), indulging in corrupt practices in an investigation. It was also alleged that they had taken a huge amount of bribes as quid-pro-quo for acts of omission and commission during the said investigation. As a result, the appellant was arrested by CBI and a charge sheet was filed against him. On the basis of the registration of the case by CBI, a Prevention of Money Laundering Act, 2002 (PMLA) case was also recorded at New Delhi. The ED provisionally attached the immovable property of the appellant which was confirmed by the Adjudicating Authority.

The respondent’s counsel, Shilpi Satyapriya Satyam, contended that the aforesaid property was attached as a “value thereof” in accordance with provision made under Section 2(1)(u) read with Section 2(1)(v) of the PMLA. The counsel for the appellant, R.K. Handoo, drew the attention of the Tribunal to the provision in Section 8(3)(a) of PMLA, 2002 as amended by Act 13 of 2018 which reads as, “a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be. On the basis of this the counsel contended that the confirmation order of attachment passed by the Adjudicating Authority did not survive. Also, no prosecution complaint was filed against the appeal, and hence the appeal be allowed.

The Tribunal found, “It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case.” It was further noted, “Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or retention of property or record post confirmation of attachment/retention and it is the intention of the legislature not to allow the Investigating Authority to get the property attached or retained the record/documents/items indefinitely in the name of investigation.”

Thus, the appeal was allowed. The Tribunal directed the appellant to move to the concerned Special Court for an appropriate remedy, wherein the Prosecution Complaint was pending and his property was made part and parcel of that complaint.[Sanjay Kumar v. Deputy Director Directorate of Enforcement, New Delhi, 2019 SCC OnLine ATPMLA 9, decided on 12-04-2019]

Supreme Court

Supreme Court: Criminalisation of politics was the high point of the discussion in the instant case as the Court sat to decide the constituents of ‘undue influence’ in the context of Section 260 of Tamil Nadu Panchayats Act, 1994 which has adopted the similar expression as has been used under Section 123 (2) of the Representation of People’s Act, 1951. The Court observed that revelation of pending criminal cases is a necessary obligation upon the candidates while filing the nomination and concealment of the same hinders the voter’s right to make an informed choice as it becomes a direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate. It was further observed that since in the present case the candidate had the knowledge of the pending case upon which cognizance has been taken and he had chosen not to disclose the fact, this therefore would amount to ‘undue influence’ and would be a corrupt practice therefore the Election Tribunal is to declare the election null and void under Section 100(1)(b) of Representation of People’s Act, 1951.

In the instant case the validity of the appellant’s election to the post of President of Thekampatti Panchayat, Mettupalayam Taluk, Coimbatore district, Tamil Nadu was challenged due to non- disclosure of full particulars of criminal case by the appellant while filing the nomination. The Tamil Nadu State Election Commission makes it mandatory to every candidate desiring to contest an election to a local body to disclose that whether the candidate has any pending criminal case for any offence punishable with imprisonment for two years or more and in which charges have been framed or cognizance taken by any Court. The Coimbatore Election Tribunal declared the election void on grounds of the non- disclosure which was affirmed by the Madras High Court. V. Mohana and R. A. Padmanabhan represented the appellant and respondent respectively along with noted counsel Harish Salve who was the Amicus Curiae.

The Court raised serious concerns over the mushroom growth in criminalisation of politics and referred various decisions of the past where it was reiterated that a citizen’s right to vote is a medium of expression and the voter has a right to know about the background especially criminal background of any candidate that are in the fray to be elected for it leads to the path of good governance. The Court further observed that transparency is the most cherished feature of democracy and failure to disclose the criminal antecedents by a candidate amounts to corrupt practice eventually destroying the sanctity of constitutional democracy. It was also observed that 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.    Krishnamoorthy v. Sivakumar, 2015 SCC OnLine SC 102, decided on 05.02.2015