RAVI NAMBOOTHIRI versus K.A. BAIJU & ORS on 9 November 2022

[2022] 18 S.C.R. 273

RAVI NAMBOOTHIRI

v.

K.A. BAIJU & ORS.

(Civil Appeal Nos. 8261-8262 of 2022)

NOVEMBER 09, 2022

[S. ABDUL NAZEER AND V. RAMASUBRAMANIAN, JJ.]

Kerala Panchayat Raj Act, 1994 – ss.52(1A), 102(1)(ca),120(2) – Kerala Panchayat Raj (Conduct of Election) Rules, 1995– r.6 – Kerala Police Act, 1960 – ss.38, 52 – Election of the appellantas Councilor of Ward No.5 of Annamanada Gram Panchayath wasset aside – Correctness of – Held: Appellant admittedly failed tofurnish details of his past conviction in Form No.2A – Therefore,the ground on which his election was sought to be declared void,falls squarely within s.102(1)(ca) of the 1994 Act – However, theoffences for which the appellant was convicted were u/s.38 r/w s.52of the Kerala Police Act – Thus, conviction of the appellant wasactually for the disobedience of the directions issued by a policeofficer in connection with holding a dharna in front of the Panchayatoffice – Kerala Police Act is actually the successor legislation ofcertain police enactments of the colonial era, whose object was toscuttle the democratic aspirations of the indigenous population –Once the object behind the provisions of the Kerala Police Act areunderstood, it would be clear that neither s.52(1A) r/w r.6 and Form2A nor s.102(1)(ca) of the Act nor the decisions in Association forDemocratic Reforms, People’s Union for Civil Liberties (PUCL) orKrishnamoorthy case can be stretched to such an extent that thefailure of the appellant to disclose his conviction for an offenceunder the Kerala Police Act for holding a dharna in front of thePanchayat office, is taken as a ground for declaring an electionvoid – District Court and the High Court were wrong in declaringthe election of the appellant to be void on the ground that the failureof the appellant to disclose in Form 2A, his conviction under theKerala Police Act amounted to ‘undue influence on the free exerciseof the electoral right’ and also a violation of ss.52(1A) r/w s.102(1)(ca) of the 1994 Act – Representation of the People Act, 1951 –ss.33A, 33B.

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[2022] 18 S.C.R.

AWords and Phrases – “fake”, “forgery” – Discussed.Allowing the appeals, the Court

HELD: 1.1 As seen from sub--section (1) of Section 102,the election of a candidate can be declared void, under fivedifferent contingencies. They are: (i) that the returned candidateBwas not qualified or was disqualified on the date of his election;(ii) that any corrupt practice has been committed by the returnedcandidate or his election agent or by any other person with theconsent of the returned candidate or his agent; (iii) that anynomination had been improperly rejected; (iv) that the detailsCfurnished by the elected candidate under sub-section (1A) ofSection 52 were fake; and (v) that the result of the election, insofarit concerns the returned candidate, has been materiallyaffected either by the improper acceptance of any nominationor by any corrupt practice committed in the interest of thereturned candidate by an agent other than his election agent orDby the improper reception, refusal or rejection of any vote or thereception of any vote which is void or by any non-compliancewith the provisions of this Act or of any Rules or orders madethereunder. Interestingly, sub--section (1) of Section 102 placesthe first four contingencies listed in the preceding paragraph,E{which are relatable to clauses (a), (b), (c) and (ca) of sub--section(1)} on a different footing than the fifth contingency {relatable toclause (d)}. The difference between clauses (a), (b), (c) and (ca)on the one hand and clause (d) of sub--section (1) of Section 102on the other hand is this. For setting aside an election under anyone or more of the contingencies mentioned in clauses (a), (b),F(c) and (ca), it is not necessary for the Court to find if the result ofthe election, insofar as it concerns the returned candidate, hasbeen materially affected or not. In contrast, for holding an electionto be void on the ground of improper acceptance of anynomination or the commission of a corrupt practice by any otherGagent, but in the interest of the returned candidate or the improperreception, refusal or rejection of any vote or the reception of anyvote which is void or non- compliance with the provisions of theAct, the Rules or orders, the Court must be satisfied that theresult of the election has been materially affected. [Paras 15-17][288-G-H; 289-A-E]H

1.2 In other words sub-section (1) of Section 102 places, (i)non- qualification/disqualification of the returned candidate; (ii)commission of any corrupt practice by the returned candidate orhis election agent or any other person with the consent of thereturned candidate or his election agent; (iii) the improperrejection of any nomination; and (iv) the furnishing of details underSection 52(1A) which are fake, on a much higher pedestal. If achallenge is made to the election of a candidate on any one ofthese four grounds, it is not necessary to show that the result ofthe election has been materially affected. Sub--section (1) ofSection 102 places, (i) improper acceptance of any nomination;(ii) commission of any corrupt practice in the interest of thereturned candidate, but by any agent other than his own electionagent; (iii) the improper reception, refusal or rejection of anyvote or the reception of any vote which is void; and (iv) thenon-compliance with the provisions of the Act or any Rules ororders made thereunder, in one group or class, where the Courtis obliged to look into an additional factor namely whether theresult of the election was materially affected due to any of thesefactors. The expression “corrupt practice” is defined in Section120 of the Act. [Paras 18-20][289-F-H; 290-A-B]

1.3 The argument of respondent No.1 is that the case wouldfall squarely under Section 102(1)(ca), which deals with thefurnishing of details under Section 52(1A), but which are fake.Alternatively, it is suggested that the case would fall under Section102(1)(b) which deals with the commission of any corrupt practiceby the returned candidate. Since the expression “corruptpractice” is defined in Section 120(2) to include ‘undue influencewith the free exercise of any electoral right’, it is argued by therespondent No.1 that the case may fall under Section 102(1)(b)also, in view of the law laid down in Krishnamoorthy. This Courthas its own doubts about the second limb of the argument of thesenior counsel for respondent No.1. The second limb of hisargument is that the failure to disclose correct information inForm 2A would tantamount to ‘undue influence on the freeexercise of the electoral right’, which comes within the definitionof the expression “corrupt practice” under section 120 of the AB

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AAct. Inspiration for this argument arises from the decision of thisCourt in Krishnamoorthy. [Paras 21, 22][295-C-F]

1.4 In so far as the Kerala Panchayat Raj Act is concerned,there is no necessity, after the amendment under Act 30 of 2005to take a circuitous route. Non-disclosure and false disclosureBcan straight away be traced to Section 52(1A) and 102(1)(ca) ofthe Act. Coming back to Section 102(1)(ca), it enables a Court todeclare the election of a returned candidate to be void, if thedetails furnished by him under Section 52(1A) are found to be“fake”. Interestingly the Statute uses the expression “fake” andnot expressions such as “false”, “suppression” etc. The wordC“fake” is not defined in the Act. Black’s Law Dictionary definesthe word “fake” to mean “to make or construct”. In P. RamanathaAiyar’s Advanced Law Lexicon, (Volume 2, 5th Edition, 2017),the entry relating to the word “fake” simply directs the reader tothe entry relating to the word “forgery”. Therefore, one has toDgo to the entry relating to the word “forgery” to understand themeaning of the word “fake”. The entry relating to the word“forgery” is quite long and it begins with a reference first toSection 463 of the IPC, 1860 which defines “forgery”. [Paras 28-30][303-B-F]

E1.5 A reading of the above entry in the Law Lexicon showsthat the word “forgery” has its origin in French, signifying “theframing or fashioning of a thing as the smith doth his work uponthe anvil.” Essentially “forgery” appears to include the falsemaking of any writing. Thus, it appears from the above that theelements of forgery are also identified as the ingredients of fakingFsomething. If the false making of an instrument is a commoningredient of “faking” and “forgery”, the non-disclosure in FormNo.2A of the conviction suffered by the appellant in the past, maycertainly come within Section 102(1)(ca). The reason for this isthat a person having criminal antecedents, poses himself to beGone without any such antecedent, when he fails to make a truedisclosure. In law, he passes off or comes out as a person withoutany criminal antecedent. Therefore, the failure to make a truedisclosure in Form 2A, regarding the past conviction, will certainly come within the meaning of the word ‘fake’, mentioned in clause(ca) of sub-section of Section 102. [Paras 31-33][306-C-F]

1.6 It may be true, as contended by the counsel for theappellant that Rule 6, in terms of which Form No.2A has beendrafted, is a subordinate legislation, which cannot go beyond thescope of Section 52(1A). But unfortunately for the appellant, Rule6 is not under challenge on the ground that it is ultra vires theAct. Therefore, the appellant cannot now be heard to contendthat Rule 6 cannot travel beyond or enlarge the scope of Section52(1A). If not for Rule 6 and Form No.2A, it is possible to acceptthe argument that the requirement under Section 52(1A) islimited to “the disclosure of involvement in a criminal case atthe time of filing of the nomination”. At the time of filing of thenomination, the appellant was not involved in any criminal case.We do not agree with the argument of the learned senior counselfor respondent No.1 that the phrase “involvement in a criminalcase” would include past conviction also, especially when Section52(1A) uses the rider “at the time of filing of the nomination”.[Paras 34-36][306-G-H; 307-A-B]

1.7 The words “involvement in a criminal case at thetime of filing of the nomination” would only mean (i) cases wherea criminal complaint is pending investigation/trial; (ii) cases wherethe conviction and/or sentence is current at the time of filing ofthe nomination; and (iii) cases where the conviction is thesubject matter of any appeal or revision pending at the time ofthe nomination. Therefore, in the absence of Rule 6 and FormNo.2A we could have easily concluded that the case of theappellant will not be covered by Section 52(1A) as he was notinvolved in any criminal case on the date of the nomination. ButRule 6 and Form No.2A taken together with what the law meansto be “fake”, makes things difficult for the appellant. ColumnNo.1 in Form 2A requires the details not only of the criminalcases pending trial before the Court but also the criminal casesin which the contestant was convicted. The contestant is requiredto furnish in Form No.2A, details regarding the cases in which heis punished, the case number, the Court, the offences for whichpunishment was awarded, the nature of the punishment and the AB

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Adetails regarding appeal or revision etc. Therefore, Form No.2Agoes far beyond the requirement of Section 52(1A). The appellantadmittedly failed to furnish details of his past conviction in FormNo.2A. Therefore, the ground on which his election was soughtto be declared void, falls squarely within Section 102(1)(ca) ofthe Act. But that is not all. The offences for which the appellantBwas eventually convicted, were under Section 38 read withSection 52 of the Kerala Police Act, 1960 (Act 5 of 1961).[Paras 37-40][307-C-H]

1.8 It could be seen from both the above provisions thatthe conviction of the appellant was actually for the disobedienceCof the directions issued by a police officer. This was admittedly inconnection with a dharna which the appellant staged in front ofthe Panchayat office, along with a group of his supporters.Therefore, the question that we are obliged to consider is as towhether the non-disclosure of the conviction for such offencesDwould also come within the purview of Section 102(1)(ca) of theAct. While offences under the Indian Penal Code or under specialenactments such as Prevention of Corruption Act, Arms Act andso on and so forth are substantive offences, the commission ofwhich may make a person a criminal, an offence under certainenactments such as Kerala Police Act are not substantiveEoffences. Just as strike is a weapon in the hands of the workmenand lock-out is a weapon in the hands of the employer underLabour Welfare legislations, protest is a tool in the hands of thecivil society and police action is a tool in the hands of theEstablishment. All State enactments such as Kerala Police Act,FMadras Police Act etc., are aimed at better regulation of the policeforce and they do not create substantive offences. This is whythese Acts themselves empower the police to issue necessarydirections for the maintenance of law and order and the violationof any of those directions is made a punishable offence underthese Acts. Once the object behind the provisions of the KeralaGPolice Act are understood, it would be clear that neither Section52(1A) read with Rule 6 and Form 2A nor Section 102(1)(ca) ofthe Act nor the decisions in Association for Democratic Reforms, People’s Union for Civil Liberties (PUCL) or Krishnamoorthycan be stretched to such an extent that the failure of theappellant to disclose his conviction for an offence under theKerala Police Act for holding a dharna in front of the Panchayatoffice, is taken as a ground for declaring an election void. [Paras43, 45 and 46][308-D-F; 309-F-H; 310-A-C]

1.9 It may be of interest to note that the Kerala Police Act,1960 repealed (i) the Travancore-Cochin Police Act, 1951; and(ii) the Madras District Police Act, 1859 as applied to the MalabarDistrict referred to in Section 5(2) of the States ReorganisationAct, 1956. It also repealed the provisions of (i) the Police Act,1861; and (ii) the Madras City Police Act, 1888, which were earlierextended to the Malabar District. Thus Kerala Police Act, 1960is actually the successor legislation of certain police enactmentsof the colonial era, whose object was to scuttle the democraticaspirations of the indigenous population. This aspect should bekept in mind before applying blindfold, the principle ‘what is saucefor the goose is sauce for the gander’. The District Court and theHigh Court were wrong in declaring the election of the appellantto be void on the ground that the failure of the appellant to disclosein Form 2A, his conviction under the Kerala Police Act amountedto ‘undue influence on the free exercise of the electoral right’and also a violation of Section 52(1A) read with Section 102(1)(ca) of the Kerala Panchayat Raj Act. Hence, the appeals areallowed, the impugned orders are set aside and the ElectionPetition filed by respondent No.1 is dismissed. No costs.[Paras 47, 48][310-C-F]

Union of India vs. Association for DemocraticReforms and Anr (2002) 5 SCC 294: [2002] 3 SCR696; People’s Union for Civil Liberties (PUCL) and Anr.vs. Union of India and Anr (2003) 4 SCC 399: [2003]2 SCR 1136; Krishnamoorthy vs.Sivakumar & Ors(2015) 3 SCC 467 : [2015] 4 SCR 987; ResurgenceIndia vs. Election Commission of India and Anr (2014)14 SCC 189: [2013] 9 SCR 360 – referred to.

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ACase Law Reference

From the Judgment and Order dated 30.10.2018 of the High Courtof Kerela at Ernakulam in C.R.P. No.513 of 2018 and Order datedC19.11.2018 in R.P. No.932 of 2018 in C.R.P. No.513 of 2018.

Ragenth Basant, Krishna Dev Jagarlamudi, Roopali Lakhotia, AjayKrishna, Advs. for the Appellant.

P. V. Surendranath, Sr. Adv., Subhash Chandran K. R., SawanDKumar Shukla, Ms. Krishna L. R., Ms. Resmitha R. Chandran, Advs.for the Respondents.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

ELeave granted.

2. Aggrieved by the Judgment passed by the High Court of Kerala,confirming an order passed by the Additional District Judge setting asidehis election as Councilor of Ward No.5 of Annamanada Gram Panchayath,in the elections held in November-2015, the elected candidate has comeFup with the above appeals.

3. We have heard the learned counsel for the respective parties.

4. The brief facts essential for the disposal of the above appealsare as follows:-

(i) On 5-11-2015, elections to the AnnamanadaGram Panchayath were held. Apart fromothers, the appellant and respondent No.1contested from Ward No.5.

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(ii) On 7.11.2015, the appellant was declared ashaving been elected from Ward No.5.

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(iii) Respondent No.1 filed an Election Petition onAthe file of the District Munsif Court, on 4.12.2015challenging the election of the appellant.

(iv) By a Judgment dated 19.11.2016, the ElectionPetition was dismissed by the District MunsifCourt, primarily on the ground that there wasBno prayer in the Election Petition to declare theelection of the appellant as void, on the groundsstipulated in Section 102 of the KeralaPanchayat Raj Act. There was actually a prayerfor cancelling the election held on 5.11.2015.

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(v) Aggrieved by the dismissal of the ElectionPetition, respondent No.1 filed an appeal in theCourt of the Additional District Judge. Theappeal was allowed by a Judgment dated18.06.2018 and the election of the appellant wasDdeclared as void on the ground that the appellantsuppressed in his nomination form, hisinvolvement in a criminal case and that thereforehe had committed a corrupt practice.

(vi) Aggrieved by the said judgment of the DistrictCourt, the appellant filed a revision petitionEbefore the High Court. The Revision Petitionwas dismissed by an Order dated 30.10.2018.The appellant filed a petition for review, but thesame was also dismissed by the High Court.Therefore, challenging the order passed in theFRevision Petition and the order passed in theReview Petition, the appellant has come up withtwo appeals.

5. The allegation that the appellant suppressed his involvement ina criminal case and thereby adopted a corrupt practice, arose undervery peculiar circumstances, which are as follows:- G

(i) On the allegation that on 20.09.2006, a groupof about 40 persons, which included theappellant herein, formed themselves into anunlawful assembly and committed criminal H

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trespass into the office compound of theAnnamanada Gram Panchayath and put up atemporary shed for conducting a dharna, 22persons were prosecuted before the JudicialFirst Class Magistrate Court, Chalakudy, foralleged offences under Sections 143, 283 and447 read with Section 149 of the Indian PenalCode. The appellant herein was cited asaccused No.1 and he was also prosecutedadditionally for an offence under Section 38 readwith Section 52 of the Kerala Police Act.

(ii) By a Judgment dated 07.06.2010 passed in CCNo.1606 of 2006, the trial Court convicted onlyA-1 and A-2. The appellant herein who wasA-1, was convicted for the offence underSection 143 IPC and sentenced to simpleimprisonment for a period of three monthstogether with a fine of Rs.2000/-. He was alsoconvicted for the offence under Section 283 andsentenced to pay a fine of Rs.200/-. For theoffence under Section 447, the appellant wasordered to undergo simple imprisonment for aperiod of one month and also to pay a fine ofRs.500/-. Additionally, the appellant wasconvicted for the offence under Section 52 ofthe Kerala Police Act and sentenced to pay afine of Rs.200/-.

(iii) The appellant as well as A-2 filed a statutoryappeal before the Sessions Court, Thrissur. Bya Judgment dated 17.01.2012, the appeal waspartly allowed and the conviction of the appellantfor the offences under Sections 143, 447 and283 read with Section 149 IPC was set aside.However, the conviction of the appellant hereinfor the offence under Section 38 read withSection 52 of the Kerala Police Act and thesentence of a fine of Rs.200/- imposed uponhim, was upheld by the First Appellate Court.

(iv) Since the appellant is involved in active electoralApolitics and his conviction by the criminal Courtrelated to a dharna organized by him, theappellant did not pursue the matter further beforethe High Court against a mere conviction underSection 38 read with Section 52 of the KeralaBPolice Act.(v)However, while filing his nomination in theelections to the Panchayat held in November-2015, the appellant failed to disclose, in FormNo.2A, under Rule 6 of the relevant Rules, hisC

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(v) However, while filing his nomination in theelections to the Panchayat held in November-2015, the appellant failed to disclose, in FormNo.2A, under Rule 6 of the relevant Rules, hisconviction under Section 38 read with Section52 of the Kerala Police Act, 1961. Therefore,his election was challenged by respondent No.1and the matter has now landed up before thisCourt.

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6. In the Kerala Panchayat Raj Act, 1994 (hereinafter referred toas “the Act”), an amendment was made in the year 2005, by Act 30 of2005 with effect from 22.08.2005. One of the amendments introducedby the said Act, was the insertion of sub-section (1A) in Section 52.Section 52 (1A) reads as follows:- EF

“52. Presentation of nomination paper andrequirements for a valid nomination.- (1A) Every candidate submitting nomination under sub-section (1) shall not be deemed to be qualified to beelected to fill that post unless he submits, along withsuch nomination, the details regarding hiseducational qualification, criminal cases in whichhe is involved at the time of submission ofnomination, property owned by him and other membersof his family, liabilities including arrears due from him toany Public Sector Undertaking or Government or LocalSelf Government Institutions and whether disqualifiesfor defection under the Kerala Local Authorities(Prohibition of Defection) Act, 1999 in the form andmanner as may be prescribed.”

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A7. Though the language employed in sub-section (1A) of Section52 mandated only the disclosure of the details regarding “the criminalcases in which he is involved at the time of submission of nomination”,the High Court invoked Rule 6 of the Kerala Panchayat Raj (Conduct ofElection) Rules, 1995 to hold that the suppression of any informationrelating to past conviction may also amount to suppression ofB“involvement in a criminal case”.

8. Rule 6 of the Kerala Panchayat Raj (Conduct of Election)Rules, 1995 reads as follows:- “6. Nomination of candidates.- (1) A candidate shallCbe nominated by means of a nomination paper in FormNo.2 and on an application in that behalf of an electorin the electoral roll of any constituency of concernedPanchayat, the Returning Officer shall provide him FormNO. 2 free of cost.

D(2) Every candidate shall make and subscribe an oathor affirmation before the Returning Officer or the personauthorized by the State Election Commission in the Formspecified in the First Schedule of the Act.

(2a) Every candidate shall submit before the ReturningEofficer, the details in form No. 2A along with thenomination paper.

(3) The Returning Officer shall, immediately on receiptof the nomination paper, number them serially in theorder of their presentation and shall note the date andFtime of its presentation in each nomination paper andshall issue a receipt attached to Form No. 2.”

9.6 reads as follows:

The relevant column of Form No. 2A referred to in Rule “1. The following criminal cases are pending againstGme for trial before the court/I have been convicted bythe court in criminal cases.

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(b) Those in which punished

H(i)Case number

(ii) Name and place of court

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(iii) Description of the offence forwhich punishment was awarded

(iv) Sections of the concerned Actunder which punishment wasBawarded

(v) Punishment awarded (period ofimprisonment/quantum of fineimposed) etc.

(vi) Date of sentence

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(vii) Details regarding appeal, revision

etc. filed against the sentence.”

10. The reasoning of the High Court was that any failure to disclosethe correct information regarding the past conviction by a criminal court,would tantamount to suppression of information relating to “involvementDin a criminal case”. The High Court reasoned (i) that insofar as electionsto the State Assemblies and Parliament are concerned, Section 33A ofthe Representation of the People Act, 1951 requires the disclosure ofonly those convictions where a sentence of imprisonment for one yearand more had been imposed; and (ii) but that the rules framed in KeralaErelating to the elections to Panchayats are more stringent, as they requirethe disclosure of any involvement in any criminal case. The High Courtopined that the Court was obliged to keep in mind the object of suchrequirement, in the light of the principles laid down by this Court in Unionof India vs. Association for Democratic Reforms and Anr.[1]andPeople’s Union for Civil Liberties (PUCL) and Anr. vs. Union ofFIndia and Anr.[2].

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11. Assailing the Judgment of the High Court, it was argued byShri Ragenth Basant, learned counsel appearing for the appellant thatthe non-disclosure of the conviction for a petty offence and that toorelating to the holding of a dharna on a political issue, cannot be termedas “undue influence” within the meaning of Section 120(2) of the Actand that, therefore, the election of the appellant ought not to have beendeclared void on the ground that it was vitiated by corrupt practice under G

1 (2002) 5 SCC 294

2 (2003) 4 SCC 399

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1 (2002) 5 SCC 294

2 (2003) 4 SCC 399

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ASection 102(1)(b) of the Act. It was also contended by the learned counselthat the reliance placed by the First Appellate Court on the decision ofthis Court in Krishnamoorthy vs. Sivakumar & Ors.[3] was misplaced.According to the learned counsel, the non-disclosure of criminalantecedents pertaining to heinous or serious offences involving corruptionor moral turpitude alone would tantamount to corrupt practice. It is alsoBfurther contended by the learned counsel for the appellant that therequirement of a disclosure in terms of Section 52(1A) relates only tothe involvement in a criminal case at the time of submission of thenomination and that therefore, the requirement under Rule 6 cannot beread as enlarging the scope of Section 52(1A). According to the learnedCcounsel for the appellant, even the ground under Section 102(1)(ca) ofthe Act cannot be invoked as the same is concerned with a situationwhere the details furnished by the elected candidate were shown to befake. Therefore, the learned counsel contended that the First AppellateCourt and the High Court were completely in error in declaring the electionof the appellant to be void.D

12. Supporting the judgment of the High Court it was contendedby Shri P.V. Surendranath, learned senior counsel for respondent No.1(Election Petitioner) that the deliberate suppression by the appellant, inthe nomination form filed in Form 2A, of his conviction for a criminaloffence, squarely fell within the definition of the expression “undueEinfluence” under Section 120(2) of the Act. According to the learnedsenior counsel for respondent No.1, the Court is obliged to keep in mindthe fact that Section 33B of the Representation of the People Act, 1951,was brought in by the Parliament to nullify the effect of the decision inAssociation for Democratic Reforms and Anr (supra). But SectionF33B was declared unconstitutional in People’s Union for Civil Liberties(supra). Relying upon the decision in Resurgence India vs. ElectionCommission of India and Anr.[4], it was contended by the learned seniorcounsel for respondent No.1 that the filing of an affidavit with blankparticulars has also been held to be a ground to reject the nominationpapers.G

13. We have carefully considered the rival contentions. Beforewe proceed to consider the rival contentions, we must point out that thecase on hand relates to an election to the Panchayat held in November- 3 (2015) 3 SCC 467H4 (2014) 14 SCC 189

2015. The term of office of the appellant is already over. But if theJudgment of the High Court is found to be correct, the appellant mighthave incurred a disqualification. Therefore, a decision on merits in thiscase is not a mere academic exercise and hence we have to deal withthe rival contentions.

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14. To test the correctness of the decision of the High Court, wemay have to begin our discussion from Section 102 of the Act. Section102 of the Act reads as follows:- B

“102. Grounds for declaring election to be void. -(1) Subject to the provisions of sub-section (2) if theCourt is of opinion –

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(a) that on the date of his election a returnedcandidate was not qualified, or was disqualified,to be chosen to fill the seat under this Act; or (b) that any corrupt practice has been committedby a returned candidate or his election agent orDby any other person with the consent of areturned candidate or his election agent; or

(c) that any nomination has been improperly rejected;or E

(ca) that the details furnished by the electedcandidate under sub-section (1A) of section 52were fake; or (d) that the result of the election, in so far as itconcerns a returned candidate, has beenmaterially affected –

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(i) by the improper acceptance ofany nomination, or

(ii) by any corrupt practice committed inthe interests of the returnedcandidate by an agent other thanhis election agent; or G

(iii) by the improper reception,refusal or rejection of any vote or H

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the reception of any vote which isvoid; or

(iv) by any non-compliance with theprovisions of this Act or of any rulesor orders made thereunder, theCourt shall declare that the electionof the returned candidate to bevoid.

(2) If in the opinion of the Court a returned candidatehas been guilty by an agent, other than his election agent,of any corrupt practice but the Court is satisfied. –

(a) that no such corrupt practice was committedat the election by the candidate or his electionagent, and every such corrupt practice wascommitted contrary to the orders, and withoutthe consent, of the candidate or his electionagent; (b) that the candidate and his election agent tookall reasonable means for preventing thecommission of corrupt practices at the election;and

(c) that in all other respects the election wasfree from any corrupt practice on the part ofthe candidate or any of this agents, then the Courtmay decide that the election of the returnedcandidate is not void.

Explanation.- In this section the term “agent” has thesame meaning as in section 120.”

15. As seen from sub-section (1) of Section 102, the election of acandidate can be declared void, under five different contingencies. Theyare: (i) that the returned candidate was not qualified or was disqualifiedon the date of his election; (ii) that any corrupt practice has beencommitted by the returned candidate or his election agent or by anyother person with the consent of the returned candidate or his agent;(iii) that any nomination had been improperly rejected; (iv) that the detailsfurnished by the elected candidate under sub-section (1A) of Section 52

were fake; and (v) that the result of the election, insofar it concerns thereturned candidate, has been materially affected either by the improperacceptance of any nomination or by any corrupt practice committed inthe interest of the returned candidate by an agent other than his electionagent or by the improper reception, refusal or rejection of any vote orthe reception of any vote which is void or by any non-compliance withthe provisions of this Act or of any Rules or orders made thereunder.

16. Interestingly, sub-section (1) of Section 102 places the firstfour contingencies listed in the preceding paragraph, {which are relatableto clauses (a), (b), (c) and (ca) of sub-section (1)} on a differentfooting than the fifth contingency {relatable to clause (d)}. Thedifference between clauses (a), (b), (c) and (ca) on the one hand andclause (d) of sub-section (1) of Section 102 on the other hand is this. Forsetting aside an election under any one or more of the contingenciesmentioned in clauses (a), (b), (c) and (ca), it is not necessary for theCourt to find if the result of the election, insofar as it concerns the returnedcandidate, has been materially affected or not.

17. In contrast, for holding an election to be void on the ground ofimproper acceptance of any nomination or the commission of a corruptpractice by any other agent, but in the interest of the returned candidateor the improper reception, refusal or rejection of any vote or the receptionof any vote which is void or non-compliance with the provisions of theAct, the Rules or orders, the Court must be satisfied that the result ofthe election has been materially affected.

18. In other words sub-section (1) of Section 102 places, (i) non-qualification/disqualification of the returned candidate; (ii) commissionof any corrupt practice by the returned candidate or his election agent orany other person with the consent of the returned candidate or his electionagent; (iii) the improper rejection of any nomination; and (iv) the furnishingof details under Section 52(1A) which are fake, on a much higherpedestal. If a challenge is made to the election of a candidate on any oneof these four grounds, it is not necessary to show that the result of theelection has been materially affected.

19. Sub-section (1) of Section 102 places, (i) improper acceptanceof any nomination; (ii) commission of any corrupt practice in the interestof the returned candidate, but by any agent other than his own electionagent; (iii) the improper reception, refusal or rejection of any vote or the AB

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Areception of any vote which is void; and (iv) the non-compliance withthe provisions of the Act or any Rules or orders made thereunder, in onegroup or class, where the Court is obliged to look into an additional factornamely whether the result of the election was materially affected due toany of these factors.

B20. The expression “corrupt practice” is defined in Section 120of the Act which reads as follows:

“120. Corrupt practices.- The following shall bedeemed to be corrupt practices for the purposes of thisAct –

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(1) “Bribery”, that is to say, -

(A) any gift, offer or promise by a candidate orhis agent or by any other person with the consent of acandidate or his election agent of any gratification, toany person whomsoever, with the object, directly orindirectly of inducing –

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(a) a person to stand or not to stand as, or towithdraw or not to withdraw from being a candidateat an election, or (b) an elector to vote or refrain from votingat an election, or as a reward to –

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(i) a person for having so stood, or not stood,or for having withdrawn or not having withdrawn hiscandidature; or

(ii) an elector for having voted or refrainedfrom voting; F

(B) the receipt of, or agreement to receive, anygratification, whether as a motive or a reward –

(a) by a person for standing or notstanding as, or for withdrawing or not withdrawingfrom being, a candidate; or G

(b) by any person whomsoever for himselfor any other person for voting or refraining from voting,or inducing or attempting to induce any elector to vote H

or refrain from voting, or any candidate to withdrawor not to withdraw his candidature.

Explanation.- For the purposes of this clausethe term ‘gratification’ is not restricted to pecuniarygratifications or gratifications estimable in money and itincludes all forms of entertainment and all forms ofemployment for reward but it does not include thepayment of any expenses bona fide incurred at, or forthe purpose of, any election and duly entered in theaccount of election expenses referred to in Section 85.

(2) “Undue influence”, that is to say, any director indirect interference or attempt to interfere on thepart of the candidate, or his agent, or of any other personwith the consent of the candidate or his election agent;with the free exercise of any electoral right:

Provided that –

(a) without prejudice to the generality of theprovisions of this clause any such person as is referredto therein who –

(i) threatens any candidate or any elector,or any person in whom a candidate or an elector isinterested, with injury of any kind including socialostracism and ex-communication ore x p u l s i o nfrom any caste or community; or

(ii) induces or attempts to induce a candidateor an elector to believe that he, or any person in whomhe is interested, will become or will be rendered anobject of divine displeasure or spiritual censure, shall bedeemed to interfere with the free exercise of theelectoral right of such candidate or elector within themeaning of this clause; (b) a declaration of public policy; or a promiseof public action, or the mere exercise of a legal rightwithout intent to interfere with an electoral right shallnot be deemed to be interference within the meaning ofthis clause.

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(3) The appeal by a candidate or his agent or byany other person with the consent of a candidate or hiselection agent to vote or refrain from voting for anyperson on the ground of his religion, race, caste,community or language or the use of, or appeal toreligious symbols or the use of, or appeal to nationalsymbols such as the national flag or the national emblemfor the furtherance of the prospects of the election ofthat candidate or for prejudicially affecting the electionof any candidate:

Provided that no symbol allotted under any rulesmade under this Act to a candidate shall be deemed tobe a religious symbol or a national symbol for thepurposes of this clause.

(4) The promotion of, or attempt to promote,feelings of enmity or hatred between different classesof the citizens of India on grounds of religion, race, caste,community, or language, by a candidate or his agent orany other person with the consent of a candidate or hiselection agent for the furtherance of the prospects ofthe election of that candidate or for prejudicially affectingthe election of any candidate.

(5) The publication by a candidate or his agent orby other person, with the consent of a candidate or hiselection agent, of any statement of fact which is false,and which he either believes to be false or does notbelieve to be true, in relation to the personal characteror conduct of any candidate, or in relation to thecandidature, or withdrawal, of any candidate being astatement reasonably calculated to prejudice theprospects of that candidate’s election.

(6) The hiring or procuring, whether on paymentor otherwise,of any vehicle or vessel by a candidateor his agent or by any other person with the consent ofa candidate or his election agent, or the use of suchvehicle or vessel for the free conveyance of any elector(other than the candidate himself, the members of his family or his agent) to or from any pollingstation provided under section 45:

Provided that the hiring of a vehicle or vessel byan elector or by several electors as their joint cost forthe purpose of conveying him or them to and from anysuch polling station or place fixed for the poll shall notbe deemed to be a corrupt practice under this clause ifthe vehicle or vessel so hired is a vehicle or vessel notpropelled by mechanical power:

Provided further that the use of any public transport,vehicle or vessel or any tramcar or railway carriage byany elector at his own cost for the purpose of going toor coming from any such polling station or place fixedfor the poll shall not be deemed to be a corrupt practiceunder this clause.

Explanation.–In this clause, expression ‘vehicle’means any vehicle used or capable of being used forthe purpose of road transport, whether propelled bymechanical power or otherwise and whether used fordrawing other vehicles or otherwise.

(7) The incurring or authorising of expenditure incontravention of section 85.

(8) The obtaining or procuring or abetting orattempting to obtain or procure by a candidate or hisagent or, by any otherperson with the consent of acandidate or his election agent, any assistance (otherthan the giving of vote) for the furtherance of theprospects of that candidate’s election, from any personin the service of a Panchayat or of Government, andbelonging to any of the following classes, namely: - (a) gazetted officers; (b) members of police forces;

(c) excise officers;

(d) revenue officers; and

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(e) such other class of persons in theservice of the Government as may beprescribed; Provided that where any person, in the service ofthe Government and belonging to any of the classesaforesaid, in the discharge or purported discharge ofhis official duty, makes any arrangements or providesany facilities or does any other act or thing, for, to, or inrelation to, any candidate or his election agent or anyother person acting with the consent of the candidate orhis election agent, (whether by reason of the office heldby the candidate or for any other reason), sucharrangements, facilities or act or thing shall not bedeemed to be assistance for the furtherance of theprospects of that candidates election.

(9) Booth capturing by a candidate or his agentor other person acting with the consent of the candidateor his election agent.

Explanation 1.– In this section the any expression“agent” includes an election agent, a polling agent andany person who is held to have acted as an agent inconnection with the election with the consent of thecandidate.

Explanation 2.– For the purposes of clause (8), aperson shall be deemed to assist in the furtherance ofthe prospects of a candidate’s election if he acts as anelection agent of that candidate.

Explanation 3.– For the purposes of clause (8),notwithstanding anything contained in any other law, thepublication in the Gazette of the appointment, resignation,termination of service, dismissal or removal from serviceof a person in the service of the Government or of aPanchayat shall be conclusive proof –

(i) of such appointment, resignation,termination of service, dismissal or removal from service,as the case may be, and

(ii) where the date of taking effect of suchappointment, resignation, termination of service,dismissal or removal from service as the case may be,is stated in such publication; also of the fact that suchperson was appointed with effect from the said date, orin the case of resignation, termination of service,dismissal or removal from service, such person ceasedto be in such service with effect from the said date.

Explanation 4.– For the purposes of clause (9),“booth capturing” shall have the same meaning as insection 137.”

21. The argument of respondent No.1 is that the case would fallsquarely under Section 102(1)(ca), which deals with the furnishing ofdetails under Section 52(1A), but which are fake. Alternatively, it issuggested that the case would fall under Section 102(1)(b) which dealswith the commission of any corrupt practice by the returned candidate.Since the expression “corrupt practice” is defined in Section 120(2) toinclude ‘undue influence with the free exercise of any electoral right’,it is argued by the respondent No.1 that the case may fall under Section102(1)(b) also, in view of the law laid down in Krishnamoorthy (supra)

22. We have our own doubts about the second limb of the argumentof the learned senior counsel for respondent No.1. The second limb ofhis argument is that the failure to disclose correct information in Form2A would tantamount to ‘undue influence on the free exercise of theelectoral right’, which comes within the definition of the expression“corrupt practice” under section 120 of the Act. Inspiration for thisargument arises from the decision of this Court in Krishnamoorthy(supra).

23. Interestingly, the decision of this Court in Krishnamoorthyarose out of a judgment of the Madras High Court, authored by one ofus (VRS,J.)[5]. It was a case where the elected candidate failed to disclosein the affidavit and declaration form accompanying the nomination, detailsregarding the criminal cases pending against him. Such details wererequired to be furnished in terms of the Notification issued by the StateElection Commission in exercise of the powers conferred by Articles243-K and 243-ZA of the Constitution, read with the relevant provisions 5 The judgment of the Madras High Court dated 15-6-2009 was affirmed by this court.

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Aof the various Tamilnadu State enactments dealing with local bodies.The election of the returned candidate was challenged in that case underthe provisions of Section 259 read with Section 260 of the Tamil NaduPanchayats Act, 1994. While section 259 of the Tamil Nadu Act dealtwith the grounds on which an election can be declared as void, Section260 of the Act defined what are corrupt practices. Section 259 of theBTamil Nadu Act is similar, though not in pari materia to Section 102 ofthe Kerala Act and Section 260 of the Tamil Nadu Act is similar toSection 120 of the Kerala Act. Section 259(1) of the Tamil Nadu Actand Section 102(1) of the Kerala Act are presented in a tabular columnso that the difference between them can be appreciated:

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Section 259 of Tamil Nadu Act Section 102 of Kerala Act 259. Grounds for declaring 102. Grounds for declaring election to elections to be voidbe void. – (1) Subject to the provisions of sub-(1) Subject to the provisions of sub-section section (2), if the District Judge is of (2) if the Court is of opinion – opinion – (a) that on the date of his election a D(a) that on the date of his election a returned candidate was not qualified, or returned candidate was not qualified was disqualified, to be chosen to fill the or was disqualified, to be chosen as a seat under this Act; or member under this Act, or, (b) that any corrupt practice has been (b) that any corrupt practice has committed by a returned candidate or his been committed by a returned election agent or by any other person with candidate or his agent or by any the consent of a returned candidate or his other person with the consent of a election agent; or Ereturned candidate or his agent, or (c) that any nomination has been (c) that any nomination paper has improperly rejected; or been improperly rejected, or (ca) that the details furnished by the (d) that the result of the election elected candidate under sub-section insofar as it concerns a returned (1A) of section 52 were fake; or candidate has been materially (d) that the result of the election, in so far affected - as it concerns a returned candidate, has (i) by the improper acceptance of any been materially affected – Fnomination, or (i) by the improper acceptance of any (ii) by any corrupt practice nomination, or committed in the interests of the (ii) by any corrupt practice committed in returned candidate by a person other the interests of the returned candidate than that candidate or his agent or a by an agent other than his election person acting with the consent of agent; or such candidate or agent, or (iii) by the improper reception, refusal (iii) by the improper acceptance or or rejection of any vote or the reception Grefusal of any vote or reception of any of any vote which is void; or vote which is void; or (iv) by any non-compliance with the (iv) by the non-compliance with the provisions of this Act or of any rules or provisions of this Act or of any rules orders made thereunder, the Court shall or orders made thereunder, the declare that the election of the returned Court shall declare the election of the candidate to be void. returned candidate to be void.

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24. The crucial difference between the Tamil Nadu Act and theKerala Act, is the insertion of clause (ca) in sub-section (1) of Section102. Sub-section (1A) of Section 52 and clause (ca) of sub-section (1)of Section 102 were inserted by Kerala Panchayat Raj (Amendment)Act, 30 of 2005. The decision in Krishnamoorthy arose at a time, placeand circumstance (i) when the disclosure regarding criminal antecedentswas made mandatory only under the Notifications of the State ElectionCommission; and (ii) the non-disclosure was not yet made a ground inthe Statute, for declaring the election as void. Therefore, the Court found(pro-actively), a provision already available in the Statute at that time,namely ‘undue influence in the free exercise of electoral right’ andheld that the non-disclosure had an undue influence on the free exerciseof choice of the voter.

25. The decision of the Madras High Court in Krishnamoorthy,traces the historical perspective of the election law relating to disclosureof criminal antecedents, as follows:

(i) In the year 1999, the Association for Democratic Reformsfiled a Writ Petition on the file of the Delhi High Court, seeking a directionto the Union of India to implement the recommendations made by theLaw Commission in its 170th Report and to make necessary changesunder Rule 4 of Conduct of Election Rules, 1961. One of therecommendations made by the Law Commission was for debarring acandidate from contesting an election, if charges have been framed againsthim by a Court in respect of certain offences and the necessity for thecandidates to furnish details of the criminal cases pending against them.Apart from the recommendations of the Law Commission, the Associationfor Democratic Reforms (hereinafter referred to as “ADR” for the sakeof brevity) also relied upon the Report of the Vohra Committee of theGovernment of India, Ministry of Home Affairs, which pointed out thenexus between politicians and those accused of criminal offences. Inthe light of the Reports of the Law Commission and the Vohra Committee,ADR sought, in the writ petition filed before the Delhi High Court, adirection to the Election Commission, to make it mandatory for everycandidate to provide information, by amending Forms 2-A to 2-Eprescribed under the Conduct of Election Rules, 1961.

(ii) Though the Delhi High Court held, by its judgment dated02.11.2000, that it is the function of the Parliament and not that of theCourt, to make necessary amendments in the Representation of the A

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APeople Act, 1951, the Delhi High Court nevertheless issued a directionto the Election Commission to secure to the voters, the followinginformation, from the contesting candidates:- “(a) Whether the candidate is accused of any offencepunishable with imprisonment and if so, the details; B

(b) The assets possessed by a candidate, his or herspouse and dependent relations;

(c) Facts giving insight into the candidate’s competence,capacity and suitability for acting as an elected member,including details of the educational qualifications; C

(d) Information considered necessary by the ElectionCommission for judging the capacity and capability ofthe political party fielding the candidate for election.”

(iii) The above directions issued by the Delhi High Court was onDthe basis that a citizen of the country, whether an elector or not, has afundamental right to receive information regarding the criminal activitiesof a candidate. The High Court took the view that for making a rightchoice, it is essential not to keep the antecedents of the candidate in thedark, as it will not be in the interest of democracy and the well being ofthe country.

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(iv) The judgment of the Delhi High Court was taken on appeal tothis Court by the Union of India and it was taken up along with a WritPetition filed by the People’s Union of Civil Liberties (referred to as“PUCL” in short), under Article 32 seeking certain similar directions.

(v) After hearing elaborate arguments, this Court framed twoFquestions, as arising for consideration in the matter and they are asfollows:- “(a) Whether the Election Commission is empoweredto issue directions, as ordered by the High Court?

(b) Whether a voter-a citizen of the country has a rightto get relevant information, such as the assets,qualifications and involvement in offences, of candidates,for being educated and informed for judging the suitabilityof a candidate contesting the election as MP or MLA?”

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(vi) After referring to various decisions, this Court summed upthe legal position in paragraph-46 of its decision. The contents ofparagraph-46 of the decision can be summarised in brief as follows:-

“(a) The jurisdiction of the Election Commission is wideenough to include all powers necessary for the smoothconduct of the elections, including the entire process ofelection consisting of several stages and embracingmany steps; (b) The limitation on the plenary character of power iswhen Parliament or State Legislature has made a validlaw. In case the law is silent, Article 324 is a reservoirof power. It is a residuary power and the phrase“superintendence, direction and control” appearingin Article 324 (1) should be construed liberallyempowering the Election Commission to issue orders;

(c) Fair election contemplates disclosure by the candidateof his past, so as to give a proper choice to the candidateaccording to his thinking and opinion. Even if thisstipulation is not very much effective for breaking avicious circle, it will be a step-in-aid for the voters notto elect law breakers as law makers; (d) To maintain the purity of elections and to bring abouttransparency, the Commission can ask details of theexpenditure incurred by political parties; (e) The right to get information in democracy isrecognised throughout as a natural right flowing fromthe concept of democracy; (f) If the field meant for Legislature and Executive isleft unoccupied, detrimental to public interest, theSupreme Court would have ample jurisdictionunder Article 32 read with 141 and 142 of theConstitution; (g) Voters’ right to know the antecedents including thecriminal past of the candidate contesting in the election,is much more fundamental and basic for the survival ofdemocracy.”

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A(vii) After summarising the law in paragraph-46, this Court issuedcertain directions in paragraph-48, which read as follows:- “48. The Election Commission is directed to call forinformation on affidavit by issuing necessary order inexercise of its power under Article 324 of theConstitution of India from each candidate seekingelection to Parliament or a State Legislature as anecessary part of his nomination paper, furnishing therein,information on the following aspects in relation to his/her candidature:

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(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.

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(2) Prior to six months of filing of nomination, whetherthe candidate is accused in any pending case, of anyDoffence punishable with imprisonment for two years ormore, and in which charge is framed or cognizance istaken 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 ofdependants.

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(4) Liabilities, if any, particularly whether there are anyover dues of any public financial institution or governmentdues.

(5) The educational qualifications of the candidate.”F

(viii) Following the above decision, the Election Commission ofIndia decided to amend Forms 2-A to 2-E appended to the Conduct ofElection Rules, 1961 and approached the Government of India seekingsuitable Amendments. But the ECI was informed by the Governmentthat steps were being taken in consultation with all political parties.GTherefore, finding that the time limit fixed by the Supreme Court in theabove case was running out, the ECI issued an order bearing No.3/ER/2002/JS-II/Vol-III dated 28.6.2002 under Article 324 of the Constitution.

(ix) However, almost simultaneously with the issue of the aboveorder of the ECI, the President of India promulgated an Ordinance knownHas “Representation of the People (Amendment) Ordinance 2002”. The

validity of the Ordinance was challenged by the People’s Union of CivilLiberties and a few others under Article 32. During the pendency of theproceedings, the Ordinance was repealed and the Representation of thePeople (Third Amendment) Act, 2002 was notified with retrospectiveeffect. By the Amendment, Sections 33-A and 33-B were inserted tothe Act and they read as follows:- “33-A. Right to information. — (1) A candidate shall,apart from any information which he is required tofurnish, under this Act or the rules made thereunder, inhis nomination paper delivered under sub-section (1)of Section 33, also furnish the information as towhether —

(i) he is accused of any offence punishable withimprisonment for two years or more in a pending case inwhich a charge has been framed by the Court ofcompetent jurisdiction;

(ii) he has been convicted of an offence other than anyoffence referred to in sub-section (1) or sub-section (2),or covered in sub-section (3), of Section 8 and sentencedto 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 Officerthe nomination paper under sub-section (1) of Section33, also deliver to him an affidavit sworn by the candidatein a prescribed form verifying the information specifiedin sub-section (1).

(3) The Returning Officer shall, as soon as may be afterthe furnishing of information to him under sub-section(1), display the aforesaid information by affixing a copyof the affidavit, delivered under sub-section (2), at aconspicuous place at his Office for the information ofthe electors relating to a constituency for which thenomination paper is delivered.

33-B. Candidate to furnish information only under theAct and the rules .— Notwithstanding anything containedin any judgment, decree or order of any Court or anydirection,order or any other instruction issued by the A

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Election Commission, no candidate shall be liable todisclose or furnish any such information, in respect ofhis election, which is not required to be disclosed orfurnished under this Act or the rules made thereunder.”

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Since the ordnance under challenge was replaced byBthe Act,during the pendency of the proceedings, thepleadings and the prayer in the writ petitions wereamended so as to confine the challenge to Section 33-B.”

(x) Ultimately, a three Member Bench of this Court, in PeoplesCUnion of Civil Liberties, held Section 33-B of the Representation ofthe People Act, 1951, brought forth by the Third Amendment Act, 2002,to be unconstitutional.

(xi) After this court declared Section 33-B to be unconstitutional,the Election Commission of India issued revised orders dated 27.03.2003Drequiring every candidate, at the time of filing his nomination paper forany election to the Council of States, House of the People, LegislativeAssembly of a State or the Legislative Council of a State having such aCouncil, to furnish full and complete information in regard to the mattersspecified by this Court, in an affidavit, the format whereof was annexedas Annexure-I to the order.E

26. Despite the judgment of this Court in PUCL, Section 100 ofthe Representation of the People Act,1951 was not amended so as themake the non-disclosure or false disclosure, as one of the grounds fordeclaring an election as void. Section 100 (1) continues to contain onlyfour grounds for declaring an election void. These four grounds areFcomparable to clauses (a), (b), (c) and (d) of Section 102 of the KeralaPanchayat Raj Act, 1994. The special feature of the Kerala Act is theinsertion of clause (1-A) in Section 52 and the insertion of clause (ca) insub-section (1) of Section 102.

27. In the Representation of the People Act, 1951 as well as theGTamil Nadu Panchayats Act (out of which the decision inKrishnamoorthy arose) the candidate challenging an election had torely upon subordinate legislation to seek a declaration that the electionwas void. Non-disclosure/false disclosure was not made available inthose Statutes themselves as one of the grounds for declaring an electionvoid. Therefore, the Court had to fall back upon the Rules and the OrdersH

of the Election Commission and bring those violations within the scopeof “undue influence” leading to “corrupt practice” which is availableas one of the grounds.

28. In so far as the Kerala Panchayat Raj Act is concerned, thereis no necessity, after the amendment under Act 30 of 2005 to take acircuitous route. Non-disclosure and false disclosure can straight awaybe traced to Section 52(1A) and 102(1)(ca) of the Act.

29. Coming back to Section 102(1)(ca), it enables a Court to declarethe election of a returned candidate to be void, if the details furnished byhim under Section 52(1A) are found to be “fake”. Interestingly the Statuteuses the expression “fake” and not expressions such as “false”,“suppression” etc. The word “fake” is not defined in the Act. Black’sLaw Dictionary defines the word “fake” to mean “to make orconstruct”. The Oxford Dictionary defines “fake” as follows:

“fake – º%adj. not genuine, º%n. a person or thing thisis not genuine, º% v.1. forge or counterfeit (something).

- %pretend to feel or suffer from (an emotion or illness).

2. (fake someone out) N. Amer, informal trick ordeceive someone.

-DERIVATIVES faker n. fakery n.”

30. In P. Ramanatha Aiyar’s Advanced Law Lexicon, (Volume2, 5[th] Edition, 2017), the entry relating to the word “fake” simply directsthe reader to the entry relating to the word “forgery”. Therefore, onehas to go to the entry relating to the word “forgery” to understand themeaning of the word “fake”. The entry relating to the word “forgery”is quite long and it begins with a reference first to Section 463 of theIPC, 1860 which defines “forgery”. The entire Entry reads as follows:- “Forgery. “Forgery” whoever makes any falsedocument or false electronic record, or part of adocument or electronic record, with intent to causedamage or injury, to the public or to any person, or tosupport any claim or title, or to cause any person topart with property, or to enter into any express orimplied contract, or with intent to commit fraud orthat fraud may be committed commits forgery. [IPC(45 of 1860), S. 463]

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“A man’s signature of his own name may amount toforgery.” [IPC (45 of 1860), S. 464, Expln. 1]

“While it is true that there is a distinction between fraudand forgery, and forgery contains some elements thatare not included in fraud, forgeries are a species offraud. In essence, the crime of forgery involves themaking, altering, or completing of an instrument bysomeone other than the ostensible maker or draweror an agent of the ostensible maker or drawer.” 37CJS Forgery S. 2, at 66 (1997).

The fraudulent making or altering of an instrument thatapparently creates or alters a legal liability of another.The offence of making a false instrument so that it canbe accepted as genuine.

The fraudulent imitation of a document or the writing orsignature of a signatory in order to pass it off as writtenby another.

The fraudulent making or alteration of any record, deed,writing, instrument, register, Stamp, etc. to the prejudiceof another man’s right. (4 Comm. 247.) A false makingof any written instrument for the purpose of fraud ordeceit; including every alteration of or addition to atrue instrument. (2 East’s P.Cc. 19, C. 1. 49. Tomlin)

Forgery has its origin in the French word ‘forger’ whichsignifies:

“….to frame or fashion a thing as the smith doth hiswork upon the anvil. And it is used in our law for thefradulent making and publishing of false writings tothe prejudice of another man’s right. (Termes de laLey).

In WEBSTER’S Comprehensive Dictionary,International Edn., ‘forgery’ is defined as :

“The act of falsely making or materially altering, withintent to defraud; any writing which, if genuine, mightbe of legal efficacy or the foundation of a legalliability.”

RAVI NAMBOOTHIRI v. K.A. BAIJU & ORS.

[V. RAMASUBRAMANIAN, J.]

This definition as adopted in Rembert v. State, 25 AMRep. 639. In another case, namely State v. Phelps,34 AM Dec 672, it was laid down that forgery is thefalse making of any written instrument, for the purposeof fraud or deceit. This decision appears to be basedon the meaning of forgery as set out in Tomlin’s.Indian Bank v. Satyam Fibres (India) (P) Ltd., AIR1996 SC 2592.

Forgery is the false making or materially altering withintent to defraud, of any writing which, if genuine,might apparently be of legal efficacy, or the foundationof a legal liability. (2 Bishop Cr. L. sect. 523; Rembertv. State, 25 Am. Rep. 639).

OTHER DEFINITIONS. “The false making of anywritten, instrument, for the purpose of fraud or deceit.”(State v. Phelps, 34 Am. Dec. 672.) “The fraudulentmaking or alteration of a written instrument to theprejudice of the rights of another.” “The fraudulentmaking of a false writing, which, genuine, wouldapparently be of some legal efficacy.”

FORGERY, UTTERING FORGED INSTRUMENT,FALSE PRETENCES DISTINGUISHED. Wherethe false pretence made use of to obtain money orproperty is a written instrument, the resulting crime issometimes forgery or the uttering of a forgedinstrument, and sometimes obtaining property by falsepretence. If the instrument used is false in itself andis one which if genuine would create some right orliability, obtaining property on the faith of it is forgeryor the uttering of a forged instrument as the case maybe. [People v. Peacock, 6 Con. (NY) 72]

Forgery constitutes fraud, and no legal title passes tothe transferee. [Thorappa Devanappa v. Umedmalji,AIR 1924 Bom 205, 87 IC 226, 25 Bom LR 604; BrijBasi v. Moti Ram, AIR 1982 All 323; Banku BehariSikdar v. Secretary of State for India in Council,(1909) ILR 36 Cal 239; Karachi Bank v. KodumalKalumal, AIR 1923 Sind 54; Firm Kalka Pd Ram A

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Charan v. L Kunwar Lal Thapper, AIR 1957 All104; Kodumal Kalumal v. Karachi Bank Ltd., AIR1921 Sind 172; Mahabir Prasad Bubna v. UnionBank of India, AIR 1992 Cal 270]

A

Bankers are specially protected under special conditionsagainst claims based on forged documents [See theNegotiable Instruments Act, 1881, S. 85]

B

Since forging prejudices the person whose signature hasbeen forged, no action is maintainable on thepromissory note even against the real executant ofthe note. [Satya Narayan Tewari v. Sital Missir, AIR1934 Rang 345, 153 IC 631]”

C

31. A reading of the above entry in the Law Lexicon shows thatthe word “forgery” has its origin in French, signifying “the framing or”fashioning of a thing as the smith doth his work upon the anvil.DEssentially “forgery” appears to include the false making of any writing.

32. Thus, it appears from the above that the elements of forgeryare also identified as the ingredients of faking something.

33. If the false making of an instrument is a common ingredient of“faking” and “forgery”, the non-disclosure in Form No.2A of theEconviction suffered by the appellant in the past, may certainly comewithin Section 102(1)(ca). The reason for this is that a person havingcriminal antecedents, poses himself to be one without any suchantecedent, when he fails to make a true disclosure. In law, he passesoff or comes out as a person without any criminal antecedent. Therefore,Fthe failure to make a true disclosure in Form 2A, regarding the pastconviction, will certainly come within the meaning of the word ‘fake’,mentioned in clause (ca) of sub-section (1) of Section 102.

34. It may be true, as contended by Shri Ragenth Basant, learnedcounsel for the appellant that Rule 6, in terms of which Form No.2A hasbeen drafted, is a subordinate legislation, which cannot go beyond theGscope of Section 52(1A). But unfortunately for the appellant, Rule 6 isnot under challenge on the ground that it is ultra vires the Act. Therefore,the appellant cannot now be heard to contend that Rule 6 cannot travelbeyond or enlarge the scope of Section 52(1A).

H

35. If not for Rule 6 and Form No.2A, it is possible to accept theargument that the requirement under Section 52(1A) is limited to “thedisclosure of involvement in a criminal case at the time of filing ofthe nomination”. At the time of filing of the nomination, the appellantwas not involved in any criminal case.

36. We do not agree with the argument of Shri P.V. Surendranath,learned senior counsel for respondent No.1 that the phrase “involvementin a criminal case” would include past conviction also, especially whenSection 52(1A) uses the rider “at the time of filing of the nomination”.

37. In our considered view, the words “involvement in a criminalcase at the time of filing of the nomination” would only mean (i)cases where a criminal complaint is pending investigation/trial; (ii) caseswhere the conviction and/or sentence is current at the time of filing ofthe nomination; and (iii) cases where the conviction is the subject matterof any appeal or revision pending at the time of the nomination.

38. Therefore, in the absence of Rule 6 and Form No.2A wecould have easily concluded that the case of the appellant will not becovered by Section 52(1A) as he was not involved in any criminal caseon the date of the nomination. But Rule 6 and Form No.2A taken togetherwith what the law means to be “fake”, makes things difficult for theappellant.

39. We have extracted in paragraph 9 above, the relevant portionof Form No.2A. Column No.1 in Form 2A requires the details not onlyof the criminal cases pending trial before the Court but also the criminalcases in which the contestant was convicted. The contestant is requiredto furnish in Form No.2A, details regarding the cases in which he ispunished, the case number, the Court, the offences for which punishmentwas awarded, the nature of the punishment and the details regardingappeal or revision etc. Therefore, Form No.2A goes far beyond therequirement of Section 52(1A). The appellant admittedly failed to furnishdetails of his past conviction in Form No.2A. Therefore, the ground onwhich his election was sought to be declared void, falls squarely withinSection 102(1)(ca) of the Act.

40. But that is not all. The offences for which the appellant waseventually convicted, were under Section 38 read with Section 52 of theKerala Police Act, 1960 (Act 5 of 1961).

A

B

C

D

E

F

G

H

A41. Section 38 of the Kerala Police Act, 1960 reads as follows:

“38. Persons bound to conform to reasonabledirections of police.— (1) All persons shall be boundto conform to the reasonable direction of a police officergiven in fulfilment of any of the duties enjoined on, or inexercise of any of the powers vested in him under thisAct.

B

(2) A police officer may restrain or remove any personresisting or refusing or omitting to conform to any suchdirection as aforesaid.”

C42. Section 52 of the Kerala Police Act,1960 reads as follows:

“52. Penalty for failure to conform to lawful andreasonable directions of police officers.— Everyperson who disobeys any direction given by a policeofficer under this Act or rules made thereunder shall onDconviction be liable to fine not exceeding two hundredrupees.”

43. It could be seen from both the above provisions that theconviction of the appellant was actually for the disobedience of thedirections issued by a police officer. This was admittedly in connectionEwith a dharna which the appellant staged in front of the Panchayatoffice, along with a group of his supporters. Therefore, the question thatwe are obliged to consider is as to whether the non-disclosure of theconviction for such offences would also come within the purview ofSection 102(1)(ca) of the Act.

F

F44. As we have seen from the way in which the law developedfrom the decision in Association for Democratic Reforms (supra), theprimary object of compelling the disclosure of criminal antecedents ofcandidates contesting the elections, is to decriminalize politics and tomake the voters aware of the choice that they have. This is why thisCourt was very careful in formulating the principles of law, in paragraphG94 of the decision in Krishnamoorthy (supra). Paragraph 94 of thedecision in Krishnamoorthy (supra) may be usefully extracted asfollows:- “94. In view of the above, we would like to sum up ourconclusions:

H

94.1. Disclosure of criminal antecedents of acandidate, especially, pertaining to heinous or seriousoffence or offences relating to corruption or moralturpitude at the time of filing of nomination paper asmandated by law is a categorical imperative.

94.2. When there is non-disclosure of theoffences pertaining to the areas mentioned in thepreceding clause, it creates an impediment in the freeexercise of electoral right.

94.3. Concealment or suppression of thisnature deprives the voters to make an informed andadvised choice as a consequence of which it would comewithin the compartment of direct or indirect interferenceor attempt to interfere with the free exercise of the rightto vote by the electorate, on the part of the candidate.

94.4. As the candidate has the specialknowledge of the pending cases where cognizance hasbeen taken or charges have been framed and there is anon-disclosure on his part, it would amount to undueinfluence and, therefore, the election is to be declarednull and void by the Election Tribunal under Section100(1)(b) of the 1951 Act.

94.5. The question whether it materially affectsthe election or not will not arise in a case of this nature.”

45. While offences under the Indian Penal Code or under specialenactments such as Prevention of Corruption Act, Arms Act and so onand so forth are substantive offences, the commission of which maymake a person a criminal, an offence under certain enactments such asKerala Police Act are not substantive offences. Just as strike is a weaponin the hands of the workmen and lock-out is a weapon in the hands ofthe employer under Labour Welfare legislations, protest is a tool in thehands of the civil society and police action is a tool in the hands of theEstablishment. All State enactments such as Kerala Police Act, MadrasPolice Act etc., are aimed at better regulation of the police force andthey do not create substantive offences. This is why these Acts themselvesempower the police to issue necessary directions for the maintenance A

B

C

DE

F

G

H

Aof law and order and the violation of any of those directions is made apunishable offence under these Acts.

46. Once the object behind the provisions of the Kerala PoliceAct are understood, it would be clear that neither Section 52(1A) readwith Rule 6 and Form 2A nor Section 102(1)(ca) of the Act nor theBdecisions in Association for Democratic Reforms, People’s Unionfor Civil Liberties (PUCL) or Krishnamoorthy can be stretched tosuch an extent that the failure of the appellant to disclose his convictionfor an offence under the Kerala Police Act for holding a dharna in frontof the Panchayat office, is taken as a ground for declaring an electionvoid.C

47. It may be of interest to note that the Kerala Police Act, 1960repealed (i) the Travancore-Cochin Police Act, 1951; and (ii) the MadrasDistrict Police Act, 1859 as applied to the Malabar District referred to inSection 5(2) of the States Reorganisation Act, 1956. It also repealed theprovisions of (i) the Police Act, 1861; and (ii) the Madras City PoliceDAct, 1888, which were earlier extended to the Malabar District. ThusKerala Police Act, 1960 is actually the successor legislation of certainpolice enactments of the colonial era, whose object was to scuttle thedemocratic aspirations of the indigenous population. This aspect shouldbe kept in mind before applying blindfold, the principle ‘what is sauceEfor the goose is sauce for the gander’.

48. Therefore, we are of the considered view that the DistrictCourt and the High Court were wrong in declaring the election of theappellant to be void on the ground that the failure of the appellant todisclose in Form 2A, his conviction under the Kerala Police Act amountedFto ‘undue influence on the free exercise of the electoral right’ andalso a violation of Section 52(1A) read with Section 102(1)(ca) of theKerala Panchayat Raj Act. Hence, the appeals are allowed, the impugnedorders are set aside and the Election Petition filed by respondent No.1 isdismissed. No costs.

GDivya Pandey and Anurag Bhaskar(Assisted by : Rahul Kumar, LCRA)

Appeals allowed.

H