During the past few months, the
Apex court of this country has given some very important judgments relating to
electoral law and electoral reforms. To be precise, there have been five
important verdicts relating to election law in the past few months.
2. C.E.C.
v. Jan Chowkidar
5. Resurgence
India v. Election Commission of India & Another
In the present article, I am
going to talk about the last case in the abovementioned list. Resurgence India v. ECI is a landmark judgment in its own manner. This case does
not have any new issue involved. It involves effectuating meaningful
interpretation of two earlier landmark judgments (Union of India v. Association
for Democratic Reforms and Another[1]
and People’s Union for Civil Liberties (PUCL) and Another v. Union of India
& Another[2]).
It also involved issuing of direction to the Returning Officers to make sure
that the affidavits filed by the contestants in the election are not blank or
incomplete.
In Union of India v. Association for
Democratic Reforms and Another, the court issued directions to the ECI
to call for information “from each candidate
seeking election to the Parliament or a State Legislature as a necessary part
of his nomination paper furnishing therein information
relating to his conviction/acquittal/discharge in any criminal offence in the
past, any case pending against him of any offence punishable with imprisonment
for 2 years or more, information regarding assets (movable, immovable, bank
balance etc.) of the candidate as well as of his/her spouse and that of
dependants, liability, if any, and the educational qualification of the
candidate.”
In People’s Union for Civil
Liberties (PUCL) and Another v. Union of India & Another, the court
reaffirmed the abovementioned decision and also held that “the direction to reject the
nomination papers for furnishing wrong information or concealing material
information and verification of assets and liabilities by means of a summary
inquiry at the time of scrutiny of the nominations cannot be justified.”
Brief
Facts
1. That the
petitioner is an NGO working for social awakening, social empowerment, human rights
and dignity.
2. That the
petitioner made a representation to the Election Commission of India regarding
large number of non-disclosures in the affidavits filed by the contestants in
the State of Punjab and poor level of scrutiny by the Returning Officers.
3. That the
Election Commission of India expressed its inability in rejecting the
nomination papers of the candidates solely due to furnishing of
false/incomplete information in the affidavits in view of the judgment in
People’s Union for Civil Liberties (PUCL).
4. That the
petitioner preferred this petition for the issuance of a writ of mandamus to
make it compulsory for the Returning Officers to ensure that the affidavits
filed by the contestants should be complete in all respects and to reject those
nomination papers which are accompanied by incomplete/blank affidavits.
Election
Commission of India
The ECI said that they are
bound by the PUCL judgment that stated that the Returning Officers cannot reject the nomination
papers solely due to furnishing of false/incomplete/blank information in the
affidavits signed by the candidates. However, ECI opined that incomplete nomination
papers must be rejected and sought clarification in this regard.
Union
of India
Union of India raised an
interesting plea in this regard asking how the Court will be justified in
accepting the nomination paper with false information but rejecting the
nomination paper for filing affidavit with particulars left blank and hence
prayed that both the abovesaid situations must be treated at par.
Resurgence
India
In contrast to the Union of
India’s plea for treating such a situation at par with filing false affidavit
and to prosecute the candidate under Section 125A of the Representation of the
People Act, 1951, the petitioner sought mere rejection of nomination paper in
such a situation when the particulars are left blank.
Discussion
Before moving any further, the
court asked to consider few provisions of the Representation of the People Act,
1951(refer to the footnote)[3].
In the case of Shaligram
Shrivastava vs. Naresh Singh Patel[4],
it was held that “the Returning Officers
derive the power to reject the nomination papers on the ground that the contents
to be filled in the affidavits are essential to effectuate the intent of the provisions of the RP Act and as a
consequence, leaving the affidavit blank will in fact make it impossible for
the Returning Officer to verify whether the candidate is qualified or
disqualified which indeed will frustrate
the object behind filing the same.”
In Union of India v. Association for
Democratic Reforms and Another, the Court held that a voter has the
elementary right to know full particulars of a candidate who is to represent
him in the Parliament and such right to get information is universally
recognized natural right flowing from the concept of democracy and is an
integral part of Article 19(1) (a) of the Constitution. It was further held
that the voter's speech or expression in case of election would include casting
of votes, that is to say, voter speaks
out or expresses by casting vote. Also, keeping this background in mind, an
amendment introducing Section 33A was brought in the Representation of the
People Act, 1951.
Because of all such developments, presently every
candidate must to file an affidavit with relevant information with regard to
their criminal antecedents, assets and liabilities and educational
qualifications.
Held
The court said that “the
ultimate purpose of filing of affidavit along with the nomination paper is to
effectuate the fundamental right of the citizen under Article 19(1)(a) of the
Constitution of India. The citizens are required to have the necessary
information at the time of filing of the nomination paper in order to make a
choice of their voting. When a candidate files an affidavit with blank
particulars, it renders the affidavit itself nugatory.”
The court further said that it is the duty of the Returning Officer to check whatever the
information required is fully furnished at the time of filing of affidavit
with the nomination paper since such information is very vital for giving
effect to the ‘right to know’ [Under
article 19 (1) (a) and Section 33A of the RP Act] of the citizens. Hence, if a
candidate fails to fill the blanks even after a reminder by the Returning Officer,
such nomination paper is fit to be rejected. However, such a power should be
exercised sparingly and with utmost caution.
The court also held that PUCL judgment does not in any
manner come in the way of the Returning Officer to reject the nomination paper
when the affidavit is filed with blank particulars. The PUCL judgment merely
said that the direction to reject the nomination paper for furnishing wrong
information or concealing material information and providing for a summary
enquiry at the time of scrutiny of the nominations, cannot be justified because
many times the candidate concerned may
be handicapped to rebut the allegation then and there. If sufficient time is
provided, he may be able to produce proof to contradict the objector's version.
Such was the reasoning of the Court and it
never contemplated or barred the Returning Officer to reject the nomination
paper on account of filing affidavit with particulars left completely blank.
Regarding the Union of India’s contention that both the
situation of filing an affidavit with wrong information and filing an affidavit
with blank particulars be treated at par and such candidates must be
prosecuted under Section 125A of the Representation of the People Act, 1951,
the court said that if wrong information is supplied, it would certainly
attract Section 125A of the RP Act. However,
in case of blank particulars, the nomination paper of the candidate itself is
being rejected and there is no reason that would suggest that such candidate be
penalized again for the same act by prosecuting him/her. He has already been
punished by rejecting his nomination paper.
Hence, the candidate must take the minimum effort to
explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to
leave the particulars blank.
Opinion
I think this case was the need of the hour. It dealt with
a very limited issue of rejecting the nomination paper of a candidate by the
Returning Officer on the ground of leaving the particulars blank in the
affidavit filed by him/her. A lot of other issues were also raised in this case
but the court restricted its scope and did not go for Judicial Adventurism. It
dealt with a very small point and explained how such a point violates the
present law.
During the past few months, there have been many landmark
judgments relating to the electoral law of this country. Some of those
judgments have been criticized for Judicial Adventurism. However, I firmly
believe that this is not one of those judgments. The RP Act as well as the
preceding judgments in this regard never contemplated that the particulars in
the affidavit be left blank and still, the returning officer are bound to accept such
affidavits. In the instant case, the court has merely clarified the situation and gave effect to the
provisions of the RP Act.
I feel that it is very reasonable to ask from the
candidates to at least write ‘NIL’ or ‘Not Applicable’ or ‘Not Known’ in the
columns. This would not only save the precious time of the returning officer
but would also strengthen the right of the citizens to have the necessary
information at the time of filing of the nomination paper in order to make an
informed choice while voting. When a candidate files an affidavit with blank
particulars, it renders the affidavit itself nugatory or insignificant.
[3] “33A. Right to information.—(1) A candidate shall, apart from any
information which he is required to furnish, under this Act or the rules made
thereunder, in his nomination paper delivered under sub-section (1) of section
33, also furnish the information as to whether –(i) he is accused of any
offence punishable with imprisonment for two years or more in a pending case in
which a charge has been framed by the court of competent jurisdiction; (ii) he
has been convicted of an offence [other than any offence referred to in
sub-section (1) or sub-section (2), or covered in sub-section (3), of section
8] and sentenced to imprisonment for one year or more.
(2) The candidate or his
proposer, as the case may be, shall, at the time of delivering to the returning
officer the nomination paper under sub-section (1) of section 33, also deliver
to him an affidavit sworn by the candidate in a prescribed form veryfying the
information specified in sub-section (1).
(3) The returning officer
shall, as soon as may be after the furnishing of information to him under
sub-section (1), display the aforesaid information by affixing a copy of the
affidavit, delivered under sub-section (2), at a conspicuous place at his
office for the information of the electors relating to a constituency for which
the nomination paper is delivered.
36. Scrutiny of nomination.—(1) On the date fixed for the scrutiny of
nominations under section 30, the candidates, their election agents, one
proposer of each candidate, and one other person duly authorized in writing by
each candidate, but no other person, may attend at such time and place as the
returning officer may appoint; and the returning officer shall give them all
reasonable facilities for examining the nomination papers of all candidates
which have been delivered within the time and in the manner laid down in
section 33.
(2) The returning officer
shall then examine the nomination papers and shall decide all objections which
may be made to any nomination and may, either on such objection or on his own
motion, after such summary inquiry, if any, as he thinks necessary, reject any
nomination on any of the following grounds:—(a) that on the date fixed for the
scrutiny of nominations the candidate either is not qualified or is
disqualified for being chosen to fill the seat under any of the following
provisions that may be applicable, namely: Articles 84, 102, 173 and 191, Part
II of this Act, and sections 4 and 14 of the Government of Union Territories
Act, 1963 (20 of 1963); or (b) that there has been a failure to comply with any
of the provisions of section 33 or section 34 ; or (c) that the signature of
the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in
clause (b) or clause (c) of sub-section (2) shall be deemed to authorize the
rejection of the nomination of any candidate on the ground of any irregularity
in respect of a nomination paper, if the candidate has been duly nominated by
means of another nomination paper in respect of which no irregularity has been
committed.
(4) The returning officer
shall not reject any nomination paper on the ground of any defect which is not
of a substantial character.
(5) The returning officer
shall hold the scrutiny on the date appointed in this behalf under clause (b)
of section 30 and shall not allow any adjournment of the proceedings except
when such proceedings are interrupted or obstructed by riot or open violence or
by causes beyond his control:
Provided that in case an
objection is raised by the returning officer or is made by any other person the
candidate concerned may be allowed time to rebut it not later than the next day
but one following the date fixed for scrutiny, and the returning officer shall
record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer
shall endorse on each nomination paper his decision accepting or rejecting the
same and, if the nomination paper is rejected, shall record in writing a brief
statement, of his reasons for such rejection.
(7) For the purposes of this
section, a certified copy of an entry in the electoral roll for the time being
in force of a constituency shall be conclusive evidence of the fact that the
person referred to in that entry is an elector for that constituency, unless it
is proved that he is subject to a disqualification mentioned in section 16 of
the Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the
nomination papers have been scrutinized and decisions accepting or rejecting
the same have been recorded, the returning officer shall prepare a list of
validly nominated candidates, that is to say, candidates whose nominations have
been found valid, and affix it to his notice board.
125A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected
in an election,- (i) fails to furnish information relating to sub-section (1)
of section 33A; or (ii) gives false information which he knows or has reason to
believe to be false; or (iii) conceals any information, in his nomination paper
delivered under sub-section (1) of section 33 or in his affidavit which is
required to be delivered under sub-section (2) of section 33A, as the case may
be, shall, notwithstanding anything contained in any other law for the time
being in force, be punishable with imprisonment for a term which may extend to
six months, or with fine, or with both.”
[4] (2003)
2 SCC 176
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