# 4 S.C.R. 987 KRISHNAMOORTHY v. SIVAKUMAR & ORS

- **Citation:** [2015] 4 S.C.R. 987
- **Court:** Supreme Court of India
- **Decided:** 2015-02-05
- **Case number:** Civil Appeal No.14 78 of 2015
- **Bench:** Dipak Misra, Prafulla C. Pant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4-s-c-r-987-krishnamoorthy-v-sivakumar-ors-30734
- **Pages:** 99

## Headnote

A
B
Tamil Nadu Panchayats Act, 1994 - s.260 - 'Undue
influence' -
Whether failure to disclose criminal cases C
pending against a candidate would come within the concept
of 'undue influence' and thereby corrupt practice - Plea of
candidate that he having disclosed the main crime number,
his failure to mention other ancillary and connected cases, · 0
would not amount to undue influence - Held: A voter has
a fundamental right to know the antecedents of the
candidate contesting election as it is an essential
concomitant for a free and fair election - Disclosure of
crin:inal antecedents, especially pertaining to heinous E
crimes or crimes relating to corruption or moral turpitude
at the time of filing nomination paper is imperative -
Concealment or suppression thereof since deprives the
voters to make an informed or advised choice and hence
would amount to interference or attempt to interference with
F
free exercise of right to vote - As the candidate has special
knowledge of the pending cases against him, nondisclosure thereof would amount to undue influence which
is a facet of corrupt practice - Thus, the High Court was
justified in declaring the election null and void on the ground G
of corrupt practice - Representation of People Act .. 1951 -
ss.33A, 100(1)(b), 123(2) and 171-C - Conduct of Election
Rules 1861 - rr.4A, 41(2), 41(3) and 49-0.
987
H
988
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
Election Laws:
'Disqualification' and 'Corrupt practice' - Distinction
between - Discussed.
8
'Undue influence' and 'proper influence' - Distinction
between.
Dismissing the appeal, the Court
HELD: 1. A voter has a fundamental right to know
C about the candidates contesting the elections as that
is essential and a necessary concomitant for a free and
fair election. It is the first step. The voter is entitled to
make a choice after coming to know the antecedents
of a candidate a requisite for making informed choice.
D The voter's fundamental right to know the antecedents
of a candidate is independent of statutory requirement
under the election law, for a voter is first a citizen of
this country and apart from statutory rights, he has the
fundamental right to know and be informed. Such a
E right to know is conferred by the Constitution. [para
27) [1022-D-F]
Union of India Vs. Association for Democratic Reforms,
2002(3) SCR 696 = 2002 (5) SCC 294; People's Union for
F Civil Liberties (PUCL) & Another V. Union of India CJnd
Another 2003 (2) SCR 1136 = 2003 (4) SCC 399;
Resurgence India V. Election Commission of India & Anr.
2013 (9) SCR 360 = 2014 (14) SCC 189; Shaligram
Shrivastava V. Naresh Singh Patel 2002 (5) Suppl. SCR
G 585 = 2003 (2) SCC 176; People's Union for Civil Liberties
and Another V. Union of India and Another 2013 (12) SCR
283 = 2013 (10) sec 1 - relied on.
Vineet Narain V. Union of India 1997 (6) Suppl. SCR
H 595 = 1998 (1) SCC 226, Kihoto Hollohan V. Zachil/hu 1992
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
989
(1) SCR 686 = 1992 (2) Suppl. SCC 651; Mohinder Singh A
Gill II. Chief Election Commissioner 1978 (2) SCR 272 =
1978 (1) SCC 405, Kanhiya Lal Omar II. R.K. Trivedi 1985
(3) Suppl. SCR 1 = 1985 (4) SCC 628, Common Cause
II. Union of India 1996 (3) SCR 1208 = 1996 (2) SCC 752;
Narasimha Rao II. State (CB//SPE) 1998 (2) SCR 870 = B
1998 (4) SCC 626; Lily Thomas II. Speaker of Lok Sabha
1993 (1) Suppl. SCR 791 = 1993 (4) SCC 234 - referred
to.
2. In_ a constitutional democracy, any kind of C
criminalisation of politics is an extremely lamentable
situation. It is an anathema to the sanctity of
democracy. The criminalisation creates a concavity in
the heart of democracy and has the potentiality to
paralyse, comatose and strangulate the purity of the D
system. [para 31] [1025-B-C]
Manoj Narula V. Union of India 2014 (9) SCC 1;
Subramanian Swamy II. CBI 2014 (8) SCC 682 - followed
E
S. Raghbir Singh Gill II. S. Gurcharan Singh Tohra
1980 SCR 1302 = 1980 Suppl. SCC 53, S.S. Bola II. B.D.
Sardana 1997 (2) Suppl. SCR 507 = 1997 (8) SCC 522

## Text

_Characters 0–39,906 of 159,942. This is a partial read: ask again with offset=39906 for what follows._

(2015] 4 S.C.R. 987
KRISHNAMOORTHY
V.
SIVAKUMAR & ORS.
(Civil Appeal No.14 78 of 2015)
FEBRUARY 05, 2015
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
A
B
Tamil Nadu Panchayats Act, 1994 - s.260 - 'Undue
influence' -
Whether failure to disclose criminal cases C
pending against a candidate would come within the concept
of 'undue influence' and thereby corrupt practice - Plea of
candidate that he having disclosed the main crime number,
his failure to mention other ancillary and connected cases, · 0
would not amount to undue influence - Held: A voter has
a fundamental right to know the antecedents of the
candidate contesting election as it is an essential
concomitant for a free and fair election - Disclosure of
crin:inal antecedents, especially pertaining to heinous E
crimes or crimes relating to corruption or moral turpitude
at the time of filing nomination paper is imperative -
Concealment or suppression thereof since deprives the
voters to make an informed or advised choice and hence
would amount to interference or attempt to interference with
F
free exercise of right to vote - As the candidate has special
knowledge of the pending cases against him, nondisclosure thereof would amount to undue influence which
is a facet of corrupt practice - Thus, the High Court was
justified in declaring the election null and void on the ground G
of corrupt practice - Representation of People Act .. 1951 -
ss.33A, 100(1)(b), 123(2) and 171-C - Conduct of Election
Rules 1861 - rr.4A, 41(2), 41(3) and 49-0.
987
H
988
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
Election Laws:
'Disqualification' and 'Corrupt practice' - Distinction
between - Discussed.
8
'Undue influence' and 'proper influence' - Distinction
between.
Dismissing the appeal, the Court
HELD: 1. A voter has a fundamental right to know
C about the candidates contesting the elections as that
is essential and a necessary concomitant for a free and
fair election. It is the first step. The voter is entitled to
make a choice after coming to know the antecedents
of a candidate a requisite for making informed choice.
D The voter's fundamental right to know the antecedents
of a candidate is independent of statutory requirement
under the election law, for a voter is first a citizen of
this country and apart from statutory rights, he has the
fundamental right to know and be informed. Such a
E right to know is conferred by the Constitution. [para
27) [1022-D-F]
Union of India Vs. Association for Democratic Reforms,
2002(3) SCR 696 = 2002 (5) SCC 294; People's Union for
F Civil Liberties (PUCL) & Another V. Union of India CJnd
Another 2003 (2) SCR 1136 = 2003 (4) SCC 399;
Resurgence India V. Election Commission of India & Anr.
2013 (9) SCR 360 = 2014 (14) SCC 189; Shaligram
Shrivastava V. Naresh Singh Patel 2002 (5) Suppl. SCR
G 585 = 2003 (2) SCC 176; People's Union for Civil Liberties
and Another V. Union of India and Another 2013 (12) SCR
283 = 2013 (10) sec 1 - relied on.
Vineet Narain V. Union of India 1997 (6) Suppl. SCR
H 595 = 1998 (1) SCC 226, Kihoto Hollohan V. Zachil/hu 1992
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
989
(1) SCR 686 = 1992 (2) Suppl. SCC 651; Mohinder Singh A
Gill II. Chief Election Commissioner 1978 (2) SCR 272 =
1978 (1) SCC 405, Kanhiya Lal Omar II. R.K. Trivedi 1985
(3) Suppl. SCR 1 = 1985 (4) SCC 628, Common Cause
II. Union of India 1996 (3) SCR 1208 = 1996 (2) SCC 752;
Narasimha Rao II. State (CB//SPE) 1998 (2) SCR 870 = B
1998 (4) SCC 626; Lily Thomas II. Speaker of Lok Sabha
1993 (1) Suppl. SCR 791 = 1993 (4) SCC 234 - referred
to.
2. In_ a constitutional democracy, any kind of C
criminalisation of politics is an extremely lamentable
situation. It is an anathema to the sanctity of
democracy. The criminalisation creates a concavity in
the heart of democracy and has the potentiality to
paralyse, comatose and strangulate the purity of the D
system. [para 31] [1025-B-C]
Manoj Narula V. Union of India 2014 (9) SCC 1;
Subramanian Swamy II. CBI 2014 (8) SCC 682 - followed
E
S. Raghbir Singh Gill II. S. Gurcharan Singh Tohra
1980 SCR 1302 = 1980 Suppl. SCC 53, S.S. Bola II. B.D.
Sardana 1997 (2) Suppl. SCR 507 = 1997 (8) SCC 522,
State of U.P. II. Jai Bir Singh 2005 (1) Suppl. SCR 20 =
2005 (5) SCC 1, Reliance Natural Resources Ltd., V.
F
Reliance Industries Ltd. 2010 (5) SCR 704 = 2010 (7) SCC
1, Ram Jethmalani II. Union of India 2011 (8 ) SCR 725
= 2011 (8) SCC 1 and State of Maharahtra II. Saeed Sohail
Sheikh 2012 (11) SCR 916 = 2012 (13) SCC 192; Dinesh
Trivedi II. Union of India 1997 (3) SCR 93 = 1997 (4) SCC G
306, Anukul Chandra Pradhan II. Union of India and others
1997 (1) Suppl. SCR 641 = 1997 (6) SCC 1; Niranjan
Hemchandra Sashittal II. State of Maharashtra 2013 (4)
SCR 767 = 2013 (4) SCC 642 - relied on.
H
990
SUPREME COURT REPORTS
(2015] 4 S.C.R.
A
3. From the provisions u/ss 259 and 260 of Tamil
Nadu Panchayats Act, 1994, it is clear that concept of
'undue influence' as is understood in the context of
Section 123(2) of the Representation of People Act,
1951 has been adopted as it is a deemed conception
B for all purposes. Thus, a candidate is bound to provide
the necessary information at the time of filing
nomination paper and for the said purpose, the
Returning Officer can compel the candidate to furnish
the relevant information and if a candidate, files an
C affidavit with blank particulars would render the
affidavit nugatory. If a candidate fails to fill the blanks
even after the reminder by the Returning Officer, the
nomination paper is liable to be rejected. [para 39]
D [1033-G-H; 1034-A, s~o1
Resurgence India V Election Commission of India &
Anr. 2013 (9) SCR 360 = 2014 (14) SCC 189 - relied on.
4.1 The right to contest an election is neither a
E fundamental right nor a common law right. The right
to contest in an election is a plain and simple statutory
right and the election of an elected candidate can only
be declared null and void regard being had to the
grounds provided in the statutory enactment. And. the
F ground of 'undue influence' is a part of corrupt
practice. [para 54 and 55] [1053-D-E; 1054-E-F]
4.2 The first part of Section 123(2) is not restricted
or controlled by the provisos. The provisos to Section
G 123(2) of 1951 Act are, as has been postulated in the
provision itself, without prejudice to the generality of
the said clause. [para 51-52] [1050-C-D; 1051-F]
4.3 As is clear from s.100 of 1951 Act, if the
H corrupt practice is proven, the Election Tribunal or the
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
991
High Court is bound to declare the election of the A
returned candidate to be void. [para 57] [1056-B]
M. Narayan Rao V. G. Venkata Reddy & Others 1977
(1) SCR 490 = 1977 (1) sec 771 - relied on.
4.4 Section 100(1)(d)(ii) stipulates that where the B
High Court is of the opinion that the result of the
election has been materially affected by any corrupt
practice, committed in the interest of the returned
candidate by an agent, other than his election agent, C
the High Court shall declare the election of the returned
candidate to be void. This stands in contra distinction
to Section 100(1 )(b) which provides that election of a
returned candidate shall be declared to be void if
corrupt practice has been committed by a returned D
candidate or his election agent or by any other person
with his consent or with the consent of the returned
candidate or his election agent. Thus, if the corrupt
practice is pruven on the foundation of Section
100(1)(b), the High Court is not to advert to the facet E
whether result of the election has been materially
affected, which has to be necessarily recorded as a
finding of a fact for the purpose of Section 100(1)(d)(ii).
If the corrupt practice, as envisaged under Section
100(1)(b) is established, the election has to be declared F
void. No other condition is attached to it. [para 58 and
61] [1056-C-F; 1058-C-D]
Mahadeo V Babu Udai Pratap Singh & Ors. 1966 SCR
564=1966 AIR 824; Baburao Patel & Ors. V Dr. Zakir G
Hussain & Ors. 1968 SCR 133 = 1968 AIR 904; Jeet
Mohinder Singh V Harminder Singh Jassi 1999 (4) Suppl.
SCR 33 = 1999 (9) SCC 386; Govind Singh V Harchand
Kaur 2010 (14) SCR 348 = 2011 (2) SCC 621; Mangani
H
992
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A Lal Manda/ V Bishnu Deo Bhandari 2012 (1) SCR 527 =
2012 (3) SCC 314; Shambhu Prasad Sharma V.
Charandas Mahant 2012 (6 ) SCR 356 = 2012 (11) SCC
390; S.K. Singh V. V. Giri 1971 (2) SCR 197 = (1970) 2
SCC 567; Bachan Singh V Prithvi Singh 1975 (3) SCR
B 439 = (1975) 1 SCC 368; Ziyauddin Burhanuddin Bukhari
v. Brijmohan Ramdass Mehra 1975 (0) Suppl. SCR 281 =
(1976) 2 SCC 17; Aad Lal v. Kanshi Ram (1980) 2 SCC
350; Om Prakash & Ors. V Union of India & Ors. (1970)
3 SCC 942; V. T Khanzode and Ors. V. Reserve Bank of
C India and Anr. 1982 (3) SCR 411 = 1982 (2) SCC 7; D.K.
Trivedi & Sons V. State of Gujarat 1986 SCR 479 = 1986
Suppl. SCC 20; State of J&K V. Lakhwinder Kumar 2013
(2) SCR 1070 = 2013 (6) SCC 333; BSNL V. Telecom
0
Regulatory Authority of India 2013 (12) SCR 999 = 2014
(3 ) SCC 222; Javed V. State of Haryana 2003 (1) Suppl.
SCR 947 = 2003 (8) SCC 369; Manohar Joshi V. Nitin
Bhaurao Patil and Anr. 1995 (6) Suppl. SCR 421= 1996
(1) SCC 169; Indira Nehru Gandhiv. Raj Narain 1976 SCR
E 347 =1975 Suppl. SCC 1, TN. Seshan, CEC of India v.
Union of India 1995 (2) Suppl. SCR 106 = 1995 (4) SCC
611 - relied on.
Samant N. Balkrishna and Anr. V. George Fernandez
F and Others 1969 (3) SCR 603 = 1969 (3) SCC 238; Ram
Dial v. Sant Lal 1959 AIR 855 = 1959 Suppl. SCR 748
R.B. Surendra Narayan Sinha V Amulyadhone Roy 1940
IC 30; Linge Gowda V Shivananjappa (1953) 6 Ele LR
288 (Ele. Tri Bangalore), Mast Ram V S. Iqbal Singh (1953)
G 6 Ele LR 288 (Ele. Tri Bangalore) - referred to.
5. The sanctity of the electoral process imperatively
commands that each candidate owes and is under an
obligation that a fair election is held. Undue influence
H should not be employed to enervate and shatter free
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
993
exercise of choice and selection. No candidate is A
entitled to destroy the sacredness of election by
indulging in undue influence. The basic concept of
"undue influence" relating to an election is voluntary
interference or attempt to interfere with the free
exercise of electoral right. The voluntary act also B
encompasses attempts to interfere with the free
exercise of the electoral right. Legitimate canvassing
would not amount to undue influence; and that there
is a distinction between "undue influence" and "proper c
influence". The former is totally unacceptable as it
impinges upon the voter's right to choose and affects
the free exercise of the right to vote. [para 75] [1074F-H; 1075-A-B]
People's Union for Civil Liberties (PUCL) & Another V
D
Union of/ndia and Another 2003 (2) SCR 1136 = 2003 (4)
SCC 399; Union of India Vs. Association for Democratic
Reforms, 2002(3) SCR 696 = 2002 (5) SCC 294;
Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh
E
2001 (2) SCR 118 = 2001 (3) sec 594- relied on.
6. Free exercise of any electoral right is paramount.
If there is any direct or indirect interference or attempt
to interfere on the part of the candidate, it amounts to
undue influence. A voter is entitled to have an informed F
•
choice. A voter who is not satisfied with any of the
candidates, can opt not to vote for any candidate. The
requirement of a disclosure, especially the criminal
antecedents, enables a voter to have an informed and
G
instructed choice. If a voter is denied of the
acquaintance to the information and deprived of the
condition to be apprised of the entire gamut of criminal
antecedents relating to heinous or serious offences or
offence of corruption or moral turpitude, the exercise H
994
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A of electoral right would not be an advised one. He will
be exercising his franchisee with the misinformed
mind. That apart, his fundamental right to know also
gets nullified. The attempt has to be perceived as
creating an impediment in the mind of a voter, who is
B expected to vote to make a free, informed and advised
choice. The same is sought to be scuttled at the very
commencement. Election covers the entire process
from the issue of the notification till the declaration of
the result. [para 78] [1076-A-F]
c
Hari Vishnu Karnath V Ahmad lshaque and others
1955 AIR 233 = 1955 SCR 1104, Election Commission of
India V Shivaji 1988 (1) SCR 878 = 1988 (1) SCC 277;
VS. Achuthanandan V. P.J. Francis and Another 1999 (2)
D SCR 99 = 1999 (3) SCC 737 - relied on.
7. As per the Circular No. 3/ER/2013/SDR Vol.V
dated 3.3.2014 issued by the Election Commission to
the Chief Electoral Officers of all States and Union
E Territories relating to affidavits filed by candidates and
dissemination thereof, the affidavit sworn by the
candidate has to be put in public domain so that the
electorate can know. If they know the half truth, it is
more dangerous, for the electorate are denied of the
F information which is within the special knowledge of
the candidate. When something within special
knowledge is not disclosed, it tantamounts to fraud.
[para 82-83] [1079-F-G; 1080-E-F]
G
S.P. Chengalvaraya Naidu (Dead) By LRs V.
Jagannath (Dead) By LRs & Others 1993 (3) Suppl. SCR
422 = 1994 (1) sec - relied on.
8. Disclosure of criminal antecedents of a
H candidate, especially, pertaining to heinous or serious
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
995
offence or offences relating to corruption or moral A
turpitude at the time of filing of nomination paper as
mandated by law is a categorical imperative. When
there is non-disclosure of the offences pertaining to
these areas, it creates an impediment in the free
exercise of electoral right. [para 85] [1084-F-H; 1086B
A]
9. Concealment or suppression of this nature
deprives the voters to make an informed and advised
choice as a consequence of which it would come C
within the compartment of ·direct or indirect
interference or attempt to interfere with the free
exercise of the right to vote by the electorate, on the
part of the candidate. [para 85] [1085-A-B]
10. As the candidate has the special knowledge of
the pending cases where cognizance has been taken
D
or charges have been framed and there is a nondisclosure on his part, it would amount to undue
influence and, therefore, the election is to be declared E
null and void by the Election Tribunal under Section
100(1 )(b) of the 1951 Act. (para 85] [1085-C-D]
11. It is necessary to clarify here that if a candidate
gives all the particulars and despite that he secures the F
votes that will be an informed, advised and free
exercise of right by the electorate. That is why there
is a distinction between a disqualification and the
corrupt practice. In an election petition, the election
petitioner is required to assert about the cases in which G
the successful candidate is involved as per the rules
and how there has been non-disclosure in the affidavit.
Once that is established, it would amount to corrupt
practice. This has to be determined in an election
H
996
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A petition by the Election Tribunal. [para 83] [1082-A-C]
12. In the present case, the appellant was involved
in 8 cases relating to embezzlement. The State Election
Commission had issued a Notification. The factum of
B suppression of the cases relating to embezzlement has
been established. The High Court was justified in
declaring the election as null and void on the ground
of corrupt practice. [para 84-85] [1082-D; 1084-C-E]
c
Charan Lal Sahu V. Giani Zail Singh and Anr. 1984
(2) SCR 6 = 1984 (1) SCC390; Indira Nehru Gandhi v. Raj
Narain 1976 SCR 347 = 1975 Suppl. SCC 1, T.N. Seshan,
CEC of India v. Union of India 1995 (2) Suppl. SCR 106 =
1995 (4) SCC 611 and Ku/dip Nayarv. Union of India 2006
D (5) Suppl. SCR 1 = 2006 (7) SCC 1 - referred to.
Case Law Reference
2002(3) SCR 696
relied on
E
2003 (2) SCR 1136
relied on
1997 (6) Suppl. SCR 595 referred to
1992 (1) SCR 686
referred to
F
1978 (2) SCR 272
referred to
1985 (3) Suppl. SCR 1 referred to
1996 (3) SCR 1208
referred to
G
1998 (2) SCR 870
referred to
2013 (9) SCR 360
relied on
2002 (5) Suppl. SCR 585 relied on
H
para 8
para 8
para 12
para 12
para 12
para 12
para 12
para 12
para 20
para 20
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
997
2013 (12) SCR 283
relied on
para 24
A
1993 (1) Suppl. SCR 791 referred to
para 28
1980 SCR 1302
relied on
para 30
1997 (2) Suppl. SCR 507 relied on
para 30
B
2005 (1) Suppl. SCR 20 relied on
para 30
2010 (5) SCR 704
relied on
para 30
2011 (8 ) SCR 725
relied on
para 30
c
2012 (11) SCR 916
relied on
para 30
1997 (3) SCR 93
relied on
para 30
1997 (1) Suppl. SCR 641 relied on
para 30
D
2014 (9) sec 1
followed
para 33
2013 (4) SCR 767
relied on
para 34
E
2014 (8) sec 682
followed
para 35
1966 SCR 564
relied on
para 43
1968 SCR 133
relied on
para 43
F
1999 (4) Suppl. SCR 33 relied on
para 43
2010 (14) SCR 348
relied on
para 43
2012 (1) SCR 527
relied on
para 43
G
2012 (6) SCR 356
relied on
para 43
1959 Suppl. SCR 748
relied on
para 43
1940 IC 30
referred to
para 46
H
998
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
(1953) 6 Ele LR 288
referred to
para 46
1971 (2) SCR 197
relied on
para 47
1975 (3) SCR 439
relied on
para 48
B
1975 (0) Suppl. SCR 281 relied on
para 49
(1980) 2 sec 350
relied on
para 50
(1970) 3 sec 942
relied on
para 51
c
1982 (3) SCR 411
relied on
para 50
1986 SCR 479
relied on
para 52
2013 (2) SCR 1070
relied on
para 52
D
2013 (12) SCR 999
relied on
para 52
2003 (1) Suppl. SCR 947 relied on
para 54
1977 (1) SCR 490
relied on
para 57
E
1969 (3) SCR 603
relied on
para 59
1995 (6) Suppl. SCR 421 relied on
para 59
1984 (2) SCR 6
referred to
para 64
F
1976 SCR 347
relied on
para 73
1995 (2) Suppl. SCR 106 relied on
para 73
2006 (5) Suppl. SCR 1
relied on
para 73
G
2001 (2) SCR 118
relied on
para 77
1955 SCR 1104
relied on
para 78
H
1988 (1) SCR 878
relied on
para 78
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
999
1999 (2) SCR 99
relied on
1993 (3) Suppl. SCR 422 relied on
para 78
para 83
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1478 of 2015
From the Judgment and Order dated 15.06.2009 of the
High Court of Judicature at Madras in C.R.P. (NPD) No.
3076 of 2008.
A
B
Maninder Singh (A.C.), Harish N. Salve (A.C.}, C
Subramonium Prasad, V. Mohana, B. Balaji, R. Rakesh
Sharma, Meha Agarwal, R. Anand Padmanabhan, J.
Amritha Sarayoo, Pramod Dayal, R. Neduraman, P. Soma
Sundaram, P.V. Yogeswaran for the appearing parties.
D
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. In a respectable and elevated
constitutional democracy purity of election, probity in
governance, sanctity of individual dignity, sacrosanctity of E
rule of law, certainty. and sustenance of independence of
judiciary, efficiency and acceptability of bureaucracy,
credibility of institutions, integrity and respectability of those
who run the institutions and prevalence of mutual deference
among all the wings of the State are absolutely significant,
F
in a way, imperative. They are not only to be treated as
essential concepts and remembered as glorious precepts
but also to be practised so that in the conduct of every
individual they are concretely and fruitfully manifested. The
crucial recognised ideal which is required to be realised is G
eradication of criminalisation of politics and corruption in
public life. When criminality enters into the grass-root level
as well as at the higher levels there is a feeling that
'monstrosity' is likely to wither away the multitude and
H
1000
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A eventually usher in a dreadful fear that would rule supreme
creating an incurable chasm in the spine of the whole
citizenry. In such a situation the generation of today, in its
effervescent ambition and volcanic fury, smothers the
hopes, aspirations and values of tomorrow's generation and
B contaminate them with the idea to pave the path of the
past, possibly thinking, that is the noble tradition and
corruption can be a way of life and one can get away with
it by a well decorated exterior.
But, an intervening and
pregnant one, there is a great protector, and an unforgiving
C one, on certain occasions and some situations, to interdict
- 'The law', the mightiest sovereign in a civilised society.
2. The preclude, we are disposed to think, has become
a necessity, as, in the case at hand, we are called upon to
D decide, what constitutes "undue influence" in the context
of Section 260 of Tamil Nadu Panchayats Act, 1994 (for
short 'the 1994 Act') which has adopted the similar
expression as has been used under Section 123 (2) of the
Representation of People's Act, 1951 (for brevity 'the 1951
E Act') thereby making the delineation of great significance,
for our interpretation of the aforesaid words shall be
applicable to election law in all spheres.
3. The instant case is a case of non-disclosure of full
F particulars of criminal cases pending against a candidate,
at the time of filing of nomination and its eventual impact
when the election is challenged before the election tribunal.
As the factual score is exposited the appellant was elected
as the President of Thekampatti Panchayat, Mettupalayam
G Taluk, Coimbatore District in the State of Tamil Nadu in the
elections held for the said purpose on 13.10.2006. The
validity of the election was called in question on the sole
ground that he had filed a false declaration suppressing
the details of criminal cases pending trial against him and,
H
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
1001
[DIPAK MISRA, J.]
therefore, his nomination deserved to be rejected by the A
Returning Officer before the District Court Coimbatore in
Election O.P. No. 296 of 2006. As the factual matrix would
unfurl that Tamil Nadu State Election Commission (TNSEC)
had issued a Notification bearing S.O. No. 43/2006ffNSEC/
EG dated 1.9.2006 which stipulated that every candidate B
desiring to contest an election to a local body, was required
to furnish full and complete information in regard to five
categories referred to in paragraph five of the preamble to
the Notification, at the time of filing his nomination paper.
One of the mandatory requirements of the disclosure was C
whether the candidate was accused in any pending case
prior to six months of filing of the nomination of any offence
punishable with imprisonment for two years or more and
in which, charges have been framed or cognizance taken 0
by a court of law. It was asserted in the petition that the
appellant, who was the President of a cooperative society,
on allegations of criminal breach of trust, falsification of
accounts, etc., was arrayed as an accused in complaint
case in Crime No. 10 of 2001. During investigation, the E
police found certain other facets and eventually placed eight
different chargesheets, being C.C. Nos. 3, 4, 5, 6, 7, 8, 9
and 10 of 2004 before the Judicial Magistrate-IV,
Coimbatore and the Magistrate had taken cognizance much
before the Election Notification. Factum of taking F
cognizance and thereafter framing of charges in all the
. eight cases for the offences under Sections 120-B, 406,
408 and 477-A of the Indian Penal Code, 1860 ('IPC' for
short) prior to the cut-off date are not in dispute. The
appellant had filed a declaration and the affidavit only G
mentioning Crime No 10 of 2001 and did not mention the
details of the chargesheets filed against him which were
. pending trial. In this backdrop, the Election Petition was
filed to declare his election as null and void on the ground
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SUPREME COURT REPORTS
[2015] 4 S.C.R.
A that he could not have contested the election and, in any
case, the election was unsustainable.
4. In the Election Petition, the petitioner mentioned all
the eight cases by way of a chart. It is as follows:
B
rs--:--! Oirre No.10/01/Sedion
·- -------·-
C. c. No. I Carpai nant
Court
No.
--
-
01.
L.Vs400477AIPC
3'2004
COWCID
JI/I IV
Coirrbatore
02.
L.Vs 120 (b) r/w 406 477 5'2004
"
"
AIFC
·------·----·· ·-----· -----'-·
- --
--~
03.
L.Vs 408, 400 477 AIFC
5'2004
"
"
c
04.
"
5'2004
"
"
05.
"
7/2004
"
"
06.
L.Vs 120 (b) r/w 408, 400 812004
"
"
477AIFC
D
07.
"
S'2005
"
"
i 08.
"
1CV2004
"
"
5, After asseverating certain other facts, it was pleaded
that the 1st respondent had deliberately suppressed material
facts which if declared would enable his nomination papers
E being rejected. That apart, emphasis was laid on the fact
that the elected candidate had not declared the particulars
regarding the criminal cases pending against him.
6. In this backdrop, the election of the first respondent
F was sought to be declared to be invalid with certain other
consequential reliefs. In the counter-statement filed by the
elected candidate, a stand was put forth that the election
petitioner though was present at the time of scrutiny of the
nomination papers, had failed to raise any objection and,
G in any case, he had mentioned all the necessary details in
the nomination papers perfectly. It was further set forth as
follows:
H
"All the averments stated in the 31d para of the petition
is false and hereby denied. The averment stated that
1st respondent had deliberately omitted to provide the
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
1003
[DIPAK MISRA, J.]
details of charge sheets having been filed against him A
which have been on file in eight cases is false and
hereby denied. It is humbly submitted that this
respondent has clearly mentioned about the case
pending in Cr. No. 10/2001 pending before the JM No.
4 at page No. 2 in details of candidate. Therefore the B
above said averments are false, misleading and
unsustainable."
7. The Principal District Judge of Coimbatore, the
Election Tribunal, adverted to the allegations, the ocular and
C
the documentary evidence that have been brought on
record and came to hold that nomination P!:IPers filed by
the appellant, the first respondent to the Election Petition,
deserved to be rejected and, therefore, he Gould not have
contested the election, and accordingly he declared the D
election as null and void and ordered for re-election of the
post of the President in question. The said order was
challenged in revision before the High Court.
8. In revision, the High Court referred to the decisions E
in Union of India Vs. Association for Democratic
Reforms, 1 People's Union for Civil Liberties (PUCL) &
Another \I. Union of India and Another"-, Notification
issued by the Election Commission of India and the
Notification of the State Election Commission, Sections 259
F
and 260 of the 1994 Act and adverted to the issues whether
there was suppression by the elected candidate and in that
context referred to the 'Form' to be filled up by a candidate
as per the Notification dated 1.9.2006 and opined that an
element of sanctity and solemnity is attached to the said G
declaration, by the very fact that it is required to be in the
1 (2002) 5 sec 294
2 (2003) 4 sec 399
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[2015] 4 S.C.R.
A form of an affidavit sworn and attested in a particular
manner. The High Court emphasised on the part of the
verification containing the declaration that "nothing material
has been concealed". On the aforesaid analysis, the High
Court held that the elected candidate had not disclosed the
B full and complete information. Thereafter, the High Court
referred to the authority in Association for Democratic
Reforms (supra), incorporation of Sections 33A and 44A
in the 1951 Act, Rule 4A of the Conduct of Election Rules,
1961 and Form 26 to the said Rules, Section 125A of the
C 1951 Act, the definition of 'Affidavit' as per Section 3(3) of
the General Clauses Act, 1897, the conceptual meaning
of Oath, Seation 8 of The Oaths Act, 1969 and scanned
the anatomy of Sections 259 and 260 of the 1994 Act and
0
the principles that have been set out in various decisions
of this Court and opined that the non-disclosure of full and
complete information relating to his implication in criminal
cases amounted to an attempt to interfere with the free
exercise of electoral right which would fall within the
E meaning of 'undue influence' and consequently 'corrupt
practice' under Section 259(1)(b) read with Section 260(2)
of the 1994 Act. Being of this view, the High Court agreed
with the ultimate conclusion of the tribunal though for a
different reason.
F
9. We have heard Ms. V. Mahana, learned counsel for
the appellant, Mr. Subramonium Prasad, learned AAG for
the State Election Commission, Mr. R. Anand
Padmanabhan, learned counsel for the respondent No.1
G and Mr. R. Neduamaran, learned counsel for the
respondent no.2. Regard being had to the impact it would
have on the principle relating to corrupt practice in all
election matters as interpretation of the words 'undue
influence' due to non-disclosure of criminal antecedents
H leading to "corrupt practice" under the 1951, Act, we also
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
1005
[DIPAK MISRA, J.]
sought assistance of Mr. Harish N. Salve, learned senior A
counsel and Mr. Maninder Singh, learned Additional
Solicitor General for Union of India.
10. First, we intend, as indicated earlier, to address the
issue whether non-disclosure of criminal antecedents would
8
tantamount to undue influence, which is a facet of corrupt
practice as per Section 123(2) of the 1951 Act. After our
advertence in that regard, we shall dwell upon the facts of
the case as Ms. V. Mahana, learned counsel for the
appellant has astutely highlighted certain aspects to C
demonstrate that there has been no suppression or nondisclosure and, therefore, the election could not have been
declared null and void either by the Election Tribunal or by
the High Court. Postponing the discussions on the said
score, at this stage, we shall delve into the aspect of corrupt D
practice on the foundation of non-disclosure of criminal
antecedents.
11. The issue of disclosure, declaration and filing of
the affidavit in this regard has a history, albeit, a recent E
one. Therefore, one is bound to sit in a time-machine. In
Association for Democratic Reforms (supra), the Court
posed the following important question:-
" ... ln a nation wedded to republican and democratic F
form of government, where election as a Member of
Parliament or as a Member of Legislative Assembly
is of utmost importance for governance of the country,
whether, before casting votes, voters have a right to
know relevant particulars of their candidates? Further G
connected question is - whether the High Court had
jurisdiction to issue directions, as stated below, in a
writ petition filed under Article 226 of the Constitution
of India?"
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[2015] 4 S.C.R.
A
12. To answer the said question, it referred to the
authorities in Vineet Narain \I. Union of lndia3 , Kihoto
Hollohan \I. Zachillhu' and opined that in case when the
Act or Rules are silent on a particular subject and the
authority implementing the same has constitutional or
B statutory power to implement it, the Court can necessarily
issue directions or orders on the said subject to fill the
vacuum or void till the suitable law is enacted; that one of
the basic structures of our Constitution is "republican and
democratic form of government and, therefore, the
C superintendence, direction and control of the "conduct of
all elections" to Parliament and to the legislature of every
State vests in the Election Commission; and the phrase
"conduct of elections" is held to be of wide amplitude which
0
would include power to make all necessary provisions for
conducting free and fair elections."
13. After so holding, the Court posed a question
whether the Election Commission is empowered to issue
directions. Be it noted, such a direction was ordered by the
E High Court of Delhi and in that context the Court relied upon
Mohinder Singh Gill \I. Chief Election Commissioner6,
Kanhiya Lal Omar \I. R.K. Trivedi6, Common Cause \I.
Union of lndia7 and opined thus:
F
"If right to telecast and right to view sport games and
the. right to impart such information is considered to
be part and parcel of Article 19(1 )(a), we fail to
----
3 (1998) 1 sec 225
G
4 1992 Supp (2) sec 651
5 (1978) 1 sec 405
6 (1985) 4 sec 628
H
7 (1996) 2 sec 752
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
1007
[DIPAK MISRA, J.]
understand why the right of a citizen/voter -
a little A
man -
to know about the antecedents of his
candidate cannot be held to be a fundamental right
under Article 19(1 )(a). In our view, democracy cannot
survive without free and fair election, without free and
fairly informed voters. Votes cast by uninformed voters
B
in favour of X or Y candidate would be meaningless.
As stated in the aforesaid passage, one-sided
information, disinformation, misinformation and noninformation, all equally create an uninformed citizenry
which makes democracy a farce. Therefore, ,casting C
of a vote by a misinformed and non-informed voter
or a voter having one-sided information only is boun.d
to affect the democracy seriously. Freedom of speech
and expression includes right to impart and receive 0
information which includes freedom to hold opinions.
Entertainment is implied in freedom of "speech and
expression" and there is no reason to hold that
freedom of speech and expression would not cover
. right to get material information with regard to a E
candidate who is contesting election for a post which
is of utmost importance in the democracy."
14. In this regard, a reference was made to a passage
from P. \/. Narasimha Rao \/. State (CB/ISPE)8, jurisdiction
F
of the Election Commission and ultimately the Court issued
the following directions:
"The Election Commission is directed to call for
information on affidavit by issuing necessary order in
exercise of its power under Article 324 of the G
Constitution of India from each candidate seeking
election to Parliament or a State Legislature as a
a (1998) 4 sec 626
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B
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SUPREME COURT. REPORTS
[2015] 4 S.C.R.
necessary part of his nomination paper, furnishing
therein, information on the following aspects in relation
to his/her candidature:
(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.
(2) Prior to six months of filing of nomination, whether
the candidate is accused in any pending case, of
any offence punishable with imprisonment for two
years or more, and in which charge is framed or
cognizance is taken 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
of dependants.
(4) Liabilities, if any, particularly whether there are any
overdues of any public financial institution or
government dues.
(5) The educational qualifications of the candidate."
F
15.
After the said decision was rendered, The
Representation of the People (Amendment) Ordinance,
2002, 4 of 2002 was promulgated by the President of India
on 24.8.2002 and the validity of the same was called in
question under Article 32 of the Constitution of India. The
G three-Judge Bench in People's Union for Civil Liberties
(PUCL) (supra) posed the following questions:-
H
"Should we not have such a situation in selecting a
candidate contesting elections? In a vibrant
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
1009
[DIPAK MISRA, J.]
democracy - is it not required that a little voter should A
know the biodata of his/her would-be rulers, lawmakers or destiny-makers of the nation?"
And thereafter,
B
"Is there any necessity of keeping in the dark the
voters that their candidate was involved in criminal
cases of murder, dacoity or rape or has acquired the
wealth by unjustified means? Maybe, that he is
acquitted because the investigating officer failed to c
unearth the truth or because the witnesses turned
hostile. In some cases, apprehending danger to their
life, witnesses fail to reveal what was seen by them."
And again
D
"Is there any necessity of permitting candidates or
their supporters to use unaccounted money during
elections? It assets are declared, would it no amount
to having some control on unaccounted elections
expenditure?"
E
16. During the pendency of the judgment of the said
case, the 1951 Act was amended introducing Section 338.
The Court reproduced Section 33-A and 33-B, which are
as follows:-
F
"33-A. 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 G
(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- H
1010
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
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 subB
section (2), or covered in sub-section (3), of Section
8 and sentenced to imprisonment for one year or
more.
c
D
E
F
G
H
(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 verifying 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 subsection (1 ), display the aforesaid information by
affixing a copy of the affidavit, delivered under subsection (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.
33-B. Candidate to furnish information only under the
Act and the rules.-Notwithstanding anything
contained in any judgment, decree or order of any
court or any direction, order or any other instruction
issued by the Election Commission, no candidate shall
be liable to disclose or furnish any such information,
in respect of his election, which is not required to be
disclosed or furnished under this Act or the rules
made thereunder."
17. Though various issues were raised in the said
KRISHNAMOORTHY v. SIVAKUMAR & ORS.
1011
[DIPAK MISRA, J.]
case, yet we are really to see what has been stated with A
regard to the disclosure, and the Ordinance issued after
the judgment. M.B. Shah, J., in his ultimate analysis held
as follows:-
"What emerges from the above discussion can be
B
summarised thus:
(A) The legislature can remove the basis of a decision
rendered by a competent court thereby rendering that
decision ineffective but the legislature has no power C
to ask the instrumentalities of the State to disobey or
disregard the decisions given by the court. A
declaration that an order made by a court of law is
void is normally a part of the judicial function. The
legislature cannot declare that decision rendered by o
the Court is not binding or is of no effect.
It is true that the legislature is entitled to change the
law with retrospective effect which forms the basis of
a judicial decision. This exercise of power is subject E
to constitutional provision, therefore, it cannot enact
a law which is violative of fundamental right.
(B) Section 33-B which provides that notwithstanding
anything contained in the judgment of any court or F
directions issued by the Election Commission, no
candidate shall be liable to disclose or furnish .any
such information in respect of his election which is
not required to be disclosed or furnished under the
Act or the rules made thereunder, is on the face of it G
beyond the legislative competence, as this Court has
held that the voter has a fundamental right under
Article 19( 1 )(a) to know the antecedents of a
candidate for various reasons recorded in the earlier
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A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2015] 4 S.C.R.
judgment as well as in this judgment.
The Amended Act does not wholly cover the directions
issued by this Court.