# Ajmera Shyam v. Smt. Kova Laxmi & Ors

- **Citation:** 2025 INSC 992
- **Court:** Supreme Court of India
- **Decided:** 2025-08-14
- **Case number:** Civil Appeal No. 13015 of 2024
- **Bench:** Surya Kant, Nongmeikapam Kotiswar Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajmera-shyam-v-smt-kova-laxmi-ors-38638
- **Pages:** 56

## Headnote

Issue arose whether the non-mentioning of the income shown
in the income tax return for four financial years in the Form 26
Affidavit and its portrayal as "Nil" by the respondent no.1-returned
candidate would amount to non-disclosure, thereby rendering the
acceptance of his nomination as improper and making her election
liable to be declared void u/s.100(1)(d)(i) of the Representation of
the People Act, 1951; whether such non-disclosure constitutes a
corrupt practice, rendering her election liable to be declared void
u/s.100(1)(b); and does such non-disclosure amount to a violation
of r.4A of the Rules, despite mentioning the assets and liabilities,
source of income, and profession, thereby materially affecting the
election of Respondent No. 1 and warranting the voiding of her
election u/s.100(1)(d)(iv).
Headnotes†
Representation of the People Act, 1951 - ss.100(1)(b),
100(1)(d)(i), 100(1)(d)(iv) - Conduct of Elections Rules, 1961 -
r.4A - Grounds for declaring election to be void - Disclosure of
information about assets of the candidates - Election petition
by the appellant-unsuccessful candidate, challenging the
election of the respondent No. 1 as MLA, as void - Allegations
that the respondent No.1, while submitting the Form 26
Affidavit, at the time of filing the nomination paper, did not
disclose her income shown in the income tax returns for four
completed financial years out of the last five financial years,
the same was shown as Nil; and that respondent No. 1 did
not disclose her income from honorarium and pension, thus,
the nomination form of the respondent No.1 was improperly
accepted by the Returning Officer - High Court dismissed the
Election Petition - Correctness:
* Author
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Held: Merely because a returned candidate has not disclosed
certain information related to the assets, courts should not rush
to invalidate the election by adopting a highly pedantic and
fastidious approach, unless it is shown that such concealment
or non-disclosure was of such magnitude and substantial nature
that it could have influenced the election result - On facts, not
demonstrated that concealment or non-disclosure of certain
information related to assets was of a substantial nature that
could have materially affected the result of the election of the
returned candidate - Non-disclosure of income in the income tax
return for four financial years by respondent No.1, not a defect of
substantial character, thus, no illegality committed by the Returning
Officer in accepting the nomination of the respondent No.1 - Penal
clause cannot be invoked to invalidate respondent No.1's election
u/s.100(1)(d)(i) on the ground that the nomination of Respondent
No.1 was improperly accepted - Non-disclosure of income not
of a substantial nature to be considered a corrupt practice within
the meaning of s.123 (2), and thus, the election of respondent
No.1 cannot be rendered void u/s.100(1)(b) - It cannot be also
said that the Respondent No.1 did not comply with the relevant
provisions of the Act or any rule or order made under the Act, to
attract the provisions of s.100(1)(d)(iv) - Respondent no. 1 is a
wellknown political figure in her Constituency and no allegation
of malpractice or corrupt practices or providing false information
by her - Respondent No.1 had already disclosed her and her
spouse's assets, both movable and immovable, source of income,
and profession - In view thereof, non-disclosure of the tax return
for certain financial years, although a technical defect under the
rules, cannot be considered to be a defect of significant importance
as it does not in any manner amount to hiding the assets - It does
not amount to misrepresentation or non-disclosure of assets which
is of consequence - Nothing has been shown by the election
petitioner about any disproportionately higher income vis-à-vis the
sources of income in respect of the period for which the income
tax returns had not been filed - Respondent No.

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[2025] 8 S.C.R. 1789 : 2025 INSC 992
Ajmera Shyam
v.
Smt. Kova Laxmi & Ors.
(Civil Appeal No. 13015 of 2024)
14 August 2025
[Surya Kant and Nongmeikapam Kotiswar Singh,* JJ.]
Issue for Consideration
Issue arose whether the non-mentioning of the income shown
in the income tax return for four financial years in the Form 26
Affidavit and its portrayal as "Nil" by the respondent no.1-returned
candidate would amount to non-disclosure, thereby rendering the
acceptance of his nomination as improper and making her election
liable to be declared void u/s.100(1)(d)(i) of the Representation of
the People Act, 1951; whether such non-disclosure constitutes a
corrupt practice, rendering her election liable to be declared void
u/s.100(1)(b); and does such non-disclosure amount to a violation
of r.4A of the Rules, despite mentioning the assets and liabilities,
source of income, and profession, thereby materially affecting the
election of Respondent No. 1 and warranting the voiding of her
election u/s.100(1)(d)(iv).
Headnotes†
Representation of the People Act, 1951 - ss.100(1)(b),
100(1)(d)(i), 100(1)(d)(iv) - Conduct of Elections Rules, 1961 -
r.4A - Grounds for declaring election to be void - Disclosure of
information about assets of the candidates - Election petition
by the appellant-unsuccessful candidate, challenging the
election of the respondent No. 1 as MLA, as void - Allegations
that the respondent No.1, while submitting the Form 26
Affidavit, at the time of filing the nomination paper, did not
disclose her income shown in the income tax returns for four
completed financial years out of the last five financial years,
the same was shown as Nil; and that respondent No. 1 did
not disclose her income from honorarium and pension, thus,
the nomination form of the respondent No.1 was improperly
accepted by the Returning Officer - High Court dismissed the
Election Petition - Correctness:
* Author
1790
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Supreme Court Reports
Held: Merely because a returned candidate has not disclosed
certain information related to the assets, courts should not rush
to invalidate the election by adopting a highly pedantic and
fastidious approach, unless it is shown that such concealment
or non-disclosure was of such magnitude and substantial nature
that it could have influenced the election result - On facts, not
demonstrated that concealment or non-disclosure of certain
information related to assets was of a substantial nature that
could have materially affected the result of the election of the
returned candidate - Non-disclosure of income in the income tax
return for four financial years by respondent No.1, not a defect of
substantial character, thus, no illegality committed by the Returning
Officer in accepting the nomination of the respondent No.1 - Penal
clause cannot be invoked to invalidate respondent No.1's election
u/s.100(1)(d)(i) on the ground that the nomination of Respondent
No.1 was improperly accepted - Non-disclosure of income not
of a substantial nature to be considered a corrupt practice within
the meaning of s.123 (2), and thus, the election of respondent
No.1 cannot be rendered void u/s.100(1)(b) - It cannot be also
said that the Respondent No.1 did not comply with the relevant
provisions of the Act or any rule or order made under the Act, to
attract the provisions of s.100(1)(d)(iv) - Respondent no. 1 is a
wellknown political figure in her Constituency and no allegation
of malpractice or corrupt practices or providing false information
by her - Respondent No.1 had already disclosed her and her
spouse's assets, both movable and immovable, source of income,
and profession - In view thereof, non-disclosure of the tax return
for certain financial years, although a technical defect under the
rules, cannot be considered to be a defect of significant importance
as it does not in any manner amount to hiding the assets - It does
not amount to misrepresentation or non-disclosure of assets which
is of consequence - Nothing has been shown by the election
petitioner about any disproportionately higher income vis-à-vis the
sources of income in respect of the period for which the income
tax returns had not been filed - Respondent No.1 had not left the
relevant column in the Affidavit blank, which would have made the
nomination paper fatally defective and liable to be rejected - Not a
case of providing false information or engaging in disinformation,
but rather failure to provide certain information concerning the
assets which, does not amount to a defect of substantial character
warranting declaration of Respondent No.1's election as void - Also,
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Ajmera Shyam v. Smt. Kova Laxmi & Ors.
no objection at the time of scrutiny, during the election trial, no
material produced by the petitioner regarding the non-disclosure
of any material information by the returned candidate - As regards
the allegation that the respondent No.1 did not disclose the income
from honorarium she received as Chairperson of Zilla Parishad,
or that she did not disclose receiving ex-MLA pension cannot be
considered to have been proved or established, nor these are of
any material consequences - Constitution of India - Art. 19(1)(a).
[Paras 10.11-10.35, 11.1-11.5]
Representation of the People Act, 1951 - ss.8 and 9 -
Disclosure of information relating to criminal antecedents
and disclosure of information about assets and educational
qualification - Difference between:
Held: Disclosure concerning criminal antecedents is linked to the
existing provisions u/s.8 and 9, which specify that a candidate
would be disqualified if convicted of any offences listed u/s.8 or
dismissed for corruption or disloyalty u/s.9 - However, regarding
voidance of the election of the returned candidates due to nondisclosure of assets, it is not explicitly stated in the Act - It has
become part of election law through judicial intervention and it is
to be mentioned as part of the Form 26 Affidavit filed during the
nomination process - Disclosure of information relating to criminal
antecedents and assets cannot be placed at the same pedestal -
Requirement to disclose criminal antecedents has to be examined
more scrupulously and dealt with more strictly as the involvement
of criminals is a bane in the electoral system, which was the prime
focus of judicial intervention which is reflected in the insertion of s.
33A of the Act - On the other hand, disclosure of information about
assets and educational qualification were attending requirements
to improve the quality of the electoral process and the elected
members for which no specific statutory provision has been made in
the Act, but forms part of the information required to be mentioned
in the Form 26 Affidavit in terms of r.4A - However, there can be
no disqualification under the law based on a candidate's wealth
or financial status unlike in the case of candidates with criminal
antecedents, who will stand disqualified if convicted of certain
offences mentioned u/s.8. [Paras 9.4-9.8]
Election - Election disputes concerning disclosure of
information - Judicial intervention:
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Held: Aiming to prevent criminals from participating in elections
to maintain purity of the electoral process essential for the proper
functioning of parliamentary democracy the court was compelled
to exercise its extraordinary power to issue specific directions -
Consequently, not only disclosure of criminal antecedents, but also
related obligations to disclose assets, liabilities, and educational
qualifications of election candidates became mandatory -
Knowledge of the criminal antecedents, assets and educational
qualifications of the candidates by voters certainly invigorates the
electoral process, which is ensured by obligatory disclosure by
the candidate - However, there is a subtle distinction between
non-disclosure of criminal antecedents and that of assets and
educational qualifications - While disclosure of criminal antecedents
in the electoral process was the most critical element to maintain
the purity of the electoral process which has to be scrupulously
adhered to, disclosure of assets and educational qualifications were
considered as attending supplementary requirements to strengthen
the electoral process, of which there will be certain scope for
consideration as to whether it is of substantial or inconsequential
nature. [Para 11.1]
Representation of the People Act, 1951 - Part VI - Election
petition - Conditions for challenging the outcome of an
election - Discussed. [Para 9.11.2]
Elections - Election process - Examining the validity of
nomination - Disclosure of information - Role of court -
Elucidated. [Paras 9.10-9.10.8]
Case Law Cited
Union of India v. Association for Democratic Reforms & Anr. [2002]
3 SCR 696 : (2002) 5 SCC 294; People's Union for Civil Liberties
(PUCL) & Anr. v. Union of India [2003] 2 SCR 1136 : (2003) 4
SCC 399; Resurgence India v. Election Commission of India [2013]
9 SCR 360 : (2014) 14 SCC 189; Jagan Nath v. Jaswant Singh
[1954] 1 SCR 892 : (1954) 1 SCC 57; Madhukar G.E. Pankakar v.
Jaswant Chobbildas Rajani & Ors. [1976] 3 SCR 832 : (1977) 1
SCC 70; Santosh Yadav v. Narender Singh [2001] Supp. 4 SCR
545 : (2002) 1 SCC 160; Jeet Mohinder Singh v. Harminder Singh
Jassi [1999] Supp. 4 SCR 33 : (1999) 9 SCC 386; Lok Prahari v.
Union of India & Ors. [2018] 2 SCR 892 : (2018) 4 SCC 699; S.
Rukmini Madegowda v. State Election Commission & Ors. [2022]
[2025] 8 S.C.R.
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Ajmera Shyam v. Smt. Kova Laxmi & Ors.
12 SCR 1 : (2022) 18 SCC 1; Karikho Kri v. Nuney Tayang & Anr.
[2024] 4 SCR 394 : 2024 SCC Online SC 519 - referred to.
Association for Democratic Reforms v. Union of India and Anr.
(2001) 57 DRJ 82 (DB) - referred to.
Books and Periodicals Cited
Law Commission of India, 170th Report - referred to.
List of Acts
Constitution of India; Representation of the People Act, 1951;
Conduct of Elections Rules, 1961; Representation of the People
(3rd Amendment) Act, 2002; Government of Union Territories Act,
1963; Code of Civil Procedure, 1908.
List of Keywords
Election process; Legislative assembly; Income tax return;
Disclosure of information; Criminal antecedent; Declaration of an
Election void; Election petition; Right to know; Corrupt practices;
Returning officer; Form 26 Affidavit; Non-disclosure of assets;
Assets and sources of income; Conditions for challenging the
outcome of an election; Burden of proof; Honorarium; Ex-MLA;
Chairman of Zila Parishad; Pension; Non-mentioning of the income
shown in the income tax return; Acceptance of the nomination as
improper; Corrupt practice; Filing the nomination paper; Disclosure
of information relating to criminal antecedents; Disclosure of
information about assets and educational qualification; Judicial
intervention.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13015 of 2024
From the Judgment and Order dated 25.10.2024 of the High Court
for the State of Telangana at Hyderabad in EP No. 10 of 2024
Appearances for Parties
Advs. for the Appellant:
B. Rajendran, Dama Sheshadri Naidu, Sr. Advs., Somanadri Goud
Katam, Ms. Neha Agarwal, Rahul Jayapal Reddy, Sirajuddin.
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Advs. for the Respondents:
Vipin Sanghi, Sr. Adv., P. Mohith Rao, Ms. J. Akshitha, Eugene
S Philomene.
Judgment / Order of the Supreme Court
Judgment
Nongmeikapam Kotiswar Singh, J.
1.
The present civil appeal has been filed under Section 116A of the
Representation of People Act, 1951 (hereinafter referred to as the
"Act"), against the impugned judgment and order dated 25.10.2024
passed by the High Court for the State of Telangana at Hyderabad,
whereby, the High Court dismissed the Election Petition No. 10/2024
preferred by the Appellant herein, Ajmera Shyam, the election
petitioner.
2.
The issue which arose for consideration in the said election petition,
and which has been canvassed before us is whether non-disclosure
of the income as shown in the income tax return for four financial
years out of the last five financial years in the Form 26 Affidavit, while
submitting the nomination paper by the Respondent No.1, Smt. Kova
Laxmi, the returned candidate and acceptance of the said nomination
by the Returning Officer would amount to improper acceptance of
her nomination and/or whether such non-disclosure would amount to
a corrupt practice by the returned candidate. Further, whether such
non-disclosure would amount to non-compliance of the provisions
of the Representation of the People Act, 1951 and rules or orders
made under the said Act, thus, rendering the election of Respondent
No. 1 liable to be declared void under Section 100 of the Act, at the
instance of the unsuccessful candidate being the Appellant herein.
3.
The High Court rejected the election petitioner's arguments, holding
that the omission of income details in the income tax return for four
out of the last five financial years is not of a significant nature. Based
on this, the election of Respondent No. 1 cannot be declared null
and void under Section 100 of the Act. It was also concluded that
such non-disclosure does not constitute a corrupt practice that would
have materially affected the outcome of the election. Furthermore,
the High Court found that Respondent No. 1 did not deliberately
suppress information, and therefore, there is no corrupt practice or
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undue influence on the voters. Accordingly, the High Court dismissed
the election petition, and the election petitioner is now before us,
challenging the said dismissal.
4.
FACTS IN BRIEF:
4.1 Before we proceed to examine the issue(s), it would be apposite
to briefly refer to the facts of the case as can be culled out
from the pleadings.
4.2 Prior to the impugned election of 2023, Respondent No.1 was a
member of the Legislative Assembly for the State of Telangana
from the Asifabad Assembly Constituency (ST) (hereinafter
referred to as the "Constituency") for the period 2014-2018.
Subsequently, in 2019, Respondent No.1 contested the elections
to the Zilla Parishad Territorial Constituency (ZPTC) and was
elected as a ZPTC Member on 02.05.2019. She was then
elected as the Chairperson of Kumuram Bheem Zilla Parishad,
Asifabad, and continued in that role until 03.12.2023, before
being re-elected as an MLA, which is the subject matter of this
challenge.
4.3 Upon notification of the General Election to the Telangana
Legislative Assembly by the Election Commission of India in
2023, Respondent No.1 submitted her nomination along with
the required Form 26 Affidavit on 09.11.2023, as a nominee of
the Bharat Rashtra Samithi (BRS) Party. There were a total of
17 candidates contesting from the constituency, including the
Appellant (as a nominee of the Indian National Congress) and
Respondent No.1.
4.4 The polling was held on 30.11.2023, and the result of the said
election was declared on 03.12.2023. The Respondent No.1
had secured 83,036 votes, whereas the Appellant secured
60,238 votes. Thus, the Respondent No.1 was declared as the
returned candidate by a margin of 22,798 votes.
4.5 Thereafter, the Appellant filed the Election Petition No.10 of 2024
before the High Court of Telangana, challenging the election of
the Respondent No. 1 as void, and consequently, to declare
the Appellant election petitioner as the elected candidate from
the said Constituency.
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5.
The Appellant challenged the election of the Respondent No.1 by
raising the following pleas:
(i)
Firstly, the Respondent No.1, while submitting the Form
26 Affidavit, at the time of filing the nomination paper, did
not disclose her income shown in the income tax returns
for four completed financial years (as of 31st March),
i.e., F.Y. 2018-2019 to F.Y. 2021-2022, out of the last five
financial years, i.e., F.Y. 2018-2019 to F.Y. 2022-2023, as
required to be furnished in the Form 26 Affidavit under
Rule 4A of the Conduct of Election Rules, 1961 (hereinafter
referred to as the "Rules"). Instead, the Respondent No.1
mentioned her income as "Nil" for the said period in her
Form 26 Affidavit.
It was alleged that Respondent No. 1 failed to disclose
the income she was earning from her monthly honorarium
of Rs. 1,00,000/- while serving as the Chairperson of Zila
Parishad, Kumuram Bheem, Asifabad District.
It was further contended that the Respondent No.1 did
not disclose the Ex-Legislator's Pension received by her
during the relevant financial years on account of her being
an MLA from the same constituency during 2014-2018.
Thus, the nomination form of the Respondent No.1 was
improperly accepted by the Returning Officer, which
materially affected the election of the returned candidate,
being the Respondent No.1, which would render her
election as void.
(ii)
Secondly, due to the non-disclosure of income for the
four financial years viz., honorarium, and pension, the
Respondent No.1 engaged in a corrupt practice as
contemplated under Section 123(2) of the Act, making
her election void.
(iii) Thirdly, since the Respondent No.1 concealed the relevant
information required to be mentioned in the Form 26
Affidavit, it amounts to non-compliance with the provisions
of the Act, in particular Sections 33, 33A, and 34 of the Act
and the rules framed thereunder, rendering her election
liable to be declared as void.
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6.
RESPONDENT NO.1'S CASE:
6.1 The Respondent No.1 contested the election petition by filing
her written statement/counter-affidavit.
6.2 Although Respondent No.1 did not specifically deny the
allegation that she did not provide information regarding her
income for four financial years, she argued that she disclosed
all her assets, both immovable and movable, along with PAN
details, occupation, and the source of her income. Therefore,
such non-disclosure did not constitute a material defect, as it
was not of a substantial character. It was contended that her
nomination was not improperly accepted and did not materially
affect the outcome of her election, thus, not warranting voiding
of her election.
6.3 It was also argued that, since she had submitted her latest
income tax returns for the financial year 2022-23 along with her
PAN details, there was no deliberate suppression to mislead
voters, and therefore, it does not constitute a corrupt practice.
It was also mentioned that Respondent No. 1 was elected as
a member of the Legislative Assembly in 2014 from the same
constituency and served as an MLA until 2018.
6.4 She contended that she had also disclosed her source of income
through the honorarium she was receiving as the Chairperson
of the Zilla Parishad of Kumuram Bheem, Asifabad District.
6.5 The Respondent No.1 contended that after her election as the
Chairperson of the Zilla Parishad, Kumuram Bheem, Asifabad
District, from 04.07.2019 to 03.12.2023, she did not receive the
Ex-MLA pension as alleged in the election petition. To support
this contention, Respondent No.1 submitted a Non-drawal
Certificate dated 20.06.2024, issued by the Assistant Secretary
to the State Legislature.
6.6 It was argued that the nomination paper of Respondent No.1
was properly scrutinised by the Returning Officer, and the
election petitioner never raised any objection regarding the
alleged defects or non-disclosure of information in Respondent
No.1's nomination paper before the Returning Officer at the
time of scrutiny, which was conducted in the presence of all
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the candidates and their agents. Hence, her nomination was
accepted.
It was, thus, argued that since the nomination of Respondent
No.1 was accepted, as no defect was found or pointed out by
the election petitioner during the scrutiny, the election petitioner
is now estopped from raising this issue in the election petition.
6.7 It was further argued by the Respondent No.1 that the election
petition is not maintainable because it does not demonstrate
how the outcome of Respondent No.1's election was materially
affected by the alleged non-disclosure of the relevant information.
It was also argued that the election petitioner failed to comply
with the provisions of Section 83 of the Act read with Rule 94A
of the Rules, which states that when the election petition alleges
any corrupt practice, it must be supported by an affidavit in the
format of Form 25, providing details of such corrupt practice.
7.
THE ISSUE(S) BEFORE US:
The primary issues that call for our consideration are,
Firstly, whether the non-mentioning of the income shown in the
income tax return for four financial years in the Form 26 Affidavit
and its portrayal as "Nil" would amount to non-disclosure, thereby
rendering the acceptance of the nomination of Respondent No.1 as
improper and making her election liable to be declared void under
Section 100(1)(d)(i) of the Act, and,
Secondly, whether such non-disclosure constitutes a corrupt practice,
rendering her election liable to be declared void under Section
100(1)(b) of the Act, and,
Thirdly, does such non-disclosure amount to a violation of Rule 4A
of the Rules, despite mentioning the assets and liabilities, source of
income, and profession, thereby materially affecting the election of
Respondent No. 1 and warranting the voiding of her election under
Section 100(1)(d)(iv) of the Act?
The secondary issues that arise are whether the Respondent No. 1
had fully disclosed her income in the form of honorarium she was
drawing and whether she was receiving ex-MLA pension during the
relevant period.
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8.
THE LEGAL FRAMEWORK ON THE RIGHT TO INFORMATION:
8.1 Having identified the core issues, we will now focus our attention
on the relevant law, which will facilitate resolving the dispute
at hand.
8.2 As our country became free and independent, we took a
solemn resolution to make this country a democratic republic,
as encapsulated in the Preamble to the Constitution of India.
Democracy, in its essence, means a society governed by the
elected representatives of the people based on universal adult
franchise in a free and transparent manner. Thus, free and fair
elections go to the root of a functional democracy. Because of
the great significance attached to it, the subject of election finds
a special place in the Constitution of India under Part XV which
lays down the constitutional mechanism under a constitutional
body viz., the Election Commission of India as provided under
Article 324 of the Constitution, has been assigned the unique
responsibility of superintending, directing and controlling,
amongst others, the conduct of all elections to the Parliament
and the Legislature of every State and of elections to the office
of the President and Vice President.
Article 327 of the Constitution empowers the Parliament to make
laws covering all aspects related to elections for the Houses of
Parliament and the State Legislatures. Based on this Article,
the Parliament has passed the Representation of the People
Act, 1951, which explicitly details the conduct of elections to
the Parliament and State Legislatures, the qualifications and
disqualifications for membership, the corrupt practices and other
offences connected with these elections, and the procedure for
resolving doubts and disputes arising from them.
Thus, the Act of 1951 offers a comprehensive and selfcontained framework for the conduct of elections by the Election
Commission of India.
To implement the provisions of the Act, the Central Government,
in consultation with the Election Commission of India, framed
rules known as "The Conduct of Elections Rules, 1961"
(hereinafter referred to as the "Rules").
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8.3 It may be apt to mention herein that the framers of the Constitution
had envisaged a robust electoral system to sustain democracy
in our country by incorporating Constitutional provisions, and
since the Independence, the Election Commission of India
has successfully undertaken periodical elections for electing
the representatives to the Houses of the Parliament and the
State Legislatures. Unfortunately, certain pernicious malaise
like criminalisation of politics crept in the electoral system
compromising with the purity of the elections, causing a serious
dent in the electoral system and credibility of the results, which
in turn posed a serious challenge to the rule of law and the
principles of democracy which are the foundational tenets of
our Constitution and the society.
8.4 One of the remedies widely discussed in the public domain
was how to prevent criminal elements from taking part in the
electoral process and subvert the electoral mandate. The most
effective means perceived was to disqualify such candidates
who had been convicted of serious crimes and/or for corrupt
practices, corruption or disloyalty, etc. as incorporated under
Section 8 to Section 11A of the Act. With the passage of time,
even such deterrent provisions appeared to be inadequate and
there were calls from the public demanding complete disclosure
of the antecedents and assets of the candidates, so that the
electorate can make a meaningful and informed choice at the
time of exercise of franchise, which was also recommended by
the Law Commission of India, in its 170th Report.
8.5 It was in this background that when the Parliament and the
Election Commission of India, did not show any inclination to
bring in the desired appropriate legal measures, a Writ Petition,
C.W.P. No. 7257 of 1999 came to be filed before the Delhi
High Court in the year 1999 by a public spirited organisation
called the Association for Democratic Reforms, seeking for
directions to be issued to the Union of India and the Election
Commission of India for the implementation of the suggestions/
recommendations of the Law Commission of India to make it
mandatory for every candidate to provide information on various
aspects including criminal antecedents, assets, liabilities,
educational qualifications, etc. by amending the Forms 2-A to
2-E prescribed under the Rules, and to make the information
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public in print form as well as on electronic media for proper
dissemination so as to enable the voters to make an informed
decision while exercising their voting rights.
8.6 The intrinsic link between a robust democracy and well-informed
citizens who periodically elect the representatives who will have
the legitimate right to manage the affairs of the society for a
specified period can never be overstated. For making the right
choice of the elected representatives, there is nothing more
important than a well-informed electorate, who have the right
to get the information about the candidates. This right to have
information by the citizens of the particulars of the candidates
has been acknowledged to be part of the fundamental right of
speech and expression as guaranteed under Article 19(1)(a)
of the Constitution.
It also goes without saying that strong leadership can be
provided by individuals who are held in high esteem by the
people and who are above board in terms of integrity and public
standing. Certainly, candidates who are involved in criminal
activities cannot be ideal candidates and are to be shunned.
Thus, making the antecedents of the candidates known to the
electorate before the election assumes great significance for
a healthy democracy.
It is for this reason that there had been a strident movement to
make the antecedents of the candidates' public. Spurred by this
necessity and popular demand, to ensure proper functioning of
the parliamentary democracy, which is a basic structure of the
Constitution, and in view of the reluctance of the Parliament and
the Election Commission to take appropriate remedial steps,
the extraordinary writ jurisdiction of the Court was invoked.
8.7 In this background, the Delhi High Court, at the instance
of Association for Democratic Reforms in Association for
Democratic Reforms vs. Union of India and Anr., (2001) 57
DRJ 82 (DB), issued the following directions to ensure that the
antecedents and assets of the candidates are made public and
known to the electorate:
"...................Accordingly, it is directed that the Election
Commission shall secure to the voters the following
information pertaining to each of the candidates
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standing for election to the Parliament and to the
State Legislatures and the parties they represent:-
1. Whether the candidate is accused of any
offence(s) punishable with imprisonment? If so,
the details thereof.
2. Assets possessed by a candidate, his or her
spouse and dependent relations.
3. Facts giving insight to candidate's
competence, capacity and suitability for acting
as parliamentarian or legislator including details
of his/her educational qualifications.
4. Information which the election commission
considers necessary for judging the capacity
and capability of the political party fielding the
candidate for election to Parliament or the State
Legislature.
.........................................................
........................."
8.8 The aforesaid directions of the Delhi High Court were
unsuccessfully challenged by the Union of India before this Court
in Union of India v. Association for Democratic Reforms
& Anr., (2002) 5 SCC 294, in which this Court elaborately
discussed the various legal issues including the right of the
citizen to know about the candidates contesting the elections
and clarified the legal position, emphasising the importance of
the right to information of the voters of the candidates, as are
relevant, as follows:
"46. To sum up the legal and constitutional position
which emerges from the aforesaid discussion, it can
be stated that:
1. The jurisdiction of the Election Commission
is wide enough to include all powers necessary
for smooth conduct of elections and the word
"elections" is used in a wide sense to include
the entire process of election which consists
of several stages and embraces many steps.
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2. The limitation on plenary character of power
is when Parliament or State Legislature has
made a valid law relating to or in connection
with elections, the Commission is required to act
in conformity with the said provisions. In case
where law is silent, Article 324 is a reservoir of
power to act for the avowed purpose of having
free and fair election...................
3. ................................................
4. To maintain the purity of elections and in
particular to bring transparency in the process of
election, the Commission can ask the candidates
about the expenditure incurred by the political
parties and this transparency in the process
of election would include transparency of a
candidate who seeks election or re-election.
In a democracy, the electoral process has a
strategic role. The little man of this country
would have basic elementary right to know full
particulars of a candidate who is to represent
him in Parliament where laws to bind his liberty
and property may be enacted.
5. The right to get information in democracy
is recognised all throughout and it is a natural
right flowing from the concept of democracy. At
this stage, we would refer to Article 19(1) and
(2) of the International Covenant on Civil and
Political Rights, which is as under:
"(1) Everyone shall have the right to hold
opinions without interference.
(2) Everyone shall have the right to
freedom of expression; this right shall
include freedom to seek, receive and
impart information and ideas of all kinds,
regardless of frontiers, either orally, in
writing or in print, in the form of art, or
through any other media of his choice."
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6. On cumulative reading of a plethora of
decisions of this Court as referred to, it is
clear that if the field meant for legislature and
executive is left unoccupied detrimental to the
public interest, this Court would have ample
jurisdiction under Article 32 read with Articles 141
and 142of the Constitution to issue necessary
directions to the executive to subserve public
interest.
7. Under our Constitution, Article 19(1)(a)
provides for freedom of speech and expression.
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. For this purpose, information
about the candidate to be selected is a must.
Voter's (little man - citizen's) right to know
antecedents including criminal past of his
candidate contesting election for MP or MLA is
much more fundamental and basic for survival
of democracy. The little man may think over
before making his choice of electing lawbreakers as law-makers."
8.9 Thereafter, in the light of the above legal principles enunciated,
this Court in Assn. for Democratic Reforms (supra) issued
following directions for disclosure of certain relevant information
about antecedents relating to criminal offenses, assets and
liabilities and educational qualification:
"48. 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
Constitution of India from each candidate seeking
election to Parliament or a State Legislature as a
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 -
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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."
8.10 After the aforesaid judgment of this Court in Assn. for
Democratic Reforms (supra), an Ordinance was promulgated
by the President of India on 24.08.2002 by way of which,
Sections 33A and 33B were inserted in the Representation of
People Act, 1951 purportedly in compliance of the directions
issued by this Court. Later the said Ordinance was repealed
and the Representation of People (3rd Amendment) Act, 2002
(72 of 2002) was notified inserting Sections 33A and 33B in
the 1951 Act.
Section 33A requires the candidate to furnish additional
information as to-
(i) whether he is accused of any offence punishable
with imprisonment for 2 (two) years or more in a
pending case in which a charge has been framed
by the Court of competent jurisdiction;
(i) whether he has been convicted of an offence
other than any offence referred to in sub-section (1)
or subsection (2), or covered in sub-section (3), of
section 8 and sentenced to imprisonment for one
year or more.
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Section 33B, however, provides that 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 there under.
8.11 It may be noted that, the aforesaid Section 33A did not provide
for furnishing of the information as directed by this Court in
Assn. for Democratic Reforms (supra) and the scope of
the directions issued by this Court was further sought to be
whittled down by incorporating Section 33B.
8.12 Thus, Section 33B came to be challenged before this Court
in People's Union for Civil Liberties (PUCL) & anr. v.
Union of India, (2003) 4 SCC 399. This Court in PUCL
(supra) while dealing with this issue touched upon various
aspects of the directions issued by this Court in the earlier
decision of Association for Democratic Reforms' case
(supra) and reaffirmed the said decision requiring furnishing
of information by the candidates as regards the antecedents
relating to criminal cases/offences, assets, liabilities and debts
of the candidates, their spouses and children and educational
qualification of the candidates. The directions by this Court
for furnishing such information was based on a broader
interpretation of Article 19(1)(a) which guarantees freedom
of speech and expression to the citizens of this country. The
aforesaid information was held to be an essential ingredient
of Article 19(1)(a) and accordingly, this Court in PUCL (supra)
made the following observations:
"18. So, the foundation of a healthy democracy is
to have well-informed citizens-voters. The reason
to have right of information with regard to the
antecedents of the candidate is that voter can judge
and decide in whose favour he should cast his vote.
It is the voter's discretion whether to vote in favour
of an illiterate or literate candidate. It is his choice
whether to elect a candidate against whom criminal
cases for serious or non-serious charges were filed
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but is acquitted or discharged. He is to consider
whether his candidate may or may not have sufficient
assets so that he may not be tempted to indulge in
unjustified means for accumulating wealth. For assets
or liability, the voter may exercise his discretion in
favour of a candidate whose liability is minimum and/or
there are no overdues of public financial institution or
government dues. From this information, it would be,
to some extent, easy to verify whether unaccounted
money is utilized for contesting election and whether
a candidate is contesting election for getting rich or
after being elected to what extent he became richer.
Exposure to public scrutiny is one of the known
means for getting clean and less polluted persons to
govern the country. A little man - a citizen - a voter
is the master of his vote. He must have necessary
information so that he can intelligently decide in
favour of a candidate who satisfies his criterion of
being elected as an MP or MLA. On occasions, it is
stated that we are not having such intelligent voters.
This is no excuse. This would be belittling a little
citizen/voter. He himself may be illiterate but still he
would have the guts to decide in whose favour he
should cast his vote. In any case, for having free
and fair election and not to convert democracy into
a mobocracy and mockery or a farce, information to
voters is a necessity."
(emphasis added)
8.13 M.B. Shah, J in his elaborate judgment in the case of PUCL
(supra) summarised the conclusions as mentioned in para 78
of the judgment, relevant portions of which are reproduced
herein below:
"78. What emerges from the above discussion can
be summarised thus:
(A) The legislature can remove the basis of
a decision rendered by a competent court
thereby rendering that decision ineffective
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but the legislature has no power 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 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.