# KISAN SHANKAR KATHORE v. ARUN DATIATRAY SAWANT & ORS

- **Citation:** [2014] 7 S.C.R. 258
- **Court:** Supreme Court of India
- **Decided:** 2014-05-09
- **Case number:** Civil Appeal No. 4261 of 2007
- **Bench:** Surinder Singh Nijjar, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kisan-shankar-kathore-v-arun-datiatray-sawant-ors-30148
- **Pages:** 41

## Headnote

Representation of People Act, 1951 - s. 100(1)(d)(i) and
(iv) - Non-disclosure of information - Election petition by voter
C - Improper acceptance of returned candidate's nomination by
returning officer, despite suppression of material facts, thus,
election void - High Court set aside the election of returned
candidate - On appeal, held: Non-disclosure of the electricity
dues not a serious lapse, but non-disclosure of property and
D vehicle in the name of returned candidate's wife as also
returned candidate's interest/share in the partnership firm
major lapse - Thus, material information about the assets not
disclosed in the affidavits given by the returned candidate
along with the nomination form - There was not a substantial
E compliance in disclosing the requisite information in the
affidavits along with the nomination paper - Once it is found
that it was a case of improper acceptance, as there was
misinformation or suppression of material information, the
rejection can only be at a later date and appropriate stage
F would be in an election petition - When the court gives such
a finding which results in rejection, effect would be that such
candidate was not entitled to contest and the election is void,
otherwise, it would be an anomalous situation, which cannot
be countenanced - Thus, the order passed by High Court is
G upheld.
The appellant was declared successful candidate in I
the election of legislative assembly. The first respondent-/'
voter, filed an election petition uls. 100(1 )(d)(i) and (iv) of
the Representation of People Act, 1951 stating that the
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258
KISAN SHANKAR KATHORE v. ARUN DATTATRAY
259
SA WANT
appellant's nomination was improperly accepted by the
A
returning ,officer and the election was void due to noncompliance of the provisions of the Constitution and the
Representation of People Act, 1951. The first respondent
contended that the appellant had suppressed his dues
payable to the Government; the assets in the name of B
spouse and outstanding taxes thereof; the vehicle
owned by the spouse; and the property purchased in the
name of the firm of which he is the partner. The High
Court set aside the election of the appellant holding that
the nomination form of the appellant was defective and c
should not have been accepted by the returning officer.
Hence, the instant appeal.
The question which arise for consideration are
whether there is a substantial compliance in disclosing
the requisite information in the affidavits filed by the
D
appellant along with the nomination paper; and whether
non-disclosure of the information on account of said four
aspects has materially affected the result of the election?
Dismissing the appeal, the Court
HELD: 1.1. The reasons recorded by the High Court
on each item of non-disclosure is accepted. Its finding
about non-disclosure of the information qua all the
aspects is without blemif;h. There is a specific format in
which the information is to be given, which was not
adhered to. [Para 33] [294-8]
1.2. In the given facts of the case, non-disclosure of
E
F
the electricity dues, may· not be a serious lapse. No
doubt, the dues were outstanding, at the same time, there
G
was a bona fide dispute about the outstanding dues in
respect of the first electricity meter. It would have been
better on the part of the appellant to give the information
along with a note about the dispute, as suggested by the
H
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[2014] 7 S.C.R.
A High Court. It is still felt that when the appellant nurtured
belief in a bona fide manner that because of the said
dispute he is not to give the information about the
outstanding amount, as it had not become 'payable', this
should not be treated as a material lapse. Likewise, as far
B as the second electricity meter is concerned, it was in the
premises which was rented out to the tenants and the
dues were payable by the tenants in the first instance.
Again, in such circumstances, one can bona fide believe
that the tenants would pay the ou

## Text

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A
B
[2014] 7 S.C.R. 258
KISAN SHANKAR KATHORE
v.
ARUN DATIATRAY SAWANT & ORS
(Civil Appeal No. 4261 of 2007)
MAY 09, 2014
[SURINDER SINGH NIJJAR AND A.K. SIKRI, JJ.]
Representation of People Act, 1951 - s. 100(1)(d)(i) and
(iv) - Non-disclosure of information - Election petition by voter
C - Improper acceptance of returned candidate's nomination by
returning officer, despite suppression of material facts, thus,
election void - High Court set aside the election of returned
candidate - On appeal, held: Non-disclosure of the electricity
dues not a serious lapse, but non-disclosure of property and
D vehicle in the name of returned candidate's wife as also
returned candidate's interest/share in the partnership firm
major lapse - Thus, material information about the assets not
disclosed in the affidavits given by the returned candidate
along with the nomination form - There was not a substantial
E compliance in disclosing the requisite information in the
affidavits along with the nomination paper - Once it is found
that it was a case of improper acceptance, as there was
misinformation or suppression of material information, the
rejection can only be at a later date and appropriate stage
F would be in an election petition - When the court gives such
a finding which results in rejection, effect would be that such
candidate was not entitled to contest and the election is void,
otherwise, it would be an anomalous situation, which cannot
be countenanced - Thus, the order passed by High Court is
G upheld.
The appellant was declared successful candidate in I
the election of legislative assembly. The first respondent-/'
voter, filed an election petition uls. 100(1 )(d)(i) and (iv) of
the Representation of People Act, 1951 stating that the
H
258
KISAN SHANKAR KATHORE v. ARUN DATTATRAY
259
SA WANT
appellant's nomination was improperly accepted by the
A
returning ,officer and the election was void due to noncompliance of the provisions of the Constitution and the
Representation of People Act, 1951. The first respondent
contended that the appellant had suppressed his dues
payable to the Government; the assets in the name of B
spouse and outstanding taxes thereof; the vehicle
owned by the spouse; and the property purchased in the
name of the firm of which he is the partner. The High
Court set aside the election of the appellant holding that
the nomination form of the appellant was defective and c
should not have been accepted by the returning officer.
Hence, the instant appeal.
The question which arise for consideration are
whether there is a substantial compliance in disclosing
the requisite information in the affidavits filed by the
D
appellant along with the nomination paper; and whether
non-disclosure of the information on account of said four
aspects has materially affected the result of the election?
Dismissing the appeal, the Court
HELD: 1.1. The reasons recorded by the High Court
on each item of non-disclosure is accepted. Its finding
about non-disclosure of the information qua all the
aspects is without blemif;h. There is a specific format in
which the information is to be given, which was not
adhered to. [Para 33] [294-8]
1.2. In the given facts of the case, non-disclosure of
E
F
the electricity dues, may· not be a serious lapse. No
doubt, the dues were outstanding, at the same time, there
G
was a bona fide dispute about the outstanding dues in
respect of the first electricity meter. It would have been
better on the part of the appellant to give the information
along with a note about the dispute, as suggested by the
H
260
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[2014] 7 S.C.R.
A High Court. It is still felt that when the appellant nurtured
belief in a bona fide manner that because of the said
dispute he is not to give the information about the
outstanding amount, as it had not become 'payable', this
should not be treated as a material lapse. Likewise, as far
B as the second electricity meter is concerned, it was in the
premises which was rented out to the tenants and the
dues were payable by the tenants in the first instance.
Again, in such circumstances, one can bona fide believe
that the tenants would pay the outstanding amount. No
c doubt, if the tenants did not pay the amount the liability
would have been that of the owner, i.e. the appellant.
However, at the time of filing the nomination, the appellant
could not presume that the tenants would not pay the
amount and, therefore, it had become his liability. Same
0 is the position with regard to non-payment of a sum of
Rs.1,783/- as outstanding municipal dues, where there
was a genuine dispute as to revaluation and reassessment for the purpose of assessing the taxes was
yet to be undertaken. Having said so, it is clarified that it
would depend in the facts and circumstances of each
E case as to whether such a non-disclosure would amount
to material lapse or not. Thus, it is clarified that the said
observation in the facts of the instant case should not be
treated as having general application. [Para 34] [294-DH; 295-A-B]
F
1.3. On other non-di.sclosures, the case of the
appellant cannot be accepted. There is a clear case of
non-disclosure of bungalow No. 866 in the name of the
appellant's wife, which is a substantial lapse. So is the
G case about the non-disclosure of vehicle in the name of
appellant's wife. Likewise, non-disclosure of the
appellant's interest/share in the partnership firm is a very
serious and major lapse. On all these aspects, the
defence/explanation furnished by the appellant does not
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KISAN SHANKAR KATHORE v. ARUN DATIATRAY
261
SA WANT
inspire any confidence. It is simply an afterthought
A
attempt to wriggle out of the material lapse on the part of
the appellant in not disclosing the required information,
which was substantial. Therefore, in the affidavits given
by the appellant along with the nomination form, material
information about the assets was not disclosed and, s
thus, it is not possible to accept the submission of the
appellant that information contained in the affidavits be
treated as sufficient/substantial compliance .. [Para 35)
1£295-C-F]
1.4. A conjoint and combined reading of Association
C
for Democratic Reforms and People's Union for Civil
Liberties case clearly establishes that the main reason for
issuing directions by this Court and guidelines by the
Election Commission pursuant thereto is that the citizens
have fundamental right under Article 19(1 )(a) of the
D
Constitution of India to know about the candidates
contesting the elections and this is the primary reason
that casts a solemn obligation on these candidates to
furnish information regarding the criminal antecedents,
educational qualifications and assets held by the
E
candidate, his spouse and dependent children. It is on
that basis that not only Election Commission has issued
guidelines, but also prepared formats in which the
affidavits are to be filed. As a fortiorari, it follows that if
the required information as per the said format in respect
F
of the assets of the candidate, his wife and dependent
children is not given, it would amount to suppression/
non-disclosure. [Para 36) [295-H; 296-A-C)
Union of India v. Association for Democratic Reforms &
Anr. (2002) 5 SGC 294; People's Union for Civil Liberties
G
(PUCL) & Anr. v. Union of India & Anr. (2003) 4 SCC 399 -
explained.
1.5. When the information is given by a candidate in
the affidavit filed along with the nomination paper and
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[2014] 7 S.C.R.
A objections are raised thereto questioning the correctness
of the information or alleging that there is non-disclosure
of certain important information, it may not be possible
for the returning officer at that time to conduct a detailed
examination. Summary enquiry may not suffice. Instant
8 case demonstrates this. At the same time, it would not be
possible for the Returning Officer to reject the nomination
for want of verification about the allegations made by the
objector. In such a case, when ultimately it is proved that
it was a case of non-disclosure and either the affidavit
C was false or it did not contain complete information
leading to suppression, it can be held at that stage that
the nomination was improperly accepted. The counsel for
the Election Commission rightly submitted that such an
enquiry can be only at a later stage and the appropriate
0 stage would be in an election petition as in the instant
case, when the election is challenged. The grounds
stated in Section 36(2) are those which can be examined
there and then and on that basis the Returning Officer
would be in a position to reject the nomination. Likewise,
where the blanks are left in· an affidavit, nomination can
E be rejected there and then. In other cases where detailed
enquiry is needed, it would depend upon the outcome
thereof, in an election petition, as to whether the
nomination was properly accepted or it was a case of
improper acceptance. Once it is found that it was a case
F of improper acceptance, as there was misinformation or
suppression of material information, one can state that
question of rejection in such a case was only deferred
to a later date. When the Court gives such a finding,
which would have resulted in rejection, the effect would
G be same, namely, such a candidate was not entitled to
contest and the election is void. Otherwise, it would be
an anomalous -situation that even when criminal
proceedings under Section 125A of the Act can be
initiated and the selected candidate is criminally
H prosecuted and convicted, but the result of his election
KISAN SHANKAR KAIHORE v. ARUN DATTATRAY
263
SA WANT
cannot be questioned, cannot be countenanced. [Para
A
38] (297-E-H; 298-A-E]
Resurgence India v. Election Commission of India & Anr.
(2013) 11 Scale 348; Shaligram Shrivastava v. Naresh Singh
Patel (2003) 2 SCC 176; G.M. Siddheshwar v. Prasanna
B
Kumar (2013) 4 SCC 776 - referred to.
Case Law Reference:
(2002) s sec 294
Explained
Para 10, 36.
(2003) 4 sec 399
Explained
Para 10, 36.
(2013) 11 Scale 348
Referred to
Para 13, 37
(2003) 2 sec 11s
Referred to
Para 13
(2013) 4 sec 116
Referred to
Para 29
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4261 of 2007.
From the Judgment and Order dated 16.08.2007 in
Election Petition No. 10/2004 of the High Court of Bombay.
B. Adinaryan Rao, Venkteshwar Rao, Ravindra Keshavrao
Adsure, G Ananda Selvam for the Appellant.
Meenakshi Arora, Mohit D. Ram, Vasav Anatharaman,
Kiran Bhardwaj, Aman Ahluwalia, B.V. Balramdas (for B.
Krishna
Prasad)
for
the
Respondents
and
Respondent-In-Person.
The Judgment of the Court was delivered by
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F
A.K. SIKRI, J. 1. The appellant herein was the successful
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candidate in the election of legislative assembly, which he
contested from 56, Ambernath Constituency, Thane District,
Maharashtra. There were five candidates in the fray for which
the elections were held on October 13, 2004 and the results
were declared on October 16, 2004. After he was declared
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[2014] 7 S.C.R.
A elected, his election was challenged by the first respondent, who
is a voter in the said constituency. He filed the election petition
in the High Court of Judicature at Bombay stating that the
appellant's nomination had been improperly accepted by the
Returning Officer and the election was void due to nonB compliance of the provisions of the Constitution of India, the
Representation of the People Act, 1951 (hereinafter referred
to as 'the Act') as well as Rules and Orders framed under the
said Act.
2. The election petition was filed under Section 100(1 )(d)(i)
C and (iv) of the Act on the ground that in the nomination form
filled in by the appellant he had suppressed his dues payable
to the Government, suppressed the assets of his spouse and
also suppressed the information and assets of a partnership
. firm of which he is a partner. The appellant contested the said
D petition. Evidence was led. After hearing the arguments, the
High Court passed judgment dated August 16, 2007 accepting
the plea of the first respondent that the nomination form of the
appellant was defective and should not have been accepted
by the Returning Officer. Thus, while allowing the election
E petition and setting aside of the election of the appellant, the
F
G
H
High Court recorded the non-disclosure on following counts:
(a) Non-disclosure of dues to Maharashtra State Electricity
Board in respect of two service connections held by him
amounting to Rs. 79,200/- and Rs.66,250/-.
(b) The appellant failed to disclose the ownership of
Bungalow No. 866 and the taxes dues thereof amounting
to Rs.3,445/- owned by his wife.
(c) The appellant failed to disclose the particulars of the
vehicle MH-05-AC-55 owned by the wife.
(d) The appellant is guilty of non-disclosure of property
owned by firm Padmavati Developers of which the
appellant is a partner, which owns two plots of lands
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 265
SAWANT [A.K. SIKRI, J.]
measuring 1313 sq.mtrs. and 1292 sq.mts. in Survey No.
A
48, Hissa No. 9 of Mouze Kalyan, Taluka Ambarnath,
District Thane, Maharashtra.
Challenging the impugned judgment, the present statutory
appeal is filed, as provided under Section 116A of the Act.
8
3. We may state, at the outset, that there is no dispute on
facts, namely, the appellant had not disclosed certain
informations, as found by the High Court and noted above, in
his nomination form. Entire dispute rests on the issue as to
whether it was incumbent upon the appellant to have disclosed
C
such an information and non-disclosure thereof rendered his
nomination invalid and void. The nature of information given by
the appellant in his nomination form, on the basis of which the
appellant contends that it ought to have been treated as
substantial compliance, would be taken note of later at the
D
appropriate stage. We deem it appropriate to state the legal
position contained in the Act, Rules and Orders as well as the
judgments of this Court in order to understand as to whether
there was a substantial compliance by the appellant in the form
of information given by him or it amounted to non-disclosure of
E
the material information warranting rejection of his nomination.
4. Since the petition filed before the High Court was under
· Section 100(1 )(d)(i) and (iv), we first take note of these
provisions, which are to the following effect:
"100. Grounds for declaring election to be void. - (1)
Subject to the provisions of sub-section (2) if the High
Court is of opinion -
xx
xx
xx
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected -
(i) by the improper acceptance or any nomination, or
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xx
xx
xx
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act,
the High Court shall declare the election of the returned
candidate to be void."
5. Section 100(1 )(d) talks of result of election being
'materially affected' by improper acceptance, we would like to
c reproduce here Section 33(1) of the Act, which mandates filing
of a nomination paper completed in the prescribed form in
order to constitute it to be a valid nomination. It reads as under:
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"33. Presentation of nomination paper and
requirement for a valid nomination. - (1) On or before
the date appointed under clause (a) of section 3J) each
candidate shall, either in person or by his proposer,
between the hours of eleven o'clock in the forenoon and
three o'clock in the afternoon deliver to the returning-officer
at the place specified in this behalf in the notice issued
under section 31 a nomination paper completed in the
prescribed form and signed by the candidate and by an
elector of the constituency as proposer:
xx
xx
XX:'
6. Other relevant provisions are Sections 33A, 34, 35 and
36 of the Act, which are as under:
"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
H
imprisonment for two years or more in a pending
KISAN SHANKAR KATHORE v. ARLIN DATIATRAY
267
SAWANT [A.K. SIKRI, J.]
case in which a charge has been framed by the
A
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.
B
(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 C
prescribed form verifying the information specified in subsection (1).
(3) The returning officer shall, as soon as may be after the
furnishing of information to him under sub-section (1),
0
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."
xx
xx
xx
34. Deposits. - (1) A candidate shall not be deemed to
be duly nominated for election from a constituency unless
E
he deposits or causes to be deposited. -
F
(a)
in the case of an election from a Parliamentary
constituency, a sum of twenty-five thousand rupees
or where the candidate is a member of a
Scheduled Caste or Scheduled Tribe, a sum of
twelve thousand five hundred rupees; and
· G
(b)
in the case of an election from an Assembly or
Council constituency, a sum of ten thousand rupees
or where the candidate is a member of a
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[2014] 7 S.C.R.
Scheduled Caste or Scheduled Tribe, a sum of five
thousand rupees:
Provided that where a candidate has been nominated by
more than one nomination paper for election in the same
constituency, not more than one deposit shall be required
of him under this sub-section..
(2) Any sum required to be deposited under sub-section
(1) shall not be deemed to have been deposited under that
sub-section unless at the time of delivery of the nomination
paper under sub-section (1) or, as the case may be, subsection (1A) of section 33 the candidate has either
deposited or caused to be deposited that sum with the
returning officer in cash or enclosed with the nomination
paper a receipt showing that the said sum has been
deposited by him or on his behalf in the Reserve Bank of
' India or in a Government Treasury.
xx
xx
xx
35. Notice of nominations and the time and place for
E
their scrutiny. - The returning officer shall, on receiving
the r.omination paper under sub-section (1) or, as the case
may be, sub-section (1A) of section 33, inform the person
or persons delivering the same of the date, time and place
fixed for the scrutiny of nominations and shall enter on the
F
nomination paper its serial number, and shall sign thereon
a certificate stating the date on which and the hour at which
the nomination paper has been delivered to him; and shall,
as soon as may be thereafter, cause to be affixed in some
conspicuous place in his office a notice of the nomination
G
containing descriptions similar to those .contained in the
nomination paper, both of the candidate and of the
proposer.
36. Scrutiny of nomi'nation. - (1) On the date fixed for
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the sc'rutiny of nominations under section 30, the
KISAN SHANKAR KATHORE v. ARUN DATTATRAY 269
SAWANT [A.K. SIKRI, J.]
candidates, their election agents, one proposer of each
A
candidate, and one other person duly authorised 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
B
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
C
to any nomination and may, either on such objection or on
his own motion, after such summary inquiry, if any, as he
things necessary, reject any nomination on any of the
following grounds:-
(a)
that on the date fixed for the scrutiny of nominatio_ns
D
the candidate either is not qualified or is disqualified
for being chosen to fiil 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; or
E
(b)
that there has been a failure to comply with any of
F
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 subG
section (2) shall be deemed to authorise 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
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[2014] 7 S.C.R.
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 ~e 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,
KISAN SHANKAR KATHORE v. ARUN DATIATRAY
271
SAWANT [A.K. SIKRI, J.]
candidates whose nominations have been found valid, and
A
affix it to his notice board."
7. After having taken note of the aforesaid statutory
provisions, let us now proceed to discuss some of the important
judgments of this Court and to cull out legal principles therefrom
8
on the subject, which have a direct bearing on the issue of
disclosure of information.
8. First case that needs a mention, which is a milestone
and trigerred electoral reforms in this country, is Union oflndia
v. Association for Democratic Reforms & Anr., (2002) 5 SCC
C
294. In this case, the Court held that it was incumbent upon
every candidate, who is contesting election, to give information ·
about his assets and other affairs, which requirement is not only
essential part of fair and free elections, inasmuch as, every
voter has a right to know about these details of the candidates,. D
such a requirement is also covered by freedom of speech
granted under Article 19(1 )(a) of the Constitution of India. The
summing up the entire discussion in the judgment can be found
in the following passage:
"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
G
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
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fair election. The Constitution has taken care of leaving
scope for exercise of residuary power by the Commission
in its own right as a creature of the Constitution in the
infinite variety of situations that may emerge from time to
time in a large democracy, as every contingency coul~ not
be foreseen or anticipated by the enacted laws or the rules.
By issuing necessary directions, the Commission can fill
the vacuum till there is legislation on the subject. In Kanhiya
Lal Omar case (1985) 4 SCC 628 the Court construed the
expression "superintendence, direction and control" in
Article 324(1) and held that a direction may mean an order
.issued to a particular individual or a pre~ept which many
may have to follow and it may be a specific or a general
order and such phrase should be construed liberally
empowering the Election Commission to issue such
orders.
3. The word "elections" includes the entire process of
election which consists of several stages and it embraces
many steps, some of which may have an important bearing
on the process of choosing a candidate. Fair election
contemplates disclosure by the candidate of his past
including the assets held by him so as to give a proper
choice to the candidate according to his thinking and
opinion. As stated earlier, in Common Cause case,
(1996) 2 SCC 752 the Court dealt with a contention that
elections in the country are fought with the help of money
power which is gathered from black sources and once
elected to power, it becomes easy to collect tons of black
money, which is used for retaining power and for reelection. If on an affidavit a candidate is required to
disclose the assets held by him at the time of election, the
voter can d~cide whether he could be re-elected even in
case where he has collected tons of money.
Presuming, as contended by the learned Senior Counsel
Mr. Ashwani Kumar, that this condition may not be much
effective for breaking a vicious circle which has polluted
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the basic democracy in the country as the amount would
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be unaccounted. May be true, still this would have its own
effect as a step-in-aid and voters may not elect lawbreakers as law-makers and some flowers of democracy
may blossom.
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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 C
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.
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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
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and Political Rights, which is as under:
"(1) 6veryone shall have the right to hold opinions without
interference.
(2) Everyone shall have the right to freedom of expression;
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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."
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
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the public interest, this Court would have ample jurisdiction
under Article 32 read with Articles 141 and 142 of the
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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 law-breakers as law-makers.
9. On the basis of the aforesaid discussion, this Court
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which was to be given, spetling out the same in para 48 of the
judgment, which reads as under:
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"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 - 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.)
KISAN SHANKAR KATHORE v. ARUN DATTATRAY
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SAWANT [A.K. SIKRI, J.]
of a candidate and of his/her spouse and that of
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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."
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10. The judgment in Association for Democratic
Reforms led to amendment in the Act with the induction of
Section 33A (already reproduced above) as well as Section c
338 therein. Election Commission also laid down guidelines
in the year 2002. Insofar as Section 338 is concerned, it was
struck down by this Court in the case of People's Union for Civil
Liberties (PUCL) & Anr. v. Union of India & Anr., (2003) 4 SCC
399.
11. In order to bring the directions contained in the
aforesaid two judgments within the statutory framework, revised
guidelines were issued by the Election Commission on March
23, 2006. In para 5 of these guidelines, para 14 of the judgment
in Association for Democratic Reforms is reproduced.
Likewise, para 13 takes note of the directions given in the case
of People's Union for Civil Liberties. In para 15, it is noted
that the Supreme Court, while striking down Section 338 of the
Act, stated that earlier directions of Election Commission dated
June 28, 2002 would continue to operate subject to the aforementioned directions of the Court and, therefore, revised
directions had become necessary. In para 16, these directions
are issued in supersession of earlier directions dated June 28,
2002. Paras 1 and 3 of these guidelines/directions are relevant
for us, and, therefore, we reproduce the same as under:
"(1) Every candidate at the time of filing his nomination
paper for any election to the Council of State, House of
the People, Legislative Assembly of a State of the
Legislative Council of a State having such a council, shall
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furnish full and complete information in regard to the
matters specified by the Hon'ble Supreme Court and
quoted in paras 13 and 14 above, in an affidavit, the format
whereof is annexed hereto as Annexure-1 to this order.
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xx
xx
xx
(3) Non-furnishing of the affidavit by any candidate shall be
considered to be violation of the order of the Hon'ble
Supreme Court and the nomination of the candidate
concerned shall be liable to rejection by the returning officer
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at the time of scrutiny of nomination such non-furnishing of
the affidavit."
12. We would also like to reproduce para 17 of these
guidelines, which concerns the case at hand:
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"17. For the removal of doubt, it is hereby clarified that the
earlier direction contained in para 14(4) of the earlier order
dated 28th June, 2002, in so far as verification of assets
and liabilities by means of summary enquiry and rejection
of nomination paper on the ground of furnishing wrong
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information or suppressing material information is not
enforceable in pursuance of the order dated 13th March,
2003 of the Apex Court. It is further clarified that apart from
the affidavit Annexure-1 hereto referred to in para 16(1)
above, the candidate shall have to comply with the other
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requirements as spelt out in the Representation of the
People Act, 1951, as amended by the Representation of
the People (Third Amendment) Act, 2002 and the Conduct
of Election Rules, 1961, as amended by the Conduct of
Elections (Amendment) Rules, 2002."
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13. The meaning and scope of these guidelines came up
for discussion before this Court in Resurgence India v. Election
Commission of India & Anr., (2013) 11 Scale 348. That
judgment was rendered in a writ petition filed under Article 32
of the Constitution of India for issuance of specific directions
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SAWANT [A.K. SIKRI, J.]
to effectuate meaningful implementation of the judgments in
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jAssociation of Democratic Reforms, People's Union for
~Civil Liberties and also to direct the Election Commission to
make it compulsory for the Returning Officer to ensure that the
affidavits filed by the contestants are complete in all respects
and to reject the affidavits having blank particulars. This petition,
thus was filed taking note of the practice which had started
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'prevailing, namely, many candidates were leaving some of the
columns blank in their affidavits thereby omitting to provide the
required information. As per the petitioner in that case, in such
' an eventuality the Returning Officer should reject the nomination c
whereas the Union of India pleaded that it should be treated at
par with filing false affidavits and the candidate filing such an
affidavit should be prosecuted under Section 125A of the Act.
The Court took note of the provisions of Sections 33A, 36 and
125A of the Act and thereafter referred to the earlier three
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Judge Bench judgment of this Court in Sha/igram Shrivastava
v. Naresh Singh Patel, (2003) 2 SCC 176, wherein the Court
had discussed the power of rejecting the nomination paper by
the Returning Officer of a candidate filing the affidavit with
particulars left blank. The relevant discussion in this behalf is
in paras 15 and 16 of the said judgment, which read as under:
"15. Although, the grounds of contention may not be exactly
similar to the case on hand but the reasoning rendered in
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that verdict will come in aid for ariving at a decision in the
given case. In order to arrive at a conclusion in that case,
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this Court traversed through the objective behind filing the
proforma. The proforma mandated in that case was
required to be filed as to the necessary and relevant
information with regard to the candidate in the light of
Section 8 of the RP Act. This Court further held that at the
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time of scrutiny, the Returning Officer is entitled to satisfy
himself whether the candidate is qualified and not
disqualified, hence, the Returning Officer was authorized
to seek such information to be furnished at the time or
before scrutiny. It was further held that if the candidate fails
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to furnish such information and also absents himself at the
time of the scrutiny of the nomination papers, then he is
obviously avoiding a statutory inquiry being conducted by
the Returning Officer under Section 36(2) of the RP Act
relating to his being not qualified or disqualified in the light
of Section 8 of the RP Act. It is bound to result in defect of
a substantial character in the nomination. This Court further
held as under:
"17. In the case in hand the candidate had failed to furnish
such information as sought on the proforma given to him
and had also failed to be present personally or through his
representative at the time of scrutiny. The statutory duty/
power of Returning Officer for holding proper scrutiny of
nomination paper was rendered nugatory. No scrutiny of
the nomination paper could be made under Section 36(2)
of the Act in the light of Section 8 of the Act. It certainly
rendered the nomination paper suffering from defect of
substantial character and the Returning Officer was within
his rights in rejecting the same."
16. It is clear 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 impos"'ible for the Returning Officer to verify
whether the candidate is qualified or disqualified which
indeed will frustrate the object behind filing the same. In
concise, this Court in Shaligram (supra) evaluated the
purpose behind filing the proforma for advancing latitude
to the Returning Officers to reject the nomination papers."
14. The legal position is, thereafter, summarized in para
27, which becomes important for our purpose and, therefore,
we produce the same hereunder:
KISAN SHANKAR KATHORE v. ARUN DATIATRAY
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SAWANT [A.K SIKRI, J.]
"27. What emerges from the above discussion can be
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summarized in the form of following difections:
(i) The voter has the elementary right to know full particulars
of a candidate who is to represent him in the Parliament/
Assemblies and such right to get information is universally
8
recognized. Thus, it is held that right to know about the
candidate is a natural right flowing from the concept of
democracy and is an integral part of Article 19(1)(a) of the
Constitution.
(ii) The ultimate purpose of filing of affidavit along with the
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nomination paper is to effectuate the fundamental right of
the citizens under Article 19(1 )(a) of the Constitution of
India. The citizens are supposed to have the necessary
information at the time of filing of nomination paper and
for that purpose, the Returning Officer can very well compel
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a candidate to furnish the relevant information.
(iii) Filing of affidavit with blank particulars will render the
affidavit nugatory.
(iv) It is the duty of the Returning Officer to check whether
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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'
of the citizens. If a candidate fails to fill the blanks even
after the reminder by the Returning Officer, the nomination
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paper is fit to be rejected.