JUDGMENT
Pradeep Nandrajog, J.
1. Jaspal Singh was a contesting candidate for the election to the Delhi Legislative Assembly held in December 2003. He contested from Tilak Nagar Assembly Constituency (AC-14). Sudarshan Khatri claims to be a voter in the said Assembly Constituency. One S. Ranjit Singh son of late Gopal Singh R/o 20B/78A, Tilak Nagar, New Delhi had filed a nomination paper to contest the ensuing elections from said Assembly Constituency. Vide order dated 15.11.2003 the returning officer rejected the nomination paper filed by S. Ranjit Singh by passing the following order:
I have examined the nomination paper in accordance with Section 36 of The Representation of the People Act, 1951 and decided as follows:
Nomination paper examined with its enclosures and following deficiencies noted:
(i) Affidavit as prescribed by ECI not complete and not attested by Notary on all the pages and verification also unattested.
(ii) In affidavit on form 26, candidate did not declare in para 2 whether he is/not convicted of an offence.
On the above ground, nomination paper is rejected.
2. No evidence has been recorded in the election petitions for the reason learned Counsel for the parties conceded that the issue may be decided treating that order dated 15.11.2003 as noted hereinabove was indeed passed by the returning officer as also that the affidavit filed by S. Ranjit Singh did not comply with the requirement of para 2 of the affidavit prescribed as per Form No. 26 prescribed under Rule 4A of the Conduct of Elections Rules 1961. Learned Counsel for the parties jointly submitted that the issue may be decided with reference to Section 100(1)(c) of the R.P. Act 1951 as per which the election of a returned candidate is liable to be declared void on account of an improper rejection of a nomination paper filed by a person desirous of contesting the election.
3. The controversy between the parties needs to be adjudicated with reference to the provisions of Section 33, 33A and Section 36 of the R.P. Act 1951 read with Rule 4A of the Conduct of Elections Rules 1961 and Form 26 prescribed under the Rules pursuant to Rule 4A aforesaid.
4. At the outset it may be noted that Section 33A of the R.P. Act 1951 was inserted in the statute book by Act No. 72 of 2002 with effect from 24.8.2002. The said Section reads 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 there under, in his nomination paper delivered under Sub-section (1) of Section 33, also furnish the information as to whether:
(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction;
(ii) he has been convicted of an offence other than any offence referred to in Sub-section (1) or Sub-section (2), or covered in Sub-section (3), of Section 8 and sentenced to imprisonment for one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under Sub-section (1) of Section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form 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 Sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under Sub-section (2), at a conspicuous place at his office for the information of the electors relating to a constituency for which the nomination paper is delivered.
5. Section 33 of the R.P. Act 1951 as amended by Act No. 27 of 1956 reads as under:
33: Presentation of nomination paper and requirements for a valid nomination.-
(1) On or before the date appointed under Clause (a) of Section 30 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:
Provided that a candidate not set up by a recognised political party, shall not be deemed to be duly nominated for election from a constituency unless the nomination paper is subscribed by ten proposers being electors of the constituency:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday:
Provided also that in the case a local authorities’ constituency, graduates’ constituency or teachers’ constituency, the reference to “an elector of the constituency as proposer” shall be construed as a reference to ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers.
(1A) Notwithstanding anything contained in Sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to be the Legislative Assembly of that State only constituted under the Constitution), the nomination paper to be delivered to the returning officer shall be in such form and manner as may be prescribed:
Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and-
(a) in the case of a seat reserved for Sikkimese of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;
(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;
(c) in the case of a seat reserved for Sikkimese of Nepali origin, by an elector of the constituency as proposer:
Provided further that no nomination paper shall be delivered to the returning officer on a day which is a public holiday.
(2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.
(3) Where the candidate is a person who, having held any office referred to in Section 9 has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.
(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:
Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.
(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper:
Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the returning officer for election in the same constituency.
(7) Notwithstanding anything contained in Sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election.-
(a) in the case of a general election to the House of the People (whether or not held simultaneously from all Parliamentary constituencies), from more than two Parliamentary constituencies;
(b) in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies), from more than two Assembly constituencies in that State;
(c) in the case of a biennial election to the Legislative Council of a State having such Council, from more than two Council constituencies in the State;
(d) in the case of a biennial election to the Council of States for filling two or more seats allotted to a State, for filling more than two such seats;
(e) in the case of bye-elections to the House of the People from two or more Parliamentary constituencies which are held simultaneously, from more than two such Parliamentary constituencies;
(f) in the case of bye-elections to the Legislative Assembly of a State from two or more Assembly constituencies which are held simultaneously, from more than two such Assembly constituencies;
(g) in the case of bye-elections to the Council of States for filling two or more seats allotted to a State, which are held simultaneously, for filling more than two such seats;
(h) in the case of bye-elections to the Legislative Council of a State having such Council from two or more Council constituencies which are held simultaneously, from more than two such Council constituencies.
Explanation.-For the purposes of this sub-section, two or more bye-elections shall be deemed to be held simultaneously where the notification calling such bye-elections are issued by the Election Commission under Sections 147, 149, 150 or, as the case may be, 151 on the same date.
6. Section 36 of the R.P. Act 1951 reads as under:
36. Scrutiny of Nominations: (1) On the date fixed for the SCRUTINY of nominations under Section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly 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 which have been delivered within the time and in the manner laid down in Section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds:
(a) that on the date fixed for the SCRUTINY of nominations the candidate] either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely:
Articles 84, 102, 173 and 191,
Part II of this Act and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963) or
(b) that there has been a failure to comply with any of the provisions of Section 33 or Section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.
(3) Nothing contained in Clause (b) or Clause (c) of Sub-section (2) shall be deemed to 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 nomination paper in respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
(5) The returning officer shall hold the SCRUTINY on the date appointed in this behalf under Clause (b) of Section 30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:
Provided that in case an objection is raised by the returning officer or is made by any other person] the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for SCRUTINY, and the returning officer shall record his decision on the date to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, concidates whose nominations have been found valid, and affix it to his notice board.
7. The Conduct of Elections Rules 1961 give teeth to the provisions of the R.P. Act 1951. Pertaining to the nomination paper required to be presented under Section 33, Rule 4 of the Conduct of Elections Rules 1961 supplements, by requiring that the nomination paper presented under Section 33 shall be as per Forms 2A to 2E as may be appropriate.
8. By notification No. SO 935 (E) dated 8.9.2002 Rule 4A was inserted in the Conduct of Elections Rules 1961. Rule 4A reads as under:
4A. Form of affidavit to be filed at the time of delivering nomination paper – 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 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26.
9. Conceding that the affidavit filed by S. Ranjit Singh was not as per the stipulated Form No. 26 and hence not in compliance with Rule 4A of the Conduct of Elections Rules 1961, consequently Section 33A of the R.P. Act 1951 was not complied with, Sh. N.Safaya learned Counsel for the petitioners submitted that the right to reject a nomination paper vested in the returning officer under Section 36 of the R.P. Act 1951 and that a nomination paper could be rejected only on the grounds stipulated in Clause a, b and c of Sub-section 2 of Section 36 of the R.P. Act 1951. Counsel submitted that non compliance of Section 33A of the R.P. Act 1951 or of Rule 4A of the Conduct of Elections Rules 1961 was not a ground available under any of the clauses of sub Section 2 of Section 36 of the R.P. Act 1951 to reject a nomination paper. Counsel submitted that the penalty prescribed for furnishing incorrect, concealing or failure to furnish information relating to Section 33A was as stipulated under Section 125A of the R.P. Act 1951. It was urged that it is settled law that where consequence of violation of a statutory provision are enshrined in the statute, for violation of the statute, only consequences which can flow are the ones which are stipulated as a consequence in the statute and no more.
10. Per contra, Sh. Parag P. Tripathi learned senior Counsel for the respondent urged that the legislative history of Section 33A of the R.P. Act 1951 and introduction of Rule 4A of the Conduct of Elections Rules 1961 requires a purposive interpretation to be given to the applicable provisions of the R.P. Act 1951. Additionally, counsel submitted that the directive issued by the election commission vide order No. 3/ER/2002/JS-II/Vol.-III dated 28.6.2002 had also to be kept in mind as the source of the power of the returning officer to reject the nomination paper filed by S. Ranjit Singh, being not in compliance with Rule 4A of the Conduct of Elections Rules 1961, in that, there was a failure to furnish complete information as required by the affidavit prescribed vide Form No. 26 of the Conduct of Elections Rules 1961. Pertaining to the consequences of filing false or incomplete declaration as stipulated under Section 125A of the R.P. Act 1951, counsel submitted that said Section provided for a post election consequence and was an additional penal provision, meaning thereby, the span of the power of the returning officer to reject an incomplete nomination paper was not curtailed by Section 125A of the R.P. Act 1951.
11. Let me begin with the history leading to the insertion of Section 33A in the R.P. Act 1951 with a consequential amendment by inserting Rule 4A in the Conduct of Elections Rules 1961 accompanied by insertion of Form No. 26 in the Conduct of Elections Rules 1961.
12. In its 170th report, the Law Commission had made a recommendation to make suitable amendments in the R.P. Act 1951. The Law Commission had noted a subversion in the Indian Electoral System by criminalization thereof. Since neither the Union Government nor the Union Parliament was taking cognizance of the report filed by the Law Commission, the Association of Democratic Reforms filed a writ petition in the Delhi High Court for direction to the respondents imp leaded in the writ petition to implement the recommendations made by the Law Commission in its 170th Report and to make necessary changes under Rule 4 of the Conduct of Election Rules, 1961. It was pointed out that Law Commission of India had, at the request of Government of India, undertaken comprehensive study of the measures required to expedite hearing of election petitions and to have a thorough review of the Representation of the People Act, 1951 so as to make the electoral process more fair, transparent and equitable and to reduce the distortions and evils that had crept into the Indian electoral system and to identify the areas where the legal provisions required strengthening and improvement. It was pointed out that Law Commission has made recommendation for debarring a candidate from contesting an election if charges have been framed against him by a Court in respect of certain offences and necessity for a candidate seeking to contest election to furnish details regarding criminal cases if any, pending against him. It was also suggested that true and correct statement of assets owned by the candidate his/her spouse and dependant relations should also be disclosed. Reference was also made to the report of the Vohra Commission which had also recommended on the similar lines as the Law Commission. It was contended that despite the Reports of the Law Commission and Vohra Committee, successive governments have failed to take any action and, therefore, petition was filed for implementation of the said reports and for a direction to the Election Commission to make mandatory for every candidate to provide information by amending Form 2-A to 2-E prescribed under the Conduct of Election Rules, 1961.
13. After hearing the parties, the Delhi High Court by judgment and order dated 2nd November, 2000 held that it is the function of the Parliament to make necessary amendments in the Representation of the People Act, 1951 or the Election Rules and, therefore the Court cannot pass any order, as prayed, for amending the Act or the Rules.
14. However, the Delhi High Court considered whether or not an elector, a citizen of the country, has a fundamental right to receive the information regarding the criminal activities of a candidate to the Lok Sabha or Legislative Assembly for making an estimate for himself as to whether the person who is contesting the election has a background making him worthy of his vote, by peeping into the past of the candidate. After considering the relevant submissions and the reports as well as the say of Election Commission, the Delhi High Court held that for making a right choice, it is essential that the past of the candidate should not be kept in the dark as it is not in the interest of the democracy and well being of the country. The Court directed the Election Commission to secure to the voters the following information pertaining to each of the candidates contesting election to the Parliament and to the State Legislative:
I Whether the candidate is accused of any offence(s) punishable with imprisonment? If so, the details thereof.
II Assets possessed by a candidate, his or her spouse and dependant relations?
III Facts giving insight to candidate’s competence, capacity and suitability for acting as parliamentarian or legislator including details of his/her educational qualifications;
IV 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.
15. Accordingly, directions were issued by the Delhi High Court to the Election Commission to issue administrative instructions/guidelines to give effect to its decision.
16. Aggrieved by the said judgment and order dated 2.11.2000 passed by the Delhi High Court, Union of India and Indian National Congress preferred an appeal before the Hon’ble Supreme Court. Further, People’s Union for Civil Liberties filed Writ Petition under Article 32 of the Constitution praying that writ, order or direction be issued to the respondents–(a) to bring in such measures which provide for declaration of assets by the candidate for the elections and for such mandatory declaration every year during the tenure as an elected representative as MP/MLA; (b) to bring in such measures which provide for declaration by the candidate contesting election whether any charge in respect of any offence has been framed against him/her, and (c) to frame such guidelines under Article 141 of the Constitution by taking into considering 170th Report of Law Commission of India.
17. The challenge to the decision of the Delhi High Court was repelled by the Hon’ble Supreme Court in the decision reported as Union of India v. Association of Democratic Reforms and Anr. . The Hon’ble Supreme Court posed the question: whether in a nation wedded to republican and democratic form of government, where election as a Member of Parliament or as a Member of a Legislative Assembly is of utmost importance for governance of the country, do voters have a right to know the relevant particulars of the candidates before casting their votes. Further connected question considered by the Hon’ble Supreme Court was whether the High Court had jurisdiction under Article 226 of the Constitution of India to issue directions to the Election Commission to frame appropriate guidelines in this regard.
18. On behalf of Union of India it was argued that till suitable amendments are made in the Representation of People’s Act 1951 and the Conduct of Elections Rules 1961, the High Court should not have given any direction to the Election Commission. Reference was made to various provisions of the Representation of People’s Act 1951 and it was submitted that an elaborate procedure is prescribed under the Act for presentation of nomination paper and requirements for a valid nomination. That it is for the political parties to decide whether such amendments should be brought and carried out in the Act and the Rules. That as the Act or the Rules nowhere disqualify a candidate for non-disclosure of the assets or pending charge in a criminal case and, therefore, directions given by the High Court would be of no consequence and such directions ought not to have been issued.
19. Supplementing the aforesaid submission Indian National Congress argued that the Constituent Assembly had discussed and negatived requirement of educational qualification and possession of the assets to contest election. That similarly prescribing of properly qualification for the candidates to contest election was also negatived by the Constituent Assembly. That therefore furnishing of information regarding assets and educational qualification of a candidate is not at all relevant for contesting election and even for casting votes. That a delicate balance is required to be maintained with regard to the jurisdiction of the Parliament and that of Courts and once the Parliament has not amended the Act or the Rules despite the recommendation made by the Law Commission or the report submitted by the Vohra Committee, there was no question of giving any direction by the High Court to the Election Commission.
20. The Election Commission supported the order of the High Court in so far it issued directions pertaining to pending criminal cases, assets and educational qualifications.
21. After noting the respective contentions of the parties, Hon’ble Supreme Court posed following two questions to be answered:
I Whether Election Commission is empowered to issue directions as ordered by the High Court?
II Whether a voter – a citizen of this country – has right to get relevant information, such as, assets. qualification and involvement in offence for being educated and informed for judging the suitability of a candidate contesting election as MP or MLA?
22. After noting the case laws on the subject, Hon’ble Supreme Court answered the afore-noted two questions as under:
To sum up the legal and constitutional position with 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.
2. The limitation on plenary character of power is when the 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. 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 could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar’s case, the Court construed the expressions “superintendence, direction and control” in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which 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 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 (supra), 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 re-election. If on affidavit a candidate is required to disclose the assets held by him at the time of election, voter can decide whether he could be re-elected been in case where he has collected tons of money
Presuming, as contended by the learned senior Counsel Mr. Ashwini Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. May be true, still this would have its own effect as a step-in-aid voters may not elect law-breakers as law-makers and some flowers of democracy may blossom.
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 natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant of 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.
6. Cumulative reading of 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 Article 141 and 142 of 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. Voters’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 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.
23. So holding, Hon’ble Supreme Court held that the directions issued by the High Court were neither unjustified nor beyond its jurisdiction. However, Hon’ble Supreme Court modified the directions issued by the Delhi High Court as follows:
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 balances etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.
(5) The educational qualifications of the candidate.
24. After the Hon’ble Supreme Court rendered its opinion on 2.5.2002, the representation of the People (3rd Amendment) Act 2002 was promulgated. Simultaneously Rule 4A was inserted in the Conduct of Elections Rules 1961 as also Form No. 26 prescribing the affidavit required to be filed by a candidate along with the nomination paper was introduced in the Rules.
25. Section 33A as also Section 33B as also Section 125A was introduced in the R.P. Act 1951.
26. While amending the statute, the legislature did not give full effect to complete directions issued by the Hon’ble Supreme Court in its decision reported as UOI v. Association for Democratic Reforms and Anr. This led to another round of litigation where vires of Section 33 of the R.P. Act 1951 was challenged.
27. The challenge succeeded. Section 33B of the R.P. Act 1951 was struck down.
28. The said decision of the Hon’ble Supreme Court is reported as Peoples Union for Civil Liberties and Anr. v. UOI and Anr.
29. Relevant for the purpose of the instant dispute is a reference to an office order issued by Election Commission being order No. 3/ER/2002/JS-II/Vol.-III dated 28.6.2002. The aforesaid direction was issued by the Election Commission in implementation of the decision of the Delhi High Court.
30. The office order under reference reads as under:
Furnishing of any wrong or incomplete information or suppression of any material information by any candidate in or from the said affidavit may also result in the rejection of his nomination paper where such wrong or incomplete information or suppression of material information is considered by the Returning Officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him:
Provided that only such information shall be considered to be wrong or incomplete or amounting to suppression of material information as is capable of easy verification by the Returning Officer by reference to documentary proof adduced before him the summary inquiry conducted by him at the time scrutiny of nominations under Section 36(2) of the Representation of the People Act, 1951, and only the information so verified shall be taken into account by him for further consideration of the question whether the same is a defect of substantial character.
31. Though not a subject matter of a direct challenge before the Hon’ble Supreme Court, taking note of the order dated 28.6.2002, in para 73 of its report in the decision reported as 2003 (4) SCC 399 People Union for Civil Liberties and Anr. v. UOI and Anr. their Lordships of the Hon’ble Supreme Court opined as under:
73. While no exception can be taken to the insistence of affidavit with regard to the matter specified in the judgment in Assn. For Democratic Reforms Case the direction to reject the nomination paper for furnishing wrong information or concealing material information and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be justified. In the case of assets and liabilities, it would be very difficult for the Returning Officer to consider the truth or otherwise of the details furnished with reference to the “documentary proof”. Very often, in such matters the documentary proof may not be clinching and the candidate concerned may be handicapped to rebut the allegation then and there. If sufficient time is provided, he may be able to produce proof to contradict the objector’s version. It is true that the aforesaid directions issued by the Election Commission are not under challenge but at the same time prima facie it appear that the Election Commission is required to revise its instructions in the light of directions issued in Assn. For Democratic Reforms Case and as provided under the Representation of the Peoples Act and its Third Amendment.
32. A statute is an edict of the Legislature and the conventional way of interpreting or construing a statute is to seek the ‘intention’ of its maker. A statute is to be construed according “to the intent of those who make it” and “the duty of the judicature is to act upon the true intention of the Legislature – the means or sententia legis”.
33. The intention of the Legislature assimilates two aspects: in one aspect it carries the concept of ‘meaning’ i.e. what the words mean and in another aspect, it conveys the concept of ‘purpose and object’ or the ‘reason and spirit’ pervading through the Statute. The process of construing intention of the Legislature therefore combines both literal and purposive approaches.
34. The tussle between the literal and purposive approaches is well-highlighted in the following observations of Lord Millet:
No draftsmen can envisage all the circumstances which may possibly arise. From time to time, therefore, events occur which are within the plain words of the statute yet are outside its evident purpose and vice versa. This is the battle ground on which are fought the battle between the literal constructionists and the purposive constructionists. (‘Construing Statutes’ (1999) 20 Statute Law Review, 107)
35. In the decision reported as Lehigh Valley Coal Co. v. Yensavage 218 Fed 547 Justice Learned Hand observed as under:
Statutes should not be construed as theorems of Euclid but with some imagination of the purposes which lie behind them.
36. To the same effect are the following observations of Justice Frankfurter which were noted with approval by the Hon’ble Supreme Court in the decision reported as United Bank of India, Calcutta v. Abhijit Tea Co. :
Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose (‘Some Reflections on the Reading of Statutes’ 47 Columbia LR 527)
37. In the decision reported as R (On the application of Quintavalle) v. Secretary (2003) All ER 113 Lord Bingham observed as under:
Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish or effect some improvement in the national life. The Court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of a statute as a whole and statute as a whole should be read in the historical context of the situation which led to its enactment.
38. In the decision reported as Reserve Bank of India v. Peerless General Finance & Investment Co. , it was observed as under:
Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.
39. Importance of ‘purposive interpretation’ was highlighted by the Hon’ble Supreme Court in the decision reported as Organo Chemical Industries and Anr v. Union of India AIR 1979 SC 1803. In said decision, it was observed as under:
Each word, phrase or sentence is to be considered in the light of general purpose of the Act itself. A bare mechanical interpretation of the words devoid of concept or purpose will reduce most of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole.
40. In the decision reported as Seaford Court Estates Ltd. v. Asher [1949] 2 All. E.R. 155 at 164. Lord Denning L.J. observed:
When a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament…and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature…. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they should have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven but he can and should iron out the creases.
41. As observed as by Hon’ble Justice Krishna Iyer in the decision reported as Chairman, Board of Mining Examination & Chief Inspector of Mines v. Ramjee to be literal in meaning is to see the skin and miss the soul. The judicial key to construction is the composite perception of the ‘deha’ and ‘dehi’ of the provision.
42. Noting that the literal interpretation would lead to an anomalous situation, the Hon’ble Supreme Court in under-noted judgments preferred purposive interpretation over literal interpretation while interpreting a statute/provision:
I Union of India and Ors v. Filip Tiago De Gama of Vedem Vasco De Gama .
II State Bank of Travancore v. Mohammed Mohammed Khan .
III Surjit Singh Kalra v. Union of India .
IV Directorate of Enforcement v. Deepak Mahajan and Anr. AIR 1999 SC 1775.
V Hameedia Hardware Stores v. B. Mohan Lal (1998) 2 SCC 513.
VI O.S. Singh v. Union of India .
VII Union of India v. Hansoli Devi .
43. Keeping in view the legislative history leading to the incorporation of Section 33A of the R.P. Act 1951, Rule 4A of the Conduct of Elections Rules 1961 and Form 26 to the said Rules, it is apparent that the declaration required (with contents) under Section 33A is mandatory as said information has been held to be the right to know of each voter. Indeed in the decision reported as UOI v. Association of Democratic Reforms and Anr. it was held that right to get information in democracy is recognized all throughout and it is natural right flowing from the concept of democracy. It was further held that Article 19(1)(a) of the Constitution provides for freedom of speech and expression and that voter’s speech or expression in case of election would include casting of votes, that is to say, voters speak or express by casting votes and for this purpose the information about the candidates is a must.
44. The use of the word “shall” in Section 33A of the R.P. Act 1951 also guides to the mandatory character of the legislative provision.
45. To construe Section 33A of the R.P. Act 1951 in any other manner would run contrary to the ratio of the decision of the Hon’ble Supreme Court in decision reported as UOI v. Association of Democratic Reforms and Anr. .
46. It is true that it was desirable to amend Section 36 of the R.P. Act 1951 when Section 33A was inserted in the statute book and expressly provide for a rejection of a nomination paper which did not comply with Section 33A. But the problem at hand can be looked at from another angle.
47. A nomination paper is a nomination paper properly so called when it complies with the requirements of Section 33 and 33A of the R.P. Act 1951. A nomination paper not in compliance thereof is a nomination paper improperly so called. It is no nomination paper in the eyes of law. Right to be a candidate at an election commences by filing a nomination paper, which has to be as per law.
48. Where a statute prescribes the manner in which an act can be performed, the act can be performed in the manner prescribed and in no other way.
49. Where the proforma of an application is statutorily prescribed and requirement of attachments are also statutorily prescribed and are mandatory, the application has to be as per the proforma and necessary attachments have to be annexed, failing which the application is no application in the eyes of the law.
50. In exercise of it’s plenary power of superintendence, control and regulation of elections under Article 324 of the Constitution of India the Election Commission issued the directions to the returning officers vide order No. 3/ER/2002/JS-II/Vol.III dated 28.6.2002. The order mandates to the returning officers to reject nomination papers not complying with the said directive. Cognizance of the directive was taken by the Hon’ble Supreme Court in the decision reported as People Union for Civil Liberties v. UOI. The Hon’ble Supreme Court categorically held that no exception can be taken to the insistence of affidavit with regard to the matter specified in the judgment in Association for Democratic Reforms case.
51. Thus purposively read, it has to be held that non compliance with Section 33A of the R.P. Act 1951 and Rules 4A of the Conduct of Elections Rules 1961 renders a nomination paper a nomination paper improperly so called and hence liable to be rejected.
52. That filing false or incomplete affidavit of disclosure is made punishable under Section 125A of the R.P. Act 1951 is also a pointer to it’s mandatory character.
53. The argument that the only penalty of not complying with Section 33A of the R.P. Act 1951 is as prescribed under Section 125A of the R.P. Act 1951 holds no water as Section 125A operates in the post electoral process whereas issue of accepting or rejecting a nomination paper has to be dealt with in relation to the power to be exercised when a nomination paper is received.
54. I find no merits in the petitions.
55. Both are dismissed.
56. Cost to follow.