Nand Kishore Garg v. Jitender Singh Tomar & Ors.

1. The counsel for the respondent no.1/applicant states that this application though filed under Section 151 of the Code of Civil Procedure, 1908 (CPC) be treated as one under Order VII Rule 11 of the CPC.

2. The application seeks summary dismissal of the Election Petition as having been filed in abuse of the process of law and alternatively seeks deferment of hearing of this Election Petition in view of pendency of 2016:DHC:6676 W.P.(C) No.1056/2015 and till the disposal of criminal proceedings in relation to First Information Report (FIR) No.605/2015.

3. The counsel for the respondent no.1/applicant has not addressed any arguments. After hearing the counsel for the petitioner/non-applicant and by referring to my judgment in Nand Ram Bagri Vs. Jai Kishan 200 (2013) DLT 402 and against which no appeal appears to have been preferred, the application was dismissed. However subsequently the senior counsel for the respondent no.1/applicant mentioned the matter and sought an opportunity to argue and was permitted to argue on the following day. After completion of the hearing, this order is being released on 7th November, 2016 though dated 21st September, 2016.

4. The petitioner/non-applicant, being the unsuccessful candidate in the election from Tri Nagar Constituency of Delhi Legislative Assembly in the polls held on 7th February, 2015 has filed this petition seeking setting aside of the result of the election declaring respondent no.1/applicant successful, on the ground of the respondent no.1/applicant having falsely declared himself at the time of filing nomination as a Law Graduate.

5. The respondent no.1/applicant, as aforesaid, by this application seeks summary dismissal of the Election Petition and in the alternative deferment of the hearing thereof pleading (i) that furnishing of wrong information with the nomination form does not constitute a ground for setting aside of the election; (ii) that there is no material on record to show that the result of the election was materially affected by the declaration, even if wrong; (iii) that the respondent no.1/applicant in an earlier election also had declared himself to be a Law Graduate and though the petitioner/non-applicant had contested against the respondent no.1/applicant in that election also but not raised any objection; (iv) that on similar grounds W.P.(C) No.1056/2015 filed by some other person is pending; (v) that on similar grounds FIR No.605/2015 of Police Station Hauz Khas, New Delhi has been lodged against the respondent no.1/applicant and the investigation is underway; and, (vi) that proceedings in this petition before the investigation and prosecution if any culminates would cause serious prejudice to the respondent no.1/applicant.

6. I have in Nand Ram Bagri supra held (i) that the contention, that the only consequence of falsehood, misrepresentation and suppression in the affidavit in Form 26 filed along with the Nomination Form can be under Section 125A of the Representation of People Act, 1951 (RP Act) i.e. of attracting punishment with imprisonment as provided therein, cannot be accepted; (ii) that the reason which prevailed with the Supreme Court in Union of India Vs. Association for Democratic Reforms (2002) 5 SCC 294 for requiring such disclosure was not to punish a candidate for wrong disclosure but to vest the voters with a right to elect on the basis of antecedents, past performance, educational qualifications etc. of a candidate and all which was held to be essential for the health of democracy and fair election and to maintain purity of elections; (iii) logically, if the disclosure is false, the election in pursuance thereto would be an impure one; (iv) that it thus cannot be sustained that the only consequence of an impure election is to punish the elected candidate with imprisonment, while allowing him to continue as the elected representative; (v) to hold so would again, applying the reasoning given by the Supreme Court in Association for Democratic Reforms supra, would be bad for the health of democracy and fair elections;

(vi) that the common theme running in Section 123 of the RP Act defining corrupt practices on commission whereof by a returned candidate an election under Section 100(1)(b) of the RP Act becomes void, is of interference with the fair choice to be made by the electorate; (vii) it is for this reason that bribery and exercise of undue influence have been deemed to be corrupt practice; (viii) furnishing of wrong information would res ipsa loquitur be undue influence within the meaning of Section 123(2) of the RP Act; (ix) that the argument that there being no corresponding change in Section 100 or Section 123 of the RP Act pursuant to the amendments of the year 2002 in the RP Act and the Conduct of Elections Rules, the violation of the said amendments would not be a ground for declaration of a election to be void is to be noted to be rejected; (x) the contention before the Supreme Court in Association for Democratic Reforms, that till suitable amendments are made in the RP Act and the Rules, directions should not be issued and that it is for the political parties to decide whether such amendments should be brought and carried out in the RP Act and the Rules which nowhere disqualify a candidate for non disclosure and that the directions would thus be of no consequence, was negatived and it was held that courts have ample powers to make orders which have the effect of law and if need be by issuing necessary directions, to fill the vacuum, till such time the Legislature steps in to cover the gap; (xi) it was further held that the members of a democratic society should be sufficiently informed so that they may take intelligently, the decisions which may affect themselves and this would include their decision of casting votes in favour of a particular candidate and that disclosure by the candidate of such information would strengthen the voters in taking appropriate decision of casting their votes; (xii) to accept that a falsity, suppression or misrepresentation in the disclosure would not affect the outcome / result of a election would defeat the very purpose of the vital change brought about by Association for Democratic Reforms and would render the said judgment otiose and hollow; (xiii) that it is virtually impossible to adjudicate the effect of such falsehood/misrepresentation/suppression; and, (xiv) that unless the effect of falsehood is read into Section 100 and Section 123, the amendment of the RP Act and the Rules would remain impotent.

7. Supreme Court since then in Kisan Shankar Kathore Vs. Arun Dattatray Sawant (2014) 14 SCC 162 has held that when the information is given by a candidate in the affidavit filed along with the nomination paper and 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; it would thus not be possible for the Returning Officer to reject the nomination for want of verification of 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 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; once it is found that it was a case 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 be same, namely, such a candidate was not entitled to contest and the election is void. It was also held that otherwise, it would be an anomalous situation that even when criminal proceedings under Section 125A of the RP Act can be initiated and the selected candidate is criminally prosecuted and convicted, but the result of his election cannot be questioned - this cannot be countenanced.

8. Supreme Court again had occasion to deal with the said question in Krishnamoorthy Vs. Sivakumar (2015) 3 SCC 467 and held (i) that the right to contest an election is a plain and simple statutory right and the election of an elected candidate can only be declared null and void, regard being had to the grounds provided in the statutory enactment; (ii) the ground of ‘undue influence’ is a part of corrupt practice under Section 123 of the RP Act; ‘undue influence’ is a facet of corrupt practice; (iii) Section 123(2) of the RP Act defines ‘undue influence’, more or less, in the same language as in Section 171-C of the Indian Penal Code, 1860 except the words "direct or indirect" which have been added into the nature of interference; (iv) the principles pertaining to ‘undue influence’ are required to be appreciated regard being had to the progression of the election law, the contemporaneous situation, the prevalent scenario and the statutory content; (v) the basic concept of "undue influence" relating to an election is voluntary interference or attempt to interfere with the free exercise of electoral right;

(vi) an act which is calculated to interfere with the free exercise of electoral right, is the true and effective test whether or not a candidate is guilty of ‘undue influence’; (vii) free exercise of electoral right has a nexus with direct or indirect interference or attempt to interfere; (viii) if there is any direct or indirect interference or attempt to interfere on the part of the candidate, it amounts to ‘undue influence’; (ix) concept of ‘undue influence’ applies at both the stages, namely, pre-voting and at the time of casting of vote; (x) factum of non-disclosure of the requisite information as regards the criminal antecedents is a stage prior to voting; (xi) the sanctity of the electoral process imperatively commands that each candidate owes and is under an obligation that a fair election is held; (xii) undue influence should not be employed to enervate and shatter free exercise of choice and selection; (xiii) freedom in the exercise of judgment which engulfs a voter's right, a free choice, in selecting the candidate whom he believes to be best fitted to represent the constituency, has to be given due weightage; the requirement of disclosure, especially of criminal antecedents, enables a voter to have an informed and instructed choice; (xiv) if a voter is denied the acquaintance to the information and deprived of the condition to be apprised of the entire gamut of criminal antecedents relating to heinous or serious offences or offence of corruption or moral turpitude, the exercise of electoral right would not be an advised one - he will be exercising his franchisee with the misinformed mind – the fundamental right of the voter to know also gets nullified; (xv) the attempt has to be perceived as creating an impediment in the mind of a voter, who is expected to vote to make a free, informed and advised choice; (xvi) election covers the entire process from the issuance of the notification till the declaration of the result; (xvii) thus, while filing the nomination form, if the requisite information relating to criminal antecedents is not disclosed, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark; (xviii) misinformation nullifies and countermands the very basis and foundation of voter's exercise of choice;

(xix) denial of information, a deliberate one, thus amounts to corrupt practice of ‘undue influence’ as defined under Section123(2) of the RP Act.

9. The same question again came up before the Supreme Court in Sri Mairembam Prithviraj Vs. Shri Pukhrem Sharatchandra Singh 2016 SCC Online SC 1207 and it was additionally held (i) that every voter has a fundamental right to know about the educational qualification of a candidate; (ii) it is clear from the provisions of the RP Act, Rules and Form 26 that there is a duty cast on the candidates to give correct information about their educational qualifications; (iii) that reference to MBA from Mysore University which the candidate had not studied could not be a clerical mistake; (iv) the candidate in an earlier election also had declared his educational qualification as MBA from Mysore University; (v) once it was found that the candidate had not studies MBA, the information provided by him in the affidavit filed in Form 26 would amount to a false declaration;

(vi) the said false declaration cannot be said to be a defect which was not of a substantial character; (vii) having made a false declaration relating to educational qualification, the candidate cannot be permitted to contend that the declaration is not of substantial character; (viii) that there is a difference between the improper acceptance of a nomination of a returned candidate and the improper acceptance of nomination of any other candidate; (ix) if the nomination of a candidate other than the returned candidate is found to have been improperly accepted, it is essential that the election petitioner has to plead and prove that the votes polled in favour of such candidate would have been polled in his favour; (x) on the other hand, if the improper acceptance of nomination is of the returned candidate, there is no necessity of proof that the election has been materially affected as the returned candidate would not have been able to contest the election if his nomination was not accepted – in such a case it is not necessary to prove that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination.

10. In view of the aforesaid judgments, the contention of the senior counsel for the respondent no.1/applicant that furnishing wrong information with the nomination form does not constitute a ground for setting aside of the election or that there is no material on record to show that the result of the election was materially affected by the declaration of the educational qualification or that the petitioner is estopped, cannot be accepted. I may however record that the counsel for the petitioner/non-applicant relied upon Jaspal Singh Vs. O.P. Babbar 2008 (149) DLT 205 but which was dealt with by me in Nand Ram Bagri supra and thus need to deal with herein is not felt. I may further record that the senior counsel for the respondent no.1/applicant also referred to (i) Azhar Hussain Vs. Rajiv Gandhi AIR 1986 SC 1253; (ii) Virender Nath Gautam Vs. Satpal Singh (2007) 3 SCC 617; (iii) Baburao Patel Vs. Dr. Zakir Hussain AIR 1968 SC 904; (iv) N.S. Vardachari Vs. G. Vasantha Pai (1972) 2 SCC 594; (v) Mohan Singh Vs. Bhanwarlal AIR 1964 SC 1366; (vi) Manohar Joshi Vs. Nitin Bhaurao Patil (1996) 1 SCC 169; and, (vii) K.M. Mani Vs. P.J. Antony (1979) 2 SCC 221 but in the light of the aforesaid recent judgments which squarely apply, the need to burden this judgment by dealing with the said judgments is also not felt.

11. It is also the contention of the senior counsel for the respondent no.1/applicant that the petitioner/non-applicant is not challenging the qualification declared by the respondent no.1/applicant as a Law Graduate but the eligibility of the respondent no.1/applicant to be admitted to the LL.B. course on the ground of not having a graduation degree. It is contended that in Nand Ram Bagri also, the election petition was dismissed for the same reason.