IN THE HIGH COURT OF DELHI AT NEW DELHI Elec. Pet. 1/2004 # Sh. Jaspal Singh ....... Petitioner ! through: Mr. N.Safaya, Advocate VERSUS $ Sh. O.P.Babbar ....... Respondent ^ through: Mr. Parag Triptahi, Sr. Adv. with Mr. Jayant K.Mehta, Advocate Elec. Pet. 4/2004 # Sh. Sudarshan Khatri ....... Petitioner ! through: Mr. N.Safaya, Advocate VERSUS $ Sh. O.P.Babbar ....... Respondent ^ through: Mr. Parag Triptahi, Sr. Adv. with Mr. Jayant K.Mehta, Advocate RESERVED ON: 07-01-2008 % D ATE OF DECISION: 19-02-2008 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? Y 2. To be referred to the Reporter or not? Y 3. Whether judgment should be reported in Digest? Y : PRADEEP NANDRAJOG, J. 1. Jaspal Singh was a contesting candidate for the election to the Delhi Legislative Assembly held in December 2003. He Elect Pets. Nos. 1/2004 & 4/2004 Page 1 of 31 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 4 A of the Conduct of Elections Rules 1961. Learned counsel for the parties jointly submitted that the issue may Elect Pets. Nos. 1/2004 & 4/2004 Page 2 of 31 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 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 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. Elect Pets. Nos. 1/2004 & 4/2004 Page 3 of 31 (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: Elect Pets. Nos. 1/2004 & 4/2004 Page 4 of 31 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 Elect Pets. Nos. 1/2004 & 4/2004 Page 5 of 31 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, Elect Pets. Nos. 1/2004 & 4/2004 Page 6 of 31 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; Elect Pets. Nos. 1/2004 & 4/2004 Page 7 of 31 (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 Elect Pets. Nos. 1/2004 & 4/2004 Page 8 of 31 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 Elect Pets. Nos. 1/2004 & 4/2004 Page 9 of 31 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 Elect Pets. Nos. 1/2004 & 4/2004 Page 10 of 31 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. Elect Pets. Nos. 1/2004 & 4/2004 Page 11 of 31 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 Elect Pets. Nos. 1/2004 & 4/2004 Page 12 of 31 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 impleaded 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 Elect Pets. Nos. 1/2004 & 4/2004 Page 13 of 31 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 Elect Pets. Nos. 1/2004 & 4/2004 Page 14 of 31 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