Ajmera Shyam vs Smt. Kova Laxmi & Ors.

Held: Merely because a returned candidate has not disclosed certain information related to the assets, courts should not rush to invalidate the election by adopting a highly pedantic and fastidious approach, unless it is shown that such concealment or non-disclosure was of such magnitude and substantial nature that it could have influenced the election result – On facts, not demonstrated that concealment or non-disclosure of certain information related to assets was of a substantial nature that could have materially affected the result of the election of the returned candidate – Non-disclosure of income in the income tax return for four financial years by respondent No.1, not a defect of substantial character, thus, no illegality committed by the Returning Officer in accepting the nomination of the respondent No.1 – Penal clause cannot be invoked to invalidate respondent No.1’s election u/s.100(1)(d)(i) on the ground that the nomination of Respondent No.1 was improperly accepted – Non-disclosure of income not of a substantial nature to be considered a corrupt practice within the meaning of s.123 (2), and thus, the election of respondent No.1 cannot be rendered void u/s.100(1)(b) – It cannot be also said that the Respondent No.1 did not comply with the relevant provisions of the Act or any rule or order made under the Act, to attract the provisions of s.100(1)(d)(iv) – Respondent no. 1 is a wellknown political figure in her Constituency and no allegation of malpractice or corrupt practices or providing false information by her – Respondent No.1 had already disclosed her and her spouse’s assets, both movable and immovable, source of income, and profession – In view thereof, non-disclosure of the tax return for certain financial years, although a technical defect under the rules, cannot be considered to be a defect of significant importance as it does not in any manner amount to hiding the assets – It does not amount to misrepresentation or non-disclosure of assets which is of consequence – Nothing has been shown by the election petitioner about any disproportionately higher income vis-à-vis the sources of income in respect of the period for which the income tax returns had not been filed – Respondent No.1 had not left the relevant column in the Affidavit blank, which would have made the nomination paper fatally defective and liable to be rejected – Not a case of providing false information or engaging in disinformation, but rather failure to provide certain information concerning the assets which, does not amount to a defect of substantial character warranting declaration of Respondent No.1’s election as void – Also, no objection at the time of scrutiny, during the election trial, no material produced by the petitioner regarding the non-disclosure of any material information by the returned candidate – As regards the allegation that the respondent No.1 did not disclose the income from honorarium she received as Chairperson of Zilla Parishad, or that she did not disclose receiving ex-MLA pension cannot be considered to have been proved or established, nor these are of any material consequences – Constitution of India – Art. 19(1)(a). [Paras 10.11-10.35, 11.1-11.5]

Representation of the People Act, 1951 – ss.8 and 9 – Disclosure of information relating to criminal antecedents and disclosure of information about assets and educational qualification – Difference between:

Held: Disclosure concerning criminal antecedents is linked to the existing provisions u/s.8 and 9, which specify that a candidate would be disqualified if convicted of any offences listed u/s.8 or dismissed for corruption or disloyalty u/s.9 – However, regarding voidance of the election of the returned candidates due to nondisclosure of assets, it is not explicitly stated in the Act – It has become part of election law through judicial intervention and it is to be mentioned as part of the Form 26 Affidavit filed during the nomination process – Disclosure of information relating to criminal antecedents and assets cannot be placed at the same pedestal – Requirement to disclose criminal antecedents has to be examined more scrupulously and dealt with more strictly as the involvement of criminals is a bane in the electoral system, which was the prime focus of judicial intervention which is reflected in the insertion of s. 33A of the Act – On the other hand, disclosure of information about assets and educational qualification were attending requirements to improve the quality of the electoral process and the elected members for which no specific statutory provision has been made in the Act, but forms part of the information required to be mentioned in the Form 26 Affidavit in terms of r.4A – However, there can be no disqualification under the law based on a candidate’s wealth or financial status unlike in the case of candidates with criminal antecedents, who will stand disqualified if convicted of certain offences mentioned u/s.8. [Paras 9.4-9.8]

Election – Election disputes concerning disclosure of information – Judicial intervention:

Held: Aiming to prevent criminals from participating in elections to maintain purity of the electoral process essential for the proper functioning of parliamentary democracy the court was compelled to exercise its extraordinary power to issue specific directions – Consequently, not only disclosure of criminal antecedents, but also related obligations to disclose assets, liabilities, and educational qualifications of election candidates became mandatory – Knowledge of the criminal antecedents, assets and educational qualifications of the candidates by voters certainly invigorates the electoral process, which is ensured by obligatory disclosure by the candidate – However, there is a subtle distinction between non-disclosure of criminal antecedents and that of assets and educational qualifications – While disclosure of criminal antecedents in the electoral process was the most critical element to maintain the purity of the electoral process which has to be scrupulously adhered to, disclosure of assets and educational qualifications were considered as attending supplementary requirements to strengthen the electoral process, of which there will be certain scope for consideration as to whether it is of substantial or inconsequential nature. [Para 11.1]

Representation of the People Act, 1951 – Part VI – Election petition – Conditions for challenging the outcome of an election – Discussed. [Para 9.11.2]

Elections – Election process – Examining the validity of nomination – Disclosure of information – Role of court – Elucidated. [Paras 9.10-9.10.8]