Ravi Namboothiri vs K.A. Baiju & Ors.

(ii) that any corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his agent; (iii) that any nomination had been improperly rejected; (iv) that the details furnished by the elected candidate under sub-section (1A) of Section 52 were fake; and (v) that the result of the election, insofar it concerns the returned candidate, has been materially affected either by the improper acceptance of any nomination or by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of this Act or of any Rules or orders made thereunder. Interestingly, sub--section (1) of Section 102 places the first four contingencies listed in the preceding paragraph, {which are relatable to clauses (a), (b), (c) and (ca) of sub--section (1)} on a different footing than the fifth contingency {relatable to clause (d)}. The difference between clauses (a), (b), (c) and (ca) on the one hand and clause (d) of sub--section (1) of Section 102 on the other hand is this. For setting aside an election under any one or more of the contingencies mentioned in clauses (a), (b),

(c) and (ca), it is not necessary for the Court to find if the result of the election, insofar as it concerns the returned candidate, has been materially affected or not. In contrast, for holding an election to be void on the ground of improper acceptance of any nomination or the commission of a corrupt practice by any other agent, but in the interest of the returned candidate or the improper reception, refusal or rejection of any vote or the reception of any vote which is void or non- compliance with the provisions of the Act, the Rules or orders, the Court must be satisfied that the result of the election has been materially affected. [Paras 1517][288-G-H; 289-A-E]

1.2 In other words sub-section (1) of Section 102 places, (i) non- qualification/disqualification of the returned candidate; (ii) commission of any corrupt practice by the returned candidate or his election agent or any other person with the consent of the returned candidate or his election agent; (iii) the improper rejection of any nomination; and (iv) the furnishing of details under Section 52(1A) which are fake, on a much higher pedestal. If a challenge is made to the election of a candidate on any one of these four grounds, it is not necessary to show that the result of the election has been materially affected. Sub--section (1) of Section 102 places, (i) improper acceptance of any nomination;

(ii) commission of any corrupt practice in the interest of the returned candidate, but by any agent other than his own election agent; (iii) the improper reception, refusal or rejection of any vote or the reception of any vote which is void; and (iv) the non-compliance with the provisions of the Act or any Rules or orders made thereunder, in one group or class, where the Court is obliged to look into an additional factor namely whether the result of the election was materially affected due to any of these factors. The expression “corrupt practice” is defined in Section

120 of the Act. [Paras 18-20][289-F-H; 290-A-B]

1.3 The argument of respondent No.1 is that the case would fall squarely under Section 102(1)(ca), which deals with the furnishing of details under Section 52(1A), but which are fake. Alternatively, it is suggested that the case would fall under Section 102(1)(b) which deals with the commission of any corrupt practice by the returned candidate. Since the expression “corrupt practice” is defined in Section 120(2) to include ‘undue influence with the free exercise of any electoral right’, it is argued by the respondent No.1 that the case may fall under Section 102(1)(b) also, in view of the law laid down in Krishnamoorthy. This Court has its own doubts about the second limb of the argument of the senior counsel for respondent No.1. The second limb of his argument is that the failure to disclose correct information in Form 2A would tantamount to ‘undue influence on the free exercise of the electoral right’, which comes within the definition of the expression “corrupt practice” under section 120 of the Act. Inspiration for this argument arises from the decision of this Court in Krishnamoorthy. [Paras 21, 22][295-C-F]

1.4 In so far as the Kerala Panchayat Raj Act is concerned, there is no necessity, after the amendment under Act 30 of 2005 to take a circuitous route. Non-disclosure and false disclosure can straight away be traced to Section 52(1A) and 102(1)(ca) of the Act. Coming back to Section 102(1)(ca), it enables a Court to declare the election of a returned candidate to be void, if the details furnished by him under Section 52(1A) are found to be “fake”. Interestingly the Statute uses the expression “fake” and not expressions such as “false”, “suppression” etc. The word “fake” is not defined in the Act. Black’s Law Dictionary defines the word “fake” to mean “to make or construct”. In P. Ramanatha Aiyar’s Advanced Law Lexicon, (Volume 2, 5th Edition, 2017), the entry relating to the word “fake” simply directs the reader to the entry relating to the word “forgery”. Therefore, one has to go to the entry relating to the word “forgery” to understand the meaning of the word “fake”. The entry relating to the word “forgery” is quite long and it begins with a reference first to Section 463 of the IPC, 1860 which defines “forgery”. [Paras 2830][303-B-F]

1.5 A reading of the above entry in the Law Lexicon shows that the word “forgery” has its origin in French, signifying “the framing or fashioning of a thing as the smith doth his work upon the anvil.” Essentially “forgery” appears to include the false making of any writing. Thus, it appears from the above that the elements of forgery are also identified as the ingredients of faking something. If the false making of an instrument is a common ingredient of “faking” and “forgery”, the non-disclosure in Form No.2A of the conviction suffered by the appellant in the past, may certainly come within Section 102(1)(ca). The reason for this is that a person having criminal antecedents, poses himself to be one without any such antecedent, when he fails to make a true disclosure. In law, he passes off or comes out as a person without any criminal antecedent. Therefore, the failure to make a true disclosure in Form 2A, regarding the past conviction, will certainly come within the meaning of the word ‘fake’, mentioned in clause

(ca) of sub-section of Section 102. [Paras 31-33][306-C-F]

1.6 It may be true, as contended by the counsel for the appellant that Rule 6, in terms of which Form No.2A has been drafted, is a subordinate legislation, which cannot go beyond the scope of Section 52(1A). But unfortunately for the appellant, Rule

6 is not under challenge on the ground that it is ultra vires the Act. Therefore, the appellant cannot now be heard to contend that Rule 6 cannot travel beyond or enlarge the scope of Section 52(1A). If not for Rule 6 and Form No.2A, it is possible to accept the argument that the requirement under Section 52(1A) is limited to “the disclosure of involvement in a criminal case at the time of filing of the nomination”. At the time of filing of the nomination, the appellant was not involved in any criminal case. We do not agree with the argument of the learned senior counsel for respondent No.1 that the phrase “involvement in a criminal case” would include past conviction also, especially when Section 52(1A) uses the rider “at the time of filing of the nomination”. [Paras 34-36][306-G-H; 307-A-B]

1.7 The words “involvement in a criminal case at the time of filing of the nomination” would only mean (i) cases where a criminal complaint is pending investigation/trial; (ii) cases where the conviction and/or sentence is current at the time of filing of the nomination; and (iii) cases where the conviction is the subject matter of any appeal or revision pending at the time of the nomination. Therefore, in the absence of Rule 6 and Form No.2A we could have easily concluded that the case of the appellant will not be covered by Section 52(1A) as he was not involved in any criminal case on the date of the nomination. But Rule 6 and Form No.2A taken together with what the law means to be “fake”, makes things difficult for the appellant. Column No.1 in Form 2A requires the details not only of the criminal cases pending trial before the Court but also the criminal cases in which the contestant was convicted. The contestant is required to furnish in Form No.2A, details regarding the cases in which he is punished, the case number, the Court, the offences for which punishment was awarded, the nature of the punishment and the details regarding appeal or revision etc. Therefore, Form No.2A goes far beyond the requirement of Section 52(1A). The appellant admittedly failed to furnish details of his past conviction in Form No.2A. Therefore, the ground on which his election was sought to be declared void, falls squarely within Section 102(1)(ca) of the Act. But that is not all. The offences for which the appellant was eventually convicted, were under Section 38 read with Section 52 of the Kerala Police Act, 1960 (Act 5 of 1961). [Paras 37-40][307-C-H]

1.8 It could be seen from both the above provisions that the conviction of the appellant was actually for the disobedience of the directions issued by a police officer. This was admittedly in connection with a dharna which the appellant staged in front of the Panchayat office, along with a group of his supporters. Therefore, the question that we are obliged to consider is as to whether the non-disclosure of the conviction for such offences would also come within the purview of Section 102(1)(ca) of the Act. While offences under the Indian Penal Code or under special enactments such as Prevention of Corruption Act, Arms Act and so on and so forth are substantive offences, the commission of which may make a person a criminal, an offence under certain enactments such as Kerala Police Act are not substantive offences. Just as strike is a weapon in the hands of the workmen and lock-out is a weapon in the hands of the employer under Labour Welfare legislations, protest is a tool in the hands of the civil society and police action is a tool in the hands of the Establishment. All State enactments such as Kerala Police Act, Madras Police Act etc., are aimed at better regulation of the police force and they do not create substantive offences. This is why these Acts themselves empower the police to issue necessary directions for the maintenance of law and order and the violation of any of those directions is made a punishable offence under these Acts. Once the object behind the provisions of the Kerala Police Act are understood, it would be clear that neither Section 52(1A) read with Rule 6 and Form 2A nor Section 102(1)(ca) of the Act nor the decisions in Association for Democratic Reforms, People’s Union for Civil Liberties (PUCL) or Krishnamoorthy can be stretched to such an extent that the failure of the appellant to disclose his conviction for an offence under the Kerala Police Act for holding a dharna in front of the Panchayat office, is taken as a ground for declaring an election void. [Paras 43, 45 and 46][308-D-F; 309-F-H; 310-A-C]

1.9 It may be of interest to note that the Kerala Police Act, 1960 repealed (i) the Travancore-Cochin Police Act, 1951; and

(ii) the Madras District Police Act, 1859 as applied to the Malabar District referred to in Section 5(2) of the States Reorganisation Act, 1956. It also repealed the provisions of (i) the Police Act, 1861; and (ii) the Madras City Police Act, 1888, which were earlier extended to the Malabar District. Thus Kerala Police Act, 1960 is actually the successor legislation of certain police enactments of the colonial era, whose object was to scuttle the democratic aspirations of the indigenous population. This aspect should be kept in mind before applying blindfold, the principle ‘what is sauce for the goose is sauce for the gander’. The District Court and the High Court were wrong in declaring the election of the appellant to be void on the ground that the failure of the appellant to disclose in Form 2A, his conviction under the Kerala Police Act amounted to ‘undue influence on the free exercise of the electoral right’ and also a violation of Section 52(1A) read with Section 102(1)

(ca) of the Kerala Panchayat Raj Act. Hence, the appeals are allowed, the impugned orders are set aside and the Election Petition filed by respondent No.1 is dismissed. No costs. [Paras 47, 48][310-C-F]

Union of India vs. Association for Democratic

Reforms and Anr (2002) 5 SCC 294: [2002] 3 SCR 696; People’s Union for Civil Liberties (PUCL) and Anr. vs. Union of India and Anr (2003) 4 SCC 399: [2003]

2 SCR 1136; Krishnamoorthy vs.Sivakumar & Ors

(2015) 3 SCC 467 : [2015] 4 SCR 987; Resurgence India vs. Election Commission of India and Anr (2014)

14 SCC 189: [2013] 9 SCR 360 – referred to.