DR. RAJENDRA PRASAD, PRESIDENT, CONSTITUENT ASSEMBLY OF INDIA, 26TH NOVEMBER, 1949, BEFORE PUTTING THE MOTION FOR PASSING OF THE CONSTITUTION ON THE FLOOR.

Criminalisation of politics is absolutely unacceptable. Corruption in public life is indubitably depreciable. The citizenry has been compelled to stand as a silent, deaf and mute spectator to corruption, either being helpless or being resigned to fate. We are absolutely conscious, the right to contest an election is neither a fundamental right nor a common law right,” the upreme Court said in a judgment. In fact, the criminalisation of politics was the high point of the discussion in the recent case where the Supreme Court sat to decide whether the suppression or nondisclosure of information about serious crimes by a candidate at the time of filing nomination interferes with the voters’ right to make an informed choice and that the election of such a candidate is liable to be set aside. The Court was also to decide what constitute ‘undue influence’ in the context of Section 260 of Tamil Nadu Panchayats Act, 1994 which has adopted the similar expression as has been laid down under Section 123 (2) of the Representation of People’s Act, 1951.

The bench comprising of Justices Dipak Misra and Prafulla C Pant held that nondisclosure of criminal antecedents on part of a candidate would amount to “undue influence” and therefore the election is to be declared null and void by the Election Tribunal under section 100(1)(b) of the Representation of the People Act,1951.

“Concealment or suppression of this nature deprives the voters to make an informed and advised choice, as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate”, the bench expressed.

The Court ruled that non-disclosure of pending criminal cases by a candidate can lead to his or her election being set aside on the ground of “undue influence”. The Court also observed that revelation of pending criminal cases is a necessary obligation upon the candidates while filing the nomination and concealment of the same hinders the voter’s right to make an informed choice as it becomes a direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate.

Justice Misra gave an illustration to make the point clear. A candidate files his nomination paper, attaching a sworn affidavit that says he has been involved in a case under Section 354 IPC (outraging modesty of a woman). But the affidavit does not say anything else, although cognisance has been taken or charges have been framed under the Prevention of Corruption Act or for offences such as murder, attempt to murder, dacoity, smuggling, land grabbing and embezzlement or any other crime which may be termed as heinous. “When an FIR is filed, a person filing a nomination paper may not be aware of lodgement of the FIR but when cognisance is taken or a charge is framed, he is definitely aware of the said situation. It is within his special knowledge. If the offences are not disclosed in their entirety, the electorate remains in total darkness about such information,” the Court added.

The bench held that concealment or suppression of criminal cases tantamount’ to “fraud” with electorate and it creates an impediment in the free exercise of electoral right. “As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal,” under Section 100(1)(b) of the [Representation of People’s Act, 1951] Act,” the bench said.

In the instant case the validity of the appellant’s election to the post of President of Thekampatti Panchayat, Mettupalayam Taluk, Coimbatore district, Tamil Nadu was challenged due to non- disclosure of full particulars of criminal case by the appellant while filing the nomination. The Tamil Nadu State Election Commission makes it mandatory to every candidate desiring to contest an election to a local body to disclose that whether the candidate has any pending criminal case for any offence punishable with imprisonment for two years or more and in which charges have been framed or cognizance taken by any court. It was later found that appellant Krishnamurthy was involved in eight cases relating to embezzlement. The Coimbatore Election Tribunal declared the election void on grounds of the non- disclosure which was affirmed by the Madras High Court. V. Mohana and R. A. Padmanabhan represented the appellant and respondent respectively along with noted counsel Harish Salve who was the Amicus Curiae.

The submission of the learned counsel for the appellant Ms. V. Mohana, that he (the appellant) has passed up to Class X and, therefore, was not aware whether he has to give all the details as he was under the impression that all the cases were one case or off-shoots of the main case. The aforesaid submission was rejected by the court. Therefore, the judges were of the view that the High Court is justified in declaring that the election as null and void on the ground of corrupt practice. The bench also thanked amicus curiae Harish Salve and Additional Solicitor General Maninder Singh for their valuable inputs.

The Supreme Court has earlier held similar views in K Prabhakaran v. P Jayarajan where it said,

“Those who break the law should not make the law. Generally speaking the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics and the house – a powerful wing of governance. Persons with criminal background do pollute the process of election as they do not have many a holds barred (sic) and have no reservation from indulging into criminality to win success at an election.”

The apex court gave numerous such precedents like Mohinder Singh Gill v CIC, Union of India v Association of Democratic Reforms, PUCL & Another v Union of India, Kanhiya Lal Omar v R. K Trivedi and Common Cause v Union of India to assist the point and said “ If right to telecast and right to view sport games and the right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter — a little man — to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a).

Fundamentally, there is no place for criminality in democratic polity of India” It is to be added here that to ensure free and fair elections, and give impetus to the vision of the framers, the Parliament enacted The Representation of the People Act, 1951 which inter alia provides qualifications and disqualifications for membership of Parliament and State Legislatures, lays down corrupt practices that are punishable by law, creates other offences in connection with such elections and for the resolution of disputes arising out of or in connection with them. The underlying rationale for the legislation is thus to create a systemic framework conducive to free and fair elections. Implicit in this framework is the need to prescribe certain qualifications and disqualifications, which are deemed to be respectively essential or unsuitable for holders of public office. Concluding a detailed 97-page judgment, the Supreme Court gave the following directions:

• “Disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption or moral turpitude at the time of filing of nomination paper as mandated by law is a categorical imperative.
• When there is non-disclosure of the offences pertaining to the areas mentioned in the preceding clause, it creates an impediment in the free exercise of electoral right.
• Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate.
• As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1)(b) of the 1951 Act [Representation of the People Act, 1951].
• The question whether it materially affects the election or not will not arise in a case of this nature.”

Thus, this judgment by the Supreme Court leads to further strengthening of the election-related laws. If a candidate at an election does not disclose full particulars of the criminal cases pending against him, his election result may be set aside even if he has won such election. Thus, the candidates are required to provide full particulars of the criminal cases against him so that the voters can make an informed choice.