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Supreme Court infers Independent Candidate’s Right to Privacy; States Non-Disclosure of vehicles and dues do not amount to Corrupt Practice

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CASE TITLE – Karikho Kri v. Nuney Tayang and Anr.

CASE NUMBER – Civil Appeal No(s). 4615 of 2023 & 4616 of 2023

DATED ON – 09.04.2024

QUORUM – Justice Aniruddha Bose & Justice Sanjay Kumar

 

FACTS OF THE CASE

In the year 2019, Karikho Kri, an independent candidate, Dr. Mohesh Chai, candidate of the Bharatiya Janata Party, and Nuney Tayang, candidate of the Indian National Congress, contested the election to the Arunachal Pradesh Legislative Assembly from 44 Tezu (ST) Assembly Constituency. The election was held on 11.04.2019 and Karikho Kri emerged victorious with 7538 votes, while Dr. Mohesh Chai secured 7383 votes and Nuney Tayang secured 1088 votes. Nuney Tayang filed Election Petition No. 01(AP) of 2019 before the Itanagar Bench of the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh, seeking a declaration that the election of Karikho Kri was void on the grounds mentioned in Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Representation of the People Act, 1951 (for brevity, ‘the Act of 1951’). He also sought a consequential declaration that he stood duly elected from the said constituency. By judgment and order dated 17.07.2023, a learned Judge of the Itanagar Bench of the High Court allowed the election petition in part, declaring the election of Karikho Kri void under Sections 100(1)(b), 100(1) (d)(i) and 100(1)(d)(iv) of the Act of 1951, but rejecting the prayer of Nuney Tayang to declare him duly elected, as he had not led any evidence to prove the allegations levelled by him against Dr. Mohesh Chai, the candidate with the second highest number of votes. Aggrieved thereby, Karikho Kri filed Civil Appeal No. 4615 of 2023 before the Supreme Court and Nuney Tayang filed Civil Appeal No. 4716 of 2023. These appeals were filed under Section 116A of the Act of 1951.

 

ISSUE

  1. Whether there has been a non-disclosure of ownership of Hero Honda CD Dawn Motorcycle owned by the returned candidate, Shri Karikho Kri bearing registration No. AR-11-2446; Kinetic Zing Scooty owned by the wife of the returned candidate, Smti. Bagilu Kri bearing registration No. AR-11-4474; Van, Maruti Omni Ambulance owned by the wife of the returned candidate, Smti. Bagilu Kri bearing registration No. AR-11A-3100 and TVS Star City Motorcycle owned by Shri Goshinso Kri, the son of the returned candidate Shri Karikho Kri bearing registration No. AR11-6581, as is required to be disclosed under Clause 7(vi) of the Conduct of Election Rules, 1961, rendering the nomination of the returned candidate invalid?
  2. Whether there has been a non-submission of no dues certificate with regard to Electricity Charges required to be submitted under Clause 8(ii)(b) of Form No. 26 of the Conduct of Election Rules, 1961, as the respondent No. 1 was in occupation of MLA Cottage No. 1 at ‘E’ Sector, Itanagar, from the year, 2009- 2014, while the respondent No. 1 was an MLA of Tezu (ST) Assembly Constituency during the year, 2009-2014?
  3. Whether the election of respondent No. 1 to the 44- Tezu(ST) Assembly Constituency is liable to be declared void under Section 100(1)(d)(i) of the Representation of the People Act, 1951?

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court observed that though it appears that the three vehicles in question still remained registered in the names of the wife and son of Karikho Kri, the question that arises is as to whether non-disclosure of such vehicles justified the attributing of a corrupt practice to Karikho Kri and the negating of his election on that ground. They stated insofar as the Scooty bearing No. AR-11/4474 is concerned, it stood in the name of Bagilu Kri but Md. Nizammudin (DW5) deposed that he had taken this vehicle as scrap and sold it as such to Promod Prasad (DW6). In turn, Promod Prasad (DW6) confirmed that he bought the Scooty as scrap from Md. Nizammudin (DW5). During their cross-examination, nothing was elicited from these witnesses to doubt their claims. However, letter dated 20.09.2019 addressed by the District Transport Officer, Lohit District, Tezu, to Bagilu Kri, manifests that the registration of the Scooty in her name stood cancelled only at that time. Though much was argued about this payment of taxes and the fact that the receipt was issued in the name of Bagilu Kri, The Supreme Court was not inclined to give any weightage to it, and the other two vehicles in question, had actual documents of conveyance and also proof of the requisite forms prescribed under the Act of 1988 being duly filled in and issued by Bagilu Kri and Goshinso Kri. Form No. 29, relating to notice of ownership transfer of a vehicle by the registered owner, viz., the transferor, was issued in respect of each of these vehicles but despite the same, the transferees did not do the needful to get their own names registered as the owners. But the Supreme Court held that Mere failure to get registered the name of the new owner of an already registered vehicle does not mean that the sale/gift transaction would stand invalidated and such a vehicle, despite being physically handed over to the new owner, cannot, by any stretch of imagination, be treated as still being in the possession and control of the former owner. Once it is accepted that the three vehicles in question were either gifted or sold before the filing of the nomination by Karikho Kri, the said vehicles cannot be considered to be still owned by Karikho Kri’s wife and son for purposes other than those covered by the Act of 1988. Therefore, non-disclosure of the three vehicles in question could not be held against Karikho Kri in the light of the aforestated analysis. In his Affidavit in Form No. 26, Karikho Kri was required to state as to whether he had been in occupation of accommodation provided by the Government at any time during the last 10 years before the date of notification of the current election and, if so, he was to furnish a declaration to the effect that there were no dues payable in respect of the said accommodation in relation to rent, electricity charges, water charges and telephone charges. Karikho Kri, however, failed to disclose the fact that he had been in occupation of government accommodation during his tenure as an MLA between 2009 and 2014. After Nuney Tayang raised an objection to his candidature on this ground, Karikho Kri filed the requisite ‘No Due Certificates’ of 2014. Having considered the issue, we are of the firm view that every defect in the nomination cannot straightaway be termed to be of such character as to render its acceptance improper and each case would have to turn on its own individual facts, insofar as that aspect is concerned. The Supreme Court viewed that it was not in dispute that there were no actual outstanding dues payable by Karikho Kri in relation to the government accommodation occupied by him earlier, and his failure in disclosing the fact that he had occupied such accommodation and in filing the ‘No Dues Certificate’ in that regard, with his nomination form, cannot be said to be a defect of any real import. More so, as he did submit the relevant documents of 2014 after Nuney Tayang raised an objection before the Returning Officer, and his explanation that he submitted such Certificates in the year 2014 when he stood for re-election as an MLA was in the eyes of the Court, logical and worthy of acceptance. The Supreme Court also inferred to his ‘right to privacy’ which would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, non-disclosure of each and every asset owned by a candidate would not amount to a defect, much less, a defect of a substantial character. On the above analysis, the Hon’ble Supreme Court held that the High Court was in error in concluding that sufficient grounds were made out under Sections 100(1)(b), 100(1)(d)(i) and 100(1)(d)(iv) of the Act of 1951 to invalidate the election of Karikho Kri and, further, in holding that non-disclosure of the three vehicles, that still remained registered in the names of his wife and son as on the date of filing of his nomination, amounted to a ‘corrupt practice’ under Section 123(2) of the Act of 1951. In the result, Civil Appeal No. 4615 of 2023 filed by Karikho Kri was allowed, setting aside the Judgment and Order dated 17.07.2023 passed by the Itanagar Bench of the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh, and Civil Appeal No. 4716 of 2023, filed by Nuney Tayang, was dismissed.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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The Allegations of ‘Corrupt Practices’ must be established Beyond Reasonable Doubt to render a Election Void under Section 100 of RP Act: Supreme Court

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Case title: Karim Uddin Barbhuiya Vs Aminul Haque Laskar & Ors.

Case no.: Civil Appeal No. 6282 of 2023

Decision on: April 8th, 2024

Quoram: Justice Aniruddha Bose and Justice Bela M. Trivedi

Facts of the case

On March 5, 2021, General Election to the Legislative Assembly of Assam was notified by the Election Commission of India (ECI) and accordingly, the appellant Karim Uddin Barbhuiya filed his nomination papers as a candidate of All India United Democratic Front (AIUDF) along with the Declaration, by way of an affidavit in Form-26 of The Conduct of Election Rules, 1961. On April 1, the election for the Legislative Assembly Constituency no. 10, Sonai was concluded and the appellant secured 71,937 votes out of total votes polled, while the respondent Aminul Haque Laskar secured 52,283 votes in his favour.

On June 4, the respondent filed the Election Petition before the Gauhati High Court under Section 100(1)(b) and Section 100(1)(d)(i) of RP Act questioning the election of the appellant, mainly making four allegations – (a) false declaration of educational qualification of B.A. (b) suppression of the educational qualification of Diploma in Engineering (c) suppression of bank loan details of M/s. Allied Concern and (d) suppression of un-liquidated provident fund dues. The High Court issued notice in the said Election Petition. Subsequently, the appellant filed an application under Order VII Rule 11, CPC read with Section 86 of the RP Act for rejection of the Election Petition. However, the High Court through an impugned judgment dismissed the application filed by the appellant and hence, the same was contested before the Apex Court.

Submissions on behalf of the Appellants

The Counsel, Mr. Kapil Sibal appearing for the appellant vehemently submitted that the respondent has sought to upset the election results by filing the baseless, motivated and malafide election petition, based on mere bald allegations that the information disclosed in Form No. 26 was inaccurate. He submitted that the pleadings in Election petition are not the averments of material facts but are facts based speculations which do not disclose any triable issue. He further submitted that it neither discloses a complete cause of action, nor contain all the “material facts” as required under Section 83(1)(a). It also does not plead “full particulars” of the alleged corrupt practice of undue influence, as required under Section 81(1)(b) of the RP Act.

The Counsel submitted that the allegations and averments made in the Election Petition could not constitute “undue influence” much less “corrupt practices” as contemplated under Section 123, for declaring the Election to be void under Section 100 of the RP Act. He relied on the decision in case of Kanimozhi Karunanidhi Vs A. Santhana Kumar and Ors and prayed to dismiss the Election Petition at the threshold.

Submissions on behalf of the Respondents

The Counsel submitted that the election of the appellant is liable to be set aside firstly on the ground that the nomination paper was improperly accepted, as the affidavit contained false statements and secondly, on the ground that the appellant having indulged in corrupt practices, failed to make the disclosures as required by the RP Act. He submitted that if the “corrupt practice” is alleged under Section 100(1)(b), it is not necessary to state that the “corrupt practice” has materially affected the outcome of the election. Thus, he contended that the High Court was right in rejecting the application of the appellant under Order VII Rule 11, CPC.

Court’s Analysis and Judgement

The Court delved into the intricacies of relevant provisions of the RP Act. At the outset, it noted that as per the well settled legal position, right to contest election or to question the election by means of an Election Petition is neither common law nor fundamental right, but only a statutory right governed by the statutory provisions of the RP Act. It reiterated that in an Election Petition the pleadings have to be precise, specific and unambiguous, and if it fails to disclose a cause of action, it is liable to be dismissed. Thus, noted that the cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the RP Act.

The Bench considered the allegations made by the respondent and examined the submissions made by both the parties with reference to the legal provisions to ascertain the allegations. With regard to allegations on suppression and misrepresentation of facts it stated that the same did not fall within the definition of “Corrupt practice” of “undue influence” as envisaged in Section 123(2) of the RP Act.

It pointed out that a charge of “Corrupt practice” is easy to level but difficult to prove because it’s criminal charge nature and has to be proved beyond doubt. Accordingly, ruled that the standard of proof required for establishing a charge of “Corrupt practice” is the same as is applicable to a criminal charge. Thus, it asserted that the allegation of corrupt practice have to be precise, specific, and unambiguous, whether it is bribery or undue influence or other corrupt practices as stated in Section 123 of the Act. It said that if it is corrupt practice in the nature of undue influence, the pleadings must state the full particulars with regard to the direct or indirect interference or attempt to interfere by the candidate, with the free exercise of any electoral right as stated in Section 123(2) of the Act.

The Supreme Court in light of the above analysis held that if the allegations contained in Election Petition do not set out grounds as contemplated in Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, then it is liable to be rejected under Order VII, Rule 11 of CPC. Therefore, it dismissed the Election Petition filed by the respondent before the High Court challenging the Assam Assembly Election of AIUDF leader.

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Judgement Reviewed by – Keerthi K

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