While most commendably according the paramount importance to integrity, probity and ethics in Indian politics, the Kalaburgi Bench of Karnataka High Court in a learned, laudable, logical, landmark and latest judgment titled Abida Begum vs Mohd Ismail & Ors in Writ Petition No. 203232 of 2022 (LB-ELE) and cited in NC: 2023:KHC-K:5857 that was pronounced as recently as on July 26, 2023 has laid down in no uncertain terms that non-disclosure of assets or suppression of the assets of the candidate, or his or her spouse and dependent members would certainly amount to corrupt practice requiring disqualification of the candidature. In other words, the Court has made it indubitably clear that failing to disclose assets or concealing assets of a candidate, their spouse, or dependents constitutes a corrupt practice. There can be no two views that corrupt practices in elections deserves to be taken most seriously and the corrupt candidates should be barred from contesting elections. When Centre can amend all our penal laws, then why can’t most strict provisions be inserted to ensure that corrupt politicians don’t grab power which is the root cause of politics becoming the favourite den of all the corrupt people in India?
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Suraj Govindaraj sets the ball in motion by first and foremost putting forth in para 1 that:
The petitioner is before this Court seeking for the following relief:
To set aside the judgment in Election Petition No.11/2021 passed by Senior Civil Judge & JMFC, Shahapur, dated 31.10.2022 as per Annexure-D in the interest of justice and equity.”
As we see, the Bench discloses in para 2 that:
A notification was published by the respondent No.2 – Deputy Commissioner for election to the Gram Panchayath on 23.07.2020. The petitioner having contested was declared as elected candidate.”
To put things in perspective, the Bench envisages in para 3 that:
Respondent No.1 filed the Election Petition No.11/2021 before the Senior Civil Judge, Shahapur challenging the said election. In the said petition, the following reliefs were sought for:
- It be declared that, the petitioner is the elected for the seat of General gents in ward No 3 in gram panchayat election of Naikal-9 Tq. Wadgera Dist.Yadgir by setting aside the election of Respondent No.1
- Award the cost of proceedings to the Petitioner.
- Any other reliefs be granted to which the petitioner is entitled in the interest of justice.”
As it turned out, the Bench states in para 4 that:
The said petition came to be allowed by way of impugned order and as such, the petitioner is before this Court seeking for the aforesaid reliefs.”
Do note, the Bench then stipulates in para 8 that:
On the basis of the submission made, the points that would arise for consideration are:
- Whether non-arraigning of all the candidates to an election in an election petition where a declaration of the petitioner to be a returned candidate is sought for would result in dismissal of the Election Petition in terms of Sub-section (1) of Section 17 read with clause (a) of Subsection (2) of Section 15 of the Panchayat Raj Act, 1993
- Whether non-disclosure or suppression of the assets of the candidate in his nomination form or that of his/her spouse would amount to a corrupt practice requiring disqualification of the candidate or would it require for the petitioner in a Election Petition to establish that such suppression has resulted in an adverse impact favourable to the returned candidate in the elections?
- Whether the verifying affidavit to all Election Petitions are required to be in Form-25 of Conduct of Election Rules, in terms of Rule 94-A of the Rules?
- Whether the impugned order suffers from any legal infirmity requiring interference at the hands of this Court?
- What order?
Of course, the Bench observes in para 10.11 that:
Thus, in the present matter, there being no dispute that relief of declaration of the election petitioner as the returned candidate is sought for, the trial Court ought not to have eschewed the said relief by dismissing the relief on the ground that all the contesting candidates have not been made parties. The trial Court ought to have taken into consideration the mandate under Section 15(2)(a) of the Panchayat Raj Act and the mandate imposed by the Hon’ble Apex Court in K. Venkateswara Rao’s case (supra) and dismissed the petition in limine on the ground that all the contesting parties had not been made parties, even though the declaration of the petitioner as the returned candidate was sought for.”
Resultantly, the Bench directs in para 10.12 that:
Hence, I answer point No.1 by holding that non-arraigning of all the candidates to an election in a Election Petition where a declaration of the petitioner to be a returned candidate is sought for would necessarily result in dismissal of the Election Petition in terms of Sub-section (1) of Section 17 read with Clause (a) of Sub-section (2) of Section 15 of the Panchayat Raj Act. The said dismissal can be made by the Court trying the Election Petition suo motu or an application made by any of the respondents in the said proceedings.”
Most significantly, the Bench then succinctly holds in para 11.8 that:
In that view of the matter, I answer point No.2 by holding that non-disclosure of assets or suppression of the assets of the candidate, or his or her spouse and dependent members would amount to corrupt practice requiring disqualification of the candidature and towards this end, there is no particular requirement for the election petitioner to specifically aver or prove that the suppression has resulted in adverse impact favourable to the returned candidate in the election. The mere suppression is sufficient to invoke the provisions of Section 19(1)(b) of the Panchayat Raj Act.”
Be it noted, the Bench notes in para 12.15 that:
In the present matter, I have come to a conclusion that the affidavit is in compliance of Form-25 and as such, Prajwal Revanna’s decision (supra) though not strictly applicable, if at all the respondent in the Election Petition has raised this issue, the Court always could have permitted the petitioner to rectify it.”
As a corollary, the Bench holds in para 12.16 that:
Hence, I answer point No.3 by holding that affidavit filed by the petitioner in Election Petition No.11/2021 is in due compliance with Rule 94A of the Rules, 1961, Form-25 thereof as also Section 83 of the RP Act.”
Most commendably, the Bench holds in para 13 that:
13.1. By way of the impugned order, the trial Court came to a conclusion that since the election petitioner had not made all the contestants party to the election petition, the relief seeking for declaration that the election petitioner was a returned candidate could not be granted and as such, rejected that prayer. As held supra, the Hon'ble Apex Court has categorically come to a conclusion that in the event of a necessary party not being made a party to the Election Petition, it would be incumbent upon the Court to dismiss the petition.
13.2. In the present case, the petitioner having not only sought for setting aside the election of the respondent No.1 but also having sought for declaration that he is the returned candidate, it was but required that all the other contestants were to be made a party since it is only in their presence that any finding could be given as regards the election petitioner being a returned candidate. This aspect though would require further consideration by the Law Commission, since multiple candidates were contesting the elections, the declaration of the election petitioner as a returned candidate when votes are distributed among multiple candidates would be very difficult if not impossible, it is probably only when there are two candidates and election of one of the candidates being declared void, the other candidate could be declared as returned candidate. Even if there are three candidates, the matter could be difficult inasmuch as it cannot be ascertained as to in whose favour the votes polled by the returning candidate would have to be apportioned.
13.3. The Registrar General of this Court is directed to forward a copy of this order to the Law Commission, Government of India for consideration.
13.4. I answer point No.4 by holding that the order passed by the trial Court refusing the relief of declaration of the election petitioner as returned candidate on the ground that other contestants were not made a party and continued with the matter is not in accordance with Section 15(2)(a) of the Act when all the contestants were not made a party and relief of declaration of the Election Petition as returned candidate was sought for, the Election Petition ought to have been rejected in limine in terms of Sub-Section (1) of Section 17 of the Panchayat Raj Act.”
Finally, the Bench concludes by holding in para 14 while answering Point No. 5 that:
14.1. The writ petition is allowed.
14.2. The impugned judgment in Election Petition No.11/2021 dated 31.10.2022 passed by Senior Civil Judge and JMFC, Shahapur at Annexure-D is hereby set aside.
14.3. Election Petition No.11/2021 is dismissed.”
In essence, we thus see that the Karnataka High Court has made it absolutely clear that suppression of assets of the candidate’s spouse or dependent members amounts to corrupt practice. The Hon’ble Apex Court by referring to the decision in case of Lok Prahari vs. Union of India (2018) 4 SCC 699 has held that non-disclosure of the assets would amount to undue influence as defined under the Representation of Peoples Act, and therefore, non-disclosure of assets would amount to undue influence and consequently, a corrupt practice. So it is the bounden duty and obligation of the candidates not to suppress any information on their assets in any manner as that will tantamount to undue influence and corrupt practice and thus subsequently they would be disqualified for elections.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
