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Sri Mairembam Prithviraj @ Prithibiraj ... vs Shri Pukhrem Sharatchandra Singh on 28 October, 2016
cites
Union Of India & Anr vs Assn.Of Unified Telecom S.P.Of ... on 11 October, 2011
However, voters' fundamental right to know the antecedents of a candidate
is independent of statutory rights under the election law. A voter is first
citizen of this country and apart from statutory rights, he is having
fundamental rights conferred by the Constitution. Members of a democratic
society should be sufficiently informed so that they may cast their votes
intelligently in favour of persons who are to govern them. Right to vote
would be meaningless unless the citizens are well informed about the
antecedents of a candidate. There can be little doubt that exposure to
public gaze and scrutiny is one of the surest means to cleanse our
democratic governing system and to have competent legislatures.”
It is relevant to mention that the Election Commission of India issued a
press note on 28.06.2002 in which there was a reference to the judgment of
this Court in Union of India v. Association for Democratic Reforms in which
it was held that information on five aspects has to be provided to the
voter. One of the five aspects pertains to the educational qualification
of the candidates. An order was issued by the Election Commission of India
on 28.06.2002 directing that full and complete information relating to the
five aspects which were mentioned in the judgment has to be furnished.
Providing incomplete information or suppression of material information on
any of the five aspects was to be treated as a defect of substantial
character by the Returning Officers.
Section 33 in The Representation of the People Act, 1951 [Entire Act]
Section 9A in The Representation of the People Act, 1951 [Entire Act]
Kisan Shankar Kathore vs Arun Dattatraya Sawant & Ors on 9 May, 2014
It is clear from the law laid down by this Court as stated above that every
voter has a fundamental right to know about the educational qualification
of a candidate. It is also clear from the provisions of the Act, Rules
and Form 26 that there is a duty cast on the candidates to give correct
information about their educational qualifications. It is not in dispute
that the Appellant did not study MBA in the Mysore University. It is the
case of the Appellant that reference to MBA from Mysore University was a
clerical error. It was contended by the Appellant that he always thought
of doing MBA by correspondence course from Mysore University. But,
actually he did not do the course. The question which has to be decided is
whether the declaration given by him in Form 26 would amount to a defect of
substantial nature warranting rejection of his nomination. Section 36 (4)
of the Act mandates that the Returning Officer shall not reject a
nomination paper on the ground of any defect which is not of a substantial
character. The declaration made by the Appellant in Form 26, filed in 2012
is not a clerical error as contended by him. The Appellant contested
election to the same constituency in 2008 and in the affidavit filed by him
in Form 26 he declared that he passed MBA from Mysore University in 2004.
In the affidavit filed by him in this election petition by way of
examination-in-chief, the Appellant stated that his nomination paper and
the enclosed affidavit were prepared and filed by his counsel Chakpam
Bimolchandra Singh on the instructions of his agent Ph. Shamu Singh. He
also stated that his counsel filled the prescribed affidavit in his own
hand-writing. The Appellant also stated that he signed the affidavit
without reading the contents and he came to know about the error only when
the Respondent raised his objection to the nomination. The Appellant
further stated that he was working in Projeon, Infosys Company and IBM till
2007 and because of his job many local friends and elders thought that he
was an MBA degree-holder. His election agent also thought that he was
holding an MBA degree due to which he instructed the Advocate Chakpam
Bimolchandra Singh to fill up column 9 of the affidavit by stating that the
Appellant is an MBA degree-holder. In his cross-examination, the
Appellant gave evasive replies to the questions relating to his educational
qualification. He stated that he does not remember whether he had
undergone MBA from Mysore University and he does not remember whether he
possesses MBA degree. Chakpam Bimolchandra Singh who was examined as DW-3
in his cross-examination denied having filled up the entries in Form 26.
He stated that he entered the educational qualifications of the Appellant
on the basis of instructions given by the election agent Shamu Singh. He
also stated that he was not present before the Oath Commissioner when the
Appellant signed the affidavit.
Section 100 in The Representation of the People Act, 1951 [Entire Act]
Durai Muthuswami vs N. Nachiappan & Ors on 23 April, 1973
“Once it is found that it was a case of improper acceptance, as there was
misinformation or suppression of material information, one can state that
question of rejection in such a case was only deferred to a later date.
When the Court gives such a finding, which would have resulted in
rejection, the effect would be same, namely, such a candidate was not
entitled to contest and the election is void.”
Mere finding that there has been an improper acceptance of the nomination
is not sufficient for a declaration that the election is void under Section
100 (1) (d). There has to be further pleading and proof that the result of
the election of the returned candidate was materially affected. But,
there would be no necessity of any proof in the event of the nomination of
a returned candidate being declared as having been improperly accepted,
especially in a case where there are only two candidates in the fray. If
the returned candidate’s nomination is declared to have been improperly
accepted it would mean that he could not have contested the election and
that the result of the election of the returned candidate was materially
affected need not be proved further. We do not find substance in the
submission of Mr. Giri that the judgment in Durai Muthuswami (supra) is not
applicable to the facts of this case. The submission that Durai Muthuswami
is a case of disqualification under Section 9-A of the Act and, so, it is
not applicable to the facts of this case is also not correct. As stated
supra, the election petition in that case was rejected on the ground of non-
People'S Union Of Civil Liberties ... vs Union Of India (Uoi) And Anr. on 18 December, 1996
The challenge to the said Ordinance was
dealt with by this Court in People’s Union for Civil Liberties (PUCL) v.
Union of India (supra) in which it was held as follows:
“78. What emerges from the above discussion can be summarised thus:
Resurgence India vs Election Commission Of India & Anr on 13 September, 2013
In Resurgence India v. Election Commission of India and Anr. (supra) this
Court held that every candidate is obligated to file an affidavit with
relevant information with regard to their criminal antecedents, assets and
liabilities and educational qualification. The fundamental right under
Article 19 (1) (a) of the voter was reiterated in the said judgment and it
was held that filing of affidavit with blank particulars would render the
affidavit as nugatory.