Supreme Court Dismisses Petition Challenging Election Of DMK MP Kanimozhi In 2019 Lok Sabha Elections

The Supreme Court on Thursday dismissed the election petition which has been filed in the Madras High Court challenging the election of Dravida Munnetra Kazhakam MP Kanimozhi in the 2019 Lok Sabha polls.

A Bench of Justices Ajay Rastogi and Bela Trivedi allowed the appeal filed by the DMK leader challenging the Madras High Court's refusal to dismiss election petitions disputing her election from Thoothukudi Lok Sabha constituency in the 2019 general elections.

"Election petition is dismissed, appeal is allowed", Justice Trivedi orally read out the operative portion. 

The parties concluded their submissions and the Bench reserved its judgement on April 26. The main issue that the court considered was—should a candidate standing for elections reveal the PAN details of their “foreigner” spouse.

Kanimozhi's plea stated that she had clearly mentioned that her spouse, a Singapore citizen, does not have a PAN number, and if the respondent contends that this statement is wrong, he ought to substantiate the allegation that the statement is incorrect. Without these averments, the bald and vague statement that petitioner has not provided her spouse's PAN cannot be maintained in an election petition in light of several judgments of the Supreme Court

During the hearing, Senior Advocate P Wilson appearing for the Kanimozhi had submitted  : 

“Should I be languished in court? What case will I face? Are you going to take me by surprise? I have 55 percent votes; those voters are satisfied with the information I’ve provided (regarding her husband’s PAN details)”. Since her husband is a Singapore citizen, she marked ‘not applicable’ against the column in the election nomination form which asked for her spouse’s PAN card information. This was the complainant voter’s grievance.

Further, Wilson had argued that all particulars within the election form was filled in correctly.

“She disclosed the assets of the spouse. Where does the fault lie? If you say there's false information, you have other remedies. That’s not the case here”, he said. He added that all kinds of “compliance” is done with regard to giving to appropriate answers in the columns mentioned in the election affidavit. Kanimozhi’s husband is a Singapore citizen and what’s applicable for him is the Income tax reference number in Singapore, Wilson had stated.

“I can’t disclose foreign income because there's no column”, Wilson had stated.

Wilson had submitted that the voter’s case is not that the petitioner’s husband had a PAN number and that it wasn’t filled up “deliberately”. The case is that the husband is from Singapore and so, he should’ve filled the Singapore Income Tax Reference Number. The election affidavit doesn’t seek this detail, Wilson clarified.

Turning to the other side, the Court said,

“The form the candidate was called upon to fill….. (her husband) is not holder of a PAN card. He's not filing returns, so there’s no question of income tax”.

The Respondent advocate, relying on top court judgements, argued that proper and correct information regarding election candidates aid voters in taking ‘informed’ decisions.

In an earlier hearing, the Court had orally asked if it was concealment even after Kanimozhi marked in the column seeking the PAN Details of her spouse, who is a Singapore citizen as “not applicable” in the election affidavit.

“This court is always coming forward for disclosure of criminal backgrounds (of election candidates). The form does not carry that information required. This court, to maintain the purity of the institution, let the candidates disclose. Our judgement says so, but it’s not there in the form. Now, a question to you. …..If somebody doesn’t disclose (that) information, and the form doesn’t ask about it, can you say there’s concealment on the part of the candidate?....She has filled the form. She has said that this is not applicable to me. Could it be said that there was non-compliance? Or concealment?”, ”a Bench of Justices Ajay Rastogi and Bela Trivedi had queried.

“The election was challenged by a voter on a trivial ground. There are over 9.91 lakh voters, I got 5.63 lakh votes, more than 50% of the votes. My nearest candidate got less than.3.47 lakh votes. Such was the mandate given by the people”, Wilson had apprised the Bench.

“What is that I have suppressed is not said in the election petition. That is a material fact. If he says, I’m facing a criminal case and I’ve suppressed these cases, then these are material facts and there’s a cause of action and if he goes to the Trial Court with proof, he’ll get a relief. But asking for negative evidence, saying that your husband is having a PAN number, you’ve not given that detail. Because of that your election should be disqualified. That is his case. If my husband does not have a PAN number, where’s the question of filling up this column?”, Wilson continued with his submissions.

“Isn’t it on you (the petitioner) to show that there wasn’t any concealment?”, the Bench had asked.

“The material facts are within your knowledge. The only thing here is the non-disclosure of ITR of a Singapore citizen under column 2 of the nomination form filled by you. According to the him (voter), there’s some kind of a concealment. Is it not on you to show that being a Singapore citizen, he’s not an income tax assesse in India? There’s no income generated by him in India, that’s why there’s no occasion for him to disclose it? And that’s why, there’s no concealment by the petitioner on the husband’s income…”, the Bench said

With regard to disclosure of off-shore assets column in the election affidavit, the advocate appearing for the complainant voter submitted that there’s no differentiation between a ‘local’ and a ‘foreigner’.

On filing ITR, what the candidates are essentially doing is disclosing all such details not to the Election Commission but to the electors, the advocate argued. “There’s a fiduciary relationship between me and the elector….The law is clear on how family properties and other things have to be declared. While I should not differentiate between foreign citizen and Indian citizen – If my spouse is a foreign citizen, I have to disclose that.”

The Court had also asked,

“When you are willing to fill the nomination form, you are supposed to fill all such information as being required in the form. Whenever there’s a judgement from this court for information, that has to be incorporated. As a candidate, you are supposed to disclose. The form doesn’t ask me (income details of the foreigner-husband), why should I disclose? What is the material non-disclosure with regard to concealment here?”

In 2019, a Top Court bench headed by the then Chief Justice SA Bobde observed that it understood DMK leader Kanimozhi Karunanidhi's submission that she was only required to disclose her Husband's nationality and not if he holds a PAN account, in her election affidavit .

For detailed report on the reasoning in the judgment, refer to this report.

Case Title: Kanimozhi Karunanidhi v. A. Santhana Kumar And Ors. SLP(C) No. 28241-28242/2019

Click here to read the judgment