Voter Has Right To Know Full Background Of Candidate; Right To Vote Based On Informed Choice Crucial To Democracy : Supreme Court

The Supreme Court on Monday observed that democracy being an essential feature of the Constitution and the right to vote being a statutory right, the voter has the right to know about the full background of a candidate.

“The elector or voter’s right to know about the full background of a candidate- evolved through court decisions- is an added dimension to the rich tapestry of our constitutional jurisprudence” the Apex Court observed.

A division bench of Justice S Ravindra Bhat and Justice Aravind Kumar was considering a challenge to the order of the Telangana High Court that dismissed an application seeking rejection of the election petition filed against Bhim Rao Baswanth Rao Patil, the appellant. The election petition had been filed for non disclosure of certain pending cases against him. The appellant had contended that the election petition did not disclose any cause of action and was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.

While dismissing the appeal and affirming the High Court order, the Top Court observed:

“the right to vote, based on an informed choice, is a crucial component of the essence of democracy. This right is precious and was the result of a long and arduous fight for freedom, for Swaraj, where the citizen has an inalienable right to exercise her or his right to franchise. This finds articulation in Article 326 of the Constitution which enacts that “every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election”.

The Apex Court also observed that while democracy is an essential feature of the Constitution, paradoxically the right to vote is yet to be recognized as a Fundamental Right:

“Democracy has been held to be a part of one of the essential features of the Constitution. Yet, somewhat paradoxically, the right to vote has not been recognized as a Fundamental Right yet; it was termed as a “mere” statutory right.”

The appellant in this case was elected from the Zaheerabad in 2019. An election petition was filed challenging his election under Sections 81 and 84 read with Sections 100(1)(d)(i)(ii)(iii) & (iv) of the Representation of People Act, 1951 on the ground of non disclosure of pending cases against him.

The appellant then filed an application under Order VII Rule 11 of the CPC to reject the election petition, which was denied by the High Court. The High court was of the view that based on the facts on record there was no compelling reason to reject the election petition.

The Apex Court observed that the appellant has not denied the allegations of past convictions per se, but contended that the application ought to be rejected as no disclosure of this kind was needed as they did not come under the class of offences under Section 33A of the Act.

“The impugned order, as noticed earlier, is premised on the reasoning that any material brought on the record by the successful candidate who is a respondent in the election proceedings, ipso facto cannot be considered within the framework of Order VII Rule 11 CPC to reject the plea altogether. That understanding in this Court’s opinion is correct. “ the Apex Court observed.

The Apex Court explained that Section 8 is for disqualification of elected candidates, when they are convicted of specific offences. Under Section 33A compels candidates to disclose information about their criminal antecedents. “The idea behind this provision is to ensure transparency and enable the voters to make an informed choice while casting the ballot.” The Apex Court observed.

Section 33-B which was inserted by the Representation of the People (Third Amendment) Act, 2002, that provided that “…no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under this Act or the Rules made thereunder” was later held to be invalid and unconstitutional in People’s Union for Civil Liberties v Union of India, the Apex Court observed. 

The Top Court also referred to the guidelines issued by the Election Commission on 10.10.2018 requiring disclosure of pending criminal cases and those in which candidate had been convicted.

The Apex Court while dismissing the challenge of the Appellant observed that the truth or otherwise of anything is ordinarily a matter of evidence, in a full-blown trial:

“Even if the allegations regarding non-disclosure of cases where the appellant has been arrayed as an accused, are ultimately true, the effect of such allegations (in the context of provisions of law and the non-disclosure of all other particulars mandated by the Election Symbols orders) has to be considered after a full trial. The admission of certain facts (and not all) by the election petitioner cannot be sufficient for the court to reject the petition, wholly. Even in respect of the undeniable nature of the judicial record, the effect of its content, is wholly inadequate to draw a decree in part.”

It was argued by Sr. Adv. Sundaram appearing on behalf of the appellant that the reference made to a case pending against the candidate under the Indian Forest Act was a clear case of interpolation. With regard to non-disclosure of two cases in respect of the Payment of Wages Act and Minimum Wages, it was argued that even upon conviction, the minimum threshold required under Section 33A of the Act is not satisfied.

Sr. Adv. Dr. A.M. Singhvi appearing for the respondent argued that the High Court correctly appreciated the law relating to Order VII Rule 11 of the CPC. He also argued that Courts are duty bound to examine the allegations against candidates within the framework of the statute without being hyper-technical in their approach and oblivious of the ground realities.

The Apex Court while dismissing the appeal and imposing costs concluded:

“this court is of the opinion that if the appellant’s contentions were to be accepted, there would be a denial of a full-fledged trial, based on the acknowledgement that material facts were not suppressed. Whether the existence of a criminal case, where a charge has not been framed, in relation to an offence which does not possibly carry a prison sentence, or a sentence for a short spell in prison, and whether conviction in a case, where penalty was imposed, are material facts, are contested. This court would be pre-judging that issue because arguendo if the effect of withholding some such information is seen as insignificant, by itself, that would not negate the possibility of a conclusion based on the cumulative impact of withholding of facts and non-compliance with statutory stipulations (which is to be established in a trial). For these reasons, this court is of the opinion that the impugned judgment cannot be faulted.”

Case Title: Bhim Rao Baswanth Rao Patil V. K. Madan Mohan Rao & Ors, Special Leave Petition (C) No. 6614 Of 2023

Citation: 2023 LiveLaw (SC) 563

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