Every Non – Disclosure By Candidate Won’t Make Nomination Invalid Unless It Is Substantially Affecting Election Outcome: Supreme Court

Introduction

In the landmark judgment of Karikho Kri V. Nuney Tamang, a two – judge bench of the Hon’ble Supreme Court of India consisting of Hon’ble Mr. Justice Anriuddha Bose and Sanjay Kumar held that it is not necessary for a candidate to declare every piece of movable property owned by him/her or their family members such as clothing, shoes, crockery, furniture and other items unless the value of the same constitutes a sizeable asset.

Background of the Case

An election petition was filed by the petitioner Mr. Nuney Tamang before the Itanagar Bench of the Assam High Court at Nagaland, Assam, Mizoram and Arunachal Pradesh for obtaining a declaration that the electoral process of Mr. Karikho Kri who was an independent candidate and emerged victorious in the elections of Arunachal Pradesh Legislative Assembly was invalid and void on the grounds that there was a violation of numerous provisions of the Representation of People Act 1951 such as Sections 100(1)(b), Section 100 (1)(d)(i) and Section 100(1)(d)(iv). The petition was partly accepted to the extent of declaring the election of the Defendant karikho Kri as void but rejected Nuney Tamang’s prayer of declaring himself as a duly elected candidate from the Indian National Congress.

In reference to the judgment in the election petition, two appeals arose before the Hon’ble High Court, each filed by both the parties respectively and the Hon’ble Court held that the elections for the particular constituency would not be re–held for the said constituency and allowed the elected representative i.e., Karikho Kri to govern his constituency as an elected representative by utilising all the privileges and rights that are bestowed upon an elected member of the house.

Analysis

In the present case, the substantial question of law arose as to whether the non – disclosure of three vehicles which were owned by the wife and son of the appellant was enough to constitute the offence of “undue influence” as laid down under Section 123(2) of the Act which discusses interference of the candidate or his agent in the electoral process. Since it was already held by the Hon’ble High Court that non – disclosure of such material information like vehicles owned by the candidate or his family members is enough to constitute an offence under the above provisions, the Hon’ble Supreme Court noted that since the vehicles had been handed over to their new owners through a valid sale but the transfer of the registration has not yet been completed by the concerned authorities, this does not make the previous owners liable or in control of the vehicle. Therefore, the subordinate courts have gravely erred in considering this issue. As a result, the non – disclosure of these three vehicles cannot be considered an error against the Appellant – Respondent and therefore is not an attempt to unduly influence the voters.

Additionally, the Hon’ble Apex Court, while considering the right of the voters to know about the candidate’s personal information, held that it is not acceptable or reasonable for a candidate to lay down his personal life completely bare for public view since the latter’s right to privacy shall also prevail in consonance with the right to information of the public at large. Therefore, the matters which are of no concern to the voters and fall within the private realm of the candidate or may violate his privacy may be withheld from the voters.

The Court also noted that every item of movable property of the candidate or his/her dependent family members may not be declared unless it carries such intrinsic value that it constitutes a sizeable asset in itself or categorically displays his lifestyle or other information which may have a material bearing upon his candidature. Secondly, the disclosure of substantial issues as opposed to insubstantial issues also may not have an impact upon the candidature or result of the election and it may also be kept in mind that there is no fixed mandate upon every disclosure irrespective of its impact which would amount to a defect of substantive capacity and jeopardise the result of the election or amount to a corrupt practice.

Conclusion

The court has rightfully laid down in the present case that “every defect in the nomination filing 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”  and where there are no actual dues in the filing of nomination by the candidate and such inconsistencies do not constitute a sizeable difference in itself, there are no sufficient grounds in holding a validly constituted election as invalidated. Therefore, a validly constituted democratic process of elections cannot be nullified merely upon suppression of immaterial information.

Even though this judgment has cleared the difference as to whether a candidate needs to disclose each and every detail of his/her personal life in the nomination and preserved the right to privacy of the candidate along with the right to information of the public at large, thereby striking a balance under Article 21 of the Constitution, the judgment has also opened gates as to what shall constitute material information and what shall be the limit to which suppression of information can be deemed to be valid. Therefore, both the legislature and judiciary should make attempts to consider a holistic definition for the same in order to ease the process of electoral democracy.

King Stubb & Kasiva,
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