Supreme Court Analysis Of Compliance With Section 83(1)(a) Of The Rp Act In Election Petition And The Importance Of Material Facts In Establishing The Cause Of Action Under Section 100(1)(d)(iv).

Case title:

Kanimozhi Karunanidhi Vs. A. Santhana Kumar & Ors.; Kanimozhi Karunanidhi Vs. A. Santhana Kumar & Ors.

Date of Order:

04.05.2023

Bench:

Hon’ble Justice Bela M. Trivedi

Parties:

APPELLANT- KANIMOZHI KARUNANIDHI

RESPONDENTS- A. SANTHANA KUMAR & ORS;  A. SANTHANA KUMAR & ORS.

SUBJECT

The person who filed two appeals (who will be referred to as the candidate who was rejected) is contesting the lawfulness of a single order dated 19.11.2019, issued by the High Court of Judicature in Madras, in regards to two original applications (Nos. 929/2019 and 930/2019) filed by the same person in relation to Election Petition No. 3/2019. The High Court dismissed both applications.

IMPORTANT PROVISIONS

The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to the Parliament and to the legislature of every State and of elections to the offices of President and Vice-President held under the Constitution have been vested in the Election Commission under Article 324 of the Constitution of India.

Article 325 provides that there shall be one general electoral roll for every territorial constituency and that no person shall be ineligible for inclusion in such rolls on the grounds only of religion, race, caste, sex or any of them.

Article 326 provides that elections to the House of people and to the legislative assemblies of States shall be on the basis of adult franchise.

Article 327 enables Parliament to make laws with respect to all matters relating to elections to either House of Parliament or to the Houses of the legislature of a State.

Article 328 enables the legislature of a State, if Parliament has not made such legislation, to make laws with respect to all matters relating to elections to the Houses of legislature of the State.

Article 329 bars interference by courts in electoral matters and clause (b) in particular provides that no election to the either House of Parliament or to the House or either House of the 9 legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.

Part-VI of the R.P. Act, 1951 deals with the disputes regarding Elections, and Chapter II thereof deals with the presentation of the Election petitions to the High Court. 

Section 80 thereof states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part-VI.

“Section 81. Presentation of Petitions- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of Section 100 and Section 101 to the High Court by any candidate at such election or any elector [within forty10 five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates].

As per Section 86, the High Court is empowered to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Section 87 deals with the procedure to be followed by the High Court

The grounds on which the High Court could declare the election of the returned candidate to be void are enumerated in Section 100

The legal principles outlined in the aforementioned cases can be summarized as follows:

• Section 83(1)(a) of the RP Act, 1951 requires an Election petition to contain a concise statement of material facts on which the petitioner relies. Failure to include material facts can result in the petition being dismissed under Clause (a) of Rule 11 of Order 7 of the Code.
• The material facts must constitute the cause of action and include all the facts necessary for the petitioner to prove their case. If a single material fact is omitted, the cause of action is incomplete and the statement of the petition becomes bad.
• Material facts can include both positive and negative statements, and they represent the entire bundle of facts necessary to establish the complete cause of action.
• To declare an election void under Section 100(1)(d)(iv) of the RP Act, the Election petitioner must specifically aver that the non-compliance with the provisions of the Constitution or Act or any rules or orders made under the Act, materially affected the result of the election concerning the returned candidate.
• An Election petition is a serious matter and cannot be treated lightly or used for vexatious purposes.
• Failure to include a single material fact, or a concise statement of material facts, can lead to the summarily dismissal of an Election petition under Clause (a) of Rule 11 of Order VII CPC, as well as the mandatory requirements prescribed by Section 83 of the RP Act.

OVERVIEW

• The background leading to the current appeals is as follows: The Chief Election Commissioner issued a notification on 19.03.2019 for the elections to the 17th Lok Sabha, which were scheduled to take place on 18.04.2019. The appellant filed her nomination for the No. 36-Thoothukudy Lok Sabha Constituency on 19.03.2019, along with the required affidavit in Form No. 26, as per Rule 4A of the Conduct of Election Rules 1961. 
• The Returning Officer scrutinized the nomination papers on 27.03.2019, and the elections were held on 18.04.2019 as planned. On 23.05.2019, the appellant was declared elected with a margin of 3,47,209 votes.
• The Election petitioner/respondent no. 1, who claims to be a voter, filed Election Petition No. 3/2019 before the High Court under Section 80, 80A, 100(1)(d)(iv) of the Representation of the People's Act, 1951 (referred to as the RP Act), seeking a declaration that the election of the returned candidate (i.e., the appellant) from No. 36, Thoothukudy Lok Sabha Constituency, in the Lok Sabha election conducted pursuant to the Chief Election Commissioner's notification dated 19.03.2019, was void and should be set aside. 
• The grounds for this were that the returned candidate did not provide information regarding the payment of income tax by her spouse in the affidavit (Form no.26) submitted along with the nomination papers, and had intentionally suppressed and failed to disclose this information to the electors.
• In the Election petition, the returned candidate/appellant filed two Original Applications (OA). In OA No. 929/2019, the returned candidate prayed to strike off paragraphs 5 to 17 of the Election petition, while in OA No. 930/2019, she prayed for the Election petition to be rejected immediately on the ground that the allegations in it were vague and lacked material facts, making them insufficient under Sections 81, 83, 86, and 100 of the said Act. 
• The returned candidate also claimed that paragraphs 5 to 17 of the Election petition lacked material facts and did not disclose any cause of action. The High Court dismissed both Original Applications filed by the returned candidate in its impugned common order.

ISSUES RAISED

Whether the respondent/election petitioner had complied with the requirements of Section 83(1)(a) of the RP Act, by stating “material facts” in the Election petition, constituting cause of action and the ground as contemplated in Section 100(1)(d)(iv) of the RP Act, for declaring the election of the Appellant-returned candidate to be void

ARGUMENTS ADVANCED BY THE APPELLANT

The appellant's counsel, Senior Advocate Mr. P. Wilson, presented the following arguments:

(i) As per Section 83(1)(a) of the RP Act, all election petitions must contain a concise statement of material facts on which the petitioner relies. In this case, the respondent has failed to plead the material facts, and hence, the election petition should be dismissed in limine.

(ii) Referring to the judgments in the cases of Ram Sukh vs. Dinesh Aggarwal and Hari Shanker Jain vs. Sonia Gandhi, he argued that material facts should include positive statements of facts, as well as positive averments of negative facts if necessary. The absence of such facts would render the election petition liable to be dismissed.

(iii) He further cited the case of Samant N. Balkrishna & Anr. vs. George Fernandez & Ors. and submitted that the failure to plead even a single material fact would lead to an incomplete cause of action, and the statement of claim would become bad.

(iv) He pointed out that although the respondent has alleged that the appellant suppressed facts in the Form No. 26 Affidavit, he has failed to state which facts were suppressed and how the non-compliance of the provisions of the Constitution or the Act or the rules made thereunder had materially affected the result of the election.

(v) He argued that the entire election petition filed by the respondent is based on vague assumptions, presumptions, and conjectures, without stating the material facts, particularly the material facts in support of the ground contained in Section 100(1)(d)(iv) of the said Act.

(vi) Finally, he contended that if the columns regarding the disclosure of income tax, assets and liabilities, and their spouses' assets and liabilities are not applicable in the fact situation, it could not amount to suppression of facts.

ARGUMENTS ADVANCED BY THE RESPONDENT

The respondent no. 1's counsel, Mr. Mukesh S., presented the following arguments:

(i) The appellant has violated the ruling of the Supreme Court in the case of Union of India vs. Association for Democratic Reforms & Anr. In this case, the Court had directed the Election Commission to obtain details of assets and liabilities of candidates and their family members, without differentiating the status of citizenship.

(ii) The appellant did not disclose the status of filing of income tax returns of her spouse in a foreign country, as required in Form No. 26. Instead, the appellant only stated that her spouse was a foreign citizen without revealing the income tax reference number provided in Singapore.

(iii) The appellant was obligated to disclose the details of the status of filing of income tax returns by her spouse in a foreign country, and her failure to do so amounted to the suppression of facts and non-compliance with the statutory rules under the said Act.

(iv) The appellant's non-disclosure of the financial status of her family deprived voters of the opportunity to make an informed decision.

(v) The lack of transparency and non-disclosure of facts in Form No. 26 had a material impact on the result of the election.

JUDGEMENT ANALYSIS

• The respondent-election petitioner in this case has contested the appellant's election on the basis that the outcome of the election, with respect to the appellant, was significantly influenced by the failure to comply with Article 324 of the Constitution and Rule-4A of the aforementioned Rules, as well as Section 33 of the Act. It is important to note that Section 33 of the Act pertains to the submission of nomination papers and the requirements for a valid nomination. 
• Section 36, on the other hand, deals with the scrutiny of nominations by the Returning Officer. According to subsection (2), the Returning Officer has the authority to reject any nomination on the grounds specified therein, either on the basis of objections made to any nomination or on his own motion.
• One of the grounds for rejection is the failure to comply with any of the provisions of Section 33. Subsection (4) of Section 36 specifies that the Returning Officer may not reject any nomination paper on the basis of any defect that is not of a significant nature.
• Various Constitutional Benches since 1952 have explained and interpreted the scheme of Constitutional and statutory provisions in relation to the right to elect, the right to be elected, and the right to dispute an election. 
• Notable cases include N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency & Ors., Jagan Nath vs. Jaswant Singh & Ors., Bhikji Keshao Joshi & Anr. vs. Brijlal Nandlal Biyani & Ors., and Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore & Ors. 
• The authorities have made it clear that while the right to elect is fundamental to democracy, it is not a fundamental right or a common law right, but a statutory right, subject to statutory limitations. Similarly, the right to be elected and the right to dispute an election are also statutory rights. 
• The entire election process, from the issuance of the notification calling for a constituency to elect a member or members up to the final resolution of the dispute concerning the election, is regulated by the Representation of People Act 1951, which is a complete and self-contained code within which any rights claimed in relation to an election dispute must be found. 
• It is important to note that an election petition is not an action at common law or in equity but a special jurisdiction to be exercised in accordance with the statute that creates it. 
• Any concepts familiar to common law and equity must remain strangers to election law unless they are statutorily embodied.
• It is worth mentioning that Rule-4A and Form-26 were added to the rules in response to the observations made by the Court in the aforementioned case. These provisions mandate candidates to furnish information and details in the form of an affidavit to be submitted along with their nomination papers.
• The Supreme Court has established a settled law regarding the requirement of Section 83(1)(a) of the EP Act, which mandates that an Election petition must contain a brief statement of material facts that the petitioner relies on. Non-compliance of this section, along with Order VII, Rule 11 of CPC, could lead to the dismissal of the Election Petition at the outset. "Material facts" refer to the facts that, if proven, would entitle the petitioner to the relief sought. 
• The court must decide if it could have given a direct verdict in favor of the election petitioner if the returned candidate had not appeared to oppose the Election petition based on the facts stated in the petition. Material facts may comprise positive or negative statements of facts that form the cause of action as understood in the Code of Civil Procedure 1908.

CONCLUSION

• Given the legal position mentioned earlier, Supreme Court examined thatt if the election petitioner has complied with Section 83(1)(a) of the RP Act, by including "material facts" in the election petition, which establish the cause of action and grounds under Section 100(1)(d)(iv) of the RP Act, to declare the election of the Appellant-returned candidate as void. 
• The respondent's counsel argues that the Election Commission of India had requested information regarding the filing of income tax returns by candidates and their family members, and the petitioner had provided information about her spouse working as a consultant in a foreign country, earning a salary, and having a bank account in Singapore. 
• However, the petitioner failed to disclose the status of filing income tax returns by her spouse in the foreign country. 
• The respondent claims that these material facts are sufficient to constitute the cause of action for the election petition.
• However, the allegations made by the election petitioner are vague and do not provide any material facts about the non-compliance of provisions of the Constitution of India, the RP Act or rules made under it. 
• If we read the election petition together with the information provided by the appellant-returned candidate in Form No. 26, we see that the appellant has filled all columns of the form, providing information about her Permanent Account Number and the status of filing income tax returns for herself and her husband, wherever applicable. 
• If the petitioner claims that the appellant suppressed her husband's PAN number and information about the non-payment of income tax in a foreign country, the petitioner must provide the PAN number that was allegedly suppressed and explain how the other details furnished in the form were incomplete or false.
• Mere vague allegations without any basis would not be sufficient to fulfill the requirement of stating material facts in the Election Petition. Positive statements of facts and even negative facts must be stated as material facts constituting the cause of action. 
• Primary and basic material facts must be pleaded by the Election petitioner in support of the case to show the cause of action, and the omission of a single material fact would lead to an incomplete cause of action.
• It is important to note that Rule 4A of the RP Act requires the candidate to furnish an affidavit in Form 26 along with the nomination paper, and the Returning Officer is empowered to reject any nomination on the grounds mentioned in Section 36(2), including failure to comply with any of the provisions of Section 33 or Rule 4A of the Rules. 
• However, during the scrutiny of the nomination paper and the affidavit in Form 26 by the Returning Officer, no objections were raised, and no non-compliance was found. 
• Even if the election petitioner did not have the opportunity to see the Form No. 26 filled in by the Appellant-returned candidate, and the Returning Officer did not properly scrutinize the nomination paper, and the election petitioner had the right to file the Election petition under Section 100(1)(d)(iv) of the RP Act, it would not be enough to support the petitioner's case.