RANJEET KUMAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner is an elector from Babubarhi Assembly Constituency, which is part of 7, Jhanjharpur Parliamentary Constituency. He has filed this election petition under Sections 80, 80A, 81 of the Representation of the People Act, 1951 (hereinafter referred to as the "Act") questioning the validity of the election of the sole respondent from 7, Jhanjharpur Parliamentary Constituency held on 23.04.2009 on the ground that the sole respondent while submitting his nomination paper violated the right to information of the electors of the said constituency, as read into, interpreted, declared by the Hon'ble Supreme Court while considering the different facets of right to freedom of speech and expression enshrined in Article 19 (1)(a) of the Constitution of India in the case of Union of India Vs. Association for Democratic Reforms and Another, 2002 5 SCC 294(hereinafter referred to as the case of Association for Democratic Reforms) vide paragraph 48 of the judgment dated 2.5.2002, whereunder Election Commission of India was directed to call for information on affidavit by issuing necessary order in exercise of the power under Article 324 of the Constitution from each candidate seeking election to Parliament/State Legislature as a part of his nomination paper about the antecedent, assets, liabilities of the candidate, spouse and other dependents.

(2.) It is submitted by the learned counsel for the petitioner that in order to give effect to the pronouncement of the Hon'ble Supreme Court in the case of Association for Democratic Reforms, the Election Commission of India issued order no.3/ER/2002/Js-II/Vol.III dated 28.06.2002 authorizing the Returning Officer to reject the nomination paper of the candidate who furnished any wrong, incomplete or suppressed material information about his antecedent, assets, liability of self, spouse and dependents in the affidavit filed along with the nomination paper. The Parliament in order to give effect to the direction of the Hon'ble Supreme Court in the case of Association for Democratic Reforms (supra) inserted Sections 33A, 33B in the Act by Act No.72 of 2002 with effect from 24.8.2002. Section 33A required the candidate to furnish information under the Act or the Rules made thereunder together with his antecedents. Section 33B of the Act required the candidate to disclose only those informations which are required under the Act and the Rules and no other information directed to be disclosed /furnished under judgment, decree or order of any Court. Validity of Section 33B of the Act was challenged as ultra vires before the Hon'ble Supreme Court in the case of People s Union for Civil Liberties (PUCL) and Another Vs. Union of India and Another., 2003 4 SCC 399Section 33B was declared ultra vires, however, with prospective effect i.e. from the date of the judgment after observing in paragraphs 73, 123 that no exception can be taken to the insistence of affidavit with regard to the matters specified in the judgment of the Supreme Court in the case of Association for Democratic Reforms. The direction of the Election Commission to the Returning Officer to reject the nomination paper after conducting summery enquiry at the time of scrutiny of the nomination paper for furnishing wrong or concealing material information by the candidate in the case of assets and liabilities of the candidate, spouse and dependent was not approved by the Hon'ble Supreme Court and the Election Commission was directed to revise its instructions in the light of the directions issued in the case of Association for Democratic Reforms as also provisions of the Act, as in the case of assets and liabilities it would be very difficult for the Returning Officer in a summary enquiry to consider the truth or otherwise of the details furnished with reference to the documentary proof of the assets and liabilities of the candidate. Section 33B having been held ultra vires with prospective effect i.e. from the date of judgment 13.03.2003 in the case of People's Union for Civil Liberties (supra) candidate contesting election to the Parliament/State Legislature during the period between date of enactment of Section 33B i.e. 24.8.2002 and the date of judgment 13.3.2003 cannot be held liable for not furnishing the assets, liability of self, spouse and dependents in the light of the earlier judgment of the Supreme Court dated 2.5.2002 in the case of Association for Democratic Reforms (supra).

(3.) It is further submitted on behalf of the election petitioner with reference to the averments made in paragraphs- 23-29, 32, 33 of the Election Petition read with affidavit filed by the sole respondent along with his nomination paper, Exhibit- 6 that the respondent while filing nomination paper along with the affidavit deliberately withheld information about the assets and liabilities of his first wife Smt. Sunita Devi in the format filed along with his nomination paper and thereby violated the right to information of the election petitioner as also of the other electors of the Constituency leading to non-compliance of Article 19(1)(a) of the Constitution by the respondent and his election is fit to be set aside under Sections 100(1)(d)(iv) of the Act, which inter alia empower the High Court to declare the election of the returned candidate to be void for non-compliance of the provisions of the Constitution by the returned candidate. Learned counsel for the petitioner further submitted that any breach/non-compliance of the constitutional provisions by successful candidate in the election held under the Act shall enable the High Court to declare his election void with reference to the provisions contained in Section 100(1)(d)(iv) of the Act as the word Constitution used therein is general, purpose oriented and cannot be limited to the constitutional provisions referred to in Section 36 of the Act. In this connection, reliance was placed on the Constitution Bench judgment in the case of Mohindar Singh Gill Versus Chief Election Commissioner, 1978 AIR(SC) 851, paragraphs-81, 82, 83. Aforesaid submissions made on behalf of the petitioner has also been incorporated in the written submissions filed on his behalf, which is on record.