New Delhi, Nov 9 The Supreme Court on Wednesday said if a candidate fails to disclose conviction for holding a dharna, a non-substantive offence, then it would not amount to corrupt practices under the Representation of People Act.
A bench of Justices S. Abdul Nazeer and V. Ramasubramanian allowed an appeal by Ravi Namboothiri, whose election as councillor in Kerala's Annamanada Gram Panchayat was declared null and void as he did not disclose his conviction for an offence under the Kerala Police Act for holding a dharna in front of the Panchayat office.
The bench noted that the conviction of the appellant was actually for the disobedience of the directions issued by a police officer.
"This was admittedly in connection with a dharna which the appellant staged in front of the Panchayat office, along with a group of his supporters. Therefore, the question that we are obliged to consider is as to whether the non-disclosure of the conviction for such offences would also come within the purview of Section 102(1)(ca) of the Act", it noted.
The bench said while offences under the Indian Penal Code or under special enactments such as Prevention of Corruption Act, Arms Act and so on and so forth are substantive offences, the commission of which may make a person a criminal, an offence under certain enactments such as Kerala Police Act are not substantive offences.
It said just as strike is a weapon in the hands of the workmen and lock-out is a weapon in the hands of the employer under labour welfare legislations, protest is a tool in the hands of the civil society and police action is a tool in the hands of the establishment.
The top court said the provisions of the law can't be stretched to such an extent to declare the election of a candidate as void for such non-disclosure.
"The Kerala Police Act, 1960 is actually the successor legislation of certain police enactments of the colonial era, whose object was to scuttle the democratic aspirations of the indigenous population. This aspect should be kept in mind before applying blindfold, the principle 'what is sauce for the goose is sauce for the gander'."
The top court said all state enactments such as Kerala Police Act, Madras Police Act etc are aimed at better regulation of the police force and they do not create substantive offences. "This is why these Acts themselves empower the police to issue necessary directions for the maintenance of law and order and the violation of any of those directions is made a punishable offence under these Acts," it added.
"We are of the considered view that the District Court and the High Court were wrong in declaring the election of the appellant to be void on the ground that the failure of the appellant to disclose in Form 2A, his conviction under the Kerala Police Act amounted to 'undue influence on the free exercise of the electoral right' and also a violation of Section 52(1A) read with Section 102(1) (ca) of the Kerala Panchayat Raj Act. Hence, the appeals are allowed, the impugned orders are set aside."
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