What was the petition challenging DMK MP Kanimozhi’s election, now dismissed by Supreme Court?

Why did Kanimozhi approach the Supreme Court?

On May 23, 2019, Kanimozhi was elected from the Thoothukudi constituency in the 17th Lok Sabha elections with a margin of more than 3 lakh votes against her closest competitor, BJP’s Tamilisai Soundararajan. In the aftermath of her victory, one A.Santhana Kumar, claiming to be a voter, challenged her election by filing an election petition before the Madras High Court.

After the HC’s refusal to quash the election petition challenging her 2019 election, the DMK MP approached the SC (‘Kanimozhi Karunanidhi vs. A. Santhana Kumar & Ors’).

Kumar’s election petition alleged that Kanimozhi “intentionally suppressed” her husband’s Permanent Account Number (PAN) in her election affidavit, which required her to disclose her and her family’s assets and liabilities and their income tax status. It was also contended that Kanimozhi had violated various provisions of the Representation of People Act, 1951.

On what grounds was Kanimozhi’s election challenged?

The election petition challenged Kanimozhi’s election under Sections 80, 80A, and 100 (1) (d) (iv) of the Representation of the People Act (RPA), 1951, and sought to declare it as void and be set aside.

Section 80 states that no election shall be called into question, except by an election petition presented as per the provisions of Part VI, which deals with “disputes regarding elections”. Section 80A confers upon High Courts the jurisdiction to try such election petitions.

Kanimozhi’s election was also challenged under Section 100 (1) (d) (iv), which allows High Courts to declare a duly elected candidate’s election as void over non-compliance with the provisions of the Constitution or the RPA, or any rules or orders made under it.

Further, the election petition stated that the information sought by the Election Commission of India (ECI) on the income tax paid by a candidate’s spouse was not provided by Kanimozhi in her affidavit or Form 26 (a document required to be submitted by contesting candidates), both of which were submitted along with her nomination papers. Arguing that Kanimozhi “intentionally suppressed” the same from electors, the petition challenged her alleged non-compliance with Article 324 of the Constitution, which vests the superintendence, direction, and control of elections with the ECI.

The petition also said that Kanimozhi had not complied with Rule 4A of the Conduct of Elections Rules, 1961, read with Section 33 of the Act. Rule 4A deals with the “form of affidavit to be filed at the time of delivering nomination paper”, whereas Section 33 of the RPA relates to the presentation of a nomination paper and the requirements for a valid nomination.

Responding to this, Kanimozhi termed the allegations as “wholly vague and bereft of material facts” and added that they did not meet the requirements of Section 83(1) (a) of the RPA, which makes it mandatory for all election petitions to contain a concise statement of all material facts relied on.

What did the Supreme Court say?

Calling the RPA a “complete and self-contained code within which must be found any rights claimed in relation to an election dispute”, the court reiterated the law laid down by various Constitutional Benches on it since 1952. Through judgments in ‘N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency & Ors.’ (1952), ‘Jagan Nath vs. Jaswant Singh & Ors’ (1954) and other cases, it explained the various facets of the RPA relating to the “nature of the right to elect, the right to be elected, and the right to dispute an election.”

The court stated that the right to elect, though fundamental to democracy, is neither a fundamental nor a common law right. “It is purely a statutory right. Similarly, the right to be elected and the right to dispute an election are also statutory rights. Since they are statutory creations, they are subject to statutory limitations,” the court said.

Why was the petition dismissed?

On the alleged non-compliance with Section 83(1)(a) of the RPA by the DMK MP, the court said an election petition must contain a concise statement of material facts, without which it is liable to be dismissed. It referred to its 2004 ruling in ‘Mahadeorao Sukaji Shivankar vs. Ramaratan Bapu & Ors.’ here.

It also added that the facts are to be those which “would afford a basis for the allegations made in the petition and would constitute the cause of action.” The omission of a single material fact leading to an incomplete cause of action would allow an election petition to be “summarily dismissed”, it said.

Dismissing the election petition, the court observed that Kanimozhi, in her election documents, had mentioned that her husband was working as a consultant in Singapore and had thus stated “No” to the question on the income tax dues of her spouse. Deeming this to be suppression of “material facts,” the election petition “made very bald and vague allegations” without going into how exactly they violated the relevant laws and rules, the court noted.

The court also said that if the election petitioner thought that Kanimozhi suppressed details, it was obligatory on his part to state in the election petition “what was the Permanent Account Number of the spouse” and how the other details furnished about her husband in the said Form No. 26 were incomplete or false.

It concluded that the present petition failed to show to “how there was non-compliance with provisions of the Constitution or of RP Act or of the Rules or Order made thereunder and “how such non-compliance had materially affected the result of the election” for declaring the election to be void.