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There was an era when a powerful or a rich or a strong or a dacoit aged more than 60 years married a young girl despite her resistance. Except to weep, she had no choice of selecting her mate. To a large extent, such situation does not prevail today. Now, young persons are selecting mates of their choice after verifying full details thereof. Should we not have such a situation in selecting a candidate contesting elections? …..

 

“So, the foundation of a healthy democracy is to have well-informed citizen voters. The reason to have right of information with regard to the antecedents of the candidate is that voter can judge and decide in whose favour he should cast his vote. It is voter’s discretion whether to vote in favour of an illiterate or literate candidate. It is his choice whether to elect a candidate against whom criminal cases for serious or non-serious charges were filed but is acquitted or discharged. He is to consider whether his candidate may or may not have sufficient assets so that he may not be tempted to indulge in unjustified means for accumulating wealth A little man • a citizen • a voter is the master of his vote. …..that a little voter should know bio-data of his/her would be Rulers, Law-makers or Destiny-maker of the Nation?     ----------Supreme Court in 2003

 

 

Introduction: (01:48)

Hello, everyone! My name is Shivani Kapoor and I am a Program Officer at ADR. Welcome to the …..episode of our podcast series. This episode will focus on “Form 26: Affidavits filed by candidates contesting elections, its history and development over the years, relevance in our electoral and political process, present legal remedies in case of false information, mis-information, no-information, Supreme Court judgments, critical analysis and recommended reforms.”

 

 1. Background and Over-view: (02:19)

We the People are the very first words given under the Preamble of Indian Constitution. Therefore, it is undeniably imperative that he/she is well informed about each and very public information in order to make our electoral system more representative, fair, accountable and transparent. The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to a clean, responsive and effective democracy. The purpose of today’s episode is to bring on focus and give utmost emphasis on citizen’s “Right to Know’ about the antecedents of a candidate as part of their constitutional as well as a statutory prerogative.

 

 2. History behind Form 26: (03:20)

• ADR in an initiative towards building an informed, aware citizenry had filed a PIL before the High Court of Delhi in December 1999 seeking implementation of the recommendations of the 170^th report of the Law Commission. In 2000, the Delhi H.C gave a favorable judgment but the judgment was unanimously challenged by the then government and all political parties before the Supreme Court of India.
• The Supreme Court pronounced its judgment on 2 May 2002, substantially upholding the Delhi High Court judgement and directing the Election Commission to collect background information from candidates contesting elections to state assemblies and Parliament in an affidavit i.e Form 26 The background information was: details of past criminal cases – whether convicted, acquitted, or discharged; any pending criminal cases; assets and liabilities (immovable, movable, bank balances, etc.) of the candidate and his/her spouse and dependents; and educational qualifications of the candidate.
• On 28^th June, 2002, the Election Commission of India through a press note issued an order to give effect to the judgments of the Supreme Court and Delhi High Court.
• The entire political class was up in arms as soon as the order mandating furnishing of information in Form 26 was issued by ECI. In an unprecedented show of unanimity, 21 political parties attended an all-party meeting on 8 July 2002, and decided that implementation of the Supreme Court judgment could not be allowed and that the Representation of People Act, 1956 should be amended to nullify the Supreme Court’s judgment. Thereafter, the Representation of the People (Amendment) Ordinance, 2002 (No.4 of 2002) (“Ordinance” for short) was announced by the President of India on 24th August 2002.
• After concluding the hearing of the arguments on 23rd October, 2002 against Ordinance 4 of 2002, the matter was reserved by the Supreme Court for pronouncement of judgment. But before the judgment could be pronounced, the Ordinance was repealed and on 28th December 2002, the Representation of the People (3rd Amendment) Act, 2002 (“Amended Act” for short) was notified to come into force with retrospective effect.
• Directions of the Supreme Court regarding further disclosure of financial assets and liabilities and educational qualifications stood reversed by this amendment. The ordinance also prohibited asking for any information other than what was allowed under the ordinance and that was against the voter’s right to information. Therefore, the validity of Section 33 B was challenged by various civil society organizations including ADR.
• The Supreme Court held Section 33B unconstitutional, null and void.
• As a result of these series of events, a candidate to any National or State Assembly elections is now required under Section 33A of the RPA, read with Rule 4A of Conduct of Election Rules, 1961, to fill an affidavit in Form 26 appended to the Conduct of Election Rules, giving information regarding their assets, liabilities, and criminal proceedings against them, if any.
• Over a period of time, there have been many amendments to Form 26, in order to bring more such crucial information available in the public domain. E.g In 2013, ECI amended Form 26 in order to include a column on ‘market value of the property’. In 2017, sources of income’ column was added, in 2019 “I.T Returns of the last 5 years of the candidates/spouse was added in the affidavits.

 

 

3. Issues around affidavits: (07:49)

 Inspite of filing of the affidavits, there is an unbridled increase in the use of money and muscle power for winning elections. The quest for power and a close nexus between money power and muscle power has got so engrained in our electoral system that the citizens are left hostage to the current situation.  Therefore, it is important to both understand and recognize the sanctity of affidavits filed by candidates. Form 26, after all is not just a mere piece of paper, it is a declaration given by our politicians on oath, which if not taken seriously will destroy the spirit of democracy and good governance. Now, let us understand the issues faced around affidavits.

• Until and unless, there is a system in place that facilitates rigorous verification and cross-checking of the affidavits filed by the candidates during elections or at least a system of scrutiny of affidavits of candidates whose assets have increased manyfold or abnormally, it cannot be really said that a voter’s choice is being truly reflected or if the voters have genuinely formed an informed choice as per the declaration given by candidates under Form 26. Supreme Court in 2017 in a petition filed by Lok Prahari had made it mandatory to cross verify affidavits of candidate and creation of a permanent institutional mechanism to monitor the assets and sources of income of legislators, their spouses and associates, however, since then there is no information or detail about setting up such mechanism by the government.
• It is entirely conceivable that a candidate can also deliberately omit disclosure of a substantial information in his/her affidavit for the sole purpose of winning. Therefore, it is necessary that there is a scrutiny of the statements made by candidates on oath.
• The minimum punishment falling under Section 125 A of the RPA is 6 months or fine, which in turn does not attract disqualification.
• Filing of false affidavits is also not included as a ground for corrupt practices.
• Returning Officer cannot reject nomination papers on the ground that candidate’s information is false. Neither is verification of information by the Returning Officer through a summary inquiry justified.
• Most of the election petitions filed turn infructuous.
• As per the data analysed by ADR, 475 of the current Lok Sabha MPs are crorepatis. It was (443) in Lok Sabha 2014 and (315) in Lok Sabha 2009. Even with respect to the Rajya Sabha, out of the 229 sitting Rajya Sabha MPs analysed by ADR, 203 (89%) are crorepatis.
• 43% of the current Lok Sabha MPs have declared cases against them and 29%have declared serious criminal cases. 24% Rajya Sabha MPs have declared criminal cases out of which 12% have declared serious criminal cases against them. There are 11 MPs who have declared cases relating to murder, 33 have cases related to attempt to murder. There are 8 MPs who have declared cases related to kidnapping and 13 related to robbery. Our MLAs are also not far behind in this race. We have 45 MLAs who have declared cases related to murder whereas 181 have declared cases related to attempt to murder. There are 49 MLAs accused of kidnapping.

 

 

4. Legal remedy towards discrepancies in the affidavits: (11:58)

The mandatory disclosure of the information about the criminal and financial background of the candidates was the major benchmark for a lively democracy. While at one hand we have indeed moved one step further, on the other, we see a lot of discrepancies in the affidavits furnished by our candidates during elections.

 

• Under Section 33A of the RPA, the affidavits have to be filed duly sworn, before a Magistrate of First Class or a Notary public or a Commissioner of Oath Commissioner appointed by the High Court of the State. 
• Section 125A of the RPA, also imposes a penalty for furnishing false information which may extend to 6 months or fine or both.
• Furnishing any false information is already a penal offence under Section 177 of the IPC with punishment which may extend to six months or with fine which may extend to one thousand rupees or with both. Section 181 of the IPC gives another very strong provision for furnishing false statement on oath or affirmation to a public servant and such a person shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
• Verification by the returning officer under Section 36 of RPA is the first and foremost step that can be availed owing to any discrepancies found in the affidavits of the candidates. A RO can reject the nomination in case of blank affidavit or on failure to furnish mandatory information which the candidate is required to fill under Form 26.
• Any disputed question or point of law relating to an election can be called in question in the High Court through an election petition under section 80 and 80A of the RPA within a time period of 45 days.
• A complaint can also be made under section 195 (a)(i) of Cr.P.c by the Returning officer whenever a discrepancy is found in the affidavit. Section 195 gives provisions for prosecution for contempt of lawful authority of public servants- here the public servant referred will be a returning officer. Under Section 190, a private citizen can approach any Magistrate of First class or any Magistrate of second class specially empowered to take cognizance of the offence.
• Under Section 200 and 204 (Chapter XV) read with section 190 of the Cr.P.C:  a complaint can also be filed by a private individual for initiating action against commission of an offence under Section 125A of the RPA.
• More importantly, the Election Commissionin its letter dated 26th April, 2014, had stated that any aggrieved person can approach an appropriate court with a petition for action against false affidavits. It is no longer necessary under the Cr.P.C for the returning officer to move the competent court in relation to any complaint about a false affidavit.
• The Election Commission of India had further through its Press Note dated 16^th June, 2020 decided to take cognizance of the such cases/complaints of false information in pursuit of a level-playing field, it will take cognizance of complaints, which indicate serious omission on the part of the candidate, and refer such matters to the relevant investigating authorities on a case-to-case basis.

 

 

5. How Citizen’s Right to know has brought some constructive developments in our electoral and political process over a period of time: (16:00)

Information is the key; it is the strongest weapon in a democracy.

• On 10^th July, 2013 the Supreme Court declared Section 8(4) of the Representation of People Act unconstitutional, which allowed a Member of the Parliament and State Legislative Assemblies to retain their membership of the House they were elected to, for three months to enable them to file an appeal in the higher court.
• On 13^th September, 2013, Supreme Court made it compulsory for the Returning Officers to ensure that the affidavits filed by the contestants are complete in all respects and to reject the affidavits having blank particulars.
• On 27th Sept. 2013, Supreme Court gave a favourable ruling and ordered inclusion of NOTA buttons on the EVMs. The NOTA button was inserted in the EVM machines first time during the 2014 Lok Sabha elections.
• On 10^th March, 2014, Supreme Court directed all High Courts to conclude trial against sitting MPs and MLAs who have charges framed against them for the offences specified under Section 8(1), 8(2) and 8(3) of the RP Act, within one year from the date of the framing of charge(s).
• On 28^th March, 2014, the Delhi High Court held BJP and the Congress guilty of violating the Foreign Contributions Regulation Act, 1976.
• On 5^th May, 2014, Supreme Court held that the Election Commission has the power to disqualify a candidate in relation to filing of wrong election expenditure statements.
• On 5^th February, 2015, the Supreme Court ruled that non-disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption or moral turpitude and where a candidate has the special knowledge of the pending cases and where cognizance has been taken or charges have been framed and there is a non-disclosure on candidate’s part, it would amount to undue influence.
• On 16^th February, 2017, the Supreme Court directed inclusion of column pertaining to “Sources of income” of the candidate, spouse and dependents in Form 26. Supreme Court also directed to implement a permanent mechanism for scrutiny of affidavits. Candidates now also have to furnish information regarding the contracts, if any with the appropriate government either by the candidate or his/her spouse and dependents. In addition, the court also held that non-disclosure of assets and sources of income would amount to ‘undue influence’ – a corrupt practice under Section 123(2) of the RP Act of 1951.
• On 1^st November, 2017 the Supreme Court had ordered setting up of Special Courts to deal with 1581 cases involving MPs and MLAs as declared at the time of filing of the nomination papers for the 2014 elections. Eleven states have set up 12 special courts. There are two in Delhi and one each in Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu, Uttar Pradesh, Bihar West Bengal, Maharashtra and Madhya Pradesh.
• On 25 September, 2018 the Supreme Court had directed political parties and candidates with criminal antecedents to publish the details of their criminal cases at least on three different dates from the date following the last date of withdrawal of candidatures and upto two days before the date of poll.
• On 13^th February, 2020 the Supreme Court had directed political parties to list out reasons on their website including their social media platforms for nominating candidates with criminal background within 72 hours of the selection of such candidates.

 

 

6. Recommendations: What can be done? (20:36)

 

The seriousness of affidavit cannot be allowed to be ridiculed by the candidates by offering incorrect information or suppressing material information, resulting in disinformation or misinformation to the voters. At present, there is no fear among the candidates while furnishing information under Form 26 as it can at most lead to six months imprisonment and fine, without altering the election verdict or the candidate’s ability to contest future elections. In 2015, the 20^th Law Commission of India in its 244^th Report on ‘Electoral Disqualification’ had taken note of this serious situation and stated that, “the present scenario greatly undermines the very basic value of candidate disclosures – due to the lack of consequences, candidates have little incentive to provide accurate information.” Such issues have certainly contributed to the widespread flouting of the Supreme Court and the Election Commission’s directives on this matter. Therefore, there is an urgent need to:

 

• Introduce enhanced sentence of a minimum of two years under Section 125A.
• Include conviction under Section 125A as a ground of disqualification under Section 8(1) of the RPA.
• Set-up an independent method of verification of winners’ affidavits to check the incidence of false disclosures in a speedy fashion.
• Scrutiny and verification of the disclosures made by candidates in respect of their assets may be made by the CAG with necessarily follow up action in the case of such disclosures being found to be incorrect or false. Such discrepancies should be a ground for subsequent disqualification under the Representation of People Act, 1951.
• Even though trial of election petitions as far as practicable should be on day to day basis until its conclusion, however, most of the times it is seen that such petitions become infructuous. The time period of 45 days is also not sufficient.
• Include the offence of filing false affidavit as a corrupt practice under S. 123 of the RPA.”
• The process for scrutiny of nominations should also be strengthened in order to curb the rampant filing of false affidavits. To this end, a gap of one week should be introduced between the last date of filing of nominations by the returning officer and the date of scrutiny, to allow adequate time for the filing of objections which the returning officer shall consider under Section 36 of RPA.
• There should be a strict criterion for selection of candidates by political parties.
• Affidavit information of candidates to be certified by Political Parties. It is after all the political parties that decide allocation of tickets to candidates based on their worth/capabilities. In case the information furnished by the candidates is found incorrect, the political party and its officer bearers should be held accountable.

 

 

Conclusion: (24:12)

Participation, transparency, legitimacy and responsiveness form the pillars of good governance. Form 26 recognizes that strength, it empowers a voter, to decide for himself/herself, to see who can make policies or how laws are made. Form 26 aids and assist citizens in seeking indispensable crucial information about their candidates, MPs and MLAs. If democracy is all about people’s participation and empowerment, Form 26 was the first step in this direction. It has given power to the citizens to question, audit, review, examine, assess politicians and political parties functioning. And above all, it has inculcated fear among politicians and political parties. It is therefore, imperative that Form 26 is taken seriously, information is furnished diligently by candidates, reasons for section of candidates given out by political parties are reasonable, there is no blatant violation, and if there is, there should be serious consequences. Above all, in order to make our defective elective democracy into a participatory democracy, only TRUE AND CORRECT information should be furnished under oath, for a truly INFORMED choice.

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