This article is written by Shweta Choudhary, a student of Bangalore Institute of Legal Studies.
In June 2014 it was revealed that Narendra Modi was married and had not disclosed that he have a wife while contesting Assembly polls in 2012 and only mentioned of having a wife for the first time in election affidavit. There were demands from the opposition party for his arrest as he had concealed this information and was punishable under section 125(A) (3).
So why should he be punished for concealing a part of information? What happened to him after the information was revealed to the public? Why is it important to disclose all information to contest a valid election? After reading this article, I am sure you would able to know about what information are needed to be disclosed when standing for election and what are the effects of non-disclosure.
ELIGIBILITY FOR CONTESTING ELECTIONS IN INDIA
- A non-citizen cannot be a contesting candidate in the elections because in Article 84(a) of the Constitution of India only citizen of India is allowed to stand in an election. A non-citizen will not be elected to fill the parliament seat.
- Minimum age to become a candidate in Lok Sabha or Assembly Election is twenty years.
- If the person wants to contest an election then he has to register under voters He has to be a voter.
- As per Sec. 8(3) of Representation of People, 1951 if the person has been convicted of any offence and been imprisoned for more than 2 years then he is barred from contesting the elections.
- If a person is candidate of a recognized National or State party, he has to have only one proposer for his nomination.
- If you are an independent candidate or candidate from unrecognized party, then 10 proposers are needed for nomination.
- The Election Commission of India recommended in 1998 that candidates with pending cases are not allowed to contest elections.
DISCLOSURE BY THE CANDIDATES STANDING IN THE ELECTIONS
One point is very important for the politician for standing for an election i.e. transparency. He should disclose all information that is required to be disclosed to the public. The public has to know the candidate for whom they are going to vote for. They need to trust the person so that they know they are not electing someone who is fraud. Only making promises regarding their conditions, health etc. would not help in making them sway towards you. Their trust & belief will lead them to vote.
Non-Disclosure of any vital point if released later will create mistrust in the mind of people who have voted for and the person might lose support of them in future.
In Common Cause case, (1996) 2 SCC 752 the Court dealt with an issue that elections that are held in India was fought with the help of black money and collecting black money would become easier if they win which in turn will help them in re-election. So if in the affidavit the candidate reveals all the personal information about his funds it will be easier for the voters to know about it and decide whom they want to vote for and not elect law breakers. The Supreme Court states that the voters have the fundamental rights to know about the candidates who are standing for election as it is very significant in the democracy in India.
UNION OF INDIA VS. ASSOCIATION FOR DEMOCRATIC REFORMS AND ANOTHER
The screening of candidates resulted in huge opposition among the general public and the concerned parties had to remove the candidates with a criminal record. Due to huge pressure from the general public in Andhra Pradesh the parties prevented themselves from nominating candidates with criminal record.
On May 2, 2002, the Apex court reasonably said that the voters have a fundamental right to know about the criminal and financial records of the politicians.
EC notification on June, 2002 made it mandatory for the politicians to disclose their- 1) Criminal Records which included Convictions, charges that are pending and case that are taken cognizance, 2) Financial Records which includes assets, liabilities and dues from the public financial institution of election candidate, spouse and family member.
The Union Government drafted an Ordinance with provisions which violated Article 19(1)’s decree on fundamental rights. On Aug 16 2002, the same ordinance was recommended to the President of India for approval and also on the same day the citizens and activists requested the President to refer the flawed ordinance to Supreme Court under Article 143 due to its unconstitutional nature.
The point that has to be noted here is that the Government with support of major political parties was not in favor of making the mandatory disclosure of information of the candidates standing for election. i.e. Criminal and financial records. The President returned back the ordinance to the government which was not at all surprising but the cabinet returned it back to the President without making any changes so the President didn’t have any choice but to pass the ordinance. Later on Parliament made the amendment to the Representation of Act and included the intentions of the Government in law.
The National Campaign for Electoral Reforms, Lok SATTA, PUCL and ADR didn’t give up and challenged the constitutionality of the ordinance.. Sri PP Rao and Sri Prashant Bhushan appeared for LOK SATTA before Supreme Court and Justice Rajinder Sachar, Sri Sanjay Parikh and Ms Kamini Jaiswal appeared on behalf of the other petitioners. The Supreme Court strikes down section 33B of the Representative of India and rejected the 13th March’s verdict
In Union of India vs. Association for Democratic Reforms and Another (2002) 5 SCC 294, it was held that “Citizens have a right to know about public functionaries and candidates for office, including their assets and criminal and educational backgrounds, which right is derived from the constitutional right to freedom of speech and expression.” And “(1) When the legislature is silent on a particular subject and an entity (in this case, the Election Commission) has been granted implementation authority with respect to such subject, the Court assumes that the entity has the power to issue directions or orders to fill such a void until a suitable law on the subject is enacted;”
This decision has the following consequences:
The Parliament cannot prevent the candidate from knowing about the candidates.
The court directed that the following information should be revealed by the candidates for the public:-
1) All convictions,
2) Charges framed
3) Cases of which cognizance was taken should be revealed.
The law also made this mandatory for the candidates to disclosure about the following:-
- The candidates will now have to reveal all criminal record as per SC judgment and EC’s notification.
- Candidates have to disclose statement of assets (immovable, movable, bank balances),
- Liabilities, and
- Dues to public financial institutions in respect of themselves, spouses and members of their families.
- Disclosure of educational qualifications was also made mandatory.
- The Election Commission of India has asked the Presidents/Chairmen/general secretaries of all recognized national and state political parties to ask their candidates to also disclose their assets which will include details of their accounts in foreign banks, possession of properties or investment overseas along with loans and liabilities so the voters know the financial conditions and know the source of income outside the country in the affidavit that are outside India, if any.
- Sources of income & their utilization which could be check by the income tax department also including art of “Register of Interest”. The information should include these details
- Name of companies with controlling shareholding interest,
- Directorship in various trusts and companies
- The candidate has to give information about pending cases in which cognizance has been taken by a Court.
- Educational qualifications
- Annual Income of the candidate for his profession and tax purpose.
In terms of Section 33A of the Representation of the People Act, 1951, read with Rule 4A of Conduct of Election Rules, 1961, each candidate has
To file an affidavit in Form 26 appended to the Conduct of Election Rules,
1961, giving information on the following: –
- All the cases for an offence other than the offences mentioned in the TP Act of People 1951 and have been sentenced for one year or more.
- Convictions involving a sentence of one year or more, and
- Pending charges (framed by a magistrate) entailing a sentence of imprisonment of two years or more.
PUNISHMENTS FOR NON-DISCLOSURE BY THE CANDIDATE
“Non-disclosure (non-filing of affidavits) will clearly be a ground for rejection of nomination.”
Section.100. of Representation of People’s Act – Grounds for declaring election to be void.—1) Subject to the provisions of sub-section (2) if 3[the High
Court] is of opinion—
- d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned
candidate 1[by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non—compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
Section 125A of Representative Act –
“[125A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected in an
(i) fails to furnish information relating to sub-section (1) of section 33A; or
(ii) give false information which he knows or has reason to believe to be false; or
(iii) conceals any information, in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under Sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being
in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.].”
Section 8(1)(i) of Representation of the People’s Act 1951-
“Section 8-[(1) A person convicted of an offence punishable under—
Section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) of clause (a) of
Sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act.”
Answering to the question I had raised earlier in the introduction about Narendra Modi who had committed an offence by hiding the fact that he had a wife. The result was that though he was guilty of non-disclosure under Section 125(A)(3) he was not punished and given a clean chit because under Section 48(2)(B) of CrPc states that-“No court shall take cognizance of an offence of the category after the expiry of the period of limitation.” The section says that the offence should be filled with one year which is punishable for one year. So the FIR could not be entertained as it has crossed the time period.
So disclosure of all information by the candidates is mandatory as this is a democratic country and the public is entitled to know about the candidates who stand for election for transparency. General awareness of the candidates is one of essentials for free & fair election. Article 19(1) also states the right of people to have knowledge about the candidates standing in the election .I think we need to thank “Lok Satta” for their continuous efforts to make the candidates reveal their personal information mandatory for the public to know and think about whom to vote.