Is transparency lacking in candidate disclosure?
How has the Supreme Court addressed concerns about candidates with serious criminal charges contesting elections? What reforms have been proposed by the Law Commission and EC to address these issues?
The story so far:
The Supreme Court recently held that candidates need not disclose every piece of information and possession in their election affidavit unless it is substantial in nature. In another development, the Election Commission of India (EC) has asked the Central Board of Direct Taxes to verify the declaration with respect to yearly income in the affidavit filed by Rajeev Chandrashekar, the BJP candidate from Thiruvananthapuram.
What does the law specify?
Section 33 of the Representation of the People Act, 1951 (RP Act) read with rule 4A of election rules, requires every contesting candidate to file their nomination paper for elections along with an affidavit in a prescribed format. In Association of Democratic Reforms (ADR) Vs Union of India (2002), the Supreme
Court held that voters have the right to know about the criminal antecedents, income and asset details of the candidate and his/her dependants and educational qualification of contesting candidates. This resulted in Section 33A being added to the RP Act that requires details of criminal antecedents to be part of the election affidavit.
Section 125A of the RP Act further provides that failure to furnish required information; giving false information or concealing any information in the nomination paper or affidavit shall be punishable with imprisonment up to six months or fine or both.
What are the issues?
In a recent case, an independent candidate from Arunachal Pradesh failed to declare three vehicles as assets in his election affidavit while contesting the Assembly election in 2019. His election was set aside by the Gauhati High Court. However, the Supreme Court reversed the decision and held that nondisclosure of information that is not material or substantial cannot be treated as an attempt to unduly influence the voters. In the case of Mr. Chandrashekhar, the complaint is about alleged concealment of his income and substantial assets in his election affidavit that can have a potential impact on the decision of the voters.
An even more significant issue relates to candidates with serious criminal charges contesting elections. Some candidates circumvented the requirement of rule 4A by leaving certain columns blank and filing incomplete affidavits. It once again required an order of the court in Resurgence India Vs EC (2013), to ensure that all columns are filled appropriately. According to a report by ADR, 19% of candidates in the 2019 Lok Sabha election faced charges of rape, murder or kidnapping.
The Law Commission in its 244th report on ‘Electoral Disqualifications’ (2014) and EC in its memorandum on ‘Electoral reforms’ submitted in 2016 had provided certain recommendations. First, a conviction for filing a false affidavit should attract a punishment of a minimum of two years imprisonment and be a ground for disqualification. Second, the trials in such cases must be conducted on a daytoday basis. Finally, persons charged by a competent court with offences punishable by imprisonment of at least five years should be debarred from contesting in the elections provided the case is filed at least 6 months before the election in question.
The Supreme Court in Public Interest Foundation Vs Union of India (2018) directed candidates as well as political parties to issue a declaration about criminal antecedents, at least three times before the election, in a newspaper in the locality and electronic media.
What can be the way forward?
Debarring chargesheeted candidates from contesting elections is likely to be misused by various ruling parties. However, the other recommendations with respect to increasing punishment for filing false affidavits and making it a ground for disqualification need to be implemented. The Supreme Court’s order to provide wide publicity of criminal records should also be strictly implemented. This would enable a discerning voter to exercise a wellinformed choice.