Who is afraid of electoral offences?

As 2014 General Elections dawn on India, the purport of electoral reforms in the country finds primacy in public dialogues amongst the citizenry. One of the critical issues concerns the futurity of electoral offences in India’s jurisprudence. Analyzing the self-sworn affidavits of candidates who have contested Parliamentary and State Assembly elections since 2008, National Election Watch and Association for Democratic Reforms reports that 30 sitting MPs and 127 MLAs have declared cases related to electoral offences and corrupt practices during elections against them.

The Hon’ble Supreme Court has time and again asserted that a voter has the elementary right to be informed of full particulars of a candidate contesting election to the Parliament and State Assemblies and this right is read as an integral part of Article 19(1)(a) of the Constitution. While casting of a vote by a voter is accepted to be a manifestation of the individual’s freedom of expression, the voter’s right to know full particulars of a candidate is provided for by Section 33A of RPA, 1951. The enforcement of Form 26 emanating from Section 33A of RPA, 1951, is still being debated at various levels both in Government and judiciary while the pending electoral offences are piling up in courts. Although Section 33A was inserted in the RPA through Act 72 of 2002 providing for disclosure on specific queries concerning a candidate’s criminal antecedents, the direction of the Supreme Court judgment in Union of India (UOI) v. Association for Democratic Reforms and Anr., (2002) providing for the right of a voter to be informed of disclosures on assets and liabilities, and educational qualifications of candidates haven’t been inserted into Section 33A. Therefore, it is not possible to ensure that violation of the newly introduced requirements under Form 26 would be accounted for the punishment under Section 125A of the RPA, 1951.

The first uncertainty with respect to disclosure of information under Section 33A concerns the powers of the Returning Officer enshrined in Section 36 of RPA, 1951. The Returning Officer under Section 36(6) has the power to accept or reject the nomination while providing a brief statement of reasons in case of the rejection of the nomination paper. However, the powers of the Returning Officer have been severely curtailed by the Supreme Court judgment of 13 March 2003 in Peoples Union of Civil Liberties vs. Union of India, which stressed that the “rejection of nomination paper for furnishing wrong information or concealing of the same cannot be justified at the level of Returning Officer as it would prove arduous on the Returning Officer and then court to consider the truth or otherwise of the details furnished with reference to the documentary prove”. Complying with the judgment, the ECI order of 27 March 2003 clarifies that a nomination shall not be rejected on the ground of incomplete or wrong information furnished in the affidavit and directs Returning Officers to file complaints before a competent magistrate for prosecuting the concerned candidate in case of false statement in an affidavit under Section 177 of the Indian Penal Code and/or Section 125A of the RPA, 1951. This vacuousness of an appropriate authority was remarked by Justice Verma Committee in its report on Amendments to Criminal Law, 2013 that to “deny power to the Election Commission or the Returning Officer to verify the correctness of the information constitutes a major impediment in law”. The Committee opined that it “… makes a mockery of the entire provision contained in Section 33A”.

The Supreme Court judgment of 13 September 2013 in, Resurgence India v. Election Commission of India and Anr., opened a limited window by stating that if a candidate fails to fill the blanks in the affidavit towards furnishing required information along with the nomination paper even after the reminder of the Returning Officer, the nomination paper ought to be rejected. Effectuating this judgment of
13 September 2013 would require modifications in the circular of the ECI dated 27 March 2003 mentioned earlier. The Returning Officer should at least now be vested with the power to reject the nomination paper after due scrutiny in case the requirement under Form 26 has not been fulfilled. It is to be noted that the Returning Officer has not been empowered to reject nomination of a candidate giving false information or concealing any information

The electoral offences as a result of false information or concealed information have been dealt in Section 125A of the RPA, 1951. The Returning Officer in such cases is required to refer the matter to the concerned court for determination of offence. The long pendency of such electoral offences enables the candidate to contest election without any fear of consequences. The voter is perplexed as his/her expression manifested is effectively not determined by the information being given.

Currently, the term of punishment under section 125A of RPA, 1951 amounts to an imprisonment for a term which may extend to six months, or with fine, or with both. The period of punishment under Section 125A should at least be enhanced to a term of two years under Section 8 of the RPA, 1951. Once the sentence is raised to two years, any conviction would attract disqualification under Section 8(3) of the RPA, 1951. The period of disqualification could at least be three years as provided in section 10A of RPA, 1951 which deals with the failure to lodge account of election expenses.

There is an exigent need to restore the powers of the Returning Officer in accordance with the judgment of the Supreme Court and all complaints under section 125A of RPA, 1951, should be decided within six months from the date of the cognizance of the complaint in sync with the provisions relating to election petition in Section 86 of RPA, 1951, ascertains that “every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial”. Perhaps, there is a need to establish election tribunals for election petition and electoral offences. The electoral offences would repeat themselves unless the vigilant intervention by the courts in upholding the Constitution.

By (N. Misra is ex-Chairman, TRAI and Director, Public Interest Foundation and A. Karthika is Research Associate with the Foundation). E-mail: director@publicinterestfoundation.com

(This article was published in Amar Ujjala on 2nd April, 2014 )