Report No. 244

(iii) Current legal consequences on false disclosure

While the PUCL judgment clarified the obligations of a candidate with respect to the furnishing of information, it was less clear on the consequences if the information provided happened to be false. It held that a Returning Officer could not reject nomination papers on the ground that candidate information was false. Neither was verification of assets by the Returning Officer through a summary inquiry justified, as it did not give a fair hearing to the candidate.

As a result of this finding, the Election Commission ordered its earlier directive on the rejection of nomination papers non-enforceable. It instead directed that if a complaint is submitted regarding furnishing of false information, supported by documentary evidence, the Returning Officer should initiate action to prosecute the candidate under Section 125A of the RPA which provides penalty for filing false affidavits.90 A candidate who fails to furnish the required information, gives false information or conceals any information, may be punished with imprisonment for a term up to six months or with fine or with both.

90. Election Commission's letter No. 3/ER/2004-JS-II, dated 02.06.2004.

There is no readily available data on the count of candidates prosecuted for filing false information, though there seem to be no reported conviction on this crime.

However, Section 125A of the RPA has not been included in the list of offences under Section 8 of the RPA. This means that a conviction under Section 125A does not lead to disqualification of the candidate for the duration of imprisonment and a further period of 6 years.

Therefore, filing of false information, even if proved under Section 125A, is not a ground for setting aside the election, or for further disqualification. This matter was in question in the 2007 Bombay High Court decision of Arun Dattaray Sawant v. Kishan Shankar Rathore, El. Pet 10/2004, (Bom. HC) (16th Aug, 2007) (Unreported). See also Kuldeep Pednekar v. Ajit Gogate, 2006 (4) Bom CR 392. in an Election Petition involving false declaration regarding assets in a candidate affidavit.

The Election Judge said that the Returning Officer, in accordance with PUCL, could not reject the nomination paper on the ground that information in the affidavit was false. Nevertheless since the candidate's nomination paper suffered from defects, it amounted to a case of improper acceptance of nomination paper under Section 100(1)(d)(i) and the election was set aside on this ground. Further, it was also clear that the election was materially affected by the false nomination since the improper acceptance was of the returned candidate's papers.

The Judge went on to say that "The solemnity of affidavit cannot be allowed to be ridiculed by the candidates by offering incomplete information or suppressing material information, resulting in disinformation or misinformation to the voters. "Per Khanwilkar J. (as he then was), Para 138, Arun Dattaray Sawant v. Kishan Shankar Rathore, El. Pet 10/2004, (Bom. HC) (16th Aug, 2007) (Unreported). He recommended that Parliament consider enacting a provision stipulating disqualification of a candidate whose election is invalidated by the Court on the finding that he had filed false and incomplete affidavit whose defect was of a substantial character.

This matter was also in question in the Delhi High Court decision of Nand Ram Bagri v. Jai Kishan, (2013) 200 DLT 402. Here, the court said that conviction under Section 125A was a ground for setting aside the election, as the election would then be rendered 'impure'. However, this may be taken as obiter, since the main finding in the case was that the respondent was not guilty of misrepresentation on his affidavit.

A similar approach has been taken by other High Courts as well. In Krishnamoorthy v. Siva Kumar, (2009) 3 CTC 446, the Court, in a case involving Panchayat elections, held that failure to disclose complete information may amount to undue influence, and that incorrect or false information interferes with the free exercise of the electoral right of the voter.

Further, in Resurgence India v. Election Commission of India, WP No. 121 of 2008, (SC) (13th September, 2013) (Unreported), decided by the Supreme Court in 2013, the problems faced by the Election Commission due to the fact that nomination papers could not be rejected for incomplete affidavits, was addressed. The court said that if an affidavit is filed with blank particulars, it renders the entire exercise of filing affidavits futile, and infringes the fundamental right of citizens under Article 19(1)(a). Therefore the Returning Officer should remind the candidate to fill the blanks, and if such reminder is ignored, the nomination is fit to be rejected.

The court rejected the argument that the PUCL judgment barred such a holding, and explained that PUCL merely pointed out that the candidate lacked the ability to make a reply at the time of scrutiny, but did not intend to bar the Returning Officer from rejecting nomination papers. Certain High Courts including the Kerala High Court, however, seem to have taken a contrary view on the question of disqualification for filing of false affidavits.

They have based their stance on the ground that filing of false affidavits has not been stated in the statute as either a ground for disqualification under Section 8, a ground for rejection of nomination papers or a ground for setting aside elections under Section 100 of the RPA. Mani C. Kappan v K.M. Mani, 2007 (1) KLT 228; Narayan Gunaji Sawant v. Deepak Vasant Kesarkar, 2011 (3) Bom CR 754. It was further held by the Kerala High Court that non-compliance of the Election Commission's order cannot be treated as non-compliance with the provisions of the Constitution, to set aside an election under sub-Section 1(d)(iv) of Section 100 of the Act.

Therefore, from the decisions above, one can conclude that if details are omitted in the nomination papers, it is fit to be rejected. If information is believed to be false, prosecution under Section 125A is possible, however the consequences upon conviction are unclear. While the Bombay High Court in Arun Dattaray Sawant maintains that filing of false affidavit is a ground for setting aside the election, other High Courts have taken a contrary view. The filing of false affidavits can therefore at most lead to six months imprisonment and fine, without altering the election verdict or the candidate's ability to contest future elections.

This greatly undermines the very basic value of candidate disclosure.- due to the lack of consequences, candidates have little incentive to provide accurate information. This in turns affects the fundamental right of the citizen under Article 19(1)(a) to know the antecedents of a candidate, as recognized in the Association for Democratic Reforms judgment.