Report No. 244
(i) The reform proposal: an assessment
The lack of any serious consequences for making false disclosures has certainly contributed to the widespread flouting of the Supreme Court and the Election Commission's directives on this matter. Such misrepresentation affects the voters' ability to freely exercise their vote. Therefore, there is an urgent need to:
i. Introduce enhanced sentence of a minimum of two years under Section 125A.
ii. Include conviction under Section 125A as a ground of disqualification under Section 8(1) of the RPA.
iii. Set-up an independent method of verification of winners' affidavits to check the incidence of false disclosures in a speedy fashion.
iv. Include the offence of filing false affidavit as a corrupt practice under Section 123 of the RPA.
This set of suggestions is by the way of abundant caution. Increasing minimum punishment to two years would result in Section 125A being included in the ambit of Section 8(3), under which conviction for offences punishable by at least two years results in disqualification. To further eliminate any possible loopholes, such as if a judge happens to prescribe a lower sentence, the Election Commission suggests that Section 125A also be brought under the offences listed in Section 8(1), which results in disqualification irrespective of the quantum of punishment.
Corrupt practices under Section 123, when committed by a candidate or his election agent, are grounds for setting aside an election under Section 100(1)(b). Inclusion of the offence of filing false affidavit under Section 123 results in the option of filing an election petition becoming available to an elector or candidate who want to challenge a particular election.
This reform suggestion by the Election Commission has ample basis in the current law. Section 8(1) already carries the penalty of disqualification for a number of other electoral offence.- Section 8(1)(i) disqualifies upon conviction for promoting enmity between classes, removal of ballot papers, booth capturing and fraudulently defacing or destroying any nomination paper.
Even though the quantum of punishment in some of these offences is low, ranging from six months to a year, they result in disqualification because the offence is directly connected to the conduct of elections. False disclosures in nomination papers falls within the scheme of such offences, and should therefore be included under Section 8(1)(i).