The story so far: Two recent developments have brought under focus the disclosure norms that candidates are expected to comply with in election law. One relates to reports that the BJP candidate in the Thiruvananthapuram Lok Sabha constituency, Rajeev Chandrasekhar, had allegedly failed to report all the assets he owns in the mandatory affidavit accompanying his nomination papers. Another report was about the Supreme Court noting that not every little detail needs to be disclosed, as candidates also have their right to privacy.
What is the law related to disclosure?
The requirement that prospective candidates will have to disclose their criminal antecedents, if any, their educational qualifications and their assets and liabilities, including those of their spouses and dependants, arose from a landmark Supreme Court judgment on May 2, 2002. The court ruled that the voters’ right to information in a democracy is part of the citizens’ right to express their opinion through their vote.
In June 2002, the ECI issued the rules to give effect to the judgment. However, the Central government of the day sought to curtail the scope of these disclosures by an ordinance amending the Representation of the People Act, 1951, in August 2002. Later, it was replaced by an Act. The amendments introduced Sections 33A (concerning disclosure of pending criminal cases), Section 33B (which effectively nullified the ECI’s notification by saying no disclosure other than those prescribed in the Act is required) and Section 125A (penalty for failure to disclose or false disclosure). The Ordinance and, thereafter, the amending Act were challenged in court. The Supreme Court on March 13, 2003, struck down Section 33B and restored the disclosure requirements regarding assets and liabilities and educational qualifications. The ECI issued revised instructions and the format for disclosure based on the judgment.
What are the consequences of any omission?
Section 125A of the RPA, 1951, prescribes a six-month prison term, or a fine, or both, for any candidate’s failure to disclose the required information, or giving false information or concealing such information.
Besides this provision for prosecution, any omission or false information could be a ground to challenge a candidate’s election in the High Court. Among the grounds available to a court to invalidate an election, two are relevant here. Under Section 100, an election can be declared void if there is “improper acceptance of any nomination” or “any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.” It is possible for an unsuccessful candidate to question the acceptance of the nomination of the ultimate winner on the ground of concealment or furnishing of false information, as well as raise the possible violation of any of the statutory disclosure requirements.
What is the latest court ruling?
This case concerned the election of Karikho Kri, an independent candidate who won a seat in the Arunachal Pradesh Assembly in 2019. His election was challenged by the Congress candidate Nuney Tayang on the ground that Mr. Kri had not disclosed some moveable assets in the names of his wife and children. The Itanagar Bench of the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh accepted the allegations and declared Mr. Kri’s election void. It found that his nomination had been improperly accepted as he had failed to disclose three vehicles (sold some years before, but not yet registered in the name of the buyers) and had not submitted a ‘No Dues’ certificate for government accommodation he had enjoyed during an earlier stint as MLA (2009-14).
The Supreme Court set aside the High Court’s judgment on the ground that the non-disclosure was not of a substantial nature warranting rejection of his nomination; nor did it amount to non-compliance with the law as it did not materially affect the outcome of the election. The three vehicles were found to have been sold off or gifted away long before the election. There were no dues on the day of the nomination being submitted and that a ‘No Dues’ certificate had been furnished by Mr. Kri in 2014, when he had contested the election. He held no government accommodation after that. On the day of the nomination in 2019, he had once again given the old certificate to satisfy the Returning Officer.
What is the takeaway from the verdict?
Rejecting the contention that the voter’s right to know all particulars is absolute, the Supreme Court said there was no need for a candidate to lay bare his entire life to the electorate. It is not necessary to declare every item of moveable property, unless it is of such value as to be sizeable in itself, or will reflect upon his lifestyle and thus be of interest to the voter. However, the court cautioned that there cannot be a straitjacket rule on this, and what omission is of a substantial character or will affect the outcome will depend on the facts of each case.
