The recent disqualification of a candidate from a Rajya Sabha election due to non-disclosure of a pending criminal case in the affidavit Form 26 has sparked significant debate. The controversy centers on whether candidates must disclose ongoing private complaints, even when no First Information Report (FIR) has been filed or cognizance taken. Proponents of non-disclosure argue that without an FIR or cognizance, there is no ‘criminal case’ to report. This article explores this argument against the backdrop of evolving legal standards, largely driven by civil society efforts over the past 25 years.
The Legal Framework
To understand this issue, we must examine the constitutional evolution of Form 26. In the landmark ADR 2002 case, the Supreme Court asserted that a voter’s right to know a candidate’s background is a fundamental right under Article 19(1)(a) of the Constitution. The Court equated this right to other recognized rights such as freedom of speech and expression.
In response, Section 33A of the Representation of the People Act, 1951 was introduced, mandating candidates to disclose if they are accused of an offense punishable with imprisonment for two years or more, where a charge has been framed by a competent court. However, the rules permit additional disclosure requirements, as outlined in Form 26 under Rule 4A of the Conduct of Elections Rules, 1961.
The Supreme Court’s decision in PUCL 2003 invalidated Section 33B, emphasizing that Parliament cannot limit a voter’s right to information through statutory means. The Court’s rulings have consistently supported comprehensive disclosure requirements.
The 2018 Amendment
After the ADR 2002 and PUCL judgments, candidates often circumvented disclosure by leaving affidavit columns blank. The Supreme Court, in Resurgence 2014, empowered returning officers to reject forms with material non-disclosures. By 2018, Form 26 was amended to require a broad disclosure of pending criminal cases, not just those where charges are framed or cognizance taken.
As per the Conduct of Elections (Amendment) Rules, 2018, the new Form 26 necessitates candidates to declare all pending criminal cases. The form defines a case as pending even if it hasn’t reached the charge stage. The form also requires candidates to verify the absence of other pending or convicted cases besides those mentioned in the affidavit.
The Karnataka High Court’s Misinterpretation
In the Uday v. Prashanth 2024 case, the Karnataka High Court ruled that only cases where charges are framed or cognizance taken need disclosure, ignoring the amended Form 26. This decision was based on an outdated understanding from Krishnamoorthy 2015, which reviewed the unamended form. The High Court’s interpretation overlooked that the rules allow for broader disclosure than the statutory minimum.
Furthermore, the argument that absence of an FIR or cognizance negates the need for disclosure conflates different initiatory methods of criminal proceedings. Criminal cases can begin with an FIR and police investigation or via a magistrate under Section 200 of the CrPC/Section 223 of the BNSS, 2023. Form 26 accounts for both, requiring FIR details or case numbers and court details, even for private complaints.
Conclusion
The voter’s right to know, enshrined in Article 19(1)(a), is paramount and cannot be restricted by a candidate’s subjective assessment of a case’s merit. Disclosure of pending cases serves the public interest, ensuring transparency and integrity in the electoral process. Candidates should prioritize transparency over technical legal defenses.
Rajat Mittal is a practicing Advocate-on-Record at the Supreme Court of India and serves on the Executive Committee of the Supreme Court Advocates-on-Record Association (SCAORA).
