On affidavits, false claims & ECI

By Prabhakar Timble
01 July 2015 04:17 IST

The affidavit to be filed by the contesting candidate along with the nomination paper was envisaged to recognize the right to information of citizens. To put the avowed objective in the words of the Supreme Court, “the members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves and it would include their decision of casting votes in favour of a particular candidate”.  There can be no disagreement that democracy flowers if voters are informed; uninformed citizenry makes democracy meaningless and a farce.

The information delusion

The Election Commission of India and the Supreme Court lay claims on such reforms as path-breaking milestones for strengthening democracy. Organisations such as Association of Democratic Reforms and Resurgence India interpret the data of the candidates contesting elections particularly in respect of criminal antecedents, educational qualifications and assets. Media is roped resulting in building excitement by highlighting low educational qualifications with a tinge of contempt. The prejudice against accumulated assets gets reflected when the statistics is doled out as if owning a crore and above is a vice.

The details of contesting candidates as revealed through affidavit provides readymade fodder to media, elite NGOs supposedly guarding Indian democracy and writers like me to stay engaged. Of late, politicians have started digging into this information with binoculars to grab the unwritten word to make a mountain out of a molehill.  It is a delusion that voters speak out and express themselves based on information filed by contesting candidate before the Returning Officer. In fact, voter decisions have absolutely no link with the data oozing out of affidavit.  Further, it is not that the citizen or voter does not know the true “kundali” (horoscope) of the candidate. The factual reality is that voters know almost everything about the contesting candidate even without the official affirmation in the form of an affidavit.  

 

Non-furnishing and furnishing of completely blank or partially incomplete affidavit would render the nomination paper nugatory.  This stands established with the ruling of the Supreme Court (Resurgence India v/s ECI). Any blank in the nomination paper, affidavit included, is viewed as a ‘substantial defect’ and the Returning Officer has the power to reject the nomination. This is because keeping any entry blank violates the right to know of the citizen. If the contesting candidate has nothing to declare under any item, the candidate needs to write Nil or Not applicable.

‘Fake’ is no disqualification

The law is different in respect of alleged ‘fake documents’ and false information. Summary inquiry at the time of scrutiny of nominations cannot be the path to reject nominations on grounds of wrong information or concealing material information. The rejection of nomination paper is restricted only to convictions for an offence punishable with imprisonment of two years or more as the same is covered under disqualifications to be or to be chosen as MP/MLA. 

In short, candidate who has filed affidavit with particulars blank and another who has filed either false information or concealed some data are not kept on par. Whilst there is power to reject nomination for keeping entries incomplete, there is no such authority for alleged wrong information. This is because the candidate may be handicapped to rebut the objections then and there. The candidate should not be trapped by false allegations.  The duty of the Returning Officer is to display the same on the notice board including the allegations, provide copies to other candidates and representatives of print and electronic media.

The Congress party has raised the issue of Manohar Parrikar concealing the information in respect of offences wherein only FIRs have been filed. It is submitted that the ECI rules do not require such information to be revealed in the affidavit. It is only offences wherein charges are filed or pending cases wherein the cognizance is taken by the court and details of convictions, if any that need to be brought on record.  AAP is gearing to corner Sudin Dhavlikar on a fake claim of educational qualification and the opposition parties are rallying to expose Smriti Irani on similar bogus claims. Jitender Singh Tomar is in judicial custody for forged degrees not just for a false declaration. This is a grave offence under the Indian Penal Code and needs to be distinguished from false claims about educational qualifications.

The Supreme Court has laid down that the ECI and Returning Officers cannot exercise the power to reject nomination paper on ground of furnishing wrong information.  It is simply impossible to take such action whilst filing nomination. If the ECI is satisfied, it can file a complaint before the appropriate court under Section 125-A of the Representation of People Act, 1951 and Section 177 of IPC read with Section 200 of Criminal Procedure Code. Section 125-A does not stipulate that complaints have to be made by a public servant or by the Election Officer only. It is open to any aggrieved person to move the petition for any false declaration or concealment of material information.

Section 125-A speaks of the penal action for filing false affidavit. The punishment for false declaration is imprisonment for a term which may extend to six months or with fine or with both. Under this clause, no authority has the power to unseat the MP/MLA. However, if persons providing false and fake information of substantial character are occupying ministerial berths it is for the Chief Minister/Prime Minister to crop the premium posting and communicate zero tolerance.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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