Relevance : GS Paper II
Theme of the Article
Non-disclosure of information and filing of falsities in election affidavits can’t be treated equally.
Why has this issue cropped up?
On April 15, 2019, a Public Interest Litigation (PIL) was filed in the Supreme Court against Prime Minister Narendra Modi for filing a false affidavit. Recently, Union minister Smriti Irani was accused of falsifying her educational records in her affidavit.
The Concern
- Despite the upsurge in the number of complaints of false affidavits, we are yet to see any strict action taken in this regard.
- Hence, it is important to look into the law governing false affidavits under the under the Representation of People’s Act, 1951 (“RPA”) and examine its effectiveness in curbing this malpractice.
The RPA
- Section 33 of the RPA mandates all candidates contesting national/state assembly elections to furnish an affidavit comprising basic information such as their assets, liabilities, educational qualifications and criminal antecedents (if any).
- Failure to furnish information or filing false information in the affidavit is a penal offence under Section 125A of the RPA which prescribes a penalty of maximum six months or fine or both.
- However, unlike conviction for offences like bribery, conviction under Section 125A does not result in disqualification of candidate.
- Another relevant provision is Section 8A which disqualifies any candidate found guilty of corrupt practice from contesting the election.
- Section 123 of the RPA defines “Corrupt Practices” to include “bribery”, “undue influence”, appealing to vote or not on grounds of caste, religion etc.
- What is baffling is that non-disclosure of information has been interpreted as a corrupt practice amounting to disqualification under section 8A, but, the courts’ silent stance in the treatment of filing false information has led to the understanding that filing false information does not amount to corrupt practice. This means that candidates who do not disclose certain information can be disqualified, but those who file false information can only be punished for maximum six months.
Cases before the Supreme Court
- In Krishnamoorthy v. Sivakumar & Ors (2015), the court ruled that the voter’s right to know the candidate who represents him in Parliament is an integral part of his freedom of speech and expression, guaranteed under the Constitution. Suppressing information about any criminal antecedents creates an impediment to the free exercise of the right to freedom of speech and expression. Therefore, non-disclosure amounts to an undue influence and corrupt practice under Section 123(2) of RPA.
- A similar question came up before the SC in Lok Prahari v. Union of India & Ors (2018), wherein the court followed the Krishnamoorthy judgment. It held that non-disclosure of information relating to source of income and assets by candidates and their associates, is a corrupt practice.
- Thus, furnishing false information which misguides and violates the voters’ right to know their representative is a corrupt practice under the RPA.
Failure of the Supreme Court
- A petition was filed in the SC in 2018, seeking directions from the court to declare the filing of false affidavits a corrupt practice, and to direct the legislature towards implementing the recommendations of the 244th Law Commission Report.
- While the SC agreed in principle that filing a false affidavit for elections is a corrupt practice, it expressed its inability to direct a relevant legislation.
- It failed to realise that the mere absence of a separate clause declaring the filing of false information as a corrupt practice, does not stop the court from interpreting “undue influence” to include filing of false information.
- The court should have relied on its earlier judgments in Lok Prahari and Krishnamoorthy to rule that similar to non-disclosure of information, false affidavits will also constitute “undue influence” as they also try to misguide people.
- Thus, the SC missed a golden opportunity to prevent the abuse of process and cure a gross error — of treating non-disclosure and filing false information differently.
Way forward
- The lack of legal clarity relating to false affidavits has led to multiple candidates, including prominent leaders, getting away by filing false information in their election affidavits. It is high time the SC clarifies that filing false affidavits (similar to non-disclosure of certain information) constitutes “undue influence”, which is a “corrupt practice”
- Further, to add clarity and discourage false affidavits, the legislature must incorporate threefold changes suggested by the Law Commission in the RPA.
- First, increase the punishment under Section 125-A to a minimum of two years;
- second, conviction under this provision should be a ground for disqualification of candidates under Section 8(1) of the RPA; and,
- third, falsification of affidavits by candidates must also be separately included in section 123 of the RPA as a corrupt practice.
Conclusion
Changes are needed to ensure that the voter’s right to information remains paramount, and the candidate’s constitutional right to contest is subservient to it.
