Supreme Court Clarifies Disclosure Requirements for Candidates: Satish Ukey vs. Devendra Fadnavis (2019)

Date of the Judgment: October 1, 2019

Citation: [2019] INSC 1008

Judges: Ranjan Gogoi, CJI, Deepak Gupta, J., Aniruddha Bose, J.

Can a candidate for public office be prosecuted for not disclosing pending criminal cases in their election affidavit, even if charges haven’t been formally framed? The Supreme Court of India addressed this critical question in a case involving a complaint against the current Chief Minister of Maharashtra. The court clarified that candidates must disclose all cases where a court has taken cognizance, not just those where charges have been framed. This decision underscores the importance of transparency in the electoral process. The judgment was authored by Chief Justice Ranjan Gogoi, with Justices Deepak Gupta and Aniruddha Bose concurring.

Case Background

The appellant, Satish Ukey, a practicing advocate of the Bombay High Court, filed a criminal complaint against the first respondent, Devendra Gangadharrao Fadnavis, who was then a Member of the Maharashtra State Legislative Assembly and is currently the Chief Minister of the State of Maharashtra. The complaint alleged that Fadnavis had failed to disclose details of two criminal cases in his election affidavit (Form 26), which is a violation of Section 125-A of the Representation of the People Act, 1951. The two cases were: (i) Summary Case No.231 of 1996 under Section 500 of the Indian Penal Code (IPC), and (ii) Regular Criminal Case No.343 of 2003 under Sections 468, 471, 218, 467, 420 and 34 of the IPC. Ukey contended that Fadnavis had knowledge of these cases but did not mention them in his affidavit.

The appellant had also challenged the election of the first respondent before the High Court by instituting Election Petition No.1 of 2014, which was dismissed by the High Court on 19th August, 2015.

Timeline:

Course of Proceedings

The Judicial Magistrate First Class, Nagpur, initially dismissed the criminal complaint filed by the appellant on 7th September, 2015. However, the Sessions Judge, Nagpur, in revision, remanded the matter back to the trial court for a fresh consideration. The first respondent then appealed to the High Court, which set aside the Sessions Judge’s order on 3rd May, 2018, leading to the present appeals before the Supreme Court.

Legal Framework

The case hinges on the interpretation of several key legal provisions:

• Section 33-A of the Representation of the People Act, 1951: This section mandates that a candidate must disclose if they are accused of any offense punishable with imprisonment for two years or more in a pending case where charges have been framed. It also requires disclosure of convictions with imprisonment of one year or more. Specifically, the law states:

  “33A. Right to information .—(1) A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub -section (1) of section 33, also furnish the information as to whether – (i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction; (ii) he has been convicted of an offence other than any offence referred to in sub -section (1) or sub-section(2), or covered in sub-section (3), of section 8 and sentenced to imprisonment for one year or more.”

• Section 125-A of the Representation of the People Act, 1951: This section prescribes penalties for filing a false affidavit. It states that a candidate who fails to furnish the information required under Section 33-A, gives false information, or conceals any information in their nomination paper or affidavit, is liable to be punished with imprisonment up to six months, or with fine, or both. The law states:

  “Section 125 -A. Penalty for filing false affidavit, etc.- A candidate who himself or through his proposer, with intent to be elected in an election, — (i) fails to furnish information relating to sub-section (1) of section 33 -A; or (ii) gives false information which he knows or has reason to believe to be false; or (iii) conceals any information, in his nomination paper delivered under sub -section (1) of section 33 or in his affidavit which is required to be delivered under sub -section (2) of section 33 -A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both”

• Rule 4-A of the Conduct of Election Rules, 1961: This rule mandates that a candidate must submit an affidavit in Form 26 along with their nomination paper. The rule states:

  “4-A. Form of affidavit to be filed at the time of delivering nomination paper .— The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub -section (1) of Section 33 of the Act, also deliver to him an affidavit sworn by the candidate before a Magistrate of the first class or a Notary in Form 26.”

• Form 26: This is the prescribed form of affidavit to be filed by a candidate along with his nomination papers. It requires the disclosure of various details, including criminal antecedents, assets, liabilities, and educational qualifications.

The Supreme Court noted that the insertion of Sections 33-A and 125-A into the Representation of the People Act, 1951, was a direct result of judicial pronouncements emphasizing the voter’s right to know the antecedents of contesting candidates. This right is considered an essential facet of freedom of speech and expression under Article 19(1)(a) of the Constitution.

Arguments

The appellant argued that the first respondent failed to disclose the two criminal cases in his affidavit, violating Section 125-A of the Representation of the People Act, 1951. The appellant contended that the term ‘information’ in Section 33-A should not be limited to the specific details mentioned in clauses (i) and (ii) of Section 33-A(1) but should also include any other information required under the Act or the Rules, specifically Form 26. The appellant also pointed out that Form 26, as amended in 2012, explicitly requires the disclosure of cases where cognizance has been taken by a court, in addition to cases where charges have been framed. The appellant relied on the letters issued by the Election Commission of India, which clarified that candidates must disclose all pending cases where cognizance has been taken, irrespective of the quantum of punishment or framing of charges.

The respondent, on the other hand, contended that Section 33-A only requires disclosure of cases where charges have been framed and not where cognizance has been taken. The respondent argued that the specific language of Section 33-A(1) limits the disclosure requirement to cases where charges have been framed and convictions have been recorded. The respondent’s position was that since the two cases in question were at the stage of cognizance and not at the stage of framing of charges, there was no requirement to disclose the same. The respondent also argued that the Election Commission’s letters could not override the express provisions of the statute.

The Supreme Court noted that the core issue was whether the word ‘information’ in Section 33-A of the Representation of the People Act, 1951, means only the information mentioned in clauses (i) and (ii) of Section 33-A(1) or whether it also includes other information required under the Act or Rules, particularly Form 26.

The innovativeness of the argument of the appellant lies in the fact that the appellant argued that the term “information” in Section 33-A should not be narrowly interpreted to only include cases where charges have been framed, but also cases where cognizance has been taken, relying on the broader intent of the law to ensure transparency and the voter’s right to know. The respondent’s argument was a literal interpretation of the law.

Submissions

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. Whether the word ‘information’ as mentioned in Section 33-A of the Representation of the People Act, 1951, means only such information as mentioned in clause (i) and (ii) of Section 33-A(1) or whether along with the said information a candidate is also required to furnish such other information as required under the Act or the Rules made thereunder.
2. Whether in the affidavit required to be filed under sub-section (2) of Section 33-A, information is to be given as required in terms of the affidavit which is prescribed by Form 26 of the Conduct of Election Rules, 1961, or such information is confined to what is required to be submitted under Section 33-A(1)(i) and (ii).

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

• Union of India (UOI) and Ors. v. Association for Democratic Reforms and Ors. [(2002) 5 SCC 294]: The Supreme Court in this case had emphasized the voter’s right to know the antecedents of contesting candidates. The Court had directed the Election Commission to collect information on criminal records, assets, and educational qualifications of candidates. The Court noted that this case led to the insertion of Section 33-A into the Representation of the People Act, 1951.
• People’s Union for civil Liberties (PUCL) and Ors. v. Union of India (UOI) and Ors. [(2003) 4 SCC 399]: In this case, the Supreme Court examined the import of Sections 33-A and 33-B of the Representation of the People Act, 1951, vis-à-vis the directions issued in Association for Democratic Reforms. The court held that while Section 33-A mandated disclosure of cases where charges were framed, it failed to include cases where cognizance was taken. The Court directed the Election Commission to revise instructions to include cases where cognizance has been taken.
• Krishnamoorthy v. Sivakumar and others [(2015) 3 SCC 467]: The Supreme Court referred to paragraph 75 of this case, which clarified that Form 26 requires the disclosure of cases where cognizance has been taken, in addition to cases where charges have been framed.

Legal Provisions:

• Section 33-A of the Representation of the People Act, 1951: This section mandates the disclosure of certain information by candidates, including criminal antecedents.
• Section 125-A of the Representation of the People Act, 1951: This section prescribes penalties for filing false affidavits.
• Rule 4-A of the Conduct of Election Rules, 1961: This rule mandates the filing of an affidavit in Form 26.
• Form 26 of the Conduct of Election Rules, 1961: The prescribed form of affidavit for candidates, which was amended in 2012 to include the disclosure of cases where cognizance has been taken.

Authorities Considered by the Court

Judgment

The Supreme Court held that the information to be furnished under Section 33-A of the Representation of the People Act, 1951, includes not only the information mentioned in clauses (i) and (ii) of Section 33-A(1) but also information that the candidate is required to furnish under the Act or the Rules made thereunder. This includes information concerning cases in which a competent court has taken cognizance, as required by Form 26. The Court emphasized that Form 26, as amended in 2012, mandates the disclosure of cases where cognizance has been taken, in addition to cases where charges have been framed.

The Court also noted that the letters issued by the Election Commission of India further clarify that candidates must disclose all pending cases where cognizance has been taken, irrespective of the quantum of punishment or framing of charges. The Court concluded that the High Court’s decision was not legally tenable and set it aside.

The Court directed the trial court to consider the appellant’s complaint afresh from the stage where it was interdicted by the previous order.

Treatment of Submissions

How each authority was viewed by the Court

The following table shows how each authority was viewed by the Court:

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the need to uphold the voter’s right to information and ensure transparency in the electoral process. The Court emphasized that the voter has the right to know the criminal antecedents of candidates, including cases where cognizance has been taken by a court. The Court also highlighted the importance of the amended Form 26, which explicitly requires the disclosure of such cases.

The Court’s reasoning was heavily influenced by the judicial precedents, particularly the cases of Union of India (UOI) and Ors. v. Association for Democratic Reforms and Ors. and People’s Union for civil Liberties (PUCL) and Ors. v. Union of India (UOI) and Ors. which established the voter’s right to information as a fundamental aspect of free and fair elections. The Court also relied on the legislative intent behind the amendments to the Representation of the People Act, 1951, which aimed to enhance transparency and accountability in the electoral process.

The Court’s interpretation of Section 33-A was not a literal one but a purposive one, taking into consideration the overall objective of the law. The court also took into account the letters issued by the Election Commission of India, which clarified the disclosure requirements.

The Court’s decision was also influenced by the fact that the amended Form 26, which was in force at the time of the election in question, specifically required the disclosure of cases where cognizance had been taken by the Court.

Fact:Law Ratio

Logical Reasoning

Quotes from the Judgment

The Supreme Court made the following key observations in its judgment:

• “The above can leave no element of doubt that, subsequent to the substitution of Form 26 in 2012, the new Form 26 (as in vogue at the time of the elections in 2014), mandates the disclosure of information by the contesting candidate of not only case(s) in which charges have been framed but also case(s) in which cognizance has been taken by the Court.”
• “A cumulative reading of Section 33 -A of the 1951 Act and Rule 4 -A of the 1961 Rules and Form -26 along with the letters dated 24.8.2012, 26.9.2012 and 26.4.2014, in our considered view, make it amply clear that the information to be furnished under Section 33-A of the 1951 Act includes not only information mentioned in clauses (iand (ii) of Section 33-A(1) but also information that the candidate is required to furnish under the Act or the Rules made thereunder, including information concerning case(s) in which a competent Court has taken cognizance.”
• “The word ‘information’ in Section 33-A of the 1951 Act cannot be given a constricted meaning so as to confine it to the information specifically mentioned in clauses (i) and (ii) of Section 33-A(1). The word ‘information’ should be given a wider meaning so as to include any other information that a candidate is required to furnish under the Act or the Rules made thereunder. In other words, the word ‘information’ would include information which a candidate is required to furnish in terms of Form 26.”

Final Decision and Implications

The Supreme Court allowed the appeals and set aside the High Court’s order. The Court directed the trial court to consider the appellant’s complaint afresh from the stage where it was interdicted by the previous order. This decision has significant implications for the electoral process, as it clarifies that candidates must disclose all pending criminal cases where a court has taken cognizance, regardless of whether charges have been framed. This ruling reinforces the importance of transparency and accountability in elections and ensures that voters have access to all relevant information about candidates before casting their votes. The decision also highlights the importance of Form 26 and the need for candidates to fully comply with its requirements.

Key Takeaways

• Candidates must disclose all pending criminal cases where a court has taken cognizance, not just cases where charges have been framed.
• The term “information” in Section 33-A of the Representation of the People Act, 1951, is not limited to the specific details in clauses (i) and (ii) of Section 33-A(1) but also includes any other information required under the Act or the Rules, specifically Form 26.
• Form 26, as amended in 2012, mandates the disclosure of cases where cognizance has been taken.
• Non-disclosure of cases where cognizance has been taken is a violation of Section 125-A of the Representation of the People Act, 1951.
• The voter’s right to information is paramount in a free and fair election.

Final Note

This case is a landmark judgment that reinforces the importance of transparency and accountability in the electoral process. By clarifying the extent of information that candidates must disclose, the Supreme Court has ensured that voters are better informed and can make more informed decisions when casting their votes. The decision also serves as a reminder to candidates that they must fully comply with the requirements of the law and provide accurate and complete information in their election affidavits.