The Supreme Court on June 12 declined to come to the rescue of Congress leader Meenakshi Natarajan, who was prevented from contesting the Rajya Sabha elections due to non-disclosure of a private criminal complaint that was pending against her before a Hyderabad court.

Following the rejection of Natarajan’s nomination papers by the returning officer, three Bharatiya Janata Party (BJP) candidates were elected unopposed to vacant Rajya Sabha seats in Madhya Pradesh.

Natarajan can challenge the BJP candidates' win, but she would have to undergo the rigmarole of a trial in an election petition to prove her case.

Bar & Bench explains the law governing the disclosure of criminal antecedents by election candidates in the context of Natarajan’s case.

In order to purify the Indian electoral system, the Supreme Court has recognised the right of a citizen to know the criminal antecedents, assets and liabilities, and educational qualifications of a candidate as a fundamental right.

In 2002, the top court in Union of India v. Association for Democratic Reforms directed the Election Commission of India (ECI) to ask candidates contesting for parliament and state assembly elections to file affidavits disclosing whether they have been convicted, acquitted or discharged in any criminal case. 

As per the ruling, candidates were also required to disclose any pending criminal case involving an offence punishable with imprisonment of two years or more, where either charges had been framed or the court had taken cognizance of the offence.

This led to the issuance of Form-26 by the ECI under the Conduct of Election Rules, 1961. In Form-26, besides other information, candidates are required to disclose all pending criminal cases against them and details about cases of any past conviction.

Soon thereafter, Section 33A of the Representation of Peoples (RP) Act was enacted to give citizens the right to know about the candidates’ criminal record. 

In 2003, the Supreme Court ruled that the right provided for by parliament under Section 33A in regard to the disclosure of a candidate's pending criminal cases and past involvement in such cases was reasonably adequate to safeguard the voter's right to information. 

Significantly, also ruled that there was no good reason for excluding pending cases - in which cognizance had been taken by courts - from the ambit of disclosure. Such an exception had earlier been created by Section 33A.

However, the Court also said that nomination papers cannot be rejected on the ground of furnishing wrong information or suppressing material information.

This changed in 2018, when the Supreme Court ruled that nomination papers can be rejected if the affidavit is filed with blank columns. The Court said that the candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank.

“If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced,” the Court ruled.

Non-disclosure or furnishing of false information relating to the criminal record is a punishable offence under Section 125A of the RP Act, which provides for a maximum imprisonment of 6 months. Such conduct can also lead to declaring the winning candidate’s election null and void.

The Supreme Court in 2015 ruled that the disclosure of criminal antecedents of a candidate, especially pertaining to heinous or serious offence or offences relating to corruption or moral turpitude, at the time of filing of nomination paper as mandated by law is a "categorical imperative." Any concealment or suppression of such information amounts to interference or attempt by the candidate to interfere with the free exercise of the right to vote by the electorate, the Court said.

“As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1)(b) of the 1951 Act,” the Court ruled in Krishnamoorthy v. Sivakumar.

On May 9, the returning officer for Rajya Sabha elections in Madhya Pradesh rejected Natarajan’s nomination paper over the non-disclosure of a pending case against her. The returning officer noted that a Hyderabad court has taken cognizance of a criminal complaint filed against her and issued summons to her.

According to media reports, the criminal complaint was filed by a woman who has accused former Narayanpet Congress leader Kumbham Shiva Kumar Reddy of sexual assault and criminal intimidation. In the separate private complaint, she alleged that Congress leaders including Natarajan failed to act on her complaints relating to the sexual abuse.

Interestingly, this private complaint, which led to the rejection of Natarajan’s nomination papers, was returned by an Additional Chief Judicial Magistrate on June 13 for want of jurisdiction. Since most of the proposed accused are present or former lawmakers, the complaint can only be heard by a judge designated for hearing matters involving MLAs or MPs.

After the ECI refused to accept her explanation, Natarajan made a last ditch effort before the Supreme Court. In a writ petition filed under Article 32 of the Constitution, she argued that there was no violation of Section 33A of the RP Act by her, as cognizance was yet to be taken in the private complaint. 

However, her writ petition was questioned on the ground of maintainability. It was argued by the ECI that when the nomination paper of a candidate is rejected on any ground, the only remedy for the candidate is to file an election petition.

Article 329(b) of the Constitution of India states that no election to parliament or a state legislature can be challenged except by way of an election petition.

A Bench of Justice Prashant Kumar Mishra and Justice Atul S Chandurkar ruled that the Court in a writ petition cannot intervene even when where the illegality in rejection of nomination is glaring and manifest

“We are afraid, any such interpretation, that in some cases this Court can entertain a petition wherein a candidate’s nomination paper has been improperly rejected, while leaving some others to avail the remedy of filing an election petition before the election tribunal, should not be encouraged, being in direct conflict with the law laid down in Ponnuswami (supra),” the Court ruled, while dismissing Natarajan’s plea.

This leaves Natarajan with only one recourse.

She can file an election petition before the Madhya Pradesh High Court to challenge the unopposed win of BJP candidates Tarun Chugh, Rajnish Agarwal and Mahesh Kewat .

However, election petitions usually take years to decide, given the examination of voluminous evidence.

In any case, the central question raised in her plea will be: whether she was required to disclose the pendency of the criminal complaint, or whether her "not applicable" response to the criminal record question was sufficient for her nomination to be accepted.