The voter's right to know: Obligation to disclose under amended Form 26

The recent rejection of a nomination for a Rajya Sabha election on the ground that the candidate's affidavit in Form 26 omitted a criminal case pending before a magistrate has ignited a debate as to whether pending private complaints without a first information report (FIR) or cognizance must be disclosed.

The argument is that the proceeding was a private complaint, no FIR was registered and no cognizance had been taken and, consequently, there is no ‘criminal case’ which requires disclosure. Let us test the argument, in the backdrop of two-and-a-half decades of development of law, mostly led by civil society organisations against a united political class.

The issue must be examined through the constitutional evolution of Form 26. In ADR 2002, the Supreme Court traced the voter’s right to know a candidate’s antecedents, assets, liabilities and pending cases to Article 19(1)(a):

"If right to telecast and right to view sport games and the right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a citizen/voter — a little man — to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a)."

In response, Section 33A of the Representation of the People Act, 1951 provided only a narrow disclosure:

"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..."

The disclosure under Section 33A is "apart from any information which he is required to furnish, under this Act or the rules made thereunder” and thus, the Rules can impose further disclosure obligations.

The prescribed form contemplated by sub-section (2) is Form 26 under Rule 4A of the Conduct of Elections Rules, 1961 and is the provision through which the additional disclosure has been imposed. Rule 4A is itself traceable to Section 169(2)(a) of the 1951 Act, which specifically empowers the Central government to prescribe "the form of affidavit under sub-section (2) of Section 33-A." To urge that Form 26, which requires broader disclosure than the statutory minimum, is contrary to Section 33A is absurd. A requirement to disclose all pending criminal cases is entirely consistent with Section 33A and advances the very object for which the provision was enacted.

More importantly, in PUCL 2003, the Supreme Court struck down Section 33B, holding that parliament could not curtail the voter’s right to know under Article 19(1)(a) through a statutory override.

After the ADR 2002 and PUCL judgments, the political class evaded the disclosure requirements by leaving blank columns. In Resurgence 2014, the Court questioned this practice and even empowered the returning officer to reject forms in case of material non-disclosure. Until 2018, Form 26 maintained a two-tier disclosure structure for criminal antecedents of cases where charges are framed or cognizance is taken. This unamended Form was analysed in Krishnamoorthy 2015:

"75. On a perusal of the aforesaid format, it is clear as crystal that the details of certain categories of the offences in respect of which cognizance has been taken or charges have been framed must be given/furnished..."

The observation was anchored to the then existing Form 26 reproduced at paragraph 74.

Finally, in PUCL 2019, a Constitution Bench directed that every candidate fill the prescribed form, state all particulars and declare pending criminal cases in bold. It observed :

"(i) Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

(ii) It shall state, in bold letters, with regard to the criminal cases pending against the candidate…”

The new Paragraph 5 under the Conduct of Elections (Amendment) Rules, 2018 reads:

"(5) Pending criminal cases:

(i) I declare that there is no pending criminal case against me.

(Tick this alternative if there is no criminal case pending against the Candidate and write NOT APPLICABLE against alternative (ii) below)

OR

(ii) The following criminal cases are pending against me:

(If there are pending criminal cases against the candidate, then tick this alternative and score off alternative (i) above, and give details of all pending cases in the Table below)

TABLE

(a) FIR No. with name and address of Police Station Concerned

(b) Case No. with Name of the Court

(c) Sections of concerned Acts/Codes involved (give no. of the Section, e.g. Section…….of IPC, etc.).

(d) Brief description of offence

(e) Whether charges have been framed (mention YES or NO)

(f) If answer against (e) above is YES, then give the date on which charges were framed

(g) Whether any Appeal/Application for revision has been filed against the proceedings (Mention YES or NO)"

Thus, the word "cognizance" is entirely absent from the new Paragraph 5 and Column (e) - "whether charges have been framed (mention YES or NO)" mandates disclosure of a case that has not reached the charge stage. The verification clause requires the candidate to swear that "there is no case of conviction or pending case against me other than those mentioned in items 5 and 6 of Part A and B above". The Court has consistently sought disclosure beyond merely charge framed cases or cognizance taken case.

The amended Form 26 changed the threshold of disclosure from cognizance to all ‘criminal cases’. The word ‘criminal case’ is not defined in any statute. However, rules of interpretation requires that expression ‘criminal case’ in Form 26 must be interpreted widely, to further the voter’s right to know.

The Karnataka High Court in Uday v. Prashanth 2024 held that only criminal cases where charges have been framed or cognizance taken are required to be disclosed and that Rules and forms cannot widen the mandate of Section 33A.

The High Court reproduced the text of the new Form 26 including column (e) that sought disclosure as to whether charges have been framed also demanded details of all pending cases. Yet, the High Court proceeded to decide the case on the basis of paragraph 75 of Krishnamoorthy, rendered in the context of unamended Form 26. The High Court failed to notice that Form 26 had been materially amended.

Further, the proposition that the Rules cannot widen the disclosure beyond what parliament intended proceeds on a misreading of parliamentary intent which is recorded in the opening words of Section 33A. Section 33 requires disclosure "apart from any information which he is required to furnish, under this Act or the rules made thereunder." It is settled that Rules can always further the existing statutory provisions and bridge gaps.

Lastly, to assert that subsequent to the filing of the Form and elections being conducted, the private complaint is dismissed/returned, is wholly irrelevant as Form 26 mandates disclosure as on the date of the filing. The return officer does not sit there with a crystal ball pre-judging the outcome of a case.

The other argument is that since no FIR was registered, no cognizance was taken, nothing is required to be disclosed. This argument conflates the two modes by which criminal proceedings are set in motion. A criminal case may commence by an FIR and police investigation, or by a complaint directly before the magistrate under Section 200 of the Code of Criminal Procedure (CrPC), 1973/Section 223 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

Both are criminal proceedings before equally competent courts. The new Form accommodates both, as column (a) of the table seeks details of the FIR and column (b) seeks details about the case number and the court. A private complaint generates no entry against column (a) but generates entry against column (b). The inclusion of FIR number as the first column demonstrates, moreover, that the Form contemplates disclosure of cases that have not yet reached any court at all. A case actually pending before a magistrate, one in which the candidate has been summoned, has appeared through counsel, has filed a counter-affidavit and has unsuccessfully sought dismissal is a pending case within the realm of Form 26. For a private complaint, the disclosure obligation arises from the point at which the complaint is pending before the court.

The voter's right to know under Article 19(1)(a) is not subject to restriction by the candidate's own assessment that the case against him is unmeritorious or politically motivated. The candidates, the objectors, the political parties or the Election Commission are all subservient to the rights of the public at large. A disclosure harms no one and candidates are better advised to disclosing everything rather than playing ‘hide and seek’ behind technicalities of criminal law.

Rajat Mittal is a practicing Advocate-on-Record, Supreme Court of India and Executive Committee Member of the Supreme Court Advocates-on- Record Association (SCAORA).