Hyderabad, September 29: Legal experts are of the opinion that
the only way to deter candidates from filing false affidavits during
elections is for intelligence agencies to conduct inquiries into the
antecedents of those who file nomination papers before the announcement
of the list of contestants.
The Election Commission (EC) recently admitted before the Supreme
Court that it found itself helpless with regard to the disqualification
of candidates who made false declarations at the time of filing
nominations. On August 1, 2012, the format of the affidavit appended to
the Conduct of Election Rules of 1961 was amended by the Election
Commission, making it mandatory for candidates to declare their assets
and liabilities, including those of their spouses and dependents,
criminal records, and educational qualifications.
The Representation of the People Act (RPA) stipulates that any false
declaration or concealment of information in the affidavit constitutes
an electoral offence punishable as per the provisions of Section 125(A)
of the Act with imprisonment for up to six months, a fine, or both.
However, advocates say that the EC does not have jurisdiction over
the falsification of poll affidavits. A person wishing to challenge an
affidavit filed by an elected representative must move the court.
Before August 2012, it was under the purview of returning officers to
file first information reports (FIRs) and follow up on them. However,
the EC amended the regulations, freeing public servants from the task,
due to the large number of false affidavits being submitted.
Mr Sarasani Satyam Reddy, a senior lawyer at the Hyderabad High
Court, says that RPA Section 125(A) makes the filing of a false
affidavit punishable with imprisonment or a fine, or both, but it does
not prescribe disqualification of the representative. As per Section 8
of the RPA, an elected representative is only disqualified if he or she
is convicted and sentenced to imprisonment for two or more years.
He says that the filing of a false affidavit also constitutes an
offence under Section 181 of the Indian Penal Code (IPC). As per the
provisions of this Section, the issuance of a false statement by a
public servant under oath is an offence punishable with imprisonment for
a term of up to three years, as well as a fine. This Section also does
not prescribe disqualification.
Mr Satyam Reddy said candidates take advantage of the lax laws and
poor law enforcement by filing false affidavits. He says that the EC has
asked the Centre, on several occasions, to amend the RPA to increase
the term of imprisonment to two years.
Justice P. Lakshman Reddy, a former judge of the AP High Court, says
that a preliminary investigation of the claims in the affidavits, by
either the police or intelligence agencies, may help deter candidates
from malpractices.
He said that the EC should include a provision for the rejection of
the candidature of those found to have submitted false affidavits.
He says that the act of making a statement under oath is supposed to
be sacrosanct, but many candidates are not concerned with the sanctity
of the affidavits. They make false declarations about pending criminal
cases and their assets.
Mr Satyam Reddy said that the Constitution has empowered the EC to
act in an appropriate manner when the laws contain insufficient
provisions to deal with a particular situation regarding the conduct of
an election.
Only 10 days needed to check election papers
Justice P. Lakshma Reddy, a former judge of the AP High Court, said that
it is not impossible for the Election Commission (EC) to carry out
pre-verification of the contents of affidavits filed by candidates if it
sets aside a period of 10 days for the task.
He said that subsequent to the issuance of an election notification,
the official machinery of the election is under the control of the EC.
It can seek assistance from the departments of revenue, registration,
transport and police to verify the correctness of the contents of
affidavits.
The former judge said that the police department, including its
intelligence and special branches, can be used to verify if candidates
have any criminal cases pending against them. The revenue and
registration departments can supply records of properties owned by
candidates, and the transport department can supply records of the
vehicles owned by them.
Justice Reddy said that the amendment of laws to either enhance
punishment for the filing of false affidavits or to provide for the
disqualification of candidates is not an easy task as it will be
difficult for all political parties to arrive at a consensus. He said
that pre-verification of affidavits by the EC is more likely to yield
positive results.
A police officer from the Intelligence department, on condition of
anonymity, said that the police can easily verify criminal antece-dents
of candidates as most records are available with the department. The
police can also make use of its intelligence network.
He said that if the EC introduces a pre-verification process, then
the department will have to identify officers for the verification of
criminal records.
He said that elections are countermanded in case of the death of a
candidate of recognised political parties, but earlier they would even
be countermanded in case of the death of an independent.
What the courts said
- The Election Commission recently told the Supreme Court that it had
written to successive governments at the Centre 43 times to make an
amendment to increase the punishment for candidates found guilty of
filing false affidavits.
- The Madras High Court found that courts were empowered to
disqualify the election of a candidate if an affidavit filed by him or
her before the Returning Officer contained incorrect, incomplete, false
or one-sided information.
- The Madras High Court observed that “The requirement to furnish
full information is not intended to be an empty ritual performed by a
non-believer, but is intended to be sanctimonious. Therefore, a
candidate is not entitled to just satisfy the letter of the law and make
it sacrilegious.”
