Last week, the Law Ministry made it mandatory for election candidates to reveal their income-tax returns of the last five years, as well as the details of their offshore assets. This was done by amending Form 26, after the Election Commission of India wrote to the Ministry on February 13.
What is Form 26?
A candidate in an election is required to file an affidavit called Form 26 that furnishes information on her assets, liabilities, educational qualifications, criminal antecedents (convictions and all pending cases) and public dues, if any. The affidavit has to be filed along with the nomination papers and should be sworn before an Oath Commissioner or Magistrate of the First Class or before a Notary Public.
What has changed?
Earlier, a candidate had to only declare the last I-T return (for self, spouse and dependents). Details of foreign assets were not sought. Offshore assets, as per the February 26 notification, means “details of all deposits or investments in foreign banks and any other body or institution abroad and details of all assets and liabilities in foreign countries”. It is now mandatory for candidates to reveal their own income-tax returns of the last five years rather than only one, and the details of offshore assets, as well as the same details for their spouse, members of the Hindu Undivided Family (if the candidate is a karta or coparcener), and dependents.
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Why must candidates file these details?
The objective behind introducing Form 26 was that it would help voters make an informed decision. The affidavit would make them aware of the criminal activities of a candidate, which could help prevent people with questionable backgrounds from being elected to an Assembly or Parliament. With the recent amendment, voters will know the extent to which a serving MP’s income grew during his five years in power.
When and how was it introduced?
Like most recent electoral reforms in India, Form 26 was introduced on September 3, 2002, following a court order. The genesis of the affidavit can be traced to the 170th Report of the Law Commission, submitted in May 1999, which suggested steps for preventing criminals from entering electoral politics. One of the suggestions was to disclose the criminal antecedents as well as the assets of a candidate before accepting her nomination.
The then government did not act on the recommendation, leading to public interest litigation in Delhi High Court in December 1999. On November 2, 2000, the HC directed the EC to secure information on whether a candidate is accused of any offence(s) punishable by imprisonment, her assets as well as those of her spouse and dependents and any other information the EC considers necessary.
The Union government appealed in the Supreme Court, which not only agreed with the Delhi HC, but went a step ahead and directed the EC, in its order dated May 2, 2002, to ask candidates whether they have been convicted/acquitted/discharged of any criminal offence in the past, or accused in any pending cases six months before the filing of nomination, seek details of assets and liabilities of a candidate, her spouse and dependents, and the educational qualifications of the candidate.
On June 28, 2002, the EC issued an order to implement the verdict. However, in less than two months, the Union government promulgated an Ordinance diluting the EC’s order. As per the Representation of the People (Amendment) Ordinance, 2002 (subsequently replaced by an Act on December 28, 2002), a candidate was only expected to disclose whether she was accused of any offence punishable with imprisonment for two years or more in a pending case in which charges had been framed by a court, and whether she had been convicted of an offence and sentenced to a year’s imprisonment or more. The government subsequently also amended the Election Conduct Rules of 1961 on September 3, 2002, to prescribe Form 26 in which a candidate had to disclose the above information.
The SC declared the amendment null and void. The EC then issued a fresh order on March 27, 2003, seeking information on all five points mentioned in the SC order of May 2, 2002.
What happens if a candidate lies in an affidavit?
A candidate is expected to file a complete affidavit. Leaving a few columns blank can render the affidavit “nugatory”. It is the responsibility of the Returning Officer (RO) to check whether Form 26 has been completed; the nomination paper can be rejected if the candidate fails to fill it in full.
If it is alleged that a candidate has suppressed information or lied in her affidavit, the complainant can seek an inquiry through an election petition. If the court finds the affidavit false, the candidate’s election can be declared void.
The current penalty for lying in an affidavit is imprisonment up to six months, or fine, or both. In May 2018, the EC had asked the government to make the filing of a false affidavit a “corrupt practice” under the election law, which would make the candidate liable for disqualification for up to six years. But nothing has been done by the government on this front.
Has anyone been punished for suppressing information in Form 26?
In 2016, Patna High Court annulled the Lok Sabha membership of Chhedi Paswan, the BJP member from Sasaram in Bihar, for not declaring a criminal case pending against him. Paswan had defeated former Lok Sabha Speaker Meira Kumar in 2014. The SC stayed the HC order, but suspended his voting right until a final verdict was delivered. This prevented Paswan from participating in the 2017 presidential electionz