Form 26 and the statutory mandate

Why in the News

The Returning Officer rejected Congress leader Meenakshi Natarajan‘s Rajya Sabha nomination from Madhya Pradesh because her Form 26 affidavit omitted a pending criminal complaint. The Supreme Court has dismissed her challenge. The case raises two questions: whether a form can demand more than its parent law, and whether courts must stay out even when a rejection is arbitrary.

What is Form 26, and where does the disclosure duty come from?

1. What it is: Form 26 is the affidavit every candidate files with the nomination paper, declaring criminal cases, assets, liabilities and education, like a sworn report card for voters.
2. Why it exists: Union of India v. Association for Democratic Reforms (2002) held that disclosure serves the voter’s right to an informed choice. It adds no new qualification for candidates.
3. What followed: In 2002, Parliament wrote the disclosure duty into the Representation of the People Act, 1951 (ROPA) as Section 33-A. The same amendment added Sections 33-B, 75-A and 125-A.
4. Form 26 prescribed: The government then amended the Conduct of Election Rules, 1961, to prescribe Form 26.
5. The takeaway: Form 26 is a tool to carry out a statutory duty, so its reach should match that duty.

What happened in Natarajan’s case?

1. Ground for rejection: The Returning Officer treated the omission as suppression of material information.
2. The complaint: Filed in 2025, it alleged she failed to act against a party leader accused of misconduct.
3. Court’s ruling: Dismissing her petition in June, the Court left her free to file an election petition under Section 100 of ROPA, a case challenging the result after the poll.

Can a form demand more than the statute?

1. What Section 33-A requires: Disclosure only of cases for offences punishable with two years or more, in which a court has already framed charges, meaning formally accused the candidate.
2. What Form 26 now requires: A 2018 amendment to paragraph 5 demands disclosure of all pending criminal cases, whether or not charges are framed.
3. Rule 4A: Rule 4A of the 1961 Rules requires Form 26 with every nomination. It is procedural and only implements Section 33-A, so it cannot create new duties.
4. Limits of delegated legislation: Delegated legislation, rules the executive makes under a law, cannot enlarge that law.

Should the Ponnuswami bar cover arbitrary rejections?

1. The bar: In N.P. Ponnuswami v. Returning Officer (1952), a Constitution Bench read Article 329(b) to bar courts once the election process begins, leaving an election petition as the only remedy.
2. Its purpose: The bar exists to stop courts from interrupting elections, not to shield a patently perverse administrative decision.
3. Remedies at stake: Ambedkar called Article 32, the right to approach the Supreme Court, the Constitution’s “heart and soul”. Yet writs under it and Article 226, the High Court route, stay closed even against arbitrary rejections.
4. Proposed exception: The Court should allow intervention where a Returning Officer acts without jurisdiction or with patent arbitrariness.

Challenges

1. Rule outruns statute: Voters gain wider disclosure, but candidates face rejection on a duty Parliament never enacted.
2. Complaints are easy to file: Counting uncharged complaints lets rivals file cases to trap a nomination.
3. Late remedy: An election petition comes after the poll, so a wrongly excluded candidate loses the contest itself.
4. Returning Officer discretion: One officer decides on “material” suppression at scrutiny, with no quick review.

Way Forward

1. Align the form with the Act: Parliament should either amend Section 33-A to cover all pending cases or the rules should match it.
2. Narrow exception to Ponnuswami: A larger Bench should allow writ review of patently arbitrary nomination rejections.
3. Fast track petitions: High Courts should decide nomination rejection petitions within a fixed time.

Conclusion

Disclosure serves voters, but candidates now face a duty Parliament never set and a rejection no court reviews before polling. What to watch is whether the Supreme Court narrows its pre-poll bar, and whether Parliament aligns the statute with the form.

Steps taken to tackle criminalisation of politics

1. Immediate disqualification: Lily Thomas v. Union of India (2013) held that a sitting member convicted with a sentence of two years or more loses the seat at once.
2. Public records: Parties must publish their candidates’ criminal backgrounds on their websites and in newspapers.
3. Special courts: Dedicated courts try cases against legislators, aiming to finish within a year of charges being framed.
4. None of the Above (NOTA): People’s Union for Civil Liberties (PUCL) v. Union of India (2013) introduced NOTA, a ballot option rejecting all candidates, to push parties toward clean candidates.

Matching Previous Year Question

“[2025, GS2, 10 marks] Discuss the ‘corrupt practices’ for the purpose of the Representation of the People Act, 1951. Analyze whether the increase in the assets of the legislators and/or their associates, disproportionate to their known sources of income, would constitute ‘undue influence’ and consequently a corrupt practice.”