Explained: How a change in law has made election candidates more accountable

Note4Students

Mains Paper 2: Polity | Salient features of the Representation of People’s Act.

From UPSC perspective, the following things are important:

Prelims level: Form 26

Mains level: Preventing money laundering by Politicians


News

  • Recently 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, as suggested by the Election Commission of India.

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 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.

New changes

  • Earlier, a candidate had to only declare the last I-T return (for self, spouse and dependents). Details of foreign assets were not sought.
  • 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 and dependents.
  • Offshore assets, 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

Intention behind the move

  • 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.

Not so easily implemented

  • 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.
  • In 2002 the Union government promulgated an Ordinance diluting the EC’s order.
  • 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.
  • EC considered this as a corrupt practice.
Electoral Reforms In India
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