Who Can Challenge Candidate's False Election Affidavit? Criminal Complaints By Private Individuals Expand

When a candidate files nomination papers which include a sworn affidavit, the latter informs voters of who the candidate stands as a prospect to elect: criminal cases, assets and liabilities, education and so on. But if the affidavit proves false, who can take action?

For years the answer was unclear, but on 16 October 2026 the Supreme Court answered this question. In Sri Rajkumar Madki v. Dr. Shailendra Beldale (2026 INSC 1138), the Court held that an ordinary voter could go directly to a magistrate. This post sets out the background to the dispute and the Court's conclusions.

The affidavit regime is a product of judicial activism, as the Supreme Court ruled in Union of India v. Association for Democratic Reforms (2002) that voters have a right to know what they are voting for. Parliament inserted Sections 33A and 125A in the Representation of the People Act, 1951 by way of Act No. 72 of 2002.. The details are filed in Form 26 under the Conduct of Election Rules, 1961.

Section 125A is the penal provision, with the punishment for failure to furnish the required information, giving false information or concealing it with the intent to be elected as a candidate being up to six months' imprisonment, a fine or both.

In addition, the courts have repeatedly held that a false or incomplete affidavit is a serious matter in election law. In Krishnamoorthy v. Sivakumar (2015) the Supreme Court held that non-disclosure of criminal antecedents could amount to "undue influence", a corrupt practice under Section 123(2) of the Act, and later decisions such as Mairembam Prithviraj v. Pukhrem Sharatchandra Singh (2017) held that the defect would have to be material rather than trivial. Such cases are normally election petitions to a civil court which can void an election, but Section 125A is a different route: a criminal prosecution for the false statement itself.

Who can set prosecution under Section 125A in motion?

This was the key outstanding question. The suspect provision was Section 195 of the Code of Criminal Procedure (CrPC), this prevents a court from taking cognizance of specified offences and others except upon written complaint by the public servant concerned or by any superior authority. The nomination affidavit goes to the Returning Officer, a public servant. Consequently, candidates argued that it was only the Returning Officer or the Election Commission which could complain, and the Karnataka High Court agreed. It held that Section 125A would have to meet the requirements of Section 195(1) and that the remedy available to a voter was an election petition rather than a private complaint. That meant that enforcement was contingent on officials complaining, and the Election Commission acknowledged the problem. It released a press release in June 2020 that said that the cases involving "serious omission" would be referred to investigating agencies on a case-by-case basis. But that people can still go to court. It was a matter of policy and not a right of the voter.

The Court held that this was a substantial question of law which had not been decided before, and that a private person could file a complaint under Section 200 CrPC against a returned candidate for a Section 125A offence, and that the requirements of Section 195(1) did not have to be met. The reasoning has three strands.

1. The text of Section 195: Section 195(1)(a) covers offences under Sections 172 to 188 of the IPC, as well as abetment, attempt or conspiracy relating to them. Section 125A of the RP Act is not on the list.

2. Deliberate omission: Section 125A came on the statute books in 2002, but Section 195 was amended in 2006. The Court presumed that Parliament must have known of the existence of Section 125A when amending it, and so its omission from Section 195 was deliberate.

3. The "notwithstanding" clause: Section 125A operates "notwithstanding anything contained in any other law", so Section 195's rigour is not applied to a private complaint under it. The Court also found that there was no provision in any enactment which confined complaints to public servants.

The Court also declined to take its cues from the Election Commission's press notes, stating that statutory interpretation was primarily a court function and that the press note did not bind it.

Since July 2024 the CrPC has been replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023. The complaint here was filed in 2023 under the CrPC, and the corresponding provisions are Sections 223 and 215 of the BNSS. Those filing fresh complaints should be mindful of how the Court's reasoning applies to the new Code.

The twist: the voter lost anyway

The facts are instructive. The complainant alleged that Bidar MLA Dr. Shailendra Beldale gave a false residential address in his nomination affidavit. The Supreme Court corrected the High Court's legal reasoning but left the complaint quashed, finding that the allegation had been "more than effectively rebutted" and that a conviction was "remote" - continuing the case would waste time.

The lesson is that standing to complain is not the same as a strong case. A private complainant who can't back up the allegation with solid documents may find the case dismissed at the threshold, even though the legal door is open.

It democratises enforcement. Section 125A was enacted so that voters could rely on who the candidates say they are. If only those who accept nominations could complain, the provision would be completely dormant. Allowing citizens, civil society groups and watchdogs to approach a magistrate directly enhances the probability that the law will be used, which fits the logic of the Association for Democratic Reforms line of cases where the voter's right to information is the core value.

It is supplementary to election petitions. An election petition can set aside an election, but only a limited number of people can file one and strict timelines apply. A criminal complaint seeks punishment for the false statement, not annulment.

The risks: harassment and rival candidates

The candidate's side raised a legitimate concern. Counsel argued that without the Section 195 filter, rivals and others could file frivolous complaints and defeat the purpose of Section 125A. Election season is full of litigation used as a political weapon. The Court's response was to trust the existing machinery: it said that where a complaint is filed to harass an elected candidate or make frivolous allegations, the law provides magistrates with the tools to pass appropriate orders. The Beldale outcome is itself an example of the filter working - the complaint failed on its merits. The magistrates are made into the gatekeepers; they can investigate the complaint, take statements, and even decide not to proceed if there is no prima facie case. In the BNSS, the magistrate must allow the accused to have his say before he takes cognizance of a private complaint. Whether this is sufficient or not will have to be seen. The offence is bailable and carries a maximum of six months, so the real cost to a candidate is the harassment of defending a case. Magistrates will have to be disciplined about screening complaints. In this regard, therefore, the judgment makes the criminal procedure more accessible without altering its outcomes. Deterrence will require harsher sentences or the use of the election petition procedure where there is material non-disclosure.

How can a voter or a group of advocates make their case strong for complaining in this regard:

1. Gather documentary evidence first. Compare the affidavit with court records, property registries or other documents. The Beldale complaint failed because the candidate could rebut it.

2. Focus on material omissions or falsehoods, rather than technical slips. Courts have consistently distinguished between the two.

3. This is a magistrate-level complaint, not a police FIR, so the case must be framed and supported for the court from the start.

The Supreme Court has cleared the way for enforcement of Section 125A to be in the hands of the voters. They can now be the ones who test whether a candidate told the truth under oath. But it still reveals the boundaries. A complaint needs proof, magistrates determine if a case proceeds, and six months punishment is not such a severe one. This decision enlarges the number of people who can bring up this issue, who will benefit from this to enhance the integrity of election affidavits?

Author is a 3^rd year Law student at Christ University, Delhi NCR campus. Views are personal.