Meenakshi Natarajan Case : Was Rejection Of Nomination Valid? Law On Disclosure Of Criminal Antecedents Explained

The rejection of Meenakshi Natarajan's nomination for Rajya Sabha elections from Madhya Pradesh over failure to disclose a criminal complaint pending against her has raised certain weighty legal questions.

The Returning Officer took the view that Natarajan's failure to mention a criminal complaint filed againt her in a Hyderabad Court rendered her nomination invalid and accordingly rejected it. Her contention was that there was no legal requirement to disclose the case since she has received only a pre-cognizance summons as per the proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita. The Supreme Court, on June 12, refused to entertain her writ petition challenging the Returning Officer's decision, observing that the proper remedy was to file an election petition.

In this context, let us see what the law says regarding the disclosure of criminal cases, and the power of the Returning Officer to reject nomination at the threshold.

Does law require the disclosure of all criminal cases pending against a candidate?

As per Section 33A of the Representation of the People Act, 1951, a candidate needs to disclose a criminal case pending against her in the election affidavit only if :

• the offence alleged is punishable with imprisonment for a term of two years or more, and
• charge has been framed by the trial court.

In 2019, the Supreme Court, in Satish Ukey v. Devendra Gangadharrao Fadnavis, held that a candidate must also disclose a criminal case in which cognizance has been taken by the Court. The Court's conclusion was based on the interpretation that apart from the information mentioned in Section 33A, the candidate must also disclose any other information as required by the Rules.  The Form 26 of the election affidavit required the furnishing of cases in which cognizance has been taken. So, cumulatively reading Secton 33A and Form 26, the Court held that cases in which cognizance has been taken are also to be disclosed. The Court also noted that in People's Union for Civil Liberties (PUCL) and Ors. v. Union of India (UOI) and Ors (2003), the Court had observed that "there is no good reason for excluding the pending cases in which cognizance has been taken by the Court from the ambit of disclosure." 

The Karnataka High Court, in BG Uday v. HG Prashant, held that a candidate cannot be held guilty of filing a false affidavit for not disclosing a pending case in which charge has not been framed or cognizance has not been taken.

Changes after the 2018 SC directions

In 2018, a 5-judge bench of the Supreme Court, in Public Interest Foundation v. Union of India, issued a slew of directions regarding the disclosure of criminal antecedents as follows :

(i) Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

(ii) It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

(iii) If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.

(iv) The concerned political party shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

(v) The candidate as well as the concerned political party shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the 98 same shall be done at least thrice after filing of the nomination papers.

The notable point is that the Supreme Court did not specify that the disclosure of pending cases must be limited to cases in which cognizance has been taken or charges have been framed.

Following the Supreme Court's judgment, the Centre amended the Conduct of Election Rules to amend Form 26. As per the amended Form 26, a candidate  is required to make a declaration that there is no criminal case pending against him/her. If there is a criminal case pending, their details have to be given in the following table format.

As can be seen from the above table, it requires the disclosure of cases even where charges are not framed. It does not specify that disclosure need to be made only if cognizance has been taken.

In the Meenakshi Natarajan case, her lawyer Senior Advocate Dr Abhishek Manu Singhvi argued that she had no obligation to disclose the Hyderabad complaint since it was at a pre-cognizance stage. Refuting this argument, Senior Advocate Mukul Rohatgi, for the rival candidates, referred to Form 26, to say that all pending cases have to be disclosed after the 2018 amendment, regardless of cognizance having been taken. Singhvi responded that Form 26 cannot override the mandate of Section 33A of the RP Act. The Supreme Court did not decide this question, and left it to the decision of the Election Tribunal.

However, going by the dictum in the 2019 Satish Ukey judgment, where the Court undertook a cumulative reading of Section 33A RP Act and Form 26 to hold that cases in which cognisance has been taken are also to be disclosed though Section 33A refers to only cases where charges have been framed, it is doubtful whether Meenakshi Natarajan's argument will be sustained eventually.

Can the Returning Officer reject a nomination for failure to disclose a pending case?

The Returning Officer is only expected to undertake a preliminary inquiry at the stage of scrutiny of nomination papers. As per Section 36(2) of the RP Act, the Returning Officer can reject a nomination if :

• The candidate is already suffering from any disqualification under the law.
• There is non-compliance with provisions of Section 33 and 34.
• The signature of the candidate is not genuine

Section 33 is largely procedural, that the nomination should contain the prescribed authorisations, certificates, electoral roll number etc. Section 34 deals with election deposits. 

A reading of these provisions show that the Returning Officer is not expected to go into the correctness of the information furnished by the candidate. If the nomination has been filed in the prescribed format and accompanied with the deposit, it should be accepted.

In fact, the FAQ published by the Election Commission of India itelf states that "giving wrong information in nomination form is not the criterion for rejection of nomination papers."

In another FAQ for ROs, in response to the question "If information given by a candidate in affidavit is wrong, can RO reject the nomination of the candidate? Especially, if other candidates raise objection and give proof that the information in the affidavit is wrong", it is stated by the ECI :

Ans. No, the nomination of a candidate cannot be rejected for suppressing or giving false information in the affidavit. The copies of the nomination papers filed by each candidate along with copy of the affidavit accompanying the nomination should be displayed on the notice board in the office of RO on the day the nomination is filed. If anyone furnishes any information contradicting the statements in the nomination form or affidavits by means of a duly sworn affidavit, copies of such affidavits should also be displayed on the notice board. If the RO is satisfied that the information given by the candidate in the affidavit is wrong he is required to file a formal complaint before the appropriate Court under section 125A of the R.P. Act, 1951 and Section 177 of IPC (read with section 200 CrPC).

The Supreme Court, in Resurgence India vs Election Commission Of India (2013), held that power of Returning Officer to reject the nomination paper must be exercised very sparingly. The Court also held that the RO can reject a nomination paper if the candidate has filed the affidavit with blank particulars. The Court did not go to the extent of stating that if the affidavit has been filed by filling up the tables, the RO can go into the correctness of the information.

In Kisan Shankar Kathore vs Arun Dattatraya Sawant (2014) as well, the Supreme Court expressed that the Returning Officer cannot conduct an examination into the correctness of the information given, and can reject nomination for apparent grounds only.

So, it follows from the precedents as well as the ECI's FAQs that the Returning Officer has no power to reject a nomination where false information is furnished or material information is suppressed. The recourse is to file a criminal complaint against the candidate for filing a false affidavit for offences under Section 125A RP Act and Section 177 IPC.

Hence, it can be said that the Returning Officer exceeded his jurisdiction by rejecting Meenakshi Natarajan's nomination for not disclosing a pending case.