What mighty contests rise from trivial things” is a line from Alexander Pope’s Rape of the Lock. My reaction to the heat and dust raised on the issue of Narendra Modi’s marriage is, “What trivial things rise from mighty contests!”
Is Mr Modi guilty of suppressing the fact of his marriage? If he is, what should be the consequences, legally speaking?
The Representation of People Act, 1951, as originally enacted, did not require any candidate to make disclosures regarding his/her wealth or criminal records. But the demand for information about election candidates was growing. On May 2, 2002, the Supreme Court declared: “In a democracy, the electoral process has a strategic role. The small man of this country would have the basic elementary right to know the full particulars of a candidate who will represent him in Parliament where laws to bind his liberty and property may be enacted.” And added: “The Election Commission is directed to call for information on affidavit by issuing orders in the exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a state legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
- Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past — if any, whether he is punished with imprisonment or fine?
- Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognisance is taken by the court of law. If so, the details thereof.
- The assets (immovable, movable, bank balances etc) of a candidate and of his/her spouse and that of dependents.
- Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.
- The educational qualifications of the candidate.”
The EC obeyed the order and, on August 24, 2002. The President of India promulgated an ordinance adding Sections 33A, 33B and 125A to the Representation of the People Act. It was later replaced by a parliamentary Act. Section 33A requires filing of an affidavit, more or less covering the areas suggested by the Supreme Court. The prescribed form does not have a column, “Are you married?” However there are columns seeking information about the PAN of the spouse and the properties owned by him or her. Mr Modi has, in all the nomination forms filed till now, including the one raked up by the Congress, left these columns blank.
The Supreme Court while dealing with another petition found that the information collected in the prescribed form was not adequate and therefore directed the EC on March 13, 2003, to seek more particulars. The revised form issued by the Election Commission had a column on details of the assets, both moveable and immoveable, under the heading “spouse(s) name(s)”. In all his forms, Mr Modi left this column blank as well.
Section 125A of the RP Act, added in 2002, prescribes six months’ imprisonment for failing to furnish information, giving false information or concealing any information “with intent to be elected”. The law thus makes it clear that any inconsequential concealment or even falsehood is not a crime — they must be intentional to promote a candidate’s election prospects, for example concealment of information of his/her conviction or criminal record.
The consequences of leaving a column blank or filing a defective affidavit have been set out in a footnote to the prescribed form: “All columns should be filled and no column must be left blank. If there is no information to furnish in respect of any item, either ‘Nil’ or ‘Not applicable’ as the case may be, should be mentioned”. The directions issued by the EC stipulate providing copies of the affidavits of every candidate to all other candidates and to the media. Any rival candidate is free to challenge the veracity of the affidavit. All these are not mere formalities or rituals — they are needed to scrutinise the validity of the nomination, in addition to educating the voter. The returning officer has the power to reject the nomination if any part of it is found to be defective or the affidavit is deficient, i.e. lacking in the required information. But the law commands, “...the returning officer shall not reject any nomination on the ground of any defect which is not of a substantial character” — a phrase that has not been defined.
The SC, in its judgement in Resurgence India v. Union of India on September 13, 2013, held that leaving any column blank may amount to a deficiency justifying the returning officer rejecting the nomination paper, though such a power is exercised rarely. In addition, the blanks may amount to crime under Section 125A. Obviously leaving columns blank will be a crime if the intention is to conceal information of conviction/s or wealth.
Mr Modi did not give false information nor did he conceal anything that wasn’t already in the public domain. In order to constitute a crime under Section 125-A, the omission must be with intent to be elected or to advance his election prospects. Mr Modi’s marital status can have no bearing on his election. Yes, if Jashodaben has considerable properties — or liabilities — and if it is alleged that those are Mr Modi’s benami holdings, leaving the relevant columns relating to spouse blank will amount to concealing information. Mr Modi’s nomination papers were accepted time and again with no one challenging them at any stage, and rightly so because there was no legal basis.
Patriotism is the last resort of a certain class of people, said Samuel Johnson. May I add, morality is the last resort of those who have nothing else to lean on.
