False Declaration About Candidate's Educational Qualification Can Be Brought Under Section 123(4) Representation of People Act: Delhi HC

While most vocally batting for honesty, transparency and probity in public life, the Delhi High Court has in a learned, laudable, latest and landmark judgment titled Yogender Chandolia vs Vishesh Ravi & Ors in EL.PET. 10/2020 that was reserved on November 17 and then finally delivered on December 24, 2021 held most commendably, cogently and convincingly that a false declaration made by a candidate qua educational qualification can be brought within the four corners of Section 123(4) of Representation of People Act, 1951.

I.A. No.296/2021

To start with, the ball is set rolling in para 1 of this brief, brilliant, bold and balanced judgment authored by Justice Rajiv Shakdher of the Delhi High Court wherein it is put forth that, "This is an application preferred on behalf of respondent no.1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 [in short ―CPC‖] read with Section 86 of the Representation of the People Act, 1951 [in short ―1951 Act].

1.1 The application is predicated on the ground that the election petition read as a whole along with the documents filed, does not disclose a cause of action, and hence, ought to be rejected."

While proceeding ahead, the Bench then envisages in para 2 that, "According to the applicant/respondent no.1, the election petition preferred under Section 80 read with Section 100(1)(b) & (d) as also Section 101 of the 1951 Act, which seeks direction from this Court, to the effect, that the result of the election qua Assembly Constituency-23, Karol Bagh, NCT of Delhi [hereafter referred to as ―Karol Bagh Constituency] held on 08.02.2020 be declared null and void, is founded on the assertions which do not disclose any cause of action.

2.1 In this context, applicant/respondent no.1 has averred that the petitioner has made two principal allegations against him:

(i) First, that the applicant/respondent no.1 has disclosed in his affidavit filed in the prescribed form i.e., Form-26 along with his nomination, that his educational qualification is ― Matric (10th) passed from National Institute of Open Schooling (NIOS) (2003)‖; which according to the petitioner is false.

(ii) Second, that there is no disclosure concerning the pendency of the First Information Report (FIR) registered at Police Station, Paharganj, Delhi in Form-26.

2.2. Insofar as the first allegation is concerned, reference is made to paragraph 12(iii) of the election petition.

2.3. As regards the second allegation, the applicant/respondent no.1, says that registration of an FIR does not tantamount in law to the pendency of the criminal proceedings, and therefore, would also not furnish any cause of action against him.

2.4. It is also asserted by the applicant/respondent no.1 that the alleged false declaration in Form-26 i.e., the affidavit filed with the nomination papers does not amount to corrupt practice within the meaning of Section 123(4) of the 1951 Act.

2.5. Independent of the aforesaid, the applicant/respondent no.1 says that the election petition should be rejected at this stage itself given the fact it has not been framed in accordance with Form-25, prescribed in Rule 94A of the Conduct of Elections Rules, 1961 [in short ―1961 Rules]. The petitioner has neither specified the name of the person whose election is being questioned nor adverted to the corrupt practice undertaken by the applicant/respondent no.1; an aspect which is required to be stated in the affidavit prescribed under Form-25.

2.6. Furthermore, the applicant/respondent no.1 avers that the affidavit filed along with the election petition does not conform to the requirements of the proviso to sub-section (1) of Section 83 of the 1951 Act. In this context, the assertions made qua alleged corrupt practice referred to in paragraphs 8, 12, 13 and the grounds contained in the election petition, have not been verified as per law. In this context, it is averred that there is no distinction made while verifying the assertion made in the election petition, as to the averments, which are true to the knowledge of the deponent and those, which are based on the information received and believed to be true."

Be it noted, the Bench then observes in para 10 that, "With this preface, the first aspect which in my view, should be dealt with at the very outset, is as to whether there was an obligation on the part of the applicant/respondent no.1 to disclose information, inter alia, about his educational qualifications and the fact concerning his involvement in a criminal case.

10.1. The Supreme Court in the judgment rendered in Union of India vs. Association of Democratic Reforms (2002) 5 SCC 294, has held that the voter has a fundamental right to know the antecedents of the candidate, who stands for elections. The relevant observations made by the Supreme Court are set forth hereafter: ―

48. The Election Commission is directed to call for information on affidavit by issuing necessary order in 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:

(1) Whether the candidate is convicted/acquitted/discharged of any criminal offence in the past — if any, whether he is punished with imprisonment or fine.

(2) 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 cognizance is taken by the court of law. If so, the details thereof.

(3) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of dependants.

(4) Liabilities, if any, particularly whether there are any overdues of any public financial institution or government dues.

(5) The educational qualifications of the candidate.‖

10.2. It appears that the 1951 Act was amended which led to the insertion of Section 33A and 33B of the 1951 Act. The sum total of this exercise was that the amendments made to the 1951 Act did not carry through the directions issued by the Supreme Court in the Association of Democratic Reforms case, which led to the second round of litigation. In the matter of People's Union for Civil Liberties vs. Union of India & Anr., (2003) 4 SCC 399, the Supreme Court, via a majority decision, reaffirmed the disclosure requirements stipulated in its earlier judgment rendered in Association of Democratic Reforms case.

10.3. Therefore, what emerges, is that as per the law which obtains at present the candidate who files his nomination is required, inter alia, to disclose his educational qualifications as also his past convictions including fines imposed, imprisonments suffered, acquittals/discharge, if any, obtained.

10.4. Disclosure qua the aforesaid is in addition to the disclosure of information qua pending criminal case where a person if convicted, can be sentenced to imprisonment for two years or more, albeit, where charge is framed or cognizance is taken by Court of law, and information concerning the candidate's assets including those of the spouse and dependents as also liabilities, particularly, those related to the Government or public institutes.

10.5. Therefore, the assertions made in the election petition have to be viewed in the broad framework of law, as enunciated by the Supreme Court in the aforementioned judgments.

10.6. The petitioner, even according to the applicant/respondent no.1, has adverted to the fact that the FIR No.64/2016 dated 30.01.2016 was filed with P.S. Paharganj, Delhi. Concededly, the said assertion is made in the election petition and a copy of the FIR has been placed on record by the petitioner.

10.7. The argument advanced by Mr Srivastava that the relevant entry in the prescribed form required the applicant/respondent no.1 to only disclose pending criminal cases, may not be a tenable argument, given the enunciation of law by the Supreme Court in the aforementioned judgments. The candidate who files his/her nomination is required to disclose his past conviction/acquittal/discharge, if any, and punishment awarded by way of imprisonment and/or fine. Likewise, if prior to six months of filing nomination, if a candidate is accused of an offence punishable with imprisonment of two years or more, in which charge is framed or cognizance is taken by a Court of law, the same needs to be disclosed.

10.8. That being said, one cannot quibble with the proposition that the registration of an FIR does not bring the matter adverted to therein, within the ambit of a pending criminal case. Mr Srivastava is right when he says that a criminal case is said to be pending, either when the concerned Magistrate has taken cognizance under Section 190 of the Code of Criminal Procedure, 1973, or a charge sheet has been filed. Admittedly, the petitioner has neither made any assertion nor placed any document on record, in this behalf. However, this by itself may not help the applicant/respondent no.1 in sustaining his defence that he has made full disclosure given the directions issued by the Supreme Court concerning the disclosure of information by a candidate while filing his nomination."

It is worth noting which cannot be lost sight of that the Bench then stipulates in para 11 that, "Insofar as the submission made by Mr Srivastava that the allegation made against the applicant/respondent no.1 that he had falsely claimed that he had passed Class-X examination in 2003 was not liable to be sustained [since the document filed in support of the same was a copy of the Academic Examination Result ostensibly issued by NIOS for May 2002, wherein the applicant/respondent no.1 was shown as having absented himself and not failed], is not tenable, as at this stage, the apparent dissonance between the pleading and the document would not be enough to reject the election petition.

11.1. The reason being that a careful perusal of the election petition would show that there are assertions made in paragraph 12, which seek to demonstrate that applicant/respondent no.1 has been taking inconsistent stands concerning the highest educational qualification secured by him.

11.2. It is averred that as per Form-26 filed in 2013, the applicant/respondent no.1 claimed that he had obtained a degree in B.Com.in 2008 from CCS University, whereas in Form- 26 filed in 2015, the applicant/respondent no.1 claimed that he was pursuing a B.A. (Programme) from IGNOU, Delhi; which is also claimed to be the highest educational qualification attained by him, at that juncture. In contradiction, in Form-26 filed in 2020, the applicant/respondent no.1 claims his highest educational qualification as Class X pass in 2003, via NIOS.

11.3. Given the material on record, I am unable to persuade myself that merely because the May 2002 Academic Examination Result for Class X, concerning the applicant/respondent no.1, does not align with the assertion made in the petition that the application/respondent no.1 did not pass the examination of Class X in 2003 would not be a good enough reason to reject the petition. The averments made in this behalf have to be read in their entirety, and, therefore, the matter, in my view, needs to be tried."

Most significantly, the Bench then holds in para 13 that, "This brings me to the last issue, which is, that the aspect concerning educational qualification does not fall within the ambit of Section 123(4) of the 1951 Act, which provides as to what practices are deemed as corrupt practices for the purposes of 1951 Act. A coordinate Bench of this Court in the matter of Nand Kishore Garg, on this aspect, has ruled that non-disclosure and/ or false declaration made, vis-a-vis educational qualifications, would constitute a corrupt practice.

13.1. A bare reading of sub-Section (4) of Section 123 of the 1951 Act would show that, inter alia, corrupt practice as defined in the said provision includes publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true in relation to:

(i) the personal character or conduct of any candidate;

(ii) in relation to a candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.

13.2. The expression "in relation to candidature" should, in my view, include information concerning the educational qualification of a candidate, since the Supreme Court has unambiguously held that voters have the fundamental right to know the antecedents of the candidate. A false declaration made, qua educational qualification can be brought within the four corners of Section 123(4) of the 1951 Act."

Conclusion

Furthermore, the Bench then lays bare in para 14 that, "In view of the discussion above and the ratio of the judgement of the Supreme Court in A. Manju case, to hasten the proceedings, leave is granted to the petitioner to file a fresh affidavit in the prescribed form i.e., Form-25, within fifteen days from today. While doing so, the petitioner will bear in mind the requirements captured in Form-25, vis-a-vis verification of the particulars of the corrupt practice required to be provided in the affidavit. The petitioner will state clearly in the affidavit, the parts which are true to his knowledge and those which are based on information."

As a corollary, the Bench then holds in para 15 that, "For the reasons given hereinabove, I am not inclined to reject the election petition at this stage. The above-captioned application is, accordingly, dismissed."

EL.PET. 10/2020 & I.A. No. 8728/2020

What's more, the Bench then holds in para 16 that, "List the matter for admission/denial of documents filed by the parties before the concerned Registrar on 10.01.2022.

16.1. Counsel for the parties will file their respective affidavits, admitting/denying each other's documents, within two weeks from today."

Finally, the Bench then concludes by holding in para 17 that, "List the matter for framing of issues on 25.02.2022."

In sum, the Single Judge Bench of Justice Rajiv Shakdher of Delhi High Court has made it absolutely clear in this notable case that false declaration about candidate's educational qualification can be brought under Section 123(4) of the Representation of People's Act. Of course, it certainly merits no reiteration that the candidates must take all precautions to ensure that their educational qualifications are correctly filled. It definitely needs no rocket scientist to conclude that it will be in their own best long term political interest as filling it wrongly would definitely land them in legal trouble which could even bar them from being elected inspite of winning the elections stupendously which no candidate would ever want himself/herself to land up in!