Form 26 and the statutory mandate

GS-II – Polity and Governance | Elections | Representation of the People Act | Judiciary | Constitutional Remedies

Why in News?

• Supreme Court: On June 12, the Supreme Court dismissed the petition filed by Congress leader Meenakshi Natarajan challenging the Returning Officer’s decision, rejecting her nomination for the Rajya Sabha election from Madhya Pradesh.
• Returning Officer: The Returning Officer held that Natarajan had failed to disclose, in her Form 26 affidavit, a pending criminal complaint against her and had thereby suppressed material information.
• Criminal Complaint: The criminal complaint, instituted in 2025, alleged that Natarajan failed to take appropriate action against a party leader accused of misconduct.
• Key Questions: The case raises important questions about the scope of the disclosure obligations imposed on electoral candidates and the constitutional remedies available when nomination papers are rejected.

History of Legislation

• Section 33-A, ROPA: Parliament in 2002 inserted Section 33-A into the Representation of the People Act, 1951 (ROPA).
• Association for Democratic Reforms (2002): The legislative amendment was prompted by the top court’s landmark decision in Union of India v. Association for Democratic Reforms (2002).
• Supreme Court: The court held that mandatory disclosure neither imposed an additional qualification for contesting elections nor conflicted with the scheme of the ROPA.
• Informed Choice: Rather, it advanced the electorate’s right to make an informed choice and strengthened the purity of the electoral process.
• Election Commission: Pursuant to the judgment, the Election Commission was directed to mandate disclosure of specified criminal antecedents, assets, liabilities and educational qualifications through an affidavit.
• Subsequent Amendments: The government subsequently introduced Sections 33-A, 33-B, 75-A and 125-A into ROPA and amended the Conduct of Election Rules, 1961, prescribing Form 26 as the affidavit to accompany every nomination paper.

Form 26 and the 2018 Amendment

• Initial Position: Form 26 was initially aligned with Section 33-A.
• 2018 Amendment: A significant departure occurred in 2018.
• Paragraph 5: The Form was amended to require disclosure of all pending criminal cases.
• Section 33-A: Section 33-A mandates disclosure only of those cases involving offences punishable with imprisonment of two years or more in which charges have already been framed by a competent court.
• Divergence: It is this apparent divergence between the parent statute and delegated legislation that lies at the heart of the present controversy.

Disclosure Mandate

• Rule 4A: The disclosure requirement is operationalised through Rule 4A of the Conduct of Election Rules, 1961, which requires every candidate to file an affidavit in Form 26 along with the nomination papers.
• Procedural Mechanism: Rule 4A, however, is merely a procedural mechanism for implementing Section 33A and thus, it cannot become an independent source of substantive obligations.
• 2018 Form 26 Amendment: Yet, the 2018 amendment to Form 26 appears to do precisely that.
• Paragraph 5: Paragraph 5 now requires disclosure of all pending criminal cases, regardless of whether charges have been framed.
• Constitutional Question: The constitutional question, therefore, extends beyond Natarajan’s candidature.
• Delegated Legislation: Can delegated legislation, under the guise of prescribing the manner of disclosure, enlarge a substantive statutory obligation?

Constitutional Remedies

• Article 32: While describing Article 32, Dr. B.R. Ambedkar famously called it the “heart and soul” of the Constitution.
• N.P. Ponnuswami v. Returning Officer (1952): However, while dismissing Natarajan’s challenge to the rejection of her nomination, the top court relied upon the Constitution Bench decision in N.P. Ponnuswami v. Returning Officer (1952).
• Article 329(b): The decision held that Article 329(b) bars judicial intervention in electoral disputes once the election process has commenced.
• Election Petition: This leaves an election petition as the exclusive post-election remedy.

Limits of the Ponnuswami Doctrine

• Natarajan’s Case: Natarajan’s case exposes the limits of that doctrine.
• Constitutional Remedies: Should the constitutional remedies under Articles 32 and 226 remain unavailable even where the Returning Officer’s decision is alleged to be manifestly arbitrary or patently without jurisdiction?
• Ponnuswami’s Rationale: Ponnuswami’s rationale was to prevent judicial intervention from interrupting the electoral process, not to insulate totally perverse administrative decisions.
• Election Petition: Although Natarajan has been granted liberty to challenge her rejection through an election petition under Section 100 of ROPA, the broader constitutional question survives.
• Supreme Court: It may be time for the Supreme Court to revisit Ponnuswami and clarify whether constitutional courts should remain powerless even in the face of patent arbitrariness during the electoral process.

Key Constitutional and Legal Issues

• Disclosure Obligation: The scope of the disclosure obligations imposed on electoral candidates.
• Delegated Legislation: Whether delegated legislation can enlarge a substantive statutory obligation under the guise of prescribing the manner of disclosure.
• Article 329(b): The bar on judicial intervention in electoral disputes once the election process has commenced.
• Articles 32 and 226: The availability of constitutional remedies where the Returning Officer’s decision is alleged to be manifestly arbitrary or patently without jurisdiction.
• Election Petition: Section 100 of ROPA as the available post-election remedy.

Way Forward

• Clarification: The broader constitutional question survives and requires clarification.
• Supreme Court: The Supreme Court may revisit Ponnuswami and clarify whether constitutional courts should remain powerless even in the face of patent arbitrariness during the electoral process.
• Disclosure: The apparent divergence between the parent statute and delegated legislation remains at the heart of the controversy.

Conclusion

• Electoral Process: The case throws open the issue of whether there can be an absolute liability on electoral candidates and what can judicial remedies available when nomination papers are rejected.
• Constitutional Balance: The problem is to strike a balance between ensuring that judicial intervention does not come in the way of holding elections, and also preventing perfectly ludicrous executive decisions from being shielded.

UPSC Mains Practice Question

Q. In your view, what are the implications of disqualifying nomination papers on alleged non-disclosure of criminal cases from contesting elections – burden of disclosure and a question on constitutional remedies & processes? Discuss.