Bombay High Court | Disclosure of Convictions Mandatory Only for Sentences Exceeding One Year | Section 33A Representation of the People Act
Sanchayita Lahkar
The High Court of Bombay Single Bench of Justice R.I. Chagla held that election candidates are obliged to disclose only those criminal convictions that carry a sentence of imprisonment for one year or more. The Court read down Entry 6 of Form 26 under the Conduct of Elections Rules, 1961, harmonising it with Section 33A(1)(ii) of the Representation of the People Act, 1951. Allowing applications by Respondent Nos. 1 and 14 under Order VII Rule 11 of the Code of Civil Procedure, the Court rejected the election petition, holding that the alleged non-disclosure of a conviction without imprisonment did not invalidate the election.
The matter arose from applications filed by Respondent Nos.1 and 14 seeking rejection of the election petition under Order VII Rule 11 of the Code of Civil Procedure, 1908, on the basis that the petition was not maintainable. The election petition alleged that the returned candidate had failed to disclose his past conviction in the statutory Form 26 affidavit, as required by law. The petitioner argued that such non-disclosure constituted a ground to set aside the election.
The petitioner’s case was premised on Sr. No.6 of Form 26, as amended by Notification No. SO 5196 (E) dated 10th October 2018. The petitioner contended that the returned candidate, having been convicted by an order dated 29th February 2016 of the Chief Judicial Magistrate, Thane, and whose conviction was upheld in appeal on 9th February 2017, was required to disclose the conviction. However, the candidate marked “Not Applicable” against the relevant disclosure column in Form 26, leading to the allegation of suppression of material facts.
The respondent’s contention was that disclosure under Form 26 was required only where the conviction resulted in imprisonment of one year or more. Since the respondent had been released under the Probation of Offenders Act, 1958, without undergoing imprisonment, he argued that his affidavit was accurate. Further, it was contended that Form 26 could not be read in a manner inconsistent with Section 33A(1)(ii) of the Representation of People Act, 1951.
Senior Counsel appearing for the respondent argued that Rule 4A of the Conduct of Elections Rules, 1961, introduced on 3rd September 2002, mandated the filing of Form 26 as an affidavit at the time of nomination. Section 33A of the Representation of People Act, 1951, required disclosure only where the candidate had been convicted and sentenced to imprisonment of one year or more. Reliance was placed on the judgment of the Supreme Court in Union of India v. Association for Democratic Reforms (2002) 5 SCC 294 (ADR Judgment), where the Court held that the Election Commission had powers under Article 324 of the Constitution to call for affidavits regarding antecedents of candidates. The respondent stated that subsequent legislation codified such requirements within limited bounds.
The respondent further cited the Supreme Court’s decision in People’s Union for Civil Liberties v. Union of India (2003) 4 SCC 399 (PUCL Judgment), wherein Section 33A(1)(ii) was upheld as constitutional. The PUCL judgment concluded that disclosure requirements for convictions were limited to cases involving imprisonment of one year or more. It was submitted that any interpretation enlarging the disclosure requirement beyond statutory limits would render Form 26 unconstitutional.
It was also submitted that the petition failed to comply with Section 83 of the Representation of People Act, 1951, as it did not plead material facts with specificity. The respondent argued that the petition only made vague allegations without a complete chain of events, thereby failing to disclose particulars of corrupt practices as required by law. Reliance was placed on precedents such as Hari Shankar Jain v. Sonia Gandhi (2001) 8 SCC 233 and Kanimozhi Karunanidhi v. A. Santhana Kumar (2023 SCC OnLine SC 573), which underscored the fatal consequences of failure to plead material facts.
On the other hand, the petitioner’s counsel argued that the election petition did disclose a cause of action and contained sufficient material facts. Reliance was placed on the Supreme Court’s decisions in Krishnamoorthy v. Sivakumar (2015) 3 SCC 467 and Lok Prahari v. Union of India (2018) 4 SCC 699, which recognized that non-disclosure of criminal antecedents or assets constituted undue influence under Section 123(2) of the Representation of People Act, 1951, amounting to a corrupt practice. It was submitted that once a candidate failed to disclose a past conviction, such suppression invalidated the election under Section 100 of the 1951 Act.
The petitioner further contended that Section 33A(1) of the 1951 Act used expansive language— “apart from any information which he is required to furnish under this Act or the rules made thereunder”—thus permitting Form 26 to require disclosures beyond those enumerated in Section 33A(1)(ii). It was argued that the amendment of 2018, requiring disclosure of all convictions irrespective of imprisonment, was valid and enforceable. Reference was made to the Supreme Court’s decision in Satish Ukey v. Devendra Gangadhar Fadnavis (2019) 9 SCC 1, which was said to have affirmed the validity of expanded disclosure requirements.
The petitioner maintained that failure to disclose a conviction misled the electorate, thereby materially affecting the election. It was further contended that even if material effect was required to be pleaded, the petition had done so by alleging that voters were deprived of the right to make an informed choice.
Justice R.I. Chagla observed that the sources of election law relating to disclosures included three categories: “(i) law made by Parliament as contemplated under Article 102(e) of the Constitution; (ii) Orders and directions issued by the Election Commission under Article 324 of the Constitution; (iii) Directions given by the Constitutional Courts i.e. the Supreme Court under Article 32 and the High Court under Article 226 of the Constitution.”
The Court considered the PUCL judgment, noting that “PUCL (Supra) has expressly upheld the constitutional validity of Section 33A (1)(ii) of the 1951 Act. In conclusion at paragraph 123(6), Justice Reddi held that insofar as Section 33A (1)(i) of the 1951 Act is concerned, there is no good reason for excluding the pending criminal cases in which cognizance has been taken by the Court from the ambit of disclosure. The Supreme Court although keeping the disclosure relating to past conviction under Section 33A (1)(ii) intact, has included cognizance taken by the Court within the ambit of disclosures of pending cases required as the Right to Information provided under Section 33A (1)(i).”
The Court further recorded: “I further find much merit in the submission on behalf of the Respondent No.1 that the subordinate legislature cannot travel beyond the main or the parent legislation. The Election Rules, including Rule 4A, must be given a meaning which must correspond to Section 33A (1)(ii). Further, Entry 6 of Form 26 as amended in 2018, which comes under Rule 4A, cannot transgress or breach the provisions of Section 33A (1)(ii).
Accordingly, it must be read down to mean only those cases of past conviction, where there is a sentence of imprisonment of one year or more and which must be disclosed by the candidate.”
The Court relied on the settled principle that forms cannot override substantive statutory provisions: “It is settled law that a Form must invariably yield to the substantive provision of law. Thus, in the present case Form 26 must yield to Section 33A (1)(ii) of the 1951 Act.” In view of this, the Court rejected the petitioner’s argument that Section 33A(1) permitted expanded disclosures.
The Court held: “In view thereof, the Respondent No.1 was not required to disclose his conviction of a criminal offence, particularly where the conviction had not resulted in imprisonment of one year or more. The Election Petition accordingly fails to disclose a cause of action.”
Justice Chagla also rejected the petitioner’s argument that the grounds raised by the respondent could only be considered at trial. “These grounds i.e. lack of cause of action and / or incurable infirmities can be raised in an Application under Order VII Rule 11 for rejection of Petition as given such grounds it would be an exercise in futility to allow the parties to go to trial.”
“Accordingly, the Application (L) No.30947 of 2024 and Application (L) No.31834 of 2024 are allowed and the Election Petition is rejected on the ground that it fails to disclose any cause of action. The Election Petition is disposed of in the above terms. The Applications, if any, which are pending in the Election Petition do not survive and are disposed of accordingly.”
Advocates Representing the Parties
For the Petitioners: Mr. Darius Khambata, Senior Counsel, Mr. Pankaj Savant, Senior Counsel, Ms. Shreenandini Mukhopadhyay, Ms. Joshna D’Souza i/b. Mr. Sanjay Gawde
For the Respondents: Mr. Vikram Nankani, Senior Counsel, Mr. Chirag Shah, Mr. Vishal Acharya, Mr. Shyamsundar Jadhav, Mr. Bhavya Shah and Mr. Mehul Talera i/b. Mr. Chirag Shah; Mr. Hare Krishna Mishra i/b. Law Global
Case Title: Rajan Baburao Vichare v. Naresh Ganpat Mhaske & Ors.
Neutral Citation: 2025: BHC-OS:14621
Case Number: Application in E.P. (L) No.30947 of 2024 in Election Petition No.3 of 2024; Application in E.P. (L) No.31834 of 2024
Bench: Justice R.I. Chagla
