ESSENTIAL QUALIFICATION OF MP/MLA IN INDIA

N. Kumarjit Singh, Senior Advocate

Creation of India

India was under British Colonial Rule for many centuries. During the 18th/19th Century AD, there was a Freedom movement under the able leadership of Ratrapita Mahatma Gandhi, Pandit Jawaharlal Nehru, Sadar Balabhai Patel, Netaji Subaschandra Bos, etc. (to name a few).

In course of time, soon after the 2nd World Ward, the British authorities decided to grant Freedom and Sovereignty to India.

Consequently the 1st meeting of the Constituent Assembly of India took place in Constitution Hall, New Delhi, on Monday, the 9th December, 1946 at 11.00 a.m. and initiated all steps for framing a Constitution of India.

In the meantime under the provisions of the Indian Independence Act, 1947, India attains Independence on the midnight on 15th August, 1947. The constituent Assembly after various debates finally adopted the Constitution of India on 26th November, 1950 and the members of the Assembly representing the people of India signed the constitution on 24th January, 1950 and the same came into operation w.e.f. 26-01-1950.

Constitution of India

Article 84 and 173 of he Constitution prescribes the Essential qualification for MP/MLA as follows: -

“a citizen of India who is no less than 25 years and possess such other qualifications as may be prescribed by or under any law made by Parliament.”

R.P. Act, 1951

It is the mandate under Section 33 and 33-A of the RP Act, 1951 read with Rule 4A of the Conduct of Elections Rules, 1960 that a candidate is to file 2(two) affidavits in the prescribed form at the time of filing his Nomination for election as MP/MLA.

Under these affidavits, each candidate is bound to disclose his assets and liabilities including his/her family members dependents, criminal antecedents, Educational Qualifications, etc. Such affidavit is for the purpose of providing all informations relating to the candidate to all voters as required under Article 19 (1) (a) of the Constitution which is a fundamental right of a citizen.

Necessity for the Affidavit

In Union of India -V- Assn. for DR (2002)5 SCC 294 at Para 48, the Hon’ble Supreme court of India directed the Election Commission of India as follows:

“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 herein, 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 candidates 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, 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.”

Further the aforesaid direction was issued with a view to enable the voter to make a right choice as every voter has a right to know the antecedents, Character, ability and other backgrounds including educational qualification of each contesting candidate.

Consequently the Parliament of India inserted the provision under Section 33-A of the RP Act 2002 requiring a candidate to file an affidavit by way of furnishing informations relating to his antecedents and Criminal records if any.

Decisions of the Hon’ble Supreme Court of India.

(a)   In Kisan Shankar Kathore -V- Arun Dattatry Sawant & Ors. (2014)14 SCC 162, the Hon’ble Supreme Court of India held as follows: -

       When no information is given in the affidavit by keeping the column as blanks, nomination can be rejected by the Returning Officer at the time of Scrutiny under Section 36(2) R.P. Act, 1951 taking the ground that the Candidate failed to disclosed vital informations relating to his Candidature and as such he do not possess the qualifications prescribed by the Law made by Parliament i.e. RP Act, 1951.

(b)   Similarly in Resurgence India -V- Election Commission of India and Anr. 2014 AIR SC 344, a three Judges Bench of the Hon’ble Supreme Court of India held at Para 27 as follows: -

       “27. What emerges from the above discussion can be summarized in the form of following directions:

(i)    The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.

(ii)   The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.

(iii)  Filing of affidavit with blank particulars will render the affidavit nugatory.

(iv)  It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.

(v)   We clarify to the extent that Para 73 of People’s Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars.

(vi)  The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank.

(vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her.”

Conclusion

From a plain reading of the Decisions rendered by the Hon’ble Supreme Court of India mentioned above and from the provisions under Article 84 173, 324, 19(1)(a) of the Constitution of India read with the relevant provisions under the R.P. Act, 1951, one of the important qualification for MP/MLA is filing of affidavits containing full true particulars relating to his assets and liabilities inclusive of his family members/dependents, criminal antecedents, social activities, educational qualification and other particulars in the prescribed form for enabling the voters to get all information for a choice of candidate in whose favour a vote is to be caste in the Election.



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