Disclosure of Criminal Antecedents by Candidates (Section 33A and Form 26)

Every person who wants to contest an election to Parliament or a state legislature in India must tell voters certain facts about themselves. This includes their criminal cases, their assets and debts, and their education. They do this through a sworn statement called an affidavit, filed in a fixed format known as Form 26, along with their nomination paper. The idea is simple: a voter has the right to know who they are voting for.

Why does it exist?

For many years, voters knew very little about candidates beyond their name and party. People facing serious criminal charges could contest without voters ever finding out. This problem is often called the criminalisation of politics. Mandatory disclosure does not stop such people from contesting. But it gives voters the information to make an informed choice, just as you would check a seller's reviews before buying something online.

Where did it come from?

The rule came from the courts first, and Parliament followed.

• In Union of India v. Association for Democratic Reforms (2002), the Supreme Court held that voters have a right to know about a candidate's criminal background, assets, liabilities and education. The court said this "right to know" comes from Article 19(1)(a), the freedom of speech and expression. It asked the Election Commission to make candidates disclose these facts.
• Parliament then passed the Representation of the People (Third Amendment) Act, 2002. It added Section 33A (disclosure of criminal cases) and Section 33B to the Representation of the People Act, 1951 (RPA). Section 33B said candidates need not disclose anything beyond what the Act required, whatever a court had ordered.
• In PUCL v. Union of India (2003), the Supreme Court struck down Section 33B. It held that the section diluted the voter's fundamental right to know.
• Rule 4A was added to the Conduct of Elections Rules, 1961 in September 2002. It requires the affidavit to be filed in Form 26, sworn before a First Class Magistrate or a Notary.

What does Section 33A say?

Along with the nomination paper, a candidate must state whether:

• they are accused of any offence punishable with imprisonment of two years or more, in a pending case in which a court has framed charges; and
• they have been convicted of an offence and sentenced to imprisonment of one year or more (other than offences that already disqualify them under Section 8 of the RPA).

Section 33A(2) says the candidate must also give an affidavit confirming this information. This affidavit is Form 26.

What does Form 26 ask for?

Form 26 goes wider than the bare text of Section 33A. It asks for:

• details of pending criminal cases, in a table that has one column for FIR (police case) details and another for the case number and court, so both police cases and private complaints can be listed;
• details of past convictions;
• assets and liabilities of the candidate, spouse and dependants;
• educational qualifications, and sources of income.

After the Supreme Court's 2018 judgment in Public Interest Foundation, Form 26 was revised. Candidates must now state their pending criminal cases in bold letters. This gap between the narrow words of Section 33A ("charge framed") and the wider Form 26 ("pending cases") is exactly where disputes arise.

What happens if a candidate hides information?

There are three separate consequences. Keep them apart:

1. Rejection at scrutiny: The Returning Officer checks every nomination under Section 36 of the RPA. In Resurgence India v. Election Commission of India (2013), the Supreme Court held that an affidavit with blank columns makes the nomination liable to rejection. However, Section 36(4) says a nomination cannot be rejected for a defect that is not of a substantial character.
2. Criminal punishment: Under Section 125A, a candidate who hides information or gives false information in the nomination or affidavit can be punished with imprisonment up to six months, or a fine, or both.
3. Setting aside the election later: If a winning candidate hid facts, a court can declare the election void through an election petition. In Krishnamoorthy v. Sivakumar (2015), the Supreme Court held that hiding criminal cases can amount to undue influence on voters, which is a corrupt practice under Section 123(2).

How have courts widened the duty?

• Public Interest Foundation v. Union of India (2018): A Constitution Bench directed candidates to tell their party about their criminal cases. Parties must put these details on their websites. Candidates and parties must also publicise them at least three times in newspapers and on TV after filing nominations.
• Rambabu Singh Thakur v. Sunil Arora (2020): Parties must publish why they chose a candidate with pending criminal cases, and why a candidate with a clean record could not be chosen. This must be done within 48 hours of choosing the candidate, or not less than two weeks before the first date for filing nominations.
• Karikho Kri v. Nuney Tayang (2024): The court added balance. It held that not every omission is a substantial defect; the non-disclosure of three vehicles already gifted or sold did not void the election. The court said candidates also have a right to privacy in matters that have no bearing on their candidature.

India in practice

The Election Commission uploads every candidate's Form 26 on its website. Civil society groups analyse these affidavits after every election and publish how many candidates declared criminal cases and what they own. This has made candidate information much easier for ordinary voters to find.

Commonly confused concepts

• Disclosure vs disqualification: Disclosure only means telling voters about a case. It does not stop a person from contesting. Disqualification (Section 8 of the RPA) stops a person from contesting, and it applies only after conviction, not on a pending case.
• Cognizance vs charge framing: A court "takes cognizance" when it first formally notices an offence and may summon the accused. "Framing a charge" comes later, when the court formally tells the accused what offence they will be tried for. Section 33A mentions only charges framed; Form 26 asks about pending cases more broadly.
• Section 33A vs Section 125A: Section 33A creates the duty to disclose. Section 125A punishes breaking that duty.
• Rejection of nomination vs voiding an election: The Returning Officer can reject a nomination before polling. Only a High Court, through an election petition, can void an election after the result.

Issues, criticism and the way forward

• Unclear standard: The law does not define what a "defect of substantial character" is. So different Returning Officers may treat similar omissions differently. Critics argue that a single official, deciding quickly during scrutiny, holds great power over who can contest.
• Mismatch between the Act and the form: Section 33A speaks of charges framed, while Form 26 asks about pending cases. Experts suggest the law and the form should use the same wording so candidates are clear about their duty.
• Weak penalty: Six months' imprisonment under Section 125A is seen by many as too light to deter false affidavits. The Election Commission recommended in 2011 that the punishment be raised to two years' imprisonment. The Law Commission has also suggested treating a false affidavit as a corrupt practice under Section 123, which could lead to disqualification.
• No verification: Nobody checks the affidavit contents at the time of filing. Wrong information usually comes out only if a rival objects or files a case later.
• Way forward: Suggestions include clear written guidelines for Returning Officers on what counts as a substantial defect, a short window for candidates to correct minor errors, and faster disposal of criminal cases against legislators.

Concepts to Know

• Affidavit: A written statement that a person swears is true, before a Notary or Magistrate. Lying in it is a punishable offence.
• Returning Officer (RO): The government officer in charge of the election in a constituency. The RO receives and checks nomination papers and declares the result.
• Scrutiny of nominations: The fixed day on which the RO examines all nomination papers and decides which are valid.
• Private complaint: A criminal case started by a person directly in a Magistrate's court, instead of going through a police FIR.
• Corrupt practice: Wrong acts listed in Section 123 of the RPA, such as bribery and undue influence. If proved, the election can be voided and the person can be disqualified.