[Representation Of Peoples Act] 'Election Candidates Must Only Disclose Convictions Resulting In Imprisonment Of One Year Or More': Bombay HC

The Bombay High Court has held that election candidates are required to disclose only those convictions that have resulted in imprisonment of one year or more. The Court read down Entry 6 of Form 26 of the Conduct of Elections Rules, 1961, to bring it in line with Section 33A(1)(ii) of the Representation of People Act, 1951, which mandates such disclosure.

Justice R.I. Chagla was hearing applications filed by Respondent Nos. 1 and 14 under Order VII Rule 11 CPC seeking rejection of the election petition filed against them. The petitioner had argued that the returned candidate failed to disclose his conviction in Form 26, thereby rendering his election liable to be set aside.

However, the respondents contended that Section 33A of the 1951 Act requires disclosure only where a conviction has resulted in imprisonment of one year or more. Since Respondent No. 1 was released under the Probation of Offenders Act without undergoing imprisonment, no disclosure was necessary.

The Court noted that under Section 33A (1)(ii), the disclosure insofar as past convictions are concerned is provided, and the candidate is required to disclose those offences (other than those under Section 8), where the candidate has been convicted and sentenced to imprisonment for one year or more.

The Court observed that Entry 6 of Form 26, being a subordinate legislative provision, cannot go beyond the parent statute. Thus, it was required to be read down to conform with Section 33A(1)(ii).

“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 observed.

The Court also noted that forms must yield to substantive provisions of law, and any contrary interpretation would render Entry 6 unconstitutional. It observed:

“Any other meaning or interpretation given to Entry 6 of Form 26 would result in making Entry 6 of Form 26 unconstitutional and violative of not only Section 33A (1)(ii) of the 1951 Act”

Hence, the Court held that the respondent was not required to disclose the conviction as it did not result in imprisonment of one year or more.

Accordingly, the Election Petition was dismissed as it failed to disclose any cause of action and suffered from incurable defects.

Case Title: Rajan Baburao Vichare v. Naresh Ganpat Mhaske & Ors. - Election Petition No. 3 of 2024; Applications in E.P.(L) Nos. 30947 & 31834 of 2024.

Appearances:

• For the Petitioner: Mr. Darius Khambata, Senior Counsel, Mr. Pankaj Savant, Senior Counsel, Ms. Shreenandini Mukhopadhyay, and Ms. Joshna D'Souza i/b. Mr. Sanjay Gawde.
• For Respondent No. 1: Mr. Vikram Nankani, Senior Counsel, along with Mr. Chirag Shah, Mr. Vishal Acharya, Mr. Shyamsundar Jadhav, Mr. Bhavya Shah, and Mr. Mehul Talera i/b. Mr. Chirag Shah.
• For Respondent No. 14: Mr. Hare Krishna Mishra i/b. Law Global.

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