SC remands poll affidavit case against Fadnavis to trial court: Beyond optics and ammo for opposition, case won't dent CM's poll prospects

Setting aside a Bombay High Court order that gave a “clean chit” to Maharashtra chief minister Devendra Fadnavis in a case where he was accused of concealing important information in his election affidavit, the Supreme Court on Tuesday remanded the case back to the trial court for fresh consideration. Now, it will again be heard in the trial court to ascertain whether a case for prosecution is made out or not. Advocate Satish Ukey filed a petition alleging that during 2014 Assembly election in Maharashtra, Fadnavis had deliberately concealed information (in his election affidavit) about two criminal cases pending against him. On 23 July, the Supreme Court while reserving the verdict, had said that it was concerned with a limited issue whether or not prima facie Section 125A of the RP Act comes into play. [caption id=“attachment_4842811” align=“alignleft” width=“380”] File image of Maharashtra chief minister Devendra Fadnavis. PTI[/caption] Now, that the apex court has given the judgment, the question is what are the legal implications of this judgment? To answer this question, we need to examine four important legal points: 1) What is Section of 125A of the Representation of Peoples Act? 2) What is Section 33A the Representation of the People Act? 3) Which action of a contestant leads to offence under these section of Representation of Peoples Act and what punishment it provides for it? 4) Whether Fadnavis will have to face any immediate problem owing to this judgment of the apex court?

Section 33A of the Representation of the People Act states:

1. A candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of section 33, also furnish the information as to whether-(i) he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction; (ii)he has been convicted of an offence [other than any offence referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8] and sentenced to imprisonment for one year or more. 2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the candidate in a prescribed form verifying the information specified in sub-section. Does ignoring any of these attract action under Section 125A of the Representation of Peoples Act? Section 125A of the Representation of Peoples Act provides for penalty for filing false affidavit states that a candidate who himself or through his proposer, with intent to be elected in an election: (i) fails to furnish information relating to sub-section (1) of section 33A; or (ii) gives false information which he knows or has reason to believe to be false or (iii) conceals any information, in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both. Fadnavis is accused of not providing information regarding two criminal cases in which no charges were framed but the judicial magistrate (1st Class), Nagpur had taken cognisance. The two cases that have been cited against Fadnavis were related to following sections: Section 217, 218, 425, 466, 467, 468, 470, 474, 506, 109 read with Section 34 of Indian Penal Code (IPC) and Section 500 IPC. So, Fadnavis will now be tried for allegedly not honouring the sub-section 3 of Section 125A of Representation of Peoples Act which talks about concealment of any information mandated in the affidavit.

What are the implications of this case ahead of the Assembly elections which are scheduled for 21 October?

While, politically it will surely give the Opposition new ammunition to slam the ruling party, legally speaking it will have no direct implications on his electoral prospects. Under Sec 8(3) of the Representation of the People Act, a person convicted of any offence and sentenced to imprisonment for no less than two years, shall be disqualified for that and a further six years after release. As Section 125A of Representation of Peoples Act clearly provide maximum punishment of six months or a fine or both, it will certainly not attract any disqualification. If we read sub-section 1 of Section 33 of the Representation of the People Act which clearly states that “a candidate shall, apart from any information which he is required to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under sub-section (1) of section 33, also furnish the information as to whether-(i) he is accused of any offence punishable with imprisonment for two years or more in a “pending case in which a charge has been framed by the court of competent jurisdiction”. In this particular case the charges were not framed against Fadnavis and only cognizance was taken by the judicial magistrate. The judgment has come at a time when the Election Commission announced the dates for Maharashtra Assembly elections and Fadnavis is the incumbent chief minister and face of the Bharatiya Janta Party (BJP) campaign in the state. While it might ‘politically’ harm his prospects, legally it would not help opposition much beyond creating some high-decibel noise.