ASSET DISCLOSURE BY
CANDIDATES - POLITY
News: How did the law on disclosure
of assets evolve? | Explained
What's in the news?
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Recently, In response to a petition filed by an MLA
from Arunachal Pradesh legislative assembly), Supreme court observed that
Candidates are not required to disclose every item of moveable assets except
“High value” asset, citing a candidate’s Right to privacy.
Challenge Against HC
Ruling:
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Earlier High Court declared Kri’s victory void
based on non-disclosure of vehicles registered as his assets in the affidavit
filed under Form No 26 of the Conduct of
Elections Rules, 1961 as the sufficient to constitute the corrupt practice
of ‘undue influence’ under section 123(2) of Representation of People’s Act,
1951.
Laws Related to
Disclosure:
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The requirement that prospective candidates will
have to disclose their criminal
antecedents, if any, their educational
qualifications and their assets and liabilities, including those of their
spouses and dependants, arose from a landmark Supreme Court judgment on May
2, 2002.
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The court ruled that the voters’ right to
information in a democracy is part of the citizens’ right to express their
opinion through their vote.
Consequences for Failed
Disclosures:
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Section 125A of the RPA, 1951, prescribes a six-month
prison term, or a fine, or both, for any candidate’s failure to disclose the
required information, or giving false information or concealing such
information.
●
Under Section
100, an election can be declared void if there is “improper acceptance of
any nomination” or “any non-compliance with the provisions of the Constitution
or of this Act or of any rules or orders made under this Act.
Movable and Immovable
Assets:
1. Movable Assets:
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Assets which can be easily moved from one place to
another, for example, cars, jewellery and laptops, also called floating assets.
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According to Section
2(9) of the Registration Act, 1908, movable properties also include timber,
crops and grass, fruits, and fruit juice in trees.
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These can be easily divided to anyone.
2. Immovable Assets:
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Property which cannot be moved from one place to
another is also called fixed assets,
for example, a house, shop, factory, etc.
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According to Section
3(26) of the General Clauses Act, of 1897, immovable properties include
land and other things attached to or permanently rooted in the earth.
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Plants or trees affixed to the land also come under
immovable assets.
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These cannot be transferred to anyone without
making a will or without gifting or partitioning.
Movable Asset
Declaration by Election Candidates (Representation of People’s Act, 1951):
1. Affidavit Filing
Requirements:
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Individuals running for elections are obligated to
submit an affidavit disclosing their criminal records, assets and liabilities,
and educational qualifications.
2. Post-Election
Declarations:
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Upon being elected, Members of Parliament (MPs)
must submit a declaration of their assets and liabilities to the Speaker of Lok
Sabha and the Chairman of Rajya Sabha. & same in case of MLAs in states.
Supreme Court Ruling:
1. Candidate’s
Obligation on Disclosure of Moveable Asset:
●
The Supreme Court ruled that a candidate’s decision
to maintain privacy regarding
irrelevant personal matters does not constitute a ‘corrupt practice’ under
Section 123 of the Representation of People Act, 1951.
●
SC clarified that such non-disclosure does not
amount to a “defect of a substantial nature” under Section 36(4) of the RPA
1951.
2. Criteria for Assets
Disclosure:
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The Court clarified that candidates aren’t required
to declare every movable property unless it significantly impacts their asset
value or reflects their lifestyle.
●
For Example - Concealing the information about an
expensive watch collection could be deemed a substantial defect, suppressing
the value of simple, inexpensive watches may not amount to a defect at all.
3. Asset Declaration to
Enhance Voter’s Participation:
●
It emphasized that asset declaration serves to
enhance democratic participation and the voters’ right to information, aiding
them in making informed voting decisions.
4. Balanced Approach:
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The Court aimed to strike a balance between voters’
right to access relevant asset information and the candidate’s right to
privacy, acknowledging that not every minor detail requires exposure to public
scrutiny.
●
Ultimately, each case must be evaluated based on
its specific facts to determine the substantiality of asset non-disclosure.
Go back to basics:
Grounds For Filing an
Election Petition or Declaring an Election Void:
The election of a particular candidate can be declared void under Section 100 of the Representation of People
Act, 1951, if the High Court is of the opinion that –
●
A candidate is ineligible or disqualified on the
date of their election.
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Any corrupt practice has been committed by a
returned candidate or his election agent or by any other person with the
consent of a returned candidate or his election agent.
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Improper acceptance of any nomination constitutes a
corrupt practice.
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Corrupt practices include improper reception, refusal, or rejection
of any vote, or accepting a void vote.
●
Non-compliance with the provisions of the Constitution,
Representation of the People Act (RPA), or any rules or orders made under this
act constitutes a corrupt practice.
Section 123 of the
Representation of the People Act, 1951:
Corrupt Practices:
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Section 123 outlines corrupt practices as actions
undertaken by a candidate to advance their election prospects.
●
These include bribery,
undue influence, dissemination of false information, and incitement of
enmity based on religion, race, caste, community, or language.
Extension of Corrupt
Practices:
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Section 123(4) broadens the scope of corrupt practices to include
the deliberate dissemination of false statements aimed at influencing the
outcome of an election.
Undue Influence :
●
Section 123(2) of the Act addresses undue influence, encompassing
direct or indirect interference by a candidate, agent, or any other person that
obstructs the free exercise of electoral rights.
● This may involve threats of harm, social exclusion, expulsion from a caste or community, or coercion based on spiritual consequences.