Law

RTI Plea Questions Why Affidavits Are Not Mandatory in Presidential Poll

The Supreme Court had in 2002 made the filing of affidavits declaring assets and criminal records mandatory in Lok Sabha and assembly polls, but the Election Commission had rejected a similar demand for affidavits in the 2012  elections.

Credit: PTI

Credit: PTI

The question as to why no affidavit is required to be filed by candidates in a presidential election stating their assets, liabilities/dues towards banks/public authorities, details of pending (criminal) cases, if any, and educational qualifications has once again been asked even as just two candidates, Ram Nath Kovind and Meira Kumar, remain in the fray.

The query was filed by lawyer-activist Hemant Kumar under the Right to Information Act with both the presidential secretariat and the secretary general of the Lok Sabha, who is the returning officer, for the election this year. Even though the process of filing of nominations ended about a week ago, no reply has been received so far. While the presidential secretariat has transferred the plea to the Election Commission, the secretary general has not provided any reply.

The question, according to the petitioner, assumes significance because the filing of such affidavits is “now mandated for every public election in the country, be it of panchayati raj institutions, municipal bodies, state legislatures or the parliament.”

Kumar said the filing of affidavits declaring assets, educational qualifications and criminal record, if any, was made compulsory by the Supreme Court through its judgement in 2002.

This year, over 100 nomination papers were filed by candidates for the presidential election, but all barring Kovind and Kumar, were rejected as they could not arrange the signatures of 50 proposers and an equal number of seconders from among the elected MPs or MLAs in their nomination forms. But none were required to submit affidavits along with their nomination papers forcing Kumar to file a petition.

Kumar has also questioned why submission of such affidavits had not been prescribed or mandated in the presidential election either via enactment of an appropriate amendment by the parliament in The Presidential and Vice-Presidential Elections Act, 1952 or by Central Government in the 1974 Rules as framed under this Act.

“Even the Election Commission of India (ECI) has not issued any directions for the submission of the same by exercising its plenary powers for reasons best known to it,” said Kumar, adding that as a member of the legal fraternity and a citizen of India, he wants to know what has prevented the appropriate election authorities responsible for conducting presidential election in India from making submission of such affidavits mandatory.

Incidentally, the issue had also been raised by the Association for Democratic Rights (ADR) during the 2012 presidential election. However, the Election Commission had rejected the demand for making the filing of affidavits by candidates mandatory. “We cannot ask the candidates contesting the election of the President of India to file the affidavits,” the commission had said in a brief reply to ADR’s letter to the chief election commissioner.

ADR, which has been working on electoral and political reforms, had contended that since the Supreme Court judgments of 2002 and 2003 had directed the ECI to get background information on criminal records, assets, liabilities and education, through a declaration from all candidates contesting parliament or assembly elections in exercise of its powers under Article 324 of the constitution, the same logic should be applied in the presidential polls.

The ADR had also cited Article 79 of the constitution in support of its claim stating it lays down that the parliament for the Union shall consist of the president and two houses to be known respectively as the Council of States and the House of the People, and that those contesting the election for the top post be treated at par with those contesting the parliament elections.

Though the demand had then found support in two former Chief Election Commissioners (CEC), T.S. Krishnamurthy and N. Gopalaswami, who had also written to the then CEC V.S. Sampath seeking that the requirement of affidavits be extended to the presidential polls, the Election Commission had not acceded to it.