Meenakshi Natarajan Case Asks Whether Form 26’s 2018 Amendment Exceeds Section 33A of the RP Act

The news

New Delhi. An opinion article in The Hindu on Monday, September 28, by Vanshaj Azad, an advocate who works as a Law Clerk-cum-Research Associate at the Supreme Court, examines a gap between an election statute and the rule made under it. On June 12, the Supreme Court dismissed a petition by Congress leader Meenakshi Natarajan challenging a Returning Officer’s decision to reject her nomination for the Rajya Sabha election from Madhya Pradesh. A Returning Officer is the official who conducts the poll in a constituency and scrutinises nomination papers. He held that she had failed to disclose, in her Form 26 affidavit, a pending criminal complaint against her, and had thereby suppressed material information. The complaint, instituted in 2025, alleged that she failed to take appropriate action against a party leader accused of misconduct. After Union of India v. Association for Democratic Reforms (2002), which held that mandatory disclosure advanced voters’ right to an informed choice, Parliament in 2002 inserted Section 33A into the Representation of the People Act (RPA), 1951, along with Sections 33B, 75A and 125A, and the Conduct of Election Rules, 1961 were amended to prescribe Form 26. Rule 4A requires every candidate to file Form 26 with the nomination. Form 26, the writer says, was initially aligned with Section 33A, but in 2018 its Paragraph 5 was amended to require disclosure of all pending criminal cases, whereas Section 33A requires disclosure only of cases involving offences punishable with two years or more in which charges have been framed by a competent court. Rule 4A, he argues, is merely procedural and cannot become an independent source of substantive obligations — delegated legislation, meaning rules made by the executive under power given by an Act, cannot enlarge the Act. In dismissing her plea the Court relied on N.P. Ponnuswami v. Returning Officer (1952), which held that Article 329(b) bars judicial intervention once the election process has begun, leaving an election petition as the only post-election remedy. Natarajan has been given liberty to file an election petition under Section 100 of the RPA. The writer asks whether Articles 32 and 226 should stay closed even where a Returning Officer’s decision is manifestly arbitrary, and suggests the Court revisit Ponnuswami. The syllabus link is GS2: the Representation of People’s Act, the judiciary and delegated legislation.

Static syllabus linkage

1. Section 33A turned a court direction into a statutory duty. Section 33A of the RPA 1951, inserted in 2002, requires a candidate to state in the nomination whether he is accused of an offence punishable with imprisonment of two years or more in a pending case in which a charge has been framed, and whether he has been convicted and sentenced to imprisonment of one year or more for certain offences. The information is given on an affidavit in the prescribed form, and the Returning Officer must display it. Section 125A makes filing a false affidavit or concealing information punishable with imprisonment up to six months, or fine, or both. Section 75A requires elected members to declare assets and liabilities to the presiding officer of the House.
2. ADR (2002) and PUCL (2003) made the voter’s right to know part of free expression. In Union of India v. Association for Democratic Reforms (2002) the Supreme Court held that voters have a right to know the antecedents of candidates, derived from Article 19(1)(a), and directed the EC, using its Article 324 powers, to require disclosure. Parliament responded with the 2002 amendment, and Section 33B provided that no candidate could be required to disclose anything beyond what the Act required. In PUCL v. Union of India (2003) the Court struck down Section 33B, holding that Parliament could not override a declared fundamental right of voters by narrowing disclosure. Form 26 was then expanded to include assets, liabilities and education, as the Court required.
3. Later cases extended disclosure to income sources and publicity. In Lok Prahari v. Union of India (2018) the Court required candidates to disclose sources of income of themselves, their spouses and dependants, and Form 26 now carries such columns. In Public Interest Foundation v. Union of India (2018), a Constitution Bench declined to add disqualifications for charge-sheeted persons, saying that was Parliament’s task, but directed candidates to declare pending cases prominently and parties to publicise them. These rulings show the Court expanding disclosure while refusing to create new disqualifications, which is exactly the line the Natarajan case tests.
4. Subordinate legislation is void if it exceeds the parent Act. The Conduct of Election Rules, 1961 are made by the Central Government, after consulting the EC, under Section 169 of the RPA 1951. Delegated legislation is valid only within the limits of the enabling Act; a rule that goes beyond the statute is ultra vires and void, and a rule may also be struck down if it violates the Constitution or is manifestly arbitrary. The doctrine of excessive delegation adds that the legislature cannot hand over its essential function of laying down policy. A rule may fill in detail — the ‘manner’ of disclosure — but cannot create a new substantive obligation whose breach leads to rejection of a nomination.

Why UPSC loves this

1. Criminalisation of politics is a standing Mains theme. Mains has repeatedly asked about criminalisation of politics, the role of disclosure, and electoral reforms, and the syllabus names the RPA and the judiciary. The Natarajan case adds an administrative-law angle: whether disclosure rules made by the executive can grow beyond the statute. Examiners like questions that link a policy goal everyone supports with a legal limit on how it is pursued.
2. Prelims asks the sections and the cases. Expect Prelims statements on which section requires disclosure of criminal antecedents, which case struck down Section 33B, which Article bars court interference in elections, and the forum and grounds for an election petition. The distinction between a pending case in which charges are framed and a mere complaint is also testable.

Analysis

1. The writer is right that a rule cannot create a new ground of rejection. Section 33A sets a threshold on purpose: a charge framed by a court, for an offence punishable with two years or more. Parliament chose that line to exclude frivolous complaints that anyone can lodge against a politician. A rule that requires disclosure of every pending complaint, and a Returning Officer who treats non-disclosure as suppression fatal to the nomination, effectively disqualify a candidate on a basis the statute does not recognise. That is the classic ultra vires problem. If the rule is valid at all, its breach should attract Section 125A prosecution, not rejection at scrutiny.
2. The counter-view: disclosure is a voter’s right, not merely a statutory duty. Since ADR and PUCL, disclosure rests on Article 19(1)(a), not only on Section 33A. On that reading the Form 26 amendment is not the executive enlarging a statute but implementing a fundamental right that the statute only partially recognised, as PUCL (2003) held when it struck down Section 33B. A pending complaint may be exactly the information a voter wants. The strongest reconciliation is that wider disclosure can be required, but the consequence of omitting a non-statutory item should be proportionate — a defect curable at scrutiny, not a ground to deny candidature.
3. Ponnuswami made sense in 1952 but has a gap in Rajya Sabha polls. Ponnuswami keeps courts out so that elections are not stalled by litigation, which is sound when thousands of constituencies vote together. But in a Rajya Sabha election decided by a small electorate of MLAs, an election petition after the result offers little: the seat is filled, and the petition may take years. The Court has elsewhere allowed limited intervention when an order is ‘in furtherance’ of the election rather than obstructing it. A narrow exception for rejections that are patently without jurisdiction would respect the rationale without insulating arbitrariness.
4. Returning Officers need clearer standards than a single affidavit form. Section 36 of the RPA 1951 tells the Returning Officer not to reject a nomination for a defect that is not of a substantial character. Whether an omitted complaint is substantial is a judgment call, and different officers will decide differently. The EC should issue binding guidance on which omissions are fatal and which are curable, and the Form itself should mirror the statutory threshold clearly. Uncertainty at scrutiny invites partisan use of the Returning Officer’s power, which is the opposite of what disclosure was meant to achieve.

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