ORDER :

Sanjib Banerjee, J.

This petition was taken up on July 12, 2021 and an order passed. However, the matter was mentioned on behalf of the Election Commission of India at the end of court proceedings on July 12, 2021, indicating that a mistaken submission had been made on behalf of the Commission. Accordingly, the order that was pronounced was not signed and the matter was directed to appear today, upon notice to the petitioner.

2. The petitioner claims to be an ordinary citizen and asserts that one of the respondents, K.C.Veeramani, who was a candidate at the Jolarpet constituency in the Assembly elections conducted in the State in April, had furnished false information with knowledge and reason to believe that such information was false. The petitioner further alleges that the said candidate also concealed material information in course of filing his nomination papers and the affidavits accompanying the same.

3. Veeramani has lost the election. As a consequence, no election petition can be instituted since the allegation is not against the successful candidate. In any event, it is unlikely that any person – even a voter in the relevant constituency – can challenge the election result pertaining to the constituency. Ordinarily, only a failed candidate may take up cudgels on cogent grounds; and, that too only against the successful candidate.

4. The petitioner had made a written representation furnishing details of how the concerned candidate furnished false information and concealed other material information in course of filing his nomination papers and the attendant documents. The Election Commission has dealt with the representation by leaving the petitioner free to lodge a complaint or institute criminal proceedings, if the petitioner was so advised.

5. When the matter was taken up on July 12, 2021, it was submitted on behalf of the Election Commission that in terms of a circular prevailing from the year 1966, the Election Commission would not institute criminal action in respect of the matters complained of by the petitioner and it would be open to the person who perceived any wrong to have been committed to pursue the matter in accordance with law.

6. Such submission on behalf of the Election Commission necessitated the Court to observe on July 12, 2021 that it was disturbing that the Election Commission would take no action even when it was brought to the notice of such Commission that a candidate had furnished false information or filed a false affidavit or had concealed material information, when such candidate was obliged to truthfully make the fullest disclosure.

7. It appeared to be an anomaly to this court that the constitutional watchdog, exclusively tasked with the job of overseeing Parliamentary and Assembly elections, would turn a blind eye to allegations of false declarations or false affidavits filed before it by a candidate contesting such an election. It seemed completely inappropriate to the Court that the Election Commission would take no steps to ensure the purity and sanctity of the election process or attempt to bring about transparency in how elections were funded.

8. It is now submitted on behalf of the Election Commission that in terms of a more recent circular of September 16, 2020, when anomalies in affidavits filed by a candidate are brought to the notice of the Commission, the Commission would "take cognizance of complaints, which indicate serious omission/commission on the part of the candidate, and refer such matters to the relevant investigating authorities on a case-to-case basis."

9. At a Parliamentary or Assembly election, every candidate at every constituency has to file an affidavit in Form 26 along with the nomination papers. Such affidavit, inter alia, requires the candidate to disclose information pertaining to the candidate's criminal antecedents; assets and liabilities; and, educational qualifications. Section 125-A of the Representation of the People Act, 1951, which was inserted by w