Introduction

A false affidavit is one in which a person signs it and swears that the statements attested to in
the document are true, complete, and accurate when the statements are in fact misleading or
false. Submitting a false affidavit is a criminal offense and constitutes perjury in most
jurisdictions. The consequences of writing a false statement often include a fine, jail time, or
both. A legal defence that a defendant may raise is that the affidavit was retracted prior to the
plaintiff substantially relying on the affidavit and prior to the discovery of the false affidavit.
The court often holds a hearing on claims a false affidavit was submitted to the court or
during an out-of-court transaction to determine whether a crime was committed and the
appropriate punishment.

An affidavit is a statement in writing made under oath. It is usually made before a sworn
court official, magistrate, or notary public. Some court filings require affidavits, such as in
cases where there is a request for a deposition examination. The person signing the affidavit
is called the deponent. The Code of Civil Procedure under Order XIX, section 139 deals
elaborately with affidavit.

The plaintiff often has to prove six elements in a case involving a false affidavit. To begin
with, the plaintiff has to show that she swore an oath before an officer of the court or other
person and that the affiant signed the document intending it to be accepted as true. Then the
plaintiff must show that the plaintiff wilfully stated that all statements contained in the
affidavit were true when the affiant intended it to be false. The material contained in the false
statement must often be shown to be material such that reliance upon the affidavit results in
damages to the plaintiff and that the plaintiff was aware that he was under oath when signing
the affidavit. Finally, the plaintiff often has to prove that the defendant had the intent to
falsify the affidavit when the plaintiff knew she was under oath.

A defendant often is not guilty of a crime if he believes that the statements attested to in the
affidavit are true. Affidavits include a general statement that the statement is true to the best
of the affiant’s knowledge, and there may be cases where the defendant’s beliefs contradict
the facts. Another legal defence that is often available to the defendant is a retraction of the
affidavit. The defendant is often not guilty of perjury as long as the plaintiff did not rely on
the affidavit in a significant way and the false affidavit is retracted prior to it being
discovered. Evidence needs to provide beyond the testimony of the plaintiff to overcome
legal defences raised by the defendant.

Affidavit in Election
One point is very important for the politician for standing for an election that is transparency.
He should disclose all information that is required to be disclosed to the public. The public
has to know the candidate for whom they are going to vote for. They need to trust the person
so that they know they are not electing someone who is fraud. Only making promises
regarding their conditions, health etc. would not help in making them sway towards you.
Their trust & belief will lead them to vote.

Non-Disclosure of any vital point if released later will create mistrust in the mind of people
who have voted for and the person might lose support of them in future.

In Common Cause case1, the Court dealt with an issue that elections that are held in India was
fought with the help of black money and collecting black money would become easier if they
win which in turn will help them in re-election. So if in the affidavit the candidate reveals all
the personal information about his funds it will be easier for the voters to know about it and
decide whom they want to vote for and not elect law breakers. The Supreme Court states that
the voters have the fundamental rights to know about the candidates who are standing for
election as it is very significant in the democracy in India.

In the case of Union of India v Association for Democratic Reforms and Another2, the
screening of candidates resulted in huge opposition among the general public and the
concerned parties had to remove the candidates with a criminal record. Due to huge pressure
from the general public in Andhra Pradesh the parties prevented themselves from nominating
candidates with criminal record.

The Apex court reasonably said that the voters have a fundamental right to know about the
criminal and financial records of the politicians.

1
(1996) 2 SCC 752
2
(2002) 5 SCC 294
Election Commission notification on June, 2002 made it mandatory for the politicians to
disclose their Criminal Records which included Convictions, charges that are pending and
case that are taken cognizance, Financial Records which includes assets, liabilities and dues
from the public financial institution of election candidate, spouse and family member.

The Union Government drafted an Ordinance with provisions which violated Article 19(1) of
the Constitution, decree on fundamental rights. On Aug 16 2002, the same ordinance was
recommended to the President of India for approval and also on the same day the citizens and
activists requested the President to refer the flawed ordinance to Supreme Court under Article
143 due to its unconstitutional nature.

The point that has to be noted here is that the Government with support of major political
parties was not in favour of making the mandatory disclosure of information of the candidates
standing for election that is criminal and financial records. The President returned back the
ordinance to the government which was not at all surprising but the cabinet returned it back
to the President without making any changes so the President didn’t have any choice but to
pass the ordinance. Later on Parliament made the amendment to the Representation of Act
and included the intentions of the Government in law.

In Union of India vs. Association for Democratic Reforms and Another3, it was held that
Citizens have a right to know about public functionaries and candidates for office, including
their assets and criminal and educational backgrounds, which right is derived from the
constitutional right to freedom of speech and expression. When the legislature is silent on a
particular subject and an entity (in this case, the Election Commission) has been granted
implementation authority with respect to such subject, the Court assumes that the entity has
the power to issue directions or orders to fill such a void until a suitable law on the subject is
enacted.

Thus the Parliament cannot prevent the candidate from knowing about the candidates.
The court directed that the following information should be revealed by the candidates for
the public all convictions, Charges framed, Cases of which cognizance was taken should be

3
(2002) 5 SCC 294
revealed. The law also made this mandatory for the candidates to disclosure about the
following the candidates will now have to reveal all criminal record as per Supreme Court
judgment and Election Commission notification.

Candidates have to disclose statement of assets immovable, movable, bank balances,

liabilities, and dues to public financial institutions in respect of themselves, spouses and
members of their families. Disclosure of educational qualifications was also made mandatory.

The Election Commission of India has asked the Presidents or Chairmen or general
secretaries of recognized national and state political parties to ask their candidates to also
disclose their assets which will include details of their accounts in foreign banks, possession
of properties or investment overseas along with loans and liabilities so the voters know the
financial conditions and know the source of income outside the country in the affidavit that
are outside India, if any.

Sources of income & their utilization which could be check by the income tax department
also including art of Register of Interest. The information should include these details
Name of companies with controlling shareholding interest, Directorship in various trusts and
companies. The candidate has to give information about pending cases in which cognizance
has been taken by a Court. Educational qualifications, Annual Income of the candidate for his
profession and tax purpose.

In terms of Section 33A of the Representation of the People Act, 1951, read with Rule 4A of
Conduct of Election Rules, 1961, each candidate has to file an affidavit in Form 26 appended
to the Conduct of Election Rules, 1961, giving information on the following: – All the cases
for an offence other than the offences mentioned in the TP Act of People 1951 and have been
sentenced for one year or more. Convictions involving a sentence of one year or more, and
Pending charges (framed by a magistrate) entailing a sentence of imprisonment of two years
or more.
False Declaration Of Assets In Affidavit Election Liable To Be Cancelled
Non-disclosure or false disclosure in Affidavit will clearly be a ground for rejection of
nomination. Section 100 of Representation of People’s Act states the grounds for declaring
election to be void. It states subject to the provisions of sub-section (2) if the High Court is
of opinion that the result of the election, in so far as it concerns a returned candidate, has
been materially affected by the improper acceptance or any nomination, or by any corrupt
practice committed in the interests of the returned candidate by an agent other than his
election agent, or by the improper reception, refusal or rejection of any vote or the reception
of any vote which is void, or by any non—compliance with the provisions of the Constitution
or of this Act or of any rules or orders made under this Act,

Section 125A of the Act states the penalty for filing false affidavit, etc. A candidate who
himself or through his proposer, with intent to be elected in an Election, when fails to furnish
information relating to sub-section (1) of section 33A; or give false information which he
knows or has reason to believe to be false; or 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.

Section 8(1)(i) of Representation of the People’s Act 1951 states a person convicted of an
offence punishable under Section 125 (offence of promoting enmity between classes in
connection with the election) or section 135 (offence of removal of ballot papers from polling
stations) or section 135A (offence of booth capturing) of clause (a) of sub-section (2) of
section 136 (offence of fraudulently defacing or fraudulently destroying any nomination
paper) of this Act shall be disqualified.

In KrishnaMoorthy v Sivakumar and Others4 Election Criminal antecedents , Non-

disclosure thereof, Undue Influence, Corrupt practice, Impugned order confirmed that
nomination papers filed by Appellant deserved to be rejected and, therefore, he could not
have contested election, and accordingly, declared election as null and void and ordered for

4
MANU/SC/0108/2015
re-election of post of President in question. Hence, appeal - Whether candidate who did not
disclose criminal cases in respect of heinous or serious offences or moral turpitude or
corruption pending against him would tantamount to undue influence and as fallout to corrupt
practice. Held, election of elected candidate could only be declared null and void regard
being had to grounds provided in statutory enactment and ground of undue influence was part
of corrupt practice. While filing nomination form, if requisite information, relating to
criminal antecedents, was not given, indubitably, there was attempt to suppress, effort to
misguide and keep people in dark. Disclosure of criminal antecedents especially, pertaining
to heinous or serious offence or offences relating to corruption or moral turpitude at time of
filing of nomination paper as mandated by law was categorical imperative.When there was
non-disclosure of offences pertaining to areas mentioned in preceding clause, it created
impediment in free exercise of electoral right. Concealment or suppression deprived voters to
make informed and advised choice as consequence of which it would come within
compartment of direct or indirect interference or attempt to interfere with free exercise of
right to vote by electorate, on part of candidate. Non-disclosure would amount to undue
influence and, therefore, election was to be declared null and void.

5
In Kisan Shankar Kathore vs Arun Dattatray Sawant and Others If the Election Tribunal
finds that the candidate had suppressed material information in the affidavit filed along with
the nomination, election will be set aside. Non disclosure of material information in the
affidavit is a valid ground for setting aside election. Appellant was an elected candidate to the
Legislative Assembly. His election was challenged by a voter who contended that material
information relating to dues to the Maharashtra State Electricity Board and details of movable
and immovable property of candidate's wife were suppressed by the candidate in the affidavit
filed along with the nomination and hence, the Returning Officer should not have accepted
the nomination. High Court accepted the contention and set aside the election. Returned
candidate took appeal to the Supreme Court contending that there was substantial compliance
insofar as he had added the value of the properties of his wife along with that of his own and
that the amount due to MSEB is in dispute and hence, it was not revealed. Apex Court held
that once it is found that the facts omitted to be mentioned in the affidavit is material
information; the Court will have to set aside the election on the ground that the Returning
Officer should not have accepted the nomination. At the same time, the Court held that

5
[2014] Insc 263 (9 May 2014)
returning officer cannot go into the question of suppression of material information at the
time of scrutiny and the examination regarding suppression of material information can be
undertaken only in an election petition. Dismissing the appeal, the Court held when the
information is given by a candidate in the affidavit filed along with the nomination paper and
objections are raised thereto questioning the correctness of the information or alleging that
there is non-disclosure of certain important information, it may not be possible for the
Returning Officer at that time to conduct a detailed examination. Summary enquiry may not
suffice. Present case was itself an example which loudly demonstrates this. At the same time,
it would not be possible for the Returning Officer to reject the nomination for want of
verification about the allegations made by the objector. In such a case, when ultimately it is
proved that it was a case of non-disclosure and either the affidavit was false or it did not
contain complete information leading to suppression, it can be held at that stage that the
nomination was improperly accepted. The counsel appearing for the Election Commission,
right argued that such an enquiry can be only at a later stage and the appropriate stage would
be in an election petition as in the instant case, when the election is challenged. The grounds
stated in Section 36(2) are those which can be examined there and then and on that basis the
Returning Officer would be in a position to reject the nomination. Likewise, where the blanks
are left in an affidavit, nomination can be rejected there and then. In other cases where
detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition,
as to whether the nomination was properly accepted or it was a case of improper acceptance.
Once it is found that it was a case of improper acceptance, as there was misinformation or
suppression of material information, one can state that question of rejection in such a case
was only deferred to a later date. When the Court gives such a finding, which would have
resulted in rejection, the effect would be same, namely, such a candidate was not entitled to
contest and the election is void. Otherwise, it would be an anomalous situation that even
when criminal proceedings under Section 125A of the Act can be initiated and the selected
candidate is criminally prosecuted and convicted, but the result of his election cannot be
questioned. This cannot be countenanced.

In Resurgence India vs. Election Commission of India and Another6, entails Elections,
Affidavits by contestants, Mandatory requirements, Compliance thereof. Whether directions
to reject nominations for filing false or incomplete information in affidavits could be issued

6
AIR 2014 SC 344
The Petitioner-organization made a representation to the Election Commission of India
regarding large number of non-disclosures in the affidavits filed by the contestants in the
State of Punjab and poor level of scrutiny by the Returning Officers. Vide letter dated
20.02.2007, the Election Commission of India expressed its inability in rejecting the
nomination papers of the candidates solely due to furnishing of false or incomplete
information in the affidavits. Being aggrieved of the same, the Petitioner organization has
preferred this petition for the issuance of a writ of mandamus to make it compulsory for the
Returning Officers to ensure that the affidavits filed by the contestants should be complete in
all respects and to reject those nomination papers which are accompanied by incomplete or
blank affidavits. The Petitioner organization also prayed for deterrent action against the
Returning Officers in case of acceptance of such incomplete affidavits in order to remove
deficiencies in the format of the prescribed affidavit. Held, while disposing off the Petition,
the voter has the elementary right to know full particulars of a candidate who is to represent
him in the Parliament or Assemblies and such right to get information is universally
recognized. Thus, it is held that right to know about the candidate is a natural right flowing
from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.
The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the
fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The
citizens are supposed to have the necessary information at the time of filing of nomination
paper and for that purpose; the Returning Officer can very well compel a candidate to furnish
the relevant information. Filing of affidavit with blank particulars will render the affidavit
nugatory. It is the duty of the Returning Officer to check whether the information required is
fully furnished at the time of filing of affidavit with the nomination paper since such
information is very vital for giving effect to the right to know of the citizens. If a candidate
fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper
is fit to be rejected. Thus, ratio decidendi is if Election Commission accepts nomination
papers in spite of blank particulars in affidavits, it will directly violate fundamental right of
citizen.
False Affidavit Due To Lack of Knowledge

Order XI of the Supreme Court Rules 1966 deals with affidavits. Rule 5 of Order XI is a
virtual replica of Order XIX Rule 3 (1)7. Order XI Rule 5 of the Supreme Court Rules is
therefore set out: Affidavits shall be confined to such facts as the deponent is able of his own
knowledge to prove, except on interlocutory applications, on which statements of his belief
may be admitted, provided that the grounds thereof are stated.

A Three Judges Bench of the Supreme Court in Avtar Singh vs. Union of India8, has
summarized the principles to be followed by Employers while dealing with issues related to
suppression of information or submitting false information in the verification form by
employees or candidates as to the question of having criminally prosecuted arrested or as to
the pendency of criminal case. Since the people who elect their representatives are apparently
the employers the guidelines issued by the Supreme Court becomes essential.

In case there is suppression or false information of involvement in a criminal case where

conviction or acquittal had already been recorded before filling of the affidavit and such fact
later comes to knowledge of employer, any of the measures could be taken. If acquittal had
already been recorded in a case involving moral turpitude or offence of heinous or serious
nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable
doubt has been given, the employer may consider all relevant facts available to antecedents
and cannot be compelled to appoint candidature.

It is a settled proposition of law that where an applicant gets an office by misrepresenting the
facts or by playing fraud upon the competent authority, such an order cannot be sustained in
the eyes of law. "Fraud avoids all judicial acts, ecclesiastical or temporal." 9 In Lazarus
Estate Ltd. v. Besalay10, the Court observed without equivocation that "no judgment of a
Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for
fraud unravels everything."

7
http://www.legalblog.in/2011/05/affidavits retrieved on 20/6/2017 at 3 p.m.
8
(2016) 8 SCC 389
9
S.P. Chengalvaraya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. & Ors., AIR 1994 SC 853
10
1956 All E.R. 349
In Andhra Pradesh State Financial Corporation v. M/s. GAR Re- Rolling Mills & Anr.11, the
Court has observed that a writ Court, while exercising its equitable jurisdiction, should not
act to prevent perpetration of a legal fraud as Courts are obliged to do justice by promotion of
good faith. "Equity is, also, known to prevent the law from the crafty evasions and subtleties
invented to evade law."

In Smt. Shrisht Dhawan v. M/s. Shaw Bros.12, it has been held as under "Fraud and collusion
vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a
concept descriptive of human conduct."

In United India Insurance Company Ltd. v. Rajendra Singh & Ors.13, the Court observed that
"Fraud and justice never dwell together"

In Ram Chandra Singh v. Savitri Devi & Ors.14, the Court held that "misrepresentation itself
amounts to fraud", and further held "fraudulent misrepresentation is called deceit and consists
in leading a man into damage by will fully or recklessly causing him to believe and act on
falsehood. It is a fraud in law if a party makes representations which he knows to be false,
and injury ensues there from although the motive from which the representations proceeded
may not have been bad."
The ratio laid down by the Supreme Court in various cases is that dishonesty should not be
permitted to bear the fruit and benefit those persons who have frauded or misrepresented
themselves. In such circumstances the Court should not perpetuate the fraud by entertaining
petitions on their behalf.

In Union of India & Ors. v. M. Bhaskaran15, this Court, after placing reliance upon and
approving its earlier judgment in District Collector & Chairman, Vizianagaram Social
Welfare Residential School Society v. M. Tripura Sundari Devi 16, observed as under "If by
committing fraud any employment is obtained, the same cannot be permitted to be

11
AIR 1994 SC 2151
12
AIR 1992 SC 1555
13
AIR 2000 SC 1165
14
AIR 2004 SC 4096
15
AIR 1996 SC 686
16
(1990) 3 SCC 655
countenanced by a Court of Law as the employment secured by fraud renders it voidable at
the option of the employer."

In Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar17, the Court
examined the similar case where the appointment was refused on the post of Police Constable
and the Court observed as under: "It is seen that verification of the character and antecedents
is one of the important criteria to test whether the selected candidate is suitable to a post
under the State. Though he was found physically fit, passed the written test and interview and
was provisionally selected, on account of his antecedent record, the appointing authority
found it not desirable to appoint a person of such record as a Constable to the disciplined
force.

The view taken by the appointing authority in the background of the case cannot be said to be
unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for
reconsideration of his case. Though he was discharged or acquitted of the criminal offence,
the same has nothing to do with the question. What would be relevant is the conduct or
character of the candidate to be appointed to a service and not the actual result thereof. If the
actual result happened to be in a particular way, the law will take care of the consequence.
The consideration relevant to the case is of the antecedents of the candidate. Appointing
authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him
to the service.

In Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav18, the Court examined a similar case,
wherein, employment had been obtained by suppressing a material fact at the time of
appointment. The Court rejected the plea taken by the employee that the Form was printed in
English and he did not know the language, and therefore, could not understand what
information was sought. The Court held that as he did not furnish the information correctly at
the time of filling up the Form, the subsequent withdrawal of the criminal case registered
against him or the nature of offences were immaterial. "The requirement of filling column
Nos. 12 and 13 of the Attestation Form" was for the purpose of verification of the character
and antecedents of the employee as on the date of filling in the Attestation Form. Suppression

17
(1996) 11 SCC 605
18
AIR 2003 SC 1709
of material information and making a false statement has a clear bearing on the character and
antecedent of the employee in relation to his continuation in service.

In State of Haryana & Ors. v. Dinesh Kumar19,this Court held that there has to be a
deliberate and wilful misrepresentation and in case the applicant was not aware of his
involvement in any criminal case or pendency of any criminal prosecution against him, the
situation would be different.

In Secretary, Department of Home, A.P. & Ors., v. B. Chinnam Naidu20, the Court held that
facts are to be examined in each individual case and the candidate is not supposed to furnish
information which is not specifically required in a case where information sought dealt with
prior convictions by a criminal Court. The candidate answered it in the negative; the court
held that it would not amount to misrepresentation merely because on that date a criminal
case was pending against him. The question specifically required information only about
prior convictions.

In R. Radhakrishnan v. Director General of Police & Ors.21, , this Court held that furnishing
wrong information by the candidate while seeking appointment makes him unsuitable for
appointment and liable for removal or termination if he furnished wrong information when
the said information is specifically sought by the appointing authority.

In the Devendra Kumar Vs. State of Uttaranchal & Ors.22, the High Court has placed
reliance on the Govt. Order dated April 28, 1958 relating to verification of the character of a
Government servant, upon first appointment, wherein the individual is required to furnish
information about criminal antecedents of the new appointees and if the incumbent is found
to have made a false statement in this regard, he is liable to be discharged forthwith without
prejudice to any other action as may be considered necessary by the competent authority. The
purpose of seeking such information is not to find out the nature or gravity of the offence or
the ultimate result of a criminal case, rather such information is sought with a view to judge
the character and antecedents of the job seeker or suitability to continue in service.
Withholding such material information or making false representation itself amounts to moral
19
AIR 2008 SC 1083
20
(2005) 2 SCC 746
21
AIR 2008 SC 578
22
(2013) 9 SCC 363
turpitude and is a separate and distinct matter altogether than what is involved in the criminal
case.

Conclusion
The courts have recorded a finding of fact that the appellant suppressed material information
sought as to whether he had ever been involved in a criminal case. Suppression of material
information sought or furnishing false information itself amounts to moral turpitude and is
separate and distinct from the involvement in a criminal case.