In a significant development from the Bombay High Court on Monday, Justice R.I. Chagla declined to throw out an election petition that challenges the victory of Thane MP Naresh Ganpat Mhaske. The petition, filed by Shiv Sena (UBT) leader Rajan Vichare, alleges that Mhaske failed to disclose a past criminal conviction in the mandatory election affidavit, known as Form 26.
The order came on two applications by Mhaske and another respondent, both seeking dismissal of the petition at the threshold stage. The bench, however, refused to oblige and cleared the way for a full-fledged trial.
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Background
The controversy revolves around the disclosure of criminal antecedents in nomination affidavits - a requirement meant to help voters make informed choices. According to the petitioner, Mhaske had been convicted by a Thane court in 2016, and his appeal was dismissed in 2017. Despite this, he allegedly ticked "Not Applicable" in the section on convictions in Form 26 while contesting the 2024 Lok Sabha polls from Thane.
Mhaske's legal team, led by senior advocate Vikram Nankani, argued that because he was released on probation without imprisonment, the conviction did not need to be disclosed.
"Only convictions with at least one year of jail term must be reported. My client had no such sentence," Nankani submitted, while also contending that the petition lacked material facts and was politically motivated.
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Court's Observations
Justice Chagla spent a considerable portion of the judgment dissecting the legal framework behind Form 26. The court noted that Section 33A of the Representation of the People Act, 1951, requires disclosure of convictions where the punishment is one year or more. But it also pointed out that the Election Commission has, over time, widened the scope of disclosures to serve the voters’ right to know.
The bench observed,
Right to information about candidates flows from Article 19(1)(a). Courts have consistently held that any suppression relating to criminal antecedents could amount to undue influence on voters," the order said.
On the question of whether the petition disclosed enough "material facts" to survive, the court sided with the petitioner’s counsel, senior advocate Darius Khambata. He argued that whether the non-disclosure amounts to corrupt practice cannot be decided without evidence. The court agreed, remarking that at this stage, it could not test the veracity of allegations.
Importantly, the bench underlined that striking off a petition at the outset is an exceptional step.
"An election petition can be dismissed at the threshold only if it suffers from an incurable defect like absence of cause of action," Justice Chagla noted, citing earlier Supreme Court precedents.
The Decision
Holding that the petition did indeed make out a prima facie case, the court rejected both applications filed under Order VII Rule 11 of the Civil Procedure Code. As a result, the election petition challenging Mhaske's victory will now proceed to trial.
"The issues raised go to the root of electoral integrity and cannot be brushed aside at the threshold," Justice Chagla concluded.
With this ruling, the Thane election dispute is set to enter the trial stage - a rare occurrence in Indian politics, where most such petitions fizzle out early.
Case Title: Rajan Baburao Vichare v. Naresh Ganpat Mhaske & Ors.
Case Number: Election Petition No. 3 of 2024
