Gautam Gambhir first dabbled in electoral politics back in 2014, when he campaigned for BJP’s long-time strategist and first-time Lok Sabha candidate from Amritsar, Arun Jaitley.
Painted as a ‘parachute candidate’ by his rival Captain Amarinder Singh, Jaitley was unable to shake the image of an outsider despite being a seasoned politician and eventually lost.
In 2019, Gautam Gambhir finds himself campaigning for yet another ‘parachute candidate’ fielded by the BJP in East Delhi: Gautam Gambhir.
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For its part, the Opposition is counting on Gambhir’s lack of political experience to outshine his newfound political celebrity. From highlighting his eleventh-hour candidacy to his weak grasp over local issues in his constituency, few stones remain unturned.
And yet, perhaps the most amount of damage to Gambhir’s Lok Sabha prospects – electorally and legally – has come from a series of inexplicable acts and unforced errors by the party and Gambhir himself.
As a result, the following pending and impending legal challenges may eventually nullify Gambhir’s election to the Lok Sabha, even if the electorate votes him into power.
Two Complaints Alleging Three Violations
As of now, two complaints have been filed against Gambhir that have the potential to disqualify him from retaining a seat in parliament, should he win it.
The first complaint was filed by AAP candidate Atishi in Tis Hazari courts, alleging that Gambhir made false declaration(s) in his poll affidavit in order to conceal that he is illegally registered in two electoral constituencies.
The complaint requests the magistrate to order a police investigation into the episode. Ideally, this will be a two-step investigation into two separate offences.
- Illegal Voter Registration
A cursory examination of the present electoral records uploaded online by the Election Commission does indeed show that Gambhir is registered in at least 2 constituencies: Rajinder Nagar and Karol Bagh.
The Representation of the People Act, 1950 lays down the legal framework in this regard. Section 17 read with Section 31 of the Act make it a criminal offence to conceal information or provide false statements in an effort to register on the electoral roll of more than one constituency.
Thus, the mere fact of double registration is not enough to establish a crime (it would still be a statutory violation). It has to be shown that false information was provided, or that some information pertaining to existing electoral registration was concealed by the accused, while applying for registration a second time. This falsification/concealment can be intentional or due to gross negligence on part of the accused.
First and foremost, however, it has to be established the accused knew or was aware that he was already registered in one constituency while applying a second time.
In this regard, Gambhir’s camp initially sought to squarely put the blame on the Election Commission, stating that it was a mere administrative error on its part and a clarification would be duly issued by the EC.
Such a clarification has not come at the time of writing.
Instead, statements issued by BJP’s OP Sharma to the Navbharat Times and Delhi spokesperson Harish Khurana to ToI indicate that Gambhir was not only aware of his prior registration in Karol Bagh but also too busy to take steps to apply for cancellation of the first registration.
These are appalling admissions and one wonders if all is well in Gambhir’s camp, or whether the entire legal team is sleeping on the job.
Gambhir’s knowledge of prior registration aside, being too busy to fulfil a legal obligation is not much of a legal or moral defence. It’s a bad look for a celebrity candidate who is projecting himself as a law-abiding citizen intent on serving the country dutifully as a Lok Sabha MP.
More importantly, the whole defence of “too busy to bother” is a non-starter.
There is only one way to apply for shifting of an electoral constituency or filing for first-time registration: Form 6 issued by the EC. Form 6 must be filled out in its entirety and requires the voter to expressly declare whether he has knowledge of prior registration. It then requires the voter to provide details of such prior registration, if any, presumably so that the EC can move to cancel the same.
As a cherry on top, Form 6 makes it clear that making a false statement or declaration in this regard is a punishable offence under Section 31. This isn’t even fine print.
Therefore, a cursory investigation of Form 6 submitted by Gambhir for the second registration will clearly establish where the error lay. If the form indicates that Gambhir did in fact disclose prior registration, then the error is indeed on part of the Election Commission. If not, then Gambhir more or less fulfils the criteria for commission of an offence under Section 31 since he was personally aware of prior registration in Karol Bagh.
- Falsification of the Poll Affidavit and Nomination Paper
The second offence complained of by AAP’s Atishi is regarding falsification of the poll affidavit and nomination papers. Sections 125A read with 33 and 33A of The Representation of the People Act, 1951 make it a criminal offence to provide false information or conceal information in the poll affidavit and nomination papers.
That said, it is unclear whether these documents require a candidate to disclose the fact of double voter registration.
The pro forma of nomination paper does not expressly ask this question or provide space to the candidate to fill in details of double registration. However, the affidavit does not have any such constraints on what the candidate may or may not disclose.
It can be argued that Section 33A(2) provides guidance on what to is to be minimally included in the affidavit (details of prior criminal convictions and records etc.), but doesn’t exhaust the candidates list of intended disclosures.
Moreover, the candidate is also given an opportunity at the time of scrutiny of nomination papers to come clean with regard to any other details that might be relevant to his nomination. In fact, valid/legal voter registration is certainly a requirement for a valid nomination under Section 4 and registration papers not disclose in the nomination must be shown to the scrutiny officer under Section 33(5) of the Act.
Taken together, it is certainly arguable that Gambhir, who was likely aware of his double registration, should have disclosed this fact during the various opportunities at the time of nomination. Instead, it is likely that he only showed papers concerned with his second registration in Rajinder Nagar.
- Holding a rally without permission
To add to Gambhir’s woes, on 27 March 2019, the Delhi Police has also registered a case under Sections 28/100 of the Delhi Police Act which gives the force special powers to make regulations for preservation of public order. One such regulation, which the EC alleges Gambhir has flouted, concerns obtaining permissions to hold rallies. It is alleged that Gambhir held a rally in Jangpura on 25 March without obtaining requisite permissions.
Conclusion
In today’s electoral zeitgeist, it remains to be seen how far these complaints are taken or whether the tag of a ‘parachute candidate’ will hurt Gambhir’s chances.
After all, if 2014 was the dawn of a new age of ultra-advertorial celebrity politics a la the Modi Wave, 2019 is its apotheosis. In this era, politicians curate their public image as carefully as pop-culture icons and pop-culture icons like Gautam Gambhir increasingly deploy their social capital to dabble in politics.
Helped along by a media environment that prioritises cashing in on celebrity over questioning it, all manner of candidates have been put forward to seize the electorate’s attention. While it would be obtuse to outrightly reject such entrants as bad for governance, one need only read this piece to get a sense of the political enlightenment of our winning celebrity candidates.
Despite this celebrity culture, BJP’s Gautam Gambhir and his election team haven’t helped their own cause in projecting Gambhir as politically or legally astute. If there is a measure of truth in the complaints filed against him, Gambhir’s potential stint as an MP is likely to be bogged down by a series of criminal investigations and election petitions seeking his disqualification on grounds of an invalid nomination.
At a minimum, it fans the fires which illuminate the fact that his candidacy is more to do with the shock value of hoisting a celebrity a candidate than a political know-how.
But as Gambhir’s Twitter pulpit and reams of on-field cricket footage will testify, he is no stranger to controversy and relishes a fight, political or otherwise. The question is, who is he fighting: The enemy beyond or the one within?
(Manu Chaturvedi is a Delhi-based lawyer.)
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