From the Right to Know to the Right to Prosecute: How a Deliberate Silence in Section 195 Hands the Voter a New Power

A Silence Parliament Chose: Why the Voter Can Now Prosecute a False Affidavit

The case turns on what Section 195 of the Code of Criminal Procedure does not say. That section lists offences a court may take up only on a complaint from a public servant. Section 125A of the Representation of the People Act, the offence of lying in an election affidavit, is not on that list.

In Rajkumar Madki v. Dr. Shailendra Beldale (16 October 2026), the Supreme Court held that the omission is deliberate and that any voter can now set criminal law in motion.

The rule as written:

a gap Parliament left open twice - Section 125A punishes a candidate who gives false information or hides information in nomination papers. The penalty is up to six months in jail, a fine or both. It opens with a non-obstante clause, so it applies notwithstanding any other law.

• Section 195 CrPC (now Section 215 BNSS) restricts courts from taking cognisance of certain offences against public justice unless a public servant complains in writing. Section 125A entered the statute in 2002. Section 195 was amended in 2006 and Parliament did not add 125A to its protected list. Justice Dipankar Datta's reasoning is simple: if Parliament wanted only officials to prosecute false affidavits, it had the chance and did not take it. No statute requires a 125A complaint to come from a public servant, so no court is barred from hearing a private one. The Court also cut the Election Commission's administrative guidance down to size. A June 2020 press note said the Commission would refer serious cases case by case. That note, the Court held, cannot narrow what the statute permits.

The rule as practised:

from the right to know to the right to enforce This is the next step in a line of cases that began with disclosure:

• ADR (2002) made a candidate's criminal, financial and educational background part of the voter's right to know under Article 19(1)(a), the freedom of speech and expression.
• PUCL (2003) struck down Parliament's attempt, through Section 33B, to dilute that disclosure.
• Madki (2026) now gives the same voter the means to act when the disclosure is false. Disclosure without enforcement was an honour system. Madki adds an enforcer from outside the state.

Where the

gap between text and practice remains Two limits stop this from being a revolution.

• The penalty is weak. Six months makes Section 125A a minor offence for a determined candidate. No consolidated official record of 125A prosecutions has been found, which suggests the provision has rarely been tested.
• The risk of harassment is real and the Court handed it to magistrates. The Madki case itself shows the filter at work. The Court rejected the High Court's reasoning but refused to revive the complaint, because the documents on record prima facie rebutted the address allegation.