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An Analysis On The Offences Relating To Elections

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RAJIV GANDHI NATIONAL UNIVERSITY OF LAW


PATIALA, PUNJAB.

PROJECT REPORT

AN ANALYSIS ON THE OFFENCES RELATING TO ELECTIONS

SUBMITTED IN THE PARTIAL FULFILMENT OF IX SEMESTER


AS REQUIREMENT OF FIFTH SEMESTER

Submitted to:
Dr. Sachiv Kumar
&
Mr. Gurneet Singh
Submitted By:
Subhaprad Mohanty (242)
(Asst. Prof. of Law)

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An Analysis On The Offences Relating To Elections

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ACKNOWLEDGEMENT
The design, implementation and completion of this study would have been impossible
without the help and contribution of the talented student body and faculty of Rajiv Gandhi
National University of Law, Patiala, Punjab.
I am really grateful to Dr. Sachiv Kumar and Mr. Gurneet Singh for their continuous support
for the project, from initial advice and contacts in the early stages of conceptual inception,
and through ongoing advice and encouragement to this day. They were instrumental in
conceptualization of this study.
Last but not least, I want to thank our friends who appreciate us for our work and motivated
us.
With Loving regards and thanks to all, including those contributors whose names have not
been mentioned here.

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TABLE OF CONTENTS
I.
II.
III.
IV.
V.
1.

2.

3.

4.
5.
6.
7.
8

ACKNOWLEDGEMENT........i
TABLE OF CASES........iii
LIST OF CASES...vii-viii
LIST OF ABBREVIATIONS....ix-x
REVIEW OF LITERATURE...1-40
INTRODUCTION.1-4
1.1. Meaning of Elections...1-2
1.2. Democracy and Elections....2-3
1.3. Criminalization of Politics...3-4
CONSTITUTIONAL COMMITMENTS.....5-11
2.1. Franchise in India.....5-6
2.2. Right to know as a Fundamental Right....6-7
2.3. Constitutional Foundation of Free and Fair Elections...7-11
PROVISIONS IN IPC, 1860...12-17
3.1. Overview of Chapter IX A...12-12
3.2. Scope of Chapter IX A.12-13
3.3. Candidate and Electoral Right.13-13
3.4. Specific Offences.13-17
PROVISIONS IN REPRESENTATION OF PEOPLE ACT, 1951.18-30
4.1. Corrupt Practices..18-22
4.2. Electoral Offences22-30
ELECTION COMMISSION ON ELECTORAL OFFENCES..31-33
5.1. Model Code of Conduct..31-32
5.2. Proposed Electoral Reforms....32-33
SUGGESTIONS.34-38
6.1. Needed Reform in IPC, 1860..34-36
6.2. Needed Reform in RPA, 1951.....36-38
CONCLUSION...39-40
BIBLIOGRAPHY...41-42
REMARKS...43

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TABLE OF CASES

Sr. No.

Case Name

Pg. No.

1. A.P. Hill Leaders Conference v. W.A. Sangma, AIR 1977 SC 2155.9


2. Ankul Chandra Pradhan v. Union of India, AIR 1997 SC 2814.39
3. Baburao Patel v. Dr. Zakir Hussain, AIR 1968 SC9 04......14
4. D. Sanjeevaya v. Election Tribunal, A.P. and others, AIR 1967 SC 1211....9
5. Dadasaheb Dattatraya Pawar v. Pandurang Rao Jagtap, AIR 1978 SC
351....21
6. Dinesh Prasd Yadav v. State of Biha,r 1995 Supp (1) SCC 340...1
7. Dr. Jagjit Singh v. Giani K. Singh, AIR 1966 SC 773.20
8. Dr. Ramesh Y. Prabhoo v. Prabhakar K. Kunte, (1996) 1 SCC 130...19
9. Ebrahim Suleman Sait v. M.C. Mohammad, AIR 1980 SC 354..23
10. Election Commission of India v. Union of India, (1995) Supp. (3) SCC 643....9
11. Hari Vishnu Kamath v. Ahmad Isaque, AIR 1955 SC 233....9
12. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2277...10, 22
13. K. Kamraj Nadar v. Kunju Thevar, AIR 1958 SC 687..3
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14. Kanwar Lal Gupta v. Amar Nath Chawla, AIR 1975 SC 308.21
15. Kihoto Hollohon v. Zachillu, AIR 1993 SC 4123
16. KumaraNanda v Brij Mohan Lal Sharma AIR 1967 SC 808..16
17. Mast Ram v State of Punjab, (1995) Supp 2 SCC 744.
17
18. Mohan Singh v. Bhanwarlal, AIR 1964 SC 136614
19. Mohd Kadir Sheriff v Rahmatullah, AIR 1940 Mad 230.16
20. Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851...
.....2, 8, 9, 11
21. N.B. Khare v. EC, AIR 1957 SC 694.9
22. N.P. Punnuswami v. Returning Officer, AIR 1952 SC 64.1, 9
23. Narayanaswamy Naicker v Devaraja Mudaliar, AlR 1936 Mad 316.16
24. Pantam Venkayya v. Emperar, AlR 1930 Mad 24616
25. Parthasarathi v Ramachandra Rao, AIR 1956 AP 65....15
26. Rajendra Prasad Jain v. Sheel Bhadra Yajee, AIR 1967 SC 1445.18
27. Ram Dial v. Sant Lal, AIR 1959 SC 855.14
28. Rameshwar v. State, AIR 1957 Pat 252...23
29. S Khader v. Munuswami, AIR 1955 SC 775...13
30. S.R. Bomai v. Union of India, Air 1994 SC 1918.5
31. Sashi Bhushan v. Balraj Madhok, AIR 1972 SC 1251, at p. 1256..24
32. Sharma v. B.R. Mandal, AIR 1957 M.P. 122.2
33. Shiv Kripal Singh v. VV Giri, AIR 1970 SC 2097...14
34. State of Gujarat v Chandulal Bhikala,l AIR 1965 Guj 83, (1965) Cr U 440 (Guj)
...15, 16
35. State of Orissa v GokulBarick, AIR 1959 Ori 97....16
36. Trilochan Singh v Karnail Singh, AIR 1968 Punj 416, ..14
37. Union of India v. Association of Democratic Reforms, (2202) 5 SCC
294....6, 10
38. V.V. Giri v. D.S. Dora, AIR 1959 SC 1318..4

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LIST OF ABBREVIATIONS
Sr. No.

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Abbreviation

Expansion

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&

And

AIR

All India Reporter

Anr.

Anothers

A.P.

Andhra Pradesh

Art.

Article

Bom.

Bombay

Commr.

Commissioner

Co.

Company

Cri.

Criminal

10

Raj.

Rajasthan

11

ed.

Edition

12

Govt.

Government

13

i.e.

That

14

Ltd.

Limited

15

Org.

Organization

16

Ors.

Others

17

p.

Page

18

pp.

Pages

20

RPA

Representation of
peoples Act

20

sec.

Section

21

SC

Supreme Court

22

SCC

Supreme Court Cases

23

SCJ

Supreme Court Journal

24

SCR

Supreme Court Report

25

supp.

Supplement

26

Art.

Art.

27

T.N

Tamil Nadu

28

UOI

Union of India

29

U.P.

Uttar Pradesh

v.

Versus

Vol.

Volume

30 Report
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CHAPTER I
INTRODUCTION
1.1.

Object and Purpose of Writing the Project

The topic of the present project, i.e. Critical study of Offences Relating to Elections is of
great significance in a democratic country like India. Free and Fair Elections are the basis for
subsistence of Democracy; however Electoral offences have been a great hindrance in the
working of Indian Democracy. The present project is written with the object of enhancing the
knowledge on the subject related laws in India along with an attempt to bring about the
weaknesses and defects in such laws. In the end the some of the suggestion are given which
may contribute in improving the concerned law on the subject. Thus the purpose of the study
is twofold, i.e. enhancing the knowledge on the subject from academic point of view as well
analyzing the law so as to provide some practical solutions for reforms.
1.2.

Significance of Study Undertaken

The Topic of the present project i.e. Critical Study of Offences Relating to Elections is very
significant in itself and it becomes all the more significant in a country like India, which is
infact the largest democracy of the world. Free and Fair Elections are the part and parcel of
every democracy and are essential to maintain the true spirit of a democracy. However, the
electoral offences have always been a great hindrance in the successful functioning of Indian
Democracy. Thus, the study undertaken in the present project is of great significance as it
relates to one of the common but crucial aspect of democracy. Moreover, the study is
significant, in so far as, the laws concerning the subject have been analyzed from practical
view point.
The project is an attempt to address the following issues:1.
2.
3.
4.

1.3.

What are elections and its importance in democratic setup?


What are Electoral offences and what is criminalization of politics?
What are the remedies provided in the Indian Penal Code 1860 and RPA, 1951?
What reforms are required to curb the menace of Electoral offences?

Research Methodology
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The research methodology used is doctrinal which is based on secondary data. Moreover,
analytical approach has been adopted for the study. The study is basically based on the
provisions of Indian Penal Code 1860 and the Representation of People Act, 1951
interpretation of these principles in various books, commentaries, Articles and journals.
1.4.

Meaning of Election

The word Election implies persons who are to elect (called the electors), the office to which
election is to be made and the person who is to be elected (called the candidate). 1 Broadly
speaking it means an opportunity for voters to hold elected officials accountable for their
actions or to choose between competing candidates or their policies. 2 When a person is
nominated by way of selection on the basis of the given criteria fro amongst several persons,
then in the broader sense, he is elected to the office. 3 Election is a method for drawing public
opinion. Public opinion is supposed to be the source of and guide to know what public
official or political leaders do. The democratic system requires that election contestants
should consult the public and should try to follow its mandate. So, election is a means of
telling to an elected official whether he has received a mandate from the people for his
policies. Thus, election play a key role in a democratic polity, it gives mandate to elected
members for forming the government, on obtaining their majority, control the government,
ascertain public opinion on various issues and choose law-makers periodically.
According to Websters Dictionary election means the act or process of choosing a person for
an office, position or membership by voting. Encyclopedia Britannica defines elections as the
means of making political choice by voting. They are used in the selection of leaders and in
the determination of issues.4 In the Representation of People Act, 1951 Election has been

1Abhinav Prakash, Law Relating to Elections, Universal Law Publishing Co.Pvt. Ltd., New Delhi,
2006, at p. 6
2Bryce, Modern Democracies (1921), Vol. II, p. 9, see, Anand Ballabh Kafaltiya, Democracy and
ElectionLaws, Deep and Deep Publications (P) Ltd., New Delhi, 1st ed. 2003 at p.43
3 Dinesh Prasd Yadav v. State of Bihar, 1995 Supp (1) SCC 340
4 15th ed. 1974, p. 527
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defined as an election to fill a seat or seats in either House of Parliament or in the House or
either House of the Legislature of a State.5
In the Constitution of India the term election is not defined. However, in Punnuswami v.
Returning Officer,6 the Supreme Court while interpreting the provisions of Part XV of the
Constitution which deals with elections held that the word election has by long usage in
connection with the process of selection of proper representation in democratic institutions,
acquired both a wide and a narrow meaning. In the narrow sense it is used to mean that final
selection which may embrace the result of the poll when there is polling or a particular
candidate being returned unopposed when there is no poll. In the wide sense, the word is used
to connote the entire process culminating in a candidate being declared elected. Justice Fajal
Ali in this case clearly stated that
It seems to me that the world election has been used in Part XV of the Constitution in the
wide sense, that is to say, to connote the entire procedure to be gone through to return a
candidate to the legislature. The use of the expression Conduct of elections in Art. 324
specifically points to the wide meaning and that meaning can also be read consistently into
other provisions which occur in Part XV including Art. 329(b).7
In Mohinder Singh Gill v. Chief Election Commissioner,8 Justice Krishna Iyer further
clarified the term election and held:
Election covers the entire process from the issuance of the notification under Section 14 of
the Representation of the People Act, 1951 to the declaration of result under Section 66 of the
Act. Even when a poll that has already been taken place has been cancelled and a fresh poll
has been ordered, or Election Commission amends its notification and extends time for
completion of the election, it is an order during the course of election. Even if it is a wrong
order it cannot be questioned during the process. If during the process of election at an
intermediate or final stage, the entire poll has wrongly cancelled and a fresh poll has been
5 Sec. 2(d), Representation of People Act, 1951
6 AIR 1952 SC 64
7 Ibid, at p. 67-68
8 AIR 1978 SC 851
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wrongly ordered, that is a matter which may be agitated after declaration of the result on the
basis of fresh poll, by questioning the election in the appropriate form by means of an
election petition.9
The reason giving a wide meaning to the term election is plenary. Having regard to the
important functions which the legislature has to perform in democratic countries, it has
always been recognized to be a matter of first importance that elections should be concluded
as early as possible according to time schedule and all controversies and all disputes arising
out of election should be postponed till the elections are over, so that the election proceedings
may not be unduly retarded or protracted.10
1.5.

Elections in Democracy

In a living democracy, the conferment of guaranteed fundamental and other rights to the
people is essential. There are certain freedoms which are essential for the proper functioning
of a democracy. Therefore, it is in the interest of the State that these freedoms are protected.
To ensure this, every citizen in a democracy must be free to vote and his vote must count and
be of value. Hence, the right to vote must be protected and for this purpose a democratic
government must develop just systems of representation.
Elections to the Legislature are not private affairs of the contestants. They are matters of
public interest and of national importance.11 Every citizen has a stake in legislative elections,
for his social and economic well-being depends upon the promises and the performance of
the Legislatures. Democracy needs participation of the people in the governance of the
country and this participation is possible only when every qualified citizen is given the right
of franchise to enable him to elect the representative of his choice to the Legislature.
Therefore, no right is more precious in a free country than that of having a choice in the
election of those who make laws under which the people live. Other rights even the most
basic become illusory if the right to vote is undermined. 12 However, for the successful

9 Ibid, at p. 894
10 Sharma v. B.R. Mandal, AIR 1957 M.P. 122
11 K. Kamraj Nadar v. Kunju Thevar,, AIR 1958 SC 687.
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functioning of democracy the aspect of free and fair elections is equally important like
universal suffrage.
1.6.

Criminalization of Politics

Though Free and fair Elections is the basis of Democracy and part of basic structure of
Constitution,13 but over the past few years we have been reading about corruption public life
in which politicians and officials have bled the nation filling their own coffers, diverted to
personal use. Public funds have been misappropriated and have destroyed the moral and
ethical environment of the nation. Corruption has become the norm in public life and honesty
an aberration. Corruption is an institution and it is inbuilt in the socio-economic-cultural and
political structure of society and nation.14 Daily in the news papers, there are reports about the
politicians who have either directly participated in crimes or have allegedly been guilty of
abetting such activities through gangsters, musclemen and underworld dons. Corruption in
public life and criminalization of politics are two sides of the same coin. In the early days
criminal elements were by and large kept away from direct involvement in the political
process, but today they have acquired a political base of their own. Since it is the reach of
power that determines the degree of immunity, persons with criminal antecedents have found
a way to foist themselves on the Legislature.15 It is well known that all parties take the help of
criminal elements to dominate the election scene in India,16 and thus offences relating to
elections have been repeatedly shaking the democratic roots of the country.
1.7.

Chapterization Plan

12 The Hon,ble Sir John Laws; Law and Democracy (1995), Public Law, 74, see, Anand Ballabh
Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd., New Delhi, 1st ed.
2003 at p.36
13 Kihoto Hollohon v. Zachillu, AIR 1993 SC 412
14 P. Rathnaswamy, Electoral Reforms: Law and Institutions of India and World, Book Well, New
Delhi, 2004, at p. 93
15 Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd.,
New Delhi, 1st ed. 2003 at p.344
16http://www.legalserviceindia.com/Art./l290-Criminalization-of-Politics.html, accessed on
September 7, 20- 11.
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CHAPTER I is dealing with the general introduction to the topic. It discusses the concept of
elections and criminalization of politics.
CHAPTER II deals with constitutional provisions regarding elections. It discusses various
articles of constitution which includes election commission and part XXV of constitution.
CHAPTER III deals with Penal provisions regarding electoral offences. In this chapter
section 171 of Indian Penal Code is discussed which includes offences like bribery etc.
CHAPTER IV deals with provisions of Representation of peoples Act. In this chapter
offences of Booth Capturing and other offences are explained.
CHAPTER V deals with provision of working of the Election Commission and the
suggestions and reforms given by them to curb electoral offences.
CHAPTER VI deals with Suggestions and reforms to curb the malpractices that have crept
in the process of elections.
CHAPTER VII contains Conclusion which sums up the whole project and provide solutions
to lacunas which are unprovided for.
CHAPTER II
CONSTITUTIONAL COMMITMENTS
The Preamble to the Constitution declares India to be a Democratic Republic. Democracy is
the basic feature of the Indian Constitution, 17 which is sustained by free and fair elections.
Only free and fair elections to the various legislative bodies in the country can guarantee the
growth of a democratic polity. It is the cherished privilege of a citizen to participate in the
electoral processes which place persons in the seats of power. India has been characterized as
the biggest democracy in the world because of the colossal nature of the elections held in the
country.18 At a general election, an electorate of millions goes the polls to elect members for
the Lok Sabha, State Legislative Assemblies, and the Legislatures of the Union Territories.
Free and fair election has been held to be a basic feature of the Constitution.19

17S.R. Bomai v. Union of India, Air 1994 SC 1918


18 M.P. Jain, Indian Constitutional Law, Wadhwa and Company Nagpur, New Delhi, 2003, at p. 803
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2.1. Franchise in India


A few fundamental principles underlie elections to the Lok Sabha and the State Legislative
Assemblies. These principles are stated as follows:

There is one general electoral roll for every territorial constituency.20


No person is ineligible for inclusion in the electoral roll on the grounds only of
religion, race, caste, sex or any of them.21 Equality has thus been accorded to each

citizen in the matter of franchise and the electoral roll is prepared on a secular basis.22
No person can claim to be included in any special electoral roll for any constituency
on grounds only of religion, race, caste, sex or any of them. 23

The principle

underlying this provision is further fortified by Art. 1524


Elections are held on the basis of adult suffrage, that is to say, every person who is
o A citizen of India,
o Not less than 18 years of age on a date prescribed by the Legislature,
o Not otherwise disqualified under the Constitution, or any law made by the
Legislature, on the ground of non-residence, unsoundness of mind, crime,
corrupt or illegal practice, is entitled to be registered as a voter at any such
election.25

2.2. Right to Know as a Fundamental Right


The right to know antecedents, including the criminal past, or assets of candidates is a
fundamental right under Art. 19(1) (a)26 of the Constitution and that the information is
19Kihoto Hollohon v. Zachillu, AIR 1993 SC 412
20 Art. 325, Constitution of India
21 ibid
22 V.V. Giri v. D.S. Dora, AIR 1959 SC 1318
23 Art. 325, Constitution of India
24 Absense of Discrimination
25 Art. 326, Constitution of India
26 Freedom of Speech and Expression
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fundamental for survival of democracy. Supreme Court has directed27 the Election
Commission to call for information on affidavit from each candidate seeking election to
Parliament or the State Legislature as a necessary part of the nomination papers on:

Whether the candidate has been convicted / acquitted / discharged of any criminal

offence in the past - if any,


Whether the candidate was accused in any pending case of any offence punishable
with imprisonment for two years or more, and in which charge was framed or

cognizance taken by the court of law. If so, requires the details thereof;
The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her

spouse and that of the dependents;


liabilities, if any, particularly of any overdue of any public financial institution or

Government dues;
Educational qualifications of the candidate.

The Right to Information Act 2005 is a historical Act that makes Government officials liable
for punishment if they fail to respond to people within a stipulated timeframe. Many public
servants are leading luxurious lifestyles, beyond the legal sources of their income. 28 Many
public servants are filing false affidavits about their annual income, wealth details to Election
Commission of India / Vigilance Commission / other authorities, as the case may be. These
authorities are not properly verifying these affidavits. Many scams, scandals are coming to
light day in & day out; politicians are accusing each other of involvement in scams. Whereas,
the said authorities are keeping mum, as if those affidavits filed by tainted public servants are
true. The tainted public servants are not even providing full, right information to public as per
RTI Act, lest the truth come out.
Right to Know is an inherent attribute of every person. It is a basic right of citizens of free
country and Art. 19 (1) (a) protects this right. The right to receive information springs from
the right guaranteed under 19 (1) (a). 29 Right to know differs only in one sense with right to
information. Right to know is a natural right and right to information is a provision given by
27 Union of India v. Association of Democratic Reform,s (2002) 5 SCC 294
28 http://www.legalserviceindia.com/Art./l290-Criminalization-of-Politics.html, accessed on,
September 13, 2011.
29 M.P. Jain, Indian Constitutional Law, Wadhwa and Company Nagpur, New Delhi, 2003, at p. 988
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government to its people. Natural rights do not have any value legally until they are legally
considered. Hence right to know as such implied in the freedom of speech and expression
which is a legally considered right must have to be given a special value. Right to
information as such will bring transparency of the government activities and allow the people
to find remedies for those things by which they suffered.
2.3.

Constitutional Foundation of Free and Fair Elections

A democratic government is the outcome of elections conducted according to the standard or


principles of fairness and impartiality. Hence, the normal practice, particularly in democratic
countries, is to incorporate provisions for ensuring free and fair elections in the Constitution
itself. Other elaborate provisions relating to elections however, may be incorporated in
various statutes.
Part XV30 of the Constitution of India lays down the basic provisions regarding elections.
While the Constitution itself provides the procedure for the election of the President 31 and the
Vice President,32 the procedure for election to legislatures of the Union and the States is left
to the legislation made by Parliament or the State Legislature. However, certain basic
principles of free and fair elections are incorporated in the Constitution itself. Several Art.s in
the constitution specifically confer legislative power on Parliament. Thus, Art. 82 33 empowers
Parliament to determine by law the manner in which and the authority by which each State is
to be divided into territorial constituencies after each census for purpose of election to Lok
Sabha and State Assemblies.
2.3.1 Universal Adult Suffrage
Adult Suffrage or equal right to vote is a basic principle of free and fair elections. A free and
fair election based on universal adult franchise is the basic: the regulatory procedure vis-a-vis
the repositories of functions and the distribution of legislative, executive and judicative roles
30 Elections, (Art.s 324-329)
31 Art. 54, 55, Constitution of India, 1950
32 Art. 66, ibid.
33 Readjustment after each census
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in the total scheme, directed towards holding of free elections are the specifics. 34 Art. 32535
and 32636 of the Constitution constitute a complete code which contains the following
specific elements:

General Electoral Roll


Equal Right to Vote
Apathy in Participation
Equality of Constituencies
General Right to Contest
Secrecy of Ballot

The founding fathers introduced universal adult suffrage in the Constitution as an instrument
of social engineering and nation-building. But it is a sad that the adult suffrage has not
achieved what it was intended for. Our experience shows that many social groups precisely
unaware of their strength before independence, now have realised that they are in a position
to wield power. Castism, communalism have been frequently used for building sectarian vote
banks for getting to power or remaining in power. This tendency which the Constitution
desired to eliminate has been progressively on an increase. 37 This has also given rise to
regional splinter parties. This has posed a danger to the unity and integrity of India.
2.3.2 Election Commission- A constitutional Body
The Election Commission is the only Constitutional authority for the superintendence,
control, direction and conduct of all elections to the legislative bodies in the country.38 In
discharge of its Constitutional functions and obligations the Election Commission has to pass
orders, give directions and take appropriate decisions under Art. 324 of the Constitution and
34 Mohinder Singh Gill v. CEC, AIR 1978 SC 851, at p. 859-60
35 No person to be ineligible for inclusion in, or to be claim to be included in a special, electoral roll
on grounds of religion, race, caste or sex
36 Elections to the Hopuse of People and to the Legislative Assemblies of State to be on the basis of
Adult Suffrage
37 Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd.,
New Delhi, 1st ed. 2003 at p. 51
38 Art. 324 of the Constitution, 1950
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the law made by the appropriate Legislature. Generally, a writ can be issued against anybody having legal authority to determine questions affecting the rights of the subjects. Art.
226 is designed to ensure that each and every authority in the State including the Government
must act bonafide and within the limits of its power and when the Court is satisfied that there
is an abuse or misuse of power or an error of jurisdiction, it is incumbent on the High Court
to afford justice to the individual or affected party. But in case of Election Commission, the
framers of the Constitution trusted the Election Commission that it would conduct free and
fair elections independently, impartially and expediously. Therefore, during the process of
election, the whole things are in the hands of the Commission and no outside interruption is
allowed. Art. 329(b) imposes a blanket ban on judiciary and this bar against judicial
intervention applies after notification of elections till the declaration of result of election. This
position of law is well settled by a number of landmark decisions of the Supreme Court. 39
Thus, there is no scope for judicial intervention against any action taken by the Election
Commission during the process of elections.
However, there are certain limitations on the powers of the Election Commission, 40 which the
Commission has to work within the framework of Art. 324 of the Constitution and subject to
the mandatory provisions of the constitutional law and statutory rules and a Court can
interfere if those provisions are violated. For certain purposes the Commission is a quasijudicial authority or a tribunal,41 and responsible for observance of principles of natural
justice. The orders of the Election Commission are subject to judicial review in all such cases
when its decisions or directions are erroneous, unfair or unreasonable and arbitrary or against
the law of the land, and are without jurisdiction under the Constitutional democracy is above
the law.42 But the Courts cannot command the Election Commission to do a particular duty in

39 N.P. Punnuswami v. Returning Officer, AIR 1952 SC 64, Hari Vishnu Kamath v. Ahmad Isaque,
AIR 1955 SC 233, N.B. Khare v. EC, AIR 1957 SC 694, Mohinder Singh Gill v. CEC, AIR 1978 SC
851
40 Mohinder Singh Gill v. CEC, AIR 1978 SC 851
41 A.P. Hill Leaders Conference v. W.A. Sangma, AIR 1977 SC 2155
42 Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd.,
New Delhi, 1st ed. 2003 at p.88
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a particular manner or to act under a particular law.43 Such directions of the Courts would be
against the principle of independence of the authority established for the purpose of
conducting free and peaceful polls under the Constitution. Any decision sought or tended will
not amount to calling in question an election if it subserves the progress of the election and
facilitates the completion of the election. Thus, the Courts can interfere if the petition is
merely to correct or smoothen the progress of election proceedings.
Also, when Parliament or state Legislature has made a valid law relating to or in connection
with elections, Commission is required to act in conformity with the these provisions. In
where law is silent, Art. 324 is a reservoir of power to act for the avowed purpose of having
free and fair election. The Constitution has taken care of leaving scope for exercise of
residuary power by the Commission in its own right as a creature of the Constitution in the
infinite variety of situations that may emerge form time to time in a large democracy, as every
contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing
necessary directions, the Commission can fill the vacuum till there is legis1ation on the
subject.44
To maintain the purity of elections and in particular to bring transparency the process of
election, the Commission can ask the candidates about the expenditure incurred by the
political parties and this transparency in the process of election would include transparency of
a candidate who seeks election or re-election. In a democracy, the electoral process has a
strategic role. The little man of this country would have basic elementary right to know full
particulars of a candidate who is to represent him in Parliament where laws to bind his liberty
and property may be enacted.45
2.3.3 Judicial Review of Elections
A judicial tribunal or Court to deal with the disputes arising out of elections is, an important
requisite of free and fair elections. Thus, election laws must contain a provision for resolving
43 D. Sanjeevaya v. Election Tribunal, A.P. and others, AIR 1967 SC 1211; Election Commission of
India v. Union of India, (1995) Supp. (3) SCC 643
44 Abhinav Prakash, Law Relating to Elections, Universal Law Publishing Co.Pvt. Ltd., New Delhi,
2006, at p. 53
45 Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294
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disputes by judicial approach. The object of such provision is to enforce the law made for
irradicating the mal-practices in elections and to punish the person who deviates from the
prescribed rules. To put a stamp of validity on an election of a candidate by saying that the
challenge to such an election would not be governed by any election law and the said election
in any case would be valid and immune from any challenge runs counter to the accepted
norms of free and fair elections.46 The election disputes have to be resolved by an authority
having power of judicial review. Majority view in Indira Nehru Gandhi v. Raj Narain47 was
that the legislature cannot assume this role upon itself.
Constitution of India provides judicial review of governmental actions, both legislative and
executive, which can be availed through appropriate writ petitions to High Courts 48 and the
Supreme Court.49 But there is a bar against the interference by courts in electoral matters.
Art. 329(b)50 is a blanket bar on legal proceedings to challenge electoral steps taken by the
electoral machinery for carrying forward the process of election and the only remedy to
challenge such steps on the basis of illegality, is an election petition to be presented after the
elections are over. Even if a petitioner seeks any remedy which would not be available in the
election petition, a petition under Art. 226 might be possible only after the completion of the
election.51
The principle of observance of restraint 52 is indeed a vital factor in the area of election law,
because constitutionally, elections can not be curtailed or vitiated on each and every stage and
46 Art. 329 A, held repugnant to the principles of Free and Fair Elections and repealed.
47 AIR 1975 SC 2277.
48 Art. 226, Constitution of India
49 Art. 32, Constitution of India
50 No election to either house of the parliament or to the either house of the legislature of a state
shall be called in question except by an election petition presented to such authority and in such
manner as may be provided for by or under any law made by appropriate legislature
51 Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851.
52 Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd.,
New Delhi, 1st ed. 2003 at p.84
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therefore, the law is exhaustive to deal with complaints of malpractices, 53 corrupt practices54
or illegality and for their rectification. If during the election campaign or the actual poll itself,
any irregularity or illegality is committed by or on behalf of any candidate, the Acts, Rules
and guidelines make sufficient provisions and provide machinery for rectification of
complaints.55 Moreover, since the superintendence and control of elections right from the
preparation of electoral rolls upto its culmination is entrusted to an independent and impartial
body, who is invested with wide powers under the Constitution and law made thereunder, a
presumption is always in favour of free and fair elections as Election Commission is also
bound by the provisions of the constitution

53 Sec. 100, Representation of People Act, (RPA) 1951


54 Sec. 123, ibid
55 Part IV, Conduct of Elections, RPA, 1951 read with Conduct of Elections Rules, 1961
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CHAPTER III
PROVISIONS IN IPC, 1860
If a candidate, his election agent or any other person commits corrupt practices in election,
the election may be set aside and the person involved in such corrupt practice is liable to be
disqualified for contesting election. Apart from setting aside an election of the returned
candidate and disqualifying him or any other person who has committed corrupt practice,
penalties have been provided for several electoral offences under Chapter II of
Representation of People Act, 1951 and Chapter IX-A of the Indian Penal Code, 1860.
Provisions of Representation of People Act, 1951 has been separately dealt in the next
chapter.
3.1.

Overview of Chapter IX A

Chapter IX A of the Indian Penal Code (IPC), 1960 deals with offences relating to Elections.
This chapter was added to IPC in the year 1920, 56 after the British Indian Government
introduced limited Indian participation in the electoral process. The object of the Chapter is to
make punishable bribery, undue influence, personation and other malpractices at elections
and to provide punishment thereof. Although in 1951, (RPA) was passed by the Parliament
which is a more comprehensive legislation on the subject, however the general provisions of
this chapter of IPC are necessary, in so far as they apply not only to election to Parliament or
State Legislature, but to every other kind of Election. 57 Thus despite the existence of RPA,
1951, (RPA), ordinary criminal courts still have jurisdiction to decide cases alleging any of
the election related offences defined in secs. 171 B to 171 E, IPC. The IPC and the RPA have
to be seen as complementing each other, as several definitions of election offences are
provided in the RPA, as for example, the offence of undue influence. 58 Similarly, a conviction
under secs. 171E and 171F of the IPC amounts a disqualification under the RPA.59
56 Added by the Indian Elections Offences and Inquiries Act, 1920
57 Dr. KI Vibhute, P.S.A. Pillais Criminal Law, Lexis Nexis Buttersworth, New Delhi, 10th ed. 2008,
at p. 567
58 Sec. 123(1), RPA, 1951
59 Sec. 8, RPA, 1951
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Scope of the Chapter

The very first provision (s 171A) in the chapter relates to the definition of candidate and
electoral right. Thereafter, the chapter discusses six offences in relation to elections. They
are:

Bribery and punishment thereof (Sec. 171B and 171E)


Undue influence (Sec. 171C and 171F)
Personation at election (Sec. 171D)
Making or publishing False Statements (sec. 171 G)
Illegal payments (sec. 171 H)
Failure to keep election accounts (sec. 171 I).

The first three offences, namely, Bribery, Undue Influence, and Personation, are considered
grave enough to deserve imprisonment for a term up to one year. The other three offences,
vis, making false statements about the personal character or conduct of a candidate, illegal
payments in connection with an election, and failure to keep election accounts as required by
law, are punishable with fine only.
3.3.

Candidate & Electoral Right

Candidate has been defined as any person who has been nominated as a candidate at any
election.60 The determining factor as to who is a candidate lies in the decision of the candidate
himself, not on the act of other persons or bodies adopting him as candidate. Thus if he has
communicated his intention to the outside world by declaration or conduct, from which it can
be inferred that he intends to contest elections, then from that moment onwards, he would be
considered to be a candidate.61
The term electoral right has been defined as the right of a person to stand or not to stand as,
or to withdraw from being, a candidate or to vote or refrain from voting at any election. 62 The
term Election has been defined in expln 3 to 21 of the IPC. It denotes an election for the
purpose of selecting members of any legislative, municipal or other public authority of
60 Sec. 171 A, RPA, 1951
61 S Khader v. Munuswami, AIR 1955 SC 775
62 Sec. 171 A, RPA, 1951
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whatever character, the method of selection to which is by, or under, any law prescribed as by
election
3.4.
Specific Offences
3.4.1. Bribery
Giving or acceptance of bribery or gratification either as a motive or as a reward to induce
any person to stand or not to stand as or to withdraw from being a candidate or to vote or
refrain from voting at an election63, is punishable with imprisonment of either description for
a term which may extend to one year, or with fine, or with both.. However, bribery in the
form of food, drink, entertainment or otherwise treating is punishable with fine only.64 But
declaration of a public policy or promise of a public action is not an offence under sec. 171 B
The offence is non-cognizable, bailable and triable by Magistrate of first class.65
The term gratification may be taken to mean, something valuable which is calculated to
satisfy a persons aim, object or desire, whether or not that thing is estimable in terms of
money.66 In the case of Trilochan Singh v Karnail Singh,67 two tests were evolved to check
out as to what would amount to an act of bribery. The first test was to see whether the
gratification was calculated to satisfy a persons aim, object or desire, and secondly, whether
the gratification would be of some value, even if the value was not estimable in terms of
money. The gratification need not merely be of value to the person offered, but also to
anybody else.
3.4.2. Undue Influence
Section 171C defines the offence of undue offence at elections while 171F provides the
punishment for the same. The essential ingredient of the offence is that there should be a
voluntary interference or attempted interference with the right of a person to enjoy his
63 Sec. 171 B, ibid
64 Sec. 171 E, ibid
65 The First Schedule of Code of Criminal Procedure, 1973.
66 Mohan Singh v. Bhanwarlal, AIR 1964 SC 1366
67 AIR 1968 Punj 416, (1968) Cr U 1199 (P&H) (FB).
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electoral rights, namely, the right to stand for elections or to withdraw from elections. This
covers all threats of injury to person or property and all illegal methods of persuasion and any
interference with the liberty of the candidate or the electors. The inducing or attempting to
induce a person to believe that he will become the object of divine displeasure is also
interference. It is not, however, interference within the meaning of 171 C (3) to make a
declaration of public policy or promise of public action. 68 The gist of Undue Influence
consists in voluntary interference or attempts at interference with the free exercise of any
electoral rights.69 Unlike English Law, in Indian Law, what is material is not the actual effect
produced, but the commission of such acts, as are calculated to interfere with the free
exercise of any electoral right.70
Following are held to be the important considerations for the stages of Undue Influence.71

There can be undue influence at any stage during the elections. This ranges from the
time when the elector goes through the mental process of weighing the merits and
demerits of the candidates to make his choice and also covers the time when he

actually casts his vote or ballot;


The pamphlet would be one which would be covered both by s 171C, as also s 171G,
even if it was anonymous. When it was distributed in Parliament by a MP then it
showed that the person had endorsed the pamphlet;

It is the degree or gravity of the allegation, which determines whether the allegations
would be covered by s 171 C or s 171G. If it was aimed at character assassination,
then it would be the lesser offence of s 171 G; however, if it amounted to interference
with the election, then it would be covered by provision of s 171 C.

3.4.3. Personation at an Election

68 Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd.,
New Delhi, 1st ed. 2003 at p.293
69 Baburao Patel v. Dr. Zakir Hussain, AIR 1968 SC9 04
70 Ram Dial v. Sant Lal, AIR 1959 SC 855
71 Shiv Kripal Singh v. VV Giri, AIR 1970 SC 2097
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Whoever at an election applies for a voting paper or votes in the name of any other person,
whether living or dead, or in a fictitious name, or who having voted once at such election
applies at the same election for a voting paper in his own name, and whoever abets, procures
or attempts to procure the voting by any person in any such way, commits the offence of
personation at an election:
Provided that nothing in this section shall apply to a person who has been authorised to vote
as proxy for an elector under any law for the time being in force in so far as he votes as a
proxy for such elector.72 The offence of personation is punished with an imprisonment for a
term of one year, fine or both.73
This sec. defines personation at elections. It covers a person who attempts to vote in another
persons name or in a fictitious name, as well as a voter who attempts to vote twice and any
person who abets, procures, or attempts to procure such voting. 74 The offence defined here
differs from the previous ones in that it covers the offences committed not by the candidate or
his agent, but by others also. The essence of the offence of false personation is that the
offender pretends to be other than what he really is. It covers only issues when there is an
attempt at impersonation and does not come into play when the candidate or his agent, do not
claim to be the voters themselves, when they make cross against any name. 75 The offender
must have a corrupt motive. A person, who, in good faith, believes that he has two votes as
his name appeared in two lists of voters at two polling stations, therefore, cannot be held
guilty under the section.76 However, proof of mens rea or corrupt motive is not required when
a person knowing that he is not entitled to vote, goes to a polling station and applies for a
ballot paper under a false name. His mens rea or corrupt motive is implied in his act.77
3.4.4. Making or Publishing Deliberate False Statements
72 Sec. 171D. Personation at Elections
73 Sec. 171 F
74 V.R. Manohar & Y.V. Chandrachud, Ratanlal & Dhirajlals The Indian Penal Code, Wadhwa
Nagpur, New Delhi, 2006
75 Parthasarathi v Ramachandra Rao, AIR 1956 AP 65; State of Gujarat v Chandulal Bhikalal AIR
1965 Guj 83, (1965) Cr U 440 (Guj).
76Pantam Venkayya v. Emperar, AlR 1930 Mad 246.
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Whoever with intent to affect the result of an election makes or publishes any statement
purporting to be a statement of fact which is false and which he either knows or believes to
be false or does not believe to be true, in relation to the personal character or conduct of any
candidate shall be punished with fine.78
Section 171G penalizes a person making or publishing a false statement in relation to the
personal character or conduct of a candidate. A statement that does not contain a statement of
fact relating to the personal character or conduct of a candidate does not amount to an offence
under the section.79 A general statement or a general imputation of misconduct or a statement
of fact does not come within the purview of s 17 1G.80
To a charge of false statement and thereby to invoke s 171 G, it is required to prove that:

An election was impeding.


The accused made or published a statement.
The statement related to the personal character or conduct of a candidate.
The statement was made or published with intent to affect the result of the election.

The accused knew that the statement was false or believed to be false or he did not
believe it to be true.81

3.4.5. Illegal Payments


Whoever without the general or special authority in writing of a candidate incurs or
authorizes expenses on account of the holding of any public meeting, or upon any
advertisement, circular or publication, or in any other way whatsoever for the purpose of
promoting or procuring the election of such candidate, shall be punished with fine which may
extend to five hundred rupees:
77State of Gujarat v. Chandula Bhikalall, AIR 1965 Guj 83, (1965) Cr U 440 (Guj); State of Orissa v
GokulBarick AIR 1959 Ori 97.
78 Section 171G. False statement in connection with an election.
79 Narayanaswamy Naicker v Devaraja Mudaliar, AlR 1936 Mad 316.
80 KumaraNanda v Brij Mohan Lal Sharm,a, AIR 1967 SC 808.
81 Mohd Kadir Sheriff v Rahmatullah, AIR 1940 Mad 230.
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Provided that if any person having incurred any such expenses not exceeding the amount of
ten rupees without authority obtains within ten days from the date on which such expenses
were incurred the approval in writing of the candidate, he shall be deemed to have incurred
such expenses with the authority of the candidate.82
This section makes any unauthorized and unapproved expenditure (by the candidate) illegal
at an election. It plausibly intends to secure correct returns of expenditure and to prevent
corruption.83 The punishment provided for such an unauthorized and unapproved expenditure
is fine up to five hundred rupees.
3.4.6. Failure to keep Election Accounts
Whoever being required by any law for the time being in force or any rule having the force of
law to keep accounts of expenses incurred at or in connection with an election fails to keep
such accounts shall be punished with fine which may extend to five hundred rupees.84
Section 171-I penalizes the failure of a candidate to keep accounts of expenses incurred at an
election. In Mast Ram v State of Punjab,85 the Supreme Court held that the offence referred to
by this section related to non-maintenance of accounts by a Member of Parliament, who
contested elections and not to irregular maintenance of accounts.

CHAPTER IV
PROVISIONS IN REPRESENTATION OF PEOPLE ACT, 1951 (RPA)
In addition to the penal provisions in IPC, 1960, RPA also contains provisions as to corrupt
practices and electoral offences. Section 2 (c) of the act defines corrupt practice as any of the

82 Sec. 171 H. Illegal Payments in connection with an Election


83 Dr. KI Vibhute, P.S.A. Pillais Criminal Law, Lexis Nexis Buttersworth, New Delhi, 10th ed. 2008,
at p. 581
84 Sec. 17 1-I. Failure to keep election accounts, RPA, 1951
85 (1995) Supp 2 SCC 744.
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practices specified in sec. 123 of the act. Commission of corrupt practice as defined under the
Act is a ground for setting aside the election in question under section 10086 of the Act.
4.1. Corrupt Practices
According to sec. 123 of the following shall be deemed to be corrupt practices
4.1.1.

Bribery [sec. 123 (1)]

Bribery includes any gift, offer or promise by candidate or by his agent to

any person with the object to induce him to stand or not to stand, to withdraw or not

to withdraw from being a candidate


an elector to vote or refrain from voting

The gist of the corrupt practice under Sub-section (1) of Section 123 of the 1951 Act is that
there has to be a gratification by a candidate or his agent or by any other person with the
consent of a candidate or his election agent, to any person with the object of inducing a
person to stand or not to stand as a candidate at the election or inducing voters to vote for him
or not to vote for some others. However, wider meaning should be given to the words offer
of bribery because it includes all kinds of offer of bribery.87 In Rajendra Prasad Jain v.
Sheel Bhadra Yajee88, it was observed that when considering the scope of the words offer of
bribery in the election law, the Court should not place a narrow construction on that
expression. In fact, the scope of that expression should be extended in order to ensure that
elections are held in an atmosphere of absolute purity, and a wide meaning should be given to
the expression offer of bribery.
4.2.2. Undue Influence [sec. 123 (2)]
Undue influence, has been any direct or indirect interference or attempt to interfere on the
part of the candidate or his agent, or of any other person with the consent of the candidate or
his election agent, with the free exercise of any electoral right. Threatening any candidate or
86 Grounds for Declaring Election to be void
87 Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd.,
New Delhi, 1st ed. 2003 at p.182
88 AIR 1967 SC 1445.
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inducing or attempt to induce any candidate or any person in whom he is interested is deemed
to be interference with electoral right under this clause. 89 However, a declaration of public
policy, or a promise of publication, or the mere exercise of a legal right without intent to
interfere with an electoral right, shall not be deemed to be interference within the meaning of
this clause.90
4.2.3. Appeal on Ground of Religion, race, caste community or language and the use of
appeal to religious and national symbols [sec. 123 (3)]
The appeal by a candidate or his agent or by any other person with the consent of a candidate
or his election agent to vote or refrain from voting for any person on the ground of his
religion, race, caste community or language or the use of, or appeal to religious symbols or
the use of, or appeal to, national symbols, such as the national flag o the national emblem for
the furtherance of the prospects of the election of that candidate or for prejudicially affecting
the election of any candidate, is a corrupt practice under this provision.
The restriction imposed in this sec. is in the interest of decency in a secular polity and is thus
a reasonable restriction within the meaning of Art. 19 (2) and is not violative of Art. 19 (1)
(a).91
4.2.4. Promoting Hatred or Enmity on the ground of Religion etc. [sec. 123 (3A)]
Sec. 123 (3A) was inserted in 196192 which reads;
The promotion of, or attempt to promote, feelings of enmity or hatred between different
classes of the citizens of India on the grounds of religion, race, caste, community or language,
by a candidate or his agent or any other person with the consent of the candidate or hid
election agent for the furtherance of the prospects of the election of that candidate or for
prejudicially affecting the election of any candidate.

89 Sec. 123 (2) (a), RPA, 1951


90 Sec. 123 (2) (b), ibid
91 Dr. Ramesh Y. Prabhoo v. Prabhakar K. Kunte, (1996) 1 SCC 130
92 Inserted by Representation of People, (Amendment) act, 1961
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The provision is made with the object of curbing the tendency to promote or attempt to
promote communal, linguistic or any other factional enmity or hatred to prevent the divisive
tendencies, the provision in the IPC as well as in the RP Act for this purpose was made by
amendment at the same time. The amendment in the RP Act followed amendments made in
the Indian Penal code to this effect in a bid to curb any tendency to resort to divisive means to
achieve success at the polls on the ground of religion or narrow communal or linguistic
affiliations. Any such attempt during the election is viewed with disfavour under the law and
is made corrupt practice u/s 123 (3A), RPA, 1951.93
4.2.5. Publication of False Statement [sec. 123 (4)]
The publication by a candidate or his agent or by any other person with the consent of a
candidate or his election agent, of any statement of fact which is false, and which he either
believes to be false or does not believe to be true, in relation to the personal character or
conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate,
being a statement reasonably calculated to prejudice the prospects of that candidates
election, is regarded as corrupt practice under this provision.
The policy underlying the provisions of section 123(4) is that in the matter of elections, the
public and political character of a candidate is open to scrutiny and can be severely criticised
by his opponents, but a Private or personal character is not so. In order that the elections in a
Democratic country should be freely and fearlessly conducted, considerable latitude has to be
given to the competing candidates to criticize the political and socio-economic philosophy of
their opponents or their antecedents and character as public men. That is why even false
statements as to the public character of candidates are not brought within the mischief of
section 123(4), because the legislature thought that in the heat of election it may be
permissible for competing parties and candidates to make statements in relation to the public
character of their opponents, and even if some of the statements are false, they would not
amount to corrupt practice.94
4.2.6. Free Conveyance of Voters [sec. 123 (5)]

93 Abhinav Prakash, Law Relating to Elections, Universal Law Publishing Co.Pvt. Ltd., New Delhi,
2006, at p. 169
94 Dr. Jagjit Singh v. Giani K. Singh, AIR 1966 SC 773
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The scope of this provision has been discussed by Supreme court in Dadasaheb Dattatraya
Pawar v. Pandurang Rao Jagtap,95.
To sustain an action under this provision it is necessary to prove:

That any vehicle or vessel was hired or procured, whether on payment or otherwise,
by the candidate or by his election agent or by any other person with the consent of

the candidate or of his election agent


Tthat it was used for the conveyance of the electors to or from any polling station
That such conveyance was free of cost to the electors.

Failure to substantiate any of these ingredients leads to the collapse of the whole charge under
section 123(5).
4.2.7. Incurring Unauthorised Expenditure [sec. 123 (6)]
Section 123(6) of the 1951-Act makes the the incurring or authorizing & expenditure in
contravention of section 7796 a corrupt practice. Different limits of election expenditure for
parliamentary and assembly constituencies for different states and UTs have been provided. 97
The object of the provision limiting the expenditure is two fold. In the first place it should be
open to any individual or any political party, howsoever small, be able to contest an election
on a footing of equality with any other individual or political party, howsoever rich and well
financed it may be, and no individual or political party should be able to secure an advantage
over other by reason of its superior financial strength.98
4.2.8. Obtaining services of Government servant [sec. 123 (7)]
The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or
his agent or, by any other person with the consent of a candidate or his election agent, any
assistance (other than the giving of vote) for the furtherance of the prospects of that
95 AIR 1978 SC351
96 Sec. 77 (3), RPA, 1951 restricts that the total of the said expenditure shall not exceed such amount
as may be prescribed
97 Rule 90, Conduct of Election Rules, 1961
98 Kanwar Lal Gupta v. Amar Nath Chawla, AIR 1975 SC 308
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candidates election, from any person in the service of the Government and belonging to any
of the following classes,

gazetted officers;
stipendiary judges and magistrates;
members of the armed forces of the Union;
members of the police forces;
excise officers;
revenue officers other than village revenue officers known as lambardars, malguzars,
patels, deshmukhs or by any other name, whose duty is to collect land revenue and
who are remunerated by a share of, or commission on, the amount of land revenue

collected by them but who do not discharge any police functions


such other classes of persons in the service of Government as may be prescribed

would amount to corrupt practice. It is important to note that what the law prevents is the
obtaining or procuring of assistance of a government servant. It does not prohibit any
voluntary assistance rendered by a government servant without the candidate asking for it. A
government servant has a private personality too and help rendered voluntarily by a
government servant without any attempt by the candidate to obtain or procure does not
constitute the corrupt practice under section 123 (7), whatever be the impropriety of it for the
government servant himself.99
4.2.9. Booth capturing [sec. 123 (8)]
Booth capturing under the head Corrupt Practices has been given the same meaning as under
sec. 135 (A), under which it has been made an Electoral Offence and it has been discussed
subsequently in this chapter.
4.3. Electoral Offences
4.3.1. Promoting Enmity Between Classes
Promoting enmity between classes in connection with election, under Section I25 of the R.P.
Act, 1951 is a cognizable offence punishable withh imprisonment for a term which may
extend to three years or fine or with bot. This Section can be compared with Sub-section (3A) of Sec. 123 of the R.R Act, 1951 and with Section 153-A100 and Sub-section (2) of Sec.

99 Indira N. Gandhi v. Raj Narain, AIR 1975 SC 2299


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505101 of the Indian Penal Code. An offence under this Section amounts to a corrupt practice
and results in setting aside of election vide Section 100(1) (b) of the R.P. Act, 1951. Offence
of promoting enmity between classes, is non- bailable and triable by Magistrate of the first
class.102 It is relevant to note that sec. 125 is an independent provision and it has nothing to do
with an election dispute. It is not necessary that an election dispute should be pending or the
person accused of this offence should have been held guilty by the election Court. Any person
including the candidate or his election agent can be punished under this Section if he has
committed an offence with regard to elections.103
4.3.2. Public Meetings before Poll
Sec. 126 prohibits public meetings during a period of forty-eight hours ending with the hour
fixed for beginning of poll. If a meeting is convened or held or attended by any person in any
polling area during the period of forty-eight hours with the hour fixed for conclusion of the
poll in any election in that polling area, that is an offence under Section 126 and is punishable
with fine or with imprisonment for a term which may extend to two years or with both. The
prohibition imposed by this, sec. is about holding of public meetings and not canvassing for
election. Acting or inciting others to act in disorderly manner for the purpose of transacting
the business for which the meeting was called is punishable under Section 127 with
imprisonment for a term which may extend to six months or with fine which may extend to
two thousand rupees or with both. police officers have the power to require such person to
declare his name and address and if reasonably suspected that he is giving a false name or
address, to arrest that person against whom a reasonable suspicion exists for violating sec. 27
(1).104 This Section is enacted in the public interest and it is within the competence of

100 Promoting enmity between different groups on ground of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance of harmony
101 Statements conducing public mischief.
102 Sec. 125 of the R.P. Act, 1951 read with Sec. 153-A, 505(2) of the Indian Penal Code and the
First Schedule of the Code of Criminal Procedure, 1973.
103 Ebrahim Suleman Sait v. M.C. Mohammad, AIR 1980 SC 354.
104 Sec. 27 (3), RPA, 1951
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Parliament, though it incidentally touches public order which is within the exclusive
jurisdiction of the State.105
4.3.3. Provisions as regards to Pamphlets and Posters
U/s 127-A, printers and publishers are required to print their names and addresses on any
election pamphlet or poster. The printer is also required to get a declaration as to identity of
the publisher signed by him and attested by two persons to whom he is personally known, in
duplicate, and send a copy of the printed document along with one copy of the declaration to
the Chief Electoral Officer, if printed in the capital of a State or in other cases, to the District
Magistrate of the District in which it is printed. That is so because, whenever a corrupt
practice is alleged under Section 123(4),- it was difficult to find Out printer if the name of the
printing press was not mentioned on the pamphlet and then it was more difficult to establish
as to who has caused this to be printed. Now, the requirement prescribed by Section 127-A to
print the name of the printer and publisher has made the job easier.106
4.3.4. Duty to maintain Secrecy of Voting
Sec. 128 lays down that every officer, clerk, agent or any other person performing any duty in
connection with the recording or counting of votes at an election is bound to maintain the
secrecy of voting and in maintaining such secrecy, he shall not, except for some purposes
authorised under the Act or any other law, communicate to any person any information
calculated to violate such secrecy.107 The contravention of this rule makes him liable to
imprisonment for a term which may extend to three months or with fine or with both. 108
However, a general inspection should not be permitted until there is satisfactory proof in
support of those allegations.109
4.3.5. Duty of Election Officers
105 Rameshwar v. State, AIR 1957 Pat 252
106 Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep Publications (P) Ltd.,
New Delhi, 1st ed. 2003 at p.288
107 Sec. 128 (1), RPA, 1951
108 Sewc. 128 (2), ibid
109 Sashi Bhushan v. Balraj Madhok, AIR 1972 SC 1251, at p. 1256
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Sec. 129 casts a duty on officers etc. at elections not to act for candidate or to influence
voting. It says that no person who is a District Election Officer or a Returning Officer, or an
Assistant Returning Officer, or a Presiding Officer or Polling Officer at an election, or an
officer or clerk appointed by the Returning Officer or the Presiding Officer to perform any
duty in connection with an election, shall in the conduct or the management of the election do
any act (other than the giving of vote) for the furtherance of the prospects of the election of a
candidate. No such person as aforesaid, and no member of a police force, shall endeavour to
persuade any person to give or not to give his vote or to influence the voting of any person at
an election in any manner. The contravention may be penalised by imprisonment which may
extend to six months or with fine or with both. The offence under Section 129 is specifically
made cognizable.110
4.3.6. Prohibition of Canvassing or Disorderly Conduct
Secs. 130 and 131 prohibit canvassing or disorderly conduct in or near the polling station. It
lays down that no person shall, on the date or dates, on which a poll is taken at any polling
station, make canvassing for votes or persuade any person to vote or not to vote, exhibit any
notice relating to election within a distance of one hundred meters of the polling station.
Section 132 prescribes penalties for misconduct at the polling station. the Presiding Officer or
any person authorised by him in this behalf or any Police Officer on duty may remove any
person from the Polling station if he fails to obey the lawful directions of the Presiding
Officer111 and if such person re-enters the premises, then he may be punished with
imprisonment for a term which may extend to three months or with fine or with both. The
offence is made cognizable.
4.3.7. Removal of Ballot Papers
Removal of ballot papers from the polling station is an offence112 and if the Presiding Officer
has reason to believe that any person is committing this offence, he may cause him to be

110 Sec. 129, RPA, 1951


111 Sec 132 (1), RPA, 1951
112 Sec. 135, ibid
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searched by Police Officer. The offence of removing the ballot paper is punishable with one
year imprisonment or with fine which may extend to five hundred rupees or with both.
4.3.8. Booth Capturing
Booth capturing is a type of electoral fraud, found primarily in India, in which party loyalists
"capture" a polling booth and vote in place of legitimate voters to ensure that their candidate
wins. Though it is a kind of voter suppression, unlike other forms of voting fraud, boothcapturing is a malpractice witnessed mainly in India and the least subtle of all.
Almost every state in the country has witnessed some booths being captured either by the
ruling or opposition parties, though it is disproportionately widespread in states in North
India like Bihar, Uttar Pradesh and neighbouring areas. The word came into prominent use by
the media during the late 1970s and 1980s when the number of parties and therefore
candidates multiplied. This resulted in some politicians using underhand methods including
booth capturing, especially in the rural hinterland of India. It became such an organised part
of the Indian election process, that there were gangs who organised themselves to stuff ballot
boxes, another to intimidate the public and even the polling officers while the police were
either bribed or intimidated themselves. The modus operandi of such booth capturing
operations was made easier by the fact that communication in many areas was literally absent
with minimal to no police protection and there was also some kind of political backing to
such unlawful activities. By the 90s it became a common and unsightly occurrence wherever
elections were held. Sometimes two rival party thugs would descend on the same polling
station, resulting in violent clashes with injuries and even deaths on both sides.
In fact this has been one of the major reasons for the disenchantment of the people with the
sanctity of electoral process itself thereby losing their faith in the democratic government.
Though the Election Commission has taken sterner measures 113 and sometimes issued direct
warnings against booth capturing and rigging including shoot-at-sight orders or
countermanding of the poll and rescinding of voting at the booths affected by booth
capturing, but it has become a futile exercise. Since the early eighties, complaints regarding
booth capturing have been steadily increasing; 114 therefore, Sub-Section (8) was inserted in
113 Election Commission of India, Second Annual Report (1984), pp. 77-78.
114 L.P.SINGH, ELECTORAL REFORMS 35(Universal Publishing House, 1988).
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Section 123 of the R.P. Act, 1951 by Amending Act No.1 of 1989, specifying booth capturing
by a candidate or his agent or any other person as corrupt practice.115
Booth capturing by a candidate or his agent or other person was made as a separate corrupt
practice by representation of People (Amendment Act, 1989). Prior to this amendment, the
act of booth capturing was covered under undue influence. The Explanation (4) to Section
123 refer to Section 135-A of the Act for the purpose of definition of booth capturing 116 under
Section 123(8). Section 135-A of the R.P. Act, 1951 as under;
For the purpose of this Section, booth capturing includes, among other things, all or any of
the following activities, namely:
(a) Seizure of a polling station or a place fixed for the poll by any person or persons
making polling authorities surrender the ballot papers or voting machines and doing
of any other act which affects the orderly conduct of elections;
(b) Taking possession of a polling station or a place fixed for the poll by any person or
persons and allowing only his or their own supporters to exercise their right to vote
and prevent others from voting;
(c) Threatening nay elector and preventing him from going to the polling station or a
place fixed for the poll to cast his vote;
(d) Seizure of place for counting of votes by any person or persons, making the counting
authorities surrender the ballot papers or voting machines and the doing of anything
which affects the orderly counting of votes; and
(e) Doing by any person in the service of Government, of all or any of the aforesaid
activities or aiding or conniving at, any such activity in the furtherance of the
prospects of the election of a candidate.
It seems that all the possible acts of violence or threats at the polling booths and at the
counting centres have been included within the definition of corrupt practice of booth
capturing. What is needed is rigorous implementation of the provision of law. Before the
amendment of 1989, there were few cases in which booth capturing was an issue. In Ram
Singh v. Col. Ram Singh, 117 it was alleged that the returned candidate and some of his armed
companions entered the polling station and brandished their guns at the Presiding Officer and
115 ANAND BALLABH KAFALTIYA, DEMOCRACY AND ELECTION LAWS, 280 (Deep & Deep
Publications, 2007)
116 Section 135-A, offences of booth capturing. Representation of People Act, 1951.
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ordered the other polling staff and polling agents to stand and then bogus votes were put
forcibly. Supreme Court held that forcible putting of bogus votes and booth capturing does
not constitute corrupt practice. However, in Ram Saran Yadav v. Thakur Maneshwar Nath
Singh,118 it was proved that when voters were going to the polling station, the agents and
supporters of the returned candidate indulged in assault and hurling of bombs etc. No step
was taken by the candidate to stop them from doing so. The Patna High Court set aside the
election on the ground of commission of corrupt practice under Section 123(2), which was
affirmed by the Supreme Court. These cases were decided on the ground of using of physical
force to restrain voter from exercising his electoral right under the specific head undue
influence. If booth capturing is done by the candidate or by his election agent or by any other
person with his consent, then booth capturing ipso facto would be sufficient to set aside the
election of such candidate.119 If it is committed by some person without the consent of the
candidate or by his election agent to further the prospects of that candidate at that election,
the election would be set aside only if it is proved that the result of the election is materially
affected because of it.120
A careful study of election cases reveal that the evidence led in support of the corrupt practice
must only be cogent and definite but if the election petitioner has to succeed, he must
establish definitely and to the satisfaction of the Court the charge of corrupt practice which is
levelled against the returned candidate.121 In recent judgement, the Supreme Court in L.R.
Shivaramagowda v. T.M. Chandrasekhar122 has held that the election law insists that to unseat
a returned candidate, the corrupt practice must be specifically alleged and strictly proved to
have been committed by the returned candidate himself or by his election agent. Suspicion,
117 AIR 1986 SC 3; R.N. CHOUDHARY, ELECTION LAWS AND PRACTICE IN INDIA 309 (Orient
Publishing Company, 2007)
118 AIR 1985 SC 24.
119 R.N. Choudhary, Supra 5 at 312.
120 Section 123(8) read with Section 100(1) (d) (ii) of the Representation of People Act, 1951; Ibid
121 Nand Singh v. Ajit Inder Singh, AIR 199 P & H 262; L.R. Shivaramgowda v. T.M.
Chandrasekhar, AIR 1999 SC 252.
122 AIR 1999 SC 252.
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however strong, cannot take the place of proof, whether the allegations are sought to be
established by direct evidence or by circumstantial evidence. Dealing specifically with
Section 123(8) the apex Court in Baldev Singh Mann v. Gurucharan Singh (MLA)123 and
others observed;
An allegation of corrupt practise within the meaning of Sub-Section (1) to (8) of Section 123
of the Act, made in the election petition are regarded quasi-criminal in nature requiring a
strict proof of the same because the consequences are not only very serious but also penal in
nature. On the proof of any of the corrupt practice as alleged in the election petition it is not
only the election of the returned candidate which is declared void and set aside but besides
the disqualification, the candidate himself or his agent or any other person as the case may be,
if found to have committed corrupt practice may be punished with imprisonment under
Section 135-A of the Act. It is for these reasons that the Court insist upon strict proof of such
allegation of corrupt practice and not to decide the case on preponderance or probabilities.
The evidence has therefore, to be judged having regard to these well settled principles.124
In Baldev Singh Manns case, the allegations were that the returned candidate along with his
supporters, variously armed, threatened the polling agent of the election petitioner not to go
inside the polling station and not to raise objections regarding identity of the voters. Polling
agent of the election petitioner not examined as witness in support of the allegation and no
complaint oral or written, about the incident made to Returning Officer, Presiding officer or
the Police personnel on election duty. On the contrary, consistent, convincing and satisfactory
evidence adduced by the returned candidate showing that polling was peaceful. Both the High
Court and Supreme Court held that the allegations of corrupt practice not made out. Hence
the petition was dismissed.125
Since secrecy of voting is not to be infringed during the election trail, 126 the election material
and records, like used or unused ballot papers, counterfoils, etc. cannot be brought before the
123 1996 SCALE (1)683 Anand Ballabh Kafaltiya Supra 3at 281.
124 Ibid., SCALE at 746.
125 DEV INDER, MANUAL OF ELECTION LAW IN INDIA 178 (Universal Law Publishing Co. Pvt. Ltd.,
2004)
126 Section 94 of the Representation of People Act, 1951.
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Court as a routine matter.127 In Sasanagonda v. S.B. Amarhed,128 it was alleged that the
returned candidate secured eighty to ninthy percent votes by means of booth capturing. That
the returned candidate and his supporters threatened the election staff with connivance of
police, they captured the booth and prevented the voters and supporters of the petitioner. The
ballot paper put in the ballot put in the ballot box and counter foils were forged and fake. The
Returning Officer had lodged FIR on which a case was registered relating to this incident.
The election petitioner called for the documents, used or unused ballot papers and their
counter foils, etc. It was held by the Supreme Court that without any factual foundation in the
election petition, on the basis of vague allegations of booth capturing or rigging in various
paragraphs of the petition, it is not necessary to summon and examine these documents. The
Court refused to allow production of election material for the production has been made out.
Thus, the approach of the Court dealing with the charge of corrupt practice of booth
capturing, seems to be not to interfere with the election of the successful candidate lightly and
the verdict of the electorate should not be upset unless the evidence adduced in support of the
pleadings is of such nature which leads to an irresistible conclusion or unpredictable result
that the allegations made, have been committed rendering the election void. In Nand Singh v.
Ajit Inder Singh,129 it was alleged that at about 4 P.M. on the date of polling at the polling
booth No. 66-A, the election agent of the respondent accompanied by seven other named
person came on a Tata Sumo vechicle. They forcibly entered the polling booth and santched
the ballot papers from the Presiding Officer and one of them started putting the stamp on the
ballot paper in favour of respondent. The polling agent of the respondent and two other gant
of the Congress and CPM candidates who were present on the polling booth folded the ballot
paper and put the same in the ballot boxes. The polling agents aforesaid affixed thumb
impressions on the counter foils of the ballot papers. The respondents nephew was armed
with revolver and held the same in his hand and asked the Presiding Officer and other polling
staff to stand quite on the one side of the polling booth and threatened to kill them if they
tried to interefere. Two gunmen stopped the security guards and voters from entering into the

127 Shashi Bushan v. Balraj Madhok, AIR 1972 SC 125.


128 AIR 1992 SC 1163; R.N. Choudhary, Supra 5 at 314.
129 AIR 1999 P & H 262; Dev Inder, Supra 13 at 178.
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polling booth. An FIR was also lodged accordingly by the Presiding Officer relating to the
incident.130
The Punjab and Haryana High Court after detailed perusal of the entire case law relating to
pleadings and proof and after careful appreciation of the evidence adduced in the case, came
to the conclusion that the witnesses were highly incredible and they in all reasonable
probabilities did not know and identify the persons who indulge in booth capturing 131 and the
Court took the view that the petitioner has miserably failed to prove the charge of corrupt
practice levelled against the respondent. The evidence led by the petitioner was not found
worthy of crediance and did not satisfy the strict standard of proof required for establishing
the charge of booth capturing.132
It is submitted that the rigging can be classified in two categories, viz., the overt type which is
defined as an electoral offence under Section 135-A and as corrupt type which is invisible or
otherwise peaceful. The covert type booth capturing seldom reported to the concerned
authorities.133 It takes place at polling stations where a particular caste or group are in
dominant position. The polling personal managing the booths have to perforce acquiesce in
the invisible booth capturing out of seer fear of the reprisal from the musclemen of the
dominant group or for other reasons.134 However, deployment of more security forces, photo
identity cards of voters and use of electronic voting machines proved very useful in
restraining this type of booth capturing. Still, there is an imperative need for political parties,
bureaucracy and the police to evolve a consensus and commitment to eschew rigging and poll
violence. The principle of direct and cogent evidence to prove the corrupt practice of booth
capturing should be relaxed in order to yield cases relating to this corrupt practice.135
130 Anand Ballabh Kafaltiya, Supra 3 at 282.
131 Nand Singh v. Ajit Inderjit Singh, AIR 1999 P&H 262 at 279.
132 Supra 19 at 282.
133 Anand Ballabh Kafaltiya Supra 3 at 284.
134 Caste and Candidate Selection-Lok Sabha Poll in Bihar, Economic and Political Weekly (June 18, 1991), P. 1376.
135 Dev Inder, Supra 13 at184.

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CHAPTER V
ROLE OF ELECTION COMMISSION
5.1. Model Code of Conduct
The Commission has issued various instructions on observance of code of conduct from time
to time. The Commission draws up a list of 'dos' and 'don'ts' to be followed by candidates and
political parties after the announcement of elections and till the completion of the process of
elections.136 Following are some extracts form the Model Code of Conduct issues by Election
Commission.137

No party or candidate shall indulge in any activity which may aggravate existing
differences or create mutual hatred or cause tension between different castes and

communities, religious or linguistic.


Criticism of other political parties, when made, shall be confined to their policies and
programme, past record and work. Parties and Candidates shall refrain from criticism
of all aspects of private life, not connected with the public activities of the leaders or
workers of other parties. Criticism of other parties or their workers based on

unverified allegations or distortion shall be avoided.


There shall be no appeal to caste or communal feelings for securing votes. Mosques,
Churches, Temples or other places of worship shall not be used as forum for election

propaganda.
All parties and candidates shall avoid scrupulously all activities which are corrupt
practices and offences under the election law, such as bribing of voters, intimidation
of voters, impersonation of voters, canvassing within 100 metres of polling stations,
holding public meetings during the period of 48 hours ending with the hour fixed for
the close of the poll, and the transport and conveyance of voters to and from polling
station.

136Compendium of Instructions on Conduct of Elections & Guidelines of the Commission in letter


no. 437/6/2009-CC & BE dated 5th of March 2009, see
http://eci.nic.in/ecimain/ElectoralLaws/compendium/vol3.p df, accessed on September 19, 2011.
137 http://www.indian-elections.com/model-code-of-conduct.html, accessed on, September 20, 2011.
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The right of every individual for peaceful and undisturbed home-life shall be
respected, however much the political parties or candidates may resent his political
opinions or activities. Organising demonstrations or picketing before the houses of
individuals by way of protesting against their opinions or activities shall not be

resorted to under any circumstances.


No Political Party or candidate shall permit its or his followers to make use of any
individuals land, building, compound wall etc., without his permission , for erecting

flag-staffs, suspending banners, pasting notices, writing slogans etc.


Political parties and candidates shall ensure that their supporters do not create
obstructions in or break up meetings and processions organised by other parties.
Workers or sympathisers of one political party shall not create disturbances at public
meetings organised by another political party by putting questions orally or in writing
or by distributing leaflets of their own party. Processions shall not be taken out by one
party along places at which meetings are being held by another party. Posters issued
by one party shall not be removed by workers of another Party.

5.2.

Proposed Electoral Reforms

With a view to attain the objectives of Free and Fair Elections and keeping in mind the
election experiences the election commission proposed various reforms, 138 in the year 2004.
Regarding Criminalization of Politics following observations were made:
This is an issue being raised by the Commission from 1998 onwards. Disqualification for
criminal offences is provided for in Section 8 139 of the Representation of the People Act, 1951.
As per that Section, a person is disqualified from contesting election only on conviction by
the Court of Law. There have been several instances of persons charged with serious and
heinous crimes like murder, rape, dacoity, etc. contesting election, pending their trial, and
even getting elected in a large number of cases. This leads to a very undesirable and
embarrassing situation of law breakers becoming law makers and moving around under
police protection. The Commission had proposed that the law should be amended to provide
that any person who is accused of an offence punishable by imprisonment for five years or
138 Proposed Electoral Reforms, Election Commission of India, New Delhi, 2004, see
http://www.youthforequal ity.com/electoral-reform/ELECTORALREFORMS%20ECI.pdf, accessed
on, October 1, 2011.
139 Disqualification on Conviction for Certain Offences
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more should be disqualified from contesting election even when trial is pending, provided
charges have been framed against him by the competent court. The Commission reiterates
that such a step would go a long way in cleansing the political establishment from the
influence of criminal elements and protecting the sanctity of the Legislative Houses. The
counter view to this proposal is based on the doctrine that a person is presumed to be
innocent until he is proved guilty. The Commission is of the view that keeping a person, who
is accused of serious criminal charges and where the Court is prima facie satisfied about his
involvement in the crime and consequently framed charges, out of electoral arena would be a
reasonable restriction in greater public interests. There cannot be any grievance on this.
However, as a precaution against motivated cases by the ruling party, it may be provided that
only those cases which were filed prior to six months before an election alone would lead to
disqualification as proposed. It is also suggested that persons found guilty by a Commission
of Enquiry should also stand disqualified from contesting elections.140
Thus it may be said that other than the laws prevailing relating to the conduct of elections, the
election commission plays an important role in conduct of elections by issuing model code of
conduct from time to time. Moreover, it has also suggested reforms in the election laws so as
to achieve the goal of free and fair elections.

140 Part 3, Proposed Electoral Reforms, Election Commission of India, New Delhi, 2004, see
http://www. youth forequality.com/electoral-reform/ELECTORAL_REFORMS%20ECI.pdf, accessed
on, October 5, 2011.
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CHAPTER VI
SUGGESTIONS FOR REFORM

6.1.

Needed Reforms in IPC

The 14th Law Commission, which for the first time undertook a comprehensive review of the
Indian Penal Code141 offered few substantive and structural proposals for reform in the
chapter dealing with offences relating to elections.142
Recalling the fact that the definition of electoral rights given in s 171A 143 does not expressly
refer to the right of a person not to withdraw his candidature in an election and the
subsequent changes brought in the corresponding section of the RPA, the Law Commission
proposed that the definition of electoral right be modified to incorporate in it the right of a
candidate to withdraw or not to withdraw his candidature.144
It proposed that the provisions dealing with definition of the offence of bribery (s 171 B) and
providing punishment therefore (s 171 E) be clustered together for clear understanding. it,
accordingly, suggested that the present 171E be brought to s 171B as its cl (4) and s 171E be
deleted. Realising the gravity of the offence of bribery, it also recommended that punishment
for the offence of bribery (except bribery by treating) be enhanced to imprisonment for a term
up to two years or with fine, or with both.145
The Law Commission was not satisfied with the clauses dealing with the offence of undue
influence at elections (secs. 171 C and 171 F). Perceiving that the existing s 171C offers a
141Law Commission of India 42nd Report on Indian Penal Code, see,
http://lawcommissionofindia.nic.in/1-50/Report42.pdf, accessed on, October 6, 2011.
142 Dr. KI Vibhute, P.S.A. Pillais Criminal Law, Lexis Nexis Buttersworth, New Delhi, 10th ed.
2008, at p. 581-82
143The right of a person to stand or not to stand as, or to withdraw from being, a candidate or to vote
or refrain from voting at any election
144Para 9A.4, Law Commission of India 42nd Report on Indian Penal Code, see,
http://lawcommission nofindia.nic.in/1-50/Report42.pdf, accessed on, October 7, 2011.
145 Para 9A.6, ibid
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very wide definition of undue influence capable of taking any voluntary interference
within its fold and comparing it with parallel definitional clauses from the British, Canadian
and Australian election laws, the Law Commission stressed the need to have a stricter
definition of undue influence is the IPC with a comparatively severe punishment. It also
suggested that the definition of undue influence, in addition to the two objectionable methods
of undue influence mentioned in its two clauses, should expressly make mention of any
violent method of interfering with the free exercise of an electoral right. It, therefore,
proposed that the existing s 171C be reworded as follows:
171C. Undue influence at elections.(1) whoever, with intent to interfere with the free
exercise of any electoral right at an election,
(a) makes use of, or threatens to make use of, any force, violence or wrongful restraint
on any person, or
(b) inflicts, or threatens to inflict, on any person, injury of any kind (including social
ostracism and expulsion or ex-communication from any caste or community), or
(c) induces, or attempts to induce, any person to believe that he will become object of
divine displeasure or of spiritual censure,
Commits the offence of undue influence at an election:
Provided that a declaration of public policy or a promise of public action shall not sbe an
offence under this section.
(2) Whoever commits the offence of undue influence at an election shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or
with both; and if the offence is committed in the manner specified in clause (a) of sub-section
(1), the imprisonment may extend to three years.146
Law Commission recommended that s 171D (dealing with the offence of personation at
elections) and s 171 F (dealing inter alia with punishment for personation at elections) be
brought together. It recommended that the part of s 171F dealing with punishment for
personation be put in s 171D as its cl (2) and the punishment provided therefore be enhanced
to imprisonment for term up to two years, with fine or both.147

146Para, 9A.12, Law Commission of India 42nd Report on Indian Penal Code, see,
http://lawcommissionofindia .nic.in/1-50/Report42.pdf, accessed on, October 8, 2011.
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The Law Commission, apprehending that false statements made in connection with elections
are not only likely to cause irreparable damage to the candidate concerned but are also likely
to falsify the election as a whole, proposed that existing punishment for making a false
statement (of only fine) be enhanced to imprisonment for a term up to two years, or with fine
or with both.148 It recommended the deletion of secs. 171H 149 and 17 1-I150 from the IPC, as
they seem to be dead letters of law.
However, none of these proposals for reform has received any response either from the
Legislature when it prepared the Indian Penal Code (Amendment) Bill 1978 or from the
Fourteenth Law Commission when it in 1997151 undertook review of IPC.
6.2.

Needed Reforms in RPA, 1951

The law Commission in its 170th Report on Electoral Reforms152 has recommended certain
changes in RPA with a view to reform the existing laws. In relation to electoral offences Lw
Commission has recommend that section 8B be enacted and added to the act, making the
framing of charge (by court) in respect of election offences and certain
offences

ground

other

serious

of disqualification. 153 It has also reiterated the proposals to enhance

the punishment for various electoral offences mentioned in the RPA as well as in the Indian
Penal Code. All of them are electoral offences and seriously interfere with a fair electoral
process. They foul the electoral stream by letting in all kinds of distortions and evils

147 Para 9A.13, ibid


148 Para9A.14, ibid
149 Illegal Payments in connection with an Election
150 Failure to keep Election Accounts
151 Law Commission of India 156th Report on Indian Penal Code, see,
http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf, accessed on, October 9, 2011.
152Law Commission 170th Report on Electoral Reforms, see,
http://www.lawcommissionofindia.nic.in/lc170.ht m, accessed on, October 10, 2011.
153 Para 9.20, ibid
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into the electoral system and finally into our body politic. The punishments at present
provided are totally inadequate and are ridiculously low, hence need to be enhanced.154
Recommendations of National Commission to review the Working of Constitution 155
On Criminalization

Representation of the People Act shall be amended to provide that any person charged
with any offence punishable with imprisonment for a maximum term of five years or
more, should be disqualified for being chosen as, or for being, a member of
Parliament or Legislature of a State on the expiry of a period of one year from the
date the charges were framed against him by the court in that offence and unless
cleared during that one year period, he shall continue to remain so disqualified till the
conclusion of the trial for that offence. In case a person is convicted of any offence
by a court of law and sentenced to imprisonment for six months or more the bar
should apply during the period under which the convicted person is undergoing the
sentence and for a further period of six years after the completion of the period of the
sentence. If any candidate violates this provision, he should be disqualified. Also, if
a party puts up such a candidate with knowledge of his antecedents, it should be

derecognised and deregistered.156


Any person convicted for any heinous crime like murder, rape, smuggling, dacoity,

etc. should be permanently debarred from contesting for any political office.157
Criminal cases against politicians pending before Courts either for trial or in appeal

must be disposed off speedily, if necessary, by appointing Special Courts. 158


A potential candidate against whom the police have framed charges may take the
matter to the Special Court. This court should be obliged to enquire into and take a

154 Para 5.4, ibid


155Report of National Commission to Review the working of Constitution, 2002, see,
http://lawmin.nic.in/ncr wc/finalreport/v1ch4.htm, accessed on, October 10, 2011.
156Para, 4.12.2 Report of National Commission to Review the working of Constitution, 2002, see,
http://lawmin .nic.in/ncrwc/finalreport/v1ch4.htm, Accessed on, October 12, 2011.
157Para, 4.12.3, ibid
158 Para, 4.12.4, ibid
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decision in a strictly time bound manner. Basically, this court may decide whether

there is indeed a prima facie case justifying the framing of charges.159


The Special Courts should be constituted at the level of High Courts and their
decisions should be appealable to the Supreme Court only. The Special Courts should
decide the cases within a period of six months. For deciding the cases, these Courts

should take evidence through Commissioners.160


As per the provisions contained in sub-section (4) of section 8 of the Representation
of the People Act, 1951, the disqualification referred to in sub-Sec. (1) and (2) of that
section shall not take effect for a period of three months from the date of conviction if
the person convicted is a member of Parliament or the Legislature of a State.
However, if within the said three months an appeal or application for revision is
brought in respect of the conviction or sentence, the disqualification will not operate

until that appeal or application is disposed of by the court.161


The Commission recommended that the benefit of this provision should be available
only for the continuance in office by a sitting Member of Parliament or a State
Legislature.

The Commission recommended that the aforesaid provision should

suitably be amended providing that this benefit shall not be available for the purpose
of his contesting fresh elections. The Commission also recommended that the
proposed provision laying down that a person charged with an offence punishable
with imprisonment which may extend to five years or more should be disqualified
from contesting elections after the expiry of a period of one year from the date the
charges were framed in a court of law should equally be applicable to sitting members
of Parliament and State Legislatures as to any other such person.162
On Corrupt Practices and Election Petitions

159Para, 4.12.5, ibid


160 Para, 4.12.6, ibid
161 Para, 4.12.7, ibid
162 Para, 4.12.8, Para, 4.12.2 Report of National Commission to Review the working of
Constitution, 2002, see, http://lawmin.nic.in/ncrwc/finalreport/v1ch4.htm, Accessed on, October 14,
2011.
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Section 8A of the Representation of the People Act, 1951 (RPA) provides for
disqualification on ground of corrupt practices. The current practice is that once the
High Court hands out the judgement on an election petition holding the candidate
guilty of corrupt practices, the case goes to the Secretary of the concerned State
Legislature or the Secretary General Lok Sabha or Rajya Sabha, as the case may be.
It is then forwarded to the President who in turn forwards it to the EC. Only then
does the EC get jurisdiction to tender its opinion to the President based on which the

disqualification order is issued.163


Election petitions at present are considered by the High Court. The High Court is
expected to give judgement on all election petitions within 6 months, but in actual
practice, it takes much longer and often the petitions remain pending for years and in
the meantime even the full term of the House expires. Thus, all election-related
petitions should be heard by a separate judicial set up and these petitions should be
decided within a time bound period within 6 to 12 weeks by dedicated benches of
special courts. The Commission recommended that the election petitions also be
decided by special courts proposed above. In the alternative, special election benches
may be constituted in the High Courts and earmarked exclusively for the disposal of

election petitions and election disputes.164

163 Para, 4.13.1, ibid


164Para, 4.13.2, ibid
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CHAPTER VII
CONCLUSION
Election constitute a basis of any democratic society, it is a process which make it different
from other forms like Tyranny, Monarchy, Oligarchy etc. This process instills confidence and
sense of belongingness in people in the government with a belief that their grievances and
problems will be heard and sorted out. But those who believe in the influence of muscle
power in elections do not believe in soliciting votes from electorate by reasoning and
argument.
Criminalization of the politics is the greatest dangerous factor of the present political system.
A large number of criminals have acquired political positions in the country and their number
is increasing. It is now an established fact that criminalization of politics and corruption in
high levels is destroying the edifice of our parliamentary democracy. The black money earned
by nefarious trades is misused to develop a network of muscle power to be used by politicians
during elections for violence, booth capturing, rigging, intimidating voters and even killing
rival candidates. In Ankul Chandra Pradhan v. Union of India,165 the Supreme Court has
observed that criminalization of politics is the bane of society and negation of democracy.
The need of the hour is to protect and preserve our democratic values by implementing
various reform measures in relation to electoral offences.
Thus Parliament must consider the legal infirmities existing in the provisions of election law
relating to entry of criminals in politics. Classification between general criminals and sitting
member criminals under Sec. 8 of the R.P. Act, 1951 must be omitted. There should not be
any distinction in banning the right to vote and right to contest election in so far as it relates
to criminals. Once charges are framed by the Court in connection with an election offence
against any person, he should be disqualified for contesting elections to the legislative bodies.
Stringent punishment against any violation of election law and its efficient implementation
should be ensured by appropriate amendments in the R.P. Act, 1951. Special courts may be
created for hearing cases of election crime. Duplicity in the legal provisions should be
avoided by reframing the relevant provision in one statute. Dacoits, mafias, goondas and
other criminals should be prohibited from becoming election agents, counting agents or
polling agents. Appropriate legislative changes should be brought about Finally, the law
165 AIR 1997 SC 2814
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should make it obligatory for all political parties that they will not give tickets to criminals.
The Election Commission should have power to de-register such parties which are found
putting-up criminal candidates. Directions of the Supreme Court must be followed on this
aspect. The Code of Conduct formulated by the Election Commission is unique in India. It is
submitted that the violation of Model Code of Conduct should be made an electoral offence
under the provisions of the R.P. Act, 1951. In the absence of legal sanction to it, violation of
the Code cannot be ruled out.
Thus it is only by resorting to these measures and by bringing about the essential reforms in
IPC and RPA that the sanctity of elections may be maintained and retained in Indian
Democracy.
Activities like Snatching votes, Booth capturing is the very antithesis of democracy. The
election Commission has taken sterner measures and sometimes issued shoot at sight orders
or countermanding of polls further law has been amended in order to instil confidence of
democratic society in people. The government has taken further measures like deployment of
more security forces, photo identity card of voters and use of electronic voting machines
which proved very useful in restraining these types of electoral offences. The drastic
difference we have seen is a steep fall in booth capturing from ten to one per cent. The three
zones - Eastern UP and Bihar, Maharashtra and Tamil Nadu, MP and Jharkhand where votes
were tampered to around 10 per cent but after the launch of EVMs the number came down to
one per cent said by an expert in poll survey.166

166 Booth Capturing is History Now, Business Standard, Saturday, August 25 , 2009;
http://www.business-standard.com/india/news/booth-capturing-is-history-now-thanks-toevms/71654/on accessed on October 14, 2011.
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BIBLIOGRAPHY
STATUTES

Criminal Procedure Code, 1973


Indian Elections Offences and Inquiries Act, 1920
Indian Penal Code, 1860
Representation of People Act, 1951
The Constitution of India, 1950

REPORTS

Law Commission 170th Report on Electoral Reforms


Law Commission of India 156th Report on Indian Penal Code
Law Commission of India 42nd Report on Indian Penal Code
Report of National Commission to review the working of Constitution, 2002

BOOKS

Anand Ballabh Kafaltiya, Democracy and Election Laws, Deep and Deep
Publications (P) Ltd., New Delhi, 2003

Basu Durga Das, Shorter Constitution of India, Wadhwa & Company Law Publishers,
New Delhi, 2006

Chandrachud Y.V. & Manohar V.R., Ratanlal & Dhirajlals The Indian Penal Code,
Wadhwa Nagpur, New Delhi, 2006

Gaur KD, Commentary on Indian Penal Code, An Exhaustive Section Wise


Commentary, Universal Law Publishing Company, New Delhi, 2006

Jain M.P., Indian Constitutional Law, Wadhwa and Company Nagpur, New Delhi,
2003

Kathuria R.P., Law of Crime and Criminology, Exhaustive & Criminal Commentary
on Indian Penal Code, Vinod Publications (P) Ltd., Delhi, 2007,

Prakash Abhinav, Law Relating to Elections, Universal Law Publishing Co.Pvt. Ltd.,
New Delhi, 2006

Rathnaswamy P., Electoral Reforms: Law and Institutions of India and World, Book
Well, New Delhi, 2004

Vibhute KI, PSA Pillais Criminal Law, Lexis Nexis Buttersworth, Wadhwa, Nagpur, 10th
ed. 2006

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JOURNALS

Reddy C Rammanohar, Economic and Political Weekly, Sameeksha Trust Publication,

New Delhi, Vol. XLIV No. 39, Sep. 26- Oct 2, 2009
Venkatesan V., Crime and politics, Front Line, New Delhi, Vol. 18 -Issue 26, Dec. 22,
2001 - Jan. 04, 2002

WEB SOURCES

http://eci.nic.in/eci_main/ElectoralLaws/compendium/vol3.pdf
http://eci.nic.in/eci_main/ElectoralLaws/HandBooks/MANUAL_OF_LAW_VOL_I.p

df
http://www.and.nic.in/election/model_conduct.pdf
http://www.elections.tn.nic.in/MCC/Model%20Code_Mins_Secys_HODs.pdf
http://www.hinduonnet.com/fline/fl1826/18260870.htm
http://www.indian-elections.com/model-code-of-conduct.html

http://www.legalserviceindia.com/Art./l290-Criminalization-of-Politics.html

http://www.thehindu.com/nic/modelcodeviolations.pdf
http://www.business-standard.com/india/news/booth-capturing-is-history-now-thanks-toevms/71654

MISCELLANEOUS

Model Code of Conduct for Guidance of Political Parties and Candidates, Election

Commission of India, New Delhi, 2009.


Proposed Electoral Reforms, Publication Division, Election Commission of India,
New Delhi, 2004.

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REMARKS

....

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