“An evaluation of electoral offences in India ”

SUBJECT: - Election Law

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SUBMISSION TO: -

Mr.

Assistant Professor

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Introduction

In the world today democracy is regarded as the best type of Government the reason being that in
modern times nearly everyone believes in democracy and electoral process. Judging by the grad-
ual disappearance of other forms of Government-monarchy, aristocracy, theocracy, oligarchy,
dictatorship (both civil and military) in which there was a marked concentration of power to-
gether with a blatant denial of basic rights to the people-democracy has proved to be the most
durable form notwithstanding the few cases of democracies having turned into authoritarianism.
The durability of democracy stems from the fact that in this system of Government the citizen
gets full opportunities for expressing his will, developing his personality and his faculties for so-
cial, economic and political justice. All these distinctive marks of democracy are, by and large,
unquestionable and easily noticeable in most democracies of the world today. Democracy, in fact
has rapidly become a culture in itself-deliberate cultivation of an intellectual passion in people, it
may be vague at times or even headless and impracticable, but it continues to be the real thing to
which humanity will, in all probability, stick, to the exclusion of other forms of Government.
Democracy is a form of Government in which the sovereign power rests in the hands of the peo-
ple and is exercised by them either directly or indirectly through their representatives. However,
due to impracticability of adherence to the direct democracy everywhere, irrespective of the size
of the country applying it, modern democracy is indirect and representative with honourable ex-
ception of Switzerland where there is a direct democracy. Representative democracy implies pe-
riodic elections to the legislature which is entrusted with the power to act on behalf of the people,
pass laws, levy taxes and bring harmony of purpose between the Government and the Governed.
Thus, election is the very heart of the representative democracy and it is an essential and insepa-
rable part of the modern democratic process. Winston Churchill, the Prime Minister of Great
Britain Explained the merit of electoral process in the following words" At the bottom of all trib-
utes paid to democracy is the little man, walking into a little booth, with a little pencil making a
little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly
diminish the overwhelming importance of the point".

Electoral offences and penal provisions 

Section 123(1) of RP Act and 171B/171E of IPC defines bribery as a corrupt practice as well as
an electoral offence. The section vide clause (1) (i) says that whoever gives a gratification to any
person with the object of inducing him or any other person to exercise any electoral right or of
rewarding any person for having exercised any such right, commits the offence of bribery. Ac-
cording to this sub-clause one way of committing bribery is by giving gratification. The object of
the giver must be either to induce a person to exercise an electoral right or of rewarding him for
having already exercised such right. Bribery has also been defined under clause (1) (ii) wherein it
has been said that whoever accepts any gratification, either for himself or for any other person, as
a reward for exercising any such right or for inducing or attempting to induce any other person to
exercise any such right, commits the offence of bribery. Thus the second way of committing
bribery is by accepting gratification. So bribery under this section is possible either by giving
gratification as stated under the first part of the first clause or by accepting gratification as stated
by the second part of the first clause. There is a proviso clause as well which clarifies that a dec -
laration of public policy or a promise of public action shall not be an offence under this section.

According to the second clause of this section, a person who offers, or agrees to give, or offers or
attempts to procure, a gratification shall be deemed to give a gratification. In other words, a grat-
ification is deemed to have been given in any of the four cases, viz., where a person offers grati-
fication, or where he agrees to give gratification, or where he offers to procure gratification, or
where he attempts to procure gratification. The second clause, therefore, further explains ‘bribery
by giving gratification’ which has been explained in clause (1) (i) of this section.

The third clause of this section further explains ‘bribery by accepting gratification’ which has
been explained in clause (1) (ii) of this section. According to the third clause, a person who ob-
tains, or agrees to accept, or attempts to obtain a gratification shall be deemed to accept a gratifi-
cation, and a person who accepts a gratification as a motive for doing something which he has no
intention to do, or as a reward for doing something which he has not done, shall be deemed to
have accepted the gratification as a reward.

Section 171E prescribes punishment which is simple or rigorous imprisonment for a term ex-
tending up to one year, or fine, or both.

Undue influence

Section 123(2) of RP Act and section 171C/171F of IPC talks about undue influence at election,
thereby making it both a corrupt practice and an electoral offence. Any person who directly or
indirectly interfere or attempt to interfere with the free exercise of any electoral right commits
the offence of undue influence and shall be punished with 1year imprisonment or fine or both as
per provision of IPC. he offence is punishable under section 171 -F of the Code. Sub-section (1)
of the section states that whoever interferes voluntarily, or attempts to interfere voluntarily, with
the free exercise of any electoral right commits the offence of undue influence at an election. Ac-
tual interference and attempt to interfere have been treated at par.

The interference or its attempt must be with respect to free exercise of any electoral right. ‘Elec-
toral right’ has the same meaning as given under section 171-A of the Code. Sub-section (2) ex-
plains the meaning of the expression ‘free exercise of the electoral right’ by including within it
certain things while at the same time not prejudicing the generality of the provisions of sub-sec-
tion (1). It says vide clause (a) that without prejudice to the generality of the provisions of sub-
section (1), whoever either threatens any candidate or voter, or threatens any person in whom a
candidate or voter is interested, with any kind of injury, it shall be deemed to be an interference
with the free exercise of the electoral right of such candidate or voter, as the case may be, within
the meaning of sub-section (1). It says vide clause (b) that without prejudice to the generality of
the provisions of sub-section (1), whoever either induces a candidate or a voter or attempts to in-
duce a candidate or a voter to believe that he or any person in whom he is interested will become
or will be rendered an object of divine displeasure or of spiritual censure, shall be deemed to be
an interference with the free exercise of the electoral right of such candidate or voter, within the
meaning of subsection (1). Sub-section (3), while excluding certain things from being considered
as interference, says that a declaration of public policy or a promise of public action, or the mere
exercise of a legal right without any intention to interfere with an electoral right, shall not be
deemed to be interference within the meaning of this section.

In Raj Raj Deb v. Gangadhar Mahapatra, a candidate at an election represented himself as ‘Cha-
lanti Vishnu’, a representative of Lord Vishnu, before the voters and impressed upon them that
anyone not voting for him would commit a sin against the Hindu religion and sacrilege against
the deity. He was held guilty under section 171-F for committing the offence defined under this
section.

Booth capturing, a new addition to the list of corruption practices and elec-
toral offences 

Snatching votes by terror and coercion is against the essence of democracy. In fact this has been
one of the major reasons for the disenchantment of the people with the sanctity of the electoral
process itself thereby losing their faith in the democratic government. Though the Election Com-
mission has taken sterner measures and has also issued direct warnings against booth capturing
and rigging including shoot-at-sight orders or countermanding of the poll and rescinding of vot-
ing at the booths affected by the booth capturing, it had become a futile exercise. Since the early
eighties, complaints regarding booth capturing have been steadily increasing, therefore, Sub-
Section (8) was inserted in Section 123 of the Representation of People 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.

In 1989 it was provided that for these purposes s 123(8) booth capturing shall have the same
meaning as s 135A of that Act, which was also newly inserted by the same Act making booth
capturing an electoral offence as well. The said Section 135 A reads as follows; ‘Whoever com-
mits an offence of booth capturing shall be punishable with imprisonment for a term which shall
not be less than one year but which may extend to three years and with fine, and where such of-
fence is committed by a person in the service of the Government he shall be punishable with im-
prisonment for a term which shall not be less than three years but which may extend to five years
and with fine.

There are several reports suggesting that the first polling booth that was captured during an elec-
tion was in 1957 in the Rachiyahi area of Begusarai district. But it is still not clear if that incident
could be termed as Booth Capturing. Booth capturing, a common occurrence in the era of paper
ballots, has reappeared in the 2014 Lok Sabha elections. But to an extent, it has been controlled
by the introduction of Electronic Voting Machines. The Supreme Court in Basanagouda vs. S.B
Amarkhed has noted that booth capturing wholly negates the election process and subverts the
democratic set up which is the basic feature of the Constitution. 

Filing of false affidavits as an electoral offence under the RP Act

Filing of false affidavit or concealing any information in the affidavit filed by the candidate is
considered as offence under Section 125A of RP Act. Any person who commits a forementioned
offence will be punished with imprisonment for 6 month or fine or both. But, the matter of con-
cern is that there is no clear provision for follow-up action in the event of candidates filing false
affidavits. Hence, there are several complaints of the false statements in affidavits, which mis-
lead the electors. Ashwini Kumar Upadhyay vs. Union of India

Advocate Ashwini Upadhyay filed a public interest litigation in the Supreme Court under Article
32 of the Constitution seeking to seek directions for making the filing of false affidavit in elec-
tions an offence.

In his PIL citing nearing elections, Upadhyay sought directions to the Centre “to make false
statement or declaration before the Election Commission, Chief Electoral Officer, District Elec-
tion Officer, Presiding Officer or other similar authority, an electoral offence, in line with the Im-
portant Electoral Reforms proposed by the Election Commission of India”. He contended that the
Law Commission of India had proposed to make filing false affidavit a cognizable offence with
2 years of imprisonment and that the offence should also be included under Section 8(1), which
would attract disqualification from the elections.

However, the Government has been ignorant towards this suggestion. Upadhyay also relied on
the recommendation of the Election Commission of India made on February 3, 2011, to amend
Section 125A of the RPA, 1951, to provide that any complaint regarding false statement in the
affidavit in connection with the nomination paper shall be filed before the Returning Officer con-
cerned within 30 days from the date of declaration of the election and that it shall be responsibil-
ity of the RO to take proper follow-up action. Alternatively, a complaint can be filed directly be-
fore the Magistrate. He said the ECI has time and again stressed on the importance of candidates
filing true information in their affidavits. The filing of false affidavits in matters of election can
have extremely serious consequences as it affects the purity of elections and in order to make an
informed choice, the elector has the right to know the correct information regarding the candi-
dates. In Krishnamurthy vs. Siva Kumar, the Court has held that incorrect and false information
interferes with the free exercise of the electoral right of the voter. It was contended that section
125A of RP Act makes filing of false affidavit an offence punishable with just six months im-
prisonment, but it was a much serious offence and should be included in the corrupt practices un-
der section 123 of RP Act and hence the candidate must also be disqualified from contesting
elections. 

The Court held that filing of false affidavit is a serious offence and is against the concept of free
and fair elections, but also noted that they cannot direct for a legislation as it is the duty of the
Parliament. Next hearing of the matter is in the month of August, 2019. 

Distinction between corrupt practices and electoral offences

The Supreme Court in Gadakh Yashwantrao Kangaroo vs. EV Alias Balasaheb Vikhe Patil  held
that in order to ensure that elections are held in a free and fair manner enabling men of high
moral  and ethical values to win, the law has laid down certain rules of electoral morality and
prohibited certain acts of commission and omission which sully the purity of elections and have
corrupting influence and vitiating effect on the outcome of elections. Some of these acts have
been branded as ‘corrupt practices’, while the others have been termed as ‘electoral offences’.  

Corrupt practices are given under Section 123of the RP Act. Electoral offences, on the other
hand are laid down both in the IPC (chapter IXA) and in the RP Act (chapter III of part VII). The
electoral offences under the IPC are criminal in nature, relatable to all elections held under any
law to any elective body in the country, the corrupt practices and electoral offences under the RP
Act are specifically relatable only to elections held under that Act to Parliament and State legis-
latures, and not to other elections including the elections to the offices of the President and Vice-
President of India. 

The fundamental distinction between these two classes of prohibited acts is that when a corrupt
practice is committed by a candidate, or by someone else with his consent, it has the effect of vi-
tiating the whole election and will result in the election of the candidate being declared void, the
commission of an electoral offence does not have such fatal bearing on the election result. In the
former, the whole constituency suffers inasmuch as the candidate loses his seat and the con-
stituency goes without representation in the legislature, till another election is held to replace the
unseated member; in the latter, only the persons committing the electoral offences suffer for their
criminal liability.

The further noteworthy point here is that any grievance relating to the commission of corrupt
practice can be agitated only after the election is over and only in the election petition filed in ac-
cordance with the provisions of Article 329(b) and Part IV of the Ac; but the commission of an
electoral offence can be taken cognizance of as soon as it is committed and the process of law set
in motion immediately thereafter, in the same manner in which any other criminal activity is in-
vestigated and tried under the provisions of the Criminal Procedure Code, 1973. 

Commission of a corrupt practice entails only certain civil disabilities, like, disqualification for
voting and for contesting elections for certain period; but any electoral offence if committed will
be visited with criminal liability and may result in imprisonment or with fine or with both, apart
from attracting civil disabilities of voting and contesting elections in the case of certain specified
electoral offences. 

Conclusion

The concept of free and fair election relates to political liberty and equality. Being ‘Free and
Fair’ in matters of election connotes that no one under the electoral process is in bondage of an-
other or is influenced by another person in any way. If elections are conducted in an unlawful
manner, the public will lose their trust in the procedure of elections and in Democracy. Hence,
Free and fair elections are the foundations of democratic form of government.

On the basis of above discussion, I would like to make a few suggestions for conducting the elec-
tions in a fair manner and they are:

(i) The Election Commission should not solely be responsible for free and fair election, govern-
ment, as well as electorates, should all be made responsible for free and fair election. There
should be complete awareness amongst the people. Such awareness classes can be conducted. It
must a combined effort from all the three parties; 

(1) Election Commissioner and officers, 

(2) Political parties and candidates

(3) general public. 

(ii) Citizens of India should not only be aware of the right to vote but also of the right to elect
freely and fairly and of bad consequences if involved in corrupt practices at election. Also strin-
gent and sudden action must be taken against any person who commits corrupt practices or elec-
toral offences. 

(iii) The quantum of punishment, particularly the amount of fine, prescribed under the IPC are
considered as extremely low in the present scenario. It is also felt that the punitive provisions
should be relooked so as to meet the expectations of the present electorate and some of these of-
fences call for sterner punishment. 

(iv) Election Commissioner must ensure that the model code of conduct is followed. 

Suggestions

Democracy is very fragile and unless democratic means are followed in letter and spirit, there is
danger to the survival of democracy in India. Free and fair elections are the foundation of a
democratic system. Thus, everything should be done to see that elections are held in a free and
fair manner. Our country needs that the democratic process through free and fair elections should
be expanded further, made deeper and wider and protected against all manner of partisan pres-
sures.

1. There should be co-operation of the citizens. And, it is possible only when there is removal of
illiteracy among the citizens and creation of awareness
among them

2. The citizens should avoid to seek last minute amendments in the electoral roll

3. Some other measures should be adopted such as proper payment of remuneration to the enu-
merators and punishment in case of lack of efficiency, i.e. negligence of duty

4. Any person who attains the voting age should have the right to apply for being registered as a
voter as soon as he or she attains that age. If such application is accompanied by evidence of age,
he should be registered as a voter.

5. The problem of accuracy of electoral roll will be resolved to a great extent by the recent deci-
sion of the Election Commission to introduce the system of issue of identity cards to the citizens.
Thus the system of identity card must be introduced without fail.