CHAPTER II

CONSTITUTIONAL PROVISIONS AND LEGAL FRAMEWORK FOR THE

CONDUCT OF FREE AND FAIR ELECTION

2.1Introduction

The Indian Constitution was adopted in November 1949 and pledges to secure

all its citizens ‗justice, liberty, equality and fraternity‘ and created a democratic

republic. The Constitution of India provided Universal adult franchise at one go but

before 1949 (election 1937-1945) the election were conducted in a very limited

franchise. The Indian Constitution was built and frame in a positive action in favour of

disadvantages sections, it provide secularism and guarantee the pluralism of society,

culture, civilization, religion and polity15. The year following 1947, there are hundred

and more countries that got Independence with India but India was the only country

who interpret independence into the freedom of her people 16 . Since then India

strengthen her Political Democracy by giving Constitutional sanctity.

The attainment of India‘s independence is not an end but it‘s the beginning of

a new struggle. After independence, a new India struggle to establish a democracy as

well as an independent nation based on the ideal of justice, liberty, equality and

fraternity. The need of forming a new Constitution base on these ideals was very

important. Therefore, the first and foremost task of the new independent India was to

frame a Constitution and our present Constitution is the result. Our Constitution

presents the political, economic and social ideals and aspirations of the vast majority

15
M.M.K. Sardana, Democracy, Development and Growth:The Indian Experience, ISID Discussion
Notes. p 1, available at www.isid.org.in (last visited on July, 1, 2020)
16
Ibid.

21
of the Indian people.17 At Present, India is a federal state with 28 states divided among

8 unions territories and follow the parliamentary system government based on the

Westminster model.

2.2The Constitutional Framework for Election

Indian Constitution was adopted and provides for a Parliamentary form of

Government and followed the adult franchise at one go. The Constituent Assembly

adopted the constitution with a democratic government system. The constitution lays

down the framework and the provisions for election were also lays down under it. The

Constitution of India also provides power to the parliaments to make laws in relations

to elections, however, the constitution itself have lays down provision for the

regulation of free and fair elections in India. Part XV of the Constitution of India has

specifically provides for the conduct of elections in India. The Government of India

Act, 1935 gives the authority to an executive to conduct the elections whereas the

Constitution of India under Art. 324 created a constitutional authority for the

superintendence, direction and conduct of elections.18The Art. 324 of the Constitution

of India give broad amplitude to the expression ―conduct of elections‖. The expression

includes the powers to make all the necessary provisions for the conduct of free and

fair election and cover all the entire election process.19

17
M.V. Pylee, Our Constitution, Government and Politics 1 (Universal Law Publishing Co.Pvt. Ltd,
New Delhi, 2ndedn, 2002)
18
H.K. Saharay, The Constitution of India, 1129 (Eastern Law House, Kolkata, 4thedn, 2012)
19
Mohinder Singh Gill v. Chief Election Commissioner AIR 1978 SC 851 (para 121)

22
 2.2.1 Adult Suffrage

The equal right to vote or the adult suffrage is a basic principle for free and fair

elections. The Constitution of India, under Art.325 and Art.326 provides for the

principle of adult suffrage and equal right to vote for all. The constitution provides one

general roll for every territorial constituency and abolished the communal

representation which existed during pre-constitution era.20

Natural equality of human being, which is the spirit of democracy, is

maintained in the matter of franchise as Art. 325 of the Indian Constitution lays down

that, ―no person shall be ineligible for inclusion in the electoral roll on grounds only of

religion, race, castes, sex or any of them.‖ Ideals of ‗democracy republic‘, ‗political

justice‘, ‗sovereignty resides in the people‘ and particularly ‗secular democracy‘,

seems to be the source of the universal franchise. 21 Art 325 of the Constitution of

India, further clarifies that no person can claim ―any special electoral roll for any

constituency on grounds only of religion, race, caste, sex or any of them.‖22 Thus,

discrimination against any citizen on these grounds is completely eradicated by the

Constitution.23

The Constitution of India under Art 326 of the Constitution of India, states that

―the elections to the House of People and to the Legislative assembly of every State

shall be on the basis of adult suffrage and date as may be fixed in that behalf by or

under any law made by the appropriate Legislature and is not otherwise disqualified

under the Constitution or any law made by the appropriate Legislature on the ground

of non-residence, unsoundness of mind, crime, corrupt or illegal practice, shall be

20
The Constitution of India, art.325, 326.
21
Preamble, Constitution of India.
22
The Constitution of India,art. 325.
23
S.R. Bommai v. Union of India, AIR 1994 SC 1941 at 1951.

23
entitled to be registered as a voter at any such election‖.24Further, section 19 read with

Section 26 of the Representation of People Act of 1951 clarify that ―every person who

is mot less than eighteen years of age on the qualifying date 25 and is ordinary

resident26 in a constituency, shall be entitled to be registered in the electoral roll in that

constituency.‖ 27 Thus, the right to vote is dependent on minimum age and the

residence constituency and to maintain the voting principle of one vote-one value, the

law provides that a person is entitled to be registered in the electoral roll only in one

constituency28 or in any constituency not more than once.29

2.2.2 Fundamental Principle of Elections

Some of the fundamental principles of elections to the State Legislative

Assemblies and Lok Sabha are states as follows:

1. For every territorial constituency, there is only one general electoral roll.30The

Indian Constitution abolishedthe communal representation and separate

electorates which was existed during the pre-constitution era.

2. No person is ineligible for inclusion in the electoral roll on the grounds only on

religion, race, caste, sex or any of them.31 The electoral roll is prepared on the

basis of secularism and equality.

3. 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.32 The

fundamental principle behind this provision is Art.15 of the Constitution of

24
the Constitution of India, art 326.
25
The ―qualifying date‖ in relation to the preparation or revision of electoral roll is the 1 st day of January
of the year in which it is so prepared or revised. (Section 14 of 1950 Act).
26
The Representation of People Act, 1951, s. 20.
27
Id atss. 19, 26.
28
Id at s. 17.
29
Id at,s. 18.
30
The Constitution of India,art. 325.
31
Id at,art. 325
32
Id at,art. 325.

24
 India which bans the discrimination against any citizen on the grounds of

religion, sex, etc. in political rights as well as other Rights.

4. Elections are held on the basic of adult suffrage, that is to say, ―every person

who is (i) a citizen of India, (ii) not less than 18 years of age on a date

prescribes by the legislature, and (iii) 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‖.33

The Constitution of India has laid down a few conditions which a person

has to fulfil to be enrolled as a voter, such as, ―a person is disqualified for

registration in the electoral roll of a constituency for Assembly or the Lok

Sabha if – (i) he is not a citizen of India, or (ii) has been declared to be of

unsound mind by a competent court, or (iii) is disqualified from voting under a

law relating to corrupt and illegal practices and other offences in connection

with elections. From these provisions we have seen that only a citizen of India

can be a voter.‖ Further, if a person is not a citizen of India and is already

enrolled as a voter, then his name cannot be removed from the roll unless the

concerned officer has given him a reasonable opportunity of being heard

according to the principles of natural justice.34

5. The citizen of India can registered their name in the electoral roll only in one

constituency and any person who is any specified offences punishable with

imprisonment, or who upon the trial of an election petition is found guilty of

any corrupt practice, is disqualified for voting at any election for 6

years.Subject to these conditions, every citizen of India, who is not less than

33
The Constitution of India, art. 326.
34
LalBabu Hussein v. Electoral Registration Officer, AIR 1995 SC 1189, 1194: (1995) 3 SCC 100.

25
 18 years of age, and is ordinarily resident in a constituency, is entitled to be

registered in the electoral roll for that constituency.

6. There is no reservation of seats in any House on the bases of community,

section, religious group except for Scheduled Castes, Schedules tribes and

Anglo-Indians.35

2.2.3 Legislative power regarding elections under the Indian Constitution.

The Indian Constitution specifically confers legislative power on Parliament

with respect to election matters. The parliament is empowered by law and has the

authority to divide each state into territorial constituencies after each census for

purposes of election to the Lok Sabha36 and the State Legislature Assembly.37

The Indian Constitution under Article 327 provides that the Parliament to

make provisions with respect to all matters relating to, or in connection with,

elections to either House of Parliament or to the State Legislation including the

preparation of electoral rolls, the delimitation of constituencies, and all other

matters necessary for securing the due Constitution of the several Houses.38 This

provision is reinforced by entry 72 in List I of the Constitution with respect to all

matters relating to the elections to either House of Parliament, or to the House or

either House of the Legislature of a State subject to the provisions of the

Constitution.

The Indian Constitution empowered the parliament with a supreme legislative

power to regulate the election in India. Article 328 states that subject to the

constitutional provisions, and in so far as provision has not been made by

Parliament with respect to all matters, a State Legislature may make provision by

35
The Constitution of India,art.330, 331.
36
Id at,art. 82.
37
Id at, art.170(3).
38
Id at,art. 327.

26
 law with respect to all matters in relation to, or in connection with, the elections to

either of its Houses including the preparation of electoral rolls and all matters

necessary for securing the due Constitution of such House or Houses. 39 This

provision is reinforced by entry 37 in List II of the Constitution of India.

The parliament through the power confer to them by the Constitution of India

has enacted The Delimitation Commission Act, 1952, The Representation of the

People Act, 1950 and The Representation of people Act, 1951. The Delimitation

Act, talks about the adjustment of seats and division of states into territorial

constituencies etc. The 1950 Act, provides for allocation of seats and the

delimitation of constituencies for the purpose of elections to the Lok Sabha and the

State Legislature, the qualifications of voters at such elections, the preparation of

electoral rolls etc. The 1951 Act, states ―the qualifications and disqualifications for

membership of those Houses, the corrupt and illegal practices and other election

offences and the stages connected with elections to the various legislatures in the

country.‖40

The Election Commission (EC) has no legislative power, as such, in relation to

elections. The Commission can issue directions. In Lakshmi Charan Sen v.

A.K.M. Hussain Ujjaman41 the Supreme Court has observed that the directions

issued by the Election Commission to the electoral officers are binding upon such

officers but such directions have no force of law so as to create rights and

liabilities between the contestants of election. The Court has explained the

position as follows: ―There is no provision in any statute which would justify the

proposition that the directions given by the Election Commission have the force

of law. Election laws are self-contained codes. One must look to them for
39
The Constitution of India, art.328 .
40
Ponnuswami N.P v. Returning Officer, AIR 1951 SC 64.
41
AIR 1985 SC 1233.

27
 identifying the rights and obligations of the parties. In the absence of a statutory

provision, the directions issued by the Election Commission cannot be equated

with law. The Election Commission is entitled to act ex debitojustitiae, in the

sense that, it can take steps or direct that steps to be taken over and above those

which it is obligated to take under the law. It can therefore, issue directions to the

Chief Electoral Officers (CEO). These directions are binding on those officers,

but their violation cannot create rights and obligations unknown to the Election

law. ‗We are of the opinion‘, said the court, that the directions issued by the

Election Commission, though binding upon the Chief Electoral Officers, cannot

be treated as if they are law, the violation of which could result in the invalidation

of the election, either generally, or specifically in the case of an individual.‖

In Kanhaiya Prasad Sinha v union of India42 , the court held that the state

government cannot ignore the direction of the Election Commission, as the legal

effect of any direction issued by the Commission comes from Art.324 of the

Constitution of India. In case the government fails to respect the directions, then

the Court may examine the matter and pass appropriate orders.

2.2.4 Election Dispute under the Constitution of India

The Constitution of India, under Article 329(a) lays down that

―notwithstanding anything in the Constitution, the validity of any law relating

to the delimitation of constituencies, or the allotment of seats to such

constituencies made, or purporting to be made under article 327 or 328 of the

Constitution of India shall not be called in question in any court‖.43

The Article 329 (a) of the Constitution of India mentioned it clear that

any orders regarding the delimitation of constituencies made by the

42
AIR 1990 Pat 189.
43
The Constitution of India, art.329 .

28
 Delimitation Commission and published in the official gazette could not be

questioned in a court of law. 44 The word ‗notwithstanding anything in the

constitution‘ which is mentioned in the section explain that this clause overrule

everything else in the Constitution.

Article 329(b) of the Constitution states that ―notwithstanding anything

in the Constitution, no election to either House of Parliament or to a House of

a State Legislature 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 the appropriate legislature.‖45A suit or a writ petition

would never be a reason to set aside an election.46The Supreme Court observed

in Durga Shankar 47 , ―The non-obstante clause with which Art 239 of the

Constitution begins....... debars us, as it debars any other court in the land, to

entertain a suit or a proceeding calling in question any election to the

parliament or the State Legislature.‖

The principle of Article 329 (b) of the Constitution is that, the disputes

arise out of any election should be postponed and should be raise only after the

election is over sp as not to disrupt the time schedule for the completion of

election. Further, Article 329(b) of the Constitution bars any interference by

the courts.48 However, The Representation of the People Act, 1951, provides

for the election tribunals to decide on the disputed matter related to elections

but the Act did not provide any judicial review of the decisions of the elections

tribunals. Section 105 of the Representation of People Act states that ―Every

order of the Tribunals made under this act shall be final and conclusive,‖ and

44
Meghraj Kothari v. Delimitation Commission, AIR 1867 SC 669: (1967) 1 SCR 400.
45
The Constitution of India, art.329 (b).
46
Hari Vishnu Karnath v. Ahmad, AIR 1855 SC 233 : (11955) 1 SCR 1104.
47
Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520: (1955) 1 SCR 267.
48
Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216: AIR 2000 SC 2979.

29
 now this section was repeal by the ―Representation of the People (Second

Amendment) Act, 1956 (27 of 1956), section 58 (w.e.f. 28-8-1956).‖ Before

1956 the elections tribunal was established to keep the courts out of the area of

elections disputes but the courts however extending its supervision over the

election tribunals.

In case of Ponnuswami 49 which was the landmark judgement on the

interpretation of Art 329 (b) is which bars ‗judicial intervention‘ with the

election process. In this case, the returning officer rejected the nomination

paper of the appellant who is a candidate for an election to the State Assembly

on certain grounds. The question was whether the candidate could challenge

the decision of the returning officer through a writ petition under Art 226. The

Supreme Court answered in the negative. Keeping in view the phrase of Art

329(b) of the Constitution, the Supreme Court declared that ―the courts were

barred from dealing with any matter arising while the elections were in

progress, and till an election petition was disposed of by an election tribunal

but not thereafter. The courts would not interfere with the process of election,

i.e., from the time the notification is issued till the election petition is disposed

of. Any irregularity committed during the course of election could be

challenged through an election petition after the election was over‖.50

Article 329(b) of the Constitution of India intension is to exclude the

jurisdiction of all courts with regards to election matters.This provision intends

to lay down the mode through which an election can be challenged. Any

matter related to election should be brought up only before election tribunal at

49
Ponnuswami N.P v. returning Officer, AIR 1952 SC 64.
50
Ibid.

30
 appropriate manner and not before any court. In Ponnuswami case, the Court

explained the reason for as follows:

―It does not require much argument to show that in a country with

democratic Constitution in which the legislatures have to play a very important

role, it will lead to serious consequences if the elections are unduly protracted

or obstructed‖.

The Supreme Court has laid stress on the Ponnuswami proposition,

from time to time. For example, the Court has observed in Lakshmi

CharanSenv.A.K.M Hassan Uzzaman.51

―......... though the High Court did not lack jurisdiction to entertain the writ

petition and to issue appropriate directions therein, no High Court in the exercise

of its power under Art 226 of the Constitution should pass any orders, interim or

otherwise which had the tendency or effect of postponing an election, which is

reasonably imminent and in relation to which the writ jurisdiction is invoked. The

High Courts must observe a self-imposed limitation on their power to act under

Article 226, by refusing to pass orders or give directions which will inevitably

result in an indefinite postponement of elections to legislative bodies, which are

the very essence of the democratic foundation and functioning of our

Constitution.‖

The non-interference of court in the election matter is not a judicial power

but a judicial policy and self-imposed discipline. However, once the proceedings

are instituted in accordance with Art 329(b) of the Constitution by presentation of

an election petition, the decisions of the tribunal has decided and the election

51
AIR 1985 SC 1233 : (1985) 4 SCC 689.

31
 petition has been disposed of by the election tribunal, its decision is open to attack

in the same manner as the decision of any other tribunal.

Article 329(b) of the Constitution of India is limited only to set aside the

proceeding during election. As long as the poll process and the election is still

going on, the courts cannot interfere, however, the court can interfere after an

election through the election petition and also after the election tribunal had given

its decision on the election petition.

Further, after the commencement of our Constitution, the pattern to

addressed the lection petition would first be the tribunal; then come before the

High Court through a writ petition and lastly before the Supreme Court by way of

appeal under Art 13 of the Constitution of India. The three tier set-up was

recognised in 1956 through the amendment of the Representation of the People

Act, 1951.

Later, this three tier system was abolished by the recommendation of

Election Commission of India because it took a long time to finally decide the

election disputes. After the abolition of election tribunal, the election petition is

directly handed over to the High Courts with the expectation of speedy disposal of

election disputes as one step would be cut down. This transferred of election

petition to High Court happened in the year 1966 by amending the Representation

of the People Act, 1971. Therefore, ―The High Court now is a statutory tribunal to

decide election disputes with appeal to the Supreme Court. At present, there exist

the two tier systems to decide election disputes. Election Tribunals are no longer

appointed and the election petitions are heard directly by the High Court‘s 52 from

which an appeal may be taken to the Supreme Court under Art 132, 133 and 136.‖

52
H.M Trivedi v. V.B Raju, AIR 1973 SC 2602: (1974)3 SCC 415.

32
 Further, ―A High Court cannot entertain a writ petition on behalf of a

candidate whose nomination paper has been rejected by the returning officer as

this is a part of the election process and is covered by Art 329(b) of the

Constitution. The proper remedy for him is to fine an election petition after the

completion of the election.‖53

2.3 The Representation of the People Act, 1951 (R.P.A 1951)

The Constitution of India empowered Parliament to make provisions in the

matters relating to elections in India. The Parliament through this power given by the

Constitution enacted the Representation of the People Act, 1951 before the first

general elections. The Act provides various provisions to regulate the smooth

functioning of Indian democracy and also provide provision to check the electoral

corrupt practices, qualification and disqualification of members etc.

2.3.1 Qualification of candidate and member.

Under the chapter I and chapter II of the R.P.Act, 1951, it provide for the

qualification for the membershipof parliament or the legislature of State. The statutory

qualification of a candidate which was provided under the Act must be read down

with the constitutional qualification which lay down under article 84 of the

Constitution and states that ―a person shall be qualified to be chosen to fill a seat in

Parliament unless he is a citizen of India and makes and subscribes before some

person authorised in that behalf by the Election Commission an oath or affirmation

according to the form set for the purpose in the Third Schedule. He should, in case of

a seat in the Council of States, not less than thirty years of age and, in the case of a

seat in the House of the People, not less than twenty five years of age. He must also

possess such other qualifications as may be prescribed in that behalf by or under any

53
Ponnuswami case and also Sri Subrata Chatterji, AIR 1983 Cal. 436.

33
law made by Parliament.‖54 Similar qualifications have been laid down under Article

173 of the Constitution for membership to the State Legislature. Minimum age of

twenty five years is prescribed for being member of the Legislative Assembly and 30

years for being a member of Legislative Council.

According to Section 3 of the Representation of People Act 1951, it provides

for the qualifications for membership of the Council of States, it states that ―a person

shall not be qualified to be chosen as representative of any State or union territory in

the Council of States unless he is an elector for a Parliamentary constituency in

India.‖55 Section 4 of the R. P Act, 1951 provides for the qualification for membership

of the House of the People which states that ―a person shall not be qualified to be

chosen to fill a seat in the House of the People unless—(a) he should, in the case of a

seat reserved for the Scheduled Castes in any State, he is a member of any of the

Scheduled Castes, whether of that State or of any other State, and is an elector for any

Parliamentary constituency; (b) he should, in the case of a seat reserved for the

Scheduled Tribes in any State (other than those in the autonomous districts of Assam),

he is a member of any of the Scheduled Tribes, whether of that State or of any other

State (excluding the tribal areas of Assam), and is an elector for any Parliamentary

constituency; (c) he should, in the case of a seat reserved for the Scheduled Tribes in

the autonomous districts of Assam, he is a member of any of those Scheduled Tribes

and is an elector for the Parliamentary constituency in which such seat is reserved or

for any other Parliamentary constituency comprising any such autonomous district;

and (d) he should, in the case of any other seat, he is an elector for any Parliamentary

constituency‖.

54
The Constitution of India,art. 84.
55
The Representation of People Act, 1951, s. 3.

34
 Section 5 and Section 6 of the R.P Act, 1951 provides for the qualification for

membership of a Legislative Assembly and Legislative Council respectively. Section

5 of the R.P Act, 1951 states that ―a person shall not be qualified to be chosen to fill a

seatin the Legislative Assembly of a State unless—(a) in the case of a seat reserved for

the Scheduled Castes or for the Scheduled Tribes of that State, he is a member of any

of those castes or of those tribes, as the case may be, and is an elector for any

Assembly constituency in that State; (b) in the case of a seat reserved for an

autonomous district of Assam, he is a member of a [Scheduled Tribe of any

autonomous district] and is an elector for the Assembly constituency in which such

seat or any other seat is reserved for that district; and (c) in the case of any other seat,

he is an elector for any Assembly constituency in that State:‖

Provided that for the period referred to in clause (2) of article 371A of the

Indian Constitution, ―a person shall not be qualified to be chosen to fill any seat

allocated to the Tuensang district in the Legislative Assembly of Nagaland unless he is

a member of the regional council referred to in that article.‖

Section 6 states that (1) ―a person shall not be qualified to be chosen to fill a

seat in the Legislative Council of a State to be filled by election unless he is an elector

for any Assembly constituency in that State. (2) A person shall not be qualified to be

chosen to fill a seat in the Legislative Council of a State to be filled by nomination by

the Governor unless he is ordinarily resident in the State.‖

Thus the purpose behind the fixing the legal qualification for the position or

membership of Legislature or Parliament is that only competent and fit persons should

occupy a seat in democratic institutions which has a dominant role of making laws for

the country. Therefore, a person who wants to produce his candidature for the

membership of Parliament or the Legislature of a States must have to accomplish

35
certain qualifications as regards his age, residence, citizenship, etc. and he must not

suffer from certain disqualifications for such membership.

2.3.2 Disqualification for the membership

The disqualification for the Membership of Parliament and the State

Legislature has been provided under the chapter III of The Representation of the

People‘s Act, 1951. Firstly, a member is disqualified on the conviction for certain

offences and section 8 of the said Act provides for such disqualification. Section 8,

provides that ―such person who is convicted of an offence shall punishable under

section 153-A of Indian Penal Code, (offence of promoting enmity between different

groups on ground of religion, race, place of birth, residence, language etc., and doing

acts prejudicial to maintenance of harmony) or section 171-E (offence of bribery) or

section 171-F (offence of undue influence or personating at an election) or sub-section

(1) or sub-section (2) of section 376 or section 376-A or Section 376-B or section 376-

C or section 376-D ( offences relating to rape) or section 498-A (offence of cruelty

towards a woman by husband or relative of a husband) or sub-section (2) or sub-

section(3) of section 505 (offence of making statement creating or promoting enmity,

hatred or ill-will between classes or offence relating to such statement in any place of

worship or in any assembly engaged in the performance of religious worship or

religious ceremonies) of the Indian Penal Code, 1860;‖56

The person shall also be disqualified when he convicted of an offence under

the Protection of Civil Rights Act, 1955 (22 of 1955), Which provides ―for

punishment for the preaching and practice of ―untouchability‖, and for the

56
The Representation of People Act, 1951, s. 8.

36
enforcement of any disability arising there from‖ 57 or Section 11 ―(offence of

importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962);‖58 or

―Sections 10 to 12 (offence of being a member of an association declared unlawful,

offence relating to dealing with funds of an unlawful association or offence relating to

contravention of an order made in respect of a notified place) of the Unlawful

Activities (Prevention) Act,1967 (37 of 1967);‖ 59 or ―The Foreign Exchange

(Regulation) Act, 1973 (46 of 1973);‖ 60 or ―The Narcotic Drugs and Psychotropic

Substances Act, 1985; (61 of 1985); or Section 3 (offence of committing terrorist acts)

or Section 4 (offence of committing disruptive activities) of the Terrorist and

Disruptive Activities (Prevention) Act, 1987 (28 of 1987).‖61

Section 7 ―(offence of contravention of the provisions of Sections 3 to 6) of the

Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988);‖62 or ―Section

125 (offence of promoting enmity between classes in connection with the election) or

Section 135 (offence of removal of ballot-papers from polling stations) or Section

135-A (offence of booth capturing) or clause (a) of sub-section (2) of Section 136

(offence of fraudulently defacing or fraudulently destroying any nomination paper) of

this Act,‖63 or ―Section 6 (offence of conversion of a place of worship) of the places of

Worship (Special Provisions) Act, 1991,‖64 or ―Section 2 (Offence of insulting the

Indian National Flag or the Constitution of India) or Section 3 (Offence of preventing

singing of National Anthem) of the Prevention of Insults to National Honour Act,

57
The Representation of People Act, 1951, s. 8 (b).
58
Id at, s. 8 (c).
59
Id at, s. 8 (d).
60
Id at, s. 8 (e).
61
Id at, s. 8 (g).
62
Id at, s. 8 (h).
63
Id at, s. 8 (i).
64
Id at, s. 8 (j).

37
1971 (69 of 1971)]‖ 65 or ―The Commission of Sati (Prevention) Act, 1987 (3 of

1988);‖ 66 or ―The Prevention of Corruption Act, 1988 (49 of 1988);‖ 67 or ―The

Prevention of Terrorism Act, 2002 (15 of 2002]‖68.

Section 8 of the R.P, act, disqualified a person when he or she is convicted and

is sentence as under:

―(i)only fine, for a period of six years from the date of such conviction;

(ii) imprisonment, from the date of such conviction and shall continue to be

disqualified for a further period of six years since his release;‖69

Further a person convicted for the contravention of __

a) ―any law providing for the prevention of hoarding or profiteering; or

b) any law relating to the adulteration of food or drugs; or

c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961)‖.70

―The person who has been convicted and sentence to imprisonment for not less than

six months shall be disqualified from the date of such conviction and shall continue to

be disqualified for a further period of six years since his release.‖71

Further, section 8 of the R.P, Act 1951, states that, ―person shall be disqualified

if he is convicted of any offence and sentences to imprisonment for not less than two

years other than any offence referred to in subsection (1) or sub-section (2) of section

8 from the date of such conviction and shall continue to be disqualified for a further

period of six years since his release.‖72

65
The Representation of People Act, 1951, s. 8 (k).
66
Id at, s. 8 (l).
67
Id at, s. 8 (m).
68
Id at,s. 8 (n).
69
Id at, s. 8 (i), (ii).
70
Id at, s. 8 (2).
71
Id at, s. 8.
72
Id at, s. 8 (3).

38
 ―Notwithstanding anything in sub-section (1), (2) and (3) a disqualification

under either sub-section shall not, in the case of a person who on the date of the

conviction is a member of Parliament or the Legislature of a State, take effect until

three months have elapsed from that date or, if within that period an appeal or

application for revision is brought in respect of the conviction or the sentence, until

that appeal or application is disposed of by the Court.‖73

Also this section should be read with Article 102 and Article 191 of the

Constitution of India provide that ―a person shall be disqualified for being chosen in

and for being a member of either House of Parliament or Legislature of State

respectively if –

(a) he holds any office of profit under the Government of India or the

Government of any State, other than an office declared by the Legislature of the State

or Parliament by law not to disqualify its holder;

(b) he is of unsound mind and stands so declared by a competent court;

(c) he is an undischarged insolvent;

(d) he is not a citizen of India, or has voluntarily acquired the citizenship of a

foreign State or is under any acknowledgement of allegiance or adherence to a

foreign State;

(e) he is so disqualified by or under any law made by Parliament.

(f) A person shall be disqualified for being a member of the Legislative

Assembly or Legislative Council of a State or either house of the Parliament if

he is so disqualified under the Tenth Schedule.‖74

73
The Representation of People Act, 1951, s. 8 (4).
74
The Constitution of India, art.102, 191.

39
 Another ground for disqualification for the membership is provided on section

8-A of the R.P. A 1951, is on the ground of corrupt practices, which states that―every

person found guilty of a corrupt practice by an order under Section 99 shall be

submitted, as soon as may be within a period of three months from the date such order

takes effect], by such authority as the Central Government may specify in this behalf,

to the President for determination of the question as to whether such person shall be

disqualified and if so, for what period:

Provided that the period for which any person may be disqualified under this sub-

section shall in no case exceed six years from the date on which the order made in

relation to him under section 99 takes effect.‖75

Further section 8-A states that ―any person under this section stand disqualified

immediately before the commencement of the Election Laws (Amendment) Act, 1975

(40 of 1975), and if the period of such disqualified has not expired, a person may

submit a petition to the President for the removal of such disqualification for the

unexpired portion of the said period and the President before giving his decision on

any question under this section shall obtain the opinion of the Election Commission on

such question or petition and shall cat according to such opinion.‖76

Section 9 of the R. P. A, 1951 provides for disqualification for dismissal for

corruption or disloyalty. This section states that―a person who having held an office

under the Government of India or under the Government of any State has been

dismissed for corruption or for disloyalty to the State shall be disqualified for a period

of five years from the date of such dismissal.‖77 Further, ―for the purposes of sub-

section (1), a certificate issued by the Election Commission to the effect that a person

having held office under the Government of India or under the Government of a State,
75
The Representation of People Act, 1951, s. 8-A (1).
76
Id at, 1951,s. 8-A (2), (3).
77
Id at, 1951,s.9 (1).

40
has or has not been dismissed for corruption or for disloyalty to the State shall be

conclusive proof of that fact:78 Provided that no certificate to the effect that a person

has been dismissed for corruption or for disloyalty to the State shall be issued unless

an opportunity of being heard has been given to the said person.‖79

Also section 9-A of the R.P.A, 1951 provides for disqualification for

Government contracts, etc.—―A person shall be disqualified if, and for so long as,

there subsists a contract entered into by him in the course of his trade or business with

the appropriate Government for the supply of goods to or for the execution of any

works undertaken by, that Government. Where the contract has been fully performed

by the person by whom it has been entered into with the appropriate Government, the

contract shall be deemed not be subsist by reason only of the fact that the Government

has not performed its part of the contact either wholly or in part.‖80

The essential of this section is that in order to invoke the provisions of this

section the following grounds have to be conclusively established:

a) There must be a contract between the person against whom Section 9-

A is being invoked, and the State.

b) Such contract must have to be for execution of any works undertaken

by the Government.

c) Such contract must have been entered into with such person in the

course of his trade or business for the supply of goods to the State.

78
The Representation of People Act, 1951,s. 9 (2).
79
Id at,s. 9.
80
Id at, s. 9-A.

41
 d) Such contract must be subsisting on the date of filing of nomination

paper.81

However, section 9A of the Act does not cover a contract for the performance

of any services undertaken by the Government. If candidate enters into contract with

Government and contract subsists on the date of filling of nomination papers and the

date of scrutiny of nomination papers, candidate can be said to have incurred

disqualification. The purpose of section 9-A of the Act it is only to be seen that the

candidate has undertaken to do some work for the Government. For being disqualified

under section 9-A of the Act in respect of contract with the Government which is

subsisting on the date of nomination, two categories of the cases are there, i.e., (i)

when the contract is one for supply of goods to the appropriate Government; and (ii)

where the contract is for execution of any work undertaken by that Government.

Section 10 of the Act, provides for the disqualification for office under

Government Company. It states that, ―a person shall be disqualified is, and for so long

as, he is a managing agent, manager or secretary of any company or corporation (other

than a co-operative society) in the capital of which the appropriate Government had

not less than twenty-five percent share.‖82 This section disqualified only the Managing

Agent, Secretary or Manager of any company, in the capital of which the appropriate

Government has not less than 25% share holding.

Another disqualification under the act is ―disqualification for failure to lodge

account of election expenses‖. Section 10-A of the R.P.A, 1951states that ―if the

Election commission if is satisfied that a person (i) has failed to lodge an account of

election expenses within the time and in the manner required by or under this Act, and

(b) had no good reason or justification for the failure. The Election Commission shall,
81
Somnathrath v. Bikaram Keshari Arukh, AIR 1999 Ori 119 at 124.Also K. Venkatachalam v.
Swamickan(1999) 5 SRJ 293.
82
The Representation of People Act, 1951, s. 10.

42
by order published in the Official Gazette, declares him to be disqualified and any

such person shall be disqualified for a period of three years from the date of the

order.‖83 Where the candidate failed to submit account of election expenses within the

stipulated period of the specified authority, he also failed to submit explanation for

same after receipt of show cause notice, order for disqualification of such candidate on

this ground was held proper and there was no question of holding enquiry or

observing principles of natural justice.

Referring to section 10-A of the R.P.A, 1951this section enables the Election

Commission to disqualify a person only who had failed to lodge an account of election

expenses within the time and in the manner required or under the Act not a situation

arising from failure to maintain true and correct accounts.84

Further, Section 11 of the R.P.A provides for removal or reduction of period of

disqualification, it states that―the Election Commission may for reason to be recorded,

remove any disqualification under chapter III of the Act, except under section 8A or

reduce the period of any such disqualification.‖85

The Representation of People Act, 1951, also provides provision for

disqualification for voting. Section 11-A provides disqualification arising out of

conviction and corrupt practices. This section ―disqualify a person if he is convicted of

an offence punishable under section 171-E or section 171-F of the Indian Penal

Code1860, or under section 125 or section 135 or clause (a) of sub-section (2) of

section 136 of this Act, he shall for a period of six years from the date of the

conviction or from the date on which the order take effect, be disqualified for

83
The Representation of People Act, 1951, s. 10A.
84
R.N. Choudhry,Election Laws and Practice in India 263(Orient Publishing Company, New Delhi,
4thedn, 2016).
85
The Representation of People Act, 1951, s. 11.

43
voting.‖86 Further, clause 2 of section 11A state that ―a person may be disqualified

from voting by a decision of the President under sub-section (1) of section 8A for any

period.‖87―The decision of the President on a petition submitted by any person under

sub-section (2) of Section 8A in respect of any disqualification for being chosen as,

and for being, a member of either House of Parliament or of the Legislative Assembly

or Legislative Council of a State shall, so far as may be, apply in respect of the

disqualification for voting at any election incurred by him under clause (b) of sub-

section (1) of section 11A of this Act as it stood immediately before the

commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), as if such

decision were a decision in respect of the said disqualification for voting also.‖The

last section which talks about disqualification is the removal of disqualification,.

Section 11B of the R.P.A, 1951, provides power to the Election Commission to

remove any disqualification for voting under sub-section (1) of section 11A.

2.3.3 Corruption practices under the Representation of People Act, 1951.

One of the biggest lacunas in our democracy system is that when our

representative is not genuine person and has committed various crimes and

offences including corruptions. This problem is not a new issue but it has been

in our system since time immemorial and the Representation of People Act,

1951 has provided the provision to cope up with this problem. The main aim of

our constitution is to conduct free and fair elections, therefore, one of the

essentials of our elections laws is to protect the people by elected an evil or

dishonest or immoral practices. The 1951 Act deals with corrupts practices and

section 2(c) of the Representative Act 1951, states that ―corrupt

86
The Representation of People Act, 1951, s. 11A (1).
87
Id at, s. 11A (2).

44
 Practicesmeans any of the practices specified in Section 123‖88 and According

to section 123 of the Act, various corrupt are bribery 89 , undue influence 90 ,

appeal on the ground of religion, race, caste, community or language and the

use of appeal to religious or national symbols,91 promotion of enmity or hatred

between different classes of citizens on the ground of religion, race, caste,

92 93
community or language, Propagation of sati, publication of false

statements,94 hiring of vehicles or vessels,95 incurring excessive expenditure,96

procuring the assistance of government servants,97 and booth capturing.98

Bribery

Any gratification made with intent to pollute the purity of elections may cover

within the corrupt practice of bribery defined under sub-section (1) of section 123 of

the Representation of People Act, 1951. Section 123(1) states that, ―Bribery, that is to

say

(A) any gift, offer or promise by a candidate or his agent or by any other

person with the consent of a candidate or his election agent of any gratification, to any

person whomsoever, with the object, directly or indirectly of inducing

(a) a person to stand or not to stand as, or [to withdraw or not to withdraw]

from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election, or as a reward to—

88
Id at, s. 2(c).
89
Id., s.123(1).
90
Id.,s. 123 (2).
91
Id., s. 124 (3).
92
Id.,s. 123 (3A).
93
Id., s. 123 (3B).
94
Id.,s. 123 (4).
95
Id., s. 123 (5).
96
Id., s 123 (6) .
97
Id., s. 123 (7) .
98
Id., s. 123 (8) .

45
 (i) a person for having so stood or not stood, or for [having withdrawn or not

having withdrawn] his candidature; or

(ii) an elector for having voted or refrained from voting;

(B) the receipt of, or agreement to receive, any gratification, whether as a

motive or a reward

(a) by a person for standing or not standing as, or for [withdrawing or not

withdrawing] from being, a candidate; or

(b) by any person whomsoever for himself or any other person for voting or

refraining from voting, or inducing or attempting to induce any elector to vote

or refrain from voting, or any candidate [to withdraw or not to withdraw] his

candidature.‖

―Explanation.—For the purposes of this clause the term ‗gratification‘ is not

restricted to pecuniary gratifications or gratifications estimable in money and it

includes all forms of entertainment and all forms of employment for reward

but it does not include the payment of any expenses bona fide incurred at, or

for the purpose of, any election and duly entered in the account of election

expenses referred to in section 78.‖99

Before 1958, acceptance of gift does not include bribery under section 123 of

the R.P Act, 1951 but after the judgement in case S.B. Adityan v S. Kandaswami100 ,

section 123 of the R.P Act, 1951 was amended to the effect that now giving and

acceptance both are corrupt practices if gratification is linked with the object, directly

or indirectly, of inducing any voter or candidate from free and fair participation in

elections.101

99
The Representation of People Act, s. 123.
100
AIR 1958 SC 857.
101
Clause (1) of section 123 was substituted by the Representation of People (Amendment) Act, 1958.

46
 Whether employment, entertainment, treating and charity for the purpose of

elections falls under section 123 of the Representation of Act or not? However, it

depends on the motive and gratification of the act. In the case of Mohan Singh v.

Bhanwar Lal,102 the returned candidate had offered to help one of the other candidates

to get employment in sugar factory or elsewhere and it was alleged that offer was in

order to induce him to withdraw his nomination. The Supreme Court in this case held

that ―the acceptance of offer which constitutes a motive or reward for withdrawing

from the candidature must be an acceptance of gratification or a thing of some value

though not necessarily estimate in terms of money. But a mere offer to help in getting

employment is not such offer of gratification within the meaning of section 123 (1)(B)

as to constitute it a corrupt practice.‖103 There must be something more than the mere

offer of help to secure employment. But Orissa High Court in Subodh Kumar Bouria

v. B.C. Mohanty 104 held that if the offer to secure employment is definite, the

acceptance of it would constitute corrupt practice.

Under the Indian Law, treating the people as in providing any meat, drink or

entertainment during election is not clearly defined as corruption practice whereas

under the English Law treating intended to secure general popularity is a corruption

practice.105In the case of Bhushan v. Anand Brahma106 where it was alleged that the

returned candidate distributed sweets to school children with the express object of

influencing the voters. However, the expenses incurred in this regard were included in

the return of election expenses. In his testimony, the returned candidate said that

whenever he visited those places it was his habit to give some money for distribution

102
AIR 1976 SC 1366.
103
Ibid.
104
49 ELR 360.
105
Anand Ballabh Kafaltiya, Democracy and Election Laws 185-186 (Deep & Deep Publications .Pvt.
Ltd, New Delhi, 2003)
106
AIR 1961 All 356.

47
of sweets among the children. The Allahabad High Court rejected the contention that

English law should be followed in this case. It was held that the object behind the

distribution of sweets among the children might be to make the returned candidate to

request their parents to vote for him. This seems to be an indirect inducement of

electors which certainly construe a corrupt practice107 of bribery within the meaning of

the section 123 of the Representation of People Act 1951.

Further, in the case of Satla Devi v. Birendra Singh108the returned candidate

attended the public meeting and the auspicious digging ceremony a well in a village

and addressed the meeting by promising to have a well for Harijans constructed in that

village. However, he did not make any promise to give any financial help to the

Harijans in the village nor there was a corrupt motive in it. The Division Bench of the

Madhya Pradesh High Court held that neither the pleadings nor the proof have

established the corrupt practice. Thus all kinds of charitable donations cannot be

bribery. It is the intention or object behind the payment which prevails while dealing

with cases of charity and its depends on the facts and circumstances of each case

whether ill-motive could be inferred or not.

Undue Influence

Section 123 (2) of the R.P A,1951 prohibited any situation in which choice of

candidate on merit is affected due to extraneous consideration like social, economic,

political or religious constrains or any type of treat, fear or duress or falsehood which

impedes or prevents the free exercise of the franchise of an elector. Sub-section (2)

states that ―Undue influence, that is to say, any direct or indirect interference or

attempt to interfere on the part of the candidate or his agent, or of any other person

107
Section 123(1) clearly states—―Any gift or promise by a candidate or his agent or by any other
person with the consent of a candidate or his election agent gratification, to any person whomsoever,
with the object directly or indirectly of influencing –(b) an elector to vote or refrain from voting at an
election‖.
108
AIR 1961 M.P. 127.

48
[with the consent of the candidate or his election agent], with the free exercise of any

electoral right.‖109

The meaning of undue influence under section 123 (2) of the R.P. A, 1951 is

wide in its connotation than under the Indian Contract Act 1872 or the English law.

Under the Representation Act, it widely covers all kinds of fraudulent acts or

omissions which in any way directly or indirectly interfere with the exercise of any

electoral right.110

The Gujarat High Court in the case of Lal Singh v. Vallabhdas111 observed that

―section 123 (2) of the R.P.A, 1951 is designed to ensure freedom to the elector to

choose a candidate of his own choice. It is designed to prevent persons from deflecting

the elector from enjoying that freedom by influencing him in a manner which would

be regarded to be undue, that is by creating an atmosphere or situation in which the

choice of candidates will be made not on the merits of the candidates or their parties

or their programmes and instead selecting them on extraneous considerations such that

a selection would affect spiritually adversely them, or their kith and kin or persons in

whom they are interested or would create a feeling in them that they would personally

stand to gain or lose in matters which do not relate to policies or programmes on

which governments are run if they cast their vote in favour or against a particular

candidate.‖

Supreme Court in the case of Babu Rao Patel v. Zakir Hussain112 observed and

stated that ―section 123(2) of the Representation of People‘s Act is pari-materiathe

same as defined in Section 171-C of the Indian Penal Code,113 excepts that the words

109
The Representation of People Act, 1951, s. 123(2).
110
Supra note 80 at 199.
111
AIR 1967 Guj. 62, 69.
112
AIR 1968 SC 904, 910-11.
113
Section 171-C of the Indian Penal Code 1860 reads:

49
‗direct or indirect‘ have been added to indicate the nature of interference or attempt as

interference with the free exercise of any electoral right. Any voluntarily action which

interferes with or attempts to interfere with such free exercise of electoral right would

amount to undue influence.‖

Thus, the first part of section 123(2) of the provision is general and covers all

possible forms of undue influence whereas clauses (i) and (ii) of proviso (a) of Section

123(2) constitute an irrebutable presumption.114

Appeal on grounds of caste, race, community or religion

Sub-section (3) of Section 123 states that ―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 or the national emblem, for the furtherance

of the prospects of the election of that candidate or for prejudicially affecting the

election of any candidate‖ 115 is deemed to be a corrupt practice. Before the 1961

Amendment, Section 123(3) of the Representation of People‘s Act, 1951 was as

follows: ―The systematic appeal by a candidate or his agent or by any other person, to

vote or refrain from voting on grounds of caste, race, community or religion, or the

use of or appeal to religious symbols or the use of, or appeal to national emblem, for

―1. Whoever voluntarily interferes or attempts to interfere with the free exercise of any
electoral right, commits the offence of undue influence at an election;
2. Without prejudice to the generality of the provisions of sub-section (1), whoever—(a)
threatens any candidate or voter, or any person in whom candidate or voter is interested, with
injury of any kind, or (b) induces or attempts to induce a candidate or 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 interfere with the free exercise of the electoral right of such candidate or voter,
within the meaning of Sub-section (1).
3. A declaration of public policy or a promise of public action, or the mere right of a legal right
without intend to interfere with an electoral right shall not be deemed to be interfere within the meaning
of this Section.‖
114
Supra note 80 at 201.
115
The Representation of People Act, 1951, s.123(3).

50
the furtherance of prospects of that candidate‘s election.‖ The 1961 Amendment

deleted the word ‗systematic‘, resultantly the scope of the provision has been enlarged

and not even single appeal by candidate or his election agent would be a corrupt

practice.116

The purpose of this section is that to prohibit making appeal to the religious,

ethnic and linguistic sentiments of the people or by arousing feelings of enmity or

hatred among different classes of citizens. India is a country with diverse culture and

the people belonging to different religions, races, castes, creeds or languages and to

influences and disintegrate the people is very easy because of all these differences.

Therefore this provision aim to protect the dis-unity and chaos of our country, the

section 123(3) of the Representation of the People Act, is in line with the feature of

the Constitution to protect the unity, integrity and secularism of the nation. In the case

of S.R. Bommai v. Union of India,117 the Supreme Court in this context laid down that

―introduction of religion into politics is not merely in negation of Constitutional

mandate but also a positive violation of Constitutional obligation, duty, responsibility

and positive prescription or prohibition specifically enjoined by the Constitution and

the R.P. Act, 1951. A political party that seeks to secure power through a religious

policy or caste orientation policy, disintegrates the people on grounds of religion and

caste. It divides the people and disrupts the social structure on grounds of religion or

caste which is obnoxious anathema to the Constitutional culture and basic features.‖

However, the Constitutional Validity of section 123(3) and (3A) was

challenged in the case of Subhadh Desai v. Sharad J. Rao118on the ground that these

provision was violative of the right of freedom of religion under Article 25 of the

Constitution of India. The Supreme Court rejected the petition and held that ―when the
116
Harcharan Singh v. Sajjan Singh, AIR 1985 SC 236.
117
AIR 1994 SC 1918.
118
AIR 1994 SC 2277.

51
framers of the Constitution guaranteed every citizen, right of freely profess, practice

and propagate his religion, that right does not extend to creating hatred amongst two

groups of persons of different religions.‖ Sub-section (3) and (3A) of section 123,

never purport to curb the right guaranteed by Article 25 of the Constitution.

Again this sub-section was challenged in the case of Dr. Ramesh Yashwant

Prabhoo v. Prabhakar K. Kunte119, it was alleged that this section was violative of

guarantee of freedom of speech under Article 19(1)(a) of the Constitution. The

Contention was that for saving these provisions from constitutional invalidity, they

must be read for reasonable restriction in the interest of public order to get protection

of Article 19(2). In other words, unless a speech was prejudicial to the maintenance of

public order, it cannot fall within the mischief of either sub-section (3) or sub-section

(3-A) of section 123 of the Act. Placing reliance on Article 19(2) permitting State for

making laws and imposing reasonable restrictions in the interest of decency; the

Supreme Court observed that ―the ordinary meaning of decency indicates that the

action must be in conformity with the current standards or behaviour or propriety is

that an appeal for votes should not be made on the ground of the candidate‘s religion

which by itself is no index of the suitability of a candidate for membership of the

House. Thus, seeking votes at an election on the ground of the candidate‘s religion in

a secular state, is against the norms of decency and propriety of the society.‖

Further, Section 123(3) of the R.P. Act, 1951 prohibits not only religious

appeal during elections but it also prohibit appealing on the ground of caste,

community or race and it is considered as corruption practice under this provision. In

the case of N.Ramlingam v. M. Karunanidhi 120 the petitioner alleged that the

respondent spoke that he belongs to an inferior caste and higher caste people are

119
(1996) 1 SCC 130 at 153.
120
49 ELR 399.

52
interested to defeat him on that sole ground. Madras High Court has held that this

statement merely gives the identity of the candidate to the voters about his community

and is not sufficient to establish an appeal on the ground of his caste or community.

Introducing voters about the caste or community of the candidate is not a corrupt

practice. It appears that an appeal to vote on the ground of caste or community

depends on the motive or intention of the maker so as to cover it as a corrupt practice

under Section 123(3).

The section also prohibits appealing on the ground of language and was made

a corrupt practice. The Scope of section 123(3) is that corrupt practice includes when

an appeal is made either to vote or refrain from voting on the ground of candidate‘s

language. Further, the section also says that ―appeal to the religious symbols for the

use of or appeal to national symbols, such as national flag or the national emblem, for

furtherance of the prospects of the election of a candidate or for prejudicially affecting

the election of any other candidate‖121 shall be a corrupt practice. However, a proviso

is added to it I 1975 to clarify that no symbol allotted under the Representation of

People Act, 1951 to a candidate shall be deemed to be a religious symbol or national

symbol for the purposes of this clause. This proviso was inserted by Act No.40 of

1975, i.e after the judgement of Allahabad High Court in Mrs Indira Gandhi’s case122,

when appeal against the said judgement was pending in Supreme Court, and it was

given a retrospective effect.

121
The Representation of People Act, 1951, s. 123(3).
122
AIR 1975 SC 2299.

53
 Promoting of feelings of enmity or hatred between different classes of

Indian citizens

The new corrupt practice came to be inserted in the R.P, Act, 1951 for the first

time by the Representation of the People (Amendment) Act 1961. The new corrupt

practice was defined in Section 123(3A) as follows:

―The promotion of, or attempt to promote, feelings of enmity or hatred

between different classes of the citizens of India on grounds of religion, race, caste,

community, or language, by a candidate or his agent or any other person with the

consent of a candidate or his election agent for the furtherance of the prospects of the

election of that candidate or for prejudicially affecting the election of any candidate.‖

This provision is inserted in the act to prevent the hatred and communal enmity

among the different classes of people in India. Such divisive tendencies which

promotes enmity or hatred between different classes of citizens of India tend to create

public unrest and disturb public order. In the case of Das Rao Deshmukh (Dr) v.

Kamal Kishore Nanasaheb Kadam123 a poster contained an appeal to the voters to vote

for the appellant ―to teach the Muslims a lesson‖. The apex court held ―the poster to

be per se highly offensive and potentially vulnerable and likely to bring hatred and

misunderstanding between the Hindu and Muslim communities. The appeal in that

poster was likely to rouse passion in the minds of the voters on communal basis and

bring disharmony between the two communities offending the secular structure of the

country, so as to constitute the corrupt practice within the meaning of Section 123(3A)

and also Section123 (3).‖

123
(1995) 5 SCC 123.

54
 Propagation of Practice of Sati.

Corrupt practice on the ground of propagation or glorification of practice of

sati was introduced by inserted a new section 123(3B) in the 1951 Act, by the

enactment of the Commission of Sati(prevention) Act 1987 and the section reads as

follows:

―The propagation of the practice or the commission of sati or its glorification

by a candidate or his agent or any other person with the consent of the candidate or his

election agent for the furtherance of the prospects of the election of that candidate or

for prejudicially affecting the election of any candidate.‖

―Explanation.—For the purposes of this clause, ‗sati‘ and ‗glorification‘ in

relation to sati shall have the meanings respectively assigned to them in the

Commission of Sati (Prevention) Act, 1987 (3 of 1988).‖

The object of this section is to abolish the practice of sati and any

person/candidates or agent of the candidate will be disqualified on the ground of

corrupt practice if he or she commits or practice sati.

Publication of False Statements.

Section 123(4) of the Representation of the People Act‘s 1951 states that ―The

publication by candidate or his agent or by any other person with the consent of a

candidate or his 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

candidate‘s election‖, shall be deemed to be a corrupt practice. This section will attract

when the following ingredients exist:

55
 i. There should be publication of any statement of fact by a candidate or

his agent or by any other person with the consent of that candidate or

his agent.

ii. That the statement of fact is false and the candidate believes it to be

false or does not believe it to be true.

iii. That the statement is in relation to the personal character or conduct of

another candidate.

iv. That the said statement is one being reasonably calculated to prejudice

the prospects of the other candidate‘s election.

In the case of Kumara Nand v. Brij Mohan Lal Sharma124the Court held that

the onus of providing the ingredients of section 123(4) of the R.P, Act 1951 is on the

election petitioner who alleged the commission of corrupt practice. However, if the

election petitioner asserted and stated on oath that the statement of fact published by

the returned candidate was false and the said statement had been published by the

returned candidate knowing it to be false or believing it not to be true, it would be

deemed that the election petitioner has discharged the initial onus which rest on him.

Then, the onus shift to the other side.

Free Conveyance of Voters

Further, sub-section (5) of section 123 of the R.P.A, 1951 states that ―the

hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a

candidate or his agent or by any other person (with the consent of a candidate or his

election agent) or (the use of such vehicle or vessel for the free conveyance) of any

elector (other than the candidate himself the members of his family or his agent) to or

124
1967 AIR 808 SCR (2) 127.

56
from any polling station provided under section 25 or a place fixed under sub-section

(1) of section 29 for the poll:

Provided that the hiring of a vehicle or vessel by an elector or by

several electors at their joint costs for the purpose of conveying him or them to

and from any such polling station or place fixed for the poll shall not be

deemed to be a corrupt practice under this clause if the vehicle or vessel so

hired is a vehicle or vessel not propelled by mechanical power:

Provided further that the use of any public transport vehicle or vessel or

any tramcar or railway carriage by any elector at his own cost for the purpose

of going to or coming from any such polling station or place fixed for the poll

shall not be deemed to be a corrupt practice under this clause.

Explanation.—In this clause, the expression ‗vehicle‘ means any

vehicle used or capable of being used for the purpose of road transport,

whether propelled by mechanical power or otherwise and whether used for

drawing other vehicles or otherwise125.

This sub-section prohibits the hiring or procuring of the vehicles or

vessels for transportation of voters to or from the polling stations as this may

cause bad influence on voters and thereby hamper free exercise of their

franchise. In the case of Jasbha Chunibhai Patel v. Anverbeg126 the vehicle

was procured either by the political party to which the returned candidate

belonged or by some private person. It was also proved that the vehicle was

used for conveyance of three lady voters. However, there was no evidence

regarding free conveyance of the ladies. While considering the ambit of the

provision, the Supreme Court observed that the section requires three things:

125
The Representation of People Act, 1951, s. 123(5).
126
AIR 1969 SC 586.

57
 (1) hiring or procuring of vehicles; (2) by a candidate or his agent etc; and (3)

for the free conveyance of an elector. It will be noticed that the section also

speak of the use of such vehicle which connects the two parts, namely hiring or

procuring of vehicle and the use. The requirement of the law therefore is that

in addition to providing the hiring or procuring and the carriage of electors to

and from any polling station, it should also be proved that the electors used the

vehicle free of cost to themselves.

The scope of the section is that to fall under the corrupt practice, it

requires to be proved by evidence to the effect that such vehicles were hired or

procured by the candidate personally or by any of his agents with his consent.

Further it has to be proved what was the total number of voters who were so

transported so as to give an indication of the fact that by that reason the

election was materially affected so far as the candidate hiring the vehicle is

concerned.127 A charge under this sub-section cannot be sustained unless it is

affirmatively established that the candidate consciously, deliberately or with

full knowledge had consented to or instructed free conveyance of voters in a

vehicle or vessel. If the identification of that vehicle is not made by proper

disclose of particulars in the petition, the complaint so far carrying the voters

to the polling station was concerned, cannot properly go for charge. 128

However, if there is circumstantial chain of evidence to show that the

candidate was employed many cars for the conveyance of voters then the

corrupt practice was held to have been established129.

127
Dasu Sinha v. Ram Lakhan Singh Yadav, 38 ELR 177.
128
Gajendhar v. Chunnilal Singh and others, 31 ELR 1.
129
R.M Seshadri v. G. VashantaPAi, AIR 1969 SC 692.

58
Incurring Unauthorised Expenditure

Non-disclosure of expenditure is a corrupt practice under sub-section

(6) of the section 123 of the R.P Act, 1951. It states that ―the incurring or

authorizing of expenditure in contravention of section 77.‖ Section 77 states

that ―Account of election expenses and maximum thereof.‖

(1) Every candidate at an election shall, either by himself or by his

election agent, keep a separate and correct account of all

expenditure in connection with the election incurred or authorised

by him or by his election agent between [the date on which he has

been nominated] and the date of declaration of the result thereof,

both dates inclusive. Explanation 1.—for the removal of doubts, it

is hereby declared that—

(a) the expenditure incurred by leaders of a political party on account

of travel by air or by any other means of transport for propagating programme

of the political party shall not be deemed to be the expenditure in connection

with the election incurred or authorised by a candidate of that political party or

his election agent for the purposes of this sub-section;

(b) any expenditure incurred in respect of any arrangements made,

facilities provided or any other act or thing done by any person in the service

of the Government and belonging to any of the classes mentioned in clause (7)

of section 123 in the discharge or purported discharge of his official duty as

mentioned in the proviso to that clause shall not be deemed to be expenditure

in connection with the election incurred or authorised by a candidate or by his

election agent for the purposes of this sub-section. Explanation 2.—For the

59
 purpose of clause (a) of Explanation 1, the expression ‗leaders of a political

party‘, in respect of any election, means,—

(i) where such political party is a recognised political party, such

persons not exceeding forty in number, and

(ii) where such political party is other than a recognised political party,

such persons not exceeding twenty in number, whose names have been

communicated to the Election Commission and the Chief Electoral Officers

(CEO) of the States by the political party to be leaders for the purposes of such

election, within a period of seven days from the date of the notification for

such election published in the Gazette of India or Official Gazette of the State,

as the case may be, under this Act: Provided that a political party may, in the

case where any of the persons referred to in clause (i) or, as the case may be, in

clause (ii) dies or ceases to be a member of such political party, by further

communication to the Election Commission and the Chief Electoral Officers of

the States, substitute new name, during the period ending immediately before

forty-eight hours ending with the hour fixed for the conclusion of the last poll

for such election, for the name of such person died or ceased to be a member,

for the purposes of designating the new leader in his place.

(2) The account shall contain such particulars, as may be prescribed.

(3) The total of the said expenditure shall not exceed such amount as

may be prescribed.

Thus, section 77 of the Act requires three things; (i) account of the election

expenses must be maintained correctly, (ii) it should contain such particulars as may

be prescribed, and (iii) the total of such expenditure should not exceed the prescribed

amount. A three Judge Bench of the Supreme court in Dal Chand v. Narayan Shankar

60
Trivedi130 considered the question whether failure to keep the election accounts by the

candidate is corrupt practice. It was observed that section 123(6) lays down that ―the

incurring or authorising of expenditure in contravention of section 77 is a corrupt

practice. Every contravention of section 77 does not fall within section 123(6). Section

77 consists of three parts. Section 77, sub-section (1) requires the candidate to keep a

separate and correct account of all election expenses incurred or authorised by him

within certain dates. Section 77, sub-section (2) provides that the account shall contain

such particulars as may be prescribed. Section 77, sub-section (3) requires that the

total of the said expenditure shall not exceed the prescribed amount. Section 123(6) is

related to section 73(3). If the candidate incurs or authorises expenditure in excess of

the prescribed amount in contravention of section 77(3), he commits corrupt practice

under section 123(6). The contravention of section 77, sub-section (1) and (2) or the

failure to maintain correct accounts with the prescribed particular does not fall within

section 123(6).

Obtaining Services of Government Servant

Section 123 (7) of the provides that the following shall be deemed to be

corrupt practice: ―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 candidate‘s election, form any person in the

service of the Government and belonging to any of the following cases namely—

i. Gazetted Officer;

ii. Stipendiary Judges and Magistrates;

iii. Members of the armed forces of the Union;

130
(1969) 3 S 685.

61
 iv. Members of the police forces;

v. Excise officers;

vi. 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 collected by them but who do

not discharge any police functions; and

vii. Such other class of persons in the service of Government ad may be

prescribed.‖

Provided that where any person, in the service of the Government and

belonging to any if the classes aforesaid, in the discharge or purported

discharge of his official duty, makes any arrangements or provides any

facilities or does any other act or thing, for to or in relation to, any candidate or

his agent or any other person acting with the consent of the candidate or his

election agent (either by reason of the office held by a candidate or for any

other reason), such arrangements, facilities or act or thing shall not be deemed

to be assistance for the furtherance of the prospects of that candidate‘s

election131.

The essential ingredients of section 123(7) of the R.P Act, 1951: (a)

The obtaining or procuring or the attempt to obtain or procure by the candidate

of assistance.

(b) The said assistance should be obtained from a Government servant

specified in the Sub-section itself.

(c) The assistance should be for the furtherance of election prospects of the

candidate obtaining or procuring the assistance.

131
This proviso was added by Act No. 40 of 1975 with retrospective effect.

62
(d) The assistance obtained or procured should be by the candidate or his

election agent or by any other person with the consent of the candidate or his

election agent.

Thus, corrupt practice defined in section 123 (7) cannot be committed

by any person unless he was a ―candidate‖ for an election.

Booth Capturing

One of the biggest problems during election is booth capturing. ―Sub-

section (8) was inserted in section 123 of the R.P. Act, 1951 by Amending Act

No 1 of 1989, specifying booth capturing by candidate or his agent or any

other person as corrupt practice.‖ Prior to this amendment, the act of booth

capturing was covered under undue influence. The explanation (4) of Sub-

section (8) of Section 123 refer to Section 135-A of the Act for the purpose of

definition of booth capturing. Section 135-A of the Representation of People

Act, 1951 reads as under:

―For the purposes of this sub-section and section 20B, ‗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

63
 their right to vote and [prevent others from free exercise of their right to

vote];‖

(c) ―[coercing or intimidating or threatening directly or indirectly] any elector

and preventing him from going to the polling station or a place fixed for the

poll to cast his vote;

(d) seizure of a 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;

(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.‖

2.3.4 Electoral offence under the Representation of People Act, 1951.

Section 125-136 of the Representation of People Act, 1951 prescribes

penalties for different electoral offences. These offences are discussed as follows:

i. Promoting enmity between classes in connection with election, under ―Section

125 of the R.P Act, 1951 is a cognizable offence punishable with

imprisonment for a term which may extend to three years or fine or with both.

An offence under this section is non-bailable and triable by Magistrate of the

First class.‖132 The Offences ―under this section amounts to corrupt practice

and result in setting aside of election vide clause (b) of Section 100(1) of the

R.P Act, 1951. 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. Consent of the candidate for the commission of the offence is not

material under this provision.‖

132
Section 125 of the R.P Act, 1951 read with Sections 153-A, 505 (2) of the Indian Penal Code and the
First Schedule of the Code of Criminal Procedure, 1973.

64
 ii. Section 125-A of the 1951 Act, provide penalty for filing false affidavits, etc.

―A candidate who himself or through his proposer fails to furnish information

or gives false information or conceal any information in his nomination paper

delivered under Section 33(1) or his affidavit which is required to be delivered

under Section 33 A (2) shall be punishable with imprisonment for a term

which may extend to six months or with fine or with both.‖133

iii. Holding of Public meetings during period of forty-eight hours ending with

hour fixed for conclusion of poll is punishable under Section 126 of the 1951

Act with imprisonment for a term which may extent to two years or with fine,

or with both.

iv. Disturbing a public meeting amounts to electoral offence under Section 127.

Any person who at a public meeting to which this section applies acts, or

incites others to act, in a disorderly manner for the purpose of preventing the

transaction of the business for which the meeting was called together, shall be

punishable with imprisonment for a term which may extend to six months or

with fine which may extend to two thousand rupees, or with both134.

v. Printing of pamphlets, posters, etc without printing the names of publisher,

printer, etc. is punishable under section 127A with imprisonment for a term

which may extend to six months or with fine which may extend to two

thousand rupees, or with both.

vi. Section 128 lays down that ―every officer, clerk, agent or any other person

performing any duty in connection with the recording or counting of voters 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

133
The Representation of People Act, 1951, s. 125A.
134
Id at, s. 127.

65
 any other law, communicate to any person any information calculated to

violate such secrecy. The contravention of this rule makes the person liable to

imprisonment for a term which may extend to three months or with fine or

with both.‖

vii. Section 129 casts a duty on officers etc. at election 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 Assistance Returning Officer, or a Presiding Officer

or Polling Officer at an election, or an Officer, or a 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.

viii. Canvassing in or near polling station on the date or dates which a poll is taken

within a distance of one hundred metres of the polling station is punishable

with fine which may extend to two hundred and fifty rupees.135

ix. Disorderly conduct in or near polling station is punishable and ―section 132 of

the Act empowers the Presiding Officer or any person authorised by him in

this behalf or any Police Officer on duty to remove any person from the

Polling station if he fails to obey the lawful directions of the Presiding Officer

135
The Representation of People Act, 1951, s. 130.

66
 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.‖136

x. If an elector refuses to observe the procedure prescribed for voting, the ballot

paper issued to him may be cancelled under section 132-A of the R.P Act

1951.

xi. Illegal hiring or procuring of conveyance at elections can be punished with

imprisonment which may extend to three months and with fine under Section

133.

xii. Breaches of Official duty in connection with election are punishable under

Section 134 with fine which may extend to five hundred rupees.

xiii. Section 134A prohibits the government servant ―from acting as election agent,

polling agent or counting agent of any candidate. The breach of this

prohibition is punishable with imprisonment which may extend to three

months or with fine or with both.‖

xiv. No person, other than the Returning Officer, the Presiding Officer, any Police

Officer or any other person appointed to maintain peace and order, at a polling

station, shall on a polling day, go with arms within the neighbourhood of a

polling station. Contravention of this provision is punishable under Section

134B with imprisonment for a term which may extend to two years, or with

fine or with both.

xv. Removal of ballot papers from the polling station is an offence under section

135 and if the Presiding Officer has reason to believe that any person is

committing this offence, he may cause him to be searched by Police Officer.

136
Id., s. 131.

67
 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

both137.

xvi. By Act No.1 of 1989, Section 135A was inserted by which the offence of

booth capturing was made 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 if such offence is committed by a person in the service of the

government, he shall be punishable with imprisonment for a term which shall

not be less than three years but which may extend to five years and with fine.

xvii. Non-grant of paid holiday to employees on the day of poll is punishable under

Section 135B. If an employer contravenes the provisions, then such employer

shall be punishable with fine which may extend to five hundred rupees.

xviii. Sale, distribution etc, of liquor on polling day shall be punishable under

Section 135C with imprisonment for a term which may extend to six months or

with fine which may extend to two thousand rupees, or with both.

xix. Section 136 provides for other offences and penalties. This section states as

follows:

―A person shall be guilty of an electoral offence if at any election he—

(a) fraudulently defaces or fraudulently destroys any nomination paper;

or

(b) fraudulently defaces, destroys or removes any list, notice or other

document affixed by or under the authority of a returning officer; or

137
The Representation of People, Act., 1951 s., 135.

68
 (c) fraudulently defaces or fraudulently destroys any ballot paper or the

official mark on any ballot paper or any declaration of identity or official

envelop used in connection with voting by postal ballot; or

(d) without due authority supplies any ballot paper to any person[or

receives any ballot paper from any person or is in possession of any ballot

paper]; or

(e) fraudulently puts into any ballot box anything other than the ballot

paper which he is authorised by law to put in; or

(f) without due authority destroys, takes, opens or otherwise interferes

with any ballot box or ballot papers then in use for the purposes of the election;

or

(g) fraudulently or without due authority, as the case may be, attempts

to do any of the foregoing acts or wilfully aids or abets the doing of any such

acts‖.

―Any person guilty of an electoral offence under this section shall,—

(a) if he is a returning officer or an assistant returning officer or a presiding

officer at a polling station or any other officer or clerk employed on official

duty in connection with the election, be punishable with imprisonment for a

term which may extend to two years or with fine or with both;

(b) if he is any other person, be punishable with imprisonment for a term

which may extend to six months or with fine or with both.‖

2.3.5 Election dispute under the Representation of People Act 1951.

Elections can be free and fair, if they are transparent and subject to judicial

scrutiny. Election law in India lays stress on both the above aspects. The entire

electoral exercise is conducted in a totally transparent manner, in full public gaze, with

69
the active participation of political parties and candidates, who are the main stake-

holders, and of electors who are the ultimate beneficiaries under democracy. The

exercise is also subject to judicial scrutiny in all its aspects, as India is wedded to the

rule of law. Thus, every election to any elected body or elective office, be it the office

of the President of India or a member of Parliament or of a State Legislature, is open

and subject to judicial scrutiny.

Under the 1951 Act, each election from a Parliamentary or assembly

constituency is a separate election and has to be challenged separately by means of

separate election petitions relating to each election. Section 80 to 84 of the

Representation of People Act, 1951 deals with the election petition and Section 86 to

97 deals with trial of election petitions. However, section 80 of the Act provides that

no election shall be called in question except by an election petition presented in

accordance with the provisions of Chapter II, Part VI of the Act which deals with

disputes regarding elections and provides for the manner of presentation of election

petitions and trial procedure therefor. Section 80, which is couched in almost the same

language as article 329(b) of the Constitution by which the jurisdiction of Civil Courts

to entertain a civil suit or any other proceeding is totally barred so far as elections to

the Legislatures are concerned. Thus, any challenge to the election is maintainable

only by election petition.

Section 81 of the Act provides for the presentation of election petition. It

gives locus-standi, prescribes limitation and specified the ground of challenge by way

of petition to High Court. This Section prescribes limitation of 45 days for

presentation of an election petition challenging an election to the Legislature. The

period of 45 days is to commence from the date of election and in case there are more

than one returned candidate and they are declared elected on different dates then from

70
the date which is later. The date of election is to be excluded in computing the period

and the last day of the period shall be included as indicated by the expression ―within

45 days‖. If the last day of the prescribed period is a holiday, the petition might be

presented on the next working day. Since election petition is not an ordinary suit,

appeal or application, and therefore, the courts will have to strictly adhere to the rule

of limitation given under Section 81(1) of the R.P.A, 1951. Questions pertaining to

limitation often arise in election law as to the applicability of the Limitation Act, 1963

and the General Clauses Act, 1897. Similarly, the question if the High Court is on

vacation, whether the petition can be filed on the opening day of the High Court. In

K.V. Rao v. V.N. Reddi138, the Supreme Court held that ―the Limitation Act, 1963

cannot apply to proceedings like an election petition in as much as the Representation

of the People Act, 1951 is a complete and self-contained code which does not admit of

the introduction of the principles or the provisions of law contained in the Limitation

Act.‖ The court opined that no power is given to the High Court to entertain an

election petition which does not comply with the provisions of Section 81. However,

Sections 9 and 10 of the General Clauses Act, 1897 providing for computation of time

would apply to such petitions.

Section 81(3) of the R.P Act, 1951 states that ―the election petition should be

accompanied by as many copies thereof as there are respondents mentioned in the

petition, and every such copy shall be attested by the petitioner under his own

signature.‖ The word ―copy‖ in sub-section (3) of section 81 does not mean an

absolutely exact copy, but means that the copy shall be so true that nobody can by any

possibility misunderstand it.

138
AIR 1969 SC 872, 876.

71
 Section 82 of the Act deals with the parties to the petition and clause (a)

provides that the petitioner shall make the returned candidate as respondent to the

petition, if the relief claimed is confined to the declaration that the election of the

returned candidate is void. All the contesting candidates shall be joined as

respondents139 if a further declaration is sought that the petitioner himself or any other

candidate has been duly elected. Clause (b) of this Section requires the petitioner to

join as respondent any other candidate against whom the allegations of corrupt

practice are made in the petition. A reading of the Section makes it clear that the

contest in the election-petition is designed to be confined to the candidates at the

election and all others are excluded. The concept of fair trial requires that all candidate

who are known to the petitioner to have indulged in corrupt practices should be made

parties.140

Section 83 of the Act provides for the contents of the Petition and Sub-section

1 clause (a) of the Act states that ―an election petition shall contain a concise

statement of the material facts on which the petitioner relies.‖ Section 83(1)(b)

requires full particulars of any corrupt practice alleged in the petition. The word

―material‖ shows that the facts necessary to formulate a complete cause of action must

be stated. Omission of a single material facts leads to an incomplete cause of action

and statement of claim becomes bad. Section 83(1)(c) states that ―an election petition

shall be signed by the petitioner and verified in the manner laid down in the Code of

Civil Procedure, 1908 for the verification of pleadings.‖ 141 However, omission to

verify or defect in verification is a curable irregularity.

139
A returned candidate not already a respondent shall, upon application made by him not withdrawn his
candidature under section 37 of the R.P Act, 1951.
140
AnandBallabhKafaltiya, Democracy and Election Laws 301 (Deep & Deep Publications Pvt.Ltd,
NewDelhi, 1stedn 2003).
141
―Order 6 Rule 15 of the CPC. Reads thus: Verification of Pleadings---

72
 In the case of Mahendra Pal v. Ram Das Malanger and others,142the Supreme

Court observed that the facts which are essential to disclose a complete cause of action

are material facts and are essentially required to be pleaded. The Court in this case

clarify that ―failure to plead even a single material fact leads to an incomplete cause of

action and incomplete allegations of such a charge are liable to be struck-off under

Order 6 Rule 16, Code of Civil Procedure. In case of a petition suffering from

deficiency of such facts or particulars, the Court has the discretion to allow the

petitioner to supply the required particulars even after the expiry of limitation.‖ It may

be permissible by the Court for a party to furnish particulars even after the period of

limitation for filing an election petition has expired. But no material fact unless

already pleaded, can be permitted to be introduced after expiry of the period of

limitation.

In the case of Ishwardas Rohani v. Alok Mishra &Ors 143 ―The Respondent

No.1 herein, Shri Alok Mishra, contested the 2008 elections to the Madhya Pradesh

State Assembly as a candidate of the Indian National Congress Party from Cantt.

Legislative Assembly No.99 Constituency, Jabalpur. He was defeated in the elections

by the Appellant therein as a candidate of the Bharatiya Janata Party. The said

Respondent filed Election Petition No.22 of 2009, challenging the election of the

Appellant on the ground of corrupt practice, as contemplated in Sub-Sections (1)(A)

and (B), (2), (6) and (7) of Section 123 of the Representation of the People Act,

(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified
at the foot by the party or by one of the parties pleading or by some other person proved to the
satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what
he verifies of his own knowledge and what he verifies upon information he received and believes
to be true.
(3) The verification shall be signed by the person making it and shall state the date and place at which
it was signed.‖
142
AIR 2000 SC 16 at 18.
143
[2012] 277 (3 May 2012).

73
1951.‖ The appellant contended that―Election Petition filed by the Respondent No.1

be rejected, inter alia, on the ground that except for making vague allegations of

corrupt practice, the RespondentNo.1 (Election Petitioner) had failed to disclose

material facts and particulars in respect thereof. Another ground of challenge was that

the Respondent No.1 had failed to comply with the provisions of Section 81(3)(a) and

(b), which are mandatory and in the absence whereof no cause of action could be said

to have been available to the Election Petitioner.‖ The Madhya Pradesh High Court

after considering the facts involved in the Election Petition, as also in the Application

filed under ―Order VII Rule 11 read with Order VI Rule 16 of the C.P.C.,‖ the High

Court was of the view that although, the allegations of corrupt practice had not been

properly drafted, the Election Petition could not be rejected on the said ground. Then

the Appellant in this case appeal to the Supreme Court and the Court held that there

has to be a balance in which the provisions of Section 81(3) of the 1951 Act are duly

complied with to safeguard the interest, both of the individual candidate, as well as of

the public. ―In this case, while accepting the case made out by the Appellant regarding

the deficiencies in the Election Petition, the Division Bench of the High Court, did not

commit any error in directing the Election Petitioner to cure the defects in the Election

Petition, which had been brought out during the hearing of the Election Petition. The

law in regard to Election Petitions and how Election Petitions are to be presented and

the procedure to be strictly followed in filing such Election Petitions, in which

corruption, in particular, is the allegation made against the returned candidate. There is

little doubt that the provisions have to be strictly construed, but that does not mean

that any defect in the Election Petition cannot be allowed to be cured in the public

interest. If after an opportunity is given, still no steps are taken by the Election

74
Petitioner to cure the defects which are noticed, then the rigours of the procedure

indicated by the 1951 Act, come into effect with full vigour.‖

Grounds of challenge

An election to the Legislature can be challenged on the grounds specified in

the Representation of People Act, 1951 and not otherwise. Section 100 and Section

101 of the Act provide for such grounds. Section 100 reads as follows:

―Subject to the provisions of sub-section (2) if the High Court is of opinion----

(a) that on the date of his election a returned candidate was not qualified, or was

disqualified, to be chosen to fill the seat under the Constitution or this Act [or

the Government of Union Territories Act, 1963 (20 of 1963)]

(b) that any corrupt practice has been committed by a returned candidate or his

election agent or by any other person with the consent of a returned candidate

or his election agent.

(c) that any nomination has been improperly rejected.

(d) that the result of the election, in so far as it concerns a returned candidate, has

been materially affected—

i. by the improper acceptance or any nomination, or

ii. by any corrupt practice committed in the interests of the

returned candidate [by an agent other than his election agent],

or

iii. by the improper reception, refusal or rejection of any vote or the

reception of any vote which is void, or

iv. by any non—compliance with the provisions of the Constitution

or of this Act or of any rules or orders made under this Act.The

75
 High Court shall declare the election of the returned candidate

to be void.‖

Section 101 of the Act states that ―if any person who has lodged a petition has,

in addition to calling in question the election of the returned candidate, claimed a

declaration that he himself or any other candidate has been duly elected and the High

Court is of opinion—(a) that in fact the petitioner or such other candidate received a

majority of the valid votes; or (b) that but for the votes obtained by the returned

candidate by corrupt practices the petitioner or such other candidate would have

obtained a majority of the valid votes, the High Court shall after declaring the election

of the returned candidate to be void declare the petitioner or such other candidate, as

the case may be, to have been duly elected.‖

Therefore, Section 100 and 101of the R.P. A, 1951 deal with the substantive law on

the subject of elections. These two Sections circumscribe the conditions which must

be established before an election can be declared void or another candidate declared

elected.

Election Trial

The election petition on the commission of corrupt practice is said to be

considered the trial as quasi-criminal in nature. The inherent difference between the

trial of election petition and criminal trial is that in a criminal trial the accused need

not lead any evidence and ordinarily he does not do so unless his case is to be

established by positive evidence on his side whereas the trial of election petition

permits the candidate against whom the charges are levelled to prove his denial and

inevitably lead evidence.

The trial goes on as that of the issues of a civil suit were being investigated and

the petitioner has to give particulars of the corrupt practice with details. On default of

76
giving the particulars, the allegations may be ignored. The petitioner has to ask for

certain declarations and the procedure before the High Court is to be in accordance

with the aid of the provisions of the Code of Civil Procedure to the trial of civil suits

with the aid of the provisions of the Indian Evidence Act.

The Representation of the People Act, 1951 provides provision for the trial of

election and Section 86 of the Act says that as soon as may be after the election

petitions are presented to the High Court it shall be referred to the Judge or one of the

Judges who has, or who have been assigned by the Chief Justice for the trial of

election petitions. In case more than one election petitions are presented in respect of

the same election, all of them shall be referred to the same Judge. Any candidate who

is not already a respondent shall be so joined upon an application made by him to the

High Court, within fourteen days from the date of the commencement of the trial,

subject to any order as to security for costs. The trial of the petition shall continue

from day to day until its conclusion and it shall be tried as expediously as possible and

endeavour shall be made to conclude the trial within six months from the date on

which the election petition is presented for trial.

Section 86(5) of the Act, also provides for the amendment of election petition.

It lays down that the High Court may upon such terms as to costs or otherwise, as it

deem fit, allow amendment in respect of particulars but there is a complete prohibition

against any amendment being allowed which may have the effect of introducing either

material facts not already pleaded or of introduction particulars of a corrupt practice

not previously alleged in the petition. The Court cannot give a new cause of action by

directing to the petitioner to furnish the particulars are just an amplification of the

material allegations made in the election petition and they are no new facts or

77
constitute no new cause of action, such amendments may be allowed. Amendment to

fill in the gaps which are found in the election petition cannot be allowed.

In the case of L.R. Shivaramagowda v. T.M. Chadrasekhar, 144 the Supreme

Court reiterated that while the failure to plead material facts is fatal to the election

petition and no amendment of the pleading could be allowed to introduced such

material facts after the time limit prescribed for filling the election petition. However,

the absence of material particulars can be cured of i.e. an already alleged corrupt

practice can be cured at later stage by an appropriate amendment. But where the

amendment does not relate to the corrupt practice, the Court may in its discretion,

consider the amendment application on its own merits and there is no legal bar in

allowing such an amendment. So far as addition or deletion of the names of parties is

concerned, no amendment seems to be permissible because of provisions of Section

82 of the R.P.A, 1951 if the necessary party is not joined in the election petition within

limitation for filing the election petition, the High Court has no power to allow

addition of parties by way of amendment after the limitation.

The election petition shall be tried by the High Court as nearly as may be in

accordance with the procedure applicable under the Code of Civil Procedure, 1908 to

the trial of he suits, subject to the provisions of the R.P.A, 1951 the Indian Evidence

Act have been made applicable in all respects to the trial of the election petition.145

However, the High Court has power, for reasons to be recorded in writing, to refuse to

examine any witness, if it is of the opinion that the evidence of such witness is not

material for the decision of petition.

144
AIR 1999 SC 2521; (1999) 1 SCC 666.
145
The Representation of People Act, 1951, s. 87.

78
 However, in the case of Samar Singh v. Kedar Nath,146 it was held that when

the Representation of the People Act, 1951 itself lays down that a particular thing will

have to be done in a particular manner, it will have to be done in that manner alone,

irrespective of any provision to the contrary in the Code of Civil Procedure or in the

Evidence Act. Thus, the provisions of Civil Procedure Code or the Indian Evidence

Act do not apply in their entirely to the trial of the election petition.

The R.P Act 1951 Also provides provision for appeal to the Supreme Court.

The final decision of the High Court in an Election petition intimated to the parties by

formal pronouncement or delivery in open Court becomes the operative

pronouncement of the Court. Every order made by the High Court after the conclusion

of trial of the Election petition under Section 98 or Section 99 is appealable to the

Supreme Court under Section 116-A of the R.P. Act, 1951 on the question of law and

fact. Section 116-A (2) provides that ―an appeal will have to be presented within a

period of 30 days from the date of the order of the High Court and the proviso to Sub-

section (2) of Section 116-A enables the Supreme Court to entertain an appeal after

the expiry of the said period of 30 days if it is satisfied that the appellant had sufficient

cause for not preferring the appeal within such period.147 Before the expiration of the

time allowed for appealing, an application may be made to the High Court for stay of

operation of an order made by the High Court under Section 98 or Section 99 and the

High Court may on sufficient cause being shown and on such terms and conditions as

it may on sufficient cause being shown and on such terms and conditions as it may

think fit, stay the operation of the order, but no application for stay shall be made to

the High Court after an appeal has been preferred to the Supreme Court.‖148 When an

appeal is presented to the Supreme Court, the Supreme Court may on sufficient cause
146
AIR 1987 SC 1926.
147
Limitation Act, 1963 s. 5.
148
The representation of People Act, 1951, s. 116-B.

79
being shown and on such terms and conditions as it may think fit, stay the operation of

the order appealed from.149

Section 116-B(3) further states that ―when the operation of an order is stayed

by the High Court or as the case may be, the Supreme Court, the order never to have

been taken effect, and a copy of the stay order shall immediately be communicated by

the Court to the Election Commission and the Speaker or Chairman, as the case may

be, of the House of Parliament or the State Legislature concerned.‖ However, the

Procedure before the Supreme Court shall be governed by the relevant provisions of

the Code of Civil Procedure, 1908 and the rules of the Courts including the provision

as to furnishing of security and the execution of any order of the Court as far as may

be, apply in relation to the appeals.150 As soon as the appeal is decided, the Supreme

Court shall intimate the substance of the decision to the Election Commission sand the

Speaker or the Chairman of the House concerned and the Election Commission shall

forward copies thereof to the authorities to which the copies of the order of the High

Court were forwarded under Section 106 and cause the decision to be published in the

Gazette in which the order of the High Court was published under the said section.151

2.4 The Representation of the People Act, 1950

The main objects of this law are delimitation of constituencies, prescribing additional

qualifications for voters, preparation of electoral rolls, etc. The more important

provisions of the Act are:

i. The seats in the Lok Sabha are distributed state-wise. A constituency of the

Lok Sabha cannot be spread over two or more states.

ii. Every constituency of the Lok Sabha is a single member constituency.

149
Id at, s. 116-B(2)
150
The Representation of People‘s Act, 1951, s. 116-C.
151
Id at, s. 116-C (2).

80
 iii. The constituencies of the Legislative Councils of States are determined by the

President.

iv. Any person who is not less than 18 years of age on the qualifying date and

who is ordinarily resident in a constituency and is not otherwise disqualified

(e.g. by reason of being insolvent or of unsound mind) is entitled to be

registered as a voter in the constituency. These electoral rolls are revised and

updated from time to time by the Electoral Registration Officers either on an

application by , some person or suo - motto. An intensive revision of the roll is

carried out before every general election to the Lok Sabha or the State

Legislature or before a by- election, unless the Election Commission directs

otherwise.

2.5The Indian Penal Code 1860.

The corrupt practices like bribery, undue influence, personation, publication of

false statement, illegal expenditure in excess of a prescribed limit or failure to lodge

return of election expenses were introduced in Chapter IX-A of the Indian Penal Code

by the Indian Elections Offences and Inquiries Act No 39 of 1920 which prescribes

offences relating to elections. This Chapter has to be read along with the

Representation of People Act, 1951 which I have discussed above. A conviction under

Section 171A or 171F IPC amounts to a disqualification under Section 8 of the R.P

Act, 1951. Following are the offences relating to elections under the Indian Penal

Code:

i. Bribery (Section 171-B read with Section 171-E)

ii. Undue influence at elections (Section 171-C read with Section 171-F).

iii. Personation at elections (Section 171-D).

iv. False statement in connection with an election (Section 171-G).

81
 v. Illegal payments in connection with an election (Section 171-H).

vi. Failure to keep election accounts (Section 171-I).

2.6 Delimitation Commission Act, 2002.

The Delimitation Commission Act, provides for the delimitation as well as

demarcation of boundaries of the territorial constituencies. The act also includes the

provisions for readjustments in the allocation of seats to various states in the House of

the People and the total number of seats of the legislative assemblies of the states,

unless Parliament itself chooses to fix the number of such seats. The main objective of

the Delimitation Act is to secure the equal representation for equal segments of the

population in the legislative bodies.

The other equally important aim of delimitation is to divide the geographic

areas into territorial constituencies so fairly that no party or candidate may

legitimately have a grievance.

The Delimitation Commission ofIndia is a commission established by the

Government of India under the provisions of the Delimitation Commission Act. The

main task of the commission is redrawing the boundaries of the various assembly and

Lok Sabha constituencies based on a recent census. The representation from each

State is not changed during this exercise. However, the numbers of schedule caste and

schedule tribe seats in a state are changed in accordance with the census. The present

delimitation of constituencies has been done on the basis of 2001 census under the

provisions of Delimitation Act, 2002.

The first Delimitation Commission was set up in 1952 (basis of 1951 census)

this Commission was set up after the 1951-1952 election. When the constitution came

in existence, it had fixed the number of Seats to Lok Sabha as not more than 500. For

the First General Elections for Lok Sabha as well as legislative Assemblies for 1951-

82
52, the Election Commission had divided the entire country into viable territorial

divisions of parliamentary/assembly Constituencies. However, after that this task was

given to the Independent Delimitation Commission Accordingly, separate delimitation

commissions were set up in 1952 (basis of 1951 census) 1962 (basis of 1961 census),

1972 (basis of 1971 census).

In pursuant with the 84th Amendment Act 2002, the Delimitation Act 2002

was passed. Amendment Act 2002 extended the freeze till the year 2026, this was

based upon the calculations of the population planners that by 2026 India will be able

to stabilize the population. Under this act Delimitation Commission was constituted in

July 2002. The Chairman of this commission was Justice Kuldeep Singh. Justice

Kuldeep Singh was a retired Judge of the Supreme Court of India. The Ex-officio

members of this Commission were an election commissioner of India and state

election commissioners. So this commission started working on the basis of 1991

census data. But later in 2003, the word ―1991‖ in the article 82 of the constitution

was removed and replaced by 2001. The commission later restarted the work as it was

now entrusted with the task of readjusting all parliamentary and assembly

constituencies in the country in all the states of India, except the state of Jammu and

Kashmir, on the basis of population ascertained in 2001 Census.

The Delimitation Commission Act, 2002 also provide that the Election

Commission of India is given the necessary secretaries‘ assistance to the Delimitation

Commission and one of the secretaries to the Election Commission shall function as

the secretary to the Delimitation Commission. The Act also provides that all

expenditure in the delimitation exercise would be borne by the Central Government.

Under the Act, the Delimitation Commission shall have power to call upon the

Registrar General and Census Commissioner of India or his nominee, the Surveyor

83
General of India or his nominee, any other officer of the Central Government or state

government, any expert in geographical information system or any other person whose

expertise and knowledge are considered necessary by the Commission, to provide

assistance to it and persons so called upon shall be duty bound to assist the

Commission. The Act also provided for the associated of five members of the House

of the People and five members if the State Legislative Assembly as associate

members for each state on the same pattern as provided in the earlier Delimitation

Acts.

2.6.1 Principles of Delimitation

The Delimitation Commission Act should be read along with the principles lay

down under the Indian Constitution for the exercise of delimitation. These principles

have been supplemented by the Parliament whenever it provided for the setting up of

an independent Delimitation Commission or entrusted the task to the Election

Commission. Article 81 (1) and Article 170(1) of the Indian Constitution prescribed

the maximum limits beyond which the total membership of the House of the People

and of the State Legislative Assemblies cannot go. Additionally, the minimum

membership strength of the state legislative assemblies is also laid down by the

Constitution under article 170 (1). These limits cannot be transgressed and every

delimitation authority, whether it be Parliament itself or any other agency created or

specified by it, has to be so fix the total number of seats in the House of the People

and in the legislative assembly of each state that such numbers fall within the

prescribed parameters.

The Constitution also lays down Article 81(2)(a), the basic principle for the

allocation of seats to various states in the House of the People. The number of seats in

the House of People shall be allotted to each state in such manner that the ratio

84
between that number and the population of the state is, so far as practicable, the same

for all states, so that these seats are equitably distributed among all states. However,

an exception has been made in the case of smaller states whose population does not

exceed six million, in order that their interests are duly safeguarded in the matter of

their adequate representation in the House of the People.152

Article 330 of the Indian Constitution, further ordains that seats shall be

reserved for the scheduled tribe and schedules castes in the House of the People and in

the state legislative assemblies in proportion to their population in each state. In so far

as the delimitation of parliamentary and assembly constituencies is concerned, the

basic principle laid down by the Constitution is that each state shall be so divided into

territorial parliamentary and assembly constituencies that the ratio between the

population of each constituency and the number of seats allotted to it is, so far as

practicable, the same throughout the state.153

Whenever Parliament has enacted law after any decennial census providing for

the delimitation of constituencies, it has given some directives to the Delimitation

Commission, which that Commission has to keep in mind and observe. These

directives are in addition to the principles laid down by the Constitution itself as

permanent mandate to any authority undertaking the exercise of delimitation. In the

Delimitation Act 2002 the Parliament has laid down in Section 9(1) as follows:

a) ―All constituencies shall be single-member constituencies and shall as

far a practicable, be geographically compact areas;

b) In delimiting the constituencies, regard shall be had to physical

features, existing boundaries of administrative units, facilities of

communication and public convenience;

152
The Constitution of India, proviso Art.,81(2).
153
The Constitution of India, Art., 81(2) (b), 170(2).

85
 c) Every assembly constituency shall be so delimited as to fall wholly

within one parliamentary convenience;

d) Constituencies in which seats are reserved for the Scheduled Castes in

any state shall be distributed indifferent parts of the state and located,

as far as practicable, in those areas where the proportion of their

population to the total population of this areas is comparatively large;

and

e) Constituencies in which seats are reserved for the Scheduled Tribes in

any state shall, as far as practicable, be located in areas where the

proportion of their population to the total population of those areas is

the largest.‖

2.7 The Conduct of election Rules, 1961 and The Registration of Electoral Rule

1960.

The Conduct of elections Rules 1961 and The Registration of Electoral Rule

1960 are the Central rule which were enacted for the proper conduct of elections in

India. These rules must be read along with the Representation of People Act, 1950 and

deals with the preliminary phase of elections as it provides provisions for qualification

of voters and preparation of electoral rolls. Some of the features of the Conduct of

lections Rules are;

1. The presentation of nomination paper.

2. Notice of nominations.

3. Notice of withdrawal of candidate

4. Preparation of list of candidate.

5. Appointment of election agent.

6. Appointment of polling agent.

86
 7. Postal Ballot.

8. Procedure of voting by the notified class of electors.

9. Voting by classified service voters through proxy.

10. Procedure of voting and counting of votes in parliamentary and assembly

constituencies.

11. Voting by electronic voting machines.

12. Voting at elections and counting of votes by Assembly members and in

Council Constituencies.

13. Contributions report, equitable sharing of time on electronic media and

material to be supplied to recognised political parties.

14. Election expenses.

The Registration of Electoral Rule 1960, provides provision for the Procedure

for preparation and revision of rolls. The rule provides for the preparation of rolls for

the assembly constituencies, council constituencies and Parliamentary Constituencies

in the Union Territory of Delhi and the preservation and disposal of electoral Rolls.

The 1960 Rule also provides the procedure for the correction of entries and inclusion

of names in electoral rolls etc.

2.8 International Standard for elections.

The international standards for election rooted from the political rights and

fundamental freedom established by universal and regional treaties.These provide a

basis for the assessment of election processes by both international and domestic

election observers.

The principal universal legal instruments are the Universal Declaration of

Human Rights (UDHR). Article 21 of the UDHR (1948) states that ―(i) everyone has

the right to take part in the Government of his country, directly or through freely

87
chosen representative. (ii) everyone has the right of equal access to public service in

his country. (iii) The will of the people shall be the basis of the authority of

Government; the will shall be expressed in periodic and genuine elections which shall

be by universal and equal suffrage and shall be held by secret vote or by equivalent

free voting procedures.‖ The Participation in the Government of a country should,

according to Article 21, be either direct or through freely chosen representatives.

Another international instrument is the International Covenant on Civil and

Political Rights (ICCPR). Article 25 of the ICCPR (1966) states that, ―every citizen

shall have the right and the opportunity, without any of the distinction mentioned in

article 2 and without unreasonable restrictions:

a) To take part in the conduct of public affairs, directly or through freely

chosen representatives;

b) To vote and to do elected at genuine periodic elections which shall be

by universal and equal suffrage and shall be held by secret ballot,

guaranteeing the free expression of the will of the electors;

c) To have access, on general terms of equality, to public service in his

country.‖

The essential so this Article of ICCPR is that it requires States to adopt such

legislative and other measures that may be necessary to ensure that citizens have an

effective opportunity to enjoy the rights it protects.

Other universal treaties also provide standards for the conduct of elections

include the International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD), The Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW) and the Convention on the Rights of

Persons with Disabilities (CRPWD).

88
 Article 5 of The International Convention on the Elimination of all Forms of

Racial Discrimination (ICERD 1965) states that ―States Parties undertake to prohibit

and to eliminate racial discrimination in all its forms and to guarantee the ethnic

origin, to equality before the law.‖

Further, clause (c) of this Article provides that political rights, in particular is

the right to participate in elections- to vote and to stand for election- on the basis of

universal and equal suffrage, to take part in the Government as well as in the conduct

of public affairs at any level and to have equal access to public service.

Article 7 of CEDAW (1979) provides States Parties ―shall take all appropriate

measures to eliminate discrimination against women in the political and public life of

the country and in particular, shall ensure to women, on equal terms with men, the

right:

a) To vote in all elections and public referenda and to be eligible for election to

all publicly elected bodies.‖

This Article promotes inclusiveness for women by prescribing eligibility for

election to all publicly elected bodies, and extends inclusiveness in paragraphs

(b) and (c) to the practical functioning in elective office and to participation in

non-governmental organisations and associations concerned with the public and

political life of the country. In addition, women shall of course have the right to

vote in all elections and public referendums on equal terms with men.

Thus for elections to be credible, international standards need to be understood by

election stakeholders and met in practice.

2.9 Model Code of Conduct

Article 324 of the Constitution of India empowered the Election Commission

of India to supervise and direct the election in India. It is the paramount duty of the

89
Commission to conduct the election at regular prescribed period. The Commission

under Art. 324 of the Constitution, for the conduct of smooth and fair election, it lays

down some code of conduct for free, fair and peaceful election.

The model code is a set of norms laid down by the Election Commission of

India, with the consensus of political parties. It spells out the dos and don‘ts to be

followed by political parties, candidates and polling agents during the election

procedure. They are expected to observe these guidelines on the content of election

manifestos, their speeches and processions and overall general conduct. The code of

conduct was first introduces during the assembly elections in Kerala in 1960 as a

small set of dos and dont‘s. The EC circulated the code to all recognised parties

during the simultaneous polls to the Lok Sabha and assemblies in several states in

1962 and the state governments were requested to secure the acceptance of the code

by the parties. Then in 1967 the code was followed in the Lok Sabha and assembly

election. Later, in 1968, the Election Commission held meetings with political parties

at the state level and circulated the code of conduct to observe a minimum standard of

behaviour to ensure free and fair elections. In 1971-72, during the general election to

the House of the people/state legislative assemblies, the commission circulated the

code again. In 1974, the commission issued the code of conduct to the political parties

in those states. Again in 1977, the code was circulated to the political parties. In 1979,

the Election Commission, in consultation with the political parties changed the code

again and added a new section placing restrictions on the ―party in power‖ to prevent

cases of abuse of a position of power to get an undue advantage over other parties and

candidates. In 1991, the code was consolidated and re-issued in its present form and

finally in 2013, in the case of S.Subramaniam Balaji v. Govt of T.N. & others154 the

154
July 2013, in SLP (C) no 21455 of 2008.

90
Supreme Court directed the Election Commission to include guidelines regarding

election manifestos, which it has included in the code for the 2014 Lok Sabha polls.155

These Guidelines have been incorporated as part VIII of ―Model Code of Conduct of

Guidance of Political Parties & Candidates‖ and shall be applicable & implemented in

Lok Sabha Elections - 2019 as part of MCC.

This chapter have comprehensively discussed the various laws relating to

elections in India. The chapter dealt with the various provisions which discussed the

concept of electoral in India as well as the electoral malpractices. This chapter

discussed the laws which contribute to the free and fair elections in India. However,

the researcher have come to the conclusion that The Representation of the People Act,

1951 has given restrictive and exhaustive meaning on corruption practices and there is

a need to make it an inclusive definition so as to cover all possible malpractices

usually committed or which could be committed in connection with election.

155
Hindustan Times ‗Lok Sabha election 2019: Model code of conduct now in force: What it means‘,
March 10, 2019.

91