This article is written by Tellmy Jolly.
Elections are considered to be a process to achieve democracy and is an indispensable element in the establishment and continuation of any democracy. India is having a Constitution that guarantees a democratic republic to its citizens. The Constitution of India gives a scheme of democratic bodies/posts as well as an independent constitutional authority bestowed with the function of conduct of free and fair elections, namely the Election Commission. Free and fair election is an indispensable part of the Indian democracy. Corrupt practices and offences related to election are those which interfere in the free exercise of right to vote and includes bribery, undue influence etc. It is very essential for us to study and understand about electoral offences, penalties and disqualification. This paper therefore deals with various provisions under the Representation of People’s Act, 1951 and the Indian Penal Code which discusses electoral offences. Further, the distinctions between electoral offences and corrupt practices are also studied.
‘Freedom of choice’ is called the essence of democratic election. In all democratic countries, election/selection of a particular person of their choice among the other candidates for discharging certain duties is considered to be the natural right of an individual. Corrupt practices and offences related to election are those which interfere in the free exercise of right to vote and includes bribery, undue influence etc.
The electoral offences under the IPC are enumerated in chapter IXA under the heading ‘Of Offences Relating to Elections’. This chapter was inserted in the Code more than 90 years ago in 1920 by the Indian Elections Offences and Inquiries Act 1920 when the concept of elections in a limited way was introduced in some of the legislative bodies under the Government of India Act 1919. Under IPC, the electoral offences are bribery at elections (s. 171B), undue influence at elections (s. 171C), personation at elections (s. 171D), false statement in connection with an election (s. 171G), illegal payments in connection with an election (s. 171H) and failure to keep election accounts (s. 171I).
The electoral offences under the Representation of People’s Act, 1951 are:
- Promoting enmity between classes in connection with election (s. 125)
- Filing false affidavits (s. 125A)
- Holding of public meetings during a period of 48 hours ending with an hour fixed for conclusion of poll (s. 126)
- Restriction on publication and dissemination of result of exit polls (s. 126A)
- Offences by companies (s. 126B)
- Disturbances at election meetings (s. 127)
- Printing of pamphlets, posters without mentioning the name of publisher (s. 127A)
- Violation of secrecy of voting (s. 128)
- Officers or others trying to influence the voters (s. 129)
- Canvassing in or near the polling stations (s. 130)
- Disorderly conduct in or near polling stations (s.131)
- Misconduct at the polling stations (s. 132)
- Failure to observe procedure for voting (s. 132A)
- Illegal hiring or procuring of conveyance at elections (s. 133)
- Breaches of official duty in connection with elections (s. 134)
- Misuse of Government servants (s. 134A)
- Going armed to or near the polling stations (s. 134B)
- Removal of ballot papers etc. from polling stations (s. 135)
- Booth capturing (s. 135A)
- Non- grant of paid holiday to employees on the employees on the day of poll (s. 135B)
- Sale, distribution etc. of liquor on polling day (s. 135C)
- Fraudulently tampering with nomination papers, ballot boxes, ballot papers, election records, unauthorizedly supplying ballot papers etc. (s.136)
Any conviction of an offence under s. 125, s. 135, s. 135A and s. 136(2)(a) attracts disqualification for membership of Parliament and state legislatures for a minimum period of 6 years from the date of conviction. Further, any conviction for an electoral offence committed under s. 125, s. 135 and s. 136(2)(a) also imposes disqualification for voting for a period of 6 years.
Electoral offences and penal provisions
Section 123(1) of RP Act and 171B/171E of IPC defines bribery as a corrupt practice as well as an electoral offence. The section vide clause (1) (i) says that whoever gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right, commits the offence of bribery. According to this sub-clause one way of committing bribery is by giving gratification. The object of the giver must be either to induce a person to exercise an electoral right or of rewarding him for having already exercised such right. Bribery has also been defined under clause (1) (ii) wherein it has been said that whoever accepts any gratification, either for himself or for any other person, as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery. Thus the second way of committing bribery is by accepting gratification. So bribery under this section is possible either by giving gratification as stated under the first part of the first clause or by accepting gratification as stated by the second part of the first clause. There is a proviso clause as well which clarifies that a declaration of public policy or a promise of public action shall not be an offence under this section.
According to the second clause of this section, a person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification. In other words, a gratification is deemed to have been given in any of the four cases, viz., where a person offers gratification, or where he agrees to give gratification, or where he offers to procure gratification, or where he attempts to procure gratification. The second clause, therefore, further explains ‘bribery by giving gratification’ which has been explained in clause (1) (i) of this section.
The third clause of this section further explains ‘bribery by accepting gratification’ which has been explained in clause (1) (ii) of this section. According to the third clause, a person who obtains, or agrees to accept, or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing something which he has no intention to do, or as a reward for doing something which he has not done, shall be deemed to have accepted the gratification as a reward.
Section 171E prescribes punishment which is simple or rigorous imprisonment for a term extending up to one year, or fine, or both.
Section 123(2) of RP Act and section 171C/171F of IPC talks about undue influence at election, thereby making it both a corrupt practice and an electoral offence. Any person who directly or indirectly interfere or attempt to interfere with the free exercise of any electoral right commits the offence of undue influence and shall be punished with 1year imprisonment or fine or both as per provision of IPC. he offence is punishable under section 171 -F of the Code. Sub-section (1) of the section states that whoever interferes voluntarily, or attempts to interfere voluntarily, with the free exercise of any electoral right commits the offence of undue influence at an election. Actual interference and attempt to interfere have been treated at par.
The interference or its attempt must be with respect to free exercise of any electoral right. ‘Electoral right’ has the same meaning as given under section 171-A of the Code. Sub-section (2) explains the meaning of the expression ‘free exercise of the electoral right’ by including within it certain things while at the same time not prejudicing the generality of the provisions of sub-section (1). It says vide clause (a) that without prejudice to the generality of the provisions of sub-section (1), whoever either threatens any candidate or voter, or threatens any person in whom a candidate or voter is interested, with any kind of injury, it shall be deemed to be an interference with the free exercise of the electoral right of such candidate or voter, as the case may be, within the meaning of sub-section (1). It says vide clause (b) that without prejudice to the generality of the provisions of sub-section (1), whoever either induces a candidate or a voter or attempts to induce a candidate or a voter to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or of spiritual censure, shall be deemed to be an interference with the free exercise of the electoral right of such candidate or voter, within the meaning of subsection (1). Sub-section (3), while excluding certain things from being considered as interference, says that a declaration of public policy or a promise of public action, or the mere exercise of a legal right without any intention to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section.
In Raj Raj Deb v. Gangadhar Mahapatra, a candidate at an election represented himself as ‘Chalanti Vishnu’, a representative of Lord Vishnu, before the voters and impressed upon them that anyone not voting for him would commit a sin against the Hindu religion and sacrilege against the deity. He was held guilty under section 171-F for committing the offence defined under this section.
Booth capturing, a new addition to the list of corruption practices and electoral offences
Snatching votes by terror and coercion is against the essence of democracy. In fact this has been one of the major reasons for the disenchantment of the people with the sanctity of the electoral process itself thereby losing their faith in the democratic government. Though the Election Commission has taken sterner measures and has also issued direct warnings against booth capturing and rigging including shoot-at-sight orders or countermanding of the poll and rescinding of voting at the booths affected by the booth capturing, it had become a futile exercise. Since the early eighties, complaints regarding booth capturing have been steadily increasing, therefore, Sub- Section (8) was inserted in Section 123 of the Representation of People Act, 1951 by Amending Act No. 1 of 1989, specifying booth capturing by a candidate or his agent or any other person as corrupt practice.
In 1989 it was provided that for these purposes s 123(8) booth capturing shall have the same meaning as s 135A of that Act, which was also newly inserted by the same Act making booth capturing an electoral offence as well. The said Section 135 A reads as follows; ‘Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine, and where such 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.
There are several reports suggesting that the first polling booth that was captured during an election was in 1957 in the Rachiyahi area of Begusarai district. But it is still not clear if that incident could be termed as Booth Capturing. Booth capturing, a common occurrence in the era of paper ballots, has reappeared in the 2014 Lok Sabha elections. But to an extent, it has been controlled by the introduction of Electronic Voting Machines. The Supreme Court in Basanagouda vs. S.B Amarkhed has noted that booth capturing wholly negates the election process and subverts the democratic set up which is the basic feature of the Constitution.
Filing of false affidavits as an electoral offence under the RP Act
Filing of false affidavit or concealing any information in the affidavit filed by the candidate is considered as offence under Section 125A of RP Act. Any person who commits a forementioned offence will be punished with imprisonment for 6 month or fine or both. But, the matter of concern is that there is no clear provision for follow-up action in the event of candidates filing false affidavits. Hence, there are several complaints of the false statements in affidavits, which mislead the electors. Ashwini Kumar Upadhyay vs. Union of India
Advocate Ashwini Upadhyay filed a public interest litigation in the Supreme Court under Article 32 of the Constitution seeking to seek directions for making the filing of false affidavit in elections an offence.
In his PIL citing nearing elections, Upadhyay sought directions to the Centre “to make false statement or declaration before the Election Commission, Chief Electoral Officer, District Election Officer, Presiding Officer or other similar authority, an electoral offence, in line with the Important Electoral Reforms proposed by the Election Commission of India”. He contended that the Law Commission of India had proposed to make filing false affidavit a cognizable offence with 2 years of imprisonment and that the offence should also be included under Section 8(1), which would attract disqualification from the elections.
However, the Government has been ignorant towards this suggestion. Upadhyay also relied on the recommendation of the Election Commission of India made on February 3, 2011, to amend Section 125A of the RPA, 1951, to provide that any complaint regarding false statement in the affidavit in connection with the nomination paper shall be filed before the Returning Officer concerned within 30 days from the date of declaration of the election and that it shall be responsibility of the RO to take proper follow-up action. Alternatively, a complaint can be filed directly before the Magistrate. He said the ECI has time and again stressed on the importance of candidates filing true information in their affidavits. The filing of false affidavits in matters of election can have extremely serious consequences as it affects the purity of elections and in order to make an informed choice, the elector has the right to know the correct information regarding the candidates. In Krishnamurthy vs. Siva Kumar, the Court has held that incorrect and false information interferes with the free exercise of the electoral right of the voter. It was contended that section 125A of RP Act makes filing of false affidavit an offence punishable with just six months imprisonment, but it was a much serious offence and should be included in the corrupt practices under section 123 of RP Act and hence the candidate must also be disqualified from contesting elections.
The Court held that filing of false affidavit is a serious offence and is against the concept of free and fair elections, but also noted that they cannot direct for a legislation as it is the duty of the Parliament. Next hearing of the matter is in the month of August, 2019.
Distinction between corrupt practices and electoral offences
The Supreme Court in Gadakh Yashwantrao Kangaroo vs. EV Alias Balasaheb Vikhe Patil held that in order to ensure that elections are held in a free and fair manner enabling men of high moral and ethical values to win, the law has laid down certain rules of electoral morality and prohibited certain acts of commission and omission which sully the purity of elections and have corrupting influence and vitiating effect on the outcome of elections. Some of these acts have been branded as ‘corrupt practices’, while the others have been termed as ‘electoral offences’.
Corrupt practices are given under Section 123of the RP Act. Electoral offences, on the other hand are laid down both in the IPC (chapter IXA) and in the RP Act (chapter III of part VII). The electoral offences under the IPC are criminal in nature, relatable to all elections held under any law to any elective body in the country, the corrupt practices and electoral offences under the RP Act are specifically relatable only to elections held under that Act to Parliament and State legislatures, and not to other elections including the elections to the offices of the President and Vice- President of India.
The fundamental distinction between these two classes of prohibited acts is that when a corrupt practice is committed by a candidate, or by someone else with his consent, it has the effect of vitiating the whole election and will result in the election of the candidate being declared void, the commission of an electoral offence does not have such fatal bearing on the election result. In the former, the whole constituency suffers inasmuch as the candidate loses his seat and the constituency goes without representation in the legislature, till another election is held to replace the unseated member; in the latter, only the persons committing the electoral offences suffer for their criminal liability.
The further noteworthy point here is that any grievance relating to the commission of corrupt practice can be agitated only after the election is over and only in the election petition filed in accordance with the provisions of Article 329(b) and Part IV of the Ac; but the commission of an electoral offence can be taken cognizance of as soon as it is committed and the process of law set in motion immediately thereafter, in the same manner in which any other criminal activity is investigated and tried under the provisions of the Criminal Procedure Code, 1973.
Commission of a corrupt practice entails only certain civil disabilities, like, disqualification for voting and for contesting elections for certain period; but any electoral offence if committed will be visited with criminal liability and may result in imprisonment or with fine or with both, apart from attracting civil disabilities of voting and contesting elections in the case of certain specified electoral offences.
The concept of free and fair election relates to political liberty and equality. Being ‘Free and Fair’ in matters of election connotes that no one under the electoral process is in bondage of another or is influenced by another person in any way. If elections are conducted in an unlawful manner, the public will lose their trust in the procedure of elections and in Democracy. Hence, Free and fair elections are the foundations of democratic form of government.
On the basis of above discussion, I would like to make a few suggestions for conducting the elections in a fair manner and they are:
(i) The Election Commission should not solely be responsible for free and fair election, government, as well as electorates, should all be made responsible for free and fair election. There should be complete awareness amongst the people. Such awareness classes can be conducted. It must a combined effort from all the three parties;
(1) Election Commissioner and officers,
(2) Political parties and candidates
(3) general public.
(ii) Citizens of India should not only be aware of the right to vote but also of the right to elect freely and fairly and of bad consequences if involved in corrupt practices at election. Also stringent and sudden action must be taken against any person who commits corrupt practices or electoral offences.
(iii) The quantum of punishment, particularly the amount of fine, prescribed under the IPC are considered as extremely low in the present scenario. It is also felt that the punitive provisions should be relooked so as to meet the expectations of the present electorate and some of these offences call for sterner punishment.
(iv) Election Commissioner must ensure that the model code of conduct is followed.
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