Election Offences In INDIA

Introduction –

Power when misused by the authorities poses a threat on the governance of the state. India being a democratic country, one of the most essential part of upholding democracy is via conducting elections in fair manner. Elections is a crucial element for establishing as well as continuing democracy in every country. Indian Constitution guarantees democratic republic nation to all of its citizens and with this each and every citizen of India has been given the power to choose their own representative through the mode of Elections. Apart from this, the Constitution of India has made certain independent bodies for various purposes, so as to ensure that there is no interference of Legislative or Executive in the working of such independent bodies. Election Commission is one of the Constitutional Authority which has been bestowed with the function to conduct free and fair elections in India. 

Election Commission has absolute sovereignty in terms of its functioning with respect to organizing free and fair elections and the Commission descends its power from Article 324 of the Indian Constitution. This constitutional body is the permanent body and never dissolves. Election Commission has wide jurisdiction which includes to conduct elections for the President, Vice-President, legislative bodies at both Centre and State level. As the Commission holds a huge responsibility and has been conferred with certain powers too, so as to maintain the decorum of Elections within the country and make sure they are held in fair and impartial manner. 

But there are certain offences committed related to the elections and Representation of People Act 1951 and Indian Penal Code 1860 mentions various electoral offences and it assures punitive measures in case of any offence or breach. Apart from these laws, there are “Moral Code of Conduct” laid down by the Commission. This is a set of guidelines which need to be followed by the candidate and his party at time of elections and even though, Moral Code of Conduct has been given a lot of importance, it is often witnessed that parties do violate it. some of the common guidelines are like, the contestant needs to file an affidavit mentioning all his criminal charges, pending suits and charges, convictions if any against the person. After the affidavit if filed, the information is circulated in public so as to make sure that people are aware of his past criminal records and are wise enough to choose a candidate for their votes. Usually, there are lakhs of funds used for campaigning and promotion and to limit the excessive use of money for drawing illicit attention of people, certain limitations are fixed by the Election Commission regarding the money spent for electioneering. 

Electoral offences are the offences which not just affect the person, party or candidate but it affects the whole democracy of a nation and its ability to conduct free and fair elections and thus it was important to recognize and penalize electoral offences separately, so as to implicate that they came under serious crimes and not just some mere trivial offences. 

Read – Animal Rights in India

Empowerment of Election Commission is Necessary –

Just and impartial elections are considered to be the foundation for every democratic government. Thus, it is vital to have a legislation which ensures security from any sort of harm, terror, bribery, corrupt practices, that the candidates or parties must be involved in, during the election period. Election Commission was bestowed and formed to serve this very purpose, that elections are conducted in the right way and are free from illegal and wrongful activities. The Commission has taken various steps to curb all kinds of electoral offences but the irony of the situation is that even though there are laws for many of such offences, they fail to instil fear among these contestants and their parties. The problem lies with implementation of these legislations, and to improve the implication there is urgent need to stimulate and increase the powers of the Election Commission of India for better results. 

Election Commission was founded by the virtue of Article 324 and it is the highest Authority responsible for conducting the entire procedure of Elections in India except for the power to adjudicate the serious election offences committed by the officer, candidate or any party member etc. There are many guidelines laid down by the Commission to control malpractices in Indian Elections. Post-independence, there has been instances where the Supreme Court has started criminalizing politicians, assessment of the wealth used for campaigning stuff, checking their background even before accepting their nominations. With better technology and introduction of Electronic Voting Machine (EVM), attempts were made by the Commission to increase transparency during elections. Limits have been set by the Commission with regard to election expenditure in order to lower the rate of election offences. 

Whenever there are incidents of electoral malpractices or misconducts, the Election Commission receives these complaints and arranges inquires against them. Till the time when elections are being conducted, the decision and inquiries are being held by the Commission for the complaints received by them. Although, once the Elections are over and the results are announced, then the Commission no more possesses any authority to pass a verdict with regard to corrupt practices occurred during elections or post elections. Many scholars have recommended that the power of Election Commission, should be expanded with reference to hearing and decision making for such electoral offences. The Commission should also have the power to file petition against any candidate or specific party for setting aside the election of such candidate whom they think was involved into bribing or corrupt practices, but the Commission should have substantial documents and evidence to prove these allegations in the Court. 

There are around 22 offences mentioned under the Representation of People’s Act 1951 and some of the significant electoral offences which are punishable are- 

• Promoting enmity between classes of citizens – as per Section 125 of the Act 1951, when the efforts are made by the candidate himself or the party to promote any kind of hatred between various communities and classes of India on the grounds of religion, race, sex, caste, etc then it is identified as an offence. The accused person is liable for punishment for term upto 3 years imprisonment or fine or both, as the Court may deem fit. 

• Filing of false affidavit– section 125-A of the Act, states that when false affidavit is filed by any candidate or he/she tries to conceal any information in the affidavit about themselves, then it comes under an electoral offence. The alleged person is liable for punishment of 6 month imprisonment or fine or both. Even though, this comes under the purview of electoral offence there is no further provision describing any follow-up action against the candidate. 

In the landmark judgment of Krishnamurthy v. Siva Kumar, it was held by the Court, that any kind of incorrect or concealment of information of candidate shall interfere with electoral right of the voter. Even though Section 125-A penalises filing of false affidavit, this is way more serious offence and should be incorporated under Section 123 of Act 1951 (corrupt practises) and be disqualified from contesting elections for certain period.

• Convening, attending Public Meetings or causing commotion during the concluding hour– as stated in Section 126 of the Act, the election campaigning and propaganda should stop 48 hours before the election poll. In case any public meetings are convened or held during this prohibited hour, or the candidate even attends any such meetings, shall be considered as an offence. The person violating this law shall be punished with imprisonment of 2 years or fine or both. 

Section 127 of the Act mentions that, causing any kind of disturbance in the public meeting is also an electoral offence, by provoking others to cause disruption and the person shall be punished with imprisonment upto 6 months or fine of Rs 2000, or both. If the Chairman of Election meeting has the apprehension about a person acting in disorderly manner then he can report to the police officer, and the police officer may also arrest him, if the situation becomes out of the way. 

• Limitation on printing of Pamphlets, posters etc– section 127-A of the Act states that restriction are imposed for publishing posters in order to maintain the identities of these publication houses or the publisher of these documents, so that in case of any objectionable matter written against any religion, race, community caste etc, then the person can be easily found and is liable for imprisonment for a term of 6 months or with fine upto Rs 2000 or with both. 

• Maintaining the Secrecy of Voting and not persuading voters– section 128 of the Act 1951, stated that it is mandatory on the part of every officer who performs the duty of recording or calculation of votes once the voting is done, and whosoever is found to violate his duty as bestowed upon him shall be punishable with imprisonment for a term of which extends to 3 months of imprisonment or fine or both. Further, any of the appointed election officers should not be involved in influencing or threatening any of the voters during the elections either to give his vote or deter him from giving vote. If any such officer is found persuading any voters, then he shall be liable for punishment of 6 months imprisonment or fine or both. 

• Prohibition of Canvassing – section 130 of the Act states the following acts which are prohibited within the polling station or in any public or private place within 100 meters from the polling station. They are-

1. Canvassing or appealing of votes 
2. Pleading or imploring the vote of any elector 
3. Cajoling or coaxing any voter to not vote for any particular candidate or even urging any person from not giving vote at all in the elections 
4. Displaying of any sign or notice of the candidate or political party 

If any person is found to be indulged in any of the above-mentioned activities, then he/she shall be liable for penalty with fine of Rs 250 and if it is repeated or done in masses, then the offence is cognizable in nature too and the person can be arrested. 

• Improper conduct inside or nearby the Polling Station– section 131 and 132 states about the improper conduct such as use of a device to amplify the human voice, often used for campaigning is prohibited to ensure the non-interference in the voting procedure and working of officers. In case any person is found, doing mischief or misbehaving then the presiding officer has the authority to direct the police officer to arrest that person and even seize his device used for creating the nuisance near the polling station. 

It is expected from everyone that, voters and officers working should maintain discipline and adhere to the directions of the booth officers during the voting hours. Any misconduct causing hindrance to the voting shall be removed from the polling station and if the accused person tries to re-enter the premises or make some other hindrances then he shall be punishable with imprisonment of 3 months, or fine or both. 

• Hiring or procuring of vehicles for conveyance during election– section 133 of the Act states that if there is any kind of procurement of vehicles for free movement of the voters shall amount to an electoral offence and the alleged person shall be penalised with imprisonment of 3 months and fine. Not only this is considered as an offence but if the candidate procures or hires vehicles by any other person or by himself for free conveyance of the voters than it shall also come under the purview of corrupt practices. 

• Breach in official duty during election and carrying arms– section 134 of the Act states, that person commits any breach in following his duty during the election period, shall be penalised with fine of Rs 500 and it is further stated that government agents cannot tag themselves as agent of any particular candidate who is contesting the election or else the officer shall be liable for punishment with imprisonment upto 3 months, or fine or both. Apart from this, no one except the police patrolling the polling station is allowed to keep arms as per the Arms Act. If anyone else is found carrying arms then he shall be punished with imprisonment of upto 2 years or fine or both. 

• Removing ballot papers from polling booth and booth capturing– section 135 of the Act states that whosoever tries to take a ballot paper out of the polling station during the election hours, has committed an electoral offence. The accused person shall be liable for punishment for term upto 1 year or with fine upto Rs 500 or both. 
  • Further Section 135-A of the Act, mentions about Booth Capturing, that any person who commits the offence of booth capturing shall be punishable with imprisonment from 1 to 3 years and with fine as the Court may deem fit. In cases, if such an offence is committed by the government personnel then he shall be liable for punishment not less than 3 years extending upto 5 years along with fine. 
  • Booth capturing has been the most common electoral offence at the time of paper ballots, and was marked again in 2014 Lok Sabha elections. But with technological advancement and advent of EVMs, this has been controlled to huge extent. In the prominent case of Basanagouda v. SB Amarkhed, it was held by the Apex Court that booth capturing is really disturbing and refutes the election process and it also undermines the ability of a democratic set up of the country. 

• Paid holiday to the poll workers – Section 135-B of the Act states, regardless of the place wherever the person is employed, whether it is business, trade or service. Every employee is permitted to leave his working premises, so as to cast his vote whether it is for Lok Sabha or Legislative Assembly. If any employer is found contradicting such provision shall be punishable with fine of Rs 500. 

• Prohibition on Sale of Alcohol and other offences – Section 135C of the Act mention that there should be no sale or distribution of alcohol or any other fermented substance within the 48 hours of polling station. And if anyone is found doing so, then the accused shall be liable for punishment of upto 6 months imprisonment or fine of Rs 2000 or both. Further, if any person deceitfully destroys or spoils any nomination, removes the list or any other document then he/she shall also be liable to be punished. 

As per Section 88 of the Representation of People Act 1951, every candidate is required to submit his account of the entire election expenses to the District Election Officer within 30 days of the declaration of results. And if the candidate fails to do, without any prudent reason then he/she shall be disqualified from conducting elections for the next 3 years. However, in cases where the candidate has exceeded the limit of electoral expenses as mentioned under section 77(3), then he shall be disqualified from contesting election for period upto 6 years. 

Read – What is Contempt of Courts Act ?

Electoral Offences Under IPC –

Apart from electoral offences mentioned under the Representation of People Act 1951, there are some other offences listed under Indian Penal Code 1860, section 171A to 171I deals with electoral offences. The Chapter IX-A was incorporated in IPC in 1920s with the view to curb the electoral offences and provide punishment for such misconduct. The main objective of these section was to keep the election fair for all and penalise those who tried to disrupt the election process in any manner or through corrupt manner. It was also an attempt to secure the purity of our franchise. 

Some of the electoral offences described under IPC are as follows – 

1. IPC has defined bribery under the corrupt practices and it states that bribery is considered to be committed by the person who gives gratification to some other person in form of food, clothes, drink or any other form. The person accepting such gratification is equally responsible for bribery and shall be liable for punishment upto 1-year imprisonment or fine or both as per Section 171-E.

2. The person who interferes directly or indirectly with the free exercise of any of the electoral rights shall also be penalised with 1 year imprisonment or fine as per section 171F of IPC. Further, if the person impersonates as some other person and votes on behalf of someone else shall also be punished with same punishment. 

3. If a person has incurred some expenses or authorised some expenses without the knowledge of the candidate or holding any meeting or in other way for promotion of such candidate, then such person shall be liable for fine of Rs 500 under Section 171H of IPC. Even if a lawyer, fails to do keep the accounts of the election, the he shall be liable for fine of Rs 500 too under Section 171I of IPC.

In the famous case of Raj Raj Deb v. Gangadhar Mahaputra, the candidate had represented himself as “Chalanti Vishnu” who is considered as representative of Lord Vishnu before the voters and convinced them into believing that anyone who doesn’t vote for him would be committing a sin against the hindu religion and blasphemy against the Vishnu deity. Thus, he was held guilty under section 171F for impersonating as someone else for manipulating his vote bank. 

Conclusion –

Therefore, from the above content it can be inferred that the main essence of democratic election, is to rever the concept of “freedom of choice”. In fact, the whole purpose of conducting elections is to know the popular choice of people who are capable for representing their nation and discharging their duties too. As discussed above, there are many of the offences committed to tamper the results of elections, which need to be controlled and curbed in order to uphold the true choice of the people. Hence, it can be said that free and fair election origins from the idea of political liberty and equality, the idea itself implicates that in this electoral process no one is under the oppression of another or is influenced by another person and they have the right to choose their own representative. But if, the election processes are tampered, then people will lose their faith on Democracy and it will be tyrannical not only for the government but for the entire nation, as it is the main base holding all pillars together. Thus, it is important to maintain the dignity of our elections and conduct them in impartial and just manner. 

-This Article has been authored by RHEA BANERJEE Pursuing B.A.LL.B from Indore Institute of Law.

Refer – Representation of People Act, 1951

Read – Anti Defection Laws in India