CHAPTER III

CORRUPT PRACTICES AND ELECTORAL OFFENCES

Democracy has not been a free gift for most of the present democratic nations including India.
India earned its independence and democracy after a long freedom struggle and free and fair
elections are a basic postulate of a democratic process. Today the democratic process is well
defined and we have the legislation to protect and safeguard the purity and freedom of elections.
A good electoral system coupled by impartial electoral machinery, are pre-requisites of free and
fair elections. Besides these, it is also necessary that contesting candidates and their workers do
not commit certain objectionable acts to swing the result of the elections in their favor.
Nevertheless, it has been observed in actual practice that the candidates, in order to win the
election, resort to such corrupt practice which caste doubt upon the sanctity of free and fair
elections. Resorting to these banned practices by the candidate as a means of influencing voters
constitute a direct interference in free and fair elections. These corrupt practices which are
outlined in Section 123 of the Act include, bribery and gratification, undue influence, booth
capturing, making appeals on grounds of caste, race, community or religion, creating hatred or
enmity between citizens on grounds of religion, etc., publication of false and defamatory matter,
hiring or procuring of vehicles and vessels, incurring or authorizing excessive expenditure and
seeking help from government employees. fn practice, it has been seen that the candidate spends
many times more than the prescribed limit. Thus law is followed on papers which are submitted
to the Election Commission. Since law has to take its own course to prove the alleged violations,
resultantly, the candidate in the meantime succeeds in obtaining the desired results. The
examples can be multiplied and the use of money power in the election remains a factual reality.
Thus the unbridled gap between the law and the social realities is tantamount to undermining the
concept of free and fair elections.

All the eight corrupt practices enumerated in Section 123 of the Representation of People Act,
1951 fall under these three categories. The basic cause of these abuses is the lack of political
Consciousness among the voters and the opinion making elites and the tendency of the political

68
parties and individual aspirants to make unauthorized and unscrupulous use of whatever
advantage can be had at a given time. An effective code of conduct for political parties based on
national consensus would go a long way in curbing some of the abuses.1

1. CONCEPT OF CORRUPT PRACTICES

The essence of a democratic election is freedom of choice. In modern times elections have been
primarily associated with the system of representative form of government. In all democratic
countries of the world the electoral systems were established on the basis of the natural right of
the individuals. For putting the system into action, we find that since the 19th century states have
been relying upon political parties for the choice of candidates in accordance with the principles
and methods of the party machinery. With the passage of' time laws were enacted to regulate the
entire electoral system. Once the candidates jump into fray, their prime objectives is to win the
election, so that his desire to represent the electorate is fulfilled. Winning an election has not
been so easy task and since the candidate, his party followers and workers, as well as his agent,
want victory and this desire too often causes them to adopt undesirable tactics. Laws have,
therefore, been made restraining prohibited activities which may not only regulate the conduct of
the candidate at elections but declare certain activities as corrupt practices.2

Corrupt practices is basically a general term and include bribery, undue influence etc. having
specific reference to electoral systems. Such practices were declared against the law by many
nations in the beginning of 19th century as these were considered interferences in the free
exercise of right to vote. In later years legislation acquired a new dimension and covered many
more aspects including the size of expenditure, contribution and the specification of purposes for
which the money could be spent.

In India the law relating to corrupt practices was for the first time introduced by the Government
of India Act, 1919. The law was virtually a reproduction of the provisions of the British Act of
1883 with slight modifications. The Indian Election Offences and Inquiries Act, 1920 which also
introduced certain amendments in the Indian Penal Code, disqualified persons found guilty of

1 L.M. Singhvi, "Basis Postulates", Seminar, 15th, November 1972, p.18

2 Generally, Encyclopedia Britannica, Vol.6, 549-550, 1998

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corrupt practices. The Corrupt Practice Order, 1936 did not make any significant change in the
existing provisions regarding corrupt practices. The position continued till the enactment of the
Representation of the People Act, 1951, the first Statute enacted by our Parliament to regulate
matters concerning elections including corrupt practices. This way we find that the emergence of
the concept of corrupt practices has remained closely connected with the system of election of
representatives in all democratic countries of the world. The basic thrust behind the evolution of
the concept of corrupt practices has been to enable a voter to exercise his right to vote freely and
fearlessly. It is also an injunction to all those who may like to win elections by employing means
which are not only undesirable, unethical but are also prohibited by specific legislation.

It cannot be denied that the credibility of any democratic institution is dependent upon the purity
of electoral process through which succession to this institution is to be made. In other words, if
the elections are free and fair. then only there would be true representation of the people in the
Government. This objective is primarily sought to be achieved by framing rules for election
which provide to every citizen an equal opportunity to participate in the democratic process.
Further, this has also been sought to be achieved by creating an appropriate machinery to see that
the elections are conducted strictly in accordance with the rules framed for the purpose. Lastly,
the objective of fair and free elections is also sought to be achieved by creating an atmosphere
where people could form an objective opinion about their selection of the candidate of their
choice without any interference from any quarter. Thus, fairness of an election is dependent upon
the existence of these pre-conditions.

It must also be stated that the choice of a suitable candidate by the voters involve so many
consideration. Merits and demerits of a candidate and their political parties and programmes are
some of the considerations which usually weigh the mind of the voters in selecting a candidate.
When considerations other than the merits of the candidates and policies overtake the mind of
the elector or influence his choice, we may say that the purity of process of election has been
contaminated. If this happens, it is treated as an interference with the electoral right of the voter.
Such acts of interferences are called corrupt practices. It may take various forms. It may be in the
form of an inducement, hereby compelling him to vote for a candidate whom he would not have
voted for in the normal course. Sometimes attempt may be made to purchase voters or put them
under threats so as to change their mind. There may be various other methods resorted to which

70
are not only unwarranted but have been declared as illegal practices by or under the law and the
candidate may still make use of such methods bypassing all norms statutory or otherwise. The
Representation of People Act, 1951 as amended from time to time, Conduct of Election Rules,
1961 and the Indian Penal Code, 1861 are some of the statutes which have taken care of all such
practices resorted to by candidates or his election agent or any other person on his behalf.

Whatever may be the provisions in the statute book covering the subject matter, the most
important aspect that has to be taken into account is the role of the machinery constituted under
the law for implementing the mandate of these statutes. It is in this context that a reference to
Article 324 of the Constitution of India becomes inevitable. The provision vests the authority of
superintendence, direction and control of these elections in the Election Commission of India.
The Election Commission is required to work within the framework of Article 324 and other
provisions of law and the rules made there under. In a way the provision contained in Article 324
not only confers powers on the Commission but also entrusts him with duties relatinQ to the
same subject matter. Thus the Election Commission has all the powers to give proper directions
and pass necessary orders for a free and fair poll. If any complaint from any quarter is received
alleging violation of the law and the rules by any of the candidates during elections, he is the
competent authority to take full cognizance of the matter, issue directions or orders which he
may consider appropriate in the eyes of law. This way, corrupt in by the candidate himself or on
his behalf, i f brought to the notice of the Election Commission can be taken cognizance of by
the Commission itself. There may he situations where, in the opinion of the Election
Commission, a particular complaint may not he considered as of establishing a prima facie cause
in favor of the complainant and consequently the same may be dismissed. But when a candidate
wins the election with such allegations, his election can still be set aside by an election tribunal if
the complainant is able to substantiate his allegations dismissed earlier by the Commission. Thus,
we may find that purity of electoral process is always protected by law. But it is equally
important that the public remains vigilant and if they come to know of any unfair practices, the
matter must be reported to the appropriate authority. No law can be implemented in true letter
and spirits unless there is a solid public support behind it.

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 2. TYPES OF CORRUPT PRACTICES

There are 8 types of acts which are regarded as corrupt practices.3 They are:

(i) Bribery;

(ii) Undue influence;

(iii) Promotion of enmity or hatred between different classes of citizens of India on

grounds of religion, race, caste, community of language;

(iv) Publication of false statement in relation to the personal character or conduct of

any candidate;

(v) Illegal hiring or procuring of vehicles or the use of such vehicles for free
conveyance of voters;

(vi) Incurring or authorizing election expenditure in excess of the prescribed limit; and

(vii) Obtaining or procuring assistance from Government servants of specified

categories.

(viii) Booth capturing by a candidate or his agent or other person.4

The law originally divided corrupt practices into three categories. namely,

a. Major corrupt practices;

b. Minor corrupt practices; and

c. Illegal practices.

Corrupt practices mentioned at (i), (ii), (v), (vi), (vii) and (viii) above were classified as major
corrupt practices.5 The remaining are minor corrupt practices and illegal practices were either
abolished all-together or converted into electoral offences.

3 The Representation of People Act, 1951, section 123.

4 Ins. by Act 1 of 1989, section 13 (w.e.f. 15-3-1989).
5 The Representation of People Act, 1951, section 123.

72
A joint Select Committee of Parliament on Amendments to Election Law set up in 1971 again
considered the matter and recommended in its Report6 the reclassification of corrupt practices
into corrupt practices and illegal practices. The Committee suggested that the existing corrupt
practices of (1 ) illegal hiring or procuring of vehicles for free conveyance of voters and (2)
incurring or authorizing of election expenses in excess of prescribed limit might be made as
illegal practices and the remaining corrupt practices might continue to be regarded as corrupt
practices. The underlying idea of this suggestion of the Joint Committee was that while the
commission of either the corrupt practice or the illegal practice should result in the election of
the returned candidate being declared void, the period of disqualification which previously
automatically followed the finding of guilt by the High court in such cases might vary depending
upon whether the returned candidate was guilty of corrupt practice or an illegal practice. The
Committee further recommended that the period of disqualification for commission of a corrupt
practice might continue to be six years as was then prescribed and the period of disqualification
for commission of an illegal practice might be fixed for duration between 2 years and 6 ,,e.ars at
the discretion of the High Court in each case.

(i) Bribery

While exercising his franchise, a voter should be guided by his reason and not by extraneous
considerations brought to bear upon by him by inducement. Therefore, the election law makes
'bribery'7 as the first and the foremost corrupt practice. 'Bribery' as defined has wide amplitude
and covers as large a field as possible of activity which may take the form of inducement
affecting any electoral work.

The corrupt practice of bribery is committed not only by a person, who provides gratification,
but also by the person who accepts such gratification.

The receipt of, or any agreement to receive, any gratification, whether as a motive or a reward,
by a person for standing or not standing as a candidate or for withdrawing or not withdrawing his
candidature or for voting or refraining from voting also amounts to a corrupt practice. The
receipt of any such gratification not merely for himself but for any other person with a view to

6 Chapter XIII of the Joint Committees Report (Vol. 1).

7 The Representation of People Act, 1951, Section 123(1).

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inducing or attempting to induce such other person to vote or not to vote or to withdraw or not to
withdraw his candidature at an election is equally prohibited. But the payment made to a
candidate not to withdraw when the last date for withdrawal of candidatures is already over may
not amount to corrupt practice of bribery.

A gratification to constitute bribery may not necessarily be restricted to pecuniary gratifications

or gratifications estimable in terms of money. It includes all forms of entertainment and all forms
of employment for reward.

General promises of public action or redressal of public grievances by a candidate holding a

responsible position in the Government like a Minister may not fall within the mischief of law
making bribery a corrupt practice. The promise which is not made to a particular voter or voters,
but to the general body of voters, without distinguishing between those who were favourably
inclined and those who were not, such promise will not Call corrupt practice. 8 However, the
energy to do public good should be used not on the eve of elections but much earlier and if such
things are done on the eve of an election, although for general public good, they are when all is
said and done an evil practice. Even slight evidence might change this evil practice into corrupt
practice is a very thin one. The grants sanctioned or announced by the Government on the eve of
elections in the form of exemption from land revenue, or by way of additional dearness
allowance to Government employees and the like do not attract the definition of corrupt practice
as the Government cannot be considered to be an agent of a candidate even if he belongs to the
ruling party.

(ii) Undue Influence

The second type of corrupt practice is undue influence. 9 Undue influence, as defined in the law,
is wide in its term and contemplates four distinct forms of interference with the free exercise of
any electoral right, namely, direct interference, indirect interference, direct attempt at
interference or indirect attempt at interference.10 Electoral right means the right of a person to
stand or not to stand as a -candidate or to withdraw or not to withdraw from being a candidate or

8 Arun kuntar v. State of Tamil Nadu AIR 1972 SC 2367.

9 The Representation of People Act, 1951, section 123 (2).
10 Abdul Rahintan Khan vs Radha Krushna Biswas Roy, AIR 1959, Orissa 188.

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to vote or refrain from voting at an election: 11 Any interference or attempt at interference at such
electoral right whether direct or indirect is corrupt practice. However, such direct or indirect
interference or attempt to interference must be with the consent of the candidate or his election
agent.

This definition in the election law is wider than the definition of the same expression in the
Indian Penal Code, inasmuch as the words 'direct' or 'indirect' are not to be found in the Penal
Code.12

Undue influence is used in contradistinction to proper influence which may be secured through
affection bestowed or from kindness indulged. A friendly advice or an influence arising from
gratitude or esteem is not undue influence unless thereby the functioning of a free mind is
destroyed.13

A leader of a political party is entitled to declare to the public the policy of the party and ask the
electorate to vote for his party without interfering with any electoral right and such declarations
on his part would not amount to undue influence. Where, however, a Minister abuse his position
and e,ocs beyond merely asking for support for his party candidates the question of undue
influence may arise.14

Likewise, spiritual heads or religious leaders may canvas for candidate at election. But where a
spiritual head or a religious leader particularly leaves no choice to the electors not only by
issuing in writing the Hukum or Farman but also by his speeches to the effect that they must vote
for the candidate, implying that disobedience of his mandate would carry divine displeasure or
spiritual censure the case would be clearly brought within the purview of the corrupt practice of
undue influence.15 Similarly wrath of deities invoked if electorate did not vote for a particular
candidate would amount to undue influence.16

11 The Representation of People Act, 1951, section 79 (d).

12 Baburao Patel & Ors. v. Dr. Zakir Hussain & Ors., AIR 1968 SC 904.
13 Amir Chand Tota Ram, Delhi vs Smt. Sucheta Kripalani, AIR 1961 P&H 383.
14 Id. 13.
15 Ram Dial v. Sant Lal AIR 1959 SC 855.
16 Shubnath Deogam .vs. Ram Narain Prasad , AIR 1960 SC 148.

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 (iii) Appeal on Ground of Religion etc. or Promotion of enmity or hatred
between different classes of citizens of India on grounds of religion,
race, caste, community of language

Purity of election demands that considerations of religion, race, caste, community or language of
the candidate should not play any role in his election and such considerations should not
influence the voters while exercising their franchise. The election law, therefore, specifies that an
appeal on the ground or religion, race, caste, community or language of a candidate is a corrupt
practice.17

An appeal on the ground of religion would be a corrupt practice even if the rival candidates
belong to the same religion.18

Likewise. it is only when the electors are asked to vote or not to vote because of the particular
language of the candidate that a corrupt practice may be deemed to be committed. Where,
however, for the conservation of language of the electorate appeals are made to the electorate and
promises are given that steps would be taken to conserve that language such appeal would not
amount to a corrupt practice.

Not merely an appeal on the ground of religion, but the appeal to, or the use of religious symbols
or national symbols is also prohibited. The law treats the use of religious symbols or national
symbols as a corrupt practice.19

The promotion of, or attempt to promote, feelings of enmity or hatred between different classes
of citizens of India on grounds of religion, race, caste, community or language is a corrupt
practice.20 But such actions or attempts would come within the purview of the corrupt practice
only if committed by the 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 effecting the election of any other candidate.

17 The Representation of People Act, 1951, section 123 (3).

18 Kultar Singh v. Mukhtiar Singh, AIR 1965 SC 141.
19 R. Singh Sidhanti v. Pratap Singh Daulta, AIR 1965 SC 183.
20 The Representation of People Act, 1951, section 123 (3A).

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 (iv) Publication of false statement in relation to the personal character
or conduct of any candidate

The publication of any false statement in relation to a rival candidate is sought to be prohibited
by making it a corrupt practice.21 The object of this provision in the law is to see that the
unscrupulous or scandalous propaganda in the election campaigns is avoided. Such false
statements to come within the purview of this corrupt practice should be made by a candidate or
his agent or by any other person with the consent of a candidate or his election agent Further
such statement should as a matter of fact be false and the publisher should either believe it to be
false or should not believe it to be true. Such statement to constitute an offence be a statement in
relation to the personal character or conduct of a candidate or in relation to his candidature or
withdrawal and should be reasonably calculated to prejudice the prospects of that candidate's
Action. In other words. to prove that the corrupt practice of the al)ovc type has been committed it
must be shown: first. that there has been a publication by a candidate or his agent or by any other
person with the consent of the candidate or his election aent, of a definite statement; secondly,
the statement must be false; thirdly the publisher must either believe it to be false or must not
believe it to be true; fourthly, it must be a statement reasonably calculated to prejudice the
prospects of that candidate's election. Any statement of fact which the publisher bonafide
believes to be true or any statement in relation to the public conduct of a candidate in contrast to
his private character or conduct would not come within the purview of this corrupt practice. The
question as to what allegations can he said to amount to allegations in regard to the personal
character of conduct of a candidate as distinguished from his public character may not be easy to
decide and in order to decide such a question the context in which those allegations were made,
the setting in which that occurred and the circumstances in which those allegations were
published will have to be looked into.22

21 Ibid., section 123 (4).

22 Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773; Pratap Singh Vs. Hardivari Lal , AIR 1970 SC 1500.

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 (v) Illegal hiring or procuring of vehicles or the use of such vehicles
for free conveyance of voters

The next type of corrupt practice is the illegal hiring or procuring of vehicles for free conveyance
of voters. 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 candidate or his election agent
or the use of such vehicles for the free conveyance of any elector to and from any polling station
is a corrupt practice.23

The Election Commission has been issuing instructions since the general election to the Lok
Sabha held in 1980 to curb this corrupt practice by regulating24 the playing of all vehicles on the
day of poll. The candidates are permitted to use only the specified number of vehicles on the day
of poll for the purpose of their election rounds.

(vi) Incurring or authorizing election expenditure in excess of the

prescribed limit

The next type of corrupt practice is obtaining or procuring any assistance other than the giving of
vote for the furtherance of the prospects of a candidate's election from government servants. 25
Not merely obtaining or procuring but abetting or attempting to obtain or procure such assistance
is also a corrupt practice. The underlying policy of such provision is clearly to keep the
government servants aloof from politics and also to protect them from being imposed upon 1-).
those with influence or in position of authority and power.

(vii) Obtaining or procuring assistance from Government servants of

specified categories

Assistance from some Government Servants come within the purview of a corrupt practice,
however be obtained or procured by a candidate or his agent or by any other person with the
consent of the candidate or his election agent.

23 The Representation of People Act, 1951, section 123 (5).

24 Vide Order dated 02.01.1980 of Delhi High Court in C. W no.1 of 1980.
25 The Representation of People Act, 1951, section 123 (7).

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Further the corrupt practice would be committed if such assistance is sought from only the
following categories of government servants, namely:

(a) Gazetted officers;

(b) Stipendiary judges and magistrates;

(c) Members of the armed forces of the Union;

(d) Members of the police forces;

(e) Excise officers;

(f) Revenue officers; and

(g) Such other class of persons in the service of the Government as may be prescribed.

Though the law authorize the Central Government to prescribe other categories of Government
servants also to come within the purview of this corrupt practice as contemplated in item(g)
above. the Government has so far not chosen to specify any category of Government servants
other than those mentioned in items (a) to (t) above.

The above provision is aimed to keep government servants aloof from politics and also to protect
them from being imposed on by those with influence or in a position of authority and power, and
to prevent the machinery of government from being used in furtherance of a candidate's return.

The term candidate is defined in section 79(b) of the representation of People Act, 1951. This
section was amended by Act 10 of 1975, which reads that candidate means a person who has
been or claim to have been duly nominated as a candidate at an election. It was held in Smt
Indira Gandhi v. Raj Narain26 that the obtaining or procuring must be with the 'consent' of the
candidate or his election agent. For establishing this corrupt practice, the candidate must be held
to have obtained or procured the assistance of government servant and he must belong to any of
the specified categories. Help rendered voluntarily by a government servant without any attempt
by the candidate concerned to obtain or procure assistance, does not constitute a corrupt practice

26 AIR 1975 SC 2299].

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of the candidate, whatever be the impropriety of it for government servant himself. A
government servant has a private personality too.27

(viii) Booth Capturing

Booth capturing originally did not figure under the categories of corrupt practices enumerated
under Section 123 of the Act. It was only in 1989 that Parliament included "booth capturing by a
candidate or his agent or other person"28 as one of the eight categories of corrupt practices .
Booth capturing is a type of electoral fraud which was found in India and a few other countries,
in which party loyalists "capture" a polling booth and vote in place of legitimate voters to ensure
that their candidate wins. Though it is a kind of voter suppression, unlike other forms of voting
fraud, booth-capturing is a malpractice witnessed mainly in India and the least subtle of all.

The Explanation to Section 58-A lays down that booth capturing shall have the same meaning as
in Section 1 35-A. Section I35-A which was brought on statute with effect from March 15, 1989
under Amendment Act 1 of 1989. prescribes booth capturimz to be an offence and the person
committing it shall be punishable with imprisonment for a term which shall not be less than six
months and which may be extended to a maximum of two years and-Fine. Where such offence
was 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 one year but which may extend to three
years and fine. Booth capturing has been explained in its explanation thus :

"For the purpose of this section 'booth capturing' includes, among other things, all or any of the
following activities, namely:

(a) Seizure of a polling station or a place fixed for the poll by any person or persons
making polling authorities surrender the ballot papers or voting machines and
doing of any other act which affects the orderly conduct of elections;

(b) taking possession of a polling station or a place fixed for the poll by any person or
persons and allowing only his or their own supporters to exercise their right' to
vote and prevent others from voting;

27 Hafiz Mohd Ibrahim v. Election Tribunal (1957) 13 ELR 262; Rampal v. Bruhn; Prakash, AIR 1962 Punj, 129;
K./1f. Mani v. P.J. Antony, AIR SC 234.
28 Act 1 of 1989, Section 13 ( with effect from 15.03.89)

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 (c) threatening 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."

In the statement of Objects and Reasons for which the amendments were introduced in Section
123 of the Act, "booth capturing" was made an electoral offence under Section 135-A; it was
stated that booth capturing and rigging of elections had been on the increase in the recent past
and to check the evil, booth eapturin(2. had been made an offence and also a corrupt practice.

In S. Bahia. Singh Mann v. Gurcharan Singh'' 29, the election petitioner had stated in the
election petition that he had challenged the election of the returned candidate on the ground of
corrupt practice mentioned in Section 123(8) of the Act. The evidence as had been brought on
record was to the effect that some people had polled votes in place of the real electors or some
people had forcibly cast their votes. The High Court observed that if an elector had cast his vote
at two polling booths or genuine electors had not polled their votes, the offence of corrupt
practice of booth capturing would not he established. The activities which denote 'booth
capturing' are not exhaustive."Nevertheless" these activities have to be of the kind which are
mentionned in clauses (a) to (e) under the Explanation to Section I 35-A of the Act 30 ". The Court
found that the evidence brought on record did not establish any of the activities mentioned in
clauses (a) to (e) under the Explanation to Section 135-A of the Act.

The allegation of booth capturing, if proved, is a corrupt practice under Section 100(1) (b) and
materially affects the result of the election under clause (1) (d) and also is a disqualification.
Therefore, the allegation must be specifically pleaded giving material particulars. The nature and
various acts of capturing booths have been enumerated in the explanation to Section 135-A. They
are only illustrative but not exhaustive. Diverse ways would be innovated to capture booths

29 [AIR 1994 P & H 66]

30 Id at 74

81
and rigging. Nevertheless these activities have to be of the kind which are mentioned in clause
(a) to (e) under the Explanation to Section 135-A of the Act.

Thus, it appears that all the possible act of violence or threat at the polling booths and at counting
centers has been included within the definition of corrupt practice of booth capturing under
section 123(8) of the Representation of People Act, 1951.

3. Electoral Offences

In addition to the corrupt practices at elections, various acts of commission and omission have
been termed as electoral offences. While the commission of a corrupt practice, if found proved,
might cost the elected candidate his election, the commission of an electoral offence would
expose a person who commits it for penal consequences. Further a person committing electoral
offence is liable to punishment irrespective of the fact whether such act was done by him with
the consent of the candidate or not. The following acts are regarded as electoral offence:

(i) Promoting Enmity' between Classes of Citizens in Connection with

Election

The promotion of, or attempt to promote enmity or hatred between different classes of Indian
citizens on grounds of religion, race, caste, community or language feelings is an electoral
offence.31 Any person indulging in such an act is punishable with imprisonment for a term which
may extend to three years or with fine or both.

(ii) Prohibition of Public Meetings during the Specified Period

The election propaganda in the form of public meetings in the polling area is to end 48 hours
before the hour fixed for the conclusion of the poll for any election. 32 If the poll is to be taken on
the 3rd of a month and hours between 7 a.m. to 4 p.m. are fixed as the hours of poll no public
meeting in the polling area can be held after 4 p.m. on the 1st of that month. It is not merely the
convening or holding of a public meeting during this prohibited period which is barred; but
attending to any such meeting is equally an offence.

31 The Representation of People Act, 1951, section 125.

32 Ibid., section 126.

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 (iii) Disturbance at Election Meetings during the Specified Period

Disturbance at an election meeting is prohibited and it is an electoral offence to do so. Any

person who at a public meeting of a political character acts, or incites others to act, in a
disorderly manner for the purpose of preventing the transaction of business for which a meeting
has been called commits an electoral offence and is liable for punishment with fine which may
extend to Rs. 250.33

Public meetings which are held between the date of issue of notification calling the election and
the date on which such election ends only are covered by the above prohibition. The disturbance
caused at election meetings during the other periods would be governed by the general law.

If the Chairman of an election meeting reports to any police officer about any person actinL, in
disorderly manner at the meeting. such police officer may require that person to declare to him
immediately his name and address and if that person refuses or fails to declare his name and
address or lithe police officer reasonably suspects him of giving false name or address the police
officer may arrest such person without warrant.

(iv) Restrictions on Printing of Pamphlets, Posters etc.

The election law imoposes certain restrictions on the printing and publication of posters,
pamphlets etc. by any person.34 These restrictions have been imposed with a view to establishing
the identity of publisher and printer of such documents so that if any such document contains any
matter or material which is illegal or objectionable like appeal on ground of religion, race, caste,
community or language or character assassination of any opponent etc. necessary punitive or
preventive action may be taken against the persons concerned.

(v) Maintenance of Secrecy of Voting

It is incumbent upon every officer, Clerk, agent or any other person who performs any duty in
connection with the recording or counting of votes at an election to maintain and aid in

33 Ibid, section 127.

34 Mid., section 127-A.

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maintaining the secrecy of voting.35 The contravention of this rule makes him liable to
imprisonment for a term which may extend to three months or wit fine or with both.36

(vi) Officers etc., at Elections not to Act for Candidates or to Influence

Electors

No District Election Officer or Returnimi, Officer or Assistant Returning Officer or Presiding

Officer or a Polling Officer or any officer or clerk appointed by the Returning Officer or by 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 for the furtherance of the prospects of the election of a
candidate, other than giving of his own vote. 37 These officers and any member of a police force
are prevented from (a) persuadinL, any person to give his vote at an election, or (b) dissuading
any person from giving his vote at an election in any manner. Anv contravention in this regard is
punishable with imprisonment which may extend to six months or with fine or with both.
Further. the above offence is cognizable.

(vii) Prohibition of Canvassing in or Near Polling Station

On the date of poll, the commission of any of the following acts within the polling station or in
any public or private place within a distance of 100 meters of the polling station is prohibited 38
namely:

(a) canvassing for votes: or

(b) soliciting the vote of any elector; or

(c) persuading any elector not to vote for any particular candidate; or

(d) persuading any elector not to vote at the election; or

(e) exhibiting any notice or sign (other than official notice) relating to the election.

35 Ibid., section 128.

36 Ibid., section 128(2).
37 Ibid., section 129.
38 Ibid., section 130.

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 (viii) Disorderly Conduct in or near Polling Station

On the date of poll, using or operating, within or at the entrance of the polling station or at any
public or private place in the neighborhood of a polling station, any apparatus for amplifying or
reproducing the human voice, such as a megaphone or a loudspeaker is prohibited, 39 so that no
annoyance is caused to any person visiting the polling station for the poll or that no interference
is made with the work of the officers and other persons on duty at the polling station.

(ix) Misconduct at the Polling Station

For the smooth conduct of poll at the polling station, it is necessary that no person should be
allowed to misconduct himself at the polling, station during the hours fixed for the poll and every
person should be required to obey the lawful directions of the Presiding Officer.40

(x) Penalty for illegal Hiring or Procuring of Conveyance at Elections

Illegal hiring or procuring of vehicles for free conveyance of voters is. not only a corrupt
practice- which if proved will Vitiate the election of the returned candidate, but is also an
electoral offence.

(xi) Breach of Official Duty in Connection with Elections

If any person belonging to any of the specified categories is, without reasonable cause, guilty of
any act of omission or commission in breach of his official duty in connection with elections, he
commits an electoral offence.

(xii) Penalty for Government Servants for Acting as Election Agents,

Polling Agent or Counting Agent

If any person in the service of government acts as an election agent or a polling agent or a
counting agent of 'a candidate at an election he commits an electoral offence for which he may
be punished with imprisonment for a term extending up to 3 months or with fine or with both.41

39 Ibid., section 131.

40 Ibid., section 132.
41 Ibid., section 134-A.

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 (xiii) Financing Elections

By far the most challenging problem about our election system (and even in many other
developed countries) is the problem of finance. The enormous amounts spent by candidates on
elections is one of the principal causes (but not the only cause) of some of the other evil features
of our political, economic and social system- like the influx of criminals into politics,
multiplicity of candidates, defections and even the generation of black money in the economy. In
India there is a limit on the expenditure by candidates (laid down under section 77 of the
Representation of the people Act, 1951) but no limits on expenditure by, or contributions to, a
party or to any other association or body of persons.

Under Section 88 of the Representation of the people Act, 1951, a candidate is required to submit
an account of his election expenses to the District Election officer ithin 30 days of the declaration
of the results. If he fails to do so without valid reasons, under Section IOA of the Act he can be
disqualified for three years. However, if he is found to have incurred expenditure in excess of the
limit laid down under Section77(3), he can be disqualified for a period up to six years. which
means disqualification even for the next general election. So it is safer for a defeated candidate
not to submit his return of expenses which would increase the risk of discovery of excess
expenditure. Many of the defeated candidates prefer not to submit any return of their expenses. It
is, therefore, necessary to remove this anomaly by equalizing the disqualification period for both
offences. Further, the disqualification for non-submission should be automatic and not dependent
on any enquiry except for a formal notice.

(xiv) Removal of Ballot Papers from Polling Stations

Any person who at any election fraudulently takes or attempts to take a ballot paper out of a
polling station commit a cognizable electoral offence. 42 Any person who willfully aids or abets
the doing of any such act is also guilty of the above offence. The Offence of removing the ballot
paper is punishable with one year imprisonment or with fine which may extend to five hundred
rupees or with both. By Act No. 1 of 1989, section 135-A was inserted by which the offence of
booth capturing was made punishable by imprisonment and fine. There are sufficient statutory

42 Ibid., section 135.

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safeguards are made to insure free and fair elections, but these provisions remain dead Acts and
are not strictly implemented.

The conclusion emerges that free and fair elections are the foundation of a democratic form of
Government. The democratic set up of the government may be threatened if elections are not
held in a free and fair manner. To ensure this purity of electoral process, it becomes essential that
the law should extend full protection to the electorates against any fear, injury, misrepresentation,
fraud and other undesirable practices which may be indulged in by or on behalf of candidates at
an election. In order to protect the voters as well as the rival candidates against such intimidation
or malpractices, law has declared certain activities as corrupt practices. To ensure purity of
electoral process as well as the implementation of the law and the rules relating to election, the
Constitution of India has by virtue of the provisions contained in Article 324 entrusted this task
to an independent authority known as the Election Commission. It may not be out of place to
mention here that in the pre-independence era. the Government of India Act, 1919 was the first
legislation and the rules framed thereunder declared corrupt practices as a ground to set aside
election of a returned candidate if he was found guilty, personally or through any person of
committing corrupt practices in the election. The Indian Election Offences and Enquiries Act.
1920 disqualified persons found guilty, of corrupt practices. It also amended the Indian Penal
Code to include electoral offences in the code. When India attained independence in 1947 and we
framed our own Constitution which came into force on January 26, 1950, the democratic set up
of Government was envisioned. To ensure free and fair elections to the Parliament and State
Legislative Assemblies, the Representation of the People Act, 1951 was enacted. The Act, the
earlier pre-independence legislations declared certain activities malpractices as corrupt practices.
These includes, bribery, undue offence, personation, removal of ballot papers, and publication of
false statement of facts, conveyance of voters to polling stations, illegal expenditure and illegal
employment and assistance from government servants. Section 124 of the Act as originally
enacted also declared these practices as minor corrupt practices which were earlier recognized
under the Corrupt Practice Order of 1936. Thus, the Act of 1936 reformulated the pre-
independence laws without any material change. They practically incorporated the basic
principles of English law which were allowed to continue in our country for regulating matter
connected with corrupt practices. The act of 1951 has subsequently been amended six times i.e.
in 1956, 1958 1961, 1966, 1975 and 1989. All these amendments except

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the amendments of 1961 and 1989 curtailed the scope of corrupt practices. For eg. Personation as
corrupt practice was deleted by the amendment of 1956. Similarly obtaining assistance of
Government employees as corrupt practices was confined to particular categories of employees
only. The amendment of 1975 reduced the period of operation of corrupt practices. The
amendment of 1961 inserted promotion of feelings of hatred and enmity between different
classes of citizens on grounds of religion etc. as corrupt practice. Likewise, the amendment of
1989 made booth capturing as corrupt practice. It may he pointed out that the Parliament have
taken into account the recommendations of the Election Commission as well as a Supreme Court
Judgement for changing law till 1966. However, the subsequent years did not show any
significant move to amend or change the law. Though there remained the need to review the
matter not only within Parliament but also outside it. The Joint Parliamentary Committee which
gave its report to Lok Sabha in 1972 had strongly favoured the idea of controlling the role of
rnone, power in election. Simultaneously, it also made specific recommendations to take steps
to eliminate the practices of-personation, coercion and intimidation from election.

Thus, a careful study of election cases reveals that the evidence lead in support of alleged corrupt
practice must be cogent and definite. The onus lies heavily on the petitioner to establish the
charge of corrupt practice and in the case of doubt, the benefit goes to the returned candidate.
The judicial role in determining the ambit and scope of the statutory provisions is credible. But
the formulation of the principle of strict proof in matters of corrupt practices goes against the
avowed purpose of law and seriously defeats the provisions of section 123 of the Representation
of People Act, 1951.

The law relating to corrupt practices needs a second look. The existing corrupt practices have a
limited reach. Ours is one of the biggest democracies of the world. We have limited financial
resources. The electors cannot all the time look for the enforcement of their free exercise of right
to vote to the Election Commission. Therefore, there remains the need for devising an effective
mechanism for protecting and safeguarding the rights of the electorates at the grass-root level.
Empirical study conducted by the researcher has exposed many inadequacies of the law on
corrupt practices.

With due respect to the existing administrative set up envisioned for conducting election in India,
it must be acknowledged that half of India still live under the poverty line. The illiterate, the half-

88
clad, the backward and other neglected segments of our society can still be manipulated by
clever, tricky and dishonest politicians for their own political ambitions. They have virtually no
knowledge of law or the rules for conducting of free and fair elections. It becomes highly
desirable that this vast segment of our population is properly educated and made aware of their
right's obligations as free citizens of this country. Hence, voter's education campaign should be
included in the agenda of the Election Machinery of the state. It is only then that these people
will not only be able to know their rights but would also be able to exercise their right to vote in
a free and unrestrained manner. In the end, it may be submitted that the future of Parliament
democracy in India would depend largely on the vigilance and maturity of the Indian voters. This
is possible only if the laws will be implemented in true letter and spirit.

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