Electoral Offences Under Indian Law – Research Revised
One of the crucial components of a democratic election is the right to vote freely. In every democratic nation on earth, electoral systems are based on the inherent right of the individual. This followed candidate freedom and universal suffrage. Since the 19th century, states have relied on political parties to select candidates in accordance with the principles and procedures of the party administration in order to enforce the system. Once candidates enter the campaign, their primary objective is to win the election and their desire to do so frequently leads them to resort to objectionable tactics. Therefore, this research paper elaborates laws regulating prohibited activities during elections, under relevant statutes, and touches upon the reforms that have been enacted by the legislature, to govern the conduct of candidates during elections and define certain activities as electoral offences.
OBJECTIVE OF RESEARCH
Freedom and equality are crucial aspects of politics that must be guaranteed in the concept of free and equitable elections. Elections deemed free and reasonable mean that no one is affected by the exercise of their liberties and privilege. People should be able to make their own decisions, be freed from the obligations of others, and make close to home decisions without a malicious plan, motive or undue influence from others.
Elections are essential for the proper operation of the state and should be held in a reasonable manner. When a person votes, he or she shouldn’t be influenced or bound by party discipline, religion, sex, language, standing, convictions, and so on Since democracy is the pillar of our nation, it is important to understand and be aware of activities that may violate it, so that the laws may be reformed in accordance with the society to ensure free and fair elections.
Elections are highly significant in a nation like India since every citizen’s vote influences the future of the country. Like any other event, elections are considered important and
acknowledged. Every candidate who campaigns for office invests their blood and sweat in an attempt to prevail in the election, but a handful of them or their party members are dishonest and unscrupulous
It becomes imperative to recognize these offences, punish the criminal, and uphold the integrity of the election. Every democratic nation acknowledges the right of an individual to elect a certain person of their preference over other candidates to carry out their specific responsibilities.
PART XV The Election Commission of India has been granted the authority to regulate, direct, and supervise elections under Article 324 of the Indian Constitution1.
Criminal conduct in this regard includes bribery, undue influence, and other infringements of the right to vote freely. They are considered election-related offences. The Government of India Act of 1919 in India was the country’s first legislation against corrupt practices. Subsequently, the Indian Election Offence and Inquiry Act of 1920 was enacted and it incorporated amendments in the Indian Penal Code as well.
The Representation of the People Act, enacted by our parliament in 1951, was the first regulatory statute to prohibit election fraud and corrupt behaviour.
Understanding Free and Fair Elections
“Free and Fair” in the context of elections indicates that no one is in a condition of servitude of another, and possesses his or her own personal rights, social and political freedom, free thought, and freedom of choice subject to legal discipline. While exercising his right to vote, an individual is not subject to the undue influence of party discipline, religion, caste, creed, sex, language, corrupt practices, etc. Consequently, free and equitable elections are the pillars of a democratic form of government.
The principle of free and equitable elections is an essential component of democracy, which is an indispensable part of the Indian Constitution. This compels us to interpret the Constitution’s provisions in light of established principles of free and fair elections.
Distinction between Corrupt Practices and Electoral Offences
The Supreme Court opined that certain laws were enacted to guarantee that elections were conducted freely and equitably and that only elections with high standards of ethics and morality could be won. Certain actions or omissions that contravene election 1 The Constitution of India, 1950 § Article 324
ethics, undermine the integrity of elections, have a corrupting effect, or have a negative impact on election results are prohibited. Some of these acts are termed “corruption” while others are termed “violations of electoral law.” Section 123 of the Civil Rights Act of 1964 2addresses corruption-related conduct. In the meantime, violations of the electoral law are outlined in both the IPC (Chapter 9A) and Polish law (Chapter 3, VII). Election-related offences under the IPC are of a criminal nature and apply to all elections administered in accordance with the laws of all electoral bodies of the country concerned with corruption and election offences under the laws of the Republic of Poland. This law pertains to elections for parliament and state legislatures but not to elections for president and vice president of India.
The primary distinction between the two prohibited acts is that if a candidate commits fraud with the approval of another candidate or person, the election results are distorted and the candidate is elected. In the event that they are declared null and void, violations of the Election Act will not have a catastrophic effect on the election’s outcome.
In the first scenario, the total number of voters suffers as candidates lose their legislative seats and remain without delegates until a new election is conducted to replace the unemployed. In the latter scenario, only those who commit election-related offenses are criminally liable.
Moreover, corruption complaints may only be submitted after an election and only in an election petition filed in accordance with Section 329(b)3 and Title IV of the Judicial Procedure Code; However, violations of the Election Act may be prosecuted for other criminal acts subject to investigation and trial in accordance with the Criminal Procedure Act immediately following the commission of the crime and at the beginning of the trial. Code, 1973
Corruption is associated with a number of civic issues. With the exception of civil disability relating to voting and participation in elections, any violation of election law is considered a crime and may result in imprisonment, imposition of fines, or both.
Analysing Electoral Offences under the IPC
2 The Civil Rights Act, 1964 § 123
3 The Code of Civil Procedure, 1908 § 329(b)
Chapter IXA, Sections 171A to 171I of the Indian Penal Code ,18604 govern election-related offenses. This Chapter was added to the Indian Penal Code of 1860 in 1920. It was enacted to provide for the punishment of election irregularities and the conduct of investigations into disputed elections. The electoral offences are also specified in section VII of the Representation of the People Act, 19515
Section 123(1)6 of the Representation of the People Act, 1951 and Sections 171B and 171E of the Indian Penal Code 7designate bribery as corrupt practice . Bribery is considered as an inducement that impacts electoral activity. The crime of bribery is considered to be conducted by both the person who provides and the person who accepts gratification. Rewarding a person for inducing him or another person to exercise electoral rights, or rewarding a person for exercising electoral rights, is a corrupt practice punishable by one year in prison, a fine, or both.
In the case of S. B. Adityan vs. S. Kandaswami and Others 8the court ruled that the term “gratification” in section 123 is extremely broad and encompasses a candidate’s renunciation of registration to induce another candidate to participate in an election. Such gratification constitutes a corrupt practice under section 123.In addition, section 123(1) does not include accepting a gift as a corrupt practice.
In Rajendra Prasad Jain v. Sheel Bhag Yajee9, the Supreme Court stated that, when analyzing the meaning of “offer of bribery” in the Election Law, a restricted interpretation is inappropriate. In order to ensure that elections are conducted in an environment of absolute purity, the expression “offer of bribery” should be given a broad interpretation.
In Ghasi Ram v. Dal Singh & Others10, it was noted that the commitment was not made to a specific voter or voters, but rather to the entire population, without distinguishing4 The Indian Penal Code, 1860 § 171A-171I
- 5 The Representation of People Act, 1951 § VII
- 6 The Representation of People Act, 1951 § 123(1)
- 7 The Indian Penal Code, 1860 § 171A and 171E
- 8 AIR 1958 SC 857, (1958) IIMLJ 187 SC, 1959 1 SCR 368.
- 9 1967 AIR 1445, 1967 SCR (3) 19.
- 10 1968 AIR 1191, 1968 SCR (3) 102.
between those who were beneficial and those who were unfavourable. The essence of the corrupt practice, therefore, consisted of attempting to do something for those who opposed the candidate in exchange for their votes.
UNDUE INFLUENCE IN ELECTIONS :
Section 123(2) of the RP Act11 and sections 171C and 171F of the Indian Penal Code 12 mention undue influence at elections. Any person who disrupts with or attempts to interfere with the free exercise of any electoral right commits the crime of undue influence and shall be punished with one year in prison, a fine, or both, according to the provisions of the Indian Penal Code.
In Jujhar Singh v. Bhairon Lall & Others13, the Election Tribunal ruled that “an attempt to interfere by the method of compulsion is not required and that even the method of inducement may suffice, provided that it is of such a powerful nature as to leave the voter with no free will in the exercise of his choice. In other words, actual physical coercion is not required, but positive mental coercion may be sufficient to constitute undue influence.
In the case N.Sankara Reddi vs. Yashoda Reddi14, the Election Tribunal ruled that “a political party is entitled to distribute a manifesto to voters requesting that they vote only for the party’s candidate. It was held that writing letters to party members urging them to support the party’s candidates does not constitute undue influence It was added that the offence would only arise if a Minister abused his position to advance the chances of a candidate from his own party.
It is not required that there be an actual threat or physical coercion, but the method of threat or inducement must convey to the victim that the threat or inducement may result in harm to him or a person in whom he may be interested. Consequently, some dread of harm as a result of noncompliance with what is desired by such threats or inducements is a necessary component of undue influence.
11 The Representation of People Act, 1951 § 123(2) 12 The Indian Penal Code, 1860 § 171C and 171F 13 AIR 1987 P H 34.
14 AIR 2000 SC 256.
PERSONATION AT ELECTIONS :
The Indian Penal Code of 1860, under Section 171D 15states that whoever at an election applies for a voting paper on votes in the name of any other person, living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence of personation at an election and shall be punished with imprisonment for one year or a fine or both.
PUNISHMENT FOR BRIBERY:
Section 171E of the Indian Penal Code16 states that Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both
PUNISHMENT FOR UNDUE INFLUENCE:
As per Article 171F 17 Punishment for unlawful election influence or personation Whoever commits the offence of undue influence or impersonation at an election shall be punished with imprisonment for a term that may not exceed one year, a fine, or both.
PUBLICATION OF FALSE STATEMENT:
Section 171G of the Indian Penal Code18 stipulates Whoever, with the intent to influence the outcome of an election, makes or publishes a false statement purporting to describe the personal character or conduct of a candidate commits a felony and is subject to a fine.
In Inder Lal vs. Lal Singh19, the court ruled that the circulation of false statements about the private or personal character of a candidate during the period preceding elections is likely to work against the freedom of election itself because the effect created by false statements cannot be countered by denials in a timely manner. Therefore, the Constituency must be protected from the circulation of such false statements that are likely to influence the voting of the electors. For this reason, the statute includes the dissemination of false statements about the private character of a candidate among
15 The Indian Penal Code, 1860 § 171D 16 The Indian Penal Code, 1860 § 171E 17 The Indian Penal Code, 1860 § 171F 18 The Indian Penal Code, 1860 § 171G
19 1962 AIR 1156, 1962 SCR Supl. (3) 114.
corrupt practices in order to safeguard the electorate from acts that would be fatal to the freedom of election. Thus, the dissemination of fraudulent statements about a candidate’s personal character constitutes a corrupt practice.
UNLAWFUL PAYMENTS MADE IN ELECTIONS :
Section 171H of the Indian Penal Code20 makes it unlawful for anyone, unless authorized by a candidate, to incur election-related expenses.
This section makes unlawful campaign contributions that are not authorized by a candidate a punishable offence. Whoever, without the general or special authority in writing of a candidate, incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular, or publication, or in any other manner whatsoever, with the purpose of promoting or procuring the election of such candidate, shall be punished with a fine of up to five hundred rupees.
FAILURE TO MAINTAIN ELECTION ACCOUNTS:
The Indian Penal Code of 1860, section 171I21, criminalizes failure to maintain election accounts.
This section penalizes the failure to maintain records of expenses incurred in connection with an election, if such records are mandated by a law or rule with the force of law.
In accordance with Section 171I of the Indian Penal Code22, a fine of up to five hundred rupees may be imposed on anyone who fails to maintain accounts of expenses incurred at or in connection with an election, despite being required to do so by law or rule with the force of law.
20 The Indian Penal Code, 1860 § 171H
21 The Indian Penal Code, 1860 § 171I
22 The Indian Penal Code, 1860 § 171G
In Mast Ram v. State of Punjab and Others23, the court determined that Section 171I of the Indian Penal Code pertains to non-maintenance of an account by an election candidate, but not to irregular account maintenance.
Other election-related offences under the Representation of the People Act of 1951
● Regarding Election Expenses:
The section 123(6) of the Representation of the People Act of 195124 defines corruption as incurring or authorizing expenditures in violation of section 77.
Section 77(1)25 requires every candidate in an election for the House of Representatives or a state legislative assembly to maintain a separate and accurate account of all expenditures incurred or authorized by him or his election agent between the date he was nominated and the date of the election.
● Free Conveyance or transportation of Voters:
According to section 123(5)26 of the Representation of the People Act of 1951, anybody who illegally hires or procures a vehicle for the free transportation of any elector, other than the candidate, a member of his family, or his agent, to or from a polling station commits an offence punishable by three months in prison and a fine of three hundred and thirty-five pounds.
23 1992 Supp (2) SCC 744.
24 The Representation of People Act, 1951 § 123(6)
25 The Representation of People Act, 1951 § 77(1)
26 The Representation of People Act, 1951 § 123(5)
In Razik Ram vs. Ch. Jaswant Singh Chouhan and Others27, the court determined that Clause (5) of Section 123 is composed of two sections. The conditions of the first section are as follows:
- The hiring or procuring, whether on payment or otherwise, of any vehicle orvessel for the free transportation of voters.
- Such hiring or procuring must be by a candidate or his election agent, or by anyother person with the consent of a candidate or election agent. The second section provides for “the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate, his family, or his election agent) to or from any polling ” The conjunction “or” connects the two parts, which is susceptible of two constructions. In one sense, it is a particle that coordinates the two clause parts and creates a new native between them. In the other sense – which is similar to the sense of “and” – it can be interpreted as uniting and combining the first and second clause parts. The latter construction appears more consistent with the intent and purpose of the 1966 amendment.
● Promoting Enmity Between Classes:
Any person who, in connection with an election under this Act, promotes or attempts to promote, on the basis of religion, race, caste, community, or language, feelings of enmity or hatred between different classes of the citizens of India shall be penalized with imprisonment for a term that may not exceed three years, or with a fine that may not exceed ten thousand rupees, or with both. Section 12528 of the Representation of the People Act of 1951 stipulates this. The penalty is specified in Section 505(2)29 of the Indian Penal Code.
In Subash Desai v. Sharad J. Rao30, the Supreme Court ruled that when the framers of the Constitution guaranteed every citizen the right to freely profess, practice, and propagate his religion, that right did not include the right to encourage enmity between two groups of individuals practising different religions.27 AIR 1975 SC 667, (1975) 4 SCC 769
28 The Representation of People Act, 1951 § 125
29 The Indian Penal Code, 1860 § 505(2)
30 1954 AIR 202, 1954 SCR 913
In Pravasi Bhalai Sangathan vs. U.O.I. & Ors31 , the court ruled, “Hate speech is an effort to marginalize individuals based on their membership in a group, and it attempts to delegitimize group members in the eyes of the majority, diminishing their social standing and acceptance within society. Hatred surpasses the distress it causes to individual group members. It can have an effect on society. Hate speech creates the foundation for discrimination, ostracism, segregation, deportation, violence, and, in the most extreme cases, genocide against the vulnerable.
● Obtaining the Services of a Government Servant:
Since government servants play a pivotal role in public administration and the enactment of policies made by the ruling political party, a government servant should not participate in election campaigns or canvassing, and he should take great care not to lend his name, official position, or authority to one political party or candidate over another. Rule 5(1) of the Central Civil Services (Conduct) Rules of 1964 prohibits government employees from participating in politics or elections. Under the Representation of the People Act of 1951, electoral offenses include breach of official duty in relation to elections, functioning as an election agent, and influencing voters. In addition, Section 123(7)32 of the same Act defines procuring or obtaining the assistance of government employees in elections as a corrupt practice..
In Raj Krushna Bose vs. Binod Kanungo And Others33 , the court stated, “The policy of the law is to keep government servants aloof from politics and also to protect them from being imposed on by those with influence or in positions of authority and power, and to prevent the government machinery from being used to promote a candidate’s return.” Nonetheless, it is not the intent of the law to deprive them of their rights as ordinary citizens of the territory or to strip them of their voting rights.
● Propagation of Sati
31 1975 AIR 1778, 1975 SCR 453
32 The Representation of People Act, 1951 § 123(7)
33 AIR 1997 AP 357, 1997 (2) ALD Cri 174
Section 123(3B)34 prohibits the propagation of the practice or 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 to advance the chances of that candidate’s election or to adversely affect the election of any other candidate.In relation to sati, the terms “sati” and “glorification” shall have the respective meanings given to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988). Sati is an age-old tradition and practice among Hindus in certain regions of India, particularly among the Rajputs in the state of Rajasthan. Sati refers to the wife’s self-immolation upon the death of her husband, typically by burning herself alive on the husband’s funerary pyre.
● Denying Someone the Voting Right:
According to section 3 (1) (vii)35 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, it is a crime to compel or coerce a member of the SC/ST community to vote, to vote for a particular candidate, or to vote in a manner not permitted by law. In accordance with section 135B36 of the Representation of People Act, 1951 an employer is subject to a sanction of up to Rs. 500 for failing to provide paid holidays to eligible employees. 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 abstain from voting for any person on the basis 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 election prospects of that candidate or for prejudicially affecting the election of that candidate. Section 123(3)37 of the Representation of the People Act of 1951 provides for the same.
In Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra & Ors,38 the Supreme Court stated that Our Constitution-makers undoubtedly intended to establish a Secular Democratic Republic, the spirit of which is encapsulated in the Constitution’s preamble. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all necessitate some regulation of all activities, could
34 The Representation of People Act, 1951 § 123(3B)
35 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 § 3(1)vii
36 The Representation of People Act, 1951 § 123(3B)
37 The Representation of People Act, 1951 § 123(3)
38 1975 AIR 1778, 1975 SCR 453
endure in the absence of a consensus on the fundamentals that could unite and bind citizens regardless of their religion, race, caste, community, culture, creed, or language. Our political history has made it imperative that these differences, which can generate strong emotions that deprive people of their capacity for rational thought and action, not be exploited, lest the necessary conditions for the maintenance of democratic freedoms be disturbed.
● Removal of Ballot Paper:
If anyone removes EVM/Ballot Paper, or if the presiding officer has reason to believe that this has occurred, he may apprehend that individual or order a search. Under section 13539 of the Representation of People Act, the offender will be sentenced to one year in detention, a fine, or both.
● Destruction of Ballot Paper:
Any person who fraudulently defaces or destroys any ballot paper or EVM or the official mark on any ballot paper or EVM or puts anything other than the ballot paper into any ballot box or pastes any paper, tapes, etc. on the symbol/names/ballot button of EVM for the purpose of an election commits an offense.In accordance with section 13640 of the Representation of People Act, any officer or clerk on election duty who commits an offence is punishable by two years in prison, a fine, or both, and six months in prison or a fine for all others.
● Possession of Armed Weapons:
Section 134B41 of the Representation of People Act prohibits anyone other than the presiding officer, police officer, and any person appointed to maintain peace and order from being armed at or near a polling station. Whoever violates this provision is subject to imprisonment for up to two years, a fine, or both.39 The Representation of People Act, 1951 § 135
40 The Representation of People Act, 1951 § 136
41 The Representation of People Act, 1951 § 134B
As per Section 332/333/353 42of the Indian Penal Code, anyone who intentionally inflicts minor or serious bodily harm or commits an assault with the intent to prevent a public servant from performing his duties is subject to a two- to ten-year prison term and a fine.
● Concerning pamphlets and posters:
Whoever prints or publishes election pamphlets, posters, handbills, or placards that do not bear the name and address of the printer and publisher commits an offense under Section 127A43 of the Representation of the People Act, 1951 and shall be liable to imprisonment for six months or a fine of up to Rs.2,000 or both.
In Rahim Khan v. Khurshid Ahmed & Ors44 , the Supreme Court stated that “no agency of the law takes prompt action after a thorough investigation of a complaint of violation of Section 127A. The court pressed for the creation of a law-enforced semi-independent body that would promptly investigate how the illegal flyers and posters were made , who printed them, and who was responsible for having them printed. Thus, Section 127A is investigated by the police in the same manner as other criminal offences.
● Campaigning near a polling place:
Section 13045 of the Representation of People Act Prohibits on election date Campaigning in or near a polling place; or Soliciting the vote of any elector; or Attempting to dissuade any elector from voting for a particular candidate or at an election; or Displaying any election-related notice or sign that is not official notice. Whoever violates this provision is subject to a fine of up to Rs. 250. The nature of this offense is cognizable.42 The Indian Penal Code, 1860 § 332,333,353
43 The Representation of People Act, 1951 § 135
44 1975 AIR 290, 1975 SCR (1) 643.
45 The Representation of People Act, 1951 § 150
● Disorderly conduct at or near a polling station:
According to Section 13146 of the Act, anyone who shouts in a disorderly manner or uses loudspeakers, megaphones, etc. in order to disrupt the voting process may be arrested and their equipment seized. On the direction of the presiding officer, a police officer may place the suspect under arrest. The offense is punishable by imprisonment for three months, a fine, or both.
● Misconduct at the polling station:
Under Section 13247 of the Representation of People Act, a presiding officer, police officer, or other authorized personnel may evict any voter who engages in improper conduct or refuses to heed lawful instructions during the polling hour. Moreover, if the individual re-enters the polling station without soliciting permission from the presiding officer, he will be punished with up to three months in prison, a fine, or both if the offense is cognizable.
● Maintenance of Secrecy of Voting:
Under Section 12848 of the Representation of People Act, if any officer, clerk, agent, or other person who performs any task with regard to keeping an account of votes at an election does not maintain secrecy of the voting, they are guilty of an offence punishable by 3 months in prison, a fine, or both.
46 The Representation of People Act, 1951 § 131
47 The Representation of People Act, 1951 § 132
48 The Representation of People Act, 1951 § 128
In Raghbir Singh Gill vs. Gurcharan Singh Tohra & Ors49, the court ruled that ballot secrecy serves a vital purpose of public interest in that an elector or voter must be free to exercise his or her franchise without any restrictions, including restrictions on disclosure. A remote or distinct possibility that a voter may at some point be compelled by law to reveal for whom he voted would act as a hurdle and on his freedom to cast his vote as he chooses. Therefore, it is safe to assert that this constitutional democracy premise relies on public policy.
SAFEGUARDS AGAINST FRAMING OF CHARGES IN ELECTORAL OFFENCES
On February 24, 2014, the Law Commission of India 50(chaired by Justice A.P. Shah) presented its report on Electoral Disqualifications to the Ministry of Law and Justice. The report follows the December instruction issued by the Supreme Court. In most cases, a candidate’s candidacy is withdrawn at the stage in which charges are framed, which is founded at a sufficient degree of judicial scrutiny.
To prevent abuse at this stage, adequate safeguards are enacted to control the spread of criminalization of politics in addition to offering a remedy for those who have been wrongfully accused.
- Only offenses carrying a maximum sentence of five years or more should fall underthe scope of this provision.
- Charges filed within one year prior to the date of nomination scrutiny will not resultin disqualification or withdrawal of candidacy.
- The disqualification shall remain in effect until acquittal by a trial court or six years,whichever occurs first.
- Ifcharges are brought against sitting legislators, the prosecution must be It must be carried out on a daily basis and concluded within one year
- If the trial isn’t concluded within one year, the member of Congress or member of thelegislature may be disqualified. Alternately, the MP/MLA’s ability to vote in the House asa member, as well as his compensation and other advantages should be suspended at the end of one year.
49 1980 AIR 1362, 1980 SCR (3)1302.
50 Law Commission Report(2014)
- Disqualification at the stage of charge formulation must also apply retrospectively.Individuals with pending offenses (punishable by five years or more) at the time this law takes effect must be disqualified from future The safeguards for charges lodged within one year of the date of nomination document review would be applicable.
REFORMS FOR CURBING CRIMINAL CONDUCT IN POLITICS
The election process is the most significant aspect of a democracy. Elections that are free and fair are essential for a thriving democracy. People must maintain their loyalty to democratic bodies based on the rule of law for the sake of effective democracy. The greater the number of free and fair elections, the greater the people’s allegiance to democratic institutions. In contrast, if elections are not held in a free and equitable manner, people will lose faith in democracy. Parliament has enacted legislation to assure free and fair elections, and a comprehensive election system has been established. The experiences of the past General Elections have demonstrated to the people the system’s advantages and disadvantages. The election system has undergone frequent minor adjustments. Nonetheless, our electoral process is plagued by numerous ills, including the use of black money, casteism, communalism, rigging, abuse of the political apparatus, criminal conduct in politics, and in some areas, the capture of voting booths.
All of these violations undermine the public’s faith in free and equitable elections.In order to restore people’s faith in democracy, electoral reforms are urgently required. In the past, numerous electoral reforms have been implemented in our electoral system. The following is a list of some of the changes:
- Through an amendment to the constitution in 1989, the minimum voting age was reducedfrom 21 to 18.
- TheRepresentation of the People Act, 1951, was amended to easily facilitate the use of Electronic Voting Machines (EVMs).
- A person convicted of offences under the Prevention of Insults to National Honour Act 1971 isineligible to run for Parliament or state legislature for a period of six
- In accordance with a provision from 2003, the Election Commission must allocate an equitableamount of time on the cable television network and other electronic media during elections for the purpose of displaying or propagating any matter or addressing the
- On their nomination documents, candidates must now disclose their criminal histories, assets,educational qualifications, etc.
The Election Commission has periodically implemented the aforementioned and numerous other electoral reforms.
Election Commission of India has consistently implemented reforms to elections that it could initiate on its own or in response to Supreme Court directives. In 1997, the Election Commission instructed all Returning Officers (ROs) to deny the paperwork for nomination of any candidate convicted on the day of nomination filing, even if his sentence has been suspended. The Election Commission has also proposed the following electoral reforms for the reduction of offences and crimes in politics to the Union Government for enactment into law:
- If a person is accused of a serious offense (that is, where the law prescribes a punishment ofat least 5 years for the alleged crime) and a court of law has framed criminal charges against the accused, it shall be considered a reasonable ground for disqualifying the accused from running for office. The Election Commission is of the opinion that the filing of criminal charges by a court indicates that the court has a reasonable suspicion that the accused committed the alleged crime.
- If a person is found culpable by an inquiry commission, he is disqualified from running for
- The FPTP electoral system shall be replaced with the 2-ballot system in which a candidate isdeclared elected from a territorial constituency based on the majority In a multi-cornered contest, if no candidate receives more than 50% of valid votes cast, the two candidates who received the most valid votes cast alone are permitted to compete in the next round. This system would make it challenging for a criminal to gain election.
- In addition to the 2-ballot system, the negative vote should be implemented. This action wasalready taken as a result of the aforementioned Supreme Court ruling.
Other measures that could be considered for the reducing crime in politics are as follows:
● Right to recall –
It gives voters who are registered in a constituency the authority to recall its representatives from the house for nonperformance. It could provide grassroots empowerment. The elected official could be held answerable to the people in a meaningful way. In such a scenario, political parties will be compelled to nominate qualified and desirable candidates for election contests out of apprehension of losing their elected representatives. However, a high level of political maturity is necessary for such a system to function.
● State funding of elections –
This involves the government supplying financial assistance, in cash or in kind, to political organizations in order to contest elections. By financing political parties and candidates during elections, the goal could be to limit or eliminate the influence of special interests on the policies and operations of the government. It could aid in regulating the flow of untraceable funds and the physical power of offenders during elections and in preventing public corruption.
VIEWS ON ELECTORAL OFFENCES IN INDIA
Political freedom and equality are integral to the notion of free and fair elections. When elections are conducted unconstitutionally, the general population loses trust in the democratic and the electoral process. Thus, the foundation of democratic systems of administration are free and impartial elections.
The punishments mentioned in the code are outdated and broadly not severe enough to deter unlawful conduct or offences. Each election candidate enters the race with the goal of prevailing and seeing oneself as the candidate in power. Dishonest means may be utilized to do this, which may interfere with a fair electoral process. Election-related offenses must be addressed seriously, and appropriate penalties must be imposed. The provisions put forth by the Fifth Law Commission in this regard should be taken into consideration.
Free and equitable elections are the foundation of a democratic form of government. Numerous laws, such as the Representation of the People Act of 1951, the Election Commission Act of 1991, and others, have been enacted in the past to guarantee free and fair elections. The majority of these laws limit the scope of corrupt practices. It is the principal statute that regulates election-related corruption and crimes. The guardian of democracy is not legislative wisdom, but rather the wisdom of the nation’s highest court.
The judiciary must therefore be a conspicuous pillar of support for the regulation of laws to prevent electoral violations and offences.
Free and fair elections should not be the sole responsibility of the election commission; the government and the electorate should also be held accountable. Citizens of the country should
be informed not only of their right to vote, but also of their right to vote freely and fairly, as well as the negative consequences of engaging in corrupt election practices.
The primary reason for the rise in election-related offences is that the penalties for electoral offences and corrupt practices are minimal. People would consider twice before executing such an offence if the penalty is increased.
Considering important revisions, the Fifth Law Commission put forward specific reforms to the IPC’s current Chapter IXA. However, none of these provisions have been enacted or implemented till date. Among the reforms is a change in the meaning of “the right to vote.” The present definitions do not include the capacity of a candidate to withdraw from an election.
A few suggestions are that could be incorporated are enlisted below :
- Bribery should be penalised severely and relatively harshly, as it considerablyimpedes an efficient and fair electoral
- Sections171B and 171E,51 encompassing bribery and prescribed penalties, should be consolidated into one section for better
- Section171D and 171F52 being the subclauses of personalization should be combined within the code for better understanding
- Thedefinition of undue influence must be restricted to include violent measures that hinder justice and exercise of legal
- Since false statements effect public opinion to a great extent and wrongfullydamage the reputation of candidates, the requisite punishment described in the code must be strengthened to suit the time needed to restore the honour of such
51 The Indian Penal Code, 1860 § 171B and 171E
52 The Indian Penal Code, 1860 § 171D and 171F
- Asentence of upto three years in prison must be proposed instead of a mere
- Criminalisationin politics should be curbed and candidates with a criminal record must not be permitted to contest elections. There must be a strict law in place that prevents a candidate bearing a history of offences of moral turpitude, to stand in election
- There must be laws in place to prevent communalisation of politics. Religion andcaste should not be used for political gain and consideration
- Useof black money in elections must be checked
- Paid news channels should be restricted in order to preserve democracy, sincethey grant undue favour and visibility to a single political party, offering a hindrance to the process of free and fair
M.A Aathichoodi, Electoral offences in India, Vol.10, IJRSR, Pages 36403- 36409 (2019) Law Commission of India, Election Laws (Amendment) Bill, 162 of 2021(2021)
Srinibas Nayak, Corrupt Practices and Electoral Offences, Vol 17(6), Palarch’s Journal Of Archaeology Of Egypt/Egyptology, Pages 5086- 5092 (2020)
M.R Madhavan, Financing of Election Campaigns, PRS Legislative Research, Pages 1-4(2008) Prianka Rao, Law Commission Report Summary, PRS Legislative Research, Pages 1-2(2014)
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