DISTURBANCES AT ELECTION MEETINGS

By

Name of the Student:- K.Meghana

Roll No:- 2018LLB039

Semester:- IX

5 Year Integrated B.A.,LL.B. (Hons.) Course

NAME OF THE SUBJECT

Election Laws

UNDER THE SUPERVISION OF

D.R. Bharat Kumar

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM, VISAKHAPATNAM-531035
ANDHRA PRADESH, INDIA

Date of Submission- 5-11-2022

 CERTIFICATE

This is to certify that the dissertation entitled Disturbances at Election Meetings for the
Seminar Paper Election Laws to Damodaram Sanjivayya National Law University,
Visakhapatnam is a record of original work done by K.Meghana under my supervision
and guidance to my satisfaction.

SIGNATURE OF THE GUIDE

Visakapatnam

Date:

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 ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to the respected

Election Law teacher, D.R. Bharat Kumar sir, for giving me an excellent opportunity
to take up this project titled Disturbances at Election Meetings. I have tried my best
to collect information about the project in various ways to depict clear picture about
the given project topic.

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TABLE OF CONTENTS :-

1. List of Abbreviations ………………………………………………………05

2. List of Cases ……………………………………………………………….06
3. Synopsis …………………………………………………………………....07
4. Introduction ………………………………………………………………...09
5. Representation of the People Act, 1951 ……………………………………11
6. Disturbances at Election Meetings …………………………………………13
7. Disturbances at Election Meetings at Specific Period ……………………...13
8. Electoral Offence under the RP act ……………………………………....…14
9. Separation of Corrupt Practices and Electoral Offences ……………………15
10. Undue Influence ………………………………………………………...…..16
11. Electoral Offences and Penal Provisions ………………………………...….19
12. Case Laws ………………………………………………………………...…20
13. Conclusion …………………………………………………………………..49
14. Suggestions ……………………………………………………………….....50
15. Bibliography …………………………………………………………………51

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LIST OF ABBREVIATIONS :-

AIR All India Report

IPC Indian Penal Code
CPC Civil Procedure Code
RPA Representation of the People Act
ECI Election Commission of India
COMP Company
CJ Chief Justice
ADDL. CEO Additional Chief Electoral Officer
BLO Booth Level Officer
DEO District Election Officer

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LIST OF CASES

S.No. Name of the case Citation

1. Surinder Singh v Hardial Singh  AIR 1985 SC 89 
2. Abhiram singh V. C.D. Commachen AIR (1976) 2 SCC
3. Singh Sidhanti v. Pratap Singh Daulta 1965 AIR 183, 1964 SCR
(6) 750
4. Kultar Singh v. Mukhtiar Singh 1965 AIR 141, 1964 SCR
(7) 790
5. Kanti Prasad Jayshanker Yagnik 1969 AIR 851, 1969 SCR
(3) 400

6. Dr. Ramesh Yeshwant Prabhoo v. Prabhakar 1996 AIR 1113, 1996 SCC
Kashinath Kunte & Others (1) 130
7. Bhadar Ram Through V. Jassa Ram 2022 Latest Caselaw 13 SC
8. Marri Chandra Shekar Rao vs. Dean, Geth G.S. (1990) 3 SCC 130
Medical College and Others
9. Bir Singh vs. Delhi Jal Board (2018) 10 SCC 312.
10. N.P. Ponnuswami V. The Returning Officer, AIR 1952 SC 64, (1952)
Namakkal Constituency, Salem District and ors
IMLJ 775 SC, 1952 1 SCR
218
11. The Election Commission, India V. Saka 1953 AIR 210, 1953 SCR
Venkata Rao, The Union of India 1144
12. Brundaban Nayak V. Election Commissioner of 1965 AIR 1892, 1965 SCR
India and ANR (3) 53
13. Mahmadul Haque Laskar V. State of Assam and AIR 2003 Gau 71
ors
14. Narayan Singh v Sunderlal Patwa AIR 1993 MP 214

SYNOPSIS

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TITLE OF THE PAPER

Disturbances At Election Meetings

SIGNIFICANCE & OBJECTIVE

The research has been focused on Election Meetings and the offences which creates
disturbance at election meetings which undermines access to controlled medicines.

RESEARCH QUESTION

Whether Corrupt Practices amounts to Electoral Offence?

Whether Electoral Offences amounts to the necessity of a Re-Election?

LITERATURE REVIEW

• Dr. Bimal Prasad Singh, ‘Electoral reforms in India-Issues and Challenges’, (2013) 2 (3)
IJHSSI

“This article discusses the present situation of the Indian election system. It investigates the
growth of Indian law on the issue of the right of the people to vote and choose the Head of
State. It provides the researcher with the analysis that, despite the Election Commission's
recommendations and suggestions for electoral reforms, we urgently need fundamental
political reform, including a referendum on electoral reform, much greater cooperation across
party lines, and changes to our political system to make it far more transparent and
accountable.”

• M.Vijaya Kumar, ‘Need of Electoral Reforms in India: Background Paper, All India
Progressive Forum (AIPF)’, 2009.

“This paper addresses the flaws with India's election system and the urgent need for electoral
changes. The involvement of money power, muscle power, booth capture, and so on is a stain
on the democratic process and makes it impossible to hold a free and fair election. The paper
suggests that existing legislation alone cannot address the dangers of electoral corruption and
electoral offences, and that legal measures must be supplemented by a country-wide drive to
educate the electorate about their duties, as well as the adoption of certain additional legal
measures, to address the dangers of electoral corruption and electoral offences in elections.”

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• Dr. M. Bhaskara Raju, ‘Indian Electoral System - Major Issues and Remedies’ (2015) 4(11)
IJR

“This essay attempted to identify important difficulties with the Indian voting system and
also suggested possible solutions to these issues. The article also suggests some remedial
measures for improving the system and states that there is an urgent need to adopt certain
legal measures to address the problems faced by the Indian electoral system, as the Indian
electoral system is hampered by numerous hitches and humiliating factors that encourage
anti-social elements to intervene in the electoral dispute.”

RESEARCH METHODOLOGY

1. Descriptive and Analytical method of research

2. Main source of study will be Online sources, journals and research papers.

SCOPE OF THE RESEARCH

Due to constraints of time, the researcher would like to restrict the scope of the paper to the
context of Disturbances at election meetings, Offences and case laws.

INTRODUCTION :-

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Articles 81 and 170 of the Indian Constitution specify the maximum number of seats in
Parliament and state legislatures, as well as the principles to be followed in allocating seats in
the Houses of People among the states and in state legislatures, but leave the actual allocation
of such seats to the law.1

Similarly, Article 1 of the Indian Constitution states the maximum and minimum number of
members in a State's Legislative Council, as well as the several procedures by which seats
must be filled, but the exact number of seats to be filled by each manner is left to legislation.
As a result, the Representation of the People Act 1950 was adopted to allow for the
distribution of seats in the House of People, as well as in State Legislative Assemblies and
Legislative Councils.2

To summarise, the Act establishes the following election-related requirements. Seats in the
House of the People, State Legislative Assemblies, and State Legislative Councils are
allotted. Constituency delimitation for the Houses of Parliament, the Assembly, and the
Council Chief electoral officers, district election officers, electoral registration officers, and
other election officials Electoral rolls for seats in the Parliament, Assembly, and Council
Method of filling seats in the Council of States by delegates from union territory. Local
governments for the purpose of elections to State Legislative Councils Civil courts are barred
from exercising their authority.3

Elections are seen as a method for achieving democracy and are an essential component in
the formation and maintenance of any democracy. India has a Constitution that promises its
inhabitants a democratic republic. The Indian Constitution establishes a system of democratic
bodies/positions, as well as an independent constitutional institution tasked with conducting
free and fair elections, namely the Election Commission. A free and fair election is an
essential component of Indian democracy. Corrupt practises and electoral offences include
bribery, undue influence, and other actions that interfere with the free exercise of one's right
to vote. It is essential that we learn and comprehend electoral offences, fines, and
disqualification. This article therefore deals with several clauses of the Representation of the
People Act, 1951, and the Indian Penal Code that deal with election offences. Additionally,
the disparities between electoral offences and corrupt activities are investigated.

1
https://www.indianconstitution.in/2021/12/section-127-representation-of-people.html acessed on 20-11-2022
at 10:00 a.m.
2
Representation of the People Act 1951 section 127(2).
3
Representation of the People Act 1951 section 127(1).

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The cornerstone of democratic election is referred to as "freedom of choice."
Election/selection of a specific person of their choice among other candidates for the
discharge of specified obligations is regarded a natural right of an individual in all democratic
nations. Corrupt practises and electoral offences include bribery, undue influence, and other
actions that interfere with the free exercise of one's right to vote.4

The electoral offences under the IPC are listed in Chapter IXA under the title "Of Offenses
Relating to Elections." The Indian Elections Offences and Inquiries Act 1920 put this chapter
into the Code more than 90 years ago in 1920, when the notion of elections was established in
certain legislative bodies under the Government of India Act 1919. Bribery at elections
(section 171B), undue influence at elections (section 171C), personation at elections (section
171D), false statement in connection with an election (section 171G), illegal payments in
connection with an election (section 171H), and failure to keep election accounts are all
electoral offences under the IPC (s. 171I).5

The following are the electoral offences under the Representation of the People Act of
1951:

1) Promoting class conflict in conjunction with elections (s. 125)

2) Falsifying affidavits (s. 125A)
3) Holding of public sessions throughout a 48-hour period culminating in an hour set for
poll completion (s. 126)
4) Restriction on the release and distribution of exit poll results (s. 126A)
5) Company Infractions (s. 126B)
6) Disruptions during election meetings (s. 127)
7) Printing of pamphlets and posters without revealing the publisher's name (s. 127A)
8) Voting secretariat violation (s. 128)
9) Officers or others attempting to sway voters (s. 129)
10) Canvassing at or near polling places (s. 130)
11) Unruly behaviour at or around polling places (s.131)
12) Misbehaviour at voting places (s. 132)
13) Failure to follow voting process (s. 132A)
14) Illegal employment or procurement of transportation during elections (s. 133)

4
https://www.advocatekhoj.com/library/bareacts/representationofthepeople accessed on 20-11-2022 at 10:30
a.m.
5
https://blog.ipleaders.in/critical-analysis-electoral-offences-india/ accessed on 20-11-2022 at 10:30 a.m.

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 15) Election-related violations of official duties (s. 134)
16) Misuse of Government Employees (s. 134A)
17) Going armed at or near polling places (s. 134B)
18) Removal of vote papers and other election materials from polling places (s. 135)
19) Booth photography (s. 135A)
20) Employees are not granted a paid holiday on the day of the election (s. 135B)
21) Liquor sales, distribution, and so forth on election day (s. 135C)
22) Tampering with nomination papers, ballot boxes, ballot papers, election records,
unlawful supply of ballot papers, and so on (s.136)

Any conviction under sections 125, 135, 135A, or 136(2)(a) results in disqualification from
membership in Parliament and state legislatures for a minimum of 6 years from the date of
conviction. Furthermore, any conviction for an electoral infraction under sections 125, 135 or
136(2)(a) results in a 6-year prohibition from voting.

REPRESENTATION OF THE PEOPLE ACT, 19516

The Representation of the People Act of 1951 did not include all of the provisions relating to
elections; rather, it merely provided for the allocation of seats and the delimitation of
constituencies for the purpose of elections to the House of the People and Legislatures of
States, as well as the preparation of electoral rolls and the qualifications of voters at such
election.7

The provisions for the actual conduct of election to the house of Parliament and to the House
or Houses of the Legislature of each state, the qualifications and disqualifications for the
membership of these Houses, the corrupt practises and other election offences, and the
decision of election disputes were all left to be made in a subsequent measure. This was done
so that they could be included in the subsequent measure.8

The Representation of the People Act of 1951 was passed into law so that these provisions
may be made available. In a nutshell, this Act comprises provisions pertaining to the
following election topics, which are as follows:9

 Standards of eligibility for membership in Parliament and state legislatures, as well as

grounds for disqualification
6
Surinder Singh v Hardial Singh AIR 1985 SC 89 [LNIND 1984 SC 300].
7
https://legislative.gov.in/sites/default/files/04_representation
8
Representation of the People Act 1951 section 127(3).
9
https://www.indiacode.nic.in/handle/123456789/2096?sam_handle=123456789/1362

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  Public announcement of upcoming general elections
 The administrative apparatus necessary for the running of elections
 The process of registering political parties
 Administration of the elections
 Free distribution of some materials to candidates running for parties officially
recognised in the political system
 Disputes pertaining to election procedures
 Offenses related to electoral fraud and corrupt practises
 Inquiries into the possible disqualification of members and the powers granted to the
Election Commission to investigate such allegations
 Re-elections, as well as a time restriction for filling open positions
 Various regulations pertaining to electoral processes and procedures Preventing civil
courts from exercising their authority.10

Important Points Under R.P. Act, 1951 :-

I. Conviction for offences (S.8) 1. 6 years from date of conviction

II. Continuing further for 6 years from date of release
III. Conviction on corrupt practice
 Conviction for electoral offences
 Holders of office of profit under Government
 Dismissal for corruption or disloyalty
 Contract with Government (S.9A)
 Holding of office under Government Company
 Failure to lodge accounts of election expenses (S.10A)

DISTURBANCES AT ELECTION MEETINGS (SECTION 127) :-

1) Any person who acts or incites others to act in a disorderly manner at a public
meeting to which this section applies in order to prevent the transaction of the
business for which the meeting was called together shall be punished with
imprisonment for a term not exceeding three months or a fine not exceeding one
thousand rupees, or both.11
10
"The Numbers Game" (Delhi Letter from "A Political Correspondent"), NOW, Jan. 20, 1967
11
https://lawgist.in/representation-of-the-people-act/127A accessed on 20-11-2022 at 11:00 a.m.

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 2) This section applies to any public meeting of a political nature conducted in any
constituency between the date of the issuance of a notice under this Act requesting the
constituency to elect a member and the date of the election.
3) If a police officer reasonably suspects a person of committing an offence under
subsection (1), he may, if requested by the chairman of the meeting, require that
person to immediately declare his name and address, and if that person refuses or fails
to do so, or if the police officer reasonably suspects him of giving a false name or
address, the police officer may arrest him without a warrant.12

DISTURBANCES AT ELECTION MEETINGS DURING THE SPECIFIC 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.

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 acting
in dis- orderly 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 if the police officer reasonably suspects him of giving false name or
address the police officer may arrest such person without warrant.

ELECTORAL OFFENCE UNDER THE RP ACT

Filing a false affidavit or hiding any facts in the candidate's affidavit is an offence under
Section 125A of the RP Act. Anyone who commits the aforementioned offence will face a 6-
month jail sentence, a fine, or both. However, there is no clear option for follow-up action in
the case that candidates file fraudulent affidavits. As a result, there have been multiple

12
3 Eric da Costa, The General Elections-XV; "Prospects of Nonviolent Revolution Disestablishing the
Establishment," The Economic Times, Jan 30, 1967.

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complaints about fraudulent representations in affidavits misleading voters. Union of India
vs. Ashwini Kumar Upadhyay.

Under Article 32 of the Constitution, advocate Ashwini Upadhyay filed a public interest
action before the Supreme Court seeking orders to make the submission of false affidavits in
elections an offence.13

Upadhyay sought directions from the Centre in his PIL, citing upcoming elections, to "make
false statement or declaration before the Election Commission, Chief Electoral Officer,
District Election Officer, Presiding Officer, or other similar authority, an electoral offence, in
accordance with the Important Electoral Reforms proposed by the Election Commission of
India." He said that the Law Commission of India has suggested making fraudulent affidavit
filing a cognizable crime punishable by two years in jail, and that the offence should also be
added under Section 8(1), which would result in election disqualification.14

However, the government has remained oblivious to this idea. Upadhyay also relied on the
Election Commission of India's recommendation, made on February 3, 2011, to amend
Section 125A of the RPA, 1951, to provide that any complaint regarding false statement in
the affidavit in connection with the nomination paper shall be filed before the Returning
Officer concerned within 30 days of the date of election declaration, and that it shall be the
responsibility of the RO to take proper follow-up action. A complaint may also be lodged
directly with the Magistrate. He said that the ECI has repeatedly emphasised the necessity of
applicants providing accurate information in their affidavits. False affidavits in election
affairs may have highly significant implications since they undermine election purity, and in
order to make an educated decision, the elector has the right to know the actual facts about
the candidates. The Court concluded in Krishnamurthy vs. Siva Kumar that erroneous and
fraudulent information interferes with the free exercise of the voter's voting right. It was
argued that while section 125A of the RP Act makes filing a false affidavit an offence
punishable by only six months in prison, it was a much more serious offence that should be
included in the corrupt practises under section 123 of the RP Act, and thus the candidate
should be disqualified from contesting elections.15

13
4 Shiv Shastri, "The Indian Cultural Revolution," The Indian Expres, March 1, 1967.
14
Sulekh C. Gupta, "Fourth General Elections: Its Dimension and Dialectics," Main- stream, March 11, 1967, p.
30.
15
https://timesofindia.indiatimes.com/city/hyderabad/hyderabad-ceo-asks-deos-to-take-action-on-those-
disturbing-election-meetings accessed on 21-11-2022 at 12:00 p.m.

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The Court ruled that submitting a false affidavit is a severe offence that violates the notion of
free and fair elections, but they also said that they cannot dictate legislation since that is the
responsibility of Parliament. The issue will be heard again in August of 2019.

SEPARATION OF CORRUPT PRACTICES AND ELECTORAL OFFENCES

In Gadakh Yashwantrao Kangaroo vs. EV Alias Balasaheb Vikhe Patil, the Supreme
Court held that in order to ensure that elections are held in a free and fair manner, allowing
men of high moral and ethical values to win, the law has laid down certain rules of electoral
morality and prohibited certain acts of commission and omission that sully the purity of
elections and have a corrupting influence and vitiating effect on the Some of these actions
have been labelled as "corrupt practises," while others have been labelled as "electoral
offences."16

Section 123 of the RP Act provides for corrupt practises. Election offences, on the other
hand, are defined in both the IPC (Chapter IXA) and the RP Act (chapter III of part VII). The
electoral offences under the IPC are criminal in nature and apply to all elections held under
any law to any elective body in the country; however, the corrupt practises and electoral
offences under the RP Act apply only to elections held under that Act to Parliament and State
legislatures and not to other elections, including elections to the offices of President and
Vice-President of India.17

The fundamental difference between these two classes of prohibited acts is that when a
corrupt practise is committed by a candidate, or by someone else with his consent, it vitiates
the entire election and results in the candidate's election being declared void, whereas the
commission of an electoral offence has no such fatal impact on the election result. In the
former, the entire constituency suffers because the candidate loses his seat and the
constituency loses representation in the legislature until another election is held to replace the
unseated member; in the latter, only the individuals committing the electoral offences suffer
as a result of their criminal liability.18

The commission of an electoral offence can be taken cognizance of as soon as it is committed

and the process of law set in motion immediately thereafter, in the same way that any other
criminal actions.

16
https://byjus.com/free-ias-prep/important-provisions-of-the-representation-of-people-act-1951/
17
6 Neville Maxwell, "India's Disintegrating Democracy," The Times (London), Jan. 27, 1967.
18
https://nap.nationalacademies.org/read/25120/chapter/7 accessed on 21-11-2022 at 12:30 p.m.

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The commission of a corrupt practise results in only certain civil disabilities, such as
disqualification from voting and contesting elections for a set period of time; however, any
electoral offence, if committed, will result in criminal liability and may result in
imprisonment, fine, or both, in addition to attracting civil disabilities from voting and
contesting elections in the case of certain specified electoral offences.

UNDUE INFLUENCE

That is, any direct or indirect interference or attempt to interfere with the free exercise of any
electoral right on the part of the candidate or his agent, or of any other person [with the
consent of the candidate or his election agent]: Provided, however, that— (a) without
prejudice to the generality of the provisions of this clause, any such person as is referred to
therein who—

(1)Threatens any candidate or any elector, or any person in whom.19

(ii) induces or attempts to induce a candidate or elector to believe that he, or any person in
whom he is interested, will become or will be rendered an object of divine displeasure or
spiritual censure, shall be deemed to interfere with such candidate's or elector's free exercise
of the electoral right within the meaning of this clause;

(b) A proclamation of public policy, a promise of public action, or the simple exercise of a
legal right without intent to interfere with an electoral right shall not be considered
interference under this article.

(2) The appeal by a candidate or his agent, or by any other person with the consent of a
candidate or his election agent, to vote or refrain from voting for any person on the 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, to further the prospects of that candidate's election or for prejudicially affecting that
candidate's election [Provided, however, that no symbol assigned to a candidate under this
Act will be considered a religious or national emblem for the purposes of this subsection.]20

(3A) The promotion or attempt to promote feelings of enmity or hatred between different
classes of citizens of India on the basis of religion, race, caste, community, or language by a
candidate or his agent or any other person with the consent of a candidate or his election

19
https://www.indiacode.nic.in/
20
R.P. Bhalla, Elections in India Legacy and Vision ,

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agent in order to advance the prospects of that candidate's election or to prejudicially affect
the election of any candidate.

(3B) The practise or conduct of sati, or its glorification, by a candidate or his agent, or any
other person with the permission of the candidate or his election agent, in order to advance
the chances of that candidate's election or to prejudicially impact the election of any
candidate. Explanation :- The terms "sati" and "glorification" in regard to sati shall have the
meanings ascribed to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988) for
the purposes of this section.21

(4) Publication by a candidate, his agent, or anybody else 9[with the consent of a candidate or
his election agent], of any statement of fact that is false, and which he either believes to be
false or does not believe to be true, in relation to any candidate's personal character or
conduct, or in relation to the candidature, or withdrawal, of any candidate, being a statement
reasonably calculated to prejudice that candidate's election prospects.22

(5) The renting or purchasing of any vehicle or vessel, whether for money or otherwise, by a
candidate, his agent, or any other person. [with a candidate's or his election agent's
permission] [or the use of such vehicle or vessel for the free transportation] of any elector
(other than the candidate, his family, or his agent) to or from any polling station supplied
under section 25 or a site established under sub-section (1) of section 29 for the poll:
Provided, however, that hiring a vehicle or vessel by an elector or several electors at their
joint expense to transport him or them to and from any such polling station or place fixed for
the poll shall not be considered a corrupt practise under this clause if the vehicle or vessel so
hired is a vehicle or vessel not propelled by mechanical power: Furthermore, the use of any
public transportation vehicle or vessel, or any tramcar or railway carriage, at the expense of
any elector, for the purpose of travelling to or from any such polling station or site
established for the poll, will not be considered a corrupt practise under this section.
Explanation:- In this section, the term "vehicle" refers to any vehicle utilised or capable of
being used for road transport, whether driven by mechanical power or otherwise, and whether
used to tow other vehicles or not.23

(6) Infringement or authorization of spending in violation of section 77.

21
Anand Ballabh Kafaltiya, Democracy and Election Laws,
22
A.K. Rajan, Electoral Reforms, Ma
23
Sanjay Kumar, 'Reforming Indian Electoral Process', Economic and Political Week 24, 20

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(7) Obtaining or procuring or abetting or attempting to obtain or procure, by a candidate or
his agent or, by any other person 11[with the consent of a candidate or his election agent],
any assistance (other than the giving of a vote from any person in the service of the
Government and belonging to any of the following classes, namely:24

(a) officers with gazetted status;

(b) salaried judges and magistrates;

(c) personnel of the Union's armed forces;

(d) members of law enforcement;

e) excise officers

(f) revenue officers other than village revenue officers known as lambardars, malguzars,
patels, deshmukhs, or by any other name, whose duty it is to collect land revenue and who are
compensated by a share of, or commission on, the amount of land revenue collected but who
do not perform any police functions; and

(g) such other category of government employees as may be prescribed: [Provided, however,
that where any person in the service of the Government and belonging to any of the
aforementioned classes, in the discharge or purported discharge of his official duty, makes
any arrangements or provides any facilities or does any other act or thing for, to, or in relation
to, any candidate or his agent or any other person acting with the consent of the candidate or
his election agent (whether by reason of the office held by the candidate or for any other
reason), [Booth capture by a candidate, his agent, or another individual.]25

Explanation:- (1) The term "agent" in this section includes an election agent, a polling agent,
and any person who is held to have acted as an agent in connection with the election with the
candidate's permission.

For the purposes of section (7), a person is regarded to aid in the advancement of a
candidate's election chances if he serves as that candidate's election agent. 17[(3)
Notwithstanding anything else in law, the publication in the Official Gazette of the
appointment, resignation, termination of service, dismissal, or removal from service of a
person in the service of the Central Government (including a person serving in connection

24
Dinesh Goswami Repo
25
The Representation of People (Amendment) Act, 1996, A

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with the administration of a Union territory) or of a State Government shall be conclusive
proof :-

(i) of such appointment, resignation, termination of service, dismissal, or removal from

service, and26

(ii) where the date of taking effect of such appointment, resignation, termination of service,
dismissal, or removal from service, as the case may be, of the fact that such person was
appointed with effect from the said date, or in the case of resignation, termination of service,
dismissal, or removal from service, of the fact that such person ceased to be in such service
with effect from the said date.][(4) For the purposes of subsection (8), the term "booth
capturing" has the same meaning as it does in section 135A.] Section 171E provides for
simple or harsh imprisonment for a period of up to one year, or a fine, or both.

ELECTORAL OFFENCES AND PENAL PROVISIONS :-

Bribery is defined as a corrupt practise and an electoral crime under sections 123(1) of the RP
Act and 171B/171E of the IPC. According to the provision, anyone delivers a gratification to
any person with the intent of influencing him or any other person to exercise any electoral
right or rewards any person for exercising any such right commits bribery. Giving
gratification is one method to conduct bribery, according to this subclause. The giver's goal
must be to either convince someone to exercise an electoral right or to reward someone who
has already exercised such a right. which states that anybody who receives any gratification,
either for himself or for another person, as a reward for exercising any such right or
encouraging or trying to encourage any other person to exercise any such right commits
bribery. Accepting gratification is therefore the second method of conducting bribery.
Bribery is therefore permissible under this provision either by providing gratification as
indicated in the first part of the first clause or by taking gratification as mentioned in the
second part of the first clause. There is also a proviso clause that states that a pronouncement
of public policy or a pledge of public action is not an offence under this section.27

According to the second clause of this provision, anybody who offers, agrees to provide, or
offers or seeks to get a gratification is considered to give one. In other words, satisfaction is
judged to have been offered in any of four circumstances: when a person gives gratification,
agrees to give gratification, offers to obtain gratification, or strives to get gratification. As a
26
S.R. Sen, 'Electoral System: Urgency of Basic Reforms', Economic and Politi February 9, accessed on 22-11-
2022 at 1:00 p.m.
27
0. Sanjay Kumar, 'Reforming Indian Electoral Process', Economic and Political 24, 20

19 | P a g e
result, the second sentence expands on the concept of "bribery through delivering
satisfaction," which was introduced in clause (1) I of this section.28

The third clause of this section expands on the concept of 'bribery through receiving
gratification,' which was introduced in clause (1) (ii) of this section. According to the third
clause, a person who obtains, agrees to accept, or attempts to obtain a gratification is deemed
to accept it, and a person who accepts a gratification as a motive for doing something he has
no intention of doing, or as a reward for doing something he has not done, is deemed to have
accepted the gratification as a reward.29

CASE LAWS

 ABHIRAM SINGH V. C.D. COMMACHEN30

Background of the Case :-

The Representation of the People Act, 1951, aims to maintain the purity of the electoral
process and provide for the conduct of elections by enlisting the “corrupt practices” and other
offences which, if proved, may lead to disqualification of a candidate under Section 100 of
the Representation of the People Act, 1951.

Abhiram Singh, a BJP candidate contesting from Santacruz constituency in Mumbai in 1990,
was accused of having indulged in corrupt practices by appealing to the voters on the ground
of religion. The matter came up before the Supreme Court which then had to ascertain the
scope of Section 123 of the Representation of the People Act, 1951.

Facts :-

• Abhiram Singh was elected to the No. 40, Santa Cruz Legislative Assembly Constituency in
1990 for the Maharashtra State Assembly and his election was challenged by Commachen in
the Bombay High Court.

• While hearing the appeal, a Bench of three learned Judges, on April 16, 1992, expressed
the view that the content, scope and what constitutes a corrupt practice under sub-sections (3)
or (3A) of Section 123 of the Representation of the People Act, 1951 needs to be laid down
clearly to avoid miscarriage of justice in interpreting ‘corrupt practice’.

28
. Elections in India, Major Events and New Initiatives 1996-2000, Electio India, New Delhi, 20
29
Global Dimensions of Electoral Democracy , Election Commission of India, New Delhi p.34.
30
AIR (1976) 2 SCC

20 | P a g e
• The Bench was of the opinion that the appeal requires to be heard and decided by a larger
Bench of five Judges of the Court.

In Narayan Singh v. Sunderlal Patwa, the election of Sunderlal Patwa from the Bhojpur
Constituency No. 245 in Madhya Pradesh to the Legislative Assembly in 1993, was under
challenge on the ground of a corrupt practice, in that the returned candidate had allegedly
made a systematic appeal on the ground of religion in violation of Section 123(3) of the
Representation of the People Act. 

• “The High Court in the case construed the provision of sub-section (3) of Section 123 of
the Representation of People’s Act to mean that, it will not be a corrupt practice when the
voters belonging to some other religion are appealed, other than the religion of the candidate.
This construction gains support from a three-Judge Bench decision of this Court in Kanti
Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel as well as the
subsequent decision of this Court in Ramesh Yeshwant Prabhoo (Dr) v. Prabhakar
Kashinath Kunte.

• While the five-Judge Bench was hearing the Abhiram Singh Case on January 30, it was
informed that an identical issue was raised in the election petition filed by one Narayan Singh
against BJP leader Sunderlal Patwa and another Constitution Bench of five Judges of the
Apex Court has referred to a larger Bench of seven Judges. Thereafter, an Order was made
that “since one of the questions involved in the present appeal is already referred to a larger
Bench of seven Judges, we think it appropriate to refer this appeal to a limited extent
regarding interpretation of sub-section (3) of Section 123 of the 1951 Act to a larger Bench of
seven Judges.”

Related Laws

Section 123 (3) of The Representation of the People Act, 1951. Corrupt practices: The
following shall be deemed to be corrupt practices for the purposes of this Act: (3) The appeal
by a candidate or his agent or by any other person with the consent of a candidate or his
election agent to vote or refrain from voting for any person on the ground of his religion,
race, caste, community or language or the use of, or appeal to religious symbols or the use of,
or appeal to, national symbols, such as the national flag or the national emblem, for the

21 | P a g e
furtherance of the prospects of the election of that candidate or for prejudicially affecting the
election of any candidate:31

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different
classes of the citizens of India on grounds of religion, race, caste, community, or language, by
a candidate or his agent or any other person with the consent of a candidate or his election
agent for the furtherance of the prospects of the election of that candidate or for prejudicially
affecting the election of any candidate. (3B) The propagation of the practice or the
commission of sati or its glorification by a candidate or his agent or any other person with the
consent of the candidate or his election agent for the furtherance of the prospects of the
election of that candidate or for prejudicially affecting the election of any candidate.
Explanation: For the purposes of this clause, "sati" and "glorification" in relation to sati shall
have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act,
1987 (3 of 1988).

Right to Freedom 19. (1) All citizens shall have the right— (a) to freedom of speech and
expression; (b) to assemble peaceably and without arms; (c) to form associations or unions;
(d) to move freely throughout the territory of India; (e) to reside and settle in any part of the
territory of India;

Issues

• Whether the words “his religion” in Section 123(3) of the Representation of the People Act,
1951, have restricted the scope to only include religion of the candidate, or his agent, or any
other person with the consent of the candidate or have widened to include the religion of the
voters as well.

• Whether the Article 123(3) of the Representation of the People Act, 1951, violated Article
19(1)A of the Indian Constitution which guarantees the right to freedom of speech and
expression, as it restricts the candidate’s political speech to some measure.

Judgement

• The 7-Judge Bench delivered a landmark verdict, where by a majority of 4:3, the majority
Judgment delivered by Justice Lokur with concurring Judgments by Chief Justice T.S.
Thakur and Justice Bobde, decided that an appeal on the grounds of religion – be it the

31
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious
symbol or a national symbol for the purposes of this clause.

22 | P a g e
candidate, the agent of the candidate, any person with the consent of the candidate, or even
the religion of the voters would amount to a corrupt practice. The majority in its Judgment
gave a broad construction to the words of Section 123 of the Representation of the People
Act, 1951 and has expanded its boundaries to take in any appeal on the grounds of religion,
caste, language or race.32

Any appeal made to an elector by a candidate or his agent or by any other person with the
consent of a candidate or his election agent to vote or refrain from voting for the furtherance
of the prospects of the election of that candidate or for prejudicially affecting the election of
any candidate on the ground of religion, race, caste, community or language of (i) any
candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the
candidate or (iv) the elector. • It is a matter of evidence for determining whether an appeal
has at all been made to an elector and whether the appeal if made is in violation of the
provisions of Sub-Section (3) of Section 123 of the Representation of the People Act, 1951.33

The five Judge Bench of the Supreme Court in 1954 while dealing with the Case, held that
the regulation of election speech did not violate Article 19(1)(a) of the Indian Constitution
because it was not a restriction upon speech, but only placed certain conditions upon persons
who wanted to stand for elections. The main idea being, that a citizen was free not to stand
for elections, and engage in uninhibited free speech.

Other Related Cases

• Singh Sidhanti v. Pratap Singh Daulta Held34: “The corrupt practice defined by clause (3)
of Section 123 is committed when an appeal is made either to vote or refrain from voting on
the ground of a candidate’s language. It is the appeal to the electorate on a ground personal to
the candidate relating to his language which attracts the ban of Section 100 read with Section
l23(3) of the Representation of the People Act, 1951. Therefore, 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 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, it will not amount to a corrupt practice.

32
ections in India, Major Events and New Initiatives 1996-2200, Election Commission of India, New Delhi,
2000, p.311.
33
J.C. Agarwal and N.K. Chowdhry, Lok Sabhya Elections 1999 , New Delhi, 2000, p. 142.
34
1965 AIR 183, 1964 SCR (6) 750

23 | P a g e
• Kultar Singh v. Mukhtiar Singh Held 35: “In order that the democratic process should
thrive and succeed, it is of utmost importance that our elections to Parliament and the
different legislative bodies must be free from the unhealthy influence of appeals to religion,
race, caste, community, or language. If these considerations are allowed any way in election
campaigns, they would vitiate the secular atmosphere of democratic life, and so, Section
123(3) wisely provides a check on this undesirable development by providing that an appeal
to any of these factors made in furtherance of the candidature of any candidate as therein
prescribed would constitute a corrupt practice and would render the election of the said
candidate void.

• Kanti Prasad Jayshanker Yagnik Held36: “One other ground given by the High Court is
that “there can be no doubt that in this passage (passage 3) Shambhu Maharaj had put
forward an appeal to the electors not to vote for the Congress Party in the name of the
religion.” In our opinion, there is no bar to a candidate or his supporters appealing to the
electors not to vote for the Congress in the name of religion. What Section 123(3) bars is that
an appeal by a candidate or his agent or any other person with the consent of the candidate or
his election agent to vote or refrain from voting for any person on the ground of his religion,
i.e., the religion of the candidate.” 

• Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte & Others Held 37:
“There can be no doubt that the word ‘his’ used in sub-section (3) of the Representation of
the People Act, 1951 must have significance and it cannot be ignored or equated with the
word ‘any’ to bring within the net of sub-section (3) any appeal in which there is any
reference to religion. The religion forming the basis of the appeal to vote or refrain from
voting for any person, must be of that candidate for whom the appeal to vote or refrain from
voting is made.”

 BHADAR RAM THROUGH LRS V. JASSA RAM38

Facts :-

The land in question is in the hamlet of Dharamsinghwala, Tehsil Sadulshahar, District Sri
Ganganagar, Rajasthan. The aforementioned property was awarded to one Chunilal, a
Scheduled Caste landless person and the father of the respondent herein - the original
35
1965 AIR 141, 1964 SCR (7) 790
36
1969 AIR 851, 1969 SCR (3) 400
37
1996 AIR 1113, 1996 SCC (1) 130
38
2022 Latest Caselaw 13 SC

24 | P a g e
plaintiff. According to the respondent - original plaintiff's case, in 1972, the said Chunilal
borrowed Rs.5000/ from one Puran Singh and, under the guise of documentation, the said
Puran Singh belonging to the Jat High Caste fraudulently forced Chunilal to sign the sale
deed in favour of the appellant herein - original defendant - Bhadar Ram, who was a resident
of Punjab.

The said Chunilal filed an ejectment suit against Puran Singh and Bhadar Ram, claiming that
he was the allottee of the land and that the sale deed dated 21.06.1972 was void and
ineffective, in violation of Section 42 of the Rajasthan Tenancy Act, 1955 and Section 13 of
the Rajasthan Colonization Act, 1954. The learned trial Court decreed the said suit on
October 13, 1980, holding that the land was in possession of Puran Singh, who was not a
Scheduled Caste person, and that the sale deed is in violation of Section 13 of the Rajasthan
Colonization Act, 1954, as well as Section 42 of the Rajasthan Tenancy Act, 1955, and thus
the said Puran Singh is liable to be evicted.

According to the respondent original plaintiff's complaint, ownership of the land was
transferred to him in accordance with the learned trial Court's order. The possession was
discovered to be with Puran Singh rather than Bhadar Ram. Feeling offended and unhappy
with the learned trial Court's verdict and order/decree, the appellant - original defendant filed
an appeal before the Revenue Appellate Tribunal.

The aforementioned Appeal was rejected by the Revenue Appellate Tribunal. The appellant -
original defendant filed an appeal before the Board of Revenue, which was accepted by
judgement dated 25.04.1989 by granting the appellant - original defendant the advantage of
compounding upon payment of compounding costs under Section 13 of the Rajasthan
Colonization Act, 1954.

The respondent - original plaintiff - filed a Writ Petition before the learned Single Judge of
the High Court, feeling offended and unsatisfied with the Board of Revenue's ruling. The
abovementioned Writ Petition was rejected by the learned Single Judge of the High Court in a
decision and decree dated September 15, 1999.

Arguments :-

25 | P a g e
The original plaintiff then filed an appeal before the Division Bench, and by the impugned
judgement and order, the Division Bench of the High Court allowed the said appeal and set
aside the judgement and order passed by the learned Single Judge, holding that the appellant
herein - original defendant, being a resident and Scheduled Caste of the State of Punjab,
could not have benefited from his status as a Scheduled Caste in the State of Rajasthan. The
Division Bench of the High Court relied on this Court's judgement in Action Committee on
Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of
Maharashtra and Others vs. Union of India and Others,39.

The appellant original defendant - purchaser of the property in issue, feeling offended and
unsatisfied with the impugned decision and order given by the Division Bench of the High
Court, has preferred the current Appeal.

Learned Counsel appearing on behalf of the appellant - original defendant has vehemently
submitted that the appellant - original defendant was all alone throughout the case set up by
the respondent - original plaintiff that the transaction was void for lack of prior permission as
required under Section 13 of the Rajasthan Colonization Act, 1954 before executing the sale
between members of Scheduled Caste and that the appellant - original defendant was
allegedly used by Puran Singh.

According to the submission, the respondent - original plaintiff conceded that the appellant -
original defendant is a member of the Scheduled Caste and is well-known in the society as
such. It is argued that because there was never a proper / formal issue framed qua the
appellant - original defendant's ordinary status for determining caste status in relation to the
State of Rajasthan, adequate evidence could not be presented, despite the fact that the
appellant's father - forefathers are Rajasthan residents.

It is argued that, following the 1983 amendment, Section 13A was inserted in the Rajasthan
Colonization Act, 1954, which allows compounding and regularisation of transactions
executed without the permission required under Section 13 of the Rajasthan Colonization
Act, 1954, on deposit of compounding fees, as was done correctly by the Board of Revenue
in the present case after the amendment. It is stated that, until then, the fundamental focus of
the respondent's - original plaintiff's - position was that the transaction was not in line with
Section 13 of the Rajasthan Colonization Act, 1954. It is claimed that the respondent -
39
AIR (1994) 5 SCC 244

26 | P a g e
original plaintiff - moved the attention to Section 42 of the Rajasthan Tenancy Act, 1955 only
after the Board of Revenue's ruling.

It is argued that just because the appellant - original defendant resides or owns property in
Punjab does not constitute him a usually inhabitant of Punjab. Section 20(1) of the
Representation of the People Act, 1950, is cited. It is argued that a further investigation into
that component is /was necessary before residence status may be decided.

Learned Counsel for the appellant - original defendant referred to the matter of Action
Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the
State of Maharashtra and Another (supra).

Concerning the reliance placed on the decision in the case of Action Committee on Issue of
Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and
Others (supra), it is submitted that the said judgement only discusses the status of a person in
relation to a State to which he has migrated and has nowhere discussed a situation in which a
person who has migrated to another State was returning to his State of origin and at the time
of the decision He said that the judgement only discusses Scheduled Caste status in terms of
employment/education or the like, as well as the purchase or sale of property, which has not
been investigated.

It is argued that after considering two constitution Bench judgments, Marri Chandra
Shekar Rao vs. Dean, Geth G.S. Medical College and Others, 40 and Action Committee on
Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of
Maharashtra and Others (supra), it is held that a migrant cannot be recognised as Scheduled
Caste of simply because the same caste is recognised as Scheduled Caste.

It is submitted that, applying the law laid down by this Court and the aforementioned
decisions, the Division Bench of the High Court rightly allowed the Appeal and rightly held
that the appellant - original defendant, being a resident of the State of Punjab and a member
of the Scheduled Caste in the State of Punjab, cannot claim the benefit of the Scheduled
Caste in Rajasthan, and thus, the transaction between the respondent plaintiff and the
appellant original defendant is invalid.

40
AIR (1990) 3 SCC 130

27 | P a g e
It is further argued that the aforementioned problem is addressed in another judgement of this
Court in the matter of Bir Singh vs. Delhi Jal Board,41. As a result, it is argued, no
intervention by this Court is required in the exercise of powers under Article 136 of the
Indian Constitution.

Issue :-

whether the sale transaction in favour of the appellant original defendant can be said to be in
violation of Section 42 of the Rajasthan Tenancy Act, 1955 is concerned

Judgement :-

The judgement of this Court in Action Committee on Issue of Caste Certificate to Scheduled
Castes and Scheduled Tribes in the State of Maharashtra and Another will be fully relevant to
the circumstances of the instant case as well. The submission on behalf of the appellant
original defendant that the said decision is inapplicable to the facts of the case at hand
because the Court was considering the issue of employment and education in that case and
the dispute in the present case is about the sale/sale of property has no substance and cannot
be accepted.

This Court's reasoning in the case of Action Committee on Issue of Caste Certificate to
Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Others 42 is based on
an interpretation and a plain reading of Clause I of Articles 341 and 342 of the Indian
Constitution, which are referred to above. We see no reason to limit the applicability of this
Court's decision in the case of Action Committee on Issue of Caste Certificate to Scheduled
Castes and Scheduled Tribes in the State of Maharashtra and Others43 to employment,
education, or the like and not to make it applicable to the purchase and sale of property in the
case of the sale and purchase of land belonging to a Scheduled Caste person in the State of
Rajasthan.

This Court's Constitution Bench rendered two decisions in Marri Chandra Shekar Rao vs.
Dean, Seth G.S. Medical College & Ors. and the Action Committee on the Issue of Caste
Certificates to Scheduled Castes and Scheduled Tribes in Maharashtra & Anr. Union of India

41
(2018) 10 SCC 312.
42
(supra)
43
(supra)

28 | P a g e
& Others v. have held that only because the same caste is recognised as Scheduled Caste in
the migrant State, the migrant cannot be recognised as Scheduled Caste of the migrant State.
The issuing of a caste certificate by the State of Uttarakhand, as in this instance, cannot soften
the rigours of the Constitution Bench decisions in Marri Chandra Shekar Rao and Action
Committee."

In light of the foregoing, the appellant - original defendant, being a Scheduled Caste
belonging to the State of Punjab and an ordinarily and permanent resident of the State of
Punjab, cannot claim the benefit of a Scheduled Caste in the State of Rajasthan for the
purpose of purchasing land belonging to a Scheduled Caste person of the State of Rajasthan,
which was allotted to the original allottee as a Scheduled Caste landless person, and thus, as
rightly held.

Even if not, in the facts and circumstances of the case, the sale transaction in favour of the
appellant original defendant can be said to be in violation of Section 13 of the Rajasthan
Colonization Act, 1954. It should be noted that the Board of Revenue granted the appellant
original defendant the benefit of Section 13A of the Rajasthan Colonization Act, 1954, and
the Board permitted the appellant original defendant to pay compound interest.

However, it should be noted that when the Board of Revenue granted the benefit of
compounding under Section 13A(2), an order of ejection was already passed against the
appellant original defendant and Puran Singh, and possession was already handed over to the
respondent - original plaintiff from Puran Singh, who was found to be in actual physical
possession of the land on 30.12.1980.

In that light, no order of compounding in favour of the appellant original defendant and/or
even Puran Singh could have been passed by the Board of Revenue in exercise of power
under Section 13(A)(2) of the Rajasthan Colonization Act, 1954, and thus, the order passed
by the Board of Revenue confirmed by the learned Single Judge permitting compounding
was contrary to Section 13A(2) of the Rajasthan Colonization Act, 1954, and thus, also the
lamentable order passed by the Board of Revenue

In light of the foregoing and for the reasons stated above, the land transaction in favour of the
appellant original defendant was in violation of Section 13 of the Rajasthan Colonization Act,
1954 and Section 42 of the Rajasthan Tenancy Act, 1955, which is rightly held to be void by

29 | P a g e
the Division Bench of the High Court. We completely agree with the Division Bench's
conclusion.

 N.P. PONNUSWAMI V. THE RETURNING OFFICER, NAMAKKAL

CONSTITUENCY, SALEM DISTRICT AND OTHERS44

Facts :-

The appellant submitted his nomination paper for election to the (then) Madras Legislative
Assembly from Salem District's Namakkal Assembly Constituency. On November 28, 1951,
during the review of nomination papers, the Returning Officer rejected his nomination
document on many reasons. Dissatisfied with the Returning Officer's decision to reject his
nomination paper, the appellant petitioned the Madras High Court under Article 226 of the
Constitution, requesting that the Returning Officer add his name on the list of legally
nominated candidates.

The High Court rejected the writ petition on the grounds that it lacked power to intervene
with the Returning Officer's ruling under Article 329 (b) of the Constitution. The appellant
then filed this appeal with the Supreme Court. The Supreme Court likewise denied the
appeal, affirming the High Court's decision.

The Supreme Court ruled that the term "election" in Article 329 (b) refers to the entire
electoral process, beginning with the issuance of the notification calling the election and
ending with the declaration of results, and that the electoral process, once begun, could not be
interfered with by Courts at any intermediate stage. Articles 226 and 329 (b) of the Indian
Constitution (1950) Jurisdiction of the High Court under Article 226 - If the order of the
Returning Officer rejecting a nomination document for election to the State Assembly is
excluded by Article 329 (b).

The High Court lacks jurisdiction under Article 226 of the Constitution to hear cases alleging
wrongful rejection of nomination papers by the Returning Officer of candidates for election
to the House of Parliament or the State Assembly. The High Court's jurisdiction under Article
226 has been limited to subjects covered under Article 329, which encompasses all "electoral
proceedings."

44
AIR 1952 SC 64, (1952) IMLJ 775 SC, 1952 1 SCR 218

30 | P a g e
The scheme of Part XV of the Constitution and the Representation of the People Act, 1951
appears to be that any matter that has the effect of vitiating an election should be brought up
only at the appropriate stage and in the appropriate manner before a special tribunal and
should not be brought up before any Court at an intermediate stage. The sole relevance that
the rejection of a nomination document has under the election law is that it might be used as a
reason to put the election in doubt. Article 329 (b) seems to have been created to specify the
method and stage at which this and other reasons that may be claimed under the legislation to
call the election in question might be raised. The phrasing of this Article implies that such
reasons cannot be raised in any other way, at any other stage, or before any other Court.
Appeal under Article 132 of the Indian Constitution from the judgement and order of the
High Court of Judicature at Madras (Subba Rao and Venkatarama Ayyar, JJ.) in Writ Petition
No. 746 of 1951.

Judgement :-

This is an appeal from a Madras High Court judgement rejecting the appellant's plea for a
write of certiorari. The appellant had submitted nomination papers for election to the Madras
Legislative Assembly from the Namakkal Constituency in Salem District. The Returning
Officer for that constituency took up for scrutiny the nomination papers filed by the various
candidates on the 28th of November, 1951, and on the same day he rejected the appellant's
nomination paper on certain grounds that need not be set out because they are not material to
the point raised in this appeal. The appellant then petitioned the High Court under Article 226
of the Constitution for a writ of certiorari to overturn the Returning Officer's decision to
reject his nomination paper and to require the Returning Officer to put his name on the list of
legitimate nominations to be published. The High Court denied the appellant's plea on the
grounds that it lacked power to overturn the Returning Officer's decision under the
requirements of Article 329 (b) of the Constitution. The appellant's claim in this appeal is that
the High Court's opinion is incorrect, that Article 329 (b) of the Constitution does not impact
the High Court's jurisdiction, and that he was entitled to a writ of certiorari under the
circumstances of the case.

The arguments against the High Court's decision are broadly divided into two
categories:

31 | P a g e
(1) that the High Court's conclusion does not follow from the language of Article 329 (b) of
the Constitution, whether read alone or in conjunction with the other Articles in Part XV of
the Constitution; and (2) that the anomalies that will arise if the High Court's construction of
Article 329 (b) is accepted are so startling that the Courts should lean in favour of the
appellant's construction. The first point, which is based on the interpretation of Article 329
(b), deserves careful examination, but I believe the second argument may be addressed
succinctly at the start. It should be noted that what the appellant refers to as an anomaly is
more accurately characterised as hardship or discrimination, and Wallace, J., said in powerful
words in Sarvothama Rao v. Chairman, Municipal Council Said :

"I am absolutely convinced that any post-election remedy is completely insufficient to

provide the relief sought by the petitioner, namely, that this election, already publicised, be
postponed until it may be conducted with himself as a candidate," Saidapet. It's no comfort to
tell him he can run in another election. It is not a solution to tell him that he must allow the
election take place and then have it annulled by petition and a new election ordered. The next
election may be held under quite different circumstances, with an entirely new slate of
candidates. The petitioner may only get sufficient remedy if the intended election without
him is delayed until his rejected candidacy is reinstated, and so an injunction stopping this
election was absolutely essential, unless the relief requested was to be refused in limine. In
most cases of this type, it will be difficult for the aggrieved party to file his suit in time before
the threatened wrong is committed; but once he has done so, the Court cannot stifle itself by
allowing the wrong which it is asked to prevent to be actually committed while it is trying the
case."

However, these remarks are just one side of the story, and the same learned Judge stated the
opposite side of the story in a future case45 in the following passage:

"The petitioner is not without recourse. His solution is an election petition, which he has
apparently already filed. It is claimed for him that a remedy that just permits him to set aside
an already conducted election is not as effective as one that allows him to cancel the election
entirely, and some remarks at page 600 of Sarvathama Rao v. Chairman, Municipal Council,
Saidapet1 are cited. First and foremost, we do not understand how the simple fact that the
petitioner cannot halt the election and has his remedy only once it is finished through an

45
Desi Chettiar v. Chinnasami Chettair 113 Ind Cas 874, (1929) 56 MLJ 162

32 | P a g e
election petition confers any right to get a writ. Second, these views were addressed at the
appropriateness of an injunction in a civil proceeding, which we are not concerned with here.

Judgement :-

Finally, it should be noted that these words were made some years ago, when the practise of
people stepping forward to disrupt elections in order to protect their own particular interests
was not as frequent. It is obvious that there is another side of the issue to consider, namely the
inconvenience to public administration of having elections and Local Board activity held up
while people pursue their particular concerns. We understand that the election for elective
seats in this Union has been postponed since May 31st due to this petition, with the result that
electors have been unable to have any representation on the Board since then, and the Board
is functioning, if at all, with a mere nominated fraction of its total strength; and this state of
affairs the petitioner proposes to continue until his own persona grievance is satisfied."

Therefore, Seven additional State High Courts have ruled that they lack jurisdiction to hear
petitions alleging unlawful rejection of nomination papers under Article 226 of the
Constitution. This point of view, in my opinion, is right and must be supported. As a result,
the appeal must fail and is rejected. Given the breadth and seriousness of the issues presented
in this appeal, no order to costs should be issued.

 THE ELECTION COMMISSION, INDIA V. SAKA VENKATA RAO, THE

UNION OF INDIA46

Facts :-

Shri Saka Venkata Rao was convicted and sentenced to 7 years severe imprisonment by the
Session's Judge of East Godavari in 1942. On August 15, 1947, he was liberated as part of the
celebration of Independence Day. In a byelection conducted from the Kakinad Assembly
constituency in June 1952, he was elected to the Madras Legislative Assembly. On July 3,
1952, a question was brought in the Assembly as to whether Shri Rao was disqualified from
serving as a member of the Assembly due to his aforementioned conviction. The matter was
submitted to the Governor of Madras by the Speaker. As required by Article 192(2) of the
Constitution, he sent the matter to the Election Commission for its opinion. On August 21,
1952, the Commission heard the matter. On the same day, Shri Rao filed an election petition
46
1953 AIR 210, 1953 SCR 1144

33 | P a g e
with the Madras High Court under Article 226 of the Constitution, arguing that Article 192 of
the Constitution applied only when a member of a State Legislature became disqualified after
being elected, not when the disqualification arose long before election, in which case the only
remedy was to challenge the validity of the election before an election Tribunal.

A solitary judge of the Madras High Court backed Shri Rao's arguments, ruling that Article
192 applied exclusively to situations of supervening disqualification and that the Election
Commission had no power to rule on the Petitioner's disqualification, which occurred long
before the election.

The Election Commission filed an appeal with the Supreme Court after being dissatisfied
with the High Court's decision. The Supreme Court denied the appeal, affirming and
maintaining the High Court's decision. Article 133 (3) of the Indian Constitution (1950) -
Scope - Decision of a single judge on a subject requiring constitutional interpretation - Grant
of certificate of fitness for appeal - Appeal right - Article 226 - Jurisdiction and powers under
- Scope - Articles 190 (3) and 192 (1) - Applicability solely to post-election disqualifications.

While it is true that constitutional issues could be raised in appeals filed without a certificate
under Article 132 of the Constitution, the terms of that Article make it clear that an appeal is
allowed from "any judgement, decree, or final order of a High Court," provided, of course,
that the requisite certificate is provided, and no restriction is placed on the right of appeal
based on the number of Judges by whom such judgement, decree, or final order was passed.
It would have been simple to include a reference to Article 132 in the opening lines of Article
133 (3), as well as in the immediately previous clause, if it was intended to exclude the right
of appeal in the event of a decision, etc., by one Judge. The entire scheme of the Supreme
Court's appellate jurisdiction clearly indicates that questions relating to the interpretation of
the Constitution are placed in a special category, regardless of the nature of the proceedings
in which they may arise, and a broad right of appeal is allowed in cases involving such
questions. An appeal to the Supreme Court against a single High Court judge's decision is not
forbidden by Article 133 (3) of the Constitution.

According to Article 226 of the Indian Constitution of 1950, the authority of a High Court is
to be exerted "throughout the territory in respect to which it has jurisdiction," which means
that writs issued by the Court cannot extend beyond the regions subject to its jurisdiction. The
person of authority to whom the High Court has the ability to issue such writs must be "inside

34 | P a g e
those territories," which obviously suggests that they must be subject to its jurisdiction either
by domicile or presence within those regions. A tribunal or authority permanently located and
normally carrying on its activities elsewhere (such as the Election Commission in New Delhi)
that exercises jurisdiction within those territorial limits (as in Madras State) so as to affect the
rights of parties therein (in any election dispute) cannot be regarded as "functioning" within
the High Court's territorial limits and thus being amenable to its jurisdiction under Article
226. The rule that a cause of action attracts jurisdiction in suits based on statutory enactment
cannot be applied to writs issued under Article 226, which makes no mention of any cause of
action or where it arises but insists on the presence of the person or authority "within the
territories" over which the High Court has jurisdiction.

Articles 190 (3) and 192 (1) apply exclusively to disqualifications that a member becomes
subject to after being elected as such, and neither the Governor nor the Election Commission
have power to inquire into a member's disqualification that originated long before his
election. On appeal from the judgement and order dated September 16, 1952, of the High
Court of Judicature at Madras (Subba Rao, J.) in Writ Petition No. 599 of 1952 brought under
the High Court's Special Original Jurisdiction under Article 226 of the Indian Constitution.

Judgement :-

This is an appeal from an order of a single Judge of the High Court of Judicature at Madras
issuing a writ of prohibition prohibiting the Election Commission, a statutory authority
established by the President with permanent offices in New Delhi, from investigating the
respondent's alleged disqualification for membership in the Madras Legislative Assembly.

the Federal Court's judgement in S. Kuppuswami Rao v. The King1, and therefore to ensure a
timely resolution of constitutional concerns at the heart of a matter, would be undermined,
since the explanation is not made relevant to the identical language "final order" used in
Article 133. (1). The entire scheme of the Supreme Court's appellate jurisdiction clearly
indicates that questions relating to the interpretation of the Constitution are placed in a special
category, regardless of the nature of the proceedings in which they may arise, and a broad
right of appeal is allowed in cases involving such questions. As a result, we overrule the
preliminary objection and determine that the appeal is viable.

35 | P a g e
For the reasons stated, we agree with the learned Judge below in holding that Articles 190 (3)
and 192 (1) apply only to disqualifications that a member becomes subject to after being
elected, and that neither the Governor nor the Commission has jurisdiction to investigate the
respondent's disqualification, which arose long before his election. However, since we have
determined that the High Court was not competent under Article 226 to issue any prerogative
writ to the appellant Commission, the appeal is permitted and the learned Judge's writ of
prohibition is quashed. We do not prioritise expenses.

 BRUNDABAN NAYAK V. ELECTION COMMISSIONER OF INDIA AND

ANR47

Facts :-

In 1961, Shri Brundaban Nayak was elected to the Orissa Legislative Assembly from the
Hinjili seat in Ganjam District. On August 18, 1964, one Shri P. Biswal filed an application
with the Governor of Orissa under Article 192(1) of the Constitution, alleging that Shri
Nayak had been disqualified following his election under Article 191 (1) (e) of the
Constitution read with Section 7 (d) of the Representation of the People Act, 1951. Under
Article 192 (2) of the Constitution, the Governor submitted the case to the Election
Commission for its opinion.

The Election Commission has launched an investigation into the situation. Shri Nayak
questioned the Commission's jurisdiction to conduct an investigation. The Commission,
however, overruled his complaint. Following that, he filed a Writ Petition with the Punjab
High Court under Article 226 of the Constitution, alleging, among other things, that the
matter of disqualification of a member of the Legislative Assembly could only be brought on
the floor of the House and not by anybody outside the House. The writ petition was dismissed
in limine by the High Court.

Shri Nayak then filed the current Supreme Court petition. The Supreme Court also dismissed
his appeal, ruling that any citizen could raise the question of disqualification of a sitting
member of a State Legislature before the Governor under Article 192 (1) of the Constitution,
and that the Election Commission had the authority to investigate the question of such
disqualification referred to it under Article 192 (2) of the Constitution.

47
1965 AIR 1892, 1965 SCR (3) 53

36 | P a g e
(a) Indian Constitution 192(1) - Scope - Who may ask a question - Under Article 192, any
ordinary person or voter may bring a question (1).

The first sentence of Art. 192(1) requires that a question arise; how it emerges, who raises it,
and under what conditions it is raised are unimportant for the purposes of applying this
paragraph. Such a matter may be made not only by Assembly members on the floor of the
Legislative Assembly, but also by an ordinary person or voter in the form of a complaint to
the Governor. The phrases "the matter must be sent for the judgement of the Governor" do
not imply that some other authority must first receive the complaint and, after a preliminary
and preliminary inquiry, pass it on or refer it to the Governor for his decision. The terms
simply emphasise that any matter of the sort covered by article (1) should be determined
solely by the Governor and Governor alone, with no other authority. The Courts' jurisdiction
does not extend to the resolution of the aforementioned issue. The purpose of the article is
obvious. A person who has received any of the disqualifications enumerated in Art. 191(1) is
ineligible to continue serving in the Legislative Assembly of a State, and the requirement to
leave his seat as a consequence of his subsequent disqualification has been imposed by the
Constitution itself under Art. 190. (3) (a), any citizen may file a complaint with the Governor
saying that a member of the Legislative Assembly has violated one of the disqualifications
listed in Art. 191(1) and should resign. (Paras 9, 12, 13, 14)

(b) Article 192(2) of the Indian Constitution - Scope - Election Commission Opinion - The
Election Commission, not the Governor, will conduct an investigation to reach such a
conclusion. The scheme of Articles 192(1) and (2) is straightforward. The judgement on the
matter posed under Art. 192(1) must, without a doubt, be made by the Governor, but it must
be in conformity with the Election Commission's conclusion. In essence, the judgement of the
Election Commission is crucial. When the Governor receives the complaint and transmits it
to the Election Commission, it is presumed that the Election Commission will try the case
before issuing an opinion. It would thus be incorrect to argue that the Governor should
conduct the investigation and then transmit to the Election Commission all of the information
gathered during the investigation in order for it to make an opinion and express it to the
Governor.

(c) Article 192(2) of the Indian Constitution - Election Commission receives complaint and
order of reference from Governor - Election Commission acts within its competence in
delivering notice to other party - The Election Commission's jurisdiction to conduct an
37 | P a g e
investigation is unaffected simply because copies of the complaint and order of reference
were not submitted with the notification.1 (d) Indian Constitution Art. 192(1), (2) - Scope -
Complaints filed under Art. 192(1) shall be resolved as soon as practicable. This is evident
from Art. 190. (3)

(d) Article 191(1) of the Indian Constitution - Scope - Disqualification must occur after
election.

Judgement :-

It might refer before we dismiss this appeal. The learned Attorney General drew our attention
to the observations made by the Chief Election Commissioner when he rendered his opinion
to the Governor on a similar question under Art. 192(2) in relation to the alleged
disqualification of Mr. Biren Mitra, a member of the Orissa Legislative Assembly, on May
30, 1964. "Where, as in the present cases, the relevant facts are in dispute and can only be
ascertained after a proper enquiry, the Commission finds itself in the unsatisfactory position
of having to give a decisive opinion on the basis of such affidavits and documents as may be
produced before it by interested parties," observed the Chief Election Commissioner. It is
preferable that the Election Commission be given the powers of a commission under the
Commissions of Enquiry Act of 1952, such as the authority to summon witnesses and
examine them under oath, the authority to compel the production of documents, and the
authority to issue commissions for the examination of witnesses." We would like to draw
Parliament's attention to these observations because we believe that the Election
Commission's difficulty in rendering its opinion under Art. 103(2) or Art. 192(2) appears
genuine. As a result, Parliament may well consider whether the suggestion made by the Chief
Election Commissioner should not be accepted and appropriate legislation adopted in that
regard.

As a consequence, the appeal is denied and dismissed with costs. Given that the current
procedures have unduly prolonged the investigation before respondent No. 4, we recommend
that respondent No. 1 evaluate the issue and provide its opinion to the Governor as soon as
feasible. It is scarcely necessary to state that if the charges made against the appellant are
determined to be true and respondent No. 1's view is in favour of the case presented by
respondent No. 2, issues may develop as a result of the constitutional requirement stipulated

38 | P a g e
by Art. 190. (3). Given the aforementioned requirement, it is essential that complaints filed
under Art. 192(1) be resolved as soon as feasible.

 SURINDER SINGH V. HARDIAL SINGH AND ORS48

Facts :-

i-Section 123-Corrupt Practice Allegation in an Election Petition-How should it be

established-Whether by preponderance of probabilities as in civil action or "evidence beyond
reasonable doubt" as in criminal prosecutions.

ii-Section 116A(1)-Election appeal-Nature of findings of facts-If Supreme Court may

intervene

iii-See 123 (2)-Unlawful Use of "Undue Influence"

Nature and evidence of-Whether interrupting an election meeting constitutes a corrupt

conduct under Section 123 (2)-Whether the selection of a person charged with murder as a
polling agent by a returning candidate amounts to the exercise of "undue influence."

iv-Sec. 123 (1) (A)-Corrupt Activity of "Bribe"-Whether alleviating public concerns while
canvassing for votes constitutes corrupt practise.

On May 31, 1980, the appellant was declared elected to the Punjab Legislative Assembly
from the Non-shehra-Pamuan Assembly Constituency. Respondents Nos. 1 and 2, two
Constituency voters, challenged his election in the High Court on two grounds: (1) that the
appellant's supporters disrupted an Akali Party meeting by using fire arms, fatally injuring
one and inflicting injuries on many others, and thus he committed a corrupt practise of
"undue influence" u/s. 123 (2) of the Representation of the Peoples Act 1951; and (2) that the
appellant, in order to get the votes of one Thus, the appellant engaged in a corrupt practise of
'Bribery' in violation of Section 123 (1) (A) of the Act. The High Court ruled that the
appellant's election was null and unlawful since both corrupt activities were conducted by the
appellant himself or via others with his permission and were covered by sections 123 (1) (A),
(B), and (2) of the Act. As a result of this, In addition to the two grounds of challenge
mentioned above, the respondent-petitioners contended I that the charges of corrupt practise

48
1985 AIR 89 1985 SCR (1)1059 1985 SCC (1) 91 1984 SCALE (2)659

39 | P a g e
should be allowed to be established on the basis of preponderance of probabilities, as in civil
litigation, rather than asking for proof of the allegation beyond reasonable doubt, as in a
criminal case; and (ii) that it was the Supreme Court's practise in election appeals not to enter
into re-appreciation of evidence and disturb findings. If the appeal is granted.

HELD :-

1.Section 116-C makes it clear that an appeal to the Supreme Court under the Act is to be
considered as a Civil appeal, with the same scope of jurisdiction as an appeal from a matter
disposed of in the High Court's original civil jurisdiction. Section 116-A (I) of the Act plainly
states that the appeal to this Court must be resolved by exercising the same jurisdiction as in
an appeal against the High Court's initial ruling. In this case, there can be no norm, whether
legislative or developed by this Court through lengthy use, that the Court would not intervene
with the conclusions of fact established at the trial stage. Ordinarily, a finding reached on the
basis of evidence would not be overturned, but if the Court is satisfied that injustice has been
done to one of the parties before it as a result of a wrong approach to a matter, it would not
only be within the Court's powers, but also its obligation, to rectify the mistake and do justice
to the party.

2. It has now been established by a series of judgments of this Court that accusations of
corrupt practise constitute quasi-criminal charges, and that the evidence necessary in support
of such claims would be the same as in a criminal prosecution. As a result, allegations of
corrupt practise are to be equated with criminal charges, and evidence would be beyond
reasonable doubt rather than preponderance of probability as in civil actions.

3. Election disputes are not common law or equity issues, but rather strictly statutory
processes, and the outcome of an election cannot be lightly tampered with. [1076B] [1954]
Jagannath v. Jaswant Singh & Ors. 5 SCR 892 D.\s4. The term 'undue influence' is defined
under Section 123 (2) of the Act. Any interference or attempt to interfere with the free
exercise of the electoral right by a candidate, his agent, or any person with his agreement or
the candidate's election agent has been declared a corrupt practise under Section 123 (2) of
the Act. The Act's Chapter II deals with agents and relates to the appointment of election
agents, polling agents, and counting agents. Section 79 (d) defines "Electoral Right" as "the
right of a person to stand or not stand, to withdraw or not withdraw from being a candidate, to
vote or not vote at any election."

40 | P a g e
There is also significant evidence that voting was free and that a sizable proportion of voters
utilised their electoral rights. These are factors that obviously militate against the election
petitioners' claim that voters were intimidated and their right to vote was jeopardised.
Furthermore, in the absence of the required pleading, the absence of any contemporaneous
complaint in writing or otherwise to the public officers within the polling booth, and the
nebulous nature of the oral evidence presented by the election petitioners, it cannot be said
that any objection to the election could truly be taken because Gurdial Singh acted as polling
agent in the particular electoral booth.

A candidate has the right to canvass votes. Anyone running for office as an electoral
representative has the right to feed his or her constituents. The alleviation of public concerns
is benign and cannot be used against a candidate. While we agree that nourishment is a legal
activity, we believe it is critical that it not be used to corrupt the election process. The
appellant was already a candidate for the legislature and had the legal right to assist the
people in his area. The election petition made no explicit claim that the money had been
placed by the appellant, albeit paragraph 8 said that on 28.5.1980, the appellant advised
Bagicha Singh that he (Bagicha Singh) need not worry about the expenditures involved.
There is no oral evidence to establish that the appellant was responsible for the deposit. There
is a presumption that the person in whose name the receipt was made out was the payer of the
money, and the burden was on him who wished to argue differently. In these circumstances, it
cannot be recognised that the appellant had deposited the expected demand with the Board's
authority. Once the charge that the appellant contributed Rs. 944 is dismissed, his taking up
Bagicha Singh's cause for early moving of the electric lines overhanging the first floor of his
residence would not constitute a bribe. In any case, the evidence on record is limited to
PW.12. Even if all of the evidence were accepted, it would not be enough to support the claim
of corrupt behaviour on this score.

Oral evidence, especially from a corrupted source, cannot serve as the only foundation for
proving corrupt activity.

As a result, the High Court erred in admitting the election petitioners' claim that the appellant
engaged in corrupt behaviour in order to get the votes of Bagicha Singh, members of his
family, and associates by having the overhanging electric lines removed. After all, if there is
any question, it must rule in favour of the appellant, who is facing a quasi-criminal
accusation.
41 | P a g e
  MAHMADUL HAQUE LASKAR V. STATE OF ASSAM AND ORS.49

Facts :-

The petitioner was elected to No. 10 Silchar Anchalik Panchayat from Berenga Gaon
Panchayat in the district of Cachar, Silchar, with the Silchar Anchalik Panchayat comprising a
total of 12 Gaon Panchayats. The second respondent, Deputy Commissioner. Cachar, Silchar,
issued a notification on 16-3-2002, under Rule 48 of the said Rules, informing all Silchar
Anchalik Panchayat members to be present on 30-3-2002, at the specified venue, namely, the
conference room of respondent No. 2, and at the specified time, namely, at 1 P. M., for the
purpose of taking oath as Anchalik Panchayat members and also electing, from among them,
President and Vice-President for Respondent No. 3 was authorised to undertake the required
proceeding by respondent No. 2 through this communication. Respondent No. 3 asked that
the elected members chose their President and Vice-President after the Anchalik Panchayat
members were legally sworn in on 30-3-2002.

The petitioner's name was then offered for the post of President, with both the proposer and
seconder being from the Bharatiya Janata Party (in short, "B. J. P"). Following that, the name
of responder No. 5 was presented as a contender for the post of President by the Indian
National Congress (abbreviated "Congress"). The respondent No. 3 then proceeded to hold an
election by ballot, but after counting the votes, it was discovered that both the petitioner and
respondent No. 5 had received six votes each. Because both of the aforementioned contenders
had received an equal number of votes, the respondent No. 3 decided to declare one of them
elected as President by tossing a coin in the presence of the candidates, as provided for in
Rule 45 of the said Rules. While the petitioner chose the head of the coin, respondent No. 5
chose the tail. When respondent No. 3 was about to toss the coin, reporters and photographers
from newspapers such as Dainlk Sonar Cachar and Jugasankha, as well as electronic media
such as CNN, Barak TV, Khoj Khabar, and Khabar Khabar, took positions to photograph the
proceedings, to which respondent No. 3 objected vehemently. The petitioner and Shri Ajit
Kumar Bhattacharjee, district President of the BJP, urged the respondent No. 3 to allow the
photographers to remain present and photograph the toss in order to eliminate any doubt
about the legitimacy, propriety, and/or transparency of the election, but the respondent No. 3
refused, despite the fact that some of the photographers had managed to stand in convenient
positions. According to Rule 45(1), before the toss, each candidate will be allocated one side
49
AIR 2003 Gau 71

42 | P a g e
of the coin, and the candidate whose side is visible at the top of the coin after it has
"FALLEN FLAT ON ANY GROUND OR TABLE." will be declared elected.

Respondent No. 3 threw the coin, but instead of letting it fall to the ground or on the table, he
grabbed it in his right hand while it was still in the air. The petitioner and Sri Ajit Kumar
Bhattacharjee, as well as many others present, could clearly see that the head of the coin was
visible at the top of the coin, but respondent No. 3 immediately placed his left hand over his
right hand, covering the coin, and turned it upside down, transferring the coin to his left hand
and reversing the coin's position. The petitioner, Sri Ajit Kumar Bhattacharjee, and their
followers were irritated by the respondent No. 3's partisan behaviour and protested by raising
their voices. The photographers did not pass up the opportunity to take photographs at that
point, demonstrating that the coin was on the left hand of responder No. 3. The image in
question was published in many publications, including Dainik Sonar Cachar. Such partisan
activity by responder No. 3, based on extraneous reasons visibly favouring the candidate
supported by the congress, resulted in widespread dissatisfaction, commotion, and chaos at
the site, when a significant number of people, including party activists and others, surged in.
Respondent No. 3 couldn't take the protests any longer and showed symptoms of fleeing
without declaring the outcome.

At this point, the aforementioned Shri Ajit Kumar Bhattacharjee pushed the respondent No. 3
in writing to make a decision. However, respondent No. 3 departed the site, but not before
writing on the stated written appeal of Shri Ajit Kumar Bhattacharjee, "Today, no judgement
will be made. In due time, the next line of action will be communicated to all parties involved
". Shri Ajit Kumar Bhattacharjee, District President of the BJP, then faxed a representation to
the Chief Secretary to the Government of Assam, copying the respondent No. 2 and the local
MLA, informing them of the respondent No. 3's improper, partisan, and illegal action and
requesting that the election be re-held because the respondent No. 3 had left the venue
without declaring the result. To their complete amazement, the respondent No. 2 proclaimed
the respondent No. 5 elected on the basis of the aforementioned coin tossing by the
respondent No. 3, despite the fact that the respondent No. 2 was not present at the time of the
coin tossing as detailed above. Inasmuch as Rule 45 mandates that the Deputy Commissioner
or the Sub-Divisional officer, as the case may be, or any officer authorised by him in this
behalf, shall decide which of the two candidates shall be declared elected by toss of a coin in
the presence of the candidates concerned, respondent No. 2 has no jurisdiction or authority

43 | P a g e
under the law to declare the result of the toss. As a consequence, the outcome of the said
election should have been communicated by respondent No. 3 before departing the said
yenue.

Extending on his previous point, Mr. Lahiri claims that Sections 129 (b) and 127 only apply
to 'direct' elections. According to Mr. Lahiri, the election of the president of Anchalik
Panchayat under Section 37 of the said Act is not a 'direct' election as referred to in Section
127, but rather an in-house arrangement to choose the leader of the house in a manner
analogous to the election of the Speaker and Deputy Speaker of Lok Sabha under Article 93,
and thus the present writ petition cannot be said to be barred by the provisions of the said Act.

It is further argued on behalf of the petitioner that S-127, under which the notice dated 30-9-
2000 forming the Panchayat Election Tribunal, Silchar, was issued, demonstrates that the
phrase 'election' is preceded by the word 'direct.' Thus, the word 'election' is qualified by the
word 'direct' in Section 127, according to Mr. Chaudhury, and this aspect of the matter cannot
be ignored, argues Mr. Chaudhury, because it is a settled principle of statutory interpretation
that any interpretation that brushes aside the word used in the statute as inappropriate or
surplusage is not fair, and that the Court should avoid interpreting the language of the statute
in such a way that renders a part of the statute

Issue :-

(i) whether Section 129 is ultra vires the Constitution of India and

(ii) whether Article 243O of the Constitution of India, introduced by way of 73rd

amendment of the Constitution, is ultra vires the proviso to Article 368(2) of the
Constitution, the same having not been ratified by requisite number of State
legislatures, are the momentous questions, which this writ petition has raised for
consideration by this Court.

Judgement :-

The decision in Amal Chandra Choudhury's case (supra) and I find that the subject matter in
Amal Chandra Choudhury's case (supra) was covered by Article 243O(a); whereas the
present writ petition raises a point of contention under Article 243O(b) inasmuch as the case
of Amal Chandra Choudhury (supra) relates to the reservation of office of President and Vice

44 | P a g e
The judgement in Amal Chandra Choudhury's case is limited to the circumstances of that
case, and it makes no determination about the breadth and ambit of Section 127 and/or
Section 129, or whether Section 129 should be read in conjunction with, or independently of,
the provisions of Section 127.

In light of the above, whatever position this Court takes on the subject matter of the current
case's issue, it has not been dealt with or determined in Amal Chandra Choudhuary's case.

Returning to the factual matrix of the current case, I would like to emphasise, if I may, that
the important facts, as stated in paragraphs 20 and 21, that led to the present writ petition
have not been disputed by any of the respondents. Under these circumstances, one has no
choice but to conclude, and I do so, that Respondent No. 3 failed to follow the process
outlined in Rule 45. (1).

Since, as previously stated, no expeditions or effective alternative remedies have been

prescribed by the State Legislature in the said Act for the resolution of disputes arising out of
'indirect' elections, a person aggrieved by indirect elections held under the said Act, such as
election to the offices of President and/or Vice-President of the Anchalik Panchayat, cannot
be denied the right to approach the High Court for appropriate reliefs under Article 226. In
other words, this Court has the authority to undertake judicial review in cases involving
disputes resulting from the "indirect" elections contemplated by the Act.

Because the respondent No. 3 violated the procedure prescribed under Rule 45(1), as
indicated above, the election of the respondent No. 5 as President of Silchar Anchalik
Panchayat cannot be sustained, and the notification, dated 31-3-2002, declaring the
respondent No. 5 elected to the office cannot be sustained.

As a consequence, and for the reasons stated above, this writ petition is granted. The
impugned order, dated 31-4-2002, declaring respondent No. 5 elected to the office of
President of No. 10 Silchar Anchalik Panchayat is hereby set aside and quashed, and the
respondent No. 2 is directed to hold an election for the office of President of No. 10 Silchar
Anchalik Panchayat within one month from today, and until the election is held as directed
and the result announced, the Vice President of the said Anchalik Panchayat

45 | P a g e
This writ petition will be decided in accordance with the given instructions. There is no
expense order.

 SMT. INDIRA GANDHI V. SHRI RAJ NARAIN50

Facts :-

In March 1971, Smt.Indira Nehru Gandhi was elected to the House of People from the Rae
Bareli Parliamentary Constituency. Her election was contested in an election petition filed
before the Allahabad High Court by one of her opposition candidates, Shri Raj Narain. The
High Court, in its decision and order dated 12.6.1975, granted the election petition and ruled
Smt. Indira Nehru Gandhi's election invalid. The High Court ruled that Smt. Gandhi had
solicited the assistance of Shri Yashpal Kapoor, a Gazetted Officer of the Government of
India, the District Magistrate and Superintendent of Police, Rae Bareli, the Executive
Engineer, PWD, and the Engineer, Hydel Department, for her election campaign, and had
thus engaged in corrupt practises in violation of Section 123 (7) of the Representation of the
People Act, 1951. Smt. Indira Nehru Gandhi filed the current appeal with the Supreme Court
after being dissatisfied with the ruling of the Allahabad High Court. Shri Raj Narain also filed
a cross-appeal. During the time that these appeals were pending, Parliament approved the
Election Laws (Amendment) Act of 1975. Several parts of the Representation of the People
Act, 1951 were altered retroactively by this Amendment Act. In addition, Parliament enacted
the Constitution (Thirty-ninth Amendment) Act of 1975. This Amendment Act added a new
Article 329-A to the Constitution, which states, among other things, that the election to
Parliament of a person who is Prime Minister or Speaker of the Lok Sabha at the time of such
election or is appointed as Prime Minister or Speaker after such election may be challenged
only before a specially prescribed authority [rather than the High Court under Article 329 (b)
of the Constitution]. Furthermore, by passing the Amendment Act, Parliament certified Smt.
Indira Nehru Gandhi's election. The legitimacy of the two Amending Acts listed above has
also been the topic of the current appeals. One of the arguments used to challenge the legality
of these Acts was that several members of Parliament were subjected to preventative custody
after the Proclamation of Emergency in June 1975, and therefore these Acts could not have
been voted by Parliament in their absence.

Held :-

50
AIR 1976 (2) SCR 347

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In the current appeals, the Supreme Court maintained the constitutionality of the Election
Laws (Amendment) Act, 1975, as well as the Constitution (Thirty-ninth Amendment) Act,
1975, save for the section of the latter Act in which Parliament approved Smt. Indira Nehru
Gandhi's election. Using the statute as revised retroactively by the aforementioned Election
Laws (Amendment) Act, 1975, the Supreme Court confirmed Smt. Indira Gandhi's election to
the House of People, accepting her appeal and dismissing Shri Raj Narain's cross-appeal.

Representation of the People Act (1951), Sections 123 (7), 79 (b) and 100 (1) (b) – Corrupt
practice – Obtaining or procuring assistance from Government servant – Corrupt practice
contemplated by S. 123 (7) cannot be committed BY any person before there is a 'candidate'
for an election – ‘Candidate’, meaning of Election Petition No. 5 of 1971. D/-12-6-1975
(All), Reversed.

It was determined that no corrupt practise could be said to have been committed vicariously
by the respondent as a result of anything done by K because he acted voluntarily, he was not
a Government servant after 14-1-1971, and the respondent was not a candidate before 1-2-
1971, the date of filing of her nomination. She just became a candidate on January 1, 1971.
Ele Petn No. 5 from 1971 D/- 12-6-1975 (All) Reversed.

In a contract-governed situation, neither the government nor the government servant is in a

worse position than an ordinary master or servant. In reality, Article 310 makes it explicit that
a Central Government servant's term of office is "during the pleasure of the President" in
such a circumstance. The President's satisfaction was conveyed in the notice dated 25-1-
1971, indicating that the President had accepted K's resignation with effect from the forenoon
of 14-1-1971. And this is exactly what he wanted. As a result, there is no issue in
acknowledging the accuracy of resignation effective from the date agreed upon by both
parties to the contact on patent facts. There were no rights of an innocent third party
implicated or impacted by such an acceptance of the resignation from the date immediately
after the day on which k offered his resignation.

That was also the day he stopped working and drawing a wage.

 Narayan Singh v Sunderlal Patwa51

the election of Sunderlal Patwa from Bhojpur Constituency was challenged, alleging a
‘corrupt practice’ in that the returned candidate had made systematic appeals on the ground of

51
 AIR 1993 MP 214

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religion, violating Section 123(3) of the Act. The election petition was dismissed. On appeal
at the Supreme Court, a constitution bench of 5 judges subsequently referred it to the larger
bench of 7 judges. Thereafter, when Abhiram Singh was taken up for consideration by the
Constitution bench, it was decided that it will be tagged along with the Sunderlal Patwa case,
on the limited question of interpretation of Section 123(3) of RPA Act. This is how the matter
came before a 7 judge bench of the Supreme Court.52

However, the key question before the 7 judge bench hinged on the interpretation of the word
‘his’ occurring in Section 123(3) of the Representation of the Peoples’ Act, 1951. The court
scrutinised if the words ‘his religion, race, caste, community or language’ appearing in
Section 123(3) also covers the religion, race caste or community of the candidate only or the
voter also.
The question before the court was the interpretation of pronoun ‘his’ under the section and if
it qualified only electoral candidates, or whether it qualified the voter as well. In simple
words, did the Section only cover statements such as “I am a Hindu, so vote for me” (positive
appeal on candidate’s identity) and “My opponent is a Muslim, do not vote for him”,
(Negative appeal on opponent’s identity) or did it include a broader range of appeals on basis
of voters religion (caste, language, community). The Court, by 4:3 majority, held that
appealing to the ascriptive identities of any candidate as well as the voters constitutes a
‘corrupt practice’ under Section 123(3).

CONCLUSION :-

52
https://www.scobserver.in/cases/abhiram-singh-cd-commachen-electoral-appeals-case-background/

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Political liberty and equality are linked to the notion of free and fair elections. Being 'Free
and Fair' in election concerns implies that no one involved in the political process is enslaved
or manipulated in any manner by another person. If elections are conducted illegally, the
people would lose faith in the electoral process and in democracy. As a result, free and fair
elections constitute the bedrock of a democratic system of governance.

Based on the above debate, I would like to submit the following recommendations for
holding fair elections:

(i) The Election Commission should not be primarily responsible for free and fair elections;
the government, as well as the voters, should be held accountable. People should be fully
informed of the situation. Such awareness workshops are available. It must be a collaborative
effort from all three parties.

(1) The Election Commission and its officials,

(2) Political candidates and parties

(3) the general public

(ii) Indian citizens should be aware not only of their right to vote, but also of their right to
vote freely and fairly, as well as of the serious implications of engaging in fraudulent election
activities. In addition, anybody who engages in corrupt activities or election offences shall
face harsh and immediate consequences.

(iii) In the current situation, the quantity of punishment, especially the amount of fine,
stipulated by the IPC is seen as exceedingly low. It is also believed that the punitive clauses
should be reconsidered in order to satisfy the expectations of the current voters, and some of
these offences need harsher penalty.

(iv) The Election Commissioner is responsible for ensuring that the model code of conduct is
observed.

SUGGESTIONS :-

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  The subclauses related to bribery and its prescribed punishment i.e Section 171B and
171E should be combined as one section for a better understanding.
 The offense of bribery shall be taken seriously and a relatively stringent punishment
must be prescribed for it as it certainly interferes, to a large extent, with a smooth and
fair election process.53

 The definition of undue influence is to be narrowed down and supposed to include

violent means of interfering with the free exercise of legal rights.

 The punishment for making false statements must be made more stringent as it may
have adverse impacts on the minds of people and the reputation of the candidate.
Instead of dismissing with a fine only, imprisonment for a period extending up to 2
years is suggested.

 Offences relating to elections need to be taken seriously and the punishment revised
to ensure a fair election procedure. Recommendations by the fifth law commission
need to be considered and changes made accordingly.

BIBLIOGRAPHY :-

53
https://blog.ipleaders.in/offences-relating-elections-ipc/ accessed on 22-10-2022 at 2:00 P.M.

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 1. www.manupatra.in
2. www.scc.in
3. www.westw.in
4. www.heinonline.in
5. https://www.advocatekhoj.com/
6. https://www.indiacode.nic.in/
7. http://www.sanchitha.ikm.in/node/511
8. https://www.acubeias.com/
9. https://www.casemine.com/search/in/123%284%29%2Brepresentation%2Bof
%2Bpeople%2Bact
10. www.lawmantra.co.in

BOOKS :-

 Indian Constitution law, MP JAIN, 7th Edition, Lexis Nexis

 Representation of the People Act, 1951, Universal’s Publication, 12 th
edition,2018
 The Constitution of India, P.M. Bakshi, 8th edition,2007
 Election Laws in India, Kuber Mahajan, 2020
 How India Votes–Election Laws, Practice and Procedure by V S Rama Devi
and S K Mendiratta,4th Edition, 2017.

ARTICLES :-

 Dr. M. Bhaskara Raju, ‘Indian Electoral System – Major Issues and Remedies’ (2015)
4 (11) IJR.
 Fair elections mean serious accountability, and some accounts, By Akshay Rout, ET
Bureau.
 Jayprakash Narayan, ‘Electoral and Political Party Reforms in India’.

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