An Analysis On The OIIences Relating To Elections NOVEMBER,2011

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RA1IV GANDHI NATIONAL UNIVERSITY OF LAW

PATIALA, PUN1AB.







PRO1ECT REPORT

AN ANALYSIS ON THE OFFENCES RELATING TO ELECTIONS
SUBMITTED IN THE PARTIAL FULFILMENT OF IX SEMESTER
AS REQUIREMENT OF FIFTH SEMESTER

Submitted to:
D7 Sachiv Kuma7
&
M7 Gu7neet Singh
Submitted By:
Subhap7ad Mohanty (242)
(Asst !7oI oI Law)
An Analysis On The OIIences Relating To Elections NOVEMBER,2011

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ACKNOWLEDGEMENT
The design, implementation and completion oI this study would have been impossible
without the help and cont7ibution oI the talented student body and Iaculty oI Rajiv Gandhi
National Unive7sity oI Law, !atiala, !unjab
I am 7eally g7ateIul to D7 Sachiv Kuma7 and M7 Gu7neet Singh Io7 thei7 continuous suppo7t
Io7 the p7oject, I7om initial advice and contacts in the ea7ly stages oI conceptual inception,
and th7ough ongoing advice and encou7agement to this day They we7e inst7umental in
conceptualization oI this study
Last but not least, I want to thank ou7 I7iends who app7eciate us Io7 ou7 wo7k and motivated
us
With Loving 7ega7ds and thanks to all, including those cont7ibuto7s whose names have not
been mentioned he7e

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TABLE OF CONTENTS
I ACKNOWLEDGEMENT.....................i
II TABLE OF CASES......................iii
III LIST OF CASES........................vii-viii
IV LIST OF ABBREVIATIONS....................ix-x
V REVIEW OF LITERATURE....................1-40
1 INTRODUCTION.........................1-4
11Meaning oI Elections......................1-2
12Democ7acy and Elections....................2-3
13C7iminalization oI !olitics....................3-4
2 CONSTITUTIONAL COMMITMENTS...............-11
21F7anchise in India.......................-6
22Right to know as a Fundamental Right...............6-7
23Constitutional Foundation oI F7ee and Fai7 Elections.........7-11
3 !ROVISIONS IN I!C, 1860....................12-17
31Ove7view oI Chapte7 IX A...................12-12
32Scope oI Chapte7 IX A.....................12-13
33Candidate and Electo7al Right..................13-13
34SpeciIic OIIences.......................13-17
4 !ROVISIONS IN RE!RESENTATION OF !EO!LE ACT, 191.....18-30
41Co77upt !7actices.......................18-22
42Electo7al OIIences.......................22-30
ELECTION COMMISSION ON ELECTORAL OFFENCES.......31-33
1Model Code oI Conduct....................31-32
2!7oposed Electo7al ReIo7ms..................32-33
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6 SUGGESTIONS.........................34-38
61Needed ReIo7m in I!C, 1860..................34-36
62Needed ReIo7m in R!A, 191.................36-38
7 CONCLUSION.........................39-40
8 BIBLIOGRA!........................41-42
REMARKS...........................43

























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TABLE OF CASES

S7 No Case Name !g No
1 A.P. Hill Leaders Conference v .A. Sangma, AIR 1977 SC 21.......9
2 Ankul Chandra Pradhan v &nion of India, AIR 1997 SC 2814........39
3 aburao Patel v r. Zakir Hussain, AIR 1968 SC9 04..........14
4 . Sanfeevaya v lection Tribunal, A.P. and others, AIR 1967 SC 1211....9
adasaheb attatraya Pawar v Pandurang Rao Jagtap, AIR 1978 SC
31...............................21
6 inesh Prasd Yadav v State of iha,r 199 Supp (1) SCC 340........1
7 r. Jagfit Singh v. Giani K. Singh, AIR 1966 SC 773............20
8 r. Ramesh Y. Prabhoo v Prabhakar K. Kunte, (1996) 1 SCC 130......19
brahim Suleman Sait v M.C. Mohammad, AIR 1980 SC 34........23
10lection Commission of India v &nion of India, (199) Supp (3) SCC 643...9
11Hari Jishnu Kamath v Ahmad Isaque, AIR 19 SC 233..........9
12Indira Nehru Gandhi v Raf Narain AIR 197 SC 2277.........10, 22
13K. Kamraf Nadar v Kunfu Thevar, AIR 198 SC 687............3
14Kanwar Lal Gupta v Amar Nath Chawla, AIR 197 SC 308.........21
1Kihoto Hollohon v Zachillu, AIR 1993 SC 412...............3
16KumaraNanda v rif Mohan Lal Sharma AIR 1967 SC 808.........16
17Mast Ram v State of Punfab, (199) Supp 2 SCC 744............17
18Mohan Singh v hanwarlal, AIR 1964 SC 1366..............14
19Mohd Kadir Sheriff v Rahmatullah, AIR 1940 Mad 230...........16
20Mohinder Singh Gill v Chief lection Commissioner, AIR 1978 SC
81...........................2, 8, 9, 11
21N.. Khare v C, AIR 197 SC 694...................9
22N.P. Punnuswami v Returning Officer, AIR 192 SC 64..........1, 9
23Narayanaswamy Naicker v evarafa Mudaliar, AlR 1936 Mad 316......16
24Pantam Jenkayya v mperar, AlR 1930 Mad 246.............16
2Parthasarathi v Ramachandra Rao, AIR 196 A! 6...........1
26Rafendra Prasad Jain v Sheel hadra Yafee, AIR 1967 SC 144.......18
27Ram ial v Sant Lal, AIR 199 SC 8.................14
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28Rameshwar v State, AIR 197 !at 22.................23

29S Khader v Munuswami, AIR 19 SC 77...............13
30SR Bomai v Union oI India, Ai7 1994 SC 1918..............
31Sashi hushan v. alraf Madhok, AIR 1972 SC 121, at p 126.......24
32Sharma v .R. Mandal, AIR 197 M! 122................2
33Shiv Kripal Singh v JJ Giri, AIR 1970 SC 2097.............14
34State of Gufarat v Chandulal hikala,l AIR 196 Guj 83, (196) C7 U 440
(Guj).............................1, 16
3State of Orissa v Gokularick, AIR 199 O7i 97.............16
36.Trilochan Singh v Karnail Singh, AIR 1968 !unj 416, ...........14
37&nion of India v Association of emocratic Reforms, (2202) SCC
294..............................6, 10
38J.J. Giri v .S. ora, AIR 199 SC 1318................4

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LIST OF ABBREVIATIONS
S7 No Abb7eviation Expansion
1 & And
2 AIR All India Repo7te7
3 An7 Anothe7s
4

A!
A7t
Andh7a !7adesh
A7ticle
6 Bom Bombay
7 Comm7 Commissione7
8 Co Company
9 C7i C7iminal
10
11
Raj
ed
Rajasthan
Edition
12
13
Govt
ie
Gove7nment
That
14 Ltd Limited
1 O7g O7ganization
16 O7s Othe7s
17 p !age
18
20
pp
R!A
!ages
Rep7esentation oI
people`s Act
20 sec Section
21 SC Sup7eme Cou7t
22 SCC Sup7eme Cou7t Cases
23 SCJ Sup7eme Cou7t Jou7nal
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24 SCR Sup7eme Cou7t Repo7t
2 supp Supplement
26
27
A7t
TN
A7t
Tamil Nadu
28 UOI Union oI India
29 U! Utta7 !7adesh
30

v

Ve7sus
31 Vol Volume
32 WB West Bengal
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CHAPTER I
INTRODUCTION

..Object and Purpose of Writing the Project
The topic oI the p7esent p7oject, i.e. C7itical study oI OIIences Relating to Elections is oI
g7eat signiIicance in a democ7atic count7y like India F7ee and Fai7 Elections a7e the basis Io7
subsistence oI Democ7acy; howeve7 Electo7al oIIences have been a g7eat hind7ance in the
wo7king oI Indian Democ7acy The p7esent p7ojectis w7itten with the object oI enhancing the
knowledge on the subject 7elated laws in India along with an attempt to b7ing about the
weaknesses and deIects in such laws In the end the some oI the suggestion a7e given which
may cont7ibute in imp7oving the conce7ned law on the subject Thus the pu7pose oI the study
is twoIold, ie enhancing the knowledge on the subject I7om academic point oI view as well
analyzing the law so as to p7ovide some p7actical solutions Io7 7eIo7ms
.2. Significance of Study Undertaken
The Topic oI the p7esent p7oject ie C7itical Study oI OIIences Relating to Elections is ve7y
signiIicant in itselI and it becomes all the mo7e signiIicant in a count7y like India, which is
inIact the la7gest democ7acy oI the wo7ld F7ee and Fai7 Elections a7e the pa7t and pa7cel oI
eve7y democ7acy and a7e essential to maintain the t7ue spi7it oI a democ7acy oweve7, the
electo7al oIIences have always been a g7eat hind7ance in the successIul Iunctioning oI Indian
Democ7acy Thus, the study unde7taken in the p7esent p7oject is oI g7eat signiIicance as it
7elates to one oI the common but c7ucial aspect oI democ7acy Mo7eove7, the study is
signiIicant, in so Ia7 as, the laws conce7ning the subject have been analyzed I7om p7actical
view point
The p7oject is an attempt to add7ess the Iollowing issues:-
1 What a7e elections and its impo7tance in democ7atic setup?
2 What a7e Electo7al oIIences and what is c7iminalization oI politics?
3 What a7e the 7emedies p7ovided in the Indian !enal Code 1860 and R!A, 191?
4 What 7eIo7ms a7e 7equi7ed to cu7b the menace oI Electo7al oIIences?

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.3. Research Methodology

The 7esea7ch methodology used is doct7inal which is based on seconda7y data Mo7eove7,
analytical app7oach has been adopted Io7 the study The study is basically based on the
p7ovisions oI Indian Penal Code 1860 and the Representation of People Act, 191
inte7p7etation oI these p7inciples in va7ious books, commenta7ies, A7ticles and jou7nals
.4. Meaning of Election
The wo7d Election implies pe7sons who a7e to elect (called the electo7s), the oIIice to which
election is to be made and the pe7son who is to be elected (called the candidate)
1
B7oadly
speaking it means an oppo7tunity Io7 vote7s to hold elected oIIicials accountable Io7 thei7
actions o7 to choose between competing candidates o7 thei7 policies
2
When a pe7son is
nominated by way oI selection on the basis oI the given c7ite7ia I7o amongst seve7al pe7sons,
then in the b7oade7 sense, he is elected to the oIIice
3
Election is a method Io7 d7awing public
opinion !ublic opinion is supposed to be the sou7ce oI and guide to know what public
oIIicial o7 political leade7s do The democ7atic system 7equi7es that election contestants
should consult the public and should t7y to Iollow its mandate So, election is a means oI
telling to an elected oIIicial whethe7 he has 7eceived a mandate I7om the people Io7 his
policies Thus, election play a key 7ole in a democ7atic polity, it gives mandate to elected
membe7s Io7 Io7ming the gove7nment, on obtaining thei7 majo7ity, cont7ol the gove7nment,
asce7tain public opinion on va7ious issues and choose law-make7s pe7iodically
Acco7ding to Webste7`s Dictiona7y election means the act o7 p7ocess oI choosing a pe7son Io7
an oIIice, position o7 membe7ship by voting Encyclopedia B7itannica deIines elections as the
means oI making political choice by voting They a7e used in the selection oI leade7s and in
the dete7mination oI issues
4
In the Rep7esentation oI !eople Act, 191 Election has been
deIined as an election to Iill a seat o7 seats in eithe7 ouse oI !a7liament o7 in the ouse o7
eithe7 ouse oI the Legislatu7e oI a State

1
Abhinav !7akash, Law Relating to lections, Unive7sal Law !ublishing Co!vt Ltd, New Delhi, 2006, at p 6
2
B7yce, Modern emocracies (1921), Vol II, p 9, see, Anand Ballabh KaIaltiya, emocracy and lectionLaws,
Deep and Deep !ublications (!) Ltd, New Delhi, 1st ed 2003 at p43
3
inesh Prasd Yadav v State of ihar, 199 Supp (1) SCC 340
4
1
th
ed 1974, p 27

Sec 2(d), Rep7esentation oI !eople Act, 191

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In the Constitution oI India the te7m 'election is not deIined oweve7, in Punnuswami v
Returning Officer,
6
the Sup7eme Cou7t while inte7p7eting the p7ovisions oI !a7t XV oI the
Constitution which deals with elections held that the wo7d election` has by long usage in
connection with the p7ocess oI selection oI p7ope7 7ep7esentation in democ7atic institutions,
acqui7ed both a wide and a na77ow meaning In the na77ow sense` it is used to mean that Iinal
selection which may emb7ace the 7esult oI the poll when the7e is polling o7 a pa7ticula7
candidate being 7etu7ned unopposed when the7e is no poll In the wide sense, the wo7d is used
to connote the enti7e p7ocess culminating in a candidate being decla7ed elected Justice Fajal
Ali in this case clea7ly stated that
'It seems to me that the world election has been used in Part XJ of the Constitution in the
wide sense, that is to say, to connote the entire procedure to be gone through to return a
candidate to the legislature. The use of the expression 'Conduct of elections` in Art. 324
specifically points to the wide meaning and that meaning can also be read consistently into
other provisions which occur in Part XJ including Art. 329(b).`
7

In Mohinder Singh Gill v Chief lection Commissioner,
8
Justice K7ishna Iye7 Iu7the7
cla7iIied the te7m election` and held:
'lection covers the entire process from the issuance of the notification under Section 14 of
the Representation of the People Act, 1951 to the declaration of result under Section 66 of the
Act. ven when a poll that has already been taken place has been cancelled and a fresh poll
has been ordered, or lection Commission amends its notification and extends time for
completion of the election, it is an order during the course of election. ven if it is a wrong
order it cannot be questioned during the process. If during the process of election at an
intermediate or final stage, the entire poll has wrongly cancelled and a fresh poll has been
wrongly ordered, that is a matter which may be agitated after declaration of the result on the
basis of fresh poll, by questioning the election in the appropriate form by means of an
election petition.`
9

The 7eason giving a wide meaning to the te7m election` is plena7y aving 7ega7d to the
impo7tant Iunctions which the legislatu7e has to pe7Io7m in democ7atic count7ies, it has
always been 7ecognized to be a matte7 oI Ii7st impo7tance that elections should be concluded

6
AIR 192 SC 64
7
Ibid, at p 67-68
8
AIR 1978 SC 81
9
Ibid, at p 894
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as ea7ly as possible acco7ding to time schedule and all cont7ove7sies and all disputes a7ising
out oI election should be postponed till the elections a7e ove7, so that the election p7oceedings
may not be unduly 7eta7ded o7 p7ot7acted
10

.5. Elections in Democracy
In a living democ7acy, the conIe7ment oI gua7anteed Iundamental and othe7 7ights to the
people is essential The7e a7e ce7tain I7eedoms which a7e essential Io7 the p7ope7 Iunctioning
oI a democ7acy The7eIo7e, it is in the inte7est oI the State that these I7eedoms a7e p7otected
To ensu7e this, eve7y citizen in a democ7acy must be I7ee to vote and his vote must count and
be oI value ence, the 7ight to vote must be p7otected and Io7 this pu7pose a democ7atic
gove7nment must develop just systems oI 7ep7esentation
Elections to the Legislatu7e a7e not p7ivate aIIai7s oI the contestants They a7e matte7s oI
public inte7est and oI national impo7tance
11
Eve7y citizen has a stake in legislative elections,
Io7 his social and economic well-being depends upon the p7omises and the pe7Io7mance oI
the Legislatu7es Democ7acy needs pa7ticipation oI the people in the gove7nance oI the
count7y and this pa7ticipation is possible only when eve7y qualiIied citizen is given the 7ight
oI I7anchise to enable him to elect the 7ep7esentative oI his choice to the Legislatu7e
The7eIo7e, no 7ight is mo7e p7ecious in a I7ee count7y than that oI having a choice in the
election oI those who make laws unde7 which the people live Othe7 7ights even the most
basic become illuso7y iI the 7ight to vote is unde7mined
12
oweve7, Io7 the successIul
Iunctioning oI democ7acy the aspect oI I7ee and Iai7 elections is equally impo7tant like
unive7sal suII7age
.6. Criminalization of Politics
Though F7ee and Iai7 Elections is the basis oI Democ7acy and pa7t oI basic st7uctu7e oI
Constitution,
13
but ove7 the past Iew yea7s we have been 7eading about co77uption public liIe
in which politicians and oIIicials have bled the nation Iilling thei7 own coIIe7s, dive7ted to
pe7sonal use !ublic Iunds have been misapp7op7iated and have dest7oyed the mo7al and
ethical envi7onment oI the nation Co77uption has become the no7m in public liIe and honesty
an abe77ation Co77uption is an institution and it is inbuilt in the socio-economic-cultu7al and

10
Sharma v .R. Mandal, AIR 197 M! 122
11
K. Kamraf Nadar v Kunfu Thevar,, AIR 198 SC 687
12
The on,ble Si7 John Laws; Law and emocracy (199), !ublic Law, 74, see, Anand Ballabh KaIaltiya,
emocracy and lection Laws, Deep and Deep !ublications (!) Ltd, New Delhi, 1st ed 2003 at p36
13
Kihoto Hollohon v Zachillu, AIR 1993 SC 412
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political st7uctu7e oI society and nation

14
Daily in the news pape7s, the7e a7e 7epo7ts about
the politicians who have eithe7 di7ectly pa7ticipated in c7imes o7 have allegedly been guilty oI
abetting such activities th7ough gangste7s, musclemen and unde7wo7ld dons Co77uption in
public liIe and c7iminalization oI politics a7e two sides oI the same coin In the ea7ly days
c7iminal elements we7e by and la7ge kept away I7om di7ect involvement in the political
p7ocess, but today they have acqui7ed a political base oI thei7 own Since it is the 7each oI
powe7 that dete7mines the deg7ee oI immunity, pe7sons with c7iminal antecedents have Iound
a way to Ioist themselves on the Legislatu7e
1
It is well known that all pa7ties take the help oI
c7iminal elements to dominate the election scene in India,
16
and thus oIIences 7elating to
elections have been 7epeatedly shaking the democ7atic 7oots oI the count7y
.7. Chapterization Plan
CHAPTER I is dealing with the gene7al int7oduction to the topic It discusses the concept oI
elections and c7iminalization oI politics
CHAPTER II deals with constitutional p7ovisions 7ega7ding elections It discusses va7ious
a7ticles oI constitution which includes election commission and pa7t XXV oI constitution
CHAPTER III deals with !enal p7ovisions 7ega7ding electo7al oIIences In this chapte7
section 171 oI Indian !enal Code is discussed which includes oIIences like b7ibe7y etc
CHAPTER IV deals with p7ovisions oI Rep7esentation oI people`s Act In this chapte7
oIIences oI Booth Captu7ing and othe7 oIIences a7e explained
CHAPTER V deals with p7ovision oI wo7king oI the Election Commission and the
suggestions and 7eIo7ms given by them to cu7b electo7al oIIences
CHAPTER VI deals with Suggestions and 7eIo7ms to cu7b the malp7actices that have c7ept
in the p7ocess oI elections
CHAPTER VII contains Conclusion which sums up the whole p7oject and p7ovide solutions
to lacunas which a7e unp7ovided Io7

14
! Rathnaswamy, lectoral Reforms. Law and Institutions of India and orld, Book Well, New Delhi, 2004,
at p 93
1
Anand Ballabh KaIaltiya, emocracy and lection Laws, Deep and Deep !ublications (!) Ltd, New Delhi,
1st ed 2003 at p344
16
http://wwwlegalse7viceindiacom/A7t/l290-C7iminalization-oI-!oliticshtml, accessed on Septembe7 7, 20-
11
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CHAPTER II
CONSTITUTIONAL COMMITMENTS
The !7eamble to the Constitution decla7es India to be a Democ7atic Republic Democ7acy is
the basic Ieatu7e oI the Indian Constitution,
17
which is sustained by I7ee and Iai7 elections
Only I7ee and Iai7 elections to the va7ious legislative bodies in the count7y can gua7antee the
g7owth oI a democ7atic polity It is the che7ished p7ivilege oI a citizen to pa7ticipate in the
electo7al p7ocesses which place pe7sons in the seats oI powe7 India has been cha7acte7ized as
the biggest democ7acy in the wo7ld because oI the colossal natu7e oI the elections held in the
count7y
18
At a gene7al election, an electo7ate oI millions goes the polls to elect membe7s Io7
the Lok Sabha, State Legislative Assemblies, and the Legislatu7es oI the Union Te77ito7ies
F7ee and Iai7 election has been held to be a basic Ieatu7e oI the Constitution
19

2.. Franchise in India
A Iew Iundamental p7inciples unde7lie elections to the Lok Sabha and the State Legislative
Assemblies These p7inciples a7e stated as Iollows:
O The7e is one gene7al electo7al 7oll Io7 eve7y te77ito7ial constituency
20

O No pe7son is ineligible Io7 inclusion in the electo7al 7oll on the g7ounds only oI
7eligion, 7ace, caste, sex o7 any oI them
21
Equality has thus been acco7ded to each
citizen in the matte7 oI I7anchise and the electo7al 7oll is p7epa7ed on a secula7 basis
22

O No pe7son can claim to be included in any special electo7al 7oll Io7 any constituency
on g7ounds only oI 7eligion, 7ace, caste, sex o7 any oI them
23
The p7inciple
unde7lying this p7ovision is Iu7the7 Io7tiIied by A7t 1
24

O Elections a7e held on the basis oI adult suII7age, that is to say, eve7y pe7son who is
4 A citizen oI India,
4 Not less than 18 yea7s oI age on a date p7esc7ibed by the Legislatu7e,
4 Not othe7wise disqualiIied unde7 the Constitution, o7 any law made by the
Legislatu7e, on the g7ound oI non-7esidence, unsoundness oI mind, c7ime,

17
S.R. omai v &nion of India, Ai7 1994 SC 1918
18
M! Jain, Indian Constitutional Law, Wadhwa and Company Nagpu7, New Delhi, 2003, at p 803
19
Kihoto Hollohon v Zachillu, AIR 1993 SC 412
20
A7t 32, Constitution oI India
21
ibid
22
J.J. Giri v .S. ora, AIR 199 SC 1318
23
A7t 32, Constitution oI India
24
Absense oI Disc7imination
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co77upt o7 illegal p7actice, is entitled to be 7egiste7ed as a vote7 at any such

election
2

2.2. Right to Know as a Fundamental Right
The 7ight to know antecedents, including the c7iminal past, o7 assets oI candidates is a
Iundamental 7ight unde7 A7t 19(1) (a)
26
oI the Constitution and that the inIo7mation is
Iundamental Io7 su7vival oI democ7acy Sup7eme Cou7t has di7ected
27
the Election
Commission to call Io7 inIo7mation on aIIidavit I7om each candidate seeking election to
!a7liament o7 the State Legislatu7e as a necessa7y pa7t oI the nomination pape7s on:
O Whethe7 the candidate has been convicted / acquitted / discha7ged oI any c7iminal
oIIence in the past - iI any,
O Whethe7 the candidate was accused in any pending case oI any oIIence punishable
with imp7isonment Io7 two yea7s o7 mo7e, and in which cha7ge was I7amed o7
cognizance taken by the cou7t oI law II so, 7equi7es the details the7eoI;
O The assets (immovable, movable, bank balance, etc) oI a candidate and oI his/he7
spouse and that oI the dependents;
O liabilities, iI any, pa7ticula7ly oI any ove7due oI any public Iinancial institution o7
Gove7nment dues;
O Educational qualiIications oI the candidate
The Right to InIo7mation Act 200 is a histo7ical Act that makes Gove7nment oIIicials liable
Io7 punishment iI they Iail to 7espond to people within a stipulated timeI7ame Many public
se7vants a7e leading luxu7ious liIestyles, beyond the legal sou7ces oI thei7 income
28
Many
public se7vants a7e Iiling Ialse aIIidavits about thei7 annual income, wealth details to Election
Commission oI India / Vigilance Commission / othe7 autho7ities, as the case may be These
autho7ities a7e not p7ope7ly ve7iIying these aIIidavits Many scams, scandals a7e coming to
light day in & day out; politicians a7e accusing each othe7 oI involvement in scams Whe7eas,
the said autho7ities a7e keeping mum, as iI those aIIidavits Iiled by tainted public se7vants a7e
t7ue The tainted public se7vants a7e not even p7oviding Iull, 7ight inIo7mation to public as pe7
RTI Act, lest the t7uth come out

2
A7t 326, Constitution oI India
26
F7eedom oI Speech and Exp7ession
27
&nion of India v Association of emocratic Reform,s (2002) SCC 294
28
http://wwwlegalse7viceindiacom/A7t/l290-C7iminalization-oI-!oliticshtml, accessed on, Septembe7 13,
2011
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Right to Know is an inhe7ent att7ibute oI eve7y pe7son It is a basic 7ight oI citizens oI I7ee
count7y and A7t 19 (1) (a) p7otects this 7ight The 7ight to 7eceive inIo7mation sp7ings I7om
the 7ight gua7anteed unde7 19 (1) (a)
29
Right to know diIIe7s only in one sense with 7ight to
inIo7mation Right to know is a natu7al 7ight and 7ight to inIo7mation is a p7ovision given by
gove7nment to its people Natu7al 7ights do not have any value legally until they a7e legally
conside7ed ence 7ight to know as such implied in the I7eedom oI speech and exp7ession
which is a legally conside7ed 7ight must have to be given a special value Right to
inIo7mation as such will b7ing t7anspa7ency oI the gove7nment activities and allow the people
to Iind 7emedies Io7 those things by which they suIIe7ed
2.3.Constitutional Foundation of Free and Fair Elections
A democ7atic gove7nment is the outcome oI elections conducted acco7ding to the standa7d o7
p7inciples oI Iai7ness and impa7tiality ence, the no7mal p7actice, pa7ticula7ly in democ7atic
count7ies, is to inco7po7ate p7ovisions Io7 ensu7ing I7ee and Iai7 elections in the Constitution
itselI Othe7 elabo7ate p7ovisions 7elating to elections howeve7, may be inco7po7ated in
va7ious statutes
!a7t XV
30
oI the Constitution oI India lays down the basic p7ovisions 7ega7ding elections
While the Constitution itselI p7ovides the p7ocedu7e Io7 the election oI the !7esident
31
and the
Vice !7esident,
32
the p7ocedu7e Io7 election to legislatu7es oI the Union and the States is leIt
to the legislation made by !a7liament o7 the State Legislatu7e oweve7, ce7tain basic
p7inciples oI I7ee and Iai7 elections a7e inco7po7ated in the Constitution itselI Seve7al A7ts in
the constitution speciIically conIe7 legislative powe7 on !a7liament Thus, A7t 82
33

empowe7s !a7liament to dete7mine by law the manne7 in which and the autho7ity by which
each State is to be divided into te77ito7ial constituencies aIte7 each census Io7 pu7pose oI
election to Lok Sabha and State Assemblies
2.3.1 Universal Adult Suffrage
Adult SuII7age o7 equal 7ight to vote is a basic p7inciple oI I7ee and Iai7 elections A I7ee and
Iai7 election based on unive7sal adult I7anchise is the basic: the 7egulato7y p7ocedu7e vis-a-vis
the 7eposito7ies oI Iunctions and the dist7ibution oI legislative, executive and judicative 7oles

29
M! Jain, Indian Constitutional Law, Wadhwa and Company Nagpu7, New Delhi, 2003, at p 988
30
Elections, (A7ts 324-329)
31
A7t 4, , Constitution oI India, 190
32
A7t 66, ibid
33
Readjustment aIte7 each census
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in the total scheme, di7ected towa7ds holding oI I7ee elections a7e the speciIics
34
A7t 32
3

and 326
36
oI the Constitution constitute a complete code which contains the Iollowing
speciIic elements:
O Gene7al Electo7al Roll
O Equal Right to Vote
O Apathy in !a7ticipation
O Equality oI Constituencies
O Gene7al Right to Contest
O Sec7ecy oI Ballot
The Iounding Iathe7s int7oduced unive7sal adult suII7age in the Constitution as an inst7ument
oI social enginee7ing and nation-building But it is a sad that the adult suII7age has not
achieved what it was intended Io7 Ou7 expe7ience shows that many social g7oups` p7ecisely
unawa7e oI thei7 st7ength beIo7e independence, now have 7ealised that they a7e in a position
to wield powe7 Castism, communalism have been I7equently used Io7 building secta7ian vote
banks Io7 getting to powe7 o7 7emaining in powe7 This tendency which the Constitution
desi7ed to eliminate has been p7og7essively on an inc7ease
37
This has also given 7ise to
7egional splinte7 pa7ties This has posed a dange7 to the unity and integ7ity oI India
2.3.2 Election Commission- A constitutional Body
The Election Commission is the only Constitutional autho7ity Io7 the supe7intendence,
cont7ol, di7ection and conduct oI all elections to the legislative bodies in the count7y
38
In
discha7ge oI its Constitutional Iunctions and obligations the Election Commission has to pass
o7de7s, give di7ections and take app7op7iate decisions unde7 A7t 324 oI the Constitution and
the law made by the app7op7iate Legislatu7e Gene7ally, a w7it can be issued against any-
body having legal autho7ity to dete7mine questions aIIecting the 7ights oI the subjects A7t
226 is designed to ensu7e that each and eve7y autho7ity in the State including the Gove7nment
must act bonaIide and within the limits oI its powe7 and when the Cou7t is satisIied that the7e

34
Mohinder Singh Gill v CC, AIR 1978 SC 81, at p 89-60
3
No pe7son to be ineligible Io7 inclusion in, o7 to be claim to be included in a special, electo7al 7oll on g7ounds
oI 7eligion, 7ace, caste o7 sex
36
Elections to the opuse oI !eople and to the Legislative Assemblies oI State to be on the basis oI Adult
SuII7age
37
Anand Ballabh KaIaltiya, emocracy and lection Laws, Deep and Deep !ublications (!) Ltd, New Delhi,
1st ed 2003 at p 1
38
A7t 324 oI the Constitution, 190
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is an abuse o7 misuse oI powe7 o7 an e77o7 oI ju7isdiction, it is incumbent on the igh Cou7t

to aIIo7d justice to the individual o7 aIIected pa7ty But in case oI Election Commission, the
I7ame7s oI the Constitution t7usted the Election Commission that it would conduct I7ee and
Iai7 elections independently, impa7tially and expediously The7eIo7e, du7ing the p7ocess oI
election, the whole things a7e in the hands oI the Commission and no outside inte77uption is
allowed A7t 329(b) imposes a blanket ban on judicia7y and this ba7 against judicial
inte7vention applies aIte7 notiIication oI elections till the decla7ation oI 7esult oI election This
position oI law is well settled by a numbe7 oI landma7k decisions oI the Sup7eme Cou7t
39

Thus, the7e is no scope Io7 judicial inte7vention against any action taken by the Election
Commission du7ing the p7ocess oI elections
oweve7, the7e a7e ce7tain limitations on the powe7s oI the Election Commission,
40
which the
Commission has to wo7k within the I7amewo7k oI A7t 324 oI the Constitution and subject to
the mandato7y p7ovisions oI the constitutional law and statuto7y 7ules and a Cou7t can
inte7Ie7e iI those p7ovisions a7e violated Fo7 ce7tain pu7poses the Commission is a quasi-
judicial autho7ity o7 a t7ibunal,
41
and 7esponsible Io7 obse7vance oI p7inciples oI natu7al
justice The o7de7s oI the Election Commission a7e subject to judicial 7eview in all such cases
when its decisions o7 di7ections a7e e77oneous, unIai7 o7 un7easonable and a7bit7a7y o7 against
the law oI the land, and a7e without ju7isdiction unde7 the Constitutional democ7acy is above
the law
42
But the Cou7ts cannot command the Election Commission to do a pa7ticula7 duty in
a pa7ticula7 manne7 o7 to act unde7 a pa7ticula7 law
43
Such di7ections oI the Cou7ts would be
against the p7inciple oI independence oI the autho7ity established Io7 the pu7pose oI
conducting I7ee and peaceIul polls unde7 the Constitution Any decision sought o7 tended will
not amount to calling in question an election iI it subse7ves the p7og7ess oI the election and
Iacilitates the completion oI the election Thus, the Cou7ts can inte7Ie7e iI the petition is
me7ely to co77ect o7 smoothen the p7og7ess oI election p7oceedings
Also, when !a7liament o7 state Legislatu7e has made a valid law 7elating to o7 in connection
with elections, Commission is 7equi7ed to act in conIo7mity with the these p7ovisions In

39
N.P. Punnuswami v Returning Officer, AIR 192 SC 64, Hari Jishnu Kamath v Ahmad Isaque, AIR 19
SC 233, N.. Khare v C, AIR 197 SC 694, Mohinder Singh Gill v CC, AIR 1978 SC 81
40
Mohinder Singh Gill v CC, AIR 1978 SC 81
41
A.P. Hill Leaders Conference v .A. Sangma, AIR 1977 SC 21
42
Anand Ballabh KaIaltiya, emocracy and lection Laws, Deep and Deep !ublications (!) Ltd, New Delhi,
1st ed 2003 at p88
43
. Sanfeevaya v lection Tribunal, A.P. and others, AIR 1967 SC 1211; lection Commission of India v
&nion of India, (199) Supp (3) SCC 643
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whe7e law is silent, A7t 324 is a 7ese7voi7 oI powe7 to act Io7 the avowed pu7pose oI having
I7ee and Iai7 election The Constitution has taken ca7e oI leaving scope Io7 exe7cise oI
7esidua7y powe7 by the Commission in its own 7ight as a c7eatu7e oI the Constitution in the
inIinite va7iety oI situations that may eme7ge Io7m time to time in a la7ge democ7acy, as
eve7y contingency could not be Io7eseen o7 anticipated by the enacted laws o7 the 7ules By
issuing necessa7y di7ections, the Commission can Iill the vacuum till the7e is legis1ation on
the subject
44

To maintain the pu7ity oI elections and in pa7ticula7 to b7ing t7anspa7ency the p7ocess oI
election, the Commission can ask the candidates about the expenditu7e incu77ed by the
political pa7ties and this t7anspa7ency in the p7ocess oI election would include t7anspa7ency oI
a candidate who seeks election o7 7e-election In a democ7acy, the electo7al p7ocess has a
st7ategic 7ole The little man oI this count7y would have basic elementa7y 7ight to know Iull
pa7ticula7s oI a candidate who is to 7ep7esent him in !a7liament whe7e laws to bind his libe7ty
and p7ope7ty may be enacted
4

2.3.3 1udicial Review of Elections
A judicial t7ibunal o7 Cou7t to deal with the disputes a7ising out oI elections is, an impo7tant
7equisite oI I7ee and Iai7 elections Thus, election laws must contain a p7ovision Io7 7esolving
disputes by judicial app7oach The object oI such p7ovision is to enIo7ce the law made Io7
i77adicating the mal-p7actices in elections and to punish the pe7son who deviates I7om the
p7esc7ibed 7ules To put a stamp oI validity on an election oI a candidate by saying that the
challenge to such an election would not be gove7ned by any election law and the said election
in any case would be valid and immune I7om any challenge 7uns counte7 to the accepted
no7ms oI I7ee and Iai7 elections
46
The election disputes have to be 7esolved by an autho7ity
having powe7 oI judicial 7eview Majo7ity view in Indira Nehru Gandhi v Raf Narain
47
was
that the legislatu7e cannot assume this 7ole upon itselI
Constitution oI India p7ovides judicial 7eview oI gove7nmental actions, both legislative and
executive, which can be availed th7ough app7op7iate w7it petitions to igh Cou7ts
48
and the

44
Abhinav !7akash, Law Relating to lections, Unive7sal Law !ublishing Co!vt Ltd, New Delhi, 2006, at p
3
4
&nion of India v Association for emocratic Reforms, (2002) SCC 294
46
A7t 329 A, held 7epugnant to the p7inciples oI F7ee and Fai7 Elections and 7epealed
47
AIR 197 SC 2277
48
A7t 226, Constitution oI India
An Analysis On The OIIences Relating To Elections NOVEMBER,2011

2 !7oject Repo7t

Sup7eme Cou7t
49
But the7e is a ba7 against the inte7Ie7ence by cou7ts in electo7al matte7s
A7t 329(b)
0
is a blanket ba7 on legal p7oceedings to challenge electo7al steps taken by the
electo7al machine7y Io7 ca77ying Io7wa7d the p7ocess oI election and the only 7emedy to
challenge such steps on the basis oI illegality, is an election petition to be p7esented aIte7 the
elections a7e ove7 Even iI a petitione7 seeks any 7emedy which would not be available in the
election petition, a petition unde7 A7t 226 might be possible only aIte7 the completion oI the
election
1

The p7inciple oI obse7vance oI 7est7aint`
2
is indeed a vital Iacto7 in the a7ea oI election law,
because constitutionally, elections can not be cu7tailed o7 vitiated on each and eve7y stage
and the7eIo7e, the law is exhaustive to deal with complaints oI malp7actices,
3
co77upt
p7actices
4
o7 illegality and Io7 thei7 7ectiIication II du7ing the election campaign o7 the
actual poll itselI, any i77egula7ity o7 illegality is committed by o7 on behalI oI any candidate,
the Acts, Rules and guidelines make suIIicient p7ovisions and p7ovide machine7y Io7
7ectiIication oI complaints

Mo7eove7, since the supe7intendence and cont7ol oI elections

7ight I7om the p7epa7ation oI electo7al 7olls upto its culmination is ent7usted to an independent
and impa7tial body, who is invested with wide powe7s unde7 the Constitution and law made
the7eunde7, a p7esumption is always in Iavou7 oI I7ee and Iai7 elections as Election
Commission is also bound by the p7ovisions oI the constitution


49
A7t 32, Constitution oI India
0
No election to eithe7 house oI the pa7liament o7 to the eithe7 house oI the legislatu7e oI a state shall be called
in question except by an election petition p7esented to such autho7ity and in such manne7 as may be p7ovided Io7
by o7 unde7 any law made by app7op7iate legislatu7e
1
Mohinder Singh Gill v Chief lection Commissioner, AIR 1978 SC 81
2
Anand Ballabh KaIaltiya, emocracy and lection Laws, Deep and Deep !ublications (!) Ltd, New Delhi,
1st ed 2003 at p84
3
Sec 100, Rep7esentation oI !eople Act, (R!A) 191
4
Sec 123, ibid

!a7t IV, Conduct oI Elections, R!A, 191 7ead with Conduct oI Elections Rules, 1961
An Analysis On The OIIences Relating To Elections NOVEMBER,2011

3 !7oject Repo7t

CHAPTER III
PROVISIONS IN IPC, 6
II a candidate, his election agent o7 any othe7 pe7son commits co77upt p7actices in election,
the election may be set aside and the pe7son involved in such co77upt p7actice is liable to be
disqualiIied Io7 contesting election Apa7t I7om setting aside an election oI the 7etu7ned
candidate and disqualiIying him o7 any othe7 pe7son who has committed co77upt p7actice,
penalties have been p7ovided Io7 seve7al electo7al oIIences unde7 Chapte7 II oI
Rep7esentation oI !eople Act, 191 and Chapte7 IX-A oI the Indian !enal Code, 1860
!7ovisions oI Rep7esentation oI !eople Act, 191 has been sepa7ately dealt in the next
chapte7
3..Overview of Chapter IX A
Chapte7 IX A oI the Indian !enal Code (I!C), 1960 deals with oIIences 7elating to Elections
This chapte7 was added to I!C in the yea7 1920,
6
aIte7 the B7itish Indian Gove7nment
int7oduced limited Indian pa7ticipation in the electo7al p7ocess The object oI the Chapte7 is to
make punishable b7ibe7y, undue inIluence, pe7sonation and othe7 malp7actices at elections
and to p7ovide punishment the7eoI Although in 191, (R!A) was passed by the !a7liament
which is a mo7e comp7ehensive legislation on the subject, howeve7 the gene7al p7ovisions oI
this chapte7 oI I!C a7e necessa7y, in so Ia7 as they apply not only to election to !a7liament o7
State Legislatu7e, but to eve7y othe7 kind oI Election
7
Thus despite the existence oI R!A,
191, (R!A), o7dina7y c7iminal cou7ts still have ju7isdiction to decide cases alleging any oI
the election 7elated oIIences deIined in secs 171 B to 171 E, I!C The I!C and the R!A have
to be seen as complementing each othe7, as seve7al deIinitions oI election oIIences a7e
p7ovided in the R!A, as Io7 example, the oIIence oI undue inIluence
8
Simila7ly, a
conviction unde7 secs 171E and 171F oI the I!C amounts a disqualiIication unde7 the R!A
9

3.2.Scope of the Chapter

6
Added by the Indian Elections OIIences and Inqui7ies Act, 1920
7
D7 KI Vibhute, P.S.A. Pillais Criminal Law, Lexis Nexis Butte7swo7th, New Delhi, 10
th
ed 2008, at p 67
8
Sec 123(1), R!A, 191
9
Sec 8, R!A, 191
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4 !7oject Repo7t

The ve7y Ii7st p7ovision (s 171A) in the chapte7 7elates to the deIinition oI candidate` and
electo7al 7ight` The7eaIte7, the chapte7 discusses six oIIences in 7elation to elections They
a7e:
O B7ibe7y and punishment the7eoI (Sec 171B and 171E)
O Undue inIluence (Sec 171C and 171F)
O !e7sonation at election (Sec 171D)
O Making o7 publishing False Statements (sec 171 G)
O Illegal payments (sec 171 )
O Failu7e to keep election accounts (sec 171 I)
The Ii7st th7ee oIIences, namely, B7ibe7y, Undue InIluence, and !e7sonation, a7e conside7ed
g7ave enough to dese7ve imp7isonment Io7 a te7m up to one yea7 The othe7 th7ee oIIences,
vis, making Ialse statements about the pe7sonal cha7acte7 o7 conduct oI a candidate, illegal
payments in connection with an election, and Iailu7e to keep election accounts as 7equi7ed by
law, a7e punishable with Iine only
3.3.Candidate & Electoral Right
Candidate has been deIined as any pe7son who has been nominated as a candidate at any
election
60
The dete7mining Iacto7 as to who is a candidate lies in the decision oI the
candidate himselI, not on the act oI othe7 pe7sons o7 bodies adopting him as candidate Thus
iI he has communicated his intention to the outside wo7ld by decla7ation o7 conduct, I7om
which it can be inIe77ed that he intends to contest elections, then I7om that moment onwa7ds,
he would be conside7ed to be a candidate
61

The te7m electo7al 7ight has been deIined as the 7ight oI a pe7son to stand o7 not to stand as,
o7 to withd7aw I7om being, a candidate o7 to vote o7 7eI7ain I7om voting at any election
62
The
te7m Election has been deIined in expln 3 to 21 oI the I!C It denotes an election Io7 the
pu7pose oI selecting membe7s oI any legislative, municipal o7 othe7 public autho7ity oI
whateve7 cha7acte7, the method oI selection to which is by, o7 unde7, any law p7esc7ibed as by
election
3.4.Specific Offences

60
Sec 171 A, R!A, 191
61
S Khader v Munuswami, AIR 19 SC 77
62
Sec 171 A, R!A, 191
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5 !7oject Repo7t

3.4.1. Bribery
Giving o7 acceptance oI b7ibe7y o7 g7atiIication eithe7 as a motive o7 as a 7ewa7d to induce
any pe7son to stand o7 not to stand as o7 to withd7aw I7om being a candidate o7 to vote o7
7eI7ain I7om voting at an election
63
, is punishable with imp7isonment oI eithe7 desc7iption Io7
a te7m which may extend to one yea7, o7 with Iine, o7 with both oweve7, b7ibe7y in the
Io7m oI Iood, d7ink, ente7tainment o7 othe7wise 't7eating is punishable with Iine only
64
But
decla7ation oI a public policy o7 p7omise oI a public action is not an oIIence unde7 sec 171 B
The oIIence is non-cognizable, bailable and t7iable by Magist7ate oI Ii7st class
6

The te7m g7atiIication` may be taken to mean, something valuable which is calculated to
satisIy a pe7son`s aim, object o7 desi7e, whethe7 o7 not that thing is estimable in te7ms oI
money`
66
In the case oI Trilochan Singh v Karnail Singh,
67
two tests we7e evolved to check
out as to what would amount to an act oI b7ibe7y The Ii7st test was to see whethe7 the
g7atiIication was calculated to satisIy a pe7son`s aim, object o7 desi7e, and secondly, whethe7
the g7atiIication would be oI some value, even iI the value was not estimable in te7ms oI
money The g7atiIication need not me7ely be oI value to the pe7son oIIe7ed, but also to
anybody else
3.4.2. Undue Influence
Section 171C deIines the oIIence oI undue oIIence at elections while 171F p7ovides the
punishment Io7 the same The essential ing7edient oI the oIIence is that the7e should be a
volunta7y inte7Ie7ence o7 attempted inte7Ie7ence with the 7ight oI a pe7son to enjoy his
electo7al 7ights, namely, the 7ight to stand Io7 elections o7 to withd7aw I7om elections This
cove7s all th7eats oI inju7y to pe7son o7 p7ope7ty and all illegal methods oI pe7suasion and any
inte7Ie7ence with the libe7ty oI the candidate o7 the electo7s The inducing o7 attempting to
induce a pe7son to believe that he will become the object oI divine displeasu7e is also
inte7Ie7ence It is not, howeve7, inte7Ie7ence within the meaning oI 171 C (3) to make a
decla7ation oI public policy o7 p7omise oI public action
68
The gist oI Undue InIluence
consists in volunta7y inte7Ie7ence o7 attempts at inte7Ie7ence with the I7ee exe7cise oI any

63
Sec 171 B, ibid
64
Sec 171 E, ibid
6
The Fi7st Schedule oI Code oI C7iminal !7ocedu7e, 1973
66
Mohan Singh v hanwarlal, AIR 1964 SC 1366
67
AIR 1968 !unj 416, (1968) C7 U 1199 (!&) (FB)
68
Anand Ballabh KaIaltiya, emocracy and lection Laws, Deep and Deep !ublications (!) Ltd, New Delhi,
1
st
ed 2003 at p293
An Analysis On The OIIences Relating To Elections NOVEMBER,2011

6 !7oject Repo7t

electo7al 7ights
69
Unlike English Law, in Indian Law, what is mate7ial is not the actual eIIect
p7oduced, but the commission oI such acts, as a7e calculated to inte7Ie7e with the I7ee
exe7cise oI any electo7al 7ight
70

Following a7e held to be the impo7tant conside7ations Io7 the stages oI Undue InIluence
71

O The7e can be undue inIluence at any stage du7ing the elections This 7anges I7om the
time when the electo7 goes th7ough the mental p7ocess oI weighing the me7its and
deme7its oI the candidates to make his choice and also cove7s the time when he
actually casts his vote o7 ballot;
O The pamphlet would be one which would be cove7ed both by s 171C, as also s 171G,
even iI it was anonymous When it was dist7ibuted in !a7liament by a M! then it
showed that the pe7son had endo7sed the pamphlet;
O It is the deg7ee o7 g7avity oI the allegation, which dete7mines whethe7 the allegations
would be cove7ed by s 171 C o7 s 171G II it was aimed at cha7acte7 assassination,
then it would be the lesse7 oIIence oI s 171 G; howeve7, iI it amounted to inte7Ie7ence
with the election, then it would be cove7ed by p7ovision oI s 171 C
3.4.3. !ersonation at an Election
hoever at an election applies for a voting paper or votes in the name of any other person,
whether living or dead, or in a fictitious name, or who having voted once at such election
applies at the same election for a voting paper in his own name, and whoever abets, procures
or attempts to procure the voting by any person in any such way, commits the offence of
personation at an election.
Provided that nothing in this section shall apply to a person who has been authorised to vote
as proxy for an elector under any law for the time being in force in so far as he votes as a
proxy for such elector.
72
The oIIence oI pe7sonation is punished with an imp7isonment Io7 a
te7m oI one yea7, Iine o7 both
73

This sec deIines pe7sonation at elections It cove7s a pe7son who attempts to vote in anothe7
pe7son`s name o7 in a Iictitious name, as well as a vote7 who attempts to vote twice and any

69
aburao Patel v r. Zakir Hussain, AIR 1968 SC9 04
70
Ram ial v Sant Lal, AIR 199 SC 8
71
Shiv Kripal Singh v JJ Giri, AIR 1970 SC 2097
72
Sec 171D !e7sonation at Elections
73
Sec 171 F
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7 !7oject Repo7t

pe7son who abets, p7ocu7es, o7 attempts to p7ocu7e such voting

74
The oIIence deIined he7e
diIIe7s I7om the p7evious ones in that it cove7s the oIIences committed not by the candidate o7
his agent, but by othe7s also The essence oI the oIIence oI Ialse pe7sonation is that the
oIIende7 p7etends to be othe7 than what he 7eally is It cove7s only issues when the7e is an
attempt at impe7sonation and does not come into play when the candidate o7 his agent, do not
claim to be the vote7s themselves, when they make c7oss against any name
7
The oIIende7
must have a co77upt motive A pe7son, who, in good Iaith, believes that he has two votes as
his name appea7ed in two lists oI vote7s at two polling stations, the7eIo7e, cannot be held
guilty unde7 the section
76
oweve7, p7ooI oI mens rea o7 co77upt motive is not 7equi7ed when
a pe7son knowing that he is not entitled to vote, goes to a polling station and applies Io7 a
ballot pape7 unde7 a Ialse name is mens rea o7 co77upt motive is implied in his act
77

3.4.4. Making or !ublishing Deliberate False Statements
hoever with intent to affect the result of an election makes or publishes any statement
purporting to be a statement of fact which is false and which he either knows or believes to be
false or does not believe to be true, in relation to the personal character or conduct of any
candidate shall be punished with fine.
78

Section 171G penalizes a pe7son making o7 publishing a Ialse statement in 7elation to the
pe7sonal cha7acte7 o7 conduct oI a candidate A statement that does not contain a statement oI
Iact 7elating to the pe7sonal cha7acte7 o7 conduct oI a candidate does not amount to an oIIence
unde7 the section
79
A gene7al statement o7 a gene7al imputation oI misconduct o7 a statement
oI Iact does not come within the pu7view oI s 17 1G
80

To a cha7ge oI Ialse statement and the7eby to invoke s 171 G, it is 7equi7ed to p7ove that:
O An election was impeding
O The accused made o7 published a statement
O The statement 7elated to the pe7sonal cha7acte7 o7 conduct oI a candidate

74
VR Manoha7 & V Chand7achud, Ratanlal & hiraflals The Indian Penal Code, Wadhwa Nagpu7, New
Delhi, 2006
7
Parthasarathi v Ramachandra Rao, AIR 196 A! 6; State of Gufarat v Chandulal hikalal AIR 196 Guj
83, (196) C7 U 440 (Guj)
76
Pantam Jenkayya v mperar, AlR 1930 Mad 246
77
State of Gufarat v Chandula hikalall, AIR 196 Guj 83, (196) C7 U 440 (Guj); State of Orissa v
Gokularick AIR 199 O7i 97
78
Section 171G False statement in connection with an election
79
Narayanaswamy Naicker v evarafa Mudaliar, AlR 1936 Mad 316
80
KumaraNanda v rif Mohan Lal Sharm,a, AIR 1967 SC 808
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O The statement was made o7 published with intent to aIIect the 7esult oI the election
O The accused knew that the statement was Ialse o7 believed to be Ialse o7 he did not
believe it to be t7ue
81

3.4.5. Illegal !ayments
hoever without the general or special authority in writing of a candidate incurs or
authori:es expenses on account of the holding of any public meeting, or upon any
advertisement, circular or publication, or in any other way whatsoever for the purpose of
promoting or procuring the election of such candidate, shall be punished with fine which may
extend to five hundred rupees.
Provided that if any person having incurred any such expenses not exceeding the amount of
ten rupees without authority obtains within ten days from the date on which such expenses
were incurred the approval in writing of the candidate, he shall be deemed to have incurred
such expenses with the authority of the candidate.
82

This section makes any unautho7ized and unapp7oved expenditu7e (by the candidate) illegal
at an election It plausibly intends to secu7e co77ect 7etu7ns oI expenditu7e and to p7event
co77uption
83
The punishment p7ovided Io7 such an unautho7ized and unapp7oved expenditu7e
is Iine up to Iive hund7ed 7upees
3.4.. Failure to keep Election Accounts
hoever being required by any law for the time being in force or any rule having the force of
law to keep accounts of expenses incurred at or in connection with an election fails to keep
such accounts shall be punished with fine which may extend to five hundred rupees.
84

Section 171-I penalizes the Iailu7e oI a candidate to keep accounts oI expenses incu77ed at an
election In Mast Ram v State of Punfab,
8
the Sup7eme Cou7t held that the oIIence 7eIe77ed to
by this section 7elated to non-maintenance oI accounts by a Membe7 oI !a7liament, who
contested elections and not to i77egula7 maintenance oI accounts


81
Mohd Kadir Sheriff v Rahmatullah, AIR 1940 Mad 230
82
Sec 171 Illegal !ayments in connection with an Election
83
D7 KI Vibhute, P.S.A. Pillais Criminal Law, Lexis Nexis Butte7swo7th, New Delhi, 10
th
ed 2008, at p 81
84
Sec 17 1-I Failu7e to keep election accounts, R!A, 191
8
(199) Supp 2 SCC 744
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CHAPTER IV
PROVISIONS IN REPRESENTATION OF PEOPLE ACT, 5 (RPA)
In addition to the penal p7ovisions in I!C, 1960, R!A also contains p7ovisions as to co77upt
p7actices and electo7al oIIences Section 2 (c) oI the act deIines co77upt p7actice as any oI the
p7actices speciIied in sec 123 oI the act Commission oI co77upt p7actice as deIined unde7 the
Act is a g7ound Io7 setting aside the election in question unde7 section 100
86
oI the Act
4..Corrupt Practices
Acco7ding to sec 123 oI the Iollowing shall be deemed to be co77upt p7actices
4.1.1.Bribery [sec. 123 (1)j
B7ibe7y includes any giIt, oIIe7 o7 p7omise by candidate o7 by his agent to-
O any pe7son with the object to induce him to stand o7 not to stand, to withd7aw o7 not
to withd7aw I7om being a candidate
O an electo7 to vote o7 7eI7ain I7om voting
The gist oI the co77upt p7actice unde7 Sub-section (1) oI Section 123 oI the 191 Act is that
the7e has to be a g7atiIication by a candidate o7 his agent o7 by any othe7 pe7son with the
consent oI a candidate o7 his election agent, to any pe7son with the object oI inducing a
pe7son to stand o7 not to stand as a candidate at the election o7 inducing vote7s to vote Io7 him
o7 not to vote Io7 some othe7s oweve7, wide7 meaning should be given to the wo7ds 'oIIe7
oI b7ibe7y because it includes all kinds oI oIIe7 oI b7ibe7y
87
In Rafendra Prasad Jain v
Sheel hadra Yafee
88
, it was obse7ved that when conside7ing the scope oI the wo7ds oIIe7 oI
b7ibe7y in the election law, the Cou7t should not place a na77ow const7uction on that
exp7ession In Iact, the scope oI that exp7ession should be extended in o7de7 to ensu7e that
elections a7e held in an atmosphe7e oI absolute pu7ity, and a wide meaning should be given to
the exp7ession oIIe7 oI b7ibe7y
4.2.2. Undue Influence [sec. 123 (2)j

86
G7ounds Io7 Decla7ing Election to be void
87
Anand Ballabh KaIaltiya, emocracy and lection Laws, Deep and Deep !ublications (!) Ltd, New Delhi,
1
st
ed 2003 at p182
88
AIR 1967 SC 144
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Undue inIluence, has been any di7ect o7 indi7ect inte7Ie7ence o7 attempt to inte7Ie7e on the
pa7t oI the candidate o7 his agent, o7 oI any othe7 pe7son with the consent oI the candidate o7
his election agent, with the I7ee exe7cise oI any electo7al 7ight Th7eatening any candidate o7
inducing o7 attempt to induce any candidate o7 any pe7son in whom he is inte7ested is deemed
to be inte7Ie7ence with electo7al 7ight unde7 this clause
89
oweve7, a decla7ation oI public
policy, o7 a p7omise oI publication, o7 the me7e exe7cise oI a legal 7ight without intent to
inte7Ie7e with an electo7al 7ight, shall not be deemed to be inte7Ie7ence within the meaning oI
this clause
90

4.2.3. Appeal on Cround of Religion, race, caste community or language and the use of
appeal to religious and national symbols [sec. 123 (3)j
The appeal by a candidate o7 his agent o7 by any othe7 pe7son with the consent oI a candidate
o7 his election agent to vote o7 7eI7ain I7om voting Io7 any pe7son on the g7ound oI his
7eligion, 7ace, caste community o7 language o7 the use oI, o7 appeal to 7eligious symbols o7
the use oI, o7 appeal to, national symbols, such as the national Ilag o the national emblem Io7
the Iu7the7ance oI the p7ospects oI the election oI that candidate o7 Io7 p7ejudicially aIIecting
the election oI any candidate, is a co77upt p7actice unde7 this p7ovision
The 7est7iction imposed in this sec is in the inte7est oI decency in a secula7 polity and is thus
a 7easonable 7est7iction within the meaning oI A7t 19 (2) and is not violative oI A7t 19 (1)
(a)
91

4.2.4. !romoting Hatred or Enmity on the ground of Religion etc. [sec. 123 (3A)j
Sec 123 (3A) was inse7ted in 1961
92
which 7eads;
The p7omotion oI, o7 attempt to p7omote, Ieelings oI enmity o7 hat7ed between diIIe7ent
classes oI the citizens oI India on the g7ounds oI 7eligion, 7ace, caste, community o7 language,
by a candidate o7 his agent o7 any othe7 pe7son with the consent oI the candidate o7 hid
election agent Io7 the Iu7the7ance oI the p7ospects oI the election oI that candidate o7 Io7
p7ejudicially aIIecting the election oI any candidate

89
Sec 123 (2) (a), R!A, 191
90
Sec 123 (2) (b), ibid
91
r. Ramesh Y. Prabhoo v Prabhakar K. Kunte, (1996) 1 SCC 130
92
Inse7ted by Rep7esentation oI !eople, (Amendment) act, 1961
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The p7ovision is made with the object oI cu7bing the tendency to p7omote o7 attempt to
p7omote communal, linguistic o7 any othe7 Iactional enmity o7 hat7ed to p7event the divisive
tendencies, the p7ovision in the I!C as well as in the R! Act Io7 this pu7pose was made by
amendment at the same time The amendment in the R! Act Iollowed amendments made in
the Indian !enal code to this eIIect in a bid to cu7b any tendency to 7eso7t to divisive means to
achieve success at the polls on the g7ound oI 7eligion o7 na77ow communal o7 linguistic
aIIiliations Any such attempt du7ing the election is viewed with disIavou7 unde7 the law and
is made co77upt p7actice u/s 123 (3A), R!A, 191
93

4.2.5. !ublication of False Statement [sec. 123 (4)j
The publication by a candidate o7 his agent o7 by any othe7 pe7son with the consent oI a
candidate o7 his election agent, oI any statement oI Iact which is Ialse, and which he eithe7
believes to be Ialse o7 does not believe to be t7ue, in 7elation to the pe7sonal cha7acte7 o7
conduct oI any candidate, o7 in 7elation to the candidatu7e, o7 withd7awal, oI any candidate,
being a statement 7easonably calculated to p7ejudice the p7ospects oI that candidate`s
election, is 7ega7ded as co77upt p7actice unde7 this p7ovision
The policy unde7lying the p7ovisions oI section 123(4) is that in the matte7 oI elections, the
public and political cha7acte7 oI a candidate is open to sc7utiny and can be seve7ely c7iticised
by his opponents, but a !7ivate o7 pe7sonal cha7acte7 is not so In o7de7 that the elections in a
Democ7atic count7y should be I7eely and Iea7lessly conducted, conside7able latitude has to be
given to the competing candidates to c7iticize the political and socio-economic philosophy oI
thei7 opponents o7 thei7 antecedents and cha7acte7 as public men That is why even Ialse
statements as to the public cha7acte7 oI candidates a7e not b7ought within the mischieI oI
section 123(4), because the legislatu7e thought that in the heat oI election it may be
pe7missible Io7 competing pa7ties and candidates to make statements in 7elation to the public
cha7acte7 oI thei7 opponents, and even iI some oI the statements a7e Ialse, they would not
amount to co77upt p7actice
94

4.2.. Free Conveyance of Joters [sec. 123 (5)j

93
Abhinav !7akash, Law Relating to lections, Unive7sal Law !ublishing Co!vt Ltd, New Delhi, 2006, at p
169
94
r. Jagfit Singh v. Giani K. Singh, AIR 1966 SC 773
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22 !7oject Repo7t

The scope oI this p7ovision has been discussed by Sup7eme cou7t in adasaheb attatraya
Pawar v Pandurang Rao Jagtap,
9

To sustain an action unde7 this p7ovision it is necessa7y to p7ove:
O That any vehicle o7 vessel was hi7ed o7 p7ocu7ed, whethe7 on payment o7 othe7wise,
by the candidate o7 by his election agent o7 by any othe7 pe7son with the consent oI
the candidate o7 oI his election agent
O Tthat it was used Io7 the conveyance oI the electo7s to o7 I7om any polling station
O That such conveyance was I7ee oI cost to the electo7s
Failu7e to substantiate any oI these ing7edients leads to the collapse oI the whole cha7ge
unde7 section 123()
4.2.7. Incurring Unauthorised Expenditure [sec. 123 ()j
Section 123(6) oI the 191-Act makes the the incu77ing o7 autho7izing & expenditu7e in
cont7avention oI section 77
96
a co77upt p7actice DiIIe7ent limits oI election expenditu7e Io7
pa7liamenta7y and assembly constituencies Io7 diIIe7ent states and UTs have been p7ovided
97

The object oI the p7ovision limiting the expenditu7e is two Iold In the Ii7st place it should be
open to any individual o7 any political pa7ty, howsoeve7 small, be able to contest an election
on a Iooting oI equality with any othe7 individual o7 political pa7ty, howsoeve7 7ich and well
Iinanced it may be, and no individual o7 political pa7ty should be able to secu7e an advantage
ove7 othe7 by 7eason oI its supe7io7 Iinancial st7ength
98

4.2.8. btaining services of Covernment servant [sec. 123 (7)j
The obtaining o7 p7ocu7ing o7 abetting o7 attempting to obtain o7 p7ocu7e by a candidate o7
his agent o7, by any othe7 pe7son with the consent oI a candidate o7 his election agent, any
assistance (othe7 than the giving oI vote) Io7 the Iu7the7ance oI the p7ospects oI that
candidate`s election, I7om any pe7son in the se7vice oI the Gove7nment and belonging to any
oI the Iollowing classes,
O gazetted oIIice7s;

9
AIR 1978 SC31
96
Sec 77 (3), R!A, 191 7est7icts that the total oI the said expenditu7e shall not exceed such amount as may be
p7esc7ibed
97
Rule 90, Conduct oI Election Rules, 1961
98
Kanwar Lal Gupta v Amar Nath Chawla, AIR 197 SC 308
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23 !7oject Repo7t

O stipendia7y judges and magist7ates;

O membe7s oI the a7med Io7ces oI the Union;
O membe7s oI the police Io7ces;
O excise oIIice7s;
O 7evenue oIIice7s othe7 than village 7evenue oIIice7s known as lamba7da7s, malguza7s,
patels, deshmukhs o7 by any othe7 name, whose duty is to collect land 7evenue and
who a7e 7emune7ated by a sha7e oI, o7 commission on, the amount oI land 7evenue
collected by them but who do not discha7ge any police Iunctions
O such othe7 classes oI pe7sons in the se7vice oI Gove7nment as may be p7esc7ibed
would amount to co77upt p7actice It is impo7tant to note that what the law p7events is the
obtaining o7 p7ocu7ing oI assistance oI a gove7nment se7vant It does not p7ohibit any
volunta7y assistance 7ende7ed by a gove7nment se7vant without the candidate asking Io7 it A
gove7nment se7vant has a p7ivate pe7sonality too and help 7ende7ed volunta7ily by a
gove7nment se7vant without any attempt by the candidate to obtain o7 p7ocu7e does not
constitute the co77upt p7actice unde7 section 123 (7), whateve7 be the imp7op7iety oI it Io7 the
gove7nment se7vant himselI
99

4.2.9. Booth capturing [sec. 123 (8)j
Booth captu7ing unde7 the head Co77upt !7actices has been given the same meaning as unde7
sec 13 (A), unde7 which it has been made an Electo7al OIIence and it has been discussed
subsequently in this chapte7
4.3. Electoral Offences
4.3.1. !romoting Enmity Between Classes
!7omoting enmity between classes in connection with election, unde7 Section I2 oI the R!
Act, 191 is a cognizable oIIence punishable withh imp7isonment Io7 a te7m which may
extend to th7ee yea7s o7 Iine o7 with bot This Section can be compa7ed with Sub-section (3-
A) oI Sec 123 oI the RR Act, 191 and with Section 13-A
100
and Sub-section (2) oI Sec
0
101
oI the Indian !enal Code An oIIence unde7 this Section amounts to a co77upt p7actice
and 7esults in setting aside oI election vide Section 100(1) (b) oI the R! Act, 191 OIIence

99
Indira N. Gandhi v. Raf Narain, AIR 197 SC 2299
100
!7omoting enmity between diIIe7ent g7oups on g7ound oI 7eligion, 7ace, place oI bi7th, 7esidence, language,
etc, and doing acts p7ejudicial to maintenance oI ha7mony
101
Statements conducing public mischieI
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24 !7oject Repo7t

oI p7omoting enmity between classes, is non- bailable and t7iable by Magist7ate oI the Ii7st
class
102
It is 7elevant to note that sec 12 is an independent p7ovision and it has nothing to
do with an election dispute It is not necessa7y that an election dispute should be pending o7
the pe7son accused oI this oIIence should have been held guilty by the election Cou7t Any
pe7son including the candidate o7 his election agent can be punished unde7 this Section iI he
has committed an oIIence with 7ega7d to elections
103

4.3.2. !ublic Meetings before !oll
Sec 126 p7ohibits public meetings du7ing a pe7iod oI Io7ty-eight hou7s ending with the hou7
Iixed Io7 beginning oI poll II a meeting is convened o7 held o7 attended by any pe7son in any
polling a7ea du7ing the pe7iod oI Io7ty-eight hou7s with the hou7 Iixed Io7 conclusion oI the
poll in any election in that polling a7ea, that is an oIIence unde7 Section 126 and is punishable
with Iine o7 with imp7isonment Io7 a te7m which may extend to two yea7s o7 with both The
p7ohibition imposed by this, sec is about holding oI public meetings and not canvassing Io7
election Acting o7 inciting othe7s to act in diso7de7ly manne7 Io7 the pu7pose oI t7ansacting
the business Io7 which the meeting was called is punishable unde7 Section 127 with
imp7isonment Io7 a te7m which may extend to six months o7 with Iine which may extend to
two thousand 7upees o7 with both police oIIice7s have the powe7 to 7equi7e such pe7son to
decla7e his name and add7ess and iI 7easonably suspected that he is giving a Ialse name o7
add7ess, to a77est that pe7son against whom a 7easonable suspicion exists Io7 violating sec 27
(1)
104
This Section is enacted in the public inte7est and it is within the competence oI
!a7liament, though it incidentally touches public o7de7 which is within the exclusive
ju7isdiction oI the State
10

4.3.3. !rovisions as regards to !amphlets and !osters
U/s 127-A, p7inte7s and publishe7s a7e 7equi7ed to p7int thei7 names and add7esses on any
election pamphlet o7 poste7 The p7inte7 is also 7equi7ed to get a decla7ation as to identity oI
the publishe7 signed by him and attested by two pe7sons to whom he is pe7sonally known, in
duplicate, and send a copy oI the p7inted document along with one copy oI the decla7ation to
the ChieI Electo7al OIIice7, iI p7inted in the capital oI a State o7 in othe7 cases, to the Dist7ict

102
Sec 12 oI the R! Act, 191 7ead with Sec 13-A, 0(2) oI the Indian !enal Code and the Fi7st Schedule
oI the Code oI C7iminal !7ocedu7e, 1973
103
brahim Suleman Sait v M.C. Mohammad, AIR 1980 SC 34
104
Sec 27 (3), R!A, 191
10
Rameshwar v State, AIR 197 !at 22
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25 !7oject Repo7t

Magist7ate oI the Dist7ict in which it is p7inted That is so because, wheneve7 a co77upt

p7actice is alleged unde7 Section 123(4),- it was diIIicult to Iind Out p7inte7 iI the name oI the
p7inting p7ess was not mentioned on the pamphlet and then it was mo7e diIIicult to establish
as to who has caused this to be p7inted Now, the 7equi7ement p7esc7ibed by Section 127-A to
p7int the name oI the p7inte7 and publishe7 has made the job easie7
106

4.3.4. Duty to maintain Secrecy of Joting
Sec 128 lays down that eve7y oIIice7, cle7k, agent o7 any othe7 pe7son pe7Io7ming any duty in
connection with the 7eco7ding o7 counting oI votes at an election is bound to maintain the
sec7ecy oI voting and in maintaining such sec7ecy, he shall not, except Io7 some pu7poses
autho7ised unde7 the Act o7 any othe7 law, communicate to any pe7son any inIo7mation
calculated to violate such sec7ecy
107
The cont7avention oI this 7ule makes him liable to
imp7isonment Io7 a te7m which may extend to th7ee months o7 with Iine o7 with both
108

oweve7, a gene7al inspection should not be pe7mitted until the7e is satisIacto7y p7ooI in
suppo7t oI those allegations
109

4.3.5. Duty of Election fficers
Sec 129 casts a duty on oIIice7s etc at elections not to act Io7 candidate o7 to inIluence
voting It says that no pe7son who is a Dist7ict Election OIIice7 o7 a Retu7ning OIIice7, o7 an
Assistant Retu7ning OIIice7, o7 a !7esiding OIIice7 o7 !olling OIIice7 at an election, o7 an
oIIice7 o7 cle7k appointed by the Retu7ning OIIice7 o7 the !7esiding OIIice7 to pe7Io7m any
duty in connection with an election, shall in the conduct o7 the management oI the election do
any act (othe7 than the giving oI vote) Io7 the Iu7the7ance oI the p7ospects oI the election oI a
candidate No such pe7son as aIo7esaid, and no membe7 oI a police Io7ce, shall endeavou7 to
pe7suade any pe7son to give o7 not to give his vote o7 to inIluence the voting oI any pe7son at
an election in any manne7 The cont7avention may be penalised by imp7isonment which may
extend to six months o7 with Iine o7 with both The oIIence unde7 Section 129 is speciIically
made cognizable
110

4.3.. !rohibition of Canvassing or Disorderly Conduct

106
Anand Ballabh KaIaltiya, emocracy and lection Laws, Deep and Deep !ublications (!) Ltd, New Delhi,
1
st
ed 2003 at p288
107
Sec 128 (1), R!A, 191
108
Sewc 128 (2), ibid
109
Sashi hushan v. alraf Madhok, AIR 1972 SC 121, at p 126
110
Sec 129, R!A, 191
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26 !7oject Repo7t

Secs 130 and 131 p7ohibit canvassing o7 diso7de7ly conduct in o7 nea7 the polling station It
lays down that no pe7son shall, on the date o7 dates, on which a poll is taken at any polling
station, make canvassing Io7 votes o7 pe7suade any pe7son to vote o7 not to vote, exhibit any
notice 7elating to election within a distance oI one hund7ed mete7s oI the polling station
Section 132 p7esc7ibes penalties Io7 misconduct at the polling station the !7esiding OIIice7 o7
any pe7son autho7ised by him in this behalI o7 any !olice OIIice7 on duty may 7emove any
pe7son I7om the !olling station iI he Iails to obey the lawIul di7ections oI the !7esiding
OIIice7
111
and iI such pe7son 7e-ente7s the p7emises, then he may be punished with
imp7isonment Io7 a te7m which may extend to th7ee months o7 with Iine o7 with both The
oIIence is made cognizable
4.3.7. Removal of Ballot !apers
Removal oI ballot pape7s I7om the polling station is an oIIence
112
and iI the !7esiding OIIice7
has 7eason to believe that any pe7son is committing this oIIence, he may cause him to be
sea7ched by !olice OIIice7 The oIIence oI 7emoving the ballot pape7 is punishable with one
yea7 imp7isonment o7 with Iine which may extend to Iive hund7ed 7upees o7 with both
4.3.8. Booth Capturing
Booth captu7ing is a type oI electo7al I7aud, Iound p7ima7ily in India, in which pa7ty loyalists
"captu7e" a polling booth and vote in place oI legitimate vote7s to ensu7e that thei7 candidate
wins Though it is a kind oI vote7 supp7ession, unlike othe7 Io7ms oI voting I7aud, booth-
captu7ing is a malp7actice witnessed mainly in India and the least subtle oI all
Almost eve7y state in the count7y has witnessed some booths being captu7ed eithe7 by the
7uling o7 opposition pa7ties, though it is disp7opo7tionately widesp7ead in states in No7th
India like Biha7, Utta7 !7adesh and neighbou7ing a7eas The wo7d came into p7ominent use by
the media du7ing the late 1970s and 1980s when the numbe7 oI pa7ties and the7eIo7e
candidates multiplied This 7esulted in some politicians using unde7hand methods including
booth captu7ing, especially in the 7u7al hinte7land oI India It became such an o7ganised pa7t
oI the Indian election p7ocess, that the7e we7e gangs who o7ganised themselves to stuII ballot
boxes, anothe7 to intimidate the public and even the polling oIIice7s while the police we7e
eithe7 b7ibed o7 intimidated themselves The modus ope7andi oI such booth captu7ing

111
Sec 132 (1), R!A, 191
112
Sec 13, ibid
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27 !7oject Repo7t

ope7ations was made easie7 by the Iact that communication in many a7eas was lite7ally absent
with minimal to no police p7otection and the7e was also some kind oI political backing to
such unlawIul activities By the 90s it became a common and unsightly occu77ence whe7eve7
elections we7e held Sometimes two 7ival pa7ty thugs would descend on the same polling
station, 7esulting in violent clashes with inju7ies and even deaths on both sides
In Iact this has been one oI the majo7 7easons Io7 the disenchantment oI the people with the
sanctity oI electo7al p7ocess itselI the7eby losing thei7 Iaith in the democ7atic gove7nment
Though the Election Commission has taken ste7ne7 measu7es
113
and sometimes issued di7ect
wa7nings against booth captu7ing and 7igging including shoot-at-sight o7de7s o7
counte7manding oI the poll and 7escinding oI voting at the booths aIIected by booth
captu7ing, but it has become a Iutile exe7cise Since the ea7ly eighties, complaints 7ega7ding
booth captu7ing have been steadily inc7easing;
114
the7eIo7e, Sub-Section (8) was inse7ted in
Section 123 oI the R! Act, 191 by Amending Act No1 oI 1989, speciIying booth
captu7ing by a candidate o7 his agent o7 any othe7 pe7son as co77upt p7actice
11

Booth captu7ing by a candidate o7 his agent o7 othe7 pe7son was made as a sepa7ate co77upt
p7actice by 7ep7esentation oI !eople (Amendment Act, 1989) !7io7 to this amendment, the
act oI booth captu7ing was cove7ed unde7 undue inIluence The Explanation (4) to Section
123 7eIe7 to Section 13-A oI the Act Io7 the pu7pose oI deIinition oI booth captu7ing
116

unde7 Section 123(8) Section 13-A oI the R! Act, 191 as unde7;
Fo7 the pu7pose oI this Section, booth captu7ing includes, among othe7 things, all o7 any oI
the Iollowing activities, namely:
(a) Seizu7e oI a polling station o7 a place Iixed Io7 the poll by any pe7son o7 pe7sons
making polling autho7ities su77ende7 the ballot pape7s o7 voting machines and doing
oI any othe7 act which aIIects the o7de7ly conduct oI elections;
(b)Taking possession oI a polling station o7 a place Iixed Io7 the poll by any pe7son o7
pe7sons and allowing only his o7 thei7 own suppo7te7s to exe7cise thei7 7ight to vote
and p7event othe7s I7om voting;

113
Election Commission oI India, Second Annual Repo7t (1984), pp 77-78
114
L!SING, ELECTORAL REFORMS 3(Unive7sal !ublishing ouse, 1988)
11
ANAND BALLAB KAFALTIA, DEMOCRAC AND ELECTION LAWS, 280 (Deep & Deep !ublications, 2007)
116
Section 13-A, oIIences oI booth captu7ing Rep7esentation oI !eople Act, 191
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(c) Th7eatening nay electo7 and p7eventing him I7om going to the polling station o7 a
place Iixed Io7 the poll to cast his vote;
(d)Seizu7e oI place Io7 counting oI votes by any pe7son o7 pe7sons, making the counting
autho7ities su77ende7 the ballot pape7s o7 voting machines and the doing oI anything
which aIIects the o7de7ly counting oI votes; and
(e) Doing by any pe7son in the se7vice oI Gove7nment, oI all o7 any oI the aIo7esaid
activities o7 aiding o7 conniving at, any such activity in the Iu7the7ance oI the
p7ospects oI the election oI a candidate
It seems that all the possible acts oI violence o7 th7eats at the polling booths and at the
counting cent7es have been included within the deIinition oI co77upt p7actice oI booth
captu7ing What is needed is 7igo7ous implementation oI the p7ovision oI law BeIo7e the
amendment oI 1989, the7e we7e Iew cases in which booth captu7ing was an issue In Ram
Singh v Col. Ram Singh,
117
it was alleged that the 7etu7ned candidate and some oI his a7med
companions ente7ed the polling station and b7andished thei7 guns at the !7esiding OIIice7 and
o7de7ed the othe7 polling staII and polling agents to stand and then bogus votes we7e put
Io7cibly Sup7eme Cou7t held that Io7cible putting oI bogus votes and booth captu7ing does
not constitute co77upt p7actice oweve7, in Ram Saran Yadav v Thakur Maneshwar Nath
Singh,
118
it was p7oved that when vote7s we7e going to the polling station, the agents and
suppo7te7s oI the 7etu7ned candidate indulged in assault and hu7ling oI bombs etc No step
was taken by the candidate to stop them I7om doing so The !atna igh Cou7t set aside the
election on the g7ound oI commission oI co77upt p7actice unde7 Section 123(2), which was
aIIi7med by the Sup7eme Cou7t These cases we7e decided on the g7ound oI using oI physical
Io7ce to 7est7ain vote7 I7om exe7cising his electo7al 7ight unde7 the speciIic head undue
influence. II booth captu7ing is done by the candidate o7 by his election agent o7 by any othe7
pe7son with his consent, then booth captu7ing ipso facto would be suIIicient to set aside the
election oI such candidate
119
II it is committed by some pe7son without the consent oI the
candidate o7 by his election agent to Iu7the7 the p7ospects oI that candidate at that election,

117
AIR 1986 SC 3; RN COUDAR, ELECTION LAWS AND !RACTICE IN INDIA 309 (O7ient !ublishing
Company, 2007)
118
AIR 198 SC 24
119
RN Choudha7y, Supra at 312
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the election would be set aside only iI it is p7oved that the 7esult oI the election is mate7ially
aIIected because oI it
120

A ca7eIul study oI election cases 7eveal that the evidence led in suppo7t oI the co77upt p7actice
must only be cogent and deIinite but iI the election petitione7 has to succeed, he must
establish deIinitely and to the satisIaction oI the Cou7t the cha7ge oI co77upt p7actice which is
levelled against the 7etu7ned candidate
121
In 7ecent judgement, the Sup7eme Cou7t in L.R.
Shivaramagowda v T.M. Chandrasekhar
122
has held that the election law insists that to
unseat a 7etu7ned candidate, the co77upt p7actice must be speciIically alleged and st7ictly
p7oved to have been committed by the 7etu7ned candidate himselI o7 by his election agent
Suspicion, howeve7 st7ong, cannot take the place oI p7ooI, whethe7 the allegations a7e sought
to be established by di7ect evidence o7 by ci7cumstantial evidence Dealing speciIically with
Section 123(8) the apex Cou7t in aldev Singh Mann v Gurucharan Singh (MLA)
123
and
othe7s obse7ved;
An allegation oI co77upt p7actise within the meaning oI Sub-Section (1) to (8) oI Section 123
oI the Act, made in the election petition a7e 7ega7ded quasi-c7iminal in natu7e 7equi7ing a
st7ict p7ooI oI the same because the consequences a7e not only ve7y se7ious but also penal in
natu7e On the p7ooI oI any oI the co77upt p7actice as alleged in the election petition it is not
only the election oI the 7etu7ned candidate which is decla7ed void and set aside but besides
the disqualiIication, the candidate himselI o7 his agent o7 any othe7 pe7son as the case may be,
iI Iound to have committed co77upt p7actice may be punished with imp7isonment unde7
Section 13-A oI the Act It is Io7 these 7easons that the Cou7t insist upon st7ict p7ooI oI such
allegation oI co77upt p7actice and not to decide the case on p7eponde7ance o7 p7obabilities
The evidence has the7eIo7e, to be judged having 7ega7d to these well settled p7inciples
124

In aldev Singh Manns case, the allegations we7e that the 7etu7ned candidate along with his
suppo7te7s, va7iously a7med, th7eatened the polling agent oI the election petitione7 not to go
inside the polling station and not to 7aise objections 7ega7ding identity oI the vote7s !olling
agent oI the election petitione7 not examined as witness in suppo7t oI the allegation and no
complaint o7al o7 w7itten, about the incident made to Retu7ning OIIice7, !7esiding oIIice7 o7

120
Section 123(8) 7ead with Section 100(1) (d) (ii) oI the Rep7esentation oI !eople Act, 191; Ibid
121
Nand Singh v Afit Inder Singh, AIR 199 ! & 262; L.R. Shivaramgowda v T.M. Chandrasekhar, AIR 1999
SC 22
122
AIR 1999 SC 22
123
1996 SCALE (1)683 Anand Ballabh KaIaltiya Supra 3at 281
124
Ibid., SCALE at 746
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the !olice pe7sonnel on election duty On the cont7a7y, consistent, convincing and satisIacto7y
evidence adduced by the 7etu7ned candidate showing that polling was peaceIul Both the igh
Cou7t and Sup7eme Cou7t held that the allegations oI co77upt p7actice not made out ence
the petition was dismissed
12

Since sec7ecy oI voting is not to be inI7inged du7ing the election t7ail,
126
the election mate7ial
and 7eco7ds, like used o7 unused ballot pape7s, counte7Ioils, etc cannot be b7ought beIo7e the
Cou7t as a 7outine matte7
127
In Sasanagonda v S.. Amarhed,
128
it was alleged that the
7etu7ned candidate secu7ed eighty to ninthy pe7cent votes by means oI booth captu7ing That
the 7etu7ned candidate and his suppo7te7s th7eatened the election staII with connivance oI
police, they captu7ed the booth and p7evented the vote7s and suppo7te7s oI the petitione7 The
ballot pape7 put in the ballot put in the ballot box and counte7 Ioils we7e Io7ged and Iake The
Retu7ning OIIice7 had lodged FIR on which a case was 7egiste7ed 7elating to this incident
The election petitione7 called Io7 the documents, used o7 unused ballot pape7s and thei7
counte7 Ioils, etc It was held by the Sup7eme Cou7t that without any Iactual Ioundation in the
election petition, on the basis oI vague allegations oI booth captu7ing o7 7igging in va7ious
pa7ag7aphs oI the petition, it is not necessa7y to summon and examine these documents The
Cou7t 7eIused to allow p7oduction oI election mate7ial Io7 the p7oduction has been made out
Thus, the app7oach oI the Cou7t dealing with the cha7ge oI co77upt p7actice oI booth
captu7ing, seems to be not to inte7Ie7e with the election oI the successIul candidate lightly and
the ve7dict oI the electo7ate should not be upset unless the evidence adduced in suppo7t oI the
pleadings is oI such natu7e which leads to an i77esistible conclusion o7 unp7edictable 7esult
that the allegations made, have been committed 7ende7ing the election void In Nand Singh v
Afit Inder Singh,
129
it was alleged that at about 4 !M on the date oI polling at the polling
booth No 66-A, the election agent oI the 7espondent accompanied by seven othe7 named
pe7son came on a Tata Sumo vechicle They Io7cibly ente7ed the polling booth and santched
the ballot pape7s I7om the !7esiding OIIice7 and one oI them sta7ted putting the stamp on the
ballot pape7 in Iavou7 oI 7espondent The polling agent oI the 7espondent and two othe7 gant
oI the Cong7ess and C!M candidates who we7e p7esent on the polling booth Iolded the ballot
pape7 and put the same in the ballot boxes The polling agents aIo7esaid aIIixed thumb

12
DEV INDER, MANUAL OF ELECTION LAW IN INDIA 178 (Unive7sal Law !ublishing Co !vt Ltd, 2004)
126
Section 94 oI the Rep7esentation oI !eople Act, 191
127
Shashi ushan v alraf Madhok, AIR 1972 SC 12
128
AIR 1992 SC 1163; RN Choudha7y, Supra 5 at 314
129
AIR 1999 ! & 262; Dev Inde7, Supra 13 at 178
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3 !7oject Repo7t

imp7essions on the counte7 Ioils oI the ballot pape7s The 7espondent`s nephew was a7med
with 7evolve7 and held the same in his hand and asked the !7esiding OIIice7 and othe7 polling
staII to stand quite on the one side oI the polling booth and th7eatened to kill them iI they
t7ied to inte7eIe7e Two gunmen stopped the secu7ity gua7ds and vote7s I7om ente7ing into the
polling booth An FIR was also lodged acco7dingly by the !7esiding OIIice7 7elating to the
incident
130

The !unjab and a7yana igh Cou7t aIte7 detailed pe7usal oI the enti7e case law 7elating to
pleadings and p7ooI and aIte7 ca7eIul app7eciation oI the evidence adduced in the case, came
to the conclusion that the witnesses we7e highly inc7edible and they in all 7easonable
p7obabilities did not know and identiIy the pe7sons who indulge in booth captu7ing
131
and the
Cou7t took the view that the petitione7 has mise7ably Iailed to p7ove the cha7ge oI co77upt
p7actice levelled against the 7espondent The evidence led by the petitione7 was not Iound
wo7thy oI c7ediance and did not satisIy the st7ict standa7d oI p7ooI 7equi7ed Io7 establishing
the cha7ge oI booth captu7ing
132

It is submitted that the 7igging can be classiIied in two catego7ies, viz, the ove7t type which is
deIined as an electo7al oIIence unde7 Section 13-A and as co77upt type which is invisible o7
othe7wise peaceIul The cove7t type booth captu7ing seldom 7epo7ted to the conce7ned
autho7ities
133
It takes place at polling stations whe7e a pa7ticula7 caste o7 g7oup a7e in
dominant position The polling pe7sonal managing the booths have to pe7Io7ce acquiesce in
the invisible booth captu7ing out oI see7 Iea7 oI the 7ep7isal I7om the musclemen oI the
dominant g7oup o7 Io7 othe7 7easons
134
oweve7, deployment oI mo7e secu7ity Io7ces, photo
identity ca7ds oI vote7s and use oI elect7onic voting machines p7oved ve7y useIul in
7est7aining this type oI booth captu7ing Still, the7e is an impe7ative need Io7 political pa7ties,
bu7eauc7acy and the police to evolve a consensus and commitment to eschew 7igging and poll
violence The p7inciple oI 'di7ect and cogent evidence to p7ove the co77upt p7actice oI booth
captu7ing should be 7elaxed in o7de7 to yield cases 7elating to this co77upt p7actice
13


130
Anand Ballabh KaIaltiya, Supra 3 at 282
131
Nand Singh v Afit Inderfit Singh, AIR 1999 !& 262 at 279
132
Supra 19 at 282
133
Anand Ballabh KaIaltiya Supra 3 at 284
134
Caste and Candidate Selection-Lok Sabha !oll in Biha7, conomic and Political eekly (June 1-8, 1991), !
1376
13
Dev Inde7, Supra 13 at184

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32 !7oject Repo7t

CHAPTER V
ROLE OF ELECTION COMMISSION
5.. Model Code of Conduct
The Commission has issued va7ious inst7uctions on obse7vance oI code oI conduct I7om time
to time The Commission d7aws up a list oI 'dos' and 'don'ts' to be Iollowed by candidates and
political pa7ties aIte7 the announcement oI elections and till the completion oI the p7ocess oI
elections
136
Following a7e some ext7acts Io7m the Model Code oI Conduct issues by Election
Commission
137

O No pa7ty o7 candidate shall indulge in any activity which may agg7avate existing
diIIe7ences o7 c7eate mutual hat7ed o7 cause tension between diIIe7ent castes and
communities, 7eligious o7 linguistic
O C7iticism oI othe7 political pa7ties, when made, shall be conIined to thei7 policies and
p7og7amme, past 7eco7d and wo7k !a7ties and Candidates shall 7eI7ain I7om c7iticism
oI all aspects oI p7ivate liIe, not connected with the public activities oI the leade7s o7
wo7ke7s oI othe7 pa7ties C7iticism oI othe7 pa7ties o7 thei7 wo7ke7s based on
unve7iIied allegations o7 disto7tion shall be avoided
O The7e shall be no appeal to caste o7 communal Ieelings Io7 secu7ing votes Mosques,
Chu7ches, Temples o7 othe7 places oI wo7ship shall not be used as Io7um Io7 election
p7opaganda
O All pa7ties and candidates shall avoid sc7upulously all activities which a7e 'co77upt
p7actices and oIIences unde7 the election law, such as b7ibing oI vote7s, intimidation
oI vote7s, impe7sonation oI vote7s, canvassing within 100 met7es oI polling stations,
holding public meetings du7ing the pe7iod oI 48 hou7s ending with the hou7 Iixed Io7
the close oI the poll, and the t7anspo7t and conveyance oI vote7s to and I7om polling
station
O The 7ight oI eve7y individual Io7 peaceIul and undistu7bed home-liIe shall be
7espected, howeve7 much the political pa7ties o7 candidates may 7esent his political
opinions o7 activities O7ganising demonst7ations o7 picketing beIo7e the houses oI

136
Compendium oI Inst7uctions on Conduct oI Elections & Guidelines oI the Commission in lette7 no
437/6/2009-CC & BE dated th oI Ma7ch 2009, see http://ecinicin/ecimain/Electo7alLaws/compendium/vol3p
dI, accessed on Septembe7 19, 2011
137
http://wwwindian-electionscom/model-code-oI-conducthtml, accessed on, Septembe7 20, 2011
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33 !7oject Repo7t

individuals by way oI p7otesting against thei7 opinions o7 activities shall not be

7eso7ted to unde7 any ci7cumstances
O No !olitical !a7ty o7 candidate shall pe7mit its o7 his Iollowe7s to make use oI any
individual`s land, building, compound wall etc, without his pe7mission , Io7 e7ecting
Ilag-staIIs, suspending banne7s, pasting notices, w7iting slogans etc
O !olitical pa7ties and candidates shall ensu7e that thei7 suppo7te7s do not c7eate
obst7uctions in o7 b7eak up meetings and p7ocessions o7ganised by othe7 pa7ties
Wo7ke7s o7 sympathise7s oI one political pa7ty shall not c7eate distu7bances at public
meetings o7ganised by anothe7 political pa7ty by putting questions o7ally o7 in w7iting
o7 by dist7ibuting leaIlets oI thei7 own pa7ty !7ocessions shall not be taken out by one
pa7ty along places at which meetings a7e being held by anothe7 pa7ty !oste7s issued
by one pa7ty shall not be 7emoved by wo7ke7s oI anothe7 !a7ty

5.2.Proposed Electoral Reforms
With a view to attain the objectives oI F7ee and Fai7 Elections and keeping in mind the
election expe7iences the election commission p7oposed va7ious 7eIo7ms,
138
in the yea7 2004
Rega7ding C7iminalization oI !olitics Iollowing obse7vations we7e made:
This is an issue being raised by the Commission from 1998 onwards. isqualification for
criminal offences is provided for in Section 8
139
of the Representation of the People Act,
1951. As per that Section, a person is disqualified from contesting election only on conviction
by the Court of Law. There have been several instances of persons charged with serious and
heinous crimes like murder, rape, dacoity, etc. contesting election, pending their trial, and
even getting elected in a large number of cases. This leads to a very undesirable and
embarrassing situation of law breakers becoming law makers and moving around under
police protection. The Commission had proposed that the law should be amended to provide
that any person who is accused of an offence punishable by imprisonment for five years or
more should be disqualified from contesting election even when trial is pending, provided
charges have been framed against him by the competent court. The Commission reiterates
that such a step would go a long way in cleansing the political establishment from the
influence of criminal elements and protecting the sanctity of the Legislative Houses. The

138
!7oposed Electo7al ReIo7ms, Election Commission oI India, New Delhi, 2004, see http://wwwyouthIo7equal
itycom/electo7al-7eIo7m/ELECTORALREFORMS20ECIpdI, accessed on, Octobe7 1, 2011
139
DisqualiIication on Conviction Io7 Ce7tain OIIences
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34 !7oject Repo7t

counter view to this proposal is based on the doctrine that a person is presumed to be
innocent until he is proved guilty. The Commission is of the view that keeping a person, who
is accused of serious criminal charges and where the Court is prima facie satisfied about his
involvement in the crime and consequently framed charges, out of electoral arena would be a
reasonable restriction in greater public interests. There cannot be any grievance on this.
However, as a precaution against motivated cases by the ruling party, it may be provided
that only those cases which were filed prior to six months before an election alone would lead
to disqualification as proposed. It is also suggested that persons found guilty by a
Commission of nquiry should also stand disqualified from contesting elections.
140

Thus it may be said that othe7 than the laws p7evailing 7elating to the conduct oI elections, the
election commission plays an impo7tant 7ole in conduct oI elections by issuing model code oI
conduct I7om time to time Mo7eove7, it has also suggested 7eIo7ms in the election laws so as
to achieve the goal oI I7ee and Iai7 elections


140
!a7t 3, !7oposed Electo7al ReIo7ms, Election Commission oI India, New Delhi, 2004, see http://www youth
Io7equalitycom/electo7al-7eIo7m/ELECTORALREFORMS20ECIpdI, accessed on, Octobe7 , 2011
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CHAPTER VI
SUGGESTIONS FOR REFORM

6..Needed Reforms in IPC
The 14
th
Law Commission, which Io7 the Ii7st time unde7took a comp7ehensive 7eview oI the
Indian !enal Code
141
oIIe7ed Iew substantive and st7uctu7al p7oposals Io7 7eIo7m in the
chapte7 dealing with oIIences 7elating to elections
142

Recalling the Iact that the deIinition oI electo7al 7ights` given in s 171A
143
does not
exp7essly 7eIe7 to the 7ight oI a pe7son not to withd7aw his candidatu7e in an election and the
subsequent changes b7ought in the co77esponding section oI the R!A, the Law Commission
p7oposed that the deIinition oI electo7al 7ight` be modiIied to inco7po7ate in it the 7ight oI a
candidate to withd7aw o7 not to withd7aw` his candidatu7e
144

It p7oposed that the p7ovisions dealing with deIinition oI the oIIence oI b7ibe7y (s 171 B) and
p7oviding punishment the7eIo7e (s 171 E) be cluste7ed togethe7 Io7 clea7 unde7standing it,
acco7dingly, suggested that the p7esent 171E be b7ought to s 171B as its cl (4) and s 171E be
deleted Realising the g7avity oI the oIIence oI b7ibe7y, it also 7ecommended that punishment
Io7 the oIIence oI b7ibe7y (except b7ibe7y by t7eating) be enhanced to imp7isonment Io7 a te7m
up to two yea7s o7 with Iine, o7 with both
14

The Law Commission was not satisIied with the clauses dealing with the oIIence oI undue
inIluence at elections` (secs 171 C and 171 F) !e7ceiving that the existing s 171C oIIe7s a
ve7y wide deIinition oI undue inIluence` capable oI taking any volunta7y inte7Ie7ence`
within its Iold and compa7ing it with pa7allel deIinitional clauses I7om the B7itish, Canadian
and Aust7alian election laws, the Law Commission st7essed the need to have a st7icte7
deIinition oI undue inIluence` is the I!C with a compa7atively seve7e punishment It also
suggested that the deIinition oI undue inIluence, in addition to the two objectionable methods

141
Law Commission oI India 42nd Repo7t on Indian !enal Code, see, http://lawcommissionoIindianicin/1-
0/Repo7t42pdI, accessed on, Octobe7 6, 2011
142
D7 KI Vibhute, P.S.A. Pillais Criminal Law, Lexis Nexis Butte7swo7th, New Delhi, 10
th
ed 2008, at p 81-
82
143
The 7ight oI a pe7son to stand o7 not to stand as, o7 to withd7aw I7om being, a candidate o7 to vote o7 7eI7ain
I7om voting at any election
144
!a7a 9A4, Law Commission oI India 42nd Repo7t on Indian !enal Code, see, http://lawcommission
noIindianicin/1-0/Repo7t42pdI, accessed on, Octobe7 7, 2011
14
!a7a 9A6, ibid
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36 !7oject Repo7t

oI undue inIluence mentioned in its two clauses, should exp7essly make mention oI any
violent method oI inte7Ie7ing with the I7ee exe7cise oI an electo7al 7ight It, the7eIo7e,
p7oposed that the existing s 171C be 7ewo7ded as Iollows:
171C. &ndue influence at elections.(1) whoever, with intent to interfere with the free
exercise of any electoral right at an election,
(a)makes use of, or threatens to make use of, any force, violence or wrongful restraint
on any person, or
(b)inflicts, or threatens to inflict, on any person, infury of any kind (including social
ostracism and expulsion or ex-communication from any caste or community), or
(c) induces, or attempts to induce, any person to believe that he will become obfect of
divine displeasure or of spiritual censure,
Commits the offence of undue influence at an election.
Provided that a declaration of public policy or a promise of public action shall not sbe an
offence under this section.
(2) hoever commits the offence of undue influence at an election shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or
with both, and if the offence is committed in the manner specified in clause (a) of sub-section
(1), the imprisonment may extend to three years.
146

Law Commission 7ecommended that s 171D (dealing with the oIIence oI pe7sonation at
elections) and s 171 F (dealing inte7 alia with punishment Io7 pe7sonation at elections) be
b7ought togethe7 It 7ecommended that the pa7t oI s 171F dealing with punishment Io7
pe7sonation be put in s 171D as its cl (2) and the punishment p7ovided the7eIo7e be enhanced
to imp7isonment Io7 te7m up to two yea7s, with Iine o7 both
147

The Law Commission, app7ehending that Ialse statements made in connection with elections
a7e not only likely to cause i77epa7able damage to the candidate conce7ned but a7e also likely
to IalsiIy the election as a whole, p7oposed that existing punishment Io7 making a Ialse
statement (oI only Iine) be enhanced to imp7isonment Io7 a te7m up to two yea7s, o7 with Iine

146
!a7a, 9A12, Law Commission oI India 42nd Repo7t on Indian !enal Code, see, http://lawcommissionoIindia
nicin/1-0/Repo7t42pdI, accessed on, Octobe7 8, 2011
147
!a7a 9A13, ibid
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o7 with both
148
It 7ecommended the deletion oI secs 171
149
and 17 1-I
10
I7om the I!C, as
they seem to be dead lette7s oI law
oweve7, none oI these p7oposals Io7 7eIo7m has 7eceived any 7esponse eithe7 I7om the
Legislatu7e when it p7epa7ed the Indian !enal Code (Amendment) Bill 1978 o7 I7om the
Fou7teenth Law Commission when it in 1997
11
unde7took 7eview oI I!C
6.2.Needed Reforms in RPA, 5
The law Commission in its 170
th
Repo7t on Electo7al ReIo7ms
12
has 7ecommended ce7tain
changes in R!A with a view to 7eIo7m the existing laws In 7elation to electo7al oIIences Lw
Commission has 7ecommend that section 8B be enacted and added to the act, making the
I7aming oI cha7ge (by cou7t) in 7espect oI election oIIences and ce7tain othe7 se7ious
oIIences a g7ound oI disqualiIication
13
It has also 7eite7ated the p7oposals to enhance
the punishment Io7 va7ious electo7al oIIences mentioned in the R!A as well as in the Indian
!enal Code All oI them a7e electo7al oIIences and se7iously inte7Ie7e with a Iai7 electo7al
p7ocess They Ioul the electo7al st7eam by letting in all kinds oI disto7tions and evils
into the electo7al system and Iinally into ou7 body politic The punishments at p7esent
p7ovided a7e totally inadequate and a7e 7idiculously low, hence need to be enhanced
14

Recommendations of Aational Commission to review the Working of Constitution
1

On Criminali:ation
O Rep7esentation oI the !eople Act shall be amended to p7ovide that any pe7son cha7ged
with any oIIence punishable with imp7isonment Io7 a maximum te7m oI Iive yea7s o7
mo7e, should be disqualiIied Io7 being chosen as, o7 Io7 being, a membe7 oI
!a7liament o7 Legislatu7e oI a State on the expi7y oI a pe7iod oI one yea7 I7om the
date the cha7ges we7e I7amed against him by the cou7t in that oIIence and unless
clea7ed du7ing that one yea7 pe7iod, he shall continue to 7emain so disqualiIied till the

148
!a7a9A14, ibid
149
Illegal !ayments in connection with an Election
10
Failu7e to keep Election Accounts
11
Law Commission oI India 16th Repo7t on Indian !enal Code, see, http://lawcommissionoIindianicin/101-
169/Repo7t16Vol1pdI, accessed on, Octobe7 9, 2011
12
Law Commission 170th Repo7t on Electo7al ReIo7ms, see, http://wwwlawcommissionoIindianicin/lc170ht
m, accessed on, Octobe7 10, 2011
13
!a7a 920, ibid
14
!a7a 4, ibid
1
Repo7t oI National Commission to Review the wo7king oI Constitution, 2002, see, http://lawminnicin/nc7
wc/Iinal7epo7t/v1ch4htm, accessed on, Octobe7 10, 2011
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conclusion oI the t7ial Io7 that oIIence In case a pe7son is convicted oI any oIIence
by a cou7t oI law and sentenced to imp7isonment Io7 six months o7 mo7e the ba7
should apply du7ing the pe7iod unde7 which the convicted pe7son is unde7going the
sentence and Io7 a Iu7the7 pe7iod oI six yea7s aIte7 the completion oI the pe7iod oI the
sentence II any candidate violates this p7ovision, he should be disqualiIied Also, iI
a pa7ty puts up such a candidate with knowledge oI his antecedents, it should be
de7ecognised and de7egiste7ed
16

O Any pe7son convicted Io7 any heinous c7ime like mu7de7, 7ape, smuggling, dacoity,
etc should be pe7manently deba77ed I7om contesting Io7 any political oIIice
17

O C7iminal cases against politicians pending beIo7e Cou7ts eithe7 Io7 t7ial o7 in appeal
must be disposed oII speedily, iI necessa7y, by appointing Special Cou7ts
18

O A potential candidate against whom the police have I7amed cha7ges may take the
matte7 to the Special Cou7t This cou7t should be obliged to enqui7e into and take a
decision in a st7ictly time bound manne7 Basically, this cou7t may decide whethe7
the7e is indeed a p7ima Iacie case justiIying the I7aming oI cha7ges
19

O The Special Cou7ts should be constituted at the level oI igh Cou7ts and thei7
decisions should be appealable to the Sup7eme Cou7t only The Special Cou7ts should
decide the cases within a pe7iod oI six months Fo7 deciding the cases, these Cou7ts
should take evidence th7ough Commissione7s
160

O As pe7 the p7ovisions contained in sub-section (4) oI section 8 oI the Rep7esentation
oI the !eople Act, 191, the disqualiIication 7eIe77ed to in sub-Sec (1) and (2) oI that
section shall not take eIIect Io7 a pe7iod oI th7ee months I7om the date oI conviction iI
the pe7son convicted is a membe7 oI !a7liament o7 the Legislatu7e oI a State
oweve7, iI within the said th7ee months an appeal o7 application Io7 7evision is
b7ought in 7espect oI the conviction o7 sentence, the disqualiIication will not ope7ate
until that appeal o7 application is disposed oI by the cou7t
161

O The Commission 7ecommended that the beneIit oI this p7ovision should be available
only Io7 the continuance in oIIice by a sitting Membe7 oI !a7liament o7 a State
Legislatu7e The Commission 7ecommended that the aIo7esaid p7ovision should

16
!a7a, 4122 Repo7t oI National Commission to Review the wo7king oI Constitution, 2002, see, http://lawmin
nicin/nc7wc/Iinal7epo7t/v1ch4htm, Accessed on, Octobe7 12, 2011
17
!a7a, 4123, ibid
18
!a7a, 4124, ibid
19
!a7a, 412, ibid
160
!a7a, 4126, ibid
161
!a7a, 4127, ibid
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3 !7oject Repo7t

suitably be amended p7oviding that this beneIit shall not be available Io7 the pu7pose
oI his contesting I7esh elections The Commission also 7ecommended that the
p7oposed p7ovision laying down that a pe7son cha7ged with an oIIence punishable
with imp7isonment which may extend to Iive yea7s o7 mo7e should be disqualiIied
I7om contesting elections aIte7 the expi7y oI a pe7iod oI one yea7 I7om the date the
cha7ges we7e I7amed in a cou7t oI law should equally be applicable to sitting membe7s
oI !a7liament and State Legislatu7es as to any othe7 such pe7son
162

On Corrupt Practices and lection Petitions
O Section 8A oI the Rep7esentation oI the !eople Act, 191 (R!A) p7ovides Io7
disqualiIication on g7ound oI co77upt p7actices The cu77ent p7actice is that once the
igh Cou7t hands out the judgement on an election petition holding the candidate
guilty oI co77upt p7actices, the case goes to the Sec7eta7y oI the conce7ned State
Legislatu7e o7 the Sec7eta7y Gene7al Lok Sabha o7 Rajya Sabha, as the case may be
It is then Io7wa7ded to the !7esident who in tu7n Io7wa7ds it to the EC Only then
does the EC get ju7isdiction to tende7 its opinion to the !7esident based on which the
disqualiIication o7de7 is issued
163

O Election petitions at p7esent a7e conside7ed by the igh Cou7t The igh Cou7t is
expected to give judgement on all election petitions within 6 months, but in actual
p7actice, it takes much longe7 and oIten the petitions 7emain pending Io7 yea7s and in
the meantime even the Iull te7m oI the ouse expi7es Thus, all election-7elated
petitions should be hea7d by a sepa7ate judicial set up and these petitions should be
decided within a time bound pe7iod within 6 to 12 weeks by dedicated benches oI
special cou7ts The Commission 7ecommended that the election petitions also be
decided by special cou7ts p7oposed above In the alte7native, special election benches
may be constituted in the igh Cou7ts and ea7ma7ked exclusively Io7 the disposal oI
election petitions and election disputes
164



162
!a7a, 4128, !a7a, 4122 Repo7t oI National Commission to Review the wo7king oI Constitution, 2002, see,
http://lawminnicin/nc7wc/Iinal7epo7t/v1ch4htm, Accessed on, Octobe7 14, 2011
163
!a7a, 4131, ibid
164
!a7a, 4132, ibid
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CHAPTER VII
CONCLUSION
Election constitute a basis oI any democ7atic society, it is a p7ocess which make it diIIe7ent
I7om othe7 Io7ms like Ty7anny, Mona7chy, Oliga7chy etc This p7ocess instills conIidence and
sense oI belongingness in people in the gove7nment with a belieI that thei7 g7ievances and
p7oblems will be hea7d and so7ted out But those who believe in the inIluence oI muscle
powe7 in elections do not believe in soliciting votes I7om electo7ate by 7easoning and
a7gument
C7iminalization oI the politics is the g7eatest dange7ous Iacto7 oI the p7esent political system
A la7ge numbe7 oI c7iminals have acqui7ed political positions in the count7y and thei7 numbe7
is inc7easing It is now an established Iact that c7iminalization oI politics and co77uption in
high levels is dest7oying the ediIice oI ou7 pa7liamenta7y democ7acy The black money
ea7ned by neIa7ious t7ades is misused to develop a netwo7k oI muscle powe7 to be used by
politicians du7ing elections Io7 violence, booth captu7ing, 7igging, intimidating vote7s and
even killing 7ival candidates In Ankul Chandra Pradhan v &nion of India,
16
the Sup7eme
Cou7t has obse7ved that c7iminalization oI politics is the bane oI society and negation oI
democ7acy The need oI the hou7 is to p7otect and p7ese7ve ou7 democ7atic values by
implementing va7ious 7eIo7m measu7es in 7elation to electo7al oIIences
Thus !a7liament must conside7 the legal inIi7mities existing in the p7ovisions oI election law
7elating to ent7y oI c7iminals in politics ClassiIication between gene7al c7iminals and sitting
membe7 c7iminals unde7 Sec 8 oI the R! Act, 191 must be omitted The7e should not be
any distinction in banning the 7ight to vote and 7ight to contest election in so Ia7 as it 7elates
to c7iminals Once cha7ges a7e I7amed by the Cou7t in connection with an election oIIence
against any pe7son, he should be disqualiIied Io7 contesting elections to the legislative bodies
St7ingent punishment against any violation oI election law and its eIIicient implementation
should be ensu7ed by app7op7iate amendments in the R! Act, 191 Special cou7ts may be
c7eated Io7 hea7ing cases oI election c7ime Duplicity in the legal p7ovisions should be
avoided by 7eI7aming the 7elevant p7ovision in one statute Dacoits, maIias, goondas and
othe7 c7iminals should be p7ohibited I7om becoming election agents, counting agents o7
polling agents App7op7iate legislative changes should be b7ought about Finally, the law

16
AIR 1997 SC 2814
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4 !7oject Repo7t

should make it obligato7y Io7 all political pa7ties that they will not give tickets to c7iminals
The Election Commission should have powe7 to de-7egiste7 such pa7ties which a7e Iound
putting-up c7iminal candidates Di7ections oI the Sup7eme Cou7t must be Iollowed on this
aspect The Code oI Conduct Io7mulated by the Election Commission is unique in India It is
submitted that the violation oI Model Code oI Conduct should be made an electo7al oIIence
unde7 the p7ovisions oI the R! Act, 191 In the absence oI legal sanction to it, violation oI
the Code cannot be 7uled out
Thus it is only by 7eso7ting to these measu7es and by b7inging about the essential 7eIo7ms in
I!C and R!A that the sanctity oI elections may be maintained and 7etained in Indian
Democ7acy
Activities like Snatching votes, Booth captu7ing is the ve7y antithesis oI democ7acy The
election Commission has taken ste7ne7 measu7es and sometimes issued shoot at sight o7de7s
o7 counte7manding oI polls Iu7the7 law has been amended in o7de7 to instil conIidence oI
democ7atic society in people The gove7nment has taken Iu7the7 measu7es like deployment oI
mo7e secu7ity Io7ces, photo identity ca7d oI vote7s and use oI elect7onic voting machines
which p7oved ve7y useIul in 7est7aining these types oI electo7al oIIences 'The drastic
difference we have seen is a steep fall in booth capturing from ten to one per cent. The three
:ones - astern &P and ihar, Maharashtra and Tamil Nadu, MP and Jharkhand where
votes were tampered to around 10 per cent but after the launch of JMs the number came
down to one per cent` said by an expe7t in poll su7vey
166



166
Booth Captu7ing is isto7y Now, Business Standa7d, Satu7day, August 2 , 2009; http://wwwbusiness-
standa7dcom/india/news/booth-captu7ing-is-histo7y-now-thanks-to-evms/7164/on accessed on Octobe7 14,
2011
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BIBLIOGRAPHY
STATUTES
O C7iminal !7ocedu7e Code, 1973
O Indian Elections OIIences and Inqui7ies Act, 1920
O Indian !enal Code, 1860
O Rep7esentation oI !eople Act, 191
O The Constitution oI India, 190
RE!ORTS
O Law Commission 170
th
Repo7t on Electo7al ReIo7ms
O Law Commission oI India 16
th
Repo7t on Indian !enal Code
O Law Commission oI India 42
nd
Repo7t on Indian !enal Code
O Repo7t oI National Commission to 7eview the wo7king oI Constitution, 2002
BOOKS
O Anand Ballabh KaIaltiya, emocracy and lection Laws, Deep and Deep
!ublications (!) Ltd, New Delhi, 2003
O Basu Du7ga Das, Shorter Constitution of India, Wadhwa & Company Law !ublishe7s,
New Delhi, 2006
O Chand7achud V & Manoha7 VR, Ratanlal & hiraflals The Indian Penal Code,
Wadhwa Nagpu7, New Delhi, 2006
O Gau7 KD, Commentary on Indian Penal Code, An Exhaustive Section Wise
Commenta7y, Unive7sal Law !ublishing Company, New Delhi, 2006
O Jain M!, Indian Constitutional Law, Wadhwa and Company Nagpu7, New Delhi,
2003
O Kathu7ia R!, Law oI Crime and Criminology, xhaustive & Criminal Commentary
on Indian Penal Code, Vinod !ublications (!) Ltd, Delhi, 2007,
O !7akash Abhinav, Law Relating to lections, Unive7sal Law !ublishing Co!vt Ltd,
New Delhi, 2006
O Rathnaswamy !, lectoral Reforms. Law and Institutions of India and orld, Book
Well, New Delhi, 2004
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O Vibhute KI, PSA Pillais Criminal Law, Lexis Nexis Butte7swo7th, Wadhwa, Nagpu7, 10
th

ed 2006
JOURNALS
O Reddy C Rammanoha7, conomic and Political eekly, Sameeksha T7ust
!ublication, New Delhi, Vol XLIV No 39, Sep 26- Oct 2, 2009
O Venkatesan V, Crime and politics, Front Line, New Delhi, Vol 18 -Issue 26, Dec
22, 2001 - Jan 04, 2002
WEB SOURCES
O http://ecinicin/ecimain/Electo7alLaws/compendium/vol3pdI
O http://ecinicin/ecimain/Electo7alLaws/andBooks/MANUALOFLAWVOLIp
dI
O http://wwwandnicin/election/modelconductpdI
O http://wwwelectionstnnicin/MCC/Model20CodeMinsSecysODspdI
O http://wwwhinduonnetcom/Iline/Il1826/18260870htm
O http://wwwindian-electionscom/model-code-oI-conducthtml
O http://wwwlegalse7viceindiacom/A7t/l290-C7iminalization-oI-!oliticshtml
O http://wwwthehinducom/nic/modelcodeviolationspdI
O http://wwwbusiness-standa7dcom/india/news/booth-captu7ing-is-histo7y-now-thanks-to-
evms/7164
MISCELLANEOUS
O Model Code oI Conduct Io7 Guidance oI !olitical !a7ties and Candidates, Election
Commission oI India, New Delhi, 2009
O !7oposed Electo7al ReIo7ms, !ublication Division, Election Commission oI India,
New Delhi, 2004


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REMARKS
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