OFFENCES RELATED TO ELECTION

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This article was written by Shruti Kapoor, a student of Lucknow University.

INTRODUCTION

‘Freedom of choice’ is called the essence of democratic election. In all democratic country election/selection of particular person of their choice among the other candidates for discharging certain duties is considered to be natural right of individual. With the passage of time many laws were also enacted for effective working of election systems. The acts were made with object to provide procedure regarding conduct of election of House of Parliament and House or Houses of the Legislature of each state, the qualification and disqualification for membership of House, offenses or corrupt practice related to such election, process of solving election dispute, registration of political parties etc. Everyone want victory and in election also this desire of candidate, his parties follower and agent often causes them to adopt unfair and unjust modes. PART XV Article 324 of the Constitution of India empowers Election Commission to superintendence, direction and control of election.

Corrupt practices and offences related to election are those which interfere in the free exercise of right to vote and includes bribery, undue influence etc. In United States corrupt practices are regulated by both State and Federal Legislation. The principle Federal Legislation rested on the Corrupt Practices Act of 1925, the Hatch Acts of 1939, 1940, and the Labour Management Act 1947[1]. In earlier legislation of United Kingdom there was Corrupt and Illegal Practices Prevention Act, 1883 for corrupt practices and offenses related to election. The basic thrust of this legislation was the placing of the onus on the election agent for any infringement of the provisions. Corrupt practices under this Act included; (1) bribery, (2) treating, (3) undue influence, (4) personation and (5) unauthorised expenditure. Illegal practices included, paid conveyancing, advertising, hiring without authority committee rooms; voting without qualification; false statements made about candidates; disturbance of public meetings during elections; printing; publishing or posting any bill placard or poster not bearing on its face the name and address of the printer and publisher and illegal proxy voting. The expenditure aspect was further controlled by the latter enactment of 1918 and 1928 and thereafter the Representation of People Acts, 1948 and 1949.[2] In England, the latest law governing the field is occupied by corrupt practices, is the Representation of the People Act. 1983.[3]

In India the first law related to corrupt practice was the Government of India Act, 1919. Later, The Indian Election Offence and Inquiry ACT, 1920 was enacted which also bring certain amendment in Indian Penal Code as a result of which person found guilty of corrupt practise is disqualified. The first statute enacted by our parliament against corrupt practice and offence related to election was the Representation of the People Act, 1951( herein after referred as RP Act)which is amended from time to time. The main object of concept of corrupt practice is to enable the voters to exercise the right to vote freely and fearlessly which is foremost important for true representation of the people in the Government.

LIST OF OFFENCES RELATED TO ELECTION 

Corrupt Practices at Election

1. As per section3 (1) (vii) of the SCHEDULED Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 any person who forces or intimates a member of SC/ST note to vote or to vote a particular candidate or to vote in a manner other than provided by law commits an offence.
2. Bribery: Section 123(1) of RP Act and 171B/171E of IPC defines bribery as corrupt practices. Bribery is considered as inducement affecting electoral work. The offence of bribery is considered to be committed by a person who provide gratification as well as by a person who accept such gratification. Gratification to any person for inducing him or any other person to exercise electoral right, or gratification as a reward for exercising electoral right is a corrupt practice punishable with 1 year imprisonment, or fine, or both.
3. Undue influence at election: Section 123(2) of RP Act and section 171C/171F of IPC talks about undue influence at election. Any person who directly or indirectly interfere or attempt to interfere with the free exercise of any electoral right commits the offence of undue influence and shall be punished with 1 year imprisonment or fine or both as per provision of IPC.
4. Threating any candidate or voter, or any person in whom any of them is interested, with injury of any kind or make them believe that he or any person in whom he is interested will be rendered an object of divine displeasure or spiritual pleasure, shall be deemed to interfere with free exercise of electoral right as per section 171C (2).
5. The appeal by candidate or his agent or any person with consent of candidate from any person on the ground of his case, religion, race, community, language etc. for prejudicially affecting the election of any candidate commits the corrupt practice under 123 (3) of RP Act.Similarly, promoting or attempt to promote feeling of enmity or hatred between different classes of citizen on the ground of case, religion, race etc commits corrupt practice as per Section 123(3A) of RP Act.
6. Section 123(3B) of RP Act provides the propagation of practice of sati or its glorification by candidate or his agent or any other person with consent of candidate as corrupt practice.
7. Publication of false statement in relation to personal character or conduct of any candidate by a candidate or his agent or any person with consent of candidate, with intention to prejudice the prospect of the candidate election is a corrupt practice under section 123(4) of RP Act. Whereas, Section 1741G OF IPC provides that if any false statements in relation to the personal character or conduct of any candidate is made or published with intention to affect the result of an election by any person shall be punished with fine.
8. Section 123(5) read with section 133 of RP Act make it very clear that if any person illegally hires or procures any vehicle for the free conveyancing of any elector other than candidate himself, member of his family or his agent, to or from any polling station commits an offence related to election and shall be punished with 3 month imprisonment and fine.
9. The incurring or authorizing of expenditure lit contravention of section 77[4].
10. The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person 1[with the consent of a candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election, from any person in the service of the Government and belonging to any of the following classes, namely:—
    1. Gazette officers;
    2. stipendiary judges and magistrates;
    3. members of the armed forces of the Union;
    4. members of the police forces;
    5. excise officers;
    6. revenue officers other than village revenue officers known as lambardars,  malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and such other class of persons in the service of the Government as may be prescribed[5].
11. Booth capturing by a candidate or his agent or other person is also a corrupt offence under section 123(8) of RP Act. `Booth capturing’ includes –
12. seizure of a polling station or a place fixed for the poll by any person making polling authorities surrender the ballot papers or voting machines;
13. or allowing only his or their own supporters to exercise their right to vote and prevent/coerce others from free exercise of their right to vote;
14. seizure of a place for counting of votes[6]. The aforesaid offence is punishable with 3to5 yrs imprisonment and fine, if the offence is committed by person in government service, and 1to 3 yrs and fine for others.

12. Personation at election: Any person at election applies for a voting paper or votes in the name of another person, whether living or death, or applies for voting at same election in which he has already voted shall be punished with imprisonment for 1 year imprisonment or fine or both under section 171D/171F of IPC.

13. If any person without permission of candidate ( general or specific) incurs or allow expenses on account of holding meeting or in any other way for the purpose of promoting such candidate, shall be liable for fine upto Rs, 500 under section 171H of IPC.
14. Filing of false affidavit or concealing any information in the affidavit filed by the candidate is considered as offence under Section 125A of RP Act. Any person who commits aforesaid offence will be punished with imprisonment for 6 month or fine or both.
15. Section 31 of RP Act provides that false declaration in connection with preparation, revision or correction of election roll, or inclusion or exclusion of any entry in or from the electoral roll is offence punishable with 1 year imprisonment or fine or both.

Electoral Offences Concerning Meeting:

1. Section 125 of the RP Act 1951 ,153A & 505 (2) of IPC provides that any person promote or attempt to promote enmity or hatred on ground of race, case, community or language shall be punished with 3years imprisonment or fine or both. The action is considered to be electoral offence only when the same is done by candidate or by any other person or agent with his consent and he shall be punished with imprisonment which may extend to 3 years, or with fine, or both[7].
2. Public meeting in connection with election: section 126 RP Act provides that public meeting for election propaganda should be ended 48 hours before the hour fixed for the conclusion of the poll for any election and any person who contravenes the provision is to be punished with imprisonment which may extent to two year or with fine or with both.
3. Disturbance at public meeting during specific period: Disturbance at public meeting of a political character by any person is considered to be an electoral offence and is punishable of imprisonment up to 2 years or fine up to Rs. 250 or both[8]. The above provision applies only to those meeting which are held between the issue of notification calling upon to elect members and the date on which election is held.

III. Offence by Concerning Officer/ Persons Involved in Election Duty

1. Maintenance of Secrecy of voting: It is offence under Section 128 of RP Act if any officer, clerk, agent, or other person who perform any duty in connection with recording or counting votes at election doesn’t maintain secrecy of the voting and shall be punished with 3 month imprisonment or fine or both.
2. According to section 129 of RP Act no official connected with election shall do any act for the furtherance of the prospects of election of any candidate except giving vote. Any official connected with election commits such offence shall be punished with 6 month imprisonment or fine or both.
3. Breach of official duty in connection with elections: Under section 134 of RP Act breach of official duty in connection with election is considered as offence. The same shall be cognizable and punishable with fine upto Rs. 500. No legal proceeding shall lie against any such person for damage in respect of any act or omission as aforesaid[9].
4. Penalty for Government servants for acting as election agent, polling agent or counting agent: Any government servant who act as an agent (election, polling or counting) of a candidate at an election, shall be punished with imprisonment for 3 month or fine or both[10].

Act on Date of Poll, At or Near Polling Station which are Considered as Offence Related to Election.

1. Canvassing in near polling station: section 130 of RP Act prohibits on date of poll:-

• Canvassing in or near polling station; or
• Soliciting the vote of any elector; or
• Persuading any elector not to vote for any particular candidate or at election; or
• Exhibiting any notice or sign related to the election other than official notice. Any person who contravenes the provision shall be punished with fine upto Rs. 250.

2. Disorderly conduct in or near polling station: Section 131 of RP Act provides that any person on the date of poll shouting in disorderly manner or using loudspeakers, megaphones etc. in order to disturb poll can be arrested and apparatus can be seized. Police officer can arrest such person on the order of Presiding Officer. The offence is punishable with 3 month imprisonment, or fine, or both.
3. Misconduct at the polling station: Under Section 132 of RP Act any person who misconduct himself, or fail to obey lawful directions during the hour, fixed for the poll at any polling station may be removed by the presiding officer or police officer or other authorized person. Further, if the person re-enter the polling station without permission of the presiding officer, he shall be punished imprisonment upto 3 month, or fine, or both if the offence is cognizable.

Going Armed At or Near Polling station

Section 134B of RP Act prohibits any person to go armed with anus of any kind at or near polling station other than presiding officer, police officer and any person appointed to maintain peace and order. Any person who contravene the provision shall be punished with imprisonment upto 2 yrs or fine or both.

Tampering of EVM/ Ballot Papers

1. Removal of Ballot Paper: If any person remove EVM/ Ballot Paper or the presiding officer has reason to believe the same, he may arrest that person or order search of that person. The offender will be punished with 1yr imprisonment or fine or both under section 135 of RP Act.
2. If any person fraudulently defaces or fraudulently destroys any ballot paper or EVM or the official mark on any ballot paper or EVM or puts into any ballot box anything other than the ballot paper, or pastes any paper, tapes etc. on the symbol/names/ballot button of EVM for the purpose of the election commits an offence[11].If the offence is committed by any officer or clerked employed on election duty, he shall be punished with 2 yrs imprisonment or fine or both and 6 month imprisonment or fine for other.

VII. Denying Someone Right to Vote

Under section 135B of RP Act employer shall be liable for fine upto Rs. 500 for not granting of paid holiday to the employees who are entitled to vote.

CONCLIUSION

The conclusion emerges that free and fair election is the basis of democratic form of government. To ensure free and fair elections many laws were also made in past like the Representation of the people ACT, 1951, The Election Commission Act, 1991 etc. RP Act 1951 is amended six times i.e in 1956, 1958, 1961, 1966, 1975 and 1999. The most of the amendment curtails the scope of corrupt practices. It is the main statute which makes provision for controlling corrupt practices and offence related to election. The Tarkunde Committee of 1976 made recommendation to check the misuse of power by Ministers and Political party.

 On the basis of above discussion, the researcher would like to make suggestion that

 1.Election commission should not solely be responsible for free and fair election, government as well as electorates should all be made responsible for free and fair election.

2. Citizens of India should not only make aware of right to vote but also of right to elect freely and fairly and of bad consequences if involving in corrupt practices at election.
3. Penalty in case of electoral offences or corrupt practices related to election is very less which is the main reason of increase in offence is related to election. Penalty should be increase so that before committing such offence, people think twice.

[1] See, Ibid, Vo/.8, 123-24.

[2] See, Halsbury’s Laws of England, Vol.J4, 4, 1956.

[3] See, Halsbury ‘s Statutes of England and Wales, Vol.J 5, 73-74, 1986.

[4] See section 123(6) of RP Act, 1951

[5] See, section 123(7) of RP Act, 1951

[6] See, section 135A of RP Act, 1951

[7] See, section 505(2) of IPC Act, 1908

[8] See, section 127 of RP Act, 1951

[9] See, section 134 of RP Act, 1951

[10] See, section 134A OF RP Act, 1951

[11] See, section 136 of RP Act, 1951