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INDEX

PARTICULARS PAGE NO.

INTRODUCTION 2-3

OBJECTRIVES 3

ELECTION OFFENSES IN
4-5
INDIA
5-7
IPC PROVISIONS

CRIMINALISATION OF
7-8
ELECTIONS
CONSTITUTUIONAL
8-9
PROVISIONS
IMPORTANCE OF VOHRA
9-10
COMMITTEE

JUDICIAL OBSERTVATIONS 10-13

CONCLUSION 14-18

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INTRODUCTION

Criminalisation of Elections and Politics is one major problem being faced by our country today.
Pure and sacred electoral process required for good governance is nowhere to be seen in our system
as you can see increasing number of criminals in the legislature at state as well as centre. According
to a recent analysis of 541 of the 543 lawmakers by India's Association for Democratic
Reforms, the country's current parliament has 186 members (about 34 percent) facing criminal cas-
es. Previous reports show that the number has steadily risen since 2004.1

No political party today hesitate to give tickets to any person without doing any background check
till the time they have a fair chance of winning the election. This paper is to examine the criminal
offences taking place during the election process i.e from the time of filling the nomination to the
declaration pf the result.
Elections are considered to be a process to achieve democracy and as indispensable element in the
establishment and continuation of any democracy. India is having a Constitution that guarantees a
democratic republic to its Citizens. This is based on adult franchise, though the question is always
there whether right to vote is a fundamental right or a statutory right under democracy in India..
The Constitution also provides the free democracy of India with an independent Constitutional Au-
thority to conduct fair and free elections in the country called the Election Commission of Indiaa.
Elections are firmly a part of the Constitutional mechanism and are an attribute of the promise of
democracy. They are a part of the political process that establishes democratic governance. The re-
port below would offer both these perspectives with regards to criminal offences in elections or re-

1 https://www.huffingtonpost.in/entry/india-parliament-criminal-charges_n_5365225
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lated to elections in India. The subtle difference between these perspectives is that Constitution
gives the right outlook while political perspective is philosophical in nature.

Apart from terrorism, the most serious problem being faced by the Indian democracy is
criminalisation of politics. At times, the concern has been expressed against this obnoxious cancer-
ous growth2 proving lethal to electoral politics in the country. Purity and sanctity of electoral
process, sin qua non for a sound system of governance appears to have become a forgotten thing in
view of the entry of a large number of criminals in the supreme legislative bodies at central and
state level. Sri G.V.C Krishnamurthy, the election commissioner (as he then was) has pointed out
that almost forty members facing criminal charges were the members of the Eleventh Lok Sabha
and seven hundred members of similar background were in the state legislatures.3
Even the political parties out of the glamour of political power and consequent benefits do
not hesitate in giving tickets to the criminals and do not object to their use in winning the elections.
Thus, politicisation of criminals needs to be checked by all means at disposal. This paper examines
criminalisation of politics and convictional disqualifications to restrict the entry of criminals in the
elective system.

OBJECTIVES
1. To develop a critical thinking about the development of this branch of law. The same will be
based within the premise of Offences related to Elections in India, the focus being on election
process.
2. To familiarise the reader with existing legal framework on Elections in India and also giving
them an idea of the consequences of non-conformance with statutory provisions.
3. To critically analyse the present regime of laws with stress on fair elections as the fundamental
point of democracy.
4. To learn the process of development/reforms in the field of election laws.
5. Legislations or Amendments
6. Judicial Contributions
7. To sketch the probable future developments by studying the report of Law Commission of In-
dia.

2 A mere reference to Vohra Committee Report would be sufficient in this connection.

3 See Rabi Roy, “Electoral Reforms: Need of the Hours,” 13 Politics India, 7 at 8 (1998).
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ELECTION OFFENCES IN INDIA
A. Promoting Enmity between classes of citizens in connection with election
The promotion of, or attempt to promote enmity or hatred between different classes of Indian citi-
zens on grounds of religion, race, caste, community or language feelings is an electoral offence.
Any person indulging in such an act is punishable with imprisonment for a term which may extend
to three years or with fine or both.

B. Disturbance at Election Meetings during the Specified Period


Disturbance at an election meeting is prohibited and it is an electoral offence to do so. Any person
who at a public meeting of a political character acts, or incites others to act, in a disorderly manner
for the purpose of preventing the transaction of business for which a meeting has been called com-
mits an electoral offence and is liable for punishment with fine which may extend to Rs. 250.
Public meetings which are held between the date of issue of notification calling the election and the
date on which such election ends only are covered by the above prohibition. The disturbance caused
at election meetings during the other periods would be governed by the general law.
If the Chairman of an election meeting reports to any police officer about any person acting in dis-
orderly manner at the meeting, such police officer may require that person to declare to him imme-
diately his name and address and if that person refuses or fails to declare his name and address or if
the police officer reasonably suspects him of giving false name or address the police officer may
arrest such person without warrant.

C. Officers etc., at Elections not to Act for Candidates or to Influence Electors


No District Election Officer or Returning Officer or Assistant Returning Officer or Presiding Offi-
cer or a Polling Officer or any officer or clerk appointed by the Returning Officer or by the Presid-
ing Officer to perform ~ny duty in connection with an election shall, in the conduct or the manage-
ment of the election do any act for the furtherance of the prospects of the election of a candidate,
other than giving of his own vote. These officers and any member of a police force are prevented
from (a) persuading any person to give his vote at an election, or (b) dissuading any person from
giving his vote at an election in any manner. Any contravention in this regard is punishable with
imprisonment which may extend to six months or with fine or with both. Further, the above offence
is cognizable.


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D. Penalty for Government Servants for Acting as Election Agents, Polling Agent or Counting
Agent
If any person in the service of government acts as an election agent or a polling agent or a counting
agent of 'a candidate at an election he commits an electoral offence for which he may be punished
with imprisonment for a term extending up to 3 months or with fine or with both.

IPC PROVISIONS
171A. ‘‘Candidate", ‘‘Electoral right" defined -For the purpose of this chapter-


(a) "candidate" means a person who has been nominated as a candidate at any election;

(b) "electoral right"means the right of a person to stand or not to stand as, or to withdraw from be-
ing a candidate or to vote or refrain from voting at an election.


171B, Bribery-(1) Whoever-
(i) gives a gratification to any person with the object of inducing him or any other person to exer-
cise any electoral right or of rewarding any person for having exercise any such right; or

(ii) accepts either for himself or for any other person any gratification as a reward for exercising
any such right or for inducing or attempting to induce any other person to exercise any such
right, commits the offence of bribery:

Provided that a declaration of public policy or a promise of public action shall not be an offence
under this section.

(2) A person who offers or agrees to give ,or offers or attempts to procure, a gratification shall
be deemed to give gratification.

(3) A person who obtains or agrees to accepts or attempts to obtain a gratification shall be
deemed to accept a gratification, and a person who accepts a gratification as a motive for doing
what he does not intend to do, or as reward for doing what he has not done , shall be deemed to
have accepted the gratification as a reward.

171C. Undue influence at elections.-(1) Whoever voluntarily interferes or attempts to interfere
with the free exercise of any electoral right commits the offence of under influence at an elec-
tion.

(2) Without prejudice to the generally of the provisions of sub-sections (1) whoever-

(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested,
with injury of any kind, or

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(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom
he is interested will become or will be rendered an object or Divine displeasure or of spiritual
pleasure, shall be deemed to interfere with the free exercise of the electoral right of such candi-
date or voter, within the meaning of sub-section (1)

(3) A declaration of public policy or a promise of public action, or the mere exercise of a legal
right without intent to interfere with an electoral right, shall not be deemed to be interference
within the meaning of this section.

171D. Personation at elections- whoever 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 who-
ever abets, procures or attempts to procure the voting by any person in any such way, commits
the offence of personation at an election.


171E Punishment for bribery.- Whoever commits the offence of bribery shall be punished with
imprisonment of either description for a term which may extend to one year , or with fine, or
with both;

Provided that bribery by treating shall be punished with fine only.

Explanation-‘Treating’ means that form of bribery where the gratification consists in food,
drink, entertainment, or provision.


171F. Punishment for undue influence or personation at an election.-Whoever commits the of-
fence of undue influence or personation at an election shall be punished with imprisonment of
either description for a term which may extend to one year, or with fine, or with both.


171G.False statement in connection with an election.- Whoever 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.171H. Illegal
payments, in connection with an election-Whoever without the general or special authority in
writing of a candidate incurs or authorises expenses on account of the holding of any public
meetings, 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;

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Provide 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 ex-
penses with the authority of the candidate.

CRIMINALISATION OF ELECTIONS
The basic reason behind the criminalisation of elections is making criminals the political con-
tenders. Now the question comes what is the need to make criminals the leaders?
The criminals help the political parties in multiple ways like they are capable of doing illegal activi-
ties like booth capturing, buying votes of needy people, influencing the voters by muscle power,
tampering the voting machines, and most important of all they have the money power. The past
scenario was as such that criminals worked behind the curtain and supported the political candidates
without coming in front but nowadays they themselves has taken the legislature in their hands. The
stage today is as such that politicians boast of there criminal connections. Election commission re-
quires all the prospective candidates to file an affidavit stating all the criminal charges being faced
by them but this hardy has made any affect in real situation. The supreme court of India and Elec-
tion commission has taken many steps to reform this system since 1980s but the problem still per-
sists on a huge scale.

JAYALALITHA CASE-
One of the biggest mockery of the electoral system can be seen in the case of Jayalalitha. In 2001,
she had filed nominations from 4 different constituencies and all 4 of these were rejected by the re-
turning officers based on her conviction in which she was was sentenced for 3 years in a corruption
case.4 Section 8(3) of the Representation of the People's Act, 1951 disqualifies any person who has
been convicted by any court of law of our country. But later on disrespecting all such laws she was
sworn in as the chief minister of Tamil Nadu.5

4 Bignell, J 2000, Postmodern media culture, Edinburgh University Press, Edinburgh.

5 Special Leave Petition (crl.) 549 of 2000


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DGP OJHA CASE-
And then there are officers like D.P Ojha who ended up deciding to take the legislature in his own
hands as he believed that the scenario in Bihar couldn’t be improved unless the corrupt legislatures
don’t get replaced. What brought him here was his removal from the police force after he started
raising his voice against the Corrupt government prevailing at that time. He came into limelight
when he submitted a report revealing the links of the RJD MP Mohammed Shahabuddin with Pa-
kistan’s ISI and other international criminal gangs. His candidature was not accepted by any party
but he believed that people had confidence in him and this will turn into votes so he rn for the elec-
tion independently from Begusarai constituency of Bihar in 14th Lok Sabha but he lost against Ra-
jiv Ranjan of Janta Dal sadly.

CONSTITUTION: ELECTION RELATED PROVISIONS


Laws pertaining to the elections in India are contained in Part XV of the Indian Constitution. The
provisions mentioned in the Articles (324 to 329) cover all aspects of conducting elections starting
from inclusion of names in electoral roll to formulation of laws pertaining to elections.

Article 324: Superintendence, Direction and Control of Elections.


The Election Commission of India (EC) is the only entity that has been given whole and sole au-
thority to supervise, direct and control elections. According to Article 324, the Election Commission
should consist of the Chief Election Commissioner (CEC) and other Election Commissioners, who
will be appointed by the President. The Article gives the President and the Governor of the states
the responsibility to provide additional staff to the Election Commission to enable efficient dis-
charge of functions during the elections.

Article 325- Inclusion of Names in Electoral Roll


This Article provides for the one electoral roll for both Parliamentary and Assembly elections and
also provides for non-discrimination from inclusion in the electoral roll on the basis of religion,
race, caste and sex.

Article 326- Elections to the Parliament and State Assemblies Based on Adult suffrage
This Article provides that every person who has attained the age of 18 years or more and is a citizen
of India would be registered as a voter. The exception can take place is the person has been disqual-
ified on the basis of “non-residence, unsoundness of mind, crime or corrupt illegal practices.”
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Article 329- Prohibits Court’s interference in Electoral Matters
This Article prohibits courts interference in electoral matters. No court can question the validity of
any law related to the delimitation of constituencies or allotment of seats.

AMENDMENTS
Electoral reforms had led to a series of constitutional amendments. It was during the time of emer-
gency (1975 to be precise) when the 39th amendment of the Indian Constitution was enacted. The
amendment was made to place the election of the President, the Vice President, the Prime Minister
and the Speaker of the Lok Sabha beyond the scrutiny of the courts. The 52nd Amendment Act of
1985 set the provisions for disqualification of members of Parliament or State Legislature for de-
fecting to another political party after elections. The 73rd and 74th amendments ensure direct elec-
tion to all seats in Municipalities and Panchayats. The 73rd amendment also makes provisions for
reservation of seats for SCs, STs and women.

IMPORTANCE OF N.VOHRA COMMITTEE REPORT


Vohra Committee Report (1993)
It was in this backdrop and amidst alleged charges of corruption involving politicians and general
perception of criminalisation of politics, that the government of the day appointed on 9 July, 1993, a
Committee headed by Shri N.N. Vohra, the then Home Secretary, Government of India, to take
stock of all available information about the activities of crime syndicates/mafia organizations who
allegedly had developed links with and were being protected by some Government functionaries
and political personalities. The Committee after considering the matter presented its report to the
Government of India which laid it before both Houses of Parliament on 1 August 1995. The report
was discussed in the Houses of Parliament on 8 , 23 and 24 August, 1995. The Committee in its
report, inter alia, pointed out that “the nexus between the criminal gangs, police, bureaucracy and
politicians” had come out clearly in various parts of the country. The existing criminal justice sys-
tem, which was essentially designed to deal with the individual offences/crimes, was unable to deal
with the activities of the mafia; the provisions of law in regard to economic offences were found to
be weak and there were insurmountable legal difficulties in attaching/confiscating the properties
acquired through mafia activities.

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The report suggested setting up of a nodal agency under the Ministry of Home Affairs, Government
of India, to be handled directly by the Union Home Secretary, who would be assisted by one or
more selected officers of the Ministry for the collation and compilation of all information received
from different intelligence agencies. Subsequently, an All-Party Meeting was held on 15 September
1995, under the Chairmanship of the then Union Home Minister, Shri S.B. Chavan, to look into the
whole gamut of criminal-politician nexus and the related issue of declaration of assets and liabilities
by the Members of Parliament and Ministers. The points, which inter alia, constituted the agenda
were :

1. Setting up of a Parliamentary Committee on Ethics as distinct from the Committee of Privileges


which would act as a guardian on the activities of members of Parliament.

2. Adoption of a Code of Conduct at the level of political parties to ensure a cleaner public
life, e.g., not to give party tickets to persons having criminal record.

3. All political parties should have open audited accounts which must be published annually.

4. Giving more teeth to the Nodal Group set up as a consequence of the recommendations of the
Vohra Committee Report.

5. Changes in the legal system, simplification of the procedure and dispensation of quick justice.

JUDICIAL OBSERVATIONS

The courts are well aware of the problem of criminalization of politics but the politics is an area
where courts do not want to be involved actively. In Deepak Ganpat Rao Salunke V state of Maha-
rashtra6 . The Deputy Chief Minister of Government of Maharashtra in a public meeting made the
statement that if Republican Party of India supported the Shivesena BJP alliance in the Parliamen-
tary Election he would see that a member of RPI was made Deputy Chief Minister of the State. It
was held that the above statement did not amount bribery as defined under section 171 B as the of-
fer was made not to an individual but to RPI with the condition that it should support BJP-Shivsena
alliance in the election. Thus seeking support of a political party in lieu of some share in the politi-
cal power does not amount gratification under S. 171-B of the Penal Code.

6 (1999) Cr LJ 1224 (S.C.).


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In Raj Deb V Gangadhar Mohapatra7 a candidate professed that he was Chalant Vishnu
and representative of Lord Jagannath himself and if any one who did not vote for him would be sin-
ner against the Lord and the Hindu religion. It was held that this kind of propaganda would amount
to an offence under S. 171 F read with S 171C.
The remedies provided in IPC have not proved to be effective because once the election is
over, everything is forgotten. On the other hand, convictional disqualification for candidature ap-
pears more effective. However, judicial interpretation of S. 8(3) R.P. Act has not been very satisfac-
tory. An order of remission does not wipe out the conviction.8 For actual disqualification, what is
necessary is the actual sentence by the court.9 It is not within the power of the appellate court to
suspend the sentence; it can only suspend the execution of the sentence pending the appeal. The
suspension of the execution of the sentence (imprisonment of not less than two year) does not re-
move the disqualification, when a lower court convicts an accused and sentences him, the presump-
tion that accused is innocent comes to an end.10
In T.R. Balu V S. Purushthoman11 it was alleged in the election petition that the returned
candidate had a bigamous marriage and it was admitted by him through an affidavit submitted at the
time of filing the nominations. Hence, his election should be declared void. Madras High Court up-
held the election on the ground that the returned candidate was never prosecuted nor found guilty or
punished for it.
There has been controversy with regard to the beginning of disqualification on the ground of
conviction. A person convicted for an offence is disqualified for being a candidate in an election. S.
8 of the R.P. Act sets different standards for different offences. According to S. 8(3) a person con-
victed of any offence and sentenced to imprisonment for not less than two years (other than the of-
fences referred to in S. 8(1) and (2)) shall be disqualified from the date of such conviction and shall
continue to be disqualified for a further period of six years since his release.

7 AIR 1964 Ori. 1.

8 Sarat Chandra V Khagendra Nath AIR 1961 SC 334.

9 V.K. Dewan, Election Law 23-24.

10 B.R. Kapur V State of T.N. AIR 2001 SC 3435; see also Dr. Mrs Kiran Jain & P.C. Jain, Chawla’s
Elections: Law & Practice, XXXV (VIIth ed. 1999, repr. 2002).

11 AIR 2006 Mad. 17.


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In K. Prabhakaran V P. Jayarajah12 the Court considered various issues. It considered the
question whether for attracting disqualification under S. 8(3) the sentence of imprisonment for not
less than two years must be in respect of a single offence or the aggregate period of two years of
imprisonment for different offences. The respondent was found guilty of offences and sentenced to
undergo imprisonment. For any offence, he was not awarded imprisonment for a period exceeding
two years but the sentences were directed to run consecutively and in this way the total period of
imprisonment came to two years and five months. On appeal, the sesssion court directed the execu-
tion of the sentence of imprisonment to be suspended and the respondent be released on bail during
the hearing of the bail. During this period, he filed his nomination paper for contesting election
from a legislative assembly seat. During the scrutiny, the appellant objected on the ground that the
respondent was convicted and sentenced to imprisonment for a period exceeding two years. The
objection was overruled and nomination was accepted by returning officer on the ground that al-
though respondent was convicted of many offences but he was not sentenced to for any offence for
a period not less than two years. The High Court also took the similar view but the Supreme Court
by majority took the different view.13 Chief justice Lohati speaking for the majority held that the
use of the adjective “any” with “offence” did not mean that the sentence of imprisonment for not
less than two years must be in respect of a single offence. The court emphasized that the purpose of
enacting S. 8(3) was to prevent criminalization of politics.14 By adopting purposive interpretation of
S. 8(3), the Court ruled that its applicability would be decided on the basis of the total term of
imprisonment for which the person has been sentenced.
The court also considered the question of the effect of acquittal by the appellate court on
disqualification. It may be recalled that the Supreme Court in Vidyacharan Shukla V Purushot-
tam Lal15 had taken a strange view V.C. Shukla was convicted and sentenced to imprisonment ex-
ceeding two years by the Sessions Court on the date of filing nomination but the returning officer
unlawfully accepted his nomination paper. He also won the election although conviction and sen-
tence both were effective. The defeated candidate filed an election petition and by the time when it
came before the High Court, the M P High Court allowed the criminal appeal of Shukla setting

12 AIR 2005 SC 688.

13 The bench consisted of Chief Justice Lohati and Justices S.V. Patil, B.N. Srikrishna, G.P. Mathur, K.C. Balkrish-
nan. Majority judgment was delivered by Justice R.C. Lohati whereas Justice K.C. Balkrishnan wrote dissenting
opinion.

14 Supra note 16 at 705.

15 (1981) 2 SCC 84.


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aside the conviction and sentence. While deciding the election petition in favour of the returned
candidate, the court referred to Mannilal V Parmailal16 and held that the acquittal had the effect of
retrospectively wiping out the disqualification as completely and effectively as if it had never exist-
ed. However Vidyacharan Shukla which had the effect of validating the unlawful action of the re-
turning officer and encouraging criminalization of politics was overruled by Prabhakaran. The
Supreme Court observed:
Whether a candidate is qualified or not qualified or disqualified for being
chosen to fill the seat has to be determined by reference to the date for the
scrutiny of nomination… The returning officer cannot postpone his decision
nor make it conditional upon what may happen subsequent to that date.17
It is submitted that the view taken in the instant case is correct and would be
helpful in checking the criminalization of politics.
Sec. 8(4) of the RP Act accords benefit to a sitting Member of Parliament or legislative as-
sembly if convicted for criminal offence. According to it, in respect of such member, no disqualifi-
cation shall take effect until three months have elapsed from the date of conviction or if within that
period appeal or application for revision is brought in respect of conviction or sentence until that
appeal or application is disposed of by the court. The controversial issue is whether the benefit of
this provision continues even after the dissolution of the house. There have been instances where
the members taking advantage of this provision contested the subsequent election in spite of the fac-
tion by the court during the tenure of the house. The Supreme Court considered the unethical aspect
also in Prabhakaran case. The court considered the structural position of S. 8(4) and justifications
for its retention. It held that “Subsection 4 would cease to apply no sooner the house is dissolved or
the person has ceased to be a member of that house.”18 Thus, it is another effort of the Court to
strictly check the criminalisation of politics.

16 (1970) 2 SCC 462

17 Supra note 34 at 699; The Court also overruled Mannilal V Parmai Lal, (1970) 2 SCC 462.

18 Id at 706
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CONCLUSION
The conclusion emerges that free and fair elections are the foundation of a democratic form of Gov-
ernment. The democratic set up of the government may be threatened if elections are not held in a
free and fair manner. To ensure this purity of electoral process, it becomes essential that the law
should extend full protection to the electorates against any fear, injury, misrepresentation, fraud and
other undesirable practices which may be indulged in by or on behalf of candidates at an election.
In order to protect the voters as well as the rival candidates against such intimidation or malprac-
tices. Law has declared certain activities as corrupt practices. To ensure purity of electoral process
as well as the implementation of the law and the rules relating to election, the Constitution of India
has by virtue of the provisions contained in Article 324 entrusted this task to an independent author-
ity known as the Election Commission. It may not be out of place to mention here that in the pre-
independence era, the Government of India Act, 1919 was the first legislation and the rules framed
thereunder declared corrupt practices as a ground to set aside election of a returned candidate if he
was found guilty, personally or through any person of committing corrupt practices in the election.
The Indian Election Offences and Enquiries Act. 1920 disqualified persons found guilty, of corrupt
pracrtices. It also amended the Indian Penal Code to include electoral offences in the code. Interest-
ingly the provisions were a virtual reproduction of the British Corrupt and Illegal Practices included
bribery, undue influence, personation publication of false statements, illegal expenditure in excess
of the prescribed limit and failure to file return or to file false return of election expenses. The mi-
nor corrupt practices included those which were indulged in without the connivance of the candi-
date or his agent personation, receipt of bribe, payment for conveyance of elector, hiring or use of
public conveyance, including expense without authority the hiring of liquor shops, and the issue of
circulars without printed and publishers name. Letter on the Corrupt Practice Order, 1936 does not
make any significant changes in the provisions regarding corrupt practices except dividing them
into three parts on the basis of penalty and disqualifications attached to them.
It has been asserted in the preceding discussion that free and fair elections are the foundation of a
democratic form of government It has also been maintained all throughout this study that for win-
ning elections, the candidates or their agents or other persons resort to underisable means and mal-
practices. The Representation of the People Act, 1951 is the main statute which makes provisions
for controlling such practices. Analysis of the provisions contained in Section 123 of this Act deal-
ing with corrupt practice and other related aspects reveal that despite and explicite statutory prohibi-
tion, corrupt practices have continued to influence the electoral process. Similarly, it has also been
noticed that the existing electoral machinery for enforcing the mandate of the law is also not fool-
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proof and over the years many shortcoming in the administrative set up of the electoral machinery
have come to light. All this calls for immediate reforms not only in the administrative set up but
also in the law dealing.with corupt practices as weJI. With this objective in view and tci strength the
legal machinery for ensuring free and fair eletions, the researcher would like to make the following
suggestion.
1. To ensure free and fair election is not only the responsibility of the Election Commission but
also the Government and the electorates as well. To signify this perspective the Constitution
must have a specific provision to that effect. Admittedly, the Constitution has envisioned an
independent machinery for elections. It also gives express recognition to the right of adult
suffrage. However, the right to have free and fair elections do not find a specific mention in
the body of the Constitution. Such a provision also becomes essential to test the validity of
subordinate legislation. Therefore, Article 326 of the Constitution which entitles a citizen to
be registered as a voter at and election should be amended suitably by inclusion of the words
"should be entitled to have free and fair election and caste his vote at such election".This
would also help in removing doubts which were expressed by the court in Indira Gandhi's
election case regarding the concept of free and fair elections.
2. The Representation of People Act, 1951 vests important powers like removal of disqualifica-
tion and making recommendations thereto in the Election Commision which primarily is
concerned with the conduct of elections. The proper forum for adjudication of disputes con-
cerning elections are the High Courts and the Supreme Court. When a candidate has been
found guilty of corrupt practices, his election is ordered to be set aside by the court. For
what period he should be disqualified for contesting the election again, the question has
been left to the determination of the President of India who shall be advised in this regard by
the Election commission. This provision which is incorporated in Section 8A of the Act,
apears to be absurd.ln our submission the questions whether a candidate found guilty of such
practices should be disqualifed or not should not be left to the decision of the executive. On
the contrary, such a question must be left to the decision of the Court which has adjudged
the candidate guilty of the alleged corrupt practice. It is, therefore, suggested that Section 8A
should be deleted alongwith Section 11Band consequently the provisions contained in Sec-
tion 11 A should be amended on the following lines. "11A- if any person, after the com-
mencement of this Act, is convicted of an offence punishable under Section 171E or Section
171F of the Indian Penal Code (45 of 1960) or under Section 125 or Clause (a) of sub-sec-
tion (2) of Section 136 or is found guilty of corrupt practices under section 123 of this Act,
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he shall for a period of six years from the date of the conviction or from the date on which
the order setting aside the election made be disqualified for voting at any election". Similar-
ly, Clause 3 of Section 11A requires to be omitted. Also the provisions contained in Section
1OA which disqualifies a candidate for failure to submit account of election expenses for a
period of three years should either be omitted or amended by extending the period of dis-
qualification to 6 years. This becomes essential because the order of the Election Commis-
sion under Section 1OA would remain of little consequences as the candidate can contest the
next election in view of the short period of disqualification. It is, therefore, suggested that
provision be amended accordingly and the period of disqualification be extended to 6 years.
3. In a representative democracy a country is ruled practically by a political party in power.
Therefore, no government can be expected to be above board without fairness of its political
party. This necessitates the enactment of laws to regulate the conduct of political parties and
their activities before of during eiE?ctions. This is paramount because of national interests.
Therefore, the law governing qualifiations and disqualifiations for being a legislator needs
reformulations. It is, therefore, suggested that the proposed Constitution (80th Amendment)
Bill, 1993 should be adopted without any further dabate on the issue. Consequently, the sug-
gested amendments in the Representation of the People (Amendment) Bill, 1993 should also
be incorporated simultaneously.
4. The law relating to corrupt practices needs a second look. The existing corrupt practices
have a limited reach. Our is one of the biggest democracy of the world. We have limited fi-
nancial resources. The electors cannot all the time look for the enforcement of their free ex-
ercise of right to vote to the Election Commission. Therefore, there remains the need for de-
vising an effective mechanism for protecting and safeguarding the rights of the electorates at
the grassroot level. Empirical study conducted by the researcher has exposed many inade-
quacies of the law on corrupt practices. Thus, the following changes are suggested in the law
on corrupt practices.
5. : Personation, which is at present included in the category of electoral offences should also
simultaneously be made a corrupt practice.This is essential because personation is veiwed
presently from a different perspective under the penal laws as it affects the individuals and
not the electoral process.
(b) Misuse of official power and machinery by the political party in power has also become a com-
mon feature of the existing electoral set up. This is neither covered under electoral offences nor un-
der the corrupt practices. Therefore, there must be a total ban on the use of official machinery dur-
Page 16 of 18
ing elections. Consequently, the misuse of official power and machinery by the candidate of the po-
litical party in power should be made a corrupt practice under Section 123 of the Act.
(c) In view of the improvements in the mode of transport and communication as well as the elimina-
tion of distance between the polling booth and the voter's residence, the provisions regarding use of
vehicles for free conveyance of voters has lost much of its significance and requires to be deleted as
corrupt practice. However, it could remain as electoral offence. The penal provision contained in
Section 133 covering this aspect should be amended and the penalty be increased to Rs.1 0,000 in-
stead of the existing amount of Rs.1 ,000.
(d) It has also been observed that the majority of people are opposed to employee's open participa-
tion in electoral politics. Therefore, Section 123(7)of the Act requires to be suitably amended and
no employee irrespective of his rank/position should be allowed to participate in politics during
election days.
(e) Purity of election is also affected when corrupt practices are commited by person without ex-
press authorization of the returned candidate. Therefore, Section 100 of the Act should be amended
suitably so as to extend the principle of implied consent to party workers or other persons provided
these activities have materially affected the election of the returned candidate.

Excessive election expenditure has been and usual feature in every election. Though this matter has
recently been reviewed and the limit for election expenses raised, still we do find that election ex-
penditure, seeing the current inflationary trends cannot be kept within these limits. Moreover, in
recent years expenses on behalf of friends, relatives, or businessmen have continued to be incurred
for benefitting the candidate directly or indirectly. It is difficult to bring these expenses within the
clutches of law under the existing legal set up. This all calls for a total review of the subject matter.
It is, therefore, suggested that the election agent should be made the sole person responsible for
maintaining all accounts of the election expenditure. No expenses should be incurred without spe-
cific authorization from the candidate or his election agent. In this context the provisions contained
in section 77 and 78 of the Act should be amended suitably. Some other measures to check the ex-
penditure in election such as maximum use of radio and television must be restored to . Similarly,
the campaign period also require to be curtailed. Restrictions are also required to be imposed on Po-
litical Parties, Association and other individuals to spend in election.

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Lastly, with due respect to the existing administrative set up envisioned for conducting election in
India, it must be acknowledged that half of India still live under the poverty line. The illiterate, the
half clad, the backward and other neglected segments of our society can still be manipulated by
clever, tricky and dishonest politicians for their own political ambitions. They have virtually no
knowledge of law or the rules for conducting of free and fair elections. It becomes highly desirable
that this vast segment of our population is properly educated and made aware of their right's obliga-
tions as a free citizens of this country. Hence, voter's education campaign should be included in the
agenda of the Election Machinery of the state. It is only then that these people will not only be able
to know their rights but would also be able to exercise their right to vote in a free and unrestrained
manner.
In the end, it may be submitted that the future of Parliament democracy in India would depend
largely on the vigilance and maturity of the Indian voters. This is possible only if the suggestions
given in this part of the study are implemented in true letter and spirit.

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