JAMIA MILLIA ISLAMIA UNIVERSITY

FACULTY OF LAW

ACADEMIC SESSION: 2020-21

Election Law
Criminalisation of Electoral Process

Submitted to: Submitted by:

Dr. Faizanur Rahman Shimran Zaman
B.A.LL.B (Hons.)
Self-Finance
VIIIth Semester
Roll No.- 52

1
CONTENTS

1. Introduction 03

2. Objectives 04

3. Election Offences in India 05

4. IPC Provisions 06

5. Criminalisation of Elections 08

6. Constitutional Provisions 09

7. Importance of Vohra Committee 10

8. Judicial Observations 11

9. Conclusion 14

10.Bibliography 18

2
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 cases. Previous reports show that the number has steadily
risen since 2004.
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 Authority to conduct fair and free elections in the country called the Election
Commission of India.
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 report below would offer both these perspectives with regards to criminal
offences in elections or related 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
cancerous growth 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.1
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

1
Rabi Roy, “Electoral Reforms: Need of the Hours,” 13 Politics India, 7 at 8 (1998).

3
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 familiarize 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 analyze 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 India.

4
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 citizens 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 commits an electoral offence and is liable for
punishment with fine which may extend to Rs. 250.
Public meetings which are held between the date of issue of notification calling the
election and the date on which such election ends only are covered by the above
prohibition. The disturbance caused at election meetings during the other periods
would be governed by the general law.
If the Chairman of an election meeting reports to any police officer about any person
acting in dis- orderly manner at the meeting, such police officer may require that
person to declare to him immediately his name and address and if that person refuses
or fails to declare his name and address or if the police officer reasonably suspects
him of giving false name or address the police officer may arrest such person without
warrant.

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 Officer or a Polling Officer or any officer or clerk appointed by
the Returning Officer or by the Presiding Officer to perform any duty in connection
with an election shall, in the conduct or the management 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.

D. Penalty for Government Servants for Acting as Election Agents,

Polling Agent or Counting Agent: If any person in the service of government

5
 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 being 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 exercise 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 election.
(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
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)
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

6
 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 authorizes 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;

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.

7
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
activities 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 have taken
the legislature in their hands. The stage today is as such that politicians boast of their 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 Election 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 mockeries 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 sentenced for 3 years in a corruption case.2 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, disrespecting all such laws she was sworn in as the chief minister of Tamil
Nadu.
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 Pakistan’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 could run for the
elections independently from Begusarai constituency of Bihar in 14th Lok Sabha but he lost
against Rajiv Ranjan of Janta Dal.

2
Bignell, J 2000, Postmodern media culture, Edinburgh University Press, Edinburgh.

8
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
authority 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 discharge 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 disqualified on the basis of “non-residence, unsoundness of mind, crime or corrupt
illegal practices.”

 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 emergency (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 defecting to another
political party after elections. The 73rd and 74th amendments ensure direct election to all
seats in Municipalities and Panchayats. The 73rd amendment also makes provisions for
reservation of seats for SCs, STs and women.

9
N. 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.
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.

10
 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 Maharashtra. 3The 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 Parliamentary 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 offer 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 political power does not amount gratification
under S. 171-B of the Penal Code.
In Raj Deb V Gangadhar Mohapatra4 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 sinner 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 satisfactory. An order of remission does not wipe out the conviction.5 For actual
disqualification, what is necessary is the actual sentence by the court.6 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 presumption that accused is innocent comes to an end.7

3
(1999) Cr LJ 1224 (S.C.)
4
AIR 1964 Ori. 1
5
Sarat Chandra V Khagendra Nath AIR 1961 SC 334.
6
V.K. Dewan, Election Law 23-24.
7
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
In T.R. Balu V S. Purushthoman8 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 convicted 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.
In K. Prabhakaran V P. Jayarajah9 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 such a manner, the total period of imprisonment came to two years and
five months. On appeal, the session court directed the execution 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. 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. 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
Purushottam Lal10 had taken a strange view V.C. Shukla was convicted and sentenced to
imprisonment exceeding 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 sentence both were effective. The defeated candidate filed an
8
AIR 2006 Mad. 17.
9
AIR 2005 SC 688.
10
(1981) 2 SCC 84.

12
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 aside the conviction and sentence. While
deciding the election petition in favour of the returned candidate, the court referred to
Mannilal V Parmailal11 and held that the acquittal had the effect of retrospectively wiping
out the disqualification as completely and effectively as if it had never existed. 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.12 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
assembly if convicted for criminal offence. According to it, in respect of such member, no
disqualification 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 faction 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.

11
(1970) 2 SCC 462
12
Supra note 34 at 699; The Court also overruled Mannilal V Parmai Lal, (1970) 2 SCC 462.

13
CONCLUSION

The conclusion emerges that free and fair elections are the foundation of a democratic form
of Government. 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
malpractices. 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 authority 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 practices. It
also amended the Indian Penal Code to include electoral offences in the code. Interestingly
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 candidate 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 winning elections, the candidates or their agents or other persons resort to undesirable
means and malpractices. The Representation of the People Act, 1951 is the main statute

14
which makes provisions for controlling such practices. Analysis of the provisions contained
in Section 123 of this Act dealing with corrupt practice and other related aspects reveal that
despite and explicit statutory prohibition, 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 proof and over the years many shortcomings
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
corrupt practices as well. With this objective in view and strength, the legal machinery for
ensuring free and fair elections, 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
disqualification and making recommendations thereto in the Election Commission
which primarily is concerned with the conduct of elections. The proper forum for
adjudication of disputes concerning 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, appears to be absurd.
ln our submission, the questions whether a candidate found guilty of such practices
should be disqualified 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 along with Section 11Band
consequently the provisions contained in Section 11 A should be amended on the
following lines. "11A- if any person, after the commencement 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-section (2)
of Section 136 or is found guilty of corrupt practices under section 123 of this Act,
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 Commission under Section 1OA

15
 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 or during elections. This is paramount
because of national interests. Therefore, the law governing qualifications and
disqualifications for being a legislator needs reformulations. It is, therefore,
suggested that the proposed Constitution (80th Amendment) Bill, 1993 should be
adopted without any further debate on the issue. Consequently, the suggested
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 financial resources. The electors cannot all the time look for the
enforcement of their free exercise of right to vote to the Election Commission.
Therefore, there remains the need for devising 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 inadequacies 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 viewed presently from a different perspective under the penal laws as it affects the
individuals and not the electoral process.

6. 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 under the corrupt practices. Therefore, there must be a
total ban on the use of official machinery during elections. Consequently, the misuse
of official power and machinery by the candidate of the political party in power
should be made a corrupt practice under Section 123 of the Act.

7. In view of the improvements in the mode of transport and communication as well as

the elimination 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.

8. It has also been observed that the majority of people are opposed to employee's open
participation 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.

9. Purity of election is also affected when corrupt practices are committed by person

16
 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 expenditure, 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 specific 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 expenditure in
election such as maximum use of radio and television must be restored to. Similarly, the
campaign period is also required to be curtailed. Restrictions are also required to be imposed
on Political Parties, Association and other individuals to spend in election.
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 obligations as 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.

17
BIBLIOGRAPHY

Websites:

• http://www.mightylaws.in

• http://www.vifindia.com

• www.legalservicesindia.com

• www.barandbench.com

• www.scconline.com

• www.cambridge.org

• www.wire.in

Books:

• M.Vijaya Kumar ‘Need of Electoral Reforms on India’, Background Paper,

AIPF

• R.B. Sundriyal & Sharde Dighe ‘Electoral Reforms’ Shree Publishing House,
New Delhi.

• Amandeep Kaur ‘Electoral Reforms in India: Problems &Needs, Unistar

Publucations.

18