CHAPTER IV ELECTORAL CORRUPT PRACTICES AND JUDICIARY

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1 CHAPTER IV ELECTORAL CORRUPT PRACTICES AND JUDICIARY The present chapter deals with corrupt practices committed during elections in India. This chapter also deals with the important cases on corrupt practices decided by the courts. 4.1 Corrupt Practices: Free and fair elections are the most important aspect of a democracy. Any extraneous influence, Governmental or otherwise, affecting the poll verdict, either by means of corrupt practice (for example: Cheating, intimidation and fraud, booth capturing or the abuse of the Governmental Office) vitiates the electoral process. Any election, where the electoral process is either by the of corrupt practice in any form ;or the disqualification of a member, is likely to be questioned and challenged in a court of law either by a defeated candidate or any elector on the aforesaid grounds or for the non compliance with constitutional or statutory provisions by the returned candidate. A good electoral system; coupled with an impartial electoral machinery are the pre-requisites of free and fair elections. It is also necessary that contesting candidates and their workers do not commit certain objectionable acts to swing the result of elections in their favour. The more serious of these objectionable acts have been defined as corrupt practices in the election law. 96

2 4.1.1 Corrupt Practices and the Supreme Court Under the Representation of the people Act, 1951 : The Supreme Court while deciding cases under the R.P.Act, 1951 maintained that all the eight corrupt practices enumerated in Section 123 of the Representation of the people Act, 1951 fall under the following categories. (1) Those which are committed by the use of money such as bribery, excessive expenditure and conveyance of voters, (2) Those which are committed by the use of force or power by abuse of political or official power such as undue influence, coercion, intimidation, violence, and obtaining or procuring the assistance of government officials or the use of official machinery. (3) Those which are committed through misleading propaganda, false allegations in relation to the personal character or conduct of a candidate, and through an appeal to sectional sentiments by spreading disaffection and enmity among different classes of citizens of India. The cases decided by the Supreme Court between 1966 and 1996 on charge of corrupt practices are related mainly to the following matters. 1. Threatening of election officers. 2. Hiring or procuring vehicles to carry voters. 3. Offering bribery. 4. Canvassing on the basis of Religion. 5. Obtaining or procuring assistance from government servants. 6. Unlawful activities of Unlawful associations. 7. Excessive expenditure. 8. Misuse of Governmental Machinery. 9. Rigging 10. Undue Influence. 11. Publication of False Statement. The decisions of the Supreme Court under the above different heads are analyzed for a clear understanding for the scope of the corrupt practices as prohibited under the R.P. Act,

3 1. Threatening of Election Officers: Personal security of the election; officers is of more important since they are directly connected with the conduct of elections. A threat to the election officers is considered as a threat to the free and fair elections. It is to be noted that threatening the election officers is made as a corrupt practice and invites the punishment of disqualification. The decision of the Supreme Court in Har Swarrop 1 is directly related to the question of disqualification of the candidate on the basis of his conduct leading to threatening of the election officer connected with the conduct of elections. In the present case the respondent Brij Bhushan threatened the election officers in the polling stations at the time of elections. Delivering the right judgment in this case the court through K.N.Wanchoo.J; set aside the election of the respondent on the charges of corrupt practice under Section 123(2) of the R.P.Act,1951. The decision of the Supreme Court in Har Swaroop ensures greater security to the personnel drafted for the conduct of the elections. 2. Hiring or Procuring Vehicles to Carry Voters: In India during elections from Panchayat to parliament the contested candidates provide vehicles to transport voters from their residence to the polling booth and back to their places. The transportation is provided to voters by the candidates to win their favour and choice in favour of the contested candidates. The R.P.Act, 1951 prohibited transportation of the voters by the candidates by arranging vehicles and further Section 123(5) and Section 83 of the Act made it as a corrupt practice, in the decision of the Supreme court in R.M.Seshadri. 2 98

4 In R.M.Seshadri, the question involved was whether the respondent G.V.Pai who hired and procured motor cars to carry voters to the polling stations in 1969 general elections is a corrupt practice under R.P.Act, The Supreme Court in the instant case observed that hiring or procuring motor cars to transport voters to the polling stations is very much against to the rules of model code of canduct of the Election Commission of India and such activities also can be treated as hindrance to the willful democratic views in franchising the vote by the voters. As a result chief Justice Hidayatullah nullified the election of the respondent Vasant Pai from madras constituency under the charge of corrupt practice. 3. Offering Bribery: In India elections have become expensive. Money is playing an important role influencing the voting pattern. The candidates are offering money to voters with requests to vote in their favour. Instances were not lacking where the validity of the election is challenged on the ground of offering bribe to the voters during elections. The Supreme Court in Om Prakash 3 explained the following in gradients of the charge of bribe which comes within the purview of corrupt practices. i) The bribe has to be offered either by the candidate or his agent or by another persons on his behalf, ii) That it is offered with the consent of the candidate or his agent and iii) That it is made with the avowed object of influencing the voters or influencing a person to stand or not to stand in the election. In Om Prakash the Supreme Court maintained that offering Rs.20,000/- by Lalchand to voters comes within the scope of the corrupt practices as it satisfied the above ingredients. Similarly, the court in Raman Bhai 4 set aside 99

5 the election on the ground that the offer of the bribe by the respondent to the poll officers amounts to corrupt practice under the R.P. Act Canvassing on the basis of Religion: In the recent years there is a growing tendency that the religion and politics are mixed together and this is considered as a blatant threat to secularism in India. The R.P. Act, 1951 prohibits the practice of canvassing on the basis of religion during elections. The court in Mohammed Koya 5 considered the publication of a cartoon which affected the religious sentiments of muslim as a corrupt practice. In this context it is to be noted that the communal politics, leads to communal violence. In this context it is important to note the importance of the recent decision of the Supreme Court in Manohar Joshi. 6 The issues involved in the instant case are: a) Whether the speeches made on ground of religion by the leaders of the political party, i.e., persons other than the returned candidate or his agent, with consent of the returned candidate or his agent amount to corrupt practices. b) Plank of Hindutva in the election campaign is similar to that of Hindu religion. c) Whether the election of Manohar Joshi whose election campaign was carried on the ground of hindutva hits his election on the ground of corrupt practices. The High Court of Bombay declared the election of Manohar Joshi as void under Section 100 9(1) 9(b) of the R.P. Act. The Court declared that the speeches made on the religious during the election campaign by the leaders of the contesting political party amount to corrupt practices. 100

6 On appeal the Supreme Court took a contrary view and gave a different connotation to the term Hindutva. The Supreme Court is satisfied that no corrupt practice was committed at the election by the candidate or his election agent, and every corrupt practice was committed on the basis of the speeches on the ground of religion and without the consent of the candidate or his election agent. The court in such a way also cleared that if the corrupt practice is committed in the interests of the returned candidate by any other person, even if he is an agent other than his election agent, without the consent of the returned candidate or his election agent has been materially affected thereby. And the court also apprehended that the returned candidate would not get the benefit of corrupt practice committed in his interests by any one if the result of the election is shown to be materially affected thereby. Apart from this aspect, the court, observing the second issue of the case i.e., plank of the word Hindutva in the election campaign by the candidate or the agents of the candidate with consent or without content, held that the court already studied the matter connected to this case in Balthackeray vs Prabhakar K. Kunte 7 decided today, that the word Hindutva by itself does not invariably mean Hindu religion and it is the context and the manner of its use which is material for deciding the meaning of the word Hindutva is a particular text. The court in the present case held that the so-called plank of the political party may at best be relevant only for appreciation of the context in which a speech was made by the leader of the political party during the election campaign, but no more for the purpose of pleading corrupt practice against a particular candidate. It is clearly showing the view of the Supreme Court that the using of the word Hindutva as would not amount to corrupt practice under Section 123(3) of the R.P. Act on the basis of speeches on ground of religion. The Supreme Court in the instant case held that the Bombay High Court failed to appreciate the averments of the respondent of that court (Petitioner in 101

7 the present court, Manohar Joshi) that the only allegation of corrupt practice in this election which raised tribal issue is as indicated above and rest of the general averments deficient in requisite parts of the corrupt practice did not constitute the full cause of action. And in the opinion of the court, it is the erroneous impression of the High Court which has led to the serious errors committed during the trial of the case. The court in the instant case admitted that no notice was given to Balthackerary and Promod Mahajan or any other persons against whom allegation was made of commission of corrupt practice, even though the High Court has held those corrupt practices to be proved for the purpose of declaring the appellant s election to be void on the ground contained in section 100 (1) (b) of the R.P. Act, The Supreme Court indicated the effect of the combined reading of sections 98 and 99 of the R.P. Act, 1951 and the requirement of notice under section 99 to all such persons before decision of the election petition by making an order under section 98 of the R.P. Act, the court further maintained that combined effect of reading the sections 98 and 99 of the R.P.Act, 1951 indicates the construction there of made by us and this is also supported by the likely out come of a different construction which is as absurd result and must, there fore, be rejected. In the opinion of the Supreme Court, the Bombay High Court overlooked the obvious position in law taking a different view. No notice under section 99 was given by the High Court before making the final order under section 98 of the R.P. Act declaring the election of the petitioner is this court to be void, as a fatal defect. As a result of the aforesaid findings, the court recorded the judgment that, the finding recorded by the High Court of Bombay against the appellant that the charge of corrupt practices under section 123 (3) and (3-A) of the R.P. Act has been proved to declare his election to be void on the ground contained in section 100 (1) (b) of the R.P. Act is contrary to law and is, therefore, set 102

8 aside the High Court s verdict. Accordingly the court upheld the election of the petitioner Manohar Joshi. CRITICISM AGAINST THE DECISSION: The decision of the Supreme Court in Manohar Joshi generated heated discussion outside the court mainly on the observation of the court that the concept of Hindutva cannot be equated with that of the Hindu religion and canvassing during elections on the basis of the concept of Hindutva is not a corrupt practice under the R.P. Act. The Supreme Courts judgment in Manohar Joshi s case and also its observations about Hindutva in Ramesh yashvant Prabhoo s case raise a number of questions. The Court records the allegation that Joshi himself said in an election meeting on Feb 24, 1990 that the first Hindu State will be established in Maharashtra. But according to the court a mere statement is by itself not an appeal to voters on the ground of his religion but the expression, at best, of such a hope. The Court has not quiet met this point in its judgment, instead it has shifted the discourse to section 100 (i) (d) (ii) of the R.P. Act, This is an additional ground on which an election may be set aside and requires an election petitioner to prove that the election had been materially affected by the corrupt practice in question. Hence, an appeal to the candidate s religion in order to secure votes in such a corrupt practice under section 123 of the R.P. Act, The judgment is yet another instance of widespread confusion in the discourse on secularism, pluralism and humanism. The Supreme Court judgment in Joshi s case can be seen in various ways. It may be seen as a warning of an approaching Hindu Rashtra. More charitatly, however, the 103

9 judgment may be seen as an aberration rather than representative of trend. This is a systematic problem, not one concerning this or that judge. In their judgments, courts have some times to venture into fields that touch upon Sociology, Philosophy, Economics and several other disciplines. The judges of Supreme Court are usually persons with vast experience of law and life. In Joshi s and Prabhoo s cases it does not appear to have been necessary for the court to expound on or touch upon the nature of Hinduism. If at all the court wished to enter into a discussion of the connotations of the expression HINDUTVA this task is required a volume of intellectual and historical research which is not evident in the court s judgments. The Hindutva judgments reflect a growing tendency towards appropriation of the B.J.P., R.S.S. conceptual frame work by state institutions. It is a warning to the secular and pluralistic tendencies in the country. The Hindu communal ideology can t now the said to be confined to the political forces represented by the B.J.P. and the R.S.S 9. In this context, the following samples from the judgment in Ramesh yashwant Prabhoo s case need to be considered. Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism. This statement appears to be in correct. But the court says considering the term Hinduism or Hindutva parse as depicting hostility enmity or intolerance towards other religious faiths or professing communalism proceeds from an improper appreciation and preparation of the true meaning of these expressions. This approach seems contrary to the basic structure of the Constitution of India and to the social vision of the Constituent Assembly. 104

10 Further, the court has held that the speeches by Bal Thackeray which were brought on record amounted to an appeal to voters on ground of religion and one of the speeches made by him also amounted to promoting feelings of hatred between Hindus and Muslims on ground of religion. Was it really necessary them to make all the general remarks about Hinduism; appear to give respectability to Hindutva by using it interchangeably with Hinduism? The court s judgment reflects also a wide spread confusion on questions involving secularism, communalism and appeal to religion. This confusion arises from; not distinguishing between the nature of norms that may apply to (a) individuals in their personal life (b) civil society as a whole and (c) the state, including individuals. The court s judgment reflects also a wide spread confusion on questions involving secularism, communalism and appeal to religion. This confusion ;arises from not distinguishing between the nature of norms that may apply to (a) individuals in their personal life (b) civil society as a whole and (c) the state, including individuals. The judgments of the Supreme Court on religious affairs of secularism have been a mixed bag. In the recent Article 356 cases, a nine judge bench of the court in S.R. Bammai took a strong stand on the secular basis of the constitution, when it comes to a broader application of which a firm position on matters with religiously divisive connotations the court s record is not uniform. Before the demolition of the Babri Masjid in December, 1992 the court permitted the Karseva to be conducted there assuming the permission had to be granted it seems the conditions imposed upon the B.J.P. government in U.P., were insufficient and should have been supplemented by other guarantees, preferably from the central government which would have secured its commitment and involvement. This comment is, of course, open to the charge that is criticism by hindsight. There is a need to appreciate that the norms 105

11 expected to be applied in the case of individuals and their public role as aspirants for entry into constitutional institutions have been elevated by election law to a level similar to the norms that one expects from the state itself. The meaning of Hinduism was not the issue in the recent election cases. The question before the court was whether an appeal to religion had been made by or on behalf of the candidate is question: such appeal the court has found to have been made by Bal Thackeray on Prabhoo s behalf and such the latter s appeal has been dismissed. It was not therefore, really necessary for the court to go into questions concerning the meaning of Hinduism. Election Law prohibits an appeal to religion are. This is an addition; to the general humanistic position against provoking inter-religious discord as embodied in the penal provisions of Section 125 of the R.P. Act, So, the December 12, 1995 Supreme Court judgment exonerating Manohar Joshi of corrupt electoral practices has created euphoria an amongst the sangh parivar while those committed to secularism has received a serve jolt. The central point of judgment on Hindutva related to a way of life rather than to narrow limits of religion Obtaining or procuring the Assistance of Government servants: The Supreme Court in Dhartipakar vs. Rajiv Gandhi 12 explained when procuring the assistance of Government servants during elections by a candidate is considered as a corrupt practice. The court maintained that, in order to constitute a corrupt practice under Section 123 (7) of the R.P. Act, the petition should clothe the mode of assistance, measure of assistance and all facts pertaining assistance, to prove the charge of the corrupt practice of using the services of government servants, there must state with exactness the time of assistance, service, the manner of assistance and the persons of whom the 106

12 assistance was obtained or procured by the candidate as held by the same court in Haridwarlilal vs Kanwal Singh (1972) SCR 742. In the instant case the appellant did not able to prove the allegations. As a result court did not find guilty of corrupt practice since no proof was available and hence the court dismissed the petition and upheld the election of Rajiv Gandhi. The Supreme Court while dealing with the matters relating to corrupt practices made it clear that whenever there is an allegation of corrupt practice, the election petition shall contain a concise statement as to the material fact on which the petitioner relies and also must set fourth full particulars of the corrupt practice alleged by the petitioner. In U.S. Sasidharan 13 case the appellant filed a election petition challenging the election of the respondent on various grounds of corrupt practices. One of them is that at the instigation of the first respondent a video cassette showing progress of the constituency in which two government servants had spoken, as had been used in the constituency. The first respondent opposed the election petition stating inter alia that as the copy of the video cassette was not supplied to the first respondent along with the copy of the election petition, the election petition was liable to be dismissed in limit under Secion 86 (1) for non-compliance with section 81 (3) of the R.P. Act, The Kerala High Court accepted the contentions of the first respondent and dismissed the election petition. On appeal the Supreme Court held that as has been held in Satyanarayana vs Dhuja Ram 14, the right to challenge an conferred by the Act. At the same time, the procedure prescribed by the Act for challenging an election petition must be followed. The contention of the respondent is this case considered and the Supreme Court maintained that the allegation of the petitioner is not disputed that by corrupt the Supreme Court held that the speeches of the two government servants relating to the progress of the constituency, simply citer will not constitute a corrupt practice within the meaning of section 123 (7). The court also held that in order to be a corrupt 107

13 practice within the meaning of section 123 (7), the speeches of the said government servants as recorded in the video cassette and alleged to have been used in the constituency at the instigation of the respondent, must be with a view to obtaining or procuring or abetting or attempting to the assistance of the government servants for the furtherance of the prospects of the respondent. In the result the Supreme Court affirmed the judgment of the High Court dismissing the election petition of the appellant. 6. Unlawful activities of Unlawful associations: In Jamaat-E-Islamia Hind 15 the court studied the provisions of the Unlawful activities (prevention) act to determine whether an association is a Lawful one or not. The Government of India issued a notification of under sections 2 and 3 of the Unlawful activities (prevention) Act declaring that the Jamat-E-Islamia, the appellant association was an unlawful association in view of the facts stated there as well as other facts and material in its possession which it considered to be against the public interest, to disclose. A reference was made by the Central Government to the Tribunal for adjudication under section 4 of the Act. In the inquiry before the tribunal, the only material produced by the Central Government on the basis of some intelligence reports and affidavits of the Central Government. The Tribunal came to the decision and passed an order conferring the notification issued by the Central Government under section 3 of the Act against the Jamat-E-Eslamia Hind as an unlawful association. On appeal the appellant contended that before issuing a notification denoting that their association as an unlawful association the Central Government did not issue and did not followed any principles of natural justice, to the requirements of, to protect public interest ensuring protecting the rights and freedoms guaranteed under the constitution of India. The appellant urged the court that none of the grounds specified on which the notification 108

14 was based, issued by the Central Government. The Supreme Court in Jamaat- E-Islamia Hind held that, however, non-disclosure of information or any notice to the appellant by the respondent is clear violation of principles of national justice which are to be followed while issuing such notification by the Central Government. The court in the instant case gone through the under clauses (f) and (g) of section 2 of the Act and make it clear that the determination of the question whether by association is, or has become an unlawful association to justify a declaration under section 3 (1) should be that any action taken by such association constitutes an unlawful activity which is object of the association or the object is any activity punishable under section 153-A and 153-B of I.P.C. In the result the court made it clear that the allegations made by the Central Government against the association were totally wrong the deniable. In this view of the challenge to the constitutionality of the said notification issued by the central government not survived and order passed by the tribunal is quashed. 7. Excessive expenditure: The expenses incurred by the candidates contesting in elections are meticulously complied and audited by the special observers appointed by the Election Commission. The Election Commission made it compulsory that each and every contesting candidate in elections must submit their accounts to special audit party appointed by the commission to avoid money power in elections. To prove the corrupt practice of excessive expenditure it is not sufficient of the petitioner to prove merely that the expenditure is more than prescribed limit had been incurred, he must go further that the excess expenditure was incurred with the consent or under the authority of the returned candidate or his election agent. In all democratic countries expenditure incurred by a candidate in seeking election to the legislature is statutorily controlled. Quite often a ceiling 109

15 is fixed beyond which the expenses must not exceed. It is mainly to eliminate the disparity between poor and rich party organisations. In India every contesting candidate is required to maintain and file the accounts of his election expenses within a prescribed period after the publication of the result of his election. A number of allegations of corrupt practice were made by the respondent in Indira Gandhi vs Raj Narain case, 16 Beig J in his opinion pointed out that in the instant case there was no case or evidence that the Congress party was the agent, express or implied, of the returned candidate or acting as the Channel through which any money spend by her. In M. Karunanidhi 17 the Supreme Court admitted the contentions of the petitioner on the charges of corrupt practices under Section 123 (6) of the Representation of the people Act, 1951, that the respondent Dr. Hande erected fancy banners thought out the constituency and the number of such banners are about 50. Along with the petition a photograph of one of such banner is filed by the petitioner. The cost of each banner will be not less than Rs.1000/-. The expenditure involved in erecting these fifty banners is about Rs.50,000/-. It is submitted that the respondent has incurred the expenditure which added to the amount disclosed in the return of election expenses exceeds the amount fixed under section 77 (3) of the R.P. Act, The court in the instant case held that it was amounting to a corrupt practice under the charges of excessive expenditure under section 123 (6) of the R.P. Act and set aside the election of the respondent Dr.Hande. 8. Misuse of Governmental Machinery: It is generally complained that the Government in power at the time of election misuses official machinery to further the election prospects of its party candidates. The misuse of official machinery takes different forms such as 110

16 issue of advertisements at Government cost, highlighting their achievements, disbursements out of the discretionary funds at the disposal of the ministers, use of Government vehicles for canvassing etc., the misuse of official machinery in the ways mentioned above gives an unfair advantage to the ruling party at the time of elections. This tantamount to misuse of public funds for furthering the prospects of candidates of particular party. Some of the instances of misuse of official machinery and power which were either agitated in courts or have come in far adverse judicial notice in the past are given below: a) Disbursement made by Ministers from out of the discretionary grants at their disposal on the eve of elections (Ghasi Ram vs Dal Singh) 18. b) Scheme for public welfare being initiated just on the eve of elections. c) Construction of rostrums and provision of other facility at Government expense (vide judgment dated 12 June, 1975 of the Allhabad High Court in the case of Raj Narain vs Indira Gandhi. d) Use of translation attached to the DAVP and All India Radio by V.C. Shukla, former Minister for Information and Broadcasting, for getting the Election Manifesto of the Congress party translated and for getting the election posters of that party designed Rigging: Related to booth-capturing is rigging also as both the terms are interrelated and used for one another. The dictionary meaning of rig is to manage or manipulate in same underhand or fraudulent manner. But in the context of Indian Elections, as S.P. Sen Verma, former Chief Election Commissioner pointed out. 111

17 When people speak about rigging in a election, I think the generally mean that a corrupt practice has been indulged in at the elections in a Constituency or in a number of constituencies on a large scale in an organized and preplanned manner with the active help, consent or convenience of the party in power, either acting single or in collusion with the Election machinery, including the Election Commission. I think Rigging is used in the press by the politicians and others in this sense. Forms of Rigging: Rigging is prevalent in many forms. One form of rigging common to the whole country is bogus voting. This is more prevalent in the urban areas; in Rural areas familiarity breeds fear of being caught in the act. The idea of allowing agent of candidates in the polling booth is to check bogus voting, but in Urban areas it is humanly impossible for the agent to identify all voters. In Nagaland, for instance, voting by school children is a regular feature at elections. They are not taking the election process seriously, said an Election Commission l Official. Teachers are the enumerators and they enrolled all their school children as voters and register their votes on polling day. This perhaps explains why the state s electorate is more than 75% of the population, that is, 5,78,000 voters out of a population of 7,74,000. Incidentally, the national average is only 50%. Double enrollment is also more in urban areas voters register their names in their native village as well as places of work. Printing of unauthorized ballot papers and using them on polling day, too, is Rigging. Such a charge was raised during the 1983 Jammu & Kashmir Assembly poll. Snatching ballot boxes while in transit in some northern and Eastern States is a common feature. This despite the presence of candidate s agents at every stage

18 10. Undue Influence: According to Section 123 (2) of R.P. Act, 1951 Undue Influence means only direct or indirect interference on the part of the candidate or his agent who threatens or made injuries of any kind for an object of divine displeasure and spiritual censure shall be deemed to interfere with the exercise of electoral right of such candidate will be guilty of undue influence. Undue influence implies an element of compulsion. It means, the methods of inducement which are so powerful as to leave no free will to the voter in the exercise of his choice may amount to undue influence. In Jagannadh Prasad Singh vs Kamalapathi Triparthi 21, an allegation that the returned candidate and his agents did not allow the other contestant and his followers to do any effective canvassing out of fear of life, is an allegation of undue influence. Similarly carrying on false propaganda about candidate is an allegation of undue influence. The Election Commission stayed the telecast of Urdu news bulletin on Bangalore Door Darshan till the Assembly Elections in Karnataka are completed saying that the decision was a move to influence a particular section of voters in favour of the ruling party, treating this as an undue influence Publication of False Statement: In order that the publication of a statement may be corrupt practice under Section 123 (4), if the publication of false statement of facts relating to the personal character or conduct must be such as would, in the opinion of the Court, having regard to the nature of the publication, the evidence tendered and the surrounding circumstances, have its natural and probable consequence of 113

19 prejudicing the prospects of the candidate. The stress on the election of the candidate against whom those statements are directed. Apart from this the following things are also can be established as false publication: i) The publication was in the interest of the returned candidate; and ii) The result of the election has been nationally affected by the publication. In Nani Gopal Swami vs Abdul Hamid Chowdary 23 the Supreme Court held that if an offending article appears as a paper which is proved to have circulation and is read by the public, this would be sufficient publication as false in the eyes of law. ELECTORAL OFFENCES 1. Electoral offences Electoral offences are contained in sections 125 to 136 of Act These are: 1) Promoting enmity between classes in connection with election ( Section 125). 2) Failing to furnish information relating to sub-section (1) of S.33A; or giving false information which he knows or has reason to believe to be false; or concealing any information in his nomination or in his affidavit ( Section 125A) 3) Convening, holding, attending, joining or addressing any public meeting or displaying to the public any election matter by cinematograph, television etc or propagating any election matter by holding or arranging the holding any musical concert, theatrical performance, other entertainment or amusements, etc during the period of 48 hours ending with the hour fixed for conclusion of the poll ( Section 126). 4) Disturbances at election meeting ( section 127). 114

20 5) Printing or publishing of pamphlets, posters etc not bearing on its face the names and addresses of the printer and publisher thereof ( section 127A) 6) Officers, clerks, agents or other persons performing duty in connection with election not maintaining secrecy of voting ( Section 128). 7) Officers etc at elections acting for candidates or influencing voting (Section 129). 8) Canvassing in or near polling stations (section 130). 9) Disorderly conduct in or near polling stations (section 131). 10) Misconduct at the polling station (Section 132). 11) Failure to observe procedure for voting (section 132A). 12) Illegal hiring or procuring of conveyances at elections (section 133). 13) Breaches in official duty in connection with elections (section 134). 14) Person in service of the Government acting as an election agent or a polling agent or a counting agent (section 134A). 15) Going armed to or near a polling station (section 134B). 16) Removal of ballot papers from polling stations (section 135). 17) Booth capturing ( section 135A) 18) Granting of paid holidays to employees on the day of poll (section 135B). 19) Selling, giving or distributing the liquor on polling day (section 135C). 20) Miscellaneous offences (section 136). 2. Electoral offences: object The object of making certain acts during elections offences punishable with fine or imprisonment or both, is to ensure peace and order during elections and to make the election as free as possible, particularly at the time of polling. 115

21 3. Effect of Commission of Electoral offences on the return of a candidate. The commission of an electoral offence is not a corrupt practice and cannot by itself vitiate an election. Rikhab Das v Ridhichand; Murlidhar Reddy v Pulla Reddy. Prohibition about the commission of electoral offences forms part of the Act and if it is proved that an offence has been committed thereby materially affecting the result of the election, the election can be declared void under section 100(1)(d)(iv). The conviction for the offence entail a disqualification for membership under article 102 or 103 of the constitution. 4. Disturbance at Election Meeting (Section 127) The section has been held to be valid having been enacted in the public interest. (Rameshwar v State) It applies only to public meeting of a political character held in any constituency after the notification till the polling takes place. A public meeting is one where the members of the public have access to attend and watch proceedings. The character of public meeting must be political. Disturbing an election meeting is not a corrupt practice. (Surinder Singh v Hardial Singh) 5. Printing or publishing of Pamphlets and Posters etc (Section 127A) Printing or publishing of or causing to be printed or published an election pamphlet or posters in contravention of the provisions of the section by the candidate or his election agent is not made a corrupt practice affecting the election. But it will act as a great restraint on the issue of irresponsible and sometimes malicious posters the contents of which might amount to corrupt practice under section 123(4). Both the printer and the person at whose instance a poster is printed are under an obligation to take and deliver a declaration as specified in the section. 116

22 A declaration which makes no reference to the pamphlet or poster is not a declaration in accordance with the law. (Munichimappa v Basavalingappa). The election authorities actively enforce the provisions so as to eliminate a bad practice. Chanda Singh v Shiv Varma. The mere fact that a copy is not to be found in the file of the collector does not show that the candidate in whose favour the pamphlet was issued was not responsible for its publication. (Devi Prasad v Maluram) 6. Maintenance of Secrecy of Voting ( Section 128) An essential principle of modern election law is secret voting. Every person associated with the election is bound to maintain this secrecy. There are many occasions where a person by virtue of his association with the election process, is likely to learn about the secrets of voting. To make that provision effective, section 128 makes it an offence for any such person to violate such secrecy. In producing the marked copy of the electoral roll of constituency by the returning officer when called as a witness, section is not contravened, as the tick only shows that a ballot paper was issued to the named elector but it does not show how he voted. (Patil Shivayya v Kavisetti Shankarappa) 7. Disorderly conduct in or near Polling stations (Section 131) The prohibition to use or operate a loud speaker extends to both public or private places in the neighbourhood of the polling station. What area shall be taken to be in the neighbourhood of the polling station will be a question of fact depending on the circumstances of the case. In a prosecution for putting exhibits or any notice within a distance of 100 yards of the polling station, there must be proof of distance. (Jagannath v State) 117

23 8. Illegal Hiring or Procuring of conveyances at Elections ( section 133). Section 123 (5) makes the hiring or procuring of a vehicle for the conveyance of electors a corrupt practices as affecting the election of the returned candidate. S.133 declares such hiring or procuring illegal also. It constitutes an offence punishable with fine. 9. Booth capturing ( section 135A) Booth capturing is also a corrupt practice under Section 123 (8). Sections 135A and 135A and 123(8) are inserted by Act No.1 of Explanation to Section 135A described the meaning of booth capturing. The Election Commission has the power to adjourn poll or countermand election on the ground of booth capturing ( section 58A). For the purposes of Sec.123 (8) booth capturing has the same meaning as in section 135A of the 1951 Act. (S. Baldev Singh Mann v S. Gurcharan Singh & ors) There were two types of booth-capturing at the time of polls, i.e. silent and violent: both were the products of criminality. In a silent booth-capturing, detection and effective remedial action of which were not easy, the voters were given threats of dire consequences. They either forgo their right to vote or their votes are impersonated on a large-scale. The very presence of hired thugs (goons) at polling stations to oversee the operation has made it possible either to coerce the weaker sections of the electorate to vote in a particular way or enable their ballot papers being freely handled by those musclemen. Violent booth capturing took the form of snatching and running away with polled ballot boxes or open destruction of ballot papers and other records. They were again the crude handwork of goons and goondas. These penal sections have been amended by Act 21 of The offences have been made cognizable and the sentences has been enhanced. 118

24 10. Publishing of information by Journalist liability By publishing in the news paper information about the incidents that had taken place in course of election at polling booths, the journalists, could not be said to have committed an offence punishable under section 505 of the Penal Code. Nor a Journalist finding a ballot paper on road can be said to have committed an electoral offence. A reading of the provisions in section 136 and other provisions in the R.P.Act declaring certain acts or omissions punishable leave no manner of doubt that acts or omissions which directly affect the elections and which are unauthorized by law or are fraudulently done alone are punishable. A person who finds the ballot papers fallen on road cannot be said to have done anything at any election as someone else has removed the ballot paper and thrown it on the road. (A.B. K.Prasad v State of A.P) 4.2 VIOLATION OF MODEL CODE OF CONDUCT: The Election Commission, made that the statements made in favour of reservations for the minorities before the elections it will come under the violation of model code of conduct 24. The object of judicial system should be reluctant and meet the needs of the people by proper justification for common good as enshrined in the Indian Constitution. For this the support from all segments of the society is necessary. The present political atmosphere of the country is such that it is not able to meet the majority of the people who are illiterate poor and ignorant. Hence, the judiciary has to actives its legal system with its land mark judgments. As it is well known that the success of democracy lies on the popular conduct of the elections. The proposed electoral reform bill of 1994 is significant as it seeks to give legal sanction to the all political parties in December, The bill, according to sources in the law ministry, is likely to stipulates that violations 119

25 would become a corrupt practice and persons committing such violations would be liable to imprisonment for up to two years and disqualification from contesting elections. It must be realized that the Election Law is not a creature of the Election Commission but creates it. The Commission is high functionary but has no judicial experience for legal training. Administrative decisions are reasonably with in the competence of a lay out efficient commission also acts as a court as far instance in symbol cases. The Election Commission of India, according to its power, heard and disposed of all the petitions relating to the symbol cases of different political parties, the Janata Dal (S) and Janata Dal (G) of Chimanbhi Patel were accorded recognition and allotted their poll symbols. Even the B.J.P was set free to use its LOTUS symbol in the Lok Sabha Elections of The prominent petition was filled by the Congress (I) Leader Mr. Arjun Singh against B.J.P to derecognize and derecognize the symbol under 29-A of the R.P.Act,1951 or alternatively to frame its symbol because of its misuse during the Rathyatra under taken by the B.J.P at the time the Ayodhya crisis in July,1989. It was treated as a case of violation of the amendment brought about in section 29-A of the representative of people Act,1981 is in Though the Election Commission reserved its judgment till the elections were over and the B.J.P was allowed to cure the election symbol in the ensuring elections to the and doubts against the decision are expressed before it could deal with the petition. An election petition is a statutory proceeding to which neither the common law nor the principles of equity apply, but only those rules which the statue makes and applies. The statute there is no right to elect, no right to be elected and no right to dispute on election

26 Rules of procedure are essentially devised for the purpose of doing justice and securing rights to the parties under law. As is often said, procedure is the hand maid of justice, and not its queen. It is a sound rule of construction that procedural enactments should be constructed liberally and in such manner as to render the enforcement of substantive rights effective. Even where the status is mandatory in terms, it is statisfied if there is substantial compliance 26. Courts may take recourse to the legislature history as well as to the intention of the legislature but bearing always in mind that the intention is best expressed to the words used. In finding out the legislative is tent the courts can t speculate and then trespass into the field of legislation. Resort may be had, and in fact courts are in some cases bound to do so, to ascertain the mischief left un provided for in the old law and sought to be remedied by the new statute, shot the words must be read in their ordinary sense though they may be modified only to in Kanhiya Lal Omar vs R.K. Trivedi case 27 the constitutional validity of the Election symbols order was challenged before the Supreme Court under Article 32. The main ground of attack was that article 324 of the constitution could not be so construed as to confer legislative power on the commission to issue such an order. This argument was repelled by the Supreme Court mainly on two grounds. First, the Election Commission issued the election symbols order pursuant to the rules framed by the Central Government under Section 169 of the Representation of the people Act, 1951, for Carrying out its purpose. Rule 5 of the conduct of Election Rules, 1961, makes it obligatory for the Commission to specify symbols for election in Parliamentary and Assembly Constituencies. Rule 10 (4) empowers the election Commission to issue general or special directions to the retiring officers in respect of the allotment of symbols. Such an allotment, however, has to be in accordance with those directions. Under Rule 10 (5), the commission can revise the allotment of a symbol by the returning officers in so far as the said allotment is inconsistent 121

27 with the direction issued by the Commission. In the light of such rules, it clearly follows that the commission has been clothed with plenary powers to issue the order in the matter of allotment of symbols. Another repelling reason emerges from the can joint consideration of articles 324 and 327 the power to make laws with respect to elections to legislatures has undoubtedly been given to parliament by Article 327. but the opening words of this Article are, subject to the provisions of the constitution. Such an arresting constitutional clause merely means that any law made by parliament in exercise of powers conferred by Article 327 could be subject to the other provision of the constitution, including Article 324 the Election Commission, therefore, is empowered to issue the election symbols order in the light of the wide powers vested in it directly by the constitution and election law. Reality teaches us that power and its constitutional limitations must be tested by the perverse potential or aberration in arbitrary and intrepid hands, especially in a land of poverty, illiteracy and in mobile public opinions. An election may be disputed on the ground that a candidate, otherwise qualified for a seat, was returned by persons, some of whom were not entitled. To inspire public confidence in the verdict of ballot box, it is necessary to have a speedy, fair and inexpensive adjudication of election cases, through machinery manned by persons known for their judicial temperament and integrity. 4.3 ELECTION PETITIONS: JUDICIARY Existing democracies employ two methods for the resolution of electoral controversies. The American, and Italian Constitutional laws, for instance, commits the settlement of all issues concerning the method or manner of 122

28 elections, including the qualifications of a returned candidate exclusively to the jurisdiction of legislature. The British electoral law, on the other hand, distinguishes between election disputes and controversies arising out of disqualification for membership of the House of Commons. The decision of election disputes rests with election courts consisting of two judges on the rotation for the trail of parliamentary election petitions, while the House of Common enjoys exclusive jurisdiction in connection with the latter. The transfer of jurisdiction to settle election disputes to judiciary is, however, not in conflict with the principle of parliamentary supremacy, because judicial decisions in respect of dispute elections become final only after parliamentary confirmation. The Indian constitutional law makes a distinction, on the English pattern, between electoral disputes and controversies relating to the qualification of an elected member. The dispute arising our of disqualification of a returned candidate to the parliament or a State Legislative is decided by the President and the State Governor respectively on the advice of the Election Commission which is binding. The jurisdiction to settle these disputes was, therefore, vested in an independent constitutional agency, the election Commission. According to the law as it stood prior to 1966, election petitions challenging the election of a returned candidate had to be made before the Election Commission. The Commission used to constitute Election Tribunals to try the petitions. The Tribunals were constituted from among District Judges, retired Judges of High Courts, etc., appeals against the decisions of these Tribunals lay with the High Courts. In practice it was found that the working of these Tribunals was not very satisfactory as they took a long time to dispose of petitions. The Commission, therefore, recommended the abolition of the Election Tribunals and the trial of election petitions by the High Courts. 123