Authors : Shreya Saxena, B.A.LLB (H) at Alliance University & Gunjan Maji, B.A.LLB (H) at Alliance University.
ABSTRACT
Freedom of choice is the essential footing of a democratic nation. In modern times elections were primarily associated with the structure of the proportional form of Government. The electoral systems were developed in all democratic countries of the world based on the individual’s fundamental right. Later, it was followed by candidate liberty and universal franchise. In order to put the system into action, we find that, since the 19th century, states have relied on political parties to choose candidates by following the principles and methods of the party machinery. An election is a process which a selection of a person is made, typically through the free will of the citizens in a representative democracy, to hold public office. The word democratic decision called election is derived from the Latin word ‘legere’ meaning to be chosen. An election of a candidate means the public choice of a person for the office, usually by the vote of a constituent body. The position of the legal system in maintaining free and fair elections is significant. It has not been such an easy task to win an election because all the candidate, all the party followers and workers, as well as their agents, want victory and this desire causes them to adopt undesirable tactics too often. Legislation has therefore been enacted to ban illegal acts, which may not only govern the actions of the nominee in elections but may also consider such behaviours to be corrupt practices. Corrupt practices are mostly a general term with specific reference to electoral systems and include undue influence on bribes, etc. Throughout India, the ban on corrupt practices was enforced for the first time by the Indian Government Act, 1919. The Statute was essentially a duplication of minor modifications in British Act,1883 clauses. The Indian Election Offences and Inquiries Act, 1920, which also introduced some changes to the Indian Penal Code, found disqualified persons guilty of corrupt practices. The situation persisted until the Representation of the People Act, 1951 was passed, the first Statute, our Government adopted to govern matters relating to voting, including corrupt practices.
KEYWORDS
Election, Corrupt Practices, Democratic Nation, Fundamental Rights, Government, Voting, etc.
INTRODUCTION
On the basis of the natural right of the individuals, the electoral system was established in all the democratic countries around the world. States have been relying upon political parties for the choice of candidates in accordance with the principles and methods of the machinery of the party since the 19th century[1]. Later various laws were enacted to regulate the entire electoral system. Once the candidates start the race with their prime objectives to win the election and fulfil their desire to represent the electorate, but as we all know that winning an election has not been an easy task, such desire too often causes them to adopt undesirable tactics. Thus, various laws have been made restraining prohibited activities which regulate the conduct of the candidate at elections and declare certain activities as corrupt practices.
The Act of 1951, was the very first Statute enacted by the Parliament of India, to regulate matters concerning elections. Article 324, 325, 326, 327, 328 and 329 of The Constitution of India empowers the Government to make various provisions relating to the conduct of free and fair elections in India. Based on such great power given by the Constitution to the Government of India, it has introduced various acts like the Representation of People Act 1950 and Representation of People Act 1951. It can be mentioned that the emergence of the concept of corrupt practices has always remained closely connected with the system of election of representatives in all of the democratic countries of the world. The basic push behind the evolution and various changes that were made in the concept of corrupt practices has been to enable a voter to exercise his right to vote freely and fearlessly. It is also an injunction or a restrain to all those who may like to win elections by employing means which are not only undesirable, unethical and are also prohibited by specific legislation to protect the interest of every voter in the country.
CORRUPT PRACTICES IN ELECTION:-
Corrupt practices simply mean any of the practices specified in Section 123 of the Representation of People Act, 1951.[2] The elaborated definition of various corrupt practices is mentioned under Section 123 of the Act of 1951.
- Bribery: ‘Bribery’ is defined as a wide amplitude which covers a large range of activities which may take the form of inducement affecting any electoral work. Since overspending of money during the elections is done to attract the voters and influence the result[3] and therefore, the election candidates or their supporters may be attracted by the different forms of gifts, offers and gratification to voters or to the competing candidates of various different parties. Voters may be in various cases being rewarded for their voting to a particular candidate or for not favouring any candidates during the elections. Huge amounts may be spent by a political party to gain votes by giving benefits like entertainment purposes, free conveyance, treating voters or giving in cash or kind to influential persons or to the common voters, etc. Such or any gratification made by the candidate with intent to pollute the purity of elections shall fall within the corrupt practice of bribery defined under Sub-Section (1) of Section 123 of the Representation of People Act, 1951. Smt. Indira Gandhi distributed wine and cash during the elections, and such distribution was termed as bribery[4]. The corrupt practice of bribery is being committed by a person who provides gratification as well as by the person who is accepting any such gratification.
- Undue Influence: The freedom of choice to vote for a particular party or to have a free right to stand for an election shall be given to every citizen of India. Electoral right to vote includes right to know about the policy and programmes of various political parties and also about the candidates. The term undue influence lies in between the right of free choice to elect and the right of the candidate to canvass, and when such canvassing results in interference unduly into the free choice or judgement for a vote, such interference shall be regulated by law, because mere influence can not be termed as a corrupt practice. An influence in elections amounts to undue only when abuse of influence is exercised in contradiction of the proper influence. Yet, in any situation where the choice of any candidate is being affected due to irrelevant consideration like social, economic, political, religious constraints or any type of threat, fear, duress and falsehood which leads to delay or prevents the free exercise of the right to vote of any elector, is prohibited.[5] Attempts to influence may not be unlawful in the Court of law unless the corrupt intent has been established against the candidate. Therefore, an allegation of undue influence shall be proved as a criminal charge. Any charge of corrupt practice under the Act of 1951 shall be proved beyond the reasonable doubt because if this concept is not applied in such situations, it can lead to a very serious prejudice that would be caused to the elected candidate who may get disqualified from fighting an election for a period of six years.[6]
- Promoting hatred on the basis of the religion: The Supreme Court laid down that introduction of religion into politics is a direct denial to follow the Constitutional mandate as well as a positive violation of Constitutional obligation, duty, responsibility[7]. A political party that secures its powers through policies which are religious and caste orientation policy disintegrates the people on such grounds. It basically divides the people and disrupts the social structure on the grounds of religion or caste, which is offensive and against the basic features of the Constitution. The provision of law relating to the corrupt practice of appeal on the ground of religion, caste, etc. is a peculiar feature of election law of India. Since the provisions were drafted in the general terms, thus became the duty of the Court to determine the question of what appeals should be treated as a religious appeal or communal appeal.
- Publication of False Statements: The publication of any false statement in relation to a rival candidate is considered to be prohibited as it falls under the ambit of corrupt practices.[8] The election law also gives the freedom of criticism of political nature during the elections. Such criticism shall be allowed as it is in the interest of democracy. In order to maintain purity and fairness in the election process, character assassination and vilification of any candidate shall not be allowed. Thus, the publication of false statements made by a candidate by the various means of election shall be considered as a corrupt practice under this section, such as speeches, pamphlets, booklets, handbills, posters, press, television, etc.[9]
- Free Conveyance of Voters: Hiring or procuring of the vehicles or vessels for the transportation of voters to or from the polling stations is prohibited under Sub-Section (5) of Section 123 of the Representation of People Act, 1951 because this activity may have the capacity to influence voters and it hampers the free exercise of their franchise as well. The candidates are only permitted to use such number of vehicles which are specified on a specific day for the purpose of the elections.
- Authorising expenditures: Sub-Section (6) of Section 123 of The Representation of People Act, 1951 says that any expenditure not done in accordance with the guidelines given under section 77, shall fall under the ambit of corrupt practices. The incurring or authorising of expenditure shall be done in contravention of section 77 of The Representation of People Act, 1951. The section[10] laid down various terms and conditions on such expenditures.
- Obtaining Services of Government Servant: The Government servants are required during the elections to provide confidence to the public to remove any chances or possibilities for the people to think that the elections were not held freely and in a fair manner. To follow the same, they were asked to avoid giving room for any suspicion that they were favouring any party or any candidate during the elections. The Government servants play a crucial role in the public administration as well as in the implementation of policies, thus shall not take part in any election campaign or canvassing. That is the reason for government servants to take special care in not lending their names, official positions or authorities to assist one political party or candidate against any other candidate or political party. It is expressly prohibited that Government servants shall not take part in politics and elections[11]. Breach of official duty in relation to elections,[12] acting as an election agent[13] and influencing their voters[14] are punishable under the Representation of People Act, 1951. Thus, procuring or obtaining the assistance of Government servants during the elections is a corrupt practice which is mentioned under Section 123(7) of the Act of 1951.
- Booth Capturing: The ones who believe in the influence of muscle power for the elections to gain votes and support, do not put their beliefs in soliciting votes from free and fair election by the electorate. Obtaining votes by terror, coercion and other illegal means is the very antithesis of democracy. This is one of the major reasons for the disenchantment and hatred of the people with the electoral process itself, thereby losing their faith in the democratic government. Though the Election Commission has taken serious measures, issued direct warnings against booth capturing, etc. but it had become a futile exercise. Since the early eighties, complaints concerning the booth capturing have been steadily increasing,[15] therefore, Sub-Section (8) was inserted in Section 123 of the Representation of People Act, 1951 to control such activities by Amending Act No. 1 of 1989, which specified booth capturing by candidates or their agent or any other person as corrupt practice during the elections.
OBSTACLES IN ELECTION
(a) Criminalisation and Corruption
We’ve been hearing of scandals in political life over the last several years where the political leader and officials squeezed the country increasing into their own pockets, diverting them to personal usage. Government finances were misused and damaged the nation’s social and ethical climate. Corruption has been the rule of public life and an aberration of ethics.[16] Every day in the news media, there are stories regarding the leaders who either engaged actively in criminality or were reportedly accused of promoting these acts by gangsters, muscle power and underworld dons. Political deception and the criminalisation of society are no two completely different things. Akhilesh Pratap Singh, Pappu Yadav, D.P. Yadav and several others who employ the illegal tactic to win a majority that is explicitly banned throughout our electoral framework.[17] Criminals and henchmen, in the early stages such components were traditionally being placed away from overt participation in the electoral system, but nowadays, mostly because they have developed their own power foundation and become a rule unto themselves. Since the degree of protection is calculated by the scope of government, people with a criminal record have found a way to impose themselves on the Government. Across different sections of the nation, the relationship between drug groups, police, industrialists, judiciary, political leaders, political parties and its members has emerged publicly.
(b) Marketability and Defections[18]
The ‘Vote for Note’ Scheme, is one of the most common methods of election marketability. Probably the first and most conspicuous instance of the deterioration of political and moral principles in India’s legislative existence is the constant game of loses and the toppling of regimes.[19] Electoral fraud was the 2015 cash-for-votes scheme, the second after the 2008 cash-for-votes fiasco. The controversy of 2015 started because of Telangana State’s Telugu Desam Party Members appeared in a video clip, broadcast throughout the newspapers, bribing a named M.L.A. for his support in the 2015 Telangana Legislative Council elections. In the age of foreign funding and coalition regimes in the nations and at the Core, it is an accepted reality that people’s leaders in the legislatures and government allow money to fund a national administration.[20] Parliament or state legislatures then were a marketable asset and a matter of selling and acquisition or horse-trading. India’s politics slowly morphed into a political grab for private ends. For today’s leaders, public welfare and well-being of the people is a minor matter.
(c) Money Power in Elections
Money influence is a key element in elections as the expense of new elective communication tools is high. The presence of big funds usually helps to raise a candidate’s amount of votes. The past of electoral law has seen the advocacy displayed by the judiciary in reading the rules of law related to election expenditures and the political leadership’s effort to nullify the impact of the Supreme Court’s activist approach by amending the legislation.[21] Every nominee shall, either by himself or his election officer, maintain a clear and complete record of any expense sustained or approved by him or his election officer in relation with the election, between all the date on which he was elected and the date upon which election results were announced, including both dates.[22] The amount should not surpass the prescribed number. [23]That spending by the political group, associates, and family of a candidate etc. should be regarded as the expense incurred or approved by the candidate became the problem in several petitions for elections. The court’s prior opinion was that costs expended by the campaign, relatives, etc. to promote a candidate’s election chances would not come under Section 77.[24]
(d) Communalism, Casteism and Mushrooming of Political Parties
Secularism, equality and constitutional freedom are included in the Constitution. This seeks to cultivate solidarity among all people preserving the dignity of the person and the nation’s cohesion and honour. And this document operates in a societal climate which is not necessarily conducive to the smooth operation of political institutions. Indian society’s social framework is profoundly rooted in the caste-structure network. Communalism became a persistent issue in India. One of the reasons that have kept India from being a country is the presence of various faiths that hold the country separated into several facets of life.[25] Taking into account the conventional context of Indian cultural-political set-up, we will admit that religion, race or culture has managed to play their position in electoral politics. While the elections got better acquainted the populace with the methodology of democracy, they also equipped the citizens with the growing popularity of communalism and casteism as a political force, as well as the opportunity to express their desires and demands. The advent of new rulers by way of elections raises fresh problems for the constitution’s workings.[26]
RECOMMENDATIONS
As one knows, there are numerous faults in the way of how elections are contested in the country, and some of the glaring faults are in the laws itself. First, Section 77 of the Act should be revised to cover any costs borne by the nominee throughout the electoral cycle for accounting purposes, and the valuation of current, as well as previous assets and liabilities, will proceed during the year. Second, there is a need for the establishment of separate courts for timely hearing in lawsuits involving contestants and local officials. Third, even if the Court presents allegations against him and not on indictment, the candidates should be barred from contesting elections. Fourth, as far as the competence of an individual who runs for election or is a representative of the political body or legislative is concerned, there seems to be a need for them to have some kind of minimum academic credentials. Fifth, the unethical tradition of free transportation of electors that be stopped by building adequate polling stations in the constituency to render it convenient to attend the polling booth inside the jurisdiction of maximal electors. Sixth, the only response to the usage of black money in campaign financing is that the government should assume the biggest brunt of election expenses. The very essence of electoral corruption resides in rising the burden of battling elections. The administration should recognise the study of the Indrajeet Gupta Committee on State Finance, and its suggestions should be adopted. Seventh, the need for official machinery throughout election campaigns must be totally prohibited. Subsequently, under Section 123 of the Act, abuse of official control and resources by the candidate of any party in government should become a corrupt procedure.
CONCLUSION
As stated in the discussion, free and equal elections are the cornerstone of democracy. It was also observed in the above analysis that, the parties or their representatives or other individuals turn to unethical means and fraudulent activities to secure elections. The Representation of People’s Act is the primary law that provides rules for regulating these activities. Casteism and communalism have often been used for the development of religious vote banks and for the acquisition and preservation of control. The trend is being supported by political parties. The social division that the Constitution sought to eradicate has slowly been on the rise. This pattern often gave rise to national splintering groups and posed a risk to the nation’s stability and dignity. Thus, that’s why the object of a prevalent electoral roll or fundamental right to vote or challenge of contesting elections is getting defeated. In the Parliament, seat allocation has been an allurement method for unequipped parties. The most negative aspect in the current democratic environment is criminalisation in elections. A large number of offenders in the state have obtained political positions, and their numbers are growing. It is now a well-established reality that high-level criminalisation of elections and abuse undermines our democratic democracy building. The black money raised by criminal professions is overlooked. Thus, building a network of strength based on muscle power to be used by political leaders towards abuse during voting, stealing ballots, tampering; threatening voters and even murdering rival candidates. Throughout India, communalism and religious intolerance leave the country divided into other areas of life like elections. Those differences within the masses hit squarely with the legally enshrined secular government. Examination of the clauses found in Section 123 of this Act dealing with unethical activity and other similar issues shows that fraudulent activities have tended to affect the political process notwithstanding the clear legislative prohibition. Much of this includes urgent changes not just in the governmental set-up but also in the law dealing with even unethical activities.
[1]ELECTORAL CORRUPT PRACTICES AND JUDICIARY<https://shodhganga.inflibnet.ac.in/bitstream/10603/8114/10/10_chapter%204.pdf> accessed on: 22 March 2020.
[2] Section 2(c), The Representation of People Act, 1951.
[3] Report on the Fourth General Elections (Vol. I), Election Commission of India, pp. 106-7;
[4] State of Uttar Pradesh v. Raj Narain (1975 AIR 865, 1975 SCR (3) 333)
[5] Section 123(2), The Representation of People Act, 1951.
[6] Manmohan Kalia v Shri Yash, AIR 1984 SC 1161.
[7] S.R. Bommai v. Union of India, AIR 1994 SC 1918.
[8] Section 123 (4), ibid.
[9] Supra note: 10.
[10] Section 77 of The Representation of People Act, 1951.
[11] Rule 5(1), The Central Civil Services (Conduct) Rules, 1964.
[12] Section 134, The Representation of People Act, 1951.
[13] Section 134-A, Ibid.
[14] Section 129, Ibid.
[15] Rananjaya Singh v B. singh,AIR 1954 SC 749.
[16] Sethi Harsh, (April, 1990) Notes on Electoral Violence, SEMINAR, 368, < file:///Users/drsudipmaji/Downloads/18.05.2014.pdf >, accessed on 11th February 2020
[17] Kumar Akhil, “Election Laws and Corrupt Practice in India” (2014), Volume 01, No.5, Page 224, Published in International Journal of Multidisciplinary Approach and Studies,<https://www.academia.edu/35428740/Election_Laws_and_Corrupt_Practice_in_India > accessed on 26 March 2020
[18] ibid, Page 225
[19] ibid
[20] < https://frontline.thehindu.com/politics/cashforvote-scam/article7391896.ece > accessed on 28 March, 2020
[21] ibid
[22] Representation of People Act, 1951, Section 77 (1),<http://legislative.gov.in/sites/default/files/04_representation%20of%20the%20people%20act%2C%201951.pdf > accessed on 28 March, 2020
[23] ibid, Section 77 (3)
[24] Rananjaya Singh v Baijinath Singh, AIR 1954 SC 749
[25] Grover Verinder, “Elections, Electoral Mechanism and Behaviour in India”, (Ed. 1985), at 699, 717, < file:///Users/drsudipmaji/Downloads/09_chapter%203%20ELECTION%20LAW.pdf >, accessed on 23 March 2020
[26] ibid