51

CHAPTER - III

ELECTIONS AND ELECTORAL LAWS

The periodic general elections occupy a place of primacy in a

democracy because the citizens directly through electoral process and

indirectly through other complex procedures influence the Government in

many ways. Thus, democracy is a form of Vox Populai. The general elections

and the exercise of franchise are regarded as the most obvious means of

influence as it enables the general public to select political leaders to represent

their opinion. The citizens also contact the Government officials, correspond

through the media, engage themselves in various forms of political

participation, and thereby the general public involve themselves in a variety of

formal and informal methods of political discussions and articulating their

view-point on the manner and the method of functioning of the Government.

The voting choice of the electorate concerning political parties and the

individual preferences of electorate in selecting political leaders – either of

political parties or independent candidates – may be viewed as a conversion of

the public opinion into specific political decisions.1

The elections are quite important because the electorate make crucial

decisions, which affect the country as a whole. The electoral outcome in

reality determines as to which party will manage the affairs of the Government

and make suitable public policies. The selection of leaders through electoral

franchise may be regarded as political process through which the people with

requisite political ability are recruited to assume political power and maintain

the reigns of administration. It is equally true that the political elite may not

always act as they promise but the choice of elite provides a form of popular

control of policy outcomes.

52

Research in Political Science was mostly confined to constitutional,

legislative, institutional and juridical dimensions, until 1950. But later, with

the advent of behaviorism, thrust is laid on the study of political actors – both

institutions and personnel, who manage the political institutions. Behaviorism

has revolutionized the entire political studies for it has emphasized on political

actors and not institutions. The thrust of David Easton’s input and output

analysis2

and Gabriel Almond’s Structural and Functional approach3

has

projected a shift from institutional analysis to operational explanation in terms

of actual functioning of the political system. Functionalism in political system

anvils greatly the actual performance of the political taking into consideration

not only the structural variables but also the functional variables.

Functionalism emphasises more on functional variables, which are primarily

concerned with political socialization and recruitment, interest articulation,

interest aggregation and political communication.4

All these aspects are significant for they throw light on the role of

electorate and general public in a democratic system influencing the structural

variables to perform certain functions in order to realize the avowed objectives.

Elaborating the theory of democracy, Lord Lyndsey, has mentioned that there

is always a great gulf between fine elevating theories about democracy, which

we read in books on political theory and the actual facts of life. 5

It is, therefore, pertinent to analyse and examine the real functioning of

political system by taking into consideration the role of parties, the role of

interest groups, and the actual process of elections apart from the political

leaders. W.H. Morris-Jones had also suggested that it is a futile exercise to

make an impressionistic comparison of constitutional systems. On the other

hand, it would be worthwhile to take up penetrating studies of a particular

political system which helps a great deal in understanding the actual

functioning and the role citizens in influencing the political systems.

53

It is significant that the study of elections assumes greater relevance to

the overall understanding of the wider political system. An in-depth analysis of

general elections micro and macro levels could be significant in order to

understand the nature of politics, the issues on which the electoral contests

takes place, strategy adopted and put into operations by the political parties as

well as the elite, the political alignments that operate among parties for

electoral adjustments, role played by formal and informal leadership of varied

interest groups and finally the perceptive, the behavioral and motivational

pattern exhibited by the adult citizen population in choosing their political

decision-makers for a specific system.6

The study of elections is furthermore significant because it helps for a

clear comprehension of political manifestos and the priorities lay down by the

political parties. Normally, the political parties in a democracy formulate their

programmers through the process of interest aggression (Gabriel Almond).

These manifestos project the objectives and the programmers including

priorities the parties lay on national and state issues and thereby attract the

electorate in their favour. In reality, a political manifesto has a great

significance for it explains the thrust of political parties on divergent issues and

policies, and different strategies to meet such divergence needs of the general

public coming from different strata of the society. The political parties unlike

the interest groups cut across all regions, all religious groups, all communities,

castes and sub-castes and secure their political support to win the elections.

Therefore, a party will have to represent varied sections of the society and

thereby formulate a comprehensive political election manifesto to meet their

aspirations as well as their demands. Sir Anthony Downs in his Economic

Interpretation of Democracy7

compared political parties with that of producers

of varied commodities and the electorate as the consumers. The parties will

have to produce such commodities, which are liked by the consumers. This is

the process through which the parties manufacture commodities in the form of

political manifestos and present before the electorate and the later choose the

54

party, which produces best commodity at a price, they are capable to pay. The

election manifestos thus explain the aims and objectives of political parties and

the strategies through which they aim to accomplish them. Therefore, the

general elections could be regarded as an appropriate mechanism to study the

objectives/priorities of the political parties.

The foundation of democratic government lies in a high degree of

participation of citizens in public affairs, civic matters and policy formulations

in varied forms. The success of democracy largely depends upon the faith of

the people in the political system as well as political institutions. The faith and

interest of general citizen population may be construed as vital elements for the

growth and stability of democratic institutions. Therefore, legitimacy of

institutions has to be judged by the general verdict of the people.8

The periodic

general elections and participation of citizens may be regarded as the

fundamental criterion to judge the extent of success or failure of democratic

system. The successes depend on the extent of legitimacy acquired by the

political institutions at the hands of the general public. The system may break

down if the extent of legitimacy by the ruling elite or political institutions is

low. It weakens if it fails to accommodate the emerging political elite and

rising diversified political groups. It is held by political scientists that crisis of

legitimacy denotes the crisis of change. Therefore legitimacy may be viewed

as yardstick to measure the extent of stability of democratic and political

leadership or democratic institutions in the country.

As is known, an individual plays a dual role in a democracy--- the role

of a Subject as well as a participant. Being a subject, the citizen owes

allegiance to the system and as citizen participant involves himself in the

policy-making processes at various levels of the government in different forms.

Gabriel Almond comments that the role of citizen representative is, in some

sense, a higher form of democratic participation. It is through such

participation that an ordinary man gains influence over the affairs of

55

governmental affairs.9 Besides the citizens as participants also maintain balance

over the functioning of Government. Therefore, they tend to influence the

policy of the Government so as to meet the aggregate demands of the general

public. Thus, an individual plays the role of a competent citizen in a

democratic polity. As a competent citizen he tends to affect Governmental

decisions through political influence by forming groups, by threatening

withdrawal of vote or other reprisals.10

As citizens responsible as well as

competent, they tend to accord approval to the policies of ruling party or reject

totally the measures contemplated by the government. A positive action of the

legitimacy to the ruling elite as well as the political institutions is a healthy

symptom for democratic system. S.M. Lipset has argued that legitimacy and

efficacy are co-terminus.11

These two dimensions are inter-dependant as well

as complimentary. An eclipse of legitimacy would mean the effect of ruling

elite to function effectively and implement public policies conforming to the

pledges made on the eve of polls. The ineffective and less effective

functioning on the part of the political parties would be disastrous not only to

the political party but also to the political system. Such as ineffectiveness on

the part of the political party would give room for protests and agitations in

different forms from various quarters within the society. It may be viewed as

an indication of withdrawal of confidence or a fall in the extent of political

legitimacy.

S.M. Lipset has rightly mentioned that “The stability of any given

democracy depends not only on economic development, but also effectiveness

and the legitimization of the political system.12

Therefore, the effectiveness on

the part of the ruling elite is significantly necessary so as to fulfil the basic

requirement of the society. In reality, the political authority will have to strike

a healthy balance between the goals of the system and the claims of various

groups from the society. It is within our reach that the political system is

composed of array of social groups marked by divisions of classed – religious,

ethnic origins, castes , sub-castes, linguistic groups, groups and regional

56

variations. In view of such differences, there is always a possibility of conflict

among the said groups; but the democratic system will have to resolve those

conflicts in a healthy manner. The rise of conflicts and resolving such

conflicts, in fact, is a part of democratic process. Effectiveness of political

authority depends on its capability to institutionalize the conflict and explores

varied bargaining measures and means that optimize consensus for

accomplishment of ideal goals and national values.13

The effectiveness of

political authority is vitally necessary to contain conflicts and positively work

for the development of the society. Therefore political effectiveness may be

viewed as a pre-requisite of political authority and such effectiveness

strengthens legitimization of political authority as well as the political

institutions.14

The study of general elections is quite necessary and even significant

because, it attempts to unveil the extent of legitimacy of the ruling party as well

as effectiveness of it. Besides such a study serves the basic purpose of not only

continuance of the legitimacy of the old legitimate but also an instrument of

change and re-distribution of political power. 15

The mechanism of elections is

viewed as a peaceful ballot revolution through which the omissions and

commissions of the ruling authority are accounted, and on the other hand, the

role and sincerity of the opposition parties is equally measured and thoroughly

scanned. The measurement and scanning of the ruling party, on the one hand,

and the opposition on the other, helps a great deal in the expression of public

opinion through the ballot box. In a competent multi-party system or bi-party

system there is always a periodic shift from one political party to the other or

from one political authority to the other, when the actions of Government are

totally different from that of demands and aspirations of the general public.

The general elections serve the basic purpose of the periodic shift in the

political elite.16

In a democracy, there is always a competition among political

elite and the privilege groups on the one hand, and the emerging non-privilege

57

groups on the other. The method of elections is a devise through which non-

privileged elite asserts for re-distribution of political power. The Congress

party in Andhra Pradesh was formally entrenched in political power since the

formation of the state in 1956 until 1983. During the course of State Assembly

elections in 1983, Telugu Desam Party had come to power which was not only

a great surprise among party analysts, political pundits but also the general

public. The lapses on the part of Congress were properly utilized and

galvanized by the T.D.P. to assume political power while be-littling the

established non-congress national political parties of India. Similarly during

the year 1989 the electorate withdrew support to T.D.P. and once again

installed the Congress party in political power. Thus, there has been a shift in

political authority from one structure of elite to that of another structure of

elite. The periodic elections therefore give such a kind of scope for a change in

rise of political leadership or a change of Government.

General Elections serve an important purpose of regulation of public

policies, mobilization of public opinion and institutionalisation of political

participation.17

In a democratic form of Government, meaningful popular

participation has a proper place. The ever-vigilant public participating in a

large numbers through such periodic elections articulate their socio-economic

and political interest and thereby demand necessary administrative action. In a

way, the general elections enhance a greater political awareness among masses

and accelerate the element of political interest and articulation.

It is held by political scientists that the periodic general election has a

significant impact in the process of modernization.18

India being an oriental

country is marked by traditional values. However, with the process of

modernity gradually taking place, and the people becoming attuned to such

process of modernization, there is a constant rupture between tradition and

modernity. The traditional forces tend to take such modernizing approach and

demand from the state rapid socio-economic development in every successive

election. The ruling party as well as the opposition will have to enhance the

58

dosage of benefits to the masses and thereby lure the electorate in their favour.

After assuming power the ruling party will have to make efforts in fulfillment

of those pledges which are made on the eve of general elections. In this

process a kind or modernization automatically takes place and help promote the

aspirations of the general public including such traditional groups.

General elections also help considerably in bringing out real politics to

surface. Normally ideological stance and the inherent political colour of the

political elite is always concealed but the elite tends to come out in true colour

and expose their stand on political dimensions. In Indian context a great

majority of election battles undertaken are based on sociological and other

local issues including the national priorities and issues altogether.19

Such primordial and local loyalties have a greater significance over the

authentic national and universal issues. Similarly the secular factors like

ideology, party programmes, performance of candidates, and commitment to

certain values are normally given a good-bye with a view to secure political

victory at the polls. The entire gamut of election tussles can really be

perceived through periodic general elections and the real complex invariably is

brought out. It is a device by which we can reach through nature and behaviour

pattern of the political elite and the values cherished by them.

The general elections at the national and state levels have significant

relevance in the realm of actual politics. As is known, there is a linkage in

between local politics with that of state politics and national politics. There is a

great measure of impact of localism on state politics and similarly such state

politics will have an impact at national level. In view of the fact that we have a

federal polity besides democratic decentralization in the form of Panchayat Raj

system introduced late in 1958, we find a substantial relationship in between

the inter-play of politics from that of local to state level. It is held by

observers that the Panchayat Raj system had greatly helped the ruling congress

59

to mobilize the electorate to Panchayat Raj functionaries. Prof. Iqbal Narain

has commented that the Panchayat Raj system has operated as a vote-catching

device rather than developmental mechanism in India.20

It may even be added

that after preponderant election victory of Congress Party (ruling) during 1971

General Elections, there has been a tremendous support to it because the

victory in 1971 contributed for a sea-change among masses for a shift in their

political support from that of opposition to that of ruling congress. In view of

such a predominant support pattern Smt. Indira Gandhi leading the Congress

ruling party at that time secured phenomenal political legitimacy during 1972

general elections among several states in India. We find a clear linkage

between Nation to state and to local politics as well as vice versa.

Political alliances are not uncommon among political parties.These

alliances are at times short-lived and at times tend to take shape of merger also.

Alliances are made by parties with an eye to win the elections. These alliances

are formed and very soon shattered down to pieces in view of politico-socio-

economic factors. In India, there are several such instances of political

alliances made by parties including ruling Congress and even instances of

break-down of such alliances in a short span of time.21

Political alliances made on the eve of elections as indicated above are

meant to win the polls but the parties tend to resort drifting in different

directions after obtaining political power. Consequently, there is a breakdown

of alliances and collapse of coalition Governments. Such instances and

coalition Governments and their breakdown are noticed in several states of

India viz., U.P., Bihar, Madya Pradesh, Punjab, Haryana, Orissa and even

Kerala. In a way, the general elections exhibit the nature of alliances, issues on

which such alliances are made and equally significant the issues on which such

alliances are broken down. The study of general elections therefore provides

an opportunity for examining how political parties with different ideological

60

stance tend to submerge their political differences and unite temporarily for

varied political reasons.

Another important dimension of the study of general elections is to

throw light on the role of big business, their support pattern to different

political parties- ruling and opposition. 22

In this context, the U.S. may be cited

as an example, wherein Jews, the richest community spends millions of dollars

in the presidential elections and support politically a candidate to occupy White

House. It is because the President after getting elected invariably extends

political support to Jews in general and the state of Israel in particular. In

India, the big business, such as exporters, mine owners, industrialists and big

business magnets have a significant part in the periodic general elections by

way of extending support to political parties. The Swatantra Party which had

surfaced the Indian scene during 1958 23

amply focused its attention on the big

business, middle-class farmers, as well as rich peasantry and former Princes.

The party had drawn substantial political support from the business

community. Significantly the business community while extending sympathies

towards Swatantra Party also rendered a greater political and financial support

to the Congress Party in the form of the Party donations. C. Rajagopal Chary

had humorously commented that the big business in India extended its

sympathy towards Swatantra Party, while it opened its moneybags to the

Congress. In this process it is undenying that the role of big business in

installing a party in power could be thoroughly visualized by exhaustive and

scientific study of periodic general elections.

Political Scientists have also commented that U.S.A. and former

U.S.S.R. have played tremendous role in making and un-making the

governments among developing countries of Asia and Africa. It is

understandable that the two powers opposed to each other played a significant

role in extending their support to parties depending on the situation prevailing

among the developing nations of these two continents. Though their role is not

61

actually visible and cannot be ascertained, yet it is indisputable that they tend to

have a say in installing a particular party in power so that the government may

be amenable to their ideological viewpoint. Periodic general elections

accelerate the process of political efficacy among the citizen population. The

political efficacy implies personal effectiveness of the citizen population in the

political system. It may be defined as a feeling of an individual with the

political system, an impact upon the political process, that it is worthwhile to

perform one’s civic duties.24

Further it is an expression of feeling that political

and social change is possible and that the individual citizens and play a part in

bringing about such a change.25

As is known that the vigilance is the price of

democracy. If the people are vigilant, active and self-conscious democracy

would be successful. On the contrary, if they are indolent, unconscious and

non-vigilant, democracy operates as that of oligarchy.26

The personal political

effectiveness of citizen population may be considered as a pre-requisite for the

success of democratic system. It can thoroughly be examined through the

study of periodic elections as to what extent the citizens get their grievances

ventilated and how their problems are resolved. Prof. Iqbal Narian has aptly

mentioned that the study of elections is quite helpful to understand the process

of political socialization throwing light on the following dimensions:

a) How far the democracy has a value has been internalised

among political elite.28

b) The real imparts of so-called revolution by ballot box.

c) How far the election complex are a case of continuity,

whether there is a radical break with the earlier general

elections, on the one hand and maintenance of national

complex, on the other.29

Therefore, these aspects can thoroughly be analysed through a study of

General Elections, in a country for inducting the political representatives

committed to certain basic values and adhere to the ideals of national unity and

62

around development. The system could be quite successful if the general

elections are held in a manner that is befitting when the visible and invisible

restrictions and use of different forms of violence, muscle and money power

are curbed. Furthermore, the system would be quite fruitful if the elected

representatives behave in a more responsible manner committed to national

ethos and the philosophy underlined in the Constitution.

The democratic system as a form of Government is most viable despite

the fact that it is highly expensive. It success in largely dependent on how well

the representatives perform their functions and utilize the deliberative bodies

such a National Parliament for enacting suitable legislations for transforming

the country in a progressive manner and bring about all-round development. It

is true that infant democracies certainly face several hurdles in the most fruitful

application of the system, yet with the passage of time with mature leadership

and the role played by the statement with a future vision may ultimately bring

about sustained development and progress in myriad dimensions of national

life.30

3.1 ELECTIONS: DOCTRINE OF SOCIAL JUSTICE

If democracy has anything to do with freedom – and freedom with

responsibility – then the electoral system might well be the very heart of

democracy. If this sounds like an over statement let me try and sketch briefly

what all does the electoral system include. It determines who can or should be

allowed to vote. When should electoral rolls be prepared, revised, and how?

The formation, functioning including funding, etc. of political parties is also an

integral part of the electoral system. Included also is the basic question, who

can contest an election. Then comes the actual conduct of the election which is

what is most associated with the electoral system. On what basis is the winner

of the election decided is another key element of the electoral system. These

are some of the pre-election and during election activities. There is a whole

63

range of post election activities during which the outcome of the electoral

process are managed, such as post election disputes, election petitions,

formation of the government, and subsequent functioning of the government

including issues such as defections. This illustrative list indicates the critical

role of the electoral system in ensuring an effectively functioning democracy.

While interpreting a statute the Court may have the occasion to consider

the same having regard to the doctrine of social justice but such consideration

must be kept confined only to a case where the legislative intent is not clear or

is ambiguous. Once a plain reading of a statute makes the legislative intention

clear and unambiguous, the question of attributing any other meaning upon

taking recourse to the doctrine of beneficial legislation or social justice would

not arise at all.

The wisdom of the Legislature in making an enactment can again be not

a subject matter which would come in the realm of the Court’s power of

judicial review under Article 226 of the Constitution. A statute when validly

enacted must be given effect to subject to the constitutional limitations of the

legislature. Once it is held that the Act is not violative of any provisions of

Part III of the Constitution or any other constitutional provisions the Court

must restrict its enquiry.31

3.2 ELECTORAL LAWS:

The present law relating to elections vis-à-vis elections is mainly

contained in the Constitution in the two enactments of the Parliament dealing

with Peoples Representation, certain provisions of the Indian Penal Code and

certain other specific laws. Most of these are post constitution enactments.

However, a close study of several provisions points out that their history and

origin dates back to pre-Constitution statutes or statutory rules. For example,

the entire machinery of the process of election was dealt with by a number of

64

orders issued under the Government of India Act, 1935, including orders

dealing with the conduct of elections and corrupt practices during elections so

far as the Criminal Law goes and it was in 1920 by Act 39 that certain new

provisions were inserted in the Indian Penal Code in the shape of Chapter 9A

comprising Sections 171A to 171I of the Indian Penal Code. Certain

provisions, which could become relevant to the process of elections, even if in

an indirect manner, appear not in the above mentioned chapter but in certain

order parts of the IPC, For example, the promotion of enmity between different

groups on grounds of religion, race, place or birth, residence, language, caste or

community or any other form whatsoever is punishable under Section 153A of

the IPC. The same section punishes acts which are prejudicial to the

maintenance of harmony between different groups. Organising any exercise,

movement, drill or other similar activity with the intention that the participants

in such activity shall use or shall be trained to use criminal force or violence

etc., is an offence under (Clause C) Section 153A. Also, there are other

provisions in the IPC (such as defamation) which would be relevant in the

context of elections. Some of these were already continued in the IPC as

enacted but few of them such as Section 153A, 295A and a few others come

into the code by subsequent amendments.

3.3 Legal Framework:

Not only have there been no serious attempts to reform the electoral

system, some of the actions that have been taken seem to be in the opposite

direction. A prime example relates to election expenditure. It has been more

than 25 years since Explanation 1 was inserted in Sub Section (1) of Section 77

of the Representation of People Act which enabled unaccounted money to be

brought into the election system by maintaining that expenditure incurred or

authorised by any one other than candidate, including the political party, and

friends and supporters of candidates, will not be counted as the election

expenditure of the candidate. There has been widespread comment on this issue

65

for more than 25 years now but Parliament has not found time to delete

Explanation 1. Why? Possibly because it is convenient and comfortable for the

politicians to have a system which can be manipulated. Big money is brought

into the elections under the garb of Explanation 1 (which in the opinion of the

Supreme Court has removed even the “fig leaf to hide the reality” of the impact

of big money on the outcome of elections). Big money is contributed by those

elements who look for favours and paybacks in kind from the politicians after

they get elected. And the politicians are an active and willing party to the

arrangement. This is why it seems clear that left to the politicians, significant

reforms of the electoral system are unlikely. Given this stalemate what does

one do?

The major provisions in the IPC relevant to elections are contained

between Section 171A to 171I. Section 171A defined the crucial expression

electoral right, as meaning the right of a person to stand or not stand, to

withdraw from being a candidate or the right of a person to vote or refrain from

voting at an election. Having defined the crucial expression the legislative was

able to use the expression in Section 171(B)(1)(i), Section 171C(i) etc., which

are the important and substantive sections dealing with bribery and undue

influence in elections.

3.3.1 Corrupt Practices:

Section 123 of the Representation of the Peoples Act, 1951 enumerates

the corrupt practices for the purposes of Act, 1951. These are:

1. bribery;

2. undue influence;

3. appeal by a candidate or his agent or by any other person with the

consent of the candidate or his election agent to vote or refrain from

voting on the ground of his religion, race, caste, community or language

etc;

66

4. Promotion of or attempt to promote feelings of enmity or hatred between

different classes of the citizens of India on grounds of religion, race,

caste, community or language;

5. Propagation, commission or glorification of the practice of sati;

6. Publication by a candidate or his agent, etc., of any statement of fact

which is false or defamatory;

7. Hiring or procuring of vehicles or vessel for the free conveyance of

voters;

8. incurring or authorizing of expenditure in contravention of Section 77

i.e., in excess of the amounts prescribed;

9. obtaining or procuring any assistance from any person in the service of

the Government;

10. Booth capturing by a candidate or his agent or other person.32

Bribery as a corrupt practice is defined as under:

(A) Any gift, offer or promise by a candidate or his agent, or by any other

person with the consent of a candidate or his election agent, of any

qualification, to any person whomsoever, with the object, directly or

indirectly, or inducing

a) a person to stand or not to stand as, or to withdraw or not to withdraw

from being, a candidate at an election, or

b) an elector to vote or refrain from voting at an election, or as a reward

to

i) a person for having so stood or not stood, or having withdrawn

or no withdrawn his candidature, or

ii) an elector for having votes or refrained from voting.

(B) the receipt of, or agreement to receive, any qualification, whether

as a motive or a reward

a) by any person for standing or not standing as, or for withdrawing

or not withdrawing from being, a candidate; or

b) by any person for whomsoever for himself or any other person for

voting or refraining from voting, or inducing or attempting to

67

induce any elector to vote or refrain from voting or any candidate

to withdraw or not to withdraw his candidature33

The case of the corrupt practice of bribery lies in attempting to do

something for those opposed to the candidate, with a view to changing their

votes and as a bargain of votes. Dev.Raj Vs.Bhagwan Das, AIR 1971 SC 241.

Reference was made in this case to earlier judgements of the Supreme Court on

the point Om Prabhu Jain Vs. Avinash Chandra, AIR 1968 SCC 1083; Ghasi

Ram vs.Dhal Singh, AIR 1955 SC 755. There is also a good discussion of the

element of “bargain” in Bhavan Kumar Shastri vs.Mohan Lal Sukhadir, AIR

1971 SC 2025; (1971)1SCC 370 and in H.V. Kamath vs. V. Nitraj Singh AIR

1970, SC 211.

The Supreme Court in a judgement in 1994, discussed the object of gift,

offer or promise of gratification and held that on the material on record, of

course the Court has to be satisfied that the gift, offer or promise of any

gratification has been made to the electors wsith the object directly or indirectly

to induce the electors to vote in favour of such candidates. A nexus between

the gift, offer or promise of gratification and the inducement to vote has to be

established. This can be established even by circumstantial evidence. In some

cases, on material being produced, this charge can be established directly if the

candidate or his agent or any other person with the consent, of the candidate or

his election agent, at such mass feeding of the electors, are seen seeking their

support and votes at the elections in question. But there may be cases, where

the inducement to vote is not direct but only indirect one. The candidate or his

agent or any other person who has arranged such mass feedings with the

consent of the candidate or his election agent, may not make a direct appeal to

the electors either before, during or after the feast. This is so even where,

before poll, cash, clothes, cycles, blankets, etc., are distributed amongst the

electors, by the candidate or his agent. Once the court comes to the conclusion

that such gifts were made to induce the electors to vote in favour of the

68

candidate concerned, a corrupt practice within the meaning of S.123(1)(A)

shall be deemed to have been committed. However, S.123(A) does not require

the electors to express or convey their acceptance of assurance that they shall

vote for such candidate. The election petitioner is not required to prove any

direct negotiation between the candidate or his agent on the one hand and the

electors on the other. If an election petitioner is required to prove that the gift,

offer or promise of gratification was accepted by the electors by assuring to

vote in favour of such a candidate, the provisions of S.123(1)(A)(b) shall

become redundant and shall have to be read as a pious wish of the framers of

the Act to eliminate the role of ‘bribery’ in elections”.34

3.3.2 Undue Influence:

Undue influence as a corrupt practice is defined in Clause (2) of Section

123 of the RP Act, 1951. It refers to any direct or indirect interference, or

attempt to interfere, on the part of the candidate or his agent or any other

person with the consent of the candidate or his agent with the free exercise of

any electoral right (Section 123(2), RPA, 1951. Any person, as referred to

above, who threatens any candidate or electors or any person in whom a

candidate or an elector is interested, with injury of any kind, including social

ostracism, ex-communication or expulsion from any case or community or

induces or attempts to induce a candidate or an elector to believe that he will

become an object of divine displeasure and spiritual censure, shall be deemed

to interfere with the free exercise of the electoral will and will be guilty of

undue influence (Section 123(2) Proviso (a), Act, 1953).

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, does

not amount to exercise of undue influence.

69

In order to constitute undue influence, it is not necessary that there

should be any actual threat or physical compulsion, but the method of

inducement adopted should convey to the mind of the person addressed that

non-compliance with the wishes of the person offering, the inducement may

result in physical or spiritual harm to himself or any other person in whom he is

interested. Some fear of harm resulting from such non-complaince is thus an

essential element in undue influences.

Where the influence is said to be by a religious appeal, it should be

shown that it was made to appear to the person address ed that non-compliance

would be considered to be irreligious or sinful. This kind of undue influence

can generally be exercised by religious teachers or persons having a reputation

for learning and piety, but it may be exercised also by a newspaper editor, if he

has some standing in the society.35

In a case, which went to the Supreme Court, the returned candidate

admitted that certain pamphlets and posters were circulated (during election),

to the effect that one of the candidates had withdrawn and that any vote given

to the returned candidate would be considered as a vote given to the returned

candidate would be considered as a vote given to the withdrawing candidate.

The statement was circulate at the instance of the returned candidate. It was

held that the candidate was guilty of corrupt practice. Further, having regard to

the fact that the margin of votes between the defeated and the returned

candidate was very small (only 123), there was a strong presumption that the

votes polled in favour of the candidate who had been alleged to have

withdrawn would have gone to the defeated candidate. In the circumstances,

the election was set aside, its result having been materially affected by a

corrupt practice.36

In one case the Supreme Court refused to believe the story that a police

officer of senior rank favoured and sided with the opposite party (successful

70

candidate), where the petitioner (defeated candidate) was a sitting member

belonging to the ruling party which was in power in the state at the time of the

election petition.37

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, an allegation that the

other candidate was carrying on false propaganda about divine displeasure, if

anybody voted for opposite candidate, is an allegation of undue influence.38

In case which went to the Supreme Court, disturbance had taken place at the

police Station and the police had to resort to quell the disturbances. The

defeated candidate (the petitioner) took the plea that the police were in leage

with the successful candidate fired. The High Court believed this but the

Supreme Court did not accept the story. The fact that only two persons were

injured and they both belonged to the defeated candidates group, showed that

the police fired on the aggressors.39

The Supreme Court in one case refused to accept the story that a

conspiracy for creating violence at the particular polling station was studdenly

and so openly hatched up in the election office of the successful candidate and

in the presence of so many persons as alleged by the petitioner.40

A poster contained a statement that a vote cast for the Akali Party

Candidate was a vote in favour of the Guru and asked the Sikhs to get the

blessing by the Guru by supporting the Akali Party candidate. It was held that

it did not amount to undue influence, but was a systematic appeal to voters to

vote for a particular candidate on the ground of religion, and, as such, was

corrupt practice under Section 123(3)41

71

In a poster published under the signature of an eminent political leader,

who was not a spiritual or religious leader, it was stated that the Congres

should not be voted since it was “maha pap”. The Election Tribunal held that

the word ‘pap’, though it originally meant ‘sin’ had come to be applied to

anything ethically undesirable, when it is not used by spiritual or religious

leader and the poster did not mean that not voting for the Congress would bring

divine displeasure or spiritual censure, within the meaning of Section 123 and

its publication did not amount to exercising undue influence.42

Mere statements and expressions cannot amount to exercising undue

influence, unless they induce or attempt to induce, fear of spiritual censure of

divine displeasure.43

In Ram Sharan Yadav vs Thakur Muneshwar Nath Singh, AIR 1985 SC

24, the specific allegation taken up against the appellant was that he, through

his supporters and other people duly instructed by him, attempted to set at

naught the electoral process by putting the voters in serious fear. In support of

this, particular instances of threatening, assaulting and firing were adduced.

For appreciating and analyzing the evidence in all cases of corrupt

practices the Supreme Court spelt out the following guiding considerations: (i)

the nature, character, respectability and credibility of the evidence; (ii) the

surrounding circumstances and the improbabilities appearing in the case; iii)

the slowness of the appellate court to disturb a finding of fact arrived at by the

trial judge who had the initial advantage of observing the behaviour, character

and demeanor of the witness appearing before it; and (iv) the totality of the

effect of the entire evidence which leaves a lasting impression in regarding the

corrupt alleged.

In view of these considerations, the High Court was held on be justified

in concluding that all the circumstances taken together led to the irresistible

72

inference that the voters were pressurized, threatened or assaulted at the

instance of either the candidate or the supporters with his consent or that of his

agent. And all such acts amounted to undue influence exercised by the

appellant sufficient to vitiate his election. Besides, in the opinion of the court,

it was not a case where two views were possible so that the appellant could be

the given benefit of doubt.

Disturbing an election meeting, in absence of any threat to the free

exercise of electoral right, would not amount to undue influence, but would be

an electoral offence under Section 12744

Where the agents and supporters of the elected candidate with his

consent and connivance, put double marks, stamps, seals or thumb impressions

on the valid ballot papers cast by the electors in favour of the defeated

candidate and as a result of this double marking, the ballot papers were rejected

and the elected candidate, thus, indirectly interfered with the free exercise of

electoral rights of the electors of the Assembly constituency, it was held that

they were guilty of commission of corrupt practice of undue influence as

defined in Sub-section (2) of S.12345

.

Canvassing: Whether an Undue influence within the Ambit of Section

123(2)(a), Act, 1951

It was alleged in Ramchandran Kadanappalli v. K. P. Noordeen, AIR

1988 Ker.141, that the returned candidate exercised undue influence while

canvassing amongst the electorate by observing “canvassing is the essence of

election. It is as important as the right to vote. The candidate and his supporter

are entitled to canvass and influence the electors in his favour. Something more

than canvassing is required to make it a corrupt practice to come under Section

123(2). It must be a tyranny over the mind of the elector leaving no chance to

exercise his free volition. Threat of injury to a candidate or a voter under

73

Section 171(2-a) of IPC or inducing a belief as stated in the two provisos will

be undue influence”.

In Charan Lal Sahu v. Giani Zail Singh, AIR 1984 SC 309, a case under

Section 14 of the Presidential and Vice-Presidential Election Act, 1952, it was

decided that “the mere act of canvassing for a candidate cannot amount to

undue influence”.

The other main allegation of the petitioner was that the offence of undue

influence was committed by certain supporters and close associates of the

respondents with his connivance. In the light of the legislative history of the

statute, specially the Amending Act, 1974, the court found that ‘connivance’

and ‘consent’ cannot distinct concepts and for the purpose of Section 18(1)(a)

what is needed is ‘consent’ and not ‘connivance’. In an election petition, the

court observed that it is not open to a petitioner to plead in terms of synonyms,

because pleadings have to be precise, specific and unambiguous so as to put the

respondent on notice. “The rule of pleadings that facts constituting the cause of

action must be specifically pleaded is as fundamental as it is elementary”.

Mere canvassing in favour of a candidate does not make it undue

influence even if the canvassing is done by the Prime Minister, the Chief Whip

of the Party or the Chief Minister.46

3.3.3 Relating to symbols:

The proviso to Section 123(3) has a history, A question was raised in

Smt. Gandhi’s case before the Allahabad High Court that the symbol of cow

and calf of the Congress was a religious symbol and its use was a corrupt

practice under Section 123(3). This question was again raised in the Supreme

Court. It was held by the Supreme Court that representation of a cow and a

calf cannot except in some special and purely religious context be held to have

74

an appear to religion as such or not. In each case, therefore, the substance (and

not merely the form) of the matter has to be judged”.

An appeal “to Maharashtrian” is not an appeal on the ground of Race,

caste or community as Maharashtra includes all people residing to

Maharashtra, whatever their race, caste or religion may be. The word

‘community’ in Section 123(3) must be given a narrower meaning that the

dictionary meaning of a “group of persons having a common interest”.

Maharashtrians are not a distinct community with in the meaning of Section

123(3).47

In Komireddy Ramuloo V. Chennemaneni Vidyasaggar Rao, AIR 1990

SC 1352, an allegation of distribution of booklets containing photographs of

leader of a party having alliance with idols of Lord Krishna and Lord Rama by

the Candidate at a meeting was made. The fact of distribution of the same was

proved, but , in the absence of proof showing that the candidate took part in

printing or distribution of the book or some had been done by his agents or

anybody else with his consent, the court held the corrupt practice was not

proved.

3.3.4 Appeal on the Ground of Language:

In the Pratap Singh vs Jagdev Singh. 24 ELR 378(S.C.) case on the

ground of appeal to voters to vote or refrain from voting on the ground of the

candidate’s language, the Supreme Court held that the corrupt practice defined

by Section 123(3) Act of 1951 was committed when the appeal is made to the

voters to vote or refrain from voting on the ground of the candidate’s language.

It is an appeal to the voters on a ground personal to the candidate relating to his

language, which attracts the provisions of Section 100 read with Section

123(3). Therefore, when the electors are asked to vote or not to vote because

of the particular language of the candidate, the corrupt practice may be deemed

75

to be committed. Where, however, for conservation of language of the

electorate, appeals are made to the electorate and promises are given that steps

would be taken to conserve that language, it would not amount to a corrupt

practice.

Denial of an election symbol on the ground that the use of the word

“Telugu Desam” arouses chauvinism or sectarian tendencies if not proper or

justified. Section 123(3) of the Act of 1951 or Section 153A IPC does not lead

to that position (Article 29 of the Constitution and Constitution 16 Amendment

discussed).48

3.3.5 Promotion of Feeling of Enmity of Hatred Between Classes:

The Act makes promotion of, or attempt to promote, feelings of enmity

or hatred between different classes of the citizens of India on the grounds of

religion, race, caste, community or language as a corrupt practice. (Section

123(3-A), Act, 1951.

Section 123(3-A) is not violative of Article 19(1)(a) of the Constitution,

being a law imposing reasonable restriction in the interest of ‘public order’ and

hence served by Article 19(2) of the Constitution of India. This Section is

similar to S. 153-A of the Penal Code and the element of prejudicial effect on

public order is implicit thereunder.49

When the Framers of the Constitution guaranteed every citizen, right to

freely profess, practice and propagate his religion, that right does not extend to

creating hatred amongst two groups of persons, practicing different religions,

Sub-sections (3) and (3-A) of S.123, never purport to curb nor are they in

conflict with the right guaranteed by Article 25 of the Constitution and both

can co-exist, Sub-Sections(3) and (3-A) of S.123 purport to ensure that an

election is not influenced by considerations of religion, race, caste, community

or language. They merely prescribe the conditions, which must be observed, if

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a candidate wants to enter Parliament or Legislative Assembly. The right to

stand for an election is a special right created by statute and can be exercised

on the conditions laid down by the said statute.50

In an important judgment pronounced in 1980, the Supreme Court has

spelt out the scope of Section 123(3-A). The main propositions laid down can

be briefly stated as under:

1. The essence of Section 123(3-A) is the likely effect of the speech on the

voters. A speech may promote feelings of enmity between different

classes of citizens of India, even though the immediate target is a

political party.

2. Truth is not a defense to a charge under Section 123(3-A), what is

relevant is, whether the speech in question promoted or sought to

promote, feelings of enmity or hatred between different classes of

citizens. It is immaterial whether, what was said was based on facts or

not especially when (as in this case) the events mentioned had occurred

years ago.

3. A candidate may commit a corrupt practice under Section 123 by

appealing to the voters to vote for him on the ground of religion, even

though his rival candidate may belong to the same religion.

It has been held in the above case that the laws do not place any bar on

describing a party as irreligious. It is also pointed out that so long as the laws

allows the formation of communal parties, an appeal for votes made by the

candidates of such parties may (if successful) lead to their election and, in an

indirect way, may conceivably be influenced by considerations of religion,

race, caste, community or language.51

In the above case, the Supreme Court has upheld the validity of Section

123(3-A), had pointed out that in order to attract this sub-section, the impugned

77

act must have been done with the specified motive, namely, for furthering the

election of any candidate or for prejudicially affecting the result of any

candidate. This motive may not be an ingredient of Section 125, but that in

itself, is no reason why the ingredient should not be taken into account in

construing the scope of Section 123(3-A)52

It was alleged in an election petition against ‘R’ that ‘R’ through ‘S’

who was a candidate for election but who had withdrawn his candidature

within time allowed, had distributed and caused to be distributed certain

pamphlets couched in language which tended to spread hatred between Sikhs

and non-Sikhs in the State of Punjab. ‘S” had distributed certain pamphlets one

of which was titled “Phoolan ki sej se kanton ki rab par, magar kion?” and the

other was “the case of Haryana and Hindi Region”. The allegations tended to

promote feelings of enmity or hatred between different classes of citizens of

India on grounds of religion, race, caste, community or language. The

Supreme Court held that the allegations amounted to corrupt practice and were

covered by Section 123(3) (a) of Act 195153

The corrupt practice specified in Section 123(3-A) differs form the

occupt practice specified in the other sub-sections of Section 123. The evil

effects of activities creating feelings of enmity or hatred between different

classes of citizens do not disappear after the election. Hatred may be dormant

and may unexpectedly erupt like a volcano.54

A speech criticizing the Muslim League for aligning with parties said to

be responsible for atrocities against Muslims (and not intended merely to

emphasise the atrocities) is not hit by Section 123(3-A) having regard to its

total effect when read as a whole.55

Promotion of enmity or hatred against the ruling Government is not a

corrupt practice. Government cannot be comprehended within the expression

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“….different classes of citizens of India” Pritpal Singh v. Ranjit Rai, AIR 1984

Delhi 198, 204, para. 20. With reference to Section 123(3-A) and proviso (a)(i)

the Supreme Court has held that the term “Consent” as a much stronger word

than the term “knowledge” and implies conscious consent, which must be

proved beyond reasonable doubt. From the mere fact that the Chief Editor

received daily a copy of the paper, the consent cannot be presumed, particularly

when he explained that he was very busy.56

Pleadings:

An allegation of undue influence or of any other corrupt practice must

be clear and specific. It must admit of no doubt or conjecture. The necessary

particulars, statements of facts and essential ingredients that must be contained

in the pleadings are as under:

1. Direct and detailed nature of the corrupt practice as defined in the Act.

2. Details of every important particular must be stated, giving the time,

place, names of persons, use of words and expressions, etc.,

3. It must clearly appear from the allegations that the corrupt practices

alleged were indulged in by (a) the candidate himself, or (b) his

authorized election agent or any other person with his express or implied

consent. Daulat Ram v. Anand Sharma, AIR 1984 SC 621, 625 para. 18

(See also Chapter on “Corrupt practices-general” and “Election

Peititons: Essentials”).

Proof:

In the petition the allegation of exercising undue influence against the

elected candidate based on gratifying of voters of certain communities by

appointment of certain committee of Krishi Upaj Samiti were made. No

evidence of direct or indirect involvement of the elected candidate in

nomination of the person in question and also no evidence of the candidate

79

making any bargain with the voters through appointments in question was

produced. Hence the commission of alleged practice, not proved.57

Booth Capturing:

Under Clause (8) of Section 123 of the Act 1951 (added in 1989 by Act

1 of 1989), “booth capturing by a candidate or his agent or other person” is one

of the corrupt practices. Explanation (4) to Section 123 provides that for the

purpose of Clause (8), ‘booth capturing’ shall have the same meaning as in

Section 135-A.

The relevant portion of the Explanation to Section 135-A runs in the

following terms.

“Booth capturing” includes among other things, all or any of the

following activities, namely:

1. Seizure of a polling station or a place fixed for the poll by any person or

persons making polling authorities surrender the ballot papers or voting

machines and doing of any other act which affects the orderly conduct

of election;

2. Taking possession of a polling station or a place fixed for the poll by

any person or persons and allowing only his or their own supporters to

exercise their right to vote and prevent others from voting;

3. Threatening any elector and preventing him from going to the polling

station or a place for the poll to cast his vote.

4. Seizure of a place for counting of votes by any person or persons

making the counting authorities surrender the ballot papers or voting

machines and the doing of anything which affects the orderly counting

of votes;

5. Doing by any person in the service of Government, of all or any of the

aforesaid activities or aiding or conniving at, any such activity in the

furtherance of the prospects of the election of a candidate.

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The allegation of booth capturing must be specifically made in the

election petition. Name and number of polling station, persons helping in booth

capturing, time and place of booth capturing etc., must be specified in the

petition.

Booth capturing, forcible removal of ballot papers from the possession

of polling officers and putting the same in the ballot box after marking them in

favour of a candidate are corrupt practices.58

For the purpose of Sub-Section (8) of S.123, “booth capturing” has the

same meaning as in Section 135A of the Act. The activities which denote

“booth capturing” are not exhaustive. Nevertheless these activities have to be

of the kind which are mentioned in Clauses (a) to (e) under the Explanation to

Section 135A of the Act. Activities such as casting of votes by persons who

are not genuine electors or casting of vote by an elector at two polling booths,

do not amount booth capturing.

In this case the allegation was made that the returned candidate along

with his supporters, variously armed, threatened the polling agent of the rival

candidate (election petitioner) not to go inside the polling station and not to

raise objections regarding identity of persons. The polling agent of the election

petition was not examined as witness in support of the allegation. No

complaints, oral or written, were made about the incident to the Returning

Officer, President Officer or the police personnel on election duty. On the

contrary consistent, convincing and satisfactory evidence adduced by the

returned candidate showed that polling was peaceful. In the circumstances the

court has held that the allegation or corrupt practice was not made out. It

further held that the alleged threat may be offence but it would not constitute a

corrupt practice under S.123(8)59

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Witnesses making allegation of booth capturing by elected candidate did

not state that they saw the elected candidate present on the booth in question on

the polling day. Thus the allegation of booth capturing was not tenable.60

3.3.8 Tampering with Ballot Boxes

Returning Officers being satisfied that the ballot boxes had not been

tempered with, found that outer seal was not intact but inner paper seals were

intact. Under R.55 of Conduct of Election Rules where a paper seal is used for

closing a ballot box, the outer seals of the ballot box are not vital and even of

these outer seals are damaged, but the inner paper seal is intact, contents of

ballot boxes cannot be considered to have been tampered with61

3.3.9 Code of Conduct for Ministers and Chief Ministers:

The union and state governments have evoked a Code of Conduct for

Ministers and Chief Ministers.

In an Andhra case, the question arose whether a Chief Minister can be

restrained from acting in films. A writ of mandamus was sought to restrain the

Chief Minister of A. P., State from participating in a film on the ground that he

was prohibited to do so in view on the Codes of Conduct for Ministers evolved

by the union and the state in question and also on the ground that there are

certain implied limitations in the Constitution upon the conduct of a high

dignitary like a Chief Minister and they must be develop and enforced” to save

the democratic values” and also on the ground that he was obliged to devote all

his time to his official work as he was a public servant, and the further ground

that he had incurred electoral disqualification. It was held that the writ could

not be issued as the codes of conduct were not enforceable and no

disqualification was incurred by the act. The Court said:

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“The Codes of Conduct issued by the union government and the state

government are not statutory in nature. They lay down rules of conduct which

the Ministers must observe. They are in the nature of guidelines. They also

prescribe the authority that should ensure compliance with the said code: it is to

him that the statements contemplated by paragraphs 1(a), 2(a) and 2(e) of the

Union Code of Conduct have to be furnished. Even the procedure to be

followed in the case of an alleged or suspected breach of the Code is also left to

the circumstances of the Code, the ‘authority’ shall evolve the appropriate

procedure. Evidently, the nature of action to be taken on such enquiry is also

left to him. The rules of conduct evolved by the union and the state

government for the Ministers do not have a constitutional or statutory sanction

and cannot be enforced by the court. The Code of Conduct evolved by the

union or the state government does not confer any rights upon citizens and,

therefore, cannot be enforced through Court. The respective Codes specify the

authority empowered to enforce the same. The Court does not enter the

picture. It would neither be permissible nor advisable for the High Court to

evolve a Code of Conduct by itself, though the necessity of such a Code in the

interest of good Government and fair administration is not be denied. The

Court cannot perform a pure and simple legislative function.

It was pleaded that the act of participating by Chief Minister in a film

(of religious nature) while the notification of election had been issued, amounts

to corrupt practice for preaching religious or communal intolerance or amounts

to electoral offence. Petition was filed even before commencement of shooting

of film. Basic script or story of film was not set out. It was held that the

petition was premature.

The Election Commission is of the opinion that certain judges should be

earmarked exclusively for the purpose or some adhoc judges appointed for the

purpose of disposal of the petitions. Ultimately what is needed is a climate of

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opinion which would make violations of the electoral law a matter of public

shame and universal censure.

3.4 ELECTIONS: Recent Trends

1. Practice of erecting camps: The practice of erecting polling camps by

putting up tents or improvised structures near the polling booths, just for

the sake of providing voters with identity slips has to be stopped, so that

peace and tranquility on the poll day was not disturbed and also no

political influence of an undesirable kind was alleged by anyone.

2. Plying of vehicles regulation: The plying of vehicle on the road on

polling days was to be regulated so as to prevent the illegal carriage of

voters to and from the polling booths.

3. Increase of number of booths: The polling booths in a constituency to

be increased by nearly 50 per cent and located as near the electors

residences as possible to that they were enabled to vote without having

to travel long distances thereby eliminating also the need to use vehicles.

4. Appointment of observers: High level observers to be appointed in every

constituency to not as eyes and ears of the commission. Their mere

presence may be secured as a deterrent against any irregular act, there by

keeping the polling staff, the police and the political parties alert.

5. Formation of constituency committees: These committees presided over

by the returning officer and attended by the candidate, representation of

political parties and senior officers of police, if found constituted can be

looked in to complaints made on the previous day and take follow-up

action, thereby overcoming the communication gap that previously

existed between the administration on the one hand and political parties

and candidates on the other.

6. Operation of electoral rolls: The electoral roll which is a sine-qua-non

for pure, free and fair election was updated with reference to the date of

an election or bye-election.

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7. Election expenses: The expenses incurred by the government on

elections are meticulously compiled, audited and can be relied up on

thoroughly, the same cannot be said of the expenditure on campaigns by

candidates and political parties and on political education and like

activities.

The ceiling and other legal constrains placed on election

expenses as laid down by law have not discouraged some contestants

and the political parties from lavish over spending on their election

campaigns with impunity and circumventing the accounting

expenditure.

A tendency amongst candidates and political parties to

pander to those who weild money power and are prepared to pay any

price for shapins the policies of the government to serve their vested

interests. This vicious circle of capitive politics, which can so rapidly

pollute the atmosphere, endangering the very fabric of our democratic

values and institutions, has to be broken and tackled from every

direction. This reform will not only purify the electoral process,

eliminate the scope for candidates to procure money from unscrupulous

financiers, but bring about a great change in the conduct of public affairs

at such a small cost a small cost to the public exchequer.

8. Electors participation: Another matter which has been a cause for

concern is the smaller number of elections who participate in voting.

There is a need for electors to take active part in voting so that the ruling

party reflects a higher percentage of the population vote. It may be that

most voters are apathetic or do not know that they have an active part or

positive role in choosing the government; or it may be that some voters

are frightened away from casting their votes. There are various

complaints in this regard. There is also need for dedicated polling

agents, for it is with their help mostly that a vigilant eye can be kept on

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the administrative machinery and unsocial elements so that elections are

in fact conducted in a free, fair and pure atmosphere.62

In this task of evaluating voters on proper lines and keeping

political parties in a state of efficiency and alertness, voluntary

organizations like voter’s council can play an important and useful role.

9. Desirability of President’s rule during elections:

Experience has shown that if elections are held when there is

President’s rule in the States at that time, election machinery runs

smoothly and without any interference from any political quarters. It

seems desirable that from the day the elections are announced, there

should be President Rule in the States, so that the Ministers, existing

members and the new candidates have an equal chance in the polls.

There should not be any unfair advantage to anyone.

10. Abuse of governmental power: Abuse of governmental power is a

subversive of poll justice as money power. It makes elections absolutely

unequal and unfair. The code of conduct for candidates drawn up by

Election Commission may be a cure for this malady. But as it is the

code is observed only in its breach. There is need, therefore to give the

code legislative teeth.

11. Updation of electoral rolls: Correct and up to date electoral rolls are a

must for any fair and free elections. The Election Commission’s

acquiescence in the wishes of the executive to hold an election in Assam

on the basis of electoral rolls four years old has set a very bad precedent

for the future. So, a proper revision of electoral rolls becomes necessary

for a general election.

86

12. Independent Election Machinery: Pleading for an independent election

department by the Election Commission is to be fulfilled. There may be

practical difficulties in this regard, but the minimum that must be done

into make the Election Commission’s office itself completely

autonomous, and the Chief Electoral Officers and their Deputies in the

States directly responsible to the Election Commission.

13. Need for Universal Education: Universal adult franchise without

universal education is dangerous. It is sheer hypocracy to propogate the

myth that education is irrelevant to democracy, that over masses,

howsoever illiterate, are wise and know how to choose their rulers. The

politicians seem to have a vested interest in masses remaining illiterate.

We have done little to educate the people.63

14.

Party System: The fundamental purpose of holding elections is to find a

set of persons who can represent the people, make laws and govern the

country. After the insertion of Tenth Schedule, political parties have

received constitutional recognition. So independents hardly have a role.

On the other hand it is well established that the provision of independent

candidates in elections is mostly misused in a variety of foul ways. No

one should, therefore, be allowed to contest elections to the House of

Parliament and State Legislatures except as a candidate of recognized

political party. For recognition as a national or state party it should have

received nationwide or statewide a certain minimum number of votes

and seats. This should help to reduce the number of parties and the

number of candidates in elections drastically. Individual campaigning

by candidates may be completely banned.

15. Multi-member constituencies: To assimilate and transcend the malady

of caste and communal division and the increasing lure of sub-national

and narrower ethnic identities, multi-member constituencies could be

87

thought of. This would provide representation to different segments of

society in the constituency.

16. Removal of Parasites: Upper houses at the national and state levels

should be removed. A single house at each of these levels comprising

mature and well-informed legislators of quality should be adequate to

carry out the legislative function competently. It is generally not

realised that it costs a fortune to the tax-payer to maintain just one of

their numerous representatives; the fellow each continues to be a

lifetime load as a pensioner too64

.

17. Criminal record: The voter and the candidate must not have any

criminal record which is not so now. The Candidate or voter who has no

respect for law would have no compunction in voting in a criminal.

18. Qualifications: In addition to the matriculation qualification, the

candidate should also qualify at a centrally, conducted written test in

subjects like basic civil laws, functioning of the civic bodies, nation’s

history and cultural heritage, elementary economics and science, general

knowledge covering the affairs and events within the country and a

broad acquaintance with two happenings in the neighbouring countries.

This is applicable even more at the level of parliament where lack of

knowledge invariably results in passing laws without adequate

discussion.

19. Inner party democracy: There is no doubt that most political parties

including the one in central power have no real internal elections,

practice personality cult and make a joke of party democracy with

functions and underhand deals and naked purchases. It is a moral

collapse of democracy. This will tend to defeat inner party democracy.

So, the focus on inner party democracy is a healthy development and

88

public attention has been turned on pathology till now, incurably

resistant.65

20. Natural Justice: Hearing of all affected parties before taking a decision,

elimination of personal prejudice, and personality cult by the

functionary and giving of reasons, at least minimal, for the orders one

may pass in a quasi-judicial capacity. The infirmity in these aspects can

be controlled by a panel of commissioners as distinguished from

individualist authoritarianism. The Election Commission must always

remember that natural justice is integral to fair poll, even though

pragmatically flexible under given circumstances.

21. Registration of births and deaths: The whole structure of our election

machinery stands on a base, which at present is very weak simply

because of non-implementation of our existing laws pertaining to the

process of registration of births and deaths within three days of the

occurrence of the event. Because electoral rolls will continue to the

shame and our elections are the biggest fraud on earth. In this matter

even educated, intelligentsia in the country is still far for casual about

many vital matters which are observed routinely in the developed

countries. With the preservation of their certificates i.e., births &

deaths, impersonation can be reduced. It is the most vital llink in the

whole chain of our electoral system.66

22. Participation in the proceedings of the house: Since no party member

who is lucky enough to become a legislator can go against the party

position, he has little to contribute to the discussions on the floor of the

House, and hence little interest in its proceedings. He is not allowed to

use his intelligence or discretion and must vote in the House the way he

is told to vote. So he may be interested in private business and rush to

89

the House to vote only as per his party’s dictate often without even

being aware of the issues at stake.

23. Loyalty: The legislators interest to party also means his loyalty to the

party’s leader not to the cause. He, therefore loses interest in the

business of legislation, for he known that the laws in our present system

do not matter. What matter in actual practice are in laws and outlaws

around the leaders. Consequently the laws are implemented

selectively.67

24. Decision Making: The party system makes it impossible for even a

capable government to take any unpopular decision even if such

decisions may be in the overall interest of the country. This is to attract

some sections of the people so as to return to power in the subsequent

elections. This should be reformed properly.

25. Propaganda: It should be made obligatory for the newspapers to

publish the contents of the brochures i.e., contesting candidate

information in their local editions while the TV stations and radio

broadcast them. With the knowledge of the qualification and the signed

manifestos of all the contestants, the people would be able to make their

choice. Entire expenditure on this account will be borne by the

government.68

26. Election from two constituencies: The provision permitting a person to

seek election from two constituencies should be amended. It must be

laid down that no person shall seek election from more than one

parliamentary or assembly constituencies at any general election. It is a

fraud on the voters. It also creates the possibility of unnecessary

expenditure on bye-elections. The law should neither encourage the

megalomania of politician nor their pusillanimity.69

90

27. Issue of Identity Cards: The attempt to use electronic voting machines

has failed due to opposition made by the political parties. Once again

high technology is being used to check yet another electoral malpractice,

impersonation. This time around, the idea is to issue photo identity

cards to voters using latest computer technology.27

The total electorate

registered in the entire country comes to about 600 million. If the

scheme of identity cards is to cover this figure, the government faces a

gigantic task. So it is imperative to examine the pros and cons. Then

only it would be possible to chalk out a satisfactory programme for the

implementation of the scheme. Otherwise the scheme would end in

fiasco if this scheme is attached or confined only to electoral purposes it

is bound to fail. On the other hand, the scheme should carry an element

of compulsion for the use of the identity cards for all conceivable

purposes – drawing rations, admission in educational institutions, grant

of caste certificates, migration, passports, opening of bank accounts,

driving licenses, grant of pattas, employment purpose etc.,71

In short it

should serve as a social security card and should be used in political,

social and economic fields of the country for all public purposes. Then

only identity cards would be considered really valuable and kept in safe

custody.

The issue of identity cards is very much useful. Because: 72

i) It eliminates the irksome ration card which was mandatory

document for a host of matters.

ii) It could check illegal migration into the country.

iii) It may speed up elimination of bogus voting and poll rigging in

elections.

A lot of discussions were held to introduce the Electoral Reform Bill. It

contains provisions about both identity cards as well as the code. It was based

on the Reports of Dinesh Goswami Committee. There is a specific

recommendation on the identity cards. It is:

91

“There is unanimity of view among all the members in regard to

the implementation of the scheme of issue of multi-purpose photo

identity cards. The Committee agrees that the steps for

successful implementation of the scheme as proposed in Para 3-II

of the notes should be undertaken. A time bound programme for

covering the entire country with the proposed scheme is

desirable”.

After the passing of the Bill, the scheme was launched in New

Delhi and Bombay. So many reactions were observed on this. But

some State Governments also reacted otherwise. In this matter Election

Commission sought the Court for its decision. With regard to

Maharashtra State, it caused delay on the issue of identity cards to the

people. Because it incurs lot of money. And the court also held that

(Bombay High Court), the Election Commission cannot postpone polls

simply because the State did not issue identity cards.

28. Judicial Tribunals: It is imperative to enact a specific law and create

judicial tribunals to ensure that political parties function according to

their respective constitution. This task cannot be left to the vagaries of

the subjective satisfaction and discretion of an individual. It will ensure

as a better guarantors of internal democratic functionary of parties.73

29. To curb communalism in Politics: As soon as freedom emerged,

millions of hearts danced with hope that time has come to restructure the

nation from economical and social injustice within a reasonable span of

time. But as decades passed, people’s expectations darkened into

anxiety, anxiety into dread, and dread into despair, because of

devaluation and degeneracy of the values cherished in the shape of free

and fair elections and extermination of corruption from the poll praxis.

After the demolition of Babri Masjid late in 1992, some legal

92

personalities organized national convention and expressed deep sorrows

about the disruption of communal harmony. It was attracted by the elite,

educated and different professionals including social workers and

parliamentarians. The convention proposed to form an electoral reform

committee so as to bring changes in the law governing elections and

political parties with a view to eliminate communalism from politics and

bring amity among citizens.74

The following are the proposals to reform communalism in politics:

i). Registration: A party bearing the name of a religion, race or caste either

wholly or partly shall not be registered as a political party to contest

elections. Reasonable time may be given to the existing political parties

bearing such names to change their names.

ii). Disqualification & De-registration: A party which promotes

communalism whether before, during or after elections or which seeks

to fight elections on communal issues, shall be de-registered and

disqualified to participate in election.

iii). Membership: The constitution of a registered politics party shall contain

a provision stating that its membership is open to all, irrespective of

religion, race, caste, or language.

iv). Religion office : Any person holding a religious office shall , so long as

he holds that office, he disqualified from contesting in an election.

However, it shall be open to him to relinquish the religious office and

contest.

v). Re-poll: If the total votes polled in a constituency is less than 35 per cent

of the total number of votes in the constituency, there should be a repoll.

vi). Percentage of votes:

a) No candidate shall be declared elected from a constituency unless

he has secured at least 50% of the total votes polled in the constituency.

This will induce political parties to secure votes from people of different

93

castes and communities, hence communalism and casteism will go out

of politics quietly. It also induces political parties and groups to come

together and prepare for a straight fight. It may pave way for two party

system or else at least two major combinations of political parties. This

will bring stability.

b) If no candidate secured at least 50% of the votes polled, there

should be a repoll to elect one of the two candidates, who have secured

the largest and the second largest number of votes in the first polls75

.

vii). Ex-Communication: It should not be practiced in order to ensure that

religious and caste sanctions are not applied to control the conduct of

political parties and or elected representatives in the discharge of their

duties.

viii). Ceiling on party expenses: It may be revised so as to allow a maximum

expenditure of Rs.5 lakhs in the case of Lok Sabha constituency and

Rs.2 lakhs in the case of Assembly Constituency including expenditure

incurred by a party on a candidate.

ix). Electronic Voting: Electronic voting system can be introduced as early

as possible after making necessary amendments to the conduct of

Election Rules, 1961.

x). Valuation of negative votes: The process of negative vote will play a

positive role in eliminating the tendency of parties to set up viciously

popular or criminally or communally notorious candidates. It can be

done by way of deduction against a particular candidate, so that political

parties will be careful to appoint good candidates who will not invite the

censure of the electorate.

3.4.1 Independence of Ombudsman:

A general election in India requires enormous infrastructure,

independent policing powers, punitive jurisdiction and facility for easy travels.

The Chief Election Commissioner and other Commissioners, the ombudsman

94

invigilating the work of political parties and other staff at higher levels must be

selected by a high level panel, consisting of the Prime Minister, the leader of

the opposition, speaker and Deputy Chairman of the Houses, a judge sitting or

retired nominated by Chief Justice of India, which may to begin with be

entrusted with the high task of selection.

In the past recent years, the Election Commission is on the top of

discussions, it is mainly its immense interest to prevent the usual malpractices

which are in practice for many years. With the issue of various guidelines and

instructions on the eve of elections, it has aimed to curb malpractices and

disruption of civic life during elections.

The following are some of the activities banned by the Election Commission:76

1. Use of any kind of official vehicle, personnel or machinery for

electioneering. The kind of vehicle used includes air, sea or ground

belonging to central or state government.

2. Issue of advertisement at the cost of public exchequer, regarding the

achievements of the party or government in power.

3. Announcement of any financial grants, laying of foundation stones,

promise of construction of new roads etc.,

4. Adhoc appointments in government or public undertakings.

5. Any minister entering any polling station or place of counting less he or

she is a candidate or authorized agent or a voter only for voting.

6. Mixing official work with campaigning.

7. Inducement, financial or otherwise offered to a voter,

8. Attempting any activity which may aggravate existing differences or

create mutual hatred or cause tension between different castes,

communities or religious or linguistic groups.

95

9. Criticism of other parties, based on unverified allegations, or about

private life not connected with public activities of leaders, or workers or

other parties.

10. Hindrance to traffic by processions.

11. Use of temples, mosques or any place of worship for election

propaganda including speeches, postures, music etc., on electioneering.

12. Use of any public, private or individuals land, building compound wall

etc., without proprietor’s permission for erecting flag stuffs, putting up

banners, pasting notices or writing slogans etc.,77

13. Disturbance of public meetings organized by political parties or

candidates.

14. The Election Commission has directed the information and broadcasting

ministry to put an immediate step to any kind of programmes

publicizing government achievements on DD, AIR and Directorate of

Advertising and visual publicity till the Assembly elections are over.78

CHAPTER -III

FOOT NOTE

1. Russel J. Dalton, Citizen Politics in Western Democracies (New Jersey,

Catham Publishers INC. 1998). P-127.

2. David Easton, The Political System (New York, Alfired A.Knopt,

1953), pp.125-48.

3. Gabriel Almond & Powell : Comparative Politics (New Delhi Amerind

Pub. Co., 1975), pp.16-42.

4. Ibid.

5. Cited by Bernard Berelson, et.al, Voting (Chicago University of

Chicago Press), p.295.

6. K.R.Acharya, Political Behaviour in Telangana : An Emperial Study of

References and Motivaions during Parliamentary Elections, 1971

(Unpublished Ph.D. thesis, Jawaharlal Nehru University, 1978), p.III.

7. Sir Anthony Downs “An Economic theory of democracy” cited by

David E.Aplter – Introduction to Political Parties in Harry Eckstein

(New York : The Free Press, 1963), p.231.

8. K.R. Acharya, Op.Cit..

9. Gabriel Almond and Sydney Verba, Civic Culture, (New Jersey,

Princeton University Press, 1963), p.214.

10. Ibid,

11. S.M.Lipset, Political Man. (Bombay : Vakils, Feefer Simons Pvt.Ltd.,

1973),p.29.

12. Ibid.

13. H.L.Nieburg, “Voilence, Law and the Informal Polity”, in the Journal of

Conflict Resolution, Vol.XIII, No.2, June, 1969, p.1\96.

14. K.R.Acharya, Op.Cit..

15. Ramshray Roy, The Uncertain Verdict, (New Delhi, Orient Longman’s

Ltd., 1972), p.1.

16. Ibid.,

17. For a theoretical discussion, See : Rajni Kothari, Politics in India,

(Boston, Little Brown & Co., 1970).,pp.1-20.

18. For an in-depth study of Modernisation of India, See : Rudolph and

Rudolph, Modernity of Tradition, (Delhi : Orient Longman’s Ltd.,

1969).

19. Dagmar, Bernstorff, “Eclipse of Reddy Raj, the attempted Restructuring

of the Congress Party Leadership in A.P.” in Asian Survey, Vol.XIII,

No.13:10, October, 1973, pp.959-79).

20. Iqbal Narain, “The Concept of Panchayati Raj and its institutional

implications in India”, In Asian Survey, Vol.V,No.9(Sept, 1965),p.463.

21. The Congress Party made alliance with Kerala Muslim League, ADMK

or DMK & National Conference etc. Similarly the Opposition parties

forming a coalition among themselves, for example, Grand Alliance of

1971 and the formation of Janata Party in 1977, creation of National

Front in 1989, the SVD coalition of 1967 are best illustrations of such

alliances. Even the UDF in KERALA are valid instances in Indian

Politics.

22. See. K.R. Acharya, The Critical Elections (Hyderabad : Ramesh

Printers, 1970), “Introduction”.

23. See. Samuel J.Erdman, Swantantra Party and Indian Conservatism

(Cambridge University Press, 1967).

24. See. Angus Campbell (et.al) ‘Sense of Political Efficacy and

Participaation” in Heinz Eulau, et.al.(eds.), Political Behaviour, (New

Delhi : Amerind Publishing Company, 1972).

25 Ibid.

26. Ibid.

27. Iqbal Narain & Mohanlal, “Elections in India : Notes on emperial

Theory” In Asian Survey, Vol.IX, No.3, March (1969), pp.202-220.

28. Ibid.

29. Ibid.

30 Ibid.

31. Secretary, A.P. Social Welfare Residential Educational Instns., Socy.

Vs. P. Venkata Kumari 2001 (3) ALT 366.

32. Bhagat, Anjana Kaw, Elections and Electoral Reforms in India, New

Delhi, Vikas Publishing House Private Limited, pp.163-165.

33. Jain, Kiran and Jan P.C. 1998, op. cit.

34. Ibid

35. Sardual Singh Canveeshar v. Hukam Singh, 6 Election Law Reporter

316, in Jain, Kiran and Jain P.C., Chawla’s Elections, Law and practice,

New Delhi, bahri Brothers, 1998, p.1.460.

36. Avtar Singh v. Tej Singh, All India Reporter 1984 SC 619.

37. M. Narayana Rao, V. Venkata Reddy, AIR 1977 SC 208, (1977), 1 SSC

771 (1977) 1 SCR 490, in Jain, Kiran and Jain P.C. Chawla’s Elections:

Law and Practice, New Delhi, Bahri Brothers, 1998, p.1.322, 1`.460,

1.461.

38. Jagannath Prasad Singh v. Kamlapati Tripathi 1981 All India Law

Journal 912.

39. M. Narayana Rao v. Venkata Reddy op. cit.

40. Ibid.

41. Fakir Chand v. Pritam Singh, 7 Election Law Reporter 119 in Jain Kiran

and Jain P.C., Chawla’s elections: Law and Practice, New Delhi, Bahri

Brothers, 1998, p.1.461.

42. Mast Ram v. Harnam Singh Sethi, 7 Election Law Reporter 301 in Jain

Kiran and Jain P.C., Chawla’s Elections; Law and Practice, New Delhi,

Bahri Brothers, 1998, p.1.461, 1.517.

43. Gurnam Singh v. Pratap Singh 7 Election Law Reporter 338 in Jain

Kiran and Jain P.C., “Chawla’s Elections: Law and Practice”, New

Delhi, Bahri Brothers 1998, p.1.461.

44. Surinder Singh v. Hardilal Singh, All India Radio Reporter 1985 SC 89.

45. Amar Singh v. Dharamvir, All India Reporter 1990 NOC 172 (P

& H).

46. Baburao Patel v. Dr. Zakir Hussain, All India Reporter 1968 SC 904.

47. Kataria Takan Dass Hemraj v. Pinto Frederick Michael, 18 Election law

reporter 403 in Jain Kiran and Jain P.C., Chawla’s Elections, Law and

practice, New Delhi, Bahri Brothers, 1998, p.1.448.1.464, 1.466, 1.480.

48. V.R. Sree Rama Rao v. Telugu Desam All India Reporter 1984 AP 353.,

49. Ramesh Yeshwant Prabhoo (Dr) v. Prabhakar Kashinath Kunte, (1996)

1 SSC 130; All India Reporter 1996 SC 1113.

50. Subhash Desai v. Sharad J. Rao, 1994 Supp. (2) SCC 446, All India

Reporter 1994 SC 2277.

51. Ebrahim Sulaiman v. M.C. Mohammad Koya All India Reporter 1980

SC 354, 358, para 11.358, para 11.

52. Ibid.

53. Aminlal v. Hunna Mai, All India Reporter 1965 SC 1243.

54. T.K.S. M.A. Muthakoya Thangal v. C.H. Muhammad Koya, (1978)

KLH 38 in Jain Kiran and Jain P.C., Chawla’s Elections: Law and

Practice, New Delhi, Bahri Brothers, 1998 Delhi, Bahri Brothers, 1998.

55. Op. cit. Ebrahim Sulaiman v. M.C., Mohammed Koya

56. C.H. Mohammad Koya v. T.K.S.M.A. Muthukoya, All India Reporter

1979 SC 154.

57. Ramadayal Prabhakar v. Mahendra Bandh and Others, All India

Reporter 1993 M.P. 340.

58. Ram Singh v. Ram Singh, 1985 Supplement SCC 611 (1990) 3 SCC 612

in Jain Kiran and Jain P.C., Chawla’s Elections: Law and Practice, New

Delhi, Bahri Brothers, 1998 Delhi, Bahri Brothers, 1998.

59. S. Baldev Singh Mann v. Gurcharan Singh and Others (1996) 2 SSC

743; All India Reporter 1996 SC 1109.

60. Mukhtar Singh v. Shri Bal Mukand and Others: All India Reporter 1994

P & H 192.

61. Ibid.

62. Supra

63. Subhash C. Kashyap Electoral Reforms: Challenge and Response,

Hindustan Times (Aug 5, 1994).

64. A. S. Apte, “Need for cleansing rot from within Newstime

(18 Aug. 1994).

65. V. R. Krishna Iyer, “Political Parties and the Election Commission” The

Hindu (15 Nov. 1994).

66. A.S. Apte, “For making polling less expensive”, News Time ,

(19 Aug. 1994).

67. Ibid

68. A.S. Apte “Constitution Amendment needed, News Time

(20 Aug. 1994).

69. Madhu Limaye, “Electoral Reform Bill” the Hindu (15 Sep. 1994).

70. For details see, “Pioneer” 25 Nov. 1994.

71. K. Ganesan “Posers to Seshan” Indian Express (26 Aug. 1994)

72. Vijay Sinha, “Queuing for an Identity” Pioneer (14 Nov. 1994).

73. V. R. Krishna Iyer “Reforms of the Electoral Process”.

The Hindu (May 27 1994).

74. Ibid

75. Supra

76. For details see “Pioneer” Oct 6, 1994.

77. Ibid

78. Madhumita Chakraborthy, “Election Commission asks Government to

halt propaganda on TV, Radio” Pioneer 16 Nov. (1994).