Joginder Singh Toor

AN election has wheels within wheels. The fight continues in courts after the same finishes in the field. Now that the election in the States of Punjab and Uttrakhand are over, the second round is likely to start, to claim redressal of grievances caused by misconduct, violation of rules and corrupt practices prohibited under the Representation of Peoples Act 1951 to ameliorate prestige and ego.

The Election Commission of India, has no doubt taken every step to tighten the noose so that no mal-practice is allowed to be committed yet the fighters would be pointing out lapses and escapes infringing Section 123 of the Representation of Peoples Act 1951. The law prohibits bribery, undue influence, religious appeal, communal frenzy, sentimental glorification of traditional acts like ‘Sati’ publishing false material, hiring or procuring vehicles, incurring unauthorized expenditure, procuring help of government officers of the category mentioned in the RPA Act, and booth capture.

The difficulty for the defeated candidate or the person claiming setting aside election of the returned candidate is to satisfy the compliance of the provisions of Section 123 and prove the violation to the hilt by strictly proving the facts in the manner the term has been defined in the Act. For example, ‘bribery’ defined in the Act is to be shown to have taken place in the manner as mentioned in the Act. It includes any gift, offer, gratification or promise, the object of which should be, directly or indirectly inducing to stand or not to stand, or to withdraw or not to withdraw from being a candidate at an election or asking a voter to vote or refrain from voting. Even offering an award to a person who stood as a candidate and has withdrawn from candidature of ones on discretion falls within the definition of bribery.

Not only giving or taking bribery is prohibited, even an agreement to receive any gratification later on as a motive or reward for withdrawing or not withdrawing from being a candidate or influencing others to do the same is an election offence. The term gratification is not restricted to pecuniary benefit, it includes all forms of entertainment and all forms of employment for reward.

Undue influence; that is to say, any direct or indirect interference or attempt to interfere with the free exercise of any electoral right which includes threatening any person with injury, social ostracism and ex-communication or expulsion from any caste or community is strictly prohibited. Inducing or attempting to induce any elector or a candidate to believe, that he or any person, in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure is a corrupt practice.

An appeal by a candidate or his agent or by any other person with the consent of the candidate to vote or refrain from voting for any person on the ground of his religion, race caste, or community, or language or the use of appeal to religious symbols, national flag or national emblem for the furtherance of election prospects can lead to loosing the election in Court.

Promotion or attempt to promote feelings of enmity or hatred between different classes of the citizens on the grounds of religious, rare, caste, community or language is a graver offence.

Representation by making any statement of fact which is false, or which the maker of statement believes to be not true, still makes, it, in relation to the personal character or conduct of a candidates or of his having stood or having withdrawn as a candidate, to prejudice the prospects of a candidate is prohibited.

Hiring vehicles, vessels, or any public transport vehicle car or railway carriage for the purpose of carrying voters to or from a polling station is also a corrupt practice.

Procuring or attempting to procure help from a person in government service of the category of a gazetted officer, stipendiary judges and magistrates, members of the Armed forces of the Union, members of the police forces, excise and revenue officer is not allowed.

Most serious is the practice of booth capturing which was exhaustively defined in 1989 by inserting Section 135A in the RTA and making it a cognizable offence punishable with imprisonment for a sentence of 5 years but not less than 3 years. Booth capturing includes;

Seizure of a polling station, making polling authorities surrender the ballot papers and voting machines; OR taking possession of a polling station and allowing only his or their own supporters to exercise their right to poll and preventing other from doing so; OR coercing, threatening or intimidating directly or indirectly preventing him from going to the polling station; OR Seizer of a place for counting of votes and making the counting authorities to surrender ballot papers or counting machines; OR doing by any person in service of the government of any of the above activity or conniving at any of such activity for furtherance of prospects of any candidate.

The most difficult part in the process of an election petition is proving the material effect of a corrupt practice as mentioned in clause (d) of Section 100 while challenging the election of a returned candidate. Such as improper reception of the nomination papers of a candidate. If nomination papers of a person have been improperly rejected, material effect need not be proved because it is not known how many votes the person would have got, had his papers not be rejected. But if the nomination paper of any person are improperly accepted, e.g. the person was not entitled to contest for want of required a qualification such as of age, nationality or disqualification the petitioner has to prove that he has lost because of the contest of the candidate who could not contest. He has to prove by producing in court the persons who are willing to state, that but for the wrongly contesting candidate, they would have voted for the candidate who has lost number of witnesses to be produced should be equal to the margin of the votes between the votes secured by the winning candidate and the petitioner challenging the election. Some times margin is very high and producing as many witness as to cover the margin is impossible.

Similarly material effect has to be proved if corrupt practice is committed not by the candidate nor by his election agent by an other person as his agent in the interest of the returned candidate. Reception, refusal or rejection of as many votes as could otherwise cover the margin of votes has to be proved require the proof that it has caused the loss of as many votes as could cover the margin for making him win.

The election petition can be filed by a defeated candidate or any elector of the constituency. The burden of proof for both is the same and the persons contemplating challenging the election of a returned candidate have to be doubly sure of the requirement of law and quantum of proof of each fact keeping in mind the magnitude of evidence to prove material effect, lest the wheels within wheels should get struck.

Election petition is to be filed in the High Court within 45 days of the result and has to be decided within 6 months in which rarely happens some times it prolongs upto the next election. The laws are there, are strict in nature and the violation entails greave consequences but the enforcement is neither prompt nor effective leading to denial of justice.

[The writer is a senior advocate based in Chandigarh 91-9815133530. jogindersingh_toor@yahoo.com]

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