Report No. 42
This chapter was inserted in the Penal Code in 1920 by the Indian Elections Offences and Inquiries Act, and for the first time, various corrupt and illegal practices liable to occur at elections were made punishable offences. The punishments prescribed for them were, however, light. Only three of these offences, viz., bribery, undue influence and personation, were considered grave enough to deserve imprisonment and that too upto only one year.
The other three offences, viz., making false statements about the personal character or conduct of a candidate, illegal payments in connection with an election and failure to keep election accounts as required by law, were made punishable with fine only. A wide definition of 'election' as denoting any election to a legislative, municipal or other public authority of whatever character was inserted by the same Act of 1920 in section 21 of the Code as Explanation 3. By virtue of section 6 of the Code this definition applies to the whole chapter.
9A.2. Fetter on prosecutions under section 196, Cr. P.C.-
It appears that several local governments expressed the fear that the new penal provisions were likely to be abused, specially in rural areas, for putting one's personal enemies into trouble by foisting false cases on them after an election. In order to allay these apprehensions, section 196 of the Criminal Procedure Code was simultaneously amended making private prosecutions of election offences subject to executive control. Courts were debarred from taking cognizance of an election offence under Chapter 9A of the Penal Code except "upon complaint made by order of, or under authority from, the Governor-General in Council, the Local Government or some officer empowered by the Governor-General in Council in this behalf".
9A.3. Recommendation in previous Report.-
As observed by us in our last Report1 on the Code of Criminal Procedure, "it was thought that this would give some discretion to the Government to determine whether criminal proceedings were warranted in the circumstances of each case, so that vexatious proceedings instituted solely on the basis of political animosity by private individuals could be avoided. This secondary object was certainly achieved but it is doubtful whether the penal provisions ostentatiously put in the Penal Code, but effectively blunted by section 196 of the Procedure Code, helped to maintain the purity of elections to any appreciable extent.
This difficulty was realised in some provinces in regard to the offence of personation punishable under section 171F of the Penal Code. Even a person blatantly committing this offence at the polling booth could not be arrested or otherwise proceeded against on the spot since the offence was non-cognizable and the complaint of an empowered officer was required for prosecuting the offender in court. The Criminal Procedure Code was locally amended by four provinces excluding this offence from the scope of section 196 and making it cognizable. This lead was followed up in the Representation of the People Act, 1951, and the amendment became applicable throughout India.
The experience of the last 20 years in the field of countrywide democratic elections shows that, unless these impediments to prosecution are removed, the mere fact that bribery, undue influence, character assassination etc., are punishable on conviction by a criminal court makes little difference and these corrupt practices are indulged in with impunity. The number of complaints lodged by the Government or empowered officers in regard to election offences (apart from personation) is naturally very small. Under the party system of government prevalent throughout the country it will, no doubt, be embarrassing for the State Government to decide in the first instance whether a complaint ought to be lodged in a particular case.
Whichever way it decides this question it is most likely that political motives and prejudices will be attributed to it. It is possible that if the bar contained in section 196 of the Code is removed there will be a spate of private complaints, including quite a few vexatious ones for the sake of harassment, but we feel that this possibility must be faced in the interest of free and fair elections. We recommend that all election offences should be excluded from the purview of section 196."2
1. 41st Report.
2. This recommendation has been accepted vide clause 197 of the Code of Criminal Procedure Bill, 1970, introduced in the Rajya Sabha.
9A.4. Section 171.-definition of "electoral right" amended.-
Section 171A defines "candidate" and "electoral right". While the first definition does not call for any comment, we notice that the definition of "electoral right" does not expressly refer to the right of a person not to withdraw his candidature in an election. This was considered to be a lacuna in section 79(d) of the Representation of the People Act, 1951, which originally defined "electoral right" in the same way as section 171A(b) of the Code, and in sub-clause (B)(a) of section 123(1) of that Act which defined bribery.
With reference to the latter definition, as it stood before 1966, it was held that an inducement offered to a candidate not to withdraw his candidature did not amount to the corrupt practice of bribery. In order to bring such an inducement within the definition, the aforesaid provisions of the Representation of the People Act, 1951, were amended in 1966.
For the same reason, we propose that clause (b) of section 171A should be amended to read.-
"(b) 'electoral right' means the right of a person at an election to stand or not to stand as a candidate, or to withdraw or not to withdraw his candidature, or to vote or to refrain from voting".
9A.5. Suggestion to include right to nominate in "electoral right" considered.-
We considered an odd suggestion that the right of a person to nominate anyone as a candidate at an election should also be mentioned in the definition of "electoral right". The object is apparently to punish any attempt to bribe or exercise undue influence over a person in relation to the act of nominating candidates at an election, but this is clearly far-fetched. It is unlikely that any person entitled to nominate a person will demand, or be given, an illegal gratification for this simple service; and it is even less likely that a person who cannot get himself nominated as a candidate without a bribe to his proposer will be optimistic enough to stand for the election.
9A.6. Sections 171B and 171.-combined and amended.-
Section 171B gives a comprehensive and satisfactory definition of the offence of bribery. The punishment for this offence, the punishment for the offence of bribery by treating and a definition of "treating" are given in section 171E. It will be clearer to all concerned if these matters.also are included in section 171B itself as sub-section (4), making that section complete.
We have already remarked on the lightness of the punishment provided for election offences in this chapter. Even after allowing for the fact that the chapter is applicable to all kinds of elections, from elections to Parliament down to elections to a village panchayat, we feel that, if purity of elections is to be maintained, we cannot afford to take such a lenient view of these corrupt practices.
While in the last resort, the efficacy of these penal provisions depends on public opinion, the law should indicate to the courts and the public that these rules of conduct are essential for democratic elections and their infringement will be severely dealt with. We recommend that the offences of bribery (other than bribery by treating), undue influence, personation and making false statements about a candidate's personal character or conduct should all be punishable with imprisonment of either description which may extend to two years or with fine, or with both.
Accordingly we propose that section 171E be omitted, and the following sub-section be added to section 171B:
"(4) Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that bribery by treating shall be punishable with fine only.
Explanation.-"Treating" means that form of bribery where the gratification consists in food, drink, entertainment or provision."
9A.7. Section 171.-undue influence at an election.-
The offence of undue influence at an election is defined very widely in section 171C to cover any kind of voluntary interference with the free exercise of any electoral right. Two kinds of such interference are specially mentioned in sub-section (2) without prejudice to the wide scope of the general definition given in sub-section (1). These are, threatening any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, and inducing a candidate or voter to believe that he or any person in whom he is interested will become an object of divine displeasure or spiritual censure. There is, of course, no doubt that when the interference takes the form of using, or threatening to use, force or violence, it will be regarded as a blatant form of the offence.
9A.8. Difficulty of interpreting "interference.-canvassing by Ministers.-
The Supreme Court observed in Babu Rao v. Zakir Hussain, (1968) 2 SCR 133 (146), that "it is difficult to lay down in general terms where mere canvassing ends and interference or attempted interference with the free exercise of any electoral right begins, That is a matter to be determined in each case; but there can be no doubt that if what is done is merely canvassing, it would not be undue influence."
After reviewing previous decisions of election tribunals and courts on this subject, the Court observed "that it has been consistently held in this country that it is open to Ministers to canvass for candidates of their party standing for election. Such canvassing does not amount to undue influence but it is proper use of the Ministers' right to ask the public to support candidates belonging to the Ministers' party. It is only where a Minister abuses his position as such and goes beyond merely asking for support for the candidates belonging to his party that a question of undue influence may arise."