Electoral Malpractices

What are Electoral Malpractices

Electoral malpractices refer to illegal, unethical, or unfair actions carried out by individuals, political parties, or institutions to manipulate the outcome of an election for personal or partisan advantage rather than the public interest. It is also known as electoral fraud, which undermines the integrity of democratic systems by compromising free, fair, and credible elections. It involves the distortion of electoral processes through acts of coercion, deception, bribery, violence, or manipulation of laws and institutions. Electoral malpractices can be understood broadly as systematic distortions and manipulations of election processes that compromise fairness, transparency, and representativeness in Indian democracy.

Globally, the term "electoral fraud" often involves illicit attempts to interfere with the actual process of counting votes, such as increasing a favoured candidate’s share or suppressing that of a rival. Academically, fraud can be narrowly defined as illicit manipulation of the ballot box itself, either in terms of what is deposited or what is withdrawn. While most practices that undermine elections are outlawed by electoral legislation or general criminal law, the concept of malpractice is broader. It encompasses acts that, though technically legal, are considered morally unacceptable, contrary to the spirit of the election, or in violation of democratic principles.

The legal framework in India addresses electoral misconduct through a clear dichotomy established in the Representation of the People Act, 1951. This statute, enacted as Act no. 43 of 1951, serves as the core legal instrument governing elections to Parliament and state legislatures. The legislative strategy under the RPA, particularly in Part VII, separates misconduct into two categories based on severity and primary legal consequence: Corrupt Practices and Electoral Offences. The Indian model, by heavily focusing on issues like bribery and undue influence, aims to police the moral and ethical conduct of the campaign, recognising that vitiating the voter's intent through coercion or inducement is as destructive to democracy as technical vote rigging.

The RPA, 1951, provides the comprehensive legal structure for conducting elections in India. Part VII of the Act is specifically dedicated to defining and sanctioning electoral misconduct.

The Act establishes a fundamental distinction between the types of legal action taken against different forms of malpractice: Corrupt Practices (Chapter I, Section 123), Electoral Offences (Chapter III, Sections 125–136)

Corrupt Practices (Chapter I, Section 123)

Corrupt practices are actions committed by a candidate, their agent, or any person acting with their consent, that are deemed to subvert the fairness of the election contest. These practices are adjudicated via an Election Petition filed typically before the High Court. If proven, the court may declare the election of the returned candidate null and void (Section 100). Furthermore, the candidate may be disqualified from holding office under Section 8A.

The significant implication of classifying an act as a Corrupt Practice is the inherent difficulty in proving it, given the high stake of overturning a democratic mandate. This strict requirement necessitates a parallel system of lower-threshold criminal offenses, known as Electoral Offences, to punish misconduct that might not meet the standard required to annul an election, thereby ensuring a measure of accountability.

Section 123 of the RPA, 1951, provides an exhaustive definition of Corrupt Practices. These provisions aim to preserve the free exercise of electoral rights and the ethical integrity of the candidates.

Bribery (Section 123(1))

Bribery is defined as the giving, offering, or promising of any gratification, either direct or indirect, to any person with the object of inducing them to vote or refrain from voting, or as a reward for having done so.

Undue Influence (Section 123(2))

Undue influence covers any direct or indirect interference, or attempt to interfere, with the free exercise of any electoral right. The definition is crucial for recognizing coercion beyond simple physical threats. The scope of coercion extends specifically to psychological and sociological pressure points within Indian society, including threats of injury, spiritual injury, damage to reputation, financial loss , and, critically, threats of social ostracism and expulsion from any caste or community. By explicitly mentioning these elements, the law recognizes that in a society marked by deeply embedded community structures, non-physical pressure is a powerful form of electoral manipulation. This clause transforms disputes over social power into actionable electoral violations, safeguarding individual free will against entrenched societal hierarchies.  

Communal Appeal: Religion, Race, Caste, Community, or Language (Section 123(3))

This critical clause prohibits the systematic appeal by a candidate, their agent, or any person acting with consent, to vote or refrain from voting on grounds of caste, race, community, or religion. It also prohibits the use of or appeal to religious symbols or national symbols (such as the national flag or emblem) for the furtherance of the candidate's election prospects.

Jurisprudentially, the Supreme Court has rigorously enforced this clause, emphasising the secular nature of elections. In Abhiram Singh v C.D. Commachen (2017), the court held that this prohibition extends to appeals made based on the social, linguistic, or religious identity of the voter as well as the candidate. This judicial stance aligns with the constitutional ideal established in S.R. Bommai v. Union of India (1994), which held that religion cannot be mixed with any secular activity of the State. The legal framework thus strictly enforces the separation of religion and state in political messaging, confirming that the electoral process must remain purely secular regardless of political expediency.  

Publication of False Statements (Section 123(4))

This provision relates to the publication of any statement of fact known or believed to be false concerning the personal character or conduct of any candidate, provided the statement is reasonably calculated to prejudice the prospects of that candidate's election. It must be noted that the Supreme Court has clarified that simple inaccuracy or concealment of details, such as educational qualifications, does not automatically amount to unduly influencing voters sufficient to void an election under this clause.  

Hiring or Procuring of Vehicles (Section 123(5))

This practice involves the illegal hiring or procuring of any vehicle or vessel for the conveyance of electors to or from any polling station. This applies to vehicles hired by a candidate, their agent, or any other person with their consent. Certain exceptions are made for non-motorized vehicles hired by individual electors at their own joint cost, or the use of public transport by an elector at their own cost.

Incurring or Authorising Excessive Expenditure (Section 123(6))

This refers to any expenditure incurred or authorised by a candidate or their election agent that exceeds the prescribed legal limits, thereby providing an unfair financial advantage in the contest. This classifies incurring or authorising excessive expenditure as a corrupt practice. This provision serves to promote a level playing field and prevent candidates from gaining an unfair advantage through the use of "money power".

Obtaining Assistance of Government Servants (Section 123(7))

This prohibits candidates from obtaining or procuring the assistance of specified classes of persons in government service (e.g., gazetted officers, police personnel, or those entrusted with election duties) for the furtherance of election prospects. The law aims to ensure elections are free and fair by maintaining the political neutrality and impartiality of the government machinery.

Booth Capturing (Section 123(8))

Booth capturing is defined as the seizure of a polling station by any person or group, or the taking possession of election materials, including voting machines, resulting in the destruction or manipulation of the poll process. This act is considered one of the gravest assaults on the democratic process.

Electoral Offences (RPA, Sections 125–136)

Electoral offences are statutory crimes designed to maintain the integrity, order, and procedural correctness of the electoral administration. These offenses generally deal with actions that disrupt the voting process, violate official duties, or breach campaign rules regarding public order near polling stations. These offences are tried in the criminal justice system and result in explicit punitive sanctions, such as terms of imprisonment, fines, or both, as specified in the respective sections. For instance, a person contravening certain provisions may be punishable with imprisonment extending up to six months, or fine, or both.

Electoral Offences constitute a range of actions that carry specific criminal penalties, distinct from the election-voiding consequences of Corrupt Practices. These offenses are designed to safeguard the procedural and administrative integrity of the election.

Offences Related to Pre-Poll Conduct and Transparency

Promoting Enmity (Section 125): Similar to Section 123(3), this section criminalizes promoting enmity between classes of citizens in connection with an election. This is a punitive measure taken against hate speech.  

Penalty for Filing False Affidavit (Section 125A): This crucial section mandates punishment for candidates who fail to furnish, give false, or conceal information relating to their criminal background or assets in the affidavit submitted with the nomination paper. A candidate found guilty is punishable with imprisonment for a term which may extend to six months, or with fine, or with both. The inclusion of Section 125A highlights a direct legislative response to judicial activism, where Supreme Court mandates on candidate disclosure forced the law to create a statutory crime (an Electoral Offence) to enforce accountability when the act did not meet the higher threshold required to be deemed a Corrupt Practice.  

Prohibition of Public Meetings (Section 126): This provision prohibits holding public meetings or processions during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll (the silence period).

Offences Related to Polling Day Conduct

Sections 128 to 132 govern conduct at or near polling stations. These include:

• Maintenance of secrecy of voting (Section 128): Punishes any breach of the confidentiality of the voting process.  
• Prohibition of canvassing (Section 130): Penalizes any canvassing activity within a specified radius of a polling station.  
• Penalty for disorderly conduct and misconduct (Sections 131, 132): Ensures public order at polling locations. The presiding officer has the authority to direct any police officer to arrest a person committing or having committed an offense punishable under these sections.  

Offences by Government and Election Officials

The RPA recognises that the integrity of the process depends on the neutrality of the administrative machinery. Section 129 prohibits election officers from persuading, dissuading, or influencing voting, or from acting as an agent for any candidate. Furthermore, Section 134A penalises Government servants for acting as an election agent, polling agent, or counting agent. By criminalising official misconduct, the Act seeks to prevent the misuse of state authority in favour of any specific political entity.

Severe Procedural Offences

Severe procedural offences include the criminal aspect of booth capturing, defined in Section 135A. Additionally, Section 134B prohibits any person from going armed to or near a polling station. Another provision to maintain fairness and order is Section 135C, which bans the sale, distribution, or giving of liquor on the polling day.

Judicial Review and Landmark Jurisprudence

Judicial intervention, particularly by the Supreme Court, has been instrumental in addressing legislative gaps, interpreting ambiguities, and strengthening the framework against electoral malpractices.

The Plenary Powers of the Election Commission (Article 324)

The constitutional basis for the Election Commission of India's (ECI) wide-ranging authority lies in Article 324, which confers powers of superintendence, direction, and control over elections.  

The landmark judgment in Mohinder Singh Gill V. Chief Election Commissioner of India & Ors. affirmed the plenary power of the Chief Election Commissioner under Article 324 to issue directions necessary to hold free and fair elections, provided these directions are not contrary to existing laws. The Court recognized Article 324 as a "reservoir of power" enabling the ECI to address the "infinite variety of situations" and contingencies (such as localized booth capturing) that enacted laws could not foresee. This power allows the ECI to fill regulatory vacuums until legislation is passed, confirming its role as the constitutional guardian of the electoral process.

Judicial Interpretation of Section 123(3) and Secularism

The Supreme Court has consistently reinforced the secular mandate inherent in the electoral process. The 2017 ruling in Abhiram Singh v C.D. Commachen solidified the strict interpretation of Section 123(3), confirming that seeking votes on the basis of a candidate's or a voter's religion, race, caste, community, or language is a corrupt practice. The Court observed that "election is a secular exercise," and appealing on religious grounds amounts to mixing religion with state power. This judicial enforcement strongly upholds the secular philosophy laid down earlier in S.R. Bommai v. Union of India (1994).

The Debate on Economic Inducement (Freebies)

A contentious area involves the electoral practice of political parties promising freebies or subsidised goods and services to voters. While Bribery (S. 123(1)) addresses specific gratification and Undue Influence (S. 123(2)) covers financial threats, large-scale electoral promises of economic incentives remain ambiguous. The Supreme Court recognised the complexity of this issue and, in 2022, directed a three-judge bench to review its earlier 2013 in the case of S. Subramaniam Balaji vs State of Tamil Nadu, which held that promises of freebies could not automatically be termed a corrupt practice. The challenge lies in distinguishing legitimate governmental welfare policies from targeted, unsustainable economic inducements designed solely for electoral gain, indicating a critical area requiring definitive legal clarity.