Election Law Notes- Corrupt Practices

Section 123- Corrupt Practices- Safeguard the purity of the elections and people don’t mess with election laws.

Ghasiram v. Dal Singh- AIR 1968 SC 1191- Justice Hidayatullah- Dispersion of discretionary grants by ministers. There is a thin line between corrupt practice and evil practice depending upon the soundness of the evidence. Section 123 is a ground for setting aside under section 100 of the act. So if the HC is of the opinion that any corrupt practice by a returned candidate or result of the election in so far as it concerns the returned candidate had been materially affected, the election of the returned candidate is liable to be declared as void under Section 100(2).

It is quasi-criminal in nature hence it must be proved beyond reasonable doubt.

Bribery- Banke Bihari Das v. Chitranjan Das- Motive of a candidate by giving gifts is at most to make him popular in his constituency.

S.B. Adithya v. S. Kandaswami- It was alleged that the respondents payed two sums to two candidates in order to drop them out of the election contest. They withdrew but could not be made party to the election petition. Court said though gift cannot be made without acceptance of it but the acceptance is deliberately omitted from the corrupt practices, therefore acceptance of gift is not bribery. Section 123 was amended after this judgment.

Omkar Singh v. Kashi Ram- SC considered the issue and observed that so long as the payment is made only for the expenses, it will not fall within the mischief of Section 123 of the act.

Trilochan Singh v. Karnal Singh- Respondent contended that the gratification given to the retired community cannot constitute as bribery. The HC said following

1.      It gives satisfaction or pleasure to individuals.

2.      The gift or promise to give gratification is of some value.

3.      The gift or promise by a candidate is made with corrupt motive of directly or indirectly inducing the persons gratified to vote in his favour or to induce other electors in his favour.

Section 123- The term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.

Basically, it means satisfaction and in the context in which it is used must have something valuable and must satisfy person’s object desire whether or not that thing is estimable in terms of money. Thus offer to give employment or treating voters may constitute bribery if motive of allurement was to obtain favour in election. However in support of such corrupt practice must satisfy the test which is applied for the proof of criminal charges.

Mohan Singh v. Bhanwar Lal- AIR 1976 SC 1366- The returned candidate offered to help one of the other candidates to get employment in a sugar factory. The offer was in order to induce him to withdraw his nomination. SC said that the acceptance of offer which constitutes a motive or reward for withdrawing from the candidature must be an acceptance of gratification or a thing of some value though not necessarily estimable in terms of money but a mere offer to help in getting employment is not such offer of gratification within the meaning of Section 123 (1)(B) as to constitute it as a corrupt practice.

Bribery and Charity-  Offer to pay or promise for the purpose of inducement for the persons having religious inducement over a particular community may constitute as bribery especially when the money in invested during the elections.

Sarla Devi v. Birendra Singh- Returned Candidate did the auspicious ceremony of digging a well and promised to have a well for harijans. There was no allegation that the promise was made with a corrupt motive and it was done to induce harijans. HC said that there is no proof to establish the motive. So, all kinds of charity cannot constitute as bribery and it depends upon the facts and circumstances of each case that whether ill motive could be inferred or not.

Undue Influence- Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right.

Lal Singh v. Vallabh Das- AIR 1967 Guj. 62- It is meant to ensure freedom to the elector. It is designed to prevent persons from deflecting the elector from enjoying that freedom by influencing him in a manner which would be regarded to be undue i.e. by creating an atmosphere or situation by which choice of a candidate will be made not on the merits of the candidates of the parties or their programs and instead selecting them on extraneous conditions such that a selection would affect spiritually or the person in whom they are interested or would create a feeling that they would personally gain or lose in matters which do not relate to the policies or programs on which governments are run if they cast their vote in favour or against a candidate.

There can be undue influence. Even at the stage where the elector prepares his mind by going into the merits and demerits of the candidate, the elector could be affected. After this mental process as well, the elector to be unduly influenced while casting of votes.

Shiv Kirpal Singh v. V.V. Giri- AIR 1970 SC 2097- Canvassing is permissible. If there is an interference or attempted interference, it does not contemplate with the mental process of the person. Undue influence will start at the time of casting of votes and not at the mental process stage.

Manubhai Nandlal Amorse v. Popat Lal Mani Lal Joshi- AIR 1969 SC 734- In considering the speeches, the status of the speaker and the character of the audience are relevant considerations.

Sometimes there is a debate as to the qualification and competency of other candidates.

M.C. Vardhachari v. D. Vasant Pai- Candidates in elections are not only entitled to raise political issues they can also raise social economic and criminal issues, the candidate is free to put his viewpoints so long as there is no comment upon the character of the contestants.

Issuing of Whip- Tenth Schedule- The legislators are bound to act upon the advice of the legislating party.

Babu Rao v. Zakir Hussain- AIR 1968 SC 904- The whip directed to the members marked first preference in the name of Dr.Zakir Hussain as President. No second preference was given. No threat for non-compliance was given. The directions prevented the electors to freely exercise their choice. Supreme Court said it is not undue influence because electors were free to do in spite of the advice.

Relevant Provision-

Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who—

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector 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, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

Declaration of Public Policy or promise during the Eve of Election- This does not constitute as corrupt practice.

Upendra Lal v. Narayani Devi- On the eve of election, an ordinance was promulgated granting exemption on payment of land revenue in certain cases. Around 30,000 tenants were benefitted by such measure. HC said the action was general in  character and would not amount to undue influence simply because several persons took benefit of it.

Section 123(3)- Appeal on ground of caste, community and religion. This section enhances the integrity and secularism of our country.

S.R. Bommai v. Union of India- AIR 1194 SC 1918- Supreme Court said that the introduction of religion into politics is not merely in negation of constitutional mandate but also a positive violation of constitutional obligation of duty, responsibility or obligation and positive prescription, prohibition especially enjoyed by RP Act, 1951. The party which seeks to ensure votes through caste orientation policy disintegrates people on the ground of religion and caste. It divides the people and disrupts the social structure on grounds of religion and caste which is obnoxious and anathema to constitutional culture and basic features.

Subash Desai v. Sharad J. Rao- Supreme Court rejected the contention that these provisions violated right to religion. When the framers guaranteed every citizen, right to freely profess, practice his religion that right does not extend to creating hatred between persons of two different religions. These sections never purport to curb the right to religion under the constitution. They only purport to curb the appeal on the ground of religion and promoting enmity during the election by the contestant or his agents for the prospects of the election prospects of that candidate or for prejudicially affecting other candidates.