An Analysis of the concept of Disqualification of an Elected Candidate under the Corrupt Practice rule of Representation of People Act 1951
Democracy is government of the people, by the people and for the people
Elections belong to people. It should be their decision.
These two quotes by Former president of USA Abraham Lincoln don’t seem to fit in today’s narrative at all where the true essence of democracy is very much threatened.
Living in India we boast of being the largest democracy in the world and we also have the privilege of holding the largest democratic elections in the history of mankind. Elections in India is known as The Grand Festival of Democracy. However, in a nation where elections are given such a great importance, there are certain aspects of it which makes politics in India a dirty game. In this article we will be analysing one such aspect of electoral politics i.e. the practice of disqualification of any elected candidate under the corrupt practice rule of The Representation of People Act, 1951.
Eradication of corruption from politics and decriminalisation of politics are two of the long sought dreams for us as a nation in order to achieve an ideal political system. However, practically speaking, these issues are far from being wiped out. The Representation of People Act 1951(hereinafter called RPA) is a legislation in this regard. Section 8A[i] of RPA provides for disqualification of candidates on the grounds of corrupt practices. Section 123[ii] talks about corrupt practices in detail. The section enlists the activities which are deemed to be corrupt practices and any candidate if found to involve in any of these practices is liable to be disqualified.
Activities which qualify to be corrupt practice can also be easily seen in media coverages very frequently. These include threatening election officers, canvassing on the basis of religion, excessive expenditure, misusing Governmental machinery and publication of false statements. The list is long but we have used the above mentioned ones because of them being in news, recently in the backdrop of 2019 general elections.
Analysis of the law
Section 123(8)[iii] prohibits booth capturing by the candidate in order to maintain the sanctity of the election process. It is often seen that candidate(s) use their power and threaten election officers and take advantage of it. While the Election Commission during elections takes all possible steps to encourage and build confidence of the people to vote according to their conscience but the money power of the candidates often overpowers election commission’s efforts.
Section 123(3)[iv] bans appeal to vote or refrain from voting on the ground of religion. This not only offends our secular democracy but also attempts to promote enmity and hatred among people, which disintegrates and disrupts the social structure on the basis of religion. The Supreme Court in the case of Abhiram Singh v. C.D. Commachen [v] noted that election is a secular process and cannot be vitiated by any of the religions or religious denominations. However, the Court failed to list out the activities which may amount to corrupt practices on the ground of religion and left it to the legislature to decide and amend such grounds.
The power of money in elections by party(s) or by the candidate(s) plays an important role in deciding the fate of the election. Section 77(1)[vi] directs the candidate to keep a separate and correct account of all expenditure in connection with the election, whereas Section 77(3)[vii] states that the total amount shall not exceed the amount as prescribed in the act. As per a recent study conducted by Centre for Media Studies (CMS), a whooping amount of Rs. 55,000-Rs. 60,000 crores was spent in the General Election of 2019 making it the most expensive elections.[viii] The Election Commission reportedly seized a record total amount of Rs. 3475 crore worth of cash and other items.[ix]
Section 123(7)[x] strictly prohibits any sort of help from any government machinery. Normally, ruling party takes advantages of the government machineries which help them in preparing their manifesto for the elections or helps in the promotion of candidates and the party. In recently conducted 2019 General Election, BJP, the ruling party faced the charges of using such government machinery like CBI, ED, I-T to scare key opposition leaders. A landmark case in this regard is State of Uttar Pradesh v. Raj Narain,[xi] where the Allahabad High Court found that the then Prime Minister Smt. Indira Gandhi guilty of electoral malpractices as she was in violation of Section 123 of RPA. Smt. Gandhi was charged of using govt. employees as election agents and of organising campaign activities in her constituency while being still on the government payroll.
Section 123(4)[xii] prohibits the publication of false statement. However, the Election Commission allows the criticism of the political nature during the election. Since, Election in India is celebrated like political festival and thus, to maintain it purity and fairness, publication of false statement by means of election speeches, pamphlets, booklets or television, etc., is considered as corrupt practices.
The RPA has categorised electoral corruption elaborately, still instead of going down, electoral malpractice continues to flourish in one way or another. It might be shocking for many of us to know that in a survey conducted by centre for media studies over the course of last decade, it was observed that nearly 20% of India’s voters were paid to vote[xiii]. It is also important to see that there were some reported instances of voters being paid to vote in the last general elections as well[xiv]. Apart from these, there are sting operations and leaked conversations[xv]which have shown politicians making strategies to bribe voters. It is also a well-established fact that the campaign expenditure is regularly breached by the candidates[xvi]. Apart from these, there are many other such malpractices and corrupt practices that are very much prevalent in our electoral setup.
It is important to observe that given the quantum of Indian Election at which it takes place it is very difficult to detect each and every stance of electoral malpractice but it can definitely be controlled and can be brought to a much better level. With the kind of hue and cry surrounding the Election Commission during the last Lok Sabha elections recently[xvii], it is very important for The Election Commission to prove its credibility as an independent and strong constitutional body[xviii]. The Constitution of India has vested some important tasks to the Election commission and we hope the election commission realises its true role sooner or later.
If nothing else works out then we can at least put on our hopes on the Supreme Court of India to make a strong guideline and order the high courts to take the matters of election petitions seriously. We see Supreme Court the guardian of democracy and from time to time it has proved itself in this regard.
We strongly feel that, it is high time that we as a nation make sure that the word corruption should be wiped out of our election system and elections in India should only be true reflection of the will of the people, then only we can boast of being the largest democracy of the world in true sense.
[i]Section 8A, The Representation Of The People Act, 1951
[ii] Section 123,The Representation Of The People Act, 1951
[iii]Section 123(8),The Representation Of The People Act, 1951
[iv] Section 123(3), The Representation Of The People Act, 1951
[v] Abhiram Singh v. C.D. Commachen, (2014) 14 SCC 382
[vi] Section 77(1), The Representation Of The People Act, 1951
[vii] Section 77(3), The Representation Of The People Act, 1951
[ix] Section 123(4), The Representation Of The People Act, 1951
[x] Section 123(7), The Representation Of The People Act,
[xi] The State of Uttar Pradesh v. Raj Narain1975 AIR 865, 1975
[xii] Section 123(4), The Representation Of The People Act, 1951
[xviii]Article 324, The Constitution of India, 1950
ABOUT THE AUTHOR(S)
Raja Reeshav Roy is a 4th Year, BA LLB student at National Law University Jodhpur. He has a keen interest in Indian and International Politics and Constitutional Law.
Aniket Raj is a 4th Year, BA LLB Student. at National Law University Jodhpur. He is interested in the field of IPR and International Humanitarian Law.
In Content Picture Credit: Election Commission of India