Why we are discussing this issue?

Opening Remarks:

In 2024 Lok Sabha general election was held in May. This was the 18th Lok Sabha election. All political parties offered in manifesto many promises. Freebies are offered by almost all political parties. In Delhi the local state government is sworn in thrice based on freebies. Similarly in Karnataka and Telangana the state government is elected based on freebies. The disadvantage of such freebies is the economy of the State is pulled back due to nonproductive expenses. The taxpayers do not get more advance facilities from the tax they have paid. PIL challenging freebies is pending before the Supreme Court.

During Lok Sabha election we saw that one of the parties Congress have distributed a guaranteed cards along with the forms that if they come to power, they will give Rs.8500/- to every woman and Rs.1,000,00/- per year to meet major expenses. This party has won more seats than last two elections and there was religious concentration of votes. There was also a statement that the party if come to power would confiscate entire wealth and do caste survey and thereafter redistribute the same.

The congress party won 99 Lok Sabha seats. However, they are in power in three states. Telangana, Himachal and Karnataka. They can offer them. But women who were given guarantee cards along with form started Queuing up outside Congress Party offices. They said we have lost. The question arise now is whether this is a blatant fraud? What does law say?

The law which governs election is the Representation of peoples Act 1951     ( Said RP Act 1951)

The question is whether all this statements go against the provisions of Section 123 of RP Act 1951 ? A complaint is pending before the President of India challenging election.

Now question arises

  1. Can third party challenge in representative character the election of candidates who belong to a single largest party who won election on basis of guaranteed card?
  2. Who has jurisdiction to hear the election Petition under Section 123 and 8A of RP Act 1951?
  3. Does President of India have power under Section 123 or 8 A of the said R.P. Act 1951?

This Act came into force on 17th July 1951.

Preamble of the Act explains the purpose of its enactment.

An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt 1*** practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.

The terms corrupt practices is defined in the Act as “corrupt practice means any of the practices specified in section 123”

What does corrupt practices mean.

Section 123 in The Representation of the People Act, 1951 provides for the same.

 Corrupt practices.—

The following shall be deemed to be corrupt practices for the purposes of this Act:—

(1)“Bribery”, that is to say—

(A)   any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing—

(a)     a person to stand or not to stand as, or to withdraw or not to withdraw    from being a candidate at an election, or

(b)     an elector to vote or refrain from voting at an election, or as a reward to—(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or (ii)an elector for having voted or refrained from voting;

(B)   the receipt of, or agreement to receive, any gratification, whether as a motive or a reward—

(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or

(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.

Explanation.—For the purposes of this clause 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 bonafide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78.

(2)    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:

Provided that—

(a)  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 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;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral     right, shall not be deemed to be interference within the meaning of this clause.

(3)    The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

Provided that no symbol allotted under this Act to a candidate shall be  deemed to be a religious symbol or a national symbol for the purposes of this clause.

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

Explanation.—For the purposes of this clause, “sati” and “glorification” in relaion to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988).

(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate’s election.

(5)    The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub-section (1) of section 29 for the poll: Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power: Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.

Explanation.—In this clause, the expression “vehicle” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.

(6)   The incurring or authorizing of expenditure in contravention of section 77.

(7)      The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election, from any person in the service of the Government and belonging to any of the following classes, namely:—

(a)  gazetted officers;(b)stipendiary judges and magistrates;(c)members of the armed forces of the Union;  (d)members of the police forces;(e)excise officers; (f)revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and (g)such other class of persons in the service of the Government as may be prescribed:

Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate’s election.(h)class of persons in the service of a local authority, university, government company or institution or concern or undertaking appointed or deputed by the Election Commission in connection with the conduct of elections.

(8)  Booth capturing by a candidate or his agent or other person.

Explanation.—(1)In this section the expression “agent” includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.

(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate’s election if he acts as an election agent of that candidate.

(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof—(i)of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and(ii)where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service such person ceased to be in such service with effect from the said date.

(4) For the purposes of clause (8), “booth capturing” shall have the same meaning as in section 135A.

What is the procedure to complain about corrupt practices. Its also provided in the Act itself

8A. Disqualification on ground of corrupt practices.—(1) The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, [as soon as may be within a period of three months from the date such order takes effect], by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period:

Provided that the period for which any person may be disqualified under this sub-section shall in no case exceed six years from the date on which the order made in relation to him under section 99 takes effect.

(2) Any person who stands disqualified under section 8A of this Act as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975 (40 of 1975), may, if the period of such disqualification has not expired, submit a petition to the President for the removal of such disqualification for the unexpired portion of the said period.

(3) Before giving his decision on any question mentioned in sub-section (1) or on any petition submitted under sub-section (2), the President shall obtain the opinion of the Election Commission on such question or petition and shall act according to such opinion.]

Now let us see what Supreme Court say in this and what RPAct 1951 provides.

In Surinder Singh vs Hardayal Singh Supreme Court held that, It is well settled that allegations of corrupt practice are quasi-criminal charges and the proof that would be required in support of such allegations would be as in a criminal charge. Therefore, charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials.

Jagannath v. Jaswant Singh & Ors. [1954] 5 SCR 892 and  Venkata Reddy v. R. Sultan & Ors. [1976] 2 SCC 455 Election disputes are not cases at common law or equity but are strict statutory proceedings and result of an election is not available to be interfered with lightly
In SHASHANKA J. SREEDHARA vs. B.Z. ZAMEER AHMED KHAN Supreme Court held that, “The contention of the learned counsel that the commitments by a political party in its manifesto, which eventually lead to direct or indirect financial help to the public at large, will also amount to corrupt practice by a candidate of that party, is too far-fetched and cannot be accepted. In any case, in the facts and circumstances of these cases, we need not to go into such question elaborately,” The Bench of Justices Surya Kant and K.V. Viswanathan, while dismissing the appeal, said that it does not need to deal with the question elaborately in the present case and left the above question of law open to be decided in an appropriate case. It may be noted that a PIL seeking to stop political parties from promising ‘freebies’ in election manifestos is pending before the Supreme Court.

Apex court judgment in the case of S. Subramaniam Balaji Vs. Govt. of Tamilnadu., (2013) 9 SCC 659. Therein, it was opined, “The five guarantees of the Indian National Congress have to be considered as social welfare policies. Whether they are financially viable or not is altogether a different aspect. It is for the other parties to show as to how implementation of the said schemes amounts to bankruptcy of the State Treasury and it can only lead to mal governance of the State. It is possible that they can be termed as wrong policies under the given facts and circumstances of the case, but cannot be termed as corrupt practices.”

Cryptic notes:

While reading the provisions it appears that role of the President is of advisory and not of executory. But here one provision that is very important is Chapter II Section 80 which says that No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.

Before going into jurisdiction let us see the current scenario. Freebies are offered by almost all political parties. In Delhi government is sworn in thrice on basis of freebies. Similarly in Karnataka and Telangana the state government is elected on basis of freebies. The disadvantage of such freebies is the economy of State is pulled back due to nonproductive expenses. The taxpayers do not get more advance facilities from the tax they have paid. PIL challenging freebies is pending before Supreme Court.

During Lok Sabha election we saw that Congress party has distributed a guarantee card that if they come to power they will give Rs.8500/- to every woman and Rs.1,000,00/- per year to meet major expenses. This party has won more seats and there was religious concentration of votes. There was also a statement that the party if come to power would confiscate entire wealth and do caste survey and thereafter redistribute the same.

Question is whether all these statements go against the provisions of Section 123 of RP Act 1951? A complaint is filed by third party Advocate which is pending before the President of India challenging election.

  1. Can third party challenge in representative character the election of candidates who belong to a single largest party who won election on basis of guarantee card?
  2. Does President of India has power under Section 123 or 8 A of the said RPAct 1951?

CHAPTER II Section 80  of said RP Act 1951 says

  1.  Election Petitions.—No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.

80A. High Court to try election petitions.—

(1) The Court having jurisdiction to try an election petition shall be the High Court.

(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose:

Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.

(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.

Section 99 provides that  99. Other orders to be made by the High Court.—(1) At the time of making an order under section 98 [the High Court] shall also make an order—

7[(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording—

(i) finding whether any corrupt practice has or has not been proved to have been committed 8*** at the election, and the nature of that corrupt practice; and

(ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and] fixing the total amount of cost payable and specifying the persons by and to whom costs shall be paid:

Provided that 1[a person who is not a party to the petition shall not be named] in the order under sub-clause (ii) of clause (a) unless—

(a) he has been given notice to appear before 2[the High Court] and to show cause why he should not be so named; and

(b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by 2[the High Court] and has given evidence against him, of calling evidence in his defense and of being heard.

[(2) In this section and in section 100, the expression “agent” has the same meaning as in section 123.]

Cryptic Notes:

In this entire Act there is no provision that empowers President to adjudicate upon the election petitions. Originally Election Tribunal had power but by an amendment made by Act 47 of 1966, s. 42, for “the Tribunal” (w.e.f. 14-12-1966) words High Court was inserted,

Stare Decisis and precedent

 When President can adjudicate on disqualification of members of parliament

The Constitution provides that

  1. Disqualifications for membership.—(1) A person shall be

disqualified for being chosen as, and for being, a member of either House of Parliament—

1[(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;]

(b) if he is of unsound mind and stands so declared by a competent

court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

2[Explanation.—For the purposes of this clause] a person shall not be

deemed to hold an office of profit under the Government of India or the

Government of any State by reason only that he is a Minister either for the Union or for such State.

3[(2) A person shall be disqualified for being a member of either House

of Parliament if he is so disqualified under the Tenth Schedule.]

4[103. Decision on questions as to disqualifications of members.—If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final.

Summaries:

As far as challenge to election on issues mentioned in Section 123 of R.P. Act 1951 the High Court has jurisdiction to try and entertain Petitions and not President as the issue of corrupt practice does not fall within Article 102 and 103. Option to the President in current case of challenge to 99 MPs

Seek opinion of the Election Commission or of Chief Justice of India and direct Petitioner to comply with the opinion of the said authorities.

Remedy to Voters to whom Guarantee with Forms is distributed

There is no provision in RP Act 1951 giving rights to the voters for execution of poll promise.

However they can file civil suit for execution depending upon  the terms and conditions of the Guarantee Card.

Shruti Desai

24th June 2024