Chapter XI of the Indian Penal Code (IPC) deals with Offences related to Elections which comprises of Section 171A to 171E. This chapter was added by the virtue of Indian Elections Offences and Inquiries Act, 1920. The addition was made citing the restricted participation allowed to the Indians in government by the British ruled Government.
The provisions laid down in the aforementioned Sections make the act of bribery, undue influence, personation and other malpractices at elections punishable. It is worthwhile to know what the Select Committee had to say to justification while incorporating such offences in the Code. Hereunder is an excerpt of the same:
“We feel there is a distinct advantage at the present time when the election is to play so important a part in the new public life of India that the public conscience should be markedly drawn to the danger of corrupt practices in relation to the franchise, whether that franchise relates to legislative or other bodies. We feel it is of the greatest importance that the principle of the purity of the franchise should be insisted on in the general criminal law of the country and that it should not be left to local legislatures to deal with the broad principles.”
Representation of People’s Act (RPA) which was introduced in the year of 1950, was the first Act post-independence which provided for a comprehensive framework covering the laws related to elections. Detailed provisions pertinent to conduct and nature of elections for the Parliament and State Legislature was laid down by the enactment.
Notwithstanding any such enactments, provisions of IPC still hold great importance as they are applicable not only to elections to Parliament or State Legislatures but any kind of elections such as- elections to district boards, municipalities, village panchayats and other local authorities. Therefore, the existence of RPA would not take away the power of ordinary criminal court with jurisdiction to try cases related to any offence contained in Section 171B to 171E. It is therefore concluded that both the enactments are complementary to each other.
For instance, a candidate can face disqualification under the RPA vide Section 8 if his act amounts to be an offence under Section 171E and 171F, hence handing him an additional charge alongside what he was already punished with under IPC.
Section 171A. “Candidate”, “Electoral right” defined
The Section provides a definition clause, which assists in qualifying an offence as pertinent to the election in the Sections which follows hereinafter.
It provides a definition for two terms which are ‘candidate’ and ‘electoral right’. The word ‘election’ in the Section is an election for the purpose to select members of any legislative, municipal or other public authority.
In a case of S Khader v. Munuswami, an election had been declared as void for the reason that the petitioner had spent an amount higher than the ceiling amount which was fixed at Rs.8000 which was prescribed then for the elections to the state legislatures. The contention was that the candidate had only disclosed a sum of Rs.7063 as his expenditure and had not revealed two amounts of Rs.500 each. It was argued by the petitioner that the amount of Rs.1000 was incurred before his official candidature was confirmed which was finalised after his official nomination and not before that, allowing him to not reveal this additional Rs.1000 as an expense.
The Supreme Court rejected the argument of the petitioner saying that the decision of candidature lies with the person himself and not with any act of bodies or persons accepting him as their candidate. Thus, from the moment a person communicates his intent to the outside world by way of conduct or declaration to contest an election, he becomes a candidate.
‘Electoral rights’ means the right to vote or refrain from voting and also the right of the person to contest or to not contest an election. Such right even includes the right to withdraw his candidature.
Section 171B. Bribery
Section 171B. Bribery:
“Whoever gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right; commits the offence of bribery:
Provided that a declaration of public policy or a promise of public action shall not be an offence under this section. Also if a person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification.
Further, if person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.”
Section 171E. Punishment for Bribery
Section 171E. Punishment for Bribery:
“Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; bribery by treating shall be punished with fine only.”
The word ‘treating’ has been defined in the explanation affixed with the Section which means any form of bribery where the person gratifies using a drink, entertainment, food or other provision.
Section 171B has defined bribery as an act of accepting or giving any kind of gratification, either as a form of reward or with a motive, to any person to persuading him to contest or refrain from contesting or to withdraw his candidature or to vote or to not vote in an election.
In the case of Mohan Singh v. Bhanwarlal, the Supreme Court provided what “gratification” means by borrowing observations from the explanation to Section 123 (1) (b) of the RPA Act. The court said that the act of gratifying is not limited to pecuniary means or gratification which can be estimated in monetary terms and it is inclusive of every form of entertainment and employment to recompense except any bona fide expenditure incurred in elections.
Thus the word ‘gratification’ may be taken to mean, “something valuable which is calculated to satisfy a person’s aim, object or desire, whether or not that thing is estimable in terms of money”. The term ‘gratification’ connotes to a form of gift which ensures the person receiving it with some material advantage.
There are two tests which have been devised to ascertain whether an act amounts to the offence of bribery or not.
First test checks if the act of gratifying the recipient has been done with an aim to meet the satisfaction of the person’s aim, desire or object.
The second test checks whether the gratification would amount to some value even in cases where it cannot be estimated in terms of money. Gratification is not required to be of value to its recipients but could also include anyone else.
Additionally, it is not necessary that the offer for gratification must be made by the candidate himself. It will be legitimate to book the candidate even in instances where his agent has offered the gratification. The Bombay High Court in a case ruled that if the members of the ruling political alliance make a statement to the Republican Party of India asking them to support the alliance in the Parliamentary elections, in return of a proposal that a representative of RPI will be elevated to the position of Deputy Chief Minister of State, will not amount to offering of gratification according Section 171B, IPC.
Section 171C. Undue Influence at elections
Section 171C. Undue Influence at elections:
“Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.
Without prejudice to the generality of the provisions of sub-section (1), whoever threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1).
Even 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 section.”
171F. Punishment for undue influence or personation at an election
171F. Punishment for undue influence or personation at an election:
“Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.”
Voluntary interference or attempted interference with the enjoyment of electoral rights of a person, for instance, the right of a person to vote or to contest election or to withdraw from it. The Section has attempted to cover within its ambit acts of intimidation and threatening. Sub-clause 2 provides for (i) candidate or a voter or any other person the candidate or the voter is interested in, if faces any threat of injury of any kind (ii) an act or attempt of inducing a candidate or voter with fear of spiritual censure or divine displeasure.
In brief, the undue influence as an offence with regards to elections comprises of any attempt at interference or voluntary interference with the electoral rights which must be allowed to be exercised freely. All illegal means of persuading a person, even using divine pleasure or threatening a person or property of interference with the liberty of a candidate or a voter in an election falls under the ambit of this Section. However, merely trying to influence a voter to make a certain choice of a candidate would not amount to undue influence or interference.
In the landmark case of Ram Dyal v. Sant Lal, the Supreme Court considered the issue of whether an act will amount to ‘undue influence’ only when it results into producing some actual effects. The court ruled that in Indian law, unlike the English Law, importance is given to the commission of the act and it is immaterial if any actual effect is produced as a result of it. In the impugned case the candidature of the appellant i.e. Ram Dyal had been set aside for the reason that he had approached some religious leaders to persuade them to issue religious edicts orally, which would forbid the community members to vote in favour of the respondent.
The court observed that the religious leaders were completely within the limits of law in exercising their right to influence the members of the community to vote in favour of the appellant. Nevertheless, in instances where the acts of religious leaders would imply that those members disobeying their mandate would have to face the divine displeasure or spiritual censure, then this case would fall in the ambit of Section 123(2) of the RPA and Section 171C, IPC. The Apex court upheld the judgment rendered by the lower court, saying that the election of the appellant was unlawful and void, as his acts amounted to undue influence.
In the case of Shiv Kirpal Singh v VV Giri, the election of VV Giri as the Indian president was challenged on the grounds of exercise of undue influence. One of the acts which were done in furtherance of this allegation was the circulation of a pamphlet which was anonymous. It was circulated in the Parliament’s central hall containing information of attacks on Sanjeeva Reddy, the rival candidate. Allegedly, the pamphlets had been created by the supporters of VV Giri with his consent and knowledge. Three issues had been enumerated hereunder:
- Can the pamphlet be considered as means under Section 171C to have created undue influence?
- Whether VV Giri would be made liable for the acts of circulation of such a pamphlet?
- Whether the election had been vitiated owing to the circulation to an extent that the mandate of the election will be set aside?
The court made certain important observations and which are:
- Undue influence can occur at any stage during the election and this span would encompass the time the voter would apply his mind to weigh the merits and demerits of the candidate till the voter has cast his vote.
- Even though the pamphlet was anonymous, it will face the vice of Sections 171C and Section 171G. The circulation of the pamphlet was done by an MP indicating his endorsement of the pamphlet.
The present case required the petitioners to prove that VV Giri was involved or bear the responsibility for the pamphlet and that the election had been majorly affected. The complainants failed to establish both the ingredients, therefore the Apex Court dismissed the petition.
Moreover, a promise to take public action or declaring of public policy, will not be undue influence according to Section 171C(3).
Section 171D. Personation at elections
Section 171D. Personation at elections:
“Whoever at an election applies for a voting paper on votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence of personation at an election.”
This Section covers offences by any person other than the candidate and his agents. Essentially, this offence deals with an act of a person who pretends to be someone who he is not in reality, which in common parlance means false pretence. The Section covers cases wherein a person pretends to impersonate and would not apply when the agent or the candidate no more claim to be voters themselves while marking a cross against any name.
It is necessary that the person committing the offence must have a guilty mind or corrupt motive. When a person’s name appears in two voter’s list at two polling stations and the person in good faith believes that he has two votes cannot be made guilty under this Section. Likewise, if a person has a legitimate belief that he can cast vote for his ill father, cannot be held guilty under this Section.
There is no necessity to establish a corrupt motive or men’s rea of a person who is not entitled to vote and is aware of it, casts a vote by applying a ballot paper under a false name. The corrupt act and men’s rea of such a person are apparent in his act.
In Malkhan Singh v. Emperor, a piece of paper which bore a certain number was produced by an applicant who approached the officer who was looking after the signature-slips. Name of the applicant appeared in the electoral roll corresponding to that number. The village officer claimed that the applicant’s name is different than what had appeared on the electoral roll. Eventually, the applicant admitted that it was not his name which appeared on the electoral roll. However, the applicant was not held guilty of impersonation by the court, which observed the following:
“In this case, the obtaining of the signature slip was an act which by itself, would not have amounted to an application for a voting paper. The applicant was frustrated in the act of obtaining the signature-slip. If he had not been frustrated, all that he would have committed was the obtaining of a signature-slip on false pretences. The completion of this act would not have amounted to completion of the act of applying for a voting paper.”
Section 171G.False statement in connection with an election
Section 171G.False statement in connection with an election:
“Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.”
The aforementioned Section is present to penalise a person who makes or publishes a statement which is false with respect to the personal character or a candidate’s conduct. Statement which is general in nature and only has a general imputation related to misconduct will not be covered under this Section. The ingredients which are required to be satisfied before a person can be made guilty under this Section are:
- The election must be impending.
- Publication or making of a statement by the accused.
- The statement must be in relation to the personal character or conduct of a candidate.
- Publication of the statement must be done with an intention to affect the election’s results.
- Accused knows that that the statement was false or he did not believe in its veracity.
Section 171H. Illegal payments in connection with an election
Section 171H. Illegal payments in connection with an election:
“Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees:
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.”
An unauthorized and unapproved expense incurred by a candidature is prevented by this Section to an extent that it is illegal in an election. The Section primarily seeks to curb the menace of corruption.
Section 171I. Failure to keep election accounts:
“Whoever being required by any law for the time being in force or any rule having the force of law to keep accounts of expenses incurred at or in connection with an election fails to keep such accounts shall be punished with fine which may extend to five hundred rupees.”
The Section basically necessitates the candidate to maintain accounts of the expenditure done in an election.
 Statement of Objects and Reasons Gazette of India Pt V 1920, s4
 Indian Penal Code 1860, s 21 (3)
 S Khader v Munuswami  AIR 775 (SC)
 SK Singh v VV Giri  AIR 2097 (SC)
  AIR 1366 (SC)
 S Iqbal v S Gurdas Singh  AIR 27(SC)
 Trilochan Singh v Kurnail Singh  AIR 416 (Punj)
 Deepak Ganpatrao Salunke v Govt of Maharashtra  Cr LJ 1224 (Bom)
 Baburao Patel v Dr Zakir Hussain  AIR 904(SC)
 M Anbalagam v State  Cr LJ 1179 (Mad)
  AIR SC 855
  2 SCC 567
 Parthasarthi v Ramachandra Rao  AIR 65(AP)
 Panta, Venkayya v Emperor AIR  246(Mad)
 State v Siddhannath Gangaram  Cr LJ 1327 (MP)
 State of Gujarat v Chandula Bhikalall  AIR 83(Guj)
  AIR 226(All)
 Kumara Nanda v Brij Mohan Lal Sharma  AIR 808(SC)
 Mohd Kadir Sheriff v Rahmatullah  AIR 230(Mad)