Know the Law

Explained : Procedure To Challenge Election Result

P K Varghese & E C Bineesh
19 April 2019 6:22 AM GMT
Explained : Procedure To Challenge Election Result
"Eternal vigilance is the price of liberty"
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Recent media reports reveal a disturbing rise in "corrupt practices" in the run-up to polls to 17th Lok Sabha. The Election Commission has censured several prominent political leaders for hate speech, communal appeals and derogatory remarks during campaign. There are reports of use of cash-for-votes, and the election in Vellore constituency has been cancelled after the ECI detected use of money to bribe voters.

It is highly unfortunate that elections, which are to be performed like a solemn ritual in a democracy, are being carried out in such a vitiated fashion.

Conscientious citizens will definitely feel pained at such developments. But mere moral outrage will not do any good, unless the outrage is channelized into action through law.

The law arms a citizen to challenge an election verdict, if it has been secured through corrupt practices.

Here is an attempt to briefly explain the law relating to corrupt practices in election.

On the ground of corrupt practices, a candidate or a voter can file election petition before the Election Tribunal. A litigant should bear in mind that, contemporary records are essential parts of an election petition. Whenever a corrupt practice comes to notice, that should be represented before Election Commission in writing or to the Police Officer concerned. Collection of records, documents etc exposing corrupt electoral practices are also  valuable political activities.

The procedure for filing election petition, and also grounds of challenge are explained as below.

Election Petition

S.80 of Representation of the People Act, 1951 mentions about election petition. It says  "No person shall be called in question except by an election petition presented in accordance with the provision of this part".

Election petition under the Representation of the People At, 1951 is adjudicated by High Court. Election petition may be presented one or more of the grounds by any candidate or any elector, within 45 days of declaration of result.

Contents of the petition are described in S.83 of the Act.

(a) Concise statement of material facts

(b) Full particulars of any corrupt practices that the petitioner alleges

(c) Signature of the petitioner

Grounds for declaring election to be void ( S.100 of the Act) :

(a). A returned candidate was not qualified.

(b) Any corrupt practices has been committed

(c). Any nomination has been improperly rejected.

(d). The result of the election has been materially affected

(i). by improper acceptance of any nomination

(ii). by any corrupt practices committed

(iii). by the improper reception, refusal, rejection of any vote.

(iv). By any non compliance with the provisions of Constitution or this Act or of any Rules or Order made under this Act.

What are "Corrupt Practices"?

"Corrupt Practices" are defined Under Section 123 of the Act. Before discussing about corrupt practice, it may be noted that for attacking an election of a returned candidate under Representation of the People Act, the 'corrupt practice' need not be done by the candidate himself. The language used in the Section is very relevant. It starts with :

"by a candidate or his agent or by any other person with the consent of the candidate or his election agent".

Therefore, even though the corrupt practice is not committed by the candidate himself, if it was committed with the consent and connivance of the candidate, the candidate is liable.

The main "corrupt practices: dealt under Section 123 are :

S.123(1) Bribery

(A) Any gift, offer or promise

(a) to stand or not to stand or to withdraw or not withdraw from being a candidate.

( b) an elector to vote or refrain from voting at an election

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

S.123(2) : Undue Influence

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. 

Any person who :

(i) threatens any candidate or any elector or any person in any whom a candidate or n elector is interested with injury to any kind including social ostracism and excommunication or expulsion from any caste or community.or

(ii). Induces or attempt to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will rendered an object of divine pleasure or spiritual censure.

shall be deemed to interfere with the free exercise electoral right of such candidate.

S.123(3) : Appeal to votes on basis of religion, race, caste, community or language.

The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election vote or refrain from voting for any person on the ground of his religion, race , caste , community or language or the use of appeal to religious symbol, national symbol, prejudicially affecting the election of any candidate.

S.123(3A) : Promotion of hatred and entimity

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.

S.123(4) Personal vilification

 Publication of any statement which is false in relation to the personal character, or conduct of any candidate.

S.123(5) :. Hiring or procuring any vehicle for the free conveyance of elector.

S.123(6). Expenditure in contravention of S.77 of the Act ( it is limited).

S.123(7). Obtaining any assistance for the furtherance of the prospect of that candidates election from government official.

S.123(8). Booth capturing.

It is true that, the materials submitted above are not conclusive, but, indicative. To help our democracy thrive, it is necessary that every instance of corrupt practice is called out and dealt with an iron hand.

As the saying goes "eternal vigilance is the price of liberty"

So, as responsible citizens, it is our duty to be vigilant, and to do our bit to ensure that candidates act in accordance with constitutional morality.

(Authors are Advocates practising in the High Court of Kerala)


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