Explainer : Booth Capturing During Elections As 'Corrupt Practice' Under RP Act

As India entered the first phase of Lok Sabha Elections 2024 on April 19, there were reports about incidents of booth capturing and destruction of Electronic Voting Machines (EVMs) in certain places.In this backdrop, the offence of booth capturing, the penalties that it attracts and the observations made by courts on the subject assume significance. This article, accordingly, attempts to provide a deeper understanding of the 'corrupt practice' that is booth capturing and the consequences it entails.Booth capturing : A corrupt practiceRepresentation of the People Act, 1951 ("RPA") is the primary legislation that deals with the conduct of elections to Parliament and/or State Assemblies in India. Besides providing the qualification and disqualification criteria for membership to the Houses, it stipulates what shall constitute "corrupt practices" for the purposes of elections.The Act is divided into 11 parts, of which, Part VII deals with Corrupt Practices and Electoral Offences. Section 123 of the RPA, in particular, lays down what is deemed to be a "corrupt practice" for the purposes of elections to Parliament/State Assemblies.As per sub-section (8) of this Section 123, booth capturing by a candidate, his agent or other person is a "corrupt practice". The term "booth capturing" (as explained under Section 135A of RPA) includes, but is not limited to -(a) seizure of a polling station by any person making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections;(b) taking possession of a polling station by any person, and allowing only his own supporters to exercise his right to vote and prevent others from free exercise of their right to vote;(c) coercing/intimidating/threatening any elector and preventing him from going to the polling station to cast his vote;(d) seizure of a place for counting of votes by any person, making counting authorities surrender the ballot papers or voting machines and doing of anything which affects the orderly counting of votes;(e) doing/aiding/conniving at any of the aforesaid activities by any person in government service in furtherance of prospects of the election of a candidate.Booth capturing : An offenceUnder Section 135A of the RPA, booth capturing is an offence, which entails punishment of imprisonment for a term of 1-3 years alongwith fine. If the offence is committed by a government servant, the punishment is stricter - that is, imprisonment for 3-5 years alongwith fine.The offence is cognizable in nature, meaning, an arrest can be made without warrant.Disqualification for membership of Parliament/State Legislatures on account of booth capturingUnder Section 8 of the RPA, any person who is convicted of the offence of booth capturing (under Section 135A) shall be disqualified of membership to the Parliament and State Assemblies/Councils, if he is sentenced to -(i) only fine, for a period of 6 years from the date of conviction;(ii) imprisonment, from the date of such conviction until expiry of a period of 6 years since his release.The question whether a person shall be disqualified upon being found guilty, and if so, for what period, is determined by the President. The President is bound to consult the EC in this regard and shall act based on the opinion received (Ref: Section 8A of RPA).Adjournment of poll or countermanding of election when booth capturing takes placeAs per Section 58A of RPA, if booth capturing takes place at a polling station or at a place fixed for the poll/counting of votes, in such a manner that result cannot be ascertained, the concerned Returning Officer shall immediately report the matter to the Election Commission (EC).On receiving such a report from a Returning Officer, and after taking all material circumstances into account, the EC has two options -(i) Either it can declare the poll void and appoint a day (as well as fixed hours) for fresh poll, which shall be notified in manner deemed fit, or(ii) If it is satisfied that in view of large number of polling stations/counting places being captured, the result of the election is likely to be affected, it can countermand the election in the relevant constituency.Voiding of election due to corrupt practices (including booth capturing)Section 100 of RPA lists grounds on which an election can be declared void. In terms of this provision, if a High Court is of the opinion that the result of an election, insofar as it relates to a returned candidate, has been materially affected by any corrupt practice committed in his interest by an agent other than election agent, the election of the returned candidate shall be declared void.Be that as it may, the High Court may decide that the election of the returned candidate is not void if, in its opinion -(i) no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and...

Explainer : Booth Capturing During Elections As 'Corrupt Practice' Under RP Act

Debby Jain

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