Electoral malpractice laws and guidelines in India

Why in news?

The Election Commission, on 10th April 2017, cancelled the by-election to the Dr. Radhakrishnan Nagar Assembly constituency in Chennai, based on evidence of large scale bribing of voters by certain political parties and candidates.

Holding the entire process of the election null and void, the EC said the by-election would be held by the Commission in due course when the vitiating effect created by the distribution of money and gift items to allure the electors gets removed with the passage of time and the atmosphere in the constituency becomes conducive to the holding of free and fair election.

What are the major electoral malpractice in India?

Use of black money for rallies, ads and votes. Between 4-15 crores is spent by many candidates in Lok Sabha elections whereas the EC limit is Rs 70 lakhs. Naturally, most money used is black money, undeclared to the EC.

Over-expenditure per constituency. India spends an amount comparable to American elections whereas India’s GDP is nowhere close to the American GDP.

Cash for votes. A large chunk of money spent by candidates is used to pay voters for votes in cash or liquor, or to pay the visitors of rallies for their time.

Misuse of religion or caste. Members of one or more communities are aroused to vote on religious or caste lines.

Hate speech. A severe form of misuse of religion or caste. Not many people are aware that such hate speech amount to the Violation of the RPA and may result in disqualification of the candidates who make such speeches.

Getting “apoliticals” to take political stand. Eminent persons not directly associated with politics are called upon to support one party or oppose an adversary.

False promises. Making promises with no intention or possibility of fulfilling them once in power.

Paid news. Paid news includes news tarnishing the image of an adversary and inordinately positive news about a crony politician.

Fake stings. A rather severe form of paid/biased news.

Online opinion rigging. Paid keyboard operators run by PR firms are deployed to shape public opinion online.

Rigging of opinion and exit polls. Rather than prediction, these polls are used to shape public opinion for or against certain political parties and politicians.

Dummy candidates. Several candidates of the same name as an adversary are fielded in order to cut his or her votes.

Dividing votes. Candidates of other parties are overtly or covertly supported in order to divide votes of the adversary.

Horse trading. Some parties have developed systematic methods for horse trading in which a few candidates of some other party are bought into one’s own party.

Dummy and duplicate voters in the EC’s electoral list. Lakhs of duplicate voters (register in multiple constituencies) were found in Delhi before the 2015 Assembly elections.

Malpractices in the registration of voters before the elections. New applicants weeks before an election may find their voter registration process failed and they could not get registered. In many cases, this is because the ruling administration does not like these new voters.

Violence. Against adversarial candidates and voters.

Misuse of the state machinery. The use of Police and other state machinery by the ruling party to harass adversarial candidates.

Rigging EVMs before or after the polling process. There is also a possibility that EVM can be tampered before the polling or before counting.

The relevant provisions of the Representation of The People Act,1951

Part VII of the Representation of The People Act,1951 deals with corrupt practices and electoral offences.

Under the provisions of the Act, the following constitute corrupt practices and electoral offences.

  1. Bribery, that is to say 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-
    • person to stand or not to stand as, or [to withdraw or not to withdraw] from being a candidate at an election, or
    • an elector to vote or refrain from voting at an election, or as a reward to a person for having so stood or not stood, or for [having withdrawn or not having withdrawn] his candidature; or an elector for having voted or refrained from voting:
    • the receipt of, or agreement to receive, any gratification, whether as a motive or a reward [Explanation – for the purposes of this clause the term “gratification” is not restricted to pecuniary gratification’s or gratification’s estimable in money and it includes all forms of entertainment and all forms of employment]
  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
  3. The appeal by a candidate or his agent or by any other person with the consent of a candidate 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
  4. 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
  5. The propagation of the practice or the commission of sati or this glorification
Model Code of Conduct

The Model Code of Conduct (MCC) is a set of guidelines issued by the Election Commission of India to regulate the conduct of political parties and their candidates in the run up to elections and is aimed at ensuring free and fair elections.

It is essentially “voluntary” and is not backed by any law.

This is the reason that sometimes it is called “Moral Code of Conduct” also. The Code was issued for the first time in 1971 before the 5th Lok Sabha elections.

Since then, it has been issued before every central and state election and revised from time to time.

The broad objectives of the code of conduct are to ensure a level playing field for all political parties, prevent conflicts between parties, and ensure law and order in the heat of election season. However, its primary purpose is to ensure that the ruling party does not misuse or use to its advantage the government machinery for its election campaign purpose.

Though the Code doesn’t have any statutory basis, it has an indisputable legitimacy and parties across the political spectrum have generally adhered to its letter and spirit. This can be explained on the basis of modus operandi of MCC.

The Code of Conduct comes into force immediately after the elections are announced by the EC.

It applies to political parties, their candidates and polling agents, the government in power and all government employees. It prevents the ruling party from using official machinery for electioneering work.

Regarding the restricting guidelines on campaigning, political parties are allowed to criticize opponents for their failure to do work or fulfil promises made to the electorate, but are not allowed to criticize on the basis of any aspect of private life not connected with the public activities.

Besides, the Model Code of Conduct strictly prohibits parties and candidates from making any appeals to caste or communal feelings for securing votes.

Even though the Code of Conduct does not have any statutory basis, the EC has the power to disqualify a candidate if he/she violates the code.