A study on the freedom and fairness of the Indian elections

Written by Astha Priya¹

Abstract

Introduction

India is a country which is defined by its diversity. People of various religion, race, caste, descent and language live here with a feeling of cooperation and fraternity thus forming one of the largest democracies in the world. ‘People’ lies in the heart of Indian democracy and therefore, their participation is part and parcel to the efficient working of this democratic set-up. It is necessary to provide all the people, an equal opportunity to take part in the working of democracy and in order to provide them with this opportunity, the system of representative government has been adopted.

‘Representative government’ is an essence of Indian democracy where people choose their government. The government acts as a representative of the people who choose them. The process through which people choose their representatives is called an ‘election’. The term ‘election’ has been defined under Section 2(d) of The Representation of People Act, 1951 (for brevity, 1951 Act) as : ‘an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State’.

The Preamble of the Constitution of India declares ‘we, the people of India’ as sovereign, as we have given this Constitution to ourselves. Therefore, Will of the people is supreme in Indian democracy. People express their ‘will’ in form of their votes in the election. Right to vote is a right granted by the Indian Constitution to every citizen of India, who is or is above 18 years of age[1].  

This right must be exercised freely and fairly and in order to ensure this, Article 324-329 have been inserted in the Indian Constitution. If a candidate in the election, resort to any of the corrupt practices or commits any kind of electoral offence, it leads to dilution of the freedom and fairness of the electoral process. Therefore, the Constitution of India had established an institution by the name of ‘Election Commission’ and has shouldered it with the responsibility to maintain the freedom and fairness of the electoral process by exercising the powers vested in it by Article 324 of the Constitution.

The Parliament has laid down two laws which plays a vital role when it comes to the conduct of ‘free and fair’ elections  – The Representation of  the People Act, 1950 (for brevity, 1950 Act) and The representation of the People Act, 1951 (for brevity,  1951). Both of these laws are complementary to each other.

1950 Act provides for the allocation and delimitation of seats of the House of People, Legislative Assemblies, and Legislative Councils, appointment of various officers (such as Chief Electoral Officers, District election officers, electoral registration officers, assistant electoral registration officers) and  preparation of electoral rolls.

1951 Act provides for the conduct Lok Sabha elections, and Legislature of each States, qualification and disqualification of the members, election petition, election appeal, and punishment for corrupt practices and electoral offences committed during election. It can be noted here that 1950 Act deals with the phase before the election process is set into motion and 1951 Act deals with the phase after the declaration of elections and other matters relating to election process and election results.  

If we take a look on the data of National Crime Records Bureau (NCRB), it can be observed that in 2018, 737 cases were registered under the 1951 Act. This figure was 686 in 2019, 74 in 2020 and 191 in 2021, which again came down to 168 in 2022.[2]  Even in the recent elections for the House of people, numerous instances of corrupt practices taking place during elections came into light.

K Sudhakar, a candidate from Chikkaballapur constituency was booked for  bribery and undue influence on voters.[3] Various other candidates were also booked for soliciting votes on religious grounds. Therefore, the past years’ statistics and the instances of recent Lok Sabha elections points towards the inefficiency of the existing system. The time calls for an action to improvise and strengthen the elections laws and existing system related to conduct of election.

Research Problem

The main issue which this paper tends to address here is the dilution of the principle of ‘free and fair elections’. Whether Indian elections can be categorised as truly ‘free and fair’ or not?

Objective

The objectives of the research are as follows:

1. To bring into light the importance of free and fair election in Indian democracy.
2. To understand the factors which act as an impediment in ensuring free and fair elections in India.
3. To provide possible suggestions for strengthening the existing system related to electoral process in India.

Hypothesis

It seems to the author that elections in India cannot be truly categorized as free and fair.

Research methodology

Endeavour has been made to address the research problem by using analytical research methodology.

Meaning of free and fair elections

The literal meaning of word ‘free’ is ‘freedom to act according to own wishes and choices’ and the word ‘fair’ means ‘free from biasness or any form of discrimination’. Therefore, free and fair election means an election where people can vote the candidate of their choice and every citizen shall have this right to choose their representatives without any discrimination on any ground. Every citizen in India shall have the right to vote in accordance with the system of adult suffrage as provided under Article 326.

In the case of Mohinder Singh Gill v. Chief Election Commissioner[4], the Supreme Court stated that the “fairness does import an obligation to see that no wrongdoer candidate benefits by his own wrong.” Again in the landmark judgement of Keshavananda Bharati v. State of Kerala[5], it was observed by the Court that free and fair elections implies that no candidate or any agent of such candidate should resort to unfair means or malpractices, which compromise with the process of free and fair election.  

Commission of any kind of corrupt practices or electoral offences is detrimental to the process of free and fair election in India because such practices influence the choice of people. But, it is not possible to ensure free and fair elections unless there exists an effective system established by the law for resolution of the disputes arising out of the elections. There is also a possibility that even if the candidate or his agent has not undertaken any kind of corrupt practice, the election may not remain free and fair. For instance, due to improper rejection of ballot paper, or due to improper rejection of nomination paper[6] .

Therefore, in a democratic system, there shall be a legal machinery to resolve such election disputes. Without legal sanctions, the laws intending to curtail the candidates from taking recourse of corrupt practices or malpractices would remain a toothless tiger. Therefore,  ‘free and fair elections’  has two facets imbibed in it- first, that people be allowed to choose their representative and express their will accordingly without being subjected to any discrimination, coercion, undue influence or fraud and secondly, that there should be a dispute resolution mechanism for resolving the election disputes by a neutral authority.  

Article 325 and 326 of the Constitution of India are the manifestation of the first facet of ‘free and fair election’, that is free expression of the ‘will’ by the people. Article 325 of the Constitution of India provides that  no person shall be excluded from an electoral roll prepared for the elections to each House of Parliament and State Legislature, only on the grounds of religion, race, caste or sex. It aims to ensure equality among the electors. No person shall be denied the opportunity to take part in the electoral process on the abovementioned grounds.

Article 326  further makes right to vote a constitutional right.  It provides that the ‘election to the House of people and State Legislative Assembly of every state shall be on the basis of Adult suffrage, that is to say, every person who is a citizen of India and who is not less than 18 years of age and is not disqualified under this Constitution or any law made by the appropriate Legislature on ground of non-residence, unsoundness of mind, crime, or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election’.

Therefore, every Indian citizen who is or above 18 years is entitled to vote, unless he is subject to any of the abovementioned disqualification.

It is worth noting here that denying right to vote to such disqualified citizens does not amount to discrimination,  as such people would not be able exercise this right in free and fair manner. Rather, if such citizens would be permitted to vote in the elections, it would vitiate the process of free and fair election. For instance, a citizen who is of unsound mind, is unable to understand the ‘nature and consequences’ of his actions and cannot be expected to take rational decisions.

Also a citizen who himself is involved in a crime or corrupt or illegal practice, cannot be expected to choose a representative, unaffected by the bias mindset. There is a high probability that his choice would be affected by prejudicial factors. So, permitting such persons to vote, would in itself be detrimental to the free and fair elections. Therefore, on reading Article 325 and Article 326 together, it can be concluded that the Constitution has seen to it that every person eligible to vote must not be denied to do so merely of the grounds of religion, race, caste or sex and should not be denied an opportunity to contribute in the Indian democracy.

The second facet of ‘free and fair election’ necessitates the existence of an independent and impartial machinery to resolve the disputes arising out of election process. This facet of free and fair election has been reiterated by Supreme Court in plethora of judgements including in Shri Kihota Hollohan v. Mr. Zaichillu and Others[7]  and in Indira Gandhi v. Raj Narain[8]. All the democratic countries around the globe provide for such independent authority, for instance, in United Kingdom, disputes arising out of elections are determined by two Judges by rotation and according to the Representation of People Act, 1949, in United States, such authority lies in the Houses itself that is Senate and House of Representatives.

In Indian democracy, this power has been vested in the Courts of law. However, it must be noted here that in a democratic system, the disputes arising out of the elections need not necessarily be settled by the Courts of law.  The authority in which such power is vested may vary from one democracy to other, depending on their democratic environment and probability of partiality. In India, such powers have been vested in the Court because it is a part of Judicial system of India and are expected to act, influenced by the external factors such as politics and executive government. Also, they are considered as the guardian of  Indian Constitution.

Article 329(2) of the Constitution of India clearly states that ‘no election to either House of Parliament or to the House or either House of Legislature can be called in question except by election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature’. The law enacted by the Parliament for this purpose is the Representation of People Act, 1951 (for brevity, 1951 Act) and Section 80 A of the Act provides that the High Court shall have the jurisdiction to try election petitions.

Chapter II of the 1951 Act deals with presentation of election petition to the High Court and Chapter III of the Act deals with the trial of election petition. The election of a returned candidate (elected candidate) can be challenged by filing an election petition within forty five days from the date of declaration of result of the election, on any of the grounds enumerated under Section 100 and 101.

The High Court has the authority, either declare the election of the returned candidate as void or declare any other candidate to be elected. This provision is heart and core of election laws which gives a reasonable opportunity, both to the electors and other candidates to call in question,  election of any Return candidate, where there arises a doubt on the freedom and fairness of the electoral process.

 Free and fair election – basic structure of the Indian Constitution

“Free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion.”

Constitution of India is the touchstone of Indian democracy. The Preamble, which is considered as the ‘heart and soul’ of the Constitution of India, declares India to be a democratic country. In the landmark case of Keshavananda Bharati v.  State of Kerala[9], the Supreme Court propounded the basic structure doctrine and held that, there are certain features of the Constitution which are fundamental in nature and therefore, cannot be amended by the Parliament.

‘Democracy’ has been declared as the basic structure of the Constitution. Free and fair election is sacrosanct to the Indian democracy. So, in the case of People’s Union for Civil Liberties and Another v. Union of India and Another^[10] (hereinafter, PUCL’s Case), the principle of free and fair election has been recognised as a basic structure of the Constitution of India, in the case ofin the following terms:

In this case, the Hon’ble Apex Court remarked that to keep alive the democracy of India, it is essential that the best available man should be chosen by the people as their representatives and this goal can only be attained by  ‘choosing men of high moral and ethical values, who win the elections on a positive vote’. Therefore, choice of people is supreme in the Indian democracy. However, sadly, the people’s choice are less reflected in the results of the election due to several illegal and corrupt practices which are resorted to by the candidates during the elections to win the election. Such practices dilutes the principle of free and fair elections and ultimately the democratic system of India.

Election in India- free and fair?

Whether an electoral process of a Country is free and fair cannot be decided on the basis of a single parameter. Various factors are to be taken into account while determining the answer to this question. There are myriad of factors which simultaneously play a vital role in maintaining the purity of the election. Some of the factors which may be considered while determining the answer to this very question ‘whether election in India is still free and fair?’ are as follows:

Efficiency of election Commission

Election Commission is an independent Constitutional body which is entrusted with the responsibility to conduct free and fair elections in the Country. Article 324(1) of the Constitution of India vests the Election Commission with the reservoir of powers[11], in the following words- “The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all the elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-president held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)”.

However, this power of election commission under Article 324(1) has been challenged before the Court of law in a number of cases, including in the case Mohinder Singh Gill  and Another v. The Chief Commissioner, New Delhi and Others[12], NP Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem District and four Others[13], AC Jose v. Sivam Pillai[14] . In these cases, the Court has discussed the scope of power granted to Election Commission under Article 324.

The Supreme Court has also resolved the conflict between Article 324 and Article 329, and held that these two provisions must be read harmoniously. Article 329 provides that Parliament has power to make laws with respect to elections to Legislatures. If the Parliament has already formulated such laws or Rules for the conduct of elections, the Election Commission must act in accordance with those rules and must not act in contravention to such laws or Rules.

However, those matters which have not been covered by any law or Rules framed by the Parliament or such laws or Rules are silent with respect to those matters, Election Commission has the power to  act upon such matters. However, powers of Election Commission under Article 324 are not unbridled and uncontrolled. The Election Commission can take any decision which it deems necessary for the purpose of free and fair conduct of elections. But, such decision must not be arbitrary and it must act in accordance with the provisions of the Constitution and any law or Rules made by the Parliament in that behalf.

Looking upon the history of Article 324, it can be found that the founding fathers of the Constitution of India intended to make Election Commission of India a body independent of executive  government so that the it can act as a machinery to maintain the purity and fairness of the election in India.

The Election Commission plays a vital role in maintaining the fairness of the election in India. So, it must be free from any external influences, so that it can maintain the trust and confidence of people in the democracy of India as well as in the institution itself. Therefore, the appointment of Election Commissioners must be free from external influences and must be a neutral authority. This view has been reiterated by the Supreme Court in catena of judgements (for instance in cases of TN Seshan Chief Election Commissioner of India etc. v. Union of India and Ors.[15] and Anoop Baranwal v. Union of India[16].

Before the Judgement delivered by the Supreme Court in Anoop Baranwal’s case, the appointment of Chief Election Commissioners and Election Commissioners were made by the President acting on the advice of Prime Minister.[17]  However, this process of appointment was challenged in the case of Anoop Baranwal, mainly on the grounds that the process is unconstitutional in nature and provides an upper hand to the executive government in the appointment, which is further detrimental to the independence and fairness of the Election commissioners so appointed.

The five  Judges bench of the Supreme Court (KM Joseph J., Ajay Rastogi J., Anirudha Bose J., Hrishikesh Roy J. and CT Ravikumar J.) held in this case that until the Parliament enacts a law to that effect, the Chief Election Commissioner and the Election Commissioners shall be appointed by the President on recommendation and advise of a committee comprised of the Prime Minister, the Leader of Opposition in Parliament, and the Chief Justice of India.

It can be noted here that the committee also includes Chief Justice of India as one of the member. Chief Justice of India is a person who has nothing to do with the politics and being the head of the Judicial system, is under an obligation to safeguard and protect the principles of Indian Constitution. This arrangement was drawn out with the objective to maintain the independence of Election Commissioners from influence of executive government. However, this arrangement was made until the Parliament enact a legislation for the appointments of Election Commissioners.

Consequent to this Judgement of the Apex Court, the Parliament enacted The Chief Commissioner and other Election Commissioners (Appointment, Conditions of service and Term of Office) Act, 2023 (hereinafter referred to as 2023 Act) which provides for the appointment of  Chief Election Commissioners and other Election Commissioners. But, the Parliament by enacting 2023 Act has done away with the Judgement of Court in Anoop Branwal’s case by dropping Chief Justice of India from the Selection Panel.

The Selection Panel constituted as per Section 7(1) of the 2023 Act shall consist of  Prime Minister, Union Minister and Leader of Opposition (LoP). It is explicit from this provision that the Panel is dominated by Executive Government (Union Minister and Prime Minister). This provision of the 2023 Act is a serious attack on the independence of the members of the Election Commission and therefore, the whole institution. It will definitely compromise with the principle of free and fair elections.

There will be a high probability of biasness and unfairness in the election process. It would further effect the efficiency of the Election Commission. Therefore, the 2023 Act has been challenged in the case of Jaya Thakur v. Union Of India[18]. But the Supreme Court refused to impose interim stay on the  Act due to coming 2024 elections. However, the final decision is still awaited.

There have been instances in the past where the efficiency of Election Commission in conducting the free and fair election was called in question and the functioning of the Election Commission was also criticized. The Lok Sabha elections of 2019 were referred to as ‘least free and fair elections’ due to presence of various discrepancies in the electoral process. There were 64 signatories to the letter, out of which 60 were retired civil servants. The electoral process was criticized on the ground of being biased to a single political party, that is the political party of the government in power.[19] These kind of anomalies in the electoral process shake the faith of people in the institution itself.

Therefore, from above arguments, it can be concluded that there is a need to maintain the independence of the Election commission, in order to maintain the purity of the electoral process and to ensure that the election which is an identity of Indian democracy remains free and fair. It is the high time, when the Election Commission should work to regain the confidence and faith of people in this Constitutional body.

Criminalisation of politics:

The Election Commission of India had coined a slogan that ‘no law breaker should become a law maker’. Parliament is a temple of democracy where laws are enacted to safeguard the rights of the people of the Country and such place must not be defiled by those who themselves are the violators of the laws. The Parliament is a place which must be occupied by persons of high integrity.

But, unfortunately there has been criminalisation of the politics of India. The recent data of Association of Democratic Reforms (ADR) based on the analysis of 2024 elections reveals that there has been 55 per cent increase in the figures of winning candidates with declared criminal cases in 2024 since 2019.

In 2024 Lok Sabha elections, out of 543 winning candidates, 251 candidates are have declared criminal cases against themselves. However, this figure was 233 (out of 539 winning candidates) in 2019, 185 (out of 542 winning candidates) in 2014, 162 (out of 543 winning candidates) in 2009. The data also reveals that in 2024 Lok Sabha elections, out of 170 winning candidates have declared serious criminal charges against them (such as rape, murder, attempt to murder, kidnapping, crime against women, etc.). There has been 124 per cent increase in number of Members of the Parliament with declared serious criminal cases since 2009.[20]

This data shows a clear picture of the criminalisation of politics. Entrance of such members in the election process is a mockery of this largest fest of democracy. Such candidates with criminal antecedents are more likely to take recourse of corrupt practices and malpractices during elections, thus effecting the freedom and fairness of the elections.

For instance, in a recent development, the politics of State of Jharkhand has turned topsy turvy when the present Chief Minister of the State Hemant Soren, regained the confidence of the Legislative Assembly after being released on bail in a money laundering case. Similar is the state of politics in the National Capital of Delhi, where the Chief Minister Arvind Kejriwal is under the custody of Central Bureau of Investigation (CBI), after being released on bail in a case related to money laundering. He has also refused to step down from the office of Chief Minister. This indicates towards the lamentable state of affairs of Indian politics as well as Indian democracy.

Those who are involved in the criminal activities are likely to influence the election process in their favour. These people would not hesitate in adopting any illegal means to gain the power in the politics. But, the main problem here is that most of the voters in India come from rural India. They are either not aware of criminal antecedents of the candidates or they do not have alternatives because no one is there with the clean hands.

Therefore, in the case of Union of India v. Association for Democratic reforms[21] and in People’s Union for Civil liberties v. union of India[22], the Supreme Court held that the voters have right to know the criminal antecedents of the candidates and it is impliedly included in right to freedom of speech and expression [Article 19(1)(a)]. The Election Commission was directed to procure affidavit from the candidates regarding their criminal antecedents. However, there has been a number of instances where the candidates file false affidavit declaring that they have never been involved in any kind of criminal activities.

Section 8 of the 1951 Act provides for disqualification for certain offences. The object of this section is to prevent criminalisation of politics[23]. Section 8(4) permitted three month time to the convicted members for appeal against the conviction and sentencing. But, the provision was rightly struck down by the Supreme Court in the case of Lily Thomas v. Union of India[24] .

Therefore, as per the current law, a person convicted for  any of the offences enumerated in clause 1, 2 or 3, he shall be disqualified from the date of conviction and for further six years after release (in case he has been punished with imprisonment) and if he is punished only with fine (for offences enumerated under clause 1), he shall be disqualified for six years from the date of conviction.

However, the disqualification is applicable when the candidate is convicted for any offence and mere framing of charges or accusation would not lead to disqualification. This point was raised before the Supreme Court in the case of Public Interest Foundation v. Union of India. In this case, Court asked  the Parliament to make a law which can curb the candidates accused of the serious crimes from entering into politics. However, till now no such law has been enacted by Parliament.

Therefore, it is a high time when the criminalisation of the politics should be stopped, as it dilutes the principle of free and fair election.

Corrupt practices and electoral offences

Corrupt practices and electoral offences committed by the candidates are detrimental to the free and fair elections because the mens rea behind these activities is to influence the voters to vote in their favour. The relevant legal provisions aimed at curbing such malpractices during elections are as follows:

The Representation of the People Act, 1951

Section 2(c) of the Representation of People’s Act, 1951 (for brevity, Act of 1951), defines corrupt practices as ‘the practices which have been specified under Section 123 of the Act of 1951’. Part VII of the said Act deals with Corrupt practices and electoral offences. Therefore, Section 123 of the Act of 1951 enumerates certain acts as corrupt practices. Such practices can broadly be divided into following heads:

1. Bribery- It includes gifts, offer or promise by a candidate or his agent to induce another candidate to stand in the election or to withdraw his candidature, or to induce an elector to vote or to refrain from voting in the election.
2. Undue influence- Undue influence means intervention by a candidate or his agent with exercise of free electoral rights.
3. Appealing for vote in name of religion, race, caste, etc.- Appealing for the vote in the name of religion, race, caste, community or language or using religious or national symbols for the purpose is also a corrupt practice. In the case of Indira Gandhi v. Raj Narain, the Apex Court held that Cow and Calf is not a religious symbol within the meaning of Section 123(3), except the context in which the pictures of such animals are used in purely religious context.
4. Promotion of feeling of enmity- Promotion of feeling of enmity and hatred between different classes of the citizens of India on the ground of religion, race, caste, community, etc. is also a corrupt practice.
5. Propagation of the practice of sati or its glorification for prejudicially affecting the election of a candidate.
6. Publication of false statement- Publication of false statement by the candidate pertaining to personal character or conduct of any candidate or in relation to the candidature, or withdrawal.
7. Providing free conveyance facilities to the electors to or from any polling station.
8. Incurring or authorising expenditure in contravention of section 77.
9. Obtaining or attempting to obtain assistance of gazetted officers, stipendiary Judges or Magistrates, members of armed forces of the Union, members of police forces, excise officers, revenue officers, or persons who are in the government service, as prescribed,  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 for the purpose of election.
10. Booth capturing

If a candidate or his agent or any other person acting with the consent of such candidate or his agent resorts to any of the aforementioned practices, such candidate would be liable to be disqualified as per the Act of 1951.

In India, there are innumerable instances where candidates are involved in corrupt practices and many of the times, their election remain unchallenged. The election of a returning candidate can be challenged by filing election petition in the concerned High Court and the High Court while deciding the petition may also make an order recording a finding whether the corrupt practice (s) alleged in the petition has been proved or not and names of all the persons involved in it.  

If the Court finds a person guilty for the commission of any of the corrupt practices, the case shall be submitted to the President by an Authority prescribed by the Central Government in that behalf, within three months from the date the order takes effect, to decide that whether such person should be disqualified for becoming the member of the Parliament or State Legislature and the time period of disqualification.

The President, then decides the question as to disqualification, after procuring the opinion of the Election Commission. However, the Act of 1951 also provides for the maximum period for which the person may be disqualified and it must not exceed six years from the date of the order passed by the High Court under Section 99 of the Act.

The Act further provides for the punishment if any person promotes hatred or enmity or attempts to do so in the name of religion, race, caste community or language between different classes of citizens. Such person shall be punished with imprisonment for a term which may extend to or fine or with fine. 

Penalties have been provided for the officers at elections, etc.

1) for persuading or dissuading any voter to vote in an election or doing any act to influence the prospects of the election;

2)for persons committing any kind of misconduct or disorderly conduct in or near polling stations (Sections 130, 131 and 132),

3) for elector who acts in non-compliance with procedure of  (Section 132A),

4) government officials who acts as an election agent, polling agent, or counting agent for a candidate, persons going near the polling stations armed with the arms, except those who are responsible for maintaining peace and order in the polling stations (Section 134B),

5) persons who removes, attempts to remove or abets removal of ballot paper (Section 135), persons committing offence of booth capturing (Section 135A), etc.

Various issues pertaining to corrupt practices has been addressed by the Apex Court in the case of Indira Gandhi v. Raj Narain[25]. In this case, Mrs. Indira Gandhi was alleged to have committed corrupt practices under Section 123(7) of the 1951 Act. Allahabad High Court declared her election from Rae Baraeli Constituency as void. Parliament passed Election Laws (Amendment) Act, 1975 and 39th Constitutional (Amendment) Act, 1975, the consequence of which was to validate the election of Indira Gandhi. 

Beg J. observed in this case that the allegations of corrupt practices should be treated as a criminal charge. It means that if the party sought to prove the allegation of corrupt practice, then he must show that the circumstances form a cogent chain of evidence. He must prove that the alleged actions were accompanied with the mens rea (that is guilty mind). However, in this case the election of Indira Gandhi was held to be valid and all the allegations of corrupt practices against her were dismissed by the Court.

Indian Penal Code, 1860 and Bharatiya Nyaya Sanhita, 2023

Chapter IX of the Bharatiya Nyaya Sanhita, 2023 (hereinafter, BNS) provides for the offences relating to elections (Corresponding to Chapter IX A of Indian Penal Code, 1860). Section 169[26]  of the BNS defines ‘candidate’ as a person who has been nominated as a candidate at any election. Clause (b) to Section 169 defines electoral right as the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. Section 170 to Section 177  deals with the offences and punishments for such offences. These provisions can be categorised under following heads:

1. Bribery (Section 170 and Section 173 of BNS)- Section 170[27] provides for the offence of bribery relating to the electoral right. It means giving, accepting, offering, agreeing to give, obtaining or agreeing to accept gratification for himself or for any other person for inducing any person to exercise the electoral right. Section 173[28] provides punishment for bribery. Any person committing the offence of bribery shall be punished with imprisonment of either description for a term which may extend to 1 year or with fine or both. However, a person involved in bribery only by treating (i.e. where gratification consists in food, drink, entertainment or provision) shall be punished with fine only.
2. Undue influence at elections (Section 171, BNS)[29]–  A person is said to have committed the offence of undue influence at elections if he voluntarily interferes or attempts to interfere with the free exercise of any electoral rights. Even if he threatens the candidate or voter or any person in whom  such candidate or voter is interested,  with injury of any kind, or induces or attempts to induce such persons to believe that he will become an object of divine displeasure or religious censure also commits the offence of undue influence at elections. This offence is punishable under Section 174[30] of BNS with imprisonment of either description which may extend up to 1 year or with fine or both.
3. Personation at elections (Section 172 and Section 174)- Any person who applies for voting paper on votes either in the name of other person, or in a fictitious name, or applied for same in his own name having already voted, commits an offence under Section 172[31] and is punishable under Section174[32] of BNS with imprisonment of either description which may extend up to 1 year or with fine or both.
4. False statement in connection with the elections (Section 175)[33]– Whoever makes or publishes any false statement in relation to personal character or conduct of any candidate with the intent to effect the result of election shall be punished with fine.
5. Illegal payments in connection with an election (Section 176)[34]– Any person who incurs expenses for holding any public meeting or upon any advertisement or, circular or publication or in any other way whatsoever, without authorisation of the candidate for procuring election of such candidate shall be punished with fine which may extend up to 10,000 rupees.
6. Failure to keep election accounts (Section 177, BNS)[35]–  Whoever being under an obligation to keep accounts relating to the expenses incurred in relation to election fails to keep such account commits an offence under this section and is punishable with fine which may extend to 5000 rupees.

The Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act, 1989

Section 3 (1)(vii) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act, 1989 provides that whoever not belonging to SC/ST category, forces or intimidates any member of SC/ST not to vote or to vote a particular candidate or to vote in a manner other than provided by law shall be punished with imprisonment which may extend to 6 months and fine.

When a common person votes for a particular candidate, it is not just a vote, but a hope, confidence and a belief on the candidate which he expresses by exercising his Constitutional right. It has been rightly quoted by Sir Winston Churchill:  “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” But, sadly, in most of the cases, a common man falls prey of the filthy politics.

As a matter of fact, welfare of the people and representation of the cause of the common man no more remains a concern of the candidates, once they are elected. This leads to poor representation of the causes of the people of the concerned constituency.

It creates a blockage in the path of development in that particular constituency. The person who has been elected by the people to represent their needs before the appropriate authority, if fails in his duty, leads to the failure of those people who have reposed their trust and confidence in such person.  Despite of these provisions and numerous guidelines issued by the Election of India, it can be seen that almost all kinds of corrupt practices and electoral offences are predominant at the time of elections.

Other relevant factors

There are other factors which works simultaneously towards degrading the quality of electoral process in India. some of them are as follows:

1. Use of muscle powers in the elections- Plethora of instances may be found where candidates use violence and muscle power to influence the voters and to get results of election in their own favour. They even bribe, threaten or coerce the voters for the purpose. But, many of the times such actions go unpunished.
2. Appealing for votes in the name of religion and caste- This is another factor which is not only threatening the freedom and fairness of the elections in India, but is also an attack on the integrity of the Indian democracy. Secularism is a basic structure of the Indian Constitution[36], but still religion forms one of the grounds of vote in India. Similarly, on one hand, Constitution provides for equality under Article 14, 15, 16 and 18, and on the other hand, citizens of India are voting on the basis of caste. These factors, too play a vital role in diluting the principle of free and fair elections.
3. Non-transparency in the political funding- Recently, the Supreme Court of India in case of  Association for Democratic Reforms v Union of India[37]has declared electoral bonds as unconstitutional on the ground of undermining the right to information of the voters. According to the electoral bond scheme, the identity of the donors and the political party which has received the funds were not disclosed. However, it was an irony that the scheme was introduced to bring transparency in the political funding, but it made the system more opaque. The scheme was criticized on the basis of multiple factors, including animosity and the absence of effective laws to regulate the funding. Through this scheme, even the black money was being diverted towards the politics. This scheme has led to accumulation of black money in multiple hands. Even after the scheme has been struck down by the Court, there is a need to take action against those who were channelling their illegal monies in Indian politics under the garb the Electoral bonds scheme. Such channelling of money pollutes the electoral process.   
4. First Past the post system (FPTP)- This system is followed in the direct election of Lok Sabha and Legislative Assemblies of the states. In this system, the candidate who receives more votes than the other candidates wins the election. This system is also not free from the flaws. The major drawback of this system is that it is based on popularity and not majority. It means that the winning candidate do not have to win majority of votes (that is more than 50 per cent votes). He just have to obtain one vote more than his opponents, and he is the winner. In such a system, a winning candidate cannot act as a representative of the whole constituency in real sense because as a matter of fact, he is only the choice of a chunk of people who actually have voted for him. Also, this system blocks the new entrants in the politics. Therefore, FPTP is in actual sense, not leads to a representative government, but a popular government.
5.  Loopholes in the existing laws: The election laws are aimed at maintaining the purity of the elections and ensure free and fair elections in India. But, unfortunately is suffers from a number of loopholes. And if the freedom and fairness of election is to be maintained, the lawmakers must act to remove the lacunae from the existing election law. For instance, the election laws have failed to ensure the independence of Election Commission, curb criminalisation of politics, regulation and control the political funding, punishing those who are violating the election norms, and many more.

• Steps to improve the existing conditions:

From the above discussions it is clear that there has been dilution of the principle of free and fair election. The election in India cannot be called as free and fair in true sense as it suffers from a lot of flaws and lacunae. There is a pressing need to strengthen and improvise the electoral system in India. Free and fair elections are spirit of the Indian democracy. And, to preserve the principle of democracy, the principles of free and fair elections must be upheld. Following steps may be taken to maintain the freedom and fairness of the electoral process in India:

1. Reforms in appointment procedure of Election Commission– Reforms should be brought in the appointment process of Chief  Election Commissioner and other Election Commissioners, in order to maintain the independence of Election Commission. Election Commission should be free from any external influences, especially the influence of executive government.
2. Decriminalization of politics- Endeavours should be made to decriminalise the politics of Indian democracy.  Those candidates who have been accused of a serious/heinous crimes, or against whom chargesheet has been filed should be disqualified. The Law Commission, in its 244^th Report[38] stated that the disqualification on the basis of conviction has been proved to be ineffective in decriminalising politics. It recommended that there should be a provision for disqualification at stage of framing of the charges. It also recommended for enhancement of punishments for filing of false affidavits.
3. Educational qualifications- Minimum educational qualifications should be provided for the candidates, in order to maintain the quality of representation in the Houses of Parliament and Legislatures.
4. Punishments for corrupt practices- Commission of corrupt practices and electoral offences by the candidates and their agents must be met with strict actions.
5. Amendment in Election laws- The Parliament should reconsider the Election laws and proceed to formulate laws on the aspects which are still uncovered by such laws or amend the existing laws, whenever required. The 244^th Report of the Law Commission of India recommended for adding a new Section 8B in 1951 Act which should provide for disqualification on framing of charge for certain offences[39]. It also recommended amendment in the Sections 123 and 125A of the 1951 Act. The Government should take steps to adopt the recommendations of this Report.
6. Transparency in electoral funding– Transparency should be brought in the electoral funding. Opacity in  system of electoral funding attacks on the right of information of the voters, which is a fundamental right under Article 19(1)(a) of the Constitution of India.  Also, absence of effective laws in this respect leads to accumulation of black monies in the hands of few people. Therefore, adequate laws should be enacted by the Parliament to regulate electoral funding
7. Cost of election– The cost of elections should be reduced. Appropriate actions should be taken by Election Commission to reduce the costs of election.

The above-mentioned suggestions may aid in removing the impediments in the path of free and fair elections in India and can help in preserving the principles of Constitution of India.

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[1] India Const. art. 326.

[2] ‘National Crime Records Bureau, Crime in India 2022, ministry of home affairs (government of india) 2023’.

[3]Kiran Parashar, ‘Karnataka BJP Candidate K Sudhakar booked for attempting to  bribe IAS officer in Rs. 4.8 crore unaccounted cash seizure case’ , https://indianexpress.com/article/cities/bangalore/karnataka-bjp-k-sudhakar-bribe-attempt-ias-officer-9292728/ (April 28, 2024).

[4] Mohinder Singh Gill and Another v. The Chief Election Commissioner, 1978 (1) SCC 405.

[5] Keshavanand Bharati v. State of Kerala, (1973) 4 SCC 225.

[6] Keshavanand Bharati v. State of Kerala, (1973) 4 SCC 225.

[7] Kihoto Hollohan v. Zachilhu and Others, 1992 SCR (1) 686.

[8] Indira Nehru Gandhi v. Shri Raj Narain and Others,  (1975) 2 SCC 159.

[9]  Keshavanand Bharati Sripadagalvaru and Ors. v. State of Kerala and Another, (1973) 4 SCC 225.

[10] People’s Union for Civil Liberties and Another v. Union of India and Another,  [2013] 12 S.C.R. 283.

[11]AC Jose v. Sivan Pillai and Others, 1984 (2) SCC 656.  

[12]  Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi and Others 1978 SCR (3) 272.

[13]NP Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem District and four Others AIR 1952 SC 64.

[14] AC Jose v. Sivan Pillai and Others, 1984 (2) SCC 656.  

[15] TN. Seshan, Chief Election commissioner of India v. Union of India , (1995) 4 SCC 611.

[16] Anoop Baranwal v. Union of India, [2023] 9 S.C.R. 1.

[17] India Const., art. 324, Clause 2.

[18] Jaya Thakur v. Union of India, WRIT PETITION (CIVIL) NO.456 OF 2022.

[19]The Wire, https://thewire.in/politics/elections-2019-among-least-free-and-fair-in-three-decades-ex-officials-write-to-ec  [last visited: 15-07-2024].

[20] Association for Democratic Reforms, Analysis of Criminal Background, Financial, Education, Gender and other details of Winning candidates (Published on: 6^th June 2024).

[21] Union of India v. Association for Democratic reforms, 2002 (3) SCR 294.

[22] People’s Union for Civil liberties v. union of India , (2003) 2 S.C.R. 1136.

[23] K Prabhakaran v. P Jayarajan (2005).

[24] Lily Thomas v. Union of India, (2000) 6 SCC 224.

[25] Indira Nehru Gandhi v. Shri Raj Narain and Others,  (1975) 2 SCC 159.

[26] Corresponds to Section 171-A, Indian Penal Code, 1860.

[27] Corresponds to S. 171-B of the Indian Penal Code, 1860.

[28] Corresponds to Section 171-E, IPC.

[29] Corresponds to Section 171-C, IPC.

[30] Corresponds to Section 171-F, IPC.

[31] Corresponds to Section 171-D, IPC.

[32] Corresponds to Section 171-F, IPC.

[33] Corresponds to Section 171-G, IPC.

[34] Corresponds to Section 171-H, IPC.

[35] Corresponds to Section 171-H, IPC.

[36] SR Bommai v. Union of India, AIR 1994 SC 1918 and Keshavanand Bharati Sripadagalvaru and Ors. v. State of Kerala and Another, (1973) 4 SCC 225.

[37] Association for Democratic Reforms v Union of India, 2024 INSC 113.

[38]  Law Commission of India, Report on Electoral Disqualifications (Report No. 244), Ministry of Law and Justice, Government of India [Published on: February 2014].

[39] Law Commission of India, Report on Electoral Disqualifications (Report No. 244), Ministry of Law and Justice, Government of India [Published on: February 2014], Pg. 52.

1. Astha Priya, 1st Year, LL.M., South Asian University. ↩︎