Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Chapter IX > Offences Relating to Elections (Ss. 169 to 177 BNS)

Chapter IX, titled “Of Offences Relating to Elections” containing Sections 169 to Section 177 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the offences relating to elections. This Chapter has to be read along with the Representation of the People Act, 1951. In this article, we shall discuss offences relating to elections.

The scope of the provisions of this chapter is wide. It applies not only to the elections of legislative bodies (Parliament and Legislative Assemblies) but also to the membership of Municipalities, district boards, Panchayat, and other Local Authorities. An object of Chapter IX of the Bharatiya Nyaya Sanhita, 2023 is to provide for the punishment of malpractices in connection with elections and attempts to safeguard the purity of the franchise.

While exercising his franchise, a voter should be guided by his reason and not by extraneous considerations brought to bear upon by him by inducement. Corrupt practices at elections are presently specified in s 123 of the Representation of the People Act, 1951. Electoral offences; on the other hand, are laid down both in the BNS (ch IXA) and S. 123 of the Representation of the People Act, 1951.

Electoral Rights:

Electoral rights refer to the legal rights and privileges that allow individuals to participate in the electoral process, such as voting and standing for election. These rights are fundamental in democratic societies and are central to ensuring that citizens can engage in the governance of their country or community.

Key aspects of electoral rights include:

1. Right to Vote: This is the right for eligible citizens to cast a vote in elections, whether for local, regional, or national. This right is typically based on age, citizenship, and residence requirements, but may be limited or expanded based on the country’s laws and constitutional provisions.
2. Right to Stand for Election: Citizens also have the right to run for office in elections, depending on certain qualifications like age, residency, or other requirements defined by law. It also gives candidate a right to withdraw from the election.
3. Universal Suffrage: In many countries, electoral rights are extended to all adult citizens, regardless of race, gender, social status, or property ownership, ensuring equal participation.
4. Freedom of Expression: Electoral rights also include the right to freely express opinions, campaign, and gather in support of political candidates or movements.
5. Protection from Discrimination: Electoral rights are protected from discriminatory practices, ensuring that no eligible citizen is unjustly prevented from participating in the electoral process based on race, religion, gender, or other factors.
6. Free and Fair Elections: Electoral rights are linked to the broader principle of free and fair elections, where individuals can vote without fear of coercion, fraud, or undue influence.

The exact nature and scope of electoral rights can vary depending on the legal and political systems of each country, but they are essential to the functioning of democratic systems, ensuring that governments are accountable to the people. In this article, we shall see criminal provisions for offences relating to elections.

Objectives of Chapter IX BNS:

• Free and fair election
• Control electoral malpractices
• Maintain the integrity of election process
• Protect the democracy of the state

Section 169 BNS:

Candidate” and “Electoral right” defined: 

For the purposes of this Chapter-

(a) “candidate” means a person who has been nominated as a candidate at an election;

(b) “electoral right” means 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 any election.

Explanation (c) attached to Section 2(28) BNS says the word ‘election’ denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election. This the word ‘election’ in Section 169 gives the Scope of the Act.

The ‘candidate’ must be nominated by the registered parties or an independent nominated by the Election Commission.

‘Electoral right’ is voluntary it cannot be forced on anybody. Thus to vote in the election is voluntary and not mandatory.

Section 170 BNS:

Offence of Bribery Defined: 

Whoever-

(i) 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

(ii) 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.

(2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification.

(3) A 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.

Bribery is considered a corrupt practice that undermines the integrity of the electoral process and is therefore penalized under the BNS. The provision is aimed at ensuring free and fair elections by preventing the undue influence of money or other benefits on the electoral outcome.

The corrupt practice of bribery is committed not only by a person who provides gratification but also by the person who accepts such gratification. The receipt of, or any agreement to receive, any gratification, whether as a motive or a reward, by a person for standing or not standing as a candidate or for withdrawing or not withdrawing his candidature or for voting or refraining from voting also amounts to a corrupt practice.

A gratification to constitute bribery may not necessarily be restricted to pecuniary (in form of money) gratifications. It includes all forms of entertainment and all forms of employment for reward.

The use of word “offer” in clause (2) of section means, even offer is a complete offence.

Section 173 BNS: 

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:

Provided that bribery by treating shall be punished with fine only.

Explanations:

“Treating” means that form of bribery where the gratification consists in food, drink, entertainment, or provision.

This section gives the meaning of the word “Treating”. The corrupt practice of bribery is committed not only by a person who provides gratification but also by the person who accepts such gratification. The receipt of, or any agreement to receive, any gratification, whether as a motive or a reward, by a person for standing or not standing as a candidate or for withdrawing or not withdrawing his candidature or for voting or refraining from voting also amounts to a corrupt practice.

A gratification to constitute bribery may not necessarily be restricted to pecuniary (in form of money) gratifications. It includes treating, all forms of entertainment and all forms of employment for reward.

Punishment-Imprisonment for 1 year, or fine, or both or if treating only, fine only.

Nature of Offence: Non-cognizable-Bailable-Triable by Magistrate of the first class, Non-compoundable.

In Smoldon v. Whitworth, 55 ELR 249 (SC) case the Court held that the payment made to a candidate not to withdraw when the last date for withdrawal of candidatures is already over may not amount to corrupt practice of bribery.

In T. N. Angami V. Smt. Ravolueu, AIR 1972 SC 2367 case the court held that the promise not made to a particular voter or voters but to the general body of voters without distinguishing between those who were favourably inclined and those who were not is not a corrupt practice.

In Ghasi Ram vs Dal Singh & Others, AIR 1968 SC 1191 case the court held that the energy to do public good should be used not on the eve of elections (The period of the code of conduct for election) but much earlier and if such things are done on the eve of an election, although for general public good, they are when all is said and done an evil practice.

In Deepak Ganpatrao Salunke vs Governor Of Maharashtra & Others, 1999 CriLJ 1224 Bom, case the Court cleared that the concept of gratification is with respect to individual and not with respect to political party. Seeking the support of a political party (RPI in this case), during the course of the election and making an offer to a political party of some share in political power for giving support cannot be called as gratification as contemplated in the section.

In Iqbal Singh v. Gurdas Singh, AIR 1976 SC 27, case the appellant filed an election petition alleging of invalid votes, the distribution to Harijans of large sums of money for construction of Dharamshalas, and the issue of a large number of gun licences, as gratification for inducing voters to vote for the respondent and that thereby, the corrupt practice of bribery under S. 123(1) of the Representation of the People Act, 1951. The court held that the term ‘gratification’ should be deemed to refer only to cases where a gift is made of something which gives a material advantage to the recipient. A gun licence gives no material advantage to the recipient. It might gratify the recipient sense of importance if he has a gun licence in a village where nobody else has a gun licence.

Section 171 BNS:

Undue Influence at Elections: 

(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.

(2) Without prejudice to the generality of the provisions of sub-section (1), whoever-

(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or

(b) 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).

(3) 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.

Undue influence at an election is defined as voluntary interference or attempted interference with the right of a person to stand or not to stand as a candidate or to withdraw or not to withdraw from being a candidate or to vote or refrain from voting at an election. Any interference or attempt at interference at such electoral right by undue influence whether direct or indirect is a corrupt practice. However, such direct or indirect interference or attempt to interference must be with the consent of the candidate or his election agent.

In  Shiv Kirpal Singh v. V. V. Giri, AIR 1970 SC 2097 case, the court held that the canvassing by the candidate, or his agents or supporters by all legal and legitimate means cannot be called as undue influence. It does not interfere or attempt to interfere with the free exercise of the electoral right.

In Shri Baburao Patel & Ors vs Dr. Zakir Husain & Ors, AIR 1968 SC 904 case, the court held that friendly advice or influence arising from gratitude or esteem is not undue influence.

In Ram Dial vs Sant Lal And Others, AIR 1959 SC 855 case the court held that the spiritual heads or religious leaders may canvas for a candidate at an election. But where a spiritual head or a religious leader particularly leaves no choice to the electors not only by issuing in writing the Hukum or Farman or Fatwas but also by his speeches to the effect that they must vote for the candidate, implying that disobedience of his mandate would carry divine displeasure or spiritual censure the case would be clearly brought within the purview of the corrupt practice of undue influence.

In Raj Raj deb v. Gangadhar, AIR 1964 Ori 11, case the candidate informed the voters that he was Cjalanti Vishnu and representative of the Lord Jagannath himself and that any person who did not vote for him would be the sinner against the lord and the Hindu religion. The court held that the propaganda amounts to offence as per the IPC under Section 171 F.

In Shubhnath Diagram vs. Ram Narain Prasad, AIR 1960 SC 148 case, the court ruled that it is illegal to accuse those who do not vote for the cock (symbol of the candidate) of being irreligious. Similarly, a proclamation that wrath of deities invoked if the electorate did not vote for a particular candidate would amount to undue influence.

In Deepak Ganpatrao Salunke vs Governor Of Maharashtra & Others, 1999 CriLJ 1224 Bom, case a statement was made by a ruling party to the RPI that if they support the ruling party in the parliamentary elections, the later would appoint one of their members as Deputy Chief Minister of Maharashtra. The Court held that it is an offer to the party and not to an individual. Hence it is neither gratification nor undue influence.

Section 172 BNS:

Personation at Election: 

Whoever at an election applies for a voting paper or 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 or personation at an election:

Provided that nothing in this section shall apply to a person who has been authorised to vote as proxy for an elector under any law for the time being in force in so far as he votes as a proxy for such elector.

Personation is a primarily-legal term, meaning ‘to assume the identity of another person with intent to deceive’. It is often used for the kind of voter fraud where an individual votes in an election, pretending to be a different elector.

In an election, whosoever applies for a voting paper in the name of another person

• who is 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
• whosoever abets, procures or attempts to procure the voting by any person in any such way
• then such a person will be considered to have been committed the offence of personation at an election

In E. Anoop v. the State of Kerala, 2007 CrLJ 2968, case the prosecution alleged that the petitioner entered the booth and appeared before the officers in charge of the polling station at the polling station and personated himself as another legal voter in the certain booth. He claimed a ballot paper to facilitate him to exercise his franchise. His identity was challenged by a polling agent. The prosecution thereby alleged that the petitioner had committed the offence punishable under S.171(F) I.P.C. by applying for a voting paper in the name of any other person. The court insisted on the phrase “applies for”. The court held that it is not required to prove that the inductee attempted to vote in the election. It is sufficient to prove that he applied for the voting paper. Hence it is an offence under S. 171 (D).

Section 174 BNS:

Punishment for Undue Influence and Personation in 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.

Undue influence at an election is defined as voluntary interference or attempted interference with the right of a person to stand or not to stand as a candidate or to withdraw or not to withdraw from being a candidate or to vote or refrain from voting at an election.

Personation is a primarily-legal term, meaning ‘to assume the identity of another person with intent to deceive’. It is often used for the kind of voter fraud where an individual votes in an election, pretending to be a different elector.

Punishment-Imprisonment for 1 year, or fine, or both.

Nature of Offence: Cognizable-Bailable-Triable by Magistrate of the first class-Non-compoundable.

Section 1715:

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.

If the candidate or his agent has 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 then it is corrupt practice.

False statements of fact in relation to the personal character or conduct of candidate are penalized by this Section.

Punishment: Fine.

Nature of Offence: Non-cognizable-Bailable-Triable by Magistrate of the first class-Non-compoundable.

In A.S. Radhakrishna Ayyar vs Emperor, AIR 1932 Mad 511 case the court held that for applying Section 171 (G) (S. 175 BNS) something must be stated as a fact and not as a general imputation or as a matter of opinion.

Section 176 BNS:

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 ten thousand 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.

This Section makes it illegal for anyone unless authorized by a candidate to incur any expenses in connection with the promotion of the candidate’s election.

Nature of Offence: Non-cognizable-Bailable-Triable by Magistrate of the first class-Non-compoundable.

Punishment: Fine of rupees ten thousand.

Section 177 BNS:

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.

A proper account of election expenditure is required to be provided by political parties and contesting candidates to the Election Commission of India (ECI) after the conclusion of the Elections within 90 days after the completion of the elections. Not keeping of election accounts or not submitting it to the ECI within prescribed period is a corrupt practice and offence.

Similarly, within 30 days after the conclusion of the elections, all contesting candidates are required to produce an expenditure statement before the ECI. Political parties are supposed to provide details of lump sum amounts provided to contesting candidates; they are also required to provide details on amounts received to the ECI.

Punishment: Fine of rupees five thousand.

Nature of Offence: Non-cognizable-Bailable–Non-compoundable. Triable by Magistrate of the first class

In Mast ram v. State of Punjab, 1995 Supp (2) SCC 744 case the petitioner submitted the accounts but there were mistakes in it. The court held that the Section 171 (I) applies to that candidate who has not kept records of accounts of election expenses and not to the candidate who contested the election and kept the account in an irregular manner.

Conclusion:

In conclusion, the Bharatiya Nyaya Sanhita, 2023 (BNS) lays down several criminal provisions to address offenses relating to elections, ensuring the integrity of the electoral process. These provisions cover a wide range of actions that are considered illegal and detrimental to fair elections, such as: bribery, undue influence, personation at election. The criminal provisions under the BNS aim to maintain the credibility and fairness of the electoral process, protect voter rights, and ensure that elections reflect the genuine will of the people. Any violation of these provisions carries significant legal consequences, ensuring accountability and discouraging fraudulent activities in elections.

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