SC Judgments

Corrupt Practice in Elections: Standard of Proof vis-a-vis Interest of Democracy

Baldev Singh Mann v. Surjit Singh Dhiman. Civil Appeal No. 3700 of 2007 . Date of Judgment 21-11-08

The case came to SC as an appeal in Election Petititon alleging violation of S. 123 (7) of the RP Act, 1951. The ingredients of the offence are; one, obtaining or procuring of assistance for the furtherance of the prospects of the candidate and two, that the assistance has to be procured from a person who is in one of the category mentioned in the section.

The legal principles invovled are also two fold, the standard of proof is (almost) as that of proving a criminal offence, as it is considered as having a quasi- criminal nature and the burden of proof is with the petititoner. The consequence of the first positition is that mere preponderence of probabilities is not enough to prove the case.

The court has the difficult task of balancing the interersts; of purity of elections, the consequence of setting aside an election, and the expenditure involved.

On the standards set above, the SC found the instant case against the respondent as corrupt practice is not proved and affirmed the decsion of the Election Tribunal (HC).

It is absolutely true that the social cost involved in such kind of decisions makes the court slow and cautious.

The real question but is identifying the true nature of offence; is it criminal, quasi-criminal or civil in nature?

Section 123 gives the description and ingredients of corrupts practices. Section 100 makes corrupt practice a ground for declaring election as invalid. Section 123 does not prescribe any punishment. At the same time, Chapter III of Part VII, includes description and punishment for Electoral Offences, where punishments ranges from fine to imprisonment. Reading of S. 123 will not reveal any nature that requires it to be treated as criminal or quasi-criminal. The chapter heading is 'corrupt practices' and is made distinct from 'electoral offences.'

The next issue is the costs involved in declaring an election invalid. The answer lies in S. 101, which makes it clear that on proof that the returned candidate obtained votes using corrupt practice, candidate other than the returned candidate may be declared the winner. Then there is no question of re-election and costs.

The present stand of the court and the courts before it is doing a disservice to the right of free and fair elections, which is a basic structure of constitution to put it that way. The identification of the nature of corrupt practices as that of quasi-criminal in nature, therefore is uncalled for and is against the law.

The approach of courts being slow and reluctant to declare an election void cannot be appreciated when the blow is continously falling on the right to free and fair elections and damging the "purity of elections" to quote the court itself.