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 practice

Representation 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 offence

Under 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 capturing

Under 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 place

As 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 without the consent, of the candidate or his election agent;

(ii) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and

(iii) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents.

What Courts have said on booth capturing

Unfortunately, booth capturing is not a novel issue. It was much more rampant in the ballot paper voting era and led to some crucial decisions by the Supreme Court. These decisions, alongwith those passed after EVMs came into the picture, are discussed hereunder.

♦ Allegation of booth capturing should be specifically pleaded with material particulars 

In Sasanagouda v. Dr. S.B. Amarkhed and Others (1992), the Supreme Court held that as booth capturing materially affects election results and is a ground for disqualification, an allegation in that regard should be specifically pleaded giving material particulars. "Booth capturing wholly negates the election process and subverts the democratic set up which is the basic feature of our Constitution", the court said.

With respect to the explanation appended to Section 135A (defining booth capturing), it was opined that the definition is explanatory and inclusive, not exhaustive: "The Parliament used words of width with generality to lug in or encompass diverse acts or omissions innovated with ingenuinity to escape from clutches of law."

♦ Suppression of voter choice by booth capturing, etc. against the spirit of democracy

In Ruli Ram and Anr v. State of Haryana (2002), the Supreme Court was dealing with the killing of two young boys on account of a political tiff between the victims and the accused. As per the prosecution case, the victim family had refused to vote for the candidate supported by the accused in Panchayat elections. As a matter of revenge, the accused threw the two young boys belonging to the victim family into a pond and the same resulted in their death. Subsequently, allegations of booth capturing and poll violence came in.

The Trial Court convicted and sentenced the accused-appellants under Section 304 Part II, IPC (punishment for culpable homicide not amounting to murder), but in appeal, the High Court held that the case was covered by Section 302 (murder). While the Trial Court sentenced them to 10 years' rigorous imprisonment, the High Court awarded sentence of imprisonment for life.

After perusing the material, the Supreme Court agreed with the Trial Court. The appellants' conviction under Section 304 Part II IPC and sentence of 10 years' rigorous imprisonment were upheld. However, in the decision, the court expressed its concern over criminalization of politics and said:

"In a democracy, the path to power cannot be allowed to have dead bodies littered over it. It cannot be a case of capturing power (beginning with booth capturing) at any cost. The trend is dangerous and has to be curbed. In a case linked with political battles, stringent punishment is desirable without exception. Choice to vote for a candidate cannot be suppressed by intimidation. That would be against the spirit of democracy."

♦ Suggestion for installation of cameras in polling booths

In Janak Singh v. Ram Das Rai & Ors (2005), one of the parties suggested that the ECI "install electronic gadget for video recording" such as "close circuit camera", so as to "minimize the booth capturing and rigging and intimidation of voters". The court joined in on the same and suggested on its part that some cameras should be installed inside polling booths to keep vigilance over the local staff, as sometimes the local staff becomes party to illegal/unfair practices.

Before parting, the court also suggested the ECI to consider posting some paramilitary personnel inside polling booths, in addition to the law and order duty outside polling booths. It was remarked that this would have a sobering effect on the local staff entrusted with conducting the election, as what happens inside a polling booth is beyond the reach of the personnel posted outside.

♦ Booth capturing to be dealt with 'iron hands'

In Lakshman Singh v. State of Bihar (2021), a Bench of Justice DY Chandrachud (as he then was) and Justice MR Shah was dealing with persons who allegedly formed an unlawful assembly "to snatch the voters list and to cast bogus voting" as well as attacked some political workers during an election. The accused were sentenced to 6 months' simple imprisonment by the Trial Court, whereafter High Court at Ranchi confirmed the sentence.

Dismissing the appeals filed, the top court observed that any attempt of booth capturing and/or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy. It was further opined that the freedom of voting is a part of freedom of expression and secrecy of casting vote is necessary for strengthening democracy.

In light of the strong stance taken by the Apex Court of the country against booth capturing hitherto, it would be interesting to see how incidents of booth capturing reported in Lok Sabha polls of 2024 are dealt with. Notably, videos of such incidents in Manipur have gone viral and there are demands of countermanding in constituencies of other states.

Also Read - Explainer | Appeal On Ground Of Religion & Use Of Religious Symbols For Votes As 'Corrupt Practice' Under RP Act