Supreme Court Says Stricter Punishments Needed For Election Manipulations & Misconduct By Polling Officers

While reserving verdict on a batch of petitions seeking 100% verification of Electronic Voting Machine (EVM) data with Voter-Verifiable Paper Audit trail (VVPAT), the Supreme Court today expressed its reservations about existing penal provisions to address manipulations with the electoral process.

The Bench of Justices Sanjiv Khanna and Dipankar Datta observed that there should be strict penalties with regard to official misconduct during election process, as it is a serious issue. However, it restricted itself from making any further remarks noting that it was upto the Parliament and not in the court's domain.

Initially, when Sr Adv Maninder Singh took the dais to address arguments on behalf of Election Commission of India, Justice Khanna posed to him, "either you point out or some officer from the Election Commission can point out...the whole process to us, how the VVPATs are initially calibrated, at what stages do the candidates or their representatives are involved and what sort of storage or mechanism are there to ensure that there is no tampering or possibility of tampering".

In response to the query regarding penalties for EVM-tampering, Singh drew the court's attention to Sections 177 & 182 of the Indian Penal Code ("IPC") and Sections 131 & 136 of the Representation of the People Act, 1951 ("RPA"). 

After hearing the Senior Counsel, Justice Khanna observed that Section 177 IPC (dealing with furnishing of false information to a public servant) only entailed a maximum of 2 year-imprisonment. To quote the judge,

"It's not in our domain, but some penalty must be involved. As far as misconduct of any polling officer or presiding officer is concerned, that should be with criminal [...] this 177 you are saying, it's 2 years but...anyway, it's not in our domain".

It was further commented that any of the polling officers or presiding officers not complying with the mandate would be a "very serious thing".

When Singh sought to place reliance on Section 134 of RPA (breaches of official duty in connection with elections), Khanna, J expressed that it only involved a fine of Rs.500.

Thereafter, the Senior Counsel urged the Court to look at Section 136(2) of RPA, which stipulates that a returning officer/presiding officer/other person entrusted with official duty in connection with election, guilty of an electoral offence listed in Section 136 (like defacing, destroying ballot papers), shall be punishable with imprisonment upto 2 years, or fine, or both. 

For ready reference, the provisions referred to are extracted hereunder:

Section 177, IPC : Furnishing false information

"Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both;

or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both".

Section 182, IPC : False information, with intent to cause public servant to use his lawful power to the injury of another person

"Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant—

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

Section 131, RPA : Penalty for disorderly conduct in or near polling stations

"(1) No person shall, on the date or dates on which a poll is taken at any polling station,—

(a) use or operate within or at the entrance of the polling station, or in any public or private place in the neighbourhood thereof, any apparatus for amplifying or reproducing the human voice, such as a megaphone or a loudspeaker, or

(b) shout, or otherwise act in a disorderly manner, within or at the entrance of the polling station or in any public or private place in the neighbourhood thereof, so as to cause annoyance to any person visiting the polling station for the poll, or so as to interfere with the work of the officers and other persons on duty at the polling station.

(2) Any person who contravenes, or wilfully aids or abets the contravention of, the provisions of sub-section (1) shall be punishable with imprisonment which may extend to three months or with fine or with both.

(3) If the presiding officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under this section, he may direct any police officer to arrest such parson, and thereupon the police officer shall arrest him.

(4) Any police officer may take such steps, and use such force, as may be reasonably necessary for preventing any contravention of the provisions of sub-section (1), and may seize any apparatus used for such contravention".

Section 136(2), RPA : Punishment for other electoral offences

"(2) Any person guilty of an electoral offence under this section shall,—

(a) if he is a returning officer or an assistant returning officer or a presiding officer at a polling station or any other officer or clerk employed on official duty in connection with the election, be punishable with imprisonment for a term which may extend to two years or with fine or with both;

(b) if he is any other person, be punishable with imprisonment for a term which may extend to six months or with fine or with both".

Case Title: Association of Democratic Reforms v. Election Commission of India & Anr. | Writ Petition (Civil) No. 434 of 2023 (and connected matters)