Where the Law Meets the Ballot

Free and fair elections are the bedrock of any democratic society. They not only ensure the legitimacy of governance but also reflect the collective will of the people. However, the electoral process is vulnerable to various forms of manipulation and malpractice that can severely compromise its fairness and transparency. Recognising this, the Indian legal system has long incorporated penal provisions to deter and punish electoral offences.

With the enactment of the Bharatiya Nyaya Sanhita (BNS), 2023, which replaces the Indian Penal Code, 1860, the laws governing electoral offences have been modernised and consolidated under a dedicated chapter. This reform is part of a broader effort to simplify and contemporise India’s criminal law framework. The chapter titled “Of Offences Relating to Elections” under the BNS codifies and penalises a range of unlawful acts associated with elections such as bribery, undue influence, personation, publication of false statements, illegal payments and failure to maintain proper election accounts.

These provisions aim to preserve the integrity of the electoral process by defining the scope of prohibited conduct, establishing presumptions in cases of bribery and undue influence and providing clear penalties. Importantly, the law distinguishes between legitimate political activity such as declarations of public policy and unlawful conduct that seeks to distort voter autonomy or gain unfair advantage.

By providing statutory definitions for terms like “candidate” and “electoral right,” the BNS ensures conceptual clarity. It also reflects a nuanced understanding of modern electoral malpractices by covering not just overt acts of corruption but also subtler forms of manipulation, such as religious coercion or misleading statements. In doing so, the BNS strengthens the legal architecture intended to protect the electoral process and by extension the democratic fabric of the country.

Who is considered a candidate for the purposes of offences relating to elections?

A candidate means a person who has been nominated as a candidate at any election.

What is meant by electoral right?

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 an election.

What constitutes the offence of bribery in connection with elections?

A person commits the offence of bribery if they:

• give gratification to any person to induce or reward them or another for exercising any electoral right; or
• accept any gratification for themselves or others as a reward for exercising or inducing someone to exercise any electoral right.

Does a public policy declaration or promise of public action amount to bribery?

No, a declaration of public policy or a promise of public action is not considered an offence of bribery.

When is a person deemed to give gratification?

A person is deemed to give gratification if they offer, agree to give, or attempt to procure a gratification.

When is a person deemed to accept gratification?

A person is deemed to accept gratification if they obtain, agree to accept, or attempt to obtain gratification. If they accept it as a motive for doing something they do not intend to do, or as a reward for something not done, it is deemed as accepting gratification.

What is undue influence at an election?

Undue influence at an election occurs when someone voluntarily interferes or attempts to interfere with the free exercise of any electoral right.

What specific acts amount to undue influence at elections?

The following acts are deemed to interfere with free electoral rights:

• threatening a candidate or voter, or someone in whom they are interested, with any kind of injury;
• inducing or attempting to induce a belief in divine displeasure or spiritual censure.

Is exercising a legal right considered undue influence?

No, the exercise of a legal right without intent to interfere with an electoral right, or public policy declarations or promises of public action, are not considered undue influence.

What is personation at an election?

Personation occurs when someone:

• Applies for a voting paper or votes in the name of another (living or dead) or a fictitious name; or
• Votes more than once in their own name at the same election; or
• Abets or procures voting in any such way.

Is there any exception to the offence of personation?

Yes, the provision does not apply to a person authorised to vote as a proxy under applicable law.

What is the punishment for bribery?

Punishment for bribery is imprisonment up to one year, or fine, or both. However, if bribery is by treating (food, drink, entertainment, or provision), it is punishable with fine only.

What is the punishment for undue influence or personation at an election?

Punishment is imprisonment up to one year, or fine, or both.

What is the punishment for making a false statement in relation to a candidate’s personal character or conduct?

If made with the intent to affect the result of an election and known or believed to be false, or not believed to be true, the person is punishable with fine.

What constitutes illegal payments in connection with an election?

Incurring or authorising election-related expenses (e.g., public meetings, advertisements, circulars) without the candidate’s written authority is an offence.

Is there any exception to the offence of illegal payments?

Yes, if the expense (not exceeding ten rupees) is approved in writing by the candidate within ten days, it is deemed authorised.

What is the punishment for failing to keep election accounts as required by law?

Failure to keep such accounts is punishable with fine up to five thousand rupees.

Therefore, the provisions relating to electoral offences under the BNS represent a significant reaffirmation of India’s commitment to democratic integrity. By codifying offences that threaten the free and fair conduct of elections, the law not only deters electoral malpractice but also promotes accountability and ethical political engagement. The BNS carefully balances constitutional freedoms such as the freedom of speech and the right to political participation with the need to prevent corruption, coercion and deceit in elections.

By criminalising acts like bribery, undue influence, personation and unauthorised campaign expenditures, it imposes legal constraints on behaviour that could otherwise distort electoral outcomes. It also reinforces procedural fairness by requiring transparency in campaign finances through the maintenance of election accounts. At the same time, the law provides important safeguards, such as recognising declarations of public policy or legal acts done without malicious intent as outside the ambit of criminal liability. This helps prevent over-criminalisation and ensures that legitimate political advocacy is not stifled.

In a country as populous and diverse as ours where elections are often contested with high stakes and intense competition, robust legal safeguards are essential to uphold democratic norms. The electoral offences chapter of the BNS thus serves as a critical tool in ensuring that the electoral process remains free from manipulation, coercion and fraud. Effective enforcement of these provisions coupled with public awareness and institutional vigilance will be essential in achieving the law’s intended purpose and in reinforcing public trust in the democratic process.

 Muneeb Rashid Malik is an Advocate.

He tweets @muneebmalikrash.