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Legislative Commentary Section 58A Representation Of The People Act, 1951

Extract Of The Relevant Legislative Text

Section 58A. Representation of People Act, 1951:

58A. Adjournment of poll or countermanding of election on the ground of booth capturing-
  1. If at any election:
    1. booth capturing has taken place at a polling station or at a place fixed for the poll (hereafter in this section referred to as a place) in such a manner that the result of the poll at that polling station or place cannot be ascertained; or
    2. booth capturing takes place in any place for counting of votes in such a manner that the result of the counting at that place cannot be ascertained, the returning officer shall forthwith report the matter to the Election Commission.
       
  2. The Election Commission shall, on the receipt of a report from the returning officer under sub-section (1) and after taking all material circumstances into account, either:
    1. declare that the poll at that polling station or place be void, appoint a day, and fix the hours, for taking fresh poll at that polling station or place and notify the date so appointed and hours so fixed in such manner as it may deem fit; or
    2. if satisfied that in view of the large number of polling stations or places involved in booth capturing the result of the election is likely to be affected, or that booth capturing had affected counting of votes in such a manner as to affect that result of the election, countermand the election in that constituency.
Explanation:
In this section, booth capturing shall have the same meaning as in section 135A.

List Of Amendments To The Text
There are currently no amendments to Section 58A.

Background
Booth capturing originally did not figure under the categories of corrupt practices enumerated under Section 123 of the Act., It was only in 1989 that Parliament included booth capturing by a candidate or his agent or other person   as one of the eight categories of corrupt practices.

The Explanation to Section 58-A lays down that booth capturing shall have the same meaning as in Section 135-A. Section 135-A which was brought on statute with effect from March 15, 1989 under Amendment Act 1 of 1989, prescribes booth capturing to be an of fence and the person committing it shall be punishable with imprisonment for a term which shall not be less than six months and which may be extended to a maximum of two years and fine.

Where such offence was committed by a person in the service of the Government he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and fine.

Objectives/Purpose
One of the basic postulates of democracy is a free and fair election. During the past few elections 'rigging' and 'booth capturing' have become a menace. So widespread is their use, in some States atleast, that they are now almost a part of the electoral process. Of the two, booth capturing is comparatively a recent phenomenon.

Scope Of Application
Under section 58A R.P.A. 1951, the Election Commission is empowered to adjourn a poll or countermand the election on grounds of booth capturing. The procedure is that the returning officer reports the matter to the Election Commission.

Upon receipt of such a report and then taking all material circumstances into account, Election Commission may either have a repoll at that polling station or if many polling stations are involved in the constituency, countermand the election in that constituency leading to a totally new election there. Booth capturing is defined in section 135A of R.P.A. 1951 and applies to the intimidation or prevention of voters, seizure of polling stations as well as of the counting stations and use of force to allow only their supporters to vote.

Interpretation In Cases
In its first judicial pronouncement by the apex Court  on booth capturing m Basanagouda v. S.B. Amarkhed, it was observed that in the recent past there have been various complaints regarding booth capturing. The tendency to over - awe the weaker section of the society and to physically take over the polling booths meant for them is on the increase.

Booth capturing wholly negates the election process and subverts the democratic set-up which is the basic feature of  our Constitution  During the post - independence era ten parliamentary elections have entrenched democratic policy in this country which cannot be permitted to be eroded by showing laxity in the matter of booth capturing which has  now been made an offence under Section 135-A of the Act , it was further observed.

On the point of enumeration of categories of booth capturing AS amended to the Explanation in Section 135-A, the Supreme held that it was an inclusive explanation and seizure of polling station, taking possession thereof and making polling authorities to surrender the ballot papers or voting machines and doing of any other act which affected the orderly conducting of elections, etc. had been enumerated.

They are only explanatory and inclusive but not exhaustive. The Parliament used words of width with generality to lug in or encompass diverse acts or omissions ; innovated with ingenuity to escape from clutches of law.

On the facts of the case the Supreme Court held that in the instant case the High Court erred in taking the view that even though no factual foundation had been laid in the election petition, but since there were allegations of booth capturing and rigging in various paragraphs of the petition it was necessary to summon and examine the documents asked for by the respondent.

The examinations of marked ballot papers and other used ballot papers can in no way substantiate the allegations of booth capturing. Neither the names of persons nor any other details were given in the election petition. Only bare allegations were made that votes of dead persons and those who had left the constituency had been cast.

Therefore the Supreme Court held:

the High Court grossly erred in permitting the summoning of items... . Following its earlier decisions the Court reiterated that in the election petition, proceedings being of quasi - criminal nature the allegations must be pleaded clearly and with full particulars especially the grounds of corrupt practices cannot be permitted to be tried on the basis of deficient pleadings or by filing applications for production of record to fish out grounds as material which is not part of the pleadings. In any case secrecy of the ballot boxes cannot be tinkered unless an iron-cast case is made out in the election petition .

The second case is a decision of the Punjab and Haryana High Court in S. Baldev Sinqh Mann V. Gurcharan Sinqh. In the instant case the election petitioner had stated in the election petition that he had challenged the election of the returned candidate on the ground of corrupt practice mentioned in Section 123(8) of the Act.

The evidence as had been brought on record was to the effect that some people had polled votes in place of the real electors or some people had forcibly cast their votes. The High Court observed that if an elector had cast his vote at two polling booths or genuine electors had not polled their votes, the offence of corrupt practice of booth capturing would not be established. The activitieswhich denote booth capturing are not exhaustive.

Nevertheless
these activities have to be of the kind which are mentionned in clauses (a) to (e) under the Explanation to Section 135-A of the Act . The Court found that the evidence brought on record did not establish any of the activities mentioned in clauses (a) to (e) under the Explanation to Section 135-A of the Act. In Mukhtiar Singh V Bal Mukand, the allegation of booth capturing was made, but the Court found the allegation untenable.

Current Status
The Law Commission recommends:
  1. Under section 58A of the Representation of the People Act, 1951, the Election Commission should be authorised to take a decision regarding booth capturing on the report of the returning officers, observers or citizen groups. Also, the Commission should be empowered to countermand the election and order a fresh election or to declare the earlier poll to be void and order a re-poll in the entire constituency;
     
  2. EC should consider the use of tamper-proof video and other electronic surveillance at sensitive polling stations/ constituencies.
Further, in June 2016, the ECI sent a proposal to the law ministry to amend the Representation of the People Act, 1951. It sought the inclusion of a Section 58B, on the lines of Section 58A, under which the ECI has the right to adjourn or countermand elections in case of booth capturing. The ECI demanded that a similar Section 58B be included so that elections can be postponed or canceled if political parties bribe voters in a constituency. 

Conclusion
One widely suggested reform to the provision is that under Section 58A of the Act, the Election Commission should not only be empowered to countermand the election and order a fresh election as now provided under the law, but also should be empowered to declare the earlier poll to be void and order only a re-poll in the entire constituency, instead of a re-election there, depending on the nature and seriousness of each case.

Further, Election Commission may also be empowered to initiate investigations of booth capturing and other violations of the electoral law through the Central or State police investigating agency and/or by the establishment of special courts and/or by appointment of public prosecutors. 
There is a need to further increase the scope of application of the Section.

Again, under Section 58A of the Act, the Election Commission should not only be empowered to countermand the election and order a fresh election as now provided under the law, but also should be empowered to declare the earlier poll to be void and order only a re-poll in the entire constituency, instead of a re-election there, depending on the nature and seriousness of each case

To further discourage booth capturing/the EC might consider having some form of tamper-proof video cameras or surveillance equipment as a deterrent in sensitive areas. But, if this is done, the punishment to offenders should be swift and heavy.

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