Protection Against Harm to Elections in all fairness

Co-author

Introduction

Our country’s election is a civilizational, cultural and even festive time where over a billion people come together in a shared national act. It is that crucial time when the Constitution places complete power in the hands of every adult citizen, regardless of wealth, status, caste, religion, or social privilege. As the Election Commission of India has often described in its post-election reports, the general elections are ‘the most diverse expression of popular will in human history.’ The sheer magnitude of the exercise is staggering, over 912 million voters1 thousands of political candidates, millions of polling personnel, and polling stations in terrain as remote as the Siachen base camp and the Sundarbans.

In India, the right to vote is a statutory right, and elections are governed by Article 326 of the Indian Constitution, which establishes universal adult suffrage, allowing every citizen aged 18 or above to vote, subject to the qualifications prescribed by law. The detailed provisions relating to registration of voters, conduct of elections and disqualifications are laid down in the Representation of the People Act, 1950 and 1951, as the exercise of the right to elect depends entirely on statutory provisions. The Hon’ble Supreme Court of India has consistently held that the right to vote is not a Fundamental Right, but a right created by the Constitution and regulated by Parliament. The freedom to free and fair elections and express choice is protected under Article 19(1)(a) as part of freedom of speech and expression, a fundamental right. The Hon’ble Supreme Court held in the case of Jyoti Basu v Debi Ghoshal, 1982, that “the right to elect, fundamental though it is to democracy, is anomalously enough neither a fundamental right nor a common law right. It is pure and simple a statutory right.”

Yet the vast and intricate mechanism of ‘election’ is fragile. Elections are susceptible to disruption, manipulation, distortion, or corruption through various means, including digital deception, psychological warfare, misinformation campaigns, and foreign influence. The Hon’ble Supreme Court held in Indira Gandhi v. Raj Narain (1975),2 “Democracy is meaningful only if elections are free and fair.” This principle was elevated to the level of the Basic Structure of the Constitution, meaning no law, no government, and no authority can dilute or compromise this requirement.

Chapter IXA, ‘Offences Relating to Elections,’ was not part of the original Indian Penal Code (IPC)1860. It was introduced into the IPC by the Indian Elections Offences and Inquiries Act, 1920. Chapter IXA aimed to codify specific offences related to the electoral process within the main body of Indian criminal law to ensure free and fair elections and protect the free exercise of electoral rights. Before 1920, laws regarding election offenses were likely scattered or less formally defined. The 1920 Act brought these specific offences under one chapter (Sections 171-A to 171-I) of the IPC.

The Indian Elections Offences and Inquiries Act, 1920 was enacted to provide punishment for malpractices related to elections and to establish procedures for conducting inquiries into disputed elections to legislative bodies constituted under the Government of India Act. It was passed by the Indian Legislative Council and received the Governor General’s assent on September 14, 1920. The Act extended to the whole of British India and aimed to address corrupt practices such as bribery, undue influence, personation, false statements, and illegal payments during elections.

This Act also amended Indian Penal Code by inserting new provisions specifically dealing with election offenses, now found in Chapter IX-A (Sections 171-A to 171-I)3. It empowered authorities to take various actions for investigating election malpractices, including enforcing the attendance of witnesses, compelling document production, examining witnesses under oath, and conducting searches. The Act was significant because it laid down a legal framework for safeguarding the integrity of elections and provided a mechanism to punish electoral offenses systematically.

The transition to the Bharatiya Nyaya Sanhita marked a historic shift. Enacted in 2023 and effective from July 1, 2024, the BNS replaced the IPC with a more modern, decolonized code. Electoral offences were consolidated into Chapter IX (Sections 169-177), retaining the core structure of the old provisions while enhancing clarity and penalties.4 These rules are made to keep our elections clean, fair and free from cheating. The law covers actions like giving money for votes, threatening or pressuring voters, using fake identities to cast votes, spreading false information about candidates, breaking spending rules, or misusing power at polling stations.

Given this foundational role of elections in India’s constitutional arrangement, it becomes essential to understand what harms elections, how such harm has evolved, and how Indian law has tried, and often struggled, to keep pace with the changing nature of these threats.

This article attempts to explore the journey in depth, through a detailed legal, social and national security analysis, it evaluates what ‘harm to elections’ truly means in today’s India; how past laws, particularly the colonial-era IPC, tried to address these harms; how the BNS modifies and modernizes the framework; and what gaps, challenges and opportunities remain.

Background to offences related to elections under ipc

The concept of offenses against elections in India traces back to the colonial era, when the British administration sought to regulate electoral conduct to maintain order in a nascent representative system. The Indian Penal Code of 1860 (IPC), enacted under British rule, laid the foundational legal framework by criminalizing acts like bribery (Section 171B), undue influence (Section 171C), and personation at elections (Section 171D), which were seen as direct threats to fair polling. These provisions were influenced by English common law and aimed at preventing corruption in limited franchise elections during the Raj.

Post-independence, with the adoption of universal adult suffrage in 1950, election offenses evolved amid growing political competition. The Representation of the People Act (RPA), 1951, expanded on IPC by defining corrupt practices such as booth capturing, intimidation, and electoral fraud, making them punishable to ensure free and fair elections. The 1970s marked a dark chapter with the Emergency (1975-1977), when criminals began entering politics to evade state crackdowns, leading to the criminalization of electoral processes. By the 1980s and 1990s, violence and money power became rampant, with reports of booth capturing in states like Bihar and Uttar Pradesh. The Supreme Court intervened in cases like the 1994 Union of India vs. Association for Democratic Reforms5, mandating disclosure of criminal records to curb tainted candidates. Over time, offenses have modernized, incorporating cyber manipulations and disinformation, reflecting the intersection of technology and politics.

Comparison of offence against election from ipc to bns

Subject	IPC Sections/ Sub sections	BNS Sections	Summary of Comparison
Candidate, Electoral right defined	171 – A	169	No change
Bribery	171 – B	170	No change
Undue influence at elections	171 – C	171	No change
Personation at elections	171 – D	172	No change
Punishment for bribery	171 – E	173	No change
Punishment for undue influence or personation at an election	171 – F	174	No change
False Statement in connection with an election	171 – G	175	No change
Illegal Payment in connection with an election	171 – H	176	Upper limit of fine increased from ₹500 to ₹10,000
Failure to keep election accounts	171 – I	177	Upper limit of fine increased from ₹500 to ₹5,000

Electoral malpractice and legal offences

The Representation of the People Act,1951 (RPA 1951) is one of the most important laws governing India’s democratic framework. Enacted after independence, it provides the legal foundation for the conduct of free and fair elections to the Parliament and State Legislatures. The Act deals with qualifications and disqualifications of candidates, the registration and recognition of political parties, and the resolution of election disputes. It also lays down the powers and responsibilities of the Election Commission in ensuring transparency and accountability in the electoral process. Key provisions, such as Section 8 (disqualification of convicted members) and Section 29A (registration of political parties), constitute a cornerstone of India’s electoral democracy.

The whole nation is seriously concerned about the criminalisation of politics. An unholy nexus between politicians and criminals is not new, as several politicians have sought the assistance of criminals to rig elections in their favour. Their muscle power has been misused to seize polling booths on the day of the election and to intimidate voters from coming to polling stations. The post-election victimisation or violence perpetrated on voters, particularly those belonging to weaker sections of society, who dared to defy the local mafia in the matter of exercising their franchise, is also not something unheard of. Even the Vohra Committee, set up in the early 1990s by the government under the then Home Secretary to the Government of India, Shri N N Vohra, confirmed this politician-criminal nexus in its report (popularly known as the Vohra Committee Report), submitted on 5 October 1993. But what has caused real concern and anxiety to all is what may be called the politicisation of criminals. In the early stages, criminals lent their muscle power to politicians in exchange for favours or money. Eventually, these criminal elements realised that, if they could secure victories for others through coercion and criminal acts, they themselves could also win elections and enter legislatures, thereby ending their dependence on others. Unfortunately, the current trend is the desire of criminals and antisocial elements to enter the electoral process, not only to enjoy privileges but also to perpetrate their nefarious activities. In many cases, they have also won the electoral battles. Some social or apolitical organisations have conducted research in some of the states, notorious for the criminalisation of politics or the politicisation of criminals. They have come out with graphic details of criminal cases in many cases, of heinous crimes, like murder, dacoit, rape, extortion and so on, pending against several legislators in different courts of law. According to one survey, at the time of the October-November 2015 general election to the Bihar legislative assembly, 1.038 of the 3,450 candidates had criminal backgrounds.

As discussed in Chapter 8 on disqualification on the ground of conviction under section 8 of the 1951 Act, the law disqualifies only persons who have been convicted by a court of law for the offences specified in that section. Apart from the controversy over whether conviction under section 8 means conviction by the trial court or by the court of final appeal, the glaring discrepancies in the existing provisions of that section have also been brought out in those discussions. As has been pointed out, a person convicted of rape and sentenced to imprisonment for 10 years was earlier free under section 8(1) to contest an election, after a period of six years from the date of his conviction, though still serving the sentence of imprisonment. Although the law deems a person a criminal upon conviction, the public perceives otherwise. In his view, persons charged with heinous crimes and known history-sheeters are also criminals, although a formal conviction may not have been recorded against them by the courts. The Election Commission, sharing its concern in the matter, had suggested in 1998 that persons involved in serious offences punishable with imprisonment for five years or more should also be disqualified during the pendency of their trial, provided the competent court of law had taken cognisance of the offence and framed the charges against the accused. In almost similar terms, the Law Commission also made a recommendation in its 170th Report submitted to the government in May 1999. However, the reaction in political circles to the Election Commission’s and the Law Commission’s suggestions is one of scepticism.

Connection of recent electoral disruptions in indian elections to national security threats

In Jammu & Kashmir, post-Article 370 abrogation, insurgent activities spiked, with 40 attacks in 2024 killing 18 civilians and 20 security personnel. Naxalite-Maoist groups in Chhattisgarh and Odisha issued boycott calls, ambushing convoys and killing lawmakers, depressing turnout in “Red Corridor” districts. These patterns reveal a systemic issue: elections in India are not merely democratic exercises but battlegrounds where historical grievances, economic disparities, and political opportunism converge, often resulting in low voter turnout (e.g., 68% in Manipur amid clashes) and skewed representation.

Fake voters

Foreign nationals registered as voters in India are rare, comprising less than 0.012% of Bihar’s 7.42 crore voters during the 2025 Special Intensive Revision (SIR), with about 9,500 declared ineligible- mostly Nepali women married to Indian men in border districts like Supaul and Kishanganj.6 The Election Commission identified these through door-to-door checks amid concerns over illegal immigrants from Nepal, Bangladesh, and Myanmar, but many had Indian documents like Aadhaar and voter IDs, leading to claims/objections; some were reinstated after hearings.

Fake and illegal voters as national threat

• Manipulation of Government Formation: Fake or illegal voters distort the democratic mandate by artificially altering electoral outcomes. When non-citizens, duplicate voters, or fabricated identities influence results, the legitimacy of the elected government is compromised. Such a government does not represent the true will of the people and could be vulnerable to policy manipulation. This weakens the stability of political institutions and directly affects strategic decision-making regarding defence, intelligence, and national priorities. A manipulated election outcome becomes a threat to India’s sovereign authority.
• Foreign Influence & Cross-Border Interference: The presence of foreign or illegal voters- especially in border states- creates opportunities for external agencies to influence India’s internal politics. Intelligence operations may exploit these voters to support parties that favour weak border controls, lenient migration policies, or positions beneficial to foreign powers. When non-citizens begin to shape electoral outcomes, this constitutes a subtle form of demographic aggression. This allows hostile nations to indirectly interfere with India’s governance without traditional warfare, posing a serious long-term national-security risk.
• Demographic Pressure Points: Fake voters often get concentrated in sensitive or strategically important regions like border districts and communally fragile zones. Their presence artificially shifts population ratios and transforms political dynamics. This change fuels social tension, empowers extremist elements, and weakens national integration. These engineered demographic changes can be used to create unrest, influence local governance, or even tilt the balance in areas prone to separatist or radical sentiments. Such pressure points act as internal vulnerabilities that adversaries can exploit.
• Criminal Networks Capturing Local Governance: Organised criminal groups frequently use forged voter IDs and bogus registrations to capture local electoral bodies such as panchayats, municipalities, and even MLA seats. Once in power, these groups protect illegal businesses, drug networks, land grabs, smuggling, trafficking and compromise policing and intelligence operations. They influence administrative postings and disrupt lawful governance, turning local government structures into shields for criminal empires. This undermines internal security and law-enforcement capacity at the grassroots level.
• Erosion of Trust in Election Technology (EVMs & VVPAT): When fake voters are seen operating in an election, the public naturally begins doubting the fairness of the entire electoral system. Even if EVMs and VVPATs are secure, fake voter participation gives the perception that the system is compromised. This loss of trust fuels conspiracy theories, political unrest, and disputes over results. Adversarial groups, domestic or foreign, can weaponise this distrust to destabilise the country. Weakening public faith in India’s electoral technology directly harms national stability.7
• Weakening of Internal-Security Policies: Fake or illegal voters often vote in blocs that support political actors who advocate soft policies on border control, infiltration, or policing. This leads to governments that may reduce enforcement against illegal settlements, restrict local policing efforts, or avoid strong measures against extremist networks. Over time, such policies weaken India’s internal security framework from within. This is how manipulated voter rolls can indirectly shape national security decisions and compromise anti-terror and anti-smuggling efforts.
• Drain on National Resources & Welfare Systems: When governments are influenced by fake or illegal voters, public funds may be diverted to build vote banks instead of serving genuine citizens. Welfare schemes and subsidies get misdirected towards non-citizens, placing pressure on national finances. Illegal voter blocs may advocate for policies that encourage further infiltration or settlement. This not only undermines socioeconomic stability but also weakens the nation’s long-term economic security. Over time, resource diversion becomes a structural threat to India’s national resilience.

International best practices for electoral protection

Drawing from global standards, protecting elections requires balanced, transparent approaches. The OSCE’s guidelines emphasise security throughout cycles, including impartial administration and proportional safeguards against fraud without curtailing access. International IDEA emphasises multi-stakeholder approaches to combating disinformation, as in France’s civil society collaborations, using human rights lenses to avoid curbing speech.

UNODC principles limit restrictions on expression, mandate due process for content removal, and prohibit blanket blocks. Post-election audits, according to IFES, build credibility; the U.S. ‘s $380 million 2018 fund for technology upgrades exemplifies cybersecurity playbooks. The Integrity Institute’s “three Ps” (policy, process, protocol) standardises risk periods. Hybrid CoE reports advocate legislative updates to address AI-related threats. India can adopt these: enhance transparency via public audits, foster public-private AI defences, and ensure inclusive voter access.

Institution	Key Document/Initiative	Core Principles/Tools	Applications
OSE	Guidelines for Public Security Providers in Elections	Neutral security forces, proportionate restrictions, transparency across the electoral cycle	Impartial administration, public result posting
International IDEA	Protecting Elections & Risk Management in Elections	Multi-stakeholder risk forums, human-rights framed counter-disinformation	Media literacy, Senegal projects.
UN/UNODC	ICCPR standards & online expression guidance	Legal, necessary, proportionate restrictions; due process for content removal	No blanket blocks, impact assessments.
IFES	Elections and Cybersecurity Reference Document	Risk-based tech approach, post-election audits, layered mitigation	Builds public trust via verifiable results.
US Funding	2018 Federal Grants ($380M)	Cybersecurity upgrades, paper ballots, post-election audits	State-level system improvements.

Constitutional foundations: Free and fair elections as basic structure

The basic structure doctrine, propounded by the Supreme Court of India, holds that certain fundamental features of the Constitution cannot be amended or destroyed by Parliament, even though constitutional amendments under Article 368. This doctrine ensures the preservation of the Constitution’s core identity and democratic ethos.

Free and fair elections are recognised as an essential component of this basic structure. They form the bedrock of India’s democratic framework, ensuring that the will of the people is reflected through periodic, transparent, and unbiased electoral processes. The Preamble declares India a “Sovereign Socialist Secular Democratic Republic,” and democracy inherently requires elections that are free from coercion, manipulation, or undue influence.

Origin of the Basic Structure Doctrine

The doctrine originated in Kesavananda Bharati v. State of Kerala8, where a 13-judge Bench (by a 7:6 majority) ruled that Parliament’s amending power is limited and cannot alter the Constitution’s basic structure. While the case primarily concerned property rights and land reforms, it laid the foundation by identifying features such as the supremacy of the Constitution, the rule of law, and the separation of powers as unamendable.1

Elevation of Free and Fair Elections to Basic Structure

The explicit inclusion of free and fair elections as part of the basic structure came in Indira Nehru Gandhi v. Raj Narain9. This case arose from allegations of electoral malpractices against Prime Minister Indira Gandhi in the 1971 elections. The Allahabad High Court invalidated her election, prompting the 39th Constitutional Amendment (inserting Article 329A), which sought to place the election of the Prime Minister beyond judicial review.

A five-judge Bench struck down Clause (4) of Article 329A10 as unconstitutional, holding that it violated the basic structure by undermining free and fair elections, the rule of law, judicial review, and equality. The Court observed that democracy is a core feature, and free and fair elections are indispensable to it, as they ensure accountability and prevent arbitrary power.

This was reaffirmed in subsequent cases:

Kihoto Hollohan v. Zachillhu (1992)11: A Constitution Bench upheld the anti-defection law but struck down the provision barring judicial review, stating: “Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy.”

Mohinder Singh Gill v. Chief Election Commissioner (1978)12: The Court emphasised the Election Commission’s plenary powers under Article 324 to ensure free and fair elections, describing democracy as a basic feature where elections must reflect the true will of the people without vitiation.4

Supporting Judicial Developments

The Supreme Court has further strengthened electoral integrity through measures ensuring transparency and voter empowerment:

Union of India v. Association for Democratic Reforms (2002) 13: Voters have a fundamental right under Article 19(1)(a) (freedom of speech and expression) to know candidates’ antecedents (criminal records, assets, liabilities, and education), as informed choice is vital for free and fair elections.

People’s Union for Civil Liberties (PUCL) v. Union of India (2013) (NOTA case)14: Introducing the “None of the Above” option enhances voter expression and promotes cleaner politics, reinforcing that free and fair elections include the right to reject candidates without fear.

These judgments collectively affirm that any law or amendment undermining electoral fairness, such as a lack of transparency, voter coercion, or exclusion from scrutiny, violates the basic structure. In essence, free and fair elections are not merely procedural but constitutional imperatives that safeguard India’s democratic republic against erosion.

IX. Special Intensive Revision (SIR)

Article 324 of the Constitution of India and Section 21(3) of the Representation of the People Act, 1951, confer on the Election Commission of India (ECI) the power to revise electoral rolls in any state without prior notice or permission from any authority. The ECI undertook SIR (Special Intensive Revision) to ensure that all eligible voters are enrolled in the electoral rolls and that no ineligible persons are listed as voters. Since 1951, intensive revisions have been held 13 times. On 27th October 2025, Chief Election Commissioner Gyanesh Kumar announced the SIR process to be conducted in 9 states and 3 UTs15. Post the conclusion of SIR in Bihar, the ECI began preparations for phase II from 4th November to 4th December, conducting house-to-house enumeration. Furthermore, the draft electoral rolls were published on 9th December. The third and current phase began on 9th December and will last till 8th January, marking the end of the claims and objections period. This will be followed by the notice phase, which will cover hearings and verifications from 9th January to 31st January. Finally, the publication of the final electoral rolls will take place on 7th February, thus concluding the SIR. On December 9th 2025, the SC was asked whether the ECI may adopt an inquisitorial approach to determine whether a person is a citizen by requesting documents, or whether its powers are limited to verifying an elector’s age and residence. The SC held that the EC’s powers of supervision under Article 324 must be exercised only in accordance with constitutional norms of fairness and Article 14, which ensures equality before the law16.

X. CONCLUSION

Elections are the foundation of India’s democratic identity. Protecting them is not an academic exercise; it is a national duty. As the nature of political manipulation evolves, so must the laws, institutions and practices that safeguard the voting process. The BNS marks a historical step toward aligning India’s legal system with modern threats. Yet laws alone cannot protect democracy vigilance, institutional integrity and informed citizens must work together.

To protect the integrity of elections, India must develop a comprehensive defence doctrine that addresses emerging technological and cyber threats holistically. Such a framework should include establishing a national deepfake verification unit, mandating watermarking of AI-generated content, and strict regulation of political advertising on social media platforms. It should further provide for enhanced cyber monitoring mechanisms, regulation of political data analytics, and robust restrictions on foreign funding to prevent external interference. Equally important are compulsory digital literacy campaigns to equip voters to identify misinformation, along with improved institutional coordination among the Election Commission of India, CERT-In, and intelligence agencies. Collectively, these measures would complement the provisions of the Bharatiya Nyaya Sanhita and create a coherent, comprehensive framework for safeguarding electoral democracy.

Ultimately, the protection against election-related crimes is not the responsibility of any single institution. It is a shared constitutional obligation of Parliament to legislate wisely, of courts to enforce fearlessly, of institutions to act independently and of citizens to remain vigilant. In safeguarding the sanctity of the vote, India safeguards the Republic itself. In a democracy as vast and diverse as India, protecting elections is to protect the Constitution, the rule of law, and the collective future of the nation.

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