The Bihar State Election Authority Act, 2008
Bihar Act 14 of 2008
(b) 'Co-operative Society' means Co-operative Society as defined under Bihar Co-operative Societies Act, 1935 and Co-operative Societies defined under Bihar Self Supporting Co-operative Societies Act, 1996 (Bihar Act 2,1997).
(c) 'Shiksha Samiti' means Shiksha Samiti by whatever name it is known for the various categories of government schools in the State of Bihar.
(d) 'State Government' means Government of Bihar.
(e) 'Registrar', Co-operative Society means Registrar as defined under Bihar Co-operative Societies Act, 1935 and Bihar Self Supporting Co-operative Societies Act, 1996.
(f) 'District Magistrate and Collector' means District Magistrate and Collector of a particular district so notified by the State Government.
(g) 'Sub-divisional Magistrate' means Sub-divisional Magistrate appointed and notified by the State Government for a particular sub-division.
(h) 'Commissioner' means Commissioner of a division appointed and notified by the State Government.
(i) 'Managing Committee' means Managing Committee as is required to be constituted for administering any Institution/Establishment/Body including Co-operative Society, by whatever name it may be known, required to be constituted under any Act, Rule, Order, Notification or Scheme of the State Government.3. Constitution of State Election Authority. - (1) The State Government, on and from appointed day shall constitute an Election Authority, which shall have jurisdiction to conduct election of any Managing Committee in the manner provided in this Act and rules framed thereunder. (2) The State Election Authority shall be headed by a Chief Election Officer and for discharge of his duties and responsibilities may be assisted by as many Deputy Chief Election Officers as the State Government may by notification appoint. (3) Chief Election Officer may either be serving or a retired officer, who shall have not less than 10 years of administrative experience out of which last three years must be in the rank and status of Secretary to the State Government. (4) The Chief Election Officer shall be appointed for a tenure of five years or uptill the age of seventy years, whichever is earlier: Provided that tenure of five years shall be renewable at the option of the State Government uptill the age of seventy years: Provided also that State Government may prematurely terminate the tenure of the Chief Election Officer and in the event of premature termination of the tenure, he shall be entitled to compensation equivalent to three months pay and allowances and no other allowance shall be admissible. 4. Superintendence, Direction and Control. - (1) The Election Authority shall have power, authority and jurisdiction for exercising superintendence, direction and control of the preparation of electoral rolls for, and conduct of all elections to bodies such as Co-operative Societies, Shiksha Samiti or any other institution, organization, establishment, which may be entrusted to it by the State Government. (2) The conditions of service other than tenure of the Chief Election Officer of the Election Authority shall be such as the State Government may by rules determine. (3) The Government shall, when so requested by the Election Authority, make available to it such officers and staff as may be necessary for discharge of functions conferred on it under this Act. 5. Administrative machinery for conduct of election. - (1) The State Government shall, when so required, for the conduct of election by the Authority, make available to it, the services of officers and staff in required numbers. (2) The Election Authority, for conduct of election shall designate or nominate District Magistrate, Sub-Divisional Magistrate, Block Development Officer, Circle Officer or such other officer as it may deem fit and proper as Election Officer for election of each institution, organization, establishment and may even designate one or more officer as Deputy Election Officer for assistance of Election Officer. (3) The State Election Authority may nominate an observer, who shall be an officer of the State Government to watch the conduct of election or elections in an Institution/ establishment/ organization or group of such bodies and to perform such other functions as may be entrusted to it by the Election Authority. 6. Electoral offences. - (1) Promoting enmity between classes in connection with election. - Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes or the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. (2) Prohibition of public meetings during period of forty-eight hours ending with hour fixed for conclusion of poll. - (1) In any polling area during the period of forty-eight hours ending with the hour fixed for the conclusion of the poll for any election in that polling area, no person shall-
(a) convene, hold, attend, join or address any public meeting or procession in connection with an election; or
(b) display to the public any election matter by means of cinematograph, television or other similar apparatus; or
(c) propagate any election matter to the public by holding, or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto.Any person who contravenes the provisions of sub-section (2) shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. Explanation. - In this section, the expression "election matter" means any matter intended or calculated to influence or affect the result of any election. (3) Disturbance at election meetings. - (i) Any person who at a public meeting to which this section applies acts, or incites others to act, in a disorderly manner for the purpose of preventing the transaction of the business for which the meeting was called together, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees or with both. An offence punishable under clause (i) shall be cognizable. Explanation. - This section applies to any public meeting of a political character held in any constituency between the date of the issue of a notification under this Act calling upon the constituency to elect a member or members and the date on which such election is held.
(ii) If any police officer reasonably suspects any person of committing an offence under clause (i), he may, if requested so to do by the Election Authority or any officer authorized by it require that person to declare to him immediately his name and address and, if that person, refuses or fails so to declare his name and address, or if the police officer reasonably suspects him of giving a false name or address, the police may arrest him without warrant.(4) Restrictions on the printing of pamphlets, posters, etc. - (i) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and address of the printer and the publisher thereof.
(ii) No person shall print or cause to be printed any election pamphlet or poster-
(a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate; and
(b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document.-
(i) Where it is printed in the capital of the State, to the State Election Authority, and
(ii) In any other case, to the District Magistrate of the district in which it is printed.
(a) any process for multiplying copies of a document, other than copying it by hand, shall be deemed to be printing and the expression "printer" shall be construed accordingly; and
(b) "election pamphlet or poster" means any printed pamphlet, handbill or other document distributed for the purpose of promoting or prejudicing the election of a candidate or group of candidates but does not include any handbill, placard or poster merely announcing the date, time, place and other particulars or an election meeting or routine instructions to election agents or workers.
(iii) Any person who contravenes any of the provisions of clause (i) or clause (ii) shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.(5) Maintenance of secrecy of voting. - (i) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any person any information calculated to violate such secrecy.
(ii) Any person who contravenes the provisions of clause (i) shall be punishable with imprisonment for a term which may extend to three months or with fine or with both.(6) Officers etc., at elections not to act for candidates or to influence voting. - (i) No person who is Election Officer or Returning Officer, or an Assistant Returning Officer, or a Presiding or Polling Officer at an election, or an officer or clerk appointed by the Returning Officer or the Presiding Officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of prospects of the election of a candidate.
(ii) No such person as aforesaid, and no member of a police force, shall endeavour.-
(a) to persuade any person to give his vote at an election, or
(b) to dissuade any person from giving his vote at an election, or
(c) to influence the voting of any person at an election in any manner.
(iii) Any person who contravenes the provisions of clause (i) or clause (ii) shall be punishable with imprisonment which may extend to six months or with fine or with both.
(iv) An offence punishable under clause (iii) shall be cognizable.(7) Prohibition of canvassing in or near polling stations. - (i) No person shall, on the date or dates on which a poll is taken at polling station, commit any of the following acts within the polling station or in any public or private place within a distance of one hundred meters of the polling station, namely
(a) canvassing for votes; or
(b) soliciting the vote of any elector; or
(c) persuading any elector not to vote for any particular candidate; or
(d) persuading any elector not to vote at the election; or
(e) exhibiting any notice or sign (other than an official notice) relating to the election.
(ii) Any person who contravenes the provisions of clause (i) shall be punishable with fine which may extend to five hundred rupees, by the Magistrate having the local jurisdiction.
(iii) An offence punishable under this sub-section shall be cognizable.(8) Penalty for disorderly conduct in or near polling stations. - (i) 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 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.
(ii) Any person who contravenes, or willfully aids or abets the contravention of, the provisions of clause (i) shall be punishable with imprisonment which may extend to three months or with fine or with both.
(iii) 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 person, and thereupon the police officer shall arrest him.
(iv) Any police officer may take such steps, and use such force, as may be reasonably necessary for preventing any contravention of the provisions of clause (i) and may seize any apparatus used for such contravention.(9) Penalty for misconduct at the polling station. - (i) Any person who during the hours fixed for the poll at any polling station misconducts himself or fails to obey the lawful directions of the presiding officer may be removed from the polling station by the presiding officer or by any police officer on duty or by any person authorized in this behalf by such presiding officer.
(ii) the powers conferred by clause (i) shall not be exercised so as to prevent any elector who is otherwise entitled to vote at a polling station from having an opportunity of voting at that station.
(iii) if any person who has been so removed from a polling station re-enters the polling station without the permission of the presiding officer, he shall be punishable with imprisonment for a term which may extend to three months or with fine or with both.
(iv) An offence punishable under clause (iii) shall be cognizable.(10) Penalty for failure to observe procedure for voting. - If any elector to whom a ballot paper has been issued, refused to observe the procedure prescribed for voting the ballot paper issued to him shall be liable for cancellation. (11) Penalty for illegal hiring or procuring of conveyance at elections. - If any person is guilty of any such corrupt practice as is specified in clause (vi) of Section-14 at or in connection with an election, he shall be punishable with imprisonment which may extend to three months and with fine. (12) Breaches of official duty in connection with election. - (i) If any person to whom this section applies is without reasonable cause guilty of any act or omission in breach of his official duty, he shall be punishable with fine which may extend to five hundred rupees.
(ii) An offence punishable under clause (i) shall be cognizable.
(iii) No suit or other legal proceeding shall lie against any such person for damages in respect of any such act or omission as aforesaid.
(iv) The persons to whom this section applies are the Election Officers, Returning Officers, Assistant Returning Officers, Presiding Officers, Polling Officers and any other person appointed to perform any duty in connection with the receipt of nominations or withdrawal of candidates, or the recording or counting of votes at an election, and the expression "official duty" shall for the purpose of this section be construed accordingly, but shall not include duties imposed otherwise than by or under this Act.(13) Penalty for Government servants for acting as election agent, polling agent or counting agent. - If any person in the service of the Government acts as an election agent or a polling agent or a counting agent of a candidate at an election, he shall be punishable with imprisonment for a term which may extend to three months, or with fine, or with both. (14) Prohibition of going armed to or near a polling station. - (i) No person, other than the Returning Officer, the Presiding Officer, any police officer and any other person appointed to maintain peace and order, at a polling station who is on duty at the polling station, shall, on a polling day, go armed with arms, as defined in the Arms Act, 1959 (54 of 1959), of any kind within the neighbourhood of a polling station.
(ii) If any person contravenes the provisions of clause (i), he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
(iii) Notwithstanding anything contained in the Arms Act, 1959 (54 of 1959), where a person is convicted of an offence under this section, the arms as defined in the said Act found in his possession shall be liable to confiscation and the licence granted in relation to such arms shall be deemed to have been revoked under Section 17 of that Act.
(iv) An offence punishable under clause (ii) shall be cognizable.(15) Removal of ballot papers from polling station to be an offence. - (i) Any person who at any election takes, or attempts to take, a ballot paper out of a polling station, or willfully aids or abets the doing of any such act, shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five hundred rupees or with both.
(ii) If the Presiding Officer of a polling station has reason to believe that any person is committing or has committed an offence punishable under clause (i), such officer may, before such person leaves the polling station, arrest or direct a police officer to arrest such person and may search such person or cause him to be searched by a police officer:Provided that when it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency.
(iii) Any ballot paper found upon the person arrested on search shall be made over for safe custody to a police officer by the Presiding Officer, or when the search is made by a police officer, shall be kept by such officer in safe custody.
(iv) An offence punishable under clause (i) shall be cognizable.(16) Offence of booth capturing. - Whoever commits an offence of booth capturing shall be punishable with imprisonment for term which shall not be less than one year but which may extend to three years and with fine, and where such offence is 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 three years but which may extend to five years and with fine; Explanation. - (1) For the purposes of this clause "booth capturing" includes, among other things, all or any of the following activities, namely:
(a) seizure of a polling station or a place fixed for the poll by any person or persons, 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 or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and preventing others from free exercise of their right to vote;
(c) coercing or intimidating or threatening directly or indirectly any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote;
(d) seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes;
(e) doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate.(17) Other offences and penalties therefor. - (i) A person shall be guilty of an electoral offence if at any election he-
(a) fraudulently defaces or fraudulently destroys any nomination paper; or
(b) fraudulently defaces, destroys or removes any list, notice or other document affixed by or under the authority of a Returning Officer; or
(c) fraudulently defaces or fraudulently destroys any ballot paper or the official mark on any ballot paper or any declaration of identity or official envelope used in connection with voting by postal ballot; or
(d) without due authority supplies any ballot paper to any person or receives any ballot paper from any person or is in possession of any ballot paper; or
(e) fraudulently puts into any ballot box anything other than the ballot papers which he is authorized by law to put in; or
(f) without due authority destroys, takes, opens or otherwise interferes with any ballot box or ballot papers therein used for the purposes of the election; or
(g) fraudulently or without due authority, as the case may be, attempts to do any of the foregoing acts or wilfully aids or abets the doing of any such acts.
(ii) 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.
(iii) For the purposes of this section, a person shall be deemed to be on official duty if his duty is to take part in the conduct of an election or part of any election including the counting of votes or to be responsible after an election for the used ballot papers and other documents in connection with such election, but the expression "official duty" shall not include any duty imposed otherwise than by or under this Act.
(iv) An offence punishable under sub-section (ii) shall be cognizable.7. Grant of paid holiday to employees on the day of poll. - (1) Every person employed in any business, trade, industrial undertaking or any other establishment and entitled to vote at an election to the body of the State shall, on the day of poll, be granted a holiday. (2) No deduction of the wages of any such person shall be made on account of a holiday having been granted in accordance with sub-section (1) and if such person is employed on the basis that he would not ordinarily receive wages for such a day, he shall nonetheless be paid for such day the wages he would have drawn had not a holiday been granted to him on that day. (3) If an employer contravenes the provisions of clause (1) or clause (2), then such employer shall be punishable with fine which may extend to five hundred rupees. (4) This section shall not apply to any elector whose absence may cause danger or substantial loss in respect of the employment in which he is engaged. 8. Account of Election Expenses and maximum thereof. - (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditures in connection with the election, incurred or authorized by him or by his election agent between the dates on which he has been nominated and the date of declaration of the result thereof, both dates inclusive. (2) The account shall contain such particulars, as may be prescribed. (3) The total of said expenditure shall not exceed such amount as may be prescribed. 9. Disqualification on failure to lodge account of election expenses. - If the State Election Authority is satisfied that a person-
(a) has failed to lodge an account of election expenses within the time and manner required by or under this Act and
(b) has no good reason or justification for the failure, the State Election Authority shall by order declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.10. Election Petition. - (1)(i) The election to any office of a body shall not be called in question except by an election petition as prescribed: Provided that if an election to any office of a body is under dispute, the election petition shall lie before such authority as is prescribed under the Act or Rule regulating such body or where administration and functioning of such body is not regulated by any statutory provision, before such Authority, which the State Government may prescribe by issuance of notification. (2) Parties to the petition. - A petitioner shall join as a respondent to this petition-
(a) Where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) Any other candidate against whom allegations of any corrupt practice are made in the petition.11. Bar to interference by Courts in electoral matters. - Notwithstanding anything contained in this Act-
(a) The validity of any order relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made shall not be called in question in any court;
(b) No election to any body shall be called in question except by an election petition presented to the Prescribed Authority under this Act.12. Grounds for declaring election to be void. - (1) Subject to the provisions of sub-section (2) if the Prescribed Authority is of opinion-
(a) that on the date of his election, a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act; or
(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or
(c) that any nomination paper has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination; or
(ii) by any corrupt practice committed in the interests of the returnee candidate by an agent; or
(iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or
(iv) by any non-compliance with the provision of this Act or of any rules or orders made thereunder; the Prescribed Authority shall declare the election of the returned candidate to be void.(2) If in the opinion of the Prescribed Authority, any agent of a returned candidate has been guilty of any corrupt practice, but the Prescribed Authority is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without the consent of the candidate;
(b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and
(c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Prescribed Authority may decide that the election of the returned candidates is not void.13. Grounds on which a candidate other than the returned candidate may be declared to have been elected. - (1) If any person who has filed an election petition has, in addition to calling in question the election of the returned candidate, claims a declaration that he himself or any other candidate has been duly elected and the Prescribed Authority is of opinion-
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidates would have obtained a majority of the valid votes, the Prescribed Authority shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.(2) The decision of the Prescribed Authority shall be final. 14. Corrupt Practices. - The following shall be deemed to be corrupt practices for the purposes of this Act-
(i) bribery as defined in clause (1) of section 123 of the Representation of the People Act, 1951 (Central Act 48 of 1951), for the time being in force;
(ii) undue influences as defined in clause (2) of the said section for the time being in force;
(iii) that appeal by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to national symbols such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for pre-judicially affecting the election of any candidate;
(iv) the promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the election of that candidate to or for pre-judicially affecting the election of any candidate;
(v) the publication by a candidate or his agent or by any other person with the consent of candidate or his agent of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidature being statement reasonably calculated to prejudice the prospects of that candidates election;
(vi) the hiring or procuring whether on payment or otherwise, any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his agent, or the use of such vehicle or vessel for the free conveyance of any voter (other than the candidate himself, the member of his family or his agent) to or from any polling station provided in accordance with the rules made under this Act:Provided that the use of any public transport vehicle or vessel or railway carriage by any voter at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause. Explanation. - In this clause, the word "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise whether used for the drawing of other vehicles or otherwise.
(vii) the holding of any meeting at which intoxicating liquors are served;
(viii) the issuing of any circular, placard or poster having reference to the election which does not bear the name and address of the printer and publisher thereof;
(ix) any other practice which the Government may by rule specify to be a corrupt practice.15. Order as corrupt practices. - The corrupt practices referred to under this Act shall entail disqualification for membership of any body for a period of five years counting from the date on which the finding of the Prescribed Authority as to such practices takes effect under this Act. 16. Power of Government to make rules. - (1) Without prejudice to the power of State Government to make Rules, generally for the purpose of carrying out objects of this Act, the State Government may by issuance of notifications in the gazette, make rules for the following purposes -
(a) Regulating procedure of functioning of the election authority;
(b) Appointment, discipline and appeal and condition of service of employees and staff of the authority;
(c) Appointment, power and jurisdiction of observers;
(d) Prescribing authority before whom election petition may lie;
(e) Procedure including fee for filing election petition;
(f) Any other matter, which is necessary or incidental for carrying out of the duties and responsibilities of the Authority.(2) A Rule under this Act may be made with retrospective effect and when such a Rule is made the reasons for making the rule shall be specified in a statement and laid before both Houses of the State Legislature. Subject to any modification made under this Act, every Rule made under this Act shall have effect as if enacted in this Act. (3) In making a Rule under this section the Government may provide that a person guilty of breach thereof shall, on conviction, be punished with fine which may extend to five hundred rupees and where the breach is a continuing one with further fine which may extend to a maximum of twenty five rupees for every day on and after the first day on which the breach continues. 17. Overriding effect of the Act. - (1) Notwithstanding anything contained in Bihar Co-operative Societies Act, 1935, Bihar Self Supporting Co-operative Societies Act, 1996, or any other Act, Rule, Order, Scheme, providing for election to any Institution/ Organization/ Establishment, which has been entrusted to the Election Authority election to elect Members/ Office Bearers/Managing Committee on and from the constitution of Election Authority shall be held only under the superintendence, control and direction of the State Election Authority and to this extent this Act shall have overriding effect on provisions contained in any other Act, Rule, Order, Notification, Scheme as if the provision contained therein does not exist. (2) Elections to Institutions/ Organizations/ Establishments, which are to be conducted by the State Election Authority by order of State Government shall on and from commencement of this Act shall be conducted only in the manner prescribed under this Act and Rules framed herein.