Representation of the People Act, 1951 | Electoral offences

Section 128: Maintenance of Secrecy of Voting

Section 128 of the Representation of the People Act, 1951 requires election personnel and other persons performing duties in recording or counting votes to protect the secrecy of voting. It also specifies an exception for elections to the Council of States and prescribes a penalty for contravention.

At a glance: The general duty applies to officers, clerks, agents and others connected with recording or counting votes. A violation may attract imprisonment of up to three months, a fine, or both, subject to the statutory exception.

Text and meaning of Section 128

Section 128(1): Duty to maintain secrecy

(1) 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 authorised by or under any law) communicate to any person any information calculated to violate such secrecy:
Provided that the provisions of this sub-section shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States.

The obligation has two parts: persons covered by the section must preserve the secrecy of votes and actively assist in preserving it. They must not disclose information capable of compromising that secrecy, unless the communication is authorised by or under law. The proviso expressly excludes persons performing the specified duties in elections to the Council of States from subsection (1).

Section 128(2): Punishment for violation

(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to three months or with fine or with both.

The punishment is a maximum of three months' imprisonment, or a fine, or both. The provision does not prescribe a fixed minimum imprisonment or a fixed fine amount.

Who must protect the secrecy of voting?

Section 128 covers every officer, clerk, agent or other person performing duties in connection with the recording or counting of votes. This may include polling and counting personnel and agents carrying out such duties. Whether a particular disclosure is unlawful depends on the person's role, the information communicated and whether disclosure was authorised by law.

How Section 128 relates to other election safeguards

Section 128 addresses the confidentiality of voting information during recording and counting. Other provisions of the Act deal with different election offences, including Section 127 (disturbances at election meetings), Section 129 (neutrality of election officers) and Section 130 (canvassing near polling stations).

Frequently asked questions

What is the punishment under Section 128?

Imprisonment extending to three months, a fine, or both, for contravention of subsection (1).

Does Section 128(1) apply to Council of States elections?

No. Its proviso excludes the specified personnel performing those duties in elections to fill seats in the Council of States.

Is every communication about voting prohibited?

No. The prohibition concerns information calculated to violate voting secrecy, and expressly allows communication for purposes authorised by or under law.

Official legal resources

For the current statutory text and election procedures, consult India Code (Government of India) for the Representation of the People Act, 1951, and the Election Commission of India for official election guidance and instructions.

This article explains Section 128 in general terms. The Act, applicable election rules and binding instructions govern individual cases.