Presidential Poll: what is undue influence?

Ms.Pratibha Patil’s candidature has led to intense polarisation of views across the political spectrum, mired as she is in a number of unseemly controversies. Today’s Telegraph carries an article by Swapan Dasgupta advising the Congress to withdraw her before the nomination closes tomorrow afternoon, and that by admitting its mistake in not screening her background adequately, the party can only increase its stature in the eyes of the public. Arun Shourie’s quickie, distributed by the BJP, claims to document most of the allegations against her.
Another article in Indian Express by Dipankar raises important questions of dilemma for all the parties.
It cannot be correctly and justly contended that Ms.Patil deserves to be a Governor or a Minister, but not the President of the Country in view of the allegations. I do not think that the office of the President is placed on a higher pedestal in our Constitution, as compared to other offices in terms of the qualifications for the President. The allegations against her may indeed be serious. But the allegations are not sufficient to disqualify her from contesting.
The anxiety of those wanting to stop her from reaching Raisina Hill seems to be to avoid the embarrassment of subjecting the First Citizen to investigations and inquiries of the sort that may be required later. It is not easy to dismiss such anxieties.
In the 1997 Presidential elections, the Election Commissioner, G.V.G.Krishnamurty not only published a discussion paper on the effect of whips on the free and fair elections, but went on television, explaining his stand, in the context of the E.C. refusing to take an official stand on the issue. He cited Section 171C of the Indian Penal Code (dealing with undue influence over the free exercise of electoral right) and S.123(2) of RPA, 1951. The term ‘whip’ according to him, has its origin to the whippers-in-people who keep the hounds in order at fox-hunting meets. Parliamentary whips are supposed to be similar disciplinarians controlling the pack of MPs in their party. The metaphor is borrowed from the hunting field and its Parliamentary application can be traced to Burke who in a debate in the House of Commons described how the King’s Ministers had made great efforts to bring their followers together, how they had sent for their friends to the north and to Paris, whipping them in”.
Under the Tenth Schedule to the Constitution, any Member defying the whip, invites the penal provisions of the Schedule, that is, disqualification. But it is limited in its operation in that its provisions are attracted only in relation to voting at proceedings inside Parliament and State Legislatures. But the election to the office of President is a non-legislative function performed by Members of Parliament and State Legislatures outside the Parliamentary /legislative proceedings. That is why even the latest press note of the E.C. cites the Supreme Court’s judgment in In re: Presidential Election, 1974 (AIR 1974 SC1682 AT 1689) that “The Electoral College as mentioned in Article 54 is independent of the Legislatures mentioned in Art.54. The electoral college compendiously indicates a number of persons, holding the qualifications specified in the Article to constitute the electorate for the election of the President and to act as independent electors. (italics mine) Thus Krishnamurthy said if a member of Parliament or a state legislature defied the whip issued by his or her political party at an election to the office of President, he or she may not attract the penal provisions of the 10th schedule, but the dissenters would render themselves liable to disciplinary action, including expulsion, if the party High Command has ‘reliable information’ about a Member defying a Whip. Acting as independent electors, would mean, acting without any undue influence from anybody. In the past Presidential elections, a written whip indicating that a voter of an electoral college must vote in favour of a person and should not vote or give a second preference to any other candidate had been issued till 1992. Both in 1997 and 2002 elections, whips were not issued thanks to Krishnamurthy’s intervention.
The Whip not only comes within the definition of undue influence but destroys the very concept of voting by proportional representation through single transferable vote, which means preferences are required to be given by the voter.
In the Presidential election, there is no party candidate nominated by the party. There are no symbols. So, there can be no cross-voting at least in the legal sense. There can be no independent candidate, as the BJP has proclaimed the Vice-President, Bhairon Singh Shekhawat as. Although there will be no Whip in this election, as the political parties had agreed not to issue one after 1997, it will be interesting to watch whether the parties seek to exercise undue influence over the electoral college, by other means, in order to circumvent the problem of issuing a overt Whip.
Having said that, I need to point out that the Opposition’s campaign against Ms.Patil may equally be construed as bordering on undue influence. In the 1969 Presidential election when Indira Gandhi gave the call for conscience vote, resulting in the election of V.V.Giri, the Supreme Court held in Shiv Kripal Singh v. V.V.Giri (AIR 1970 SC 2097) that there can be undue influence even as the elector goes through the mental process of weighing merits and demerits of candidate and makes his choice. The SC held in that case that a pamphlet which contained some scurrilous allegations against one of the candidates at the election did come within the definition of undue influence as it effected the minds of electors. However, the election of the returned candidate was saved as it could not be proved at the trial that the said pamphlet was published or distributed with the connivance or consent of the returned candidate or it materially affected the result of the election. This defence may not be available to the NDA and friends of Shekhawat, as they are openly campaigning in his favour. An unsubstantiated, and unverified allegation against Ms.Patil, therefore, could mean undue influence. A whip – whether overt or covert – is also repugnant to the principle of secret ballot, a key feature of the Presidential election. It is possible to contend that cross-voting could not be detected and punished by political parties because of secret ballot, and therefore, the fear of undue influence may be misplaced; but this argument misses the point that at the threshold stage itself the elector’s independence is sought to be compromised by the party’s directive to vote in a particular way. The elector would be reluctant to defy the party whip, (in its absence, a clear signal from the party High Command, which may be express or implied) even if the punishment for its violation may not be all that clear.
UPDATE: In an earlier version of this post, I had suggested that parties had issued Whips in Presidential elections earlier, and in this election also, they will do so. I stand corrected. Parties had stopped issuing Whips since the 1997 Presidential elections, after an all-party agreement, deferring to the intervention of the then Election Commissioner, G.V.G.Krishnamurthy. I have accordingly edited the previous post. I am thankful to Mr.G.V.G.Krishnamurthy, with whom I had the privilege of discussing this issue today, for correcting me with regard to the facts.