Presidential Polls : Part III – Similarities between Shiv Kripal Singh case and the present one

Responses by Mr.Arun Thiruvengadam and Mr.Dilip (in the comments section to my previous post) made me further think about the Shiv Kripal Singh case. Here are, what I think, some similarities.

Arun correctly points out that in Shiv Kripal Singh case, the Supreme Court found the allegations against Sanjeeva Reddy, the losing candidate, fictitious and completely baseless. But as Dilip has pointed out, and the reading of the entire judgment shows, we are unable to know how the SC arrived at this conclusion. May be the pamphlet being distributed then was not backed by documentation or evidence.

In Ms.Patil’s case, if one follows the media coverage closely, one can see that Abhishek Singhvi, the Congress spokesperson has disputed even the facts of the allegations against her, the amount of money involved in the transactions alleged against her brother, and whether the borrowers (Ms.Patil’s kin) have returned the loan amount to the bank, and when. May be the Congress wants to wait till the last date for the nomination is over, to properly answer the allegations against her. Why should we insist – as many of the commentators seem to be in a such a hurry as if all would be lost – that the Congress must answer all the charges even before the nominations close. There is a campaign period ahead, when all these allegations will again be raised and answered. There have been good presidents, and bad presidents. In certain cases, bad presidents have turned out to be good presidents because of circumstances. The so-called good presidents, to begin with, did not live upto the expectations.

In Ms.Patil’s case, there is a suspicion that she must have had a hand in the number of allegations against her kith and kin. Now, this suspicion has to be substantiated. Even the complainants in those cases have not alleged this. Being the highest office, the Presidency does not offer any immunity to the incumbents from cases which have to do with her actions in her personal capacity, before she assumed the office.

Take the pamphlets against Sanjeeva Reddy. The allegations might have been true or false. The SC probably found the pamphlets issued by anonymous persons as lacking evidentiary value. None had the courage to provide the evidence, probably. The SC did not explain why it found the pamphlet baseless and fictitious. Had the evidence subsequently come up, and if Sanjeeva Reddy had been elected as President in 1969, would he have enjoyed any immunity? No. Therefore, there is a flawed assumption in the case of Ms.Patil, that she would interfere with the cases faced by her kith and kin, and therefore, she should not stand for the Presidency.

If you read that judgment carefully, the SC did not want to go into the allegations in the pamphlet, to determine whether they had any basis, or even prima facie raised any suspicion of wrong doing. It simply said even the dissemination of such a pamphlet amounted to undue influence because it cast aspersions on the integrity of the candidate. It is not for the pamphlet-distributor to come up with hard evidence to convince the Court. The truth or falsehood of the pamphlet must have been already established, so that there can be no possibility of a debate on it. The crucial paragraph in that judgment is this:

“ It seems to us that these allegations are covered under Section 171-C. even if they may be covered under Section 171G. But we are not concerned with Section 171G because that section has not been made a ground for setting aside an election. We are only concerned with Section 171C. Be that as it may, we cannot add another subsection to Section 171C, as follows :A false statement of fact in relation to the personal character or conduct of any candidate even if made with the intention of interfering with the electoral right shall not be deemed to be interference within the meaning of this section.”

In other words, the SC had two sections before it: Sections 171C and 171G. Section 171C (1) says: Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. This sub-section is very general, and the subsequent sub-sections (2) and (3) (which are not relevant to this case) have been added without prejudice to sub-section (1).

Section 171G says whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.

As the Supreme Court’s clarification shows, S.171 G is not a ground of attack in that case. Under S.171C also, the court was in no mood to exempt false statements of fact from the purview of “voluntary interference with the free exercise of right”.

In Ms.Patil’s case, it is premature to say whether S.171 G would be relevant. But S.171C? What are the exemptions under S.171C?
S.171C (2) (a) and (b) is not attracted in Ms.Patil’s case. Nor was it attracted in Shiv Kripal Singh case. These refer to some specific illustrations of interference (Readers are requested to refer to IPC), which are not exhaustive of the offences to be covered by S.171C (1).

S.171C (3) says a declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section. This sub-section also will not apply to either cases.

In other words, S.171C does not provide for any exceptions apart from this. The crucial question, therefore, to be asked in both the cases, is: whether the allegations amount to “voluntary interference with the free exercise of right” as meant by S.171C (1). The basis of the allegations, whether it is true or not, is not exactly relevant at this stage. It was not relevant to the court in Shiv Kripal Singh case. The mere dissemination of the pamphlet amounted to “voluntary interference with the free exercise of right” to the Court. Therefore, the argument that the allegations may be true, and that there is no effective challenge to the facts established by the allegations cannot come to the aid of Ms.Patil’s critics. The Court in that case was not bothered about the anonymity of the authors of the pamphlet. Had it been concerned about the truth or otherwise of its contents, it could have ordered an inquiry into it to arrive at the truth. It was not concerned even to explain, as it felt the pamphlet so distributed, in its view, appeared to be fictitious and baseless. But it is not this view which determined the outcome of this case.

I agree that the discussion is largely academic, as Ms.Patil would most probably win the contest, and the occasion for the Court to determine whether the allegations materially affected the result (in terms of S.18 of the Presidential and Vice-Presidential Elections Act) of the election may not arise at all. Be that as it may, as the discussion raised the issue whether allegations against Ms.Patil, would come under S.171C (1), which is independent of the Presidential and Vice-President Elections Act, I thought the SC’s ruling in Shiv Kripal Singh would be highly relevant.

To conclude, I repeat what the Supreme Court said in that case with regard to the scope of S.171C(1):
“The legislature has wisely refrained from defining the forms interference may take. The ingenuity of the human mind is unlimited and perforce the nature of interference must also be unlimited.”

Secondly, the SC judgment in the Association of Democratic Rights case, which directed the E.C. to seek and publicise information about the background of the candidates in terms of the right to information of the voters does not include information about allegations and insinuations being faced by the candidate.

1974 AMENDMENT:

S.18 of the Presidential and Vice-Presidential Election Act, 1952 was amended in 1974. The amendment, apart from other things, carried out two major changes in the Act, which are relevant to the present discussion. One is the word connivance was changed as consent in S.18(1) (a). The second important change, which I missed, but which formed the basis of the Shiv Kripal Singh judgment is this: it omitted S.18(1) (b) as it stood in the unamended Act. This sub-section in the unamended Act said as follows:
(b) that the result of the election has been materially affected (i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance….the Supreme Court shall declare the election of the returned candidate to be void. The effect of this amendment would be that the pamphlet against Sanjeeva Reddy, which was the issue in the Shiv Kripal Singh case, is unlikely to be an issue in a similar case. At the most, those who make similar allegations against Presidential candidates in the recent election could be prosecuted under S.171C or S.171G under IPC, and can get away with a punishment of fine, if found guilty. The successful candidate cannot be unseated even if the campaign of undue influence – carried out without the consent of the candidates or his representative – materially affected the results. The discussion in the posts and the comments section, therefore, must be understood in the background of this important change, which I missed earlier.

I stand corrected insofar as the 1974 amendment almost eclipsed the similarity between the Shiv Kripal Singh case and the present campaign, by deleting S.18(1)(b) of the unamended Act. But the similarity with regard to S.171C(1) remains, even though the prospect of the Court declaring the election as void on this ground, if others without the candidates’ consent, are found guilty of this offence, is no longer there. The Supreme Court is mercifully spared of the effort to determine whether the result is materially affected by the undue influence of those who did not have the consent of the candidates. Was this amendment a result of the legislative wisdom that the Shiv Kripal Singh judgment’s reasoning, as Arun argues in the Comments section, is inadequate? But if the plea of implied consent is taken, then perhaps the original objective of the 1952 Act in keeping the Presidential and Vice-Presidential election campaign free from undue influence of any kind, may be given effect to.

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Dilip Rao
Dilip Rao
15 years ago

Dear Venkat,

Thank you for the elaboration. The broad language of 171C does appear to suggest that its scope, while including false statements also covered under 171G, is not limited to it. However, if the mere dissemination of the pamphlet per se amounts to ‘voluntary interference of the free exercise of right’, the implications would be far reaching. I see no difference between distributing pamphlets in the central hall of parliament and newspapers/magazines during the ordinary course of daily life – in both cases, published material is being distributed with an intent to inform and influence the voter (legislators as much as ordinary citizens having access to and reading both). Thus if the former carrying allegations is ‘undue influence’, the latter is too. From that would follow that no individual can make any allegation of any kind in the press, its truthfulness notwithstanding, that may have the effect of casting aspersions on any candidate: that, as is obvious, would have a chilling effect on the press and might even spell the end of informed debate on presidential elections and for that reason, appears to me to be an unreasonable restriction falling foul of the free speech guarantee of Art. 19(1). I doubt that the court actually meant this; if it did, it ought to be treated as no more than dictum. I would think that the pamphlet dissemination would have to be qualified by something more: in the Shiv Kripal Singh case, the fact that the court, for whatever reason, felt that the contents were fictitious (if the court was already convinced of this, that would also explain why it did not ask for an inquiry) could have provided that additional justification for its holding. More broadly, as a principle, I can think of two specific grounds in which the dissemination of such allegations might invoke the sanction of invoke section 171C: (1) as in that case, if the allegations are either known or established to be false or their factual contents cannot be verified (application to Ms. Patil’s case would have to determined by the outcome of some sort of inquiry)(2) if the allegations are presented after some time limit has passed (I suppose presidential election campaigns also are expected to cease a day or two before the voting is held though I am not sure of this) when the voter is denied a reasonable opportunity to examine the contents of the material to determine its value : for example, if someone were to thrust a pamphlet with assorted allegations to a voter on his way to the polling booth, that might be a ground to treat that as a ‘voluntary interference of the free exercise of the electoral right’ (I do not know of the context of the pamphlet distribution but it certainly ought not to apply to Ms. Patil’s case).

From what I remember of the SC order in the Association of Democratic Rights case, it only applied to the Election Commission and limited to the dissemination of certain basic facts pertaining to the candidate or his immediate family’s interactions with official authority: that is only appropriate since there is no good reason for the court or the EC or for that matter, anyone in government, wanting to concern themselves in the ordinary course, with extraneous facts relating to the candidate’s personal or other unofficial matters. But an election campaign for President is much more than those limited dealings he/she may have in/with government. It is about his/her personality, character, opinions, both good and bad, views of others he/she has dealt with even in an unofficial capacity, his/her family and background, etc. – questions that the media must be free to explore to render the exercise meaningful but the EC ought to keep out of. The roles and responsibilities of private parties and official bodies being very different, I do not think the information relating to allegations and insinuations being excluded from the background of candidates to be published officially should be understood to imply, from its silence, the right to censorship of such views and opinions on the ground of ‘undue influence’.

Anonymous
Anonymous
15 years ago

Dear Mr. Erudite

forget pratibha patil, its an easy win: given the numbers your party woman will walk away with it.

what happened to your sense of “moral uprightness” with respect to mayawati going scot free thanks to the congress magnanimity. how come we never heard a word about that from you? surprising that you have not a word to say about a chief minister going scot free because she was willing to sell her votes to elect your president. and your are supposed to be an intellectual?

Dilip Rao
Dilip Rao
14 years ago

Dear Venkat,
I hope I do not sound tedious by returning to this topic one more time. I think I appreciate your views better; we seem to have been on the same page on one thing: that the nature of the content matters and if it is without basis, the penalty of section 171C(1) is attracted by its distribution. The similarity or difference between the two cases appears to turn on the question of how we go about determining the truth or falsehood of the material. Here, you seem to go further and your proposition, as I can tell, seems to be this: all published allegations are to be treated as false until proven otherwise and the burden of proving their truthfulness rests on the one making the allegation. Correct me if I am wrong but that would explain everything you quote in para(1) of your comment – that she must be deemed innocent until any inquiry determines otherwise, those making the allegations should plead for an inquiry, use of such material in campaigns before their veracity is known would attract punitive sanction of this provision, your use of the two phrases ‘yet to be proven’ and ‘without basis’ interchangeably and finally, for this reason, the ‘cannot be proven’/fictitious nature of the contents in the Shiv Kripal Singh case are equivalent in value to the ‘yet to be proven’ nature of contents in the current controversy over Ms. Patil.
Having given it some thought, it appears that trying to straightjacket everything into true/false categories may be difficult; further, trying to create a body of law to decide what is/is not permissible to be aired and who must investigate what allegation and at which point and how it should be conducted (including the onus of evidence) seems likely to turn into an onerous and clumsy exercise, since it would have to be drawn up entirely out of whole cloth by the courts and subsequently honed on a trial and error basis. Instead, since we are dealing with published material, I now feel that if one of the tests of section 171C(1) is that the nature of the content would cast aspersion on the integrity of the candidate, the same procedures and standards used in libel law can be applied. I am not sure how the two cases might stand in this light; the Nakkheeran case at least, seems to have set a much higher standard than the one we have been discussing: not merely falsehood but malice had to be proven. Any thoughts?

Dilip Rao
Dilip Rao
14 years ago

Dear Venkat,
What I gathered from the newspapers was that this petition was an effort to seek the disqualification of the candidate; I would think there is a difference between the maintainability of that versus the permissibility of airing allegations to politically discredit a candidate which was the issue in the Shiv Kripal Singh case. In deciding the former, the standard of scrutiny would have to be decidedly more stringent.

Arun Thiruvengadam
Arun Thiruvengadam
14 years ago

Dear Mr. Venkatesan,

I think the decision in Shiv Kripal, which we have been discussing at some length, is a pretty poorly reasoned one. Even if one were to go with you, and Ms Patil were able to establish that the allegations amount to “undue influence”, going by the logic of Shiv Kripal, that would not be enough to set aside the election.

I found the reasoning of the Court on the second point (of assessing the consequence of “undue influence”) deeply problematic. Here is the language used in the judgement extracted from your previous post:

“There is no evidence whatsoever that there was any intimate connection between Shri V.V. Giri and the alleged distributors. What they were doing in this connection they were doing on their own and Shri Giri cannot be held responsible for their deeds unless, of course, it is established that the result of the election had been materially affected by the distribution of the pamphlet.

On this evidence it is difficult to hold that the petitioners have proved that the publication and distribution of the pamphlet materially affected the result of the election. It only leads to the conclusion that it probably did have some effect but the vast majority of the electors were able to throw off the effect of the pamphlet and vote according to their own personal wish or according to the mandate of their party.

160. There were various other issues exercising the minds of electors, particularly belonging to the Congress party. If in spite of all these factors some were unduly influenced in their thinking, it was for them to come and say so. There was no landslide against Shri Sanjiva Reddy. Two hundred and sixty eight members of Parliament gave him the first preference. Ninety two members of Parliament, who had given first prefrence to Shri C.D. Deshmukh, gave second preference to Shri Sanjiva Reddy. It is, however, true that if 26 more members of Parliament had voted for Shri Sanjiva Reddy, instead of Shri Giri, the former would have been elected.”

What I found quite astounding here was the Court’s reasoning in holding that the allegations against Sanjiva Reddy did not have a material influence any of the voters. How on earth did the court infer that from the facts it sets out? The Court says that the allegations against Sanjiva Reddy did have “some effect” but that the vast majority of voters were able to “throw off” the effect to vote as per their conscience or according to their party’s wishes. How does the Court know this?

To me, this is the place where the Court engages in disingenuous reasoning to escape the true consequence of its earlier finding that the allegations against Sanjiva Reddy unduly influenced the voting process. This is where the ruling in Shiv Kripal lacks bite, and leaves room for a Court in future to engage in a similar “cop-out” by making some loose arguments about when an election is “materially affected” by something it may find to have unduly influenced the voting process.

I am not sure that the allegations put forth by the BJP can be directly traced to Mr. Shekhawat. A future Court may well argue as the judges in Shiv Kripal did, that what the persons making the allegations were “doing in this connection they were doing on their own.” After all, merely pointing to the fact that Shourie and Shekhawat are from the same party won’t be enough – how will ‘active collusion’ be established?

To me, the weakest part of the analysis in Shiv Kripal is in the way they’ve interpreted what would amount to “materially affecting” the electoral process. That, for me, would be reason enough for ignoring whatever precedential effect it has.

Srinivasan
Srinivasan
14 years ago

Thanks to Mr.Venkatesan for initiating a well reasoned debate. Leaving aside the precendential value of the Shiv Kripal Singh case, to me it seems, in general, there is a real problem in workability of the ruling. If the ruling were to be somehow applied in a case , the following sequence of events should obtain.

1. Somebody makes false and baseless allegations against a presidential candidate.

2. That somebody is either connected to one or many of the other candidates or the outcome is tipped against the candidate facing the allegations because of the allegations.

Aside from the fact that we cannot apply S.18 of the P&VPE act, but rely on IPC 171(c), to have any effect before the election, on the first requirement, how will the falsity of allegations be determined? Who will determine?
Should somebody go to a court and get a prima facie clearance? The charges of some actions might be legally valid, but still could run counter to norms and propriety of elected officials. (In TANSI case, this was exactly the outcome, when Jayalalithaa was acquitted but admonished because of her impropriety). The level of impropriety involved might be abominable to warrant the rejection of the candidate by the electorate. In such a situation, under what principles can a court or some authority such as EC sit on judgement over the veracity of allegations and estimate the level of impropriety that might come out of it? Won’t they be preempting the role of the electorate if they do that?

We currently have libel laws that can take care of outrageous allegations.

But my point is the answer to darkness of falsehood is the light of truth, not a quasi-censorship.
If the allegations are blatantly false, they can be easily proved by facts and arguments. Then the reputation of the person making the false allegations will be in tatters. It will create a backlash against them. It is by making it inherently risky to make unfounded allegations, that we can stem its pervasive use not by censorship.

Arun Thiruvengadam
Arun Thiruvengadam
14 years ago

Dear Mr. Venkatesan,

Thanks to your gentle prodding, I have now done something which I should have done before posting my previous comments – going over the full judgment in Shiv Kripal’s case. Even if this is a blog, and not a full-scale scholarly publication, I think our discussions deserve a level of professionalism, and I apologise for not having done so earlier. In my defence (and as this comment will bear out)I will say that your summary of the Court’s ruling on the points I want to address was very good. Consequently, the damage done is minimal in that I didn’t make blatant mistakes in conveying the import of the ruling in Shiv Kripal, even though I did mischaracterise the process of its reasoning.

I agree with you that the judgment, on the whole, is a well reasoned one, and displays an approach to judgment writing which is rarely in evidence today: a tradition of setting out materials facts and case history in a careful, succinct way(instead of merely quoting from pleadings or lower court rulings); of dealing with prior precedents, arguments of counsel in a careful, methodical way after setting them out clearly; and of seeking to provide justifications for the central holding of the case in clear language where the arguments are advanced in a logical pattern. The judgment of the Court (delivered by Justice S.M. Sikri for three judges)is also quite long, and detailed. Also, one sees genuine debate among the judges as is clear from the two separate judgments issued by Justices Bhargava and Mitter.

Coming back to my point, however, I find that the Court’s reasoning on the crucual issue of whether the election was “materially affected” to be deficient. In a judgment that otherwise extends to 224 paragraphs (I’m relying on the version available on Manupatra), Justice Sikri devotes only 6 paras (155-161) to this issue. In your earlier postings, I think you have summarised this aspect of the ruling very well, and reading the full judgment has only reinforced my view that the Court’s reasoning on this point is inadequate. I would go further to suggest that the Court’s interpretation of the evidence it sets out earlier, is flawed. Here is how Justice Sikri sets out the evidence of witnesses on the issue of whether the election was materially affected by the allegations against Mr. Sanjiva Reddy (from paras 156 and 157):

“156. Let us then see if the petitioners have been able to affirmatively prove that the result of the election was materially affected by the distribution of the pamphlet. They sought to prove this by showing what the impact of the pamphlet on various electors and their reaction was. The reactions, as is to be expected, varied greatly in its intensity. The witnesses describe it variously : “It was in bad taste, very derogatory; it was dirty, scandalous extremely bad, pernicious, contemptible, character assassination, horrible, vulgar and scurrilous, false and malicious, foul and filthy, unpleasant and foul.” Shri Madhu Limaye, M.P., thought that it would affect the chances of his candidate, Shri Giri. Shri Kanwar Lal Gupta, M.P., was in doubt what to do and what not to do. Shri K.S. Chavda, M.P., said that he changed his mind. Shri N.P.C. Naidu, M.P., concluded that members would not vote for Shri Reddy. Shri Shiv Narain, M.P., frankly stated that though he thought that ‘such a man should not be the President, yet Shri Rama Reddy convinced him that the pamphlet was totally false and he abided by the decision of the Congress Party Board, Smt. Jayabehn Shah, M.P., felt perplexed right upto the date she cast the vote but failed to positively assert that she voted for some other candidate because of the pamphlet. Shri N.N. Patel, M.P., said that he changed his attitude after reading the pamphlet and adhered to it till the last moment. Shri Mohan Lal Gautam, M.P., does not disclose how he voted. Neither does Shri S. Supakar, M.P., disclose how he voted, although he felt very sad on reading the pamphlet. Shri C.D. Pande, M.P., said that although his faith in the uprightness of Shri Sanjiva Reddy was shaken, it did not affect his vote. Shri P.N. Deb, M.P., felt very much prejudiced against Shri Reddy but did not say that he voted against him because of this pamphlet. Shri Hukam Chand Kachwai, M.P., a member of the Jan Sangh, said that at that time he thought the allegations foul and they did influence his mind, but failed to say who he voted for. Shri Suraj Bhan, M.P., deposed that the pamphlet, so far as he was concerned, affected the directions which had been given by his leaders. Smt. Pushpabehn Mehta, M.P., does not say that the pamphlet affected her vote. Shri Morarji Desai, M.P., described the impact on his mind thus :
“This would affect an average voter against Shri S. Reddy adversely, because the contents are so shocking and in this country people believe many things without going into them, especially wrong things are believed more easily.”

Shri Shri Chand Goyal, M.P., admitted that “it is not I that exercised my franchise guided by it.” The impact on Shri Ram Krishan Gupta was totally different than intended. He said that after reading the pamphlet “I became a stronger supporter of Shri Sanjiva Reddy because I thought such like posters are not good and should not be issued.” Shri R. Muniswamiah, M.L.A., said that the contents prejudiced his mind, and he could not risk not to believe them, but did not disclose how he voted. He, however, admitted that he is a loyal Congressman and has adhered scrupulously to the directives of his party. Shri S. Nijalingappa said that the pamphlet would adversely affect Shri Reddy’s chances of success. Shri M.S. Gurupadaswamy, M.P., did not say that the pamphlet affected him although “the motivation was to defame the candidate Shri Sanjiva Reddy and jeopardise his chances of being elected as President.” Shri D.S. Raju, M.P., said that he was shocked by the pamphlet but he had always been a loyal Congressman and scrupulously abided by the directives of the party. Shri Patil Putappa, M.P., felt whether he would be doing the right thing by voting for Shri Sanjiva Reddy after reading the pamphlet but admitted that he had always been disciplined and loyal Congressman and loyal to the directives of the party. Shri Sher Khan, M.P., did not believe in the truth of the allegations in the pamphlet as he had known Shri Sanjiva Reddy personally, but felt that those persons who did not know Shri Sanjiva Reddy might be affected by the pamphlet. Chaudhary A. Mohammad, M.P., said that the pamphlet did affect his mind but he did not view his decision in that light, being a loyal soldier of the Congress. Shri C.M. Kedaria deposed that after reading the pamphlet he could not risk voting for such a candidate for such a high post. Whether he actually voted for Shri Sanjiva Reddy or not is anybody’s guess because neither side asked him that question. Shri N. Sri Rama Reddy, M.P., one of the petitioners, had known Shri Sanjiva Reddy for the last 35 years, and was his counting agent. It is not suggested that his vote was affected by the pamphlet. Shri Abdul Ghani Dar, M.P., a petitioner, stated that after the pamphlet was read out to him he thought “that country was sinking and extreme danger has been posed to the democracy.” It is, however, quite clear from his evidence that he did not believe that Shri Sanjiva Reddy was a debauch. We have not referred to the evidence of electors from U.P. who deposed to meeting Shri Dinesh Singh at Lucknow because, as will presently appear, much reliance cannot be placed on what they say.”

After setting out the statements of several witnesses who said they had been affected by the allegations (and several others who declined to reveal how they had voted), the Court inexplicably concludes, without much basis, that the allegations had only affected a small group of voters. I would argue that one can use this same evidential record to argue that the election was in fact materially affected, given that so many voters had come forward to state that they had been influenced by the allegations.

The Court further exposes the weak basis of trying to find legal certainty is issues such as this, by stating as follows:

“If in spite of all these factors some were unduly influenced in their thinking, it was for them to come and say so.”

Therein lies the problem. Even among the witnesses who did come forward before the Court, as the previous extended quotation from the judgment reveals, there were several who refused to disclose exactly how they voted. The Court’s statement is either naive, or deliberately designed to obscure the reality that voters will not, for a host of reasons, come forward to say how and why they voted.

The limited point of this extended comment is to buttress my argument that the Court’s reasoning on a single point – of whether the election was materially affected – is particularly unconvincing.