Presidential Poll: What is undue influence- Part II

In the light of certain doubts expressed by Mr.Arun Thiruvengadam in the comments section to my previous post, whether it would be wise to restrict the Opposition and the press’ campaign against Ms.Patil, especially as the campaign has brought out the allegations against her in all details (I would say they are still unsubstantiated and unverified, because the Congress has denied them by making contrary claims; it is not correct to say that the Congress has not denied these at all), I am giving below the exerpts from the Shiv Kripal Singh v. V.V.Giri judgment of the Supreme Court’s Constitution Bench on what constitutes undue influence. I am with Arun on his stand that there should be a thorough debate on the backgrounds of Presidential candidates, whether personal or family. But I am doubtful whether the law is helpful to sustain the stand. In 1969, Sanjeeva Reddy faced personal allegations against his character (sex and corruption), which to the Supreme Court seemed obnoxious. Even the argument that the allegations were made by anonymous persons was not enough to convince the Supreme Court which viewed the very dissemination of the defamatory pamphlets against Reddy as exercising undue influence.
The Presidential and Vice-Presidential Elections Act, 1952. was passed to regulate certain matters relating to or connected with elections to the office, inter alia, of the President of India. Part III of the Act deals with disputes regarding elections and Section 18 therein contained lays down the grounds for declaring the election of a returned candidate to be void. The relevant part of the section provides :
If the Supreme Court is of opinion :
(a) that the offence of bribery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate; or
(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.
under Section 18, therefore, the election has to be declared to be void if, amongst other things, undue influence has been committed (i) by the returned candidate himself, (ii) by a person with his connivance, or (iii) by any person who is neither the returned candidate nor one having acted wtih his connivance, if the result of the election has been materially affected. Section 18(2) declares that for the purposes of this section the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code.
It is clear that Parliament deliberately made Section 18 stricter than the Representation of the People Act, firstly, by using the words “connivance of the returned candidate” instead of the words “his consent”, and secondly, by including undue influence committed even by a stranger, having nothing to do with the returned candidate, as a ground for declaring the election to be void, the only condition in respect of such an act being that it should have materially affected the election. The object of doing so is obvious, namely that Parliament wanted to ensure that in respect of an election for the highest office in the realm the election should be completely free from any improper influence emanating even from a third party with whom the returned candidate had no connection and without any connivance on his part. The only limitation, as aforesaid, placed in Section 18 is that in such a case the expression “free exercise of his electoral right” does not mean that a voter is not to be influenced. This expression has to be read in the context of an election in a democratic society and the candidates and their supporters must naturally be allowed to canvass support by all legal and legitimate means. They may propound their programmes, policies and views on various questions which are exercising the minds of the electors. This exercise of the right by a candidate or his supporters to canvass support does not interfere or attempt to interfere with the free exercise of the electoral right. What does, however, attempt to interfere with the free exercise of an electoral right is, if we may use the expression, “tyranny over the mind”. If the contention of the respondent is to be accepted, it would be quite legitimate on the part of a candidate or his supporter to hypnotise a voter and then send him to vote. At the stage of casting his ballot paper there would be no pressure cast on him because his mind has already been made up for him by the hypnotiser.
The freedom of election is two-fold; (1) freedom in the exercise of judgment. Every voter should be free to exercise his own judgment, in selecting the candidate he believes to be best fitted to represent the constituency; (2) Freedom to go and have the means of going to the poll to give his vote without fear or intimidation.
The statement of Objects and Reasons attached to the bill which ultimately resulted in the enactment of Chapter IXA of IPC explains in clear language that undue influence was intended to mean voluntary interference or attempted interference with the right of any person to stand or not to stand as or withdraw from being a candidate or to vote or refrain from voting, and that the definition covers all threats of injury to person or property and all illegal methods of persuasion, and any interference with the liberty of the candidates or the electors. “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.
47. From a reading of Section 171G it is clear that in pursuit of purity of elections the legislature frowned upon attempts to assail such purity by means of false statements relating to the personal character and conduct of a candidate and made such acts punishable thereunder. But the fact that making of such a false statement is a distinct offence under Section 171G does not and cannot mean that it cannot take the graver form of undue influence punishable under Section 171F. The false statement may be of such virulent, vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their being affected or attempted to be affected by the maker or the publisher of such a statement. Therefore, it is the degree of gravity of the allegation which will be the determining factor in deciding whether it falls under Section 171C or Section 171G. If the allegation, though false and relating to a candidate’s personal character or conduct, made with the intent to affect the result of an election does not amount to interference or attempt at such interference the offence would be the lesser one. If, on the other hand it amounts to interference or an attempt to interfere it would be the graver offence under Section 171F read with Section 171C.
Whether the publication of this pamphlet can be said to constitute undue influence? We have no doubt that it does fall within that definition. It is not necessary to reproduce the pamphlet in detail as we shall only be giving further publicity to this most objectionable pamphlet. The pamphlet, after giving various fictitious incidents of sexual immorality, describes Shri N. Sanjiva Reddy a debauch without any sense of shame or morality. Then the pamphlet asks : “Should the name of the Congress be lowered to such depths that this moral leper, this depraved man should be set up as the Congress candidate for the highest post?” It further adds : “A senior Congress MP has expressed the fear : If Sanjiva Reddy becomes President he will turn Rashtrapati Bhavan into a harem, a centre of vice and immorality.”
54. 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.
55-56. We are accordingly of the opinion that distribution of the pamphlet by post as also distribution in the Central Hall constituted an attempt to interfere with the free exercise of the right to vote within Section 18 of the Act.
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.

221. In conclusion we hold that the pamphlet was sent by post. Further, the pamphlet was distributed in the Central Hall of Parliament. This distribution itself constitutes undue influence within Section 18(1)(a) of the Act. It is, however, not proved that this pamphlet was distributed by workers of the respondent, or with the connivance of the returned candidate. We further hold that it has not been proved that the result of the election has been materially affected by the distribution of the pamphlet. The rest of the allegations either do not amount to undue influence or were not proved.
The question to be asked in the light of this judgment is whether the campaign against Ms.Patil could be held to be undue influence if she lost the election. Yes, as the law stands today, it can be so held by the Supreme court.
AMENDMENT: The word “connivance” in S.18 of the Act has been amended as “consent” in 1974.

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1 comment
  • Dear Venkat,
    As I understand it, to count as ‘undue influence’, the allegations published and disseminated must first be shown to be false. From the excerpts of this judgment, I am not clear how the court came to conclude that the allegations of sexual debauchery against Sanjeeva Reddy were fictitious: was it because the source could not be identified and therefore the authenticity of the same could not be determined? In the current case, if Arun Shourie’s ‘quickie’ was the document being disseminated, the source is well-known as also the basis of the claims, based as they appear to be, on letters/memoranda and publicly available reports/facts, all referenced in detail. I am open to correction but from what I have seen, most refutations of the Congress have been on the question of connection between the reported incidents (bankruptcy, murder, etc.) and the candidate (which seems to be the weakest part of the case being made against her fitness for the Presidency). In any event, if the matter goes to court, since both the source and the references are available, I do not think a summary conclusion of falsehood would be justified in this case and a more detailed inquiry would be warranted and also easily conducted. In that sense, it appears to me that this case differs from the Shiv Kripal Singh case; while her own knowledge and involvement are debatable, the allegations being aired would not seem to constitute ‘undue influence’.