08 - Chapter 3 PDF

CHAPTER III
UNDUE INFLUENCE
In a participatory democracy every man, however
low his position in the society may be, should be able to
participate in the political process. If an ordinary elector
is not in a position to make his free choice, the elections |

will never reflect the true popular will. Definitely the j
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electors should be made aware of the political and social

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issues involved in the election, the individual merits and !
demerits of the candidates, and the policies and programmes
of the political parties. The election campaign ought to be !
monitored by law in such a direction. The idea is to equip
the electors with the power to make free choice, analysing
the political situation and the calibre of candidates.
However, a candidate may attempt to exert an influence on j

I
the elector in such a way as to prevent him from making free j
choice. The possibility of such influence is more in the !
case of socially and economically backward classes of

electors, since they are more susceptible to different kinds
of pressures. In order to avoid this evil, the law seeks to
prohibit candidates from exercising undue influence.
In the law of contract consent of parties obtained
by undue influence is a ground for invalidating an

98
agreement. This happens where the parties stand to one
another in relation of confidence which puts one of them in
a position to exercise over the other an influence which may
be perfectly natural and proper in itself, but is capable of

being unfairly used"*". In cases involving undue influence' a
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party is bound to establish any of the two conditions , viz.
(i) where the other party has exercised undue influence, in
1. See Section 19-A of Contract Act, 1872. See A.G. Guest

(ed.), Anson's Law of Contract (1975) p.262. See also
N.H.D. Winder, "Undue Influence and Coercion", 3 M.L.R.
97 (1939); 9 Halsbury's Laws of England (Fourth edn.,
1977) p.174.
2. See A.G. Guest, supra n.l at 262. Section 16 of the

Contract Act defines the term in the following words:
1. A contract is said to be induced by "undue
influence" where the relations subsisting
between the parties are such that one of the
parties is in a position to dominate the will
of the other and uses that position to obtain
an unfair advantage over the other.
2. In particular and without prejudice to the
generality of the foregoing principle, a person
is deemed to be in a position to dominate the
will of another.
a. where he holds a real or apparent authority
over, the other or where he stands in a
fiduciary relation to the other; or
b. where he makes a contract with a person
whose mental capacity is temporarily or
permanently affected by reason of age,
illness, or mental or bodily distress.
3. Where a person who is in a position to dominate
the will of another, enters into a contract
with him, and the transaction appears, on the
face of it or on the evidence adduced, to be
unconscionable, the burden of proving that such
contract was not induced by undue influence
shall lie upon the person in a position to
dominate the will of the other.
Nothing in tnis sub-section shall affect
the provisions of section 111 of the Indian
Evidence Act, 1872.
99
the sense of domination, over the other; or (ii) where there
is an abuse of the duties of care and confidence which may
be imposed on one party towards another as a result of .the
partial relationship which emerges from the special
circumstance of their association.
However, in election law, the existence of none of
the above conditions is necessary to constitute undue
influence since the term is defined differently. The
provision reads thus:
Undue Influence, than is to say, any direct or
indirect interference or attempt to interfere on
the part of the candidate, or his agent, or any
other of person with the consent of the candidate
or his election agent, with the free exercise of
any electoral right:
Provided that -
a. Without prejudice to the generality of the
provisions of this clause any such person as is
referred to therein who-
i. threatens any candidate or any elector, or any
person in whom a candidate or an elector is

interested, with injury of any kind including
social ostracism and ex-communication or

expulsion from any caste or community; or
ii.induces or attempts to induce a candidate or an

elector to believe that he, or any person in
100
whom he is interetad, will become or will be
rendered an object of divine displeasure or
spiritual censure, shall be deemed to interfere
with the free exercise of the electoral right
of such candidate or elector within the meaning
of this clause;
b. 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 tha meaning of this clause 3 .
3. Section 123(2) of the R.P. Act, 1951. The corrupt

practice of undue influence was first introduced in the
First Schedule of the Government of India (Provincial
Elections) (Corrupt Practices and' Election Petitions
Order) 1936. The term was defined as follows:
"Undue Influence", that is to say, any direct or
indirect interference or attempt to interfere on
the part of a candidate or his agent, or of any
other person with the connivance of the
candidate or his agent with the free exercise of
any electoral right:
Provided that-
a. without prejudice to the generality of the
provisions of this paragraph, any such
person as is referred to therein who-
i. threatens any candidate or elector, or
any person in whom a candidate or elector
is interested with any injury of any
kind; or
ii. induces or attempts to induce a candidate
or an elector to believe that he, or any
person in whom he is interested, will
become or will be rendered an object of
divine displeasure or spiritual censure,
shall be deemed to interfere with the
free exercise of the electoral right of
that candidate or elector within the
meaning of this paragraph:
101
Thus an influence may amount to undue influence if
there is an interference’ or an attempt to interfere with the
free exercise of the electoral right of a person. Subclause
(a) deals with specific instances of undue influence, and
subclause (b) considers exceptional situations. In Lalsingh

4
v. Vallabhdas Justice N.M. Miabhoy of Gujarat High Court
considered the object of the provision and observed:
In our judgment, subsection (2) is designed to
ensure freedom to the elector to choose a
candidate of his own choice. It is designed to
prevent persons from deflecting the elector from
enjoying that freedom by influencing him in a
manner which would be regarded to be undue, that
is, by creating an atmosphere or situation in
which the choice of candidates will be made not
Foot note 3 contd...

a. 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 paragraph.
Comparing the provision with Section 123(2) of the
Representation of the People Act, 1951, only minor
differences are visible. The terms 'connivance', and
'paragraph' are used instead of the words 'consent' and
'clause' respectively. In subclause (a) (1) though the
earlier provision mentions only about "injury of any
kind", Section 123(2) states "injury of any kind
including social ostracism and excommunication or
expulsion from any caste or community". So the present
law is more explanatory.
4. A.I.R. 1967 Guj. 62.

102
on the merits of the candidates or their parties
or their programmes and instead selecting them on
extraneous considerations-- such that a selection
would affect spiritually adversely them or. their
kith and kin or persons in whom they are
interested or would create a feeling in them that
they would personally stand to gain or lose in
matters which do not relate to policies or
programmes on which governments are run, if they
cast their votes in favour or against a particular

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candidate .
6
Though the term 'fraudulent device' is left out
by the legislature, the judical attitude is to treat such
action as undue influence.
5. Id. at 69. /
6. The English law specifically states that use of

fraudulent device would constitute corrupt practice.
Halsbury's Laws of England summarizes the English
position thus:
A person guilty of undue influence is guilty of
a corrupt practice. A person is guilty of undue
influence:
i. if he, directly or indirectly, by himself or
by any other person on his behalf, makes use
of or threatens to make use of any force,
violence or restraint, or inflicts or
threatens to inflict, by himself or by any
other person, any temporal or spiritual
injury, damage, harm or loss upon or against
any person in order to induce or compel that
person to vote or refrain from voting, or on
account of that person having voted or
refrained from voting;
103
In an earlier decision it was observed:
It is obvious that the definition of undue
influence is very widely worded and covers all
kinds of fraudulent acts or omissions which, in
any way directly or indirectly interfere with the
exercise of any electoral right- The definition in
the English Act specifically makes a fraudulent
device or contrivance a type of undue influence.
As devices based on fraud which interfere with the
exercise of electoral right, are not mentioned by
name in the definition . . . it has been
intentionally framed in very general terms so as

7
to cover all kinds of such devices .
Footnote 6 (Contd...)
ii.if, by abduction, duress or any fraudulent

device or contrivance, he impedes or prevents
the free exercise of the franchise of an
elector or proxy for an elector, or thereby
compels, induces or prevails upon an elector
or proxy for an elector either to vote or to
- refrain from voting.
A candidate who is reported by an
election court guilty by his agents of the
corrupt practice of undue influence may be
excused from the consequences in certain
circumstances.
15 Halsbury’s Laws of England (Fourth edn., 1977)
p.428.
7. Lyallapur and Jhang General Constituency Case No.2,

Doabia,. H.S. and Doabia,T.S.,Doabia's Election Cases,
1894 (Wadhwa and Co, 1961) p.243, 256. See also A.
Srinivasan v G. Vasantha Pai 10 E.L.R. 245.
104
g
In S.K. Singh v. V.V. Giri the judges expressed
conflicting views about the stage at which the influence had
to be exerted. The controversy centred on the two stages
while exercising the voting rights, the first . stage being
the mental process of weighing the merits and demerits of
the candidates, analysing the programmes and policies of
political parties etc., and the second stage being the time
when the voter goes to cast his vote in favour of the
candidate of his choice. The facts disclose that an
8. A.I.R. 1970 S.C. 2097. The election petition involved

the validity of the Presidential election on the ground
of corrupt practice, of undue influence. Under the
Presidential and Vice-Presidential Election Act, 1952,
the term 'undue influence' had the same meaning as that
in Section 171-C of the Penal Code and read thus:
1. Whoever voluntarily interferes or attempts to
interfere with the free exercise of any
electoral right commits the offence of undue
influence at an election.
2. Without prejudice to the generality of -£he
provisions of sub-section (1), whoever-
a. threatens any candidate or voter, or any
person in whom a candidate or voter is
interested, with injury of any kind, or
b. induces or attempts to induce a candidate or
voter to believe that he or any person in.
whom he is interested will become or will be
of spiritual censure,
shall be deemed to interfere with the free
exercise of the electoral right of such
candidate or voter, within the meaning of
sub-section (1).
3. 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.
105
anonymous pamphlet had been published depicting the defeated
candidate as morally depraved. It was argued that the
element of undue influence can apply at the second stage
only. The majority rightly dismissed the contention. After

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carefully examining the statutory provision, Sikri J .
concluded that the interference at both the stages would
constitute undue influence.

ii
The learned Judge also pointed out that canvassing j
by legitimate means was not prohibited and what was
proscribed was the tyranny over the mind. According to
him"if the contention of the respondent is to be accepted, j

j
it would be quite legitimate on the part of a candidate or 1
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his supporters to hypnotise a voter and then send him to j
vote"^. Justice Sikri further observed:
i
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"^.
9. For himself, and on behalf of Shelat and Vaidialingam

JJ.
10. Id. at 2113.
11. Ibid. Citing with approval Nanak Chand,- Law and

Practices of Elections and Election Petitions (1937)
p.362.
106
Justice Bhargava dissented. According to him, the provision

covered only interference at second stage. When the offender I
interferes or attempts to interfere with the free exercise j

i
of the choice of voting in accordance with the decision
already taken by the voter. Any act which merely influenced
the voter in making his choice between one candidate or
another, will not amount to interference with the free

!
exercise of the electoral right. j
The majority view seems to be correct and in j
consonance with the object of the provision. If the view j
|
taken by Justice Bhargava is accepted it becomes necessary
to find out the answer to two vital questions, viz. whether
the elector had chosen the candidate for whom he intended to
vote; and whether his choice had been subsequently changed
by the exercise of undue influence. It is impossible to i

decide the first factor since the elector is the sole person j
to give an answer to that question, and there is no means to I
determine whether the answer is true or false. In such a
situation a person who commits corrupt practice may escape
on the ground of lack of evidence. Hence in practice the
province of the provision will be confined to any
interference by use of physical force. However if the
majority view is accepted any attempt at the instance of a
candidate to exert undue influence could be treated corrupt

practice.
107
Using Physical Force

j
The interference with the free exercise of
electoral right may be either direct or indirect. In the
case of direct interference the only thing to be done by the
court is to make a finding of fact to that effect and set j

aside the election. But when the question of indirect j
influence is involved it becomes necessary to determine |

|
whether the particular conduct will amount to undue j
influence. The usually adopted method ofdirect interference j
is the use of physical force to restrain any person from ;

j
exercising the right. i
12
In Janak Sinha v. Mahant R.K. Das it was proved
that an elector was prevented from exercising his vote by
the supporters of the appellant. Upholding the Patna High ;

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Court in setting aside the election, the Supreme Court held
that when a voter is prevented from exercising his vote by
the supporters of the candidate and in his presence and
without any attempt made by the latter to stop his
supporters from so doing, the only inference is that the
elector was prevented from voting by the supporters of the
12. A.I.R. 1972 S.C. 359.

108
candidate with his consent'*"'.
A direct interference with the free exercise of
electoral right is not always necessary to constitute the j

I
corrupt practice of 'undue influence', as is seen from Ram

14
Sharan Yadav v. Thakur Muneshwar Nath Singh . The facts
show that when voters' were going to the polling station the I
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agents and supporters of the returned candidate indulged in !
assault, hurling bombs etc. No step was taken by the
candidate to stop them from doing so. The Patna High Court i
set aside the election on the ground of commission of
corrupt practice under Section 123(2), which was affirmed by
the Supreme Court. It was clear that the intention was to

15 i
put the voters m serious fear . The result of such an
13. Id. at 375 (along with A.N. Ray and D.G. Palekar JJ.)
The decision also involved a finding by the High Court
that the defeated candidate was forcibly pushed out of
a polling booth and that it amounted to the corrupt
practice of undue influence. The Supreme Court did not
refer to the matter.
14. A.I.R. 1985 S.C. 24.
15. In Har Swarup v Brij Bhushan A.I.R. 1967 S.C. 836 it

was alleged that one candidate, who withdrew his
candidature within the time fixed for withdrawal, had
threatened an elector that his bones would be broken if
he did not cast vote for the returned candidate. The
Court held that the action amounted to corrupt
practice. But the election petition was dismissed on
the ground of nonjoinder of the candidate who withdrew
his candidature.
109
action will be the reduction of the percentage of polling.
Threats to physical security of the voters are thus
recognized to affect the exercise of electoral right,
without fear. But causing disturbance of election meetings

by itself might not amount to undue influence"^. The alleged
act should be sufficient to create apprehension in the minds
of the electors so as to prevent them from going to the
polling station 17
When it was alleged that a person charged for
murder was appointed the polling agent of the returned
candidate, the Court refused to treat it as undue influence,
16. Surinder Singh v Hardial Singh A.I.R. 1985 S.C. 89.
17. The decision of the Election Tribunal, Lucknow in

Radhakrishna v Tara Chand 12 E.L.R. 378 is the rsult of
. the same line of thinking. The facts show that slogans
were raised in various villages and bazaars tha"t people
who voted in a particular manner would be given shoe
beating. The Tribunal followed Norfolk (Northern case)
(1869) 1 O'M and H. 236, 242, where it was held that a
threat could be considered to amount to undue influence
only if it was serious and deliberate and uttered with
the intention of carrying it into effect. The Tribunal
negatived the contention inasmuch as it had occurred
several months before the election. However, a further
reason was given, that not a single instance was
brought on record to show that the threat contained in
the slogan was carried out. The Tribunal, it is to be
said, viewed the matter erroneously.
In M. Narayana Rao v. G. Venkata Reddy A.I.R. 1977
S.C. 208 the allegation was that disturbance was
created by the returned candidate at the polling
station. Though the High Court set aside the election,
on appeal, the Supreme Court reversed for want of
evidence.
110
pointing out the fact that at the time of appointment there
was only a charge of murder against the agent and he had
been subsequently acquitted of it. The view could be correct
only if the very presence of such a person was not a threat ;
to the electors. J
18
In Jamuna Prasad v. Shri Ramnivas the petition j
contained an allegation that a gang of dacoits had canvassed ;
votes on behalf of the returned candidate. The Tribunal i
refused to treat it a corrupt practice but only as a
reprehensible action. It is to be said that procuring the !

!
assistance of dacoits to canvass votes is not a matter to be !
i
i
taken lightly. The very purpose of such an action could be j
I
i
to create fear in the minds of the electors and should have j
attracted the statutory provisions. The reasoning of the
Court may be the result of a misconception that the standard j
to be followed for determining undue influence in election
is the same as that of law of contract.
It is relevant to note that the role played by j

I
criminals to secure votes by using illegal means has been j
increasing .with an alarming speed. Usually their assistance
is sought by candidates for creating violence and for booth
capturing. In the Lok Sabha Elections held in the year 1989
18. A.I.R. 1959 M.P. 226.

Ill
a number of criminals appeared even as candidates sponsored
by political parties 19 . It is suggested that criminals
should be excluded from the election process and for that
purpose the R.P. Act may be suitably amended.
The existing law prevents a person convicted for
an offence from being a candidate in an election. Section 8
of the R.P. Act 1951 deals with this matter. A person
convicted for the commission of an offence mentioned in

/
Section 8(1) shall be disqualified for being a candidate in
20
an election for six years from the date of conviction
19. See India Today November 30, 1989, p.195. See also Khan
M.L. and Singh O.R. "Poll violence During 1980 General
Election" 2 I.J.C.C. 188 (1982) See Ram Jethmalani,
"Convicts as Candidates" Indian Express September 22,
1979.
20. Section 8(1) reads thus:

A Person convicted of an offence punishable under-
a. Section 153 A (offence of promoting enmity
between different groups on ground of religion,
race, place of birth, residence, language etc;
and doing acts prejudicial to maintenance of
harmony) or section 171 E (offence of bribery)
or section 171 F (offence of undue influence or
personation at an election) or sub-section (1)
or sub-section (2) of section 376 or section
376 A or section 376 B or section 376 C or
section 376 D (offences relating to rape) or
section 498 A (offence of cruelty towards a
woman by husband or relative of a husband) or
sub-section (2) or sub-section (3) of section
505 (offence of making, statement creating or
promoting enmity, hatred or ill-will between
classes or offence relating to such statement
in any place of worship or in any assembly
engaged in the performance of religious worship
or religious ceremonies) of the Indian Penal
Code (45 of 1860), or
112
According to Section 8(2) a person convicted of an offence
mentioned in sub-section, and sentenced to imprisonment for
a period not less than six months shall be disqualified from

(b) the Protection of Civil Rights Act, 1955 (22 of
1955) which provides for punishment for the
preaching and practice of "untouchability", and
for the enforcement of any disability arising
therefrom; or
(c) section 11 (offence of promoting or exporting
prohibited goods) of the Customs Act, 1962 (52
of 1966); or
(d) sections 10 to 12 (offence of being a member of
an association declared unlawful, offence
relating to dealing with funds of an unlawful
association or offence relating to
contravention of an order made in respect of a
notified place) of the Unlawful Activities
(Prevention) Act, 1967) (37 of 1967) ; or
(e) the Foreign Exchange (Regulation) Act, 1973 (46
of 1973) ; or
(f) the Narcotic Drugs and Psychotropic Substances
Act, 1985 ( 61. of ■ 1985).; or
(g) section (3) (offence of committing terrorist
acts) or section 4 (offence of committing
disruptive activities) of the Terrorist and
Disruptive Activities (Preventions) Act, 1987
(28 of 1987); or
(h) section 7 (offence of contravention of the
provisions, of sections 3 to 6) of the Religious
Institutions (Prevention of Misuse) Act, 1988
(41 of 1988); or
(i) section 125 (offence of promoting enmity
between classes in connection with the
election) or section 135 (offence of removal of
ballot papers from polling stations) or section
135 A (offence of booth capturing) or clause
(a) of sub-section (2) of section 136 (offence
of fraudulently defacing or fraudulently
destroying any nomination paper) of this Act,
shall be disqualified for a period of six years
from the date of such conviction.
113
the date of conviction and shall continue to be disqualified

21
for a further period of six years since his release
According to Section 8(3) a person convicted for
any offence and sentenced to imprisonment for not less than
two years, other than for any offence referred to in sub
section (1) or sub-section (2), shall be disqualified from
the date of such conviction and shall continue to be
disqualified for a further period of six years since his
release.
It is submitted that the existing provisions are
inadequate to prevent the influence of criminals in the
election process. There exists no law prohibiting the
appointment of criminals as election agents or polling
agents or counting agents. It is not unlawful to procure the
21. Section 8(2) reads thus:
2. A person convicted for the contravention of
(a) any law providing for the prevention of

hoarding or profiteering; or*
(b) any law relating to the adulteration of food
or drugs; or
(c) any provisions of the Dowry Prohibition Act,
1961 (28 of 1961); or
(d) any provisions of the Commission of Sati
(Prevention) Act, 1987 (3 of 1988), and
sentenced to imprisonment for not less than
six months, shall be disqualified from the
date of such conviction and shall continue
to be disqualified for a further period of
six years since his release.
114
assistance of criminals for canvassing votes or for the
furtherance of the prospects of election of a candidate in ■
any other way. Moreover, the existing .law in relation to ,

i
disqualification for being a candidate on the ground of
conviction for crime unnecessarily classifies the conviction
as mere conviction, conviction and imprisonment for a period
not less than six months and conviction and imprisonment for
a period not less than six years. It is suggested that the !
j
mere conviction for committing any offence involving moral j
turpitude should be made a disqualification for being a ;
candidate in an election. The period of disqualification j
should at least be for the period of imprisonment and for a

i
further period of ten years since his release. Such persons |

!
I
should be treated as criminals for the purpose of elections. j
Law should be amended so as to prohibit the appointment of |
criminals as election agents, polling agents and counting I
agents. In addition procuring the assistance of criminals by
a candidate for furthering the prospects of his election or
for prejudicially affecting the prospects of election of

. 22
another candidate should be treated as corrupt practice
22. The existing law restricts the right of a person

confined in prison or in lawful custody of the police,
other than a law of preventive detention, to vote. See
S. 62(5) of the R.P. Act.
115
Spiritual Intimidation
Sub-clause (a) to Section 123(2) covers spiritual

23
intimidation exerted through the following means:
1. threatening any candidate or any elector or any
person in whom a candidate or an elector is
interested, with injury of any kind including
social ostracism and excommunication or expulsion
from any caste or community; and
2. inducing or attempting to induce a candidate or an
elector to believe that he, or any person in whom
he is interested will, become or will be rendered
an object of divine displeasure or spiritual
censure.
Though the first portion covers both spiritual as
well as physical initimidation, the second portion' covers
only instances of spiritual intimidation. If the disputed
action directly falls under the rubric of actions mentioned
above, there is no difficulty to determine the corrupt
practice of undue influence by way of spiritual
intimidation. But the history of election petitions clearly
reveals that in most cases the intimidation is in indirect
form and calls for a decision by the court as to whether a
23. See supra n. 1.

116
particular conduct would fall within the purview of the
provision.
In an earlier decision, Sh. Mohammed Sadig v. Dr.
Saifuddin Kitchlew24 the allegation was that one Feroze ud-
Din Ahmed by administering oaths to his audience, which
included numerous voters, restricted their choice to the
returned candidate, under the pain of spiritual penalties
and thereby interfered with the free exercise of their right
to vote . It was contended that the element of compulsion
was an essential -ingredient of the corrupt practice. The
contention was that voters had not been compelled to take
the oath, and the corrupt practice could not be found.
Rejecting the contention the Tribunal ordered to set aside
the election since it was evident that the element of
compulsion was present in the minds of those voters who had
taken the oath. They had given an undertaking, supported by
the sanction of loss of faith, which inevitably leads to
divine displeasure and spiritual censure.
24. Doabia supra n. 7 at 117.
25. In M. Yunus Saleem v. S.K. Shastri 46 E.L.R. 575 one of

the allegations contained in the election petition was
that the returned candidate by means of threats forced
Muslim voters to swear on the Quran that they would
vote for him. Later, the returned candidate was alleged
to have warned them that if they did not act in
accordance with the oath they would be in danger of
divine displeasure. The case failed for want of
evidence.
117
Regarding the ambit and scope of the provision, it was
observed:
That definition, as is obvious gives a very wide
scope of the meaning of "undue influence"...
Evidently the offence includes such interference
or attempt to interfere by any method, and one,
possible method is the method of inducement, which
is proved to have been practised in this case. In
fact the word 'induces' occurs in the second
proviso of the definition of "undue influence" . .
. . Further, we have seen that the inducement was
of very powerful type, supported as it was by
references to the demolition of Shahidganj Mosque
and the deaths of Muslims which resulted from the
firing during the ensuing disturbances in regard
to which the feeling among the rank and file 'of

26
the Muslim community is undoubtedly very deep
Hence it follows that compulsion is not an

27
essential ingredient to constitute inducement . The view is
26. As cited in S.K. Singh v. V.V. Giri A.I.R. 1970 S.C.

2097, 2162.
27. In Sardul Singh v. Hukum Singh 6 E.L.R. 316 the

Tribunal observed:
It is not necessary that there should be any
actual threat or physical compulsion held
out, but the method of inducement as may be
adopted should convey to the mind of the
person addressed that non-compliance with the
118
correct since the statutory provision concerns only with
interference with the free exercise of electoral right. When
such interference is possible without compulsion, the better
view seems to be to exclude the element. For example, a
religious leader can issue a statement to the effect that i
the particular line of voting is sin without apparently
directing to cast or not to cast their vote in favour of a
particular candidate. The decison of Election Tribunal,

28
Kotah in Jujhar Singh v. Bhairon Lall illustrates the
point. The petitioner, a jagirdar, contested as a Rama Rajya
Parishad candidate, and respondent Bhairon Lall fought on
the Congress ticket. It was alleged that a poster was i

i
published by the respondent which contained the statement,
"Vote for Congress in order to put an end to the atrocities >
of jagirdars". On the left side of the poster, a person
apparently a tenant, was.shown tied up to a tree with a

/
rope. On the right there was a well-dressed jagirdar ■ asking
his man, who was seen waving a whip, to flog the tenant. The
wishes of the person offering the inducement

may result in physical or spiritual harm to
himself or to any other person in whom he is
interested. Some fear of harm resulting from
noncompliance with the request thus seems to
constitute an essential element in "undue
influence" (at 319).
28. 7 E.L.R. 457.

119
wife of the tenant was shown lying prostrate on the ground.
To the right hand side of the picture, there was a symbol of •

two bullocks with yoke on? and near about the slit there {
were the hands of so many voters, male and female,
attempting to cast their vote in the ballot box. The
Tribunal held that the publication of the poster amounted to
commission of corrupt practice. Regarding the element of
compulsion, it was observed:
It may be observed that an attempt to interfere by

the method of compulsion is not necessary and that i;
j
even the method of inducement may be sufficient, |
provided it be of such a powerful type as would
leave no free will to the voter in the exercise of

i
t
his choice. In other words, actual physical '
compulsion is not necessary, but, positive mental j
compulsion may be enough to give rise to an undue j

29
influence
It is to be said that the introduction of the
aspect of mental compulsion was unwarranted because it could

30
be a legitimate means to convass votes . What is prohibited
29. Id. at 461.
30. The following observation is relevant in this context:

A candidate, or as matter of fact, any person
has every right to persuade people to vote in
his favour at the election and in' that
120
by law is the compulsion through fraudulent device. However,

j
it is difficult to formulate,definite criteria to determine
whether a particular conduct is fraudulent or not. Hence j

what may be done is to make the determination in this regard [
according to the facts and circumstances of each case.
One of the effective means to exercise undue
influence is to convince the electors that casting of vote
in favour of a political party or candidate would be a sin.

31
In Ram Dial v. Sant Lai it was proved that
I
Maharaj Sat Guru Pratap Singh, the religious head of |
Namadhari sect of Sikhs, had issued firmans to his followers
that those who did not vote for the appellant would suffer
not only in this world but in the next also. In addition it J
respect he is further entitled to be even

crtical of the policy and acts of the rival
party or its candidate and that way it may as
well be legitimate for them to influence the
voters, provided they did not transgress the
legitimate bounds of criticism. It is only
undue influence which can be taken exception
of, and, eventhough that term is wide enough
to cover any interference with the exercise
of any electoral right, one can justifiably
call any act as an interference only when it
has in it an element of compulsion so as to
give way to free thinking in the exercise of
the electoral rights of the voters.
Takandas Hemraj v. Pinto Frederic Michael 18 E.L.R.

403, 411.
31. A.I.R. 1959 S.C. 855.

121
was found that a pamphlet A was widely distributed in the
constituency.
Upholding the High Court in setting aside the
election, B.P. Sinha J. observed:

We have looked into the original document also,
and we agree with the High Court that the crucial
words, like hukam of Sri. Sat Guru Sacha Padshah,
etc., have been printed in very bold letters,
conveying the distinct impression to the large
number of Namadharis r who are voters in the
constituency, that it was a mandate from their
spiritual Guru who wielded great local influence
amongst them, that it was their bounden duty,
under the strict orders of their religious leader,
not only to cast their own votes in favour of the
particular candidate, but also to exert their
influence amongst their friends and acquaintances
in favour of that candidate; and that any
infringement of that mandate had implicit in
32. "Every Namadhari of this Halque is commanded by Sri Sat

Guru that he would make every effort for the success of
Sri. Ram Dayal Vaid, a candidate for the Punjab Vidhan
Sabha, by giving his own vote and those of his friends
and acquaintances it being our primary duty to make him
successful in the election. The election symbol of Sri.
Vaid is a riding horseman.
Sd. Maharaj Biz Singh,
S/o Sat Guru Maharaj Pratap Singh,
Jiwan Nagar (Hissar)".
122
it divine displeasure or spiritual censure
Another popular modus operandi in this regard is to pinpoint j

I
the policy of a political party or its government which has
not gained the support of a religious sect and to state that
the casting of votes in favour of that party would be a sin.
This kind of solicitation of votes is highly reprehensible
since the spiritual aspect which should not enter the
mundane political process and the religious issues which j|

:Ji
ought to be avoided in the election campaign are highlighted |
to cloud the electors' right to make free choice. :

34
In Narbada Prasad v. Chhaganlal the allegation
was that the returned Jan Sangh candidate and his agent made
speeches at fourteen villages referring to their election
manifesto and claimed that the Congress Party had not j
abolished cow slaughter but was promoting it, and that Jan ;
I
Sangh would stop cow slaughter. They further stated that to j
vote for the Congress was to commit the sin of gohatya and
that the Congress candidate herself ate beef 35 . Affirming
the decision of the Madhya Pradesh High Court declaring the
33. Id. at 859.
34. A.I.R. 1969 S.C. 395.
35. Another allegation related to the exhibition of a

poster depicting Congress Party as butcher intent upon
slaughtering a cow. Since this part of the case was not
accepted by the High Court, the Supreme Court did not
consider it.
123
election void, Hidayatullah C.J. observed:
The question is whether in stating that if they
voted for the Congress or a Congress candidate,
they would be committing the sin of gohatya,
amounted to an attempt to induce the voters to
believe that they would become or would be
spiritual censure. In our opinion a statement of
this kind falls within this provision of the
section. It is not necessary to enlarge upon the
fact that cow is venerated in our country by the

vast majority of the people and that they believe
not only in its utility but its holiness. It is
also believed that one of the cardinal sins is
that of gohatya. Therefore, it is quite obvious
that to remind the voters that they would ' be
committing the sin of gohatya would be to remind
them that they would be objects of divine
displeasure or spiritual censure ... .In our
opinion both spiritual censure and divine
displeasure are implicit in the speeches as

- 36
made
It is clear that to say that casting votes for a
particular candidate would be a sin is equivalent to saying
36. Id. at 400. (For himself and A.N. Grover J.)

124
that a person would be the object of divine displeasure, a
conditionprecedent fortreatinga particular action as sin, !

37 I
a word used only in religiouscontext . ;
A larger bench of
the Court considered the j
38 I
question in Manubhai v. Popatlal . The facts show that j
i
several persons with the consent of the appellant, who was j

!
the returned Swatantra Party candidate and his agent, \
induced the electors to believe that if they voted for the i
Congress Party candidate, they would become the object of

divine displeasure and spiritual censure. It was alleged
that in public meetings held at several places one Shambu
Maharaj told the electors that the voting in favour of !
Congress was tantamount to the commission of the sin of cow
slaughter and asked them in the name of Mother Cow to take a ;

I
vow not to vote for the Congress candidate, with the result |
that several members of the audience publicly took the vow. j

The Gujarat High Court ordered to set aside the election.
Bachawat J. upheld the High Court and observed:
37. See Random House Dictionary of the English Language

(1983). One authoritative definition to the term sin
reads thus:
Sin may be defined as indifference or
opposition to the will of god, the refusal of
faith and love.
James Hastings (ed.) Encyclopaedia of Religion and
Ethics Vol.XI (Charles Scriber's Sons, New York, 1958)
p.541.
38. A.I.R. 1969 S.C. 734.

125
In considering the speeches the status of the
speaker and the character of the audience are
relevant considerations. Shambhu Maharaj was a
Kirtankar of repute and well-known and respected
for his lectures on Hindu Religion. The audience
consisted mostly of the illiterate and orthodox

39
Hindus of the rural areas ....
i
The learned Judge examined the content of the speech and J
observed: '
The dominant theme of the speech was that those
who commit the sin of gohatya would be visited
with divine displeasure. Having regard to the
character of the audience, the speech was
calculated to interfere with the free exercise of
electoral right40. j
39. Id. at 739. (For himself and S.M. Sikri and Hedge JJ.).
40. Id. at 739-40. During the trial, the High Court had
given leave to the respondent No.l to amend the
petition by adding fresh particulars of corrupt
practices. The substance of the new charge was that at
the meetings Shambhu Maharaj induced or attempted to
induce the electors to believe that their religious
head Shankaracharya had commended them not to vote for
Congress and that the contravention of his command
would be a sin and would be visited with spiritual
censure and divine displeasure. The High Court treated
it as a corrupt practice. But on appeal the majority
(Bachawat and S.M. Sikri JJ.) held that the order of
the trial Judge allowing the amendment was erroneous
and so the Court did not consider the question whether
the new allegation would come within the purview of
corrupt practice. However, Hedge J. dissented holding
126
Though one may agree with the view of the Court/
it is to be said that the learned Judge had . unnecessarily
referred to the status of the speaker and the standard of
the audience for examining the effect of the exhortation.
The statutory provision is silent about the effect of the
exhortation intending to exert undue influence. The aspect
of effect is irrelevant, because the law prohibits any
interference or an attempt to interfere with . the free
exercise of electoral right. Thus even if the appeal has not j

,
ii
generated any impact it should attract the prohibition on j
i
the score, that it is an attempt to interfere with the free
exercise of electoral right. The duty of the Court, while
dealing with this kind of allegations, is to examine whether

i
the conduct of the candidate, or his agent or any other
person, is intended to interfere with the free exercise of }
electoral right of any other person. Thus the emph&sis on i

the effect of the appeal was unwarranted. j
that the amendment of the petition was properly

allowed. According to the learned Judge "each and every
one of the speeches made by Shambhu Maharaj . . . fall
within the vice of section 123(2) of the Representation
of People Act, 1951." Id. at 740. For similar facts,
see Mohan Lai Sethia v. Chiranjivlal Harsola, (1970)
U.J., (S.C.) 231 and Mast Ram v. Haram Singh Sethi 7
E.L.R. 301.
127
41
However, Pandit Shree K. Selot v. R. Pujari
I
1
clearly distorts the law. It was held that mere statements
like "Congress Government slaughtered cows", "if one vote is
cast for Congress, it is equal to slaughter of cow", etc.
would not come within the purview of Section 123 (2) (a)
(ii). The reasoning was that there was no warning that the
voters would commit the sin of cow slaughter if they voted

42 !
for Congress . I
The view is clearly erroneous. In Manubhai the

I
court stated that according to Hindu religion, cow slaughter i
was a sm 43 . In Pandit Shree the candidate highlighted the
fact that the Congress Government had permitted such action
which would come within the rubric of sin. The Court refused
to treat it a corrupt practice on the ground of absence of j
specific statement in this regard. It is submitted that this

i
type of indirect attempt, intended to create an impression
among the electors that the particular line of voting is
sin, should be treated as a corrupt practice. Otherwise the
41. (1969) 3 S.C.C. 548.
42. Id. at 554. (Ramaswami J. for himself and J.C. Shah

and A.N. Grover JJ.)
43. See supra n.38.

128
practical effect will be that a candidate would not be
foolish enough to make a specific statement that casting of
votes in favour of a candidate or political party is sin,

and would be intelligent enough to communicate the same idea
in an indirect way to escape the prohibition.
It is the law that a statement to the effect that
a particular line of voting would be a sin is prohibited. In

44
Lalsing v. Vallabhdas the controversy centred around the
content of a message by one Dixit Maharaj, which was in the
following words:
For Vaishnavas, there cannot be a worse sin than
to vote for the Congress which took possession of
the management of Shrinathji Mandir by coercion
and by defaming and giving wrongful threats to
Tilkayatji. I have full confidence that the
Vaishnavas will not at all betray Shri
Vallabhacharyaji by voting for the Congress who
has insulted Mahaprabhuji.
The Gujarat High Court held it to be a corrupt practice j;

under Section 123 (2). Miabhoy J. observed:
I
Whatever may be the views which such a person may |
j
form, based upon the policy or the programme of I
the Congress Party or on the individual merit of
the candidate standing for the party, there is a j
44. A'.I.R. 1967 Guj . 62.

129
strong likelihood that, to an ordinary Vaishnav,
subject to religious influence, he is likely to
decide not to vote for the Congress Party on the
ground that, by doing so, he would be betraying a
great religous leader or that he would be
committing a sin and thereby endangering his

45
ultimate salvation
Here the returned candidate had highlighted a religious
issue and told the electors that a particular way of voting
was a sin. He was not referring to a conduct traditionally
45. Id. at 72. In Tirlochan Singh v. Karnail Singh A.I.R.

1968 Punj 416 the allegation was that the returned
Akali Dal candidate exercised undue influence in the
name of Sikh religion to compel a contesting candidate,
'named Amar Singh, to withdraw from contest. It was
further alleged that a poster was published at the
instance of the returned candidate stating that one of
the contesting candidates withdrew from the 'contest
because it was indicated to him that anybody opposing a
Panth candidate or not voting for such a candidate
would be the object of spiritual wrath. The Punjab High
Court held that the content of the poster amounted to
undue influence. !■
However, the petitioner failed to prove that the
poster was published with the consent or knowledge of ■
the candidate. The election was in fact set aside on ;
the ground of bribery. In Ravaneswar Madhei v. M. Tudu j
46 E.L.R. 549 it was alleged that speeches were !
delivered by the returned candidate and his associates |
wherein respondent No.l was described as the Adisakti j
and Adimata (alleged to relate to Goddess Durga) and it
was further stated that if the electors did not vote
for the respondent they would incur the divine wrath
and if they so voted they would have her blessing. The
question of law was not considered by the Orissa High
Court since the case failed on evidence.
130
presumed to be a sin. Hence it follows that in order to
constitute the corrupt’practice of undue influence, mere

i
saying that a particular kind of voting constitutes sin is
sufficient. Same is the legal effect if the term 'spiritual
wrath' is used instead of sin.
According to the view taken by the Jammu and

46
Kashmir High Court in G.H. Arman v. Pir Nizam-Ud-Din ,
i
Section 123 (2) prohibits not only the undue influence j

exercised in the name of gods and saints of a religion but
also in the name of local gods. The petitioner was a
defeated candidate in the election to Jammu and Kashmir
Legislative Assembly from Kishtwar constituency. In that

constituency there was a holy saint known as Shah Israr j
I
Sahib who was held in great veneration and respect by the j
people at large including Muslims and Hindus. j

• - . j
The allegation was that the returned candidate, J
stating himself to be the symbol of Shah Israr Sahib,
threatened the electors that anybody who opposed him would
be the source of displeasure of Israr Sahib and would be
answerable before Israr Sahib. The Court held that the above
statement would constitute corrupt practice 47
46. 44 E.L.R. 338.
47. The Court further stated that mere saying that the
candidate was the symbol of Israr Sahib and that his
candidature was in accordance with divine direction did
not attract the prohibition.
131
Undue influence may be exercised either by the
candidate or by the political party sponsoring him by way of
exploiting the spiritual feelings of the electors. In such
circumstances, the law insists the existence of a specific
statement that the particular line of voting is a sin or it
would render the elector an object of divine dipleasure or
spiritual censure. However, it is suggested that when the
exhortation is by a religious leader, a different criterion jl
should be applied to determine the matter. When one takes j
into account the influence wielded by religious leaders over
their followers, a less rigorous test to determine the j
element of corrupt practice of undue influence seems i
suitable. In an earlier decision the Election Tribunal,
Ernakulam, had occasion to consider the aspect. In M.M. 1

48
Manjuran v. K.C. Abraham the alleged matter was a circular i
49 , !
issued by an Archbishop of the Catholic Church . |
48. 10 E.L.R. 376. j
49. The circular conveyed the spiritual blessings of the

Archbishop in the name of God and the Holy See to
Parish Priests, other priests, Brothers, Sisters and
all believers in Christianity within jurisdiction. It
stated that the right to vote was tied up with certain
spiritual duties, failure to discharge which would be
harmful to the interest of the individual and the
country. The Archbishop stated the ecclesiastical
authorities were reminding Catholics of the duties in
order to prevent them from committing the grave sin. He
stated that the Church did not recognize Marxist
132
According to the Tribunal the English position on
this point should be considered in order to provide the
correct decision. For that purpose four earlier English

decisions, Borough of Galway^®, County of Longford^, County
52 53
of Tipperary , Southern Division of the County of Meath
were referred to, and it was concluded that the locus
classicus of the law on the subject was found in the
following judgment of Fitzgerald J. in Longford:
The Catholic, priest has, and he ought to have

it
great influence. His position, his sacred j

i
character, his superior education, and the j

i
j
identity of his interests with his flock ensure it j
to him; .... In the proper exercise of that j
influence on electors the priest may counsel,

/
Parties like K.S.P., R.S.P. Communist Party etc. He

pointed out that the opposition of the Church towards j
Marxist Parties was not due to political reasons but
merely due to spiritual and moral reasons. Hence no !
Catholic should vote for K.S.P. and other Marxist !
Parties. In the last paragraph of the circular he ;
directed all parish priests to read it on the ensuing j
Sunday, i.e. the 31st January, 1954 in all the Churches !
at the time of Holy Mass and exhort the people of their
duties.
50. 1 O'M and H 303.
51. 2 O'M and H 6.
52. 2 O'M and H 31. I
53. 4 O'M and H 130.

133
advise, recommend, entreat, and point out the true
line of moral duty, and explain why one candidate
should be preferred to another, and may, if he
think (sic) fit, throw the whole weight on his
character in the scale; buthe may not appeal to
the fears, or terrors or superstition of those he j

ii
addresses. He must not hold out hopes of reward j
here or hereafter, and he must not use threats of i
temporal injury, or of disadvantage, or of
punishment hereafter. He must not, for instance
threaten to excommunicate, or to withhold the i

sacraments'*4. ...
Dismissing the petition the Tribunal summarized the j
conclusion thus: 1
i
. . . the law does not strike at the existence of i
I
influence or its due exercise over others. Such
influence is implicit in human personality and the
advantages that wealth, education or a way of life
may confer on an individual. It is only with the
abuse of such influence that the law is concerned
and it cannot be said that there has been an abuse
simply because influence has been proved and its
operation established ... in the light of the
principles above said, and have no doubt in our
54. Supra, n.51 at 16. (emphasis added)

134
minds that the circular in question does not in

any way spell in the region of "undue |
influence"^. !
I
It is submitted that the view is not in conformity
with the object of the provision. The decision seems to
emphasize too much the principle formulated by the English
courts between 1869 and 1892. It will be disastrous to rely !
on the 19th century legal reasoning, without considering the
socio-political conditions prevailing in India. Moreover, i
appeal on the grounds of religion, race, caste etc. which is
a corrupt practice, according to Indian law is not a corrupt

I
practice under English law. This reveals that the makers of j
the Representation of the People Act were aware of the ji
influence of religion on the political behaviour of the j
Indian electorate. If the reasoning in Manjuran is Correct, i
the province and function of religion will be extended to
the political sphere. It is true that the religious leaders
have the right to express their political opinion and their
right to participate in the political process cannot be
denied. But while exercising such a legitimate right, the
political and religious issues should not be muddled.
55. 10 E.L.R. 376, 398-99.

135
In Ram Dial v. Sant Lai5® it was contended on

j
behalf of the appellant that a religious leader had as much !
|
a right to freedom of speech as any other citizen, and that
therefore-, his exhortation in favour of a particular
candidate should not have the effect of vitiating the
election. The learned Judge examined the nature and extent
of the right enjoyed by a religious leader to express his
opinion in election matters and observed:
. . . the religious leader has a right to exercise
his influence in favour of any particular i

i
candidate by voting for him and by canvassing

j
!
votes of others for him. He has a right to express !
his opinion on the individual merits of the j

candidates. Such a course of conduct on his part,
will only be a use of his great influence amongst
a particular section of the voters in the
constituency; but it will amount to an abuse of
his great influence if the words he uses in a
document, or utters in his speeches, leave no
choice to
the persons addressed by him, in the
exercise of their electoral rights 57
56. A.I.R. 1959 S.C. 855.
57. Id. at 860. In an earlier decision Moinuddin v. B.P.

Divgi 3 E.L.R. 248 the election petition contained the
allegation that the Mullaji Saheb, the community leader
136
The view, though correct, does not provide any

j
guideline to determine the situation in which no choice is |
left to the elector by the religious leader. In Kanti Prasad
v, Purshottamdas 58 the Supreme Court considered three
important questions regarding the ambit of the provision.
1. If the influence of a religious leader is made use
of to canvass votes, whether the religious leader
should have considerable following in the j
constituency? i
2. Whether the statement that a particular political j;

j
party is irreligious, or that natural calamities !
of Bohra community, canvassed votes for Congress

candidate. Upholding the right of a community leader to
canvass votes, Election Tribunal, Bombay observed:
It was open to the Mullaji Saheb to advise
his followers to support Congress candidates,
if he thought that that was the best course
for his community to follow under the
circumstances. So long as this was mere
advice given to his followers and not an
order issued to them as religious head of the
community with any religious sanction
attached to it, it would not amount to the
exercise of undue influence, (at 256).
In Jagajeevandas v. Sanjeeva Shetty 3 E.L.R. 358 the
Election Tribunal, Mangalore, examined the extent of
right enjoyed by a religious leader in the election
process and observed:
however eminent a person might be
whether in the religious or secular field, he
is as much entitled as any other to take part
in elections, and to advise or direct
electors in the matter of the exercise of
their franchise, (at 368).
58. A.I.R. 1969 S.C. 851.

137
have resulted because of its disregard of
religion, would constitute undue influence?
3. Whether canvassing votes by inducing electors to
believe that a political party had committed a sin
and so the people are visited with divine
displeasure would constitute corrupt practice?
Here it is not expressly stated that giving votes
to such a party is a sin. j

!
The disputed matter related to the speeches
delivered by one Shambhu Maharaj.
According to the view taken by the High Court the J

former passage 59 did not constitute corrupt practice, but
the latter^® was held to constitute corrupt practice on the
59. "This unworthy Congress Government has cut the nose of

Hindu Society. Sant Fateh Singh, the. religious
preceptor of the Sikhs fasted for 10 days;; ' whereas
Jagadguru fasted for 73 days, still this Government is
not even thinking of opening negotiations. This
unworthy Government accepted the contention of the
Sikhs after the fast of 10 days; whereas in spite of
the penance undertaken by Jagadguru by his fast of 73
days, the Government has not considered any topic in
this connection. Your Jagadguru has full confidence
that, except for ten crores who are the followers of
the Congress twenty to thirty crores from the Hindu
Society would help him."
60. "For example, if any Maulvi from Mucca had fasted for
73 days and had given such a mandate to our Muslim
brothers, then would they have voted for the Congress.
That you have to consider. In the same manner, if Fateh
Singh, the religious leader of Sikhs, had fasted for 73
days, would they (Sikhs) have voted for the Congress?
In the same manner if there were Parsis or Christians,
138
ground that Shambhu Maharaj had clearly appealed to the
Hindu voter not to vote for the Congress lest they might be
betraying their religious leader, particularly when he had i
fasted for 73 days for the cause of prohibiting cow j

i
slaughter. On appeal, the Supreme Court reversed and
observed:
In the present case there is no proof that !
Jagadguru Shankaracharya of Puri was the religious
head of the majority of the electors in this

i
constituency or exercised great influence on them.
It cannot be held on the facts of this case that

i
an ordinary Hindu voter in this constituency would I

feel that he would be committing a sin if he i
disregarded the alleged directive of the

Jagadguru*^. j

they also would vote for their religious preceptor. I
This is what you have to consider. The mandate of your
religious preceptor is that do not cast your vote for
anyone, the mandate of the Jagadguru is that let cows
be slaughtered, let bullocks be slaughtered. In Gujarat
State though there is ban, still bullocks, are allowed
to be slaughtered, the bullocks which give every
individual happiness throughout the life. This
Government asks for vctes in the name of the bullocks
(the Congress Party election symbol being a pair of
bullocks with yoke on) and I am, therefore, having an
experience. Do not vote for the Congress and by putting
the mark of vote on the symbol of bullocks amounts to
cutting the throat of a bullock by a knife symbolized
by your vote. It is my mandate that you should not do
this dastardly act."
61. A.I.R. 1969 S.C. 851, 856.

139
62
The view is erroneous because the standing of
the religious . leader in a particular community can have
relevance to the effect of such speech on the outcome of the
election. Since the law renders even attempts to undue
influence illegal, the matter was not relevant here though
it is relevant in the law of contract.
Hegde J. dissented and observed:
What S. 123(2) requires is to induce or attempt to
induce "an elector" - which means a single elector
- that he will be rendered an object of spiritual
censure if he exercises or refuses to exercise his
electoral right in a particular manner. But
undoubtedly the inducement or an attempt to induce
62. Similar view is taken by N.D.P. Namboodhiripad, J. of

Kerala High Court in Antony v. K.M. Mani 1978 K.L.T.
86. It was observed:
. it shall not be forgotten that the
position occupied by religious leaders of
different religions or even with respect to
leaders of different denominations in the
same religion is not identical. For instance,
it is well-known that the influence wielded
by the clergy of the Catholic denomination
over its followers is wider and deeper than
the influence enjoyed by the clergy of the
other deonominations of the Christian faith.
It is not, therefore, desirable to lay down
any guideline for testing the real nature of
the activities of a religious dignitary for
the purpose of deciding whether the activity
complained of falls within the mischief of
S.123(2) of the Act. The conduct has to be
tested on the basis of the relevant
circumstances, like the person, place, the
manner of activity, etc. (at 96-97).
140
complained of should be such as to amount to a
direct or indirect interference or attempt to
interfere with the free exercise of electoral
right. Whether a particular statement comes within
Sec. 123 (2) or not depends on various factors
such as the nature of the statement, the person
who made it and the persons to whom it is
addressed. No doubt the nature of the statement in
question is of utmost importance. They may exploit
well accepted religious beliefs but that is not
the only thing that comes within the mischief of
Section 123 (2). A respected religious preacher
may induce or attempt to induce the illiterate and
superstitious voters who form the bulk of our
voters that they will become the object of divine
displeasure if they do not exercise their
franchise in a particular manner. His statements
may not have any support from the religious books
but yet they may amount to a corrupt practice in

, 63
law
In Kanti Prasad two other passages 64 in the speech
63. A.I.R. 1969 S.C. 851, 859.
64. The content of the second speech (Ex.K) was as follows:

1. "The Congress says that it has brought happiness and
will give happinessin future; but even a father
cannot give happiness to his son, nor can' a son give
happiness to his father. Giving happiness rests in
141
of Shambu Maharaj were also alleged to amount to corrupt
practice.
The High Court held that the two passages read
together constituted undue influence by holding out threats
of divine displeasure and spiritual censure. The Supreme
Court reversed and observed:
The High Court held that in these passages there
was a direct causal relationship between the cow-
slaughter and the natural calamities and this
clealy showed that the voters were told that if
they did not want such natural calamities to visit
them they should not vote for the Congress Party
and thus avoid the divine displeasure which was
responsible for these natural calamities. It seems
to us that this.is not a fair reading of these two
passages. Cowslaughter is not mentioned in this
the hands of God. But God gives happiness where

there is religion. He does not give happiness to the
irreligious".
2. "Formerly there were no famines. Possible once in
100 years there might be one famine. As against that
now-a-days every year there is some natural calamity
like a famine. Either there is no rain or there is
frost or there is visitation of locust or there is
some disease in the crops and some calamity or the
other is constantly visiting us. The reason for this
is that Congress permits slaughter of 33,000
bullocks everyday. When slaughter of cows is banned,
bullocks are allowed to be slaughtered. In Gujarat,
12,000 bullocks are being slaughtered".
142
passages except to say that cow-slaughter is
banned in Gujarat. The casual (sic) relationship,
if any, exists between slaughter of 33,000
bullocks every day and natural calamities. This,
in our view, cannot amount to constitute "corrupt
practice" within Section 123 (2) proviso (a) (ii).
The law does not place any bar on describing a
party as irreligious or saying that because , that
political party is irreligious natural calamities
have resulted because of its disregard of

... 65
religion
However, it is to be said that permitting a candidate to
state that the natural calamities were the result of the
irreligious act of a political party clearly attracts
Section 123 (2) of the R.P. Act. There are two reasons which
compel one to draw such a conclustion. First, India is a
country where the majority of electors are illiterate and
superstitious. The impact of a statement, having the
appearance of religious sanctity on such illiterate people
cannot be ignored. If such statement involved the issue of
divine displeasure it will definitely influence the free
exercise of electoral right of the illiterate voters.
Secondly, there is no need to drag the religious issue to
the election process.
65. A.I.R. 1969 S.C. 851, 856-57.

143
The R.P. Act clearly intends to exclude the
religious issues from the election process. The secular
values enshrined in the Constitution also postulate a total
exclusion of the religious element from the electoral
process. In the present case, there was a clear attempt to
make use of religious issues for electoral purposes, which
amounted to undue influence. Hence the disputed statement,
it is submitted, would attract both sub-sections (2) and

zr c
(3) of Section 123 of the Act.
67
Regarding the content of the third speech the
Supreme Court found that the first and third passages read
together constituted "an attempt to induce the electors to
believe that they would become the object of divine
displeasure if they voted for Congress and thereby allowed
66. See Chapter IV infra.

/
"The time of election has arrived. The Congress

Party is carrying on its propaganda desperately but
what I want to say is that if Swatantra Party comes
into power then it will not turn your roof-tiles
into gold. Only God gives happiness. There is frost,
there is rust in the crops, there is excess of
rains, there is a famine all these are due to the
workings of God. Every day twenty-four crores. of
cows are being slaughtered, then how God will
tolerate that and how will you get happiness?"
"Look at the Congressmen who are destroyers of Hindu
Religion".
"Every year we get one or the other natural calamity
like excessive rain, or failure of rain or
earthquake. This happens because they ask for votes
in the name of live bullocks, whereas they get the
bullocks slaughtered. The symbol should be of
butcher and except ruthless and Hard-hearted
Congress nobody else will get bullocks' slaughtered".
144
cow-slaughter to be continued". The learned Judge cited the
observation of Hidayatullah C.J. in Narbada Prasad v.

C Q
Chhaganlal that "to remind the voters that they would be
committing the sin of gohatya would be to remind them that
they would be objects of divine displeasure or spiritual
censure". The learned Judge further observed that in the
first and third passages there was clear implication that if
you voted for the Congress who were responsible for 24
crores of cows being slaughtered then God will be
displeased; in other words there will be divine displeasure

69
and the voters will not get happiness
An allied area is canvassing of votes by way of
injecting fear into the minds of people that the particular
line of voting would cause danger to his religion. If this
sort of soliciting votes is made by way of direct appeal it
would attract the prohibition against appeal on the'' ground
of religion. The issue is whether indirect appeals of that
nature could be brought within the vice of undue influence.

70
In Abdul Jalil v. Rathindra Nath the High Court of Assam
considered this aspect. The facts disclose that in an
68. A.I.R. 1969 S.C. 395.
69. A.I.R. 1969 S.C. 851, 858.
70. A.I.R. 1958 Ass. 51.

145
election meeting an article published in a newspaper,
stating that the leftists did not admit the independence of
India, and if they were elected, the Muslims would be driven
out of India, was read out. The Tribunal held it to be undue
influence. But on appeal the Assam High Court treated it

71
only as an appeal on the ground of religion
Threat of Social Ostracism and Excommunication
Being a social animal, the relationship of man
with the society is inseparable. In an undeveloped society,
caste, community or tribe, and in a developed society clubs,
political parties, social organizations, trade unions,
professional bodies etc. form the avenues for social
relationships. In undeveloped societies social ostracism or
excommunication will make an individual or family unable to
live in the society. Hence the threat of social ostracism or
excommunication has the same effect as a threat of physical
injury. Proviso (a) (ii) of Section 123 (2) of the
Representaion of the People Act intends to avoid this evil
from the election process by treating it as corrupt practice
of undue influence.
71. Id. at 55-56.

146
In Bhagwan Datt Shastri v. R.R. Gupta it was
proved that leaflets were circulated in a constituency to i
the effect that every member belonging to the Gond community !
who did not vote for the returned candidate would be
excommunicated. The leaflet was distributed by the agents of
the candidate. The Tribunal ordered to set aside the
election and the Supreme Court upheld the decision.
Role of the Political Parties and Their Leaders
In modern democracy the role of political parties

73
is very crucial . They are said to be the "means of
mobilizing electoral support for the measures being debated
72. 11 E.L.R. 448.
73. According to Norman D. Palmer "no modern democratic j

country has been able to function without both I
elections and parties as meaningful institutions in the i
political system". Elections and Political Development: j
The South Asian Experience (Vikas, 1976) p.26. See also j
G. Onyekwere Nwanko, "Political Parties and their Role ;
in the Electoral Process: The Nigerian Experience with i
the Presidential System of Government", 17 J.C.P.S. 284
(1983); Shiv Lai (ed.) International Electoral Politics
and Law Vol.II (Election Archives, New Delhi, 1983);
Frank Sorauf, Party Politics in America (Boston, 1968);
Leon D. Epstein Political Parties in Western
Democracies (New York, 1967); Vincent, J.R., Formation
of Liberal Party 1857-1868 (London,1966) John Fenton,
People and Parties in Politics (Glenview Illinois,
1966); Alford, R.R. Party and Society: The Anglo
American Democracies (London, 1964).
147
74 . .
by the political class . In India, the political parties
75
played a significant role m the independence movement
After independence the entire political sphere was dominated

76
by the political parties and their leaders . Though some
English writers have the opinion that the two party system
77
is the best thing for the smooth functioning of democracy ,
multiplicity of political parties is an essential feature of

78
Indian democracy . However the Constitution is silent about
79 i
the formation and functioning of political parties . But
74. Peter G.J. Pulzer, Political Representation and

Elections in Britain (London, 1967) p.61.
75. See Misra B.B. Indian Political Parties: Historical

Analysis of Political Behaviour upto 1947 (Delhi
University Press, 1976).
76. This is evident from the fact that the representation
of the members other than the representatives of
political parties in the Parliament is negligible. See
India 1991 (Government of India, 1992) pp.1045-65.
77. See Amery L.S. Thoughts on the Constitution (Oxford,

1947) pp. 16-17. According to Lowell A.L. "a division
into two parties is not only the normal result of the
parliamentary system, but also an essential condition
of its success".
Government and Parties in Continental Europe Vol.1 (New
York, 1896) pp.71-72. See also Peter G.J. Pulzer, supra
n. 74 at 41.
78. See Shivial, National Parties of India (New Delhi,

1971); James Walch, Factions and Front : Party System
in South India (New Delhi, 1976).
79. Before the enactment of Representation of the People

(Amendment) Act, 1989 there was no statutory provision
in this regard. But the Election Symbols (Reservation
148
the role of the political party has been indirectly
recognized by the Constitution since while determining the
disqualification of a member of the Parliament or State
Legislature on the ground of defection special consideration

is given to the split in the political party^.
The persons holding high offices in the executive
and legislative branches of- the government are chosen from
among the leaders of political parties. Traditionally

/
persons holding certain high offices like President, Vice-
President and Speakers of House of People and State
Legislative Assemblies would be withdrawn from their
political parties during the tenure of their office. But
Prime Minister, Chief Ministers and other Ministers continue
their political affiliation. Sometimes they may be office
bearers of political parties. Being the representatives of
political parties the ministers may participate in election
campaigns. Whether the practice of canvassing votes by
persons holding high offices like ministers would come
within the purview of undue influence was an issue in many
and Allotment) Order, 1968, issued by the Election
Commission of India under Art. 324 of the Constitution i
provides for recognition of political parties.
80. See Tenth Schedule, The Constitution of India. See also

Subhash C. Kashyap, Anti-defection Law and
Parliamentary Privileges (Bombay, 1993) pp.1-117.
149
election petitions. The courts had no hesitation in
upholding their legitimate right to solicit votes, without
misusing the official position.

In Baburao v. Dr. Zakir Hussain**'*' while upholding
the Prime Minister's right to canvass votes in the
Presidential election, the Supreme Court observed:
. . . it is open to Ministers to canvass for
candidates of their party standing for election.
Such canvassing does not amount to undue influence
but is proper use of the Minister's right to ask
the public to support candidates belonging to the
Minister's party. It is only where a Minister
abuses his position as such and goes beyond merely
asking for support for candidates belonging to his
party that a question of undue influence may
arise. But so long as the minister only asks the
electors to vote for a particular candidate
belonging to his party and puts forward before the
public the merits of his candidate it cannot be
said that by merely making such request to the
electorate the Minister exercises undue influence.
81. A.I.R. 1968 S.C. 904. One of the allegations was that
the Prime Minister had deputed certain senior members
of the Cabinet to the various States to influence the
members of the electoral college. The Supreme Court
refused to treat the action an undue influence, stating
that"mere canvassing of support for a candidate can
never amount to undue influence" (^tt 914).
150
The fact that the Minister's request was addressed
in the form of what is called a whip is also
immaterial so long as it is clear that there is no
compulsion on the electorate to vote in the manner

indicated*^. -
The view is correct to the extent that the
minister can canvass votes for the candidates set up by his
party. Here what is being done by a political party is to
capitalize the charisma and reputation of the party leaders
to secure votes. This sort of election campaign need not be
proscribed because the individual merit and calibre of the
leadership are determining factors in the selection of the

holders of political office^.
82. Id at 912-913. A similar reasoning is seen in the

earlier decisions of various High Courts and Election i
Tribunals. See S. Mehar Singh v. Umrao Singh A.I.R. |
1961 Punj. 244; Jayalakshmidevamma v. Janardhan" A.I.R. j
1959 A.P. 277; Y.S. Parmar v. Hira Singh Pal A.I.R.
1958 H.P. 29; Triloki Singh v. Shivrajwati Nehru 16 j
E.L.R. 234; N. Sankara Reddi v. Yashoda Reddi 13 E.L.R.
34; Radhakrishna v. Tara Chand 12 E.L.R. 378; Mast Ram
v. S. Iqbal Singh 12 E.L.R. 32; Amirchand v. Surendera
Lai Jha 10 E.L.R. 57; Linge Gowda v. Shivanjappa 6
E.L.R. 288.
83. The following observation of Sarkaria J. in Bachan

Singh v. Prithvi Singh A.I.R. 1975 S.C. 926 is relevant
in this context.
Doubtless the definition of 'undue influence'
in sub-S. (2) of Section 123 is couched in very
wide terms, and on first flush seems to cover
every conceivable act which directly or
indirectly interferes or attempts to interfere
with the free exercise of electoral right. In
one sense even election propaganda carried on
vigorously, blaringly and systematically
151
But such solicitation may exceed the permissible
limit so as to become an abuse of position and constitute
undue influence. For example, if a minister canvasses votes
of the employees of his department by putting them under
threat of transfer, it may come within the purview of
corrupt practice. Similarly, a minister may induce an
employee to vote in a particular way by offering promotion
etc. t
through charismal leaders or through various

media in favour of a candidate by recounting
the glories and achievements of that candidate
or his political party in administrative or
political field, does meddle with and mould the
independent volition of electors, having poor
reason and little education, in the exercise of
their franchise. That such a wide construction
would not be in consonance with the intendment
of the legislature is discernible from proviso
to this clause. The proviso illustrates that
ordinarily interference with the free exercise
of electoral right involves either violence or
threat of injury of any kind to any candidate
or an elector or inducement or attempt to
induce a candidate or elector to believe that
he will become an object of divine displeasure
or spiritual censure. The prefix 'undue'
indicates that there must be some abuse of
influence. 'indue influence' is used in
contradistinction to 'proper influence'.
Construed in the light of the Proviso, Clause
(2) of S. 123 does not bar or penalise
legitimate canvassing of appeals to reason and
judgment of the voters or other lawful means of
persuading voters to vote or not to vote for a
candidate. Indeed such proper and peaceful
persuasion is the motive force of our
democratic process (at 929).
152
84
In Ch. Inder Singh v. G. Lai Nanda the returned
candidate was the Union Minister of Railways. The allegation
was that the Minister had transferred certain goods-clerks
to appease certain electors who were hostile to the
employees. The case failed for lack of evidence. However,
clarifying the question of law it was observed that such
transfer did not amount to a corrupt practice. The Railway
Minister did not cease to hold his office merely because he

/
was standing at the election. It was his duty to redress the
lawful grievances of the public concerned with the railway

administration85.
It is true that a minister has the power to
transfer employees of his department. But if that power is
abused for securing votes such orders of transfer may be set
aside at the instance of the employees. Such practices do
not amount to undue influence, because no influence is
exercised over any person. In the present context, the
allegation, even if proved, would have only amounted to
bribery. Here the element of threat is totally absent and
what was done by the minister was to give a gratification,
viz. the transfer of some clerks who were hated by some of
the electors.
The main allegation in Amir Chand v. Sucheta
84. 49 E.L.R. 545.
85. Id. at 580.

153
86
Kripalani was that Pandit Jawahar Lai Nehru induced an
independent contesting candidate to withdraw from1 contest.
The independent candidate had deposed that Nehru only
advised her to withdraw from the contest. While rejecting
the contention, Justice Tek Chand examined the scope of the
provision, and it was observed:
An advice, argument, persuasion or solicitation
cannot constitute undue influence. Honest
intercession even importunity, falls short of
controlling a person's free exercise of his will.
A persuasion, which leaves a person free to adopt
his own course, is not undue influence. Otherwise
a suggestion or an entreaty from somebody, held in
esteem, could be treated as undue influence. In
the absence of proof that a person has been, in

consequence of the alleged influence, deprived ” of
free agency no question of there being an undue

influence arises®^.
The learned Judge makes a distinction between a
suggestion or advice and inducement. The latter may be

inferred only if some post or office is offered as a reward
for such withdrawal. However, the influence exercised by a
political leader by issuing a circular to the effect that
86. A.I.R. 1961 Punj. 383.
87. Id. at 386.

154
members of a party who did not withdraw the candidature
would be expelled from the party could not be termed undue.
influence.
Such interference may at best be termed political
intimidation, i.e. even if it amounts to a direction to the

'
members to cast the votes in a particular way, the law
cannot treat it as undue influence. A contrary view will
certainly damage the integrity and unity of a political
party. Hence a distinction from the threats of
excommunication held out by religious heads is necessary 1

l
here. Three reasons may be advanced for justifying such
special treatment. First, a political party is a body of
persons engaged in political activities, though it may have J

88 !
some other activities including social services . The j
I
I
programme and policies of political parties are declared in
manifestoes to be taken into account by the electors in
choosing their representatives. The cardinal role of
political parties in the election process cannot be
88. "The essential functions of political parties in a

constitutional democracy are the integration of a
multitude of interests, beliefs, and values into one or
more programs or proposals for change and the
nomination of party members for elective office in the
government. In both functions, the party serves as a
link between the rulers and the ruled: in the first
case by allowing the electorate to register an opinion
on policy and in the second by giving the people a
chance to choose their rulers." 14 Encyclopaedia
Britannica (1974) pp.718-19.
155
discarded. In the interests of internal concurrence and 9

j
integrity a political party possesses the right to regulate
its own affairs. This includes the right to take
disciplinary action against recalcitrant members, who
disobey the directions of the party regarding the line of
voting. Thus it may be said that while taking the membership
of' a political party a person surrenders his right to make
free/ choice in voting. But through that action he acquires
other rights, viz. the right to participate in the
determination of the office-bearers and formulation of the
policy of the party etc. Thus a member of party waives one
political right to acquire other more important political
rights. It is pertinent to note that the member of a
political party is a person having active participation in
the political process compared to an ordinary citizen;
though his right to free exercise of voting right is
controlled by the party.
Secondly, political party is a social institution
of recent origin 89 and is different from religion, caste or
89. It has been observed:

The term "political parties" emerged in the
nineteenth century with the development of
representative institutions and the expansion
of the suffrage in Europe and the United
States. It designated organizations whose goal
was the capture of public office in electoral
competition with one or more other parties.
Subsequently the term "party" was extended to
include political organization not engaged in
electoral competition: minor parties which had
156
race. Being members of a religious-oriented and closed
society, the Indian electorate may not dare to face the I

consequences of excommunication. But the expulsion from |
political party stands on a different footing since he can
join another party. Moreover, the attitude of the society
towards a person excommunicated from religion is entirely
different from that towards a person expelled from a
political party. Though the former may be shunned by a i

i
considerable section of the society, the latter does not
have to face such a hostile reaction. Hence a threat of
expulsion from a political party may not be equated with I

i
social ostracism, excommunication or expulsion from a caste.
Thirdly, in elections to the office of the !

90 91
President , the Vice-President and the members of the
92 1
Council of States , members of legislatures constitute the j
no realistic expectations of gaining office

through appeals to the electorate,
revolutionary organizations seeking to abolish
competitive elections, and the governing groups
in totalitarian states.
11 International Encyclopedia of the Social Sciences
(New York, 1972) p.428.
90. See Art. 54 of the Constitution.
91. See Art. 66, Ibid.
92. See Art. 80(4), Ibid.

157
electorate. The vast majority of this electorate are persons
elected under party tickets. So it seems legitimate for a
political party to give directions to its members! to cast

93
votes in favour of a particular candidate . If a political
party's power to direct its legislators to vote in favour of
a particular candidate in such elections is conceded, its
right to control the voting rights of ordinary members
should also be approved.
On the floor of the legislature they are bound to
act in accordance with the whip issued by the legislature
party. If they act in contravention of the whip given by the
party they are liable to be disqualified under the Tenth
Schedule to the Constitution. Hence, whether the issuing of
whip to legislators directing to cast their votes in favour
of a candidate amounts to undue influence is a question of
prime importance. Prior to the enactment of the Tenth
Schedule to the Constitution, the Supreme Court had the
occasion to consider the aspect in Baburao v. Dr. Zakir

94
Hussain . The facts reveal that the Chief Whip of the
Congress Party directed the members of the legislature party

!
to mark the first preference against the name of Dr. Zakir
Hussain in the Presidential election. It was further
93. See infra.
94. A.I.R. 1968 S.C. 904.

158
directed that no other preference should be marked for any
other candidate. However, the direction contained no threat
of disciplinary action for non-compliance. In the
Presidential election the system of proportional
representation by means of single transferrable vote is
followed. In that system the second preference vote would
have the same value as that of the first preference if the

candidate who got the first preference is eliminated. The
contention of the petitioner was that the direction
prevented the electors frcm marking any preference other i
than the first preference and amounted to an interference
with the free exercise of electoral right constituting undue
influence. Wanchoo C.J., speaking on behalf of the Court
held that, such a request or advice did not interfere with
the free exercise of their electoral right, for the electors
still would be free to do what they desired in spite'of the

, . 95
advice
95. Id. at 914. In an earlier case, R.B. Surender Narayan

Sinha v. Amulyadhone Roy Sen and Poddar, Indian
Election Cases (1940) p.188. the question raised before
the Tribunal was whether a whip to cast their
preference in a particular manner could amount to undue
influence. The Tribunal held that the leader of the
party was entitled to use his influence as a leader and
he could not be deprived of that right because he
happened to be a minister. The issue of a whip of that
kind was there held to be no more than canvassing in
favour of a candidate of the party to which the leader
or the Chief Minister belonged.
In Mithilesh Kumar v. R. Venkataraman A.I.R. 1987
159
It is to be said that two aspects are involved in
the issue. First, whether a political party can lawfully
direct its members to cast their votes in favour of a
candidate? Second, whether it is legitimate to insist that
the first preference alone should be marked in an election
conducted under the system of proportional representation by
means of single transferable vote. Even if the first
question may be answered in the affirmative, the latter
direction leaves no free choice with the elector. The
distinction made here is between a direction to vote for a
particular candidate, and not to vote for someone. It seems
legitimate for a political party to direct its members to
vote in favour of a particular candidate. The fact that in
the present case the voters are the elected representatives
and so the deputies of the people cannot be ignored. They
are persons who have secured the mandate of the people as
being the representatives of a political party. If they are
elected as independents there is no question of issuing whip
by a political party. In the case of representatives who
S.C. 2371 it was alleged that in the Presidential

election the Congress (I) party issued a whip to its
legislators asking them to cast their votes in favour
of Mr.R. Venkataraman and it was a threat amounting to
undue influence. The petition was dismissed on the
ground of lack of cause of action.
160
contested election as the candidates of political parties,
the organizational, financial and ideological support of the
party is a crucial factor paving the way for their success.
It may be said that the mandate given by the people is not
for an individual but for a political party. These factors
give the party a moral right to control its legislators. It
may be remembered in this context that if a member of the

Parliament or legislative assembly belonging to a political
96
party , voluntarily gives up his membership of such
political party or if he votes or abstains from voting in
the House contrary to any direction issued by the political
party "he shall be disqualified for being the member of the
House". Hence it is clear that the Constitution itself j
recognizes the right of a political party to control the j
political behaviour of a legislator, including his voting !

- • . ' - - i
I
right in relation to the proceedings of the House. In the
case of voting in the presidental elections he does not
suffer any disqualification even if he votes in
contravention of the whip issued by the party. The only
thing that can be done by the political party is to expel
him from the party. However, in a system of secret ballot it
is difficult to ascertain whether he had voted in accordance
96. See the Tenth Schedule of the Constitution -of India.

For critical study, See B.A. Masodkar, Law Relating to
Electoral Disqualification (1986) pp.113-155.
161
with the direction of the party.
The directions having a negative character should
be treated as legitimate.
False Statements
The publication of false statements intending to
interfere with the free electoral right of a person may also
amount to corrupt practice under Section 123 (2). Since
under Section 123 (4), publication of a false statement in
relation to the personal character and conduct of a
candidate constitutes separate corrupt practice, normally
the election petitions do not bring such allegations 97 under
97. But in Abdul Rahiman v. Radha Krushna A.I.R. 1959 Ori. !

188 false statement about personal character was j
treated as undue influence. The pamphlet contained
following allegations:
Without any consideration for your own and
others, you acted as a devil. Would anybody
now be able to save you if you are beaten
mercilessly? Having done all the above
mischiefs, now you are appealing to the
electors for their vote as a shameless
person. If there were a grain of shame left
in you, you would not have progressed at all.
You are a thief and a Badmas and you should
not remain in our land. You who belong to the
Ganatantra party are only fit for the
gallows.
The leader of your Party was making
money by selling widows is well-known to the
raiyats. Since there is not a bit of sense
left in you. You are now seeking votes of
these raiyats of Koraput. They will no longer
be dissuaded by your words.
See also Radhakanta Mishra v. Nityananda Mahapatra 19
E.L.R. 203.
162
the head 'undue influence'. However, for presidential j

I election publication of a false statement is not a specific
corrupt practice. Hence if there is an interference with the
free electoral right of a person through this means, the
matter has to be brought under the head of undue influence.

. . 96 the Supreme Court had occasion
In S.K. Singh v. V.V. Giri
to consider the issue. The facts show that an anonymous
pamphlet was distributed in the Central Hall of the
Parliament, giving various fictitious incidents of sexual

99
immorality of N. Sanjiva Reddy, the Congress candidate. It
was alleged that it was published at the instance of the
rival candidate, V.V. Giri. One of the contentions taken on
behalf of the respondent was that an anonymous pamphlet
could not have any influence on the members of the ;
Parliament. ,
Justice Sikri, who delivered the judgment 'for the j

majority,rejected the contention and observed:
98. A.I.R. 1970 S.C. 2097.
99. The pamphlet read: "Should the name of the Congress be

lowered to such depths that this moral leper, this
. deprived man should be set up as the Congress candidate
for the highest post?" It further added: "A senior
Congress M.P has expressed the fear: If Sanjiva Reddy
becomes President, he will turn Rashtrapati Bhavan into
a harem, a centre of vice and immorality."
100. Sikri, Shelat and Vaidialingam' JJ. constituted the

majority.
163
But in our opinion this argument is fallacious.
First, this has no relevance to the question
whether any attempt to interfere with the
electoral right has been made or not. Secondly, a
series of anonymous attempts in a country like
ours would have as much, if not more, effect as
one open powerful attempt. It would be dangerous
to provide a sanctuary to anonymous attempts.
Thirdly, on the facts of this case, can we say
that the distribution in the Central Hall is the
same thing as anonymous publication? If a member
of Parliament distributes a pamphlet, is he not
identifying himself with it unless he expressly
dissociates himself from the pamphlet? It seems to
us that the distribution in the Central Hall by

members of Parliament has the same effect as ' if
they had endorsed the pamphlet in writing^^".
The learned Judge held that certain kinds of false
statements would fall both under Section 171-C and 171-G of

102
the Penal Code . It was pointed out that the making of
101. Id. at 2116.
102. Sections 171-C and 171-G define the electoral offence

of undue influence and publication of false statement
respectively.
164
such a false statement a distinct offence under Section 171-
G did not mean that it could not take the graver form of j
undue influence punishable under Section 171-F. 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 j
maker or the publisher of such a statement. Therefore, the j

1 !|
degree of gravity of the allegation is the determining j
factor in deciding whether it falls under Section 171-C or |

103 i
Section 171-G . \
According to Bhargava J. the absence of the j

|
specific ground of publication of false statement in the j
Presidential and Vice-presidential Elections Act was j
conclusive of the matter. ' j
Justice Mitter, who delivered another separate j

i
judgment, agreed with the majority view and observed that if j
i
anonymous posters containing defamatory matter about a
candidate1s personal conduct or character were to be
displayed in prominent places in the constituency so as to
attract the notice of electors, it would come within the
mischief of Section 171-G of the Indian Penal Code but would
103. Id. at 2113.

165
fall short of exercise of undue influence under Section 171-

i
G. However if an unsigned pamphlet containing matter
defamatory of the personal conduct or character of a
candidate be pressed personally upon an elector by another
with an attempt to make the receiver believe that there was
some basis for the charges levelled against the candidate it

104
would come within the purview of undue influence
Though all kinds of publications of false
statement may not come within the purview of undue j
influence, certain types of statements should constitute the i
corrupt practice of undue influence. Since Presidential and j
Vice-Presidential Elections Act does not state anything j
about publication of false statements, only those statements I
which would come under Section 123 (4) or Section 123 (2) of j
the R.P.Act may be treated as corrupt practice so far as the
Presidential election is concerned.
The factual situation was entirely different in

Biswanath v. Haralal Das^^, where the allegation was that ,
the returned candidate belonged to the Progressive Party but
used the Congress Party.flag for his election campaign. This
was to induce the voters to believe that he belonged to the
Congress Party. The Tribunal treated it as corrupt practice
104. Id. at 2161.
105. A.I.R. 1958 Ass. 97.

166
and ordered to set aside the election. But on appeal the
Assam High Court reversed. It was observed:
Clause (b) of Sec. 123 (2) clearly lays down that
a mere exercise of a legal right without any
intention to interfere with an electoral right
shall not be deemed to be interference within the
meaning of this clause. It cannot be contended

that the use of the flag was illegal"'"^.
The view is clearly erroneous and is the result of a
misconception that the using of the flag of another
political party is a legal right. Though the law is silent
about the use of flag by a political party, the common man
considers the flag used by a party as the symbol of that
party. So if the candidate of one political party uses the
flag of another party for the election campaign his
intention is to pretend himself as the candidate of the
latter. The action is clearly fraudulent and is intended to
interfere with the free exercise of the electoral right by
way of false representation. Hence it will amount to undue
influence.
106. Id. at 102.

167
Proviso to Section 123 (2): A Protective Umbrella
Political leadership holds the high offices in the
hierarchy of administration and the power to take policy
decisions is vested in them. Mostly decisions are taken by
them with an eye on vote banks, and if such decisions are
announced on the eve of election, the intention is to woo
the voters, the intended beneficiaries. Such proclamations
of intended programmes have to be regulated by law without
curtailing the liberty of the administration to take
beneficial action. However, if the persons holding high
public offices, like ministers, take action or make policy
declarations on the eve of elections intending to secure the
votes of a particular section, that may not be treated a
healthy practice. But. the protective umbrella created by the
proviso (b) to Section 123 (2) takes care of such actions.
According to the proviso, "a declaration of public
policy, or promise of public action or mere exercise of the
legal right without intent to interfere with an electoral
right shall not be deemed to be an interference" with the
free electoral right. So the spelling out of public policy
and the performance of an official duty by a person holding
public office are exempted from the purview of the corrupt
practice.
168
107
In S. Mehar Singh v. Umrao Singh it was
|
alleged that the returned candidate had promised to procure !
the cancellation of the allotment of lands to Bahawalpuri
displaced persons in Faridkot Tehsil and to get. them land
allotted in Tehsil Sisra, and also to get the valuation of
their lands revised in case they voted for him. He caused
the Revenue Minister to visit some villages in. support of

i
!
the promise. The facts do not disclose any promise made by
the Revenue Minister and as such is not truly illustrative
of the point. Both the Tribunal and the High Court refused
i
108 :
to treat it as undue influence . Mohan Singh v. j
Bhanwarlal 109 also involved a promise by a candidate about

writing off loans due to banks, removal of taxes and repeal i
of some laws. The High Court refused to treat it as corrupt j
practice.
107. A.I.R. 1961 Punj. 244.
108. Falshaw J observed:
. . . I agree with the view of the learned

Tribunal that even if the candidate did make a
promise that he would try to get grievanes
remedied and got the Revenue Minister to reinforce
his promise, this amounts to only a promise of
public action and not individual benefit to such
person as the promise was made to (sic) (id. at
249).
109. A.I.R. 1964 M.P. 137.

169
The effect of such promises by responsible
ministers was considered by the Punjab High Court in Ram

Phal v. Braham Parkash^^^1. The facts reveal that in an
election meeting of the returned candidate the Union
Minister of Home Affairs made a promise to the traders that
the state salestax law would be amended to provide some tax
exemption. The allegation was that the promise was
calculated to interfere with the free electoral choice of
the traders, and hence amounted to undue influence.. The High.
Court rejected the contention and pointed out that it was
only a promise of public action expressly exempted by the
proviso. Justice I.D. Dua reasoned thus:
In a Welfare State, like ours, where the popularly
elected representatives of the people hold reins
of the Government and run the State administration
solely for the general benefit of the people, / it
is only fit and proper that those in power
actually and promptly react to the needs and
demands of the people whose chosen representatives
they profess to be. This basic and fundamental
principle appears to me to underlie proviso (b) to
Section 123 (2). If the Home Minister in 1957 felt
that a provision of law imposing tax on certain
commodities was in fact too harsh and called for
110. A.I.R. 1962 Punj. 129.

170
relaxation in pursuance of the legitimate demands
of the tax-payers concerned; then I fail to see
how the fact that the Minister concerned
favourably reacted to the just needs and demands
of the people can possibly be construed to amount
to a corrupt practice of undue influence. This
public action may have influenced some voters in

their decision as to fcr whom they should vote but
it can hardly be described to be undue

111
influence
Upendralal v. Narainee Devi

112
involved ji
1
governmental action and not mere promise of future action. !
3.13 |
The facts show that on the eve of election an Ordinance |
was promulgated granting exemptionfrom payment of land j

revenue in certain cases. It was contended that the number |
of tenants benefitted by the said measures was very large j

being more than thirty thousand and amounted to undue
influence. The Madhya Pradesh High Court held that the j

Ordinance was general in character, and could not amount to
undue influence simply because, several persons had taken
111. Id. at 141.
112. A.I.R. 1968 M.P. 89.
113. The date of election of returned candidate was

20.2.1967 and the Ordinance was promulgated with effect
from 23.12.1966.
171
benefits under it. The Court failed to consider whether the

9
Ordinance was an abuse of power in the sense intended to
secure votes, and whether it would have been covered by the
proviso as an exercise of a legal right without intent to
interfere with the electoral right. The fact that the
learned Judge was confused about the matter is clear from
the following observation:
• It cannot amount to undue influence or bribery

/
unless the vires of the act was challenged and it
were established that it was merely a colourable
device to bring the mala fide legislation into
Thus the learned Judge .equates undue influence in
election law to the constitutionality of an Ordinance. The
learned Judge seems to be even oblivious of the legal
position that Ordinance, being a legislatives measure, is
beyond challenge on the ground of malafides. But one has to
concede that if such powers are exercised to secure votes,
it will definitely pollute the election process. The
practical difficulty in such cases is that the returned
candidates may take up the contention that the Governor had
promulgated the Ordinance not as his agent or with his
114. A.I.R. 1968 M.P. 89, 93.

172
consent. Such a defence appears formidable in the case of
ordinary candidates, and it seems such a defence will not
apply to erstwhile ministers in the Cabinet. It is submitted
that a contrary view by the High Court would have had its
salutary effect as no cabinet would indulge in such
exercises.
The members of the House of People and the State
legislative assemblies are chosen from territorial

/
constituencies. Hence it is considered the duty of a
legislator to initiate the development works of the
constituency. If the legislator is a minister, he himself
may have to sanction development works which naturally
create a positive response on the people. Whether such
initiative taken by a candidate constituted corrupt practice
was an issue in many election petitions. Earlier such
actions were challenged only as bribery. Recently such
actions are challenged as undue influence.

115
In Ramachandran v. K.P. Noordeen one of the
allegations was that the returned candidate, a minister,
caused to obtain sanction for developmental works in his
constituency with a view to influencing voters. Upholding a
candidate's right to nurse his constituency, the High Court
115. A.I.R. 1988 Ker. 141.

173
observed that anything done by a candidate before his
candidature for gaining popularity in the constituency with
an eye on the ultimate candidature would not come within the

purview of corrupt practice"^ ®. However, in Kunhumoharamed v.
117
T.M. Jacob though the High Court upheld the minister's
right to initiate development works, Justice Padmanabhan
posed some doubts regarding propriety of such actions on the
eve of election. It was observed:

/
It is true that purity of election is important
and on the eve of election public money should not
be spent even for developmental activities with
the object of influencing the voters. But such
practices are only evil practices and not corrupt
practices. They will become grounds for
challenging an election only when it becomes undue
influence. Doing something even by a Minister in
his Constituency with the object of enhancing his
election prospects by itself will not become a
corrupt practice. Simply because election is going
to come governmental activities or programmes or
developmental activities need not be placed at a

standstill^®.
116. Id. at 149.
117. (1988)1 K.L.T. 809.
118. Id. at 813.

174
It follows from the observation by the learned
Judge that expenditure of public money for the performance
of public work by a person holding public office is morally
reprehensible if it is intended to secure the votes.
However, since the proviso to Section 123 (2) expressly
permits such actions it cannot be treated as corrupt

119
practice
Booth Capturing
Though the influence of muscle power, as a factor
to be reckoned with, has always been a feature of the Indian
election process, the practice of booth capturing which
makes a mockery of the concept of free and fair elections,
is of rather recent origin.
Since early eighties, complaints regarding booth

120
capturing have been steadily increasing . Though the
119. A similar view was taken by the.Punjab High Court in

Basant Singh v. Ram Pratap Garg (1966) Punj. L.R.
(Supp.) 538, 550.
120. According to L.P. Singh "out of 512 Parliamentary

Constituencies in which there was poll in December
1984, there were disturbances or forcible interruptions
of proceedings at some polling stations, in as many as
53 Parliamentary Constituencies". See Electoral Reform
(New Delhi, 1988) p.35.
175
Election Commission had taken note of the issue and had
issued certain definite directions for preventing booth

121
capturing it had become a futile exercise . Hence it
became necessary to enact adequate provisions to prevent
this unfair practice. Hence in 1951 through an amendment to
the R.P. Act., booth capturing was made a corrupt practice
and an electoral offence.

According to Section 123 (8) booth capturing by a
/
candidate or his election agent or other person is a corrupt
practice. The explanation to the provision states that the
booth capturing shall have the same meaning as in Section

135-A. However, Section 135-A provides only an inclusive
definition. Among other things, all or any of the following
activities are treated as booth capturing:
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

Recently, when by-elections were held to two House
of people and 16 State Legislative Assembly seats
■Election Commission had ordered repoll in 75 booths
following the complaints of booth capturing. See Indian
Express May 22, 1993. According to one report, almost
1.5 million persons were to be mobilised for
maintenance of peace and to guard booths all over
India. See Ghani Jafar, Elections in India 1984-1985
(Institute of Regional Studies, Islamabad, 1987) p.136.
121. See Second Annual Report (Election Commission of India,

1985) p.77.
176
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 prevent others from voting;
c. threatening 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.
It seems that the definition covers almost all
activities which could be treated as booth capturing. Since

an inclusive definition is given the chances of escape from
the purview of law by taking benefit of loopholes in the
definitions are avoided.

177
Conclusion
The term 'undue influence' has its origin in the
law of contract. It is used to ensure that the consent of
contracting parties is free from interference of persons
having the power to^dominate the will of a party. The
election law has borrowed the concept to safeguard the
elector's right to make the free choice. The definitions
given to the term by the Contract Act, 1872 and the
Representation of the People Act, 1951 clearly reveal that
in election law the term is used in a broader sense.
However, one finds that the pervading influence of the law
of contract often blurs the distinction. The judges often
forget the difference and make no conscious effort to keep
the concepts clear. The above distinction is focussed in

123 . ,
S.K. Singh v. V.V. Girl by Justice Mitter. The majority
of cases belong to the area where the contractual concept
was emphasized. This is evident in decisions not treating
actions like canvassing of votes by dacoits, appeal by
religious leaders to vote for a candidate, using the flag of
another political party etc. as undue influence. It seems
that the existing law is insufficient to exclude the
criminals from the election process. Hence the enactment of
new provisions is necessary..
123. A.I.R. 1970 S.C. 2097, 2159.

178
Most of the cases involving the allegation of
undue influence are related to spiritual intimidation.
Though the courts are keen in treating the soliciting of
votes by way of stating that particular line of voting is a

124
sxn as corrupt practice, m Pandit K. Selot it was
erroneously held that the communication of the same idea in
an indirect way would not amount to undue influence. Some
judges even entertained a misconception that in order to

/
constitute undue influence by a religious leader, the leader
ought to have considerable influence among the electors.
Here the influence of the contractual concept is very clear.
The view taken by the court that canvassing of votes stating
that a political party is irreligious or that the. natural
calamities are the result of their irreligious act, did not
amount to undue influence is also another instance of such
undue influence of the contractual concept.
The courts are right in upholding the right of
political leaders, who occupy high offices like ministers,
to canvass votes. It is relevant to note that in the
statutory provision though the threat of expulsion from
religion is treated as undue influence, threat of expulsion

from political party is not treated so. Since the functions
124. (1969) 3 S.C.C. 548.

179
of religion and political party are different it is
essential to draw a distinction between them in this
respect. The right of a political party to give direction to
its members regarding the line of voting should be treated
as legitimate. However, the direction having negative
character should be treated as undue influence. The view of
the Supreme Court in this regard is not clear.
According to the proviso, declaration of public

/
policy, promise of public action or mere exercise of legal
right does not amount to corrupt practice. This protective
umbrella prevents the courts from treating certain illegal
practices like misusing public money in the guise of
allowing discretionary grants, initiating development works
and providing economic incentive, as corrupt practice. It is
necessary to formulate a code of conduct in this regard.

Though publication of false statements is another
corrupt practice, the interference with the electoral right
by way of false statement should constitute corrupt practice
of undue influence.
A new corrupt practice of booth capturing has been
inserted by an amendment to the R.P. Act in 1989. 'Booth

Capturing' has been defined in a comprehensive manner so
that it may not provide any escape routes for those guilty
of the corrupt practice. What is needed is a rigorous
implementation of the provisions.

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CHAPTER III

In a participatory democracy every man, however

low his position in the society may be, should be able to

participate in the political process. If an ordinary elector

is not in a position to make his free choice, the elections |

electors should be made aware of the political and social

issues involved in the election, the individual merits and !

demerits of the candidates, and the policies and programmes

of the political parties. The election campaign ought to be !

monitored by law in such a direction. The idea is to equip

the electors with the power to make free choice, analysing

the political situation and the calibre of candidates.

However, a candidate may attempt to exert an influence on j

case of socially and economically backward classes of

of pressures. In order to avoid this evil, the law seeks to

prohibit candidates from exercising undue influence.

In the law of contract consent of parties obtained

by undue influence is a ground for invalidating an

agreement. This happens where the parties stand to one

another in relation of confidence which puts one of them in

a position to exercise over the other an influence which may­

be perfectly natural and proper in itself, but is capable of

(i) where the other party has exercised undue influence, in

1. See Section 19-A of Contract Act, 1872. See A.G. Guest

2. See A.G. Guest, supra n.l at 262. Section 16 of the

the sense of domination, over the other; or (ii) where there

is an abuse of the duties of care and confidence which may

be imposed on one party towards another as a result of .the

partial relationship which emerges from the special

circumstance of their association.

However, in election law, the existence of none of

the above conditions is necessary to constitute undue

influence since the term is defined differently. The

provision reads thus:

Undue Influence, than is to say, any direct or

indirect interference or attempt to interfere on

the part of the candidate, or his agent, or any

other of person with the consent of the candidate

or his election agent, with the free exercise of

any electoral right:

a. Without prejudice to the generality of the

provisions of this clause any such person as is

referred to therein who-

i. threatens any candidate or any elector, or any

person in whom a candidate or an elector is

social ostracism and ex-communication or

ii.induces or attempts to induce a candidate or an

whom he is interetad, will become or will be

rendered an object of divine displeasure or

spiritual censure, shall be deemed to interfere

with the free exercise of the electoral right

of such candidate or elector within the meaning

b. 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 tha meaning of this clause 3 .

3. Section 123(2) of the R.P. Act, 1951. The corrupt

Thus an influence may amount to undue influence if

there is an interference’ or an attempt to interfere with the

free exercise of the electoral right of a person. Subclause

(a) deals with specific instances of undue influence, and

subclause (b) considers exceptional situations. In Lalsingh

a position to exercise over the other an influence which may