Arun correctly points out that in Shiv Kripal Singh case, the Supreme Court found the allegations against Sanjeeva Reddy, the losing candidate, fictitious and completely baseless. But as Dilip has pointed out, and the reading of the entire judgment shows, we are unable to know how the SC arrived at this conclusion. May be the pamphlet being distributed then was not backed by documentation or evidence.
In Ms.Patil’s case, if one follows the media coverage closely, one can see that Abhishek Singhvi, the Congress spokesperson has disputed even the facts of the allegations against her, the amount of money involved in the transactions alleged against her brother, and whether the borrowers (Ms.Patil’s kin) have returned the loan amount to the bank, and when. May be the Congress wants to wait till the last date for the nomination is over, to properly answer the allegations against her. Why should we insist – as many of the commentators seem to be in a such a hurry as if all would be lost - that the Congress must answer all the charges even before the nominations close. There is a campaign period ahead, when all these allegations will again be raised and answered. There have been good presidents, and bad presidents. In certain cases, bad presidents have turned out to be good presidents because of circumstances. The so-called good presidents, to begin with, did not live upto the expectations.
In Ms.Patil’s case, there is a suspicion that she must have had a hand in the number of allegations against her kith and kin. Now, this suspicion has to be substantiated. Even the complainants in those cases have not alleged this. Being the highest office, the Presidency does not offer any immunity to the incumbents from cases which have to do with her actions in her personal capacity, before she assumed the office.
Take the pamphlets against Sanjeeva Reddy. The allegations might have been true or false. The SC probably found the pamphlets issued by anonymous persons as lacking evidentiary value. None had the courage to provide the evidence, probably. The SC did not explain why it found the pamphlet baseless and fictitious. Had the evidence subsequently come up, and if Sanjeeva Reddy had been elected as President in 1969, would he have enjoyed any immunity? No. Therefore, there is a flawed assumption in the case of Ms.Patil, that she would interfere with the cases faced by her kith and kin, and therefore, she should not stand for the Presidency.
If you read that judgment carefully, the SC did not want to go into the allegations in the pamphlet, to determine whether they had any basis, or even prima facie raised any suspicion of wrong doing. It simply said even the dissemination of such a pamphlet amounted to undue influence because it cast aspersions on the integrity of the candidate. It is not for the pamphlet-distributor to come up with hard evidence to convince the Court. The truth or falsehood of the pamphlet must have been already established, so that there can be no possibility of a debate on it. The crucial paragraph in that judgment is this:
“ It seems to us that these allegations are covered under Section 171-C. even if they may be covered under Section 171G. But we are not concerned with Section 171G because that section has not been made a ground for setting aside an election. We are only concerned with Section 171C. Be that as it may, we cannot add another subsection to Section 171C, as follows :A false statement of fact in relation to the personal character or conduct of any candidate even if made with the intention of interfering with the electoral right shall not be deemed to be interference within the meaning of this section.”
In other words, the SC had two sections before it: Sections 171C and 171G. Section 171C (1) says: Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. This sub-section is very general, and the subsequent sub-sections (2) and (3) (which are not relevant to this case) have been added without prejudice to sub-section (1).
Section 171G says whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine.
As the Supreme Court’s clarification shows, S.171 G is not a ground of attack in that case. Under S.171C also, the court was in no mood to exempt false statements of fact from the purview of “voluntary interference with the free exercise of right”.
In Ms.Patil’s case, it is premature to say whether S.171 G would be relevant. But S.171C? What are the exemptions under S.171C?
S.171C (2) (a) and (b) is not attracted in Ms.Patil’s case. Nor was it attracted in Shiv Kripal Singh case. These refer to some specific illustrations of interference (Readers are requested to refer to IPC), which are not exhaustive of the offences to be covered by S.171C (1).
S.171C (3) says a declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section. This sub-section also will not apply to either cases.
In other words, S.171C does not provide for any exceptions apart from this. The crucial question, therefore, to be asked in both the cases, is: whether the allegations amount to “voluntary interference with the free exercise of right” as meant by S.171C (1). The basis of the allegations, whether it is true or not, is not exactly relevant at this stage. It was not relevant to the court in Shiv Kripal Singh case. The mere dissemination of the pamphlet amounted to “voluntary interference with the free exercise of right” to the Court. Therefore, the argument that the allegations may be true, and that there is no effective challenge to the facts established by the allegations cannot come to the aid of Ms.Patil’s critics. The Court in that case was not bothered about the anonymity of the authors of the pamphlet. Had it been concerned about the truth or otherwise of its contents, it could have ordered an inquiry into it to arrive at the truth. It was not concerned even to explain, as it felt the pamphlet so distributed, in its view, appeared to be fictitious and baseless. But it is not this view which determined the outcome of this case.
I agree that the discussion is largely academic, as Ms.Patil would most probably win the contest, and the occasion for the Court to determine whether the allegations materially affected the result (in terms of S.18 of the Presidential and Vice-Presidential Elections Act) of the election may not arise at all. Be that as it may, as the discussion raised the issue whether allegations against Ms.Patil, would come under S.171C (1), which is independent of the Presidential and Vice-President Elections Act, I thought the SC’s ruling in Shiv Kripal Singh would be highly relevant.
To conclude, I repeat what the Supreme Court said in that case with regard to the scope of S.171C(1):
"The legislature has wisely refrained from defining the forms interference may take. The ingenuity of the human mind is unlimited and perforce the nature of interference must also be unlimited.”
Secondly, the SC judgment in the Association of Democratic Rights case, which directed the E.C. to seek and publicise information about the background of the candidates in terms of the right to information of the voters does not include information about allegations and insinuations being faced by the candidate.
S.18 of the Presidential and Vice-Presidential Election Act, 1952 was amended in 1974. The amendment, apart from other things, carried out two major changes in the Act, which are relevant to the present discussion. One is the word connivance was changed as consent in S.18(1) (a). The second important change, which I missed, but which formed the basis of the Shiv Kripal Singh judgment is this: it omitted S.18(1) (b) as it stood in the unamended Act. This sub-section in the unamended Act said as follows:
(b) that the result of the election has been materially affected (i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance....the Supreme Court shall declare the election of the returned candidate to be void.The effect of this amendment would be that the pamphlet against Sanjeeva Reddy, which was the issue in the Shiv Kripal Singh case, is unlikely to be an issue in a similar case. At the most, those who make similar allegations against Presidential candidates in the recent election could be prosecuted under S.171C or S.171G under IPC, and can get away with a punishment of fine, if found guilty. The successful candidate cannot be unseated even if the campaign of undue influence – carried out without the consent of the candidates or his representative - materially affected the results. The discussion in the posts and the comments section, therefore, must be understood in the background of this important change, which I missed earlier.
I stand corrected insofar as the 1974 amendment almost eclipsed the similarity between the Shiv Kripal Singh case and the present campaign, by deleting S.18(1)(b) of the unamended Act. But the similarity with regard to S.171C(1) remains, even though the prospect of the Court declaring the election as void on this ground, if others without the candidates' consent, are found guilty of this offence, is no longer there. The Supreme Court is mercifully spared of the effort to determine whether the result is materially affected by the undue influence of those who did not have the consent of the candidates. Was this amendment a result of the legislative wisdom that the Shiv Kripal Singh judgment's reasoning, as Arun argues in the Comments section, is inadequate? But if the plea of implied consent is taken, then perhaps the original objective of the 1952 Act in keeping the Presidential and Vice-Presidential election campaign free from undue influence of any kind, may be given effect to.