Report No. 255
(vii) Is paid news "undue influence"?
Undue influence as an electoral offence
Section 171C (a):
"Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election."
7.30.1. "Electoral right", as per section 171A of the IPC, "means the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at any election." Therefore, interference with the free exercise of electoral right would involve the right of the other candidates to stand and right of the voters to vote.
In Ram Dial v. Sant Lal, AIR 1959 SC 855 the Supreme Court held that to determine 'undue influence', actual effect produced is not material. Furthermore, in Baburao Patel v. Dr. Zakir Hussain, AIR 1968 SC 904 the court further laid down a list of activities that will be excluded from the purview of 'undue influence' including canvassing by ministers for their party candidates, issuing a party whip to vote for certain candidate in Rajya Sabha, Presidential or Vice Presidential elections.
7.30.2. In Shiv Kirpal Singh v. V.V. Giri, AIR 1970 SC 2097 the court held that undue influence can be present at any stage of elections. It can be present at the stage when a voter goes through a mental process deciding which candidate to vote for. Further, it also involves "mental process of weighing the merits and demerits of the candidates to make his choice"279. The act need not be authorized by any candidate. The undue influence can be practiced even by a third party completely unconnected with the candidate.
279. AIR 1970 SC 2097
7.30.3. Arguably, paid news might come within the meaning of section 171(c)(a). This is because, by masquerading as objective analysis or reporting, paid news might well provide a wrong impression to voters, who will be wrongly influenced by content that they mistakenly believe to be objective and neutral. However, because the provision is open-ended, and not confined to specific practices, its applicability to paid news is doubtful, and depends upon the interpretation courts might place upon it. In any event, it will not cover political advertisements marked as such, because any influence they might exercise, will not be "undue".
Undue influence as corrupt practice
7.30.4. Section 123 of the Representation of the People Act, 1951 states:
Section 123(2): "Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agents, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right."
7.30.5. The only difference between this provision and in section 171C of the IPC is that of consequence. While conviction under section 171C leads to punishment or fine, the consequence of section 123(2) is disqualification. Though undue influence may cover some instances of paid news and disguised political advertising, it is a determination contingent on proof adduced which might be difficult to obtain. Thus the provision does not provide a direct solution to prohibit and regulate paid news and disguised political advertising respectively.