Report No. 42
9A.9. Publishing false statements and undue influence.-
In the more recent case of Shiv Kirpal Singh v. V.V. Giri, AIR 1970 SC 2097 (2113)., one of the questions related to the distribution of an anonymous pamphlet which alleged gross immorality to a candidate at the presidential election. The distribution of the pamphlet clearly came within the mischief of section 171G of the Code, but the controversy before the Supreme Court was whether it also came within the mischief of section 171C and amounted to undue influence. The Court, by a majority, held.-
"From a reading of section 171G it is clear that in pursuit of purity of elections the legislature frowned upon attempts to assail such purity by means of false statements relating to the personal character and conduct of a candidate and made such acts punishable thereunder. But the fact that making of such a false statement is a distinct offence under section 171G does not and cannot mean that it cannot take the graver form of undue influence punishable under section 171F. The false statement may be of such virulent, vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their being affected or attempted to be affected by the maker or the publisher of such a statement.
Therefore, it is the degree of gravity of the allegation which will be the determining factor in deciding whether it falls under section 171C or section 171G. If the allegation, though false and relating to a candidate's personal character or conduct, made with the intent to affect the result of an election, does not amount to interference or attempt at such interference, the offence would be the lesser one. If, on the other hand, it amounts to interference or an attempt to interfere, it would be the graver offence under section 171F read with section 171C."
We think, with respect, that the line of demarcation indicated in the last two sentences is very thin and does not appear necessarily or logically to follow from the wording of either section 171C or of section 171G. Whether the false statement is grossly vulgar and scurrilous or only moderately so cannot, it seems to us, make any difference to the question whether the person publishing the false statement has or has not attempted to interfere with the free exercise of the right to vote at the election. Bhargava J. took the view that mere false propaganda as to the personal character of a candidate cannot amount to the corrupt practice of undue influence; that false statements about the personal character or conduct of a .candidate may, of course, be scurrilous and foul but even then the offence committed wouldfall under section 171G.
9A.10. Definition of "undue influence" in the British R.P. Act.-
On comparing the definitions of undue influence in the Penal Code with the definition's in the British, Canadian and Australian election laws, we find that our definition is unduly wide and vague, giving rise to the difficulties of interpretation referred to above. Under the British Representation of the People Act, 1949,
"A person shall be guilty of undue influenc.-
(a) 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
(b) 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.1"
The definitions in the Australian and Canadian election laws are on the same lines.
1. Section 101(2).
9A.11. Narrower definition recommended.-
We consider that, in the Indian Penal Code also, the offence of undue influence should be more strictly defined. Besides the two types of undue influence mentioned in sub-section (2) of section 171C, the definition should expressly mention, making use of, or threatening to make use of, any force, violence or wrongful restraint on any person as the really important type to be covered. Any such violent method of interfering with the free exercise of an electoral right should be made punishable more severely than the other two objectionable methods. There does not seem to be any need to cast the penal provision or, for the matter of that, the definition of this corrupt practice.- more widely so as to cover every interference and leave it to the courts to find out whether the interference in the particular circumstances of a case was due or undue, proper or improper.
9A.12. Undue influence at elections.-
We accordingly propose that section 171C be revised as follows.-
"171C. Undue influence at elections.- (1) Whoever, with intent to interfere with the free exercise of any electoral right at an election.-
(a) makes use of, or threatens to make use of, any force, violence or wrongful restraint on any person, or
(b) inflicts, or threatens to inflict, on any person, injury of any kind (including social ostracism and expulsion or ex-communication from any caste or community), or
(c) induces, or attempts to induce, any person to believe that he will become object of divine displeasure or of spiritual censure, commits the offence of undue influence at an election:
Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.
(2) Whoever commits the offence of undue influence at an election shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both; and if the offence is committed in the manner specified in clause (a) of sub-section (1), the imprisonment may extend to three years."
9A.13. Section 171D and section 171.-combined and amended.-
Section 171D defines the offence of personation at an election; and under section 171F, the punishment for the offence is imprisonment up to one year, or fine, or both. No change of substance is needed in section 171D. But the maximum punishment for the offence should be increased to two years' imprisonment, and, instead of having in a separate section, the punishment provision should be put in section 171D itself as sub-section (2).
Accordingly, we propose that section 171F be omitted, and the following sub-section be added to sub-section 171D:
"(2) Whoever commits the offence of personation at an election shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
9A.14. Section 171G revised.-
Section 171G punishes the making or publishing of false statements in relation to the personal character or conduct of any candidate with intent to affect the result of the election. The offence is, however, punishable with fine only which, as already pointed out, is to take a very lenient view of the offence. "Character assassination" at an election seems to us to be as reprehensible as exercising undue influence on electors or bribing them, and should be punished just as severely.
We notice that under section 123(4) of the Representation of the People Act, 1951, it is a corrupt practice to make or publish a false statement in relation to the candidature or withdrawal of candidature of any candidate. Such false statements are likely to cause irreparable damage to the candidate concerned and to falsify the election as a whole. We think they should also be brought within the purview of section 171G.
This section may accordingly be revised as follows.-
"171G. False statement in connection with an election.- 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 or in relation to the candidature or withdrawal of candidature of any candidate, shall be punished with imprisonment of either description which may extend to two years, or with fine, or with both."
9A.15. Sections 17111 and 171-I omitted.-
Section 171H penalises any person who, without the written authority of the candidate, incurs any expense for the purpose of promoting or procuring the election of that candidate. The punishment provided under the section is fine not exceeding five hundred rupees. While this provision has some meaning in relation to an election for which the relevant election law provides a limit on the permissible expense of candidates, it is anomalous in relation to the much larger number of elections for which there is no such limit.
Even in regard to the parliamentary and assembly elections this section is a dead letter. We propose that it can safely be omitted from the Penal Code. It should be left to the law governing a particular election to create this offence if considered necessary or desirable. For similar reasons we consider that any penal provision on the lines of section 171-I should be made in the law which requires candidates to keep accounts of election expenses, and it need not find a place in the Penal Code.