Star Campaigner’s Visit During 48-Hour Silence Period Not By Itself "Undue Influence": Bombay High Court Affirms Shiv Sena MLA’s Election

The Court observed that to constitute undue influence within the meaning of Section 123(2) of the Representation of the People Act, 1951, the pleadings must disclose that the conduct complained of interfered with the free exercise of electoral rights by the electorate.

The Court was hearing an election petition filed by Md. Arif Lalan Khan, challenging the election of Dilip Bhausaheb Lande of the Shiv Sena, who was returned as Member of the Maharashtra Legislative Assembly from Constituency No.168 – Chandivali Assembly Constituency, Mumbai, along with an application filed by Lande seeking rejection of the election petition on the ground that it did not disclose a cause of action.

A Single Judge Bench of Justice Somasekhar Sundaresan observed: “The use of 'influence' to disrupt the ordinary course of expected conduct by the candidate or the electorate is what makes it 'undue influence’. There has to be an attempt to interfere with what would have happened in the ordinary course for undue influence to occur. Therefore, the appearance of the star campaigner, Shinde, in the Constituency by itself would not be enough. There ought to be something more to show that such a visit interfered with what would have been the ordinary flow of conduct by the electorate for the visit to have had undue influence on the electorate.”

The Court further held that although a campaign conducted during the prohibited forty-eight-hour period could constitute a violation of Section 126 of the Act, such a violation does not automatically amount to a corrupt practice capable of voiding an election.

Background

The election petition was filed by Md. Arif Lalan Khan, who had contested the Maharashtra Legislative Assembly election from the Chandivali Assembly Constituency and was the nearest rival candidate to Dilip Bhausaheb Lande. The polling for the constituency took place on 20 November 2024.

Khan filed the election petition under Section 100 of the Representation of the People Act, 1951, seeking the setting aside of Lande’s election. The petition also originally sought a declaration under Section 101 of the Act that Khan himself be declared elected as the candidate who secured the second-highest number of votes.

The election petition was opposed by Lande through an application seeking rejection of the petition under Order VII Rule 11 of the Code of Civil Procedure, on the ground that the petition did not disclose a cause of action and lacked the necessary pleading of material facts required under the election law.

The challenge to the election was based on three principal allegations. The first allegation concerned a visit by Eknath Shinde, who was then the Chief Minister of Maharashtra and a designated star campaigner of the Shiv Sena, the party on whose ticket Lande had contested the election. According to the petitioner, this conduct violated Section 126 of the Representation of the People Act, which prohibits campaigning during the forty-eight hour silence period preceding the close of polling, as well as provisions of the Model Code of Conduct framed by the Election Commission of India.

The second ground of challenge related to the Form-26 affidavit filed by Lande under the Conduct of Elections Rules, 1961, which requires candidates to disclose pending criminal cases and other relevant information. The petitioner alleged that Lande had mentioned eleven cases in the affidavit, although several of them were civil cases rather than criminal proceedings. According to the petitioner, this disclosure created a misleading impression regarding the nature of cases against the candidate and thereby misled voters.

The third ground of challenge concerned an alleged apprehension of tampering or manipulation of Electronic Voting Machines (EVMs) used in the election. The petitioner stated that he had applied for verification of twenty sets of EVM machines in accordance with guidelines issued by the Supreme Court and had paid ₹9,44,000 as verification charges. The petitioner contended that the election result would also be challenged on the basis of the verification report regarding these machines.

Court’s Observation

The Court examined the legal framework governing election petitions and the concept of corrupt practices under the Representation of the People Act, 1951. The Court noted that under Section 83 of the Act, an election petition must contain a concise statement of the material facts on which the petitioner relies, along with full particulars of any corrupt practice alleged.

The Court observed that the allegation regarding the visit of Eknath Shinde was sought to be brought within the scope of “undue influence” under Section 123(2) of the Act, which treats interference with the free exercise of electoral rights as a corrupt practice.

The Court examined the meaning of “influence” and “undue influence” in the context of election law. It is observed that influence, in ordinary terms, refers to the capacity to affect the behaviour or decision-making of another person. However, undue influence requires something more. The Court noted that undue influence involves acts that subvert the free will of voters, such as coercion, intimidation, threats, inducement or other conduct that prevents voters from exercising their electoral rights freely.

The Court referred to judicial precedents and dictionary meanings to explain that undue influence arises when a person’s will is overpowered and replaced by the will of another. The Court emphasised that legitimate political persuasion, campaigning or appeals to voters cannot be equated with undue influence unless they interfere with the autonomy of voters.

Applying this legal framework to the pleadings in the election petition, the Court observed that the petition merely alleged that Shinde visited the constituency during the prohibited period, conducted a road show, waved to the public, and canvassed for votes in favour of Lande. The Court noted that the petition repeatedly used the term “influence” but did not plead any facts indicating that the visit interfered with the free exercise of electoral choice.

The Court held that the pleadings did not allege any threat, coercion, inducement, misrepresentation, or other form of interference that would amount to undue influence under Section 123(2) of the Act. The Court observed that the alleged conduct could at best be described as political campaigning or mobilisation of supporters.

The Court therefore held that the allegations suggested only that the visit may have energised or rallied supporters of the party or the star campaigner himself. Such conduct could constitute political influence, but does not necessarily amount to undue influence.

The Court further clarified that the alleged campaign during the prohibited period could potentially constitute a violation of Section 126 of the Representation of the People Act, which prohibits public meetings, processions or propagation of election matter during the forty-eight hours preceding the close of polling. Section 126 provides its own statutory sanction, including criminal punishment for such violations.

However, the Court emphasised that a violation of Section 126 does not automatically translate into a corrupt practice under Section 123 of the Act. The statutory scheme distinguishes between electoral offences and corrupt practices capable of voiding an election. Therefore, even if the allegations regarding the violation of Section 126 were accepted, the petition would still have to demonstrate how the alleged violation materially affected the election result.

The Court further examined the requirements of Section 100 of the Representation of the People Act, which sets out the grounds for declaring an election void. The Court observed that under Section 100(1)(b), an election can be declared void if a corrupt practice has been committed by the returned candidate or his agent. Under Section 100(1)(d)(iv), an election may be declared void if the result has been materially affected by non-compliance with provisions of the Act or rules made under it.

The Court held that the pleadings in the election petition did not disclose material facts showing how the alleged visit of Shinde materially affected the election result in favour of Lande. The Court observed that the petition did not provide any factual basis to demonstrate how the alleged conduct influenced voting behaviour or altered the outcome of the election.

With respect to the allegation regarding the Form-26 affidavit, the Court observed that the law requires candidates to disclose certain minimum information. The Court noted that voluntary disclosure of additional information cannot by itself be treated as misleading or illegal. The Court also held that the petition did not disclose material facts showing how the alleged disclosures misled voters or materially affected the election result.

Regarding the allegation of EVM tampering, the Court observed that the pleadings were vague and speculative. The petition merely expressed an apprehension of tampering and sought verification of certain machines. The Court held that such vague allegations do not constitute the material facts required to sustain an election petition.

Conclusion

The Bombay High Court held that the election petition failed to disclose the material facts necessary to establish a cause of action under the Representation of the People Act. The Court held that the allegations regarding the visit of Eknath Shinde, the disclosures in Form-26, and the alleged tampering of EVM machines did not satisfy the legal requirements necessary to sustain a challenge to the election.

Allowing the application filed by Dilip Bhausaheb Lande, the Court held that the election petition instituted by Md. Arif Lalan Khan did not disclose the material facts required under the election law and consequently rejected the election petition.

Cause Title: Md. Arif Lalan Khan v. Dilip Bhausaheb Lande & Ors. (Neutral Citation 2026:BHC-OS:5855)

Appearances

Petitioner: Virendra Tulzapurkar, Senior Advocate with Advocates R. D. Soni and Sakshi Agarwal

Respondents: Advocates Shardul Singh, Ninad Thikekar, Naira Jejeebhoy, Arun Panickar, Tanmay Pawar, Vinay Nair and Ayush Yadav

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