Eknath Shinde's polling day roadshow not "undue influence" on voters: Bombay High Court rejects election petition

The Bombay High Court on Saturday dismissed a petition filed by Congress leader Md Arif (Naseem) Khan challenging the election of Shiv Sena (Shinde faction) MLA Dilip Lande from Chandivali assembly in the 2024 assembly elections [Md. Arif Lalan Khan alias Naseem Khan v. Dilip Bhausaheb Lande & Ors.]..The petition assailed the election on the ground that current Deputy Chief Minister Eknath Shinde’s polling‑day road show amounted to “undue influence” on voters since no campaign is permitted under the law for 48 hours prior to polls. Justice Somasekhar Sundaresan held that the election petition did not set out the material facts required in law under Section 83 of the Representation of the People Act, 1951 including pleading to show how Shinde’s road show amounted to “undue influence”. .Thus, the Court allowed Lande’s application under Order VII Rule 11 of the Code of Civil Procedure and rejected Khan’s election petition. "Electoral outcomes in a democracy ought not to be lightly interfered with, without being subjected to the rigours of how Section 83 of the Act operates," the Court said. Section 83 requires an election petition to contain a concise statement of the material facts and to set forth full particulars of any corrupt practice, which the Court treated as a mandatory threshold..Khan, who lost by 20,625 votes, had alleged three grounds: - an unlawful road show by then Chief Minister Eknath Shinde in Chandivali on polling day, within the 48‑hour silent period; - an affidavit by Lande containing excessive information; and - apprehended tampering of EVMs. .While the Court accepted that the pleadings, taken at their highest, could disclose a violation of Section 126 of the Representation of the People Act, 1951, it held that this did not automatically translate into a corrupt practice of undue influence under Section 123(2).“When seen through this lens, I am afraid the petition does not indicate how the visit of Shinde interfered with the exercise of electoral will to constitute undue influence,” Justice Sundaresan said. .He elaborated that for Shinde’s visit to constitute undue influence during the prohibited campaign hour, the pleadings ought to show how the visit disrupted what would have been the ordinary exercise of electoral will. “In the absence of any pleading about how the conduct of Shinde interfered with the free exercise of electoral rights, the Petition evidently only indicates ‘influence’ and does not indicate ‘undue influence’,” the Court said..As regards the excessive information in the affidavit, the Court found there was nothing to indicate how the errors in the Form 26 Affidavit constituted a corrupt practice or materially affected the electoral outcome. It noted that there is admittedly no prohibition on volunteering more information than the statutory standard minimum..On EVMs, the Court noted that Khan had paid ₹9.44 lakh to seek verification of 20 EVM sets, but the pleadings said nothing more than that Khan had an apprehension of tampering. “Simply pointing to the EVMs listed in the application seeking a check would not constitute pleading of material particulars of how this facet leads to Section 100 being invoked,” the judge held..While dismissing the election petition, the Court clarified that the judgment is not an expression of an opinion on the merits of the allegation that Section 126 had been violated. “The due process for the pursuit of such alleged electoral offence may be resorted to uninfluenced by anything stated in this judgment,” the Court said. .Senior advocate Virendra Tulzapurkar with advocates RD Soni, Sakshi Agarwal briefed by Bipin Joshi appeared for Khan. Advocates Shardul Singh with Ninad Thikekar briefed by SHS Chambers appeared for Lande. [Read order].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.