Campaigning During 48-Hour Silent Period Is Not 'Undue Influence' Under Section 123(2), Election Petition Must Plead How Result Was Materially Affected: Bombay High Court

"The Pleadings Stop Short Of Indicating How Such Influence Was Undue — There Is Not Even A Whisper Of Threat, Coercion, Inducement Or Fraud", In a significant ruling on the pleading standards required in election petitions, the Bombay High Court has dismissed a challenge to the election victory of Dilip Bhausaheb Lande from the Chandivali Assembly Constituency, holding that a road show conducted by a star campaigner during the prohibited 48-hour silent period does not automatically constitute "undue influence" under Section 123(2) of the Representation of the People Act, 1951, and that a bald averment that "but for the visit the petitioner would have won" is wholly insufficient to disclose a cause of action under Section 100(1)(d)(iv).

Justice Somasekhar Sundaresan allowed the rejection application filed by the returned candidate under Order VII, Rule 11 of the CPC and dismissed the election petition filed by losing candidate Md. Arif Lalan Khan, who had lost the November 2024 Maharashtra Legislative Assembly election by a margin of 20,625 votes.

Lande polled 1,24,641 votes against Khan's 1,04,016 votes in the Chandivali Constituency (No. 168) in elections held on 20 November 2024. Khan challenged the result on three grounds: first, that then Chief Minister Eknath Shinde, a star campaigner of Shiv Sena, conducted a road show near five polling stations at 3:08 PM on polling day in violation of the 48-hour silent period under Section 126; second, that Lande's Form 26 Affidavit was misleading as it disclosed civil cases alongside criminal cases and omitted a residential property as an asset; and third, that EVMs may have been tampered with, in respect of which Khan had paid fees for verification of 20 EVM sets. Lande filed an application for rejection under Order VII, Rule 11 CPC contending that the petition failed to plead material facts as mandated by Section 83 of the Act.

Legal Issues

Whether a violation of Section 126 by a star campaigner during the prohibited period constitutes "undue influence" under Section 123(2) so as to attract Section 100(1)(b). Whether an election petition invoking Section 100(1)(d)(iv) must plead material facts showing how the impugned conduct materially affected the electoral result. Whether defects in the Form 26 Affidavit and an apprehension of EVM tampering, as pleaded, disclose a cause of action under Section 100.

"Energising Loyalists Who Would Be Enthused By The Star Campaigner's Presence Indicates Deployment Of Influence — Not Undue Influence"

Justice Sundaresan undertook a meticulous examination of the petition's pleadings against the statutory framework and the Supreme Court's settled position on material facts in election petitions, and found the petition deficient on every ground.

On the core question of whether Shinde's road show during the silent period constituted "undue influence" under Section 123(2), the Court drew a sharp and decisive distinction between "influence" and "undue influence." Examining the plain meaning of the terms and the legal dictionary definition from Black's Law Dictionary — which defines undue influence as conduct that "deprives a person of free agency or destroys freedom of his will" — the Court held that for undue influence to occur, "there has to be a subversion of the integrity of exercise of electoral right." The examples in the proviso to Section 123(2) — threats of bodily harm, social ostracism, or inducement of divine displeasure — represent the archetype of undue influence. Outside those examples, there could be other forms such as gratification based on greed, but in every case there must be something that interferes with what would have happened in the ordinary course of the exercise of electoral will.

"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."

Applying this framework to the petition's pleadings, the Court was unsparing. It noted that the pleadings indicated Shinde visited during prohibited campaign hours, practically ran a campaign, canvassed and appealed for votes in close proximity to five polling stations, waved hands, gave blessings to Lande, and photographs and videos went viral on social media. Yet, the Court found the petition fatally wanting: "Paragraph 6.2 of the Petition uses the phrase 'influence' twice but stops short of indicating how such influence was undue influence. It does not even have a whisper of whether during such visit, any threat, coercion, inducement, fraud or any misrepresentation was made."

"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 further held that a careful reading of the pleadings disclosed that the visit allegedly rallied those who would be enthused by Shinde's presence — which constitutes a campaign to influence votes, but nothing more. The Court stated: "Energising loyalists who would be enthused by the star campaigner's presence would indicate the deployment of influence and not the deployment of undue influence. That would not necessarily point to such a campaign constituting one of 'undue influence'."

"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 — and canvassing by a star campaigner, without more, falls on the same side of that line."

On the question of Section 126, the Court clearly delineated the boundary between an electoral offence and a ground for voiding an election. It held that a campaign during the 48-hour silent period squarely violates Section 126 and attracts its own criminal sanction of imprisonment up to two years, fine, or both. However, a violation of Section 126 "would not automatically constitute 'undue influence' for purposes of Section 123 of the Act." The machinery of Section 126 is not the machinery of an election petition under Section 100. The Court expressly clarified that nothing in its judgment was intended to pronounce upon the merits of any criminal proceedings for the alleged violation of Section 126.

"The standard of Section 126 of the Act being violated would not automatically lead to such a campaign being a 'corrupt practice' for purposes of Section 123."

Turning to Section 100(1)(d)(iv) — which requires the petitioner to show that non-compliance with the Act or its rules materially affected the electoral result in favour of the returned candidate — the Court found the petition equally deficient. Relying extensively on the Supreme Court's decision in Mangani Lal Mandal v. Chandra Mohan Jha [(2010) 12 SCC 576], the Court reiterated that "a mere non-compliance or breach of the statutory provisions, by itself, does not result in invalidating the election" and that "the sine qua non for declaring the election void on this ground is further proof that such breach has resulted in materially affecting the result." The only relevant pleading in the petition was in Paragraph 18 — a bare statement that "but for the aforesaid practices, the Petitioner would have obtained a majority of valid votes." The Court found this categorically inadequate.

"The pleadings are nothing more than a simple and bald averment that but for the visit, Khan would have won. There has to be something more to at least show some rational basis of indicating materiality of the impact of the visit for Lande to be able to meet the allegation and defend the electoral outcome."

The Court also noted the telling fact that Khan had previously challenged the election of the very same returned candidate on an identical ground — a star campaigner's visit to the constituency on polling day — and that petition too had been rejected under Order VII, Rule 11 on the same basis, a circumstance that added significant weight to the rejection of the present petition.

On the Form 26 Affidavit, the Court held that there is no legal prohibition on a candidate voluntarily disclosing more than the statutory minimum. If Lande chose to disclose civil cases in addition to criminal cases, such excessive disclosure cannot by itself constitute undue influence or a corrupt practice. Relying on Karim Uddin Barbhuiya v. Aminul Haque Laskar [(2024) SCC OnLine SC], the Court observed that the petition must contain a concise statement of material facts showing how the alleged defect in the Form 26 Affidavit amounted to undue influence or materially affected the electoral result — and on both counts, the petition was entirely silent. As regards the undisclosed residential premises, the Court noted there was "not even an averment that title to those premises is in the name of Lande."

"How the errors in the Form 26 Affidavit constitute a corrupt practice or materially affected the electoral outcome is not pleaded. The pleadings in the Petition collide against multiple emphatic declarations of the law declared by the Supreme Court."

On EVM tampering, the Court held that while Khan was fully entitled to seek a verification check of 20 EVM sets under the Supreme Court's guidelines in Association for Democratic Reforms, "the right to seek a verification check and the existence of a cause of action under Section 100 to declare the election void are entirely different things." There was no pleading linking the EVMs identified to Shinde's visit or to any other cause reasonably giving rise to an apprehension of tampering. The Court allowed the EVM random check to proceed unhindered by its judgment.

"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 Court crystallised the governing standard from Kanimozhi Karunanidhi v. A. Santha Kumar [(2023) SCC OnLine SC] and Virender Nath Gautam v. Satpal Singh [(2007) 3 SCC 617]: the distinction between facta probanda — the primary facts to be pleaded — and facta probantia — the evidence by which they are proved at trial — must be rigorously maintained. The petition must contain every fact which it would be necessary for the petitioner to prove if traversed, in order to support the right to judgment. "Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad."

"An election petition without the material facts is not an election petition at all — and all the facts which are essential to clothe the petition with a complete cause of action must be pleaded."

Allowing the rejection application, Justice Sundaresan dismissed Election Petition No. 9 of 2025 in its entirety. The Court held that none of the three grounds — Shinde's road show during the silent period, defects in the Form 26 Affidavit, and apprehended EVM tampering — disclosed a complete cause of action as mandated by Section 83 read with Section 100 of the Representation of the People Act, 1951. The Court clarified that its judgment does not pronounce upon the merits of any criminal proceedings for violation of Section 126, and that the already-permitted EVM random check shall proceed unhindered.

Date of Decision: 07 March 2026