[318] Though the wording of the Indian Penal Code quoted above is
materially different from Section 10 of the Election Offences Act, the
meaning injected into the above legal provisions, shows its applicability in
the Kenyan context. The Supreme Court of India in the consolidated cases
of Charan Lal Sahu & Others v. Giani Zail Singh and Another;
Nem Chandra Jain v. Giani Zail Singh; Charan Singh and
Others v. Giani Zall Singh117 thus explicitly stated that the test was
whether there was an interference or an attempted interference with the
free exercise of any electoral right. Similarly, Section 10 above, whose
marginal note is ‘undue influence’ forbids any impediment of a person’s
exercise of the electoral right. In India, the electoral right of an elector, is
defined under Section 171A(b) of the Indian Penal Code, as "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 an election." This is comparable to
Article 38(3) of our Constitution which confers certain political rights on
every citizen without any restrictions including the right to vote by secret
ballot in an election.
[319] The above case of India laid down a distinction between mere
canvassing for votes and acts of undue influence. In doing so, the Supreme
Court pronounced itself as follows in the above case:
“If the mere act of canvassing in favour of one
candidate as against another were to amount to undue
influence, the very process of a democratic election
shall have been stifled because, the right to canvass
support for a candidate is as much important as the
right to vote for a candidate of one's choice. Therefore,
Charan Lal Sahu & Others v Giani Zail Singh and Another; Nem Chandra Jain v Giani Zail Singh;
Charan Singh and Others v Giani Zall Singh 1984 AIR 309; 1984 SCR (2) 6.
117
Presidential
Petition
No.
1
of
2017
137
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