Undue Influence – Section 170 (a) (i-vii) of Election Act 2017

Undue Influence – Section 170 (a) (i-vii) of Election Act 2017

This article is not the complete interpretation of S.170 of the Election Act 2017. It is specifically about clause (a) of the Act which has an ‘either-or’ condition, hence, any of the requirements fulfilled under clause (a) could constitute undue influence.


In legal terminology, undue influence is the improper use of power or trust in a way that deprives a person of exercising free will and substitutes it with another person’s objective. In other words, it is the exercise of sufficient control over another person such that a certain act by this person would not have otherwise been performed (i.e. the person’s free agency having been overmastered).[1] Undue influence has its origin in an era when armed mobs and the like were not unknown during elections.[2]

The crux of S.170 is that it tends to act as a barrier against all non-legitimate canvassing and unlawful means of persuading voters to vote or not to vote for a particular candidate. Proper and peaceful means of campaigning and persuading voters is a key to the democratic process.[3]


Under S.170, any act or attempted act to threaten or interfere with the electoral rights of the voter, candidate or candidate’s agent is undue influence. Similarly divine displeasure being used as an excuse, or any person being excommunicated or expelled from any caste or community or facing social ostracism[4] for voting for a specific candidate will be in the grasp of undue influence defined under S.170 of the Election Act 2017.

However, in order to prove “undue influence” the court has to determine the actual nature of the threat or inducement and the degree of its influence upon the choice of the voter[5], hence considering full particulars of the corrupt and illegal practice.[6]

S.170 (a) (i) – Makes or threatens to make use of any force, violence or restraint

There are three distinctive terms in the provision:

  1. Force
  2. Violence
  3. Restraint

Any one of these three terms, if proved, could qualify as undue influence. However, force and violence usually overlap so they will be construed together (1 and 2). In legal terms, force is power, violence or pressure directed against a person or thing[7], whereas violence is the use of physical force, accompanied by fury, vehemence or outrage and could include veiled threats by words and acts.[8]

In Nawab Ali Wassan v Syed Ghous Ali Shah and others[9], it was alleged that DSP Munir Ahmed Phulpoto acted ultra vires and, through use of force and intimidation, harassed his voters into voting for the appellant. However, as undue influence is a criminal offence[10], it has to be proven beyond any shadow of doubt, which the respondents failed to do so, hence, failed to prove undue influence.

Furthermore, it was alleged  in Sayed Hamid Shah v Adnan Khan and 12 others[11] that the respondent had resorted to pre-poll rigging and used coercive means to extract votes. However, as factual controversy was involved in this case and an alternative, adequate and efficacious remedy was available to the petitioner for the redressal of his grievances, he could not question the vires of the election or the dispute before the Election Tribunal in respect of the election of respondent, in the extraordinary constitutional jurisdiction of this court, as was also held in the case of Election Commission of Pakistan through its Secretary v Javed Hashmi.[12]

(3) Restraint (i.e. holding back) is the confinement, abridgement, limitation or prohibition of an action.[13] So restraint under the terminology of S.170 means restricting the voters, candidate, candidate’s agent or any persons on the candidate’s behalf practicing their electoral rights.

S.170 (a) (ii) – Inflicts or threatens to inflict any injury, damage, harm or loss

Inflicting or threatening to inflict an injury, a wrong or an act of injustice, is the violation of another’s legal right for which the law provides a remedy[14]. Threat of causing injury is a common form of undue influence. The nature and the degree of threat may differ from case to case. The tribunals and courts have to determine an allegation of threat on the basis of the intention of the person exercising it, the degree of its seriousness and consequently its likely effect upon the free choice of an elector.[15] Furthermore, mere tendering of advice to a candidate by an important party leader will not constitute undue influence.[16]

“Damage” is defined as physical harm that is done to something or to a part of someone’s body[17], as observed in Nawab Ali Wassan v Syed Ghous Ali Shah, where the appellant had allegedly prevented the voters from casting their votes by resorting to aerial firing across the constituency.

“Harm” is defined as an injury, loss, damage, or material or tangible detriment[18]. Under S.170 of the Act[19] , harm also includes social ostracism or excommunication or expulsion from any caste or community.

In the case of Ghulam Mustafa v Akhtar Ali and Others[20], harassment by armed people could qualify as harm, however, due to the standard of proof of the offence and the lack of evidence, the claim of undue influence failed. The case noted that,

The syntax of the offence of undue influence under S.170(a)(ii) lays on the individual aspect of the exercise of undue influence as how a particular individual by inflicting injury, harm, damage or loss to any person, restraining him to vote.”

S.170 (a) (iii) – Calls down or threatens to call down divine displeasure or the displeasure or disapprobation of any saint or pir

Propagating “divine displeasure” is a criminal offence and is defined by S.508 of Pakistan Penal Code 1860 which states the following:

“Whoever voluntarily causes or attempts to cause any person to do anything which that person is not legally bound to do, or omit to do anything which he is legally entitled to do, by inducing or attempting to induce that person to believe that he or any person in whom he is interested will become or will be rendered by some act of the offender an object of Divine displeasure if he does not do the thing…. or if he does the thing which it is the object of the offender to cause him to omit…”

In layman terms, divine displeasure is technically a “spiritual” injury and S.170 (a) (iii) is an attempt to restrain the abuse of authority by heads/members of religious communities. A number of common law jurisdictions have tried to oust spiritual injury that is propagated either by claiming divine displeasure or the displeasure or disapprobation of any saint or pir.

In the United Kingdom, undue influence by threat of spiritual injury voided an election in the Meath Southern Division Case, Dalton v Fulham[21], where O’Brien J said the following:

“…The real principle is not that of intimidation in the proper sense, because intimidation in the spiritual relation assumes to be for the benefit of persons intimidated; but it is that of undue influence, which by common law us allowed to void all private acts and [is] applied to the public act of the exercise of the franchise.

Furthermore, it has been reported in the The Galway Case[22] that if religious authorities exert undue influence by “making use of their power to excite superstitious fears or pious hopes, to inspire… despair or confidence…”, it amounts to an abuse of that authority and power.

However, there is no recent case-law in the jurisdiction of Pakistan on the same issue. Nevertheless, there are reports of where political parties have used religion in order to influence voters, as Moeed Yusuf of USIP[23] said,

[Religious parties] have certainly increased their street power, their fear factor to the point where the state basically recedes every time they do something.”[24]

Pakistan Tehreek-e-Insaf’s (PTI’s) Insaf Lawyers Wing has urged the Election Commission of Pakistan to remove ‘book’ as a symbol for the upcoming general polls to prevent any exploitation by political parties. Khurram Zeeshan and Mudassir Jan Advocate have stressed that “book” is a symbol with many connotations including being related to the Holy Quran. They claim that the symbol is exploited by political parties and used as a “religious matter to influence minds of gullible public” and they have requested the Election Commission of Pakistan to remove ‘book’ from the list of symbols altogether.[25]

S.170 (a) (iv) – Gives or threatens to give any religious sentence

To understand what a religious sentence is, we first need to know the legal definition of ‘religion’ and ‘sentence’ and then understand it in a conjunctive manner according to S.170 of the Election Act 2017.

A religion is a system of faith and worship involving belief in a supreme being and containing a moral or ethical code[26], whereas a sentence is: (1) a judgement that a court formally pronounces after finding a criminal or defendant guilty; or (2) the punishment imposed on a criminal or wrongdoer.[27]

However, according to the context of S.170 of the Election Act 2017, religious sentences include fatwas, verdicts or proclamations. A fatwa is defined as a legal ruling or opinion given by a recognized authority on Islamic law deciding a punishment that they believe one deserves.[28] Nevertheless, a fatwa cannot be relied upon unless its author/signatory has been produced in court and subjected to cross-examination, and the entire circumstances have been brought to the signatory’s knowledge.[29]

Examples of a fatwa constituting undue influence include the declaring of kufr and a social boycott for voting for a particular person. An excellent example is also available in the Indian jurisdiction in the case of Jyostna Chandra V Mehrab Ali[30] where people were told not to vote for a woman for the reasons that the Quran prohibited the election of a woman to a public body. The claim of undue influence, however, failed due to lack of evidence.

S.170 (a) (v) – Uses or threatens to use any official influence or governmental patronage

Governmental patronage, also known as “political patronage” is the use of state resources to reward individuals for their electoral support.[31] In the case Mansoor Sarwar Khan v Election Commission of Pakistan[32], governmental influence was considered a corrupt practice. However, due to the wrath of Article 260[33] of the Constitution, public office holders (important party leaders in this case) were allowed to visit their constituencies and able to influence voters.

S.170 (a) (vi) – Maligns the Armed Forces of Pakistan

To malign is to defame. Slander or libel against the armed forces of Pakistan[34] is a violation of Article 5[35] of the Constitution.[36] In the context of S.170, it covers those who speak against the army to gain favour with the people, especially those people who may have grievance with the armed forces of Pakistan.

S.170 (a) (vii) – Prevents any woman from contesting an election or exercising her right to vote

The locus classicus of this is the case of Sayed Hamid Shah v Adnan Khan and 12 others[37], where it was alleged that an election result had been procured by the use of force and by stopping female voters to cast their votes. However, due to a factual controversy, the petition was dismissed and the claim of undue influence failed. Voting is a fundamental right and our Constitution ensures full participation of women in all spheres of national life.[38] Preventing a woman to contest or asking people not to vote for a particular woman also comes within the grip of undue influence.[39]



[1] Black’s Law Dictionary 18c (10th ed 2014)

[2]  McClintock v Whitworth (1869)

[3] Election Act 2017

[4] Ostracism refers to the act of ignoring and excluding individuals. It is differentiated from social exclusion in that ostracism generally requires ignoring or lack of attention in addition to social exclusion.

[5] Shodhganga

[6] Walid Iqbal v Sh Rohale Asghar and 17 others 2015 C L C 194

[7] Black’s Law Dictionary 14c (10th ed 2014)

[8] Black’s Law Dictionary 14c (10th ed 2014)

[9] 2018 SCMR 87

[10] Pakistan Penal Code 171-C

[11] 2009 C L C 65

[12] PLD 1989 SC 396

[13] Black’s Law Dictionary 15c (10th ed 2014)

[14] Black’s Law Dictionary 14c (10th ed 2014)

[15]Juihar Singh V Bhairon Lai & Others 7 E.L.R. 457

[16] Amir Chand V Smt. Sucheta Kripalani 19 E.L.R. 286

[17] Black’s Law Dictionary 14c (10th ed 2014)

[18] Black’s Law Dictionary bef.12c (10th ed 2014)

[19] Election Act 2017

[20] 1986 M L D 2143

[21] 1892 4 O’M & H 130

[22] (1869) 1 O’M&H 303 at 305 to 307

[23] United States Institute of Peace

[24] Islam and Politics in Pakistan by Jayshree Bajoria

[25] Petition moved to bar MMA from using “Book” as election symbol-The Express Tribune by Our Correspondent, Published May 20, 2018

[26] Black’s Law Dictionary 13c (10th ed 2014)

[27] Black’s Law Dictionary 14c (10th ed 2014)

[28] Black’s Law Dictionary (10th ed 2014)

[29] Muhammad Daud and 4 others v Muhammad Farooque and 4 others 2015 C L C 653

[30] 3 E.L.R. 488

[31] Patronage.(n.d). In Wikipedia https://en.wikipedia.org/wiki/Patronage

[32] 2015 C L C 1477

[33] The Constitution of the Islamic Republic of pakistan 1973

[34] Black’s Law Dictionary vb.15c (10th ed 2014)

[35] The Constitution of the Islamic Republic of Pakistan 1973

[36] Suo motu case no.7 of 2017 P L D 2018 Supreme Court 72

[37] 2009 C L C 65

[38] Article 34 of The Constitution of the Islamic Republic of Pakistan 1973

[39] Jyostna Chandra V Mehrab Ali 3 E.L.R. 488


The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Muhammad Zafar

Author: Muhammad Zafar

The writer is an intern at Courting The Law and a first year LLB student at SZABIST. He is ambitious about fighting injustices and promoting social causes.