SHIV KIRPAL SINGH versus SHRI V. V. GIRI

SIUV KlRP AL SINGH v.

SHRI V. V. Gnu September 14, 1970 'n WITH CONNECTED PETITIONS [S. M. SIKRI, J. M. SHELAT, V. BHARGAVA, G. K. MrrTER :AND c. A. v AIDI.ALINGAM, JJ.J

Presidential and V~ce-Presidential Election Act 31 of 1952-Part 111 of A:t whether ~Itra V.ll'es Art. 71(1) of Constitution of India 1950--£/ectton o~ Pres1~ent whether. c~n be challenged 011 grounds other thun . those mentwned ~~ s. 18-Validtty of s. 5(2)-Section whether ultra \ires Art. 58 oj ConstJtutlon-Ca_ndi4ate signing his non_rination paper before prof!o_ser or seconder-Nommatt~n paper whether /table to be rejected-ll_altdtty of s. 21-Whether sectiOn suffers from vice of excessive deleca-tron of legislative power-'Undue influence' itJ s. 18 meaning of--5tate-ments within purview of s. 171 cflndian Penal Code whether can also /all under s. 111C-Comrivance by candidate of exercise of undue influ· enu by others, proof-Material t!ffect on election, proof-Bribery, evi-D dei'ICe of.

Costs-Election Petition-When cosl! may be refused, Presidential and Vice-Presidemial Election Rules, 1952-Validity of Rule:J 4( 1 )and 4(2)-Requiremellf that nominatio11 paper must be ac-companied by certified copy of entry in electoral roll relating to candidate, whether arbitrary and rmreasotwble and ultra vires 11, 21 of Act 31 of 1952 -Validity of rr. 4(3) and 6(3)-Requirement that elector shall nor subscribe whether as proposer or seconder more than one nomination paper a/ any election, whether contravene3 s. 5(2) of Act 31 of 19?2-Certi/ied copy of electoral roll entry relating to candidate--Who can u.rue.

Corutitmion of India, 1950, Art. 58-Age of candidate for office of Prtsidel'll of Jndia,-Minimum age prescribed as 35 year~-Entry In elec-toral roll showing candidate's age as above 35 years-Candt1at~s own state-ment as to date of birth showing he /11 below 35 years-ReJI!Ctton of nomi-F nation papu wht'fher justified.

Constitution of India, 1950, Arts. 54, 367, 372 and 3~1-A--Gmerol Clause:J Act, s. 3(58)-Unlon Terrilory wltetlter 'State' wl/l11n meanf'g,:! Art, 54--Elected member:J of LtJtl~·/atures of Union Terrllorles 'S'fde~~ of num be Included In Electoral College for election to office o/ Pre India, . . ld • 10 t 1969

India, The election to the office of President . o[ I_ndia . . ld • 10 u~~ t main 1969 Was challenged In five election petition! fil.:d [10 ]thJs f[0]~t1·t"on of an QU<.'Siion that 'fc iJ (or COmidcration WllS whether th~ at;U~I ~ne of "tbo anonymous pamphlet making defamatory statcmenh ctitione,-, amount. candida!~ at the election, In the manner alleged by, [1 ]e J'r s 18 [' ][of ][the ]e(J to exercise of undue influence within the meamng 195.; read witb a. Pr~idential and Vice-Presidential Elec.tion Act ti~~ ~he Co;;rt bud furt~er 171 of the Jndlan Penal Code. Jn thrblf~n~c~nd distributed bv the ~­to ning candit~ult decide whether of the date election or with his conn!vnncoir the was pamphlet wos maten~lly [8 ]pu ec b~ s ~lsby her uestions 811 [);'0 orters publication and o! whethe~ aod low I d1s~; .e bution "' the pamphlet in question. Thep~ Jllqof Act 31 o! 1952 h~d ft:ll ror eon~lderation were (i) whether

the effect of curtailing the jurisdiction of this Court under Art. 71(1) of the Constitution and was therefore ultra vires; (ii) whether an election under the Act could be challenged on grounds other than those mentioned in s. 18 of Act 31 of 1952 which fell in Part III thereof; (iii)' whether :->. 21 fJf the Act was void because of excessiv.!! delegation of legislative power; (iv) whether r. 4(1) was ultra vires s. 21 and also void because it was arbitrary and unreasonable; consequently whether :r. 4(2) was void; (v) whether the prohibition in· r. 4{3) on an elector proposing or second-ing more than one candidate was ultra vires s. 5(2) of Act 31· of 1952; consequently whether s. 6(3) was yoid; (vi) whether nomination paper of one of the candidates was rightly rejected when the electoral roll showed the candidate's age as above. 35 years·but the candidate's own statement us to his date of birth showed that he was below 35 years; (vii) whether certified copy of entry in electoral roll relating to candidate must under the Rules be issued either by the Electoral Registration Officer. or the -~ssistant stgncd first Electoral' by the candidate and thereafter Regi~tration Officer; (viii) by wh~ther hts proposer nomination and seconder paper could be treated as valid; (ix) whether the elected representatives J~f the Legislatures of Union Territories arc entitled to be included irt · · the Electoral College for the election of President of India O'l the footing that the word 'State' includes 'Union Territories'; (x) whether s. 5 (2) of Act 31 of ·1952 is ultra vires Art. 58 of the Constitution; (xi) whether .the \)ffcncc of 'bribery' as alleged by the petitioners was shown to have been committed and (xii) :whether in the circumstances of the case costs shduld he awardeo to the winning party. Dismissing the petitions,

HELD : (A) Per Sikri, Shelat and Vaidialingam, JJ. (Bhargava and Mittce, JJ. dissenting) : (a) Though undue influence for purpose of s. 123 the Representation of the People Act. 1951 .has the same meaning as in 1hc present Act that section does not go as far as. s. 18 of the present Act so as to provide that even if it is committed by third party that is to say not an election agent nor person with the consent ~f tne returned cant.lidate, the election ·.would still be declared to be void provideo it has been materially affected by such undue influence. Fron\ . tpe fact that hoth these Acts were enacted by the sarrie legislature and Act·3I of 1952 was passed after the Representation of the People Act was passed, it is dear that Parliament deliberately made s. 18 stricter than the Representu-tion of the People Act. firstly, by using the word ''his consent" and secondly. by including undue influence committed even by stranger having nothing to do with returned candidate as ground for declaring the election to be void, the only condition in respect of such an Act being that it should have materially affected the election. The object of doing so is obvious. namely. that Parliament wanted to ensure that in respect of an election for the highest. Q.ffice in the realm the election should be completely free ~·rom any improper .liTfh~ ~manating even from third party with whom the returned canJidate had no eon~tion and without any connivance on his part. The only limitation placed in s. 18 is that in such case It has to be established that the election was materially affected. The que,;-tions therefore which would arise under s. 18 would be : (1) Has the nffen~c of und~e influence been committed ? ( 2) If so .. was it committed by the returned cand·idate or by person with his connivance? and (3·) Even if the offence was committed by stranger and without .the conni-nnce of the returned candidate. bas the committal of that offence by Guc:h · "any person'' materially affected the election~· [222 E-22381

The argument that s. 17l of the Indian Penal Code does not apply tll the first st~ge when the e_lcctor goes thro!t!!h the mental process of weighing merits and Jemcnts of the candtdates but _only to. the second stage when having maJc his choice be goes to cast hts vote tn favour of

the candidate of his choice, cannot be accept~. The argument completely disregards the structure and provisions of s. 171 C. The section "is en~ted in three parts. The first stage contains the definition of undue influence. This is in wide terms and renders person voluntarily interfering or .1ttempting to interfere with 'the free exercise of any electoral right guilty of committing undue influence.. That this is very wide is indicated by the opening sentence of sub-s. (2) that is, "without prejudice to the 8 generality of the provisions of sub-s. (1) ". It is well settled that when ~r .• ~ e"oression is used anything contained in the proivsions 'following this expression is not intended to cut down the generality of the meaning of the preceding provision. [224 G-225 B]

King Emperor v~ Sibnath Banerii {1945] F.C.R. 195, referred to.

It follows that sub-s. ( 1) has to be looked at as it is without Testricting its provisions by what is contained in su~s. (2). Sub-s. (3) throv.'S great deal of light on this question. It proceeds on the assumption that decla-ration of public policy or promiSe of public action or the mere exercise of legal right can interfere with an electoral right, and therefore it provi-lles that if there is no intention to interfere with the electoral right it ahall not be deelhed to be interference within the meaning of this section. Such declaration of public policy or the promise. of public action can only act and tend to interfere at the stage•when vottr is trying to make up his mind as to which candidate he would support. [225 B-Dl

Sub-s. ( 3) further proceeds on the basis that t~e expression "free exer~ cise of the electoral right" does not mean that voter is not to be iriftuenc-cd. This expression has to be read in the context of an election in demo-erath: society and the candidates and their supporters must naturally be allowed to canvass support by all legal and legitimate means. This exercise of the right by candidate or his supporters to canvass support does not interfere or attempt to interfere with the free exercise of the electoral right. What dot\s however attempt to interfere with the exercise of an electOral right is "tyranny over the mind". If the contention of the respondent was to be accepted it would be quite legitimate on the p\U't of the candidate or his supporters to hypnotise voter an~ then· send him to vote. At th~ stage of casting his ballot paper there would be no pressure cast on him because his mind has. already been made up for him by the hypnotiaer.

l225 B-Gl

From reading of s. 171 it is clear that in pursuit of purity of elec-tions the legislature frowned upon attempts to assail such purity by means of false statements relevant to the p'ersonal character and conduct of the candidate and made such acts punishable thereunder. But the fact that making'of such false statement is distinct offence under s. 171 does not and cannot mean that it cannot take the graver form of undue influence .punishable under s. 171F. The false statement may be of such virulent. vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their bei-ng affected or attempted to be affected by the maker or the publisher of such statement. Therefore, it is the degree of gravity of the allegation which will be the determining factor in deciding whether it falls under s~ 171C or s. 171G. If the alleption, though false and relating to candidate's personal charnc-ter or conduct: ma~e ':Vith the intent to affect the result of an election, does not amount to. mterference or attempt at such interference, the offence would be the Jesse~ one. . If! on the other hand, it amount~ to interferenc~ or an 1!-ttempt to mterfere 1t would be the graver offence under s 171F read With s. 171 C. [225 D-{J] _ '

The. above view is supported by the statement of objects :md reasons attached to the bill which ultimately resulted in the enactment of Ch. IXA of the Indian Penal Code, and by number of decisions given on similar staluto·ry provisions. [226 B-Hl

Amritsar City '(Mohammadan) Constituency Case No. 2-The Indian Election Cases ( 1935-50) Dobia Vol. II, 150-157; .Tujhar Singh v. Bhairon Lal 7 E.L.R. 457, 461; Radhakanta Mishra v. Nityanand Mahapatra, 19 E.L . .R. 203, ·and Baburao Patel v. Dr. Zakir Husc.'in, [1968} 2 S.C.R. 133, 145. referred to.

(b~ On the evidence in the case it must be held that the pamphlet in question was distributed by post and in the Central Hall of Parliament by some members of Parliament and there was wide rtiscussion about it in the Central Hall. The allegations in the pamphlet, made against one of the losing candid~tes were covered under s. 171C I.P.C. even if they may be covered under s, 1710. [231 F; 257 B)

The argument that the pamphlet cotttd not come under s. 171 because it. was anonymously distributed was fallacious. series of anonymous attempts in country like ours wo11ld have as much if not more, effect as one open power'ful attempt. It would be dangerous to provide sanctuary for anonymous attempts. Moreover, when members of Parliament distri·-bute pamphlet in the Central Hall it has the same effect as if they had endorsed the pamphlet in writing. {231 H]

Accordingly it must be held that the distribution of the pamphlet by post as also distribution in the Central Hall constituted an attempt to in· terfere with the free exercise of the tight of vote within s. 18 of the Act. [232 C)

(c) There was however no evidence to show that the respondent bad any connection with the pamphlet or with its distribution. Nor was <'here any evidence to show that anyone connected. with the distribution either through the po:,t or in the Central Hall had any contact with the respondent. er that he distributed it with his knowledge o~ c;:onnivanee. [257 J:>r-:EJ

[257 J:>r-:EJ

(d) It is well settled that the burden of proving that the result of the election has been materially affected is O[l the petitioners. As held by tbi!l Court in Samant N. Balkrishna v. George Fernandes, the matter cannot be decided on possibility or reasonable judicial guess. There was no justifica-tion for over~ruliog that decision. [265 D-266 Cl

Vashl'st Narain v. Dev Chandra, [1955] 1 S.C.R, 509, Mahadeo v. Babu UdtJi Prat(ip Singh; A.J.R. 1966 S.C. 824, Paokai Haikip v. Rishang C.A. :~''· .683/1958 dt. 12-8-1968, G.K. Samal v. R. V. Rao, C.A. No. 1540/69 dt. ,20"1•197(}, S1mndra Nath Khosla v. Dalip Singh, [1957] S.C.R. 179•, r~tie!-ti>n.: . . . .

SamatJt N. Balkrishna v. George Fernandes, A.I.R. 1969 S.C. 1201, n:-.. :. . ... ·. ·. .

-r•· r•·

~;-r•· r•· _(· .. i . . . .. ·•lftnn~• .. :. . ... ·. ·.

12ri\/;':'{f-~bii·ti~:e\.1de~ce .. in tlie present case it was difficult to hold that the . peti~ :.: · ·. ·· · : tloners had proved· that the publicatiof!. and di!(ribution of the pamp~l·et :: :. : · . materially aflected.the result of the election. Jt only le~ds. tQ the conclusion Y~~c· ·' .; that~it.:probably _d1d have some effect but the vast maJonty of t_he electo~s "?'~.· • · w~ able to throw o1t the effect of the pamphlet and VC?te accordmg to tbeu-. ' . . ~'Wit personal wiSh or according to the mandate of the1r party, [269 B........C]

; - I- ~

Per Bhargava, J. : Sub-llection ( 1) of s. 171 in general terms make& any act an 'undue intluence' ·i!f it interferes or attempts to interfere with the free exercise of any electoral right and if it is committed voluntarily. The electchtl right according to the definition in s. 171A (b) is the right of voter to vote or refrain from voting. Undue influence can be held to be committed if the person charged with the offence interferes or attempts to interfere wit~ the fri:e exercise of this right of voting or refraining from voting. When an elector exercises the right of voting it can be envisaged that he goes throug.'t the mental process of first taking decision that he will vote in favour of particular candidate and thereaftelr, having made up his mind, he has to go and exercise that electoral right by casting the vote in favour of the candidate chosen by him. The language used in s. 171C indicates that the offence of undue inftuence comes in at the second stage when the offender interferes or attempts to interfere with the free exercise of that choice of voting in accordance with the decision already taken bf the voter. It, therefore, follows that if any acts are done which merely inftuence tho voter in making his choice between one candidate or another, they will not amount to interference with the free exercise of the electoral right. In fact all canvassing that is caiTied on and which is consi-dered legitimate is intended to influence the choice of voter at the first stage and that i11 quite permissible. Once the choice ha·s been made by the voter, there should be no interference with the free exercise by him of that choice by actually casting the vote, or in the alternative the're may be cases where voter may decide that he will not vote. for any candidate at all but some acts are done which compel him to cast his vote. It is in such easel! that the offence of undue influence will be held to have been committed. r32o B-GIThe language used in the definition of undue intluence implies that an offence of undue influence will be held to have been committed if the elec· tor having made up his_ mind to cast vote for particular candidate does not do so because of the act of the offender, and this can only be if he is under the threat or fear of some advelrse consequence. Whenever any threat of adverse consequences is given it will tend to divert the elector from freely exercising his electoral right by voting for the candidate chosen by him for the purpose. In case where the voter is threatened with an injury as defined in the Indian Penal Code, it has to be deemed under s. l71C (2) (a) that it interferes with the free exercise of the electoral right of the voter and the same applies if the elector is induced or attempt is made to induce him to believe that he or any person in whom he is interest-ed will become olr will be rendered an object of divine displeasure or of spiritual censure. There can, however, be cases where the threat may not he of an injury as defined in s. 44 I.P.C., where the harm caused must be illegal. [320 H-321 CJ

Mere propaganda against candidate cannot be held to be exercise of undue influence. The word free is used in "S. 171C I.P.C. as qualifying exercise' and not as 'qualifying' the wdrd 'vote'. If undue influence had been interference with the exercise of free vote, possibly the definition could have been construed a3 indicating that influence brought on the mind of yoter so a~ to cha~ge the rnan~er of his voting by. affecting his choice and JUdgment 10 selectmg the cand1date for whom he ts going to cast his vote would be comprised within undue influence. The word free having been used as qualifying the wor~ 'exercise' gives the indication that the freedom envisaged is to cast the vote in accordance with the choice alreadv arrived II :tt and. if such freedom of cnsting the vote in that manner is interfered with the offence of undue influence will be held to have been committed.

[322 A-CJ

The subject of influence at the stage of making choice was dealt with

[197) ]2 S.C.R. .

... . 202

"in Ch. IXA of the Indian P.:nal Code under separate anu distinct provi-A ~ion which is contained in s. 171 G. This section clearly recognises, that, at elections, the're is bound to be propaganda ,in which candidates or their ·supporters may be issuing statements so as to influence the voters against their rival candidates, and it limits the' prohibition by law to only those statements of fact which are false, or believed to be false, or believed not to be true, in relation to the personal character or conduct of any candidate, Thesi! false statements about the personal character and conduct of the candidate may .of course be scurrilous and foul, but even theri.. the oft'enc&: comn1itted· would faH under s. 171G I.P.C. which makes the offence punish-able with the firie only. On the other ha'nd, an offen~o:e··of undue influence as defined in s. 171C I.P.C. has been made punishable under s. 171F I.P.C. with imprisonment of· either de-scription for term which may extend to one year or with fine, or with both_ If it is held that false propaganda · ugainst pe'rsonal C'haracter or conduct oCa ~didatc can amount to undue influence the person indulging in that propaganda would -become liable to punishment under s. 171F I.P.C. which has been considered more serious offence by being made punishable with imprisonment in addition to, or, in the alternative with fine. This interpretation would thus make s. 171 l.P.C., totally ineffective and otiose.' 1f the false statements as to personal character or conduct a're held to be punishable under s. 171F as constituting the offence of~undue influence, there would b~ no point in prosecuting the ~"me person for the less serious o~~nce under s. J}JG. [323 C-324 Al

In the Representation of the People Act. 195 t also. undue influence is .defined in almost the samc ·languagc as that contained·in s. 171C l.P.C. Jn that Act an eleCtion can be dedared void not only on the ground of com-mission of the corrupt practice of undue inlluencc. but also on the g:rc;i.md of publication of false propaganda as to the personal character or conduct of candid,ate. Parliament, however, cho-se not to include any such provi-sion in Act 31 of 1952 which was passed when the Representation of the People Act, 1951 had already. been enacted and enforced. The omission may be deliberate or accidental but. in either case, it is not for th; court tn attempt to fill up this gap by enlarging the meaning to be given to the· expre~sion ·undue influence' which is the corrupt practice included in the Act as ground for setting aside tht: election. It is clear from the scheme of Ch. IXA of the Indian Penal Code that false propaganda as to the per~ sonal character and conduct of candidate was created as sepaJrate ·offence-and the definition given in s. 171C of undue influence was not in·-tended to lay down that such propaganda will amount to interference with the free exercise of electoral right so as to constitute undue influence. [324 F-325 A]

Case-law referred to.

(b.) In the present case the contents of the pamphlet in question did not contain any threat of nature which would constitute undue influence as explained above. But even on the assumption that the publication of this pamphlet could constitute undue influence the election of the respondent was. not liable to be set aside because it had not been proved that the distri-bution by post or in the Central Hall of Parliament was with connivance of the respondent dr had materially affected the result of the election. [337 ·B-FJ . '. Per Mitter, J.-The only difference between the Act of 19~1 aDd tbe Act of 1952 lies iri .the fact that under the latter Act corru!)t practice of ·. bribery and undue influence by one who was not party to the electi~n 1)r his agent are also brought. in. But the nature and c~aracter of undue m-fluence under both· the Acts remains the saJlle. There ts no reason for tak· ing the view that what would not be undue influence under the Act of 1951 can become one un4er the Act of 1952. [354 F-GJ

[354 F-GJ

If publication of any defamatory matter relating to candidate was to-be treated as direct or indirect interference or an-attempt to interference with the exercise of any electoral right under the wide words of s. 171C(l) there would have been no occasion for the legislature to provide for it separately under s. 123 ( 4) of the Act of 1951. The same position would obtain under the Act of 1952, and before any publication of defamatory matter relating to candi<tate can be treated as commission of the offence of undue influence there must be some overt act in addition to the mere publication, S('lme attempt or persuasion of voter to restrain the free choice of candidate before the law of undue influence is excited. [354H-35SBJThe decided cases are sufficient to reject the respoqdent's contention that in otd~r. to establish undue influence it must be shown that there was some threat to voter or at least an element of complusion in the appeal to him. The case~ also show that it would be futile to attempt to lay down simple test applicable to all sets of facts and circum:stances where undue influence is alleged to have been exercised. It can however be said that an attempt on the part of anybody to deftect voter's will away from parti-cular candidate by creating prejudice against or hatred for him, as for in- · s~ance by casting false aspersions on his personal conduct and character whether by spoken words or in writing may be sufficient for the purpose of establishing the commission of undue influence.. Much would however de· pend on the nature of the attempt, the. position of the person making it, and · the manner in which it is made. The mere publication by postal despatch of an· anonymous but scurrilous pamphlet relating t<1 the personal character of .a candidate to voters all and sundry might attract the operation of s. 1710 of the Indian Penal Code but would fall short of s. 171C. But if such pamphlet is pressed upon voters and methods of induj:ement applied to- them, specially by others who are equally interested in the election. different considerations may well arise. ln such case court of law may legitimately hold that the dis~eminators of the pamphlet were attempting to canalise or force the will of others away from the person whose. character . was assailed. [263 B-F]

Case-law referred to.

(b) There can be no doubt that charge of undue inftuence is in the nature of criminal charge and must ·be proved by cogent and reliable evidence not on the mere ground of balance of probability but on reason. able certainty that the person'S charged therewith have committed the offence, on the strength of evidence which 1e~tves no scope for doubt as to whether they had done so. Although there are inherent difference~ betweeft tnc trial of an election petition and that of criminal charge in the matter of investigation. the vital point of identity for the two trials i:o that the court must be able to come to the condusion beyond any reasonable doubt as t& the commission of tht corrupt practice, However onerous, the task of the court may be because of the partisan nature of the witnesses it cannot reject the oral evidence adduced merely on that ground, but it has to examine tl\e SMme carefully and come to concbl· sion whether the evidence establillhes the corrupt practice beyond reason-able doubt. Even .in criminal trial t~ coun can hold person guilty of c,rime on the stn:ngth of evidence of partisan witnesses if they are found to be reliable although there may be no independent corrobontion therepf and there is no reason to depart from that prim:iple in the ·trial of an eJection petition where charges of o«enees culpable under the Indian Penal Code are levelled. [366 F-367 G)

Case-law refdrred to.

(-.b) ll\ the present case· althouah the pamphlet in question was defa-matory, tile evidence fell short of any per!Onal appeal through the means of .the pamphlet and it could not be held that the offence of undue influence

was committed by some people by merely distributing the same. Such distribution may attract culpability under s. 171G of the Indian Penal Code but would not per se attract s. 17IC. [380 D]

Mitter and Vaidialingam, JJ.

(b) Per Bhargava, J (Sikri, Shelat, concurring) :

The contention that Part Ill of the Act is ultra vires Art. 71 (1 ) of the Constitution on the ground that it purports to curtail the, jurisdiction conferred on the Supreme Court to enquire into and decide all doubts and disputes arising out of or in connection with the election ot. Presi-dent or Vice-President by laying down certain limitations such as the grounds on which only the election of President may be cha~enged in an election petition, cannot be accepted. similar contention was reject-ed by this Court in Dr. N. B. Khare's case. Even if it is accepted that Art. 71 (1) lays down the jurisdiction of the Supreme Court, the manner in which that jurisdiction is to be exer~ised can only be regulated by an Act of Parliament passed in exercise of its power under Art. 71 ( 3). Jn exercise of the power to regulate all matters relating to or connected with · the election of President or Vice-President, Parliament clearly had the power of laying down the grounds on which the election can be challeng-ed and set aside, in addition to other matters rel:\tirlg to the election. {295 B-297 BJ

Dr. N. B. Kh.are v. Election Commission of India, [1958} S.C.R. 648, .applied.

The fact that Art. 71 ( 1) does not contain provision corresponding to that in Art. 329(b) which specifically mentions law made for calling 1n question an election by an_ election petition, could not lead to an in-ference in support of the petitionelr's argument. Article 329(b) is provision which lays down limitation on the manner in which an elec-tion can be called in question, while the procedure for calling in question the election, as well as the grounds on which the election can be called ·in question, can only be hiid down by Parliament by law passed under Art. 327. In the case of Art. 71, it appears that no need was felt of makin~(a provision similar to Art. 329(b) when A'rt. 71(1) itself laid ·down the limitation that all doubts and disputes arising out of or in con-nection with the election of President or Vice-President are to be in-quired into and decided by the Supreme Court whose decision shall be final. [297 C-G]

(ii) On the above .finding that Part III is not ultra vires, the .-:onten· tion that the petitioners were entitled to challenge the election on ground~ other than those mentioned in s. 18 of the Act, must also fail. ~315 HJ

{iii) The power of making rules conferred on the Central Govern-· ment by s. 21 of the Act is subject to two principles of guidance. One i~ that the .rules are to be made after consulting the Election Commission, arid the second is that the Rules must be such as are needed for carrying out the purposes of the Act. Such power being already limited by tbe purposes of the Act cannot be held to be unguided or even arbitra11·, ~ven though Parliament did not choose to lay down the requirement that the Rules framed must be laid on the table of the two Houses of Parlia-ment and should be subject to modification or annulment within specifie period. In fact, Parliament all the time has power of altering the Rules by amending the Act itself in case it disapproves any of the Rules made by the Govet:nment, while a~~ Rule, which is shown to have been !llade in contraventiOn of the prov1s1ons of the Act, would be declared vo1d by the Court not on the ground that there was excessive delegation of !egi~-lative power, but that it goes beyond the scope of the power conferred

on the Government under s. 21 of the Act. Section 21 of the Act cannot therefore be held to be void on any ground. [298 B-GJ

(iv) The contention that r. 4(1) of the Presidential & Vice-Presidential Rules 1952 is beyond the rule making power of tlte G<Wem-ment under s. 21 of the Act 31 of 1952 has no force. Clause (d) of sub-s. (2) of s. 21 lays down that the Rules made under that section may, in particular, and without prejudice to the generality of the power granted under sub-s. ( 1), provicte for the form and manner in which nominations may be madt and the procedure to be followed in respect of the presen-tation of nomination papers; and the requirement that certified copy of the entry showing that the candidate being nominated is an elector for Parliame;::.~ary constituency which alone makes him eligible to stand aa candidate for the office of President or Vice-President must accompany the nomination paper falls squarely within this clause. This requirement relates to the man.ner of proving that the candidate is an elector in Parliamentary constituency. In any case, this provision in r. 4(1) would be fully covered by s. 21 (1) of the Act inasmuch as the requirement ia fdr no other purpose except of ensuring smooth and proper election to the office of President .or Vice-President which object can be achieved by enabling the Returning Officer to ensure that candidates, whose nomi· nations are accepted by him, are eligible for election. [299 0-F]

Ranjit Singh v. Pritam Singh & Or:r. [1966] 3 S.C.R. 543 applied ..

The election to the office of President or Vice-President mav not coincide with or be very do'le to the time when there is general revision of the electoral rolls, so that the electoral roll printed or published near-about the time of. general elections may be out of date by the time the election tor the office of President or Vice-President is held. The pub-lished electoral roll may therefore be misleading if it is allowed to be filed before the Returning Officer to show eligibility in the case of Presidential or Vice-Presidential election. That, seems to be the reason why r. 4 (1 ) lays down that certified copy of the entry alone will be the proper mannct of satisfying the Returning Officer of the eligibility of the candidate. The rule is therefore neither arbitrary nor unreasonable. [301 B-E] .

Acccudingly r. 4(1) must be held to be valid. Rule 4(2) which prea-cribes the consequence for non-compliance with the requirement of r. 4( 1) must also be held to be valid as it is intended merely to make the valid r. 4( 1) ~ective. [301 Fl

(v) The s'Obmission that s. 5(2) should be read as conferring any rlabt either on the candidate or on the electon in respect of signing of nomi· n11tion pape.;s cannot be accepted. Had there. been an intention to eon-fer right on any of them the language would have been different aivina such indication by layin& down what thP, candidate and the electors are enritled to do in respect of nomination paper. Obvioualy, s. 5 onlY lays down the essential ingredients of the process of nomination1 leavin& the details .of the manner of nomination to be filled up by llwes made by the Oovmunent under s. 21 of the Act. Rule 4(3) which requires that no elector shall sub5cribe whether as plroposer or seconder, more than one nomination paper at any election, is thus, supplementary to s. 5(2) as containing more detailed direction in respect of filing of nomination papers. [302 D-303A]

The fact that there is no ban in s. 5(2) of the Act on an elector signing more than one nomination paper as proposer or seconder does not, therefore, mean that r. 4(3) of the Rules could not have been

com~tently made by the Government Rule 4(3). on the face of it . co~tams very. reasonable direction. If there is only one vacancy for wb1c~ election IS to be ~eld, an elector can reasonably be expected to nommate only one candtdate as proposer and put him forward before the other electors as suitable person to be chosen. Similarly, when seconding nomination paper, an elector indicates his preference for that candidate to the general electorate which is to cast votes at the election. the indication of such choice is restricted to as many candidates a~ there are vacancies, the provision is, on the face of it .salutary and conducive to proPE:r election. [303 H-304 BJ

The historical background of the Rules. relating to elections in lnc:tia also bears out that such prevision has always been considered desirable. similar provision exists in the Rules governing elections in England . . [304 C-305 DJ . . · .

: In the circumstances it must be held that r. 4(3) of the Rules was validly made by the Government in exercise of its rule making powe1: under s. 21 of the Act~ that Rule being valid r. 6(3)(c) of the Rules which is consequential, must also be held to be valid. [305 Hl

Amolok Chand v. Raghuvir Singh, [19'68] 3 S.C.R. 246, referred to. ·

(vi) The entry in the electoral roll showing candid~.te as being above 35 years of age has little value when the candidate's own statement to the Returning Officer as to his date of birth shows that he is below 35 years of age. [306 E-FJ

(yii) There is nothing in the Rules framed under the Act or under the Representation of the People Act, 1950 and Rules framed t~ereunder, requiring that certified copy of the eltctoral roll must necessarily be issued by either an Electoral Registration Officer or ~-n~tant Electoral Registration Officer. Every government servant, who · has custosly ·of document, is competent to issue certified copies of that document. {;308 B] ·

(viii) When the Act was enacted in 1952, the law in India, as admi-nistci·ed bv various Election Tribunals, was clear that the order in which signatures are made on nomination paper by the candidate the pro-poser and the seconder is immateri~l and no nomination paper would he invalid if the signaturi!S are ni1lde· by .the_candidate before the pro-puser and the seconder signed it. The Legislatute, when enacting the Act must be presumed to know that this w.as the law as intet'preted in lradia and consequently, whcu the language incorporated in s. 5(2) of lhe Act was used, it mu3t have been intended that nomination papers would not be invalid by reason of the candidate making his signature before the proposer and the seconder. r3I2 C-El

Therefore. in the present C!ISe. the nomination papers Of the candidate who signed 'his nomination paper before the proposer and tbe seconder a!'; well as those of the candidate who signeo his. nomination paper 'before his seconder. were rightly accepted.

[.312 F)

Case-law referred to.

(ix) The. argument thut the definition of ·state' in s. 3 (5!0 of the General Chlllscs Act inclu<.lcs Union Territories and therefore the elected members of the Legislative Assemblies of the Union Territories arc nls(' to be inciUlkll in the Electoral College. mu<.t he rejected. £3D D-El

It is ~rue that unJer Art. 36 7. the Gene'ral Clauses Act ap~Jlics for interpretation of the ·con~litlltion as it . applies for ~he interpretation of .m Act of the Lcgi~lature ot the Dom11110n of [n<.ha but that A~t ~a-: been applied a<; it stood on ~nth January. 19:'0 when the Consti!UIIO~<

came into force subject only to any adapta1ons and modifications that may bt' made therein under Art. 3 72. The General uses Act as it was defined State so as to include Union Territory. This was done by Art. 372 which was introduced by the Constitution 7th Amendment Act, 1956. The new definition of State in s. 3(5) of the General Clauses Act as result of the modifications and adaptations under Art. 37l(A) wquld, no doubt, apply to the interpretation of all laws of Parliament but it cannot apply to the intel'ijretation of the Constitution because Art. 367 wus not amended and it was not laid down that the General Clauses Act as adapted and modified under any Article oth« than Art. 372 'M1l also apply to Ole interpretation of the Constitution since its amendment in 1956. Since, until its amendment in 1956, Section 3(58) ol- the General Clauses Act did not define 'State' as including Union Territories for purposes of interpretation of Art. 54, the Union Territories cannot be treated as included in the word 'State'. [313 E-314 BJ Further the members of Houses known as Legislative Assemblies under Art .. 168 can be members ot the Electoral College under Art. 54. In the case of Union Territories the provision for legislatures is contained il1 Art. 239A but that Article does not mention that any house of the legislature created for any Union Territories will be known a!' Legislative Assembly. All that that ,Article lays down is that Parliament may by law create body whether elected or partly nominated or partly elected 0 to function as Legislature in the Union Territory. Such Legislature created by Parliament is not legislative Assembly as contemplated under Art. 168 or Art. 54. Members of Legislatures created for Union Terri- . tories under Art. 239A cannot, therefore, be held to be members of Legis-. lative A&<iemblies of States. They were, therefore, rightly excluded from the EJ,~toral College. [314 C-El

(x) On the .face of it the argument that s. 5(2) of the Act con-travenes Art, 58 or any other Article of the Constitution has no force at all. The !'equirement laid down by Parliament that every person. must be nominated by two electors as proposer and seconder is reasonable requirement relating to regulation of election to the office of President and cannot be held to be curtailment of the right of candidate to stand as candidate under Art. 58. [315 E)

(xl) If in fact licence had been granted to private limited com-F pany with the specific purpose of obtaining the vote of an elector, for the respondent, that could constitut~ bribery. However from the evid-ence led on this issue on behalf of the. petitioners themselves no case at aU of commission of the offence of bribery during the election period could possibly be established. [316 G-Hl

(C) Per Sikri, Shelat and Vaidialing~:iffi, JJ. (Bbargava and Mitter, JJ. Concurring)-The pat-ties must bear t~eir own costs.. The .,amphlet had been sent by post and distributed in the Centtal Hall and this justified the petitioners in bringing the two main petitions. Most of the evidence which was led in court dealt with the question of the distribution of the pamphlet. Further, number of witnesses bad not told the whole truth. It was distressing to see truths being sacrificed at the altar of political advantage by these witnesses. [288 B--C]

OJUGINAL JURISDICTION : Election Petitions Nos. 1 and 3 to 5 of 1969.

Petitions under Part ID of the Presidential and Vice-Presiden~ tial Elections Act, 1952. f-L308Sup.Cif71

t r LJ7 11 ~ s.c.~<.

A1. S. Gupta. K. C. Sharma, K. !.., Rathi and C. L. l.akhml(l({{.

for lhc petitioner (in E. P. No. 1 of 1969).

Petitioner in person (in E. P. No. 3 of 1969).

K. C. Sharma, K. L. Rathi, C. L. Lakhanpal, S. K. Dhingra

and M. S. Gupta, for the petitioners (in E.P. No. 4 of 1969).

S, C. Malik, M. S. Gupta and K. L. Rathi, for the petitioners (in E.P. No. 5 of 1969). · "

C. K. Daphtary, D. Narsaraju, Mohan Kumaramangalam,

S. T. De;o,ai, S. K. Dholakia and A. S. Nambiar, for the respondent (in E.P. No. 1 of 1969).

Jagadish Swarup, So!icito~General, L. M. Singhri, R. H. Dhebar and S.- P. Nayar, for respondent No. 1 (in E.P. No. 3 of 1969) and the Attorney-General for India, Election Commission of India and Returning Officer, Presidential Election (in E.Ps. Nos. 3 to 5 of 1969).

C. K. Daphtary, D. Narsaraju, Mohan Kumaramanga/am, A. S. Nambiar and S. K. Dholakia. for respondent No. 2 (in E.P. No.3 of 1969).

C. K. Daphtary, D. Narsa1·aju, S. T. Desai, Mohall Kwnara• mangalam, H. K. L. Bhagat, s. K. Dholakia, J. B. Dadacllanji, Ra~·inder Narain and 0, C. Mathur, for the respondent (in E.Ps. Nos. 4 and S of 1969).

Jagadish Swarup, Solicitor-General, L. M. Sing~vl, S. P. Nayar,. R. H. Dhebar and Lily Thomas, for the Attorney-General for India, Election Commission of India and Returning Otllcer, Presi~ dential Election (in E. P. No. 1 of 1969).

The Judgment of S.M. Sikri, J. M. Shelat and C. A. Vaidia· lingam JJ., was delivered by Sikri, J. Bhargava, J. add Mitter, J. gav~ separate opinions.

These four election petitions filed under s. 14 of the Presiden· tial.and Vice-Presidential Election Act (XXXI of 1952) (herein-·atter referred to as the Act), and Art. 71 of the Constitution of India cha1lenge the election of the respondent Shri V. V. Giri, to the office of the President of India. The petitioner in Election Petition No. 1 of 1969, Shri Shiv Kirpal Singh, was candidate in the election, and so was the petitioner in Election Petition No. 3, Shri Phul Singh. The nominations of both these petitioners were rejected by the Returning Officer.· Election Petition No. 4 was filed by Shri N. Sri Rama Reddy, M.P., and twelve other elec-tors, all members of Parliament. Eleetion Petition No. 5 was .filed by Shri Abdul Ghani Dar, M.P., and nine other members of

Parliament and eight members of Legislative Assemblies llt Haryana, Madhya. Pradesh and Bihar. Shri V. V. Giri is the sole respondent in Election Petitions Nos. 1, 4 and 5 while in Election Petition No. 3 he was impleaded as respondent No. 2 and Union of India, through the Election Commission, was impleaded as respondent No. l.

llt

After the sad demise of the then President of India, Dr. Zakir Hussain, on May 3, 1969, the Election Commission issued noti-fication under s. 4 of the Act appointing July 24,_ 1969, as the· last date for filing the nomination papers> July 26, 1969, as _the date for scrutiny of the nomination papers, and July 29, 1969, as the last date for withdrawal of nomination papers. Polling was fixed for August 16, 1969. 24 nomination papers were filed before the Returning Officer. On scrutiny which took place on July 26, 1969, the ~eturning Officer rejected 9 nomination papers, including the nomination papers of Shri Shiv Kirpal Singh, peti-tioner in Election Petition No. 1, and Shri Phul Singh, petitioner in Election Petition No. 3. He accepted the nomination papers of 15 candidates. No candidate withdrew his nomination by the· due date. Counting of votes took place on August 20, 1969, when the result was announced and the respondent, Shri V. V. Giri,. was declared elected.

The election was sought to be challenged on various grou11ds in these election petitions. Some of these grounds were common. The ·grounds may be broadly fonnulated as follows :

(1) That the nomination papers of Shri Shiv Kirpal Sing~, . Shri Charan Lal Sahu ~d Shri Yogi Raj were w~ngly accepted by the RetlimiDg Officer;

(2) That the nomination papers of Shri V. V. Giri, ~he respondent, were wrongly accepted by the Return-mg Officer;

(~) That the nomination papers of Shri Ra'bho' Pan_durang Nathuji, Shri Santqsh Singh K:achh~aJ Shn ·Babu Lal Mag and Shri Ram Dulate Tripathi wer~ wrongly accepted by the Returning Officer;

(4) That Part III and section 21 of the Act ultra-vires, the Constitution; re

. (5) T~at ~ules 4 and 6(3)(a) of the Presidential and VIce~Pre&dentlal Election Rules, 1952 (hereinafter referred to as the Rules), promulgated under section 21 of the Act, are ultra vires the Constitution and. th A~

[1971] 2 S.C.R.

( 6) That the elected members of the Legislat:i_ve Assemblies of the Union Territories· were entitled to be included in the El~toral college for the election of the President and their wrongfulnon·in~lusion had not only ll}~Jerially affected the result of. the election but also Vlolated Art. 14 of the Constitution;

(7) That the petitioners were entitled to dispute the election even OJ:l grounds other than those mentioned in s. 18 of the Act;

(8) That the offence of bribery at the election had been committed by the respondent and his supporters wtih his connivance; and

(9) That the result of the election had been ma!e· riallv affected by the commission of the offence of bri· becy by persons other than the respondent.

In addition to these allegation:) it was alleged that the offence of undue influence had been committed at the eleetion with the connivance of the respondent. In any event the result of the election had been materially affected by the commis-sion of this offence. We will elaborate the pleadings on this point when we come to deal with the issues arising out of that allega-1·ion. ·

We have read the judgment prepared by Bhargava, J. He has deal~ fully with the issues arising out of the allegatiop.s other than the allegation of undue influence and, as we agree with him, it is not necessary to add anything to his reasoning. We may, how-ever, reproduce the issues and the conclusions thereon.

Issue No. 5 of Electio~ Petitions Nos. 1, 4 and 5 I 1969

E. P. No . . 1 : Whether section 21 of the Act. is ultlt! vires the Constitution of India ?

E. P. Nos: Whether Part ID and section 21 of the Act are ultra vires the Constitution of India ? We hold that Part ill and section 21 of the Act are not l!ltra vlres the Constitution of India . .

Issue No. 6 of EleCtion Petitions Nos. 1, 4 and 5/69

E. P. Nos. 1, 4 & 5 : Whether Rules 4 and 6(3) (e) of the Rules are ultra vires the Constitution and the ru1e-making power of the Central Government ?

We hold that r. 4(3) of the Rules was validly made by the Gov-ernment in exercise of its rule-making power under s. 21 of tlul Act. That rule being valid, rule 6(3)(e) of the Ru1es, which is consequential, must also be held to be valid.

Issue No. i in Election Petitions Nos. 1, 4 & 5/ .i969

E.P. No. 1: Whether the nomination papers-of tM petitioner, Charan Lal Sahu and Yogi Raj were wroogly rejected as alleged in pargraphs 5(a) and (b), 6 and 7 of the petition ?

E.P. No. 4 : Whether the nomination papers of Shiv Kirpa1 Singh, Charan Lal Sahu and Yogi Raj were wrongly rejected, as alleged in paragraphs 8(a) and 9(a), (b) and (c) of the petition?

E.P. No. 5: Whether the nomination papers of Shiv Kirpal Singh, Charan Lal Sahu and Yogi Raj were wrongly rejected as alleged in paragraphs 8(a) and 9 of the petition ?

We hold that the nomination paper of Shri Shiv Kirpal Singh was rightly rejected on the ground that it was not accompanied by certified copy of the entry relating to him in the electoral roll of the Parliamentary constituency in which he was registered as voter. We further hold that the nomination paper of Shri Charan Lal Sahu was rightly rejected on the ground that he was not 35 years of age on the date of nomination. We also hold that the nomination paper of Shri Yogi Raj was rightly rejected on the ground that he had been proposed and seconded by the same elec-tors who had proposed and seconded another candidate, Shri Rajbhoj Pandurang Nathuji, the nomination paper of the latter having been received earlier by the Returning Officer.

Issue No. 2 in Election Petition Nos. 1 and 5 and Issue No. 3 in Election Petition No. 4 of 1969

E.P. No. 1 : Whether the nomination paper of the respondent were wrongly accepted as alleged in para-graphs 5(c) and 8 of the petition? E.P. No. 4 : Whether the nomination papers of the of the the

E.P. No. 4 : Whether the nomination papers of the of the the respondent were wrongly accepted as alleged in para-graphs 8(c) and 11 of the petition?

E.P. No. 5_ : Whether the nomination papers of the respondent were wrongly accepted as alleged in para-graphs 8(b) and 10 of the petition ?

We hold that the nomination papers ·of the respondent were validly a~: The certified ~ies of the electoral roll filed with the nommation papers were ISsued by the appropriate authority.

We hold that members of Legislatures created for Union Terri-tories under Art.· 239A cannot be held to be members of Legisla-tive Assemblies of States. They were, therefore, rightly excluded from the ·electoral college. Issue No. 4(a) in Election Petition No. 1 and Issues Nos. 7(a) in Election Petitions Nos. 4 and 5 are accordingly decided against the petitioners .. In view of this con-B clusion Issue No. 4(b) and Issue No. 4(c) of Election Petition No. 1 t~nd hsues Nos. 7(b) and (c) of Election Petitions Nos. 4 and 5 do not arise.

Issues Nos. J and 2 in Election Petition No. 3 of 1969

I. Whether the nomination paper of Phul Singh, the petitioner, was wrongly rejected ?

2. What relief, if any, is the petitioner entitled to?

We hold tqat the nomination paper of Shri Phul Singh was rightly rejected on the ground that his nomination paper was not signed either by proposer or seconder. Election Petition No. 3 of 1969 accordingly fails and is liable to be dismissed.

Issue No. 8 in Election Petitions Nos. 4 and 5 I 1969

E.P. No. 4: (a). Whether the petitioners are entitled to dispute the election of the respondent on grounds othc;r than those mentioned in section 18 of the Act ?

(b) If issue No. 8(a) is decided in favour of the peti-tioners,

(i) whether the respondent or any person with his connivance printed, published .and distributed the pam-phlet, at Annexure A-3, to the petition?

\ii) Whether the pamphlet, at Annexure A-3, con-tained any false statement of facts relating to the per-sonal character and conduct of N. Sanjiva Reddy, ~ candidate at the election and other persons named in the pamphlet?

(iii) Whether the persons found responsible for pub-lishing the pamphlet believed the statements made there-in as true or had reason to believe them to be true?

(iv} Whetber the pamphlet was published with the object of prejudlcitac 6e, ~.of the election of Sanjiva Reddy and furtliering the prospects of the elec-tion of the respondent'

, (v) Whether the election of the respondent is liable

:to be declared void On tbis ground ?

[1971] 2 s.c.R.

E.P. No. 5 : Issue 1No. 8 in Election Petition No. 5 is ~bstantialJv the same except that the annexure in Petition No. 5. is Annexure A-38 anci not Annexure A-3. . .

On the first part of Issue No. 8 we hold that the petitioners are 8 not entitled to dispute the election of the respondent on grounds other than those mentioned in s. 8 of the Act. The other part of the issues, as consequence, do not arise at all.

Issues Nos. 9, 9A and 10 in E.P. No. 5/1969

9. Whether the respondent or any other person with his connivance committed the offence of bribery as al-c leged in paragraph 15 of the petition?

9A. Whether the allegations in para 15 constitute bribery within the meaning of the Act ?

10. Whether the offence of bribery was committed at .the election by any other person without the conni-vance of the respondent as alleged in paragraph 15 of the petition, and if so, whether it materially affected the result of the election ?

We hold that no offence of bribery was committed in the matter of grant of licence for the Polyester factory to Swadeshi Cotton Mills.

This leaves Issues Nos. 4 in Election Petition No. 4 and Elec-tion Petition No. 5. These read as follows:

E.P. No.4

(a) Whether all or any of the allegations made in paragraphs 8(e) and 13(a) to (m) of the petition. consti-tute in law an offence of undue influence undt!r section 18(1)(a) of the Act?

(b) Whether the said allegations made in paragraphs 8(e) and 13(a) to (m) are trilf~ and proved?

(c) In the event of these allegations being proved and constituting undue influence,

(i) whether the returned candidate has committed the offence of undue influence ?

(ii) whether the offence of undue 1nfluence was com-mitted by his workers, and if so, with his connivance ?

(iii) whether the offence of undue intluence was committed by others without his connivance, and if so, whether that has materially affected the result of the election?

E.P. No.5

(a) Whether all or any of the allegations made in paragraphs 8(e) and 13 of the petition constitute in law an offence of undue influcmce Jlnder section 18 (l)(a) of the Act?

(b) Whether the said allegations in paragraphs 8(e) and 13 are true and proved ? . -(c) In the event of these allegations being proved ~md constituting undue infiuenoo-

(c) In the event of these allegations being proved ~md constituting undue infiuenoo-

(i) whether the returned candidate has committed the offence of undue influence ?

(ii) whether the offence of undue influence was committed by his workers, and if so, with his conni-vance?

(iii) whether the offence of undue irifluence was committed by others without his connivance, and if so, whether that has materially affected the result of the election?

We may now refer to the pleadings relevant to Issue No. 5 in Election Petition No. 5.

In para 8(e) of the petition it is stated that the offences of undue influence at the election have been committed by the re-tw:ped candidate. and by his supporters with the connivance of the returned candidate. It is further stated that the. material facts in support of this ground are in para 13 of the petition. In para 13(a) are set out the facts which according to the petitioners led to the sharp cleavage between the electors of the Congress Party and all electors in general. In brief, the history of the dispute bet-ween the two sections of the party, which we will refer to as Con-gress (R) led by Shri Jagjivan Ram and Congress (0) led by Shri Nijalingappa, was set out. We need not extract the pleadings on this part of the case in detail because we will briefly refer to the background of the dispute and the facts as proved before us. But we may mention that this Court is not concerned with the merits of the dispute between the two sections of the Congress Party and we will consider this matter only insofar as it throws any light on the question of the offence of undue influence.

[ J 971 S.C.R.

In paragraph 13(b)(ii) it was alleged that "Shri Nijalingappa, Shri S. K. Patil, Shri K. Kamaraj, Shri Morarji Desai and Shri Y. B. Chavan, electors at the election, were threatened by Smt. Indira Gandhi on July 12, 1969, at Bangalore with serious con-sequences with the object of unduly influencing these people for . changing their decision to nominate Shri N. Sanjiva Reddy as their candidate. The threat given was repeated subsequently between 12th and 16th July, 1969 'number of time~." By order dated January 23, 1970, we directed that the petitioners w~re not entitled to lead evjdence on this sub-para because we were of the.· opinion that these allegations, even if accepted, did not constitute any in-ter·f7rence with the electoral right as defined in s. 171-A of the lndran Penal Code, i:e. the right to vote or refrain from voting · at an election. As far as Shri. Sanjiva Reddy was concerned there is no allegation that the Prime Minister had interfered or attempted to interfere with. his right to stand as candidate. ,

In para 1 3(b)(iii) it was alleged that nun1ber of supporters of the returned candidate, and in particular Shri Jagjivan Ram, Shri Yunus Saleem, Shri Shashi Bhushan, Shri Krishan Kant and Shri Chandra Shekhar, Shri Jagat Narain, Shri Mohan Dharia and Shri S. M. Banerji, with the consent or the connivance of the re-turned candidate, published by free distribution pamphlet, An-nexure A-38, in Hindi and English, in cyclostyled form as well as in printed form. in which very serious allegations were made which amounted to undue in~uence within the meaning of s. 171C cf the Indian Penal Code. ·

amounted to undue in~uence within the meaning of s. 171C cf the Indian Penal Code. · In para 13(b)(iv) it was alleged that "this pamphlet was <.listri-buted frorn 9th to 16th August, 1969, among all the electors of the electoral college for the Presidential election. During these . . days it was also distributed in the Central Hall of the Parliament by the persons mentioned nbove. large number of elector.~ were ' asked to read the cllntents of this pamphlet and they were asked "Will you vote for such debauch <md corr,Upt man ?" The minds-of the voters were so unduly influenced and an impression was purposely sought to be created that if Mr. Reddy was elected to the office of the President of India, the Rashtrapati Bhavan will become centre of vice and immorality and that Shri Reddy wilt assume dictatorial powers and will bring an end to democracy iu India. This scare was created in the minds of. the electors with the direct object of interfering with their free exercise of their elec-toral right to vote for the candidate of their choice. As ·single instance Shri Yunus Saleem approached Shri Abdul Ghani Dar, Member of Parliament, one of the petitioners herein, a11d talked to ·him in this beh<tlf as stated earlier. This was said in the presence ·of number of Members of Parliament."

In sub-para 13(b)(v) it was alleged that the petitioner, Shri Abdul ~bani Dar, "wro~ letter to Shri V. V. Girl, copy of which was ·~ndorsed. to the Pnme Minister and Shri Humayun Kabir." In thJs 1ett~r .the petitioner requested Shri V. V. Giri, to condemn those ":ho ~a~ pub~shed this pamphlet and make public state-ment dJssoctatmg htmself from and denouncing the publishers of the pamphlet but Shri V. V. GirLfailed to do so.

In sub-para: 12(b) (vi) it was alleged that 'this low level pam-phlet had evoked .great public and press criticism and it came out openly in the press that such low level pamphlets were being dis-tributed in the ·election campaign.'·' It was further alleged that .C' '[1]even news items regarding this pamphlet appeared in almost all .. ~ Jeading newsp~pers o.f the country. In spite of this, the returned . candidate, who was repeatedly harping upon and asking for votes in the name of character, integrity, etc., failed to dissociate him-.· .self. from the pamphlet or even to condemn the same."

. It was alleged in sub-para (viii) that "the language of the pamphlet and the laudatory references to Smt. Indira Gandhi and her followers themselves point to the origin of the pamphlet."

In sub-para (ix) of para 13!b) reference was made to letter issued by Shri Madhu Limaye, M.P., which he wrote to the Elec-tion Commission of Inoia, protesting against the alleged pamphlet and requesting 'him to take appropriate action. In sub-para (x) reference is made to the reply of the Chief Election Commissioner. It was alleged in sub-para (xi) that similar letter was written by Shri Kanwar Lal Gupta, M.P., to the Election Commission, and in sub-para (xii) reference was made to the reply of the Chief Election Commissioner dated August 14, 1969.

1n sub-para (xiii) it was alleged that the returned candidate. Shri V. V. Giri, made various statements at various places con-demning the decision of the Congress Parliamentary Board in selecting Shri Reddy as its candidate and described it as irnnHl· ture. It is further alleged that Shri V. V. Giri. "repeatedly stated that man of chaxacter and integrity should huve been selected.'' "The· returned candidate in well guarded language was stating that Mr. Reddy was not man of character. He also exhorted Con-gressmen to demand right of vote and made capital of the Con-gress President's appeal to Jan Sangh and. Swatantara Party.''In sub-para (c)(i) of para 13 it was alleged that "the suppor-ters of the returned candidate, Smt. Indira Gandhi, Shri Jagjivan Ram, Shri Fakhruddin Ali Ahn)ed, Shri Yunus Saleem, Dr~ ~ran Singh. Shri Dil).esh Singh, Shri Swaran Singh, Shri I. K. Gujral. Shri Satya Narain Sinha, Shri K. K. Shah and Shri Triguna Sen \\We a11 occupying high ministeriat positions in the Central Gov-

ernment and they misused these positions for furthering the pros-pects of the returned candidate by telephoning large number of electors from their ministeriJl telephones of the Government, open-ly telling them that it was matter of prestige and existence for them and that if the electors did not vote according to their wishes for Shri V. V. Giri, they would lose all their patronage and that if the electors voted as desired by them, they would receive aovernmental patronage at every step. So many electors were cal-kd by the above named Ministers at their official residences and offices in Delhi and undue influence was brought upon them by ordering them to vote for the returned candidate." It was further stated that the returned candidate, Shri V. V. Giri, sounded one of the Ministers mentioned above to influence the particular elec4 tors who were not found amenable to his own influence or persua-sion.

In para 13(c)(ii) reference was made to Shri Yunus Saleem, De,l)uty Law MinistJer, obtaining signatures of the members of Rajya Sabha on some paper which in effect amounted to pledging their support for Shri V. V. Giri, the returned candidate, and what happened in he Rajya Sabha in connection with that incident.

In sub-para 13(c)(iii) it is alleged that Shri Fakhruddin J.Ji Ahmed and Shri Yunus Saleem threatened the Muslim voters that Shri Sanjiva Reddy was in fact candidate of the Jan Sangh party and if he was f-leeted the fate of the Muslim community in India will be in danger and in constant threat of extinction. A!:.. in-stance was given when Shri Yunus Saleem met Shri Abdul Ghani DarJ petitioner, and talked to him in the same terms. Further, reference was made to letter issued by Shri Abdul Ghani Dar to all Muslim electors describing such threat as baseless and mis-chievous. In sub-para (iv) reference was made to letter written by Shri Abdul Ghani Dar to the press in this connection.

In paras 13(c)(v) and (vi) reference was made to threat issued to the ·members of the Legislative Assembly of Bengal that if Shri Sanjiva Reddy was elected he would enforce President's rule in Bengal, thus wiping off the United Front Government and the Legislative Assembly. Reference was made to news item ap-pearing in the papers on August 12, 1969, in this connection. We need not say anything more about this allegation because we refused to al!Qw evidence to be led on this jssue, as the allegations do not, even if accepted, amount to "undue influence."

In sub-para (vii) it was alleged that threat was issued to the Members of the Legislative Assembly of Andhra Pradesh that the Assembly would be dissolved if Shri Reddy was elected. By

order dated January 23, 1970, we refused to allow evi?ence to be taken on this point as the allegations do not, even if accepted, amount to "undue influence".

Some other allegations of undue influence. yrere made in th.e subsequent paras but we did not allow the petltiOn~rs to lead evi-B dence on those paras and they need not be mentioned.

The respondent, Shri V. V. Giri, in his reply first stated that "I propose to traverse the allegations directly m.ade against me and also the ininuations or innuendoes that anythmg was d~me at my instance or with my knowledge and consent or conmvance. I submit that I cannot traverse the allegations made against the Prime Minister or any other persorl as I do not have personal knowledge thereof." The respondent did not, however, admit any of the allegations or insinuations against such persons and it was submitted that the petitioners were put to strict proof of every one of them. The respondent denied the allegation in sub-para (i) of para 13(b) of the petition and said that "I was always appealing to the voters to exercise their vote according to their conscience and free will. I was, in fact, conducting my campaign single-handed." In roply to sub-para (iii) the respondent characterised the allegations as most reckless, wild and false and emphatically denied them. He stated that "nowhere or at no time was it ever aJleged within my knowledge that I or my supporters had anything to do with the publication or circulation of the alleged pamphlets."

In reply to sub-para (iv) of para 13(b) the respondent stated that he had nc- knowledge and did not admit any of the allegations made in that para and the petitioners were put to strict proof. r He also did not admit that Shri Yunus Saleem approached Shri Abdul Gnani Dar, as alleged.

In reply to sub-paras (v) and (vi) of para 13(b) the respondent denied that he had received any letter from Shri Abdul Ghani Dar. He stated that the only letter he received from Shri Abdul Ghani Dar was letter dated July 24, 1969, in reply to respondent's cir-cular letter to the electors seeking their support. He further denied that he ever received copy of the alleged pamphlet. He fur-ther stated : "I say that in fact I saw the letter of August 11 1969 of Shri Dar and the pamphlet attached as annexure to ~ Petition only after I received the copy of the Election Petition and the annexures. I ent!rely repud!ate that I had anything to do with the pamphlet before Its publication or after its publication. I also d~ny . that. any of my workers or supporters bad anything to do With It, With my knowledge or connivance."

In reply to sub-para (Viii) of para l3 (b) the respondent ~eni~d that pers?ns alleged to be his wor~ers and supporters were · dts: tributing the· pamphlet and were telling V'!ters not to vote for Shn · Reddy, as alleged. He characterised both these allegations as baseless and false. In reply' to sub-para (ix) he said that he was · not aware of the letter, Annexure A-39. In reply to sub-para · (x)· he said that this. matter was not relevant. In reply to sub-para (xi) it .was asserted that Shri Gupta's allegations were wild and baseless and the matter was irrelevant. In reply to sub-para (xii) . he had no submission to make except that the matter was irre· levant.· With reference to sub-para (xlii) of para 13(b) the respondent · .. denied that during his tour of various places mentioned in the said' · · -paragraph he stated in any well-guarded language or otherwiSe · · that Shri Reddy was not man of char~cte.r. He stated that . throughout his · statements he adhered to the stand he had taken · in his first statement of July 13, '1969, announcing his decisjon · · to stand as candidate for the office of the President. He also annexed copy of Press Statement issued on August 10, 1969, in which he reiterated the aforesaid stand. With reference to s~b-para. (i) of para 13(c) the respondent characterised the allegations as reckless, and irresponsible. The petitioner also denied that he sounded any Minister as alleged in . the sub-para. With reference to sub-paras (ii), (iii), (iv) and (v) of para 13(c) the respondent said that he had no personal knowledge but .. put the petitioners· to strict proof. · The respondent further replied to other paragraphs but noth~ . · .. · ing much turns on th~m. We may mention that at various places ·F the respondent alleged that the paras -were vague and no parti-.. , culars had been given. · . . I · .·· .. The resp~:md~nt ask~ for particulars on various points and . ~his Court directed particulars to be supplied. Particulars were · ~upplied regarding para 13(b)(xiii) and para 13(c)(i). We \\!ill , refer to the particulars whenever it is deemed necessary while· ap-. predating the evidence of the petitioners . .. . · We need not refer in detail to the allegations in Election Peti-tion No.· 4 which are substantially similar to those in Petition No. · 5. The Advocate-on-Record for Election Petition No. 4 and · Election Petition No. S was the same and common evidence was · · 100. in both the petitions and common arguments were addressed · : thereon.

From the pleadings ~nd the evidence led the main points which arise for our determination are :

(1) What is the true interpretation of s. 18 of the Act ?

(2) Was the pamphlet distributed by post to the electors?

(3) Was the pamphlet distributed in the Central Hall of Parliament '?

(4) Does the distribution of the pamphlet by post and or in the Central Hall constitute undue influence under s. 18 of the .Act?

(5) Was this pamphlet distributed with the connivance of the returned candidate?

(6) Whether the offence of undue infiuence was committed by others without his connivance, and if so, whether it had mate· rial effect on the result of the election ?

Let us first address ourselves to the question of interpretation of s. J 8. We have read the Yiews .expressed by Bhargava, J., and Mitter J., but with respect we differ from them. Bhargava, J., has held that the distribution of the pamphlet amount¢ to an oftcnce under s. 171G, I.P.C., and not under s. 171C, I.P.C. According to Mitter, J., distribution of the pamphlet by post and in the Central Hall does n\)t by itself fall within s. 18 of the Presidential and Vice-Presidential Election Act, 1952. Accord-ing to him, before any publication of defamatory matter relating to candidate can be treated as commission of the offence of undue influence there must be some overt act in addition to the mere publication-some attempt or persuasion of voter to res-~~-train the free choice of candidate before the law of undue in· .ftuence is attracted. In our opinion,. if distribution of the pamph· let by post to electors or in the Central Hall is proved it would constitute 'undue inftuence• within s. 18 and it is not necasary fo.r the petitioners to go further and prove that statements contained in the pamphlet wete made the subject of verbal appeal or per-suasion_.by one member of the electoral college to anotl1er and particularly to those in the Congress fold.

The Presidential arid Vice-Presidential Elections Act, 1952, was passed to regulate certain matters relating t<> or connected with electrons to the office~ lnt~r alia, of the President of India. Part Ill o~ the A~t deals with disputes regarding elections and s. 18 therer~ contame.d la~s down the g~unds for declaring the election of H'turned candrdate to he vord. Th~ relevant part of the: section pwvidcs :

''If the Supreme Court is of opinion :

(a) that the offence of bribery or undue influence,at the election has been committed by the returned can-didate or by an~person with the cvnnivance of there-turned candidate; or

(b) that the result of the election has been material-ly affected (i) by reason that the offence of bri_bery or undue influence at the election has been committed by any person who is neither the returned candidate nor person acting with his. connivance. . . . .

the Supreme Court shall decl~re the election of the re-turned candidate to be void/'

Under s. 18, therefore, the election has to be declared to be void .jf, amongst other things, undue influence has been committed (i) by the returned candidate himself, (ii) by person with his con· nivance,or (iii) by any wrson who is neither the returned candi· date nor one having actt;<t wtih his connivance, if the result of the election has been materially affected. S.ection 18(2) declares that for the purposes of this section the offences of bribery and undue inBuence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code.

We may here com~are the provisions of s. 18(1)(a) and s. 18(1)(b)(i) read with s. 18(2) with s. 123 of the Representation of the People Act, 1951. 'This section lays down corrupt practiCes for the purposes of that Act which include undue in.ftuence upon· proof of which an election ·has to be. set aside. Though undUe influence for purposes of that Act has ·the '\Same meaning as in the . present Act, that section does not go as far as s. 18 of the present Act so as to provide that even if it is committed by third party, that is to say, not an election agent nor person with the consent of the returned candidate, the election would still be declared to ·be void provided of course that it has been materially affected .bY such undue influence. From the fact that both these .ACU, were enacted by the same Legislature and Act 31 of 1952 wa-s passed after the Representation of the People Act was passed~ it is . clear that Parliament deliberately made s. 18 stricter than the Representation of the People Act, firstly, by using the words "con-nivance of the returned <;andidate" instead of the words "his· con-~erit'~. and secondly, by i~cluding undue influence committed even by stranger, having nothing to do with the returned candidate, as ground for declaring the election to be void, the only condi-tion in respe~t of such an act being that it should have materially affected t~e election. The object .of do~1g so is obvious, namely,. that Parl1ament wanfed to ensure that 1n respect of an election for the highest office in the realm the election should be comple· tely free from any improper . influence emanating even from

third party with whom the returned candidate had no connection and without any connivance on his part. The only limitation, as aforesaid, placed in s. 18 is that in such case it has to be established that the election was materially affected. The ques~ tions, therefore. which would arise under s. 18 would be : (1) Has the offence of undue influence been committed? (2) If so, was jt committed by the returned candidate or by person with his connivance '? and ( 3) even if the offence committed was by stranger and without the connivance of the returned candidate, ha• the committal of that offence by such "any person" materially affected the election ?Chapter IXA of the P~nal Code which deals with offences relating to elections was introduced in the Code by the Indian Eleciion Offences and Inquiries Act (XXXIX of 1920). Section 171A defines 'candidate' and 'electoral right'. An electoral right means the right of person to stand or not to stand as, or to withdraw from being •. candidate or to vote or refrain from voting at an election. Section 171 C, which deals with the offence of undue influence reads as under :

"(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral. right commits the offence of undue influence at an election.

( 2) Without prejudice to the generality of the pro-E visions of sub-section (1), whoever-

(a) threatens any candidate or voter, or any person in whom candidate or voter is interested, with injury of any k~nd, or ,

(b) induces or attempts to induce candidate or voter to believe that -he or any person in whom he is in~ terested will become or will be rendered. an object of Divine displeasure or of spiritual censure,

shaH be deemed to interfere with the free exercise of the electoral right of such candidate or voter within the ~]leaning of sub-section (1)." · '

Su~section (3) lays down that:

. "A_ declaration of public policy or promise of pub-!lc actiOn,_ or the me!e exercise of legal right without mtent to mterfere With an electoral right, shaH not be deemed to be interference within the meaning of this section."

section 1 71F provides for the penalty for the offence of undue influence which is either imprisonment upto one year or with fine or both. Section 171 provides : l-L30S Sup CJ/71

"Whoever with intent to affect the result of an elec-tion makes or publishes any statement purporting to be statement of fact which is false and which he either · knows or believes to be false or does not believe· to be true in relation to the personal character or conduct of any 'candidate shall be· punished with fine,"

The electoral right of an electQr, as defined in s. 171A(b) of the Indian Penal Code, means "the right of person to stand. or not to stand as, or to withdraw from· being, candidate or to vote or refrain from voting at an election." It was said that the right to vote envisages two stages; the first s(age is when the elec-tor goes through the mental process of weighing the merits and demerits of the candidates and then making- his choice and the second stage is when having made his choice he goes ~o cast his vute in favour of the candidate of his choice. The argument was that the language of s. 1 71 suggests that undue influence comes in at the second and not at the first stage. and therefore, it can only be by way of some act which impedes or obst1 ucts the elec-tor in his freely casting the vote, and not in any act which pre-cedes the second stage, i.e., during the stage w1;ten he is making . his choice of the candidate whom he would support. Tbis argu-ment was sought to be buttressed by the fact that canvassing is ~rmissible during the first stage, and therefore, the interference or attempted interference contemplated by s. 171 can only be that which is .commit~ed at the stage when the elector exercises his·right, i.e., after he has made up his mind to Vote for his'chosen candidate or to refrain from voting. It was further argued that the words Used in s. 171 were "the free exercise of vote" and not "exercise of free vote." The use of those words shows that canvassing or propaganda, however, virulent, for or against "'a candidate would not amount to undue influence, and that undue influence can only mean some act by way of threat or fear of some. adverse consequence administered at the tim~ of casting the vote.We do not think that the Legislature,- while framing Ch. IXA of the Code ever contemplated such dichotomy or intended to give such narrow meaning to the freedom· of franchise essential in representa~ive system of government. In our opinion the argume~t mentioned ~bove is fallacious. It completely disregards the struclure and the' provi~ons of s. 171 C. Section 171 is enacted in three oarts. The:jirst sub-section contains the defini-tion of "undue 'influence ~·~ This is in wide terms and renders person voluntarily interfering or attempting to interfere with the free exercise of any eleetqr~l right guilty of committing undue influence. That this. is very~~~ !nd!cated by the ope_!ling sen-tence of sub-s. (2), r.e. "wtt~•r.-Jwhce to the generaltty of the

provisions of sub-sectio~ (1)." I~ is ~ell-settlled .~at whoa tilis expression is used anythmg contamed m the proviS'J.ODS .foUowtag this expression is not intended to cut down the gqperabty of tile meaning of the precedi~g provision. This w~. so held by the Privy Council in King-Emperor v. Sibnath Baner}r([1 ]).

It follows from this that we have to look at sub-s. (1) as it is without restriCting its provisions by what is contained in sub-s.(2). Sub-s.(3) throws great deal of light on this question. It pro-ceeds on the assumption t:bat declara~ion of public policy or promise of public action or ~e mere exercise ~ lega! right ~ interfere with an electoral nght, and therefore 1t provides that If there is no intention to interfere with the electoral right it shaH. not be deemed to be interference within the meaning of this sec-tion. At what stage would declaration of public policy or promise of public action act and tend to in·4erfere ? Surely only at the stage when voter is trying to make up his min~ as to which candidate he would support. If declaration of public policy or promise of public action appeals to him, his mind would decide. in favour of the r.andidate who is propounding the public policy or promising public action. Having made up his mind he would then go and vote and the declaration of public policy having had its effect it would no longer have any effect on the physical final , act of casting his vote.

Sub-section (3) further proceeds on the basis that the expres-sion .. free exercise of his electoral right" does not mean that voter is not to be inftuenced. This expression has to be read in the context of an election in democratic society and the candi· dates and their supporters must naturally be allowed to canvass support by all legal and legitimate means. They may propound their programmes, policies and views on various questions ·which . , are exercising the minds of the electors. This exercise of the right by candidate or his supporters to canvass support does not inter-fere or attempt to interfere with the free exercise of the electoral right. What does, however, attempt to interfere with the free exercise of an electoral right is, if we may use the expression, "tyranny over the mind". If the contention of the respondent is to be acceD'ted, it would be quite legitimate on the part of can-G didate or his supporter to hypnotise voter and then send him to vote. At the stage of casting his ba Hot paper there would be no pressure cast on him becaus~ his mind has already been made up for him by the hypnotiser ..

It ·was put Jike this in book on EJections :

"The freedom of election is two-fold; (1) freedom in _the-exercise of judgment. Every voter should be free (1) [194.5] F.C.R. 195.

to_-exercise his OW!l judgmem, in selecting the cand~~ date he believes to be best fitte4 to represent the constl-·tuency; (2) Freedom to go a_nd have the means of going· . to the poll to give his vote without fear or intimidation." e) & (2)

We are supported in this view by the statement of Object!> and Reasons attached· to the bill which .ultimately resulted in the enact-ment of Chapter IXA. That ~tatement explains in clear language that undue influence was intended to mean voluntary interference or attempted interference with the right of any person to stand or not to stand as or -withdraw from being candidate or to vot~ or refrain from voting,.· and that the definition covers aU threats of injury to person nr property and all illegal methods oj persua-sion, and ;any interfeFence with the liberty of the candidates or the electors. · "The legislature has wisely refrained from defining the forms interference may take. The ingenuity of the human mjnd is unlimited and perforce the· nature of interference must also be unlimited".'' (1) & e).

.From reading of s. 171 it is clear that in pursuit ot purity of elections the legislature frowned upon attempts to_ assail such purity by means of false statements relating to the personal cha-racter and conduct of candidate and made such acts punishable thereunder. But the fact that making of such false statement is distinct offence under s. 171 does not and cannot mean that it cannot take· the graver form of undue influence punishable under s. 1.71 F. The false statement may he of such vtrulent, vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their being affected. or attempted to be affected by the maker or the publisher of such statement. Therefore, it is the degree of gra-vity of the allegation which will be the determining factor in de-ciding whether it falls under s. 17.1 or s. 171 G. If the allega-tion, though false and relating to candidate's personal charac'kr or conduct, made w_ith the intent to affect the result of an election. does not amount to interference or attempt at such int~rference. the offence would be the lesser one. If, on the other hand. it amounts to interference or an attempt to interfere it would be the graver offence under s. 171 read with s. 171C.

We are also supported in our vie\v by number of decisions given on similar statutory provisions. The Government of India (Provincial Elections) Corrupt Practices and Election Petitions

- 0)- Law· and Prac;ice of Elections & Election Petitions-Nanak ('hand-1937 -Ed. p. 36_ .

. (2) Law of Elections and Election Petitions-- Nanak Cfland-1958 Ed. p. 263.

Order, 19-36, contains the following relevant provisions. The ex-pression "electoral right" was defined in the same manner as in s. 171 A(b) of the Indian Penal Code. "Corrupt practice" in rela-tion to an election by the members of Provincial Legislative Assembly to fill seats in Provincial Legi~lative Council, means one of the practices specified in Parts I and II of •. he First Schedule to this Order. ·~undue influence" was defined in clause 2 of the First Schedule to mean "any direct or indirect interference or attempt to interfere on the part of candidate or his agent, or of any o'ther person with the connivance of the candidate or his agent with the free exercise of any electoral right, provided that-

(a) -without prejudice t9 the generality of the provi-c sions of this paragraph, any such person as is referred to therein who : ·

(i) threa~ens any candidate or elector, or any per-son in whom candidate or elector is interested, with any injury of any kind; or

(ii) induces or attempts to induce candidate or elector to b~Jieve that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual cen· sure,

shall be deemed to interfere with the free exercise of th~ electoral right of that candidate or elector within the maning of this paragraph:

(b) declaration of public policy, or promise of P.ub!ic .action •. or the mere exercise cif legal nght w•thout mtent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this paragraph.''

Paragraph 5 of the First Schedule is similar to s. l71 and reads as follows:

"The publicatio~ by candidate or his agent, or by any other person w1th the connivance of the candidate or his agent, of any statement ct fact which is false and which he either believes to be false or does not b~lieve to l:>e true, in relation to the personal character or con-H duct of any candidate, or in relation to the candidature or .withdrawal of any candidate, being statement reason-ab y ca'culated to prejudice the prospects of that candidate's election."

!"J Li7! J 2 S.C. k.

{.hese provi;io~s were .the su~ject-nnller of decision by the Elcc-Jon Tnbunal m mntsar Cay ( Mahammndc111) Comtituenc,· Case No. 2 ( 1 ). It was observed <ts foilows : '

Comtituenc,· '

. ''.It is true that the definition of undue intlucnce i~ w1dely worded and covers all kinds of fraudulent acts ?r ~~~!iss~on~ which in any w.ay, directly or iHdirectly, mte1 ~·· ~re w1th the free exerc1se of any electnr<ll rioht and 11 1~ als~ tr;.~e that the detlnition extends not l)nly to actual mtertcrence but even to an attempi to inter-ference.''

But on the facts the Tribunal observed :

"There is no .proper .. idence of actual interference before us, and as regards the attempt, we have to s~e if there wa.• the deliberate intent to mislead voters and thus make them exercise their electoral right under the wrong impression that the respondent had been set up as candidate by the Muslim League."

It was argued before the Commission that threat or element of compJJlsion was clfl essential ingredient of the corrupt practice ci undue influence. The Commission observed :

"We cannot, however. find any basis in the definition of "undue influence'' for the proposition that unless M. Zaffar Ali· Khan threatened, or compelled the voters to vote in particular manner, the offence of "undue influence'' was not complete. The definition of "undue influence" is very wide- in its terms ·and ·includes four different forms of interference viz., direr.t interference, indirect interference, direct attempt to interfere and indirect attempt to interfere, and it is nowhere laid down that such interference or attempt to interfere should be by the method of compulsion .... although we are pre-pared to concede that the inducement must be of such ·powerful type as would leave no free will to the voter in the exercise of his choice. There would, of course, be in such case mental compulsion in sense but it is not necessary that there should be physical compulsion or that threat must be actually held out by the person 'L. who interferes or attempts to interfere." ( p. 160) Jujhar Singh v. Bhairon Lall(2) the petitioner was was Ram Rajiya Parishad candidate, and the ~espondent, Bhairon Lall, n It .was .was alleged that poster was

In Jujhar Singh v. Bhairon Lall(2) the petitioner was was Ram Rajiya Parishad candidate, and the ~espondent, Bhairon Lall, fought on the Congress ticket. It .was .was alleged that poster was

(1) The Indi'!ln Election Cases (193~·1950)-Doabia-Vol. H, 150-157.

(2) 7 E.L.R. 457, 461.

published against ~e Ram R~ji~a Parishad and Jagirdars and ~is constituted undue mfluence w1thm s. 123(2) of the Representation of People Act, 1951. It was held that the publication of the poster constituted undue influence. The Commission observed :

"It may be observed that an attempt to interfere by the method of compulsion is not necessary and that even the method of inducement may be sufficient, provided it be of such powerful type as would leave no tfree will to the voter in the exercise of his choice. In other words, actual physical compulsion is not necessary, but, positive mental compulsion may be enovgh to give rise to an undue influence. For the reasons which we shall presently give, we read this sort of mental compulsion in the poster, and, therefore, hold that it falls within the purview of undue influence."

The slogan of the poster was described thus :

"Vote for Congress in order to put an end to the atrocities of the Jagirdars. On the .loft-hand side, person-apparently tenant-is' shown tied up to tree with rope. On the right, there is well dressed Jagirdar asking his man, who is seen waving whip, to flog the tenant. Evidently, the tenant's wife, who has apparently attempted to intervene, has been thrown down prostrate on the ground. To the right hand side of .the picture, there is symbol of 'two bullocks with yoke on•, and near about the slit there are the hands of so many voters, male and female; attempting to cast their votes in the ballot box.'' · In Radhakanta Mishra v. NityaMnda Mahapatra(l) there was difference of opinion whether the respondent and his agent had ' committed corrupt practice of undue influence by publishing booklet entitled ''why should you vote for me" where the picture of dead body with the objectionable caption appeared, and it was stated that the individual had died of police firing and that the eongress had killed him. Barman, J., held that it constituted undue influence while Rao, J., held that it did not. There being difference·of opinion, the case went to Das, J., who held that it did not amount to uridue influence. Das, J ., observed regarding s. 123(2) of the Representation of' People Act that "there may be some elemC?nt of mental compulsion, but not necessarily phy-sical one or threat actually held out by the person who interferes or attempts to interfere." We are not concerned with the question whether the booklet in that case constituted undue influence or ~t but only with the interpretation of the section. Barman, J.,

(I) 19 E.L.R. 203.

observed : "A voter must be able to freely exercise his electoral 4 tight. He must be free agent. All ir.Jluences are not necessarily undue or unlawful. Legitimate exercise of influence by political ·party or association,. or even an individual should not be confused with undue influence. Persuasion may be quite legiti-mate and may be fairly pressed on the voters. On the other hand, pressure of whatever character, whether acting on the fears, threat, etc., if so exercised as .to overpower the volition withouf . convincing the judgment is species of restraint which interferes · with the free exercise of electoral right .... It is pot necessary to establish that actual violence had been used or even threatened. Methods a.f inducement which are so powerful as to leave no free will to the voter in the exercise of his choice may amount to undue influence. Imagipary terror may have been {;reated sufficient to deprive him of free agency."

The scope of s. 171C, I.P.C.; was considered in recent deci4 sion of. this Court in Baburao Patel v. Dr. Zakir Hussain,(l). Wanchoo, C.J., speaking for the Court observed:

"It wiH be seen from the above definition that the gist of undue inftuence at an election consists in volun-tary interference or attempt at interfer~nce with the lree exercise of 21ny electoral right. Any voluntary action which interferes with or -attempts to interfere with such free exercise of electoral right would amount to undue influence. But even though the definition in sub-s. ( 1) of s. 171 is wide in terms it cannot take in· mere can-vassing in favour: of candidate at an election. If that were so, it would be impossible to run democratic elec-tions. Further sub-s. (2) of s. 171C shows what the nature of undue infiuence is though of course -it does not cut down the generality of the provisions contained in sub-section· (1). Where any threat is held out to any candidate or voter or any. person in whom candi-date or voter is interested alld the threat is of injury ct any kind, that would amollillt :.o voluntary interference or attempt at interference with the free exercise of elec-toral right and would be undue influence. Again where person induces or attempts to induce candidate, or voter to believe that he or any person in whom he is interested will become or will be rendered a:n object of Divine displeasure or of spiritual censure, that would also amount to voluntary interference with the free exer-cise of the electoral right and would be undue influence

(l) [1968) 2 S.C.R. 133, 145.

What is contained in sub-s. (2) o.f s. 171{: is merely illustrative. It is difficult to lay down in. general term~ where mere canvassing ends and interference or attempt at interference with the free exercise of any ·electoral right begin5'. -That is matter to be determined in each case; but there can be no doubt that if what is done is merely canvassing it would not be undue influence. As sub-section ( 3) of s. 171 shows, the mere exercise of legal right without intent to interfere with an electoral right would not be undue influence."

It is not necessary to consider the provisions of the Indiun· Contract Act t1r the English Law on the subject because we have· ~pecial definition given by Purliamont

The question that then arises is : Whether the publication of this pamphlet can be said to co'nstitute undue influence 'J We-have no doubt that it does ~a!l within that definition. It is not nece~sary to reproduce the pamphlet in detail as we shall only be· giving further publicity to this most objectionabie pamphlet. The pamphlet. after giving various fictitious incidents of ·sexuai immo-rality. describes Shri N. Sanjiva Reddy debauch without any sense of shame or morality . Then the pamphlet asks ; "Should the name of the Congress be lowered to such depths that thi.,. r ,oral leper, this depraved man should be st:t up as the- Cvngress candidate for the highest post?" It further adds : "A senior Congress MP has expressed the fear : If Sanjiva Reddy becomes PrcsiL1cnt he will turn Rashtr::tpati Bhavan into harem, centre of vice a:11.d immorality."

It seems to us that these allegations are covered under s. 171-C. even if they may be covered under s. 1.71G. But we are not concerned with s. 171G because that section has not been made ~round for setting aside an election. We are only concerned with s. 171C. Be that as it may, we cannot add another sub-section to s. 171C, as follows : "A false statement of fact in relation to the personal character or conduct of any candidate even if made with the intention of interfering with the electoral right sh-::~ll not be deemed to be interference within the meanin2: ~.f this section." ·

lt was said th~t this pamphlet cannot come under s. 171 becau~e it was issued anonymously and. therefore, it was not likely t.J interfere with · the choice of the electorate partichlarly ·as the electorate consi_sted only of members of Parliament and -Members of State Legislatures. But, in our opinion. this argument is falla-cious. First. this has no relevance to the question whether any attempt to interfere with the electoral ri~ht has been made or not.

. .Secondly, series of ancnymous attempts in country like ours would have as :much, ~f not more, effect as one open pov;erful .attempt. It would !Je dangerous to provide sanctuary to ailony-mous attempts. Thzrdly, on the facts of this case, can we sa,r that the distribution in the Central Hall is the same thing as anonymous publication? If member of Parliament distributes pamphlet, is he not identifying himself with it unless he expressly disasso:iates .himself from. the pamphlet? It seems to us that the distribution in the Cent,a! Hall by members of Parliament has the same effect .:as if they had endorsed the pamphlet in writing.

We are accordingly of the opinion that distribution of the pamphlet by post as also distribution in the Central Hall con!:titut-..e4 an attempt to interfere with the·free exercise of the right to vote within s. 18 of the Act.

We must first mention that both the parties l~d extensiv~ evid-·ence to prove the genesis of the dispute between the Con~ress ·party led by Shri Jagjivan Ram and the Con&ress party lc:d by Shri · Nijalingappa. We were told about the proceeding~ c,f the Faridabad session and the Bangalore Session, ·and the circumstances :attending Shri Morarji Desai's resignation. I:urther, ·the whole ,of the correspondence between the Prime Minister and Shri Nija-1ingappa, and between Shri Jagjivan Ram. and Shri Fakh1'1Jddin Ali Ahmed and Shri Nijali:ngappa between August 9 and August 18 was exhibited 'in the case. But as it is not necessary for us to ·determine the exact genesis of the dispute we will only take note ·of the· .~act' that both the congress parties were opposed to each -other at the time of the election and had different views on tt!ttain economic issues, and the Preside~tial election became -a vital issue between them. In view of the above we will have to judie the ·evidence given by the witnesses with care, and wherever possible ·seek corroboration of the evidence from circumstances or other independent evidence.

We mflv now deal with the question whether it is possible to find out who printed or published the pamphlet and whether it was distributed by post and/or in the Central Hall of Parliament. "Regardincz the authorship of the pamphlet no evidence has been led by the petitioners but it was contended on their behalf that if the pamphlet is closely scru~inised · there are indications in the pamphlet that it is the work of some congressmen belonging to that party o,f the Congress which is now led by Shri Jagjivan. Ram. Although this argument appears to be attractive. we cannot come 1o the conclusion that it was the work of the members of. any -particular party. The fact that certain witnesses have admitted 1hat the first part of the pamph~et represents their ideology lead5 us nowhere because .it would not be difficult for other persons to

reproduce their ideology in words. Their ideology is welt-known and they are not averse to expoundi·ng it in great detail. a~ was done before us. But as we have already said, we cannot hold that it is the work of members belonging to any particular p~.)litical party ..

Regardmg the distribution by post there is overwhelming evid-8 ence that the pamphlet was widely distributed by post. Part of it will be referred to when dealmg with the question of distrioution of the pamphlet in the Central Hall. Even the Prime Minister. Smt. Indira Gandhi, received copy of it, as is cleat from her letter-Ext. P. 85-dated August 21, 1969, to Shri Madhu Limaye. M.P., in reply to his letter dated August 13. 196Q. In this letter she. inter alia, wrote :

·'The leaftet came to rne by post and I immediately asked the Home Ministry to institute an inquiry as to the source so that necessary action c0uld be considered.

This was before I received your letter."

No evidence was led by either side as to whether such an inquiry was made, and if so, 'whether the authorship of th'! pamphlet was {ound out.· We may mention that Mr. Daphtflry. the learned counsel for the respondent. did not argue the que·;tion about the distribution by post and admitted th&t distributbn of the pomphlet by post had taken place.

The!" we come to the ques•ion ol distribution of the pumphll!t in the Central Hall. On this p~int the evidence i:; extremely Clln-fticting. Shri K'8nwarlul Gunta, M.P., P.W. 11. stated that he saw the pamphlet bein~ dis•ributed in the Central Hall of Parlia-ment by some members; one was Shri Yunus Saleem and the other was Shri Shsshi Bhushan. He said that he was definite about these two members. He further stated that he did not recei'le it in Parliament but some other members did Jlnd it was being op~nly distributed. In cross-examination he stated that Shri Yunu~ Saleem gave it to two or three people; he came and gave one pamphlet to ea~h. Shri Gupta produced copy of letter dated August 14; 1969. which he. had written to the Chief Election Commissioner ir. this connection. In this letter-Ext. P 37-· it is. inter alia, stated :

"Moreover, vamphlets are belng distributed in which vul~ar charges have been levelled against a:nother candi-date for this hi~h office. Character assasination is going on. I am 8endin£ copy of the pamphlet in which vul~·ar and filthy -attacks have been made a~ainst Shri N. Saniiva Reddy. This amounts to cor.ruot practice under the EJection Law .• These pamphlets are being distdbuted

[!971] 2 S.C.R.

by the supporters of the Prime·Minister. Shri M . .Yun,us

Saleem, Minister in her Cabinet and some others att! very active in it." (emphasis supplied)

The Chief Election Commissioner acknowledged this letter by his d.o. letter-Ext. P 16-dated August 14, 1969. This letter certainly corroborates Shri Kanwar Lal Gupta's statement that Shri Yunus Saleem was distributingrthis pamphlet but it would be noted that in the letter to the Election Commissioner there is no mention of the Central Hall of Parliament. We· will discuss this letter in detail· little later.

Smt. Jayabehn Shah, M.P., P.W. 25, deposed that she saw this . pamphlet belng distributed in the Central Hall and she saw Shri Shashi Bhushan, M.P., distributing it, although she did not rl!ceive it personally ,from him. We may mention that she belongs to the Congress Party headed by Shri · Nijalingappa.

Shri Nanubhai Nichhabhai Patel, M.P:, P .. W. 26, deposed that he saw the pamphlet in the~central Hall of Parliament about the 12th ·or 13th of August and Shri Yunus Saleem, Shri Shashi Bhushan and Shri Chandra Shekhar were distributing. the. pam-· ph let; they came to give him this pamphlet but he told them : "Yes, 1 have received it in my fiat." In answer to the question "what did. they tell you" he stateci :

''They asked me whether l had gone through this pamphlet thoroughly. I said, "Yes": Then they tol~ me "Be careful and before voting you consider all these facts."

In answer to the question "who to!d you" he replied: ''Mr. Saleem.'' In c~oss-examination\ ~e said. that he had no~ told the petit.ioners or etther of them, Shri Rama Reddy or Shn Abdul Ghan1 Dar, that the pamphlet w,as distributed by Shri Jagat Narain, Shri Mohan Dharia or by Shri Yunus Saleem. This question_ was put in cross-examination in view of the particulars supp1ied by Shri Abdul Ghani Dar, petitioner, that Shri . Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, S!1ri Shashi Bhushan and Shri Mohan Dharia had distributed the pamphlet. inter alia, to Shri N. N. Patel, M.P .. Shri Abdul Ghani Dar had verified that this was on the information received from the member of Parliament mention-ed as recipient of the pamphlet. ·

The learned counsel for the respondent, Mr. Daphtary, had at various times asked questions in cross-examination from the peti-tioners' witnesses in order to elicit the information they gave to. Shri Abdul GhaniDar or Shri Sri Rama Reddy with view to show that the particular" aml the evidence in most cases are in conflict. He says that we should draw an inference against the evidence of

these. w:tnesses wherever there is conflict between what is stated in the particulars and what is ultimately stated in the evidence. In this particular case it appears that some particulars were given by gyess w.ork rather than by ascertaining from the witnesses: We cannot, however, disbelieve witnesses only because the particulars are at variance with their evidence. But we will bear the fact in mind while appreciating their ev_idence.

Shri Mohan Lal Gautam, M.P., P.W. 27, stated that he had received copy of this pamphlet in the Central Hall of Parliament from Shri Shashi Shushan and he saw it being distributed to other members also. In cross.examination it was put to him that his impression .that Shri Shashi Bhu~han gave it to him was not correct and he replied : "My recollection is quite correct because I came here on the 14th August and I had only one day here-15th was holiday and 16th was polling day, so there cannot be any confu-sion.'' We may mention that he was elected on the 13 of August. 1969, to the Rajya Sabha and took oath on August 14, 1969. Shri C. D. Pande, M.P., P.W. 29, is one of the petitioners in Election Petition No. 4. He deposed that when he was sitting in the Central Hall he saw the pamphlet being distributed by certain members; he could recollect two or three and he recollected Shri Shashi Bhushan, Shri Krishna Kant and Shri Yunus Saleem. although they did not give him copy of the pamphlet. In cross-examination he stuck to the position and said that they did not give the pamphlet to him because "they were giving to such persons who-·they thought fit, because I was too patent not to ac,:cept it.'' In answer to the suggestion that "loyalty was too obvious" he said ''yes". He was cross-examined in regard to the particulars a~d he said that he never told Shri Sri Rama Reddy that the pamphlet was given to him in the Central Hall of Parliament by Shri Jagjivan Ram and 11 other M.Ps. He also denied that he told Shri Sri Rama Reddy that the pamphlet was given to him on the 11th of August in the Central Hall by Shri Mohan Dharia and Shri Chandra Shekhar. In the particulars supplied by Shri Sri Ram Reddy it is stated that one of the persons who was given the said pamphlet in the Central Hall of Parliament was Shri C. D. Pande. Shri D. N. Deb, M.P., P.W. 30, belonging to the Swatantra Party, deposed that the pamphlet was being ·distributed in the Central Hall by Shri Shashi Bhushan and some others who were in general called 'Young Turks', and Shri Shashi Bhushan gave him copy. He said tha! the pamphlet was distributed openly in the Central HalL He denied in cross-examination that he to(d· Shri Sri Rama Reddy that Shri J agiivan Ram and 11 others gave him copy of the pamphlet. In the particulars supplied by Shri Abdu1 Ghani Dar it is stated that .he is one of the persons who was given copy of the pamphlet in the Central Hall. This is rather

strange because he stated in cross-examination that although he met Shri Abdul Ghani Dar, it was not he but Shri Sri Rama Reddy who Hsk~:d him to give evidence. He does not say that he told Shfi Abdul Chani Dar nnything jn particu:ar.

Shri HuY:an·. Chand Kachwai, M.P., P.W. 32, pclonging to the Jan Sangh p:..~ty, deposed that Shri Shashi Bhushan and Shri Jagjivan Rar11 g<wc (he p:imphlet to him in the Central Hall. He further said that "Mr. Shashi Shushan told me that Mr. Giri was the supportep of the labour rutd I should support him and the other thing 1JU:tl he told me was that Mr. ,Sanjiva Reddy was character-Jc.t;s person and the description of his character is in this pamphlet which I can see." He said that he received this pamphlet in the Central .Hall on the 12th of August. ln cross-examination he deposed that Shri Shashi Bhushan came alone and gave him the pa'mphlet and further that Shri Jagjivan Ram had also given him similar pamphlet but that was on August 13, 1969. He further stated that he went with the. pamphlet to his leader, Shri Atal Behari Ba.ipai, although he did not ask Shri Bajpai w~ether what was stated in the pamphlet was true. He further satd in cross-examination that he did not meet Shri Abdu.l Ghani Dar or Shri Sri Rama Reddy.Sm1. Pushpabehn Mehta, M.P., P.W. 36, stated that some members including Shri Shashi Bhushan, were distributing the pamphlet in the Central Hall of the Parliament and they were discussing. She stated in cross-examination that she did not report to the Security Officer. In cross-examination she stuck to her position that Shri Shashi Bhushan and Shri Krishan Kant were distributin~ the pamphlet. She had not talked to Shri Sri Rama Reddy or Shri Abdul Ghani Dar or anv other person on their behalf before giving evidence. She stated that there were many persons in the Central Hall and they were sittin.l! in groups and distributing, but she did not l!Jention Shri Jagjivan Ram's name in particu1nr. In the particulars supplied by Shri~Abdul Ghani Dar it was stated that she received the pamphlet in the Central I:lall of Parliament and Shri Krishan Kant, Shri Chandra Shekhar, Shri Ja~at Narain. Shri Shashi Bhushan and Shri Mohan Dharia distributed the pamphlet among others to this witness.

Shri Patil Puttappa, M.P., P.W. 50, said that Shri Yunus Saleem was distributing the pamphlet among the members in the Central Hall of Parliament and he gave him one copy. He says that he talked to Shri Saleem and told him that he was 1not doing the right thing. and Shri Saleem replied : ·"It is none of your business." Later on Shri Puttappa said that he saw Shri Krishan Kant.-.Shri Chandra Shekhar. Shri Shashi Bhushan and Shri Mohan Dharia also distributin~ the pamphlet in the Central Hall. He did not complain to_ the Watch and Ward Officer or to the Deputy Speaker,

Shri Khadilkar, and the reason he gave was : "Since I had earlier -come to know that Mr. Kanwarlal Gupta had earlier complained to the Election Commissioner and the Deputy Speaker of the House -Lok Sabha." He stuck to hls position in cross-examination. He further 3tated that neither Shri Abdul Ghani Dar nor anybody on his behalf asked him to come and give evidence and that if Shri Dar said on oath that he had given information relating to this, that ·w<JUid be false. He added that till he stepped into the witness box nobody had asked him as to what evidence he was going to give. In the particulars given by Shri Abdul Ghani Dar the only reference to this witness is in connection with the alleged distribution of the pamphlet on August 9, 1969, by Shri Shashi Bhushan, and Shri Krishan Kant, to him at 134, North Avenue~ New Delhi. We may mention that in his evidence he does state· that he received one pamphlet by post at his residence but he does. not say that Shri Shashi Bhushan and Shri Krishan Kant personally distributed it.

Shri Sher ~han, M.P., P.W. 51, stated that he r~ceived the pamphlet in the Central Hall and three or four persons, Shri Shashi Shushan, Shri Krishan Kant, Shri Jagat Narain and two or three other persons gave the pamphlet to him and they were· distributing it openly, In cross-exammation he stated that before coming to give evidence in Court he did not have conversation with Shri Abdul Ghani Dar or anyone about what he was going ·to depose in the Court. In the particulars it is stated that he received the pamphlet in the Central Hall Qf Parliament, a:tMl Shri Krishan Kant, Shri Cha·ndra Shekhar, Shri lagat Narain, Shri Sha-;hi Bhushan and Shri Mahan Dharia had distributed the pamphlet, among others, to this witness.Shri C. M. Kedaria, M.P., P.W. 53, deposed that Shri Shashi" r Bhushan gave the pamphlet to him in the Central Hall of Parlia-ment and the Young Turks were distributing the pamphlet. Among the Young Turks he named Shri Mohan ·nharia, Shri "Krishan Kant, Shri Arjun Arora, Shri Shashi Bhushan, Shri Chandra Shekhar and others. It was brought out in cross-examination that he was one of the signatories to letter, appearing in th;! issue of National Herald dated August 14, 1969-Ext. R-7-written to the Congress President on August 13. 1969, demanding lppro-priate action against those who did not respect the party mar..date in regard to the Presidential election. He S~ilted that there was no point in complaining about the distribution of the pamohlet in the Central Hall because responsible persons were distributing it. Hik name appears .in the particulars as one of the persons who had received the pamphlet in the Central Hall of Parliament and that Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat - Narain, Shri Shashi Bhushan and Shri Mohan Dharia distributed the pamphlet to him. among others ..

Shri N. Sri Rama Reddy, M.P., P.W. 54, one of tbe petitioners, .says that he received the pamphlet both in the Central Hall as well .as iQ his house and this pamphlet was being distributed in the Central Hall from 11th to 15th August. He received it in the ,central Hall either on the 12th or on the 15th and received it from Shri Yunus Saleem and Shri Shashi Bhushan who were together. He .further stated that from 11th to 15th August he saw Sltri Yunus Saleem, Shri Shashi Bhushan, Shri Krishan Kant, Shri S. M. Banerjee, Maulana lshaq, Shri Chandra Shekhar and Shri Mohan Dharia distributing the pamphlet. He did not complain to the Watch and Ward Officers because he could never imagine that "subordinate men should be my authortiy to complam to. It never struck me once." Then he said that he had complnined to the Deputy Chnirmnn, who was presiding, that Shl'i Yunus .Saleem was carrying on these nefarious activities in the house, and then Shri Yunus Saleem ran away. It seems to us that he is mis-taken that his complaint to the' Deputy Chairman was about the pamphl~.t. From the prodedings of the House it appears th:.~t his .complaint was r~garding signature campaign which is alleged to have been carried on by'Sh,ri Yunus Saleem. ln the cross-exami-nation he said that Shri Chandra Shekhar and Shri Mohan Dharia distributed the pamphlet only on one day, may be on th~ 14th or 15th August.

We have outlined the evidence of 12 members of Parliament .above. They all deposed that Shri Shashi Bhushan, among other=>. either gave them the pamphlet in the Central Hall or the;:y saw :him distributing the pamphlet in the Central Hlll to others.

Shri Shashi Shushan. M.P .. R.W. 38, in his evidence strongly denied the allegations against him; however he admitted that he .received the pamphlet at his residence by post. He said that the evidence was totally false and the reason he gave why Shri Kanwar Lal Gupta made the statement was, in brief, that the Jan Sangh party of India was very much angry with the witness. He gave the history of the enmity \vhich we need not set out in detail here. He said that looking to the relationship of the Jan Sangh and the ·witness, if Shri Gupta said so he was not surprised. He said that ·"there is many times conflict with him even in the House. Over there several times he levelled personal charge agajnst me. 1 also spoke against .his brother in the House." Regarding Smt. Jayabeh:J. 'Shah's evidence he said that she deposed wrongly because of political motives. He gave the political reasons in his ·evidence, one reason being that Smt. Jayabehn was member of the Bir!a ··rob by which was very strong in Parliament and which opposed him strongly i11 connection with the hunger strike he un~ertook at the Birla Bhavan in 1968. Regarding ·Shri N. N. Patel, Shri Shashi 'Bhushan said that he did not know him and his evidence was :incorrect. He said : "When I don't know him how can he talk

S. K. SIN(;H v. SHill V. V, GIRl (Sikri, J.) .~.~~

to me.'' Regarding Shri Mohan Lal Gautam he said that ~s evidence was wrong and he was member of the Congress Synd1 .. cate and that was the reason why he deposed against the witness. Regarding the evidence of Shri Pande, the reason he gave was that at the tiine of the hunger strike at Birla House Shri C. D. Pande moved about in the Parliament House Central Hall with 'flag' on behalf of Birlas whose 'flag', symbolically speaking, was per: mitted in the Parliament. He characterised the statement of Shr1 N. N. Patel about the distribution of the pamphlet as being without any basis and the statement of Shri D. N. Deb as quite wrong. According to him, Shri D. N. Deb spoke falsely. against him because he (Shrj Deb) was prince (Raja) and lhe witness had said several times in Parliament that those who presented the freedom of India on golden dishes to the Britishers had no right to take the pension as well as engage in politics. The witness further said that Shri Hukam Chand Kachwai had wrongly deposed about the giving of the pamphlet and about the witness talking with him. According to the witness the reason why Shri K.achwai gave this false statement was that he (Shri Kachwai) "belongs to Jan Sangh party. He has come from R.S.S. The R.S._S. believes in Evil Policy (Kootniti)." Regarding the evidence of Smt. Pushpa~hn Mehta, the witness said that she deposed falsely nnd the reuon he gave was : "I am sorry that such an old woman can tell lie. She may not be able to recognize me. One has to do everythiag in po1it1cs." Then the witness added that she belongs to the Syndicate Congress. Regarding Shri Patil P\lttappa the,· witness said that he even did not recognize him and .he could not give the reason why he gave the evidence falsely agaiqst· him. He characterised the evidence of both Shri Sber Khan and Shri C. M. Kedaria as false. He attributed Shri Kedaria's statement to the fact that Shri Kedaria ''is one of the principal disciples of · Mr. Morarji Desai. Everyone knows the relations Mr. Morarji Desai and I have. It is the effect of it. He is member of the Syndicate." The witness described his relations with· Shri Morarji Desai thus : "I have always taken Morarji Desai as an opponent of socialism., supporter of the capitalists." The witness further said that the statement of Shri Sri Rama Reddy that he . and ~ Yunus Saleem were together at the time and Shri Ytm.~ ~Ill gave this pamphlet to Shri Rama Reddy was wrong. He said that Shri Rama Reddy was unhappy with him over the hunger strike at Birla Bhavan, even more than the Birlas. . The witness further said that Shri Rama Reddys statement that he was one of · the persons distributing the pamphlet in the Central Hall from the 11th to the 15th August we quite wrong. He added: "He has freedom of speech. What cari I do." He characterised the eVidence of Shri N. N. P.atel about the distribution of the pamphlet as false. He stated in cross-examination that "there was no need of t~lking about this pamphlet particularly. Several persons of . · 4-308Sup.Cif71course talked to me as happens in the lobby." He admitted in cross-examination that he had no personal enmity with Shri Pande, Smt. Jayabehn Shah, Shri Sri Rama Reddy, Shri Patil Puttappa, Shri N. N. Patel, Shri D. N. Deb, Shri Mohan Lal Gautam, Shri H. C. Kachwai and Smt. Pushpabehn Mehta, and also no personal enmity with Shri Kanwar Lal Gupta but he had only political enmity. To the question : "Do you consider that whoever opposed you politically will try to involve you in this kind of work, i.e., .distribution of pamphlet, etc. ? he replied : "They have involved me. Therefore I think so. The proof is there." In cross-exami-nation he produced copy oi the Lok Sabha debate. dr.ted Decem-ber 5, 1967, to sbow the enmity between him and Shri Kanwar Lal Gupta. There was some discussion about Shri Gupta's alleged brother-we say ~alleged' because the petitioner's counsel tried to suggest that Shri V. M. Gupta was not Shri K. L. Gupta's brother. The witness admitted that he was against Shri Sanjiva Reddy's nomination from the very beginning. It was suggested to him that he wa~ responsible for printing and publishing this pamphlet and he replied : "I would have committed suicide if I had brought out this pamphlet." In answer to Court question uis it your evidence that all this discussion about the pamphlet was goinp; on without pamphlet being there" he replied : "Of course, so many discussions were going on."

It will be seen from the evidence of these 12 witnesses that they all deposed to the distribution of the pamphlet by Shri' Shasbi Bhushan and four of them deposed to the actual receipt of the pamphlet .from Shri Shashi Bhushan. Shri Shash~ Bhushan hru; denied the alle_gations. There is no doubt that the evidence is con-:fticting, and most of the witnesses are politically interested. It is true, as urged by Mr. Daphtary, that we cannot judge the evid· ence by mere number of members who deposed to the distri· bution though we cannot completely ignore that fact. We will have to see whether any circumstances which are proved on the record corroborate one side or the other.

11 witnesses· deposed that Shri.Yunus Saleem either distributed the pamphlet or gave it to them in the Central Hall of Parliament. WI! have already referred to the evidence of Shri Kanwar Lal G~pta. P.W. 11, Shri N. N. Patel, P.W. 26, Shri C. D. Pande, P.W. 29, Shri PatH Puttappa P.W. 50 and Shri Sri Rama Reddy P.W. 54. The other six witnesses are Shri N. P. C. Naidu, P.W. 17, .Shri Shiv Narain, P.W. 24, Shri Mahadevappa Rampure, P,W. 35, Shri D. S. Raju, P.W. 49j Shri Abdul Ghani Dar, P.W. 55, ·and Chaudhary A. Mohd., P.W; 52.

Shri N. P. C. Naidu, P.W. 17, deposed thatShd Yunus Saleem gave him one pamphlet in the Central Hall on August 11 or 12. He stated that there was t'alk between him and Shri Yunus Saleem.

He betongs to the Congress Party presid~d over by Shri Nijahn, gappa. No cross-examination seems to have been directed on ·the point of distribution and whether Shri Yunus Saleem distributed the pamphlet. It was urge~ that it was an oversight.

Shri Shiv Narain, M.P., deposed that apart from receiving the 8 pamphlet in his house he saw the pamphlet being distributed in the Central Hall by some gentlemen including Deputy MirJster Yunus Saleem, Shri Chandra Shekhar, Shri Mohan Dharia, and Shri Krishan Kant. He admitted that no pamphlet was given to him by these persons. He stated that he did not tell Shri Abdul Ghani Dar or Shri Sri Rama Reddy the names of the persons he gave in -the ::ourt as having distributed the pamphlet. It is remarkable that in the particulars supplied' by Shri Abdul Ghani Dar th~ witJiess is alleged to have received the pamphlet in the Central . Hall of Parliament on August 11, 1969, irom Shri Jagjivan RamShri Mahadevappa Rampure, P.W. 35, M.P., deposed that he received the pamphlet in .the Central Hall from Shri Yunus Saleem and saw him distributing it. He further says that Shri Yunus Saleeni said: "You can go through this pamphlet. You will gt91: enough information about the contesting candidates." He stated that he received information about the 12th February that he would have to give evidence and before that he did not have any conversation either with Shri Abdul Ghani Dar or Shri Sri Rama Reddy. He admitted that he did not complain to the Security Officer about the distribution. He could not say to whom else Shri Yunus Saleem distributed the pamphlet. His name does not figure in the particulars suwlied by Shri Abdul Ghani Dar or by Shri Sri Rama Reddy.

Shri D. S. Raju, M.P., P.W. 49, stated that he received one copy of the pamphlet in his house and another copy in the, Ce-ntral Hall· of tQe Parliament and if he could trust his memory, it ·was Shri Yunus Saleem who passed it on tu him. He admitted th!U when Smt. Gandhi became the Prime Minister she did not continue him as one of the Ministers, and that he belonged to the party of which Shri Nijalingappa is the President. He said that it was incorrect that Shri Jagjivan Ram and some ·G others delivered the pamphlet at his residence. His name does not figure in the particulars given by Shri Abdul Ghani Dar except that it is ~tated that persons mentioned in paragraph 13 (b)( iii) ,1f the Election Petition distributed the said pamphlet by leaving the ~rune at the residence of the witness.

Chaudhary A. Mohamed, M.P., P.W. 52, deposed that he met Shri Yunus Saleem in the Central Hall and he talked ab\>ut the election and Shri Yunus Saleem said that it had been decided not to vote for Shri Sanjiv'a Reddy. While giving the reasons for this

[1971] 2 s.c.R.

decision Shri Yunus Saleem had said that there was some pamphlet which he had distributed and then gave copy to the witness.· He stated that he had not told.Shri Abdul Ghani Dar that Shri Jagjivan Ram and others had given this pamphlet to him. In answer to the question : "I put it to you that Shri·Y.unus Saleem did not give the pamphlet to you or an)'One else in your presence?", he replied : "You can say so. As the pamphlet was given to me by him, how 8 can I deny it." It is rather extraordinary that in the particulars supplied by Shri Abdul Ghani Dar, Shri Krishan Kant, Shri Chandra Shekhar, Shri Ja~t Narain, Shri Shashi Bhushan, and Shri Mohan Dharia are alleged to have given the pamphlet to this witness in the Central Hall of Parliament but net Shri Yunus Saleem. .. Shri Abdul Ghani Dar, M.P., P.W. 55, one of the petitioners, ·deposed that Shri Yunus Saleem gave three pamphlets to him, two in Engliish, one cyclostyled and one printed, and one in Hindi. He further deposed.;hat Shri Yunus Saleem took him aside and on ' his a<;k.ing Shri Saleem told him about tbe contents of the pamph~ let. ·· The witness said that he has one eye and that is also defec. . 0 tive, s·o he could not read the pamphlet. In the Election Petition (No. 5) it was stated in sub-para 13(b)(iv)'that scare was created in the minds of the electors with the direct object of ]ntcrM .. ferin$ with the free cxerciS~ of their electoral right to Vote for the ciUldldute of their choice. It ·was also stated therein that 11as' single instance Shri Yunus Saleem approached Shri Abdul Ghani Dar, member of Parliament, ono of the petitioners herein, and talked to him in this behaJt as stated earlier. This was said in the Ghani presence Dar of was confronted with this statement and asked about the number of members of Parliament." Shri Abdul 1 I presence of nu111:ber of memb~rs of Parliament. He replied : ''I have even now not denied that where I was taken no other mem-bers ·were present.'' In reply to another question he said both his statements, h,is statement in ~ub~para 13 (b) ( iv) and what he stated in Court, were correct. But. in the particulars it is stated that Shri Yunus Saleem, Shri Shashi Bhushan and Shri Krishan Kant distri-buted the said pamphlet to the witness. · These particulars were given on February 7, 1970, and his evidence was taken on March 5. 1970. If his evidence in Court ~~ true, he clearly gave false particulars on February 7, 1970. It is further evident that both his statement in sub-para 13(b)(iv) and his statement in Court cannot· be true. It seems to us that Shri Abdul Ghani Dar gave .the particulars more by guess work than after having ascertained them from the witnesses or persons to whom the witnesses had spoken. We have no doubt that the verification of the affidavit giving the particulars was false in this .respect. Sbri M. Yunus Saleem, M.P., R.W. 51, then Union Deputy Minister of Law stated that he had not seen anyone distributing the pamphlet in the Central Hall. In reply to the question: "Did yoJ.i- yourself distribute this pamphlet in the Central Hall or any-where else as matter of fact?'', he replied ~ "No. penon having little knowledge of law, how can he afford to indulge in such activities of distributing such pamphlets in tho Central Hall." The learned counsel then put the statements of these 11 witnesses, which we have extracted above, and he said that they were aJI baseless and incorrect. He further said that he vhad not seen this pamphlet before the date of his evidence and so the question of his giving this pamphlet to anyone _hardly arose. In connection With the evidence of Shri Sri Rama Reddy and the incident in the Rajya Sabha he admitted that he was obtaining signatures on paper demanding freedom ·or vote in Rajya Sabha before the commence~ ment ot the proceedings in t:he House and the moment the Deputy Chairman appeared and occupied the seat he also occupied his seat and as he had to go to the other House he left his seat. He further stated that this incident had nothing to do with the distri-D bution of the pamphlet. Regarding the evidence of Shri Abdul Ghani Dar he said that except that he had talk with Shri Abdul Ghani Dar about the Presidential election every other part of it was iqcorrect. He gave his own version of the talk which took place between him and Shri Abdul Ghani Dar. He further deposed that Shri Kanwar Lal Gupta deposed falsely against him because "he belongs to political ·organisation which is against the politi.::al party to which I belong and also because in my election l had defeated the Jan Sangh candidate {rom constituency which was overwhelmingly non-Muslim constituency and where ~he security of th.e Jan Sangh candidate was forfeited." As far as Shri Abdul Ghani Dar was concerned be said that he had deposed against him because "perhaps he is in the habit of writing false lettets and fili'ng false affidavits and attacking persons who do not agree with him in his political ideas." In answer to the question : "Why Shri Mahadevappa Rampure deposed against you ?", he said : "Because ~e is from the Mysore Sta,te <:!nd is under the influence of Shri Nija-lmgap~a, perhaps in order to please him and gain his favour." The Witness also referred to report circulated by Shri Abdul ·G Ghani Dar after his return from Haj in which Shri Abdul Ghani Dar had attacked Shri Yunus Saleem. The witness admitted that he was an active supporter of Shri V. V. Girl. He further stated that Shri Shashi Bhushan was also an active supporter. He further a~itt«:d ~at he was supporting tJie move for freedom of vot-which nnplted freedom to vote against the official candidate. He further admitted that he was one of those persons who was not very ~p~ from the very beginning at the way the official candi-date ha4 been selected by the Parliamentary Boatd. He also deposed that he never saw Sbri Giri during the election oeriod.

He characterised as absolutely wrong and incorrect that he was in constant touch with Shri V. V. Giri. He further deposed that Sh(i Naidu and Shri Sanjiva Reddy were personal friends and Shri Naidu wes canvassing for Shri Sanjiva Reddy in the Central Hall. He denied the suggestion that he was carrying the pamph-lets with him. In answer to the question : "You did not show those papers to Mr. Raj Narain because you were carrying pam~ phlets with you and that would have exposed you further ?", he replied : ''It is incorrect and contrary to the proceedings of the Rajya Sabha." To the question: "Mr. Kimwar Lal Gupta moved motion that the debate on the motion be adjourned and he wanted the House to discuss what was happening in the Central Hall ' about the signature and thereafter reference. was made to character assassination. Were you present there?", he answered : '"No such motion was moved during my presence in the Lok Sabha." He was asked whether he came to know that point of order ha,d been raised in the Lok Sabha on August 14, 1970, and he replied; "No body told me about it."

We will presently refer to the proceedings in the Lok Sabha. We may. mention th~t he was cross-examined at great length and his cross-examination covers nearly 55 pages. Various questions were asked about his early career, his political association and views, etc., but we do not find it necessary to mention these because these do not assist us in weighing hiS evidence. '

Shri Yunus Saleem has completely contradicted the evidence of the· 11 witnesses, all members of Parliament. It is, however, remarkable that in the particulars supplied by Shri Abdul-Ghani Dar the only person to whom he is supposed to have distributed the pamphlet is Shri Abdul Ghani Dar himself. From the parti-culars nobody could have .imagined that Shri Yunus Saleem played such prominent part in the distribution of the pamphlet in the Central Hall, as. stated by the petitioners' witnesses. Seven_ wit-nesses deposed to receiving the pamphlet from him. In these circumstances we will have to see whether any circumstances have been proved on record which corroborate one side or the other.

We may next take the batch of witnesses who deposed to Shri Krishan Kant ·having distributed the pamphlet in the Central Hal!. These witnesses are Shri K. S. Chavda, P.W. 12, Shri Shiv Narain, P.W. 24, Shri C. D. Pande, P.W. 29, Shri Patil,Puttappa, P.W. 50, Shri .Sher Khan, P.W. 51, Shri C. M. Kedaria, P.W. 53, and Shri ~Sri Rama Reddy, P.W. 54. We have already extracted the re]e-vap.t evidence of six witnesses and the only witness whose evidence we have not considered before is Shri K. S. Chavda, P.W. 12.

Shri K. S. Chavda, M.P., said ·that he received the pamphlet in his·house and Shti Krisban Kanf, member of Rajya Sabha, gave

it to .h!ni in the Central Hall. He is one or lnt; pclsons wno entirely· changed his mind about voting for Shri Sanjiva Reddy after reading the pamphlet. No cross-examination WBB directed m particular to the question oi distribution by Shri Krishan Kant. In the particulars it is stated that Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan ar.d Sbri Mohari Dharia had distributed the pamphlet to members of Parliament, including this witness.

Shri Krishan Kant, M.P., R.W. 32, in answer to the question: "Will you please see thls pamphlet ? Have you ever seen this pamphlet before?'' stated; "I am seeing it for the first time". fu view of this statement, when confronted with the evidence of these witnesses he naturally characterised their evidence as "atrocious lie," "absolutely wrong" etc. He, however, admitted that seme people had talked to him about the pamphlet and told him·that such pamphlet using some filthy and derogatory language had. ~n written. His immediate reaction then was that some enemy Of Shri Giri had done it. He further stated that Shri K. R. Gal1CSh, M.P., talked to him about the pamphlet though not in ·detail. This talk must have been either in the lobby or in the Central Hall. He further stated that at the time Shri Ganesh talked to him he was the suppo~r of Shri Giri, and that he never met Shri V. V. Giri during the whole oi the election. He described the suggestion that he alongwith his coUeagues were responsible for the drafting of this pamphlet and getting it published as utterly scandalous. He said that there was no foundation in the allegation that he distri-buted the pamphlet in the Central Hall from the 9th to the 16th August. In re-e~amination he was asked the reasons wlty--the persons, who had stated that he had distributed the pamphlet to them, had given false evidence. He replied that the only reason ~sible could be political opposition, and by that he meant that they were the supporters of Shri Sanjiva Reddy. Here again there is direct conflict between the evidence of Shri Krishan Kant, M.P., and of the witnesses whom we have just discussed.

Coming to the evidence relating to the distribution by Shri Chandra Shekhar, it consists of the evidence of six witnesses; Shri Shiv Narain, P.W. 24, Shri N. N. Patel, P.W. 26, Shri H. C. Kachwai, P.W. 32, Shri Suraj Bhan, P.W. 33, Shri Patil Puttappa, P.W. 50, and Shri Shri Rama Reddy._ P.W~. 54. We have already extracted the relevant evidence of the wit-nesses other than Shri Suraj Bhan, M.:P. He stated that 'lie saw the pamphlet being distributed in Puliament House · ~y Shrl Amrit Nahata, Shri Chandra Shekhar, Shri Chand.rajeet Yadav and so many others. The witness belongs to the: ·'Jan

SaDgh party. He said that he did not mention that Shri Jagjivan Ram and 11 other persons distributed the pamphlet. He further admitted that he did not tell Shri Sri Rama Reddy or Shri Abdul Ghani Dar that the pamphlet was given to him in the Central Hall between the 11th and the 15th of August by Shri Jagjivan Ram and others. In the particulars he is one of the membets of Parliament who is supposed to have been given this pamphlet in the Central Hall of Parliament by Shri I agjivan Ram and 11 others.

· S~ Chandra Shekhar himself appeared in the witness box as R.W. 5. He stated that he did not actually see these pam-phlets but portion of .the pamphlet in English was read out to him by friend. He denied having distributed copies of the paJtlphlet, either the English version or the Hindi version, to other persons in the Central Hall of Parliament. He described the evidence of Shri Suraj Bhan as mere concoction and the evidence of Shri Kachwai as totally wrong. It may be mentioned that on the morning of Augt:st 9 he went to Calcutta by plane and was in Calcutta on the 9th and lOth August. On the 11th morning he left Calcutta by plane for Patna and he was in Patna on the 11th, and on the 12th morning he was due to leave for Delhi but his plane was delayed and he reached Delhi sometime in the evening of the 12th. So, if he did distribute the pamphlet it must have been only on the 13th and 14th for he says that he did not go to Parliament on the 15th as it was holiday. In cross-examination he said that he had no discussion about the pamphlet because no serious person would discuss such thing. He on1y . h~ard whisperings ab~ut the pamphlet. But even after coming to know abcut the whispe-rings he did not know that the pamphlet was in circulation. He characterised the suggestion that the· pamphlet was prepared and published with his knowledge and after consult~tions with him ~ unfounded, incorrect, mischievous and scandalous. He admitted that he had demanded the resignation of the Congresc; President on August 14, 1969, but said that he demanded it on certain conditions.

The evidence of Shri Chandra Sbe)cllar and of the other six members of Parliament, which we h.ave ext:acted above, is con-flicting and we will have to look for cortoborating circun1stances.

Five witnesses deposed to Sbrl Mohan Dharia, M.P., as having distributed the pamphlet in the Central Hall. We have already extrac!ed the relevant evidence of Shri Shiv Narain, P.W. 24, Shri H. C. Kachwai, P.W. 32, Shri Patil Puttappa,. P.W. SO, Shri Kedaria, P.W. 53, and Shri N. Sri Rama Reddy, P.W.~.

Sbri Mohan Dbaria, M.P., R.W. 17, admitted that the pampblet in English came to him by post and that he had glanced . through it He characterised it as baseless, filthy and said that \ as it was not signed ·by anybody he did not ta~ any serious notice of it and ignored it. , In answer to the question : "Did you distribute this pamphlet in the Central Hall to anybody on any day?", he said : "I have never distributed this prunplet. I have no relation with this pamphlet. On the contrary 1 would Jite to tell that I was not supporting Mr. Girl, but I was suppon· ing Mr. Reddy at that time." In this statement he is supported by other witnesses. He said that when he wa$. at Nagpur on August 9, 1969, he participated in as many as eight programmes and there was one Press Conference ·besides, wherein be had categorically said that Shri Reddy would win in the Presidential election. In an issue of Dail¥ T~run Bharat dated August 10. 1969,. the repon of his Press Conference was published, tran.~ta­tion of which was marked Ext. R 12A. The report reads:"The decision of setting up Shri Sanjiva Reddy for the Presidential election . has been taken by the Congress Party and it is binding on aU from Prime Minister to ordinary Member. Besides, Shri Reddy has created respect in the minds of Members of Parlia· ment because of his impartial regime as Speaker. On this cackground Shri Mohan Dharia. M.P., leader of Young Turks,. in Press Conference, confidently ex-pressed the certainey of success of Shri Reddy in pre~ sidential election."

He admitted that his attitude in relation to the Presidential election remained the same till the 16th August, the day ()f polling. He was not shaken in his cross~examination. He wa~ asked whether he made any similar statement like the stntc-nient he made on August 9, 1969, and he replied that there was no occasion of meeting the press after the 11th. He 'vas con-fronted with despatch in the Times of India, dated August 1 :!. 1969, from Patna which appeared in the Times of India on August 13, 1969, which reads:

"Three 'Young Turks' today condemned what they described as move by the "Syndicate'' in the Con-gress to forge an alliance with the Swatantra Party and the Jan Sangh.

Mr. Chandra Shekhar, Mr. Mohan Dharia and Mr .. Sbanti Kothari, all MPs, expressed concern at the recent deve{Qpments in New Delhi and pointed out that the Con· RSS President's "overtures~· to Jan Sangh and Swatantra leaders had "deeper implications."

In joint statement, they supported the action of Mr. Jagjivan Ram and Mr. Fakhruddin Ali Ahmed, Union Mimsters, in seeking clarifications in this regard from Mr. Nijalingappa."

He -replied that the despatch was correct but it was not his statement. He further said that on the 14th August there was meeting of the MPs from Maharashtra and in that meeting he ag8in had occasion to declare publicly that ·he stood for . Shri _SMjiv~ Reddy in the Presidential election. He admitted that not onJy_llid he sign the requisition for calling the A.I.C.C. meeting fc)r.1he Delhi Session but he was also one of t)le cauipaigneJ;S· to have ·:that meeting called. He dtnied seeing anybody discussing the': pamphlet because he said that he was ha!'dly ·there for more , $.3D one. or two days; he was in Nagpur on the 9th, and the lSth was holiday. He characterised the suggestion that h~ and the other so-c.allcd Young Turks were responsible for the publication .of this. pamphlet as absolutely false, frivolous, baseless and so far as he .was concerned it was absolutely defamatory because he had worked for .Mr. Reddy and would not issue such statements Be-sides, in his career he had never done so. He recognised Shri Y. B. Chavan as his leader and he said that Shri Y. V. Chavan support· ed Shri Sanjiva Reddy.

In view of his statement and the statement of other witnesses that he was supporter of Shri Reddy it would be difficu1t ~"hold that he would be party to distributing the pamphlet, unless there ar~ some other circumstances which corroborate the evidence given by the witnesses implicating Shri Mohan Dharia.

Two witnesses named Shri Amrit Nahata, M.P., as having distributed the pamphlet; Shri Venkatasubbiah, P.W. 11 and Shri Suraj Bhan. P.W. 33. Shri Venkatasubbiah said that he saw it being distributed in the Central Hall by some members of Parlia· ment. To the question; "Can you nname anyone ?", he answered; "I cannot because so many days have elapsed. I remember to some extent Mr. Amrit Nahata T have seen distributing." He further said that he did not receive it in the Central Hall. We have already referred; to the evidence of Shri Suraj Bhan, M.P., P.W. 33. H~ named Shri Amrit Nahata as one of the distributors. Shri Amrit Nahata, R.W. 3, admitted that he received the · pamphlet by post but said that he just threw it away. said that he just threw it away. he just threw it away. just threw it away. He further further deposed that he he did not he~r · · any talk about the pamphlet in the Central Halt.· He described Shri Venkatasubbiah's evidence re-HShri Amrit Nahata, R.W. 3, admitted that he received the · pamphlet by post but said that he just threw it away. said that he just threw it away. he just threw it away. just threw it away. He further further deposed that he he did not he~r · · any talk about the pamphlet in the Central Halt.· He described Shri Venkatasubbiah's evidence re-garding distribution of the pamphlet as blatant lie. He also characterised Shri. Suraj Bhan's evidence naming the witness as distributor of the pamphlet as absolut~y incorrect.

Here we have two members of Parliament saying that· Shri Amrit Nahata was distributing the pamphlet in the Central Hall,. while Shri Amrit Nahata has flatly denied the allegation. Further Shri Venkatasubbiah was not very definite, though no quesJions were asked in cross..exam.ination to elicit why he remembered Shri Amrit Nahata's name to some extent. Nor was any· question asked to establish any personal or po~cal animosity between Shri Ainrit Nahata and the two witnesses. · His name does not appear in the· particulars given by Shri Abdul Ghani Dar, though his name-does appear in the particulars given by Shri Sri Rama Reddy.

On· this evidence it would be difficult to hold that· it has ~n. proyed that Shri Amrit Nahata had distributed the p~hlet uatess some corroboration is forthcoming.

This 'leaves us to deal with five other alleged distributors of parilphl¢~ in the Central Hall. They have one thing in commo.n .. Only ~ -witness in each case saw them distributing the pamphlet.. S1)ri Japt Narain, M.P., RW. 25, was seen by Shri Sher Khan,. P.w.· Sl; ·distributing the pamphlet with Shri Shaslli Bhushan~ and Shri Krishan Karit. Shri Jagat Narain deposed that he did not receive any pamphlet and saw it for tho first time in Court. He· further says that his correspondent-tho witness has connection: with ·a. newspaper 'Hind Samachar'-Shri Suri, who representod. the paper from Delhi asked him in tile first. or· second week of· August whether he had received the pamphlet or not. He said that the evidence pf Shri. Sher Khan, M.P ·~ was not true. It iJ. difficult to believe that he never Q8Jlle across the pamphlet and saw it for the first time in Court. He was journalist -~d the-que'ry of Shri Suri would at least have set him on the trail.

Shri N. Sri Rama Reddy, P .. W. 54, said that Shri S. M~ Banerjee was one of the persons who was distributing the pamph-let in the Central Hall and he had named him in the petition.• Shri S. M. Banerjee, M.P., R.W. 31, who is politically with the Com-· munist Party of India, headed by Shri S. A. Dange, stated that "a pamphlet was sent to my address by post and when my wife told me that this pamphlet contained certain things which according to• her were altogether rubbish and that it was anonymous I asked· her to tear it off.n He characterised Shri Sii Rama Reddy's evi-dence regarding him as absolutely false and malicious. He · ad-mitted that ·some members of Parliament had talked to him and told him that there was very nasty pamphlet issued against Slu'i SatJ.jiva Reddy but he did not think it necessary to make further . enquiries. In answer to the question : "Who were the persons who talked to you about this pamphlet?'~, he replied : "Many peopte, it was the talk· .of the day."· The cross-examination fur-ther: proceeded thus : ·

Q. Kindly give some names ?

A. My own group. Members of Parliament and some of them did talk to me about this pamphleJ.

PC. In the Central Hall?

A. In the Central Hall, lobby and even outsid~ the Parliament. But I told them we were more inte-rested in an idealogical fight than this character assassination.

His evidence clearly corroborates the evidence of P.Ws. to this extent that the pamphlet was the talk of the day. We will examine the implications of his statement little later.

On this evidence it would be difficult to hold that Shri S. M. Banerjee was one of the dist1ibutors unless there is some indepen-dent corroboration.

Shri Jagjivan Ram, M.P., R.W. 52, was named hy Shri H. C. Kachwai, M.P., P.W. 32, who said that .Shri Shashi Bhushan and Shri Jagjivan Ram gave the pamphlet to him in the Central Hall. Later he clarified that Shri Shashi Bhushan and Shri Jag]ivan Ram came separately and Shri Jagjivan Ram also gave him a. similar pamphlet. Shri Jagjivan Ram characterised. this part of the evi-dence of· Shri H. C. Kachwai as entirely and conipletely false. He further said that Shri Kachwai belonged to Jan ~angh, which party was, due to the Presidential election, more virulent about the Congress·: than usual. We may mention that he ~aid that he did . not receive the pamphl~t by post or in the Central Hall and he did not see any distribution in the Central H:all -()r hear any dis" cussion about this pall1phlet during' that period, although he used to go to the Central Hall practically every day after the Question hom• and usually sat there for half an hour ..

Jn the particulars given by Shri Abdul Ghani Dar it is stated that Shri Jagjivan Ram distributed. the pamphlet to Shri Shiv Narain, M.P., and Shri Hukam Chand Kachwai, M.P. Shri Shiv Narain, P.W. 24, did not implicate him though he implicated others. Sliri J agjivan Ram was at ·the relevant time Cabinet Minister and one of the important leaders of the Congress Party. If he was going to distribute the pamphlet it is difficult to be~ieve that he would distribute it to tme member of Parliament only and that too to member belonging to the Jan Sangh. If he was go-jog. to distribute we would expect him to approach many memben; -of Parliament and play leading part. In the circumstances vie .cannot hold it proved that Shri Jagjivan Ram (fistributed the pam-phlet in the Cent~al Hall unless there is independent corroboration.

Shri Chandrajeet Yadav, M.P., R.W. 56, was seen by Shrr Suraj Bhan, P.W. 33, distributing the pamphlet in the Central Hall. The latter belongs to the Jan Sangh. Shri Chandrajeet Yadav, in his evidence, said that Shri Suraj Bhan had made ~ completely false and baseless allegation. Actually he would deem it below his dignity to distribute pamphlet of this nature. He guessed that Shri Suraj Bhan had named him because he had always attacked the policy of Jan Sangh. He said that althougb two friends talked to him about the pamphlet at function he had not seen the pamphlet till he came to this Court.

On this state of evidence was cannot hold it to be p1.>ved that Shri Chandrajit Yadav distributed the pamphlet unless there is some independent corroboration.

Maulana Ishaq Sambhali, M.P., R.W. 57, is implicated by Shri Sri Rama Reddy, P.W. 54, wh0 said that he saw Maulana Ishaq and others distributing the patuphlet and he had named him in the particulars supplied by him. Maulana Ishaq Sambhali, when showed this evidence, deposed : "I am sorry if he has men-tioned my name for distributing the pamphlet. It is totally false· and incorrect." He further said that he was elected on the Com-munist Party of India ticket and worked for Shri V. V. Giri, spoke to members of Parliament and approached M.L.As. of his state (Uttar Pradesh). He also said that he did not hear any talk about this pamphlet before the filing· of this petition.

On this evidence we cannot hold it proved that Maulana lshaq Sambhali distributed the pamphlet in the Central Hall unless there is corroboration. Apart from what we have already noticed, the petitioners led evidence to show that the pamphlet was not only widely distributed but also talked about for two to three days.

Shri S. K. Patil, M.P., P.W. 16, said : "It' was the talk of the towu. In the Central Hall and wherever we went, there was nothing except this pamphlet." They considered what to do but could do nothing. He tried to trace the Press "but there was nothing."

Shrimati Tarkeshwari Sinha. M.P .. P.W. 34, said that she did not see the pamphlet being distributed but found that the pamphlet had become the subject-matter of discussion in the Central Hall amongst all groups and in the Ladies lounge where they generally went and sat. We will refer to her alleged visit to Shri V. V. Girl later.

Shri Ram Krishan Gupta, M.P., P.W. 43, said that he received .the pamphlet in the house and he saw the pamphlet being distri-buted in the Central Hall but did not receive it there and could .not remember who was distributing: We will refer to his evi· dence regarding his alleged visit to Shri V. V. Girl later.

Shri Morarji Desai, M.P.,. P.W. 39, said that be received the pamphlet by post. He gave the following reasons for not doing .anything: "I .could not do much about the pamphlet because one cannot merely deny it. One has to give facts. There are so many people mentioned anonymously in it. It would take long time to enquire. Within two days. it was not possible to find out anything to contradict this effectively. It would also mean that mere d'i:nial would give more prominence to it and make its cir7 culation even more effective." He said that in his statement print-ed in the Hindustan Times of August 15, 1969-Ext R 6---he indirectly referred to the pamphlet in the following sentence : "All of us have at different times received our share of mud slinging, criticism or hostility, but the organisation has remained s.,upreme over individuals and bodies and we have served it loyally and faith-D fully/' (emphasis supplied)

Shrl S. Nijalingappa, P.W. 47;· who was President of the Indian National Congres in August 1969, said that he received the pamphlet on 11th or 12th August but did not try to find out who were the persons who had published this pamphlet, because in the first· place it would be difficult and in the second place the more he looked into and made enquiries, it would possibly receive greater publicity which he wanted to avoid. He further said that quite few Members of Parliament brought the pamphlet to his notice.

Shri M. S. Gurupadaswami, M.P., P.W. 4~, then Minister (He ·ceased to be Minister on October 17 ~ 1967) said that he ·received the pamphlet by post. To the question : uDid you come across this ·pamphlet in Parliament?", he answered: "Yes. I saw the pamphlet being read by many people in the Central Hall of ·parliament." He added that he' did not see it being distributed but only read.

Before dealing with the evidence of the respondent's wit-nesses we may deal with certain contemporaneous documents and debates in Parliament on which the petitioners rely.

Shri Madhu Limaye, M.P., P.W. 8, wrote to the Chief Elec-·tion Commissioner on August 13, 1969-Ext. 7 P17- about the pamphlet. This letter does not say anything about distribu-tion in the Central Hall of Parliament but it corroborates the case of distribution. He deposed that he Y...,ared that it might affect

the chances of his Presidential candidate, meaning the respondent, and it would affect the validity of the election. We have already mentioned that he wrote to the Prime Minister whose reply we have already referred to.

Shri Kanwar Lal Gupta, M.P., P.W. 11, wrote letter, Ext. P37, on August 14, 1969, to the Chief Election Commiss1oner. It is, urged that the first para of the letter clearly indicates distri-bution in the Central Hall. The first para reads :

u The Prime Minister, along with some of her col-leagues in the Ministry. are putting pressure on some Membm of Parliament to vote for Sbri V. V. Giri, who is candidate for the post of President. signature campaign is also going on in the Parliam~nt. Money is being offered to some members who vote for Shri V. V. Girl. MQreover, pamphlets are being distributed in which vulgar charges have been levelled against an-other candidate for this high office. Character assassi-nation is going on. I am sending copy of the pam-D phlet in which vulgar and filthy attacks have been made against Shri N. Sanjiva Reddy. This amounts to corrupt practice under the Election Law .. These pam-phlets are being distributed by the supporters of the Prime Minister. Shri M. Yunus Saleem, Minister in her Cabinet and some others are very active in it."

It is· urged that the words "moreover pamphlets are being distri-buted" and "these pamphlets are being distributed by the sup· porters of the Prime Minister. Shri M. Yunus Saleem~ Minister in her Cabinet and some others are very active in it" and read to-gether and properly interpreted mean that the pamphlets were being distributed in ways other than by post; it is no body's case that S'..ui Yunus Saleem was active in distributing the pamphlet by post. On the respOndent's side it is urged that the words "are very active. in it" 'have reference not to distribution of the pamphlet but to the signature campaign. This is also possible interpreta-tion ·but we are of the opinion tbat, in the context,. the interpreta-tion suggested by the petitioners is correct. If the respondent's inter·pretation were correct, we would expect some other word to be used than ''distributed" ~nd further the word "being would not have been used. and instead the words "have been" would have beon employed. Further,· if reference is to distributoin by post it is nobody's case that the supporters of the Prime Minister were doipg it. No body ther. knew and no body even now knows who actually posted them. It may have been done by supporters not belonging to the Congress Party. But having seen persons actually distributing the pamphlets the writer could very well use the ex-pression "supporters of the Prime Minister". In our opinion, this

letter which is contemporaneous, strongly corroborates the story told by the petitioners' witnesses that some persons alleged to be \ the supporters of the Prime Minister were distributing the pam· phlet in way other than through post. Reading the letter as whole we would interpret the words "active in it" as active in dis-tribution because the sentence in which it occurs follows imme-diately the sentence "these pamphlets are being distributed by the supporters of the Prime Minister.''

Shri Kanwar Lal Gupta has, in his evidence, implicated Shri Yunus Saleem and Shri Shashi Bhushan though he also stated that there w~re m"ny others. This letter corroborates his version. At the time he wrote there was no question of creating evidence for possible election petition. His letter ·.Vas even mentioned in news item.

Reliance was also placed on number of proceedings in Par· liament, but we find that the only proceeding that assists the peti· tioners is that in the Lok Sabha on August 13, 1969, when dis· (:ussion took place on submission under Rule 340 made by Shri Kanwar Lal Gupta. Shri Om Prakash Tyagi said :

"I am not going to surrender .... (interruptions). Just now, minister was questioned about obtaining signatures and obiection was befor~ there. I want to inform you that even dirty pamphlets are being distri~ buted. On reading which one's head goes down with shame. Therefore I request you that the motion pre-~ented by Shri Gupta Ji should be put to vote. False propaganda which is going on in the lobbies should be stopped."

These stat~ments obviously allude to the distribution of the pamphlet in the premises of Parliament.

Now let us look at the evidence of witnesses of the respondent other than those alleged t~ be distributors of the pamphlet in the Central Hall. Apart from the M.Ps. who are alleged to have dis-tributed the. pamphlet in the Central Hall, 14 other M.Ps. who have been examined on behalf of the respondent depose on the point of distribution of the pamphlet and discussion about it. These are Sarvshri Munshir Ahmed Khan, R.W. 2, M. Anandam, R.W., 4, R. K. Sinha, R.W. 8, Smt. SaV'itri Shyam, R.W. 11 Sarvshri Syed Ahmad Agha, R.W. 10, P.M. Syed, R.W. 13, M. V. Krishnappa, R.W. 22, Gulabrao Raghunathrao Patil, R.W. 29, P. Viswambharan, R.W.39, I. K. Gujral, R.W. 40, Fathruddin Ali Ahmed, R.W. 44, T. D. Kamble, R.W. 46, Raghu Ramiah, R.W. 47. and Tulsi Das, R.W. 50. All of them (except Shri Kamble. R.W. 46, who was away from Delhi from 8th to 14th August and did not go to the Central Hall on 15th August) said that they saw

S. K. SINGH V. SHRI V. V, GIRl (Sikri, J.)

no distribution of tile pamphlet in the Central Hall. · Ten of them said that there was no discussion about the pamphlet in the Centfal Hall. One lady member said that there was .no discussion in · the Ladies Lounge. Two (R.W. 4 and R.W. 8) have admitted.'that th~re was discussion. Five admitted having received the pamph-let by post (R.W. 2, R.W. 3, R.W. 8, R.W. 11 and R.W.l3).' It is not necessary to ref~r to their evidence in detail because it is. possible that these witnesses did not see distribution of the pamph .. let in the Central Hall. Some of th'e petitioners' witnesses also did not see distribution with their own eyes. The Central Hall was stated to be big place, having as many as 396 fixed seats. member sitting on one side may not be able to observe what is happening on the other side of the Hall. But it is hardly believ-c able that when the pamphlet was the talk of the town, as admitted even by Shri S. M. Banerjee, these M.Ps. did not discuss, how-ever casually, or hear or overhear discussion about the pamphlet.

Some of the alleged distributors have also denied hearing talk or discussion about the pamphlet. We find it equally difficult to believe them in this respect.

We may add that Shri Din.<;:sh Singh (who is not included in the M.P.s mentioned above) stated in cross-examination that he came across the pamphlet and glanced through it. Both sides refrained from asking him al:?out distribution of the pamphlet in the Central Hall. But the omission on the part of the counsel for the respondent to ask him about it has some significance,

We may here briefly refer to the evidence of Shri M. Anandam, R. W. 4, and Shri R. K. Sinha, R. W. 8. as their. evidence lends support to some extent to the case of the petitioners. Shri M. Anandam, M.P. deposed that he received the pamphlet (Ext. P 18/B) in English by post, just glanced through it and it was in such filthy language that he just threw it away. He saw no one distributing it in the Central Hall. To the question : "Do you remember any discussion about thi's pamphlet in the Central Hall?", he answered : "There was discussion amongst some members and some of us felt that this was in such filthy language and scurrilous language that no body should go down to that level for the purpose of propaganda ... and we felt that at Jeast members of Parliament would decide issues like the Presidential election on better considerations. Therefore, we ignored the pamphlet." He said that he belonged to the Con-gress Party headed by Shri J agjivan Ram. In cross-examination he said : "There was discussion about this amongst some m·embers of Parliament who had received it by post" and that he did not see the pamphlet in anybody's hand.

Shri R. K. Sinha, M.P., R.W. 8, in his examination-in-chief said that he did not see anyone distributing the pamphlet in the 5-L308Sup.C.I.f71

C~ntra~ Hall, but there was some discussion about the pamphlet wtth fnends about this. He, however, did not join the discusr;on but only overheard. He characterised the suggestion that he was "one of the persons responsible for the publication and distribu-ti~n of the pamphlet as 'wrong,' 'blasphemous', 'total lie'. He said that he never read the pamphlet but he knew about it be-cause in the Central Hall friends had told him that this was highly vulgar and spurious pamphlet. He further said that one or t~o _journalists an~ pro~ably Shri Balraj Madhok were dis-cussmg .It and brought It to hts notice. He further added that "may be Justice Mulla was there" He also said that to his knowledge the pamphlet reached members of Parliament by post.

. These witnesses support t.he case of the petitioners at least to thts extent that there was discussion about the pamphlet in the

Central HalL

Ih this connection the respondent's learned counsel relied on the statements of Shri Mohanlaf Sukhadia, Chief Minister Rajas-than, R.W. 42, and Shri V. P. Naik, Chief Minister Mah ... ashtra, R.W. 43. The former deposed that he came to Delhi on the 12th or 13th August and many Congress M.P.s came to see him but nobedy mentioned these pamphlets. Even Shri Nijalingappa, Shri Morarji Desai or Shri Chavan did not speak about them to him. Further, although he had telephonic talk with Shri Nijalingappa. so far as he could remember there was no talk about the pamphlet. He further deposed that when he came to Delhi on 24th August be heard no complaint from any of the leaders or otherwise about the· pamphlet. Neither was there any talk in the meeting of the Working C~mmittee on August 25. We may mention that various witnesses support his version regarding the meeting of August 25. He further said that nobody in J aipur mentioned to him about the pamphlets and he did not see them there. Shri V. P. Naik said that he came to Delhi often during the election period in August and no one spoke to him about these pamphlets. Neither was any-thing said to him during the course of telephonic conversation. which he had with members of Parliament, and Shri Nijalingappa. He further said that he was in Delhi abou, the 20th August, met the Prime Minister, the Home Minister and Shri Nijalingappa. but none of them made any complaint about these pamphlets.It is difficult to appreciate how the evidence of the two Chief Ministers helps us on the question of distribution of the pamphlet. Since the Prime Minster and so may members of Parliament have admitted receipt of the pamphlet by post, at the most the only inference that can be drawn is that the Prime Miniser and other members of Parliament who met the two Chief Ministers di<i not tltink it advisable or important to talk about it to the two Chief

NWsters. We can, therefore, hardly draw the inference that no discussion of the pamphlet took place.

Viewing the evidence as whole we are of the opinion that the pamphlet was ·distributed by post and in the Central Hall of Parliam~nt by some members of Parliament and there was wide. discussion about it in the Central Hall. As we have mentioned 8 earlier, the evidence of the witnesses of the petitioners that there was distribution in the Central Hall is corrot;x>rated by contem-poraneous documents.

On the question as to who were the persons who were distri-buting the pamphlet in the Central Hall it is not, in our opinion, necessary for us to arrive at finding from ~ass of evidence which is both conflicting and partisan. The distribution of the pamphlet in the Ce.Iitral Hall was relied on by th~ petitioners for the purpose of bringing home to the respondent knowledge a~ut the pamphlet and its publication and his connection with it. The petitioners, however, have failed in their object, for, there ia no evidence whatsoever to show that the respondent had any con-D nection with the pamphlet or with its distribution. Nor is there any evidence to show that anyone connected with the distribution either through the post or in the ce·ntral Hall had any contact with the respondent, or that he· distributed it with his knowledge or connivance. The question of identity of those who distributed it in the Central Hall, therefore, has in these circumstances be-E come unnecessary and even futile. What is also equally important is that there is no provision in the Act for giving notice to and hearing persons alleged to be the distributors. finding that particular member or members of Parliament committed the offence of publication, an act punishable under the Penal Code, would thus amount to finding arrived at without giving such person or persons an opportunity of being heard. It was urged on behalf of the petitioners that the respondent, Shri V. V. Giri, had connived at the distribution of the pamphlet. Before we examine the evidence .relied on on behalf of the peti:-tioners to prove connivance, it is necessary to give few parti-culars about the house where Shri V. V. Giri had his office and where Smt. Tarkeshwari Sinha, P.W. 34, and others are said to have gone to see him. There is small lawn in front of the house and the size of the lawn is approximately 7ft. x 18 ft. when visitor comes to the house he goes inside through the verandah, which is approximately 4 ft. x 10 ft. This verandah is open and adjoins the office room and the drawing room. Shri Giri used to sit in the drawing room which was air-conditioned.

Shri N. P. C. Naidu, M.P., said that Shri Yunus Saleem gavP-him the pamphlet in the Central Hall on the 11th or 12th of August, and he also received the pr.mphlet by post. After reading

the pamphlet he felt disturbed and he wanted to meet Shri V. V. Giri and tell him to contradict the pamphlet because Shri V. V. Giri's supporters were distributing the pamphlet. He said : "So I went to his house to meet him in Defence Colony. There wer~ the supporters of Mr. V. · V. Giri and they asked me if I was also his supporter when I told that I had only gone to see ·him. 1 could not see hiri1 and on the same day I wrot~ letter to him requesting him to please contradict this otherwise it will not be fair election." He stated that he sent the letter by ordinary post and though he thought that he had copy of it he did not pro~ duce it. In cross-examination he admitted that he had not told the petitioners that he went to Shri V. V. Giri and brought the pam· phlet to his notice and asked him to dissociate himself from it. But .in the particulars supplied by Shri Sri Rama Reddy it is stated that persons nL~med below went to the residence of Shri V. V. Giri.at C-243, Defence Colony, New Delhi, on the dates noted against each and they brought this pamphlet to the notice of Shri V. V. Ghi:

J. Shri Ram Krishan Gupta, M.P.-13~8-69

2. Smt. Tarkeshwari Sinha, M.P.-l 4:-8-69

3. Shri N. P. C. Naidu, M.P.-13-8-69

4. Shri Hari Krishna, M.P.-14-8-69

(We may mention that Shri Hari Krishna was not examined). It will be noticed that in his evidence Shri N. P. C. Naidu does not say that he saw Shri V. V. Giri; there is also no proof that he ever wrote letter. Shri V. V. Giri denied in the witness box having received any letter from Shri Naidu. Shri V. V.Giri depos· ed that he did not know Shri Naidu and he did not think that he had ever seen him. Shri Giri further stated that he never received any letter from Shri Naidu requesting him to contradict the con· tents of the pamphlet.

Smt. Tarkeshwari Sinha, M.P., P.W. 43, deposed that the mem" bers of Parliament seemed to be affected by the pamphlet and that the atmosphere was bad as the character of Shri Sanjiva Reddy was being discussed. She said :

"I went to Mr. Giri's .house on 14th of August in Defence Colony. Somebody came out. I asked him that I would like to see Mr. Giri. He went inside and I was in verandah and Mr. Giri came and I showed this pamphlet to him and I said to him that the election that is· going on is for the highest office in the country and I think that you should repudiate this pamphlet, be-cause this pamphlet is not only· untrue, but is mean. He

. said : "What can I do about it?" I said to him that as contestant for the highest office in the country it is your obligation to maintain the standard of the election cam-paign. He again repeated: "What can I do in the matter?" and suddenly became very cold and became ·quite and when I found that there was no response, I wished him and came back."

She, however, admitted in cross-examination that she had not referred to this pamphlet in any of her articles but explained .that those articles were part of the .political commentary and there was no mention of the character of the candidates or their qualifica-tions and disqualifications. She admitted that she belonged to the group of which Shri Nijalingappa is the President. She denied th~ suggestion that the entire alleged interview between her and Shn Giri was fiction. She further said that she went alone and no one else was present when she had this conversation with · Shri Giri. She could not remember the exact time but is was sometime in the morning. Her statement which we have quoted above was put to Shri Giri and he characterised it as absolutely incorrect and said that she never came. He added: "I can only say with respect that it must be figment of her imagination." He further said that he was always on good terms with her and had no enmity with any-one, especially not with her. He further stated that there was no reason why he should not have met her in the drawing r~om and he would certainly have invited her into the drawing room and heard her with respect "'hatever she wanted to say, but she never ·came at all.

Before we evaluate this evidence we will have to refer to the evidence of some other persons. The next witness who was relied on in this respect is Shri Ram Krishan Gupta, M.P., P.W. 43. SD.ri Ram Krishan Gupta,' when asked whether he did anything in connection with the pamphlet, replied; "After two or three days (of the receipt of the pamphlet) my daughter told me that she had received telephone from Shri V. V. Giri. She noted his address and telephone number also." He went to see Shri Giri in Defence Colony about two or three days before the election. He further ·said that he met Shri Giri and the following conversa-tion took ,Place :

"Q. What was the talk between you two ?

A. He asked me to support him and I refuslo..d that I am committed to Sanjiva Reddy. I am congress man and congress had put up Sanjiva Reddy. Therefore, I must support ·him. Moreover, party or candidate which issues such posters does not deserve any help.

Q. What was his reply ?

A. He said nothing; only this much that'what can I do.

Q. Did you ask him about this pamphlet?

A. Yes, about this pamphlet that such posters should not be issued and should be contradicted by his party. His reply was : what can I do ?"

In -;ross-examination he stated that he did not tell Shri Abdul Ghani Dar or Shri Sri Rama Reddy the exact date he went to Shri Giri's house but only told them that it was two or three days before the election. He said that there was no guard posted at Shri Giri's house because Shri Giri was interested in the election and further that two or three persons were sitting when he had this conversation with Shri Giri but he did not know them. It was difficult for him to give any idea or description of those persons. He further said that he went in the evening and he went from the front side and he could not give any further description of ·the house, whether the entrance of the house was in the front side, or whether it is only ground floor house or whether there is any upper floor on it because he went there casually. He . explained that by evening he meant 7 or 8. It was put to him that his entire story of g0ing to Shri Giri's house was false, and he said ; ·'It is absolutely correct. If you examine my telephone directory, his number is still written there by my daughter." The learned counsel for the respondent read the evidence, which we have extracted above, to Shri V. V. Giri and aslred the question : "Is any part of this statement correct ?" Shri Giri replied : "He never met me." We may reproduce the rest of the examination :

"0. Did you telephone?

A. I never telephoned to him. I think to his daughter also I never spoke on telephone.

Q. Did you meet any visitors in the verandah'!

· A. I never met anybody ·in the verandah; it was hot and sultry outside at that time and I received every one in the drawing room."

Shri Harbans Lal Sehgal, Deputy Suprintendent ·of Police, R.W. 7, was one of the Security Officers assi.gned to guard Shri V. V. Giri. He had been with him since Shri V. V. Giri was Vice-President of India in 1967. He said that another Security Officer, Shri R. N. Mullick, was also assigned the same duty. Between themselves they took shifts at No. C-243, Defence Colony. Shifts were normally between 8 a.m. to 2 p.m., 2 p.m. to 8 p.m., and the first man would come from 9 p.m. till morning~ According to him there was ~o time when Security Officer was

• ' I '\

not present. Shri Giri did not sleep at No. C-243 Defence Co!0ny but at C-496, where the Security Officer used to stay. He stated that he was on duty on August 14, 1969, and he remembered this be-cause he returned from tour with Shri V. V. Giri on August 13, 1969, in the afternoon, then his co\lnter-part Shri Mullick took over the night duty and he came on duty in the morning of the 14th. Re said that he took over duty at 8 in the morning. He further said that gunman was always on duty and the gunnian used to stand near the gate. He described the procedure when any-one came to see Shri Giri thus : "He shall meet us--one of the Security Officers who was present there-and we informed either Mr. Krishna Rao or the son of the President, whosoever was pre-C sent and if they allowed him, we took hjm to the President in the drawing room where the President was sitting.'' He said that the drawing room door-a closable door-<>pened on the verandah from which they took the visitors. The further procedure was that after he had shown the visitor the door was closed as the room was air-conditioned. He further deposed that he knew Smt. Tarkeshwari Sinha by sight, that Smt. Tarkeshwari Sinha never came during his duty hours and further that the President never met anybody in the verandah. When asked: "How do you know Shrimati Tarkeshwari Sinha ?", he replied : "I am in the Security Branch of the Police for 12 years and I know she i'l " prominent member of the Parliament and then she W\lS Deputy Minist~r in the Ministry of Finance as I know some other members of Parlia-E ment and Ministers which I saw during the official duties and came in contact otherwise.' He asserted that to his knowled2.e no one who came to see Shri Giri was ever refused entry. H~ ~aid that he did not know Shri Ram Krishan Gupta, M.P., neither ,lid he know Shri N.P.C. Naidu. In cross-:~xamination he said th~tt he did not keep visitors book nor vigilance book but he used to make report of his duties to the Superintendent of Police. He never gave the names of those persons who came and visited Shri Giri to the Superintendent of Police. He was unable to giv.-:: the names of the persons who visited Shri Giri on 28th July or 14th August. He explained : "I do nt remember as to who came and on what particular date but I can give you the names whom I saw coming and meeting the President." He said that he read the evidence of Shri Krishna Rao in the press.

We may mention that the evidence of most of the witnesses used to be reported extensively in the press.

The witness denied that his relations with the family mem-H bers of Shri V. V. Giri were informal and added : "we never cul-tivate relations with the family members of the VIP." It was suggested that it would be too hot for him to sit in the verandah or in the lawn but he replied that it all depended in one's training

&nd nature of duties. In cross-examination he said that he did -not know of any case where Shri Krishna Rao or Shri Giri's son refused to allow any visitors to see Shri Giri.

It is not necessary to give further details of the cro~s-examina­tion but we are of the view that his evidence was not shaken by the. various~ questions put to him. There is no reason why we should not place reliance on the evidence of this officer.

The evidence of Shri Mullick, Deputy Superintendent of. ~olke, R.W. 45, is similar. He said that he kept register of his attendance duty and used to submit reports. These were in small bound plain paper register and they used to ·be shown to the S.P. Security, Shri .Marwaha. · He said that the book was misplaced when he shifted in .the month of December to the President's estate. He added that this book was kept for his own r0nvenience; at the time of T.A. bill it was used; otherwise it was 1 no use. It was. not an official ·record 1 He t!len described the places he went with Shri Giri outside Delhi. He described the visits. He was asked how many persons came to see Shri Giri from the 21st of July to 29th of July, and he replied that he wo~ld not be able to tell that exactly, 'but he added : "Roughly about forty people during this period." He further said that during his duty hours between 6 and 7 sometimes 4 to 5 people came every day from August 13 to August 16. He said that among those who visited were Shri Krishna Menon, Shri Bhupesh Gupta, Shri Amar Singh Sehgal and Smt. · Aruna Asaf Ali, and the persons who visited from 21st to 29th July included Shri Jagat Narain. Shri Yashpal, Shri N. C. Chatterjee and few M.Ps. He said that he could not recollect any more. He asserted that Smt. Tarkeshwari Sinha never came during his duty hours.

The learned l;Ounsel has not been able to give any convincing reason why we should disbelieve this officer.

Shri P. Krishna Rao, R.W. 1, is the son-in-law of Shri V. V. Giri. C-243. Defence Colony, was his house, and he said that . Shri V. V. Giri conducted his campaign single-handed from this house, although members of his family assisted him. He said that Shri Girl went on tour on the 29th July and completed it on the 13th of August, 1969, but in between he came for few hours on the lOth and ·again for few hours on the 12th. He gave the same version about the duties of the Security Officers, and the procedure foltowed in the bouse for receiving visitors. He said that Smt. Tarkeshwari Sinha never came to see Shri Giri from the 20th July to the 16th August, and she did not come on the 14th Ammst in the morning. ·He further said that Shri Giri never intervi~wed anybody in the verandah as it was open to the

public gaze and wh!!re the Security Officer and probably the driver or some other clerk would be siting or standing. He further stat-ed that· after Shri Giri returned from his tour on the 13th he was contitmously with him and he was in attendance on him on the 13th, 14th and 15th; only on the 16th he left in the morning and went to the Parliament House to watch the voting. He further de-posed that he knew Shri N. P. C. Naidu and had met him at several places but was not on visiting terms with him.. He said . that he met him ( Shri Naidu) off and on when he went to see members of Parliament from Andhra, and that he first saw. hirn three or four years back at Madras at the house of late Shti V. Rama Krishnan. He denied that Smt. Tarkeshwari Sinha visited sometime in the morning of the 14th, or Shri N.P.C. Naidu came to see Shri Giri at C-243 ·and could not see Shri Giri. He added that ·it was impossible; Shri Naidu would not have been turned away; he never came. ·

Shri Jai Murti Prasad, P.W. 41, who wasone of the gunmen attached to Shri V. V. Giri said that there were three men on duty and they did duty in shifts. He said that he was on duty on the 14th from 2 a.m. to 9 a.m. and after 9 a.m. constable Rain Batta came. He said that he knew Smt. Tarkeshwari Sinha. She did not come to meet Shri Gid while he was on duty. .

Constable Ram Batta, R.W. 59, stated that he was on duty on the 14th August from 9 a.m .. to 6 p.m. He corroborated Jai Murti Prasad that he took over duty at 9 a.m. on August 14.

On this evidence we cannot accept the case of the petitioners that the pamphlet was brought to the notice of Shri V. V. Giri by Shri R. K. Gupta or Smt. Tarlceshwari Sinha or Shri N. P. C. Naidu.

The evidence of .Slui V. V. Giri is corroborated by the Security Officers. Besides, we find it difficult to believe that Smt. Tarkeshwari Sinha would have been treated. in such crude and inhospitable manner. There is evidence that visitors were always off~ red coffee but no coffee was offered· to Smt. Tarkeshwari Sinha by Shri V. V. Giri. The story told by Shri Ram Krishan Gupta does not appeal to us. Why should Shri Giri telephone . Shri Gupta? No previous acquaintance between him and Shri Giri has been established. If it was Shri Giri's election technique we would have expected evidence to be produced that he telephoned number of electors from Delhi. The·.learned counsel for the petitioners said that the witness was an i~portant person and Shri Giri might have been told at Chandigarh that he should contact H. the witness. But we cannot rely on conjectures.

In order to prove connivance on the part of Shri Giri, the learned counsel also relied on copy of letter which Shri Abdul

Ghani Dar is supposed to have sent to the respondent. · Shri Dar deposed that he wrote letter to Shri Giri and he produced copy of it in Court--Ext. P·67. Shri Dar did not address the letter himself but he told his Personal Assistant to put the address of Shri Giri on it and the letter was posted by his P .A. , His P .A. , has not been produced. Shri Dar further said that he enclosed one printed pamphlet in Englisl:. with the letter. copy of this- · was said to have been forwarded to the Prim.e Minster of India, . New Delhi,. and Prof. Humayun Kabir, who is now dead. There is no proof of this. Shri Giri was shown ~e copy of Ext. P-67 and he said that this letter was never received by him. In cross--examination it was suggested that the letter formed part of the .correspondence which was destroye4 when Shri V. y, Giri shifted to Rashtrapati Bhavan. We are of the view ·that it bas not been proved that the letter was sent by Shri Abdul .Ghani Dar ..

The learned counsel then relied on circumstantial evidence ~o prove that Shri V. V. · Giri knew of the distributitm of the pamphlet · and connived at it. The learned "Counsel urged that according to Shri V. V. Giri he conducted the election campaign single· banded arid left the entire work of apprQaching M.P .s to the supporters, and in his evidence also tried to show that be was not associated with the supporters at all. He urged that neces-sary inference which flows from these facts is that the electors who actually supported Shri Giri must have been in constant touck with him. He said that this is the only logical conclusion. We are unable to accede to this contention. Before Shri '-'. V. Giri left for his tour the Congress Party was . against his candidature. By the. time Shri Giri came back to Delhi on the 13th August; much had _already been said and done, and the pamphlet had been ·printed and distributed. There is no evidence that he was con· tacted by any of these alleged supp<;Jrters while he was on tour. The persoJ;lS belonging to the Congress party, now headed by Shri Jagjivan Ram, were themselves vitally interested in the election of Shri V. V. Giri· as it ·had become burning issue between the two ··Congress parties. On this evidence we cannot draw any inference that the supporters must have contacted Shri Girl.

The learned counsel then said that some ·newspapers had carried news about the pamphlet, but there is no evidence that any newspaper printed the whole pamphlet. The pamphlet was re-ferred to in the Hindustan Times, Evening News, dated August 14, 1969, which summarised the letter written by Shri Kanwar Lal Gupta to the Election Commission as follows : ·

. "A Sangh MP Mr: K~:Piwar Lal Gupta, today address-ed Jetter to the Election Commission protesting against the alleg~d corrup~ practices by the Prime Minister, Mrs. Indtra Gandhi, and her Cabinet colleagues in the

I ~ \ )

' ' i .

Presidential poll. He has charged them with pressurising M.Ps. in favour of Mr. Giri. He has also objected to pamphlet circulated among the M.Ps. in which cer-tain attacks have been made on Mr. Reddy."

'f'his news item could escape anybody and, therefore, there is no reason to disbelieve Shri Giri that he did not come across this news item. We must, therefore,. hold that it has .not been proved that there was any connivance on the part of Shri Giri to the printing, publishing or distribution of the pamphlet.

We have ·already said, and we may repeat, that there is no evidence whatsoever that there was any intimate connection bet· ween Shri V. V. Giri and the alleged distributors. What they were doing in this connection they were doing on their own and Shri Giri cannot be held responsible for their deeds unless, of course, it is established that the result of the election had been materially affected by the distribution of the pamphlet. This question we shall now consider.

It is weU-settled that the burden of proving that the result of the election has been materially affected is on the petitioners. (see Vashist Narain Sharma v. Dev Chandra(l); Mahadeo v. Babu Udai Pratap Singh(2); Paokai Haokip v. Rishang([8]); and G. K. Samal v. R. N. Rao(4.). The learned cou'nsel, relying on Surendra Nath Khosla v. Dalip .Singh([11]), urged that this Court should draw presumption, as was done in the case of rejection of nomination pap.er, that the result of the election has been materially affected, from the nature of thr~ pamphlet -and - the manner of its distribution. He further stressed the fact that the petitioners were not in position to compel witnesses to disclose their change of view and say for whom they voted. similar argument was advanced before this Court in Samant N. Balakrishna v. George Fernandez([8]). But the learned Chief Justice rejected it thus :

Court in

"In our opinion the matter cannot be considered on possibility. Vashist Narain's([1]) case insists on proof. If the margin of votes were srrtall something might be made of the points mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned

0) [1955] I S.C.R. 509.

(2) AJ.R 1966 S. C. 824. (3) Civil 'Appeal No. 683 of 1968 decided on August 12, 1968.

(4) Civil Appeal No. 1540 of 1969 decided on January 20, 1970.

(S) [1957] S.C.R. 179.

(6) A.I.R. 1969 S.C. 1201, 1225.

[ 1971]2 'S.C.ll.

SUP.llBMB. CO~T. UPOllTS

.. :&66

· 8y the l'CQWning candidates also sufficiently huge. 1'bete il DO reason. therefore,· for reasonable judicial gueas. The law requires ·proof. . HQ'W far that proof should go or what it should contain is not provided . by the legislature. In Vashis(s case and in lnayatulltlh v. Diwanclum,d Mahajan (1) the. provision was · ~ to prescribe an -impossible burden. The· law has however remained as before. W~ are bound by the ruling Qf this Court and must say that the burden has not been successfully discharged. We cannot overlook the rulings. of this Court and follow the English rulings cited to us/'

The learn~ counsel invited us to overrule th\s decision. It is too late in the day to do this. . This view was t~ken very eady by various Election Tribunals. It was observed in Rai JJahadur Surendra Narain Sinha v. Babu Amul;yadhone Roy([1 ]) :

"In the direct form in which provision is made for this matter in paragraph 7 ( 1) (c) of the Order. there · is no scope for -interference on the ground that in the opinion of the Commissioners the· result of the election might have been affected by the irregularity. This view ·has been taken in respect of similar provision to that laid down in paragraph 7 ( 1) (c) in three cases re-ported in Hammond's Election Cases ( 1936 edition), namely, in Bulandshahr District (East) 1921 (rage· 219), Lahore City (M) 1921 (page 469), and Patna West (N.M.R.) 1927 page 535).

Then the. Commissioner goes on to say that "it may be that in · some circumstances the provision in this rule may operate harshly, where tribun<ll may feel that the result of an election may well have been affected by serious irregularity, but it may be impossible for the petitioner to establish this positively; but 1we have to interpret and follow the rule as it stands.'

Parliament, knowing of the ·views held by various Commis-sioners and Judges·, have failed to intervene, and it is not for us to legislate.

Let us then see if the petitioners have been able to affirmati-vely prove that the result of the eLection was materiaJly affected by the distribution of the pamphlet. They sought to prove this by showing what the impact of the pamphlet on various electors and their reaction was. The reactions, as is to be expected,

{I) 15 E.L.R. 219.

{2) Doaba's Indian Election Cases (1935·1950) Vol II; p. 368-378.

varied greatly in its intensity. The witnesses describe it variously: "It was in bad taste, very derogatory; it was dirty, scandalous, extremely bad, pernicious, contemptible, character assassination, horrible, vulgar and scurrilous, false and malicious, foul and filthy, unpleasant and foul." Sht:i Madhu Limaye, M.P., though~ that it would affect the chances of his candidate, Shri Giri. Shn Kanwar Lal Gupta, M.P., was in doubt what to do and what not to do. Shri K. S. Chavda, M.P., said that he changed his mind. Shri N.P.C. Naidu, M.P., concluded that members would not vote for Shri Reddy. Shri Shiv Narain, M.P., frankly stated that though he thought that 'such man should not be the President, yet Shri Rama Reddy convinced him that the pamphlet was totally false and he abided by the decision . of the Congress Party Board. Smt. Jayabehn Shah, M.P., felt perplexed right upto the date she cast the vote but failed to positively assert that she voted for some other candidate because of the ~amphlet. Shri N. N. Patel, M.P.; said that he changed his attitude after reading the pamphlet and adhered to it till the last moment. Shri Mohan Lal Gautam, M.P., does not disclose how he voted .. Neither does Shri S. Supakar, M.P., disclose how he. voted, although he felt very sad on reading the pamphlet. Shri C. D. Pande, M.P., said that although his faith in the uprightness of Shri Sanjiva Reddy was shaken, it did not affect his vote. Shri P. N. Deb, M.P., felt very much prejudiced against Shri Reddy but did not say tha.t he voted against him because of this pamphlet. Shri Hukam Chand Kachwai, M.P., member of the Jan Sangh, said that at that time he thought the allegations foul and they did influence his mind, but failed to say who he voted for. Shri Suraj Bhan, M.P., deposed that ·the pamphlet, so far as he was concerned, affected the directions which had been given by his leaders. Smt. Pushpabehn Mehta, M.P., does not say that the pamphlet affected her vote. Shri Morarji Desai, M.P .. described the im-pact on his mind thus :

"This would affect an average voter against Shri S. Reddy adversely, because the contents are so shock-ing ~nd in this country people believe many things with-G out going into them, especially wrong things are be-lieved more easily."

Shri Shri Chand Goyal, M.P., admitted that "it is not I that exercised my franchise guided by it." The impact on Shri Ram Krishan Gupta was totally different than intended. He said that after reading the pamphlet "I became stronger supporter of Shri Sanjiva Reddy because I thought such like postets are not good and should not be issued." Shri R. Muniswamiah, M.L.A.. sai<l that the contents prejudiced his mind, and he could not risk

(1971] 2 S.C.R.

not to believe them, but did not disclose how he voted. He, however, admitted that he is loyal Congressman and has adhered scrupulously to the directives of his party. Shri S. Nijalingappa said that the pamphlet "'"luld adversely affect Shri Reddy's chances of success. Shri J.~: S. _Gurupadaswamy, M.P., did not say that the pamphlet affected nim. although "the motivation was to defame the candidate Shri Sanjiva Reddy and jeopardise his chances of being elected as President." Shri D. S. Raju, M.P., said that he was shocked by the pamphlet but he had' always been loyal Congressman and scrupulously abided by the direcr tives of the party. Shri Patil Putappa, M.P., felt whether he would be doing the right- thing by voting for Shri Sanjiva Reddy after reading the pamphlet but admitted that he had always been disciplined and loyal Congressman and loyal to the directives of the party. Shri Sher Khan, M.P., did not believe in the truth of the allegations in the pamphlet as he had known ihri Sanjiva Reddy personally, but felt that tposo persons who did not know Shri Sanjiva Reddy _ might be affected by the pamphlet. Chaudhary A. Mohammad, M.P., said that the pamphlet difi affect his mind but h.e did not view his decision in that light, being loyal soldier of the Congress. Shri C. M. Kedaria deposed that after reading the pamphlet he could not risk voting for such candidate for such high post. Whether he actually voted for Shri Sanjiva Reddy or not is anybody's guess because neither side asked him that question. Shri N. Sri Rama Reddy, M.P., one of the petitioners, had known Shri Sanjiva ~y for -E the last 35 years, and was his counting agent. It is not suggested that his vote was affected by the pamphlet. Shri Abdul Ghani Dar, M.P., petitioner, stated that after the pamphlet was read out to him he thought "that country was sinking and extreme danger has been posed to the democracy." It is, however, quite dear from his evidence that he did not believe that Shri Sanjiva Reddy was debauch. We have not referred to the evidence of electors from U.P. who deposed to meeting Shri Dinesh Singh at Lucknow because, as will presently · appear, much reliance cannot be placed on what they .say.

It will be evident from the above analysis of the evidence that apart from two witnesses it is not certain whether the others were so affected by the pamphlet that they changed their mind. Then there are witnesses who say that there was no effect on their vot-ing, either because they knew Shri Sanjiva Reddy or did not believe the allegations or that they were loyal and disciplined members of the Congress Party. Five witnesses were strongly prejudiced but they do not say that this prejudice finally affected their voting or not. Two remained sad or disgusted but failed

to disclose. whether it had any affect, on them. One thought that the party directive was affected. Apparently he was not per-iooally affected. One witness became :: rirm supporter of Shri Sanjiva Reddy because of the pamphlet. Some witnesses opined that others would get affected, which evidence cannot assist the petitioners in any manner.

On this -evidence it is difficult to hold that the petitioners have proved that the publication and distribution of the pamphlet materiallv affected the result of the election. It only leads to the c~mciusion that it probably did have some effect but the vast . majority of the electors were able to throw off the effect of the pamphlet and vote according to their own personal wish or according to ·the mandate of their party.

There is ·evidence that there was great deal of talk about the pamphlet. There was time before voting for the electors to exchange views about the pamphlet and ascertain the truth. Shri Sanjiva Reddy had been the Speaker ·of the Lok Sabha and was well-known and leading political personality

There were various other issues exercising · the minds of electors, particularly belonging to the Congress party. If in spite of all these factors some were unduly influenced in their thinking, it was for them to come and say so. There was no landslide against Shri Sanjiva Reddy. Two hundred and sixty eight members of Parliament gave him the ·first preference. Ninety two members of Parliament, who had given first pref-rence ~o Shri C. D. Deshmukh, gave second preference to Shri Sanjiva Reddy. It is, however, true that if 26 more members of Parliament had voted for Shri Sanjiva Reddy, instead of Shri Giri, th.e former would have been elected.

Therefore, on the evidence before us, it is impossible . to sus-tain the contention of the petitioners. In the result we hold that it was not been proved that the result of the election was ma-terially affected by the publication and distribution of the pam-phlet. .

The learned counsel for the petitioners urged another i>oint in order to impeach the validity of the election. It was said that Shri Dinesh Singh, then Minjster for External Affairs, visi-ed Lucknow somewhere round about the lOth of August and exe~cise<! undue_infiuenc~ on var~ous memb~r~ of U.P. Legislature. Shn Dinesh Smgh demed havmg ever VlSlted Lucknow round about that time. He said that \J,e did not go to Lucknow till after the polling date. number of witnesses have been pro-duced on behalf of the petitioners to establish the visit of Shri Dinesh Singh to .Lucknow.

fl971] 2 S.C.~.

:.!iu SUPRE\lE COURT REPORTS

Shri 1,3ansi Dhar P;mdcy. M.L.A., U.P., ~.W. 18, deposed 1·e-~ardim/ Shri Giri\ vi-.it to Lucknow. He said that ·shri Dincsh Singh -came io Unar Pradesh for canvassing for Shri Giri, met hin) and -had talk. He deposed : ··He held ::1. me~ting of the leaders in Block. I was also there. He told i.1s that we should supp{)rt Mr. Giri... He added : ··He s<tiu we should support Mr.· Giri tll1d thus we ~IHHJid support Prime Minister's view; she be-Jonos'lto t': our St;ltc:·· Accordin~ .... to him ~ Shri Dincsh Singh then said : -··tf we do not suppnrt _th.: can~litlature or Mr. Giri, we will not get Central p~1tronugc <ind we, would ·not get the support of the Prim~ Minister in, the generul eledions nnd we would not get the party ticket\ i1~ the elections." ·He d_cposed to the receipt of the pamphlet hy p(.1Sl. This examirl6tion took place before us on the 25th F:!bru<u·y. 1970. and the learned counsel for the ~espondent at thut stage did not·put any question in cross-ex-ami-nation tq suggest that as matter of fact Shri Dinesh Singh never visited Lucknow. Jt appears'that the persons in charge of preparing Shri Giri's case had by then not co111e in contact with Shri Dinesh Singh and sould not ~scertain- whether he had as matter of fact gone to L1.1cknow.The next witness, Shri Ram Singh, M.L.A., U.P., P.W. 19, gave evidence ilf the same strain. lk said that four or five days after. Shri Giri~s visit Shri Dinesh Singh came to Lucknow·. -He also stated that Shri Dinesh Singh said that "if you vote to Mr. Reddy, y<;>u will be in difficulty because Central support will not be giv.en to you, the party candidature will not be given to you, partrohage of the Central leaders will not be given to you." This evidenc~ was also .given on ·the 25th February, and :no questi~n was :asked in cross-examination to suggest that Shri Dinesh Singh did not visit Lucknow during this period.

Shri Jagdish Prasad, M.L.A., U.P., P.W., 20, .als6 gave evidence to the effect. Shri Basant Lall Sharma, M.L.A., P.W. 22, also s~d that Shri Dinesh Singh visited' eight or nine days be-fore the polling date .

. Shr~ Rajez:dra P.rapat Singh, M.L.A., P.W. 21, deposed that Shn Dmesh Smgh came .~o Lucknow .seven or eight 'days before the polling and he .met hi,m and others in block of the Coun-cfllors' Residence. According to him Shri D:inesh Singh told him that "it is the desire of the Prime Minister that don't vote fo: the. o.ther candi~ate." The witness further deposed that Shri Dmesh Smgh told hun that he had come to know from Shri Giri that "I was not prepared to vote for Shri Girl." According to the witness by "th~ other candidate"-Shri Dinesh Singh meant Shri ·Reddy, t_he Congress can~li~ate. Shri Dinesh Singh is further ulleged to have told the wxtness that the "Prime Minister is

great leader of the party and her wishes altro fell within the diJ-cipline''. Shri Dinesh Singh . is further alleged to have poilltod to the witness that the witness came from Rai Bareli which was Prime Minister's constituency and great help was received from her in election. The witness understood this to mean that if he voted against the Prime Minister then the help available to him· from her would not be available.

Sbri Ram Pyare Panika, M.L.A., P.W. 37., who was examin· ed on March 2, 1970, gave similar evidence as the earlier wit· nesses from Uttar Pradesh. He said that Shri Dinesh Singh visit-ed Lucknow about 9 or 10 days before the polling but· he could not give the exact date. He said that Shri Dinesh spent two or three days in Lucknow but he could not say where he stayed. To the question : "How do you know that he was there for two or three days?", he replied : "Because he met me once and some friends of mine told me that he also met them two or three days after that." He wa~ a~kea : "Now look here I put it to you that Mr. Dinesh Singh never visited Lucknow between the lst' and the 16th August and that what you have said is untrileu. He an~­wered: "He visited Lucknow and he met me." Other questions were al~o asked.

This is the first occasion that questions were asked with view to establish that.Shri Dinesh did not visit Lucknow between the 1st and the 16th ..

The next witness, Shri Abdul Salim Shah, M.L.A., P.W. 38, also deposed that Shri Dinesh Singh came about week before the poJling day and he saw him (Shri Dinesh Singh) at Daruls-hafa where Shr~ Dinesh Singh addressed the people. He further told that Shri D~nesh Singh talked to him individually. In cross-examination he saitl that the did not· know where Shri Dinesh Singh was Jiving or where he stayed. He met him oJily · flnce at Darulshafa about noon. He could not remember the names of persons who were present when Shri Dinesh Singh had conVer· sation with him but ultimately said : ''Dr. Sia Ram. Th. Mehram . Singh, Mumtaz Khan, Abid Ali, Jogeshwar Dayal and many others.'' To the question : ''I put it to you that between the first of August and the 16th of August Dinesh Singh never went to Lucknow and you could not have met him," he replied: ''No. I met him and he came to Lucknow." ·

The next witness on this point is Shri Mumtaz Mohd. Khan, M.L.A., U.P., P.W. 44, He also gave similar evidence and he _ said that Shri Dinesh Singh came to Lucknow a.bout a. ~eek . before the Presidential election and met him. He descrilied the talk which he had with Shri Dinesh Singh. ln cross-examination he said that Shri Abdul Ghani Dar came to Lucknow after he had 6-L308Sul). CI 171

filed the petition and stayed in 24B Block in Darulshafa, very near 23 Block in Darulshafa where the witnesses was staying. When pressed to remember the names of persons who were present when Shri Dinesh Singh addressed the meeting, he ventured the names of Shri Kamlapati Tripathi and Shri Jagdish Gandhi, and added that perhaps Shri Abdul Salim Shah was' also there.

As we said before, Shri Dinesh Singh, R.W. ~. said that between the beginning of August or rather after his return from abroad on 18th July, and the 22nd of August, 1969, he . never went to Lucknow and he was in Delhi right upto the 2nd August. He said that his Secretary keeps th~ Jiary of his engage-ments and consults him before making any appointment unles~ he tells the .Secretary :thead that someone is going to see him. He said that whenever he goes out, whether on an official or private tour, tour programme is issued, and it is indicated in the tour programme whether the visit is official or private and it has the list of people to whom it is circulated. He further stated that. whenever he goes to Lucknow he stays with the Governor in the Raj Bhavan or in the State Guest House and he usually goes by train and sometimes by pl~tne.

The diary kept by the Private Secretary was produced and .shown to the counsel for the petitioners, and the witness was -cross-examined in det:Iil about the diary and the way it is main-tained. To the question : "I put it to you that you were in Luck-now on Sunday the lOth August", he an:;wered :" No. it would not be correct because I did not go out of Delhi."

This date was apparently chosen by the learned counsel be-cause in the diary the page of August 10, 1969, was blank. It was further suggested that the witness perhaps went by car to-wards the evening of 9th and reached Lucknow by the morning and then proceeded to Partapgarh for three ho).lrs and then back to Lucknow by 12 0' clock, and after spending six or seven hours in Lucknow he took the car and came to Delhi. To this suggestion he said that the distance between Delhi and Lucknow involved very long journey. He added : "This is hypothetical question in respect of time and I would have to be more sure about it." The witness further said that he though• that he attended tea party at Mysore House given by the then c.. overnor of Mysore on August 10. We will presently show that uis ver-sion of his attending the party on August 10 is con oborated by other evidence.

The respondent also produced number of M.L.As. from U.P. to prove that Shri Dinesh Singh did not visit Lucknow between the 1st and the 16th. ·They are Shri Syed Ali Zaheer, · M.L.A., R.W. 9, Shri Genda Singh, M.L.A., R.W. 12, and Shri

lf. N. Bahuguna, R.W. 28, who was the General Secret:u:y the U.P. Congress Committee in 1969. Shri BahUQ"l ! ~r\ :...iJ that Shri Dinesh did not visit Lucknow before the poH in August. He said that he knew it for certain that Shri Dinesh Singh did not visit Lucknow between the 1st and the 17th August because had he visited Lucknow he was sure to hear from Shri Dinesh Singh. · The witness added : "He is kind friend who keeps me in-. formed of his tour programme ev~o here. 1 always receive his I tour programme and, therefore, if he had come to Lucknow I would have surely got his tour programme through dak or if it was hurried programme telephonic call that Mr. Dinesh Singh will be in town and in view of my plastered leg, if he were to come to Lucknow he would have certainly visited me as he did before." It was put to him : "If I say that Mr. Dinesh Singh did visit Lucknow between the 1st of August and the 14th of August, will it be correct?", he answered : "Totally jn~ correct'~

Shri Abid Ali, M.L.A., R.W. 33, deposed that he had not met Shri Dinesh Singh personally. He was asked : "Mr. Abdul Salim Shah has deposed before this Court as witness and stated that Mr. Dinesh Singh came to Lucknow in August '69 and you were present alongwith him and others when Mr. Dinesh Singh and he had conversation. Is it correct ?" He answered : "No it is quite wrong." He stuck to this position in cross-examination. Shri Rao Rafay Khan, M.L.A., R.W. 37, said in cross-examination that he could not say whether Shri Dinesh Singh went to Lucknow or not and he said that he had not yet met Shri Dinesh Singh. Further he did not hear of Shri Dinesh Singh go-· ing to Lucknow in the month of August.

Shri Kamlapati Tripathi, R.W. 61, who was the President of the U.P. Congress Committee at the relevant time also stated that he was in Lucknow between the 1st of August and the 16th of August and that during this period, as far as he could recollect, Shri Dinesh Singh did not visit Lucknow. He further said:· "Usually when he comes to Lucknow, he gives me ring that he js coming to Lucknow, and after reaching Lucknow he informs ~e of his arrival there." The evidence of Shri Mumtaz Mohd. Khan, R:"Y· 44, whom. he knew, regarding Shri Dinesh Singh's alleged VISit to Lucknow was put to him where he had said that Shri Kamlapati Tripathi was one of the persons present in the meeting; the witness replied : "No meeting was held. Neither I was present anywhere. This is false statement.'' Shri I. K. Gujral, R.W. 40, attended Shri G. S. Pathak's party on Sunday the 1Oth August and produced letter dated August 9, 1969, signed by Shri G. S. Pathak and addressed to Shri I. K. Gujral, inviting him to tea at Mysore Bhavan. Shri

Gujaral said that Shri Dinesh Singh was present there alongwith some others, including Shri Om Mehta, Shri K. C. Pant, Dr. Ram Sub hag Singh, Shri M. P. · Bhargava and few others, and also Shri Kanwar Lal Gupta, M.P.

Shri G. N. Mathur, R.W. 14, who has. br.en in the govern·· ment service for the last 30 years and was Private Secretary to . Shri Dinesh Singh said that he fixed up appointments and tour programmes and looked after coordination work in the Minister's office. He had been Private Secretary to Shri Dinesh Singh since 1962. He produced the diary of 1~69 and said that it had been kept by him and the name of the diary was "Rampart Index Diary by Thakar & Co." This particular diary was supplied by the Ministry of Commerce when he was there and when Shri Dinesh Singh was Minister of Commerce. ·He also produced the diaries of 1966, 1967 and 1968. It is not necessary to go into· his evidence in detail but it is quite clear from his evidence that he keeps the diaries in regular manner and it may be that sCime· time he may rub out or score out an engagement which has been cancelled, .otherwise most of the engagements are put in the diary. He then gave. the procedute for making tour ,prog· ramme. He admitted that if some appointment is made by the Minister at his house and the Personal Assistant who attends the house does not inform him abOut it, it would not be found in the diary. He was asked: "If the Minister gees out on tour out of Delhi, is there any entry in your diary ?'' He replied : "Some-E times I do make, but I keep tour register and it is used for tour . purposes." He was asked : "If he (the Minister) decides to go on tour, let us say, suddenly in the evening, will tour prog~ ramme be issued?" He· replied : "If it is possible. We will contact the District Magistrate of the place he is visiting to in· form him that the Minister is arriving at that place, by telephone. · If the Minister is likely to stay there for day, we issue prog~ ramme, although it is afterwards." He was asked : "If he is coming back immediately, no programme will be issued?" He replied : "No. But it is my responsibility to inform the Dis-trict Magistrate that he is coming."

The witness produced file containing the tour programmes between the 22nd of February, 1969, and the 22nd December, 1969. He said thafif the Minister changes his route while he is on the way, theti if he gets information he would issue revised programme.· He pointed out that according to the schedule date of return the Minister was supposed to return on Saturday, the 19th July, but he returned in fact on the 18th July, day earlier, and he issued revised programme on the 17th of July. After looking up the tour programmes file he said thar Shri Dinesh Singh went to Lucknow only on the 22nd August and he then

went by plane and returned by plane and the tour programme was issued.

In cross-examination the learned counsel for the petitione~ tried to show that the diary was not absolutely complete. In reply to the learned counsel the witness said : "So far as the prior engagements are concerned, if an· engagement hao; not been fulfilled, either it would be rubbed off or scored out, but what-ever engagements appear in the diary, tlley would indicate they have been fulfilled." He further admitted that he did not always score out the entry specially in the case of the national days of the Embassies, because he had to inform the Chief of Protocol that the Minister would not be able to attend the reception and he has to explain the Minister's inability to attend to the Am-bassador concerned. He added : "1)Ierefore, to remind myself, I do not cancel such type of entries from the diary." The wit-ness further admitted that the tour programme consisted of loose sheets tagged 'together as these programmes were cyclostyled and they are not entered in any bound register, but he said that when T.A. bill is prepared it would indicate the visits of the Minister. He denied that any second diary was maintained at the residence under the control of the Personal Assistant. He further said that even if the Minister wants to go and meet someone out of Delhi in his personal capacity,, as matter of security if the security man is informed then he will accompany him and even if he goes to picture the security man would sit outside the picture house.

We are satisfied that nothing has been brought out in cross· examination which would dest'roy the evidence of the Private Secretary that most of tbe engagements of the Minister appear in the diary and whenever he goes out tour programme is framed and issued.

Shri Ram Nath Singh, constable, R.W. 36, who had been attached to Shri Dinesh Singh for security purposes as guard for the last four years was posted at Shri Dinesh Singh's residence. He said that there was no ·iimit to the time he served as guard at time but usually it was for six hours. He described the pro-cedure by which the revolver. and the cartridges are transferred to the man who comes on duty. If the Minister goes out of Delhi for more than 24 hours the revolver and the cartridges are deposited in the security line. When the Minister is away the gunman still attend the house. He produced the Roznamcha which was maintained in the year 1969 and he said that he would make an 'entzy in the Roznamcha as to whether Shri Dinesh Singh was in Delhi or not. He showed the entries from the first of August to the 16th. He pointed out ¥arious entries. The first entry was dated 11th August. This entry would show that

the Minister spent the night of the lOth in·Delbi. Various sue~ entries were pointed out. He was asked to see if there was any-thing to show that the Minister was not in Delhi during this timet and he answered : "There is no entry showing that he was away from Delhi." The counsel brought out the entries on the 22nd of August to show that an entry was maae when Shri Dinesh Singh went to Lucknow. In the entry it is recorded inter alia that "at 7 a.m. the Minister is in the house". The entry at 3 0' clock · shows that "the Ministe,r started for Palam Airport; he would go by plane from there to Lucknow. Signed Ravi Bhan Singh." He stated that the gunman on duty went with the Minister upto Palam airport and stayed there till the plane took off and that was why he would know that he was going to Lucknow by plane.

Nothing useful was ~rought out in cross-examination and we are satisfied tl;lat the Roznamcha was kept in the regular course of duty and the entries in it support Shri Dinesh Sin~h's version that he did not go to Lucknow on the lOth August, or . between the 1st August and the 16th August. If there had been any truth in the version given :by the petitioners it would not have been difficult for them to produce evidence either from the railway records or the records of the Indian Airlines to show that reservation was made on beha,lf of Shri Dinesh Singh and he travelled to Lucknow and back. Further in those days the local papers, if not the national papers, would at least have carried some news items about thr visit of Shri Dinesh Singh to Lucknow as it was visit alleged to be for election purposes, and accord· ing to the petitioners he had met number of persons openly. Further the evidence of the petitioners' witnesses does not fix the date of the visit. It was the blank page in the diary which led to the suggestions about that day in cross-examination.

We are satisfied from the evidence which we have extracted above that Shri Dinesh Singh did not visit Lucknow on the 1Oth of August or any other day thereabout and the case of the peti· tioners that Shri Dinesh Singh visited "Lucknow is not true.

We have already mentioned that it was alleged in the petition that Shri V. V. Giri repeatedly stated at various places that "a man of character and integrity should have been selected" and he, in well-guarded language, was stating that Shri Reddy was not man of character. Shri V. V. Giri denied these allegations and stated thaJ thro•Jghout his statements he , adhered to the stand as candidate for the office of the President. The petitioners pro~ duced 8 witnesses to substantiate this charge. It is common ground that Shri V. V. Giri visited Lucknow during his election · tour-:-Lp.cknow was his first halt-and addressed meeting at

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Datulshafa. There is dispute as to ·what Shri Girl said at ·the meeting and as to whether he met M.L.As. individually· or in groups. The eight witneSses mentioned are : Sbri Bansidhar Pandey, P.W. 18, Shri Ram Singh, P.W. 19, Shri Jagdish Pershad, P.W. 20, Shri Rajendra Prasad, P.W. 21, Shri Basant Lal Sharma, P.W. 22, Shri Ram Pyare Panike, P.W. 37, and Shri AbdUl Salim Shah, P.W. 38. These witnes~ also deposed to Shri Dinesh Singh's visit to Lucknow and we have disbelieved their · version. In these circumstances we must view their evi-dence with extreme care and caution. It will be noticed that the witnesses have given different ver-sions as to what Shri V. V. Giri said. Shri Bansidhar Pandey, P.W. 18, Shri Jagdish Pershad. P.W. 20, and Shri Basant Lal Sharma, P.W. 22, said that Shri Giri told them that they should vote for him in the Presidential election. P.W. 19, Shri Ram Singh's version was : "At that time he asked us that I am the' candidate of the Prime Minister and I must be voted for the Presidential· Election and she has supported him and therefore I must get the votes." Shri Ram Pyare Panike, P.W. 37, struck different note. According to him Shri V. V. Girl said: ~'He told us that we should vote for him because he told us that he was also the Governor of other States and he was also Vice-President So he told us that man lie him should be voted and we should vote in favour of Mr. Giri." He· further deposed that after the meeting he and three or four M.L.As. met Sh:ri Girl separately and he told them the same thing and in addition said : uu you want to progress India man like me should be voted.'' ·

P.W. 38, Shri Abdul Salim Shah's version is that Shri V. v. Girl said that he had been the Vice President and also Governor on behalf of the . Congress and ''I have spent the whole of · my life in the Congress in the companionship with Mahatama Gandhi. I deserve it more that I should be elected as the President of India.'' He added that at personal meeting along with Shri Mumtaz Khan Shri Girl asked us whether we should vote for him.

The last witness on this point, Shri Mumtaz Khan, P.W. 44, gave the most detailed version. According to him Shri Giri "appealed to the members of the Assembly to vote for him. He said that he has -held very high offices. He was the Vice-Pre-sident of India. H~ was also the Governor of U.P.; he has been doing social service all throughout his life and he was very fit candidate for the Presidentship of India. Besides this, he said that the other candidates are not as good as he is. Besides, he also said this thing that the Congress had done great blun-

der in nominating Mr. Sanjiva Reddy as its candidate. He sai.d. all t~eSG things." At personal meeting with him and two or· thr~ friends, according to this witness, Shri Giri [14]appealed to uS"" ~hat you vo~e for me a~d,_besides this he said that Sanjiva Reddy lS not su1table candidate. There are so many spots on his· character_ and t~e <;ongr~ss High Command has done great blunder m nommatmg h1m as its candidate. Besides this he said you see my services and all these things." '

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It will be noticed that Shri Mumtaz Khan, P.W. 44, is the only witness who stated that reference was made to Shri Sunjiva Reo.Jy, and Shri Ram Singh, P.W. 19, is the only witness who men~ioned that reference was made to the Prime Minister.

Shri Daphatry, the learned counsel for the respondent, put ·,all .the above statements to Shri V. V. Giri. Shri Git:i categori~ cally denied meeting M.L.As. individually or in small groups. He said that aU his addresses were on the basis of the statement :that.he issued on July 13, 1969. He stated that at no stage he said that he was supported qy the Prime Minister either at Luck~ now or elsewhere. He fuJther deposed that he never referred . to . to the "other candidates" and whatever he stated was about his own qualifications. He denied having referred to Shri Sanjiva Redcly and also denied having ever said that Shri Sanjiva Ri!dQ.y was not suitable candidate, and further, according to Shri Giri. it was absolutely Jalse that he said that "there are so many spots ()D his character and the Congress High Command has done great blunder in nominating him as its candidate." He admitted that he said about himself, his qualifications, but there aho he was very guarded.

Shri Git:i categori~ in small groups. at no stage he at Luck~ stated was about his Ri!dQ.y so many spots

On the respondent's side Shri Shivanand Nautiyal, M.L.A .• R.W. 26, supported Shri Giri's version of the meeting~ Shri Nautiyai aQ1nitted that he was an active supporter of Shri Giri. Ac~ordihg to him, Shri Giri said that he was an independent candidate and told everything about his work and not.hing more: in particular he did not, in the course of what he sa1d, refer to Shri Sanjiva Reddy, nor did Shri Giri say that he was Shrimnti Indira Gandhi's candidate. According to the witness, after the meeting Shri Giri left, accompanied by 17 or 18 people. and that no talk took place between them and Shri Giri. In cross-examination he stated that Shri Giri talked about his work and his visit to many countries and he explained everything but did not discuss political issues with them.

Another witness, :Shri Ashraf Ali Khan, M.L.A., R.W. 27, gave an account ol Shri Giri's. talk to them. He said : "He talked about his candidature that he was seeking his election as .an independent candidate, because he considered that the post

of the President was of such stature that non-party man should seek election, and that he had always stood for the common man and worked for him throughout his labour move· ment, and he was seeking the vote of all persons who believed in the ideology of the common man." He further added that not single word was said about Shri Sanjiva Reddy or that he was candidate put up by Smt. Indra Gandhi. The witness admitted that he was elected on the Congress ticket; he only went to the meeting because it was held in the hostel compound. He said that other congressmen also atended the meeting because it was held in the hostel. The statement of Shri V. V. Giri, dated July 13, 1969, is ex· nibited as P. 66A. Our attention was invited by the learned counsel for the petitioners to the sentence in the statement : "I would only say that the candidate selected for the highest office should possess character, integrity, patriotism, experience, record of service and sacrifice. I feel in all modesty I could claim to have these attributes in some measure." We are unable to appreciate how this sentence makes it probable that Shri Girl would mention · Shri Sanjiva Reddy and say something about his character at Lucknow. Another passage in the statement which was pointed out was : "The highest office of the land must be one that is above party politics. While the majority party has every right to choose its nominee, in democracy care should be taken to see that the candidate so selected enjoys, as far as possible, the confidence of other groups also. I am deeply pained by the recent events that have tended to lower the dignity and moral authority of this august office." We are again unable to see how this makes it more probable that Shri Giri would attack the character of Shri Sanjiva Reddy at Lucknow.

Further, on August 1, 1969, it was not definitely known whether Smt. Indira Gandhi would support the candidature of Shri · Giri. There is no evidence of Shri Giri · having met the Prime Minister except on July 20, 1969. Shri Giri said that he had not spoken either to the Prime Minister or to any Minister before he announced his candidature. He further stated that he saw the: Prime Minister on July 20, 1969, when she came to see him at ceremonial function when he was· leaving the Rashtra· pati Bhavan and she had come to say "good·bye" and he said "good-bye" to her. He categorically stated that they did not meet each other any time between the 20th July and the 16th August, 1969.

We are of the view that Shri Giri's version is· preferable to the version given by the petitioners in so far as there is any con· flict, and therefore we hold that the allegations made in the p.eti· tion in this respect have not been substantiated.

We may next deal with the allegations in paragraph 13(c) (iii) of the petition to the effect that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem threatened Muslim voters that Shri Sanjiva Reddy was in fact candidate of the Jan Sangh Party and that if he was elected the fate of the Muslim, community in India will be in danger and in constant threat of extinction. An instance was given of the conversation which took place between-Shri Yunus Saleem and Shri Abdul Ghani Dar, petitioner. The following particulars were supplied regarding the allegations in this sub-para :

The particulars stated above were stated to be true to information received by Shri Abdul Ghani Dar from Shri A. Mohammad, M.P., and Shri Sher Khan, M.P., and were believed to be true to his knowledge in so far as they related to himself.

Shri Sher Khan, M.P., P.w.· 51, deposed that perhaps on the morning of August 11, 1969, Shri Fakhruddin Ali Ahmed rang him up and told him on the telephone that all Muslirils to-gether will vote for Shri Giri and that he should side with them. The witness replied that "I am man of the Organisation and as an old Congressman I cannot move away from the official candidate and vote for another." Shri Fakhruddin Ali Ahmed then told the witness :

"He told me if I want to go along alone I could do so but they all together have unanimously decided to support Mr. Giri. You, may do whatever you like alone, but I may remind you of one thing that with the return of Mr. Sanjiva Reddy on election would be pos-ing danger for the Muslims and also for the Muslim Community, there is compromise between him and the Jan Sangh. In future it is possible that he may obliterate the names of the Muslims."

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The witness in reply said that he could not ag~ee. . The witness further stated that nothing more was said on the telephone and Shri Fakhruddin Ali Ahmed said that they shall meet in the Central Hall. The witness further deposed that Shri Fakhruddin Ali Ahmed met the witness at noon time -in the Central Hall on the same day, and is alleged to have said, inter alia, that "as the entire ruling party is supporting Mr. Giri1 you will not be put in future either on the Delegations, or on the Committees or in other Nominations."

Then the witness deposed that Shri Yunus Saleem gave him ring on the same day and repeated almost the same thing and further Shri Yunus Saleem met him in the Central Hall and said : "If I am differing from him, I might vote for Mr. Reddy. In that case that will not be good for me in future." In cross-examination he said that before he gave his evidence in Court he did not have any conversation with Shri Abdul Ghani Dar or anyone on his behalf about what the witness was going to depose to in this Court. He, however, said later that he had informed Shri Abdul Ghani Dar about the. conversation which the witness had with Shri Fakhruddin Ali Ahmed on the telephone, and similarly he informed Shri Abdul Ghani Dar about the entire conversation which he had with Shri Yunus Saleem .. He denied the suggestion that Shri Fakhruddin Ali Ahmed had no conver-sation with him in the Central Hall and he also denied the sug-gestion that Shri Yunus Saleem had no conversation with him on the telephone or in the Central Hall. He further said that he had told Shri Mishra, who is the leader of the Congress Party in the Rajya Sabha, about what Shri Fakhruddin Ali Ahmed had told him.

It will be notict!d that in the particulars Shri Sher Khan is not stated to have met Shri Fakhruddin Ali Ahmed in the Cent· ral Hall and it is not stated that Shri Yunus Saleem had tele-phoned to him.

Chaudhary A. Mohammad, M.P., P.W. 52, deposed that Shri Fakhruddin Ali Ahmed telephoned him on the 10th or 11th of August and told him : "It has been decided to support Mr. Giri in the election and also that in this the Muslims stand to gain and if Mr. Sanjiva Reddy wins the interest of the· Muslim community will be in danger." The witness plainly told Shri Fakhruddin Ali Ahmed that he was soldier of the organisation and he could not go against the decision of the Congress. He then added that he was with Shri Sher Khan when Shri akhruddin Ali Ahmed addressed Shri Sher Khan and was say-ing that "they had decided to vote for Mr.' Giri and therefore we should obey this final decision and also that this was in the inte-rest of the Muslims." According to the witness Shri Fakhruddin

Ali Ahmed was threatening Shri Sher Khan by saying: "We distribute tickets and that he will not be given any ticket and that he was retiring." We may mention that Shri Sher Khan was due to retire from Rajya Sabha as Member on April 2, 1970.

Regarding Shri Yunus Saleem the witness deposed that he met Shti Yunus Saleem at breakfast and talked about the .election and Shri Yunus Salee~ said the same thing but he did .not ,talk to him on the telephone about the election. He further .stated that he had met Shri Yunus Saleem number of times in the Rajya Sabha lobby· and in the Central Hall and they talked .about election and the reasons· that Shri Yunus Saleem gave for supporting the respondent were that "if Mr: Sanjiva Reddy is -electe~ the .government will be upturned and that Mr. SanJlV& . Reddy w~s very bad man. And there. were some pamphlets which he had distributed copy of which was given to me also." He denied the suggestion that there was ilo talk between him and Shri Yunus Saleem of the nature deposed to by him. He admitted 1hat he belonged to the Congress party of which Shri Nijalingappa is the President.· In the particulars it is not stated that Chaudhary A. Mohammad ·overheard the conversation between Shri Sher Khan, M~P., and Shri Fakhruddin Ali Ahmed. further, Shri Sher Khan does ilot say that Shri Fakhruddin Ali Ahmed threatened and said "We distribute tickets and that he will ·not be given any ·E ticket ~nd that he was also retiring." The- last witness on this point is Shri Abdul Ghani Dar, M.P. He deposed that Shri Fakhruddiit Ali Ahmed approached · him on the telephone on the 11th August in the evening and he t'old him .that "he was told by Mr. Yunus Saleem that in spite of baving been told by him (Shri Yunus Saleem) I had decided not . to side with Mr. Giri and Shrimati Indira Gandhi." The witness further deposed that Shri Fakhruddin Ali Ahmed said that "it meant that in spite of my being Muslim.I was an enemy of the Muslims." He further said that. he told Shri Fakhruddin Ali Ahmed that this was wrong. According to the witness, he addressed letter !o Shri Fakhruddin Ali Ahmed and also to all the Muslim Members of Pariiamen( on this. The letter is Ext. P 68. He further deposed that Shri Yunus Saleem gave t!te pamphlets to him, took him aside and told him four things; the two relevant to this point being ( 1) that Shri Sanjiva Reddy was in collusion with the Jan Sangh, and (2) that if Sanjiva Reddy wins it will be victory·for Jan S~ngh and the Muslims will stand ~liminated. According to the witness he replied that "this is also ·wrong that by the return of Mr. Sanjiva Reddy there will be any . <langer for the Muslims."

The letter, Ext. P-68, was alleged to have been written _by Shri Abdul Ghani Dar on August 13, 1969,, and the followt~g passage may be extracted :

"Brothers it is said that Muslim League and Syed Baderuja are openly with communists. It is also said that Mr. F. A. Ahmed and Mr. Yunus Saleem are can-vassing· with Muslim members to defy the mandate of fue congress president for congress Shri · S. Sanjiva Reddy because Jan Sangh is on his side ...... Now· what right the communists or my brother Ahmed and Saleem have to canvass Muslims in the name of Islam and Muslims of India. It.is very sad that they are play-c ing very dangerously game." ( emphasiz,...supplied.}

This letter does not support Shri Abdul Ghani Dar that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem canvassed with him because the sentence begins : "It is also said" In other words he seems to. have heard from some source that Shri Fakhruddin Ali Ahmed and Shri· Yunus Saleem were canvassing the Muslim Members .. If his evidence is true we would have expected him to have stated in ths le.tter that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem had approached him. Fur-ther what is attribu~ed to them is something milder though. objectionable.

We have already mentioned that it was brought out during the cross-examina,tion that. there was conflict Qetween the evi-dence that he had given regarding Shri Yunus· Saleem taking him aside and his statement in sub-para 13(b)(iv) of the petition in which it is stated : "As single instance Shri Yunus Saleem approached Shri Abdul Ghani Dar, Member of the Parliament, one of the petitioners herein and talked to him in· this behalf as stated .earlier. This was said in presence of number of Mem-bers of Parliament." Shri Abdul Ghani Dar said: "I have even now hot denied that where I was taken no other Members were present." · This fnswer seemed to us surprising.

Further it seems to us that Shri Abdul Ghani Dar had been trying to collect and collate evidence right from the beg~g and his statement d~ not inspire confidence. He went to Lucknow arid his visit apparently resulted m the story of the visit of Shri Dinesh Singh to Lucknow. The tape record of his conversation with Shri Jagat Narain, which took place after the election, also lends strong support to this view. It is true that Shri Jagat · Narain tried to contact Shri Abdul Ghani Dar in order to dissu-ade him from filing the election petition. Shri Jagat Narain hid first spoken to Shri . Abdul Ghani Dar's wife and, according to $hri Abdul Ghani Dar, Shri Jagat Narain had created an im-

pression on his wife that there would be peril to Shri Abdul Ghani Dar in case he insisted on filing the petition. Shri Dar's wife did not give evidence. The tape record of the conversation between Shri Abdul Ghani Dar and Shri Jagat Narain clearly indicates that whereas Shri Jagat Narain was trying his best to make out that in his conversion with Shri Abdul Ghani's w1fe he had not held out any threat to the life of Shri Abdul Ghani Dar, the lattet was trying his best to get an admission to that effect from Shri Jagat Narain on to the tape,

Shri Fakhruddin Ali Ahmed denied that he telephoned Shri Sher Khan; M.P., as alleged by Shri Sher Khan in his evidence . . He further denied that he had any conversation with him in the Central Hall on the 11th of August, as alleged by him. He fur-the~;' denied that he telephoned Chaudhary A. Mohammad re-garding the election or any other matter. He maintained that he had no talk with him in his office or in the Central Hall of Parlia-ment. He further said that he knew Chaudhary A. Mohammad but he did not visit him and they did not meet very often. He further characterised Shri Abdul Ghani Dar's evidence as abso-D lutely incorrect that he approached him on the telephone. He added that he had never approached him regarding the election ~ matters. He said that he did not receive any letter from Shri I Abdul Ghani Dar. In cross-examination he stuck to the state-ment he had given in eJCamitiation-in-chie.f regarding Shri Sher Khan, Chaudhary A. Mohammad and Shri Abdul Ghani Dar, and non-receipt of the letter, Ext. P 68. He denied that during the course of the ·presidential election any propaganda along the lines suggested by these three witnesses was carried on by him among the Muslim Members of Parliament.

. Here again there is direct confiict between the witnesses. We have already held that the particulars given by Shri Abdul Ghani Dar were given on pure guess work and the verification he appended to the particulars was not true. Even on this aspect of the case the evidence given in Court is different from what is stated in the particulars.

The Learned counsel for the respondent read the statement of Shri Sher Khan to Shri Yunus Saleem and asked him whether the deposition of Shri Sher Khan was correct regarding the tele-phonic call or about the meeting. He replied : "No, it is not correct. I had talk with him about the Presidential election but when he informed me that he is committed to Shri Nijaiingappa and that he was working for Shri S. Reddy, the question of any further talk did .not arise." The witness further stated that no communal issue was involved in the election and he did not approach Shri Sher Khan on communal considera-

tions. The learned counsel then read out the statement of Chaudhary A. Mohammad to Shri Yunus Saleem and he replied : "I am sorry this is absolutely incorrect. It is correct that ~e came to me at breakfast more than once but no talk re-garding Presidential election took place between him and me." He said that Chaudhary A. Mohammad was supponing the Congress Party of which Shri NijaJingappa is the President and he was working for Shri Sanjiva Reddy.

Similarly the learned counsel read out the relevant eviden= of Shri Abdul Ghani Dar and to the question : "Is it correct?, Shri \'unus Saleem answered ·: "Except this that I had talk with Mr. Abdul Ghani Dar about the Presidential election in the Central Hall every part of it is incorrect." Shri Yunus Saleem described the talk thus :

"I wanted to know his views about the Presidential ·election because he claimed to be an independent mem-ber of the Parliament who did not belong to any poli-tical party. We discussed several points and he said that he had decided to support Mr. S. Reddy and he also mentioned that the late Prof. Humayun Kabir was also of the same view that Mr. S. Reddy should be supported. Therefore I said that he may consider that whether it would be advisable in the interest of demo-cracy and socialism to support Mr. S. Reddy or Mr. Girl. He said that he would think over it and also discuss with Prof. Humayun Kabir. Except this no talk between myself and Mr. Abdul Ghani Dar took plaee about the Presidential election.''

In this connection reference may be made to the statement of some other Muslim Members of Parliament. Syed Ahmed Agha, M.P., R.W. 10, said that Shri Sher Khan was collecting signatures for Shri Sanjiva Reddy. He further stated that no meeting of the Muslim Members of Parliament was held at about that time in connection with the Presidential election. To the question : "Did any Minister of the Centnl Government con-tact him and told him what he should do about voting, otherwise tl;le Muslims would be wiped out?", he replied: "Certainly not."

Sbri P. M. Syed, R.W. 13, said that he did not hear any cqmmunal cry raised by Shri Fakhruddin Ali Ahmed in the con-text of the election nor was any communal cry raised by Shrl Yunus Saleem during those days.

It seems to us highly improbable that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem would approach these three wit-nesses and canvass support for Shri Giri on the ground that the

SUPREME COURT B.EPOllTS

fate of the Muslim community would be. in danger.. It "See.DlS to be very unlikely that if Chaudhary A. Mohammad was pte8¢t alongwith Shri Sher Khan in the Central Hall, Shri Fakhrudclin Ali Ahmed would not talk directly to bo~ of . them 9cca-according to them they both had already been contacted over .the telephone. If Shri Fakhruddin Ali Ahmed wanted to SUpPlement the talk he·already had on the telephone it would. have- been a· nat.1ral for him to have talked to both of them. Moreover, ,if it was true some mention of it would have been made in the parti· . culars. It seem's to us that the evidence on this point is too un~ s~tisfactory to be believed without corroboration. from indepen~ dent sources.

. In view Df th~. considerations we hold Q1at the aUegations lD sub-para. 13(c) (111) have not be~n proved.

Only few minor points now remain. · No evidence was led in connection with tb~ · allegation made ·in sub·para (i) of para 13 of .the. petition. ·It was alJegedJ to state brietly, that the. $UpPorten of· thO returned candidate, Smt. IIldira .. Gandhi aiJ.d other .Ministers, had misused their position for f~ering the prospectS of the returned .. ~~<ii~~te by telephoning large number of electors from their -~~~1.81 · telephones.. No witness was produced to prove these. allegations. . Telephone records . and bills were summoned aYid ·prOduced in Court t>ut no effort· was made to connect the telephone records with the MinisterS and the electors; who are alleged to have. been contac.ted~ There is no evidence regarding the electors who are alleged to have been called by the above named Ministers· at their official residences and offices. NQ evidence was led on the al1egation that Shri V. v. Girl sounded one of the Ministers to. influence any particular electors who were found not a.-nenable to his influence or persu-asions. We must hold *eee .allegations not proved.

Regarding the allegati'oliS in para 13(c)(v), para 13(c)(vi) and para 13(c) (vi:), .. we did not allow any evidence to be taken on th~ points because we were of the view that even if they were accepted, the allegations did not amount to undue inft.uence. It seems to us tha~ the threats ·indicated in those paras were 10 fanciful and remote and. they could not constitute any attempt to interfere with· the electoral rights of the electors.

It was stated in para 13(c)(xiii) that "on August 6, 1969 the U.P. Congress Committee President, Shri Kamlapati Tripathi and Shri c. B. Gupta, Chief :Minister, jointly addressed meet-ing of the Congress M.L.As. 'and appealed for solid backing for Shri Reddy. But wh~n undue influence of the scare reached them they changed their 'stand. On August 13, 1969, Shri Kamlapati Tripathi also pleaded for ireedom to vote. The same

was the fate of the other State leaders." According. to · Shri Kamlapati Tripathi, R.W. 61, he had issued~ appeal, Ex. P 74, on August 12, 1969, to all Congress legislators of the U.P. State ~ Legislative Assembly, asking them to cast their vote in favour of ' Shri Sanjiva Reddy. He gave reasons in Ext. P 74 why this should be done. But then he changed his stand. He gave the following expJanation in answer to the question : "After issuing this appeal did you change your position in relation to the Presi· dential election ?" :

"Well, I may say that I made choice. The letters to the congress president of that time, Shri Nijalingappa, written by Jagjivan Ram and Fakhruddin Ali Ahmed, we1e published in the papers on the 12th of August, if I remember the date correctly, in which the demand to sanction the freedom to vote was published. I alsQ made request to the congress president to allow this freedom of vote in view of the serious situation developing with· in th.~ organi~ation regarding this question, and I re. quested that by sanctioning· that freedom of vote, perhaps, it would be possible to maintain the unity and avoid disruption in the organization."

He further added :

"It was, perhaps, on the 14th evening. And then I saw very clearly that on this issue split was going to take place in the organization. So, when the organization was going to be divided, as I saw it, I thought that I should make choice of my own self as to where I should belong, and I made that choice."

It seems to us that no connection has been proved betw~n the change in his stand and the alleged scare mentioned in ·sub·para I 3 (c) ( xiii) .

In conclusion we hold that the pamphlet was sent by post. F.urther, the pamphlet was distributed in the Central HaU of Parliament. This distr~qution itself constitutes undue inftuence within s. 18 (1) (a) of the Act. It is, however, not proved that th_is pamphlet was. distributed by workers of the respondent, or wtth the connivance of the returned candidate. We further hold that it has not r.~en proved that the result of the election has been n1ateria1ly affected by ;he distribution of the pamphlet. The rest of the aJiegations either do not amount to undue influence or were not proved.

Issue No.7 in E.P. No. 1/1969, Issue No.9 in E.P. No. 4/1969 and Issue No. 11 in E.P. No. 511969 '7-3URSup. cr (p)11J

What relief, if any~ are the petitionett$ entiled to?

The petitioners are h,ot ent1tlec,i. to any nelief as no ground has been made out for declaring the election of the respondent to be void.

In our order dated May 11, 1970, we had directed that the parties will bear their own cpsts. We passed this order regard-ing costs because we were satisfied that the pamphlet had been sent by post and distributed in the Central Hall and this justified the petitioners in bringing the two main petitioners. Most of the · evidence which was led in Court dealt with the question of the distribution of the pamphlet. Furthet. as pointed out in the judgment, number of witnesses have not told the whole truth. As matter of act we were distressed to see truth being sacrificed at the altar of political advantage by these witnesses.

BIMtrgava, J.-These four election petitions all challenge the ele<:tion of the President of India for which polling was held on the 16th August, 1969, and the result of which was declared on the 20th August, 1969. The petitioners iri Election Petitions Nos. 1 and 3 of 1969 were candidates at the election. The nomi-nation papetl of both. these petitioners were rejected by the Returning Officer. .The petitioners irt the other two Election Petitions Nos. 4 and 5 of 1969 were electors for the cftection of the President. The successful candidate, Shri V. V. Giri, is the sole respondent in Election Petitions Nos. 1, 4 and 5 of 1969, while, in Election Petition No. 3 of 1969," he was imp1eaded as respondent No. 2 and the Union of India, through the Election Commission, as respondent No. 1. In this judgment; the , .. refe-rence to respondent will be to the successful candidate, Shri ;v .. V. GirL

The election was occasioned by the demis·e of the then Presi-dent of India on the 3rd May, 196~. . The. Election Commission issued notification under section 4 of the ·Presidential and Vice-Presidential Election Act No. XXXI of 19)2 (hereinafter referred to as "the Act") appointing the 24th July, 1969, as the last date for filing nomination papers. The date for scrutiny of the nomi-nation papers was 26th July, 1969, and the last date for with-

drawal of nominations was the 29th July, 1969. The polling was fixed for the 16th August, 1969.

24 nomination papers were filed by the last date for filing nominations. The scrutiny took place on 26th July, 1969, in which the Returning Officer rejected 9 nomination papers, includ-B ing the nomination papers of the petitioners in Election Petitions Nos . . 1 and '3 of 1969. He accepted the nomination papers of 15 candidates. None of the 15 candidates withdrew his nomina-tion by 29th July, 1969, the last date for withdrawal. At the pool on 16th August, 1969, consequently, there were these 15 candidates. Counting of votes took place up to the 20th August, 1969, when the result was declared and the respondent, who_ was one of the candidates whose nomination had been accepted by the Returning Officer, was declared elected. These election petition's have been filed by various persons, as enumerated above, challeng-ing this election of the respondent.

Various grounds have been taken in the pleadings in these election petitions for challenging the validity of the election of the respondent which, briefly described, are:-

( 1) That the nomination papers of :::andidates Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected by the Returning Officer;

(2) That the nomination papers of the respondent were wrongly accepted by the Returning Officer;

( 3) That the nomination papers of Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachh-waha, Shri Babu Lal Mag and Shri Ram Dulare Tripathi were wrongly accepted by the Returning Officer;

( 4) That the offence of undue influence had been committed at the election by the respondent and his supporters with the connivance of the respondent;

( 5) That the result of the election had been mate-ria1ly affected by the commission of offence of undue influence by persons 0ther than the res-pondent without his connivance;

[1971] 2 S.C.R.

290 SUPllBMB COUR.T llBP.OllTS

·( 6) That the offence of bribery at the election had been committed by ·the respondent and his sup-porters with his connivance;

(7) That the result of 'the election had been mate-rially ~ected by the commissi0n of the offenc;:e of bribery by persons other than the respqndent;

( 8) 'I;hat Part III and section 21 of the Act are 11ltrtl-vires the Constitution as well as Rules 4 and. 6(3~ (e) of the Presidential and Vicc-Pre5idential' Elections Rules. 1952 (htttein~r referred to ·as "the Rules") promulga¥<J under section 21 of the Act are ultra vires tJie Consti-tution and the Act; ·

(9) That _the· elected Membe~ of the Legislative Assembliqs of the liJnion Terri tones were entitled to be included in the Electoral College for the election of the President and their wrongful non-inclusion had matetially affected the result of the eiection, as well as it had violat~d Article 14 of the Con.stitulion; and

(1'0) 1i'hat the petitioners were entitled to dispute the election ev.en. on grounds other than those men-tioned in section 18 of the Act, viz., that the respondent or any p,erson with his connivance had prin~; ·published and distributed pam-phlet containing scurrilous attacks against the I personal and moral character of one of the can-didates, Shri N. Sanjiva Reddy, which were false.

The detailed facts· relating to these grounds will be more conveniently mentioned when dealing with the various issues framed on the basis of these pleadings and, to avoid repetition, they are not being mentioned at this stage. On these pleadings, the folloWing issues were framed in the various election petitions :-'

Election Petition No. 1 of 1969.

1-. Whether the nomination papers of the petitioner, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly

rejected as alleged in paragraphs S(a) and (b), 6 and' of the petition ?

2. Whether the nomination papers of the respondent

were wrongly accepted as alleged in paragraphs S (c) and 8 of the petition '!

3. Whether the nomination papers of Shri RajbbOj

Pandurang Nathuji and Pandit Babu La1 Mag wrm wrongly accepted as alleged in paras. S (d) and 9 of the petition?

4. (a) Whether the elected members of the Legis-

lative Assemblies of the Union Territories were entitled to be included in the Electoral College for the election of the President ?

(b) Whether the non-inclusion of the members of the Legislative Assemblies of the Union Territories in the Electoral College amounts to non-compliance with the provisions of the Constitution? If so, whether the result of the election has been materially affected by such non-compliance ?

(c) Whether the alleged non-compliance with the provisions of the Constitution has violated Article 14 of the Constitution ?

S. Whether section 21 of the Act is ultra vires the Constitution of India ?

6. Whether Rules 4 and 6(3) (e) of the Rules are

ultra vires the Constitution and the rule-making powor of the Central Government ?

7. What reliefs, if any, is the petitioner entitled to?

Election Petition No. 3 of 1969.

l. Whether the nomination paper of Shri Phut SiDgh, the petitioner, was wrongly rejected?

2. What ·relief, if any, is the petitioner entitled to 1

Election Petition No: 4 of 1969

1. Whether the nomination papers of Shri Shiv

Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected, as alleged in paragraphs 8 (a) and 9(a), (b) and (c) of the petition'!

ra~ult of tbe election has been materially affected by such non-compliance ?

. (c) Whether the elleged non-compliance with the provisions .of the Constitution has violated Articlo 14 of the Constitution ? .. 8. (a) Whether the petitiQDers are entitled to dis-pute the election of the respondent on grounds other

8. (a) Whether the petitiQDers are entitled to dis-pute the election of the respondent on grounds other than those mentioned in section 18 of the Act ?

(b) If issue No. 8 (a) is decided in favour of the petitioners-

( i) whether the respondent or any person with his ·C connivance printed, published and distributed the pamphlet at Amiexure A-3 to· the petition ? (ii) whether the pamphlet at Annexure A-3 contain-ed any false statement of facts relating to the personal character and conduct of Shri N. Sanjiva Reddy, candidate at the election and other persons named in the pamphlet ?

(iii) whether the persons found responsible for publishing the pamphlet believed the statements made therein as true or had reason to believe them to be true ?

(iv) whether the pamphlet was published with the object of prejudicing the prospects of the election of Shri Sanjiva Reddy and furthering the pros-pects of the election of the respondent '/

tv) whether the election of the respondent is liable· to be declared void on this ground ?

9. What reliefs, if any, are the petitioners entitled

Election Petition No. S of 1969

I. Whether the nomination papers of Sbri Shiv Kirpal Singh, Shri Cbaran Lal Sahu and Shri Yogi Raj were wrongly rejected as alleged in paragraphs 8(a} and 9 of the petition ?

2. Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 8(b) and 1 0 of the petition ?

3. Whether the nomination papers of Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh ;Kachhwaha, Panuit Babu Lal Mag and Dr. Ram Dulare Tripathi were wrongly accepted as alleged in paragarphs 8 (c) and 11 of the petition ?

4. (a) Whether all. or any of the allegations made

in paragraphs 8 (e) and 13 of the petition constitute in law an offence of undue infiuence under section 18 ( 1 )(a) of the Act ?

(b) Whether the said allegations 8 (e) and 13 are true and proved ·r

in paragraphs

(c) In the event of these allegations being proved and constituting undue influence--

(i) whether the returned candidate has committed the offence of undue influence ?

(ii) whether the offence of undue influence was com-mitted by his workers, and if so, with his con-nivance?

(iii) whethe( the offence of undue influence was committed by others without his connivance, and if so, whether that ha.cs materially affected the result of the election ?

5. Whether Part III and section 21 of the Act are ultra vires the Constitution of India ?

6. Whether Rules 4 and 6 ( 3) (e) of the Rules are ultra vires the Constitution and the rule-making power of the Central Government ?

7. (a) Whether the elected members of the. Legis-lative Assemblies of the Union Territories were entitled to be included in the E1ectoral College for the election of the President?

(b) If so, whether the non-inclusion of the mem-

bers of the Legislative Assemblies of the Union Terri-tories. in the Electoral College amounts to non-com-plian~e with the provisions of the Constitution ? If so, whether the result of the election has been materially affected by such non-compliance ?

(c) Whether the alleged non-compliance with the provisiorts of the Constitution has violated Article 14 of the Constitution ?

8. (a) Whether the petitioners are entitled to dis-pute the election of the respondent on grounds other than those mentioned in section 18 of the Act ?

(b) If issue No. 8 (a) is decided in favour of the petitioners-

( i) whether the respondent or any person with his connivance printed, published and distributed the pamphlet at Annexure A-38 to the petition ~

3; K. SINGH v. SIW. V. V. GllU (Bhargpva, 1.)

{ii) whether the pamphlet at Annexure A-3.8 con~ tained any false statement of facts relatm~ to the personal character· and conduct of ~hn N. Sailjiva Reddy, candidate at the electton and other persons named in the pamphlet 1 (iii) whether the persons found responsible for pu~ lishing the pamphlet believed the statem~nts made therein as true or had reason to believe them to be true ?

( iv) whether the pamphlet was published with ~e object of prejudicing the prospects of the election of Shri Sanjiva Reddy and furthering the pros-pects of the election of the respondent 1

. (v) whether the election of the respondent is liable to be declared void on this ground '?

9. Whether the respondent or any other pe!SOn with his connivance committed the offence of bnbery as alleged in paragraph 15 of the petition ?

9A. Whether the allegations in pani. 15 constitute bribery within the meaning of the Act ?

10. Whether the offence of bribery was conunitted at the election by any other person without the con~ nivance of the respondent as alleged in paragraph 15 of the petition, and if so, whether it materially affected the result of the election ?

11. What reliefs, if any, are the petitioners entitled to ?

FINDINGS

lssut No. 5 of Election Petitions Nos. 1, 4 and 5 of 1969.

Under this ·issue in Election Petition No. 1 of 1969, the only point .ralsed relates to the validity of section 21 of the Act, while, tn the other two election petitions Nos. 4 and 5 of 1969, the vali~ dity of Part ill of the Act as whole is also challenged. It was oontcnded that Part ffi of the Act is ultra vires Artic1e 71 ( 1 ) of the Constitution on the ground that it purports to curtail the juris-diQtion conferred on the ~preme Court to enquire into and decidf! all doubts and disputes arising out of or in connection with the election of President or Vice-President by laying down certain limitations, such as the grounds on which only the election of President or Vi~President can be challenged in an election peti-tion. The question of validity of the Act was considered by this.

Court in Dr. N. B. Khtue v. Election Commission of lndiaC). where the Court dealt with the contention that !he Act and the Rules framed thereunder are void on the ground that they derogate from the jurisdiction of the Supreme Court to enquire into and decide all disputes and doubts arising out of or in connection with the election of the President or the Vice·President. This proposi-tion was supported by t:.1e argument, that under section 1 of the Act, the election could be set aside only on certain grounds and that, further, under clause (b), it could be done only if the result of the election is shown to have been materially affected and that these are restrictions on the jurisdiction conferred by Article 71 ( t l ;and are ultra vires. The Court held :-

"Article 71 ( 1) merely prescribes the forum in which disputes in connection with the election of the President and Vice-President would be enquired into. It does not prescribe the conditions under which the petition for setting aside an election could be presented. Under Article 71 ( 3), it is Parliament that is authorised to make law for regulating any matter relating to or con-nected with the election of the President or Vice-Presi-dent, and the Act has been passed by Parliament in a~cordance with this provision. The right to stand for election and the right to p10ve for setting aside an elec-tion are not common law rights. They must be con-ferred by statute and can be enforced only in accordance with the conditions laid down therein. The contention that the Act and the Rules derogate from the jurisdiction of the Supreme Court under Article 71 ( 1) must accord-ingly be rejected."

The argument advanced was that the Court, in giving that decision, incorrectly proceeded on the basis that Art. 71 ( l ) merely prescribes the forum for the decision of doubts and dis-putes arising out of or in connection with the election of Presi-dent and Vice-President, and ignored the circumstance that Art. 71 ( 1) actually confers jurisdiction on the Supreme Court which jurisdiction cannot be curtailed by parliamentary law passed ·under Art. 71 (3) as the power of Parliament to pass the law is ·subject to the provisions of the Constitution, including the provi-sion contained in Art. 71 ( 1 ) . The distinction sought to be drawn has no force at all. In that case, the Court specifically dealt with the argument that Art. 71 ( 1 ) confers jurisdiction on the Supreme Court and gave its decision after considering. this aspect. In any case, even if the argument advanced is accepted that Art. 71 (I) defines the jurisdiction of the Supreme Court, the manner in which that jurisdiction is to be exercised can only be

(f) [19S8lS.C.R. 648.

regulated by an Act of Parliament passed in exercise of its power under Art. 71( 3). In exercise of that power to regulate aU matters relating to or connected ·with the election of President or Vice-President, Parliament cl~ly had. ~e power of laying down the grounds on which the election can be challenged and set aside, in addition to other matters relating to the election.

In this connection, learned .counsel also wanted to draw an inference from the provision in Art. 329 (b) of· the Constitution which lays down that no election to either House of Parliament or to the House or either House of the Legislature of State shall be called in question except by an election petition presented 10 such authority and in such manner as may be provided for by or under any law ·made by the appropriate Legislature. The argu-ment was that, in this Atticle, there was specific mention of a· law made for calling in question an election by an election petition, whereas there is no such corresponding provision in Art. 71 of thf! Constitution. The argument advanced is clearly misconceived. In the case of elections to either House of Parliament or to the House or either House of the Legislature of State. Parliament exercises powers to make law with respect to all matters relating to or in connection with the election under Art. 327 and not under Arb.329(b). Article 329(b) is provision which lays down limitation on the manner in which an election can be call-ed in question, while the procedure for calling in question the election. as welt as the grounds on·which the election can be call-ed in ques~ion. can only be laid down by Parliament by law passed under Art. 327. In the case of Art. 71. it appears that no need was felt of making provision similar to Art. 329 (b) when Art. 71 ( 1) itself laid down the limitation that all doubts and dis-putes arising out of or m connection with the election of Presi-dent or Vice-President are to be enquired into and decided by the Supreme Court whose decision shall be final. This limitation does not affect or limit the· power of Parliament to regulate matters relating to tiling of election petitions in the S4preme Court and of the grounds on which the elections can be C.b.allenged when the Supreme Court exercises its jurisdiction·under A~. 71(1}. ln these circumstances, th~ argument that Part 11£ ~f the Act is ultra vires Art. 71 ( t) of the Constitution must be rejected So far as the validity of section 21 of the Act is concerned, it was challenged on the ground that the power of n\aking rules suffers from the vice of excessive delegation of legislative powers inasmuch as even essential matters of policy. are left to be pn;scrib-ed by rules by the Government and there are no guildin~'{>rinci­ples, so that the power can be exercised arbitrarily. It ~a1 fur-ther stressed that, in the Act, no provision similar to secti~m 169 ( 3) of the Representation of the People Act, 1951 or sec~ion28(3) of the Representation of the People Act, 19SO, was includ· 'ed by Parliament so as to require that the Rules framed under section 21 of the Act should be laid before each House of Parlia· ment and that the Rules should be subject to modifications or annulment by Parliament. It is not pcssible to hold that ~ti.oo 21 suffers from any such defects. Parliament laid down the essential matters of policy .relating to e~ections, including election petitions, in the Act itself and, thereafter, in section 21 delegated the power of making rules to the Central Government, subject to two principles· of guidance. One is that the Rules are to be made after consulting the Election C()Jillllission, and the second is that the Rules must be such as are needed for carrying out the put-poses of the· Act. This second limitation clearly requires that the Government, in making Rules, has to ensure that the RuleS are all required for carrying out the purposes of the Act; and that jtself is sufficient limitation on the exercise of that power arbi-trarily by the Government. In Part II of the Act, the Legislature has laid down the essential regulations for holding the elections, and in Part III, similarly, the essential matters relating to filing of dection petitions a.nd their decision, including the grounds on · which the elections can be challenged, have been prescribed by Parliament itself. It is in order, to give effect to these principles laid. down by Parliament itself in the Act that the Government is to exercise 1~ power of making rules. Such power being already limited by the purposes of the Act cannot be held to be unguided or even arbitrary, even though Parliament did not choose t~ iay -down the Tet]Ulrement that the Rules framed must be laid on the table of the two Hou9eS of Parliament and should be subject to modification or annulment Within specified period. In fact. Parliament- all the time has the power of altering the Rules by !Ullending the Act itself in case it disapproves of any of the Rules made by the Government, while any Rule, which is shown to have been made in contravention of the provisions of the Act, or for any reason other than to give effect to the purposes of the Act, would be declared void by the Court not on the ground that there was excessive delegation of legislative power, but that it goes -beyond the scope of the power conferred on the Government under s~tion 21 of the Act Section 21 of the Act ttsetf cannot. therefore, be held to be void on any ground.

Issue No. 6 of Election Petitions Nos. 1, 4 and 5 of 1969

Under this issue, the petitio.ners challenged the validity of Rule 4 ( 1 ) of the Rules to the extent that it requires that certified copy of the entry relating to the candidate in the electoral roll far the Parliamentary constituency in which he is registered must accompany the nomination paper, and the validity of the conse-quential provision in Rule 4 (2) which lays down that nomina-

tion paper, to which the certified copy referred to in sub-rule ( 1 ) of tbil R.ulc is not attached, shall be rejected. This part of Rule 4(1) is chaiJenged on two gtounds. One is that such require· meat ia beyood the rule·mal;..ing power of the Government under sectioa 21 of the· Act, and the second is that the Rule is arbitrary and unreasonable inasmuch as it lays down only one single man· ner Of showing that candidate is an elector for Parliamentary constituency by filing certified copy of the entry, ru1ing out all other methods, such as filing of the published electoral roll itself, On the face of it, the first ground raised has no force. Clause (d) of sub-s. (2) of section 21 lays down that the Rules made under that section may, in particular, and wiUtout prejudice to the gene· J;&lity of the power granted under sub-s. ( 1 ) , pr<~vide for the fonn and manner in which nominations may be made and the proce· dure to be followed in respect of the presentation of nomination papen; and the requirement and that certified copy of the ~ntry, showing that the candidate being nominated is an elector for Par· liamentary constituency which alone makes him eligible to stand as candidate for the office of President or Vice·President, must ' accompany the nomination paper falls squarely within this clause. The requirement relates to the manner of proving that the candi· date is an elector in Parliamentary constituency. In any case, this provision in Rule 4 (1 ) would be fully covered by section 21 ( 1) of the Act inasmuch as the requirement is for no other pur· pose except of ensuring smooth and proper election to the office . of the President or Vice·President which object can be achieved by enabling the Returning Officer to ensure that candidates, whose nominations are accepted by bini, are eligible for election. In this connection, reference was made to the decision of this Court in Ranjit Singh v. Pritam Singh and Others(l), where the Court had to deal with section 33(5) of the Representation of the Peop ple Act, 1951, and the Court held:-

"The object of this provision obviously is to enable the. returning officer to check whether the person stand· ing for election is qualified for the purpose. The elec-toral roll of the constituency for which the returning officer is making scrutiny would be with him. and it is uot necessary for candidate to produce the copy of the roll of that constituency. But where the candidate l.Jelongs to another constituency, the returning. officer would not have the roll of that other constituency with him and therefore the provision contained in s. 33(5) has been made by the legislature to enable the returning ?fficcr to check that the candid~te is qualified for stand· mg for election. For that purpose the candidate is

given the choice either to produce copy of the elecro. ral roll of that other constituency, or~ the relevant part thereof or of certified copy of the relevant entries in such roll before the returning officer at the time of the scrutiny, if he has not already filed such copy with the nomination paper." ·

This decision clearly supports the view that the requirement in Rule 4 ( I ) that certified copy of the entry showing that the can· didate is an elector in Parliamentary constituency is necessary in l)rder to enable the Returning Officer to check whether the candi-date is eligible for nomination and election. The manner in which the Returning Officer should be given the necessary infor-. mation is matter of detail relating to nomin?..tion and, conse-quently. this Rule is within the scope of the power conferred on the Central Government to make Rules for giving effect to the purposes of the Act.

Based on this very decision cited above, learned counsel for the petitioners urged that, in section 33 (5) of the Representation ,,f the People Act, 195 J, the requirement is the production of either copy of the electoral roll, or of the relevant part thereof, or certified copy of the relevant entry in such roll, while, in Rule 4( J) of the Rules, the only manner of satisfying the Ret~rn­ing Officer about eligibility permitted is the filing of certified copy of the entry and, consequently, the requirement in Rule 4( 1) is arbitrary and tlilreasonable. It has to be kept in view that the election for the office of the President or Vice-President does not stand on the same footing as the election for membership of House of Parliament or House of the State Legislature. In the latter case, the Returning Officer usually has the electoral roll of the constituency, from which election is to be held, with him and, by and large, the candidates standing from constituency are ~nrolled as electors in the same constituency. Provision had to be made in section 33 ( 5) of the Representation of the People Act, 1951, for those limited cases where the candid{l.te stood for election from constituency different from the one in which he is enrolled as an elector. In the case of election for the office . of President or Vice-President, any elector enrolled in the electoral roll of any Parliamentary constituency in India is entitled to stand as candidate, and it is clear that the electoral rolls of those cons-rituencies will not be with the Returning Officer. In every case. therefore. it would be necessary that some evidence should be available with the Returning Officer so as to enable him to ensure that the candidate is eligible for election. In order to make cer-tain that the election proceeds smoothly and to minimise .. the chances of disputes or doubts arising, the requirement laid down in Rule 4 (I ) is that certified copy of the entry alone should be

accepted ar tLe proper prool for showing eUgibility of the candi~­date. ·Electoral- rolls are suQject to revision from time to time. At the general elections, they are fully~ and, then, Sltbsequent alterations are made in them as occasions arise. The election to· the office of President or Vice~President may not coincide with or be very close to the time when there is general revision of the· electoral rolls, so that the electoral rolls printed . and published nearabout the time of general elections may be out of date by the time the election for the office of President or Vice~President is heid. The published electoral roll may, therefore, be misleading if it is allowed to be filed before the Returning Officer to show eligibility in the case of Presidential or Vice-Presidential elec-c tion. That seems to be the reason why Rule 4 ( 1 ) lays down that certified copy of the entry alone will be the proper manner of satisfying the Returning Officer of the eligibility of the candidate. The original electoral roll, of course, cannot be produced as there is only one original which is· retained either by the Electoral Registration Officer or in the office where ~e Chief Electoral Registration Officer directs it to be preserved m accordance with the Rules framed under the Representation of the People Act, 1950. In such circumstances, if the rule·making authority did not consider it safe to rely on printed copies of the electoral rolls issued generally at the time of general cl.ections to Parliamentary constituency, it cannot be sai9 that the authority acted arbitrarily or unreasonably. The smoothness of the elections could only be ensure.d by requiring the filing of certified copy of the entry which would. be immune from any ~oubt or challenge. The mere fact that the requirement of Rule 4(1) of the Rules differs from the requirement of section 33 ( 5) of the Representation of the· People Act, 1951, cannot be ground for holding that Rule 4 ( l ) lays down an, unreasonable restriction, so that this Rule must be held to be vaHd. Rule 4(2), which prescribes the consequence tor non·compliance with the requirement of Rule 4 ( 1 ) , must also· be held to be valid as it is in.tended merely to make the valid Rule 4 ( l ) effective.

The next challenge is to the validity of Rule 4 ( 3) and the .consequential Rule 6 ( 3 )(e) of the Rules. Rule 4 ( 3) lays down th~t no elector shall subscribe, whether as proposer· or as.seconder, more than one nomination paper at any election, and Rule 6(3)-( e) is the consequential provision laying down that the Returning Officer shall reject nomination paper on the ground that the proposer or seconder has subscribed, whether as proposer or seconder, another nomination paper received earlier by the Return~ ing Officer at the same election. The validity of Rule 4(3) has been impugned on the ground that it is in derogation of the rifdlts conferred on candidate or on electors by section 5 ( 2) of the Act. Section 5 reads as follows :-

SU~REME eOURT REPORTS

"5. Nomination:. of candidates.-( 1) Any person may be nominated as candidate· for election to the office of President or Vice~President if he is qualified to be elected to that office under the Constitution.

( 2) Each candidate .shalt be nominated by nomi~ nation paper completed in the prescribed fonn and ~ubscribed by the candidate himself as assenting to the norr:ination and by two electors as proposer and secon· · der."

The argument is that every candidate, under section 5 (2), has .'1'Jght to be nominated by any two electors as proposer and secon-der without· any limitation as to who those two electors are and irrespective. of those electors having done any act, such as having proposed or seconded' another candidate. It is also urged that this provision confers 1(' right on every elector to subscribe nomi-nation paper as prop{>!;er or seconder without any limitation as to the number of nomination papers whicJt c_IDDQe so subscribed by him.The submission that section 5(2) should be rea~ as conferring .any right either on the candidate or ori the elector'S in respect of signing of nomination papers cannot be--accepted. On the face of it, the provision made 4n section 5 relates to procedural matters leading up to the exercise of electoral rights of .a_ candidate or an elector. The filing of:_nomination paper only regulates the man-ner in which.. candidate is_ t~ signify the fact that he desires to be elected, and the provision for the nomination paper being signed ·by two electors as propuser and seconder is meant only to indicate to the electors in general that the candidate is being put forward for election by at lea-st two electors. The no~J~ination pap.er also serves the purpose of informing the Returning Officer who are the candidates, so that appropriate steps can be taken for holding the poll by having ballot papers printed and appropriate number of ballot boxes provided. The IangL.age of section 5 ( 2) itself shows that it was while prescribing the manner of subscribing nomina-tion paper that Parliament laid down that it should be subscribed by the candidate himself as assenting to the nomination and by two electors as proposer and ~econder. Had there ~h an inten· lion to confer right on any of them, the language would have been different giving such indication by laying down what the candidate and tlle electors are entitled to do i~ respect of nomi. nation paper. Obviously, section 5 only Jays down the. essential ingredients of the process of nomination, leaving the details of the manner of nomination to be filled up by Rules made by the ·Government under section 21 of the Act. Rule 4(3), which requires that no elector shall subscribe, whether as proposer or seconder, more than one nomination paper at any election, is,

thus, supplementary to section 5 ( 2) as containing more detailed · direction in respect of filing of nomination papers.

In this connection, learned counsel for the petitio11ers referred to the decision of this Court in Amolak Chand v. Raghuveer Singh (l.), in which similar provision contairled in section 33 of the Representation of the People Act, 1951, as amended by the· Amending Act 27 of 1956, came up for consideration. Prior to the Amending Act 27 of 1956, section 33, dealing with this sub-ject, specifically laid down that any person, whose name is regis-tered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in section 16 of the Representation of the People Act, 1950, may subscribe as proposer or seconder as many nomination papers as there are vacancies t(} be filled, but no more; and there was also consequential prvvi-sion in section 36(7) (b) which laid down that, where person has subscribed, whether as proposer or seconder, larger number of nomination papers than there are vacancies to be tilled, those of the papers so subscribed which have been first received, up to the number of vacancies to be filled, shall be deemed to be .valid. These provisions were omitted by the Amending Act 27 of 1956. and thereafter, the language of -section 33 became similar to that of section 5 ( 2) of the Act inasmuch as it required the candidate to deliver to the Returning Officer nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. The question. arose whether, if single elector signed more than one nomination paper as proposer, any of the nomination papers could be held to be invahd. The Court held that, after the enactment of the: Amend-ing Act 27 of 1956, there was no bao in section 33 ·of an electOr signing more than one nomination paper and, consequently, if an. elector signed more ·than one nonunation paper, all the nomma·· tio papers would be valid. That case is, thus, linuted to the . question whether there is or is no ban on an elector signing more: than one nomination paper as proposer. It did not lay down that every elector had been conferred right to sign the nomina·: tion paper of more than one c;~didate as proposer. While no-' right can be read as having been conferred by such provision, there will be no bar to rule being made by the rule-making authority limiting ·th~. number of nomination papers to be signed by each elector as proposer or seconder. In fact, Rules are· always meant to fill in details of procedure in respect of which the· Act does not contain specific provisions. The Rules are meaat to· supplement the provisions of the Act and to deal with matters incidental, in respect of which there is no definite provisioR made in the Act itself. The fact that there is no ban in section 5(2) of the Act on an elector signing more than one nomination paper·

(1) £196~) 3 S.C.R. 246.

8-L303 Sup Cl/71

as proposer or seconder does not, therefore, mean that Rule 4(3) of the Rules could not have been competently made by the Govenunent. Rule 4(3), on the face of it, contams very rea· sonable direction. If there is only one vacancy for which election is to be held, an elector can reasonably be expected to nominate only one candidate as proposer and put him forward before the other electors as suitable person to ,be chosen. Similarly, when seconding nomination paper, an elector indicates his preference for that candidate to the general electorate which is to cast votes at the election. If the indication of such choice is restricted to as many candidates as there are vacancies, the provision, is, on the face of it, salutary and conducive to proper election. The historical background of the Rules relating to elections in India also bears out that such provision has always been con-sidered desirable. The earliest Rules that have been brought to our riotice are the Electoral Rules. and Regulations made . for elections to the Legislative Assembly at the Centre and to the Legislative Councils of Provinces under the Governrnen~ of India Act. The Rules, as .revised up to 25th August, 1934, made by the Central Government, contain provision in Rule 11 (3) of Part IV, similar to that of section 5 of the Act, by laying down that the nomination paper shall be subscribed by the candidate himself as assenting to the nomination and by two persons as proposer a·nd seconder whose names are registered on the electo-ral roll. of the constituency. This is ·followed by sub. rule ( 4) which -limits the number of nomination papers to be subscribed as proposer or seconder by an elector to the number of vacancies to be filled but no more. These two requirements having been laid down by the Rules, the further procedure was governed by the RegulatiOn$ made for each Province for conducting the elections in that Province even in respect of the Central Legislative Assem-F bly. In the Presidency. of Madras, Regulation 7(1) (iii) em· powered the Retur!}ing Officer to refuse any nomination on the ground that there has been failure on the part of the candidate or his propo~er or seconder to comply with any of the provisions of Rule. 11; and it was in exer~ise of this power that the Returning Officer could reject the nomination paper signed by an elector or proposer in excess of the number of vacancies. For the Presi-G dency of Bombay, similar prov.ision was made in· Re_gulation 3 of the Legislative Assembly (Bombay) Electoral Regulations dated 13th September, 1923, for rejection of the nomination paper by the. Returning Officer. The corresponding provision for the Pro-vince o.f Bengal was contained in Regulation 20; for United Pro-. vinces in Regulation 9; for Punjab in Regulation 4; for Bunna in Regulation V; for Bihar and Orissa in Regulation 24; for the Central Provinces in Regulation 4; and for Delhi in Regulation 5. All these Regulations were made under Rule 15 of the Legislative

Assembly Electoral Rules. Thus, the principle that an elector should not sign nomination papers as proposer or seconder in excess of the number of vacancies was observed throughout India. Similar provisions existed in the various Provinces in respect of elections to be held to the Legislative Councils of the Provinces. Later, when the Council of State came into existence after the Government of India Act, 1935, provision was made in Rule 11 ( 4) limiting the number of nomination papers, which could be subscribed by an elector as proposer or seconder, to the number of vacancies to be filled and no more. Even in the Representation of the People Act, 1951, when first enacted, there was similar provision. The Act, with which we are concerned, was passed in · · 1952 in this stage of legislation and it is obvious thatParliament, / when enacting section 5, left it to the rule-making · authbn1y to

J)lake detailed provisions of this nature.

It may also be mentioned that similar provision exists in the Rules governing elections in England. The Act in question :is the Representation of the People Act, 1949, and the Rules for Ccnduct of Elections were contained in the Second Schedule to that Act. Rule 8 ( 1) of the Second Schedule was similar to section 5 ( 2 J of the Act laying down that the nomination paper shall be subscribed by two electors as proposer and seconder, and by eight other electors as assenting to the nomination. Rule 8 ( 5) laid down the limitation that no person shall subscri~ more than one nomination paper at the same election and~ if he doesJ his signature shall be inoperative on any paper other than the one first d~livered. The provision is not only sunilar, but it is significant th!lt, when laying down the 'limitation in &ule 8 ( 5), the language used indicates that no riMt on an elector to subscribe as proposer and seconder any number of nontinationt was envisaged as .having been conferred by Rule 8 ( 1). If we were to hold that Rule 8 ( 1), which is similar to section 5 (2) of the Act, confemd right on an elector to subscribe any number of nomination papers as proposer and seconder, Rule 8 (5) would have contained words indicating that it will over-ride the provisions ·of Rule 8 ( 1 ) . This could have been done either by making Rule 8(1) subject to Rule 8 ( 5), or by stating iri. Rule 8 ( 5) that it shall prevail not-G withstanding anything contained in Rule. 8 ( 1). There was, · in fact, no need to use such qualifying words, because Rule 8(1) could .not be interpreted as conferring right on ·an elector to subscnbe more than one nomination paper as proposer or secon-der, so that. Ru1e 8 ( 5) was not limitation on any right conferred. by the earlier sub-rule . . In these circumstances, it must be held It ~hat Rul~ 4(3~ of the Ru!~ was validly made by the·G<>vernment m exerc1se o~ Its ru!e-:-makmg power under section 21 of the Act. That ~ule bemg valid, Rule 6 ( 3 )(e) of the Rules, which is conse--. .. -·-quential, must also be held to be valid.

Issue No; 1 in Election Petitions Nos. 1,· 4 and 5 of 1969.

These issues between them raise the question of the validity of th~ rejec.tion of t~e nomination papers of three persons, Shri Shiv Kirp~l S.mgh, . Shn Chara!l L~l Sa?u an~ Shri Yogi Raj. The nommahon ,paper of Shn 5htv K1rpal Singh was rejected on the grou~d that ~t w~s not accompanied by certified copy of the entry relating. to hl!ll m the elect?ral roll for the Parliamentary consti-tuency m whtc~ he was registered. Instead, his nofuination paper was accompamed by few printed sheets purporting to be pan of the electoral roll <?f that constituency containing his name as an elector. It has already been. ~eld above, when dealing with Issue No. 6, that ~ule 4 ( 1), r~umng that the nomination paper must be accompam~d by certified. copy .of th~ electoral roll containing the entry relatmg to the c~nd1dat~, IS vahd and mandatory. Since ther~ wa;; clear non-compliance w1th that Rule, the rejection of the ~Ofi:Unation paper of Shri Shiv Kirpal Singh was correct and Justified.. The nomination paper qf Shri Charan Lat Sahu was rejected en the ground that he was less than 35 years of age on the date of nomination. The nomination paper was, no doubt, accompanied by certified copy of the entry in the electoral roll in which his age was shown as 32 years on 1-1-1966 .. · The Returning Officer had some doubt whether Shri Charan Lal Sahu had completed the age of 35 years and, consequently, he asked Shri Charan Lal Sahu, who was present at the time of scrutiny,... to state his date of . birth. He gave in writing that his date of birth was 15-3-1935. According to this date of birth given by Shri Charan Lal Sahu himself in his own handwriting to the Returning Officer, he wa.~ clearly below 35 years of age on the date of nomination. The nomination paper was rejected on ibis ground. The rejection is based on Shri ·Charan Lal Sahu's own statement given before the Returning Officer; and it is significant that in none of these election petitions has any assettion been made that in fact, the age of Shri Charan Lal Sah~ was more than 35 years' on the date of nomina-tion. The only attempt made is. to challenge the order of the Returning Officer on the ground that the entry in the electoral roll showed that he was qualified as candidate, having attained the age of 35 years. That en_try is of little value after Shri Charan Lal Sahu's own statement in writing indicating that he was less than 35 years of age. While no election petitioner is prepared to assert and prove that Shri Charan Lal Sahu had in fact completed 35 years on the date of nomination, it has to be held that the r.ejection of his nomination paper was fully justified and correct.

So far as the rejection of the nomination paper of Shri Yogi Raj is concerned, his nomination paper was rejected on the ground. ·. that he had been proposed and seconded by the same electors who

.A had proposed and seconded another candidate, Shri Rajbhoj Pandurang Nathuji, and the nomination of the later was received earlier by the Returning Officer. The Returning Officer rejected the nomination paper by an order made in accordance with Rule 6(3)(e) read with Rule 4(3) of the Rules. The correctness of this order was challenged on the ground that these Rules are ultra vires the Act. In dealing with issue No. 6, it has already been held that these Rules are valid and are not in contravention of section 5 (2) of the Act. The rejection of his nomination paper, based on these valid Rules, was justified and, consequently, it can-not be held that his nomination paper was worngly rejected.

Issue No. 2 in Election PeNtions Nos. 1 & 5 and Issue No. 3 in Election Petition No. 4 of 1969.

The acceptance of the nomination paper of the respondent has been challenged on the ground that his nomination paper was not accompanied by certified copy of the entry relating to him in the Parliamentary constituency in which he was registered. After examining the certified copy fil~d, it is not possible to accept the submission. because, on the face of it, it is certified copy of the electoral roll issued by the appropriate authority. These issues are, therefore, decided against the election petitioners.

Issue No. 3 in Election Petitions Nos. 1 & 5 and Issue No. 2 in Election Petition No. 4 of 1969

Under these issues, the validity of the acceptance of the nomi-nation papers of four candidates, Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhwaha, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi, was challenged. In Election Petition No. 5 .of 1969. the nomination paper of Shri Rajbhoj Pandurang Nathuji was challenged on two grounds, but one of the grounds was given up, and the only ground, which was pressed and which was also common to other election petitions, was that the copy of the electoral roll, which accompanied his nomination paper, was not certified by the approprate officer. This submission was made on the wrong basis that the Rules required that the certified copy must be issued either by the Electoral Registration Officer or the Assistant Electoral Registration Officer. The copy was, in fact, issued by one Shri M. V. Madke with rubber seal under it showing that he was functioning as Tehsildar, Poona City. It appears that the permanent Tehsildar of Poona City was the Assis-tant Electoral Registration Officer, but, at the time of the issue of the copy, he happened to be absent and Shri M. V. Madke, who was val Karkun, was acting in his place. Since Shri M. V. Madke was acting in place of the Tehsildar, he was also in charge of the electoral rolls which were in his custody. He was further empowered to exercise all the powers given to the Tehsildar~ He,

therefore, was competent to issue the certified copy in two capa-cities, viz., ( 1) as exercising powers of the Tehsildar conferred on him while he was acting in place of the permanent Tehsildar and (2) in the capacity of custodian of the document of which the copy was required. There is nothing in the Rules framed under the Act, or under the Representation of the People Act, 1950 and Rules framed thereunder, requiring that certified copy of the electoral roll must necessarily be issued by either an Electoral Registration Officer or an A.,sistant Electoral Registration Officer. Every government servant, who has custody of document, is - co • .opetent to issue certified copies of that document, so that the certified copy issued by Shri M. V. Madke was valid and good copy ·and there was no rea•;on for rejection of his nomination paper. It was rightly accepted.

In the case of Shri Santosh Singh Kachhwaha, the only ground pressed was that his nomination paper was signed by the proposer and the candidate on 16th July, 1969, while the seconder signed it on 21st July, 1969. Thereafter, the candidate himself present-D ed this nomination paper to the Rt!turning Officer on 23rct July, 1969. His case may be considered with that of Pandit Babu Lal Mag in which also the ground for challenging the validity of the nomination paper is similar. His nomination paper was signed by him on 18th July, 1969, while both the proposer and the s~conder signed it on 21st July, 1969. Thereafter, Pandit Babu Lal Mag himself presented the nomination paper to the Returning Officer. The point raised was that, in one case, the seconder signed the nomination paper after the candidate, while, in the other case, both the proposer and the seconder signed after the candidate }:lad done so. The nomination paper shows that the ~andidate, when signing, purports to "assent to this nomination". It was urged that signature in token of such assent to that parti~ cular nomfnation must be made by candidate after both the pro-poser and the seconder have signed. Reliance was placed in this connection on the decision in Harmon v. Park(!). In that case, the question arose about the validity of nomination paper of candidate Mark Harmon which, when initially presented, had the name of William Ball as proposer, together with signatures of the seconder and' eight burgesses as assenting parties to that nomina~ tion. The clefk, on looking at the burges roll, found that the name of William Ball was on the list of electors, but it was noted in the margin "not entitled to vote here". At the time of presen~ tation, one John Green, duly enrolled burgess, happened to come into the office and, seeing the nomination paper signed by Ball, and knowing that the name of William Ball was not on the burgess roll as person entitled to vote, struck out Ball's signature

(1) [1881) 7 Q.B.D. 369.

and inserted his own name in lieu thereof. At that time, Ball the original proposer, the seconder and the assenting burgesses ~ere not present. Green har1ded in this nomination paper to the town clerk. It was in these circumstances that the nomination paper was held to be invalid. Grove, J., held:-

"The argument for the appellant was that these eight persons assent to the nomination <lf the candidate as proper person to be nomin11ted; an argument which if carried to its full extent must involve the proposition that the assenting burgesses may subscribe nomination paper with the names of proposer and seconder in blank. But the assents required by the Act are to the nomina-tion in the form in which it is written, so that any person assenting may first see who is proposer and seconder. It may well induce them to give their assent if they find that the proposer and seconder are good and responsible persons in whom they may trust. I think, therefore, that the nomination was bad, and the name of the appel-lant properly rejected as candidate."

Lindley, J ., agreeing with him said :-

''The Act of Pariiament requires that the. etght burgesses shall assent to the nomination. What then is the nomination in writing to which they assent ? The nomination consists in f!lling up the_ name of the candi-E date on the nomination form, with the signatures of the proposer and seconder. The argument for the peti-tioner comes to this, that the etght persons might sign even before the name of the candidate was on the nomi-nation paper. This is notthe kind of assent required by the statute. The _nomination must precede the assent, the assent must not precede the nomination."

Thus, in that case ,the nomil)atiem paper was held to be invalid, because the signature of John G~n. who was ultimately the prp-poser, was put on the nomination paper after the seconder, the candidate and the eight assenting burgesses had · all signed it. However, the point to be noticed is that, in that case, the invalidity was found because the circumstances in which John Green substi-tuted his name as the proposer showed that the assenting eight burgesses had no knowledge at all that he had become the pro-poser, as they had only assented to the nomination signed by William Ball. John Green su-bstituted his name for that of William Ball in the absence of the burgesses. 0~ this ground, it was held that the nomination paper could not be held to contain in it the assent of the eight burgesses. That case is distinguish-able from ·the present case: In the present case, when the candi-dates concerned signed in token of their assent before the proposers

or the seconders had signed their nomination papers, the candi-dates knew that they were assenting to be put forward as candi-dates at the election and, subsequently, after the proposers and seconders had signed their nomination papers, they themselves took those nomination papers and presented them before the Returning Officer. Clearly, therefore, they indicated their assent to being nominated by the particular proposers and seconders, who ' signed their nomination papers, by taking the step, after their signatures, of carrying the nomination papers to the Returning Officer and presenting. them as valid nominations.

There is further the circumstapce that, though, in England, in the particular circumstances of the case in Harmon v. Park(l) it was held that nomination paper was invalid if slgned by the proposer after .it had been. signed by eight burgesses in token of their assent, the law as to nominations in India has through-out been interpreted different. As early as the year 1922, whea also the provision in respect of signing of nomination papers was similar, it was held by the Election Tribunal in Jamna Prasad v. ·Sri Krishna Prasad(Z) that :

"there is no rule as to the order in which names should be signed. On the other hand, ·the subscription by the candidate is .mentioned in the rule before that by the proposer and seconder. We should not read into the words of the rule any words which do not exist and '· say that the proposer and the seconder must sign their names before the subscription by the candidate him~ self; when the requirement is ·merely that the candidate must also subscribe to the paper as assenting to the nomination, that is to say, the naming of himself as candidate for the constituency. What has been done by the petitioner does not offend the words or the sptrit of the rule."

The Election Tribunal also took notice of the decision in Harmon v. Park (1) and distinguished it on the ground that that case could not apply where the subscription by the candidate himself and the making of signatures by the proposer and the seconder had only to be considered, while there was no question of assent of other persons like eight burgesses.

The same view was taken in the year 1924 by the Election Tribunal in the case of Rai Ba,hadur Prosanna Kumar Das Gupta v. Mr. Chittarania.1 Das([8]). In that case also, the Tribunal dis-tinguished the decision in Harmon v. Park(l) and, in addi-

(1) [l881J7Q.B.D. 369. (2) Case No. 121 reported at p. 79 of Doabia's Election Cases 1864-1935 Vol. II, 1955 Edn.

(3) C:tse ·N'l. 12() rep;>rted at p. 73 of D:>ama's Election Cases 1864-1935 Vol II, 1955 Edn.

tion referred to the .<fecision in Cox & Others v. Davies(!). ln the iatter case, Grantham, J., had occasion to deal with situation very similar to the one in the present case. He held :-

"The language o.f the present rule is not the same as that of the section upon which those cases were decided. It would require good deal to convince me that there is anything wrong in candidate filling his own name in after those of his proposer and seconder. In my own practical experience of electiom it is thing which is constantly done. If the signatures of the pro-poser and seconder were used for the purpose of filling m the name of candidate that they did not intend. that would be another matter. Harmon v. Park was very different case from this".

In this case the validity of the nomination paper was being chal-lenged on the ground that the candidate 'had filled in his own name after the proposer and seconder had already signed it and, yet, it was held that the nomination paper was valid on the ground that there was nothing to show that the proposer and seconder did not intend to nominate that particular candidate. In tl1e present case, there is nothing to show that the candidates did not intend to be nominated by the proposers and seconders who had signed their nomination papers after they had signed them in tokeq of their assent. On the other hand, as indicated above, it must be held that the candidates actually signified their assent to being nominated by the proposers and seconders, who had signed earlier, by presenting the nomination papers themselves to the Returning Officer.

Another Election Tribunal, in the year 1946, arrived at the same decision in the case of Mahant Digvijai Natlz v. Sri Prakash ( [2]). In that case also, the candidate had signed the nomination paper before it was signed by the proposer and secon-der. The Tribunal placed reliance on the decision in . Jamna Prasad v. Sri Krishna Prasad (supra) and held:-G "Even if it is assumed that strictly speaking the candidate must sign his name after the proposer and seconder have signed it, there is no direction in the rules that it should be so and that there is no "invalidat-ing consequence" provided for in the rules in case this. has not been done."

(I) [1891] 2 Q.B.D. 202

(2) Case No. XXIV reported at p. 147 of Indian Election Cases 1935-51 by Sen 4 Poddar.

[1971] 2 S.C.R.

In fact, the Tribuna: went to the extent of holding that :-

"It is not open to the returning officer to enquire in . what order the signatures had been made so long as the signatures are not found to be not genuine or obtained · by fraud." ·

In that case also, the Tribunal took notice of the two English decisions in Harmon v. Park(l) and Cox & Others v. Daviese) and inferred that it cannot be held that there is any natural order in which nomination paper should be filled up and signed and, unless there is something specific in the Rules, the fact that candidate gives his asserit on the nomination paper before the proposer and seconder had signed it or before the other entries had been com-pleted is of no consequence. Thus, when the Act was enacted in 1952, the law in India, as administered by various Election Tribunals, was clear that the order, in which signatures are made on nomination paper by the candidate; the .proposer and the seconder, is immaterial and no nomination .paper would be invalid / if the signatures are made by the candidate before the proposer and ·the seconder signed_ it. The Legislature, when enacting the Act, must be presumed to know that this was the law as inter-preted in India and, consequently, when the language incorporated in section 5 ( 2) of the Act was used, it must have been intended that nomination papers would not be invalid by reason of the candidate making his signature before the proposer and the secon-der. Even subsequently, a. similar provision in the Representation of the People Act, 1951, and the Rules framldi thert..ander for conduct of ~lections and election petitions, was interpreted in the same manner by the Election Tribupal in the case of Yamuna Prasad v. Jagdish Prasad Khare & Others([8]), · Consequently, it cannot be h~ld that, in the present case, the nomination paper of Shri Babu Lal Mag was invalid because he signed his nomination paper before it was signed by the proposer and seconder, or that the nomination paper of Shri Santosh Singh Kachhwaha was in-valid because he signed hi:> nomination paper before his seconder had signed it. 'J!le nominatio.t;t papers of both these candidates were, therefore, nghtly-accepted.

So far as the nomination paper of Dr. Ram Jlulare Tripathi is c~ncemed, th_e allegation was that it did not appear to bear the Signatur~s of the proposer and the seconder, be~ause mere look ~iJl rn~e it clear ex facie that the whole qf the nomination paper, mcludmg the signatures of the proposer, the seconder, and the candidate are in the handwrjting of one person.· This allegation was controverted by the Returning Officer in his counter-affidavit who has sworn that it did not appear to him that all the signatures (1) [1881] 7 Q.B.D.369. (2) [1881] 2Q.B.D. 202. (3) (1957-58) 13 E.L.R. 1

,_ I \ I j-' .-

were in one-handwriting and that he was satic;fied that the nomina-tion paper had been properly proposed, seconded and signed. After this counter-affidavit, when the petition was argued, learned counsel for the petitioner ·did not press this issue and did not try to produce any evidence to show that the signatures oi the pro-poser, the seconder, and the candidate were not genuine. Conse-B quently, the acceptance of the nomination paper of Dr. Ram Dutare Tripathi was not invalid.

Issue No. 4 in Election Petition No. 1 of 1969 and Issue No. 7 in Election Petitions Nos. 4 and 5 of 1969.

The ground covered by these issues is sought to be raised on the basis of the provisions contained in Art. 54 of the Constitution read with the definition of "State" contained in clause (58) of section 3 of the General Clauses Act, 1897. It was urged !hat~ under Art. 54, the Electoral College consists of the elected mem-bers of both Houses of Parliament, and the elected members of the Legislative Assemblies of the States. Relying on the definition of "State" in section 3 (58) of the General Clauses Act. it is argued that Union Territories are also States and, consequently, the elected members of the Legislative Assemblies of the Union Territories must also be included in the Electoral College. Their omission is material irregularity which vitiates this election.

· There are two reasons why, on the face cf it, this submission has to be rejected as t~ptenable. Article 54, no doubt, lays down that all elected m~mbers of the Legislative Assemblies of the States are to be included in the electoral college; but the word "States" used in this. Article cannot include Union Territories. It is true that, 'under Art. 367, the General Clauses Act applies for inter-pretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India; but that Act has been applie_d as it stood on 26th January, 1950, when the · Constitution came into force, subject only to any adaptations and modifications that may be made therein under Art. 372. The General Clauses Act, as it was· in 1950 and as adapted or modified under Art. 372, did not define "State" so as to include Union Territory. The Constitution was amended · by the Constitution (Seventh Amendment) Act, 1956, which introduced Art. 372A in the Constitution permitting adaptations and modifications of all laws which may be necessary or expedient for the purpose of bring-ing the. provisions of the law into accord with the Constitution as amendCd by the Seventh ~endment Act, 1956. It was in exer-H cise of this power under Art. 372A that section 3(58) of the Genera] Clauses Act was amended, so that, thereafter, ''State" as defined included Union Territories also. The new definition of "Staten in section 3(58) of the General Clauses Act as result

Qf modifications ·~hld adaptations under Art. 372A would, no doubt, apply to the interpretation o.f al11aws of Parliament, but 1t cannot apply to the interpretation of the Constitution, because Art. 367 was not amended and it was not laid down that the General Clauses Act, as adapted or modified under any Article other than Art. 3 72, will also apply to the interpretation of the Constitution. Since, until its amendment in 1956t, section 3 (58) of the General Clauses Act did not define "State" as including Union Territories for pur-poses of interpretation of Art. 54, the Union Territories cannot be treated as includ~d in the word "State".The second reason why it must be held that members of Legis-latures of Union Territories cannot form part of the electoral college under Art. 54 is that that Article confines the elect.:>r:ll cc;>llege to members o.f Legislative Assemblies of the States aud there are no Legislative Assemblies in the Union Territories. Under Art. 168, for every State there is to be Legislature which shall consist of the Governor, in certain States two Houses, and in some other States one House. The Article further lays down that, where there are two Houses of Legislature, one is to be known as the Legislative Council and the other as the Legislative Assembly and, where there is only one House, it is to be known a9 the Legislative Assembly. IOn the face of it, only members of Houses known as Legislative. Assemblies under Art. 168 can be members of the Electoral College under Art. 54. In the case of Union Territories, the provision for Legislatures is contained in Art. 239A, . but that Article does not mention that any House of the Legisl:~ure created for any of the Union Territories will be known as Legislative Assembly. All that Article lays down is. that Parliament may, by Jaw, create body, whether elected or partly nominated and partly elected to ;function as Legislature for the Union Territory. Such Legislature created by Parliament is not Legislative As~embly as contemplated by Art. 168 or Art. 54. Members of Legislatures createa for Union Territories under Art. 239A cannot, therefore, be held to be members of Legislative Assemblies of States They were, therefore, rightly excluded from the electoral college, so that the iss).le are decided against the election petitioners.

Issues Nos. 9, 9A and 10 in Election Petition No. 5 of 1969.

The nomination paper of Shri Phul Singh, petitioner in this election petition, was rejected on the ground that his nomination paper was not signed either by proposer or seconder, so that the nomiTlation paper did not comply with the requirements of section 5 (2) of the Act and was liable to be rejected under Rule 6 ( 3) of the Rules. This petition was argued by Shri Phul Singh in person, and the only argument that was advanced by him was that section 5 (2) of the Act, requiring that there must be nomi-nation signed by two electors as proposer and seconder, is ultra

vires the Constitution. According to him, he possessed all the qualifications for being candidate laid down in Art. 58. He had proved that he was an elector registered in Parliamentary comti-tuency by producing certified copy of the entry relating to him in the electoral roll. He had also produced certificate that he had resigned from government service and was not holding an office of profit under the Government. He relied on the electoral roll to show that he was citizen of India. He also produced copy of his High School certificate showing that he was not less th~!' 35 years of age. In these circumstances, according to him, his nomination paper could not be rejected on the ground that he had not been nominated by two electors as proposer and seconder. On the face of it,Jlis argument that section 5 (2) of the Act contra-venes Art. 58 or any other Article of the Constitution has no fore~ at all. Section 5 ( 2) of the Act was enacted by Parliament in exercise of its power of regulating all matters relating to or con-· nected with the election of President or Vice-President artd, in exercise of this power, Parliament was fully competent to lay down how candidate, otherwise qualified, must becom~ candidate by seeking nomination by two electors and to prescribe the detailed subsequent procedure leading up to the polling and declaration of _result. The requirement laid down by Parliament that every per-son must be nominated by two electors as proposer and seconder is reasonable requirement relating to regulation of election to the office of President and cannot be held to be curtailment of the right of qualified candidate to stand as candidate under Art·. 58. In these circumstances, the ground, on which the election petition has been filed, fails and, consequently, the petition is liable to be dismissed.

Issue No. 8 in Election Petitions Nos. 4 and 5 of 1969.

This issued was raised by the petitioners on the plea that Part Til of the Act, which includes section 18, ls ultra vires Art. 71 ( 1) of the Constitution, so that the petitioners are entitled to challenge an election of the President on groun4; other than those mentioned in section 18 c.f the Act. This contention fails in view of the finding o~ Issue No. 5 that Part Ill of the Act is not ultra vires Art. 71 of the Constitution and that Parliament did not act con-trary to the provisions of the Constitution in limiting the grounds of cha.llenge ~f ·an election in an election petition by enumerating them m section 18 of the Act. Consequently, the first part of Iss~~ No. 8 has to ~ answer~d in the negative, holding that the petitioners are not entitled to dispute the election of the respondent on grounds other than those mentioned in section 18 of the Act. The ~ther parts of the issue, as consequence, do no~ arise at alL The ISsue IS answered against the petitioners.

(1971) 2 S.C •. S.C •. •. L·.

Issues Nos. 9, 9A ~ 10 10

These issues oare based on the allegations made in·parag~pl( 15 / ... of the petition in which there is, iifst, general chat:g( th'a:t the' offence of bribery. was. freely comnutted at the electiO.l}. by the supporters of· the respondent (returned candidate), with his con· nivance, wi~ the object of inducing the electors to exercise their · vote in favour of the respondent. With this object, gratification · was offered and given to thep1. This general allegation is follow-ed by specific instance in which it is mentioned that liceuce for setting U!' an industry in Polyester Fibre was to be granteJ by the Go~ernment of India. The Punjab State Government also applied for the licence. The licence, was, however, refused to the public sector and was, instead, granted to private limited company m which Shri Sita Ram Jaipuria, Member of th~Rajya Sabha. who was also an influential elector, had financial interest. It was alleged that this licence was granted to the Company as .a gratifi-. cation with the object of inducing Shri Sihl. Ram· J dipuria and the electors under his influence to exercise their vote in favour of the respondent and against Shri Sanjiva Reddy, in whose favour they were intending to vote earlier. According to the petitioners, this licence was granted during the election period. further allega-tion ~~s ·made . that one Shri Kanwar Lal Gupta, Member of ~"Parliament, wrote letter to the Election Commission s~ating that · money was. being offered to some members to v<?te for the respon-dent; and, lrom this, it was alsq,clear that the offence of bribery was r~pant during the elections. · ' ·

r. So far as this second allegation relating to the letter of Shri Kanwar Lal Gupta, Member of Parliament, is concerned, no evid· ence was allowed to be tenderecl on it on behalf of the petitioners, because the allegation was it: very general fonn stating that the . offence of bribery was rampant; and this pleading was also based solely on letter written to the Election Commission. No specific · instances were 'cited and no particulars were given. On the face of it, general allegation that bribery was rampant in the elections pould not be made the subject-matter of specific charge of coni-mission of offence of bribery. ·

' ' Evidence was allowed to be led on the first charge which, if the ., facts had been proved to be true, could possibly constitute the offence of bribery. If, in fact, the licence had, been granted to ·a private limited company with the specific purpose of obtaining the vote of Shri Sita Ram Jaipuria, an elector and Member of Parliament, for the respondent, that could constitute bribery. · .However, from the evidence led on this issue on behalf of the peti-tioners themselYes, it appe:ars that no case at all of commission ·of the offence of bribery ·during the election period could possibly be established; and that appears to be the reason why, when argu·

. menta M Jaeud by the Court after the evidence had }leen reco~­cd, couusel for the petitioners did not even try to argue that this I oftence ol bribery had been ~tablished.. The. then Chief ~ter .of Punjab, Sar~ Gumam Smgh, and the Director of lndu:strtesi Punjab, were examined as witnesses on behalf of. the petitioners to . prove that an. application for grant of the licenc~ for Polyester Fibre Factory was sent to the 'Central Government on behalf of the · Industrial Development Corporation which was public limited concern;<>wned by the Punjab Government. · The petitio~ers also exami~cd the Director of Industries, U.P., the Registrar of Com-panies, U.P., and the Secretary of the Swadeshi Cotton Mills Ltd., Kanpur, to prove that an application was ~o presented 'for ,the licence for the same factory on behalf of Swadeshi Cotton Mills in which Shri Sita Rain J aipuria holds shares in his OWn name and 1 large number of shares are also held by his wife, his children, and other clos1 relatives. The Secretary to the Government of India, MinistiJ of Industrial Development, and the Under Secretary to the Go·t~ernment oi India, Ministry of Petroleum and Chemicals, were also produced as witnesses and they proved the fact that the licence for the Polyester Fibre Factory was granted in favour of Swadeshi Cotton Mills in preference to the public sector company,· the Industrial Development Corporatio~ owned by the · Punjab .Government. The evidence of the latter two witnesses-also, how-. ever, proved the' circumstances in which the lic.ence was granted to the Swadeshi Cott0n Mills, Kanpur, disregarding the claim of the Industrial Development Corporation Otf Punjab. According: to the evidence of these two witnesses, the procedure obtaining . is I' that all ap_Pl,ica~ions for such li~nces are first pro~ssed in ~e relevant Mmistnes and are exammed and completed 1f any futther material is to be obtained. The Administrative Ministry, _which in this case was the Ministry of Petroleum and Chemicals, prepares · note showing the various factors relating to each application which require to be taken into consideration. Thereafter, these applications come up for consideration before sub-committee of the Licensing Committee o.f the Government of India. · The Licensing Committee is large body which includes amongst ·its members Secretaries of various Ministries as well as representatives of Sta!e Governments..._ This ~ommitt~e-'l,I.QOi?~ s~b--committees . for hcences concerned . w1th specili~::~·:hrustnes of the Goverilii_lent. In the / cas~ . of the .-,P61yster Fibre Fact9ry, the meetmg of. f!le sub--coitlJptttee took pll:!ce o~ the 7th July, 1969 when the declSlon was taken to grant the licence to Swadeshi Cotton Mills, Kanpur. In accordance witb the rules, this decision· of the sub-committee was submitted to 1M_ Minister in charge of the Ministry of Industrial Development :who~ ·gave his approval in the second week of July. It was~ wbsequently that letter of intent for granting the licence to Swadeshi Cotton Mills was issued on behalf of the Government of India . on- 24th July, 1969.According to the procedure prevailing, any parties, who were claimants for licence and whose claims were rejected, had right to make representation after the issue of the letter of intent and their representation had to be considered by the full Licensing Committee. The meeting of the full Licensing Committee was actualy held on .the 13th November, 1969. At this meeting, representatives of the U.P. Government as well as the Punjab Government were present and they argued the cases on behalf of the two parties from their States, viz .• the Swadeshi Cotton Mills Ltd., Kanpur, and the Industrial Development Corporation, Punjab. It appears that it was on the basis of the fact that the letter of inJ:ent was is~ued on 24th July, 1969 that this charge of bribery was put forward by alleging that the licence was granted to Swadeshi Cotton Mills during the election period. As has been indicated.,'arlier, the decision about the grant of licence to Swadeshi Cotton Mills was taken by the sub-committee on the 7th July, 1969, and even the Minister in charge of the Ministry of Indus~rial Development gave his approval in the second, week of July. The candidature of Shri Sanjiva Reddy for· the office of the President · was decided upon by the Parliamentary Board o,f the Congress on 12th July, 1969, and the respondent announced his candidature for the first time on 13th July, 1969, which was the last but one day before the close of the second week of July. On the face o: it, the grant of the licence to Swadeshi Cotton Mills could not possibly have any relation to the candidature of either Shri Sanjiva Reddy or the respondent for the offi..ce of the President, and it is impossible to accept that the licence was granted to Swadeshi Cotton Mills for the purpose of inducing Shri Sita Ram Jaipuria to vote and exercise his influence in favour of the respondent. The grant of the licence was in due course in accordance with th~ procedure prevailing in the Ministry of the Government of India and had no relation at all with the candidature of the respondent for the office of the President which, in fact, was announced after that decision had already been arrived at. Consequently, the con-clusion follows that no offence of bribery was committed in the matter of grant of licence for the Polyester Fibre Factory to Swadeshi Cotton Mills; and this ground for setting aside the elec-tion of the respondent, therefore, fails and is rejected.

Issue No. 4(a), (b) & (c) in Election Petitions Nos. 4 and 5 of 1969.

This issue relates to the challenge to thr vt :~dity of the election of the respondent on the ground of c~mmi~ . .;)n of number ?f offences of undue influence under section 18(1)(a) and (b)(1) of the Act which lays down that, if the Supreme Court is of oplllion-

( a) that the offence of bribery or undue influence at the election has been committed by the returned

S, K. SINGH v. SH.Rl V, V. GIRl (Bhar~ava, J.)

. candidate or by any person with the connivance of the returned candidate; or (b) that the result of the election has been materially affected-

(i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor person acting with his connivance,

the Supreme Court shall declare the election of the returned candidate ~o be void. Section 18 (2) gives the definition of the words "bribery and undue influence" by laying down that, for tht: purposes of this section, the offences of bribery and undue influ-ence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code. In the Indian Penal Code, section 171 which defines "undue influence" is as follows :-

"171 C. (1) Whoever voluntarily inter,feres or attempts to interfere with the free exercise of any elec-toral right comm~ts the offence of undue influence at an election.

(2) Without prejudice to the generality of the provisions of sub-section ( 1), whoever-

. (a) threatens any candidate or voter, or any person in whom candidate or voter is inte-rested, with injury of any kind, or

(b) induces or :attempts to induce candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure.

shall be deemed to interfere with the free exercise oi the elc~ctoral right of such candidate or voter, within the meaning of sub-section ( l ) .

(3) declaration of public policy or promise of public action, or the mere exercise of legal right with-out. intent to interfere with an electoral right, shall r.ot 'be deemed to be interference within the meaning of this section."

To appreciate the significance o.f this definition, reference may also be made to clause (b) of section 1171 which defines "electoral right" as meaning the right of persun to :~tand, or P-Ot to stand as. or to withdraw from being, candidate or to vote or refrain from voting at an election. The definition of "undue 9L308Sup. Cf/71

influence" ~lso uses the word "injury,. in section 171C(2)(a), and this word has also been given special meaning under the Indian Penal Code, having been defined in section 44 as denoting "any hann whatever illegally caused to any person, in body, mind, reputation or property''.

In orde,r to decide whether the various a[1]legations made in the 8 two election petitions do constitute the collllilission of the offence of undue influence, it is necessary to .understand properly what acts constitute undue influence as defined in section 171 of the Indian Penal Code. Sub·section ( 1) of section 171C, in general terms, mak.es any act an undue intlue.n~.:~; ii it .i:ntetferes 01 attempts 1 ttl interferewith the free exercise ofany electoral right, a~d if it is ~ommitted voluntarily. Th~ question has arisen what acts ·can be .c held to inthfere with the free exercise of an electoral right. We are here concerned with the electoral right of voter which, according to the definition in s. 1 71A ('b), is the right to vote or refrain from voting. Undue influence can be. held to be commit-ted if . the person charged with the offence inte~res or attempts w· interfere with the free exercise of this right of voting or refrain· i ng from voting. When an elector exercises the right of vote; .it can be en~isaged that he goes through the niental pro~ess of first taking decision that he wiJl vote in favour of particular candi-date and, thereafter, having made up his mind, h~ has lo go and exercjse that electoral right by casting the vote in favour of the <.:andidate 'chosen by him. The 13jllguage used in section 171C 'E indicates that the offence of undue infi.uence comes in at the second stage when the offender interferes or attempts to interfere with the free exerci;se of that choice of voting in accordance with the deci-sion alreaqy taken by the voter. It, therefore, follows that, .if a;ny acts are done which merely influence the voter in making his choice 'hetween one candidate or another, they will not amount to Jnt~· fcrence with the free exercise of the electoral right. . In fact, all canvassing that is carried on and which is considered legitimate is . ·· · intended to influence the choice of voter at the first stage and that is q~.,tjte permissible. Once the choice ha.~ been made -by voter, there should be no interference with the free exercise by him of that choice by actually casting the vote, or, in the alternative, there may be case where voter may decide that he will not vote for any candidate at all, but' some acts are done which compel him to cast his vote. It is in such cases that the offence-of undue influence will be held to have been committed. The language used in the definition of ''undue influence" implies that an offence of undue influence will be held to have been committed if the elector~ having made up his mind to cast vote for particular candidate, does not do so because of the act of the offender; and this can only be if he ~s under th1eat or fear of some adverse consequence. When~ver any threat of adverse consequence is given, it will tend

to divert the elector from freely eiercisi,og bis electoral right by voting for the candidate chose~ by him fot the purpose. In case where the voter is threatened with an injury as defined in the Indian Penal Code. it has to be deemed under section 171 C( 2) (a) that it interferes with tbe free exercise of the electoral right of the voter; and the same applies if the elector is induced or attempt is made to induce him to believe that he or any person in whom be ia interested will become or will be rendered an o~ject of Divine displeasure or of spiritual censure. In the first case~ under· clause (a), it is temporal_harm illegally caused to the person. in body, mind~ reputation or property, while~ in the second case .. under clause (b), the interference is because of the fear of becom· ing an object of Divine displeasure or of spiritual censure. There· can, however. be cases where the threat may not be of an injury as defined · section 44, I.P.C., where the harm caused must be illegal. Cases can arise where there may be no illegality ;n the threatened consequence to the voter and, yet, it may interfere with the free ex:ercise of his right ro vote. An instance that can be cited is where father may threaten to disinherit his son in respect of property solely owned by the f~,tther unless his son voted for particular candidate or refrained from voting for some other candidate. The consequence of non.compliance with the wishes of the father would be the loss of inheritance to the son which is. not an injury as defined in section 44, I.P.C. Such an attempt by the father would clearly amount to exercise of undue inftuence· by him on his son. But, in cases where the only act done is 'for the purpose of convincing the voter that particular candidate is. not the proper candidate to whom the vote should be given, that act cannot be held to be one which interferes with the free exercise· of the electoral right.

It has. however, been argued that there may be case where such virulent propaganda may be carried on against candidate as may cloud the mind and judgment of the voters and alm0$t compel them to come to decision that they should not vote for that particular candidate. It was urged that, in such case, it should be held that undue influence was exercised on the voters. In considering this proposition, various aspects have to be kept in view. The first is that, if it is held that propaganda adverse to c~didate can am?unt to un~ue in~uence, it will be almost impos-sible to d.raw ~ line and ddferenh~te between legitimate propa-ganda which w11I amount to undue mfluence, and that which will not. Then comes the question of the reverse type of propaganda where particular candidate is so highly praised Jhat voters are influenced to the extent of considering him an excellent person well above all other candidates; and the question will be whether such an inftuence on the mind of voter can be held to be undue influence. More important than an these aspects. is -the scheme of

[1971] 2 S.C.R.

the law and the language used in it which, in my opinion, very clearly show that mere propaganda against candidate cannot be held to be exe-rcise of undue influence. The word "free" is used in section ' 171C, I.P.C., as qualifying "exercise" and not as qualifying the word ''vote". undue influence had been defined as interference with the exercise of free vote, possibly the definition COUld have been construed as indicating that influence brought (JD 8 the mind of voter so as to change the manner of his voting by affecting his choice and judgment in seleCting the candidate for whom .lle ~s going to cast hiS vote, would b.e. comprised within undue influence. The word "freen having been used as qualifying the word "exercise" gives the indication that the freedom envisaged is to cast ihe vote in accordance with the· choice already arrived at and, if such freedom of casting the vote in that manner is inter-fered with,! the offence of undue influence will be held to have been .committed. In Words and Phrases, Pennanent Edition, Vol. 17 by WC$t Publishing Company, the meaning of tbe word "free" in · various contexts accepted in America has been given, and the rele-vant meaning which can assist is in the following words :-D

"Within the constitutional provi~ion, elections are "free" when the voters are subjected to no intimidation or improper influence, and whenever .every voter is allowed to vote as his own judgment and conscience dictate."

This meaning clearly indicates that the question of freedom actuaJly arises at the stage when voter ::.1as already exercised his judgment and conscience, has decided which candidate he will vote for, and is then allQwed to cast his vote freely without any interference in the fonn df intimidation or improper ilnfl.uence.

very important aspect in considering this argume~t is that whatever meaning is given to the expression "undue influence" in the Act will also apply when interpreting the provisions of the Indian Penal Code, because the Act imports the definition of "undue influence" from section 171 of the Code. In the Indian Penal Code, new Chapter IXA was introduced by the Indian Elections Qffences and Inquiries Act 39 of 1920. The statement of objects and reasons attached to the Bill which culminated in that Act e~plained this provision by stating that :

"undue influence at an election is defined as the voluntary interference or attempted interference with the right of any person to stand, or not to stand, or withdraw from being, candidate, or to vote or refrain from voting. This covers all threats of injqry to person or p~operty and alJ iJiegal methods of persuasion and

any interference with the liberty of the candidates or the ele~tors."

The language used in aection 171 was, thus, intended to oover only cases where the interference comes at the stage when the elector must have liberty to cast his vote freel.y, having already made up his mind bow that vote is going to be cast. It is inter-B ference at this stagtj that was envjsaged as amounting to undue influence.

The subject of influence a_t the stage of making choice was dealt with in Chapter IXA of the Indian Penal Code under separate and distinct provision which is contained in section 171-G and is as follows :-

''Whoever with intent to affect the result of an election makes or publishes any statement purporting to be statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, shall be punished with fine."

This section clearly recognises that, at elections, there is bound to be propaganda in which candidates or their supporters may be issuing statements so as to influence the voters against their rival candidates, and it limits the prohibition by law to only thole state-ments of fact which are false, or. believed to be false, or believed not to be true, in relation to the personal character or conduct of any candidate. Propaganda can be not only by attacking the personal character or conduct of candidate, but even his political or public character and activities. On the face of it, section 171 envisages that propaganda of the latter type will not be treated as an offence. Only when the propaganda is in the form of false statements of fact relating to the personal character or conduct of the candidate that the law will punish the person indulging in it by making him liable to payment of fine. These false statements about the personal character or conduct of the candidate may, of course, be scurrilous and foul; ·but, even then, the offence commit-ted would fall under section 171G, I.P.C., which makes the offence punishable with fine only. On the other hand, an offence of undue ·influence <lS defined in section 171C, I.P.C., has been made punish-abe under section 171F, I.P.C., with imprisonment of either description for tenn which may extend to one year or with fine, qr with both. If it is held. that false propaganda against personal character or conduct of candidate can amount to undue influence, the person indulging in that propaganda would become liable to punishment under section 171F, I.P.C., which has been considered more serious offence by being made punishable with imprison-ment in addition to, or, in the alternative, with fine. This"inter-

.324 SUPREME COURT REPORTS

pretation would thus make section 171G, I.P.C., totally ineffective and . otiose. . otiose. If the false statements as to personal character or conduct are held to are held to to be punishable under sectior. 171F ·as constitnt· ·as constitnt· ing offence of undue influence, there would be no point in prose-no point in prose-point in prose-.cuting the same person for for the less serious offence under section 171G. In fact, section 171G would fact, section 171G would be fully covered by section I 71F and, consequently, the interpretation sclight to and, consequently, the interpretation sclight to he urged in these petitions has to be be rejected. pretation would thus make section 171G, I.P.C., totally ineffective and . otiose. . otiose. If the false statements as to personal character or conduct are held to are held to to be punishable under sectior. 171F ·as constitnt· ·as constitnt· ing offence of undue influence, there would be no point in prose-no point in prose-point in prose-.cuting the same person for for the less serious offence under section 171G. In fact, section 171G would fact, section 171G would be fully covered by section I 71F and, consequently, the interpretation sclight to and, consequently, the interpretation sclight to he urged in n these petitions has to be be rejected. It is true that, in the Act, there i:; no provision indicating that punlication by candidate, or by any other person with his con-nivance, of statement of fact which is false in relation to the personal character or conduct of another candidate will be deemed to be corrupt practice on the commission of which an election can be declared void. Such omission in the Act cannot. how.;:ver. be good n>:ason for enlarging the meaning of the offence of undue. influence so as to hold that an election of President or Vice-President must also be set aside On such ground. may be noticed in this connection that, in the Representation of the People I) Act, 1951, there is specific provision contained in section 123 ( 4) laying down that corrupt practice is constituted by the publication by candidate or his agent or by any other person. with the con-sent of candidate or his election agent, of any statem.:nt of fact which is false, and which he either believes to be false or dol!s not believe to be true. in relation to the persona] character or cond•Jcl of any candidate, or in relation to the candidature, or withdrawaL or any candidate, being statement reasonably calculated to pre· judice the prospects of that candidate·s election. In the Represen-tation of the People Act, 1951 also, undue influence i'> defined in almost the same language as that contained in section I 71C, l.P.C. In that Act, therefore, an election can be declared void not only ·On the ground of commission of the corrupt practice of undue influence, but also on the ground of publication of false propa~anda as to the personal character or conduct of candidalc. Parlia-ment, however, chose not to include any such provision in the Act which was passed when the Representation of the People Act. J 95 I had already been enacted and enforced. The Court is not concemed with the reasons which weighed with the Parliament in making such an omission in the Act when similar provision had been kept in the earlier enactment in respect of elections to the Central and State Legislatures. The omission may be. deliberate or accidental, but, in either·case, it is not for the courts to .attempt to fill up this gap bv enlarging the meaning to be given to the expression "undue influence" which is the corrupt practice incJuded in the Act as groun<i for setting aside the election. lt is clear from the scheme o.f Chapter IXA of the Indian Penal Code that false propaganda as to the personal character and conduct of

candidate was created as separate offence and the definiti0n given in section 171 of "undue influence" was not intended to lay down that such propaganda will amount to interference with the free exercise of electoral right so as to constitute undue influence.

The only case ~f this. Court dealing with the questi.Jn of undue influence under the Act is reported in Shrl Baburao Patel & Other~· v. Dr. Zakir 'Husain & Others(l), where the Court had to con-sider the distinction between canvassing and exercise of undue influence and held-

"It is difficult to lay down in general terms where mere canvassing ends and interlercnce or attempt at interference with the free exercise of any electoral right begins. That is matter to be determined in each case; but there can be no doubt that, if what is done is merely canvassing, it would not be undue influence. As sub~ section ( 3) of s. 171-C shows, the mere exercise of legal right without intent to interfere with an electoral right would not be undue influence."

The Court, after reviewing the relevant case law under the Repre-sentation of the Peop.!e Act, then proceeded to hold:-

"It will be see·n from the above review of the case!i relating to undue influe-nce that it has been consistently held in this country that it is open to Ministers to can-vass for candidates. of .their party standing for eJection. Such canvassing does not amount to undue influence but is proper use of the Minister's right to ask the public to support candidates belonging to the Minister's party. It is only where Minister abuse& his position as sucll and goes beyond merely asking for suppon for candi~ dates belonging to his party that question of undue influence may arise. But so long as the Minister only asks the electors to vqte for particular candidate belonging to his party anq puts forward before the · public the merits of his candidate it cannot be said that by merely making suc.h reques.t to the electorate the Minister exercises undue influence. The fact that the Minister's request was. addressed in the form of what i~ called whip is also immaterial so long as it is ~lear that there is no compulsion on the electorate to vote in the manner indicated."

ln that case, the Court thus envisaged that the question of undue " 1nfiuence torate to vote in the manner indicated by the person alleged will arise if there is some sort of compulsion on the elec-to

(1) [1968] 2 S.C.R. 133.

have committed that corrupt practice, and question of such com-pulsio~ can obviously arise only when voter, having made his choice as to the person for whom he wilt cast his vote, is under some pressure to vote for another candidate owing to the undue . influence exercised on him. The nature of interference, which would constitute undue influence, was further clarified when deal-ing with the letters issued by the Chief Whip of ~he Congress Party requesting members not to cast their second preference vote, by stating:-.

"Such request or advice does not, in our opinion, interfere with the free exercise of their electoral right. for the electors still would be free to do what they desired in spite of the advice.··

The Court, thus, envisaged that 1 .mdue influence is exercised whe11 an elector is not free to do what he desires, while influencing his desire will not be exercise of undue influence.

It has already been indicated above that the scheme of Chapter IXA of the lndian Penal Code and section 123 of the Representation of the People Act is quite similar inasmuch as, in both these enactments. undue influence is defined in almost iden-tical language and the publication of false statements as to the personal character ·of candidate has been separately made either criminal offence or corrupt practic.~ ]n practically the same language. Consequently, some assistance can be derived from th~ jnterpretation that has been given to the provisions cont~ined in ..;e.ction 123, sub-section (2) and ( 4) of the Representation of the People Act, 1951. Dealing with this aspect in the case of Ram Dial v. Sam Lal aizd Others(l), this Court first pointed out that the law in England relating to undue influence at elections is not the same as the law in India and, consequently, proceeded to inter-pret the law here without taking into account tht> principiM Jaid down in England. In that case, the question arose whether, what religious leader had done by issuing Hukat11 or Farman, :.1mounted to undue influence or not. The Court held' :-

"There cannot be the least doubt that religious leader has the right freely to express his opinion on the comparative merits of the contesting candidates ·and t0 canvass for--such of them as he considers worthy of the confidence of the electors. In other words, the religious leader has right to exercise his influence in favour of any particular .candidate by voting for him aPd by can-vassing votes of others for him. He has right to express his opinion on the individual merits of the candidates. Such course of conduct on his part will only be use

(1) [ 1959 I Suool. 2 s.C'.R. 7dR.

() / I • l [. ]' ' ~ :

of his great inftuence amongst particular section of the voters in the constituency; but it will amount to an abuse of his great infiuence if the words he uses in document, or utters in his speeches, leave no choice to the persons addressed by him, in the exercise of their electoral rights. If. the religious head had said that he preferred the appellant to the other candidate, because, in his opfuion, he was more worthy of the confidence of the electors for certain reasons, good, bad or indifferent, and add-ressed words to that effect to persons who were amenable to his influence, he would be within his rights, and his influence, however great, could not be said to have eeen misuse&. But in the instant case, as it appears, accord-ing to the findings of th~ High Court, in agreement with the Tribuna-l, that the religiou:; leader practically left no choice to the Namdhati electors, not only by issuing the hukam or farman, as contained in Ext. P. 1, quoted above, but also by his speeches, to the effect that they must vote fer the appellant, implying that disobedience of his mandate wCiuld carry divine displeasure or spiritual censure, the case is clearly brought within the purview of the second paragraph of the proviso to section 123(2) of the Act."

In that. case, thus, the CQurt envisaged that the 'Hukam' or 'Farman' issued by the religious leader was mandate, the dis-obedience of which would carry divine displeasure or spiritual censure, and it was for this reason that it was held that corrupt practice of undue influence had been committed.

In the case of1nder Lal v. Lal Singh(!), this Court explained the scope and purpose of sub-s. ( 4) of section 123 of the Repre-.F sentation of the People Act by pointing out that, for the protection of the constituency against acts which would be fatal to the free-dom of election, the statute had provided for the inclusion of the circulation of false statements concerning the private character of candidate amongst corrupt practices, and dissemination of false statements about the personal character of candidate had been constituted inl:o corrupt practice. This corrupt practice was envisaged as separate and distinct from the corrupt practice of und~Je influence mentioned in section 123(2) of that Act.

In the case of Lalroukung v. Haokholal Thangjom and Another(2), this Court dealt with case where there had been an assault close to the polling station after certain pamphlets had been issued, wherein thtWtts were freely canvassed and exhorta-

1 I l [1962) Suppl. 3 S.C.R. Jll4.

(2) Civil Appeal No. 13!5 68 1kcided on 9.1.69.

1iolli made that those, who opposed the candidates supported by

lhe two organisations (which issued the pamphlets), would not be .forgotten nor spared. The Court then proceeded to hold :-

"In the light of propaganda of this nature carried on \ before the polling days, it i~ impossible to view the assault as an isolated incident nor can it be legitimately argued that the conclusion of the Judicial Commissioner that it was culmination of those threats was either ari unreasonable or an unwarranted conclusion. There .can be no doubt that such rowdyism at polling station was b<)und to deter voters from coming to the polling station to exercise freely their franchise. We have no doubt that the assault by the appeUant's pol1inl agent attractw section 123(2), proviso (a), and that also rendered the election void.,.

Commissioner ari There polling station the polling We have no that also right by and threat on on

This was again case where the exercise of their· electoral right by :t~c voters was interfered by physical act of assault and threat on on voters who ·intended to vote for the rival candidate.

last case case of this Cout1 which may be referred is the deci-deci-Manubhai Nandlal Amersey v. Popatlal Manilal Joshi and Manilal Joshi and Joshi and and . I in which the effect effect of speech came up for considera-} it was was held:-• \ "The actual effect of the speech is not m<'!.;;rial. \ Corrupt practice is committed if the speech is calculated to ·interfere with the free exercise of electoral right and to leave no choice to the ~lectors in the matter. In considering the speeches, the status of the speaker and the character of the audience are relevant considera-tions."

The last case case of this Cout1 which may be referred is the deci-deci-sion in Manubhai Nandlal Amersey v. Popatlal Manilal Joshi and Manilal Joshi and Joshi and and .Others(!), in which the effect effect of speech came up for considera-tion and it was was held:-

This case also. thus, envisaged that there must be some element of compulsion on the voter to vote in particular manner before the act said to be corrupt practice can be held to amount to undue influence.

Coming to the decisions of the High Courts, the first case that may be cited is the decision of the Orissa High Court in Radha-kanta Mishra v. Nit.vanantfa Mahapatra and Anothere). Bammn. J .. explained undue influence in the following words :-

"A voter must be able to freely exercise his electoral right. He must be free agent. All influences are not necessarily undue or ufdawfu1. I•gitimate exercise of influence by political party or association or even an n I A.I.R. 1909 S.C. 734. !21 19 E.L.R. :!03.

individual should not be confused with undue in-ftuence. Persuasion may be quite legitimate <tnd may be fairly pressed on the voters. On the oth~r hand, pressure of whatever character, whether acting on the fears, threat, etc .. if so exercised as to over-power the volition without convincing the judgment is speck~s of restraint which interferes with the free exercise l)f elec-toral right. In such an atmosphere. the free play of the elector's judgment, discretion or wisht!s is overborne and this will constitute undut.: influence, though no force is either used or threatened. It is not necessary to esta-blish that actual violence had been used or even threatened. Methods' of inducement which are so powerful as to h:ave no free will to the voter in the exercise of his choice may amount to unJue influence. lma$inary terror may have been created sutlicient to depnve him of free agency.''

He, thus, distin~uished between influence which is exercised for convincing the JUdgment of voter, and influence ,he result of Which i.s that the free play of the elector's judgment, discretion or wishes is overborne and the elector is left no free will to exerci'c his choice. In this decision, thus, the distinction, as indicated above, is clearly brought out. In that case, however, picture with caption had been published as part of cover of booklet. and it was held that its publication amounted to exercise of undue influence. The reason is indicated when the learned Judge, .deal-ing with this poster, held :-

"The picture with the caption, as it stood, wa~ intended to be made catchy with an ulterior motive and was · deliberately published in that asked fom1 in order to create feeling of terror. fear and hatred and wa~ such compelling appeal to the mind of the voters as to amount to interference with the free exercise of voters' electoral right."

The picture in question showed dead boy with caption in Oriya which, translated in English. was to the effect: "Do not vote fo_r the Congr~s who killed Sahid Sunil". That picture. thus, dtd not contam any false statement or reJ'resentation as to the personal character of candidate; but Bannan, J., held :-

. "The picture of the dead boy wtth the caption was..-.. dtrect charge against the Congress that it killed the deceased boy. This was misrepresentatin of fact. It was as result of firing by the police that the boy unfortuna-tely got involved. We do not know whether the Congress Party took stern view of the firing, whether the Congress

r\ Party itself condemned the firing, and whether ultima-tely those responsible for the firing were reprimanderl and punished for the unfortunate incident. The catchy caption that the Congress killed the boy was false repre-sentation made by the respondent No. 1 with intent to strike terror into the mind of the \'Oters and thereby to interfere with the free exercise of electoral right of such terror-stricken voters. The picture with the caption was distortion of situation for political ends done with the intention as aforesaid. It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in their mind feeling of terror, fear, hatred or strong prejudice against the (" Congress. In the caption under the dead boy's picture was veiled threat to the voters that if tbey voted for the Congress who were capable of killing, then such Congress, so retained in power, would again,-as it actually did in the past, resort to such killing of men in whic;h the voters themselves or their children might also. be killed in the same way as it was openly demonstrated by the picture of the dead boy with the caption. It at least did create or was likely to create or had the ten-dency to create terror and an unknown fear in the mind of the voters. The picture of the dead boy with the capt~on frightened the voters or was likely to frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the voters."

It. will, thus, be seen that the main reason for holding tha~ the publication of the picture amounted to exercise of undue influence was that it created terror and fear in the minds of voters of per· sonal hann to themselves or their children in oase they voted for the Congress <;:andidate. The publication of the picture was not · held to be undue influence or interference with the electoral right because it contained false propaganda against the candidate M the Congress Party, but because 0f the element of compulsion which was envis<li@ed as arising in the minds or the voters not to vote for the Congress because of the fear of consequences which might be visted on themselves or their children in case they voted for the Congress. Bannan, J., in this connection. also referred to the decisions of .Election Tribunals in Sardul Singh v·. Hukam Shixh(l_), and Jujhar Singh v. Bhairon Lall(!) and agreed with. the prindples laid down in those cases. I shall indicate later the

(I) n E.I..R. 316.

C1' 7 E.U~ . 45"'.

ratio of those two decisions. The other two Judges, constituting the majority, differed from Barman, J., and held that the publica-tion of the picture did not amount to undue influence, because, in 1heir opinion, no inference could be drawn that the publication of this picture was intended to create fear in the minds of the voters. Rao, J., dealt with the submission of Mr. Rath, the coun-sel; that looic at the photo will make the voter think that, if he votes for the Congress Party during whose office the killing took place, he would be similarly killed and therefore it created fear in his mind and thus interferes with the free exercise of the elec-toral right. He rejected it by saying that, in his opinion, this was farfetched argument. He further held :-"The picture simply represents Sunil De after be.ing shot at by the police firing with the caption underneath "Do not vote for the Congress who killed Sahid Sunil" It does not say that, if the voter give their votes for the Congress, all the voters or some of them would be shot as Sunil De. Further, the shooting of Sunil De · is known to everybody and that is on account of police firing in connection with the States Reorganisation Committee Report's disturbances, the voters therefore cannot be influenced to think by publication of this poSter that if they voted for the Congress they would be shot at like that. It is also significant that there is noth~ng mentioned about this poster in the election campaign in the booklet on whose cover the photo is printed. The respondent No. 1, therefore, could not have intended to cause fear in the minds of the voters by publication of exhibit 3 in order to interfere with the free exercise of their votes."

:t' Das, J ., dralt with this aspect as follows :-

"Nothing- has been stated in the body of exhibit 3 relating to this picture. The picture simply represented dead person after being shot by the police firing with the caption : "Do not vote for the Congress who killed Saheed (Martyr) Sunil". Nowhere it was stated if the voters gave their votes to the Congress they would be shot at as Sunil. The further fact is that Sunil De was shot at by the police firing in connection with the dis-turbance arising ou~ of the recommendations of the States Reorganisation Commission of which the electors had known before. Thus, the voters cannot be said to have been influenced to think that if they voted for the Congress they would be shot at like Sunil. Hence, in my opinion, the resoondent No. 1 could not have intended to cause any fear in the minds of the voters by

[1971J 2 S.C..R.

the above publication to constitute interference with the free exercise of the electoral right of the voters.''

The decisions by these two Judges are, of course, of no help; but, as indicated earlier, even the decision of Barman, J., is in line with the view taken above and does not indicllte that mere false propaganda as t9 the personal character of candidate or even relating to the party sponsoring the candidate can amount to the corr:.~pt ·practice of" undue influence.

The next case which may be cited is another decision of the Orissa High Court in Abdul RaMman Khan v. Radha Kmshna Biswas Roy< ) . ln that case, the successful candidate had pub-lished poem and the question aro~e whether the publicatiQn of that poem amounted to exercise of undue influence. The Court 1irst, in general terms, dealt with the scope of undue influence by saying:-

··section 123 of the Act is rather wide in its term and contemplates four distinct forms of interference with the free exercise of any el.ectoral right. ~·iz., direct inter· ference. indirect interference. direct attempt at interfe· renee and indirect attempt at interference. There is nothing in· the definition that such intr.rference or attempt at interference should be by any method of compulsioo. Evidently. the offence includes such interference or attempt to interfere by any method, and it definitely in-eludes the method of inducement wherein there may not be any compulsion at all. The inducement again must be of such powerful type as would ]eave no free wiU to the voter in the exercise of his electoral right."

1l1is general explanation does not appear to be inconsistent with the view taken above, because it was held that. even if there be no compulsion at all, the inducement must be of such powerful type as would leave no free ,.,ill to the voter "in the exercise of his electoral right. The freedom of will envisaged. obviously. is to vote in accordance with his choice. On the facts in that case, it was found that. in the poem. there were threats against Raja of Kalahandi in whom the defeated candidate was interested. After referring to the Raja of Kalahandi. the objectionable portion read as follows :-"Without any consideration for your own and others, you acted as devil. Would anybody now be able to save you if you are beaten mercilessly? Having done all the above mischiefs. now you are appealing to the electors ior their vote as shameless person. If there

( J) A.I.R. 1959 Orissa 18~.

were grain of shame left in you, yoo would not have pfO&ressed at all. You are thief and Badmas and you should not remain our land. You who belong to the Ganatantra party are only fit for the gallows."

These words, clearly, contained threat to the life and were, therefore, rightly held to amount to exercise of undue influence. Similarly, another portion was to the following effect :

"The leudet,. of your Party wa'i making money by selling widows is well-known to the raiyas. Since there is not bit of sense left in you, you are now seeking votes of these raiyats of Koraput. They will no longer be dissuaded by your words."

1t was further stated that :

"the raiyats of this Constituency are bound to take revenge on you. How dare you ask for their votes?'' Again, the Court, in holding. that these publications amounted too cx:ercise of undue influence, was fully justified, because there were clcnr threats against the life of the candidate. The only other case of High Court that requires to be uoticed is the decision of the Punjab High Court in Amir Chand Tota Ram, Delhi v. Smt S1tchef<1 Kriplani(l). The Court ex pressed its view by holding :-

"The legal phrase ''undue inftuence·· denotes some-E thing legal1y wrong or violative of legal duty. In order to establish undue influence, it must be proved that the influence was such as to deprive the person affected of the free exercise of his will. It must amount to imposing restraint on the will of another whereby he is prevented from doing what he wishes to do or is forced

1o do which he dtles not wish to do.

An advice. argument persuasion or solicitation can· not wnstitute undue· influence. Honest intercession. even importunity, falls short of controlling person's free exercis~ of his will. persuasion. which leaves person free to adopt his own course, is not undue influence. Otherwise suggestion or an entreaty from :-omebody, held in esteem, could be treated as undue intluence. .In the absence of proof that person has been. in consequence of the alleged influence, deprived of free agency no question of there being an undue influence arises.

It is not objectionable to exercbe an influence by acts of kindnes"i or appeals to the free reason and understanding. So long as the free agenr:y of the other

(II A.I.R. 1961 P~. JR~.

person is not prevented or impaired by obtaining domi-nation over the mind of another, it cannot be deemed .as an exercise of an undue influence. The eSsence of ''undue influence' 'is that person is constrained to do against his will, but for the influence he would have refused to do if left to evercise his own judgment. It has to be shown that pers<'n's volition had thus been controlled by anc;>ther whereby he could not pursue his own .nclination, being too weak to resist the importunity and in view of the pressure exercised on his mind he could not act inteUigently and voluntarily and had become subject to the will of the other: who had thus obtained dominion over hl$ mind."'

This exposition of the scope of .. undue influence" is also in Jine with the view taken above. It envisages that the corrupt practice of undue influence is committed when person is constrained to do against his will and is J.mable to act in accordance with his judgment. Such position can only arise if the influence ·is brought on the person concerned after he has already formed his judgment and decided how he will exercise his efectoral right. Propaganda for the purpose of influencing the judgment, even If undesirable, cannot be held to be undue influence.

Coming to the cases of Election Tritunals, the earliest case that needs consideration is the decision in Sardul Singh Caveeshar v . .Hulwm Singh and Others (supra). In that case, the Tribunal held:-.

"It is not necessary that there shCluld be any actual threat or physical compulsion held out, but the method of inducement as may be adopted should convey ro the mind of the person addressed that non-~:ompliance with the wisbes of the person offering the inducement may result in physical or spiritual harm to himself or to any other person in whom he is i:iterested. Some fear of harm resulting from non-compliance \vith the request, thus, seems to constitute an essl~ntial element in "undur. influence".

On behalf of tile petitioners, emphasis was laid on the deci~ sion of the Election Tribunal in Jujhar Singh v. lJhairon Lall & Others (supra).

In that case, it was held :-

"It may be observed that an attempt to interfere by the method of compulsion is not necessary and that even the method of inducement may be sufficient, provid-ed it be o( such powerful type as would leave no free

will t0 the voter -in the exercise of his choice. In other words. actual physical compulsion is not necessary, but, positive mental compulsion may be enough to give rise to an undue influence."

After expressing this view, the Tribunal proceeded to hold that th~ 8 publication of particular poster amounted to exercise of undue influence. Referring to It, the Tribunal held :-

"The poster was, therefore, clearly designed not only to catch voters for respondent No. 1, but, also, to over-awe voters, the majority of whom were men of no better intelligence than ordinary illiterate villagers and to create feeling of positive prejudice, if not of terror as Well, in their minds against the petitioner."

Reliance was placed primarily on the last ··part of this quotation where the Tribunal held that the creation/ of feeling of positive prejudice in the minds of the voters can amount to undue influence. But this part of the sentence has to be read. in con-D junction with the earlier part where clear inference was drawn that the poster was clearly designed to overawe the voters. This was the reason why the Tribunal held that the publication of the poster amounted to undue influence, though, when defining undue influence in general, the Tribunal had clearly stated that the inducement must be of such powerful typ~ as would leave no frc;e will to the voters in the exercise of his choice. In statin~ this principle, the Tribunal was clearly referring to the stage when, having made his choice, the voter wants to exercise it in accord-ance with his free wilt and that free will is interfered with. -The Tribunal's decision is also, thus, in line with the view taken above.

The next decision of Tribunal, on which reliance has been placed is in Radha Krishna Shukla and Another v. Tara Chand Maheshwar and Others(); but that decision appears to be of no help as, in that case, replying on English decision, the Tribunal held that, before threat can be said to amount to undue influence, the question must be put, was it serious and· deliberate threat uttered with the intention of carrying it into effect, and proceeded to apply that test to the case before it. The Tribunal, therefore, dealt with situation where there was c1early threat to the voters. but even the threat in question contained in the slogan was held not to constitute corrupt practice, as there was nothing to show that the purpose of the slogan was to directly or indirectly inter-fere with any person's free ex~rcise of his electoral right.

In mrr Chand V. Smt. Sucheta Krivalani(2.)' the Tribunal, after quoting the definition of "undue influence" contained in

(I) E.L.R. 37!1. {2) I 8 E.l.R. 209. 10--UO~SunCl'7 [1 ]

section 123(2) of the Representation of the People Act, 1951, held:-

"The definition, no doubt, is in general tenns but it has an element of compulsion and it is an abuse of in· ftuence that wiH constitute undue influence".

These remarks also do not go contrary to the view taken above.

The last case that requires notice is the decision of Tribunal in Kataria Takandas Hemrai v. Pinto Fredaick Michael(') in which it was said :-

"A candidate, or as matter of fact, any person has every right to persuade people to vote in his favour at the election anp in that respect he is further entitled to be even critical of the policy and the acts of the rival party or its candidate and that way it may as well be legitimate for them to influence the voters, provided they did not tra1nsgress the legiti.!)late bounds of criticism. It is only undue influence which can be taken exception of, and, even though that term is wide enough to cover any interference with the exercise of the electoral right. one can justifiably calt any act as an interference only when it has in it an element of compulsio11 so as to give way to free thinking in the exercise of the electoral rights of the voters."

This case also, therefore, envisaged some element of compulsion as result of which voter is unable to exercise his electoral right in accordance with his judgment and choice. None of the decisions rendered so far by the Courts or Tribunals in India, thus; go conrrary to the view expressed above and, if at all. majority of them are in line with it. It is in the light of this interpretation of what undue influence means that this Court has to proceed. further to see which of the allegations made in 'lhe present peti· tions can amount to charges of undue influence and whether they have been established so as to vitiate the election.

The principal charge of undue influence, on which mass of evidence has been led by the petitioners. relates to the publication of pamphlet which contained scurrilous and vulgar allegations as to the personal character of Shri Sanjiva Reddy. ft is not necessary for me to set out the details of the contents of that pamphlet. It is sufficient to mention that. apart from allegations against Shri Sanjiva Reddy, there were no other allegations in it which could amount to threat of any adverse consequence to any voter in case he cast his vote in favour of Shri Reddy. Even

(1) 18 E.LR. 403.

)n the evidence, no witness stated that, as result of reading this pamphlet, he apprehended any adverse consequence either to him~ self or to anyone in whom be may be interested. No doubt, som~ witnesses stated that, on reading the pamphlet, they felt that, ~~ Shri Sanjiva Reddy is elected as President. the Rashtrapau Bhavan may become brothel; but that also does not amount to threat of nature which would constitute undue influence as explained above. Consequently, the publication of this pamphlet cannot constitute undue influence, so that it is totally unnecessary to go into the question whether it was printed, published and dis~ tributed at all; if so, by whom, and, further, whether such printing, publicafon or distribution was or was not with the connivance of the respondent. As I have held earlier. in the Act there is no provision made for setting aside election on the ground of publica~ tion of false statements as to the perSonal conduct or character of candidate even if it .affects his prospects in the election. so that no evidence need have been taken with regard to the printing, publication or distribution. of this pamphlet or with regard to the question as to whether there was any connivance by the respon-dent in its printing, publication or distribution. The challenge to the election of the respondent based on this petition fails on this preliminary ground. However, I may add that, having had the benefit of reading the judgment proposed to be delivered by n1y brother Sikri, J ., on these issues, I agree with his assessment of the evidence tende~ed by the parties and the findings recorded by him. These findings of fact are to the effect that, though the pamphlet was distributed by pt>st and in the Central Hall of Parliament. it has not been proved that this distribution was with the connivance of the respondent or that the distribution materially affected the result of the election. Consequently, even on the assumption that the publication of this pamphlet could constitute undue influence. the election of the respondent is not liable to be set aside.

Apart from this ground· based on the pamphlet. number of other instances of exercise of undue influence were also cited and relied upon in these two election petitions. These grounds have also been dealt with by my brother Sikri, J .• and some by my brother Mitter, J. I agree with their reasons and finding!. for holding that none of these charges of undue iniluence has been established, so that the challenge to the election of the respondent

on the ground of exercise of undue influence fails altogether.

I also agree w1th _the order directing parties to bear their own costs and the reasons for-that order given by my brother Sikri, J., in his judgment.

Issue No. 7 in Election Petition No. 1 of 1969, · Issue No. 9 in Election Petition No. 4 of 1969, and Issue -No. 1.1 in Election Petition No. 5 of 1969.

As result of the findings on other issues, the petitioners in none of these petitions are entitled to any relief, as no ground has been made out for declaring the election of the respondent as void.

Mitter' J. I have had the benefit of reading the judgments of my col~eagues. The facts leading up to the filing of' these -peti-tions and the is~ues settled therein have been set out in the judg ment of my learned colleague, Bhargava, J. I am in agreement with him in his conclusion on issues other ~an is~ue No. 4 in Election Petitions 4 and 5 of 1969. l regret t<;> have to differ from my other colleagues on this issue. As Petition No. 5 is more comprehensive than Petition No. 4 I prefer to refer to the allega-tions made in Petition No.-5 alone. Leaving out of account the technical grounds on which the election has been cha1l~nged, the petitioners have asked for declaration that the election be declar-ed void on the following grounds :

(a) that the o~ence of undue influ-ence at the election had been committed by --the returned candidate (hereinafter referred to as the 'respondent') _arid by his supporters. with the connivarce of the respondent as mentioned in paragraph 8 (a) and various sub-paragraphs of 13 (b) and (c) of the Petition.

(b) The result of the election was materially affected by reason of the offence of undue influence at the ele-ction having been committed by_ persons mentioned in paragraph 13 of the petition.

Undue influence is alleged to have been committed in diverse ways on various persqns details whereof are given hereinafter.

Paragraph 13 of Petition No. 5 purports to give summary of the events which are alleged to have formed the background in which the off~nces were said to have been committed. Put briefly they are as follows :

( 1 ) After the demise of the late Dr. Zakir Hussain, the Prime Minister of India who was also an ·inftuential leader in the Cong· ress Party too~ the view that the respondent who was then the Vice-President of India should be adopted as the Congress candi-date for the office which had fallen vacant. This was not. acceptable to all her colleagues in the Congress . Parliamentary Board (hereinafter referred to as the 'Board')-a body which had in the past selected the party's candidate for tbe office of the Presi-dent. The controversy which thus arose could not be settled because of want of _unanimity of opinion and the matter was left to be decided at the Bangalore Session of the All India Congress Committee (hereinafter referred to as the 'Committee') to be held in July 1969.

(2) No consensus being attained at the ineeting of the Board held in Bangalore on July 12, 1969 the matter was deci<ied by voting. The Prime Minister and Sri Fakhrudin Ali Ahmed voted for Sri Jagjiwan Ram while Sri Morarji Desai, Sri Y. B. Chavan, Sri S. K. P1til and Sri Kamaraj vo.ted in favour of Sri N. Sanjeeva Reddy.

( 3) The decision of the Board greatly upset the Prime Minis-E ter and she then and there threatened the members of the Board that it would lead to serious consequences and· that she should not have been over-ruled in that manner.

( 4) The official announcement of the selection of Sri Sanjeeva Reddy as Congress candidate for the office of the President of India was made on 13th July 1969 and on the same day the res-pondent who was then acting as the President of India called Press conference at Rashtrapati Bhavan whereat he announced his candidature for the office of t)le President. He issued state-ment condemning the selection of Sri Sanjeeva Reddy as based on partisan considerations and emphasised that candidate for the highest office in the land should possess character, integrity, patriotism, experience and good record of service an.d sacrifice. According to the petitioner there was insinuation that the above requisite qualifications were lacking in Sri Sanjeeva Reddy.

( 5 ) Being upset by the decision of the Board·, the Prime Minister without a·ny consultation with her colleagues in the Cabinet advised the Acting President of India that she would

( 11 ) This was followed by certain correspondence by and bet~een Sri Fakhrudin Ali Ahmed and Sri Jagjiwan Ram jointly on the one hand and Sri Nijalingappa on the other, as also by and between Sri Nijalingappa and the Prime Minister from August 11 to August 15. The correspondence showed an open cleavage between the members of the party and it became clear that the Prime Minister and her colleagues in the Cabinet and their sup-porters made the issue of the success at the election by defeating the group whic_h opposed her at the meeting of the Board on July J 2, as one of prestige and political survival of the Prime Minister.Against the above background the offence of undue influence was said to have been committed by the returned candidate and some persons named and unnamed and described as the workers and supporters of the respondent with his connivance by volunta-rily interfering and attempting to intedere with the free exercise of the electoral rights of the candidates and the electors in general and some of them named in particular. (a) According to paragraph 13(b)(ii) of the petition Sri S. Nijalingappa, Sri S. K. Patil, Sri K. Kamaraj, Sri Morarji Desai and Sri Y. B. Chavan, electors at the election were threatened by the Prime Minister on the 12th July at Bangalore with serious consequences with the object of unduly influencing them so as to make them change their decision to nominate Sri Sanjeeva Reddy as their candidate. The threat is alleged to have been repeated subsequently on number of occasions. It was also said to be direct attempt to dissuade Sri Sanjeeva Reddy from standing as candidate.

(b) In paragraph 13(b)(iii) of the petition it was stated that with the object of interfering with the free exercise of the electoral rights of Sri Sanjeeva Reddy, Sri Nijalingappa, Sri Kamaraj and others, electors at the election, supporters of the respondent viz., Sri ,Jagjiwan Ram, Sri Yunus Saleem, Sri Sashi Bhushan, Sri Krishna Kant, Sri Chanresekhar, Sri Jagat Narain, Sri Mohan Dharia and Sri S. M. Banerjee in particular and other supporters and workers of the respondent in general, with the consent and connivance of the respondent published by free distribution pamphlet, annexure A-38 to the petition, in Hindi and English, in cyclostyled form as well as in printed form in which serious alle-gations, as already noted, were made amounting to the commission of undue influence upon the persons named within the meaning of s. 171-C l.P.C.

(c) According to paragraph 13 (b)( iv) of the petition this pamphlet was distributed from 9th to 16th August among all the electors of the electoral college for the Presidential election. It was distributed in the Central ha11 of Parliament by the above·

named persons i.e. Sri Jagjiwan Ram and others. large num· of electors were asked to read the contents of the pamphlet, and were also asked to say whether they would vote for such debau-chee and corrupt man. An instance of this is given 'in paragraph 13(b) (iv) of the petition: Sri Yunus Saleem approaching Abdul Gani Dar, one of the petitioners and talking to him as above in the presence of other members of Parliament.

(d) The petitioner, Sri Abdul Ghani Dar, took strong excep-tion to what was going on and wrote letter to the respondent endorsing copy thereof to the Prime Minister and Sri Humayun Kabir requesting the respondent to condem~ those who had pub-lished the pamphlet and make public statement dissociating him-self fr()m and denouncing the publishers of the pamphlet.

(e) The respondent himself during his tour of the country addressed pressmen and members of the public at variou~ places <'!nd repeatedly stated that man of character and integrity should have been selected.

(f) According to paragraph 13 (c) (i) the supporters of the respondent, namely, the Prime Minister and some of her Cabinet colleagues 1ike Sri Jagjiwan Ram, Sri Fakhrudin Ali Ahmed, Sri Yunus Saleem, Dr. Karan Singh, Sri Dinesh Singh, Sri Swaran Singh, Sri I. K. Gujral, Sri S. S. Sinha, Sri K. K. Shah and Sri Triguna Sen misused their position for furthering the prospects of the returned candidate by contacting large number of electof'l on the telephone and openly telling them that if the electors did not vote for the respondent they would lose all the patronage which they would otherwise be given. Electors were called by some of the abovenamed Ministers at their offical residences and offices in Delhi and undue influence brought to . bear upon them by ordering them to vote for the returned candidate.(g) According to paragraph 13(c) (iii) of the petition Sri Fakhn.idin Ali Ahmed and Sri Yunus Saleem threatened the Muslim electors that Sri Sanjeeva Reddy was in fact candidate of the Jan Sangh Party and if he was elected the fate of the .. Muslim community in India would be in danger; This uQdue · influence was exercised over all the Muslim electorS in the country and speCially those in Parliament. An instance- ·of this is given as having taken place between Sri Yunus Saleem and Sri Abdul Ghani Dar.

(h) The workers and supporters of the respondent became desparate and demanded freedom of vl)fe ar the election so that the members of the Congress party may not feel themselves bound by their party affiliation to vote for Sri Sanjeeva Reddy. It was stated that such scare was created that the President of the U.P.

Congress Committee, Sri Kamlapati Tripathi and the Chief Minis-ter Sri C. B. Gupta who had on August 6, 1969 addressed meet-ing for solidly backing Sri Sanjeeva Reddy changed their stand and on the 13th A~gust, 1969 Sri Kamlapati Tripathi also plead-ed fer freedom of vote. (I) According to paragraph 13 (c) ( v) (c) ( v) ( v) v) scare wru. raised

(I) According to paragraph 13 (c) ( v) (c) ( v) ( v) v) scare wru. raised and undue influence exercised on the minds of the members of the Legislative Assembly of Bengal that if successful Sri Sanjeeva Reddy would enforce President's Rule in Bengal wiping off the United Front Government and the legislative assembly. Accord· ing to paragraph 13 (c) (vii) similar scare was raised with regard to enforcement of President's Rule in Andhra P-radesh. According to paragraph 13 (c) ( x) the returned candidate, the Prime Minister, Sri JagJiwan Ram, Sri Fakhrudin Ali Ahmed and ethers entered into consoiracy calculated to maintain the. said Ministers in their office by the allegation that Sri Nijalingappa had entereJ into an arrangement with the leaders of the Jan Sangh and Swatantra Party to oust the Congress Government from the Centre and to establish Coalition Government.

There are other allegations of undue influence in the said paragraph but as they were not pressed no further notice need be taken of them.

In paragraph 14 of the petition it was stated that the result of the election had been materially affected by reason of the com-mission of the offence of undue influence at the election by the persom mentioned in paragraph 13 of the petition.

In paragraph 16 of the petition it was stated that in case the Court came to the conclusion that the offences mentioned above, . the ugh ~ommitted were no~ conniv~d at by the responde~t, still the election ought to be declared void as the result of it had been materially affected by the above practices.

In the counter affidavit filed by the respondent the above charge~ were all denied and the correctness of the statements dis-puted. The resondent stated expressly that for want of know-G 1edge he could not traverse· the allegations in the various sub-paragraphs of paragraph 13 of the petition except those which w~re made agains~ h~m or imputed to him and alleged to.-have been sa1d or done at h1s mstance or with his connivance. He ~tated categorically in paragraph 25 of the counter affidavit that he had been carrying on his campaign single handed and that in between July. 30 a_nd 13th August he was out of Delhi most of the time tounn~ d1fferent parts of the country. He disputed the correct-ness of the charges made in the · various sub-paragraphs of para-graph 13 and denied that he had been contacted by the Prime

Minister at Delhi from Bangalore as alleged or that she had sug· gested that as soon as an official ·announcement 1egarding the selection of Sri Sanjeeva Reddy was made he should announce , his own candidature for the office of the President. With regard to his press conference he said that he had only outlined the neces· sary qualifications for the office of the President and that his statement could by no m~ans be read as an attack on the personal conduct or character·of Sri Sanjeev Reddy. He said further that he had approved of the taking over of the portfolio of Finance from Sri Morarji Desai on the 16th July on the recommendation of the .Prime Minister but the signing of the Bank Nationalisation Ordinance had nothing to do with the Presidential election. He stated in clear terms that he had no knowledge of any of the state-c ments relating to printing, publishing and distribution of the un· signed. pamphlet, whether printed or otherwise and he completely dissociated himself therefrom. He denied the insinuation that he had anything to do with the Prime Minister's alleged call for free vote to get support for himself. He characterised the allega· tions regarding the publication and distribution of the pamphlet mentioned .in the petition by anybody as his supporters or workers with his consent and connivance, as reckless, wild and false. He denied having received any letter from Sri Abdul Ghani Dar as mentioned in the petition or any copy of the pamphlet. He denied ever having hinted in any of his public addresses anything deroga-tory tn the personal conduct or character of Sri Sanjeeva Reddy. With regard to paragraph 1 3 (c) ( i) of the petition }l~ stated that he was not aware of any of the persons having acteo in the manner al1~ged therein. With regard to paragraph I 3 (c) ( ii) and (iii) as also 13 (c) (x) he disclaimed an knowledge.

On 21st January 1970 the Court directed the petitioners to furnish several particulars of the petition mostly relating to para· graph 13(b)(iii), 13(b)(iv), 13(c)(i) and 13(c)(iii). In compliance with the same the petitioners gave inter alia the follow. ing particulars.

With regard to paragraph 13 (b) (iv) they stated "that the persons who had distributed the pamphlet between the 9th and 4 16th August 1969 were already mentioned in paragraph 13(h)(iii) and some other persons who had done so were being mentioned in particulars furnished to paragraph 13 (b) (iii), namely, Sri Maulana Ishaq Sambli, Sri Akbar Ali. M.P.. Sri Bhupesh Gupta M.P. and Sri Randhir Singh M.P. With regard to the place and date on which the persons mentioned in paragraph 13 (b)( iii) were alleged to have distributed the pamphlet it was said that o:1 9th Au~ust 1969 Sri Sashi Bhushan M.P. and Sri Krishan Kant M.P. had together distributed copies of the said pamphlet to various members of Parliament at the latter's residence

;~ !-· t~

in New Delhi. It was also said that the pamphlet had been distributed by leaving the same at the residence of nine o~her electors at their residence on 9th August late in the evenmg. Little attempt was made to prove these statements.

The names of 18 persons were given as having received the said pamphlet at their residence by post in various places in India. • They were all members of the Legislative Assemblies of Uttar Pradesh as also of Madhya Pradesh, Bihar and Chandigarh. Of these some but not all were examined in court.

Further, with regatd to distribution of the pamphlet it was said that the persons already mentioned in paragraph 13 (b)( ill) as also thQse mentioned in reply to the application for particulars given above distributed the same individually and in groups of two or more on all days between 11th and 15th August to the general body of electors frequenting the Central hall of Parliament. The names of 29 members of Parliament were given as the reci· pients of the pamphlets in the above manner. Further groups of M.Ps. were mentioned as. having distributed the said pamphlet's to some or other of the petitioners on the 11th August 1969 in the Central hall of Parliament. With regard to the telephone calls by Ministers exercising undue influence over the members of the electoral college referred to in paragraph 13(c) (i) about 30 M.Ps. were named as having been so contacted by 11 named Ministers including the Prime Minister, Sri Fa.khrudin· Ali Ahmed, Sri Jag-jiwan Ram, Sri Yunus Saleem and Sri I. K. Gujral. ·With the exception of three of them, namely, Sri Fakhrudin Ali Ahmed, Sri Yunus Saleem and Sri J. r·. Gujral, no attempt was made to S[1]lbstantiate the above. I do nc · think it nece3sary to dilate more on. the correctness of the particulars and the attempt to establish the same except to say that 1it1le effort was made to establish the allegations which were verified either as true to the knowledge of the deponent, Sri Abdul Ghani Dar or as being based on informa-tion received by him from the persons named, some of whom were called as witnesses but did not support the version of Sri Abdul Ghani Dar as given in the particulars.

For the sake of convenience issue No. 4 is reproduced below Issue 4 in Election Petitions Nos. 4 and 5.

(a) Whether all or any of the allegations made in paragraphs 8 (e) and 1·3 (a) to ( m) of the petitions constitute in law an offence of undue influence under s. 18( 1) (a) of the Presidential and Vice-Presidential Elections Act of 19 52 ?

(b) Whether the said allegations made in para-graphs 8 (e) and 13 (a) to ( m) are true and proved ? (c) In the event of these allegations being proved constituting undue influence, whether

(i) the returned candidate has committed the offence of undue i:1fluence?

(ii) Whether undue influence was committed by his workers and if so. with his connivance ? and

(iii) Whether undue influence was committed by others without his connivnnce and if so, whether that has materially affected the result of the election '!

Before going into the evidence adduced one must note the provisions of the law relating to the election of the President of India and in particular the grcunds on which such an election can be challenged and then briefly consider the history of the law of Undue influence generally and examine the statutory provisions of · the' Jaw of undue influence applkable to elections and the expo-sition thereof in India.

Art. 71 ( l) of our Constitution provides that all doubts and disputes arising out of or in connection with the election of President or Vice-President shall be enquired into and decided by the Supreme Court whose decision shall be final. Sub-cl. ( 3) of that article lays down that :

"Subject to the provisions of this Constitution, Par-liament may by law regulate the matter relating to or connected with the election of President or Vice-President."

By Act 3 I of 1952, the Presidential and Vice-Presidential Elec-tions Act (hereinafter referred to as the 'Act') Parliament made provisions for the conduct of Presidential and Vice-Presidential elections. 1 Disputes regarding elections are dealt with in Part III of the Act containing sec~ions I 3 to 20. S. 16 of the Act lays down the reliefs which may be claimed by petitioner and s. 1 R specifies the grounds for declaring the election of returned can-didate to be void. The relevant part thereof reads as follows :-

" 18 ( I ) If the Suoreme Court is of opinion-

( a) that the offence of bribery or undue influence at the election has been committed by the returned can-didate or by any person with the connivance of the returned candidate; or

(b) that the result of the election has been mate-ria!Iy affected-

( i) by reason that the offence of bribery or undue h'lfluence at the election has been committed by ~'ly

person who is neither the returned candidate nor per-son acting with his ~;onnivance;

(:) II: * • • •

Th: Supreme Court shall declare the election of the returned candidate to be void.

\2) For the purposes of this section, the offences of bribery and undue inftoence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code (Act 45 of 1860) .''

Section 21 contained in part IV provides for the making of rules to give effect to the Act. The provisions in the Constitution and the Presidential and Vice-Presidential Elections Act of 1952 and the Rules framed thereunder form complete code relating to such elections and all doubts and disputes regarding the vali-D dity of such elections which can be adjudicated upon by the Supreme Court must arise within the limits specified thereby.

Chapter IX-A of the Indian Penal Code which deals with offences relating to elections was introduced by the Indian Elections Offences and Inquiries Act. 39 of 1920, section 2. S. 171-A in that part defines candidates and electoral right. Bribery is defined in s. 171-B. Undue influence at elections is covered by s. 177-C which runs as follows:-

"( 1) Whoever voluntarily interferes or attempts to interf~re with the free exercise of any electoral right commits the offence of undue influence at an el~ction .

(2) Without prejudice to the generality of the pro-visions of sub-section ( 1 ) . whoever-

(~) threatens any candidate or voter, or any person in whom candidate or voter is interested. with injury of any kind, cr

(b) induces or attempts to induce candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure,

shall be deemed to interfere with the free exercise of the electoral right of su~~ candidate or voter, within the meaning of sub-section (I ) .

(3) declaration of public policy or promise of public action, or the mere exercise of legal right without intent to interfere-with an electoral right, shall not be deemed to be interference within the meaning of this section."

promise

Under s. 171-F whoever commits the offence of undue influence . or personation at an election shall be punished with impri!Ollment of either description which may extend to one year or with line or with both. Under s. 1 71-G :

"Whoeve.r with in!e:It to affect the rsult of an elec-tion. makes or publishes any statement purporting to be statement of fact which is false and which he either knows or believes to be false and does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine."

It will be noted that the words used in sub-s. ( 1) o~ s. 171-C are very wide and sub-s. (2) though illustrative of sub-s. (1) does not purport to comprehend all the facets of undue influence under sub-s. ( 1). The statement of objects and reasons of the Act ~f 1920 make the intention of the legislature clear. It reads :

"The second sub-clause is merely ex!)lanatory of the general definitions in the first sub-caluse and does · not restrict the generality of the words used there. We have considered the criticisms of this clause based on the generality of the words employed but we are satisfied that atiy attempt at specific enumeration would be open to serious danger of loopholes in what we regard as most salutary provision.''

On the facts of this case the vital question before us is, whether the mere publication of false statement highly derogatory of the personal conduct or character of candida!e or the dissemination of scurrilous pamphlet depicting candidate as one of lacherous character will fall under sub-s. ( 1 ) of s. 171-C or whether in order to prove the commission of the offence the election petitioner must go further and establish that there was an attempt on the part of some persons to interfere with the free choice of candidate on · the part of th'e voters by making use of the pamphlet so as to deflect their will and restrict their choice to persons other than the one defamed.

Undue influence is an old and well known English legal con-cept. Before the e~pression c~me .to .be used in liti~ation over ·elections 1t had acqmred defimte s1gmficance to Enghsh lawyers although its exposition in common law was somewhat different from that which the equity lawyers gave it. The concept was

developed along particular line by Judges in England trying election disputes and our Indian law has by and large followed the same pattern. According to Anson on English law of Contract (22nd E<\ition) Chapter VII:

"A contract which has been obtained by means of pressure or intimidation is voidable at common law or in equity on the ground of duress. At common law the definition of duress is narrow one, and only the more extreme forms of coercion will suffice. In equity, how-ever, owing to the development of the doctrine of cons-tructive fraud, contract may be rescinded in cases where common law provides no remedy....... At common law duress consists in actual or threatened violence or imprisonment; the subject of it must be the contracting party himself, or his wife, parent, child, or other near relative; and at it must be inflicted or threa-tened to be inflicted by the other party to the contract, or at least it must be known to him when he entered into the contract." (see p. 243).

The learned author goes on to say at pages 244 and 245 :

"Equity, on the other hand, will treat contracts as voidable when they have ben induced by forms of pres-sure or coercion which do not amount to duress at com-mon law. 0. 0 0

The term 'undue influence' has sometimes been used by the Courts to describe the equitable doctrine of coercion which has just been referred to, but it also includes, and it would perhaps be convenient to confine it, forms of pressure much less direct or substantial than those already discussed. It may arise where the parties stand to one another in relation of confidence which puts one of them in position to exercise over the other an influence which may be perfectly natural and proper in itself, but is capable of being unfairly used. * * *

If it can he shown that one party exercised such dominatio!l over the mind r.nd will of the other that his independence of deci-sion was substantially undermined, the party whose will. was over-borne will be entitled to relief on the ground of undue mftuence.

There is no need for any special relationship to exist between the parties, although, of coutse, it may do so. The mere fact that domination was exercised is sufficient; no abuse of confidence need be proved."

According to Cheshire and Fifoot on the Laf of Contract (7th Edition) p. 264 :

''The Courts have never attempted to define undue influence with precision, but it has been described as "some unfair and improper conduct, some coercion from outside, some overeaching, some form of cheating, ·and generally, though not always, some personal advantage obtained. by" the guilty party."

So far as the English Law of Elections on which principally our election Jaws are based is concerned, reference may be made to some of the well-known text books on the subject. According to R~gers Parliamentary Elections and Petitions. 20th Edn. Chapter XI p. 325 .:

"In England corruptly influencing voter, whether by· the more direct and grosser form of treating or the more indirect and subtler form of wagers was always an offence as species of bribery; but unduly influencing voter was not, before the 17 and 18 Viet. c. 1 02, an offence in the strict sense of the word, although its pre-valence is mentioned in many resolutions of the House of Commons, and many statutes have been passed to prohibit the evil in particular i:t:tstances; and although vote unduly influenced is void at common law, and will be struck off on scrutiny."

The learned author goes on to add :

"As early as 3 Edw. 1, c.5, which is declaratory of the common law, thus, in affirming the vital principles of freedom of election, said, ''Because election ought to be free, the King cornmandeth, upon forfeiture, that no man by force of arms, nor by malice or menacing, shall disturh any to make free election.''

Rogers notes that in the case of Lichfield (1869) 1 O'M & H. 25, Willes, J. defined undue influence as

"using any vioh:nce or threatening any damage, or resorting to any fraudulent contrivance to restrain the liberty of voter, so as either to compel or frighten him into. voting or abstaining from voting otherwise than he Ireely wills."

In the same case the learned Judge added (at p. 28) :

"The law cannot strike at the existence of influence.. The law can no more take away from man, who has property, or who can give employment, the insensible but powerful influence he has over those who he can benefit by the proper use of his wealth, than the law

could take away his hon~ty. bis aood feolina, h!s courage, his good looks, or any· other qualities . which Jive man infiuence ·over his follows. It is the ab1.11e of influenc-e with which alone the law can deil. In1luence cannot be said to be abused because it exists and op&-rates. It is only abused in cases of this kind, where an inducement is held out by promise ...........•.. to induce voters to vote or not to vote at an election.''

This case was decided upon 17 and 18 Viet. c.102, section 5.

According to Rogers the following are the principal kinds of improper influence:

1. The use of open force or violence, or the threat thereof.

2. The infliction of any temporal injury, damage, hann or loss or by the threat thereof. 3. The infliction of any spiritual injury, damage, harm or lossy or by the threat thereof.

4. The impeding etc. the due exercist>; of the franchise etc. by abduction, duress, or any fraudulent device or contrivance.

Section 101 of the Representation of the People Act, 1949 appears to be that latest codification of. the English law on the su~ject of undue influence. Under sub-s. (1) person shall be guilty of corrupt practice if he iS guilty of undue influence. Sub-s. (2) of the section is in two parts. Under cl. (b) person shall be guilty of undue infiuence if, by abduction, duress or any fraudulent device or contravance, he impedes or prevents the free exercise of the franchise of an elector or proxy for an elector, or thereby compels, induces or prevails upon an elector or proxy for an elector either to vote or to refrain from voting.

. Under s. 91 ( 1 ) of the Representation of the People Act, 1949:

"Any person who, or any director of any body or association corporate which, before or during an elec-tion, shall, for the purpose of affecting the return of any candidate at the election, make or publish any false statement of fact in relation to the personal character or conduct of the candidate shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true:" ll-L308Sup.Cif71

~52 SUPREME COURT REPORTS

It will thus be noticed that in England the law of undue 'influence as regards elections is somewhat akin to that branch of 1he law as expounded by the courts of equity and both have ·common facet, namely, the inducemdent of person to act other-wise than under his free will by resort to any fraudulent device or contrivance.

Coming now to our Indian law, s. 16 of the Contract Act which came on the statute book in 1872 laid down by sub-s. ( 1) ·.that

"A contract is. said to be induced by "undue influence" where the relations subsis.ting between the parties are such that one of the parties is in position to dominate the will of the other and uses that position to obtain an unfair advantage over the other."

In substance our law of contract with regard to undue influence stresses upon the domination of the will by another to obtain an unfair advantage by the exercise thereof. So far as our election law is concerned the earliest attempt seems to have been the codi-fiation in_1919.under Chapter IX-A of the Indian Panel Code. This was followed by ihe Government of India (Provincial Elec-tions) Corrupt Practices and Election Petitions Order 1936 which will be shortly described as the Corrupt Practices Order. This law was passed after the Government of India Act of 1935. Corrupt. practice in relation to an election by the members of Provincial Legislature to fill seats in Provincial Legislative Coun-cil, meant one of the practices· specified in Parts I and II of the First Schedule to the Order, and in relation to any other election, meant one of the practices specified in Parts I, II and III of that Schedule. Part I of the First Schedule defined undue influence in clause 2 in the following terms :-"Undue influence, that is to say, any ~irect or indirect inter-ference or attempt to interfere on the part of candidate or his agent, or of any other person with the connivance of the candidate or his agent, with the free exercise of any electoral right :

Provided that-

( a) without prejudice to the generality of the provtsions of this paragraph, any such person as is referred to therein who--

( i) threatens any candidate or elector, or a1-1y person in whom candidate or elector is interested, with any ·i~jury of any kind; m .

. ( ii) induces or attempts to ·induce candidate or an elector to beheve that he, or any person in whom he is interested. will

become or will be rendered an object of divine displeasure · or spiritual ~nsure, shall be deemed to interfere with .the free exer· cise of the electoral right of that candidate or elector within the meaning of this paragraph :

(b) declaration of public policy, or promise of public action, or the mere exercise of legal right without intent to inter-fere with an electoral right, shall not be deemed to be interference within the meaning of this paragraph."

It will be noticed that .there is good deal of similarity between · this provision and that in s. 171-C of the Indian Penal Code. There is greater similarity between undue influence as defined in s. 171-C and the definition of that expression in s. 123 of the Representation of the People Act, 1951-another Parliamentary-Act. Under the Act of 1951 undue inftuence is defined as follows ins. 123(2) :

"Undue influence, that is to say, any direct or indirect inter-ference ot attempt to interferenee on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free· exercise of any elctoral right. :

Provided that-

( a) Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--

( i) threatens any candidate or an elector or any person in whom candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

( ii) induces or attempts to induce candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,

shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause :

(b) declaration of public policy, or promise of public action, or the mere exercise of legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."

This Act contains further provision in cl. ( 4) of s. 123 laying down that "the publication by candidate or his agent or by any

other person with the consent of candidate or his election agent of any stattment of !act which is false and which he either believes to be false or does not belie·~e to be true in relation to ilie perso-nal conduct or character of any candidate i:u r~lation t.o the candi-dature or withdrawal, of any candidate being statt!mc.nt reason-ably calculated. to prejudice the election of that candidate at • .m election" will be deemed to be corrupt practice for the purpose of that Act.

election" will be deemed to be corrupt practice for the purpose of that Act. It will be noted that under sub-s. ( 4) publication of false statement relating to the personal conduct or character of candi-date only becomes corrupt practice wher.. it i& done by rival or his agent or any other person with his ~onsent. However opprobrious such publication may be it is not an electoral offence under the Act of 1951 and would not be ground for setting aside an election although it might become culpable under s. 499 of the Indian Penal Code and as such punishable with simple impri-sonment for term which may extend to two years or with fine or with both. Clearly such publication per se would not amount to any ·direct or indirect interference or attempt to interference with the free exercise of an electoral right so as to attract s. 123 (2) of the Act. Even in England it would be an illegal practi~ within the meaning of s. 91 ( 1) of the Representation of the People Act. By itself it would not make the publisher of the statement guilty of und'ue influence. While enacting the statute of 1952 the legis-lature .had before it the electoral offences codified in Chapter IX·A of the Indian Penal Code. It recognised the necessity of law prescribing for the annulment of an election only if bribery or undue influence was committed thereat. Such offence if com-mitted by candidate or by any person with his colUlivance was enough for declaring tlie election void. But if committed by any person who was not the returned candidate nor one acting with his connivance. it was not to affect the election unless the result of it had been materially affected by such malpractices. So far as this branch of the law is concerned the only difference between the Act of 1951 and the Act of 1952 lies in the fact that under the latter Act corrupt practices of bribery or undue influence by one who was not a· party to the election or his agent are also brought in. But the nature and character of undue mfluence under both the Acts remains the same. 1 see no reason for taking view that what would not be undue influence under the Act of 19 51 can become one under the Act of 1952.

If publication of defamatory matter relating to candidate was to be treated as direct or indirect interference or attempt to interfere with the free exercise of any electoral right under the wide words of s. 171-C(l) there would have been no occasion for the legislature to provide for it separately under s. 123 ( 4) of the

candidate attempt

Act of 1951. In my view the same position would obtain undel' the Act of 1952 and before any publication of defamatory mat· ter relating to candidate can be treated as commission of the offence of undue influence there must be some overt act in addi-tion to the mere publication-some attempt or persuasion of voter to restrain the free choice of candidate before the law of undue influence is excited.

The above proposition may be illustrated as follows : If anonymous posters containing defamatory matter about candi-date's personal conduct or character were to be displayed in pro-minent places in the constituency so as to attract the notice of electors, it would come within the mischief of s. 171-G of the Indian Penal Code but would fall short of exercise of undue influence under s. 171-C. An attempt to denigrate person ·in such way could not be said to be directed to thwarting the free choice of electors inasmuch as the poster by itself would give no indication as to the source of information on which the imputa-D tions were made or of their authenticity. But if an unsigned pamphlet containing matter defamatory of the personal conduct or character of candidate be pressed personally upon an elector by another with an attempt to make the receiver believe that there was some basis for the charges levelled against the candidat~, the person receiving the pamphlet would be likely to give credence to the imputations made therein and would thus be subject to restraint on his franchise. As mere attempt to interfere with the free exercise of an electoral right is sufficient for the purpose of s. 171-C ( 1) of the Indian Penal Code it is not necessary to prove positively· that there was actual domination of or over-bearing of the will of the elector to lead to the inference that undue influence was exercised : it would be sufficient to show that there was an attempt to pervert the unfettered choice of voter by resort to illegitimate persuasion inter alia by pressing upon him document containing such false statement of fact relating to the conduct or character of candidate as would make any right-thinking man shrink from selecting him and shun him in the pro-cess of selection of candidate. In such case it would not be difficult to bold that there was in fact malice behind the publica-tion and the adoption of fraudulent device calculated to defeat or deflect the will of the elector. In this view of the matter the publication of false statement of fact relating to the conduct or character of person coupled with an attempt to persuade elec-tors by such publication would attract the operation of s. 171-H C( 1) of the Indian Penal Code. It would also fall within the definition of undue influence ins. 123(2) of the R.P. Act of 1951 and the definition given in c1. 2 of the Corrupt Practices Order, 1936.

(1971 J 2 S.C.R.

I may no\\- proceed to note :;ome of the reports of Election Commissions under the Corrupt Prac:tices Crder 1936 bcfon! examining mere recent deci~ions. Jn Amritsar City (Mohamma-dan) Constituency-Sh. Mohammad Sadiq ".!. Dr. Saifuddin Kitchlow (1) before tne Second Electbn Petitions Commission Bench the scope of undue influence uudet· the first Schedule to the Corrupt Practices Order, 1936 came to be considered. It was the cas~ of the petitio11er that one Farezc-u-Din Ahmed by admi-nistering oaths to his audiMce which i!'lcluded numerous voters. restricted their choice to the returned candidate Dr. Kitchlcw, under pain of spiritual penalties and thereby interfered with the free eYercise of their right to vote. Counsel for the respondent argued that the element o( compulsion was an essential ingredient of the corrupt ·practice of undue influence and contended that it was not even alleg~d that Feroze-ud-Din Ahmed had compelled hi.> audience to take the alleged oaths. The Commissioners found th<H''such oaths were taken and that Feroze-ud-Din Ahmad also reminded h:s audiences of the penalties pro-vided for brcacb of such oaths by thei_r religion. J t is evident that the element of con1pulsion was present in the minds of those voters whu had taken oaths to vote for Dr. Kitcldew at the time when they macked their ballot-papers; they haJ gi vcn an undertaking. supported by the sanction of h:c; of faith. which inevitably leads to divine displeasure and spiritual censure, that they would vote for Dr. Kitchlcw and for no other person."

The Commissioners however could not find in the definition of '•Jndue infl.ut:nce' any basis for the proposition that unless Feroze-ud-Din Ahmad had compi!lled voters to take these oaths, the offence of undue influence was not co!llplete observing :

"That definition, ac; is obvious, gives very wide scope of the meaning of "undue influence" ....... . Evidently the offence includes such interference or attempt to interfere by any method, and one possible method is the method of inducement,· which is proved to have been practised in this case. In fact the word 'induces' occurs in the second proviso to the definition of "undue influence" reproduced above. Further, we have seen that the inducement was of ver1' powerful type. supported as it was. by refe1ences to the· demolition of the Shahidganj Mosque. and the deaths of Muslim-; which resulted from the tiring during the ensuing dis-turbances in regard to which the feeling among the rank and file of the Muslim community is undoubtedly very deep." ·

(I) Doabia's Election Cases, Vol. II. pa&c 117.

In Amritsar City (Mohammadan) Constituency Case No. 2(1) the meaning of undue influence under the Corrupt Practices Order, Order, 1936 again fell to be considered. There question arose as to whether certain news items and oosters in which the unsuccessful person was wrongly and falsely described as standing as candidate on Muslim League ticket would fall within the mischief of the Order. In their report tbe Commissioners stated (at p. 157) :

"There is no proper evidence of actuajt interference before us, and as regards the attempt, we have to see if there was the deliberate.. intent to mislead voters and thus make them exercise their electoral right under the wrong impression that the respondent had been set up as candidate by the Muslim League."

The case for the petitioner there was that one Maulana Zaffar Ali Khan by making an appeal to the voters restricted their choice to Mohammad Sadiq under pain of spiritual penalties and even other-wise and thereb) exercised undue influence in the free exercise of their right to vote. In the opinion of the Commissioners an inducement could not amount to undue influence unless it v:as of such powerful type as would leave no free will to the voter in the exercise of his choice. In Lyl/apur and Jhang Generql Cons-E tituency Case No. 2(2) one of t~e questions canvassed was whether fraud was corr~t practice within the meaning of Government of India (Provincial Legislative Assemblies) Order 1936, paragraph 4-B. According to the Commissioners fral!d may in some cases come within the ambit of the corrupt practice of undue influence. Referring to the definition of undue influence in the said order the Commissioners observed:

"Il is obvious that the definition of undue influence is very widely worded and covers all kinds of fraudulent acts or omissions which, in any way directly or indirect-ly interfere with the exercise of any electoral right. The definition in the English Act specifically makes frJudulant device or contrivance type of undue in· fluence. As devices based on fraud which . interfere with the exercise· of electoral right, are not mentioned by name in the definition given in Schedule I, it has been intentionally framed in 'very general terms so as to cover all kinds of such devices."

(1) The Indian Election Cases by Doabia, Vol. 2 page 1 SO dated 28th September, 1938.

(2) Doabia's Election Cases, Vol. II p. 243 at 25§.

-- ··-----------

Jujhar Singh v. Bhairon Lall & others( [1 ]) was case in which there were two candidates, one jagirdar and the other Congress-man. The Cong~ess conunittee published poster containin~ the picture of tenant tied up to tree and well dressed jagtrdar asking another who had waving whip in his hand, to flog tht:: tenant and the tenant's wife was shown lying prostrate on the ground. It was held that the publication of the poster amount-ed to the exercise of undue influence on the voters who were mostly illiterate villagers and the case fell under s. 123(2) of the Representation of the People Act.

In R. K. Shukla v. T. C. Maheshware) one of the questions before the Elecnon Tribunal was whether the shouting of slogan in various villages and bazars that people who vote in particular way would be given shoe-beating amounted to exercise of undue influence. Relying on the observations of Norfolk (Northern case ( 1 O'M & H. 236 at 242) that before threat can be considered to amount to undue influence, question must be put, 'was it serious and deliberate threat uttered with the intention of carrying it into effect ?' Applying .that test, the Election Commissioners held that they had no difficulty in coming to the conclusion that the shouting of the slogan could not amount to undue influence inas-much as it was shouted for several months before the election was held and not single instance was brought on record in which the threat contained in the slogan was carried out. On the facts of the case, it was held that none of the parties could be said to have uttered slogans for the purpose of directly or indirectly interfering with any person's free exercise of his electoral right. Reference was also made to the fact that there was no evidence that any complaint even had been made about the shouting of the slogans to the agents of the petitioners.

In Amir Chand v. Sucheta Kripalani([3 ]) one of the questions which engaged the attention of the Election Tribunal was whether false statement in daily newspaper to the effect that the respon-dent Smt. Sucheta Kripalani was going to be taken as Rehabilita-tion Minister in the forthcoming Union Cabinet after the election thereby giving currency to the ~mour amounted to undue influence as contemplated under s. 123(2) of the Representation of the People 1Act. The view taken by the Tribunal was that (p. 252):

''The so-called device namely, that some one from Lucknow sent the news as rumour or opinion of the member of the Congress High Command, does not fall within the ambitf of the. definition'',

(I) 7 E.L.R. 457. (2) 12 E.LR. 378 at 415.

• (3) 18 E.LR. 209.

ins. 123(2). It was said that though the definition was no doubt in general terms it had an element of compulsion and it was an abuse of influence that would constitute undue influence.

In Kataria Takandas Hemraj v. Pinto Frederick Michael( [1 ]) an appeal was mad¢ to Maharashtrians not to vote for the Congress Government had resorted to firing and killing Maharashtrian leaders for demanding separate Maharashtra State and photo-graphs of martyrs who had been killed were attached to the appeal and it was even stated that the ballot box ot the Congress Party was filled with the blood of Maharashtrian martyrs. Negativing the plea of undue influence sought to be raised in the above appeal, the Tribunal stated that although the expression 'undue influence' was wide enough to cover any interference with the exercise pf the electoral right, there is in it an element of compulsion so as to give way to free thinking in the exercise of the electoral right of the voters.In Radhakrishna Misra v. Nityananda Mahapatrae) case of undue influence was sought to be made out inter alia by the publi-cation of 'booklet which had in its cover page photograph of one S. who had been killed during the police firing with the caption ''Do not vote ~or the Congress who had killed S." In the judgment in appeal from the Election Tribunal, Barman, J. remarked (at p. 217) : ''A voter must be

''A voter must be able to ·freely exercise his electoral right. He must be free agent. All influences are not nec\!ssarily undue or unlawful. Legitimate exercise of influence by political party or association or even an individual should not be confused with undue influence. Persuasion may be quite legitimate' and may be f~rly pressed on the voters. On the other hand, pressure of whatever character, whether acting on the fears, threat, etc. if so exercised as to overpower the volition without convincing the judgment is species of restraint which i~terferes with the free exercise of electoral right. In such an atmosphere, the free play of the elector's judg-G ment, discretion or wishes is overborne and this will constitute undue influence though no force is either used or threatened. It is not necessary ta establish that actual violence had been used or even threatened. Methods of inducem~t which are so powerful as to leave no free will to the voter in the exercise of his choice mav amount to undue influence. Imaginery terror may have been created sufficient to deprive him of free agency."

(I) 18 E.L.R. 403.

(2) 19 E.L.R. 203.

[1971] 2 S.C.R.

With regard to the poster with the picture, the learned Judge said (at p. 219) :

"It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in their mind feel~ng of terror; fear, hatred or strong prejudice against the Congress ...... It at le~st did create or was likely to create or had the tendency to create terror and an unknown fear in the mind of the voters. The picture of the dead boy with the caption frightened the voters or was likely to frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the voters."

The learned Judge was in favour of allowing the appeal but his colleague, Rao, J. expressed different view. According to him (p .. 234):

According to him

"The picture simply represents Su_nil De after being shot at by the police firing with the caplion underneath 'Do not vote for the Congress who killed Sahid Sunil.' It does not say that if the voters give their votes tfor the Congress all the voters or some of them would be shot as Sunil De."

The matter was referred to Das, J. by the Chief Justice in view of the difference of opinion between Barman and Rav, JJ. Accord-ing to this Judge no undue influence was exercised because nothing had been stated in the photo Ex. 3 relating to the picture and there was no statement that if the voters gave their votes to the Congress, they would be shot at as Sunil and accordingly "respon-dent No. 1 could not have intended to cause any fear in the minds of the voters by the above publication to constitute interference with the free exercise of the electoral right of the voters."

In Abdul Rahim v. Rad~ Krishna(!) an unsuccessful candi-date charged the retumed candidate along with other persons with having committed undue influence by publication cf pamphlet in which it was alleged that deliberate false statements of fact in relation to his personal conduct and character had been made. In hearing the appeal Das, J. who delivered the judgment of the Court referred to the definition in s. 123 (2) of the Representation of the People Act and said :

"There is nothing in the definition that such inter~ ference or attempt at interference should be by any method of compulsion. Evidently, the offence includes (1) A.I.R. 1959 Orissa p. 188.

such ilnterference or attempt to interfere by any method, and it definitely includes the method of inducement wherein there may not be any compulsion at all. The inducement again must be of such powerful type as would leave no free will to the voter in the exercise Otf his electoral right."

On the evide!lce the learned Judge held (at p. 193) that there was admission by the respondent h:.ntse.lf and it was abundantly clear that the retur:nect candidate had acted conjointly with his agent in publishing and c1rcularing Ex. 5 as result of which the election of the petitioner was· materially affected. In Ram Dial v. Sant Lal and others (I) question arose as to whether com· mand from Sri Sat Guru Sacha Padshah to the Namdharies Halqa-Sirsa that every Namdhari should vote for the success of I<.am Dayal Vaid, it being primary duty to make him successful in the election amounted to the exercise of undue influence. No doubt the command was from person who was religious leader and as such had great influence on the Namdharies. The Court ex-D pre~sed the view that the religious leader has .a right to exercise his influence in favour o,f any particular candidate by voting for him and by canvass~ng votes of others for him, and has the right freely to express his opinion on the comparative merits of the contesting candidate and to canvass for such of them as he consi· ders worthy of confidence of the electors. Such course of con-E duct on his part, would amount to an abuse c.f his great influen<..c if the words used in document, or utterances in his speeches leave no choice to the person addressed by him in the exercise of his electoral right. Incidentally it may b~ noted that the learned Judges stressed what was material under the Indian law was not · the actual effect produced but the doing of such acts as were cal· culated to interfere with the free exercise of an electoral right. In lnder La! v. La! Singh (2) the charge against the returned candidate was that he had been guilty of the exercise of undue influence inasmuch as pamphlet containing false statement that the respondent No. 2 was "purchaser of the opponents of the Congress by means of money" was issued by the agent of the res-G pondent with his consent. Respondent No. 1 contended that the statement related to the public or political character of respondent No. 2 and not to his private character. In his iudgment, Ga_ien-dragadkar, J. said (p. 122) :

"Circulation of false statements about the private or personal character of the candidate during the period proceeding elections is likeiy to work against the freedom of election itself inasm.uch as the effect created by false (l) [1959] Suppl. 2 S.C.R. 748. (2) [19621 Supj)]. 3 S.C.R. 114.

[1971] 2 S.C.R

statem~nts cannot be met by denials in proper time and so the constituency has to be protected against the circulation of such false statements which are likely to affect the voting of the electors.''

With regard to the allegation in the pamphlet already mentioned the Court took the view that :

the Court took the view that : "In plain terms, the statement amounts to an allega· tion that respondent No. 2 buys by offering bribes the votes of the opponents of the Congress ...... Offering bribe in an election introduces an element of moral turpitude and it cannot be denied t~at person who offers bribe loses reputation as im individual in the eyes of the public."

The scope of s. 171-C I.P.C. was considered in the recent decision ()f B'aburao v. Zakir Husain (1). This case is not an authority directly in poi~t but some observations made by Wanchoo, C.J. may not be out of place. Delivering the judgment of the Court his Lordship remarked (p. 145) that:

" ...... the gist of undue influence at an election consists in voluntary interference or attempt at inter-ference with the free exercise of any electoral right. · A:ny voluntary action which interferes with or attemp&S to inte:fere 'with such tree exercise of electoral right would amount to-undue influence. But even though the definition in subcs. (1) of s. 171-C is wide in terms it cannot take in mere canvassing in favour of candidate at an electi~. If that were so, it would be impossible to run democratic elections. Further sub-s. (2) of s. 171-C shows what the nature of undue influen~e is though of course it does not cut down the generality of the provisions contahied in sub-section ( 1 ) . Where any threat is held out to any candidate or voter or a,ny person in :whom candidate or voter is interested and the threat is of injury o,f any kind, that would amount to voluntary interference or attempt at interference with the free exerCise of electoral right and would be undue influence ............ What is contained in sub-s. (2) of s. 171-C is. merely illustrative. It is difficult to lay down in general terms where mere canvassing ends and . interference or attempt at interference with the free exercise of. any electoral right begins. This is matter to be determined in each case :"

The question which primarily engaged th~ attention oi this C~urt in the above case was, whether letter addressed by the Prtme Minister to all the electors in which she commended Dr. Zakir Husain and requested the electors to vote for him amounted to the exercise of undue i1rlluence and on the facts of the case the answer was in the negative.

The above citation of the cases is in our view sufficient to reject the contention of Mr. Daphtary that in order to establish undue iniiuence it must be shown that there was some threat to voter or at least an element of compulsion. in the appeal to him. The cases also show that it would be futile to attempt to lay down simple test applicable to all sets of facts and circumstances where undue influence is alleged to have been exercised. It can however be said that an attempt on the part of anybody to deflect voter's will away from particular candidate by creating prejudice against or hatred for him, as for instance by casting false aspersio.ns on his personal character and conduct whether by spoken words or in writing may be sufficient for the purpose of establishing the commission of undue influence. Much would however depend on the nature of.the attempt, the position of the person making it and the manner in which it is made. The mere publication by postal despatch of an anonymous but scurrilous pamphlet regarding the personal character of candidate to voters all and sundry might attract the operation of s. 1 71-G of the Indian Penal Code but would faH short of S. 171-C. But if such pamphlet is pressed upon voters and methods of inducement applied to them, specially by others who are equally interested in the election different considerations may well arise. In such case court of law may legitimately hold that the disseminators of the _pamphlet were attempting to canalise or force the will of others away from the person whose character was assailed. Few would take any serious notice of an anonymous pamphlet however scurrilous it may be, if it were pasted on the walls of houses within the constituency where the election is to be held. Similar would be the fate of such pamphlet disseminated by post. Persons who receive such pam-phlet would either tvrow it away or express surprise that such aspersions were being made against person like Sri Sanjeeva Reddy who has held high offices. I do not think that such dis-semi:nation, although mean and ignoble, would have any effect on the minds ·of persons who belong to the electoral college for the election of person to the office o.f the President of India. But if the disseminators of such pamphlets were persons holding respon-sible offices or persons who belonged to the same category as the recipients and tried to induce the latter to take particular line of action in forthcoming election on personal appeal based on such pamphlets, it would not be difficult to hold that their influence was being exercised unduly and corruptly and an offence commit- led within the meaning of ~ .. 17 J -C. M~~re dissemination uf such pamphlets even by hand of. well-pL.:~c.j persons would not be enough for such purpose. The pamphlet in l.his case plumbs depths of filth <Jn·:i mtJl1ness ~elllu1;1 reachrd. It was not mere attempt to duh ~iri Sanjeeva Reddy a~ man generally devoid o.f good principle~. it accused him pf conduct wholly unbctitting gentleman not to spr-:<tk of '' person who aspired for election to the high office ot the President of India and charged him with acts of misdemeanour towards members of the other sex giving instances and in most cases mentio.1ing the occasions at which he is said to have committed ~he ind(;cent acts imputed to him. It was calculat-ed to engende1 strong prejudice in the minds of electors against Sri Sll.ujeeva Reddy both in his per:>onal capacity and as being the nominee of ·group of persons described as usurpers a.f power in the Congress Party. It is difficult to find suitable words to con-demn the making and publicatio:Q of such vile pamphlet in an ·election to the highest office in the land and it is: certainly great pity that the authors thereof have not been tracked or suitably dealt with.

Having concluded that the use of scurrilous pamphlet of the type disclosed in this may be step in the commission of undue influence within the meaning of s. 171-C of the Penal Code, I have to consider the evidence adduced to find out the extent of its publication and the manner in which it was published and used before it can be held that undue influence was in fact brought to bear upori the minds of certain electors. One has next to ascer-tain whether the offence of undue influence was committed by the respond,ent or by any of his workers with his connivance. It neither of these be proved, we have to shift th(~ evidence to see whether the offence was committed by others to an extent which materiaHy affected the result of the election.

Counsel for the parties argued at some length on the question as to the standard of proof reqqired to establish the commission of the offence of undue influence. As the malpractice is an offence under the Indian Penal Code and attracts punishment by way of imprisonment, Mr. Daphtary argued that the standard of proof required is much higher one than in ordinary civil cases. Ac-ccrding to him the charge must be well and truly laid in the peti-tion and its particulars a11d evidence adduced in proof thereof as would leave no scope for any reasonable doubt that the offence has been committed by the persons charged therewith. Mr. Daph-tary laid great stress on the production of evidenee strictly follow-ing t~e pleadin~s and contended that no deviation therefrom was permissible. The petitioners accor:ding to him could not be a1lowed to abandon or jettison the case raised in the pleadings and :ask the court to hold on the evidence adduced that the offence of

undue influence has been committed by some perf>Ot<s although the manner of commission as laid down in the pleadings ".'as not borne out by the evidence. He also argued that as these persons were not parties to the proceedings they were under no compulsion to come and give evidence in court and the respondent owed .no duty to call all or any of them to disprove the charges levelled against them. Mr. Daphtary'~ argument seemed to suggest that the petition and the particulars thereof supplied later were to be considered in the same light as the first information report in cri~ninal case and the court should weigh the evidtmce given at the hearing in the same way as in. criminal trial and if there was significant departure in the evidence from the charges levelled in the petition, hold that the commission of the offence pleaded was not established.Counsel for the petitioners argued that the paramou:nt duty of the court in such cases was to uphold the validity of an election only i& it was pure and although the court should be slow in up-D setting the result of an election on mere trivilities or irregularitieS' it should not hesitate to do so when the evidence disclosed com-mission of corrupt practice on large scale merely because of the devlation o.f the evidence f'rom the pleading. It was further sug-gested that although the charges savoured of criminality they were not investigated as in criminal case but the hearing of the election petition was more akin to that in .a civil proceeding and the court should come to its conclusion on the issues framed and the evidence adduced not on the balance of probabilities but on the strength of the direct evidence adduced.

This question has engaged the attention of this Court on prior occasions and reference may be made to some of them to see the views expressed therein. In Mohan Singh and others v. Bhanwarl-lal & others( [1 ]) where charges of corrupt practic~ had been level-led it was said :

"The onus of establishing corrupt practice is un-G doubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of pro-bability, as in the trial of civil suit; the corrupt prac-tice must be established beyond reasoJJ.able doubt by evidence which is clear nad·unambiguous:''

Much to the same effect was the decision ol this Court in Jagdev Singh v. Pratap Singh(2).

(I) [1964] 5 S.C.R. 12.

(2) A.I.R. 1965 S.C. 183.

[1971] 2 S.C.R

In Samant N. Balakrishoo etc, v. George Fernandez and others etc.(!) it was said (see at p. 637) : "Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that corrupt practice must be proved in the same way as criminal charge is proved. In other words, the election petitiQner must exc1ude every hypothesis except that of guilt on the part of the\ returned candidate or his· election agent/• · All the· .three cases mentioned above were tried under the Repre-sentation of the People Act. 19 51 the relevant provisions of which are somewhat different from those in the Act of 1952. Under the 1951 Act ali electio:n can be declared to be void if, inter alia the High Court is of opinion that any corrupt practice has been com-mitted by returned candidate or his election agent or by any other person with the consent of the returned candidate or his · election agent. S. 123 of the Act of 1951 specifies what are the -corrupt practices for the purposes of the Act. Section 99 of the Act of 1951 makes it ~ncumbent upon t~e High Court when it declares the election of returned candidate to be void on the basis of charge made in the petition of any corrupt practice having been committed at the electiQn, to record finding whether any corrupt practice has or has not beem: proved to have been com· mitted; but person who is not party to the petition is not to be named by the High Court under this section unless he has been given notice to appear before the High Court and to show cause why be should not be so named. Liberty is also given to him in case he appears i~ pursuance of the notice to cross-examine any witness who has already been examined by the High Court and calling evidence in his · defenee and of being heard. The Act of 1952 does not contain any similar provision. There can be no doubt that charge of undue ~nfl.uence is in the nature of criminal char.ge and must be proved by cogent and reliable evidence not on the mere ground of balance of probability but on reasonable certainty that . the persons charged therewith have committed the offence ~ the strength of evidence which · · leaves no scope for doubt as to whether they had or had not done so. It must also be r~membered that even if there be no provision in the Act ot 1952 of giving notice to the persons who are charged with having committed undue influence or of impleading them as parties, it is the duty of the election petitioners to lead direct evid-ence on the point an,d the respondent ~annot take shelter behind the plea that he owes no duty to call them or to disprove the aile-gations made against them if he is to have his election maintained

(I) [l969J 3 s.c.a. 603.

~y .the Court. There is special provi,ton in the Act of 1952 which is absent from the Act of 1951 ill that an olection mA'/ bo set aside on the ground of the commiss1on of unduo in1luen~ by persons who are not agents of the retumed candidate and whose action.has. not been connived at by hun if the court finds that the result ot the election has been materially affected by the commiSSiOn of undue influence by outsiders and complete strangers to the election. The anatogy of the trial of an election petition with that of. criminal charge cannot be pushed too far. There are inherent difierences between the two in the matter of investigation. The vital point of identity in the two trials is that the court. must be able to come to a. conclusion beyond any reasonable doubt as to the commission of corrupt practice. The court looks for reliable independent evidence to establish charges of crimin?l nature but unfortunately such evidence is found to be lacking in great many cases. It is well-known that even in cases where persons are charged with murder, independent witnesses fight shy of the witness box and are not called to support the prosecution case; the Judge bearing such case has to make up his mind on the evidence of witnesses who are partisan in the sense that they are related to the victim and shift the same carefully to make up his mind whether the charge is established. The same is the case in the trial of most of the election petitions. Election petitioners nearly always examine persons who are their supporters, while the returned candidate follows the same course. This takes place in particular where charges of undue. influence and bribery are level-led. However onerous the task of the court may be because of the partisan nature oi the witnesses, it cannot reject the oral evid-ence adduced merely on that ground, but it has to exam#le the satne carefully and come to conclusion whether .the evidence establishes the corrupt practice beyond reasonable doubt. Even in criminal trial the court can hold person guilty of crime on the strength of evidence of partisan witnesses if they are found to be reliable although there may be no independent corroboration thereof and I see no reason to depart from that principle in the trial of an election petition where charges of offences culpable under the Indian Penal Code are levelled.

In this case no less than 116 witnesses were examined, 55 on the side of the petitioners and 61 on the side of the respondent. good many of the witnesses are persons who have held or still hold high offices. Excludin~ few nearly all of them are elected r~presentatives of the people either to the Houses of Parliament ot to the Legislative Assemblies of the States. They are llleD whose ~vidence in the ordinary course of things should carry great weight but unfortunately good many of them are members of two hostile camps who came to court resolved to do their best for orie side or the other. It is well-known that the old Congress. 12-L308 Sup. CI/71

Party is no longer united and that there has been sharp clevage among its members and before the hearing of the ~Iection petitions one group came to be known as Congress ( 0) and the other Congr~.s (R). The clevage is referred to in the petition itself. Persons who have figured as witnesses but do not belong to either of these parties generally but not universally have their affinity for one side or the other.. It has also come out in evidence that the split in the Congress Party originated back in April 1969 when there was meeting of the A.I.C.C. at Faridabad. The di1Jerence of opinion seemed to stem from opposite views held by some lead-ing members about the steps to be taken for the economic progress of the country. It came out clearly in the evidence of Sri Shankar Dayal Shanna (a witness for the respondent) and member of Mauhya Pradesh Legislative Assembly who had been in public life for about 32. years. He became member of the All Ind1a Con-gress Working Committee in January 1968 and was appointed General Secretary of the Indian National Congress in April 1968. He continued in that post till the 1st November 1969 when he submitted his resignation at the request of the then Congress Preside11t, Sri -Nijalingappa. His evidence whidh was not chal-. Ienged in cross-examination shows that at Faridabad session new procedure was adopted for splitting the A.I.C.C. in~o three panels. In the economic panel serious differences -arose between the mem-bers specially between the Chairman, Sri Morarji Desai and some of its members and no ref>Ort could be finalised. According to the witness there was demand for nationalisation of hanks by some members which was resisted by the Chainnan and some others. It is not 111.ecessary to mention the various points of difference between the members of the panel but according to this, witness the Prime Minister and Sri Morarji Desai held <:o~trary _views on this point.

According to Sri Nijalingappa who figured as witness for tJ:te petitioners the question of selecting p~rson fit for th~ office ?f the President arose very soon after the demtse of Dr. Zakrr Husam early in May 1969. He claimed to have ~ound~ tie Prime Minister on more than one occasion in the months of May and June to fix uoon oro~ person .for the .office but n~thing ~suited. When they met -at Ban~ai'ore in July 1969 the questfun cropPed up again. · The Prime .Minister told him at the meeting 'J! the 12th July that she had the respondent in her mind but she ft'und no encouraging response to her propos~I.. · Sri Nijalingappa then said that members might suggtst othe~names whereupon the Prime Minister proposed the name of S · Jagjivan Ram and Sri S. K. Patil suggested the name of Sri San'iva Reddy. As no agreement could·be arrived at, the matter was put to vote and Sri S. K. Patil, Sri Morarji Desai, Sti Chavan and Sri Kamaraj Nadar were ~n fuvo,ur of Sri Sanjeeva Reddy w~ile the Prime Minister and Sri

.Fakhruddin Ali Ahmed supported Sri J agjiwar Ram. Neither Sri J agjiwan Ram nor Sri Nijalingappa expressed any opinion. Accordmg to Sri Nijalingappa, the Prime Minister expressed un-happiness over it and said that serious consequences may follow.

Neither

It is the case of the petitioners as brought out in the evidence 8 that although the Prime Minister signed the nomination paper of Sri Sanjeeva Reddy within few days thereafter she did not take any other step to ensure his success at the election. It also in evidence-and is matter of common knowledge-that imme-diately after the conclusion of the Bangalore Session the portfolio of Finance was withdrawn from Sri Morarji Desai and the Bank Nationalisation Qrdinance was promulgated just before the meet-ing of Parliament in July 1969. The split in the party which had been dormant before came to limelight soon afterwards. Although the two conflicting groups came to be known as Congress ( 0) aud Congress (R) some time thereafter there can be little doubt that the seed of dissemination was bearing fruit and mutual suspici<ii1 between the members of the two groups came to the surface. The Presidential election which was held on 16th August 1969 was in the. offing but it seemed to have been made the venue for clash of ideologies and test of strength. According to Sri I. K. Gujral witness for the respondent, the under current of difference between the parties since the Bangalore Session of the Congress came to the surface early in August 1969, the decisive factor being Smt. Tarkeshwari Sinha's article in the Search Light suggesting move to throw out the Prime Minister. According to Sri Gujral many people were of the view that the Congress President Sri Nijalingappa had tried to make deal with Sri Ranga of the Swatantra Party and Jan Sangh for coalition Government and the eJection .of Sri Sanjeeva Reddy as President was considered to be step in that direction.

That there was sharp difference of opinion and the arraying of members into two warring camps at or about that time admib! of no doubt or dispute. Whoever be the authors or the· printers of it, the distribution of the pamphlet started round about 9th or lOth August. From the 11th August cm:respondence 'started between Sri J agjiwan Ram and Sri Fakhruddin Ali Ahmed on the one side and Sri Nijalingappa on the other, as well as between the Prime Minister and Sri Nijjl}ingappa. As matter of fact the correspondence between the Prime Minister and Sri Nijalingappa hat! started as early as 16th July. In the letter of that date {Ex. P -41 ) the Prime Minister complained that she was deeply distress-H ed by the stories in the Press attributing all kinds of motives to her and said that newspaper speculation about her alleged reaction to the decision of the P.arliamentary Board were wholly misconceived and inspired by interested elements. On Au!!U~t 11, 1969 Sri

':J·a$Jiw~n Ram and Sri Fakhruddin Ali Ahmed wrote to Sri NiJtdittg~ppa :

"Cons.iderable confusion exists in the minds of nume-rous members of our Parliamentary Board regarding the ta1ks made on your own initiative with some of the leaders of the Jan Sangh and Swatantra Party and that it was claimed that as direct result of your talks the Jan Sangh Executive has decided to support Sanjeeva Reddy." .

!he w~te~s compl~ed that the ~embers of the Congress Party were consrderably agttated over this and ugly rumours were afl.oat ~ the situation had worsened because those whom Sri Nijalin-gappa had . approached and their representatives had openly demanded the removal of the Prime Minister. They ended the letter by saying :

"Unless the whole position- was fully clarified and the basis of Sri Nijalingappa's talks and the readiness of the other parties to support Sri Sanjeeva Reddy were satisfactorily disclosed it might have great repercussions on the Presidential election."

To ~is Sri Nijalingappa replied on August 13th saying that ·although he had met the writers the day before the poi"nts raised in the lC?tter had never been canvassed. Sri Nijali:ngappa further stated that he had been approaching every party for its support and requesting every voter {or his vote in favour of Sri Sanjeeva Reddy in accordance with past traditions. Correspondence went on in the same vein up to the 18th August even after the taking of the poll. According to Sri Nijalingappa's letter to the Prime Minister dated the 15th August the members of the Parliamentary Board , hlid ~greed on the lst August that he might contact all parties and v.'Qters ·to seek for their support and he had reported to the Congress Parliamentary Board meeting held on the 5th about his talks with the oppo$ition parties. Further there never was any understanding with Jan Sangh or the Swatantra Party beyond seeking their sup-port at the Presidential election and the demand for free vote which.had already been raised was in fact claim of right to vote · for the respondent, candidate nominated by the Communists and C01ti11iunalists.

No .useful purpose will be served by referring to the said correspondence in detail and mention has been briefly made of the same oi:t1y to bring out in sharp focus the difference between the two groups. Members of the two groups who have apneared as witn~ in this case had defi.nitelv taken sides some dav~ before the date ·of the poll. According to some witnesses examined on

behalf of the respondent, the manner of selection of Sri Sanjeeva Reddy was against all past traditions of the Congress as no attempt at consensus was made before the matter was put to vote. Some eve~ felt that the Prime Minister should not have been over-borne in the way she was done on the 12th July. ~atever might be the individual 1 eactions of the members of the two groups, there is no gainsaying that there. was strong current of opposition to the election of Sri Sanjeeva Reddy as President of India and more than one wit:ness for the 1espondent includiilg Sri Yunus Saleem admitted that there was campaign for getting signatures of members of Parliament on document demanding the right to vote ' freely in the election. This in effect meant the right to vote · against the party affiliation although it was termed right to vote according to conscie,nce.

I now proceed to consider the contents of the pamphlet in detail and then examine the evidence adduced to find out whether any and if so, what use was made of it by any one in manner which could be said to amount to an attempt to interfere with t11e free exercise of any person's electoral right within the meaning of s. 171-C of the Indian Penal Code. It is also necessary to scruti- · nise the evidence to see whether the charge levelled by the peti- • tioners that the pamphlet was the work of group of people supporting the Prime Minister and secretly working for the success of the respondent is borne out.

Although the pamphlet on the face of it was anon~~ous, there are certain indications in it to show its probable ongm. The document purports to be addressed to "fellow Congress Members of Parliament and the Vidhan Sabhas" by "Congress Workers Committee to combat the Syndicate" and bears the date 9th An \'.Ust. It starts off thus :

"Our great Party (obviously referring to the Congress Party) which led the entire nation in the struggle agrunst British rule and had the glory of bringing independence to .... ota:- motherland, has today fallen into slur of des-po·ndence and demoralisation. Into its leadership have crept in men whose record shows that they have sold their conscience to the rich and the corrupt, who are seeking to destroy all attempts of harnessing the Con-gress once again the service of the common people."

It then goes on to charge that:

"Self-seekers infiltrated into this great organisation ........ After Panditji's death it is small click of un-scrupulous persons who landed themselves into what is

SUPllE¥B COURT REPORTS

called the syndicate and have tried to become virtual dictators."

'It ascribes the heavy defeat suffered by the Congress Party in the ge1;1eral election of 11!)67 to the management of its affairs by evil men. The reference seems to be to Sri S. K. Patil, Sri Atulya Ghosh and Sri Kamaraj. It then prpceeds to state (a) that at the then recent. Ban galore session of All India Congress Committee the. Prime Minister set out programme for immediate reforms in the. P.C<>nomy of the country, (b) this not being to the liking of smal 1. coterie described as ganster politicians they "decided· to set up one of their men, corrupt and immoral person, Sanjeeva Reddy as the Congress candidate for the august post of President of India" and (c) this selection was made not only against the wishes of the Prime Minister of India but also without caring to consult the Congress Working Committee, Pradesh Congress leaders and the addressees. The pamphlet then seeks to analyse the reason behind this choice. To quote the words of the pamphlet itself :

"That is because Sanjeeva Reddy himself belongs to this gang. Also the syndicate's plan is that if Sanjeeva Reddy could be made President -of India then it will be easier to block all enlightened measures; as President he will obstruct the present Government at every step when-ever any action. is taken against corruption or in the interest of the common people. The syndicate's agents in Parliament have been openly saying that if Sanjeeva Reddy becomes the President, they will drive out Smt. Indira Gandhi in few weeks. They are all the more enraged at the nationaUsation of the 14 big banks which were only helping big capitalists to profiteer and amass black money. The syndicate is scared that such mea· sores would make Indira Gandhi more popular with the common man while they themselves have forfeited the confidence of the vast millions of our country. How panicky they are could be seen from the scurrilous writings of one of their li~utenants Tarakeshwari Sinh~ openly threatenine: that the synd1cate will fight and defeat Indira Gandhi. These unscrupulous bosses prefer that the Congress should suffer crushing defeat in the next general elections in 1972 rather than that our Prime Minister becomes stronger. For they look upon Indira Gandhi as thorn in their path; and they think the only way to comer her would be to make Sanjeeva Reddy the President. . . . . . ·

· ti is aS pan of this conspiracy of the syndicate that Niialingappa, another syndicate boss (against whom

there are many grave charges of corruption) has already approached the Swatantra Party and the Jan Sangb, secretly planning with those anti-national parties for coalition government with the syndicate Iea(lers ...

The rest of the pamphlet is aimed at denigrating Sri Sa:njeeva Reddy. It charges him with being corrupt and unscrupulous politician whose misdeeds had been severely condemned by the High Court of Andhra Pradesh in 1964 and whose record ~ Minister for Steel in the Central Cabinet had been so bad that he had to be dropped after the general election of 1967 and was put up as Speaker of Lok Sabha on the pressure of the syndicate. The pamphlet proceeds to give instances of acts of misdemeanour committed by Sri Sanjeeva Reddy towards members of the other sex. It ends up with an exhortation to the addressees that ii they have to carry forward the programme of the Congress in the service of the Indian people and to weed· out corruption, nepotiSm and racketeering, they have to use their powers to defeat the syndicate lnter alia by rejecting Sri Sanjeeva Reddy. The pamphlet winds up with the tUllowing :

"On each and every one of us lies the sacred respon-sibility of seeing to it that this living monum.ent-{)f moral depr~vity does not become the President of India. Remember this when you cast your vote in the ballot box QD. 16th August, 1969.."

Although Mr. Daphtary put up faint argument that this might be the work of any party or group opposing the Congress aad interested in its decline and fall, one can .not unreasonably take the view that in all likelihood group of ·disgruntled Congress members were at the back of it. It. is to be noted that in the whole of the pamphlet which is fairly long one, there is no refer-ence to .my other party. excepting where Sri Nijatingappa is des-cribed as having approached the Swatantra and Jan Sangh for coalition Government. There is no reference to the respondent or anv other candidate at the election and there is no attempt to belittle or ridicule the members of any of the many other political .,arties in the country.

At or about this time there was frequent reference in the daily :newspapers to group in the Congress dubbed as syndicate and another group described as young Tudes who were in open rebel-lion a!!ainst the syndicate. The pamphlet shows that the authors ~ereof were of the view that the Prime Minister was attempting · to eive what according to them was correct lead to the country and that she . was sought to be thwarted by the members Ol the syndicate. So much so that the latter were· said to have· enteredinto conspiracy to oust the Prime Mmister from her position .a,Dd. set up coalition government. This is sought to be supported by writing ascribed to Smt. Tarkeshwari Sinha as openly threaten-ing the defeat of the Prime Minister by the syndicate. There are thus strong indications in the pamphlet to show where it could have come from and who were interested in the defeat of Sri Sanjeeva Reddy and the motive behind this move. It has come out in the evid~e of number of persons examined on behalf ·of the respondent some of whom admitted themselves to have been described in the press as young Turks, that their views about the management of the affairs of the Congress Party by some senior members of it described as syndicate was similar to that expressed in the pamphlet. Sri Krishna Kant (R.W. 32) admitted that he himself, Sri Chandrasekhar (R.W. 5), Sri Mohan Dharia (R.W. 17), Sri Santi Kothari (not exami,ned), Sri Amrit Nebata (R.W. 3), Sri Sa5hi Bhushan (R.W. 38), Sri R. K. Sinha (R.W. 8) and -others were described ·as young Turks and that the syndicate was composed according to the press of members like Sri Nijalingappa, Sri Atulya Ghosh, Sri S. K. Patil and others. Sri Sanjeeva Reddy according to this witness wali also considered to be part of the ·syndicate. Most of these persons when examined openly stated that tliey had decided to go against the selection of Sri Sanjeeva Reddy by the syndicate, that they were supporting the candidature _ ·Of the respondent and that there was signature campaign in favour of freedom of vote. Sri Krishna Kant himself admitted having been responsible for getting such signatures and so did Sri Yunus Saleem (R.W. 51). Sri Krishna Kant frankly admitted that when they could not support Sri Sanjeeva Reddy they could not possibly support Sri Deshmukh, another candidate at the election who was Jan Sangh candidate which left only the respon-dent on the field. Evidence on much the same line was given by other witnesses examined· on behalf of the respondent.

Sri R. K. Sinha (R.W. 8) stated that "the syndicate was taking the Congress to the funeral pyre in West Bengal, Madras and .Kerala". He also said that th~ m'ajority of the group known as youn~ Turks had declared their support for the respondent. He admitted having made public speech about this· time to the effect that the members of the syndicate were opposed to the formation of Congress Socialist Party 'and had "planned to fill the political vacuum after Panr'lit Nehru." When his attention wa& drawn to the pamphlet Sri Shashi Bhushan (R.W. 38) approved of the statements made in the first three paragraphs n'amely that set of . self-seekitng, corrupt ~nd unscrupulous persons had J!rabhed power in the Congress or!!~ni~ation after the death of Pandit Nehru and it was because of thPir misdeeds that the -had suffered party ' reverses in the election of 1967. It should be noted that Mohan

Dharia's attitude in the Presidential election somewhat different from that of the otner young Turks. It would appear that the precliv~ty of this group ~ pe~~ described as. ~oung Turks ~d their support for the Pnme MljD[Ster and oppos1t10n to the ~;eruor members of the Congress fold like Sri S. K. Patil, Sri Kamaraj and others was sought to be utilised in the election petitions by openly averring that the supporters of the Prime Minister were behind the publication and dissemination of the impugned pamph-let. The evidence adduced does not bear this out.

The authorship of the pamphl~t not being traced, we have to sec whether the dissemmation of it in the manner deposed to was sufficient to establish the commission of undue influence. I have no doubt that if the statements contained in the pamphlet were made the subject of verbal appeal by one member of the electoral CQlloge to another and particularly those in the Congress fold, very strong case for the exercise of undue infl.u~e would be made out. There would not in my opinion be rn'lCh difference between such an appeal and an appeal in writing signed by one elector to another. In such case it could be said that the elector m~g the appeal was trying to misuse his position and seeking to influ-ence the other and attempting to interfere with the free exercise of the other's electoral right. But the ~vidence adduced falls far short of the proof of any such case. It is the admitted case of the . parties that tlte pamphlet was very widely disseminated through the post among members of Parliament and members of the Legis-lative Assemblies hailing mostly from U.P. but 111ot being confined to that State alone. The case of the petitioners is that not only was the pamphlet broadcast by post but there was free distribution of it among members of both Houses of Parliament i.e., in the Central HaU of Parliament from the 9th to 15th August. Refep ence was made to the proceedings of the two Houses to show that complaints about the distribution of filthy pamphlets in the Central hall of Parliament bearing on the Presidential election were being made in the Lok Sabha. Although in the pleadings specific case was made that some prominent members of the Congress Party supporting the Prime Minister like Sri Jagjiw~ Ram had gone to the residence of certain members of the electoral college for per-G sonal delivery of the copies of the pamphlet to them, practically :no attempt was made to su~stantiatc such allegatjon by oral evid-ence in court. A& regards distribution of the pamphlet in the Central ball ot Parliament there was evidence given llY the ft~llow­ing witnesses for the petitioners, namely, Sri Kanwarlal Gupta (P.W. 2), Sri K. S. Cbawda (P.W. 3), Sri N. P. C. Nafdu <P.W. 6)r Sri Shiv Narain (P.W. 12), Stnt. 1. B. Shah (P.W. 13). Sri . N. N. Patel (P.W. 14), Sri Mohanlal Gautam (P.W. 27). Sri D. Pandey (P.W. 17), Sri D. N. Deb (P.W. 18), Sri Hukumchand Kachwa (P.W. 20), Sri M. Rampure (P.W. 23), Smt. l»ushpa

(1971] 2 S.C.R . .

Mehta (P.W. 24), Sri Morarji Desai (P.W. 27). Sri Ran1Kishan Gupta (P.W. 30), Sri D. S. Raju (P.W. 35), Sri Patil Putappa (P.W. 36), Sri Sher Khan (P.W. 37), Sri Choudhuri A. Mohamed (P.W. 38), Sri C. M. Kedaria (P.W. 39), Sri N. Ramreddy (P.W. 40) and Sri Abdul Ghani Dar (P.W. 41). On the other hand substanthll number of witnesses examined by the respon-dent numbering no less than t\\·enty gave evidence to the effect that they never saw any such <li~tr!bution. Effort wal) mad., by co~] for the respondent to establish by cr~-examination that such distribution of the pamphlet would not have been allowed by the Watch and Ward department of the Houses of .Parliament. Among the persons who were supposed to have been responsible for the distribution in the Central hall of Parliament the prominent figures were .sri Yunus Saleem, . Sri Chandrasekhar, Sri Sashi Bhushan, Sri Mohan Dharia and some others. It is somewhat strange that most of these people when examined not only denied having participated in the distribution but went to the length of stating that they had never seen the pamphlet before they came to court. although· some admitted having heard discussion betw~n members regarding it. Accordilng to some witnesses for the peti-tioners prominent among whom were Sri Morarji Desai, Sri S. K Patil and SOme others, the pamphlet was the t11lk ot the town fOT days and the Central hall of Parliament was full ol it.

There is thus direct conflict of testimony about the distribu-tion of the pamphlet but there can be little doubt that the pamphlet did find its way in the Central hall ar1d I have . no doubt that quite few copies of it had been distriouted in the hall it:;elf. That there was good deal of talk among the members and discussion over the pamphlet admits of no doubt. lt is diffi-cult to believe that unless the pamphlet was there in the Central hall people would be discussing the contents of it in the abstract. No witness suggested that he himself had taken copy of it to the Central hall. The obvious inference from all this is that there was some distribution i1n that hall although probably the petitioners were trying to exaggerate the extent of the distribution while wit-nesses for the respondent were equally interested in denying it wholesale. Hardly any witness came to the witness box to state that he was not only. given copy o{ the pamphlet hi the Central hall but approached and appealed to personally to carry out the mand·ate contained in the concluding portion thereof. The sub· . stantial evldenco of the witnesses for the petitioners was merely to ,tho effect that copies were being distrlb_pted in much the 8ame fuhton · a1 hand·biJJs arc distributed by adverttslni agents of tradelmen on the itrcet,

. I mav ·refer to the evidence of imP.ortant witnesses lor the .Petitioners who spoke about such distribution. P.W. 11 Sri

Kanwarlal Gupta. himself an advocate in his examination-in-chief said that he saw the pamphlet for the first time on the 12th August being distributed in the Central hall of Parliament by some mem-bers, namely, Sri · Y unus Saleem, Sl'i Sashi Bhushan and others. According to him the pamphlet created such prejudice in his mind against Sri Sanjeeva Reddy that he did oot pursue his inten-B tion to mvite him to dinner at his house although he had already mentioned the subject to Sri Sanjeeva Reddy. He also said that he had discussion with other members of Parliament about the· pamphlet who held the same view as himself. P.W. 12 Sri K. S. Chawda, another member of Parliament said that he had received copy of the pamphlet in the Central hall of Parliament from Sri Krishna Kwnt, member of the Rajya ~abba and having read it came to the conclusion that if Sri Sanjeeva Reddy was elected tO· the Presidential office he would tum the Rashtrapati Bhavan into centre of immorality. Of his own he said nothing about Krishna Kant's appeal to him but when he was specifically asked whether Sri Krishna Kant had told him anyth~n,g at the time he said that Sri Krishna Kant had only mentioned what was in the pamphlet. Sri M.P. Venkataswamy Naidu P.W. 17 claimed to have received copy from Sri Yunus Saleem iro. the Central ball. He also said. that he wanted to meet the respondent to ask him to contradict the pamphlet because his supporters were distributing it. He went to the re~nondent's house in Defence Colony but did not succeed in contai ng him and wrot~ 1l letter requesting him to contradict the contents of the pamphlet but-he had never communicated to the petitioners the fact of having written such letter. Sri Nanu~ bhai N. Patel, P.W. 26. member of the Lok Sabha said that Sri sa.,hi Bhmhan, Sri Chandrasekhar and Sri Yunus Saleem were distributing the pamphlet about 12th or 13th August. When they came to the witness to give him copy he told them that he had· already received one at his flat whereupon they asked him whether he had gone through it thoroughly. On the witness's answering in the affirmative they asked him to be careful and to consider all the facts before voting. Sri Mohanlal Gautam who was elected· to the Raiva Sabha on the 13th August 1969 ·and taken his oath -on the dav following claimed to have received a. copy of the oam-phlet in the Central hall of Par.liament from Sri Shashi Bhushan but had nothini to say about any personal appeal to hfm. Sri C. D. Pandev P.W. 29 said that he 'had seen Sri Sashl Bhushan. Sri 'Kri1hna KAnt. Sri YU!tlUS Sa1eem ·and others distributing the· pamphlet fn the Central hall of Parliament in 2 or 3 batches but thev dfd not jl!ve him copy. In cros•·examfnatlon he Nllld that he had never told Sri R'amreddy, the ftnt J)etltloner fn Pstltlot1' N'o. 4 th11t the pam"blet had been given to him fn the Central hall of Parliament bv SrlJagiiwan R~m and other members nf Parlia-ment. Thic; answer ig surprising as the witness himself was one of the petitioners in Petition No. 4 who never cared to read the ·

whole petition. According to the verification of the answer to the particwars given by Sri Abdul Ghani Dar, Sri C. D. Pandey had received copy of the pamphlet in the Central hall of Parliament from Sri Chandrasekhar and this was based on the information alleged to have been received from Sri C. D. Pandey himself. At this stage I may mention that the major portion of the particulars regardmg the distribution of the pamphlets and the information thereof claimed to have been received by Sri Abdul Ghani Dar in particular from the recipients were not corroborated by most of these persons when they figured a.s witnesses. Sri Hukumchand Kachwa, P.W. 32, member of the Jan Sangh said in his examina-tion-in-chief that he had got copy of the pamphlet in the Central hall of Parliament from Sri Sashi Bhushan Bajpay and Sri Jagjiwan Ram and the fonner had told him that the witness should support the respondent as he was champion for the cause of labour and that Sri Sanjeeva Reddy was characterless person as could be seen from the pamphlet itself. He would have the court believed that after reading the pamphlet he thought that person possessing character like Sri Sanjeeva Reddy's if elected would convert the Rashtrapati Bhavan into brothel. Sri Mahdevappa Rampure, P.W. 35 said that he had got copy of the pamphlet from Sri Yunus Saleem who had told him at the time of the distribt•tion that the witness could get enough infonnation from the pamphlet. Sri R. K. Gupta, P.W. 43, member of the Lok Sabha who had :received copy of the pamphlet at his residence said that he had gone to the respondent thereafter on being informed by his da";;hter that telephone call had come from the respondent. The respon-. dent had 8..1ked the witness to support him which the latter refused. "The witness however claimed to have told the respondent that pam-. phlet like the ~ he had received should not be used and should be contradicted by his party whereupon the respondent had sought to excuse himself by saying "What can I do." Although he had seen the pamphlet·being distributed in ·the Central hall he did not re-member who were doing it. Sri D. S. Raju, P.W. 49, member of the Lok Sabha, said that he had received copy in the Central hall ot Parliament and so far ·as he could remember it was Sri Yunus Saleem who had passed it on but had not spoken to him at the time of making it over. Sri Patil Putappa, member of the G· R"ajya Sabha, P.W. SO, said that he had seen Sri Yunus Saleem distributing· the pamphlet in the Central hall and had received copy from him. He claimed to have to1d Sri Yunus Saleem that the latter was acting improperly whereupon Sri Yunus Saleem had r~uked him S'ayin" that it was none of the wi~ss's busjness. 'Sri Ramreddy, P.W. 54, one of the petitioners in Petition No. 4 said that he had received copv in the Central hall o.f Parliament from Sri Yunus Saleem and Sri Sashi Bhushan distributinJ!' copjes together. He also said that he had seen not only Sri Yunus Saleem

'3fDd Sri Sashi Bhushan but Sri Krishna Kant, Sri ·S. M. Banerjee,. Sri Moulana Ishaqi, Sri Chandrasekhar and Sri Mohan Dharia all named in the petition distributing the pamphlet. He averred that he had complained to the Deputy Speaker of the House about thr unlawful activities of Sri Yunus Saleem whereupon the latter bad run away from the house. He also said that the proceedings ohhe House would support his statement. Reference was made in this. connection to column 3813 of the proceedings of the Rajya Sabl,l.a dated the 13th August 1969. The official report of the proceed-ings shows that Sri Ramreddy was making complaint about Sri Yunus Saleem goin~ about collecting signatures on piece of paper and making political campaign of collecting signatures to the-c paper in tbe house and further that he was going from member to member. On being asked by the Deputy Chairman as to whether the witness himsolf had been approached, Sri Ramreddy .said that Sri YW1us Saleem had gone to Sr,i Muniswamy whereupon Sri Munisw~y said that he (Sri Yunus Saleem) had asked one Sri Kulkarni to sign. Sri Ramreddy thereupon had said that Sri Yunus Saleem had some document of political nature in his hand a.nd the house was not meant for such activities. When he was referred to passage in Petition No. 5 wherein reference was made to Sri Yunus Saleem's activities he said that he was not very definite "about the signature business" and he did not ko.ow whether. Sri Yunus Saleem was in fact collecting signatures of others on any document.

It was only Sri Abdul Ghani Dar who said that at the time of giving him copy of the pamphlet in the Central hall Sri Y onus Saleem had told him that Sri S. Reddy was ~bauchee, that he was in collusion with Jan Sangh, that the Prime Minister and others were all against Sri Sanjeeva Reddy and that if Sri Sanjeeva Reddy won the election it would be victmy for Jan Sangh and Muslims would be eliminated.

The above is not exhaustive of the evidence adduced on beha1l of the petitioners with regard to the distribution of the pampblct in the Central hall as means of exercising undue influence over electors but it is fair summary of the evidence adduced which on the face of it barring that of Sri Abdul Ghani Dar, falls far short of personal appeal or any effort to pursuade voter by deflection of his will and interference with his electoral right. Sri Yunus Saleem as well v the other persons commonly referred to as younr Turks stoutly denied having ever engaged themselves in any dis· tribution of the pamphlet and most of them disclaimed ever having come across it before they figured as witnesses in court. Sri Abdul Ghani Dar's statement in the witness box abOut Sri Yunus Saleem having taken him aside for making an appeal is directly contradict~ ed by statement in the petition where in paragr:aph 13(b)(iv}

he had stated that his talk with Sri Y ~'us Saleem had taken place in the presence of number of members of Parliament. It would be expected that Dar would remember the facts of the distribution more clearly on the 16th September 1969 when the petition was filed than when he came to the witness box in March 1970. Whateyer be the reason for the deviation in the Statement on oath beiore the court from that in the petition it does not inspire confidence.

The witnesses for the respondent adduced various reasons in their lengthy cross-examination based mainly on political animosity for the witnesses for the petitioners deposing in regard to distribu-ti~ of the pamphlet by .them. From the manner in which these reasons were given out in quick succession it would appear that .. they had come well . prepared with the case they had to meet. However that may be there was direct conflict of testimony between the two sides and it would not be uncharitable to remark that truth sat very lightly on the lips of most of the witnesses.In my view the evidence falls far short of any personal appeal through the means of the pamphlet and I cannot hold that the offence of undue influence was committed by some people by merely distributing the same. Such distribution may attract culpability under s. 171-G of the Indian Penal Code but would not per se attracts. 171-C.

I do not therefore find it necessary to refer to the evidence of witnesses lor the respondent on the question of the exercise of undue influence by distribution of the. pamphlet. While I find myself unable. to say that they were all speaking the truth when they said that they had not seen the distribution of it m the Central hall or that they had not seen copy of the pamphlet before they came to the witness box, I cannot hold in favour of the petitioners m~l:y because some of the witnesses for the respondent were not witnesses of truth. It would be unprofitable to examine the evidence closely to find out where they lied or the extent of untruth uttered by them. Such an analysis might have become necesSary if I had come to the conclusion that there was a: prima facie case made out by the petitioners about the exercise of undue influence by mere dissemi· · nation of the pamphlet which could be contradicted by the respondent's wltnessea.

The above being my view on the question oft the exercise of undue jnftuence by means of the l)ublicatJon of tit\ pamphlet und the cllueminatlon of it, the question of the reapondent't connlvlna at Jt dou :not arise. I may however indicate shortly the respective cases or tho parties. It was the case of the petittonert that the pamphlet originated from the camp of the Prime Minister and her ~upporters who were actively helping the respondent in his election

campaign and it was tllese supporters who had taken to the meill tnc~ or publicauon ox me pampruet at the eleventh hour before the eiecuon so that tnere could be no ettective counter a~uon to the w11d propaganoa. Whatever tne cnarges raised agamst the Prime Mmister m tne petiuon no ev1dence was adduceo oo show that she was helping the respondent although it may be said that she did not help the cause of Sri Saneeva Reddy in the way she had dC'ne in the case of Dr. Zakir Husrun. Three witnes~es for the petitioners stated in their examinauon that they had been to the respondent's house in Defence Colony after the commencement of the publication of the pamphlet requesting him to make state-ment himself in contradiction of the a.tlegations contained therein and making it clear that he himself Q.ad nothing to do with it. It is difficult to appreciate what led these persons to think that the respond~t had anything to do with the pamphlet or that he was the proper person to issue contradiction to the imputations therein made against Sri Sanjeeva Reddy. As I have already noted, th~ name of the respondent does not occur at all in the pamphlet nor is there any remote reference to him in it. The respqndent was not the only other contestant for the office. Sri Madhu Limaye, P.W. 8, and some witnesses for the respondent thought that it was the work of enemies of the respondent. Any statement of the respondent .disowning the pamphlet or even asking the electors to ignore it would only excite suspicion aga;nst him as involved in its publication. Sri N. P. C. Naidu P.W. 17 who & claimed to have copy of the pamphlet from Sri Yunus Saleem on the 11th or 12th August said that he had gone to the respon-dent's house in Defence Colony to get contradiction to the pamphlet but could not meet him, as result of the talk he had with the respondent's supporters who were there and later wrote Jettu--to him asking him to counteract the propaganda in the pamphlet. The respondent however denied having received any such letter. Smt. Tarkeshwari Sinha P.W. 34, said that she had · golle to the respondent's house in Defence Colony on the 14th Au~st 84ld had met him in verandah and shown the pamphlet to him and asked him to repudiate the contents thereof when the respondent had said "What can I do about it." As the respondent was unresponsive she had to come away. Not only, was this visit openly disputed by the respondent but several witnesses were exa-mined to show that she had not gon'e there. The security man said to have been potted ill the respondent's house deposed to the e!ect that he knew Smt. Tarkcshwarl Slnha and was positive· that •he had not gone there on the 14th August. The respondent hlm· ll1f ta!d that the sugpatlon that in the month of August vt11tor of the poaltlon of Smt. Tarkt.shwari Sinha would have been received by hlr.D ·not in the air-conditioned drawing room where he was sitting but outside in the uncomfortably hot verandah was fantastic. The respondent's son-in-law ·'llsG gave evidence to the same effect.

Sri R. K. Gupta, P.R. 43, said that he had met the respondent two or three days before the date of the poll 31Ild told him that the pamphlet should be contradicted by his party when the respondent gave him the same reply as he had done to Smt. Tarkeshwari Sinha. Again this evidence was denied by the respondent as well as by his son-in-law. The evidence adduced on the two sides is directly contradictory to each other and it would have been the duty of the court to analyse the same in greater detail and indicate the reasons for accepting one. version and rejecting the other if the court was to take the view that there was exercise of undue influence by the mere dissemination of sordid pamphlet. In the circumstances of the case it would be useless to go into the question any further.

any further. Another ·allied question which loomed large during the exami-nation of the witnesses was whether the respondent had in his election campaign gone to Lucknow and addressed members of the Legislative Assembly there and canvassed their support in his favour basing his claim on the support of the Prime Minister. This was detx>sed to in general way by Sri Ram Singh P.W. 19 while Sri Mumtaz Mohamed Khan P.W. 44 went further and said that the respondent had told people at Lucknow openly that Sri Sanjecva Reddy was not suitable candidate and that there were many ··stains on his character. Both these witnesses as also Sri Bansi-dhar Pandey, P.W. 18, Sri Jagdish Prasad, P.W. 20, Sri Rajendra-E prasad Si~gh, P.W. 21, Sri Basant Lal Sharma, P.W. 22, Sri Ram-pyre Panika, P.W. 37 and Sri Abdul Saleem Shah, P.W. 38 depos-ed to the effect that two or three days after the visit of the respon-dent to Lucknow, Sri Dinesh Singh, the External Aff~irs ¥inister, had also gone there, met the members of the Legislati%. Assembly ·in groups of four or five in their hostel knoWin as Darul-Shafa and openly told them that the respondent was the candidate of the Prime Minister and that if the addressees did not support his candidature they would lose all the patronage of the Prime Minister ·in the luture. Some even said that Sri Dinesh Singh had threaten-ed them with refusal of party tickets i111 future elections if they were to go against the wishes of the Prime Minister. So far as the part imputed to Sri Dinesh Singh is concern~d, he denil!d having moved out of Delhi between the 1st and Y6th August and said that his first visit to Lucknow about this time was on 22nd August after the poll had taken place. It was put to him in his exnmion-tJon-in-chief as to whether he did go to tucknow on the 9th, t Oth or ·11th August and his answer was in the negative and he nvet·red that so far as he could recol1ect he had not gone to Lucknow before 11 the 22nd. Sri Dinesh Bingh was subjected to prolonged cross-examin~tion and the· diaries of his engageme.nts maintained by his secretaries were made · the subject of close scrutiny before the

S. K. SINGH V. SlW V. V. GIRl (Miller, /,)

&ecretarics were made the subject of close scrutiny beiore the Court. The evidence of· Sri Dinesh Singh and of several other witnesses for the respondent was to the effect that whenever Sri Dinesh Singh left Delhi tour programme would be issued for tbe guidance of officers in places to be visited by him a.nd no such tour programme was issued in the month of August before the 22nd. Sri Dinesh Singh funher stated that he had ·auen4ed an invitation to party at Mysore House given by Sri G. S. Pathak, the then Governor of Mysore. In this he was supported by Sri 1. K. Gujral who produced letter of invitation confirmilllg the throwing out of party at the Mysor~ Home by Sri G. S. Pathak on the lOth Au!!ust and invitation to him thereat and stated that he disti:1ctly ren:lembered having· met Sri Dinesh Singh in that party. Quite t number o{ witnesses examined on behalf of the respondent gave evidence to the effect that if Sii Dinesh Singh had gone to Lucknow between the 1st and 16th August they would have come to know of it and so far as their recollection went Sri Dinesh Sin~h did not go tl1ere during that. period. While it is true that the diaries pro-duced by the Secretaries of Sri Dinesh Singh were not as full or complete as regards his engagements as one might expect them to oe. I have no hesitation in holding that Sri Dinesh Singh did speak the truth iln that he did not go tp Lucknow during the period l.st to 16th August. It has come out in evidence that Sri Abdul Ghani Dar was preparing to launch an election petition against the res-pondent practically immediately after the declaration of the result and that he was busy collecting evidence in suppon of his 'petition. . Apart from the absence of any tour programme of Sri Dinesh Singh-it should not have been difficult for the petitioners to produce evidence either from the records of the railways or the. Indian Airlines to show that some r~servation of accommodation had been made for Sri Dinesh Singh's · iourney to Lucknow and back at or ·about this time. No attempt was made to produce any. such records. Counsel for the petitioners even went to the length of suggesting to Sri Dinesh Singh in cross-examination that . it was possible for him to have travelled to Lucknow from Delhi 'by road and come back the same way so as to leave no record of reser:-vation either by rail or by air. In my view, the sugges~im'l is of little value. After all even according to the evidence of witnesses for the petition~rs Sri Dilllesh Singh's visit was not secret one. He is suposed to have gone there to meet people in order to canvass s~tpport for the respondent from a· large number of members of the U.P. Legislative Assembly and there was -rio reason 'IJ{hy he should try and avoid more comfortable journey by rail or air rather than undertake motor-car journevs of over 300 miles each wav. My definite conclusion is that Sri Dinesh Singh did not go to Lucknow as alleged by some of the witnesses for the petitioners at or about the time alleged_ and consequently he· did not canvass support in favour of the respQndent as imputed to bim. ll-LJOBSupCT /71As regards the evidence of the two witnesses about l.he respon-dent addressing members of the Legislative Assembly of U.P. in his o'Yn support by saying that he was the candidate of the Prime Minister or that Sri Sanjeeva Reddy was not a_ fit person for election to. the high office Orf the President of India, I have no hesitation in holding that it cannot be true. According to the evidence of Sri Mumtaz Mohamed Khan, P.W. 44, the persons present at the time when the respondent was castigating Sri Sanjeeva Reddy were Sri Basant LaJ Sharma, Sri Abdul Saleem Shah and Sri Kalpanath . Singh. Sri Kalpanath Silllgh was not examined but the otller two were ·and neither of them had anything to say on this subject A.ccordin$! lo Sri Abdul Saleem Shah it was Sri Dinesh Singh who had told the members of the Legislative Assembly at Daml-Shafa that Sri SaNeeva Reddy and his group were working in collusion with Jan Samgh and it would Qlot be proper to vote for him. Sri Dinesh.Singh is also alleged to have said that Sri Fakhruddin Ali Ahmed wanted. that no Muslim should vote for Sri Sanjecva Reddy as he· and his supporters were anti-Muslim. As I have held that .Sri Dinesh Singh did not go to J..ucknow at the time alleged he could not have canvassed support for the respondent as deposed to by the witnesses.

In his evidence the respondent stated that he had not spoken to the Prime Minister or any other Minister before annvuncing his candidature for the office of the President of India. He had noth-ing to do with the Congress Party after 1957. After demitting office of the Vice-President of India working as the Pres1dent he · had left Rashtrapati Bhavan and gone to his son-in-law's place in Defence Colony. He had been out of Delhi from the 28th July .to 13th August going round to the different States : he had come back to Delhi on the 1Oth August only for few hours. He admitted having gone to Lucknow on his tour but he did not meet the legislators. there in groups as suggested by some of the witnesses but_ had spoken to them at fairly well-attended meeting. He denied ever having referred to Sri Sanjeeva Reddy in his sreech ·or said anything about hls character. He denied' having any knowledge of the distribution of the pamphlet and stated expressly that nobody had ever complained to him that pamphlet againM-the personal conduct and character· of Sri Sanjeeva Reddy was being distributed. He did not see Sri Abdul Ghani Dar's letter alleged. to have been written to him on the 11th August. He. did not meet the Prime Mi111ister between the 20th July and 16th Au~st. He said that he had published pro~amme of his mtended tour to the capitals of the different States like Lucknow, Patna, Calcutta etc. and 'bad informed some of his friend~ who were -takin~ interest in him about his prol)()Sed visits. He stated furt]Jer that although he had toured the States fairly extensively he did

not approach the members of Parliament in Delhi personally as he W'as fairly well kno\Wl to them.

Counsel for the petitioners tried to make out case that the respondent did not do any canvassing in his own support in Delhi because he was aware that others were effectively doing it. It was ev.en suggested that some sort of arrangement must have been arrived at in July 1969 that if his name was not acceptable to the Congress Parliamentary Board he would immediately announce his own candidature for the office of the President. The respondent stoutly denied this and said there was no truth in it.

In my view the charges levelled against the respondent as mentioned above were not borne out by the evidence.

Another aspect of the case of the petitioners under the heading of undue influence was that an attempt was made by number of persons supportim:g the respondent to raise scare to the effect that vote in favour of Sri Sanjeeva Reddy would be against the interest of persons professing the Muhamedan faith. In Petition No. 5 of 1969 it was formulated in paragraph 13(c)(iii) to the effect that Sri Fakhrudin Ali Ahmed and Sri Y:unus Saleem had represented to the Muslim voters that Sri Sanjeeva Reddy was in fact candidate of the Jan Sangh Party and held out threat that if he was successful the fate of the Muslim community in Tndia would be sealed. An instance is given of the conversation of Sri Yunus Saleem with Sri Abdul Ghani Dar and such influence was said to have been exercised over all the Muslim voters in the country specially those iln Parliament. In the particulars supplied with regard to this pleading in the petition, it was said that the threat was given by Sri Fakhrudin Ali Ahmed to Sri Abdul Ghani· Dar, Sri Sher Khan nad Sri Choudhary A. Mohammed at their residence over the telephone by Sri Yunus Saleem to these three persons on the same day in the Central hall of Parliament. There was some amplification of it in the evidence. Sri Abdul Ghani Dar's statement in the witness box that Sri Yunus Saleem had called him aside in the Central hall of Parliament to convey the threat to Muslims in case of Sri Sanjeeva Reddy's success varies widely from his case in the petition that such communication was made in the presence of number of members of Parliament. Sri Abdul Ghani Dar had said further that he had been approached ·over the telephone by Sri Fakhrudin Ali Ahmed in the evening of the 11th August, that Sri Fakhrultin Ali Ahmed had told him of the information conveyed to him by Sri Yunus Saleem, that in spite of his warnimg the witness had decided not to side with the respondent and the Prime Minister and claimed to have addressed letter to the Muslim members of Par:liament in this regard. He a1so said that he had talk with Sri I. K. Gujral early on the morning of the 16th August when the latter had to1d him that the

Prime Minister expected full suppon trom him and that if Sri Sanjeeva Reddy came out successful the Prime Minister might not continue in office and Dar also cla.i.ID.ed to have sent a,telegram to the Prime' Minister immediately thereafter appraising her of all this. On his attention being drawn to the difierence between the plead-ing and the oral evidence about the con•Jersation with Sri Yunus Saleem and being asked to state which of the statements was correct the surprising answer was that both were correct.Similarly, Sri Choudhary A. Mohamed P.W. 52 spoke of hav-ing received telephone call from Sri Fakhrudin Ali Ahmed on t!1e 1Oth or 11th August to the effect that Muslims stood to gain in the event of the respondent's success while the Muslim community would be in danger if Sri Sanjeeva Reddy came out successful in the election. According to Sri Choudhary A. Mohamed this telephorte conversation was followed by personal talk in the office of Sri Fakhrudin Ali Ahmed within the precincts of the Houses of ·Parliament when Sri Fakhrudin Ali Ahmed told Sri Sher Khan who had accompanied the witness that in cases they decided to go against the respondent their ciaims for Congress . nominations in future elections would be ignored. Sri Sher Khan P.W. 51 spoke to having received telephone call from Sri Fakh- . Iudin Ali Ahmed in similar way and claimed to have met him at about noon the same day in the Centr'll hall of Parliament when · the Mmister had emphasised on him the need to support the res-. pondent warning the witness that in default tht>reof the latter's -name would not be included in Committees of the Houses of Parliament or i:n future delegations. This witness had further said that he had received telephone call from Sri Yunus Saleem on the same day when similar conversation_ had taken place.

It has already been noted that according to Sri Abdul Saleem Shah P.W. 38 Sri Dinesh Singh had held out similar threat to ·him and other Muslims du1:ing his visit to Lucknow in pre-election days, and evidence much to the same effect was given by Sri Mumtaz Mohamed Khan, P.W. 44. So far as the last two wit-nesses are concerned I must reject their testimony as I have already held that Sri Dinesh Singh did not visit Lucknow as alleged. · Both Sri Fakhrudin Ali Ahmed and Sri Ym1us Saleem denied having he!d out threat to any Muslim elector as depo,sed to. Sri Fakh-- rudin Ali Ahmed said that he had never received any letter from Sri Abdul Ghani Dar bearing date the 13th August 1969. He further denied having spoken to Sri Sher Khan or Sri Choudhury A. Mohamed as suggested by these two witnesses. Sri Yunus Saleem admitted having had talk with Sri Sher Khan about the Presidential election but added that when he was informed that Sri Sher Khan was committed to Sri Nijalingappa and that he was working_ for Sri Sanjeeva Reddy the question of any further talk

did not arise. So fax as Sri Choudhury A. Mohamed is concerned, Sri Yunus Saleem admitted that he used to visit him at his hou:.e but no talk regarding the Presidential election had taken place betwcon them. The witness admitted having had talk with Sri Abdul Ghani Dar in the Central hal! of Parliament a.bout the Presidential election. He ad!uitted having suggested to Sri Abdul Ghani Dar that he should consider whether it would be advisable in the interest of democracy and socialism to support Sri Sanjeeva Reddy or the respondent. · He further admitted having held discussion with many members of the Parliament both Muslim and non-Muslim on the question of the Presidential election but it would not be correct to say that he had approached only Muslim members as suggested or had appea!ed to anybody on the ground of threat to any particular community. In connection with the above note may be made of the statement of some other Muslim witnesses. Syed Ahmed Aga R.W. 10, member of the Lok Sabha from Kashmir said that he had seen people procuring sig-aatures in the name of party discipline in support of Sri Sanjeeva Reddy's candidature and one such person was Sri Sher Khan. witness in ibis ca.se. . Asked whether he had been contacted by any Minister of the Central Government to vote for the respon-dent in the interest of the Musli~~ his answer was in the negative. Evidence much to the same effect wa_s given by Sri· P. M. Syed, R.W. 13, Sri Asraf Ali Khan, R.W. 27 stated thafthere wa5; no propaganda in favour of any of the candidates on communal basis so far as he was aware and he knew that se.veral Muslim gentlemen were working for Sri S~jeeva Reddy. Sri Abid Ali R.W. 33 also stated that no appeal was made to him by anybody on communal grounds and similar was the statement of Sri Mohamed Ali Khan R.W. 35. Considering the evidence as whole I am of the view that the petitioners have failed to establish beyond reasonable doubt that any pressure was brought to bear upon the Muslim elecoors on communal grounds. Sri Abdul Ghani Dar was out to collect and create evidence very soon after the declaration of the result and his statements do not inspire any confidence. In my -view he was trying to make out case in support of his petition from the very beginning and the tape record of his conversation with Srj Jagat Narain R.W. 25 lends strong support to this view. There can be no denying the .(act that Sri Jagatnarain had tried to contact Srl Abdul Ghani Dar in order to dissuade him from flling the election petition. On the flrst occasion of the te1ephone· cal1 Sri Abdul Ghani Dar happened to be out and the teJephone receiver was picked UD by his wife. According to Sri Abdul Ghani Dar, Sti Jag_atnarain had conveyed an impression to his wife that there would be peril to him' in case Sri Dar insisted on fiH~ the petition. Sri Dar's wife did not come to give evidence in support of it and the tape record of the conversation between Sri Dar 2nd Sri Jagatnarain suggests that while Sri Jagatnarain was trying to

-:~ 38-8 SUPREME COURT REPORTS

· [1971] 2 S.C.R

make out· that he bad not held out ~ threat to the life or limb limb of Sri Dar· the latter was ttying his best to get an ·admission to that effect from Sri Jagatnarain.

threat to to the life or limb limb

I may also note that officers from the birec;torate of Tele-phone from Delhi were summoned to produce record.s ' of trunk telephone calls made by Ministers in the election days obviously with the idea of showing that th~y :were approaching others for the purpose of active propaganda in support of the respo~dent,, The best evidence ·in this regard would have been the statement on oath of persons who had. been so appro~ched but no attempt worth the name was made in this regard. Charges of . propaganda on communal basis on -the strength <?f conversations either over the t~lephone or personally but covertly can be launched very easily but. m the absence of any independent corroboration tJ;tey do not inspire credibility and on the ·evidence in this case 1 am not satisfied that such ~barges have been established or . that the evidence of witnesses who have spoken about such propaganda · must ,be accepted.

On the question as to whether the Prime Minister exercised any undue influence over Sri Nijalingappa, Sri S. K. Patil, Sri Kamaraj, Sri Morar.ii Desai and Sri Y. B. Chav~n by threat of serious consequences following their resolution· to nominate Sri Sa,njeeva Reddy as the Congress candidate, it is undeniable that she was not Httle vexed with the attitude of· those persong in setting up as candidate Sri Sanjeeva Reddy when: she herself had put forward tlte name of Sri Sri J agjiwan Ram. Both . Sri Morarji Desai and Sri Nijalingappa came to the· witness box and deposed about the Prime Minister having used the words "serious conse-ouences would lollow" In one of the letters to the Prime Minis-ter Sri Nijalingappa had mentioned this to which there was no reply. As the Prime Minister did not come to the witness box to give denial to this the statements of Sri Morarji Desai and Sri Nijalingappa must be acc~pted. But the question still remains . . whether there was threat to anybody's electoral right at that time so as to amount to the commission of undue influence. Electoral right is defined in s. 171-A (b) as the right of person to stand, or not to stand as, or to withdraw from being, candidate or to vote or refrain from voting at an election. · '~ne pleading does not make out case of threat to Sti Nija1ingappa and others to refrain from votin!! at the election but it is limited to threat to make them change their decision to nominate Sri Sanjeeva Reddy ~s the Con-gress candidate. There is no plea of threat to Sri Sanjeeva Reddy to withdraw from ~in!! candidate. as·, the threat pleaded being one to coerce Sri Nijalin!!appa and others to change their decision to nominate does not affect their electoral right. There was no evld~nce of any subsequent threat by the Prime Minister and a~ slie herself was responsible for filing the nomination paper of Sn

Sanjeeva Reddy there could be no que&tion of her holding out. threat to Sri Nijalingappa and others to make them change their decision to nom1nate candidate. ·

There was no evidence of any undue iafluence having been .. committed as alleged in paragraph 13 (c) ( v) of the petition. NQ mel!lber of the legislative assembly of West Bengal or Andhra Pradesh came to give evidence to the effect that the res· pqndent or his supporters had raised scare that Sri Sanjeeva Reddy, if successful in the Presidential election, would enforce President's Rule in those States.

In my view the plea that scare was created by the workers and supporters of the respondent to the extent that Sri Kamlapati Tripathy, the Pr~sident of the U.P. Congress Committee pleaded forfreedom of vote on the 13th August 1969 completely departing from his earlier attitude that the members of the electoral college belonging to the Congress fold should back Sri. ~njeeva Reddy solidly can be dismissed summarily. Sri Kamlapati Tripathy R,W. 61 gave cogent explanation for his change of attitude just 0 before the poll and according to him he pleaded for freedom of vote i:n order to avoid split in the p!Uty which was fairly evident at that time. The evidence adduced by the petitionel'l' does not establish that the change of attitude was due to ·any scare by the workers and supporters of the respondent as a11eged. Th'e rift in the party became matter of public knowledge in the 4\rst week of August and the process of the members of the Congres!t party ·• arraying themselves in hostile camps went on practically till th~ : eve of the election. There was no evidence of any scare being caused by the commission of any undue influence.

IJ'Iasmuch as I have come to the conclusion that the evidence . adduced does not establish the exercise of undue influence in the election in any of the forms raised in the petition, the question of the result of the election being materially affected thereby does not arise. But I may point out that in order to substantiate such a· ground for setting aside an election it is not enough for witnesses to· come and say that they were shocked or pained by readilng the pamphlet as most of them gave out. Only two witnesses came to the witness box and said that they had changed their minds to vote for Sri Sanjeeva Reddy after perusal of the pamphlet. Mr. Daph-tary argued that there was nothing in the Act of 1952 which forbade person from disclosing in his evidence which way he had voted and that it was open to witnesses to come and state the reaction of the pamphlet on their min<.ls and express how it had affected their conduct at the· poll. White T do not think it necessarv to express any opinion on this it can be safely held that even if the exercises of undue influence had been proved the evidence of onlv two wit· nesses to show that their electoral right had been interfered with .

r t.hrn6:Y: would not have been eno.~gh for the purpose of setting astde the election.

·My conclusion therefore on the issues regarding undue in:tlu· ence may be summed up as f0llows. There was fair runoull't of circulation of the pamphlet, in the Central hall oi Parliament among members of the electoral college by number of them. Undeniably there was considerable publication of it by post both to electors jn DeJhi and outside. The mere dissemination of the pamphlet did not amount to exercise of any tmdue infiuence or interference with any electoral right. It had to be followed up either by personal v~rbal app·eal or an appeal in \\-titing but there was no evidence thereof in this case. There was no appeat to Muslim members·on g~ounds of -religion to vote in favour of the re~pondent in prefer· ence to Sri Sanjeeva Reddy. There was no evidence of exercise of undue influence by Central Ministers over any members of the electoral college by any threat that in case they failed to vote for the respondent they would lose the patronage of the Prime Minis· ter. The offen~e of undue infltlence was not committed bv the respondent or any of his workers. The respondent himself was not guilty ol any such commission. There was no commission of the offence of undue itnfluence by anybody with the connivance of the respondent and the result of the election was not materiaHy affected as .a result of any commission of the offence of undue influence.

As. regards issue 4(a) in Election Petitions 4 and 5 of 1969 my view is that some of the allegations made m paragraphs .8 ( 3) and ( 13) of the petition would pe sufficient pleading of commission of undue ii!lfluence under s. 18 ( 1) (a) of the Presidential and ,Vice-P~esidential Elections Act, 1952. As regards issue 4(b) the only allegation which was substantiated was lair amount of publication and dissemination of this scurrilous pamphlet which by itself did not amount to the exercise of undue influence. Sri Abdul Ghani Dar's evidence on this point is wholly unacceptable. My answer to issue 4 (c) in an its branches is 'jn the negative.

We indicated on the 11th M~y 1970 that we would not award any costs to either side. As the respondent has succeeded in the petition normally he could expect to get an award of costs in his favour. But one cannot over~ook the fact that the bulk of the oral evidence in this case centred round the question as to whether there was publication of the scurrilous pamphlet in the Central haJJ of ParHament. very- large number of petitioners' wimesses came to give evidence in support of it while the respondent examined host of witnesses to disprOve this fact. Although in the view I have taken it was not necessary to mtme the persons who were guilty cf such pub1ication I have already indicated that quite number of

S. K. SINGH V. SHRI V. V. GIRl (M{tter, J.)

members of Parliament was responsible for it. The hearing of this case was protracted unreasonably J>y the examination of witnesses on this one question and as the respondent has not succeeded in disproving dissemination of the pamphlet in the Central hall it would not be right to make an award of costs in his favour. The litigation was not one of an ordinary type and it was conducted with great zeal on either side. It has divulged sad lack of res-ponsibility and uprightness in the elected representatives of the people figuring either as witnesses for the petitioners or as witnesses for the respondent. In case like this where both sides are respon. sible for putting into the witness box large number of persons who deliberately gave evidence which was not true, the proper course is . not to award costs even to the successful party ..

Petitions dismissed.