According to the Section 123 of the Representation of the People Act, 1951, the following shall be deemed to be corrupt practices for the purposes of this Act:-
(1) "Bribery", that is to say-
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing-
(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or as a reward to-
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward-
(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or
(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.
Explanation.-For the purposes of this clause the term "gratification" is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in Section 78.
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere 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 electoral 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 any elector, or any person in whom a candidate or an elector 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 a 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) a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
Explanation.-For the purposes of this clause, "sati" and "glorification" in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 (3 of 1988).
(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.
(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself the members of his family or his agent) to or from any polling station provided under Section 25 or a place fixed under sub-section (1) of Section 29 for the poll:
Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:
Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
Explanation.-In this clause, the expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.
(6) The incurring or authorizing of expenditure in contravention of
Section 77.
(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:-
(a) gazetted officers;
(b) stipendiary Judges and Magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.
(8) Booth capturing by a candidate or his agent or other person.
Explanation.-
(1) In this section the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) For the purposes of Clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent of that candidate.
(3) For the purposes of Clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union territory) or of a State Government shall be conclusive proof-
(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service such person ceased to be in such service with effect from the said date.
(4) For the purposes of Clause (8), "booth capturing" shall have the same meaning as in Section 135A.
On whom the burden of proving the corrupt practice lies?
Discuss the nature of proceeding followed in election petition making allegation of corrupt practice.
In Kumara Nand v. Brijmohan Lal Sharma1 Supreme Court held that:
Onus to prove the essential ingredients prescribed by sub-section (4) of Section 123 of the Representation of the People Act is on him who alleges publication of false statements of fact. The election petitioner has to prove that the impugned statement has been published by the candidate or his agent, or if by any other person, with the consent of the candidate or his election agent. He has further to show that the impugned statement of
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1. MANU/SC/0279/1966 : AIR 1967 SC 808 (813).
fact is false and that to the candidate either believed that statement to be false or did not believe it to be true. It has further to be proved inter alia that the statement was in relation to the personal character or conduct of the complaining candidate. Finally it has to be shown that the publication was reasonably calculated to prejudice the prospects of the complaining candidate's election. But though the onus is on the election petitioner to show all these things, the main things that the election petitioner has to prove are that such a publication was made of a statement of fact and that that statement is false and is with respect to the personal character or conduct of the election petitioner. The burden of proving that the candidate publishing the statement believed it to be false or did not believe it to be true though on the complaining candidate is very light and would be discharged by the complaining candidate swearing to that effect. Thereafter it would be for the candidate publishing the statement to prove otherwise. The question whether the statement was reasonably calculated to prejudice the prospects of election of the candidate against whom it was made would generally be a matter of inference. So the main onus on an election petitioner under Section 123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that that statement was false and related to his personal character or conduct. Once that is proved and the complaining candidate has sworn as above-indicated, the burden shifts to the candidate making the false statement of fact to show what his belief was. The further question as to prejudice to the prospects of election is generally a matter of inference to be arrived at by the tribunal on the facts and circumstances of each case.
The Apex Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta1 observed that:
"Onus lies on applicant to prove both commission of act which law regards as corrupt practice and responsibility of successful candidate directly or through agent. Fundamental right to conserve a language under Article 29(1) of the Constitution is not a corrupt practice."
Charges of corrupt practice have been dealt with by the Supreme Court for over 20 years now in election appeal under the Act. The Supreme Court in the case of Mohan Singh v. Bhawar Lal,2 held that:
"The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit the corrupt practice must be established and unambiguous."
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1. AIR 1966 SC 183.
2. MANU/SC/0124/1963 : AIR 1964 SC 1366.
In Laxman Shankar Patil v. Gopal Asaram Sharma,1 question of corrupt practice raised in petition challenging election of Municipal Council on the ground that particular person was not present at the polling place. High Court held that apart from corrupt practice, an election is liable to be set aside. The case does not fall in any of the items defining "corrupt practice" under Section 22.
It was observed by the Supreme Court in Mahant Sheo Nath v. Choudhry Ranbir Singh,2 that:
A plea in an election petition that a candidate or his election agent or any person with his consent has committed a corrupt practice raises a grave charge, proof of which results in disqualification from taking part in elections for six years. The charge in its very nature must be established by clear and cogent evidence by those who seek to prove it. The Court does not hold such a charge proved merely on preponderance of probability the Court requires that the conduct attributed to the offender is proved by evidence which establishes it beyond reasonable doubt.
The Supreme Court in Datatraya Narayan Patil v. Dattatraya Krishnaji Khanvilkar,3 analysed and held that:
Analysing the provisions of sub-section (4) of Section 123 of the Representation of the People Act, 1951, it is apparent that to bring the case under this sub-section, the petitioner must prove (1) that there was a publication by a candidate or his agent or by any other person with the consent of the candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, (2) that the false statement is in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, and (3) that it is a statement reasonably calculated to prejudice the prospects of that candidate's election.
It is clear that the burden of proving that the impugned allegations of facts are false lies on the petitioner, and that burden is discharged by the petitioner by examining himself and denying the alleged facts said to have been committed by him, and if the evidence of the petitioner is in the circumstances, accepted by the Court, then the burden shifts on to the person publishing the statement to prove that the alleged facts are true, or to prove some other circumstances which made him bona fide believe in those facts. In the light of the aforesaid observations, the impugned publications will have now to be examined.
Besides, the Supreme Court in Manmohan Kalia v. Shri Yash,4 observed that, the allegation of corruption practice must be proved as strictly as a criminal charge.
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1. 1986 Mah LJ 481.
2. (1970) 3 SCC 647.
3. MANU/MH/0047/1964 : AIR 1964 Bom 244 (246).
4. MANU/SC/0160/1984 : AIR 1984 SC 1161.
Whether an appeal on the ground of religion constitutes corrupt practice? critically analyse.
The Supreme Court in Hari Rai v. Ramjilal,1 observed that, corrupt practice is of quasi-criminal nature. Charge to be proved beyond doubt. Petition must not be a roving fishing enquiry.
In S. Baldev Singh Mann v. Gur Charan Singh,2 Supreme Court further observed that:
"It is well-settled that an allegation of corrupt practices within the meaning of sub-sections (1) to (8) of Section 123 of the Act, made in the election petition are regarded quasi-criminal in nature requiring a strict proof of the same because the consequences are not only very serious but also penal in nature. It may be pointed out that on the proof of any of the corrupt practices as alleged in the election petition it is not only the election of the returned candidate which is declared void and set aside but besides the disqualification of the returned candidate, the candidate himself or his agent or any other person, as the case may be, if found to have committed corrupt practice may be punished with imprisonment under Section 135A of the Act. It is for these reasons that the Court insists upon a strict proof of such allegation of corrupt practice and not to decide the case on preponderance or probabilities. The evidence has, therefore, to be judged having regard to these well-settled principles."
In Ram Singh v. Col. Ram Singh,2 it was held that clear and specific allegations with facts and figures regarding the corrupt practices indulged in by the respondent have not been alleged in the first part of the election petition itself. The allegations, however, have been detailed in the statement of particulars submitted by the appellants, who were certainly entitled to do so but the court should have expected some definitive and specific allegations regarding the nature of the fraud or the corrupt practices committed by the respondent as briefly as possible in the main part of the petition itself. Therefore, this is doubtless a relevant factor in judging the truth of the particulars mentioned in the statement more particularly when the onus of proving the corrupt practice lies entirely on the election petitioner who must demonstrably prove the same.
The Apex Court in Razik Ram v. J.S. Chauhan,3 held that, allegation of corrupt practice is quasi-criminal in nature, or is substantially akin to criminal charges because it not only vitiates the election but also disqualifies the person concerned from taking part in it for a considerably long time, or may extinguish the men's public life. So a grave and heavy onus rests on the accuser to establish it by clear, cogent and reliable evidence beyond reasonable doubt. It cannot be established by a mere balance of probabilities.
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1. AIR 1971 SC 382.
2. MANU/SC/1098/1996 : (1996) 2 SCC 743.
3. MANU/SC/0284/1975 : AIR 1975 SC 667.
Meaning of word `his' used in Section 123(3) of the Representation of the People Act, 1951.
Section 123(3) of the 1951-Act defines the corrupt practice on the ground of appeal to religion, etc. as follows:
The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purpose of this clause.
In this above-mentioned section the word 'his' is very significant. In Dr. Ramesh Yashwant Prabhoo v. P.K. Kunte,1 the Supreme Court observed that:
There can be no doubt that the word 'his' used in sub-section (3) must have significance and it cannot be ignored or equated with the word 'any' to bring within the net of sub-section (3) any appeal in which there is any reference to religion. The religion forming the basis of the appeal to vote or refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from the plain language of sub-section (3) and this is the only manner in which the word 'his', used therein can be construed. The expressions 'the appeal... to vote or refrain from voting for any person on the ground of his religion, ... for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate lead clearly to this conclusion, When the appeal is to vote on the ground of 'his' religion for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of the religion of the candidate for whom votes are solicited. On the other hand when the appeal is to refrain from voting for any person on the ground of 'his' religion for prejudicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially affected. It is thus clear that for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought, and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The first is a positive appeal and the second a negative appeal. There is no ambiguity in sub-section (3) and it clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under sub-section (3).
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1. MANU/SC/0982/1996 : (1996) 1 SCC 130.
On answering the question "whether the restriction imposed in
Section 123(3) of the Act is violative of the fundamental right of speech and expression guaranteed under Article 19(1)(a) or not? The Supreme Court in Dr. Ramesh Y. Prabhoo v. Prabhakar K. Kunte, held that, the restriction imposed in Section 123(3) is in the interest of 'decency' in a secular polity and was, thus, a reasonable restriction within the meaning of Article 19(2) and not violative of Article 19(1)(a)".
In Kultar Singh v. Mukhtiar Singh,1 following observations were made:
"It is well-known that there are several parties in this country which subscribe to different political and economic ideologies, but the membership of them is either confined to, or predominantly held by, members of particular communities or religions. So long as law does not prohibit the formation of such parties and in fact recognises them for the purpose of election and parliamentary life, it would be necessary to remember that an appeal made by candidates of such parties for votes may, if successful, lead to their election and in an indirect way, may conceivably be influenced by consideration of religion, race, caste, community or language. This infirmity cannot perhaps be avoided so long as parties are allowed to function and are recognised though their composition may be predominantly based on membership of particular communities or religions. That is why we think in considering the question as to whether a particular appeal made by a candidate falls within the mischief of Section 123 (3), courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable construction."
The Supreme Court in Shaligram Hiralal Chandak v. Govindrao Ratanlal,2 found that:
It is also admitted that even as a result of this pamphlet nothing happened. Not one person raised his finger either against or against any other member of his community. It is true, as was pointed out that such a result need not follow. But the fact that such a result did not follow may be a circumstance which may be considered to show whether or not the propaganda alleged to be made by the pamphlet had the tendency which is claimed it had and it is to that extent only that it may be regarded as relevant. It is also true that even an attempt to create enmity between communities is sufficient. But this is not a case of an attempted promotion of an enmity between any two communities. Here it is said that in fact the pamphlet was distributed and even so it was completely innocuous. The inference, therefore, that the pamphlet did not have a tendency to create enmity or hatred between the Mohammedans and Hindus is fortified.
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1. MANU/SC/0180/1964 : AIR 1965 SC 141.
2. 1965 Bom LR 702.
But, it was held by the Supreme Court in Dr. D.R. Deshmukh v. K.K.N. Kadam,1 that "the poster containing an appeal to vote for the appellant to teach the Muslims a lesson cannot be justified in any manner even by giving reasonable latitude in election speeches."
On the question whether an appeal in the name of 'Panth' amounts to appeal on the ground of religion, the Supreme Court in Kultar Singh v. Mukhtiar Singh,2 found that the word 'Panth' is one of Sanskrit origin and etymologically it means the path or the way, but it has come to indicate the Sikh religion because it has been used titled Sikhs to denote their religion and their denomination as the followers of that Panth in that context, the Panth may mean the Sikh religion and the followers of the Panth would be the persons who follow the path prescribed by the Sikh Gurus and, as such, would signify the Sikh community and the glory or prestige of the Panth may mean the glory or prestige of the Sikh religion. But in that very case, the Supreme Court examined the contents of a certain poster, printed on behalf of some persons living in Singapore, Malaya and South-East Asia, containing an appeal to Sikh voters to vote for the representatives of the Akali Dal to preserve the honour of the Panth so as to reach the final goal of Punjabi Suba. On reading that poster as a whole, the Supreme Court held that the word 'Panth', as used in that poster and in the context of the appeal made therein, did not mean the Sikh religion. The Apex Court did not accept the contention that by distributing that poster the returned candidate had appealed to the voters to vote for him because of his religion.
'Hindutva' or 'Hinduism' in election speeches has been very sensitive issue, which came up for intense scrutiny by the Supreme Court from time to time. On the question, whether an appeal to 'Hindutva' or 'Hinduism' in election speeches amounts to appeal on the ground of religion, the Supreme Court in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte,3 observed that no precise meaning can be ascribed to the terms 'Hindu', 'Hindutva' and 'Hindusim'; and no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism. The word 'Hindutva' is used and understood as a synonym of 'Indianisation', i.e., development of uniform culture by obliterating the differences between all the cultures co-existing in the country. The words 'Hinduism' or 'Hindutva' are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of the people of India, depicting the way of life of the Indian people. Unless the context of speech indicates a contrary meaning or use, in the abstract the terms 'Hinduism' or 'Hindutva' cannot be confined merely to describe persons
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1. MANU/SC/0101/1996 : AIR 1996 SC 391 (400-401).
2. 40 ELR 390.
3. MANU/SC/0982/1996 : (1996) 1 SCC 130.
racticing the Hindu religion as a faith and cannot be considered per se as depicting hostility, enmity or intolerance towards other religious faiths or professing communalism. Misuse of these expressions to promote communalism cannot alter the true meaning of these terms. The mischief resulting from the misuse of the terms by anyone in his speech has to be checked and not its permissible use. Fundamentalism of any colour or kind must be curbed with a heavy hand to preserve and promote the secular creed of the nation. Any misuse of these terms must, therefore, be dealt with strictly.
It was further observed by the Apex Court in this case that it is a fallacy and an error of law to proceed on the assumption that any reference to Hindutva or Hinduism in a speech makes it automatically a speech based on the Hindu religion, as opposed to the other religions, or that the use of the words 'Hindutva' or 'Hinduism' per se depicts an attitude hostile to all persons practicing any religion other than the Hindu religion. It is the kind of use made of these words and the meaning sought to be conveyed in the speech which has to be seen and unless such a construction leads to the conclusion that these words were used to appeal for votes for a Hindu candidate on the ground that he is a Hindu or not to vote for a candidate because he is not a Hindu, the mere fact that these words are used in the speech would not bring it within the prohibition of sub-section (3) or (3A) of Section 123. It may well be, that these words are used in a speech to promote secularism or to emphasise the way of life of the Indian people and the Indian culture or ethos, or to criticise the policy of any political party as discriminatory or intolerant. Whether a particular speech in which reference is made to Hindutva and/or Hinduism falls within the prohibition under sub-section (3) or (3A) of Section 123 is, therefore, a question of fact in each case.
The Apex Court held that the speeches made by Shri Bal Thackeray, leader of the Shiv Sena, wherein he appealed to the Hindu voters to vote for the candidate of his party because he was a Hindu, and wherein he also made some derogatory references to Muslims, amounted to corrupt practice under Section 123(3).
Discuss the principles of law laid down by the Supreme Court regarding `religious symbols'
In Ramanbhai A. Patel v. Dabhi A. Fulsinhji,1 the fact was, an elected candidate of the Swatantra Party used the election symbol 'Star' which was described as 'Dhruva tara (Star)'
Issue:
Whether the symbol used by the said candidate was an appeal to a religious symbol?
The Supreme Court observed that it is impossible to say that any particular object, bird or animal could be regarded as a religious symbol of the Hindu religion. The basic concept of Hindu religion is that the supreme being is in every inanimate object-plant, creature or person-that is to say, in the entire creation and that the entire creation is within
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1. MANU/SC/0319/1964 : AIR 1965 SC 669.
the supreme being and, if God or divinity is the reality or the substance of everything that exists, it would not be possible to say that any particular object is a symbol of the Hindu religion. Various deities in the Hindu pantheon are associated with some specific objects, birds or animals; for example, Lord Shiva is associated with a trident and a coiled cobra around his neck, Lord Vishnu is associated with the cobra 'Shesha' on which he reclines as upon a bed, Goddess Lakshmi is associated with lotus upon which she stands and so on. It does not mean that a person using a lotus or a cobra or a trident as his election symbol will be appealing to the religious sentiments of the people.
It was further observed by the Apex Court that a reference to prophets or religions or to deities venerated in a religion or to their qualities and deeds does not necessarily amount to an appeal to the religious sentiments of the electorate. Something more has to be shown for this purpose. If, for instance, the illiterate, the orthodox or the fanatical electors are told that their religion would be in danger or they will suffer miseries or calamities unless they cast their vote for a particular candidate, that would be quite clearly an appeal to the religious sentiment of the people. Similarly, if they are told that the wrath of God or of a deity will visit them if they do not exercise their franchise in a particular way, or if they are told that they will receive the blessings of God or a deity if they vote in a particular way, that would be an appeal to the religious sentiments. Similarly, if they are told that they should cast their vote for a particular candidate whose election symbol is associated with a particular religion just as the Cross is with Christianity, that will be using a religious symbol for obtaining votes. But where, as in the case of the Hindu religion, it is not possible to associate a particular symbol with religion, the use of a symbol even when it is associated with some deity, cannot, without something more, be regarded as a corrupt practice within the meaning of Section 123(3) of the Representation of the People Act, 1951. For instance, a particular object or a plant, a bird or an animal associated with a deity is used in such a way as to show that votes are being solicited in the name of that deity or as would indicate that the displeasure of that deity be incurred if a voter does not react favourably to that appeal, it may be possible to say that this amounts to making an appeal in the name of religion. But the symbol standing by itself cannot be regarded as an appeal in the name of religion or religious symbol.
The Supreme Court held that 'Dhruva star' has no religious significance. Dhruva is regarded as a great devotee of Lord Vishnu and held in reverence by Hindus, but he is not regarded as a deity or a Godhead and that the worship of mortals is so common, at least in our country, that no one can seriously attach religious significance to it. The five qualities which are generally associated with Dhurva are noble qualities but they have no significance peculiar to Hindu religion and in no way different from that to persons professing other religions or systems of belief. Accordingly, the 'Dhurva star' was not regarded as a religious symbol.
Likewise in Indira Nehru Gandhi v. Raj Narain1, where 'Cow and Calf' as an election symbol allotted to the Congress party by the Election Commission in 1971. The Supreme Court held that, though cow is an object of veneration by the Hindus, it cannot be regarded as a religious symbol.
Further, in Jagdev Singh Sidhanti v. Pratap Singh Daulta,2 the Supreme Court held that, the expression 'Om' is respected by the Hindus generally and has a special significance in the Hindu scriptures. It is a sacred syllable used in invocations, at the commencement of prayers, at the beginning and at the end of the Vedic recitation, and as a respectful salutation, and a subject of many mystical speculations. But the attribute of spiritual significance will not necessarily impart to its use, on a flag, the character of a religious symbol within the meaning of Section 123(3) and that the flag on which the word 'Om' was printed could not be called a religious symbol.
Appeal on the ground of caste or community in the election constitutes corrupt practices. Discuss
In Chandra Kanta Goyal v. S.S.J.S. Kohli,3 it was held by the Apex Court that any speech made prior to the date on which he became a candidate at the election cannot form the basis of a corrupt practice by any candidate at that election since any act prior to the date of candidature cannot be attributed to him as a candidate at the election.
Similarly, it was held by the Supreme Court in Ramakant Mayaker v. Caline Dr. Sidres,4 where corrupt practice alleged to be committed through speeches, prior to the date returned candidate filed his candidature for election, cannot form basis for alleged corrupt practice.
Further, in Rabin Khan v. Khurshid Ahmed,5 the Apex Court held that, what is appeal to religion depends on time and circumstances, the ethos of a community, the bearing of the deviation on the cardinal tenets and other variables. To confound communal passion and crude bigotry with religion is to sanctify in law what is irreligion in fact.
Does appeal on the ground of language in the election constitute corrupt practice?
The Apex Court in A.H. Mir v. S. Huda,6 observed that:
"Mere reference to one's tribe, ancestry or genetic commingling may not be tainted with the legal vice of religious or communal appeal, exceptional situations apart. It may well be that a strong secularist candidate may plead with the electorate to be non-communal and, therefore, ask for their votes on the basis that he was an inter-caste or inter-racial or inter-religious product and as such a symbol of communal unity. An appeal by a Muslim candidate in tribal areas of Assam that his
_____________
1. MANU/SC/0304/1975 : AIR 1975 SC 2299.
2. MANU/SC/0178/1964 : AIR 1965 SC 183.
3. MANU/SC/0228/1996 : AIR 1996 SC 861.
4. MANU/SC/0219/1996 : AIR 1996 SC 826.
5. (1975) 1 SCR 643.
6. MANU/SC/0256/1974 : AIR 1975 SC 1612.
mother was a tribal Hindu and that he personifies Hindu-Muslim interplay does not cross the line of corrupt practice. Further, calling the rival candidate a revolutionary communist or claiming to be an Assamese or Bengali is also not necessarily a communal appeal, though in certain circumstances it might be."
The Supreme Court in J.K. Choudhury v. Birendra Chandra Dutta,1 held that, to say that the activities of a candidate run counter to the interest of his community is not the same thing as appealing to vote or refrain from voting on the ground of his caste or community or religion. In this case, the candidate had opposed the proposal mooted by some members of the Tripura Legislative Assembly for the inclusion of certain areas of Tripura as scheduled tribal areas under the Fifth Schedule to the Constitution, stating that the proposal if carried into effect would create a situation critical for the Bengalees. It was not considered as a corrupt practice on the ground of caste or community.
The Supreme Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta,2 observed and held that the provision relating to corrupt practice on the ground of language must be read in the light of the fundamental right to conserve language guaranteed under Article 29(l), for ascertaining the true meaning of the corrupt practice, the area of the fundamental right of citizen must be steadily kept in view and that the above provision cannot be so read as trespassing upon that fundamental right. Right to conserve language of the citizens includes the right to agitate for the protection of the language. Political agitation for the conservation of language of a section of the citizens cannot, therefore, be regarded as a corrupt practice within the meaning of Section 123(3) of the 1951-Act. The said corrupt practice is committed when an appeal is made either to vote or refrain from voting on the ground of the candidate's language. It is the appeal to the electorate on a ground personal to the candidate relating to his language which attracts Section 123(3). Therefore, it is only when the electors are asked to vote or not to vote because of the particular language of the candidate that a corrupt practice may be deemed to be committed. Where for the conservation of language of the electorate appeals are made and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice.
Critically analyse the provision inserted under Section 123(3A) of the R.P. Act, 1951?
What is the consequence of publication of false statement during the election?
With the Representation of the People (Amendment) Act, 1961, a new corrupt practice was inserted in the 1951-Act as Section 123(3A), which reads:
The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the
___________
1. 42 ELR 66.
2. MANU/SC/0178/1964 : AIR 1965 SC 183
furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
The Supreme Court in Dr. Ramesh Y. Prabhoo v. Prabhakar K. Kunte,1 explained the nature, scope and object of the provisions of Section 123(3A) as follows:
We would now consider the meaning of sub-section 3A of Section 123. This sub-section also was inserted along with the substituted
sub-section (3) by Act 40 of 1961 w.e.f. 20-9-1961. The meaning of this sub-section is not much in controversy. Sub-section (3A) is similar to Section 153A of the Indian Penal Code. In sub-section (3A), the expression used is 'the promotion of, or attempts to promote, feelings of enmity or hatred' as against the expression 'Whoever... promotes or attempts to promote... disharmony or feelings of enmity, hatred or ill will...' in Section 153A, IPC. The expression 'feelings of enmity or hatred' is common in both the provisions but the additional words in
Section 153A, IPC are 'disharmony... or ill will'. The difference in the plain language of the two provisions indicates that mere promotion of disharmony or ill will between different groups of people is an offence under Section 153A, IPC while under sub-section (3A) of Section 123 of the R.P. Act, it is only the promotion of or attempt to promote feelings of enmity or hatred, which are stronger words, that is forbidden in the election campaign.
The provision is made with the object of curbing the tendency to promote or attempt to promote communal, linguistic or any other factional enmity or hatred to prevent the divisive tendencies, The provision in the IPC as well as in the R.P. Act for this purpose was made by amendment at the same time. The amendment in the R.P. Act followed amendments made in the Indian Penal Code to this effect in a bid to curb any tendency to resort to divisive means to achieve success at the polls on the ground of religion or narrow communal or linguistic affiliations. Any such attempt during the election is viewed with disfavour under the law and is made corrupt practice under sub-section 3A of Section 123.
...in sub-section (3A), the element of prejudicial effect on public order is implicit. Such divisive tendencies promoting enmity or hatred between different classes of citizens of India tend to create public unrest and disturb public order. This is a logical inference to draw on proof of the constituent parts of sub-section (3A). The meaning of sub-section (3A) is not seriously disputed between the parties and, therefore, it does not require any further discussion. However, whether the act complained of falls within the net of sub-section (3A) is a question of fact in each case to be decided on the basis of the evidence led to prove the alleged act.
Further, the Apex Court held that, the provisions of Section 123(3A) comes under the reasonable restriction in the interest of 'decency' within the meaning of Article 19(2).
_________________
1. MANU/SC/0982/1996 : (1996) 1 SCC 130.
Indian law does not permit false statement against any candidate in connection with an election. Section 171G of the Indian Penal Code reads:
Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which 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.
Again, Section 123(4) of the Representation of the People Act, 1951, defines the corrupt practice as follows:
The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.
What are the ingredients to be satisfied to invoke Section 123(4) of the R.P. Act, 1951?
In G.Y. Kankarao v. E.V. alias B.V. Patel,1 the Supreme Court observed that, even if the meaning of the word 'fact' be wider to include opinion about another person and apprehensions about his future conduct, it cannot be so construed in the context of the provisions of Section 123(4). A 'statement of fact' can be proved to be 'false' only if it relates to an event which has happened and not to a hypothetical future possibility. Similarly, the belief of the maker about its falsity or the lack of belief in its truth relates to an existing fact and not to a hypothetical future apprehension howsoever honestly one may believe in its likelihood. It is clear that any statement made which is a conjecture of a likelihood in future, would not come within the ambit of the expression 'statement of fact' used in Section 123(4). This is also supported by the fact that another requirement of Section 123(4) is that the statement of fact made should be 'reasonably calculated to prejudice the prospects of that candidate's election'. This further requirement cannot be satisfied by merely stating a likely apprehension for the future and if the event does not happen, this requirement cannot be tested. It is a different matter if the statement amounts to an opinion relating to the personal character or conduct of any candidate which is based on existing or past acts of the candidate. In other words, if the statement made is that a candidate is a 'murderer', that would imply that he had committed a murder and that amounts to a 'statement of fact, for the purpose of
Section 123(4). This view finds support from the meaning of 'fact' in the realm of jurisprudence.
In order to explain object, nature and scope of the provisions of
Section 123(4), the Supreme Court in Dr. Jagjit Singh v. Giani K. Singh,2 observed that:
_____________
1. MANU/SC/0599/1994 : AIR 1994 SC 678.
2. MANU/SC/0394/1965 : AIR 1966 SC 773.
The policy underlying the provisions of Section 123(4) is that in the matter of elections, the public and political character of a candidate is open to scrutiny and can be severely criticised by his opponents, but a private or personal character is not so. In order that the elections in a democratic country should be freely and fearlessly conducted, considerable latitude has to be given to the competing candidates to criticise the political and socio-economic philosophy of their opponents or their antecedents and character as public men. That is why even false statements as to the public character of candidates are not brought within the mischief of Section 123(4), because the Legislature thought that in the heat of election it may be permissible for competing parties and candidates to make statements in relation to the public character of their opponents, and even if some of the statements are false, they would not amount to corrupt practice.
Again, it was observed by the Supreme Court in Sheopal Singh v. Ram Pratap,1 that:
"An election is the expression of popular will and that it should be so conducted that the popular will shall be reflected on the basis of the policy of the party which the candidate represents and on his merits. That object cannot be achieved unless freedom of speech is assured at the election and the merits and demerits of a candidate, personal as well as political, are prominently brought to the notice of the voters in the constituency. At the same time, it shall not be allowed to degenerate into a vilification campaign aimed at bringing down the personal character or conduct of the candidate without any basis whatsoever. Section 123(4) is designed to achieve this dual purpose, namely, freedom of speech and prevention of malicious attack on personal character or conduct of rivals. The purity of an election is sought to be maintained without affecting the freedom of expression."
Further, in Inder Lal v. Lal Singh,2 the Apex Court explained and observed that in order that the elections should be free, it is necessary that the electorate should be educated on political issues in a fearless manner and so the Legislature thought that full and ample scope should be left for free and fearless criticism by candidates against the public and political character of their opponents. But the Legislature also thought, at the same time, that the vilification of private or personal character of the candidate should not be permitted in election campaigns. Circulation of false statement about the personal or private character of the candidate during the election period is likely to work against the above freedom, inasmuch as the effect created by such false statements may not be met by denials in proper time and it may affect the voting of the electors. It is for the protection of the constituency against the acts which would be fatal to the freedom of election that the statute provides for the
_____________
1. MANU/SC/0184/1964 : AIR 1965 SC 677.
2. MANU/SC/0243/1962 : AIR 1962 SC 1156.
inclusion of the circulation of false statements concerning the private character of a candidate amongst corrupt practices. Dissemination of false statements about the personal character of a candidate thus constitutes a corrupt practice, but not a statement in relation to the public or political character of a candidate, even if it is likely to prejudice the prospects of that candidate's election. This distinction is presumably based on the theory that the electorate being politically educated and mature, would not be deceived by a false criticism against the public or political character of any candidate. The public and political character of a candidate is open to public view and public criticism and, even if any false statements are made about the political views of a candidate or his public conduct or character, the electorate would be able to judge the allegations on the merits and may not be misled by any false allegation in that behalf. It is on this theory that false statements of fact affecting the public or political character of a candidate are not brought within the mischief of Section 123(4).
What do you mean by word `Calculated' used in Section 123(4) of the R.P. Act?
The Supreme Court in Subhash Desai v. Sharad J. Rao,1 felt that, in order to establish corrupt practice under Section 123(4) following ingredients have to be satisfied:
(i) it should be a statement of fact;
(ii) it should be false;
(iii) the person making it either believes it to be false or does not believe it to be true;
(iv) it should be in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal of any candidate; and
(v) it should be a statement reasonably calculated to prejudice the prospects of that candidate's election.
The Supreme Court in Sheopal Singh v. Ram Pratap,2 observed that the word 'calculated' means designed; it denotes more than mere likelihood and imports a design to effect voters. It connotes a subjective element, but the actual effect of the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect. The emphasis is on the calculated effect, not on the actual result, though the latter proves the former.
Further the Apex Court observed in MJ Zakhana Sait v. T.M. Mohammed,3 that all that Section 123(4) required was that the person publishing the complaining words must have intended and reasonably calculated to affect the prospects of
______________
1. MANU/SC/0473/1994 : AIR 1994 SC 2277.
2. MANU/SC/0184/1964 : AIR 1965 SC 677.
3. MANU/SC/0465/1990 : (1990) 3 SCC 396.
the complaining candidate in the election. If the complaining words have been used in the background of some special facts or circumstances, those words cannot be held to be reasonably calculated to prejudice the prospects of election of the complainant in the absence of the knowledge of those special facts on the part of the electorate. Once, however, it is proved by laying the foundation of the facts that the words in question were, by virtue of the knowledge of the special facts, likely to be construed by the electorate as referring to the personal character or conduct of the complaining candidate, it may not further be necessary to prove that in fact the electorate had understood them to be so.
Hiring or procuring of vehicles for the conveyance of voters constitutes corrupt practice
Do you agree with the statement
The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or for the free conveyance of any elector other than the candidate himself, the members of his family or his agent to or from any polling station provided under Section 25 or a place fixed under sub-section (1) of Section 29 for the poll:
Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:
Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
Explanation.-In this clause, the expression 'vehicle' means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.
Further, under Section 133 of the 1951-Act also free conveyance of voters is an offence. This section reads:
Penalty for illegal hiring or procuring of conveyance at elections.-If any person is guilty of any such corrupt practice as is specified in Clause (5) of Section 123 at or in connection with an election, he shall be punishable with imprisonment which may extend to three months and with fine.
The Supreme Court in Rizak Ram v. J.S. Chouhan,1 analysed and observed that:
On analysis, Clause (5) of Section 123 falls into two parts. The requirements of the first part are: (i) the hiring or procuring whether on
_______________
1. MANU/SC/0284/1975 : AIR 1975 SC 667.
payment or otherwise, of any vehicle or vessel for the free conveyance of voters, (ii) such hiring or procuring must be by a candidate or his election agent or by any other person with the consent of a candidate or of his election agent. The second part envisages the 'use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family or his election agent) to or from any polling station.' Two parts are connected by the conjunction 'or' which is capable of two constructions. In one sense it is a particle coordinating the two parts of the clause and creating an alternative between them. In the other sense-which is akin to the sense of 'and'-it can be construed as conjoining and combining the first part of the clause with the second. The latter construction appears to comport better with the aim and object of amendment of 1966. In this connection, it is noteworthy that even before the amendment, this Court in Balwan Singh v. Lakshmi Narain,1 held that in considering whether a corrupt practice described in Section 123(5) is committed, conveying of electors cannot be dissociated from the hiring of a vehicle. Even if the word 'or' is understood as a coordinating conjunction introducing alternatives, then also a petitioner in order to succeed on the ground of a corrupt practice under the second part of the clause, must prove in addition to the use of the vehicle or vessel for the free conveyance of any elector to or from any polling station, the hiring or procuring of that vehicle or vessel. This is so because the word 'such' in the phrase introduced by the 1966 amendment, expressly imports these elements of the first into the second part of the clause.
Similarly, in Dadasaheb Dattatraya Pawar v. Pandurang Rao Jagtap,2 the Supreme Court analysed that it was necessary to prove:
(i) that any vehicle or vessel was hired or procured, whether on payment or otherwise, by the candidate or by his election agent or by any other person with the consent of the candidate or of his election agent;
(ii) that it was used for the conveyance of the electors to or from any polling station; and
(iii) that such conveyance was free of cost to the electors.
Failure to substantiate any of these ingredients leads to the collapse of the whole charge under Section 123(5).
Discuss the different provisions with respect to `Election expenditure'
Section 123(6) of the 1951-Act makes the 'the incurring or authorizing of expenditure in contravention of Section 77' a corrupt practice.
Section 77(1) says, "Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election
_____________
1. MANU/SC/0192/1960 : AIR 1960 SC 770.
2. MANU/SC/0418/1978 : AIR 1978 SC 351.
agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive."
Hence, Section 77(1) makes it mandatory for every candidate to keep a separate and correct account.
Section 72(2) reads "The account shall contain such particulars, as may be prescribed."
Whereas, Section 77(3) restricts that "The total of the said expenditure shall not exceed such amount as may be prescribed."
Further, Rule 90 of the Conduct of Election Rules, 1961, provides different limits of election expenditure for parliamentary and assembly constituencies in different States and Union Territories.
Besides, Section 171-I of the Indian Penal Code provides:
Failure to keep election accounts-Whoever being required by any law for the time being in force or any rule having the force of law to keep accounts of expenses incurred at or in connection with an election fails to keep such accounts shall be punished with fine which may extend to five hundred rupees.
Critically analyse the scope and object of Section 123(6) of the R.P. Act?
The Supreme Court in Shri Krishan v. Sat Narain1 observed that what is referred to in Section 123(6) as a corrupt practice is only the incurring or authorising of election expenditure in excess of the limit prescribed under Section 77(3), and not the failure to maintain an account under Section 77(1) or the failure to maintain an account containing the prescribed particulars under Section 77(2).
Recently in L.R. Shrivaramagowda v. T.M. Chandrashekar,2 the Supreme Court observed that the language of that section is so clear that the corrupt practice defined therein can relate only to Section 77(3), i.e., the incurring or authorising of expenditure in excess of the amount prescribed, and that it cannot by any stretch of imagination be said that non-compliance with Sections 77(1) and 77(2) would also fall within the scope of Section 123(6).
Further, in Magraj Patodia v. R.K. Birla,3 the Apex Court found that it may be important to note that where an account has not been correctly and truly maintained under Section 77(1) or Section 77(2) and certain items of expenditure have been suppressed therefrom or undervalued therein, the provisions relating to corrupt practice under Section 123(6) will be attracted if, by adding the expenditure on such suppressed or undervalued items, the prescribed ceiling under Section 77(3) is shown to have been exceeded.
So far as the object behind the provisions of Section 123(6) is concerned, the Supreme Court in Kanwar Lal Gupta v. Amar Nath Chawla,4 found that the object
______________
1. 37 ELR 13.
2. MANU/SC/0756/1998 : (1999) 1 SCC 666.
3. MANU/SC/0322/1970 : AIR 1971 SC 1295.
4. MANU/SC/0277/1974 : AIR 1975 SC 308.
of the provision limiting the expenditure is two fold. In the first place, it should be open to any individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well financed it may be, and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength. It can hardly be disputed that the way elections are held in our country, money is bound to play an important part in the successful prosecution of an election campaign... If, therefore, one political party or individual has larger resources available to it than another individual or political party, the former would certainly, under the present system of conducting elections, have an advantage over the latter in the electoral process. The former would have a significantly greater opportunity for the propagation of its programme while the latter may not be able to make even an effective presentation of its views. The availability of disproportionately larger resources is also likely to lend itself to misuse or abuse for securing to the political part or individual possessed of such resources, undue advantage over other political parties or individuals... This would result in serious discrimination between one political party or individual and another on the basis of money power and that in its turn would mean that some voters are denied an 'equal' voice and some candidates are denied an 'equal chance'. It is elementary that each and every citizen has an inalienable right to full and effective participation in the political process of the Legislatures and this requires that each citizen should have equally effective voice in the election of members of the legislative.
The other objective of limiting expenditure is to eliminate, as far as possible, the influence of big money in the electoral process. If there were no limit on expenditure, political parties would go all out for collecting contributions and obviously the largest contributions would be from the rich and affluent who constitute but a fraction of the electorate. The pernicious influence of big money would then play a decisive role in controlling the democratic process in the country. This would inevitably lead to the worst form of political corruption that in its wake is bound to produce other vices at all levels.
What do you mean by expression `expenditure incurred or authorised'?
The Supreme Court in G.K. Bapat v. D.R. Meghe,1 held that, the expenditure incurred or authorized by the election agent of the returned candidate on "thanks giving" advertisements published after the declaration of result would not fall within the prohibitory of Section 77 and could not be taken into account while computing the expenses incurred by the returned candidate. ... The expenditure incurred after the declaration of the result of the election can possibly have no nexus with the purity of the electoral process. The expenditure incurred in that connection, therefore, cannot be said to be an expenditure 'authorised' or 'incurred' during the prohibited dates.
Further, in N.I. Singh v. L.C. Singh,2 it was held by the Supreme Court that, the candidate is now no longer accountable for any expenditure incurred either
_______________
1. MANU/SC/0455/1995 : AIR 1995 SC 2284.
2. MANU/SC/0281/1976 : AIR 1977 SC 682.
before the filing of his nomination paper or after the declaration of result, nor can such expenditure be taken into consideration in calculating the total expenses of the candidate with a view to judging whether his expenses exceeded the prescribed limit.
The Supreme Court in Kanwar Lal Gupta v. Amar Nath Chawla,1 held:
Now, if a candidate were to be subject to the limitation of the ceiling, but the political party sponsoring him or his friends and supporters were to be free to spend as much as they like in connection with his election, the object of imposing the ceiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated. The mischief sought to be remedied and the evil sought to be suppressed would enter the political arena with redoubled force and vitiate the political life of the country. The great democratic ideal of social, economic and political justice and equality of status and opportunity enshrined in the Preamble of our Constitution would remain merely a distant dream eluding our grasp. The Legislatures could never have intended that what the individual candidate cannot do, the political party sponsoring him or his friends and supporters should be free to do. That is why the Legislatures wisely interdicted not only the incurring but also the authorising of excessive expenditure by a candidate. When the political party sponsoring a candidate incurs expenditure in connection with his election, as distinguished from expenditure on general party propaganda, and the candidate knowingly takes advantage of it or participates in the programme of activity or fails to disavow the expenditure or consents to it or acquiesces in it, it would be reasonable to infer, save in special circumstances, that he impliedly authorised the political party to incur such expenditure and he cannot escape, the rigour of the ceiling by saying that he has not incurred the expenditure, but his political party has done so. A party candidate does not stand apart from his political party and if the political party does not want the candidate to incur the disqualification, it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must also hold good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate. This is the only reasonable interpretation of the provision which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying our election process and ridding it of the pernicious and baneful influence of big money.
On the validity of the provisions, the Supreme Court in Dr. P. Nalla Thampy Terah v. Union of India,2 held:
________________
1. MANU/SC/0277/1974 : AIR 1975 SC 308.
2. 78 ELR 98.
The argument really bears upon the interpretation of the section and the explanation, and not upon the validity of the explanation. We do not agree that the explanation denudes the section of its meaning and makes it purposeless. Section 77(1) deals with the expenditure 'incurred or authorised by' a candidate or his election agent, in connection with the election. It is obligatory to keep a separate and correct account of such expenditure. Explanation 1 deals with the expenditure incurred or authorised by a political party or any other association or body of persons or by an individual other than the candidate or his election agent. It is not obligatory for the candidate or his election agent to keep a separate and correct account of such expenditure. That is because of two reasons. In the first place, such expenditure is not incurred or authorised by the candidate or his election agent and therefore, in the very nature of things, they cannot keep an account of that expenditure. Secondly, the argument that expenditure of the kind described in Explanation 1 must be deemed to be incurred or authorised by the candidate or his election agent, is met by the provision in the Explanation that it shall not be so deemed. Section 77(1) on the one hand and Explanation 1 on the other, deal with two different situations wherefor, the latter cannot render the former meaningless.
Obtaining or procuring of assistance of government servants constitutes corrupt practice .
Initially, obtaining or procuring of assistance of government servants was major corrupt practice under Section 123(8) of 1951-Act, but after 1956, it became the part of Section 123(7) of the Act.
Do you agree with the statement?
The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:
(a) gazetted officers;
(b) stipendiary Judges and Magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers known as lambardas, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent whether by reason of the office held by the candidate or for any other reason, such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.
The above provisions of Section 123(7) have to be read with Explanation (2) and (3) to the main Section 123, which provide as follows:
Explanation (2)-For the purposes of Clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent of that candidate.
(3) For the purposes of Clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government including a person serving in connection with the administration of a Union territory or of a State Government shall be conclusive proof:
(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or, removal from service such person ceased to be in such service with effect from the said date.
Discuss the scope of Section 123(7) of the R.P. Act
What are the ingredients to invoke Section 123(7) of R.P. Act?
It was observed by the Supreme Court in Kishore Chandra Deo Bhanj v. Raghunath Mishra1:
The language of the provisions of Section 123(8) covered a wide field and referred to every person 'serving under the Government of India' or of a State, unless such person was declared to be one to whom the provisions of that section were not to apply, but after the amendment in 1956 the provisions of Section 123(7) were made narrower in scope. There is a distinction between a person 'serving under the government' and 'in the service of the government', because while one may serve under the government, one may not necessarily be in the service of the government. Under the latter expression, one not only serves under the government but is in the service of the government and it imports the relationship of master and servant.
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1. MANU/SC/0095/1958 : AIR 1959 SC 589.
In Hardwari Lal v. Kanwal Singh,1 the Apex Court analysed that the corrupt practice of seeking assistance of government servants for the furtherance of the prospects of a candidate's election can fall under four different heads, namely:
(a) obtaining of assistance;
(b) procuring of assistance;
(c) abetting to obtain or procure the assistance; and
(d) attempting to obtain or procure the assistance.
In Indira Nehru Gandhi v. Raj Narain,2 the Supreme Court observed that-
It is also very important to note that what the law prevents is the obtaining or procuring of assistance of a government servant. It does not prohibit any voluntary assistance rendered by a government servant without the candidate asking for it. A government servant has a 'private personality' too and help rendered voluntarily by a government servant without any attempt by the candidate to 'obtain' or 'procure' does not constitute the corrupt practice under Section 123(7), whatever be the impropriety of it for the government servant himself.
It was held by the Supreme Court in Raj Krushna Bose v. Binod Kanungo,3 that government servants are not prevented from nominating candidates in elections and the mere proposing of a nomination of a candidate by a government servant does not fall within the ambit of Section 123(7). But, if the procurement of government servants to propose a nomination is part of a plan to procure their assistance for the furtherance of the candidate's prospects in other ways than by vote, then Section 123(7) is attracted, for in that case, the plan, and its fulfilment must be viewed as a connected whole and the act of proposing a nomination which is innocent in itself cannot be separated from the rest, the Apex Court observed.
Again, in D.N. Kaul v. P.M. Shah,4 it was held that, it is the act of solicitation for the aid of the officials mentioned in Section 123(7), whether successful or not, which is penalised and not the mere fact that certain advantages flow quite naturally and conventionally from the occupation of an office without any solicitation, or the mere fact that some assistance is voluntarily given by someone to an election campaign. On the language of Section 123(7), a liability is not created by merely not rejecting aid voluntarily given. The candidate may not often be aware of the voluntarily given assistance so as to be able to reject it. The word 'obtain' in Section 123(7) has been used in the sense of the meaning which connotes purpose or effort behind the action of the candidate. The word has not been used in that section in the sense of a mere passive receipt of
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1. MANU/SC/0450/1971 : AIR 1972 SC 515.
2. MANU/SC/0304/1975 : AIR 1975 SC 2299.
3. MANU/SC/0096/1954 : AIR 1954 SC 202.
4. AIR 1962 J&K 28.
assistance, without the candidate being even conscious of the fact that the assistance has been rendered.
According to Section 171B Bribery Means.-
(1) Whoever-
(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or
(ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right;
commits the offence of bribery:
Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.
(2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification.
(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward.
According to Section 171C.-
(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 provisions of sub-section (1), whoever-
(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or
(b) induces or attempts to induce a 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 such candidate or voter, within the meaning of sub-section (1).
(3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section.
According to Section 171D.-Whoever at an election applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence or personation at an election:
[Provided that nothing this section shall apply to a person who has been authorised to vote as proxy for an elector under any law for the time being in force insofar as he votes as a proxy for such elector.]
According to Section 171E.-Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both:
Provided that bribery by treating shall be punished with fine only.
Explanation.-"Treating" means that form of bribery where the gratification consists in food, drink, entertainment, or provision.
According to Section 171F.-
Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.
According to Section 171G.-
Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a 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.
According to Section 171H.-
Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees:
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.
According to Section 171-I.-
Whoever being required by any law for the time being in force or any rule having the force of law to keep accounts of expenses incurred at or in connection with an election fails to keep such accounts shall be punished with fine which may extend to five hundred rupees.
(b)M said that if he was elected the first Hindu State will be established in Maharashtra.
Facts:-
The election petition challenged the election to the post of Sarpanch alleging certain illegalities in course of counting and rejection of some valid votes polled in favour of Respondent No. 2. The petitioner prayed for verification and recounting of the used ballot papers. Boothwise recounting of the used ballot papers also was prayed.
Issue:-
The averments made in the writ petition cannot be considered as pleadings so far as the election petition is concerned.
Decision:-
It is a fit case to arrive at the truth by recounting of ballot papers. The lower Courts were directed to call for the used ballot papers from the authority concerned and recount the same in accordance with the law.
Facts:-
The appellant was the Praja Socialist Party candidate with the election symbol "hut". The respondent was the Congress Party Candidate with the election symbol "Two bullocks with yoke on". The voting took place on February 20, 1967. The votes were counted on February 21 and February 22, 1967. The respondent having got a majority of about 20,000 votes was declared elected. The petitioner charged the respondent with the following corrupt practices.
At the time of the election the Congress Party, was in power and the Chief Minister Shri D.P. Mishra belonged to the Congress Party. In November 1966 the respondent was nominated by the Congress Party as its candidate for the Hoshangabad Parliamentary Constituency.
Shri D.P. Mishra as the agent of the respondent and with his consent made speeches at Narsinghpur and Piparia on February 16, 1967 announcing the benefit of exemption made on agriculturists holding land by one ordinance and that the respondent thus committed the corrupt practice under Section 123(1)(A) of the Representation of the People Act, 1951. The exemption was advocated by the Praja Socialist Party also and was welcomed by all parties. Nevertheless on the eve of the election the opposition parties started a campaign stating that the object of the exemption was to forfeit the land to the State and raised the slogan "Lagaan Maaf Zamin Saaf". The propaganda was refuted by the Congress Party. In an election speech on February 16, 1967 Shri D.P. Mishra raised the slogan "Lagaan Maaf Sab Party Saaf". His object was to tell the voters that the exemption should be granted and that the opposition parties should be routed out in the election.
Issue:-
Whether charges made against the respondent are enough to establish corrupt practices within the meaning of the Act.
Decision:-
The Supreme Court held that S.K. Dixit a member of the Congress Party published a pamphlet on or about February 7, 1967 refuting the false propaganda that the exemption was temporary and was granted with a view to forfeit the lands and urging the electors to vote for the Congress. On the materials on the record it is impossible to hold that the respondent committed the corrupt practice under Section 123(1)(A). The Ordinance was passed by the Government of Madhya Pradesh. As a result of the Ordinance a large number of agriculturists got exemption from land revenue. Such an exemption does not amount to a gift, offer or promise of any gratification within the meaning of Section 123(1)(A). Nor is it possible to say that the government was the agent of the respondent. It is true that the Congress Party was then in power. But the exemption was not given by the Congress Party. It was given by the Ordinance which was passed by the Government. Nor does the announcement of the declaration at the meeting held on February 16, 1967 or by the pamphlet carry the matter any further. On the materials on the record it is not possible to say that either Shri D.P. Mishra or Shri S.K. Dixit acted as the agent of the respondent.
Again the charge is that the respondent or his agent distributed dummy ballot papers with the respondent's name and his election symbol of "Two bullocks with yoke on" and, also the appellant's name without his election symbol printed thereon, that those papers conveyed to the voters the impression that the appellant had withdrawn his candidature, that the appellant and his agents on the eve of the election told the voters that the appellant had withdrawn his candidature and that the respondent thereby committed the corrupt practice under Section 123(4). The evidence shows that dummy ballot papers as mentioned above were printed and distributed on behalf of the respondent. Such dummy ballot papers were in contravention of the instructions issued by the Election Commission of India. The appellant's name should not have been printed in them. But it is impossible to say that the dummy ballot papers conveyed to the voters the impression that the appellant had withdrawn his candidature.
The appellant witnesses that on the eve of the election the respondent and his agents informed the voters that the appellant had withdrawn his candidature. The voters knew that there were two candidates in the field, viz., the appellant and the respondent. Even on the February 16, 1967 Shri D.P. Mishra stated that the appellant was contesting the election. The respondent carried on a vigorous election propaganda until February 18, 1967. If the respondent or his agent had informed the voters that the appellant had withdrawn his candidature it was not likely that such intensive propaganda would be carried on until that date. The charge is, therefore, not established.
It was, held that it could not be said that the returned candidate of the Congress Party committed the corrupt practice under Section 123(1)(A).
Facts:-
Krishna Gopal is an elector of the constituency who had worked for the furtherance of the prospects of the Congress candidate Shri Rameswar Dayal in the election. The candidature of Shri Krishna Kumar was sponsored by the Jan Sangh Party. The votes polled by the contesting candidates at the polling which took place on 22nd February, 1962, where Krishna Kumar of Jan Sangh got elected. The appeal is contested by the respondent Krishna Gopal who had filed the election petition to challenge Shri Krishna Kumar's election. Mainly it was alleged that Krishna Kumar had procured truck in which some electors were conveyed to Rangbari polling station at 2.00 p.m. by one Shankarlal, who was an agent of Krishna Kumar. Election Tribunal declared the election of Krishna Kumar void and held him guilty of the corrupt practice under Section 123(5) of the Act.
Issue:-
Whether the decision of the Tribunal declaring the election of Krishna Kumar void and holding him guilty of corrupt practice under
Section 123(5) of the Act was correct?
Decision:-
The Court observed that the question as the limits of the doctrine of agency in election matters and the exact scope and effect of the statutory definition of agent may require to be carefully considered by this court when they became necessary in a process. These are important questions bearing on the structure of elections run on party lines and have not been regulated with in this case. In the present case the finding arrived at by the Tribunal against the appellant in this behalf is based on clear evidence, which may properly form the basis of a positive finding of agency.
The observations by the Tribunal in its judgment that any person who acts in furtherance of the prospects of the candidate's election may be regarded to be an agent of the candidate is not correct. As we have already pointed out, expression 'agent' has been defined in the Explanation to Section 123 as including an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate. Any person acting in furtherance of the prospects of the candidate's election cannot thus be regarded as an agent of the candidate unless it is proved that corrupt practice committed by an agent unless it is further shown that the act was done with the consent of the returned candidate or that the result of the election was materially affected thereby. The Court also pointed out that it was not the case of the petitioner that the result of the election was materially affected by the corrupt practice. The difference in the votes polled by Shri Krishna Kumar and the next candidate polling the highest number of votes was more than 2000. Not more than 25 voters were transported to Rangbari polling station at 2.00 p.m. by the truck. Even if all these voters are excluded, the result is not materially affected.
In the result, the High Court held that the decision of the Tribunal declaring the election of Shri Krishna Kumar to be void and holding him guilty of the corrupt practice specified in Section 123(5) is not correct.
Facts:-
The appellant was elected to the Punjab Legislative Assembly from the Dharamkot Constituency and he defeated his nearest rival, the respondent, by a margin of nearly 8,000 votes. The appellant had stood for election on the Akali Dal ticket, while the respondent had been officially adopted by the Congress Party. After the election of the appellant was declared, the respondent filed an election petition alleging that the appellant's election was void inasmuch as for the purpose of securing votes, he had appealed to his religion and had thereby committed a corrupt practice. It appears that the election petitioner had also alleged that the appellant had appealed to his language and community, but with that part of the case we are no longer concerned in the present appeal, because the petition has not succeeded in that behalf. According to the respondent, the appellant had addressed seven election meetings held in different places and on different dates and at those meetings he and his supporters had made speeches asking the voters to vote for the appellant as he was the proper representative of the Sikh Panth, whereas the respondent represented the Hindu-ridden Party, and so, the appellant would be able to protect the Sikh religion and the Sikh language. The petition further alleged that at five of the seven election meetings organised by the appellant the printed posters had been distributed by the appellant and these posters contained an appeal to the voters to vote for the appellant on the ground of his religion.
The High Court agreed with the conclusion of the Tribunal and held that the poster contained an appeal to the voters to vote for the appellant on the ground of his religion, and so, by publishing and distributing it at his election meeting, the appellant has committed a corrupt practice under Section 123(3) of the Act.
Issue:-
Whether the conduct of the appellant is a corrupt practice within the meaning of Section 123(3) of the Act?
Decision:-
The Apex Court observed that, a corrupt practice under
Section 123(3) can be committed by a candidate by appealing to the voters to vote for him on the ground of his religion even though his rival candidate may belong to the same religion. If, for instance a Sikh candidate were to appeal to the voters to vote for him, because he was a Sikh and add that his rival candidate, though a Sikh name, was not true to the religious tenets of Sikhism or was a heretic and as such, outside the pale of the Sikh religion, that would amount to a corrupt practice under Section 123(3), and so the contention that Section 123(3) is inapplicable because both the appellant and the respondent are Sikhs cannot be accepted.
In considering the question as to whether a particular appeal made by a candidate falls within the mischief of Section 123(3), Courts should not be astute to read into the words used in the appeal anything more than can be attributed to them on its fair and reasonable construction.
The principles which have to be applied in construing such a document as an election poster are well-settled. The document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner. In reading such documents, it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one another, are all a part of the game; and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light. In doing so, however, it would be unreasonable to ignore the question as to what the effect of the said speech or pamphlet would be on the mind of the ordinary voter who attends such meetings and reads the pamphlets or hears the speeches.
In construing the impugned poster, the High Court does not appear to have taken into account this oral evidence. It is true that oral evidence would not be of any material assistance in construing the words in the pamphlet; but as we have just indicated, the word "Panth" used in six places in the pamphlet can be properly interpreted only to mean the Akali Dal Party and it is in that context that the statements made by the witnesses as to the name by which the Akali Dal Party is known in popular minds, may have some relevance.
It was held on a consideration of the entire pamphlet that it did not amount to a corrupt practice of appealing to voters on the ground of religion within the meaning of Section 123(3) of the Act. Though the word "Panth" by itself has come to indicate the "Sikh Religion" because it has been used by the Sikhs to denote their religion and their denomination as the followers of that Panth, in the context of the language used by the poster the word did not mean "Sikh Religion". The word "Panth" used in the six places in the poster could be properly interpreted to mean the Akali Dal Party. Therefore, the order of the High Court set aside.
Facts:-
The appellant Ghasi Ram was one of the candidates at the General Elections from the Julena Constituency of Haryana to the State Legislative Assembly. The respondents were other candidates. The election took place on February 19, 1967 and the results were declared two days later. The first respondent was declared elected having secured 9.000 and odd votes more than the appellant. The petition was based on certain corrupt practices of the answering respondent who was a Minister for Irrigation and Power in the Ministry of Shri Bhagwat Dayal Sharma till the result of the election. He was charged with having used his position as Minister in various ways to further his own election. The High Court on an examination of the evidence came to the conclusion that no corrupt practice was in fact proved against him and the election could not be said to be void. The corrupt practices charged against the answering respondent can be divided under three heads. The first is that he used certain discretionary funds to bribe the voters. The second is that he used his position to favour some of his villages with a view to securing support for his candidature and the last is that he exercised undue pressure upon two Patwaris to work for him, when they declined, he ordered their suspension.
Issue:-
Whether these acts of Dal Singh amount to corrupt practice?
Decision:-
The allegation is that Dal Singh made this distribution as a bargain for votes in several villages and this amounted to corrupt practice. The amount was distributed by him between December 8, 1966 and January 9, 1967. In most cases the money was paid after the poll but as promises were apparently made this makes no difference to the allegation of corrupt practice.
The law requires that a corrupt practice involving bribery must be fully established. The evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election. The proof required to establish a corrupt practice must be almost of the character required to establish a criminal charge.
An election petition challenged the election of the respondent, who was a Minister for irrigation and power till the result of election on ground of certain corrupt practices. The charges were that he used certain discretionary funds at his disposal to bribe the voters and that he used his position to favour some villages with a view to securing support for his candidature. By a Government resolution certain sums of money were placed at the disposal of the Ministers for distribution as discretionary grants and the money was required to be spent in three months' time. The grant of discretionary grants were part of the general scheme to better community development projects and to remove the immediate grievances of the public. There was evidence to prove that the respondent had promised certain discretionary grants to Gram Panchayats and public at large for community development in his own constituency and had actually distributed the money not among the voters directly but had given it to the panchayats concerned. But there was no evidence to prove that the respondent bargained directly or indirectly for votes.
It was held that in the circumstances of the case the acts of the respondent did not amount to corrupt practice.
Facts:-
Manohar Joshi was the candidate of the BJP-Shiv Sena alliance at that election while the original election petitioner Bhaurao Patil, was the candidate of the Congress (I) Party. Manohar Joshi secured the highest number of votes i.e., 47,737, while Bhaurao Patil secured 24,354 votes. Accordingly, Manohar Joshi was declared duly elected.
The election petitioner alleged the commission of corrupt practices under
sub-sections (3) and (3A) of Sections 123 of the R.P. Act and sought declaration of the election of Manohar Joshi to be void on the ground under Section 100(1)(b) of the R.P. Act. The corrupt practices alleged were, in substance, speeches
on 24-2-1990 at Shivaji Park by the returned candidate Manohar Joshi and leaders of the BJP-Shiv Sena alliance, namely. Bal Thackeray, Chhagan Bhujbal and Pramod Newalkar; and some audio and video cassettes played during the election campaign alleged to contain material constituting these corrupt practices.
Some of the offending statements were:
(1) To handle Congress (I) hoodlums the Shiv Sainiks may take law in their hands.
(2) To save 'Hindutva' vote for Siva Sena-BJP nominees.
(3) We must protect 'Hindutva' at all costs.
(4) Rajiv Gandhi speaking on 'Hindutva' is like a prostitute lecturing on fidelity etc.
The High Court held that the corrupt practices alleged have been proved. Consequently, the election petition has been allowed and the election of the returned candidate Manohar Joshi has been declared to be void on the ground under Section 100(1)(b) of the R.P. Act.
Issue:-
Whether High Court was right that holding these speeches amount to corrupt practices?
Decision:-
The Supreme Court observed that if the corrupt practice is committed in the interest of the returned candidate by any other person, even if he be an agent other than his election agent without the consent of the returned candidate or his election agent, the law provides for the returned candidate or his election agent, the law provides for the election to be declared void under Section 100(1)(d)(ii) provided it is also pleaded and proved that the result of the election of the returned candidate has been materially affected thereby.
The Apex Court felt that there is no doubt that the requisite consent of returned candidate or his election agent which is constitution part of the corrupt practices under sub-sections (3) and (3A) of Section 123, and an ingredient of the ground under Section 100(1)(b), has nowhere been pleaded in the election petition either in connection with the allegation based on the speeches by Bal Thackerey, Pramod Mahajan and any other leader or the display of video and audio cassettes in the constituency, when this is an essential requirement for raising a triable issue of corrupt practice to bind the appellant with the consequences of such a corrupt practice and to invalidate his election. In our opinion, this alone is sufficient to ignore the entire pleading in the election petition relating to speeches by Bal Thackeray, Pramod Mahajan and any other leader as well as the display of video and audio cassettes since none of those acts is attributed to the appellant or his election agent. For this reason, it is also not necessary to consider the specific portions alleged to form parts of speeches of Bal Thackeray and Pramod Mahajan.
The High Court failed to appreciate that the only allegation of corrupt practice in this election petition which raised a triable issue is as indicated above and rest of the general averments deficient in requisite pleadings of all the constituent parts of the corrupt practice did not constitute a pleading of the full cause of action and, therefore, had to be ignored and struck out in accordance with Order 6, Rule 16, C.P.C.
The Court held that, it is this erroneous impression of the High Court which had led to the serious errors committed during the trial for which the parties are equally to blame inasmuch as both sides contributed to the expression of the legitimate scope of the trial by introducing matters which have no relevance for the pleading and proof of the corrupt practices under sub-sections (3) and (3A) of Section 123 for the purpose of the ground under Section 100(1)(b) to invalidate the election, which is the true scope of this election petition.
Facts:-
The election was held on 13th December, 1987 and the result was declared on 14th December, 1987, at which Dr. Ramesh Yeshwant Prabhoo was declared to be duly elected. The charge of these corrupt practices is based on three public speeches delivered by Bal Thackeray; on 29-11-1987 at Parle,
on 9-12-1987 at Khar-Danda near Shankar Temple, and on 10-12-1987 at Jaltaran Maidan, Vile Parle (East). The public speech given on 9-12-1987 has been held to amount to the corrupt practice under sub-section (3) of Section 123, while public speeches delivered on 29-11-1987 and 10-12-1987 have been held to be corrupt practices under sub-sections (3) and (3A) of Section 123 of the Act.
Dr. Prabhoo was set up as candidate of the Shiv Sena which was then not a recognised political party for purposes of the Legislative Assembly election and, therefore, Dr. Prabhoo's candidature was shown as "Shiv Sena-Independent". Bal Thackeray is the top leader of Shiv Sena and he participated in the election campaign of Dr. Prabhoo as the main speaker in his capacity as the leader of Shiv Sena. The status of Bal Thackery as the top leader of Shiv Sena is not disputed. The speeches were:
(i) "We are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so."
(ii) "Garva say kaho (OM) hum Hindu hein."
(iii) "Hinduism will triumph in this election and we must become hon'ble recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with Chhagan Bhujbal who is already there. You will find Hindu temples underneath if all the mosques are dugout. Anybody who stands against the Hindus should be showed or worshipped with shoes. A candidate by name Prabhoo should be led to victory in the name of religion."
Issue:-
Whether these speeches of Bal Thackeray amount to corrupt practice within the meaning of the Act?
Decision:-
It was held by the High Court is that the three public speeches of Bal Thackeray in the election campaign of Dr. Prabhoo were all in very intemperate language and incendiary in nature which were appeals to the voters to vote for Dr. Prabhoo because of his religion, i.e., he being a Hindu, and the speeches also promoted or tended to promote enmity and hatred between different classes of the citizens of India on the ground of religion. The High Court also held the charge of the alleged corrupt practices proved against the returned candidate Dr. Prabhoo and Bal Thackeray. Accordingly, the election of the returned candidate has been declared to be void. On the ground contained in Section 100(1)(b) of the Act.
The Appellant has been found guilty of the corrupt practices prescribed by sub-sections (3) and (3A) of Section 123 of the Act at the election, in that he had and his agent Bal Thackeray with his consent appealed for votes on the ground of the returned candidate's religion and that they promoted or tended to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion and community.
The Supreme Court concluded that, "all the three speeches of Bal Thackeray amount to corrupt practice under sub-section (3), while the first speech is a corrupt practice also under sub-section (3A) of Section 123 of the R.P. Act. Since the appeal made to the voters in these speeches was to vote for Dr. Ramesh Prabhoo on the ground of his religion as a Hindu and the appeal was made with the consent of the candidate Dr. Ramesh Prabhoo, he is guilty of these corrupt practices. For the same reason Bal Thackeray also is guilty of these corrupt practices and, therefore, liable to be named in accordance with
Section 99 of the R.P. Act of which due compliance has been made in the present case.
We cannot help recording our distress at this kind of speeches given by a top leader of a political party. The lack of restraint in the language used and the derogatory terms used therein to refer to a group of people in an election speech is indeed to be condemned. The likely impact of such language used by a political leader is greater. It is, therefore, a greater need for the leaders to be more circumstance and careful in the kind, of language they use in the election campaign. This is essential not only for maintaining decency and propriety in the election campaign but for the preservation of the proper and time-honored values forming part of our cultural heritage and for a free and fair poll in a secular democracy. The offending speeches in the present case discarded the cherished values of our rich cultural heritage and tended to the fervent hope that our observation has some chastening effect in the future election campaigns.
Accordingly, both the appeals are dismissed."
Facts:-
The appellant and the respondents contested the election to Punjab Legislative Assembly held in May 1980 from Muksar Constituency. Polling was held on May 31, 1980 and the result was declared on June 1, 1980 in which the appellant secured 29,680 votes and respondent 3 secured 30,083 votes. The other candidates got only nominal votes. There was thus a difference of 403 votes in favour of respondent 3. Respondent 3 was declared elected. The election of respondent 3 was challenged by an election petition alleging that
respondent 3 had indulged in corrupt practice in the said election and as such his election was liable to be set aside for corrupt practice. Corrupt practice makes the election liable to be set aside under Section 100(1)(b) of the Representation of the People Act, 1951. The allegation against respondent 3 was that he, his agent and other person with his consent, has appealed to the voters of the constituency in the name of religion, namely Sikh religion for voting in his favour or to refrain from voting in favour of the appellant.
Issue:-
Whether respondent 3 was guilty of corrupt practice within the meaning of Section 123(3) of the 1951-Act?
Decision:-
The Supreme Court observed that, the paramount and basic purpose underlying Section 123(3) of the Act is the concept of secular democracy. Section 123(3) was enacted as to eliminate from electoral process, appeals to divisive factors such as religion, caste, etc. which give rise to irrational passions. Condemnation of electoral campaign on lines of religion, caste, etc., is necessary implicit in the language of Section 123(3) of the Act.
In order to determine whether certain activities come within the mischief of Section 123(3), regard must be had to the substance of the matter rather than to the mere form or phraseology. The inhibition of Section 123(3) should not be permitted to be circumvented indirectly or by subtle devices. The Court should attach importance to the effect and impact of the acts complained of and always keep in mind the paramount purpose of Section 123(3) namely to prevent religious influence from entering the electoral field. The nature and consequence of an act as may on its very fact but the same can be implied having regard to the language, the context, the status and position of the person making these statements, the appearance and known religion of the class of persons to whom the statement or act is directed.
Taking into account the totality of the evidence in the background of the fact that some communications from Akal Takht calling it Hukamnama or any other name were issued and the issues of editorials of Akali Times, which were mentioned by Shri Prakash Singh Badal as stated by the witness on behalf of the appellant and is not denied by Shri Prakash Singh Badal, we are of the opinion that in this case appeal in the name of religion was made by
respondent 3. Through some facts stated in the oral evidence about the meeting had not been stated in cross-examination the versions have a ring of truth in the background of other, we are of the opinion that the case of appeal to religion by respondent No. 3 has been proved in this case. This conclusion becomes in view of absence of any express denial by Shri Prakash Singh Badal and in the absence of any explanation for not calling him as witness on this point. Several decisions of this Court have laid down various tests to determine the standard of proof required to establish corrupt, practices. While insisting on standards of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the every laudable and sacrosanct object of the Act in maintaining purity of the electoral process.
The Court held that on this premise respondent No. 3 was guilty of corrupt practices as mentioned in sub-section (3) of Section 123 of the Act. In the result his election is set aside and the seat is declared vacant.
Facts:-
At the General Election to the Madhya Pradesh Legislative Assembly from the Khategaon Constituency, there were five contesting candidates. They were the appellant and respondent Nos. 2 to 5. The appellant received 9622 votes as against the second respondent who obtained 8030 votes. The other contesting candidate received fewer votes in comparison. The present election petition was filed, not by any of the defeated candidates, but by an elector on the ground of corrupt practice on the part of returned candidate and his agent. These corrupt practices consisted of oral speeches connected with the manifesto of the Jan Sangh relating to cow slaughter in India. During the course of the speech, it was alleged that the returned candidate, who belongs to the Jan Sangh and his election agent Ram Niwas Somani made speeches at 19 villages in which they referred to this election manifesto claimed that the Congress had not abolished cow slaughter in India and on the other hand was promoting it and that the Jan Sangh would stop cow slaughter. They added to these statements, which might have been two other statements, quite innocuous, namely, that, to vote for the Congress was to commit the sin of Go-hatya and that the Congress candidate Shrimati Manjulabai herself ate beef. There were other allegations regarding exhibition of posters which depicted the Congress as a butcher intent upon slaughtering a cow.
Issue:-
Whether these speeches were corrupt practice within the meaning of Section 123(2)(ii) of the R.P. Act, 1951?
Decision:-
The Supreme Court observed that there was a reference to cow slaughter and the campaign of the Jan Sangh used the no cow slaughter propaganda. It would be perfectly legitimate for any party to promise that if it came into power it would abolish cow slaughter. That is not the gravement to the charge. The gravement of the charge is that it was added that if the voters voted for the Congress candidate, they would be guilty of the sin of Go hatya and here the law of election steps in. Section 123(2)(ii) provides that if, it is an election of the undue influence that is to say any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with a consent of the candidate or his election agent with the free exercise of any electoral right when any such person, as is referred to therein, induces or attempts to induce a 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.
The question is whether in stating that if they voted for the Congress or a Congress candidate, they would be committing the sin of Go hatya, amounted to an attempt to induce the voters to believe that they would become or would be rendered an object of divine displeasure or spiritual censure. In our opinion a statement of this kind falls within folds of this provision of the section. It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. Kinkarji were beyond the permitted limits of canvassing and exhortation when he added to the legitimate manifesto of his party that by voting for the Congress or the Congress candidate, the voters would be objects of censure and divine displeasure, implicit in the speeches made. The case, therefore, falls clearly within Section 123(2)(ii) of the Representation of People Act, 1951.
The Court held that "there was a further statement that the Congress candidate Manjula Bai ate beef. Manjula Bai did not appear in the witness box to deny this. In fact she showed little interest in the election petition and is reported to have left the matter to the elector who filed this petition. No one on her behalf appeared to deny this fact. We do not express any opinion that any corrupt practice in relation to that statement was committed either in fact or in law." Appeal dismissed.
Facts:-
Dev Kanta Barooah appellant was declared elected in the General Elections to the Legislative Assembly of Assam in 1967, defeating the four rival candidates who are respondent Nos. 1 to 4 in this appeal. Respondent No. 1, Golok Chander Baruah, filed an election petition that false statements as to the personal character of Respondent No. 1 had been published with consent of the appellant thus constituting a corrupt practice under Section 123(4) of the Representation of the People Act, 1951.
The corrupt practice was alleged by Respondent No. 1 to have been committed by the appellant by publication of a leaflet with the caption "Why Golok Chandra Baruah was drived from the Congress?"
The High Court allowed the appeal and set aside the election of Dev Kanta Barooah on the ground mentioned above within the meaning of Section 123(4) of the Act.
Issue:-
Whether the High Court was right in setting aside the election of the appellant on the ground of corrupt practice having been committed within the meaning of Section 123(4) of the Act?
Decision:-
In the leaflet, the reason why the Congress did not give him nomination is given. It is stated that, in the 1942 movement, he helped the British and revolted against the country. The expression "revolted against the country" is a translation for the Assemese word Deshdrohita . It is true that the High Court has come to the finding of a fact that in 1942, respondent
No. 1 was in government service working as a Clerk and it was only later on, after 1943, that he actively participated in the business of his brothers of taking military contracts for the Britishers. The track of the evidence, however, shown that his brother had been carrying on the Military Contract business even earlier than 1942. Even for the latter period, respondent No. 1 tried to deny that he actually participated in the military contract business with his brothers; but, when cross-examined in detail and confronted with a power-of-attorney in his favour, he had to make admissions which clearly show that he was taking part in that business. It appears to be quite likely that, even before he actually resigned government service and joined the business of his brother, he may have been assisting them, so that the allegation that he helped the British in 1942 Movement by taking military contracts cannot be said to be a false statement; at best, there may be a slight error about the period during which he did that work. Again, the aspect that he was helping the British by taking military contracts relates to a reflection on his political conduct in siding with the British Government rather than joining the Congress which was carrying on a movement against the British for achieving independence of the country. It was his background that his activities were described by using the word "Deshdrohita" in this pamphlet. Whether it amounted to "Deshdrohita" or not may be a disputed question. Members of the Congress, who were carrying on the agitation against the British for achieving independence of the country, could very legitimately think that any one who helped the British at that time was guilty of "Deshdrohita" inasmuch as his activities were against the interest of our country. This expression was also, related to the political situation at that time. It cannot be said that this reflects on the personal character or conduct of respondent No. 1, as there is no imputation of any depravity or immorality.
This conduct of respondent No. 1 has been criticised. Admittedly, he was the Chairman of the Nowgong Municipality, and the principal part of this paragraph asks the voters to note some of the instances of injustice and chaos during his tenure of office. In Assamese, the two words which have been translated as "injustice" and "chaos" were "Durniti" and "Arajakata". The High Court took these words to mean "corruption" and "anarchism" as these are the English words used in the judgment of the High Court. It may, however, be noted that, in this part, it is not stated that respondent No. 1 himself was corrupt.
In the circumstances, the material contained in this leaflet does not require to be revised on the basis of this evidence. The publication of the leaflet cannot be held to constitute corrupt practice under Section 123(4) of the Act.
Facts:-
The appellant lost by about 1000 votes in Assembly election. The allegation of adoption of corrupt practice was that the respondent had obtained the assistance of Gazetted Officer of the State of Punjab. The respondent denied the allegations.
Issue:-
Value of Appreciation of Evidence by High Court/trial Court.
Decision:-
The appellate court should attach a great value to the appreciation of evidence by trial Court moreso when the trial Judge recording the findings of fact is the same who had recorded the evidence.
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