N. S. VARDACHARI v. G. VASANTHA PAI AND ANR. August 21, 1972 (K. S. HEGDE, A. N. GROVER AND D. G. PALEKAR, JJ,J Representation of the People. Act (43 di 1951), s. 123 (2) and ( 4 )~Expression of opinion that candidate not qua/;fied~It amounts to undue influence under s. 123 ( 2) or corrupt practice under s. 123 ( 4). Election
to Legislative Council from Graduates' constituency-If non-oolitic a/. Constitulion of India, 1950, Art, 171(3) (a) (b) and (c)-lf Candi· . C date should be member of electoral College.
Practice-Imposition of penal Costs. In 1967, the first respondent and S contested· for election for a seat in the Madras Legislative Council from the City Graduates' constituency, which fell vacant. 5 was declared elected and his election was challeng- ed by the :first respondent on the grounds, inter a/ia, that, (aj in an elec- lion from graduates' constituencies political parties were not competent to sponsor candidates, and S, having been sponsored by the Swatantra Party, was not qualified to be a candidate; arid (b) that S was guilty of corrupt practices under s. 123 (5) of the Representation of the People Act, 1951.
The High Court set aside the election of S on the second ground. On the first ground, while holding that there was no evidence that S was spousored by a political party, the High Court observed that election to the Legislative Council· from the Graduates' constituency was a non-party election and that political parties should not nominate any candidate for that election.
: 's Court, in appeal, confirmed the finding of the High Court that S was guilty of corrupt practices, but did not at all touch on the observations of the High Court. In 1970, the first and second respondents contested for election to the Legislative Council from the same constituency, which was a two member constituency, and they were both declared
elected. The first respondent objected to the candidature of the second respondent before the Returning Officer. on the grounds, (I) that the High Court had de- cided in the earlier election petition against S, that the constituency ·was a non·political one and that the second respondent, having been sponsor- ed by the Swatantra Party, any votes giv.en to hin1 would
amount to throwing away the votes: and (2) that the second respondent was not a grad'u:ite and hence, 'vas not qualified to be a candidate at the e'ection. The Returning Officer rejected the objections, cut the first respondent con- tinued tbe propaganda against the second respondent by publishing leaf- lets as well as appeals in ne\vspapcrs.
After the t\vo respondents had been declared elected, the appellant, an elector in the constituency, filed an election petition challenging the election of the first respondent on the ground that by his propaganda he was guilty of cormpt practices under s. 123 (2) and (4).
The High Court, disn1issed the petition with penal costs. Jn appeal to thh Court. c N. s. VARDACHARI V. G. VASANTHA PAI (Hegde, J.) HELD : ( 1) A debate whether a candidate was qualified to stand or whether a political party was competent to nominate candidates for a particular constituency cannot: be undue influence within the meaning of s. 123(2). [891G-H]
(a) The first respondent placed his point of view before the e:ecto- ratc and sought support for it from the judgment of the High Court and the second· respondent relied upon a press note issued by the Election Commission.
Candidates in electi~ns are not only entitled to raise l)Oti- tical issues but can also raise social, economic and legal issue:-. [892 A-Bl (b) The first respondent did not make anv attack on tbc character of the. secortd respondent.
The mere fact that his contention was Ufr tenable did not convert it into undue influence. [892B, HJ S. K. Singh v. V. V. Giri. [1971] 2 S.C.R. 197, referred to. (2) The first respondent was not guilty of any corrupt practice under s. 123{4). [891G]
(a) His propaganda that the second respondent was not qualified to be a cc.1didate was only an opinion expressed by him. He did not make any statement of fact and an opinion on a question of law could not be considered to be a ste.tement of fact.,
The fact that the Returning Officer held that the second respondent was qualified to be a candidato did not preclude the first respondent from debating the issue before the electorate. [891D-G]
(b) It could not be said that the opinion was neither bon" fide no. groundless as the contention was accepted as correci by the High Court in an elec~ion petition filed against second respondent, though that leci- sion was reYersed by this Court. [891E]
(c) Also, the first respondent's propaganda that the High Court had held ih the election petition against S, that the graduates' constituency v,.as a non-politic 1al constituency could not be said to be a false state1nent, because, the High Court. in fact, said so. [891F·G]
Gumii Shrihar Balircm Jivatode v. Vithalrao and Ors, [1969] 2 S.C.R. 766, referred l<J. (3) This conclusion of the High Court, that the graduates' consti- tuencv was a n(,11-political one, hoWever, was wrong. [894H] Jn the forn1 prescribed for nnminating cai:1didatcs for Legislative Assen1blies there is- a c:olumn requiring the candidate ro mention whether J;e belonged to a political party, and if so. to which party. The elector<
to the Legislative Assembly are by and large illiterate and to facilitate the freedom of voting the symbol system had been introduced. The symbols are of two types reserved and free. It was necessary for the
Elecdon Commission to know \\'hether a candidate was a nominee of a political party, because, reserved symbols are allotted to candidates spon- sored by recognised politico.! parties.
The symbol system is unneces- rnry in the elections to the Legislative Council, because, the ele~tors are generally educated. Therefore, the aboence of such a column in .the form prescribed for nominating candidates to the Legislative Council does not lead to the inference that election to the Legislative Council from the Graduates' constituency is non-political. [894 F-H; 895 A-CJ (~) Article 171(3)(d) -0f the Constitution says that members of the Assembly should elec~, as nearly as may be, 1 /3 members of the Council from among-;! persons who are not members of the Assembly; but no [1973] I S.C.R ..
such stipulation is made in the other clauses of !he Article. But from that it could not be concluded that when elections are held under clauses (a), (b) and (c) of Art. 171(3), the person to be.elected must be one who is a member of the electoral college in question. The candidate may either be a member of the electoral college or even an outsider. If a person possesses all the qualifications prescribed in the Constitution as well as in the Representation of the People A~ts and has not incurred any of the disqual'ifications mentioned therein he is qualified to be a candidate. f,894D-FJ
G. Narayanaswami v. G. Pannerselvam and Ors. Civil Appeal No. 189 of 1971 decided on April 12; 1972, followed. (5) In the circumstances of this case here was no justifioation for imposing penal oosts.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. of 1971. Appeal under section 116-A of the Representation of the People Act, 1951 from the Judgment and order dated Decem- ber 15, 1970 of the Madras High Court in Election Petition c
No. 2 of 1970. R. M. Sheshadri, K.· C. Agarwala, E. C. A.garwala and A. T. M. Sampath, for the appellant. S. V. Gupte, S. S. Javali, P. C. Bhartari, J. B. Dadacha.~ji and Ravinder Narain, for respondent No. 1.
S. S. Khanduja and Vineet Kumar, for respondent No. 2. The Judgment of the Court was delivered by Hegde, J. This is an election petitioner's appeal under s. 116-A of the Representation of the People Act, 1951 (to be hereinafter referred to as the Act) . It relates to the election to the Tamil N adu Legislative Council from the Madras City Gra- duates' constituency.
The. election was held .on April 11, 1970. Seven candidates contested in that election. The election w~s according to the principles of proportional representation by means of single transferable vote.
The Madras City Graduates' constituency was a two member constituency. The 1st respon- dent, Vasantha Pai was declared elected in the first count itself. The second respondent Narayanaswamy was declared elected in the second count.
The election of V asantha Pai was challenged by the appellant V ardachari who is an elector in the constituency in question on the ground that V asantha Pai was guilty of corrupt practices mentioned in sub-ss. (2) and ( 4) of s. 123 of the Act. The High Court came to the conclusion that the petitioner has failed to make out his case and consequently dismissed the elec- tion petition. Hence this appeal.
N. s. VARDACHARI v. G. V4.SANTHA PAI (Hr.ade, J.) The charges 11welled against Vasantha Pai are: (I) that he (Vasantha Pai) falsely carried on propaganda to the effect that the High Court of Madras had decided in an earlfor election petitic1n between him and R. N. Seshadri that the constituency in question is a non-political and Narayanaswamy having been sponsored by the Swatantra Party any votes given to him will
amount to "throwing away" of the votes and (2) that Narayanaswamy being a non-graduate was not qualified to be a candidate at the election. It may be noted at this stage that Vasantha Pai did object to the candidature of Narayanaswamy before the Returning 0fficcr on the two grounds mentioned earlier. The Returning Officer rejected c
tho~ objections holding that there was no material before him to show that Narayanaswamy had been sponsored by the -Swatantra party and further that in his view a non-graduate is not disqualified from seeking election from a graduate constituency.
Even after the Returning Officer rejected the contentions of Vasantha Pai, he admittedly carried on. the propaganda referred to earlier by publishing leaflets as well as appeals in the Newspapers.
Section 123 enumerates what are corrupt practices for the pur- poses of the Act. Sub-s. (2) of that section to the extent material for our present purpose reads : "Undue influence, that is to say, any direct or in-
direct interference or attempt to interfere on the part of the candidate or his agent, or of any oilier person with the consent of the candidate or his election agent, with the free exercise of any electoral right."
(The proviso is not relevant for our present purpose.) Sub-s. ( 4) thereof says : "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 be!ie·1es to be false or does not believe to be true, in relation to the personal cliaracter or con- duct 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." Before examining the points in issue, it is necessary to set out a few more facts.
In 1967 a seat in the Madras City Graduates' constituency fell vacant. For that seat election: was held on August 21, 1967. fa [1973] l S.C.R. that election V asantha Pai was one of the contestants.
One of the other contestants was R. N. Seshadri. R. N. Seshadri was declar- ed elected having secured the highest number of votes. There- after Vasantha Pai challenged the validity of the election of Sesha- dri on various grounds.
One of the grounds taken by Vasantha Pai was that in an election from graduates' constituencies political parties were not competent to sponsor candidates, Seshadri having been sponsored by the Swatantra party, was not qualified to be a candida1e. Yet another ground taken was that Seshadri was guilty of corrupt practices coming within sub-s. (5) of s. 123 of the Act. The High Court set aside the election of Seshadri- on the ground that he was guilty of corrupt practices mentioned in sub-s. -(5) of s. 123.
Dealing with the question whether Seshadri was qualified to be a candidate at the election or not it observed faat there is no satisfactory evidence before it to come to a conclusion that Seshadri had been sponsored by a political party.
But proceed- ing further it observed : "It is quite well known that the election to the Madras Legislative C:ouncil from the Madras District Graduates' Constituency is a non-party ~lection. No narty symbols
are assigned to the candidates. The political parties crnnot also nominate any candidate for this election." Aggrieved by the decision of the High Court, Seshaori took up the matter in appeal to this Court.
This Court affirmed .the finding of the High Court that Seshadri was guilty of the corrupt practices mentioned in sub-s. (5) of s. 123 of the Act. Evidently this Court was not invited to consider the correctness of the obtser- vations of the learn~d trial judge that "election to the Madras Legis- lative Council from the Madras District Graduate1' Constituency. is a non-party elec1ion".
The judgment of this Court did not touch that point. After the decision in Seshadri's case, Vasantha Pai persisted in carrying on propaganda that the Madras High Court had held that the election to the Madras Legislative Council from the Mad- ras District Graduates' Constituency is a non-party election and no political party can sponsor a candidate in that election. He
also carried on the propaganda that Narayanaswamy'~ candidature had been spons!)red by the Swatantra party and therefore according to him, he was not qualified to be a candidate. Having set out these facts we will first consider whether Wasan- tha Pai was guilty of a corrupt practlce coming within sub-s. ( 4) of s. 12 3.
The charge under this head is based on two g.;ounds viz. that he had falsely carried on propaganda that the High Court had ruled that the constituency in question was a non-political
constituency and further that he had carried on a false propaganda c c N. s. VARDACHARI V. G. VASAN.THA PAI (Hegde, J.) 8H that Narayanaswamy was not qulified to be a canilid11-te.
The- ingredients of the corrupt practice mentioned in s. 123 ( 4) as set out by this Court in Gumji Shrihar Baliram Jivatode v. VithalrlW' and ors.(') are: I. The publication by a candidate or his election
agent or any other person with the consent of the candidate or his election agent of any statement of fact. 2. Which statement is false and which was believed by the candidate to be false or at any rate was not
believed by him to be true; 3. The ·said statement relates to the personal charac- ter or conduct of a candidate or in relation to his candidature or withdrawal and 4. The same being a statement reasonably calculated
to prejudice the prospects of that candidate's election. Taking up first the propaganda of Vasantha Pai that Narayana- swamy was not qualified to be a candidate, it was only an opinion expressed by Vasantha Pai.
He made no statement of fact. An epinion, much less an opinion on a question of law cannot be- 1onsidered as a statement of fact. Further his opinion cannot be said to be either not bona fide or grom;idless as the same was accepted as correct by the High Court of Tamil Nadu in .the election petition filed against Narayanaswamy though that deci- sion was reversed by this Court in G.
Narayanaswami v. G. Pannerselvam and ors.(2 ). The fact that the Returning Officer had held that Narayana- swamy was qualified to be a candidate did 'not preclude Vasantha Pai from debating that issue before the electorate. V asantha Pai's propaganda that the High Court has held
that the graduates' constituency is a non-political constituency cannot be mid to be false statement. The High Court advertently or inadvertently said so though it was wrong if\ saying so as we shall presently see. Hence the charge under s. 123 ( 4) fails.
Now turning our attention to the allegation of undue influence, we fail to see how a debate whether a candidate was qualified to stand or whether a political party is competent to nominate can- didates for a particular constituen~y can be undue influence with- in the meaning of s. 123(2). Both candidates h1ve placed their point 0f view before the electorate.
Vasantha Pai sought support from the High Court's Judgment and Narayanaswamy relied on th'l' Pr!)Ss Note ·issued by the Election Commission that political parties (I) [1969] 2 S.C.R. 766.
(2) Civil Appeal No. 189 of 1971 decided on April 12, 1972. (1973] I S.C.R. are not precluded from sponsoring candidates in the graduates' constituencies. Candidates in elections are not only entitled to
raise political issues, they can also raise social, economic and legal issues. The fact that a contention is untenable does not convert it into an undue influence. We do seek to limit the scope
c;f the expression "undue influence" in s. 123 (2). As observed by this Court in S. K. Singh v. V. V. Giri(1) : "The freedom of election is twofold; (i) freedom in the exercise of judgment. Every voter should be free
to exercise his own judgment, in selecting the candidate he believes to be best fitted to represent the constituency; ( 2) Freedom to go and have the means of going to the poll to give his vote without fear or intimidation."
In that decision this Court observed after taking into consi- deration s. 171 (G) of I.P.C:. "It is clear that in pursuit of purity of elections the legislature frowned upon attempts to assail such purity
by means of false statements relating to the personal character and conduct of a candidate and made such acts punishable thereunder. But the fact that making of such a false statement is a distinct offence under Section 171-G does not and cannot mean that it cannot take the
graver form of undue influence punishable under section 171F. The false statement may be of such virulent, vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate
whom they would have supported in the free exercise of their electoral right but for their being affected or attempted to be affected by the make1' or th11 puolisher of such a statement.
Therefore it is the deuee of gra- vity of the allegation which will be the determining factor in deciding whether it falls under Section 171 C or Section 171G. If the allegation though false and
relating to a candidate's personal character or conduct, made with the intent to affect the result of an election, does not amount to interference or attempc at such interference, the offence would be the lesser one. If, on
the other· hand, it amounts to interference or an attempt to interfere, it would be the graver oft'ence under . Sec. 171-F, read with Section 171C." Herein it may be noted that Vasantha Pai did not· make any attack on the character of Narayanaswamy. His contention was that the election to the constituency in question was non-political and that Narayanaswamy was not qualified to be. candidate, he (l) [19''1] 2 S.C.R. 197.
c p c N. s. VARDACHARI v. G, VASANTHA PAI (Hegde, /.) 893 being not a graduate. Vasantha Pai was entitled to place these points of view before the electorate and even tell them that if Narayanaswamy is elected he may challenge his election. It was for Narayanaswamy or his supporters to counter the arguments advanced on behalf of V asantha Pai.
For the reasons mentioned above we agree with the High Court that the appellant has fai,led to establish the charges levelled by .him. At the same time we think it necessary to observe that the conclusion of the Madras High Court in R. N. Seshadri's case that the Graduates' constituency is a non-party constituency is an erroneous conclusion.
There is no reference to political parties either in our Constitution or in the Act. The political parties come into the picture indirectly though they have an important place in our political set up.
Our Constitution and the Act refer to candidates as such and not to the parties to which they belong. Art. 173 of the Constitution prescribes the qualifications of the person to be chosen to fill a seat in the legislature of a State. They are:
( 1) He must be a citizen of India. ( 2) He must make and subscribe before some person authorised in that behalf by the Election Com- mission an oath or affirmation acccrding to · the
form set out for the purpose in the Third Sche- dule to the Constitution. ( 3) In the case of a seat in the Legislative Assembly he must not be less than 25 years of age and in the case of a Legislative Council he must not be
less than 30 years of age and ( 4) He must possess such other qualifications as may be prescribed in that behalf by or under any law made by parliament. Then we come to . the provisions of the Act.
Section 5 of the Act prescribes the qualifications for member~hip of a Legislative Asse.mbly. In .the c;ase of a general constituency, the only quali- ficatton prescnbed 1s that he must be an elector for any assembly constituency ~ that Stat~.
~ection 6 l?rescribes the qualifications !or membership of a Legislative Counc!l. That Section reads : " ( 1 ) A person shall not be qualified to be chosen to fill a seat in the Legislative Council of a State
to be filled by election unless he is an elector for any Assembly constilt!ency in that State. [19731 l S.C.R. (2) A person shall not be qualified to be chosen to fill a seat in the Legislative Ccuncil of a State to
be filled by nomination by the Governor unless he is ordinarily resident in the State." The Representation of the People Act, 1950 prescribes quali- fications for being enrolled as an elector.
Sections 8 to lOA of the Act set out the grounds which disqualify a person from being a candidate. If a person possesses all the qualifications prescribeti in the Constitution as well as in the Act and has not incurred anv of the disqualifications mentioned therein then he is qualified to be a candidate.
It may look anomalous that a non-graduate should be a candidate in a Graduates' constituency. But if a candidate possesses the qualifications prescribed and has not incurred any of the disqualifications mentioned in the Constitution or in the Act other consideration becom.es irrelevant.
That is the ratio of the decision of this Court in Narayanaswami's case (supra). It was urged on behalf of Vasantha Pai that Art. 171(3)(d) of the Constitution specifically says that the members of the Assem- bly should elect as nearly as may be I/3rd members of the Legis- lative Council from amongst persons who are not members of the Assembly.
But no such stipulation is made in the other clauses of that Art. Therefore we should conclude that when elections are held under els. (a), (b)and (c) of sub-art. (3) ofArt.171, the person to be elected must be one who is a member of the electoral college in question.
WP see no logic in this reasoning. The relevant provisioas do not say so. From the fanguage of those provisions, it is clear that the candidate may either be a member of the electoral college in question or even an outsider. This question is no more res integra. It is concluded by the decision of this Court in Narayanaswami's case (supra).
Dealing with the question that the eleqtion to the Graduates' constituency is non-political, our attention was invited on behalf of Vasantha Pai to certain rules framed under the Act as well as forms prescribed. In the form prescribed for nominating candi- dates for legislative assemblies, there is a column requiring the candidate to mention whether he belongs to a political party, if so, which party, whereas there is no such column in the form pres- cribed for nominating candidates to the legislative council. From
this we are asked to infer that the election to the legislative council is non-political. In our opinion this is an erroneous contention. The electors to the legislative assembly are by and large illiterJ.te. Hence to facilitate the freedom of voting, the symbol system had been introduceµ.
There are two types of symbols viz. reserved symbols and free symbols. Reserved symbols are allotted oniy to c D I c N, s. VARDACHARI v. G. VASANTHA PAI (Hegde, J.) 895 candidates sponsored by recognised political parties.
Free sym- bols are given to others. In order to. allot the reserved symbols, it is necessary for the Election Commission to know whether a particular candidate is the nominee of any political party. Symbol system is unnecessary in the elections to the Legislative Council because the electors therein are by and large educated.
They can exercise their franchise.without the assistance of the symbols. We can see no legal objection for any political party sponsoring can- didates to the seats in the Legislative Councils.
One other question remains to be decided. The learned trial judge has imposed penal costs of Rs. 500/- on the appellant; that in addition to the ordinary costs. It was contended before us
that the learned judge had no competence to impose penal costs. We do not think it necessary to decide that question. From the facts and circumstances of this case, we do not think that there was any justification to impose penal costs.
We accordingly set aside the order imposing penal costs. In other respects this appeal fails and the same is dismissed with costs. V.P.S. Appeal dismined.