Paragraph numbers below are the court’s original numbering, recovered from the source text.
2. Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 8(b) and 1 0 of the petition ?
3. Whether the nomination papers of Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh ;Kachhwaha, Panuit Babu Lal Mag and Dr. Ram Dulare Tripathi were wrongly accepted as alleged in paragarphs 8 (c) and 11 of the petition ? SUPREME COUJ.:T R.EPOJ. TS [1971] 2 s.c.R. ..
4. (a) Whether all. or any of the allegations made in paragraphs 8 (e) and 13 of the petition constitute in law an offence of undue infiuence under section 18 ( 1 )(a) of the Act ? (b) Whether the said allegations in paragraphs 8 (e) and 13 are true and proved ·r (c) In the event of these allegations being proved and constituting undue influence– (i) whether the returned candidate has committed the offence of undue influence ? (ii) whether the offence of undue influence was com- mitted by his workers, and if so, with his con- nivance? (iii) whethe( the offence of undue influence was committed by others without his connivance, and if so, whether that ha.cs materially affected the result of the election ?
5. Whether Part III and section 21 of the Act are ultra vires the Constitution of India ?
6. Whether Rules 4 and 6 ( 3) (e) of the Rules are ultra vires the Constitution and the rule-making power of the Central Government ?
7. (a) Whether the elected members of the. Legis- lative Assemblies of the Union Territories were entitled to be included in the E1ectoral College for the election of the President? (b) If so, whether the non-inclusion of the mem- bers of the Legislative Assemblies of the Union Terri- tories. in the Electoral College amounts to non-com- plian~e with the provisions of the Constitution ? If so, whether the result of the election has been materially affected by such non-compliance ? (c) Whether the alleged non-compliance with the provisiorts of the Constitution has violated Article 14 of the Constitution ?
8. (a) Whether the petitioners are entitled to dis- pute the election of the respondent on grounds other than those mentioned in section 18 of the Act ? (b) If issue No. 8 (a) is decided in favour of the petitioners- ( i) whether the respondent or any person with his connivance printed, published and distributed the pamphlet at Annexure A-38 to the petition ~ c c 3; K. SINGH v. SIW. V. V. GllU (Bhargpva, 1.) ·ltf {ii) whether the pamphlet at Annexure A-3.8 con~ tained any false statement of facts relatm~ to the personal character· and conduct of ~hn N. Sailjiva Reddy, a candidate at the electton and other persons named in the pamphlet 1 (iii) whether the persons found responsible for pu~ lishing the pamphlet believed the statem~nts made therein as true or had reason to believe them to be true ? ( iv) whether the pamphlet was published with ~e object of prejudicing the prospects of the election of Shri Sanjiva Reddy and furthering the pros- pects of the election of the respondent 1 . (v) whether the election of the respondent is liable to be declared void on this ground '?
9. Whether the respondent or any other pe!SOn with his connivance committed the offence of bnbery as alleged in paragraph 15 of the petition ? 9A. Whether the allegations in pani. 15 constitute bribery within the meaning of the Act ?
10. Whether the offence of bribery was conunitted at the election by any other person without the con~ nivance of the respondent as alleged in paragraph 15 of the petition, and if so, whether it materially affected the result of the election ?
11. What reliefs, if any, are the petitioners entitled to ? FINDINGS lssut No. 5 of Election Petitions Nos. 1, 4 and 5 of 1969. Under this ·issue in Election Petition No. 1 of 1969, the only point .ralsed relates to the validity of section 21 of the Act, while, tn the other two election petitions Nos. 4 and 5 of 1969, the vali~ dity of Part ill of the Act as a whole is also challenged. It was oontcnded that Part ffi of the Act is ultra vires Artic1e 71 ( 1 ) of the Constitution on the ground that it purports to curtail the juris- diQtion conferred on the ~preme Court to enquire into and decidf! all doubts and disputes arising out of or in connection with the election of a President or Vice-President by laying down certain limitations, such as the grounds on which only the election of a President or Vi~President can be challenged in an election peti- tion. The question of validity of the Act was considered by this. :39'6 Court in Dr. N. B. Khtue v. Election Commission of lndiaC). where the Court dealt with the contention that !he Act and the Rules framed thereunder are void on the ground that they derogate from the jurisdiction of the Supreme Court to enquire into and decide all disputes and doubts arising out of or in connection with the election of the President or the Vice·President. This proposi- tion was supported by t:.1e argument, that under section 1 d of the Act, the election could be set aside only on certain grounds and that, further, under clause (b), it could be done only if the result of the election is shown to have been materially affected and that these are restrictions on the jurisdiction conferred by Article 71 ( t l ;and are ultra vires. The Court held :- "Article 71 ( 1) merely prescribes the forum in which disputes in connection with the election of the President and Vice-President would be enquired into. It does not prescribe the conditions under which the petition for setting aside an election could be presented. Under Article 71 ( 3), it is Parliament that is authorised to make law for regulating any matter relating to or con- nected with the election of the President or Vice-Presi- dent, and the Act has been passed by Parliament in a~cordance with this provision. The right to stand for election and the right to p10ve for setting aside an elec- tion are not common law rights. They must be con- ferred by statute and can be enforced only in accordance with the conditions laid down therein. The contention that the Act and the Rules derogate from the jurisdiction of the Supreme Court under Article 71 ( 1) must accord- ingly be rejected." The argument advanced was that the Court, in giving that decision, incorrectly proceeded on the basis that Art. 71 ( l ) merely prescribes the forum for the decision of doubts and dis- putes arising out of or in connection with the election of a Presi- dent and Vice-President, and ignored the circumstance that Art. 71 ( 1) actually confers jurisdiction on the Supreme Court which jurisdiction cannot be curtailed by a parliamentary law passed ·under Art. 71 (3) as the power of Parliament to pass the law is ·subject to the provisions of the Constitution, including the provi- sion contained in Art. 71 ( 1 ) . The distinction sought to be drawn has no force at all. In that case, the Court specifically dealt with the argument that Art. 71 ( 1 ) confers jurisdiction on the Supreme Court and gave its decision after considering. this aspect. In any case, even if the argument advanced is accepted that Art. 71 (I) defines the jurisdiction of the Supreme Court, the manner in which that jurisdiction is to be exercised can only be (f) [19S8lS.C.R. 648. c c S. It. SINGH·v. SHRl V. v. GllU (Bharl§ava, J.) regulated by an Act of Parliament passed in exercise of its power under Art. 71( 3). In exercise of that power to regulate aU matters relating to or connected ·with the election of a President or Vice-President, Parliament cl~ly had. ~e power of laying down the grounds on which the election can be challenged and set aside, in addition to other matters relating to the election. In this connection, learned .counsel also wanted to draw an inference from the provision in Art. 329 (b) of· the Constitution which lays down that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented 10 such authority and in such manner as may be provided for by or under any law ·made by the appropriate Legislature. The argu- ment was that, in this Atticle, there was specific mention of a· law made for calling in question an election by an election petition, whereas there is no such corresponding provision in Art. 71 of thf! Constitution. The argument advanced is clearly misconceived. In the case of elections to either House of Parliament or to the House or either House of the Legislature of a State. Parliament exercises powers to make law with respect to all matters relating to or in connection with the election under Art. 327 and not under Arb.329(b). Article 329(b) is a provision which lays down a limitation on the manner in which an election can be call- ed in question, while the procedure for calling in question the election. as welt as the grounds on·which the election can be call- ed in ques~ion. can only be laid down by Parliament by a law passed under Art. 327. In the case of Art. 71. it appears that no need was felt of making a provision similar to Art. 329 (b) when Art. 71 ( 1) itself laid down the limitation that all doubts and dis- putes arising out of or m connection with the election of a Presi- dent or Vice-President are to be enquired into and decided by the Supreme Court whose decision shall be final. This limitation does not affect or limit the· power of Parliament to regulate matters relating to tiling of election petitions in the S4preme Court and of the grounds on which the elections can be C.b.allenged when the Supreme Court exercises its jurisdiction·under A~. 71(1}. ln these circumstances, th~ argument that Part 11£ ~f the Act is ultra vires Art. 71 ( t) of the Constitution must be rejected So far as the validity of section 21 of the Act is concerned, it was challenged on the ground that the power of n\aking rules suffers from the vice of excessive delegation of legislative powers inasmuch as even essential matters of policy. are left to be pn;scrib- ed by rules by the Government and there are no guildin~'{>rinci ples, so that the power can be exercised arbitrarily. It ~a1 fur- ther stressed that, in the Act, no provision similar to secti~m 169 ( 3) of the Representation of the People Act, 1951 or sec~ion SUJI.R.EME COURT ~EPOR.TS (1971] 2 s.c.R. 28(3) of the Representation of the People Act, 19SO, was includ· 'ed by Parliament so as to require that the Rules framed under section 21 of the Act should be laid before each House of Parlia· ment and that the Rules should be subject to modifications or annulment by Parliament. It is not pcssible to hold that ~ti.oo 21 suffers from any such defects. Parliament laid down the essential matters of policy .relating to e~ections, including election .B petitions, in the Act itself and, thereafter, in section 21 delegated the power of making rules to the Central Government, subject to two principles· of guidance. One is that the Rules are to be made after consulting the Election C()Jillllission, and the second is that the Rules must be such as are needed for carrying out the put- poses of the· Act. This second limitation clearly requires that the Government, in making Rules, has to ensure that the RuleS are all required for carrying out the purposes of the Act; and that jtself is a sufficient limitation on the exercise of that power arbi- trarily by the Government. In Part II of the Act, the Legislature has laid down the essential regulations for holding the elections, and in Part III, similarly, the essential matters relating to filing of dection petitions a.nd their decision, including the grounds on · which the elections can be challenged, have been prescribed by Parliament itself. It is in order, to give effect to these principles laid. down by Parliament itself in the Act that the Government is to exercise 1~ power of making rules. Such power being already limited by the purposes of the Act cannot be held to be unguided or even arbitrary, even though Parliament did not choose t~ iay -down the Tet]Ulrement that the Rules framed must be laid on the table of the two Hou9eS of Parliament and should be subject to modification or annulment Within a specified period. In fact. Parliament- all the time has the power of altering the Rules by !Ullending the Act itself in case it disapproves of any of the Rules made by the Government, while any Rule, which is shown to have been made in contravention of the provisions of the Act, or for any reason other than to give effect to the purposes of the Act, would be declared void by the Court not on the ground that there was excessive delegation of legislative power, but that it goes -beyond the scope of the power conferred on the Government under s~tion 21 of the Act Section 21 of the Act ttsetf cannot. therefore, be held to be void on any ground. Issue No. 6 of Election Petitions Nos. 1, 4 and 5 of 1969 Under this issue, the petitio.ners challenged the validity of Rule 4 ( 1 ) of the Rules to the extent that it requires that a certified copy of the entry relating to the candidate in the electoral roll far the Parliamentary constituency in which he is registered must accompany the nomination paper, and the validity of the conse- quential provision in Rule 4 (2) which lays down that a nomina- c i c S • .IC. SINGH v. SHiu: V. V. Glltl (Bhargpva, J.) tion paper, to which the certified copy referred to in sub-rule ( 1 ) of tbil R.ulc is not attached, shall be rejected. This part of Rule 4(1) is chaiJenged on two gtounds. One is that such a require· meat ia beyood the rule·mal;..ing power of the Government under sectioa 21 of the· Act, and the second is that the Rule is arbitrary and unreasonable inasmuch as it lays down only one single man· ner Of showing that a candidate is an elector for a Parliamentary constituency by filing a certified copy of the entry, ru1ing out all other methods, such as filing of the published electoral roll itself, On the face of it, the first ground raised has no force. Clause (d) of sub-s. (2) of section 21 lays down that the Rules made under that section may, in particular, and wiUtout prejudice to the gene· J;&lity of the power granted under sub-s. ( 1 ) , pr<~vide for the fonn and manner in which nominations may be made and the proce· dure to be followed in respect of the presentation of nomination papen; and the requirement and that a certified copy of the ~ntry, showing that the candidate being nominated is an elector for a Par· liamentary constituency which alone makes him eligible to stand as a candidate for the office of President or Vice·President, must ' accompany the nomination paper falls squarely within this clause. The requirement relates to the manner of proving that the candi· date is an elector in a Parliamentary constituency. In any case, this provision in Rule 4 (1 ) would be fully covered by section 21 ( 1) of the Act inasmuch as the requirement is for no other pur· pose except of ensuring a smooth and proper election to the office E . of the President or Vice·President which object can be achieved by enabling the Returning Officer to ensure that candidates, whose nominations are accepted by bini, are eligible for election. In this connection, reference was made to the decision of this Court in Ranjit Singh v. Pritam Singh and Others(l), where the Court had to deal with section 33(5) of the Representation of the Peop ple Act, 1951, and the Court held:- "The object of this provision obviously is to enable the. returning officer to check whether the person stand· ing for election is qualified for the purpose. The elec- toral roll of the constituency for which the returning officer is making scrutiny would be with him. and it is uot necessary for a candidate to produce the copy of the roll of that constituency. But where the candidate l.Jelongs to another constituency, the returning. officer would not have the roll of that other constituency with him and therefore the provision contained in s. 33(5) has been made by the legislature to enable the returning ?fficcr to check that the candid~te is qualified for stand· mg for election. For that purpose the candidate is (I) (1966) 3 S.C. R. 543. (1971] 2 S.C.R. given the choice either to produce a copy of the elecro. ral roll of that other constituency, or~ the relevant part thereof or of a certified copy of the relevant entries in such roll before the returning officer at the time of the scrutiny, if he has not already filed such copy with the nomination paper." This decision clearly supports the view that the requirement in Rule 4 ( I ) that a certified copy of the entry showing that the can· didate is an elector in a Parliamentary constituency is necessary in l)rder to enable the Returning Officer to check whether the candi- date is eligible for nomination and election. The manner in which the Returning Officer should be given the necessary infor- . mation is a matter of detail relating to nomin?..tion and, conse- quently. this Rule is within the scope of the power conferred on the Central Government to make Rules for giving effect to the purposes of the Act. Based on this very decision cited above, learned counsel for the petitioners urged that, in section 33 (5) of the Representation ,,f the People Act, 195 J, the requirement is the production of either a copy of the electoral roll, or of the relevant part thereof, or a certified copy of the relevant entry in such roll, while, in Rule 4( J) of the Rules, the only manner of satisfying the Ret~rn ing Officer about eligibility permitted is the filing of a certified copy of the entry and, consequently, the requirement in Rule 4( 1) is arbitrary and tlilreasonable. It has to be kept in view that the election for the office of the President or Vice-President does not stand on the same footing as the election for membership of a House of Parliament or a House of the State Legislature. In the latter case, the Returning Officer usually has the electoral roll of the constituency, from which election is to be held, with him and, by and large, the candidates standing from a constituency are ~nrolled as electors in the same constituency. Provision had to be made in section 33 ( 5) of the Representation of the People Act, 1951, for those limited cases where the candid{l.te stood for election from a constituency different from the one in which he is enrolled as an elector. In the case of election for the office . of President or Vice-President, any elector enrolled in the electoral roll of any Parliamentary constituency in India is entitled to stand as a candidate, and it is clear that the electoral rolls of those cons- rituencies will not be with the Returning Officer. In every case. therefore. it would be necessary that some evidence should be available with the Returning Officer so as to enable him to ensure that the candidate is eligible for election. In order to make cer- tain that the election proceeds smoothly and to minimise .. the chances of disputes or doubts arising, the requirement laid down in Rule 4 (I ) is that a certified copy of the entry alone should be c c S. K, SINGH v. SHill V, V. <Jl'Al (Blur~, J.) . 30t accepted ar tLe proper prool for showing eUgibility of the candi~ date. ·Electoral- rolls are suQject to revision from time to time. At the general elections, they are fully~ and, then, Sltbsequent alterations are made in them as occasions arise. The election to· the office of a President or Vice~President may not coincide with or be very close to the time when there is general revision of the· electoral rolls, so that the electoral rolls printed . and published nearabout the time of general elections may be out of date by the time the election for the office of a President or Vice~President is heid. The published electoral roll may, therefore, be misleading if it is allowed to be filed before the Returning Officer to show eligibility in the case of a Presidential or Vice-Presidential elec- tion. That seems to be the reason why Rule 4 ( 1 ) lays down that a certified copy of the entry alone will be the proper manner of satisfying the Returning Officer of the eligibility of the candidate. The original electoral roll, of course, cannot be produced as there is only one original which is· retained either by the Electoral Registration Officer or in the office where ~e Chief Electoral Registration Officer directs it to be preserved m accordance with the Rules framed under the Representation of the People Act, 1950. In such circumstances, if the rule·making authority did not consider it safe to rely on printed copies of the electoral rolls issued generally at the time of general cl.ections to Parliamentary constituency, it cannot be sai9 that the authority acted arbitrarily or unreasonably. The smoothness of the elections could only be ensure.d by requiring the filing of a certified copy of the entry which would. be immune from any ~oubt or challenge. The mere fact that the requirement of Rule 4(1) of the Rules differs from the requirement of section 33 ( 5) of the Representation of the· People Act, 1951, cannot be a ground for holding that Rule 4 ( l ) lays down an, unreasonable restriction, so that this Rule must be held to be vaHd. Rule 4(2), which prescribes the consequence tor non·compliance with the requirement of Rule 4 ( 1 ) , must also· be held to be valid as it is in.tended merely to make the valid Rule 4 ( l ) effective. The next challenge is to the validity of Rule 4 ( 3) and the .consequential Rule 6 ( 3 )(e) of the Rules. Rule 4 ( 3) lays down th~t no elector shall subscribe, whether as proposer· or as.seconder, more than one nomination paper at any election, and Rule 6(3)- ( e) is the consequential provision laying down that the Returning Officer shall reject a nomination paper on the ground that the proposer or seconder has subscribed, whether as proposer or seconder, another nomination paper received earlier by the Return~ ing Officer at the same election. The validity of Rule 4(3) has been impugned on the ground that it is in derogation of the rifdlts conferred on a candidate or on electors by section 5 ( 2) of the Act. Section 5 reads as follows :- SU~REME eOURT REPORTS (J 971] 2 S.C.R; "5. Nomination:. of candidates.-( 1) Any person may be nominated as a candidate· for election to the office of President or Vice~President if he is qualified to be elected to that office under the Constitution. ( 2) Each candidate .shalt be nominated by a nomi~ nation paper completed in the prescribed fonn and ~ubscribed by the candidate himself as assenting to the norr:ination and by two electors as proposer and secon· · der." The argument is that every candidate, under section 5 (2), has a .'1'Jght to be nominated by any two electors as proposer and secon- der without· any limitation as to who those two electors are and irrespective. of those electors having done any act, such as having proposed or seconded' another candidate. It is also urged that this provision confers 1(' right on every elector to subscribe a nomi- nation paper as prop{>!;er or seconder without any limitation as to the number of nomination papers whicJt c_IDDQe so subscribed by him. The submission that section 5(2) should be rea~ as conferring .any right either on the candidate or ori the elector'S in respect of signing of nomination papers cannot be–accepted. On the face of it, the provision made 4n section 5 relates to procedural matters leading up to the exercise of electoral rights of .a_ candidate or an elector. The filing of:_nomination paper only regulates the man- ner in which.. a candidate is_ t~ signify the fact that he desires to be elected, and the provision for the nomination paper being signed ·by two electors as propuser and seconder is meant only to indicate to the electors in general that the candidate is being put forward for election by at lea-st two electors. The no~J~ination pap.er also serves the purpose of informing the Returning Officer who are the candidates, so that appropriate steps can be taken for holding the poll by having ballot papers printed and appropriate number of ballot boxes provided. The IangL.age of section 5 ( 2) itself shows that it was while prescribing the manner of subscribing a nomina- tion paper that Parliament laid down that it should be subscribed by the candidate himself as assenting to the nomination and by two electors as proposer and ~econder. Had there ~h an inten· lion to confer a right on any of them, the language would have been different giving such indication by laying down what the candidate and tlle electors are entitled to do i~ respect of a nomi. nation paper. Obviously, section 5 only Jays down the. essential ingredients of the process of nomination, leaving the details of the manner of nomination to be filled up by Rules made by the ·Government under section 21 of the Act. Rule 4(3), which requires that no elector shall subscribe, whether as proposer or seconder, more than one nomination paper at any election, is, c f c c S. K. SlNQH V. SHlll V, V. GIRl (Bhargava, J.) 30:t thus, supplementary to section 5 ( 2) as containing a more detailed · direction in respect of filing of nomination papers. In this connection, learned counsel for the petitio11ers referred to the decision of this Court in Amolak Chand v. Raghuveer Singh (l.), in which a similar provision contairled in section 33 of the Representation of the People Act, 1951, as amended by the· Amending Act 27 of 1956, came up for consideration. Prior to the Amending Act 27 of 1956, section 33, dealing with this sub- ject, specifically laid down that any person, whose name is regis- tered in the electoral roll of the constituency and who is not subject to any disqualification mentioned in section 16 of the Representation of the People Act, 1950, may subscribe as proposer or seconder as many nomination papers as there are vacancies t(} be filled, but no more; and there was also a consequential prvvi- sion in section 36(7) (b) which laid down that, where a person has subscribed, whether as proposer or seconder, a larger number of nomination papers than there are vacancies to be tilled, those of the papers so subscribed which have been first received, up to the number of vacancies to be filled, shall be deemed to be .valid. These provisions were omitted by the Amending Act 27 of 1956. and thereafter, the language of -section 33 became similar to that of section 5 ( 2) of the Act inasmuch as it required the candidate to deliver to the Returning Officer a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. The question. arose whether, if a single elector signed more than one nomination paper as a proposer, any of the nomination papers could be held to be invahd. The Court held that, after the enactment of the: Amend- ing Act 27 of 1956, there was no bao in section 33 ·of an electOr signing more than one nomination paper and, consequently, if an. elector signed more ·than one nonunation paper, all the nomma·· tio papers would be valid. That case is, thus, linuted to the . question whether there is or is no ban on an elector signing more: than one nomination paper as a proposer. It did not lay down that every elector had been conferred a right to sign the nomina·: tion paper of more than one c;~didate as a proposer. While no-' right can be read as having been conferred by such a provision, there will be no bar to a rule being made by the rule-making authority limiting ·th~. number of nomination papers to be signed by each elector as a proposer or a seconder. In fact, Rules are· always meant to fill in details of procedure in respect of which the· Act does not contain specific provisions. The Rules are meaat to· supplement the provisions of the Act and to deal with matters incidental, in respect of which there is no definite provisioR made in the Act itself. The fact that there is no ban in section 5(2) of the Act on an elector signing more than one nomination paper· (1) £196~) 3 S.C.R. 246. 8-L303 Sup Cl/71 SUPREME COURT ·REPORTS as a proposer or a seconder does not, therefore, mean that Rule 4(3) of the Rules could not have been competently made by the Govenunent. Rule 4(3), on the face of it, contams a very rea· sonable direction. If there is only one vacancy for which election is to be held, an elector can reasonably be expected to nominate only one candidate as proposer and put him forward before the other electors as a suitable person to ,be chosen. Similarly, when seconding a nomination paper, an elector indicates his preference for that candidate to the general electorate which is to cast votes at the election. If the indication of such choice is restricted to as many candidates as there are vacancies, the provision, is, on the face of it, salutary and conducive to proper election. The historical background of the Rules relating to elections in India also bears out that such a provision has always been con- sidered desirable. The earliest Rules that have been brought to our riotice are the Electoral Rules. and Regulations made . for elections to the Legislative Assembly at the Centre and to the Legislative Councils of Provinces under the Governrnen~ of India Act. The Rules, as .revised up to 25th August, 1934, made by the Central Government, contain a provision in Rule 11 (3) of Part IV, similar to that of section 5 of the Act, by laying down that the nomination paper shall be subscribed by the candidate himself as assenting to the nomination and by two persons as proposer a·nd seconder whose names are registered on the electo- ral roll. of the constituency. This is ·followed by sub. rule ( 4) which -limits the number of nomination papers to be subscribed as proposer or seconder by an elector to the number of vacancies to be filled but no more. These two requirements having been laid down by the Rules, the further procedure was governed by the RegulatiOn$ made for each Province for conducting the elections in that Province even in respect of the Central Legislative Assem- bly. In the Presidency. of Madras, Regulation 7(1) (iii) em· powered the Retur!}ing Officer to refuse any nomination on the ground that there has been a failure on the part of the candidate or his propo~er or seconder to comply with any of the provisions of Rule. 11; and it was in exer~ise of this power that the Returning Officer could reject the nomination paper signed by an elector or proposer in excess of the number of vacancies. For the Presi- dency of Bombay, a similar prov.ision was made in· Re_gulation 3 of the Legislative Assembly (Bombay) Electoral Regulations dated 13th September, 1923, for rejection of the nomination paper by the. Returning Officer. The corresponding provision for the Pro- vince o.f Bengal was contained in Regulation 20; for United Pro- . vinces in Regulation 9; for Punjab in Regulation 4; for Bunna in Regulation V; for Bihar and Orissa in Regulation 24; for the Central Provinces in Regulation 4; and for Delhi in Regulation 5. All these Regulations were made under Rule 15 of the Legislative c S. K. SINGH v. SHRl V. V. GIRl (Bhargava, /,) Assembly Electoral Rules. Thus, the principle that an elector should not sign nomination papers as proposer or seconder in excess of the number of vacancies was observed throughout India. Similar provisions existed in the various Provinces in respect of elections to be held to the Legislative Councils of the Provinces. Later, when the Council of State came into existence after the Government of India Act, 1935, provision was made in Rule 11 ( 4) limiting the number of nomination papers, which could be subscribed by an elector as proposer or seconder, to the number of vacancies to be filled and no more. Even in the Representation of the People Act, 1951, when first enacted, there was a similar provision. The Act, with which we are concerned, was passed in · · 1952 in this stage of legislation and it is obvious thatParliament, / when enacting section 5, left it to the rule-making · authbn1y to J)lake detailed provisions of this nature. It may also be mentioned that a similar provision exists in the Rules governing elections in England. The Act in question :is the Representation of the People Act, 1949, and the Rules for Ccnduct of Elections were contained in the Second Schedule to that Act. Rule 8 ( 1) of the Second Schedule was similar to section 5 ( 2 J of the Act laying down that the nomination paper shall be subscribed by two electors as proposer and seconder, and by eight other electors as assenting to the nomination. Rule 8 ( 5) laid down the limitation that no person shall subscri~ more than one nomination paper at the same election and~ if he doesJ his signature shall be inoperative on any paper other than the one first d~livered. The provision is not only sunilar, but it is significant th!lt, when laying down the 'limitation in &ule 8 ( 5), the language used indicates that no riMt on an elector to subscribe as proposer and seconder any number of nontinationt was envisaged as .having been conferred by Rule 8 ( 1). If we were to hold that Rule 8 ( 1), which is similar to section 5 (2) of the Act, confemd a right on an elector to subscribe any number of nomination papers as proposer and seconder, Rule 8 (5) would have contained words indicating that it will over-ride the provisions ·of Rule 8 ( 1 ) . This could have been done either by making Rule 8(1) subject to Rule 8 ( 5), or by stating iri. Rule 8 ( 5) that it shall prevail not- withstanding anything contained in Rule. 8 ( 1). There was, · in fact, no need to use such qualifying words, because Rule 8(1) could .not be interpreted as conferring a right on ·an elector to subscnbe more than one nomination paper as proposer or secon- der, so that. Ru1e 8 ( 5) was not a limitation on any right conferred. by the earlier sub-rule . . In these circumstances, it must be held It ~hat Rul~ 4(3~ of the Ru!~ was validly made by the·G<>vernment m exerc1se o~ Its ru!e-:-makmg power under section 21 of the Act. That ~ule bemg valid, Rule 6 ( 3 )(e) of the Rules, which is conse–. .. quential, must also be held to be valid. [1971] 2 s·.c.R. Issue No; 1 in Election Petitions Nos. 1,· 4 and 5 of 1969. These issues between them raise the question of the validity of th~ rejec.tion of t~e nomination papers of three persons, Shri Shiv Kirp~l S.mgh, . Shn Chara!l L~l Sa?u an~ Shri Yogi Raj. The nommahon ,paper of Shn 5htv K1rpal Singh was rejected on the grou~d that ~t w~s not accompanied by a certified copy of the entry relating. to hl!ll m the elect?ral roll for the Parliamentary consti- tuency m whtc~ he was registered. Instead, his nofuination paper was accompamed by a few printed sheets purporting to be pan of the electoral roll <?f that constituency containing his name as an elector. It has already been. ~eld above, when dealing with Issue No. 6, that ~ule 4 ( 1), r~umng that the nomination paper must be accompam~d by a certified. copy .of th~ electoral roll containing the entry relatmg to the c~nd1dat~, IS vahd and mandatory. Since ther~ wa;; clear non-compliance w1th that Rule, the rejection of the ~Ofi:Unation paper of Shri Shiv Kirpal Singh was correct and Justified. The nomination paper qf Shri Charan Lat Sahu was rejected en the ground that he was less than 35 years of age on the date of nomination. The nomination paper was, no doubt, accompanied by a certified copy of the entry in the electoral roll in which his age was shown as 32 years on 1-1-1966 .. · The Returning Officer had some doubt whether Shri Charan Lal Sahu had completed the age of 35 years and, consequently, he asked Shri Charan Lal Sahu, who was present at the time of scrutiny,… to state his date of . birth. He gave in writing that his date of birth was 15-3-1935. According to this date of birth given by Shri Charan Lal Sahu himself in his own handwriting to the Returning Officer, he wa.~ clearly below 35 years of age on the date of nomination. The nomination paper was rejected on ibis ground. The rejection is based on Shri ·Charan Lal Sahu's own statement given before the Returning Officer; and it is significant that in none of these election petitions has any assettion been made that in fact, the age of Shri Charan Lal Sah~ was more than 35 years' on the date of nomina- tion. The only attempt made is. to challenge the order of the Returning Officer on the ground that the entry in the electoral roll showed that he was qualified as a candidate, having attained the age of 35 years. That en_try is of little value after Shri Charan Lal Sahu's own statement in writing indicating that he was less than 35 years of age. While no election petitioner is prepared to assert and prove that Shri Charan Lal Sahu had in fact completed 35 years on the date of nomination, it has to be held that the r.ejection of his nomination paper was fully justified and correct. So far as the rejection of the nomination paper of Shri Yogi Raj is concerned, his nomination paper was rejected on the ground. ·. that he had been proposed and seconded by the same electors who .A c -·;>· S. lC., SINGH V. SHRl V. V. GIRl (Bharl$.VD, J.) had proposed and seconded another candidate, Shri Rajbhoj Pandurang Nathuji, and the nomination of the later was received earlier by the Returning Officer. The Returning Officer rejected the nomination paper by an order made in accordance with Rule 6(3)(e) read with Rule 4(3) of the Rules. The correctness of this order was challenged on the ground that these Rules are ultra vires the Act. In dealing with issue No. 6, it has already been held that these Rules are valid and are not in contravention of section 5 (2) of the Act. The rejection of his nomination paper, based on these valid Rules, was justified and, consequently, it can- not be held that his nomination paper was worngly rejected. Issue No. 2 in Election PeNtions Nos. 1 & 5 and Issue No. 3 in Election Petition No. 4 of 1969. The acceptance of the nomination paper of the respondent has been challenged on the ground that his nomination paper was not accompanied by a certified copy of the entry relating to him in the Parliamentary constituency in which he was registered. After examining the certified copy fil~d, it is not possible to accept the submission. because, on the face of it, it is a certified copy of the electoral roll issued by the appropriate authority. These issues are, therefore, decided against the election petitioners. Issue No. 3 in Election Petitions Nos. 1 & 5 and Issue No. 2 in Election Petition No. 4 of 1969 Under these issues, the validity of the acceptance of the nomi- nation papers of four candidates, Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhwaha, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi, was challenged. In Election Petition No. 5 .of 1969. the nomination paper of Shri Rajbhoj Pandurang Nathuji was challenged on two grounds, but one of the grounds was given up, and the only ground, which was pressed and which was also common to other election petitions, was that the copy of the electoral roll, which accompanied his nomination paper, was not certified by the approprate officer. This submission was made on the wrong basis that the Rules required that the certified copy must be issued either by the Electoral Registration Officer or the Assistant Electoral Registration Officer. The copy was, in fact, issued by one Shri M. V. Madke with a rubber seal under it showing that he was functioning as Tehsildar, Poona City. It appears that the permanent Tehsildar of Poona City was the Assis- tant Electoral Registration Officer, but, at the time of the issue of the copy, he happened to be absent and Shri M. V. Madke, who was A val Karkun, was acting in his place. Since Shri M. V. Madke was acting in place of the Tehsildar, he was also in charge of the electoral rolls which were in his custody. He was further empowered to exercise all the powers given to the Tehsildar~ He, (1971 J 2 S.C.R. therefore, was competent to issue the certified copy in two capa- cities, viz., ( 1) as exercising powers of the Tehsildar conferred on him while he was acting in place of the permanent Tehsildar and (2) in the capacity of custodian of the document of which the copy was required. There is nothing in the Rules framed under the Act, or under the Representation of the People Act, 1950 and Rules framed thereunder, requiring that a certified copy of the electoral roll must necessarily be issued by either an Electoral Registration Officer or an A.,sistant Electoral Registration Officer. Every government servant, who has custody of a document, is – co • .opetent to issue certified copies of that document, so that the certified copy issued by Shri M. V. Madke was a valid and good copy ·and there was no rea•;on for rejection of his nomination paper. It was rightly accepted. In the case of Shri Santosh Singh Kachhwaha, the only ground pressed was that his nomination paper was signed by the proposer and the candidate on 16th July, 1969, while the seconder signed it on 21st July, 1969. Thereafter, the candidate himself present- ed this nomination paper to the Rt!turning Officer on 23rct July, 1969. His case may be considered with that of Pandit Babu Lal Mag in which also the ground for challenging the validity of the nomination paper is similar. His nomination paper was signed by him on 18th July, 1969, while both the proposer and the s~conder signed it on 21st July, 1969. Thereafter, Pandit Babu Lal Mag himself presented the nomination paper to the Returning Officer. The point raised was that, in one case, the seconder signed the nomination paper after the candidate, while, in the other case, both the proposer and the seconder signed after the candidate }:lad done so. The nomination paper shows that the ~andidate, when signing, purports to "assent to this nomination". It was urged that a signature in token of such assent to that parti~ cular nomfnation must be made by a candidate after both the pro- poser and the seconder have signed. Reliance was placed in this connection on the decision in Harmon v. Park(!). In that case, the question arose about the validity of a nomination paper of a candidate Mark Harmon which, when initially presented, had the name of William Ball as proposer, together with signatures of the seconder and' eight burgesses as assenting parties to that nomina~ tion. The clefk, on looking at the burges roll, found that the name of William Ball was on the list of electors, but it was noted in the margin "not entitled to vote here". At the time of presen~ tation, one John Green, a duly enrolled burgess, happened to come into the office and, seeing the nomination paper signed by Ball, and knowing that the name of William Ball was not on the burgess roll as a person entitled to vote, struck out Ball's signature (1) [1881) 7 Q.B.D. 369. c c ~. K. SINGH V. SHRI V. V. GIRl (Bhargava, J.) and inserted his own name in lieu thereof. At that time, Ball the original proposer, the seconder and the assenting burgesses ~ere not present. Green har1ded in this nomination paper to the town clerk. It was in these circumstances that the nomination paper was held to be invalid. Grove, J., held:- "The argument for the appellant was that these eight persons assent to the nomination <lf the candidate as a proper person to be nomin11ted; an argument which if carried to its full extent must involve the proposition that the assenting burgesses may subscribe a nomination paper with the names of proposer and seconder in blank. But the assents required by the Act are to the nomina- tion in the form in which it is written, so that any person assenting may first see who is proposer and seconder. It may well induce them to give their assent if they find that the proposer and seconder are good and responsible persons in whom they may trust. I think, therefore, that the nomination was bad, and the name of the appel- lant properly rejected as a candidate." Lindley, J ., agreeing with him said :- ''The Act of Pariiament requires that the. etght burgesses shall assent to the nomination. What then is the nomination in writing to which they assent ? The nomination consists in f!lling up the_ name of the candi- date on the nomination form, with the signatures of the proposer and seconder. The argument for the peti- tioner comes to this, that the etght persons might sign even before the name of the candidate was on the nomi- nation paper. This is notthe kind of assent required by the statute. The _nomination must precede the assent, the assent must not precede the nomination." Thus, in that case ,the nomil)atiem paper was held to be invalid, because the signature of John G~n. who was ultimately the prp- poser, was put on the nomination paper after the seconder, the candidate and the eight assenting burgesses had · all signed it. However, the point to be noticed is that, in that case, the invalidity was found because the circumstances in which John Green substi- tuted his name as the proposer showed that the assenting eight burgesses had no knowledge at all that he had become the pro- poser, as they had only assented to the nomination signed by William Ball. John Green su-bstituted his name for that of William Ball in the absence of the burgesses. 0~ this ground, it was held that the nomination paper could not be held to contain in it the assent of the eight burgesses. That case is distinguish- able from ·the present case: In the present case, when the candi- dates concerned signed in token of their assent before the proposers or the seconders had signed their nomination papers, the candi- dates knew that they were assenting to be put forward as candi- dates at the election and, subsequently, after the proposers and seconders had signed their nomination papers, they themselves took those nomination papers and presented them before the Returning Officer. Clearly, therefore, they indicated their assent to being nominated by the particular proposers and seconders, who ' signed their nomination papers, by taking the step, after their signatures, of carrying the nomination papers to the Returning Officer and presenting. them as valid nominations. There is further the circumstapce that, though, in England, in the particular circumstances of the case in Harmon v. Park(l) it was held that a nomination paper was invalid if slgned by the proposer after .it had been. signed by eight burgesses in token of their assent, the law as to nominations in India has through- out been interpreted different. As early as the year 1922, whea also the provision in respect of signing of nomination papers was similar, it was held by the Election Tribunal in Jamna Prasad v. ·Sri Krishna Prasad(Z) that : "there is no rule as to the order in which names should be signed. On the other hand, ·the subscription by the candidate is .mentioned in the rule before that by the proposer and seconder. We should not read into the words of the rule any words which do not exist and say that the proposer and the seconder must sign their names before the subscription by the candidate him~ self; when the requirement is ·merely that the candidate must also subscribe to the paper as assenting to the nomination, that is to say, the naming of himself as a candidate for the constituency. What has been done by the petitioner does not offend the words or the sptrit of the rule." The Election Tribunal also took notice of the decision in Harmon v. Park (1) and distinguished it on the ground that that case could not apply where the subscription by the candidate himself and the making of signatures by the proposer and the seconder had only to be considered, while there was no question of assent of other persons like eight burgesses. The same view was taken in the year 1924 by the Election Tribunal in the case of Rai Ba,hadur Prosanna Kumar Das Gupta v. Mr. Chittarania.1 Das(8 ). In that case also, the Tribunal dis- tinguished the decision in Harmon v. Park(l) and, in addi- (1) [l881J7Q.B.D. 369. (2) Case No. 121 reported at p. 79 of Doabia's Election Cases 1864-1935 Vol. II, 1955 Edn. (3) C:tse ·N'l. 12() rep;>rted at p. 73 of D:>ama's Election Cases 1864-1935 Vol II, 1955 Edn. c c S. K. SINGH v. SHRl V. V. GIRl (Bhargava, /.) tion referred to the .<fecision in Cox & Others v. Davies(!). ln the iatter case, Grantham, J., had occasion to deal with a situation very similar to the one in the present case. He held :- "The language o.f the present rule is not the same as that of the section upon which those cases were decided. It would require a good deal to convince me that there is anything wrong in a candidate filling his own name in after those of his proposer and seconder. In my own practical experience of electiom it is a thing which is constantly done. If the signatures of the pro- poser and seconder were used for the purpose of filling m the name of a candidate that they did not intend. that would be another matter. Harmon v. Park was a very different case from this". In this case the validity of the nomination paper was being chal- lenged on the ground that the candidate 'had filled in his own name after the proposer and seconder had already signed it and, yet, it was held that the nomination paper was valid on the ground that there was nothing to show that the proposer and seconder did not intend to nominate that particular candidate. In tl1e present case, there is nothing to show that the candidates did not intend to be nominated by the proposers and seconders who had signed their nomination papers after they had signed them in tokeq of their assent. On the other hand, as indicated above, it must be held that the candidates actually signified their assent to being nominated by the proposers and seconders, who had signed earlier, by presenting the nomination papers themselves to the Returning Officer. Another Election Tribunal, in the year 1946, arrived at the same decision in the case of Mahant Digvijai Natlz v. Sri Prakash ( 2). In that case also, the candidate had signed the nomination paper before it was signed by the proposer and secon- der. The Tribunal placed reliance on the decision in . Jamna Prasad v. Sri Krishna Prasad (supra) and held:- "Even if it is assumed that strictly speaking the candidate must sign his name after the proposer and seconder have signed it, there is no direction in the rules that it should be so and that there is no "invalidat- ing consequence" provided for in the rules in case this. has not been done." (I) [1891] 2 Q.B.D. 202 (2) Case No. XXIV reported at p. 147 of Indian Election Cases 1935-51 by Sen 4 Poddar. 312 . In fact, the Tribuna: went to the extent of holding that :- "It is not open to the returning officer to enquire in . what order the signatures had been made so long as the signatures are not found to be not genuine or obtained · by fraud." In that case also, the Tribunal took notice of the two English decisions in Harmon v. Park(l) and Cox & Others v. Daviese) and inferred that it cannot be held that there is any natural order in which nomination paper should be filled up and signed and, unless there is something specific in the Rules, the fact that a candidate gives his asserit on the nomination paper before the proposer and seconder had signed it or before the other entries had been com- pleted is of no consequence. Thus, when the Act was enacted in 1952, the law in India, as administered by various Election Tribunals, was clear that the order, in which signatures are made on a nomination paper by the candidate; the .proposer and the seconder, is immaterial and no nomination .paper would be invalid / if the signatures are made by the candidate before the proposer and ·the seconder signed_ it. The Legislature, when enacting the Act, must be presumed to know that this was the law as inter- preted in India and, consequently, when the language incorporated in section 5 ( 2) of the Act was used, it must have been intended that nomination papers would not be invalid by reason of the candidate making his signature before the proposer and the secon- der. Even subsequently, a. similar provision in the Representation of the People Act, 1951, and the Rules framldi thert..ander for conduct of ~lections and election petitions, was interpreted in the same manner by the Election Tribupal in the case of Yamuna Prasad v. Jagdish Prasad Khare & Others(8 ), · Consequently, it cannot be h~ld that, in the present case, the nomination paper of Shri Babu Lal Mag was invalid because he signed his nomination paper before it was signed by the proposer and seconder, or that the nomination paper of Shri Santosh Singh Kachhwaha was in- valid because he signed hi:> nomination paper before his seconder had signed it. 'J!le nominatio.t;t papers of both these candidates were, therefore, nghtly-accepted. So far as the nomination paper of Dr. Ram Jlulare Tripathi is c~ncemed, th_e allegation was that it did not appear to bear the Signatur~s of the proposer and the seconder, be~ause a mere look ~iJl rn~e it clear ex facie that the whole qf the nomination paper, mcludmg the signatures of the proposer, the seconder, and the candidate are in the handwrjting of one person.· This allegation was controverted by the Returning Officer in his counter-affidavit who has sworn that it did not appear to him that all the signatures (1) [1881] 7 Q.B.D.369. (2) [1881] 2Q.B.D. 202. (3) (1957-58) 13 E.L.R. 1 c ·' I ·— ,_ I j-.- S. IC, SINGH V. SIIR.X V. V. GIRl (Bharg!lva, J.) were in one-handwriting and that he was satic;fied that the nomina- tion paper had been properly proposed, seconded and signed. After this counter-affidavit, when the petition was argued, learned counsel for the petitioner ·did not press this issue and did not try to produce any evidence to show that the signatures oi the pro- poser, the seconder, and the candidate were not genuine. Conse- quently, the acceptance of the nomination paper of Dr. Ram Dutare Tripathi was not invalid. c Issue No. 4 in Election Petition No. 1 of 1969 and Issue No. 7 in Election Petitions Nos. 4 and 5 of 1969. The ground covered by these issues is sought to be raised on the basis of the provisions contained in Art. 54 of the Constitution read with the definition of "State" contained in clause (58) of section 3 of the General Clauses Act, 1897. It was urged !hat~ under Art. 54, the Electoral College consists of the elected mem- bers of both Houses of Parliament, and the elected members of the Legislative Assemblies of the States. Relying on the definition of "State" in section 3 (58) of the General Clauses Act. it is argued that Union Territories are also States and, consequently, the elected members of the Legislative Assemblies of the Union Territories must also be included in the Electoral College. Their omission is a material irregularity which vitiates this election. · There are two reasons why, on the face cf it, this submission has to be rejected as t~ptenable. Article 54, no doubt, lays down that all elected m~mbers of the Legislative Assemblies of the States are to be included in the electoral college; but the word "States" used in this. Article cannot include Union Territories. It is true that, 'under Art. 367, the General Clauses Act applies for inter- pretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India; but that Act has been applie_d as it stood on 26th January, 1950, when the · Constitution came into force, subject only to any adaptations and modifications that may be made therein under Art. 372. The General Clauses Act, as it was· in 1950 and as adapted or modified under Art. 372, did not define "State" so as to include a Union Territory. The Constitution was amended · by the Constitution (Seventh Amendment) Act, 1956, which introduced Art. 372A in the Constitution permitting adaptations and modifications of all laws which may be necessary or expedient for the purpose of bring- ing the. provisions of the law into accord with the Constitution as amendCd by the Seventh ~endment Act, 1956. It was in exer- cise of this power under Art. 372A that section 3(58) of the Genera] Clauses Act was amended, so that, thereafter, ''State" as defined included Union Territories also. The new definition of "Staten in section 3(58) of the General Clauses Act as a result 3-14 Qf modifications ·~hld adaptations under Art. 372A would, no doubt, apply to the interpretation o.f al11aws of Parliament, but 1t cannot apply to the interpretation of the Constitution, because Art. 367 was not amended and it was not laid down that the General Clauses Act, as adapted or modified under any Article other than Art. 3 72, will also apply to the interpretation of the Constitution. Since, until its amendment in 1956t, section 3 (58) of the General Clauses Act did not define "State" as including Union Territories for pur- poses of interpretation of Art. 54, the Union Territories cannot be treated as includ~d in the word "State". The second reason why it must be held that members of Legis- latures of Union Territories cannot form part of the electoral college under Art. 54 is that that Article confines the elect.:>r:ll cc;>llege to members o.f Legislative Assemblies of the States aud there are no Legislative Assemblies in the Union Territories. Under Art. 168, for every State there is to be a Legislature which shall consist of the Governor, in certain States two Houses, and in some other States one House. The Article further lays down that, where there are two Houses of Legislature, one is to be known as the Legislative Council and the other as the Legislative Assembly and, where there is only one House, it is to be known a9 the Legislative Assembly. IOn the face of it, only members of Houses known as Legislative. Assemblies under Art. 168 can be members of the Electoral College under Art. 54. In the case of Union Territories, the provision for Legislatures is contained in Art. 239A, . but that Article does not mention that any House of the Legisl:~ure created for any of the Union Territories will be known as a Legislative Assembly. All that Article lays down is. that Parliament may, by Jaw, create a body, whether elected or partly nominated and partly elected to ;function as a Legislature for the Union Territory. Such a Legislature created by Parliament is not a Legislative As~embly as contemplated by Art. 168 or Art. 54. Members of Legislatures createa for Union Territories under Art. 239A cannot, therefore, be held to be members of Legislative Assemblies of States They were, therefore, rightly excluded from the electoral college, so that the iss).le are decided against the election petitioners. Issues Nos. 9, 9A and 10 in Election Petition No. 5 of 1969. The nomination paper of Shri Phul Singh, petitioner in this election petition, was rejected on the ground that his nomination paper was not signed either by a proposer or a seconder, so that the nomiTlation paper did not comply with the requirements of section 5 (2) of the Act and was liable to be rejected under Rule 6 ( 3) of the Rules. This petition was argued by Shri Phul Singh in person, and the only argument that was advanced by him was that section 5 (2) of the Act, requiring that there must be a nomi- nation signed by two electors as proposer and seconder, is ultra c c S. K. SINGH v. SHRI V, V. GIRl (Bhargava, /,) vires the Constitution. According to him, he possessed all the qualifications for being a candidate laid down in Art. 58. He had proved that he was an elector registered in a Parliamentary comti- tuency by producing a certified copy of the entry relating to him in the electoral roll. He had also produced a certificate that he had resigned from government service and was not holding an office of profit under the Government. He relied on the electoral roll to show that he was a citizen of India. He also produced a copy of his High School certificate showing that he was not less th~!' 35 years of age. In these circumstances, according to him, his nomination paper could not be rejected on the ground that he had not been nominated by two electors as proposer and seconder. On the face of it,Jlis argument that section 5 (2) of the Act contra- venes Art. 58 or any other Article of the Constitution has no fore~ at all. Section 5 ( 2) of the Act was enacted by Parliament in exercise of its power of regulating all matters relating to or con-· nected with the election of a President or Vice-President artd, in exercise of this power, Parliament was fully competent to lay down how a candidate, otherwise qualified, must becom~ a candidate by seeking nomination by two electors and to prescribe the detailed subsequent procedure leading up to the polling and declaration of _result. The requirement laid down by Parliament that every per- son must be nominated by two electors as proposer and seconder is a reasonable requirement relating to regulation of election to the office of a President and cannot be held to be a curtailment of the right of a qualified candidate to stand as a candidate under Art·. 58. In these circumstances, the ground, on which the election petition has been filed, fails and, consequently, the petition is liable to be dismissed. Issue No. 8 in Election Petitions Nos. 4 and 5 of 1969. This issued was raised by the petitioners on the plea that Part Til of the Act, which includes section 18, ls ultra vires Art. 71 ( 1) of the Constitution, so that the petitioners are entitled to challenge an election of the President on groun4; other than those mentioned in section 18 c.f the Act. This contention fails in view of the finding o~ Issue No. 5 that Part Ill of the Act is not ultra vires Art. 71 of the Constitution and that Parliament did not act con- trary to the provisions of the Constitution in limiting the grounds of cha.llenge ~f ·an election in an election petition by enumerating them m section 18 of the Act. Consequently, the first part of Iss~~ No. 8 has to ~ answer~d in the negative, holding that the petitioners are not entitled to dispute the election of the respondent on grounds other than those mentioned in section 18 of the Act. The ~ther parts of the issue, as a consequence, do no~ arise at alL The ISsue IS answered against the petitioners. (1971) 2 S.C •. L·. Issues Nos. 9, 9A ~ 10 in -Election Petitit,; No. S ott969. . A These issues oare based on the allegations made in·parag~pl( 15 / … of the petition in which there is, iifst, a general chat:g( th'a:t the' offence of bribery. was. freely comnutted at the electiO.l}. by the supporters of· the respondent (returned candidate), with his con· nivance, wi~ the object of inducing the electors to exercise their · vote in favour of the respondent. With this object, gratification · was offered and given to thep1. This general allegation is follow- ed by a specific instance in which it is mentioned that a liceuce for setting U!' an industry in Polyester Fibre was to be granteJ by the Go~ernment of India. The Punjab State Government also applied for the licence. The licence, was, however, refused to the public sector and was, instead, granted to a private limited company m which Shri Sita Ram Jaipuria, a Member of th~Rajya Sabha. who was also an influential elector, had financial interest. It was alleged that this licence was granted to the Company as .a gratifi-. cation with the object of inducing Shri Sihl. Ram· J dipuria and the electors under his influence to exercise their vote in favour of the respondent and against Shri Sanjiva Reddy, in whose favour they were intending to vote earlier. According to the petitioners, this licence was granted during the election period. A further allega- tion ~~s ·made . that one Shri Kanwar Lal Gupta, a Member of ~"Parliament, wrote a letter to the Election Commission s~ating that · money was. being offered to some members to v<?te for the respon- dent; and, lrom this, it was alsq,clear that the offence of bribery was r~pant during the elections. · ' · r. So far as this second allegation relating to the letter of Shri Kanwar Lal Gupta, Member of Parliament, is concerned, no evid· ence was allowed to be tenderecl on it on behalf of the petitioners, because the allegation was it: a very general fonn stating that the . offence of bribery was rampant; and this pleading was also based solely on a letter written to the Election Commission. No specific · F instances were 'cited and no particulars were given. On the face of it, a general allegation that bribery was rampant in the elections pould not be made the subject-matter of a specific charge of coni- mission of offence of bribery. Evidence was allowed to be led on the first charge which, if the ., facts had been proved to be true, could possibly constitute the offence of bribery. If, in fact, the licence had, been granted to ·a private limited company with the specific purpose of obtaining the vote of Shri Sita Ram Jaipuria, an elector and a Member of Parliament, for the respondent, that could constitute bribery. · .However, from the evidence led on this issue on behalf of the peti- tioners themselYes, it appe:ars that no case at all of commission ·of the offence of bribery ·during the election period could possibly be established; and that appears to be the reason why, when argu· s. L SINGH v. simi V, V, GIIU (Bhargawz, ],) A . menta M Jaeud by the Court after the evidence had }leen reco~ cd, couusel for the petitioners did not even try to argue that this oftence ol bribery had been ~tablished.. The. then Chief ~ter .of Punjab, Sar~ Gumam Smgh, and the Director of lndu:strtesi Punjab, were examined as witnesses on behalf of. the petitioners to . prove that an. application for grant of the licenc~ for Polyester Fibre Factory was sent to the 'Central Government on behalf of the c · Industrial Development Corporation which was a public limited concern;<>wned by the Punjab Government. · The petitio~ers also exami~cd the Director of Industries, U.P., the Registrar of Com- panies, U.P., and the Secretary of the Swadeshi Cotton Mills Ltd., Kanpur, to prove that an application was ~o presented 'for ,the licence for the same factory on behalf of Swadeshi Cotton Mills in which Shri Sita Rain J aipuria holds shares in his OWn name and 1 a large number of shares are also held by his wife, his children, and other clos1 relatives. The Secretary to the Government of India, MinistiJ of Industrial Development, and the Under Secretary to the Go·t~ernment oi India, Ministry of Petroleum and Chemicals, were also produced as witnesses and they proved the fact that the licence for the Polyester Fibre Factory was granted in favour of Swadeshi Cotton Mills in preference to the public sector company,· the Industrial Development Corporatio~ owned by the · Punjab .Government. The evidence of the latter two witnesses-also, how- . ever, proved the' circumstances in which the lic.ence was granted to the Swadeshi Cott0n Mills, Kanpur, disregarding the claim of the Industrial Development Corporation Otf Punjab. According: to the evidence of these two witnesses, the procedure obtaining . is I' that all ap_Pl,ica~ions for such li~nces are first pro~ssed in ~e relevant Mmistnes and are exammed and completed 1f any futther material is to be obtained. The Administrative Ministry, _which in this case was the Ministry of Petroleum and Chemicals, prepares · a note showing the various factors relating to each application which require to be taken into consideration. Thereafter, these applications come up for consideration before a sub-committee of the Licensing Committee o.f the Government of India. · The Licensing Committee is a large body which includes amongst ·its members Secretaries of various Ministries as well as representatives of Sta!e Governments…_ This ~ommitt~e-'l,I.QOi?~ s~b–committees G . for hcences concerned . w1th specili~::~·:hrustnes of the Goverilii_lent. In the / cas~ . of the .-,P61yster Fibre Fact9ry, the meetmg of. f!le sub–coitlJptttee took pll:!ce o~ the 7th July, 1969 when the declSlon was taken to grant the licence to Swadeshi Cotton Mills, Kanpur. In accordance witb the rules, this decision· of the sub-committee was submitted to 1M_ Minister in charge of the Ministry of Industrial Development :who~ ·gave his approval in the second week of July. It was~ wbsequently that a letter of intent for granting the licence to Swadeshi Cotton Mills was issued on behalf of the Government of India . on- 24th July, 1969. According to the procedure prevailing, any parties, who were claimants for licence and whose claims were rejected, had a right to make a representation after the issue of the letter of intent and their representation had to be considered by the full Licensing Committee. The meeting of the full Licensing Committee was actualy held on .the 13th November, 1969. At this meeting, representatives of the U.P. Government as well as the Punjab Government were present and they argued the cases on behalf of the two parties from their States, viz .• the Swadeshi Cotton Mills Ltd., Kanpur, and the Industrial Development Corporation, Punjab. It appears that it was on the basis of the fact that the letter of inJ:ent was is~ued on 24th July, 1969 that this charge of bribery was put forward by alleging that the licence was granted to Swadeshi Cotton Mills during the election period. As has been indicated.,'arlier, the decision about the grant of licence to Swadeshi Cotton Mills was taken by the sub-committee on the 7th July, 1969, and even the Minister in charge of the Ministry of Indus~rial Development gave his approval in the second, week of July. The candidature of Shri Sanjiva Reddy for· the office of the President · was decided upon by the Parliamentary Board o,f the Congress on 12th July, 1969, and the respondent announced his candidature for the first time on 13th July, 1969, which was the last but one day before the close of the second week of July. On the face o: it, the grant of the licence to Swadeshi Cotton Mills could not possibly have any relation to the candidature of either Shri Sanjiva Reddy or the respondent for the offi..ce of the President, and it is impossible to accept that the licence was granted to Swadeshi Cotton Mills for the purpose of inducing Shri Sita Ram Jaipuria to vote and exercise his influence in favour of the respondent. The grant of the licence was in due course in accordance with th~ procedure prevailing in the Ministry of the Government of India and had no relation at all with the candidature of the respondent for the office of the President which, in fact, was announced after that decision had already been arrived at. Consequently, the con- clusion follows that no offence of bribery was committed in the matter of grant of licence for the Polyester Fibre Factory to Swadeshi Cotton Mills; and this ground for setting aside the elec- tion of the respondent, therefore, fails and is rejected. Issue No. 4(a), (b) & (c) in Election Petitions Nos. 4 and 5 of 1969. c This issue relates to the challenge to thr vt :~dity of the election of the respondent on the ground of c~mmi~ . .;)n of a number ?f offences of undue influence under section 18(1)(a) and (b)(1) of the Act which lays down that, if the Supreme Court is of oplllion- ( a) that the offence of bribery or undue influence at the election has been committed by the returned c S, K. SINGH v. SH.Rl V, V. GIRl (Bhar~ava, J.) (b) . candidate or by any person with the connivance of the returned candidate; or that the result of the election has been materially affected- (i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance, the Supreme Court shall declare the election of the returned candidate ~o be void. Section 18 (2) gives the definition of the words "bribery and undue influence" by laying down that, for tht: purposes of this section, the offences of bribery and undue influ- ence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code. In the Indian Penal Code, section 171 C which defines "undue influence" is as follows :- "171 C. (1) Whoever voluntarily inter,feres or attempts to interfere with the free exercise of any elec- toral right comm~ts the offence of undue influence at an election. (2) Without prejudice to the generality of the provisions of sub-section ( 1), whoever- . (a) threatens any candidate or voter, or any person in whom a candidate or voter is inte- rested, 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 oi the elc~ctoral right of such candidate or voter, within the meaning of sub-section ( l ) . (3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right with- out. intent to interfere with an electoral right, shall r.ot 'be deemed to be interference within the meaning of this section." To appreciate the significance o.f this definition, reference may also be made to clause (b) of section 1171 A which defines "electoral right" as meaning the right of a persun to :~tand, or P-Ot to stand as. or to withdraw from being, a candidate or to vote or refrain from voting at an election. The definition of "undue 9L308Sup. Cf/71 influence" ~lso uses the word "injury,. in section 171C(2)(a), and this word has also been given a special meaning under the Indian Penal Code, having been defined in section 44 as denoting "any hann whatever illegally caused to any person, in body, mind, reputation or property''. In orde,r to decide whether the various a1legations made in the two election petitions do constitute the collllilission of the offence of undue influence, it is necessary to .understand properly what acts constitute undue influence as defined in section 171 C of the Indian Penal Code. Sub·section ( 1) of section 171C, in general terms, mak.es any act an undue intlue.n~.:~; ii it .i:ntetferes 01 attempts ttl interfere 1 with the free exercise ofany electoral right, a~d if it is ~ommitted voluntarily. Th~ question has arisen what acts ·can be .c held to inthfere with the free exercise of an electoral right. We are here concerned with the electoral right of a voter which, according to the definition in s. 1 71A ('b), is the right to vote or refrain from voting. Undue influence can be. held to be commit- ted if . the person charged with the offence inte~res or attempts w· interfere with the free exercise of this right of voting or refrain· i ng from voting. When an elector exercises the right of vote; .it can be en~isaged that he goes through the niental pro~ess of first taking a decision that he wiJl vote in favour of a particular candi- date and, thereafter, having made up his mind, h~ has lo go and exercjse that electoral right by casting the vote in favour of the <.:andidate 'chosen by him. The 13jllguage used in section 171C 'E indicates that the offence of undue infi.uence comes in at the second stage when the offender interferes or attempts to interfere with the free exerci;se of that choice of voting in accordance with the deci- sion alreaqy taken by the voter. It, therefore, follows that, .if a;ny acts are done which merely influence the voter in making his choice 'hetween one candidate or another, they will not amount to Jnt~· fcrence with the free exercise of the electoral right. . In fact, all canvassing that is carried on and which is considered legitimate is . ·· · intended to influence the choice of a voter at the first stage and that is q~.,tjte permissible. Once the choice ha.~ been made -by a voter, there should be no interference with the free exercise by him of that choice by actually casting the vote, or, in the alternative, there may be a case where a voter may decide that he will not vote for any candidate at all, but' some acts are done which compel him to cast his vote. It is in such cases that the offence-of undue influence will be held to have been committed. The language used in the definition of ''undue influence" implies that an offence of undue influence will be held to have been committed if the elector~ having made up his mind to cast a vote for a particular candidate, does not do so because of the act of the offender; and this can only be if he ~s under a th1eat or fear of some adverse consequence. When~ver any threat of adverse consequence is given, it will tend S. K. SINGH V. SHR.I V. V, GUll (Bhargava, i.) to divert the elector from freely eiercisi,og bis electoral right by voting for the candidate chose~ by him fot the purpose. In a case where the voter is threatened with an injury as defined in the Indian Penal Code. it has to be deemed under section 171 C( 2) (a) that it interferes with tbe free exercise of the electoral right of the voter; and the same applies if the elector is induced or attempt is made to induce him to believe that he or any person in whom be ia interested will become or will be rendered an o~ject of Divine displeasure or of spiritual censure. In the first case~ under· clause (a), it is a temporal_harm illegally caused to the person. in body, mind~ reputation or property, while~ in the second case .. under clause (b), the interference is because of the fear of becom· ing an object of Divine displeasure or of spiritual censure. There· can, however. be cases where the threat may not be of an injury as defined · section 44, I.P.C., where the harm caused must be illegal. Cases can arise where there may be no illegality ;n the threatened consequence to the voter and, yet, it may interfere with the free ex:ercise of his right ro vote. An instance that can be c cited is where a father may threaten to disinherit his son in respect of property solely owned by the f~,tther unless his son voted for a particular candidate or refrained from voting for some other candidate. The consequence of non.compliance with the wishes of the father would be the loss of inheritance to the son which is. not an injury as defined in section 44, I.P.C. Such an attempt by the father would clearly amount to exercise of undue inftuence· by him on his son. But, in cases where the only act done is 'for the purpose of convincing the voter that a particular candidate is. not the proper candidate to whom the vote should be given, that act cannot be held to be one which interferes with the free exercise· of the electoral right. It has. however, been argued that there may be a case where such virulent propaganda may be carried on against a candidate as may cloud the mind and judgment of the voters and alm0$t compel them to come to a decision that they should not vote for that particular candidate. It was urged that, in such a case, it should be held that undue influence was exercised on the voters. In considering this proposition, various aspects have to be kept in view. The first is that, if it is held that propaganda adverse to a c~didate can am?unt to un~ue in~uence, it will be almost impos- sible to d.raw ~ line and ddferenh~te between legitimate propa- ganda which w11I amount to undue mfluence, and that which will not. Then comes the question of the reverse type of propaganda where a particular candidate is so highly praised Jhat voters are influenced to the extent of considering him an excellent person well above all other candidates; and the question will be whether such an inftuence on the mind of a voter can be held to be undue influence. More important than an these aspects. is -the scheme of – ··(' the law and the language used in it which, in my opinion, very clearly show that mere propaganda against a candidate cannot be held to be exe-rcise of undue influence. The word "free" is used in section ' 171C, I.P.C., as qualifying "exercise" and not as qualifying the word ''vote". H undue influence had been defined as interference with the exercise of free vote, possibly the definition COUld have been construed as indicating that influence brought (JD the mind of a voter so as to change the manner of his voting by affecting his choice and judgment in seleCting the candidate for whom .lle ~s going to cast hiS vote, would b.e. comprised within undue influence. The word "freen having been used as qualifying the word "exercise" gives the indication that the freedom envisaged is to cast ihe vote in accordance with the· choice already arrived at and, if such freedom of casting the vote in that manner is inter- fered with,! the offence of undue influence will be held to have been .committed. In Words and Phrases, Pennanent Edition, Vol. 17 A by WC$t Publishing Company, the meaning of tbe word "free" in · various contexts accepted in America has been given, and the rele- vant meaning which can assist is in the following words :- "Within the constitutional provi~ion, elections are "free" when the voters are subjected to no intimidation or improper influence, and whenever .every voter is allowed to vote as his own judgment and conscience dictate." This meaning clearly indicates that the question of freedom actuaJly arises at the stage when a voter ::.1as already exercised his judgment and conscience, has decided which candidate he will vote for, and is then allQwed to cast his vote freely without any interference in the fonn df intimidation or improper ilnfl.uence. A very important aspect in considering this argume~t is that whatever meaning is given to the expression "undue influence" in the Act will also apply when interpreting the provisions of the Indian Penal Code, because the Act imports the definition of "undue influence" from section 171 C of the Code. In the Indian Penal Code, a new Chapter IXA was introduced by the Indian Elections Qffences and Inquiries Act 39 of 1920. The statement of objects and reasons attached to the Bill which culminated in that Act e~plained this provision by stating that : "undue influence at an election is defined as the voluntary interference or attempted interference with the right of any person to stand, or not to stand, or withdraw from being, a candidate, or to vote or refrain from voting. This covers all threats of injqry to person or p~operty and alJ iJiegal methods of persuasion and c S. K. SINGH v. SHRI V. V. GIRl (8hargava, /.) any interference with the liberty of the candidates or the ele~tors." The language used in aection 171 C was, thus, intended to oover only cases where the interference comes at the stage when the elector must have liberty to cast his vote freel.y, having already made up his mind bow that vote is going to be cast. It is inter- ference at this stagtj that was envjsaged as amounting to undue influence. The subject of influence a_t the stage of making a choice was dealt with in Chapter IXA of the Indian Penal Code under a separate and distinct provision which is contained in section 171-G and is as follows :- ''Whoever with intent to affect the result of an election makes or publishes any statement purporting to be 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." This section clearly recognises that, at elections, there is bound to be propaganda in which candidates or their supporters may be issuing statements so as to influence the voters against their rival candidates, and it limits the prohibition by law to only thole state- ments of fact which are false, or. believed to be false, or believed not to be true, in relation to the personal character or conduct of any candidate. Propaganda can be not only by attacking the personal character or conduct of a candidate, but even his political or public character and activities. On the face of it, section 171 G envisages that propaganda of the latter type will not be treated as an offence. Only when the propaganda is in the form of false statements of fact relating to the personal character or conduct of the candidate that the law will punish the person indulging in it by making him liable to payment of fine. These false statements about the personal character or conduct of the candidate may, of course, be scurrilous and foul; ·but, even then, the offence commit- ted would fall under section 171G, I.P.C., which makes the offence punishable with fine only. On the other hand, an offence of undue ·influence <lS defined in section 171C, I.P.C., has been made punish- abe under section 171F, I.P.C., with imprisonment of either description for a tenn which may extend to one year or with fine, qr with both. If it is held. that false propaganda against personal character or conduct of a candidate can amount to undue influence, the person indulging in that propaganda would become liable to punishment under section 171F, I.P.C., which has been considered a more serious offence by being made punishable with imprison- ment in addition to, or, in the alternative, with fine. This"inter- .324 pretation would thus make section 171G, I.P.C., totally ineffective and . otiose. If the false statements as to personal character or conduct are held to be punishable under sectior. 171F ·as constitnt· ing offence of undue influence, there would be no point in prose- .cuting the same person for the less serious offence under section 171G. In fact, section 171G would be fully covered by section I 71F and, consequently, the interpretation sclight to he urged in n these petitions has to be rejected. f It is true that, in the Act, there i:; no provision indicating that punlication by a candidate, or by any other person with his con- nivance, of a statement of fact which is false in relation to the personal character or conduct of another candidate will be deemed to be a corrupt practice on the commission of which an election can be declared void. Such omission in the Act cannot. how.;:ver. be a good n>:ason for enlarging the meaning of the offence of undue. influence so as to hold that an election of a President or Vice- President must also be set aside On such a ground. h may be noticed in this connection that, in the Representation of the People Act, 1951, there is a specific provision contained in section 123 ( 4) laying down that a corrupt practice is constituted by the publication by a candidate or his agent or by any other person. with the con- sent of a candidate or his election agent, of any statem.:nt of fact which is false, and which he either believes to be false or dol!s not believe to be true. in relation to the persona] character or cond•Jcl of any candidate, or in relation to the candidature, or withdrawaL or any candidate, being a statement reasonably calculated to pre· judice the prospects of that candidate·s election. In the Represen- tation of the People Act, 1951 also, undue influence i'> defined in almost the same language as that contained in section I 71C, l.P.C. In that Act, therefore, an election can be declared void not only ·On the ground of commission of the corrupt practice of undue influence, but also on the ground of publication of false propa~anda as to the personal character or conduct of a candidalc. Parlia- ment, however, chose not to include any such provision in the Act which was passed when the Representation of the People Act. J 95 I had already been enacted and enforced. The Court is not concemed with the reasons which weighed with the Parliament in making such an omission in the Act when a similar provision had been kept in the earlier enactment in respect of elections to the Central and State Legislatures. The omission may be. deliberate or accidental, but, in either·case, it is not for the courts to .attempt to fill up this gap bv enlarging the meaning to be given to the expression "undue influence" which is the corrupt practice incJuded in the Act as a groun<i for setting aside the election. lt is clear from the scheme o.f Chapter IXA of the Indian Penal Code that false propaganda as to the personal character and conduct of a c c S, K. SINGH V, SHRI V. V, GnU (8harg(i1111, J,) 32~ candidate was created as a separate offence and the definiti0n given in section 171 C of "undue influence" was not intended to lay down that such propaganda will amount to interference with the free exercise of electoral right so as to constitute undue influence. The only case ~f this. Court dealing with the questi.Jn of undue influence under the Act is reported in Shrl Baburao Patel & Other~· v. Dr. Zakir 'Husain & Others(l), where the Court had to con- sider the distinction between canvassing and exercise of undue influence and held- "It is difficult to lay down in general terms where mere canvassing ends and interlercnce or attempt at interference with the free exercise of any electoral right begins. That is a matter to be determined in each case; but there can be no doubt that, if what is done is merely canvassing, it would not be undue influence. As sub~ section ( 3) of s. 171-C shows, the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence." The Court, after reviewing the relevant case law under the Repre- sentation of the Peop.!e Act, then proceeded to hold:- "It will be see·n from the above review of the case!i relating to undue influe-nce that it has been consistently held in this country that it is open to Ministers to can- vass for candidates. of .their party standing for eJection. Such canvassing does not amount to undue influence but is proper use of the Minister's right to ask the public to support candidates belonging to the Minister's party. It is only where a Minister abuse& his position as sucll and goes beyond merely asking for suppon for candi~ dates belonging to his party that a question of undue influence may arise. But so long as the Minister only asks the electors to vqte for a particular candidate belonging to his party anq puts forward before the · public the merits of his candidate it cannot be said that by merely making suc.h reques.t to the electorate the Minister exercises undue influence. The fact that the Minister's request was. addressed in the form of what i~ called a whip is also immaterial so long as it is ~lear that there is no compulsion on the electorate to vote in the manner indicated." ln that case, the Court thus envisaged that the question of undue 1nfiuence will arise if there is some sort of compulsion on the elec- torate to vote in the manner indicated by the person alleged to (1) [1968] 2 S.C.R. 133. (1971] 2 S.C.R. have committed that corrupt practice, and a question of such com- pulsio~ can obviously arise only when a voter, having made his choice as to the person for whom he wilt cast his vote, is under some pressure to vote for another candidate owing to the undue . influence exercised on him. The nature of interference, which would constitute undue influence, was further clarified when deal- ing with the letters issued by the Chief Whip of ~he Congress Party requesting members not to cast their second preference vote, by stating:- "Such a request or advice does not, in our opinion, interfere with the free exercise of their electoral right. for the electors still would be free to do what they desired in spite of the advice.·· The Court, thus, envisaged that 1 . .mdue influence is exercised whe11 an elector is not free to do what he desires, while influencing his desire will not be exercise of undue influence. It has already been indicated above that the scheme of Chapter IXA of the lndian Penal Code and section 123 of the Representation of the People Act is quite similar inasmuch as, in both these enactments. undue influence is defined in almost iden- tical language and the publication of false statements as to the personal character ·of a candidate has been separately made either a criminal offence or a corrupt practic.~ ]n practically the same language. Consequently, some assistance can be derived from th~ jnterpretation that has been given to the provisions cont~ined in ..;e.ction 123, sub-section (2) and ( 4) of the Representation of the People Act, 1951. Dealing with this aspect in the case of Ram Dial v. Sam Lal aizd Others(l), this Court first pointed out that the law in England relating to undue influence at elections is not the same as the law in India and, consequently, proceeded to inter- pret the law here without taking into account tht> principiM Jaid down in England. In that case, the question arose whether, what a religious leader had done by issuing a Hukat11 or Farman, :.1mounted to undue influence or not. The Court held' :- "There cannot be the least doubt that a religious leader has the right freely to express his opinion on the comparative merits of the contesting candidates ·and t0 canvass for–such of them as he considers worthy of the confidence of the electors. In other words, the religious leader has a right to exercise his influence in favour of any particular .candidate by voting for him aPd by can- vassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a course of conduct on his part will only be a use (1) [ 1959 I Suool. 2 s.C'.R. 7dR. I • l II c .F S, K. SINGH V. SHlli V. V. GIRl (Bhargava, 1.) of his great inftuence amongst a particular section of the voters in the constituency; but it will amount to an abuse of his great infiuence if the words he uses in a document, or utters in his speeches, leave no choice to the persons addressed by him, in the exercise of their electoral rights. If. the religious head had said that he preferred the appellant to the other candidate, because, in his opfuion, he was more worthy of the confidence of the electors for certain reasons, good, bad or indifferent, and add- ressed words to that effect to persons who were amenable to his influence, he would be within his rights, and his influence, however great, could not be said to have eeen misuse&. But in the instant case, as it appears, accord- ing to the findings of th~ High Court, in agreement with the Tribuna-l, that the religiou:; leader practically left no choice to the Namdhati electors, not only by issuing the hukam or farman, as contained in Ext. P. 1, quoted above, but also by his speeches, to the effect that they must vote fer the appellant, implying that disobedience of his mandate wCiuld carry divine displeasure or spiritual censure, the case is clearly brought within the purview of the second paragraph of the proviso to section 123(2) of the Act." In that. case, thus, the CQurt envisaged that the 'Hukam' or 'Farman' issued by the religious leader was a mandate, the dis- obedience of which would carry divine displeasure or spiritual censure, and it was for this reason that it was held that corrupt practice of undue influence had been committed. In the case of1nder Lal v. Lal Singh(!), this Court explained the scope and purpose of sub-s. ( 4) of section 123 of the Repre- sentation of the People Act by pointing out that, for the protection of the constituency against acts which would be fatal to the free- dom of election, the statute had provided for the inclusion of the circulation of false statements concerning the private character of a candidate amongst corrupt practices, and dissemination of false statements about the personal character of a candidate had been constituted inl:o a corrupt practice. This corrupt practice was envisaged as separate and distinct from the corrupt practice of und~Je influence mentioned in section 123(2) of that Act. In the case of Lalroukung v. Haokholal Thangjom and Another(2), this Court dealt with a case where there had been an assault close to the polling station after certain pamphlets had been issued, wherein thtWtts were freely canvassed and exhorta- 1 I l [1962) Suppl. 3 S.C.R. Jll4. (2) Civil Appeal No. 13!5 68 1kcided on 9.1.69. 1iolli made that those, who opposed the candidates supported by lhe two organisations (which issued the pamphlets), would not be .forgotten nor spared. The Court then proceeded to hold :- "In the light of propaganda of this nature carried on before the polling days, it i~ impossible to view the assault as an isolated incident nor can it be legitimately argued that the conclusion of the Judicial Commissioner that it was a culmination of those threats was either ari unreasonable or an unwarranted conclusion. There .can be no doubt that such rowdyism at a polling station was b<)und to deter voters from coming to the polling station to exercise freely their franchise. We have no doubt that the assault by the appeUant's pol1inl agent attractw section 123(2), proviso (a), and that also rendered the election void.,. This was again a case where the exercise of their· electoral right by :t~c voters was interfered by physical act of assault and threat on voters who ·intended to vote for the rival candidate. The last case of this Cout1 which may be referred is the deci- sion in Manubhai Nandlal Amersey v. Popatlal Manilal Joshi and .Others(!), in which the effect of a speech came up for considera- tion and it was held:- "The actual effect of the speech is not m<'!.;;rial. Corrupt practice is committed if the speech is calculated to ·interfere with the free exercise of electoral right and to leave no choice to the ~lectors in the matter. In considering the speeches, the status of the speaker and the character of the audience are relevant considera- tions." This case also. thus, envisaged that there must be some element of compulsion on the voter to vote in a particular manner before the act said to be a corrupt practice can be held to amount to undue influence. c Coming to the decisions of the High Courts, the first case that may be cited is the decision of the Orissa High Court in Radha- kanta Mishra v. Nit.vanantfa Mahapatra and Anothere). Bammn. J .. explained undue influence in the following words :- "A voter must be able to freely exercise his electoral right. He must be a free agent. All influences are not necessarily undue or ufdawfu1. I•gitimate exercise of influence by a political party or association or even an n I A.I.R. 1909 S.C. 734. !21 19 E.L.R. :!03. f 4 . S, K. SINGH v. SHRl V. V. GIRl ( 8/wrgll\'t/, .1.) individual should not be confused with undue in- ftuence. Persuasion may be quite legitimate <tnd may be fairly pressed on the voters. On the oth~r hand, pressure of whatever character, whether acting on the fears, threat, etc .. if so exercised as to over-power the volition without convincing the judgment is a speck~s of restraint which interferes with the free exercise l)f elec- toral right. In such an atmosphere. the free play of the elector's judgment, discretion or wisht!s is overborne and this will constitute undut.: influence, though no force is either used or threatened. It is not necessary to esta- blish that actual violence had been used or even threatened. Methods' of inducement which are so powerful as to h:ave no free will to the voter in the exercise of his choice may amount to unJue influence. lma$inary terror may have been created sutlicient to depnve him of free agency.'' He, thus, distin~uished between influence which is exercised for convincing the JUdgment of a voter, and influence ,he result of Which i.s that the free play of the elector's judgment, discretion or wishes is overborne and the elector is left no free will to exerci'c his choice. In this decision, thus, the distinction, as indicated above, is clearly brought out. In that case, however, a picture with a caption had been published as a part of a cover of booklet. and it was held that its publication amounted to exercise of undue influence. The reason is indicated when the learned Judge, .deal- ing with this poster, held :- "The picture with the caption, as it stood, wa~ intended to be made catchy with an ulterior motive and was · deliberately published in that asked fom1 in order to create a feeling of terror. fear and hatred and wa~ such a compelling appeal to the mind of the voters as to amount to interference with the free exercise of voters' electoral right." The picture in question showed a dead boy with a caption in Oriya which, translated in English. was to the effect: "Do not vote fo_r the Congr~s who killed Sahid Sunil". That picture. thus, dtd not contam any false statement or reJ'resentation as to the personal character of a candidate; but Bannan, J., held :- . "The picture of the dead boy wtth the caption was..-.. dtrect charge against the Congress that it killed the deceased boy. This was a misrepresentatin of fact. It was as a result of firing by the police that the boy unfortuna- tely got involved. We do not know whether the Congress Party took a stern view of the firing, whether the Congress J30 {1971] 2 S.C.R. Party itself condemned the firing, and whether ultima- tely those responsible for the firing were reprimanderl and punished for the unfortunate incident. The catchy caption that the Congress killed the boy was false repre- sentation made by the respondent No. 1 with intent to strike terror into the mind of the \'Oters and thereby to interfere with the free exercise of electoral right of such terror-stricken voters. The picture with the caption was a distortion of a situation for political ends done with the intention as aforesaid. It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in their mind a feeling of terror, fear, hatred or strong prejudice against the Congress. In the caption under the dead boy's picture was a veiled threat to the voters that if tbey voted for the Congress who were capable of killing, then such Congress, so retained in power, would again,-as it actually did in the past, resort to such killing of men in whic;h the voters themselves or their children might also. be killed in the same way as it was openly demonstrated by the picture of the dead boy with the caption. It at least did create or was likely to create or had the ten- dency to create terror and an unknown fear in the mind of the voters. The picture of the dead boy with the capt~on frightened the voters or was likely to frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the voters." It. will, thus, be seen that the main reason for holding tha~ the publication of the picture amounted to exercise of undue influence was that it created terror and fear in the minds of voters of per· sonal hann to themselves or their children in oase they voted for the Congress <;:andidate. The publication of the picture was not · held to be undue influence or interference with the electoral right because it contained false propaganda against the candidate M the Congress Party, but because 0f the element of compulsion which was envis<li@ed as arising in the minds or the voters not to vote for the Congress because of the fear of consequences which might be visted on themselves or their children in case they voted for the Congress. Bannan, J., in this connection. also referred to the decisions of .Election Tribunals in Sardul Singh v·. Hukam Shixh(l_), and Jujhar Singh v. Bhairon Lall(!) and agreed with. the prindples laid down in those cases. I shall indicate later the (I) n E.I..R. 316. C1' 7 E.U~ . 45"'. r\ II :t' ·G S. K. SINGH v. SHRT V. V. GrRI (Sikri, J.) 33 l ratio of those two decisions. The other two Judges, constituting the majority, differed from Barman, J., and held that the publica- tion of the picture did not amount to undue influence, because, in 1heir opinion, no inference could be drawn that the publication of this picture was intended to create a fear in the minds of the voters. Rao, J., dealt with the submission of Mr. Rath, the coun- sel; that a looic at the photo will make the voter think that, if he votes for the Congress Party during whose office the killing took place, he would be similarly killed and therefore it created a fear in his mind and thus interferes with the free exercise of the elec- toral right. He rejected it by saying that, in his opinion, this was a farfetched argument. He further held :- "The picture simply represents Sunil De after be.ing shot at by the police firing with the caption underneath "Do not vote for the Congress who killed Sahid Sunil" It does not say that, if the voter give their votes for the Congress, all the voters or some of them would be shot as Sunil De. Further, the shooting of Sunil De · is known to everybody and that is on account of police firing in connection with the States Reorganisation Committee Report's disturbances, the voters therefore cannot be influenced to think by publication of this poSter that if they voted for the Congress they would be shot at like that. It is also significant that there is noth~ng mentioned about this poster in the election campaign in the booklet on whose cover the photo is printed. The respondent No. 1, therefore, could not have intended to cause fear in the minds of the voters by publication of exhibit 3 in order to interfere with the free exercise of their votes." Das, J ., dralt with this aspect as follows :- "Nothing- has been stated in the body of exhibit 3 relating to this picture. The picture simply represented a dead person after being shot by the police firing with the caption : "Do not vote for the Congress who killed Saheed (Martyr) Sunil". Nowhere it was stated if the voters gave their votes to the Congress they would be shot at as Sunil. The further fact is that Sunil De was shot at by the police firing in connection with the dis- turbance arising ou~ of the recommendations of the States Reorganisation Commission of which the electors had known before. Thus, the voters cannot be said to have been influenced to think that if they voted for the Congress they would be shot at like Sunil. Hence, in my opinion, the resoondent No. 1 could not have intended to cause any fear in the minds of the voters by [1971J 2 S.C..R. the above publication to constitute interference with the free exercise of the electoral right of the voters.'' The decisions by these two Judges are, of course, of no help; but, as indicated earlier, even the decision of Barman, J., is in line with the view taken above and does not indicllte that mere false propaganda as t9 the personal character of a candidate or even relating to the party sponsoring the candidate can amount to the corr:.~pt ·practice of" undue influence. t The next case which may be cited is another decision of the Orissa High Court in Abdul RaMman Khan v. Radha Kmshna Biswas Roy< ) . ln that case, the successful candidate had pub- lished a poem and the question aro~e whether the publicatiQn of that poem amounted to exercise of undue influence. The Court 1irst, in general terms, dealt with the scope of undue influence by saying:- c ··section 123 of the Act is rather wide in its term and contemplates four distinct forms of interference with the free exercise of any el.ectoral right. ~·iz., direct inter· ference. indirect interference. direct attempt at interfe· renee and indirect attempt at interference. There is nothing in· the definition that such intr.rference or attempt at interference should be by any method of compulsioo. Evidently. the offence includes such interference or attempt to interfere by any method, and it definitely in- eludes the method of inducement wherein there may not be any compulsion at all. The inducement again must be of such powerful type as would ]eave no free wiU to the voter in the exercise of his electoral right." 1l1is general explanation does not appear to be inconsistent with the view taken above, because it was held that. even if there be no compulsion at all, the inducement must be of such powerful type as would leave no free ,.,ill to the voter "in the exercise of his electoral right. The freedom of will envisaged. obviously. is to vote in accordance with his choice. On the facts in that case, it was found that. in the poem. there were threats against Raja of Kalahandi in whom the defeated candidate was interested. After referring to the Raja of Kalahandi. the objectionable portion read as follows :- "Without any consideration for your own and others, you acted as a devil. Would anybody now be able to save you if you are beaten mercilessly? Having done all the above mischiefs. now you are appealing to the electors ior their vote as a shameless person. If there ( J) A.I.R. 1959 Orissa 18~. c S. K. SINGH V. SHIU V. V, Gllll (Bhargava, J.) were a grain of shame left in you, yoo would not have pfO&ressed at all. You are a thief and a Badmas and you should not remain our land. You who belong to the Ganatantra party are only fit for the gallows." These words, clearly, contained a threat to the life and were, therefore, rightly held to amount to exercise of undue influence. Similarly, another portion was to the following effect : "The leudet,. of your Party wa'i making money by selling widows is well-known to the raiyas. Since there is not a bit of sense left in you, you are now seeking votes of these raiyats of Koraput. They will no longer be dissuaded by your words." 1t was further stated that : "the raiyats of this Constituency are bound to take revenge on you. How dare you ask for their votes?'' Again, the Court, in holding. that these publications amounted too cx:ercise of undue influence, was fully justified, because there were clcnr threats against the life of the candidate. The only other case of a High Court that requires to be uoticed is the decision of the Punjab High Court in Amir Chand Tota Ram, Delhi v. Smt S1tchef<1 Kriplani(l). The Court ex pressed its view by holding :- "The legal phrase ''undue inftuence·· denotes some- thing legal1y wrong or violative of a legal duty. In order to establish undue influence, it must be proved that the influence was such as to deprive the person affected of the free exercise of his will. It must amount to imposing a restraint on the will of another whereby he is prevented from doing what he wishes to do or is forced 1o do which he dtles not wish to do. An advice. argument persuasion or solicitation can· not wnstitute undue· influence. Honest intercession. even importunity, falls short of controlling a person's free exercis~ of his will. A persuasion. which leaves a person free to adopt his own course, is not undue influence. Otherwise a suggestion or an entreaty from :-omebody, held in esteem, could be treated as undue intluence. .In the absence of proof that a person has been. in consequence of the alleged influence, deprived of free agency no question of there being an undue influence arises. It is not objectionable to exercbe an influence by acts of kindnes"i or appeals to the free reason and understanding. So long as the free agenr:y of the other (II A.I.R. 1961 JR~. person is not prevented or impaired by obtaining a domi- nation over the mind of another, it cannot be deemed .as an exercise of an undue influence. The eSsence of ''undue influence' 'is that a person is constrained to do against his will, but for the influence he would have refused to do if left to evercise his own judgment. It has to be shown that a pers<'n's volition had thus been controlled by anc;>ther whereby he could not pursue his own .nclination, being too weak to resist the importunity and in view of the pressure exercised on his mind he could not act inteUigently and voluntarily and had become subject to the will of the other: who had thus obtained dominion over hl$ mind."' This exposition of the scope of .. undue influence" is also in Jine with the view taken above. It envisages that the corrupt practice of undue influence is committed when a person is constrained to do against his will and is J.mable to act in accordance with his judgment. Such a position can only arise if the influence · is brought on the person concerned after he has already formed his judgment and decided how he will exercise his efectoral right. Propaganda for the purpose of influencing the judgment, even If undesirable, cannot be held to be undue influence. Coming to the cases of Election Tritunals, the earliest case that needs consideration is the decision in Sardul Singh Caveeshar v . .Hulwm Singh and Others (supra). In that case, the Tribunal held:-. "It is not necessary that there shCluld be any actual threat or physical compulsion held out, but the method of inducement as may be adopted should convey ro the mind of the person addressed that non-~:ompliance with the wisbes of the person offering the inducement may result in physical or spiritual harm to himself or to any other person in whom he is i:iterested. Some fear of harm resulting from non-compliance \vith the request, thus, seems to constitute an essl~ntial element in "undur. influence". On behalf of tile petitioners, emphasis was laid on the deci~ sion of the Election Tribunal in Jujhar Singh v. lJhairon Lall & Others (supra). In that case, it was held :- c "It may be observed that an attempt to interfere by the method of compulsion is not necessary and that even the method of inducement may be sufficient, provid- ed it be o( such a powerful type as would leave no free c S, K. SINGH v. SHill V. V. Gllli· (Bhargava, /.) will t0 the voter -in the exercise of his choice. In other words. actual physical compulsion is not necessary, but, positive mental compulsion may be enough to give rise to an undue influence." After expressing this view, the Tribunal proceeded to hold that th~ publication of a particular poster amounted to exercise of undue influence. Referring to It, the Tribunal held :- "The poster was, therefore, clearly designed not only to catch voters for respondent No. 1, but, also, to over- awe voters, the majority of whom were men of no better intelligence than ordinary illiterate villagers and to create a feeling of positive prejudice, if not of terror as Well, in their minds against the petitioner." Reliance was placed primarily on the last ··part of this quotation where the Tribunal held that the creation/ of a feeling of positive prejudice in the minds of the voters can amount to undue influence. But this part of the sentence has to be read. in con- junction with the earlier part where a clear inference was drawn that the poster was clearly designed to overawe the voters. This was the reason why the Tribunal held that the publication of the poster amounted to undue influence, though, when defining undue influence in general, the Tribunal had clearly stated that the inducement must be of such a powerful typ~ as would leave no frc;e will to the voters in the exercise of his choice. In statin~ this principle, the Tribunal was clearly referring to the stage when, having made his choice, the voter wants to exercise it in accord- ance with his free wilt and that free will is interfered with. -The Tribunal's decision is also, thus, in line with the view taken above. The next decision of a Tribunal, on which reliance has been placed is in Radha Krishna Shukla and Another v. Tara Chand Maheshwar and Others(); but that decision appears to be of no help as, in that case, replying on a English decision, the Tribunal held that, before a threat can be said to amount to undue influence, the question must be put, was it a serious and· deliberate threat uttered with the intention of carrying it into effect, and proceeded to apply that test to the case before it. The Tribunal, therefore, dealt with a situation where there was c1early a threat to the voters. but even the threat in question contained in the slogan was held not to constitute corrupt practice, as there was nothing to show that the purpose of the slogan was to directly or indirectly inter- fere with any person's free ex~rcise of his electoral right. In A mrr Chand V. Smt. Sucheta Krivalani(2.)' the Tribunal, after quoting the definition of "undue influence" contained in (I) E.L.R. 37!1. 10–UO~SunCl'7 1 {2) I 8 E.l.R. 209. section 123(2) of the Representation of the People Act, 1951, held:- "The definition, no doubt, is in general tenns but it has an element of compulsion and it is an abuse of in· ftuence that wiH constitute undue influence". These remarks also do not go contrary to the view taken above. The last case that requires notice is the decision of a Tribunal in Kataria Takandas Hemrai v. Pinto Fredaick Michael(') in which it was said :- "A candidate, or as a matter of fact, any person has every right to persuade people to vote in his favour at the election anp in that respect he is further entitled to be even critical of the policy and the acts of the rival party or its candidate and that way it may as well be legitimate for them to influence the voters, provided they did not tra1nsgress the legiti.!)late bounds of criticism. It is only undue influence which can be taken exception of, and, even though that term is wide enough to cover any interference with the exercise of the electoral right. one can justifiably calt any act as an interference only when it has in it an element of compulsio11 so as to give way to free thinking in the exercise of the electoral rights of the voters." This case also, therefore, envisaged some element of compulsion as a result of which a voter is unable to exercise his electoral right in accordance with his judgment and choice. None of the decisions rendered so far by the Courts or Tribunals in India, thus; go conrrary to the view expressed above and, if at all. a majority of them are in line with it. It is in the light of this interpretation of what undue influence means that this Court has to proceed. further to see which of the allegations made in 'lhe present peti· tions can amount to charges of undue influence and whether they have been established so as to vitiate the election. The principal charge of undue influence, on which a mass of evidence has been led by the petitioners. relates to the publication of a pamphlet which contained scurrilous and vulgar allegations as to the personal character of Shri Sanjiva Reddy. ft is not necessary for me to set out the details of the contents of that pamphlet. It is sufficient to mention that. apart from allegations against Shri Sanjiva Reddy, there were no other allegations in it which could amount to a threat of any adverse consequence to any voter in case he cast his vote in favour of Shri Reddy. Even (1) 18 E.LR. 403. c c S. K. SINGH V. SHill V, V. Gllll (Bharga\'Q, /.) )n the evidence, no witness stated that, as a result of reading this pamphlet, he apprehended any adverse consequence either to him~ self or to anyone in whom be may be interested. No doubt, som~ witnesses stated that, on reading the pamphlet, they felt that, Shri Sanjiva Reddy is elected as President. the Rashtrapau Bhavan may become a brothel; but that also does not amount to a threat of a nature which would constitute undue influence as explained above. Consequently, the publication of this pamphlet cannot constitute undue influence, so that it is totally unnecessary to go into the question whether it was printed, published and dis~ tributed at all; if so, by whom, and, further, whether such printing, publicafon or distribution was or was not with the connivance of the respondent. As I have held earlier. in the Act there is no provision made for setting aside election on the ground of publica~ tion of false statements as to the perSonal conduct or character of a candidate even if it .affects his prospects in the election. so that no evidence need have been taken with regard to the printing, publication or distribution. of this pamphlet or with regard to the question as to whether there was any connivance by the respon- dent in its printing, publication or distribution. The challenge to the election of the respondent based on this petition fails on this preliminary ground. However, I may add that, having had the benefit of reading the judgment proposed to be delivered by n1y brother Sikri, J ., on these issues, I agree with his assessment of the evidence tende~ed by the parties and the findings recorded by him. These findings of fact are to the effect that, though the pamphlet was distributed by pt>st and in the Central Hall of Parliament. it has not been proved that this distribution was with the connivance of the respondent or that the distribution materially affected the result of the election. Consequently, even on the assumption that the publication of this pamphlet could constitute undue influence. the election of the respondent is not liable to be set aside. Apart from this ground· based on the pamphlet. a number of other instances of exercise of undue influence were also cited and relied upon in these two election petitions. These grounds have also been dealt with by my brother Sikri, J .• and some by my brother Mitter, J. I agree with their reasons and finding!. for holding that none of these charges of undue iniluence has been established, so that the challenge to the election of the respondent on the ground of exercise of undue influence fails altogether. I also agree w1th _the order directing parties to bear their own costs and the reasons for-that order given by my brother Sikri, J., in his judgment. Issue No. 7 in Election Petition No. 1 of 1969, · Issue No. 9 in Election Petition No. 4 of 1969, and Issue -No. 1.1 in Election Petition No. 5 of 1969. As a result of the findings on other issues, the petitioners in none of these petitions are entitled to any relief, as no ground has been made out for declaring the election of the respondent as void. Mitter' J. I have had the benefit of reading the judgments of my col~eagues. The facts leading up to the filing of' these -peti- tions and the is~ues settled therein have been set out in the judg ment of my learned colleague, Bhargava, J. I am in agreement with him in his conclusion on issues other ~an is~ue No. 4 in Election Petitions 4 and 5 of 1969. l regret t<;> have to differ from my other colleagues on this issue. As Petition No. 5 is more comprehensive than Petition No. 4 I prefer to refer to the allega- tions made in Petition No.-5 alone. Leaving out of account the technical grounds on which the election has been cha1l~nged, the petitioners have asked for a declaration that the election be declar- ed void on the following grounds : (a) that the o~ence of undue influ-ence at the election had been committed by –the returned candidate (hereinafter referred to as the 'respondent') _arid by his supporters. with the connivarce of the respondent as mentioned in paragraph 8 (a) and various sub-paragraphs of 13 (b) and (c) of the Petition. (b) The result of the election was materially affected by reason of the offence of undue influence at the ele-ction having been committed by_ persons mentioned in paragraph 13 of the petition. Undue influence is alleged to have been committed in diverse ways on various persqns details whereof are given hereinafter. Paragraph 13 of Petition No. 5 purports to give a summary c of the events which are alleged to have formed the background in which the off~nces were said to have been committed. Put briefly they are as follows : c S. K. SINGH V. SHRI V, V. GIRl (Mit,ter, J.) ( 1 ) After the demise of the late Dr. Zakir Hussain, the Prime Minister of India who was also an ·inftuential leader in the Cong· ress Party too~ the view that the respondent who was then the Vice-President of India should be adopted as the Congress candi- date for the office which had fallen vacant. This was not. acceptable to all her colleagues in the Congress . Parliamentary Board (hereinafter referred to as the 'Board')-a body which had in the past selected the party's candidate for tbe office of the Presi- dent. The controversy which thus arose could not be settled because of want of _unanimity of opinion and the matter was left to be decided at the Bangalore Session of the All India Congress Committee (hereinafter referred to as the 'Committee') to be held in July 1969. (2) No consensus being attained at the ineeting of the Board held in Bangalore on July 12, 1969 the matter was deci<ied by voting. The Prime Minister and Sri Fakhrudin Ali Ahmed voted for Sri Jagjiwan Ram while Sri Morarji Desai, Sri Y. B. Chavan, Sri S. K. P1til and Sri Kamaraj vo.ted in favour of Sri N. Sanjeeva Reddy. ( 3) The decision of the Board greatly upset the Prime Minis- ter and she then and there threatened the members of the Board that it would lead to serious consequences and· that she should not have been over-ruled in that manner. ( 4) The official announcement of the selection of Sri Sanjeeva Reddy as Congress candidate for the office of the President of India was made on 13th July 1969 and on the same day the res- pondent who was then acting as the President of India called a Press conference at Rashtrapati Bhavan whereat he announced his candidature for the office of t)le President. He issued a state- ment condemning the selection of Sri Sanjeeva Reddy as based on partisan considerations and emphasised that a candidate for the highest office in the land should possess character, integrity, patriotism, experience and a good record of service an.d sacrifice. According to the petitioner there was insinuation that the above requisite qualifications were lacking in Sri Sanjeeva Reddy. ( 5 ) Being upset by the decision of the Board·, the Prime Minister without a·ny consultation with her colleagues in the Cabinet advised the Acting President of India that she would withdraw the Finance portofolio from Sri Morarji Desai. Her advise being_ accepted Sri Morarji Desai was relie':led of his port- folio. She followed it up with the promulgation of the Bank Nationalisation Ordinance, a day before Parliament was to com- mence its session. This Ordinance was signed by the respondent acting as President. ( 6) On the 22ad July 1969 the Prime Minister proposed Sri Sanjeeva Reddy as a candidate for the office of the President of India which was duly seconded by Sri Swaran Singh, a Cabinet Minis~er. (7) The Prime Minister however expressed difficulty in issuing a written appeal in support of the candidature of Sri Sanjeeva Reddy. ( 8) At a meeting of the Board held on Augus.t 6, 1969 there was a joint address by the Priine Minister and the Congr~s Presi- dent, Sri Nijalingappa, in support of Sri Sanjceva Reddy's candi- dature. At this meeting the Prime Minister stated that she stood by the decision of the party while on his part Sri Nijalingappa said that he had been in contact with leaders of various opposition parties, namdy, the P.S.P., the S.S.P., the Jan Sangh, B.K.D. and others and that' the response in favour of Sri Sanjeeva· Reddy had been encouraging. (9) On August 9, an anonymous pamphlet in cyclostyled form and a printed pamphlet tfoth without the name of the pub- lisher or the printer were phblished by free distribution among the members of the electoral college for the Presidential election. In this the leaders of the party like Sri S. K. Patil, Sri Atulya Ghosh and o·h~.·rs were castigated as self-seekers who had tried to become virtual dictators and Sri Sanjeeva Reddy who had been selected by these people was described as a corrupt and immoral person. The pamphlet charged Sri Sanjeeva Reddy not only with lack of probity but as having been guilty of gross misdemeanour towards members of the other sex on a number of occasions, culminating in the statement that if he were to become the President he would "turn Rashtrapati Bhavan into a harem. a centre of vice and immorality.'' (1 0) Not satisfied with what the Prime Minister had said at the Congress Parliamentary meeting on August 6, Sri Nijalingappa reque;tuJ her specificaUy on August 9 to issue an appeal to the members of the party to vote and work for the success of the Congress cand!date. The Prime Minister avoided doing this and merely s~id that people should abide by the decision of the Board. c c ~. K. SINGH V. SHRI V, V. GIRl (Mitter, /,) 3~1 ( 11 ) This was followed by certain correspondence by and bet~een Sri Fakhrudin Ali Ahmed and Sri Jagjiwan Ram jointly on the one hand and Sri Nijalingappa on the other, as also by and between Sri Nijalingappa and the Prime Minister from August 11 to August 15. The correspondence showed an open cleavage between the members of the party and it became clear that the Prime Minister and her colleagues in the Cabinet and their sup- porters made the issue of the success at the election by defeating the group whic_h opposed her at the meeting of the Board on July J 2, as one of prestige and political survival of the Prime Minister. Against the above background the offence of undue influence was said to have been committed by the returned candidate and some persons named and unnamed and described as the workers and supporters of the respondent with his connivance by volunta- rily interfering and attempting to intedere with the free exercise of the electoral rights of the candidates and the electors in general and some of them named in particular. (a) According to paragraph 13(b)(ii) of the petition Sri S. Nijalingappa, Sri S. K. Patil, Sri K. Kamaraj, Sri Morarji Desai and Sri Y. B. Chavan, electors at the election were threatened by the Prime Minister on the 12th July at Bangalore with serious consequences with the object of unduly influencing them so as to make them change their decision to nominate Sri Sanjeeva Reddy as their candidate. The threat is alleged to have been repeated subsequently on a number of occasions. It was also said to be a direct attempt to dissuade Sri Sanjeeva Reddy from standing as a candidate. (b) In paragraph 13(b)(iii) of the petition it was stated that with the object of interfering with the free exercise of the electoral rights of Sri Sanjeeva Reddy, Sri Nijalingappa, Sri Kamaraj and others, electors at the election, supporters of the respondent viz., Sri ,Jagjiwan Ram, Sri Yunus Saleem, Sri Sashi Bhushan, Sri Krishna Kant, Sri Chanresekhar, Sri Jagat Narain, Sri Mohan Dharia and Sri S. M. Banerjee in particular and other supporters and workers of the respondent in general, with the consent and connivance of the respondent published by free distribution a pamphlet, annexure A-38 to the petition, in Hindi and English, in cyclostyled form as well as in printed form in which serious alle- gations, as already noted, were made amounting to the commission of undue influence upon the persons named within the meaning of s. 171-C l.P.C. (c) According to paragraph 13 (b)( iv) of the petition this pamphlet was distributed from 9th to 16th August among all the electors of the electoral college for the Presidential election. It was distributed in the Central ha11 of Parliament by the above· [1971] 2 S,C.R named persons i.e. Sri Jagjiwan Ram and others. A large num· of electors were asked to read the contents of the pamphlet, and were also asked to say whether they would vote for such a debau- chee and corrupt man. An instance of this is given 'in paragraph 13(b) (iv) of the petition: Sri Yunus Saleem approaching Abdul Gani Dar, one of the petitioners and talking to him as above in the presence of other members of Parliament. (d) The petitioner, Sri Abdul Ghani Dar, took strong excep- tion to what was going on and wrote a letter to the respondent endorsing a copy thereof to the Prime Minister and Sri Humayun Kabir requesting the respondent to condem~ those who had pub- lished the pamphlet and make a public statement dissociating him- self fr()m and denouncing the publishers of the pamphlet. (e) The respondent himself during his tour of the country addressed pressmen and members of the public at variou~ places <'!nd repeatedly stated that a man of character and integrity should have been selected. (f) According to paragraph 13 (c) (i) the supporters of the respondent, namely, the Prime Minister and some of her Cabinet colleagues 1ike Sri Jagjiwan Ram, Sri Fakhrudin Ali Ahmed, Sri Yunus Saleem, Dr. Karan Singh, Sri Dinesh Singh, Sri Swaran Singh, Sri I. K. Gujral, Sri S. S. Sinha, Sri K. K. Shah and Sri Triguna Sen misused their position for furthering the prospects of the returned candidate by contacting a large number of electof'l on the telephone and openly telling them that if the electors did not vote for the respondent they would lose all the patronage which they would otherwise be given. Electors were called by some of the abovenamed Ministers at their offical residences and offices in Delhi and undue influence brought to . bear upon them by ordering them to vote for the returned candidate. (g) According to paragraph 13(c) (iii) of the petition Sri Fakhn.idin Ali Ahmed and Sri Yunus Saleem threatened the Muslim electors that Sri Sanjeeva Reddy was in fact a candidate c of the Jan Sangh Party and if he was elected the fate of the .. Muslim community in India would be in danger; This uQdue · influence was exercised over all the Muslim electorS in the country and speCially those in Parliament. An instance- ·of this is given as having taken place between Sri Yunus Saleem and Sri Abdul Ghani Dar. (h) The workers and supporters of the respondent became desparate and demanded freedom of vl)fe ar the election so that the members of the Congress party may not feel themselves bound by their party affiliation to vote for Sri Sanjeeva Reddy. It was stated that such a scare was created that the President of the U.P. c S. K. SINGH V. SHRI V. V. GIRl (Mitter, J.) Congress Committee, Sri Kamlapati Tripathi and the Chief Minis- ter Sri C. B. Gupta who had on August 6, 1969 addressed a meet- ing for solidly backing Sri Sanjeeva Reddy changed their stand and on the 13th A~gust, 1969 Sri Kamlapati Tripathi also plead- ed fer freedom of vote. (I) According to paragraph 13 (c) ( v) a scare wru. raised and undue influence exercised on the minds of the members of the Legislative Assembly of Bengal that if successful Sri Sanjeeva Reddy would enforce President's Rule in Bengal wiping off the United Front Government and the legislative assembly. Accord· ing to paragraph 13 (c) (vii) a similar scare was raised with regard to enforcement of President's Rule in Andhra P-radesh. According to paragraph 13 (c) ( x) the returned candidate, the Prime Minister, Sri JagJiwan Ram, Sri Fakhrudin Ali Ahmed and ethers entered into a consoiracy calculated to maintain the. said Ministers in their office by the allegation that Sri Nijalingappa had entereJ into an arrangement with the leaders of the Jan Sangh and Swatantra Party to oust the Congress Government from the Centre and to establish a Coalition Government. There are other allegations of undue influence in the said paragraph but as they were not pressed no further notice need be taken of them. In paragraph 14 of the petition it was stated that the result of the election had been materially affected by reason of the com- mission of the offence of undue influence at the election by the persom mentioned in paragraph 13 of the petition. In paragraph 16 of the petition it was stated that in case the Court came to the conclusion that the offences mentioned above, . the ugh ~ommitted were no~ conniv~d at by the responde~t, still the election ought to be declared void as the result of it had been materially affected by the above practices. In the counter affidavit filed by the respondent the above charge~ were all denied and the correctness of the statements dis- puted. The resondent stated expressly that for want of know- 1edge he could not traverse· the allegations in the various sub- paragraphs of paragraph 13 of the petition except those which w~re made agains~ h~m or imputed to him and alleged to.-have been sa1d or done at h1s mstance or with his connivance. He ~tated categorically in paragraph 25 of the counter affidavit that he had been carrying on his campaign single handed and that in between July. 30 a_nd 13th August he was out of Delhi most of the time tounn~ d1fferent parts of the country. He disputed the correct- ness of the charges made in the · various sub-paragraphs of para- graph 13 and denied that he had been contacted by the Prime Minister at Delhi from Bangalore as alleged or that she had sug· gested that as soon as an official ·announcement 1egarding the selection of Sri Sanjeeva Reddy was made he should announce , his own candidature for the office of the President. With regard to his press conference he said that he had only outlined the neces· sary qualifications for the office of the President and that his statement could by no m~ans be read as an attack on the personal conduct or character·of Sri Sanjeev Reddy. He said further that he had approved of the taking over of the portfolio of Finance from Sri Morarji Desai on the 16th July on the recommendation of the .Prime Minister but the signing of the Bank Nationalisation Ordinance had nothing to do with the Presidential election. He stated in clear terms that he had no knowledge of any of the state- ments relating to printing, publishing and distribution of the un· signed. pamphlet, whether printed or otherwise and he completely dissociated himself therefrom. He denied the insinuation that he had anything to do with the Prime Minister's alleged call for a free vote to get support for himself. He characterised the allega· tions regarding the publication and distribution of the pamphlet mentioned .in the petition by anybody as his supporters or workers with his consent and connivance, as reckless, wild and false. He denied having received any letter from Sri Abdul Ghani Dar as mentioned in the petition or any copy of the pamphlet. He denied ever having hinted in any of his public addresses anything deroga- tory tn the personal conduct or character of Sri Sanjeeva Reddy. With regard to paragraph 1 3 (c) ( i) of the petition }l~ stated that he was not aware of any of the persons having acteo in the manner al1~ged therein. With regard to paragraph I 3 (c) ( ii) and (iii) as also 13 (c) (x) he disclaimed an knowledge. On 21st January 1970 the Court directed the petitioners to furnish several particulars of the petition mostly relating to para· graph 13(b)(iii), 13(b)(iv), 13(c)(i) and 13(c)(iii). In compliance with the same the petitioners gave inter alia the follow. ing particulars. With regard to paragraph 13 (b) (iv) they stated "that the persons who had distributed the pamphlet between the 9th and 16th August 1969 were already mentioned in paragraph 13(h) (iii) and some other persons who had done so were being mentioned in particulars furnished to paragraph 13 (b) (iii), namely, Sri Maulana Ishaq Sambli, Sri Akbar Ali. M.P.. Sri Bhupesh Gupta M.P. and Sri Randhir Singh M.P. With regard to the place and date on which the persons mentioned in paragraph 13 (b)( iii) were alleged to have distributed the pamphlet it was said that o:1 9th Au~ust 1969 Sri Sashi Bhushan M.P. and Sri Krishan Kant M.P. had together distributed copies of the said pamphlet to various members of Parliament at the latter's residence t~ c c S. I'·; Sl~GH V. SHRI V. V. GIRl (Mitter, J.} in New Delhi. It was also said that the pamphlet had been distributed by leaving the same at the residence of nine o~her electors at their residence on 9th August late in the evenmg. Little attempt was made to prove these statements. The names of 18 persons were given as having received the said pamphlet at their residence by post in various places in India. They were all members of the Legislative Assemblies of Uttar Pradesh as also of Madhya Pradesh, Bihar and Chandigarh. Of these some but not all were examined in court. Further, with regatd to distribution of the pamphlet it was said that the persons already mentioned in paragraph 13 (b)( ill) as also thQse mentioned in reply to the application for particulars given above distributed the same individually and in groups of two or more on all days between 11th and 15th August to the general body of electors frequenting the Central hall of Parliament. The names of 29 members of Parliament were given as the reci· pients of the pamphlets in the above manner. Further groups of M.Ps. were mentioned as. having distributed the said pamphlet's to some or other of the petitioners on the 11th August 1969 in the Central hall of Parliament. With regard to the telephone calls by Ministers exercising undue influence over the members of the electoral college referred to in paragraph 13(c) (i) about 30 M.Ps. were named as having been so contacted by 11 named Ministers including the Prime Minister, Sri Fa.khrudin· Ali Ahmed, Sri Jag- jiwan Ram, Sri Yunus Saleem and Sri I. K. Gujral. ·With the exception of three of them, namely, Sri Fakhrudin Ali Ahmed, Sri Yunus Saleem and Sri J. r·. Gujral, no attempt was made to S1lbstantiate the above. I do nc · think it nece3sary to dilate more on. the correctness of the particulars and the attempt to establish the same except to say that 1it1le effort was made to establish the allegations which were verified either as true to the knowledge of the deponent, Sri Abdul Ghani Dar or as being based on informa- tion received by him from the persons named, some of whom were called as witnesses but did not support the version of Sri Abdul Ghani Dar as given in the particulars. For the sake of convenience issue No. 4 is reproduced below Issue 4 in Election Petitions Nos. 4 and 5. (a) Whether all or any of the allegations made in paragraphs 8 (e) and 1·3 (a) to ( m) of the petitions constitute in law an offence of undue influence under s. 18( 1) (a) of the Presidential and Vice-Presidential Elections Act of 19 52 ? (b) Whether the said allegations made in para- graphs 8 (e) and 13 (a) to ( m) are true and proved ? (c) In the event of these allegations being proved constituting undue influence, whether SUPREME COURT REFORTS (i) the returned candidate has committed the offence of undue i:1fluence? (ii) Whether undue influence was committed by his workers and if so. with his connivance ? and (iii) Whether undue influence was committed by others without his connivnnce and if so, whether that has materially affected the result of the election '! Before going into the evidence adduced one must note the provisions of the law relating to the election of the President of India and in particular the grcunds on which such an election can be challenged and then briefly consider the history of the law of Undue influence generally and examine the statutory provisions of · the' Jaw of undue influence applkable to elections and the expo- sition thereof in India. Art. 71 ( l) of our Constitution provides that all doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be enquired into and decided by the Supreme Court whose decision shall be final. Sub-cl. ( 3) of that article lays down that : "Subject to the provisions of this Constitution, Par- liament may by law regulate the matter relating to or connected with the election of a President or Vice- President." By Act 3 I of 1952, the Presidential and Vice-Presidential Elec- tions Act (hereinafter referred to as the 'Act') Parliament made provisions for the conduct of Presidential and Vice-Presidential elections. 1 Disputes regarding elections are dealt with in Part III of the Act containing sec~ions I 3 to 20. S. 16 of the Act lays down the reliefs which may be claimed by a petitioner and s. 1 R specifies the grounds for declaring the election of a returned can- didate to be void. The relevant part thereof reads as follows :- " 18 ( I ) If the Suoreme Court is of opinion- ( a) that the offence of bribery or undue influence at the election has been committed by the returned can- didate or by any person with the connivance of the returned candidate; or (b) that the result of the election has been mate- ria!Iy affected- ( i) by reason that the offence of bribery or undue h'lfluence at the election has been committed by ~'ly c II \1 s; K. SiNGH v. SHRI V. V, GIRl (Mitter, J.) person who is neither the returned candidate nor a per- son acting with his ~;onnivance; (:) II: Th: Supreme Court shall declare the election of the returned candidate to be void. \2) For the purposes of this section, the offences of bribery and undue inftoence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code (Act 45 of 1860) .'' Section 21 contained in part IV provides for the making of rules to give effect to the Act. The provisions in the Constitution and the Presidential and Vice-Presidential Elections Act of 1952 and the Rules framed thereunder form a complete code relating to such elections and all doubts and disputes regarding the vali- dity of such elections which can be adjudicated upon by the Supreme Court must arise within the limits specified thereby. Chapter IX-A of the Indian Penal Code which deals with offences relating to elections was introduced by the Indian Elections Offences and Inquiries Act. 39 of 1920, section 2. S. 171-A in that part defines candidates and electoral right. Bribery is defined in s. 171-B. Undue influence at elections is covered by s. 177-C which runs as follows:- "( 1) Whoever voluntarily interferes or attempts to interf~re with the free exercise of any electoral right commits the offence of undue influence at an el~ction . (2) Without prejudice to the generality of the pro- visions of sub-section ( 1 ) . whoever- (~) threatens any candidate or voter, or any person in whom a candidate or voter is interested. with injury of any kind, cr (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 su~~ candidate or voter, within the meaning of sub-section (I ) . (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." Under s. 171-F whoever commits the offence of undue influence . or personation at an election shall be punished with impri!Ollment of either description which may extend to one year or with line or with both. Under s. 1 71-G : "Whoeve.r with in!e:It to affect the rsult of an elec- tion. makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false and does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine." It will be noted that the words used in sub-s. ( 1) o~ s. 171-C are very wide and sub-s. (2) though illustrative of sub-s. (1) does not purport to comprehend all the facets of undue influence under sub-s. ( 1). The statement of objects and reasons of the Act ~f 1920 make the intention of the legislature clear. It reads : "The second sub-clause is merely ex!)lanatory of the general definitions in the first sub-caluse and does · not restrict the generality of the words used there. We have considered the criticisms of this clause based on the generality of the words employed but we are satisfied that atiy attempt at specific enumeration would be open to serious danger of loopholes in what we regard as a most salutary provision.'' On the facts of this case the vital question before us is, whether the mere publication of a false statement highly derogatory of the personal conduct or character of a candida!e or the dissemination of a scurrilous pamphlet depicting a candidate as one of lacherous character will fall under sub-s. ( 1 ) of s. 171-C or whether in order to prove the commission of the offence the election petitioner must go further and establish that there was an attempt on the part of some persons to interfere with the free choice of a candidate on · the part of th'e voters by making use of the pamphlet so as to deflect their will and restrict their choice to persons other than the one defamed. Undue influence is an old and well known English legal con- cept. Before the e~pression c~me .to .be used in liti~ation over ·elections 1t had acqmred a defimte s1gmficance to Enghsh lawyers although its exposition in common law was somewhat different from that which the equity lawyers gave it. The concept was c c S. K. SINGH V. SHlU V. V. GIRl (Mitter, J.) developed along a particular line by Judges in England trying election disputes and our Indian law has by and large followed the same pattern. According to Anson on English law of Contract (22nd E<\ition) Chapter VII: "A contract which has been obtained by means of pressure or intimidation is voidable at common law or in equity on the ground of duress. At common law the definition of duress is a narrow one, and only the more extreme forms of coercion will suffice. In equity, how- ever, owing to the development of the doctrine of cons- tructive fraud, a contract may be rescinded in cases where common law provides no remedy……. At common law duress consists in actual or threatened violence or imprisonment; the subject of it must be the contracting party himself, or his wife, parent, child, or other near relative; and at it must be inflicted or threa- tened to be inflicted by the other party to the contract, or at least it must be known to him when he entered into the contract." (see p. 243). The learned author goes on to say at pages 244 and 245 : "Equity, on the other hand, will treat contracts as voidable when they have ben induced by forms of pres- sure or coercion which do not amount to duress at com- mon law. 0. The term 'undue influence' has sometimes been used by the Courts to describe the equitable doctrine of coercion which has just been referred to, but it also includes, and it would perhaps be convenient to confine it, forms of pressure much less direct or substantial than those already discussed. It may arise where the parties stand to one another in a relation of confidence which puts one of them in a position to exercise over the other an influence which may be perfectly natural and proper in itself, but is capable of being unfairly used. * If it can he shown that one party exercised such dominatio!l over the mind r.nd will of the other that his independence of deci- sion was substantially undermined, the party whose will. was over- borne will be entitled to relief on the ground of undue mftuence. There is no need for any special relationship to exist between the parties, although, of coutse, it may do so. The mere fact that domination was exercised is sufficient; no abuse of confidence need be proved." According to Cheshire and Fifoot on the Laf of Contract (7th Edition) p. 264 : [197!] 2 S.C.R ''The Courts have never attempted to define undue influence with precision, but it has been described as "some unfair and improper conduct, some coercion from outside, some overeaching, some form of cheating, ·and generally, though not always, some personal advantage obtained. by" the guilty party." So far as the English Law of Elections on which principally our election Jaws are based is concerned, reference may be made to some of the well-known text books on the subject. According to R~gers Parliamentary Elections and Petitions. 20th Edn. Chapter XI p. 325 .: "In England corruptly influencing a voter, whether by· the more direct and grosser form of treating or the more indirect and subtler form of wagers was always an offence as a species of bribery; but unduly influencing a voter was not, before the 17 and 18 Viet. c. 1 02, an offence in the strict sense of the word, although its pre- valence is mentioned in many resolutions of the House of Commons, and many statutes have been passed to prohibit the evil in particular i:t:tstances; and although a vote unduly influenced is void at common law, and will be struck off on a scrutiny." The learned author goes on to add : "As early as 3 Edw. 1, c.5, which is declaratory of the common law, thus, in affirming the vital principles of freedom of election, said, ''Because election ought to be free, the King cornmandeth, upon forfeiture, that no man by force of arms, nor by malice or menacing, shall disturh any to make free election.'' Rogers notes that in the case of Lichfield (1869) 1 O'M & H. 25, Willes, J. defined undue influence as "using any vioh:nce or threatening any damage, or resorting to any fraudulent contrivance to restrain the liberty of a voter, so as either to compel or frighten him into. voting or abstaining from voting otherwise than he Ireely wills." In the same case the learned Judge added (at p. 28) : "The law cannot strike at the existence of influence.. The law can no more take away from a man, who has property, or who can give employment, the insensible but powerful influence he has over those who he can benefit by the proper use of his wealth, than the law c c S. K, SINGH V. S.HlU Y. V, GIRl (Mitter, J.) . 351: could take away his hon~ty. bis aood feolina, h!s courage, his good looks, or any· other qualities . which Jive a man infiuence ·over his follows. It is the ab1.11e of influenc-e with which alone the law can deil. In1luence cannot be said to be abused because it exists and op&- rates. It is only abused in cases of this kind, where an inducement is held out by a promise ………..•.. to induce voters to vote or not to vote at an election.'' This case was decided upon 17 and 18 Viet. c.102, section 5. According to Rogers the following are the principal kinds of improper influence: 1. The use of open force or violence, or the threat thereof. 2. The infliction of any temporal injury, damage, hann or loss or by the threat thereof. 3. The infliction of any spiritual injury, damage, harm or lossy or by the threat thereof. 4. The impeding etc. the due exercist>; of the franchise etc. by abduction, duress, or any fraudulent device or contrivance. Section 101 of the Representation of the People Act, 1949 appears to be that latest codification of. the English law on the su~ject of undue influence. Under sub-s. (1) a person shall be guilty of corrupt practice if he iS guilty of undue influence. Sub-s. (2) of the section is in two parts. Under cl. (b) a person shall be guilty of undue infiuence if, by abduction, duress or any fraudulent device or contravance, he impedes or prevents the free exercise of the franchise of an elector or proxy for an elector, or thereby compels, induces or prevails upon an elector or proxy for an elector either to vote or to refrain from voting. . Under s. 91 ( 1 ) of the Representation of the People Act, 1949: "Any person who, or any director of any body or association corporate which, before or during an elec- tion, shall, for the purpose of affecting the return of any candidate at the election, make or publish any false statement of fact in relation to the personal character or conduct of the candidate shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true:" ll-L308Sup.Cif71 ~52 It will thus be noticed that in England the law of undue 'influence as regards elections is somewhat akin to that branch of 1he law as expounded by the courts of equity and both have a ·common facet, namely, the inducemdent of a person to act other- wise than under his free will by resort to any fraudulent device or contrivance. Coming now to our Indian law, s. 16 of the Contract Act which came on the statute book in 1872 laid down by sub-s. ( 1) ·.that "A contract is. said to be induced by "undue influence" where the relations subsis.ting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other." In substance our law of contract with regard to undue influence stresses upon the domination of the will by another to obtain an unfair advantage by the exercise thereof. So far as our election law is concerned the earliest attempt seems to have been the codi- fiation in_1919.under Chapter IX-A of the Indian Panel Code. This was followed by ihe Government of India (Provincial Elec- tions) Corrupt Practices and Election Petitions Order 1936 which will be shortly described as the Corrupt Practices Order. This law was passed after the Government of India Act of 1935. Corrupt. practice in relation to an election by the members of a Provincial Legislature to fill seats in Provincial Legislative Coun- cil, meant one of the practices· specified in Parts I and II of the First Schedule to the Order, and in relation to any other election, meant one of the practices specified in Parts I, II and III of that Schedule. Part I of the First Schedule defined undue influence in clause 2 in the following terms :- "Undue influence, that is to say, any ~irect or indirect inter- ference or attempt to interfere on the part of a candidate or his agent, or of any other person with the connivance of the candidate or his agent, with the free exercise of any electoral right : Provided that- ( a) without prejudice to the generality of the provtsions of this paragraph, any such person as is referred to therein who– c ( i) threatens any candidate or elector, or a1-1y person in whom a candidate or elector is interested, with any ·i~jury of any kind; m ( ii) induces or attempts to ·induce a candidate or an elector to beheve that he, or any person in whom he is interested. will c S. X. SINGH v. SHRI v: V. GUll {Mitter, J.) . 353 become or will be rendered an object of divine displeasure · or spiritual ~nsure, shall be deemed to interfere with .the free exer· cise of the electoral right of that candidate or elector within the meaning of this paragraph : (b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to inter- fere with an electoral right, shall not be deemed to be interference within the meaning of this paragraph." It will be noticed that .there is a good deal of similarity between · this provision and that in s. 171-C of the Indian Penal Code. There is greater similarity between undue influence as defined in s. 171-C and the definition of that expression in s. 123 of the Representation of the People Act, 1951-another Parliamentary- Act. Under the Act of 1951 undue inftuence is defined as follows ins. 123(2) : "Undue influence, that is to say, any direct or indirect inter- ference ot attempt to interferenee on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free· exercise of any elctoral right. : Provided that- ( a) Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who– ( i) threatens any candidate or an elector or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or ( ii) induces or attempts to induce 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 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 clause." This Act contains a further provision in cl. ( 4) of s. 123 laying down that "the publication by a candidate or his agent or by any SUPREME COU:RT REPORTS other person with the consent of a candidate or his election agent of any stattment of !act which is false and which he either believes to be false or does not belie·~e to be true in relation to ilie perso- nal conduct or character of any candidate i:u r~lation t.o the candi- dature or withdrawal, of any candidate being a statt!mc.nt reason- ably calculated. to prejudice the election of that candidate at • .m election" will be deemed to be a corrupt practice for the purpose of that Act. It will be noted that under sub-s. ( 4) publication of a false statement relating to the personal conduct or character of a candi- date only becomes a corrupt practice wher.. it i& done by a rival or his agent or any other person with his ~onsent. However opprobrious such publication may be it is not an electoral offence under the Act of 1951 and would not be a ground for setting aside an election although it might become culpable under s. 499 of the Indian Penal Code and as such punishable with simple impri- sonment for a term which may extend to two years or with fine or with both. Clearly such publication per se would not amount to any ·direct or indirect interference or attempt to interference with the free exercise of an electoral right so as to attract s. 123 (2) of the Act. Even in England it would be an illegal practi~ within the meaning of s. 91 ( 1) of the Representation of the People Act. By itself it would not make the publisher of the statement guilty of und'ue influence. While enacting the statute of 1952 the legis- lature .had before it the electoral offences codified in Chapter IX·A of the Indian Penal Code. It recognised the necessity of a law prescribing for the annulment of an election only if bribery or undue influence was committed thereat. Such offence if com- mitted by a candidate or by any person with his colUlivance was enough for declaring tlie election void. But if committed by any person who was not the returned candidate nor one acting with his connivance. it was not to affect the election unless the result of it had been materially affected by such malpractices. So far as this branch of the law is concerned the only difference between the Act of 1951 and the Act of 1952 lies in the fact that under the latter Act corrupt practices of bribery or undue influence by one who was not a· party to the election or his agent are also brought in. But the nature and character of undue mfluence under both the Acts remains the same. 1 see no reason for taking a view that what would not be undue influence under the Act of 19 51 can become one under the Act of 1952. If publication of defamatory matter relating to a candidate was to be treated as a direct or indirect interference or attempt to interfere with the free exercise of any electoral right under the wide words of s. 171-C(l) there would have been no occasion for the legislature to provide for it separately under s. 123 ( 4) of the c c S. K, SINGH V. SHRI V. V, GnU (Mitter, J.) Act of 1951. In my view the same position would obtain undel' the Act of 1952 and before any publication of a defamatory mat· ter relating to a candidate can be treated as commission of the offence of undue influence there must be some overt act in addi- tion to the mere publication-some attempt or persuasion of a voter to restrain the free choice of a candidate before the law of undue influence is excited. The above proposition may be illustrated as follows : If anonymous posters containing defamatory matter about a candi- date's personal conduct or character were to be displayed in pro- minent places in the constituency so as to attract the notice of electors, it would come within the mischief of s. 171-G of the Indian Penal Code but would fall short of exercise of undue influence under s. 171-C. An attempt to denigrate a person ·in such a way could not be said to be directed to thwarting the free choice of electors inasmuch as the poster by itself would give no indication as to the source of information on which the imputa- tions were made or of their authenticity. But if an unsigned pamphlet containing matter defamatory of the personal conduct or character of a candidate be pressed personally upon an elector by another with an attempt to make the receiver believe that there was some basis for the charges levelled against the candidat~, the person receiving the pamphlet would be likely to give credence to the imputations made therein and would thus be subject to a restraint on his franchise. As a mere attempt to interfere with the free exercise of an electoral right is sufficient for the purpose of s. 171-C ( 1) of the Indian Penal Code it is not necessary to prove positively· that there was actual domination of or over- bearing of the will of the elector to lead to the inference that undue influence was exercised : it would be sufficient to show that there was an attempt to pervert the unfettered choice of a voter by resort to illegitimate persuasion inter alia by pressing upon him a document containing such a false statement of fact relating to the conduct or character of a candidate as would make any right- thinking man shrink from selecting him and shun him in the pro- cess of selection of a candidate. In such a case it would not be difficult to bold that there was in fact malice behind the publica- tion and the adoption of a fraudulent device calculated to defeat or deflect the will of the elector. In this view of the matter the publication of a false statement of fact relating to the conduct or character of a person coupled with an attempt to persuade elec- tors by such publication would attract the operation of s. 171- C( 1) of the Indian Penal Code. It would also fall within the definition of undue influence ins. 123(2) of the R.P. Act of 1951 and the definition given in c1. 2 of the Corrupt Practices Order, 1936. SUPREME COUR 1' REPORTS (1971 J 2 S.C.R. I may no\\- proceed to note :;ome of the reports of Election Commissions under the Corrupt Prac:tices Crder bcfon! examining mere recent deci~ions. Jn Amritsar City (Mohamma- dan) Constituency-Sh. Mohammad Sadiq ".!. Dr. Saifuddin Kitchlow (1) before tne Second Electbn Petitions Commission Bench the scope of undue influence uudet· the first Schedule to the Corrupt Practices Order, 1936 came to be considered. It was the cas~ of the petitio11er that one Farezc-u-Din Ahmed by admi- nistering oaths to his audiMce which i!'lcluded numerous voters. restricted their choice to the returned candidate Dr. Kitchlcw, under pain of spiritual penalties and thereby interfered with the free eYercise of their right to vote. Counsel for the respondent argued that the element o( compulsion was an essential ingredient of the corrupt ·practice of undue influence and contended that it was not even alleg~d that Feroze-ud-Din Ahmed had compelled hi.> audience to take the alleged oaths. The Commissioners found th<H ''such oaths were taken and that Feroze-ud-Din Ahmad also reminded h:s audiences of the penalties pro- vided for brcacb of such oaths by thei_r religion. J t is evident that the element of con1pulsion was present in the minds of those voters whu had taken oaths to vote for Dr. Kitcldew at the time when they macked their ballot-papers; they haJ gi vcn an undertaking. supported by the sanction of h:c; of faith. which inevitably leads to divine displeasure and spiritual censure, that they would vote for Dr. Kitchlcw and for no other person." The Commissioners however could not find in the definition of '•Jndue infl.ut:nce' any basis for the proposition that unless Feroze- ud-Din Ahmad had compi!lled voters to take these oaths, the offence of undue influence was not co!llplete observing : "That definition, ac; is obvious, gives a very wide scope of the meaning of "undue influence" ……. . Evidently the offence includes such interference or attempt to interfere by any method, and one possible method is the method of inducement,· which is proved to have been practised in this case. In fact the word 'induces' occurs in the second proviso to the definition of "undue influence" reproduced above. Further, we have seen that the inducement was of a ver1' powerful type. supported as it was. by refe1ences to the· demolition of the Shahidganj Mosque. and the deaths of Muslim-; which resulted from the tiring during the ensuing dis- turbances in regard to which the feeling among the rank and file of the Muslim community is undoubtedly very deep." (I) Doabia's Election Cases, Vol. II. pa&c 117. c f c S. K. SINGH V. SHRI V. V. G!RI (Mitter, /.) In Amritsar City (Mohammadan) Constituency Case No. 2(1) the meaning of undue influence under the Corrupt Practices Order, Order, 1936 again fell to be considered. There a question arose as to whether certain news items and oosters in which the unsuccessful person was wrongly and falsely described as standing as a candidate on a Muslim League ticket would fall within the mischief of the Order. In their report tbe Commissioners stated (at p. 157) : "There is no proper evidence of actuajt interference before us, and as regards the attempt, we have to see if there was the deliberate.. intent to mislead voters and thus make them exercise their electoral right under the wrong impression that the respondent had been set up as a candidate by the Muslim League." The case for the petitioner there was that one Maulana Zaffar Ali Khan by making an appeal to the voters restricted their choice to Mohammad Sadiq under pain of spiritual penalties and even other- wise and thereb) exercised undue influence in the free exercise of their right to vote. In the opinion of the Commissioners an inducement could not amount to undue influence unless it v:as of such a powerful type as would leave no free will to the voter in the exercise of his choice. In Lyl/apur and Jhang Generql Cons- tituency Case No. 2(2) one of t~e questions canvassed was whether fraud was a corr~t practice within the meaning of Government of India (Provincial Legislative Assemblies) Order 1936, paragraph 4-B. According to the Commissioners fral!d may in some cases come within the ambit of the corrupt practice of undue influence. Referring to the definition of undue influence in the said order the Commissioners observed: "Il is obvious that the definition of undue influence is very widely worded and covers all kinds of fraudulent acts or omissions which, in any way directly or indirect- ly interfere with the exercise of any electoral right. The definition in the English Act specifically makes a frJudulant device or contrivance a type of undue in· fluence. As devices based on fraud which . interfere with the exercise· of electoral right, are not mentioned by name in the definition given in Schedule I, it has been intentionally framed in 'very general terms so as to cover all kinds of such devices." (1) The Indian Election Cases by Doabia, Vol. 2 page 1 SO dated 28th September, 1938. (2) Doabia's Election Cases, Vol. II p. 243 at 25§. — ··———– ;!58 SUPREME COURT ~EPORTS Jujhar Singh v. Bhairon Lall & others( 1 ) was a case in which there were two candidates, one a jagirdar and the other a Congress- man. The Cong~ess conunittee published a poster containin~ the picture of a tenant tied up to a tree and a well dressed jagtrdar asking another who had a waving whip in his hand, to flog tht:: tenant and the tenant's wife was shown lying prostrate on the ground. It was held that the publication of the poster amount- ed to the exercise of undue influence on the voters who were mostly illiterate villagers and the case fell under s. 123(2) of the Representation of the People Act. In R. K. Shukla v. T. C. Maheshware) one of the questions before the Elecnon Tribunal was whether the shouting of a slogan in various villages and bazars that people who vote in a particular way would be given a shoe-beating amounted to exercise of undue influence. Relying on the observations of Norfolk (Northern case ( 1 O'M & H. 236 at 242) that before a threat can be considered to amount to undue influence, a question must be put, 'was it a serious and deliberate threat uttered with the intention of carrying it into effect ?' Applying .that test, the Election Commissioners held that they had no difficulty in coming to the conclusion that the shouting of the slogan could not amount to undue influence inas- much as it was shouted for several months before the election was held and not a single instance was brought on record in which the threat contained in the slogan was carried out. On the facts of the case, it was held that none of the parties could be said to have uttered slogans for the purpose of directly or indirectly interfering with any person's free exercise of his electoral right. Reference was also made to the fact that there was no evidence that any complaint even had been made about the shouting of the slogans to the agents of the petitioners. In Amir Chand v. Sucheta Kripalani( 3 ) one of the questions which engaged the attention of the Election Tribunal was whether a false statement in a daily newspaper to the effect that the respon- dent Smt. Sucheta Kripalani was going to be taken as a Rehabilita- tion Minister in the forthcoming Union Cabinet after the election thereby giving currency to the ~mour amounted to undue influence as contemplated under s. 123(2) of the Representation of the People 1Act. The view taken by the Tribunal was that (p. 252): ''The so-called device namely, that some one from Lucknow sent the news as a rumour or opinion of the member of the Congress High Command, does not fall within the ambitf of the. definition'', (I) 7 E.L.R. 457. (2) 12 E.LR. 378 at 415. • (3) 18 E.LR. 209. c c S. K. SINGH V. SHIU V. V. GIRl (Mittel", J.) ins. 123(2). It was said that though the definition was no doubt in general terms it had an element of compulsion and it was an abuse of influence that would constitute undue influence. In Kataria Takandas Hemraj v. Pinto Frederick Michael( 1 ) an appeal was mad¢ to Maharashtrians not to vote for the Congress Government had resorted to firing and killing Maharashtrian leaders for demanding a separate Maharashtra State and photo- graphs of martyrs who had been killed were attached to the appeal and it was even stated that the ballot box ot the Congress Party was filled with the blood of Maharashtrian martyrs. Negativing the plea of undue influence sought to be raised in the above appeal, the Tribunal stated that although the expression 'undue influence' was wide enough to cover any interference with the exercise pf the electoral right, there is in it an element of compulsion so as to give way to free thinking in the exercise of the electoral right of the voters. In Radhakrishna Misra v. Nityananda Mahapatrae) a case of undue influence was sought to be made out inter alia by the publi- cation of a 'booklet which had in its cover page a photograph of one S. who had been killed during the police firing with the caption ''Do not vote ~or the Congress who had killed S." In the judgment in appeal from the Election Tribunal, Barman, J. remarked (at p. 217) : ''A voter must be able to ·freely exercise his electoral right. He must be a free agent. All influences are not nec\!ssarily undue or unlawful. Legitimate exercise of influence by a political party or association or even an individual should not be confused with undue influence. Persuasion may be quite legitimate' and may be f~rly pressed on the voters. On the other hand, pressure of whatever character, whether acting on the fears, threat, etc. if so exercised as to overpower the volition without convincing the judgment is a species of restraint which i~terferes with the free exercise of electoral right. In such an atmosphere, the free play of the elector's judg- ment, discretion or wishes is overborne and this will constitute undue influence though no force is either used or threatened. It is not necessary ta establish that actual violence had been used or even threatened. Methods of inducem~t which are so powerful as to leave no free will to the voter in the exercise of his choice mav amount to undue influence. Imaginery terror may have been created sufficient to deprive him of free agency." (I) 18 E.L.R. 403. (2) 19 E.L.R. 203. With regard to the poster with the picture, the learned Judge said (at p. 219) : "It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in their mind a feel~ng of terror; fear, hatred or strong prejudice against the Congress …… It at le~st did create or was likely to create or had the tendency to create terror and an unknown fear in the mind of the voters. The picture of the dead boy with the caption frightened the voters or was likely to frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the voters." The learned Judge was in favour of allowing the appeal but his colleague, Rao, J. expressed a different view. According to him (p .. 234): "The picture simply represents Su_nil De after being shot at by the police firing with the caplion underneath 'Do not vote for the Congress who killed Sahid Sunil.' It does not say that if the voters give their votes tfor the Congress all the voters or some of them would be shot as Sunil De." The matter was referred to Das, J. by the Chief Justice in view of the difference of opinion between Barman and Rav, JJ. Accord- ing to this Judge no undue influence was exercised because nothing had been stated in the photo Ex. 3 relating to the picture and there was no statement that if the voters gave their votes to the Congress, they would be shot at as Sunil and accordingly "respon- dent No. 1 could not have intended to cause any fear in the minds of the voters by the above publication to constitute interference with the free exercise of the electoral right of the voters." In Abdul Rahim v. Rad~ Krishna(!) an unsuccessful candi- date charged the retumed candidate along with other persons with having committed undue influence by publication cf a pamphlet in which it was alleged that deliberate false statements of fact in relation to his personal conduct and character had been made. In hearing the appeal Das, J. who delivered the judgment of the Court referred to the definition in s. 123 (2) of the Representation of the People Act and said : "There is nothing in the definition that such inter~ ference or attempt at interference should be by any method of compulsion. Evidently, the offence includes (1) A.I.R. 1959 Orissa p. 188. c f. c S. K. SiNGH v. SHRI v. V. (HRl (Mitter, J.) such ilnterference or attempt to interfere by any method, and it definitely includes the method of inducement wherein there may not be any compulsion at all. The inducement again must be of such powerful type as would leave no free will to the voter in the exercise Otf his electoral right." On the evide!lce the learned Judge held (at p. 193) that there was admission by the respondent h:.ntse.lf and it was abundantly clear that the retur:nect candidate had acted conjointly with his agent in publishing and c1rcularing Ex. 5 as a result of which the election of the petitioner was· materially affected. In Ram Dial v. Sant Lal and others (I) a question arose as to whether a com· mand from Sri Sat Guru Sacha Padshah to the Namdharies Halqa- Sirsa that every Namdhari should vote for the success of I<.am Dayal Vaid, it being a primary duty to make him successful in the election amounted to the exercise of undue influence. No doubt the command was from a person who was a religious leader and as such had a great influence on the Namdharies. The Court ex- pre~sed the view that the religious leader has .a right to exercise his influence in favour o,f any particular candidate by voting for him and by canvass~ng votes of others for him, and has the right freely to express his opinion on the comparative merits of the contesting candidate and to canvass for such of them as he consi· ders worthy of confidence of the electors. Such a course of con- duct on his part, would amount to an abuse c.f his great influen<..c if the words used in a document, or utterances in his speeches leave no choice to the person addressed by him in the exercise of his electoral right. Incidentally it may b~ noted that the learned Judges stressed what was material under the Indian law was not · the actual effect produced but the doing of such acts as were cal· culated to interfere with the free exercise of an electoral right. In lnder La! v. La! Singh (2) the charge against the returned candidate was that he had been guilty of the exercise of undue influence inasmuch as a pamphlet containing a false statement that the respondent No. 2 was "purchaser of the opponents of the Congress by means of money" was issued by the agent of the res- pondent with his consent. Respondent No. 1 contended that the statement related to the public or political character of respondent No. 2 and not to his private character. In his iudgment, Ga_ien- dragadkar, J. said (p. 122) : "Circulation of false statements about the private or personal character of the candidate during the period proceeding elections is likeiy to work against the freedom of election itself inasm.uch as the effect created by false (l) [1959] Suppl. 2 S.C.R. 748. (2) [19621 Supj)]. 3 S.C.R. 114. statem~nts cannot be met by denials in proper time and so the constituency has to be protected against the circulation of such false statements which are likely to affect the voting of the electors.'' With regard to the allegation in the pamphlet already mentioned the Court took the view that : "In plain terms, the statement amounts to an allega· tion that respondent No. 2 buys by offering bribes the votes of the opponents of the Congress …… Offering a bribe in an election introduces an element of moral turpitude and it cannot be denied t~at a person who offers bribe loses reputation as im individual in the eyes of the public." The scope of s. 171-C I.P.C. was considered in the recent decision ()f B'aburao v. Zakir Husain (1). This case is not an authority directly in poi~t but some observations made by Wanchoo, C.J. may not be out of place. Delivering the judgment of the Court his Lordship remarked (p. 145) that: " …… the gist of undue influence at an election consists in voluntary interference or attempt at inter- ference with the free exercise of any electoral right. · A:ny voluntary action which interferes with or attemp&S to inte:fere 'with such tree exercise of electoral right would amount to-undue influence. But even though the definition in subcs. (1) of s. 171-C is wide in terms it cannot take in mere canvassing in favour of a candidate at an electi~. If that were so, it would be impossible to run democratic elections. Further sub-s. (2) of s. 171-C shows what the nature of undue influen~e is though of course it does not cut down the generality of the provisions contahied in sub-section ( 1 ) . Where any threat is held out to any candidate or voter or a,ny person in :whom a candidate or voter is interested and the threat is of injury o,f any kind, that would amount to voluntary interference or attempt at interference with the free exerCise of electoral right and would be undue influence ………… What is contained in sub-s. (2) of s. 171-C is. merely illustrative. It is difficult to lay down in general terms where mere canvassing ends and . interference or attempt at interference with the free exercise of. any electoral right begins. This is a matter to be determined in each case :" (I) [l968] 2 S.C.R. 133. c c s. K. SINGH V. SHRl V. V. GIRl (Mitter, J.) 36~ The question which primarily engaged th~ attention oi this C~urt in the above case was, whether a letter addressed by the Prtme Minister to all the electors in which she commended Dr. Zakir Husain and requested the electors to vote for him amounted to the exercise of undue i1rlluence and on the facts of the case the answer was in the negative. The above citation of the cases is in our view sufficient to reject the contention of Mr. Daphtary that in order to establish undue iniiuence it must be shown that there was some threat to a voter or at least an element of compulsion. in the appeal to him. The cases also show that it would be futile to attempt to lay down a simple test applicable to all sets of facts and circumstances where undue influence is alleged to have been exercised. It can however be said that an attempt on the part of anybody to deflect a voter's will away from a particular candidate by creating prejudice against or hatred for him, as for instance by casting false aspersio.ns on his personal character and conduct whether by spoken words or in writing may be sufficient for the purpose of establishing the commission of undue influence. Much would however depend on the nature of.the attempt, the position of the person making it and the manner in which it is made. The mere publication by postal despatch of an anonymous but scurrilous pamphlet regarding the personal character of a candidate to voters all and sundry might attract the operation of s. 1 71-G of the Indian Penal Code but would faH short of S. 171-C. But if such a pamphlet is pressed upon voters and methods of inducement applied to them, specially by others who are equally interested in the election different considerations may well arise. In such a case a court of law may legitimately hold that the disseminators of the _pamphlet were attempting to canalise or force the will of others away from the person whose character was assailed. Few would take any serious notice of an anonymous pamphlet however scurrilous it may be, if it were pasted on the walls of houses within the constituency where the election is to be held. Similar would be the fate of such a pamphlet disseminated by post. Persons who receive such a pam- phlet would either tvrow it away or express surprise that such aspersions were being made against a person like Sri Sanjeeva Reddy who has held high offices. I do not think that such dis- semi:nation, although mean and ignoble, would have any effect on the minds ·of persons who belong to the electoral college for the election of a person to the office o.f the President of India. But if the disseminators of such pamphlets were persons holding respon- sible offices or persons who belonged to the same category as the recipients and tried to induce the latter to take a particular line of action in a forthcoming election on a personal appeal based on such pamphlets, it would not be difficult to hold that their influence was being exercised unduly and corruptly and an offence commit- 3-64 :;UPREME COURT REPORT.S r 197 l j 2 S.C.R led within the meaning of ~ .. 17 J -C. M~~re dissemination uf such pamphlets even by hand of. well-pL.:~c.j persons would not be enough for such purpose. The pamphlet in l.his case plumbs depths of filth <Jn·:i mtJl1ness ~elllu1;1 reachrd. It was not a mere attempt to duh ~iri Sanjeeva Reddy a~ a man generally devoid o.f good principle~. it accused him pf conduct wholly unbctitting a gentleman not to spr-:<tk of '' person who aspired for election to the high office ot the President of India and charged him with acts of misdemeanour towards members of the other sex giving instances and in most cases mentio.1ing the occasions at which he is said to have committed ~he ind(;cent acts imputed to him. It was calculat- ed to engende1 strong prejudice in the minds of electors against Sri Sll.ujeeva Reddy both in his per:>onal capacity and as being the nominee of a ·group of persons described as usurpers a.f power in the Congress Party. It is difficult to find suitable words to con- demn the making and publicatio:Q of such a vile pamphlet in an ·election to the highest office in the land and it is: certainly a great pity that the authors thereof have not been tracked or suitably dealt with. Having concluded that the use of scurrilous pamphlet of the type disclosed in this may be a step in the commission of undue influence within the meaning of s. 171-C of the Penal Code, I have to consider the evidence adduced to find out the extent of its publication and the manner in which it was published and used before it can be held that undue influence was in fact brought to bear upori the minds of certain electors. One has next to ascer- tain whether the offence of undue influence was committed by the respond,ent or by any of his workers with his connivance. It neither of these be proved, we have to shift th(~ evidence to see whether the offence was committed by others to an extent which materiaHy affected the result of the election. Counsel for the parties argued at some length on the question as to the standard of proof reqqired to establish the commission of the offence of undue influence. As the malpractice is an offence under the Indian Penal Code and attracts punishment by way of imprisonment, Mr. Daphtary argued that the standard of proof required is a much higher one than in ordinary civil cases. Ac- ccrding to him the charge must be well and truly laid in the peti- tion and its particulars a11d evidence adduced in proof thereof as would leave no scope for any reasonable doubt that the offence has been committed by the persons charged therewith. Mr. Daph- tary laid great stress on the production of evidenee strictly follow- ing t~e pleadin~s and contended that no deviation therefrom was permissible. The petitioners accor:ding to him could not be a1lowed to abandon or jettison the case raised in the pleadings and :ask the court to hold on the evidence adduced that the offence of c c S. K. SINGH v. SHRI V. V. GIRl (Mitter, J.) undue influence has been committed by some perf>Ot<s although the manner of commission as laid down in the pleadings ".'as not borne out by the evidence. He also argued that as these persons were not parties to the proceedings they were under no compulsion to come and give evidence in court and the respondent owed .no duty to call all or any of them to disprove the charges levelled against them. Mr. Daphtary'~ argument seemed to suggest that the petition and the particulars thereof supplied later were to be considered in the same light as the first information report in a cri~ninal case and the court should weigh the evidtmce given at the hearing in the same way as in. a criminal trial and if there was a significant departure in the evidence from the charges levelled in the petition, hold that the commission of the offence pleaded was not established. Counsel for the petitioners argued that the paramou:nt duty of the court in such cases was to uphold the validity of an election only i& it was pure and although the court should be slow in up- setting the result of an election on mere trivilities or irregularitieS' it should not hesitate to do so when the evidence disclosed com- mission of corrupt practice on a large scale merely because of the devlation o.f the evidence f'rom the pleading. It was further sug- gested that although the charges savoured of criminality they were not investigated as in a criminal case but the hearing of the election petition was more akin to that in .a civil proceeding and the court should come to its conclusion on the issues framed and the evidence adduced not on the balance of probabilities but on the strength of the direct evidence adduced. This question has engaged the attention of this Court on prior occasions and reference may be made to some of them to see the views expressed therein. In Mohan Singh and others v. Bhanwarl- lal & others( 1 ) where charges of corrupt practic~ had been level- led it was said : "The onus of establishing a corrupt practice is un- doubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of pro- bability, as in the trial of a civil suit; the corrupt prac- tice must be established beyond reasoJJ.able doubt by evidence which is clear nad·unambiguous:'' Much to the same effect was the decision ol this Court in Jagdev Singh v. Pratap Singh(2). (I) [1964] 5 S.C.R. 12. (2) A.I.R. 1965 S.C. 183. In Samant N. Balakrishoo etc, v. George Fernandez and others etc.(!) it was said (see at p. 637) : "Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitiQner must exc1ude every hypothesis except that of guilt on the part of the\ returned candidate or his· election agent/• · All the· .three cases mentioned above were tried under the Repre- sentation of the People Act. 19 51 the relevant provisions of which are somewhat different from those in the Act of 1952. Under the 1951 Act ali electio:n can be declared to be void if, inter alia the High Court is of opinion that any corrupt practice has been com- mitted by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his · election agent. S. 123 of the Act of 1951 specifies what are the -corrupt practices for the purposes of the Act. Section 99 of the Act of 1951 makes it ~ncumbent upon t~e High Court when it declares the election of a returned candidate to be void on the basis of a charge made in the petition of any corrupt practice having been committed at the electiQn, to record a finding whether any corrupt practice has or has not beem: proved to have been com· mitted; but a person who is not a party to the petition is not to be named by the High Court under this section unless he has been given notice to appear before the High Court and to show cause why be should not be so named. Liberty is also given to him in case he appears i~ pursuance of the notice to cross-examine any witness who has already been examined by the High Court and calling evidence in his · defenee and of being heard. The Act of 1952 does not contain any similar provision. c There can be no doubt that a charge of undue ~nfl.uence is in the nature of a criminal char.ge and must be proved by cogent and reliable evidence not on the mere ground of balance of probability but on reasonable certainty that . the persons charged therewith have committed the offence ~ the strength of evidence which · · leaves no scope for doubt as to whether they had or had not done so. It must also be r~membered that even if there be no provision in the Act ot 1952 of giving notice to the persons who are charged with having committed undue influence or of impleading them as parties, it is the duty of the election petitioners to lead direct evid- ence on the point an,d the respondent ~annot take shelter behind the plea that he owes no duty to call them or to disprove the aile- gations made against them if he is to have his election maintained (I) [l969J 3 s.c.a. 603. 8. IC, SINGH v •. IBil v. VI GW (Mltt~, 1.) ~y .the Court. There is a special provi,ton in the Act of 1952 which is absent from the Act of 1951 ill that an olection mA'/ bo set aside on the ground of the commiss1on of unduo in1luen~ by persons who are not agents of the retumed candidate and whose action.has. not been connived at by hun if the court finds that the result ot the election has been materially affected by the commiSSiOn B of undue influence by outsiders and complete strangers to the election. The anatogy of the trial of an election petition with that of. a criminal charge cannot be pushed too far. There are inherent difierences between the two in the matter of investigation. The vital point of identity in the two trials is that the court. must be able to come to a. conclusion beyond any reasonable doubt as c to the commission of a corrupt practice. The court looks for reliable independent evidence to establish charges of a crimin?l nature but unfortunately such evidence is found to be lacking in a great many cases. It is well-known that even in cases where persons are charged with murder, independent witnesses fight shy of the witness box and are not called to support the prosecution case; the Judge bearing such a case has to make up his mind on the evidence of witnesses who are partisan in the sense that they are related to the victim and shift the same carefully to make up his mind whether the charge is established. The same is the case in the trial of most of the election petitions. Election petitioners nearly always examine persons who are their supporters, while the returned candidate follows the same course. This takes place in particular where charges of undue. influence and bribery are level- led. However onerous the task of the court may be because of the partisan nature oi the witnesses, it cannot reject the oral evid- ence adduced merely on that ground, but it has to exam#le the satne carefully and come to a conclusion whether .the evidence establishes the corrupt practice beyond reasonable doubt. Even in a criminal trial the court can hold a person guilty of a crime on the strength of evidence of partisan witnesses if they are found to be reliable although there may be no independent corroboration thereof and I see no reason to depart from that principle in the trial of an election petition where charges of offences culpable under the Indian Penal Code are levelled. In this case no less than 116 witnesses were examined, 55 on the side of the petitioners and 61 on the side of the respondent. A good many of the witnesses are persons who have held or still hold high offices. Excludin~ a few nearly all of them are elected r~presentatives of the people either to the Houses of Parliament ot to the Legislative Assemblies of the States. They are llleD whose ~vidence in the ordinary course of things should carry great weight but unfortunately a good many of them are members of two hostile camps who came to court resolved to do their best for orie side or the other. It is well-known that the old Congress. 12-L308 Sup. CI/71 SUPREME COURT llBPOR.TS Party is no longer united and that there has been a sharp clevage among its members and before the hearing of the ~Iection petitions one group came to be known as Congress ( 0) and the other Congr~.s (R). The clevage is referred to in the petition itself. Persons who have figured as witnesses but do not belong to either of these parties generally but not universally have their affinity for one side or the other.. It has also come out in evidence that the split in the Congress Party originated back in April 1969 when there was a meeting of the A.I.C.C. at Faridabad. The di1Jerence of opinion seemed to stem from opposite views held by some lead- ing members about the steps to be taken for the economic progress of the country. It came out clearly in the evidence of Sri Shankar Dayal Shanna (a witness for the respondent) and a member of Mauhya Pradesh Legislative Assembly who had been in public life for about 32. years. He became a member of the All Ind1a Con- gress Working Committee in January 1968 and was appointed General Secretary of the Indian National Congress in April 1968. He continued in that post till the 1st November 1969 when he submitted his resignation at the request of the then Congress Preside11t, Sri -Nijalingappa. His evidence whidh was not chal- . Ienged in cross-examination shows that at Faridabad session a new procedure was adopted for splitting the A.I.C.C. in~o three panels. In the economic panel serious differences -arose between the mem- bers specially between the Chairman, Sri Morarji Desai and some of its members and no ref>Ort could be finalised. According to the witness there was a demand for nationalisation of hanks by some members which was resisted by the Chainnan and some others. It is not 111.ecessary to mention the various points of difference between the members of the panel but according to this, witness the Prime Minister and Sri Morarji Desai held <:o~trary _views on this point. According to Sri Nijalingappa who figured as a witness for tJ:te petitioners the question of selecting a p~rson fit for th~ office ?f the President arose very soon after the demtse of Dr. Zakrr Husam early in May 1969. He claimed to have ~ound~ tie Prime Minister on more than one occasion in the months of May and June to fix uoon a oro~ person .for the .office but n~thing ~suited. When they met -at Ban~ai'ore in July 1969 the questfun cropPed up again. · The Prime .Minister told him at the meeting 'J! the 12th July that she had the respondent in her mind but she ft'und no encouraging response to her propos~I.. · Sri Nijalingappa then said that members might suggtst othe~names whereupon the Prime Minister proposed the name of S · Jagjivan Ram and Sri S. K. Patil suggested the name of Sri San'iva Reddy. As no agreement could·be arrived at, the matter was put to vote and Sri S. K. Patil, Sri Morarji Desai, Sti Chavan and Sri Kamaraj Nadar were ~n fuvo,ur of Sri Sanjeeva Reddy w~ile the Prime Minister and Sri c s. K. smoH v. smu v. v. auu (Mitter, J.) .Fakhruddin Ali Ahmed supported Sri J agjiwar Ram. Neither Sri J agjiwan Ram nor Sri Nijalingappa expressed any opinion. Accordmg to Sri Nijalingappa, the Prime Minister expressed un- happiness over it and said that serious consequences may follow. c It is the case of the petitioners as brought out in the evidence that although the Prime Minister signed the nomination paper of Sri Sanjeeva Reddy within a few days thereafter she did not take any other step to ensure his success at the election. It also in evidence-and is a matter of common knowledge-that imme- diately after the conclusion of the Bangalore Session the portfolio of Finance was withdrawn from Sri Morarji Desai and the Bank Nationalisation Qrdinance was promulgated just before the meet- ing of Parliament in July 1969. The split in the party which had been dormant before came to limelight soon afterwards. Although the two conflicting groups came to be known as Congress ( 0) aud Congress (R) some time thereafter there can be little doubt that the seed of dissemination was bearing fruit and mutual suspici<ii1 between the members of the two groups came to the surface. The Presidential election which was held on 16th August 1969 was in the. offing but it seemed to have been made the venue for clash of ideologies and test of strength. According to Sri I. K. Gujral a witness for the respondent, the under current of difference between the parties since the Bangalore Session of the Congress came to the surface early in August 1969, the decisive factor being Smt. Tarkeshwari Sinha's article in the Search Light suggesting a move to throw out the Prime Minister. According to Sri Gujral many people were of the view that the Congress President Sri Nijalingappa had tried to make a deal with Sri Ranga of the Swatantra Party and Jan Sangh for a coalition Government and the eJection .of Sri Sanjeeva Reddy as President was considered to be a step in that direction. That there was a sharp difference of opinion and the arraying of members into two warring camps at or about that time admib! of no doubt or dispute. Whoever be the authors or the· printers of it, the distribution of the pamphlet started round about 9th or lOth August. From the 11th August cm:respondence 'started between Sri J agjiwan Ram and Sri Fakhruddin Ali Ahmed on the one side and Sri Nijalingappa on the other, as well as between the Prime Minister and Sri Nijjl}ingappa. As a matter of fact the correspondence between the Prime Minister and Sri Nijalingappa hat! started as early as 16th July. In the letter of that date {Ex. P -41 ) the Prime Minister complained that she was deeply distress- ed by the stories in the Press attributing all kinds of motives to her and said that newspaper speculation about her alleged reaction to the decision of the P.arliamentary Board were wholly misconceived and inspired by interested elements. On Au!!U~t 11, 1969 Sri "370 SUPREMB COURT REPORTS ':J·a$Jiw~n Ram and Sri Fakhruddin Ali Ahmed wrote to Sri NiJtdittg~ppa : "Cons.iderable confusion exists in the minds of nume- rous members of our Parliamentary Board regarding the ta1ks made on your own initiative with some of the leaders of the Jan Sangh and Swatantra Party and that it was claimed that as a direct result of your talks the Jan Sangh Executive has decided to support Sanjeeva Reddy." !he w~te~s compl~ed that the ~embers of the Congress Party were consrderably agttated over this and ugly rumours were afl.oat the situation had worsened because those whom Sri Nijalin- gappa had . approached and their representatives had openly demanded the removal of the Prime Minister. They ended the letter by saying : "Unless the whole position- was fully clarified and the basis of Sri Nijalingappa's talks and the readiness of the other parties to support Sri Sanjeeva Reddy were satisfactorily disclosed it might have great repercussions on the Presidential election." To ~is Sri Nijalingappa replied on August 13th saying that ·although he had met the writers the day before the poi"nts raised in the lC?tter had never been canvassed. Sri Nijali:ngappa further stated that he had been approaching every party for its support and requesting every voter {or his vote in favour of Sri Sanjeeva Reddy in accordance with past traditions. Correspondence went on in the same vein up to the 18th August even after the taking of the poll. According to Sri Nijalingappa's letter to the Prime Minister dated the 15th August the members of the Parliamentary Board , hlid ~greed on the lst August that he might contact all parties and v.'Qters ·to seek for their support and he had reported to the Congress Parliamentary Board meeting held on the 5th about his talks with the oppo$ition parties. Further there never was any understanding with Jan Sangh or the Swatantra Party beyond seeking their sup- port at the Presidential election and the demand for a free vote which.had already been raised was in fact a claim of right to vote · for the respondent, a candidate nominated by the Communists and C01ti11iunalists. No .useful purpose will be served by referring to the said correspondence in detail and mention has been briefly made of the same oi:t1y to bring out in sharp focus the difference between the two groups. Members of the two groups who have apneared as witn~ in this case had defi.nitelv taken sides some dav~ before the date ·of the poll. According to some witnesses examined on c c S. K. SINGH v. SB1U V. V. GIRl (Mitter, J.) behalf of the respondent, the manner of selection of Sri Sanjeeva Reddy was against all past traditions of the Congress as no attempt at consensus was made before the matter was put to vote. Some eve~ felt that the Prime Minister should not have been over-borne in the way she was done on the 12th July. ~atever might be the individual 1 eactions of the members of the two groups, there is no gainsaying that there. was a strong current of opposition to the election of Sri Sanjeeva Reddy as President of India and more than one wit:ness for the 1espondent includiilg Sri Yunus Saleem admitted that there was a campaign for getting signatures of members of Parliament on a document demanding the right to vote ' freely in the election. This in effect meant the right to vote · against the party affiliation although it was termed a right to vote according to conscie,nce. I now proceed to consider the contents of the pamphlet in detail and then examine the evidence adduced to find out whether any and if so, what use was made of it by any one in a manner which could be said to amount to an attempt to interfere with t11e free exercise of any person's electoral right within the meaning of s. 171-C of the Indian Penal Code. It is also necessary to scruti- · nise the evidence to see whether the charge levelled by the peti- • tioners that the pamphlet was the work of a group of people supporting the Prime Minister and secretly working for the success of the respondent is borne out. Although the pamphlet on the face of it was anon~~ous, there are certain indications in it to show its probable ongm. The document purports to be addressed to "fellow Congress Members of Parliament and the Vidhan Sabhas" by "Congress Workers Committee to combat the Syndicate" and bears the date 9th An \'.Ust. It starts off thus : "Our great Party (obviously referring to the Congress Party) which led the entire nation in the struggle agrunst British rule and had the glory of bringing independence to …. ota:- motherland, has today fallen into a slur of des- po·ndence and demoralisation. Into its leadership have crept in men whose record shows that they have sold their conscience to the rich and the corrupt, who are seeking to destroy all attempts of harnessing the Con- gress once again the service of the common people." It then goes on to charge that: "Self-seekers infiltrated into this great organisation …….. After Panditji's death it is a small click of un- scrupulous persons who landed themselves into what is SUPllE¥B COURT REPORTS called the syndicate and have tried to become virtual dictators." 'It ascribes the heavy defeat suffered by the Congress Party in the ge1;1eral election of 11!)67 to the management of its affairs by evil men. The reference seems to be to Sri S. K. Patil, Sri Atulya Ghosh and Sri Kamaraj. It then prpceeds to state (a) that at the then recent. Ban galore session of All India Congress Committee the. Prime Minister set out a programme for immediate reforms in the. P.C<>nomy of the country, (b) this not being to the liking of a smal 1. coterie described as ganster politicians they "decided· to set up one of their men, a corrupt and immoral person, Sanjeeva Reddy as the Congress candidate for the august post of President of India" and (c) this selection was made not only against the wishes of the Prime Minister of India but also without caring to consult the Congress Working Committee, Pradesh Congress leaders and the addressees. The pamphlet then seeks to analyse the reason behind this choice. To quote the words of the pamphlet itself : "That is because Sanjeeva Reddy himself belongs to this gang. Also the syndicate's plan is that if Sanjeeva Reddy could be made President -of India then it will be easier to block all enlightened measures; as President he will obstruct the present Government at every step when- ever any action. is taken against corruption or in the interest of the common people. The syndicate's agents in Parliament have been openly saying that if Sanjeeva Reddy becomes the President, they will drive out Smt. Indira Gandhi in a few weeks. They are all the more enraged at the nationaUsation of the 14 big banks which were only helping big capitalists to profiteer and amass black money. The syndicate is scared that such mea· sores would make Indira Gandhi more popular with the common man while they themselves have forfeited the confidence of the vast millions of our country. How panicky they are could be seen from the scurrilous writings of one of their li~utenants Tarakeshwari Sinh~ openly threatenine: that the synd1cate will fight and defeat Indira Gandhi. These unscrupulous bosses prefer that the Congress should suffer a crushing defeat in the next general elections in 1972 rather than that our Prime Minister becomes stronger. For they look upon Indira Gandhi as a thorn in their path; and they think the only way to comer her would be to make Sanjeeva Reddy the President. . . . . . · ti is aS pan of this conspiracy of the syndicate that Niialingappa, another syndicate boss (against whom c c S, K. SINGH V. SHRl V. V, GIIU (Mitter., J.) 37~ there are many grave charges of corruption) has already approached the Swatantra Party and the Jan Sangb, secretly planning with those anti-national parties for a coalition government with the syndicate Iea(lers … The rest of the pamphlet is aimed at denigrating Sri Sa:njeeva Reddy. It charges him with being a corrupt and unscrupulous politician whose misdeeds had been severely condemned by the High Court of Andhra Pradesh in 1964 and whose record ~ a Minister for Steel in the Central Cabinet had been so bad that he had to be dropped after the general election of 1967 and was put up as a Speaker of Lok Sabha on the pressure of the syndicate. The pamphlet proceeds to give instances of acts of misdemeanour committed by Sri Sanjeeva Reddy towards members of the other sex. It ends up with an exhortation to the addressees that ii they have to carry forward the programme of the Congress in the service of the Indian people and to weed· out corruption, nepotiSm and racketeering, they have to use their powers to defeat the syndicate lnter alia by rejecting Sri Sanjeeva Reddy. The pamphlet winds up with the tUllowing : "On each and every one of us lies the sacred respon- sibility of seeing to it that this living monum.ent-{)f moral depr~vity does not become the President of India. Remember this when you cast your vote in the ballot box QD. 16th August, 1969.." Although Mr. Daphtary put up a faint argument that this might be the work of any party or group opposing the Congress aad interested in its decline and fall, one can . not unreasonably take the view that in all likelihood a group of ·disgruntled Congress members were at the back of it. It. is to be noted that in the whole of the pamphlet which is a fairly long one, there is no refer- ence to .my other party. excepting where Sri Nijatingappa is des- cribed as having approached the Swatantra and Jan Sangh for a coalition Government. There is no reference to the respondent or anv other candidate at the election and there is no attempt to belittle or ridicule the members of any of the many other political .,arties in the country. At or about this time there was frequent reference in the daily :newspapers to a group in the Congress dubbed as syndicate and another group described as young Tudes who were in open rebel- lion a!!ainst the syndicate. The pamphlet shows that the authors ~ereof were of the view that the Prime Minister was attempting · to eive what according to them was a correct lead to the country and that she . was sought to be thwarted by the members Ol the syndicate. So much so that the latter were· said to have· entered [1971] 2·S.C.R into a conspiracy to oust the Prime Mmister from her position .a,Dd. set up a coalition government. This is sought to be supported by writing ascribed to Smt. Tarkeshwari Sinha as openly threaten- ing the defeat of the Prime Minister by the syndicate. There are thus strong indications in the pamphlet to show where it could have come from and who were interested in the defeat of Sri Sanjeeva Reddy and the motive behind this move. It has come out in the evid~e of a number of persons examined on behalf ·of the respondent some of whom admitted themselves to have been described in the press as young Turks, that their views about the management of the affairs of the Congress Party by some senior members of it described as syndicate was similar to that expressed in the pamphlet. Sri Krishna Kant (R.W. 32) admitted that he himself, Sri Chandrasekhar (R.W. 5), Sri Mohan Dharia (R.W. 17), Sri Santi Kothari (not exami,ned), Sri Amrit Nebata (R.W. 3), Sri Sa5hi Bhushan (R.W. 38), Sri R. K. Sinha (R.W. 8) and -others were described ·as young Turks and that the syndicate was composed according to the press of members like Sri Nijalingappa, Sri Atulya Ghosh, Sri S. K. Patil and others. Sri Sanjeeva Reddy according to this witness wali also considered to be a part of the ·syndicate. Most of these persons when examined openly stated that tliey had decided to go against the selection of Sri Sanjeeva Reddy by the syndicate, that they were supporting the candidature _ ·Of the respondent and that there was a signature campaign in favour of freedom of vote. Sri Krishna Kant himself admitted having been responsible for getting such signatures and so did Sri Yunus Saleem (R.W. 51). Sri Krishna Kant frankly admitted that when they could not support Sri Sanjeeva Reddy they could not possibly support Sri Deshmukh, another candidate at the election who was a Jan Sangh candidate which left only the respon- dent on the field. Evidence on much the same line was given by other witnesses examined· on behalf of the respondent. Sri R. K. Sinha (R.W. 8) stated that "the syndicate was taking the Congress to the funeral pyre in West Bengal, Madras and .Kerala". He also said that th~ m'ajority of the group known as youn~ Turks had declared their support for the respondent. He admitted having made a public speech about this· time to the effect that the members of the syndicate were opposed to the formation of Congress Socialist Party 'and had "planned to fill the political vacuum after Panr'lit Nehru." When his attention wa& drawn to the pamphlet Sri Shashi Bhushan (R.W. 38) approved of the statements made in the first three paragraphs n'amely that a set of . self-seekitng, corrupt ~nd unscrupulous persons had J!rabhed power in the Congress or!!~ni~ation after the death of Pandit Nehru and it was because of thPir misdeeds that the party -had suffered ' reverses in the election of 1967. It should be noted that Mohan c S. K. Sll,GH v. SWU v. V. GIRl (Mitter, J.) Dharia's attitude in the Presidential election somewhat different from that of the otner young Turks. It would appear that the precliv~ty of this group ~ pe~~ described as. ~oung Turks ~d their support for the Pnme MljD[Ster and oppos1t10n to the ~;eruor members of the Congress fold like Sri S. K. Patil, Sri Kamaraj and others was sought to be utilised in the election petitions by openly averring that the supporters of the Prime Minister were behind the publication and dissemination of the impugned pamph- let. The evidence adduced does not bear this out. c The authorship of the pamphl~t not being traced, we have to sec whether the dissemmation of it in the manner deposed to was sufficient to establish the commission of undue influence. I have no doubt that if the statements contained in the pamphlet were made the subject of a verbal appeal by one member of the electoral CQlloge to another and particularly those in the Congress fold, a very strong case for the exercise of undue infl.u~e would be made out. There would not in my opinion be rn'lCh difference between such an appeal and an appeal in writing signed by one elector to another. In such a case it could be said that the elector m~g the appeal was trying to misuse his position and seeking to influ- ence the other and attempting to interfere with the free exercise of the other's electoral right. But the ~vidence adduced falls far short of the proof of any such case. It is the admitted case of the . parties that tlte pamphlet was very widely disseminated through the post among members of Parliament and members of the Legis- lative Assemblies hailing mostly from U.P. but 111ot being confined to that State alone. The case of the petitioners is that not only was the pamphlet broadcast by post but there was free distribution of it among members of both Houses of Parliament i.e., in the Central HaU of Parliament from the 9th to 15th August. Refep ence was made to the proceedings of the two Houses to show that complaints about the distribution of filthy pamphlets in the Central hall of Parliament bearing on the Presidential election were being made in the Lok Sabha. Although in the pleadings a specific case was made that some prominent members of the Congress Party supporting the Prime Minister like Sri Jagjiw~ Ram had gone to the residence of certain members of the electoral college for per- sonal delivery of the copies of the pamphlet to them, practically :no attempt was made to su~stantiatc such allegatjon by oral evid- ence in court. A& regards distribution of the pamphlet in the Central ball ot Parliament there was evidence given llY the ft~llow ing witnesses for the petitioners, namely, Sri Kanwarlal Gupta (P.W. 2), Sri K. S. Cbawda (P.W. 3), Sri N. P. C. Nafdu <P.W. 6)r Sri Shiv Narain (P.W. 12), Stnt. 1. B. Shah (P.W. 13). Sri . N. N. Patel (P.W. 14), Sri Mohanlal Gautam (P.W. 27). Sri C D. Pandey (P.W. 17), Sri D. N. Deb (P.W. 18), Sri Hukumchand Kachwa (P.W. 20), Sri M. Rampure (P.W. 23), Smt. l»ushpa SUPREME COUR.T R.EPOR.TS (1971] 2 S.C.R . . Mehta (P.W. 24), Sri Morarji Desai (P.W. 27). Sri Ran1Kishan Gupta (P.W. 30), Sri D. S. Raju (P.W. 35), Sri Patil Putappa (P.W. 36), Sri Sher Khan (P.W. 37), Sri Choudhuri A. Mohamed (P.W. 38), Sri C. M. Kedaria (P.W. 39), Sri N. Ramreddy (P.W. 40) and Sri Abdul Ghani Dar (P.W. 41). On the other hand a substanthll number of witnesses examined by the respon- dent numbering no less than t\\·enty gave evidence to the effect that they never saw any such <li~tr!bution. Effort wal) mad., by co~] for the respondent to establish by cr~-examination that such distribution of the pamphlet would not have been allowed by the Watch and Ward department of the Houses of .Parliament. Among the persons who were supposed to have been responsible for the distribution in the Central hall of Parliament the prominent figures were .sri Yunus Saleem, . Sri Chandrasekhar, Sri Sashi Bhushan, Sri Mohan Dharia and some others. It is somewhat strange that most of these people when examined not only denied having participated in the distribution but went to the length of stating that they had never seen the pamphlet before they came to court. although· some admitted having heard discussion betw~n members regarding it. Accordilng to some witnesses for the peti- tioners prominent among whom were Sri Morarji Desai, Sri S. K Patil and SOme others, the pamphlet was the t11lk ot the town fOT days and the Central hall of Parliament was full ol it. There is thus a direct conflict of testimony about the distribu- tion of the pamphlet but there can be little doubt that the pamphlet did find its way in the Central hall ar1d I have . no doubt that quite a few copies of it had been distriouted in the hall it:;elf. That there was a good deal of talk among the members and discussion over the pamphlet admits of no doubt. lt is diffi- cult to believe that unless the pamphlet was there in the Central hall people would be discussing the contents of it in the abstract. No witness suggested that he himself had taken a copy of it to the Central hall. The obvious inference from all this is that there was some distribution i1n that hall although probably the petitioners were trying to exaggerate the extent of the distribution while wit- nesses for the respondent were equally interested in denying it wholesale. Hardly any witness came to the witness box to state that he was not only. given a copy o{ the pamphlet hi the Central hall but approached and appealed to personally to carry out the mand·ate contained in the concluding portion thereof. The sub· . stantial evldenco of the witnesses for the petitioners was merely to ,tho effect that copies were being distrlb_pted in much the 8ame fuhton · a1 hand·biJJs arc distributed by adverttslni agents of tradelmen on the itrcet, . I mav ·refer to the evidence of imP.ortant witnesses lor the .Petitioners who spoke about such distribution. P.W. 11 Sri c s. K. SINGH ¥. SHlU v. v. GllU {Mitter, /,) Kanwarlal Gupta. himself an advocate in his examination-in-chief said that he saw the pamphlet for the first time on the 12th August being distributed in the Central hall of Parliament by some mem- bers, namely, Sri · Y unus Saleem, Sl'i Sashi Bhushan and others. According to him the pamphlet created such a prejudice in his mind against Sri Sanjeeva Reddy that he did oot pursue his inten- tion to mvite him to dinner at his house although he had already mentioned the subject to Sri Sanjeeva Reddy. He also said that he had discussion with other members of Parliament about the· pamphlet who held the same view as himself. P.W. 12 Sri K. S. Chawda, another member of Parliament said that he had received a copy of the pamphlet in the Central hall of Parliament from c Sri Krishna Kwnt, member of the Rajya ~abba and having read it came to the conclusion that if Sri Sanjeeva Reddy was elected tO· the Presidential office he would tum the Rashtrapati Bhavan into a centre of immorality. Of his own he said nothing about Krishna Kant's appeal to him but when he was specifically asked whether Sri Krishna Kant had told him anyth~n,g at the time he said that Sri Krishna Kant had only mentioned what was in the pamphlet. Sri M.P. Venkataswamy Naidu P.W. 17 claimed to have received a copy from Sri Yunus Saleem iro. the Central ball. He also said. that he wanted to meet the respondent to ask him to contradict the pamphlet because his supporters were distributing it. He went to the re~nondent's house in Defence Colony but did not succeed in contai ng him and wrot~ 1l letter requesting him to contradict the contents of the pamphlet but-he had never communicated to the petitioners the fact of having written such a letter. Sri Nanu~ bhai N. Patel, P.W. 26. a member of the Lok Sabha said that Sri sa.,hi Bhmhan, Sri Chandrasekhar and Sri Yunus Saleem were distributing the pamphlet about 12th or 13th August. When they came to the witness to give him a copy he told them that he had· already received one at his flat whereupon they asked him whether he had gone through it thoroughly. On the witness's answering in the affirmative they asked him to be careful and to consider all the facts before voting. Sri Mohanlal Gautam who was elected· to the Raiva Sabha on the 13th August 1969 ·and taken his oath -on the dav following claimed to have received a. copy of the oam- phlet in the Central hall of Par.liament from Sri Shashi Bhushan but had nothini to say about any personal appeal to hfm. Sri C. D. Pandev P.W. 29 said that he 'had seen Sri Sashl Bhushan. Sri 'Kri1hna KAnt. Sri YU!tlUS Sa1eem ·and others distributing the· pamphlet fn the Central hall of Parliament in 2 or 3 batches but thev dfd not jl!ve him a copy. In cros•·examfnatlon he Nllld that he had never told Sri R'amreddy, the ftnt J)etltloner fn Pstltlot1' H N'o. 4 th11t the pam"blet had been given to him fn the Central hall of Parliament bv SrlJagiiwan R~m and other members nf Parlia- ment. Thic; answer ig surprising as the witness himself was one of the petitioners in Petition No. 4 who never cared to read the · SUPIUIME OOUllT IUIPORTS (1971] 2 S.C.R. whole petition. According to the verification of the answer to the particwars given by Sri Abdul Ghani Dar, Sri C. D. Pandey had received a copy of the pamphlet in the Central hall of Parliament from Sri Chandrasekhar and this was based on the information alleged to have been received from Sri C. D. Pandey himself. At this stage I may mention that the major portion of the particulars regardmg the distribution of the pamphlets and the information thereof claimed to have been received by Sri Abdul Ghani Dar in particular from the recipients were not corroborated by most of these persons when they figured a.s witnesses. Sri Hukumchand Kachwa, P.W. 32, a member of the Jan Sangh said in his examina- tion-in-chief that he had got a copy of the pamphlet in the Central hall of Parliament from Sri Sashi Bhushan Bajpay and Sri Jagjiwan Ram and the fonner had told him that the witness should support the respondent as he was a champion for the cause of labour and that Sri Sanjeeva Reddy was a characterless person as could be seen from the pamphlet itself. He would have the court believed that after reading the pamphlet he thought that a person possessing a character like Sri Sanjeeva Reddy's if elected would convert the Rashtrapati Bhavan into a brothel. Sri Mahdevappa Rampure, P.W. 35 said that he had got a copy of the pamphlet from Sri Yunus Saleem who had told him at the time of the distribt•tion that the witness could get enough infonnation from the pamphlet. Sri R. K. Gupta, P.W. 43, a member of the Lok Sabha who had :received a copy of the pamphlet at his residence said that he had gone to the respondent thereafter on being informed by his da";;hter that a telephone call had come from the respondent. The respon- . dent had 8..1ked the witness to support him which the latter refused. "The witness however claimed to have told the respondent that pam- . phlet like the ~ he had received should not be used and should be contradicted by his party whereupon the respondent had sought to excuse himself by saying "What can I do." Although he had seen the pamphlet·being distributed in ·the Central hall he did not re- member who were doing it. Sri D. S. Raju, P.W. 49, a member of the Lok Sabha, said that he had received a copy in the Central hall ot Parliament and so far ·as he could remember it was Sri Yunus Saleem who had passed it on but had not spoken to him at the time of making it over. Sri Patil Putappa, a member of the R"ajya Sabha, P.W. SO, said that he had seen Sri Yunus Saleem distributing· the pamphlet in the Central hall and had received a copy from him. He claimed to have to1d Sri Yunus Saleem that the latter was acting improperly whereupon Sri Yunus Saleem had r~uked him S'ayin" that it was none of the wi~ss's busjness. 'Sri Ramreddy, P.W. 54, one of the petitioners in Petition No. 4 said that he had received a copv in the Central hall o.f Parliament from Sri Yunus Saleem and Sri Sashi Bhushan distributinJ!' copjes together. He also said that he had seen not only Sri Yunus Saleem c c S. K. SINGH v. SHRl V. V. GIRl (Mitter, J.) '3fDd Sri Sashi Bhushan but Sri Krishna Kant, Sri ·S. M. Banerjee,. Sri Moulana Ishaqi, Sri Chandrasekhar and Sri Mohan Dharia all named in the petition distributing the pamphlet. He averred that he had complained to the Deputy Speaker of the House about thr unlawful activities of Sri Yunus Saleem whereupon the latter bad run away from the house. He also said that the proceedings ohhe House would support his statement. Reference was made in this. connection to column 3813 of the proceedings of the Rajya Sabl,l.a dated the 13th August 1969. The official report of the proceed- ings shows that Sri Ramreddy was making a complaint about Sri Yunus Saleem goin~ about collecting signatures on a piece of paper and making a political campaign of collecting signatures to the- paper in tbe house and further that he was going from member to member. On being asked by the Deputy Chairman as to whether the witness himsolf had been approached, Sri Ramreddy .said that Sri YW1us Saleem had gone to Sr,i Muniswamy whereupon Sri Munisw~y said that he (Sri Yunus Saleem) had asked one Sri Kulkarni to sign. Sri Ramreddy thereupon had said that Sri Yunus Saleem had some document of a political nature in his hand a.nd the house was not meant for such activities. When he was referred to a passage in Petition No. 5 wherein reference was made to Sri Yunus Saleem's activities he said that he was not very definite "about the signature business" and he did not ko.ow whether. Sri Yunus Saleem was in fact collecting signatures of others on any document. It was only Sri Abdul Ghani Dar who said that at the time of giving him a copy of the pamphlet in the Central hall Sri Y onus Saleem had told him that Sri S. Reddy was a ~bauchee, that he was in collusion with Jan Sangh, that the Prime Minister and others were all against Sri Sanjeeva Reddy and that if Sri Sanjeeva Reddy won the election it would be a victmy for Jan Sangh and Muslims would be eliminated. The above is not exhaustive of the evidence adduced on beha1l of the petitioners with regard to the distribution of the pampblct in the Central hall as a means of exercising undue influence over electors but it is a fair summary of the evidence adduced which on the face of it barring that of Sri Abdul Ghani Dar, falls far short of a personal appeal or any effort to pursuade a voter by deflection of his will and interference with his electoral right. Sri Yunus Saleem as well v the other persons commonly referred to as younr Turks stoutly denied having ever engaged themselves in any dis· tribution of the pamphlet and most of them disclaimed ever having come across it before they figured as witnesses in court. Sri Abdul Ghani Dar's statement in the witness box abOut Sri Yunus Saleem having taken him aside for making an appeal is directly contradict~ ed by a statement in the petition where in paragr:aph 13(b)(iv} SUPREME COURT REPOllTS [ 1971] 2 S.C.R. he had stated that his talk with Sri Y ~'us Saleem had taken place in the presence of a number of members of Parliament. It would be expected that Dar would remember the facts of the distribution more clearly on the 16th September 1969 when the petition was filed than when he came to the witness box in March 1970. Whateyer be the reason for the deviation in the Statement on oath beiore the court from that in the petition it does not inspire confidence. The witnesses for the respondent adduced various reasons in their lengthy cross-examination based mainly on political animosity for the witnesses for the petitioners deposing in regard to distribu- ti~ of the pamphlet by .them. From the manner in which these reasons were given out in quick succession it would appear that .. they had come well . prepared with the case they had to meet. However that may be there was direct conflict of testimony between the two sides and it would not be uncharitable to remark that truth sat very lightly on the lips of most of the witnesses. In my view the evidence falls far short of any personal appeal through the means of the pamphlet and I cannot hold that the offence of undue influence was committed by some people by merely distributing the same. Such distribution may attract culpability under s. 171-G of the Indian Penal Code but would not per se attracts. 171-C. I do not therefore find it necessary to refer to the evidence of witnesses lor the respondent on the question of the exercise of undue influence by distribution of the. pamphlet. While I find myself unable. to say that they were all speaking the truth when they said that they had not seen the distribution of it m the Central hall or that they had not seen a copy of the pamphlet before they came to the witness box, I cannot hold in favour of the petitioners m~l:y because some of the witnesses for the respondent were not witnesses of truth. It would be unprofitable to examine the evidence closely to find out where they lied or the extent of untruth uttered by them. Such an analysis might have become necesSary if I had come to the conclusion that there was a: prima facie case made out by the petitioners about the exercise of undue influence by mere dissemi· · nation of the pamphlet which could be contradicted by the respondent's wltnessea. The above being my view on the question oft the exercise of undue jnftuence by means of the l)ublicatJon of tit\ pamphlet und the cllueminatlon of it, the question of the reapondent't connlvlna at Jt dou :not arise. I may however indicate shortly the respective cases or tho parties. It was the case of the petittonert that the pamphlet originated from the camp of the Prime Minister and her ~upporters who were actively helping the respondent in his election c s. K, SINGH V, SHRl V. V. GIRl (Mitter, J.) campaign and it was tllese supporters who had taken to the meill tnc~ or publicauon ox me pampruet at the eleventh hour before the eiecuon so that tnere could be no ettective counter a~uon to the w11d propaganoa. Whatever tne cnarges raised agamst the Prime Mmister m tne petiuon no ev1dence was adduceo oo show that she was helping the respondent although it may be said that she did not help the cause of Sri Saneeva Reddy in the way she had dC'ne in the case of Dr. Zakir Husrun. Three witnes~es for the petitioners stated in their examinauon that they had been to the respondent's house in Defence Colony after the commencement of the publication of the pamphlet requesting him to make a state- ment himself in contradiction of the a.tlegations contained therein c and making it clear that he himself Q.ad nothing to do with it. It is difficult to appreciate what led these persons to think that the respond~t had anything to do with the pamphlet or that he was the proper person to issue a contradiction to the imputations therein made against Sri Sanjeeva Reddy. As I have already noted, th~ name of the respondent does not occur at all in the pamphlet nor is there any remote reference to him in it. The respqndent was not the only other contestant for the office. Sri Madhu Limaye, P.W. 8, and some witnesses for the respondent thought that it was the work of enemies of the respondent. Any statement of the respondent .disowning the pamphlet or even asking the electors to ignore it would only excite suspicion aga;nst him as involved in its publication. Sri N. P. C. Naidu P.W. 17 who claimed to have a copy of the pamphlet from Sri Yunus Saleem on the 11th or 12th August said that he had gone to the respon- dent's house in Defence Colony to get a contradiction to the pamphlet but could not meet him, as a result of the talk he had with the respondent's supporters who were there and later wrote a Jettu–to him asking him to counteract the propaganda in the pamphlet. The respondent however denied having received any such letter. Smt. Tarkeshwari Sinha P.W. 34, said that she had · golle to the respondent's house in Defence Colony on the 14th Au~st 84ld had met him in a verandah and shown the pamphlet to him and asked him to repudiate the contents thereof when the respondent had said "What can I do about it." As the respondent was unresponsive she had to come away. Not only, was this visit openly disputed by the respondent but several witnesses were exa- mined to show that she had not gon'e there. The security man said to have been potted ill the respondent's house deposed to the e!ect that he knew Smt. Tarkcshwarl Slnha and was positive· that •he had not gone there on the 14th August. The respondent hlm· ll1f ta!d that the sugpatlon that in the month of August a vt11tor of the poaltlon of Smt. Tarkt.shwari Sinha would have been received by hlr.D ·not in the air-conditioned drawing room where he was sitting but outside in the uncomfortably hot verandah was fantastic. The respondent's son-in-law ·'llsG gave evidence to the same effect. SUPREME COURT , REPORTS ·[1971] 2 S.C.R. Sri R. K. Gupta, P.R. 43, said that he had met the respondent two or three days before the date of the poll 31Ild told him that the pamphlet should be contradicted by his party when the respondent gave him the same reply as he had done to Smt. Tarkeshwari Sinha. Again this evidence was denied by the respondent as well as by his son-in-law. The evidence adduced on the two sides is directly contradictory to each other and it would have been the duty of the court to analyse the same in greater detail and indicate the reasons for accepting one. version and rejecting the other if the court was to take the view that there was exercise of undue influence by the mere dissemination of a sordid pamphlet. In the circumstances of the case it would be useless to go into the question any further. Another ·allied question which loomed large during the exami- nation of the witnesses was whether the respondent had in his election campaign gone to Lucknow and addressed members of the Legislative Assembly there and canvassed their support in his favour basing his claim on the support of the Prime Minister. This was detx>sed to in a general way by Sri Ram Singh P.W. 19 while Sri Mumtaz Mohamed Khan P.W. 44 went further and said that the respondent had told people at Lucknow openly that Sri Sanjecva Reddy was not a suitable candidate and that there were many ··stains on his character. Both these witnesses as also Sri Bansi- dhar Pandey, P.W. 18, Sri Jagdish Prasad, P.W. 20, Sri Rajendra- prasad Si~gh, P.W. 21, Sri Basant Lal Sharma, P.W. 22, Sri Ram- pyre Panika, P.W. 37 and Sri Abdul Saleem Shah, P.W. 38 depos- ed to the effect that two or three days after the visit of the respon- dent to Lucknow, Sri Dinesh Singh, the External Aff~irs ¥inister, had also gone there, met the members of the Legislati%. Assembly ·in groups of four or five in their hostel knoWin as Darul-Shafa and openly told them that the respondent was the candidate of the Prime Minister and that if the addressees did not support his candidature they would lose all the patronage of the Prime Minister ·in the luture. Some even said that Sri Dinesh Singh had threaten- ed them with refusal of party tickets i111 future elections if they were to go against the wishes of the Prime Minister. So far as the part imputed to Sri Dinesh Singh is concern~d, he denil!d having moved out of Delhi between the 1st and Y6th August and said that his first visit to Lucknow about this time was on 22nd August after the poll had taken place. It was put to him in his exnmion- tJon-in-chief as to whether he did go to tucknow on the 9th, t Oth or ·11th August and his answer was in the negative and he nvet·red that so far as he could recol1ect he had not gone to Lucknow before the 22nd. Sri Dinesh Bingh was subjected to prolonged cross- examin~tion and the· diaries of his engageme.nts maintained by his secretaries were made · the subject of close scrutiny before the c S. K. SINGH V. SlW V. V. GIRl (Miller, /,) 383 ' &ecretarics were made the subject of close scrutiny beiore the Court. The evidence of· Sri Dinesh Singh and of several other witnesses for the respondent was to the effect that whenever Sri Dinesh Singh left Delhi a tour programme would be issued for tbe guidance of officers in places to be visited by him a.nd no such tour programme was issued in the month of August before the 22nd. Sri Dinesh Singh funher stated that he had ·auen4ed an invitation to a party at Mysore House given by Sri G. S. Pathak, the then Governor of Mysore. In this he was supported by Sri 1. K. Gujral who produced a letter of invitation confirmilllg the throwing out of a party at the Mysor~ Home by Sri G. S. Pathak on the lOth Au!!ust and invitation to him thereat and stated that he disti:1ctly ren:lembered having· met Sri Dinesh Singh in that party. Quite a t number o{ witnesses examined on behalf of the respondent gave evidence to the effect that if Sii Dinesh Singh had gone to Lucknow between the 1st and 16th August they would have come to know of it and so far as their recollection went Sri Dinesh Sin~h did not go tl1ere during that. period. While it is true that the diaries pro- duced by the Secretaries of Sri Dinesh Singh were not as full or complete as regards his engagements as one might expect them to oe. I have no hesitation in holding that Sri Dinesh Singh did speak the truth iln that he did not go tp Lucknow during the period l.st to 16th August. It has come out in evidence that Sri Abdul Ghani Dar was preparing to launch an election petition against the res- pondent practically immediately after the declaration of the result and that he was busy collecting evidence in suppon of his 'petition. . Apart from the absence of any tour programme of Sri Dinesh Singh- it should not have been difficult for the petitioners to produce evidence either from the records of the railways or the. Indian Airlines to show that some r~servation of accommodation had been made for Sri Dinesh Singh's · iourney to Lucknow and back at or ·about this time. No attempt was made to produce any. such records. Counsel for the petitioners even went to the length of suggesting to Sri Dinesh Singh in cross-examination that . it was possible for him to have travelled to Lucknow from Delhi 'by road and come back the same way so as to leave no record of reser:- vation either by rail or by air. In my view, the sugges~im'l is of little value. After all even according to the evidence of witnesses for the petition~rs Sri Dilllesh Singh's visit was not a secret one. He is suposed to have gone there to meet people in order to canvass s~tpport for the respondent from a· large number of members of the U.P. Legislative Assembly and there was -rio reason 'IJ{hy he should try and avoid a more comfortable journey by rail or air rather than undertake motor-car journevs of over 300 miles each wav. My definite conclusion is that Sri Dinesh Singh did not go to Lucknow as alleged by some of the witnesses for the petitioners at or about the time alleged_ and consequently he· did not canvass support in favour of the respQndent as imputed to bim. ll-LJOBSupCT /71 (1971] 2 S.C.R As regards the evidence of the two witnesses about l.he respon- dent addressing members of the Legislative Assembly of U.P. in his o'Yn support by saying that he was the candidate of the Prime Minister or that Sri Sanjeeva Reddy was not a_ fit person for election to. the high office Orf the President of India, I have no hesitation in holding that it cannot be true. According to the evidence of Sri Mumtaz Mohamed Khan, P.W. 44, the persons present at the time when the respondent was castigating Sri Sanjeeva Reddy were Sri Basant LaJ Sharma, Sri Abdul Saleem Shah and Sri Kalpanath . Singh. Sri Kalpanath Silllgh was not examined but the otller two were ·and neither of them had anything to say on this subject A.ccordin$! lo Sri Abdul Saleem Shah it was Sri Dinesh Singh who had told the members of the Legislative Assembly at Daml-Shafa that Sri SaNeeva Reddy and his group were working in collusion with Jan Samgh and it would Qlot be proper to vote for him. Sri Dinesh.Singh is also alleged to have said that Sri Fakhruddin Ali Ahmed wanted. that no Muslim should vote for Sri Sanjecva Reddy as he· and his supporters were anti-Muslim. As I have held that .Sri Dinesh Singh did not go to J..ucknow at the time alleged he could not have canvassed support for the respondent as deposed to by the witnesses. In his evidence the respondent stated that he had not spoken to the Prime Minister or any other Minister before annvuncing his candidature for the office of the President of India. He had noth- ing to do with the Congress Party after 1957. After demitting office of the Vice-President of India working as the Pres1dent he · had left Rashtrapati Bhavan and gone to his son-in-law's place in Defence Colony. He had been out of Delhi from the 28th July .to 13th August going round to the different States : he had come back to Delhi on the 1Oth August only for a few hours. He admitted having gone to Lucknow on his tour but he did not meet the legislators. there in groups as suggested by some of the witnesses but_ had spoken to them at a fairly well-attended meeting. He denied ever having referred to Sri Sanjeeva Reddy in his sreech ·or said anything about hls character. He denied' having any knowledge of the distribution of the pamphlet and stated expressly that nobody had ever complained to him that a pamphlet againM-the personal conduct and character· of Sri Sanjeeva Reddy was being distributed. He did not see Sri Abdul Ghani Dar's letter alleged. to have been written to him on the 11th August. He. did not meet the Prime Mi111ister between the 20th July and 16th Au~st. He said that he had published a pro~amme of his mtended tour to the capitals of the different States like Lucknow, Patna, Calcutta etc. and 'bad informed some of his friend~ who were -takin~ interest in him about his prol)()Sed visits. He stated furt]Jer that although he had toured the States fairly extensively he did c S. K. SINGH V. SHRI V. V. GIRI (Mitter, J.) not approach the members of Parliament in Delhi personally as he W'as fairly well kno\Wl to them. Counsel for the petitioners tried to make out a case that the respondent did not do any canvassing in his own support in Delhi because he was aware that others were effectively doing it. It was ev.en suggested that some sort of arrangement must have been arrived at in July 1969 that if his name was not acceptable to the Congress Parliamentary Board he would immediately announce his own candidature for the office of the President. The respondent stoutly denied this and said there was no truth in it. In my view the charges levelled against the respondent as mentioned above were not borne out by the evidence. Another aspect of the case of the petitioners under the heading of undue influence was that an attempt was made by a number of persons supportim:g the respondent to raise a scare to the effect that a vote in favour of Sri Sanjeeva Reddy would be against the interest of persons professing the Muhamedan faith. In Petition No. 5 of 1969 it was formulated in paragraph 13(c)(iii) to the effect that Sri Fakhrudin Ali Ahmed and Sri Y:unus Saleem had represented to the Muslim voters that Sri Sanjeeva Reddy was in fact a candidate of the Jan Sangh Party and held out a threat that if he was successful the fate of the Muslim community in Tndia would be sealed. An instance is given of the conversation of Sri Yunus Saleem with Sri Abdul Ghani Dar and such influence was said to have been exercised over all the Muslim voters in the country specially those iln Parliament. In the particulars supplied with regard to this pleading in the petition, it was said that the threat was given by Sri Fakhrudin Ali Ahmed to Sri Abdul Ghani· Dar, Sri Sher Khan nad Sri Choudhary A. Mohammed at their residence over the telephone by Sri Yunus Saleem to these three persons on the same day in the Central hall of Parliament. There was some amplification of it in the evidence. Sri Abdul Ghani Dar's statement in the witness box that Sri Yunus Saleem had called him aside in the Central hall of Parliament to convey the threat to Muslims in case of Sri Sanjeeva Reddy's success varies widely from his case in the petition that such communication was made in the presence of a number of members of Parliament. Sri Abdul Ghani Dar had said further that he had been approached ·over the telephone by Sri Fakhrudin Ali Ahmed in the evening of the 11th August, that Sri Fakhrultin Ali Ahmed had told him of the information conveyed to him by Sri Yunus Saleem, that in spite of his warnimg the witness had decided not to side with the respondent and the Prime Minister and claimed to have addressed a letter to the Muslim members of Par:liament in this regard. He a1so said that he had a talk with Sri I. K. Gujral early on the morning of the 16th August when the latter had to1d him that the SUPB.EME COURT REPORTS (1971] 2 S.C.R Prime Minister expected full suppon trom him and that if Sri Sanjeeva Reddy came out successful the Prime Minister might not continue in office and Dar also cla.i.ID.ed to have sent a,telegram to the Prime' Minister immediately thereafter appraising her of all this. On his attention being drawn to the difierence between the plead- ing and the oral evidence about the con•Jersation with Sri Yunus Saleem and being asked to state which of the statements was correct the surprising answer was that both were correct. Similarly, Sri Choudhary A. Mohamed P.W. 52 spoke of hav- ing received a telephone call from Sri Fakhrudin Ali Ahmed on t!1e 1Oth or 11th August to the effect that Muslims stood to gain in the event of the respondent's success while the Muslim community would be in danger if Sri Sanjeeva Reddy came out successful in the election. According to Sri Choudhary A. Mohamed this telephorte conversation was followed by personal talk in the office of Sri Fakhrudin Ali Ahmed within the precincts of the Houses of ·Parliament when Sri Fakhrudin Ali Ahmed told Sri Sher Khan who had accompanied the witness that in cases they decided to go against the respondent their ciaims for Congress . nominations in future elections would be ignored. Sri Sher Khan P.W. 51 spoke to having received a telephone call from Sri Fakh- . Iudin Ali Ahmed in a similar way and claimed to have met him at about noon the same day in the Centr'll hall of Parliament when · the Mmister had emphasised on him the need to support the res- . pondent warning the witness that in default tht>reof the latter's -name would not be included in Committees of the Houses of Parliament or i:n future delegations. This witness had further said that he had received a telephone call from Sri Yunus Saleem on the same day when a similar conversation_ had taken place. It has already been noted that according to Sri Abdul Saleem Shah P.W. 38 Sri Dinesh Singh had held out a similar threat to ·him and other Muslims du1:ing his visit to Lucknow in pre-election days, and evidence much to the same effect was given by Sri Mumtaz Mohamed Khan, P.W. 44. So far as the last two wit- nesses are concerned I must reject their testimony as I have already held that Sri Dinesh Singh did not visit Lucknow as alleged. · Both Sri Fakhrudin Ali Ahmed and Sri Ym1us Saleem denied having he!d out a threat to any Muslim elector as depo,sed to. Sri Fakh- – rudin Ali Ahmed said that he had never received any letter from Sri Abdul Ghani Dar bearing date the 13th August 1969. He further denied having spoken to Sri Sher Khan or Sri Choudhury A. Mohamed as suggested by these two witnesses. Sri Yunus Saleem admitted having had a talk with Sri Sher Khan about the Presidential election but added that when he was informed that Sri Sher Khan was committed to Sri Nijalingappa and that he was working_ for Sri Sanjeeva Reddy the question of any further talk c c S. K. SINGH v. SHlU v. V. GIRl (Milter, J.) JS7 did not arise. So fax as Sri Choudhury A. Mohamed is concerned, Sri Yunus Saleem admitted that he used to visit him at his hou:.e but no talk regarding the Presidential election had taken place betwcon them. The witness admitted having had a talk with Sri Abdul Ghani Dar in the Central hal! of Parliament a.bout the Presidential election. He ad!uitted having suggested to Sri Abdul Ghani Dar that he should consider whether it would be advisable in the interest of democracy and socialism to support Sri Sanjeeva Reddy or the respondent. · He further admitted having held discussion with many members of the Parliament both Muslim and non-Muslim on the question of the Presidential election but it would not be correct to say that he had approached only Muslim members as suggested or had appea!ed to anybody on the ground of threat to any particular community. In connection with the above a note may be made of the statement of some other Muslim witnesses. Syed Ahmed Aga R.W. 10, a member of the Lok Sabha from Kashmir said that he had seen people procuring sig- aatures in the name of party discipline in support of Sri Sanjeeva Reddy's candidature and one such person was Sri Sher Khan. a witness in ibis ca.se. . Asked whether he had been contacted by any Minister of the Central Government to vote for the respon- dent in the interest of the Musli~~ his answer was in the negative. Evidence much to the same effect wa_s given by Sri· P. M. Syed, R.W. 13, Sri Asraf Ali Khan, R.W. 27 stated thafthere wa5; no propaganda in favour of any of the candidates on communal basis so far as he was aware and he knew that se.veral Muslim gentlemen were working for Sri S~jeeva Reddy. Sri Abid Ali R.W. 33 also stated that no appeal was made to him by anybody on communal grounds and similar was the statement of Sri Mohamed Ali Khan R.W. 35. Considering the evidence as a whole I am of the view that the petitioners have failed to establish beyond reasonable doubt that any pressure was brought to bear upon the Muslim elecoors on communal grounds. Sri Abdul Ghani Dar was out to collect and create evidence very soon after the declaration of the result and his statements do not inspire any confidence. In my -view he was trying to make out a case in support of his petition from the very beginning and the tape record of his conversation with Srj Jagat Narain R.W. 25 lends strong support to this view. G There can be no denying the .(act that Sri Jagatnarain had tried to contact Srl Abdul Ghani Dar in order to dissuade him from flling the election petition. On the flrst occasion of the te1ephone· cal1 Sri Abdul Ghani Dar happened to be out and the teJephone receiver was picked UD by his wife. According to Sri Abdul Ghani Dar, Sti Jag_atnarain had conveyed an impression to his wife that there would be peril to him' in case Sri Dar insisted on fiH~ the petition. Sri Dar's wife did not come to give evidence in support of it and the tape record of the conversation between Sri Dar 2nd Sri Jagatnarain suggests that while Sri Jagatnarain was trying to 38-8 · [1971] 2 S.C.R make out· that he bad not held out ~ threat to the life or limb of Sri Dar· the latter was ttying his best to get an ·admission to that effect from Sri Jagatnarain. I may also note that officers from the birec;torate of Tele- phone from Delhi were summoned to produce record.s ' of trunk telephone calls made by Ministers in the election days obviously with the idea of showing that th~y :were approaching others for the purpose of active propaganda in support of the respo~dent,, The best evidence ·in this regard would have been the statement on oath of persons who had. been so appro~ched but no attempt worth the name was made in this regard. Charges of . propaganda on communal basis on -the strength <?f conversations either over the t~lephone or personally but covertly can be launched very easily but. m the absence of any independent corroboration tJ;tey do not inspire credibility and on the ·evidence in this case 1 am not satisfied that such ~barges have been established or . that the evidence of witnesses who have spoken about such propaganda · must ,be accepted. On the question as to whether the Prime Minister exercised any undue influence over Sri Nijalingappa, Sri S. K. Patil, Sri Kamaraj, Sri Morar.ii Desai and Sri Y. B. Chav~n by threat of serious consequences following their resolution· to nominate Sri Sa,njeeva Reddy as the Congress candidate, it is undeniable that she was not a Httle vexed with the attitude of· those persong in setting up as candidate Sri Sanjeeva Reddy when: she herself had put forward tlte name of Sri Sri J agjiwan Ram. Both . Sri Morarji Desai and Sri Nijalingappa came to the· witness box and deposed about the Prime Minister having used the words "serious conse- ouences would lollow" In one of the letters to the Prime Minis- ter Sri Nijalingappa had mentioned this to which there was no reply. As the Prime Minister did not come to the witness box to give a denial to this the statements of Sri Morarji Desai and Sri Nijalingappa must be acc~pted. But the question still remains . . whether there was a threat to anybody's electoral right at that time so as to amount to the commission of undue influence. Electoral right is defined in s. 171-A (b) as the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. · '~ne pleading does not make out a case of threat to Sti Nija1ingappa and others to refrain from votin!! at the election but it is limited to a threat to make them change their decision to nominate Sri Sanjeeva Reddy ~s the Con- gress candidate. There is no plea of threat to Sri Sanjeeva Reddy to withdraw from ~in!! a candidate. as·, the threat pleaded being one to coerce Sri Nijalin!!appa and others to change their decision to nominate does not affect their electoral right. There was no evld~nce of any subsequent threat by the Prime Minister and a~ slie herself was responsible for filing the nomination paper of Sn c S •. K. SINGH V;· SHRI V. V. GlRl (Mitter, J.) Sanjeeva Reddy there could be no que&tion of her holding out. a threat to Sri Nijalingappa and others to make them change their decision to nom1nate a candidate. There was no evidence of any undue iafluence having been .. committed as alleged in paragraph 13 (c) ( v) of the petition. NQ mel!lber of the legislative assembly of West Bengal or Andhra Pradesh came to give evidence to the effect that the res· pqndent or his supporters had raised a scare that Sri Sanjeeva Reddy, if successful in the Presidential election, would enforce President's Rule in those States. In my view the plea that a scare was created by the workers c and supporters of the respondent to the extent that Sri Kamlapati Tripathy, the Pr~sident of the U.P. Congress Committee pleaded forfreedom of vote on the 13th August 1969 completely departing from his earlier attitude that the members of the electoral college belonging to the Congress fold should back Sri. ~njeeva Reddy solidly can be dismissed summarily. Sri Kamlapati Tripathy R,W. 61 gave a cogent explanation for his change of attitude just before the poll and according to him he pleaded for freedom of vote i:n order to avoid a split in the p!Uty which was fairly evident at that time. The evidence adduced by the petitionel'l' does not establish that the change of attitude was due to ·any scare by the workers and supporters of the respondent as a11eged. Th'e rift in the party became a matter of public knowledge in the 4\rst week E of August and the process of the members of the Congres!t party arraying themselves in hostile camps went on practically till th~ : eve of the election. There was no evidence of any scare being caused by the commission of any undue influence. IJ'Iasmuch as I have come to the conclusion that the evidence . adduced does not establish the exercise of undue influence in the election in any of the forms raised in the petition, the question of the result of the election being materially affected thereby does not arise. But I may point out that in order to substantiate such a· ground for setting aside an election it is not enough for witnesses to· come and say that they were shocked or pained by readilng the pamphlet as most of them gave out. Only two witnesses came to G the witness box and said that they had changed their minds to vote for Sri Sanjeeva Reddy after perusal of the pamphlet. Mr. Daph- tary argued that there was nothing in the Act of 1952 which forbade a person from disclosing in his evidence which way he had voted and that it was open to witnesses to come and state the reaction of the pamphlet on their min<.ls and express how it had affected their conduct at the· poll. White T do not think it necessarv to express any opinion on this it can be safely held that even if the exercises of undue influence had been proved the evidence of onlv two wit· nesses to show that their electoral right had been interfered with . 3~0 "t . {1971]2 S.C.R. r t.hrn6:Y: would not have been eno.~gh for the purpose of setting astde the election. ·My conclusion therefore on the issues regarding undue in:tlu· ence may be summed up as f0llows. There was a fair runoull't of circulation of the pamphlet, in the Central hall oi Parliament among members of the electoral college by a number of them. Undeniably there was considerable publication of it by post both to electors jn DeJhi and outside. The mere dissemination of the pamphlet did not amount to exercise of any tmdue infiuence or interference with any electoral right. It had to be followed up either by a personal v~rbal app·eal or an appeal in \\-titing but there was no evidence thereof in this case. There was no appeat to Muslim members·on g~ounds of -religion to vote in favour of the re~pondent in prefer· ence to Sri Sanjeeva Reddy. There was no evidence of exercise of undue influence by Central Ministers over any members of the electoral college by any threat that in case they failed to vote for the respondent they would lose the patronage of the Prime Minis· ter. The offen~e of undue infltlence was not committed bv the respondent or any of his workers. The respondent himself was not guilty ol any such commission. There was no commission of the offence of undue itnfluence by anybody with the connivance of the respondent and the result of the election was not materiaHy affected as .a result of any commission of the offence of undue influence. As. regards issue 4(a) in Election Petitions 4 and 5 of 1969 my view is that some of the allegations made m paragraphs .8 ( 3) and ( 13) of the petition would pe sufficient pleading of commission of undue ii!lfluence under s. 18 ( 1) (a) of the Presidential and ,Vice- P~esidential Elections Act, 1952. As regards issue 4(b) the only allegation which was substantiated was a lair amount of publication and dissemination of this scurrilous pamphlet which by itself did not amount to the exercise of undue influence. Sri Abdul Ghani Dar's evidence on this point is wholly unacceptable. My answer to issue 4 (c) in an its branches is 'jn the negative. We indicated on the 11th M~y 1970 that we would not award any costs to either side. As the respondent has succeeded in the petition normally he could expect to get an award of costs in his favour. But one cannot over~ook the fact that the bulk of the oral evidence in this case centred round the question as to whether there was publication of the scurrilous pamphlet in the Central haJJ of ParHament. A very- large number of petitioners' wimesses came to give evidence in support of it while the respondent examined a host of witnesses to disprOve this fact. Although in the view I have taken it was not necessary to mtme the persons who were guilty cf such pub1ication I have already indicated that quite a number of c S. K. SINGH V. SHRI V. V. GIRl (M{tter, J.) members of Parliament was responsible for it. The hearing of this case was protracted unreasonably J>y the examination of witnesses on this one question and as the respondent has not succeeded in disproving dissemination of the pamphlet in the Central hall it would not be right to make an award of costs in his favour. The litigation was not one of an ordinary type and it was conducted with great zeal on either side. It has divulged a sad lack of res- ponsibility and uprightness in the elected representatives of the people figuring either as witnesses for the petitioners or as witnesses for the respondent. In a case like this where both sides are respon. sible for putting into the witness box a large number of persons who deliberately gave evidence which was not true, the proper course c is . not to award costs even to the successful party .. G.C. Petitions dismissed.