PETITIONER: INDER LAL Vs. RESPONDENT: LAL SINGH DATE OF JUDGMENT: 08/02/1962 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. CITATION: 1962 AIR 1156 1962 SCR Supl. (3) 114 CITATOR INFO : RF 1965 SC 677 (7) RF 1966 SC 773 (20) RF 1967 SC 808 (15) RF 1970 SC1231 (14) E 1970 SC2097 (262,313) RF 1971 SC1262 (17) ACT: Election-Corrupt Practice-False Statement in relation to personal character or conduct of candidate Statement alleging purchasing of votes-If relates to personal character-Representation of the People Act, 1951 (43 of 1951), s. 123 (4). HEADNOTE: Respondent 1 was declared elected to the Legislative Assembly. His election was challenged, inter alia, on the ground that he had committed the corrupt practice under S. 123 (4) of the Representation of People Act, 1951 of making false statements in relation to the personal character or conduct of Respondent 2, a defeated candidate The statements were contained in a pamphlet issued by the agent of Respondent 1 with his consent. Among other statements the pamphlet contained a false statement that the Respondent 2 wits "purchaser of the opponents of the Congress by means (if money". Respondent 1 contended that the statement related to the public or political character of Respondent 2 and not to his private character and did not fall within take mischief of s. 123 (4). Held, that the statement related to the personal character of Respondent 2 and Respondent 1 was guilty of the corrupt practice under s. 123 (4) of the Act. The offending statement amounted to an allegation that Respondent 2 bought the votes of the opponents of the Congress by offering bribes. Bribery was itself a corrupt practice and an allegation of bribery involved moral turpitude and clearly and unequivocally affected the private character of Respondent 2. 115 JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 280 of 1961.
Appeal by special leave from the judgment and order dated
August 2, 1960, of the Rajasthan High Court in D. E. Civil
Misc. (Election) Appeal, No. 1 of 1960.
G.S. Pathak, A. V. Viswanatha Sastri, S. N. Andley and P.
L. Vohra, for the appellant.
G. C. Mathur, for the respondent No. 2.
1962. February 8. The Judgment of the Court was delivered
by
GAJENDRAGADKAR., J.-This appeal by special leave arises out
of an election petition filed by the appellant challenging
the validity of the election of respondent No. 1, Lal Singh
on several grounds. The appellant is an elector in the
Chittorgarh Constituency and the election which led to the
present petition was held in March. 1957, for the Rajasthan
Legislative Assembly from the said constituency. As a
result of the election, respondent No. 1 was declared to
have been duly elected on the 11th March, 1957. He secured
7272 votes whereas respondent No. 2 Laxman Singh s/o
Maharawal Sir Bijey Singh secured 7261 votes and respondent No. 3 Chhoga
lal secured 569 votes. The appellant’s case
was that respondent No. 1’s election wag invalid inasmuch as
he had practiced corrupt practices at the said election.
According to the appellant, respondent No. 1 procured or
abetted or attempted to procure either by himself or by his
agents or by other persons with his connivance or that of
his agents the reception of invalid votes and as a result of
the said votes, the result of the Election had been
materially affected The appellant stated in detail the
manner in which the said invalid votes bad been procured.
The appellant further pleaded that respondent No. 1, his
agents and other persons with the connivance of respondent
No. 1 or that of his agents published such
116
statements of facts (Exts. 3 & 6) which were false and which
they either believed to be false or did not believe to “be
true, in relation to the personal character or conduct of
respondent No.2 which were likely to prejudice the prospect
of respondent No. 2 at the election. It is on these two
grounds that the appellant claimed a declaration that the
election of respondent No. 1 was invalid. He also claimed
that respondent No. 2 should be declared to have been
validly elected.
Respondent No. 2 filed his written statement supporting the
petition but he did not appear before the Tribunal at the
hearing. Respondent No. 3 did not appear at all, while
respondent No. 1 denied all the allegations made by the
appellant and contended that the election petition filed by
the appellant should be dismissed.
On the pleadings of the parties, the Election Tribunal
framed as many as 26 issues. In substance it held that the
several allegations made by the appellant in respect of the
receipt of invalid votes bad not been proved and so the
first ground on which respondent No. 1’s election was
challenged by appellant, could not succeed. In regard to
the second ground on which respondent No. 1’s election was
challenged by the appellant, the Tribunal held that Ext. 3
had been published by the agent of respondent No. 1 but not
with his express consent and in regard to Ext. 6, the
Tribunal was not satisfied that, it had been published by
respondent No. 1’s agent. That is how even the second
ground made by the appellant disputing the validity of
respondent No. 1’s election did not succeed. In the result,
the election petition was dismissed.
Against the said decision, the appellant preferred an appeal
in the Rajasthan High Court. The High Court confirmed the
finding of the Tribunal on the first point in regard to the
receipt of invalid votes. It is true that the High Court
was not
117
satisfied with the approach adopted by the Tribunal in
dealing with this part of the case and it thought that some
of the reasons given by the Tribunal in support of its
conclusions were not satisfactory. Even, so, the High Court
felt that the final conclusion of the Tribunal was, on the
whole, correct and need not be reversed. Thus both the
Tribunal and the High Court have recorded findings against
the appellant on the first part of his case.
In regard to the second contention raised by the appellant,
the High Court has accepted the finding of the Tribunal
about the publication of Ext. 3. In regard to the other
document Ext. 6, the High Court has reversed the conclusion
of the Tribunal and hold that the said document had been
published for the benefit of respondent No. 1 and differing
from the view taken by the Tribunal, the High Court has hold
that the Publication of both the pamphlets was with consent
of respondent No. 1 and so was outside the purview of s.
100(2) of the Representation of the People Act 1951 (43 of
1951) (hereinafter called the Act). Having thus found that
the two pamphlets had been published by the agent of
respondent No.1 and with his consent, the High Court
preceded to examine the question as to whether the material
allegations made against respondent No. 2 by the said
pamphlets were true or false. The High Court bold that the
said material allegations were false and it came to the-
conclusion that they were calculated to effect prejudicially
the prospects of the election of respondent No.2. The High
Court was however, not satisfied that the said allegations
had relation to the personal character or conduct of
respondent No. 2 and so it held that the corrupt practice
alleged by the appellant against respondent No. 2 on the
strength of the said two pamphlets under s. 123(4) of the
act had not been proved., The result was that though the
High Court differed from the Election Tribunal in regard to
some of the findings recorded
118
by the Tribunal on the second ground, its ultimate
conclusion was the same as that of the Tribunal. The appeal
preferred by the appellant was accordingly dismissed. It is
against this order that the appellant has come to this Court
by Special leave.
In this appeal, the only question which we are called upon
to consider is whether the two pamphlets justify the
contention of the appellant that respondent No. 1 has
committed a corrupt practice under s. 153(4). The question
as to whether respondent No. 1’s election has been
materially assisted by the receipt of invalid votes, is
concluded by concurrent finding of’ fact recorded against
the appellant and so we have not allowed Mr. Sastri to
dispute the correctness of that finding.
Before dealing with the short point raised for our decision
under s. 123(4) of the Act, it is necessary to set out the
material portion of the pamphlets on which the appellant’s
case of corrupt practice is based. The relevant portion in
the pamphlet Ext. 3 to which objection is taken by the
appellant reads thus .-
(1) Enemy of Democracy?
(2) Agent of the foreigners strangling the
freedom of Bharat?
(3) Supporter and collaborator of the
conspiracy of Pakistani attack on Bharat?
(4) Bringer of tyrannical rule of Rajas in
Rajasthan?
(5) Destroyer of Hindu Muslim unity by
raising the slogan of Ram Rajya?
(6) Purchaser of the opponents of the
Congress by means of Money?
119
“Maharawal of Dangarpur, Shri Laxman Singh,
who was defeated in the last election by
thousands of votes, has come to mislead the
people of Chittor, has come to push back the
backward district of Chittor by 100 years, has
come to destroy the peace and tranquility of
Chittor under cover of communal organisation,
has come to provide means to the public to
spend their hard earned money on drinking
orgies, has come to intensify again the
tyranny of Raja Maharajas in Rajasthan, has
come to make a gift of Kashmir to the
aggressor Pakistan, has come to enslave India
again by collaborating with Pakistan and
Pakistan’s friends. He is a friend of Raja
Maharajas and an enemy of cultivators and
laborers. He wants to grant land to
Bhooswamis and thereby oust the cultivators
and wants to establish once more his pagent by
exploitation of the hard labour of
cultivators.”
The other pamphlet contains substantially the same portion
and so it need not be reproduced.
It is urged for the appellant that in describing respondent
No. 2 as the agent of foreigners strangling the freedom of
Bharat. the personal character of respondent No. 2 has been
falsely and adversely criticised. The same comment is made
in respect of the description of respondent No. 2 as the
supporter and collaborator of the conspiracy of Pakistani
attack on Bharat and in support of this argument, reliance
has been placed on the further statement in the pamphlet
that respondent No. 2 had come to make a gift of Kashmir to
the aggressor Pakistan and had come to enslave India by
collaborating with Pakistan and Pakistan’s friends. It is
also argued that describing respondent No. 2 as the
purchaser of the opponents of the Congress by means of
money, attracts the provisions of 123 (4). It is mainly on
these three allegations in the
120
pamphlet that the case of the appellant rests and the
argument is that by making these allegations, the private
character of respondent No. 2 has been falsely vilified and
that the said vilification was reasonably calculated to
prejudice the prospects of his election.
On the other hand, for respondent No. 1 Mr. Mathur who
appeared amicus curaie at our request has contended that the
three allegations, though false, cannot be said to touch or
effect the private character of respondent No. 2. He has
argued that in dealing with s. 123 (4), it is necessary to
make a distinction between the personal or private character
or conduct of a candidate and his public or political
character. Mr. Mathur’s contention is that though the
criticism made against respondent No. 2 by the impugned
pamphlet may be extravagant, unreasonable. and false, it is
nevertheless criticism made against him in his public and
political character and as such, a. 123 (4) cannot be
invoked.
It is, therefore, necessary to determine the true scope and
effect of the relevant provision in a. 123 (4). Section 123
deals with corrupt practices and amongst them, is the
corrupt practice specified by subjection (4). That sub-
section reads thus :-
“The publication by a candidate or his agent
or by any other person, of any statement of
fact which is false, and which he either
believes to be false or does not believe to be
true, in relation to the personal character or
conduct of any candidate, or in relation to
the candidature, or withdrawal, or retirement
from contest, of any candidate, being a
statement reasonably calculated to prejudice
the prospects of that candidates election.”
It would thus be seen that the publication in question must
be by a candidate or his agent or by any other person ; the
said publication should be
121
in regard to a statement of fact which is false and which he
either believes to be false or does not believe to be true ;
that it must have relation to the personal character or
conduct of the candidate, or should have relation to the
candidature with drawl or retirement from contest of any
candidate and that it should be a statement reasonably
calculated to prejudice the prospects of that candidate’s
election. All the requirements of this subsection, except
one, are held to have been satisfied by the High Court. The
only requirement of the sub-section which has not been
satisfied according to the High Court is that the statement
has no relation to the personal character or conduct of
respondent No. 2. Mr. Sastri contends that this finding of
the High Court is erroneous in law.
It would be noticed that in prescribing the requirement that
the false statement should have relation to the personal
character of the candidate, a distinction is intended to be
drawn between the personal character of the candidate and
his public or political character. The provision postulates
that if a false statement is made in regard to the public or
political character of the candidate, it would not
constitute a corrupt practice even if it is likely to
Prejudice the prospects of that candidate’s ‘election. This
assumption is presumably based on the theory that the
electorate being politically educated and mature, would not
be deceived by a false criticism against the public or
political character of any candidate. The public and
political character of a candidate in open to public view
and public criticism and even if any false statements are
made about the political views of a candidate or his public
conduct or character, the electorate would be able to judge
on the merits and may not be misled the allegations by any
false allegations in that behalf. It is on this theory that
false statements of fact effecting the public or political
character of a candidate are not brought
122
within the mischief of ss. 123(4). In order that the
elections should be free, it is necessary that the
electorate should be educated on political issues in a
fearless manner and so, the Legislature thought that full
and ample scope should be left for free and fearless
criticism by candidates against the public and political
character of their opponents.
But the position with regard to the private or personal
character of the candidate is very different. Circulation
of false statements about the private or personal character
of the candidate during the period preceding elections is
likely to work against the freedom of election itself
inasmuch as the effect created by false statements 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 effect the voting of the
electors. That is why it is for the protection of the
constituency against acts which would be fatal to the
freedom of election that the statute provides for the
inclusion of the circulation of false statements concerning
the private character of a candidate amongst corrupt
practices. Dissemination of false statements about the
personal character of a candidate thus constitutes a corrupt
practice.
Though it is clear that the statute wants to make a broad
distinction between public and political character on the
one hand and private character on the other, it is obvious
that a sharp and clear-cut dividing line cannot be drawn to
distinguish the one from the other, In discussing the
distinction between the private character and the public
character, sometimes reference is made to the “‘man beneath
the politician” and it is said that if a statement of fact
affects the man beneath the politician it touches private
character and if it affects the politician. It does not
touch his private character. There may be some false
statements of fact which clearly affect the private
character of
123
the candidate ; if, for instance, it is said that the
candidate is a cheat or murderer there can be no doubt that
the statement is in regard to his private character and
conduct and so if the statement is shown to be false, it
would undoubtedly be a corrupt practice Similarly, if the
economic policy of the party to which the candidate belongs
or its political ideology is falsely criticised and in
strong words it is suggested that the said policy and
ideology would cause the ruin of the country, that clearly
would be criticism, though false, against the public
character of the candidate and his political party and as
such, it would be outside the purview of the statute. But
there may be oases on the border-line where the false
statement may affect both the politician and the man beneath
the politician and it is precisely in dealing with cases on
the border-line that difficulties are experienced in deter-
mining whether the impugned false statement constitutes a
corrupt practice or not. If, for instance, it is said that
in his public life, the candidate has utilised his position
for the selfish purpose of securing jobs for his relations,
it may be argued that it is criticism against the candidate
in his public character and it may also be suggested that it
nevertheless affects his private character. Therefore, it
is clear that in dealing with corrupt practices alleged
under is. 123(4) where we are concerned with border-line
cases, we will have to draw a working line to distinguish
private character from public character and it may also have
to be borne in mind that in some cases, the false statement
may affect both the private and the public character as
well.
In the present case, we are satisfied that the allegation
made in the pamphlet that respondent No. 2 is a purchaser of
the opponents of the Congress by means of money clearly
attracts the
124
provisions of ss. 123(4). In plain terms, the statement
amounts to an allegation that respondent No. 2 buys by
offering bribes the votes of the opponents of’ the Congress.
Bribery is itself a a corrupt practice and if it is said
against a candidate that the practices the corrupt practice
of buying the votes of the opponents of the Congress by
means of bribery, that clearly and unequivocally affects his
private character. Offering a bribe in an election
introduces an element of moral turpitude and it cannot be
denied that a person who offers bribe loses reputation as an
individual in the eyes of the public. The statement alleges
that the bribes are offered by respondent No. 2 for the pur-
pose of election and in that sense it may be that it is his
public character which is falsely criticised. But,in our
opinion, it would be idle to contend that it is a false
statement only against the public character of respondent
No. 2. Having regard to the moral turpitude involved in the
offering of the bribe, the statement in question
undoubtedly affects his private character as well.
Unfortunately, in dealing with this point, the High Court
does not appear to have considered this statement at all.
It has dealt with this problem in very general terms. It
has observed that the impugned statements all refer to the
Maharawal as one of those various persons of his class who
as a body appear to be responsible in the opinion of the
writer for the political mischiefs referred to in the
statements, land that a general reading of the document
shows that the attack upon him is a part of a bigger
Organisation of individuals who do not appear to be as the
writer thinks, well inclined towards the progress of the
country. It is perfectly true that in dealing with the
contention that the false statement contained in the
pamphlet amounts to a corrupt practice under as. 123(4), it
is necessary to read the document as a whole before
determining the effect of any particular objectionable
statement.
125
But reading the document as a whole, we see no justification
whatever for the view expressed by the High Court that the
criticism made in the document is, directed against a body
of persons and not against respondent No. 2 himself. The
failure of the High Court to deal with the several specific
statements on which the argument of the appellant is based,
has introduced a serious infirmity in its final conclusion.
If only the High Court had considered whether the allegation
that respondent No. 2 was the purchaser of opponents of the
Congress by means of money, we are inclined to think that
the High Court would not have brushed aside. the appellant’s
case with the general observations which it has made in its
judgment. We are, therefore, satisfied that the appellant
is right in contending that the false statement of fact to
which we have just referred constitutes a corrupt practice
under as. 123(4) of the Act. In that view of the matter, it
is unnecessary to consider whether the other impugned
statements of fact also ,attract the provisions of as.
123(4).
In the result we must reverse the finding of the High Court
that publication of the impugned pamphlets does not
constitute a corrupt practice under as. 123(4). The result
of this conclusion inevitably is that the election of
respondent No. 1 must be declared to be invalid because
there is no doubt that the corrupt practice proved in this
case falls under section 191(b) and is outside the purview
of section 100(2).
That takes to us the question as to whether respondent No. 2
can be declared to have been validly elected at the election
in question. This question will have to be decided in the
light of provisions of section 101(b) of the Act. The said
section provides, inter alia, that “‘if any person who has
lodged a petition has, in addition to calling in question
the election. of the returned candidate,
126
claimed a declaration that any other candidate has been duly
elected and the Tribunal is of opinion that but for the
votes obtained by such returned candidate by corrupt
practices such other candidate would have obtained a
majority of the valid votes, the Tribunal shall after
declaring the election of the returned candidate to be void
declare such other candidate to have been duly elected.”
This question has not been considered by the High Court and
it cannot be decided unless the relevant facts are examined
on the merits and that normally would mean our remanding the
case to the High Court for the decision of the point in
accordance with law. We do not, however, propose to adopt
such a course in view of the fact that it would be futile to
give any further ‘lease of life to this petition. The
election which is challenged took place in 1957 and in fact
we are now on the verge of fresh elections which would take
place this month That is why we think it would serve no
purpose in sending the matter back for the decision of the
question as to whether on the evidence adduced in the case,
respondent No. 2 can be declared to have been validly
elected.
The result is, the appeal is allowed and the election of
respondent No. 1 is get aside. Since respondent No. 1 did
not appear, there would be no order as to costs.
Appeal allowed.
127