PETITIONER: RAHIM KHAN Vs. RESPONDENT: KHURSHID AHMED & ORS. DATE OF JUDGMENT08/08/1974 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PALEKAR, D.G. BHAGWATI, P.N. CITATION: 1975 AIR 290 1975 SCR (1) 643 1974 SCC (2) 660 CITATOR INFO : R 1975 SC 308 (60) F 1975 SC1045 (4,12,16) RF 1975 SC1612 (15) RF 1975 SC2299 (480) RF 1976 SC1187 (31) RF 1976 SC1599 (6,44) R 1976 SC1866 (4) RF 1976 SC1886 (23) RF 1977 SC 587 (2) R 1977 SC 813 (13) R 1978 SC 351 (5,7,15) R 1978 SC1162 (8) R 1984 SC1516 (3) R 1985 SC 236 (62) C 1991 SC2001 (5,24) ACT: The Representation of the People Act (43 of 1951) ss. 83, 84, 99(a) (ii), 116A and 123(1) to (4)--Scope of Court's power to set aside election--Appellate Court's power to upset findings of trial Court--Bribery, ingredients--Divine displeasure and undue influence--Court's attitude to--Names of witnesses if should be mentioned in sources of information or as part of particulars. Appeal to religion what is--Duty of trial Court to name those found to have indulged in corrupt practices--Reform of election law to check contemporaneous corrupt practices suggested. HEADNOTE: In the General Election to a State Assembly held from a constituency where the voting strength of Muslims was preponderant, the appellant was declared elected. The first respondent, who was a sitting minister before his defeat, challenged the election on various grounds of corrupt practices. The High Court set aside the appellant's election holding that he committed corrupt practices under s. 123(1) to (4) of the Representation of the People Act, 1951. The High Court found (i) that the appellant placed at the disposal of another contesting candidate a car 'with a promise that the expenses incur-red in hiring and running it in connection with his election campaign would be met by the appellant, so that, he may continue to contest the election and wean away the Harijan votes from the first respondent; and (ii) that the appellant, and his supporters with his consent, delivered speeches appealing to the Muslim voters to vote for the appellant because he was a true Muslim while the first respondent *as a Kafir ; that they distributed handbills containing the allegations that (a) the first respondent, though a Muslim got the grave of another Muslim dug up on account of personal enmity; (b) as health minister he violated the modesty of lady doctors and nurses; (q) he got certain Muslims arrested on allegations of cow slaughter and forced them to eat pork; and (d) if the voters voted for the first respondent they would become subject to divine displeasure. HELD :-(1) An appeal is a re-hearing but the trial Court's finding will be upset only when it is found that it is wrong. [647 D] Laxminarayan v. Returning Officer, A.I.R. 1974 S.C. 66, 78, Karemore's Case, A.I.R. 1974 S.C. 405, 413, 420 followed. (2) After an election had been held defeated candidates or disgruntled electors should not be allowed to treat it in a light-hearted manner by filing election petitions on unsubstantial grounds and irresponsible evidence. Courts must respect the verdict rendered by the electorate and show extreme reluctance to set it aside or declare it void unless clear and cogent testimony, compelling the court to uphold the corrupt practice alleged against the returned candidate, is adduced. Further, where corrupt practices are imputed the proceedings are of a quasi-criminal nature where strict proof is necessary and the burden is heavy on him who assails the election. in agents cases where the witnesses are partisans, being the polling agents or counting or workers of the candidates ; or of the turn coat type, who claimed to be the polling agents, counting agents or workers of the returned candidate till the election over, but, in the post-election period, when the defeated candidate's party had formed a government, shifted their loyalty and gave evidence in proof of the averments in the petition ; or officials working under sitting Ministries who are candidates for election, the Court must scan the evidence of the corrupt practices alleged with scrupulous care and severity. [650 E-H, 655 F-H] (3) The corrupt practice of bribery under s.. 123(1) by placing a car at the disposal of another candidate, is not proved. Assuming that such candidate got the use of a car at the expense of the appellant such financial aid would not amount to corrupt practice unless it was to induce that candidate not to withdraw from the election. 644 In the present case, there is no proof on this aspect and there is no finding to that effect by the High Court. [652 H, 654 B-C] (4) Divine displeasure on account of prandial impropriety and undue influence for fear of forced pork eating, cannot be inferred from the allegations in the handbill. No one in India to-day will shiver with fear that a candidate, when he wins an election, will force down his throat distasteful pork. Such chimerical apprehensions are unreal and cannot receive judicial approval. Therefore, the corrupt practice alleged under s. 123(2) is not proved. [669 F-H] (5) But the hand bills exhort Muslims to support the appellant in the name of religion and contain allegations amounting to character assassination and so, the appellant is guilty of the corrupt practices under s. 123 (3) and (4). [670 A-B] (a) There is no credible proof that speeches had been made by the appellant or his supporters at meetings. [655-C-F] (b) But on the distribution of the damaging handbills there is acceptable, direct and circumstantial testimony. The appellant had a motive for publishing the handbills and there is evidence to show that the handbills existed at the relevant time. The circumstances of the case and the evidence of disinterested witnesses show that hand bills were distributed with the knowledge and consent of the appellant. [668F-H] (c) Neither s. 87 nor s.83 nor r. 94(a) and Form 25 require that the names of the witnesses should be mentioned as sources of information or as part of particulars. Rule 12 framed by the High Court for the trial of election petitions requires the source of information to be mentioned at the earlier stage in order to prevent afterthoughts. But, every witness need not be mentioned as a source and every source informant need not be examined necessarily. Whether the omission to do so in a given case reflects on the credibility of the evidence depends on the facts and circumstances of the case. While the court must be careful to insist that the means of knowledge are mentioned right in the beginning to avoid convenient embellishments and irresponsible charges, it should not stifle good and reliable testimony or thwart proof of corrupt practices by technicalities of procedure, especially when no prejudice, on account of deficiency in particulars, is made out. [664 C-E, F-G] (d) What is appeal to religion depends on time and circumstances, the ethos of a community, the bearing of the deviation on the cardinal tenets of the eligion and other variables. Law being a secular social process, the Court must avoid over solicitude for ultra-orthodoxies. [660 A-B. D-E] (e) Since the first respondent has called the various allegations relating to womanizing as false and the appellant has agreed that he does not believe them to be true, the corrupt practice under s. 123(4) must be held to have been made out. Ambika Saran Singh v. Mahant Mahader Nand Giri 41 E.L.R. 183. Kultar Singh v.Mukhtiar Singh, [1964] 7 S.C.R. 790, Balwan Singh v. Lakshmi Narain, 22. E.L.R. 273. B. Rejagopala Rao v. N. G. Ranga, A.I.R. 1971 S.C. 267, 275 referred to. (6) If a blatant corrupt practice is committed during an election there is now no clear statutory mechanism which can contemporaneously be set in motion by the affected party, so that, when it is raw, a record and an instant summary probe is possible through an independent semi-.judicial instrumentality. Violations thrive where prompt check is unavailable. Effective contemporaneous machinery providing for such chocks would greatly curtail subsequent election disputes and even act as a deterrent to the commission of corrupt practices. Elections are the cornerstone of the parliamentary system and electoral purity can be maintained only when the virus of corrupt practices is controlled by comprehensive systematic changes in law with emphasis on a fearless enforcement instrumentality and a national politi- cal consensus to abide by norms. [670 D-F, 672 A-B] In the present case, the handbill does not contain the name of the printer and publisher although the election law so required. There is no agency to take prompt action after due investigation, and a propagandist is able successfully to spread 645 scandal without a trace of the source, knowing that nothing will happen until long after the election the question is raised in an election petition. [665 F-G] (7) The High Court having found the commission of corrupt practices by the appellant and one of his supporters, who is a sitting member of Parliament, and a large number of other persons, was under the statutory duty to name all those who have been proved at the trial to have been guilty of corrupt practices, under s. 99(a) (ii) after following the prescribed procedure. If only courts would name all those involved in the pollution of the electoral process, there would be some hesitation on their part to indulge in such improper practices. No such action is however necessary by this Court in the present case, because this Court found only the appellant guilty of corrupt practice. [670 F-671 H] D. P. Mishra v. K. N. Sharma [1971] S.C.R. 8 ; R. M. Seshadri v. G. Vasantha Pai. [1969],2 S.C.R. 1019, and Janak Sritar v. Mahant R. K. Dos, A.I.R. 1972 S.C. 359, referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 816 of 1973.
(Appeal under Section 116-A of the Representation of People
Act, 1951 from the Judgment and Order dated the 12th March,
1973 of the Punjab and Haryana High Court at Chandigarh in
Election Petition No. 7 of 1972.)
N. S. Bindra, R. H. Dhebar, B. S. Malik, P. R. Ramasesh and
R. C. Bhatia, for the Appellant.
K. C. Sharma, K. C. Agarwal, M.M.L. Srivastava, E. C.
Agarwala and Prem Malhotra, for Respondent No. 1.
K. L. Hathi, and P.C. Kapur, for Respondent No. 2.
A.T.M. Sangpath for Respondent No. 3.
S. K. Bagga and S. Bagga, for Respondent No. 4.
The Judgment of the Court was delivered by-
KRISHNA IYER, J.-By a plurality of less than 2,000 votes the
appellant was declared elected from the Nuh constituency to
the Haryana Assembly in the general election held on March
11, 1972. lie was an Independent candidate while his main
rival, the first respondent, represented the Indian National
Congress. There were three others in the field two of whom
were independents and the third a Jan Sangh nominee-all of
them polled poorly. In the electoral history of the
constituency fickle fortune has been smiling now on the
appellant, now on the first respondent. It also happens
that while the appellant had been a Deputy Minister when he
was elected to the Haryana Legislative Assembly last from
the same constituency in 1967, at the following general
election in May 1968 to the same Assembly (before its term
the Assembly was dissolved and the non-Congress Government
went out of office) the first respondent was elected and he
became a Member of the Cabinet formed by the Congress party.
The next election fell in 1972 where both figured as
combatants from Nuh and we are concerned with the validity
of the result declared in favour of the appel-
-185 SCI/75
646
lant by the returning officer in the present appeal, the
High Court having set aside the election.
It is apparent that the competitive politics of the Nuh
constituency has expressed itself through the appellant and
the first respondent for quite a long time now and as the
voting figures of the latest poll shows, the context has
been contentious and close. In such battles of the ballot
where personal feuds foul the air, the decencies and norms
set by the law may often be the first casualty. Anyway, the
disappointed first respondent hastened to challenge the
appellant’s election on various grounds of “currupt
practices”. The High Court has upheld a few of them and
voided the appellant’s election, a miss being as good as a
mile. The campaign pollutants must be kept down at the
polls if electoral disenchantment is not to grip the general
community. The Court, in this regard, is the sentinel on
the qui vive.
Shri Bindra, learned counsel for the appellant, has argued
the case in minute detail, countered by Shri Sharma for the
first respondent ; but since at the appellate level jejune
infirmities and probative trivialities may not tilt the
scales even on the principle of juncta juvant, we will focus
largely on the major circumstances.- The-correct appellate
perspective in an election case has been indicated by this
Court and we are bound to set our sights on those lines. In
Laxminarayan V. Returning Officer(1) the implied limitations
on the appellate power under S.116A were stated thus :
“It can re-appraise the evidence and reverse
the trial court’s findings of fact. But like
any other power it is not unconfined; it is
subject to certain inherent limitations in
relation to a conclusion of fact. While the
trial court has not only read the evidence of
witnesses on record but has also read their
evidence in their faces, looks and demeanour,
the appellate Court is confined to their
evidence on record
* * * * * * *
In an appeal the burden is on the appellant to
prove how the judgment under appeal is wrong.
To establish this he must do something more
than merely ask for a reassessment of the
evidence. He must show wherein the assessment
has gone wrong”.
In Karemore’s Case(2) this position was re-
stated thus:
“Before a finding of fact by a Trial Court can
be set aside it must be established that the
Trial Judge’s findings were clearly unsound,
perverse or have been based on grounds which
are unsatisfactory by reason of material
inconsistencies or inaccuracies. This is not
to say that a Trial Judge can be treated as
infallible in determining which side is
indulging in falsehoods or exaggerations ….
* * * * * * *
While, as we have said earlier, it is open to
this Court to reappraise the evidence and
consider the propriety, correctness
(1) A.I.R. 1974 S.C. 66, 78.
(2) A.I.R. 1974 S.C. 405, 413, 420.
647
or legality of the findings recorded by the
Trial Court ordinarily it will be slow to
disturb the findings of fact recorded by the
High Court unless there are cogent reasons to
do so.”
An appeal is a re-hearing but the trial Court’s finding will
be upturned not when it is short of right but only when it
is wrong. We wilt view the case from this angle.
In a loose sense, Nuh is a Muslim constituency by which we
mean that the voting strength of the Muslims is
preponderant. Both the candidates are Muslims and, indeed,
to some extent the Islamic “dosage” of each candidate has
itself been highlighted in the Election Petition as a bone
of contention in the poll confrontation, as will be
presently discussed. Had parties professing secular
politics and revolutionary ideologies never “stooped to
conquer” by sub rosa appeal to the religion and caste of
blocks of voters by exciting their sympathy for the
candidate via this sense of “tribal” identity, our elections
would long ago have lived down this injurious political
irrelevance. On the contrary, the unerring instinct with
which political parties frequently choose candidates whose
religion or caste tallies with that of the bulk of the
constituents appetises, if not excites, covertly, if not
overtly, the caste consciousness and religious separatism
otherwise asleep in the bosoms of the common people. In the
name of pragmatism many parties offer allegiance to the
super-party—Caste and the law (Sees. 123 & 125) fails
operationally because the societal mores are not being
seriously secularised by big Parties. What is surprising is
that the die-hard sense of caste has affected not merely the
Hindu heirarhcy but also the Muslim Brotherhood and the
evidence in the present case reveal that Gote (gothra or
clan ) is a binding force socially and electorally among
Muslims here. Exploitation of this susceptibility is
suggested against the appellant.
The first respondent, in his petition, has imputed many
types of corrupt practices to the returned candidate.
Paragraph 8 of the petition sets out the facts about
bribery. The next paragraph furnishes the particulars of
appeal by the returned candidate and/or his election agent
and by others with their consent, to vote for the appellant
on grounds of religion and caste and to refrain from voting
for the first respondent on the score that he violated
Islamic tenets and was in fact a kafir. The gravamen of the
vices flung at the appellant is that he and others with his
consent did broadcast to their constituents orally and in
writing personal aspersions about the first respondent, cal-
culated to darken his poll prospects. Undue influence by
invocation of divine displeasure by dietary deviation is
also alleged, based on the potential threat, if respondent
were returned of the pious Muslims being forced to eat pork-
a prandial anathema for true Muslims.
Not all of these grounds have been held proved and the
appellate I subject-matter is confined to that part of the
canvas where findings of corrupt practice have been
recorded. We will switch the forensic spotlight only on
them. The High Court has wound up thus:
648
“My conclusions from the evidence discussed
under this issue may be summed up as follows:
(a) Handbill Exhibit P. W.4/3 was in existence
before the 12th
of March, 1972.
(b) The returned candidate supplied copies of
the handbill to his agents and workers for
distribution amongst Muslim voters.
(c) The returned candidate and his supporters
with his consent, made an appeal to Muslim
voters to vote for the returned candidate
because he was a true Muslim whereas the peti-
tioner was a kafir. This appeal was made on
the 9th and 10 th of March, 1972, through
speeches delivered by the returned candidate
and his supporters and by distribution of
handbill Exhibit P. W. 4/3, in the following
villages of the Nuh Assembly constituency:
Notki Gohana, Khedli Nuh, Mewli, Malab,
Nagina, Karherrha, Pinangwan, Bhadas and
Gliagas.
It is conceded before me that the appeal just
above found by
me to have been made by the returned candidate
was an appeal to vote for the returned
candidate and to refrain from voting for the
petitioner on the ground of their religion,
for the furtherance of the prospects of the
election of the returned candidate and for
prejudicially affecting the election of the
petitioner so that it falls within the ambit
of the corrupt practice detailed in section
123 (3) of the Act, which corrupt practice the
returned candidate must be held to have
committed. The issue is accordingly found in
favour of the petitioner.”
* * * * *
“From the evidence accepted by me as
trustworthy under that issue it is further
made out that practically all those statements
with slight variations were made the-subject-
matter of speeches by the returned candidate
and, with his consent, by Shri Tayyab Hussain,
which speeches were delivered to gatherings in
the said ten villages. The publication of
those statements by the returned candidate and
by Shri Tayyab Hussain, with his consent thus
stands fully proved. The petitioner has sworn
as P. W. 76 that all the statements contained
in the handbill are false. Thus assertion
stands wholly unrebutted. Appearing as R.I.W.
37 the returned candidate averred that
according to his belief the statements made in
the handbill were incorrect. This being so,
all the ingredients of the corrupt practice
under examination must be held to have been
fully brought home to the returned candidate”.
* * * * * * *
I have already held under issue No. 4 that as
claimed by petitioner handbill Exhibit P. W.
4/3 was distributed amongst voters by the
returned candidate and his supporters with his
consent. So the only question which remains
to be answered is
649
whether the publication of the statements
above extracted amounted to any direct or
indirect interference or attempt to interfere
with the free exercise of any electoral right.
in opinion, this question must be answered in
the affirmative. According to the Muslim
faith, eating of pork is considered sinful.
The impugned statements declared in no
uncertain terms that if the petitioner was
elected, he would force all Muslims to eat
pork. The effect of those statements on the
mind of an average Muslim voter would be so
powerful as to leave no free will to him in
the exercise of his choice of the candidate
for whom he was to vote. The inducement would
result in a mental compulsion for the voter to
vote for the petitioner and would, therefore,
fall within the ambit of any attempt to
interfere with the free exercise of an
electoral right.”
* * * * * *
“…..the publication that the returned
candidate and others
in handbill Exhibit P. W. 4/3 amounted to the
commission of the corrupt practice of undue
influence as defined in section 123(2) of the
Act.”
* * * * * *
“Having found that the returned candidate and
others with his consent committed the corrupt
practice- defined in clauses (1), (2), (3) and
(4) of section 123 of the Act, I accept the
petition and declare the election of the
returned candidate to the Haryana Legislative
Assembly from the. Nub Assembly constituency
to be void.”
The cornerstone of the election petition is the destribution
of libellous handbills and making of slanderous speeches by
the candidate and his companions which overflowed mere
personal invective into many areas of corrupt practice. The
Court was also satisfied with part of the charge of bribery
which it expressed thus :
“As a result of the above discussion I find it
proved that on the 14th of February 1972, the
returned candidate placed at the disposal of
respondent No. 3 Car No. DLF 675 with a
promise that these expense incurred in hiring
the car and running it in connection with the
election campaign of respondent No. 3 would be
met by the returned candidate.”
Thus it is seen that while the embittered petitioner has
black-brushed his rival with many brands of corrupt
practices, he has failed to convince the Court on several of
them. His counsel gave up many of the charges after
evidence had been led. Even the residue has not fully found
favour with the High Court and the only substantial grounds
which have survived the screening process are two, viz : (a)
the ‘automobile’ bribe; and (b) the dissemination of
prejudicial and prohibited appeals. The limited controversy
before us centres round the certitude of this fatal modicum.
The election law invalidates a poll verdict if a single
illegal adulterant has been admixed in the campaign. The
law is jealously qualitative, not clumsily quantitative, in
its nullification test and two vices or twenty are the same
in the ultimate result.
650
A few prefatory observations are necessary before we discuss
the evidence, apply the law and reach our conclusions. It
is of the first importance that elections must be free and
fair if the democratic system is not to founder. Not long
ago a Chief Justice of this Court, delivering the Lajpatrai
Memorial Lecture, observed:
“Untruths before elections, during elections
and after elections seem to be too prevalent
for a healthy political society.”
He also tartly remarked in that speech:
“There is always a danger of the failure of
democracy. ‘Remember’, said John Adams,
‘remember, democracy never lasts long. It
soon wastes, exhausts and murders itself.
There never was a democracy that did not
commit suicide. We must realise that this is
entirely true.”
The Court is the conscience-keeper of the constituency, as
it were, in the maintenance of the purity of elections to
the extent they are litigated in Court. Shah, J., in
Harcharan Singh’s Case (1) observed
“The primary purpose of the diverse provisions
of the election law which may appear to be
technical is to safeguard the purity of the
election process, and the Courts will not
ordinarily minimise their operation.”
We have therefore to insist that corrupt practices, such as
are alleged in this case, are examined in the light of the
evidence with scrupulous care and merciless severity.
However, we have to remember another factor. An election
once held is not to be treated in a light-hearted manner and
defeated candidates or disgruntled electors should not get
away with it by filing election petitions on unsubstantial
grounds and irresponsible evidence, thereby introducing a
serious element of uncertainty in the verdict already
rendered by the electorate. An election is a politically
sacred public act, not of one person or of one official, but
of the collective will of the whole constituency. Courts
naturally must respect this public expression secretly
written and show extreme reluctance to set aside or declare
void an election which has already been held unless clear
and cogent testimony compelling the Court to uphold the
corrupt practice alleged against the returned candidate is
adduced. Indeed election petitions where corrupt practices
are imputed must be regarded as proceedings of a quasi-
criminal nature wherein strict proof is necessary. The
burden is therefore heavy on him who assails an election
which has been concluded.
There are many who are cynical about the enforcement of the
election law, which is too moral for the pragmatic skills of
the politicians when locked in pitched battles. They regard
these vices as
(1) [1969] 1 SCA 138, 145.
651
inevitable and therefore remain indifferent to their
prevalence. Sydney Harris’ statement in this context is
apposite :
“Once we assuage our conscience by calling
something a necessary evil’, it begins to look
more and more necessary and less and less
evil.”
For this very reason the Court has to be stern so as to
induce in the candidates, the parties and workers that
temper and truthfulness so appropriate to the process and
not bewail, as the Report of the Fifth General Election in
India (1971-72, issued by the Election Commission) does (at
p. 198 thereof) :
“But how can we expect that elections will be
absolutely and totally corruption-free when
the whole country in every sphere and
department of life and activity is plunged in
the ocean of corruption ? It is everybody’s
complaint that there is no business, trade or
industry where black-marketing or bribery is
not pracctised…. Remove corruption in
general and corruption in election will be a
thing of the past.”
The charge of bribery has been made in this case in a
peculiar setting and has been held proved in part by the
learned Judge. Before going into the principal skein of
corrupt practices wound round the alleged propaganda, oral
and documentary, we may dispose of the lesser but equally
lethal episode of bribe-giving. A glance at the communal
composition of the constituency and its behavioral pattern
is necessary to appreciate this ground covered by issue 1.
No part of Indian geography is a religious monolith and Nuh
is no exception to this social diversity and communal mix.
The majority are Meo-muslims (converts from Rajputs carrying
their caste and gothra memory into their Islamic genetic
code and observing in life the clan habit) but there are
also Hindus including Harijans. The Harijans, according to
the petitioner, traditionally vote for the Congress except
when lured away by a fellow Harijan figuring as candidate.
To wean away Harijans from the Congress ballots was very
much to the appellant’s interest and so the petition
alleged, he exploited their communal pathology by setting up
Sohanlal, Respondent 3, as a ghost candidate not to win but
to defeat.
Human homogenisation in elections, breaking down religious
barriers, is social heroism unaccomplished even in the
communal pluralism of the U.S.A. and the U. K. although it
is exaggerated by tradition in. India and hurts it more,
being a developing country. The political pity is that the
secular and social objectives of our Constitutional order
are obfuscated by a system of mass electoral participation
where separate electorates, written with the invisible ink
of life, are partially perpetuated by political leaderships
bent on shortcuts to power. The law should so develop as to
dis-induce communal-reli-gious appeal by the crypto-casteism
of the candidature itself We say this not as a strange evil
of our society but as an inadequacy of our election life and
law. Newton D. Baker observes about the U. S.
652
situation while considering the harm of a switch-over to
proportional representation :
“We have groups of all sorts and kinds formed
around religious, racial, language, social and
other contentious distinctions. Proportional
representation invites these groups to seek to
harden and intensify their differences by
bringing them into political action where they
are irrelevant, if not disturbing. A wise
election system would invite them to forget
these distracting prejudices.”
The 1st respondent’s case is that the appellant persuaded a
financially incompetent Sohanlal-respondent No. 3-to stand
as candidate over-ruling his reluctance by offer of Rs. 125
and promise of footing his campaign bill, in a bid to skin
away the Harijan pro-Congress votes. This was on February
9, 1972. Since the lower Court has rejected this episode,
we too ignore it. But the official date for withdrawal,
February 14, found the hesitant Sohanlal hovering around
retirement from an expensive context. The 1st respondent’s
story is that the appellant gave a shot in the arm by
proffer of Rs. 1,000 and a car for use till the election was
over. This stroke of bribery continued the Harijan
candidate in the arena. The finale of this shady chapter,
disbelieved by the Court, is that a couple of days before
the actual poll the appellant purchased Sohanlal’s
retirement and exhortation to his followers to support the
appellant at a price of Rs. 2,000 paid on March 10, 1972.
This facet of the case has been eliminated at the High Court
level and need not detain us. The narrow point that
survives for our scrutiny as to whether the appellant did
commit the corrupt practice under s. 123(1) of the
Representation of People Act, 1951 (the Act , for short), by
placing at the disposal of candidate Respondent 3, car
D.L.F. 675 and promising him the hire charges and running
expenses thereof with a view to his continuance as
candidate, the ultimate gain being the seduction of the
Harijan electors away from the Congress candidate
It is not necessary to examine whether the evidence
justifies the finding that Sohanlal got the use of a car at
the expense of the appellant. We will assume that is so.
But it is not every help by a candidate to a fellow
candidate that constitutes corrupt practice. Stich finan-
cial aid must be to induce the latter not to withdraw from
the section. May be, a candidate may wish to fight but do
it so bloodlessly that he may not reach his potential
supporters and if his effective canvassing is in the
interests of another candidate (the electoral chemistry has
many actions and reactions) then the latter may invigorate
his campaigning with funds or aid in kind, not for non-
withdrawal but for full-blooded electioneering. To jack tip
is different from preventing a jump down. This is not a
corrupt practice under the law and so the key question is
not whether a car was provided but whether the provision of
the car was to prod the candidate not to withdraw. A close-
up of the evidence on this significant facet leaves us in
serious doubt about the sufficiency and reliability of the
proof.
653
From the evidence in this case it looks as if Sohanlal, the
third respondent, is an indigent person and handicapped by
social backwardness. Nevertheless he is needed as a magnet
to polarise all Harijan votes away from the cow and calf
symbol. It is a worthwhile reflection on the Sohanlal drama
that in order to invest elections with equality of
opportunity in a country of poverty, inexpensiveness must be
stamped on the campaigning process. This may be attempted
in many ways by adapting to Indian conditions experiences
elsewhere,. But the present methodology of fixing up
candidates at the last minute as a product of many pressures
makes for more inputs than consultation with the community
in the concerned area, a sort of informal “primary” and
announcement of the choice will ahead for the constituency
to know and understand the candidate likewise if Party
cadres work constructively and continuously for solution of
peoples’ grievances instead of going into election-eve
campaigning with all the sound and fury of hectic pre-poll
duel to win votes, the project will cost less and vote-
catching stratagems will yield poor pay off. Large
pecuniary lay-out in the business of power politics must be
arrested if the system is not to sink. Today, the average
Harijan, like Sohanlal, has as much chance of winning an
election as a camel has of passing through the eye of a
needle. Naturally he looks around for help. Money is of
key importance if enormous sums must be spent to reach the
vast electorate to break down public inertia and secure
substantial polling. In such a background Rahim Khan (RI)
is alleged to have prayed upon Sohanlal’s inability to
finance his election by offering the sinews of war thereby
indirectly deriving good negative return for his money.
Sohan lal himself has backed a good part of this case,so far
as the giving of a car is concerned. Straight from the
horse’s mouth, as it were, we have this :
“On the 14th of February 1972, Rahim Khan,
Tayyab Hussain, Faquira, Chet Ram and Yamin
Khan came to me, and offered me money and a
car. Rahim Khan paid Rs. 1,000 to Faquira for
expenses on the car. I was carrying on
propaganda for my election.”
On the crucial point whether the car (and all found) was
given to make him continue the contest there is silence in
chief-examination and denial in cross-examination although
his ambiguous sympathies seem, if at all, to be with the
Congress candidate in the election case. The testimony of
P. W. 22 (Ram Kishan), P. W. 23 (Habib), P. W. 24 (Jaswant
Singh) and R 3. W. 1 (Faquira) has been pressed into service
in this connection. The evidence of P. W. 22, 23 and 24
doe,,,, not bear on the condition of non-withdrawal as the
basis for the supply of free transport R3 W. 1 swears :
“During the last general election I was
supporting Rahim Khan respondent. 20 or 25
days before polling I went to Sohan Lal
respondent in the company of Rahim Khan, Badri
Parshad respondent, Tayyab Hussain and Mauj
Khan. Sohan Lal respondent said that although
he had stood for the election, lie was feeling
handicapped on account of lack of financial
resources. Rahim Khan told him not to worry
inasmuch as he
654
(Rahim Khan) would provide him necessary
:finance. In my presence no money was paid,
but Rahim Khan placed a car at the disposal of
Sohan Lal respondent. Rahim Khan told me that
I should support Sohan Lal and that Rahim Khan
would reimburse me for all expenses in
connection with the car.”
Here also the vital element of inducement not to withdraw is
absent. Of course even regarding giving the car there is
some evidence contra of the appellant and of Tayyab Hussain
(R3 W. 9). But the crux of the matter is the pecuniary
pressure put on a candidate to persist in the candidature ;
this latter limb is unproven and not even formally found by
the lower Court. The serious scrutiny of law and facts
expected of election tribunals before unseating a returned
candidate is wanting in the High Court’s finding and we hold
that, suspicions apart, the charge of bribing Sohanlal into
fighting a futile battle has not been brought home as
required by s. 123(1) of the Act.. At the last stages of the
argument before us Shri Sharma made a virtue of necessity
and did not press the case of bribery.
The decisive and deadly chapter of the petition relates to
the multipointed propaganda violating the canons of election
law set out in s. 123(2), (3) and (4). Question of law
about the correct construction of the relevant provisions
arise but the primary issue is one of fact. Were public
meetings held on 9th and 10th of March maligning orally and
through handbills the Congress candidate for lack of
personal morals, for heathen and bohemian ways and for being
a potential danger to good mussalmans ? Were pamphlets like
Ex. P-3 made and distributed on or about March 9 and 10 by
the returned candidate and his agents, describing his
Congress rival as a pork-eater and taker of virginities, as
a coercive agent getting muslim graves dug up and forcing
true muslims eat roast pig ?
A few phenomena appear in this case which deserve judicial
notice for the purpose of appreciating the evidence on this
branch of the story of corrupt practices. Both the
contesting parties, the appellant and the 1st respondent,
are strong men with considerable hold on large numbers of
people in the constituency, as the polling result reveals.
Both of them have been in and out of office and naturally
the bid for power would whet their appetite. The wild
allegations in the petition, if true, would suggest that the
appellant tried many methods of assuring victory for
himself, such as setting up a Hindu candidate who would
carry away the Hindu votes, a Harijan candidate who would
wean away Harijan votes and the Muslim votes being attracted
into his count by painting his Congress rival a kafir and
himself a Muslim good and true. At this stage it is clear
that the theory of ex-communication set up in the petition
has been abandoned. Likewise, bribery based on the Jan
Sangh candidate has also been dropped. The supply of a car
as an inducement not to withdraw from the election to
Sohanlal has been upheld by the trial Court, but we have
already expressed our view to the contrary.
We are left ultimately with the story of the public meetings
where slanderous speeches were made and of libellous
leaflets having been
655
distributed. There is no doubt that tension had mounted and
the candidates were frantic. An order under s. 144 Cr.
P.C. had been clamped down on the whole constituency and a
large police force was moving around to maintain law and
order in the whole area. The argument of appellant’s
counsel is that since meetings of five or more persons in
public places had been prohibited, it was unlikely that
there would have been open violation in many villages by the
appellant himself, a former Deputy Minister and Tayyab
Hussain, a sitting Member of Parliament. Nor could the
police have been so insouciant as to ignore numerous
breaches of the ban on public meetings. Equally strong is
the circumstance that had there been meetings in contraven-
tion of prohibitory orders, the Congress candidate, a
Cabinet Minister at the time of the election, would not have
kept quiet at all. It is also note-worthy that s. 126 of
the Act prohibits holding of public meetings within 48 hours
of the close of the poll. We are impressed with these
circumstances and would have unhesitatingly held as unsafe
the oral testimony in proof of public meetings. However we
are not prepared to discredit outright all the evidence
about gatherings in the villages, where the appellant spoke
to people, solely on the ground of the order under s. 144
Cr. P. C. What we see from the evidence is that there were
no regular meetings prearranged and public. It was more a
case of the appellant running around from place to place,
meeting persons who gathered when he went to a place, his
sitting on a cot and talking impromptu to the men who turned
up within a short time and leaving the place after a little
while. It is difficult to describe these tiny groups
spontaneously assembling and melting away after quarter of
an hour or so, as public meetings. Technically they may or
may not be breaches of the ban order but such minor
liberties are not infrequently taken by both sides and
winked at by the police, lest genuine house-to-house
propaganda by the candidates and their supporters on the
very last day should be interfered with and tension mount up
on the ground that the authorities thwarted a non-Congress
candidate’s canvassing. Certainly we have to bear in mind
the circumstances mentioned earlier in evaluating the
evidence of witnesses, giving the benefit of reasonable
doubt to the appellant.
Many witnesses examined in support of the 1st respondent’s
case are partisans, being the polling agents, counting
agents of workers of the Congress candidate. Their evidence
has naturally to be viewed with circumspection, but not
dismissed outright [See Ambika Saran Singh v. Mahant Mahadev
Nand Giri(1)]. But more curious is the turn-coat type of
witnesses who claimed to be and often were the polling
agents, counting agents or workers of the appellant till the
election was over, but, in the post-election period when the
1st respondent’s party had formed a Government, quietly
shifted their loyalty and gave evidence in proof of the
averments in the petition. It is conceivable that these
persons who had collaborated with the appellant in the mal-
practices alleged were possessed of the urge to unburden
their bosoms of the truth of their own evil-doing and
hurried into the witness to swear veraciously to what took
place actually. But the more probable
(1) 41 E.L.R.183
656
explanation would be that these swivel-chair witnesses with
India rubber consciences came under the influence of the 1st
respondent for invisible consideration and spoke dubiously
in support of their present patron. Of course, if their
evidence is intrinsically sound, if their demeanour is
impressive otherwise, if the incontrovertible facts and
broad probabilities fit in with their version and other
disinterested testimony on the same point is forthcoming, we
should not disbelieve the case merely because some tainted
evidence is also placed on the record. In this view, we have
to scan the oral evidence rather carefully, lest the verdict
of the people at the polls should be nullified on uncertain
and dubious evidence.
Counsel for the appellant and, to some extent, the 1st
respondent’s advocate also, read before us rulings galore as
to when witnesses should be believed and when not.
Precedents on legal propositions are useful and binding, but
the variety of circumstances and peculiar features of each
case cannot be identical with those in another and judgement
of Courts on when and why a certain witness has been
accepted or rejected can hardly serve as binding decisions,
Little assistance can therefore be derived from case law on
credibility. There are no legal litmus tests to discover
the honest conscience of a human being and the canons of
truthfulness of oral evidence sans commonsense, are but
misleading dogmas. The golden rule is, as George Bernard
Shaw tells us, that there are no golden rules. For this
reason we are not referring to the many rulings cited before
us. But we certainly inform ourselves with the general
touchstones of reliability. The fact that we are not ready
to act on the testimony of a person does not mean that he is
a perjurer. It merely means that on such testimony it is
not safe to conclude in a quasi-criminal proceeding that the
‘corrupt pratice’ has been proved beyond reasonable doubt.
The whole constituency is silently present before us it must
be remembered (See observations of Dua I, J. in I.L.R. 1969
I Punj 625.)
We must emphasize the danger of believing at its face value
oral evidence in an election case without the backing of
sure circumstances or indubitable documents. It must be
remembered that corrupt practices may perhaps be proved by
hiring half-a dozen witnesses apparently respectable and
disinterested, to speak to short of simple episodes such as
that a small village meeting took place where the candidates
accused his rival of personal vices. There is no x-ray
whereby the dishonesty of the story can be established and,
if the Court were gullible enough to gulp such oral versions
and invalidate elections, a new menace to our electoral
system would have been invented through the judicial
apparatus. We regard it as extremely unsafe, in the present
climate of kilkennycat election competitions and partisan
witnesses wearing robes of veracity to upturn a hard won
electoral victory merely because lip service to a corrupt
practice has been rendered by some sanctimonious witnesses.
The Court must look for serious assurance, untying
circumstances or unimpeachable documents to uphold grave
charges of corrupt practices which might not merely cancel
the election result, but extinguish many a man’s public
life.
657
With these background observations we shall analyse the
evidence adduced on both sides. We are not deterred by the
negative evidence on the side of the appellant to the effect
that within the ken of the witnesses concerned no meeting
took place or no distribution of pamphlets had been made.
Not only can such evidence be procured but it is hopelessly
inconclusive in the face of definite and positive and
probable testimony, if any to the contrary. Therefore, we
have to search for the evidence in support of the petition,
its reliability arid sufficiency.
Shri Bindra, for the appellant, made a blistering attack on
the learned Judge’s wrong approach to testimonial renegades.
For, strategic documents like Ex P2/P3 and P5/P6 and lethal
circumstances like addressing slandering speeches, are
sought to be proved by the 1st respondent through the
polling agents and other erstwhile activists of the appel-
lant during the election. The Court somehow thought that a
trace of treachery was the signature of truth and that the
post election support to the defeated candidate in the
witness box, speaking to collaboration with there turned
candidate in pre-election corrupt practices, makes assurance
doubly sure. We cannot understand how tergiversation can
become a virtue. Defection in politics is becoming a per-
vasive vice and its projection into election cases must be
frowned upon by Courts. It scandalises us that a person
should be the campaign agent of one candidate during
elections and should shift loyalties during the election
case to undo the victory he contributed to attain. The
price of post-election swivelling must slump. It is naivete
to pin faith on such probative circus and it is necessary to
discourage such defection in the interests of the purity of
the Court process. Except in special circumstances which
are not present in the present case we decline to dismantle
an electoral result by the technique of turn coat testimony.
Here we may clear the ground by removing Sohanlal’s near-
confessional evidence from the area of reliable testimony.
‘Whatever his role before the election, his written
statement and evidence smack of the 1st respondent’s
vocabulary and either he is a fool or a knave or too
truthful to be credible. For he admits receiving a car and
expenses from the appellant, pleads to a mood of withdrawal
and in evidence lends lip service to distribution of the
objectionable handbills and to a last minute withdrawal from
the election at the instance of the appellant. All that we
need say is that his word does not have the ring of
reliability and we leave it at that.
Yet another aspect of the case may be dealt with here, to
clear the deck for a consideration of the serious issues
that survive. Running right through the war and woof of the
petitioner’s averments and evidence and haunting the
political life of the petitioner for long years is a sitting
Member of Parliament on the Congress benches, R3 W9, Tayyab
Hussain. He is charged with visiting village after village
with the appellant an ex- Congress man and now the bitter
opponent of the Congress candidate to deliver vicious
personal attacks on the petitioner, a Minister belonging to
his own Party. The Mec-Muslims had the father of Tayyab
Hussain as their leader and after him, Tayyab Hussain
himself apparently a political family claiming
658
virtually hereditary hegemony over a small community. The
arrival of an educated Meo like the petitioner, a law
graduate, on the political scene was a potential threat to a
vested interest. We find from the evidence personal rivalry
between the two writ large, Tayyab Hussain being ready to
change Party and ally with enemies for personal ends and
getting suspended from the Congress in the bargain. He has
been a Deputy Minister once and has tasted power. May be
the petitioner’s political presence is a spectre for him and
so he may be prone to run that rival down. Even so, there
are boundaries to his hostile operations. Let us look at
him as in 1972. He knows that anti-Party activities will
imperil his Congress future. He has vital stakes in that
party, being a sitting member of Parliament with four years
to go. He was Chairman of the Wakf Board for which his
party position must have partly accounted. The Party High
Command was so near Nuh that had he acted publicly he would
have been pulled up instantly. It is difficult to believe,
even if the man was an adventurist master in the art of the
possible, that this M. P. would have openly and stridently
campaigned in the company of the anti-Congress candidate
With vituperative vigour. His heart may have been with, the
appellant Rahim Khan but he could not have so lost his head
as to strike publicly at Khurshid Ahmed. The heap of oral
evidence adduced in the case does not persuade us to hold
with the 1st respondent on the public doings of R3 W9
hostile to his candidature.
Now let us get to the meat of the matter. For by all
accounts the piece de resistance is the pamphlet part of the
case. A manouvre to malign was resorted to at critical
stage of the poll battle, according to the 1st respondent.
Although there is a volume of oral testimony regarding small
but numerous whistle-stop meetings held in street corners,
common on election eve everywhere, we feel it unsafe to
stake a verdict of corrupt practice on such dubious
material. By passing these oral adventures in vilification,
we proceed to turn the spotlight on the handbills, their
authorship, existence, implications and circulation. We may
straightway state that once we grant this pamphlet
publicity, it will depress the victim’s chances and may
amount to an appeal to religion. Both the candidates are
Muslims but one is less muslim than the other almost a kafir
because he eats pork. The other imputations in the handbill
relate to character assassination and undue influence which
we will refer to presently.
We may as well set out here Ex. P. W. 413, the offending
handbill
“INTRODUCTION OF CH.KHURSHID AHMED AND
SOME QUESTIONS TO HIM.
1. You being a Muslim got dug a grave of a
Mohammadan and got the dead body out due to
your personal enmity, which is against Islam
and its Shariat. Do you still claim yourself
to be a Muslim ?
2. Since you have become a Minister you have
taken bribery from the public for each work of
the public. Do you call this public service ?
659
3. You being Health Minister violated the
modesty of numerous lady doctors and nurses
and till they did not surrender their body to
your lust you did not do any of their works.
Do you want to be elected again so that you
can continue your debauchery
4. You while being a Minister got some Muslims
of village Utawad arrested on allegations of
cow slaughter and made them to eat meat of the
pig.Do you want to be elected again so that
you may be able to make all Muslims eat the
meat of the pig ?
Khurshid Sahib public wants to tell you that
you yourself have become a ‘Kafir’ by eating
the meat of the pig. but the remaining muslims
do not want to become ‘Kafirs’ at your hands.
Public should pay attention and should give
crushing defeat to such a ‘Kafir’. I am
rightly entitled to your vote.
Rahim Khan.”
Appeal to religion, in this context, is influencing Muslim
voters to prefer the appellant for his authentic Islamic way
of life and to repel the 1st respondent for his heathen
habits. A plate for pork is the main un-Islamic conduct
imputed to the 1st respondent. Is it appeal to religion if
voters are told that a candidate consumes unorthodox food ?
That a brahmin eats beef, that a muslim eats pork, that a
Jain eats at night ? Should the law lend itself, in a
secular State, to the little susceptibilities of orthodox
tenets ? If we push it for, particularly in religions like
Hinduism and Islam which contain prescriptions regarding
dress, bath, shave, ablutions and diet, many difficulties
will arise. Eating garlic, radish and uncooked onions and
even the flesh of cattle killed without invocation of Allah
is un-Islamic (See “Who is a Muslim” by G. Ghous Ansari, pp.
39-42). Can you set aside an election because the losing
candidate was described as eating raw onion ? This situation
becomes worse in the Hindu fold. It is strange law that
does not quarrel with an appeal not to vote for a man
because he does not eat vitamins but nullifies the election
for appeal based on radish or pig’s flesh. True, the vice
is injection of religion into politics and playing up
fanaticism to distract franchise. But the back lash of this
provision is a legal enquiry into what is the basic faith,
not its frills and filigrees. it has been held by the Madras
and the Kerala High Courts (71 I.C. 65 and 1971 K.L.T. 68-
Imbichi Koya Thangal v. Ahamed Koya) that the credal core to
identify a Muslim as Muslim is not food and dress but the
triune items of One God, Universal Brotherhood and the Great
Prophet Mahomet, being the last of the Prophets (although on
this last limb there is some dispute). No charge on these
three aspects has been made in the handbills. Thus apostasy
has not been alleged. Nevertheless, having regard to the
ruling in Kultar Singh v. Mukhtiar Singh(1) and the popular
sentiment tied up rightly or wrongly with Muslim religion,
we do not disagree with the view of the High Court and the
stand of both counsel. The secular texture of the law is
primarily the legislator’s responsibility although Caesar
and God should
(1) [1964] 7 S.C.R. 790.
660
not get mixed up in areas of food, clothing and housing and
other temporal matters not inherently interlinked with man’s
communion with the Supreme. What is appeal to religion
depends on time and circumstance, the ethos of a community,
the bearing of the deviation on the cardinal tenets and
other variables. To confound communal passion and crude
bigotry with religion is to sanctify in law what is
irreligion in fact. It is good to remind ourselves of Roman
Rolland on Ramakrishna, quoted in Nehru’s Autobiography
“..many souls who are or who believe they are
free from all religious belief, but who in
reality live immersed in a state of super
consciousness, which they term Socialism,
Communism, Humanitarianism, Nationalism and
even Rationalism. It is the quality of
thought and not its object which determines
its source and allows us to decide whether or
not it emanates from religion. If it turns
fearlessly towards the search for truth at all
costs with single-minded sincerity prepared
for any sacrifice, I should call it religious
; for it presupposes faith in an end to human
effort higher than the life of existing
society, and even higher than the
life of
humanity as a whole. Scepticism itself, when
it proceeds from vigorous natures true to the
core, when it is an expression of strength and
not of weakness, joins in the march of the
Grand Army of the religious Soul.”
The Court must avoid over-solicitude for ultra-orthodoxies,
law, being a secular social process. It is curious that the
Election Commission, in its Report on the Fifth General
Election in India (1971-72) refers to objections regarding
the symbol ‘Cow and Calf’ on the score of religious
associations from eminent persons and in overruling them
cites George Barnard Shaw (Everybody’s Political What
What’s? who said
“The apparent multiplication of Gods is
bewildering at the first glance ; but you soon
discover that they are all the same God in
different aspects and functions and even
sexes. There is always one uttermost God who
defies personification. This makes Hinduism
the most tolerant religion in the world,
because its one transcendent God includes all
possible Gods, from elephant Gods, bird Gods
and snake Gods right upto the great Trinity of
Brahma, Vishnu and Shiva, which makes room for
the Virgin Mary and modern feminism by making
Shiva a woman as well as a man. Christ is
there as Krishna, who might also be Dionysos.
In fact Hinduism is so elastic and so subtle
that the profoundest Methodist and the crudest
idolator are equally at home in it.”
And yet the electoral law construes religion based on
apparel, approved food and other externals. How about
appeal to anti-religion ? That one is a Royist or
rationalist and the rival a religious soul and too other-
wordly ? Rabid Communalism is the real enemy. Let that be
identified by law. A second look at this labyrinth of law
is in keeping with changing times. The ‘voice in the
wilderness’ words of this Court in Ambika Saran Singh’s
Case(Supra) at p. 181 bear repetition
661
“Indian leadership has long condemned
electoral campaigns on the lines of caste and
community as being destructive of the
country’s integration and the concept of
secular democracy which is the basis of our
Constitution. It is this condemnation which
is reflected in s. 123(3) of the Act. In
spite of the repeated condemnation, experience
has shown that where there is such a
constituency it has been unfortunately too
tempting for a candidate to resist appealing
to sectional elements to cast their votes on
caste basis.”
Every Party silently says “He who has not sinned, let him
cast the first stone ” For the purpose of this case, suffice
it to say both sides, agree that Ex. P. W. 4/3 appeals to
religion.
Of course, if Ex. P. W. 4/3 had been circulated it did
contain personal vilification like “womanizing” which in
most countries and among the current generation is a vicious
personal imputation under s. 123(4) of the Act. So we will
ascertain whether on March 9 and 10, handbills like Ex. P.
W. 4/3 had been published by Rahim Khan and his agents. The
rival version is that the appellant was innocent of these
leaflets which must have been concocted after defeat by the
1st respondent for demolishing the election through Court.
Many materials have been marshalled to make out factum of
pamphlet publicity. The granite foundation for it is laid
by Ex. P. 18, an application to the Deputy Commissioner of
the District to which were annexed Ex. P. W. 4/3-4-5
(copies of handbills) and Ex. P. 19 a similar petition
despatched by post to the Chief Electoral Officer along with
Ex. P. 20 and 21 handbills. P. W. 54 Usman has sworn that
he had got a few handbills (the offending ones) on March 10
from one Nihal Khan and made them over to the 1st respondent
P. W. 76. Maybe, this careerist who has been changing
parties, has been a dismissed sarpanch and is otherwise a
partisan and may not by myself embolden us to believe the
leaflet story. But Ex.P.18 was undoubtedly presented to the
Deputy Commissioner on March 10, 1972 in his office at
Gurgaon. His endorsement and that of his General Assistant
P. W. 4 of even date lend strength to the case. The
petition has had a natural journey into the Election Office
under the Deputy Commissioner. Thus quite a few officers and
official entries support the presence of Ex. P. 18 and the
accompanying handbills on March 10. The smoke of suspicion
about the records and the obliging unveracity of the high
officials, glibly alleged, have no substance. We have care-
fully examined the criticism levelled by Shri Bindra and
considered the possibility of antedating but are satisfied
that the hypothesis of conspiracy for fabrication is too
fantastic to merit acceptance and the nonexamination of the
Deputy Commissioner, in addition to his General Assistant P.
W. 4, does not militate against the acceptability of the
case. The endorsement on Ex. P. 18, relevant under s. 35
of the Evidence Act, clinches the issue, read in the light
of P. W. 4’s evidence. Ex. P. 19, a similar application
was also presumably posted on the 10th March. It was
received on 13th March, which is probable since 12th was a
Sunday. The suggested interpolation in the register kept in
20-185 Sup. CI/75
662
the office of the Chief Electoral Officer is a mirage. it
has no meaning in the absence of cross-examination. A close
took at Ex. P. 19 and Ex. P. W. 2/2 dispels doubts and the
entries corroborate P. W. 2’s testimony as well as the fact
of the leaflets having been in existence on the 10th of
March. Let us probe the likelihood of a later fake. The
petitioner had no reason to be desperate about a defeat. In
fact the lead of the appellant was narrow. Only after the
result was declared on 12th could he have thought of
creating evidence to undo the election. Both Ex. P. 18 and
Ex. P. 19 became inexplicable on that basis unless many
public documents and public servants have tampered with
truth in a chain conspiracy too nefarious to be credible.
Some officers may oblige but it is unfair to impute such
gross misconduct to responsible men and flimsy fancies.
Other minor attempts to cavil at the evidence on this part
of the case merit little serious study. We broadly agree
with the High Court that the arguments of the appellant for
rejection of Ex. P. 18 and P. 19 and connected documents
cannot be contemplated without importing criminal conspiracy
for which there is no foundation and they must be repelled.
However we will advert to them briefly.
We have earlier indicated our dissent from the High Court
when it trusts P. W.’s 12, 13 , 20 and 23 as reliable on
leaflet distribution because they were pre-election agents
of the opposite party. Tile Court observes
“The evidence above set out under this head is
fully acceptable to me. I am specially
impressed by the depositions of Din Mohd. (P.
W. 12), Roshan (P. W. 13), Mohd. Khan (P.
W. 20) and Habib (P. W. 23). All of them
worked for the returned candidate during the
election and there is no reason why they would
make false depositions against the interest of
the returned candidate.”
Our credibility sense is sceptical of this evaluation. We
disapprove of this method and approach in assessment of
evidence. Even so, let us go into the major criticisms of
the 1st respondent’s case. We are not blind to the
possibility of executive officers designing to oblige
Ministers in elections as happened in Ambika Saran Singh’s
Case(Supra). Maybe, there is some embarrassment for weak
officials when sitting Ministers are candidates but what can
be done about it ? We have appreciated the evidence with
this factor also in mind. However, the many may be’s
suggested by Shri Bindra to disbelieve the official
documents are ingenious but the cross-examination of the
witnesses is innocent of them.
The appellant had applied, under Exhibit R. 1 W. 21/1 to the
Deputy Commissioner for a copy of the entry in the register
of Miscellaneous Branch with regard to election posters,
i.e. handbills made mention of in the election petition. He
received a reply (Exhibit R.1/A) that no such posters had
been received in the Miscellaneous Branch of the Deputy
Commissioner’s office and therefore the question of their
entry in the register did not arise at all and in fact no
such register had
663
been maintained in the Miscellaneous Branch. Actually the
more important document for which a copy should have been
applied for was the letter Exhibit P. 18 which was mentioned
in the List of Reliance filed along with the petition. Nor
is it correct to say that the returned candidate’s
application was comprehensive one. He confined himself to
the Miscellaneous Branch Register in the Deputy
Commissioner’s office. What is more prevaricatory, counsel
for the appellant showed us a certified copy of Exhibit P.
18 which his client had got from the Deputy Commissioner’s
office long before the written statement was filed and yet
he pleaded there in ignorance of its existence. We have
examined this case from every angle possible and are
satisfied that Exhibits R1/A is of little service in
debunking Exhibit P. 18 and the leaflets accompanying it.
Repeated criticism was made by Shri Bindra that the Deputy
Commissioner was the Deputy Secretary in the Department of
which the 1st respondent was the Minister and that therefore
he was prone to help the latter. Counsel contended
vehemently that officers are liable to be pressurised and
when a whole election turns on documents in the custody or
writing of officials, free and fair elections and their
survival through election petitions become precarious. He
drew our attention to the observations of Grover, J. in P.
R. Belagali v. B. D. Jatti(1) which make a vain echo in the
present case. The learned Judge there observed :
Free and fair elections are the very
foundation of democratic institutions and just
as it is said that justice must not only be
done but must also seem to be done, similarly
elections should not only be fairly and
properly held but should also seem to be so
conducted as to inspire confidence in the
minds of the electors that everything has been
above board and has been done to ensure free
elections. It will be a sad day in the
history of our country when the police and the
government officers create even :an impression
that they are interfering for the benefit of
one or the other candidate. This is
particularly so if a candidate is holding an
important position or assignment like
respondent No.1, who at the material time was
a Minister in the State.”
However, these observations, pertinent as they are in the
circumstances of that case-and guidelines as they should be
for Government to follow-do not detract from the reliability
of the official records relating to Exhibits P. 18 and P. 19
or the acceptability of the General Assistant’s evidence.
It is true that the Deputy Commissioner could well have been
examined by the Court, particularly when his plea was only
for a postponement by two days on account of high blood
pressure and his evidence would have been of considerable
assistance to the Court in arriving at the truth. But this
omission on the party of the Court, avoidable though it was,
has not affected materially the evidentiary value of the
documents and we are prepared to repose confidence in them.
664
Considerable criticism about P. W. 54 Usman was levelled, on
a,. general ground based on non-mention of him either as a
source of information or as part of particulars. Of course,
his name was mentioned in the list of witnesses but that was
in September, 1972. We are not inclined to the view that
the name of every witness should be mentioned in the
particulars except where his name becomes a necessary item
of particulars. Shri Bindra analysed the various witnesses
including P..W. 54, Usman under a microscope, dissected
their evidence in the crucible of pleading-particulars-
information source with reference to villages, public
meetings, pamphlet distribution and the like. We are
satisfied that the High Court’s approach is right and the
hyper-technical analysis resorted to by counsel should not
be pushed to the point of defeating justice. No corrupt
practice can be established if processual impediments are
heaped up against the credibility of witnesses. Nor can any
petitioner go into such minutiae as the names of all
witnesses even at the time of election petition is prepared.
Neither S. 87 nor even S. 83 nor even rule 94A and Form 25
require this drastic attitude. Rule 12, framed by the High
Court for the trial of election petitions, it is true, does
require the source of information to be mentioned at the
earliest stage and it is a wholesome rule, to prevent after-
thoughts. But every witness need not be mentioned as a
source and every source inform and need not be examined
necessarily. Whether the omission to do so in a given case
reflects on the credibility of the evidence depends on the
facts and circumstances of the case. It depends on the
overall circumstances and the fairness of the trial. The
observations in Ambika Saran Singh’s Case(Supra) at P. 190
are apposite :
“The question as to the extent of particulars
which the Court would demand depends on the
circumstances of each case, the nature of the
charge alleged and the quality and reliability
of evidence before it.”
While the Court must be careful to insist that the means of
knowledge are mentioned right in the beginning to avoid
convenient embellishments and irresponsible charges, it
should not stifle good and reliable testimony or thwart
proof of corrupt practices by the technicalities Of
procedure. We agree with the observations made in Balwant
Singh v. Lakshmi Narain(1) and are not deterred from
considering the evidence of P. W. 54 and others similarly
circumstanced. No prejudice on account of deficiency in
particulars is made out. We have already. indicated that we
would not be prepared to base our conclusion solely on the
testimony of such a witness as P. W. 54, but that does not
mean that we should blackout all evidence where the
witnesses are liable to some criticism and not consider such
evidence even though there are other reliable or
incontrovertible materials which lend assurance to its
credibility.
The other point made is that there is no entry in the
register maintained in the office of the Deputy Commissioner
about Exhibit P.-18
(1) 22 E.L.R. 273.
665
This is not correct because, in a sense, the Election Branch
is also part of the Deputy Commissioner’s Office and there
is an entry in the register there. The suggestion that the
Deputy Commissioner succumbed to the petitioner’s pressure
and antedated Ex. P. 18 is difficult to digest. Similarly
the suspicion sought to be raised about Register P. W. 2/2
kept in the Chief Electoral Officer’s office on the basis
that there are two entries bearing serial number 5072 is
unsound. The entry with which we are concerned is 5072A and
this is not unusual when by mistake a clerk has written
identical figures for two entries. Moreover there is no
cross-examination on this point and in the absence of cross-
examination giving an opportunity to the witness to explain
the circumstances from which an inference is sought to be
drawn, no such inference-.particularly of forgery and
publication of documents can be permitted to be raised.
A rather trivial argument has been made that if a letter had
been sent to Chandigarh on March, 10, the postal expenses of
a few paise should have been entered in the return of the
election expenses. Admittedly such an entry does not find a
place in the return. For one thing, the amount is so
negligible that its non-mention means nothing. For another,
it is difficult to accept the plea that this candidate who
was a Cabinet Minister and was locked in bitter battle with
a strong opponent in a do-or-die Struggle would have spent
only a mail sum of over Rs. 4,000. It is a notorious fact
that huge sums of money are lavished by candidates on
election, thus closing the door for ordinary people to
contest democratic elections. The point is that when
suspiciously small sums are returned as election expenses,
no machinery to investigate and take action is found with
the result that return of election expenses becomes an idle
ritual and not an effective check. If parties pour funds
for campaigning the law is silent and helpless. This is
certainly a matter for the Election Law to consider. It
must make provision deterrent enough-so as to enable the
small man to negotiate with elective opportunities.
Even at this stage we may notice that the handbill in
question does not contain the name of the printer and
publisher although the election law so requires.
Unfortunately when such printed material is circulated there
is no agency of the law which takes prompt action after due
investigation, with the result that no printer or candidate
or other propagandist daring elections bothers about the law
and he is able successfully to spread scandal without a
trace of the source, knowing that nothing will happen until
long after the election, when in a burdensome litigation
this question is raised. Timely enforcement is as important
to the rule of the law as the making of legislation.
We may conclude by holding that we accept Exhibits P. 18 and
P. 19 as genuine and concomitantly find that the handbills
containing injurious statements were in existence on or
before the 10th of March. The only question that remains is
whether a nexus is established between these handbills and
the appellant and the factum of their prepoll circulation by
him or his agents is proved. Without this latter
requirement being made out, mere leaflets do not spell
invalidation.
666
Once we find that Exbits P.18 and P.19 are not
fabrications.ante-dated or planted in the offices of the
Deputy Commissioner and the Chief Electoral Officer bearing
endorsements and entries, involving in the process a chain
of officials willing to tamper with public records, we have
to seek their probable author. The appellant’s cross-
examination of the witnesses who proved the handbills merely
coquetted with speculative possibilities and shifting
suggestions without putting forward a credible alternative,
explaining their presence around March 10. The handbills,
purport to be issued by Rahim Khan and the motive for him to
do so is strong. After all, the evidence discloses that
there were allegations in the Haryana Assembly against the
first respondent as a womanizer and in fact there was a cow-
slaughter case and dis-interring of a muslim grave and
allegations of the hand of the first respondent behind these
doings. Quite possibly capitalising on these straws in the
wind, the appellant who was fitting his opponent hard made
an attack involving personal imputations circulated by a
leaflet engagingly presented as a string of questions with
answers self-evident and involving appeal to ‘religion’ not
even thinly concealed. Since a number of handbills had come
into the possession of the first respondent on the 10th
which lie forwarded to the two officials along with Exhibits
P. 18 and P. 19, the circumstances be speak. prior
circulation. The question is whether Rahim Khan, the
appellant, has been directly shown to be linked with it.
One cannot presume such an important ingredient against a
returned candidate unless the sure facts compel. In the
present case some clever manouvres have been made by the 1st
respondent to connect the appellant with the handbills.
Courts must be astute enough to discourage over-cleverness
of parties and decline to rely on materials which perhaps
may be true but bear the stamp of shadiness on their face.
For instance, we have Exhibit P. 5 a note written by P. W.
21 Din Mohammad on the reverse of Exhibit P. 6, a copy of
the offending handbill, Exhibit P.W. 4/3. P.W. 21 is a
polling agent of the returned candidate but swears in
support of the defeated candidate in a plausible way. He
states on oath that Exhibit P. 6 reached his hands on March
11, when it was being distributed in his village. While in
the polling station he made a note on the reverse of Exhibit
P. 6 Which runs :
“Shri Samad Khanji,
Very few voters are coming from your village. The time
left is short. Have the voters sent quickly.
Nangal Shahpur. Din Mohd. Dated, the 11-3-1972"
He wants us to believe that finding that the voters of
Nangal Shahpur had not turned out he sent this note to Samad
Khan, a.-worker of the returned candidate. But how did this
P. 5 get back,into the hands of Din. Mohd, while it should
normally have been with Samad Khan ? To fill up this gap
P.W. 75, Sharif Khan is pressed into service. He has a
story that one Subhan Khan delivered it to him and lie, in
turn, gave it to the advocate of the petitioner in the
course of the
667
trial of the case. How can Exhibit P.6with the valuable
endorsement Exhibit P. 5, move to and from Subhan Khan (not
examined) to Sharif Khan, P.W. 75 ? The obliging Din
Mohammad, who had come under the spell of the 1st respondent
must have made this telltale endorsement during the pendency
of the case and the document itself is kept back till a
surprise is sprung when P.W. 21 is in the witness box-for
too unfair for its to place reliance. One lie leads to
another till a blind alley of improbability is reached.
Another Din Mohammad, P.W. 12, who also was a polling agent
of the returned candidate has turned turtle to support the
petitioner during the case by producing a copy of the
handbill and a letter Exhibit P. 11/1, addressed to one
Roshan of Mewli village. This letter, Exhibit P.W. 11/1
purports to be a confidential circular by the appellant,
Rahim Khan, requesting that the handbills be distributed
discreetly among ‘Muslim brethren’ eschewing ‘the workers of
the opposite party’. This letter, it is said, was addressed
to Roshan but was not delivered to him directly by P.W. 12
since the former was not in his house. The tale told by
P.W. 12 further is that he made an endorsement on this
letter (separately marked as P.W. 11/2) requesting Roshan,
P.W. 13, to act on the letter. What follows is still more
strange. Roshan, P.W. 13, claims to have received P.W. 11/
1 with the note Exhibit P.W. 11/2 and fifty handbills. He
delivered them to P.W. 11 Ibrahim, some days after the
polling, although this Ibrahim, P.W. 11, is a worker in the
opposite camp. The whole story sounds absurd and
overworked, difficult to be accepted.
Another adventurist piece of documentary evidence is Exhibit
P. 3 with the endorsement Exhibit P. 2 on its reverse.
Mohammad Khan, P. W. 20, was a polling agent of the returned
candidate and now with easy conscience goes over to testify
in support of the 1st respondent. He alleges that Exhibit P.
3 which is a copy of the circular letter Exhibit P. W. 11/
1, together with some of the offending handbills, was
received through one Raj Khan and that he distributed them
in the village. For this reason he must be guilty of
abetting corrupt practice, apart from being a turn-coat.
But what startles us is that P. W. 20 returns the letter
Exhibit P. 3 to Raj Khan after making Exhibit P. 2 note
thereon, addressed to the appellant. it reads
“Ch. Rahim Khanji,
I have received the handbills through Raj
Khan. I shall distribute them properly. You
have not sent me the polling agent forms
although you had told me you would. Arrange
to have them sent at once.
Mohd. Khan
9-3-1972″
Surprisingly enough Raj Khan does not deliver the letter to
the addressee Rahim Khan but shows it to Sharif Khan P. W.
75. The letter asks for it but Raj Khan seemingly faithful
refuses to give it. Nevertheless this Raj Khan leaves it
outside and goes inside to get a
668
cup of tea for P. W. 75. When his back is turned, the man
with little scruples, P. W. 75, abstracts this letter and
Raj Khan never bothers about the loss. The tortuous course
of Exhibit P. 3 is too true to be credible. There is some
more oral evidence of this devalued class. We do not think
we can base our conclusions safely on salvaged bits of
testimony of this contaminated sort.
There is also oral evidence identifying the signature of the
returned candidate on Exhibits P. 3 and P. W. 11/1,
particularly in the deposition of Habib, P. W. 23. He has
not spoken to his familiarity with the handwriting of the
appellant. Opinion evidence is hearsay and becomes relevant
only if the condition laid down in s. 47 of the Evidence Act
is first proved. There is some conflict of judicial opinion
on this matter, but we need not resolve it here, because,
although there is close resemblance between the signature of
Rahim Khan on admitted documents and that in Exhibits P. 3
and P. W. 11 / 1, we do not wish to hazard a conclusion
based on dubious evidence or lay comparison of signatures by
Courts. In these circumstances, we have to search for other
evidence, if any, in proof of circulation of the printed
handbills by the returned candidate or with his consent.
Many villages have been mentioned, where meetings were held
and handbills released, but the trial Court has played safe,
if we may say so, rightly and refused to act on evidence
unclear and uncertain and has upheld the case for only ten
villages out of a larger area. We have pointed out how the
learned Judge has failed to show discernment in relying on
defectionist witnesses (and in two instances, by over sight.
treated 1st respondent’s polling agents as independent
witnesses). So that we are not inclined to go the length
the lower Court has gone regarding these villages. But non-
acceptance of the case of public meetings addressed by the
appellant together with Tayyab Hussain, R3W9, does not
necessarily mean handbills were not handed over to people.
Even where good evidence, not parrot-like repetition, is
forthcoming, as an appellate Court we hesitate to interfere,
on questions of fact where the trial Court has discarded the
evidence. In our view even the ten villages where speeches
were proved to have been made, according to the High Court,
do not sound strong enough, for reasons already given. But
on the distribution of the damaging handbills, we feel
confident that there is acceptable, direct and
circumstantial testimony, to accept the 1st respondent’s
version. For one thing, we have found that these printed
appeals did exist on March 10-not for secreting but
circulating. For another, the motive for publishing these
statements is for the appellant. Again, the circumstance
that the 1st respondent came by many copies thereof on March
10 probabilises prior distribution, certainly with the
knowledge and consent of the appellant. Finally, there is
disinterested evidence on this fact. For instance, take
village Akerrha. P.Ws. 45, 46, 47 and 48 have concurrently
testified that the returned candidate and R3W9 had visited
the villages, talked, to voters and circulated handbills.
The learned Judge discredits P. W. 46 because he was an
agent of the 1st respondent. Quite right. But the other
witnesses are not discussed at all. So we have read them
669
to ascertain their credibility, particularly since the
contrary witnesses of the appellant have been disbelieved.
Negative evidence is ordinarily no good to disprove the
factum of meetings. But to disbelieve a witness because he
came without summons, as the trial Court has done, is
altogether wrong. Evenso,the evidence of R1 W13, R1 W14 and
R1W15 was rightly rejected by the trial Judge as useless.
However, we are satisfied that no ground exists to
disbelieve P. W. 45, an apparently disinterested person.
The non-mention of every name in the affidavit in support of
Election Petition is no ground to reject witnesses. P.Ws.
45 and 47 sound natural and disinterested and no reason
exists to discard their evidence regarding the nocturnal
circulation of printed handbills like, P. W. 4/3. No formal
meeting was held, no chair, no mike, no announcement nor
even petromax light. Not the speeches, but the distribution
of pamphlets is the credible part of the case. The former
depends only on the oral testimony of witnesses, the latter
is reinforced by actual handbills. The same thing holds
good regarding the villages where positive findings have
been recorded by the trial Court. We think that
irrespective of the election speeches by the appellant and
R3W9, which may or may not be true the last minute
circulation of handbills, must be accepted.
We are aware, as noticed in B. Rajagopala Rao v. N. G.
Ranga(1) that the enemies of a winning candidate may get
such notices printed and distributed as part of the strategy
of subverting an unfavourable election result. We also
remember the words of caution in other dicta already
referred to and do not rule out the possibility of officers
not being above-board where Ministers are engaged in hot and
rearlosing battles. It is after anxious consideration that
we have come to the ultimate inference already expressed on
Ex. P. 18, P. 19 and P. W. 4/3 and the publicity given to
the handbills.
On this finding that the appellant did distribute Ex. P. W.
4/3 type handbills, what corrupt practices are constituted
thereby?
‘Character assassination’-to use a cliche-comes within s.
123 of the Act, since the 1st respondent has called them
false and the appellant has agreed he does not believe them
to be true. On the present view of the law, the handbills,
in their climatic part, exhort Muslims to support the
appellant in. the name of ‘religion’. But divine
displeasure’ on account of prandial impropriety and ‘undue
influence’ for fear of forced pork eating, cannot be
distilled from these handbills without doing violence to the
prevailing protection of the rule of law in the country.
Half serious apprehensions are not ‘undue influence’ by any
standards. No one in India in the ’70s will shiver with
fear that a candidate, when he wins an election, will force
down his throat distasteful pork. Such chimerical
apprehensions are unreal and cannot receive judicial appro-
val. Equally untenable is the trepidation in the hearts of
the voters that if they cast their ballots in favour of one
who eats pig’s meat, the wrath of God would annihilate them.
Realism is a component of judicial determination. Neither
undue influence nor divine displeasure looms large in this
case.
(1) A.I.R. 1971 S.C. 267, 275.
670
In the ultimate analysis we hold that the appellant did get
the handbills, Exhibits P. W. 4/3 printed and distributed
among his constituents. Thereby he made statements which
were untrue and which he did not believe to be true and knew
to be false, about the rival candidate with a view to
diminish the latter’s prospects in the election. We further
hold that Exhibit P. W. 4/3 constitutes an appeal to
religion for the purpose of voting for and against. Thus,
under these two heads, a contravention under s. 123 of the
Act has been committed and for these two corrupt practices
the unseating of the appellant becomes inevitable
We may mention here that while meticulous criticism has been
made by both sides of the numerous witnesses examined in the
case, not the many ripples but the major waves shape the
course of the stream in our view, so that we have paid more
attention to the broad sweep of the evidence rather that.
the little details picked up here and there and magnified
before us. Therefore, while not endorsing the entire
findings of the High Court, we uphold two of its major
findings-of corrupt practices-sufficient to undo the
election of the appellant. Further in this case the first
respondent cannot claim to have been clean in alleging
untenable corrupt practices and adducing shoddy evidence.
Where both sides have soiled their hands in the legal
process, both must bear their individual burden of costs.
One last disquieting reflection is prompted in this case.
If a blatant corrupt practice is committed during an
election, there is now no clear statutory mechanism which
can contemporaneously be set in motion by the affected party
so that when it is raw, a record and an instant summary
probe is possible through an independent semi-judicial in-
strumentality. Violations thrive where prompt check is
unavailable. On the other hand, effective contemporaneous
machinery providing for such checks would greatly curtail
subsequent election disputes and even act as a deterrent to
the commission of corrupt practices. Elections are the
cornerstone of the parliamentary system and the arm of the
law should not hang limp in the face of open contravention.
We cannot also close this judgment without exposing what is
really a patent flaw in the judgment of the High Court.
Having found the commission of corrupt practices by the
appellant, Tayyab Hussain (a sitting Member of Parliament)
and a large number of other persons, it was the statutory
duty of the Judge to name all those who have been proved at
the trial to have been guilty of any corrupt practice [s. 99
(a) (ii).] The serious disqualification which would be
visited upon a person who is thus named has compelled the
legislature to introduce the canons of natural justice
before taking this punitive step. The proviso to s. 99(a)
inhibits the naming of a person who is not a party to the
petition without giving him notice to appear and show cause
and a further opportunity of cross-exam-dining any witness
who has already been examined in the case and has given
evidence against him of calling evidence in his defence and
of being heard. This Court has emphasized
671
the obligation of the Election Tribunal in this behalf and
indicated the procedure that may be adopted in Such
Situation in B. P. Mishra v. K. N. Sharma(1) R. M.
Seshadri v. G. Vasantha Pai (2); and Janak Sritar v. Mahalit
R.K. Das (3). Indeed before delivering judgment in the
election, case the Court has to inform and extend an
opportunity to the collaborators in corrupt practice and in
the light of the totality of evidence on record decide the
election petition and the issue of naming those guilty
of corrupt practices.This is not a facultative
power of the Court but a bounden duty cast on it. The high
purpose of ensuring purity of elections is the paramount
policy inspiring this provision. The Court must strongly
deter those who seek to achieve election ends by corrupt
means. It is unfortunate that Courts and counsel are
somewhat indifferent to this requirement of the statute. If
only at the end of an election case where verdicts on
corrupt practices are rendered, Courts would name all those
involved in the pollution of the electoral process, there
would be some hesitation on the part of citizens in
executing these improper projects.
Counsel for the 1st respondent in this case suggested to us
that the distributors of pamphlets or, for that matter, even
the authors thereof may easily escape punishment of
‘naming’ by proving that since responsible candidates had
made such speeches,they did not believe the statements to be
false or even believed them to be true. We are clearly of
the view that belief in this context means reasonable belief
and not easy fancy or foolish credence. Unless the
distributor of mala fide statements establishes that he had
reasonable grounds in support of his belief, tile Court will
not accept his plea and will name him. It is therefore
plain that s. 123 (4) read with s. 99 cannot stultify the
provision for naming of men who deserve to be named,
However, in the present case, we have held that neither R3W9
(Tayyab Hussain) nor the third respondent (Sohanlal) has
been proved to be guilty of corrupt practice. Similarly, we
have not accepted the case that many polling agents of the
appellant had circulated the handbills. In this view, the
need to name anyone does not arise. Of course, the
appellant being a party and guilty has to suffer the
penalty. We are holding against him that he got the
handbills printed and distribute but on other grounds we
have exonerated him for want of compelling,,, probative
material.
(1) (1971) 1 S.C.R. 8. (2) (1969) 2 S.C.R. 1019.
(3) AIR 1972 SC/359.
672
The appellant, in this case, is less guilty than the 1st
respondent depicts him but is less innocent than he
professes. Electoral purity must claim its victim and we
set aside the appellant’s election, nothing that :the virus
of corrupt practices cannot be controlled save by
comprehensive systemic changes with emphasis on a fearless
enforcement instrumentality and a national political
consensus to abide by norms-a consummation devoutly to be
wished. Today the yawning gap between law in the books and
unlaw in action has made inhibition of corrupt practices a
once-in-a-blue-moon- tribunal phenomenon.
For the reasons set out above, we dismiss the appeal with
the direction that parties will bear their respective costs
throughout.
V.P.S. Appeal dismissed.
673