Full Judgment Text
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PETITIONER:
ABDUL HUSSAIN MIR
Vs.
RESPONDENT:
SHAMSUL HUDA & ANR.
DATE OF JUDGMENT20/12/1974
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
CITATION:
1975 AIR 1612 1975 SCR (3) 106
1975 SCC (4) 533
CITATOR INFO :
D 1975 SC1634 (4,9)
RF 1976 SC1599 (6)
RF 1978 SC1162 (5)
R 1985 SC 89 (19)
ACT:
Representation of the People Act (43 of 1951) Ss. 83, 123(1)
(2) and (3)-Scope of.
HEADNOTE:
The appellant is a Muslim, whose mother was a tribal Hindu
who was converted to Islam on the eve of her marriage to a
Muslim. In the election to the Assam Legislative Assembly
from a constituency which is a tribal area of Assam with a
heterogeneous composition of tribesmen vaguely Hindu by
persuasion, plainsmen Hindus and nearly 80% Muslims, the
appellant was declared elected. The respondent filed an
election petition challenging the election inter alia on
three grounds : (1) that the appellant offered Rs. 2,000/to
P.W. 12 a Mulla to collect votes for him, and though P.W. 12
refused the offer the appellant was guilty of the corrupt
practice under s. 123(1) of the Representation of the People
Act, 1951; (2) that the appellant was guilty of corrupt
practice under s. 123(3) because he canvassed for votes on
the basis of his religion by asking for votes on the ground
of his being the son of a tribal Hindu woman; and (3) that
the appellant exercised undue influence by threatening that
the persons who might note for the respondent, could be
identified and would be subjected to the same treatment as
people of Bangladesh were by the Pakistanis. thus violating
s. 123(2). The High Court allowed the petition.
Allowing the appeal to this Court,
(Per, Alagiriswami, J.)
(1) Regarding the first charge, P.W. 12 stated that the
appellant offered him money if he would work for him in the
election in the two villages in which he happened to be the
Mulla. Another witness stated that the appellant told him
that he had offered money to P.W. 12 for helping him in the
election campaign but that P.W. 12 rejected the offer and,
requested that witness to make over the money to P.W. 12 and
prevail upon him to work for the appellant. These facts do
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not fall under s. 123(1). Therefore. it is unnecessary to
discuss whether, if money is paid or offered as
consideration for votes promised to be secured by a person
using his influence it is bribery or not. because, the
question does not arise out of the facts of this case.
[108G109A]
(Per Krishna Iyer and Sarkaria, JJ.)
(1)(a) An appraisal of the evidence and an overall view of
it makes it doubtful whether the appellant it even met P.W.
12 and therefore, the offer of the bribe had not been
established. [123B; 126E-F]
(b) Section 123(1) requires (i) an offer or promise by the
candidate etc., of gratification to any person, and (ii) the
object must be directly or indirectly to induce an elector
to vote or not to vote at an election. The purpose of the
provision is to ensure poll purity and the exclusion of
pollution by money power. If the payment is to induce an
elector to vote, be it direct or vicariously, it is corrupt.
If the money is paid as consideration for votes Promised to
be secured by an important person of the locality using his
sway it is bribery even though indirectly exercised. But,
if the candidate pays money to use his good offices and
canvass votes for him it would be a border line case. In
the present case, if P.W. 12 had been paid the money
striking a bargain for getting the votes in his ambit of
influence it is electoral corruption. On the other hand, if
it is money received for the purpose of organising
effectively the election campaign by hiring workers, going
ground to places in car, meeting people and persuading them
to vote for the candidate it is
107
proper election _expenses. The touch stone in all these
cases of payment or gratification is to find out whether the
money is paid in reasonable measure for work to be done or
services to be tendered, and whether the services, so
offered amount to a bargain for getting votes or merely to
do propaganda or to persuade voters to vote for the
candidate. The crucial point is the nexus between the
gratification and the votes, one being the consideration for
the other, direct or indirect. In the present case, the
facts as spoken do not even if true, come within the
relevant clause namely s. 123(1), because the offer was made
only to make P.W. 12 work for the candidate that is, to
persuade voters to support the paying candidates. [124B-E,
125B-C, D-F]
(Per Alagiriswami, J.)
(2) As far as the second charge is concerned some witnesses
said that the appellant canvassed for votes claiming that he
was a Hindu and others said that be claimed votes on the
basis that his mother was a tribal woman. In: a
constituency where 80% of the voters are Muslims it is
extremely unlikely that the appellant would have canvassed
for votes on any such basis. The appellant being a Muslim
he could not be said to have canvassed for votes on the
basis of his religion, he not being a Hindu. [109B-C]
(Per Krishna lyer and Sarkaria, JJ.)
(2) (a) The appellant is a Muslim and his appeal, if at
all, is on the basis that he was an inter-caste or inter-
racial or inter-religious product and as such a symbol of
unity or a less communal Mussalman. An appeal by a
candidate that he personifies Hindu-Muslim interplay does
not cross the line of corrupt practice. [114G-115B]
(b) The section requires that the vote must be sought by the
candidate exploiting his religion. An appeal to Hindus by a
Muslim candidate on the ground of his religion is impossible
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under the present Indian conditions. [115E]
(c) In the particular constituency, if one took up a Hindu
posture it would not be an advantage to him, and therefore,
it is unlikely that the appellant sougth votes on the
ground that he is a Hindu. The ground of religious or
communal appeal does not stand in the light of the evidence
in the present case and finding of the High Court is.
therefore, wrong. The High Court had been far too easily
persuaded by unsatisfactory oral evidence each of which is
of an ad hoc character, uncorroborated by any testimony of
compelling value and is contradicted by the party affected.
The criterion of proof beyond reasonable doubt was forgotten
although verbal homage was paid to it. [119C-F]
[It is a matter for profound regret that political
communalism far from being rooted out is foliating and
flourishing, largely because parties and politicians have
not the will. professions apart, to give up the chase for
power through politicising communal awareness and religious
cultural identity.] [119F]
(By Full Court)
(3) The election petition is vague in regard to the
particulars in support of The averment of undue influence.
More than one amendment. was sought and still neither the
names of the persons nor of the places so vital to induce
credence and to show fairplay have been given, in spite of
the appellant urging that the allegation was vague and bold.
One cannot pick up witnesses on route and march them into
the witness box without running the risk of their apparently
consistent evidence from being disbelieved. The charges are
quasi-criminal and have serious consequences and all
necessary particulars have to be furnished in the election
petition as required by s. 83. This being absent and the
entire case resting on shaky ipsi dixits the version
tendered by the respondent could not be believed. [109C-D;
122A-D]
(Per Krishna Iyer and Sarkaria, JJ.):
(4) Certain basic legal guidelines cannot be lost sight of
while adjudging art election dispute. The verdict at the
polls wears a protective mantle in a
108
democratic polity. The Court will vacate such ballot count
return only on proof beyond reasonable doubt of corrupt
practices. Charges, such as have been imputed here, axe
viewed as quasi-criminal, carrying other penalties than
losing a seat and a strong testimony is needed to subvert a
Returning Officer’s declaration. At the same time, findings
reached by the trial judge, will not be reappraised and
reversed in appeal unless palpable errors or misappreciation
are writ large on them. [111H-112B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal No. 915 of 1973.
From the judgment and order dated the 30th April, 1973 of
the Gauhati High Court in Election Petition No. 2 of 1973.
R. K. Garg, S. C. Agarwal, S. S. Bhatnagar, V. J. Francis
and S. N. Chaudhary, for the appellant.
D. N. Mukherjee, Prodyot Kumar Chakravarti and N. R.
Chaudhry, for respondent No. 2.
The Judgment of V. R. Krishna Iyer and R. S. Sarkaria. JJ.
was delivered by Krishna Iyer, J. A. Alagiriswami, J. gave a
separate opinion.
ALAGIRISWAMI, J. I agree with the conclusions of our learned
brother Krishna Iyer. But I think it necessary to say
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something on my own.
The appeal relates to the election to the Assam Legislative
Assembly from Dhing constituency. The appellant was
declared elected by a majority of 1185 votes. The
respondent filed an election petition making three charges
of corrupt practices against the appellant. The learned
Judge of the Gauhati High Court held that the charges were
made out and allowed the election petition. Hence this
appeal.
The first charge was the offer of a bribe to P. W. 12. The
second ,charge was that the appellant was guilty of a
corrupt practice under section 123(3) of canvassing for
votes on the basis of his religion. The third charge was
that he exercised undue influence by holding out the threat
that the people who voted for the respondent would be
identified and subjected to the same treatment as the people
of Bangladesh by the Pakistanis.
Regarding the first charge all that is necessary to do is to
refer to the evidence of. P.W. 12 and 13. P.W. 12 stated
that the appellant offered him Rs. 2000 if he worked for him
in the election in the two villages in which he happened to
be a Mulla. P.W. 13 stated that the appellant told him that
he had offered Rs. 2000 to P.W. 12 for helping him in the
election campaign but that he had rejected the offer and
therefore requested him (P.W. 13) to collect the money and
make it over to P.W. 12 and prevail upon him to work for him
(appellant). Clearly this does not fall under section
123(1). 1 consider it, therefore, unnecessary to discuss
whether if money is paid ,or offered as consideration for
votes Promised to be secured by a person
109
using his influence it is bribery or not. It is a good
policy not to discuss in a judgment question which do not
arise out of the facts of the case.
As far as the second charge is concerned, it is said that
the appellant’s mother was a ’Kachari’, one of the tribes in
Assam. But admittedly she was converted to Islam before she
married the appellant’s father., Some witnesses say that the
appellant canvassed for votes claiming that he was a Hindu.
Some others say that he claimed votes on the basis that his
mother was a Kachari. All that is necessary to say about
this part of the, case it that apart from he fact that in a
constituency where 80 per cent of the voters were Muslims it
is not at all likely that the appellant would have canvassed
the votes on any such basis, there is no doubt that the
appellant being a Muslim he could not be said to have
canvassed for votes on the basis of his religion, he not
being a Hindu.
As regards the third charge, in spite of the three
amendments made to the election petition material
particulars were not given on the basis of which the
evidence regarding this charge could have been admitted. I
agree with the conclusions of my learned brother on the
basis of the evidence which he has discussed that the case
of undue influence is not satisfactorily established.
I agree that the appeal should be allowed and the election
petition dismissed with costs.
KRISHNA IYER, J. In the current Indian socio-geographic
context, with its delightfully and distressingly diverse,
traditional and complex humanity, we have to appreciate the
three grounds of corrupt practice levelled through this
election appeal against the Congress candidate who secured a
lead of 1385 votes but was allegedly guilty of several
malpractices at the polls of which three have found favour
with the High Court and have been challenged before us.
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Briefly, they are
(a)that the petitioner offered Rs. 2,000/- to
one Jabbar Munshi (P.W. 12) to collect votes
for him which this righteous soul spurned and
therefore the preferred payment did not
materialise although the corrupt practice
under s.123(1) was nevertheless committed;
(b) the petitioner, of the same Islamic
faith as his opponent though, canvassed votes
using the potency of a queer sort of mulatto
religious or communal appeal, thus Petting
caught within the coils of s. 123(3) of the
Representation of the People Act (hereinafter
called the Act, for short); and
(c) he exercised a kind of undue influence
to which people of States of our country
bordering on Pakistan and a sizeable Muslim
population may perhaps be peculiarly
susceptible, viz., subjection to the
excruciating torture suffered by the East
Pakistanis if perchance these voters dared to
vote against
110
the Congress thus violating the basic
guarantee of free and fair elections contained
in s. 123(2) of the Act.
The High Court’s holdings on those charges
may, at the outset, be set out, to get a hang
of the controversy in this appeal
"According to the statement of Jabbar Munshi,
which is reinforced by that of Sahed Ali the
respondent No. 1 had offered Rs. 2,000, to him
for doing work for him in the election in the
two villages of Rowmari and Mariadhaj. Shri
Choudhury laid emphasis on the word ’inducing’
used in sub-clause (A) of Clause (1) of
Section 123 and canvassed that we cannot spell
out inducement by Jabbar Munshi vis-a-vis the
voters putting up in Rowmari and Mariadhaj
from his statement that he had been offered
Rs. 2,000, to do work for the respondent No. 1
in the election in the said two villages.
Here, again, it is not possible to agree with
Sri Choudhury If a priest of a village is
pressed into service by a candidate, who has
offered to pay him handsomely, to help him in
the election work, it becomes patent that the
priest is to use his influence as such in
winning votes for the candidate who had
approached him. Hence all the ingredients of
sub-clause (A) of clause (1 ) of section 123
are proved by the dependable testimony of
Jabbar Munshi and Sahed Ali with the
consequence that the corrupt practice of
bribery attributed to respondent No. 1 is
established."
"In view of the above discussion of the
relevant evidence I conclude that Kanak
Doimari and Kahiram Deuri have spoken the
truth with the consequence that the
respondent No. 1 is proved to have solicited
votes on the basis of his being the son of a
Boro Kachari woman. This appeal was made up
him in village which were inhabited by tribals
who may or may not be considered as Hindus but
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they are certainly not Muslims. Therefore,
all the ingredients of Clause (3) of s.- 123
are established."
:,The statements of the relevant witnesses of
the petitioner are that the respondent No. 1
had told them that he is half Hindu and half
tribal because of his maternal lineage. I
have already held the statements of those
witnesses as acceptable. Nothing said by the
respondent No. 1 in the witness box has the
effect, of robbing the statement of those
witnesses of their quality as held by me. of
being credible. ’Therefore, I hold that the
allegations made in section C9(i) C9(ii) of
Part III of the Annexure are proved beyond
reasonable doubt and as such the respondent
No. 1 is guilty of the corrupt practice
mentioned in clause (3) of section 123 of the
Act."
It is mentioned in Section B that the
respondent threatened the Muslim voters that
in case they voted against the Congress,
whose nominee be was, it would be possible
111
this time in view of the new system of voting
introduced, to detect that fact and that in
such an event they shall be severely dealt
with. According to the new voting system
introduced in 1972, it may be stated, each
elector, to whom a ballot paper was issued,
had either to make his signature or place his
thumb mark on the counter-foil of the ballot
paper. That fact, it is mentioned in Section
B, was prominently brought to the notice of
the electors by respondent No. 1, The threat
held out to them, besides that they shall be
severely dealt with in case they voted against
the Congress, was that they shall be
considered and treated as Pakistanis and
supporters of Yahya Khan and having worked
against the Congress Government which meant
and implied that they Were voting against
Srimati Indira Gandhi and as such were anti-
national. In Section F of Part VI it was
stated that the respondent No. 1 and the men
working with him had propagated that if the
electors voted in favour of a candidate other
than that of the Congress ’the Congress would
carry out torture amongst the Muslims as was
done in suppression by Pakistan".
"The up-shot of the discussion of the evidence
of a large number of witnesses examined by the
petitioner and the respondent No. 1 bearing on
the allegations set out in Sections B and F of
Part VI is that those allegations are proved
to the hilt."
Hearing this appeal, we realised that there was an endemic
sensitivity to election propaganda and method in certain
regions which would be wasted strategy else where because
human responses differ according to the socio-political
conditioning of groups and communities. Here we are
concerned with a tribal area of Assam, a border State with a
heterogeneous composition of tribesmen, vaguely Hindu by
persuasion, plainsmen Hindus and a ’considerable number of
Muslims. A Mulla or Muslim minipriest may have sway over
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his orthodox flock here while elsewhere his voice may be
ignored. A threat of East Pakistan type terror or pro-
Pakistan branding is prone to frighten many here while in
Central India or the South such a bogey may have less
minatory impact. Religious appeal or communal appetite in a
bigoted and backward population is stronger than in ail
enlightened or indifferent or other area with a long
tradition of peaceful co-existence of variegated religious
groups or cosmopolitan people. It all depends on the socio-
political pathology or sensibility of each province or
constituency. We cannot dogmatise universally without being
convicted of social inexperience or lack of political
realism. Shri Mukherjee, counsel for the respondent, is
right in stressing the interplay of divergent kinks making
up the mores of the Dhing Assembly constituency. Before we
can competently judge human nature we must educate ourselves
about the behaviourism of the concerned group avowedly
pluralist in this case. Law, after all, is a species of
sociology.
Even so, certain basic legal guidelines cannot be lost sight
of while adjudging an election dispute, The verdict at the
polls wears a
112
protective mantle in a democratic polity. The Court will
vacate such ballot count return only on proof beyond
reasonable doubt of corrupt practices. Charges, such as
have been imputed here, are viewed as quasi-criminal,
carrying other penalties than losing a seat, and strong
testimony is needed to subvert a Returning officer’s
declaration. On the other side of the scales, findings
reached by the trial Judge will’ not be reappraised and
reversed in appeal unless palpable errors or misappreciation
are writ large on them. Such being our broad perspective,
let us come to grips, with the facts and the law arising in
this case.
We will first deal with the second charge-held proved by the
High Court but hardly easy of solution in the legal
connotation of the provision Ls. 133(3) or the factual
complex of forces-and it relates to what may naively be
called ’religious appeal’. For an intelligent understanding
of this translucent provision the best beginning is to
reproduce the subsection and then search for the soul of
this wholesome legal man on communalism in elections a ban
of Indian politics which dies hard, defiant of law and our
secularist creed. Likewise, the voluminous testimony in
this case, bearing on the spectrum of appeals attributable
to a variety of shades and hues from crude Islamic to plain
ancestral kinship and tribal fellowship, baffles identi-
fication, being curiously psychic and sociological. In
these areas of evidence judicial navigation towards the port
of truth is not so simple as the homing instinct or habitual
test of judges whereby they break through false and doubtful
depositions. Local obsessions and subjective exaggerations
have to be kept in leash and objective touchstones and safe
Procedures relied on if we are not to get lost in mere bulk
of evidence or cynical negation of good and bad. To judge
is in part an esoteric art, not a rule of thumb and this
case is a real challenge to our ability to feel our way to
veracity through university. When elections are challenged
on grounds with a criminal taint, the benefit of doubt in
testimonial matters belongs to the returned candidate.
Section 123(3) of the Act reads
"Corrupt practices.-The following shall be
deemed to be corrupt practices for the purpose
of this Act
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x x x x x x
(3) The appeal by a candidate or his agent
or by any other person with the consent of a
candidate or his election agent to vote or
refrain from voting for any person on the
ground of his religion, race, caste,
community
or language or the use of, or appeal to
religious symbols or the use of, or appeal to,
national symbols, such as the national flag or
the national emblem, for the furtherance of
the prospects of the election of that
candidate or for prejudicially affecting the
election of any candidate."
The conscience of this clause-and the core of the legal
inhibitions to impart penal incarnation to the secular
mandate commonly expressed in biblical language
113
"Render therefore unto Caesar the things which are Caesar’s;
And unto God the things that are God’s."
The founding faith of our poll process is to ostracise the
communal vice from the campaign, having suffered from this
virus during the Raj. This great idea must brighten the
legal phrases so that the purpose, the whole purpose and
nothing but the purpose may be carried into effect.
The gravamen of the charge as covered by sec. C(i) and
C(ii‘ of the petition is that the 1st respondent sought
support from tribals on the score that he was half-tribal,
half-Muslim-his mother was of Kachari tribe-while the
petitioner was unmitigated hundred-per-cent Muslim, and
amongst Hindus settled from the plains he pleaded that he
was after all half-Hindu and so, obviously, more acceptable
than are undiluted Muslims like the petitioner. The facts
of parentage are that the 1st respondent’s mother was a
tribal Hindu who was converted to Islam on the eve of
marriage to a Muslim, The refutation by the respondent has
taken two forms. Firstly, no such half tribal or like
propaganda was done and secondly, such a Hindu Muslim
hybridisation in parentage, even if urged tactically before
the relevant communities, did not fall within the obnoxious
provision regarding religious or communal appeal. At best
it was a sentimental sop based on ancestry or kinship,
religious rivalry in appeal being out of the ring since both
candidates were apparently full-blooded Muslims. We are
free to agree that, what with mixed marriages and change of
religion and the gamut of beliefs and unbelief and like
social phenomena, viewed against the backdrop of a dynamic
policy of secularism and national integration, the correct
construction of the sub-section is fraught with
difficulties.
What is religion? What is communal or caste appeal? (We do
not have to deal with the thorny problems relating to appeal
to language, in this appeal). Some of the inherent
confusion besetting ,appeal to religion’ have been indicated
by this Court in Rahim, Khan case.(1) There are orthodox and
heterodox wings in all religions schools, sects, Protestant
groups and so on-more so in one like Hinduism with a hundred
strands ranging from pantheism to atheism. We are here
concerned not so much with theology as with sociology, not
with intra-religious feuds as with the divisive use of
religious faith by projecting them into and polluting
politics and social life Strangely enough, both the
candidates are professing Muslims, speaking, in formal
terms, the petitioner being a revolutionary communist to
boot. Judicial insight into practical politics, measuring,
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the degree of contamination, through injection of religious,
racial, caste or communal poison, of the blood-stream of
healthy electoral processes is a socio-legal essay, as is
discernible in this Court’s ruling in Kultar Singh v.
Mukhtiar Singh(2) that religious appeals can conceivably
play even in a situation where both candidates swear by the
same denomination or faith. Within the fold, variables
operate and blurred areas exist. A fanatic may seek votes
castigating his co-religionist
(1) [1974] 11 S.C.C. 660.
(2) A.I.R. 1965 S.C. 141.
9-L 379 Sup. CI/75
114
rival with reforming zeal as a de faco apostate. But to
delve meticulously into these dark mines of divergent
opinions and clashing practices and hold that ’religious
appeal’ has been invoked is to overdo legality and hamper
social advance. Without being obsessed by procedents and
freeing ourselves from theological inhibitions we proceed to
interpret s. 123(3) of the Act in the social setting of this
case. We cannot countenance, in the name of narrow law, a
push back to movements blending of religions, races, castes
and communities if it will homogenise the people into
national unity, social solidarity and secular mentality. If
the rule of law must run close to the rule of life, this
sociological view-point stands vindicated, since elections
politically expose the social inside in the raw.
Taking this stance is to read legal realism into the
expression ,religious appeal’ used in the relevant
provision. To exhort the masses-assuming the appellant’s
facts to test the legal thrust of his argument-to vote for
himself because his mother was a tribal or a Hindu, is
perhaps prone to excite the clan feeling in a vicarious way,
though the appeal is by a Muslim. Does this sympathy
potential of the appeal to the electorate vitiate the
election as an appeal to religion to get votes ? To
sensitize the voting masses on every politically irrelevant
appeal is bad but not yet illegal. Law lays down practical
norms, not prohibitions of intangible injuries. In a
pluralist society like ours, a certain irremovable residum
of ’minority complex’ will haunt the polls, as it may,
perhaps in a lesser measure, in the United States or even
the ’United Kingdom. A Jew, a black, a Catholic or an
Indian or woman will, without special appeals in that
behalf, rouse prejudices for and against in some countries.
Even in India, the religion or caste or community of the
candidate may exude through his name, dress, profession or
other external indicium. Does it mean that his candidature
is imperiled by the inscription of his name or ,caste suffix
in posters or pamphlets ? Something more substantial,
intentional and oblique is necessary. Similarly, mere
reference to ,one’s tribe, ancestry or genetic commingling
may not be tainted with the legal vice of religious or
communal appeal, exceptional situations apart. It may well
he that a strong secularist candidate may plead with the
electorate to be non-communal and therefore vote for him ,on
the basis that he was an inter-caste or inter-racial or
inter-religious product and as such a symbol of communal
unity. Indeed, mixed marriages may accelerate national
integration and a candidate cannot be warned off by the law
from stressing this non-communal merit of his. That would
be a perversion, of the purpose of the provision.
The substance of the appeal, if at all is-not the delicate,
legal concoction for, Court consumption-that being of Hindu
and Muslim extraction he is a less communal Mussalman. If
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some misunderstand, the bulk understand and the masses have
an uncanny political sense. Viewed from another angle, the
hortative exercise is relatable to parentage, vaguely
sounding in a sub-conscious clan feeling-too remote, too
attenuated to be a plain, or even indirect appeal on grounds
of religion or community. Those who urge, in some
roundabout manner ’Hindu Muslim Ek Ho’ are doing no violence
to law but promote its object. We disagree with any
contrary reasoning or
115
inical approach and hold that an appeal by a candidate that
he personifies Hindu Muslim interplay does not cross the
line of corrupt practice. The sharp edge of the appeal, not
its elitist possibility or over-nice implication, is the
crucial, commonsense test.
Now to the factual conclusion. Did the 1st respondent
project Hindu profile or, more plainly, did he articulate a
Hindu communal appeal ? Religious, it could not be. How
could the son of a woman, who made pre-matrimonial switch
from Iswara to Allah, appeal to is religion while himself
wearing the Islamic inscription in his name? to, declare
oneself an offspring of a religious renegade is not to
appeal to religion. It is unlikely because it does not
socially pay. Even Hindu tribals may probe beneath the skin
and politically discover he no not a Hindu. Moreover is it
strategy in a fevered situation like a hotly contested
election, to propagate, in one part of the constituency
which is predominantly and backwardly Muslim, that one is a
half Hindu ? You cannot insulate such appeals to specified
villages as no iron curtain halts election campaigns.
Counter-productive would have been the result. Whispers may
have succeeded, not public meetings, if the object was
discreetly to spread communal propaganda in a secluded area
put prudently to prohibit its diffusion into other areas of
the same constituency. But here the case is one of public
meetings and drama stage with loudspeakers and other
publicity and wedding gathering, not nocturnal sub silentia
circulation of injurious facts appealing to communal
feeling.
Before we proceed directly to deal with the evidence we
shall refer to one more dimension of the law of corrupt
practice based on communal and allied appeals. The vote
must be sought by the candidate exploiting his religion.
Here the 1st respondent is avowedly a Muslim. An appeal to
Hindus by a Muslim candidate on the ground of his religion
is impossible under the Indian Sun, things as they stand.
Nor is there any religion or tribe for hybrids, something
like ’Hinduslim’. The finer shades, minor tenets or avant
garde movements present in all religions are not the target
of the sub-section which seeks to strike at the cruder,
baser, divisive trends being fostered by casteism,
communalism and the like. All great religions speak
basically the same truth and converge towards the Religion
of Man. Science itself is tending to be spiritual and
religions are turning towards science. Man and his Maker
are the profound theme of the major religions but some men
pervert this deeper urge to make gods go to war against each
other by forming hostile camps. Indian history,
particularly under the British, is tainted with godly blood
of humans and the cunning manoeuvres of candidates to
resurrect that spirit during electoral battles is anathema
for the law. We have no hesitation in taking the view that
here was no religious exploitation by the candidate of his
religion or community, legally or factually. Tribalism may
perhaps be stretched to embrace communalism but the accent
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in the evidence is on half-Hindu bias, not tribal identity.
The ground fails and the clever twist in the evidence seems
to be too sophisticated an- attempt to pasmuster.
It is not out of place to point out that if we stretch
semantics out of context the appellant may, by calling his
rival a revolutionary
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communist (which he claims to be), commit a corrupt practice
be cause to be a communist, nearly means, as a good Marxist,
to be materialist disawoving all religious faiths. Such
obviously cannot be the connotation. Words of wide and
vague import, like appeal to religion, must receive
restricted construction lest law run riot and up set
accepted political standards. For, certain political
parties-an( therefore, their candidates-have mild communal
overtones and Court must confine themselves to clear mis-
direction of voters grounded on plain religious or communal
appeal. Again, to claim to be a) Assamese or Bengalee is
not necessarily a communal appeal-may even be declaration of
minority status of the group. In certain circumstances such
a vote-catching technique may be violative of Article
123(3). It all depends on the over-all factors and setting.
THE FACTS
If the appellant had placated the Hindus by a communally
pala table version of his ancestry, the news of the meeting
would have taken wings and the Muslim voters would have
avenged themselves on him--a risk he was unlikely to take,
the contest being close and damage by inflammatory recoil
from the Islamic and being incalculable. We are inclined to
think that the probabilities are against the alleged half
Hindu story.
Let us examine the oral evidence bearing on this issue. But
since this branch of the case is built on lip testimony,
judicial scepticism has to be activised before upholding
this species of alleged corrupt practice. Witnesses may lie
with counterfeit candour, and judicial hunch. may not
successfully X-ray the unveracity of apparently
disinterested persons. While it may be hazardous to stake a
conclusion on so serious and undetectable a matter as an
election result because a single witness or more swears that
way, no rule of thumb wit work, since Courts weigh, not
count, witnesses. Broad probabilities, corroboration,
circumstantial or oral, the non-production of the best
evidence and a host of like factors have to be taken note
of, even if not elaborately, documented in the judgment.
The screening and testing processes will also give due
weight to the trial Judge’s sense of credence. Ultimately
the appellate Court has to have an appraisal of the
witnesses’ truthfulness and accuracy, the Judge’s experience
of men and matters and careful reflection being the lie-
detector.
The pleadings of the petitioner leave much to be desired
from the point of view of precision and particularity,
especially specification of persons and places so essential
to fair-play in the legal process in such matters. Even if
one winks at this blemish. there must be strict proof
otherwise. The general criticisms made by Mr. Garg, counsel
for the appellant, have force and we will deal with them in
the light of the explanation offered by Shri Chatterjee for
the petitioner.
The appellant has denied having made any such Hindu or
tribal appeal to the voters and the burden of proof rests on
the respondent petitioner. We may also discard the new case
casually set up through some witnesses that the Congress
candidate had declared himself a Hindu (not half but full)
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and asked at public meetings for support on that footing.
Equally adventitious is the emergence of the evidence
117
that the appellant campaigned on the basis of his being an
Assamese. While absence of particulars does not stand in
the way of the Court considering the evidence led on a
ground of corrupt practice if such evidence had been
admitted without objection and no prejudice has been caused
(vide A.I.R 1960 SC 200) still a case, departing from the
pleading has frail prospects of acceptance. The failure to
plead is a blow to the credibility of after-thought
testimony. In the present instance, although some witnesses
have lent up support to the story that the appellant urged
that he be regarded as Hindu and other P.Ws. that, being
Assamese, the voters should back him, we do not give credit
to such belated ipse dixits. May be, as earlier observed,
the Assamese appeal, or tribal sentiment, may in certain
situations savour of communal appeal and on other occasions
be a request by a member of a weaker or backward or minority
section to the people for voting help a democratic gesture-
we need not examine such possibilities here, the evidence on
the point being naked assertions unfounded in pleadings and
unconvincing on probabilities. The Hindus or Assamese or
tribals were small numerically, about 80% of the voters
being Muslims and the balance sheet would show more loss
than gain if one took up a Hindu posture. Nor is there any
force in the submission that witnesses R. Ws. 30, 8, 9 and
12 themselves had admitted the holding of the alleged
meetings because they do not agree on the religious or
communal appeal at all.
The heap of half-Hindu evidence may be analysed, not meticu-
lously but applying commonsense tests. P. Ws. 53, 54, 55,
57, 65, 66, 67, 68, 79, 80 generally testify to the case of
public appeal in tribal and non-Muslim areas that the
petitioner has part-Hindu blood flowing in his veins and
must be voted for on that basis. Impressive in numbers they
are but the phalanx breaks down on closer examination.
We will eshew the impressionistic approach to the
credibility of witnesses but look out for interestedness,
lack of corroboration and other unnatural features. By a
similar token we will examine the half-tribal appeal. The
learned trial Judge has generally chosen to believe these
witnesses and we will have that in mind while appraising
their testimonial worth. P.W. 53 testifies to the
appellant’s visit to a village library and asking for votes
pleading that he may be taken as a Hindu ’because his mother
is a Kachari Hindu’. He admits that the appellant is a
Mohammedan and still states that ’nobody raised any
objection to what he said’. From his evidence it is seen
that there were three persons Puran, Padmaram and Dharani
who were workers of the present respondent sitting in the
library. Although they are interested witnesses their
corroboration could have added some weight to the testimony
of P. W. 53. Moreover the same witness deposes ’A polling
Officer was also sitting with us when respondent No. 1
’talked’. Obviously the evidence of such a witness would
have reinforced the credibility of P. W. 53. We are unable
to take at its face value the testimony of this easy witness
particularly because he goes beyond the half-Hindu theory
trotted out in the pleadings.
P. W. 54 is no better. He also speaks to the request by
the appellant that he be taken as a Hindu by the voters of
the village since
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maternal Hinduism flowed through his veins. However, he
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agrees that the appellant bears a Muslim name and it is
unlikely that he would have visited a Hindu wedding to claim
himself a Hindu. The surprising thing about this witness
is that he swears ’I took the respondent No. 1 to be a Hindu
as well as a Muslim’. That a unanimous decision to vote for
the election-petitioner was reversed unanimously the next
day after the aforesaid appeal to vote on the basis of a
Hindu maternity is liable to be rejected even by the
gullible. We feel P. W. 54 is speaking with his tongue in
his cheek.
P. W. 55 also fares ill although he apparently
corroborates P. W. 54. Strangely enough this gentleman
admits that notwithstanding the Hindu appeal ’the respondent
No. 1 gave out his name as Abdul Hussain Mir which is a
Muslim name and so we take him as a Muslim’. He proceeds to
state that he met the candidate on a later occasion but ’on
this last mentioned occasion, respondent No. 1 asked me cast
my vote in his favour and nothing more’. He hardly
convinces us. It is significant that P. Ws. 54 and 55 do
not speak of any corroborating persons apart from Sri Neog,
the supporter of the appellant. A communal appeal made at a
wedding party could easily have been corroborated by the
bride’s father or other important persons of the village.
This is a lacuna and the story itself can easily be woven
without fear of contradiction.
P. W. 57 repeats his predecessors, but the very appeal
made is self-contradictory because the words attributed to
the candidate are ,that though he is a Muslim ... his mother
is a Kachari Hindu and so he may be taken as a Hindu’. He
mentions the names of certain others who were present on the
occasion as ’leading persons viz. Buddheswar, Bhogram and
Baliram’. But they have not been examined. P. Ws. 67 and
68 depart from the type, design by asserting that the
appellant asked for votes as he happened to be an Assamese.
The former continued ’I joined issue with him for the reason
that he bore a Muslim name’ and whent on to assert ’I told
the respondent No. 1 that he is a Bengalee and not an
Assamese . . . Today also I consider the respondent No. 1 as
a Mymensinghia of East Bengal, that is, a Muslim. P. W.
67’s evidence cannot carry conviction. Nor are we impressed
with the testimony of P. W. 68. We have perused the
deposition of P. Ws. 79 and 80 and for the sake of brevity
we may say that their testimony is weakened by
improbabilities and much oral evidence, served in heapfuls,
cannot help induce judicial certitude.
P. Ws. 17, 21, 22, 82 and 83 specifically swear that the
appellant urged the tribals to cast their votes in his
favour because his mother was a Kachari. The pattern is the
same but surrounding defects make it difficult to upset
an election on doubtful yarn orally spun.
There is a mix up regarding the communal appeal spoken to by
P. W. 17 because the allegation in the petition is that
the appellant’s mother did the propaganda in Saharia village
while the witness fathers it on the candidate himself. Of
course, he is a polling agent of respondent-petitioner and
is willing to swear as directed. Not only is there no
corroboration but R. Ws. 7, 8 and 15 deny the imputation.
119
P. Ws. 21 and 22 speak to communal representation
soliciting votes on the strength of maternal Hinduism, the
propaganda being done in Batabari village. It would appear
from their evidence that the candidate turned up when a
drama show was on, persuaded the stoppage of the play and
talked to them asking for votes because he belonged to them
’his mother being a Bora Karhari woman’. The evidence is
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vague, unlikely and denied by the appellant RW 1 and by RW 5
another man of the village. In this state of dubiety, it is
a high risk to run to rely on the testimony of these two
witnesses.
P. Ws. 82 and 85 speak to a similar propaganda in village
Nijdhing. Both of them go beyond the case in the pleadings
and put forward the story that the appellant urged that the
villagers ’should vote for him as he is a Hindu’. This
evidence is contradicted by R. W. 8, the candidate. We are
far from satisfied that such glib oath of casually picked up
witnesses speaking to circumstances more, ambitious than the
pleading sets forth should from the basis for proof of
corrupt practice.
To sum up, the ground of religious or communal appeal hardly
commends itself to us in the light of the evidence in the
present case and we are constrained to reverse the finding
of the High Court. We are inclined to observe that the
learned Judge has been far too, easily persuaded by
unsatisfactory oral evidence each of which is of an ad hoc
character, is uncorroborated by any testimony of compelling
value and is contradicted by the party affected. Proof
beyond reasonable doubt seems a forgotten criterion,
although verbal homage is paid at the start by the Judge.
The dictionary research into the meaning of religion, race,
caste and community and the ethnic enquiry into tribal life
launched by the tribal Judge may be useful but not conclu-
sive and is legally elusive. Myriad forms of rubbing home
communal appeal exist but if intangible, has to be ignored
in the work-a-day world, law being pragmatic, not perfect.
It is a matter for profound regret that political
communalism far from being rooted out is foliating and
flourishing largely because parties and politicians have not
the will, professions apart, to give up the chase for power
through politicising communal awareness and religio-cultural
identity. The Ram-Rahim ideal and the secular ideology are
often the Indian politicians election haberdashery, not his
soul-stuff. Micro- and mini-communal fires are stoked by
some candidates and leaders whose over-powering love for
seats in the Legislature is stronger than sincere loyalty to
secular electoral processes. Law can efficiently regulate
and control if wider social legitimation is forthcoming.
And this key factor is absent, so much so wrong methodology
becomes rampant. Small wonder, even revolutionaries, imbued
with realism, often prove ’boneless wonders’ when pitted
against communal politics in elections. Courts can act only
if cogent proof is adduced. The charge fails.
We now move on to the terrorising tactic allegedly resorted
to by the appellant. We have earlier noticed that the
politics and practices of electioneering may vary from area
to area and what is good in Tamil Nadu may be foolish in
Nagaland, such being the cultural
120
mosaic that is India. We will transport ourselves to this
constituency, respond to its sensitivity and seek the truth
of the charge of threat of voters in that milieu.
The pleading in this behalf casts the net too wide and vague
and the complaint of the appellant that particulars have not
been forthcoming is not without force. The trial Court
itself has negatived some of the grounds relied on by the
petitioner under the broad head of undue influence, tabooed
by s. 123(2) of the Act. What has survived and has been
upheld is all that falls for our consideration. The drift
of the charge is that the Congress candidate who,
undoubtedly, had the propaganda backing of even Central
Ministers who landed in helicopters, that the voters were
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told about a change in the method of voting which required
the affixture of signature or thumb impression on the ballot
and the likelihood of detection of the identity of the votes
cast, with reference to the voter. The next step in the
threat is that if anyone was found to have voted for the
communist-petitioner he would be subjected to the same
torture the East Pakistanis suffered under the Pakistan
regime. The macabre picture of the blood-bath in Bangladesh
before it was born was perhaps the psychic content of the
threat held out against anti-Congress electors. Making a
margin for the ultra sensitive nature of the constituency to
this grim threat we have to see whether this awesome
propaganda has really been made. Proof must be clinching,
before grave charges can be made good. Oral evidence,
ordinarily, is inadequate especially if it is of indifferent
quality or easily procurable.
P. Ws. 3, 5, 6, 7, 8, 9, 14, 56 and 58 have been relied on
by the petitioner to press home the charge of threat of
torture or undue influence by that means. Of course, the
villages’ assigned to the witnesses vary and the appellant
has not only denied by his testimony but has pressed into
service other witnesses to repudiate the intimidatory im-
putation. They are R. Ws. 28, 31 and 35 in regard to
Salkathi Pathar village, R. Ws. 30 and 35 in regard to
Palastholi village; R. Ws. 9, 12, and 38 relating to the
alleged meeting at Rowman; R. W. 28 in regard to palaswli
Panbari village; R. W. 36 with reference to Jarabari and R.
Ws. 38 and 42 negating the story in relation to Doomdoomia.
A brief and insightful survey of all this testimony may now
be undertaken. P. W. 3 swears that the appellant visited
his house on March 10, 1972 accompanied by R. Ws. 31 and 35
and others. When asked he mentioned that as before he
intended to vote for the petitioner-respondent whereupon the
appellant told him that according to the latest system of
election ’my thumb mark shall be taken on the ballot paper
and if it was found that I had voted for a candidate other
than a nominee of the Congress, I shall be killed in the
manner of East-Bengalees. I was also apprised that all
those voting against the Congress nominee shall be set up in
a line and killed in the way the East Bengalees had been
done to death by the West Pakistanis’. This threat turned
his vote towards the Congress candidate, says the witness.
He had kept this terrible fact a secret till after the
defeat of the election petitioner. The gruesome version is
too terrifying to be true in the conditions prevailing in
India in 1972. It must be remembered that the election-
petitioner is a man of consequence being
121
the President of the Managing Committee of a Madrasa in that
area and former M.L.A. Of course, the substantial vote he
has polled also shows the poor deterrence the alleged threat
has had on the constituency. P. W. 5 encores this case of
threat and mentions the names of R. Ws. 30 and 35 as having
accompanied the appellant. The witness admits that at the
1967 General Elections he voted for the communist candidate,
i.e., the election-petitioner, and that he never disclosed
the present frightful threat having been made to him to any-
one before the election. A perusal of the evidence of these
witnesses just referred to, in the light of the
contradiction by the concerned R. Ws., makes us extremely
hesitant to act on their deposition. Indeed we discount
their credibility.
P. W. 6, the headman of a village and President of a
Madrasa, deposes to a public meeting in the Madrasa compound
at which the appellant and his supporter Shri Neog spoke.
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The theme was the same except the ruddy embroidery that if
anyone voted for the communist candidate everything would be
bloodied like the communist flag. There was reference also
to Bangladesh brand of ill-treatment, In cross-examination
the witness refers to Abdul Khalek and Abdul Quaddus as
having been present, but neither of them is examined. It is
surprising that till the poll was over this witness did not
divulge the threat of violence for getting votes to any one
and this strikes us as improbable remembering that the
witness is a headman of a village. The appellant as well as
Shri Neog have contradicted this version. R. Ws. 12 and 38
have also denied the holding of threats at that meeting. Of
course, their evidence by itself may not be compelling.
P. W. 9 speaks in the same strain as P. W. 6. So also P.
W. 14 who claims to be a Congressman while deposing anti-
Congress, not a surprising phenomenon in election case
evidence. It looks odd that this witness should say that
’excepting Shri Neog aforementioned, no other Hindu
participated in the meeting. Such an open threat is likely
to counter-productive in a predominantly Muslim area, parti-
cularly when we remember that the petitioner-respondent is
also a man of considerable influence. There is reference by
P. W. 14 to ’ some bustle in the meeting’, when the threat
was uttered ’but I cannot say whether it was one of approval
or disapproval’ says P. W. 14.
P. Ws. 7 and 8 have given evidence of domestic delivery of
the threat. Both of them speak to the visit at night of the
appellant and his revealing the change in the election rules
which would require thumb impression or signature to be
appended to the ballot paper and ’the further shock to those
who voted for the communist party that they would be shot
dead. The possible corroboration could have come only from
one Abdul Ghani and Isomuddin Master neither of whom is
examined by the petitioner but the latter figures as R. W.
28 to deny the story.
P. W. 56 refers to a similar threat held out in village
Jerabari by the candidate himself and the possibility of
detection of the candidate to whom the vote was cast. This
Homeopathic Doctor owns the presence of Sahed and Anwar but
neither of them has entered the witness box to corroborate
this case.
122
P. W. 58 was not even mentioned in the witnesses’ list
although he repeats the true-to-type case of threat. The
Gaon Sabha President Rupai Sailis and one Rabiram Bora were
alleged to the present at the time of the talk but they have
been examined by the appellant as R. Ws. 38 and 42 and
have denied the whole case of threat.
We have to remember in assessing the evidence of these
witnesses that the election petition has been blissfully
vague in regard to the particulars in support of the
averment of undue influence. More than one amendment was
sought and still neither the names of the persons nor of the
places so vital to induce credence and to show fairplay have
been given. We need hardly emphasize that one cannot pick
up witnesses en route and march ;them into the witness box
without running the risk of their apparently consistent
evidence from being disbelieved. After all we are dealing
with a quasi-criminal charge with serious consequences and
all necessary particulars have to be furnished in the
election petition. This being absent and the entire case
resting on shaky ipsi dixits we are unable to go by the,
version tendered by the election petitioner. The upshot of
the discussion is that we are far from satisfied about the
conclusive veracity of the case of undue influence and have
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therefore to find against the election petitioner
respondent.
Before taking leave of this part of the case it is necessary
to emphasise that the wisdom of the law of pleadings bearing
on election petitions has set down strict provisions to
ensure that fairness of opportunity is given in fastening
corrupt practices on the successful candidate. Section 83
significantly insists on all material facts and full
particulars being set forth at the earliest stage. To avoid
this duty is to play foul and we as umpires will not easily
reckon the goal scored. The rules of the game, in this
decisive democratic game where power corrupts even the
techniques of proof, will be enforced in Court. Precedants
are a profusion on this issue and the law is so settled that
we do not cite case-law in support. Here, three amendments
were sought and made, of the petition by the election
petitioner and objection about bold, vague, twilight
allegations were urged by the opposing party. And yet the
election petition remains bereft of specificity on vital
matters. The penalty will, in any case, be a stricter, more
sceptical scrutiny of the testimony brought by the
delinquent party. We frown on tactics of keeping material
particulars up one’s sleeves. That is neither cricket nor
court process. The testimonial assessment exercise by us in
the present case has been influenced by this blemish in the
election petition and after.
The last surviving corrupt practice of bribery may now be
examined from the legal and factual angle. The former,
simpliutic on the surface,, is blurred and beffling in
certain practical situations. Briefly, the charge is that
the appellant offered to P. W. 12, Jabber Munshi, a mulla or
mosque functionary with religious influence over his fold,
the expressed object being ’to collect votes’ for him. In
evidence, the mulla crystallised the case thus :
"The respondent No. 1 approached me and said
that he wanted to have a talk with me. Then
respondent No. 1 took me inside one of the
rooms of Johuruddin’s house and
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there offered me Rs. 2,000/- if I worked for
him in the election in the two villages of
which I happened to be the Mulla. I turned
down the proposal since it was unbecoming of
me and then came out of the room."
A critical appraisal of the evidence on this part of the
case has lead us to conclude that the facts deposed to are
altogether untrustworthy. Facts failing, law becomes
otiose. Even so, having regard to the importance of the
subject and largely out of deference to the counsel who have
addressed long arguments and highlighted the High Court’s
reasons on the point we think it proper to express our
opinion. For an incisive understanding of the import of s.
123 (1) we Will assume the facts to be correct. Precision
in thought being essential, we will set out the provision
itself :
"123. Corrupt practices.-The following shall
be deemed to be corrupt practices for the
purposes of this Act
(1) ’Bribery, that is to say,-
(A) any gift, offer or promise by a
candidate or his agent or by any other person
with the consent of a candidate or his
election agent of any gratification, to any
person, whomsoever, with the object, directly
or indirectly, of inducing-
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(a) a person to stand or not to stand as, or
to withdraw or not to withdraw from being a
candidate at an election, or
(b) an elector to vote or refrain from
voting at an election, or as reward to-
(i) a person for having so stood or not
stood, or for having withdrawn or not having
withdrawn his candidature; or
(ii) an elector for having voted or refrained
from voting;
(B) the receipt of, or agreement to receive,
any gratification, whether as a motive or a
reward-
(a) by a person for standing or not standing
as, or for withdrawing or not withdrawing from
being, a candidate; or
(b) by any person whomsoever for himself or
any other person for voting or refraining from
voting or inducing or attempting to induce any
elector to vote or refrain from voting, or any
candidate to withdraw or not to withdraw his
candidature.
Explanation.-for the purposes of this clause
the term gratification’ is not restricted to
pecuniary gratification or gratifications
estimable in money and it includes all forms
of entertainment and all forms of employment
for reward but it does not include the payment
of any expenses bona fide incurred at, or for
the purpose of, any election and duly entered
in the account of election expenses referred
to in section 75."
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One thing is clear. A mere offer is enough, given the other
ingredients. An attempt to commit crime is as bad as the
commission, if proved infallibly. To pay money ’to work for
him in the election’ does it become illegal gratification
of the corrupt species ? We may slur over the minor gap
between ’collecting’ votes as Pleaded and working’ for the
candidate, as deposed, since what counts is the evidence. A
break down of the sub-section yields the following com-
ponents :
(i) An offer or promise by the candidate
etc., of gratification to any person,
(ii) The object must be directly or
indirectly to induce an elector to vote or not
to vote at an election.
The purpose of the provision is to ensure poll purity and
exclusion of pollution by money power. All elections
involve expenses and that is why s. 77 sets a ceiling on
such expenses and impliedly contemplates expenditure on
election work. Such lay-out of money may be for legitimate
items. Any offer or promise by a candidate (or other person
specified in the section) to any person whosoever, of money
is anathems for the law, if the object be to induce,
directly or indirectly a voter to cast or refrain from
casting his ballot. Here there is the offer by the
candidate to a person viz., P. W. 12. What is the specific
object ? To make him work for the candidate, viz., to
persuade voters to support the paying candidate. There is a
legal line to be drawn here, which is fine but real. The
payment of offer as the case may be, may be to any person,
but it must be linked with the object predicated in the
section. If the payment is to induce an elector to vote, be
it direct or vicarious it is corrupt. If it is any other
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oblique object, it may be evil, not necessarily corrupt in
the eye of the law. The language of the provision can be
stretched wide to cover even payments to do propaganda or
print posters or hire transport since they are calculated to
induce voters to vote. A narrow connotation is conceivable
where only payments to the voters is hit by the legal stick.
A pragmatic construction, inhibiting corruption but
permitting electioneering expense is the right one, although
many tricky projects may get through the legal mashes which
law cannot help and only public vigilance can arrest.
Reading s. 77, dealing with the ceiling on election expenses
and s. 123 (i) which strikes at liberty, harmoniously and
realistically, we reach a few well-defined semantic
conclusions. To widen is to be idealists and ineffectual.
To shrink is to fail in the goal of the law. Mr. Garg
rightly emphasised that in the light of the precedents of
this Court what the law aims at is a blow on the purchase of
the franchise by direct or indirect methods. You may buy
influence of important persons which is bad in morality but
not yet in law. You may over-spend to create enthusiasm to
the workers which produces professional electioneers waiting
for the season to please candidates and parties. This
vitiates the smooth wheels of the democratic process but
cannot be stanched by the tourniquet of the law. The
rulings in
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Ghasi Ram v. Dal Singh (1) and the one at Om Prabha Jain v.
A bnash Chand(2) have been cited at the bar and they make
out that the vice is the bargain for the ballot and what is
obnoxious in the quid pro qua for the vote, however
accomplish.
If the candidate pays money to a V.I.P. of the locality to
use his good offices and canvass votes for him, it is a
borderline case, but if the money is paid as consideration
for votes promised to be secured by him using his sway, it
is bribery even though indirectly exercised. If the Mulla
had been paid the money striking a bargain for getting the
votes in his ambit of influence, it is electoral corruption.
On the other hand, if it is money received for the purpose
of organising effectively the election campaign by hiring
workers, going round to places in car, meeting people and
persuading them to vote for the candidate, it is proper
election expense. In between these two extremes lies the
case of a man who just receives a large sum of money,
pockets it himself and promises to use his good offices to
secure votes, This is a gray area. We are not called upon
to pronounce on it in this case. We have no doubt that a
mammoth election campaign cannot be carried on without
engaging a number of workers of a hierarchical sort. Many
of them may be man commanding influence through goodwill in
the locality. Some of them may be village V.I.Ps. social or
religious, our country being still feudal in many rural
areas. The touchstone in all these cases of payment or
gratification is to, find out whether the money is paid in
reasonable measure for work to be done or services to be
rendered. Secondly, whether the services so offered amount
to a bargain for getting votes or merely to do propaganda or
to persuade voters to vote for the candidate, it being left
to the voters not to respond to the election. It is a plain
case if a voter is paid for his vote. It is direct. It is
equally plain if the payment is made to a close relation as
inducement for the vote. The same is the case if it is paid
to a local chief on the understanding that he will get
polled the votes in his pocket borough, in consideration for
the payment. The crucial point is the nexus between the
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gratification and the votes, one being the consideration for
the other, direct or indirect. Such being the contours of
the corrupt practice of bribery, let us consider the facts
of the case bearing on this question.
The allegations are that the appellant and RW 33 called PW
12 the Mulla to the house of RW 33 at Dhing Bazar on
February 18, 1972 and offered to pay Rs. 2,000/- for
collecting votes. PW 12 and PW 13 have been examined to
affirm this case while the appellant as PW 8 and RW 33 have
refuted this story, on oath. The version is inherently
improbable as it is unlikely that such a corrupt offer would
be made to a comparative stranger by one conversant with
election proprieties. It is particularly noteworthy that RW
33 has no special influence over this Mulla and his house
need not have been the venue for the offer of bribe. Sahed
Ali, P. W. 13 is also not shown to have any closeness to PW
12 and why he should get mixed up with this matter is not
easily understandable. PW 12 has sworn that he had neither
worked nor canvassed for any candidate at
(1) [1963] 3 S.C. R.102,110. (2) [1968]3 S.C. R.111, 116.
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any time and could not have been therefore pressured this
time by the appellant who is likely to know the implications
of this dangerous move himself being an Advocate. Before
tile poll, P. W. 12 did not mention this matter to anyone
but it was divulged only a fortnight after the election.
The graphic description of the appellant not producing the
cash along with the offer but suggestively opening his long
cost without showing the money is more dramatic than true.
P. W. 13 who corroborates in part the Mulla also is too
virtue to prevail upon Jabbar Munshi to work for the
appellant, as requested by the latter, as his evidence runs.
This witness would say that the occurrence was around 10-30
a.m., but we have the evidence of Shri Moinul Haque
Chowdhury who came in a helicopter to address a public
meeting on behalf of the appellant that he and the appellant
together landed in the place about mid-day. If really the
appellant was keen on hiring the services of the Mulla at a
fancy price he would have put more pressure on PW 13 than is
discernible in the dicerent answer of the witness :
"Respondent No. 1 asked me this much that I
should previal upon Jabbar Munshi to accept
the money and work for him. He did not ask me
anything more though be told me that he had
offered, Rs. 2,000/- to Jabbar."
In this context it must be stated that in the original
election petition the source of information regarding the
allegation contained in section C of Part I that bribery of
Rs. 2,000/- was not mentioned. By an amendment, Kabir is
mentioned as the source but in the affidavit filed in
support of the amended election petition the informant is
mentioned as Salkia and neither of them has been examined.
Nor are-we told how they came to know about the secret
offer. The overall view of the evidence bearing on this
aspect leaves us in grave doubt as to whether the Mulla had
met the appellant at all. We have already held that the
facts as spoken to by the former, even if true do not come
within the relevant clause [s. 123(1)].
The evidence is purely parol, the accusation one of
reprehensible corruption and so, however attractive an offer
of payment to a Mulla for Muslim voters being influenced may
appear to be, the court has to be circumspect to a degree.
In our country where marshy areas of religious fanticism
survive into late twentieth century politics and candidates,
regardless of secular and even revolutionary faiths, succumb
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to methods of vote-catching inconsistent with democratic
scruples, approaching Mullas, priests and pujaris may not be
unfamiliar. But this vicious proclivity cannot be combated
by courts except when (a) clinching proof is adduced and (b)
the facts come within the clutches of the legal definition.
After all, poll purity is preserved not by law alone but by
a critical electoral climate.
The mere word of the Mulla, denied by the appellant, is
altogether insufficient to bring home the guilt,
corroborated though it is by P. W. 13.
Summing up our conclusions, we hold none of the grounds
pressed have been proved to the point of judicial certitude.
All that
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judges, fallible instruments, and cacooned by the record can
hold in all conscience is that by human insight and
judicialised procedures, with all the limitations they in
practice imply, the truth is what our lights tell us it is,
no more.
The appeal is allowed and the election petition dismissed
with costs throughout.
V.P.S. Appeal allowed.
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