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TMI Blog1970 (9) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... The nominations of both these petitioners were rejected by the Returning Officer. Election Petition No. 4 was filed by Shri N. Sri Rama Reddy, M.P., and twelve other electors, all members of Parliament. Election Petition No. 5 was filed by Shri Abdul Ghani Dar, M.P., and nine other members of Parliament and eight members of Legislative Assemblies of Haryana, Madhya, Pradesh and Bihar. Shri V.V. Giri is the sole respondent in Election Petitions Nos. 1, 4 and 5 while in Election Petition No. 3 he was impleaded as respondent No. 2 and Union of India, through the Election Commission, was impleaded as respondent No. 1. 3. After the sad demise of the then President of India, Dr. Zakir Hussain, on May 3, 1969, the Election Commission issued a notification under Section 4 of the Act appointing July 24, 1969, as the last date for filing the nomination papers, July 26, 1969, as the date for scrutiny of the nomination papers, and July 29, 1969, as the last date for withdrawal of nomination papers. Polling was fixed for August 16, 1969, 24 nomination papers were filed before the Returning Officer. On scrutiny which took place on July 26, 1969, the Returning Officer rejected 9 nomination pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on this point when we come to deal with the issues arising out of that allegation. 6. We have read the judgment prepared by Vashishtha Bhargava, J. He has dealt fully with the issues arising out of the allegations other than the allegation of undue influence and, as we agree with him, it is not necessary to add anything to his reasoning. We may, however, reproduce the issues and the conclusions thereon. Issue No. 5 of Election Petitions Nos. 1, 4 and 5/1969 E.P. No. 1 : Whether Section 21 of the Act is ultra vires the Constitution of India? 7. E.P. Nos. : Whether Part III and Section 21 of the Act are ultra vires the Constitution of India? 8. We hold that Part III and Section 21 of the Act are not ultra vires the Constitution of India. 9. Issue No. 6 of Election Petitions Nos. 1, 4 and 5/69 E.P. Nos. 1, 4 5 : Whether Rules 4 and 6(3)(e) of the Rules are ultra vires the Constitution and the rule-making power of the Central Government? 10. We hold that Rule 4(3) of the Rules was validly made by the Government in exercise of its rule-making power under Section 21 of the Act. That rule being valid, Rule 6(3)(e) of the Rules, which is consequential, must a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of Rajbhoj Pandurang Nathuji, Babu Lal Mag and Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8(b) and 10(a), (b) and (c) of the petition? E.P. No. 5 : Whether the nomination papers of Rajbhoj Pandurang Nathuji, Santosh Singh Kachhwaha, Babu Lal Mag and Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8(c) and 11 of the petition? 16. We hold that the nomination paper of Shri Rajbhoj Pandurang Nathuji was validly accepted, the certified copy of the electoral roil filed by him was a valid and a good copy. We further hold that the nomination paper of Shri Santosh Singh Kachhwaha was not invalid even though he signed his nomination paper before his seconder had signed it. His nomination paper, therefore, was rightly accepted. We further hold that the nomination paper of Shri Babu Lal Mag was not invalid even though he had signed his nomination paper before it was signed by the proposer and the seconder. His nomination paper was, therefore, rightly accepted. We further hold that the nomination paper of Shri Ram Dulare Tripathi was not invalid. The disputed signatures have not been shown to be not genuine. 17. Issue No. 4 in E.P. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t believed the statements made therein as true or had reason to believe them to be true? (iv) Whether the pamphlet was published with the object of prejudicing the prospects of the election of Sanjiva Reddy and furthering the prospects of the election of the respondent? (v) Whether the election of the respondent is liable to be declared void on this ground? E.P. No. 5 : Issue No. 8 in Election Petition No. 5 is substantially the same except that the annexure in Petition No. 5 is Annexure A-38 and not Annexure A-3. 22. On the first part of Issue No. 8 we hold that the petitioners are not entitled to dispute the election of the respondent on grounds other than those mentioned in Section 8 of the Act. The other part of the issues, as a consequence, do not arise at all. 23. Issues Nos. 9, 9A and 10 in E.P. No. 5/1969 9. Whether the respondent or any other person with his connivance committed the offence of bribery as alleged in paragraph 15 of the petition? 9A. Whether the allegations in para 15 constitute bribery within the meaning of the Act? 10. Whether the offence of bribery was committed at the election by any other person without the connivance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e between the electors of the Congress Party and all electors in general. In brief, the history of the dispute between the two sections of the party, which we will refer to as Congress (R) led by Shri Jagjivan Ram and Congress (O) led by Shri Nijalingappa, was set out. We need not extract the pleadings on this part of the case in detail because we will briefly refer to the background of the dispute and the facts as proved before us. But we may mention that this Court is not concerned with the merits of the dispute between the two sections of the Congress Party and we will consider this matter only insofar as it throws any light on the question of the offence of undue influence. 28. In paragraph 13(b)(ii) it was alleged that Shri Nijalingappa, Shri S.K. Patil, Shri K. Kamaraj, Shri Morarji Desai and Shri Y.B. Chavan, electors at the election, were threatened by Smt. Indira Gandhi on July 12, 1969, at Bangalore with serious consequences with the object of unduly influencing these people for changing their decision to nominate Shri N. Sanjiva Reddy as their candidate. The threat given was repeated subsequently between 12th and 16th July; 1969 a number of times. By order dated Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, Shri Abdul Ghani Dar, wrote a letter to Shri V.V. Giri, copy of which was endorsed to the Prime Minister and Shri Humayun Kabir. In this letter the petitioner requested Shri V.V. Giri, to condemn those who had published this pamphlet and make a public statement dissociating himself from and denouncing the publishers of the pamphlet but Shri V.V. Giri failed to do so. 32. In sub-para 12(b)(vi) it was alleged that this low level pamphlet had evoked great public and press criticism and it came out openly in the press that such low level pamphlets were being distributed in the election campaign. It was further alleged that even news items regarding this pamphlet appeared in almost all leading newspapers of the country. In spite of this, the returned candidate, who was repeatedly harping upon and asking for votes in the name of character, integrity, etc., failed to dissociate himself from the pamphlet or even to condemn the same. 33. It was alleged in sub-para (viii) that the language of the pamphlet and the laudatory references to Smt. Indira Gandhi and her followers themselves point to the origin of the pamphlet. 34. In sub-para (ix) of para 13(b) reference was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable to his own influence or persuasion. 37. In para 13(c)(ii) reference was made to Shri Yunus Saleem, Deputy Law Minister, obtaining signatures of the members of Rajya Sabha on some paper which in effect amounted to pledging their support for Shri V.V. Giri, the returned candidate, and what happened in he Rajya Sabha in connection with that incident. 38. In sub-para 13(c)(iii) it is alleged that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem threatened the Muslim voters that Shri Sanjiva Reddy was in fact a candidate of the Jan Sangh party and if he was elected the fate of the Muslim community in India will be in danger and in constant threat of extinction. An instance was given when Shri Yunus Saleem met Shri Abdul Ghani Dar, petitioner, and talked to him in the same terms. Further, reference was made to a letter issued by Shri Abdul Ghani Dar to all Muslim electors describing such a threat as baseless and mischievous. In sub-para (iv) reference was made to a letter written by Shri Abdul Ghani Dar to the press in this connection. 39. In paras 13(c)(v) and (vi) reference was made to a threat issued to the members of the Legislative Assembly of Bengal that if Shri Sanji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Abdul Ghani Dar, as alleged. 45. In reply to sub-paras (v) and (vi) of para 13(b) the respondent denied that he had received any letter from Shri Abdul Ghani Dar. He stated that the only letter he received from Shri Abdul Ghani Dar was a letter dated July 24, 1969, in reply to respondent's circular letter to the electors seeking their support. He further denied that he ever received a copy of the alleged pamphlet. He further stated : I say that in fact I saw the letter of August 11, 1969 of Shri Dar and the pamphlet attached as annexure to the Petition only after I received the copy of the Election Petition and the annexures. I entirely repudiate that I had anything to do with the pamphlet before its publication or after its publication. I also deny that any of my workers or supporters had anything to do with it, with my knowledge or connivance. 46. In reply to sub-para (viii) of para 13 (b) the respondent denied that persons alleged to be his workers and supporters were distributing the pamphlet and were telling voters not to vote for Shri Reddy, as alleged. He characterised both these allegations as baseless and false. In reply to sub-para (ix) he said that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Hall of Parliament? (4) Does the distribution of the pamphlet by post and or in the Central Hall constitute undue influence under Section 18 of the Act? (5) Was this pamphlet distributed with the connivance of the returned candidate? (6) Whether the offence of undue influence was committed by others without his connivance, and if so, whether it had material effect on the result of the election ? 54. Let us first address ourselves to the question of interpretation of Section 18. We have read the views expressed by Vashishtha Bhargava, J., and Miner J., but with respect we differ from them. Vashishtha Bhargava, J., has held that the distribution of the pamphlet amounted to an offence under Section 171G, I.P.C., and not under Section 171C, I.P.C. According to Mitter, J., distribution of the pamphlet by post and in the Central Hall does not by itself fall within Section 18 of the Presidential and Vice-Presidential Election Act, 1952. According to him, before any publication of a defamatory matter relating to a candidate can be treated as commission of the offence of undue influence there must be some overt act in addition to the mere publication-some attempt or pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection has to be set aside. Though undue influence for purposes of that Act has the same meaning as in the present Act, that section does not go as far as Section 18 of the present Act so as to provide that even if it is committed by a third party, that is to say, not an election agent nor a person with the consent of the returned candidate, the election would still be declared to be void provided of course that it has been materially affected by such undue influence. From the fact that both these Acts were enacted by the same Legislature and Act 31 of 1952 was passed after the Representation of the People Act was passed, it is clear that Parliament deliberately made Section 18 stricter than the Representation of the People Act, firstly, by using the words connivance of the returned candidate instead of the words his consent , and secondly, by including undue influence committed even by a stranger, having nothing to do with the returned candidate, as a ground for declaring the election to be void, the only condition in respect of such an act being that it should have materially affected the election. The object of doing so is obvious, namely that Parliament wanted to ensure tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which is either imprisonment upto one year or with fine or both. Section 171G provides : Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate shall be punished with fine, 58. The electoral right of an elector, as defined in Section 171A(b) of the Indian Penal Code, means the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. It was said that the right to vote envisages two stages; the first stage is when the elector goes through the mental process of weighing the merits and demerits of the candidates and then making his choice and the second stage is when having made his choice he goes to cast his vote in favour of the candidate of his choice. The argument was that the language of Section 171C suggests that undue influence comes in at the second and not at the first stage, and therefore, it can only be by way of some act which impedes or obstructs the ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mere exercise of a legal right can interfere with an electoral right, and therefore it provides that if there is no intention to interfere with the electoral right it shall not be deemed to be interference within the meaning of this section. At what stage would a declaration of public policy or a promise of public action act and tend to interfere? Surely only at the stage when a voter is trying to make up his mind as to which candidate he would support. If a declaration of public policy or a promise of public action appeals to him, his mind would decide in favour of the candidate who is propounding the public policy or promising a public action. Having made up his mind he would then go and vote and the declaration of public policy having had its effect it would no longer have any effect on the physical final act of casting his vote. 61. Sub-section (3) further proceeds on the basis that the expression free exercise of his electoral right does not mean that a voter is not to be influenced. This expression has to be read in the context of an election in a democratic society and the candidates and their supporters must naturally be allowed to canvass support by all legal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of undue influence punishable under Section 171F. The false statement may be of such virulent, vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their being affected or attempted to be affected by the maker or the publisher of such a statement. Therefore, it is the degree of gravity of the allegation which will be the determining factor in deciding whether it falls under Section 171C or Section 171G. If the allegation, though false and relating to a candidate's personal character or conduct, made with the intent to affect the result of an election does not amount to interference or attempt at such interference the offence would be the lesser one. If, on the other hand it amounts to interference or an attempt to interfere it would be the graver offence under Section 171F read with Section 171C. 65. We are also supported in our view by a number of decisions given on similar statutory provisions. The Government of India (Provincial Elections) Corrupt Practices and Election Petitions Order, 1936, contains the following relevant provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way, directly or indirectly, interfere with the free exercise of any electoral right, and it is also true that the definition extends not only to actual interference but even to an attempt to interference. But on the facts the Tribunal observed : There is no proper evidence of actual interference before us, and as regards the attempt, we have to see if there was the deliberate intent to mislead voters and thus make them exercise their electoral right under the wrong impression that the respondent had been set up as a candidate by the Muslim League. 68. It was argued before the Commission that threat or element of compulsion was an essential ingredient of the corrupt practice of undue influence. The Commission observed : We cannot, however find any basis in the definition of undue influence for the proposition that unless M. Zaffar Ali Khan threatened, or compelled the voters to vote in a particular manner, the offence of undue influence was not complete. The definition of undue influence is very wide in its terms and includes four different forms of interference viz., direct interference, indirect interference, direct attempt to interfere and indirect attempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted corrupt practice of undue influence by publishing a booklet entitled why should you vote for me where the picture of a dead body with the objectionable caption appeared, and it was stated that the individual had died of police firing and that the Congress had killed him. Barman, J., held that it constituted undue influence while Rao, J., held that it did not. There being difference of opinion, the case went to Das, J., who held that it did not amount to undue influence. Das, J., observed regarding Section 123(2) of the Representation of People Act that there may be some element of mental compulsion, but not necessarily a physical one or a threat actually held out by the person who interferes or attempts to interfere. We are not concerned with the question whether the booklet in that case constituted undue influence or not but only with the interpretation of the section. Barman, J., observed : A voter must be able to freely exercise his electoral fight. He must be a free agent. All influences are not necessarily undue or unlawful. Legitimate exercise of influence by a political party or association or even an individual should not be confused with undue influence. Persuasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt at interference with the free exercise of any electoral right begins. That is a matter to be determined in each case; but there can be no doubt that if what is done is merely canvassing it would not be undue influence. As Sub-section (3) of Section 171C shows, the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence. 72. It is not necessary to consider the provisions of the Indian Contract Act or the English Law on the subject because we have a special definition given by Parliament. 73. The question that then arises is ; Whether the publication of this pamphlet can be said to constitute undue influence? We have no doubt that it does fall within that definition. It is not necessary to reproduce the pamphlet in detail as we shall only be giving further publicity to this most objectionable pamphlet. The pamphlet, after giving various fictitious incidents of sexual immorality, describes Shri N. Sanjiva Reddy a debauch without any sense of shame or morality. Then the pamphlet asks : Should the name of the Congress be lowered to such depths that this moral leper, this depraved man should be set up as the Congres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings of the Faridabad session and the Bangalore Session, and the circumstances attending Shri Morarji Desai's resignation. Further, the whole of the correspondence between the Prime Minister and Shri Nijalingappa, and between Shri Jagjivan Ram and Shri Fakhruddin Ali Ahmed and Shri Nijalingappa between August 9 and August 18 was exhibited in the case. But as it is not necessary for us to determine the exact genesis of the dispute we will only take note of the fact that both the congress parties were opposed to each other at the time of the election and had different views on certain economic issues, and the Presidential election became a vital issue between them. In view of the above we will have to judge the evidence given by the witnesses with care, and wherever possible seek corroboration of the evidence from circumstances or other independent evidence. 78. We may now deal with the question whether it is possible to find out who printed or published the pamphlet and whether it was distributed by post and/or in the Central Hall of Parliament. Regarding the authorship of the pamphlet no evidence has been led by the petitioners but it was contended on their behalf that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve it to two or three people; he came and gave one pamphlet to each. Shri Gupta produced copy of a letter dated August 14, 1969, which he had written to the Chief Election Commissioner in this connection. In this letter-Ext. P 37-it is inter alia, stated : Moreover, pamphlets are being distributed in which vulgar charges have been leveled against another candidate for this high office. Character assassination is going on. I am sending a copy of the pamphlet in which vulgar and filthy attacks have been made against Shri N. Sanjiva Reddy. This amounts to corrupt practice under the Election Law. These pamphlets are being distributed by the supporters of the Prime Minister. Shri M. Yunus Saleem, a Minister in her Cabinet and some others are very active in it. (emphasis supplied) 81. The Chief Election Commissioner acknowledged this letter by his d.o. letter-Ext. P 16-dated August 14, 1969. This letter certainly corroborates Shri Kanwar Lal Gupta's statement that Shri Yunus Saleem was distributing this pamphlet but it would be noted that in the letter to the Election Commissioner there is no mention of the Central Hall of Parliament. We will discuss this letter in detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence. But we will bear the fact in mind while appreciating their evidence. 86. Shri Mohan Lal Gautam, M.P., P.W. 27, stated that he had received a copy of this pamphlet in the Central Hall of Parliament from Shri Shashi Bhushan and he saw it being distributed to other members also. In cross-examination it was put to him that his impression that Shri Shashi Bhushan gave it to him was not correct and he replied : My recollection is quite correct because I came here on the 14th August and I had only one day here-15th was holiday and 16th was polling day, so there cannot be any confusion. We may mention that he was elected on the 13 of August, 1969, to the Rajya Sabha and took oath on August 14, 1969. 87. Shri C.D. Pande, M.P., P.W. 29, is one of the petitioners in Election Petition No. 4. He deposed that when he was sitting in the Central Hall he saw the pamphlet being distributed by certain members; he could recollect two or three and he recollected Shri Shashi Bhushan, Shri Krishna Kant and Shri Yunus Saleem, although they did not give him a copy of the pamphlet. In cross-examination he stuck to the position and said that they did not give the pamphlet to him because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et to his leader, Shri Atal Behari Bajpai, although he did not ask Shri Bajpai whether what was stated in the pamphlet was true. He further said in cross-examination that he did not meet Shri Abdul Ghani Dar or Shri Sri Rama Reddy. 90. Smt. Pushpabehn Mehta, M.P., P.W. 36, stated that some members including Shri Shashi Bhushan, were distributing the pamphlet in the Central Hall of the Parliament and they were discussing. She stated in cross-examination that she did not report to the Security Officer. In cross-examination she stuck to her position that Shri Shashi Bhushan and Shri Krishan Kant were distributing the pamphlet, She had not talked to Shri Sri Rama Reddy or Shri Abdul Ghani Dar or any other person on their behalf before giving evidence. She stated that there were many persons in the Central Hall and they were sitting in groups and distributing, but she did not mention Shri Jagjivan Ram's name in particular. In the particulars supplied by Shri Abdul Ghani Dar it was stated that she received the pamphlet in the Central Hall of Parliament and Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan and Shri Mohan Dharia distributed the pamphlet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.W. 53, deposed that Shri Shashi Bhushan gave the pamphlet to him in the Central Hall of Parliament and the Young Turks were distributing the pamphlet. Among the Young Turks he named Shri Mohan Dharia, Shri Krishan Kant, Shri Arjun Arora, Shri Shashi Bhushan, Shri Chandra Shekhar and others. It was brought out in cross-examination that he was one of the signatories to a letter, appearing in the issue of National Herald dated August 14, 1969-Ext. R-7-written to the Congress President on August 13, 1969, demanding appropriate action against those who did not respect the party mandate in regard to the Presidential election. He stated that there was no point in complaining about the distribution of the pamphlet in the Central Hall because responsible persons were distributing it. His name appears in the particulars as one of the persons who had received the pamphlet in the Central Hall of Parliament and that Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan and Shri Mohan Dharia distributed the pamphlet to him among others. 94. Shri N. Sri Rama Reddy, M.P., P.W. 54, one of the petitioners, says that he received the pamphlet both in the Central Hall as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he political reasons in his evidence, one reason being that Smt. Jayabehn was a member of the Birla lobby which was very strong in Parliament and which opposed him strongly in connection with the hunger strike he undertook at the Birla Bhavan in 1968. Regarding Shri N.N. Patel, Shri Shashi Bhushan said that he did not know him and his evidence was incorrect. He said : When I don't know him how can he talk to me. Regarding Shri Mohan Lal Gautam he said that his evidence was wrong and he was a member of the Congress Syndicate and that was the reason why he deposed against the witness. Regarding the evidence of Shri Pande, the reason he gave was that at the time of the hunger strike at Birla House Shri C.D. Pande moved about in the Parliament House Central Hall with a 'flag' on behalf of Birlas whose 'flag', symbolically speaking, was permitted in the Parliament. He characterised the statement of Shri N.N. Patel about the distribution of the pamphlet as being without any basis and the statement of Shri D.N. Deb as quite wrong. According to him, Shri D.N. Deb spoke falsely against him because he (Shri Deb) was a prince (Raja) and the witness had said several tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shah, Shri Sri Rama Reddy, Shri Patil Puttappa, Shri N.N. Patel, Shri D.N. Deb, Shri Mohan Lal Gautam. Shri H.C. Kachwai and Smt. Pushpabehn Mehta, and also no personal enmity with Shri Kanwar Lal Gupta but he had only political enmity. To the question : Do you consider that whoever opposed you politically will try to involve you in this kind of work, i.e., distribution of pamphlet, etc.? he replied : They have involved me. Therefore I think so. The proof is there. In cross-examination he produced a copy of the Lok Sabha debate, dated December 5, 1967, to show the enmity between him and Shri Kanwar Lal Gupta. There was some discussion about Shri Gupta's alleged brother-we say 'alleged' because the petitioner's counsel tried to suggest that Shri V.M. Gupta was not Shri K.L. Gupta's brother. The witness admitted that he was against Shri Sanjiva Reddy's nomination from the very beginning. It was suggested to him that he was responsible for printing and publishing this pamphlet and he replied : I would have committed suicide if I had brought out this pamphlet. In answer to a Court question is it your evidence that all this discussion about the pamphlet was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on August 11, 1969, from Shri Jagjivan Ram. 101. Shri Mahadevappa Rampure, P.W. 35, M.P., deposed that he received the pamphlet in the Central Hall from Shri Yunus Saleem and saw him distributing it. He further says that Shri Yunus Saleem said : You can go through this pamphlet. You will got enough information about the contesting candidates. He stated that he received information about the 12th February that he would have to give evidence and before that he did not have any conversation either with Shri Abdul Ghani Dar or Shri Sri Rama Reddy. He admitted that he did not complain to the Security Officer about the distribution. He could not say to whom else Shri Yunus Saleem distributed the pamphlet. His name does not figure in the particulars supplied by Shri Abdul Ghani Dar or by Shri Sri Rama Reddy. 102. Shri D.S. Raju, M.P., P.W. 49, stated that he received one copy of the pamphlet in his house and another copy in the Central Hall of the Parliament and if he could trust his memory, it was Shri Yunus Saleem who passed it oh to him. He admitted that when Smt. Gandhi became the Prime Minister she did not continue him as one of the Ministers, and that he belonged to the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Shri Abdul Ghani Dar was confronted with this statement and asked about the presence of a number of members of Parliament. He replied : I have even now not denied that where I was taken do other members were present. In reply to another question he said both his statements, his statement in sub-para 13(b)(iv) and what he stated in Court, were correct. But in the particulars it is stated mat Shri Yunus Saleem, Shri Shashi Bhushan and Shri Krishan Kant distributed the said pamphlet to the witness. 105. These particulars were given on February 7, 1970, and his evidence was taken on March 5, 1970. If his evidence in Court is true, he clearly gave false particulars on February 7, 1970. It is further evident that both his statement in sub-para 13(b)(iv) and his statement in Court cannot be true. It seems to us that Shri Abdul Ghani Dar gave the particulars more by guess work than after having ascertained them from the witnesses or persons to whom the witnesses had spoken. We have no doubt that the verification of the affidavit giving the particulars was false in this respect. 106. Shri M. Yunus Saleem, M.P., R.W. 51, then Union Deputy Minister of Law, stated that he had not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hani Dar had attacked Shri Yunus Saleem. The witness admitted that he was an active supporter of Shri V.V. Giri. He further stated that Shri Shashi Bhushan was also an active supporter. He further admitted that he was supporting the move for freedom of vote which implied freedom to vote against the official candidate. He further admitted that he was one of those persons who was not very happy from the very beginning at the way the official candidate had been selected by the Parliamentary Board. He also deposed that he never saw Shri Giri during the election period. He characterised as absolutely wrong and incorrect that he was in constant touch with Shri V.V. Giri. He further deposed that Shri Naidu and Shri Sanjiva Reddy were personal friends and Shri Naidu was canvassing for Shri Sanjiva Reddy in the Central Hall. He denied the suggestion that he was carrying the pamphlets with him. In answer to the question : You did not show those papers to Mr. Raj Narain because you were carrying pamphlets with you and that would have exposed you further? , he replied : It is incorrect and contrary to the proceedings of the Rajya Sabha. To the question : Mr. Kanwar Lal Gupta moved a motion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of distribution by Shri Krishan Kant. In the particulars it is stated that Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan and Shri Mohan Dharia had distributed the pamphlet to members of Parliament, including this witness. 111. Shri Krishan Kant, M.P., R.W. 32, in answer to the question : Will you please see this pamphlet? Have you ever seen this pamphlet before? stated; I am seeing it for the first time . In view of this statement, when confronted with the evidence of these witnesses he naturally characterised their evidence as atrocious lie, absolutely wrong etc. He, however, admitted that some people had talked to him about the pamphlet and told him that such a pamphlet using some filthy and derogatory language had been written. His immediate reaction then was that some enemy of Shri Giri had done it. He further stated that Shri K.R. Ganesh, M.P., talked to him about the pamphlet though not in detail. This talk must have been either in the lobby or in the Central Hall. He further stated that at the time Shri Ganesh talked to him he was the supporter of Shri Giri, and that he never met Shri V.V. Giri during the whole of the election. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alcutta on the 9th and 10th August. On the 11th morning he left Calcutta by plane for Patna and he was in Patna on the 11th, and on the 12th morning he was due to leave for Delhi but his plane was delayed and he reached Delhi sometime in the evening of the 12th. So, if he did distribute the pamphlet it must have been only on the 13th and 14th for he says that he did not go to Parliament on the 15th as it was a holiday. In cross-examination he said that he had no discussion about the pamphlet because no serious person would discuss such a thing. He only heard whisperings about the pamphlet. But even after coming to know about the whisperings he did not know that the pamphlet was in circulation. He characterised the suggestion that the pamphlet was prepared and published with his knowledge and after consultations with him as unfounded, incorrect, mischievous and scandalous. He admitted that he had demanded the resignation of the Congress President on August 14, 1969, but said that he demanded it on certain conditions. 115. The evidence of Shri Chandra Shekhar and of the other six members of Parliament, which we have extracted above, is conflicting and we will have to look for corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 'Young Turks' today condemned what they described as a move by the Syndicate in the Congress to forge an alliance with the Swatantra Party and the Jan Sangh. Mr. Chandra Shekhar, Mr. Mohan Dharia and Mr. Shanti Kothari, all MPs, expressed concern at the recent developments in New Delhi and pointed out that the Congress President's overtures to Jan Sangh and Swatantra leaders had deeper implications. In a joint statement, they supported the action of Mr. Jagjivan Ram and Mr. Fakhruddin Ali Ahmed, Union Ministers, in seeking clarifications in this regard from Mr. Nijalingappa. He replied that the despatch was correct but it was not his statement. He further said that on the 14th August there was a meeting of the MPs from Maharashtra and in that meeting he again had occasion to declare publicly that he stood for Shri Sanjiva Reddy in the Presidential election. He admitted that not only time he sign the requisition for calling the A.I.C.C. meeting for the Delhi Session but he was also one of the campaigners to have that meeting called. He denied seeing anybody discussing the pamphlet because he said that he was hardly there for more than one or two d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not appear in the particulars given by Shri Abdul Ghani Dar, though his name does appear in the particulars given by Shri Sri Rama Reddy. 123. On this evidence it would be difficult to hold that it has been, proved that Shri Amrit Nahata had distributed the pamphlet unless some corroboration is forthcoming. 124. This leaves us to deal with five other alleged distributors of pamphlets in the Central Hall. They have one thing in common. Only one witness in each case saw them distributing the pamphlet. Shri Jagat Narain, M.P., R.W. 25, was seen by Shri Sher Khan, P.W. 51, distributing the pamphlet with Shri Shashi Bhushan, and Shri Krishan Kant. Shri Jagat Narain deposed that he did not receive any pamphlet and saw it for the first tune in Court. He further says that his correspondent-the witness has connection with a newspaper 'Hind Samachar'-Shri Sun, who represented the paper from Delhi asked him in the first or second week of August whether he had received the pamphlet or not. He said that the evidence of Shri Sher Khan, M.P., was not true. It is difficult to believe that he never came across the pamphlet and saw it for the first time in Court. He was a journali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not receive the pamphlet by post or in the Central Hall and he did not see any distribution in the Central Hall or hear any discussion about this pamphlet during that period, although he used to go to the Central Hall practically every day after the Question hour and usually sat there for half an hour. 128. In the particulars given by Shri Abdul Ghani Dar it is stated that Shri Jagjivan Ram distributed the pamphlet to Shri Shiv Narain, M.P., and Shri Hukam Chand Kachwai, M.P. Shri Shiv Narain, P.W. 24, did not implicate him though he implicated others. Shri Jagjivan Ram was at the relevant time a Cabinet Minister and one of the important leaders of the Congress Party. If he was going to distribute the pamphlet it is difficult to believe that he would distribute it to one member of Parliament only and that too to a member belonging to the Jan Sangh. If he was going to distribute we would expect him to approach many members of Parliament and play a leading part. In the circumstances we cannot hold it proved that Shri Jagjivan Ram distributed the pamphlet in the Central Hall unless there is independent corroboration. 129. Shri Chandrajeet Yadav, M.P., R.W. 56, was seen by Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the pamphlet in the house and he saw the pamphlet being distributed in the Central Hall but did not receive it there and could not remember who was distributing. We will refer to his evidence regarding his alleged visit to Shri V.V. Giri later. 137. Shri Morarji Desai, M.P., P.W. 39, said that he received the pamphlet by post. He gave the following reasons for not doing anything : I could not do much about the pamphlet because one cannot merely deny it. One has to give facts. There are so many people mentioned anonymously in it. It would take a long time to enquire. Within two days it was not possible to find out anything to contradict this effectively. It would also mean that mere denial would give more prominence to it and make its circulation even more effective. He said that in his statement printed in the Hindustan Times of August 15, 1969-Ext. R 6-he indirectly referred to the pamphlet in the following sentence : All of us have at different times received our share of mud slinging, criticism or hostility, but the organisation has remained supreme over individuals and bodies and we have served it loyally and faithfully. 138. Shri S. Nijalingappa, P.W. 47, who was P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been made against Shri N. Sanjiva Reddy. This amounts to corrupt practice under the Election Law. These pamphlets are being distributed by the supporters of the Prime Minister. Shri M. Yunus Saleem, a Minister in her Cabinet and some others are very active in it. It is urged that the words moreover pamphlets are being distributed and these pamphlets are being distributed by the supporters of the Prime Minister. Shri M. Yunus Saleem, a Minister in her Cabinet and some others are very active in it and read together and properly interpreted mean that the pamphlets were being distributed in ways other than by post; it is nobody's case that Shri Yunus Saleem was active in distributing the pamphlet by post. On the respondent's side it is urged that the words are very active, in it have reference not to distribution of the pamphlet but to the signature campaign. This is also a possible interpretation but we are of the opinion that, in the context, the interpretation suggested by the petitioners is correct. If the respondent's interpretation were correct, we would expect some other word to be used than distributed and further the word being would not have been u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Hall, 14 other M.Ps. who have been examined on behalf of the respondent depose on the point of distribution of the pamphlet and discussion about it. These are Sarvshri Munshir Ahmed Khan, R.W. 2, M. Anandam, R.W. 4, R.K. Sinha, R.W. 8, Smt. Savitri Shyam, R.W. 11 Sarvshri Syed Ahmad Agha, R.W. 10, P.M. Syed, R.W. 13, M.V. Krishnappa, R.W. 22, Gulabrao Raghunathrao Patil, R.W. 29, P. Viswambharan, R.W. 39, I.K. Gujral, R.W. 40, Fakhruddin Ali Ahmed, R.W. 44, T.D. Kamble, R.W. 46, Raghu Ramiah, R.W. 47, and Tulsi Das, R.W. 50. All of them (except Shri Kamble, R.W. 46, who was away from Delhi from 8th to 14th August and did not go to the Central Hall on 15th August) said that they saw no distribution of the pamphlet in the Central Hall. Ten of them said that there was no discussion about the pamphlet in the Central Hall. One lady member said that there was no discussion in the Ladies Lounge. Two (R.W. 4 and R.W. 8) have admitted that there was discussion. Five admitted having received the pamphlet by post (R.W. 2, R.W. 3, R.W. 8, R.W. 11 and R.W. 13). It is not necessary to refer to their evidence in detail because it is possible that these witnesses did not see distribution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the pamphlet with friends about this. He, however, did not join the discussion but only overheard. He characterised the suggestion that he was one of the persons responsible for the publication and distribution of the pamphlet as 'wrong,' 'blasphemous', 'total lie'. He said that he never read the pamphlet but he knew about it because in the Central Hall friends had told him that this was a highly vulgar and spurious pamphlet. He further said that one or two journalists and probably Shri Balraj Madhok were discussing it and brought it to his notice. He further added that may be Justice Mulla was there He also said that to his knowledge the pamphlet reached members of Parliament by post. 150. These witnesses support the case of the petitioners at least to this extent that there was discussion about the pamphlet in the Central Hall. 151. In this connection the respondent's learned Counsel relied on the statements of Shri Mohanlal Sukhadia, Chief Minister Rajasthan, R.W. 42, and Shri V.P. Naik, Chief Minister Maharashtra, R.W. 43. The former deposed that he came to Delhi on the 12th or 13th August and many Congress M.P.s came to see him but n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the petitioners for the purpose of bringing home to the respondent knowledge about the pamphlet and its publication and his connection with it. The petitioners, however, have failed in their object, for, there is no evidence whatsoever to show that the respondent had any connection with the pamphlet or with its distribution. Nor is there any evidence to show that anyone connected with the distribution either through the post or in the Central Hall had any contact with the respondent, or that he distributed it with his knowledge or connivance. The question of identity of those who distributed it in the Central Hall, therefore, has in these circumstances become unnecessary and even futile. What is also equally important is that there is no provision in the Act for giving notice to and hearing persons alleged to be the distributOrs. A finding that a particular member or members of Parliament committed the offence of publication, an act punishable under the Penal Code, would thus amount to a finding arrived at without giving such person or persons an opportunity of being heard. 155. It was urged on behalf of the petitioners that the respondent, Shri V.V. Giri, had connived at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er from Shri Naidu. Shri V.V. Giri deposed that he did not know Shri Naidu and he did not think that he had ever seen him. Shri Giri further stated that he never received any letter from Shri Naidu requesting him to contradict the contents of the pamphlet. 157. Smt. Tarkeshwari Sinha, M.P., P.W. 43, deposed that the members of Parliament seemed to be affected by the pamphlet and that the atmosphere was bad as the character of Shri Sanjiva Reddy was being discussed. She said : I went to Mr. Giri's house on 14th of August in Defence Colony. Somebody came out. I asked him that I would like to see Mr. Giri. He went inside and I was in verandah and Mr. Giri came and I showed this pamphlet to him and I said to him that the election that is going on is for the highest office in the country and I think that you should repudiate this pamphlet, because this pamphlet is not only untrue, but is mean. He said : What can I do about it? I said to him that as a contestant for the highest office in the country it is your obligation to maintain the standard of the election campaign. He again repeated : What can I do in the matter? and suddenly became very cold and became quite and whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pamphlet ? A. Yes, about this pamphlet that such posters should not be issued and should be contradicted by his party. His reply was : what can I do ? In cross-examination he stated that he did not tell Shri Abdul Ghani Dar or Shri Sri Rama Reddy the exact date he went to Shri Giri's house but only told them that it was two or three days before the election. He said that there was no guard posted at Shri Giri's house because Shri Giri was interested in the election and further that two or three persons were sitting when he had this conversation with Shri Giri but he did not know them. It was difficult for him to give any idea or description of those persons. He further said that he went in the evening and he went from the front side and he could not give any further description of the house, whether the entrance of the house was in the front side, or whether it is only a ground floor house or whether there is any upper floor on it because he went there casually. He explained that by evening he meant 7, or 8. It was put to him that his entire story of going to Shri Giri's house was false, and he said : It is absolutely correct. If you examine my telephone direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further that the President never met anybody in the verandah. When asked : How do you know Shrimati Tarkeshwari Sinha ? , he replied : I am in the Security Branch of the Police for 12 years and I know she is a prominent member of the Parliament and then she was a Deputy Minister in the Ministry of Finance as I know some other members of Parliament and Ministers which I saw during the official duties and came in contact otherwise.' He asserted that to his knowledge no one who came to see Shri Giri was ever refused entry. He said that he did not know Shri Ram Krishan Gupta. M.P., neither did he know Shri N.P.C. Naidu. In cross-examination he said that he did not keep a visitors book nor a vigilance book but he used to make a report of his duties to the Superintendent of Police. He never gave the names of those persons who came and visited Shri Giri to the Superintendent of Police. He was unable to give the names of the persons who visited Shri Giri on 28th July or 14th August. He explained : I do not remember as to who came and on what particular date but I can give you the names whom I saw coming and meeting the President. He said that he read the evidence of Shri Krishn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .W. 1, is the son-in-law of Shri V.V. Giri. C-243, Defence Colony, was his house, and he said that Shri V.V. Giri conducted his campaign single-handed from this house, although members of his family assisted him. He said that Shri Giri went on tour on the 29th July and completed it on the 13th of August, 1969, but in between he came for a few hours on the 10th and again for a few hours on the 12th. He gave the same version about the duties of the Security Officers, and the procedure followed in the house for receiving visitors. He said that Smt. Tarkeshwari Sinha never came to see Shri Giri from the 20th July to the 16th August, and she did not come on the 14th August in the morning. He further said that Shri Giri never interviewed anybody in the verandah as it was open to the public gaze and where the Security Officer and probably the driver or some other clerk would be sitting or standing. He further stated that after Shri Giri returned from his tour on the 13th he was continuously with him and he was in attendance on him on the 13th, 14th and 15th; only on the 16th he left in the morning and went to the Parliament House to watch the voting. He further deposed that he knew Shri N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter to Shri Giri and he produced a copy of it in Court-Ext. P-67. Shri Dar did not address the letter himself but he told his Personal Assistant to put the address of Shri Giri on it and the letter was posted by his P.A. His P.A. has not been produced. Shri Dar further said that he enclosed one printed pamphlet in English with the letter. A copy of this was said to have been forwarded to the Prime Minster of India, New Delhi, and Prof. Humayun Kabir, who is now dead. There is no proof of this. Shri Giri was shown the copy of Ext. P-67 and he said that this letter was never received by him. In cross-examination it was suggested that the letter formed part of the correspondence which was destroyed when Shri V.V. Giri shifted to Rashtrapati Bhavan. We are of the view that it has not been proved that the letter was sent by Shri Abdul Ghani Dar. 172. The learned Counsel then relied on circumstantial evidence to prove that Shri V.V. Giri knew of the distribution of the pamphlet and connived at it. The learned Counsel urged that according to Shri V.V. Giri he conducted the election campaign single-handed and left the entire work of approaching M.P.s to the supporters, and in his evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed that the result of the election had been materially affected by the distribution of the pamphlet. This question we shall now consider. 175. It is well-settled that the burden of proving that the result of the election has been materially affected is on the petitioners. (see Vashist Narain Sharma v. Dev Chandra [1955]1SCR509 .; Mahadeo v. Babu Udai Pratap Singh [1966]2SCR564 .; Paokai Haokip v. Rishang Civil Appeal No. 683 of 1968 decided on August 12, 1968; and G.K. Samal v. R.N. Rao Civil Appeal No. 1540 of 1969 decided on January 20, 1970. The learned Counsel, relying on Surendra Nath Khosla v. Dalip Singh [1957]1SCR179 ., urged that this Court should draw a presumption, as was done in the case of a rejection of a nomination paper, that the result of the election has been materially affected, from the nature of the pamphlet and the manner of its distribution. He further stressed the fact that the petitioners were not in a position to compel witnesses to disclose their change of view and say for whom they voted. 176. A similar argument was advanced before this Court in Samant N. Balakrishna v. George Fernandez [1969]3SCR603 , 1225., But the learned Chief Justice reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to prove this by showing what the impact of the pamphlet on various electors and their reaction was. The reactions, as is to be expected, varied greatly in its intensity. The witnesses describe it variously : It was in bad taste, very derogatory; it was dirty, scandalous extremely bad, pernicious, contemptible, character assassination, horrible, vulgar and scurrilous, false and malicious, foul and filthy, unpleasant and foul. Shri Madhu Limaye, M.P., thought that it would affect the chances of his candidate, Shri Giri. Shri Kanwar Lal Gupta, M.P., was in doubt what to do and what not to do. Shri K.S. Chavda, M.P., said that he changed his mind. Shri N.P.C. Naidu, M.P., concluded that members would not vote for Shri Reddy. Shri Shiv Narain, M.P., frankly stated that though he thought that 'such a man should not be the President, yet Shri Rama Reddy convinced him that the pamphlet was totally false and he abided by the decision of the Congress Party Board, Smt. Jayabehn Shah, M.P., felt perplexed right upto the date she cast the vote but failed to positively assert that she voted for some other candidate because of the pamphlet. Shri N.N. Patel, M.P., said that he chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reddy after reading the pamphlet but admitted that he had always been disciplined and loyal Congressman and loyal to the directives of the party. Shri Sher Khan, M.P., did not believe in the truth of the allegations in the pamphlet as he had known Shri Sanjiva Reddy personally, but felt that those persons who did not know Shri Sanjiva Reddy might be affected by the pamphlet. Chaudhary A. Mohammad, M.P., said that the pamphlet did affect his mind but he did not view his decision in that light, being a loyal soldier of the Congress. Shri C.M. Kedaria deposed that after reading the pamphlet he could not risk voting for such a candidate for such a high post. Whether he actually voted for Shri Sanjiva Reddy or not is anybody's guess because neither side asked him that question. Shri N. Sri Rama Reddy, M.P., one of the petitioners, had known Shri Sanjiva Reddy for the last 35 years, and was his counting agent. It is not suggested that his vote was affected by the pamphlet. Shri Abdul Ghani Dar, M.P., a petitioner, stated that after the pamphlet was read out to him he thought that country was sinking and extreme danger has been posed to the democracy. It is, however, quite clear fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence to Shri Sanjiva Reddy. It is, however, true that if 26 more members of Parliament had voted for Shri Sanjiva Reddy, instead of Shri Giri, the former would have been elected. 183. Therefore, on the evidence before us, it is impossible to sustain the contention of the petitioners. In the result we hold that it was not been proved that the result of the election was materially affected by the publication and distribution of the pamphlet. 184. The learned Counsel for the petitioners urged another point in order to impeach the validity of the election. It was said that Shri Dinesh Singh, then Minister for External Affairs, visited Lucknow somewhere round about the 10th of August and exercised undue influence on various members of U.P. Legislature. Shri Dinesh Singh denied having ever visited Lucknow round about that time. He said that he did not go to Lucknow till after the polling date. A number of witnesses have been produced on behalf of the petitioners to establish the visit of Shri Dinesh Singh to Lucknow. 185. Shri Bansi Dhar Pandey. M.L.A., U.P., P.W. 18, deposed regarding Shri Giri's visit to Lucknow. He said that Shri Dinesh Singh came to Uttar Pradesh for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Giri. According to the witness by the other candidate Shri Dinesh Singh meant Shri Reddy, the Congress candidate. Shri Dinesh Singh is further alleged to have told the witness that the Prime Minister is a great leader of the party and her wishes also fell within the discipline . Shri Dinesh Singh is further alleged to have pointed to the witness that the witness came from Rai Bareli which was Prime Minister's constituency and great help was received from her in election. The witness understood this to mean that if he voted against the Prime Minister then the help available to him from her would not be available. 189. Shri Ram Pyare Panika, M.L.A., P.W. 37, who was examined on March 2, 1970, gave similar evidence as the earlier witnesses from Uttar Pradesh. He said that Shri Dinesh Singh visited Lucknow about 9 or 10 days before the polling but he could not give the exact date. He said that Shri Dinesh spent two or three days in Lucknow but he could not say where he stayed. To the question : How do you know that he was there for two or three days? , he replied : Because he met me once and some friends of mine told me that he also met them two or three days after that. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent unless he tells the Secretary ahead that someone is going to see him. He said that whenever he goes out, whether on an official or a private tour, a tour programme is issued, and it is indicated in the tour programme whether the visit is official or private and it has the list of people to whom it is circulated. He further stated that whenever he goes to Lucknow he stays with the Governor in the Raj Bhavan or in the State Guest House and he usually goes by train and sometimes by plane. 194. The diary kept by the Private Secretary was produced and shown to the counsel for the petitioners, and the witness was cross-examined in detail about the diary and the way it is maintained. To the question : I put it to you that you were in Lucknow on Sunday the 10th August , he answered : No. it would not be correct because I did not go out of Delhi. 195. This date was apparently chosen by the learned Counsel because in the diary the page of August 10, 1969, was blank. It was further suggested that the witness perhaps went by car towards the evening of 9th and reached Lucknow by the morning and then proceeded to Partapgarh for three hours and then back to Lucknow by 12 O' clock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesh Singh. Further he did not hear of Shri Dinesh Singh going to Lucknow in the month of August. 199. Shri Kamlapati Tripathi, R.W. 61, who was the President of the U.P. Congress Committee at the relevant tune also stated that he was in Lucknow between the 1st of August and the 16th of August and that during this period, as far as he could recollect, Shri Dinesh Singh did not visit Lucknow. He further said : Usually when he comes to Lucknow, he gives me a ring that he is coming to Lucknow, and after reaching Lucknow he informs me of his arrival there. The evidence of Shri Mumtaz Mohd. Khan, R.W. 44, whom he knew, regarding Shri Dinesh Singh's alleged visit to Lucknow was put to him where he had said that Shri Kamlapati Tripathi was one of the persons present hi the meeting; the witness replied : No meeting was held. Neither I was present anywhere. This is a false statement. 200. Shri I.K. Gujral, R.W. 40, attended Shri G.S. Pathak's party on Sunday the 10th August and produced a letter dated August 9, 1969, signed by Shri G.S. Pathak and addressed to Shri I.K. Gujral, inviting him to tea at Mysore Bhavan. Shri Gujaral said that Shri Dinesh Singh was present there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed Out that according to the schedule date of return the Minister was supposed to return on Saturday, the 19th July, but he returned in fact on the 18th July, a day earlier, and he issued a revised programme on the 17th of July. After looking up the tour programmes file he said that Shri Dinesh Singh went to Lucknow only on the 22nd August and he then went by plane and returned by plane and the tour programme was issued. 203. In cross-examination the learned Counsel for the petitioner tried to show that the diary was not absolutely complete. In reply to the learned Counsel the witness said : So far as the prior engagements are concerned, if an engagement has not been fulfilled, either it would be rubbed off or scored out, but whatever engagements appear in the diary, they would indicate they have been fulfilled. He further admitted that he did not always score out the entry specially in the case of the national days of the Embassies, because he had to inform the Chief of Protocol that the Minister would not be able to attend the reception and he has to explain the Minister's inability to attend to the Ambassador concerned. He added : Therefore, to remind myself, I do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntry at 3 O'clock shows that the Minister started for Palam Airport; he would go by plane from there to Lucknow. Signed Ravi Bhan Singh. He stated that the gunman on duty went with the Minister upto Palam airport and stayed there till the plane took off and that was why he would know that he was going to Lucknow by plane. 206. Nothing useful was brought out in cross-examination and we are satisfied that the Roznamcha was kept in the regular course of duty and the entries in it support Shri Dinesh Singh's version that he did not go to Lucknow on the 10th August, or between the 1st August and the 16th August. If there had been any truth in the version given by the petitioners it would not have been difficult for them to produce evidence either from the railway records or the records of the Indian Airlines to show that reservation was made on behalf of Shri Dinesh Singh and he travelled to Lucknow and back. Further in those days the local papers, if not the national papers, would at least have carried some news items about the visit of Shri Dinesh Singh to Lucknow as it was a visit alleged to be for election purposes, and according to the petitioners he had met a number o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of other States and he was also Vice-President. So he told us that a man lie him should be voted and we should vote in favour of Mr. Giri. He further deposed that after the meeting he and three or four M.L.As. met Shri Giri separately and he told them the same thing and in addition said : If you want to progress India a man like me should be voted. 211. P.W. 38, Shri Abdul Salim Shah's version is that Shri V.V. Giri said that he had been the Vice President and also a Governor on behalf of the Congress and I have spent the whole of my life in the Congress in the companionship with Mahatma Gandhi. I deserve it more that I should be elected as the President of India. He added that at a personal meeting along with Shri Mumtaz Khan Shri Giri asked us whether we should vote for him. 212. The last witness on this point, Shri Mumtaz Khan, P.W. 44, gave the most detailed version. According to him Shri Giri appealed to the members of the Assembly to vote for him. He said that he has 'held very high offices. He was the Vice-President of India. He was also the Governor of U.P.; he has been doing social service all throughout his life and he was a very fit candidate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Giri left, accompanied by 17 or 18 people, and that no talk took place between them and Shri Giri. In cross-examination he stated that Shri Giri talked about his work and his visit to many countries and he explained everything but did not discuss political issues with them. 216. Another witness, Shri Ashraf Ali Khan, M.L.A., R.W. 27, gave an account of Shri Giri's talk to them. He said : He talked about his candidature that he was seeking his election as an independent candidate, because he considered that the post of the President was of such a stature that a non-party man should seek election, and that he had always stood for the common man and worked for him throughout his labour movement, and he was seeking the vote of all persons who believed in the ideology of the common man. He further added that not a single word was said about Shri Sanjiva Reddy or that he was a candidate put up by Smt. Indra Gandhi. The witness admitted that he was elected on the Congress ticket; he only went to the meeting because it was held in the hostel compound. He said that other congressmen also attended the meeting because it was held in the hostel. 217. The statement of Shri V.V. Gir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nity in India will be in danger and in constant threat of extinction. An instance was given of the conversation which took place between Shri Yunus Saleem and Shri Abdul Ghani Dar, petitioner. The following particulars were supplied regarding the allegations in this sub-para : Date Name of person threatened Place where threatened Shri Fakhruddin Ali Ahmed 11.8.69 Sh. Abdul Ghani Dar, M.P. At his residence on telephone 11.8.69 Sh. Sher Khan, M.P. At his residence by telephone 11.8.69 Chaudhary A. Mohammad At his residence on telephone M.P. Shri Yunus Saleem 11.8.69 Sh. Abdul Ghani Dar, M.P. In the Central Hall of Parliament 11.8.69 Sh. Sher Khan M.P. In the Central Hall of Parliament 11.8.69 Chaudhary A. Mohammad In the Central Hall of Parliament The particulars stated above were stated to be true to information received by Shri Abdul Ghani Dar from Shri A. Mohammad, M.P., and Shri Sher Khan, M.P., and were believed to be true to his knowledge in so far as they related to himself. 221. Shri Sher Khan, M.P., P.W. 51, deposed that perhaps on the morning of August 11, 1969, Shri Fakhruddin Ali Ahmed rang him up and told him on the telephone that all Muslims together will vot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmed had told him. 224. It will be noticed that in the particulars Shri Sher Khan is not stated to have met Shri Fakhruddin Ali Ahmed in the Central Hall and it is not stated that Shri Yunus Saleem had telephoned to him. 225. Chaudhary A. Mohammad, M.P., P.W. 52, deposed that Shri Fakhruddin Ali Ahmed telephoned him on the 10th or 11th of August and told him : It has been decided to support Mr. Giri in the election and also that in this the Muslims stand to gain and if Mr. Sanjiva Reddy wins the interest of the Muslim community will be in danger. The witness plainly told Shri Fakhruddin Ali Ahmed that he was a soldier of the organisation and he could not go against the decision of the Congress. He then added that he was with Shri Sher Khan when Shri Fakhruddin Ali Ahmed addressed Shri Sher Khan and was saying that they had decided to vote for Mr. Giri and therefore we should obey this final decision and also that this was in the interest of the Muslims. According to the witness Shri Fakhruddin Ali Ahmed was threatening Shri Sher Khan by saying : We distribute tickets and that he will not be given any ticket and that he was retiring. We may mention that Shri Sher Khan w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is also wrong that by the return of Mr. Sanjiva Reddy there will be any danger for the Muslims. 229. The letter, Ext. P-68, was alleged to have been written by Shri Abdul Ghani Dar on August 13, 1969, and the following passage may be extracted : Brothers it is said that Muslim League and Syed Baderuja are openly with communists. It is also said that Mr. F.A. Ahmed and Mr. Yunus Saleem are canvassing with Muslim members to defy the mandate of the congress president for congress Shri S. Sanjiva Reddy because Jan Sangh is on his side.... Now what right the communists or my brother Ahmed and Saleem have to canvass Muslims in the name of Islam and Muslims of India. It is very sad that they are playing a very dangerously game. (emphasis supplied.) This letter does not support Shri Abdul Ghani Dar that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem canvassed with him because the sentence begins : It is also said In other words he seems to have heard from some source that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem were canvassing the Muslim Members. If his evidence is true we would have expected him to have stated in the letter that Shri Fakhruddin Ali Ahmed and Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned that he had no talk with him in his office or in the Central Hall of Parliament. He further said that he knew Chaudhary A. Mohammad but he did not visit him and they did not meet very often. He further characterised Shri Abdul Ghani Dar's evidence as absolutely incorrect that he approached him on the telephone. He added that he had never approached him regarding the election matters. He said that he did not receive any letter from Shri Abdul Ghani Dar. In cross-examination he stuck to the statement he had given in examination-in-chief regarding Shri Sher Khan, Chaudhary A. Mohammad and Shri Abdul Ghani Dar, and non-receipt of the letter, Ext. P 68. He denied that during the course of the Presidential election any propaganda along the lines suggested by these three witnesses was carried on by him among the Muslim Members of Parliament. 233. Here again there is direct conflict between the witnesses. We have already held that the particulars given by Shri Abdul Ghani Dar were given on pure guess work and the verification he appended to the particulars was not true. Even on this aspect of the case the evidence given in Court is different from what is stated in the particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Parliament was held at about that time in connection with the Presidential election. To the question : Did any Minister of the Central Government contact him and told him what he should do about voting, otherwise the Muslims would be wiped out? , he replied : Certainly not. 237. Shri P.M. Syed, R.W. 13, said that he did not hear any communal cry raised by Shri Fakhruddin Ali Ahmed in the context of the election nor was any communal cry raised by Shri Yunus Saleem during those days. 238. It seems to us highly improbable that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem would approach these three witnesses and canvass support for Shri Giri on the ground that the fate of the Muslim community would be in danger. It seems to be very unlikely that if Chaudhary A. Mohammad was present alongwith Shri Sher Khan in the Central Hall, Shri Fakhruddin Ali Ahmed would not talk directly to both of them because according to them they both had already been contacted over the telephone. If Shri Fakhruddin Ali Ahmed wanted to supplement the talk he already had on the telephone it would have been natural for him to have talked to both of them. Moreover, if it was true some mention of it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative Assembly, asking them to cast their vote in favour of Shri Sanjiva Reddy. He gave reasons in Ext. P 74 why this should be done. But then he changed his stand. He gave the following explanation in answer to the question : After issuing this appeal did you change your position in relation to the Presidential election? : Well, I may say that I made a choice. The letters to the congress president of that time, Shri Nijalingappa, written by Jagjivan Ram and Fakhruddin Ali Ahmed, were published in the papers on the 12th of August, if I remember the date correctly, in which the demand to sanction the freedom to vote was published. I also made a request to the congress president to allow this freedom of vote in view of the serious situation developing within the organisation regarding this question, and I requested that by sanctioning' that freedom of vote, perhaps, it would be possible to maintain the unity and avoid disruption in the organization. He further added : It was, perhaps, on the 14th evening. And then I saw very clearly that on this issue a split was going to take place in the organization. So, when the organization was going to be divided, as I saw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... candidate, Shri V.V. Giri, is the sole respondent in Election Petitions Nos. 1, 4 and 5 of 1969, while, in Election Petition No. 3 of 1969, he was impleaded as respondent No. 2 and the Union of India, through the Election Commission, as respondent No. 1. In this judgment, the reference to respondent will be to the successful candidate, Shri V.V. Giri. 248. The election was occasioned by the demise of the then President of India on the 3rd May, 1969. The Election Commission issued a notification under Section 4 of the Presidential and Vice-Presidential Election Act No. XXXI of 1952 (hereinafter referred to as the Act ) appointing the 24th July, 1969, as the last date for filing nomination papers. The date for scrutiny of the nomination papers was 26th July, 1969, and the last date for withdrawal of nominations was the 29th July, 1969. The polling was fixed for the 16th August, 1969. 24 nomination papers were filed by the last date for filing nominations. The scrutiny took place on 26th July, 1969, in which the Returning Officer rejected 9 nomination papers, including the nomination papers of the petitioners in Election Petitions Nos., 1 and 3 of 1969. He accepted the nominati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Article 14 of the Constitution; and (10) That the petitioners were entitled to dispute the election even on grounds other than those mentioned in Section 18 of the Act, viz., that the respondent or any person with his connivance had printed, published and distributed a pamphlet containing scurrilous attacks against the personal and moral character of one of the candidates, Shri N. Sanjiva Reddy, which were false. 250. The detailed facts relating to these grounds will be more conveniently mentioned when dealing with the various issues framed on the basis of these pleadings and, to avoid repetition, they are not being mentioned at this stage. On these pleadings, the following issues were framed in the various election petitions :- Election Petition No. 1 of 1969. 1. Whether the nomination papers of the petitioner, Shri Charan Lal Sahu and Shri Yogi Raj were wrongly rejected as alleged in paragraphs 5(a) and (b), 6 and 7 of the petition? 2. Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 5(c) and 8 of the petition? 3. Whether the nomination papers of Shri Rajbhoj Pandurang Nathuji and Pandit Babu Lal Mag we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, whether that has materially affected the result of the election? 5. Whether Part III and Section 21 of the Act are ultra vires the Constitution of India? 6. Whether Rules 4 and 6(3)(e) of the Rules are ultra vires the Constitution and the rule-making power of the Central Government? 7. (a) Whether the elected members of the Legislative Assemblies of the Union. Territories were entitled to be included in the Electoral College for the election of the President? (b) If so, whether the non-inclusion of the members of the Legislative Assemblies of the Union Territories in the Electoral College amounts to non-compliance with the provisions of the Constitution? If so, whether the result of the election has been materially affected by such non-compliance? (c) Whether the alleged non-compliance with the provisions of the Constitution has violated Article 14 of the Constitution? 8. (a) Whether the petitioners are entitled to dispute the election of the respondent on grounds other than those mentioned in Section 18 of the Act? (b) If issue No. 8(a) is decided in favour of the petitioners- (i) whether the respondent or any person with his connivance p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative Assemblies of the Union Territories were entitled to be included in the Electoral College for the election of the President? (b) If so, whether the non-inclusion of the members of the Legislative Assemblies of the Union Territories in the Electoral College amounts to non-compliance with the provisions of the Constitution? If so, whether the result of the election has been materially affected by such non-compliance? (c) Whether the alleged non-compliance with the provisions of the Constitution has violated Article 14 of the Constitution? 8. (a) Whether the petitioners are entitled to dispute the election of the respondent on grounds other than those mentioned in Section 18 of the Act? (b) If issue No. 8 (a) is decided in favour of the petitioners- (i) whether the respondent or any person with his connivance printed, published and distributed the pamphlet at Annexure A-38 to the petition? (ii) whether the pamphlet at Annexure A-38 contained any false statement of facts relating to the personal character and conduct of Shri N. Sanjiva Reddy, a candidate at the election and other persons named in the pamphlet? (iii) whether the persons found resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be done only if the result of the election is shown to have been materially affected and that these are restrictions on the jurisdiction conferred by Article 71(1) and are ultra vires. The Court held :- Article 71(1) merely prescribes the forum in which disputes in connection with the election of the President and Vice-President would be enquired into. It does not prescribe the conditions under which the petition for setting aside an election could be presented. Under Article 71(3), it is Parliament that is authorised to make law for regulating any matter relating to or connected with the election of the President or Vice-President, and the Act has been passed by Parliament in accordance with this provision. The right to stand for election and the right to move for setting aside an election are not common law rights. They must be conferred by statute and can be enforced only in accordance with the conditions laid down therein. The contention that the Act and the Rules derogate from the jurisdiction of the Supreme Court under Article 71(1) must accordingly be rejected. The argument advanced was that the Court, in giving that decision, incorrectly proceeded on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion can be called in question, while the procedure for calling in question the election as well as the grounds on which the election can be called in question can only be laid down by Parliament by a law passed under Article 327. In the case of Article 71. it appears that no need was felt of making a provision similar to Article 329(b) when Article 71(1) itself laid down the limitation that all doubts and disputes arising out of or in connection with the election of a President or Vice-President are to be enquired into and decided by the Supreme Court whose decision shall be final. This limitation does not affect or limit the power of Parliament to regulate matters relating to filing of election petitions in the Supreme Court and of the grounds on which the elections can be challenged when the Supreme Court exercises its jurisdiction under Article 71(1). In these circumstances, the argument that Part III of the Act is ultra vires Article 71(1) of the Constitution must be rejected. 253. So far as the validity of Section 21 of the Act is concerned, it was challenged on the ground that the power of making rules suffers from the vice of excessive delegation of legislative powers in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in contravention of the provisions of the Act, or for any reason other than to give effect to the purposes of the Act, would be declared void by the Court not on the ground that there was excessive delegation of legislative power, but that it goes beyond the scope of the power conferred on the Government under Section 21 of the Act. Section 21 of the Act itself cannot therefore, be held to be void on any ground. Issue No. 6 of Election Petitions Nos. 1, 4 and 5 of 1969 254. Under this issue, the petitioners challenged the validity of Rule 4(1) of the Rules to the extent that it requires that a certified copy of the entry relating to the candidate in the electoral roll for the Parliamentary constituency in which he is registered must accompany the nomination paper, and the validity of the consequential provision in Rule 4(2) which lays down that a nomination paper, to which the certified copy referred to in Sub-rule (1) of this Rule is not attached, shall be rejected. This part of Rule 4(1) is challenged on two grounds. One is that such a requirement is beyond the rule-making power of the Government under Section 21 of the Act, and the second is that the Rule is arbitrary and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified for standing for election. For that purpose the candidate is given the choice either to produce a copy of the electoral roll of that other constituency, or of the relevant part thereof or of a certified copy of the relevant entries in such roll before the returning officer at the time of the scrutiny, if he has not already filed such copy with the nomination paper. This decision clearly supports the view that the requirement in Rule 4(1) that a certified copy of the entry showing that the candidate is an elector in a Parliamentary constituency is necessary in order to enable the Returning Officer to check whether the candidate is eligible for nomination and election. The manner in which the Returning Officer should be given the necessary information is a matter of detail relating to nomination and, consequently, this Rule is within the scope of the power conferred on the Central Government to make Rules for giving effect to the purposes of the Act. 255. Based on this very decision cited above, learned Counsel for the petitioners urged that, in Section 33(5) of the Representation of the People Act, 1951, the requirement is the production of either a copy of the electora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e misleading if it is allowed to be filed before the Returning Officer to show eligibility in the case of a Presidential or Vice-Presidential election. That seems to be the reason why Rule 4(1) lays down that a certified copy of the entry alone will be the proper manner of satisfying the Returning Officer of the eligibility of the candidate. The original electoral roll, of course, cannot be produced as there is only one original which is retained either by the Electoral Registration Officer or in the office where the Chief Electoral Registration Officer directs it to be preserved in accordance with the Rules framed under the Representation of the People Act, 1950. In such circumstances., if the rule-making authority did not consider it safe to rely on printed copies of the electoral rolls issued generally at the time of general elections to Parliamentary constituency, it cannot be said that the authority acted arbitrarily or unreasonably. The smoothness of the elections could only be ensured by requiring the filing of a certified copy of the entry which would be immune from any doubt or challenge. The mere fact that the requirement of Rule 4(1) of the Rules differs from the require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andidate or an elector. The filing of nomination paper only regulates the manner in which a candidate is to signify the fact that he desires to be elected, and the provision for the nomination paper being signed by two electors as proposer and seconder is meant only to indicate to the electors in general that the candidate is being put forward for election by at least two electOrs. The nomination paper also serves the purpose of informing the Returning Officer who are the candidates, so that appropriate steps can be taken for holding the poll by having ballot papers printed and appropriate number of ballot boxes provided. The language of Section 5(2) itself shows that it was while prescribing the manner of subscribing a nomination paper that Parliament laid down that it should be subscribed by the candidate himself as assenting to the nomination and by two electors as proposer and seconder. Had there been an intention to confer a right on any of them, the language would have been different giving such indication by laying down what the candidate and the electors are entitled to do in respect of a nomination paper. Obviously, Section 5 only lays down the essential ingredients of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning more than one nomination paper as a proposer. It did not lay down that every elector had been conferred a right to sign the nomination paper of more than one candidate as a proposer. While no right can be read as having been conferred by such a provision, there will be no bar to a rule being made by the rule-making authority limiting the number of nomination papers to be signed by each elector as a proposer or a seconder. In fact, Rules are always meant to fill in details of procedure in respect of which the Act does not contain specific provisions. The Rules are meant to supplement the provisions of the Act and to deal with matters incidental, in respect of which there is no definite provision made in the Act itself. The fact that there is no ban in Section 5(2) of the Act on an elector signing more than one nomination paper as a proposer or a seconder does not, therefore, mean that Rule 4(3) of the Rules could not have been competently made by the Government. Rule 4(3), on the face of it, contains a very reasonable direction. If there is only one vacancy for which election is to be held, an elector can reasonably be expected to nominate only one candidate as proposer and put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Punjab in Regulation 4; for Burma in Regulation V; for Bihar and Orissa in Regulation 24; for the Central Provinces in Regulation 4; and for Delhi in Regulation 5. All these Regulations were made under Rule 15 of the Legislative Assembly Electoral Rules. Thus, the principle that an elector should not sign nomination papers as proposer or seconder in excess of the number of vacancies was observed throughout India. Similar provisions existed in the various Provinces in respect of elections to be held to the Legislative Councils of the Provinces. Later, when the Council of State came into existence after the Government of India Act, 1935, provision was made in Rule 11(4) limiting the number of nomination papers, which could be subscribed by an elector as proposer or seconder, to the number of vacancies to be filled and no more. Even in the Representation of the People Act, 1951, when first enacted, there was a similar provision. The Act, with which we are concerned, was passed in 1952 in this stage of legislation and it is obvious that Parliament, when enacting Section 5, left it to the rule-making authority to make detailed provisions of this nature. 260. It may also be mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the electoral roll for the Parliamentary constituency in which he was registered. Instead, his nomination paper was accompanied by a few printed sheets purporting to be part of the electoral roll of that constituency containing his name as an elector. It has already been held above, when dealing with Issue No. 6, that Rule 4(1), requiring that the nomination paper must be accompanied by a certified copy of the electoral roll containing the entry relating to the candidate, is valid and mandatory. Since there was clear non-compliance with that Rule, the rejection of the nomination paper of Shri Shiv Kirpal Singh was correct and justified. 262. The nomination paper of Shri Charan Lal Sahu was rejected on the ground that he was less than 35 years of age on the date of nomination. The nomination paper was, no doubt, accompanied by a certified copy of the entry in the electoral roll in which his age was shown as 32 years on 1-1-1966. The Returning Officer had some doubt whether Shri Charan Lal Sahu had completed the age of 35 years and, consequently, he asked Shri Charan Lal Sahu, who was present at the time of scrutiny, to state his date of birth. He gave in writing that his date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e certified copy filed, it is not possible to accept the submission, because, on the face of it, it is a certified copy of the electoral roll issued by the appropriate authority. These issues are, therefore, decided against the election petitioners. Issue No. 3 in Election Petitions Nos. I 5 and Issue No. 2 in Election Petition No. 4 of 1969 265. Under these issues, the validity of the acceptance of the nomination papers of four candidates, Shri Rajbhoj Pandurang Nathuji, Shri Santosh Singh Kachhwaha, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi, was challenged. In Election Petition No. 5 of 1969, the nomination paper of Shri Rajbhoj Pandurang Nathuji was challenged on two grounds, but one of the grounds was given up, and the only ground, which was pressed and which was also common to other election petitions, was that the copy of the electoral roll, which accompanied his nomination paper, was not certified by the appropriate officer. This submission was made on the wrong basis that the Rules required that the certified copy must be issued either by the Electoral Registration Officer or the Assistant Electoral Registration Officer. The copy was, in fact, issued by one Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assent to this nomination . It was urged that a signature in token of such assent to that particular nomination must be made by a candidate after both the proposer and the seconder have signed. Reliance was placed in this connection on the decision in Harmon v. Park [1881] 7 Q.B.D. 369. In that case, the question arose about the validity of a nomination paper of a candidate Mark Harmon which, when initially presented, had the name of William Ball as proposer, together with signatures of the seconder and eight burgesses as assenting parties to that nomination. The clerk, on looking at the burgess roll, found that the name of William Ball was on the list of electors, but it was noted in the margin not entitled to vote here . At the time of presentation, one John Green, a duly enrolled burgess, happened to come into the office and, seeing the nomination paper signed by Ball, and knowing that the name of William Ball was not on the burgess roll as a person entitled to vote, struck out Ball's signature and inserted his own name in lieu thereof. At that time, Ball, the original proposer, the seconder and the assenting burgesses were not present. Green handed In this nomination pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned signed in token of their assent before the proposers or the seconders had signed their nomination papers, the candidates knew that they were assenting to be put forward as candidates at the election and, subsequently, after the proposers and seconders had signed their nomination papers, they themselves took those nomination papers and presented them before the Returning Officer. Clearly, therefore, they indicated their assent to being nominated by the particular proposers and seconders, who signed their nomination papers, by taking the step, after their signatures, of carrying the nomination papers to the Returning Officer and presenting them as valid nominations. 267. There is further the circumstance that, though, in England, in the particular circumstances of the case in Harmon v. Park [1881] 7 Q.B.D. 369. it was held that a nomination paper was invalid if signed by the proposer after it had been signed by eight burgesses in token of their assent, the law as to nominations in India has throughout been interpreted different. As early as the year 1922, when also the provision in respect of signing of nomination papers was similar, it was held by the Election Tribunal in J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing to show that the proposer and seconder did not intend to nominate that particular candidate. In the present case, there is nothing to show that the candidates did not intend to be nominated by the proposers and seconders who had signed their nomination papers after they had signed them in token of their assent. On the other hand, as indicated above, it must be held that the candidates actually signified their assent to being nominated by the proposers and seconders, who had signed earlier, by presenting the nomination papers themselves to the Returning Officer. 269. Another Election Tribunal, in the year 1946, arrived at the same decision in the case of Mahant Digvijai Nath v. Sri Prakash. In that case also, the candidate had signed the nomination paper before it was signed by the proposer and seconder. The Tribunal placed reliance on the decision in Jamna Prasad v. Sri Krishna Prasad (supra) and held :- Even if it is assumed that strictly speaking the candidate must sign his name after the proposer and seconder have signed it, there is no direction in the rules that it should be so and that there is no invalidating consequence provided for in the rules in case this h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the proposer and the seconder, because a mere look will make it clear ex facie that the whole of the nomination paper, including the signatures of the proposer, the seconder, and the candidate are in the handwriting of one person. This allegation was controverted by the Returning Officer in his counter-affidavit who has sworn that it did not appear to him that all the signatures were in one handwriting and that he was satisfied that the nomination paper had been properly proposed, seconded and signed. After this counter-affidavit, when the petition was argued, learned Counsel for the petitioner did not press this issue and did not try to produce any evidence to show that the signatures of the proposer, the seconder, and the candidate were not genuine. Consequently, the acceptance of the nomination paper of Dr. Ram Dulare Tripathi was not invalid. Issue No. 4 in Election Petition No. 1 of 1969 and Issue No. 7 in Election Petitions Nos. 4 and 5 of 1969. 271. The ground covered by these issues is sought to be raised on the basis of the provisions contained in Article 54 of the Constitution read with the definition of State contained in Clause (58) of Section 3 of the Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will also apply to the interpretation of the Constitution. Since, until its amendment in 1956, Section 3(58) of the General Clauses Act did not define State as including Union Territories for purposes of interpretation of Article 54, the Union Territories cannot be treated as included in the word State . 273. The second reason why it must be held that members of Legislatures of Union Territories cannot form part of the electoral college under Article 54 is that that Article confines the electoral college to members of Legislative Assemblies of the States and there are no Legislative Assemblies in the Union Territories. Under Article 168, for every State there is to be a Legislature which shall consist of the Governor, in certain States two Houses, and in some other States one House. The Article further lays down that, where there are two Houses of Legislature, one is to be known as the Legislative Council and the other as the Legislative Assembly and, where there is only one House, it is to be known as the Legislative Assembly. On the face of it, only members of Houses known as Legislative Assemblies under Article 168 can be members of the Electoral College under Article 54. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 5(2) of the Act was enacted by Parliament in exercise of its power of regulating all matters relating to or connected with the election of a President or Vice-president arid, in exercise of this power, Parliament was fully competent to lay down how a candidate, otherwise qualified, must become a candidate by seeking nomination by two electors and to prescribe the detailed subsequent procedure leading up to the polling and declaration of result. The requirement laid down by Parliament that every person must be nominated by two electors as proposer and seconder is a reasonable requirement relating to regulation of election to the office of a President and cannot be held to be a curtailment of the right of a qualified candidate to stand as a candidate under Art; 58. In these circumstances, the ground, on which the election petition has been filed, fails and, consequently, the petition is liable to be dismissed. Issue No. 8 in Election Petitions Nos. 4 and 5 of 1969. 275. This issued was raised by the petitioners on the plea that Part III of the Act, which includes Section 18, is ultra vires Article 71(1) of the Constitution, so that the petitioners are entitled to challenge a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bribery was rampant during the elections. 277. So far as this second allegation relating to the letter of Shri Kanwar Lal Gupta, Member of Parliament, is concerned, no evidence was allowed to be tendered on it on behalf of the petitioners, because the allegation was in a very general form stating that the offence of bribery was rampant; and this pleading was also based solely on a letter written to the Election Commission. No specific instances were cited and no particulars were given. On the face of it, a general allegation that bribery was rampant in the elections could not be made the subject-matter of a specific charge of commission of offence of bribery. 278. Evidence was allowed to be led on the first charge which, if the facts had been proved to be true, could possibly constitute the offence of bribery. If, in fact, the licence had been granted to a private limited company with the specific purpose of obtaining the vote of Shri Sita Ram Jaipuria, an elector and a Member of Parliament, for the respondent, that could constitute bribery. However, from the evidence led on this issue on behalf of the petitioners themselves, it appears that no case at all of commission of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a large body which includes amongst its members Secretaries of various Ministries as well as representatives of State Governments. This Committee appoints sub-committees for licences concerned with specific Ministries of the Government. In the case of the Polyster Fibre Factory, the meeting of the sub-committee took place on the 7th July, 1969 when the decision was taken to grant the licence to Swadeshi Cotton Mills, Kanpur. In accordance with the rules, this decision of the sub-committee was submitted to the Minister in charge of the Ministry of Industrial Development who gave his approval in the second week of July. It was subsequently that a letter of intent for granting the licence to Swadeshi Cotton Mills was issued On behalf of the Government of India on 24th July, 1969. According to the procedure prevailing, any parties, who were claimants for licence and whose claims were rejected, had a right to make a representation after the issue of the letter of intent and their representation had to be considered by the full Licensing Committee. The meeting of the full Licensing Committee was actually held on the 13th November, 1969. At this meeting, representatives of the U.P. Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bery or undue influence at the election has been committed by the returned candidate or by any person with the connivance of the returned candidate; or (b) that the result of the election has been materially affected- (i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance, the Supreme Court shall declare the election of the returned candidate to be void. Section 18(2) gives the definition of the C words bribery and undue influence by laying down that, for the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code. In the Indian Penal Code, Section 171C which defines undue influence is as follows :- 171C. (1) Whoever voluntarily interferes or, attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. (2) Without prejudice to the generality of the provisions of Sub-section (1), whoever- (a) threatens any candidate or voter, or any person in whom a candidate or v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving made up his mind, he has to go and exercise that electoral right by casting the vote in favour of the candidate chosen by him. The language used in Section 171C indicates that the offence of undue influence comes in at the second stage when the offender interferes or attempts to interfere with the free exercise of that choice of voting in accordance with the decision already taken by the voter. It, therefore, follows that, if any acts are done which merely influence the voter in making his choice between one candidate or another, they will not amount to interference with the free exercise of the electoral right. In fact, all canvassing that is carried on and which is considered legitimate is intended to influence the choice of a voter at the first stage and that is quite permissible. Once the choice has been made by a voter, there should be no interference with the free exercise by him of that choice by actually casting the vote, or, in the alternative, there may be a case where a voter may decide that he will not vote for any candidate at all, but some acts are done which compel him to cast his vote. It is in such cases that the offence of undue influence will be held to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re may be a case where such virulent propaganda may be carried on against a candidate as may cloud the mind and judgment of the voters and almost compel them to come to a decision that they should not vote for that particular candidate. It was urged that, in such a case, it should be held that undue influence was exercised on the voters. In considering this proposition, various aspects have to be kept in view. The first is that, if it is held that propaganda adverse to a candidate can amount to undue influence, it will be almost impossible to draw a line and differentiate between legitimate propaganda which will amount to undue influence, and that which will not. Then comes the question of the reverse type of propaganda where a particular candidate is so highly praised that voters are influenced to the extent of considering him an excellent person well above all other candidates; and the question will be whether such an influence on the mind of a voter can be held to be undue influence. More important than all these aspects is the scheme of the law and the language used in it which, in my opinion, very clearly show that mere propaganda against a candidate cannot be held to be exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain from voting. This covers all threats of injury to person or property and all illegal methods of persuasion and any interference with the liberty of the candidates or the electors. The language used in Section 171C was, thus, intended to cover only cases where the interference comes at the stage when the elector must have liberty to cast his vote freely, having already made up his mind how that vote is going to be cast. It is interference at this stage that was envisaged as amounting to undue influence. 283. The subject of influence at the stage of making a choice was dealt with in Chapter IXA of the Indian Penal Code under a separate and distinct provision which is contained in Section 171G and is as follows :- Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, shall be punished with fine. This section clearly recognises that, at elections, there is bound to be propaganda in which candidates or their supporters may be issuing st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corrupt practice on the commission of which an election can be declared void. Such omission in the Act cannot, however be a good reason for enlarging the meaning of the offence of undue influence so as to hold that an election of a President or Vice-President must also be set aside on such a ground. It may be noticed in this connection that, in the Representation of the People Act, 1951, there is a specific provision contained in Section 123(4) laying down that a corrupt practice is constituted by the publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal or any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. In the Representation of the People Act, 1951 also, undue influence is defined in almost the same language as that contained in Section 171C, I.P.C. In that Act, therefore, an election can be declared void not only on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection. Such canvassing does not amount to undue influence but is proper use of the Minister's right to ask the public to support candidates belonging to the Minister's party. It is only where a Minister abuses his position as such and goes beyond merely asking for support for candidates belonging to his party that a question of undue influence may arise. But so long as the Minister only asks the electors to vote for a particular candidate belonging to his party and puts forward before the public the merits of his candidate it cannot be said that by merely making such request to the electorate the Minister exercises undue influence. The fact that the Minister's request was addressed in the form of what is called a whip is also immaterial so long as it is clear that there is no compulsion on the electorate to vote in the manner indicated. 286. In that case, the Court thus envisaged that the question of undue influence will arise if there is some sort of compulsion on the electorate to vote in the manner indicated by the person alleged to have committed that corrupt practice, and a question of such compulsion can obviously arise only when a voter, having made his cho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s opinion on the individual merits of the candidates. Such a course of conduct on his part will only be a use of his great influence amongst a particular section of the voters in the constituency; but it will amount to an abuse of his great influence if the words he uses in a document, or utters in his speeches, leave no choice to the persons addressed by him, in the exercise of their electoral rights. If the religious head had said that he preferred the appellant to the other candidate, because, in his opinion, he was more worthy Of the confidence of the electors for certain reasons, good, bad or indifferent, and addressed words to that effect to persons who were amenable to his influence, he would be within his rights, and his influence, however great, could not be said to have been misused. But in the instant case, as it appears, according to the findings of the High Court, in agreement with the Tribunal, that the religious leader practically left no choice to the Namdhari electors, not only by issuing the hukam or farman, as contained in Ext. P. 1, quoted above, but also by his speeches, to the effect that they must vote for the appellant, implying that disobedience of his mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir electoral right by the voters was interfered by physical act of assault and threat on voters who intended to vote for the rival candidate. 290. The last case of this Court which may be referred is the decision in Manubhai Nandlal Amersey v. Popatlal Manilal Joshi and Ors. [1969]3SCR217 ., in which the effect of a speech came up for consideration and it was held :- The actual effect of the speech is not material. Corrupt practice is committed if the speech is calculated to interfere with the free exercise of electoral right and to leave no choice to the electors in the matter. In considering the speeches, the status of the speaker and the character of the audience are relevant considerations. This case also, thus, envisaged that there must be some element of compulsion on the voter to vote in a particular manner before the act said to be a corrupt practice can be held to amount to undue influence. 291. Coming to the decisions of the High Courts, the first case that may be cited is the decision of the Orissa High Court in Radhakanta Mishra v. Nityananda Mahapatra and Anr. 19 E.L.R. 203. Barman, J., explained undue influence in the following words :- A voter mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held :- The picture of the dead boy with the caption was a direct charge against the Congress that it killed the deceased boy. This was a misrepresentation of fact. It was as a result of firing by the police that the boy unfortunately got involved. We do not know whether the Congress Party took a stern view of the firing, whether the Congress Party itself condemned the firing, and whether ultimately those responsible for the firing were reprimanded and punished for the unfortunate incident. The catchy caption that the Congress killed the boy was false representation made by the respondent No. 1 with intent to strike terror into the mind of the voters and thereby to interfere with the free exercise of electoral right of such terror-stricken voters. The picture with the caption was a distortion of a situation for political ends done with the intention as aforesaid. It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in their mind a feeling of terror, fear, hatred or strong prejudice against the Congress. In the caption under the dead boy's picture was a veiled threat to the voters that if they voted for the Congres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it by saying that, in his opinion, this was a farfetched argument. He further held :- The picture simply represents Sunil De after being shot at by the police firing with the caption underneath Do not vote for the Congress who killed Sahid Sunil It does not say that, if the voter give their votes for the Congress, all the voters or some of them would be shot as Sunil De. Further, the shooting of Sunil De is known to everybody and that is on account of police-firing in connection with the States Reorganisation Committee Report's disturbances, the voters therefore cannot be influenced to think by publication of this poster that if they voted for the Congress they would be shot at like that. It is also significant that there is nothing mentioned about this poster in the election campaign in the booklet on whose cover the photo is printed. The respondent No. 1, therefore, could not have intended to cause fear in the minds of the voters by publication of exhibit 3 in order to interfere with the free exercise of their votes. Das, J., dealt with this aspect as follows :- Nothing has been stated in the body of exhibit 3 relating to this picture. The picture simply repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, because it was held that, even if there be no compulsion at all, the inducement must be of such powerful type as would leave no free will to the voter in the exercise of his electoral right. The freedom of will envisaged, obviously is to vote in accordance with his choice. On the facts in that case, it was found that in the poem, there were threats against Raja of Kalahandi in whom the defeated candidate was interested. After referring to the Raja of Kalahandi, the objectionable portion read as follows :- Without any consideration for your own and others, you acted as a devil. Would anybody now be able to save you if you are beaten mercilessly ? Having done all the above mischiefs, now you are appealing to the electors for their vote as a shameless person. If there were a grain of shame left in you, you would not have progressed at all. You are a thief and a Badmas and you should not remain our land. You who belong to the Ganatantra party are only fit for the gallows. These words, clearly, contained a threat to the life and were, therefore, rightly held to amount to exercise of undue influence. Similarly, another portion was to the following effect : The leader o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g too weak to resist the importunity and in view of the pressure exercised on his mind he could not act intelligently and voluntarily and had become subject to the will of the other who had thus obtained dominion over his mind. This exposition of the scope of undue influence is also in line with the view taken above. It envisages that the corrupt practice of undue influence is committed when a person is constrained to do against his will and is unable to act in accordance with his judgment. Such a position can only arise if the influence is brought on the person concerned after he has already formed his judgment and decided how he will exercise his electoral right. Propaganda for the purpose of influencing the judgment, even if undesirable, cannot be held to be undue influence. 299. Coming to the cases of Election Tribunals, the earliest case that needs consideration is the decision in Sardul Singh Caveeshar v. Hukam Singh and Other's (supra). In that case, the Tribunal held :- It is not necessary that there should be any actual threat or physical compulsion held out, but the method of inducement as may be adopted should convey to the mind of the person addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with his free will and that free will is interfered with. The Tribunal's decision is also, thus, in line with the view taken above. 301. The next decision of a Tribunal, on which reliance has been placed is in Radha Krishna Shukla and Anr. v. Tara Chand Maheshwar and Ors. E.L.R. 378.; but that decision appears to be of no help as, in that case, replying on a English decision, the Tribunal held that, before a threat can be said to amount to undue influence, the question must be put, was it a serious and deliberate threat uttered with the intention of carrying it into effect, and proceeded to apply that test to the case before it. The Tribunal, therefore, dealt with a situation where there was clearly a threat to the voters but even the threat in question contained in the slogan was held not to constitute corrupt practice, as there was nothing to show that the purpose of the slogan was to directly or indirectly interfere with any person's free exercise of his electoral right. 302. In Amir Chand v. Smt. Sucheta Kripalani 18 E.L.R. 209., the Tribunal, after quoting the definition of undue influence contained in Section 123(2) of the Representation of the People Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence, no witness stated that, as a result of reading this pamphlet, he apprehended any adverse consequence either to himself or to anyone in whom he may be interested. No doubt, some witnesses stated that, on reading the pamphlet, they felt that, if Shri Sanjiva Reddy is elected as President, the Rashtrapati Bhavan may become a brothel; but that also does not amount to a threat of a nature which would constitute undue influence as explained above. Consequently, the publication of this pamphlet cannot constitute undue influence, so that it is totally unnecessary to go into the question whether it was printed, published and distributed at all; if so, by whom, and, further, whether such printing, publication or distribution was or was not with the connivance of the respondent. As I have held earlier, in the Act there is no provision made for setting aside election on the ground of publication of false statements as to the personal conduct or character of a candidate even if it affects his prospects in the election, so that no evidence need have been taken with regard to the printing, publication or distribution of this pamphlet or with regard to the question as to whether there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prehensive than Petition No. 4 I prefer to refer to the allegations made in Petition No. 5 alone. Leaving out of account the technical grounds on which the election has been challenged, the petitioners have asked for a declaration that the election be declared void on the following grounds : (a) that the offence of undue influence at the election had been committed by the returned candidate (hereinafter referred to as the 'respondent') and by his supporters with the connivance of the respondent as mentioned in paragraph 8(a) and various sub-paragraphs of 13(b) and (c) of the Petition. (b) The result of the election was materially affected by reason of the offence of undue influence at the election having been committed by persons mentioned in paragraph 13 of the petition. 310. Undue influence is alleged to have been committed in diverse ways on various persons details whereof are given hereinafter. 311. Paragraph 13 of Petition No. 5 purports to give a summary of the events which are alleged to have formed the background in which the offences were said to have been committed. Put briefly they are as follows : ( 1) After the demise of the late Dr. Zakir Hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the promulgation of the Bank Nationalisation Ordinance, a day before Parliament was to commence its session. This Ordinance was signed by the respondent acting as President. (6) On the 22nd July 1969 the Prime Minister proposed Sri Sanjeeva Reddy as a candidate for the office of the President of India which was duly seconded by Sri Swaran Singh, a Cabinet Minister. (7) The Prime Minister however expressed difficulty in issuing a written appeal in support of the candidature of Sri Sanjeeva Reddy. (8) At a meeting of the Board held on August 6, 1969 there was a joint address by the Prime Minister and the Congress President, Sri Nijalingappa, in support of Sri Sanjeeva Reddy's candidature. At this meeting the Prime Minister stated that she stood by the decision of the party while on his part Sri Nijalingappa said that he had been in contact with leaders of various opposition parties, namely, the P.S.P., the S.S.P., the Jan Sangh, B.K.D. and others and that the response in favour of Sri Sanjeeva Reddy had been encouraging . (9) On August 9, an anonymous pamphlet in cyclostyled form and a printed pamphlet both without the name of the publisher or the printer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious consequences with the object of unduly influencing them so as to make them change their decision to nominate Sri Sanjeeva Reddy as their candidate. The threat is alleged to have been repeated subsequently on a number of occasions. It was also said to be a direct attempt to dissuade Sri Sanjeeva Reddy from standing as a candidate. (b) In paragraph 13(b)(iii) of the petition it was stated that with the object of interfering with the free exercise of the electoral rights of Sri Sanjeeva Reddy, Sri Nijalingappa, Sri Kamaraj and others, electors at the election, supporters of the respondent viz., Sri Jagjiwan Ram, Sri Yunus Saleem, Sri Sashi Bhushan, Sri Krishna Kant, Sri Chanresekhar, Sri Jagat Narain, Sri Mohan Dharia and Sri S.M. Banerjee in particular and other supporters and workers of the respondent in general, with the consent and connivance of the respondent published by free distribution a pamphlet, annexure A-38 to the petition, in Hindi and English, in cyclostyled form as well as in printed form in which serious allegations, as already noted, were made amounting to the commission of undue influence upon the persons named within the meaning of Section 171C I.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over all the Muslim electors In the country and specially those in Parliament. An instance of this is given as having taken place between Sri Yunus Saleem and Sri Abdul Ghani Dar. (h) The workers and supporters of the respondent became desperate and demanded freedom of vote at the election so that the members of the Congress party may not feel themselves bound by their party affiliation to vote for Sri Sanjeeva Reddy. It was stated that such a scare was created that the President of the U.P. Congress Committee, Sri Kamlapati Tripathi and the Chief Minister Sri C.B. Gupta who had on August 6, 1969 addressed a meeting for solidly backing Sri Sanjeeva Reddy changed their stand and on the 13th August, 1969 Sri Kamlapati Tripathi also pleaded for freedom of vote. (I) According to paragraph 13(c)(v) a scare was raised and undue influence exercised on the minds of the members of the Legislative Assembly of Bengal that if successful Sri Sanjeeva Reddy would enforce President's Rule in Bengal wiping off the United Front Government and the legislative assembly. According to paragraph 13(c)(vii) a similar scare was raised with regard to enforcement of President's Rule in And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck on the personal conduct or character of Sri Sanjeev Reddy. He said further that he had approved of the taking over of the portfolio of Finance from Sri Morarji Desai on the 16th July on the recommendation of the Prime Minister but the signing of the Bank Nationalisation Ordinance had nothing to do with the Presidential election. He stated in clear terms that he had no knowledge of any of the statements relating to printing, publishing and distribution of the unsigned pamphlet, whether printed or otherwise and he completely dissociated himself therefrom. He denied the insinuation that he had anything to do with the Prime Minister's alleged call for a free vote to get support for himself. He characterised the allegations regarding the publication and distribution of the pamphlet mentioned in the petition by anybody as his supporters or workers with his consent and connivance, as reckless, wild and false. He denied having received any letter from Sri Abdul Ghani Dar as mentioned in the petition or any copy of the pamphlet. He denied ever having hinted in any of his public addresses anything derogatory to the personal conduct or character of Sri Sanjeeva Reddy. With regard to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August 1969 in the Central hall of Parliament. With regard to the telephone calls by Ministers exercising undue influence over the members of the electoral college referred to in paragraph 13(c)(i) about 30 M.Ps. were named as having been so contacted by 11 named Ministers including the Prime Minister, Sri Fakhrudin Ali Ahmed, Sri Jagjiwan Ram, Sri Yunus Saleem and Sri I.K. Gujral. With the exception of three of them, namely, Sri Fakhrudin Ali Ahmed, Sri Yunus Saleem and Sri Gujral, no attempt was made to substantiate the above. I do no think it necessary to dilate more on the correctness of the particulars and the attempt to establish the same except to say that little effort Was made to establish the allegations which were verified either as true to the knowledge of the deponent, Sri Abdul Ghani Dar or as being based on information received by him from the persons named, some of whom were called as witnesses but did not support the version of Sri Abdul Ghani Dar as given in the particulars. For the sake of convenience issue No. 4 is reproduced below Issue 4 in Election Petitions Nos. 4 and 5. (a) Whether all or any of the allegations made in paragraphs 8(e) and 13(a) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly affected- (i) by reason that the offence of bribery or undue influence at the election has been committed by any person who is neither the returned candidate nor a person acting with his connivance; * * * (ii) * * * The Supreme Court shall declare the election of the returned candidate to be void. (2) For the purposes of this section, the offences of bribery and undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code (Act 45 of 1860). 323. Section 21 contained in part IV provides for the making of rules to give effect to the Act. The provisions in the Constitution and the Presidential and Vice-Presidential Elections Act of 1952 and the Rules framed thereunder form a complete code relating to such elections and all doubts and disputes regarding the validity of such elections which can be adjudicated upon by the Supreme Court must arise within the limits specified thereby. 324. Chapter IX-A of the Indian Penal Code which deals with offences relating to elections was introduced by the Indian Elections Offences and Inquiries Act. 39 of 1920, Section 2. Section 171A in that part defines candidates and electoral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most salutary provision. On the facts of this case the vital question before us is, whether the mere publication of a false statement highly derogatory of the personal conduct or character of a candidate or the dissemination of a scurrilous pamphlet depicting a candidate as one of lecherous character will fall under Sub-section (1) of Section 171C or whether in order to prove the commission of the offence the election petitioner must go further and establish that there was an attempt on the part of some persons to interfere with the free choice of a candidate on the part of the voters by making use of the pamphlet so as to deflect their will and restrict their choice to persons other than the one defamed. 326. Undue influence is an old and well known English legal concept. Before the expression came to be used in litigation over elections it had acquired a definite significance to English lawyers although its exposition in common law was somewhat different from that which the equity lawyers gave it. The concept was developed along a particular line by Judges in England trying election disputes and our Indian law has by and large followed the same pattern. According to Anson ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, some form of cheating, and generally, though not always, some personal advantage obtained by the guilty party. 332. So far as the English Law of Elections on which principally our election laws are based is concerned, reference may be made to some of the well-known text books on the subject. According to Rogers Parliamentary Elections and Petitions, 20th Edn. Chapter XI p. 325 : In England corruptly influencing a voter, whether by the more direct and grosser form of treating or the more indirect and subtler form of wagers was always an offence as a species of bribery; but unduly influencing a voter was not, before the 17 and 18 Vict, c. 102, an offence in the strict sense of the word, although its prevalence is mentioned in many resolutions of the House of Commons, and many statutes have been passed to prohibit the evil in particular instances; and although a vote unduly influenced is void at common law, and will be struck off on a scrutiny. The learned author goes on to add : As early as 3 Edw. 1, c. 5, which is declaratory of the common law, thus, in affirming the vital principles of freedom of election, said, Because election ought to be free, the King comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voting. 335. Under Section 91(1) of the Representation of the People Act, 1949 : Any person who, or any director of any body or association corporate which, before or during an election, shall, for the purpose of affecting the return of any candidate at the election, make or publish any false statement of fact in relation to the personal character or conduct of the candidate shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true : 336. It will thus be noticed that in England the law of undue influence as regards elections is somewhat akin to that branch of the law as expounded by the courts of equity and both have a common facet, namely, the inducement of a person to act otherwise than under his free will by resort to any fraudulent device or contrivance. 337. Coming now to our Indian law, Section 16 of the Contract Act which came on the statute book in 1872 laid down by Sub-section (1) that A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undue influence as defined in Section 171C and the definition of that expression in Section 123 of the Representation of the People Act, 1951-another Parliamentary Act. Under the Act of 1951 undue influence is defined as follows in Section 123(2) : Undue influence, that is to say, any direct or indirect interference or attempt to interference on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right : Provided that- (a) Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who- (i) threatens any candidate or an elector or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or (ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with his connivance it was not to affect the election unless the result of it had been materially affected by such malpractices. So far as this branch of the law is concerned the only difference between the Act of 1951 and the Act of 1952 lies in the fact that under the latter Act corrupt practices of bribery or undue influence by one who was not a party to the election or his agent are also brought in. But the nature and character of undue influence under both the Acts remains the same. I see no reason for taking a view that what would not be undue influence under the Act of 1951 can become one under the Act of 1952. 340. If publication of defamatory matter relating to a candidate was to be treated as a direct or indirect interference or attempt to interfere with the free exercise of any electoral right under the wide words of Section 171C(1) there would have been no occasion for the legislature to provide for it separately under Section 123(4) of the Act of 1951. In my view the same position would obtain under the Act of 1952 and before any publication of a defamatory matter relating to a candidate can be treated as commission of the offence of undue influence there must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublication would attract the operation of Section 171C(1) of the Indian Penal Code. It would also fall within the definition of undue influence in Section 123(2) of the R.P. Act of 1951 and the definition given in Clause 2 of the Corrupt Practices Order, 1936. 342. I may now proceed to note some of the reports of Election Commissions under the Corrupt Practices Order 1936 before examining mere recent decisions. In Amritsar City (Mohammadan) Constituency-Sh. Mohammad Sadiq v. Dr. Saifuddin Kitchlew before the Second Election Petitions Commission Bench the scope of undue influence uncle the first Schedule to the Corrupt Practices Order, 1936 came to be considered. It was the case of the petitioner that one Feroze-ud-Din Ahmed by administering oaths to his audience which included numerous voters, restricted their choice to the returned candidate Dr. Kitchlew, under pain of spiritual penalties and thereby interfered with the free exercise of their right to vote. Counsel for the respondent argued that the element of compulsion was an essential ingredient of the corrupt practice of undue influence and contended that it was not even alleged that Feroze-ud-Din Ahmed had compelled his au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner there was that one Maulana Zaffar Ali Khan by making an appeal to the voters restricted their choice to Mohammad Sadiq under pain of spiritual penalties and even otherwise and thereby exercised undue influence in the free exercise of their right to vote In the opinion of the Commissioners an inducement could not amount to undue influence unless it was of such a powerful type as would leave no free will to the voter in the exercise of his choice. In Lyllapur and Jhang General Constituency Case No. 2 one of the questions canvassed was whether fraud was a corrupt practice within the meaning of Government of India (Provincial Legislative Assemblies) Order 1936, paragraph 4-B. According to the Commissioners fraud may in some cases come within the ambit of the corrupt practice of undue influence. Referring to the definition of undue influence in the said order the Commissioners observed : It is obvious that the definition of undue influence is very widely worded and covers all kinds of fraudulent acts or omissions which, in any way directly or indirectly interfere with the exercise of any electoral right. The definition in the English Act specifically makes a fraudulent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wspaper to the effect that the respondent Smt. Sucheta Kripalani was going to be taken as a Rehabilitation Minister in the forthcoming Union Cabinet after the election thereby giving currency to the rumour amounted to undue influence as contemplated under Section 123(2) of the Representation of the People Act. The view taken by the Tribunal was that (p. 252) : The so-called device namely, that some one from Lucknow sent the news as a rumour or opinion of the member of the Congress High Command, does not fall within the ambit of the definition. in Section 123(2). It was said that though the definition was no doubt in general terms it had an element of compulsion and it was an abuse of influence that would constitute undue influence. 345. In Kataria Takandas Hemraj v. Pinto Frederick Michael 18 E.L.R. 403. an appeal was made to Maharashtrians not to vote for the Congress Government had resorted to firing and killing Maharashtrian leaders for demanding a separate Maharashtra State and photographs of martyrs who had been killed were attached to the appeal and it was even stated that the ballot box of the Congress Party was filled with the blood of Maharashtrian martyrs. Nega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the voters. The learned Judge was in favour of allowing the appeal but his colleague, Rao, J. expressed a different view. According to him (p. 234) : The picture simply represents Sunil De after being shot at by the police firing with the caption underneath 'Do not vote for the Congress who killed Sahid Sunil.' It does not say that if the voters give their votes for the Congress all the voters or some of them would be shot as Sunil De. 347. The matter was referred to Das, J. by the Chief Justice in view of the difference of opinion between Barman and Rao, JJ. According to this Judge no undue influence was exercised because nothing had been stated in the photo Ex. 3 relating to the picture and there was no statement that if the voters gave their votes to the Congress, they would be shot at as Sunil and accordingly respondent No. 1 could not have intended to cause any fear in the minds of the voters by the above publication to constitute interference with the free exercise of the electoral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges stressed what was material under the Indian law was not the actual effect produced but the doing of such acts as were calculated to interfere with the free exercise of an electoral right. 349. In Inder Lal v. Lal Singh [1962] Su. 3 S.C.R. 114. the charge against the returned candidate was that he had been guilty of the exercise of undue influence inasmuch as a pamphlet containing a false statement that the respondent No. 2 was purchaser of the opponents of the Congress by means of money was issued by the agent of the respondent with his consent. Respondent No. 1 contended that the statement related to the public or political character of respondent No. 2 and not to his private character. In his judgment, Gajendragadkar, J. said (p. 122) : Circulation of false statements about the private or personal character of the candidate during the period proceeding elections is likely to work against the freedom of election itself inasmuch as the effect created by false statements cannot be met by denials in proper time and so the constituency has to be protected against the circulation of such false statements which are likely to affect the voting of the electors. With re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 350. The above citation of the cases is in our view sufficient to reject the contention of Mr. Daphtary that in order to establish undue influence it must be shown that there was some threat to a voter or at least an element of compulsion in the appeal to him. The cases also show that it would be futile to attempt to lay down a simple test applicable to all sets of facts and circumstances where undue influence is alleged to have been exercised. It can however be said that an attempt on the part of anybody to deflect a voter's will away from a particular candidate by creating prejudice against or hatred for him, as for instance by casting false aspersions on his personal character and conduct whether by spoken words or in writing may be sufficient for the purpose of establishing the commission of undue influence. Much would however depend on the nature of the attempt, the position of the person making it and the manner in which it is made. The mere publication by postal despatch of an anonymous but scurrilous pamphlet regarding the personal character of a candidate to voters all and sundry might attract the operation of Section 171G of the Indian Penal Code but would fall sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficult to find suitable words to condemn the making and publication of such a vile pamphlet in an election to the highest office in the land and it is certainly a great pity that the authors thereof have not been tracked or suitably dealt with. 351. Having concluded that the use of scurrilous pamphlet of the type disclosed in this may be a step in the commission of undue influence within the meaning of Section 171C of the Penal Code, I have to consider the evidence adduced to find out the extent of its publication and the manner in which it was published and used before it can be held that undue influence was in fact brought to bear upon the minds of certain electors. One has next to ascertain whether the offence of undue influence was committed by the respondent or by any of his workers with his connivance. It neither of these be proved, we have to shift the evidence to see whether the offence was committed by others to an extent which materially affected the result of the election. 352. Counsel for the parties argued at some length on the question as to the standard of proof required to establish the commission of the offence of undue influence. As the malpractice is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probabilities but on the strength of the direct evidence adduced. 354. This question has engaged the attention of this Court on prior occasions and reference may be made to some of them to see the views expressed therein. In Mohan Singh and Ors. v. Bhanwarilal and Ors. [1964]5SCR12 . where charges of corrupt practice had been leveled it was said : The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which is clear had unambiguous. 355. Much to the same effect was the decision of this Court in Jagdev Singh v. Pratap Singh [1964]6SCR750 . 356. In Samant N. Balakrishna etc. v. George Fernandez and Ors. etc. [1969]3SCR603 . it was said (see at p. 637) : Although the trial of an election petition is made in accordance with the CPC, it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection may be set aside on the ground of the commission of undue influence by persons who are not agents of the returned candidate and whose action has not been connived at by him if the court finds that the result of the election has been materially affected by the commission of undue influence by outsiders and complete strangers to the election. The analogy of the trial of an election petition with that of a criminal charge cannot be pushed too far. There are inherent differences between the two in the matter of investigation. The vital point of identity in the two trials is that the court must be able to come to a conclusion beyond any reasonable doubt as to the commission of a corrupt practice. The court looks for reliable independent evidence to establish charges of a criminal nature but unfortunately such evidence is found to be lacking in a great many cases. It is well-known that even in cases where persons are charged with murder, independent witnesses fight shy of the witness box and are not called to support the prosecution case; the Judge hearing such a case has to make up his mind on the evidence of witnesses who are partisan in the sense that they are related to the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he economic progress of the country. It came out clearly in the evidence of Sri Shankar Dayal Sharma (a witness for the respondent) and a member of Madhya Pradesh Legislative Assembly who had been in public life for about 32 years. He became a member of the All India Congress Working Committee in January 1968 and was appointed General Secretary of the Indian National Congress in April 1968. He continued in that post till the 1st November 1969 when he submitted his resignation at the request of the then Congress President, Sri Nijalingappa. His evidence which was not challenged in cross-examination shows that at Faridabad session a new procedure was adopted for splitting the A.I.C.C. into three panels. In the economic panel serious differences arose between the members specially between the Chairman, Sri Morarji Desai and some of its members and no report could be finalised. According to the witness there was a demand for nationalisation of banks by some members which was resisted by the Chairman and some others. It is not necessary to mention the various points of difference between the members of the panel but according to this witness the Prime Minister and Sri Morarji Desai held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent, the under current of difference between the parties since the Bangalore Session of the Congress came to the surface early in August 1969, the decisive factor being Smt. Tarkeshwari Sinha's article in the Search Light suggesting a move to throw out the Prime Minister. According to Sri Gujral many people were of the view that the Congress President Sri Nijalingappa had tried to make a deal with Sri Ranga of the Swatantra Party and Jan Sangh for a coalition Government and the election of Sri Sanjeeva Reddy as President was considered to be a step in that direction. 361. That there was a sharp difference of opinion and the arraying of members into two warring camps at or about that time admits of no doubt or dispute. Whoever be the authors or the printers of it, the distribution of the pamphlet started round about 9th or 10th August. From the 11th August correspondence started between Sri Jagjiwan Ram and Sri Fakhruddin Ali Ahmed on the one side and Sri Nijalingappa on the other, as well as between the Prime Minister and Sri Nijalingappa. As a matter of fact the correspondence between the Prime Minister and Sri Nijalingappa had started as early as 16th July. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent, a candidate nominated by the Communists and Communalists. 362. No useful purpose will be served by referring to the said correspondence in detail and mention has been briefly made of the same only to bring out in sharp focus the difference between the two groups. Members of the two groups who have appeared as witnesses in this case had definitely taken sides some days before the date of the poll. According to some witnesses examined on behalf of the respondent, the manner of selection of Sri Sanjeeva Reddy was against all past traditions of the Congress as no attempt at consensus was made before the matter was put to vote. Some even felt that the Prime Minister should not have been over-borne in the way she was done on the 12th July. Whatever might be the individual reactions of the members of the two groups, there is no gainsaying that there was a strong current of opposition to the election of Sri Sanjeeva Reddy as President of India and more than one witness for the respondent including Sri Yunus Saleem admitted that there was a campaign for getting signatures of members of Parliament on a document demanding the right to vote freely in the election. This in effect me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moral person, Sanjeeva Reddy as the Congress candidate for the august post of President of India and (c) (his selection was made not only against the wishes of the Prime Minister of India but also without caring to consult the Congress Working Committee, Pradesh Congress leaders and the addressees. The pamphlet then seeks to analyse the reason behind this choice. To quote the words of the pamphlet itself : That is because Sanjeeva Reddy himself belongs to this gang. Also the syndicate's plan is that if Sanjeeva Reddy could be made President of India then it will be easier to block all enlightened measures; as President he will obstruct the present Government at every step whenever any action is taken against corruption or in the interest of the common people. The syndicate's agents in Parliament have been openly saying that if Sanjeeva Reddy becomes the President, they will drive out Smt. Indira Gandhi in a few weeks. They are all the more enraged at the nationalisation of the 14 big banks which were only helping big capitalists to profiteer and amass black money. The syndicate is scared that such measures would make Indira Gandhi more popular with the common man while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole of the pamphlet which is a fairly long one, there is no reference to any other party excepting where Sri Nijalingappa is described as having approached the Swatantra and Jan Sangh for a coalition Government. There is no reference to the respondent or any other candidate at the election and there is no attempt to belittle or ridicule the members of any of the many other political parties in the country. 367. At or about this time there was frequent reference in the daily newspapers to a group in the Congress dubbed as syndicate and another group described as young Turks who were in open rebellion against the syndicate. The pamphlet shows that the authors thereof were of the view that the Prime Minister was attempting to give what according to them was a correct lead to the country and that she was sought to be thwarted by the members of the syndicate. So much so that the latter were said to have entered into a conspiracy to oust the Prime Minister from her position and set up a coalition government. This is sought to be supported by writing ascribed to Smt. Tarkeshwari Sinha as openly threatening the defeat of the Prime Minister by the syndicate. There are thus strong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and unscrupulous persons had grabbed power in the Congress organisation after the death of Pandit Nehru and it was because of their misdeeds that the party had suffered reverses in the election of 1967. It should be noted that Mohan Dharia's attitude in the Presidential election somewhat different from that of the other young Turks. It would appear that the proclivity of this group of persons described as young Turks and their support for the Prime Minister and opposition to the senior members of the Congress fold like Sri S.K. Patil, Sri Kamaraj and others was sought to be utilised in the election petitions by openly averring that the supporters of the Prime Minister were behind the publication and dissemination of the impugned pamphlet. The evidence adduced does not bear this out. 369. The authorship of the pamphlet not being traced, we have to see whether the dissemination of it in the manner deposed to was sufficient to establish the commission of undue influence. I have no doubt that if the statements contained in the pamphlet were made the subject of a verbal appeal by one member of the electoral college to another and particularly those in the Congress fold a very st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bering no less than twenty gave evidence to the effect that they never saw any such distribution. Effort was made by counsel for the respondent to establish by cross-examination that such distribution of the pamphlet would not have been allowed by the Watch and Ward department of the Houses of Parliament. Among the persons who were supposed to have been responsible for the distribution in the Central hall of Parliament the prominent figures were Sri Yunus Saleem, Sri Chandrasekhar, Sri Sashi Bhushan, Sri Mohan Dharia and some others. It is somewhat strange that most of these people when examined not only denied having participated in the distribution but went to the length of stating that they had never seen the pamphlet before they came to court, although some admitted having heard discussion between members regarding it. According to some witnesses for the petitioners prominent among whom were Sri Morarji Desai, Sri S.K. Patil and some others, the pamphlet was the talk of the town for days and the Central hall of Parliament was full of it. 370. There is thus a direct conflict of testimony about the distribution of the pamphlet but there can be little doubt that the pamphlet di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na Kant had told him anything at the tune he said that Sri Krishna Kant had only mentioned what was in the pamphlet. Sri M.P. Venkataswamy Naidu P.W. 17 claimed to have received a copy from Sri Yunus Saleem in the Central hall. He also said that he wanted to meet the respondent to ask him to contradict the pamphlet because his supporters were distributing it. He went to the respondent's house in Defence Colony but did not succeed in contacting him and wrote a letter requesting him to contradict the contents of the pamphlet but he had never communicated to the petitioners the fact of having written such a letter. Sri Nanubhai N. Patel. P.W. 26. a member of the Lok Sabha said that Sri Sashi Bhushan, Sri Chandrasekhar and Sri Yunus Saleem were distributing the pamphlet about 12th or 13th August. When they came to the witness to give him a copy he told them that he had already received one at his flat whereupon they asked him whether he had gone through it thoroughly. On the witness's answering in the affirmative they asked him to be careful and to consider all the facts before voting. Sri Mohanlal Gautam who was elected to the Rajya Sabha on the 13th August 1969 and taken his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on being informed by his daughter that a telephone call had come from the respondent. The respondent had asked the witness to support him which the latter refused. The witness however claimed to have told the respondent that pamphlet like the one he had received should not be used and should be contradicted by his party whereupon the respondent had sought to excuse himself by saying What can I do. Although he had seen the pamphlet being distributed in the Central hall he did not remember who were doing it. Sri D.S. Raju, P.W. 49, a member of the Lok Sabha, said that he had received a copy in the Central hall of Parliament and so far as he could remember it was Sri Yunus Saleem who had passed it on but had not spoken to him at the time of making it over. Sri Patil Putappa, a member of the Rajya Sabha, P.W. 50, said that he had seen Sri Yunus Saleem distributing the pamphlet in the Central hall and had received a copy from him. He claimed to have told Sri Yunus Saleem that the latter was acting improperly whereupon Sri Yunus Saleem had rebuked him saying that it was none of the witness's business. Sri Ramreddy, P.W. 54, one of the petitioners in Petition No. 4 said that he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h on the face of it barring that of Sri Abdul Ghani Dar, falls far short of a personal appeal or any effort to persuade a voter by deflection of his will and interference with his electoral right. Sri Yunus Saleem as well 35 the other persons commonly referred to as young Turks stoutly denied having ever engaged themselves in any distribution of the pamphlet and most of them disclaimed ever having come across it before they figured as witnesses in court. Sri Abdul Ghani Dar's statement in the witness box about Sri Yunus Saleem having taken him aside for making an appeal is directly contradicted by a statement in the petition where in paragraph 13(b)(iv) he bad stated that his talk with Sri Yunus Saleem had taken place in the presence of a number of members of Parliament. It would be expected that Dar would remember the facts of the distribution more clearly on the 16th September 1969 when the petition was filed than when he came to the witness box in March 1970. Whatever be the reason for the deviation in the Statement on oath before the court from that in the petition it does not inspire confidence. 374. The witnesses for the respondent adduced various reasons in their leng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the election so that there could be no effective counter action to the wild propaganda. Whatever the charges raised against the Prime Minister in the petition no evidence was adduced to show that she was helping the respondent although it may be said that she did not help the cause of Sri Sanjeeva Reddy in the way she had done in the case of Dr. Zakir Husain. Three witnesses for the petitioners stated in their examination that they had been to the respondent's house in Defence Colony after the commencement of the publication of the pamphlet requesting him to make a state himself in contradiction of the allegations contained therein and making it clear that he himself had nothing to do with it. It is difficult to appreciate what led these persons to think that the respondent had anything to do with the pamphlet or that he was the proper person to issue a contradiction to the imputations therein made against Sri Sanjeeva Reddy, As I have already noted, the name of the respondent does not occur at all in the pamphlet nor is there any remote reference to him in it. The respondent was not the only other contestant for the office. Sri Madhu Limaye, P.W. 8, and some witnesses for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the mere dissemination of a sordid pamphlet. In the circumstances of the case it would be useless to go into the question any further. 378. Another allied question which loomed large during the examination of the witnesses was whether the respondent had in his election campaign gone to Lucknow and addressed members of the Legislative Assembly there and canvassed their support in his favour basing his claim on the support of the Prime Minister. This was deposed to in a general way by Sri Ram Singh P.W. 19 while Sri Mumtaz Mohamed Khan P.W. 44 went further and said that the respondent had told people at Lucknow openly that Sri Sanjeeva Reddy was not a suitable candidate and that there were many stains on his character. Both these witnesses as also Sri Bansidhar Pandey, P.W. 18, Sri Jagdish Prasad, P.W. 20, Sri Rajendraprasad Singh, P.W. 21, Sri Basant Lal Sharma, P.W. 22, Sri Rampyre Panika, P.W. 37 and Sri Abdul Saleem Shah, P.W. 38 deposed to the effect that two or three days after the visit of the respondent to Lucknow, Sri Dinesh Singh, the External Affairs Minister, had also gone there, met the members of the Legislative Assembly in groups of four or five in their hostel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did speak the truth in that he did not go to Lucknow during the period 1st to 16th August. It has come out in evidence that Sri Abdul Ghani Dar was preparing to launch an election petition against the respondent practically immediately after the declaration of the result and that he was busy collecting evidence in support of his petition. Apart from the absence of any tour programme of Sri Dinesh Singh it should not have been difficult for the petitioners to produce evidence either from the records of the railways or the Indian Airlines to show that some reservation of accommodation had been made for Sri Dinesh Singh's journey to Lucknow and back at or about this time. No attempt was made to produce any such records. Counsel for the petitioners even went to the length of suggesting to Sri Dinesh Singh in cross-examination that it was possible for him to have travelled to Lucknow from Delhi by road and come back the same way so as to leave no record of reservation either by rail or by air. In my view, the suggestion is of little value. After all even according to the evidence of witnesses for the petitioners Sri Dinesh Singh's visit was not a secret one. He is supposed to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August only for a few hours. He admitted having gone to Lucknow on his tour but he did not meet the legislators there in groups as suggested by some of the witnesses but had spoken to them at a fairly well-attended meeting. He denied ever having referred to Sri Sanjeeva Reddy in his speech or said anything about his character. He denied having any knowledge of the distribution of the pamphlet and stated expressly that nobody had ever complained to him that a pamphlet against the personal conduct and character of Sri Sanjeeva Reddy was being distributed. He did not see Sri Abdul Ghani Dar's letter alleged to have been written to him on the 11th August. He did not meet the Prime Minister between the 20th July and 16th August. He said that he had published a programme of his intended tour to the capitals of the different States like Lucknow, Patna, Calcutta etc. and had informed some of his friends who were taking interest in him about his proposed visits. He stated further that although he had toured the States fairly extensively he did not approach the members of Parliament in Delhi personally as he was fairly well known to them. 381. Counsel for the petitioners tried to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him by Sri Yunus Saleem, that in spite of his warning the witness had decided not to side with the respondent and the Prime Minister and claimed to have addressed a letter to the Muslim members of Parliament in this regard. He also said that he had a talk with Sri I.K. Gujral early on the morning of the 16th August when the latter had told him that the Prime Minister expected full support from him and that if Sri Sanjeeva Reddy came out successful the Prime Minister might not continue in office and Dar also claimed to have sent a telegram to the Prime Minister immediately thereafter appraising her of all this. On his attention being drawn to the difference between the pleading and the oral evidence about the conversation with Sri Yunus Saleem and being asked to state which of the statements was correct the surprising answer was that both were correct. 384. Similarly, Sri Choudhary A. Mohamed P.W. 52 spoke of having received a telephone call from Sri Fakhrudin Ali Ahmed on the 10th or 11th August to the effect that Muslims stood to gain in the event of the respondent's success while the Muslim community would be in danger if Sri Sanjeeva Reddy came out successful in the ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted having suggested to Sri Abdul Ghani Dar that he should consider whether it would be advisable in the interest of democracy and socialism to support Sri Sanjeeva Reddy or the respondent. He further admitted having held discussion with many members of the Parliament both Muslim and non-Muslim on the question of the Presidential election but it would not be correct to say that he had approached only Muslim members as suggested or had appealed to anybody on the ground of threat to any particular community. In connection with the above a note may be made of the statement of some other Muslim witnesses. Syed Ahmed Aga R.W. 10, a member of the Lok Sabha from Kashmir said that he had seen people procuring signatures in the name of party discipline in support of Sri Sanjeeva Reddy's candidature and one such person was Sri Sher Khan, a witness in this case. Asked whether he had been contacted by any Minister of the Central Government to vote for the respondent in the interest of the Muslims his answer was in the negative. Evidence much to the same effect was given by Sri P.M. Syed, R.W. 13, Sri Asraf Ali Khan, R.W. 27 stated that there was no propaganda in favour of any of the candid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in this case I am not satisfied that such charges have been established or that the evidence of witnesses who have spoken about such propaganda must be accepted. 387. On the question as to whether the Prime Minister exercised any undue influence over Sri Nijalingappa, Sri S.K. Patil, Sri Kamaraj, Sri Morarji Desai and Sri Y.B. Chavan by threat of serious consequences following their resolution to nominate Sri Sanjeeva Reddy as the Congress candidate, it is undeniable that she was not a little vexed with the attitude of those persons in setting up as candidate Sri Sanjeeva Reddy when she herself had put forward the name of Sri Sri Jagjiwan Ram. Both Sri Morarji Desai and Sri Nijalingappa came to the witness box and deposed about the Prime Minister having used the words serious consequences would follow In one of the letters to the Prime Minister Sri Nijalingappa had mentioned this to which there was no reply. As the Prime Minister did not come to the witness box to give a denial to this the statements of Sri Morarji Desai and Sri Nijalingappa must be accepted. But the question still remains whether there was a threat to anybody's electoral right at that time so as to amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selves in hostile camps went on practically till the eve of the election. There was no evidence of any scare being caused by the commission of any undue influence. 390. Inasmuch as I have come to the conclusion that the evidence adduced does not establish the exercise of undue influence in the election in any of the forms raised in the petition, the question of the result of the election being materially affected thereby does not arise. But I may point out that in order to substantiate such a ground for setting aside an election it is not enough for witnesses to come and say that they were shocked or pained by reading the pamphlet as most of them gave out. Only two witnesses came to the witness box and said that they had changed their minds to vote for Sri Sanjeeva Reddy after perusal of the pamphlet. Mr. Daphtary argued that there was nothing in the Act of 1952 which forbade a person from disclosing in his evidence which way he had voted and that it was open to witnesses to come and state the reaction of the pamphlet on their minus and express how it had affected their conduct at the poll. While I do not think it necessary to express any opinion on this it can be safely held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally he could expect to get an award of costs in his favour. But one cannot overlook the fact that the bulk of the oral evidence in this case centered round the question as to whether there was publication of the scurrilous pamphlet in the Central hall of Parliament. A very large number of petitioners' witnesses came to give evidence in support of it while the respondent examined a host of witnesses to disprove this fact. Although in the view I have taken it was not necessary to name the persons who were guilty of such publication I have already indicated that quite a number of members of Parliament was responsible for it. The hearing of this case was protracted unreasonably by the examination of witnesses on this one question and as the respondent has not succeeded in disproving dissemination of the pamphlet in the Central hall it would not be right to make an award of costs in his favour. The litigation was not one of an ordinary type and it was conducted with great zeal on either side. It has divulged a sad lack of responsibility and uprightness in the elected representatives of the people figuring either as witnesses for the petitioners or as witnesses for the respondent In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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