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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 ..... ions 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 papers including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also be held to be valid. 11. Issue No. 1 in Election Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 1 and issue No. 7 in E.P. Nos. 4 and 5 of 1969 (a) Whether the elected members of the Legislative Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the respondent as alleged in paragraph 15 of the petition, and if so, whether it materially affected the result of the election? 24. We hold that no offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 January 23, 1970, we directed that the petitioners were not entitled to lead evidence on this sub-para because we were of the opinion that these allegations, even if accepted, did not constitute any interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 made to a letter issued by Shri Madhu Limaye, M.P., which he wrote to the Election Commission of India, protesting against the alleged pamphlet and requesting h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining 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 Sanjiva Reddy was elected he would enforce President's rule in Bengal, thus wiping off the United Front Government and the Legislative Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 not aware of the letter, Annexure A-39. In reply to sub-para (x) he said that this matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndue 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 persuasion of a voter to res train the free choice of a candidate before the law of undue influence is attracted. In our opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that in respect of an election for the highest office in the realm the election should be completely free from any improper infl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 elector in his freely casting the vote, and not in any act which precedes the second stage, i.e., during the stage when he is making his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 legitimate means. They may propound their programmes, policies and views on various questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions. The expression "electoral right" was defined in the same manner as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 to interfere, and it is nowhere laid down that such int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled "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. Persuasion may be quite legitimate and may be fairl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise 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 Congress candidate for the highest post?" It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 if the pamphlet is closely scrutinised th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 detail a little later. 82. Smt. Jayabehn Shah, M.P., P.W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 "th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r stated that he went with the pamphlet 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 Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, to this witness. 93. Shri C.M. Kedaria, M.P., 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid that she deposed wrongly because of political motives. He gave the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse talked to me as happens in the lobby." He admitted in cross-examination that he had no personal enmity with Shri Pande, Smt. Jayabehn 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buted the pamphlet. It is remarkable that in the particulars supplied by Shri Abdul Ghani Dar the witness is alleged to have received the pamphlet in the Central Hall of Parliament 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eem approached Shri Abdul Ghani Dar, member of Parliament, one of the petitioners herein, and talked to him in this behalf as stated earlier. This was said in the presence of a number of members of Parliament." 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t;, he said : "Because he is from the Mysore State and is under the influence of Shri Nijalingappa, perhaps in order to please him and gain his favour." The witness also referred to a report circulated by Shri Abdul Ghani Dar after his return from Haj in which Shri Abdul Ghani 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chavda, M.P., said that he received the pamphlet in his house and Shri Krishan Kant, member of Rajya Sabha, gave it to him in the Central Hall. He is one of me persons who entirely changed Ms mind about voting for Shri Sanjiva Reddy after reading the pamphlet. No cross-examination was directed in particular to the question 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nied having distributed copies of the pamphlet, either the English version or the Hindi version, to other persons in the Central Hall of Parliament. He described the evidence of Shri Suraj Bhan as mere concoction and the evidence of Shri Kachwai as totally wrong. It may be mentioned that on the morning of August 9 he went to Calcutta by plane and was hi Calcutta 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 unfounde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is cross-examination. He was asked whether he made any similar statement like the statement he made on August 9, 1969, and he replied that there was no occasion of meeting the press after the 11th. He was confronted with a despatch in the Times of India, dated August 12, 1969, from Patna which appeared in the Times of India on August 13, 1969, which reads : Three '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 occas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mphlet in the Central Hall, while Shri Amrit Nahata has flatly denied the allegation. Further Shri Venkatasubbiah was not very definite, though no questions were asked he cross-examination to elicit why he remembered Shri Amrit Nahata's name to some extent. Nor was any question asked to establish any personal or political animosity between Shri. Amrit Nahata and the two witnesses. His name 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han and Shri Jagjivan Ram came separately and Shri Jagjivan Ram also gave him a similar pamphlet. Shri Jagjivan Ram characterised this part of the evidence of Shri H.C. Kachwai as entirely and completely false. He further said that Shri Kachwai belonged to Jan Gangh, which party was, due to the Presidential election, more virulent about the Congress than usual. We may mention that he said that he did 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 Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing." 135. Shrimati Tarkeshwari Sinha, M.P., P.W. 34, said that she did not see the pamphlet being distributed but found that the pamphlet had become the subject-matter of discussion in the Central Hall amongst all groups and in the Ladies lounge where they generally went and sat. We will refer to her alleged visit to Shri V.V. Giri later. 136. Shri Ram Krishan Gupta, M.P., P.W. 43, said that he received 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to vote for Shri V.V. Giri, who is a candidate for the post of President. A signature campaign is also going on in the Parliament. Money is being offered to some members who vote for Shri V.V. Giri. 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. 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 responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goes down with shame. Therefore I request you that the motion presented by Shri Gupta Ji should be put to vote. False propaganda which is going on in the lobbies should be stopped. These statements obviously allude to the distribution of the pamphlet in the premises of Parliament. 145. Now let us look at the evidence of witnesses of the respondent other than those alleged to be distributors of the pamphlet in the Central Hall. Apart from the M.Ps. who are alleged to have distributed the pamphlet in the Central 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidential election on better considerations. Therefore, we ignored the pamphlet." He said that he belonged to the Congress Party headed by Shri Jagjivan Ram. In cross-examination he said : "There was discussion about this amongst some members of Parliament who had received it by post" and that he did not see the pamphlet in anybody's hand. 149. Shri R.K. Sinha, M.P., R.W. 8, in his examination-in-chief said that he did not see anyone distributing the pamphlet in the Central Hall, but there was some discussion 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament and there was wide discussion about it in the Central Hall. As we have mentioned earlier, the evidence of the witnesses of the petitioners that there was distribution in the Central Hall is corroborated by contemporaneous documents. 154. On the question as to who were the persons who were distributing the pamphlet in the Central Hall it is not, in our opinion, necessary for us to arrive at a finding from a mass of evidence which is both conflicting and partisan. The distribution of the pamphlet in the Central Hall was relied 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 circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dates noted against each and they brought this pamphlet to the notice of Shri V.V. Giri : 1. Shri Ram Krishan Gupta, M.P.-13-8-69 2. Smt. Tarkeshwari Sinha, M.P.-14-8-69 3. Shri N.P.C. Naidu, M.P.-13-8-69 4. Shri Hari Krishna, M.P.-14-8-69 8. (We may mention that Shri Hari Krishna was not examined). It will be noticed that in his evidence Shri N.P.C. Naidu does not say that he saw Shri V.V. Giri; there is also no proof that he ever wrote a letter. Shri V.V. Giri denied in the witness box having received any letter 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ony about two or three days before the election. He further said that he met Shri Giri and the following conversation took place : "Q. What was the talk between you two ? A. He asked me to support him and I refused that I am committed to Sanjiva Reddy. I am a congress man and congress had put up Sanjiva Reddy. Therefore, T must support him. Moreover, a party or candidate which issues such posters does not deserve any help. Q. What was his reply ? A. He said nothing; only this much that what can I do. Q. Did you ask him about this 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was present there-and we informed either Mr. Krishna Rao or the son of the President, whosoever was present and if they allowed him, we took him to the President in the drawing room where the President was sitting." He said that the drawing room door-a closable door-opened on the verandah from which they took the visitors. The further procedure was that after he had shown the visitor the door was closed as the room was air-conditioned. He further deposed that he knew Smt. Tarkeshwari Sinha by sight, that Smt. Tarkeshwari Sinha never came during his duty hours 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 6 and 7 sometimes 4 to 5 people came every day from August 13 to August 16. He said that among those who visited were Shri Krishna Menon, Shri Bhupesh Gupta, Shri Amar Singh Sehgal and Smt. Aruna Asaf Ali, and the persons who visited from 21st to 29th July included Shri Jagat Narain, Shri Yashpal, Shri N.C. Chatterjee and a few M.Ps. He said that he could not recollect any more. He asserted that Smt. Tarkeshwari Sinha never came during his duty hours. 165. The learned Counsel has not been able to give any convincing reason why we should disbelieve this officer. 166. Shri P. Krishna Rao, R.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 Gir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri has been established. If it was Shri Giri's election technique we would have expected evidence to be produced that he telephoned a number of electors from Delhi. The learned Counsel for the petitioners said that the witness was an important person and Shri Giri might have been told at Chandigarh that he should contact the witness. But we cannot rely on conjectures. 171. In order to prove connivance on the part of Shri Giri, the learned Counsel also relied on a copy of a letter which Shri Abdul Ghani Dar is supposed to have sent to the respondent. Shri Dar deposed that he wrote a 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 cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no reason to disbelieve Shri Giri that he did not come across this news item. We must, therefore, hold that it has not been proved that there was any connivance on the part of Shri Giri to the printing, publishing or distribution of the pamphlet. 174. We have already said, and we may repeat, that there is no evidence whatsoever that there was any intimate connection between Shri V.V. Giri and the alleged distributOrs. What they were doing in this connection they were doing on their own and Shri Giri cannot be held responsible for their deeds unless, of course, it is established 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 Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate harshly, where a tribunal may feel that the result of an election may well have been affected by a serious irregularity, but it may be impossible for the petitioner to establish this positively; but we have to interpret and follow the rule as it stands." 177. Parliament, knowing of the views held by various Commissioners and Judges, have failed to intervene, and it is not for us to legislate. 178. Let us then see if the petitioners have been able to affirmatively prove that the result of the election was materially affected by the distribution of the pamphlet. They 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly to the directives of his party. Shri S. Nijalingappa said that the pamphlet would adversely affect Shri Reddy's chances of success. Shri M.S. Gurupadaswamy, M.P., did not say that the pamphlet affected him although "the motivation was to defame the candidate Shri Sanjiva Reddy and jeopardise his chances of being elected as President." Shri D.S. Raju, M.P., said that he was shocked by the pamphlet but he had always been a loyal Congressman and scrupulously abided by the directives of the party. Shri Patil Putappa, M.P., felt whether he would be doing the right thing by voting for Shri Sanjiva 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pamphlet and ascertain the truth. Shri Sanjiva Reddy had been the Speaker of the Lok Sabha and was a well-known and leading political personality. 182. There were various other issues exercising the minds of electors, particularly belonging to the Congress party. If in spite of all these factors some were unduly influenced in their thinking, it was for them to come and say so. There was no landslide against Shri Sanjiva Reddy. Two hundred and sixty eight members of Parliament gave him the first preference. Ninety two members of Parliament, who had given first preference to Shri C.D. Deshmukh, gave second preference 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o gave evidence to the effect. Shri Basant Lall Sharma, M.L.A., P.W. 22, also said that Shri Dinesh Singh visited' eight or nine days before the polling date. 188. Shri Rajendra Prapat Singh, M.L.A., P.W. 21, deposed that Shri Dinesh Singh came to Lucknow seven or eight Mays before the polling and he met him and others in a block of the Councillors' Residence. According to him Shri Dinesh Singh told him that "it is the desire of the Prime Minister that don't vote for the other candidate." The witness further deposed that Shri Dinesh Singh told him that he had come to know from Shri Giri that "I was not prepared to vote for Shri 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Lucknow after he had filed the petition and stayed in 24B Block in Darulshafa, very near 23 B Block in Darulshafa where the witnesses was staying. When pressed to remember the names of persons who were present when Shri Dinesh Singh addressed the meeting, he ventured the names of Shri Kamlapati Tripathi and Shri Jagdish Gandhi, and added that perhaps Shri Abdul Salim Shah was also there. 193. As we said before, Shri Dinesh Singh, R.W. 6, said that between the beginning of August or rather after his return from abroad on 18th July, and the 22nd of August, 1969, he never went to Lucknow and he was in Delhi right upto the 2nd August. He said that his Secretary keeps the diary of his engagements and consults him before making any appointment 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 usua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;If I say that Mr. Dinesh Singh did visit Lucknow between the 1st of August and the 14th of August, will it be correct ?", he answered : "Totally incorrect" 197. Shri Abid Ali, M.L.A., R.W. 33, deposed that he had not met Shri Dinesh Singh personally. He was asked : "Mr. Abdul Salim Shah has deposed before this Court as a witness and stated that Mr. Dinesh Singh came to Lucknow in August '69 and you were present alongwith him and others when Mr. Dinesh Singh and he had a conversation. Is it correct ?" He answered : "No it is quite wrong." He stuck to this position in cross-examination. 198. Shri Rao Rafay Khan, M.L.A., R.W. 37, said in cross-examination that he could not say whether Shri Dinesh Singh went to Lucknow or not and he said that he had not yet met Shri Dinesh 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; He was asked : "If he (the Minister) decides to go on tour, let us say, suddenly in the evening, will a tour programme be issued ?" He replied : "If it is possible. We will contact the District Magistrate of the place he is visiting to inform him that the Minister is arriving at that place, by telephone. If the Minister is likely to stay there for a day, we issue a programme, although it is afterwards." He was asked : "If he is coming back immediately, no programme will be issued ?" He replied : "No. But it is my responsibility to inform the District Magistrate that he is coming." 202. The witness produced a file containing the tour programmes between the 22nd of February, 1969, and the 22nd December, 1969. He said that if the Minister changes his route while he is on the way, then if he gets information he would issue a revised programme. He pointed 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited in the security line. When the Minister is away the gunman still attend the house. He produced the Roznamcha which was maintained in the year 1969 and he said that he would make an entry in the Roznamcha as to whether Shri Dinesh Singh was in Delhi or not. He showed the entries from the first of August to the 16th. He pointed out various entries. The first entry was dated 11th August. This entry would show that the Minister spent the night of the 10th in Delhi. Various such entries were pointed out. He was asked to see if there was anything to show that the Minister was not in Delhi during this time, and he answered : "There is no entry showing that he was away from Delhi." The counsel brought out the entries on the 22nd of August to show that an entry was made when Shri Dinesh Singh went to Lucknow. In the entry it is recorded inter alia that "at 7 a.m. the Minister is in the house". The entry 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and Shri Abdul Salim Shah, P.W. 38. These witnesses also deposed to Shri Dinesh Singh's visit to Lucknow and we have disbelieved their version. In these circumstances we must view their evidence with extreme care and caution. 209. It will be noticed that the witnesses have given different versions as to what Shri V.V. Giri said. 210. Shri Bansidhar Pandey, P.W. 18, Shri Jagdish Pershad, P.W. 20, and Shri Basant Lal Sharma, P.W. 22, said that Shri Giri told them that they should vote for him in the Presidential election. P.W. 19, Shri Ram Singh's version was : "At that time he asked us that I am the candidate of the Prime Minister and I must be voted for the Presidential Election and she has supported him and therefore I must get the votes." Shri Ram Pyare Panike, P.W. 37, struck a different note. According to him Shri V.V. Giri said : "He told us that we should vote for him because he told us that he was also the Governor 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 separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was about his own qualifications. He denied having referred to Shri Sanjiva Reddy and also denied having ever said that Shri Sanjiva Reddy was not a suitable candidate, and further, according to Shri Giri it was absolutely false that he said that "there are so many spots on his character and the Congress High Command has done a great blunder in nominating him as its candidate." He admitted that he said about himself, his qualifications, but there also he was very guarded. 215. On the respondent's side Shri Shivanand Nautiyal, M.L.A., R.W. 26, supported Shri Giri's version of the meeting. Shri Nautiyal admitted that he was an active supporter of Shri Giri. According to him, Shri Giri said that he was an independent candidate and told everything about his work and nothing more : in particular he did not, in the course of what he said, refer to Shri Sanjiva Reddy, nor did Shri Giri say that he was Shrimati Indira Gandhi's candidate. According to the witness, after the meeting Shri 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n July 20, 1969. Shri Giri said that he had not spoken either to the Prime Minister or to any Minister before he announced his candidature. He further stated that he saw the Prime Minister on July 20, 1969, when she came to see him at a ceremonial function when he was leaving the Rashtrapati Bhavan and she had come to say "good-bye" and he said "good-bye" to her. He categorically stated that they did not meet each other any time between the 20th July and the 16th August, 1969. 219. We are of the view that Shri Giri's version is preferable to the version given by the petitioners in so far as there is any conflict, and therefore we hold that the allegations made in the petition in this respect have not been substantiated. 220. We may next deal with the allegations in paragraph 13(c)(iii) of the petition to the effect that Shri Fakhruddin Ali Ahmed and Shri Yunus Saleem threatened Muslim voters that Shri Sanjiva Reddy was in fact a candidate of the Jan Sangh Party and that 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 of the conversation which took place between Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted almost the same thing and further Shri Yunus Saleem met him in the Central Hall and said : "If I am differing from him, I might vote for Mr. Reddy. In that case that will not be good for me in future." In cross-examination he said that before he gave his evidence in Court he did not have any conversation with Shri Abdul Ghani Dar or anyone on his behalf about what the witness was going to depose to in this Court. He, however, said later that he had informed Shri Abdul Ghani Dar about the conversation which the witness had with Shri Fakhruddin Ali Ahmed on the telephone, and similarly he informed Shri Abdul Ghani Dar about the entire conversation which he had with Shri Yunus Saleem. He denied the suggestion that Shri Fakhruddin Ali Ahmed had no conversation with him in the Central Hall and he also denied the suggestion that Shri Yunus Saleem had no conversation with him on the telephone or in the Central Hall. He further said that he had told Shri Mishra, who is the leader of the Congress Party in the Rajya Sabha, about what Shri Fakhruddin Ali Ahmed had told him. 224. It will be noticed that in the particulars Shri Sher Khan is not stated to have met Shri Fakhruddin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g." 228. The last witness on this point is Shri Abdul Ghani Dar, M.P. He deposed that Shri Fakhruddin Ali Ahmed approached him on the telephone on the 11th August in the evening and he told him that "he was told by Mr. Yunus Saleem that in spite of having been told by him (Shri Yunus Saleem) I had decided not to side with Mr. Giri and Shrimati Indira Gandhi." The witness further deposed that Shri Fakhruddin Ali Ahmed said that "it meant that in spite of my being a Muslim I was an enemy of the Muslims." He further said that, he told Shri Fakhruddin Ali Ahmed that this was wrong. According to the witness, he addressed a letter to Shri Fakhruddin Ali Ahmed and also to all the Muslim Members of Parliament on this. The letter is Ext. P 68. He further deposed that Shri Yunus Saleem gave the pamphlets to him, took him aside and told him four things; the two relevant to this point being (1) that Shri Sanjiva Reddy was in collusion with the Jan Sangh, and (2) that if Sanjiva Reddy wins it will be a victory for Jan Sangh and the Muslims will stand eliminated. According to the witness he replied that "this is also wrong that by the return of Mr. Sanjiva Reddy th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arain tried to contact Shri Abdul Ghani Dar in order to dissuade him from filing the election petition. Shri Jagat Narain had first spoken to Shri Abdul Ghani Dar's wife and, according to Shri Abdul Ghani Dar, Shri Jagat Narain had created an impression on his wife that there would be peril to Shri Abdul Ghani Dar in case he insisted on filing the petition. Shri Dar's wife did not give evidence. The tape record of the conversation between Shri Abdul Ghani Dar and Shri Jagat Narain clearly indicates that whereas Shri Jagat Narain was trying his best to make out that in his conversion with Shri Abdul Ghani's wife he had not held out any threat to the life of Shri Abdul Ghani Dar, the latter was trying his best to get an admission to that effect from Shri Jagat Narain on to the tape. 232. Shri Fakhruddin Ali Ahmed denied that he telephoned Shri Sher Khan, M.P., as alleged by Shri Sher Khan in his evidence. He further denied that he had any conversation with him in the Central Hall on the 11th of August, as alleged by him. He further denied that he telephoned Chaudhary A. Mohammad regarding the election or any other matter. He maintained that he had no talk with him in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swered : "Except this that I had a talk with Mr. Abdul Ghani Dar about the Presidential election in the Central Hall every part of it is incorrect." Shri Yunus Saleem described the talk thus : I wanted to know his views about the Presidential election because he claimed to be an independent member of the Parliament who did not belong to any political party. We discussed several points and he said that he had decided to support Mr. S. Reddy and he also mentioned that the late Prof. Humayun Kabir was also of the same view that Mr. S. Reddy should be supported. Therefore I said that he may consider that whether it would be advisable in the interest of democracy and socialism to support Mr. S. Reddy or Mr. Giri. He said that he would think over it and also discuss with Prof. Humayun Kabir. Except this no talk between myself and Mr. Abdul Ghani Dar took place about the Presidential election. 236. In this connection reference may be made to the statement of some other Muslim Members of Parliament. Syed Ahmed Agha, M.P., R.W. 10, said that Shri Sher Khan was collecting signatures for Shri Sanjiva Reddy. He further stated that no meeting of the Muslim Members of Parliament was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... influence any particular electors who were found not amenable to his influence or persuasions. We must hold these allegations not proved. 241. Regarding the allegations in para 13(c)(v), para 13(c)(vi) and para 13(c)(vi), we did not allow any evidence to be taken on the points because we were of the view that even if they were accepted, the allegations did not amount to undue influence. It seems to us that the threats indicated in those paras were fanciful and remote and they could not constitute any attempt to interfere with the electoral rights of the electOrs. 242. It was stated in para 13(c)(xiii) that "on August 6, 1969 the U.P. Congress Committee President, Shri Kamlapati Tripathi and Shri C.B. Gupta, Chief Minister, jointly addressed a meeting of the Congress M.L.As. and appealed for solid backing for Shri Reddy. But when undue influence of the scare reached them they changed their stand. On August 13, 1969, Shri Kamlapati Tripathi also pleaded for freedom to vote. The same was the fate of the other State leaders." According to Shri Kamlapati Tripathi, R.W. 61, he had issued an appeal, Ex. P 74, on August 12, 1969, to all Congress legislators of the U.P. State Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed that the parties will bear their own costs. We passed this order regarding costs because we were satisfied that the pamphlet had been sent by post and distributed in the Central Hall and this justified the petitioners in bringing the two main petitioners. Most of the evidence which was led in Court dealt with the question of the distribution of the pamphlet. Further as pointed out in the judgment, a number of witnesses have not told the whole truth. As a matter of act we were distressed to see truth being sacrificed at the altar of political advantage by these witnesses. Authored By : Vashishtha Bhargava, G.K. Mitter Vashishtha Bhargava, J. 247. These four election petitions all challenge the election of the President of India for which polling was held on the 16th August, 1969, and the result of which was declared on the 20th August, 1969. The petitioners in Election Petitions Nos. 1 and 3 of 1969 were candidates at the election. The nomination papers of both these petitioners were rejected by the Returning Officer. The petitioners in the other two Election Petitions Nos. 4 and 5 of 1969 were electors for the election of the President. The successful candidate, Shri V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due influence had been committed at the election by the respondent and his supporters with the connivance of the respondent; (5) That the result of the election had been materially affected by the commission of offence of undue influence by persons other than the respondent without his connivance; (6) That the offence of bribery at the election had been committed by the respondent and his supporters with his connivance; (7) That the result of the election had been materially affected by the commission of the offence of bribery by persons Other than the respondent; (8) That Part III and Section 21 of the Act are ultra-vires the Constitution as well as Rules 4 and 6(3)(e) of the Presidential and Vice-Presidential Elections Rules, 1952 (hereinafter referred to as "the Rules") promulgated under Section 21 of the Act are ultra vires the Constitution and the Act; (9) That 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 and their wrongful non-inclusion had materially affected the result of the election, as well as it had violated Article 14 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were wrongly rejected, as alleged in paragraphs 8(a) and 9(a), (b) and (c) of the petition? 2. Whether the nomination papers of Shri Rajbhoj Pandurang Nathuji, Pandit Babu Lal Mag and Dr. Ram Dulare Tripathi were wrongly accepted as alleged in paragraphs 8(b) and 10(a), (b) and (c) of the petition? 3. Whether the nomination papers of the respondent were wrongly accepted as alleged in paragraphs 8(c) and 11 of the petition? 4. (a) Whether all or any of the allegations made in paragraphs 8(e) and 13 (a) to (m) of the petition constitute in law an offence of undue influence under Section 18(1)(a) of the Act? (b) Whether the said allegations made in paragraph 8(e) and 13 (a) to (m) are true and proved? (c) In the event of these allegations being proved and constituting undue influence- (i) whether the returned candidate has committed the offence of undue influence? (ii) whether the offence of undue influence was committed by his workers, and if so, with his connivance? (iii) whether the offence of undue influence was committed by others without his connivance, and if so, whether that has materially affected the result of the election? 5. Whether Part III and Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paragraphs 8(c) and 11 of the petition? 4. (a) Whether all or any of the allegations made in paragraphs 8 (e) and 13 of the petition constitute in law an offence of undue influence under Section 18(1)(a) of the Act? (b) Whether the said allegations in paragraphs 8(e) and 13 are true and proved? (c) In the event of these allegations being proved and constituting undue influence- (i) whether the returned candidate has committed the offence of undue influence? (ii) whether the offence of undue influence was committed by his workers, and if so, with his connivance? (iii) whether the offence of undue influence was committed by others without his connivance, and if so, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to curtail the jurisdiction conferred on the Supreme Court to enquire into and decide all doubts and disputes arising out of or in connection with the election of a President or Vice-President by laying down certain limitations, such as the grounds on which only the election of a President or Vice-President can be challenged in an election petition. The question of validity of the Act was considered by this Court in Dr. N.B. Khare v. Election Commission of India [1958] S.C.R. 648., where the Court dealt with the contention that the Act and the Rules framed thereunder are void on the ground that they derogate from the jurisdiction of the Supreme Court to enquire into and decide all disputes and doubts arising out of or in connection with the election of the President or the Vice-President. This proposition was supported by the argument, that under Section 18 of the Act, the election could be set aside only on certain grounds and that, further, under Clause (b), it could be done only if the result of the election is shown to have been materially affected and that these are restrictions on the jurisdiction conferred by Article 71(1) and are ultra vires. The Court held :- Article 71 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution which lays down that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The argument was that, in this Article, there was specific mention of a law made for calling in question an election by an election petition, whereas there is no such corresponding provision in Article 71 of the Constitution. The argument advanced is clearly misconceived. In the case of elections to either House of Parliament or to the House or either House of the Legislature of a State, Parliament exercises powers to make law with respect to all matters relating to or in connection with the election under Article 327 and not under Article 329(b). Article 329(b) is a provision which lays down a limitation on the manner in which an election 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he essential regulations for holding the elections, and in Part III, similarly, the essential matters relating to filing of election petitions and their decision, including the grounds on which the elections can be challenged, have been prescribed by Parliament itself. It is in order to give effect to these principles laid down by Parliament itself in the Act that the Government is to exercise Its power of making rules. Such power being already limited by the purposes of the Act cannot be held to be unguided or even arbitrary, even though Parliament did not choose to lay down the requirement that the Rules framed must be laid on the table of the two Houses of Parliament and should be subject to modification or annulment within a specified period. In fact. Parliament all the time has the power of altering the Rules by amending the Act itself in case it disapproves of any of the Rules made by the Government, while any Rule, which is shown to have been made in contravention of the provisions of the Act, or for any reason other than to give effect to the purposes of the Act, would be declared void by the Court not on the ground that there was excessive delegation of legislative power, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose nominations are accepted by him, are eligible for election. In this connection, reference was made to the decision of this Court in Ranjit Singh v. Pritam Singh and Ors. [1966]3SCR543 ., where the Court had to deal with Section 33(5) of the Representation of the People Act, 1951, and the Court held :- The object of this provision obviously is to enable the returning officer to check whether the person standing for election is qualified for the purpose. The electoral roll of the constituency for which the returning officer is making scrutiny would be with him, and it is not necessary for a candidate to produce the copy of the roll of that constituency. But where the candidate belongs to another constituency, the returning officer would not have the roll of that other constituency with him and therefore the provision contained in Section 33(5) has been made by the legislature to enable the returning officer to check that the candidate is qualified 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urning Officer so as to enable him to ensure that the candidate is eligible for election. In order to make certain that the election proceeds smoothly and to minimize the chances of disputes or doubts arising, the requirement laid down in Rule 4(1) is that a certified copy of the entry alone should be accepted as the proper proof for showing eligibility of the candidate. Electoral rolls are subject to revision from time to time. At the general elections, they are fully revised and, then, subsequent alterations are made in them as occasions arise. The election to the office of a President or Vice-President may not coincide with or be very close to the time when there is general revision of the electoral rolls, so that the electoral rolls printed, and published near about the time of general elections may be out of date by the time the election for the office of a President or Vice-President is held. The published electoral roll may, therefore, be misleading if it is allowed to be filed before the Returning Officer to show eligibility in the case of a Presidential or Vice-Presidential election. That seems to be the reason why Rule 4(1) lays down that a certified copy of the entry alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed by the candidate himself as assenting to the nomination and by two electors as proposer and seconder. The argument is that every candidate, under Section 5(2), has a right to be nominated by any two electors as proposer and seconder without any limitation as to who those two electors are and irrespective of those electors having done any act, such as having proposed or seconded another candidate. It is also urged that this provision confers a right on every elector to subscribe a nomination paper as proposer or seconder without any limitation as to the number of nomination papers which can be so subscribed by him. 257. The submission that Section 5(2) should be read as conferring any right either on the candidate or on the electors in respect of signing of nomination papers cannot be-accepted. On the face of it, the provision made in Section 5 relates to procedural matters leading up to the exercise of electoral rights of a candidate or an elector. The filing of nomination paper only regulates the 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of vacancies to be filled, shall be deemed to be valid. These provisions were omitted by the Amending Act 27 of 1956, and thereafter, the language of Section 33 became similar to that of Section 5(2) of the Act inasmuch as it required the candidate to deliver to the Returning Officer a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. The question arose whether, if a single elector signed more than one nomination paper as a proposer, any of the nomination papers could be held to be invalid. The Court held that, after the enactment of the Amending Act 27 of 1956, there was no ban in Section 33 of an elector signing more than one nomination paper and, consequently, if an elector signed more than one nomination paper, all the nomination papers would be valid. That case is, thus, limited to the question whether there is or is no ban on an elector signing more than one nomination paper as a proposer. It did not lay down that every elector had been conferred a right to sign the nomination paper of more than one candidate as a proposer. While no right can be read as having been conferred by such a provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure was governed by the Regulations made for each Province for conducting the elections in that Province even in respect of the Central Legislative Assembly. In the Presidency of Madras, Regulation 7(1)(iii) empowered the Returning Officer to refuse any nomination on the ground that there has been a failure on the part of the candidate or his proposer or seconder to comply with any of the provisions of Rule 11; and it was in exercise of this power that the Returning Officer could reject the nomination paper signed by an elector or proposer in excess of the number of vacancies. For the Presidency of Bombay, a similar provision was made in Regulation 3 of the Legislative Assembly (Bombay) Electoral Regulations dated 13th September, 1923, for rejection of the nomination paper by the Returning Officer. The corresponding provision for the Province of Bengal was contained in Regulation 20; for United Provinces in Regulation 9; 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such qualifying words, because Rule 8(1) could not be interpreted as conferring a right on an elector to subscribe more than one nomination paper as proposer or seconder, so that Rule 8(5) was not a limitation on any right conferred by the earlier sub-rule. In these circumstances, it must be held 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 also be held to be valid. Issue No. 1 in Election Petitions Nos. 1, 4 and 5 of 1969. 261. These issues between them raise the question of the validity of the rejection of the nomination papers of three persons, Shri Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri Yogi Raj. The nomination paper of Shri Shiv Kirpal Singh was rejected on the ground that it was not accompanied by a certified copy of the entry relating to him 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturning Officer, The Returning Officer rejected the nomination paper by an order made in accordance with Rule 6(3)(e) read with Rule 4(3) of the Rules. The correctness of this order was challenged on the ground that these Rules are ultra vires the Act. In dealing with issue No. 6, it has already been held that these Rules are valid and are not in contravention of Section 5(2) of the Act. The rejection of his nomination paper, based on these valid Rules, was justified and, consequently, it cannot be held that his nomination paper was wrongly rejected. Issue No. 2 in Election Petitions Nos. 1 & 5 and Issue No. 3 in Election Petition No. 4 of 1969. 264. The acceptance of the nomination paper of the respondent has been challenged on the ground that his nomination paper was not accompanied by a certified copy of the entry relating to him in the Parliamentary constituency in which he was registered. After examining the certified copy 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 Electi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground pressed was that his nomination paper was signed by the proposer and the candidate on 16th July, 1969, while the seconder signed it on 21st July, 1969. Thereafter, the candidate himself presented this nomination paper to the Returning Officer on 23rd July, 1969. His case may be considered with that of Pandit Babu Lal Mag in which also the ground for challenging the validity of the nomination paper is similar. His nomination paper was signed by him on 18th July, 1969, while both the proposer and the seconder signed it on 21st July, 1969. Thereafter, Pandit Babu Lal Mag himself presented the nomination paper to the Returning Officer. The point raised was that, in one case, the seconder signed the nomination paper after the candidate, while, in the other case, both the proposer and the seconder signed after the candidate had done so. The nomination paper shows that the candidate, when signing, purports to "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt must not precede the nomination. Thus, in that case the nomination paper was held to be invalid, because the signature of John Green, who was ultimately the proposer, was put on the nomination paper after the seconder, the candidate and the eight assenting burgesses had all signed it. However, the point to be noticed is that, in that case, the invalidity was found because the circumstances in which John Green substituted his name as the proposer showed that the assenting eight burgesses had no knowledge at all that he had become the proposer, as they had only assented to the nomination signed by William Ball. John Green substituted his name for that of William Ball in the absence of the burgesses. On this ground, it was held that the nomination paper could not be held to contain in it the assent of the eight burgesses. That case is distinguishable from the present case. In the present case, when the candidates concerned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a situation very similar to the one in the present case. He held :- The language of the present rule is not the same as that of the section upon which those cases were decided. It would require a good deal to convince me that there is anything wrong in a candidate filling his own name in after those of his proposer and seconder. In my own practical experience of elections it is a thing which is constantly done. If the signatures of the proposer and seconder were used for the purpose of filling in the name of a candidate that they did not intend, that would be another matter. Harmon v. Park was a very different case from this. In this case the validity of the nomination paper was being challenged on the ground that the candidate had filled in his own name after the proposer and seconder had already signed it and, yet, it was held that the nomination paper was valid on the ground that there was nothing to show that the proposer and seconder did not intend to nominate that particular candidate. In 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the proposer and the seconder. Even subsequently, a similar provision in the Representation of the People Act, 1951, and the Rules frame thereunder for conduct of elections and election petitions, was interpreted in the same manner by the Election Tribunal in the case of Yamuna Prasad v. Jagdish Prasad Khare and Ors. (1957 13 E.L.R. 1. Consequently, it cannot be held that, in the present case, the nomination paper of Shri Babu Lal Mag was invalid because he signed his nomination paper before it was signed by the proposer and seconder, or that the nomination paper of Shri Santosh Singh Kachhwaha was invalid because he signed his nomination paper before his seconder had signed it. The nomination papers of both these candidates were, therefore, rightly accepted. 270. So far as the nomination paper of Dr. Ram Dulare Tripathi is concerned, the allegation was that it did not appear to bear the signatures 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 Ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was amended by the Constitution (Seventh Amendment) Act, 1956, which introduced Article 372A in the Constitution permitting adaptations and modifications of all laws which may be necessary or expedient for the purpose of bringing the provisions of the law into accord with the Constitution as amended by the Seventh Amendment Act, 1956. It was in exercise of this power under Article 372A that Section 3(58) of the General Clauses" Act was amended, so that, thereafter, "State" as defined included Union Territories also. The new definition of "State" in Section 3(58) of the General Clauses Act as a result of modifications and adaptations under Article 372A would, no doubt, apply to the interpretation of all laws of Parliament, but it cannot apply to the interpretation of the Constitution, because Article 367 was not amended and it was not laid down that the General Clauses Act, as adapted or modified under any Article other than Article 372, 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 inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion signed by two electors as proposer and seconder, is ultra vires the Constitution. According to him, he possessed all the qualifications for being a candidate laid down in Article 58. He had proved that he was an elector registered in a Parliamentary constituency by producing a certified copy of the entry relating to him in the electoral roll. He had also produced a certificate that he had resigned from government service and was not holding an office of profit under the Government. He relied on the electoral roll to show that he was a citizen of India. He also produced a copy of his High School certificate showing that he was not less than 35 years of age. In these circumstances, according to him, his nomination paper could not be rejected on the ground that he had not been nominated by two electors as proposer and seconder. On the face of it his argument that Section 5(2) of the Act contravenes Article 58 or any other Article of the Constitution has no force at all. Section 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, Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be granted by the Government of India. The Punjab State Government also applied for the licence. The licence, was, however, refused to the public sector and was, instead, granted to a private limited company in which Shri Sita Ram Jaipuria, a Member of the Rajya Sabha who was also an influential elector, had financial interest. It was alleged that this licence was granted to the Company as a gratification with the object of inducing Shri Sita Ram Jaipuria and the electors under his influence to exercise their vote in favour of the respondent and against Shri Sanjiva Reddy, in whose favour they were intending to vote earlier. According to the petitioners, this licence was granted during the election period. A further allegation was made that one Shri Kanwar Lal Gupta, a Member of Parliament, wrote a letter to the Election Commission stating that money was being offered to some members to vote for the respondent; and, from this, it was also clear that the offence of 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Swadeshi Cotton Mills in preference to the public sector company, the Industrial Development Corporation owned by the Punjab Government. The evidence of the latter two witnesses also, however, proved the circumstances in which the licence was granted to the Swadeshi Cotton Mills, Kanpur, disregarding the claim of the Industrial Development Corporation of Punjab. According to the evidence of these two witnesses, the procedure obtaining is that all applications for such licences are first processed in the relevant Ministries and are examined and completed if any further material is to be obtained. The Administrative Ministry, which in this case was the Ministry of Petroleum and Chemicals, prepares a note showing the various factors relating to each application which require to be taken into consideration. Thereafter, these applications come up for consideration before a sub-committee of the Licensing Committee of the Government of India. The Licensing Committee is a large body which includes amongst its members Secretaries of various Ministries as well as representatives of State Governments. This Committee appoints sub-committees for licences concerned with specific Ministries o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in favour of the respondent. The grant of the licence was in due course in accordance with the procedure prevailing in the Ministry of the Government of India and had no relation at all with the candidature of the respondent for the office of the President which, in fact, was announced after that decision had already been arrived at. Consequently, the conclusion follows that no offence of bribery was committed in the matter of grant of licence for the Polyester Fibre Factory to Swadeshi Cotton Mills; and this ground for setting aside the election of the respondent, therefore, fails and is rejected. Issue No. 4(a), (b) & (c) in Election Petitions Nos. 4 and 5 of 1969. 279. This issue relates to the challenge to the validity of the election of the respondent on the ground of commission of a number of offences of undue influence under Section 18(1)(a) and (b)(i) of the Act which lays down that, if the Supreme Court is of opinion- (a) that the offence of bribery 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is necessary to understand properly what acts constitute undue influence as defined in Section 171C of the Indian Penal Code. Sub-section (1) of Section 171C, in general terms, makes any act an undue influence it it interferes on attempts to interfere with the free exercise of any electoral right, and if it is committed voluntarily. The question has arisen what acts can be held to interfere with the free exercise of an electoral right. We are here concerned with the electoral right of a voter which, according to the definition in Section 171A(b), is the right to vote or refrain from voting. Undue influence can be held to be committed if the person charged with the offence interferes or attempts to interfere with the free exercise of this right of voting or refraining from voting. When an elector exercises the right of vote, it can be envisaged that he goes through the mental process of first taking a decision that he will vote in favour of a particular candidate and, thereafter, having 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the harm caused must be illegal. Cases can arise where there may be no illegality in the threatened consequence to the voter and, yet, it may interfere with the free exercise of his right to vote. An instance that can be cited is where a father may threaten to disinherit his son in respect of property solely owned by the father unless his son voted for a particular candidate or refrained from voting for some other candidate. The consequence of non-compliance with the wishes of the father would be the loss of inheritance to the son which is not an injury as defined in Section 44, I.P.C. Such an attempt by the father would clearly amount to exercise of undue influence by him on his son. But, in cases where the only act done is for the purpose of convincing the voter that a particular candidate is not the proper candidate to whom the vote should be given, that act cannot be held to be one which interferes with the free exercise of the electoral right. 281. It has, however, been argued that there may be a case where such virulent propaganda may be carried on against a candidate as may cloud the mind and judgment of the voters and almost compel them to come to a decision that they s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly indicates that the question of freedom actually arises at the stage when a voter has already exercised his judgment and conscience, has decided which candidate he will vote for, and is then allowed to cast his vote freely without any interference in the form of intimidation or improper influence. 282. A very important aspect in considering this argument is that whatever meaning is given to the expression "undue influence" in the Act will also apply when interpreting the provisions of the Indian Penal Code, because the Act imports the definition of "undue influence" from Section 171C of the Code. In the Indian Penal Code, a new Chapter IXA was introduced by the Indian Elections Offences and Inquiries Act 39 of 1920. the statement of objects and reasons attached to the Bill which culminated in that Act explained this provision by stating that : undue influence at an election is defined as the voluntary interference or attempted interference with the right of any person to stand, or not to stand, or withdraw from being, a candidate, or to vote or refrain from voting. This covers all threats of injury to person or property and all illegal methods of persuasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or conduct of a candidate can amount to undue influence, the person indulging in that propaganda would become liable to punishment under Section 171F, I.P.C., which has been considered a more serious offence by being made punishable with imprisonment in addition to, or, in the alternative, with fine. This interpretation would thus make Section 171G, I.P.C., totally ineffective and otiose. If the false statements as to personal character or conduct are held to be punishable under Section 171F as constituting offence of undue influence, there would be no point in prosecuting the same person for the less serious offence under Section 171G. In fact, Section 171G would be fully covered by Section 171F and, consequently, the interpretation sought to be urged in these petitions has to be rejected. 284. It is true that, in the Act, there is no provision indicating that publication by a candidate, or by any other person with his connivance, of a statement of fact which is false in relation to the personal character or conduct of another candidate will be deemed to be a corrupt practice on the commission of which an election can be declared void. Such omission in the Act cannot, however be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court dealing with the question of undue influence under the Act is reported in Shri Baburao Patel and Ors. v. Dr. Zakir Husain and Ors. [1968]2SCR133 ., where the Court had to consider the distinction between canvassing and exercise of undue influence and held- It is difficult to lay down in general terms where mere canvassing ends and interference or attempt at interference with the free exercise of any electoral right begins. That is a matter to be determined in each case; but there can be no doubt that, if what is done is merely canvassing, it would not be undue influence. As Sub-section (3) of Section 171C shows, the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence. The Court, after reviewing the relevant case law under the Representation of the People Act, then proceeded to hold :- It will be seen from the above review of the cases relating to undue influence that it has been consistently held in this country that it is open to Ministers to canvass for candidates of their party standing for election. Such canvassing does not amount to undue influence but is proper use of the Minister's right to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to the provisions contained in Section 123, Sub-section (2) and (4) of the Representation of the People Act, 1951. Dealing with this aspect in the case of Ram Dial v. Sam Lal and Ors. [1959] Suppl. 2 S.C.R. 748., this Court first pointed out that the law in England relating to undue influence at elections is not the same as the law in India and, consequently, proceeded to interpret the law here without taking into account the principles laid down in England. In that case, the question arose whether, what a religious leader had done by issuing a Hukam or Farman amounted to undue influence or not. The Court held :- There cannot be the least doubt that a religious leader has the right freely to express his opinion on the comparative merits of the contesting candidates and to canvass for such of them as he considers worthy of the confidence of the electors. In other words, the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a course of conduct on his part will only be a use of his great ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided on 9.1.69, this Court dealt with a case where there had been an assault close to the polling station after certain pamphlets had been issued, wherein threats were freely canvassed and exhortations made that those, who opposed the candidates supported by the two organisations (which issued the pamphlets), would not be forgotten nor spared. The Court then proceeded to hold :- In the light of propaganda of this nature carried on before the polling days, it is impossible to view the assault as an isolated incident nor can it be legitimately argued that the conclusion of the Judicial Commissioner that it was a culmination of those threats was either an unreasonable or an unwarranted conclusion. There can be no doubt that such rowdyism at a polling station was bound to deter voters from coming to the polling station to exercise freely their franchise. We have no doubt that the assault by the appellant's polling agent attracted Section 123(2), proviso (a), and that also rendered the election void. This was again a case where the exercise of their electoral right by the voters was interfered by physical act of assault and threat on voters who intended to vote for the rival ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left no free will to exercise his choice. In this decision, thus, the distinction, as indicated above, is clearly brought out. In that case, however, a picture with a caption had been published as a part of a cover of booklet and it was held that its publication amounted to exercise of undue influence. The reason is indicated when the learned Judge, dealing with this poster held :- The picture with the caption, as it stood, was intended to be made catchy with an ulterior motive and was deliberately published in that asked form in order to create a feeling of terror, fear and hatred and was such a compelling appeal to the mind of the voters as to amount to interference with the free exercise of voters' electoral right. 293. The picture in question showed a dead boy with a caption in Oriya which, translated in English, was to the effect : "Do not vote for the Congress who killed Sahid Sunil". That picture thus, did not contain any false statement or representation as to the personal character of a candidate; but Barman, J., 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 misr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f consequences which might be visited on themselves or their children in case they voted for the Congress. Barman, J., in this connection, also referred to the decisions of Election Tribunals in Sardul Singh v. Hukam Singh 6 E.L.R. 316., and Jujhar Singh v. Bhairon Lall 7 E.L.R. 457. and agreed with the principles laid down in those cases. I shall indicate later the ratio of those two decisions. The other two Judges, constituting the majority, differed from Barman, J., and held that the publication of the picture did not amount to undue influence, because, in their opinion, no inference could be drawn that the publication of this picture was intended to create a fear in the minds of the voters. Rao, J., dealt with the submission of Mr. Rath, the counsel, that a look at the photo will make the voter think that, if he votes for the Congress Party during whose office the killing took place, he would be similarly killed and therefore it created a fear in his mind and thus interferes with the free exercise of the electoral right. He rejected it by saying that, in his opinion, this was a farfetched argument. He further held :- The picture simply represents Sunil De after being shot at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In that case, the successful candidate had published a poem and the question arose whether the publication of that poem amounted to exercise of undue influence. The Court first, in general terms, dealt with the scope of undue influence by saying :- Section 123 of the Act is rather wide in its term and contemplates four distinct forms of interference with the free exercise of any electoral right, viz., direct interference indirect interference, direct attempt at interference and indirect attempt at interference. There is nothing in the definition that such interference or attempt at interference should be by any method of compulsion. Evidently the offence includes such interference or attempt to interfere by any method, and it definitely includes the method of inducement wherein there may not be any compulsion at all. The inducement again must be of such powerful type as would leave no free will to the voter in the exercise of his electoral right 297. This general explanation does not appear to be inconsistent with the view taken above, because it was held that, even if there be no compulsion at all, the inducement must be of such powerful type as would leave no free will to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of controlling a person's free exercise of his will. A persuasion, which leaves a person free to adopt his own course, is not undue influence. Otherwise a suggestion or an entreaty from somebody, held in esteem, could be treated as undue influence. In the absence of proof that a person has been in consequence of the alleged influence, deprived of free agency no question of there being an undue influence arises. It is not objectionable to exercise an influence by acts of kindness or appeals to the free reason and understanding. So long as the free agency of the other person is not prevented or impaired by obtaining a domination over the mind of another, it cannot be deemed as an exercise of an undue influence. The essence of 'undue influence' 'is that a person is constrained to do Against his will, but for the influence he would have refused to do if left to exercise his own judgment. It has to be shown that a person's volition had thus been controlled by another whereby he could not pursue his own inclination, being 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 becom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the majority of whom were men of no better intelligence than ordinary illiterate villagers and to create a feeling of positive prejudice, if not of terror as well, in their minds against the petitioner. Reliance was placed primarily on the last part of this quotation where the Tribunal held that the creation of a feeling of positive prejudice in the minds of the voters can amount to undue influence. But this part of the sentence has to be read in conjunction with the earlier part where a clear inference was drawn that the poster was clearly designed to overawe the voters. This was the reason why the Tribunal held that the publication of the poster amounted to undue influence, though, when defining undue influence in general, the Tribunal had clearly stated that the inducement must be of such a powerful type as would leave no free will to the voters in the exercise of his choice. In stating this principle, the Tribunal was clearly referring to the stage when, having made his choice, the voter wants to exercise it in accordance 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions rendered so far by the Courts or Tribunals in India, thus, go contrary to the view expressed above and, if at all a majority of them are in line with it. It is in the light of this interpretation of what undue influence means that this Court has to proceed further to see which of the allegations made in the present petitions can amount to charges of undue influence and whether they have been established so as to vitiate the election. 305. The principal charge of undue influence, on which a mass of evidence has been led by the petitioners, relates to the publication of a pamphlet which contained scurrilous and vulgar allegations as to the personal character of Shri Sanjiva Reddy. It is not necessary for me to set out the details of the contents of that pamphlet. It is sufficient to mention that apart from allegations against Shri Sanjiva Reddy, there were no other allegations in it which could amount to a threat of any adverse consequence to any voter in case he cast his vote in favour of Shri Reddy. Even in the evidence, 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 intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of undue influence fails altogether. 307. I also agree with the order directing parties to bear their own costs and the reasons for that order given by my brother Sikri, J., in his judgment. Issue No. 7 in Election Petition No. 1 of 1969, Issue No. 9 in Election Petition No. 4 of 1969, and Issue No. 11 in Election Petition No. 5 of 1969. 308. As a result of the findings on other issues, the petitioners in none of these petitions are entitled to any relief, as no ground has been made out for declaring the election of the respondent as void. G.K. Mitter, J. 309. I have had the benefit of reading the judgments of my colleagues. The facts leading up to the filing of these petitions and the issues settled therein have been set out in the judgment of my learned colleague, Vashishtha Bhargava, J. I am in agreement with him in his conclusion on issues other than issue No. 4 in Election Petitions 4 and 5 of 1969. I regret to have to differ from my other colleagues on this issue. As Petition No. 5 is more comprehensive than Petition No. 4 I prefer to refer to the allegations made in Petition No. 5 alone. Leaving out of account the technical grounds on which the election has been challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the office of the President of India was made on 13th July 1969 and on the same day the respondent who was then acting as the President of India called a Press conference at Rashtrapati Bhavan whereat he announced his candidature for the office of the President. He issued a statement condemning the selection of Sri Sanjeeva Reddy as based on partisan considerations and emphasised that a candidate for the highest office in the land should possess character, integrity, patriotism, experience and a good record of service and sacrifice. According to the petitioner there was insinuation that the above requisite qualifications were lacking in Sri Sanjeeva Reddy. (5) Being upset by the decision of the Board, the Prime Minister without any consultation with her colleagues in the Cabinet advised the Acting President of India that she would withdraw the Finance portfolio from Sri Morarji Desai. Her advise being accepted Sri Morarji Desai was relieved of his portfolio. She followed it up 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the party and it became clear that the Prime Minister and her colleagues in the Cabinet and their supporters made the issue of the success at the election by defeating the group which opposed her at the meeting of the Board on July 12, as one of prestige and political survival of the Prime Minister. 312. Against the above background the offence of undue influence was said to have been committed by the returned candidate and some persons named and unnamed and described as the workers and supporters of the respondent with his connivance by voluntarily interfering and attempting to interfere with the free exercise of the electoral rights of the candidates and the electors in general and some of them named in particular. (a) According to paragraph 13(b)(ii) of the petition Sri S. Nijalingappa, Sri S.K. Patil, Sri K. Kamaraj, Sri Morarji Desai and Sri Y.B. Chavan, electors at the election were threatened by the Prime Minister on the 12th July at Bangalore with serious consequences with the object of unduly influencing them so as to make them change their decision to nominate Sri Sanjeeva Reddy as their candidate. The threat is alleged to have been repeated subsequently on a nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Ali Ahmed, Sri Yunus Saleem, Dr. Karan Singh, Sri Dinesh Singh, Sri Swaran Singh, Sri I.K. Gujral, Sri S.S. Sinha, Sri K.K. Shah and Sri Triguna Sen misused their position for furthering the prospects of the returned candidate by contacting a large number of electors on the telephone and openly telling them that if the electors did not vote for the respondent they would lose all the patronage which they would otherwise be given. Electors were called by some of the above named Ministers at their official residences and offices in Delhi and undue influence brought to bear upon them by ordering them to vote for the returned candidate. (g) According to paragraph 13(c)(iii) of the petition Sri Fakhrudin Ali Ahmed and Sri Yunus Saleem threatened the Muslim electors that Sri Sanjeeva Reddy was in fact a candidate of the Jan Sangh Party and if he was elected the fate of the Muslim community in India would be in danger. This undue influence was exercised over all the Muslim electors In the country and specially those in Parliament. An instance of this is given as having taken place between Sri Yunus Saleem and Sri Abdul Ghani Dar. (h) The workers and supporters of the respondent beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept those which were made against him or imputed to him and alleged to have been said or done at his instance or with his connivance. He stated categorically in paragraph 25 of the counter affidavit that he had been carrying on his campaign single handed and that in between July 30 and 13th August he was out of Delhi most of the time touring different parts of the country. He disputed the correctness of the charges made in the various sub-paragraphs of paragraph 13 and denied that he had been contacted by the Prime Minister at Delhi from Bangalore as alleged or that she had suggested that as soon as an official announcement regarding the selection of Sri Sanjeeva Reddy was made he should announce his own candidature for the office of the President. With regard to his press conference he said that he had only outlined the necessary qualifications for the office of the President and that his statement could by no means be read as an attack on the personal conduct or character of Sri Sanjeev Reddy. He said further that he had approved of the taking over of the portfolio of Finance from Sri Morarji Desai on the 16th July on the recommendation of the Prime Minister but the signing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove these statements. 319. The names of 18 persons were given as having received the said pamphlet at their residence by post in various places in India. They were all members of the Legislative Assemblies of Uttar Pradesh as also of Madhya Pradesh, Bihar and Chandigarh. Of these some but not all were examined in court. 320. Further, with regard to distribution of the pamphlet it was said that the persons already mentioned in paragraph 13(b)(iii) as also those mentioned in reply to the application for particulars given above distributed the same individually and in groups of two or more on all days between 11th and 15th August to the general body of electors frequenting the Central hall of Parliament. The names of 29 members of Parliament were given as the recipients of the pamphlets in the above manner. Further groups of M.Ps. were mentioned as having distributed the said pamphlets to some or other of the petitioners on the 11th August 1969 in the Central hall of Parliament. With regard to the telephone calls by Ministers exercising undue influence over the members of the electoral college referred to in paragraph 13(c)(i) about 30 M.Ps. were named as having been so contacted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulate the matter relating to or connected with the election of a President or Vice-President. By Act 31 of 1952, the Presidential and Vice-Presidential Elections Act (hereinafter referred to as the 'Act') Parliament made provisions for the conduct of Presidential and Vice-Presidential elections. Disputes regarding elections are dealt with in Part III of the Act containing Sections 13 to 20. Section 16 of the Act lays down the reliefs which may be claimed by a petitioner and Section 18 specifies the grounds for declaring the election of a returned candidate to be void. The relevant part thereof reads as follows :- 18(1) If the Supreme Court is of opinion- (a) that the offence of bribery 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; * * * (ii) * * * The Supreme Court shall declare the election of the returned ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine. 325. It will be noted that the words used in Sub-section (1) of Section 171C are very wide and Sub-section (2) though illustrative of Sub-section (1) does not purport to comprehend all the facets of undue influence under Sub-section (1). The statement of objects and reasons of the Act of 1920 make the intention of the legislature clear. It reads : The second sub-clause is merely explanatory of the general definitions in the first sub-clause and does not restrict the generality of the words used there. We have considered the criticisms of this clause based on the generality of the words employed but we are satisfied that any attempt at specific enumeration would be open to serious danger of loopholes in what we regard as a most salutary provision. On the facts of this case the vital question before us is, whether the mere publication of a false statement highly derogatory of the personal conduct or character of a candidate or the dissemination of a scurrilous pamphlet depicting a candidate as one of lecherous character will fall under Sub-section (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h may be perfectly natural and proper in itself, but is capable of being unfairly used..... 329. If it can be shown that one party exercised such domination over the mind find will of the other that his independence of decision was substantially undermined, the party whose will was overborne will be entitled to relief on the ground of undue influence. 330. There is no need for any special relationship to exist between the parties, although, of course, it may do so. The mere fact that domination was exercised is sufficient; no abuse of confidence need be proved." 331. According to Cheshire and Fifoot on the Laf of Contract (7th Edition) p. 264 : The Courts have never attempted to define undue influence with precision, but it has been described as "some unfair and improper conduct, some coercion from outside, some overeaching, some form of cheating, and generally, though not always, some personal advantage obtained by" the guilty party. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damage, harm or loss, or by the threat thereof. 4. The impeding etc. the due exercise of the franchise etc. by abduction, duress, or any fraudulent device or contrivance. 334. Section 101 of the Representation of the People Act, 1949 appears to be that latest codification of the English law on the subject of undue influence. Under Sub-section (1) a person shall be guilty of corrupt practice if he is guilty of undue influence. Sub-section (2) of the section is in two parts. Under Clause (b) a person shall be guilty of undue influence if, by abduction, duress or any fraudulent device or contravance, he impedes or prevents the free exercise of the franchise of an elector or proxy for an elector, or thereby compels, induces or prevails upon an elector or proxy for an elector either to vote or to refrain from voting. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith any injury of any kind; 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 that candidate or elector within the meaning of this paragraph : (b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this paragraph. 338. It will be noticed that there is a good deal of similarity between this provision and that in Section 171C of the Indian Penal Code. There is greater similarity between 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the free exercise of an electoral right so as to attract Section 123(2) of the Act. Even in England it would be an illegal practice within the meaning of Section 91(1) of the Representation of the People Act. By itself it would not make the publisher of the statement guilty of undue influence. While enacting the statute of 1952 the legislature had before it the electoral offences codified in Chapter IX-A of the Indian Penal Code. It recognised the necessity of a law prescribing for the annulment of an election only if bribery or undue influence was committed thereat. Such offence if committed by a candidate or by any person with his connivance was enough for declaring the election void. But if committed by any person who was not the returned candidate nor one acting with his connivance it was not to affect the election unless the result of it had been materially affected by such malpractices. So far as this branch of the law is concerned the only difference between the Act of 1951 and the Act of 1952 lies in the fact that under the latter Act corrupt practices of bribery or undue influence by one who was not a party to the election or his agent are also brought in. But the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised : it would be sufficient to show that there was an attempt to pervert the unfettered choice of a voter by resort to illegitimate persuasion inter alia by pressing upon him a document containing such a false statement of fact relating to the conduct or character of a candidate as would make any right-thinking man shrink from selecting him and shun him in the process of selection of a candidate. In such a case it would not be difficult to hold that there was in fact malice behind the publication and the adoption of a fraudulent device calculated to defeat or deflect the will of the elector. In this view of the matter the publication of a false statement of fact relating to the conduct or character of a person coupled with an attempt to persuade electors by such publication 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 Amrit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep. In Amritsar City (Mohammadan) Constituency Case No. 2 the meaning of undue influence under the Corrupt Practices Order, Order, 1936 again fell to be considered. There a question arose as to whether certain news items and posters in which the unsuccessful person was wrongly and falsely described as standing as a candidate on a Muslim League ticket would fall within the mischief of the Order. In their report the Commissioners stated (at p. 157) : 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. The case for the petitioner there was that one Maulana Zaffar Ali Khan by making an appeal to the voters restricted their choice to Mohammad Sadiq under pain of spiritual penalties and even 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not amount to undue influence inasmuch as it was shouted for several months before the election was held and not a single instance was brought on record in which the threat contained in the slogan was carried out. On the facts of the case, it was held that none of the parties could be said to have uttered slogans for the purpose of directly or indirectly interfering with any person's free exercise of his electoral right. Reference was also made to the fact that there was no evidence that any complaint even had been made about the shouting of the slogans to the agents of the petitioners. 344. In Amir Chand v. Sucheta Kripalani 18 E.L.R. 209. one of the questions which engaged the attention of the Election Tribunal was whether a false statement in a daily newspaper to the effect that the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence had been used or even threatened. Methods of inducement which are so powerful as to leave no free will to the voter in the exercise of his choice may amount to undue influence. Imaginary terror may have been created sufficient to deprive him of free agency. With regard to the poster with the picture, the learned Judge said (at p. 219) : It was an artful device to catch the imagination of the voters. It terrorised the voters and was likely to create in their mind a feeling of terror, fear, hatred or strong prejudice against the Congress.... It at least did create or was likely to create or had the tendency to create terror and an unknown fear in the mind of the voters. The picture of the dead boy with the caption frightened the voters or was likely to frighten them and it was intended to overawe voters which interfered or was likely to interfere or had the tendency to interfere with the free exercise of electoral right of the voters. The learned Judge was in favour of allowing the appeal but his colleague, Rao, J. expressed a different view. According to him (p. 234) : The picture simply represents Sunil De after being shot at by the police firing with the caption underne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was from a person who was a religious leader and as such had a great influence on the Namdharies. The Court expressed the view that the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him, and has the right freely to express his opinion on the comparative merits of the contesting candidate and to canvass for such of them as he considers worthy of confidence of the electors. Such a course of conduct on his part, would amount to an abuse of his great influence if the words used in a document, or utterances in his speeches leave no choice to the person addressed by him in the exercise of his electoral right. Incidentally it may be noted that the learned Judges stressed what was material under the Indian law was not the actual effect produced but the doing of such acts as were 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence or attempt at interference with the free exercise of electoral right and would be undue influence.... What is contained in Sub-section (2) of Section 171C is merely illustrative. It is difficult to lay down in general terms where mere canvassing ends and interference or attempt at interference with the free exercise of any electoral right begins. This is a matter to be determined in each case : The question which primarily engaged the attention of this Court in the above case was, whether a letter addressed by the Prime Minister to all the electors in which she commended Dr. Zakir Husain and requested the electors to vote for him amounted to the exercise of undue influence and on the facts of the case the answer was in the negative. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case plumbs depths of filth and meanness seldom reached. It was not a mere attempt to dub Sri Sanjeeva Reddy us a man generally devoid of good principles. It accused him of conduct wholly unbefitting a gentleman not to speak of a person who aspired for election to the high office of the President of India and charged him with acts of misdemeanour towards members of the other sex giving instances and in most cases mentioning the occasions at which he is said to have committed the indecent acts imputed to him. It was calculated to engender strong prejudice in the minds of electors against Sri Sanjeeva Reddy both in his personal capacity and as being the nominee of a group of persons described as usurpers of power in the Congress Party. It is 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners argued that the paramount duty of the court in such cases was to uphold the validity of an election only if it was pure and although the court should be slow in upsetting the result of an election on mere trivialities or irregularities it should not hesitate to do so when the evidence disclosed commission of corrupt practice on a large scale merely because of the deviation of the evidence from the pleading. It was further suggested that although the charges savoured of criminality they were not investigated as in a criminal case but the hearing of the election petition was more akin to that in a civil proceeding and the court should come to its conclusion on the issues framed and the evidence adduced not on the balance of probabilities but on the strength of the direct evidence adduced. 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the persons charged therewith have committed the offence on the strength of evidence which leaves no scope for doubt as to whether they had or had not done so. It must also be remembered that even if there be no provision in the Act of 1952 of giving notice to the persons who are charged with having committed undue influence or of impleading them as parties, it is the duty of the election petitioners to lead direct evidence on the point and the respondent cannot take shelter behind the plea that he owes no duty to call them or to disprove the allegations made against them if he is to have his election maintained by the Court. There is a special provision in the Act of 1952 which is absent from the Act of 1931 in that an election 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well-known mat the old Congress Party is no longer united and that there has been a sharp cleavage among its members and before the hearing of the election petitions one group came to be known as Congress (O) and the other Congress (R). The cleavage is referred to in the petition itself. Persons who have figured as witnesses but do not belong to either of these parties generally but not universally have their affinity for one side or the other. It has also come out in evidence that the split in the Congress Party originated back in April 1969 when there was a meeting of the A.I.C.C. at Faridabad. The difference of opinion seemed to stem from opposite views held by some leading members about the steps to be taken for the economic progress of the country. It came out clearly in the evidence of Sri Shankar Dayal 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtfolio of Finance was withdrawn from Sri Morarji Desai and the Bank Nationalisation Ordinance was promulgated just before the meeting of Parliament in July 1969. The split in the party which had been dormant before came to limelight soon afterwards. Although the two conflicting groups came to be known as Congress (O) and Congress (R) some time thereafter there can be little doubt that the seed of dissemination was bearing fruit and mutual suspicion between the members of the two groups came to the surface. The Presidential election which was held on 16th August 1969 was in the offing but it seemed to have been made the venue for clash of ideologies and test of strength. According to Sri I.K. Gujral a witness for the respondent, the under current of difference between the parties since the Bangalore Session of the Congress came to the surface early in August 1969, the decisive factor being Smt. Tarkeshwari Sinha's article in the Search Light suggesting a move to throw out the Prime Minister. According to Sri Gujral many people were of the view that the Congress President Sri Nijalingappa had tried to make a deal with Sri Ranga of the Swatantra Party and Jan Sangh for a coalitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... past traditions. Correspondence went on in the same vein up to the 18th August even after the taking of the poll. According to Sri Nijalingappa's letter to the Prime Minister dated the 15th August the members of the Parliamentary Board had agreed on the 1st August that he might contact all parties and voters to seek for their support and he had reported to the Congress Parliamentary Board meeting held on the 5th about his talks with the opposition parties. Further there never was any understanding with Jan Sangh or the Swatantra Party beyond seeking their support at the Presidential election and the demand for a free vote which had already been raised was in fact a claim of right to vote for the respondent, a candidate nominated by the Communists and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i's death it is a small click of unscrupulous persons who landed themselves into what is called the syndicate and have tried to become virtual dictators. It ascribes the heavy defeat suffered by the Congress Party in the general election of 1967 to the management of its affairs by evil men. The reference seems to be to Sri S.K. Patil, Sri Atulya Ghosh and Sri Kamaraj. It then proceeds to state (a) that at the then recent, Bangalore session of All India Congress Committee the Prime Minister set out a programme for immediate reforms in the economy of the country, (b) this not being to the liking of a small coterie described as gangster politicians they "decided to set up one of their men, a corrupt and immoral person, Sanjeeva Reddy as the Congress candidate for the august post of President of India" and (c) (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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and racketeering, they have to use their powers to defeat the syndicate inter alia by rejecting Sri Sanjeeva Reddy. The pamphlet winds up with the following : On each and every one of us lies the sacred responsibility of seeing to it that this living monument of moral depravity does not become the President of India. Remember this when you cast your vote in the ballot box on 16th August, 1969. 366. Although Mr. Daphtary put up a faint argument that this might be the work of any party or group opposing the Congress and interested in its decline and fall, one can not unreasonably take the view that in all likelihood a group of disgruntled Congress members were at the back of it. It is to be noted that in the whole of the pamphlet which is a fairly long one, there is no 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other witnesses examined on behalf of the respondent. 368. Sri R.K. Sinha (R.W. 8) stated that "the syndicate was taking the Congress to the funeral pyre in West Bengal, Madras and Kerala". He also said that the majority of the group known as young Turks had declared their support for the respondent. He admitted having made a public speech about this time to the effect that the members of the syndicate were opposed to the formation of Congress Socialist Party and had "planned to fill the political vacuum after Pandit Nehru." When his attention was drawn to the pamphlet Sri Shashi Bhushan (R.W. 38) approved of the statements made in the first three paragraphs namely that a set of self-seeking, corrupt 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following witnesses for the petitioners, namely, Sri Kanwarlal Gupta (P.W. 2), Sri K.S. Chawda (P.W. 3), Sri N.P.C. Naidu (P.W. 6) Sri Shiv Narain (P.W. 12), Smt. J.B. Shah (P.W. 13), Sri N.N. Patel (P.W. 14), Sri Mohanlal Gautam (P.W. 27). Sri C.D. Pandey (P.W. 17), Sri D.N. Deb (P.W. 18), Sri Hukumchand Kachwa (P.W. 20), Sri M. Rampure (P.W. 23), Smt. Pushpa Mehta (P.W. 24), Sri Morarji Desai (P.W. 27), Sri Rani Kishan Gupta (P.W. 30), Sri D.S. Raju (P.W. 35), Sri Patil Putappa (P.W. 36), Sri Sher Khan (P.W. 37), Sri Choudhuri A. Mohamed (P.W. 38), Sri C.M. Kedaria (P.W. 39), Sri N. Ramreddy (P.W. 40) and Sri Abdul Ghani Dar (P.W. 41). On the other hand a substantial number of witnesses examined by the respondent numbering 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue his intention to invite him to dinner at his house although he bad already mentioned the subject to Sri Sanjeeva Reddy. He also said that he had discussion with other members of Parliament about the pamphlet who held the same view as himself. P.W. 12 Sri K.S. Chawda, another member of Parliament said that he had received a copy of the pamphlet in the Central hall of Parliament from Sri Krishna Kant, member of the Rajya Sabha and having read it came to the conclusion that if Sri Sanjeeva Reddy was elected to the Presidential office he would turn the Rashtrapati Bhavan into a center of immorality. Of his own he said nothing about Krishna Kant's appeal to him but when he was specifically asked whether Sri Krishna Kant had told him 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent as he was a champion for the cause of labour and that Sri Sanjeeva Reddy was a character-less person as could be seen from the pamphlet itself. He would have the court believed that after reading the pamphlet he thought that a person possessing a character like Sri Sanjeeva Reddy's if elected would convert the Rashtrapati Bhavan into a brothel. Sri Mahadevappa Rampure, P.W. 35 said that he had got a copy of the pamphlet from Sri Yunus Saleem who had told him at the time of the distribution that the witness could get enough information from the pamphlet. Sri R.K. Gupta, P.W. 43, a member of the Lok Sabha who had received a copy of the pamphlet at his residence said that he had gone to the respondent thereafter on being informed by his 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was in fact collecting signatures of others on any document. 372. It was only Sri Abdul Ghani Dar who said that at the time of giving him a copy of the pamphlet in the Central hall Sri Yunus Saleem had told him that Sri S. Reddy was a debauchee, that he was in collusion with Jan Sangh, that the Prime Minister and others were all against Sri Sanjeeva Reddy and that if Sri Sanjeeva Reddy won the election it would be a victory for Jan Sangh and Muslims would be eliminated. 373. The above is not exhaustive of the evidence adduced on behalf of the petitioners with regard to the distribution of the pamphlet in the Central hall as a means of exercising undue influence over electors but it is a fair summary of the evidence adduced which on the face of it barring that of Sri Abdul Ghani Dar, falls far short of a personal appeal or any effort to 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers about the exercise of undue influence by mere dissemination of the pamphlet which could be contradicted by the respondent's witnesses. 377. The above being my view on the question of the exercise of undue influence by means of the publication of the pamphlet and the dissemination of it, the question of the respondent's conniving at it does not arise. I may however indicate shortly the respective cases of the parties. It was the case of the petitioners that the pamphlet originated from the camp of the Prime Minister and her supporters who were actively helping the respondent in his election campaign and it was these supporters who had taken to the mean trick of publication or me pamphlet at the eleventh hour before 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& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndah was fantastic. The respondent's son-in-law also gave evidence to the same effect. Sri R.K. Gupta, P.R. 43, said that he had met the respondent two or three days before the date of the poll and told him that the pamphlet should be contradicted by his party when the respondent gave him the same reply as he had done to Smt. Tarkeshwari Sinha. Again this evidence was denied by the respondent as well as by his son-in-law. The evidence adduced on the two sides is directly contradictory to each other and it would have been the duty of the court to analyse the same in greater detail and indicate the reasons for accepting one version and rejecting the other if the court was to take the view that there was exercise of undue influence by the mere dissemination of a sordid pamphlet. In the circumstances of the case it would be useless to go into the question any further. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vitation confirming the throwing out of a party at the Mysore Home by Sri G.S. Pathak on the 10th August and invitation to him thereat and stated that he distinctly remembered having met Sri Dinesh Singh in that party. Quite a number of witnesses examined on behalf of the respondent gave evidence to the effect that if Sri Dinesh Singh had gone to Lucknow between the 1st and 16th August they would have come to know of it and so far as their recollection went Sri Dinesh Singh did not go there during that period. While it is true that the diaries produced by the Secretaries of Sri Dinesh Singh were not as full or complete as regards his engagements as one might expect them to be, I have no hesitation in holding that Sri Dinesh Singh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters were anti-Muslim. As I have held that Sri Dinesh Singh did not go to Lucknow at the time alleged he could not have canvassed support for the respondent as deposed to by the witnesses. 380. In his evidence the respondent stated that he had not spoken to the Prime Minister or any other Minister before announcing his candidature for the office of the President of India. He had nothing to do with the Congress Party after 1957. After demitting office of the Vice-President of India working as the President he had left Rashtrapati Bhavan and gone to his son-in-law's place in Defence Colony. He had been out of Delhi from the 28th July to 13th August going round to the different States : he bad come back to Delhi on the 10th 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esidence over the telephone by Sri Yunus Saleem to these three persons on the same day in the Central hall of Parliament. There was some amplification of it in the evidence. Sri Abdul Ghani Dar's statement in the witness box that Sri Yunus Saleem had called him aside in the Central hall of Parliament to convey the threat to Muslims in case of Sri Sanjeeva Reddy's success varies widely from his case in the petition that such communication was made in the presence of a number of members of Parliament. Sri Abdul Ghani Dar had said further that he had been approached over the telephone by Sri Fakhrudin Ali Ahmed in the evening of the 11th August, that Sri Fakhrudin Ali Ahmed had told him of the information conveyed to 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 Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He further denied having spoken to Sri Sher Khan or Sri Choudhury A. Mohamed as suggested by these two witnesses. Sri Yunus Saleem admitted having had a talk with Sri Sher Khan about the Presidential election but added that when he was informed that Sri Sher Khan was committed to Sri Nijalingappa and that he was working for Sri Sanjeeva Reddy the question of any further talk did not arise. So far as Sri Choudhury A. Mohamed is concerned, Sri Yunus Saleem admitted that he used to visit him at his house but no talk regarding the Presidential election had taken place between them. The witness admitted having had a talk with Sri Abdul Ghani Dar in the Central hall of Parliament about the Presidential election. He admitted 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y also note that officers from the Directorate of Telephone from Delhi were summoned to produce records of trunk telephone calls made by Ministers in the election days obviously with the idea of showing that they were approaching others for the purpose of active propaganda in support of the respondent. The best evidence in this regard would have been the statement on oath of persons who had been so approached but no attempt worth the name was made in this regard. Charges of propaganda on communal basis on the strength of conversations either over the telephone or personally but covertly can be launched very easily but in the absence of any independent corroboration they do not inspire credibility and on the evidence 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arting from his earlier attitude that the members of the electoral college belonging to the Congress fold should back Sri Sanjeeva Reddy solidly can be dismissed summarily. Sri Kamlapati Tripathy R.W. 61 gave a cogent explanation for his change of attitude just before the poll and according to him he pleaded for freedom of vote in order to avoid a split in the party which was fairly evident at that time. The evidence adduced by the petitioners does not establish that the change of attitude was due to any scare by the workers and supporters of the respondent as alleged. The rift in the party became a matter of public knowledge in the first week of August and the process of the members of the Congress party arraying themselves 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that some of the allegations made in paragraphs 8(3) and (13) of the petition would be sufficient pleading of commission of undue influence under Section 18(1)(a) of the Presidential and Vice-Presidential Elections Act, 1952. As regards issue 4(b) the only allegation which was substantiated was a fair amount of publication and dissemination of this scurrilous pamphlet which by itself did not amount to the exercise of undue influence. Sri Abdul Ghani Dar's evidence on this point is wholly unacceptable. My answer to issue 4(c) in all its branches is in the negative. 393. We indicated on the 11th May 1970 that we would not award any costs to either side. As the respondent has succeeded in the petition normally he could expect to get an award of costs in his favour. But one cannot 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 neces ..... X X X X Extracts X X X X X X X X Extracts X X X X
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