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PETITIONER: S.HARCHARN SINGH

       Vs.

RESPONDENT: S. SAJJAN SINGH AND ORS.

DATE OF JUDGMENT29/11/1984

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1985 AIR  236            1985 SCR  (2) 159  1985 SCC  (1) 370        1984 SCALE  (2)834  CITATOR INFO :  RF         1986 SC   3  (222)

ACT:      Representation of  the People  Act (43  of19s]). s. 123 (3) (as  amended by Act 40 of 1961)-Effect of amendment-Even a single  appeal on  ground of  religion, etc.  amounts to a corrupt practice.      Representation of the People Act, 1951, s. 123 (Z), (3) and (3A)-Scope  and object  of-object of  amendment-Duty  of Court-Appeal to  religion-Test Substance and total effect of statement to be considered.      Hukamnama -What  is-Test for determination thereof-Shri Akal Takth  Importance in Sikh community-Communications from Akal Takht  in any  form whatsoever-Whether Hukamnama-Effect thereof on  the members  of Sikh  community-Writing in Party papers and  speeches made  by prominent leaders of the Party at election meetings to the same effect-No express denial or explanation by the maker-Whether inference can be drawn that the allegation stands proved.      Representation of  the People  Act, 1951,  s. 123  (3)- Appeal on  ground of  religion-Evidence mostly  oral-Duty of Court-Standard of  proof required  and Test to be applied to determine corrupt practice.      Representation of  the People  Act, 1951,  s. 123  (3)- Constituency,  a   mixed  one-Hindu  votes  and  Sikh  votes practically  divided   equally-Akali  Party,  to  which  the returned candidate  belonged to,  in alliance  with CPI (M)- Whether  appeal   on  ground  of  religion  probable-Whether probabilities  of   such  a  campaign  can  outweigh  direct evidence if acceptable by Court.      Practice and  Procedure-Source to  be disclosed  for  a proper verification  of an  affidavit or a petition based on certain information.

HEADNOTE:      The expression  "systematic" has been deleted from sub- section (3)  of section  123 of  the Representation  of  the People Act  1951 by  the Amending  Act by a candidate or his agent or  by any  other  person  with  the  consent  of  the candidate or  his election  agent or  by any other person on the ground  of  his  religion,  race,  caste,  community  or

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language etc. would be a corrupt practice. 160      The appellant challenged the election of respondent No. 3 to  the Punjab  Legislative Assembly on the allegations of corrupt practice.  It was  contended that  section 123(3) of the Representation  of the  People Act had been violated for three reasons,  namely, (a)  Sponsorship of respondent No. 3 and distribution  of election ticket to him for the Assembly elections  by   the  Akal   Takht,  "the  supreme  religious authority of  the Sikhs", (b) Issue of Hukumnama (Ex.p-4) by the Jathedar  of the  Akal Takht  in the  matter of Assembly elections having regard to the circumstances in which it was issued, indicated  that the  approval of the Akal Takhat was obtained in order to give his decision a colour of religious authority and  (c) Appeal to the voters at election meetings by referring  to the Hukamnama, to the writings in the Akali Times and  exhorting them  to vote  for respondent  No. 3 by applying to the religious sentiments and warning them of the consequences of not doing so. It was further alleged that an ex-Chief Minister of the State as well as the respondent No. 3  himself  had  represented  to  the  voters  at  different election meetings  that respondent  No. 3 had been sponsored by the Akal Takht.      Respondent No.3  denied the  aforesaid allegations  and contended that the alleged Hukamnamas were not Hukamnamas of Akal Takht.      The High  Court held  that Akal  Takht was  a symbol of political and  religious powers and the documents alleged to be the  Hukumnamas of Akal Takhat, but contained decision of the leaders of the Akali Party written on the letter head of the Akal  Takhat  and  announced  by  a  Jathedar,  and  the appellant had  not  succeeded  in  proving  the  charges  of corrupt practice.  The  election  petition  was  accordingly dismissed.         The  contentions  raised  in  the  High  Court  were reiterated by  the appellant before this Court. In addition, it was  contended (i)  The documents  shown at  the meetings were Hukumnamas  and having  regard  to  the  background  it cannot be  said that it did not have the effect of Hukumnama on the  community at  large of  inducing them to believe 158 ignoring the  claim of  the candidate nominated by Shri Akal Takht and  represented to be supported by Hukamnama would be an act  of sacrilege  on the  part of  a good Sikh; and (ii) Respondent No.  3 being a Sikh and a member of the Akali Dal and having  known of  the conditions  precedent  which  were required to  be fulfilled before a proper Hukumnama could be issued had  not chosen  to raise  these contentions  in  his written statement.  It was  also urged  that the  concept of secular democracy  is the  basis of  the Indian Constitution and that the paramount and basic purpose under lying section 123 (3)  of the  Act is  the concept  of secular  democracy. Section 123  (3) was enacted to eliminate from the electoral process, appeals  to  divisive  factors  such  as  religion, caste, etc.  which give  vent to  irrational passions. It is essential  that  powerful  emotions  generated  by  religion should not  be permitted to be exhibited during election and that decision  and choice  of the people are not coloured in any way.  Condemnation of  electoral campaigns  on lines  of religion.  caste,   etc.  is  necessarily  implicit  in  the language of  section 123  (3) of  the Act.  Consequently the section must be so construed as to suppress the mischief and advance the remedy. 161      Respondent No.  3 contested  the  appeal,  and  it  was urged: (i)  in order  to constitute a Hukumnama proper there

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were certain  conditions precedent, A which were required to be fulfilled,  namely, there  should be  a meeting of Sarbat Khalsa, that  is, a  meeting of  all the  Sikhs and secondly anunanimous decision  must be  arrived at  which  should  be followed by  the approval  of Shiromani  Gurdwara Prabandhak Committee and  the decision  should be announced from Shri A kal Takht  and that  in the  instant case  no such Hukamnama held  been   issued;  (ii)  the  constituency  was  a  mixed constituency equally  B divided  into Hindu  votes and  Sikh votes and an appeal in the name of the Sikh religion in such a situation  was unlikely;  and (iii) the Akali Party was in alliance with  CPI (M)  and it was most improbable that when one of  the allied  parties was a Marxist Party, a candidate of Akali Dal would appeal in the name of religion.          Allowing the appeal, C ^      HELD  :1.  Respondent  No.  3  was  guilty  of  corrupt practice under  section 123 (3) of the Representation of the People Act, 1951. [189D]      2. As  a result  of amendment  of  sub-section  (3)  of section 123  of the  Act even a single appeal by a candidate or his  agent or by any other person with the consent of the candidate or  his election  agent to  vote or  refrain  from voting for  any person  on the ground of his religion, race, caste, community  or language  would  be  corrupt  practice. [1656]      3. Section  123 (2),  (3) and  (3A)  of  the  Act  were enacted to  eliminate from  the electoral process appeals to those divisive factors which arouse irrational passions that run counter  to the  basic tenets  of the  Constitution. Due respect for  the  religious  beliefs  and  practices,  race, creed, culture  and language of other citizens is one of the basic postulates  of our  democratic system. The line has to be drawn  by the  court between what is permissible and what is prohibited  after  taking  into  account  the  facts  and circumstances of  each case  interpreted in  the context  in which the  statements or  acts complained of might have been made. The court has to examine the effect of statements made by the candidate upon the minds and feelings of the ordinary average voter. [171B-D] F      Ambika Sharan  Singh v.  Mahant Mahadev  and  Giri  and others,  [1969]  3  S.C.C.  492  and  Ziyauddin  Burhanuddin Bukhari v.  Brijmohan Ramdas  Mehra and  Ors.. [1975] Suppl. S.C.R. 281, relied upon.      4.  With   a  view  to  curb  communal  and  separatist tendencies, section  123 (3)  of the Act has been amended in 1961. In  order to determine whether certain activities come within the  mischief of  section 123 (3), regard must be had to the  substance of the matter rather than to the mere form or phraseology. The inhibition of section 123 (3) should not be permitted  to be circumvented indirectly or by circuitous or subtle devices. The court should attach importance to the effect and  impact of the acts complained of and always keep in mind  the paramount purpose, namely, to prevent religious influence from  entering the electoral field. The nature and consequence of an act may not appear n its very face but the same can be implied having regard to the language, H 162  the  context, the status and position of the person issuing the statement,  the appearance  and known  religion  of  the candidate, the class of persons to whom the statement of act is directed, etc. [176C-F]      5. It would not be an appeal to religion if a candidate is put  up be  saying vote for him because he is a good Sikh or he  is a  good Christian  or he  is a good Muslim, but it

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would be  an appeal to religion if it is publicised that not to vote  for him  would be  against Sikh religion or against Christian religion  or against Hindu religion or to vote for the other  candidate would  be an  act against  a particular religion. It  is the total effect of such an appeal that has to be borne in mind in deciding whether there was all appeal to religion  as such  or not.  In each  case, therefore, the substance of the matter has to be judged. [182E-G]      This question,  however, has  to be kept in view within proper limit  and religious  leaders have  right  freely  to express their  opinion on  the  comparative  merits  of  the contesting candidates  and to canvass for such of them as he considered worthy  of the  confidence  of  the  electorates. [183B]      Shubnath Deograrm  v. Ram  Narain Prasnd  an(l  others, [1960] 1  S.C.R., 953,  Ram Dial  v. Sant  Lal  and  others, [1959] Supp.  2 S.C.R.,  748 and  Kultar Shingh  v.Mukhtiyar Singh, [1964] 7 S.C.R., 790, followed.      6. Whether  the documents  said to  be Hukamnamas  were actually Hunkamnamas  or not  should not  be  decided  in  a technical manner.  in these  matter the Court has to examine the effect  or the  statements made  by the candidate on his behalf upon  the minds  and the  feelings  of  the  ordinary voters of the country. It is undisputed that Shri Akal Takht enjoys  a   unique  position   amongst  the   Sikhs.  It  is indubitable that  any communication  from  Shri  Akal  Takht which  is   represented  by  eminent  members  of  the  Sikh community as Hukamnama would have great religious persuasive value even though strictly speaking it might or might not be a Hukamnama. [182A-D]      Zyauddin Burhanuddin  Bukhari v. Brijmohan Ramdas Mehra JUDGMENT:      Glory of  the Akal  Takht, p.  97  by  Harjinder  Singh Dilgeer, Singh  The Sikh  Religion Vol.  IV, p.  3 by  M. A. Macauliff and a A History of the Sikhs by Khuswant Singh Vo. 1: 1469-1839, p. 63, referred to.      7. From  the evidence  on record,  in the background of the fact  that some  communications from  Akal Takht call it Hukamnama or  any other  name were  issued and the issues of editorials of  Akali Times  were pointed out by the ex-Chief Minister at  the meetings,  and the same had not been denied by him,  it is  apparant that appeal in the name of religion was made  on behalf  of the  respondent No.  3. Though  some facts stated in the oral evidence about the meetings had not been stated  in the petition, but when evidence was tendered and was  not shaken  in cross-examination  and the  versions have a  ring of  truth in the background of other facts, the factum of  appeal to  religion by  the respondent  No. 3 has been proved. This conclusion becomes irresistible in view of absence of  any express  denial by the ex-Chief minister and in the  absence of  any explanation for not calling him as a witness on this point, [188-E to 189A] 163      8. It  is not  a question  of merely  proving a fact by adverse presumption.  A In  cases where  there  is  positive evidence to  prove a  fact and  there is  no denial  by  the person who is most competent to deny that fact and no reason was given for his not giving evidence the conclusion is that the evidence advanced must be accepted. In the instant case, in the  background of  his eminence and his position, as the ex-Chief Minister,  his relationship  with respondent  No. 3 and especially in view of the fact that respondent No. 3 had in fact  been nominated  by the  same group on behalf of the Sikh community  with which  the  ex.Chief  Minister  was  so intimately  connected  leads  to  the  conclusion  that  the

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evidence  advanced  on  behalf  of  the  appellant  must  be accepted. It  is clear that the ex-Chief Minister as well as the elected  candidate himself represented to the electorate that respondent  No. 3  was a  nominee of the Akal Takht and that an  appeal to  vote for respondent No. 3 in the name of Akal Takht  with all  the consequences  of Hukamnama of Akal Takht was highlighted before the electorate [185H; 186A-D1 C      9. In matters of this nature, the evidence naturally is mostly oral.  Especially where  the charge  is a  grave one, namely, corrupt  practice which  if proved  would disentitle the candidate  to contest the election for sometime to come, the Court must proceed with caution. [188C]      Rahim Khan  v. Khurshid  Ahmed &  ors., [1975] I S.C.R. 643 and  Ch. Razik  Ram v.  Ch. I.S.  Chauhan & ors., A.I R. 1975 S.C. 667, relied upon.      Kanhaiyalal v. Mannalal & ors., [1976] 3 S.C.R. 808 and M. Narayama  Rao v.  G. Venkata Reddy & ors., [1977]1 S.C.R. 493, referred to,      10 While  insisting on  standard of  strict proof,  the Court should  not extend or stretch this doctrine to such an extreme extent  as to  make it well nigh impossible to prove an allegation  of corrupt  practice. Such  an approach would defeat and frustrate the very laudable and sacrosanct object of the  Act in  maintaining Purity of the electoral process. [189B]      Ram Saran Yadav v. Thakur MIJneshawar Nath Singh & ors. (Civil Appeal No. 892 (NCE) of 1980), relied upon.      11. The  contentions of the respondent No. 3 that since it was  a mixed  constituency and  his party was in alliance with CPI  (M), it  was unlikely  and improbable  to make  an appeal in  the name of religion, are rejected for the reason that if  there is  conclusive evidence  to that  effect then such a theory would not outweigh the facts proved. These are only probabilities  of a  situation but  if there  is direct evidence of  propaganda or  campaign  by  candidate  in  the election in  the name of religion, the probabilities of such a campaign  not being  made in  view  of  other  surrounding circumstances, cannot  outweigh the  direct evidence  if the Court is  otherwise inclined to accept such direct evidence. [170B.C]      Ambika Sharan  Singh v.  Mahant Mahadev  and  Giri  and others, 1969] 3 S.C.C. 492, followed.      12. For  a proper  verification of  an affidavit  or  a petition based on certain informations, the source should be indicated. But in the instant case? 164 this question  was not examined further because no objection at any stage was taken. [189      Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & ors  [1975] Suppl.  S.C R. 281 Padmabati Dasi v. Rasik Lal Dhar. I.L.R.  XXXVII Calcutta 259 at 260 and Hardwari Lal v. Kanwal Singh, [1972] 2 S.C.R. 742 followed.

&      CIVIL APPELLATE  JURISDICTION: Civil  appeal  No.  3419 (NCE) of 1981      From the  Judgment and  order dated  the 14th  October, 1981 of  the Punjab  and  Haryana  High  Court  in  Election Petition No. 40 of 1980        Soli  J. Sorabji,  K. P. Bhandari S. C. patel and Dr. Ruksana Swamy for the appellant.      G. S. Grewal and R. A. Gupta for the Respondent.      The Judgment of the Court was delivered by

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    SABYASACHI  MUKHARJI,   J.  The   appellant   and   the respondents contested  the election  to  Punjab  Legislative Assembly  held  in  May,  1980  from  Muktsar  Constituency. Polling was  held on  31st May,  1980  and  the  result  was declared on  1st June,  1980 in  which the appellant secured 29600 votes  and respondent  No. 3  secured 30003 votes. The other candidates  got only  nominal votes.  There was thus a difference OF  403 votes  in favour of the respondent No. 3. Respondent No.  3 was  declared  elected.  The  election  of respondent No.  3 was  challenged by  an  election  petition alleging that  the respondent  No. 3 had indulged in corrupt practice in  the said  election and as such his election was liable to  be set aside and he was liable to be disqualified for corrupt  practice. Corrupt  Practice make  the  election liable to  be set  aside under  section 101  (l) (b)  of the Respondent of  the People  Act, 1951, hereinafter called the Act which is as follows:-      "100. Grounds for declaring election to be void- 1.   Subject to  the provisions  of sub-section  (2) if  the      High Court is of opinion-      (a) ............      (b) that  any corrupt  practice has been committed by a re- 165      turned candidate or his election agent or by any person with the  consent of  a returned candidate or his election A agent; or"      What are  deemed to  be corrupt practices are indicated in section  123 of  the Act.  Sub-section (3)  of  the  said section is as follows:-      "The appeal by a candidate or his agent or by any other      person with  the consent of a candidate of his election      agent to  vote or refrain from voting for any person on      the ground  of his  religion, race, caste, community or      language of  the use, or appeal to religious symbols or      the use of, or appeal to, national symbols, such as the      national  flag   or  the   national  emblem,   for  the      furtherance of  the prospects  of the  election of that      candidate or for prejudically affecting the election of      any candidate:      Provided that  no symbol  allotted under  this Act to a      candidate shall be deemed to be a religious symbol or a      national for the purpose of this clause".      It may  be mentioned  that before the amendment Act, 40 of 1961,  effected on  12th September, 1964, sub-section (3) of section 123 of the Act was as follows:- E           "The systematic appeal by a candidate or his agent      or by  any other person, to vote or refrain from voting      on grounds of caste, race, community or religion or the      use of,  or appeal to, religious symbols or the use of,      or appeal  to, national  symbols, such  as the national      flag or the national emblem, for the furtherance of the      prospects of that candidate’s election".      As  a   result  of  this  amendment,  inter  alia,  the expression "systematic"  has been  deleted and only "appeal" by a  candidate or his agent or by any other person with the consent of  the candidate  or his  election agent to vote or refrain from  voting for  any person  on the  ground of  his region, race caste, community or language or color continues to be corrupt practice. The statement of objects and reasons for introducing amendments in section 123, 125, 139 and 141. Of the Act in 1961 stated inter.alia, as follows .-      "For curbing communal and separatist tendencies in 166      the country  it is  proposed to  widen the scope of the

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corrupt practice  mentioned in  clause (3) of section 123 of the 1951  Act and to provide for a new corrupt practice (See sub-section (3) and (3A) of section 123) and a new electoral offence for  the promotion  of feelings of hatred and enmity on grounds  of religion,  race, caste, community or language (See new section 125) ".      Therefore even  a single  appeal by  a candidate or his agent or  by any  other  person  with  the  consent  of  the candidate or  his election  agent to  vote  or  refrain  for voting from  any person on the ground of his religion, race, caste or community etc. would be corrupt practice.      The allegations  against respondent No. 3 were that he, his election  agent and  other per  on with  his consent had appealed to  the voters  of the  constituency in the name of religion, namely  Sikh religion  for voting in his favour or to refrain  from voting in favour of the appellant. In brief it is  alleged that  Hukamnamas, the nature, the content and the effect  of which  we will  examine  later,  were  issued urging the  voters to  vote for  respondent No. 3 and not to vote for  the appellant.  It was further alleged that in the meetings, inter  alia, at  ( 1) Muktsar, (2) Khokhar and (3) Harika Kalan  speeches  were  delivered  by  eminent  public persons appealing to the voters that as respondent No. 3 was the candidate  of the  Akal Takht  and  his  nomination  was supported by  the Hukamnama of Akal Takht, the people should vote for  him and not to vote for him would be a against the tenets of  the Sikh  religion and  would be  blasphemous act against the  Sikh religion  In publications like Akali Times the same  view was  propounded and  it  was  indicated  that lndira Congress  was always  against Sikh  people  and  Sikh religion and  as such  to vote  for Congress (1) would be to vote  against   Sikh  religion,  were  pointed  out  at  the meetings. It was emphasised before us that a Hukamnama for a Sikh is  of great  consequence and disobedience to Hukamnama entails great  misfortune.  It  is  necessary,  however,  to examine in  detail the actual evidence adduced in support of these allegations.  The learned  Judge of  the High Court of Punjab and  Haryana on  an analysis  of the  nature  of  the Hukamnama as  well as  examination of  the evidence  adduced before him  came to  the  conclusion  that  neither  was  it established that  respondent No.. 3 had appealed in the name of religion  in terms  of section 123 of the Act nor was the learned Judge convinced 167 about  the  veracity  or the  correctness  of  the  evidence adduced on  behalf of  the appellant  as to what happened in the three  meetings. A The learned Judge accordingly came to the conclusion  that the  appellant had  failed to prove the corrupt practice  alleged  against  respondent  No.  3.  The learned  Judge   emphasised  that   allegations  of  corrupt practices in  an election  petition are  in  the  nature  of quasi-criminal charges  and must be proved beyond reasonable doubt as such. The learned judge was of the opinion that the appellant had  not succeeded  in proving  The  said  charges beyond reasonable  doubt. He  accordingly dismissed the said election petition.      Being aggrieved  by the  said decision  and judgment of the learned  Judge, this  appeal has  been preferred  by the appellant  under section 116A of the said Act.      Before  we  examine  the  actual  contentions  and  the evidence,  it  may  be  appropriate  to  bear  in  mind  the principles enunciated  in two decisions of this Court on the principle underlying section 123(3) of the Act. D      Ambika Sharan  Singh v.  Mahant Mahadev  and  Giri  and others(l was  an appeal  against the order of the High Court

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of Patna  declaring the  appellant’s election  from  Barhara Assembly Constituency,  Bihar, void  under section 100(l) of the Act.  At the  time of  the general election in February, 1967, the appellant was the Minister of State in the Finance Department of  the State  of Bihar.  There were in all eight candidates contesting  from Barhara  Constituency. The  poll day was  15th February,  1967. Having  obtained 21,791 votes against 20,243  votes obtained  by  respondent  No.  1,  the appellant was declared elected. F      In the  election petition  filed by  respondent  No.  1 thereafter, he  made a  number  of  ALLEGATIONS  of  diverse corrupt practices  giving particulars  thereof in  more than ten schedules.  The appellant  denied all  these allegations and filed  a recriminatory petition under  section 97 of the Act. The  High Court  after examining  the evidence held the appellant guilty  of  three  corrupt  practices,  namely  of distributing money  to Harijan voters in various villages as bribery of  having canvassed  on their  basis of  his caste, namely, Rajput,  and of  having procured  the assistance  of four gazetted officers named      (1)11969] 3 S.C.C. 492. 168 therein. We  are concerned  with the second corrupt practice alleged   i.e. having  canvassed on  the basis of his caste. Before this  Court, the  question involved  was whether  the High Court  was correct  in holding  the appellant guilty of three corrupt  practices. The  High court  after considering the evidence  held inter  alia  that  there  was  sufficient evidence to show that the compaign on the basis of caste was carried  on  at  numerous  places  and  at  some  places  by appellant himself  and at  some  places  by  others  in  his presence and  at others  by several workers of the appellant including his  election agent.  The High Court felt that the conclusion was  inevitable that  all this  was done with the appellant’s consent,  direct or  implicit. This  Court  held that the  High Court  was right  in its  conclusion and  the appellant was  proved to  have  committed  corrupt  practice falling under  section 123(3)  of the  Act. Dealing with the allegations of  appeal in  the name  of religion, this Court observed at  page 497  of the  report in paragraph 12 and 13 thus:-      "Para 12-Indian leadership has condemned electoral      campaign on  the lines  of caste and community as being destructive of  the country’s integration and the concept of secular democracy which is the basis of our Constitution. lt is this condemnation which is reflected in Section 123(3) of the Act.  Inspite of  the repeated  condemnation, experience has shown  that where  there is  such a  constituency it has been unfortunately  too tempting  for a  candidate to resist appealing to sectional elements to cast their votes on caste basis. The  contention of  counsel, however,  was that there was on  the other  hand the danger of a frustrated candidate mustering a  number of his followers to testify falsely in a vague manner  that his  opponent had campaigned on the basis of his  caste or  community.  There  fore,  before  such  an allegation is  accepted, the  Court must be on guard against such a  possibility and  must demand adequate particulars. A witness deposing  to such an allegation must point out when, where and  to whom  such an  appeal  was  made.  That,  said counsel,  was   not  done  and  therefore  the  evidence  of witnesses however numerous should not have been accepted.           Para 13  But where  the allegation  is  that  such      canvas      sing was widespread and at several places it would be 169

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    impracticable to  call upon  the election petitioner to give the  names of  persons alleged  to have been approached with A such an appeal and the actual words spoken to each of them. If  such an appeal is made’ for instance, at a meeting it would  be difficult  for a  witness to name those to whom such an appeal is made, It is for this reason that courts in England have  made a  distinction between bribery  to voters and treating  them. In  the latter  class of cases, names of persons treated  by the  candidate have  not  been  demanded though the  election petitioner  would be ordered to specify the character  and extent of the alleged corruption. This is so even  though the  English Law of elections emphasises the individual  aspect  of  the  exercise  of  undue  influence, whereas what  is material under our law is the commission of an act  which constitutes  corrupt practice. (See Halsbury’s Laws of England, 3rd ed., Volume 14, p. 278). A command by a religious head  to his  followers that  it was their primary duty to  support a  particular candidate was held sufficient to vitiate the election and it was  not considered necessary to have  the names  of the  persons to  whom the command was addressed."      In  that  case  before  this  Court  there  were  other contentions  lmpeaching  the  evidence  and  indicating  the improbabilities of  the case  against  the  appellant.  This Court after elaborate discussion came to the conclusion that the allegation  of appealing  in the name of religion namely appealing on  the basis of caste was proved in the facts and circumstances of  that case.  It  was  argued  that  Barhara constituency was  a composite  constituency and therefore if the appellant and his agent were to campaign on caste basis, those belonging  to other  castes would be alienated against him and  as such  an appeal  instead of  advancing his cause would  prove  detrimental  to  it.  This  Court  found  this submission to be untenable because it is not impossible that the candidate  inclined to campaign on the caste basis would concentrate on  his votes  and at  the same  time leave  his party propaganda machine to campaign amongst the rest of the population. It  would not, therefore, be correct to say that such a  campaign would  be improbable and therefore evidence that  such   canvassing  was   conducted  should  have  been rejected.      In the instant case before us, similar contentions were urged namely  Muktsar was  a mixed constituency namely there were Hindu 170 votes  and   Sikh  votes,   according  to   one  calculation practically divided equally. It was submitted that appeal in the name  of Sikh  religion  by  the  appellant  in  such  a situation  was  unlikely.  As  mentioned  in  the  aforesaid decision of  this Court,  if there is conclusive evidence to that effect, then such a theory would not outweigh the facts proved. It  was then,  submitted that  Akali  Party  was  in alliance   with C.P.I.  (M) and  it was most improbable that when one  of the  allied parties  was a  Marxist Party,  the candidate of Akali Dal would appeal in the name of religion. This for  the  reasons  indicated  before  is  also  not  an acceptable view. These are only probabilities of a situation but if there is direct evidence of propaganda or campaign by candidate in  the election  in the  name  of  religion,  the probabilities of  such a  campaign not being made in view of other surrounding  circumstances, cannot outweigh the direct evidence if  the Court  is otherwise inclined to accept such direct evidence.      In Ziyauddin  Burhanuddin Bukhari  v. Brijmohan  Ramdas Mehra and  ors.,(l) the  appellant, a  candidate  of  Muslim

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League  defeated  respondent  No.  3,  Shauket  Chagla,  the Congress  candidate   in  the   Maharashtra  State  Assembly Election. Respondent  No.  1,  a  voter  filed  an  election petition,  inter  alia,  alleging  that  the  appellant  had appealed to the voters to refrain from voting for respondent No. 2  on the  ground of religion and that the appellant had promoted feelings  of enmity  or  hatred  between  different classes of citizens of India on ground of religion.      The various  appeals to  the voters  on the  ground  of religion made by the appellant had been set out in different sub-paragraphs It  is not necessary to set out in detail the actual allegations  made in that case as these were relevant for the purpose of that case only. It may however be pointed out that  it was  stated about Chagla that "at the moment we are in SUCH a war in which our opponent is such a person who is playing WITH our religious affairs, He considers us to be a community  whose  conscience  is  dead".  It  was  further alleged that  Chagla’s wife  Nalini was  a Hindu and his son Ashok Chagla used to attend the mosque as well as the temple and he  should be  excluded from  Muslim localities.  It was further alleged  that he was neither a good Hindu nor a true Muslim so neither God nor Bhagwan was pleased with him.      (1) 11975] SUPPI. S.C.R. 281. 171      It was  observed by  this Court  that our Constitution- makers intended to set up a Secular Democratic Republic. Our political A  history made it particularly necessary that the basis of  religion, race,  caste, community,  culture, creed and  language   which  could   generate  powerful   emotions depriving people  of their  powers of rational action should not  be  permitted  to  be  exploited  lest  the  imperative conditions for  preservation  of  democratic  freedoms  were disturbed. Section  123(2) and  (3) and  (3A) was enacted to eliminate  from  the  electoral  process  appeals  to  those divisive factors  which arouse  irrational passions that run counter to the basic tenets of our Constitution. Due respect for  the  religious  beliefs  and  practices,  race,  creed, culture and  language of  other citizens is one of the basic postulates of  our democratic  system. The  line has  to  be drawn by  the court  between what is permissible and what is prohibited  after   taking  into   account  the   facts  and circumstances of  each case  interpreted in  the context  in which the  statements or  acts complained of might have been made. The  court has to examine the effect of the statements made by  the candidate  upon the  minds and  feelings of the ordinary average voters of this country.      This Court  in that  decision reiterated at page 297 of the report as follows:-      "The Secular  State, rising  above all  differences  of      religion, attempts  to  secure  the  good  of  all  its      citizens irrespective  of their  religious beliefs  and      practices. It  is neutral or impartial in extending its      benefits to citizens of all castes and creeds. Maitland      had pointed  out that  such  a  state  has  to  ensure,      through its  laws, that  the existence or exercise of a      political or  civil right  or the  right or capacity to      occupy any  office or  position under  it or to perform      any public  duty connected with it does not depend upon      the profession  or practice of any particular religion.      Therefore, candidates  at an  election  to  legislature      which is  a part  of "the  State", cannot be allowed to      tell electors  that their  rivals are  unfit to  act as      their representatives  on grounds  of  their  religious      professions or  practices. To  permit  such  propaganda      would be  not merely  to  permit  undignified  personal

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    attacks on  candidates  concerned  but  also  to  allow      assaults on  what sustains  the basic  structure of our      Democratic State." H 172      Keeping in  background these  principles, it  would  be necessary to  refer to the allegations, the evidence and the conclusions of  the High  Court on  this point  in order  to decide this appeal. It was alleged that Hukamnama was issued by Shri  Akal Takbt  on its official letter-head bearing its religious symbol  and seal  on 1st March, 1980, according to which the  working Committee  of the Akali Dal was dissolved and a  7-member Ad-hoc  Committee was  appointed  under  the Chairmanship of  Sant  Harchand  Singh  Longowal  which  was conferred with the full powers of Akali Dal. Shri Akal Takht is situated  within the precincts of Harmandir Sahib (Golden Temple). Guru  Granth Sahib  installed in Harmandir Sahib is brought every day late in the evening to Shri Akal Takht for sukh Asan.  Another Hukamnama,  dated 6th  October, 1979 was issued. Said  Hukamnama which is Exh. P and appears at pages 17 and  18 of  Part II of the Paper Book stated that in view of the  resignations tendered  to the  Jathedar of  Sri Akal Takht, on  27th  September,  1979,  certain  decisions  were taken. It further stated in one of the items that in view of the coming  Parliamentary elections  and the  unity  of  the panth and  its high  priests, after scrutinising the list of the delegates,  they would  in their supervision conduct the election of  the President  of Shiromani  Akali Dal.  It was publicised to  the entire  Sikh R  community that  Shiromani Akali Dal  should be  considered as Supreme in the Panth. It further stated  that the  legislators elected  on the  Panth ticket were  being instructed  to run  the Punjab Government unitedly under the leadership of Sardar Parkash Singh Badal, the Chief  Minister and  maintain the prestige of the Panth. It was  further stated that all the members of the Shiromani Committee will have to work unitedly under the leadership of Jathedar  Gurcharan  Singh  Tohra,  for  the  betterment  of management of  gurdwaras and  to speed  up the preachings of Sikhism. The  said document  further  stated  that  a  seven member committee  was being  constituted for distribution of tickets and adjustments with other parties in the coming Lok Sabha elections. The names of seven members were given which included Sant Harchand Singh Ji Longowal, S. Jagdev Singh Ji Talwandi,  S.  Parkash  Singh  Ji  Badal  and  others.  Sant Harchand Singh  Ji Longowal was appointed as Chairman of the Committee. It  further stipulated  that the Sikh, who defied the propriety  of Akal  Takht and  offers ’Ardas’  would  be punished. He  should present  himself at  Sri Akal Takht and get himself  absolved and  further directed  that persons  - opposing the  above decision, made for maintaining the unity of the  Panth, would  be dealt  with severely. It is further alleged that on 173 16th November,  1979, Hukamnama  was issued by Akal Takht on its official  letter-head with   religious  symbol and  seal wherein punishment  was imphsed  by Akal  Tkht  on  Jathedar Jagdev Singh Talwandi and Jathedar Umra Nangal. These appear as Exh. P2 at pages 19 and 20 of Part I1 of the Paper Book.      On 29th  February, 1980,  a letter was written which is Exh. P-3  and appears  at page  21 of  Part II  of the Paper Book. This  letter contains  the proposal of some leaders of Akali Party  about the  formation  of  seven  Member  Ad-hoc Committee and  disbanding of  the Working  Committee of  the Akali Dal. On 1st March, 1980 Hukamnama which is Exh. P-4 at page 22  of Part  II of  the Paper  Book was alleged to have been issued  by  Akal  Takht  on  its  official  letter-head

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bearing its  religious symbol and seal. This Hukamnama gives approval to  the aforesaid  proposal and  made  an  official announcement that  the seven  Member Ad-hoc  Committee would from that  date take  upon all  the responsibilities  of the Shiromani; Akali Dal.      Respondent No.  3 states  in his  evidence- that he was not originally  a candidate of Akali Dal but his candidature was taken up at a subsequent stage and he was given a ticket by the  seven-member committee to contest the election. This is corroborated by Exh. P-29/A because 2nd May, 1980 was the last date  for submitting  nomination and  on 3rd May, 1980, respondent No. 3 was given ticket by the seven-Member Ad-hoc Committee for  Muktsar Constituency. See pages 90-92 of Part III of  the Paper  Book being  the statement of Dayal Singh. Shri Dayal  Singh gave  evidence on  behalf of the appellant and he  claims to be the Secretary of Akali Dal of which the President  was  Jagdev  Singh  Talwandi.  According  to  him Harchand Singh’s  name was  included in  the list  Exh. P.W. 29/A and not Exh. P-4/1      On 5th  May, 1980  the  last  date  for  withdrawal  of candidature expired. On 14th May, 1980, election meeting was addressed in  village Thandwala by S. Parkash Singh Badal, a member of the seven Member Ad-hoc Committee appointed by the Akal Takht  and by  respondent No. 3, the elected candidate. There were  articles in  Akali Times  by Surjit Singh, Chief Editor on  16th May, 1980. These articles were to the effect that it  was a  religious commitment  for every Sikh to cast his vote  for Akali Dal or to the candidate supporter by the Akali Dal. One of the statements in the article 174 was that  Indira Congress  was an anti-Sikh organisation. On 18th May,  1980, it  was further  stated in  the said  Akali Times that  a Sikh  cannot be supporter of that organisation and to  have commitment  with the Congress was a sin against Sikh Community’s interest.      In view  of the  nature of  the points  urged  in  this appeal, it would be appropriate to refer to some portions of the writings  in Akali Times which were alleged to have been highlighted at  several election  meetings by respondent No. 3. One of the articles is Annexure P-5 which appears at page 23 of  Part II  of the  Paper Book.  It is  headed  thus  "A Supporter of  Indira Congress  (1) cannot  be a Sikh". It is stated inter  alia: "It  becomes a  religious commitment for every Sikh to treat his vote a property of the Akali Dal and should stick  to it by all means. To be a Sikh, is to adhere to the  Guru. To follow the Sikhism is not a small thing, it is gift  bestowed by  the Almighty  Vaheguru. Those, who are admitted into  the Sikhfold, they protect this faith even at the cost  of their lives". "There are certain leaders in the Indira Congress,  who look Sikh by appearance. And they, for their selfish  and political  motives, claim  to  be  Sikhs. There is no dearth of such persons who declare themselves to be supporters  of Punjab  Panjabi language  and its culture, and  also   they  pretend  to  be  protectors  of  the  Sikh interests. Actually they are wolves in sheep’s clothing".      There were  several other articles to that effect which have all  been exhibited.  It is manifest that propaganda on religious lines  was carried  on. It is not necessary to set out in  detail all  the contents of the various articles. As an example  one article may be mentioned which was headed as "A Sikh  cannot be  a Supporter  of  Indira  Congress".  The article inter alia contained the following-      "According  to   the  press   reports,  the  police  is      harassing  Sant   Bhinderwala,  with   the  pretext  of      enquiry. This is being done because the Nirankaries are

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    pressing to harass the Sikh leaders. On the other hand,      the threatening  letters  received  in  the  office  of      Shiromani  Gurdwara  Prabandhak  Committee,  and  about      which all  the Indian Newspapers have published reports      and which is being condemned by all Sikhs, no leader of      the Indira  Congress has even spoken about that. On the      one hand  the highest agency of police, the C. B. I. is      conducting enquiry, about the murder of  Baba Gurbachan      Singh and if the Nirnkaries are not satis- 175      fied with that, then a special committee is instituted, but on A the other hand, the Governor of Punjab Mr. Hathi on the instance  of Central Govt. is not going to appeal in the High Court  against the  murders of  thirteen Sikhs. This is such a  political policy which means opposition of the sikhs and discrimination against the sikhism. I am told many times by my friends that the attitude of the former Prime Minister Mr. Morarji  Desai was  also anti-sikh. This is true and the Akali  Times   has  many  times  wrote  about  it.  But  the opposition of  Morarji Desai  confirms my  argument  because Morarji Desai  also belongs  to the  same congress  stock to which Indira  Gandhi belongs. In case of rule in India there can be  many differences  between Indira  Gandhi and Morarji Desai but  their anti-sikh  attitude is  common. Mr.  Indira Gandhi never  tried to prove that she has no enmity with the sikhs.      With these  state of  affairs,  the  sikhs,  living  in      Punjab and  out of  it, should  think it seriously that      their political  and religious  life can  then only  be      saved if  the akali  dal rules in Punjab. In the coming      elections, the  support of  Indira Congress by any sikh      will be a stab in the back of sikh interests".      lt is alleged that on 24th May, 1980, respondent No. 3, the  elected   candidate,  addressed  election  meetings  in villages Khokhar  and Harika.  Respondent No. 3 mentioned to the gathering that he was a candidate of Akal Takht. On 25th May, 1980,  it was further alleged that election meeting was held at  Muktsar. This  meeting was  admittedly addressed by Shri Parkash Singh Badal and respondent No. 3. There certain statements were made with which we shall deal later.      31st May,  1980 was the date of polling. The result was declared on  1st June,  1980. The petitioner/appellant filed the election  petition on  16th  July,  1980,  and  on  14th October, 1980 the petition was dismissed.      In support  of the  contentions in  this appeal, it was alleged by  counsel that the concept of secular democracy is the basis  of the  Indian Constitution.  The  paramount  and basic purpose  underlying section  123 (3) of the Act is the concept of secular democracy. Sec- 176 tion 123  (3) was  enacted  so  as  to  eliminate  from  the electoral  process  appeals  to  divisive  factors  such  as religion,  caste,   etc.  which   give  vent  to  irrational passions. It  is essential  that powerful emotions generated by religion  should not  be permitted to be exhibited during election and  that decision and choice of the people are not coloured in  any way. Condemnation of electoral campaigns on lines of  religion, caste,  etc. is  necessarily implicit in the language  of section  123 (3)  of the Act. Consequently, the section must be so construed as to suppress the mischief and advance  the remedy. Legislative history of this section is important  from this  point of  view.  The  statement  of objects and  Reasons  of  the  Amending  Act,  1961  clearly mentions the  object of the amendment . It was ’ for curbing communal and  separatist tendencies  in the  country. It  is

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proposed to  widen the  scope  of  the  corrupt  practice  e mentioned in  clause (3)  of section  123 of 1951 Act and to provide for  a new  corrupt practice". In order to determine whether certain  activities  come  within  the  mischief  of section 123  (3), regard must be had to the substance of the matter rather  than to  the mere  form or  phraseology.  The inhibition of  section 123 (3) should not be permitted to be circumvented indirectly  or by circuitous or subtle devices. The court  should attach importance to the effect and impact of the  acts complained  of and  always  keep  in  mind  the paramount purpose  of section  123  (3)  namely  to  prevent religious influence  from entering  the electoral field. The nature and  consequence of an act may not appear on its very face but  the same  can be  implied  having  regard  to  the language, the context, the status and position of the person issuing the  statement, the  appearance and know religion of the candidate, the class of persons to whom the statement or act is directed, etc.      We have  to examine  the facts  of this  case  in.  the background of  these principles.  It was contended on behalf of the  appellant that  section 123  (3) of the Act had been violated for three different reasons:      (a)  Sponsorship   of  the   respondent   No.   3   and distribution of  election ticket  to him  for  the  Assembly elections by the Akal Takht, which is "the supreme religious authority of the Sikhs".      (See in  this connection  statement of  P. W.  25-Giani Pratap Singh at page 69 of Part III of the Paper Book! 177      Appeal to  religion, says counsel for the appellant, is implicit in  the very  act of sponsoring of respondent No. 3 as a  candidate at t he election by Akal Takht on account of the unique religious position it occupies and the tremendous religious authority  and influence  it  wields  amongst  the sikhs.      b) Issue of Hukamnama (exhibit P. 4) by the Jathedar of the Akal  Takht in  the matter  of Assembly elections having regard  to   the  circumstances  in  which  it  was  issued, indicates that  the approval  of the Akal Takht was obtained in order  to  give  this  decision  a  colour  of  religious authority.      (See in  this connection  the evidence  of Giani Pratap Singh, P. W. 25 at page 70 of Part III of the Paper Book).      (c) It is further urged that appealing to the voters at election meetings  held in Muktsar, Khokhar and Harika Kalan by referring  to the Hukamnama, to the writings in the Akali Times and  exhorting them  to vote  for respondent  No. 3 by applying to the religious sentiments and warning them of the consequences of not doing so constitute appeal to religion.      As these  contention were  not accepted  by the learned Trial Judge,  it would  be necessary to analyse the evidence and the reasons of the learned Trial Judge for not accepting these in  order to deter- mine the contentions urged in this appeal.      Whether it  was a  Hukamnama or not and whether in this case Hukamnama  in the  proper sense was issued by Shri Akal Takht directing casting of the votes in favour of respondent No. 3  and  if  so,  what  were  the  consequences  of  such Hukamnama, are questions that have been canvassed before us. Sub-section (3)  of  section  123  prohibits  "appeal  by  a candidate or  his agent  or by  any other  person  with  the consent of  a candidate  or his  election agent  to vote  or refrain from  voting for  any person  on the  ground of  his religion, race,  caste, community  or language".  The  other part of sub-section (3) of section 123 which defines corrupt

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practices is not relevant for the present purpose.      It will  be necessary in this case to examine in detail the concept  of Shri  Akal Takht  amongst the Sikhs. In this case we  have the  evidence of  the learned  professors  and certain well-known text-books dealing with this question. H 178      A on  behalf of  respondent No. 3, it was urged that in order to  constitute a  Hukamnama proper, there were certain conditions precedent  which were  required to  be  fulfilled namely there  should be  a meeting  of Sarbat  Khalsa i.e. a meeting of  all the  Sikhs and secondly a unanimous decision must be  arrived at  and than  it should  be followed by the approval of  Shiromani Gurdwara Prabandhak Committee and the decision should  be announced  from Shri Akal Takht. If only these  conditions   were  fulfilled,   submits  counsel  for respondent No.  3 then  a  Hukamnama  proper  with  all  the consequences of  disobedience of  Hukamnama by a Sikh can be said to follow.      lt was  urged on behalf of the respondent No. 3 that it was not  open to  the appellant  to  raise  this  contention because  in  the  election  petition,  it  was  stated  that Hukamnama was issued. Respondent No. 3 had not stated in his written statement  that these conditions were required to be fulfilled before  a proper Hukamnama could be issued. It was urged that  respondent No.  3 was  himself a  Sikh and was a member  of   the  Akali   Dal  and   must  have   known  the prerequisites, yet he did not raise these conditions. On the other hand  on  behalf  of  the  respondent  No.  3  it  was submitted that in paragraph 9 of the written statement filed by respondent  No. 3,  this point has been raised and it was said  that  no  Hukamnama  has  been  issued  in  favour  of respondent No. 3.      The author,  Harjinder Singh Dilgeer in his book "Glory of the Akal Takht" quotes at page 97 historian C. H. Loehlin in his book "The Sikh and their Scriptures" at p. 1 thus:-      "The Akal  Takht is  ’a preaching  centre’ and also the      seat of  political and  religious conferences.. In fact      today  the  Akal  Takht  is  the  symbol  of  political      activity of  the Sikhs.  All great  Sikh movements have      been led from the seat of the Sikhs". .      At  page  99  in  Appendix  lI,  the  author  described "Sarbat" as  meaning whole. Sarbat Khalsa means collectivity of the  Sikh people.  It is  a theo-political  doctrine,  by means of which the Sikhs assume the powers and the status of the centralised  conscience and  will of  the people. Sarbat Khalsa was  first used for the gathering of all Sikhs on the days of  Diwali and  Baisakhi at  Shri Akal Takht, Amritsar. After 1721, the Sarbat Khalsa gathered twice in a year 179 before Shri  Akal Takht.  Sarbat Khalsa  used to discuss the questions  of  Panthic  interest  at  such  gatherings  and, gurmatas out  of the consensus of such meetings were passed. The author  of that book records that Sarbat Khalsa has made many important  decisions which  have changed the history of the Punjab.  These include  acceptance of  jagir (1733),  to build a fort at Amritsar (1747),to from Dal Khalsa (1748) to attack Lahore  (1760) etc.  The usage  of  the  term  Sarbat Khalsa began  in  the  middle  of  the  eighteenth  century. Previously, according  to the author, every individual could participate in  the meetings  of Sarbat Khalsa. Later on the right got  vested in  the leaders of the Misls. According to the author,  the last  meeting of the Sarbat Khalsa was held in 1805.  It discussed  the dispute of Lord Lake and Holkar. After this  Maharaja Ranjit Singh, according to this author, stopped political  meetings and  started taking decisions on

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the advice  of his  ministers only.  The author  states that even in  the twentieth century, the major Sikh organisations (the Akali Dal and the S. G. P. C.) have opted not to revive this institution and they decide major Sikh questions in the All Sikh Parties’ meetings. D      Hukamnama according  to the  same author in Appendix IV at page  1022 is a word used for the Royal letters issued by the Mughal  emperors, but  it has  a wider  meaning for  the Sikhs. Whereas  the Mughal  orders were  carried  out  under compulsion, the  Sikh   Hukamnama was acted upon as a matter of pride.  Not only  the performance of the Guru’s order but even the  darshan (a  look at  of the  Guru’s Hukamnama  was considered as  an honour.  In that  Appendix IV  of the said book the author gives several instances of Hukamnamas used.      According to  the author,  historians believe  that the step of constructing the Akal Takht near Hari Mandir was due to Guru’s  idea of  keeping temporal  and spiritual  centres near each  other so  that both  should influence each other. The author  also refers  that after the construction of Akal Takht, Guru  Hargobind issued  Hukamnama (see  also in  this connection.  The   Sikh  Religion   Vol.  IV,  p.3  by  M.A. Macauliffe).      Kushwant Singh  in his  book "A  History of  The  Sikhs Volume I:  1469-1839 at  page 63 discussed the Akal Takht of Hargobind as follows: 180        " Across the Harimandir, he built the Akal Takht (the throne of  the Timeless  God), where,  instead  of  chanting hymns of  peace, the  congregation heard  ballads  extolling feats of  heroism, and,  instead of  listening to  religious discourses. discussed plans of military conquests."      He further  mentions that  Guru’s abode  in fact became like that  of an Emperor. He sat on a throne and held court. He went  out with  a royal  umbrella over  his head  and was always accompanied by armed retainers. It has been described that by  this time,  the Akal  Takht had  become a spiritual place, a  military centre  a political  office, a  court,  a place  for   gatherings,  a  durbar  and  a  throne  issuing Hukumnamas (the royal letters).      It has  been stated  in the  said book  at page 32 that Sikhs used to assemble before the Takht twice a year and the congregation was called the Sarbat khalsa (the whole khalsa) and the decisions of the Sarbat khalsa were called Gurmatas.      It was  contended before the learned judge on behalf of the appellant that the documents Exh. P-1, Exh. P-2 and Exh. P-4 were issued by Akal Takht and were therefore Hukamnamas. It was  contended  that  these  documents  showed  that  the candidates were  to be nominated by the seven members of the Committee  appointed   by  Akal  Takht  and  they  were  the candidates of  Akal Takht.  It was urged that Akal Takht was the highest  religious authority  and it was bounded duty of all Sikhs  to vote  for the  candidates  nominated  by  Akal Takht. According  to him  Sikh voters  could  not  deny  the dictate of Akal Takht. On the other hand learned counsel for respondent No. 3 urged that such Hukamnama was not Hukamnama of Akal  Takht but  the letters  written by  the Jathedar of Akal Takht.      The learned  Judge came  to the  conclusion that it was not necessary to go into the question as to whether Exhibits P-l and P-2 were Hukamnamas or not as these were issued long before the  Assembly  elections  and  the  portions  of  the petition relating  to these  were  ordered  to  be  deleted. Whether Exhibit  P-4 was  a Hukamnama or not, there was some dispute and  the learned Judge referred to the oral evidence of  Dr.   Fauja  Singh,   Professor  of   History,   Punjabi

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University, Patiala,  who was  examined  i  n  the  Election Petition No. 32 of 1980 (S. Satnam Singh Bajwa v. Sujagar 181 Singh Sakhwan  and another  decided on 24th March, 1981). He had deposed  that Akal  Takht was  founded by Guru Hargobind Sahib, the  Sixth Guru  in 1606 A.D. On that occasion he put two swords  one called  the sword  of ’Miri’  and the  other called the  sword of  ’Piri’. ’Miri’  and ’Piri  are Persian words and  connote  the  temporal  authority  and  spiritual authority respectively.  The significance  of putting  these two swords  was to  indicate the  close relationship between religion and  its practice.  Since Guru Arjan Dev, the Fifth Guru,  was  subjected  to  torture  by  the  Mughal  Emperor Jahangir a  strong reaction  against that act of tyranny was witnessed amongst  the Sikhs.  It was  with that  background that the  Sixth Guru  decided to  militarize  the  community along side of continuing to impart religious teachings. Ever since the foundation of Shri Akal Takht it has held a unique position in  Sikh religion  and  Sikh  history.  During  the eighteenth  century,   meetings  of   ’Sarbat  khalsa’  were invariably held  at Shri Akal Takht twice a year-on Baisakhi and Diwali  days. At these gatherings, unanimous resolutions used to  be passed  which were known as ’Gurmatas’. All this has been  set out  here in before and it is not necessary to examine in  any further  details. It is undisputed that Shri Akal Takht enjoys a unique position amongst the Sikhs. There is, however,  difference of  opinion between Dr. Fauja Singh and Giani  Partap singh regarding its powers as noted by the learned Trial  Judge. Dr. Fauja Singh had stated that it was a symbol  of both  political and  religious  powers  whereas Giani Partap  Singh had stated that it was supreme religious authority. Dr.  Fauja Singh  had been  the Professor and the Head of  the Department  of  Sikh  History  in  the  Punjabi University from  1967-78 and  since 1978 he is the Director, Punjab Historical  studies. He  is a scholar of great repute and well  versed in  Sikh history.  He has been teaching the subject  since   long.  The  learned  Judge  felt  that  his statement should  be preferred  and came  to the  conclusion that Akal  Takht was  a symbol  of political  and  religious powers. It  was found, according to the learned Judge on the evidence, that  Exhibit P-4  was not  taken in  the form  of ’Gurumata.’ on  the other hand, it was decision taken by the leaders  of  Akali  Party  at  Fatehgarh  Sahib  written  by Jathedar Sadhu  Singh on  the letter-head of Shri Akal Takht who announced it.      The learned judge came to the conclusion that there was no decision  regarding  the  selection  of  candidates.  The learned judge  was of  the view that if the statement of Dr. Fauja Singh  was read, it cannot be held that the same was a Hukamnama of Shri Akal H 182 Takht. The  learned Judge referred to the view taken by P.C. Jain, J. in election Petition No. 32 of 1980).      In our  opinion it  is not a technical question whether exhibit P-4  was a Hukamnama or not. It is a question in the present controversy  which has  to be  judged from a broader perspective. As  noted before in these matters the Court has to  examine  the  effect  of  the  statements  made  by  the candidate on  his behalf  upon the minds and the feelings of the ordinary  average voters  of this country.-See Ziyauddin Burhanuddin  Bukhari   v.  Brijmohan  Ramdas  Mehra  &  Ors. (supra). It  is undisputed  that Shri  Akal Takht  enjoys  a unique position  amongst the  Sikhs. it  is indubitable that any communication  from Shri Akal Takht which is represented by eminent  members of the Sikh community as Hukamnama would

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have great  religious persuasive  value even though strictly speaking it  might or  might not  be a  Hukamnama.  For  the purpose of this appeal, it is not necessary for us to decide whether in strict textual sense and strict rules of the Sikh community P-4  was a  Hukamnama or  not. It was alleged that Sardar Parkash  Singh Badal  represented it  to be so and it was so  represented by  the  candidate  himself  and  having regard to  the background, it cannot be said that it did not have the  effect of a Hukamnama on the community at large of inducing them  to believe  that ignoring  the claim  of  the candidate nominated  by Shri Akal That and represented to be supported by  Hukamnama would  be an act of sacrilege on the part of a good Sikh.      These questions  should be  very  broadly  decided.  It would not  be an appeal to religion if a candidate is put up by saying’vote for him’ because he is a good Sikh or he is a good Christian  or he  P is  a good  Muslim, but it would an appeal to  religion if it is publicised that not to vote for him would  be against  Sikh religion  or  against  Christian religion or  against Hindu religion or to vote for the other candidate would  be an act against a particular religion. It is the  total effect  of such an appeal that has to be borne in mind  in deciding whether there was an appeal to religion as such  or not.  In each  case, therefore, the substance of the matter has to be judged.      In the  case of  Shubnath Deogram v. Rant Narain Prasad and others,(l)  this Court  reiterated that  in substance it would be  an appeal  on the ground of religion if the act in question has the [1960] I S.C.R. p. 953. 183 effect of giving the impression that it would be irreligious not to  A vote for a particular party or person. Mr. Justice Subba Rao,  however, dissented  from  majority  view  on  an examination of the facts of that case.      This question,  however, has  to be kept in view within proper limits  and religious  leaders have  right freely  to express their  opinion on  the  comparative  merits  of  the contesting candidates  and to canvass for such of them as he considered worthy of the confidence of the electorates. (See in this  connection the  observations of  this Court  in the case of  Ram Dial v. Sant Lal and others.(l) In Kultar Singh v.  Mukhtiar   Singh,(2)  this   Court  observed   that   in considering as  to whether  a particular  appeal made  by  a candidate falls  within the  mischief of  section 123 (3) of the Act,  the courts  should not be astute to read the words used in the appeal anything more than what can be attributed to them on its fair and reasonable construction.      In the  light of  these discussions  for the purpose of this appeal,  it is  not necessary to accept the submissions on behalf  of the  appellant that  mere sponsorship  of  the respondent No.  3 and distribution of election ticket to him for the  Assembly election in the manner proved would amount to an  appeal to  religion as  such without  considering the other facts  and circumstances  and how  it was  put to  the people or  to the  electorate. For  this purpose it would be necessary to  refer to  the evidence  of meetings  at  three places.      Regarding the  meeting at  Thandawal, counsel  for  the appellant did  not press  it before  us. The  first  meeting which we  have to  consider is  the meeting at Muktsar. P.W. 12, Hardam  Singh gave  evidence about  Muktsar. His village falls in Muktsar constituency and he stated that S or 6 days before the  date of the poll, a meeting was organised by the supporters of respondent No. 3 at Muktsar at about S P.M. He

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attended the  meeting. According  to him  this  meeting  was addressed by  Shri Parkash  Singh Badal,  ex-Chief Minister, Punjab, Sant  Harchand Singh  Longowal and  respondent No. 3 himself. It  was stated  that Shri  Badal made  a speech  at about 6.30  P.M.  He  exhorted  the  audience  to  vote  for respondent No.  3 because he was a Gur Sikh. He said that he had been put (1) [1959] Supp. 2 S.C.R. p. 748. (2) [1964] 7 S.C.R. p, 790. 184 up as  a candidate under the orders of the Akal Takht and it was the religious duty of the Sikhs to vote for him. He also showed one  paper to the audience which according to him was a Hukamnama issued by the Akal Takht. He further stated that there was  good work  done by  respondent No.3  and he would continue to  do so  if he was elected. It is deposed by P.W. 12 that  Sant Harchand  Singh Longowal  also made  a similar speech. Thereafter,  respondent No. 3 spoke and said that he was a  candidate of  Akal Takht  and it  was the duty of the Sikhs to  vote for  him. He  was cross-examined  but nothing very substantial came out of it. He reiterated in his cross- examination that  Shri Badal  told the  audience  that  they should vote  for respondent No. 3 because he had been set up a candidate  of Akal Takht. Shri Longowal and respondent No. 3 also  spoke. He  denied the  suggestion that  he  was  not present at that meeting.      P.W.  13  also  gave  evidence  about  the  meeting  at Muktsar. Me  corroborated that  Shri  Parkash  Singh  Badal, Harchand Singh  Longowal and  respondent No. 3 addressed the meeting. His  evidence was  more in  corroboration with what has been  stated. He  however did not hear the speech of the respondent No.  3 as he had left the meeting before that. He stated in  his cross-examination  that four  or five persons belonging to his village had accompanied him to the meeting. There was  however nothing in substance with . what has been stated.      As against  this on  behalf  of  the  appellant,  three persons gave  evidence namely R.W. 1, R.W. 2 and R.W. 8 R.W. 1 stated  that there  was a  meeting in Muktsar about a week before the polling at about 8.00 P.M. which lasted upto 1.00 P.M. Meeting,  according  to  him,  was  addressed  by  Shri Prakash Singh  Badal and  Shri Harcharan  Singh  Fatanwalia. According to  this witness whose name was Kashmiri Lal, Sant Longowal was  neither present  nor  addressed  the  meeting. According to  him, Shri  Parkash Singh Badal only dwelt upon the achievements  of his  government and  the fact  that  no Inspector was  allowed to harass the voters particularly the city  voters.  Other  speakers  who  addressed  the  meeting represented Janta Party, Communist Party and Bhartiya Janata Party. According  to him,  in the  meeting majority  of  the audience were  Hindus, as  Muktsar town  comprised of almost 70% of Hindu population. In cross-examination he stated that he was  a member of Muktsar Municipal committee and he was a member of the C.P.I. and C.P.I. 185 had entered  into alliance with Akali Party. The other facts stated by him are not relevant on this point. A      Krishan Kumar  son of  Shri Jagan  Nath who  was also a Municipal Commissioner,  Muktsar was  R.W. 2 and he spoke in favour  of   respondent  No.   3.  According  to  him,  Shri Fatanwalia and  Shri Badal  spoke but  they spoke  about the achievements of  their party  and no  appeal was made in the name of  Akal Takht or in the name of religion. According to him, Hindus  outnumbered  Sikhs  by  three  times.  He  also admitted that  he was  a member  of the  Communist Party  of

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India (Marxist).      R.W. 8,  the respondent  No. 3  himself  was  the  next person C  who gave  evidence in  support of himself. He said that Shri  Parkash Singh  Badal visited  Muktsar on  25th of May, 1980  and addressed a public meeting there. That public meeting  was  addressed  by  Chaman  Lal  Joghi,  Raj  Kumar Girdhar, Roshan  Lal Joshi,  Paras Ram  Bagga, Jagroop Singh and by  him. The  above said Hindu gentlemen belonged to the Janata Party whereas Jagroop Singh belonged to the Communist Party. The  audience, according  to him, consisted of 75 per cent of  the Hindus and 25 per cent of the Sikhs. Shri Badal had merely  said that  he had been the Chief Minister of the State for  a long time and if he was elected, he would serve the people well. He admitted that he himself was relative of Shri Parkash  Singh Badal-his  daughter was  married to  the younger  brother of Shri Badal.      The learned  Judge has  rejected the evidence on ground of improbability and on the ground that the evidence was not satisfactory because  the  witnesses  had  not  stated  that version  to   the  appellant   nor  were  these  allegations mentioned in  the petition. The learned judge was further of the opinion  that in  a constituency  or place  where  Hindu population outnumbered  the Sikh population, it was unlikely that appeal  in the  name of Sikh religion would be made. As against this,  the following  facts will have to be borne in mind:      Shri Prakash  Singh Badal  had not  chosen to  come and deny the  allegations. Indisputably  he was  present at  the meeting. He  would have  been the  best person  to deny  the allegations made about that meeting. It is not a question of merely proving  a fact by adverse presumption. In case where there is positive evidence to 186 prove a  fact and  there is  no denial  by the person who is most competent to deny that fact and no reason was given for his not  giving evidence especially in the background of his eminence and  his position, his relationship with respondent No. 3  and especially in view of the respondent No. 3 had in fact been  nominated by the same group on behalf of the Sikh community  with  which  Shri  Prakash  Singh  Badal  was  so intimately connected  would lead  to the conclusion that the evidence advance(l  on  behalf  of  the  appellant  must  be accepted. If  that is  accepted  then  the  following  facts emerge:         (1)  it  was  represented  to  the  electorate  that respondent No.  3 was  a nominee  of Akal Takht by no less a person than  the former  Chief Minister  of the State in the presence of the candidate himself:      (2) the candidate himself made the said statement.      It  follows  therefore  that  an  appeal  to  vote  for respondent No.  3 in  the name  of Akal  Takht with  all the consequences of  Hukamnama of  Akal  Takht  was  highlighted before the electorate.      The next  meeting which  is material  is the meeting at Khokhar. Here  also P. W. 17 Makhan Singh gave evidence. His village falls  in Muktsar  constituency. He  said  that  the supporters of  respondent No.  3 had  convened a  meeting at Khokhar at about 12 noon about 6 or 7 days prior to the date of poll.  The meeting  was held  in  the  village  Gurdwara. Respondent No.  3 accompanied by Shri Baldev Singh Sibia and 4/5 other persons had come to attend the meeting. Respondent No. 3 addressed the meeting first. At the outset he tendered an apology  to the audience and said that he had promised to bring Shri  Prakash Singh  Badal to address this meeting but he could  not come  as he was busy with the election work in

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other constituencies.  Respondent No.  3 showed  a paper and described it  as a  Hukamnama issued  by the  Akal Takht. He stated that  he had been given a ticket because he was a Gur Sikh and it was the "religious duty of the Sikhs to vote for him", and he also showed some back issues of Akali Times and said that  most of  the things  were written in these papers but he wanted to give a gist of the same. He stated that any Sikh who  cast his vote in favour of Indira Congress did not deserve to be called a Sikh. He also said that right to vote was a  sacred trust  in favour  of  the  panth  and  whoever exercised this  right against the order issued by the Panth, would he  regarded as  a traitor  to the panth. He mentioned the Gurus.  In cross-examination  he stated  that  he  owned thirty acres of land and his village 187 was at  a  distance  of  two  miles  from  village  Khokhar. According to  him 10  or 12  Hindus were also present in the meeting. He said that A he did not know if it was an offense to ask people to vote on the ground of religion.      The next  witness was  P. W.  18,  Malkiat  Singh.  His village also  fell in Muktsar constituency and he spoke that in the  Gurdwara of  village Khokhar,  meeting was  held  at about 12  noon. He  also corroborated  that respondent No. 3 and Shri  Baldev Singh  Sibia addressed  this meeting. There was corroboration of the evidence of this witness. In cross- examination there was not much damage done to his testimony.      The next  witness was  P. W.  19, Guranditta  Singh. He spoke of  a meeting about 5/6 days prior to the date of poll and the  meeting was  held at about noon time in the village Gurdwara n village Khokhar. Respondent No. 3 and Shri Baldev Singh  Sibia   addressed  the   meeting.  He  more  or  less reiterated what was stated by the other witnesses. In cross- examination he  stated that  about  10  to  15  Hindus  were present. He  further stated  that 2  or  3  days  after  the meeting, the appellant had visited his village and solicited his vote  but he  had replied that he had made a tour of 2/3 villages along with panthak candidate and for that reason he was not in a position to promise to cast his vote for him.      The witness  for respondent  No. 3 was one R. W. 6. She was Smt.  Gurmit Kaur wife of Malkiat Singh. She denied that any meeting  was held  in their  village and  that  she  was always in the village throughout the election.      Learned  Judge  found  it  difficult  to  rely  on  his evidence. We  do not  see  any  intrinsic  improbability  in accepting his  testimony especially  in the  absence of good rebuttal evidence.      The next village is village Harika Kalan about which P. W. 19  Guranditta Singh  gave evidence.  To prove meeting at Harika Kalan  statement of three witnesses Guranditta Singh, P. W.  19, Sant  Singh s/o  Arjan Singh, P. W. 20 and Gurdev Singh s/o Bhajan SIngh, P. W. 21 were relied. The latter two witnesses belonged  to village  Harika Kalan.  The first one making the  statement regarding  the meeting at Harika Kalan as well as meeting at village Khokhar. P. W. 20 deposed that an election meeting was held by the supporters of res 188 -pondent No. 3 in village Harika Kalan about 5/6 days before the date of polls at village Gurdwara. Similar statement was made by  Makhan Singh,  P. W.  17 regarding  the meeting  at Khokhar. In  cross-examination, he  admitted that he did not meet the petitioner till the date of his evidence and no one approached him  to find  out as  to whether  he attended the meeting or  not. The respondent No.3 called one Balla Singh, Sarpanch resident  of Harika  Kalan, P. W. S and Smt. Gurmit Kaur resident  of Khokhar  P. W.  6. Both  the witness  were

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interested in him.      Learned Judge  did not find it possible to accept their testimony.      In a  matter of  this nature, the evidence naturally is mostly oral. Therefore specially where the charge is a grave one;  namely   corrupt  practice   which  if   proved  would disentitle the  candidate to  contest the  election for some time to  come, the  Courts must  proceed  with  caution.  An election once  held ought  not to  be treated  in  a  light- hearted manner  and defeated  candidate should  not get away with it  by filing election petition. See in this connection the observations  of Krishan  Iyer,  J.  in  Rahim  Khan  v. Khurshid ,Ahmed & Ors.( See also the decision in the case of Ch. Razik Ram v. Ch. J. S. Chauhan & ors.(2)      Reference was also made to the opinion of this Court in Kanhaiyalal v.  Mannalal & Ors(3). and M. Narayana Rao v. G. Venkata Reddy & ors(4).      Taking into account the totality of the evidence in the back ground  of the  fact that some communications from Akal Takht call  it Hukamnama  or any  other name were issued and the  issues   of  editorials  of  Akali  Times,  which  were mentioned by  Shri Parkash  Singh Badal  as  stated  by  the witness on  behalf of  the appellant and which is not denied by Shri  Parkash Singh  Badal, we are of the opinion that in this case  appeal in the name of religion was made on behalf of respondent  No. 3.  Though some  facts stated in the oral evidence about  the meetings  had not  been  stated  in  the petition but when evidence were tendered and were not shaken in cross-examination  and the  versions have a ring of truth in the back (1) [1975] I S C.R. 643. (2) A. I R.1975 S.C. 567. (3) 11976] 3 S. C. R. 808. (4) I.S.C.R. 490. 189 ground of  other facts,  we are of the opinion that the case of appeal  to religion  by the  respondent No.  3  has  been proved in  this case. A This conclusion becomes irresistible in view  of absence  of any  express denial  by Shri Parkash Singh Badal  and in  the absence  of any explanation for not calling him  as a witness on this point. Several decision of this Court  have laid  down various  tests to  determine the standard of  proof required  to establish  corrupt practice. While insisting  on standard  of  strict  proof,  the  Court should not  extend or  stretch  this  doctrine  to  such  an extreme extent  as to make it well. nigh impossible to prove an allegation  of corrupt  practice. Such  an approach would defeat and frustrate the very laudable and sacrosanct object of the  Act in  maintaining purity  of the electoral process (See the  observations in  the case  of Ram  Sharan Yadav v. Thakur Muneshwar  Nath Singh  and ors. (Civil Appeal No. 892 (NCE) of 1980).        In  the premises  the respondent  No. 3 was guilty of corrupt practice  as mentioned in sub-section (3) of section 123 of  the Act. In the result his election is set aside and the seat  is declared  vacant. The  findings of  this  Court about the corrupt practice of respondents No. 3 be forwarded to the  President of  India  for  appropriate  action  under section 8A of the Act.       A point was made about the petition being not properly verified inasmuch  as the source of information had not been mentioned. On  behalf of  the appellant,  counsel  drew  our attention to  section 83 of the Representation of the People Act, 1951.  This point  was examined  by a Division Bench of the Calcutta  High Court  in the  case of  Padmabati Dasi v.

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Rasik Lal Dhar.(1) I am of the opinion that a proper reading of  that   decision  would   indicate  that   for  a  proper verification of  an affidavit or a petition based on certain information, the  source should  be indicated  but I  do not wish  to  examine  this  question  any  further  because  no objection at  the initial  stage was  taken and specially in view of  this  Court’s  decision  in  Ziyauddin  Burhanuddin Bukhari v.  Brijmohan Ramdas  Mehra and  ors. (supra) and in Hardwari Lal v. Kanwal Singh (2) on an appropriate occasion, this question may require a fuller consideration.        The  decision of the learned Trial Judge is set aside and the  appeal is   allowed.  Respondent No. 3 will pay the costs of this appeal. A.P.J.                                       Appeal allowed.      (1) I.L.R. XXXVII Calcutta, 259 at 260.      (2) [1972] 2 S.C.R. 742 190