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PETITIONER: ABDUL HUSSAIN MIR

       Vs.

RESPONDENT: SHAMSUL HUDA & ANR.

DATE OF JUDGMENT20/12/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR 1612            1975 SCR  (3) 106  1975 SCC  (4) 533  CITATOR INFO :  D          1975 SC1634  (4,9)  RF         1976 SC1599  (6)  RF         1978 SC1162  (5)  R          1985 SC  89  (19)

ACT: Representation of the People Act (43 of 1951) Ss. 83, 123(1) (2) and (3)-Scope of.

HEADNOTE: The  appellant is a Muslim, whose mother was a tribal  Hindu who  was converted to Islam on the eve of her marriage to  a Muslim.   In the election to the Assam Legislative  Assembly from  a constituency which is a tribal area of Assam with  a heterogeneous  composition  of tribesmen  vaguely  Hindu  by persuasion,  plainsmen  Hindus and nearly 80%  Muslims,  the appellant  was  declared elected.  The respondent  filed  an election  petition  challenging the election inter  alia  on three grounds : (1) that the appellant offered Rs.  2,000/to P.W. 12 a Mulla to collect votes for him, and though P.W. 12 refused  the offer the appellant was guilty of  the  corrupt practice under s. 123(1) of the Representation of the People Act,  1951;  (2) that the appellant was  guilty  of  corrupt practice  under s. 123(3) because he canvassed for votes  on the basis of his religion by asking for votes on the  ground of  his being the son of a tribal Hindu woman; and (3)  that the appellant exercised undue influence by threatening  that the  persons  who might note for the  respondent,  could  be identified  and would be subjected to the same treatment  as people of Bangladesh were by the Pakistanis. thus  violating s. 123(2).  The High Court allowed the petition. Allowing the appeal to this Court, (Per, Alagiriswami, J.) (1)  Regarding  the  first charge, P.W. 12 stated  that  the appellant offered him money if he would work for him in  the election in the two villages in which he happened to be  the Mulla.   Another witness stated that the appellant told  him that he had offered money to P.W. 12 for helping him in  the election  campaign but that P.W. 12 rejected the offer  and, requested that witness to make over the money to P.W. 12 and prevail upon him to work for the appellant.  These facts do

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not  fall under s. 123(1).  Therefore. it is unnecessary  to discuss   whether,   if  money  is  paid   or   offered   as consideration  for votes promised to be secured by a  person using  his  influence  it is bribery or  not.  because,  the question  does  not  arise out of the facts  of  this  case. [108G109A] (Per Krishna Iyer and Sarkaria, JJ.) (1)(a)  An appraisal of the evidence and an overall view  of it makes it doubtful whether the appellant it even met  P.W. 12  and  therefore,  the offer of the  bribe  had  not  been established. [123B; 126E-F] (b)  Section 123(1) requires (i) an offer or promise by  the candidate etc., of gratification to any person, and (ii) the object  must be directly or indirectly to induce an  elector to  vote or not to vote at an election.  The purpose of  the provision  is  to ensure poll purity and  the  exclusion  of pollution  by money power.  If the payment is to  induce  an elector to vote, be it direct or vicariously, it is corrupt. If the money is paid as consideration for votes Promised  to be secured by an important person of the locality using  his sway  it is bribery even though indirectly exercised.   But, if  the  candidate pays money to use his  good  offices  and canvass  votes for him it would be a border line  case.   In the  present  case,  if  P.W. 12 had  been  paid  the  money striking  a  bargain for getting the votes in his  ambit  of influence it is electoral corruption.  On the other hand, if it   is  money  received  for  the  purpose  of   organising effectively  the election campaign by hiring workers,  going ground to places in car, meeting people and persuading  them to vote for the candidate it is 107 proper  election  _expenses.  The touch stone in  all  these cases of payment or gratification is to find out whether the money  is paid in reasonable measure for work to be done  or services  to  be  tendered, and  whether  the  services,  so offered  amount to a bargain for getting votes or merely  to do  propaganda  or  to  persuade  voters  to  vote  for  the candidate.   The  crucial  point is the  nexus  between  the gratification and the votes, one being the consideration for the  other,  direct or indirect.  In the present  case,  the facts  as  spoken  do  not even if  true,  come  within  the relevant clause namely s. 123(1), because the offer was made only  to  make P.W. 12 work for the candidate  that  is,  to persuade  voters to support the paying candidates.  [124B-E, 125B-C, D-F] (Per Alagiriswami, J.) (2)  As far as the second charge is concerned some witnesses said that the appellant canvassed for votes claiming that he was  a  Hindu and others said that be claimed votes  on  the basis   that  his  mother  was  a  tribal  woman.    In:   a constituency  where  80%  of the voters are  Muslims  it  is extremely  unlikely that the appellant would have  canvassed for  votes on any such basis.  The appellant being a  Muslim he  could  not be said to have canvassed for  votes  on  the basis of his religion, he not being a Hindu. [109B-C] (Per Krishna lyer and Sarkaria, JJ.) (2)  (a)  The  appellant is a Muslim and his appeal,  if  at all,  is on the basis that he was an inter-caste  or  inter- racial  or inter-religious product and as such a  symbol  of unity  or  a  less  communal  Mussalman.   An  appeal  by  a candidate  that he personifies Hindu-Muslim  interplay  does not cross the line of corrupt practice. [114G-115B] (b) The section requires that the vote must be sought by the candidate exploiting his religion.  An appeal to Hindus by a Muslim candidate on the ground of his religion is impossible

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under the present Indian conditions. [115E] (c)  In the particular constituency, if one took up a  Hindu posture it would not be  an advantage to him, and therefore, it is unlikely that the appellant sougth     votes  on   the ground that  he is a Hindu.  The ground  of  religious  or communal appeal does not stand in the light of the  evidence in  the  present  case and finding of  the  High  Court  is. therefore,  wrong.  The High Court had been far  too  easily persuaded  by unsatisfactory oral evidence each of which  is of  an ad hoc character, uncorroborated by any testimony  of compelling value and is contradicted by the party  affected. The criterion of proof beyond reasonable doubt was forgotten although verbal homage was paid to it. [119C-F] [It   is  a  matter  for  profound  regret  that   political communalism  far  from  being rooted out  is  foliating  and flourishing,  largely because parties and  politicians  have not  the will. professions apart, to give up the  chase  for power through politicising communal awareness and  religious cultural identity.] [119F] (By Full Court) (3)  The  election  petition  is  vague  in  regard  to  the particulars  in support of The averment of undue  influence. More  than one amendment. was sought and still  neither  the names  of the persons nor of the places so vital  to  induce credence  and to show fairplay have been given, in spite  of the appellant urging that the allegation was vague and bold. One  cannot pick up witnesses on route and march  them  into the witness box without running the risk of their apparently consistent evidence from being disbelieved.  The charges are quasi-criminal   and  have  serious  consequences  and   all necessary  particulars have to be furnished in the  election petition  as required by s. 83.  This being absent  and  the entire  case  resting  on  shaky  ipsi  dixits  the  version tendered  by the respondent could not be believed.  [109C-D; 122A-D] (Per Krishna Iyer and Sarkaria, JJ.): (4)  Certain basic legal guidelines cannot be lost sight  of while  adjudging art election dispute.  The verdict  at  the polls wears a protective mantle in a 108 democratic polity.  The Court will vacate such ballot  count return  only  on proof beyond reasonable  doubt  of  corrupt practices.   Charges,  such as have been imputed  here,  axe viewed  as  quasi-criminal, carrying  other  penalties  than losing a seat and a strong testimony is needed to subvert  a Returning Officer’s declaration.  At the same time, findings reached  by  the trial judge, will not  be  reappraised  and reversed in appeal unless palpable errors or misappreciation are writ large on them. [111H-112B]

JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeal No. 915 of 1973. From  the judgment and order dated the 30th April,  1973  of the Gauhati High Court in Election Petition No. 2 of 1973. R.   K. Garg, S. C. Agarwal, S. S. Bhatnagar, V. J.  Francis and S. N. Chaudhary, for the appellant. D.   N.  Mukherjee,  Prodyot  Kumar Chakravarti  and  N.  R. Chaudhry, for respondent No. 2. The Judgment of V. R. Krishna Iyer and R. S. Sarkaria.   JJ. was delivered by Krishna Iyer, J. A. Alagiriswami, J. gave a separate opinion. ALAGIRISWAMI, J. I agree with the conclusions of our learned brother  Krishna  Iyer.   But I think it  necessary  to  say

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something on my own. The appeal relates to the election to the Assam  Legislative Assembly   from  Dhing  constituency.   The  appellant   was declared   elected  by  a  majority  of  1185  votes.    The respondent  filed an election petition making three  charges of  corrupt  practices against the appellant.   The  learned Judge  of the Gauhati High Court held that the charges  were made  out  and allowed the election  petition.   Hence  this appeal. The first charge was the offer of a bribe to P. W. 12.   The second  ,charge  was  that the appellant  was  guilty  of  a corrupt  practice  under section 123(3)  of  canvassing  for votes  on the basis of his religion.  The third  charge  was that he exercised undue influence by holding out the  threat that  the  people  who voted for  the  respondent  would  be identified and subjected to the same treatment as the people of Bangladesh by the Pakistanis. Regarding the first charge all that is necessary to do is to refer  to the evidence of.  P.W. 12 and 13.  P.W. 12  stated that the appellant offered him Rs. 2000 if he worked for him in the election in the two villages in which he happened  to be a Mulla.  P.W. 13 stated that the appellant told him that he  had offered Rs. 2000 to P.W. 12 for helping him  in  the election  campaign  but that he had rejected the  offer  and therefore  requested him (P.W. 13) to collect the money  and make it over to P.W. 12 and prevail upon him to work for him (appellant).   Clearly  this  does not  fall  under  section 123(1).  1  consider it, therefore, unnecessary  to  discuss whether  if money is paid ,or offered as  consideration  for votes Promised to be secured by a person 109 using  his  influence it is bribery or not.  It  is  a  good policy  not to discuss in a judgment question which do  not arise out of the facts of the case. As  far as the second charge is concerned, it is  said  that the appellant’s mother was a ’Kachari’, one of the tribes in Assam.  But admittedly she was converted to Islam before she married the appellant’s father., Some witnesses say that the appellant canvassed for votes claiming that he was a  Hindu. Some others say that he claimed votes on the basis that  his mother  was a Kachari.  All that is necessary to  say  about this part of the, case it that apart from he fact that in a constituency where 80 per cent of the voters were Muslims it is not at all likely that the appellant would have canvassed the  votes  on any such basis, there is no  doubt  that  the appellant  being  a  Muslim he could not  be  said  to  have canvassed  for  votes on the basis of his religion,  he  not being a Hindu. As  regards  the  third  charge,  in  spite  of  the   three amendments   made   to  the   election   petition   material particulars  were  not  given  on the  basis  of  which  the evidence regarding this charge could have been admitted.   I agree  with  the conclusions of my learned  brother  on  the basis  of the evidence which he has discussed that the  case of undue influence is not satisfactorily established. I  agree that the appeal should be allowed and the  election petition dismissed with costs. KRISHNA  IYER,  J. In the  current  Indian  socio-geographic context,  with its delightfully and  distressingly  diverse, traditional and complex humanity, we have to appreciate  the three  grounds  of corrupt practice  levelled  through  this election appeal against the Congress candidate who secured a lead  of  1385  votes but was allegedly  guilty  of  several malpractices  at the polls of which three have found  favour with  the  High Court and have been  challenged  before  us.

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Briefly, they are               (a)that the petitioner offered Rs. 2,000/-  to               one  Jabbar Munshi (P.W. 12) to collect  votes               for him which this righteous soul spurned  and               therefore   the  preferred  payment  did   not               materialise  although  the  corrupt   practice               under s.123(1) was   nevertheless committed;               (b)   the  petitioner,  of  the  same  Islamic               faith as his opponent though, canvassed  votes               using  the potency of a queer sort of  mulatto               religious  or  communal appeal,  thus  Petting               caught  within the coils of s. 123(3)  of  the               Representation of the People Act  (hereinafter               called the Act, for short); and               (c)   he  exercised a kind of undue  influence               to  which  people  of States  of  our  country               bordering  on Pakistan and a  sizeable  Muslim               population    may   perhaps   be    peculiarly               susceptible,    viz.,   subjection   to    the               excruciating  torture  suffered  by  the  East               Pakistanis if perchance these voters dared  to               vote against               110               the   Congress   thus  violating   the   basic               guarantee of free and fair elections contained               in s. 123(2) of the Act.               The  High  Court’s holdings on  those  charges               may, at the outset,  be set out, to get a  hang               of the controversy in this appeal               "According to the statement of Jabbar  Munshi,               which  is reinforced by that of Sahed Ali  the               respondent No. 1 had offered Rs. 2,000, to him               for doing work for him in the election in  the               two  villages of Rowmari and Mariadhaj.   Shri               Choudhury laid emphasis on the word ’inducing’               used  in  sub-clause  (A)  of  Clause  (1)  of               Section 123 and canvassed that we cannot spell               out inducement by Jabbar Munshi vis-a-vis  the               voters  putting  up in Rowmari  and  Mariadhaj               from  his statement that he had  been  offered               Rs. 2,000, to do work for the respondent No. 1               in  the  election in the  said  two  villages.               Here, again, it is not possible to agree  with               Sri  Choudhury  If a priest of  a  village  is               pressed  into service by a candidate, who  has               offered to pay him handsomely, to help him  in               the election work, it becomes patent that  the               priest  is  to use his influence  as  such  in               winning  votes  for  the  candidate  who   had               approached him.  Hence all the ingredients  of               sub-clause  (A) of clause (1 ) of section  123               are  proved  by the  dependable  testimony  of               Jabbar   Munshi   and  Sahed  Ali   with   the               consequence  that  the  corrupt  practice   of               bribery  attributed  to respondent  No.  1  is               established."               "In  view  of  the  above  discussion  of  the               relevant   evidence  I  conclude  that   Kanak               Doimari  and  Kahiram Deuri  have  spoken  the               truth   with   the consequence   that   the               respondent  No. 1 is proved to have  solicited               votes  on the basis of his being the son of  a               Boro  Kachari woman.  This appeal was made  up               him in village which were inhabited by tribals               who may or may not be considered as Hindus but

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             they  are certainly not  Muslims.   Therefore,               all  the ingredients of Clause (3) of s.-  123               are established."               :,The statements of the relevant witnesses  of               the  petitioner are that the respondent No.  1               had  told them that he is half Hindu and  half               tribal  because  of his maternal  lineage.   I               have  already  held the  statements  of  those               witnesses as acceptable.  Nothing said by  the               respondent  No. 1 in the witness box  has  the               effect,  of  robbing the  statement  of  those               witnesses  of their quality as held by me.  of               being  credible.  ’Therefore, I hold that  the               allegations  made in section C9(i)  C9(ii)  of               Part  III  of the Annexure are  proved  beyond               reasonable  doubt and as such  the  respondent               No.  1  is  guilty  of  the  corrupt  practice               mentioned in clause (3) of section 123 of  the               Act."               It   is  mentioned  in  Section  B  that   the               respondent  threatened the Muslim voters  that               in  case  they voted  against the  Congress,               whose nominee be was, it would be possible               111               this time in view of the new system of  voting               introduced,  to detect that fact and  that  in               such  an  event they shall be  severely  dealt               with.   According  to the  new  voting  system               introduced  in  1972, it may be  stated,  each               elector,  to whom a ballot paper  was  issued,               had either to make his signature or place  his               thumb  mark on the counter-foil of the  ballot               paper.  That fact, it is mentioned in  Section               B,  was prominently brought to the  notice  of               the  electors by respondent No. 1, The  threat               held  out to them, besides that they shall  be               severely dealt with in case they voted against               the   Congress,   was  that  they   shall   be               considered  and  treated  as  Pakistanis   and               supporters  of  Yahya Khan and  having  worked               against  the Congress Government  which  meant               and  implied  that they  Were  voting  against               Srimati  Indira Gandhi and as such were  anti-               national.   In  Section F of Part  VI  it  was               stated  that the respondent No. 1 and the  men               working  with him had propagated that  if  the               electors voted in favour of a candidate  other               than that of the Congress ’the Congress  would               carry  out torture amongst the Muslims as  was               done in suppression by Pakistan".               "The up-shot of the discussion of the evidence               of a large number of witnesses examined by the               petitioner and the respondent No. 1 bearing on               the allegations set out in Sections B and F of               Part  VI is that those allegations are  proved               to the hilt." Hearing  this appeal, we realised that there was an  endemic sensitivity  to  election propaganda and method  in  certain regions  which would be wasted strategy else  where  because human  responses  differ according  to  the  socio-political conditioning  of  groups  and  communities.   Here  we   are concerned with a tribal area of Assam, a border State with a heterogeneous  composition  of tribesmen, vaguely  Hindu  by persuasion,  plainsmen Hindus and a ’considerable number  of Muslims.   A Mulla or Muslim minipriest may have  sway  over

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his  orthodox  flock here while elsewhere his voice  may  be ignored.   A  threat of East Pakistan type  terror  or  pro- Pakistan  branding is prone to frighten many here  while  in Central  India  or  the South such a  bogey  may  have  less minatory impact.  Religious appeal or communal appetite in a bigoted  and  backward population is stronger  than  in  ail enlightened  or  indifferent  or  other  area  with  a  long tradition  of peaceful co-existence of variegated  religious groups or cosmopolitan people.  It all depends on the socio- political  pathology  or  sensibility of  each  province  or constituency.  We cannot dogmatise universally without being convicted  of  social  inexperience  or  lack  of  political realism.   Shri  Mukherjee, counsel for the  respondent,  is right  in stressing the interplay of divergent kinks  making up the mores of the Dhing Assembly constituency.  Before  we can competently judge human nature we must educate ourselves about  the  behaviourism  of the  concerned  group  avowedly pluralist  in  this case.  Law, after all, is a  species  of sociology. Even so, certain basic legal guidelines cannot be lost sight of  while adjudging an election dispute, The verdict at  the polls wears a 112 protective  mantle in a democratic polity.  The  Court  will vacate  such  ballot  count  return  only  on  proof  beyond reasonable  doubt  of corrupt practices.  Charges,  such  as have  been  imputed  here,  are  viewed  as  quasi-criminal, carrying  other  penalties than losing a  seat,  and  strong testimony  is  needed  to  subvert  a  Returning   officer’s declaration.   On  the other side of  the  scales,  findings reached  by  the trial Judge will’ not  be  reappraised  and reversed in appeal unless palpable errors or misappreciation are  writ large on them.  Such being our broad  perspective, let us come to grips, with the facts and the law arising  in this case. We will first deal with the second charge-held proved by the High  Court  but  hardly  easy  of  solution  in  the  legal connotation  of  the  provision Ls. 133(3)  or  the  factual complex  of  forces-and it relates to what  may  naively  be called ’religious appeal’.  For an intelligent understanding of  this  translucent  provision the best  beginning  is  to reproduce  the  subsection and then search for the  soul  of this  wholesome legal man on communalism in elections a  ban of  Indian politics which dies hard, defiant of law and  our secularist  creed.   Likewise, the voluminous  testimony  in this  case, bearing on the spectrum of appeals  attributable to a variety of shades and hues from crude Islamic to  plain ancestral  kinship  and tribal fellowship,  baffles  identi- fication,  being  curiously psychic  and  sociological.   In these areas of evidence judicial navigation towards the port of truth is not so simple as the homing instinct or habitual test of judges whereby they break through false and doubtful depositions.  Local obsessions and subjective  exaggerations have to be kept in leash and objective touchstones and  safe Procedures relied on if we are not to get lost in mere  bulk of  evidence or cynical negation of good and bad.  To  judge is  in  part an esoteric art, not a rule of thumb  and  this case  is a real challenge to our ability to feel our way  to veracity through university.  When elections are  challenged on  grounds with a criminal taint, the benefit of  doubt  in testimonial matters belongs to the returned candidate. Section 123(3) of the Act reads               "Corrupt  practices.-The  following  shall  be               deemed to be corrupt practices for the purpose               of this Act

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             x     x      x     x     x     x               (3)   The  appeal by a candidate or his  agent               or  by any other person with the consent of  a               candidate  or  his election agent to  vote  or               refrain  from  voting for any  person  on  the                             ground of his religion, race, caste, community               or  language  or  the use  of,  or  appeal  to               religious symbols or the use of, or appeal to,               national symbols, such as the national flag or               the  national emblem, for the  furtherance  of               the   prospects  of  the  election   of   that               candidate  or for prejudicially affecting  the               election of any candidate." The  conscience  of this clause-and the core  of  the  legal inhibitions  to  impart  penal incarnation  to  the  secular mandate commonly expressed in biblical language 113 "Render therefore unto Caesar the things which are Caesar’s; And unto God the things that are God’s." The  founding faith of our poll process is to ostracise  the communal  vice from the campaign, having suffered from  this virus  during  the Raj.  This great idea must  brighten  the legal  phrases  so that the purpose, the whole  purpose  and nothing but the purpose may be carried into effect. The  gravamen  of the charge as covered by  sec.   C(i)  and C(ii‘  of  the petition is that the  1st  respondent  sought support  from tribals on the score that he was  half-tribal, half-Muslim-his  mother  was  of  Kachari  tribe-while   the petitioner  was  unmitigated  hundred-per-cent  Muslim,  and amongst  Hindus settled from the plains he pleaded  that  he was after all half-Hindu and so, obviously, more  acceptable than  are undiluted Muslims like the petitioner.  The  facts of  parentage  are that the 1st respondent’s  mother  was  a tribal  Hindu  who  was converted to Islam  on  the  eve  of marriage  to a Muslim, The refutation by the respondent  has taken  two  forms.   Firstly, no such half  tribal  or  like propaganda  was  done  and secondly,  such  a  Hindu  Muslim hybridisation in parentage, even if urged tactically  before the relevant communities, did not fall within the  obnoxious provision  regarding religious or communal appeal.  At  best it  was  a  sentimental sop based on  ancestry  or  kinship, religious rivalry in appeal being out of the ring since both candidates  were  apparently full-blooded Muslims.   We  are free to agree that, what with mixed marriages and change  of religion  and  the gamut of beliefs and  unbelief  and  like social  phenomena, viewed against the backdrop of a  dynamic policy  of secularism and national integration, the  correct construction   of   the   sub-section   is   fraught    with difficulties. What is religion?  What is communal or caste appeal? (We  do not have to deal with the thorny problems relating to appeal to  language,  in  this  appeal).   Some  of  the   inherent confusion besetting ,appeal to religion’ have been indicated by this Court in Rahim, Khan case.(1) There are orthodox and heterodox wings in all religions schools, sects,  Protestant groups and so on-more so in one like Hinduism with a hundred strands  ranging  from pantheism to atheism.   We  are  here concerned  not so much with theology as with sociology,  not with  intra-religious  feuds  as with the  divisive  use  of religious  faith  by  projecting  them  into  and  polluting politics   and  social  life  Strangely  enough,  both   the candidates  are  professing  Muslims,  speaking,  in  formal terms,  the  petitioner being a revolutionary  communist  to boot.  Judicial insight into practical politics,  measuring,

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the degree of contamination, through injection of religious, racial,  caste  or communal poison, of the  blood-stream  of healthy  electoral processes is a socio-legal essay,  as  is discernible  in  this  Court’s ruling  in  Kultar  Singh  v. Mukhtiar  Singh(2)  that religious appeals  can  conceivably play even in a situation where both candidates swear by  the same  denomination  or faith.  Within  the  fold,  variables operate  and blurred areas exist.  A fanatic may seek  votes castigating his co-religionist (1)  [1974] 11 S.C.C. 660. (2) A.I.R. 1965 S.C. 141. 9-L 379 Sup.  CI/75 114 rival  with  reforming zeal as a de faco apostate.   But  to delve  meticulously  into  these  dark  mines  of  divergent opinions  and  clashing practices and hold  that  ’religious appeal’  has been invoked is to overdo legality  and  hamper social  advance.  Without being obsessed by  procedents  and freeing ourselves from theological inhibitions we proceed to interpret s. 123(3) of the Act in the social setting of this case.   We cannot countenance, in the name of narrow law,  a push back to movements blending of religions, races,  castes and  communities  if  it will  homogenise  the  people  into national unity, social solidarity and secular mentality.  If the  rule  of law must run close to the rule of  life,  this sociological  view-point stands vindicated, since  elections politically expose the social inside in the raw. Taking  this  stance  is  to read  legal  realism  into  the expression   ,religious   appeal’  used  in   the   relevant provision.   To exhort the masses-assuming  the  appellant’s facts  to test the legal thrust of his argument-to vote  for himself  because  his  mother was a tribal or  a  Hindu,  is perhaps prone to excite the clan feeling in a vicarious way, though  the  appeal  is by a  Muslim.   Does  this  sympathy potential  of  the  appeal to  the  electorate  vitiate  the election  as  an  appeal  to religion  to  get  votes  ?  To sensitize the voting masses on every politically  irrelevant appeal is bad but not yet illegal.  Law lays down  practical norms,  not  prohibitions  of  intangible  injuries.   In  a pluralist  society like ours, a certain irremovable  residum of  ’minority  complex’  will haunt the polls,  as  it  may, perhaps  in a lesser measure, in the United States  or  even the  ’United  Kingdom.   A Jew, a black, a  Catholic  or  an Indian  or  woman  will, without  special  appeals  in  that behalf, rouse prejudices for and against in some  countries. Even  in  India, the religion or caste or community  of  the candidate  may exude through his name, dress, profession  or other external indicium.  Does it mean that his  candidature is imperiled by the inscription of his name or ,caste suffix in  posters  or  pamphlets ?   Something  more  substantial, intentional  and  oblique  is  necessary.   Similarly,  mere reference  to ,one’s tribe, ancestry or genetic  commingling may  not  be  tainted with the legal vice  of  religious  or communal appeal, exceptional situations apart.  It may  well he  that  a strong secularist candidate may plead  with  the electorate to be non-communal and therefore vote for him ,on the  basis  that he was an inter-caste  or  inter-racial  or inter-religious  product  and as such a symbol  of  communal unity.   Indeed,  mixed marriages  may  accelerate  national integration and a candidate cannot be warned off by the  law from  stressing this non-communal merit of his.  That  would be a perversion, of the purpose of the provision. The substance of the appeal, if at all is-not the  delicate, legal concoction for, Court consumption-that being of  Hindu and  Muslim extraction he is a less communal Mussalman.   If

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some misunderstand, the bulk understand and the masses  have an uncanny political sense.  Viewed from another angle, the hortative  exercise  is  relatable  to  parentage,   vaguely sounding  in a sub-conscious clan feeling-too remote,  too attenuated to be a plain, or even indirect appeal on grounds of   religion  or  community.   Those  who  urge,  in   some roundabout manner ’Hindu Muslim Ek Ho’ are doing no violence to  law  but  promote  its object.   We  disagree  with  any contrary reasoning or                             115 inical approach and hold that an appeal by a candidate  that he  personifies  Hindu Muslim interplay does not  cross  the line of corrupt practice.  The sharp edge of the appeal, not its  elitist  possibility or over-nice implication,  is  the crucial, commonsense test. Now  to  the  factual conclusion.  Did  the  1st  respondent project Hindu profile or, more plainly, did he articulate  a Hindu  communal  appeal ? Religious, it could not  be.   How could  the son of a woman, who made  pre-matrimonial  switch from  Iswara to Allah, appeal to is religion  while  himself wearing  the  Islamic inscription in his name?  to,  declare oneself  an  offspring  of a religious renegade  is  not  to appeal  to  religion.  It is unlikely because  it  does  not socially pay.  Even Hindu tribals may probe beneath the skin and politically discover he no not a Hindu.  Moreover is  it strategy  in  a  fevered situation like  a  hotly  contested election,  to  propagate, in one part  of  the  constituency which is predominantly and backwardly Muslim, that one is  a half Hindu ?  You cannot insulate such appeals to  specified villages  as  no  iron  curtain  halts  election  campaigns. Counter-productive would have been the result.  Whispers may have  succeeded,  not  public meetings, if  the  object  was discreetly to spread communal propaganda in a secluded  area put prudently to prohibit its diffusion into other areas  of the  same constituency.  But here the case is one of  public meetings  and  drama  stage  with  loudspeakers  and   other publicity and wedding gathering, not nocturnal sub  silentia circulation   of  injurious  facts  appealing  to   communal feeling. Before  we  proceed directly to deal with  the  evidence  we shall  refer  to one more dimension of the  law  of  corrupt practice  based  on communal and allied appeals.   The  vote must  be  sought by the candidate exploiting  his  religion. Here the 1st respondent is avowedly a Muslim.  An appeal  to Hindus  by a Muslim candidate on the ground of his  religion is  impossible under the Indian Sun, things as  they  stand. Nor  is there any religion or tribe for  hybrids,  something like  ’Hinduslim’.  The finer shades, minor tenets or  avant garde movements present in all religions are not the  target of  the  sub-section which seeks to strike  at  the  cruder, baser,   divisive   trends  being  fostered   by   casteism, communalism  and  the  like.   All  great  religions   speak basically  the same truth and converge towards the  Religion of  Man.   Science  itself is tending to  be  spiritual  and religions  are turning towards science.  Man and  his  Maker are  the profound theme of the major religions but some  men pervert this deeper urge to make gods go to war against each other   by   forming   hostile   camps.    Indian   history, particularly under the British, is tainted with godly  blood of  humans  and  the cunning  manoeuvres  of  candidates  to resurrect  that spirit during electoral battles is  anathema for the law.  We have no hesitation in taking the view  that here  was no religious exploitation by the candidate of  his religion or community, legally or factually.  Tribalism  may perhaps  be stretched to embrace communalism but the  accent

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in the evidence is on half-Hindu bias, not tribal  identity. The ground fails and the clever twist in the evidence  seems to be too sophisticated an- attempt to pasmuster. It  is  not  out of place to point out that  if  we  stretch semantics  out of context the appellant may, by calling  his rival a revolutionary 116 communist (which he claims to be), commit a corrupt practice be cause to be a communist, nearly means, as a good Marxist, to  be  materialist disawoving all religious  faiths.   Such obviously  cannot  be the connotation.  Words  of  wide  and vague   import,  like  appeal  to  religion,  must   receive restricted  construction  lest  law  run  riot  and  up  set accepted   political  standards.   For,  certain   political parties-an(  therefore, their candidates-have mild  communal overtones  and Court must confine themselves to  clear  mis- direction of voters grounded on plain religious or  communal appeal.   Again, to claim to be a) Assamese or  Bengalee  is not necessarily a communal appeal-may even be declaration of minority status of the group.  In certain circumstances such a  vote-catching  technique  may  be  violative  of  Article 123(3).  It all depends on the over-all factors and setting.                          THE FACTS If  the  appellant had placated the Hindus by  a  communally pala table version of his ancestry, the news of the  meeting would  have  taken wings and the Muslim  voters  would  have avenged  themselves on him--a risk he was unlikely to  take, the  contest being close and damage by  inflammatory  recoil from the Islamic and being incalculable.  We are inclined to think  that the probabilities are against the  alleged  half Hindu story. Let us examine the oral evidence bearing on this issue.  But since  this  branch of the case is built on  lip  testimony, judicial  scepticism  has to be activised  before  upholding this species of alleged corrupt practice.  Witnesses may lie with  counterfeit  candour,  and  judicial  hunch.  may  not successfully    X-ray   the   unveracity    of    apparently disinterested persons.  While it may be hazardous to stake a conclusion  on  so serious and undetectable a matter  as  an election result because a single witness or more swears that way,  no  rule of thumb wit work, since  Courts  weigh,  not count,   witnesses.   Broad  probabilities,   corroboration, circumstantial  or  oral,  the non-production  of  the  best evidence  and a host of like factors have to be  taken  note of,  even  if not elaborately, documented in  the  judgment. The  screening  and  testing processes will  also  give  due weight  to the trial Judge’s sense of credence.   Ultimately the  appellate  Court  has  to  have  an  appraisal  of  the witnesses’ truthfulness and accuracy, the Judge’s experience of  men  and matters and careful reflection being  the  lie- detector. The  pleadings  of the petitioner leave much to  be  desired from  the  point  of view of  precision  and  particularity, especially specification of persons and places so  essential to fair-play in the legal process in such matters.  Even  if one  winks  at  this blemish. there  must  be  strict  proof otherwise.  The general criticisms made by Mr. Garg, counsel for the appellant, have force and we will deal with them  in the light of the explanation offered by Shri Chatterjee  for the petitioner. The  appellant  has  denied having made any  such  Hindu  or tribal appeal to the voters and the burden of proof rests on the respondent petitioner.  We may also discard the new case casually  set  up through some witnesses that  the  Congress candidate  had declared himself a Hindu (not half but  full)

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and  asked at public meetings for support on  that  footing. Equally adventitious is the emergence of the evidence 117 that  the appellant campaigned on the basis of his being  an Assamese.   While absence of particulars does not  stand  in the  way  of  the Court considering the evidence  led  on  a ground  of  corrupt  practice  if  such  evidence  had  been admitted without objection and no prejudice has been  caused (vide  A.I.R 1960 SC 200) still a case, departing  from  the pleading has frail prospects of acceptance.  The failure  to plead  is  a  blow  to  the  credibility  of   after-thought testimony.  In the present instance, although some witnesses have  lent up support to the story that the appellant  urged that  he  be regarded as Hindu and other P.Ws.  that,  being Assamese, the voters should back him, we do not give  credit to  such belated ipse dixits.  May be, as earlier  observed, the  Assamese  appeal, or tribal sentiment, may  in  certain situations savour of communal appeal and on other  occasions be a request by a member of a weaker or backward or minority section to the people for voting help a democratic  gesture- we need not examine such possibilities here, the evidence on the point being naked assertions unfounded in pleadings  and unconvincing  on probabilities.  The Hindus or  Assamese  or tribals  were  small numerically, about 80%  of  the  voters being  Muslims  and the balance sheet would show  more  loss than gain if one took up a Hindu posture.  Nor is there  any force  in the submission that witnesses R. Ws. 30, 8, 9  and 12  themselves  had  admitted the  holding  of  the  alleged meetings  because  they  do not agree on  the  religious  or communal appeal at all. The heap of half-Hindu evidence may be analysed, not meticu- lously  but applying commonsense tests.  P. Ws. 53, 54,  55, 57, 65, 66, 67, 68, 79, 80 generally testify to the case  of public  appeal  in  tribal and  non-Muslim  areas  that  the petitioner  has  part-Hindu blood flowing in his  veins  and must be voted for on that basis.  Impressive in numbers they are but the phalanx breaks down on closer examination. We   will   eshew  the  impressionistic  approach   to   the credibility  of witnesses but look out  for  interestedness, lack  of corroboration and other unnatural features.   By  a similar  token we will examine the half-tribal appeal.   The learned  trial Judge has generally chosen to  believe  these witnesses  and  we will have that in mind  while  appraising their   testimonial  worth.   P.W.  53  testifies   to   the appellant’s visit to a village library and asking for  votes pleading that he may be taken as a Hindu ’because his mother is  a  Kachari Hindu’.  He admits that the  appellant  is  a Mohammedan   and  still  states  that  ’nobody  raised   any objection  to what he said’.  From his evidence it  is  seen that  there were three persons Puran, Padmaram  and  Dharani who  were workers of the present respondent sitting  in  the library.   Although  they  are  interested  witnesses  their corroboration could have added some weight to the  testimony of  P. W. 53.  Moreover the same witness deposes ’A  polling Officer  was  also  sitting with us when  respondent  No.  1 ’talked’.   Obviously the evidence of such a  witness  would have reinforced the credibility of P. W. 53.  We are  unable to take at its face value the testimony of this easy witness particularly  because he goes beyond the  half-Hindu  theory trotted out in the pleadings. P.   W.  54 is no better.  He also speaks to the request  by the  appellant that he be taken as a Hindu by the voters  of the village since 118 maternal  Hinduism  flowed through his veins.   However,  he

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agrees  that  the appellant bears a Muslim name  and  it  is unlikely that he would have visited a Hindu wedding to claim himself  a Hindu.  The surprising thing about this  witness is that he swears ’I took the respondent No. 1 to be a Hindu as well as a Muslim’.  That a unanimous decision to vote for the  election-petitioner was reversed unanimously  the  next day  after  the aforesaid appeal to vote on the basis  of  a Hindu  maternity  is  liable  to be  rejected  even  by  the gullible.   We feel P. W. 54 is speaking with his tongue  in his cheek. P.   W.   55   also  fares  ill   although   he   apparently corroborates P. W. 54.   Strangely  enough  this   gentleman admits that notwithstanding the Hindu appeal ’the respondent No.  1  gave out his name as Abdul Hussain Mir  which  is  a Muslim name and so we take him as a Muslim’.  He proceeds to state that he met the candidate on a later occasion but  ’on this last mentioned occasion, respondent No. 1 asked me cast my  vote  in  his  favour  and  nothing  more’.   He  hardly convinces  us.  It is significant that P. Ws. 54 and  55  do not speak of any corroborating persons apart from Sri  Neog, the supporter of the appellant.  A communal appeal made at a wedding  party  could easily have been corroborated  by  the bride’s  father or other important persons of  the  village. This  is a lacuna and the story itself can easily  be  woven without fear of contradiction. P.   W.  57  repeats his predecessors, but the  very  appeal made  is self-contradictory because the words attributed  to the candidate are ,that though he is a Muslim ... his mother is  a Kachari Hindu and so he may be taken as a Hindu’.   He mentions the names of certain others who were present on the occasion  as ’leading persons viz.  Buddheswar, Bhogram  and Baliram’.   But they have not been examined.  P. Ws. 67  and 68  depart  from  the type, design  by  asserting  that  the appellant asked for votes as he happened to be an  Assamese. The former continued ’I joined issue with him for the reason that  he bore a Muslim name’ and whent on to assert ’I  told the  respondent  No.  1 that he is a  Bengalee  and  not  an Assamese . . . Today also I consider the respondent No. 1 as a  Mymensinghia  of East Bengal, that is, a Muslim.   P.  W. 67’s evidence cannot carry conviction.  Nor are we impressed with  the  testimony  of  P. W. 68.   We  have  perused  the deposition  of P. Ws. 79 and 80 and for the sake of  brevity we   may   say   that  their  testimony   is   weakened   by improbabilities and much oral evidence, served in  heapfuls, cannot help induce judicial certitude. P.   Ws.  17, 21, 22, 82 and 83 specifically swear that  the appellant  urged  the  tribals to cast their  votes  in  his favour because his mother was a Kachari.  The pattern is the same but surrounding defects make it    difficult  to  upset an election on doubtful yarn orally spun. There is a mix up regarding the communal appeal spoken to by P.   W.  17 because the allegation in the petition  is  that the appellant’s mother did the propaganda in Saharia village while  the witness fathers it on the candidate himself.   Of course,  he is a polling agent of respondent-petitioner  and is  willing  to  swear as directed.  Not only  is  there  no corroboration but R. Ws. 7, 8 and 15 deny the imputation. 119 P.   Ws.   21  and  22  speak  to  communal   representation soliciting  votes on the strength of maternal Hinduism,  the propaganda being done in Batabari village.  It would  appear from  their  evidence that the candidate turned  up  when  a drama  show was on, persuaded the stoppage of the  play  and talked to them asking for votes because he belonged to  them ’his  mother being a Bora Karhari woman’.  The  evidence  is

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vague, unlikely and denied by the appellant RW 1 and by RW 5 another man of the village.  In this state of dubiety, it is a  high  risk to run to rely on the testimony of  these  two witnesses. P.   Ws. 82 and 85 speak to a similar propaganda in  village Nijdhing.  Both of them go beyond the case in the  pleadings and put forward the story that the appellant urged that  the villagers  ’should  vote for him as he is  a  Hindu’.   This evidence is contradicted by R. W. 8, the candidate.  We  are far from satisfied that such glib oath of casually picked up witnesses speaking to circumstances more, ambitious than the pleading  sets  forth  should from the basis  for  proof  of corrupt practice. To sum up, the ground of religious or communal appeal hardly commends  itself to us in the light of the evidence  in  the present  case and we are constrained to reverse the  finding of  the  High Court.  We are inclined to  observe  that  the learned  Judge  has  been  far  too,  easily  persuaded   by unsatisfactory  oral evidence each of which is of an ad  hoc character, is uncorroborated by any testimony of  compelling value  and  is contradicted by the  party  affected.   Proof beyond   reasonable  doubt  seems  a  forgotten   criterion, although  verbal homage is paid at the start by  the  Judge. The dictionary research into the meaning of religion,  race, caste and community and the ethnic enquiry into tribal  life launched  by the tribal Judge may be useful but not  conclu- sive  and is legally elusive.  Myriad forms of rubbing  home communal  appeal exist but if intangible, has to be  ignored in the work-a-day world, law being pragmatic, not perfect. It   is  a  matter  for  profound  regret   that   political communalism  far  from  being rooted out  is  foliating  and flourishing largely because parties and politicians have not the will, professions apart, to give up the chase for  power through politicising communal awareness and religio-cultural identity.  The Ram-Rahim ideal and the secular ideology  are often the Indian politicians election haberdashery, not  his soul-stuff.   Micro- and mini-communal fires are  stoked  by some  candidates  and leaders whose over-powering  love  for seats in the Legislature is stronger than sincere loyalty to secular  electoral processes.  Law can efficiently  regulate and  control  if wider social legitimation  is  forthcoming. And this key factor is absent, so much so wrong  methodology becomes rampant.  Small wonder, even revolutionaries, imbued with  realism,  often prove ’boneless wonders’  when  pitted against communal politics in elections.  Courts can act only if cogent proof is adduced.  The charge fails. We now move on to the terrorising tactic allegedly  resorted to  by  the  appellant.  We have earlier  noticed  that  the politics and practices of electioneering may vary from  area to  area  and what is good in Tamil Nadu may be  foolish  in Nagaland, such being the cultural 120 mosaic  that is India.  We will transport ourselves to  this constituency, respond to its sensitivity and seek the  truth of the charge of threat of voters in that milieu. The pleading in this behalf casts the net too wide and vague and the complaint of the appellant that particulars have not been  forthcoming  is not without force.   The  trial  Court itself  has negatived some of the grounds relied on  by  the petitioner under the broad head of undue influence,  tabooed by  s.  123(2) of the Act.  What has survived and  has  been upheld  is all that falls for our consideration.  The  drift of   the  charge  is  that  the  Congress   candidate   who, undoubtedly,  had  the propaganda backing  of  even  Central Ministers  who landed in helicopters, that the  voters  were

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told  about a change in the method of voting which  required the affixture of signature or thumb impression on the ballot and the likelihood of detection of the identity of the votes cast,  with  reference to the voter.  The next step  in  the threat  is  that if anyone was found to have voted  for  the communist-petitioner  he  would  be subjected  to  the  same torture  the  East Pakistanis suffered  under  the  Pakistan regime.  The macabre picture of the blood-bath in Bangladesh before  it was born was perhaps the psychic content  of  the threat  held out against anti-Congress electors.   Making  a margin for the ultra sensitive nature of the constituency to this  grim  threat  we  have to  see  whether  this  awesome propaganda  has really been made.  Proof must be  clinching, before  grave  charges  can be made  good.   Oral  evidence, ordinarily, is inadequate especially if it is of indifferent quality or easily procurable. P.   Ws. 3, 5, 6, 7, 8, 9, 14, 56 and 58 have been relied on by  the  petitioner to press home the charge  of  threat  of torture  or undue influence by that means.  Of  course,  the villages’  assigned to the witnesses vary and the  appellant has  not only denied by his testimony but has  pressed  into service  other witnesses to repudiate the  intimidatory  im- putation.   They  are  R. Ws. 28, 31 and  35  in  regard  to Salkathi  Pathar  village,  R. Ws. 30 and 35  in  regard  to Palastholi  village;  R. Ws. 9, 12, and 38 relating  to  the alleged  meeting at Rowman; R. W. 28 in regard  to  palaswli Panbari village; R. W. 36 with reference to Jarabari and  R. Ws. 38 and 42 negating the story in relation to Doomdoomia. A brief and insightful survey of all this testimony may  now be  undertaken.  P. W. 3 swears that the  appellant  visited his house on March 10, 1972 accompanied by R. Ws. 31 and  35 and  others.   When  asked he mentioned that  as  before  he intended to vote for the petitioner-respondent whereupon the appellant  told him that according to the latest  system  of election  ’my thumb mark shall be taken on the ballot  paper and  if it was found that I had voted for a candidate  other than  a  nominee of the Congress, I shall be killed  in  the manner  of  East-Bengalees.  I was also  apprised  that  all those voting against the Congress nominee shall be set up in a  line  and killed in the way the East Bengalees  had  been done  to death by the West Pakistanis’.  This threat  turned his  vote towards the Congress candidate, says the  witness. He  had  kept  this terrible fact a secret  till  after  the defeat of the election petitioner.  The gruesome version  is too  terrifying to be true in the conditions  prevailing  in India  in  1972.  It must be remembered that  the  election- petitioner is a man of consequence being 121 the President of the Managing Committee of a Madrasa in that area  and former M.L.A. Of course, the substantial  vote  he has polled also shows the poor deterrence the alleged threat has  had on the constituency.  P. W. 5 encores this case  of threat and mentions the names of R. Ws. 30 and 35 as  having accompanied  the appellant.  The witness admits that at  the 1967 General Elections he voted for the communist candidate, i.e.,  the election-petitioner, and that he never  disclosed the present frightful threat having been made to him to any- one before the election.  A perusal of the evidence of these witnesses   just   referred  to,  in  the   light   of   the contradiction  by the concerned R. Ws., makes  us  extremely hesitant  to  act on their deposition.  Indeed  we  discount their credibility. P.   W.  6,  the  headman of a village and  President  of  a Madrasa, deposes to a public meeting in the Madrasa compound at  which the appellant and his supporter Shri  Neog  spoke.

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The  theme was the same except the ruddy embroidery that  if anyone voted for the communist candidate everything would be bloodied like the communist flag.  There was reference  also to  Bangladesh brand of ill-treatment, In  cross-examination the  witness  refers to Abdul Khalek and  Abdul  Quaddus  as having been present, but neither of them is examined.  It is surprising that till the poll was over this witness did  not divulge the threat of violence for getting votes to any  one and  this  strikes  us as improbable  remembering  that  the witness is a headman of a village.  The appellant as well as Shri Neog have contradicted this version.  R. Ws. 12 and  38 have also denied the holding of threats at that meeting.  Of course, their evidence by itself may not be compelling. P.   W.  9 speaks in the same strain as P. W. 6. So also  P. W.  14 who claims to be a Congressman while  deposing  anti- Congress,  not  a  surprising phenomenon  in  election  case evidence.   It looks odd that this witness should  say  that ’excepting   Shri  Neog  aforementioned,  no   other   Hindu participated in the meeting.  Such an open threat is  likely to counter-productive in a predominantly Muslim area, parti- cularly  when we remember that the petitioner-respondent  is also a man of considerable influence.  There is reference by P.  W. 14 to ’ some bustle in the meeting’, when the  threat was uttered ’but I cannot say whether it was one of approval or disapproval’ says P. W. 14. P.   Ws. 7 and 8 have given evidence of domestic delivery of the threat.  Both of them speak to the visit at night of the appellant and his revealing the change in the election rules which  would  require thumb impression or  signature  to  be appended to the ballot paper and ’the further shock to those who  voted for the communist party that they would  be  shot dead.  The possible corroboration could have come only  from one  Abdul  Ghani and Isomuddin Master neither  of  whom  is examined  by the petitioner but the latter figures as R.  W. 28 to deny the story. P.   W.  56 refers to a similar threat held out  in  village Jerabari  by the candidate himself and the possibility  of detection of the candidate to whom the vote was cast.   This Homeopathic Doctor owns the presence of Sahed and Anwar  but neither  of them has entered the witness box to  corroborate this case. 122 P.   W.  58  was not even mentioned in the  witnesses’  list although  he repeats the true-to-type case of  threat.   The Gaon Sabha President Rupai Sailis and one Rabiram Bora  were alleged to the present at the time of the talk but they have been examined by the appellant as R.    Ws.  38 and  42  and have denied the whole case of threat. We  have  to  remember in assessing the  evidence  of  these witnesses  that  the election petition has  been  blissfully vague  in  regard  to  the particulars  in  support  of  the averment  of undue influence.  More than one  amendment  was sought and still neither the names of the persons nor of the places so vital to induce credence and to show fairplay have been  given.  We need hardly emphasize that one cannot  pick up  witnesses en route and march ;them into the witness  box without  running  the risk of  their  apparently  consistent evidence  from being disbelieved.  After all we are  dealing with  a quasi-criminal charge with serious consequences  and all necessary particulars have to be furnished in the election  petition.  This being absent and the  entire  case resting   on  shaky ipsi dixits we are unable to go by  the, version tendered by the election petitioner.  The upshot  of the discussion is that we are far  from satisfied about  the conclusive veracity of the case of undue influence and  have

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therefore   to   find  against   the   election   petitioner respondent. Before taking leave of this part of the case it is necessary to emphasise that the wisdom of the law of pleadings bearing on  election  petitions has set down  strict  provisions  to ensure  that fairness of opportunity is given  in  fastening corrupt  practices on the successful candidate.  Section  83 significantly  insists  on  all  material  facts  and   full particulars being set forth at the earliest stage.  To avoid this duty is to play foul and we as umpires will not  easily reckon  the  goal scored.  The rules of the  game,  in  this decisive  democratic  game  where power  corrupts  even  the techniques of proof, will be enforced in Court.   Precedants are a profusion on this issue and the law is so settled that we do not cite case-law in support.  Here, three  amendments were  sought  and  made, of the  petition  by  the  election petitioner   and  objection  about  bold,  vague,   twilight allegations  were urged by the opposing party.  And yet  the election  petition  remains bereft of specificity  on  vital matters.  The penalty will, in any case, be a stricter, more sceptical   scrutiny  of  the  testimony  brought   by   the delinquent  party.  We frown on tactics of keeping  material particulars  up one’s sleeves.  That is neither cricket  nor court process.  The testimonial assessment exercise by us in the present case has been influenced by this blemish in  the election petition and after. The  last surviving corrupt practice of bribery may  now  be examined  from  the legal and factual  angle.   The  former, simpliutic  on  the  surface,, is blurred  and  beffling  in certain  practical situations.  Briefly, the charge is  that the appellant offered to P. W. 12, Jabber Munshi, a mulla or mosque  functionary with religious influence over his  fold, the  expressed object being ’to collect votes’ for him.   In evidence, the mulla crystallised the case thus :               "The  respondent No. 1 approached me and  said               that  he wanted to have a talk with me.   Then               respondent  No.  1 took me inside one  of  the               rooms of Johuruddin’s house and                                    123               there  offered me Rs. 2,000/- if I worked  for               him  in  the election in the two  villages  of               which  I happened to be the Mulla.   I  turned               down  the proposal since it was unbecoming  of               me and then came out of the room." A  critical  appraisal of the evidence on this part  of  the case  has lead us to conclude that the facts deposed to  are altogether   untrustworthy.   Facts  failing,  law   becomes otiose.   Even  so, having regard to the importance  of  the subject and largely out of deference to the counsel who have addressed  long arguments and highlighted the High  Court’s reasons  on  the  point we think it proper  to  express  our opinion.  For an incisive understanding of the import of  s. 123  (1) we Will assume the facts to be correct.   Precision in  thought being essential, we will set out  the  provision itself :               "123.  Corrupt practices.-The following  shall               be  deemed  to be corrupt  practices  for  the               purposes of this Act               (1)   ’Bribery, that is to say,-               (A)   any   gift,  offer  or  promise   by   a               candidate or his agent or by any other  person               with  the  consent  of  a  candidate  or   his               election  agent of any gratification,  to  any               person, whomsoever, with the object,  directly               or indirectly, of inducing-

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             (a)   a person to stand or not to stand as, or               to  withdraw or not to withdraw from  being  a               candidate at an election, or               (b)   an  elector  to  vote  or  refrain  from               voting at an election, or as reward to-               (i)   a  person  for having so  stood  or  not               stood,  or for having withdrawn or not  having               withdrawn his candidature; or               (ii)  an elector for having voted or refrained               from voting;               (B)   the receipt of, or agreement to receive,               any gratification,   whether as a motive or a               reward-               (a)   by a person for standing or not standing               as, or for withdrawing or not withdrawing from               being, a candidate; or               (b)   by any person whomsoever for himself  or               any other person for voting or refraining from               voting or inducing or attempting to induce any               elector to vote or refrain from voting, or any               candidate  to withdraw or not to withdraw  his               candidature.               Explanation.-for  the purposes of this  clause               the  term gratification’ is not restricted  to               pecuniary   gratification   or   gratifications               estimable  in money and it includes all  forms               of  entertainment and all forms of  employment               for reward but it does not include the payment               of any expenses bona fide incurred at, or  for               the purpose of, any election and duly  entered               in  the account of election expenses  referred               to in section 75."  124 One thing is clear.  A mere offer is enough, given the other ingredients.   An attempt to commit crime is as bad  as  the commission, if proved infallibly.  To pay money ’to work for him  in the election’ does it become illegal  gratification of  the  corrupt species ? We may slur over  the  minor  gap between ’collecting’ votes as Pleaded and working’ for the candidate, as deposed, since what counts is the evidence.  A break  down  of the sub-section yields  the  following  com- ponents :               (i)   An  offer  or promise by  the  candidate               etc., of gratification to any person,               (ii)  The   object   must   be   directly   or               indirectly to induce an elector to vote or not               to vote at an election. The  purpose of the provision is to ensure poll  purity  and exclusion  of  pollution  by  money  power.   All  elections involve  expenses  and that is why s. 77 sets a  ceiling  on such  expenses  and impliedly  contemplates  expenditure  on election work.  Such lay-out of money may be for  legitimate items.  Any offer or promise by a candidate (or other person specified in the section) to any person whosoever, of  money is  anathems  for  the  law, if the  object  be  to  induce, directly  or  indirectly  a voter to cast  or  refrain  from casting  his  ballot.   Here  there  is  the  offer  by  the candidate to a person viz., P. W. 12.  What is the  specific object  ?  To  make him work for  the  candidate,  viz.,  to persuade voters to support the paying candidate.  There is a legal  line to be drawn here, which is fine but  real.   The payment  of offer as the case may be, may be to any  person, but  it  must be linked with the object  predicated  in  the section.  If the payment is to induce an elector to vote, be it  direct or vicarious it is corrupt.  If it is  any  other

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oblique  object, it may be evil, not necessarily corrupt  in the  eye of the law.  The language of the provision  can  be stretched  wide to cover even payments to do  propaganda  or print posters or hire transport since they are calculated to induce voters to vote.  A narrow connotation is  conceivable where only payments to the voters is hit by the legal stick. A   pragmatic   construction,  inhibiting   corruption   but permitting electioneering expense is the right one, although many tricky projects may get through the legal mashes  which law cannot help and only public vigilance can arrest. Reading s. 77, dealing with the ceiling on election expenses and s.    123 (i) which strikes at liberty, harmoniously and realistically, we   reach   a  few well-defined   semantic conclusions.   To widen is to be idealists and  ineffectual. To  shrink  is  to fail in the goal of the  law.   Mr.  Garg rightly  emphasised that in the light of the  precedents  of this Court what the law aims at is a blow on the purchase of the  franchise by direct or indirect methods.  You  may  buy influence of important persons which is bad in morality  but not yet in law.  You may over-spend to create enthusiasm  to the workers which produces professional electioneers waiting for  the  season  to please candidates  and  parties.   This vitiates  the  smooth wheels of the democratic  process  but cannot  be  stanched  by the tourniquet  of  the  law.   The rulings in 125 Ghasi Ram v. Dal Singh (1) and the one at Om Prabha Jain  v. A  bnash Chand(2) have been cited at the bar and  they  make out that the vice is the bargain for the ballot and what  is obnoxious  in  the  quid  pro  qua  for  the  vote,  however accomplish. If  the candidate pays money to a V.I.P. of the locality  to use  his  good offices and canvass votes for him,  it  is  a borderline  case, but if the money is paid as  consideration for  votes promised to be secured by him using his sway,  it is  bribery even though indirectly exercised.  If the  Mulla had  been paid the money striking a bargain for getting  the votes in his ambit of influence, it is electoral corruption. On  the other hand, if it is money received for the  purpose of  organising effectively the election campaign  by  hiring workers,  going round to places in car, meeting  people  and persuading  them  to vote for the candidate,  it  is  proper election  expense.  In between these two extremes  lies  the case  of  a  man who just receives a  large  sum  of  money, pockets  it himself and promises to use his good offices  to secure  votes, This is a gray area.  We are not called  upon to  pronounce on it in this case.  We have no doubt  that  a mammoth  election  campaign  cannot be  carried  on  without engaging  a number of workers of a hierarchical sort.   Many of them may be man commanding influence through goodwill  in the locality.  Some of them may be village V.I.Ps. social or religious,  our  country being still feudal  in  many  rural areas.   The  touchstone in all these cases  of  payment  or gratification  is to, find out whether the money is paid  in reasonable  measure  for work to be done or services  to  be rendered.  Secondly, whether the services so offered  amount to a bargain for getting votes or merely to do propaganda or to persuade voters to vote for the candidate, it being  left to the voters not to respond to the election.  It is a plain case if a voter is paid for his vote.  It is direct.  It  is equally plain if the payment is made to a close relation  as inducement for the vote.  The same is the case if it is paid to  a  local  chief on the understanding that  he  will  get polled the votes in his pocket borough, in consideration for the  payment.   The crucial point is the nexus  between  the

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gratification and the votes, one being the consideration for the  other, direct or indirect.  Such being the contours  of the  corrupt practice of bribery, let us consider the  facts of the case bearing on this question. The  allegations are that the appellant and RW 33 called  PW 12  the  Mulla  to  the house of RW 33  at  Dhing  Bazar  on February  18,  1972  and  offered to  pay  Rs.  2,000/-  for collecting  votes.   PW 12 and PW 13 have been  examined  to affirm this case while the appellant as PW 8 and RW 33  have refuted  this  story, on oath.  The  version  is  inherently improbable as it is unlikely that such a corrupt offer would be  made  to a comparative stranger by one  conversant  with election proprieties.  It is particularly noteworthy that RW 33  has no special influence over this Mulla and  his  house need not have been the venue for the offer of bribe.   Sahed Ali, P. W. 13 is also not shown to have any closeness to  PW 12  and why he should get mixed up with this matter  is  not easily understandable.  PW 12 has sworn that he had  neither worked nor canvassed for any candidate at (1)  [1963] 3 S.C. R.102,110. (2) [1968]3 S.C. R.111, 116. 126 any  time and could not have been therefore  pressured  this time by the appellant who is likely to know the implications of  this dangerous move himself being an  Advocate.   Before tile  poll, P. W. 12 did not mention this matter  to  anyone but  it  was divulged only a fortnight after  the  election. The  graphic description of the appellant not producing  the cash along with the offer but suggestively opening his  long cost  without showing the money is more dramatic than  true. P.  W.  13 who corroborates in part the Mulla  also  is  too virtue  to  prevail  upon  Jabbar Munshi  to  work  for  the appellant, as requested by the latter, as his evidence runs. This witness would say that the occurrence was around  10-30 a.m.,  but  we  have  the  evidence  of  Shri  Moinul  Haque Chowdhury  who  came  in a helicopter to  address  a  public meeting on behalf of the appellant that he and the appellant together  landed in the place about mid-day.  If really  the appellant was keen on hiring the services of the Mulla at  a fancy price he would have put more pressure on PW 13 than is discernible in the dicerent answer of the witness :               "Respondent  No. 1 asked me this much  that  I               should  previal upon Jabbar Munshi  to  accept               the money and work for him.  He did not ask me               anything  more though be told me that  he  had               offered, Rs. 2,000/- to Jabbar." In  this  context  it must be stated that  in  the  original election  petition the source of information  regarding  the allegation contained in section C of Part I that bribery  of Rs.  2,000/- was not mentioned.  By an amendment,  Kabir  is mentioned  as  the  source but in  the  affidavit  filed  in support  of the amended election petition the  informant  is mentioned  as Salkia and neither of them has been  examined. Nor  are-we  told  how they came to know  about  the  secret offer.   The  overall view of the evidence bearing  on  this aspect leaves us in grave doubt as to whether the Mulla  had met  the  appellant at all.  We have already held  that  the facts  as spoken to by the former, even if true do not  come within the relevant clause [s. 123(1)]. The  evidence  is  purely  parol,  the  accusation  one   of reprehensible corruption and so, however attractive an offer of payment to a Mulla for Muslim voters being influenced may appear  to be, the court has to be circumspect to a  degree. In  our  country where marshy areas of  religious  fanticism survive into late twentieth century politics and candidates, regardless of secular and even revolutionary faiths, succumb

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to  methods  of vote-catching inconsistent  with  democratic scruples, approaching Mullas, priests and pujaris may not be unfamiliar.  But this vicious proclivity cannot be  combated by courts except when (a) clinching proof is adduced and (b) the facts come within the clutches of the legal  definition. After all, poll purity is preserved not by law alone but  by a critical electoral climate. The  mere  word of the Mulla, denied by  the  appellant,  is altogether   insufficient   to   bring   home   the   guilt, corroborated though it is by P. W. 13. Summing  up  our conclusions, we hold none  of  the  grounds pressed have been proved to the point of judicial certitude. All that 127 judges, fallible instruments, and cacooned by the record can hold  in  all  conscience  is  that  by  human  insight  and judicialised  procedures, with all the limitations  they  in practice imply, the truth is what our lights tell us it  is, no more. The  appeal is allowed and the election  petition  dismissed with costs throughout. V.P.S.                          Appeal allowed. 128