12 February 1964
Supreme Court


Case number: Appeal (civil) 936 of 1963






DATE OF JUDGMENT: 12/02/1964


CITATION:  1965 AIR  183            1964 SCR  (6) 750  CITATOR INFO :  R          1965 SC 669  (5,9)  E&R        1970 SC2097  (319)  F          1971 SC 856  (7)  R          1971 SC1295  (14)

ACT: Elections-Advocating  the  cause of  a  certain  language-If amounts to a corrupt practice-Using ’Om Dhwar-if amounts  to a  corrupt practice-Representation of the People  Act,  1951 (Act 43 of 1951), s. 123 (3).

HEADNOTE: The  appellant  was  declared elected to the  House  of  the People  from a parliamentary constituency.   The  respondent No. 1 challenged the election of the appellant on the ground that the appellant, his election and other agents  committed many  corrupt  practices  falling  within  s.  123  of   the Representation of the People Act, 1951.  The main  grievance of respondent No.  was that the appellant and his agents had made appeals to the electorate to vote for him or to refrain from voting for Daulta (Respondent No. 1) "on the ground  of his  religion and language", and that the appellant and  his agents  use a religious symbol-a flag called "Om  Dhwaj"  in all  the election meetings.  The case of the  appellant  was that the flag was not a religious symbol and denied that  it was used on any occasion by him or his agents and  submitted that  it  was  used  only  by  one  person  who  was  always accustomed to carry it on his motor car.  The appellant also pleaded  that an appeal to the electorate on the  ground  of language  or religion did not amount to a  corrupt  practice within the meaning of s. 123 of the Act. The  Tribunal dismissed the election petition of  respondent No. I but the High Court allowed the appeal and declared the election  of  the appellant void under s. 100(1)(b)  of  the Act.  Hence the appeal. Held  (i) The use of or appeal to the national or  religious symbols  to  be  a  corrupt practice must  be  made  by  the candidate  or  his election agent, or by some  other  person with  the  consent of the candidate or his  election  agent,



before  it  can be regarded as a ground  for  declaring  the election void. (ii) ’Om’is regarded by Hindus as having high spiritual  or mystical  efficacy:it  is used at the  commencement  of  the recitations  of  religious prayers.  But  the  attribute  of spiritual  significance will not necessarily impart  to  its use on a flag the character of a religious symbol within the meaning  of  s.  123.  A symbol  stands  for  or  represents something  material or abstract.  To be a religious  symbol, there must be a visible representation of a thing or concept which  is  religious.  To ’Om’ high  spiritual  or  mystical efficacy is undoubtedly ascribed, but its use on 751 a  flag does not symbolise religion or  anything  religious. The  High  ’Court errd in holding that the ’Om’ flag  was  a religious symbol and its use in an election comes within the purview of cl. (3) of s. 123 of the Act. (iii)Clause  (3) of s. 123 of the Act must be  read  in the  light of the fundamental right which is  guaranteed  by Art. 29(1) of the Constitution; the clause cannot be read as trespassing upon The fundamental right under Art. 29(1). Article  29(1) of the Constitution has conferred the  Tight, among  others, to conserve their language upon the  citizens of  India.  Right to conserve the language of  the  citizens includes  the  right  to  agitate  for  protection  of   the language.   Political  agitation  for  conservation  of  the language  of a section of the citizens cannot  therefore  be regarded  a  a  corrupt practice within the  meaning  of  s. 123(3) of the Act. Jamuna  Prasad  Mukhariya and Ors. v. Lachhi Ram  and  Ors., [1955]1 S.C.R. 608, distinguished. (iv)The  corrupt practice defined by cl. (3) of s.  123  is committed  when an appeal is made either to vote or  refrain from voting on the ground of a candidate’s language.  It  is the  appeal  to the electorate on a ground personal  to  the candidate relating to his language which attracts the ban of s.  100 read with s. 123(3).  Therefore it is only when  the electors  are  asked to vote or not to vote because  of  the particular language of the candidate that a corrupt practice may  be  ,deemed  to  be  committed.   Where,  however,  for conservation of language of the electorate appeals are  made to the electorate and promises are given that steps would be taken  to conserve that language, making of such appeals  or promises will not amount to a corrupt practice.

JUDGMENT: ClVIL, APPELLATE JURISDICTION: Civil Appeal No. 936 of 1963, Appeal  from the judgment and order dated May 31,  1963,  of the Punjab High Court in First Appeal from Order No. 2/3  of 1963. Purshotham Trikamdas, Rajinder Nath Mittal , R. B. Datar, V. Kumar.  B. P. Singh and Naunit Lal, for the appellant. G.S.  Pathak,  Bawa  Shiv  Charan  Singh,  Hardev  Singh, Rajendra Dhawan, Anand Prakash and Y. Kumar, for  respondent No. 1. 752 February 12, 1964.  The Judgment of the Court was, delivered by:- SHAH, J.-At the general elections held in February 1962 five candidates contested the election to the House of the People from  the Jhajjar parliamentary constituency.   On  February 27,  1962 the appellant Jagdev Singh Sidhanti  was  declared elected.  Pratap Singh Daulta who was one of the  candidates



at  the  election then filed a petition  with  the  Election Commission  praying,  inter alia, that the election  of  the appellant   be  declared  void  on  the  ground   that   the appellant-Sidhanti-his  agents, and other persons  with  his consent,.   had  committed  certain  corrupt  practices   in connection  with  the  election.   Daulta  stated  that  the appellant Sidhanti was set up as a candidate to contest  the election  by the Harding Lok Samiti, that the appellant  and six  other  persons-Piare Lal Bhajnik, Ch.  Badlu  Ram,  Pt. Budh  Dev,  Prof.   Sher Singh,  Mahashe  Bharat  Singh  and Achilles Bhagwan Dev who were leaders and active workers  of the  Gurukul  Section  of the Arya  Samaj  had  organised  a political movement called "the Hindi agitation" in 1957  the real  object of which was to promote feelings of enmity  and hatred  between  the Sikh and the Hindu communities  in  the State of Punjab " on the ground of religion and language" to promote their prospects in the general elections to be  held in  1962.  and for that purpose they held  meetings  in  the Hariana region of the Punjab and appealed to the  electorate to  vote  for Sidhanti ’on the ground of  his  religion  and language".  and  used a religious symbol-a flag  called  "Om Dhwaj"  in, all these meetings, that the  appellant  himself made similar appeals to the electorate and appealed to  them to  refrain from voting for Daulta who was a sitting  member of  the House-of the, People from the  constituency  stating that  he-Daulta--was an enemy of the Arya Samaj and  of  the Hindi  language, that during the election  campaign  fifteen meetings  were held between December 10, 1961- and  February 18, 1962 and at all these meetings appeals were made to  the electorate  on  the  ground  of  religion  and  language  of Sidhanti,  and  attempts were made to, promote  feelings  of enmity  and hatred between  Sikhs’and Hindus of the  Punjab. Allegations  about  undue  influence on the  voters  in  the exercise of their free electoral right were also made in the petition, and details of these 753 alleged  corrupt  practices were furnished in  the  schedule annexed to the petition. Sidhanti  denied that the six persons who were named as  his agents and supporters ever acted as his agents in his  elec- tion campaign and submitted that they were merely interested in  the success of the candidates set up by the Hariana  Lok Samiti  and  acted throughout "on their own and not  as  his agents".  He also submitted that the Hariana Lok Samiti  had no  connection  with the Arya Samaj, it  being  a  political organization started by Prof.  Sher Singh who was an  impor- tant  political  leader  in the  Hariana  region.   Sidhanti admitted,  that  he  had participated  in  the  meetings  to canvass  votes, but claimed that he was not responsible  for convening the meetings or for the speeches made by others in those meetings, that the Om flag was not a religious  symbol and  denied that it was used on any occasion by him  or  his agents  or the six persons named by Daulta in his  petition, except  Bhagwan  Dev  who  was  accustomed  "throughout  his career"  to  carry  a pennant with "Om"  and  his  own  name inscribed thereon on his motor vehicle, but carrying of such a  flag  or  pennant on Bhagwan  Dev’s  vehicle  during  the election  was not with his (Sidhanti’s) consent and that  it did  not  amount  to commission of  a  corrupt  practice  as defined in the Act, that the residents of Hariana area  were mainly Hindi-speaking, but the Government of Punjab had made Punjabi language in Gurmukhi script a compulsory subject  at various  levels of school education and this gave rise to  a wide-spread agitation against the policy of the  Government, that  to  resist the implementation of the  policy  and  the



programme of the Government in the administrative,  economic and  developmental spheres and to mitigate the hardships  of the residents of the Hariana region and to secure redress of their grievances the Hariana Lok Samiti was formed., and  an appeal  to  the  electorate  to secure  a  reversal  of  the policies  and  programme of the Government was not.  it  was submitted,  an appeal on the ground of language or  religion and did not amount to a corrupt practice within the  meaning of s. 123 of the Representation of the People Act, 1951. The Tribunal held, inter alia, that the "Om flag" was not  a "religious  symbol" of the Arya Samaj, that no  satisfactory proof was adduced that Om flag had been used as a 134-159 S.C.-48 754 symbol of Arya Samaj or that an appeal to secure votes  with the  aid of the flag was made to the electorate by  Sidhanti or  by  any  one else with his consent, that  there  was  no satisfactory evidence to establish that appeals were made to the  electorate  to  vote for Sidhanti or  to  refrain  from voting for the other candidates on the ground of religion or language, and that the applicant Daulta failed to prove that an  appeal on the ground of caste, community or religion  or language  had  been made to the electorate  to  further  the prospects  of  Sidhanti  or  to  prejudicially  affect   the election  of  the other candidates.  On these  and  findings recorded  on other issues not material in this  appeal,  the petition  filed  by  Daulta was dismissed  by  the  Election Tribunal. Daulta  prefered  an appeal against that order to  the  High Court  of Judicature for Punjab.  The High Court  held  that the word "Om" is a religious symbol of the Hindus in general and  of  the Hindus belonging to the section known  as  Arya Samaj   in  particular  and  that  the  flag   bearing   the inscription "Om" is a religious symbol, that "Om Dhwaj"  was flown  during the election campaign on the election  offices of  the Hariana Lok Samiti especially at Sampla and  Rohtak, that the Samiti office was used by Sidhanti for his election campaign,  that Hariana Lok Samiti was generally  using  the "Om Dhwaj" to further the prospects of its candidates,  that out  of the agents and supporters of Sidhanti "Bharat  Singh at  least once and Bhagwan Dev invariably used" the Om  flag on  their vehicles while attending the meetings convened  by the  Hariana  Lok  Samiti in  furtherance  of  the  election campaign  of Sidhantn. that the Om flag was flying  "on  the pandal  of the meeting" held at Majra Dubaldhan  on  January 19,  1962  when  Sidhanti  and  his  agents  and  supporters delivered  speeches in support of the election campaign  and that  at the meeting held at Rohtak town, Piare Lal  Bhajnik sang  a  song in the presence of Sidhanti,  the  purport  of which  was that the honour of the Om flag should be  upheld, that  Bhagwan Dev was using the Om flag with the consent  of Sidhanti  and  that  Pare Lal Bhajnik  at  the  Rohtak  town meeting also sang the son in honour of the Om flag with  the consent  of Sidhanti.  The High Court further held that  the appellant  had delivered speeches at Majra Dubaldhan in  the pandal  on  which the Om flag was flying, that  as  even  an isolated act of the use 755 of  or  appeal  to  the Om flag  may  constitute  a  corrupt practice  under s. 123(3) that corrupt practice by  Sidhanti and  his agents and by his supporters with his  consent  was established.   The  High Court also held that  Sidhanti  bad appealed  for  votes on the ground of his language  and  had asked  the electorate to refrain from voting for  Daulta  on the  ground of the language of the latter, and such  appeals



constituted a corrupt practice.  The High Court  accordingly allowed  the  appeal and declared the election  of  Sidhanti void  under  s. 100 (1) (b) of the Act.  Against  the  order this  appeal  is preferred with certificate granted  by  the High Court. Two  principal questions which survive for determination  in this appeal are:               (1)   Whether  a religious symbol was used  in               the  course of election by the appellant,  his               agents  or other persons with his  consent  in               furtherance of the prospects of his  election;               and               (2)   Whether   appeals  were  made   to   the               electorate  by Sidhanti, his agents  or  other               persons with his consent to vote in his favour               on account of his language and to refrain from               voting  in favour of Daulta on the  ground  of               his language. In  order to appreciate the plea raised by counsel  for  the parties  and their beating on the evidence it may be  useful to  refer to the political background in the Hariana  region and  the  constituency  in  particular,  in  which   corrupt practices are alleged to have been committed.  The territory of  the  State  of Punjab is divided  into  two  regions-the ’Hindi-speaking  region’ and the  Tunjabi-speaking  region’. The  Hindi-speaking  region  is very  largely  populated  by Hindus, while in the Punjabi-speaking region the  population is  approximately  equally divided between  the  Hindus  and Sikhs.  In the Punjab before the partition, Urdu and English were  the  ’two official languages.  After the  partition  a controversy   about  the  official  language   arose.    The Government of Punjab decided to replace Urdu and English  by Hindi  in  the  Hindi-speaking region  and  Punjabi  in  the Punjabi-speaking  region,  and  for that  purpose  a  scheme called the ’Sachar formula’ was devised, the salient feature of  which  was  that every student  reading  in  the  Punjab schools, by the time he passed 756 his  matriculation examination should be proficient both  in Hindi and Punjabi.  Under the scheme two Regional Committees were  formed-one known, as the Hindi Regional Committee  and the  other the Punjabi Regional Committee.  The function  of the Committees was to advise the local Government in matters of  finance  and  other related matters.   There  was  great resentment against the formation of the Regional  Committees and the implementation of the Sachar formula which  resulted in the launching of a movement called "the Hindi agitation". The agitation against the language policy of the  Government gained strength and there was a great mass movement in  1957 in the entire State of Punjab.  In the last week of December 1957  there was a settlement between the organisers  of  the movement  and  the  State Government and  the  movement  was called off.  It appears that some of the leading figures  in this  agitation attempted to make political capital  out  of this  movement and set themselves up as probable  candidates for the next election. In  the  Arya  Samaj  in the  Punjab  there  are  two  major sections,  one  called the ’Gurukul Section’ and  the  other called the ’College Section’.  The Gurukul Section is  again divided  into  the Hariana Section and the  Mahashe  Krishna Section.   It is the case of Daulta that it is  the  Gurukul Section  of the Araya Samaj relying upon the  religious  and linguistic  differences which sought to make at the time  of the  election,  appeals to religions and  use  of  religious symbols.   As we have already observed.   Daulta  challenged



the  election on the ground that Sidhanti, his election  and other  agents committed many corrupt practices.  Before  the Tribunal  he  restricted his case to the  corrupt  practices falling  within  cls.  (2). (3) and (3A) of s.  123  of  the Representation  of the People Act 1951.  His plea  of  undue influence falling within cl. (2) failed before the  Tribunal and  also before the High Court, and it has not been  relied upon  before  us.   Similarly his plea  that  Sidhanti,  his election  and  other  agents had promoted  or  attempted  to promote,  feelings  of enmity or  hatred  between  different classes  of citizens of India on grounds of religion,  race, caste, community, or language was negatived by the  Tribunal and also by the High Court and that plea also does not  fall to be determined by us.  Daulta had also alleged                             757 that  appeals  were made by Sidhanti and  his  election  and other  agents, to the electorate to vote for him or  refrain from  voting  for Daulta on the  ground  of  his-Sidhanti’s- religion and language and that Sidhanti and his agents  used and  appealed to religious symbols such as the Om  flag  for the furtherance of the prospects of the election of Sidhanti and for prejudicially affecting the election of Daulta.   It is  on  this last question about the use of  and  appeal  to religious  symbols  and appeal to the language  of  the  two candidates  for  the  furtherance of the  prospects  of  the election  of Sidhanti that the Tribunal and the  High  Court have differed. It may be useful to refer to the relevant provisions of  the Act,  before dealing with the matters in  dispute.   Section 100(1)  sets  out the grounds on which an  election  may  be declared void.  In so far as that section is material in the present appeal, it provides:               "Subject to the provisions of sub-section  (2)               if the               Tribunal is of opinion.-               (a) *  *  *  *  *               (b)   that  any  corrupt  practice  has   been               committed   by  returned  candidate   or   his               election agent or by any other person with the               consent   of  a  returned  candidate  or   his               election agent;               (c) *  *  *  * *               (d)  *  *  *  *  *               the Tribunal shall declare the election of the               returned candidate to be void." By sub-s. (2) if in the opinion of the Tribunal. a  returned candidate  has  been  guilty by an  agent,  other  than  his election agent, of any corrupt practice but the Tribunal  is satisfied               (a)   that   no  such  corrupt  practice   was               committed at the election by the candidate  or               his  election  agent, and every  such  corrupt               practice was committed contrary to the  orders               and  without the consent of the  candidate  or               his election agent-,               (b)  *  *  *  *  *  *               (c)   that  the  candidate  and  his  election               agent took all reasonable means for preventing               the  commission  of corrupt  practice  at  the               election; and               758               (d)   that in all other respects the  election               was free from any corrupt practice on the part               of the candidate or any of his agent, the  Tribunal may decide that the election of  the  returned



candidate  is not void.  Section 123 sets out what shall  be deemed  to be corrupt practices for the purpose of the  Act. Clause  (3)  as amended by Act 40 of 1961,  which  alone  is material in this appeal, provides:               "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, 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  clause  falls  into  two  parts  (i)  an  appeal  by  a candidate,  his agents or by other persons 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; and (ii)  use  of  or appeal  to religious symbols, national symbols  or  national emblems for the furtherance of the prospects of the election of the candidate or for prejudicially affecting the election of  any  candidate.   The first part in  terms  makes  it  a condition  that  the appeal is made by a  candidate  or  his agent or any other person with the consent of the  candidate or  his agent.  There is no reference in the second part  to the  person by whom the use of, or appeal to, the  religious or  the national symbols, such as the national flag  or  the national  emblem  may be made, if such use of or  appeal  to them has been made to further the prospects of the  election of the candidate or to prejudicially affect the election  of any  candidate.   But it is implicit in  s.  123(3),  having regard to the terms of s. 100, that the use of or appeal  to the  national  or  religious symbols must  be  made  by  the candidate of his election agent or by some other person with the  consent of the candidate or his election agent,  before it  can be regarded as a ground for declaring  the  election void.  If the evidence on the record fails to establish                             759 the responsibility for the use of or appeal to the religious or  national  symbols by the returned candidate  or  by  his election  agent or by any other person with his  consent  or his election agent, no ground for setting aside the election may be deemed to be made out. The  first question to which we must then turn  is,  whether the "Om flag" can be regarded as a "religious symbol" within the meaning of s. 123 (3).  This question has to be examined in  two branches-(i) whether the word "Om" has  any  special religious significance, and, (ii) whether the use of "Om" on a  flag  or  pennant makes it a religious  symbol.   If  the respondent  Daulta  establishes  that the  "Om  flag"  is  a religious symbol, the question will arise whether the use of or  appeal to the Om flag was made in the election  campaign for  furtherance  of  his prospects by Sidhanti  or  by  his agents  or other persons with his consent or the consent  of his election agent, The expression "Om" is respected by the Hindus generally and has  a special significance in the Hindu scriptures.  It  is recited  at  the commencement of the  recitations  of  Hindu religious  works.   Macdonell in his  A  Practical  Sanskrit Dictionary  states that "Om" is the sacred syllable used  in invocations, at the commencement of prayers, at the  beginn- ing  and  the end of Vedic recitation, and as  a  respectful salutation:  it is a subject of many mystical  speculations.



In  the Sanskrit-English Dictionary by Monier-William it  is said that "Om" is a sacred exclamation which may be  uttered at  the  beginning  and end of a reading  of  the  Vedas  or Previously to any prayer; it is also regarded as a  particle of  auspicious  salutation.  But it is difficult  to  regard "Om"  which  is  a  preliminary  to  an  incantation  or  to religious  books as having religious significance.  "Om"  it may  be  admitted is regarded as having  high  spiritual  or mystical  efficacy:  it is used at the commencement  of  the recitations  of  religious prayers.  But  the  attribute  of spiritual  significance will not necessarily impart  to  its use  on  a flag the character of a religious symbol  in  the context  in which the expression religious symbol occurs  in the  section with which we are concerned.  A  symbol  stands for or represents something material or abstract.  In  order to be a religious symbol, there must be a visible 760 representation of a thing or concept which is religious.  To ’Om’  high  spiritual or mystical  efficacy  is  undoubtedly ascribed; but its use on a flag does not symbolise religion, or anything religious. It is not easy therefore to see how the Om flag which merely is a pennant on which is printed the word ’Om’ can be called a  religious symbol.  But assuming that the Om flag  may  be regarded  as a religious symbol, the evidence on the  record is  not  sufficient  to  establish  that  by  Sidhanti,  his election agents or any other person with his consent or  the consent  of  his  election  agent,  Om  flag  was  used   or exhibited,  or an appeal was made by the use of the Om  flag to further the prospects of Sidhanti at the election. It  may  be  remembered that in the  trial  of  an  election petition,  the  burden  of proving that the  election  of  a successful  candidate is liable to be set aside on the  plea that  he was responsible directly or through his agents  for corrupt  practices  at the election, lies heavily  upon  the applicant   to  establish  his  case,  and  unless   it   is established in both its branches i.e. the commission of acts which the law regards as corrupt, and the responsibility  of the  successful candidate directly or through his agents  or with his consent for its practice not by mere  preponderance of  probability, but by cogent and reliable evidence  beyond any reasonable doubt, the petition must fail.  The  evidence may  be  examined bearing this approach to the  evidence  in mind. Between  the  months of December 10, 1961 and  February  18, 1962,  fourteen meetings were held in the constituency as  a part  of the election campaign of Sidhnti.   These  meetings were held at Beri, Barhana, Dighal, Akheri Madanpur, Sampla, Ladpur, Majra Dubaldhan, Pakasma, Assaudha.  Jhajjar,  Badli Dulehra,  Sisana and Bahadurgarh.  There was, it is  claimed by  the applicant, one more meeting on February 4, 1962,  at Rohtak town which is outside the Jhajjar constituency.   The Tribunal held that the evidence was not sufficient to  prove that  in  the  meetings at Beri,  Barhana,  Dighal,  Sampla, Ladpur, Pakasma.  Assaudha, Jhajjar, Badli, Dulehra,  Sisana and  Bahadurgarh ’Om’ flag was exhibited in  furtherance  of the  election prospects of Sidhanti and with that  view  the High Court has agreed.  The Tribunal                             761 also held that there was no reliable evidence that at  Majra Dubaldhan  on  January  19,  1962, and  at  Rohtak  town  on February 4, 1962, ’Om’ flag was used as a religious  symbol. On this part of the case, however, the High Court  disagreed with the Tribunal.  Rohtak town was not, but Rohtak suburban area  was,  within  the constituency  in  which  Daulta  and



Sidhanti  were contesting the election.  Therefore the  only meeting  which  took  place within  the  constituency  where Sidney and Daulta contested the election in which  according to  the  High  Court  the Om flag  was  used  was  at  Majra Dubaldhan held on January 19, 1962.  Six witnesses  directly spoke  about the details of that meeting,  beside  Sidhanti. Sidhanti said generally that the evidence given by the  wit- nesses for Daulta regarding what transpired at Maira  Dubal- dhan  and three other meetings was not true.  The  witnesses for  Daulta were Roop Ram.  Sukhi Ram and Ramdhari  Balmiki. The  witnesses who supported the case of the appellant  were Piare  Lal,  Prof.   Sher  Singh and Jug  Lal.   It  may  be observed  that  the High Court placed no reliance  upon  the testimony  of  Ramdhari Balmiki and no arguments  have  been advanced  before us suggesting that his testimony was  reli- able.   Roop Ram-a police constable-has deposed  that  about mid-day  on  January 19, 1962, a meeting was held  at  Majra Dubaldhan  and that at that meeting Piare Lal sang a  bhajan about  the  Om  flag and he saw the Om flag  flying  on  the pandal  of  the meeting which was attended by four  to  five thousand persons.  According to the witness Nanhu Ram, Badlu Ram,  Jagdev Singh Sidhanti, Bhagwan Dev, Ramdhani  Balmiki, Attar Singh, Prof.  Sher Singh and Acharya Bhagwan Dev  made speeches,  that  Acharya Bhagwan Dev in the  course  of  his speech  asked people not to vote for Daulta but to vote  for the  candidate who was seeking election on the  Hariana  Lok Samiti ticket.  In cross-examination he admitted that he had been supplied with a copy of the report which he had made to the D.I.G., C.I.D., Chandigarh, and that he had gone through the report two or three times, before he gave evidence.  The Tribunal  refused  to place reliance upon the  testimony  of this witness and of another police constable Ganesh Dass who claimed  to have remained present in the  various  political meetings.  It appears that the witness had memorised the so- called  reports  and  the same were not  made  available  to counsel for Sidhanti 762 to  challenge the truth of the statements made by  the  wit- nesses.   The High Court has not given any adequate  reasons for  accepting  the  testimony  of  the  witness,  when  the Tribunal  which  had opportunity of seeing the  witness  and noting his demeanour had refused to accept the testimony. Sukhi  Ram  deposed  that he was  a  sarpanch  of  Dubaldhan Panchayat  for about two years, and that he was  present  at the  meeting convened by the Hariana Lok Samiti  on  January 19, 1962, for canvassing votes for the candidates of Hariana Lok  Samiti, that Prof.  Sher Singh and Sidhanti came  in  a jeep  on  which there was flying flag  with  ’Om’  inscribed thereon,  that he saw several other vehicles flying  the  Om flag  and that the vehicle in which he went to  the  meeting also was carrying the Om flag.  The Tribunal was of the view that  the  facts elicited in the cross-examination  of  this witness disclosed that his recollection about other meetings which  he  had attended was poor, whereas  his  recollection about  the meeting held at Majra Dubaldhan was  very  clear, and  that  the reasons given by the  witness  for  specially remembering the details of the proceedings of the meeting in Majra  Dubaldhan  and  not of other meetings  could  not  be accepted.   In  the  view of the Tribunal  the  witness  was interested  in Daulta, and this inference was  supported  by the  fact  that Daulta had sent him a copy of  his  election petition  before  it  was even  presented  to  the  Election Commission.  It also appears that the evidence given by this witness  was  inconsistent with the summary of  the  meeting given  in  Sch.   ’D’ to the petition and  for  this  reason



according to the Tribunal the testimony of the witness  "did not carry conviction" and "it was not safe to rely upon it". The High Court after summarising the effect of the  evidence observed that it did not appear from the deposition given by the witness that he was in any manner interested in  Daulta. In so observing the High Court appears unfortunately to have lost sight of the grounds given by the Tribunal. Witness Piare Lal stated that he was present at the  meeting held  at  Majra  Dubaldhan and that  none  of  the  speakers suggested  that  the electors should vote on the  ground  of caste, creed, religion or language.  He also stated that at                             763 none of the meetings there was any Om flag either inside  or outside  the pandal of the meetings.  Prof.  Sher Singh  who was  another witness examined on behalf of Sidhanti  deposed that slogans shouted in the meetings were political  slogans and that he did not see Om flags in any pandal of the  meet- ings, and that he ’had instructed all the candidates and the members  of  the Hariana Lok Samiti not to use any  flag  or symbol  other  than the symbol allotted to them.   Jug  Lal, another witness examined on behalf of Sidhanti, stated  that at the meeting at Majra Dubaldhan on January 19, 1962, there were  no  Om  flags to be seen  anywhere  either  inside  or outside  the meeting and that there were no Om flags  flying on  any  of the vehicles.  The testimony  of  the  witnesses Piare  Lal, Prof.  Sher Singh and Jug Lal was  discarded  by the  High  Court, because in their view the  witnesses  were interested  in  Sidhanti.   Even  if  this  view  about  the evidence of these three witnesses is accepted, the  evidence led  on  behalf of Daulta of witnesses Sukhi  Ram,  Ramdhari Balmiki  is  wholly unreliable and the testimony  of  police constable  Roop Ram is also not such that implicit  reliance can  be placed upon it.  We are unable, therefore, to  agree with the High Court in the conclusion it has reached that it had  been  proved satisfactorily that Om flag was  flown  at Majra   Dubaldhan  where  Sidhanti  and   other-.   speakers delivered speeches in furtherance of the election campaign. The  only  other meeting at which it is found  by  the  High Court  that  the Om flag was used in the meeting  at  Rohtak town  on February 4, 1962, which town, it is common  ground, is  not within the Jhajjar parliamentary  constituency  from which Sidhanti and Daulta were contesting the election.   It is,  however, said that Rohtak suburban area is  within  the Jhajjar  parliamentary constituency and a& there is a  grain market in Rohtak town and a large number of voters from  the Jhajjar  constituency  assemble in that town a  meeting  was held  by  Sidhanti  in which Om flag  were  exhibited.   The witnesses  in  support of the case of Daulta  are  Ram  Nath Sapra, Dafedar Singh, K. K. Katyal and Satyavrat Bedi.   The principal witnesses who were examined by Sidhanti in respect of  this  meeting were Piare Lal, Bharat  Singh,  Budh  Dev, Prof.  Sher Singh and Bhagwan Dev. 764 Ram Nath Sapra who is a correspondent of several  newspapers deposed  that he had attended the meeting at Rohtak town  at Anai  Mandi  10  or  12  days  before  the  actual  polling. According  to the witness there was a big  procession  taken out  before  the meeting which carried flags either  of  the symbol  of  the ’Rising Sun’ or of ’Om’, that  he  had  made reports about the proceedings of the Rohtak meeting and  had sent the report of the same to all the five papers of  which he was the correspondent.  The Tribunal was of the view that the testimony of the witness was unreliable, because he  did not  remember the details of any. other meeting convened  by the  other  parties, and that he could not speak  about  the



names of the speakers who took part in the meeting  convened by  the  Hariana Lok Samiti.  The testimony of  the  witness therefore  was  "far from convincing" and the  testimony  of Sidhanti,  Piare  Lal, Bharat Singh, Budh Dev,  Prof.   Sher Singh  and Bhagwan Dev was more reliable.  In coming to  the conclusion  that the evidence of the witness was  unreliable the  Tribunal  referred to the details given  in  Sch.   ’D’ annexed  to the petition under the heading ’Summary  of  the meetings’  and  observed that the summary was  at  "complete variance" with the testimony of the witness.  The High Court was  of  the  view that the witness Ram  Sapra  was  "wholly disinterested" and therefore his evidence must be  accepted. The High Court did not refer to the infirmities disclosed in the testimony of the witness, particularly the discrepancies between  the  statement of Daulta in his  petition  and  the testimony given by this witness. Witness Dafedar Singh who is a police constable said that he had  been  deputed to report about the  proceedings  of  the meeting.  His version is also different from the version  as given in Sch.  ’D’ annexed to the petition.  The High  Court has not referred to the testimony of this witness in support of its conclusion and nothing more need be said about him. K.K.  Katyal  said that he had attended  the  meeting  at Rohtak  town  as a special correspondent  of  the  Hindustan Times,  Delhi  and  that he recollected that  flags  with  a symbol of ’Om’ inscribed thereon were seen flying on some 765 vehicles  but it was not possible for him to say  who  owned those  vehicles, but from the flags and placards carried  on the  vehicles it appeared that they were of the Hariana  Lok Samiti.   He also deposed that he had gone to the office  of the  Hariana  Lok Samiti at Rohtak and saw  a  similar  flag flying on the building of the office.  He admitted in cross- examination that he did not visit any office of the  Hariana Lok  Samiti  either at Bahadurgarh or at Sampla as  all  his attention was confined to the central office of the  Hariana Lok Samiti at Rohtak.  He also stated that he had seen  some shopkeepers  in  Sampla and Bahadurgarh flying Om  flags  on their stalls.  In the view of the Tribunal the testimony  of this  witness  was  vague and no reliance  could  be  placed thereon.  While generally agreeing with this view,, the High Court observed that the testimony of the witness Katyal that the  Om  flag was flying at the office of  the  Hariana  Lok Samiti  at Rohtak which was the headquarters office  and  in the procession which was led by Bharat Singh a number of  Om flags were seen may be accepted. Satyavrat  Bedi  who is staff correspondent  of  the  Indian Express  stated  that  during his  survey  of  the  election campaign  he visited Sampla, Bahadurgarh and Rohtak  in  one day,  and  made  his report about his  observations  to  the newspaper  Indian  Express, in which he  had  recorded  that religious  symbols and religion were being  frequently  used for  damaging the chances of success of Daulta, that he  had seen a large number of flags fluttering on many house  tops. that  the flag on the office of the Hariana Lok  Samiti  was that of Om and the other organisations had their own  flags, that he saw the Om flag fluttering on the office of Sidhanti at Sampla but he did not remember whether there was any flag of ’Om’ at his election office at Bahadurgarh.  The Tribunal declined  to accept this testimony.  The High Court  took  a different  view  and  observed that  apart  from  any  other infirmity  regarding  the  use of the reports  made  by  the witness,  the  statement made by him about  his  observation that  he  had seen the Om flag flying on the office  of  the Hariana Lok Samiti and on the motor-vehicle of Bharat  Singh



could not be ruled out.  It must be remembered however  that we are concerned at this stage with the 766 question  whether  in the meeting at Rohtak on  February  4, 1962.   Om flags were exhibited.  On that part of  the  case the evidence of Satyavrat Bedi is not of much use. Sri  Ram Sharma was a candidate for election on behalf of  a political party called "the Hariana Front".  He deposed that he had never attended any procession or meeting organised by the  Hariana  Lok Samiti but he had seen  the  motorvehicles employed  by the Hanana Lok Sanmti carrying Om  flags  which were  used by the candidates of the Hariana Lok Samiti.   He stated  that he contributed a number of articles to  Hariana Tilak,  Rohtak, founded by him in which he had published  on January  4, 1962. an article condemning, the use of  the  Om flag for the purpose of elections.  The article published on January 4, 1962, can have no bearing on the use of the  flag at  Rohtak in the meeting dated February 4, 1962.  The  High Court did not place any reliance upon the testimony of  this witness. This  is all the evidence on behalf of Daulta to  which  our attention was invited by counsel for the parties that at the meeting  at  Rohtak  on  February 4,  1962,  Om  flags  were exhibited  and appeals were made to the flag as a  religious symbol.  Apart from the general infirmity of the  testimony, the Tribunal refused to accept the evidence of the witnesses on  the ground that their statements  considerably  departed from the summary given in Sch.  ’D’ by the petitioner Daulta himself.  In view of this inconsistency between the evidence given  in  Court and the allegations made by  the  applicant Daulta  in  the  petition,  it  would  be  difficult,  after discarding  the evidence with regard to a very large  number of meetings, to ’hold that in the meeting at Majra Dubaldhan which  was  within the constituency and in  the  meeting  at Rohtak  town  which was outside the constituency,  Om  flags were  displayed or appeals were made in the name of  the  Om flag  to further the prospects of the election of  Sidhanti. We  are, therefore, unable to agree with the  conclusion  of the  High  Court  that the Om flag  was  used  for  election purposes  at the time when election speeches were  delivered by  Sidhanti at Majra Dubaldhan or Rohtak town or  that  the Om, flag was used on the pandals at those meetings.                             767 Two other matters which have a bearing on the use of the  Om flag in the course of the election campaign by Sidhanti, and on which the High Court has relied may be referred to.   The High  Court has found that Sidhanti used the office  of  the Hariana  Lok Samiti at Rohtak town as his  election  office, but  on  this part of the case our attention  has  not  been invited  to  any definite evidence which  directly  supports this conclusion.  The High Court merely observed that it was common  ground that Sidhanti did not have any office of  his own  at  Rohtak, and inferred from  that  circumstance  that Sidhanti was using the office of the Hariana Lok Samiti  for the election campaign.  But the inference is in the face  of the  evidence not justifiable, especially when  Rohtak  town was not within the constituency. It was conceded by Sidhanti that Bhagwan Dev Sharma an  Arya Samaj  leader  had been accustomed for many  years  past  to carry on his motor-vehicle a pennant bearing the Om mark and his  name.   Witness Bhagwan Dev Sharma stated that  he  had attended  the  meetings of the Hariana Lok  Samiti  and  had addressed  them  because he agreed with their  ideology  and thought  that  the institution was for the  benefit  of  the Hindu  religion, that he had never been asked to remove  the



Om  flag  from his jeep when he reached those  meetings  and that he had not attended those meetings either on account of Prof.   Sher  Singh  or Sidhanti  but  "in  his  independent capacity as a citizen of India having a right to vote",  and that   he  approved  of  the  candidature  of  Sidhanti   in preference to that of his opponent.  But if the witness  was accustomed  to  use a pennant with Om mark on  it  for  many years past, in the absence of clear evidence to show that he was  an agent of Sidhanti or that he acted with the  consent of  Sidhanti  and made an appeal to the flag,  it  would  be difficult  to  hold from the circumstances that  during  the days of the election campaign the witness did not remove the flag from the motor-vehicle, that Sidhanti made an appeal to the  electorate by using a religious symbol to  further  his prospects  at the election.  The evidence about the user  of the Om flag by Bharat Singh when he is alleged to have taken out a procession does not appear to be reliable. 768 On a careful survey of the testimony of the witnesses we are unable  to agree with the conclusions recorded by  the  High Court that:               (a)   Sidhanti  "had  used an  office  of  the               Hariana Lok Samiti on which the "Om flag"  was               flying for election purposes and further  that               he  gave election speeches at a  pandal  where               the  Om flag was fluttering in furtherance  of               his prospects at the election";               (b)   "the  agents  and  supporters  delivered               speeches  about the "Om flag" at  the  meeting               held  at Majra Dubaldhan on January 19.  1962,               that  Piare  Lal  Bhajnik  sang  a  song,  the               purport of which was that the honour of the Om               flag should be upheld"; and               (c)   "the  Hariana Lok Samiti, the  party  to               which Sidhanti belonged, was using the Om flag               for the purpose of election campaign", and  thereby committed corrupt practices.  It is  true  that the  use of the Om flag by Bhagwan Dev on his conveyance  is admitted  but that again is for reasons already set out  not sufficient  to enable the Court to hold that it was for  the purpose of furthering the prospects of election of Sidhanti. In  considering whether appeals were made to the  electorate to  vote  for Sidhanti on the ground of his language  or  to refrain  from  voting for Daulta on the ground  of  Daulta’s language, it is necessary in the first instance to ascertain the  true  meaning of the expression "on the ground  of  his language".  By s. 123(3) which was introduced for the  first titne  in  its present form by Act 40 of 1961, appeal  by  a candidate or his agent to vote or refrain from voting for  a person on the ground of language is made a corrupt practice. This  clause  must be read in the light of  the  fundamental right which is guaranteed by Art. 29(1) of the Constitution, for  in  ascertaining  the  true  meaning  of  the   corrupt practice, the area of the fundamental right of citizen  must be  steadily kept in view.  The clause cannot be so read  as trespassing   upon  that  fundamental  right.   Art.   29(1) provides:               "Any  section of the citizens residing in  the               territory of India or any part thereof  having               a distinct                                    769               language,  script or culture of its own  shall               have the right to conserve the same." The  Constitution  has thereby conferred  the  right,  among others,  to  conserve their language upon  the  citizens  of



India.   Right  to  conserve the language  of  the  citizens includes  the  right to agitate for the  protection  of  the language.   Political  agitation  for  conservation  of  the language  of a section of the citizens cannot  therefore  be regarded  as  a corrupt practice within the  meaning  of  s. 123(3)  of  the Representation of the People Act.   That  is clear  from the phraseology used in s. 123(3) which  appears to have been deliberately and carefully chosen.  Unlike Art. 19(1),  Art.  29(1)  is  not’  subject  to  any   reasonable restrictions.  The right conferred, upon the section of  the citizens  residing  in the territory of India  or  any  part thereof  to  conserve their language, script or  culture  is made by the Constitution absolute and therefore the decision of  this  Court  in Jumuna Prasad Mukhariya  and  others  v. Lachhi Ram and others(1) on which reliance was placed by the High Court is not of much use.  In that case ss. 123(3)  and 124(5) of the Representation of the People Act as they  then stood were challenged as infringing the fundamental  freedom under Art. 19 (1) (a) of the Constitution, and the Court  in negativing  the contention held that the provisions  of  the Representation  of  the People Act did not stop a  man  from speaking:  they merely prescribed conditions which  must  be observed  if  a candidate wanted to enter  Parliament.   The right  to  stand  for an election is,  it  was  observed,  a special  right created by statute and can only be  exercised on the conditions laid down by the statute, and if a  person wants  to stand for an election he must observe  the  rules. These  observations have no relevance to the  protection  of the  fundamental  right to conserve language.   The  corrupt practice  defined by cl. (3) of s. 123 is committed when  an appeal is made either to vote or refrain from voting on  the ground  of a candidate’s language.  It is the appeal to  the electorate on a ground personal to the candidate relating to his  language which attracts the ban of s. 100 read with  s. 123(3).  Therefore it is only when the electors are asked to vote or not to vote because of the (1) [19551 1 S.C.R. 608. 134--159 S.C.-49 770 particular language of the candidate that a corrupt practice may   be  deemed  to  be  committed.   Where   however   for conservation of language of the electorate appeals are  made to the electorate and promises are given that steps would be taken  to  conserve that language, it will not amount  to  a corrupt practice. It  is in the light of these principles, the correctness  of the  findings of the High Court that Sidhanti was guilty  of the corrupt practice of appealing for votes on the ground of his  language  and  of asking the  voters  to  refrain  from voting_  for Daulta on the ground of the language of  Daulta may be examined.  The petition filed by Daulta on this  part of the case was vague.  In paragraph 1 1 of his petition  it was  averred that Sidhanti and his agents made a  systematic appeal  to  the audience to vote for  Sidhanti  and  refrain from,  voting  for  Daulta "on the ground  of  religion  and language",  and in paragraph 12 ’it was averred that in  the public meetings held to further the prospects of Sidhanti in the  election, Sidhanti and his agents had  made  systematic appeals  to the electorate to vote for him and refrain  from voting  for  Daulta  "on  the ground  of  his  religion  and language".  A bare perusal of the particulars of the corrupt practice  so set out in paragraphs 1 1 & 12 are to be  found in  Schs.  ’C’ & ’D’ clearly shows that it was the  case  of Daulta that Sidhanti had said that if the electorate  wanted to  protect their language they should vote for the  Hariana



Lok Samiti candidate.  Similar exhortations are said to have been made by the other speakers at the various meetings.  It is  stated in Sch.  ’D’ that resolutions were passed at  the meetings urging upon the Government to "abolish Punjabi from Hariana",  that  many  speakers said that  the  Hariana  Lok Samiti  will fight for Hindi for Hariana and that they  were opposed  to  the  teaching of  Punjabi  in  Hariana.   These exhortations  to the electorate to induce the Government  to change their language policy or that a political party  will agitate  for  the protection of the language spoken  by  the residents of the Hariana area do not fall within the corrupt practices  of appealing for votes on the ground of  language of the candidate or to refrain from’ voting on the ground of language of the contesting candidate. 771 Speeches  made  at political meetings  held  for  canvassing votes must be examined in the context of the atmosphere of a Political  campaign  and the passions  which  are  generally aroused in such a campaign.  In adjudging whether an  appeal is  made  to  the language of the  candidate,  a  meticulous examination  of the text of the speech in the serene  atmos- phere of the Court room picking out a word here and a phrase there to make out an offending appeal to vote for or against a  candidate  on  the  ground  of  language  would  not   be permissible.  A general and overall picture of the  speeches delivered  by  Sidhanti and other speakers  at  the  meeting disclosed  nothing more than a tale of  political  promises, exhortations  and  inducements to vote  at  the  forthcoming election for Sidhanti. It  is  not disputed that in 1957 there  was  a  wide-spread agitation in the State of Punjab against the enforcement  of the  education  policy  of the State,  incorporated  in  the "Sachar formula".  Many persons were imprisoned or  detained in  the cause of the agitation for individual acts  done  by them.   But the movement was not and could not  be  declared illegal.   It is common ground that in the Harriana  region, Hindi  is  the predominant language of the people and  if  a section  of the people thought that compelling the  students in  the  Hariana region to learn Punjabi was  not  in  their interest  and  in  the election campaign  such  a  view  was advocated  and votes were canvassed on the promise that  the candidate  if  elected  will  take  steps  to  conserve  the language  of the region, it would be difficult to hold  that appeal--as amounting to a corrupt practice.  It is open to a candidate  in  the  course  of  his  election  campaign   to criticise  the  policies  of the  Government  including  its language policy and to make promises to the electorate  that if elected he will secure a reversal of that policy or  will take  measures in the Legislature to undo the danger,  real, apprehended or even fancied, to the language of the  people. The object of the Hariana Lok Samiti was evidently to resist the  imposition  of Punjabi in the Hariana region  and  that object  appears  to  have  been made  the  platform  in  the election  campaign.  Thereby it could not be said  that  the voters  were asked not to vote for Daulta on the  ground  of his language, assuming that it was other than 772 Hindi.   Nor  can it be said that it was an  appeal  to  the voters to vote for Sidhanti on the ground of his language. The  evidence which has been referred to by the  High  Court regarding the speeches made by  Badlu Ram and Harphul  Singh on  December 10, 1961, at Beri on the face of it shows  that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs.  The speeches made at  the meetings at Sampla, Ladpur and Majra Dubaldhan  read



like political harangues addressed to the electorate to vote for  the  candidate who would protect the  language  of  the people  of Hariana.  At Bahadurgarh also Sidhanti is  stated to  have claimed that he was opposed to the  Government  and its supporter Daulta in the matter of the language movement. The  evidence also showed that Sidhanti had appealed to  the voters  to vote for him because he was  actively  associated with   the  Hindi  agitation  movement  and  that   he   was championing the cause of Hindi and’ resisting the imposition of  a  rival language Punjabi and  thereby  suggesting  that Daulta  was hostile to the cause of Hindi language  and  was supporting the Punjabi language.  The criticism by ’Sidhanti in  his  appeal to the electorate related to  the  political leanings  of  Daulta, and his support to the policy  of  the Government and wag not personally directed against him.  Nor did  Sidhanti appeal to the voters to vote in his favour  on account of his language.  Such political speeches  espousing the  cause of a particular language and making  promises  or asking  the people to protest against the Government of  the day  in  respect  of its language policy is  not  a  corrupt practice within the description of corrupt practice under s. 123(3) of the Act. We  are therefore unable to agree with the High  Court  that Sidhanti was guilty of any corrupt practice under s. 123 (3) by  appealing for votes on the ground of his language or  by asking  the voters to refrain from voting for Daulta on  the ground of his language. The appeal will therefore be allowed and the order passed by the Tribunal restored with costs in this Court and the  High Court. Appeal allowed. 773