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PETITIONER: N.   S. VARDACHARI

       Vs.

RESPONDENT: G.   VASANTRA PAI AND ANR.

DATE OF JUDGMENT21/08/1972

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. GROVER, A.N. PALEKAR, D.G.

CITATION:  1973 AIR   38            1973 SCR  (1) 886  1972 SCC  (2) 594  CITATOR INFO :  R          1992 SC  96  (14)

ACT: Representation  of the People Act (43 of 1951), s.  123  (2) and (4)-Expression of opinion that candidate not  qualified- If  amounts to undue influence under s. 123 (2)  or  corrupt practice under s. 123 (4). Election    to   Legislative   Council    from    Graduates’ constituency-If non-political. Constitution of India, 1950, Art. 171(3) (a) (b) and  (c)-If Candidate should be member of electoral college. Practice-Imposition of penal Costs.

HEADNOTE: In  1967, the first respondent and S contested for  election for  a seat in the Madras Legislative Council from the  City Graduates’ constituency, which fell vacant.  S was  declared elected  and  his  election  was  challenged  by  the  first respondent on the grounds, inter alia, that, (a) in an elec- tion  from graduates’ constituencies political parties  were not  competent.  to sponsor candidates, and S,  having  been sponsored by the Swatantra Party, was not qualified to, be a candidate;  and (b) that S was guilty of  corrupt  practices under s. 123(5) of the Representation of the People Act, 195 1. The High Court set aside the election of S on the  second ground.   On the first ground, while holding that there  was no  cvidence that S was sponsored by a political party,  the High Court observed that election to the Legislative Council from  the Graduates’ constituency was a  non-party  election and that political parties should not nominate any candidate for  that  election.  This Court, in appeal,  confirmed  the finding’  of  the High Court that S was  guilty  of  corrupt practices,  but did not at all touch on the observations  of the High Court. In  1970,  the first and second  respondents  contested  for election   to   the  Legislative  Council  from   the   same constituency, which was a two member constituency, and  they were  both declared elected.  The first respondent  objected to  the  candidature  of the second  respondent  before  the Returning  Officer, on the grounds, (1) that the High  Court had decided in the earlier election petition against S, that

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the constituency was a non-political one and that the second respondent,  having been sponsored by the  Swatantra  Party, any  votes  given to him would amount to throwing  away  the votes;  and  (2)  that  the second  respondent  was  not  a, graduate  and hence, was not qualified to be a candidate  at the election, The Returning Officer rejected the objections, but  the first respondent continued the  propaganda  against the  second respondent by publishing leaf. lets as  well  as appeals  in newspapers.  After the two respondents had  been declared   elected,  the  appellant,  an  elector   in   the constituency,  filed an election petition,  challenging  the election  of the first respondent on the ground that by  his propaganda he was guilty of corrupt practices under s.123(2) and (4). The High Court, dismissed the petition with penal costs. In appeal to this Court. 887 HELD:  (1)  A debate whether a candidate  was  qualified  to stand or whether a political party was competent to nominate candidates  for  a particular constituency cannot  be  undue influence within the meaning of s. 123(2). [891G-H] (a)  The  first respondent placed his point of  view  before the  electorate and sought support for it from the  judgment of  the High Court and the second respondent. relied upon  a press note issued by the Election Commission.  Candidates in elections  are not only entitled to raise  political  issues but can also raise social, economic and legal issues. [892A- B] (b)  The  first respondent did not make any attack.  on  the character of the    second  respondent.  The mere fact  that his contention was untenable  did not convert it into  undue influence. [89-2B, H] S.   K. Singh v. V. V. Giri,  [1971] 2 S.C.R. 197,  referred to. (2)  The  first  respondent was not guilty  of  any  corrupt practice under 123(4). [891G] (a)  His  propaganda  that  the second  respondent  was  not qualified to be a candidate was only an opinion expressed by him.   He did not make any statement of fact and an  opinion on  a  question  of  law could not be  considered  to  be  a statement of fact., The fact that the Returning Officer held that  the second respondent was qualified to be a  candidate did  not  preclude the first respondent  from  debating  the issue before the electorate. [891D-G] (b)  It could not be said that the opinion was neither  bona fide nogroundless as the contention was accepted as  correct by  the  High Court in an election  petition  filed  against second respondent, though that decision was reversed by this Court. [891E] (c)  Also,  the first respondent’s propaganda that the  High Court had held in the election petition against S, that  the graduates’  constituency  was  a  nonpolitical  constituency could  not,  be said to be a false statement,  because,  the High Court, in fact, said so. [891F-G] Guruji  Shrihar  Balirenz  Jivatode v.  Vithalrao  and  Ors, [1969] 2 S.C.R. 766, referred to. (3)  This conclusion of the High Court, that the  graduates’ constituency  was a non-political one, however,  was  wrong. [894H] In  the  form  prescribed  for  nominating  candidates   for Legislative  Assemblies  there is a  clolumn  requiring  the candidate  to  mention whether he belonged  to  a  political party,  and  if  so, to which party.  The  electors  to  the Legislative  Assembly  are by and large  illiterate  and  to facilitate the freedom of voting the symbol system had  been

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introduced.   The  symbols are of two  type,,  reserved  and free.  it was necessary for he Election Commission  to  know whether  a  candidate was a nominee of  a  political  party, because, reserved ’symbols are allotted to candidates  spon- sored by recognised political parties.  The symbol system is unnecessary  in  the elections to the  Legislative  Council, because,  the electors are generally  educated.   Therefore, the  absence  of such a column in the  form  prescribed  for nominating  candidates to the Legislative Council  does  not lead  to  the  inference that election  to  the  Legislative Council  from the Graduates’ constituency is  non-political. [894 F-H; 895 A-C] (4)  Article 171(3)(d) of the Constitution says that members of  the  Assembly  should elect, as nearly as  may  be,  1/3 members  of  the Council from amongst persons  who  are  not members of the Assembly; but no 888 such  stipulation  is  made  in the  other  clauses  of  the Article.  But from that it could not be concluded that  when elections  are  held under clauses (a),(b) and (c)  of  Art. 171(3), the person to be elected must be one who is a member of  the  electoral college in question.  The  candidate  may either  be  a member of the electoral college  or  even  an, outsider.   If  a person possesses  all  the  qualifications prescribed   in   the  Constitution  as  well  as   in   the Representation  of the People Acts and has not incurred  any of  the disqualifications mentioned therein he is  qualified to be a ,candidate. [894D-F] G.   Narayanaswami v. G. Pannerselvam and Ors.  Civil Appeal No. 189 of     1971 decided on April 12, 1972, followed. (5)  In   the  circumstances  of  this  case  here  was   no justification for imposing penal costs.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 586 of 1971. Appeal  under  section 116-A of the  Representation  of  the People Act, 1951 from the Judgment and order dated  December 15, 1970 of the Madras High Court in Election Petition No. 2 of 1970. R.   M. Sheshadri, K. C. Agarwala, E. C. Agarwala and A.  T. M. Sampath, for the appellant. S.   V.  Gupte,  S.  S.  Javali,  P.  C.  Bhartari,  J.   B. Dadachanji and Ravinder Narain, for respondent No. 1. S. S. Khanduja and Vineet Kumar, for respondent No. 2. The Judgment of the Court was delivered by Hegde,  J. This is an election petitioner’s appeal under  s. 116-A  of the Representation of the People Act, 1951 (to  be hereinafter  referred  to as the Act).  It  relates  to  the election  to  the Tamil Nadu Legislative  Council  from  the Madras City Graduates’ constituency.  The election was  held on  April  11,  1970.  Seven candidates  contested  in  that election.   The election was according to the principles  of proportional representation by means of single  transferable vote.   The  Madras City Graduates’ constituency was  a  two member  constituency.  The 1st respondent, Vasantha Pai  was declared  elected  in the first count  itself.   The  second respondent Narayanaswamy was declared elected in the  second count.   The election of Vasantha Pai was challenged by  the appellant  Vardachari who is an elector in the  constituency in  question on the ground that Vasantha Pai was  guilty  of corrupt practices mentioned in sub-ss. (2) and (4) of S. 123 of the Act.  The High Court came to the conclusion that  the petitioner has failed to make out his case and  consequently

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dismissed the election petition.  Hence this appeal.  889 The charges levelled against Vasantha Pai are : (1) that  he (Vasantlia Pai) falsely carried on propaganda to the  effect that  the  High Court of Madras had decided  in  an  earlier election  petition between him and R. N. Seshadri  that  the constituency   in   question   is   a   non-political    and Narayanaswamy  having been sponsored by the Swatantra  Party any votes given to him will amount to "throwing away" of the votes  and (2) that Narayanaswamy being a  non-graduate  was not qualified to be a candidate at the election. It  may be noted at this stage that Vasantha Pai did  object to  the  candidature of Narayanaswamy before  the  Returning Officer on the two grounds mentioned earlier.  The Returning Officer rejected those objections holding that there was  no material  before  him to show that  Narayanaswamy  had  been sponsored  by  the Swatantra party and further that  in  his view  a  non-graduate  is  not  disqualified  from   seeking election  from  a  graduate constituency.   Even  after  the Returning Officer rejected the contentions of Vasantha  Pai, he admittedly carried on the propaganda referred to  earlier by publishing leaflets as well as appeals in the Newspapers. Section  123 enumerates what are corrupt practices  for  the purposes  of  the Act.  Sub-s. (2) of that  section  to  the extent material for our present purpose reads               "Undue  influence, that is to say, any  direct               or   indirect  interference  or   attempt   to               interfere on the part of the candidate or  his               agent, or of any other person with the consent               of  the candidate or his election agent,  with               the free exercise of any electoral right."               (The  proviso is not relevant for our  present               purpose.)               Sub-s. (4) thereof says :               "The  publication by a candidate or his  agent               or by any other person, with the consent of  a               candidate   or  his  election  agent  of   any               statement of fact which is false, and which he               either  believes  to  be  false  or  does  not               believe  to  be  true,  in  relation  to   the               personal   character   or   conduct   of   any               candidate,  or in relation to the  candidature               or  withdrawal  of  any  candidate,  being   a               statement  reasonably calculated to  prejudice               the prospects of that candidate’s election." Before examining the points in issue, it is necessary to set out a few more facts. In  1967 a seat in the Madras City  Graduate&’  constituency fell vacant.  For that seat election was held on August  21, 1967.  In 890 that election Vasantha Pai was one of the contestants.   One of the other contestants was R. N. Seshadri.  R. N. Seshadri was  declared elected having secured the highest  number  of votes.   Thereafter Vasantha Pai challenged the validity  of the  election  of Seshadri on various grounds.  One  of  the grounds  taken by Vasantha Pai was that in an election  from graduates   constituencies   political  parties   were   not competent  to  sponsor  candidates,  Seshadri  having   been sponsored by the Swatantra party, was not qualified to be  a candidate.   Yet another ground taken was that Seshadri  was guilty  of corrupt practices coming within sub-s. (5) of  s. 123  of the Act.  The High Court set aside the  election  of Seshadri  on  the  ground  that he  was  guilty  of  corrupt practices mentioned in sub-s. (5) of s. 123.   Dealing  with

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the  question  whether  Seshadri  was  qualified  to  be   a candidate at the election or not it observed that there,  is no   satisfactory evidence before it to come to a conclusion that Seshadri had been sponsored by a political party.   But proceeding further it observed :               "It  is quite well known that the election  to               the Madras Legislative Council from the Madras               District  Graduates’  Constituency is  a  non-               party election.  No party symbols are assigned               to  the  candidates.   The  political  parties               cannot  also nominate any candidate  for  this               election." Aggrieved  by the decision of the High Court, Seshadri  took up the matter in appeal to this Court.  This Court  affirmed the  finding of the High Court that Seshadri was  guilty  of the  corrupt practices mentioned in sub-s. (5) of s. 123  of the  Act.  Evidently this Court was not invited to  consider the  correctness  of the observations of the  learned  trial judge that "election to the Madras Legislative Council  from the Madras District Graduates’ Constituency is, a  non-party election".   The judgment of this Court did not  touch  that point. After   the  decision  in  Seshadri’s  case,  Vasantha   Pai persisted  in  carrying on propaganda that the  Madras  High Court  had held that the election to the Madras  Legislative Council from the Madras District Graduates’ Constituency  is a  non-party election and no political party can  sponsor  a candidate  in  that  election.   He  also  carried  on   the propaganda   that  Narayanaswamy’s  candidature   had   been sponsored by the Swatantra party and therefore according  to him, he was not qualified to be a candidate. Having  set out these facts we will first  consider  whether Vasantha Pai was guilty of a corrupt practice coming  within sub-s.  (4) of s. 123.  The charge under this head is  based on  two  grounds  viz.  that  he  had  falsely  carried   on propaganda   that  the  High  Court  had  ruled   that   the constituency  in question was a  non-political  constituency and further that he had carried on a false propaganda’ 891 that Narayanaswamy was not qualified to be a candidate.  The ingredients  of the corrupt practice mentioned in S.  123(4) as set out by this Court in Guruji Shrihar Baliram  Jivatode v. Vithalrao and ors.(1) are :                1.   The  publication by a candidate or  his,               election    agent or any other person with  the               consent of the candidate or his election agent               of any statement of fact.               2.    Which  statement is false and which  was               believed  by the candidate to be false  or  at               any rate was not believed by him to be true;               3.    The   said  statement  relates  to   the               personal  character or conduct of a  candidate               or   in   relation  to  his   candidature   or               withdrawal and               4.    The  same being a  statement  reasonably               calculated to prejudice the prospects of  that               candidate’s election. Taking  up  first  the  propaganda  of  Vasantha  Pai   that Narayanaswamy  was not qualified to be a candidate,  it  was only  an  opinion  expressed by Vasantha Pai.   He  made  no statement  of fact.  An, opinion, much less an opinion on  a question of law cannot be considered as a statement of fact. Further  his opinion cannot be, said to be either  not  bona fide  or groundless as the Same was accepted as  correct  by the High Court of Tamil Nadu in the election petition  filed

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against  Narayanaswamy though that decision was reversed  by this  Court in G. Narayanaswami v. G. Pannerselvam and  ors. (2). The fact that the Returning Officer had held that  Narayana- swamy  was  qualified  to be a candidate  did  not  preclude Vasantha Pai from debating that issue before the electorate. Vasantha Pai’s propaganda that the High Court has held  that the graduates’ constituency is a non-political  constituency cannot  be  said  to be false  statement.   The  High  Court advertently or inadvertently said so though it was wrong  in saying so as we shall presently see.  Hence the charge under s. 123 (4) fails. Now  turning  our  attention  to  the  allegation  of  undue influence,  we fail to see how a debate whether a  candidate was  qualified  to  stand or whether a  political  party  is competent   to   nominate  candidates   for   a   particular constituency can be undue inifluencve with in the meaning of S. 123(2).  Both candidates have placed their point of  view before the electorate.  Vasantha Pai sought support from the High Court’s Judgment and Narayanaswamy relied on the  Press Note  issued  by  the  Election  Commission  that  political parties (1) [1969]2 S.C.R. 766.     (2) Civil Appeal No. 189 of 1971 decided on April 12, 1972. 892 are   not  precluded  from  sponsoring  candidates  in   the graduates’ constituencies.  Candidates in elections are  not only entitled to raise political issues, they can also raise social,  economic  and  legal  issues.   The  fact  that   a contention  is untenable does not convert it into  an  undue influence.  We do seek to limit the scope of the  expression "undue  influence" in s. 123(2).  As observed by this  Court in S. K. Singh v. V. V. Giri(1) :               "The  freedom  of  election  is  twofold;  (i)               freedom  in the exercise of  judgment.   Every               voter  should  be  free to  exercise  his  own               judgment,   in  selecting  the  candidate   he               believes  to be best fitted to  represent  the               constituency;  (2) Freedom to go and have  the               means  of going to the poll to give  his  vote               without fear or intimidation." In  that  decision  this Court observed  after  taking  into consideration s. 171 (G) of I.P.C.               "It  is  clear that in pursuit  of  purity  of               elections   the   legislature   frowned   upon               attempts  to  assail such purity by  means  of               false  statements  relating  to  the  personal               character and conduct of a candidate and  made               such acts punishable thereunder.  But the fact               that  making  of such a false statement  is  a               distinct  offence under Section 1 7 1  G  does               not  and cannot mean that; it cannot take  the               graver  form  of  undue  influence  punishable               under  section 171F.  The false statement  may               be  of  such virulent,  vulgar  or  scurrilous               character  that it would either deter or  tend               to deter voters from supporting that candidate               whom  they  would have supported in  the  free               exercise  of  their electoral  right  but  for               their  being  affected  or  attempted  to   be               affected by the maker or the publisher of such               a  statement.  Therefore it is the  degree  of               gravity  of the allegation which will  be  the               determining  factor  in  deciding   whether,it

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             falls under Section 171C or Section 171G.   If               the allegation though false and relating to  a               candidate’s  personal  character  or  conduct,               made  with the intent to affect the result  of               an  election, does not amount to  interference               or  attempt at such interference, the  offence               would  be  the lesser one.  If, on  the  other               hand, it amounts to interference or an attempt               to  interfere, it would be the graver  offence               under See. 171-F, read with Section 171C." Herein  it may be noted that Vasantha Pai did not  make  any attack  on the character of Narayanaswamy.   His  contention was  that the election to the constituency in  question  was non-political and that Narayanaswamy was not qualified to be candidate, he (1)  [1971] 2 S.C.R. 197.  893 being  not a graduate.  Vasantha Pai was entitled  to  place these  points  of view before the electorate and  even  tell them  that if Narayanaswamy is elected he may challenge  his election.   It  was for Narayanaswamy or his  supporters  to counter the arguments advanced on behalf of Vasantha Pai. For the reasons mentioned above we agree with the High Court that  the  appellant  has failed to  establish  the  charges levelled by him. At  the same time we think it necessary to observe that  the conclusion of the Madras High Court in R. N. Seshadri’s case that the Graduates’ constituency is a non-party constituency is  an  erroneous  conclusion.  There  is  no  reference  to political parties either in our Constitution or in the  Act. The  political  parties  come into  the  picture  indirectly though they have an important place in our political set up. Our Constitution and the Act refer to candidates as such and not  to the parties to which they belong.  Art. 173  of  the Constitution prescribes the qualifications of the person  to be  chosen  to fill a seat in the legislature  of  a  State. They are               (1)   He must be a citizen of India.               (2)   He  must make and subscribe before  some               person  authorised  in  that  behalf  by   the               Election  Commission  an oath  or  affirmation               according to the form set out for the  purpose               in the Third Schedule to the Constitution.               (3)   In the case of a seat in the Legislative               Assembly he must not be less than 25 years  of               age  and in the case of a Legislative  Council               he must not be less than 30 years of age and               (4)   He     must    possess    such     other               qualifications  as may be prescribed  in  that               behalf by or under any law made by parliament. Then we come to the provisions of the Act.  Section 5 of the Act  prescribes  the  qualifications  for  membership  of  a Legislative   Assembly.    In   the  case   of   a   general constituency,  the only qualification prescribed is that  he must  be  an elector for any assembly constituency  in  that State.    Section  6  prescribes  the   qualifications   for membership of a Legislative Council.  That Section reads               (1)   A  person shall not be qualified  to  be               chosen  to  fill  a seat  in  the  Legislative               Council  of a State to be filled  by  election               unless  he  is  an elector  for  any  Assembly               constituency in that State.                                    894               (2)   A  person shall not be qualified  to  be               chosen  to  fill  a seat  in  the  Legislative

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             Council of a State to be filled by  nomination               by  the  Governor  unless  he  is   ordinarily               resident in the State." The Representation of the People Act, 1950 prescribes quali- fications  for being enrolled as an elector.  Sections 8  to 10A of the Act set out the grounds which disqualify a person from  being  a  candidate.  If a person  possesses  all  the qualifications prescribed in the Constitution as well as  in the  Act and has not incurred any of  the  disqualifications mentioned  therein then he is qualified to be  a  candidate. It  may  look  anomalous that a  non-graduate  should  be  a candidate in a Graduates’ constituency.  But if a  candidate possesses the qualifications prescribed and has not incurred any  of the disqualifications mentioned in the  Constitution or in the Act other consideration becomes irrelevant.   That is  the ratio of the of this Court in  Narayanaswami’s  case (supra). It was urged on behalf of Vasantha Pai that Art. 171 (3) (d) of  the Constitution specifically says that the  members  of the Assembly should elect as nearly as may be 1/3rd  members of the Legislative Council from amongst persons who are  not members of the Assembly.  But no such stipulation is made in the other clauses of that Art.  Therefore we should conclude that when elections are held under cls. (a), (b) and (c)  of sub-art.  (3) of Art, 171, the person to be elected must  be one  who is a member of the electoral college  in  question. We see no logic in this reasoning.  The relevant  provisions do not say so.  From the language of those provisions, it is clear  that  the  candidate may either be a  member  of  the electoral  college  in question or even an  outsider.   This question  is  no more res integra.  It is concluded  by  the decision of this Court in Narayanaswami’s case (supra). Dealing   with  the  question  that  the  election  to   the Graduates’ constituency is non-political, our attention  was invited  on behalf of Vasantha Pai to certain  rules  framed under  the  Act as well as forms prescribed.   In  the  form prescribed   for  nominating  candidates   for   legislative assemblies,  there  is a column requiring the  candidate  to mention  whether  he belongs to a political  party,  it  so, which  party,  whereas there is no such column in  the  form prescribed  for  nominating candidates  to  the  legislative council.  From this we are asked to infer that the  election to the legislative council is non-political.  In our opinion this  is  an  erroneous contention.   The  electors  to  the legislative assembly are by and large illiterate.  Hence  to facilitate the freedom of voting, the symbol system had been introduced.   There are two types of symbols  viz.  reserved symbols  and  free symbols.  Reserved symbols  are  allotted only to  895 candidates sponsored by recognised political parties.   Free symbols are given to others.  In order to allot the reserved symbols, it is necessary for the Election Commission to know whether  a  particular  candidate  is  the  nominee  of  any political  party.   Symbol  system  is  unnecessary  in  the elections  to the Legislative Council because  the  electors therein are by and large educated.  They can exercise  their franchise without the assistance of the symbols.  We can see no  legal objection for any political party sponsoring  can- didates to the seats in the Legislative Councils. One other question remains to be decided.  The learned trial judge has imposed penal costs of Rs. 500/- on the appellant; that  in addition to the ordinary costs.  It  was  contended before us that the learned judge had no competence to impose penal  costs.  We do not think it necessary to  decide  that

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question.  From the facts and circumstances of this case, we do  not  think that there was any  justification  to  impose penal  costs.  We accordingly set aside the  order  imposing penal  costs.  In other respects this appeal fails  and  the same is dismissed with costs. V.P.S.                                                Appeal dismissed. 896