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PETITIONER: RAM DIAL

       Vs.

RESPONDENT: SANT LAL AND OTHERS

DATE OF JUDGMENT: 23/04/1959

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. KAPUR, J.L. HIDAYATULLAH, M.

CITATION:  1959 AIR  855            1959 SCR  Supl. (2) 748  CITATOR INFO :  R          1969 SC 734  (8)  D          1969 SC 851  (24)  E          1970 SC2097  (261,312A)  R          1984 SC 309  (38)  RF         1986 SC   3  (19,15,209)

ACT: Election Petition-Allegation of corrupt practice-Mandate  to voters by religious leader-Undue influence-Representation of the  People  Act,  1951 (27 Of  1951),  s.  123(2),  Proviso (a)(ii).

HEADNOTE: This  appeal was directed against concurrent orders  of  the Election  Tribunal  and the High Court  on  appeal,  setting aside  the  appellant’s election to the  Punjab  Legislative Assembly on an election petition filed by the respondent No. 1,  on  the ground of corrupt practice  of  undue  influence within  the meaning of proviso (a)(ii) to s. 123(2)  of  the Representation  of the People Act, 951.  A large  number  of voters  of  the  constituency were Namdhari  Sikhs  and  the appellant,  under  the authority of  the  supreme  religious leader  of  the  Namdhari  Sikhs and  his  son,  issued  the following  poster and distributed it widely  throughout  the constituency,- 749 "A  command  from  Shri  Sat  Guru  Sacha  Padshah  to   the Naindharies of Halqa-Sirsa". "Every Namdhari of this Halqa is commanded by Shri Sat  Guru that he should make every effort for the success of Shri Ram Dayal  Vaid,  a candidate for the Punjab  Vidhan  Sabha,  by giving   his  own  vote  and  those  of  his   friends   and acquaintances,  it  being  our  primary  duty  to  make  him successful  in  the election.  The election symbol  of  Shri Vaid is a riding horseman. Sd. Maharaj Bir Singh S/o.  Sat Guru Maharaj Pratap Singh, Jiwan Nagar (Hissar)." Both  the Tribunal and the High Court found that  the  reli- gious leader not only issued the said hukam or command,  but also  delivered speeches to the effect that  every  Namdhari

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must  vote for the appellant implying that  disobedience  of his  mandate  would carry divine  displeasure  or  spiritual censure and practically left no free choice to the  Namdhari electors. Held, that the case clearly fell within the purview of  pro- viso  (a)(ii)  to  s. 123(2) Of the  Representation  of  the People Act and the appeal must be dismissed. The law in England relating to undue influence at elections, was  not  the same as the law in India.  While  the  law  in England  laid  emphasis upon the individual  aspect  of  the exercise  of undue influence, under the Indian law what  was material was not the actual effect produced but the doing of such  acts  as were calculated to interfere  with  the  free exercise of an electoral  North Durham’s case, (1874) 2 O’M. & H. 152, referred to. Decisions  of the English Courts in this regard,  therefore, could not be used as precedents in India.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 108 of 1959. Appeal from the judgment and order dated November 25,  1958, of the Punjab High Court in F.A.0. No. 173 of 1958. A.   V. Viswanatha Sastri and Naunit Lal, for the appellant. M.   C. Setalvad, Attorney-General for India, V. A. Syed Mohammad and M. K. Ramamurthi, for respondent    No. 1. R.   H. Dhebar, for respondent No. 3. 1959.  April 23, The Judgment of the Court was delivered by 750 SINHA, J.-When the hearing of the appeal had been  concluded on March 18, 1959, we had informed the parties, as also  the counsel  for  the  Election Commission of  India,  that  the appeal  is dismissed with costs, and that the reasons  would follow.  We now proceed to give our reasons. This is an appeal on a certificate of fitness granted by the High  Court  of  Judicature  for  the  State  of  Punjab  at Chandigarh,  against the judgment and order  dated  November 25,  1958, of that Court, dismissing an appeal  against  the order of the Election Tribunal, Hissar, dated September  14, 1958,  setting aside the appellant’s election to the  Punjab Legislative  Assembly.   The appellant  was  the  successful candidate  from the general seat which was  a  double-member constituency of Sirsa, the other successful candidate  being a  Harijan  candidate-respondent No. 2 in this  Court.   The first  respondent contested the general seat.  The  Election Commission of India was added as the third respondent by  an order  of  this Court, dated February 27,  1959,  when  this Court was moved in the stay matter.  This Court directed the case itself to be heard before the date fixed for the  fresh election as a result of the order of the Election Tribunal. It appears that for the double-member constituency of Sirsa, there  were  a large number of candidates.  One of  the  two seats  was  reserved for members of  the  scheduled  castes. After the usual withdrawals, sixteen candidates were left in the  field to contest the two seats, eight candidates  being for the general seat, and the other eight, for the  reserved seat.  We are not here concerned with the seat reserved  for members of the scheduled castes.  In respect of the  general constituency,  the appellant secured 27,272  votes,  whereas the  first  respondent secured 23,329, as a  result  of  the election  which  took place on March 12 and 14,  1957.   The result of the election was declared on March 17, 1957. The first respondent filed an election petition on April 289 1957,  challenging  the  election  of  the  appellant.   The

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election  was  challenged  on a  large  number  of  grounds- practically exhausting all available 751 grounds  under  the  election law-but as  a  result  of  the findings of the Election Tribunal and of the High Court,  we are  only  concerned  with the  allegations  relating  to  " corrupt  practices  ", contained in sub-paras.  I  to  3  of para.  13B of the election petition, which formed the  basis for  issue No. 4. The relevant allegations may be stated  in extenso in the words of the election petition, as under:- " (B) : That respondent No. I himself, his agents and  other persons  with  the consent of the respondent No. 1  and  his agents   have  committed  the  corrupt  practice  of   undue influence  by  interfering directly or indirectly  with  the free  exercise  of the electoral right of the  ’electors  of this  constituency.   The  known details  of  these  corrupt practices  are given in the various clauses under  the  sub- para. :- (1)  Sat  Guru  Maharaj  Pratap Singh of  Jiwan  Nagar,  the religious  head  of  Namdharis sect of the  Sikhs  had  some personal  grievances  against Shri Devi Lal  of  Chautala  a prominent Congress Leader of the constituency, and the chief supporter  of the petitioner at this  election.   Respondent No.  1  fully  knowing of this grievance  of  the  Sat  Guru approached  him  and  through him  also  approached  Maharaj Charan Singh of Sikanderpur the religious head of the  Radha Swaini  Samaj and got issued Farmans (orders) by both  these religious  heads to their followers in this constituency  to the effect that their Dharma required them to wholeheartedly support  respondent No. 1 and to oppose the  candidature  of the petitioner and that if any of the followers dared to act against their Farmans, the wrath of the aforementioned Gurus would  fall  upon him and he would be the object  of  Divine displeasure.   These  Farmans of the two Gurus  were  orally conveyed,  through the ’Subas’ of Namdharis, Shri Bir  Singh the son of Sat Guru Partap Singh and Naginder Singh and Shri Purshotam  Singh followers of Guru Charan Singh,  throughout the  Constituency wherever the followers of these two  sects resided  from the day of withdrawal till the polling  began, during their canvassing tours for respondent No. 1, Shri Bir Singh, Purshotam Singh and Naginder Singh aforesaid and Sant Teja 752 Singh  M.L.C.  in Diwans held in the  various  villages  and towns  of  the Constituency during  their  canvassing  tour, besides  repeating  these ’Farmans’ of the  two  Gurus  also threatened  the followers with expulsion from the  sect  and Samaj  if  they went against the wish of the Gurus  in  this matter. (ii) That  Sat Guru Pratap Singh himself in the presence  of respondent  No. 1 in the Big-Diwan of his followers held  on the  25th  of February, 1957, at Sirsa in Radha  Swami  Sat- Sangh Hall, preached and commended all those present that it was  the  primary Dharma of all his followers  to  help  the candidature of respondent No. 1 and to oppose the petitioner with  all  their  might by giving their  own  votes  and  by canvassing   among   their   area  of   influence   in   the constituency: -The Sat Guru himself held Diwans at  villages Tharaj on, the 6th of March, 1957, at village Dhiwan on  the 5th March, 1957, at village Rori on the 6th March, 1957, and at  Phaggu  on  the 6th March, 1957.   In  these  Diwans  he besides repeating his Farmans aforesaid also relied upon the strong  appeal of his relationship, he being the son of  the daughter  of  village  Tharaj.   A very  big  diwan  of  his followers also hold at Khairpur on the 26th February,  1957,

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for  the same purpose where the Sat Guru  himself  commended his followers in the like tune. (iii) That respondent No. 1 got issued posters in thousands printed on both the sides in Hindi and Gurumukhi scripts  on the 26th of February, 1957, containing the orders  ’Farmans’ of Satguru Partap Singh under the signature of Shri  Maharaj Bir  Singh son of Satguru Partap Singh.  These posters  were got published at the instance of respondent No. 1 at  Bansal Press  Hissaria  Bazar, Sirsa.  These posters  contained  in verbatim  the orders ’Farmans’ of the Satguru to the  effect that  it  was the primary Dharma of every Namdhari  of  this constituency  to  give his-own vote as well  as  to  canvass votes  of  their  all  acquaintances  for  Shri  Ram   Dayal candidate respondent No. 1. A copy of the poster in original together  with its English translation is attached with  the petition and may be read as to form its part.  These posters were distributed 753 throughout the constituency after the same were got  printed till  the  polling day in all the  villages  where  Namdhari reside." In  support of all his allegations quoted above,  the  first respondent adduced a large volume of oral evidence,  besides some documentary evidence as well.  The Tribunal came to the conclusion  that Maharaj Pratap Singh had issued farmans  to his satsanghis that he, who will not vote for the appellant, would  suffer not only in this world but in the  next  also, but it found it not proved that the farmans or orders of the two  religious heads of the Namdharis and Radhaswamis,  were orally  conveyed through Maharaj Bir Singh, son  of  Maharaj Partap  Singh, Naginder Singh and Shri Purshotam  Singh,  to the followers of the two Gurus in the constituency, or  that they,  while conveying the farmans of the Gurus,  threatened the  followers  with expulsion from the sect, if  they  went against the wishes of the Gurus, except what Naginder  Singh had said in the Diwan at Sirsa and at other places.  It also recorded  the  finding  that the Diwans were  held  for  the purpose of canvassing in favour of the appellant at the time and  place mentioned in the petition, and that those  Diwans were  addressed by Maharaj Partap Singh and others.  It  was also found that Maharaj Partap Singh actively supported  the candidature of the appellant, and addressed his followers on the  basis  of  religion  and asked them  to  vote  for  the appellant, and that all this was done at the instance and in the  presence of the appellant.  It was further  found  that posters, like exh.  P. 1, were issued by the appellant under the  authority of Maharaj Bir Singh and his father,  Maharaj Partap   Singh,  and  widely  distributed   throughout   the constituency.   The Tribunal also discussed the question  as to  whether, on those findings, the provisions of s.  123(2) of  the Representation of the People Act, 1951  (which  will hereinafter  be  referred  to as I the  Act’),  relating  to "undue  influence-", could be said to have  been  satisfied; and  alternatively, whether those findings would  bring  the case within the provisions of cl. (3) of s. 123 of the Act, 95 754 relating  to  systematic appeal on grounds of  caste,  race, community  or  religion, etc.  The Tribunal appeared  to  be inclined to the view that a command in terms of exh.  P.  1, emanating  from a religious head, like the Sat Guru, to  his followers-mostly illiterate and ignorant persons-may well be construed as " undue influence".  But alternatively, it also held that even if the provisions of cl. (2) of s. 123 of the Act, had not been satisfied, the case had been brought  well

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within the purview of el. (3) of s. 123.  Other issues  were either not pressed or were decided against the petitioner in that   court.    The  Tribunal,  therefore,   declared   the appellant’s election void under s. 100(1)(b) of the Act.  In view  of  the  fact  that  the  petitioner  had  failed   to substantiate many of his allegations, the Tribunal  directed the parties to bear their own costs. The  appellant  preferred  an appeal which was  heard  by  a Division  Bench (Falshaw and Dua, JJ.) of the High Court  of Judicature for the State Of Punjab at Chandigarh.  The  High Court  substantially affirmed the findings of  the  Election Tribunal  on  issue No. 4 aforesaid.  The  High  Court  also accepted  the  oral  evidence  adduced  on  behalf  of   the respondent,with particular reference. to the publication and wide  distribution of the poster, exh.  P. 1. In the  course of its judgment, the High Court observed: " The language of the mandate and the general background and circumstances   of   this   case   including   the   obvious consciousness  of Maharaj Pratap Singh and Ram Dial  of  the probable   and  likely  effect  of  such  commands  on   the illiterate, ignorant and credulous followers of the  Maharaj can  lead  but  to one conclusion that it  was  intended  to convey  to  them.  the  threat  of  divine  displeasure  and spiritual  censure  if they dared to disobey the  farman  of their supreme spiritual and religious head." In  answer  to  the  contention that  the  farman  had  been motivated not by religious considerations but by a  personal grievance,  the High Court did not attach any importance  to the  alleged difference in the motive, and observed: If  the influence exercised by the religious and 755 spiritual  head has the effect of creating in the  minds  of the  voters  a feeling of divine  displeasure  or  spiritual censure then whatever the motive, the influence would amount to  undue influence.  The contents of the poster  reproduced earlier unequivocally establish the mandatory nature of  the command.   Religious sanction is, in my opinion, implict  in it  and  I  think,  on  a  reasonable  construction  of  its contents, it must be held that Maharaj Pratap Singh intended to  convey  to  his followers  who  are  mostly  illiterate, ignorant,  credulous and unsophisticated  villagers,  having blind  and  implicit faith in their religious head  that  if they did not vote for Ram Dial, they would incur divine dis- pleasure   and  spiritual  censure.   With  this  class   of villagers  the displeasure of the religious head is  usually associated with divine displeasure." Dealing  with  the  scope of s. 123(2),  it  held  that  the language  of the poster, exh.  P. 1, construed in the  light of  the  oral  evidence, left the Court  in  no  doubt  that Maharaj  Partap Singh’s farman did necessarily imply  divine displeasure  and  spiritual censure for those who  chose  to disobey the farman. - In its view, therefore, the facts,  as found, attracted the provisions of s. 123(2) of the Act.  It also  held  that the evidence led in the  case,  established that  the  meetings addressed by Maharaj  Partap  Singh  and others, in support of the election of the appellant, induced the belief that the voters would incur divine displeasure or spiritual  censure if they did not vote in  accordance  with the mandate issued by the Maharaj, thus, clearly  establish- ing the commission of corrupt practice of " undue  influence ".  The  High Court also examined the question  whether  the corrupt practice falling under cl. (3) of s. 123 of the Act, had  been  established,  and decided  the  question  in  the negative,  though not without some hesitation.   It  further held that the publication of the poster, exh.  P. 2, did not

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bring  the case within the purview of s. 123(4) of the  Act. In the result, the High Court agreed with the conclusion  of the Tribunal, declaring the election void, and dismissed the appeal with costs.  The appellant applied to the High Court, praying for the necessary certificate that the 756 case was a fit one for appeal to this Court, and that  Court granted the certificate.  Hence, this appeal. After  the decision of the Tribunal and of the  High  Court, the  only  question  for determination in  this  appeal,  is whether, on the findings of fact recorded, as stated  above, the  corrupt practice of " undue influence ", as defined  in s. 123(2), has been made out.  It has been argued on  behalf of the appellant that the main cl. (2) of s. 123, is out  of the way of the parties in this case, because it applies only to threats of injury to person, or property and not to  what may  be  termed  " spiritual undue  influence  ",  which  is specifically  covered by sub-el. (ii) of proviso (a) to  cl. (2) of s. 123.  It was further argued that the word " deemed "  would show that the proviso is by way of an  addition  to the  main  provision of el. (2) of s. 123; that is  to  say, what was not actually covered by the main cl. (2), has  been added to the ambit of the definition by the proviso.  It has further been argued that el. (2) is directed against  unduly influencing individual voters, and reliance was placed  upon the cases of Cheltenham(1), Nottingham (2)   and       North Durham Reference was also made to the observations in Rogers on Elections " (4), and it was argued that anelectoral right, as defined in s.  79(d)  of  the Act, is  a  personal individual right, including the right to vote or to  refrain from  voting at an election.  Hence, there should have  been pleading  by  the  petitioner and finding by  the  Court  on evidence  that certain named individuals had been  subjected to  the corrupt practice of undue influence.   Secondly,  in the  absence  of  any such pleading or  finding,  a  general allegation  of  the  corrupt practice  of  undue  influence, without  reference to individuals, is not enough in  law  to vitiate an election.  The corrupt practice of undue influence has been defined in el. (2) of s. 123 of the Act, in these terms :- "  (2)  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 (1)  (1869) 1 O’M. & H. 62, 64. (2)  (1869) 1 O’M. & H. 245, 246, (3)  (1874) 2 O’M. & H. 152, 156. (4)  Vol., II 20th Ed., P. 329. 757 person,  with  the consent of a candidate  or  his  election agent, with the free exercise of any electoral right: Provided that- (a)without  prejudice to the generality of the  provisions of  this  clause any such person as is referred  to  therein who- (i)threatens any candidate, or any elector, or any  person in whom a candidate or an elector is interested, with injury of  any kind including social ostracism and  excommunication or expulsion from any caste or community ; or (ii)induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is  interested, will  become  or  will  be  rendered  an  object  of  divine displeasure or spiritual censure, shall  be deemed to interfere with the free exercise of  the electoral right of such candidate or elector within the meaning of this clause;

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(b)a declaration of public policy, or a promise of  public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause It  should  be  observed, at the outset,  that  the  law  in England,  relating to undue influence at elections,  is  not the  same  as  the law in India, as  will  appear  from  the following definition of " undue influence " contained in  s. 2 of 46 & 47 Vict. c. 51, which substantially re-enacted the former s. 5 of 17 & 18 Viet. c. 102:- " Every person who shall directly or indirectly, by  himself or  by  any  other person on his behalf,.  make  use  of  or threaten  to make use of any force, violence, or  restraint, or  inflict  or threaten to inflict, by himself  or  by  any other  person,  any temporal or  spiritual  injury,  damage, harm, or loss upon or against any person in order to  induce or compel such person to vote or refrain from voting, or  on account of such person having voted or refrained from voting at  any election, or who shall by abduction, duress, or  any fraudulent device or contrivance, impede or prevent the free exercise of the- franchise of any elector, or shall  thereby compel, induce, or prevail upon any 758 elector either to give or to refrain from giving his vote at any election, shall be guilty of undue influence". The words of the English statute, quoted above, lay emphasis upon  the  individual  aspect  of  the  exercise  of   undue influence.   It  was  with reference to the  words  of  that statute, that Bramwell, B., made the following  observations in North Durham (1):- " When the language of the Act is examined it will be  found that   intimidation  to  be  within  the  statute  must   be intimidation practised upon an individual ". The Indian law, on the other hand, does not emphasise the individual  aspect of  the exercise of such influence, but pays regard  to  the use of such influence as has the tendency to bring about the result  contemplated in the clause.  What is material  under the  Indian law, is not the actual effect produced, but  the doing  of such acts as are calculated to interfere with  the free  exercise  of any electoral right.   Decisions  of  the English  Courts, based on the words of the English  statute, which are not strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents  in this country. In  the present case, we are not concerned with the.  threat of temporal injury, damage or harm.  On the pleadings and on the  findings of the Tribunal and of the High Court, we  are concerned  with  the undue exercise of  spiritual  influence which  has been found by the High Court to have been such  a potent  influence  as to induce in the electors  the  belief that they will be rendered objects of divine displeasure  or spiritual  censure if they did not carry out the command  of their  spiritual  head.  It was argued that exh.  P.  1,  on which  so  much stress was laid by the Tribunal and  by  the High Court, did not contain any such direct threat as  would bring the case within the second paragraph of proviso (a) to s.  123(2).  Exhibit P. 1, as officially translated,  is  in these terms:- "  A  command  from  Shri Sat  Guru  Sacha  Padshah  to  the Namdharies of Halqa-Sirsa " Every Namdhari of this Halqa is commanded by Shri Sat Guru that he should make every effort for (1)  (1874) 2 O’M. & H. 152,156. 759 the  success  of Shri Ram Dayal Vaid, a  candidate  for  the

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Punjab Vidhan Sabha, by giving his own vote and those of his friends and acquaintances, it being our primary duty to make him successful in the election. The election symbol of  Shri Vaid is a riding horseman. Sd. Maharaj Bir Singh S/o Sat Guru Maharaj Partap Singh, Jivan Nagar (Hissar) ". We have looked into the original document also, and we agree with  the High Court that the crucial words, like  hukam  of Shri Sat Guru Sacha Padshah, etc., have been printed in very bold letters, conveying the distinct impression to the large number  of  Namdharis, who are voters in  the  constituency, that it was a mandate from their spiritual guru who  wielded great  local  influence  amongst them,  that  it  was  their bounden  duty,  under the strict orders of  their  religious leader,  not only to cast- their own votes in favour of  the particular  candidate,  but also to  exert  their  influence amongst  their friends and acquaintances in favour  of  that candidate;  and  that any infringement of that  mandate  had implicit in it divine displeasure or spiritual censure. It was contended on behalf of the appellant that a religious leader  has  as much the right to freedom of speech  as  any other  citizen,  and  that, therefore,  his  exhortation  in favour of a particular candidate should not have the  result of vitiating the election.  There cannot be the least  doubt that a religious leader has the right freely to express  his opinion   on  the  comparative  merits  of  the   contesting candidate  and to canvass for such of them as  he  considers worthy  of the confidence of the electors.  In other  words, the  religious leader has a right to exercise his  influence in favour of any particular candidate by voting for him  and by  canvassing votes of others for him.  He has a  right  to express  his  opinion  on  the  individual  merits  of   the candidates.  Such a course of conduct on his part, will only be a use of his great influence amongst a particular section of the voters in the constituency ; but it will amount to an abuse of his great influence if 760 the words he uses in a document, or utters in his  speeches, leave  no  choice to the persons addressed by  him,  in  the exercise  of their electoral rights.  If the religious  head had  said  that  he preferred the  appellant  to  the  other candidate,  because, in his opinion, he was more  worthy  of the confidence of the electors for certain reasons good, bad or  indifferent,  and  addressed words  to  that  effect  to persons  who  were amenable to his influence,  he  would  be within his ’rights, and his influence, however great,  could not be said to have been misused.  But in the instant  case, as it appears, according to the findings of the High  Court, in  agreement with the Tribunal, that the  religious  leader practically  left no free choice to the  Namdhari  electors, not  only  by issuing the hukam or farman, as  contained  in exh.   P. 1, quoted above, but also by his speeches, to  the effect that they must vote for the appellant, implying  that disobedience  of his mandate would carry divine  displeasure or spiritual censure, the case is clearly brought within the purview of the second paragraph of the proviso to s.  123(2) of the Act.  This aspect of the case has been dealt with  at length by the High Court in a well-considered judgment,  and we  do  not think it necessary to repeat  all  those  obser- vations,  beyond  saying that we agree with them.   In  that view  of the matter, it is not necessary for us to  consider the  further  question whether el. 2 of s. 123 of  the  Act, apart from the proviso-para. (ii), discussed above-covers  a case,  like the present, where the undue influence is  of  a

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spiritual character as distinguished from threats of  injury to person or property.  As the -main ground urged in support of the appeal against the judgment of the High Court, fails, the  appeal must be dismissed with costs to  the  respondent No. 1. Appeal dismissed. 761