09 October 1964
Supreme Court


Case number: Appeal (civil) 506 of 1964






DATE OF JUDGMENT: 09/10/1964


CITATION:  1965 AIR  669            1965 SCR  (1) 712  CITATOR INFO :  F          1967 SC1182  (10)  E          1968 SC 102  (4)  F          1971 SC1262  (42)  R          1971 SC2025  (52,53)  F          1972 SC  43  (2)  R          1972 SC1954  (9)  RF         1972 SC2195  (17)  R          1985 SC  89  (10)

ACT: Representation   of  the  People  Act  (43  of   1951),   s. 123(3)--Corrupt practice of using religious symbol-What is. Practice-Supreme  Court-Appeal  by  special  leave-Right  of respondent  to support judgment on grounds found against  by High Court. Election-Purity  of-Tribunal and High Court-Duty to  inquire into allegations of corrupt practice.

HEADNOTE: The  first  respondent sought to have the  election  of  the appellant  to the Assembly seat set aside on  the  following two grounds, among others :(i) that the appellant was guilty of a corrupt practice within the meaning of s. 123(3) of the Representation of the People Act, 1951, by using a religious symbol, namely the Dhruva star, as his election symbol,  and by  the distribution of pamphlets in which the qualities  of the star were set out, and (ii) that the second respondent’s nomination paper was improperly accepted because he had  not completed 25 years of age.  The Tribunal rejected the  first ground but set aside the election on the second.  On appeal, the High court rejected the second ground, but set aside the election on the first.  On appeal to the Supreme Court, HELD  :  (i)  An election dispute is  to  a  certain  extent different  from a private dispute between the parties  to  a lis  because  the constituency also comes into  the  picture and,  therefore, it is the duty of the Election Tribunal  to safeguard its interests and if corrupt practices are alleged against  any  candidate to enquire into them  and  ascertain whether the allegations have been substantiated.  But  where



a  party did not seek to challenge those findings there  was no  further  duty  upon  the High  Court  to  examine  their correctness. [715 C-E] (ii)The  use of the Dhruva star and its description  in  the pamphlet  did  not amount to a corrupt practice  within  the meaning of the section.  To say that voters who saw or  read the  leaflets were likely to conjure up it their  minds  the picture  of a highly religious person and, therefore,  their religious  sentiments  would have been aroused was  too  far fetched a conclusion. [723 A] (iii)As soon as special leave is granted there is an  appeal before  the  Supreme Court and while dealing  with  such  an appeal it exercises its civil jurisdiction, when the  matter arises out of civil proceedings. [724 A-B] (iv)While dealing with the appeal before it, this Court  has the power to decide all the points arising from the judgment appealed  against  and  even in the absence  of  an  express provision like 0. XLI, r. 22 of the Code of Civil  Procedure it can devise the appropriate procedure to be adopted at the hearing.   There  could be no better way  of  supplying  the deficiency than by drawing upon the pro-visions of a general law  like the Code of Civil Procedure and adopting  such  of those provisions as are suitable. [724 D-F]  713 Jagdev  Singh  Sidhaniti  v. Pratap Singh  Daulta  and  Ors. A.I.R. 1965 S.C. 183; Shubnath Deogram v. Ram Narain  Prasad JUDGMENT: Singh, A.I.R. 1965 S.C. 141, followed. Observations in Vashist Narain Sharma v. Dev Chandra &  Ors. [1955] 1 S.C.R. 509, 519, disapproved. Sri Baru Ram v. Shrimati Prasanni and others, [1959]  S.C.R. 1403, referred to.

& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 506 of 1964. Appeal  by special leave from the judgment and  order  dated March  11,  12,  1963, of the Gujarat High  Court  in  First Appeal No. 428 of 1962 from Original Decree. S. T. Desai and S. C. Agarwal, for the appellant. Rajani Patel and I. N. Shroff for the respondent. S. S. Shukla, for respondent No. 2 and the Intervener. The Judgment of the Court was delivered by Mudholkar J. The main question which arises for decision  in this  appeal from the judgment of the Gujarat High Court  is whether  the  appellant  could be said to  be  guilty  of  a corrupt practice contemplated by sub-s. (3) of S. 123 of the Representation of the People Act, 1951 (hereinafter referred to  as  the  Act) by reason of the fact  that  his  election symbol,  a  star,  was  described as  ’Dhruva  star  in  the pamphlets published and distributed by him or by his  agents and in which the qualities of Dhruva star were also set out. The  election  to the Assembly seat was contested  by  three candidates,  the appellant, respondent No. 1 and  respondent No. 2. The appellant having secured 20,062 votes as  against 15.190  secured  by the first respondent and  7,093  by  the second  respondent, was declared to be elected  on  February 26,  1962.   The  first respondent  thereupon  preferred  an election petition before the Election Commission challenging the appellant’s election on the following five grounds:                (1)  That  the  second  respondent  had   not               completed  25 years of age on the date of  the               scrutiny  of the nomination papers,  that  the               acceptance   of  his  nomination   paper   was



             improper  and that the result of the  election               was  materially affected thereby  inasmuch  as               all the votes secured by him, would, if he had               not been a candidate, have been secured by the               first respondent;               714               (2)   that the appellant was guilty of corrupt               practices because he and his agents had bribed               the   voters  and  had  also   brought   undue               influence to bear upon them;               (3)   that   the  appellant  and  his   agents               procured  bus  No.  GTA 7673  for  taking  the               voters  from  village Sodpur to and  from  the               polling booths;               (4)   that  the appellant and his  agents  had               issued  and widely distributed  leaflets  with               ’star’  as  a  symbol  prefixed  by  the  word               "Dhruva" with a view to give religious impetus               and to appeal to the voters to vote for him in               the name of religion;               (5)   that certain notifications issued by the               Governor  of  the  State of  Gujarat  and  the               Election Commission had not been issued in due               compliance with the provisions of law. The  Tribunal  rejected  all  the  allegations  relating  to corrupt  practices made against the appellant and also  held that  the  distribution  of leaflets did  not  amount  to  a corrupt  practice.   The  Tribunal  similarly  rejected  the contention of the first respondent as to the validity of the notifications  issued  by  the  Governor  and  the  Election Commission.  It, however, held that the second  respondent’s nomination paper had been improperly accepted because he had not attained the age of 25 at the date of scrutiny and  that in  consequence  thereof  the result  of  the  election  was materially  affected.   Upon this ground it  set  aside  the appellant’s election. In  appeal  the  High  Court reversed  the  finding  of  the Tribunal regarding the age of the second respondent and held that  he having completed the age of 25 on January  6,  1962 which  was prior to the date of scrutiny was duly  qualified to contest the election.  It, however, affirmed the ultimate decision  of the Tribunal on the ground that  the  appellant and the Swatantra Party to which he belonged had been guilty of   a  corrupt  practice,  namely,  of  appealing  to   the electorate  on grounds of religion and of using a  religious symbol for the furtherance of his prospects in the election. The judgment of the Court was delivered by K. T. Desai  C.J. in the course of which he has stated (at p. 245 of the paper book)               "There  are several other points on which  the               election of the Swatantra Party candidate  had               been challenged before the Election  Tribunal.               Mr.  Daru, the learned advocate for the  first               respondent  before us, has been  content  with               arguing  the  case  of  the  first  respondent               before  us on the basis of a corrupt  practice               being                715               committed  by  the Swatantra  Party  with  the               consent of the Swatantra Party candidate.   He               has  not  pressed the other  points  or  other               arguments  into  service.  The  matter  is  an               election matter and if we had found it  neces-               sary  we would have gone into  other  matters,               but  it is not necessary for us to do in  view



             of our decision that the election is liable to               be  declared  void by reason  of  the  corrupt               practice that has been committed at the  elec-               tion with the consent of the appellant  before               us." This is rather a curious observation to make in view of  the fact  that on all the other points the Tribunal  had  itself found  against  respondent No. 1 and respondent  No.  1  was content  to stake his case only on one point, and  that  is, the  one which ultimately found favour with the High  Court. It  is true that an election dispute is to a certain  extent different  from a private dispute between the parties  to  a lis  because  the constituency also comes into  the  picture and,  therefore, it is the duty of the Election Tribunal  to safeguard its interests and if corrupt practices are alleged against  any  candidate to enquire into them  and  ascertain whether the allegations have been substantiated.  Here,  the Tribunal’s  findings were that the other  corrupt  practices had  not been established.  Since Mr. Daru who appeared  for respondent  No.  1  did not even  seek  to  challenge  those findings  there was no further duty upon the High  Court  to examine  their  correctness.  Similarly, the  contention  of respondent  No. 1 to the effect that  certain  notifications were  invalid  was also negatived by the Tribunal  and,  Mr. Daru  did not want to challenge its decision.  The  question whether a particular notification is valid or invalid has no bearing  upon  the  question of  purity  of  elections  and, therefore,  if a party who raises a contention of this  kind does not propose to proceed with it, the matter is at an end and  neither  the Tribunal nor the High Court  is  bound  to enquire into it.  In this appeal, therefore, we will confine ourselves  only to two points-the first whether the view  of the High Court regarding the effect of the use of the Dhruva star  by the appellant is correct and the other whether  the nomination  of  the  second respondent as  a  candidate  was improperly accepted.               Section 123 of the Act sets out what shall  be               deemed   to  be  corrupt  practices  for   the               purposes of the Act.               Sub-section (3) thereof provides as follows               "  The following shall be deemed to be corrupt               practices for the purposes of this Act               716               (3)   The  appeal by a candidate or his  agent               or  by any other person with the consent of  a               candidate  or  his election agent to  vote  or               refrain  from  voting for any  person  on  the               ground of his religion, race, caste, community               or  language  or  the use of,  or  appeal  to,               religious symbols or the use of, or appeal to,               national symbols, such as the national flag or               the  national emblem, for the  furtherance  of               the  prospects  of the election of  that  can-               didate  or  for  prejudicially  affecting  the               election of any candidate." This provision thus deals with two matters: an appeal on the ground of religion, caste, etc., and the use of or an appeal to religious symbols, national symbols etc.  Resort to these practices   in  an  election  is  prohibited  by  it.    The allegation  here is that the appellant and his  agents  have contravened  the  provision  by the use of or  appeal  to  a religious  symbol.  The question is whether the Dhruva  star is  a ’religious symbol’.  As pointed out by this  Court  in Jagdev  Singh Sidhanti v. Pratap Singh Daulta & Ors.(1)  the question  has to be examined in two branches :  whether  the



symbol  used  has  any special  religious  significance  and whether its inscription on leaflets and pamphlets which were distributed amounts to the use of a religious symbol. If the Dhruva star has no religious significance, its use in the  manner made will not convert that use into a use  of  a religious  symbol.   The High Court has held that  it  is  a symbol of the Hindu religion.  If we find that no particular object  or creature could be regarded as a religious  symbol among Hindus, its use in an election will not be within  the prohibition enacted in s. 123 (3) of the Act.  For, it  must be borne in mind that the object underlying the  prohibition is stirring up religious sentiment by use of or appeal to  a religious  symbol.  If what is done does not tend to  arouse religious sentiment, S. 123(3) would not be transgressed. It is not disputed that the Election Commission has allotted star’  as  a  symbol to the Swatantra Party  which  had  put forward the appellant as its candidate.  Nor is it  disputed that in some of the leaflets and pamphlets distributed by or on  behalf  of  the appellant the  election  symbol  of  the Swatantra Party is described as the star Dhruva or the  Pole Star.  It is also not disputed that (1)  A.I.R. 1965 S.C. 183. 717 on  some pamphlets the following characteristics  associated with the star Dhruva are set out: "Dhruva means eternal. Dhruva means firm. Dhruva means guide. Dhruva means determined. Dhruva means one devoted to religion." In  Exhibit  63  which is the translation  of  the  Election manifesto,  of the appellant it is further said : "for  free religion, free agriculture and free commerce, vote for  none else but the ’Dhruvano Taro’ that is Swatantra Party, at the coming  elections."  Not  a single pamphlet  or  leaflet  is alleged  to have been distributed by or at the  instance  of the  appellant  in  which a direct appeal  is  made  to  the religious  sentiments of the voters.  The  short  question,. therefore,  is whether by describing the election symbol  as Dhruva star and by specifying its attributes, the provisions of sub-s. (3) of s. 123 could be said to have been violated. Let us first consider whether the mythological figure Dhruva has any significance in the, religious beliefs or  practices of  Hindus.  The High Court seems to have delved  deep  into the  Vishnu  Purana,  the Mahabharata and  the  Bhagwat  for digging  up  the  story  of  Dhruva  and  ascertaining   and describing  his qualities and particularly of his  steadfast devotion to the creator.  All that seems to us to have  been wholly  unnecessary because it leads us  nowhere.   Briefly, the  story  of Dhruva is that as a result of  his  steadfast devotion and complete surrender to God, Dhruva earned a boon and that was being accorded a unique place in the  firmament where  in  relation to the rest of the  sheller  bodies  his position is fixed.  According to the Puranas he was promised this  position till the destruction of the  universe.   This itself  shows  that  he  was not raised  to  the  status  of divinity, that is to say, he did not join the company of the 33  crore  deities  which are said  to  comprise  the  Hindu Pantheon.   How then can the association of Dhruva with  the star be regarded as an appeal to Hindu religious  sentiments ?  The  five qualities which are generally  associated  with Dhruva  are,  indeed,  noble  qualities  but  they  have  no significance  peculiar to Hindu religion.  The  significance of  these  qualities  to  the Hindus  would  be  in  no  way different from that to persons professing other religions or



systems  of  beliefs.  We do not think that  there  was  any justification  for  the High Court to, read  more  into  the symbol  used  by  the  appellant  than  what  it  apparently contains. 718 It  is true that during the wedding ceremony of a Hindu  the attention  of the bride and the bridegroom is drawn  to  the Dhruva  star and they are exhorted to be steadfast in  their loyalty  to  each  other as Dhruva was in  his  devotion  to Vishnu.   In  a  few other ceremonies also  the  example  of Dhruva  is cited or a reference to his qualities made.   But since  Dhruva  is  not regarded as a deity or  a  Godhead  a reference   to  him  cannot  be  said  to   have   religious significance  even  to  an orthodox  or  an  illiterate  and religiously minded Hindu.  It is said that the word  "Dharma priya",  a  quality of Dhruva mentioned in the  leaflet  and pamphlets, gives religious significance to the Dhruva  star. The  word ’Dharma’ can mean religion.  But it can also  mean ’duty’.   According  to the High Court it must be  taken  to mean  ’one  devoted to religion’ and for  arriving  at  this conclusion it has, as already stated, referred to the Vishnu Purana,  the  Bhagwat  and the  Mahabharata.   It  has  also referred  to  the evidence of a witness who  says  that  the Dhruva star is worshipped at the time of marriage and at the time  of  entry into a new house.  But all this  only  shows that  Dhruva was regarded as a great devotee of  Vishnu  and held in reverence by Hindus.  It clearly negatives the  idea of Dhruva being a Godhead.  Worship of mortals is so common, at  least in our country, that no one can  seriously  attach religious significance to it. Such worship has no connection whatsoever  with religion and is often motivated by fear  of authority  or  by  hone  of reward.  It  is  said  that  the remembrance  and repetition of Dhruva’s name  has  religious efficacy.   The  prevalence  of such a  belief  amongst  the Hindus  has not been established and therefore there  is  no basis  for saying that the mere mention of the  Dhruva  star will  arouse the religious sentiments of Hindus amongst  the electorate.   In Sidhanti’s case(1) earlier referred to  the use  of  pennants on which "Aum" or "OM" was  inscribed  was held  not to fall within the prohibition enacted in  S.  123 (3) of the Act upon the ground that "Aum" does not symbolise religion  or anything religious.  Undoubtedly it  has  great spiritual  or mystical significance.  For according  to  the Upanishads  it is from the primordial sound "Aum" that  this phenomenal  universe  was projected and that  this  universe exists  in  and ultimately dissolves in "Aum".  It  is  thus everything including God or Ishwara and the Supreme Brahman. Accordingly  "Aum" is sacred to the Hindus.  But this  Court has  held that even so, the use of pennants on  which  "Aum" was  inscribed  did  not amount to use of  or  appeal  to  a religious  symbol.   Much  less  can  the  distribution   of pamphlets on which a symbol  719 to  which no religious sanctity attaches be regarded as  use of or appeal to a religious symbol. As  already  stated,  the  Election  Commission  has  itself allotted  the symbol of star to the Swatantra Party.   Would it  be  turned into a religious symbol because the  star  is described in the leaflets as the Dhruva star ? In  Webster’s New Word Dictionary a symbol is described thus :  "something that  stands for or represents another thing; especially  an object  used to represent something abstract; emblem  :  as, the  dove is a symbol of peace, the cross is the  symbol  of Christianity." The star, standing by itself, was a symbol of the  Swatantra  Party.   Would it become  then  a  religious



symbol unless, like the cross, it is regarded as a symbol of Hindu  religion  when it is associated with Dhruva ?  It  is impossible  to  say  that any particular  object,  bird,  or animal  could  be  regarded  as  a  "symbol  of  the   Hindu religion".  The basic concept of Hindu religion is that  the supreme  being  is  in  every  "inanimate"  object,   plant, creature  or person, i.e., in the entire creation  and  that the  entire  creation  is within  the  Supreme  Being.   If, therefore,  according  to the fundamental concept  of  Hindu religion, God or Divinity is the reality or the substance of everything that exists, it would not be possible to say that any particular object is a symbol of the Hindu religion.  It is  true  that  various deities in the  Hindu  pantheon  are associated  with  some specific objects, birds  or  animals. Thus, for example, Shiva is associated with a trident and  a coiled  cobra round his neck; Vishnu is associated with  the cobra ’Shesha’ on which he reclines as upon a bed; the eagle is  associated  with  Vishnu as  his  vehicle;  the  goddess Lakshmi  is associated with lotus noon which she stands  and so on and so forth.  Does it mean then that if a person uses a  lotus or a cobra or a trident as his election  symbol  he will be appealing to the religious sentiments of the  people ? The answer must be clearly in the negative. What is a religious symbol has also been considered by  this Court in Shubnath Deogram v. Ram Narain Prasad & Ors.(1)  In that case the appellant who had been set up by the Jharkhand Party  had been elected to the Bihar  Legislative  Assembly. He  was  an Adibasi belonging to the Ho  community  and  the electorate   in  that  constituency  largely  consisted   of Adibasis  belonging  to  this community as well  as  to  two others,  Mundas  and Oraons.  The  Election  Commission  had allotted ’Cock’ as the emblem to the party.  Now, a cock  is not a religious symbol of Adibasis but it forms an  integral part  of the religious ceremonies which they  perform  while worshipping some of their deities.  The Jharkhand (1)[1960] 1 S.C.R. 953. 720 party  issued and distributed leaflets in verse  wherein  an appeal  was made by a cock for the votes of the  electorate. The majority of the Judges held that this leaflet  contained an  appeal to the voters on the ground of religion and  that the  appellant  was  guilty of a  corrupt  practice  falling within the purview of sub-s. (3) of S. 123 of the Act.   The conclusion of this Court was based not upon the mere fact of the  use  of the symbol of cock but it was  based  upon  the nature  of  the appeal for votes made by the cock.   In  the leaflet  -the  cock had said among other things :  "Give  me chara in the shape of voter I am victorious.  Do not  forget me,  otherwise I tell, your sons of men will suffer  eternal miseries."  According  to  this Court  this,  in  substance, amounted to saying that it would please the deities if  they did so because the cock in its turn was meant for  sacrifice to the deities and it would displease them if they did  not. The  case  is thus distinguishable from the one  before  us. Incidentally  we  may quote the  following  observations  of Subba Rao J., as to what, according to him, was meant by the expression Appealing to the religious sentiment.  At p.  965 he says :               "A  distinction  must,  therefore,  be   drawn               between canvassing on grounds of religion  and               seeking  of  votes in graphic  or  picturesque               language with analogies from religious lore  :               to  illustrate, a candidate may appeal to  the               electorate  consisting of  persons  professing               different religions, say Hindus,  Mohammadans,



             Christians etc., to vote for him and say  that               he  would sacrifice his life in the  cause  of               his  constituency just like Christ  sacrificed               his life to redeem the world.  He may also say               that  like  Rama,  the  virtuous,  who  killed               Ravana, the rakshasa, the embodiment of  evil,               he  would,  if elected, put  down  corruption,               nepotism  and the like in Government.  He  may               even say that he would sacrifice himself as  a               goat  before  Kali  to  bring  happiness   and               prosperity  to  his constituency.   All  these               similes  are drawn from religion, but they  do               not embody an appeal, directly or  indirectly,               to  vote  for  the  candidate  on  grounds  of               religion." We  have  quoted  the  learned Judge to  point  out  that  a reference  to prophets or religions or to deities  venerated in  a  religion  or to their qualities and  deeds  does  not necessarily  amount to an appeal to the religious  sentiment of the electorate.  Something more has to be shown for  this purpose  as indeed, according to the majority of the  Judges who  decided  the case, was established ,therein.   If,  for instance, the illiterate, the orthodox or the fanatical  721 electors are told that their religion would be in danger  or they  will  suffer miseries or calamities unless  they  cast their  vote for a particular candidate, that would be  quite clearly an appeal to the religious sentiment of the  people. Similarly  if  they are told that the wrath of God or  of  a deity  will  visit  them  if  they  do  not  exercise  their franchise in a particular way or if they are told that  they will receive the blessings of God or a deity if they vote in a  particular way, that would be an appeal to the  religious sentiment.  Similarly if they are told that they should cast their vote for a particular candidate whose election  symbol is  associated with a particular religion just as the  Cross is with Christianity, that will be using a religious  symbol for obtaining votes.  But where, as in the case of the Hindu religion,  it  is  not possible to  associate  a  particular symbol  with religion, the use of a symbol even when  it  is associated with some deity, cannot, without something  more, be regarded as a corrupt practice within the meaning of sub- s.  (3)  of s. 123 of the Act.  For instance,  a  particular object  or  a plant, a bird or an animal associated  with  a deity is used in such a way as to &how that votes are  being solicited  in  the name of that deity or as  would  indicate that  the displeasure of that deity would be incurred  if  a voter  does not react favourably to that appeal, it  may  be possible to say that this amounts to making an appeal in the name of religion.  But the symbol standing by itself  cannot be regarded as an appeal in the name of religion. How election literature should be construed has been  consi- dered by this Court in Kultar Singh v. Mukhtiar Singh.(1) In that  case  the  question  was  whether  upon  a  fair   and reasonable  construction,  a poster published by or  at  the instance  of an Akali candidate for election to  the  Punjab Legislative Assembly amounted to a corrupt practice under s. 123(3) of the Act.  In that poster it was said that at  this critical  juncture  it was the duty of the voters  who  were predominantly  Sikhs to keep high the honour of  the  Panth, not to criticise the weaknesses of the leaders of the  Panth and  to  defeat the opponents of the Panth  at  the  general elections.  This Court observed that the Akali Dal party was recognised  as  a  political  party  for  election  purposes notwithstanding  the fact that all of its members were  only



Sikhs.  Then it observed :               "So   long  as  law  does  not  prohibit   the               formation   of  such  parties  and   in   fact               recognises  them for the purpose  of  election               and parliamentary life, it would be  necessary               to remember that an appeal made by candidates-               of               A.I.R. 1965 S.C. 141.               722               such  parties  for votes may,  if  successful,               lead  to  their election and, in  an  indirect               way,   may   conceivably  be   influenced   by               considerations   of  religion,  race,   caste,               community or language.  This infirmity  cannot               perhaps  be  avoided so long  as  parties  are               allowed to function ’and are recognised though               their  composition may be predominantly  based               on  membership  of particular  communities  or               religions.    That   is  why  we   think,   in               considering  the  question  as  to  whether  a               particular  appeal made by a  candidate  falls               within  the  mischief  of  s.  123(3),  Courts               should  not be astute to read into  the  words               used  in the appeal anything more than can  be               attributed to them on its fair and  reasonable               construction.               purport  and  effect  determined  in  a  fair,               objective  and reasonable manner.  In  reading               such  documents,  it would be  unrealistic  to               ignore  the fact that .... the  atmosphere  is               usually surcharged with partisan feelings  and               emotions   and  the  use  of   hyperboles   or               exaggerated  language,  or  the  adoption   of               metaphors. and the extravagance of  expression               in attacking one another, are all part of  the               game;  and  so, when the  question  about  the               effect  of  speeches  delivered  or  pamphlets               distributed at election meetings is argued  in               the  cold  atmosphere of a  judicial  chamber,               some  allowance must be made and the  impugned               speeches  or  pamphlets must be  construed  in               that light." We  agree that election literature should neither be  judged strictly  nor  taken  literally.  All  the  greater  reason, therefore,  that the Courts ought not to read more  in  such literature  than  what  appears  on  its  face.   But  what, unfortunately, the High Court has done in the case before us is  to read more into the pamphlets than what they on  their face contain. As  far as we have been able to understand the  judgment  of Desai C.J. what he seems to say is this: that the Pole  Star must be equated with the devotion of Dhruva, that Dhruva was a  highly religious person, that when the leaflet  say  that Dhruva  stands  for five things it refer  to  his  religious qualities,  that such a reference would bring to the  mind’s eye  of the voter the religious virtues of Dhruva and  that, therefore, the symbol must be held to have been intended  to evoke  religious sentiments of the voters and  affect  their religious susceptibilities.  723 We  have  already  said what Dhruva  stands  for.   To  say, therefore,  that voters who saw or read these leaflets  were likely to conjure up in their minds the picture of a  highly religious person and, therefore, their religious  sentiments may have been aroused would be too far fetched a  conclusion



to be justified. We are, therefore, of the opinion that the High Court was in error  in  reversing the judgment of the  Tribunal  on  this point. Before  Mr. Patel referred to the finding of the High  Court regarding the validity of the second respondent’s nomination paper  Mr. S. T. Desai appearing for the appellant raised  a preliminary   objection  to  the  effect  that   the   first respondent was not competent to challenge the correctness of the finding as he had not preferred an appeal therefrom.  In support of the contention rerecord upon the decision of this Court in Vashist Narain Sharma v.  Dev  Chandra & Ors.  (1). That also was an appeal arising out of  an election  matter. Learned counsel for the respondent had tried to support  the decision  of  the Tribunal on grounds which had  been  found against  the appellant by the Tribunal.  This Court did  not permit him to do so on the ground that the provisions of the Code  of  Civil  Procedure have no  application  to  appeals brought by special leave under Art. 136 of the  Constitution and observed : "We  have no appeal before us on behalf of  the  respondents and we are unable to allow that question to be re-agitated." That judgment was relied upon on behalf of the appellant  in Sri Baru Ram v. Shrimati Prasanni & Ors.(2). Mr. Doabia  who appeared   there   for  the   respondents   challenged   the correctness of the earlier decision but this Court observed               "Prima facie there appears to be some force in               this  contention:  but  we  do  not  think  it               necessary to decide this point in the  present               appeal.  Mr. Aggarwal’s objection assumes that               respondent 1 should have preferred a  petition               for  special  leave  to  appeal  against   the               finding  of  the High Court on  the  issue  in               question; if that be so, the application  made               by  her’ for leave to urge additional  grounds               can  be converted into a petition for  special               leave to appeal against the said finding,  and               the  delay  made  in filing the  same  can  be               condoned." (p. 1417) (1) [1955] 1 S.C.R. 509, 519.   (2) [1959] S.C.R. 1403. Sup./65-3 724 It  is obvious that the Division Bench followed the  earlier Division  Bench only-because it has considered itself  bound by  it.   It  seems to us, with respect,  that  the  earlier decision  does  not  correctly  represent  the  true   legal position.  For, as soon as special leave is granted there is an appeal before this Court. and while dealing with such  an appeal  this Court exercises its civil jurisdiction.  It  is true that the rules framed by this Court in exercise of  its rule making powers do not contain any provision analogous to 0. XLI, r. 22 of the Code of Civil Procedure which permits a party to support the judgment appealed against upon a ground which  has  been found against him in  that  judgment.   The provision nearest to it is the one contained in 0. XVIII, r. 3 of the Rules of this Court which requires parties to  file statement of cases.  Sub-rule (1) of that rule provides that Part  1 of the statement of the case shall also set out  the contentions  of the parties and the points of law  and  fact arising in the appeal.  It further provides that in Part  II a party shall set out the propositions of law to be urged in support of the contentions of the party lodging the case and the  authorities in support thereof.  There is no reason  to limit  the provision of this rule only to those  contentions which deal with the points found in favour of that party  in



the  judgment appealed from.  Apart from that we think  that while  dealing with the appeal before it this Court has  the power  to  decide all the points arising from  the  judgment appealed  against  and  even in the absence  of  an  express provision like 0. XLI, r. 22 of the Code of Civil  Procedure it can devise the appropriate procedure to be adopted at the hearing.   There  could be no better way  of  supplying  the deficiency  than by drawn upon the provisions of  a  general law  like the Code of Civil Procedure and adopting  such  of those  provisions as are suitable.  We cannot lose sight  of the fact that normally a party in whose favour the  judgment appealed  from  has been given will not be  granted  special leave    to    appeal   from    it.     Considerations    of justice,therefore,   require  that  this  Court  should   in appropriate  cases permit a party placed in such a  position to  support  the judgment in his favour  even  upon  grounds which  were negatived in that judgment.  We are,  therefore, of  the opinion that in Vasisht Narain Sharma’s case(1)  too narrow  a view was taken regarding the powers of this  Court and  we  over-rule the preliminary objection of  Mr.  S.  T. Desai. In  so far as the age of the second respondent is  concerned the  High  Court has fully considered the evidence  and  has rightly (1)  [1955] 1 S.C.R. 509.  725 rejected  the  entries  in  the  birth  and  death  register maintained  by  the police Patel and  instead  accepted  the school  certificates pertaining to the second respondent  in which his date of birth is stated.  We need not say anything more  on this point as Mr. Patel, who appears for the  first respondent, has not seriously challenged the finding of  the High Court.  Upon this view we hold that no ground has  been made  out for setting aside the election of  the  appellant, allow the appeal, set aside the decisions of the High  Court and the Election Tribunal and dismiss the election  petition with costs throughout. Appeal allowed. 726