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PETITIONER: SHIV KIRPAL SINGH

       Vs.

RESPONDENT: SHRI V. V. GIRI

DATE OF JUDGMENT: 14/09/1970

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHELAT, J.M. BHARGAVA, VISHISHTHA MITTER, G.K. VAIDYIALINGAM, C.A.

CITATION:  1970 AIR 2097            1971 SCR  (2) 197  1970 SCC  (2) 567  CITATOR INFO :  E          1973 SC  38  (13)  RF         1984 SC 309  (37)  R          1986 SC1323  (32)  R          1987 SC1577  (25)

ACT: Presidential  and  Vice-Presidential  Election  Act  31   of 1952--Part  111  of Act whether ultra vires  Art.  71(1)  of Constitution  of India 1950  Election of  President  whether can  be challenged on grounds other than those mentioned  in s. 18-Validity of s. 5(2)Section whether ultra vires Art. 58 of  Constitution-Candidate  signing  his  nomination   paper before proposer or seconder-Nomination paper whether  liable to  be  rejected Validity of s. 21-Whether  section  suffers from  vice  of excessive delegation  of  legislative  power- ’Undue  influence’  in s. 18  meaning  of-Statements  within purview  of s. 171 G of Indian Penal Code whether  can  also fall  under s. 171C-Connivance by candidate of  exercise  of undue   influence  by  others,  proof-Material   effect   on election, proof-Bribery, evidence of. Costs-Election Petition-When costs may be refused. Presidential  and  Vice-Presidential Election  Rules,  1952- Validity  of Rules 4(1)and 4(2)-Requirement that  nomination paper  must  be accompanied by certified copy of  entry   in electoral roll relating to candidate, whether arbitrary  and unreasonable  and  ultra  vires  s. 21 of  Act  31  of  1952 -Validity  of  rr. 4(3) and  6(3)-Requirement  that  elector shall  not  subscribe whether as proposer or  seconder  more than   one  nomination  paper  at  any   election,   whether contravenes  s.  5(2) of Act 31 of 1952  Certified  copy  of electoral roll entry relating to candidate-Who can issue. Constitution  of India, 1950, Art. 58-Age of  candidate  for office  of President of India-Minimum age prescribed  as  35 years-Entry  in  electoral roll showing candidate’s  age  as above 35 years-Candidate’s own statement as to date of birth showing  he is below 35 years-Rejection of nomination  paper whether justified. Constitution, of India, 1950, Arts. 54, 367, 372 and  372-A- General  Clauses  Act,  s.  3(58)-Union  Territory   whether ’State’  within  meaning  of  Art.  54-Elected  members   of

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Legislatures  of Union Territories whether must be  included in Electoral College for election to office of President  of India.

HEADNOTE: The  election  to the office of President of India  held  in August 1969 was challenged in five election petitions  filed in   this   Court.   The  main  question  that   ’fell   for consideration  was whether the distribution of an  anonymous pamphlet  making  defamatory  statements about  one  of  the candidates  at  the election, in the manner alleged  by  the petitioners, amounted to exercise of undue influence  within the  meaning  of  s.  18  of  the  Presidential  and   Vice- Presidential  Election Act 31 of 1952 read with s. 171 C  of the  Indian  Penal Code.  In this connection the  Court  had further  to  decide whether the pamphlet was  published  and distributed by the winning candidate or with his connivance, by  his supporters, and whether the result of  the  election was materially affected by the publication and  distribution of the pamphlet in question.  The other questions of law  at fell  for consideration were (1) whether Part III of Act  31 of 1952 had 198 the  effect  of curtailing the jurisdiction  of  this  Court under Art. 71(1) of the Constitution and was therefore ultra vires,  (ii)  whether  an election under the  Act  could  be challenged on grounds other than those mentioned in s. 18 of Act 31 of 1952 which fell in Part III thereof; (iii) whether s. 21 of the Act was void because of excessive delegation of legislative  power; (iv) whether r. 4(1) was ultra vires  s. 21 and also void because it was    arbitrary             and unreasonable; consequently whether r.4(2)was void;(v)  whether the  prohibition  in  r. 4(3) on  an  elector  proposing  or seconding more than one candidate was ultra vires s. 5(2) of Act 31 of 1952; consequently whether s. 6(3) was void;  (vi) whether  nomination  paper  of one  of  the  candidates  was rightly   rejected  when  the  electoral  roll  showed   the candidate’s  age as above 35 years but the  candidate’s  own statement its to his date of birth showed that he was  below 35 years; (vii) whether certified copy of entry in electoral roll  relating to candidate must under the Rules  be  issued either   by  the  Electoral  Registration  Officer  or   the Assistant  Electoral Registration Officer; (viii) whether  a nomination   paper  signed  first  by  the   candidate   and thereafter by his proposer and seconder could be treated  as valid;  (ix)  whether  the elected  representatives  of  the Legislatures  of  Union  Territories  are  entitled  to   be included  in  the  Electoral College  for  the  election  of President  of  India on the footing that  the  word  ’State’ includes ’Union Territories’; (x) whether s. 5(2) of Act  31 of  1952  is ultra vires Art, 58 of the  Constitution;  (xi) whether   the  offence  of  ’bribery’  as  alleged  by   the petitioners  was  shown  to have been  committed  and  (xii) whether  in  the circumstances of the case costs  should  be awarded to the winning party.  Dismissing the petitions, HELD:     (A)  Per  Sikri,  Shelat  and  Vaidialingam,   JJ. (Bhargava  and  Mittee, JJ. dissenting) : (a)  Though  undue influence  for purpose of s. 123 the Representation  of  the People Act, 1951 has the same meaning as in the present  Act that section does not go as far as s. 18 of the present  Act so  as  to provide that even if it is committed by  a  third party that is to say not an election agent nor a person with the  consent of the returned candidate, the  election  would

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still be declared to be void provided it has been materially affected  by such undue influence.  From the fact that  both these  Acts were enacted by the same legislature and Act  31 of  1952 was passed after the Representation of  the  People Act  was  passed, it is clear that  Parliament  deliberately made  s. 18 stricter than the Representation of  the  People Act, firstly, by using the word "his consent" and  secondly, by  including undue influence committed even by  a  stranger having nothing to do with returned candidate as a ground for declaring  the  election to be void, the only  condition  in respect of such an Act being that it should have  materially affected  the election.  The object of doing so is  obvious. namely, that Parliament wanted to ensure that in respect  of an election for the highest office in the realm the election should  be  completely  free  from  any  improper  influence emanating  even  from a third party with whom  the  returned candidate  had no connection and without any  connivance  on his  part.  The only limitation placed in s. 18 is  that  in such  a case It has to be established that the election  was materially  affected The questions, therefore,  which  would arise  under  s. 18 would be: (1) Has the offence  of  undue influence  been committed ? (2) If so, was it  committed  by the returned candidate or by a person with his connivance  ? and (3) Even if the offence was committed by a stranger  and without  the connivance of the returned candidate,  has  the committal  of that offence by such "any  person"  materially affected the election? [222 E-223B] The argument that s. 171 C of the Indian Penal Code does not apply  to the first stage when the elector goes through  the mental  process  of  weighing merits  and  demerits  of  the candidates but only to the second stage when having made his choice he goes to cast his vote in favour of 199 the  candidate  of  his choice,  cannot  be  accepted.   The argument completely disregards the structure and  provisions of  s.  171C.  The section is enacted in three  parts.   The first  stage  contains the definition  of  undue  influence. This  is  in  wide terms and renders  a  person  voluntarily interfering  or  attempting  to  interfere  with  the   free exercise  of any electoral right guilty of committing  undue influence.   That  this  is very wide is  indicated  by  the opening  sentence of sub-s. (2) that is, "without  prejudice to  the generality of the provisions of sub-s. (1)".  It  is well  settled  that when it,,, expression is  used  anything contained in the provisions following this expression is not intended  to cut down the generality of the meaning  of  the preceding provision. [224 G-225 B] Kings emperor v. Sibnath Banerji [1945] F.C.R. 195, referred to. It  follows  that sub-s. (1) has to be looked at  as  it  is without  restricting its provisions by what is contained  in sub-s. (2).  Sub-s. (3) throws a great deal of light on this question.  It proceeds on the assumption that a  declaration of  public policy or a promise of public action or the  mere exercise  of a legal right can interfere with  an  electoral right,  and  therefore  it  provides that  if  there  is  no intention to interfere with the electoral right it shall not be  deemed  to be interference within the  meaning  of  this section.  Such a declaration of public policy or the promise of  public action can only act and tend to interfere at  the stage when a voter is trying to make up his mind as to which candidate he would support. [225 B-D] Sub-s. (3) further proceeds on the basis that the expression "free exercise of the electoral right" does not mean that  a voter  is  not to be influenced. This expression has  to  be

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read  in the context of an election in a democratic  society and  the candidates and their supporters must  naturally  be allowed  to  canvass  support by all  legal  and  legitimate means.   This  exercise of the right by a candidate  or  his supporters to canvass support does not interfere or  attempt to interfere with the free exercise of the electoral  right. What does however attempt to interfere with the exercise  of an  electoral  right  is "tyranny over the  mind".   If  the contention of the respondent was to be accepted it would  be quite  legitimate  on  the  part of  the  candidate  or  his supporters  to hypnotise a voter and then send him to  vote. At the stage of. casting his ballot paper there would be  no pressure cast on him because his mind has already been  made up for him by the hypnotiser.[225-E-G] From  a  reading of s. 171G it is clear that in  pursuit  of purity of elections the legislature frowned upon attempts to assail such purity by means of false statements relevant  to the personal character and conduct of the candidate and made such  acts punishable thereunder.  But the fact that  making of such a false statement is a distinct offence under s. 171 G  does not and cannot mean that it cannot take  the  graver form of undue influence punishable under s. 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 falls  under  s. 171C  or  s.  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 Linder s. 171F read with s. 171C. [225 D-G] 200 The above view is supported by the statement of objects  and reasons  attached to the bill which ultimately  resulted  in the enactment of Ch.  IXA of the Indian Penal Code, and by a number  of decisions given on similar statutory  provisions. [226 B-H] Amritsar  City  (Mohammadan)  Constituency  Case  No.  2-The Indian  Election  Cases (1935-50) Dobia  Vol.  11,  150-157; Jujhar  Singh v. Bhairon Lal 7 E.L.R. 457,  461;  Radhakanta Mishra  v. Nityanand Mahapatra, 19 E.L.R. 203,  and  Baburao Patel v. Dr. Zakir Husain, [1968] 2 S.C.R. 133, 145. referred to. (b)  On  the evidence in the case it must be held  that  the pamphlet  in  question was distributed by post  and  in  the Central Hall of Parliament by some members of Parliament and there was wide discussion about it in the Central Hall.  The allegations in the pamphlet, made against one of the  losing candidates  were covered under s. 171C I.P.C. even  if  they may be covered under s. 171G. [231 F; 257 B] The argument that the pamphlet could not come under s.  171C because  it was anonymously distributed was  fallacious.   A series  of anonymous attempts in a country like  ours  would have  as  much  if not more, effect  as  one  open  powerful attempt.   It would be dangerous to provide a sanctuary  for anonymous  attempts.  Moreover, when members  of  Parliament distribute  a pamphlet in the Central Hall it has  the  same effect as if they had endorsed the pamphlet in writing. [231

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H] Accordingly  it  must be held that the distribution  of  the pamphlet  by post as also distribution in the  Central  Hall constituted  an attempt to interfere with the free  exercise of the right of vote-within S. 18 of the Act. [232 C] (c)  There  was  however  no  evidence  to  show  that   the respondent had any connection with the pamphlet or with  its distribution.   Nor  was  there any evidence  to  show  that anyone connected with the distribution either through  the post  or  in  the  Central Hall had  any  contact  with  the respondent, or that he distributed it with his knowledge  or connivance. [257 D-E] (d)  It is well settled that the burden of proving that  the result  of the election has been materially affected  is  on the  petitioners.   As  held  by this  Court  in  Samant  N. Balkrishna v. George Fernandes, the matter cannot be decided on  possibility or reasonable judicial guess.  There was  no justification for over-ruling that decision. [265 D-266 C] Vashist Narain v. Dev Chandra, [1955] 1 S.C.R. 509,  Mahadeo v.  Babu  Udai Pratap Singh, A.I.R. 1966  S.C.  824,  Paokai Haikip  v.  Rishang C.A. No. 683/1958  dt.  12-8-1968,  G.K. Samal v. R. V. Rao, C.A. No. 1540/69 dt. 20-1-1970, Surendra Nath Khosla v. Dalip Singh, [1957] S.C.R. 179, relied on. Samant  N. Balkrishna v. George Fernandes, A.I.R. 1969  S.C. 1201, reaffirmed. On the evidence in the present case it was difficult to hold that  the  petitioners had proved that the  publication  and distribution of the pamphlet materially affected the  result of  the election.  It only leads to the conclusion  that  it probably  did have some effect but the vast majority of  the electors  were able to throw off the effect of the  pamphlet and  vote according to their own personal wish or  according to the mandate of their party. [269 B-C] 201 Per  Bhargava,  J. : Sub-section (1) of s. 171C  in  general terms makes any act an ’undue influence’ if it interferes or attempts  to  interfere  with  the  free  exercise  of   any electoral  right  and if it is committed  voluntarily.   The electoral right according to the definition in s. 171A(b) is the right of a voter to vote or refrain from voting.   Undue influence can be held to be committed if the person  charged with  the offence interferes or attempts to  interfere  with the free exercise of this right of voting or refraining from voting.   When an elector exercises the right of  voting  it can be envisaged that he goes through the mental process  of first  taking  a decision that he will vote in favour  of  a particular  candidate  and thereafter, having  made  up  his mind,  he  has to go and exercise that  electoral  right  by casting  the vote in favour of the candidate chosen by  him. The  language used in s. 171C indicates that the offence  of undue  influence  comes  in at the  second  stage  when  the offender interferes or attempt-, to interfere with the  free exercise  of  that choice of voting in accordance  with  the decision already taken by the voter.  It, therefore, follows that  if any acts are done which merely influence the  voter in making his choice between one candidate or another,  they will  not amount to interference with the free  exercise  of the electoral right.  In fact all canvassing that is carried on  and  which  is  considered  legitimate  is  intended  to influence the choice of a voter at the first stage and  that is quite permissible.  Once the choice has been made by  the voter,  there  should  be  no  interference  with  the  free exercise by him of that choice by actually casting the vote, or  in the alternative there may be cases where a voter  may decide  that he will not vote for any candidate at  all  but

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some acts are done which compel him to cast his vote.  It is in  such cases that the offence of undue influence  will  be held to have been committed. The  language  used  in the definition  of  undue  influence implies  that an offence of undue influence will be held  to have  been committed if the elector having made up his  mind to  cast  a vote for a particular candidate does not  do  so because ’of the act of the offender, and this can only be if he is under the threat or fear of some adverse  consequence. Whenever any threat of adverse consequences is given it will tend  to  divert  the elector  from  freely  exercising  his electoral  right by voting for the candidate chosen  by  him for  the purpose.  In a case where the voter  is  threatened with  an injury as defined in the Indian Penal Code, it  has to  be deemed under s. 171C (2) (a) that it interferes  with the  free exercise of the electoral right of the  voter  and the  same  applies if the elector is induced or  attempt  is made to induce him to believe that he or any person in  whom he  is interested will become or will be rendered an  object of  divine displeasure or of spiritual censure.  There  can, however,  be cases where the threat may not he of an  injury as  defined in s. 44 I.P.C., where the harm caused  must  be illegal. [320 H-321 C] Mere  propaganda  against a candidate cannot be held  to  be exercise  of undue influence.  The word free is used  in  s. 171C I.P.C. as qualifying ,exercise’ and not as ’qualifying’ the  word ’vote’.  If undue influence bad been  interference with  the  exercise of free vote,  possibly  the  definition could  have  been  construed as  indicating  that  influence brought on the mind of a voter so as to change the manner of his voting by affecting his choice and judgment in selecting the candidate for whom he is going to cast his vote would be comprised within undue influence.  The word free having been used as qualifying the word ’exercise’ gives the  indication that the freedom envisaged is to cast the vote in accordance with  the choice already arrived at and. if such freedom  of casting  the  vote  in that manner is  interfered  with  the offence  of  undue  influence  will be  held  to  have  been committed. [322 A-C] The subject of influence at the stage of making a choice was dealt with 202 in  Ch.  IXA of the Indian Penal Code under a  separate  and distinct  provision  which is contained in  s.  171G.   This section  clearly  recognises, that, at elections,  there  is bound  to  be  propaganda  in  which  candidates  or   their supporters may be issuing statements so as to influence  the voters  against  their rival candidates, and it  limits  the prohibition  by law to only those statements of  fact  which are  false, or believed to be false, or believed not  to  be true,  in relation to the personal character or  conduct  of any  candidate.  These false statements about  the  personal character  and  conduct of the candidate may  of  course  be scurrilous  and foul, but even then, the  offence  committed would  fall  under s. 171G I.P.C. which  makes  the  offence punishable  with  the  fine only.  On, the  other  hand,  an offence of undue influence as .defined in s. 171C I.P.C. has been made punishable under s. 171F I.P.C. with  imprisonment of  either  description for a term which may extend  to  one year  or with fine, or with both.  If it is held that  false propaganda  against  personal  character  or  conduct  of  a candidate can amount to undue influence the person indulging in  that propaganda would become liable to punishment  under s.  171F  I.P.C. which has been considered  a  more  serious

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offence  by  being  made  punishable  with  imprisonment  in addition  to,  or,  in  the  alternative  with  fine.   This interpretation  would  thus  make S.  171G  I.P.C.,  totally ineffective  and  otiose.   If the false  statements  as  to personal  character  or conduct are held  to  be  punishable under   s.  171F  as  constituting  the  offence  of   undue influence,  there would be no point in prosecuting the  same person  for the less serious offence under s. 171G. [323  C- 324 A] In  the Representation of the People Act, 1951  also,  undue influence  is ,defined in almost the same language  as  that contained in s. 171@C ]I.P.C. In that Act an election can be declared  void not only on the ground of commission  of  the corrupt practice of undue influence, but also on the  ground ;of  publication  of  false propaganda as  to  the  personal character  or conduct of a candidate.  Parliament,  however, chose  not to include any such provision in Act 31  of  1952 which was passed when the Representation of the People  Act, 1951  had already been enacted and enforced.   The  omission may  be deliberate or accidental but, in either case, it  is not  for  the  court  to attempt to  fill  up  this  gap  by enlarging  the meaning to be given to the expression  ’undue influence, which is the corrupt practice included in the Act as  a  ground for setting aside the election.  It  is  clear from  the scheme of Ch.  IXA of the Indian Penal  Code  that false propaganda as to the personal character and conduct of a  candidate  was  created as a  separate  offence  and  the definition  given in s. 171C of undue influence was not  in- tended  to  lay  down that such propaganda  will  amount  to interference with the free exercise of electoral right so as to constitute undue influence. [324 F-325 A] Case law referred to. (b)  In  the  present case the contents of the  pamphlet  in question did not contain any threat of a nature which  would constitute undue influence as explained above.  But even  on the  assumption that the publication of this pamphlet  could constitute  undue influence the election of  the  respondent was  not  liable  to be set aside because it  had  not  been proved that the distribution by post or in the Central  Hall of  Parliament was with connivance of the respondent or  had materially affected the result of the election. [337 B-F] Per  Mitter, J.-The only difference between the Act of  1951 and  the Act of 1952 lies in the fact that under the  latter Act  corrupt practice of bribery and undue influence by  one who  was not a party to the election or his agent  are  also brought in.  But the nature and character of undue influence under  both the Acts remains the same.  There is  no  reason for  taking the view that what would not be undue  influence under the Act of 1951 can become one under the Act of  1952. [354 F-G] 203 If  publication  of  any defamatory  matter  relating  to  a candidate  was  to,  be  treated as  a  direct  or  indirect interference or an attempt to interference with the exercise of  any electoral right-under the wide words of s.  171C(1), there  would  have been no occasion for the  legislature  to provide  for  it separately under s. 123(4) of  the  Act  of 1951.  The same position would obtain under the Act of 1952, and before any publication of defamatory matter relating  to a  candidate can be treated as commission of the offence  of undue influence there must be some overt act in addition  to the mere publication, some attempt or persuasion of a  voter to  restrain the free choice of a candidate before, the  law of undue influence is excited. [354H-355B] The decided cases are sufficient to reject the  respondent’s

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contention  that  in under to establish undue  influence  it must  be shown that there was .some threat to a voter or  at least  an element of complusion in the appeal to  him.   The cases also show that it would. be futile to. attempt to  lay down  a  simple  test applicable to all sets  of  facts  and circumstances where undue influence is alleged to have  been exercised.   It can however be said that an attempt  on  the part of anybody to deflect a voter’s will away from a parti- cular candidate by creating prejudice against or hatred  for him,  as  for instance by casting false  aspersions  on  his personal conduct and character whether by spoken words or in writing  may be sufficient for the purpose  of  establishing the  commission of undue influence., Much would however  de- pend  on  the  nature of the attempt, the  position  of  the person  making it, and the manner in which it is made.   The mere  publication  by postal despatch of  an  anonymous  but scurrilous pamphlet relating to the personal character of  a candidate  to  voters  all  and  sundry  might  attract  the operation of s. 171G of the Indian Penal Code but would fall short  of s. 171C.  But if such a pamphlet is  pressed  upon voters and methods of inducement applied to them,  specially by  others  who  are equally  interested  in  the  election, different  considerations may well arise.  In such a case  a court of law may legitimately hold that the disseminators of the  pamphlet were attempting to canalise or force the  will of others away from the person whose character was assailed. [263 B-F] Case-law referred to. (b)  There can be no doubt that a charge of undue  influence is in the nature of a criminal charge and must be proved  by cogent  and  reliable  evidence not on the  mere  ground  of balance of probability but on reasonable certainty that  the persons charged therewith have committed the offence, on the strength  of evidence which leaves no scope for doubt as  to whether  they  had done so.  Although the  re  are  inherent differences  between the trial of an election  petition  and that  of a criminal charge in the matter  of  investigation, the  vital point of identity for the two trials is that  the court  must  be able to come to the  conclusion  beyond  any reasonable  doubt  as  to  the  commission  of  the  corrupt practice.   However  onerous the task of the  court  may  be because  of the partisan nature of the witnesses  it  cannot reject the oral evidence adduced merely on that ground,  but it  has to examine the same carefully and come to a  conclu- sion  whether the evidence establishes the corrupt  practice beyond reasonable doubt.  Even in a criminal trial the court can  hold  a  person guilty of a crime on  the  strength  of evidence  of  partisan  witnesses if they are  found  to  be reliable although there may be no independent corroboration thereof and    there  is  no  reason  to  depart  from  that principle in the trial of an election   petition       where charges of offences culpable under the Indian Penal Code are levelled. [366 F-367 G] Case-law  referred to. (b)  In  the present case although the pamphlet in  question was  defamatory,  the evidence fell short  of  any  personal appeal through the means of the pamphlet and it could not be held that the offence of undue influence 204 distribution  may attract culpability under s. 171G  of  the Indian Penal Code but would not per se attract s. 171C. [380 D] (b)  Per   Bhargava,   J.   (Sikri,   Shelat,   Mitter   and Vaidialingam, JJ. concurring) : The contention that Part III of the Act is ultra vires  Art.

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71 (1) of the Constitution on the ground that it purports to curtail  the jurisdiction conferred on the Supreme Court  to enquire into and decide all doubts and disputes arising  out of  or  in connection with the election of  a  President  or Vice-President  by laying down certain limitations  such  as the grounds on which only the election of a President may be challenged  in an election petition, cannot be accepted.   A similar  contention was rejected by this Court in Dr. N.  B. Khare’s case.  Even if it is accepted that Art.- 71(1)  lays down  the jurisdiction of the Supreme Court, the  manner  in which  that  jurisdiction  is to be exercised  can  only  be regulated by an Act of Parliament passed in exercise of  its power  under  Art.  71(3).   In exercise  of  the  power  to regulate  all  matters  relating to or  connected  with  the election  of  a  President  or  Vice-President,   Parliament clearly  had the power of laying down the grounds  on  which the election can be challenged and set aside, in addition to other matters relating to the election. [295 B-297 B] Dr.   N.  B. Khare v. Election Commission of  India,  [1958] S.C.R. 648, applied. The  fact  that  Art. 71(1) does  not  contain  a  provision corresponding  to  that in Art.  329(b)  which  specifically mentions  a law made for calling in question an election  by an  election  petition, could not lead to  an  inference  in support  of the petitioner’s argument.  Article 329(b) is  a provision  which  lays down a limitation on  the  manner  in which  an  election  can be called in  question,  while  the procedure  for calling in question the election, as well  as the grounds on which the election can be called in question, can  only be laid down by Parliament by a law  passed  under Art.  327.  In the case of Art. 71, it appears that no  need was  felt of making a provision similar to Art. 329(b)  when Mt.  71(1) itself laid down the limitation that  all  doubts and  disputes  arising  out of or  in  connection  with  the election of a President or Vice-President are to be inquired into  and decided by the Supreme Court whose decision  shall be final. [297 C-G] (ii) On the above finding that Part III is not ultra  vires, the  contention  that  the  petitioners  were  entitled   to challenge the election on grounds other than those mentioned in s. 18 of the Act, must also fail. 1315 HI (iii)     The power of making rules conferred on the Central Government by s. 21 of the Act is subject to two  principles of  guidance.   One is that the rules are to be  made  after consulting  the Election Commission, and the second is  that the  Rules must be such as are needed for carrying  out  the purposes  of the Act.  Such power being already  limited  by the  purposes  of the Act cannot be held to be  unguided  or even arbitrary, even though Parliament did not choose to lay down  the requirement that the Rules framed must be laid  on the  table  of the two Houses of Parliament  and  should  be subject  to  modification  or annulment  within  a  specific period.  in  fact,  Parliament all the  time  has  power  of altering  the  Rules by amending the Act itself in  case  it disapproves  any of the Rules made by the Government,  while any Rule, which is shown to have been made in  contravention of the provisions of the Act, would be declared void by  the Court not on the ground that there was excessive  delegation of  legislative power, but that it goes beyond the scope  of the power conferred 205 on the Government under s. 21 of the Act.  Section 21 of the Act cannot therefore be held to be void on any ground.  [298 B-G] (iv) The contention that r. 4(1) of the Presidential & Vice-

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Presidential  Rules 1952 is beyond the rule making power  of the  Government  under s. 21 of the Act 31 of  1952  has  no force.  Clause (d) of subs. (2) of s. 21 lays down that  the Rules  made  under  that section  may,  in  particular,  and without  prejudice  to the generality of the  power  granted under  sub-s. (1), provide for the form and manner in  which nominations may be made and the procedure to be followed  in respect  of the presentation of nomination papers;  and  the requirement that a certified copy of the entry showing  that the   candidate  being  nominated  is  an  elector   for   a Parliamentary constituency which alone makes him eligible to stand  as a candidate for the office of President  or  Vice- President must accompany the nomination paper falls squarely within this clause.  This requirement relates to the  manner of   proving  that  the  candidate  is  an  elector   in   a Parliamentary constituency.  In any case, this provision  in r.  4(1)  would  be fully covered by s.  21(1)  of  the  Act inasmuch  as the requirement is for no other purpose  except of  ensuring a smooth and proper election to the  office  of President or Vice-President which object can be achieved  by enabling  the Returning Officer to ensure  that  candidates, whose  nominations  are accepted by him,  are  eligible  for election. [299 C-F] Ranjit  Singh  v. Pritam Singh & Ors. [1966]  3  S.C.R.  543 applied. The election to the office of a President or  Vice-President may  not  coincide with or be very close to  the  time  when there  is general revision of the electoral rolls,  so  that the  electoral roll printed or published nearabout the  time of  general  election,, may be out of date by the  time  the election for the office of a President or Vice-President  is held.   The  publishes  electoral  roll  may  therefore   be misleading if it is allowed to be filed before the Returning Officer to show eligibility in the case of a Presidential or Vice-Presidential election.  That seems to be the reason why r.  4(1) lays down that a certified copy of the entry  alone will  be  the  proper manner  of  satisfying  the  Returning Officer  of the eligibility of the candidate.  The  rule  is therefore neither arbitrary nor unreasonable. Accordingly  r.  4(1) must be held to be valid.   Rule  4(2) which prescribes the consequence for non-compliance with the requirement  of r. 4(1) must also be held to be valid as  it is intended merely to make the valid r. 4(1) effective. [301 F] (v)  The   submission  that  s.  5(2)  should  be  read   as conferring  any  right  either on the candidate  or  on  the electors  in respect of signing of nomination papers  cannot be accepted.  Had there been an intention to confer a  right on any of them the language would have been different giving such  indication by laying down what the candidate  and  the electors  are  entitled  to do in respect  of  a  nomination paper.   Obviously,  s.  5  only  lays  down  the  essential ingredients  of  the  process  of  nomination,  leaving  the details of the manner of nomination to be filled up by Rules made  by the Government under s. 21 of the Act.   Rule  4(3) which  requires that no elector shall subscribe  whether  as proposer or seconder, more than one nomination paper at  any election, is thus, supplementary to s. 5(2) as containing  a more  detailed direction in respect of filing of  nomination papers. [302 D-303A] The  fact that there is no ban in s. 5(2) of the Act  on  an elector signing more than one nomination paper as a proposer or a seconder does not, therefore, mean that r. 4(3) of  the Rules could not have been 206

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competently made by the Government Rule 4(3) on the face  of it  contains a very reasonable direction.  If there is  only one vacancy for which election is to be held, an elector can reasonably  be  expected to nominate only one  candidate  as proposer and put him forward before the other electors as  a suitable  person to be chosen.  Similarly, when seconding  a nomination  paper, an elector indicates his  preference  for that  candidate to the general electorate which is  to  cast votes at the election.  If the indication of such choice  is restricted to as many candidates as there are vacancies, the provision  is, on the face of it salutary and  conducive  to proper election. [303 H-304 B] The historical background of the Rules relating to elections in  India  also bears out that such a provision  has  always been  considered desirable.  A similar provision  exists  in the Rules governing elections in England. [304 C-305 D] In  the  circumstances it must be held that r. 4(3)  of  the Rules was validly made by the Government in exercise of  its rule  making power under s. 21 of the Act; that  Rule  being valid r. 6(3) (c) of the Rules which is consequential,  must also be held to be valid. [305 H] Amolak  Chand  v.  Raghuvir  Singh,  [1968]  3  S.C.R.  246, referred to. (vi) The entry in the electoral roll showing a candidate  as being  above  35  years of age has  little  value  when  the candidate’s own statement to the Returning Officer as to his date  of birth shows that he is below 35 years of age.  [306 E-F] (vii)     There is nothing in the Rules framed under the Act or  under  the Representation of the People  Act,  1950  and Rules framed thereunder, requiring that a certified copy  of the  electoral roll must necessarily be issued by either  an Electoral  Registration  Officer or an  Assistant  Electoral Registration  Officer.   Every government servant,  who  has custody  of  a  document, is competent  to  issue  certified copies of that document. [308 B] (viii)    When  the  Act  was enacted in 1952,  the  law  in India,  as administered by various Election  Tribunals,  was clear  that  the  order in which signatures are  made  on  a nomination  paper  by  the candidate the  proposer  and  the seconder  is  immaterial and no nomination  paper  would  be invalid  it the signatures are made by the candidate  before the pro-Act must    be  presumed to know that this  was  the law as interpreted in India and    consequently,  when   the language  incorporated  in s. 5(2) of the Act was  used,  it must have been intended that nomination papers would not  be invalid  by  reason of the candidate  making  his  signature before the proposer and the seconder. [312 C-E] Therefore, in the present case, the nomination papers of the candidate  who  signed  his  nomination  paper  before   the proposer and the seconder as well as those of the  candidate who  signed his nomination paper before his  seconder,  were rightly accepted, [312 F] Case-law referred to. (ix) The argument that the definition of ’State’ in s. 3(58) of the General Clauses Act includes Union.  Territories  and therefore the elected members of the Legislative  Assemblies of  the  Union Territories are also to be  included  in  the Electoral College, must be rejected. [313 D-E] It  is  true that under Art. 367, the General  Clause,;  Act applies for interpretation of the Constitution as it applies for the interpretation of ,in Act of the Legislature of  the Dominion of India but that Act has been applied as it  stood an 26th January, 1950 when the Constitution 207

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came  into  force  subject  only  to  any  adaptations   and modifications that may be made therein under Art. 372.   The General Clauses Act as it was defined State so as to include a  Union Territory.  This was done by Art. 372 A  which  was introduced by the Constitution 7th Amendment Act, 1956.  The new  definition of State in s. 3(5) of the  General  Clauses Act  as a result of the modifications and adaptations  under Art. 372(A) would, no doubt, apply to the interpretation  of all   laws  of  Parliament  but  it  cannot  apply  to   the interpretation of the Constitution because Art. 367 was  not amended  and it was not laid down that the  General  Clauses Act  as  adapted and modified under any Article  other  than Art.  372  will  also apply to  the  interpretation  of  the Constitution since its amendment in 1956.  Since, until  its amendment in 1956, Section 3(58) of the General Clauses  Act did  not define ’State’ as including Union  Territories  for purposes of interpretation of Art. 54, the Union Territories cannot be treated as included in the word ’State. [313 E-314 B] Further   the  members  of  Houses  known   as   Legislative Assemblies  under Art., 168 can be members of the  Electoral College under Art. 54. in the case of Union Territories  the provision  for  legislatures is contained in Art.  239A  but that  Article  does  not  mention  that  any  house  of  the legislature created for any Union Territories will be  known as Legislative Assembly.  All that that Article lays down is that Parliament may by law create a body whether elected  or partly  nominated  or  partly  elected  to  function  as   a Legislature  in  the Union Territory.   Such  a  Legislature created  by  Parliament is not a,  Legislative  Assembly  as contemplated  under  Art.  168  or  Art.  54.   Members   of Legislatures  created for Union Territories under Art.  239A cannot,  therefore  be  held to be  members  of  Legislative Assemblies   of  States.   They  were,  therefore,   rightly excluded from the Electoral College. [314 C-E] (x)  On the face of it the argument that s. 5(2) of the  Act contravenes Art. 58 or any other Article of the Constitution has  no  force  at  all.   The  requirement  laid  down   by Parliament  that  every  person must  be  nominated  by  two electors   as   proposer  and  seconder  is   a   reasonable requirement relating to regulation of election to the office of  President and cannot be held to be a curtailment of  the right  of a candidate to stand as candidate under  Art.  58. [315 E] (xi) If  in  fact a licence had been granted  to  a  private limited  company with the specific purpose of obtaining  the vote   of  an  electors  for  the  respondent,  that   could constitute  bribery.  However from the evidence led on  this issue on behalf of the petitioners themselves no case at all of commission of the offence of bribery during the  election period could possibly be established. [316 G-H] (C)  Per  Sikri, Shelat and Vaidialingam, JJ. (Bhargava  and Mitter,  JJ.  Concurring)-The parties must  bear  their  own costs.,  The pamphlet had been sent by post and  distributed in  the Central Hall and this justified the  petitioners  in bringing the two main petitions.  Most of the evidence which was led in court dealt with the question of the distribution of  the  pamphlet.  Further, a number of witnesses  had  not told  the  whole truth.  It was distressing  to  see  truths being sacrificed at the altar of political advantage by these witnesses. [288 B-C]

JUDGMENT:

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ORIGINAL JURISDICTION,: Election Petitions Nos. 1 and 3 to 5 of 1969. Petitions  under  Part  III of the  Presidential  and  Vice- Presidential Elections Act, 1952. 308Sup.CI/71 208 M.   S.  Gupta,  K.  C.  Sharma,  K.  L.  Rathi  and  C.  L. Lakhanpal, for the petitioner (in E.P. No. 1 of 1969). person (in E. P. No. 3 of 1969). K.   C. Sharma, K. L. Rathi, C. L. Lakhanpal, S. K. Dhingra and M.    S.  Gupta, for the petitioners (in E.P. No.  4  of 1969). S.   C.  Malik,  M.  S.  Gupta and  K.  L.  Rathi,  for  the petitioners (in E.P. No. 5 of 1969). C.   K. Daphtary, D. Narsaraju, Mohan Kumaramangalam, S.  T. Desai, S. K. Dholakia and A. S. Nambiar, for the  respondent (in E.P. No. 11, 1969). Jagadish  Swarup,  Soliciter-General, L. M. Singhvi,  R.  H. Dhebar and S. P. Nayar, for respondent No. 1 (in E.P. No.  3 of  1969)  and  the  Attorney-General  for  India,  Election Commission  of  India and  Returning  Officer,  Presidential Election (in E.Ps. Nos,, 3 to 5 of 1969). C..  K. Daphtary, D. Narsaraju, Mohan Kumaramangalam, A.   S.; Nambiar  and S. K. Dhclakia, for respondent No. 2  (in  E.P. No. 3 of 1969). C.   K.  Daphtary, D. Narsaraju, S. T. Desai, Mohan  Kumara. mangalam,   H.  K.  L.  Bhagat,  S.  K.  Dholakia,   J.   B. Dadachanji,  Ravinder  Narain  and O.  C.  Mathur,  for  the respondent (in E.Ps. Nos.     and 5 of 1969). Jagadish  Swarup,  Solicitor-General, L. M. Singhvi,  S.  P. Nayar,  R.  H.  Dhebar and Lily Thomas,  for  the  Attorney- General   for  India,  Election  Commission  of  India   and Returning Officer, Presidential Election (in E. P. No. 1  of 1969). The Judgment of S. M. Sikri, J. M. Shelat and C. A.  Vaidia- ingam  JJ-  was  delivered by Sikri,  J.  Bhargava,  J.  and Mitter, J. gave separate opinions. These  four  election  petitions filed under s.  14  of  the Presidential a Vice-Presedential Election Act (XXXI of 1952) (hereinafter  referred,to  as the Act), and Art. 71  of  the Constitution   of  India  challenge  the  election  of   the respondent  Shri V. V. Giri, to the office of the  President of  India.   The petitioner in Election Petition  No.  1  of 1969,  Shri  Shiv  Kirpal  Singh, was  a  candidate  in  the election, and so was the petitioner in Election Petition No. 3,  Shri  Phul,  Singh..  The  nominations  of  both   these petitioners   were  rejected  by  the   Returning   Officer. Election Petition No. 4 was filed by Shri N. Sri Rama Reddy, M.P., and twelve other electors, all members of  Parliament. Election Petition No. 5 was filed by Shri Abdul’ Gbani  Dar, M.P., and nine other members of 209 Parliament  and eight members of Legislative  Assemblies  of Haryana,  Madhya Pradesh and Bihar.  Shri V. V. Giri is  the sole respondent in Election Petitions Nos. 1, 4 and 5  while in  Election Petition No. 3 he was impleaded  as  respondent No.  2 and Union of India, through the Election  Commission, was impleaded, as respondent No. 1. After  the  sad demise of the then President of  India,  Dr. Zakir  Hussain,  on  May 3, 1969,  the  Election  Commission issued a notification under s. 4 of the Act appointing  July 24, 1969, as the last date for filing the nomination papers, July  26, 1969, as the date for scrutiny of  the  nomination papers,  and July 29, 1969, as the last date for  withdrawal of  nomination  papers.  Polling was fixed  for  August  16,

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1969.  24 nomination papers were filed before the  Returning Officer.  On scrutiny which took place on July 26, 1969, the Returning  Officer rejected 9 nomination  papers,  including the nomination papers of Shri Shiv Kirpal Singh,  petitioner in Election Petition No. 1, and Shri Phul Singh,  petitioner in  Election  Petition  No. 3. He  accepted  the  nomination papers   of  15  candidates.   No  candidate  withdrew   his nomination by the due date.  Counting of votes took place on August  20,  1969,  when the result was  announced  and  the respondent, Shri V. V. Giri, was declared elected. The election was sought to be challenged on various  grounds in  these  election petitions.  Some of these  grounds  were common. The grounds may be broadly formulated as follows               (1)   That the nomination papers of Shri  Shiv               Kirpal  Singh, Shri Charan Lal Sahu  and  Shri               Yogi   Raj  were  wrongly  accepted   by   the               Returning Officer;               (2)   That the nomination papers of Shri V. V.               Giri. the respondent, were wrongly accepted by               the Returning Officer;               (3)   That  the  nomination  papers  of   Shri               Rajbhoj Pandurang Nathuji, Shri Santosh  Singh               Kachhwaha,  Shri  Babu Lal Mag  and  Shri  Ram               Dulate  Tripathi were wrongly accepted by  the               Returning Officer;               (4)   That Part III and section 21 of the  Act               are ultra-vires, the Constitution;               (5)   That   Rules  4  and  6(3)(a)   of   the               Presidential  and  Vice-Presidential  Election               Rules,  1952 (hereinafter referred to  as  the               Rules),  promulgated under section 21  of  the               Act, are ultra vires the Constitution and  the               Act;               210               (6)   That   the   elected  members   of   the               Legislative    Assemblies   of    the    Union               Territories  were entitled to be  included  in               the Electoral college for the election of  the               President and their wrongful non-inclusion had               not only materially affected the result of the               election  but  also violated Art.  14  of  the               Constitution;               (7)   That  the petitioners were  entitled  to               dispute  the  election even on  grounds  other               than those mentioned in s. 18 of the Act;               (8)   That  the  offence  of  bribery  at  the               election had been committed by the  respondent               and his supporters with his connivance; and               (9)   That the result of the election had been               materially  affected by the commission of  the               offence  of bribery by persons other than  the               respondent. In  addition  to these allegations it was alleged  that  the offence  of  undue  influence  had  been  committed  at  the election  with  the connivance of the  respondent.   In  any event  the  result  of  the  election  had  been  materially affected  by  the  commission  of  this  offence.   We  will elaborate  the pleadings on this point when we come to  deal with the issues arising out of that allegation. We  have read the judgment prepared by Bhargava, J.  He  has dealt  fully with the issues arising out of the  allegations other  than  the allegation of undue influence  and,  as  we agree  with him, it is not necessary to add anything to  his reasoning.   We may, however, reproduce the issues  and  the conclusions thereon.

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Issue No. 5 of Election Petitions Nos. 1, 4 and 5/1969 E.   P. No. 1 : Whether section 21 of the Act is ultra-vires the Constitution of India E.   P. Nos : Whether Part III and section 21 of the Act are ultra vires the Constitution of India ? We  hold  that Part III and section 21 of the  Act  are  not ultra vires the Constitution of India. Issue No. 6 of Election Petitions Nos. 1, 4 and 5/69               E.    P. Nos. 1, 4 & 5 : whether Rules 4 and 6               (3)  (e)  of  the Rules are  ultra  vires  the               Constitution and the rule-making power of  the               Central Government ?               211               We hold that r. 4(3) of the Rules was  validly               made  by  the Government in  exercise  of  its               rule-making  power  under S. 21  of  the  Act.               That  rule  being valid, rule 6(3)(e)  of  the               Rules,  which is consequential, must  also  be               held to be valid.               Issue No. 1 in Election Petitions Nos. 1, 4  &               5/1969               E.P. No. 1 : Whether the nomination papers  of               the  petitioner, Charan Lal Sahu and Yogi  Raj               were wrongly rejected as alleged in paragraphs               5(a) and (b), 6 and 7 of the petition ?               E.P.  No. 4: Whether the nomination papers  of               Shiv  Kirpal Singh, Charan Lal Sahu  and  Yogi               Raj  were  wrongly  rejected,  as  alleged  in               paragraphs 8(a), and 9(a), (b) and (c) of  the               petition ?               E.P.  No. 5: Whether the nomination papers  of               Shiv  Kirpal Singh, Charan Lal Sahu  and  Yogi               Raj  were  wrongly  rejected  as  alleged   in               paragraphs 8(a) and 9 of the petition ? We hold that the nomination paper of Shri Shiv Kirpal  Singh was  rightly  rejected  on  the  ground  that  it  was   not accompanied by a certified copy of the entry relating to him in  the electoral roll of the Parliamentary constituency  in which  he was registered as a voter.  We further  hold  that the  nomination  paper of Shri Charan Lal Sahu  was  rightly rejected  on the ground that he was not 35 years of  age  on the  date of nomination.  We also hold that  the  nomination paper  of Shri Yogi Raj was rightly rejected on  the  ground that he had been proposed and seconded by the same  electors who  had  proposed  and  seconded  another  candidate,  Shri Rajbhoj  Pandurang  Nathuji,  the nomination  paper  of  the latter  having  been  received  earlier  by  the   Returning Officer. Issue No. 2 in Election Petition Nos. 1 and 5 and Issue  No. 3 in Election Petition No. 4 of 1969               E.P. No. 1 :    Whether  the nomination  paper               of  the  respondent were wrongly  accepted  as               alleged   in  paragraphs  5(c)  and8  of   the               petition ?               E.P. No. 4:     Whether the nomination  papers               of  the  respondent were wrongly  accepted  as               alleged  in  paragraphs  8(c) and  11  of  the               petition ?               E.P.  No. 5 :Whether the nomination papers  of               the   respondent  were  wrongly  accepted   as               alleged  in  paragraphs  8(b)  and10  of   the               petition ?               We  hold  that the nomination  papers  of  the               respondent   were   validly   accepted.    The               certified  copies of the electoral roll  filed

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             with the nomination papers were issued by  the               appropriate authority.               212               Issue No. 3 in E.Ps. Nos.  1 & 5 and issue No.               2 in E.P. No. 4/1969               E.P. No. 1 : Whether the nomination papers  of               Rajbhoj  Pandurang  Nathuji and Babu  Lal  Mag               were wrongly accepted as alleged in paras 5(d)               and 9 of the petition ?               E.P.  No. 4: Whether the nomination papers  of               Rajbhoj  Pandurang Nathuji, Babu Lal  Mag  and               Ram  Dulare Tripathi were wrongly accepted  as               alleged in paragraphs 8(b) and 10(a), (b)  and               (c) of the petition ?               E.P. No. 5 : Whether the nomination papers  of               Rajbhoj   Pandurang  Nathuji,  Santosh   Singh               Kachhwaha,   Babu  Lal  Mag  and  Ram   Dulare               Tripathi  were wrongly accepted as alleged  in               paragraphs 8(c) and 1 1 of the petition ?               We  hold  that the nomination  paper  of  Shri               Rajbhoj   Pandurang   Nathuji   was    validly               accepted, the certified copy of the  electoral               roll filed by him was a valid and a good copy.               We  further hold that the nomination paper  of               Shri  Santosh Singh Kachhwaha was not  invalid               even  though  he signed his  nomination  paper               before  his  seconder  had  signed  it.    His               nomination   paper,  therefore,  was   rightly               accepted.  We further hold that the nomination               paper  of  Shri Babu Lal Mag was  not  invalid               even  though  he had signed  his  nomination               paper before it was signed by the proposer and               the  seconder.   His  nomination  paper   was,               therefore, rightly accepted’.  We further hold               that  the nomination paper of Shri Ram  Dulare               Tripathi   was  not  invalid.   The   disputed               signatures  have  not been shown  to  be  not               genuine.               Issue  No. 4 in E.P. No. 1 and issue No. 7  in               E.P. Nos. 4 and 5 of 1969               (a)   Whether  the  elected  members  of   the               Legislative    Assemblies   of    the    Union               Territories  were entitled to be  included  in               the electoral college for the election of the               President  ?               (b)   If so, whether the non-inclusion of  the               members  of the Legislative Assemblies of  the               Union  Territories  in the  electoral  college               amounts to non-compliance with the  provisions               of  the  Constitution  ? If  so,  whether  the               result  of  the election has  been  materially               affected by such non-compliance.’               (c)   Whether the alleged non-compliance  with               the   provisions  of  the   Constitution   has               violated Article 14 of the Constitution?                                    213               we  hold that members of Legislatures  created               for  Union Territories under Art. 239A  cannot               be   held   to  be  members   of   Legislative               Assemblies  of States.  They were,  therefore,               rightly  excluded from the electoral  college.               Issue No. 4(a) in Election Petition No. 1  and               Issues Nos. 7(a) in Election Petitions Nos.  4               and  5  are accordingly  decided  against  the               petitioners.  In view of this conclusion Issue

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             No.  4(b)  and  Issue  No.  4(c)  of  Election               Petition No. 1 and Issues Nos. 7(b) and (c) of               Election Petitions Nos. 4 and 5 do not arise.               Issues Nos.  1 and 2 in Election Petition  No.               3 of 1969               1.    Whether  the  nomination paper  of  Phul               Singh, the petitioner, was wrongly rejected ?               2.  What  relief, if any,  is  the  petitioner               entitled to ?               We hold that the nomination paper of Shri Phul               Singh was rightly rejected on the ground  that               his nomination paper was not signed either  by               a  proposer or a seconder.  Election  Petition               No. 3 of 1969 accordingly fails and is  liable               to be dismissed.               Issue  No. 8 in Election Petitions Nos. 4  and               5/1969               E.P.  No. 4 : (a) Whether the petitioners  are               entitled  to  dispute  the  election  of   the               respondent   on  grounds  other   than   those               mentioned in section 18 of the Act?               (b)   If  issue No. 8(a) is decided in  favour               of the petitioners,               (i)   whether  the  respondent or  any  person               with  his  connivance printed,  published  and               distributed the pamphlet, at Annexure A-3,  to               the petition ?               (ii)  Whether  the pamphlet, at Annexure  A-3,               contained   any  false  statement   of   facts               relating to the personal character and conduct               of  N.  Sanjiva  Reddy, a  candidate,  at  the               election  and  other  persons  named  in   the               pamphlet ?               (iii) Whether  the persons  found  responsible               for  publishing  the  pamphlet  believed   the               statements made therein as true or had  reason               to believe them to be true ?               (iv)  Whether the pamphlet was published  with               the object of prejudicing the prospects of the               election of Sanjiva  Reddy and furthering  the               prospects of the election of   the  respondent               ?               (v)   Whether  the election of the  respondent               is liable to be declared void on this ground ?               214               E.P.  No. 5: Issue No. 8 in Election  Petition               No.  5 is substantially the same  except  that               the annexure in Petition No. 5 is Annexure  A-               38 and not Annexure A-3.               On the first part of Issue No. 8 we hold  that               the  petitioners are not entitled  to  dispute               the  election  of the  respondent  on  grounds               other than those mentioned in s. 8 of the Act.               The   other   part  of  the   issues,   as   a               consequence, do not arise at all.               Issues Nos. 9, 9A and 10 in E.P. No. 5/1969               9.    Whether  the  respondent  or  any  other               person  with  his  connivance  committed   the               offence of bribery as alleged in paragraph  15               of the petition ?               9A.   Whether  the  allegations  in  para   15               constitute  bribery within the meaning of  the               Act ?               10.   Whether  the  offence  of  bribery   was               committed at the election by any other  person

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             without  the connivance of the  respondent  as               alleged  in paragraph 15 of the petition,  and               if  so,  whether it  materially  affected  the               result of the election ?               We  hold  that  no  offence  of  bribery   was               committed  in the matter of grant  of  licence               for  the Polyester Factory to Swadeshi  Cotton               Mills.               This leaves Issues Nos. 4 in Election Petition               No. 4 and Election Petition No. 5. These  read               as follows               E.P. No. 4               (a)   Whether  all or any of  the  allegations               made  in paragraphs 8(e) and 13(a) to  (m)  of               the  petition constitute in law an offence  of               undue  influence under section 1 8  (1)(a)  of               the Act ?               (b)   Whether  the  said allegations  made  in               paragraphs 8(e) and 13(a) to (m) are true  and               proved ?               (c)   In the event of these allegations  being               proved and constituting undue influence,               (i)   whether   the  returned  candidate   has               committed the offence of undue influence ?               (ii)  whether  the offence of undue  influence               was committed by his workers, and if so,  with               his connivance ?               215               (iii) whether  the offence of undue  influence               was   committed   by   others   without    his               connivance,  and  if  so,  whether  that   has               material affected the result of the election ?               E.P. No. 5               (a)   Whether  all or any of  the  allegations               made in paragraphs 8(e) and 13 of the petition               constitute   in  law  an  offence   of   undue               influence under section 18 (1)(a) of the Act               (b)   Whether   the   said   allegations    in               paragraphs 8(e) and 13 are true and proved ?               (c)   In the event of these allegations  being               proved and constituting undue influence-               (i)   whether   the  returned  candidate   has               committed the offence of undue influence ?               (ii)  whether  the offence of undue  influence               was committed by his workers, and if so,  with               his connivance ?               (iii) whether  the offence of undue  influence               was   committed   by   others   without    his               connivance,  and  if  so,  whether  that   has               materially   affected,  the  result   of   the               election ? We may now refer to the pleadings relevant to Issue No. 5 in Election Petition No. 5. In para 8(e) of the petition it is stated that the  offences of  undue influence at the election have been  committed  by the  returned  candidate  and by  his  supporters  with  the connivance of the returned candidate.  It is further  stated that  the material facts, in support of this ground  are  in para  13  of the petition.  In para 13(a) are  set  out  the facts  which according to the petitioners led to  the  sharp cleavage between the electors of the Congress Party and  all electors  in general.  In brief, the history of the  dispute between  the two sections of the party, which we will  refer to as Congress (R) led by Shri Jagjivan Ram and Congress (0) led by Shri Nijalingappa, was set out.  We need not  extract

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the pleadings on this part of the case in detail because  we will briefly refer to the background of the dispute and  the facts  as  proved before us.  But we may mention  that  this Court  is  not  concerned with the  merits  of  the  dispute between  the two sections of the Congress Party and we  will consider this matter only insofar as it throws any light  on the question of the offence of undue influence. 216 In   paragraph   13(b)(ii)  it  was   alleged   that   "Shri Nijalingappa,  Shri  S.  K. Patil,  Shri  K.  Kamaraj,  Shri Morarji  Desai  and  Shri  Y. B.  Chavan,  electors  at  the election, were threatened by Smt.  Indira Gandhi on July 12, 1969, at Bangalore with serious consequences with the object of  unduly  influencing  these  people  or  changing   their decision  to  nominate.   Shri N.  Sanjiva  Reddy  as  their candidate.   The  threat  given  was  repeated  subsequently between  12th  and 16th July, 1969 a number  of  times."  By order   dated  January  23,  1970,  we  directed  that   the petitioners were not entitled to lead evidence on this. sub- para because we were of the opinion that these  allegations, even  it accepted, did not constitute any interference  with the  electoral right as defined in s ’. 171-A of the  Indian Penal Code, i.e. the right to vote or refrain from voting at an  election.   As far as Shri Sanjiva Reddy  was  concerned there   is  no  allegation  that  the  Prime  Minister   had interfered or attempted to interfere with his right to stand as a candidate. In  para  13(b)(iii)  it  was  alleged  that  a  number   of supporters of the returned candidate, and in particular Shri Jagjivan  Ram, Shri Yunus Saleem, Shri Shashi Bhushan,  Shri Krishan  Kant and Shri Chandra Shekhar, Shri  Jagat  Narain, Shri  Mohan Dharia and Shri S. M. Banerji, with the  consent or  the connivance of the returned candidate,  published  by free  distribution a pamphlet, Annexure A-38, in  Hindi  and English, in cyclostyled form as well, as in printed form, in which very serious allegations were made which amounted.  to undue influence within the meaning of s. 17.1C of the Indian Penal Code. In  para  13(b)(iv) it was alleged that "this  pamphlet  was distributed  from  9th to 16th August, 1969, among  all  the electors  of  the  electoral college  for  the  Presidential election.  During these days it was also-distributed in the Central  Hall  ’of the Parliament by the  persons  mentioned above.   A large number of electors were asked to  read  the contents of this pamphlet and they were asked "Will you vote for  such  a  debauch and corrupt man ?" The  minds  of  the voters  were  so  unduly influenced and  an  impression  was purposely sought to be created that if Mr. Reddy was elected to  the  office of the President of India,  the  Rashtrapati Bhavan will become a centre of vice and immorality and  that Shri Reddy will assume dictatorial powers and will bring  an end  to democracy in ’India.  This scare was created in  the minds of the electors with the direct object of  interfering with  their free exercise of their electoral right  to  vote for  the  candidate of their choice.  As a  single  instance Shri Yunus Saleem approached Shri Abdul Ghani Dar, Member of Parliament, one of the petitioners herein, and talked to him in  this  behalf as stated earlier.  This was  said  in  the presence of a number of Members of Parliament." 217 In  sub-para  13(b)(v) it was alleged that  the  petitioner, Shri  Abdul Ghani Dar, "wrote a letter to Shri V.  V.  Giri, copy  of which was endorsed to the Prime Minister  and  Shri Humayun Kabir." In this letter the petitioner requested Shri ’V.   V.  Giri,  to condemn those  who  had  published  this

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pamphlet  and make a public statement  dissociating  himself from and denouncing the publishers of the pamphlet but  Shri V. V. Giri failed to do SO. In sub-para 12 (b) (vi) it was alleged that ’this low  level pamphlet had evoked great public and press criticism and  it came  out openly in the press that such low level  pamphlets were  being distributed in the election campaign."  It  was, further alleged that even news items regarding this pamphlet appeared  in almost all leading newspapers of  the  country. In spite of this, the returned candidate, who was repeatedly harping upon and asking for votes in the name of  character, integrity,  etc.,  failed  to dissociate  himself  from  the pamphlet or even to condemn the same." It was alleged in sub-para (viii) that "the language of  the pamphlet and the laudatory references to Smt.  Indira Gandhi and  her  followers themselves point to the  origin  of  the pamphlet." In  sub-para  (ix)  of para 13(b) reference was  made  to  a letter issued by Shri Madhu Limaye, M.P., which he wrote  to the  Election  Commission of India, protesting  against  the alleged  pamphlet  and requesting him  to  take  appropriate action.   In sub-para (x) reference is made to the reply  of the Chief Election Commissioner.  It was alleged in sub-para (xi)  that a similar letter was written by Shri  Kanwar  Lal Gupta,  M.P.,  to the Election Commission, and  in  sub-para (xii) reference was made to the reply of the Chief  Election Commissioner dated August 14, 1969. In  sub-para  (xiii)  it  was  alleged  that  the   returned candidate,  Shri  V.  V. Giri, made  various  statements  at various  places  condemning  the decision  of  the  Congress Parliamentary Board in selecting Shri Reddy as its candidate and  described it as immature.  It is further  alleged  that Shri V. V. Giri, "repeatedly stated that a man of  character and  integrity  should have been  selected."  "The  returned candidate  in  well guarded language was  stating  that  Mr. Reddy  was  not a man of character.  He also  exhorted  Con- gressmen  to demand a right of vote and made capital of  the Congress  President’s  appeal to Jan  Sangh  and  Swatantara Party." In  sub-para  (c) (1) of para 13 it was  alleged  that  "the supporters  of the returned candidate, Smt.  Indira  Gandhi, Shri  Jagjivan  Ram, Shri Fakhruddin Ali Ahmed,  Shri  Yunus Saleem,  Dr.  Karan Singh, Shri Dinesh  Singh,  Shri  Swaran Singh,  Shri I. K. Gujral, Shri Satya Narain Sinha, Shri  K. K.  Shah  and  Shri  Triguna Sen  were  all  occupying  high ministerial, positions in the Central Gov- 218 ernment and they misused these Positions for furthering  the Prospects  of the returned candidate by telephoning a  large number of electors from their ministerial telephones of  the Government,  openly  telling them that it was  a  matter  of prestige and existence for them and that if the electors did not vote according to their wishes for Shri V. V. Giri, they would  lose  all their patronage and that  if  the  electors voted  as desired by them, they would  receive  governmental patronage  at every step.  So many electors were  called  by the above named Ministers at their official residences  and, offices  in Delhi and undue influence was brought upon  them by ordering them to vote for the returned candidate." It was further stated that the returned candidate, Shri V. V. Giri, sounded  one of the Ministers mentioned above  to  influence the particular electors, who were not found amenable to  his own influence or persuasion. In  para 13(c)(ii) reference was made to Shri Yunus  Saleem, Deputy Law Minister, obtaining signatures of the members  of

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Rajya  Sabha  on  some paper which  in  effect  amounted  to pledging  their  support for Shri V. V. Giri,  the  returned candidate, and what happened in he Rajya Sabha in connection with that incident. In  sub-para 13(c)(iii) it is alleged that  Shri  Fakhruddin Ali Ahmed and Shri Yunus Saleem threatened the Muslim voters that  Shri Sanjiva Reddy was in fact a candidate of the  Jan Sangh  party  and if he was elected the fate of  the  Muslim community  in India will be in anger and in constant  threat of extinction.  An instance was given when Shri Yunus Saleem met  Shri Abdul Ghani Dar, petitioner, and talked to him  in the  same  terms.  Further, reference was made to  a  letter issued  by  Shri  Abdul Ghani Dar  to  all  Muslim  electors describing  such a threat as baseless and  mischievous.   In sub-para (iv) reference was made to a letter written by Shri Abdul Ghani Dar to the press in this connection. In  paras 13(c)(v) and (vi) reference was made to  a  threat issued to the members of the Legislative Assembly of  Bengal that  if  Shri Sanjiva Reddy was elected  he  would  enforce President’s rule in Bengal, thus wiping off the United Front Government and the Legislative Assembly.  Reference was made to  a news item appearing in the papers on August 12,  1969, in  this  connection.  We need not say anything  more  about this  allegation because we refused to allow evidence to  be led  on  this  issue, as the allegations  do  not,  even  if accepted, amount to "undue influence." In sub-para (vii) it was alleged that a threat was issued to the  Members of the Legislative Assembly of  Andhra  Pradesh that  the  Assembly  would be dissolved if  Shri  Reddy  was elected.  By 219 order  dated January 23, 1970, we refused to allow  evidence to be taken on this point as the allegations do not, even if accepted, amount to "undue influence,. Some  other allegations of undue influence were made in  the subsequent  paras  but we did not allow the  petitioners  to lead evidence on those paras and they need not be mentioned. The  respondent, Shri V. V. Giri, in his reply first  stated that  "I propose to traverse the allegations directly  made against  me  and also the insinuations  or  innuendoes  that anything  was done at any instance or with my knowledge  and consent or connivance.  I submit that I cannot traverse  the allegations  made  against the Prime Minister or  any  other person,  as I do not have personal knowledge  thereof."  The respondent did not, however, admit any of the allegations or insinuations against such persons and it was submitted  that the  petitioners, were put to strict proof of every  one  of them. The respondent denied the allegation in sub-para (i) of para 13(b)  of  the  petition  and said  that  "I  was  always  a appealing to the voters to exercise their vote according  to their conscience and free will.  I was, in fact,  conducting my  campaign single-handed." In reply to sub-para (iii)  the respondent  characterised the allegations as most  reckless, wild and false and emphatically denied them.  He stated that "nowhere  or  at  no  time was it  ever  alleged  within  my knowledge  that I or my supporters had anything to  do  with the publication or circulation of the alleged pamphlets." In  reply  to  sub-para (iv) of para  13(b)  the  respondent stated that he had no knowledge and did not admit any of the allegations  made in that para and the petitioners were  put to  strict  proof.  He also did not admit  that  Shri  Yunus Saleem approached Shri Abdul Ghani Dar, as alleged. In  reply  to  sub-paras  (v) and (vi)  of  para  13(b)  the respondent denied that he had received any letter from  Shri

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Abdul  Ghani  Dar.   He  stated that  the’  only  letter  he received  from Shri Abdul Ghani Dar was a letter dated  July 24,  1969, in reply to respondent’s circular letter  to  the electors  seeking their support.  He further denied that  he ever  received a copy of the alleged pamphlet.   He  further stated : "I say that in fact I saw the letter of August  11, 1969  of Shri Dar and the pamphlet attached as  annexure  to the Petition only after I received the copy of the  Election Petition and the annexures.  I entirely repudiate that I had anything  to do with the pamphlet before its publication  or after its, publication.  I also deny that any of my  workers or supporters had anything to de with it, with my  knowledge or connivance." 220 In  reply to sub-para (Viii) of para 13 (b)  the  respondent denied that persons alleged to be his workers and supporters were  distributing the pamphlet and were telling voters  not to  vote for Shri Reddy, as alleged.  He characterised  both these  allegations as baseless and false.  In reply to  sub- para  (ix)  he  said that he was not aware  of  the  letter, Annexure A-39.  In reply to sub-para (x)     he  said   that this matter Was not relevant.  In reply to sub-para (xi) it was  asserted  that Shri Gupta’s allegations were  wild  and baseless  and the matter was irrelevant.  In reply  to  sub- para  (xii)  he had no submission to make  except  that  the matter was irrelevant. With  reference  to  sub-para  (xiii)  of  para  13(b)   the respondent  denied  that during his tour of  various  places mentioned  in  the  said paragraph he stated  in  any  well- guarded language or otherwise that Shri Reddy was not a  man of  character.  He stated that throughout his statements  he adhered to the stand he had taken in his first statement  of July  13,  1969,  announcing  his decision  to  stand  as  a candidate for the office of the President.  He also  annexed copy  of  a Press Statement issued on August  10,  1969,  in which he reiterated the aforesaid stand. With reference to sub-para (i) of para 13(c) the  respondent characterised    the    allegations   as    reckless,    and irresponsible.  The petitioner also denied that. he  sounded any Minister as alleged in the sub-para. With  references to sub-paras (ii), (iii), (iv) and  (v)  of para  13(c)  the  respondent said that he  had  no  personal knowledge but put the petitioners to strict proof. The respondent further replied to other paragraphs but noth- ing  much  turns on them.  We may mention  that  at  various places  the’ respondent alleged. that the paras  were  vague and no particulars had been given. The  respondent asked for particulars on various points  and this   Court   directed   particulars   to   be,   supplied. Particulars  were  supplied regarding para  13(b)(xiii)  and para 13(c)(i).  We will refer to-the particulars whenever it is  deemed necessary while appreciating the evidence of  the petitioners. We  need not refer in detail to the allegations in  Election Petition  No. 4 which are substantially similar to those  in Petition No. 5. The Advocate-on-Record for Election Petition No.  4 and Election Petition No. 5 was the same  and  common evidence Was led in both the petitions and common  arguments were addressed thereon. 221 From  the  pleadings and the evidence led  the  main  points which arise for our determination are : (1)  What is the true interpretation of s. 18 of the Act (2)  Was the pamphlet distributed by post to the electors ?      (3) Was the pamphlet distributed in the Central Hall of

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Parliament ? (4)  Does the distribution of the pamphlet by post and/or in the  Central Hall constitute undue influence under s. 18  of the Act ? (5)  Was  this pamphlet distributed with the  connivance  of the returned candidate ?      (6)   Whether  the  offence  of  undue  influence   was committed  by  others  without his connivance,  and  if  so, whether  it  had  material  effect  on  the  result  of  the election?      Let  us  first  address ourselves to  the  question  of interpretation of s. 18. We have read the views expressed by Bhargava, J., and Mitter J., but with respect we differ from them.  Bhargava, J., has held that the distribution  of  the pamphlet  amounted to an offence under s. 171G, I.P.C.,  and not  under  s.  171C,  I.P.C.  According  to  Mitter,  J distribution of the pamphlet by post and in the Central Hall does not by itself fall within S. 18 of the Presidential and Vice-Presidential  Election  Act, 1952.  According  to  him, before any publication of a defamatory matter relating to  a candidate  can  be treated as commission of the  offence  of undue influence there must be some overt act in addition  to the  mere publication-some attempt or persuasion of a  voter to  restrain the free choice of a candidate before the  law of  undue  influence  is  attracted.  In  our  opinion,   if distribution  of the pamphlet by post to electors or in  the Central    Hall   is  proved  it  would  constitute   ’undue influence’  within  s. 18 and it is not  necessary  for  the petitioners   to  go  further  and  prove  that   statements contained in the pamphlet were made the subject of a  verbal appeal or persuasion by one member of the electoral  college to another and particularly to those in the Congress fold.      The  Presidential and Vice-Presidential Elections  Act, 1952, was passed to regulate certain matters relating to  or connected  with elections to the office, inter alia, of  the President of India. Part III of the Act deals with  disputes regarding  elections and S. 18 therein contained  lays  down the  grounds  for  declaring  the  election  of  a  returned candidate  to  be  void. The relevant part  of  the  section provides :               "If the Supreme Court is of opinion:               222               (a)   that  the  offence of bribery  or  undue               influence  at the election has been  committed               by  the  returned candidate or by  any  person               with the connivance of the returned candidate;               or               (b)   that  the  result of the  election  has               been  materially affected (i) by  reason  that               the  offence of bribery or undue influence  at               the election has been committed by any  person               who  is neither the returned candidate  nor  a               person acting with his connivance....               the  Supreme Court shall declare the  election               of the returned candidate to be void." Under  s. 18, therefore, the election has to be declared  to be  void if, amongst other things, undue influence has  been committed  (i) by the returned candidate himself, (ii) by  a person  with  his connivance or (iii) by any person  who  is neither the returned candidate nor one having acted with his connivance,   if  the  result  of  the  election  has   been materially  affected.  Section 18(2) declares that  for  the purposes  of this section the offences of bribery and  undue influence at an election have the same meaning as in Chapter IX-A of the Indian Penal Code.

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We  may  here compare the provisions of s. 18(1)(a)  and  s. 18(1)(b)(i)   read  with  s.  18(2)  with  s.  123  of   the Representation  of the People Act, 1951.  This section  lays down  corrupt practices for the purposes of that  Act  which include undue influence upon proof of which an election  has to  be  set aside.  Though undue influence for  purposes  of that  Act has the same meaning as in the present  Act,  that section does not go as far as s. 18 of the present Act so as to  provide that even if it is committed by a  third  party, that is to say, not an election agent nor a person with  the consent of the returned candidate, the election would  still be  declared to be void provided of course that it has  been materially affected by such undue influence,.  From the fact that  both these Acts were enacted by the  same  Legislature and  Act 31 of 1952 was passed after the  Representation  of the  People  Act  was passed, it is  clear  that  Parliament deliberately made s. 18 stricter than the Representation  of the  People Act, firstly, by using the words "connivance  of the returned candidate" instead of the words "his  consent", and secondly, by including undue influence committed even by a   stranger,  having  nothing  to  do  with  the   returned candidate,  as  a ground for declaring the  election  to  be void,  the  only condition in respect of such an  act  being that  it should have materially affected the election.   The object  of  doing  so is obvious,  namely,  that  Parliament wanted  to  ensure that in respect of an  election  for  the highest  office in the realm the election should be  comple- tely free from any improper influence emanating even from a 223 third  party  with  whom  the  returned  candidate  had   no connection and without any connivance on his-part.  The only limitation, as aforesaid, placed in s. 18 is that in such ’a case  it  has  to  be  established  that  the  election  was materially affected.  The questions, therefore, which  would arise  under s. 18 would be : (1) Has the offence  of  undue influence  been committed ? (2) If so, was it  committed  by the returned candidate or by a person with his connivance  ? and (3) even if the offence committed was by a stranger  and without  the connivance of the returned candidate,  has  the committal  of that offence by such "any  person"  materially affected the election ? Chapter  IXA  of the Penal Code which  deals  with  offences relating  to  elections was introduced in the  Code  by  the Indian Election Offences and Inquiries Act (XXXIX of  1920). Section 171A defines ’candidate’ and ’electoral right’.   An electoral right means the right of a person to stand or  not to  stand as, or to withdraw from being, a candidate  or  to vote  or refrain from voting at an election.  Section  171C, which  deals with the offence of undue influence  reads  as- under :               "(1)   Whoever   voluntarily   interferes   or               attempts  to interfere with the free  exercise               of any electoral right commits the offence  of               undue influence at an election.               (2)   Without  prejudice to the generality  of               the provisions of sub-section (1), whoever (a)               threatens  any  candidate  or  voter,  or  any               person  in  whom  a  candidate  or  voter   is               interested, with injury of any kind, or               (b)   induces   or   attempts  to   induce   a               candidate  or voter to believe that he or  any               person in whom he is interested will become or               will   be   rendered  an  object   of   Divine               displeasure or of spiritual censure,               shall  be  deemed to interfere with  the  free

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             exercise  of  the  electoral  right  of   such               candidate or voter, within the meaning of sub-               section(1)."               Sub-section (3) lays down that               "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               section." Section  171F  provides for the penalty for the  offence  of undue  influence which is either imprisonment upto one  year or with fine or both.  Section 171G provides  3-L308 Sup CI/71 224               " Whoever with intent to affect the result  of               an  election makes or publishes any  statement               purporting to be a statement of fact which  is               false  and which he either, knows or  believes               to be false or does not believe to be true  in               relation to the personal character or  conduct               of any candidate shall be punished with fine." The electoral right of an elector, as defined in S.  171A(b) of  the Indian Penal Code, means "the right of a person to stand,  or  not to stand as, or to withdraw  from  being,  a candidate or to vote or refrain from voting at an election." It was said that the right to vote envisages two stages; the first  stage  is when the elector goes  through  the  mental process   of  weighing  the  merits  and  demerits  of   the candidates  and then making his choice and the second  stage is  when having made his choice he goes to cast his vote  in favour  of  the candidate of his choice.  The  argument  was that  the language of s. 171C suggests that undue  influence comes  in  at the second and not at the’  first  stage,  and therefore,  it can only be by way of some act which  impedes or obstructs the elector in his freely casting the vote, and not in any act which precedes the second stage, i.e., during the stage when he is making his choice of the candidate whom he would support.  This argument was sought to be buttressed by the fact that canvassing is permissible during the  first stage,   and  therefore,  the  interference   or   attempted interference contemplated by s. 171C can only be that  which is  committed  at the stage when the elector  exercises  his right,  i.e., after he has made up his mind to vote for  his chosen candidate or to refrain from voting.  It was  further argued  that  the  words  used in s.  171C  were  "the  free exercise  of vote" and not "exercise of free vote." The  use of those words shows that canvassing or propaganda, however, virulent,  for  or against a candidate would not  amount  to undue influence, and that undue influence can only mean some act  by  way of threat or fear of some  adverse  consequence administered at the time of casting the vote. We do not think that the Legislature, while framing Ch.  IXA of  the Code ever contemplated such a dichotomy or  intended to  give such a narrow meaning to the freedom  of  franchise essential  in a representative system of government. in  our opinion  the  argument mentioned above  is  fallacious.   It completely disregards the structure and the provisions of s. 171C.   Section 171C is enacted in three Darts.   The  first sub-section  contains the definition of  "undue  influence". This  is  in  wide terms and renders  a  person  voluntarily interfering  or  attempting  to  interfere  with  the   free exercise  of any electoral right guilty of committing  undue influence.   That  this  is very wide is  indicated  by  the opening  sentence of sub-s. (2), i.e. "without prejudice  to

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the generality of the 225 provisions of sub-section (1)." It is well-settled that when this expression is used anything contained in the provisions following  this expression is not intended to cut  down  the generality of the meaning of the preceding provision.   This was so held by the Privy Council in King-Emperor v.  Sibnath Banerji(1). It  follows from this that we have to look at sub-s. (1)  as ’it  is  without  restricting  its  provisions  by  what  is contained  in  sub-s.(2). Sub-s.(3) throws a great  deal  of light on this questions It proceeds on the assumption that a declaration  of public policy or a promise of public  action or the mere exercise of a legal right can interfere with  an electoral right, and therefore it provides that if there  is no intention to interfere with the electoral right it  shall not be deemed to be interference within the meaning of  this section.  At what stage would a declaration of public policy or  a promise of public action act and tend to  interfere  ? Surely  only at the stage when a voter is trying to make  up his  mind  as  to which candidate he would  support.   If  a declaration  of public policy or a promise of public  action appeals  to  him,  his mind would decide in  favour  of  the candidate who is propounding the public policy or  promising a  public action.  Having made up his mind he would then  go and vote and the declaration of public policy having had its effect  it would no longer have any effect on  the  physical final act of casting his vote. Sub-section  (3)  further  proceeds on the  basis  that  the expression  "free exercise of his electoral right" does  not mean that a voter is not to be influenced.  This  expression has to be read in the context of an election in a democratic society  and  the  candidates  and  their  supporters   must naturally  be  allowed to canvass support by all  legal  and legitimate  means.   They  may  propound  their  programmes, policies and views on various questions which are exercising the minds of the electors.  This exercise of the right by  a candidate  or  his supporters to canvass  support  does  not interfere, or attempt to interfere with the free exercise of the  electoral  right.   What  does,  however,  attempt   to interfere  with the free exercise of an electoral right  is, if  we may use the expression, "tyranny over the-mind".   If the contention of the respondent is to be accented, it would be  quite  legitimate  on the part of  a  candidate  or  his supporter  to hypnotize a voter and then send him  to  vote. At  the stage of casting his ballot paper there would be  no pressure cast on him because his mind has already been  made up for him by the hypnotiser.               It was put like this in a book on Elections               "The  freedom  of election  is  two-fold;  (1)               freedom  in the exercise of  judgment.   Every               voter should be free               (1)   [1945] F.C.R. 195.               226               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."               (1) & (2) We  are supported in this view by the statement  of  Objects and  Reasons attached to the bill which ultimately  resulted in the enactment of Chapter IXA.  That statement explains in clear  language  that undue influence was intended  to  mean voluntary  interference or attempted interference  with  the

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right of any person to stand or not to stand as or  withdraw from  being a candidate or to vote or refrain  from  voting, and  that  the definition covers all threats  of  injury  to person  or property and all illegal methods  of  persuasion, and  any interference with the liberty of the candidates  or the  electors.  "The legislature has wisely  refrained  from defining the forms interference may take.  The ingenuity  of the  human  mind  is unlimited and perforce  the  nature  of interference must also be unlimited.", (1) & (2). From  a reading of s. 171 G 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  s. 171G does not and cannot mean that it cannot take the graver form of undue influence punishable under s. 17]F.  The false statement  may  be of such virulent,  vulgar  or  scurrilous character that it would either deter or tend together 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 falls  under  s. 171C  or  s.  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 s. 171F  read with s. 171C. We  are also supported in our view by a number of  decisions given  on similar statutory provisions.  The  Government  of India (Provincial Elections) Corrupt Practices and  Election Petitions (1)  Law  and  Practice of Elections &  Election  Petitions- Nanak Chand--1937 Ed. p. 362. (2)  Law  of Elections and Election  Petitions-Nanak  Chand- 1950 Ed. p. 263. 227 Order,  1936,  contains the following  relevant  Provisions. The  expression  "electoral right" was defined in  the  same manner as in s. 171A(b) of the Indian Penal Code.   "Corrupt practice"  in  relation to an election by the members  of  a Provincial Legislative Assembly to fill seats in  Provincial Legislative  Council, means one of the  practices  specified in.   Parts  I and II of the First Schedule to  this  Order. "Undue  influence"  was  defined in clause 2  of  the  First Schedule  to  mean "any direct or indirect  interference  or attempt  to  interfere  on the part of a  candidate  or  his agent,  or  of any other person with the connivance  of  the candidate or his agent, or of with the-free exercise     any electoral right, provided that-               (a)   without  prejudice to the generality  of               the  provisions  of this paragraph,  any  such               person as is referred to therein who:               (i)   threatens  any candidate or elector,  or               any  person in whom a candidate or elector  is               interested, with any injury of any kind; or               (ii)  induces   or   attempts  to   induce   a               candidate  or elector to believe that  he,  or               any  person  in whom he  is  interested,  will

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             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   that               candidate  or  elector within the  meaning  of               this paragraph               (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               paragraph."               Paragraph  5 of the First Schedule is  similar               to s. 171G and reads as follows :               "The publication by a candidate or his  agent,               or by any other person with the connivance  of               the  candidate or his 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."               228               These  provisions were the  subject-matter  of               decision by the Election Tribunal in  Amritsar               City (Mohammedan) Constituency Case No. 2 (1).               It was observed as follows :               "it  is  true  that the  definition  of  undue               influence  is  widely worded  and  covers  all               kinds of fraudulent acts or omissions which in               any  way,  directly or  indirectly,  interfere               with the free exercise of any electoral right,               and  it  is  also  true  that  the  definition               extends  not only to actual  interference  but               even to an attempt to interference.               But on the facts the Tribunal observed               "There   is  no  proper  evidence  of   actual               interference  before  us, and as  regards  the               attempt,  we  have  to see if  there  was  the               deliberate  intent to mislead voters and  thus               make them exercise their electoral right under               the  wrong impression that the respondent  had               been  set  up  as a candidate  by  the  Muslim               League."               It  was  argued  before  the  Commission  that               threat   or  element  of  compulsion  was   an               essential  ingredient of the corrupt  practice               of undue influence.  The Commission observed               "We  cannot,  however. find any basis  in  the               definition   of  "undue  influence"  for   the               proposition  that  unless M. Zaffar  Ali  Khan               threatened, or compelled the voters to vote in               a  particular  manner, the offence  of  "under               influence"  was not complete.  The  definition               of "undue influence" is very wide in its terms               and   includes   four   different   forms   of               interference   viz.,   direct    interference,               indirect   interference,  direct  attempt   to               interfere  and indirect attempt to  interfere,               and   it  is  nowhere  laid  down  that   such               interference or attempt to interfere should be               by  the method of compulsion although  we  are

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             prepared  to concede that the inducement  must               be  of such a powerful type as would leave  no               free will to the voter in the exercise of  his               choice.  There would, of course, be in such  a               case  mental compulsion in a sense but  it  is               not  necessary that there should  be  physical               compulsion  or that a threat must be  actually               held  out  by  the person  who  interferes  or               attempts to interfere." (p. 160)               In   Jujhar  Singh  v.  Bhairon  Lall(1)   the               petitioner   was   a   Ram   Rajiya   Parishad               candidate,  and the respondent, Bhairon  Lall,               fought on the Congress ticket.  It was alleged               that a poster was               (1)   The  Indian Election Cases  (1935-1950)-               Doabia-Vol. II, 150-157.               (2)   7 E.L.R. 457, 461.               229               published against the Ram Rajiya Parishad  and               Jagirdars and this constituted undue influence               within  s.  123 (2) of the  Representation  of               People  Act,  1951.   It  was  held  that  the               publication  of the poster  constituted  undue               influence.  The Commission observed_-.               "It  may  be  observed  that  an  attempt   to               interfere  by the method of compulsion is  not               necessary   and  that  even  the   method   of               inducement  may be sufficient, provided it               be  of such a powerful type as would leave  no               free will to the voter in the exercise of  his               choice.   In  other  words,  actual   physical               compulsion  is  not necessary,  but,  positive               mental  compulsion may be enough to give  rise               to an undue influence.  For the reasons  which               we shall presently give, we read this sort  of               mental   compulsion   in  the   poster,   and,               therefore,  hold  that  it  falls  within  the               purview of undue influence."               The slogan of the poster was described thus               "Vote  for Congress in order to put an end  to               the atrocities of the Jagirdars.  On the left-               hand  side,  a person-apparently  a  tenant-is               shown  tied up to a tree with a rope.  On  the               right, there is a well dressed Jagirdar asking               his  man, who is seen waving a whip,  to  flog               the tenant.  Evidently, the tenant’s wife, who               has  apparently  attempted to  intervene,  has               been thrown down prostrate on the ground.   To               the  right hand side of the picture, there  is               symbol of ’two bullocks with yoke on, and near               about the slit there are the hands of so  many               voters,  male and female, attempting  to  cast               their votes in the ballot box." In Radhakanta Mishra v. Nityananda Mahapatra(1) there was  a difference  of opinion whether the respondent and his  agent had  committed  corrupt  practice  of  undue  influence  ’by publishing  a booklet entitled "why should you vote for  me" where  the  picture of a dead body  with  the  objectionable caption appeared, and it was stated that the individual  had died of police firing and that the Congress had killed  him. Barman,  J., held that it constituted undue influence  while Rao,  J., held that it did not.  There being  difference  of opinion, the case went to Das, J., who held that it did  not amount  to undue influence.  Das, J., observed regarding  s. 123(2)  of the Representation of People Act that "there  may

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be some element of mental compulsion, but not necessarily  a physical  one or a threat actually held out by  the  person who  interferes  or  attempts  to  interfere."  We  are  not concerned with the question whether the booklet in that case constituted  undue  influence  or  not  but  only  with  the interpretation of the section.  Barman, J., (1)  19 E.L.R. 203. 230 observed  "A  voter  must be able  to  freely  exercise  his electoral  right.  He must be a free agent.  All  influences are not necessarily undue or unlawful.  Legitimate  exercise of influence by a political party or association or even  an individual  should  not be confused  with  undue  influence. Persuasion may be quite legitimate and may be fairly pressed on  the  voters.  On the other hand,  pressure  of  whatever character, whether acting on the fears, threat, etc., if  so exercised  as to overpower the volition  without  convincing the judgment is a species of restraint which interferes with the free exercise of electoral right. It is not necessary to establish  that  actual  violence  had  been  used  or  even threatened.  Methods of inducement which are so powerful  as to  leave no free will to the voter in the exercise  of  his choice may amount to undue: influence.  Imaginary terror may have been created sufficient to deprive him of free agency." The  scope  of s. 171C, I.P.C., was considered in  a  recent decision  of  this  Court  in Baburao  Patel  v.  Dr.  Zakir Hussain(1).  Wanchoo, C.J., speaking for the Court  observed :               "It  will  be seen from the  above  definition               that  the  gist  of  undue  influence  at   an               election consists in voluntary interference or               attempt at interference with the free exercise               of any electoral right.  Any voluntary  action               which   interferes   with  or attempts   to               interfere with such free exercise of electoral               right-would  amount to undue  influence.   But               even  though the definition in sub-s. (1) of               s.  171C  is wide in terms it cannot  take  in               mere canvassing in favour of a candidate at an               election.   If  that  were  so,  it  would  be               impossible   to  run   democratic   elections.               Further  sub-s. (2) of s. 171C shows what  the               nature of undue influence is though of  course               it  does  not cut down the generality  of  the               provisions   contained  in  sub-section   (1).               Where any threat is held out to any  candidate               or voter or any person in whom a candidate car               voter  is  interested  and the  threat  is  of               injury  of  any  kind, that  would  amount  to               voluntary    interference   or   attempt    at               interference  with the free exercise of  elec-               toral  right  and would  be  undue  influence.               Again  where a person induces or  attempts  to               induce  a candidate, or voter to believe  that               he or any person in whom he is interested will               become or will be rendered an object of Divine               displeasure  or  of  spiritual  censure,  that               would  also amount to  voluntary  interference               with the free exercise of the electoral  right               and would be undue influence               (1)   [1968] 2 S.C.R. 433, 145.               231               What is contained in sub-s. (2) of S. 171C  is               merely  illustrative.  It is difficult to  lay               down  in general terms where  mere  canvassing

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             ends   and   interference   or   attempt    at               interference  with  the free exercise  of  any               electoral  right begins.  That is a matter  to               be  determined in each case; but there can  be               no  doubt  that  if what  is  done  is  merely               canvassing  it would no& be  undue  influence.               As  subsection (3) of s. 171C shows, the  mere               exercise  of a legal right without  intent  to               interfere with an electoral right would not be               undue influence." It  is  not  necessary. to consider the  provisions  of  the Indian  Contract  Act  or the English  Law  on  the  subject because we have a special definition given by Parliament. The  question that then arises is : Whether the  publication of this pamphlet can be said to constitute undue influence ? We  have no doubt that it does fall within that  definition. It  is not necessary to reproduce the pamphlet in detail  as we  shall  only  be giving further publicity  to  this  most objectionable pamphlet.  The pamphlet, after giving  various fictitious incidents of sexual immorality, describes Shri N. Sanjiva  Reddy  a  debauch without any  sense  of  shame  or morality.  Then the pamphlet asks : "Should the name of  the Congress  be lowered to such depths that this  moral  leper, this depraved man should be set up as the Congress candidate for the highest post ?" It further adds : "A senior Congress MP  has  expressed  the  fear :  If  Sanjiva  Reddy  becomes President  he will turn Rashtrapati Bhavan into a  harem,  a centre of vice and immorality." It  seems to us that these allegations are covered under  s. 17 1 C, even if they may, be covered under s. 171G.  But we are not concerned with s. 171G because that section has  not been  made a ground for setting aside an election.   We  are only  concerned with s. 171C.  Be that as it may, we  cannot add another subsection to s. 171C, as follows :               "A false statement of fact in relation to  the               personal character or conduct of any candidate               even if made with the intention of interfering               with the electoral right shall not be  deemed               to be interference within the meaning of  this               section." It  was  said that this pamphlet cannot come under  s.  171C because it was issued anonymously and, therefore, it was not likely  to  interfere  with the  choice  of  the  electorate particularly as the electorate consisted only of members  of Parliament and Members of State    Legislatures.   But,   in our opinion, this argument is fallacious. First, this has no relevance  to the question whether any attempt to  interfere with the electoral right has been made or not. 232 Secondly,  a series of anonymous attempts in a country  like ours  would  have as much, if not more, effect as  one  open powerful  attempt.   It  would be  dangerous  to  provide  a sanctuary  to anonymous attempts.  Thirdly, on the facts  of this  case, can we say that the distribution in the  Central Hall  is  the  same thing as anonymous publication  ?  If  a member  of  Parliament  distributes a pamphlet,  is  he  not identifying   himself   with   it   unless   he    expressly disassociates  himself  from the pamphlet ? It seems  to  us that  the  distribution in the Central Hall  by  members  of Parliament has the same effect as if they had endorsed  the pamphlet in writing. We  are accordingly of the opinion that distribution of  the pamphlet  by  posts also distribution in  the  Central  Hall constituted  an attempt to interfere with the free  exercise of the right to vote within s. 18 of the Act.

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We  must first mention that both the parties  led  extensive evidence  to  prove the genesis of the dispute  between  the Congress  party  led by Shri Jagjivan Ram and  the  Congress party  led  by Shri Nijalingappa.  We were  told  about  the proceedings  of  the Faridabad session and  the  Bangalore Session,  and  the  circumstances  attending  Shri   Morarji Desai’s    resignation.    Further   the   whole   of    the correspondence  between  the Prime Minister and  Shri  Nija- lingappa, and between Shri Jagjivan Ram and Shri  Fakhruddin Ali Ahmed and Shri Nijalingappa between August 9 and  August 18  was exhibited in the case.  But as it is  not  necessary for us to determine the exact genesis of the dispute we will only  take note of the fact that both the  congress  parties were  opposed to each other at the time of the election  and had  different  views on certain economic  issues.  and  the Presidential election became a vital issue between them.  In view  of the above we will have to judge the evidence  given by  the  witnesses  with care, and  wherever  possible  seek corroboration  of the evidence from circumstances  or  other independent evidence. We may now deal with the question whether it is possible  to find  out who printed or published the pamphlet and  whether it  was  distributed by post and/or in the Central  Hall  of Parliament.   Regarding  the authorship of the  pamphlet  no evidence  has  been  led  by  the  petitioners  but  it  was contended  on their behalf that if the Pamphlet  is  closely scrutinised there are indications in the pamphlet that it is the work of some congressmen belonging to that party of  the Congress  which is now led by Shri Jagjivan  Ram.   Although this  argument appears to be attractive, we cannot come  ’to the  conclusion that it was the work of the members  of  any particular  party.   The fact that certain  witnesses  ’have admitted  that  the first part of  the  pamphlet  represents their  ideology  leads us nowhere because it  would  not  be difficult for other persons to 233 reproduce their ideology in words.  Their ideology is  well- known  and  they are not averse to expounding  it  in  great detail,  as  was  done before us.  But as  we  have  already said’,  we  cannot  hold  that it is  the  work  of  members belonging to any particular political party. Regarding  the  distribution by post there  is  overwhelming evidence  that the pamphlet was widely distributed by  post. Part  of  it  will  be referred to  when  dealing  with  the question  of  distribution of the pamphlet  in  the  Central Hall.   Even  the  Prime  Minister.   Smt.   Indira  Gandhi, received a copy of it, as is clear from her letter Ext.   P. 85-dated  August  21, 1969, to Shri Madhu Limaye,  M.P.,  in reply  to his letter dated August 13, 1969.  In this  letter she, inter alia, wrote               "The  leaflet  came  to  me  by  post  and   I               immediately   asked  the  Home   Ministry   to               institute an inquiry as to the source so  that               necessary action could be considered.               This was before I received your letter."               No  evidence  was  led by either  side  as  to               whether  such an Inquiry was made, and if  so,               whether  the  authorship of the  pamphlet  was               found out.  We may mention that Mr.  Daphtary,               the  learned counsel for the  respondent.  did               not argue the question about the  distribution               by post and admitted that distribution of  the               pamphlet by post had taken place.               Then  we come to the question of  distribution               of the pamphlet in the Central Hall.  On  this

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             point  the evidence is extremely  conflicting.               Shri  Kanwarlal Gupta, M.P., P.W.  11,  stated               that he saw the pamphlet being distributed  in               the   Central  Hall  of  Parliament  by   some               members;  one  was Shri Yunus Saleem  and  the               other  was Shri Shashi Bhushan.  He said  that               he  was definite about these two members.   He               further  stated that he did not receive it  in               Parliament  but some other members did and  it               was  being  openly  distributed.   In   cross-               examination  he stated that Shri Yunus  Saleem               gave  it to two or three people; he  came  and               gave   one  pamphlet  to  each.   Shri   Gupta               produced  copy  of a letter dated  August  14,               1969,  which  he  had  written  to  the  Chief               Election Commissioner in this connection.   In               this  letter  Ext.  P 37-it  is.  inter  alia,               stated :               "Moreover, pamphlets are being distributed  in               which   vulgar  charges  have  been   levelled               against   another  candidate  for  this   high               office.  Character assassination is going  on.               I  am sending a copy of the pamphlet in  which               vulgar  and  filthy  attacks  have  been  made               against  Shri N. Sanjiva Reddy.  This  amounts               to  corrupt practice under the  Election  Law.               These pamphlets are being distributed               234               by  the  supporters of  ’the  Prime  Minister.               Shri  M.  Yunus  Saleem,  a  Minister  in  her               Cabinet  and  some others are very  active  in               it." (emphasis supplied)               The  Chief Election Commissioner  acknowledged               this  letter  by his d.o. letter-Ext.   P  16-               dated August 14, 1969.  This letter  certainly               corroborates Shri Kanwar Lal Gupta’s statement               that  Shri Yunus Saleem was distributing  this               pamphlet  but  it would be noted that  in  the               letter  to the Election Commissioner there  is               no mention of the Central Hall of  Parliament.               We will discuss this letter in detail a little               later.  Smt.  Jayabehn  Shah, M.P., P.W. 25, deposed that  she  saw this pamphlet being distributed in the Central Hall and  she saw Shri Shashi Bhushan, M.P., distributing it, although she did not receive it personally from him.  We may mention that she   belongs   to  the  Congress  Party  headed   by   Shri Nijalingappa. Shri Nanubhai Nichhabhai Patel, M.P., P.W. 26, deposed  that he saw the pamphlet in the Central Hall of Parliament  about the  12th  or  13th of August and Shri  Yunus  Saleem,  Shri Shashi  Bhushan and Shri Chandra Shekhar  were  distributing the  pamphlet;  they came to give him this pamphlet  but  he told them : "Yes, I have received it in my flat." In  answer to the question what did they tell you" he stated "They  asked  me whether I had gone  through  this  pamphlet thoroughly.   I said, "Yes".  Then they told me "Be  careful and before voting you consider all these facts." In  answer to the question "who told you" he replied :  "Mr. Saleem."  In cross-examination he said that he had not  told the  petitioners or either of them, Shri Rama Reddy or  Shri Abdul Ghani Dar,. that the pamphlet was distributed by  Shri Jagat  Narain,  Shri Mohan Dharia or by Shri  Yunus  Saleem. This  question was put in cross-examination in view  of  the particulars  supplied by Shri Abdul Ghani Dar,,  petitioner,

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that  Shri  Krishan Kant, Shri Chandra Shekhar,  Shri  Jagat Narain,  Shri  Shashi  Bhushan and  Shri  Mohan  Dharia  had distributed the pamphlet, inter alia, to Shri N. N.   Patel, M.P., Shri Abdul Ghani Dar had verified that this was on the information received from the member of Parliament mentioned as recipient of the pamphlet. The learned counsel For the respondent, Mr. Daphtary, had at various times asked questions in cross-examination from  the petitioners’  witnesses in order to elicit  the  information they  gave  to Shri Abdul Ghani Dar or Shri Sri  Rama  Reddy with  a ’view to show that the particulars and the  evidence in most cases are in conflict.  He says that we should  draw an inference against the evidence of 235 these witnesses wherever there is a conflict between what is stated  in the particulars and what is ultimately stated  in the evidence.  In this particular case it appears that  some particulars  were  given  by  guess  work  rather  than   by ascertaining  from  the  witnesses.   We  cannot,   however, disbelieve  witnesses  only because the particulars  are  at variance with their evidence.  But we will bear the fact  in mind while appreciating their evidence. Shri  Mohan  Lal Gautam, M.P., P.W. 27, stated that  he  had received  a  copy of this pamphlet in, the Central  Hall  of Parliament  from  Shri Shashi Bhushan and he  saw  it  being distributed to other members also.  In cross-examination  it was put to him that his impression that Shri Shashi  Bhushan gave  it  to  him  was not correct  and  he  replied  :  "My recollection  is  quite correct because I came here  on  the 14th August and I had only one day here-15th was holiday and 16th was polling day, so there cannot be any confusion."  We may  mention that he was elected on the 13 of August,  1969, to the Rajya Sabha and took oath on August 14, 1969. Shri  C. D. Pande, M.P., P.W. 29, is one of the  petitioners in  Election  Petition No. 4. He deposed that  when  he  was sitting  in  the  Central Hall he  saw  the  pamphlet  being distributed  by certain members; he could recollect  two  or three and he recollected Shri Shashi Bhushan, Shri  Krishna Kant and Shri Yunus Saleem, although they did not give him a copy of the pamphlet.  In cross-examination he stuck to  the position and said that they did not give the pamphlet to him because  "they were giving to such persons who they  thought fit,  because I was too patent not to accept it." In  answer to  the  suggestion that "loyalty was too obvious"  he  said "yes".- He was cross-examined in regard to the,  particulars and he said that he never told Shri Sri Rama Reddy that  the pamphlet was given to him in the Central Hall of  Parliament by Shri Jagjivan Ram and II other M.Ps. He also denied  that he  told Shri Sri Rama Reddy that the pamphlet was given  to him on the 11th of August in the Central Hall by Shri  Mohan Dharia and Shri Chandra Shekhar.In the particulars  supplied by Shri Sri Rama Reddy it is stated that one of the  persons who  was  given  the said pamphlet in the  Central  Hall  of Parliament was Shri C. D. Pande. Shri  D. N. Deb, M.P., P.W. 30, belonging to  the  Swatantra Party,  deposed that the pamphlet was being  distributed  in the Central Hall by Shri Shashi Bhushan and some others  who were  in  general  called ’Young Turks’,  and  Shri  Shashi. Bhushan  gave  him a copy.  He said that  the  pamphlet  was distributed openly in the Central Hall.  He denied in cross- examination  that  be  told Shri Sri Rama  Reddy  that  Shri Jagjivan Ram and 11 others gave him a copy of the  pamphlet. In  the particulars supplied by Shri Abdul Ghani Dar  it  is stated that he is one of the persons who was given a copy of the pamphlet in the Central Hall. This is rather

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236 strange because he stated in cross-examination that although he met Shri Abdul Ghani Dar, it was not he but Shri Sri Rama Reddy who asked him to give evidence.  He does not say  that he told Shri Abdul Ghani Dar anything in particular. Shri  Hukam Chand Kachwai, M.P., P.W. 32, belonging  to  the Jan  Sangh party, deposed that Shri Shashi Bhushan and  Shri Jagjivan  Ram gave the pamphlet to him in the Central  Hall. He  further said that "Mr.  Shashi Bhushan told me that  Mr. Giri  was the supporter of the labour and I  should  support him and the other thing that he told me was that Mr. Sanjiva Reddy was a characterless person and the description of  his character is in this pamphlet which I can see." He said that he received this pamphlet in the Central Hall on the 12th of August.   In cross-examination he deposed that  Shri  Shashi Bhushan  came  alone and gave him the pamphlet  and  further that Shri Jagjivan Ram had also given him a similar pamphlet but that was on August 13, 1969’.  He further stated that he went  with  the  pamphlet to his leader,  Shri  Atal  Behari Bajpai, although he did not ask Shri Bajpai whether what was stated in the pamphlet was true.  He further said in  cross- examination  that  he did not meet Shri Abdul Ghani  Dar  or Shri Sri Rama Reddy. Smt.   Pushpabehn  Mehta, M.P., P.W. 36,  stated  that  some members including Shri Shashi Bhushan, were distributing the pamphlet  in  the Central Hall of the Parliament and  they were  discussing.  She stated in cross-examination that  she did   not  report  to  the  Security  Officer.   In   cross- examination  she  stuck  to her position  that  Shri  Shashi Bhushan   and  Shri  Krishan  Kant  were  distributing   the pamphlet.   She.  had not talked to Shri Sri Rama  Reddy  or Shri  Abdul  Ghani Dar or any other person on  their  behalf before  giving  evidence.  She stated that there  were  many persons in the Central Hall and they were sitting in  groups and  distributing,  but she did not  mention  Shri  Jagjivan Ram’s  name in particular.  In the particulars  supplied  by Shri  Abdul  Ghani Dar it was stated that she  received  the pamphlet in the Central Hall of Parliament and Shri  Krishan Kant,  Shri Chandra Shekhar, Shri Jagat Narain, Shri  Shashi Bhushan and  Shri Mohan Dharia  distributed  the  pamphlet among others to this witness. Shri  Patil  Puttappa, M.P., P.W. 50, said that  Shri  Yunus Saleem  was distributing the pamphlet among the  members  in the Central Hall of Parliament and he gave him one copy.  He says that he talked to Shri Saleem and told him that he  was not doing the right thing, and Shri Saleem replied : "It  is none of your business.,, Later on Shri Puttappa said that he saw  Shri Krishan Kant, Shri Chandra Shekhar.   Shri  Shashi Bhushan and Shri Mohan Dharia also distributing the pamphlet in  the Central Hall.  He did not complain to the Watch  and Ward Officer or to the Deputy Speaker, 237 Shri  Khadilkar, and the reason he gave was : "Since  I  had earlier  come to know that Mr. Kanwarlal Gupta  had  earlier complained  to  the  Election Commissioner  and  the  Deputy Speaker of the House, Lok Sabha." He ’stuck to his  position in  cross-examination.He  further stated that  neither  Shri Abdul Ghani Dar nor anybody on his behalf asked him to  come and give evidence and that if Shri Dar said on oath that  he had given information relating to this, that would be false. He  added that till he stepped into the: witness box  nobody had asked him as to what evidence he was, going to give.  In the  particulars  given  by Shri Abdul Ghani  Dar  the  only reference to this witness is in connection with the  alleged distribution  of  the pamphlet on August 9,  1969,  by  Shri

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Shashi Bhushan, and Shri Krishan Kant, to him at 134,  North Avenue  New Delhi.  We may mention that in his  evidence  he does  state  that he received one pamphlet by  post  at  his residence  but he does not say that Shri Shashi Bhushan  and Shri Krishan Kant personally distributed it. Shri  Sher Khan, M.P., P.W. 51, stated that he received  the pamphlet in the Central Hall and three or four persons, Shri Shashi Bhushan, Shri-Krishan Kant, Shri Jagat Narain and two or  three  other persons gave the pamphlet to him  and  they were distributing it openly.  In cross-examination he stated that  be-fore  coming to give evidence in Court he  did  not have conversation with Shri Abdul Ghani Dar or anyone  about what  he  was  going  to  depose  in  the  Court.   In   the particulars  it is stated that he received  the-pamphlet  in the Central Hall of Parliament, and Shri Krishan Kant,  Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan  and Shri  Mohan  Dharia  had distributed  the  pamphlet,.  among others, to this witness. Shri C. M. Kedaria, M.P., P.W. 53, deposed that Shri  Shashi Bhushan  gave  the pamphlet to him in the  Central  Hall  of Parliament  and  the  Young  Turks  were  distributing   the pamphlet.   Among  the  Young, Turks  he  named  Shri  Mohan Dharia,  Shri  Krishan Kant, Shri Arjun Arora,  Shri  Shashi Bhushan,  Shri Chandra Shekhar and others.  It  was  brought out in cross-examination that he was one of the  signatories to a letter, appearing in the issue of National Herald dated August 14, 1969-Ext.  R-7-written to the Congress  President on  August  13, 1969, demanding appropriate  action  against those who did not respect the party mandate in regard to the Presidential election.  He stated that there was no point in complaining  about the distribution of the pamphlet in  the Central  Hall because responsible persons were  distributing it.  His  name  appears  in the particulars as  one  of  the persons who    had received the pamphlet in the Central Hall of Parliament and   that  Shri  Krishan Kant,  Shri  Chandra Shekhar,  Shri  Jagat Narain, Shri Shashi Bhushan  and  Shri Mohan Dharia distributed the pamphlet to him, among others. 238 Shri  N.  Sri  Rama  Reddy,  M.P.,  P.W.  54,  one  of   the petitioners, says that he received the pamphlet both in  the Central  Hall as well as in his house and this pamphlet  was being  distributed  in the Central Hall from  11th  to  15th August.   He received it in the Central Hall either on  the 12th  or on the 15th and received it from Shri Yunus  Saleem and  Shri  Shashi  Bhushan who were  together.   He  further stated  that  from  11th to 15th August he  saw  Shri  Yunus Saleem,  Shri Shashi Bhushan, Shri Krishan Kant, Shri S.  M. Banerjee, Maulana Ishaq, Shri Chandra Shekhar and Shri Mohan Dharia  distributing the pamphlet.  He did not  complain  to the  Watch and Ward Officers because he could never  imagine that "subordinate men should be my authority to complain to. It  never  struck  me  once."  Then  he  said  that  he  had complained  to the Deputy Chairman, who was presiding,  that Shri Yunus Saleem was carrying on these nefarious activities in the house, and then Shri Yunus Saleem ran away.  It seems to  us that he is mistaken that his complaint to the  Deputy Chairman  was about the pamphlet.  From ’the proceedings  of the  House  it appears that his complaint was  regarding  a signature campaign which is alleged to have been carried  on by Shri Yunus Saleem.  In the cross-examination he said that Shri  Chandra Shekhar and Shri Mohan Dharia distributed  the pamphlet only on one day, may be on the 14th or 15th August. We  have outlined the evidence of 12 members  of  Parliament above.   They  all deposed that Shri Shashi  Bhushan,  among others, either gave them the pamphlet in the Central Hall or

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they  saw him distributing the pamphlet in the Central  Hall to others. Shri Shashi Bhushan, M.P., R.W. 38, in his evidence strongly denied the allegations against him; however he admitted that lie received the pamphlet at his residence by post.  He said that  the evidence was totally false and the reason he  gave why Shri Kanwar Lal Gupta made the statement was, in  brief, that  the Jan Sangh party of India was very much angry  with the  witness.   He gave the history of the enmity  which  we need  not set out in detail here.  He said that  looking  to the  relationship of the Jan Sangh and the witness, if  Shri Gupta said so he was not surprised.  He said that "there  is many times conflict with him even in the House.  Over  there several  times  he levelled personal charge against  me.   I also spoke against his brother in the House." Regarding Smt. Jayabehn  Shah’s evidence he said that she deposed  wrongly’ because of political motives.  He gave the political reasons in his evidence, one reason being that Smt.  Jayabehn was  a member  of  the  Birla  lobby  which  was  very  strong   in Parliament and which opposed him strongly in connection with the hunger strike he undertook at the Birla Bhavan in  1968. Regarding Shri N. N. Patel, Shri Shashi Bhushan said that he did not know him and his evidence was incorrect.  He said  : "When I don’t know him how can he talk                             239 to  me."  Regarding Shri Mohan Lal Gautam he said  that  his evidence  was  wrong  and he was a member  of  the  Congress Syndicate and that was the reason why he deposed against the witness.   Regarding the evidence of Shri Pande, the  reason he  gave was that at the time of the hunger strike at  Birla House  Shri C. D. Pande moved about in the Parliament  House Central Hall with a ’flag’ on behalf of Birlas whose ’flag’, symbolically speaking, was permitted in the Parliament.   He characterised  the statement of Shri N. N. Patel  about  the distribution of the pamphlet as being without any basis  and the statement of Shri D. N. Deb as quite wrong.   According, to him, Shri D. N. Deb spoke falsely against him because  he (Shri  Deb)  was a prince (Raja) and the  witness  had  said several  times  in Parliament that those who  presented  the freedom  of India on golden dishes to the Britishers had  no right  to  take the pension as well as engage  in  politics. The  witness further said that Shri Hukam Chand Kachwai  had wrongly  deposed about the giving of the pamphlet and  about the witness talking with him.  According to the witness  the reason  why Shri Kachwai gave this false statement was  that he (Shri Kachwai) "belongs to Jan Sangh party.  He has  come from R.S.S. The R.S.S. believes in Evil Policy  (Kootniti)." Regarding  the  evidence  of  Smt.   Pushpabehn  Mehta,  the witness said that she deposed falsely and the reason he gave was  :  "I am sorry that such an old woman can tell  a  lie. She  may  not  be  able to recognize  me.   One  has  to  do everything  in  politics." Then the witness added  that  she belongs  to  the Syndicate Congress.  Regarding  Shri  Patil Puttappa the witness said that he even did not recognize him and  he could not give the reason why he gave  the  evidence falsely against him.  He characterised the evidence of  both Shri  Sher  Khan  and  Shri C.  M.  Kedaria  as  false.   He attributed  Shri Kedaria’s statement to the fact  that  Shri Kedaria  "is one of the principal’ disciples of Mr.  Morarji Desai.  Everyone knows the relations Mr. Morarji Desai and I have.   It  is  the effect of it.  He is  a  member  of  the Syndicate."  The witness described his relations  with  Shri Morarji  Desai thus : "I have always taken Morarji Desai  as an  opponent of socialism a supporter of  the  capitalists." The witness further said that the statement of Shri Sri Rama

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Reddy  that  he and Shri Yunus Saleem were together  at  the time  and Shri Yunus Saleem gave this pamphlet to Shri  Rama Reddy  was wrong.  He said that Shri Rama Reddy was  unhappy with  him over the hunger strike at Birla Bhavan. even  more than  the Birlas.  The witness further said that  Shri  Rama Reddy’s   statement   that  he  was  one  of   the   persons distributing the pamphlet in the Central Hall from the  11th to  the  15th  August we quite wrong.   He  added:  "He  has freedom  of  speech.  What can I do." He  characterised  the evidence  of Shri N. N. Patel about the distribution of  the pamphlet  as  false.  He stated  in  cross-examination  that "there   was  no  need  of  talking  about   this   pamphlet particularly.  Several persons of 240 course talked to me as happens in the lobby." He admitted in cross-examination  that he had no personal enmity with  Shri Pande,  Smt Jayabehn Shah, Shri Sri Rama Reddy,  Shri  Patil Puttappa,  Shri N. N. Patel, Shri D. N. Deb, Shri Mohan  Lal Gautam.  Shri H. C. Kachwai and Smt.  Pushpabehn Mehta,  and also  no personal enmity with Shri Kanwar Lal Gupta  but  he had  only  political  enmity.  To the  question  :  "Do  you consider  that whoever opposed you politically will  try  to involve  you  in this kind of work,  i.e.,  distribution  of pamphlet,  etc.  ?  he replied :  "They  have  involved  me. Therefore I think so.  The proof is there." In  cross-exami- nation  he  produced a copy of the Lok Sabha  debate,  dated December  5, 1967, to show the enmity between him  and  Shri Kanwar  Lal  Gupta.  There was some  discussion  about  Shri Gupta’s  alleged  brother-we  say  ’,alleged’  because   the petitioner’s counsel tried to suggest that Shri V. M.  Gupta was  not Shri K. L. Gupta’s brother.  The  witness  admitted that he was against Shri Sanjiva Reddy’s nomination from the very  beginning.   It  was  suggested to  him  that  he  was responsible for printing and publishing this pamphlet and he replied:  "I would have committed suicide if I  had  brought out  this  pamphlet." In answer to a Court question  "is  it your  evidence that all this discussion about  the  pamphlet was  going on without a pamphlet being there" he  replied  : "Of course, so many discussions were going on." It will be seen from the evidence of these 12 witnesses that they all deposed to the distribution of the pamphlet by Shri Shashi  Bhushan  and  four of them  deposed  to  the  actual receipt  of  the pamphlet from Shri  Shashi  Bhushan.   Shri Shashi  Bhushan  has denied the allegations.   There  is  no doubt  that  the evidence is conflicting, and  most  of  the witnesses are politically interested.  It is true, as  urged by  Mr. Daphtary, that we cannot judge the evidence by  mere number of members who deposed to the distribution though  we cannot  completely  ignore that fact.  We will have  to  see whether  any  circumstances which are proved on  the  record corroborate one side or the other. 11   witnesses  deposed  that  Shri  Yunus   Saleem   either distributed  the pamphlet or gave it to them in the  Central Hall  of  Parliament.   We  have  already  referred  to  the evidence  of  Shri  Kanwar Lal Gupta, P.W. 11,  Shri  N.  N. Patel,  P.W.  26,  Shri C. D. Pande,  P.W.  29,  Shri  Patil Puttappa P.W. 50 and Shri Sri Rama Reddy P.W. 54.  The other six  witnesses are Shri N. P. C. Naidu, P.W. 17,  Shri  Shiv Narain, P.W. 24, Shri Mahadevappa Rampure, P.W. 35, Shri  D. S.  Raju,  P.W.  49,  Shri Abdul Ghani  Dar,  P.W.  55,  and Chaudhary A. Mohd., P.W. 52. Shri N. P. C. Naidu, P.W. 17, deposed that Shri Yunus Saleem gave  him one pamphlet in the Central Hall on August 1 1  or 12.   He stated that there was a talk between him  and  Shri Yunus Saleem.

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241 He  belongs  to  the Congress Party presided  over  by  Shri Nijalingappa.   No  cross-examination  seems  to  have  been directed on the point of distribution and whether Shri Yunus Saleem  distributed the pamphlet.  It was urged that it  was an oversight. Shri  Shiv Narain, M.P., deposed that apart  from  receiving the  pamphlet  in  his  house  he  saw  the  pamphlet  being distributed in the Central Hall by some gentlemen  including Deputy  Minister  Yunus Saleem, Shri Chandra  Shekhar,  Shri Mohan  Dharia, and Shri Krishan Kant.  He admitted  that  no pamphlet was given to him by these persons.  He stated  that he did not tell Shri Abdul Ghani Dar or Shri Sri Rama  Reddy the  names  of the persons he gave in the  Court  as  having distributed  the  pamphlet.  It is remarkable  that  in  the particulars supplied by Shri Abdul Ghani Dar the witness  is alleged to have received the pamphlet in the Central Hall of Parliament on August 11, 1969, from Shri Jagjivan Ram. Shri  Mahadevappa  Rampure, P.W. 35, M.P., deposed  that  he received the, pamphlet in the Central Hall from Shri  Yunus Saleem  and saw him distributing it.  He further  says  that Shri Yunus Saleem said : "You can go through this  pamphlet. You  will  get  enough  information  about  the   contesting candidates." I He stated that he received information  about the  12th February that he would have to give  evidence  and before  that  he did not have any conversation  either  with Shri  Abdul Ghani Dar or Shri Sri Rama Reddy.   He  admitted that  he did not complain to the Security Officer about  the distribution.   He  could not say to whom  else  Shri  Yunus Saleem  distributed the pamphlet.  His name does not  figure in  the particulars supplied by Shri Abdul Ghani Dar  or  by Shri Sri Rama Reddy. Shri D. S. Raju, M.P., P.W. 49, stated that he received  one copy  of the pamphlet in his house and another copy  in  the Central  Hall  of the Parliament and if he could  trust  his memory,  it was Shri Yunus Saleem who passed it on  to  him. He admitted that when Smt.  Gandhi became the Prime Minister she  did not continue him as one of the Ministers, and  that he  belonged to the party of which Shri Nijalingappa is  the President.  He said that it was incorrect that Shri Jagjivan Ram and some others delivered the pamphlet at his residence. His  name does not figure in the particulars given  by  Shri Abdul  Ghani Dar except that it is stated that  the  persons mentioned  in paragraph 13(b)(iii) of the Election  Petition distributed  the  said pamphlet by leaving the same  at  the residence of the witness. Chaudhary  A.  Mohamed, M.P., P.W. 52, deposed that  he  met Shri  Yunus Saleem in the Central Hall and he  talked  about the  election  and Shri Yunus Saleem said that it  had  been decided  not to vote for Shri Sanjiva Reddy.   While  giving the reasons for this 242 decision  Shri  Yunus Saleem had said that  there  was  some pamphlet  which he had distributed and then gave a  copy  to the  witness.   He stated that he had not  told  Shri  Abdul Ghani  Dar that Shri Jagjivan Ram and others had given  this pamphlet  to him.  In answer to the question : "I put it  to you that Shri Yunus Saleem did not give the pamphlet to  you or  anyone else in your presence ?", he replied :  "You  can say  so.  As the pamphlet was given to me by him, how can  I deny it." It is rather extraordinary that in the particulars supplied  by Shri Abdul Ghani Dar, Shri Krishan  Kant,  Shri Chandra Shekhar, Shri Jagat Narain, Shri Shashi Bhushan, and Shri Mohan Dharia are alleged to have given the pamphlet  to this witness in the Central Hall of Parliament but not  Shri

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Yunus Saleem. Shri.Abdul Ghani Dar, M.P., P.W. 55, one of the petitioners, deposed that Shri Yunus Saleem gave three pamphlets to  him, two in English, one cyclostyled and one printed, and one  in Hindi.   He further deposed that Shri Yunus Saleem took  him aside  and  on  his asking Shri Saleem told  him  about  the contents of the pamphlet.  The witness said that he has  one eye  and  that is also defective, so he could not  read  the pamphlet.  In the Election Petition (No. 5) it was stated in sub-para  13 (b) (iv) that a scare was created in the  minds of  the electors with the direct object of interfering  with the  free exercise of their electoral right to vote for  the candidate of their choice.  It was also stated therein  that "as  a  single instance Shri Yunus  Saleem  approached  Shri Abdul   Ghani  Dar,  member  of  Parliament,  one   of   the petitioners  herein,  and talked to him in  this  behalf  as stated  earlier.  This was said in the presence of a  number of  members  of  Parliament."  Shri  Abdul  Ghani  Dar   was confronted with this statement and asked about the  presence of a number of members of Parliament.  He replied : "I  have even now not denied that where I was, taken no other members were present." In reply to another question he said both his statements,  his statement in sub-para 13 (b) (iv) and  what he stated in Court, were correct.  But in the particulars it is  stated that Shri Yunus Saleem, Shri Shashi  Bhushan  and Shri  Krishan  Kant distributed the said  pamphlet  to  the witness. These  particulars were given on February 7, 1970,  and  his evidence  was  taken on March 5, 1970.  If his  evidence  in Court is true, he clearly Rave false particulars on February 7,  1970.  It is further evident that both his statement  in sub-para  13 (b) (iv) and his statement in Court  cannot  be true.   It  seems to us that Shri Abdul Ghani Dar  gave  the particulars more by guess work than after having ascertained them from the witnesses or persons to whom the witnesses bad spoken.   We  have  no doubt that the  verification  of  the affidavit giving the particulars was false in respect. 243 Shri  M.  Yunus  Saleem, M.P., R.W. 51,  then  Union  Deputy Minister  of  Law,  stated  that  he  had  not  seen  anyone distributing the pamphlet in the Central Hall.  In reply  to the question: "Did you yourself distribute this pamphlet  in the Central Hall or anywhere else as a matter of fact?", he replied  : "No.  A person having a little knowledge of  law, how  can  he  afford  to  indulge  in  such  activities   of distributing  such  pamphlets  in  the  Central  Hall."  The learned  counsel  then  put  the statements  of  these  1  1 witnesses,  which we have extracted above, and he said  that they were all baseless and incorrect.  He further said  that he  had  not  seen  this pamphlet before  the  date  of  his evidence and so the question of his giving this pamphlet  to anyone  hardly  arose.  In connection with the  evidence  of Shri  Sri Rama Reddy and the incident in the Rajya Sabha  he admitted  that  he  was  obtaining  signatures  on  a  paper demanding  freedom  of  vote  in  Rajya  Sabha  before   the commencement of the proceedings in the House and the  moment the  Deputy Chairman appeared and occupied the seat he  also occupied his seat and as he had to go to the other House  he left  his  seat.  He further stated that this  incident  had nothing  to  do  with  the  distribution  of  the  pamphlet. Regarding the evidence of Shri Abdul Ghani Dar he said  that except  that he had a talk with Shri Abdul Ghani  Dar  about the  Presidential  election  every  other  part  of  it  was incorrect.   He gave his own version of the talk which  took place  between him and Shri Abdul.  Ghani Dar.   He  further

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deposed  that Shri Kanwar Lal Gupta deposed falsely  against him because "he belongs to a political organisation which is against  the  political party to which I  belong  and,  also because  in  my  election  I  had  defeated  the  Jan  Sangh candidate from a constituency which was overwhelmingly  non- Muslim constituency and where the security of the Jan  Sangh candidate was forfeited." As far as Shri Abdul Ghani Dar was concerned  he said that he bad deposed againist him  because "perhaps  be  is in the habit of writing false  letters  and filing  false affidavits and attacking persons who  do  ’not agree  with  him in his political ideas." In answer  to  the question : "Why Shri Mahadevappa Rampure deposed against you ?",  he said : "Because he is from the Mysore State  and  is under  the influence of Shri Nijalingappa, perhaps in  order to  please  him  and  gain his  favour."  The  witness  also referred  to  a report circulated by Shri  Abdul  Ghani  Dar after his return from, Hai in which Shri Abdul Ghani Dar had attacked  Shri Yunus Saleem.  The witness admitted that  lie was  an  active supporter of Shri V. V.  Giri.   He  further stated   that  Shri  Shashi  Bhushan  was  also  an   active supporter.   He further admitted that he was supporting  the move  for  freedom  of vote which implied  freedom  to  vote against the official candidate.  He further admitted that he was  one  of those persons who was not very happy  from  the very  beginning at the way the official candidate  had  been selected  by the Parliamentary Board.  He also deposed  that he never saw Shri Giri during the election period. 244 He  characterised as absolutely wrong and incorrect that  he was  in  constant touch with Shri V. V.  Giri.   He  further deposed that Shri Naidu and Shri Sanjiva Reddy were personal friends and Shri Naidu was canvassing for Shri Sanjiva Reddy in  the Central Hall.  He denied the suggestion that he  was carrying the pamphlets with him.  In answer to the  question : "You’ did not show those papers to Mr. Raj Narain. because you  were carrying pamphlets with you and that  would  have exposed  you further ?", he replied : "It is  incorrect  and contrary  to  the proceedings of the Rajya  Sabha."  To  the question:  "Mr.   Kanwar Lal Gupta moved a motion  that  the debate on the motion be adjourned and he wanted the House to discuss  what  was happening in the Central Hall  about  the signature  and  thereafter reference was made  to  character assassination.  Were you present there ?", he answered : "No such motion was moved during my presence in the Lok  Sabha." He was asked whether he came to know that a point of  order had been raised in the Lok Sabha on August 14, 1970, and  he replied; "No body told me about it." We will presently refer to the proceedings in the Lok Sabha. We  may mention that he was cross-examined at  great  length and  his cross-examination covers nearly 55 pages.   Various questions  were asked about his early career, his  political association and views, etc., but we do not find it necessary to mention these because these do not assist ’us in weighing his evidence. Shri  Yunus Saleem has completely contradicted the  evidence of  the  11 witnesses, all members of  Parliament.   It  is, however, remarkable that in the particulars supplied by Shri Abdul  Ghani Dar the only person to whom he is  supposed  to have  distributed  the  pamphlet is  Shri  Abdul  Ghani  Dar himself.   From the particulars nobody could  have  imagined that  Shri Yunus Saleem played such a prominent part in  the distribution of the pamphlet in the Central Hall, as  stated by  the petitioners’ witnesses.  Seven witnesses deposed  to receiving the pamphlet from him.  In these circumstances  we will have to see whether any circumstances have been  proved

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on record which corroborate one side or the other. We may next take the batch of witnesses ’who deposed to Shri Krishan Kant having distributed the pamphlet in the  Central Hall  These witnesses are Shri K. S. Chavda, P.W.  12,  Shri Shiv Narain, P.W. 24, Shri C. D. Pande, P.W. 29, Shri  Patil Puttappa,  P.W.  50,  Shri Sher Khan, P.W. 51,  Shri  C.  M. Kedaria, P.W. 53, and Shri Sri Rama Reddy, P.W. 54.  We have already extracted the relevant evidence of six witnesses and the  only  witness  whose evidence we  have  not  considered before is Shri K. S. Chavda, P.W. 12. Shri K. S. Chavda, M.P., said that he received the  pamphlet in  his house and Shri Krishan Kant, member of Rajya  Sabha, gave 245 it to him in the Central Hall. He is one or the persons  who entirely  changed  his mind about voting  for  Shri  Sanjiva Reddy after reading the pamphlet.  No cross-examination  was directed  in particular to the question of  distribution  by Shri  Krishan  Kant.  In the particulars it is  stated  that Shri Krishan Kant, Shri Chandra Shekhar, Shri Jagat  Narain, Shri  Shashi Bhushan and Shri Mohan Dharia  had  distributed the  pamphlet  to  members  of  Parliament,  including  this witness. Shri  Krishan  Kant,  M.P.,  R.W. 3  2,  in  answer  to  the question: "Will you please see this pamphlet ? Have you ever seen this pamphlet before?" stated; "I am seeing it for  the first  time".   In view of this statement,  when  confronted with   the   evidence  of  these  witnesses   he   naturally characterised their evidence as "atrocious lie," "absolutely wrong"  etc.   He, however, admitted that  some  people  had talked  to him about the pamphlet and told him that  such  a pamphlet using some filthy and derogatory language had  been written.  His immediate reaction then was that some enemy of Shri  Giri had done it.  He further stated that Shri  K.  R. Ganesh, M.P., talked to him about the pamphlet though not in detail.  This talk must have been either in the lobby or  in the  Central Hall.  He further stated that at the time  Shri Ganesh talked to him he was the supporter of Shri Giri,  and that  he never met Shri V. V. Giri during the whole  of  the election.  He described/the suggestion that he alongwith his colleagues  were  responsible  for  the  drafting  of   this pamphlet and getting it published as utterly scandalous.  He said that there was no foundation in the allegation that  he distributed the pamphlet in the Central Hall from the 9th to the 16th August.  In re-examination he was asked the reasons why the persons, who had stated that he had distributed  the pamphlet to them, had given false evidence.  He replied that the only reason possible could be political opposition,  and by  that  he  meant that they were the  supporters  of  Shri Sanjiva  Reddy. Here again there is direct conflict  between the  evidence  of  Shri  Krishan  Kant,  M.P.,  and  of  the witnesses whom we have just discussed. Coming to the evidence relating to the distribution by  Shri Chandra  Shekhar,  it  consists  of  the  evidence  of   six witnesses; Shri Shiv Narain, P.W. 24, Shri N. N. Patel, P.W. 26,  Shri H. C. Kachwai, P.W. 32, Shri Suraj Bhan, P.W.  33, Shri Patil Puttappa, P.W. 50, and Shri Shri Rama Reddy, P.W. 54.  We have already extracted the relevant evidence’ of the witnesses other than Shri Suraj Bhan, M.P. He stated that he saw  the pamphlet being distributed in Parliament  House  by Shri  Amrit Nahata, Shri Chandra Shekhar,  Shri  Chandrajeet Yadav and so many others.  The witness belongs to the Jan 246 Sangh  party.   He said that he did not  mention  that  Shri Jagjivan Ram and 11 other persons distributed the  pamphlet.

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He further admitted that he did not tell Shri Sri Rama Reddy or  Shri Abdul Ghani Dar that the pamphlet was given to  him in the Central Hall between the 11th and the 15th of  August by  Shri Jagjivan Ram and others.  In the particulars he  is one  of the members of Parliament who is supposed  to  have been  given this pamphlet in the Central Hall of  Parliament by Shri Jagjivan Ram and 11 others. Shri Chandra Shekhar himself appeared in the witness box  as R.W.  5. He stated that he did not actually see  these  pam- phlets but a portion of the pamphlet in English was read out to him by a friend.  He denied having distributed copies  of the  pamphlet,  either  the English  version  or  the  Hindi version,   to other  persons  in  the  Central   Hall   of Parliament.  He described the evidence of Shri Suraj Bhan as mere concoction and the evidence of Shri Kachwai as  totally wrong.  It may be mentioned that on the morning of August  9 he went to Calcutta by plane and was in Calcutta on the  9th and  10th August.  On the 11th morning he left  Calcutta  by plane for Patna and he was in Patna on the 11th, and on  the 12th morning he was due to leave for Delhi but his plane was delayed and he reached Delhi sometime in the evening of  the 12th.   So, if he did distribute the pamphlet it  must  have been  only on the 13th and 14th for he says that he did  not go to Parliament on the 15th as it was a holiday.  In cross- examination  he  said that he had no  discussion  about  the pamphlet  because  no serious person would  discuss  such  a thing.  He, only beard whisperings about the pamphlet.   But even  after coming to know about the whisperings he did  not know that the pamphlet was in circulation.  He characterised the suggestion that the pamphlet was prepared and  published with  his  knowledge  and after consultations  with  him  as unfounded,   incorrect,  mischievous  and  scandalous.    He admitted  that  he  had  demanded  the  resignation  of  the Congress  President  on August 14, 1969, but  said  that  he demanded it on certain conditions. The  evidence of Shri Chandra Shekhar and of the  other  six members  of  Parliament, which we have extracted  above,  is conflicting  and  we  will have to  look  for  corroborating circumstances Five,  witnesses  deposed  to Shri Mohan  Dharia,  M.P.,  as having  distributed  the pamphlet in the Central  Hall.   We have  already extracted the relevant evidence of  Shri  Shiv Narain,  P.W. 24, Shri H. C. Kachwai, P.W-. 32,  Shri  Patil Puttappa,  P.W. 50, Shri Kedaria, P.W. 53, and Shri  N.  Sri Rama Reddy, P.W. 54. 247 Shri Mohan Dharia, M.P., R.W. 17, admitted that the pamphlet in  English  came  to him by post and that  he  had  glanced through it He characterised it as baseless, filthy and  said that  as  it was not signed by anybody he did not  take  any serious  notice  of  it and ignored it.  In  answer  to  the question : "Did you distribute this pamphlet in the  Central Hall  to  anybody  on any day?", he said  :  "I  have  never distributed  this  pamphlet.  I have no relation  with  this pamphlet.   On the contrary I would like to tell that I  was not  supporting Mr. Giri, but I was supporting Mr. Reddy  at that  time."  In  this statement he is  supported  by  other witnesses.  He said that when he was at Nagpur on August  9, 1969,  he  participated in as many as eight  programmes  and there  was  one  Press Conference besides,  wherein  he  had categorically  said  that  Shri  Reddy  would  win  in   the Presidential  election.  In an issue of Daily  Tarun  Bharat dated  August 10. 1969, the report of his  Press  Conference was published, translation of which was marked Ext.  R  12A. The report reads :

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             "The decision of setting up Shri Sanjiva Reddy               for  the Presidential election has been  taken               by the Congress Party and it is binding on all               from   Prime  Minister  to  ordinary   Member.               Besides, Shri Reddy has created respect in the               minds of Members of Parliament because of  his               impartial   regime   as  Speaker.    On   this               background Shri Mohan Dharia, M.P., leader  of               Young   Turks,,   in   a   Press   Conference,               confidently expressed the certainty of success               of Shri Reddy in presidential election."               He  admitted that his attitude in relation  to               the  Presidential election remained  the  same               till.  the 16th August, the day  of’  polling.               He  was not shaken in  his  cross-examination.               He  was  asked  whether he  made  any  similar               statement like th, statement he made on August               9,  1969,  and he replied that  there  was  no               occasion of meeting the press after the  11th.               He was confronted with a despatch in the Times               of  India, dated August 12. 1969,  from  Patna               which appeared in the Times of India on August               12, 1969, which reads :               "Three ’Young Turks’ today condemned what they               described as a move by the "Syndicate" in  the               Congress   to  forge  an  alliance  with   the               Swatantra Party and the Jan Sangh.               Mr. Chandra Shekhar, Mr. Mohan Dharia and Mr..               Shanti Kothari, all MPs, expressed concern  at               the  recent  developments  in  New  Delhi  and               pointed  out  that  the  Congress  President’s               "overtures" to Jan Sangh and Swatantra leaders               had "deeper implications."               248               In  a  joint  statement,  they  supported  the               action of Mr. Jagjivan Ram and Mr.  Fakhruddin               Ali   Ahmed,  Union  Ministers,   in   seeking               clarifications   in  this  regard   from   Mr.               Nijalingappa." He replied that the despatch was correct but it was not  his statement.   He further said that on the 14th  August  there was  a  meeting  of the MPs from  Maharashtra  and  in  that meeting  he again had occasion to declare publicly  that  he stood  for Shri Sanjiva Reddy in the Presidential  election. He  admitted that not only did he sign the  requisition  for calling  the A.I.C.C. meeting for the Delhi Session  but  he was also one of the campaigners to have that meeting called. He denied seeing anybody discussing the pamphlet because  he said that he was hardly there for more than one or two days; he  was in Nagpur on the 9th, and the 15th. was  a  holiday. He  characterised the suggestion that he and the  other  so- called  Young Turks were responsible for the publication  of this  pamphlet as absolutely false, frivolous, baseless  and so  far  as he was concerned it  was  absolutely  defamatory because he had worked for Mr. Reddy and would not issue such statements Besides, in his career he had never done so.   He recognised Shri Y. B. Chavan as his leader and he said  that Shri Y. V. Chavan supported Shri Sanjiva Reddy. In  view  of  his  statement  and  the  statement  of  other witnesses that he was a supporter of Shri Reddy it would  be difficult  to hold that he would be a party to  distributing the  pamphlet,.  unless there are some  other  circumstances which  corroborate  the  evidence  given  by  the  witnesses implicating Shri Mohan Dharia. Two  witnesses  named  Shri Amrit Nahata,  M.P.,  as  having

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distributed  the pamphlet; Shri Venkatasubbiah, P.W. 13  and Shri Suraj Bhan, P.W. 33.  Shri Venkatasubbiah said that  he saw it being distributed in the Central Hall by some members of Parliament.  To the question; "Can you name anyone ?", he answered;  "I cannot because so many days have  elapsed.   I remember  to  some  extent  Mr. Amrit  Nahata  I  have  seen distributing." He further said that he did not receive it in the Central Hall.  We have already referred to the  evidence of  Shri  Suraj Bhan, M.P., P.W. 33.  He  named  Shri  Amrit Nahata as one of the distributors. Shri  Amrit  Nahata, R.W. 3, admitted that he  received  the pamphlet  by post but said that he just threw it  away.   He further  deposed  that he did not hear any  talk  about  the pamphlet   in   the  Central  Hall.    He   described   Shri Venkatasubbiah’s  evidence  regarding  distribution  of  the pamphlet as a blatant lie.  He also characterised Shri Suraj Bhan’s  evidence naming the witness as a distributor of  the pamphlet as absolutely incorrect. 249 Here  we  have two members of Parliament  saying  that  Shri Amrit  Nahata was distributing the pamphlet in  the  Central Hall,while   Shri  Amrit  Nahata  has  flatly   denied   the allegation.   Further  Shri  Venkatasubbiah  was  not   very definite,   though  no  questions  were  asked   in   cross- examination to elicit why he remembered Shri Amrit  Nahata’s name  to  some  extent.   Nor  was  any  question  asked  to establish  any personal or political animosity between  Shri Amrit  Nahata  and  the two witnesses.  His  name  does  not appear  in  the particulars given by Shri Abdul  Ghani  Dar, though his name does appear in the particulars given by Shri Sri Rama Reddy. On  this evidence it would be difficult to hold that it  has been  proved  that  Shri Amrit Nahata  had  distributed  the pamphlet unless some corroboration is forthcoming. This leaves us to deal with five other alleged  distributors of  pamphlets in the Central Hall.  They have one  thing  in common.  Only one witness in each case saw them distributing the pamphlet.  Shri Jagat Narain, M.P., R.W. 25, was seen by Shri Sher Khan, P.W. 51, distributing the pamphlet with Shri Shashi  Bhushan,, and Shri Krishan Kant.  Shri Jagat  Narain deposed that he did not receive any pamphlet and saw it  for the  first  time  in  Court.   He  further  says  that   his correspondent-the  witness has connection with  a  newspaper Hind  samachar  Shri Suri, who represented  the  paper  from Delhi  asked  him  in the first or second  week-  of  August whether  he had received the pamphlet or not.  He said  that the evidence of Shri Sher Khan, M.P., was not true.  It  is. difficult to believe that he never came across the  pamphlet and saw it for the first time in Court.  He was a journalist and  the query of Shri Suri would at least have set  him  on the trail. Shri  N.  Sri  Rama Reddy, P.W. 54, said  that  Shri  S.  M. Banerjee  was  one of the persons who was  distributing  the pamphlet  in  the Central Hall and he had named him  in  the petition.   Shri  S.  M. Banerjee, M.P.,  R.W.  31,  who  is politically  with  the Communist Party of India,  headed  by Shri  S.  A. Dange, stated that "a pamphlet was sent  to  my address by post and when my wife told me that this  pamphlet contained  certain  things  which  according  to,  her  were altogether rubbish and that it was anonymous I asked her  to tear  it off." He characterised Shri Sri Rama  Reddy’s  evi- dence  regarding him as absolutely false and malicious.   He admitted  that some members of Parliament had talked to  him and’  told him that there was a very nasty  pamphlet  issued against Shri Sanjiva Reddy but he did not think it necessary

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to make further enquiries.  In answer to the question:  "Who were  the persons who talked to you about this pamphlet  ?", he replied : "Many people, it was the talk of the day."  The cross-examination further proceeded thus 250 Q.   Kindly give some names ? A.   My  own group.  Members of Parliament and some of  them did talk to me about this pamphlet. PC. In the Central Hall ? A.   In  the  Central  Hall,  lobby  and  even  outside  the Parliament.   But I told them we were more interested in  an ideological fight than this character assassination. His  evidence clearly corroborates the evidence of P.Ws.  to this extent that the pamphlet was the talk of the day.   We will  examine  the implications of his  statement  a  little later. On this evidence it would be difficult to hold that Shri  S. M. Banerjee was one of the distributors unless there is some independent corroboration. Shri  Jagjivan Ram, M.P., R.W. 52, was named by Shri  H.  C. Kachwai,  M.P., P.W. 32, who said that Shri  Shashi  Bhushan and  Shri  Jagjivan  Ram gave the pamphlet  to  him  in  the Central  Hall.  Later he clarified that Shri Shashi  Bhushan and Shri Jagjivan Ram came separately and Shri Jagjivan Ram also  gave  him  a  similar  pamphlet.   Shri  Jagjivan  Ram characterised  this  part  of the evidence  of  Shri  H.  C. Kachwai  as entirely and completely false.  He further  said that  Shri Kachwai belonged to Ian Sangh, which  party  was, due  to the Presidential election, more virulent  about  the Congress  than usual.  We may mention that he said  that  he did not receive the pamphlet by post or in the Central  Hall and lie did not see any distribution in the Central Hall  or hear any discussion about this pamphlet during that  period, although he used to go to the Central Hall practically every day  after the Question hour and usually sat there for  half an hour. In  the  ’particulars given by Shri Abdul Ghani  Dar  it  is stated  that Shri Jagjivan Ram distributed the  pamphlet  to Shri  Shiv Narain, M.P., and Shri Hukam Chand Kachwai,  M.P. Shri  Shiv Narain, P.W. 24, did not implicate him though  he implicated  others.  Shri Jagjivan Ram was at  the  relevant time a Cabinet Minister and one of the important leaders  of the  Congress  Party.   If he was going  to  distribute  the pamphlet   it  is  difficult  to  believe  that  he   would. distribute it to one member of Parliament only and that  too to a member belonging to the Jan Sangh.  If he was going  to distribute we would expect him to approach many members of Parliament and play a leading part.  In the circumstances we cannot hold it proved that Shri Jagjivan Ram distributed the pamphlet  in  the Central Hall unless there  is  independent corroboration. 251 Shri  Chandrajeet  Yadav, M.P., R.W. 56, was  seen  by  Shri Suraj  Bhan,  P.W.  33, distributing  the  pamphlet  in  the Central  Hall. The latter belongs to the Jan  Sangh.   Shri Chandrajeet  Yadav,  in his evidence, said that  Shri  Suraj Bhan  had’ made a completely false and baseless  allegation. Actually he would deem it below his dignity to distribute  a pamphlet  of this nature.  He guessed that Shri  Suraj  Bhan had  named him because he had always attacked the policy  of Jan Sangh.  He said that although two friends talked to him. about  the  pamphlet  at  a function he  had  not  seen  the pamphlet till he came to this Court. On  this state of evidence was cannot hold it to  be  proved that  Shri Chandrajit Yadav distributed the pamphlet  unless

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there is some independent corroboration. Maulana Ishaq Sambhali, M.P., R.W. 57, is implicated by Shri Sri Rama Reddy, P.W. 54, who said that he saw Maulana  Ishaq and others distributing the pamphlet and he had named him in the  particulars supplied by him.  Maulana  Ishaq  Sambhali, when  showed this evidence, deposed : "I am sorry if he  has mentioned  my  name for distributing the  pamphlet.   It  is totally  false and incorrect." He further said that  he  was elected  on the Communist Party of India ticket  and  worked for  Shri  V. V. Giri, spoke to members  of  Parliament  and approached  M.L.As. of his state (Uttar Pradesh).   He  also said  that  he  did not hear any talk  about  this  pamphlet before the tiling of this petition. On this evidence we cannot hold it proved that Maulana Ishaq Sambhali distributed the pamphlet in the Central Hall unless there is corroboration. Apart from what we have already noticed, the petitioners led evidence  to  show  that the pamphlet was  not  only  widely distributed but also talked about for two to three days. Shri S. K. Patil, M.P., P.W. 16, said : "It was the talk  of the  town.  In the Central Hall and wherever we went,  there was nothing except this pamphlet."They considered what to do but  could  do nothing.  He tried to trace  the  Press  "but there was nothing." Shrimati Tarkeshwari Sinha, M.P., P.W. 34, said that she did not  see the pamphlet being distributed but found  that  the pamphlet had become the subject-matter of discussion in  the Central  Hall  amongst all groups and in the  Ladies  lounge where  they  generally went and sat.  We will refer  to  her alleged visit to Shri V. V. Giri later. 252 Shri Ram Krishan Gupta, M.P., P.W. 43, said that he received the  pamphlet  in the house and he saw  the  pamphlet  being distributed in the Central Hall but did not receive it there and could not remember who was distributing.  We will  refer to  his evidence regarding his alleged visit to Shri  V.  V. Giri later. Shri  Morarji Desai, M.P.,, P.W. 39, said that  he  received the pamphlet by post.  He gave the following reasons for not doing  anything  : "I could not do much about  the  pamphlet because  one cannot merely deny it.  One has to give  facts. There  are so many people mentioned anonymously in  it.   It would  take a long time to enquire.  Within two days it  was not  possible  to  find  out  anything  to  contradict  this effectively.  It would also mean that mere denial would give more  prominence  to it and make its circulation  even  more effective."  He  said that in his statement printed  in  the Hindustan Times of August 15, 1969-Ext.  R 6--he  indirectly referred to the pamphlet in the following sentence : "All of us  have  at  different  times received  our  share  of  mud slinging,  criticism or hostility, but the Organisation  has remained  supreme  over individuals and bodies and  we  have served it loyally and faithfully." (emphasis supplied) Shri  S.  Nijalingappa, P.W. 47, who was  President  of  the Indian  National  Congress  in August  1969,  said  that  he received the pamphlet on 11th or 12th August but did not try to  find  out who were the persons who  had  published  this pamphlet,  because in the first place it would be  difficult and in the second place the more he looked into  and  made enquiries, it would possibly receive greater publicity which he  wanted  to  avoid.  He further said that quite  a  few Members of Parliament brought the pamphlet to his notice. Shri M. S. Gurupadaswami, M.P., P.W. 48, then a Minister (He ceased  to be a Minister on October 17,, 1967) said that  he received  the pamphlet by post.  To the question:  "Did  you

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come  across  this pamphlet in Parliament?", he  answered  : "Yes.   I saw the pamphlet being read by many people in  the Central Hall of Parliament." He added that he did not see it being distributed but only read. Before  dealing with the evidence of the  respondent’s  wit- nesses  we may deal with certain  contemporaneous  documents and debates in Parliament on which the petitioners rely. Shri Madhu Limaye, M.P., P.W. 8, wrote to the Chief Election Commissioner  on  August  13, 1969-Ext.  7  P17-  about  the pamphlet.  This letter does not say anything about distribu- tion  in the Central Hall of Parliament but it  corroborates the  case of distribution.  He deposed that he feared  that it might affect 253 the  chances  of  his Presidential  candidate,  meaning  the respondent,  and  it  would  affect  the  validity  of   the election.   We have already mentioned that he wrote  to  the Prime Minister whose reply we have already referred to. Shri  Kanwar Lal Gupta, M.P., P.W. 11, wrote a letter,  Ext. 237, on August 14, 1969- to the Chief Election Commissioner. it  is  urged  that the first para  of  the  letter  clearly indicates distribution in the Central Hall.  The first  para reads:               "  The Prime Minister, along with some of  her               colleagues   in  the  Ministry,  are   putting               pressure on some Members of Parliament to vote               for  Shri V. V. Giri, who is a  candidate  for               the  post of President.  A signature  campaign               is also going on in the Parliament.  Money  is               being  offered  to some members who  vote  for               Shri  V.  V. Giri.   Moreover,  pamphlets  are               being distributed in which vulgar charges have               been  levelled against another  candidate  for               this high office.  Character assassination  is               going on.  I am sending a copy of the pamphlet               in  which vulgar and filthy attacks have  been               made  against  Shri N.  Sanjiva  Reddy.   This               amounts to corrupt practice under the Election               Law.  These pamphlets are being distributed by               the supporters of the Prime Minister.  Shri M.               Yunus  Saleem, a Minister in her  Cabinet  and               some others are very active in it." It  is  urged that the words "moreover pamphlets  are  being distributed"  and "these pamphlets are being distributed  by the supporters of the Prime Minister.  Shri M. Yunus Saleem, a Minister in her Cabinet and some others are very active in it" and read together and properly interpreted mean that the pamphlets were being distributed in ways other than by post; it  is  nobody’s case that Shri Yunus Saleem was  active  in distributing the pamphlet by post.  On the respondent’s side it  is  urged that the words "are very active  in  it"  have reference  not  to distribution of the pamphlet but  to  the signature campaign.  This is also a possible  interpretation but  we  are  of  the opinion  that,  in  the  context,  the interpretation suggested by the petitioners is correct.   If the respondents interpretation were correct, we would except some  other word to ’be used than "distributed" and  further the  word  "being would not have been used and  instead  the words  "have  been" would have been employed.   Further,  if reference  is  to distribution by post it is  nobody’s  case that  the supporters of the Prime Minister were,  doing  it. No  body then knew and no body even now knows  who  actually posted  them.   It  may have been  done  by  supporters  not belonging  to the Congress Party.  But having  seen  persons actually  distributing the pamphlets the writer  could  very

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well  use the expression "supporters of the Prime  Minister" In our opinion, this 254 letter; which is contemporaneous, strongly corroborates  the story  told by the petitioners’ witnesses that some  persons alleged  to  be the supporters of the  Prime  Minister  were distributing the pamphlet in a way other than through  post. Reading the letter as a, whole we would interpret the  words "active  in  it"  as  active  in  distribution  because  the sentence in which it occurs follows immediately the sentence "these pamphlets are being distributed by the supporters  of the Prime Minister." Shri Kanwar Lal Gupta has, in his evidence, implicated  Shri Yunus  Saleem and Shri Shashi Bhushan though he also  stated that  there were many others.  This letter corroborates  his version.   At  the time he wrote there was  no  question  of creating  evidence  for a possible election  petition.   His letter was even mentioned in a news item. Reliance was also placed on a number of proceedings in  Par- liament,  but we find that the only proceeding that  assists the petitioners is that in the Lok Sabha on August 13, 1969, when  discussion took place on a submission under  Rule  340 made by Shri Kanwar Lal Gupta.  Shri Om Prakash Tyagi said:               "I am not going to surrender  (interruptions).               Just  now,  a minister  was  questioned  about               obtaining signatures and objection was  before               there.  I want to inform, you that even  dirty               pamphlets  are being distributed.  On  reading               which   one’s  head  goes  down  with   shame.               Therefore  I request you that the motion  pre-               sented by Shri Gupta Ji should be put to vote.               False  propaganda  which is going  on  in  the               lobbies should be stopped." These statements obviously allude to the distribution of the pamphlet in the premises of Parliament. Now  let  us  look  at the  evidence  of  witnesses  of  the respondent  other. than those alleged to be distributors  of the pamphlet in the Central Hall.  Apart from the M.Ps.  who are alleged to have distributed the pamphlet in the  Central Hall, 14 other M.Ps. who have been examined on behalf of the respondent  depose  on  the point  of  distribution  of  the pamphlet  and  discussion  about  it.   These  are  Sarvshri Munshir  Ahmed  Khan,  R.W. 2, M. Anandani, R.W.  4,  R.  K. Sinha,  R.W. 8, Smt.  Savitri Shyam, R.W. II  Sarvshri  Syed Ahmad  Agha, R.W. 10, P.M. Syed, R.W. 13, M. V.  Krishnappa, R.W.   22,   Gulabrao  Raghunathrao  Patil,  R.W.   29,   P. Viswainbharan,  R.W. 39, I. K. Gujral, R.W.  40,  Fakhruddin Ali  Ahmed,  R.W. 44, T. D. Kamble, R.W. 46,  Raghu  Ramiah, R.W.  47, and Tulsi Das, R.W. 50.  All of them (except  Shri Kamble.   R.W 46, who was away from Delhi from 8th  to  14th August  and did not go to the Central Hall on  15th  August) said that they saw                             255 no distribution of the pamphlet in the Central Hall.  Ten of them said that there was no discussion about the pamphlet in the  Central Hall.  One lady member said that there  was  no discussion  in the Ladies Lounge.  Two (R.W. 4 and  R.W.  8) have  admitted  that there was discussion.   Five-  admitted having  received the pamphlet by post (R.W. 2, R.W. 3,  R.W. 8,  R.W.  11 and R.W.13). It is not necessary  to  refer  to their  evidence in detail because it is possible that  these witnesses  did not see distribution of the pamphlet  in  the Central  Hall.  Some of the petitioners’ witnesses also  did not see distribution with their own eyes.  The Central  Hall was  stated to be a big place, having as many as  396  fixed

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seats.   A  member sitting on one side may not  be  able  to observe  what  is happening on the other side of  the  Hall. But  it is hardly believable that when the pamphlet was  the talk  of the town, as admitted even by Shri S. M.  Banerjee, these  M.Ps. did not discuss, however casually, or  hear  or overhear discussion about the pamphlet. Some  of the alleged distributors have also  denied  hearing talk  or discussion about the pamphlet.  We find it  equally difficult to believe them in this respect. We  may add that Shri Dinesh Singh (who is not  included  in the M.P.s mentioned above) stated in cross-examination  that he  came across the pamphlet and glanced through  it.   Both sides  refrained from asking him about distribution  of  the pamphlet in the Central Hall.  But the omission on the  part of  the counsel for the respondent to ask him about  it  has some significance. We  may  here  briefly  refer to the  evidence  of  Shri  M. Anandam,  R. W. 4, and Shri R. K. Sinha, R. W. 8,  as  their evidence  lends  support to some extent to the case  of  the petitioners.  Shri M. Anandam, M.P. deposed that he received the pamphlet (Ext.  P 18/B) in English by post, just glanced through  it and it was in such filthy language that he  just threw it away.  He saw no one distributing it in the Central Hall.   To  the question : "Do you remember  any  discussion about  this  pamphlet in the Central Hall?", he  answered  : "There was a discussion amongst some members and some of  us felt that this was in such a filthy language and  scurrilous language  that no body should go down to that level for  the purpose  of propaganda and we felt that at least members  of Parliament   would  decide  issues  like  the   Presidential election  on better considerations.  Therefore.  we  ignored the  pamphlet."  He said that he belonged  to  the  Congress Party headed by Shri Jagjivan Ram.  In cross-examination  he said: "There was discussion about this amongst some  members of  Parliament who had received it by post" and that he  did not see the pamphlet in anybody’s hand. Shri R. K. Sinha, M.P., R.W. 8, in his  examination-in-chief said that he did not see anyone distributing the pamphlet in the 256 Central  Hall,  but  there was  some  discussion  about  the pamphlet with friends about this.  He, however, did not join the  discussion  but only overheard.  He  characterised  the suggestion that was "one of the persons responsible for  the publication  and  distribution of the pamphlet  as  ’wrong,’ ’blasphemous’, ’total lie’.  He said that he never read  the pamphlet  but he knew about it because in the  Central  Hall friends  had  told  him that this was a  highly  vulgar  and spurious  pamphlet.   He  further  said  that  one  or   two journalists and probably Shri Balraj Madhok were  discussing it and brought it to his notice.  He further added that "may be  Justice  Mulla  was there".  He also said  that  to  his knowledge  the  pamphlet reached members  of  Parliament  by post. These witnesses support the case of the petitioners at least to this extent that there was discussion about the  pamphlet in the Central Hall. In  this connection the respondent’s learned counsel  relied on the statements of Shri Mohanlal Sukhadia, Chief  Minister Rajasthan,  R.W.  42, and Shri V. P.  Naik,  Chief  Minister Maharashtra,  R.W. 43.  The former deposed that he  came  to Delhi  on  the 12th or 13th August and many  Congress  M.P.s came to see him but nobody mentioned these pamphlets.   Even Shri Nijalingappa, Shri Morarji Desai or Shri Chavan did not speak   about  them  to  him.   Further,  although  he   had

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telephonic  talk with Shri Nijalingappa, so far as he  could remember  there was no talk about the pamphlet.  He  further deposed  that when he came to Delhi on 24th August he  heard no complaint from any of the leaders or otherwise about  the pamphlet.  Neither was there any talk in the meeting of  the Working Committee on August 25.  We may mention that various witnesses  support  his  version regarding  the  meeting  of August 25.  He further said that nobody in Jaipur  mentioned to  him about the pamphlets and he did not see  them  there. Shri V. P. Naik said that he came to Delhi often during  the election  period  in August and no one spoke  to  him  about these  pamphlets.  Neither was anything said to  him  during the  course  of telephonic conversation, which he  had  with members  of Parliament, and Shri Nijalingappa.   He  further said  that  he was in Delhi about the 20th August,  met  the Prime Minister, the Home Minister and Shri Nijalingappa, but none of them made any complaint about these pamphlets. It  is difficult to appreciate how the evidence of  the  two Chief Ministers helps us on the question of distribution  of the  pamphlet.  Since the Prime Minister and so may  members of Parliament have admitted receipt of the pamphlet by post, at the most the only inference that can be drawn is that the Prime  Minister and other members of Parliament who met  the two Chief Ministers did not think it advisable or  important to talk about it to the two Chief 257 Ministers.   We  can, therefore, hardly draw  the  inference that no discussion of the pamphlet took place. Viewing  the evidence as a whole we are of the opinion  that the pamphlet was distributed by post and in the Central Hall of  Parliament by some members of Parliament and  there  was wide  discussion about it in the Central Hall.. As  we  have mentioned  earlier,  the evidence of the  witnesses  of  the petitioners that there was distribution in the Central  Hall is corroborated by contemporaneous documents. On the question as to who were the persons who were  distri- buting  the pamphlet in the Central Hall it is not,  in  our opinion, necessary for us to arrive at a finding from a mass of  evidence  which is both conflicting and  partisan.   The distribution of the pamphlet in the Central Hall was  relied on  by the petitioners for the purpose of bringing  home  to the   respondent  knowledge  about  the  pamphlet  and   its publication  and his connection with it.   The  petitioners, however,  have  failed  in their object, for,  there  is  no evidence whatsoever to show that the respondent had any con- nection with the pamphlet or with its distribution.  Nor  is there  any evidence to show that anyone connected  with  the distribution either through the post or in the Central  Hall had any contact with the respondent, or that he  distributed it  with  his  knowledge or  connivance.   The  question  of identity  of those who distributed it in the  Central  Hall, therefore, has in these circumstances become unnecessary and even  futile.  What is also equally important is that  there is no provision in the Act for giving notice to and  hearing persons  alleged to be the distributors.  A finding  that  a particular  member  or members of Parliament  committed  the offence  of publication, an act punishable under  the  Penal Code,  would  thus amount to a finding  arrived  at  without giving such person or persons an opportunity of being heard. It  was  urged  on  behalf  of  the  petitioners  that   the respondent,   Shri   V.  V.  Giri,  had  connived   at   the distribution  of  the  pamphlet.   Before  we  examine   the evidence  relied  on  behalf of  the  petitioners  to  prove connivance, it is necessary to give a few particulars  about the  house  where Shri V. V. Giri had his office  and  where

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Smt.   Tarkeshwari  Sinha, P.W. 34, and others are  said  to have gone to see him.  There is a small lawn in front of the house  and the size of the lawn is approximately 7ft.  x  18 ft. when a visitor comes to the house he goes inside through the  verandah, which is approximately 4 ft. x 10  ft.   This verandah is open and adjoins the office room and the drawing room.   Shri Giri used to sit in the drawing room which  was air-conditioned. Shri N. P. C. Naidu, M.P., said that Shri Yunus Saleem  gave him the pamphlet in the Central Hall on the 11th or 12th  of August,  and he also received the pamphlet by  post.   After reading 258 the pamphlet he felt disturbed and he wanted to meet Shri V. V. Giri and tell him to contradict the pamphlet because Shri V. V. Giri’s supporters were distributing the pamphlet.   He said  :  "So  I went to his house to  meet  him  in  Defence Colony.   There  were the supporters of Mr. V. V.  Giri  and they asked me if I was also his supporter when I told that I had  only gone to see him.  I could not see- him and on  the same  day I wrote a letter to him requesting him  to  please contradict  this otherwise it will not be a fair  election." He  stated  that he, sent the letter by  ordinary  post  and though  be thought that he had a copy of it he did not  pro- duce  it.  In cross-examination he admitted that he had  not told  the  petitioners that he went to Shri V. V.  Giri  and brought  the  pamphlet  to  his  notice  and  asked  him  to dissociate himself from it.  But in the particulars supplied by Shri Sri Rama Reddy it is stated that persons named below went  to the residence of Shri V. V. Giri at C-243,  Defence Colony, New Delhi, on the dates noted against each and  they brought this pamphlet to the notice of Shri V. V. Giri : 1.   Shri Ram Krishan Gupta, M.P.-13-8-69 2.   Smt.  Tarkeshwari Sinha, M.P.-14-8-69 3.   Shri N. P. C. Naidu, M.P.-13-8- 4.   Shri Hari Krishna, M.P.-14-8-69 (We  may mention that Shri Hari Krishna was  not  examined). It will be noticed that in his evidence Shri N. P. C.  Naidu does  not say that he saw Shri V. V. Giri; there is also  no proof  that he ever wrote a letter.  Shri V. V. Giri  denied in  the  witness box having received any  letter  from  Shri Naidu.   Shri  V. V.Giri deposed that he did not  know  Shri Naidu and he did not think that he had ever seen him.   Shri Giri  further stated that he never received any letter  from Shri Naidu requesting him to contradict the contents of  the pamphlet. Smt.   Tarkeshwari  Sinha, M.P., P.W. 43, deposed  that  the members of Parliament seemed to be affected by the  pamphlet and  that  the atmosphere was bad as the character  of  Shri Sanjiva Reddy was being discussed.  She said :               "I went to Mr. Giri’s house on 14th of  August               in  Defence  Colony.  Somebody  came  out.   I               asked  him that I would like to see Mr.  Giri.               He went inside and I was in verandah and  Mr.               Giri  came and I showed this pamphlet  to  him               and  I said to him that the election  that  is               going  on  is for the highest  office  in  the               country and I think that you should  repudiate               this  pamphlet, because this pamphlet  is  not               only untrue, but is mean.  He               259               said : "What can I do about it?" I said to him               that as a contestant for the highest office in               the country it is your obligation to  maintain               the  standard  of the election  campaign.   He

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             again  repeated  :  "What  can  I  do  in  the               matter?"  and  suddenly became very  cold  and               became  quite and when I found that there  was               no response, wished him and came back." She, however, admitted in cross-examination that she had not referred  to  this  pamphlet  in any  of  her  articles  but explained  that  those articles were part of  the  political commentary and there was no mention of the character of  the candidates  or their qualifications  and  disqualifications. She  admitted that she belonged to the group of  which  Shri Nijalingappa  is the President.  She denied  the  suggestion that the entire alleged interview between her and Shri  Giri was a fiction.  She further said that she went alone and  no one  else  was present when she had this  conversation  with Shri Giri.  She could not remember the exact time but is was sometime in the morning. Her  statement  which we have quoted above was put  to  Shri Giri  and  he characterised it as absolutely  incorrect  and said  that she never came.  He added : "I can only say  with respect  that it must be a figment of her  imagination."  He further  said that he was always on good terms with her  and had  no  enmity with anyone,, especially not with  her.   He further  stated that there was no reason why he  should  not have met her in the drawing room and he would certainly have invited her into the drawing room and heard her with respect whatever she wanted to say, but she never came at all. Before  we evaluate this evidence we will have to  refer  to the  evidence of some other persons.  The next  witness  who was  relied  on in this respect is Shri Ram  Krishan  Gupta, M.P.,  P.W. 43.  Shri Ram Krishan Gupta, when asked  whether he  did anything in connection with the  pamphlet,  replied; "After two or three days (of the receipt of the pamphlet) my daughter told me that she had received a telephone from Shri V.  V.  Giri.  She noted his address  and  telephone  number also." He went to see Shri Giri in Defence Colony about  two or three days before the election.  He further said that  he met Shri Giri and the following conversation took place               "Q.  What was the talk between you two ?               A.    He asked me to support him and I refused               that I am committed to Sanjiva Reddy.  I am  a               congress  man and congress had put up  Sanjiva               Reddy.    Therefore,  I  must   support   him.               Moreover,  a party or candidate  which  issues               such posters does not deserve any help.               260               Q.    What was his reply?               A.    He  said nothing; only this  much  that-               what can I do.               Q.    Did you ask him about this pamphlet ?               A.    Yes,  about  this  pamphlet  that   such               posters  should  not be issued and  should  be               contradicted  by his party.  His reply  was  :               what can I do ?" In  cross-examination  he stated that he did not  tell  Shri Abdul  Ghani Dar or Shri Sri Rama Reddy the exact  date  he, went to Shri Giri’s house but only told them that it was two or  three days before the election.  He said that there  was no  guard posted at Shri Giri’s house because Shri Giri  was interested  in  the election and further that two  or  three persons were sitting when he had this conversation with Shri Giri but he did not know them.  It was difficult for him  to give any idea or description of those persons. He further said that he went in the evening and he went from the front side and he could not give any further description of  the house, whether the entrance of the house was in  the

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front  side, or whether it is only a ground floor  house  or whether there is any upper floor on it because he went there casually.  He explained that by evening he meant 7 or 8.  It was put to him that his entire story of going to Shri Giri’s house  was false, and he said : "It is  absolutely  correct. If  you examine my telephone directory, his number is  still written  there by my daughter." The learned counsel for  the respondent read the evidence, which we have extracted above, to Shri V. V. Giri and asked the question : "Is any part  of this statement correct ?" Shri Giri replied : "He never, met me." We may reproduce the rest of the examination "Q. Did you telephone ? A.   I  never  telephoned to him.  I think to  his  daughter also I never spoke on telephone. Q.   Did you meet any visitors in the verandah ? A.   I  never  met anybody in the verandah; it was  hot  and sultry outside at that time and I received every one in  the drawing room." Shri  Harbans Lal Sehgal, Deputy Superintendent  of  Police, R.W.  7, was one of the Security Officers assigned to  guard Shri V. V. Giri.  He had been with him since Shri V. V. Giri was  Vice-President of India in 1967.  He said that  another Security Officer, Shri R. N. Mullick, was also assigned  the same  duty.  Between themselves they took shifts at  No.  C- 243, Defence Colony.  Shifts were normally between 8 a.m. to 2 p.m., 2 p.m. to 8 p.m., and the first man would come  from 9  p.m. till morning.  According to him there was  ;no  time when a Security Officer was 261 not  present.  Shri Giri did not sleep at No. C-243  Defence Colony  but  at C-496, where the Security  Officer  used  to stay.  He stated that he was on duty on August 14, 1969, and he  remembered this because he returned from tour with  Shri V.  V. Giri on August 13, 1969, in the afternoon,  then  his counter-part  Shri Mullick took over the night duty  and  he came  on duty in the morning of the 14th.  He said  that  he took over duty at 8 in the morning.  He further said that  a gunman was always on duty and the gunman used to stand  near the  gate.  He described the procedure when anyone  came  to see  Shri Giri thus : "He shall meet us-one of the  Security Officers  who was present there-and we informed  either  Mr. Krishna Rao or the son of the President, whosoever was  pre- sent  and if they allowed him, we took him to the  President in  the  drawing room where the President was  sitting."  He said that the drawing room doors closable door-opened on the verandah  from, which they took the visitors.   The  further procedure  was that after he had shown the visitor the  door was  closed  as the room was  air-conditioned.   He  further deposed that he knew Smt.  Tarkeshwari Sinha by sight,  that Smt.  Tarkeshwari Sinha never came during his duty hours and further  that  the  President  never  met  anybody  in   the verandah.    When  asked  :  "How  do  you   know   Shrimati Tarkeshwari  Sinha  ?", he replied : "I am in  the  Security Branch  of  the  Police for 12 years and I  know  she  is  a prominent member of the Parliament and then she was a Deputy Minister  in  the Ministry of Finance as I know  some  other members  of Parliament and Ministers which I saw during  the official duties and came in contact otherwise.’ He  asserted that  to his knowledge no one who came to see Shri Giri  was ever  refused entry.  He said that he did not know Shri  Ram Krishan Gupta, M.P., neither did he know Shri N.P.C.  Naidu. In cross-examination he said that he did not keep a visitors book  nor a vigilance book but he used to make a  report  of his  duties to the Superintendent of Police.  He never  gave the names of those persons who came and visited Shri Giri to

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the  Superintendent  of Police.  He was unable to  give  the names  of the persons who visited Shri Giri on 28th July  or 14th  August.   He explained : "I don’t remember as  to  who came  and  on what particular date but I can  give  you  the names whom I saw coming and  meeting the President." He said that he read the evidence of Shri Krishna Rao in the press. We  may mention that the evidence of most of  the  witnesses used to be reported extensively in the press. The  witness denied that his relations with the family  mem- bers  of Shri V. V. Giri were informal and added: "we  never cultivate relations with the family members of the VIP."  It was suggested that it would be too hot for him to sit in the verandah or in the lawn but he replied that it all  depended in one’s training 262 and nature of duties.  In cross-examination he said that  he did  not  know of any case where Shri Krishna  Rao  or  Shri Giri’s son refused to allow any visitors to see Shri Giri. It  is not necessary to give further details of  the  cross- examination but we are of the view that his evidence was not shaken  by  the various questions put to him.  There  is  no reason  why we should not place reliance on the evidence  of this officer. The  evidence  of  Shri Mullick,  Deputy  Superintendent  of Police,  R.W.  45,  is  similar.  He said  that  he  kept  a register of his attendance duty and used to submit  reports. These were in small bound plain paper register and they used to  be  shown to the S.P. Security, Shri Marwaha.   He  said that the book was misplaced when he shifted in the month  of December to the President’s estate.  He added that this book was  kept for his own convenience; at the time of T.A.  bill it  was  used; otherwise it was of no use.  It  was  not  an official record.  He then described the places he went  with Shri  Giri outside Delhi.  He described the visits.  He  was asked  how many persons came to see Shri Giri from the  21st of  July to 29th of July, and he replied, that he would  not be able to tell that exactly, but he added : "Roughly  about forty  people  during  this period." He  further  said  that during  his  duty  hours between 6 and 7 sometimes  4  to  5 people came every day from August 13 to August 16.  He  said that  among those who visited were Shri Krishna Menon,  Shri Bhupesh  Gupta, Shri Amar Singh Sehgal and Smt.  Aruna  Asaf Ali,  and  the persons who visited from 21st  to  29th  July included  Shri  Jagat  Narain,  Shri  Yashpal,  Shri  N.  C. Chatterjee  and  a  few  M.Ps. He said  that  he  could  not recollect  any  more.  He asserted  that  Smt.   Tarkeshwari Sinha never came during his duty hours. The learned counsel has not been able to give any convincing reason why we should disbelieve this officer. Shri P. Krishna Rao, R.W. 1, is the son-in-law of Shri V. V. Giri.   C-243,  Defence Colony, was his house, and  he  said that  Shri V. V. Giri conducted his  campaign  single-handed from  this  house, although members of his  family  assisted him.   He said that Shri Giri went on tour on the 29th  July and completed it on the 13th of August, 1969, but in between he  came  for a few hours on the 10th and again  for  a  few hours  on  the  12th.  He gave the same  version  about  the duties of the Security Officers, and the procedure  followed in  the  house for receiving visitors.  He  said  that  Smt. Tarkeshwari Sinha never came to see Shri Giri from the  20th July  to the 16th August, and she did not come on  the  14th August in the morning.  He further said that Shri Giri never interviewed anybody in the verandah as it was open to the 263 public gaze and where the Security Officer and probably  the

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driver or some other clerk would be siting or standing.   He further  stated that after Shri Giri returned from his  tour on  the  13th  he was continuously with him and  he  was  in attendance  on him on the 13th, 14th and 15th; only  on  the 16th he left in the morning and went to the Parliament House to  watch the voting.  He further deposed that he knew  Shri N. P. C. Naidu and had met him at several places but was not on  visiting terms with him.  He said that he met him  (Shri Naidu) off and on when he went to see members of  Parliament from  Andhra, and that he first saw him three or four  years back  at Madras at the house of late Shri V. Rama  Krishnan. He  denied that Smt.  Tarkeshwari Sinha visited sometime  in the  morning of the 14th, or Shri N.P.C. Naidu came  to  see Shri  Giri at C-243 and could not see Shri Giri.   He  added that  it  was impossible ; Shri Naidu would  not  have  been turned away; he never came. Shri  Jai Murti Prasad, P.W. 41, who was one of  the  gunmen attached  to Shri V. V. Giri said that there were three  men on duty and they did duty in shifts.  He said that he was on duty  on  the 14th from 2 a.m. to 9 a.m. and  after  9  a.m. constable  Ram  Batta  came.   He said  that  he  knew  Smt. Tarkeshwari Sinha.  She did not come to meet Shri Giri while he was on duty. Constable Ram Batta, R.W. 59, stated that he was on duty  on the  14th August from 9 a.m. to 6 p.m. He  corroborated  Jai Murti Prasad that he took over duty at 9 a.m. on August 14. On   this  evidence  we  cannot  accept  the  case  of   the petitioners  that the pamphlet was brought to the notice  of Shri  V.  V. Giri by Shri R. K. Gupta or  Smt.   Tarkeshwari Sinha or Shri N. P. C. Naidu. The  evidence  of  Shri V. V. Giri is  corroborated  by  the Security Officers.  Besides, we find it difficult to believe that Smt.  Tarkeshwari Sinha would have been treated in such a  crude  and inhospitable manner.  There is  evidence  that visitors  were  always  offered coffee  but  no  coffee  was offered to Smt.  Tarkeshwari Sinha by Shri V. V. Giri.   The story told by Shri Ram Krishan Gupta does not appeal to  us. Why  should  Shri Giri telephone Shri  Gupta?   No  previous acquaintance between him and Shri Giri has been established. If  it  was  Shri Giri’s election technique  we  would  have expected evidence to be produced that he telephoned a number of  electors  from  Delhi.   The  learned  counsel  for  the petitioners  said that the witness was an  important  person and  Shri  Giri might have been told at Chandigarh  that  he should   contact  the  witness.   But  we  cannot  rely   on conjectures. In  order to prove connivance on the part of Shri Giri,  the learned counsel also relied on a copy of a letter which Shri Abdul 264 Ghani Dar is supposed to have sent to the respondent.   Shri Dar  deposed  that  he wrote a letter to Shri  Giri  and  he produced a copy of it in Court-Ext.  P-67.  Shri Dar did not address  the  letter  himself  but  he  told  his   Personal Assistant  to  put the address of Shri Giri on  it  and  the letter  was  posted  by  his P.A.  His  P.A.  has  not  been produced.   Shri  Dar  further said  that  he  enclosed  one printed pamphlet in English with the letter.  A copy of this was  said  to have been forwarded to the Prime  Minister  of India, New Delhi, and Prof.  Humayun Kabir, who is now dead. There is no proof of this.  Shri Giri was shown the copy  of Ext.   P-67 and he said that this letter was never  received by  him.   In cross-examination it was suggested  that  the, letter formed part of the correspondence which was destroyed when Shri V. V. Giri shifted to Rashtrapati Bhavan.  We  are

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of the view that it has not been proved that the letter  was sent by Shri Abdul Ghani Dar. The  learned counsel then relied on circumstantial  evidence to  prove that Shri V. V. Giri knew of the  distribution  of the pamphlet and connived at it.  The learned counsel  urged that according to Shri V. V. Giri he conducted the  election campaign   singlehanded   and  left  the  entire   work   of approaching  M.P.s  to the supporters, and in  his  evidence also  tried  to  show that he was not  associated  with  the supporters  at  all.  He urged that  a  necessary  inference which  flows  from  these facts is  that  the  electors  who actually  supported  Shri Giri must have  been  in  constant touch  with  him.   He said that this is  the  only  logical conclusion.   We  are unable to accede to  this  contention. Before Shri V. V. Giri left for his tour the Congress  Party was  against  his candidature.  By the time Shri  Giri  came back to Delhi on the 13th August, much had already been said and done, and the pamphlet had been printed and distributed. There  is no evidence that he was contacted by any of  these alleged  supporters  while  he was  on  tour.   The  persons belonging to the Congress party, now headed by Shri Jagjivan Ram,  were themselves vitally interested in the election  of Shri V. V. Giri as it had become a burning issue between the two  Congress parties.  On this evidence we cannot draw  any inference that the supporters must have contacted Shri Giri. The  learned  counsel  then said that  some  newspapers  had carried  news about the pamphlet, but there is  no  evidence that any newspaper printed the whole pamphlet.  The pamphlet was referred to in the Hindustan Times, Evening News,  dated August 14, 1969, which summarised the letter written by Shri Kanwar Lal Gupta to the Election Commission as follows :               "A  Sangh  MP  Mr.  Kanwar  Lal  Gupta,  today               addressed a letter to the Election  Commission               protesting   against   the   alleged   corrupt               practices  by the Prime Minister, Mrs.  Indira               Gandhi, and her Cabinet colleagues in the               265               Presidential poll.  He has. charged them  with               pressurising M.Ps. in favour of Mr. Giri.   He               has  also objected to a  pamphlet circulated               among the M.Ps. in which certain attacks  have               been made on Mr. Reddy." This news item could escape anybody and, therefore, there is no  reason  to  disbelieve Shri Giri that he  did  not  come across  this news item.  We must, therefore,, hold  that  it has  not  been proved that there was any connivance  on  the part   of   Shri  Giri  to  the  printing,   publishing   or distribution of the pamphlet. We  have already said, and we may repeat, that there  is  no evidence  whatsoever that there was any intimate  connection between Shri V. V. Giri and the alleged distributors.   What they were doing in this connection they were doing on  their own and Shri Giri cannot be held responsible for their deeds unless, of course, it is established that the result of  the election had been materially affected by the distribution of the pamphlet.  This question we shall now consider. It  is  well-settled  that the burden of  proving  that  the result  of the election has been materially affected  is  on the   petitioners.  (see  Vashist  Narain  Sharma   v.   Dev Chandra(1);  Mahadeo  v. Babu Udai Pratap  Singh(2);  Paokai Haokip v. Rishang(3); and G. K. Samal v. R. N. Rao(4).   The learned  counsel, relying on Surendra Nath Khosla  v.  Dalip Singh(5),  urged that this Court should draw a  presumption, as  was  done  in the case of a rejection  of  a  nomination paper,  that the result of the election has been  materially

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affected, from the nature of the pamphlet and the manner  of its  distribution.   He further stressed the fact  that  the petitioners  were not in a position to compel  witnesses  to disclose their change of view and say for whom they voted. A similar argument was advanced before this Court in  Samant N.  Balakrishna  v. George Fernandez(6).   But  the  learned Chief Justice rejected it thus :               "In   our   opinion  the  matter   cannot   be               considered     on    possibility.      Vashist               Narain’s(1)  case  insists on proof.   If  the               margin of votes were small something might  be               made   of   the  points   mentioned   by   Mr.               Jethamalani.  But the margin is large and  the               number of votes earned               (1)   [1955] 1 S.C.R. 509.               (2)   A.I.R. 1966 S. C. 824.               (3)   Civil Appeal No. 683 of 1968 decided  on               August 12, 1968.               (4)   Civil Appeal No. 1540 of 1969 decided on               January 20, 1970.               (5)   [1957] S.C.R. 179.               (6)   A.I.R. 1969 S.C. 1201, 1225.               266               by the remaining candidates also  sufficiently               huge.   There is no reason, therefore,  for  a               reasonable  judicial guess.  The law  requires               proof.   How far that proof should go or  what               it  should  contain  is not  provided  by  the               legislature.    In  Vashist’s  case   and   in               Inayatullah   v.  Diwanchand  Mahajan(1)   the               provision was held to prescribe an  impossible               burden.   The  law  has  however  remained  as               before.   We are bound by the ruling  of  this               Court  and  must say that the burden  has  not               been   successfully  discharged.   We   cannot               overlook the rulings, of this Court and follow               the English rulings cited to us."               The  learned  counsel invited us  to  overrule               this  decision.  It is too late in the day  to               do  this.  This view was taken very  early  by               various  Election Tribunals.  It was  observed               in  Rai Bahadur Surendra Narain Sinha v.  Babu               Amulyadhone Roy(2) :               "In the direct form in which provision is made               for this matter in paragraph 7 (1 ) (c) of the               Order  there is no scope for  interference  on               the   ground  that  in  the  opinion  of   the               Commissioners the result of the election might               have been affected by the irregularity.   This               view  has been taken in respect of  a  similar               provision  to  that  laid  down  in  paragraph               7(1)(c)  in three cases reported in  Hammond’s               Election  Cases  (1936  edition),  namely,  in               Bulandshahr  District (East) 1921 (page  219),               Lahore  City  (M) 1921 (page 469),  and  Patna               West (N.M.R.) 1927 page 535). Then the Commissioner goes on to say that "it may be that in some  circumstances the provision in this rule  may  operate harshly,  where  a tribunal may feel that the result  of  an election   may  well  have  been  affected  by   a   serious irregularity, but it may be impossible for the petitioner to establish  this  positively; but we have  to  interpret  and follow the rule as it stands." Parliament,  knowing  of the views held by  various  Commis- sioners and Judges, have failed to intervene, and it is  not

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for us to legislate. Let  us  then  see  if the petitioners  have  been  able  to affirmatively  prove  that the result of  the  election  was materially  affected  by the distribution of  the  pamphlet. They sought to prove this by showing what the impact of  the pamphlet  on various electors and their reaction  was.   The reactions, as is to be expected, (1)  15 E.L.R. 219. (2)  Doaba’s  Indian  Election  Cases  (1935-1950)  Vol  II; p.368-378.                             267 varied greatly in its intensity.  The witnesses describe  it variously:  It  was in bad taste, very  derogatory;  it  was dirty,, scandalous, extremely bad, pernicious, contemptible, character  assassination, horrible, vulgar  and  scurrilous, false and malicious, foul and filthy, unpleasant and  foul." Shri  Madhu Limaye, M.P., thought that it would  affect  the chances of his candidate, Shri Giri.  Shri Kanwar Lal Gupta, M.P.,  was in doubt what to do and what not to do.  Shri  K. S. Chavda, M.P., said that he changed his mind.  Shri N.P.C. Naidu, M.P., concluded that members would not vote for  Shri Reddy.   Shri Shiv Narain, M.P., frankly stated that  though he thought that ’such a man should not be the President, yet Shri Rama Reddy convinced him that the pamphlet was  totally false  and he abided by the decision of the  Congress  Party Board.  Smt.  Jayabehn Shah, M.P., felt perplexed right upto the  date she cast the vote but failed to positively  assert that  she  voted  for some other candidate  because  of  the pamphlet.  Shri N. N. Patel, M.P., said that he changed  his attitude  after reading the pamphlet and adhered to it  till the  last  moment.  Shri Mohan Lal Gautam,  M.P.,  does  not disclose how he voted.  Neither does Shri S. Supakar,  M.P., disclose how he voted, although he felt very sad on  reading the  pamphlet.  Shri C. D. Pande, M.P., said  that  although his  faith  in  the uprightness of Shri  Sanjiva  Reddy  was shaken,  it did not affect his vote.  Shri P. N. Deb,  M.P., felt very much prejudiced against Shri Reddy but did not say that  he voted against him because of this  pamphlet.   Shri Hukam  Chand Kachwai, M.P., a member of the Jan Sangh,  said that  at that time he thought the allegations foul and  they did influence his mind, but failed to say who he voted  for. Shri Suraj Bhan, M.P., deposed that the pamphlet, so far  as he  was  concerned, affected the directions which  had  been given  by his leaders.  Smt.  Pushpabahn Mehta,  M.P.,  does not  say that the pamphlet affected her vote.  Shri  Morarji Desai, M.P., described the impact on    his mind thus               "This  would affect an average  voter  against               Shri S. Reddy adversely, because the  contents               are  so  shocking and in this  country  people               believe  many things without going into  them,               especially  wrong  things  are  believed  more               easily." Shri Shri Chand Goyal, M.P., admitted that "it is not   that exercised my franchise guided by it." The impact on Shri Ram Krishan Gupta was totally different than intended.  He  said that  after  reading  the  pamphlet  "I  became  a  stronger supporter of Shri Sanjiva Reddy because I thought such  like posters  are  not good and should not be  issued."  Shri  R. Muniswamiah,  M.L.A., said that the contents prejudiced  his mind, and he could not risk 268 not to believe them, but did not disclose how he voted.  He, however,  admitted  that he is a loyal Congressman  and  has adhered  scrupulously to the directives of his party.   Shri S.  Nijalingappa  said  that the  pamphlet  would  adversely

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affect  Shri  Reddy’s  chances  of  success.   Shri  M.   S. Gurupadaswamy, M.P., did not say that the pamphlet  affected him  although  "the motivation was to defame  the  candidate Shri  Sanjiva  Reddy  and jeopardise his  chances  of  being elected  as President." Shri D. S. Raju, M.P., said that  he was  shocked by the pamphlet but he had always been a  loyal Congressman and scrupulously abided by the directives of the party.   Shri Patil Putappa, M.P., felt whether he would  be doing the right thing by voting for Shri Sanjiva Reddy after reading  the pamphlet but admitted that he had  always  been disciplined   and  loyal  Congressman  and  loyal   to   the directives  of  the party.  Shri Sher Khan,  M.P.,  did  not believe  in the truth of the allegations in the pamphlet  as he  had known Shri Sanjiva Reddy personally, but  felt  that those  persons who did not know Shri Sanjiva Reddy might  be affected by the pamphlet.  Chaudhary A. Mohammad, M.P., said that  the pamphlet did affect his mind but he did  not  view his,  decision in that light, being a loyal soldier  of  the Congress.  Shri C. M. Kedaria deposed that after reading the pamphlet  he could not risk voting for such a candidate  for such  a  high  post.  Whether he  actually  voted  for  Shri Sanjiva Reddy or not is anybody’s guess because neither side asked him that question.  Shri N. Sri Rama Reddy, M.P.,  one of  the  petitioners, had known Shri Sanjiva Reddy  for  the last  35  years,  and was his counting  agent.   It  is  not suggested that his vote was affected by the pamphlet.   Shri Abdul  Ghani Dar, M.P., a petitioner, stated that after  the pamphlet  was read out to him he thought "that  country  was sinking and extreme danger has been posed to the democracy." It  is, however, quite clear from his evidence that  he  did not believe that Shri Sanjiva Reddy was a debauch.  We  have not  referred  to  the evidence of electors  from  U.P.  who deposed to meeting Shri Dinesh Singh at Lucknow because,  as will  presently  appear, much reliance cannot be  placed  on what they say. It  will be evident from the above analysis of the  evidence that apart from two witnesses it is not certain whether  the others  were so affected by the pamphlet that  they  changed their mind.  Then there are witnesses who say that there was no  effect  on their voting, either because they  knew  Shri Sanjiva  Reddy  or did not believe the allegations  or  that they  were  loyal and disciplined members  of  the  Congress Party.  Five witnesses were strongly prejudiced but they  do not say that this prejudice finally affected their voting or not.  Two remained sad or disgusted but failed 269 to disclose whether it had any affect on them.  One  thought that  the party directive was affected.  Apparently  he  was not   personally  affected.   One  witness  became  a   firm supporter  of  Shri Sanjiva Reddy because of  the  pamphlet. Some witnesses opined that others would get affected,  which evidence cannot assist the petitioners in any manner. On   this  evidence  it  is  difficult  to  hold  that   the petitioners   have   proved   that   the   publication   and distribution of the, pamphlet materially affected the result of  the election.  It only leads to the conclusion  that  it probably  did have some effect but the vast majority of  the electors  were able to throw off the effect of the  pamphlet ’and vote according to their own personal wish or  according to the mandate of their party. There is evidence that there was a great deal of talk  about the pamphlet.  There was time before voting for the electors to  exchange  views  about the pamphlet  and  ascertain  the truth.   Shri Sanjiva Reddy had been the Speaker of the  Lok Sabha and was a well-known and leading political personality

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There  were  various other issues exercising  the  minds  of electors, particularly belonging to the Congress party.   If in spite of all these factors some were unduly influenced in their  thinking, it was for them to come and say so.   There was  no landslide against Shri Sanjiva Reddy.   Two  hundred and  sixty  eight members of Parliament gave him  the  first preference.  Ninety two members of Parliament, who had given first  preference  to  Shri  C.  D.  Deshmukh,  gave  second preference to Shri Sanjiva Reddy.  It is, however, true that if 26 more members of Parliament had voted for Shri  Sanjiva Reddy,  instead  of Shri Giri, the, former would  have  been elected, Therefore,  on the evidence before us, it is  impossible  to sustain the contention of the petitioners.  In the result we hold  that  it was not been proved that the  result  of  the election  was  materially affected by  the  publication  and distribution of the pamphlet. The learned counsel for the petitioners urged another  point in  order to impeach the validity of the election.   It  was said  that  Shri Dinesh Singh, then  Minister  for  External Affairs,  visited Lucknow somewhere round about the 10th  of August  and exercised undue influence on various members  of U.P.  Legislature.   Shri Dinesh Singh  denied  having  ever visited Lucknow round about that time.  He said that he  did not go to Lucknow till after the polling date.  A number  of witnesses have been produced on behalf of the petitioners to establish the visit of Shri Dinesh Singh to Lucknow. 270 Shri  Bansi Dhar Pandey, M.L.A., U.P., P.W. 18, deposed  re- garding  Shri  Giri’s visit to Lucknow.  He said  that  Shri Dinesh  Singh came to Uttar Pradesh for canvassing for  Shri Giri,  met  him  and  had a talk.  He  deposed  :  "He  held a.meeting of the leaders in B Block.  I was also there.   He told  us  that we should support Mr. Giri." He added  :  "He said  we should support Mr. Giri and thus we should  support Prime Minister’s view; she belongs to our State."  According to  him Shri Dinesh Singh then said : "If we do not  support the  candidature  of  Mr.  Giri, we  will  not  get  Central patronage  and  we would not get the support  of  the  Prime Minister  in the general elections and we would not get  the party  tickets in the elections." He deposed to the  receipt of the pamphlet by post.  This examination took place before us  on the 25th February, 1970, and the learned counsel  for the  respondent  at that stage did not put any  question  in cross-examination  to suggest that as a matter of fact  Shri Dinesh  Singh  never visited Lucknow.  It appears  that  the persons in charge of preparing Shri Giri’s case had by  then not  come  in contact with Shri Dinesh Singh and  could  not ascertain  whether  he  had  as a matter  of  fact  gone  to Lucknow. The  next  witness, Shri Ram Singh, M.L.A., U.P.,  P.W.  19, gave evidence in the same strain.  He said that four or five days  after  Shri  Giri’s visit Shri Dinesh  Singh  came  to Lucknow.   He also stated that Shri Dinesh Singh  said  that "if you vote to Mr. Reddy, you will be in difficulty because Central  support  will  not  be  given  to  you,  the  party candidature  will  not  be given to you,  patronage  of  the Central leaders will not be given to you." This evidence was also  given on the 25th February, and no question was  asked in  cross-examination to suggest that Shri Dinesh Singh  did not visit Lucknow during this period. Shri  Jagdish  Prasad,  M.L.A., U.P., P.W.,  20,  also  gave evidence  to the effect.  Shri Basant Lall  Sharma,  M.L.A., P.W.  22, also said that Shri Dinesh Singh visited eight  or nine days before the polling date.

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Shri  Rajendra  Prapat Singh, M.L.A. P.W. 21,  deposed  that Shri Dinesh Singh came to Lucknow seven or eight days before the  polling  and he met him and others in a  block  of  the Councillors’ Residence.  According to him Shri Dinesh  Singh told  him that "it is the desire of the Prime Minister  that don’t  vote  for the other candidate." The  witness  further deposed that Shri Dinesh Singh told him that he had come  to know  from  Shri Giri that "I was not prepared to  vote  for Shri   Giri."  According  to  the  witness  by  "the   other candidate" Shri Dinesh Singh meant Shri Reddy, the  Congress candidate.   Shri  Dinesh Singh is further alleged  to  have told the witness that the "Prime Minister is a 271 great  leader of the party and her wishes also  fell  within the  discipline".  Shri Dinesh Singh is further  alleged  to have  pointed to the witness that the witness came from  Rai Bareli  which  was Prime Minister’s constituency  and  great help  was  received  from  her  in  election.   The  witness understood  this to mean that if he voted against the  Prime Minister  then the help available to him from her would  not be available. Shri Ram Pyare Panika, M.L.A., P.W. 37, who was examined  on March  2,  1970, gave similar evidence as the  earlier  wit- nesses  from Uttar Pradesh.  He said that Shri Dinesh  Singh visited Lucknow about 9 or 10 days before the polling but he could  not  give the exact date.  He-said that  Shri  Dinesh spent  two  or three days in Lucknow but he  could  not  say where he stayed.  To the question : "How do you know that he was there for two or three days?", he replied : "Because  he met  me once and some friends of mine told me that he  also met them two or three days after that." He was asked :  "Now look  here  I  put it to you that  Mr.  Dinesh  Singh  never visited Lucknow between the 1st and the 16th August and that what  you have said is untrue".  He answered :  "He  visited Lucknow and he met me." Other questions were also asked. This is the first occasion that questions were asked with  a view  to  establish that Shri Dinesh did not  visit  Lucknow between the 1st and the 16th., The  next witness, Shri Abdul Salim Shah, M.L.A.,  P.W.  38, also deposed that Shri Dinesh Singh came about a week before the  polling  day  and he saw him  (Shri  Dinesh  Singh)  at Darulshafa where Shri Dinesh Singh addressed the people.  He further   told  that  Shri  Dinesh  Singh  talked   to   him individually.  In cross-examination he said that the did not know where Shri Dinesh Singh was living or where he  stayed. He met him only once at Darulshafa about noon.  He could not remember  the  names of persons who were present  when  Shri Dinesh Singh had conversation with him but ultimately  said: "Dr.   Sia Ram.  Th.  Mehram Singh, Mumtaz Khan,  Abid  Ali, Jogeshwar  Dayal and many others." To the question : "I  put it  to you that between the first of August and the 16th  of August Dinesh Singh never went to Lucknow and you could not have  met him," he replied : "No.  1 met him and he came  to Lucknow." The  next witness on this point is Shri Mumtaz Mohd.   Khan, M.L.A., U.P., P.W. 44, He also gave similar evidence and  he said  that Shri Dinesh Singh, came to Lucknow about  a  week before the Presidential election and met him.  He  described the  talk  which he had with Shri Dinesh Singh.   In  cross- examination  he  said  that Shri Abdul  Ghani  Dar  came  to Lucknow after he had 272 filed  the petition and stayed in 24B Block. in  Darulshafa, very  near 23 B Block in Darulshafa where the witnesses  was staying.  When pressed to remember the names of persons  who

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were present when Shri Dinesh Singh addressed the,  meeting, he  ventured the names of Shri Kamlapati Tripathi  and  Shri Jagdish  Gandhi,  and addled that perhaps Shri  Abdul  Salim Shah was also there. As  we  said before, Shri Dinesh Singh, R.W.  6,  said  that between  the beginning of August or rather after his  return from  abroad on 18th July, and the 22nd of August, 1969,  he never went to Lucknow and he was in Delhi right upto the 2nd August.   He said that his Secretary keeps the diary of  his engagements  and consults him before making any  appointment unless he tells the Secretary ahead that someone is going to see  him.  He said that whenever he goes out, whether on  an official or a private tour, a tour programme is issued,  and it  is indicated in the tour programme whether the visit  is official or private and it has the list of people to whom it is  circulated.  He further stated that whenever he goes  to Lucknow  he stays with the Governor in the Raj Bhavan or  in the  State  Guest  House and he usually goes  by  train  and sometimes by plane.  The  diary kept by the Private Secretary was  produced  and shown  to the counsel for the petitioners, and  the  witness was cross-examined in detail about the diary and the way  it is maintained.  To the question : "I put it to you that  you were  in Lucknow on Sunday the 10th August",  he  answered:" No.  it  would not be correct because I did not  go  out  of Delhi." This  date was apparently chosen by the learned counsel  be- ,cause in the diary the page of August 10, 1969, was  blank. It  was further suggested that the witness perhaps  went  by car  towards the evening of 9th and reached Lucknow  by  the morning and then proceeded to Partapgarh for three hours and then  back to Lucknow by 12 O’clock, and after spending  six or seven hours in Lucknow he took the car and came to Delhi. To  this suggestion he said that the distance between  Delhi and Lucknow involved a very long journey.  He added :  "This is  a hypothetical question in respect of time and  I  would have  to  be more sure about it." The witness  further  said that he thought that he attended a tea party at Mysore House given by the then Governor of Mysore on August 10.  We will presently show that this version of his attending the  party on August 10 is corroborated by other evidence. The  respondent also produced a number of M.L.As. from  U.P. to  prove  that  Shri Dinesh Singh  did  not  visit  Lucknow between  the  1st  and the 16th.  They  are  Shri  Syed  Ali Zaheer,  M.L.A., R.W. 9, Shri Genda Singh, M.L.A., R.W.  12, and Shri                             273 H.   N. Bahuguna, R.W. 28, who was the General Secretary  of the  U.P.  Congress Committee in 1969.  Shri  Bahuguna  said that  Shri Dinesh did not visit Lucknow before the  poll  in August.   He  said  that he knew it for  certain  that  Shri Dinesh  Singh did not visit Lucknow between the 1st and  the 17th  August because had he visited Lucknow he was  sure  to hear  from Shri Dinesh Singh.  The witness added : "He is  a kind friend who keeps me informed of his tour programme even here.   I always receive his tour programme and,  therefore, if  he had come to Lucknow I would have surely got his  tour programme  through dak or if it was a hurried programme  a telephonic call that Mr. Dinesh Singh will be in town and in view  of my plastered leg, if he were to come to Lucknow  he would  have certainly visited me as he did before."  It  was put  to  him  : "If I say that Mr. Dinesh  Singh  did  visit Lucknow  between the 1st of August and the 14th  of  August, will it be correct ?", he answered : "Totally incorrect." Shri Abid Ali, M.L.A., R.W. 33, deposed that he had not  met

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Shri  Dinesh  Singh personally.  He was asked:  "Mr.   Abdul Salim  Shah has deposed before this Court as a  witness  and stated  that Mr. Dinesh Singh came to Lucknow in August  ’69 and  you  were  present alongwith him and  others  when  Mr. Dinesh Singh and he had a conversation.  Is it correct ?" He answered : "No it is quite wrong." He stuck to this position in cross-examination. Shri  Rao  Rafay  Khan,  M.L.A., R.W.  37,  said  in  cross- examination that he could not say whether Shri Dinesh  Singh went  to Lucknow or not and he said that he had not yet  met Shri  Dinesh Singh.  Further he did not hear of Shri  Dinesh Singh going to Lucknow in the month of August. Shri  Kamlapati Tripathi, R.W. 61, who was the President  of the U.P. Congress Committee at the relevant time also stated that  he  was in Lucknow between the 1st of August  and  the 16th  of  August and that during this period, as far  as  he could  recollect, Shri Dinesh Singh did not  visit  Lucknow. He  further  said : "Usually when he comes  to  Lucknow,  he gives  me  a ring that he is coming to  Lucknow,  and  after reaching  Lucknow he informs me of his arrival  there."  The evidence of Shri Mumtaz Mohd.  Khan, R.W. 44, whom he  knew, regarding Shri Dinesh Singh’s alleged visit to Lucknow  was- put  to him where he had said that Shri  Kamlapati  Tripathi was  one of the persons present in the meeting; the  witness replied  :  "No  meeting was held.  Neither  I  was  present anywhere.  This is a false statement." Shri  I.  K. Gujral, R.W. 40, attended Shri G.  S.  Pathak’s party on Sunday the 10th August and produced a letter  dated August 9, 1969, signed by Shri G. S. Pathak and addressed to Shri  I.  K. Gujral, inviting him to tea at  Mysore  Bhavan. Shri 274 Gujaral  said  that  Shri Dinesh  Singh  was  present  there alongwith  some others, including Shri Om Mehta, Shri K.  C. Pant,  Dr. Ram Subhag Singh, Shri M. P. Bhargava and  a  few others, and also Shri Kanwar Lal Gupta, M.P. Shri  G. N. Mathur, R.W. 14, who has been in the  government service  for the last 30 years and was Private Secretary  to Shri  Dinesh Singh said that he :fixed up  appointments  and tour  programmes and looked after coordination work  in  the Minister’s  office.  He had been Private Secretary  to  Shri Dinesh Singh since 1962.  He produced the diary of 1969  and said that it had been kept by him and the name of the  diary was  "Rampart Index Diary by Thakar & Co."  This  particular diary  was supplied by the Ministry of Commerce when he  was there- and when Shri Dinesh Singh was Minister of  Commerce. He also produced the diaries of 1966, 1967 and 1968.  It  is not  necessary. to go into his evidence in detail but it  is quite  clear from his evidence that he keeps the diaries  in regular  manner and it may be that some.time he may rub  out or  score  out  an  engagement  which  has  been  cancelled, otherwise most of the engagements are put in the diary.   He then  gave  the procedure for making a tour  programme.   He admitted that if some appointment is made by the Minister at his  house and the Personal Assistant who attends the  house does  not inform him about it, it would not he found in  the diary.  He was asked : "If the Minister goes out on tour out of Delhi, is there ’any entry in your diary ?" He replied  : "Sometimes  I do make, but I keep a tour register and it  is used  for  tour  purposes."  He was  asked  :  "If  he  (the Minister) decides to go on tour, let us say, suddenly in the evening, will a tour programme be issued?" He replied :  "If it is possible.  We Will contact the District Magistrate  of the place he is visiting to inform him that the Minister  is arriving  at that place, by telephone.  If the  Minister  is

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likely  to  stay  there for a day,  we  issue  a  programme, although it is afterwards." He was asked : "If he is  coming back immediately, no programme will be issued ?" He  replied :  "No.  But it is my responsibility to inform the  District Magistrate that he is coming." The  witness produced a file containing the tour  programmes between  the 22nd of February, 1969, and the 22nd  December, 1969.  He said that if the Minister changes his route  while he is on the way, then if he gets information he would issue a  revised programme.  He pointed out that according to  the schedule date of return the Minister was supposed to  return on  Saturday, the 19th July, but he returned in fact on  the 18th July, a day earlier, and he issued a revised  programme on  the 17th of July.  After looking up the tour  programmes file he said that Shri Dinesh Singh went to Lucknow only  on the 22nd August and he then 275 went  by plane and returned by plane and the tour  programme was issued. In cross-examination the learned counsel for the  petitioner tried  to show that the diary was not  absolutely  complete. In  reply to the learned counsel the witness said : "So  far as the prior engagements are concerned, if an engagement has not been fulfilled, either it would be, rubbed off or scored out,  but  whatever engagements appear in  the  diary,  they would  indicate  they  have  been  fulfilled."  He   further admitted  that  he  did  not  always  score  out  the  entry specially in the case of the national days of the Embassies, because  he  had to inform the Chief of  Protocol  that  the Minister  would not be able to attend the reception  and  he has to explain the Minister’s inability to attend to the Am- bassador  concerned.   He  added  :  "Therefore,  to  remind myself,  I  do  not cancel such type  of  entries  from  the diary." The witness further admitted that the tour programme consisted   of  loose  sheets  tagged  together   as   these programmes were cyclostyled and they are not entered in  any bound register, but he said that when T.A. bill is  prepared it  would  indicate the visits of the Minister.   He  denied that any second diary was maintained at the residence  under the control of the Personal Assistant.  He further said that even  if  the Minister wants to go and meet someone  out  of Delhi  in his personal capacity, as a matter of security  if the security man is informed then he will accompany him  and even  if  he goes to a picture the security  man  would  sit outside the picture house. We are satisfied that nothing has been brought out in cross- examination which would destroy the evidence of the  Private Secretary  that  most  of the engagements  of  the  Minister appear  in  the  diary  and whenever  he  goes  out  a  tour programme is framed and issued. Shri  Ram  Nath  Singh, constable, R.W.  36,  who  had  been attached to Shri Dinesh Singh for security purposes as guard for  the last four years was posted at Shri  Dinesh  Singh’s residence.   He said that there was no limit to the time  he served  as  a  guard at a time but usually it  was  for  six hours.  He described the procedure by which the revolver and the cartridges are transferred to the man who comes on duty. if the Minister goes out of Delhi for more than 24 hours the revolver  and the cartridges are deposited in  the  security line.  When the Minister is away the gunman still attend the house.   He produced the Roznamcha which was maintained  in- the year 1969 and he said that he would make an entry in the Roznamcha  as to whether Shri Dinesh Singh was in  Delhi  or not.  He showed the entries from the first of August to  the 16th.  He pointed out various entries.  The first entry  was

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dated 11th August.  This entry would show that 276 the Minister spent the night of the 10th in Delhi.   Various such entries were pointed out.  He was asked to see if there was  anything  to show that the Minister was  not  in  Delhi during  this  time,  and he answered : "There  is  no  entry showing  that he was away from Delhi." The  counsel  brought out the entries on the 22nd of August to show that an  entry was  made  when Shri Dinesh Singh went to Lucknow.   In  the entry it is recorded inter alia that "at 7 a.m. the Minister is  in the house".  The entry at 3 O’ clock shows that  "the Minister  started  for Palam Airport; he would go  by  plane from  there to Lucknow.  Signed Ravi Bhan Singh." He  stated that  the gunman on duty went with the Minister  upto  Palam airport  and stayed there till the plane took off  and  that was why he would know that he was going to Lucknow by plane. Nothing  useful was brought out in cross-examination and  we are  satisfied  that the Roznamcha was kept in  the  regular course  of  duty and the entries in it support  Shri  Dinesh Singh’s  version that he did not go to Lucknow on  the  10th August,  or between the 1st August and the 16th August.   If there  had  been  any  truth in the  version  given  by  the petitioners  it  would not have been difficult for  them  to produce  evidence  either from the railway  records  or  the records of the Indian Airlines to show that reservation  was made  on  behalf of Shri Dinesh Singh and  he  travelled  to Lucknow  and back.  Further in those days the local  papers, if not the national papers, would at least have carried some news  items about the visit of Shri Dinesh Singh to  Lucknow as  it was a visit alleged to be for election purposes,  and according to the petitioners he had met a number of  persons openly.  Further the evidence of the petitioners’  witnesses does  not fix the date of the visit.  It was the blank  page in the diary which led to the suggestions about that day  in cross-examination. We  are satisfied from the evidence which we have  extracted above  that Shri Dinesh Singh did not visit Lucknow on  the 10th  of August or any other day thereabout and the case  of the  petitioners that Shri Dinesh Singh visited  Lucknow  is not true. We  have  already  mentioned  that it  was  alleged  in  the petition  that Shri V. V. Giri repeatedly stated at  various places  that "a man of character and integrity  should  have been selected" and he, in well-guarded language, was stating that Shri Reddy was not a man of character.  Shri V. V. Giri denied  these  allegations and stated  that  throughout  his statements  he adhered to the stand as a candidate  for  the office  of  the  President.   The  petitioners  produced   8 witnesses  to substantiate this charge. it is common  ground that  Shri  V. V. Giri visited Lucknow during  his  election tour Lucknow was his first halt-and addressed a meeting at 277 Darulshafa.   There is dispute as to what Shri Giri said  at the meeting and as to whether he met M.L.As. individually or in  groups.   The  eight  witnesses  mentioned  are  :  Shri Bansidhar  Pandey,  P.W. 18, Shri Ram Singh, P.W.  19,  Shri Jagdish  Pershad,  P.W. 20, Shri Rajendra Prasad,  P.W.  21, Shri Basant Lal Sharma, P.W. 22, Shri Ram Pyare Panike, P.W. 37,  and  Shri Abdul Salim Shah, P.W. 38.   These  witnesses also deposed to Shri Dinesh Singh’s visit to Lucknow and  we have  disbelieved their version.  In these circumstances  we must view their evidence with extreme care and caution. It  will be noticed that the witnesses have given  different versions as to what Shri V. V. Giri said. Shri  Bansidhar Pandey, P.W. 18, Shri Jagdish Pershad,  P.W.

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20, and Shri Basant Lal Sharma, P.W. 22, said that Shri Giri told them that they should vote for him in the  Presidential election.  P.W. 19, Shri Ram Singh’s version was : "At  that time  he  asked  us that I am the candidate  of  the,  Prime Minister  and I must be voted for the Presidential  Election and  she  has  supported him and therefore I  must  get  the votes."  Shri Ram Pyare Panike, P.W. 37, struck a  different note.   According to him Shri V. V. Giri said : "He told  us that  we should vote for him because he told us that he  was also  the  Governor of other States and he  was  also  Vice- President.  So he told us that a man lie him should be voted and  we  should  vote in favour of  Mr.  Giri."  He  further deposed that after the meeting he and three or four  M.L.As. met Shri Giri separately and he told them the same thing and in addition said : "If you want to progress India a man like me should be voted." P.W. 38, Shri Abdul Salim Shah’s version is that Shri V.  V. Giri  said  that he had been the Vice President and  also  a Governor  on  behalf of the Congress and "I have  spent  the whole  of my life in the Congress in the companionship  with Mahatama Gandhi.  I deserve it more that I should be elected as  the  President of India." He added that  at  a  personal meeting  along  with  Shri Mumtaz Khan Shri  Giri  asked  us whether we should vote for him. The  last witness on this point, Shri Mumtaz Khan, P.W.  44, gave the most detailed version.  According to him Shri  Giri "a appealed to the members of the Assembly to vote for  him. He  said  that he has held very high offices.   He  was  the Vice-President of India.  He was also the Governor of  U.P.; he has been doing social service all throughout his life and he was a very fit candidate for the Presidentship of  India. Besides  this, he said that the other candidates are not  as good  as he is.  Besides, he also said this thing  that  the Congress had done a great blun- 278 der  in nominating Mr. Sanjiva Reddy as its  candidate.   He said  all these things." At a personal meeting with him  and two  or three friends, according to this witness, Shri  Giri "appealed  to  us that you vote for me and besides  this  he said that Sanjiva Reddy is not a suitable candidate.   There are  so  many spots on his character and the  Congress  High Command  has done a great, blunder in nominating him as  its candidate.   Besides this, he said you see my  services  and all these things." It  will be noticed that Shri Mumtaz Khan, P.W. 44,  is  the only  witness  who stated that reference was  made  to  Shri Sanjiva  Reddy,  and Shri Ram Singh, P.W. 19,  is  the  only witness who mentioned that a reference was made to the Prime Minister. Shri  Daphatry,  the learned counsel  for,  the  respondent, put .all the above statements to Shri V. V. Giri.  Shri Giri categorically  denied  meeting M.L.As.  individually  or  in small  groups.  He said that all his addresses were  on  the basis of the statement that he issued on July 13, 1969.   He stated  that at no stage he said that he was sup ,ported  by the  Prime  Minister  either at Lucknow  or  elsewhere.   He further  deposed  that he never referred to  to  the  "other candidates"  and  whatever  he  stated  was  about  his  own qualifications.   He denied having referred to Shri  Sanjiva Reddy  and  also denied having ever said that  Shri  Sanjiva Reddy  was not a suitable candidate, and further,  according to  Shri  Giri, it was absolutely false that  he  said  that "there are so many spots ,on his character and the  Congress High  Command has done a great blunder in nominating him  as its candidate." He admitted that he said about himself,  his

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qualifications, but there also he was very guarded. On  the respondent’s side Shri Shivanand  Nautiyal,  M.L.A., R.W. 26, supported Shri Giri’s version of the meeting.  Shri Nautiyal  admitted that he was an active supporter  of  Shri Giri.   According  to  him, Shri Giri said that  he  was  an independent candidate and told everything about his work and nothing  more:  in particular he did not, in the  course  of what he said, refer to Shri Sanjiva Reddy, nor did Shri Giri say   that  he  was  Shrimati  Indira  Gandhi’s   candidate. According to the witness, after the meeting Shri Giri  left, accompanied by 17 or 18 people, and that no talk took  place between them and Shri Giri.  In cross-examination he  stated that  Shri Giri talked about his work and his visit to  many countries   and  he  explained  everything  but   did   -not discuss,political issues with them. Another witness, Shri Ashraf Ali Khan, M.L.A., R.W. 27, gave an  account  of  Shri Giri’s talk to them.  He  said  :  "He talked  about  his  candidature  that  he  was  seeking  his election as an independent candidate, because he  considered that the post 279 of the President was of such a stature that a non-party  man should  seek election, and that he had always stood for  the common  man and worked for him throughout his  labour  move- ment,  and  he  was  seeking the vote  of  all  persons  who believed  in  the ideology of the common  man."  He  further added  that  not a single word was said about  Shri  Sanjiva Reddy  or  that  he was a candidate put up  by  Smt.   Indra Gandhi.   The  witness admitted that he was elected  on  the Congress ticket; he only went to the meeting because it  was held in the hostel compound.  He said that other congressmen also attended the meeting because it was held in the hostel. The  statement (if Shri V. V. Giri, dated July 13, 1969,  is exhibited  as  P.  66A.  Our attention was  invited  by  the learned  counsel for the petitioners to the sentence in  the statement  : "I would only say that the  candidate  selected for the highest office should possess character,  integrity, patriotism, experience, record of service and sacrifice.   I feel  in all modesty I could claim to have these  attributes in  some  measure."  We are unable to  appreciate  how  this sentence makes it probable that Shri Giri would mention Shri Sanjiva  Reddy  and  say something about  his  character  at Lucknow.  Another passage in the statement which was pointed out  was : "The highest office of the land must be one  that is above party politics.  While the majority party has every right  to choose its nominee, in a democracy care should  be taken  to see that the candidate so selected enjoys, as  far as  possible,  the confidence of other groups  also.   I  am deeply pained by the recent events that have tended to lower the  dignity and moral authority of this august office."  We are again unable to see how this makes it more probable that Shri  Giri would attack the character of Shri Sanjiva  Reddy at Lucknow. Further,  on  August 1, 1969, it was  not  definitely  known whether Smt.  Indira Gandhi would support the candidature of Shri Giri.  There is no evidence of Shri Girl having met the Prime Minister except on July 20, 1969.  Shri Giri said that he  had  not spoken either to the Prime Minister or  to  any Minister  before he announced his candidature.   He  further stated that he saw the Prime Minister on July 20, 1969, when she  came  to see him at a ceremonial function when  he  was leaving  the  Rashtrapati  Bhavan and she had  come  to  say "good-bye" and he said " good-bye" to her.  He categorically stated  that they did not meet each other any  time  between the 20th July and the 16th August, 1969.

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We  are of the ’view that Shri Giri’s version is  preferable to  the version given by the petitioners in so far as  there is any conflict, and therefore we hold that the  allegations made  in  the  Petition  in  this  respect  have  not   been substantiated. 280 We  may next deal with the allegations in paragraph  13  (c) (iii) of the petition to the effect that Shri Fakhruddin Ali Ahmed  and Shri Yunus Saleem threatened Muslim  voters  that Shri Sanjiva Reddy was in fact a candidate of the Jan  Sangh Party  and  that if he was elected the fate  of  the  Muslim community in India will be in danger and in constant  threat of  extinction.  An instance was given of  the  conversation which  took place between Shri Yunus Saleem and  Shri  Abdul Ghani  Dar,  petitioner.   The  following  particulars  were supplied regarding the allegations in this sub-para Date    Name of person threatened    Place where threatened Shri Fakhruddin Ali Ahmed 11.8.69    Sh. Abdul Ghani Dar, M.P. At his residence on                                          Telephone 11.8.69 Sh.  Sher Khan, M.P.  At his residence by Telephone 11.8.69 Chaudhary A. Mohammad At his residence on telephone                     M.P. Shri Yunus Saleem 11.8.69   Sh. Abdul Ghani Dar, M.P. In the Central Hall of                                              Parliament 11.8.69 Sh. Sher Khan M.P.In the  Central Hall of Parli-                                               ament 11.8.69   Chaudhary A. Mohammad In the Central Hall of Parl-                 M.P.                                iament The  particulars  stated  above were stated to  be  true  to information  received by Shri Abdul Ghani Dar from  Shri  A. Mohammad, M.P., and Shri Sher Khan, M.P., and were  believed to  be  true to his knowledge in so far as they  related  to himself. Shri  Sher Khan, M.P., P.W. 51, deposed that perhaps on  the morning  of August 11, 1969, Shri Fakhruddin Ali Ahmed  rang him  up and told him on the telephone that all  Muslims  to- gether will vote for Shri Giri and that he should side  with them.   The  witness  replied  that  "I  am  a  man  of  the Organisation  and as an old Congressman I cannot  move  away from  the  official candidate and vote  for  another."  Shri Fakhruddin Ali Ahmed then told the witness :               "He  told  me if I want to go  along  alone  I               could  do  so  but  they  all  together   have               unanimously decided to support Mr.. Giri.  You               may  do  whatever you like alone,  but  I  may               remind  you of one thing that with the  return               of Mr. Sanjiva Reddy on election would be pos-               ing a danger for the Muslims and also for  the               Muslim   Community,  there  is  a   compromise               between  him and the Jan Sangh.  In future  it               is  possible that he may obliterate the  names               of the Muslims." 281 The  witness  in reply said that he could  not  agree.   The witness,  further stated that nothing more was said  on  the telephone and Shri Fakhruddin Ali Ahmed said that they shall meet in the Central Hall.  The witness further deposed  that Shri  Fakhruddin Ali Ahmed met the witness at noon  time  in the  Central Hall on the same-,day, and is alleged  to  have said,  inter  alia,  that "as the  entire  ruling  party  is supporting Mr. Giri, you will not be put in future either on the   Delegations,  or  on  the  Committees  or   in   other Nominations."

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Then  the witness deposed that Shri Yunus Saleem gave him  a ring on the same day and repeated almost the same thing and, further  Shri Yunus Saleem met him in the Central  Hall  and said  :  "If I am differing from him, I might vote  for  Mr. Reddy.   In  that  case  that will not be  good  for  me  in future."  In cross-examination he said that before  he  gave his evidence in Court he did not have any conversation  with Shri Abdul Ghani Dar or anyone on his behalf about what  the witness was going to depose to in this Court.  He,  however, said  later that he had informed Shri Abdul Ghani Dar  about the conversation which the witness had with Shri  Fakhruddin Ali  Ahmed on the telephone, and similarly he informed  Shri Abdul  Ghani Dar about the entire conversation which he  had with Shri Yunus Saleem.  He denied the suggestion that  Shri Fakhruddin  Ali  Ahmed had no conversation with him  in  the Central  Hall  and he also denied the suggestion  that  Shri Yunus  Saleem had no conversation with him on the  telephone or  in the Central Hall.  He further said that he  had  told Shri Mishra, who is the leader of the Congress Party in  the Rajya  Sabha, about what Shri Fakhruddin Ali Ahmed had  told him. It will be noticed that in the particulars Shri Sher Khan is not  stated  to have met Shri Fakhruddin Ali  Ahmed  in  the Central Hall and it is not stated that Shri Yunus Saleem had telephoned to him. Chaudhary  A.  Mohammad, M.P., P.W. 52,  deposed  that  Shri Fakhruddin  Ali Ahmed telephoned him on the 10th or 11th  of August  and told him : "It has been decided to  support  Mr. Giri in the election and also that in this the Muslims stand to  gain and if Mr. Sanjiva Reddy wins the interest  of  the Muslim  community  will be in danger." The  witness  plainly told Shri Fakhruddin Ali Ahmed that he was a soldier of  the organisation and he could not go against the decision of the Congress.   He  then added that he was with Shri  Sher  Khan when Shri Fakhruddin Ali Ahmed addressed Shri Sher Khan  and was  saying that "they had decided to vote for Mr. Giri  and therefore  we should obey this final decision and also  that this  was in the interest of the Muslims." According to  the witness Shri Fakhruddin 282 Ali  Ahmed  was threatening Shri Sher Khan  by  saying:  "We distribute tickets and that he will not be given any  ticket and  that  he was retiring." We may mention that  Shri  Sher Khan  was due to retire from Rajya Sabha as Member on  April 2, 1970. Regarding Shri Yunus Saleem the witness deposed that he  met Shri  Yunus  Saleem  at a breakfast  and  talked  about  the election  and Shri Yunus Saleem said the same thing  but  he did  not talk to him on the telephone about the  election.He further   stated that he had met Shri Yunus Saleem a  number of  times in the Rajya Sabha lobby and in the  Central  Hall and  they  talked about election and the reasons  that  Shri Yunus  Saleem gave for supporting the respondent  were  that "if  Mr.  Sanjiva Reddy is elected the  government  will  be upturned and that Mr. Sanjiva Reddy was a very bad man.  And there  were some pamphlets .which he had distributed a  copy of  which  was given to me also." He denied  the  suggestion that there was no talk between him, and Shri Yunus Saleem of the nature deposed to by him.  He admitted that he  belonged to  the  Congress party of which Shri  Nijalingappa  is  the President. In  the  particulars  it is not  stated  that  Chaudhary  A. Mohammad overheard the conversation between Shri Sher  Khan, M.P.,  and  Shri Fakhruddin Ali Ahmed.  Further,  Shri  Sher Khan does not say that Shri Fakhruddin Ali Ahmed  threatened

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and  said  "We distribute tickets and that he  will  not  be given any ticket and that he was also retiring." The last witness on this point is Shri Abdul Ghani Dar, M.P. He deposed that Shri Fakhruddin Ali Ahmed approached him  on the telephone on the 11th August in the evening and he  told him  that "he was told by Mr. Yunus Saleem that in spite  of having  been told by him (Shri Yunus Saleem) I  had  decided not  to side with Mr. Giri and Shrimati Indira Gandhi."  The witness further deposed that Shri Fakhruddin Ali Ahmed  said that  "it meant that in spite of my being a Muslim I was  an enemy  of  the Muslims." He further said that he  told  Shri Fakhruddin Ali Ahmed that this was wrong.  According to  the witness, he addressed a letter to Shri Fakhruddin Ali  Ahmed and  also to all the Muslim Members of Parliament  on  this. The  letter  is Ext.  P 68.  He further  deposed  that  Shri Yunus  Saleem gave the pamphlets to him, took him aside  and told  him four things; the two relevant to this point  being (1) that Shri Sanjiva.  Reddy was in collusion with the  Jan Sangh,  and  (2)  that if Sanjiva Reddy wins it  will  be  a victory for Jan Sangh and the Muslims will stand eliminated. According to the witness he replied that "this is also wrong that  by the return of Mr. Sanjiva Reddy there will  be  any ,danger for the Muslims." 283 The letter, Ext.  P-68, was alleged to have been written  by Shri Abdul Ghani Dar on August 13, 1969, and the  following, passage may be extracted :               "Brothers  it is said that Muslim  League  and               Syed Baderuja are openly with communists.   It               is  also  said that Mr. F. A.  Ahmed  and  Mr.               Yunus   Saleem  are  canvassing  with   Muslim               members  to defy the mandate of  the  congress               president  for congress Shri S. Sanjiva  Reddy               because  Jan  Sangh is on his  side......  Now               what right the communists or my brother  Ahmed               and Saleem have to canvass Muslims in the name               of Islam and Muslims of India.  It is very sad               that  they  are  playing  a  very  dangerously               game." (emphasiz supplied.) This letter does not support Shri Abdul Ghani Dar that  Shri Fakhruddin  Ali Ahmed and Shri Yunus Saleem  canvassed  with him  because  the sentence begins : "It is also  said".   In other  words he seems to have heard from some  source,  that Shri  Fakhruddin  Ali  Ahmed  and  Shri  Yunus  Saleem  were canvassing  the Muslim Members.  If his evidence is true  we would  have expected him to have stated in the  letter  that Shri  Fakhruddin  Ali  Ahmed  and  Shri  Yunus  Saleem   had approached  him.   Further  what is attributed  to  them  is something milder though, objectionable. We have already mentioned that it was brought out during the cross-examination  that  there  was  conflict  between   the evidence  that  he  had given regarding  Shri  Yunus  Saleem taking  him aside and his statement in sub-para 13 (b)  (iv) of  the  petition  in  which it is stated  :  "As  a  single instance Shri Yunus Saleem approached Shri Abdul Ghani  Dar, Member of the Parliament, one of the petitioners herein  and talked  to him in this behalf as stated earlier.   This  was said in presence of a number of Members of Parliament." Shri Abdul Ghani Dar said: "I have even now not denied that where I  was  taken no other Members were  present."  This  answer seemed to us surprising. Further  it seems to us that Shri Abdul Ghani Dar  had  been trying  to  collect  and collate  evidence  right  from  the beginning and his statement does not inspire confidence.  He went  to  Lucknow and his visit apparently resulted  in  the

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story  of  the visit of Shri Dinesh Singh to  Lucknow.   The tape  record  of his conversation with  Shri  Jagat  Narain, which  took  place  after the election,  also  lends  strong support  to  this view.  It is true that Shri  Jagat  Narain tried  to contact Shri Abdul Ghani Dar in order to  dissuade him  from filing the election petition.  Shri  Jagat  Narain had  first  spoken  to  Shri Abdul  Ghani  Dar’s  wife  and, according  to  Shri Abdul Ghani Dar, Shri Jagat  Narain  had created an im- 284 pression on his wife that there would be peril to Shri Abdul Ghani Dar in case he insisted on filing the petition.   Shri Dar’s  wife did not give evidence.  The tape record  of  the conversation  between  Shri Abdul Ghani Dar and  Shri  Jagat Narain clearly indicates that whereas Shri Jagat Narain  was trying his best to make out that in his conversion with Shri Abdul  Ghani’s  wife he had not held out any threat  to  the life of Shri Abdul Ghani Dar, the latter was trying his best to get an admission to that effect from Shri Jagat Narain on to the tape. Shri  Fakhruddin  Ali Ahmed denied that he  telephoned  Shri Sher  Khan,  M.P.,  as  alleged by Shri  Sher  Khan  in  his evidence.   He further denied that he had  any  conversation with  him  in  the Central Hall on the 11th  of  August,  as alleged  by  him.   He further  denied  that  he  telephoned Chaudhary  A. Mohammad regarding the election or  any  other matter.   He maintained that he had no talk with him in  his office  or  in the Central Hall of Parliament.   He  further said that he knew Chaudhary A. Mohammad but he did not visit him   and  they  did  not  meet  very  often.   He   further characterised Shri Abdul Ghani Dar’s evidence as  absolutely incorrect that he approached him on the telephone.  He added that  he  had never approached him  regarding  the  election matters.   He said that he did not receive any  letter  from Shri Abdul Ghani Dar.  In cross-examination he stuck to  the statement  he  had given in  examination-in-chief  regarding Shri  Sher Khan, Chaudhary A. Mohammad and Shri Abdul  Ghani Dar,  and non-receipt of the letter, Ext.  P 68.  He  denied that  during’  the course of the Presidential  election  any propaganda   along  the  lines  suggested  by  these   three witnesses was carried on by him among the Muslim Members  of Parliament. Here  again there is direct conflict between the  witnesses. We  have  already held that the particulars  given  by  Shri Abdul  Ghani  Dar  were given on pure  guess  work  and  the verification  he. appended to the particulars was not  true. Even on this aspect of the case the evidence given in  Court is different from what is stated in the particulars. The learned-counsel for the respondent read the statement of Shri  Sher Khan to Shri Yunus Saleem and asked  him  whether the  deposition of Shri Sher Khan was correct regarding  the telephonic call or about the meeting.  He replied : "No,  it is  not correct.   I  had  a  talk  with  him  about   the Presidential  election  but when he informed me that  he  is committed  to Shri Nijalingappa and that he was working  for Shri  S.  Reddy, the question of any further  talk  did  not arise."  The witness further stated that no  communal  issue was  involved in the election and be did not  approach  Shri Sher Khan on communal considera- 285 tions.   The learned counsel then read out the statement  of Chaudhary A. Mohammad to Shri Yunus Saleem and he replied  : "I  am  sorry this is absolutely incorrect.  It  is  correct that  he came to me at breakfast more than once but no  talk regarding  Presidential election took place between him  and

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me."  He said that Chaudhary A. Mohammad was supporting  the Congress  Party of which Shri Nijalingappa is the  President and he was working for Shri Sanjiva Reddy. Similarly the learned counsel read out the relevant evidence of  Shri  Abdul  Ghani  Dar and to the  question  :  "Is  it correct?,  Shri Yunus Saleem answered : "Except this that  I had  a talk with Mr. Abdul Ghani Dar about the  Presidential election in the Central Hall every part of it is incorrect." Shri Yunus Saleem described the talk thus :               "I   wanted  to  know  his  views  about   the               Presidential election because he claimed to be               an  independent member of the  Parliament  who               did  not  belong to any political  party.   We               discussed  several points and he said that  he               had  decided  to support Mr. S. Reddy  and  he               also  mentioned that the late  Prof.   Humayun               Kabir  was also of the same view that  Mr.  S.               Reddy  should be supported.  Therefore I  said               that he may consider that whether it would  be               advisable  in  the interest of  democracy  and               socialism to support Mr. S. Reddy or Mr. Giri.               He  said that he would think over it and  also               discuss  with  Prof.  Humayun  Kabir.   Except               this  no  talk between myself  and  Mr.  Abdul               Ghani  Dar took place about  the  Presidential               election." In this connection reference may be made to the statement of some  other Muslim Members of Parliament.  Syed Ahmed  Agha, M.P.,  R.W.  10,  said that Shri Sher  Khan  was  collecting signatures  for Shri Sanjiva Reddy.  He further stated  that no  meeting of the Muslim Members of Parliament was held  at about   that  time  in  connection  with  the   Presidential election.   To  the  question : "Did  any  Minister  of  the Central  Government contact him and told him what he  should do  about  voting,  otherwise the  Muslims  would  be  wiped out,?", he replied : "Certainly not." Shri  P.  M. Syed, R.W. 13, said that he did  not  hear  any communal  cry  raised by Shri Fakhruddin Ali  Ahmed  in  the context  of the election nor was any communal cry raised  by Shri Yunus Saleem during those days. It seems to us highly improbable that Shri FakhruddinAli Ahmed  and  Shri  Yunus Saleem would  approach  these  three witnesses  and canvass support for Shri Giri on  the  ground that the 286 fate  of the Muslim community would be in danger.  It  seems to  be  very  unlikely that if  Chaudhary  A.  Mohammad  was present  alongwith Shri Sher Khan in the Central Hall,  Shri Fakhruddin Ali Ahmed would not talk directly to both of them because  according  to  them  they  both  had  already  been contacted over the telephone.  If Shri Fakhruddin Ali  Ahmed wanted  to  supplement  the  talk  he  already  had  on  the telephone it would have been natural for him to have  talked to  both of them.  Moreover, if it was true some mention  of it would have been made in the particulars.  It seems to  us that the evidence on this point is too unsatisfactory to  be believed without corroboration from independent sources. in   view  of  these  considerations’  we  hold   that   the allegations in sub-para 1 3 (c) (iii) have not been proved. Only a few minor points now remain.  No evidence was led  in connection with the allegation made in sub-para (i) of  para 13 of the petition.  It was alleged, to state briefly,  that the  supporters  of  the returned  candidate,  Smt.   Indira Gandhi  and other Ministers, had misused their position  for furthering  the  prospects  of  the  returned  candidate  by

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telephoning large number of electors from their  ministerial telephones.    No  witness  was  produced  to  prove   these allegations.  Telephone records and bills were summoned  and produced  in  Court but no effort was made  to  connect  the telephone  records with the Ministers and the electors,  who are  alleged to have been contacted.  There is  no  evidence regarding  the electors who are alleged to have been  called by  the above named Ministers at their  official  residences and  offices.   No evidence was led on the  allegation  that Shri  V. V. Giri sounded one of the Ministers  to  influence any  particular electors who were found not amenable to  his influence  or persuasions.  We must hold  these  allegations not proved. Regarding  the allegations in para 13 (c) (v), para  13  (c) (vi) and para 13 (c) (vii), we did not allow any evidence to be taken on the points because we were of the view that even if  they  were accepted, the allegations did not  amount  to undue influence.  It seems to us that the threats  indicated in  those parts were too fanciful and remote and they  could not  constitute any attempt to interfere with the  electoral rights of the electors. It was stated in para 13 (c) (xiii) that "on August 6,  1969 the  U.P.  Congress  Committee  President,  Shri   Kamlapati Tripathi  and  Shri  C. B. Gupta,  Chief  Minister,  jointly addressed  ’a meeting of the Congress M.L.As.  and  appealed for solid backing for Shri Reddy.  But when undue  influence of  the  scare reached them they changed  their  stand.   On August  13, 1969, Shri Kamlapati Tripathi also  pleaded  for freedom to vote.  The same                             287 was the fate of the other State leaders." According to  Shri Kamlapati Tripathi, R.W. 61, he had issued an appeal, Ex.  P 74,  on August 12, 1969, to all Congress legislators of  the U.P.  State Legislative Assembly, asking them to cast  their vote  in favour of Shri Sanjiva Reddy.  He gave  reasons  in Ext.  P 74 why this should be done.  But then he changed his stand.   He gave the following explanation in answer to  the question  : "After issuing this appeal did you  change  your position in relation to the Presidential election ?"               "Well,  I may say that I made a  choice.   The               letters  to  the congress  president  of  that               time,  Shri Nijalingappa, written by  Jagjivan               Ram  and Fakhruddin Ali Ahmed, were  published               in  the  papers on the 12th of  August,  if  I               remember  the  date correctly,  in  which  the               demand  to  sanction the freedom to  vote  was               published.   I  also made, a  request  to  the               congress  president to allow this  freedom  of               vote   in  view  of  the   serious   situation               developing  within the organisation  regarding               this  question,  and  I  requested  that   by,               sanctioning that freedom of vote, perhaps,  it               would  be possible to maintain the  unity  and               avoid disruption in the organization."               He further added               "It  was, perhaps, on the 14th  evening.   And               then  I saw very clearly that on this issue  a               split   was  going  to  take  place   in   the               organization.   So, when the organization  was               going  to be divided, as I saw it,  I  thought               that I should make a choice of my own self  as               to  where  I should belong, and  I  made  that               choice." It  seems to us that no connection has been  proved  between the  change in his stand and the alleged scare mentioned  in

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sub-para 13 (c) (xiii). In  conclusion we hold that the pamphlet was sent  by  post. Further, the pamphlet was distributed in the Central Hall of Parliament.   This  distribution  itself  constitutes  undue influence  within s. 18(1) (a) of the Act.  It is,  however, not proved that this pamphlet was distributed by workers  of the  respondent,  or  with the connivance  of  the  returned candidate.  We further hold that it has not been proved that the  result of the election has been materially affected  by the   distribution  of  the  pamphlet.   The  rest  of   the allegations either do not amount to undue influence or  were not proved. Issue  No.  7 in E.P. No. 1/1969, Issue No. 9  in  E.P.  No. 4/1969 and Issue No. 11 in E.P. No. 5/1969 303Sup. CI(P)/71 288 What relief, if any, are the petitioners entailed to? The petitioners are not entitled to any relief as no  ground has  been  made  out  for  declaring  the  election  of  the respondent to be void. In  our order dated May 11, 1970, we had directed  that  the parties  will  bear their own costs.  We passed  this  order regarding costs because we were satisfied that the  pamphlet had  been sent by post and distributed in the  Central  Hall and this justified the petitioners in bringing the two  main petitioners.   Most of the evidence which was led  in  Court dealt with the question of the distribution of the pamphlet. Further,  as’  pointed  out in the  judgment,  a  number  of witnesses have not told the whole truth.  As a matter of act we  were  distressed to see truth being  sacrificed  at  the altar of political advantage by these witnesses. Bhargava, J.-These four election petitions all challenge the election  of  the President of India for which  polling  was held  on the 16th August, 1969, and the result of which  was declared  on  the  20th August, 1969.   The  petitioners  in Election Petitions Nos.  1 and 3 of 1969 were candidates  at the   election.   The  nomination  papers  of   both   these petitioners  were  rejected by the Returning  Officer.   The petitioners in the other two Election Petitions Nos. 4 and 5 of  1969  were electors for the election of  the  President. The  successful  candidate,  Shri V. V. Giri,  is  the  sole respondent  in Election Petitions Nos. 1, 4 and 5  of  1969, while, in Election Petition No. 3 of 1969, he was  impleaded as  respondent  No. 2 and the Union of  India,  through  the Election Commission, as respondent No. 1. In this  judgment, the  reference  to  respondent will  be  to  the  successful candidate, Shri V. V. Giri. The election was occasioned by the demise of the then Presi- dent of India on the 3rd May, 1969.  The Election Commission issued  a notification under section 4 of  the  Presidential and   Vice-Presidential  Election  Act  No.  XXXI  of   1952 (hereinafter  referred to as "the Act") appointing the  24th July,  1969, as the last date for filing nomination  papers. The  date  for scrutiny of the nomination  papers  was  26th July, 1969, and the last date for with-                             289 drawal of nomination was the 29 th July 1969.  The polling was fixed for the 16th August, 1969. 24 nomination papers were filed by the last date for  filing nominations.  The scrutiny took place on 26th July, 1969, in which  the Returning Officer rejected 9  nomination  papers, including  the  nomination  papers  of  the  petitioners  in Election  Petitions Nos.  1 and 3 of 1969.  He accepted  the nomination  papers  of  15  candidates.   None  of  the   15 candidates  withdrew his nomination by 29th July, 1969,  the

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last date  for withdrawal.  At the pool  on  16th  August, 1969,   consequently,  there  were  these   15   candidates. Counting  of votes took place up to the 20th  August,  1969, when the result was declared and the respondent, who was one of the candidates whose nomination had been accepted by  the Returning  Officer,  was declared elected.   These  election petitions have been filed by various persons, as  enumerated above, challenging this election of the respondent. Various  grounds have been taken in the pleadings  in  these election  petitions  for  challenging the  validity  of  the election of the respondent which, briefly described, are :-               (1)   That the nomination papers of candidates               Shri  Shiv Kirpal Singh, Shri Charan Lal  Sahu               and Shri Yogi Raj were wrongly rejected by the               Returning Officer;               (2)   That   the  nomination  papers  of   the               respondent   were  wrongly  accepted  by   the               Returning Officer;               (3)   That  the  nomination  papers  of   Shri               Rajbhoj Pandurang Nathuji, Shri Santosh  Singh               Kachhwaha,  Shri  Babu Lal Mag  and  Shri  Ram               Dulare  Tripathi were wrongly accepted by  the               Returning Officer-,               (4)   That the offence of undue influence  had               been   committed  at  the  election   by   the               respondent   and  his  supporters   with               the connivance of the respondent;               (5)   That the result of the election had been               materially  affected  by  the  commission   of               offence  of undue influence by  persons  other               than the respondent without his connivance,;               290               (6)   That  the  offence of,  bribery  at  the               election had been committed by the  respondent               and his supporters With his connivance;                (7)  That the result of the election had been               materially  affected by the commission of  the               offence  of bribery by persons other than  the               respondent;               (8)   That Part III and section 21 of the  Act               are  ultra-vires the Constitution as  well  as               Rules 4 and 6 (3) (e) of the Presidential  and               Vice-Presidential   Elections   Rules,    1952               (hereinafter  referred  to  as  "the   Rules")               promulgated  under section 21 of the  Act  are               ultra vires the Constitution and the Act;               (9)   That   the   elected  Members   of   the               Legislative    Assemblies   of    the    Union               Territories  were entitled to be  included  in               the Electoral College for the election of  the               President and their wrongful non-inclusion had               materially   affected   the  result   of   the               election,  as well as it had violated  Article               14 of the Constitution; and               (10)  That  the petitioners were  entitled  to               dispute  the  election even on  grounds  other               than those mentioned in section 18 of the Act,               viz.,  that the respondent or any person  with               his  connivance  had  printed,  published  and               distributed  a pamphlet containing  scurrilous               attacks   against  the  personal   and   moral               character  of one of the candidates,  Shri  N.               Sanjiva Reddy, which were false.               The  detailed facts relating to these  grounds               will  be  more  conveniently  mentioned  when.

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             dealing with the various issues framed on  the               basis   of  these  pleadings  and,  to   avoid               repetition,  they are not being  mentioned  at               this stage.  On these pleadings, the following               issues  were  framed in the  various  election               petitions :-               Election Petition No. 1 of 1969.               1.  Whether  the  nomination  papers  of   the               petitioner, Shri Charan Lal Sahu and Shri Yogi               Raj were wrongly               291               rejected  as  alleged in paragraphs  5(a)  and               (b), 16 and 7 of the, petition ?               2.Whether  the  nomination papers  of  the               respondent were wrongly accepted as alleged in               paragraphs’ 5 (c) and 8 of the petition ?               3.Whether  the. nomination papers of  Shri               Rajbhoj Pandurang Nathuji and Pandit Babu  Lal               Mag were wrongly accepted as alleged in paras.               5 (d) and 9 of the petition?               4.(a)  Whether the elected members of  the               Legislative    Assemblies   of    the    Union               Territories were entitle to be included in the               Electoral  College  for the  election  of  the               President ?               (b)Whether the non-inclusion of the members               of  the  Legislative Assemblies of  the  Union               Territories  in the Electoral College  amounts               to  noncompliance with the provisions  of  the               Constitution  ? If so, whether the  result  of               the  election has been materially affected  by               such non-compliance ?               (c)Whether the alleged non-compliance  with               the   provisions  of  the   Constitution   has               violated Article 14 of the Constitution ?               5.Whether  section 21 of the Act is  ultra               vires the Constitution of India ?               6.Whether  Rules  4 and 6 (3) (e)  of  the               Rules are ultra vires the Constitution and the               rule-making power of the Central Government  ?               7.  What  reliefs, if any, is  the  petitioner               entitled to ?               Election Petition No. 3 of 1969.               1.    Whether  the  nomination paper  of  Shri               Phul   the  Singh  petitioner,   was   wrongly               rejected ?               2.  What  relief, if any,  is  the  petitioner               entitled to ?                Election Petition No. 4 of 1969               1.Whether  the nomination papers of Shri  Shiv               Kirpal  Singh, Shri Charan Lal Sahu  and  Shri               Yogi Raj were wrongly rejected, ’as alleged in               paragraphs 8(a) and 9 (a). (b) and (c) of  the               petition ?               292               2.Whether  the nomination papers  of  Shri               Rajbhoj Pandurang Nathuji, Pandit Babu Lal Mag               and  Dr.  Ram  Dulare  Tripathi  were  wrongly               accepted as alleged in paragraphs 8 (b) and 10               (a), (b) and (c) of the petition ?               3.Whether the nomination papers of the respon-               dent  were  wrongly  accepted  as  alleged  in               paragraphs 8 (c) and 11 of the petition ?               4.(a)   Whether   all  or   any   of   the               allegations made in paragraphs 8(e) and  13(a)

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             to  (m) of the petition constitute in  law  an               offence of undue influence under section 1 8 (               1 ) (a) of the Act ?               (b)Whether  the  said allegations  made  in               paragraph 8(e) and 13 (a) to (m) are true  and               proved ?               (c)In the event of these allegations  being               prove and constituting undue influence-               (i)   whether   the  returned  candidate   has               committed the offence of undue influence ?               (ii)whether the, offence of undue  influence               was committed by his workers, and if so,  with               his connivance ?               (iii)whether  the offence of  undue  influence               was   committed   by   others   without    his               connivance,  and  if  so,  whether  that   has               materially affected the result of the election               ?               5.    Whether  Part III and section 21 of  the               Act are ultra vires the Constitution of  India               ?               6.Whether  Rules 4 and 6 (3 ) (e)  of  the               Rules are ultra vires the Constitution and the               rule-making power of the Central Government ?               7.(a)  Whether the elected members of  the               Legislative    Assemblies   of    the    Union               Territories  were entitled to be  included  in               the Electoral College for the election of  the               President ?               (b)If so, whether the non-inclusion of  the               members of the Legislative Assemblies of  the               Union  Territories  in the  Electoral  College               amounts  to noncompliance with the  provisions               of the Constitution ? If so, whether the               293               result  of the, election has  been  materially               affected by such non-compliance ?               (c)Whether the alleged non-compliance  with               the   provisions  of  the   Constitution   has               violated Article 14 of the Constitution ?               8.(a) Whether the petitioners are entitled               to  dispute the election of the respondent  on               grounds other than those mentioned in  section               18 of the Act ?               (b)If issue No. 8 (a) is decided in  favour               of the petitioners-               (i)   whether  the  respondent or  any  person               with  his  connivance  printed  published  and               distributed  the pamphlet at Annexure  A-3  to               the petition ?               (ii)whether  the  pamphlet at  Annexure  A-3               contained   any  false  statement   of   facts               relating to the personal character and conduct               of  Shri N. Sanjiva Reddy, a candidate at  the               election  and  other  persons  named  in   the               pamphlet ?               (iii)whether the persons found responsible for               publishing    the   pamphlet   believed    the               statements made therein as true or had  reason               to believe them to be true ?               (iv)whether  the pamphlet was  published  with               the object of prejudicing the prospects of the               election of Shri Sanjiva Reddy and  furthering               the   prospects   of  the  election   of   the               respondent ?

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             (v)   whether  the election of the  respondent               is liable to be declared void on this ground ?               9.    What   reliefs,   if   any,   are    the               petitioners entitled to ?               Election Petition No. 5 of 1969               1.Whether  the nomination papers of Shri  Shiv               Kirpal  Singh, Shri Charan Lal Sahu  and  Shri               Yogi  Raj were wrongly rejected as alleged  in               paragraphs 8(a) and 9 of the petition ?               2.Whether  the  nomination papers  of  the               respondent were wrongly accepted as alleged in               paragraphs 8 (b) and 10 of the petition ?               3.Whether  the nomination papers  of  Shri               Rajbhoj Pandurang Nathuji, Shri Santosh  Singh               Kachhwaha,  Pandit  Babu Lal Mag and  Dr.  Ram               Dulare  Tripathi  were  wrongly  accepted   as               alleged  in  paragraphs  8(c) and  11  of  the               petition?               294               4, (a) Whether all or- any of the allegations               made  in  paragraphs  8  (e)  and  13  of  the               petition constitute in law an offence of undue               influence under section 8(1)(a-) of the Act ?               (b)Whether   the   said   allegations   ill               paragraphs 8(e) and 13 are true and proved’?               (c)In the event of these allegations  being               proved and constituting undue influence-               (i)   whether   the  returned  candidate   has               committed the offence of undue influence ?               (ii)whether  the offence of undue  influence               was committed by his workers, and if so,  with               his connivance ?               (iii)whether the- offence of undue  influence               was   committed   by   others   without    his               connivance,  and  if  so,  whether  that   has               materially affected the result of the election               ?               5.    Whether  Part III and section 21 of  the               Act are ultra vires the Constitution of  India               ?               6.Whether  Rules  4 and 6(3)  (e)  of  the               Rules are ultra vires the Constitution and the               rule-making power of the Central Government ?               7.(a)  Whether the elected members of  the               Legislative    Assemblies   of    the    Union               Territories  were entitled to be  included  in               the Electoral College for the election of  the               President?               (b)If so, whether the non-inclusion of  the               members  of the Legislative Assemblies of  the               Union  Territories  in the  Electoral  College               amounts to non-compliance with the  provisions               of  the  Constitution  ? If  so,  whether  the               result  of  the election has  been  materially               affected by such non-compliance ?               (c)Whether the alleged non-compliance  with               the   provisions  of  the   Constitution   has               violated Article 14 of the Constitution ?               8.(a) Whether the petitioners are entitled               to  dispute the election of the respondent  on               grounds other than those mentioned in  section               18 of the Act ?               (b)If issue No. 8 (a) is decided in  favour               of the petitioners-               (i)   whether  the  respondent or  any  person

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             with  his  connivance printed,  published  and               distributed  the pamphlet at Annexure A-38  to               the petition ?                                    295               (ii)  whether  the pamphlet at  Annexure  A-38               contained   any  false  statement  of   facts,               relating to the personal character and conduct               of  Shri N. Sanjiva Reddy, a candidate at  the               election  and  other  persons  named  in   the               pamphlet ?               (iii)whether  the persons  found  responsible               for  publishing  the  pamphlet  believed   the               statements made therein as true or had  reason               to believe them to be true ?               (iv)  whether the pamphlet was published  with               the object of prejudicing the prospects of the               election of Shri Sanjiva Reddy and  furthering               the   prospects   of  the  election   of   the               respondent ?               (v)   whether  the election of the  respondent               is liable to be declared void on this ground ?               9.    Whether  the  respondent  or  any  other               person  with  his  connivance  committed   the               offence of bribery as alleged in paragraph  15               of the petition ?               9A.   Whether  the  allegations  in  para.  15               constitute  briberywithin the meaning  of  the               Act ?               10.   Whether  the  offence  of  bribery   was               committed at the election by any other  person               without  the connivance of the  respondent  as               alleged in paragraph 15 of the petition,  land               if  so,  whether it  materially  affected  the               result of the election ?               11.What   reliefs,   if   any,   are    the               petitioners entitled to ?                           FINDINGS Issue No. 5 of Election Petitions Nos. 1, 4 and 5 of 1969. Under  this  issue in Election Petition No. 1 of  1969,  the only  point raised relates to the validity of section 21  of the  Act, while, in the other two election petitions Nos.  4 and 5 of 1969 the validity of Part III of the Act as a whole is  also challenged.  It was contended that Part III of  the Act is ultra vires Article 71 (1) of the Constitution on the ground   that  it  purports  to  curtail  the   jurisdiction conferred  on the Supreme Court to enquire into  and  decide all doubts and disputes arising out of or in connection with the election of a President or Vice-President by laying down certain  limitations, such as the grounds on which only  the election of a President or Vice-President can be  challenged in  an election petition.  The question of validity  of  the Act was considered by this, 296 Court,  in.   BP,.  N. B. Khare v.  Election  Commission  of India(1), where the Court dealt with the contention that the Act and the Rules- framed thereunder are void on the  ground that  they  derogate from the jurisdiction  of  the  Supreme Court  to enquire into and decide all disputes-  and  doubts arising  out  of or in connection with the election  of  the President  or  the  Vice-President.   This  proposition  was supported by the argument, that under section 18 of the Act, the election could be set aside only on certain grounds  and that,  further, under clause (b), it could be done  only  if the result of the election is shown to have been  materially affected   and   that these  are   restrictions   on   the

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jurisdiction  conferred by Article 71 and are  ultra  vires. The Court held:--               "Article 71 (1) merely prescribes the forum in               which   disputes  in  connection   with   the,               election  of the President and  Vice-President               would be enquired into.  It does not prescribe               the  conditions under which the  petition  for               setting aside an election could be  presented.               Under Article 71(3), it is Parliament that  is               authorised  to  make law  for  regulating  any               matter  relating  to  or  connected  with  the               election  of the President or  Vice-President,               and  the Act has been passed by Parliament  in               accordance with this provision.  The right  to               stand  for election and the right to move  for               setting  aside an election are not common  law               rights.  They must be conferred by statute and               can  be enforced only in accordance  with  the               conditions laid down therein.  The  contention               that  the Act and the Rules derogate from  the               jurisdiction   of  the  Supreme  Court   under               Article 71 (1) must accordingly be rejected." The  argument  advanced was that the Court, in  giving  that decision,  incorrectly proceeded on the basis that  Art.  71 (1)  merely prescribes the forum for the decision of  doubts and  disputes  arising  out of or  in  connection  with  the election of a President and Vice-President, and ignored  the circumstance that Art. 71 (1) actually confers  jurisdiction on the Supreme Court which jurisdiction cannot be  curtailed by a parliamentary law passed under Art. 71(3) as the  power of  Parliament to pass the law is subject to the  provisions of  the Constitution, ’including the provision contained  in Art. 71(1).  The distinction sought to be drawn has no force at all.  In that case, the Court specifically dealt with the argument  that  Art.  71 (1) confers  jurisdiction  on the Supreme  Court and gave its decision after considering  this aspect.   In  any  case even if  the  argument  advanced  is accepted  that Art. 71 (1) defines the jurisdiction  of  the Supreme Court, the manner in which, that jurisdiction is to be exercised can only be (1)[1958] S.C.R. 648 297 regulated by an Act of Parliament passed in exercise of  its power under Art. 71(3) In exercise of that power to regulate all matters relating to or connected with the election of  a President  or Vice-President, Parliament  clearly had  power of  laying  down  On grounds on which the  election  can  be challenged  and  set  aside, in addition  to  other  matters relating to the election. In  this connection, learned counsel also wanted to draw  an inference  from  the  provision  in  Art.  329  (b)  of  the Constitution ,which lays down that no election  to  either House  of Parliament or to the House or either House of  the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner  as may be provided for by or under any law  made  by the appropriate Legislature.  The argument was that, in this Article,  there  was  specific mention of  a  law  made  for calling  in  question an election by an  election  petition, whereas there is no such corresponding provision in Art.  71 of  the  Constitution.   The argument  advanced  is  clearly misconceived.   In the case of elections to either House  of Parliament   or  to  the  House  or  either  House  of   the Legislature of a State, Parliament exercises powers to  make law with respect to all matters relating to or in connection

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with the election under Art. 327 and not under Art.  329(b). Article  329(b) is a provision which lays down a  limitation on  the  manner  in  which an election  can  be.  called  in question,  while the procedure for calling in  question  the election.  as well as the grounds on which the election  can be  called in question, can only be laid down by  Parliament by a law passed under Art. 327.  In the case of Art. 71.  it appears that no need was felt of making a provision  similar to  Art.  329(b)  when Art. 71 (1)  it-self  laid  down  the limitation that all doubts and disputes arising out of or in connection  with  the  election of a Presi   dent  or  Vice- President are to be enquired into and decided by the Supreme Court  whose decision shall be final.  This limitation  does not  affect  or limit the power of  Parliament  to  regulate matters  relating  to filing of election  petitions  in  the Supreme Court and of the grounds on which the elections  can be   challenged  when  the  Supreme  Court   exercises   its jurisdiction under Art. 71(1).  In these circumstances,  the argument that Part III of the Act is ultra vires Art.  71(1) of the Constitution must be rejected So  far  as  the  validity  of section  21  of  the  Act  is concerned, it was challenged on the ground that the power of making  rules suffers from the vice of excessive  delegation of legislative powers inasmuch as even essential matters  of policy.  sire,  left  to  be  prescribed  by  rules  by  fix Government  and there are no building principles to that the power can be exercised arbitrarily.  It was further stressed that, in the Act, no provision similar to section 169(3)  of the Representation of the People Act, 1951 or section 298 28  (3) of the Representation of the People Act, 1950,  was included  by  Parliament  so as to require  that  the  Rules framed  under section 21 of the Act should be  laid  before each  House  of Parliament and. that the Rules should  be  ‘ subject to modifications or annulment by Parliament.  It  is not possible to hold that section 21 suffers from any  such defects.   Parliament  laid down  the essential  matters  of policy relating to elections, including election  petitions, in  the Act itself and, thereafter, in section 21  delegated the-power of making rules to the Central Government, subject to two principles of guidance.  One is that the Rules are to be  made after consulting the Election Commission, and  the second  is  that the Rules must be such as are  needed  for carrying   out  the  purposes  of  the  Act.   This   second limitation  clearly requires that the Government, in  making Rules,  has  to ensure that the Rules are all  required  for carrying  out the purposes of the Act; and that itself is  a sufficient  limitation on the exercise of that  power  arbi- trarily  by  the  Government.  In Part II of  the  Act,  the Legislature  has  laid down the  essential  regulations  for holding  the  elections,  and in Part  III,  similarly,  the essential  matters relating to filing of election  petitions and  their  decision,  including the grounds  on  which  the elections  can  be  challenged,  have  been  prescribed   by Parliament  itself.  It is in order to give effect to  these principles  laid down by Parliament itself in the  Act  that the  Government  is to exercise its power of  making  rules. Such power being already limited by the purposes of the  Act cannot be held to be unguided or even arbitrary, even though Parliament  did not choose to lay down the requirement  that the Rules framed must be laid on the table of the two Houses of  Parliament  and  should be subject  to  modification  or annulment  within a specified period.  In fact.   Parliament all the time has the power of altering the Rules by amending the  Act itself in case it disapproves of any of  the  Rules

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made  by the Government, while any Rule, which is  shown  to have  been  made in contravention of the provisions  of  the Act,  or  for any reason other than to give  effect  to  the purposes of the Act, would be declared void by the Court not on  the  ground  that  there  was  excessive  delegation  of legislative power, but that it goes beyond the scope of  the power  conferred on the Government under section 21  of  the Act.   Section  21 of the Act itself cannot.  therefore,  be held to be void on any ground Issue No. 6 of Election Petitions Nos. 1, 4 and 5 of 1969 Under this issue, the petitioners challenged the validity of Rule 4 (1) of the Rules to the extent that it requires  that a  certified copy of the entry relating to the candidate  in the  electoral  roil for the Parliamentary  constituency  in which he is registered must accompany the nomination  paper, and the validity of the consequential provision in Rule 4(2) which lays down that a nomina- 299 tion paper, to which the certified copy referred to in  sub- rule  11  of this Rule is not attached, shall  be  rejected. This part of Rule 4(1) is challenged on two grounds.  One is that  such a requirement is beyond the rule-making power  of the  Government under section 21 of the Act, and the  second is  that the Rule is arbitrary and unreasonable inasmuch  as it  lays  down  only one single manner  of  showing  that  a candidate is an elector for a Parliamentary constituency  by filing  a certified copy of the entry, ruling out all  other methods,  such  as filing of the  published  electoral  roll itself,  On the face of it, the first ground raised  has  no force.   Clause  (d) of sub-s. (2) of section 21  lays  down that  the Rules made under that section may, in  particular, and without prejudice to the generality of the power granted under sub-s. ( 1), provide for the form and manner in  which nominations may be made and the procedure to be followed  in respect  of the presentation of nomination papers; and.  the requirement and that a certified copy of the entry,  showing that the candidate being nominated is an elector for a  Par- liamentary  constituency which alone makes him  eligible  to stand  as a candidate for the office of President  or  Vice- President,   must  accompany  the  nomination  paper   falls squarely within this clause.  The requirement relates to the manner  of  proving that the candidate is an  elector  in  a Parliamentary constituency.  In any case, this provision  in Rule  4(1) would be fully covered by section 21 (1 ) of  the Act  inasmuch  as the requirement is for  no  other  purpose except  of  ensuring  a smooth and proper  election  to  the office  of the President or Vice-President which object  can be achieved by enabling the Returning Officer to ensure that candidates,  whose  nominations  are-accepted  by  him,  are eligible  for election.  In this connection,  reference  was made to the decision of this Court in Ranjit Singh v. Pritam Singh  and  Others(1),  where the Court  had  to  deal  with section 33(5) of the Representation of the People Act, 1951, and the Court held :-               "The object of this provision obviously is  to               enable the. returning officer to check whether               the person standing for election is  qualified               for  the purpose.  The electoral roll  of  the               constituency  for which the returning  Officer               is  making scrutiny would be with him, and  it               is  not necessary for a candidate  to  produce               the  copy of the roll of. that  constituency..               But  where the candidate belongs  to  ’another               constituency, the returning officer would  not               have the roll of that other constituency  with

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             him  and therefore the provision contained  in               s.  33(5) has been made by the legislature  to               enable the returning officer to check that the               candidate   is  qualified  for  standing   for               election.  For that purpose the candidate is               (1)(1966) 3 S.C.R. 543.               300               given  the choice either to produce a copy  of               the electoral roil of that other constituency,               or  of  the  relevant part  thereof  or  of  a               certified  copy of the relevant =ties in  such               roll before the returning officer at the  time               of  the scrutiny, if he has not already  filed               such copy with the nomination paper. This decision clearly supports the view that the requirement in  Rule  4(1), that a certified copy of the  entry  showing that  the  candidate  is  an  elector  in  a   Parliamentary constituency  is necessary in order to enable the  Returning Officer  to  check  whether the candidate  is  eligible  for nomination and election.  The manner in which the  Returning Officer  should,  be given the necessary  information  is  a matter  of detail relating to nomination and,  consequently, this Rule is within the scope of the power conferred on  the Central  Government to make Rules for giving effect  to  the purposes of the Act. Based  on this very decision cited above,  learned  counsel for  the petitioners urged that, in section 3 3 (5 ) of  the Representation  of the People Act, 1951, the requirement  is the production of either a copy of the electoral roll, or of the  relevant  part  thereof, or a  certified  copy  of  the relevant  entry  in such roll, while, in Rule  4(1)  of  the Rules,  the only manner of satisfying the Returning  Officer about  eligibility  permitted is the filing of  a  certified copy of the entry and, consequently, the requirement in Rule 4(1)  is arbitrary and unreasonable.  It has to be  kept  in view  that the election for the office of the  President  or Vice-President  does  not stand on the same footing  as  the election for membership of a House of Parliament or a  House of the State Legislature.  In the latter case, the Returning Officer usually has the electoral roll of the  constituency, from  which  election is to be held, with him  and,  by  and large,  the  candidates  standing from  a  constituency  are enrolled  as electors in the same  constituency.   Provision had  to be made in section 3 3 (5) of the Representation  of the  People  Act, 1951, for those limited  cases  where  the candidate  stood for election from a constituency  different from the one in which he is enrolled as an elector.  In  the case  of  election  for the office  of  President  or  Vice- President, any elector enrolled in the electoral roll of any Parliamentary constituency in India is entitled to stand  as a  candidate,  and it is clear that the electoral  rolls  of those constituencies will not be with the Returning Officer. In  every case, therefore. it would be necessary  that  some evidence  should be available with the Returning Officer  so as  to enable him to ensure that the candidate  is  eligible for  election.  In order to make certain that  the  election proceeds smoothly and to minimise the chances of disputes or doubts  arising, the requirement laid down in Rule 4 (1)  is that a certified copy of the entry alone should be 301 accepted as the proper proof  for showing eligibility of the candidate.   Electoral  rolls are subject to  revision  from time  to’  time.  At the general elections, they  are  fully revised  and, then, subsequent alterations are made in  them as  occasions  arise.   The election to,  the  office  of  a

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President or Vice-President may not coincide with or be very close  to  the time when there is general  revision  of  the electoral  rolls,  so that the electoral rolls  printed  and published nearabout the time of general elections may be out of  date  by  the  time the election for  the  office  of  a President   or  Vice-President  is  held.    The   published electoral  roll  may,  therefore, be  misleading  if  it  is allowed  to  be filed before the Returning Officer  to  show eligibility   in  the  case  of  a  Presidential  or   Vice- Presidential election.  That seems to be the reason why Rule 4(1) lays down that a certified copy of the entry alone will be the proper manner of satisfying the Returning Officer  of the  eligibility of the candidate.  The  original  electoral roll,  of  course, cannot be produced as there is  only  one original   which  is  retained  either  by   the   Electoral Registration  Officer  or  in the  office  where  the  Chief Electoral Registration Officer directs it to be preserved in accordance with the Rules framed under the Representation of the  People Act, 1950.  In such circumstances, if the  rule- making authority did not consider it safe to rely on printed copies  of the electoral rolls issued generally at the  time of  general  elections  to  Parliamentary  constituency,  it cannot  be  said  that the authority  acted  arbitrarily  or unreasonably.  The smoothness of the elections could only be ensured  by requiring the filing of a certified copy of  the entry  which  would be immune from any doubt  or  challenge. The mere fact that the requirement of Rule 4(1) of the Rules differs  from  the  requirement  of  section  33(5)  of  the Representation  of the People Act, 1951, cannot be a  ground for  holding  that  Rule  4(1)  lays  down  an  unreasonable restriction,  so  that this Rule must be held to  be  valid. Rule  4(2),  which  prescribes  the  consequence  for   non- compliance  with the requirement of Rule 4(1), must also  be held to be valid as it is intended merely to make the  valid Rule 4(1) effective. The  next challenge is to the validity of Rule 4(3) and  the consequential  Rule 6(3) (e) of the Rules.  Rule  4(3)  lays down that no elector shall subscribe, whether as proposer or as  seconder-,  more  than  one  nomination  paper  at   any election,  and Rule 6(3)(e) is the  consequential  provision laying  down  that  the Returning  Officer  shall  reject  a nomination paper on the ground that the proposer or seconder has  subscribed,  whether as proposer or  seconder,  another nomination  paper received earlier by the Returning  Officer at  the same election.  The validity of Rule 4(3)  has  been impugned  on  the  ground that it is in  derogation  of  the rights  conferred on a candidate or on electors  by  section 5(2) of the Act.  Section 5 reads as follows:- 302 .lm15 "5.  Nomination  of  candidates.-(1)  Any  person,  may   be nominated  as  a  candidate for election to  the  office  of President or Vice-President if he is qualified to be elected to that office under the Constitution. (2)Each candidate shall be nominated by a nomination paper completed  in  the  prescribed form and  subscribed  by  the candidate himself as assenting to the nomination and by  two electors as proposer and seconder." The  argument is that every candidate, under section 5  (2), has a right to be nominated by any two electors as  proposer and  seconder  without any limitation as to  who  those  two electors are and irrespective of those electors having  done any  act,  such  as  having  proposed  or  seconded  another candidate.   It is also urged that this provision confers  a right  on every elector to subscribe a nomi,nation paper  as

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proposer or seconder without any limitation as to the number of nomination papers which can be so subscribed by him. The  submission  that  section  5  (2)  should  be  read  as conferring  any  right  either on the candidate  or  on  the electors  in respect of signing of nomination papers  cannot be  accepted.   On  the face of it, the  provision  made  in section  5 relates to procedural matters leading up  to  the exercise  of electoral rights of a candidate or an  elector. The filing of nomination paper only regulates the manner  in which a candidate is to signify the fact that he desires  to be elected, and the provision for the nomination paper being signed  by  two electors as proposer and seconder  is  meant only  to  indicate  to  the electors  in  general  that  the candidate is being put forward for election by at least  two electors.   The nomination paper also serves the purpose  of informing  the Returning Officer who are the candidates,  so that appropriate steps can be taken for holding the poll by having  ballot  papers  printed and  appropriate  number  of ballot boxes provided.  The language of section 5 (2) itself shows   that  it  was  while  prescribing  the   manner   of subscribing  a  nomination paper that Parliament  laid  down that  it  should be subscribed by the candidate  himself  as assenting to the nomination and by two electors as  proposer and seconder.  Had there been an intention to confer a right on  any,  of them’ the language would  have  been  different giving such indication by laying down what the candidate and the  electors are entitled to do in respect of a  nomination paper.’  Obviously, section 5 only lays down  the  essential ingredients  of  the  process  of  nomination,  leaving  the details of the manner of nomination to be filled up by Rules made  by the Government under section 21 of the  Act.   Rule 4(3),  which  requires  that  no  elector  shall  subscribe, whether  as proposer or seconder, more than one  nomination paper at any election, is, 303 thus,  supplementary to section 5 (2) as containing  a  more detailed  direction  in  respect  of  filing  of  nomination papers. In  this  connection, learned counsel  for  the  petitioners referred to the decision of this Court in Amolak Chand  v. Raghuveer  Singh(1), in which a similar provision  contained in section 33 of the Representation of the People Act, 1951, as  amended  by the Amending Act 27 of 1956,  came  up  for consideration.   Prior  to  the Amending  Act  27  of  1956, section  33,  dealing with this subject,  specifically  laid down  that  any  person, whose name  is  registered  in  the electoral,  roll of the constituency and who is not  subject to  any  disqualification  mentioned in section  16  of  the Representation  of the, People Act, 1950, may  subscribe  as proposer or seconder as many nomination papers as there  are vacancies  to be filled, but no more; and there was  also  a consequential  provision  in section 36 (7) (b)  which  laid down  that,  where  a  person  has  subscribed,  whether  as proposer  or seconder, a larger number of nomination  papers than  there are vacancies to be filled, those of the  papers so  subscribed  which have been first received, up  to,  the number  of  vacancies to be filled, shall be  deemed  to  be valid.  These provisions were omitted by the Amending Act 27 of  1956, and thereafter, the language of section 33  became similar  to that of section 5 (2) of the Act inasmuch as  it required the candidate to deliver to the Returning,  Officer a  nomination  paper completed in the  prescribed  form  and signed   by  the  candidate  and  by  an  elector   of   the constituency as proposer.  The question arose, whether, if a single  elector signed more than one nomination paper  as  a

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proposer,  any of the nomination papers could be held to  be invalid.   The Court held that, After the enactment  of  the Amending  Act 27 of 1956, there was no ban in section 33  of an  elector  signing  more than one  nomination  paper  and, consequently, if an elector signed more than one  nomination paper, all the nomination papers would be valid.  That  case is, thus, limited to the question whether there is or is  no ban on an elector signing more, than one nomination paper as a proposer.  It did not lay down that every elector had been conferred a right to sign the nomination paper of more  than one candidate as a proposer.  While no. right can be read as having been conferred by such a provision, there will be  no bar  to  a  rule being made  by  the  rule-making  authority limiting  the  number of nomination papers to be  signed  by each  elector as a proposer or a seconder.  In  fact,  Rules are always meant to fill in details of procedure in  respect of which the Act does not contain specific provisions.   The Rules are meant to supplement the provisions of the Act  and to  deal with matters incidental, in respect of which  there is  no definite provision made in the Act itself.  The  fact that  there  is  no ban in section 5 (2) of the  Act  on  an elector signing more than one nomination paper (1)[1968] 3 S.C.R. 246. 8--L303 Sup CI/71 304 as  a proposer or a seconder does not, therefore, mean  that Rule 4(3) of the Rules could not have been competently  made by the Government.  Rule 4(3), on the face of it, contains a very reasonable direction.  If there is only one vacancy for which  election is to be held, an elector can reasonably  be expected to nominate only one candidate as proposer and  put him  forward before the other electors as a suitable  person to be chosen.  Similarly, when seconding a nomination paper, an  elector indicates his preference for that  candidate  to the  general  electorate  which  is to  cast  votes  at  the election.  If the indication of such choice is restricted to as  many candidates as there are vacancies,  the  provision, is,  on  the face of it, salutary and  conducive  to  proper election. The historical background of the Rules relating to elections in  India  also bears out that such a provision  has  always been  considered  desirable.  The earliest Rules  that  have been  brought  to  our notice are the  Electoral  Rules  and Regulations  made for elections to the Legislative  Assembly at  the Centre and to the Legislative Councils of  Provinces under the Government of India Act.  The Rules, as revised up to  25th  August,  1934, made  by  the  Central  Government, contain  a provision in Rule 11 (3) of Part IV,  similar  to that  of  section  5 of the Act, by  laying  down  that  the nomination  paper  shall  be  subscribed  by  the  candidate himself as assenting to the nomination and by two persons as proposer  and  seconder whose names are  registered  on  the electoral  roll  of the constituency.  This is  followed  by sub-rule (4) which limits the number of nomination papers to be  subscribed as proposer or seconder by an elector to  the number  of  vacancies to be filled but no more.   These  two requirements having been laid down by the Rules, the further procedure  was  governed by the Regulations  made  for  each Province for conducting the elections in that Province  even in  respect  of the Central Legislative  Assembly.   In  the Presidency of Madras, Regulation 7 (1 ) (iii) empowered  the Returning  Officer  to refuse any nomination on  the  ground that  there has been a failure on the part of the  candidate or  his  proposer  or seconder to comply  with  any  of  the provisions of Rule 11; and it was in exercise of this  power

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that the Returning Officer could reject the nomination paper signed by an elector or proposer in excess of the number  of vacancies.    For  the  Presidency  of  Bombay,  a   similar provision  was  made  in Regulation  3  of  the  Legislative Assembly   (Bombay)   Electoral   Regulations   dated   13th September,  1923, for rejection of the nomination  paper  by the Returning Officer.  The corresponding provision for  the Province  of,  Bengal was contained in  Regulation  20;  for United  Provinces in Regulation 9; for Punjab in  Regulation 4;  for  Burma  in Regulation V; for  Bihar  and  Orissa  in Regulation  24; for the Central Provinces in  Regulation  4; and  for Delhi in Regulation 5. All these  Regulations  were made under Rule 15 of the Legislative 305 Assembly  Electoral  Rules.   Thus, the  principle  that  an elector  should  not sign nomination papers as  proposer  or seconder  in excess of the number of vacancies was  observed throughout India.  Similar provisions existed in the various Provinces  in  respect  of  elections  to  be  held  to  the Legislative  Councils  of  the Provinces’  Later,  when  the Council of State came into existence after the Government of India Act, 1935, provision was made in Rule 11 (4)  limiting the  number of nomination papers, which could be  subscribed by  an  elector as proposer or seconder, to  the  number  of vacancies   to  be  filled  and  no  more.   Even   in   the Representation of the People Act, 1951, when first  enacted, there  was a similar provision.  The Act, with which we  are concerned,  was passed in 1952 in this stage of  legislation and it is obvious that Parliament, when enacting section  5, left  it  to  the rule-making  authority  to  make  detailed provisions of this nature. It may also be mentioned that a similar provision exists  in the  Rules  governing  elections in  England.   The  Act  in question is the Representation of the People Act, 1949,  and the  Rules  for Conduct of Elections were contained  in  the Second  Schedule  to  that Act.  Rule 8 (1)  of  the  Second Schedule was similar to section 5 (2) of the Act laying down that  the  nomination  paper  shall  be  subscribed  by  two electors  as  proposer  and seconder,  and  by  eight  other electors  as assenting to the nomination.  Rule 8  (5)  laid down the limitation that no person shall subscribe more than one  nomination paper at the same election and, if he  does, his  signature shall be inoperative on any paper other  than the one first delivered.  The provision is not only similar, but it is significant that, when laying down the  limitation in Rule 8 (5), the language used indicates that no right  on an elector to subscribe as proposer and seconder any  number of  nominations  was envisaged as having been  conferred  by Rule 8 ( 1 ). If we were to hold that Rule 8 ( 1 ), which is similar to section 5 (2) of the Act, conferred a right on an elector  to  subscribe any number of  nomination  papers  as proposer and seconder, Rule 8 (5) would have contained words indicating  that  it will over-ride the provisions  of  Rule 8(1).  This could have been done either by making Rule  8(1) subject to Rule 8 (5), or by stating in Rule, 8 (5) that  it shall  prevail not withstanding anything contained  in  Rule 8(1).   There was, in fact, no need to use  such  qualifying words,  because  Rule  8 (1) could  not  be  interpreted  as conferring a right on an elector to subscribe more than  one nomination paper as proposer or seconder, so that Rule 8 (5) was  not a limitation on any right conferred by the  earlier sub-rule.  In these circumstances, it must be held that Rule 4  (3)  of the Rules was validly made by the  Government  in exercise  of its rule-making power under section 21  of  the Act.   That Rule being valid, Rule 6 (3) (e) of  the  Rules,

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which is consequential, must also be held to be valid. 306 Issue No. 1 in Election Petitions Nos. 1, 4 and 5 of 1969. These issues between them raise the question of the validity of the rejection of the nomination papers of three  persons, Shri  Shiv Kirpal Singh, Shri Charan Lal Sahu and Shri  Yogi Raj.   The  nomination paper of Shri Shiv Kirpal  Singh  was rejected  on  the ground that it was not  accompanied  by  a certified copy of the entry relating to him in the electoral roll  for  the Parliamentary constituency in  which  he  was registered.   Instead, his nomination paper was  accompanied by  a  few  printed  sheets purporting to  be  part  of  the electoral  roll of that constituency containing his name  as an  elector.  It has already been held above,  when  dealing with  Issue  No.  6,  that Rule  4(1),  requiring  that  the nomination paper must be accompanied by a certified copy  of the  electoral  roll containing the entry  relating  to  the candidate,  is valid and mandatory.  Since there  was  clear non-compliance   with  that  Rule,  the  rejection  of   the nomination paper of Shri Shiv Kirpal Singh was ’correct  and justified. The nomination paper of Shri Charan Lal Sahu was rejected en the ground that he was less than 35 years of age on the date of   nomination.   The  nomination  paper  was,  no   doubt, accompanied  by  a  certified  copy of  the,  entry  in  the electoral  roll  in which his age was shown as 32  years  on 1-1-1966.  The Returning Officer had some doubt whether Shri Charan  Lal  Sahu  had completed the age of  35  years  and, consequently, he asked Shri Charan Lal Sahu, who was present at  the  time of scrutiny, to state his date of  birth.   He gave  in  writing  that his date of  birth was  15-3-1935. According  to  this date of birth given by Shri  Charan  Lal Sahu  himself  in  his  own  handwriting  to  the  Returning Officer, he was clearly below 35 years of age on the date of nomination.   The  nomination  paper was  rejected  on  this ground.   The rejection is based on Shri Charan  Lal  Sahu’s own statement given before the Returning Officer; and it  is significant that in none of these election petitions has any assertion  been made that, in fact, the age of  Shri  Charan Lal  Sahu was more than 35 years on the date of  nomination. The  only  attempt  made is to challenge the  order  of  the Returning  Officer  on  the ground that  the  entry  in  the electoral roll showed that he was qualified as a  candidate, having  attained  the  age of 35 years.  That  entry  is  of little  value after Shri Charan Lal Sahu’s own statement  in writing  indicating that he was less’ than 35 years of  age. While no election petitioner is prepared to assert and prove that Shri Charan Lal Sahu had in fact completed 35 years  on the date of nomination, it has to be held that the rejection of his nomination paper was fully justified and correct. So far as the rejection of the nomination Paper of Shri Yogi Raj  is concerned, his nomination paper was rejected on  the ground  that he had been proposed and seconded by  the  same electors who                             307 had  proposed and seconded another candidate, Shri  Rajbhoj’ Pandurang  Nathuji,  and  the nomination of  the  later  was received  earlier by the Returning Officer.   The  Returning Officer  rejected the nomination paper by an order  made  in accordance  with  Rule 6(3) (e) read with Rule 4(3)  of  the Rules.  The correctness of this order was challenged on  the ground that these Rules are ultra vires the Act.  In dealing with issue No. 6, it has already been held that these  Rules are  valid and are not in contravention of section 5 (2)  of the  Act.  The rejection of his nomination paper,  based  on

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these valid Rules, was justified and, consequently, it  can- not be held that his nomination paper was wrongly rejected. Issue No. 2 in Election Petitions Nos. 1 & 5 and Issue No. 3 in Election Petition No. 4 of 1969. The acceptance of the nomination paper of the respondent has been challenged on the ground that his nomination paper  was not accompanied by a certified copy of the entry relating to him  in  the  Parliamentary constituency  in  which  he  was registered.  After examining the certified copy filed, it is not possible to accept the submission, because, on the  face of  it, it is a certified copy of the electoral roll  issued by the appropriate authority.  These issues are,  therefore, decided against the election petitioners. Issue No. 3 in Election Petitions Nos. 1 & 5 and Issue No. 2 in Election Petition No., 4 of 1969 Under  these issues, the validity of the acceptance  of  the nomination papers of four candidates, Shri Rajbhoj Pandurang Nathuji,  Shri Santosh Singh Kachhwaha, Pandit Babu Lal  Mag and  Dr. Ram Dulare Tripathi, was challenged.   In  Election Petition No. 5 of 1969, the nomination paper of Shri Rajbhoj Pandurang Nathuji was challenged on two grounds, but one  of the  grounds  was given up, and the only ground,  which  was pressed  and  which  was  also  common  to  other   election petitions,  was that the copy of the electoral  roll,  which accompanied  his nomination paper, was not certified by  the appropriate officer.  This submission was made on the  wrong basis  that the Rules required that the certified copy  must be issued either by he Electoral Registration Officer or the Assistant Electoral Registration Officer.  THe copy was,  in fact,  issued  by one Shri M.V. Madhke with  a  rubber  seal under it showing that he was functioning as Tehsildar, Poona City.  It appears that the permanent Tehsildar of Poona City was  the Assistant Electoral Registration Officer,  but,  at the time of the issue of the copy, he happened to be  absent and Shri M. V. Madke, who was Aval Karkun, was acting in his place.   Since Shri M. V. Madke was acting in place  of  the Tehsildar,  he  was also in charge of  the  electoral  rolls which  were  in his custody.  He was  further  empowered  to exercise all the powers given to the Tehsildar.  He, 308 therefore, was competent to issue the certified copy in  two capacities, viz., (1) as exercising powers of the  Tehsildar conferred  on  him  while  he was acting  in  place  of  the permanent Tehsildar and’ (2) in the capacity of custodian of the  document  of  which the copy was  required.   There  is nothing  in  the Rules framed under the Act,  or  under  the Representation  of  the People Act, 1950  and  Rules  framed thereunder, requiring that a certified copy of the electoral roll  must  necessarily  be issued by  either  an  Electoral Registration Officer or an Assistant Electoral  Registration Officer.   Every  government servant, who has custody  of  a document,  is  competent to issue certified copies  of  that document,  so that the certified copy issued by Shri  M.  V. Madke was a valid and good copy and there was no reason  for rejection of his nomination paper.  It was rightly accepted. In the case of Shri Santosh Singh Kachhwaha, the only ground pressed  was  that his nomination paper was  signed  by  the proposer  and  the candidate on 16th July, 1969,  while  the seconder  signed  it on 21st July,  1969.   Thereafter,  the candidate  himself  presented this nomination paper  to  the Returning  Officer  on  23rd July, 1969.  His  case  may  be considered  with that of Pandit Babu Lal Mag in  which  also the  ground for challenging the validity of  the  nomination paper is similar.  His nomination paper was signed by him on 18th  July, 1969, while both the proposer and  the  seconder

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signed  it on 21st July, 1969.  Thereafter, Pandit Babu  Lal Mag himself presented the nomination paper to the  Returning Officer.   The  point  raised was that,  in  one  case,  the seconder  signed the nomination paper after  the  candidate, while, in the other case, both the proposer and the seconder signed  after  the candidate had done  so.   The  nomination paper  shows that the candidate, when signing,  purports  to "assent to this nomination".  It was urged that a  signature in  token of such assent to that particular nomination  must be  made  by  a candidate after both the  proposer  and  the seconder   have  signed.   Reliance  was  _placed  in   this connection  on the decision in Harmon v. Park(1).   In  that case, the question arose about the validity of a  nomination paper  of  a  candidate Mark Harmon  which,  when  initially presented,  had  the  name  of  William  Ball  as  proposer, together with signatures of the seconder and eight burgesses as  assenting  parties to that nomination.   The  clerk,  on looking  at the burges roll, found that the name of  William Ball  was on the list of electors, but it was noted  in  the margin "not entitled to vote here".  At the time of  presen- tation, one John Green, a duly enrolled burgess, happened to come into the office and, seeing the nomination paper signed by  Ball, and knowing that the name of William Ball was  not on the burgess roll as a person entitled to vote, struck out Ball’s signature (1) [1881] 7 Q.B.D. 369. 309 and  inserted his own name in lieu thereof.  At  that  time, Ball, the original proposer, the seconder and the  assenting burgesses were not present.  Green handed in this nomination paper to the town clerk.  It was in these circumstances that the  nomination  paper was held to be invalid.   Grove,  J., held.:-               "The argument for the appellant was that these               eight persons assent to the nomination of  the               candidate as a proper person to be  nominated;               an  argument  which  if carried  to  its  full               extent  Must involve the proposition that  the               assenting burgesses may subscribe a nomination               paper with the names of proposer and  seconder               in  blank.   But the assents required  by  the               Act,  are  to the nomination in  the  form  in               which  it  is  written,  so  that  any  person               assenting  may first see who is  proposer  and               seconder.   It  may well induce them  to  give               their  assent if they find that  the  proposer               and seconder are good and responsible  persons               in  whom they may trust.  I think,  therefore,               that  the nomination was bad, and the name  of               the   appellant   properly   rejected   as   a               candidate."               Lindley, J., agreeing with him said               "The Act of Parliament requires that the eight               burgesses  shall  assent  to  the  nomination.               What  then  is the nomination  in  writing  to               which they assent ? The nomination consists in               filling  up the name of the candidate  on  the               nomination  form, with the signatures  of  the               proposer  and seconder.  The argument for  the               petitioner  comes  to  this,  that  the  eight               persons might sign even before the name of the               candidate  was on the nomination paper.   This               is  not  the kind of assent  required  by  the               statute.   The  nomination  must  precede  the               assent,  the  assent  must  not  precede   the

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             nomination." Thus,  in  that  case the nomination paper was  held  to  be invalid,  because  the  signature of  John  Green,  who  was ultimately  the  proposer, was put on the  nomination  paper after  the seconder, the candidate and the  eight  assenting burgesses  had  all  signed it.  However, the  point  to  be noticed  is  that, in that case, the  invalidity  was  found because  the circumstances in which John  Green  substituted his  name  as the proposer showed that the  assenting  eight burgesses  had  no knowledge at all that he had  become  the proposer, as they had only assented to the nomination signed by  William Ball.  John Green substituted his name for  that of  William Ball in the absence of the burgesses.   On  this ground,  it was held that the nomination paper could not  be held  to  contain in it the assent of the  eight  burgesses. That  case is distinguishable from the )resent  case.   In the  present case, when the candidates concerned  signed  in token of their assent before the proposers 310 or  the  seconders had signed their nomination  papers,  the candidates  knew that they were assenting to be put  forward as  candidates at the election and, subsequently, after  the proposers and seconders had signed their nomination  papers, they  themselves took those nomination papers and  presented them before the Returning Officer.  Clearly, therefore, they indicated their assent to being nominated by the  particular proposers and seconders, who signed their nomination papers, by taking the step, after their signatures, of carrying  the nomination  papers to the Returning Officer  and  presenting them as valid nominations. There is further the circumstance that, though, in  England, in  the  particular circumstances of the case in  Harmon  v. Park(1)  it was held that a nomination paper was invalid  if signed  by  the proposer after it had been signed  by  eight burgesses   in  token  of  their  assent,  the  law  as   to nominations   in  India  has  throughout  been   interpreted different.   As  early  as  the year  1922,  when  also  the provision  in  respect of signing of nomination  papers  was similar,  it  was  held by the Election  Tribunal  in  Jamna Prasad v. Sri Krishna Prasad ( 2 ) that :               "there  is no rule as to, the order  in  which               names  should be signed.  On the  other  hand,               the subscription by the candidate is mentioned               in  the rule before that by the  proposer  and               seconder.  We should not read’ into the  words               of  the rule any words which do not exist  and               say  that the proposer and the seconder  must               sign  their names before the  subscription  by               the candidate himself; when the requirement is               merely that the candidate must also  subscribe               to  the paper as assenting to the  nomination,               that  is  to say, the naming of himself  as  a               candidate for the-constituency.  What has been               done  by  the petitioner does not  offend  the               words or the spirit of the rule." The  Election Tribunal also took notice of the  decision  in Harmon  v. Park (1) and distinguished it on the ground  that that  case  could not apply where the  subscription  by  the candidate  himself  and  the making  of  signatures  by  the proposer  and the seconder bad only to be considered,  while there was no question of assent of other persons like  eight burgesses. The  same  view was taken in the year 1924 by  the  Election Tribunal in the case of Rai Bahadur Prosanna Kumar Das Gupta v.  Mr.   Chittaranjan  Das(3).   In  that  case  also,  the

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Tribunal  distinguished  the decision in Harmon  v.  Park(1) and, in addi- (1)  [1881] 7 Q.B.D. 369. (2)  Case  No.  121 reported at p. 79 of  Doabia’s  Election Cases 1864-1935 Vol. II, 1955 Edn. (3)  Case  No.  120 reported at p. 73 of  Doabia’s  Election Cases 1864-1935 Vol II, 1955 Edn. 311 tion, referred to the decision in Cox & others v. Davies(1). In the latter case, Grantham, J., had occasion to deal  with a situation very similar to the one in the present case.  He held :-               "The language of the present rule, is not  the               same  as that of the section upon which  those               cases  were decided.  It would require a  good               deal  to  convince me that there  is  anything               wrong  in a candidate filling his own name  in               after those of his proposer and seconder.   In               my own practical experience of elections it is               a  thing  which is constantly  done.   If  the               signatures  of the proposer and seconder  were               used for the purpose of filling in the name of               a  candidate  that they did not  intend,  that               would be another matter.  Harmon v., Park  was               a very different case from this". In this case the validity of the nomination paper was  being challenged  on the ground that the candidate had  filled  in his  own  name after the proposer and seconder  had  already signed  it and, yet, it was held that the  nomination  paper was valid on the ground that there was nothing to show  that the  proposer and seconder did not intend to  nominate  that particular candidate.  In the present case, there is nothing to  show that the candidates did not intend to be  nominated by  the  proposers  and  seconders  who  had  signed   their nomination  papers  after they had signed them in  token  of their  assent.   On the other hand, as indicated  above,  it must  be held that the candidates actually  signified  their assent  to being nominated by the proposers and,  seconders, who had signed earlier, by presenting the nomination  papers themselves to the Returning Officer. Another Election Tribunal, in the year 1946, arrived at  the same  decision  in the case of Mahant Digvijai Nath  v.  Sri Prakash(2).  In that case also, the candidate had signed the nomination paperbefore it was signed it by the  proposer and seconder.  The Tribunal placed reliance on the  decision in Jammna Prasad v. Sri Krishna Prasad (supra) and held -               "Even if it is assumed that strictly  speaking               the  candidate  must sign his name  after  the               proposer and seconder have signed it, there is               no direction in the rules that it should be so               and    that   there   is   no    "in               validating  consequence" provided for  in  the               rules in case this has not been done."               (1)   [1898] 2 Q.B.D. 202               (2)   Case  No.  XXIV reported at  p.  147  of               Indian Election Cases 1935-51 by Sen & Poddar.               312               In  fact, the Tribunal went to the  extent  of               holding that :-               "It  is not open to the returning  officer  to               enquire in what order the signatures had  been               made  so long as the signatures are not  found               to be not genuine or obtained by fraud." In  that  case  also, the Tribunal took notice  of  the  two English  decisions in Harmon v. Park(1) and Cox & Others  v.

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Davies(2) and inferred that it cannot be held that there  is any natural order in which nomination paper should be filled up and signed and, unless there is something  specific  in the  Rules, the fact that, a candidate gives his  assent  on the  nomination paper before the proposer and  seconder  had signed it or before the other entries had been completed  is of no consequence.  Thus, when the Act was enacted in  1952, the  law  in  India, as  administered  by  various  Election Tribunals, was clear that the order, in which signatures are made  on a nomination paper by the candidate,  the  proposer and  the  seconder, is immaterial and  no  nomination  paper would be invalid if the signatures are made by the candidate before  the  proposer  and  the  seconder  signed  it.   The Legislature, when enacting the Act, must be presumed to know that  this  was  the  law  as  interpreted  in  India   and, consequently,  when the language incorporated in  section  5 (2)  of  the Act was used, it must have been  intended  that nomination  papers  would not be invalid by  reason  of  the candidate  making his signature before the proposer and  the seconder.   Even  subsequently, a similar provision  in  the Representation of the People Act, 1951, and the Rules framed thereunder for conduct of elections and election  petitions, was interpreted in the same manner by the Election  Tribunal in  the  case  of Yamuna Prasad V. Jagdish  Prasad  Khare  & Others(3).   Consequently,  it cannot be held that,  in  the present case, the nomination paper of Shri Babu Lal Mag  was invalid because he signed his nomination paper before it was signed by the proposer and seconder, or that the  nomination paper  of Shri Santosh Singh Kachhwalia was invalid  because he  signed  his  nomination paper before  his  seconder  had signed  it.  The nomination papers of both these  candidates were, therefore, rightly accepted. So far as the nomination paper of Dr. Ram Dulare Tripathi is concerned, the allegation was that it did not appear to bear the signatures of the proposer and the seconder, because  a mere look will make it clear ex facie that the whole of  the nomination paper, including the signatures of the  proposer, the  seconder, and the candidate are in the  handwriting  of one  person.   This  allegation  was  controverted  by   the Returning  Officer  in his counter-affidavit who  has  sworn that it did not appear to him that all the signatures (1) [1881] 7 Q.B.D.369.        (2) [1881] 2 Q.B.D. 202. (3)  (1957-58) 13 E.L.R. 1 313 were  in one handwriting and that he was satisfied that  the nomination  paper had been properly proposed,  seconded  and signed.  After this counter-affidavit, when the petition was argued,  learned  counsel for the petitioner did  not  press this  issue and did not try to produce any evidence to  show that  the signatures of the proposer, the seconder, and  the candidate were not genuine.  Consequently, the acceptance of the  nomination  paper of Dr. Ram Dulare  Tripathi  was  not invalid. Issue No. 4 in Election Petition No. 1 of 1969 and Issue No. 7 in Election Petitions Nos. 4 and 5 of 1969. The ground covered by these issues is sought to be raised on the  basis  of the provisions contained in Art.  54  of  the Constitution  read with the definition of "State"  contained in  clause  (58) of section 3 of the  General  Clauses  Act, 1897.   It  was  urged that, under Art.  54,  the  Electoral College  consists of the elected members of both  Houses  of Parliament,  and  the  elected members  of  the  Legislative Assemblies  of  the States.  Relying on  the  definition  of "State"  in section 3 (5 8 ) of the General Clauses Act,  it is  argued  that  Union Territories  are  also  States  and,

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consequently,   the  elected  members  of  the   Legislative Assemblies of the Union Territories must also be included in the  Electoral  College.   Their  omission  is  a   material irregularity which vitiates this election. There  are  two  reasons  why,  on  the  face  of  it,  this submission has to be rejected as untenable.  Article 54,  no doubt, lays down that all elected members of the Legislative Assemblies of the States are to be included in the electoral college;  but the word "States" used in this Article  cannot include Union Territories.  It is true that, under Art. 367, the  General Clauses Act applies for interpretation  of  the Constitution as it applies for the interpretation of an  Act of  the Legislature of the, Dominion of India; but that  Act has been applied as it stood on 26th January, 1950, when the Constitution   came   into  force,  subject  only   to   any adaptations and modifications that may be made therein under Art. 372.  The General Clauses Act, as it was in 1950 and as adapted  or modified under Art. 372, did not define  "State" so  as to include a Union Territory.  The  Constitution  was amended  by the Constitution (Seventh Amendment) Act,  1956, which  introduced Art. 372A in the  Constitution  permitting adaptations  and  modifications  of all laws  which  may  be necessary  or  expedient  for the purpose  of  bringing  the provisions  of the law into accord with the Constitution  as amended by the Seventh Amendment Act, 1956.  It was in exer- cise of this power under Art. 372A that section 3(58) of the General  Clauses  Act  was  amended,  so  that,  thereafter, "State" as defined included Union Territories also.  The new definition  of  "State"  in section  3(58)  of  the  General Clauses Act as a result 314 of  modifications  and adaptions under Art. 372A  would,  no doubt apply to the interpretation of all laws of Parliament, but   it   cannot  apply  to  the  interpretation   of   the Constitution,  because Art. 367 was not amended and  it  was not  laid down that the General Clauses Act, as  adapted  or modified  under any Article other than Art. 372,  will  also apply  to  the interpretation of the  Constitution.   Since, until  its  amendment in 1956 section 3(58) of  the  General Clauses  Act  did  not define  "State"  as  including  Union Territories  for purposes of interpretation of Art. 54,  the Union Territories cannot be treated as included in the  word "State". The second reason why it must be held that members of Legis- latures  of  Union  Territories  cannot  form  part  of  the electoral college under Art. 54 is that Article confines the electoral  college to members of Legislative  Assemblies  of the  States and there are no Legislative Assemblies  in  the Union Territories.  Under Art. 168, for every State there is to be a Legislature which shall consist of the Governor,  in certain  States  two Houses, and in some  other  States  one House.  The Article further lays down that, where there  are two  Houses  of  Legislature,  one is to  be  known  as  the Legislative  Council  and  the  other  as  the   Legislative Assembly  and,  where there is only one House, it is  to  be known as the Legislative Assembly.  On the face, of it, only members  of Houses known as Legislative.   Assemblies  under Art. 168 can be members of the Electoral College under  Art. 54.   In  the case of Union Territories, the  provision  for Legislatures  is contained in Art. 239A, but  that  Article, does  not mention that any House of the Legislature  created for  any  of  the  Union Territories  will  be  known  as  a Legislative  Assembly.  All that Article lays down  is  that Parliament  may, by law, create a body, whether  elected  or partly  nominated  and  partly  elected  to  function  as  a

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Legislature  for  the Union Territory.  Such  a  Legislature created  by  Parliament  is not a  Legislative  Assembly  as contemplated   by   Art.  168  or  Art.  54.    Members   of Legislatures  created for Union Territories under Art.  239A cannot,  therefore,  be held to be  members  of  Legislative Assemblies   of  States.   They  were,  therefore,   rightly excluded  from the electoral college, so that the issue  are decided against the election petitioners. Issues Nos. 9, 9A and 10 in Election Petition No. 5 of 1969. The nomination paper of Shri Phul Singh, petitioner in  this election  petition  was rejected on the  ground  that  his nomination  paper was not signed either by a proposer  or  a seconder,  so that the nomination paper did not comply  with the  requirements of section 5(2) of the Act and was  liable to be rejected under Rule 6(3) of the Rules.  This  petition was  argued  by  Shri Phul Singh in  person,  and  the  only argument that was advanced by him was that section 5 (2)  of the Act, requiring that there must be a nomination signed by two electors as proposer and seconder, is ultra 315 vires the Constitution.  According to him, he possessed  all the  qualifications for being a candidate laid down in  Art. 58.   He had proved that he was an elector registered  in  a Parliamentary constituency by producing a certified copy  of the  entry  relating to him in the electoral roll.   He  had also  produced  a  certificate that  he  had  resigned  from government  service and was not holding an office of  profit under  the Government.  He relied on the electoral  roll  to show  that  he was a citizen of India.  He also  produced  a copy of his High School certificate showing that he was  not less  than  35  years  of  age.   In  these   circumstances, according to him, his nomination paper could not be rejected on the ground that he had not been nominated by two electors as  proposer and seconder.  On the face of it  his  argument that  section  5 (2) of the Act contravenes Art. 58  or  any other  Article  of  the Constitution has no  force  at  all. Section  5  (2)  of the Act was  enacted  by  Parliament  in exercise of its power of regulating all matters relating  to or  connected  with  the election of a  President  or  Vice- President  and,  in exercise of this power,  Parliament  was fully  competent  to  lay down how  a  candidate,  otherwise qualified, must become a candidate by seeking nomination  by two  electors  and  to  prescribe  the  detailed  subsequent procedure  leading  up  to the polling  and  declaration  of result.  The requirement laid down by Parliament that  every person  must ’be nominated by two electors as  proposer  and seconder is a reasonable requirement relating to  regulation of election to the office of a President and cannot be  held to be a curtailment of the right of a qualified candidate to stand as a candidate under Art. 58. In these  circumstances, the  ground, on which the election petition has been  filed, fails  and,  consequently,  the petition  is  liable  to  be dismissed. Issue No. 8 in Election Petitions Nos. 4 and 5 of 1969. This  issued was raised by the petitioners on the plea  that Part  III  of the Act, which includes section 18,  is  ultra vires  Art.  71  (1)  of  the  Constitution,  so  that   the petitioners  are  entitled to challenge an election  of  the President  on grounds other than those mentioned in  section 18 of the Act.  This contention fails in view of the finding on  Issue No. 5 that Part III of the Act is not ultra  vires Art. 71 of the Constitution and that Parliament did not  act contrary  to the provisions of the Constitution in  limiting the  grounds  of  challenge of an election  in  an  election petition  by  enumerating  them in section 18  of  the  Act.

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Consequently,  the  first,  part of Issue No. 8  has  to  be answered  in the negative, holding that the petitioners  are not  entitled to dispute the election of the  respondent  on grounds  other   than those mentioned in section 18  of  the Act. The other parts of the issue, as a consequence, do  not arise at all The issue is answered against the petitioners. 316 Issues Nos. 9, 9A and 10 in Election Petition No. 5 of 1969. These issues are based on the allegations made in  paragraph 15  of  the  petition in which there is,  first,  a  general charge  that the offence of bribery was freely committed  at the  election by the supporters of the respondent  (returned candidate), with his connivance, with the object of inducing the  electors  to  exercise  their vote  in  favour  of  the respondent.  With this object, gratification was offered and given  to  them.  This general allegation is followed  by  a specific  instance in which- it is mentioned that a  licence for  setting  up an industry in Polyester Fibre  was  to  be granted  by  the  Government of  India.   The  Punjab  State Government also applied for the licence.  The licence,  was, however,  refused  to the public sector  and  was,  instead, granted to a private limited company in which Shri Sita  Ram Jaipuria,  a  Member  of the Rajya Sabha. who  was  also  an influential elector, had financial interest.  It was alleged that  this licence was granted to the Company as a  gratifi- cation  with the object of inducing Shri Sita  Ram  Jaipuria and the electors under his influence to exercise their  vote in favour of the respondent and against Shri Sanjiva  Reddy, in  whose  favour  they  were  intending  to  vote  earlier. According  to  the  petitioners, this  licence  was  granted during  the election period.  A further allegation was  made that  one  Shri Kanwar Lal Gupta, a  Member  of  Parliament, wrote a letter to the Election Commission stating that money was  being offered to some members to vote for  the  respon- dent; and, from this, it was also clear that the offence  of bribery was rampant during the elections. So  far as this second allegation relating to the letter  of Shri  Kanwar Lal Gupta, Member of Parliament, is  concerned, no evidence was allowed to be tendered, on it on ’behalf  of the  petitioners,  because  the allegation  was  in  a  very general  form  stating  that  the  offence  of  bribery  was rampant; and this pleading was also based solely on a letter written  to the Election Commission.  No specific  instances were  cited and no particulars were given.  On the  face  of it,  a  general allegation that bribery was rampant  in  the elections could not be made the subject-matter of a specific charge of commission of offence of bribery. Evidence was allowed to be led on the first charge which, if the  facts  bad  been  proved to  be  true,  could  possibly constitute  the  offence  of ’bribery.   If,  in  fact,  the licence  had been granted to a private limited company  with the specific purpose of obtaining the vote of Shri Sita Ram Jaipuria,  an elector and a Member of Parliament,  for  the respondent,  that could constitute bribery.   However,  from the evidence led on this issue on behalf of the  petitioners themselves, it appears that no case at all of commission  of the  offence  of bribery during the  election  period  could possibly  be established; and that appears to be the  reason why, when argu- 317 ments  were heard by the Court after the evidence  had  been recorded,  counsel for the petitioners did not even  try  to argue  that  this offence of bribery had  been  established. The then Chief Minister of Punjab, Sardar Gurnam Singh,  and the  Director  of  Industries,  Punjab,  were  examined   as

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witnesses  on  behalf of the petitioners to  prove  that  an application  for  grant of the licence for  Polyester  Fibre Factory was sent to the ’Central Government on behalf of the Industrial  Development  Corporation  which  was  a   public limited  concern  owned  by  the  Punjab  Government.    The petitioners also examined the Director of Industries.  U.P., the  Registrar of Companies, U.P., and the Secretary of  the Swadeshi  Cotton  Mills  Ltd.,  Kanpur,  to  prove  that  an application was also presented for the licence for the  same factory  on  behalf of Swadeshi Cotton Mills in  which  Shri Sita  Ram Jaipuria holds shares in his own name and a  large number  of shares are also held by his wife,  his  children, and other close relatives.  The Secretary to the  Government of India, Ministry of Industrial Development, and the  Under Secretary to the Government of India, Ministry of  Petroleum And  Chemicals,  were also produced as  witnesses  and  they proved  the  fact that the licence for the  Polyester  Fibre Factory  was granted in favour of Swadeshi Cotton  Mills  in preference  to  the public sector  company,  the  Industrial Development Corporation owned by the Punjab Government.  The evidence  of the latter two witnesses also, however,  proved the  circumstances in which the licence was granted  to  the Swadeshi Cotton Mills, Kanpur, disregarding the claim of the Industrial Development Corporation of Punjab.  According  to the evidence of these two witnesses, the procedure obtaining is  that  all,  applications for such  licences are  first processed  in the relevant Ministries and are  examined  and completed  if any further material is to be  obtained.   The Administrative Ministry, which in this case was the Ministry of  Petroleum  and Chemicals, prepares a  note  showing  the various  factors relating to each application which  require to   be   taken  into  consideration.    Thereafter,   these applications  come  up  for  consideration  before  a   sub- committee  of the Licensing Committee of the  Government  of India.   The  Licensing  Committee is  a  large  body  which includes   amongst  its  members  Secretaries   of   various Ministries as well as representatives of State  Governments. This   Committee   appoints  sub-committees   for   licences concerned with specific Ministries of the Government.In  the case of the Polyster Fibre Factory, the meeting of the  sub- committee took place on the 7th July, 1969 when the decision was  taken  to grant the licence to Swadeshi  Cotton  Mills, Kanpur.  In accordance with the rules, this decision of  the sub-committee was submitted to the Minister in charge of the Ministry of Industrial Development who gave his approval  in the second week of July.  It was subsequently that a  letter of intent for granting the licence to Swadeshi Cotton  Mills was  issued  on behalf of the Government of  India  on  24th July, 1969. 318 According to the procedure prevailing, any parties, who were claimants for licence and whose claims were rejected, had  a right to make a representation after the issue of the letter of  intent and their representation had to be considered  by the  full  Licensing  Committee.  The meeting  of  the  full Licensing Committee was actually held on the 13th  November, 1969.    At  this  meeting,  representatives  of  the   U.P. Government as well as the Punjab Government were present and they  argued  the cases on ’behalf of the two  parties  from their States, viz., the Swadeshi Cotton Mills Ltd.,  Kanpur, and  the  Industrial Development  Corporation,  Punjab.   It appears that it was on the basis of the fact that the letter of intent was issued on 24th July, 1969 that this charge  of bribery  was  put forward by alleging that the  licence  was granted to Swadeshi Cotton Mills during the election period.

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As has been indicated earlier, the decision about the  grant of  licence to Swadeshi Cotton Mills was taken by  the  sub- committee  on the 7th July, 19.69, and even the Minister  in charge  of the Ministry of Industrial Development  gave  his approval  in the, second week of July.  The  candidature  of Shri  Sanjiva  Reddy  for the office of  the  President  was decided  upon by the Parliamentary Board of the Congress  on 12th   July,   1969,  and  the  respondent   announced   his candidature for the first time on 13th July, 1969, which was the last but one day before the close of the second week  of July.   On  the  face of it, the grant  of  the  licence  to Swadeshi  Cotton Mills could not possibly have any  relation to  the  candidature  of either Shri Sanjiva  Reddy  or  the respondent  for  the  office of the  President,  and  it  is impossible  to  accept  that  the  licence  was  granted  to Swadeshi Cotton Mills for the purpose of inducing Shri  Sita Ram Jaipuria to vote and exercise his influence in favour of the respondent.  The grant of the licence was in due  course in accordance with the procedure prevailing in the  Ministry of  the Government of India and had no relation at all  with the  candidature  of the respondent for the  office  of  the President which, in fact, was announced after that  decision had  already been arrived at.  Consequently, the  conclusion follows  that  no offence of bribery was  committed  in  the matter  of grant of licence for the Polyester Fibre  Factory to Swadeshi Cotton Mills; and this ground for setting  aside the  election  of the respondent, therefore,  fails  and  is rejected. Issue No. 4 (a), (b) & (c) in Election Petitions Nos. 4  and 5 of 1969. This issue. relates to the challenge to the validity of  the election of the respondent on the ground of commission of  a number  of offences of undue influence under section 18  (1) (a)  and  (b) (i) of the Act which lays down  that,  if  the Supreme Court is of opinion--               (a)   that  the  offence of bribery  or  undue               influence  at the election has been  committed               by the returned               319               candidate or by any person with the connivance               of the returned candidate; or               (b)   that the result of the election has been               materially affected-               (i)   by reason that the offence of bribery or               undue  influence  at  the  election  has  been               committed  by  any person who is  neither  the               returned  candidate nor a person acting  with               his connivance,               the  Supreme Court shall declare the  election               of the returned candidate to be void.  Section               18(2)  gives  the  definition  of  the   words               "bribery  and undue influence" by laying  down               that,  for the purposes of this  section,  the               offences of bribery and undue influence at  an               election  have the same meaning as in  Chapter               IX-A of the Indian Penal Code.  In the  Indian               Penal Code, section 171C which defines  "undue               influence" is as follows               "171C.  (1) Whoever voluntarily interferes  or               attempts  to interfere with the free  exercise               of any electoral right commits the offence  of               undue influence at an election.               (2)Without prejudice to the generality of  the               provisions of sub-section (1), whoever-               (a)   threatens any candidate or voter, or any

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             person  in whom a candidate or voter is  inte-               rested, with injury of any kind, or               (b)   induces   or   attempts  to   induce   a               candidate  or voter to believe that he or  any               person in whom he is interested will become or               will   be   rendered  an  object   of   Divine               displeasure or of spiritual censure.               shall  be  deemed to interfere with  the  free               exercise  of  the  electoral  right  of   such               candidate or voter, within the meaning of sub-               section (1).               (3)   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               section." To appreciate the significance of this definition, reference may also be made to clause (b) of section 171A which defines "electoral right" as meaning the right of a person to stand, or not to stand as, or to withdraw from being, a  candidate or  to  vote  or refrain from voting at  an  election.   The definition of "undue 320 influence"  also uses the word "injury" in  section  171C(2) (a),  and  this word has also been given a  special  meaning under  the  Indian  Penal  Code,  having  been  defined   in section’44 as denoting any harm whatever illegally caused to any person in body, mind, reputation or property". In  order to decide whether the various allegations made  in the  two election petitions do constitute the commission  of the   offence  of  undue  influence,  it  is  necessary   to understand properly what acts constitute undue influence  as defined  in  section 171C of the Indian  Penal  Code.   Sub- section (1) of section 171C, in general terms, makes any act an  undue influence it interferes or attempts  to  interfere with the free exercise of any electoral Tight, and if it is committed  voluntarily.  The question has arisen  what  acts can  be  held  to interfere with the  free  exercise  of  an electoral  right.  We are here concerned with the  electoral right  of a voter which, according to the definition  in  s. 171A(b), is the right to vote or refrain from voting.  Undue influence can be held to be committed if the person  charged with  the offence interferes or attempts to  interfere  with the free exercise of this right of voting or refraining from voting.’ When an elector exercises the right of vote, it can be  envisaged  that he goes through the  mental  process  of first  taking  a decision that he will vote in favour  of  a particular  candidate  and, thereafter, having made  up  his mind,  he  has to go and exercise that  electoral  right  by casting  the vote in favour of the candidate chosen by  him. The language used in section 171C indicates that the offence of  undue  influence comes in at the second stage  when  the offender  interferes or attempts to interfere with the  free exercise  of  that choice of voting in accordance  with  the decision  already  taken  by the  voter.   It   therefore, follows  that, if Any acts are done which merely  influence the  voter  in making his choice between  one  candidate  or another, they will not amount to interference with the  free exercise  of the electoral right.  In fact,  all  canvassing that  is  carried on and which is considered  legitimate  is intended  to  influence the choice of a voter at  the  first stage  and that is quite permissible.  Once the choice  ha,, been  made by a voter, there should be no interference  with the free exercise by him of that choice by actually  casting

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the vote, or, in the alternative, there may be a case  where a  voter may decide that he will not vote for any  candidate at all, but some acts are done which compel him to cast  his vote.   It  is  in  such cases that  the  offence  of  undue influence will be held to have been committed.  The language used in the definition of "undue influence" implies that  an offence  of  undue  influence  will be  held  to  have  been committed if the elector, having made up his mind to cast  a vote  for a particular candidate, does not do so because  of the  act  of the, offender; and this can only be  if  he  is under  a  threat  or  fear  of  some  adverse   consequence. Whenever any threat of adverse consequence is given, it will tend 321 to  divert the elector from freely exercising his  electoral right  by  voting for the candidate chosen by  him  for  the purpose.   In a case where the voter is threatened  with  an injury  as  defined in the Indian Penal Code, it has  to  be deemed  under section 171C (2) (a) that it  interferes  with the  free exercise of the electoral right of the voter;  and the  same  applies if the elector is induced or  attempt  is made to induce him to believe that he or any person in  whom he  is interested will become or will be rendered an  object of Divine displeasure or (A spiritual censure.  In the first case,  under  clause (a), it is a  temporal  harm  illegally caused to the person, in body, mind, reputation or property, while,   in   the  second  case.  under  clause   (b),   the interference is because of the fear of becoming an object of Divine  displeasure  or of spiritual  censure.   There  can, however,  be cases where the threat may not be of an  injury as defined in section 44, ].P.C., where the harm caused must be  illegal.   Cases  can  arise  where  there  may  be   no illegality  in the threatened consequence to the voter  and, yet, it may interfere with the free exercise of his right to vote.   An instance that can be cited is where a father  may threaten to disinherit his son in respect of property solely owned  by the father unless his son voted for  a  particular candidate or refrained from voting for some other candidate. The  consequence  of non-compliance with the wishes  of  the father would be the loss of inheritance to the son which  is not  an  injury  as defined in section 44,  I.P.C.  Such  an attempt  by the father would clearly amount to  exercise  of undue influence by him on his son.  But, in cases where  the only  act  done is for the purpose of convincing  the  voter that  a particular candidate is not the proper candidate  to whom the vote should be given, that act cannot be held to be one   which  interferes  with  the  free  exercise  of   the electoral, right. It has, however, been argued that there may be a case  where such  virulent  propaganda  may  be  carried  on  against  a candidate  as may cloud the mind and judgment of the  voters and  almost  compel  them to come to a  decision  that  they should not vote for that particular candidate.  It was urged that, in such a case, it should be held that undue influence was   exercised   on  the  voters.   In   considering   this proposition,  various aspects have to be kept in view.   The first  is that, if it is held that propaganda adverse  to  a candidate  can amount to undue influence, it wilt be  almost impossible   to  draw  a  line  and  differentiate   between legitimate propaganda which will amount to undue  influence, and  that  which will not.  Then comes the question  of  the reverse  type of propaganda where a particular candidate  is so  highly praised that voters are influenced to the  extent of considering him an excellent person well above all  other candidates;  and  the  question  will  be  whether  such  an

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influence  on  the mind of a voter can be held to  be  undue influence.   More  important than all these aspects  is  the scheme of 322 the  law and the language used in it which, in  my  opinion, very  clearly show that mere propaganda against a  candidate cannot be held to be exercise of undue influence.  The  word "free"  is  used  in section  171C    I.P.C.,  as qualifying "exercise" and not as qualifying the word "vote".  If undue influence had been defined as interference with the exercise of  free  vote,  possibly the definition could  have  been construed  as indicating that influence brought on the  mind of  a  voter  so as to change the manner of  his  voting  by affecting his choice and judgment in selecting the candidate for  whom he is going to cast his vote, would  be  comprised within undue influence.  The word "free" having been used as qualifying the word "exercise" gives the indication that the freedom envisaged is to cast the vote in accordance with the choice  already arrived at and, if such freedom  of  casting the  vote in that manner is interfered with, the offence  of undue  influence  will be held to have been  committed.   In Words  and  Phrases,  Permanent Edition, Vol.  17A  by  West Publishing  Company,  the  meaning of  the  word  "free"  in various contexts accepted in America has been given, and the relevant meaning which can assist is in the following  words :- "Within  the constitutional provision, elections are  "free" when the voters are subjected to no intimidation or improper influence,  and whenever every voter is allowed to vote  as his own judgment and conscience dictate." This meaning clearly indicates that the question of  freedom actually  arises  at  the stage when  a  voter  has  already exercised  his  judgment and conscience, has  decided  which candidate he will vote for, and is then allowed to cast  his vote  freely  without  any  interference  in  the  form   of intimidation or improper influence. A very important aspect in considering this argument is that whatever   meaning  is  given  to  the   expression   "undue influence" in the Act will also apply when interpreting  the provisions of the Indian Penal Code, because the Act imports the  definition of " undue influence" from section 171-C  of the  Code.  In the Indian Penal Code, a new Chapter IXA  was introduced  by the Indian Elections Offences  and  Inquiries Act  39  of  1920.  The statement  of  objects  and  reasons attached to the Bill which culminated in that Act  explained this provision by stating that               "undue influence at an election is defined  as               the   voluntary  interference   or   attempted               interference  with the right of any person  to               stand,  or  not to stand,  or  withdraw from               being, a candidate, or to vote or refrain from               voting.  This covers all threats of injury  to               person or property and all illegal methods of               persuasion and               323               any  interference  with  the  liberty-of   the               candidates or the electors."               The  language used in section 171C was,  thus,               intended   to  cover  only  cases  where   the               interference  comes  at  the  stage  when  the               elector  must  have liberty to cast  his  vote               freely,  having already made up his  mind  how               that  vote is going to be cast.  It is  inter-               ference  at this stage that was  envisaged  as               amounting to undue influence.

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             The  subject  of  influence at  the  stage  of               making a choice was dealt with in Chapter  IXA               of the Indian Penal Code under a separate  and               distinct  provision  which  is  contained   in               section 17 1 G and is as follows               "Whoever  with intent to affect the result  of               an  election makes or publishes any  statement               purporting to be a statement of fact which  is               false and which he either knows or believes to               be  false or does not believe to be  true,  in               relation to the personal character or  conduct               of  any  candidate,  shall  be  punished  with               fine." This section clearly recognises that, at elections there  is bound  to  be  propaganda  in  which  candidates  or   their supporters may be issuing statements so as to influence  the voters  against  their rival candidates, and it  limits  the prohibition  by law to only those statements of  fact  which are  false, or believed to be false, or believed not  to  be true,  in relation to the personal character or  conduct  of any candidate.  Propaganda can be not only by attacking  the personal  character or conduct of a candidate, but even  his political  or public character and activities.  On the  face of it, section 171G envisages that propaganda of the  latter type  will  not  be treated as an offence.   Only  when  the propaganda  is  in  the form of  false  statements  of  fact relating  to  the  personal  character  or  conduct  of  the candidate  that the law will punish the person indulging  in it  by  making him liable to payment of fine.   These  false statements  about the personal character or conduct  of  the candidate may, of course, be scurrilous and foul, but, even then,  the offence committed would fall under section  171G, I.P.C.,  which makes the offence punishable with fine  only. On the other hand, an offence of undue, influence as defined in  section  171C, I.P.C., has been  made  punishable  under section   171F,   I.P.C.,  with   imprisonment   of   either description for a term which may extend to one year or  with fine.  or  with both.  If it is held that  false  propaganda against  personal  character or conduct of a  candidate  can amount  to  undue influence, the person indulging  in  that propaganda  would become liable to punishment under  section 171F,  I.P.C.,  which  has been considered  a  more  serious offence  by  being  made  punishable  with  imprisonment  in addition to, or, in the alternative, with fine.  This inter- 324 pretation  would  thus make section  171G,  I.P.C.,  totally ineffective  and  otiose.  If the  false  statements  as  to personal  character  or conduct are held  to  be  punishable under   section  171F  as  constituting  offence  of   undue influence, there would be no ’point in prosecuting the  same person for the less serious offence under section 171G.   In fact,  section 171G would be fully covered by  section  171F and, consequently, the interpretation sought to he urged  in these petitions has to be rejected. It  is  true  that,  in  the  Act,  there  is  no  provision indicating that ’Publication by a candidate, or by any other person with his connivance, of a statement of fact which  is false  in relation to the personal character or  conduct  of another candidate will be deemed to be a corrupt practice on the  commission of which an election can be declared  void. Such  omission in the Act cannot, however, be a good  reason for enlarging the meaning of the offence of undue  influence so  as  to  hold that an election of a  President  or  Vice- President  must also be set aside on such a ground.  It  may be noticed in this connection that, in the Representation of

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the  People  Act,  1951,  there  is  a  specific   provision contained  in  section 123 (4) laying down  that  a  corrupt practice is constituted by 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 doe,.  not believe to be true, in relation to  the  personal character  or conduct of any candidate, or in  relation  to the candidature, or withdrawal, or any candid-ate, being  a statement reasonably calculated to prejudice, the  prospects of that candidate’s election.  In the Representation of  the People Act, 1951 also, undue influence is defined in  almost the  same  language  as that contained  in  section  17  IC. I.P.C.  In that Act, therefore, an election can be  declared void  not only on the ground of commission of  the  corrupt practice  of  undue  influence, but also on  the  ground  of publication of false propaganda as to the personal character or  conduct of a candidate.  Parliament, however, chose  not to  include any such provision in the Act which  was  passed when the Representation of the People Act. 1951 had  already been enacted and enforced.  The Court is not concerned  with the reasons which weighed with the Parliament in making such an omission in the Act when a.similar provision had been ept in  the  earlier enactment in respect of  elections  to  the Central  and  State  Legislatures.   The  omission  may   be deliberate or accidental, but, in either case, it is not for the  courts to attempt to fill up this gap by enlarging  the meaning  to  be given to the  expression  "undue  influence" which  is  the  corrupt practice included in the  Act  as  a ground for setting aside the election.  It is clear from the scheme  of Chapter IXA of the Indian Penal Code  that  false propaganda as to the personal character and conduct of a 325 candidate  was  created  as  a  separate  offence  and   the definition  given in section 171C of "undue  influence"  was not intended to lay down that such propaganda will amount to interference with the free exercise of electoral right so as to constitute undue influence. The  only  case of this Court dealing with the  question  of undue  influence under the Act is reported in  Shri  Baburao Patel & Others v. Dr.  Zakir Husain & Others(1), where  the, Court had to consider the distinction between canvassing and exercise of undue influence and held               "It is difficult to lay down in general  terms               where mere canvassing ends and interference or               attempt at interference with the free exercise               of  any  electoral right beings.   That  is  a               matter  to  be determined in  each  case;  but               there can be no doubt that, if what is done is               merely  canvassing,  it  would  not  be  undue               influence.   As  subsection (3)  of  s.  171-C               shows,  the  mere exercise of  a  legal  right               without intent to interfere with an  electoral               right would not be undue influence."               The  Court, after reviewing the relevant  case               law  under  the Representation of  the  People               Act, then proceeded to hold               "It will be seen from the above review of  the               cases relating to undue influence that it  has               been consistently held in this country that it               is open to Ministers to canvass for candidates               of  their party standing for  election.   Such               canvassing does not amount to undue  influence               but is proper use of the Minister’s right  to               ask the public to support candidates belonging

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             to  the Minister’s party.  It is only where  a               Minister abuses his position as such and  goes               beyond  merely asking for support  for  candi-               dates  belonging to his party that a  question               of undue influence may arise.  But so long  as               the  Minister only asks the electors  to  vote               for  a particular candidate belonging  to  his               party  and puts forward before the public  the               merits of his candidate it cannot be said that               by   merely   making  such  request   to   the               electorate   the  Minister   exercises   undue               influence.   The  fact  that  the   Minister’s               request  was addressed in the form of what  is               called a whip is also immaterial so long as it               is  clear that there is no compulsion  on  the               electorate to vote in the manner indicated." In that case, the Court thus envisaged that the question  of undue  influence  will arise  if there  is  some  sort  of compulsion on the electorate to vote in the manner indicated by the person alleged to (1) [1968] 2 S.C.R. 133. 326 have committed that corrupt practice, and a question of such compulsion  can  obviously arise only when a  voter,  having made  his choice as to the person for whom he will cast  his vote, is under some pressure to vote for another  candid-ate owing  to the undue influence exercised on him.  The  nature of interference, which would constitute undue influence, was further  clarified when dealing with the letters  issued  by the Chief Whip of the Congress Party requesting members  not to cast their second preference vote, by stating :- "Such  a  request  or  advice  does  not,  in  our  opinion, interfere  with the free exercise of their  electoral  right for the electors still would be free to do what they desired in spite of the advice." The Court, thus, envisaged that undue influence is exercised when  an  elector is not free to do what he  desires,  while influencing  his  desire  will  not  be  exercise  of  undue influence. It  has  already  been indicated above that  the  scheme  of Chapter IXA of the Indian Penal Code and section 123 of  the Representation  of the People Act is quite similar  inasmuch as, in both these enactments, undue influence is defined  in almost  identical  language  and the  publication  of  false statements  as to the personal character of a candidate  has been separately made either a criminal offence or a  corrupt practice  in practically the same  language.   Consequently, some assistance can be derived from the interpretation  that has  been given to the provisions contained in section  123, subsection  (2) and (4) of the Representation of the  People Act,  1951.   Dealing with this aspect in the case  of  Rain Dial v. Sant Lal and Others(1), this Court first pointed out that  the  law  in England relating to  undue  influence  at elections  is  not  the  same  as  the  law  in  India  and, consequently,  proceeded to interpret the law  here  without taking into account the principles laid down in England.  In that  case,  the question arose whether,  what  a  religious leader  had done by issuing a Hukam or Farman.  amounted  to undue influence or not.  The Court held:-               "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 candidates and  to  canvass               for such of them as he considers worthy of the               confidence  of the electors.  In other  words,

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             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               (1)   [1959] Supl. 2 S.C.R. 748.               327               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 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 choice to  the  Namdhari               electors,  not  only by issuing the  hukam  or               farman,  as  contained in Ext.  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 section 123 (2) of the Act." In that case, thus, the Court envisaged. that the ’Hukam  or ’Farman’  issued by the religious leader was a mandate,  the disobedience  of  which would carry  divine  displeasure  or spiritual  censure, and it was for this reason that  it  was held  that  corrupt  practice of undue  influence  had  been committed. In  the  case  of Inder Lal v. Lal  Singh  (1),  this  Court explained the scope and purpose of sub-s. (4) of section 123 of  the  Representation of the People Act  by  pointing  out that.  for the protection of the constituency  against  acts which would be fatal to the freedom of election, the statute had provided for the inclusion of tile circulation of  false statements  concerning the private character of a  candidate amongst  corrupt  practices,  and  dissemination  of   false statements  about the personal character of a candidate  had been  constituted  into a corrupt  practice.   This  corrupt practice  was envisaged as separate and distinct  from  the corrupt  practice  of undue influence mentioned  in  section 123(2) of that Act. In  the  case  of  Lalrouktung  v.  Haokholal  Thangjom  and Another(2),  this  Court dealt with a case where  there  had been  an assault close to the polling station after  certain pamphlets  had  been  issued, wherein  threats  were  freely canvassed and exhorta- (1) [1962] Supl. 3 S.C.R. 114. (2) Civil Appeal No. 1315/68 decided on 9.1.69. 328

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tions made that those, who opposed the candidates  supported by  the  two organisations (which  issued  the  pamphlets), would not be forgotten nor spared.  The Court then proceeded to hold :-               "In  the  light of propaganda of  this  nature               carried  on  before the polling days,  it  is,               impossible to view the assault as an  isolated               incident  nor  can it be  legitimately  argued               that   the   conclusion   of   the    Judicial               Commissioner  that  it was  a  culmination  of               those threats was either an unreasonable or an               unwarranted conclusion.  There can be no doubt               that  such rowdyism at a polling  station  was               bound  to  deter voters from  coining  to  the               polling  station  to  exercise  freely   their               franchise.  We have no doubt that the  assault               by  the  appellant’s polling  agent  attracted               section  123(2),  proviso (a), and  that  also               rendered the election void."               This  was, again a case where the exercise  of               their  electoral  right  by  the  voters   was               interfered  by  physical act  of  assault  and               threat on voters who intended to vote for the:               rival candidate.               The  last  case  of this Court  which  may  be               referred  is the decision in Manubhai  Nandlal               Amersey   v.   Popatlal  Manilal   Joshi   and               Others(1),  in  which the effect of  a  speech               came up for consideration and it was held               "The  actual  effect  of  the  speech  is  not               material Corrupt practice is committed if the,               speech  is  calculated to interfere  with  the               free exercise of electoral right and to  leave               no  choice to the electors in the matter..  In               considering  the speeches, the status  of  the               speaker and the character of the audience  are               relevant considerations."               This  case  also, thus, envisaged  that  there               must  be  some element ’of compulsion  on  the               voter  to vote in a particular  manner  before               the  act said to be a corrupt practice can  be               held to amount to undue influence.               Coming  to the decisions of the  High  Courts,               the  first  case  that may  be  cited  is  the               decision  of the Orissa High Court  in  Radha-               kanta  Mishra  v.  Nityananda  Mahapatra   and               Another(2).    Barman.  J.   explained   undue               influence in the following words :-               "A  voter must be able to freely exercise  his               electoral  right.   He must be a  free  agent.               All  influences are not necessarily  undue  or               unlawful.  Legitimate exercise of influence by               a political party or association or even an               (1) A.I.R 1969 S.C. 734.               (2) 19 E.L.R. 203.               329               individual  should not be confused with  undue               influence.     Persuasion   may   be,    quite               legitimate  and may be fairly pressed  on  the               voters.   On  the  other  hand,  pressure   of               whatever  character,  whether  acting  on  the               fears,  threat,  etc., if so exercised  as  to               over-power the volition without convincing the               judgment  is  a  specie%  of  restraint  which               interferes with the free exercise of electoral

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             right.   In such an atmosphere, the free  play               of  the  elector’s  judgment,  discretion   or               wishes  is overborne and this will  constitute               undue  influence,  though no force  is  either               used  or threatened.  It is not  necessary  to               establish  that actual violence had been  used               or  even  threatened.  Methods  of  inducement               which are so powerful as to leave no free will               to the voter in the exercise of his choice may               amount  to undue influence.  Imaginary  terror               may  have been created sufficient  to  deprive               him of free agency."               He,  thus,  distinguished  between   influence               which is exercised for convincing the judgment               of a voter, and influence the result of  which               is  that  the  free  play  of  the   elector’s               judgment,  discretion or wishes  is  overborne               and  the  elector  is left  no  free  will  to               exercise his choice.  In this decision,  thus,               the   distinction,  as  indicated  above,   is               clearly brought out.  In that case, however, a               picture with a caption had been published as a               part  of a cover of booklet. and it  was  held               that  its publication amounted to exercise  of               undue influence.  The reason is indicated when               the  learned Judge, dealing with this  poster,               _held :-               "The  picture with the caption, as  it  stood,               was  intended  to  be  made  catchy  with   an               ulterior motive and was deliberately published               in  that  asked  form in  order  to  create  a               feeling  of  terror, fear and hatred  and  was               such  a compelling appeal to the mind  of  the               voters  as to amount to interference with  the               free exercise of voters’ electoral right."               The picture in question showed a dead boy with               a  caption  in  Oriya  which,  translated   in               English,  was to the effect "Do not  vote  for               the  Congress who killed Sahid  Sunil".   That               picture,  thus,  did not  contain any  false               statement or representation as to the personal               character of a candidate; but Barman, J., held               :-               "The picture of the dead boy with the  caption               was a direct charge against the Congress  that               it  killed  the  deceased  boy.   This  was  a               misrepresentating of fact.  It was as a result               of   firing  by  the  police  that   the   boy               unfortunately  got involved.  We do  not  know               whether  the Congress Party took a stern  view               of the firing, whether the Congress               330               Party itself condemned the firing, and whether               ultimately  those responsible for  the  firing               were   reprimanded   and  punished   for   the               unfortunate incident.  The catchy caption that               the  Congress killed the boy was false  repre-               sentation  made by the respondent No.  1  with               intent  to strike terror into the mind of  the               voters and thereby to interfere with the  free               exercise  of electoral right of  such  terror-               stricken voters.  The picture with the caption               was a distortion of a situation for  political               ends done with the intention as aforesaid.  It               was an artful device to catch the  imagination

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             of  the voters.  It terrorised the voters  and               was  likely to create in their mind a  feeling               of  terror, fear, hatred or  strong  prejudice               against  the Congress.  In the  caption  under               the dead boy’s picture was a veiled threat  to               the voters that if they voted for the Congress               who   were  capable  of  killing,  then   such               Congress, so retained in power, would  again,-               as it actually did in the past, resort to such               killing of men in which the voters  themselves               or their children might also be killed in  the               same way as it was openly demonstrated by  the               picture of the dead boy with the caption.   It               at least did create or was likely to create or               had  the  tendency  to create  terror  and  an               unknown  fear in the mind of the voters.   The               picture  of  the  dead boy  with  the  caption               frightened   the  voters  or  was  likely   to               frighten  them and it was intended to  overawe               voters  which  interfered  or  was  likely  to               interfere  or  had the tendency  to  interfere               with  the free exercise of electoral right  of               the voters."               It  will, thus, be seen that the  main  reason               for  holding  that  the  publication  of   the               picture   amounted   to  exercise   of   undue               influence was that it created terror and  fear               in  the  minds of voters of personal  harm  to               themselves  or  their children  in  case  they               voted   for  the  Congress   candidate.    The               publication of the picture was not field to be               undue  influence  or  interference  with   the               electoral  right  because it  contained  false               propaganda   against  the  candidate  or   the               Congress Party, but because of the element  of               compulsion  which was envisaged as arising  in               the  minds of the voters not to vote  for  the               Congress  because of the fear of  consequences               which  might be listed on themselves or  their               children  in case they vote for the  Congress.               Barman, J., in this connection, also  referred               to  the  decisions of  Election  Tribunals  in               Sardul  Singh  v. Hukam Singh(1),  and  Jujhar               Singh v. Bhairon Lall(2) and agreed with  tile               principles laid down in those cases.  I  shall               indicate later the               (1)  6  E.L.R.  316.                   (2)   7               E.L.R. 45-.               331               ratio  of those two decisions.’ The other  two               Judges,  constituting the  majority,  differed               from Barman, J., and held that the publication               of  the  picture  did  not  amount  to   undue               influence,  because,  in  their  opinion,   no               inference could be drawn that the  publication               of this picture was intended to create a  fear               in  the minds of the voters.  Rao,  J.,  dealt               with the submission of Mr. Rath, the  counsel,               that  a look at the photo will make the  voter               think that, if he votes for the Congress Party               during whose office the killing took place, he               would  be  similarly killed and  therefore  it               created a fear in his mind and thus interferes               with the free exercise of the electoral right.               He rejected it by saying that, in his opinion,

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             this  was a farfetched argument.   He  further               held :-               "The picture simply represents Sunil De  after               being  shot at by the, police firing with  the               caption  underneath  "Do  not  vote  for   the               Congress who killed Sahid Sunil".  It does not               say  that, if the voter give their  votes  for               the  Congress, all the voters or some of  them               would  be  shot  as Sunil  De.   Further,  the               shooting of Sunil De is known to everybody and               that  is  on  account  of  police  firing   in               connection  with  the  States   Reorganisation               Committee  Report’s disturbances,  the  voters               therefore  cannot  be influenced to  think  by               publication of this poster that if they  voted               for  the Congress they would be shot  at  like               that.   It is also significant that  there  is               nothing  Mentioned  about this poster  in  the               election  campaign  in the  booklet  on  whose               cover  the photo is printed.   The  respondent               No.  1, therefore, could not have intended  to               cause  fear  in  the minds of  the  voters  by               publication of exhibit 3 in order to interfere               with the free exercise of their votes."               Das,  J., dealt with this aspect as follows               "Nothing  has  been  stated  in  the  body  of               exhibit  3  relating  to  this  picture.   The               picture simply represented a dead person after               being  shot  by  the police  firing  with  the               caption:  "Do  not vote for the  Congress  who               killed Saheed (Martyr) Sunil".  Nowhere it was               stated  if the voters gave their votes to  the               Congress they would be shot at as Sunil.   The               further  fact is that Sunil De was shot at  by               the police firing in connection with the  dis-               turbance arising out of the recommendations of               the States Reorganisation Commission of  which               the  electors  had known  before.   Thus,  the               voters cannot be said to have been  influenced               to  think that if they voted for the  Congress               they  would be shot at like Sunil.  Hence,  in               my  opinion,  the respondent No. 1  could  not               have  intended to cause any fear in the  minds               of the voters by               332               the    above   publication    to    constitute               interference  with the free exercise  of.  the               electoral right of the voters."               The  decisions  by these two  Judges  are,  of               course,   of  no  help;  but,  its   indicated               earlier,  even the decision of Barman, J.,  is               in line with the view taken above and does not               indicate that mere false propaganda as to  the               personal  character  of a  candidate  or  even               relating to the party sponsoring the candidate               can  amount to the corrupt practice  of  undue               influence.               The  next case which may be cited  is  another               decision  of the Orissa.  High Court in  Abdul               Rahiman  Khan v. Radha Krushna Biswas  Roy(1).               In  that  case, the successful  candidate  had               published  a  poem  and  the  question   arose               whether the publication of that poem  amounted               to  exercise  of undue influence.   The  Court               first. in general terms, dealt with the  scope

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             of undue influence by saying:-               "Section 1 23 of the Act is rather wide in its               term  and contemplates four distinct forms  of               interference  with  the free exercise  of  any               electoral  right, viz.,  direct  interference.               indirect   interference,  direct  attempt   at               interference    and   indirect   attempt    at               interference.   There  is  nothing   in the               definition  that such interference or  attempt               at  interference  should be by any  method  of               compulsion.   Evidently, the offence  includes               such  interference or attempt to interfere  by               any-method,  and  it definitely  includes  the               method of inducement wherein there may not  he               any  compulsion at all.  The inducement  again               must  be of such powerful type as would  leave               no  free will to the voter in the exercise  of               his electoral right."               This general explanation does not appear to be               inconsistent   with  the  view  taken   above,               because it was held that, even if there be  no               compulsion  at all, the inducement must be  of               such powerful type as would leave no free will               to the voter-in the exercise of his  electoral               right.    The  freedom  of   will   envisaged,               obviously,  is to vote in accordance with  his               choice.   On  the facts in that case,  it  was               found  that, in the poem, there  were  threats               against Raja of Kalahandi in whom the defeated               candidate was interested.  After referring  to               the  Raja  of  Kalahandi,  the   objectionable               portion read is follows               "Without  any consideration for your  own  and               others.  you acted as a devil.  Would  anybody               now  be  able to save you if  you  are  beaten               mercilessly  ?  Having  done  all  the   above               mischief,   now  you  are  appealing  to   the               electors for their vote as a shameless person.               If there               (1)   A.I.R. 1959 Orissa 183.               333               were  a grain of shame left in you  would  not               have progressed at all.  You are a thief and a               Badmas  and  you should not remain  our  land.               You  who belong to, the Ganatantra  party  are               only fit for the gallows."               These  words, clearly, contained a  threat  to               the life and were, therefore, rightly held  to               amount   to  exercise  of   undue   influence.               Similarly,   another   portion  was   to   the               following effect :               "The leader of your Party was making money  by               selling  widows is well-known to  the  raiyas.               Since there is not a bit of sense left in  you               are  now  seeking votes of these  raiyats,  of               Koraput.  They will no longer be dissuaded  by               your words."               It was further stated that :               "the raiyats of this Constituency are bound to               take  revenge  on you.  How dare you  ask  for               their votes ?"                Again,  the  Court, in  holding.  that  these               publications  amounted  to exercise  of  undue               influence, was fully justified, because  there               were  clear  threats against the life  of  the

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             candidate.               The  only  other  case of a  High  Court  that               requires to be noticed is the decision. of the               Punjab  High  Court in Amir  Chand  Tota  Ram,               Delhi  v. Smt Sucheta Kriplani(1).  The  Court               expressed its view by holding :-               "The  legal phrase "undue  influence"  denotes               something  legally  wrong or  violative  of  a               legal  duty.   In  order  to  establish  undue               influence,   it  must  be  proved   that   the               influence  was such as to deprive  the  person               affected of the free exercise of his will.  It               must  amount to; imposing a restraint  on  the               will  of another whereby he is prevented  from               doing what he wishes to do or is forced to  do               which he does not wish to do.               An advice, argument persuasion or solicitation               cannot  constitute  undue  influence.   Honest               intercession,  even importunity,’ falls  short               of controlling a person’s free exercise of his               will.   A  persuasion, which leaves  a  person               free  to  adopt his own course, is  not  undue               influence.   Otherwise  a  suggestion  or   an               entreaty from somebody, held in esteem,  could               be treated as undue influence.  In the absence               of   proof   that  a  person  has   been,   in               consequence of the alleged influence, deprived               of  free agency no question of there being  an               undue influence arises.               It   is  not  objectionable  to  exercise   an               influence  by acts of kindness or  appeals  to               the free reason and understanding.  So long as               the free agency of the other               (1)   A.I.R. 1961 Pb. 383.               334               person   is  not  prevented  or  impaired   by               obtaining  a  domination  over  the  mind   of               another, it cannot be deemed as an exercise of               an  undue  influence.  The  essence  of  undue               influence’ ’is that a person is constrained to               do against his will, but for the influence  he               would  have refused to do if left to  exercise               his  own judgment.  It has to be shown that  a               person’s volition had thus been controlled  by               another  whereby he could not pursue  his  own               inclination,  being  too weak  to  resist  the               importunity  and  in  view  of  the   pressure               exercised  on  his  mind  he  could  not   act               intelligently and voluntarily and’ had  become               subject to the will of the other who had  thus               obtained dominion over his mind."               This   exposition  of  the  scope  of   "undue               influence" is also in line with the view taken               above.  It envisages that the corrupt practise               of undue influence is committed when a  person               is constrained to do against his will. and  is               unable to act in accordance with his judgment.               Such   a  position  can  only  arise  if   the               influence  is brought on the person  concerned               after  he has already formed his judgment  and               decided  how  he will exercise  his  electoral               right.    Propaganda   for  the   purpose   of               influencing the judgment, even if undesirable,               cannot be held to be undue influence,               Coming to the cases of Election Tribunals, the

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             earliest case that needs consideration is  the               decision in Sardal Singh Caveeshar v.    Hukam               Singh  and Others (supra).  In that case,  the               Tribunal held               "It is not necessary that there should be  any               actual threat or physical compulsion held out,               but the method of inducement as may be adopted               should  convey  to  the  mind  of  the  person               addressed that non-compliance with the  wishes               of  the  person offering  the  inducement  may               result  in  physical  or  spiritual  harm   to               himself  or to any other person in whom he  is               interested.  Some fear of harm resulting  from               noncompliance with the request, thus, seems to               constitute  an  essential  element  in  "undue               influence".               On  behalf  of the petitioners,  emphasis  was               laid on the decision of the Election  Tribunal               in  Jujhar  Singh  v. Bhairon  Lall  &  Others               (supra).               In that case, it was held               "It  may  be  observed  that  an  attempt   to               interfere  by the method of compulsion is  not               necessary   and  that  even  the   method   of               inducement  may be sufficient, provided it  be               of  such  a powerful type as  would  leave  no               free,               335               will  to  the  voter in the  exercise  of  his               choice.   In  other  words,  actual   physical               compulsion  is  not necessary,  but,  positive               mental  compulsion may be enough to give  rise               to an undue influence."               After  expressing  this  view,  the   Tribunal               proceeded  to hold that the publication  of  a               particular  poster  amounted  to  exercise  of               undue   influence.   Referring  to   it,   the               Tribunal held :-               "The  poster was, therefore, clearly  designed               not only to catch voters for respondent No. 1,               but, also, to overawe voters, the majority  of               whom  were men of no better intelligence  than               ordinary illiterate villagers and to create  a               feeling  of  positive  prejudice,  if  not  of               terror  as  well, in their minds  against  the               petitioner." Reliance  was  placed  primarily on the last  part  of  this quotation  where  the Tribunal held that the creation  of  a feeling of positive prejudice in the minds of the voters can amount to undue influence.But this part of the  sentence has to be read in conjunction with the earlier part where  a clear  inference  was  drawn that  the  poster  was  clearly designed to overawe the voters.  This was the reason why the Tribunal held that the publication of the poster amounted to undue  influence, though, when defining undue  influence  in general, the Tribunal had clearly stated that the inducement must be of such a powerful type as would leave no free  will to  the  voters in the exercise of his choice.   In  stating this  principle, the Tribunal was clearly referring  to  the stage  when,  having  made his choice, the  voter  wants  to exercise  it in accordance with his free will and that  free will  is interfered with.  The Tribunal’s decision is  also, thus, in line with the view taken above. The next decision of a Tribunal, on which reliance has  been placed is in Radha Krishna Shukla and Another v. Tara  Chand

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Maheshwar and Others(1); but that decision appears to be  of no  help as, in that case, replying on a  English  decision, the  Tribunal  held  that, before a threat can  be  said  to amount to undue influence, the question must be put, was  it a  serious and deliberate threat uttered with the  intention of carrying it into effect, and proceeded to apply that test to the case before it.  The Tribunal, therefore, dealt  with a situation where there was clearly a threat to the  voters. but even the threat in question contained in the slogan  was held  not  to  constitute corrupt  practice,  as  there  was nothing  to  show  that the purpose of  the  slogan  was  to directly  or  indirectly interfere with  any  person’s  free exercise of his electoral right. In  Amir Chand v. Smt.  Sucheta Kripalani(2), the  Tribunal, after quoting the definition of "undue influence"  contained in (1) E.L.R. 378.                        (2) 18 E.L.R. 209. 336 section  123(2)  of the Representation of  the  People  Act, 1951, held               "The definition, no doubt, is in general terms               but it has an element of compulsion and it  is               an  abuse  of influence that  will  constitute               undue influence".               These  remarks also do not go contrary to  the               view taken above.               The  last  case that requires  notice  is  the               decision  of  a Tribunal in  Kataria  Takandas               Hemrai v. Pinto Frederick Michael(1) in  which               it was said               "A  candidate,  or as a matter  of  fact,  any               person  has every right to persuade people  to               vote in his favour at the election and in that               respect  he  is further entitled  to  be  even               critical  of  the policy and the acts  of  the               rival  party or its candidate and that way  it               may   as  well  be  legitimate  for  them   to               influence  the voters, provided they  did  not               transgress the legitimate bounds of criticism.               It is only undue influence which can be taken               exception  of, and, even though that  term  is               wide enough to cover any interference with the               exercise  of  the  electoral  right,  one  can               justifiably  call any act as  an  interference               only   when  it  has  in  it  an  element   of               compulsion so as to give way to free  thinking               in the exercise of the electoral rights of the               voters." This  case  also,  therefore,  envisaged  some  element   of compulsion  as  a  result  of which a  voter  is  unable  to exercise his electoral right in accordance with his judgment and  choice.  None of the decisions rendered so far  by  the Courts or Tribunals in India, thus, go contrary to the  view expressed  above and, if at all, a majority of them  are  in line with it.  It is in the light of this interpretation  of what  undue influence means that this Court has  to  proceed further to see which of the allegations made in the  present petitions  can  amount  to charges of  undue  influence  and whether  they  have been established so as  to  vitiate  the election. The principal charge of undue influence, on which a mass  of evidence  has  been led by the petitioners, relates  to  the publication  of  a pamphlet which contained  scurrilous  and vulgar  allegations  as to the personal  character  of  Shri Sanjiva  Reddy.  It is not necessary for me to set  out  the

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details of the contents of that pamphlet.  It is  sufficient to mention that, apart from allegations against Shri Sanjiva Reddy,  there were no ’other allegations in it  which  could amount  to a threat of any adverse consequence to any  voter in case he cast his vote in favour of Shri Reddy.  Even (1)  18 E.L.R. 403. 337 in  the  evidence, no witness stated that, as  a  result  of reading   this   pamphlet,  he   apprehended   any   adverse consequence either to himself or to anyone in whom he may be interested.   No  doubt,  some  witnesses  stated  that,  on reading the pamphlet, they felt that, if Shri Sanjiva  Reddy is elected as President, the Rashtrapati Bhavan may become a brothel;  but  that also does not amount to a  threat  of  a nature  which  would constitute undue indence  as  explained above.   Consequently,  the  publication  of  this  pamphlet cannot  constitute  undue influence, so that it  is  totally unnecessary to go into the question whether it was  printed, published  and  distributed  at all; if so,  by  whom,  and, further, whether such printing, publication or  distribution was or was not with the connivance of the respondent.  As  I have held earlier, in the Act there is no provision made for setting aside election on the ground of publication of false statements  as  to the personal conduct or  character  of  a candidate even if it affects his prospects in the  election, so that no evidence need have been taken with regard to  the printing,  publication or distribution of this  pamphlet  or with  regard  to the question as to  whether-there  was  any connivance by the respondent in its printing, publication or distribution.    The  challenge  to  the  election  of   the respondent based on this petition fails on this  preliminary ground,  However, I may add that, having had the benefit  of reading the judgment proposed to be delivered by my  brother Sikri,  J., on these issues, I agree with his assessment  of the  evidence  tendered  by the  parties  and  the  findings recorded  by him.  These findings of fact are to the  effect that, though the pamphlet was distributed by post and in the Central Hall of Parliament, it has not been proved that this distribution  was with the connivance of the  respondent  or that the distribution materially affected the result of  the election,  Consequently,  even on the  assumption  that  the publication   of  this  pamphlet  could   constitute   undue influence,  the election of the respondent is not liable  to be set aside. Apart  from this ground based on the pamphlet, a  number  of other  instances  of exercise of undue influence  were  also cited  and  relied  upon in these  two  election  petitions. These grounds have also been dealt with by my brother Sikri, J.,  and  some by my brother Mitter, J. I agree  with  their reasons and findings for holding that none of these  charges of  undue  influence  has  been  established,  so  that  the challenge to the election of the respondent 338 on   the  ground  of  exercise  of  undue  influence   fails altogether. I also agree with the order directing parties to bear  their own costs and the reasons for that order given by my brother Sikri, J., in his judgment. Issue No. 7 in Election Petition No. 1 of 1969, Issue No.  9 in  Election  Petition No. 4 of 1969, and Issue No.   11  in Election Petition No. 5 of 1969. As a result of the findings on other issues, the petitioners in none of these petitions are entitled to any relief, as no ground  has been made out for declaring the election of  the respondent as void.

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Mitter’  J. I have had the benefit of reading the  judgments of my colleagues.  The facts leading up to the  filing  of these petitions and the issues settled therein have been set out in the judgement of my learned colleague, Bhargava, J. I am  in agreement with him in his conclusion on issues  other than  issue No. 4 in Election Petitions 4 and 5 of 1969.   I regret  to have to differ from my other colleagues  on  this issue.   As  Petition  No.  5  is  more  comprehensive  than Petition  No. 41 prefer to refer to the allegations made  in Petition No. 5 alone.  Leaving out of account the  technical grounds  on  which  the election has  been  challenged,  the petitioners  have asked for a declaration that the  election be declared void on the following grounds : (a)that the offence of undue influence at the election had been  committed  by  the  returned  candidate   (hereinafter referred to as the ’respondent’) and by his supporters  with the connivance of the respondent as mentioned in paragraph 8 (a)  and  various sub-paragraphs of 13 (b) and  (c)  of  the Petition. (b)The  result of the election was materially affected  by reason  of  the offence of undue influence at  the  election having  been committed by persons mentioned in paragraph  13 of the petition. Undue influence is alleged to have been committed in diverse ways   on   various  persons  details  whereof   are   given hereinafter. Paragraph 13 of Petition No. 5 purports to give a summary of the  events which are alleged to have formed the  background in which the offences were said to have been committed.  Put briefly they are as follows 339 (1)After the demise of the late Dr. Zakir Hussain, the Prime Minister of India who was also an influential leader in the, Congress  Party  took the view that the respondent  who  was then  the Vice-President of India should be adopted  as  the Congress  candidate for the office which had fallen  vacant. This  was  not  acceptable  to all  her  colleagues  in  the Congress Parliamentary Board (hereinafter referred to as the ’Board’-a  body which had in the past selected  the  party’s candidate for the office of the President.  The  controversy which  thus  arose could not be settled because of  want  of unanimity  of opinion and the matter was left to be  decided at the Bangalore Session of the All India Congress Committee (hereinafter  referred to as the ’Committee’) to be held  in July 1969. (2)No consensus being attained at the meeting of the Board held inBangalore on July 12, 1969 the matter was  decided by voting. The  Prime  Minister and  Sri  Fakhrudin  Ali Ahmed  voted for Sri Jagjiwan Ram while Sri  Morarji  Desai, Sri  Y. B. Chavan, Sri S. K. Patil and Sri Kamaraj voted  in favour of Sri N. Sanjeeva Reddy. (3)The  decision  of  the Board greatly  upset  the  Prime Minister  and she then and there threatened the  members  of the  Board  that it would lead to serious  consequences  and that she should not have been over-ruled in that manner. (4)The  official  announcement  of the  selection  of  Sri Sanjeeva  Reddy as Congress candidate for the office of  the President  of  India was made on 13th July 1969 and  on  the same day the respondent who was then acting as the President of  India  called a Press conference at  Rashtrapati  Bhavan whereat  he announced his candidature for the office of  the President.   He issued a statement condemning the  selection of  Sri Sanjeeva Reddy as based on  partisan  considerations and  emphasised that a candidate for the highest  office  in the  land  should possess character,  integrity  patriotism,

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experience  and  a  good record of  service  and  sacrifice. According  to the petitioner there was insinuation that  the above requisite qualifications were lacking in Sri  Sanjeeva Reddy. (5)Being  upset  by the decision of the Board,  the  Prime Minister without any consultation with her colleagues in the Cabinet advised  the Acting President of  India  that  she would 340 withdraw the Finance portofolio from Sri Morarji Desai.  Her advise being accepted Sri Morarji Desai was relieved of  his portfolio.  She followed it Lip with the promulgation of the Bank Nationalisation Ordinance, a day before Parliament  was to  commence its session.  This Ordinance was signed by  the respondent acting as President. (6)On  the 22nd July 1969 the Prime Minister proposed  Sri Sanjeeva  Reddy  as  a  candidate  for  the  office  of  the President  of  India which was duly seconded by  Sri  Swaran Singh, a Cabinet Minister. (7)The  Prime  Minister however  expressed  difficulty  in issuing  a written appeal in support of the  candidature  of Sri Sanjeeva Reddy. (8)At a meeting of the Board held on August 6, 1969  there was  a joint address by the Prime Minister and the  Congress President,  Sri  Nijalingappa, in support  of  Sri  Sanjeeva Reddy’s  candidature.   At this meeting the  Prime  Minister stated that she stood by the decision of the party while  on his  part Sri Nijalingappa said that he had been in  contact with  leaders  of various opposition  parties,  namely,  the P.S.P.,  the  S.S.P., the Jan Sangh, B K.D. and  others  and that  the response in favour of Sri Sanjeeva Reddy had  been encouraging. (9)On August 9, an anonymous pamphlet in cyclostyled  form and  a printed pamphlet’ both without the name of  the  pub- lisher  or the printer were published by  free  distribution among   the  members  of  the  electoral  college  for   the Presidential  election.   In this the leaders of  the  party like  Sri  S.  K. Patil, Sri Atulya Ghosh  and  others  were castigated  as self-seekers who had tried to become  virtual dictators  and Sri Sanjeeva Reddy who had been  selected  by these people was described as a corrupt and immoral  person. The  pamphlet charged Sri Sanjeeva Reddy not only with  lack of  probity but as having been guilty of gross  misdemeanour towards  members of the other sex on a number of  occasions, culminating  in the statement that if he were to become  the President he would "turn Rashtrapati Bhavan into a harem,  a centre of vice and immorality." (10) Not satisfied with what the Prime Minister had said  at the   Congress  Parliamentary  meeting  on  August  6,   Sri Nijalingappa  requested  her specifically on  August  9  to, issue an appeal to the members of the party to vote and work for  the  success  ’of the Congress  candidate.   The  Prime Minister  avoided  doing this and merely  said  that  people should abide by the decision of the Board. 341 (11)This  was  followed by certain  correspondence  by  and between Sri Fakhrudin Ali Ahmed and Sri Jagjiwan Ram jointly on  the one hand and Sri Nijalingappa on the other, as  also by and between Sri Nijalingappa and the Prime Minister  from August  11 to August 15.  The correspondence showed an  open cleavage  between  the members of the party  and  it  became clear  that  the Prime Minister and her  colleagues  in  the Cabinet  and their supporters made the issue of the  success at the election by defeating the group which opposed her  at the meeting of the Board on July 12, as one of prestige  and

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political survival of the Prime Minister. Against the above background the offence of undue  influence was  said to have been committed by the  returned  candidate and  some  persons named and unnamed and  described  as  the workers and supporters of the respondent with his connivance by voluntarily interfering and attempting to interfere  with the free exercise of the electoral rights of the  candidates and  the  electors  in general and some  of  them  named  in particular. (a)According to paragraph 13 (b) (ii) of the petition Sri S. Nijalingappa,  Sri S. K. Patil, Sri K. Kamaraj, Sri  Morarji Desai  and Sri Y. B. Chavan, electors at the  election  were threatened  by  the  Prime  Minister on  the  12th  July  at Bangalore  with  serious  consequences with  the  object  of unduly  influencing  them so as to make  them  change  their decision to nominate Sri Sanjeeva Reddy as their  candidate. The threat is alleged to have been repeated subsequently  on a  number  of occasions.  It was also said to  be  a  direct attempt  ’Lo dissuade Sri Sanjeeva Reddy from standing as  a candidate. (b)In paragraph 13 (b) (iii) of the petition it was stated that  with the object of interfering with the free  exercise of   the  electoral  rights  of  Sri  Sanjeeva  Reddy,   Sri Nijalingappa,  Sri  Kamaraj  and  others,  electors  at  the election,  supporters of the respondent viz.,  Sri  Jagjiwan Ram, Sri Yunus Saleem, Sri Sashi Bhushan, Sri Krishna  Kant, Sri Chanresekhar, Sri Jagat Narain, Sri Mohan Dharia and Sri S.  M.  Banerjee  in particular  and  other  supporters  and workers  of the respondent in general, with the consent  and connivance of the respondent published by free  distribution a  pamphlet,  annexure A-38 to the petition,  in  Hindi  and English,  in cyclostyled form as well as in printed form  in which  serious  allegations,  as already  noted,  were  made amounting  to  the commission of undue  influence  upon  the persons named within the meaning of s. 171-C I.P.C. (c)According  to paragraph 13(b)(iv) of the petition  this pamphlet  was distributed from 9th to 16th August among  all the  electors of the electoral college for the  Presidential election.   It  was  distributed  in  the  Central  hall  of Parliament by the above- 342 named  persons  i.e. Sri Jagjiwan Ram and others.   A  large numbers  of electors were asked to read the contents of  the pamphlet, and were also asked to say whether they would vote for  such a debaucher and corrupt man.  An instance of  this is  given  in paragraph 13 (b) (iv) of the  petition  :  Sri Yunus  Saleem  approaching  Abdul  Gani  Dar,  one  of   the petitioners  and talking to him as above in the presence  of other members of Parliament. (d)The petitioner, Sri Abdul Ghani Dar, took strong excep- tion  to  what  was  going on and  wrote  a  letter  to  the respondent  endorsing a copy thereof to the  Prime  Minister and  Sri Humayun Kabir requesting the respondent to  condemn those  who  had  published the pamphlet and  make  a  public statement  dissociating  himself  from  and  denouncing  the publishers of the pamphlet. (e)The  respondent himself during his tour of the  country addressed  pressmen  and members of the  public  at  various places  and  repeatedly stated that a man of  character  and integrity should have been selected. (f)According to paragraph 13 (c) (i) the supporters of the respondent,  namely,  the  Prime Minister and  some  of  her Cabinet colleagues like Sri Jagjiwan Ram, Sri Fakhrudin  All Ahmed, Sri Yunus Saleem, Dr. Karan Singh, Sri Dinesh  Singh, Sri Swaran Singh, Sri I. K. Gujral, Sri S. S. Sinha, Sri  K.

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K.  Shah  and  Sri Triguna Sen misused  their  position  for furthering  the  prospects  of  the  returned  candidate  by contacting  a large number of electors on the telephone  and openly  telling them that if the electors did not  vote  for the respondent they would lose all the patronage which  they would  otherwise be given.  Electors were called by some  of the  abovenamed Ministers at their official  residences  and offices  in Delhi and undue influence brought to  bear  upon them by ordering them to vote for the returned candidate. (g)According to paragraph 13 (c) (iii) of the petition Sri Fakhrudin  Ali  Ahmed and Sri Yunus  Saleem  threatened  the Muslim  electors  that  Sri Sanjeeva Reddy  was  in  fact  a candidate  of the Jan Sangh Party and if he was elected  the fate  of the Muslim community in India would be  in  danger. This  undue  influence  was exercised over  all  the  Muslim electors  in the country and specially those in  Parliament. An  instance of this is given as having taken place  between Sri Yunus Saleem and Sri Abdul Ghani Dar. (h)The  workers  and supporters of the  respondent  became desperate  and demanded freedom of vote at the  election  so that  the  members  of  the  Congress  party  may  not  feel themselves bound by their party affiliation to vote for  Sri Sanjeeva Reddy.  It was stated that such a scare was created that the President of the U.P. 343 Congress  Committee,  Sri Kamlapati Tripathi and  the  Chief Minister Sri C. B. Gupta who had on August 6, 1969 addressed a  meeting  for solidly backing Sri Sanjeeva  Reddy  changed their  stand  and  on the 13th August,  1969  Sri  Kamlapati Tripathi also pleaded for freedom of vote. (1) According to paragraph 13 (c) (v) a scare was raised and undue  influence  exercised on the minds of the  members  of the,  Legislative Assembly of Bengal that if successful  Sri Sanjeeva  Reddy  would enforce President’s  Rule  in  Bengal wiping  off the United Front Government and the  legislative assembly.  According to paragraph 13(c)(vii) a similar scare was raised with regard to enforcement of President’s Rule in Andhra   Pradesh.   According  to  paragraph  13(c)(x)   the returned  candidate, the Prime Minister, Sri  Jagjiwan  Ram, Sri Fakhrudin Ali Ahmed and others entered into a conspiracy calculated to maintain the said Ministers in their office by the  allegation  that Sri Nijalingappa had entered  into  an arrangement with the leaders of the Jan Sangh and  Swatantra Party to oust the Congress Government from the Centre and to establish a Coalition Government. There  are other allegations of undue influence in the  said paragraph  but  as they were not pressed no  further  notice need be taken of them. In  paragraph  14  of the petition it was  stated  that  the result  of  the  election had been  materially  affected  by reason  of the commission of the offence of undue  influence at the election by the persons mentioned in paragraph 13  of the petition. In paragraph 16 of the petition it was stated that in.  case the Court came to the conclusion that the offences mentioned above,  though  committed  were  not  connived  at  by   the respondent, still the election ought to be declared void  as the  result of it had been materially affected by the  above practices. In  the counter affidavit filed by the respondent the  above charges   were  all  denied  and  the  correctness  of   the statements  disputed.  The respondent stated expressly  that for want of knowledge he could not traverse the  allegations in the various subparagraphs of paragraph 13 of the petition except  those which were made against him or imputed to  him

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and  alleged  to have been said or done at his  instance  or with  his connivance.  He stated categorically in  paragraph 25 of the counter affidavit that he had been carrying on his campaign single handed and that in between July 30 and  13th August  he  was  out  of Delhi  most  of  the  time  touring different parts of the country.  He disputed the correctness of  the charges made in the various sub-paragraphs of  para- graph 13 and denied that he had been contacted by the Prime 344 Minister at Delhi from Bangalore as alleged or that she  had suggested that as soon as an official announcement regarding the  selection  of  Sri Sanjeeva Reddy was  made  he  should announce   his  own  candidature  for  the  office  of   the President.  With regard to his press conference he said that he  had only outlined the necessary qualifications  for  the office  of the President and that his statement could by  no means  be  read  as an attack on  the  personal  conduct  or character of Sri Sanjeev Reddy.  He said further that he had approved of the taking over of the portfolio of Finance from Sri Morarji Desai on the 16th July on the recommendation  of the   Prime   Minister   but  the  signing   of   the   Bank Nationalisation  Ordinance  had  nothing  to  do  with   the Presidential election.  He stated in clear terms that he had no knowledge of any of the statements relating to  printing, publishing  and  distribution  of  the  unsigned   pamphlet, whether printed or otherwise and he completely dissociated himself  therefrom.  He denied the insinuation that  he  had anything to do with the Prime Minister’s alleged call for  a free vote to get support for himself.  He characterised  the allegations  regarding the publication and  distribution  of the  pamphlet  mentioned in the petition by anybody  as  his supporters  or workers with his consent and  connivance,  as reckless,  wild  and false.  He denied having  received  any letter  from  Sri  Abdul  Ghani Dar  as mentioned  in  the petition or any copy of the pamphlet.  He denied ever having hinted in any of his public addresses anything derogatory to the  personal  conduct or character of Sri  Sanjeeva  Reddy. With regard to paragraph 13(c)(i) of the petition he  stated that he was not aware of any of the persons having acted  in the  manner  alleged  therein.   With  regard  to  paragraph 13(c)(ii)  and  (iii)  as also 13(c)(x)  he  disclaimed  all knowledge. On  21st January 1970 the Court directed the petitioners  to furnish several particulars of the petition mostly  relating to  paragraph  13(b)(iii), 13(b)(iv), 13(c)(i)  and  13  (c) (iii).   In  compliance with the same the  petitioners  gave inter alia the following particulars. With regard to paragraph 1 3 (b) (iv) they stated "that  the persons who had distributed the pamphlet between the 9th and 16th August 1969 were already mentioned in paragraph  13(b)- (iii)  and  some other persons who bad done  so  were  being mentioned  in  particulars furnished to paragraph  1  3  (b) (iii),  namely,  Sri Maulana Ishaq Sambli,  Sri  Akbar  Ali, M.P., Sri Bhupesh Gupta M.P. and Sri Randhir Singh M.P. With regard to the place and date on which the persons  mentioned in paragraph 13(b)(iii) were alleged to have distributed the pamphlet  it  was  said that on 9th August  1969  Sri  Sashi Bhushan  M.P.  and  Sri  Krishan  Kant  M.P.  had   together distributed copies of the said pamphlet to various  members of Parliament at the latter’s residence 345 in  New Delhi.  It was also said that the pamphlet had  been distributed  by leaving the, same at the residence  of  nine other electors at their residence on 9th August late in  the evening.  Little attempt was made to prove these statements.

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The  names of 18 persons were given as having  received  the said  pamphlet at their residence by post in various  places in  India.   They  were  all  members  of  the   Legislative Assemblies of Uttar Pradesh as also of Madhya Pradesh, Bihar and Chandigarh.  Of these some but not all were examined  in court. Further, with regard to distribution of the pamphlet it  was said that the persons already mentioned in paragraph 1 3 (b) (iii)  as also those mentioned in reply to  the  application for   particulars   given   above   distributed   the   same individually  and  in  groups of two or  more  on  all  days between 11th and 15th August to the general body of electors frequenting the Central hall of Parliament.  The names of 29 members  of  Parliament were given as th recipients  of  the pamphlets in the above manner.  Further groups of M.Ps. were mentioned  as having distributed the said pamphlets to  some or  other of the petitioners on the 11th August 1969 in  the Central  hall of Parliament.  With regard to  the  telephone calls  by  Ministers  exercising undue  influence  over  the members of the electoral college referred to in paragraph 13 (c)  (i)  about  30  M.Ps. were  named  as  having  been  so contacted   by  11  named  Ministers  including  the   Prime Minister,  Sri  Fakhrudin Ali Ahmed, Sri Jagjiwan  Ram,  Sri Yunus  Saleem and Sri I. K. Gujral.  With the  exception  of three of them, namely,   Sri Fakhrudin Ali Ahmed, Sri  Yunus Saleem  and I K Gujral, no attempt was made to  substantiate the  above.  I do not think it necessary to dilate  more  on the  correctness  of  the particulars  and  the  attempt  to establish  the  same except to say that. little  effort  was made to establish the allegations which were verified either as  true to the knowledge of the deponent, Sri  Abdul  Ghani Dar  or as being based on information received by  him  from the persons named, some of whom were called as witnesses but did not support the version of Sri Abdul Ghani Dar as  given in the particulars.               For  the  sake of convenience issue No.  4  is               reproduced below Issue 4 in Election Petitions               Nos. 4 and 5.               (a)Whether  all or any of  the  allegations               made  in paragraphs 8(e) and 13(a) to (in)  of               the petitions constitute in law an offence  of               undue  influence  under  s.  18(1)(a)  of  the               Presidential  and Vice-Presidential  Elections               Act of 1952 ?               (b)Whether the said allegations made in  para-               graphs  8 (e) and 13 (a) to (m) are  true  and               proved?               (c)In the event of these allegations  being               proved constituting undue influence, whether               346               (i)   the returned candidate has committed the               offence of undue influence ?               (ii)Whether  undue influence was,  committed               by his workers and if so, with his  connivance               ? and               (iii)Whether undue influence was committed by’               others  without  his  connivance  and  if  so,               whether  that  has  materially  affected   the               result. of the election ?               Before  going into the evidence  adduced  one               must  note the provisions of the law  relating               to the election of the President of India  and               in  particular  the grounds on which  such  an               election  can be challenged and  then  briefly               consider  the  history  of the  law  of  undue

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             influence generally and examine the  statutory               provisions  of  the  law  of  undue  influence               applicable  to  elections and  the  exposition               thereof in India.               Art. 71 (1) of our Constitution provides  that               all  doubts and disputes arising out of or  in               connection with the election of a President or               Vice-President  shall  be  enquired  into  and               decided  by the Supreme Court  whose  decision               shall  be final.  Sub-cl. (3) of that  article               lays down that :               "Subject    to   the   provisions   of    this               Constitution, Parliament may by law  regulate,               the  matter relating to or connected with  the               election of a President or Vice-President."               By Act 31 of 1952, the Presidential and  Vice-               Presidential   Elections   Act    (hereinafter               referred  to  as the  ’Act’)  Parliament  made               provisions for the conduct of Presidential and               Vice-Presidential     elections.      Disputes               regarding elections are dealt with in Part III               of  the Act containing sections 13 to 20.   S.               16 of the Act lays down the reliefs which  may               be claimed by a petitioner and s. 18 specifies               the  grounds for declaring the election  of  a               returned  candidate to be void.  The  relevant               part thereof reads as follows                "18 (1) If the Supreme Court is of opinion-               (a)that  the  offence of bribery  or  undue               influence  at the election has been  committed               by  the  returned candidate or by  any  person               with the connivance of the returned candidate;               or               (b)that the result of the election has been               materially affected-               (i)by reason that the offence of bribery or               undue  influence  at  the  election  has  been               committed by any               347               person  who is neither the returned  candidate               nor a person acting with his connivance;               (c)               The  Supreme Court shall declare the  election               of the returned candidate to be void.               (2)For  the purposes of this  section,  the               offences of bribery and undue influence at  an               election  have the same meaning as in  Chapter               IX-A  of  the  Indian Penal Code  (Act  45  of               1860)."               Section  21 contained in part IV provides  for               the making of rules to give effect to the Act.               The  provisions  in the Constitution  and  the               Presidential  and Vice-Presidential  Elections               Act  of 1952 and the Rules  framed  thereunder               form   a  complete  code  relating   to   such               elections   and  all  doubts   and.   disputes               regarding the validity of such elections which               can  be adjudicated upon by the Supreme  Court               must   arise  within  the   limits   specified               thereby.               Chapter  IX-A of the Indian Penal  Code  which               deals with offences relating to elections  was               introduced  by the Indian  Elections  Offences               and  Inquiries Act, 39 of 1920, section 2.  S.               171-A  in  that part  defines  candidates  and

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             electoral right.  Bribery is defined in s. 171               B.  Undue influence at elections is covered by               s. 177-C which runs as follows               "(1)   Whoever   voluntarily   interferes   or               attempts  to interfere with the free  exercise               of any electoral right commits the offence  of               undue influence at an election.               (2)Without  prejudice to the generality  of               the provisions of sub-section (1), whoever-               (a)   threatens any candidate or voter, or any               person  in  whom  a  candidate  or  voter   is               interested, with injury of any kind, or               (b)   induces   or   attempts  to   induce   a               candidate  or voter to believe that he or  any               person in whom he is interested will become or               will   be   rendered  an  object   of   Divine               displeasure or of spiritual censure,               shall  be  deemed to interfere with  the  free               exercise  of  the  electoral  right  of   such               candidate or voter, within the meaning of sub-               section (1)               348               (3) 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               section."               Under s. 171-F whoever commits the offence  of               undue. influence or personation at an election               shall be punished with imprisonment of  either               description  which may extend to one  year  or               with line or with both.  Under s. 171 G :               "Whoever  with intent to affect the result  of               an  election makes or publishes any  statement               purporting to be a statement of fact which  is               false and which he either knows or believes to               be  false and does not believe to be true,  in               relation   to   the  personal   character   or               conduct,-of  any candidate shall  be  punished               with fine."               It will be noted that the words used in sub-s.               (1)  of s. 171-C are very wide and sub-s.  (2)               though  illustrative  of sub-s. (1)  does  not               purport to comprehend all the facets of  undue               influence  under sub-s. (1). The statement  of               objects  and reasons of the Act of  1920  make               the  intention of the legislature  clear.   It               reads :               "The  second sub-clause is merely  explanatory               of  the general definitions in the first  sub-               caluse and does not restrict the generality of               the words used there.  We have considered  the               criticisms   of  this  clause  based  on   the               generality  of the words employed but  we  are               satisfied   that  any  attempt   at   specific               enumeration  would be open to serious  danger               of  loopholes  in  what we regard  as  a  most               salutary provision." On  the facts of this case the vital question before us  is, whether  the  mere publication of a false  statement  highly derogatory  of  the  personal  conduct  or  character  of  a candidate  or  the dissemination of  a  scurrilous  pamphlet depicting  a  candidate as one of lecherous  character  will fall  under  sub-s. (1) of s. 171-C or whether in  order  to

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prove the commission of the offence the election  petitioner must  go further and establish that there was an attempt  on the  part of some persons to interfere with the free  choice of  a candidate on the part of the voters by making  use  of the pamphlet so as to deflect their will and restrict  their choice to persons other than the one defamed. Undue influence is an old and well known English legal  con- cept.   Before the expression came to be used in  litigation over  elections it had acquired a definite  significance  to English  lawyers although its exposition in common  law  was somewhat  different from that which the equity lawyers  gave it.  The concept was                             349 developed  along  a  particular line by  Judges  in  England trying election disputes and our Indian law has by and large followed  the same pattern.  According to Anson  on  English law of Contract (22nd Edition) Chapter VII :               "A  contract which has been obtained by  means               of  pressure  or intimidation is  voidable  at               common  law  or  in equity on  the  ground  of               duress.   At  common  law  the  definition  of               duress  is  a narrow one, and  only  the  more               extreme  forms of coercion will  suffice.   In               equity,  however, owing to the development  of               the doctrine of constructive fraud, a contract               may  be  rescinded in cases where  common  law               provides no remedy....... At common law duress               consists  in actual or threatened violence  or               imprisonment;  the subject of it must  be  the               contracting   party  himself,  or  his   wife,               parent, child, or other near relative; and  at               it  must  be  inflicted or  threatened  to  be               inflicted by the other party to the  contract,               or  at least it must be known to him  when  he               entered into the contract." (see p. 243).               The learned author goes on to say at pages 244               and 245               "Equity,   on  the  other  hand,  will   treat               contracts  as  voidable when  they  have  been               induced by forms of pressure or coercion which               do not amount to duress at common law..... The  term ’undue influence’ has sometimes been used  by  the Courts to describe the equitable doctrine of coercion  which has  just  been referred to, but it also  includes,  and  it would perhaps be convenient to confine it, forms of pressure much   less  direct  or  substantial  than   those   already discussed.   It  may arise where the parties  stand  to  one another  in a relation of confidence which puts one of  them in a position to exercise over the other an influence  which may  be  perfectly  natural and proper  in  itself,  but  is capable of being unfairly used. * If it can be shown that one party exercised such  domination over the mind and will of the other that his independence of decision was substantially undermined, the party whose  will was  overborne will be entitled to relief on the  ground  of undue influence. There  is  no  need for any special  relationship  to  exist between the parties, although, of course, it may do so.  The mere  fact that domination was exercised is  sufficient;  no abuse of confidence need be proved." According to Cheshire and Fifoot on the Laf of Contract (7th Edition) p. 264 350               "The  Courts  have never attempted  to  define               undue  influence  with precision, but  it  has

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             been  described as "some unfair  and  improper               conduct,  some  coercion  from  outside,  some               overreaching,  some  form  of  cheating,   and               generally,  though not always,  some  personal               advantage obtained by" the guilty party."               So  far  as the English Law  of  Elections  on               which  principally our  election  laws   are               based-is  concerned, reference may be made  to               some  of  the  well-known text  books  on  the               subject.   According lo Rogers  Parliamentary               Elections and Petitions, 20th Edn.  Chapter XI               p. 325 :               "In  England  corruptly influencing  a  voter,               whether by the more direct and grosser form of               treating or the more indirect add subtler form               of  wagers was always an offence as a  species               of bribery; but unduly influencing a voter was               not,  before  the 17 and 18 Vict. c.  102,  an               offence  in  the  strict sense  of  the  word,               although  its prevalence is mentioned in               many resolutions of the House of Commons, and               many statutes have been passed to prohibit the               evil  in particular instances; and although  a               vote unduly influenced is void at common  law,               and will be struck off on a scrutiny."               The learned author goes on to add               "As   early  as  3  Edw.  1,  c.5,  which   is               declaratory   of  the  common,law,  thus,   in               affirming  the vital principles of freedom  of               election, said, "Because election ought to  be               free,  the  King commanded,  upon  forfeiture,               that no man by force of arms, nor by malice or               menacing,  shall  disturb  any  to  make  free               election."               Rogers  notes  that in the case  of  Lichfield               (1869) 1 O’M & H. 25, Willes, J. defined undue               influence as               "using any violence or threatening any damage,               or resorting to any fraudulent contrivance  to               restrain the liberty of a voter, so as  either               to  compel  or  frighten him  into  voting  or               abstaining from  voting  otherwise  than  he               freely wills."               In  the same case the learned Judge added  (at               p. 28)               "The  law  cannot strike at the  existence  of               influence.  The law can no more take away from               a  man,  who  has property, or  who  can  give               employment,   the  insensible   but   powerful               influence he has over those who he can benefit               by the proper use of his wealth, than the law               351               could take away his honesty, his good feeling,               his  courage,  his good looks,  or  any  other               qualities which give a man influence over  his               fellows-  It  is the abuse of  influence  with               which  alone  the  law  can  deal.   Influence               cannot be said to be abused because it  exists               and  operates.  It is only abused in cases  of               this kind, where an inducement is held out  by               a  promise.............. to induce  voters  to               vote or not to vote at an election."               This  case  was decided upon 17 and  18  Vict.               c.102, section 5.               According  to  Rogers the  following  are  the

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             principal kinds of improper influence :               1.    The  use of open force or  violence,  or               the threat thereof.               2.    The  infliction of any temporal  injury,               damage, harm or               loss or by the threat thereof.               3.    The infliction of any spiritual  injury,               damage,  harm  or  loss,.  or  by  the  threat               thereof.               4.    The  impeding etc. the due  exercise  of               the  franchise etc. by abduction,  duress,  or               any fraudulent device or contrivance.               Section  101  of  the  Representation  of  the               People  Act, 1949, appears to be  that  latest               codification of the English law on the subject               of undue influence.  Under sub-s. (1) a person               shall  be guilty of corrupt practice if he  is               guilty  of  undue influence.   Sub-s.  of  the               section  is  in two parts.  Under  cl.  (b)  a               person shall be guilty of undue influence  if,               by abduction, duress or any fraudulent  device               or  contrivance,  he impedes or  prevents  the               free  exercise of the franchise of an  elector               or  proxy for an elector, or thereby  compels,               induces  or prevails upon an elector or  proxy               for  an elector either to vote or  to  refrain               from voting.               Under  s. 91 (1) of the Representation of  the               People Act, 1949               "Any  person who, or any director of any  body               or  association  corporate  which,  before  or               during an ’election, shall, for the purpose of               affecting  the return of any candidate at  the               election, make or publish any false  statement               of fact in relation to the personal  character               or conduct of the candidate shall be guilty of               an  illegal practice, unless he can show  that               he  had reasonable grounds for believing,  and               did believe, the statement to be true 11--L308Sup. CI/71 352 It  will  thus be noticed that in England the law  of  undue influence  as  regards elections is somewhat  akin  to  that branch  of the law as expounded by the courts of equity  and both  have  a common facet, namely, the  inducement  of  a person  to act otherwise than under his free will by  resort to any fraudulent device or contrivance. Coining  now  to our Indian law, s. 16 of the  Contract  Act which  came  on the statute book in 1872 laid down  by  sub- s.(1) that "A  contract  is said to be, induced  by  "undue  influence" where the relations subsisting between the parties are  such that  one  of the parties is in a position to  dominate  the will of the other and uses that position to obtain an unfair advantage over the other." In  substance  our  law of contract  with  regard  to  undue influence stresses  upon  the domination of  the  will  by another  to  obtain  an unfair  advantage  by  the  exercise thereof.   So  far  as our election  law  is  concerned  the earliest attempt seems to have been the codification in 1919 under  Chapter  IX-A  of the Indian Panel  Code.   This  was followed  by the Government of India (Provincial  Elections) Corrupt  Practices and Election Petitions Order  1936  which will  be shortly described as the Corrupt  Practices  Order. This  law  was passed after the Government of India  Act  of

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1935.   Corrupt practice in relation to an election  by  the members  of  a  Provincial  Legislature  to  fill  seats  in Provincial  Legislative Council, meant one of the  practices specified  in  Parts I and II of the First Schedule  to  the Order,  and in relation to any other election, meant one  of the practices specified in Parts I, II and III of that Schedule.   Part  I  of the  First  Schedule  defined  undue influence in clause 2 in the following terms :- "Undue  influence,  that is to say, any direct  or  indirect interference  or  attempt  to interfere on  the  part  of  a candidate  or  his agent, or of any other  person  with  the connivance  of  the candidate or his agent, with  the  free exercise of any electoral right Provided that- (a)  without  prejudice to the generality of the  provisions of this  paragraph,  any such person  as  is  referred  to therein who- (i)  threatens  any candidate or elector, or any  person  in whom  a candidate or elector is interested, with any  injury of any kind; or (ii) induces or attempts to induce a candidate or an elector lo believe that he, or any person in whom he is  interested, will 353 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 that  candidate  or elector within the meaning of this paragraph (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 paragraph." It  will be noticed that there is a good deal of  similarity between  this provision and that in S. 171-C of  the  Indian Penal  Code.   There  is greater  similarity  between  undue influence as defined in S. 171-C and the definition of  that expression  in  s. 123 of the Representation of  the  People Act, 1951-another Parliamentary Act.  Under the Act of  1951 undue influence is defined as follows, in s. 123 (2) "Undue  influence,  that is to say, any direct  or  indirect interference  or attempt to interference 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               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 an elector or               any  person in whom a candidate or an  elector               is   interested,  with  injury  of  any   kind               including    social    ostracism    and    ex-               communication  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 :               (b)   a  declaration  of public policy,  or  a               promise of public action, or the mere exercise

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             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." This  Act contains a further provision in cl.(4) of  s.  123 laying  down  that "the publication by a  candidate  or  his agent or by any 354 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 conduct or  character  of  any candidate  in relation to the candidature or withdrawal,  of any  candidate being a statement reasonably calculated  to’- prejudice  the  election of that candidate at  an  election" will  be deemed to be a corrupt practice for the purpose  of that Act. It  will  be noted that under sub-s. (4)  publication  of  a false   statement  relating  to  the  personal  conduct   or character  of  a candidate only becomes a  corrupt  practice when it is done by a rival or his agent or any other  person with his consent.  However opprobrious such publication  may be it is not an electoral offence under the Act of 1951  and would not be a ground for setting aside an election although it  might become culpable under S. 499 of the  Indian  Penal Code  and as such punishable with simple imprisonment for  a term  which  may extend to two years or with  fine  or  with both.   Clearly such publication per se would not amount  to any   direct   or  indirect  interference  or   attempt   to interference with the free exercise of an electoral right so as  to  attract s. 123(2) of the Act.  Even  in  England  it would be an illegal practice within the meaning of s. 91 (1) of the Representation of the People Act.  By itself it would not  make  the publisher of the statement  guilty  of  undue influence.   While enacting the statute of 1952  the  legis- lature  had  before it the electoral  offences  codified  in Chapter  IX-A of the Indian Penal Code.  It  recognised  the necessity  of  a  law prescribing for the  annulment  of  an election  only if bribery or undue influence  was  committed thereat.  Such offence if committed by a candidate or by any person  with  his connivance was enough- for  declaring  the election  void.  But if committed by any person who was  not the  returned candidate nor one acting with his  connivance, it  was not to affect the election unless the result  of  it had been materially affected by such malpractice.  So far as this  branch  of the law is concerned  the  only  difference between the Act of 1951 and the Act of 1952 lies in the fact that  under the latter Act corrupt practices of  bribery  or undue influence by one who was not, a party to the  election or  his  agent  are  also brought in.  But  the  nature  and character of undue influence under both the Acts remains the same.  I see no reason for taking a view that what would not be  undue  influence under the Act of 1951  can  become  one under the Act of 1952. If publication of defamatory matter relating to a  candidate was  to be treated as a direct or indirect  interference  or attempt to interfere with the free exercise of any electoral right under the wide words of S. 171-C (1) there would have been  no  occasion  for the legislature to  provide  for  it separately under S. 123 (4) of the 355 Act  of  1951.  In my view the same position,  would  obtain under  the  Act  of 1952 and before  any  publication  of  a defamatory matter relating to a candidate can be treated  as commission  of the offence of undue influence there must  be

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some  overt  act in addition to  the  mere  publication-some attempt  or  persuasion of, a voter to  restrain  the  free, choice  of a candidate before the law of undue influence  is excited. The  above  proposition  may be illustrated  as  follows  If anonymous  posters  containing  defamatory  matter  about  a candidate’s  personal  conduct  or  character  were  to   be displayed  in prominent places in the constituency so as  to attract  the  notice of electors, it would come  within  the mischief of S. 171-G of the Indian Penal Code but would fall short  of  exercise of undue influence under s.  171-C.   An attempt  to  denigrate a person in such a way could  not  be said to be directed to thwarting the free choice of electors inasmuch as the poster by itself would give no indication as to the source of information on which the, imputations  were made or of their authenticity.  But if an unsigned  pamphlet containing  matter  defamatory of the  personal  conduct  or character  of  a  candidate be pressed  personally  upon  an elector  by  another with an attempt to  make  the  receiver believe  that there was some basis for the charges  levelled against  the  candidate, the person receiving  the  pamphlet would  be  likely to give credence to the  imputations  made therein  and  would thus be subject to a  restraint  on  his franchise.   As. a mere attempt to interfere with  the  free exercise  of  an  electoral right  is  sufficient  for  the, purpose  of S. 171-C(1) of the Indian Penal Code it  is  not necessary   to  prove  positively  that  there  was   actual domination  of or overbearing of the will of the elector  to lead  to the inference that undue influence was exercised  : it  would  be  sufficient to Show that  was  an  attempt  to pervert  the  unfettered  choice of a  voter  by  resort  to illegitimate  persuasion inter alia by pressing upon  him  a document containing such a false statement of fact  relating to the conduct or character of a candidate as would make any right thinking man shrink from selecting him and; shown  him in the process of selection of a candidate.  In such a  case it  would not be difficult" to hold that there was ’in  fact malice  behind  the  publication  and  the  adoption  of   a fraudulent  device calculated to defeat or deflect the  will of the elector.  In this view of the matter the  publication of  a  false statement of fact relating to  the  conduct  or character  of a person coupled with an attempt  to  persuade electors by such publication would attract the operation  of s.  171C(1)  of the Indian Penal Code.  It would  also  fall within  the definition of undue influence in S. 123  (2)  of the  R.P. Act of 1951 and the definition given in cl.  2  of the Corrupt Practices Order, 1936. 356 I  may now proceed to note some of the reports  of  Election Commissions  under the Corrupt Practices Order  1936  before examining mere recent decisions.  In Amritsar City (Mohamma- dan)   Constituency  Sh.Mohammad  Sadiq  v.  Dr.   Saifuddin Kitchlow(1) before the Second Election Petitions  Commission Bench the scope of undue influence under the first  Schedule to the Corrupt Practices Order, 1936 came to be  considered. It  was  the case of the petitioner  that  one  Faroze-u-Din Ahmed by administering oaths to his audience which  included numerous  voters,  restricted their choice to  the  returned candidate  Dr. Kitchlew, under pain of  spiritual  penalties and thereby interfered with the free exercise of their right to vote.  Counsel for the respondent argued that the element of  compulsion  was an essential ingredient of  the  corrupt practice  of undue influence and contended that it  was  not even  alleged  that Feroze-ud-Din Ahmed  had  compelled  his audience to take the alleged oaths.  The Commissioners found

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that               " such oaths were taken and that Feroze-ud-Din               Ahmad  also  reminded  his  audiences  of  the               penalties provided for breach of such oaths by               their  religion.   It  is  evident  that   the               element of compulsion was present in the minds               of  those voters who had taken oaths  to  vote               for Dr. Kitchlew at the time when they  marked               their   ballot-papers;  they  had   given   an               undertaking, supported by the sanction of loss               of  faith,  which inevitably leads  to  divine               displeasure  and spiritual censure, that  they               would  vote for Dr. Kitchlew and for no  other               person."               The  Commissioners however could not  find  in               the definition of ’ undue influence’ any basis               for  the proposition that unless  Ferozeud-Din               Ahmad  had  compelled  voters  to  take  these               oaths, the offence of undue influence was  not               complete observing :               "That definition, as is obvious, gives a  very               wide   scope   of  the   meaning   of   "undue               influence..........   Evidently  the   offence               includes  such  interference  or  attempt   to               interfere  by  any method,  and  one  possible               method  is the method of inducement, which  is               proved  to have been practised in  this  case.               In  fact  the  word ’induces’  occurs  in  the               second  proviso  to the definition  of  "undue               influence’ reproduced above.  Further, we have               seen  that  the  inducement  was  of  a   very               powerful   type,  supported  as  it   was   by               references to the demolition of the Shahidganj               Mosque,  and  the  deaths  of  Muslims   which               resulted  from the firing during  the  ensuing               disturbances  in regard to which  the  feeling               among   the  rank  and  file  of  the   Muslim               community is undoubtedly very deep. " (1)  Doabia’s Election Cases, Vol.  It, page 117. 357 In Amritsar City (Mohammadan) Constituency Case No. 2(1) the meaning  of  undue influence under the  Corrupt  Practices,’ Order,  Order,  1936 again fell to be considered.   There  a question arose as to whether certain news items and  posters in  which  the unsuccessful person was wrongly  and  falsely described  as  standing as a candidate on  a  Muslim  League ticket  would  fall within the mischief of  the  Order.   In their report the Commissioners stated (at p. 157) :               "There   is  no  proper  evidence  of   actual               interference  before  us, and as  regards  the               attempt,  we  have  to see if  there  was  the               deliberate  intent to mislead voters and  thus               make them exercise their electoral right under               the  wrong impression that the respondent  had               been  set  up  as a candidate  by  the  Muslim               League."               The case for the petitioner there was that one               Maulana  Zaffar Ali Khan by making an  appeal               to  the  voters restricted  their  choice  to,               Mohammad   Sadiq  under  pain   of   spiritual               penalties  and  even  otherwise  and   thereby               exercised undue influence in the free exercise               of their right to vote.  In the opinion of the               Commissioners  an inducement could not  amount               to  undue  influence unless it was of  such  a

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             powerful  type as would leave no free will  to               the  voter in the exercise of his choice.   In               Lyllapur  and Jhang General Constituency  Case               No. 2 (2) one of the questions canvassed  was               whether  fraud was a corrupt  practice  within               the meaning of Government of India (Provincial               Legislative Assemblies) Order 1936,  paragraph               4-B.  According to the Commissioners fraud may               in  some  cases come within the ambit  of  the               corrupt    practice   of   undue    influence.               Referring to the definition of undue influence               in the said order the Commissioners observed :               "It  is obvious that the definition  of  undue               influence is very widely worded and covers all               kinds  of fraudulent acts or omissions  which,               in  any way directly or  indirectly  interfere               with the exercise of any electoral right.  The               definition  in  the English  Act  specifically               makes  a  fraudulent device or  contrivance  a               type of undue influence.  As devices based  on               fraud  which  interfere with the  exercise  of               electoral right, are not mentioned by name  in               the  definition  given in Schedule 1,  it  has               been  intentionally  framed  in  very  general               terms  so  as  to  cover  all  kinds  of  such               devices." (1)  The  Indian Election Cases by Doabia, Vol. 2  page  150 dated 28th September, 1938. (2) Doabia’s Election Cases, Vol. II p. 243 at 256. 358 Jujhar Singh v. Bhairon Lall & others(1) was a case in which there  were two candidates, one a jagirdar and the  other  a Congressman.  The  Congress  committee  published  a  poster containing  the picture of a tenant tied up to a tree and  a well  dressed jagirdar asking another who had a waving  whip in  his hand, to flog the tenant and the tenant’s  wife  was shown  lying prostrate on the ground.  It was held that  the publication of the poster amounted to the exercise of  undue influence on the voters who were mostly illiterate villagers and  the case fell under S. 123(2) of the Representation  of the People Act. In  R. K. Shukla v. T. C. Maheshwar(2) one of the  questions before  the Election Tribunal was whether the shouting of  a slogan  in various villages and bazars that people who  vote in  a particular way would be given a shoe-beating  amounted to exercise of undue influence.  Relying on the observations of Norfolk (Northern case (1 O’M & H. 236 at 242)that before a  threat can be considered to amount to undue influence,  a question  must  be  put, ’was it a  serious  and  deliberate threat uttered with the intention of carrying it into effect ?’ Applying that test, the Election Commissioners held  that they had no difficulty in coming to the conclusion that  the shouting  of the slogan could not amount to undue  influence inasmuch  as  it was shouted for several months  before  the election  was held and not a single instance was brought  on record  in  which  the threat contained in  the  slogan  was carried  out.   On the facts of the case, it was  held  that none  of the parties could be said to have  uttered  slogans for the purpose of directly or indirectly interfering  with, any   person’s  free  exercise  of  his   electoral   right. Reference  was  also  made to the fact  that  there  was  no evidence  that  any complaint even had been made  about  the shouting of the slogans to the agents of the petitioners. In  Amir Chand v. Sucheta Kripalani(3) one of the  questions which  engaged  the attention of the Election  Tribunal  was

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whether a false statement in a daily newspaper to the effect that the respondent Smt.  Sucheta Kripalani was going to  be taken as a Rehabilitation Minister in the forthcoming  Union Cabinet  after the election thereby giving currency  to  the rumour amounted to undue influence as contemplated under s. 123  (2) of the Representation of the People Act.  The  view taken by the Tribunal was that (p. 252): "The  so-called  device namely, that some one  from  Lucknow sent  the news as a rumour or opinion of the member  of  the Congress High Command, does not fall within the ambit of the definition". (1) 7 E.L.R. 457.        (2) 12 E.L.R. 378 at 415. (3)  18 E.L.R. 209. 359 ins.  123(2). It was said that though the definition was  no doubt  in general terms it had an element of compulsion  and it  was  an abuse of influence that would  constitute  undue influence. In Kataria Takandas Hemraj v. Pinto Frederick Michael(1)  an appeal  was  made  to Maharashtrians not  to  vote  for  the Congress  Government  had  resorted to  firing  and  killing Maharashtrian  leaders for demanding a separate  Maharashtra State  and photographs of martyrs who had been  killed  were attached  to  the appeal and it was even  stated  that  the ballot  box of the Congress Party was filled with the  blood of  Maharashtrian  martyrs.  Negativing the  plea  of  undue influence  sought  to  be raised in the  above  appeal,  the Tribunal   stated  that  although  the   expression   ’undue influence’  was wide, enough to cover any interference  with the  exercise  of  the electoral right, there is  in  it  an element of compulsion so as to give way to free thinking  in the exercise of the electoral right of the voters. In Radhakrishna Misra v. Nityananda Mahapatra(2) a case,  of undue influence was sought to be made out inter alia by  the publication  of  a  booklet which had in its  cover  page  a photograph  of one S. who had been killed during the  police firing  with the caption "Do not vote for the  Congress  who had  killed S." In the judgment in appeal from the  Election Tribunal, Barman, J. remarked (at p. 217)               "A  voter must be able to freely exercise  his               electoral  right.   He must be a  free  agent.               All  influences are not necessarily  undue  or               unlawful.   Legitimate exercise of:  influence               by a political party or association or even an               individual  should not be confused with  undue               influence.  Persuasion may be quite legitimate               and  may be fairly pressed on the voters.   On               the   other   hand,   pressure   of   whatever               character,   whether  acting  on  the   fears,               threat,  etc. if so exercised as to  overpower               the  volition without convincing the  judgment               is  a  species of restraint  which  interferes               with  the  free exercise of  electoral  right.               In.  such an atmosphere, the free play of  the               elector’s  judgment, discretion or  wishes  is               overborne  and  this  will  constitute   undue               influence  though no force is either  used  or               threatened.  It is not necessary to  establish               that  actual  violence had been used  or  even               threatened.   Methods of inducement which  are               so  powerful as to leave no free will  to  the               voter  in  the  exercise of  his  choice,  may               amount, to undue influence.  Imaginery  terror               may  have been created sufficient  to  deprive               him of free agency."

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             (1)   18 E.L.R. 403.               (2) 19 E.L.R. 203.               360               With  regard to the poster with  the  picture,               the learned Judge said (at p. 219) :                "It  was  an  artful  device  to  catch   the               imagination of the voters.  It terrorised  the               voters and was likely to create in their  mind               a  feeling of terror, fear, hatred  or  strong               prejudice  against  the Congress......  It  at               least  did create or was likely to  create  or               had  the  tendency  to create  terror  and  an               unknown  fear in the mind of the voters.   The               picture  of  the  dead boy  with  the  caption               frightened   the  voters  or  was  likely   to               frighten  them and it was intended to  overawe               voters  which  interfered  or  was  likely  to               interfere  or  had the tendency  to  interfere               with  the free exercise of electoral right  of               the ’Voters."               The  learned Judge was in favour  of  allowing               the   appeal  but  his  colleague,   Rao,   J.               expressed a different view.  According to him               (P.   234) :               "The picture simply represents Sunil De  after               being  shot at by the police firing  with  the               caption  underneath  ’Do  not  vote  for   the               Congress who killed Sahid Sunil.’ It does  not               say  that if the voters give their  votes  for               the  Congress all the voters or some  of  them               would be shot as Sunil De." The  matter was referred to Das, J. by the Chief Justice  in view  of the difference of opinion between Barman  and  Rao, JJ.   According  to  this  Judge  no  undue  influence   was exercised because nothing had been stated in the photo Ex. 3 relating  to the picture and there was no statement that  if the  voters gave their votes to the Congress, they would  be shot at as Sunil and accordingly "respondent No. 1 could not have  intended to cause any fear in the minds of the  voters by the above publication to constitute interference with the free exercise of the electoral right of the voters." In Abdul Rahim v. Radha Krishna(1) an unsuccessful candidate charged the returned candidate along with other persons with haviNg  committed  undue  influence  by  publication  of   a pamphlet  in  which  it was alleged  that  deliberate  false statements  of fact in relation to his personal conduct  and character had been made.  In hearing the appeal Das, J.  who delivered  the  judgment  of  the  Court  referred  to   the definition in S. 123(2) of the Representation of the  People Act and said               "There is nothing in the definition that  such               interference or attempt at interference should               be  by any method of  compulsion.   Evidently,               the offence includes               (1)A.I.R. 1959 Orissa p. 188.               361               such  interference or attempt to interfere  by               any  method,  and it definitely  includes  the               method of inducement wherein there may not  be               any  compulsion at all.  The inducement  again               must  be of such powerful type as would  leave               no  free will to the voter in the exercise  of               his electoral right." On  the  evidence the learned Judge held (at  p.  193)  that there  was admission by the respondent himself and  it  was

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abundantly  clear  that  the returned  candidate  had  acted conjointly with his, agent in publishing and circulating Ex. 5  as a result of which the election of the  petitioner  was materially affected.  In Ram Dial v. Sant Lal and  others(1) a  question arose as to whether a command from Sri Sat  Guru Sacha  Padshah  to  the  Namdharies  Halqasirsa  that  every Namdhari should vote for the success of Ram; Dayal Vaid,  it being a primary duty to make him successful in the  election amounted  to the exercise of undue influence. No  doubt  the command was from a person who was a religious leader and as. such had a great influence on the Namdharies.  The Court ex- pressed  the view that 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, and  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 confidence of the electors.  Such a course of conduct on his part,  would amount to an abuse of his great  influence%  if the words used in a document, or utterances in his  speeches leave  no  choice  to the person addressed  by  him  in  the exercise  of  his electoral right.  Incidentally it  may  be noted  that  the learned Judges stressed what  was  material under the Indian law was not the actual effect produced  but the doing of such acts as were calculated to interfere with the free exercise of an electoral right. In Inder Lal v. Lal Singh(2) the charge against the returned candidate  was  that he had been guilty of the  exercise  of undue  influence inasmuch as a pamphlet containing  a  false statement  that the respondent No. 2 was "purchaser  of  the opponents  of the Congress by means of money" was issued  by the  agent of the respondent with his  consent.   Respondent No. 1 contended that the statement related to the public  or political  character  of  respondent No. 2 and  not  to  his private character.  In his judgment, Gajendragadkar, J. said (p. 122) :               "Circulation  of  false statements  about  the               private or personal character of the candidate               during  the  period  proceeding  elections  is               likely to work against the freedom of election               itself inasmuch as the effect created by false               (1) [1959] Suppl. 2 S.C.R. 748.               (2) [1962] Suppl. 3 S.C.R. 114.               362               statements cannot be met by denials in  proper               time  and  so  the  constituency  has  to   be               protected  against  the  circulation  of  such               false  statements which are likely  to  affect               the voting of the elector&"               With regard to the, allegation in the pamphlet               already mentioned the Court took the view that               "In  plain terms, the statement amounts to  an               allegation  that  respondent  No.  2  buys  by               offering bribes the votes of the opponents  of               the  Congress Offering a bribe in an  election               introduces  an element of moral turpitude  and               it  cannot be denied that a person who  offers               bribe loses reputation as an individual in the               eyes of the public."               The scope of s. 171-C I.P.C. was considered in               the  recent  decision  of  Baburao  v.   Zakir               Husain(1).   This  case is  not  an  authority               directly  in point but some observations  made               by  Wanchoo,  C.J. may not be  out  of  place.               Delivering  the  judgment  of  the  Court  his

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             Lordship remarked (p. 145) that               "......  the  gist of undue  influence  at  an               election consists in voluntary interference or               attempt at interference with the free exercise               of any electoral right.  Any voluntary  action               which interferes with or attempts to interfere               with  such  free exercise of  electoral  right               would  amount  to undue influence.   But  even               though the definition in sub-s. (1) of s. 171-               C  is  wide in terms it cannot take  in  mere,               canvassing  in  favour of a  candidate  at  an               election.   If  that  were  so,  it  would  be               impossible   to  run   democratic   elections.               Further sub-s. (2) of s. 171 C shows what the               nature of undue influence is though of  course               it  does  not cut down the generality  of  the               provisions   contained  in  sub-section   (1).               Where any threat is held out to any’ candidate               or voter or any person in whom a candidate  or               voter  is  interested  and the  threat  is  of               injury  of  any  kind, that  would  amount  to               voluntary    interference   or   attempt    at               interference   with  the  free   exercise   of               electoral right and would be undue influence.               What is contained in sub-s. (2) of s. 171-C is               merely  illustrative.  It is difficult to  lay               down  in general terms where  mere  canvassing               ends   and   interference   or   attempt    at               interference  with  the free exercise  of  any               electoral  right begins.  This is a matter  to               be determined in each case (1)  [1968] 2 S.C.R. 133.                             363 The  question which primarily engaged the attention of  this Court  in the above case was, whether a letter addressed  by the  Prime  Minister  to  all  the  electors  in  which  she commended  Dr.  Zakir Husain and requested the  electors  to vote for him amounted to the exercise of undue influence and on the facts of the case the answer was in the negative. The above citation of the cases is in our view sufficient to reject  the  contention  of Mr. Daphtari that  in  order  to establish  undue influence it must be shown that  there  was some threat to a voter or at least an element of  compulsion in the appeal to him.  The cases also show that it would  be futile  to attempt to lay down a simple test  applicable  to all sets of facts and circumstances where undue influence is alleged to have been exercised.  It can however be said that an attempt on the part of anybody to deflect a voter’s  will away  from  a  particular candidate  by  creating  prejudice against or hatred for him, as for instance by casting  false aspersions on his personal character and conduct whether  by spoken words or in writing may be sufficient for the purpose of  establishing  the commission of undue  influence.   Much would  however  depend  on the nature of  the  attempt,  the position of the person making it and the manner in which  it is  made.   The mere publication by postal  despatch  of  an anonymous  but  scurrilous pamphlet regarding  the  personal character  of  a candidate to voters all  and  sundry  might attract  the operation of s. 171-G of the Indian Penal  Code but would fall short of S. 171-C.  But if such a pamphlet is pressed  upon  voters and methods of inducement  applied  to them, specially by others who are equally interested in  the election different considerations may well arise.  In such a case  a  court  of  law  may  legitimately  hold  that   the disseminators of the pamphlet were attempting to canalise or

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force  the  will  of  others  away  from  the  person  whose character  was assailed.  Few would take any serious  notice of an anonymous pamphlet however scurrilous it may be, if it were  pasted on the walls of houses within the  constituency where the election is to be held.  Similar would be the fate of  such  a  pamphlet disseminated  by  post.   Persons  who receive  such  a  pamphlet would either  throw  it  away  or express  surprise  that  such aspersions  were  being  made against  a person like Sri Sanjeeva Reddy who has held  high offices.   I do not think that such dissemination,  although mean  and  ignoble, would have any effect on  the  minds  of persons who belong to the electoral college for the election of a person to the office of the President of India.  But if the  disseminators  of such pamphlets were  persons  holding responsible  offices  or persons who belonged  to  the  same category as the recipients and tried to induce the latter to take a particular line of action in a forthcoming  ’election on  a personal appeal based on such pamphlets, it would  not be  difficult  to  hold  that  their  influence  was   being exercised unduly and corruptly and an offence commit- 364 ted  within the meaning of S. 171-C.  Mere dissemination  of such pamphlets even by hand of well-placed persons would not be  enough  for  such purpose.  The pamphlet  in  this  case plumbs depths of filth and meanness seldom reached.  It  was not  a  mere  attempt to dub Sri Sanjeeva  Reddy  as  a  man generally  devoid  of good principles.  It  accused  him  of conduct  wholly  unbefitting a gentleman not to speak  of  a person  who aspired for election to the high office  of  the President of India and charged him with acts of misdemeanour towards  members  of the other sex giving instances  and  in most  cases mentioning the occasions at which he is said  to have  committed  the indecent acts imputed to him.   It  was calculated  to  engender strong prejudice in  the  minds  of electors  against  Sri Sanjeeva Reddy both in  his  personal capacity  and  as being. the nominee of a group  of  persons described as usurpers of power in the Congress Party.  It is difficult  to find suitable words to condemn the making  and publication  of such a vile pamphlet in an ejection  to  the highest office in the land and it is certainly a great pity that  the authors thereof have not been tracked or  suitably dealt with. Having concluded that the use of scurrilous pamphlet of  the type  disclosed in this may be a step in the  commission  of undue influence within the meaning of S. 171-C of the  Penal Code,  I have to consider the evidence adduced to  find  out the extent of its publication and the manner in which it was published  and  used  before  it  can  be  held  that  undue influence  was  in fact brought to bear upon  the  minds  of certain  electors.   One has next to ascertain  whether  the offence  of undue influence was committed by the  respondent or by any of his workers with his connivance.  It neither of these  be  proved,  we have to shift  the  evidence  to  see whether  the  offence was committed by others to  an  extent which materially affected the result of the election. Counsel  for  the  parties  argued at  some  length  on  the question  as to the standard of proof required to  establish the  commission of the offence of undue influence.  As  the malpractice  is an offence under the Indian Penal  Code  and attracts  punishment  by way of imprisonment,  Mr.  Daphtary argued that the standard of proof required is a much  higher one  than  in ordinary civil cases.  According  to  him  the charge  must be well and truly laid in the petition and  its particulars  and evidence adduced in proof thereof as  would leave no scope for any reasonable doubt that the offence has

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been committed by the persons charged therewith.  Mr.  Daph- laid  great  stress on the production of  evidence  strictly following  the  pleadings and contended  that  no  deviation therefrom was permissible.  The petitioners according to him could not be allowed to abandon or jettison the case raised in the pleadings and :ask the court to hold on the  evidence adduced that the offence of 365 undue influence has been committed by some persons  although the  manner of commission as laid down in the pleadings  was not  borne  out by the evidence.  He also  argued  that  as these persons were not parties to the proceedings they  were under no compulsion to come and give evidence in court and the  respondent owed no duty to call all or any of  them  to disprove the charges levelled against them.  Mr.  Daphtary’s argument  seemed  to  suggest  that  the  petition  and  the particulars thereof supplied later were to be considered  in the same light as the first information report in a criminal case  and the court should weigh the evidence given  at  the hearing in the same way as in a criminal trial and if  there was a significant departure in the evidence from the charges levelled  in the petition, hold that the commission  of  the offence pleaded was not established. Counsel  for the petitioners argued that the paramount  duty of the court in such cases was to uphold the validity of  an election  only if it was pure and although the court  should ’be  slow  in upsetting the result of an  election  on  mere trivialities or irregularities it should not hesitate to  do so  when  the  evidence  disclosed  commission  of   corrupt practice on a large scale merely because of the deviation of the  evidence from the pleading.  It was  further  suggested that  although the charges savored of criminality they  were not  investigated as in a criminal case but the  hearing  of the  election  petition  was more akin to that  in  a  civil proceeding  and the court should come to its  conclusion  on the  issues  framed  and the evidence  adduced  not  on  the balance  of probabilities but on the strength of the  direct evidence adduced. This  question  has engaged the attention of this  Court  on prior occasions and reference may be made to some of them to see the views expressed therein.  In Mohan Singh and  others v. Bhanwarilal & others(1) where charges of corrupt practice had been levelled it was said :               "The  onus of establishing a corrupt  practice               is  undoubtedly on the person who sets it  up,               and  the  onus is not discharged on  proof  of               mere  preponderance of probability, as in  the               trial  of a civil suit; the  corrupt  practice               must be established beyond reasonable doubt by               evidence which is clear had unambiguous."               Much  to the same effect was the  decision  of               this  Court  in Jagdev Singh v.  Pratap  Singh               (2).               (1) [1964] 5 S.C.R. 12.   (2) A.I.R. 1965 S.C.               183.               366               In  Samant  N.  Balakrishna  etc.  v.   George               Fernandez and others etc.(1). it was said (see               at p. 637) :               "Although the trial of an election petition is               made  in  accordance with the  Code  of  Civil               Procedure.  it  has  been  laid  down  that  a               corrupt   practice must proved in the same way               as  a  criminal charge is  proved.   In  other               words,  the election petitioner  must  exclude

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             every  hypothesis except that of guilt on  the               part of the returned candidate or his election               agent." All  the  three cases mentioned above were tried  under  the Representation   of  the  People  Act,  1951  the   relevant provisions of which are somewhat different from those in the Act of 1952.  Under the 1951 Act an election can be declared to be void if, inter alia the High Court is of opinion  that any  corrupt  practice  has been  committed  by  a  returned candidate or his election agent or by any other person  with the consent of the returned candidate or his election agent. S.  123  of the Act of 1951 specifies what are  the  corrupt practices  for the purposes of the Act.  Section 99 of  the’ Act  of 1951 makes it incumbent upon the High Court when  it declares the election of a returned candidate to be void  on the  basis of a charge made in the petition of  any  corrupt practice having been committed at the election, to record  a finding  whether  any corrupt practice has or has  not  been proved  to  have been committed; but a person who is  not  a party to the petition is not to be named. by the High  Court under this section unless he has been given notice to appear before the High Court and to show cause why he should not be so, named.  Liberty is also given to. him in case he appears in  pursuance a the notice to cross-examine any witness  who has  already  been examined by the High  Court  and  calling evidence  in his defence and of being heard.  The  Act  of 1952 does not contain any similar provision. There can be no doubt that a charge of undue influence is in the nature of a criminal charge and must be proved by cogent and  reliable evidence not on the mere ground of balance  of probability  but  on reasonable certainty that  the  persons charged therewith have committed the offence on the strength of  evidence which leaves no scope for doubt as  to  whether they had or had not done so. It must also be remembered that even  if there be no provision in the Act of 1952 of  giving notice to the persons who are charged with having  committed undue influence or of impleading them as parties, it is  the duty of the election petitioners to lead direct evidence  on the point and the respondent cannot take shelter behind  the plea  that he owes no duty to call them or to  disprove  the allegations made against them if he is to have his  election maintained (1)  [1969] 3 S.C.R. 603. 367 by  the Court.  There is a special provision in the  Act  of 1952  which  is  absent  from the Act of  1951  in  that  an election may be set aside on the ground of the commission of undue  influence  by  persons  who are  not  agents  of  the returned  candidate and whose action has not ’been  connived at by him if the court finds that the result of the election has  been  materially affected by the  commission  of  undue influence  by  outsiders  and  complete  strangers  to   the election.  The analogy of the trial of an election  petition with  that  of a criminal charge cannot be pushed  too  far. There  are,  inherent  differences between the  two  in  the matter of investigation.  The vital point of identity in the two  trials  is  that the court must be able to  come  to  a conclusion beyond any reasonable doubt as to the  commission of  a  corrupt  practice.   The  court  looks  for  reliable independent  evidence  to establish charges  of  a  criminal nature  but  unfortunately  such evidence is  found  to  be lacking  in a great many cases.  It is well-known that  even in cases where persons are charged with murder,  independent witnesses fight shy of the witness box and are not called to support the prosecution case; the Judge hearing such a  case

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has  to make up his mind on’, the evidence of witnesses  who are  partisan  in  the sense that they are  related  to  the victim  and  shift the same carefully to make up,  his  mind whether the charge is established.  The same is the case, in the  trial  of  most of the  election  petitions.   Election petitioners  nearly  always examine persons  who  are  their supporters,  while the. returned candidate follows the  same course.   This  takes place in particular where  charges  of undue  influence and bribery are levelled.  However  onerous the task of the court may be because of the partisan  nature of  the  witnesses,  it cannot  reject  the.  oral  evidence adduced  merely  on that ground, but it has  to  examine,the same carefully and come to a conclusion whether the evidence establishes  the corrupt practice beyond  reasonable  doubt. Even in a criminal trial the court can hold a person  guilty of a crime on the strength of evidence of partisan witnesses if  they are found to be reliable although there may  be  no independent  corroboration, thereof and I see no  reason  to depart  from  that  principle in the trial  of  an  election petition where charges of offences culpable under the Indian Penal Code are levelled. In this case no less than 116 witnesses were examined, 55 on the  side  of  the petitioners and 61 on the  side  of  the respondent.   A good many of the witnesses are  persons  who have  held  or  still hold high offices.   Excluding  a  few nearly all of them are elected representatives of the people either  to  the Houses of Parliament or to  the  Legislative Assemblies  of the States.  They are men whose  evidence  in the ordinary course of things should carry great weight  but unfortunately a good many of them are members of two hostile camps  who came to court resolved to do their best  for  one side or the other.  It is well-known that the old Congress 368 Party  is no longer united and that there has been  a  sharp cleavage  among  its members and before the hearing  of  the election  petitions one group came to be known  as  Congress (0)  and the other Congress s (R).  The clevage is  referred to  in  the petition itself.  Persons who  have  figured  as witnesses  but  do  not belong to either  of  these  parties generally  but not universally have their affinity  for  one side  or the other.  It has also come out in  evidence  that the  split  in the Congress Party originated back  in  April 1969 when there was a meeting of the A.I.C.C. at  Faridabad. The difference of opinion seemed to stem from opposite views held by some leading members about the steps to be taken for the  economic progress of the country.  It came out  clearly in  the evidence of Sri Shankar Dayal Sharma (a witness  for the  respondent) and a member of Madhya Pradesh  Legislative Assembly who had been in public life for about 32 years.  He became a member of the All India Congress Working  Committee in January 1968 and was appointed General Secretary of  the Indian  National  Congress in April 1968.  He  continued  in that  post till the 1st November 1969 when he submitted  his resignation  at the request of the then Congress  President, Sri Nijalingappa.  His evidence which was not challenged  in cross-examination  shows  that at Faridabad  session  a  new Procedure was adopted for splitting the A.I.C.C. into  three panels.   In  the economic panel serious  differences  arose between  the  members specially between  the  Chairman,  Sri Morarji Desai and some of its members and no report could be finalised.  According to tile witness there was a demand for nationalisation of banks by some members which was’ resisted by  the  Chairman and some others.. It is not  necessary  to mention the various points of difference between the members of  the  panel  but  according to  this  witness  the  Prime

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Minister  and Sri Morarji Desai held contrary views on  this point. According to Sri Nijalingappa who figured as a witness  for the  petitioners the question of selecting a person fit  for the office of the President arose very soon after the demise of  Dr. Zakir Husain early in May 1969.  He claimed to  have sounded the Prime Minister on more than one occasion in  the months  of May and June to fix upon a proper person for  the office but nothing resulted.  When they met at Bangalore  in July 1969 the question cropped up again.  The Prime Minister told  him at the meeting of the 12th July that she  had  the respondent in her mind but she found no encouraging response to  her proposal.  Sri Nijalingappa then said  that  members might  suggest  other  names whereupon  the  Prime  Minister proposed  the name of Sri Jagjivan Ram and Sri S.  K.  Patil suggested  the name of Sri Sanjiva Reddy.  As  no  agreement could  be arrived at, the matter was put to vote and Sri  S. K.  Patil,  Sri Morarji Desai, Sri Chavan  and  Sri  Kamaraj Nadar  were in favour of Sri Sanjeeva Reddy while the  Prime Minister and Sri 369 Fakhruddin  Ali Ahmed supported Sri Jagjiwan  Ram.   Neither Sri Jagjiwan Ram nor Sri Nijalingappa expressed any opinion. According to Sri Nijalingappa, the Prime Minister  expressed unhappiness  over it and said that serious consequences  may follow. It  is  the case of the petitioners as brought  out  in  the evidence  that  although  the  Prime  Minister  signed   the nomination  paper  of Sri Sanjeeva Reddy within a  few  days thereafter  she  did not take any other step to  ensure  his success  at  the election.  It also, in  evidence-and  is  a matter  of  common  knowledge-that  immediately  after   the conclusion of the Bangalore Session the portfolio of Finance was   withdrawn  from  Sri  Morarji  Desai  and   the   Bank Nationalisation  Ordinance was promulgated just  before  the meeting of Parliament in July 1969.  The split in the  party which  had  been  dormant  before  came  to  limelight  soon afterwards.  Although the two conflicting groups came to  be known as Congress (0) and Congress (R) some time  thereafter there can be little doubt that the seed of dissemination was bearing  fruit and mutual suspicion between the members  of the  two  groups  came to  the  surface.   The  Presidential election  which  was  held on 16th August 1969  was  in  the offing  but it seemed to have been made the venue for  clash of ideologies and test of strength.  According to Sri I.  K. Gujral  a witness for the respondent, the under  current  of difference  between the parties since the Bangalore  Session of  the Congress came to the surface early in  August  1969, the decisive factor being Smt.  Tarkeshwari Sinha’s  article in the Search Light suggesting a move to throw out the Prime Minister.   According to Sri Gujral many people were of  the view that the Congress President Sri Nijalingappa had  tried to make a deal with Sri Ranga of the Swatantra Party and Jan Sangh  for  a coalition Government and the election  of  Sri Sanjeeva  Reddy as President was considered to be a step  in that direction. That  there  was  a  sharp difference  of  opinion  and  the arraying of members into two warring camps at or about  that time admits of no doubt or dispute.  Whoever be the  authors or  the  printer,, of it, the distribution of  the  pamphlet started  round  about  9th or 10th August.   From  the  11th August  correspondence started between Sri Jagjiwan Ram  and Sri   Fakhruddin  Ali  Ahmed  on  the  one  side   and   Sri Nijalingappa  on  the other, as well as  between  the  Prime Minister  and  Sri Nijalingappa.  As a matter  of  fact  the

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correspondence   between   the  Prime   Minister   and   Sri Nijalingappa  had  started as early as 16th  July.   In  the letter  of  that  date  (Ex.   P-41  )  the  Prime  Minister complained that she was deeply distressed by the, stories in the  Press attributing all kinds of motives to her and  said that  newspaper speculation ’about her alleged  reaction  to the   decision  of  the  Parliamentary  Board  were   wholly misconceived and inspired by interested elements.  On August 11, 1969 Sri 370 Jagjiwan  Rain  and Sri Fakhruddin Ali Ahmed  wrote  to  Sri Nijalingappa               "Considerable confusion exists in the minds of               numerous  members of our  Parliamentary  Board               regarding   the   talks  made  on   your   own               initiative with some of the leaders of the Jan               Sangh  and  Swatantra Party and  that  it  was               claimed that as a direct result of your  talks               the Jan Sangh Executive has decided to support               Sanjeeva Reddy."               The  writers complained that the,  members  of               the Congress Party were: considerably agitated               over this and ugly rumours were afloat and the               situation had worsened because those whom  Sri               Nijalingappa   had   approached   and    their               representatives   had  openly   demanded   the               removal of the Prime Minister.  They ended the               letter by saying :               "Unless the whole position was fully clarified               and the basis of Sri Nijalingappa’s talks  and               the readiness of the other parties to  support               Sri   Sanjeeva   Reddy   were   satisfactorily               disclosed it might have great repercussions on               the Presidential election." To this Sri Nijalingappa replied on August 13th saying  that although he’ head met the writers the day before’ the points raised  in  the  letter  had  never  been  canvassed.    Sri Nijalingappa  further stated, that he had  been  approaching every  party for its support and requesting every voter  for his vote in favour of Sri Sanjeeva Reddy in accordance  with past traditions.  Correspondence went on in the same vein up to  the  18th  August  even after the  taking  of  the  poll According to Sri Nijalingappa’s letter to the Prime Minister dated the 15th August the members of the Parliamentary Board had  agreed  on  the 1st August that he  might  contact  all parties  and  voters to seek for their support  and  he  had reported to the Congress Parliamentary Board meeting held on the  5th  about  his  talks  with  the  opposition  parties. Further there never was any understanding with, Jan Sangh or the  Swatantra  Party  beyond seeking  their  supporter  the Presidential  election and the demand for a free vote  which had already been raised was in fact a claim of right to vote for the respondent, a candidate nominated by the Communist-, and Communalists. No  useful purpose will be served by referring to  the  said correspondence  in detail and mention has been briefly  made of the same only to bring out in sharp focus the  difference between the two groups.  Members of the two groups who  have appeared  as  witnesses in this case  had  definitely  taken side,; some days before the date of the poll.  According  to some witnesses examined on 371 behalf  of  the respondent, the manner of selection  of  Sri Sanjeeva  Reddy  was  against all  past  traditions  of  the Congress  as  no attempt at consensus was  made  before  the

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matter  was.  put to vote.  Some even felt  that  the  Prime Minister should not have been over-borne in the way she  was done  on  the 12th July.  Whatever might be  the  individual reactions  of  the members of the two groups,  there  is  no gain saying that there was a strong current of opposition to the election of Sri Sanjeeva Reddy as President of India and more than one witness for the respondent including Sri Yunus Saleem  admitted  that  there was  a  campaign  for  getting signatures of members of Parliament on a document  demanding the  right to vote freely in the election.  This  in  effect meant  the  right  to vote against  the  party  affiliation although  it  was  termed  a  right  to  vote  according  to conscience. I now proceed to consider the contents of the pamphlet  I’ll detail  and  then examine the evidence adduced to  find  out whether any and if so, what use was made of it by any one in a  manner  which could be said to amount to  an  attempt  to interfere with tile free exercise of any person’s  electoral right  within  the meaning of s. 171 C of the  Indian  Penal Code.   It is also necessary to scrutinise the  evidence  to see whether the charge levelled by the petitioners that  the pamphlet  was the work of a group of People  supporting  the Prime  Minister and secretly working for the success of  the respondent is borne out. Although the pamphlet on the face of it was anonymous, there are  certain indications in it to show its probable  origin. The  document purports to be addressed to  "fellow  Congress Members  of Parliament and the Vidhan Sabhas"  by  "Congress Workers  Committee  to combat the Syndicate" and  bears  the date 9th August.  It starts off thus :               "Our great Party (obviously referring to,  the               Congress Party) which led the entire nation in               the struggle against British rule and had  the               glory   of  bringing  independence   for   our               motherland,  has today fallen into a  slur  of               despondence  and  demoralisation.   Into   its               leadership  have  crept in  men  whose  record               shows that they have sold their conscience  to               the  rich and the corrupt, who are seeking  to               destroy  all attempts of harnessing  the  Con-               gress  once  again the service of  the  common               people."               It then goes on to charge that               "Self-seekers  infiltrated  into  this   great               organisation.  After Panditji’s death it is  a               small click of unscrupulous persons who landed               themselves into what is               372               called the syndicate and have tried to  become               virtual dictators." It ascribes the heavy defeat suffered by the Congress  Party in  the  general election of 1967 to the management  of  its affairs by evil men.  The reference seems to be to Sri S. K. Patil,  Sri Atulya Ghosh and Sri Kamaraj.  It then  proceeds to  state (a) that at the then recent Bangalore  session  of All  India Congress Committee the Prime Minister set  out  a programme  for  immediate  reforms in  the  economy  of  the country, (b) this not being to the liking of a small coterie described as ganster politicians they "decided to set up one of  their men, a corrupt and immoral person, Sanjeeva  Reddy as  the Congress candidate for the august post of  President of  India" and (c) this selection was made not only  against the  wishes of the Prime Minister of India but also  without caring  to consult the Congress Working  Committee,  Pradesh Congress  leaders  and the addressees.   The  pamphlet  then

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seeks  to analyse the reason behind this choice.   To  quote the words of the pamphlet itself :               "That   is  because  Sanjeeva  Reddy   himself               belongs  to this gang.  Also  the  syndicate’s               plan  is that if Sanjeeva Reddy could be  made               President  of India then it will be easier  to               block  all enlightened measures; as  President               he  will  obstruct the present  Government  at               every  step  whenever  any  action  is   taken               against  corruption or in the interest of  the               common  people.   The  syndicate’s  agents  in               Parliament  have  been openly saying  that  if               Sanjeeva  Reddy  becomes the  President,  they               will  drive out Smt.  Indira Gandhi in  a  few               weeks.  They are all the more enraged at  the               nationalisation of the 14 big banks which were               only helping big capitalists to profiteer  and               amass  black money.  The syndicate  is  scared               that  such measures would make  Indira  Gandhi               more  popular with the common man  while  they               themselves  have forfeited the  confidence  of               the vast millions of our country.  How panicky               they  are  could be seen from  the  scurrilous               writings   of   one   of   their   lieutenants               Tarakeshwari Sinha openly threatening that the               syndicate will fight and defeat Indira Gandhi.               These  unscrupulous  bosses  prefer  that  the               Congress  should suffer a crushing  defeat  in               the next general elections in 1972 rather than               that our Prime Minister becomes stronger.  For               they  look  upon Indira Gandhi as a  thorn  in               their  path;  and they think the only  way  to               corner her would be to make Sanjeeva Reddy the               President......               It  is  ’as  part of this  conspiracy  of  the               syndicate that Nijalingappa, another syndicate               boss (against whom               373               there  are many grave charges  of  corruption)               has already approached the Swatantra Party and               the  Jan Sangh, secretly planning  with  those               anti-national   parties   for   a    coalition               government with the syndicate leaders." The  rest  of  the  pamphlet is  aimed  at  denigrating  Sri Sanjeeva  Reddy.   It charges him with being a  corrupt  and unscrupulous  politician  whose misdeeds had  been  severely condemned  by the High Court of Andhra Pradesh in  1964  and whose record as a Minister for Steel in the Central  Cabinet had been so bad that he had to be dropped after the  general election of 1967 and was put up as a Speaker of Lok Sabha on the  pressure  of the syndicate.  The pamphlet  proceeds  to give  instances  of acts of misdemeanour  committed  by  Sri Sanjeeva Reddy towards members of the other sex.  It ends up with  an exhortation to the addressees that if they have  to carry  forward the programme of the Congress in the  service of  the Indian people and to weed out  corruption,  nepotism and  racketeering, they have to use their powers  to  defeat the  syndicate inter alia by rejecting Sri  Sanjeeva  Reddy. The pamphlet wind,,,, up with the following: "On each and every one of us lies the sacred  responsibility of seeing to it that this living monument of moral depravity does not become the President of India.  Remember this  when you cast your vote in the ballot box on 16th August, 1969." Although  Mr.  Daphtary put up a  faint-argument  that  this might  be  the  work  of any party  or  group  opposing  the

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Congress and interested in its decline and fall, one can not unreasonably take the view that in all likelihood a group of disgruntled Congress members were at the, back of it.  It is to  be  noted that in the whole of the pamphlet which  is  a fairly  long one, there is no reference to any  other  party excepting  where  Sri Nijalingappa is  described  as  having approached  the  Swatantra  and Jan Sangh  for  a  coalition Government.  There is no reference to the respondent or  any other candidate ’at the election and there is no attempt  to belittle  or ridicule the members of any of the  many  other political parties in the country. At  or about this time there was frequent reference  in  the daily  newspapers  to  a group in  the  Congress  dubbed  as syndicate  and  another group described as young  Turks  who were  in  open  rebellion  ’,against  the  syndicate.    The pamphlet  shows  that the authors thereof were of  the  view that  the  Prime  Minister  was  attempting  to  give   what according to them was a correct lead to the country and that she  was  sought  to  be thwarted  by  the  members  of  the syndicate.   So  much so that the latter were said  to  have entered 374 into  A  conspiracy  to oust the  Prime  Minister  from  her position and set up a coalition government.  This is  sought to  be  supported by writing ascribed to  Smt.   Tarkeshwari Sinha as openly threatening the defeat of the Prime Minister by the syndicate.  There are thus strong indications in  the pamphlet to show where it could have come from and who  were interested  in  the  defeat of Sri Sanjeeva  Reddy  and  the motive behind this move.  It has come out in the evidence of a  number of persons examined on behalf of  the  respondent some  of whom admitted themselves to have been described  in the  press  as  young  Turks, that  their  views  about  the management  of  the affairs of the Congress  Party  by  some senior  members of it described as syndicate was similar  to that expressed in the pamphlet.  Sri Krishna Kant (R.W.  32) admitted  that he himself, Sri Chandrasekhar (R.W.  5),  Sri Mohan  Dharia (R.W. 17), Sri Santi Kothari  (not  examined), Sri Amrit Nehata (R.W. 3), Sri Sashi Bhushan (R.W. 38),  Sri R.  K.  Sinha (R.W. 8) and others were described  as  young Turks and that the syndicate was composed according to  the press  of members like Sri Nijalingappa, Sri  Atulya  Ghosh, Sri S. K. Patil and others.  Sri Sanjeeva Reddy according to this  witness  was  also  considered to be  a  part  of  the syndicate.   Most  of  these persons  when  examined  openly stated that they had decided to go against the selection  of Sri  Sanjeeva  Reddy  by  the  syndicate,  that  they   were supporting the candidature of the respondent and that  there was a signature campaign in favour of freedom of vote.   Sri Krishna  Kant himself admitted having been  responsible  for getting  such signatures and so did Sri Yunus  Saleem  (R.W. 51).  Sri Krishna Kant frankly admitted that when they could not  support  Sri  Sanjeeva Reddy they  could  not  possibly support Sri Deshmukh, another candidate at the election  who was a Jan Sangh candidate which left only the respondent  on the  field.   Evidence on much the same line  was  given  by other witnesses examined on behalf of the respondent. Sri  R.  K. Sinha (R.W. 8) stated that  "the  syndicate  was taking  the  Congress to the funeral pyre  in  West  Bengal, Madras  and Kerala".  He also said that the majority of  the group  known as young Turks had declared their  support  for the  respondent.   He admitted having made a  public  speech about  this  time  to the effect that  the  members  of  the syndicate   were  opposed  to  the  formation  of   Congress Socialist  Party  ’and bad "planned to fill,  the  political

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vacuum after Pandit Nehru." When his attention was drawn  to the  pamphlet Sri Shashi Bhushan (R.W. 38) approved  of  the statements made in the first three paragraphs namely that  a set  of self-seeking, corrupt and unscrupulous  persons  had grabbed  power in the Congress organisation after the  death of  Pandit Nehru and it was because of their  misdeeds  that the party had suffered reverses in the election of 1967.  It should be noted that Mohan 375 Dharia’s  attitude  in the Presidential  election,  somewhat different  from  that of the other young  Turks.   It  would appear  that  the  proclivity  of  this  group  of   persons described  as  young Turks and their support for  the  Prime Minister  and  opposition  to the  senior members  of  the Congress  fold like Sri S K. Patil, Sri Kamaraj  and  others was  sought  to  be utilised in the  election  petitions  by openly  averring that the supporters of the  Prime  Minister were  behind  the  publication  and  dissemination  of   the impugned pamphlet.  The evidence adduced does not bear  this out. The, authorship of the pamphlet not being traced, we have to see whether the dissemination of it in the manner deposed to was   sufficient  to  establish  the  commission  of   undue influence.  I have no doubt that if the statements contained in the pamphlet were made the subject of a verbal appeal  by one,  member  of  the  electoral  college  to  another   and particularly those in the Congress fold, a very strong  case for  the  exercise  of undue influence would  be  made  out. There  would  not in my opinion be much  difference  between such  an  appeal  and an appeal in  writing  signed  by  one elector  to another.  In such a case it could be  said  that the  elector  making  the appeal was trying  to  misuse  his position  and seeking to influence the other and  attempting to interfere with the free exercise of the other’s electoral right.   But  the evidence adduced falls far  short  of  the proof  of  any such case.  It is the admitted  case  of  the parties  that  the  pamphlet was  very  widely  disseminated through the post among members of Parliament and members  of the Legislative Assemblies hailing mostly from U.P. but  not being  confined  to  that  State alone.   The  case  of  the petitioners  is that not only was the pamphlet broadcast  by post but there was free distribution of it among members  of both  Houses  of.  Parliament i.e., in the Central  Hall  of Parliament from the 9th to 15th August.  Reference was  made to the proceedings of the two Houses to show that complaints about  the distribution of filthy pamphlets in  the  Central hall of Parliament bearing on the Presidential election were being  made in the Lok Sabha.  Although in the  pleadings  a specific  case was made that some prominent members  of  the Congress  Party  supporting  the  Prime  Minister  like  Sri Jagjiwan  Ram had gone the residence of certain  members  of the electoral college for personal delivery of the copies of the  pamphlet  to them, practically no attempt was  made  to substantiate such allegation by oral evidence in court.   As regards distribution of the pamphlet in the Central hall  of Parliament  there  was  evidence  given  by  the   following witnesses  for the petitioners, namely, Sri Kanwarlal  Gupta (P.W.  2), Sri K. S. Chawda (P.W. 3), Sri N’.  P. C.  Naidu (P.W.  6),  Sri Shiv Narain (P.W. 12), Sint.   J.  B.  Shah’ (P.W. 13).  Sri N.  N. Patel (P.W. 14), Sri Mohanlal  Gautam (P.W.  27), Sri C. D. Pandey (P.W. 17), Sri D. N. Deb  (P.W. 18),  Sri Hukumchand Kachwa (P.W. 20), Sri M. Rampure  (P.W. 23), Smt.  Pushpa 376 Mehta  (P.W.  24),  Sri Morarji Desai (P.W.  27),  Sri  Rani

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Kishan Gupta (P.W. 30), Sri D. S. Raju (P.W. 35), Sri  Patil Putappa (P.W. 36), Sri Sher Khan (P.W. 37), Sri Choudhuri A. Mohamed  (P.W.  38),  Sri C. M. Kedaria (P.W.  39),  Sri  N. Ramreddy  (P.W. 40) and Sri abdul Ghani Dar (P.W.  41).   On the other hand a substantial number of witnesses examined by the  respondent numbering no less than twenty gave  evidence to  the  effect that they never saw any  such  distribution. Effort  was made by counsel for the respondent to  establish by cross-examination that such distribution of the  pamphlet would not have been allowed by the Watch and Ward department of  the  Houses of Parliament.  Among the persons  who  were supposed  to have been responsible for the  distribution  in the  Central hall of Parliament the prominent  figures  were Sri Yunus Saleem, Sri Chandrasekhar, Sri Sashi Bhushan,  Sri Mohan  Dharia and some others.  It is somewhat strange  that most  of these people when examined not only  denied  having participated  in the distribution but went to the length  of stating  that they had never seen the pamphlet before  they came   to  court,  although  some  admitted   having   heard discussion between members regarding it.  According to  some witnesses for the petitioners prominent among whom were  Sri Morarji Desai, Sri S. K. Patil and some others, the pamphlet was  the talk of the town for days and the Central hall  of Parliament was full  it. There  is  thus  a direct conflict of  testimony  about  the distribution  of the pamphlet but there can be little  doubt that the pamphlet did find its way in the Central hall and I have  no  doubt  that  quite a few copies  of  it  had  been distributed in the hall itself.  That there was a good  deal of  talk among the members and discussion over the  pamphlet admits of no doubt.  It is difficult to believe that  unless the  pamphlet was there in the Central hall people would  be discussing  the contents of it in the abstract.  No  witness suggested  that  he himself had taken a copy of  it  to  the Central hall.  The obvious inference from all this. is  that there  was some distribution in that hall although  probably the petitioners were trying to exaggerate the extent of  the distribution while witnesses for the respondent were equally interested in denying it wholesale.  Hardly any witness came to  the  witness box to state that he was not only  given  a copy of the pamphlet in the Central hall but approached  and appealed to personally to carry out the mandate contained in the concluding portion thereof.  The substantial evidence of the  witnesses for the petitioners was merely to the  effect that copies were being distributed in much the same  fashion as  hand-bills  are  distributed by  advertising  agents  of tradesmen on the street. I  may refer to the evidence of important witnesses for  the petitioners who spoke about such distribution.  P.W. 11 Sri 377 Kanwarlal  Gupta himself an advocate in his  examination-in- chief  said that he saw the pamphlet for the first  time  on the  12th  August being distributed in the Central  hall  of Parliament  by some members, namely, Sri Yunus  Saleem,  Sri Sashi  Bhushan  and others.  According to him  the  pamphlet created  such a prejudice in his mind against  Sri  Sanjeeva Reddy that he did not pursue his intention to invite him  to dinner  at his house although he had already  mentioned  the subject  to  Sri Sanjeeva Reddy.  He also said that  he  had discussion  with  other  members  of  Parliament  about  the pamphlet who held the same view as himself.  P.W. 12 Sri  K. S.  Chawda,  another member of Parliament said that  he  had received  a  copy  of the pamphlet in the  Central  hall  of Parliament from Sri Krishna Kant, member of the Rajya  Sabha and  having  read  it came to the  conclusion  that  if  Sri

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Sanjeeva  Reddy  was elected to the Presidential  office  he would   turn  the  Rashtrapati  Bhavan  into  a  centre   of immorality.  Of his own be said nothing about Krishna Kant’s appeal to him but when he was specifically asked whether Sri Krishna Kant had told him anything at the time he said  that Sri  Krishna  Kant  had  only  mentioned  what  was  in  the pamphlet.   Sri M. P. Venkataswamy Naidu P.W. 17 claimed  to have  received a copy from Sri Yunus Saleem in  the  Central hall.  He also said that he wanted to meet the respondent to ask  him to contradict the pamphlet because  his  supporters were distributing it.  He went to the respondent’s house  in Defence  Colony  but did not succeed in contacting  him  and wrote a letter requesting him to contradict the contents  of the   pamphlet  but  he  had  never  communicated   to   the petitioners  the fact of having written such a letter.   Sri Nanubhal N. Patel, P.W. 26. a: member of the Lok Sabha  said that  Sri  Sashi Bhushan, Sri Chandrasekhar  and  Sri  Yunus Saleem  were  distributing the pamphlet about 12th  or  13th August.   When they came to the witness to give him a  copy he  told them that he had already received one at  his  flat whereupon  they  asked him whether he had  gone  through  it thoroughly.   On the witness’s answering in the  affirmative they  asked him to be careful and to consider all the  facts before  voting.  Sri Mohanlal Gautam who was elected to  the Rajya  Sabha on the 13th August 1969 and taken his  oath  on the  day  following claimed to have received a copy  of  the pamphlet  in the Central hall of Parliament from Sri  Shashi Bhushan but had nothing to say about any personal appeal  to him.   Sri  C. D. Pandey P.W. 29 said that he had  seen  Sri Sashi  Bhusban,  Sri  Krishna Kant.  Sri  Yunus  Saleem  and others  distributing  the pamphlet in the  Central  hall  of Parliament  in  2 or 3 batches but they did not give  him  a copy.   In cross-examination be said that he had never  told Sri  Ramreddy, the first petitioner in Petition NO.  4  that the pamphlet had been given to him in the Central hall  of Parliament by Sri Jagjiwan Ram and other members of  Parlia- ment.  This answer is surprising as the witness himself  was one of the petitioners in Petition No. 4 who never cared  to read the 378 whole petition.  According to the verification of the answer to  the particulars given by Sri Abdul Ghani Dar, Sri C.  D. Pandey  had received a copy of the pamphlet in  the  Central hall of Parliament from Sri Chandrasekhar and this was based on the information alleged to have been received from Sri C. D.  Pandey  himself.  At this stage I may  mention-that  the major portion of the particulars regarding the  distribution of the pamphlets and the information thereof claimed to have been received by Sri Abdul Ghani Dar in particular from  the recipients  were not corroborated by most of  these  persons when they figured as witnesses.  Sri Hukumchand Kachwa, P.W. 32,  a member of the Jan Sangh said in  his  examination-in- chief that he had got a copy of the pamphlet in the  Central hall  of  Parliament from Sri Sashi Bhushan Bajpay  and  Sri Jagjiwan  Rain and the former had told him that the  witness should  support the respondent as he was a champion for  the cause  of  labour  and  that  Sri  Sanjeeva  Reddy  was a characterless  person  as could be seen  from  the  pamphlet itself.  He would have the court believed that after reading the pamphlet he thought that a person possessing a character like  Sri  Sanjeeva  Reddy’s if elected  would  convert  the Rashtrapati Bhavan into a brothel.  Sri Mahdevappa Rainpure, P.W.  35 said that he, had got a copy of the  pamphlet  from Sri  Yunus  Saleem  who  had told him at  the  time  of  the distribution  that the witness could get enough  information

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from  the pamphlet.  Sri R. K. Gupta, P.W. 43, a  member  of the Lok Sabha who had received a copy of the pamphlet at his residence said that he had one to the respondent thereafter on being informed by his daughter that a telephone call  had come  from  the respondent.  The respondent  had  asked  the witness  to  support  him which  the  latter  refused.   The witness  however  claimed to have told the  respondent  that pamphlet like the one he had received should not be used and should be contradicted by his party whereupon the respondent had  sought  to excuse himself by saying "What  can  I  do." Although he had seen the pamphlet being, distributed in  the Central hall he did not remember who were doing it.  Sri  D. S.  Raju, P.W. 49, a member of the Lok Sabha, said  that  he had received a copy in the Central hall of Parliament and so far as he could remember it was Sri Yunus Saleem  who  had passed it on but had not spoken to him at the time of making it  over.  Sri Patil Putappa, a member of the  Rajya  Sabha, P.W. 50, said that he had seen Sri Yunus Saleem distributing the  pamphlet  in the Central hall and had received  a  copy from him.  He claimed to have told Sri Yunus Saleem that the latter was acting improperly whereupon Sri Yunus Saleem  had rebuked  him  saying  that  it was  none  of  the  witness’s business.   Sri Ramreddy P.W. 54, one of the petitioners  in Petition  No.4  said  that he had received  a  copy  in  the Central  ball  of Parliament from Sri Yunus Saleem  and  Sri Sashi  Bhusban distributing copies together.  He  also  said that he had seen not only Sri Yunus Saleem 379 and  Sri  Sashi  Bhushan but Sri Krishna  Kant,  Sri  S.  M. Banerjee,  Sri  Moulana Ishaqi, Sri  Chandrasekhar  and  Sri Mohan  Dharia  all named in, the petition  distributing  the pamphlet.   He averred that he had complained to the  Deputy ’Speaker  of the House about the unlawful activities of  Sri Yunus  Saleem  whereupon the latter bad run  away  from  the house.  He also said that the proceedings of the House would support   his  statement.   Reference  was  made   in   this connection  to column 3813 of the proceedings of  the  Rajya Sabha  dated the 13th August 1969.  The official  report  of the  proceedings  shows  that  Sri  Ramreddy  was  making  a complaint  about  Sri Yunus Saleem  going  about  collecting signatures  on  a  piece of paper  and  making  a  political campaign of collecting signatures to the paper in the  house and  further  that he was going from member to  member.   On being asked by the Deputy Chairman as to whether the witness himself  had  been approached, Sri Ramreddy  said  that  Sri Yunus  Saleem  had  gone  to  Sri  Muniswamy  whereupon  Sri Muniswamy said that he (Sri Yunus Saleem) had asked one  Sri Kulkarni to sign.  Sri Ramreddy thereupon had said that  Sri Yunus Saleem had some document of a political nature in  his hand and the house was not meant for such activities.   When he  was  referred  to a passage in Petition  No.  5  wherein reference was made to Sri Yunus Saleem’s activities he  said that  he  was  not  very  definite  "  about  the  signature business"  and he did not know whether Sri Yunus Saleem  was in fact collecting signatures of others oil any document. It was only Sri Abdul Ghani Dar who said that at the time of ving  him  a copy of the pamphlet in the  Central  hall  Sri Yunus Saleem bad told him that Sri S. Reddy was a debaucher, that  he.  was in collusion with Jan Sangh, that  the  Prime Minister and others were all against Sri Sanjeeva Reddy  and that  if Sri Sanjeeva Reddy won the election it would  be  a victory for Jan Sangh and Muslims would be eliminated. The  above  is  not exhaustive of the  evidence  adduced  on behalf of the petitioners with regard to the distribution of the  pamphlet in the Central hall as a means  of  exercising

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undue  influence over electors but it is a fair  summary  of the evidence adduced which on the face of it-barring that of Sri Abdul Ghani Dar, falls far short of a personal appeal or any effort to persuade a voter by deflection of his will and interference with his electoral right.  Sri Yunus Saleem  as well  as  the other persons commonly referred  to  as  young Turks. stoutly denied having ever engaged themselves in  any distribution  of  the pamphlet and most of  them  disclaimed ever having come-across it before they figured as  witnesses in  court.  Sri Abdul Ghani Dar’s statement in  the  witness box about Sri Yunus Saleem having taken him aside for making an  appeal  is directly contradicted by a statement  in  the petition where in paragraph 13 (b) (iv) 380 he had stated that his talk with Sri Yunus Saleem had  taken place in the presence of a number of members of  Parliament. It  would be expected that Dar would remember the  facts  of the  distribution  more clearly on the 16th  September  1969 when the petition was filed than when he came to the witness box in March 1970.  Whatever be the reason for the deviation in  the Statement on oath before the court from that in  the petition it does not inspire confidence. The witnesses for the respondent adduced various reasons  in their  lengthy cross-examination based mainly  on  political animosity for the witnesses for the petitioners deposing  in regard  to distribution of the pamphlet by them.   From  the manner  in  which  these reasons were  given  out  in  quick succession it would appear that they had come well  prepared with  the case they had to meet.  However that may be  there was  direct conflict of testimony between the two sides  and it would not be uncharitable to remark that truth :sat  very lightly on the lips of most of the witnesses. In  my  view the evidence falls far short  of  any  personal appeal  through the means of the pamphlet and I cannot  hold that  the offence of undue influence was committed  by  some people  by merely distributing the same.  Such  distribution may  attract culpability under s. 171-G of the Indian  Penal Code but would not per se attract s. 171-C. I  do  not  therefore  find it necessary  to  refer  to  the evidence of ’witnesses for the respondent on the question of the  exercise  of undue influence by  distribution  of  the, pamphlet.  While I find myself unable to say that they  were all speaking the truth when they said that they had not seen the, distribution of it in the Central hill or that they had not  seen  a copy of the pamphlet before they  came  to  the witness  box,  I cannot hold in favour  of  the  petitioners merely because some of the witnesses for the respondent were not  witnesses of  truth.  It  would  be  unprofitable  to examine the evidence closely to find out where they lied  or the  extent  of untruth uttered by them.  Such  an  analysis might have become necessary if I had come to the  conclusion that  there  was  a  prima  facie  case  made  out  by   the petitioners  about the exercise of undue influence  by  mere dissemination of the pamphlet which could be contradicted by the respondent’s witnesses. The  above being my view on the question of the exercise  of undue influence by means of the publication of the pamiphlet and   the   dissemination  of  it,  the  question   of   the respondent’s conniving at it does not arise.  I may  however indicate  shortly the respective cases of the  parties.   It was the case of the petitioners that the pamphlet originated from  the camp of the Prime Minister and her supporters  who were actively helping the respondent in his election 381 campaign  and it was these supporters who had taken  to  the

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mean  trick of publication of the pamphlet at  the  eleventh hour before the election so that there could be no effective counter action to the wild propaganda. _Whatever the charges raised  against  the  Prime  Minister  in  the  petition  no evidence  was  adduced  to show that  she  was  helping  the respondent although it may be said that she did not help the cause  of Sri Sanjeeva Reddy in the way she had done in  the case  of  Dr.  Zakir  Husain.   Three,  witnesses  for   the petitioners  stated in their examination that they had  been to  the  respondent’s  house in  Defence  Colony  after  the commencement  of the publication of the pamphlet  requesting him  to  make a statement himself in  contradiction  of  the allegations  contained therein and making it clear  that  he himself  bad  nothing  to do with it.  It  is  difficult  to appreciate  what  led  these  persons  to  think  that   the respondent  had anything to do with the pamphlet or that  he was  the  proper  person to issue  a  contradiction  to  the imputations  therein made against Sri Sanjeeva Reddy.  As  I have  already  noted, the name of the  respondent  does  not occur  at  all  in  the pamphlet nor  is  there  any  remote reference  to  him in it.  The respondent was not  the  only other contestant for the office.  Sri Madhu Limaye, P.W.  8, and  some witnesses for the respondent thought that  it  was the work of enemies of the respondent.  Any statement of the respondent  disowning  the  pamphlet  or  even  asking   the electors  to ignore it would only excite  suspicion  against him as involved in its publication.  Sri N. P. C. Naidu P.W. 17 who claimed to have a copy of the pamphlet from Sri Yunus Saleem on the 11 th or 12th August said that he had gone  to the   respondent’s  house  in  Defence  Colony  to   get   a contradiction  to the pamphlet but could not meet him, as  a result  of the talk he had with the respondent’s  supporters who were there and later wrote a letter to him asking him to counteract  the propaganda in the pamphlet.  The  respondent however  denied  having  received  any  such  letter.   Smt. Tarkeshwari  Sinha P.W. 34, said that she bad gone,  to  the respondent’s house in Defence Colony on the 14th August  and had met him in a verandah and shown the pamphlet to him  and asked  him  to  repudiate  the  contents  thereof  when  the respondent  had  said  "What  can I do  about  it."  As  the respondent was unresponsive she had to come away.  Not  only was this visit openly disputed by the respondent but several witnesses were examined to show that she had not gone there. The   security  man  said  to  have  been  posted   in   the respondent’s  house deposed to the effect that he knew  Smt. Tarkeshwari  Sinha  and was positive that she had  not  gone there on the 14th August.  The respondent himself said  that the suggestion that in the month of August a visitor of  the position of Smt.  Tarkeshwafi Sinha would have been received by him not in the air-conditioned drawing room where he  was sitting  but outside in the uncomfortably hot  verandah  was fantastic.   The respondent’s son-in-law also gave  evidence to the same effect. 382 Sri  R.  K.  Gupta,  P.R.  43, said  that  he  had  met  the respondent two or three days before the date of the poll and told  him  that the pamphlet should be contradicted  by  his party when the respondent gave him the same reply as he  had done  to Smt.  Tarkeshwari Sinha.  Again this  evidence  was denied by the respondent as well as by his son-in-law.   The evidence adduced on the two sides is directly  contradictory to  each other and it would have been the duty of the  court to  analyse  the  same in greater detail  and  indicate  the reasons for accepting one version and rejecting the other if the  court was to take the view that there was  exercise  of

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undue  influence  by  the mere  dissemination  of  a  sordid pamphlet.   In  the circumstances of the case  it  would  be useless to go into the question any further. Another  allied  question  which loomed  large.  during  the examination of the witnesses was whether the respondent  had in  his  election  campaign gone to  Lucknow  and  addressed members  of  the Legislative Assembly  there  and  canvassed their support in his favour basing his claim on the  support of the Prime Minister.  "is was deposed to in a general  way by Sri Ram Singh P.W. 19 while Sri Mumtaz, Mohamed Khan P.W. 44 went further and said that the respondent had told people at Lucknow openly that Sri Sanjeeva Reddy was not a suitable candidate and that there were many stains on his  character. Both these witnesses as also Sri Bansidhar Pandey, P.W.  18, Sri Jagdish Prasad, P.W. 20, Sri Rajendraprasad Singh,  P.W. 21, Sri Basant Lal Sharma, P.W. 22, Sri Rampyre Panika,  P.W 37 and Sri Abdul Saleem Shah, P.W. 38 deposed to the  effect that two or three days after the visit of the respondent  to Lucknow,  Sri Dinesh Singh, the External  Affairs  Minister, had,  also  gone there, met the members of  the  Legislative Assembly in groups of four or five in their hostel known  as Darul-Shafa and openly told them that the respondent was the candidate of the Prime ’Minister and that if’ the addressees did  not  support his candidature they would  lose  all  the patronage  of the Prime Minister in the future.   Some  even Said that Sri Dinesh Singh had threatened- them with refusal of  party  tickets in future elections if they  were  to  go against  the  wishes of the Prime Minister.  So far  as  the part  imputed  to Sri Dinesh Singh is  concerned  he  denied having  moved out of Delhi between the 1st and  16th  August and said that his first visit to Lucknow about this time was on 22nd August after the poll had taken place’ It was put to him  in his examination-in-chief as to whether he did go  to Lucknow  on the 9th, 10th or 11th August and his answer  was in  the  negative  and he averred that so far  as  he  could recollect  he had not gone to Lucknow before the 22nd.   Sri Dinesh  Singh was subjected to  prolonged  cross-examination and  the  diaries  of  his  engagements  maintained  by  his secretaries  were made the subject of close scrutiny  before the 383 secretaries  were made the subject of close scrutiny  before the Court.  The evidence of Sri Dinesh Singh and of  several other  witnesses for the respondent was to the  effect  that whenever Sri Dinesh Singh left Delhi a tour programme  would be  issued  for  the guidance of officers in  places  to  be visited by him and no such tour programme was issued in  the month  of August before the 22nd.  Sri Dinesh Singh  further stated  that  he had attended an invitation to  a  party  at Mysore House given by Sri G. S. Pathak, the then Governor of Mysore.   In this he was supported by Sri I. K.  Gujral  who produced a letter of invitation confirming the throwing  out of a party at the Mysore Home by Sri G. S. Pathak on the  10 th  August and invitation to him thereat and stated that  he distinctly  remembered having met Sri Dinesh Singh  in  that party.   Quite a number of witnesses examined on  behalf  of the  respondent  gave  evidence to the effect  that  if  Sri Dinesh  Singh had gone to Lucknow between the 1st  and  16th August  they  would have come to know of it and  so  far  as their  recollection went Sri Dinesh Singh did not  go  there during that period.  While it is true that the diaries  pro- duced  by  the Secretaries of Sri Dinesh Singh were  not  as full  or  complete as regards his engagements as  one  might expect them to be, I have no hesitation in holding that  Sri Dinesh  Singh did speak the truth in that he did not  go  to

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Lucknow  during the period 1st to 16th August.  It has  come out  in evidence that Sri Abdul Ghani Dar was  preparing  to launch an  election  petition  against   the   respondent practically immediately after the declaration of the  result and  that he was busy collecting evidence in support of  his petition.   Apart from the absence of any tour programme  of Sri  Dinesh Singh it should not have been difficult for  the petitioners  to produce evidence either from the records  of the  railways  or  the Indian Airlines  to  show  that  some reservation  of accommodation had been made for  Sri  Dinesh Singh’s  journey to Lucknow and back at or about this  time. No  attempt was made to produce any such  records.   Counsel for the petitioners even went to the length of suggesting to Sri  Dinesh Singh in cross-examination that it was  possible for him to have travelled to Lucknow from Delhi by road  and come  back the same way so as to leave no record  of  reser- vation either  by  rail  or  by  air.   In  my  view,  the suggestion  is of little value’ After all even according  to the  evidence  of witnesses for the petitioners  Sri  Dinesh Singh’s visit was not a secret one.  He is supposed to  have gone  there to meet people in order to canvass  Support  for the  respondent from a large number of members of  the  U.P. Legislative  Assembly and there was no reason why he  should try  and  ’avoid a more comfortable journey by rail  or  air rather  than undertake motor-car journeys of over 300  miles each  way.  My definite conclusion is that Sri Dinesh  Singh did  not go to Lucknow as alleged by some of the  witnesses for  the  petitioners  at  or about  the  time  alleged  and consequently  he  did not canvass support in favour  of  the respondent as imputed to him. 384 As  regards  the  evidence of the two  witnesses  about  the respondent  addressing members of, the Legislative  Assembly of  U.P.  in  his  own support by saying  that  he  was  the candidate  of the Prime Minister or that Sri Sanjeeva  Reddy was not a fit person for election to the high office of  the President of India, I have no hesitation in holding that it cannot  be  true.  According to the evidence of  Sri  Mumtaz Mohamed Khan, P.W. 44, the persons present at the time  when the  respondent was castigating Sri Sanjeeva Reddy were  Sri Basant  Lal Sharma, Sri Abdul Saleem Shah and Sri  Kalpanath Singh.   Sri Kalpanath Singh was not examined but the  other two  were  and neither of them had anything to say  on  this subject.   According  to Sri Abdul Saleem Shah  it  was  Sri Dinesh  Singh  who had told the members of  the  Legislative Assembly  at  Darul-Shafa that Sri Sanjeeva  Reddy  and  his group were working in collusion with Jan Sangh and it  would not  be  proper to vote for him.  Sri Dinesh Singh  is  also alleged  to have said that Sri Fakliruddin Ali Ahmed  wanted that no Muslim should vote for Sri Sanjeeva Reddy, as he and his  supporters were anti-Muslim.  As I have held  that  Sri Dinesh  Singh did not go to Lucknow at the time  alleged  he could  not  have  canvassed support for  the  respondent  as deposed to by the witnesses. In his evidence the respondent stated that he had not spoken to   the  Prime  Minister  or  any  other  Minister   before announcing  his candidature for the office of the  President of  India.   He had nothing to do with  the  Congress  Party after 1957.  After admitting office of the Vice-President of India  working  as  the President he  had  left  Rashtrapati Bhavan and gone to his son-in-law’s place in Defence Colony. He  had been out of Delhi from the 28th July to 13th  August going  round to the different States : he bad come  back  to Delhi on the 10th August only for a few hours.  He  admitted having  gone to Lucknow on his tour but he did not meet  the

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legislators  there  in groups as suggested by  some  of  the witnesses  but had spoken to them at a fairly  well-attended meeting.   He  denied ever having referred to  Sri  Sanjeeva Reddy  in his speech or said anything about  his  character. He  denied having any knowledge of the distribution  of  the pamphlet   and  stated  expressly  that  nobody   had   ever complained  to  him  that a pamphlet  against  the  personal conduct  and  character  of Sri  Sanjeeva  Reddy  was  being distributed.   He did not see Sri Abdul Ghani  Dar’s  letter alleged to have been written to him on, the 11th August.  He did  not meet the Prime Minister between the 20th  July  and 16th  August.  He said that he had published a programme  of him  intended tour to the capitals of the  different  States like Lucknow, Patna, Calcutta etc. and had informed some  of his  friends  who  were taking interest  in  him  about  his proposed  visits.  He stated further that’ although  he  had toured the States fairly extensively he did 385 not  approach the members of Parliament in Delhi  personally as he was fairly well known to them. Counsel  for the petitioners tried to make out a  case  that the respondent did not do any canvassing in his own  support in  Delhi because he was aware that others were  effectively doing  it.   It  was  even  suggested  that  some  sort   of arrangement  must have been arrived at in July 1969 that  it his  name was not acceptable to the  Congress  Parliamentary Board he would immediately announce his own candidature  for the office of the President.  The respondent stoutly  denied this and said there was no truth in it. In  my view the charges levelled against the  respondent  as mentioned above were not borne out by the evidence, Another  aspect  of the case of the  petitioners  under  the heading of undue influence was that an attempt was made by a number of persons supporting the respondent to raise a scare to  the effect that a vote in favour of Sri  Sanjeeva  Reddy would  be  against the interest of  persons  professing  the Muhamedan  faith.   In  Petition  No.  5  of  1969  it   was formulated in paragraph 13 (c) (iii) to the effect that  Sri Fakhrudin Ali Ahmed and Sri Yunus Saleem had represented  to the  Muslim  voters that Sri Sanjeeva Reddy was  in  fact  a candidate of the Jan Sangh Party and hold out a threat  that if  he  was successful the fate of the Muslim  community  in India  would  be  sealed.   An  instance  is  given  of  the conversation  of Sri Yunus Saleem with Sri Abdul  Ghani  Dar and such influence was said to have been exercised over  all the  Muslim  voters  in  the  country  specially  those   in Parliament.  In the particulars supplied with regard to this pleading  in the petition, it was said that the  threat  was given by Sri Fakhrudin Ali Ahmed to Sri Abdul Ghani Dar, Sri Sher  Khan had Sri Choudhary A. Mohammed at their  residence over  the  telephone  by Sri Yunus  Saleem  to  these  three persons  on the same day in the Central hall of  Parliament. There  was  some amplification of it in the  evidence.   Sri Abdul  Ghani  Dar’s statement in the witness  box  that  Sri Yunus  Saleem  had called him aside in the Central  hall  of Parliament  to convey the threat to Muslims in case  of  Sri Sanjeeva Reddy’s success varies widely from his case in  the petition that such communication was made in the presence of a number of members of Parliament.  Sri Abdul Ghani Dar  had said further that he had been approached over the  telephone by  Sri  Fakhrudin  Ali Ahmed in the  evening  of  the  11th August,  that  Sri Fakhrudin Ali Ahmed had told him  of  the information  conveyed  to him by Sri Yunus Saleem,  that  in spite  of  his warning the witness had decided not  to  side with  the respondent and the Prime Minister and  claimed  to

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have addressed a letter to the Muslim members of  Parliament in this regard.  He also said that he had a talk with Sri I. K.  Gujral early on the morning of the 16th August when  the latter bad told him that the 386 Prime  Minister expected full support from him and  that  if Sri  Sanjeeva Reddy came out successful the  Prime  Minister might  not continue in office and Dar also claimed  to  have sent a telegram to the Prime Minister immediately thereafter appraising her of all this. on his attention, being drawn to the  difference between the pleading and the  oral  evidence about the conversation with Sri Yunus Saleem and being asked to state which of the statements was correct the  surprising answer was that both were correct. Similarly, Sri Choudhary A. Mohamed P.W. 52 spoke of  having received  a telephone call from Sri Fakhrudin Ali  Ahmed  on the 10th or 11th August to the effect that Muslims stood  to gain  in  the event of the respondent’s  success  while  the Muslim  community would be in danger if Sri  Sanjeeva  Reddy came  out  successful  in the election.   According  to  Sri Choudhary   A.  Mohamed  this  telephone  conversation   was followed by personal talk in the office of Sri Fakhrudin Ali Ahmed within the precincts of the Houses of Parliament  When Sri  Fakhrudin  Ali  Ahmed  told  Sri  Sher  Khan  who   had accompanied  the, witness that in cases they decided  to  go against the respondent their claims for Congress nominations in future elections would be ignored.  Sri Sher Khan P.W. 51 spoke  to having received a telephone, call from  Sri  Fakh- rudin Ali Ahmed in a similar way and claimed to have met him at about noon the same day in the Central hall of Parliament when the Minister had emphasised on him the need to  support the  respondent warning the witness that in default  thereof the latter’s name would not be included in Committees of the Houses of Parliament or in future delegations.  This witness had further said that he had received a telephone call  from Sri   Yunus   Saleem  on  the  same  day  when   a   similar conversation-had taken place. It has already been noted that according to Sri Abdul Saleem Shah P.W. 38 Sri Dinesh Singh had held out a similar  threat to him and other Muslims during his visit to Lucknow in pre- election  days,  and evidence much to the same  -effect  was given  by Sri Mumtaz Mohamed Khan, P.W. 44.  So far  as  the last  two  witnesses  are  concerned  I  must  reject  their testimony  as I have-already held that Sri Dinesh Singh  did not visit Lucknow as alleged.  Both Sri Fakhrudin Ali  Ahmed and Sri Yunus Saleem denied having held out a threat to  any Muslim elector as deposed to.  Sri Fakhrudin Ali Ahmed  said that  he had never received any letter from Sri Abdul  Ghani Dar  bearing date the 13th August 1969.  He  further  denied having  spoken to Sri Sher Khan or Sri Choudhury A.  Mohamed as  suggested  by  these two witnesses.   Sri  Yunus  Saleem admitted  having  had a talk with Sri Sher  Khan  about  the Presidential  election but added that when he  was  informed that  Sr;  Sher Khan was committed to Sri  Nijalingappa  and that  he was working for Sri Sanjeeva Reddy the question  of any further talk 387 did  not  arise.   So far as Sri  Choudhury  A.  Mohamed  is concerned,  Sri Yunus Saleem admitted that he used to  visit him  at  his house but no talk  regarding  the  Presidential election   had  taken  place  between  them.   The   witness admitted  having had a talk with Sri Abdul Ghani Dar in  the Central hall of Parliament about the Presidential  election. He admitted having suggested to Sri Abdul Ghani Dar that  he should  consider  whether  it  would  be  advisable  in  the

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interest of democracy and socialism to support Sri  Sanjeeva Reddy  or the respondent.  He further admitted  having  held discussion  with many members of the Parliament both  Muslim and non-Muslim on the question of ’the Presidential election but  it would not be correct to say that he  had  approached only Muslim members as suggested or had appealed to  anybody on  the  ground of threat to an, particular  community.   In connection  with  the  above  a note may  be  made,  of  the statement  of some other Muslim witnesses.  Syed  Ahmed  Aga R.W. 10, a member of the Lok Sabha from Kashmir said that he had  seen people procuring signatures in the name  of  party discipline  in support of Sri Sanjeeva  Reddy’s  candidature and  one  such person was Sri Sher Khan, a witness  in  this case.   Asked whether he had been contacted by any  Minister of the Central Government to vote for the respondent in  the interest  of  the Muslims his answer was  in  the  negative. Evidence  much  to the same effect was given by  Sri  P.  M. Syed, R.W. 13, Sri Asraf Ali Khan, R.W. 27 stated that there was  no  propaganda in favour of any of  the  candidates  on communal  basis  so  far as he was aware and  he  knew  that several  Muslim  gentlemen  were working  for  Sri  Sanjeeva Reddy.  Sri Abid Ali R.W. 33 also stated that no appeal  was made  to him by anybody on communal grounds and similar  was the statement of Sri Mohamed Ali Khan R.W. 35.   Considering the  evidence  as  a  whole  I  am  of  the  view  that  the petitioners have failed to establish beyond reasonable doubt that  any  pressure  was brought to  bear  upon  the  Muslim electors on communal rounds.  Sri Abdul Ghani Dar was out to collect and create evidence very soon after the  declaration of  the  result  and  his  statements  do  not  inspire  any confidence.  In my view he was trying to make out a case  in support of his petition from the very beginning and the tape record  of  his conversation with Sri Jagat Narain  R.W.  25 lends strong support to this view.  There can be no  denying the fact that Sri Jagatnarain had tried to contact Sri Abdul Ghani Dar in order to dissuade him from filing the  election petition.   On the first occasion of the telephone call  Sri Abdul  Ghani  Dar  happened  to be  out  and  the  telephone receiver was picked up by his wife.  According to Sri  Abdul Ghani Dar, Sri Jagtnarain had conveyed an impression to  his wife  that  there  would be peril to him  in  case  Sri  Dar insisted  on  filing the petition.  Sri Dar’s wife  did  not come  to give evidence in support of it and the tape  record of  the conversation between.  Sri Dar and  Sri  Jagatnarain suggests that while Sri Jagatnarain was trying to 388 make out that he had not held out any threat to the life  or limb  of  Sri Dar the latter was trying his best to  get  an admission to that effect from Sri Jagatnarain. I may also note that officers from the Directorate of  Tele- phone  from Delhi were summoned to produce records of  trunk telephone  calls  made  by Ministers in  the  election  days obviously   with  the  idea  of  showing  that   they   were approaching  others for the purpose of active propaganda  in support of the respondent.  The best evidence in this regard would  have  been the statement on oath of persons  who  had been so approached but no attempt worth the name was made in this regard.’ Charges of propaganda on communal basis on the strength  of  conversations  either over  the  telephone  or personally  but covertly can be launched very easily but  in the  absence  of any independent corroboration they  do  not inspire  credibility and on the evidence in this case  I  am not  satisfied  that such charges have been  established  or that  the evidence of witnesses who have spoken  about  such propoganda must be accepted.

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On  the question as to whether the Prime  Minister  exercise any undue influence over Sri Nijalingappa, Sri S. K.  Patil, Sri  Kamaraj,  Sri  Morari Desai -and Sri Y.  B.  Chavan  by threat of serious consequences following their resolution to nominate  Sri Sanjeeva Reddy as the Congress candidate’,  it is  undeniable  that  she was not a little  vexed  with  the attitude  of  those persons in setting up as  candidate  Sri Sanjeeva Reddy when she herself had put forward the name  of Sri  Sri  Jagjiwan  Ram.  Both Sri  Morarji  Desai  and  Sri Nijalingappa  came to the witness box and deposed about  the Prime  Minister having used the words "serious  consequences would follow".  In one of the letters to the Prime  Minister Sri  Nijalingappa had mentioned this to which there  was  no reply.   As the Prime Minister did not come to  the  witness box  to give a denial to this the statements of Sri  Morarji Desai  and  Sri  Nijalingappa must  be  accepted.   But  the question  still  remains  whether  there  was  a  threat  to anybody’s  electoral right at that time so as to  amount  to the  commission  of  undue influence.   Electoral  right  is defined in s. 171-A(b) as the right of a person to stand  or not  to stand as, or to withdraw from being, a candidate  or to vote or refrain from voting at an election.  The pleading does  not make out a case of threat to Sri Nijalingappa  and others  to  refrain from voting at the election  but  it  is limited  to a threat to make them change their  decision  to nominate  Sri  Sanjeeva  Reddy as  the  Congress  candidate. There is no plea of threat to Sri Sanjeeva Reddy to withdraw from  being a candidate. as the threat pleaded being one  to coerce Sri Nijalingappa  and others to change their decision to  nominate does not affect their electoral  right.   There was  no  evidence  of any subsequent  threat  by  the  Prime Minister -and as she herself was responsible for filing  the nomination paper of Sri 389 Sanjeeva Reddy there could be no question of her holding out a threat to Sri Nijalingappa, and others to make them change their decision to nominate a candidate. There  was  no evidence of any undue influence  having  been committed  as  alleged  in  paragraph  13  (c)  (v)  of  the petition.   No  member of the legislative assembly  of  West Bengal or Andhra Pradesh came to give evidence to the effect that  the  respondent or his supporters had raised  a  scare that  Sri Sanjeeva Reddy, if successful in the  Presidential election, would enforce President’s Rule in those States. In my view the plea that a scare was created by the  workers and  supporters  of the respondent to the  extent  that  Sri Kamlapati  Tripathy,  the  President of  the  U.P.  Congress Committee  pleaded  for freedom of vote on the  13th  August 1969 completely departing from his earlier attitude that the members  of the electoral college belonging to the  Congress fold should back Sri Sanjeeva Reddy solidly can be dismissed suMMarily.   Sri  Kamlapati Tripathy R.W. 61 gave  a  cogent explanation for his change of attitude just before the  poll and according to him he pleaded for freedom of vote in order to  avoid a split in the party which was fairly  evident  at that time.  The evidence adduced by the petitioners does not establish that the change of attitude was due to   any scare by the workers and supporters of the respondent as  alleged. The rift in the party became a matter of public knowledge in the  first week of August and the process of the members  of the Congress party arraying themselves in hostile camps went on  practically till the eve of the election.  There was  no evidence of any scare being caused by the commission of  any undue influence. Inasmuch as I have come to the conclusion that the  evidence

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adduced  does not establish the exercise of undue  influence in the election in any of the forms raised in, the petition, the question of the result of the election being  materially affected  thereby does not arise.  But I may point out  that in order to substantiate such a -round for setting aside an election it is not enough for witnesses to come and say that they were shocked or pained by reading the pamphlet as  most of  them gave out.  Only two witnesses came to  the  witness box and said that they had changed their minds to vote  for Sri Sanjeeva Reddy after perusal of the pamphlet.  Mr. Daph- tary argued that there was nothing in the Act of 1952  which forbade  a person from disclosing in his evidence which  way he  had voted and that it was open to witnesses to come  and state  the  reaction  of the pamphlet  on  their  minds  and express  how  it ’had affected their conduct  at  the  poll. While I do not ’think it necessary to express any opinion on this  it  can be safely held that even if the  exercises  of undue  influence  had been proved the evidence of  only  two witnesses  to  show  that their  electoral  right  had  been interfered with 390 thereby  would  not  have been enough  for  the  purpose  of setting aside the election. My conclusion therefore on the issues regarding undue influ- ence  may be summed up as follows.  There was a fair  amount of  circulation  of  the pamphlet, in the  Central  hall  of Parliament  among  members  of the electoral  college  by  a number   of   them.   Undeniably  there   was   considerable publication  of  it by post both to electors  in  Delhi  and outside.   The  mere dissemination of the pamphlet  did  not amount  to exercise of any undue influence  or  interference with  any electoral right.  It had to be followed up  either by  a  personal verbal appeal or an appeal  in  writing  but there  was no evidence thereof in this case.  There  was  no appeal  to Muslim members on grounds of religion to vote  in favour  of  the  respondent in preference  to  Sri  Sanjeeva Reddy.  There was no evidence of exercise of undue influence by  Central  Ministers  over any members  of  the  electoral college  by any threat that in case they failed to vote  for the  respondent they would lose the patronage of the  Prime, Minister.  The offence of undue influence was not  committed by  the  respondent or any of his workers.   The  respondent himself was not guilty of any such commission.  There was no commission of the offence of undue influence by anybody with the  connivance  of  the respondent and the  result  of  the election  was  not materially affected as a  result  of  any commission of the offence of undue influence. As regards issue 4(a) in Election Petitions 4 and 5 of  1969 my view   is that some of the allegations made in paragraphs 8(3) and (13)  of the petition would be sufficient  pleading of commission of undue influence under s. 1 8 (1) (a) of the Presidential and Vice-Presidential Elections Act, 1952.   As regards   issue   4(b)  the,  only  allegation   which   was substantiated   was  a  fair  amount  of   publication   and dissemination  of this scurrilous pamphlet which  by  itself did  not  amount to the exercise of  undue  influence.   Sri Abdul   Ghani  Dar’s  evidence  on  this  point  is   wholly unacceptable.   My answer to issue 4(c) in all its  branches is in the negative. We  indicated on the 11th May 1970 that we would  not  award any  costs to either side.  As the respondent has  succeeded in the petition normally he could expect to get an award  of costs in his favour.  But one cannot overlook the fact  that the  bulk of the oral evidence in this case  centered  round the  question  as to whether there was  publication  of  the

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scurrilous  pamphlet in the Central hall of  Parliament.   A very  large  number of petitioners’ witnesses came  to  give evidence  in support of it while the respondent  examined  a host  of witnesses to disprove this fact.  Although in  the view  I have taken it was not necessary to name the  persons who  were  guilty  of such  publication  I  have already indicated that quite a number of                             391 members  of Parliament was responsible for it.  The  hearing of this case was protracted unreasonably by the  examination of witnesses on this one question and as the respondent  has not succeeded in disproving dissemination of the pamphlet in the  Central hall it could not be right to make an award  of costs  in  his  favour.  The litigation was not  one  of  an ordinary type and it was conducted with great zeal on either side.   It  has divulged a sad lack  of  responsibility  and uprightness  in  the elected representatives of  the  people figuring  either  as  witnesses for the  petitioners  or  as witnesses or the respondent.  In a case like this where both sides  are  responsible for putting into the witness  box  a large number of persons who deliberately gave evidence which was  not true, the proper course is not to award costs  even to the successful party. G.C.                       Petitions dismissed. 392