TMI Blog1974 (8) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... embly last from the same constituency in 1967, at the following general election in May 1968 to the same Assembly (before its term the Assembly was dissolved and the non-Congress Government went out of office) the first respondent was elected and he became a Member of the Cabinet formed by the Congress party. The next election fell in 1972 where both figured as combatants from Nuh and we are concerned with the validity of the result declared in favour of the appellant by the returning officer in the present appeal, the High Court having set aside the election. 2. It is apparent that the competitive politics of the Nuh constituency has expressed itself through the appellant and the first respondent for quite a long time now and as the voting figures of the latest poll shows, the context has been contentious and close. In such battles of the ballot where personal feuds foul the air, the decencies and norms set by the law may often be the first casualty. Anyway, the disappointed first respondent hastened to challenge the appellant's election on various grounds of corrupt practices . The High Court has upheld a few of them and voided the appellant's election, a miss being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right but only when it is wrong. We will view the case from this angle. 5. In a loose sense, Nuh is a Muslim constituency by which we mean that the voting strength of the Muslims is preponderant. Both the candidates are Muslims and, indeed, to some extent the Islamic dosage of each candidate has itself been highlighted in the Election Petition as a bone of contention in the poll confrontation, as will be presently discussed. Had parties professing secular politics and revolutionary ideologies never stooped to conquer by sub rosa appeal to the religion and caste of blocks of voters by exciting their sympathy for the candidate via this sense of tribal identity, our elections would long ago have lived down this injurious political irrelevance. On the contrary, the unerring instinct with which political parties frequently choose candidates whose religion or caste tallies with that of the bulk of the constituents appetites , if not excites, covertly, if not overtly, the caste consciousness and religious separatism otherwise asleep in the bosoms of the common people. In the name of pragmatism many parties offer allegiance to the super-party--Caste and the law (Sections 123 125 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embly constituency: Notki Gohana, Khedli Nuh, Mewli, Malab, Nagina, Karherrha, Piangwan, Bhadas and Ghagas. It is conceded before me that the appeal just above found by me to have been made by the returned candidate was an appeal to vote for the returned candidate and to refrain from voting for the petitioner on the ground of their religion, for the furtherance of the prospects of the election of the returned candidate and for prejudicially affecting the election of the petitioner so that it falls within the ambit of the corrupt practice detailed in Section 123(3) of the Act, which corrupt practice the returned candidate must be held to have committed. The issue is accordingly found in favour of the petitioner. * * * * From the evidence accepted by me as trustworthy under that issue it is further made out that practically all those statements with slight variations were made the subject-matter of speeches by the returned candidate and, with his consent, by Shri Tayyab Hussain, which speeches were delivered to gatherings in the said ten villages. The publication of those statements by the returned candidate and by Shri Tayyab Hussain, with his consent thus stands ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch it expressed thus : As a result of the above discussion I. find it proved that on the 14th of February 1972, the returned candidate placed at the disposal of respondent No. 3 Car No. DLF 675 with a promise that these expense incurred in hiring the car and running it in connection with the election campaign of respondent No. 3 would be met by the returned candidate. Thus it is seen that while the embittered petitioner has black-brushed his rival with many brands of corrupt practices, he has failed to convince the Court on several of them. His counsel gave up many of the charges after evidence had been led. Even the residue has not fully found favour with the High Court and the only substantial grounds which have survived the screening process are two, viz : (a) the 'automobile' bribe; and (b) the dissemination of prejudicial and prohibited appeals. The limited controversy before us centers round the certitude of this fatal modicum. The election law invalidates a poll verdict if a single illegal adulterant has been admixed in the campaign. The law is jealously qualitative, not clumsily quantitative, in its nullification test and two vices or twenty are the same in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oof is necessary. The burden is therefore heavy on him who assails an election which has been concluded. 12. There are many who are cynical about the enforcement of the election law, which is too moral for the pragmatic skills of the politicians when locked in pitched battles. They regard these vices as inevitable and therefore remain indifferent to their prevalence. Sydney. Harris' statement in this context is apposite: Once we assuage our conscience by calling something a 'necessary evil', it begins to look more and more necessary and less and less evil. For this very reason the Court has to be stern so as to induce in the candidates, the parties and workers that temper and truthfulness so appropriate to the process and not bewail, as the Report of the Fifth General Election in India (1971-72, issued by the Election Commission) does (at p. 198 thereof): But how can we expect that elections will be absolutely and totally corruption-free when the whole country in every sphere and department of life and activity is plunged in the ocean of corruption ? It is everybody's complaint that there is no business, trade or industry where black-marketing or bribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tensify their differences by bringing them into political action where they are irrelevant, if not disturbing. A wise election system would invite them to forget these distracting prejudices. 15. The 1st respondent's case is that the appellant persuaded a financially incompetent Sohanlal--respondent No. 3--to stand as candidate over-ruling his reluctance by offer of ₹ 125 and promise of footing his campaign bill, in a bid to skin away the Harijan pro-Congress votes. This was on February 9, 1972. Since the lower Court has rejected this episode, we too ignore it. But the official date for withdrawal, February 14, found the hesitant Sohanlal hovering around retirement from an expensive context. The 1st respondent's story is that the appellant gave a shot in the arm by proffer of ₹ 1,000 and a car for use till the election was over. This stroke of bribery continued the Harijan candidate in the arena. The finale of this shady chapter, disbelieved by the Court, is that a couple of days before the actual poll the appellant purchased Sohanlal's retirement and exhortation to his followers to support the appellant at a price of ₹ 2,000 paid on March 10,1972. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... primary and announcement of the choice will ahead for the constituency to know and understand the candidate likewise if Party cadres work constructively and continuously for solution of peoples' grievances instead of going into election-eve campaigning with all the sound and fury of hectic pre-poll duel to win votes, the project will cost less and vote-catching stratagems will yield poor pay off. Large pecuniary lay-out in the business of power politics must be arrested if the system is not to sink. Today, the average Harijan, like Sohanlal, has as much chance of winning an election as a camel has of passing through the eye of a needle. Naturally he looks around for help. Money is of key importance if enormous sums must be spent to reach the vast electorate to break down public inertia and secure substantial polling. In such a background Rahim Khan (R1) is alleged to have prayed upon Sohanlal's inability to finance his election by offering the sinews of war thereby indirectly deriving good negative return for his money. Sohanlal himself has backed a good part of this case, so far as the giving of a car is concerned. Straight from the horse's mouth, as it were, we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on relates to the multi-pointed propaganda violating, the canons of election law set out in Section 123(2), (3) and (4). Question of law about the correct construction of the relevant provisions arise but the primary issue is one of fact. Were public meetings held on 9th and 10th of March maligning orally and through handbills the Congress candidate for lack of personal morals, for heathen and bohemian ways and for being a potential danger to good mussalmans ? Were pamphlets like Ex. P-3 made and distributed on or about March 9 and 10 by the returned candidate and his agents, describing his Congress rival as a pork-eater and taker of virginities, as a coercive agent getting muslim graves dug up and forcing true muslims eat roast pig ? 20. A few phenomena appear in this case which deserve judicial notice for the purpose of appreciating the evidence on this branch of the story of corrupt practices. Both the contesting parties, the appellant and the 1st respondent, are strong men with considerable hold on large numbers of people in the constituency, as the polling result reveals. Both of them have been in and out of office and naturally the bid for power would whet their appetite. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng persons who gathered when he went to a place, his sitting on a cot and talking impromptu to the men who turned up within a short time and leaving the place after a little while. It is difficult to describe these tiny groups spontaneously assembling and melting away after quarter of an hour or so, as public meetings. Technically they may or may not be breaches of the ban order but such minor liberties are not infrequently taken by both sides and winked at by the police, lest genuine house-to-house propaganda by the candidates and their supporters on the very last day should be interfered with and tension mount up on the ground that the authorities thwarted a non-Congress candidate's canvassing. Certainly we have to bear in mind the circumstances mentioned earlier in evaluating the evidence of witnesses, giving the benefit of reasonable doubt to the appellant. 22. Many witnesses examined in support of the 1st respondent's case are partisans, being the polling agents, counting agents of workers of the Congress candidate. Their evidence has naturally to be viewed with circumspection, but not dismissed outright [See Ambika Saran Singh v. Mahant Mahadev Nand Giri 41 E.L.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estimony of a person does not mean that he is a perjurer. It merely means that on such testimony it is not safe to conclude in a quasi-criminal proceeding that the 'corrupt practice' has been proved beyond reasonable doubt. The whole constituency is silently present before us it must be remembered (See observations of Dua I, J. in I.L.R. 1969 I Punj 625.) 24. We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a dozen witnesses apparently respectable and dis-interested, to speak to short of simple episodes such as that a small village meeting took place where the candidates accused his rival of personal vices. There is no x-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkennycat election competitions and partisan witnesses wea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sohanlal's near-confessional evidence from the area of reliable testimony. Whatever his role before the election, his written statement and evidence smack of the 1st respondent's vocabulary and either he is a fool or a knave or too truthful to be credible. For he admits receiving a car and expenses from the appellant, pleads to a mood of withdrawal and in evidence lends lip service to distribution of the objectionable handbills and to a last-minute withdrawal from the election at the instance of the appellant. All that we need say is that his word does not have the ring of reliability and we leave it at that. 27. Yet another aspect of the case may be dealt with here, to clear the deck for a consideration of the serious issues that survive. Running right through the war and woof of the petitioner's averments and evidence and haunting the political life of the petitioner for long years is a sitting Member of Parliament on the Congress benches, R3 W9, Tayyab Hussain. He is charged with visiting village after village with the appellant an ex-Congressman and now the bitter-opponent of the Congress candidate to deliver vicious personal attacks on the petitioner, a Ministe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phlet publicity, it will depress the victim's chances and may amount to an appeal to religion. Both the candidates are Muslims but one is less muslim than the other almost a kafir because he eats pork. The other imputations in the handbill relate to character assassination and undue influence which we will refer to presently. 29. We may as well set out here Ex. P.W. 4/3, the offending handbill: INTRODUCTION OF CH. KHURSHID AHMED AND SOME QUESTIONS TO HIM. 1. You being a Muslim got dug a grave of a Mohammadan and got the dead body out due to your personal enmity, which is against Islam and its Shariat. Do you still claim yourself to be a Muslim ? 2. Since you have become a Minister you have taken bribery from the public for each work of the public. Do you call this public service ? 3. You being Health Minister violated the modesty of numerous lady doctors and nurses and till they did not surrender their body to your lust you did not do any of their works. Do you want to be elected again so that you can continue your debauchery 4. You while being a Minister got some Muslims of village Utawad arrested on allegations of cow slaughter and made them to eat meat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling in Kultar Singh v. Mukhtiar Singh [1964]7SCR790 and the popular sentiment tied up rightly or wrongly with Muslim religion, we do not disagree with the view of the High Court and the stand of both counsel. The secular texture of the law is primarily the legislator's responsibility although Caesar and God should not get mixed up in areas of food, clothing and housing and other temporal matters not inherently interlinked with man's communion with the Supreme. What is appeal to religion depends on time and circumstance, the ethos of a community, the bearing of the deviation on the cardinal tenets and other variables. To confound communal passion and crude bigotry with religion is to sanctify in law what is irreligion in fact. It is good to remind ourselves of Roman Rolland on Ramakrishna, quoted in Nehru's Autobiography : ...many souls who are or who believe they are free from all religious belief, but who in reality live immersed in a state of super consciousness, which they term Socialism, Communism, Humanitarianism, Nationalism and even Rationalism. It is the quality of thought and not its object which determines its source and allows us to decide whether or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of our Constitution. It is this condemnation which is reflected in Section 123(3) of the Act. In spite of the repeated condemnation, experience has shown that where there is such a constituency it has been unfortunately too tempting for a candidate to resist appealing to sectional elements to cast their votes on caste basis. Every Party silently says He who has not sinned, let him cast the first stone ! For the purpose of this case, suffice it to say both sides agree that Ex. P.W. 4/3 appeals to religion. 32. Of course, if Ex. P.W. 4/3 had been circulated it did contain personal vilification like womanizing which in most countries and among the current generation is a vicious personal imputation under Section 123(4) of the Act. So we will ascertain whether on March 9 and 10, handbills like Ex. P.W. 4/3 had been published by Rahim Khan and his agents. The rival version is that the appellant was innocent of these leaflets which must have been concocted after defeat by the 1st respondent for demolishing the election through Court. 33. Many materials have been marshalled to make out factum of pamphlet publicity. The granite foundation for it is laid by Ex. P. 18, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection. Both Ex. P. 18 and Ex. P. 19 became inexplicable on that basis unless many public documents and public servants have tampered with truth in a chain conspiracy too nefarious to be credible. Some officers may oblige but it is unfair to impute such gross misconduct to responsible men and flimsy fancies. Other minor attempts to cavil at the evidence on this part of the case merit little serious study. We broadly agree with the High Court that the arguments of the appellant for rejection of Ex. P. 18 and P. 19 and connected documents cannot be contemplated without importing criminal conspiracy for which there is no foundation and they must be repelled. However we will advert to them briefly. 34. We have earlier indicated our dissent from the High Court when it trusts P.W.s 12, 13, 20 and 23 as reliable on leaflet distribution because they Were pre-election agents of the opposite party. The Court observes: The evidence above set out under this head is fully acceptable to me. I am specially impressed by the depositions of Din Mohd. (P.W. 12), Roshan (P.W. 13), Mohd. Khan (P.W. 20) and Habib (P.W. 23). All of them worked for the returned candidate during the election and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. Counsel contended vehemently that officers are liable to be pressurised and when a whole election turns on documents in the custody or writing of officials, free and fair elections and their survival through election petitions become precarious. He drew our attention to the observations of Grover, J. in P.R. Belagali v. B.D. Jatti [1971]2SCR611 which make a vain echo in the present case. The learned Judge there observed : Free and fair elections are the very foundation of democratic institutions and just as it is said that justice must not only be done but must also seem to be done, similarly elections should not only be fairly and properly held but should also seem to be so conducted as to inspire confidence in the minds of the electors that everything has been above board and has been done to ensure free elections. It will be a sad day in the history of our country when the police and the government officers create even an impression that they are interfering for the benefit of one or the other candidate. This is particularly so if a candidate is holding an important position or assignment like respondent No. 1, who at the material time was a Minister in the State. 37. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds on the facts and circumstances of the case. It depends on the overall circumstances and the fairness of the trial. The observations in Ambika Saran Singh's Case(Supra) at. P. 190 are apposite : The question as to the extent of particulars which the Court would demand depends on the circumstances of each case, the nature of the charge alleged and the quality and reliability of evidence before it. 39. While the Court must be careful to insist that the means of knowledge are mentioned right in the beginning to avoid convenient embellishments and irresponsible charges, it should not stifle good and reliable testimony or thwart proof of corrupt practices by the technicalities of procedure. We agree with the observations made in Balwan Singh v. Lakshmi Narain 22 E.L.R. 273 and are not deterred from considering the evidence of P.W. 54 and others similarly circumstanced. No prejudice on account of deficiency in particulars is made out. We have already, indicated that we would not be prepared to base our conclusion solely on the testimony of such a witness as P.W. 54. but that does not mean that we should blackout all evidence where the witnesses are liable to some criticism a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o negotiate with elective opportunities. 42. Even at this stage we may notice that the handbill in question does not contain the name of the printer and publisher although the election law so requires. Unfortunately when such printed material is circulated there is no agency of the law which takes prompt action after due investigation, with the result that no printer or candidate or other propagandist during elections bothers about the law and he is able successfully to spread scandal without a trace of the source, knowing that nothing will happen until long after the election, when in a burdensome litigation this question is raised. Timely enforcement is as important to the rule of the law as the making of legislation. 43. We may conclude by holding that we accept Exhibits P.18 and P. 19 as genuine and concomitantly find that the handbills containing injurious statements were in existence on or before the 10th of March, The only question that remains is whether a nexus is established between these handbills and the appellant and the factum of their pre-poll circulation by him or his agents is proved. Without this latter requirement being made out, mere leaflets do not spell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he polling station he made a note on the reverse of Exhibit P. 6 which runs: Shri Samad Khanji, Very few voters are coming from your village. The time left is short. Have the voters sent quickly. Nangal Shahpur. Din Mohd. Dated, the 11-3-1972 He wants us to believe that finding that the voters of Nangal Shahpur had not turned out he sent this note to Samad Khan, a worker of the returned candidate. But how did this P. 5 get back into the hands of Din. Mohd. while it should normally have been with Samad Khan ? To fill up this gap P.W. 75, Sharif Khan is pressed into service. He has a story that one Subhan Khan delivered it to him and he, in turn, gave it to the advocate of the petitioner in the course of the trial of the case. Hew can Exhibit P. 6 with the valuable endorsement Exhibit P. 5, move to and from Subhan Khan (not examined) to Sharif Khan, P.W. 75 ? The obliging Din Mohammad, who had come under the spell of the 1st respondent must have made this tell-tale endorsement during the pendency of the case and the document itself is kept back till a surprise is sprung when P.W. 21 is in the witness box--for too unfair for us to place reliance. One lie leads to anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s this Raj Khan leaves it outside and goes inside to get a cup of tea for P.W. 75. When his back is turned, the man with little scruples, P.W. 75, abstracts this letter and Raj Khan never bothers about the loss. The tortuous course of Exhibit P. 3 is too true to be credible. There is some more oral evidence of this devalued class. We do not think we can base our conclusions safely on salvaged bits of testimony of this contaminated sort. 46. There is also oral evidence identifying the signature of the returned candidate on Exhibits P. 3 and P.W. 11/1, particularly in the deposition of Habib, P.W. 23. He has not spoken to his familiarity with the handwriting of the appellant. Opinion evidence is hearsay and becomes relevant only if the condition laid down in Section 47 of the Evidence Act is first proved. There is some conflict of judicial opinion on this matter, but we need not resolve it here, because, although there is close resemblance between the signature of Rahim Khan on admitted documents and that in Exhibits P. 3 and P.W. 11/1, we do not wish to hazard a conclusion based on dubious evidence or lay comparison of signatures by Courts. In these circumstances, we have to sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eetings. But to disbelieve a witness because he came, without summons, as the trial Court has done, is altogether wrong. Even so, the evidence of R1W13, R1W14 and R1W15 was rightly rejected by the trial Judge as useless. However, we are satisfied that no ground exists to disbelieve P.W. 45, an apparently disinterested person. The non-mention of every name in the affidavit in support of Election Petition is no ground to reject witnesses. P.Ws. 45 and 47 sound natural and disinterested and no reason exists to discard their evidence regarding the nocturnal circulation of printed handbills like, P.W. 4/3. No formal meeting was held, no chair, no mike, no announcement nor even petromax light. Not the speeches, but the distribution of pamphlets is the credible part of the case. The former depends only on the oral testimony of witnesses, the latter is reinforced by actual handbills. The same thing holds good regarding the villages where positive findings have been recorded by the trial Court. We think that irrespective of the election speeches by the appellant and R3W9, which may or may not be true the last minute circulation of handbills, must be accepted. 48. We are aware, as noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder these two heads, a contravention under Section 123 of the Act has been committed and for these two corrupt practices the unseating of the appellant becomes inevitable. 52. We may mention here that while meticulous criticism has been made by both sides of the numerous witnesses examined in the case, not the many ripples but the major waves shape the course of the stream in our view, so that we have paid more attention to the broad sweep of the evidence rather than the little details picked up here and there and magnified before us. Therefore, while not endorsing the entire findings of the High Court, we uphold two of its major findings--of corrupt practices--sufficient to undo the election of the appellant. Further in this case the first respondent cannot claim to have been clean in alleging untenable corrupt practices and adducing sheddy evidence. Where both sides have soiled their hands in the legal process, both must bear their individual burden of costs. 53. One last disquieting reflection is prompted in this case. If a blatant corrupt practice is committed during an election, there is now no clear statutory mechanism which can contemporaneously be set in motion by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent to this requirement of the statute. If only at the end of an election case where verdicts on corrupt practices are rendered, Courts would name all those involved in the pollution of the electoral process, there would be some hesitation on the part of citizens in executing these improper projects. 55. Counsel for the 1st respondent in this case suggested to us that the distributors of pamphlets or, for that matter, even the authors thereof may easily escape punishment of 'naming' by proving that since responsible candidates had made such speeches, they did not believe the statements to be false or even believed them to be true. We are clearly of the view that belief in this context means reasonable belief and not easy fancy or foolish credence. Unless the distributor of mala fide statements establishes that he had reasonable grounds in support of his belief, the Court will not accept his plea and will name him. It is therefore plain that Section 123(4) read with Section 99 cannot stultify the provision for naming of men who deserve to be named. 56. However, in the present case, we have held that neither R3W9 (Tayyab Hussain) nor the third respondent (Sohanlal) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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