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A B c D E F H smv KIRPAL SINGH v. SURI V. V. GIRi September 14, 1970 WITHCONNECTED PETITIONS 197 [S. M. SIKRI, J. M. SHELAT, V, BHARGAVA, G. K. MITTER AND C. A. VAIDIALINGAM, JJ.) Presidential and Vice-PresidentialElection Act 31 of 1952-Part [II of Act whether ultravires Art. 71(1) of Constitution of India 1950- E14ction ·of Presidentwhether can be challengedon grounds other than tho•e mentioned ins. 18-Validity of s. 5(2)-Section whether ultra •ires Art. 58 of Constitution-Candidatesigning his nomination paper before propour or 1econder-Nomination paperwhether liable. to be rejected Valitfily of s. 21-Whether section suffer• from vice ot.excusive delega tion of /qislative power-'Undue influence'in s. 18 mean. l.nng of-Stllte. mentl within purview of 's. 171 G of Indian Penal Code whaher can ll/80 ·/till Ultder s. 171C-Connivance by candidate of exercise orfl'ldt¢ ftt/111- """ by others,proof-MateriaJ.effect on e/ectian,.proof-,Jlrlbery,evi dence of. · eon-Election Petition-When costs may be r1/U111d. l'raUrnlf41 Giid YlcH'rellhntlaJE/1ctlon Ru/Q, 19$2.-Yalldlty of It"'- 4(1)11111 4(2)-R1qulrem1n1 that nomination pop. 11· m1111 bl llC•· compulil by ~ copy of •ntry In •lectoralroll nlatlnl to -ca~ wlwllwr .,.,,,.,,Mil 1WHJonabl1and ultra vlre1 1, 21 o/'11.t:t 31.of1'i£. _,..,,.,, of ,.,, 4(3) and 6(3)-R1qulr•mmt that llector ilitdl not aulllcrllMwh•th•r tu prOpoJIT or 11COllUr more than On• nomlnatllln paper- 111 ony lkctlon,wh1th., contraven.1 1. 5(2) of Act 31 of 1952- Ctrtl/lld copy of •lectora/ roll •nlry r1latlnr to Ctvidldiit-Who can ln11e. Corutlt.ition. of India, 1950, Art. 58-Age of candidate for ll#lce of Pru/dent of lndia,-Mlnlmum age pre1erlbed as 35 year1-Entry In elec toral roll showingcandidate'• age tit above 35 yearl--Candldate'•own llllte nwnt as to date of birth showinghe Is below 35 year1-Rejectlon of nomi nation paperwhether Justified. Corutitutlan of India,1950, Arts. 54, 367, 372 and 372-A-General ClalltesAct, s. 3(58)-Unlon Territorywhether 'Stale' withinmeanln1 of Art. 54-Elected members of Legislatures of UnionTerritorieswhether nuut be Included In Electoral College for election to office of Prelldem of lndla. -· The election to theoffice of President of Indiaheld in August 1969 was challengedin five election petitions filed in thisCourt. The main question that fell for considerationwas whetherthe distribution of an anonymou. pamphletmaking defamatory statements about one of the candidatesat theelection,in the manner alleged by the petitioners. amount. ed to exercise of undue influencewithin the lneaning of a. 18' of the Presidential and Vice-Presidential Election Act 31 of 19$2 read with 1. 171 C of the IndianPenal Code.In thisconnection the Court bad further to decidew.hetherthe pamphletwas published llld dlltriboted by Ille win ning candidate or with his conniTaoce, bv his aupportem, and whether the result of the election was materially all'ecled by the publication and diltri bution of the ~ in question. The other questions of lawthat fell far conaideration were (i) wbelher Part Ill of Act 31 of 1952 had ,. '.:..· SUPREME COURT REPORTS [1~71) 2 S.C.R. the effect of curtailing the jurisdiction of this Court under Art. 71 (I) of the Constitutionand wastherefore ultravires; (ii) whether an election under the Act couldbe challengedon groundsother than thosementioned in s. 18 of Act31 of 1952whichfell in Part Ill thereof; (iiir whether s. 21 o'f the Act was voidbecause of excessiYl' delegation of legisl:i.tive POl'er; (iv)whetherr. 4(1) was ultra vires s. 21 andalsovoidbecauseit wasarbitraryand unreasoMble; consequentlywhether r. 4(2) was void; (v) whetherthe prohibitionin' r. 4(3) on an electorproposing or second ing more than one candidatewas ultra vires s. 5(2) of Act 31 ·of 1952; consequentlywhether s. 6(3) was void; (vi) whethernominationpaper of one of the candidateswas rightlyrejectedwhen the electoralroll showed the candidate'sage as above 35 years·but thecandidate's own statement us to his date of birthshowedthat he wasbelow35 years;(vii) whether certifiedcopy of entry in electoralroll relatingto candidatemust under theRulesbe issuedeither by theElectoralRegistration Officer. or the Assistant Electoral' RegistrationOfficer; (viii) whethera nominationpaper signedfirst by thecandidateand thereafter by his proposerand seconder couldbe treatedas valid;(ix) whetherthe electedrepresentatives ·,qf the Legislatures of UnionTerritoriesarc entitledto beincluded ii. ·. the ElectoralCollege for theelection of Presidentof India o" thefooting that theword'State'includes ·Union Territories';(x) whether s. 5 (2) of Act 31 of·1952 is ultra vires Art.58 of the Constitution;(xi) whetherthe -s. (2). Sub-a. (3) throv.~ a great deal of lighton thisquestion. It proceedson theassumptionthat a decla ration of publicpolicy or a promlSC of publicaction or the mere exercise of a legalrightcan interferewith an electoralright, and therefore it provi ues that if there is nointention to interferewith the electoralright it ahall not be deemed to beinterferencewithin the meaning of thissection.Such adeclarationof public policy or the promise. of publicaction can onlyact and tencl tointerfereat the stage•when a voter is tryingto make up his mind as to whichcandidatehe wouldsupport.[225 11--Dl Sub-s. ( 3) further proceeds on the basis that t!Je expression "freeexer cise of theelectoral right" doesnot meanthat a voter is not to be influenc ed.Thisexpressionhas to be read in thecontext of an election in a demo craticsociety and the candidates and their supporters must naturally be allowed to canvasssupport by all legal and legitimatemeans. This exercise of the rightby a candidate or hissupportersto canvasssupportdoes not interfere or attempt to interferewith the freeexercise of the electoralright. What does howeverattempt to interferewith the exercise of an electOral right is "tyranny overthe mind". If the contention of therespondent was to be acceptedit wouldbe quitelegitimateon the p(U't of thecandidate or his supporters to hypnotise a voter am: then·sendhim to vote. At the stage of castinghis ballotpaper there wouldbe nopressure cast onhim because his mind has. alreadybeen madeup forhimby the hypnoti&er. [225 E-GJ Froma reading of s. 1710 it is clearthat in pursuit of purity of elec tionsthe legislature frawned upon.attempts to assailsuch purityby means of falsestatementsrelevant to the personal character and conduct of the candidateand madesuch acts punishablethereunder.But the factthat making·orsuch a false statement is a distinctoffence under s. 171 G does notandcannotmean that it cannottake the graverform of undue inlluence .punishableunder s, l 71F. The falsestatementmay be of such virulent. vulgar or scurrilous characterthat it wouldeither deter or tend to deter votersfrom supportingthat candidatewhom they would havesupported in the freeexercise of theirelectoralright but for theirbeingaffected or attempted to be affectedby themaker dr thepublisher of such a statement. Therefore, it is the degree of gravity of theallegationwhich will be the determiningfactor in decidingwhether it fallsunder s: 171C ors. 1710. If the allegatio~. though ~alse and relatingto a candidate'spersonal chmc ter or conduct, made with the mtent to affectthe result of an election doesnot amount to interference or attemptat suchinterference,the offenc~ would be the lesser one. u, on theotherhand, it amount A attachedto the bill which ultimatelyresulted in theenactment of Ch. IXA of theIndian Penal Code,and by a number of decisions given on similar statutoryprovisions.[226 B-Hl Amritsar City '(Mohammadan) ConstituencyCase No. 2-The Indian ElectionCases ( 1935-50) Dobia Vol. II, 150-157; .Tujhar Singh v. Bhairon Lal 7 E.L.R.457, 461; RadhakantaMishra v. Nityanand Mahapatra, 19 B E.L.R. 203, and Baburao Patel v. Dr. Zakir HusMn, [1968J 2 S.C.R. 133, 145. referredto. (b~ On the evidencein the case it must be held thatthe pamphletin question was distributed by postand in the Cent'ral Hallof Parliament by some membetsof Parliamentand there was wide rliscussion aboutit inthe CentralHall. The allegations in the pamphlet, made againstone of the losingcandidateswere coveredunder s. 171C I.P.C. even if they may be C coveredunder s. 1710. (231 F; 257 BJ The argumentthat the pamphlet could notcome under'· 171Cbecause it was anonymouslydistributed was fallacious. A series of anonymous attempts in acountry like ours would have as muchif notmore, effect all oneopen powefful attempt. It would be dangerousto providea sanctuary foranonymousattempts. Moreover, when members of Parliamentdistri- butea pamphletin theCentralHall it has the same effect as if theyhadD endorsedthe pamphlet in writing. {231 HJ Accordinglyit must be held thatthe dist'ributionof thepamphlet by post as also distributionin theCentralHall constitutedan attempt to in· terferewith the freeexerciseof therightof votewithin s. 18 of the Act. [232 CJ (c)There was howeverno evidenceto show that the respondenthad E any connection with the pamphletor with its distribution.Nor was iilere any evidenceto showthat anyoneconnected. with the dist'ributioneither throughthe po;,t or in theCentralHall had any conta.ct withthe respondent, er thathe distributedit with his knowledgeor connivance.(257 )).,-,BJ ' . ' " (d) It is well settled that the burdenof provingthat the resultof the electionhas been materially affected is OD. the petitioners. As held by this F Courtin SamantN. Balkrishna v. GeorgeFernandes, the mattercannot be decided on possibilityor reasonablejudicial guess. There was no justifica- tionfor over-rulingthat decision. (265 D-266 CJ Vashist Narain v. Dev Chartdra, [1955J 1 S.C.R. 509, Mahadeo v. Babu Ud"iPratapSingh; A.I.R. 1966 S.C. 824, Paokai Haikip v. Rishan11 C.A. ;,,..,, 683/195S dt. 12-8-1968, G.K. Sama/ v. R. V. Rao, C.A.No. 1540/69 dC20cM970', Stmndra Nath Khosla v. DalipSingh, [1957] S.C.R. 179•, G relilid:on". · ··"·,;. : •. · . Sama111 N. Balkrishna v. GeorgeFernandes, A.I.R. 1969 S.C. 1201, n:- lf. . ·lllrin~· · .. ·.·· .. ·.. . . .. · . ,~(:,';:';')';o;i th~ ~ide~ee in tlie presentcase it wasdifficult to holdthat the peti· "? · < · : tionej-S had proved that.the publicationand disfribution of the pamp~l·et :· • : ·imteriallyaffected the resultof theelection. . It only le~ds. to the conclusion H k.i-.'.:· r thaht:probabl)' did have some effectbut the vast ma1onty of t.he electo~s · wet'e ablio to throw oft' the effect of thepamphletand v~te accordmgto their ~wrt personal wish or according to themandateof their party. [269 B-CJ A B c D E F II S, K.SINGH v. SHRI V.V. GIRI 201 Per Bhargava, J. : Sub-section (I) of s. 171 C ingeneralterms make$ any act an 'undueinlluence' ·lf it interferes or attemptsto interferewith the free exerciseof anyelectoralright and if it is committedvoluntarily. The electdral right accordingto thedefinitionin s. 171A(b) is the rightof a voterto vote or refrainfrom voting. Undue influencecan be heldto be committedif thepersonchargedwith the offenceinterferes or attempts to interfere wit!i the fr.:e exerciseof thisrightof voting or refrainingfrom voting.When an electorexercisesthe rightof voting it canbe envisaged thathe goes throug.'1 thementalprocessof firsttakinga decisionthat he will votein favourof a particularcandidateand thereafter, having made uphismind,he hasto goandexercisethat electoralright by castingthe votein favourof thecandidatechosen by him.The languageused in s. l 71C indicatesthat the offenceof undueinfluencecomes in at thesecond stage when theoffenderinterferes or attemptsto interferewith the free exercise of thatchoice of votingin accordancewith the decisionalready taken bf thevoter. It, therefore,follows that if any actsare donewhich merely inftuence thovoterin makinghis choicebetweenone candidate or another, theywill not amountto interferencewith the freeexerciseof the electoralright. In factall canvassingthat is carried on andwhich is consi· deredlegitimate is intendedto influence the choiceof a voterat thefirst stageand that is quitepermissible. Once the choice h1rs beenmadeby the voter,there should be no interferencewiththe freeexerciseby himof that choiceby actuallycasting the vote,or in the alternative there maybe cases wherea votermay decidethat he will not votefor anycandidateat all but someacts are donewhichcompelhim to casthis vote. It is in such cases thatthe offenceof undueinfluencewill be heldto havebeen committed. [320 B-G] The languageused in thedefinitionof undueinfluenceimplies that an offenceof undueinlluencewill be held to have beencommitted if the elec· tor havingmade up his_ mind to casta votefor a particularcandidate does notdo so becauseof theact of theoffender,and this canonlybe if heis underthe threator fearof some adverse consequence.Whenever any threatof adverseconsequences is given it will tendto divertthe elector fromfreelyexercisinghis electoralright by votingfor thecandidatechosen by him for the pU'Ould he invalid if the signatures are nillde· by .lhe_candidate beforethe pro puser andthe seconder signed it. The Legislatifre, whenenactingthe Act must be presumed to know thatthis 'v.as the lawas intelrpreted in J;,dia andconsequently,whcu the languageincorporatedin s. 5(2) of the Act was used, it must havebeenintended that nomination papers would not be invalidby reasonof thecandidatemaking his signature before the proposerand the seconder. [312 C-El Therefore.in thepresent c::tse. the non1ination papersof the candidatewho signed 'his nominationpaper beforethe proposer and the seconderas well as thoseof thecandidatewho signe: made thereinunder Art. 3 72. The GeneralClauses Act as it was defined State so as to includea Union Territory.This was done by Art. 372 A which was introduced by the Constitution7th Amendment Act, 1956. The new definitionof State ins. 3(5) of theGeneral Clauses Act as a resultof themodificationsand adaptationsunder Art. 372(A) wquld, no doubt, apply to theinterpretationof all laws of Parliament butit cannot apply to the intel'Qretation oftheConstitutionbecause Art. 367 was not amendedand it was not laid down thatthe GeneralClauses Act as adaptedand modified under any Article othec thanArt. 372 Mil also apply to IJ:ie interpretationof theConstitutionsince its amendment in 1956. Since, untilits amendmentin 1956, Section 3(58) ol- the Genen~ Clauses Act did not define 'State' as including Union Territories forpurposesof interpretation of Art .. 54,the Union Territoriescannot be treated as included in the word 'State'. [313 E-314 BJ Furtherthe membersof Houses known as LegislativeAssembliesunder Art.. 168 can be members ot theElectoral College underArt. 54.Jn the case of Union Territories the provisionfor legislaturesis contained it1 Art. 239A butthat Article does not mentionthat any house of the legislaturecreated for any Union Territories will be known a• Legislative Assembly. All that that .Article lays down is that Parliament may by law createa body whether elected or partlynominatedor partlyelected to function as a Legislature in the UnionTmitory.Such a Legislature created by Parliament is not a. Legislative Assembly ascontemplatedunder Art. 168 or Art. 54. Members ofLegislaturescreated for Union Terri tories under Art. 239A cannot,therefore, be held to be members of Legis-. lative Assemblies of States. They were, therefore,rightly excludedfrom the EJooctoral College. [314 C-El (x) On the face of it theargumentthat s. 5(2) of the Act con travenesArt. 58 or any other Articleof theConstitutionhas no force at all. Therequirementlaid down by Parliament that everypersonmust be nominated by two el~tors as proposerand seconder Is a reasonable requirementrelating to regulation of electionto the office of President a.ad cannot be held to be a curtailment ofthe right ofa candidate to standas candidateunder Art. 58. [315 El (xi) If in facta licence had beengrantedto a privatelimited com pany with the specific purpose of obtainingthe vote of an elector, for therespondent,that couldconstitutebribery. Howeverfrom the evid ence led on this issue on behalfof the.petitionersthemselvesno case at all of commission ofthe offence ofbriberyduring the electionperiod could possibly be established. [316 G-HJ {C) Per Sikri, Shelat and Vaidialingam,JJ. (Bbargavaand Mitter, JJ. Concurring)-Tbe parties mustbear tb,eir own costs.. The .,amphlet bad been sent by post and distributedin the Cenltal Halland this justified the petitioners inbringing the twomainpetitions.Most of the evidence which was led in courtdealt with the questionof the distribution of the pamphlet.Further, a number of witnesses badnot toldthe whole truth. It was distressing to see truths being sacrificedat thealtarof political advantage by these witnesses. [288 B-CJ ORIGINAL JURISDICTION: Election Petitions Nos. 1 and 3 to 5 of 1969. Petitions under Part ID of the Presidential and Vice-Presiden tial Elections Act, 1952. rL308Sup.CI{71 208 SUPREME COURT REPORTS l I 97 I I c S.C.l(, !>1. S. Gupta. K. C. Slwrma, K. L. Rathi and C. L. l.aklum1111!. for the petitioner (in E.P.No. 1 of1969). Petitionerin person(in E. P. No. 3 of1969). K. C. Sharma, K. L.Rathi, C. L.Lakhanpal, S. K.Dhingra and M. S. Gupta, forthe 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 of1969). " C. K.Daphtary,D. Narsaraju,Mohan Kumarama11ga/a111, S. T. De,ai, S. K. Dholakia and A. S. Nambiar, for therespondent (in E.P. No.1 of 1969). Jagadish Swarup,So/icitcr-General, L. M. Singhri, R. H. Dhebar and S.- P. Nayar, for respondentNo. I (in E.P.No. 3 of 1969) andthe Attorney-Generalfor India,ElectionCommission ofIndiaand Returning Officer, PresidentialElection (in E.Ps. Nos. 3 to5 of 1969). C.K.Daphtary,D. Narsarajl.t, Mohan K11111arama11ga/am, A. S. Nambiar and S. K. Dholakia. forrespondentNo. 2 (in E.P. No.3 of 1969). C. K. Daphtary, D. Narsarajtt, S. T. Desai, Moha11 Kwnara· ma11ga/am, H.K.L. Bhagat, s. K. Dholakia, J, B. Dadacl1an/i, Ra1•inder Narain and 0, C. Mathur, for therespondent(in E.Ps. Nos. 4 and S of 1969). Jagadish Swarup, Solicitor-General, L. M. Singhvl, S. P. Nayar •. R. H. Dhebar and Lily Thomas, forthe Attorney-General for India,ElectionCommission of India and Returning Officer, Presi dentialElection.(in E. P. No.1 of1969). TheJudgment of S. M. Sikri, J. M. Shelatand C. A.Vaidia lingam JJ., wasdeliveredby Sikri,J. Bhargava,J. atid Mitter, J, gave separateopinions. Thesefour electionpetitionsfiled under s. 14 of thePresiden ial andVice-PresidentialElection Act (XXXIof 1952)(herein .afterreferredto asthe Act), andArt.71 of theConstitution of Indiachallengethe election of therespondentShri V. V. Giri,to the office of the Presidentof India. The petitionerin Election PetitionNo. 1 of1969, ShriShiv KirpalSingh, was a candidate intheelection,and so was the petitionerin ElectionPetition No. 3, ShriPhu!Singh. The nominationsof boththesepetitioners wererejectedby theReturning Officer.· ElectionPetition No. 4 wasfiledby Shri N:. Sri RamaReddy, M.P., and twelveother elec tors,all members of Parliament.Election Petition No. 5 was filed by Shri AbdulGhani Dar, M.P., and nineothermembers of / A 8 c D E F G H A B c I D E G H S. K. SlNGH v. SHR! V. V, GIRI (Sikri, J.) 20~ Parliamentand eightmembers of LegislativeAssemblies ot Haryana, Madhya. Pradesh and Bihar. Shri V.V. Giri is the sole respondentin ElectionPetitions Nos. 1, 4 and5 while in Election Petition No. 3 he was impleaded as respondentNo. 2 and Union ofIndia,throughthe ElectionCommission, was impleaded as respondent No. l. After the saddemise of the thenPresident of India,Dr. Zakir Hussain, on May 3, 1969,the ElectionCommissionissued a noti ficationunder s. 4 of the ActappointingJuly 24, 1969, as the· last date for filing the nominationpapers, July 26, 1969,as _the date for scrutiny of the nominationpapers, and July29, 1969, as the last datefor withdrawal of nominationpapers. Polling was fixed for August 16, 1969. 24 nominationpapers were filed before the Returning Officer. On scrutinywhich took place on July 26, 1969,the Returning Officer rejected9 nominationpapers, includingthe nominationpapers of Shri Shiv Kirpal Singh,peti tioner in ElectionPetition No. 1, and Shri Phu!Singh, petitioner inElectionPetition No. 3. He acceptedthe nominationpapers of 15 candidates. No candidatewithdrew his nominationby the· due date.Countingof votes took place on August 20, 1969, when the result was announcedand the respondent, Shri V. V. Giri,. was declaredelected. Theelection was soughtto bechallenged on various grou11ds in theseelectionpetitions. Some of these grounds were common. The ·grounds may be broadlyformulated as follows : (1) 'fhat the nominationpapers of Shri Shiv Kirpal Singh, . Shri CharanLal Sahu ~d Shri Yogi Raj were w~ngly acceptedby theReturningOfficer; (2)Thatthe nominationpapers of Shri V. V. Giri, !he respondent, were wrongly acceptedby the Return mg Officer; (3) Thatthe nominationpapers of Shri Ra'bho' Pa~durang Nathuji, Shri Santqsh Singh kachh~aj Shn ·Babu Lal Magand Shri RamDulateTripathi wer~ wronglyaccepted by the Returning Officer; (4) That Part IIIandsection 21 of theActa ultra-vires, the Constitution· re ' . (5) T~at ~ules 4 and6(3)(a)of thePresidentialand V1ce-Presidenf!al Election Rules, 1952(hereinafter referredto as the Rules),promulgatedunder section 21 of theAct,are ultra vires the Constitutionand. th Act:e 210 SUPREME COURT REPORTS [1971] 2 S.C.R. ( 6) That theelectedmembersof theLegislative Assemblies of theUnionTerritorieswere entitled to be includedin theElectoralcollege for theelection of the Presidentand theirwrongfulnon-inclusionhad not only ll}
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