N. S. Vardachari Vs. G. Vasantra Pai
& ANR  INSC 175 (21 August 1972)
CITATION: 1973 AIR 38 1973 SCR (1) 886 1972
SCC (2) 594
CITATOR INFO :
R 1992 SC 96 (14)
Representation of the People Act (43 of
1951), s. 123 (2) and (4)-Expression of opinion that candidate not qualifiedIf
amounts to undue influence under s. 123 (2) or corrupt practice under s. 123
Election to Legislative Council from
Graduates' constituency-If non-political.
Constitution of India, 1950, Art. 171(3) (a)
(b) and (c)-If Candidate should be member of electoral college.
Practice-Imposition of penal Costs.
In 1967, the first respondent and S contested
for election for a seat in the Madras Legislative Council from the City
Graduates' constituency, which fell vacant. S was declared elected and his
election was challenged by the first respondent on the grounds, inter alia,
that, (a) in an election from graduates' constituencies political parties were
not competent. to sponsor candidates, and S, having been sponsored by the
Swatantra Party, was not qualified to, be a candidate; and (b) that S was
guilty of corrupt practices under s. 123(5) of the Representation of the People
1. The High Court set aside the election of S
on the second ground. On the first ground, while holding that there was no evidence
that S was sponsored by a political party, the High Court observed that
election to the Legislative Council from the Graduates' constituency was a
non-party election and that political parties should not nominate any candidate
for that election. This Court, in appeal, confirmed the finding' of the High
Court that S was guilty of corrupt practices, but did not at all touch on the
observations of the High Court.
In 1970, the first and second respondents
contested for election to the Legislative Council from the same constituency,
which was a two member constituency, and they were both declared elected. The
first respondent objected to the candidature of the second respondent before
the Returning Officer, on the grounds, (1) that the High Court had decided in
the earlier election petition against S, that the constituency was a
non-political one and that the second respondent, having been sponsored by the
Swatantra Party, any votes given to him would amount to throwing away the
votes; and (2) that the second respondent was not a, graduate and hence, was
not qualified to be a candidate at the election, The Returning Officer rejected
the objections, but the first respondent continued the propaganda against the
second respondent by publishing leaf. lets as well as appeals in newspapers.
After the two respondents had been declared elected, the appellant, an elector
in the constituency, filed an election petition, challenging the election of
the first respondent on the ground that by his propaganda he was guilty of
corrupt practices under s.123(2) and (4).
The High Court, dismissed the petition with
In appeal to this Court.
HELD: (1) A debate whether a candidate was
qualified to stand or whether a political party was competent to nominate
candidates for a particular constituency cannot be undue influence within the
meaning of s. 123(2). [891G-H] (a) The first respondent placed his point of
view before the electorate and sought support for it from the judgment of the
High Court and the second respondent. relied upon a press note issued by the
Election Commission. Candidates in elections are not only entitled to raise
political issues but can also raise social, economic and legal issues. [892AB]
(b) The first respondent did not make any attack. on the character of the
second respondent. The mere fact that his contention was untenable did not
convert it into undue influence. [89-2B, H] S. K. Singh v. V. V. Giri,  2
S.C.R. 197, referred to.
(2) The first respondent was not guilty of
any corrupt practice under 123(4). [891G] (a) His propaganda that the second
respondent was not qualified to be a candidate was only an opinion expressed by
him. He did not make any statement of fact and an opinion on a question of law
could not be considered to be a statement of fact., The fact that the Returning
Officer held that the second respondent was qualified to be a candidate did not
preclude the first respondent from debating the issue before the electorate.
[891D-G] (b) It could not be said that the opinion was neither bona fide
nogroundless as the contention was accepted as correct by the High Court in an
election petition filed against second respondent, though that decision was
reversed by this Court. [891E] (c) Also, the first respondent's propaganda that
the High Court had held in the election petition against S, that the graduates'
constituency was a nonpolitical constituency could not, be said to be a false
statement, because, the High Court, in fact, said so. [891F-G] Guruji Shrihar
Balirenz Jivatode v. Vithalrao and Ors,  2 S.C.R. 766, referred to.
(3) This conclusion of the High Court, that
the graduates' constituency was a non-political one, however, was wrong.
[894H] In the form prescribed for nominating
candidates for Legislative Assemblies there is a clolumn requiring the
candidate to mention whether he belonged to a political party, and if so, to
which party. The electors to the Legislative Assembly are by and large
illiterate and to facilitate the freedom of voting the symbol system had been
introduced. The symbols are of two type,, reserved and free. it was necessary
for he Election Commission to know whether a candidate was a nominee of a
political party, because, reserved 'symbols are allotted to candidates sponsored
by recognised political parties. The symbol system is unnecessary in the
elections to the Legislative Council, because, the electors are generally
educated. Therefore, the absence of such a column in the form prescribed for
nominating candidates to the Legislative Council does not lead to the inference
that election to the Legislative Council from the Graduates' constituency is
[894 F-H; 895 A-C] (4) Article 171(3)(d) of the
Constitution says that members of the Assembly should elect, as nearly as may
be, 1/3 members of the Council from amongst persons who are not members of the
Assembly; but no 888 such stipulation is made in the other clauses of the
Article. But from that it could not be concluded that when elections are held
under clauses (a),(b) and (c) of Art.
171(3), the person to be elected must be one
who is a member of the electoral college in question. The candidate may either
be a member of the electoral college or even an, outsider. If a person
possesses all the qualifications prescribed in the Constitution as well as in
the Representation of the People Acts and has not incurred any of the
disqualifications mentioned therein he is qualified to be a ,candidate. [894D-F]
G. Narayanaswami v. G. Pannerselvam and Ors. Civil Appeal No. 189 of 1971
decided on April 12, 1972, followed.
(5) In the circumstances of this case here
was no justification for imposing penal costs.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 586 of 1971.
Appeal under section 116-A of the
Representation of the People Act, 1951 from the Judgment and order dated
December 15, 1970 of the Madras High Court in Election Petition No. 2 of 1970.
R. M. Sheshadri, K. C. Agarwala, E. C.
Agarwala and A. T. M. Sampath, for the appellant.
S. V. Gupte, S. S. Javali, P. C. Bhartari, J.
B.Dadachanji and Ravinder Narain, for respondent No. 1.
S. S. Khanduja and Vineet Kumar, for
respondent No. 2.
The Judgment of the Court was delivered by
Hegde, J. This is an election petitioner's appeal under s.
116-A of the Representation of the People
Act, 1951 (to be hereinafter referred to as the Act). It relates to the
election to the Tamil Nadu Legislative Council from the Madras City Graduates'
constituency. The election was held on April 11, 1970. Seven candidates
contested in that election. The election was according to the principles of
proportional representation by means of single transferable vote. The Madras
City Graduates' constituency was a two member constituency. The 1st respondent,
Vasantha Pai was declared elected in the first count itself. The second
respondent Narayanaswamy was declared elected in the second count. The election
of Vasantha Pai was challenged by the appellant Vardachari who is an elector in
the constituency in question on the ground that Vasantha Pai was guilty of
corrupt practices mentioned in sub-ss. (2) and (4) of S. 123 of the Act. The
High Court came to the conclusion that the petitioner has failed to make out
his case and consequently dismissed the election petition. Hence this appeal.
889 The charges levelled against Vasantha Pai
are : (1) that he (Vasantlia Pai) falsely carried on propaganda to the effect
that the High Court of Madras had decided in an earlier election petition
between him and R. N. Seshadri that the constituency in question is a
non-political and Narayanaswamy having been sponsored by the Swatantra Party
any votes given to him will amount to "throwing away" of the votes
and (2) that Narayanaswamy being a non-graduate was not qualified to be a
candidate at the election.
It may be noted at this stage that Vasantha
Pai did object to the candidature of Narayanaswamy before the Returning Officer
on the two grounds mentioned earlier. The Returning Officer rejected those
objections holding that there was no material before him to show that
Narayanaswamy had been sponsored by the Swatantra party and further that in his
view a non-graduate is not disqualified from seeking election from a graduate
constituency. Even after the Returning Officer rejected the contentions of
Vasantha Pai, he admittedly carried on the propaganda referred to earlier by
publishing leaflets as well as appeals in the Newspapers.
Section 123 enumerates what are corrupt
practices for the purposes of the Act. Sub-s. (2) of that section to the extent
material for our present purpose reads "Undue influence, that is to say,
any direct or indirect interference or attempt to interfere on the part of the
candidate or his agent, or of any other person with the consent of the
candidate or his election agent, with the free exercise of any electoral
right." (The proviso is not relevant for our present purpose.) Sub-s. (4)
thereof says :
"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 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." Before examining the points in
issue, it is necessary to set out a few more facts.
In 1967 a seat in the Madras City
Graduate&' constituency fell vacant. For that seat election was held on
August 21, 1967. In 890 that election Vasantha Pai was one of the contestants.
One of the other contestants was R. N. Seshadri. R. N. Seshadri was declared
elected having secured the highest number of votes. Thereafter Vasantha Pai
challenged the validity of the election of Seshadri on various grounds. One of
the grounds taken by Vasantha Pai was that in an election from graduates
constituencies political parties were not competent to sponsor candidates,
Seshadri having been sponsored by the Swatantra party, was not qualified to be
a candidate. Yet another ground taken was that Seshadri was guilty of corrupt
practices coming within sub-s. (5) of s.
123 of the Act. The High Court set aside the
election of Seshadri on the ground that he was guilty of corrupt practices
mentioned in sub-s. (5) of s. 123. Dealing with the question whether Seshadri
was qualified to be a candidate at the election or not it observed that there,
is no satisfactory evidence before it to come to a conclusion that Seshadri had
been sponsored by a political party. But proceeding further it observed :
"It is quite well known that the
election to the Madras Legislative Council from the Madras District Graduates'
Constituency is a nonparty election. No party symbols are assigned to the
candidates. The political parties cannot also nominate any candidate for this
election." Aggrieved by the decision of the High Court, Seshadri took up
the matter in appeal to this Court. This Court affirmed the finding of the High
Court that Seshadri was guilty of the corrupt practices mentioned in sub-s. (5)
of s. 123 of the Act. Evidently this Court was not invited to consider the
correctness of the observations of the learned trial judge that "election
to the Madras Legislative Council from the Madras District Graduates'
Constituency is, a non-party election". The judgment of this Court did not
touch that point.
After the decision in Seshadri's case,
Vasantha Pai persisted in carrying on propaganda that the Madras High Court had
held that the election to the Madras Legislative Council from the Madras
District Graduates' Constituency is a non-party election and no political party
can sponsor a candidate in that election. He also carried on the propaganda that
Narayanaswamy's candidature had been sponsored by the Swatantra party and
therefore according to him, he was not qualified to be a candidate.
Having set out these facts we will first
consider whether Vasantha Pai was guilty of a corrupt practice coming within
sub-s. (4) of s. 123. The charge under this head is based on two grounds viz.
that he had falsely carried on propaganda that the High Court had ruled that
the constituency in question was a non-political constituency and further that
he had carried on a false propaganda' 891 that Narayanaswamy was not qualified
to be a candidate. The ingredients of the corrupt practice mentioned in S.
123(4) as set out by this Court in Guruji Shrihar Baliram Jivatode v. Vithalrao
and ors.(1) are :
1. The publication by a candidate or his,
election agent or any other person with the consent of the candidate or his
election agent of any statement of fact.
2. Which statement is false and which was
believed by the candidate to be false or at any rate was not believed by him to
3. The said statement relates to the personal
character or conduct of a candidate or in relation to his candidature or
4. The same being a statement reasonably
calculated to prejudice the prospects of that candidate's election.
Taking up first the propaganda of Vasantha
Pai that Narayanaswamy was not qualified to be a candidate, it was only an
opinion expressed by Vasantha Pai. He made no statement of fact. An, opinion,
much less an opinion on a question of law cannot be considered as a statement
Further his opinion cannot be, said to be
either not bona fide or groundless as the Same was accepted as correct by the
High Court of Tamil Nadu in the election petition filed against Narayanaswamy
though that decision was reversed by this Court in G. Narayanaswami v. G.
Pannerselvam and ors.
The fact that the Returning Officer had held
that Narayanaswamy was qualified to be a candidate did not preclude Vasantha
Pai from debating that issue before the electorate.
Vasantha Pai's propaganda that the High Court
has held that the graduates' constituency is a non-political constituency
cannot be said to be false statement. The High Court advertently or
inadvertently said so though it was wrong in saying so as we shall presently
see. Hence the charge under s. 123 (4) fails.
Now turning our attention to the allegation
of undue influence, we fail to see how a debate whether a candidate was
qualified to stand or whether a political party is competent to nominate
candidates for a particular constituency can be undue inifluencve within the
meaning of S. 123(2). Both candidates have placed their point of view before
the electorate. Vasantha Pai sought support from the High Court's Judgment and
Narayanaswamy relied on the Press Note issued by the Election Commission that
political parties (1) 2 S.C.R. 766. (2) Civil Appeal No. 189 of 1971
decided on April 12, 1972.
892 are not precluded from sponsoring
candidates in the graduates' constituencies. Candidates in elections are not only
entitled to raise political issues, they can also raise social, economic and
legal issues. The fact that a contention is untenable does not convert it into
an undue influence. We do seek to limit the scope of the expression "undue
influence" in s. 123(2). As observed by this Court in S. K. Singh v. V. V.
"The freedom of election is twofold; (i)
freedom in the exercise of judgment. Every voter should be free 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." In that decision
this Court observed after taking into consideration s. 171 (G) of I.P.C.
"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 there under. But the fact that making
of such a false statement is a distinct offence under Section 1 7 1 G does not
and cannot mean that; it cannot take the graver form of undue influence
punishable under section 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 Section 171C or Section 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 See. 171-F, read with
Section 171C." Herein it may be noted that Vasantha Pai did not make any
attack on the character of Narayanaswamy. His contention was that the election
to the constituency in question was non-political and that Narayanaswamy was
not qualified to be candidate, he (1)  2 S.C.R. 197.
893 being not a graduate. Vasantha Pai was
entitled to place these points of view before the electorate and even tell them
that if Narayanaswamy is elected he may challenge his election. It was for
Narayanaswamy or his supporters to counter the arguments advanced on behalf of
For the reasons mentioned above we agree with
the High Court that the appellant has failed to establish the charges levelled
At the same time we think it necessary to
observe that the conclusion of the Madras High Court in R. N. Seshadri's case
that the Graduates' constituency is a non-party constituency is an erroneous
conclusion. There is no reference to political parties either in our Constitution
or in the Act.
The political parties come into the picture
indirectly though they have an important place in our political set up.
Our Constitution and the Act refer to
candidates as such and not to the parties to which they belong. Art. 173 of the
Constitution prescribes the qualifications of the person to be chosen to fill a
seat in the legislature of a State.
They are (1) He must be a citizen of India.
(2) He must make and subscribe before some
person authorised in that behalf by the Election Commission an oath or
affirmation according to the form set out for the purpose in the Third Schedule
to the Constitution.
(3) In the case of a seat in the Legislative
Assembly he must not be less than 25 years of age and in the case of a
Legislative Council he must not be less than 30 years of age and (4) He must
possess such other qualifications as may be prescribed in that behalf by or
under any law made by parliament.
Then we come to the provisions of the Act.
Section 5 of the Act prescribes the qualifications for membership of a
Legislative Assembly. In the case of a general constituency, the only
qualification prescribed is that he must be an elector for any assembly
constituency in that State. Section 6 prescribes the qualifications for
membership of a Legislative Council. That Section reads (1) A person shall not
be qualified to be chosen to fill a seat in the Legislative Council of a State
to be filled by election unless he is an elector for any Assembly constituency
in that State.
894 (2) A person shall not be qualified to be
chosen to fill a seat in the Legislative Council of a State to be filled by
nomination by the Governor unless he is ordinarily resident in the State."
The Representation of the People Act, 1950 prescribes qualifications for being
enrolled as an elector. Sections 8 to 10A of the Act set out the grounds which
disqualify a person from being a candidate. If a person possesses all the
qualifications prescribed in the Constitution as well as in the Act and has not
incurred any of the disqualifications mentioned therein then he is qualified to
be a candidate.
It may look anomalous that a non-graduate
should be a candidate in a Graduates' constituency. But if a candidate
possesses the qualifications prescribed and has not incurred any of the disqualifications
mentioned in the Constitution or in the Act other consideration becomes
irrelevant. That is the ratio of the of this Court in Narayanaswami's case
It was urged on behalf of Vasantha Pai that
Art. 171 (3) (d) of the Constitution specifically says that the members of the
Assembly should elect as nearly as may be 1/3rd members of the Legislative
Council from amongst persons who are not members of the Assembly. But no such
stipulation is made in the other clauses of that Art. Therefore we should
conclude that when elections are held under cls. (a), (b) and (c) of sub-art.
(3) of Art, 171, the person to be elected must be one who is a member of the
electoral college in question.
We see no logic in this reasoning. The
relevant provisions do not say so. From the language of those provisions, it is
clear that the candidate may either be a member of the electoral college in
question or even an outsider. This question is no more res integra. It is
concluded by the decision of this Court in Narayanaswami's case (supra).
Dealing with the question that the election
to the Graduates' constituency is non-political, our attention was invited on
behalf of Vasantha Pai to certain rules framed under the Act as well as forms
prescribed. In the form prescribed for nominating candidates for legislative
assemblies, there is a column requiring the candidate to mention whether he
belongs to a political party, it so, which party, whereas there is no such
column in the form prescribed for nominating candidates to the legislative
council. From this we are asked to infer that the election to the legislative
council is non-political. In our opinion this is an erroneous contention. The
electors to the legislative assembly are by and large illiterate. Hence to
facilitate the freedom of voting, the symbol system had been introduced. There
are two types of symbols viz. reserved symbols and free symbols. Reserved
symbols are allotted only to 895 candidates sponsored by recognised political
parties. Free symbols are given to others. In order to allot the reserved
symbols, it is necessary for the Election Commission to know whether a
particular candidate is the nominee of any political party. Symbol system is
unnecessary in the elections to the Legislative Council because the electors
therein are by and large educated. They can exercise their franchise without
the assistance of the symbols. We can see no legal objection for any political
party sponsoring candidates to the seats in the Legislative Councils.
One other question remains to be decided. The
learned trial judge has imposed penal costs of Rs. 500/on the appellant;
that in addition to the ordinary costs. It
was contended before us that the learned judge had no competence to impose
penal costs. We do not think it necessary to decide that question. From the
facts and circumstances of this case, we do not think that there was any
justification to impose penal costs. We accordingly set aside the order
imposing penal costs. In other respects this appeal fails and the same is
dismissed with costs.
V.P.S. Appeal dismissed.