Abdul Hussain Mir Vs. Shamsul Huda
& ANR [1974] INSC 277 (20 December 1974)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 1612 1975 SCR (3) 106 1975
SCC (4) 533
CITATOR INFO :
D 1975 SC1634 (4,9) RF 1976 SC1599 (6) RF
1978 SC1162 (5) R 1985 SC 89 (19)
ACT:
Representation of the People Act (43 of 1951)
Ss. 83, 123(1) (2) and (3)-Scope of.
HEADNOTE:
The appellant is a Muslim, whose mother was a
tribal Hindu who was converted to Islam on the eve of her marriage to a Muslim.
In the election to the Assam Legislative Assembly from a constituency which is
a tribal area of Assam with a heterogeneous composition of tribesmen vaguely
Hindu by persuasion, plainsmen Hindus and nearly 80% Muslims, the appellant was
declared elected. The respondent filed an election petition challenging the
election inter alia on three grounds : (1) that the appellant offered Rs.
2,000/to P.W. 12 a Mulla to collect votes for him, and though P.W. 12 refused
the offer the appellant was guilty of the corrupt practice under s. 123(1) of
the Representation of the People Act, 1951; (2) that the appellant was guilty
of corrupt practice under s. 123(3) because he canvassed for votes on the basis
of his religion by asking for votes on the ground of his being the son of a
tribal Hindu woman; and (3) that the appellant exercised undue influence by
threatening that the persons who might note for the respondent, could be
identified and would be subjected to the same treatment as people of Bangladesh
were by the Pakistanis. thus violating s. 123(2). The High Court allowed the
petition.
Allowing the appeal to this Court, (Per,
Alagiriswami, J.) (1) Regarding the first charge, P.W. 12 stated that the
appellant offered him money if he would work for him in the election in the two
villages in which he happened to be the Mulla. Another witness stated that the
appellant told him that he had offered money to P.W. 12 for helping him in the
election campaign but that P.W. 12 rejected the offer and, requested that witness
to make over the money to P.W. 12 and prevail upon him to work for the
appellant. These facts do not fall under s. 123(1). Therefore. it is
unnecessary to discuss whether, if money is paid or offered as consideration
for votes promised to be secured by a person using his influence it is bribery
or not. because, the question does not arise out of the facts of this case.
[108G109A] (Per Krishna Iyer and Sarkaria,
JJ.) (1)(a) An appraisal of the evidence and an overall view of it makes it
doubtful whether the appellant it even met P.W. 12 and therefore, the offer of
the bribe had not been established. [123B; 126E-F] (b) Section 123(1) requires
(i) an offer or promise by the candidate etc., of gratification to any person,
and (ii) the object must be directly or indirectly to induce an elector to vote
or not to vote at an election. The purpose of the provision is to ensure poll
purity and the exclusion of pollution by money power. If the payment is to
induce an elector to vote, be it direct or vicariously, it is corrupt.
If the money is paid as consideration for
votes Promised to be secured by an important person of the locality using his
sway it is bribery even though indirectly exercised. But, if the candidate pays
money to use his good offices and canvass votes for him it would be a border
line case. In the present case, if P.W. 12 had been paid the money striking a
bargain for getting the votes in his ambit of influence it is electoral
corruption. On the other hand, if it is money received for the purpose of
organising effectively the election campaign by hiring workers, going ground to
places in car, meeting people and persuading them to vote for the candidate it
is 107 proper election _expenses. The touch stone in all these cases of payment
or gratification is to find out whether the money is paid in reasonable measure
for work to be done or services to be tendered, and whether the services, so
offered amount to a bargain for getting votes or merely to do propaganda or to
persuade voters to vote for the candidate. The crucial point is the nexus
between the gratification and the votes, one being the consideration for the
other, direct or indirect. In the present case, the facts as spoken do not even
if true, come within the relevant clause namely s. 123(1), because the offer
was made only to make P.W. 12 work for the candidate that is, to persuade
voters to support the paying candidates. [124B-E, 125B-C, D-F] (Per
Alagiriswami, J.) (2) As far as the second charge is concerned some witnesses
said that the appellant canvassed for votes claiming that he was a Hindu and
others said that be claimed votes on the basis that his mother was a tribal
woman. In: a constituency where 80% of the voters are Muslims it is extremely
unlikely that the appellant would have canvassed for votes on any such basis.
The appellant being a Muslim he could not be said to have canvassed for votes
on the basis of his religion, he not being a Hindu. [109B-C] (Per Krishna lyer
and Sarkaria, JJ.) (2) (a) The appellant is a Muslim and his appeal, if at all,
is on the basis that he was an inter-caste or interracial or inter-religious
product and as such a symbol of unity or a less communal Mussalman. An appeal
by a candidate that he personifies Hindu-Muslim interplay does not cross the
line of corrupt practice. [114G-115B] (b) The section requires that the vote
must be sought by the candidate exploiting his religion. An appeal to Hindus by
a Muslim candidate on the ground of his religion is impossible under the
present Indian conditions. [115E] (c) In the particular constituency, if one
took up a Hindu posture it would not be an advantage to him, and therefore, it
is unlikely that the appellant sougth votes on the ground that he is a Hindu.
The ground of religious or communal appeal does not stand in the light of the
evidence in the present case and finding of the High Court is.
therefore, wrong. The High Court had been far
too easily persuaded by unsatisfactory oral evidence each of which is of an ad
hoc character, uncorroborated by any testimony of compelling value and is
contradicted by the party affected.
The criterion of proof beyond reasonable
doubt was forgotten although verbal homage was paid to it. [119C-F] [It is a
matter for profound regret that political communalism far from being rooted out
is foliating and flourishing, largely because parties and politicians have not
the will. professions apart, to give up the chase for power through
politicising communal awareness and religious cultural identity.] [119F] (By
Full Court) (3) The election petition is vague in regard to the particulars in
support of The averment of undue influence.
More than one amendment. was sought and still
neither the names of the persons nor of the places so vital to induce credence
and to show fair play have been given, in spite of the appellant urging that
the allegation was vague and bold.
One cannot pick up witnesses on route and
march them into the witness box without running the risk of their apparently
consistent evidence from being disbelieved. The charges are quasi-criminal and
have serious consequences and all necessary particulars have to be furnished in
the election petition as required by s. 83. This being absent and the entire
case resting on shaky ipsi dixits the version tendered by the respondent could
not be believed. [109C-D;
122A-D] (Per Krishna Iyer and Sarkaria, JJ.):
(4) Certain basic legal guidelines cannot be
lost sight of while adjudging art election dispute. The verdict at the polls
wears a protective mantle in a 108 democratic polity. The Court will vacate
such ballot count return only on proof beyond reasonable doubt of corrupt
practices. Charges, such as have been imputed here, axe viewed as
quasi-criminal, carrying other penalties than losing a seat and a strong
testimony is needed to subvert a Returning Officer's declaration. At the same
time, findings reached by the trial judge, will not be reappraised and reversed
in appeal unless palpable errors or misappreciation are writ large on them.
[111H-112B]
CIVIL APPELLATE JURISDICTION Civil Appeal No.
915 of 1973.
From the judgment and order dated the 30th
April, 1973 of the Gauhati High Court in Election Petition No. 2 of 1973.
R. K. Garg, S. C. Agarwal, S. S. Bhatnagar,
V. J. Francis and S. N. Chaudhary, for the appellant.
D. N. Mukherjee, Prodyot Kumar Chakravarti
and N. R.
Chaudhry, for respondent No. 2.
The Judgment of V. R. Krishna Iyer and R. S.
Sarkaria. JJ.
was delivered by Krishna Iyer, J. A.
Alagiriswami, J. gave a separate opinion.
ALAGIRISWAMI, J. I agree with the conclusions
of our learned brother Krishna Iyer. But I think it necessary to say something
on my own.
The appeal relates to the election to the
Assam Legislative Assembly from Dhing constituency. The appellant was declared
elected by a majority of 1185 votes. The respondent filed an election petition
making three charges of corrupt practices against the appellant. The learned
Judge of the Gauhati High Court held that the charges were made out and allowed
the election petition. Hence this appeal.
The first charge was the offer of a bribe to
P. W. 12. The second ,charge was that the appellant was guilty of a corrupt
practice under section 123(3) of canvassing for votes on the basis of his
religion. The third charge was that he exercised undue influence by holding out
the threat that the people who voted for the respondent would be identified and
subjected to the same treatment as the people of Bangladesh by the Pakistanis.
Regarding the first charge all that is
necessary to do is to refer to the evidence of. P.W. 12 and 13. P.W. 12 stated
that the appellant offered him Rs. 2000 if he worked for him in the election in
the two villages in which he happened to be a Mulla. P.W. 13 stated that the
appellant told him that he had offered Rs. 2000 to P.W. 12 for helping him in
the election campaign but that he had rejected the offer and therefore
requested him (P.W. 13) to collect the money and make it over to P.W. 12 and
prevail upon him to work for him (appellant). Clearly this does not fall under
section 123(1). 1 consider it, therefore, unnecessary to discuss whether if
money is paid ,or offered as consideration for votes Promised to be secured by
a person 109 using his influence it is bribery or not. It is a good policy not
to discuss in a judgment question which do not arise out of the facts of the
case.
As far as the second charge is concerned, it
is said that the appellant's mother was a 'Kachari', one of the tribes in
Assam. But admittedly she was converted to Islam before she married the
appellant's father., Some witnesses say that the appellant canvassed for votes
claiming that he was a Hindu.
Some others say that he claimed votes on the
basis that his mother was a Kachari. All that is necessary to say about this
part of the, case it that apart from the fact that in a constituency where 80
per cent of the voters were Muslims it is not at all likely that the appellant
would have canvassed the votes on any such basis, there is no doubt that the
appellant being a Muslim he could not be said to have canvassed for votes on
the basis of his religion, he not being a Hindu.
As regards the third charge, in spite of the
three amendments made to the election petition material particulars were not
given on the basis of which the evidence regarding this charge could have been
admitted. I agree with the conclusions of my learned brother on the basis of
the evidence which he has discussed that the case of undue influence is not
satisfactorily established.
I agree that the appeal should be allowed and
the election petition dismissed with costs.
KRISHNA IYER, J. In the current Indian
socio-geographic context, with its delightfully and distressingly diverse,
traditional and complex humanity, we have to appreciate the three grounds of
corrupt practice levelled through this election appeal against the Congress
candidate who secured a lead of 1385 votes but was allegedly guilty of several
malpractices at the polls of which three have found favour with the High Court
and have been challenged before us.
Briefly, they are (a)that the petitioner
offered Rs. 2,000/to one Jabbar Munshi (P.W. 12) to collect votes for him which
this righteous soul spurned and therefore the preferred payment did not
materialise although the corrupt practice under s.123(1) was nevertheless
committed;
(b) the petitioner, of the same Islamic faith
as his opponent though, canvassed votes using the potency of a queer sort of
mulatto religious or communal appeal, thus Petting caught within the coils of
s. 123(3) of the Representation of the People Act (hereinafter called the Act,
for short); and (c) he exercised a kind of undue influence to which people of
States of our country bordering on Pakistan and a sizeable Muslim population
may perhaps be peculiarly susceptible, viz., subjection to the excruciating
torture suffered by the East Pakistanis if perchance these voters dared to vote
against 110 the Congress thus violating the basic guarantee of free and fair
elections contained in s. 123(2) of the Act.
The High Court's holdings on those charges
may, at the outset, be set out, to get a hang of the controversy in this appeal
"According to the statement of Jabbar Munshi, which is reinforced by that
of Sahed Ali the respondent No. 1 had offered Rs. 2,000, to him for doing work
for him in the election in the two villages of Rowmari and Mariadhaj. Shri
Choudhury laid emphasis on the word 'inducing' used in sub-clause (A) of Clause
(1) of Section 123 and canvassed that we cannot spell out inducement by Jabbar
Munshi vis-a-vis the voters putting up in Rowmari and Mariadhaj from his
statement that he had been offered Rs. 2,000, to do work for the respondent No.
1 in the election in the said two villages.
Here, again, it is not possible to agree with
Sri Choudhury If a priest of a village is pressed into service by a candidate,
who has offered to pay him handsomely, to help him in the election work, it
becomes patent that the priest is to use his influence as such in winning votes
for the candidate who had approached him. Hence all the ingredients of
sub-clause (A) of clause (1 ) of section 123 are proved by the dependable
testimony of Jabbar Munshi and Sahed Ali with the consequence that the corrupt
practice of bribery attributed to respondent No. 1 is established."
"In view of the above discussion of the relevant evidence I conclude that
Kanak Doimari and Kahiram Deuri have spoken the truth with the consequence that
the respondent No. 1 is proved to have solicited votes on the basis of his
being the son of a Boro Kachari woman. This appeal was made up him in village
which were inhabited by tribals who may or may not be considered as Hindus but
they are certainly not Muslims. Therefore, all the ingredients of Clause (3) of
s.123 are established." :,The statements of the relevant witnesses of the
petitioner are that the respondent No. 1 had told them that he is half Hindu
and half tribal because of his maternal lineage. I have already held the
statements of those witnesses as acceptable. Nothing said by the respondent No.
1 in the witness box has the effect, of robbing the statement of those
witnesses of their quality as held by me. of being credible. 'Therefore, I hold
that the allegations made in section C9(i) C9(ii) of Part III of the Annexure
are proved beyond reasonable doubt and as such the respondent No. 1 is guilty
of the corrupt practice mentioned in clause (3) of section 123 of the
Act." It is mentioned in Section B that the respondent threatened the
Muslim voters that in case they voted against the Congress, whose nominee be
was, it would be possible 111 this time in view of the new system of voting
introduced, to detect that fact and that in such an event they shall be
severely dealt with. According to the new voting system introduced in 1972, it
may be stated, each elector, to whom a ballot paper was issued, had either to
make his signature or place his thumb mark on the counter-foil of the ballot
paper. That fact, it is mentioned in Section B, was prominently brought to the
notice of the electors by respondent No. 1, The threat held out to them,
besides that they shall be severely dealt with in case they voted against the
Congress, was that they shall be considered and treated as Pakistanis and
supporters of Yahya Khan and having worked against the Congress Government
which meant and implied that they Were voting against Srimati Indira Gandhi and
as such were antinational. In Section F of Part VI it was stated that the
respondent No. 1 and the men working with him had propagated that if the
electors voted in favour of a candidate other than that of the Congress 'the
Congress would carry out torture amongst the Muslims as was done in suppression
by Pakistan".
"The up-shot of the discussion of the
evidence of a large number of witnesses examined by the petitioner and the
respondent No. 1 bearing on the allegations set out in Sections B and F of Part
VI is that those allegations are proved to the hilt." Hearing this appeal,
we realised that there was an endemic sensitivity to election propaganda and
method in certain regions which would be wasted strategy elsewhere because
human responses differ according to the socio-political conditioning of groups
and communities. Here we are concerned with a tribal area of Assam, a border
State with a heterogeneous composition of tribesmen, vaguely Hindu by
persuasion, plainsmen Hindus and a 'considerable number of Muslims. A Mulla or
Muslim minipriest may have sway over his orthodox flock here while elsewhere
his voice may be ignored. A threat of East Pakistan type terror or proPakistan
branding is prone to frighten many here while in Central India or the South
such a bogey may have less minatory impact. Religious appeal or communal
appetite in a bigoted and backward population is stronger than in ail
enlightened or indifferent or other area with a long tradition of peaceful
co-existence of variegated religious groups or cosmopolitan people. It all
depends on the sociopolitical pathology or sensibility of each province or
constituency. We cannot dogmatise universally without being convicted of social
inexperience or lack of political realism. Shri Mukherjee, counsel for the
respondent, is right in stressing the interplay of divergent kinks making up
the mores of the Dhing Assembly constituency. Before we can competently judge
human nature we must educate ourselves about the behaviourism of the concerned
group avowedly pluralist in this case. Law, after all, is a species of
sociology.
Even so, certain basic legal guidelines
cannot be lost sight of while adjudging an election dispute, The verdict at the
polls wears a 112 protective mantle in a democratic polity. The Court will
vacate such ballot count return only on proof beyond reasonable doubt of
corrupt practices. Charges, such as have been imputed here, are viewed as
quasi-criminal, carrying other penalties than losing a seat, and strong
testimony is needed to subvert a Returning officer's declaration. On the other
side of the scales, findings reached by the trial Judge will' not be
reappraised and reversed in appeal unless palpable errors or mis-appreciation
are writ large on them. Such being our broad perspective, let us come to grips,
with the facts and the law arising in this case.
We will first deal with the second
charge-held proved by the High Court but hardly easy of solution in the legal
connotation of the provision Ls. 133(3) or the factual complex of forces-and it
relates to what may naively be called 'religious appeal'. For an intelligent
understanding of this translucent provision the best beginning is to reproduce
the subsection and then search for the soul of this wholesome legal man on
communalism in elections a ban of Indian politics which dies hard, defiant of
law and our secularist creed. Likewise, the voluminous testimony in this case,
bearing on the spectrum of appeals attributable to a variety of shades and hues
from crude Islamic to plain ancestral kinship and tribal fellowship, baffles
identification, being curiously psychic and sociological. In these areas of
evidence judicial navigation towards the port of truth is not so simple as the
homing instinct or habitual test of judges whereby they break through false and
doubtful depositions. Local obsessions and subjective exaggerations have to be
kept in leash and objective touchstones and safe Procedures relied on if we are
not to get lost in mere bulk of evidence or cynical negation of good and bad.
To judge is in part an esoteric art, not a rule of thumb and this case is a
real challenge to our ability to feel our way to veracity through university.
When elections are challenged on grounds with a criminal taint, the benefit of
doubt in testimonial matters belongs to the returned candidate.
Section 123(3) of the Act reads "Corrupt
practices.-The following shall be deemed to be corrupt practices for the
purpose of this Act x x x x x x (3) The appeal by a candidate or his agent or
by any other person with the consent of a candidate or his election agent to
vote or refrain from voting for any person on the ground of his religion, race,
caste, community or language or the use of, or appeal to religious symbols or
the use of, or appeal to, national symbols, such as the national flag or the
national emblem, for the furtherance of the prospects of the election of that
candidate or for prejudicially affecting the election of any candidate."
The conscience of this clause-and the core of the legal inhibitions to impart
penal incarnation to the secular mandate commonly expressed in biblical
language 113 "Render therefore unto Caesar the things which are Caesar's;
And unto God the things that are God's."
The founding faith of our poll process is to ostracise the communal vice from
the campaign, having suffered from this virus during the Raj. This great idea
must brighten the legal phrases so that the purpose, the whole purpose and
nothing but the purpose may be carried into effect.
The gravamen of the charge as covered by sec.
C(i) and C(ii` of the petition is that the 1st respondent sought support from
tribals on the score that he was half-tribal, half-Muslim-his mother was of
Kachari tribe-while the petitioner was unmitigated hundred-per-cent Muslim, and
amongst Hindus settled from the plains he pleaded that he was after all
half-Hindu and so, obviously, more acceptable than are undiluted Muslims like
the petitioner. The facts of parentage are that the 1st respondent's mother was
a tribal Hindu who was converted to Islam on the eve of marriage to a Muslim,
The refutation by the respondent has taken two forms. Firstly, no such half
tribal or like propaganda was done and secondly, such a Hindu Muslim
hybridisation in parentage, even if urged tactically before the relevant
communities, did not fall within the obnoxious provision regarding religious or
communal appeal. At best it was a sentimental sop based on ancestry or kinship,
religious rivalry in appeal being out of the ring since both candidates were
apparently full-blooded Muslims. We are free to agree that, what with mixed
marriages and change of religion and the gamut of beliefs and unbelief and like
social phenomena, viewed against the backdrop of a dynamic policy of secularism
and national integration, the correct construction of the sub-section is
fraught with difficulties.
What is religion? What is communal or caste
appeal? (We do not have to deal with the thorny problems relating to appeal to
language, in this appeal). Some of the inherent confusion besetting ,appeal to
religion' have been indicated by this Court in Rahim, Khan case.(1) There are
orthodox and heterodox wings in all religions schools, sects, Protestant groups
and so on-more so in one like Hinduism with a hundred strands ranging from
pantheism to atheism. We are here concerned not so much with theology as with
sociology, not with intra-religious feuds as with the divisive use of religious
faith by projecting them into and polluting politics and social life Strangely
enough, both the candidates are professing Muslims, speaking, in formal terms,
the petitioner being a revolutionary communist to boot. Judicial insight into
practical politics, measuring, the degree of contamination, through injection
of religious, racial, caste or communal poison, of the blood-stream of healthy
electoral processes is a socio-legal essay, as is discernible in this Court's
ruling in Kultar Singh v.
Mukhtiar Singh(2) that religious appeals can
conceivably play even in a situation where both candidates swear by the same
denomination or faith. Within the fold, variables operate and blurred areas
exist. A fanatic may seek votes castigating his co-religionist (1) [1974] 11
S.C.C. 660.
(2) A.I.R. 1965 S.C. 141.
9-L 379 Sup. CI/75 114 rival with reforming
zeal as a de faco apostate. But to delve meticulously into these dark mines of
divergent opinions and clashing practices and hold that 'religious appeal' has
been invoked is to overdo legality and hamper social advance. Without being
obsessed by precedents and freeing ourselves from theological inhibitions we
proceed to interpret s. 123(3) of the Act in the social setting of this case.
We cannot countenance, in the name of narrow law, a push back to movements
blending of religions, races, castes and communities if it will homogenise the
people into national unity, social solidarity and secular mentality. If the
rule of law must run close to the rule of life, this sociological view-point
stands vindicated, since elections politically expose the social inside in the
raw.
Taking this stance is to read legal realism
into the expression ,religious appeal' used in the relevant provision. To
exhort the masses-assuming the appellant's facts to test the legal thrust of
his argument-to vote for himself because his mother was a tribal or a Hindu, is
perhaps prone to excite the clan feeling in a vicarious way, though the appeal
is by a Muslim. Does this sympathy potential of the appeal to the electorate
vitiate the election as an appeal to religion to get votes ? To sensitize the
voting masses on every politically irrelevant appeal is bad but not yet
illegal. Law lays down practical norms, not prohibitions of intangible
injuries. In a pluralist society like ours, a certain irremovable residum of
'minority complex' will haunt the polls, as it may, perhaps in a lesser
measure, in the United States or even the 'United Kingdom. A Jew, a black, a
Catholic or an Indian or woman will, without special appeals in that behalf,
rouse prejudices for and against in some countries.
Even in India, the religion or caste or
community of the candidate may exude through his name, dress, profession or
other external indicium. Does it mean that his candidature is imperiled by the
inscription of his name or ,caste suffix in posters or pamphlets ? Something
more substantial, intentional and oblique is necessary. Similarly, mere
reference to ,one's tribe, ancestry or genetic commingling may not be tainted
with the legal vice of religious or communal appeal, exceptional situations
apart. It may well he that a strong secularist candidate may plead with the
electorate to be non-communal and therefore vote for him ,on the basis that he
was an inter-caste or inter-racial or inter-religious product and as such a
symbol of communal unity. Indeed, mixed marriages may accelerate national
integration and a candidate cannot be warned off by the law from stressing this
non-communal merit of his. That would be a perversion, of the purpose of the
provision.
The substance of the appeal, if at all is-not
the delicate, legal concoction for, Court consumption-that being of Hindu and
Muslim extraction he is a less communal Mussalman. If some misunderstand, the
bulk understand and the masses have an uncanny political sense. Viewed from
another angle, the hortative exercise is relatable to parentage, vaguely
sounding in a sub-conscious clan feeling-too remote, too attenuated to be a
plain, or even indirect appeal on grounds of religion or community. Those who
urge, in some roundabout manner 'Hindu Muslim Ek Ho' are doing no violence to
law but promote its object. We disagree with any contrary reasoning or 115
inical approach and hold that an appeal by a candidate that he personifies
Hindu Muslim interplay does not cross the line of corrupt practice. The sharp
edge of the appeal, not its elitist possibility or over-nice implication, is
the crucial, commonsense test.
Now to the factual conclusion. Did the 1st
respondent project Hindu profile or, more plainly, did he articulate a Hindu
communal appeal ? Religious, it could not be. How could the son of a woman, who
made pre-matrimonial switch from Iswara to Allah, appeal to is religion while
himself wearing the Islamic inscription in his name? to, declare oneself an
offspring of a religious renegade is not to appeal to religion. It is unlikely
because it does not socially pay. Even Hindu tribals may probe beneath the skin
and politically discover he no not a Hindu. Moreover is it strategy in a
fevered situation like a hotly contested election, to propagate, in one part of
the constituency which is predominantly and backwardly Muslim, that one is a
half Hindu ? You cannot insulate such appeals to specified villages as no iron
curtain halts election campaigns.
Counter-productive would have been the
result. Whispers may have succeeded, not public meetings, if the object was
discreetly to spread communal propaganda in a secluded area put prudently to
prohibit its diffusion into other areas of the same constituency. But here the
case is one of public meetings and drama stage with loudspeakers and other publicity
and wedding gathering, not nocturnal sub silentia circulation of injurious
facts appealing to communal feeling.
Before we proceed directly to deal with the
evidence we shall refer to one more dimension of the law of corrupt practice
based on communal and allied appeals. The vote must be sought by the candidate
exploiting his religion.
Here the 1st respondent is avowedly a Muslim.
An appeal to Hindus by a Muslim candidate on the ground of his religion is
impossible under the Indian Sun, things as they stand.
Nor is there any religion or tribe for
hybrids, something like 'Hinduslim'. The finer shades, minor tenets or avant
garde movements present in all religions are not the target of the sub-section
which seeks to strike at the cruder, baser, divisive trends being fostered by
casteism, communalism and the like. All great religions speak basically the
same truth and converge towards the Religion of Man. Science itself is tending
to be spiritual and religions are turning towards science. Man and his Maker are
the profound theme of the major religions but some men pervert this deeper urge
to make gods go to war against each other by forming hostile camps. Indian
history, particularly under the British, is tainted with godly blood of humans
and the cunning manoeuvres of candidates to resurrect that spirit during
electoral battles is anathema for the law. We have no hesitation in taking the
view that here was no religious exploitation by the candidate of his religion
or community, legally or factually. Tribalism may perhaps be stretched to
embrace communalism but the accent in the evidence is on half-Hindu bias, not
tribal identity.
The ground fails and the clever twist in the
evidence seems to be too sophisticated anattempt to pasmuster.
It is not out of place to point out that if
we stretch semantics out of context the appellant may, by calling his rival a
revolutionary 116 communist (which he claims to be), commit a corrupt practice because
to be a communist, nearly means, as a good Marxist, to be materialist
disawoving all religious faiths. Such obviously cannot be the connotation.
Words of wide and vague import, like appeal to religion, must receive
restricted construction lest law run riot and up set accepted political
standards. For, certain political parties-an( therefore, their candidates-have
mild communal overtones and Court must confine themselves to clear misdirection
of voters grounded on plain religious or communal appeal. Again, to claim to be
a) Assamese or Bengalee is not necessarily a communal appeal-may even be
declaration of minority status of the group. In certain circumstances such a
vote-catching technique may be violative of Article 123(3). It all depends on
the over-all factors and setting.
THE FACTS
If the appellant had placated the Hindus by a
communally pala table version of his ancestry, the news of the meeting would
have taken wings and the Muslim voters would have avenged themselves on him--a
risk he was unlikely to take, the contest being close and damage by
inflammatory recoil from the Islamic and being incalculable. We are inclined to
think that the probabilities are against the alleged half Hindu story.
Let us examine the oral evidence bearing on
this issue. But since this branch of the case is built on lip testimony,
judicial scepticism has to be activised before upholding this species of
alleged corrupt practice. Witnesses may lie with counterfeit candour, and
judicial hunch. may not successfully X-ray the unveracity of apparently
disinterested persons. While it may be hazardous to stake a conclusion on so
serious and undetectable a matter as an election result because a single
witness or more swears that way, no rule of thumb wit work, since Courts weigh,
not count, witnesses. Broad probabilities, corroboration, circumstantial or
oral, the non-production of the best evidence and a host of like factors have
to be taken note of, even if not elaborately, documented in the judgment.
The screening and testing processes will also
give due weight to the trial Judge's sense of credence. Ultimately the
appellate Court has to have an appraisal of the witnesses' truthfulness and
accuracy, the Judge's experience of men and matters and careful reflection
being the liedetector.
The pleadings of the petitioner leave much to
be desired from the point of view of precision and particularity, especially
specification of persons and places so essential to fair-play in the legal
process in such matters. Even if one winks at this blemish. there must be
strict proof otherwise. The general criticisms made by Mr. Garg, counsel for
the appellant, have force and we will deal with them in the light of the
explanation offered by Shri Chatterjee for the petitioner.
The appellant has denied having made any such
Hindu or tribal appeal to the voters and the burden of proof rests on the
respondent petitioner. We may also discard the new case casually set up through
some witnesses that the Congress candidate had declared himself a Hindu (not
half but full) and asked at public meetings for support on that footing.
Equally adventitious is the emergence of the
evidence 117 that the appellant campaigned on the basis of his being an
Assamese. While absence of particulars does not stand in the way of the Court
considering the evidence led on a ground of corrupt practice if such evidence
had been admitted without objection and no prejudice has been caused (vide
A.I.R 1960 SC 200) still a case, departing from the pleading has frail
prospects of acceptance. The failure to plead is a blow to the credibility of
after-thought testimony. In the present instance, although some witnesses have
lent up support to the story that the appellant urged that he be regarded as
Hindu and other P.Ws. that, being Assamese, the voters should back him, we do
not give credit to such belated ipse dixits. May be, as earlier observed, the
Assamese appeal, or tribal sentiment, may in certain situations savour of
communal appeal and on other occasions be a request by a member of a weaker or
backward or minority section to the people for voting help a democratic gesturewe
need not examine such possibilities here, the evidence on the point being naked
assertions unfounded in pleadings and unconvincing on probabilities. The Hindus
or Assamese or tribals were small numerically, about 80% of the voters being
Muslims and the balance sheet would show more loss than gain if one took up a
Hindu posture. Nor is there any force in the submission that witnesses R. Ws.
30, 8, 9 and 12 themselves had admitted the holding of the alleged meetings
because they do not agree on the religious or communal appeal at all.
The heap of half-Hindu evidence may be
analysed, not meticulously but applying commonsense tests. P. Ws. 53, 54, 55,
57, 65, 66, 67, 68, 79, 80 generally testify to the case of public appeal in
tribal and non-Muslim areas that the petitioner has part-Hindu blood flowing in
his veins and must be voted for on that basis. Impressive in numbers they are
but the phalanx breaks down on closer examination.
We will eshew the impressionistic approach to
the credibility of witnesses but look out for interestedness, lack of
corroboration and other unnatural features. By a similar token we will examine
the half-tribal appeal. The learned trial Judge has generally chosen to believe
these witnesses and we will have that in mind while appraising their
testimonial worth. P.W. 53 testifies to the appellant's visit to a village
library and asking for votes pleading that he may be taken as a Hindu 'because
his mother is a Kachari Hindu'. He admits that the appellant is a Mohammedan
and still states that 'nobody raised any objection to what he said'. From his
evidence it is seen that there were three persons Puran, Padmaram and Dharani
who were workers of the present respondent sitting in the library. Although
they are interested witnesses their corroboration could have added some weight
to the testimony of P. W. 53. Moreover the same witness deposes 'A polling
Officer was also sitting with us when respondent No. 1 'talked'. Obviously the
evidence of such a witness would have reinforced the credibility of P. W. 53.
We are unable to take at its face value the testimony of this easy witness
particularly because he goes beyond the half-Hindu theory trotted out in the
pleadings.
P. W. 54 is no better. He also speaks to the
request by the appellant that he be taken as a Hindu by the voters of the
village since 118 maternal Hinduism flowed through his veins. However, he
agrees that the appellant bears a Muslim name and it is unlikely that he would
have visited a Hindu wedding to claim himself a Hindu. The surprising thing
about this witness is that he swears 'I took the respondent No. 1 to be a Hindu
as well as a Muslim'. That a unanimous decision to vote for the
election-petitioner was reversed unanimously the next day after the aforesaid
appeal to vote on the basis of a Hindu maternity is liable to be rejected even
by the gullible. We feel P. W. 54 is speaking with his tongue in his cheek.
P. W. 55 also fares ill although he
apparently corroborates P. W. 54. Strangely enough this gentleman admits that
notwithstanding the Hindu appeal 'the respondent No. 1 gave out his name as
Abdul Hussain Mir which is a Muslim name and so we take him as a Muslim'. He
proceeds to state that he met the candidate on a later occasion but 'on this
last mentioned occasion, respondent No. 1 asked me cast my vote in his favour
and nothing more'. He hardly convinces us. It is significant that P. Ws. 54 and
55 do not speak of any corroborating persons apart from Sri Neog, the supporter
of the appellant. A communal appeal made at a wedding party could easily have
been corroborated by the bride's father or other important persons of the
village.
This is a lacuna and the story itself can
easily be woven without fear of contradiction.
P. W. 57 repeats his predecessors, but the
very appeal made is self-contradictory because the words attributed to the
candidate are ,that though he is a Muslim ... his mother is a Kachari Hindu and
so he may be taken as a Hindu'. He mentions the names of certain others who
were present on the occasion as 'leading persons viz. Buddheswar, Bhogram and
Baliram'. But they have not been examined. P. Ws. 67 and 68 depart from the
type, design by asserting that the appellant asked for votes as he happened to
be an Assamese.
The former continued 'I joined issue with him
for the reason that he bore a Muslim name' and whent on to assert 'I told the
respondent No. 1 that he is a Bengalee and not an Assamese . . . Today also I
consider the respondent No. 1 as a Mymensinghia of East Bengal, that is, a Muslim.
P. W.
67's evidence cannot carry conviction. Nor
are we impressed with the testimony of P. W. 68. We have perused the deposition
of P. Ws. 79 and 80 and for the sake of brevity we may say that their testimony
is weakened by improbabilities and much oral evidence, served in heapfuls,
cannot help induce judicial certitude.
P. Ws. 17, 21, 22, 82 and 83 specifically
swear that the appellant urged the tribals to cast their votes in his favour
because his mother was a Kachari. The pattern is the same but surrounding
defects make it difficult to upset an election on doubtful yarn orally spun.
There is a mix up regarding the communal
appeal spoken to by P. W. 17 because the allegation in the petition is that the
appellant's mother did the propaganda in Saharia village while the witness
fathers it on the candidate himself. Of course, he is a polling agent of
respondent-petitioner and is willing to swear as directed. Not only is there no
corroboration but R. Ws. 7, 8 and 15 deny the imputation.
119 P. Ws. 21 and 22 speak to communal
representation soliciting votes on the strength of maternal Hinduism, the
propaganda being done in Batabari village. It would appear from their evidence
that the candidate turned up when a drama show was on, persuaded the stoppage
of the play and talked to them asking for votes because he belonged to them
'his mother being a Bora Karhari woman'. The evidence is vague, unlikely and
denied by the appellant RW 1 and by RW 5 another man of the village. In this
state of dubiety, it is a high risk to run to rely on the testimony of these
two witnesses.
P. Ws. 82 and 85 speak to a similar
propaganda in village Nijdhing. Both of them go beyond the case in the
pleadings and put forward the story that the appellant urged that the villagers
'should vote for him as he is a Hindu'. This evidence is contradicted by R. W.
8, the candidate. We are far from satisfied that such glib oath of casually
picked up witnesses speaking to circumstances more, ambitious than the pleading
sets forth should from the basis for proof of corrupt practice.
To sum up, the ground of religious or
communal appeal hardly commends itself to us in the light of the evidence in
the present case and we are constrained to reverse the finding of the High
Court. We are inclined to observe that the learned Judge has been far too,
easily persuaded by unsatisfactory oral evidence each of which is of an ad hoc
character, is uncorroborated by any testimony of compelling value and is
contradicted by the party affected. Proof beyond reasonable doubt seems a
forgotten criterion, although verbal homage is paid at the start by the Judge.
The dictionary research into the meaning of
religion, race, caste and community and the ethnic enquiry into tribal life
launched by the tribal Judge may be useful but not conclusive and is legally
elusive. Myriad forms of rubbing home communal appeal exist but if intangible,
has to be ignored in the work-a-day world, law being pragmatic, not perfect.
It is a matter for profound regret that
political communalism far from being rooted out is foliating and flourishing
largely because parties and politicians have not the will, professions apart,
to give up the chase for power through politicising communal awareness and
religio-cultural identity. The Ram-Rahim ideal and the secular ideology are
often the Indian politicians election haberdashery, not his soul-stuff. Microand
mini-communal fires are stoked by some candidates and leaders whose
over-powering love for seats in the Legislature is stronger than sincere
loyalty to secular electoral processes. Law can efficiently regulate and
control if wider social legitimation is forthcoming.
And this key factor is absent, so much so
wrong methodology becomes rampant. Small wonder, even revolutionaries, imbued
with realism, often prove 'boneless wonders' when pitted against communal
politics in elections. Courts can act only if cogent proof is adduced. The
charge fails.
We now move on to the terrorising tactic
allegedly resorted to by the appellant. We have earlier noticed that the
politics and practices of electioneering may vary from area to area and what is
good in Tamil Nadu may be foolish in Nagaland, such being the cultural 120
mosaic that is India. We will transport ourselves to this constituency, respond
to its sensitivity and seek the truth of the charge of threat of voters in that
milieu.
The pleading in this behalf casts the net too
wide and vague and the complaint of the appellant that particulars have not
been forthcoming is not without force. The trial Court itself has negatived
some of the grounds relied on by the petitioner under the broad head of undue
influence, tabooed by s. 123(2) of the Act. What has survived and has been
upheld is all that falls for our consideration. The drift of the charge is that
the Congress candidate who, undoubtedly, had the propaganda backing of even
Central Ministers who landed in helicopters, that the voters were told about a
change in the method of voting which required the affixture of signature or
thumb impression on the ballot and the likelihood of detection of the identity
of the votes cast, with reference to the voter. The next step in the threat is
that if anyone was found to have voted for the communist-petitioner he would be
subjected to the same torture the East Pakistanis suffered under the Pakistan
regime. The macabre picture of the blood-bath in Bangladesh before it was born
was perhaps the psychic content of the threat held out against anti-Congress
electors. Making a margin for the ultra sensitive nature of the constituency to
this grim threat we have to see whether this awesome propaganda has really been
made. Proof must be clinching, before grave charges can be made good. Oral
evidence, ordinarily, is inadequate especially if it is of indifferent quality
or easily procurable.
P. Ws. 3, 5, 6, 7, 8, 9, 14, 56 and 58 have
been relied on by the petitioner to press home the charge of threat of torture
or undue influence by that means. Of course, the villages' assigned to the
witnesses vary and the appellant has not only denied by his testimony but has
pressed into service other witnesses to repudiate the intimidatory imputation.
They are R. Ws. 28, 31 and 35 in regard to Salkathi Pathar village, R. Ws. 30
and 35 in regard to Palastholi village; R. Ws. 9, 12, and 38 relating to the
alleged meeting at Rowman; R. W. 28 in regard to palaswli Panbari village; R.
W. 36 with reference to Jarabari and R. Ws. 38 and 42 negating the story in
relation to Doomdoomia.
A brief and insightful survey of all this
testimony may now be undertaken. P. W. 3 swears that the appellant visited his
house on March 10, 1972 accompanied by R. Ws. 31 and 35 and others. When asked
he mentioned that as before he intended to vote for the petitioner-respondent
whereupon the appellant told him that according to the latest system of
election 'my thumb mark shall be taken on the ballot paper and if it was found
that I had voted for a candidate other than a nominee of the Congress, I shall
be killed in the manner of East-Bengalese. I was also apprised that all those
voting against the Congress nominee shall be set up in a line and killed in the
way the East Bengalis had been done to death by the West Pakistanis'. This
threat turned his vote towards the Congress candidate, says the witness.
He had kept this terrible fact a secret till
after the defeat of the election petitioner. The gruesome version is too
terrifying to be true in the conditions prevailing in India in 1972. It must be
remembered that the election petitioner is a man of consequence being 121 the
President of the Managing Committee of a Madrasa in that area and former M.L.A.
Of course, the substantial vote he has polled also shows the poor deterrence
the alleged threat has had on the constituency. P. W. 5 encores this case of
threat and mentions the names of R. Ws. 30 and 35 as having accompanied the
appellant. The witness admits that at the 1967 General Elections he voted for
the communist candidate, i.e., the election-petitioner, and that he never
disclosed the present frightful threat having been made to him to anyone before
the election. A perusal of the evidence of these witnesses just referred to, in
the light of the contradiction by the concerned R. Ws., makes us extremely
hesitant to act on their deposition. Indeed we discount their credibility.
P. W. 6, the headman of a village and
President of a Madrasa, deposes to a public meeting in the Madrasa compound at
which the appellant and his supporter Shri Neog spoke.
The theme was the same except the ruddy
embroidery that if anyone voted for the communist candidate everything would be
bloodied like the communist flag. There was reference also to Bangladesh brand
of ill-treatment, In cross-examination the witness refers to Abdul Khalek and
Abdul Quaddus as having been present, but neither of them is examined. It is
surprising that till the poll was over this witness did not divulge the threat
of violence for getting votes to any one and this strikes us as improbable
remembering that the witness is a headman of a village. The appellant as well
as Shri Neog have contradicted this version. R. Ws. 12 and 38 have also denied
the holding of threats at that meeting. Of course, their evidence by itself may
not be compelling.
P. W. 9 speaks in the same strain as P. W. 6.
So also P.W. 14 who claims to be a Congressman while deposing antiCongress, not
a surprising phenomenon in election case evidence. It looks odd that this
witness should say that 'excepting Shri Neog aforementioned, no other Hindu
participated in the meeting. Such an open threat is likely to counter-productive
in a predominantly Muslim area, particularly when we remember that the
petitioner-respondent is also a man of considerable influence. There is
reference by P. W. 14 to ' some bustle in the meeting', when the threat was
uttered 'but I cannot say whether it was one of approval or disapproval' says
P. W. 14.
P. Ws. 7 and 8 have given evidence of
domestic delivery of the threat. Both of them speak to the visit at night of
the appellant and his revealing the change in the election rules which would
require thumb impression or signature to be appended to the ballot paper and
'the further shock to those who voted for the communist party that they would
be shot dead. The possible corroboration could have come only from one Abdul
Ghani and Isomuddin Master neither of whom is examined by the petitioner but
the latter figures as R. W.28 to deny the story.
P. W. 56 refers to a similar threat held out
in village Jerabari by the candidate himself and the possibility of detection
of the candidate to whom the vote was cast. This Homeopathic Doctor owns the
presence of Sahed and Anwar but neither of them has entered the witness box to
corroborate this case.
122 P. W. 58 was not even mentioned in the
witnesses' list although he repeats the true-to-type case of threat. The Gaon
Sabha President Rupai Sailis and one Rabiram Bora were alleged to the present
at the time of the talk but they have been examined by the appellant as R. Ws.
38 and 42 and have denied the whole case of threat.
We have to remember in assessing the evidence
of these witnesses that the election petition has been blissfully vague in
regard to the particulars in support of the averment of undue influence. More
than one amendment was sought and still neither the names of the persons nor of
the places so vital to induce credence and to show fairplay have been given. We
need hardly emphasize that one cannot pick up witnesses en route and march
;them into the witness box without running the risk of their apparently
consistent evidence from being disbelieved. After all we are dealing with a
quasi-criminal charge with serious consequences and all necessary particulars
have to be furnished in the election petition. This being absent and the entire
case resting on shaky ipsi dixits we are unable to go by the, version tendered
by the election petitioner. The upshot of the discussion is that we are far
from satisfied about the conclusive veracity of the case of undue influence and
have therefore to find against the election petitioner respondent.
Before taking leave of this part of the case
it is necessary to emphasise that the wisdom of the law of pleadings bearing on
election petitions has set down strict provisions to ensure that fairness of
opportunity is given in fastening corrupt practices on the successful
candidate. Section 83 significantly insists on all material facts and full
particulars being set forth at the earliest stage. To avoid this duty is to
play foul and we as umpires will not easily reckon the goal scored. The rules
of the game, in this decisive democratic game where power corrupts even the
techniques of proof, will be enforced in Court. Precedents are a profusion on
this issue and the law is so settled that we do not cite case-law in support.
Here, three amendments were sought and made, of the petition by the election
petitioner and objection about bold, vague, twilight allegations were urged by
the opposing party. And yet the election petition remains bereft of specificity
on vital matters. The penalty will, in any case, be a stricter, more sceptical
scrutiny of the testimony brought by the delinquent party. We frown on tactics
of keeping material particulars up one's sleeves. That is neither cricket nor
court process. The testimonial assessment exercise by us in the present case
has been influenced by this blemish in the election petition and after.
The last surviving corrupt practice of
bribery may now be examined from the legal and factual angle. The former,
simpliutic on the surface,, is blurred and beffling in certain practical situations.
Briefly, the charge is that the appellant offered to P. W. 12, Jabber Munshi, a
mulla or mosque functionary with religious influence over his fold, the
expressed object being 'to collect votes' for him. In evidence, the mulla
crystallised the case thus :
"The respondent No. 1 approached me and
said that he wanted to have a talk with me. Then respondent No. 1 took me
inside one of the rooms of Johuruddin's house and 123 there offered me Rs.
2,000/if I worked for him in the election in the two villages of which I
happened to be the Mulla. I turned down the proposal since it was unbecoming of
me and then came out of the room." A critical appraisal of the evidence on
this part of the case has lead us to conclude that the facts deposed to are
altogether untrustworthy. Facts failing, law becomes otiose. Even so, having
regard to the importance of the subject and largely out of deference to the
counsel who have addressed long arguments and highlighted the High Court's
reasons on the point we think it proper to express our opinion. For an incisive
understanding of the import of s.
123 (1) we Will assume the facts to be
correct. Precision in thought being essential, we will set out the provision
itself :
"123. Corrupt practices.-The following
shall be deemed to be corrupt practices for the purposes of this Act (1)
'Bribery, that is to say,(A) any gift, offer or promise by a candidate or his
agent or by any other person with the consent of a candidate or his election
agent of any gratification, to any person, whomsoever, with the object,
directly or indirectly, of inducing(a) a person to stand or not to stand as, or
to withdraw or not to withdraw from being a candidate at an election, or (b) an
elector to vote or refrain from voting at an election, or as reward to(i) a
person for having so stood or not stood, or for having withdrawn or not having
withdrawn his candidature; or (ii) an elector for having voted or refrained
from voting;
(B) the receipt of, or agreement to receive,
any gratification, whether as a motive or a reward(a) by a person for standing
or not standing as, or for withdrawing or not withdrawing from being, a
candidate; or (b) by any person whomsoever for himself or any other person for
voting or refraining from voting or inducing or attempting to induce any
elector to vote or refrain from voting, or any candidate to withdraw or not to
withdraw his candidature.
Explanation.-for the purposes of this clause
the term gratification' is not restricted to pecuniary gratification or
gratifications estimable in money and it includes all forms of entertainment
and all forms of employment for reward but it does not include the payment of
any expenses bona fide incurred at, or for the purpose of, any election and
duly entered in the account of election expenses referred to in section
75." 124 One thing is clear. A mere offer is enough, given the other
ingredients. An attempt to commit crime is as bad as the commission, if proved
infallibly. To pay money 'to work for him in the election' does it become illegal
gratification of the corrupt species ? We may slur over the minor gap between
'collecting' votes as Pleaded and working' for the candidate, as deposed, since
what counts is the evidence. A break down of the sub-section yields the
following components :
(i) An offer or promise by the candidate
etc., of gratification to any person, (ii) The object must be directly or
indirectly to induce an elector to vote or not to vote at an election.
The purpose of the provision is to ensure
poll purity and exclusion of pollution by money power. All elections involve
expenses and that is why s. 77 sets a ceiling on such expenses and impliedly
contemplates expenditure on election work. Such lay-out of money may be for
legitimate items. Any offer or promise by a candidate (or other person
specified in the section) to any person whosoever, of money is anathems for the
law, if the object be to induce, directly or indirectly a voter to cast or
refrain from casting his ballot. Here there is the offer by the candidate to a person
viz., P. W. 12. What is the specific object ? To make him work for the
candidate, viz., to persuade voters to support the paying candidate. There is a
legal line to be drawn here, which is fine but real. The payment of offer as
the case may be, may be to any person, but it must be linked with the object
predicated in the section. If the payment is to induce an elector to vote, be
it direct or vicarious it is corrupt. If it is any other oblique object, it may
be evil, not necessarily corrupt in the eye of the law. The language of the
provision can be stretched wide to cover even payments to do propaganda or
print posters or hire transport since they are calculated to induce voters to
vote. A narrow connotation is conceivable where only payments to the voters is
hit by the legal stick.
A pragmatic construction, inhibiting
corruption but permitting electioneering expense is the right one, although
many tricky projects may get through the legal mashes which law cannot help and
only public vigilance can arrest.
Reading s. 77, dealing with the ceiling on
election expenses and s. 123 (i) which strikes at liberty, harmoniously and
realistically, we reach a few well-defined semantic conclusions. To widen is to
be idealists and ineffectual.
To shrink is to fail in the goal of the law.
Mr. Garg rightly emphasised that in the light of the precedents of this Court
what the law aims at is a blow on the purchase of the franchise by direct or
indirect methods. You may buy influence of important persons which is bad in morality
but not yet in law. You may over-spend to create enthusiasm to the workers
which produces professional electioneers waiting for the season to please
candidates and parties. This vitiates the smooth wheels of the democratic
process but cannot be stanched by the tourniquet of the law. The rulings in 125
Ghasi Ram v. Dal Singh (1) and the one at Om Prabha Jain v. A bnash Chand(2)
have been cited at the bar and they make out that the vice is the bargain for
the ballot and what is obnoxious in the quid pro qua for the vote, however
accomplish.
If the candidate pays money to a V.I.P. of
the locality to use his good offices and canvass votes for him, it is a
borderline case, but if the money is paid as consideration for votes promised
to be secured by him using his sway, it is bribery even though indirectly
exercised. If the Mulla had been paid the money striking a bargain for getting
the votes in his ambit of influence, it is electoral corruption.
On the other hand, if it is money received
for the purpose of organising effectively the election campaign by hiring
workers, going round to places in car, meeting people and persuading them to
vote for the candidate, it is proper election expense. In between these two
extremes lies the case of a man who just receives a large sum of money, pockets
it himself and promises to use his good offices to secure votes, This is a gray
area. We are not called upon to pronounce on it in this case. We have no doubt
that a mammoth election campaign cannot be carried on without engaging a number
of workers of a hierarchical sort. Many of them may be man commanding influence
through goodwill in the locality. Some of them may be village V.I.Ps. social or
religious, our country being still feudal in many rural areas. The touchstone in
all these cases of payment or gratification is to, find out whether the money
is paid in reasonable measure for work to be done or services to be rendered.
Secondly, whether the services so offered amount to a bargain for getting votes
or merely to do propaganda or to persuade voters to vote for the candidate, it
being left to the voters not to respond to the election. It is a plain case if
a voter is paid for his vote. It is direct. It is equally plain if the payment
is made to a close relation as inducement for the vote. The same is the case if
it is paid to a local chief on the understanding that he will get polled the
votes in his pocket borough, in consideration for the payment. The crucial
point is the nexus between the gratification and the votes, one being the
consideration for the other, direct or indirect. Such being the contours of the
corrupt practice of bribery, let us consider the facts of the case bearing on
this question.
The allegations are that the appellant and RW
33 called PW 12 the Mulla to the house of RW 33 at Dhing Bazar on February 18,
1972 and offered to pay Rs. 2,000/for collecting votes. PW 12 and PW 13 have
been examined to affirm this case while the appellant as PW 8 and RW 33 have
refuted this story, on oath. The version is inherently improbable as it is
unlikely that such a corrupt offer would be made to a comparative stranger by
one conversant with election proprieties. It is particularly noteworthy that RW
33 has no special influence over this Mulla and his house need not have been
the venue for the offer of bribe. Sahed Ali, P. W. 13 is also not shown to have
any closeness to PW 12 and why he should get mixed up with this matter is not
easily understandable. PW 12 has sworn that he had neither worked nor canvassed
for any candidate at (1) [1963] 3 S.C. R.102,110. (2) [1968]3 S.C. R.111, 116.
126 any time and could not have been
therefore pressured this time by the appellant who is likely to know the
implications of this dangerous move himself being an Advocate. Before tile poll,
P. W. 12 did not mention this matter to anyone but it was divulged only a
fortnight after the election.
The graphic description of the appellant not
producing the cash along with the offer but suggestively opening his long cost
without showing the money is more dramatic than true.
P. W. 13 who corroborates in part the Mulla
also is too virtue to prevail upon Jabbar Munshi to work for the appellant, as
requested by the latter, as his evidence runs.
This witness would say that the occurrence
was around 10-30 a.m., but we have the evidence of Shri Moinul Haque Chowdhury
who came in a helicopter to address a public meeting on behalf of the appellant
that he and the appellant together landed in the place about mid-day. If really
the appellant was keen on hiring the services of the Mulla at a fancy price he
would have put more pressure on PW 13 than is discernible in the dicerent
answer of the witness :
"Respondent No. 1 asked me this much
that I should previal upon Jabbar Munshi to accept the money and work for him.
He did not ask me anything more though be told me that he had offered, Rs.
2,000/to Jabbar." In this context it must be stated that in the original
election petition the source of information regarding the allegation contained
in section C of Part I that bribery of Rs. 2,000/was not mentioned. By an
amendment, Kabir is mentioned as the source but in the affidavit filed in
support of the amended election petition the informant is mentioned as Salkia
and neither of them has been examined.
Nor are-we told how they came to know about
the secret offer. The overall view of the evidence bearing on this aspect
leaves us in grave doubt as to whether the Mulla had met the appellant at all.
We have already held that the facts as spoken to by the former, even if true do
not come within the relevant clause [s. 123(1)].
The evidence is purely parol, the accusation
one of reprehensible corruption and so, however attractive an offer of payment
to a Mulla for Muslim voters being influenced may appear to be, the court has
to be circumspect to a degree.
In our country where marshy areas of
religious fanticism survive into late twentieth century politics and
candidates, regardless of secular and even revolutionary faiths, succumb to
methods of vote-catching inconsistent with democratic scruples, approaching
Mullas, priests and pujaris may not be unfamiliar. But this vicious proclivity
cannot be combated by courts except when (a) clinching proof is adduced and (b)
the facts come within the clutches of the legal definition.
After all, poll purity is preserved not by
law alone but by a critical electoral climate.
The mere word of the Mulla, denied by the
appellant, is altogether insufficient to bring home the guilt, corroborated
though it is by P. W. 13.
Summing up our conclusions, we hold none of
the grounds pressed have been proved to the point of judicial certitude.
All that 127 judges, fallible instruments,
and cacooned by the record can hold in all conscience is that by human insight
and judicialised procedures, with all the limitations they in practice imply,
the truth is what our lights tell us it is, no more.
The appeal is allowed and the election
petition dismissed with costs throughout.
V.P.S. Appeal allowed.
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