Vatal Nagaraj Vs. R. Dayanand Sagar
[1974] INSC 204 (11 October 1974)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
KHANNA, HANS RAJ BEG, M. HAMEEDULLAH
CITATION: 1975 AIR 349 1975 SCR (2) 384 1975
SCC (4) 127
CITATOR INFO:
RF 1976 SC1187 (6) D 1985 SC 89 (9) RF 1985
SC1133 (8)
ACT:
Representation of the People Act (43 of
1951), ss. 77, 101 and 123(6)-Difference between facts constituting corrupt
practice and illustration of corrupt practice-Approach of trial Court to poll
verdict-Approach of appellate Court to evidence-Declaration' in favour of rival
candidate, when permissible-Reform of election law in relation to expenditure,
suggested.
HEADNOTE:
The appellant was declared elected to the
State Legislative Assembly and the first respondent, who get the next highest
number of votes, challenged his election on various grounds and also prayed
that he should be declared elected in the appellant's place. One of the grounds
alleged against the appellant was that by hiring, 10 cars for campaigning, and
spending money for printing election materials, be ,spent by way of election
expenses, money beyond the legal limit, and thus committed the corrupt practice
under s. 123(6) of the Representation of the People Act. 1951 The High Court
held this ground proved and also that some of the printed handbills contained
libellous matter, and set aside the election and declared the first respondent
elected.
In appeal to this Court,
HELD: The setting aside of the appellant's
election by the High Court should be confirmed, but the declaration in favour
of the first respondent should be set aside. [399 BC] (1) The numbers of the
some of the cars hired as set out in the petition were :different from those
given in evidence.
But the infirmity would not have any effect
on the first respondent's case since no prejudice has been sustained by the
appellant by the change and no integral element in the ground of corrupt
practice, namely excessive expenditure for the election, has been kept back. In
the law of election.
facts constitutive of corrupt Practice must
be averred in the petition itself or brought in by amendment by leave of court
within the limitation period. But particulars ;illustrative of corrupt
practices alleged stand on a different footing. Proof at minor variance with
alleged particulars may be allowed by the court Provided the opposite party has
not sustained any prejudice and is given an Opportunity for adducing rebutting
evidence. [388 G-389E] Bhagwan Datt Shastri v. R. R. Gupta, 11 E.L.R. 448, 456
followed.
(2) Where the trial court has watched the
delivery of testimony by the witnesses its opinion on their credibility is
entitled to much credit by the appellate court. [389G-H] (3) An election
tribunal must know that there exists an initial presumption in favour of the
poll verdict; and that the whole constituency is invisibly party to the lis.
The voice of the voters will be interfered with only if the votes in favour of
the elected candidate were illegally procured. In the present case, the High
Court has weighed the evidence fairly and correctly. The approach of the court
to the evidence is impeccable. There mayhave been adulteration of evidence;
but, after full consideration of the finding of the High Court that the
appellant had committed the corrupt practice under s. 123(6) must be confirmed.
[390 C-D, E-F; 394H-395A] (4) But assuming that some of the allegations in the
hand bills undoubtedly amounted to character assasination of the first
respondent and injured his poll prospects, and group disaffection or threat, as
stipulated in s. 123, could be ,read into them the sanctity of the poll verdict
will stand violated, if the tribunal without the strict compulsion of statutory
provisions, substitutes for an elected representative a court picked candidate.
The requirements under s, 101 before the 385 court can declare a rival
candidate as the returned candidate, are (a) the returned candidate must have
obtained votes by operation of corrupt practices, (b) such tainted votes must
be quantified with judicial assurance, and (c) after deduction of such void
votes the petitioner or some other candidate must be shown to have secured a
majority of the valid votes. Therefore, in the present case the decisive factor
would be satisfactory proof of the number of votes, if any, attracted by the
appellant into his ballot box by the corrupt means proved against him. But
there is no evidence to show how many votes were definitely obtained by the
appellant by the use of corrupt practices. There is no link between the
polluted practice and the voters affected. Further, there is nothing to show
why those voters would have Preferred the first respondent and not any other
candidate, there being as many as 10 contesting candidates. [396 B-C, H-397E;
398B-D] T. Nagappa v. T. C. Basappa, A.I.R. 1955 S.C. 756 and Jamuna Prasad v.
Lachhi and, AIR1954 S.C. 686, 689: [1955] S.C.R. 608. referred to.
(5) Money power casts a sinister shadow on
our elections Further, there is a built-in iniquity in the scheme, because, an
independent candidate who exceeds the ceiling prescribed under the law commits
a corrupt practice, but his rivals set up by political parties with
considerable potential for fund-raising and using, may lay out a hundred times
more in each constituency on their candidates and yet escape the penalty under
s. 77 on the ground that the excessive expenditure was not spent by the
candidate but by the party for its campaign. This evasion of the law by using
big money through political parties is a source of pollution of the Indian
political process. It may therefore be proper to infuse into the election law
the cleansing spirit suggested by this Court in Kanwarlal Gupta v. Amar Nath
Chawla [1975] 2 S. C. R. 259 and by the Select Committee on the Indian Election
Offences and Enquiries Act, 1920. Elections. constituency wise. are the corner
stone of our parliamentary system and if the law is to reflect and ensure the
democratic norms set by the nation in this strategic area, serious political
consensus. not sanctimonious platitudes, on reducing the heavy expenditure on
election by parties and candidates, must emerge. it is only to a limited extent
that courts can respond to the fulfillment of this constitutional aspiration by
a benignant interpretation of the legal limits on election expenditure set down
in s. 77. [399 D-H; 400 A-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1738 of 1973.
Appeal from the Judgment and order dated the
6th November 1973 of the Karnataka High Court in Election Petition No. 4/72.
V. S. Desai, B. K. Ramachandra Rao, S. B. Chandrasekhar
and R. B. Datar, for the appellant.
A. K. Sen, V. K. Govindrajulu, V. G. Vasanth
Kurnar and M. Veerappa, for respondent No. 1 Dewan Balak Ram, for respondent
No. 2 The Judgment of the Court was delivered by KRISHNAIYER, J.-The locale of
this election litigation, now at the appellate stage, lies in Bangalore, an
industrial city inhabited by a blend of multireligious poly-lingual
communities. But, when a pathological power-scramble is on, the politics of
stoop-to-conquer shows up in forms of unscrupulous opportunism and investment
in group hatred and the Chamarajpet constituency in Bangalore City is alleged
to have been injected by this virus by the appellant at about the time the
State Assmbly elections in March, 1972 were hold. If multi-form corruption
corrodes the electoral process--and that is the imputation here the gutter can
come to power to adopt a phrase used 386 in a different context by a great
writer. Judging by the general trend of vice and violation organised as
election strategy, only glimpses of which Judges get in election cases, we
wonder whether parties and individuals who practice these oblique techniques,
fully realise the moral of the Frankenstein's monster episode. These dark
forebodings, however, do not deter us from applying the sound tests laid down
by a long line of cases in interpreting the provisions and evaluating the
evidence in election cases. Out task has, however, become more uneasy because
both sides have liberally contributed dubious testimony in a bid to win their
respective cases.
A brief diary of events will bring into focus
the issues over which the forensic controversy has raged. Sixteen persons filed
nomination papers from the Chamarajpet constituency, six discreetly withdrew
and the surviving ten went into battle on March 5, 1972 the date set for the
poll.
The voting strength of this constituency was
97,379 but the actual votes polled was only 52,720. While the D. M. K. and the
Muslim League made a relatively good showing securing over 7,000 votes each,
the real bout was between the appellant, an Independent glamourised as a heroic
agitator for Kannada, the language of the vast majority of the people of the
then Mysore State and the 1st respondent, a Congress Party candidate enjoying
consequential advantages. The appellant won, polling 15,486 but the 1st
respondent was close behind with 14,412. It is art uneasy feature that in our
electoral system, even with hot contest as here, sometimes only half the voters
turn up to exercise their franchise and he who gets 15 % of the total votes of
a constituency acquires the 'right to speak and act as its plenary proxy in the
Legislature. We do not regard this aspect as falling within our province since
this vexed question is Parliament's concern. Anyway, the infirmity of the poll
victory agitated before us is that even this 15 % was the product of illegal
tactics sufficient to invalidate the election of the appellant and, what is
more bathetic, the further relief sought is that the on(,, who got only 14%
i.e. the 1st respondent, should be declared the authentic elected member of
Chamarajpet.
The charges made by the 1st respondent to
demolish the declaration of the appellant made by the Returning Officer on
March 11, 1972 relate to certain malpractices between February 11, 1972 and
March 5, 1972. It is a melancholy reflection op. the 1st respondent's
methodology of winning his election petition that he has adduced evidence. some
of which bears traces of forgery and tricky photography backed by perjury. This
finding by the trial Court has not been shaken in argument before us. One
should have expected a legislative aspirant representing a national party, an
exDeputy Minister and barrister, to be cleaner in the Court while charging his
opponent with corrupt practices at the polls.
The young appellant had personalised himself
as the spearhead and become the President of the Kannadiga movement and its
Chaluvali Kendra Mandali. The popular identification of the candidature of
Vatal Nagaraj, the appellant, with this somewhat passionate Organisation is
gleaned from the fact that his Chief Election Agent in 38 7 Chickpet, Sampangi
P. W. 8, was the Secretary of the Mandali and on his resignation in May or
June, 1972 Prabhakara Reddy, the Chief Election Agent of the appellant in Chamarajpet,
took over the Secretaryship (The appellant was a candidate in. both the
constituencies, which were contiguous). It serves our understanding of the
forces at work better if we also remember that there are sizable Tamil and
Muslim groups in Bangalore. Some of the corrupt practices alleged are linked up
with Tamil presence in the City. While economic grievances and social
backwardness are the basic causes of what, on the surface, shows up as language
or parochial chauvinism, the fact remains that the masses are easily inflamed
by economic-linguistic appeals peppered by provincialism.
We may now proceed to set out briefly the
charges leveled against the appellant, highlighting only those which have found
favour with the trial Judge. However, the structure of s. 123 of the
Representation of the People Act, 1951 (hereinafter called the Act, for short)
is such that where a candidate is guilty of one or many of the enumerated
corrupt practices, his election must be set aside and he should be visited,
under s. 77 of the Act, with a six-year period of disqualification. In that
view, it may well be that if we are satisfied about one of the several charges,
the appellant must lose. However, we shall deal with the allegations and
evidence concisely, so that the conspirator of the case may not appear
distorted, although primarily we propose to deal with the excess expenditure
beyond the legal limit held by the trial judge to have been incurred by the
appellant.
While a close-up of the few counts on which
the appellant has been held guilty is necessary, a quick look at the fasciculus
of charges, many of which have been negatived, may unfold the characters of the
play, their integrity and the foul measure, apparently fair persons resort to,
sacrificing means to ends. Purity in elections is a social process of public
concern and national consensus, not just a legislative package or judicial
verdict.
The publication of many copies of offending
leaflets at some cost, the hiring of tort cars at over Rs. 10,000/and the payment
of Rs. 500/to a Kannada Organisation hopefully to enlist their poll support,
are the lethal vices, inter alia, levelled against appellant Nagaraj to undo
his election. In the unhappy national context, of unprintable flood of
leaflets, movement of fleets of automobiles, slanderous speeches and huge sums
big Parties and rich candidates regard as the: natural resources to be
exploited in aid of the politics of power-grab through adult franchise, this
election petition projects a mountain. molehill contrast.
But the Court can only correct what comes
before it and perhaps sound warning bells about the enormity of the environmental
pollution during elections, for statesmanship to act, if' law in this area is
not to be robbed of pervasive potency.
The Catalogue of corrupt practices begins
with an election eve gift of Rs. 500/by this Kannada fighter and President of
the Kannada Chaluvali Kendra Mandali, to the Karnataka Yuvaka Pourara Sangha,
0-255Sup.CI/75 388 Bangalore City, motivated by an appealing for voting support
from its members. We are relieved from investigating the legal import of such
financial support to an Organisation wedded to the programme which is also the
passion of the candidate since the story has been rightly rejected by the High
Court and we agree with it. Certain photographs (Exs. P-7 and P-15) alleged to
have been taken by P. W. 3 (an enemy of the appellant) at the Mandali Office
and the maiden in Azad Nagar, respectively, on February 20, 1972 were relied on
by the Congress ,candidate in this connection and the Court, after a detailed
study, discovered that there were really taken on April 14, 1972 long after the
,election at a school where he (the appellant) was lured,'taking advantage of
the 1st respondent's age and vanity' and were cleverly fobbed off on the Court
in hopeful proof of the offending February gift of Rs. 500/-. The agent used
for this purpose was P. W. 30 and the learned Judge assessed him thus:
"P. W. 30 Raghunath Singh is a creature
of the petitioner, who acted as a spy in the opposite camp" a fifth column
tactic hardly fair, if it is true. A suspicious February ,edition of a
newspaper called Karmika Vani (Ex. P. 10) carrying two photos taken in April
have also been introduced by the 1st respondent Dayananda Sagar. He has also
placed a makebelieve letter Exhibit P. 26, signed by the appellant as evidence
of car hire payment although the trial Judge has seen through the 1st
respondent's sharp practice. Vatal Nagaraj, invited to a school function, gave
his post-election autograph to children in an exercise note book which page was
later perverted to appear as a letter forwarding part of the car hire charges.
This shady species of conduct in election litigation by seemingly important
persons make us wonder whether character assassination cannot be self
inflicted.
We will now move on the crucial issue of over
spending by the appellant. He is alleged to have hired, for campaigning, ten
cars from the Bangalore City Cooperative Transport Society, the hire ,charges
being Rs. 12,600/-.
Likewise, a sum of Rs. 7,500/-, it is stated,
,was paid by the appellant to Nirmala Printing Press which was run by P. W. 2
Devraj, for printing election materials.
An initial objection was raised by Shri
Desai, arguing for the appellant, that there was substantial variation between
pleading and proof in this regard, that the numbers of the cars hired, as
mentioned in the petition, were different (regarding 6 out of 10) from what had
been put forward in the evidence and this divergence had the triple crippling
effects of causing prejudice, casting suspicion and disallowing the plea.
Factually, Shri Desai is right but, legally, his objection is bereft of force.
389 The law of elections is clear on this
branch of pleading and proof and a sense of brevity forbids citation of a
string of rulings where the rule of law is indubitable. Litigation is no hide
and seek game but a search for truth and parties must place their cards on the
table. And procedure is the handmaid, not the mistress, of justice and cannot
be permitted to thwart the fact-finding course. In election jurisprudence
tracking down corrupt practices is of paramount importance. In doing this the
rules of the game must be fairly observed. Facts constitutive of corrupt
practices must be averred in the petition itself or brought in by amendment by
leave of court; within the limitation period. The opposite party is thus put on
his guard as to what charges he has to meet. Particulars, illustrative of the
corrupt practices alleged stand on a different footing.
Even if there have been initial omissions in
pleading, they can be made up, by Court's leave, at any time. What is more to
the point here-or it is common case that errors in particulars of car numbers
have at no stage been rectified in the present case-proof, at minor variance
with alleged particulars, may be allowed, the course open to the opposite party
being to satisfy the trial Judge of prejudice sustained and of opportunity for
adducing rebutting evidence. To shut out cogent and clear evidence of
particulars of corrupt practice (the ground itself being in the pleadings) on
processual technicalities is to orphan the real, though absent, party viz., the
silent constituency.
This Court, in Bhagwan Datt Shastri v. R. R.
Gupta(1) set out the true rule:
"The question in such a case would not
be one of absence of jurisdiction but as to whether there has been any material
prejudice occasioned by the absence of particulars. It is in that light that
the validity of the objection raised by the appellant in this behalf before us
had to be judged. It is, therefore, necessary to scrutinise the nature of the
evidence on which this finding has been arrived at and to see whether the
appellant had a fair opportunity of meeting it." Having heard Shri Desai
at length, we are not persuaded that the infirmities he complains of have
validity in the case on hand. No prejudice has been sustained by the change in
the numbers of the taxi cars and no integral element in the ground of corrupt
practice viz. excessive expenditure for the election has been kept back.
indeed, even most of the particulars have been correctly set out.
Before proceeding to examine the evidence, we
must make a further cautionary observation. When the trial Court (here a Judge
of the High Court') has had an overall view of the case through the very
process of oral and documentary unfolding, that panoramic perception cannot be
equated with the studious perusal of the printed record by a higher court.
Where the tribunal has watched the delivery of testimony by the witnesses, some
with equivocating university, others with nervous truthfulness or confident
glibness, its opinion on credibility is entitled to much credit at the
appellate stage. Of course, (1) 11 E. L. R. 488,456.
390 even among the judiciary a subjective
factor in judging men and matters may creep in and so complete dependence on
the assessment of human candour and cunning by trial Judges can degenerate into
legal superstition.
It is apt to remember the words of Judge
Jerome N. Frank(1) as a warning:
"We do know, from occasional candid
remarks by trial Judges, that some of them utilise absurd rules of thumb such
as these: A witness unquestionably lies who, while testifying, throws back his
head or wipes his hands or shifts his gaze rapidly; or blushes, or bites his
lips or taps steadily on his armchair".
Having carefully considered the matter, we
are convinced that the High Court has weighed the evidence fairly, tested the
character carats of witnesses correctly and reached results rightly.
The trial Court has adopted a legally
impeccable approach in assessing the evidence, as was pointed out by Shri A. K.
Sen, counsel for the 1st respondent. Corrupt practices have to be viewed as
quasi criminal in character and the strict ' standard of proof applicable in
such cases, in tune with the decisions of this Court, has been used as a
touchstone by the trial Judge. The question is whether the few corrupt
practices, upheld by the High Court, have been proved beyond reasonable doubt
or whether the appellant has been able to make any big dent in the case found.'
We will now discuss the heads of charge, itemwise. The printed election
literature has a dual roll in this case (a) to boost the cost beyond the legal
ceilling and (b) to prove character assasination. Both are corrupt practices. A
threat to Tamils i.e. undue influence; is also alleged to be involved in the
handbills in question, Ex. P. 4 and Ex. P. 5.
Indeed, an election tribunal must know that
there exists an initial presumption in favour of the poll verdict and the whole
constituency is invisibly party to the lis, their voice being interfered with
only if their votes were illegally pro-cured. As earlier indicated, this
leaflet imputation may, in order of probative importance, be considered at a
later stage since we are satisfied that its impact is somewhat indirect and its
proof a shade inconclusive, notwithstanding the use to which Shri A. K.
Sen has sought to Put it in supporting the
declaration, under issue no. 11, that his client "obtained as the returned
candidate.
The critical issue which, in our view, is
fatal to the appellant's election, is the layout on hiring cars. By itself,
that item exceeds Rs. 10,000/and if true, the election must be set aside,
without more. Issue 9 (b) relates to this subject and Paragraph 14(b) of the
petition sets out this ground. As stated earlier, while the numbers of the ten
cars are enumerated therein, the last six do not tally with the documents
produced or the Bangalore City Cooperative Transport (1)Judical fact finding
and psychology, 14 Ohio State Law Journal, 183, 186 (Spring 1953)-quoted in
Psychology and the Law by Dwight G. McCartyprentice-Hall, Inc., Englewood
Clifts, N.J., USA (1967 4th Printing).
3 91 Society which was the bailor. The case
is that the above Transport, Society had fallen on evil days and so had
authorised its President, one Swaminath, P. W. 7, to ply its vehicles on a no
profit no loss basis. Swaminath, who had thus taken over the transport
operation with effect from August 1, 1971 and had, in turn, run a transport
service in the name of Coop. TOUR COMBINED BOOKING Centre is stated to have
agreed to make available 10 cars on hire to the candidate Nagaraj. Rs. 60/per
day per car, exclusive of driver and fuel, from February 14, 1972 to March 5,
1972 were the terms alleged. It is further averred that the candidate had
authorised Sampangi, P. W. 8, to arrange for the hire of these 10 cars on or
about February 10, 1972.
The latter had made an initial payment of Rs.
3,000/on February 12, 1972 through P. W. 30, Raghunath Singh, already referred
to. The case runs on to the effect that a sum of Rs. 9,600/was outstanding as
payable to P. W. 7 on April 10, 1972 when the appellant lodged his account of
election expenses, as required by statute. It is common ground that he did not
enter the sums paid or payable by way of hire charges to P. W. 7 in his account
submitted to the Election Commission. The petition sets out the payment, on
April 14, 1972 of a sum of Rs. 1,000/to P. W. 7's Society towards car hire and
this sum is stated to have been sent through P.
W. 30, Raghunath Singh. Of Course the
appellant, in his written statement-has denied this story of hiring and piecemeal
payments, knowing fully how noxious its effect would be on his victory, in the
light of s. 77 of the Act.
We may straightway state that the learned
Judge who tried the case has referred to P. Ws. 8, 30 and 7 as the principal
witnesses to prove the hiring in of the cars. However, he has already described
P. W. 30 as a spy of the Congress candidate who had slyly operated among the
flock of Nagaraj, and has discredited him as an unscrupulous person. The
learned Judge has also discarded the testimony of P. W. 8, Sampangi, for
reasons which are self-evident, even if one casually peruses his deposition. He
is a self-condemned perjurer and has hardly any claim to judicial credence,
particularly in a case of proof of corrupt practices in an election petition.
Without expanding on these unscrupulous souls any further, we concur with the trial
Court in proceeding to reject that part of the case of the petitioner which
lives solely on the lips of P. Ws. 8 and 30. But the fact that these two
dubious beings have been frequently friendly with falsehood does riot destroy
the acceptability of their testimony to the extent it accords with other
authentic documentary material and reliable verbal testimony. Indeed the trial
Judge has discerningly observed:
"I am placing dependence mainly on the
documentary evidence under this issue, supported by the testimony of P. W. 7,
Swaminath." 392 This, we think, is a flawless approach. We are constrained
to remark that experience proves the wisdom of scepticism in assessing oral
evidence in Court. In the words of Osborn(1):
"The astonishing amount of perjury in
courts of law is a sad commentary on human veracity.
In spite of the oath, more untruths are
probably uttered in court than anywhere else.
This deviation from veracity ranges from mere
exaggeration all the way to vicious perjury.
Much of this untrue testimony grows directly
out of human nature under unusual stress and is not an accurate measure of
truth speaking in general. In order to shield a friend, or help one to win in
what is thought to be a just cause, or because of sympathy for one in trouble,
many members of the frail human family are inclined to violate the truth in a
court of law as they will not do elsewhere,." The High Court's discussion
is exhaustive. The arguments before us have not suffered from inadequacy and
since we are affirming the principal conclusion of fact of the trial Judge we
content ourselves with stating only the essential reasons.
The version of the petitioner regarding the
vehicles (although with different registration numbers has been substantially
spoken to by Swaminath, P. W. 7. Most of the details deposed to by him fit in
with the original averments and trivial discrepancies cannot disturb factual
appreciation of the core.
P.W. 7, the President of the Society, has not
been shown to be either interested in the petitioner or animated against the
appellant. If, as he swears, he did run the business of transport during the
relevant period, there is no reason to be sceptered about acting on his word on
oath.
Exhibit P-22, the proceedings book of the
Board of Management of the Society, contains entries, dated July 2, 1971 (P
22A) evidencing the authorisation in his favour by the Board of Management. The
marginal doubt, generated by the fact of the resolution, Exhibit P-22A, put him
in charge of the Business only until January 31, 1972 while the period of the
hiring was beyond that date, is insufficient to shake his testimony in the
light of all the other circumstances.
For, until April 17, 1972 the Board of
Management had not made over its transport business to anyone else. On the other
hand, Ex. P. 22B, the proceedings of the Board at its meeting held on April 17,
1972 (item No. 4) reinforces the case spoken to by P. W. 7. The criticism that
these proceedings could have been manipulated into life subsequently stands
crushed by the endorsement Exhibit P22A(1) made on the proceedings book by the
Assistant Registrar of Cooperative Societies, Shri Bhatia, on April 5, 1972.
Even otherwise, P. W. 7's story suffers form no inherent improbability and
there is no presentable alternative put forward by the appellant as to how he
ran the automobile part of his election campaign. He swore, more incredibly,
that he covered the 25 square miles of his constituency on foot, during the
hectic period (1) 'The Problem of Proof' Albert S. Osborn, pp. 22.23 New York,
Methew Bender & Co. 1926-quoted In (2) ibid, p. 226.
393 of this bitter election campaign. May be,
he had many volunteers ,Of the Chaluvali Kendra Mandali to support him and they
might well have covered the area on bicycles. May be, being militantly
identified with an agitational issue (Kannada for Kannadigas, to capsule the
movement in a slogan) his monetary inputs might have been puny compared to his
more prosperous Congress rival. Evan so, the Padayatra programme, eschewing
automobile journeys altogether, is too unrealistic and mendacious to be taken
seriously. Moreover, there is other documentary evidence in proof of payment of
hire charges. Exhibits P-23, P-24 and P-25 deserve probative credit, in this
context, P. W. 8, Sampangi, is seen to have signed them and even if we
disbelieve the integrity of P. W. 30 who is alleged to have carried Exlaibit
P-23 or of P. W. 8, who, admittedly, has signed that letter, there is no gain
saying the fact that documentary evidence of advance payment of Rs. 3,000/is
forthcoming Exhibit P-24, dated February 12, 1972 is a letter written by
Swaminath to Nagaraj and Exhibit P. 24A is the office copy. Exhibit P-25
further clinches the matter since it acknowledges the delivery of the cars and
bears the signature of P. W. 8, Sampangi, appended on behalf of his principal,
Nagaraj. Not P. W. 8 nor P. W. 30, but the documentary testimony and the
credibility of P. W. 7 influence our conclusion.
Two major criticisms were levelled against
this branch of the case by Shri Desai. Certain minor weaknesses were also
pointed out which, for general considerations already indicated, do not need
lengthy scrutiny. He contended that P. W. 8, Sampangi, was not his election
agent in Chamarajpet Constituency and was an obvious betrayer who had been
bought up by the more powerful petitioner so much so his words or signatures
could not command judicial confidence. Secondly, he urged that the evidence of
P. W. 7 and the documents stood shaken in view of the reference therein to
Exhibit P26 which had been found by the trial Court to be a forgery.
We may examine the force, if any, of these
submissions.
P. W. 8 is a consummate artist in
terminological inexactitudes who owns up in cross-examination, with
melodramatic audacity both perjury and fabrication. Even so, his political bond
with Nagaraj during the election is undeniable. They were President and
Secretary of the Chaluvali Kendra Mandali until May or June 1972 when the
latter resigned. P. W. 8 was Chief Election Agent of Nagaraj in the adjoining
Chickpet Constituency and could riot have confined his busy campaigning,
activated by the larger Kannada cause, to the territorial limits of Chickpet.
In June he ran for the Legislative Council seat from the Teachers' constituency
and Nagaraj appealed for electoral support through a newspaper column carrying
his photograph.
Haunted though we are by hunches about the
distance between honest processes of proof and the petitioner's modus operanti
in Court, unhesitatingly we held that Sampangi. P.
W. 8, was an activist lieutenant of the
appellant during the critical months of February, March and April.
394 Exhibit P-26, if we may recapitulate, is
that pernicious paper on which Nagaraj scribbled his then sought-after
autograph at a school function, hardly suspecting its potential transmigration,
into a letter forwarding a part of the car hire. Without trivialising the
trickery played upon the appellant for which vicarious guilt must belong to the
1st respondent, we find no difficulty in delinking this documentary effort at
over-kill, through Ex. P. 26, from the other dependable evidence of hiring 10
cars. Some holes of perjured evidence somewhere cannot sink the whole case
which can safely float on other tested testimony. All cobwebs of suspicion are
brushed away by Ex. P. 28 and P.
29. Finding a large sum outstanding from
Nagaraj by way of car hire, P. W. 7 Swamiriath, a financially weak person,
wrote to the treasurer of the Mandali pleading that since the appellant, the
President, had owed a substantial amount in connection with the election where
the Mandali had backed him the treasurer Lakshmipathi had better make good the
money and adjust with the President later. Pat came the reply Ex. P. 29 from
Lakshmipathi disowning liability from the Mandali. Again,. Swaminath (P. W. 7)
pursued his claim by writing for balance payment to the appellant with a copy
to P. W. 8 (vide Ex. P. 30). What followed (it rings true) may be rendered in
the words of P. W. 7:
"I received the reply Ex. P. 31 from
Sampangi. It is dated 22-4-1972. Through the reply Ex. P. 31 Sa. Kru. Sampangi
asked me to accept Rs. 8,000/from 1st respondent Vatal Nagaraj in full
settlement. I went and collected Rs. 8,000/from Sa. Kru. Sampangi on behalf of
the I st respondent Vatal Nagaraj on 24-4-1972, issued a temporary receipt. The
office copy of that receipt is Ex. P. 32. On 25-4-1972 1 wrote to the
respondent Vatal Nagaraj, with a copy to Sa. Kru. Sampangi and sent that letter
by post. The office copy of that letter is Ex. P. 33." We have the
corroborative evidence of the receipt book kept by P. W. 7 Ex. P. 34 in his own
words;
"Exs. P. 34(a), P. 34(b), P. 34(c), P.
34(d), P. 34(c), P. 34(f), P. 34(g) P. 34(h) are the respective receipts
regarding cars Nos. MYA 3981, MYD 9030, MYD 7575, MYD 6756, MYA 4044, MYA 4114,
MYD 9779 and MYA 3633. The receipt Ex. P. 34(1) refers to the Society Car MYD
7222 and the receipt Ex. P. 34(1) refers to the Society Car MYD 8600".
These receipts relate to cars of others taken
by P. W. 7 to make up the ten cars agreed to be supplied, his Society itself
being only in possession of two cars. This wealth of documentary material is
convincing enough, in the background of the trial Court's remark : P. W. 7
Swaminath has stood the test of cross-examination well and his answers seemed
to be forthright." Shri Desai did exploit the divergence in car
registration numbers and the unsatisfactory explanation ,offered by the 1st
respondent in that behalf. So also the spurious Ex.P. 26. Adulteration of
evidence perhaps there is, but, after full con3 95 sideration of the total
material we are satisfied with the affirmative finding on issue 9(b) given by
the High Court.
Shri Desai feebly suggested that P. W. 6 was
not his agent in Chamarajpet but in Chickpet, and P. W. 30 was riot his men at
all. We have disposed of the factual part of this plea but the law of agency in
election jurisprudence, it may be rioted, is more elastic. In a sense, the
corrupt act need not be done by the candidate or his chief election agent. It
is enough if it is authorised by either, as we will later show and here the
hiring was done as authorised by the candidate.
The anxious 1st respondent has made many
other charges of corrupt practice which,havo been repelled by the trial court
and we concur. But two invalidating imputations have been repelled by the trial
Court and we concur. But two invalidating imputations have been upheld by the
learned Judge, both turning on the printed election material, its cost and
libellous toxicity. We are not disposed to dissect the evidence in detail on
these twin charges since a single fatal stab is as good as multiple mortal
wounds if death is the goal. But the 1st respondent's ambition is not merely to
destroy the declaration of the appellant but to instal himself as the Chamarajpet
MLA through the judicial process.
"There's the rub". of course, if
the law allows it he must get it. Exhibits P-4 and-P. 5 are two handbills in
Kannada and Tamil, respectively and exhibit P-9 is the election manifesto of
the appellant says the 1st respondent. Of course, the appellant has denied
responsibility for this offending literature and has gone to the extent of contending
that the alleged printer P. W. 2 was a vegetable vendor injected into the scene
by the. 1st respondent as an evenescant lessee of a press who, ostensibly,
appeared on the scene about the time of the election, engaged himself solely in
printing the appellant's election matter an( vanished from the printing scene
back to his vegetable vendors job after the election. May be the story, prima
facie, is suspect, but, on a closer scrutiny especially with Ex. R. 6 in mind,
the finding of the trial court must pass muster. There is also some evidence of
these leaflets being distributed by the workers of Nagaraj. Considerable debate
there was at the bar as to whether Exhibit P-4, ever if true, amounted to
character assassination, or other corrupt practice, but at least a portion of
it relating to payment of money to voters undoubtly injures the petitioner's
good morals although many other statements may hover around the border line or
cannot constitute corrupt practice.
Accepting Ex. P. 4 as a passionate plea for
Kannada and criticism of the rival as one who argues for English, it is not
'Character assassination, nor is a militant demand for larger areas for
Karnataka State corrupt practice. Even notions on nude dances and or economic
exploitation of people cannot be judged by mid Victorian prudery when
interpreting s. 123 of the Act. We have to be aware of realities informed by
the current ethos of the community and remember the usual margin of electoral
exaggeration, while construing such speeches and writings. It is indisputable
that if the printing has been done. by the appellant or his election agent
arid. the cost thereof was as pleaded 396 in the petition, the ceiling on
election expenses set by the statute would be further exceeded.
We are not inclined to upset the holding of
the High Court that "there can be no reasonable doubt that regarding the
handbills Exhibits P-4, P-5 and P-9 the petitioner's version is true" but
do not embark on any long discussion as it is uncalled for. But the almost
astrological' consequence claimed to be flowing there from that the 1st
respondent would have obtained a majority of valid votes demands fuller
examination. For purposes of argument, let us assume that Exhibits P-4, P-5 and
P-9 were printed and distributed prior to the election and that P. W. 2 had
been paid Rs. 7,500/as printing charges. We may similarly assume that personal
aspersions and implicit group disaffection or threat as stipulated in S. 123 of
the Act could read into these leaflets, as claimed in the petition. Even so,
What? This takes us to issue No. 11 which, perhaps, is the second most
contested question in the whole case. Having exceeded, on our own finding, the
financial ceiling set by S. 77 of the Act, a corrupt practice has been
committed by the appellant and his election has been rightly set aside by the
High Court. Inevitably, under S. 8A of the Act, the appellant has to be visited
with the punitive six-year disqualification. So the High Court's finding oil
issue No. 12 also must stand.
The only bitter bone of contention between
the parties which survives is covered by issue no. 11. The sanctity of the poll
verdict will stand violated if the tribunal, without the strictest compulsion
of statutory provisions, substitutes for an elected representative a Court
Picked candidate. The relevant part of S. 101 may well be set out at this
stage:
"101. Grounds for which a candidate other
than the returned candidate may be declared to have been elected: If any person
who has lodged a petition has, in addition to calling in question the election
of the returned candidate, claimed a declaration that he himself or any other
candidate has been duly elected and the High Court is of opinion.
(b) That but for the votes obtained by the
returned candidate by corrupt practices the petitioner or such other candidate
would have obtained a majority of the valid votes, the High Court shall after
declaring the election of the returned candidate to be void declare the
petitioner or such other candidate, as the case may be, to have been duly
elected.
The insistent requirements of the section are
that firstly the returned candidate must have obtained votes by the operation
of corrupt practices; secondly, such obtained votes must be Quantified with
judicial assurance and thirdly, after deduction of such void votes, the
petitioner 397 or other candidate must be shown to have secured a majority of
the valid votes. In the present case, the decisive factor is the satisfactory
proof of the number of votes, if any, attracted by the appellant into his
ballot box by the corrupt means. How many. voters were lured for certain by the
expenditure of several thousand rupees more than is sanctioned by the law ? Did
the campaigning in those hired cars. snatch votes at all ? Did deleterious
leaflets draw into Nagaraj's net a specific set of voters : To capsule the
enquiry, how many votes were definitely obtained by the use of each corrupt
practice? This hinges not on mystic maybe And vague imponderables and prejudice
to prospects but on tangible testimony that a number of persons, arithmetically
assessed, swang towards and probably actually' for the returned candidate,
directly magnetised by the corrupt practice, so that one could positively
predicate those votes as having been obtained by corrupt practices. This clear
nexus is of critical importance. Happy speculation, hypothetical possibility
and clairvoyant surmise, however imaginatively and objectively made, cannot
displace this drastic requirement. Where, for instance, a certain number of
persons, in violation of the legal ban, have been transported by the candidate
and they have been shown, with fair assurance, to have cast their votes in his
favour or where specific cases of false personation or double voting at the
instance of the candidate or his agents have occurred and the margin of
difference between the victor and the nearest vanquished is narrow and the gap
is more than made up by the illegally procured votes, the case for the
application of s. 101 will surely arise. Courts do not elect candidates or sign
into parliamentary seats those whom the constituency has not yet favored The
normal democratic process cannot be bypassed conveniently on the score of
corrupt practices by the rival except in those exceptional cases where s. 101
stands fulfilled. You must win not only an election petition but an election
itself.
The decisions cited before us by Shri A. K.
Sen do not take us further. Indeed there is a paucity of precedents in this
area, for reasons which are not difficult to guess. In T. Nagappa v. T. C.
Basappa(1) this Court had to deal with a case where the lead of the winner was
only 34 votes, there was cogent proof of about 60 voters having been
transported by the offending candidates to the polling booth of whom 47 voted
for him so that, if their votes were struck out, the margin of difference would
disappear and the loser would have secured the larger number of valid votes.
There the learned Judges were at pains to point cut that the petitioner got
only 34 votes less than the respondent and that the tribunal (by a majority)
had found that the bus procured by respondent No. I did carry to the polling
booths about 60 voters, leading to the legitimate presumption that the Majority
of them did vote for respondent No. 1. Under those circumstances; the Court did
not care to interfere with the Tribunal's factual view that if the votes
attributable to the corrupt practice were left out of account, the petitioner
would have gained an undisputed majority. In that very case while pointing out
that the High Court should not have:
(1) A. I. R. 1955 $. C. 756.
398 upset a finding of fact of the Tribunal,
this Court cautiously added that "it may be that the view taken by the.
dissenting member of the Tribunal was the
more proper." Apparently, the dissenting member was not inclined to upset
the poll verdict even on this evidence. Where there are a number of serious
candidates contesting from a constituency, the situation, becomes complex and
unpredictable. It is convenient assumption, not reasoned probability, to guess
for whom, if at all, the voters of the winner who used corrupt practices would
have alternatively cast their franchise. Sheer disenchantment with the vicious
techniques might well have turned away many sensitive souls from the polling
station. In the appeal before us the lead is over a thousand votes, no link
between the polluted practice and the voters affected is forged ten candidates
were in the field and some of them had polled well. The observations of this
Court in Jamuna Prasad's Case(1) that "there is nothing to show why the
majority of the first respondent's voters would have preferred the 6th
respondent and ignored the 3rd and 4th respondents" under scores the
hazard in such multiple-contest situations. Shri A. K. Sen's persuasive
invitation to compute on imperfect date is to ask us to crystalgaze. We decline
the essay in occult.
In the present case the reasoning of the
trial Court dealing with this branch is not brief but a blank. All that the
Court has said is that the difference is only 1044 votes between the appellant
and the respondent and that a reasonable judicial guess is not taboo:
"Therefore it can be reasonably concluded as per cl. (b) of s. 101 of the
R. P.
Act that but for the votes obtained by the
returned candidate (1st respondent) by corrupt practices, the petitioner would
have obtained a majority of the valid votes". We are sorry the sequitur is
too obscure for us to see. There were ten candidates in the field and the
,curious plea bearing on this relief in the election petition appears to be
that the petitioner has done social service and deserved victory and so there
was no need to send him back to the constituency to seek a reelection strange
compliance with s. 101 of the Act. Indeed, the petitioner, himself a barrister
and a former Deputy Minister, conversant with the requirements of election law
knows that where a claim for a declaration in his favour is put forward at
least formal averments tacking the corrupt practice onto obtaining the definite
votes was necessary.
On the other hand, all that he states is that
as a result of the hate campaign against the Muslims and the Tamils, alleged to
have been carried on by the appellant and his agents, "the Tamil speaking
people though that it would be to their advantage to support the D. M. K.
candidate and the Muslim population thought that they would be protected only
if the Muslim League candidate was returned to the Election." Therefore
%bat? After adding that these two candidates had secured a large number of
votes from the Tamils and the Muslims, the petition makes a puzzling statement:
"These votes would have been polled by the petitioner and the Congress
party but for the corrupt practices under section 123 committed by the 1st
respondent, his election agent and the agents of the 1st respondent.. "
-The abstruse logic, the bare assertion and the total absence of a tie-up (1)
A. 1. R. 1954 S. C. 686, 689 (jamuna Prasad v. Lachhi Ram) [1955] S.C.R. 608.
399 between specific corrupt practices and
the number of votes obtained thereby lead us to an outright rejection of the
relief, not merely for want of proper averments but also for a total void in proof.
Absent visible welding of the electoral vice established into the numerical
measure of the victory, the votes at the polls alone, not the writ of the
Court, can seat him in the legislature. We have no hesitation in reversing the
finding on issue No. 11.
The conclusion therefore is that the
appellants' election is set aside: and the constituency has to choose its
representative by a fresh poll. It must be noted that half the term has already
run out since the election which we now set aside. Having regard to the
democratic process and the duty not to keep Chamarajpet orphaned in the
legislature, we expect the Chief Election Commissioner. to proceed
expeditiously to hold a fresh election.
The fate of this case has been the direct
result, among other grounds, of the cost of campaigns, beyond the legal
ceiling; incurred by the appellant who contested as an Independent. To give all
candidates a fair chance, an operationally fairer, perhaps even radical plan to
finance our elections, particularly the campaigning process, may have to be
devised. Money power casts a sinister shadow on our elections and the political
payoff of undue expenditure in the various constituencies is too alluring for
parties to resist temptation. Moreover,, there is a built-in iniquity in the
scheme because an independent candidate who exceeds the ceiling prescribed
under the law legally commits a corrupt practice. His rival, set up by
political parties with considerable potential for fund raising and using, may
lay out a hundred times more in each constituency on their candidates and yet
hope to escape the penalty under s. 77.
The convenient-not necessarily correct-plea
would be that the candidate spent for his election but the party for its
campaign. This likely evasion of the law by using big money through political
parties is a source of pollution of the Indian political process. To channel
funds into the campaign for specific candidates getting around the requirements
of the law by establishing party committees is all too familiar in this and
some other countries. in this context it may be apt to draw attention to a
recent ruling of this Court in Kanwarlal Gupta V. Amar Nath Chawla (1) on
election expenses. it may be proper to infuse into the election law the
cleansing spirit which was emphasized way back in 1920 by the Select Committee
or), the Indian Election Offence and Enquiries Act (XXXIV of 1920). Half a
century ago it was observed there:
"We feel that there are distinct
advantages at the present time when election is to play so important a part in
the new public life of India that the public conscience should be markedly
drawn in relation to the franchise whether that franchise relates to
legislative or other bodies." Elections, constituency-wise, are the
cornerstone of our parliamentary culture and if the law is to reflect and
ensure the democratic-, (1) [19751 2'S. C R. 259.
400 norms set by the nation in this strategic
area, serious political consensus (not sanctimonious platitudes) on heavy
cut-back on poll outlay by Parties and candidates and basic morality in the
electioneering methodology must emerge-a consummation devoutly to be wished. if
campaigns run berserk and expenses unlimited become the rule general elections
become national nightmares and the fabric of our freedom shakes. Courts come in
only when specific cases are filed and cannot arrest this cultural
contamination. We can only express the wish, with a sense of social awareness,
that campaign finances reform, imposing, realistic limitations on spending on
behalf of candidates directly or vicariously seem necessary if inequality of
influence is not cooperate upon the elect oral process and later upon
government decisions. To a limited extent Courts can respond to the fulfillment
of this constitutional aspiration by a benignant interpretation of the legal
limits on election expenditure s. 77 clamps down. This election case is also a
caveat on election methodology. True, large monetary inputs are necessary evils
of modern elections, but "once we assuage our ,conscience by calling
something a 'necessary evil', it begins to look more and more necessary and
less and less evil" (1). The manumission of the electoral process from
money power is the dharma of our Republic.
In the hope that a fresh election for
Chamarajpet would be held ,early and in the expectation that the candidates,
independents and 'Party-nominees alike would keep within the pecuniary limits
set by the law as laid down by this Court, we allow the appeal in part, as
above indicated. Parties will bear their own costs throughout.
V.P.S. Appeal partly Allowed.
(1) Sydney Harris-quoted by Hidayatullah J.
(as he then was) in "Democracy in India and the Judicial Process "Lajpatrai
Memorial Lectures, 1965-Asia Publising House-P-60.
Back
