Charan Lal Sahu & Ors Vs. Giani
Zail Singh & ANR [1983] INSC 199 (13 December 1983)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) BHAGWATI, P.N.
SEN, AMARENDRA NATH (J) MADON, D.P.
THAKKAR, M.P. (J)
CITATION: 1984 AIR 309 1984 SCR (2) 6 1984
SCC (1) 390 1983 SCALE (2)961
CITATOR INFO :
RF 1986 SC1253 (20) R 1986 SC1534 (4) R 1987
SC1577 (10) F 1987 SC2371 (10)
ACT:
Constitution of India 1950, Articles 71(1)
and 84(a) Sec. 18(1) of Presidential and Vice-Presidential Elections Act
1952-Whether ultra vires Article 71(1) Presidential election-Candidate
contesting such election-Whether to take oath prescribed by Article 84(a).
Presidential and Vice-Presidential Elections
Act, 1952 Section 13(a) read with section 14A (1)-`Candidate' at presidential
election- Who is-One duly nominated'-who has locus standi to challenge
election.
Section 18(1) and 19-Elections Act,
petition-Whether could be filed on ground that elected candidate not a `suitable
person' for holding the office.
Section 18(2)-Undue influence and bribery at
an election-Canvassing for a candidate-Whether amounts to undue influence.
pleading & Practice: Election
Petitions-Pleadings- Precise specific and unambiguous-Necessity for.
Indian Penal Code-Section 171C-Undue
influence at elections Canvassing-Whether amounts to undue influence.
Words & Phrases-Meaning of.
"Connivance" whether means
"consent".
HEADNOTE:
For the election to the office of the
President of India, the Returning officer accepted the nomination papers of two
candidates only viz. Giani Zail Singh and Shri H.R.Khanna. The election was
held on July 12,1982, and Giani Zail Singh was declared as the successful
candidate.
The petitioners in Election Petition Nos. 2
and 3 of 1982 who had filed their nomination papers, contested the election on
various grounds and alleged that Respondent 1.
Giani Zail Singh exercised undue influence
over the voters through his confidants.
7 A preliminary objection to the maintainability
of these petitions was raised on behalf of Respondent no. 1 and the Attorney
General. It was contended that neither of the two petitioners was a `candidate'
within the meaning of section 13(a) of the Presidential and Vice-Presidential
Elections Act, 1952 and since under section 14A, an election petition can be
filed only by a person who was a candidate at the election, the petitioners had
no standing to file the petitions.
This Court framed the following preliminary
issue:
"Does the petitioner have no locus
standi to maintain the petition on the ground that he was not a `candidate'
within the meaning of section 13(a) read with section 14A of Presidential and
Vice-Presidential Elections Act 1952? Election Petition No. 4 of 1982 was filed
by 27 Members of Parliaments challenging the election of Respondent No. 1,
Giani Zail Singh as the President of India. contending that the petitioners
jointly sponsored the candidature of Shri Khanna, a former Judge and that Giani
Zail Singh was not a "Suitable person "for holding the high office of
the President of India and that Shri M.H. Beg former Chief Justice and Chairman
of the Minorities Commission, was engaged by Respondent I and by the Prime
Minister "for influencing the votes of the Minority Communities";(2)
that a Cabinet Minister of the Union Government, a `supporter and close
associate 'of Respondent 1, exercised undue influence over the voters by
misusing the Government machinery and that a statement was issued by him
through the Press Info- Bureau asking the voters to vote for Respondent 1, (3)
that the Prim, Min ter participated in the election campaign of Respondent 1
and misused to Government machinery for that purpose, (4) that the Prime
Minister made a communal appeal to the Akali Dal that its members should vote
for Respondent 1, and (5) that Government helicopters and cars were misused for
the purpose of the election of Respondent 1, and that these various acts were
committed by supporters of Respondent 1 with his connivance.
It was contended on behalf of Respondent I
that even assuming that the aforesaid allegation were true they did not
disclose any cause of action for setting aside the election of respondent 1.
This Court framed the following issues : (1)
"can the election of a candidate to the office of the President of India
be challenged on the ground that he is not a suitable person for holding that
office",(2) "whether the averments in the Election Petition, assuming
them to be true and correct; disclose any cause of action for setting aside the
election of the returned candidate (Respondent 1) on the grounds stated in
section 18 (1) (a) of the Act".
Dismissing the election Petitions, HELD:
Election Petitions Nos. 2&3 of 1982.
1. The petitioners have no locus standi to
file the election petitions since they were neither duly nominated nor can they
claim to have been duly ominated as candidates at the Presidential election.[16
H] 8
2. Three pre-conditions govern an election
petition by which a Presidential election is challanged. In the first place
such a petition has to be filed in the Supreme Court.
Secondly, the petition must disclose a
challange to the election on one or more grounds specified in sub-section (1)
of section 18 or section 19. Thirdly an election petition can be presented only
by a person who was a candidate at the presidential election or by twenty or
more electors. joined together as petitioners.[14 E-F]
3. The definition of the word `candidate' in
section 13 (a) of the Act consists of two parts.`Candidate' means a person who
has either been duly nominated as a candidate at a Presidential election or a
person who claims to have been duly nominated. Section 5B (1) (a) of the Act
provides that on or before the date appointed for making nominations, each
candidate shall deliver to the Returning Officer a nomination paper completed
in the prescribed form, subscribed by the candidate as assenting to the
nomination, and "in the case of Presidential election, also by at least
ten electors as proposers and at least ten electors as seconders".[14 G-H;
15 A] In the instant case, neither of the two petitioners was duly nominated.
The nomination papers filed by them were not subscribed by ten electors as
proposers and ten electors as seconders. It was precisely for this reason that
their nomination papers were rejected by the Returning Officer.
Since the nomination papers of the two
petitioners were not subscribed as required by section 5B (1) (a) of the Act,
it follows that they were not duly nominated as "candidates" at the
election. [15 A-B]
4. The occasion for a person to make a claim
that he was duly nominated can arise only if the nomination paper complies with
the statutory requirements which govern the filing of nomination papers and not
otherwise. The claim that he was `duly' nominated necessarily implies and involves
the claim that his nomination paper conformed to the requirements of the
statute. A contestant whose nomination paper is not subscribed by at least ten
electors as proposers and ten electors as seconders, as required by s. 58 (1)
(a) of the Act, cannot therefore claim to have been duly nominated, any more
than a contestant who had not subscribed his assent to his own nomination can.
The claim of a contestant that he was duly nominated must arise out of his
compliance with provision of the Act, and not out of the violation of the Act.
Otherwise, a person who had not filed any nomination paper at all but who had
only informed the Returning Officer orally that he desired to contest the
election could also contend that he "claims to have been duly nominated as
a candidate". [15 F-H; 16A] In the instant case, the nomination papers of
the petitioners were rightly rejected on the ground of non- compliance with the
mandatory requirement of s.58 (1)(a) of the Act. Their claim that they have
been duly nominated is not within the framework of the Act but is dehors the
Act.
It cannot therefore be entertained.[16 C]
Charan Lal Sahu v. Shri Fakruddin Ali Ahmed. (A.I.R.) 1975 S.C. 1288; Charan
Lal Sahuv. Neelam Sanjeeva Reddy, [1978] 3 SCR 1, referred to.
5. It is of the essence of the functioning of
a democracy that elections to public offices must be open to the scrutiny of an
independent Tribunal. [17 D] In the instant cases, it is regrettable that
election petitions challenging the election to the high office of the President
of India should be filed in a cavalier fashion.
The petitions have an extempore. appearance
and not even a second look, appears to have been given to the manner of
drafting these petitions or to the contents raised therein.
The court refrained from passing any order of
costs and, instead expressed disapproval of the light hearted and indifferent
manner in which these petitions were filed. [17 B-C] Election petitions No. 4
of 1982.
1. The rights arising out of elections,
including the right to contest or challenge an election, are not common law
rights. They are creatures of the statutes which.
create, confer or limit those rights.
Therefore, for deciding the question whether an election can be set aside on
any alleged ground, the courts have to consult the provisions of law governing
the particular election. They have to function within the framework of that law
and cannot travel beyond it. Only those persons on whom the right of franchise
is conferred by the statute can vote at the election. [19 F-G] In the instant
case, that right is conferred on every`elector' as defined in section 2(d) of
the Act. Only those person who are qualified to be elected to the particular
office can contest the election. That right is regulated by section 5A of the
Act. The election can be called into question in the manner prescribed by the
statute and not in any other manner. Section 14(1) of the Act provides that no
election shall be called in question except by presenting an election petition
to the authority specified in sub-section (2) which is the Supreme Court. The
grounds for setting aside the election to the office of the President or the
Vice-President and the ground on which a candidate other than the returned
candidate may be declared to have been elected are laid down in sections 18 and
19 of the Act. The election can neither be questioned nor set aside on any
other ground. Therefore, the challenge to the election of the returned
candidate on the ground of his want of suitability to occupy the office of the
President cannot be entertained and must be rejected.[20 D-E] K.Venkateswara
Rao v. Bekkam Narsimha Reddy [1969] I SCR 679 at 684 and Charan Lal sahu
v.Nandkishore Bhatt,[1974] 1 SCR 294 at 296 referred to.
2. Suitability of a candidate is for the
electorate to judge and not for the court to decide. The court cannot
substitute its own assessment of the suitability of a candidate for the verdict
returned by the electorate. The verdict of the electorate is a verdict on the
suitability' of the candidate. `Suitability' is a fluid concept of uncertain
import. The ballot-box is, or has to be assumed to be its sole judge. [20 G-2 1
A]
3. It is not open to a petitioner in an
Election Petition to plead in terms of synonyms. In Election Petitions pleadings
have to be precise, specific and unambiguous so as to put the respondent on
notice. The rule of pleadings that facts constituting the cause of action must
be specifically pleaded is as fundamental as it is elementary. [23 A] 10
4. Connivance may in certain situations
amount to`consent'. Dictionaries give `consent' as one of the meanings of the
word `connivance'. But it is not true to say that `connivance' invariably and
necessarily means or amounts to `consent', that is to say, irrespective of the
context of the given situation. The two cannot, therefore, be equated. Consent
implies that parties are ad idem.
Connivance does not necessarily imply that
parties are of one mind. They may or may not be, depending upon the facts of
the situation. [23 B-C]
5. Precision in pleadings particularly in
Election Petitions is necessary. The importance of a specific pleading in
election petitions can be appreciated only if it is realised that the absence
of a specific plea puts the respondent at a great disadvantage. He must know
what case he has to meet. He cannot be kept guessing whether the petitioner
means what he says. The petitioner cannot be allowed to keep his options open
until the trial and adduce such evidence as seems convenient and comes handy.
It is therefore impermissible to substitute the word consent for the word
`connivance' which occurs in the pleadings of the petitioners. [23 F, D-E]
6. In the absence or a pleading that the
offence of undue influence was committed with the "consent" of the
returned candidate, one of the main ingredients of section 18(1) (a) remains
unsatisfied. [23 C] 7 When the Act was passed in 1952, section 18(1)(a)
provided that the Supreme Court shall declare the election of the returned
candidate void if it is of opinion that the offence of bribery or undue
influence has been committed by the returned candidate or by any person
"with the connivance" of the returned candidate. This sub-section was
amended by section 7 of the Presidential and Vice- Presidential Election
(Amendment) Act, 5 of 1974. The word `connivance' was substituted by the word
`consent' by the Amendment Act. If `connivance' carried the same meaning as
consent and if one was the same as the other, the Parliament would not have
taken the deliberate step of deleting the word connivance a and substituting it
by the word consent'.
The Amendment shows that connivance and
consent connote distinct concepts for the purpose of section 18 (I) (a).[23
G-24 B]
8. The mere Act of canvassing for a candidate
cannot amount to undue influence within the meaning of Section 171C of the
Penal Code. [26 C] Baburao patel v. Dr. Zakir Hussain [1968] 2SCR 133;
Shiv Kirpal Singh v. Shri V.V Giri [1971] 2
SCR 197,320, 32]; and Ram Dialy santLal [1959] Suppl. 2 SCR 748 at 758, 759
referred to.
9. The laws of election are self-contained
codes and the rights arising out of elections are the off springs of those
laws. The provisions of the Representation of the People Act 1951 cannot be
engrafted upon the Presidential and Vice-Presidential Elections Act 1952, to
enlarge the scope of an election petition filed to challenge a Presidential or
Vice-Presidential election. Such an election can be set aside only on the
grounds specified in section 18 (1) of the Act. [28 B-C]
10. The use of Government machinery, abuse of
official position and appeal to communal sentiments so long as such appeal does
not amount to 11 undue influence, are not considered by the Legislature to be
circumstances which would invalidate a Presidential or a Vice-Presidential
election. [27 M; 28 A]
11. The Act cannot be held to be
unconstitutional on the ground that it limits the challenge to the Presidential
and Vice-Presidential Election to the grounds set forth in section 18 (1).
While enacting a law in pursuance of the power conferred by Article 71 (3),
Parliament. is entitle to specify the particular kind of doubts or disputes which
shall be inquired into and decided by the Supreme Court. If every kind of
fanciful doubt or frivolous doubt will have to be inquire into by this Court,
election petitions will became a fertile ground for fighting political battles.
[28 F; 28 G-H]
12. A candidate who wants to contest the
election for the office of the President cannot take the oath in any of the
forms prescribed by the Third Schedule to the Constitution. That Schedule does
not prescribe any form of oath for a person who desires to contest a
Presidential election. [29 E] In the instant case, the averments in the
Election petition, assuming them to be true and correct, do not disclose any
cause of action for setting aside the election of the returned candidate on the
ground stated in section 18 (1)(a) of the Act. [28 D]
CIVIL APPELLATE JURISDICTION : Election
Petition No. 2 of 1982 (Petition under Article 71 of the Constitution.) AND
Election Petition No. 3 of 1982.
(Petition under Article 71 of the
Constitution.) WITH Election Petition No. 4 of 1982.
(Petition under Article 71 of the
Constitution.) Petitioner in person in Election Petition No. 2/82.
Hari Shanker Jain and K.K. Gupta for the
Petitioner in Election Petition No.3/82.
Shujaatullah Khan and K.K. Gupta for the
Petitioner in Election Petition No.4/82.
O.P Sharma, R.C. Gubrele, K.R Gupta and R.C.
Bhatia for the Respondents in Election Petition No.2/82.
P.R. Mridul, A.K. Sen. O.P. Sharma, R.C.
Gubrele, K.R Gupta and R.C. Bhatia for the respondent in Election Petition
No.3/82.
A.K. Sen, J.S. Basu, o.P. Sharma, R.C.
Gubrele, K.R Gupta and R.C. Election Petition No. 4/82.
12 K Parasaran, Att. General and R.D.Agarwala
in all the Election Petitions.
P.N Duda, H.L Tikkum, D.S. Narula, Vijay
Pandit and B.C. Agarwala for the interveners.
A.S. Pundir for the Interveners.
D.B. Vohra for the Interveners.
The Judgment of the Court was delivered
CHANDRACHUD, C.J.: These three Election petitions are filed under section 14 of
the Presidential and Vice- Presidential Elections Act, 1952 to challenge the
election of Respondent 1, Giani Zail Singh, as the President of India. The
election to the office of the President of India was held on July 12, 1982. In
all, 36 candidates had filed nomination papers including Shri Charan Lal Sahu
who is the petitioner in election Petition No. 2 of 1982 and Shri Nem Chandra
Jain who is the petitioner in election Petition No.3 of 1982. The Returning
Officer accepted the nomination papers of two candidates only: Gaini Zail Singh
and Shri H.R. Khanna, a retired Judge of this Court. The result of the election
was published in the Extraordinary Gazette of India on July 15. 1982 declaring
Giani Zail Singh as the successful candidate. He took oath of office on July
25, 1982.
We will first take up for consideration Election
Petitions 2 and 3 of 1982 which are filed respectively by Shri Charan Lal Sahu
and Shri Nem Chandra Jain both of whom, incidentally, are Advocates.
Election Petitions Nos. 2 & 3 of 1982:
In Petition No.2 of 1982, the petitioner asks
for the following reliefs:
"(1) That the Constitutional Eleventh
Amendment Act 1961 be declared ultra-vires of the Constitution.
(2) That the sections 5 (B) 6 and 5 (c) 21
(3) of the Presidential and Vice Presidential Election Act 1952 (Amended) with
Election Rules 1974 be declared, illegal, void and unconstitutional, under
Article 58 of the Constitution.
13 (3) That is the post of Prime Minister and
other Ministers be declared that they are in office of profit hence they have
played undue influence in the election of the returned Candidate.
(4) That the election of the (Returned
Candidate) Respondent No. 1 is declared void and nomination of respondent No. 2
be declared illegally accepted thus the petitioner be declared as elected as
President under the Constitution, as stated in the petition u/s 18 of the Act.
(5) That the above system of election of
President is bad and unconstitutional therefore, it should be held directly in
future by all the electorals and Union of India be directed to amend Articles
54, 55 and 56 of the Constitution of India.
(6) That sections 4(1) (2), 5, 6, 7, & 11
of the Salaries and Allowances, of Ministers Act 1952 (Act No. 58 of 1952)
along with sections 3, 4, 5, 6, 7, 8, and 9 of the Salaries and Allowances of
Members of Parliament Act, 1954 be declared void and unconstitutional."
(Advisedly, we have not touched up the prayer-clauses.) In Petition No. 3 of
1982, the petitioner prays that the election of Respondent 1 be set aside on
the various grounds mentioned in the petition.
Apart from making several vague, loose and
offhand allegations, the petitioners allege that Respondent 1 exercised undue
influence over the voters through his confidants. We do not consider it
necessary to reproduce those allegations since we are of the opinion that these
petitions are not maintainable.
A preliminary objection is taken to the
maintainability of these petitions by Shri Asoke Sen who appears on behalf of
Respondent 1 and by the learned Attorney General. They contend that neither of
the two petitioners was a 'candidate' within the meaning of section 13(1) of
the Act and since, under section 14A, an election petition can be filed only by
a person who was a candidate at the election, the petitioners have no standing
to file the petitions and therefore, the petitions must be dismissed as not
maintainable.
14 Since the petitioners contested their
alleged lack of locus to file the petitions, the following issue was framed by
us a preliminary issue in each of the two election petitions:
"Does the petitioner have no locus
standi to maintain the petition on the ground that he was not a 'candidate'
within the meaning of section 13(a) read with section 14A of the Presidential
and Vice- Presidential Elections Act, 1952 ?" Section 14 of the Act
provides by sub-section (1) that no election shall be called in question except
by presenting an election petition to the authority specified in sub- section
(2). According to sub-section (2), the authority having jurisdiction to try an
election petition is the Supreme Court. By section 14A(1) of the Act, an
election petition may be presented on the grounds specified in section 18(1)
and 19 "by any candidate at such election" or, "in the case of
Presidential election, by twenty or more electors joined together as
petitioners". Section 13(a) of the Act provides that unless the context
otherwise requires, 'candidate' means a person "who has been or claims to
have been duly nominated as a candidate at an election".
These provisions show that there are three
pre- conditions which govern an election petition by which a Presidential
election is challenged. In the first place, such a petition has to be filed in
the Supreme Court.
Secondly, the petition must disclose a
challenge to the election on one or more of the grounds specified in sub-
section (1) of section 18 or section 19. Thirdly, and that is important for our
purpose, an election petition can be presented only by a person who was a
candidate at the Presidential election or by twenty or more electors joined
together as petitioners. Since the two election petition which are at present
under our consideration have not been filed by twenty or more electors, the
question which arises for our consideration is whether the two petitioners in
the respective election petitions were 'candidate' at the election held to the
office of the President of India.
The definition of the word 'candidate' in
section 13(a) of the Act consists of two parts. 'Candidate' means a person who
has either been duly nominated as a candidate at a presidential election or a
person who claims to have been duly nominated. Neither of the two petitioners
was duly nominated. This is incontrovertible. Section 5B (1) (a) of the Act
provides that on or before the date appointed for making nominations, each
candidate shall deliver to the Returning Officer a nomination paper completed
in the prescribed form, sub- 15 scribed by the candidate as assenting to the
nomination, and "in the case of Presidential election, also by at least
ten electors as proposers and at least ten electors as seconders". It is
common ground that the nomination papers filed by the two petitioners were not
subscribed by ten electors as proposers and ten electors as seconders. In fact,
it is precisely for that reason that the nomination papers filed by the two
petitioners were rejected by the Returning Officer. Since the nomination papers
of the two petitioners were not subscribed as required by section 5B (1) (a) of
the Act, it must follow that they were not duly nominated as candidate at the
election.
The petitioners, however, contend that even
if it is held that they were not duly nominated as candidates their petitions
cannot be dismissed on that ground since they 'claim to have been duly
nominated'. It is true that in the matter of claim to candidacy, a person who
claims to have been duly nominated is on par with a person who, in fact, was
duly nominated. But the claim to have been duly nominated cannot be made by a
person whose nomination paper does not comply with the mandatory requirements
of section 58 (1) (a) of the Act. That is to say a person, whose nomination
paper, admittedly, was not subscribed by the requisite number of electors as
proposers and seconders cannot claim that he was duly nominated. Such a claim
can only be made by a person who can show that his nomination paper conformed
to the provisions of section 58 and yet it was rejected, that is, wrongly
rejected by the Returning Officer. To illustrate, if the Returning Officer
rejects a nomination paper on the ground that one of the ten subscribers who
had proposed the nomination is not an elector, the petitioner can claim to have
been duly nominated if he proves that the said proposer was in fact an
'elector'.
Thus, the occasion for a person to make a
claim that he was duly nominated can arise only if his nomination paper
complies with the statutory requirements which govern the filling of nomination
papers and not otherwise. The claim that he was 'duly' nominated necessarily
implies and involves the claim that his nomination paper conformed to the
requirements of the statute. Therefore, a contestant whose nomination paper is
not subscribed by at least ten electors as proposers and ten electors as
seconders, as required by section 58(1) (a) of the Act, cannot claim to have
been duly nominated, any more than a contestant who had not subscribed his
assent to his own nomination can. The claim of a contestant that he was duly
nominated must arise out of his compliance with the provisions of the Act. It
cannot arise out of the violation of the Act. Otherwise, a person who had not
filed 16 any nomination paper at all but who had only informed the Returning
Officer orally that he desired to contest the election could also contend that
he "claims to have been duly nominated as a candidate".
It is not the case of the petitioners that
the Returning Officer had wrongly rejected their nomination papers even though
they were subscribed by ten or more electors as proposers and ten or more
electors as seconders.
Not only were the nomination papers rightly
rejected on the ground of non-compliance with the mandatory requirement of
section 58(1) (a) of the Act, but the very case of the petitioners is that
their nomination papers could not have been rejected by the Returning Officer
on the ground of non- compliance with the aforesaid provision. Thus, their
claim that they have been duly nominated is not within the framework of the Act
but is de hors the Act. It cannot be entertained.
In Charan Lal Sahu v. Shri Fakruddin Ali
Ahmed, the petitioner claimed to have been duly nominated as a candidate though
his nomination paper was rightly rejected on the ground of non-compliance with
the provisions of sections 5B and 5C of the Act. It was held by this Court that
merely because a candidate is qualified under Article 58 of the Constitution,
it does not follow that he is exempt from compliance with the requirements of
law which the Parliament has enacted under Article 71(3) for regulating the
mode and the manner in which nominations should be filed. Since the petitioner
did not comply with the provisions of the aforesaid two sections, it was held
that he could not claim to have been duly nominated and was therefore not a
"candidate". In the result, the election petition was dismissed by
the Court on the ground that the petitioner did not have the locus standi to
maintain it.
The challenge of the petitioners to the
provision contained in section 5B (1) (a) of the Act on the ground of its
alleged unreasonableness has no substance in it. The validity of that provision
was upheld by this Court in Charan Lal Sahu v. Neelam Sanjeeva Reddy. Besides,
if the petitioners have no locus to file the election petitions, they cannot be
heard on any of their contentions in these petitions.
Accordingly, our finding on the preliminary issue
is against the petitioners. We hold that they have no locus standi to file the
election 17 petitions since they were neither duly nominated nor can they claim
to have been duly nominated as candidates at the presidential election. In view
of this finding, Election Petition Nos. 2 and 3 of 1982 are dismissed.
It is regrettable that election petitions
challenging the election to the high Office of the President of India should be
filed in a fashion as cavalier as the one which characterises these two petitions.
The petitions have an extempore appearance and not even a second look, leave
alone a second thought appears to have been given to the manner of drafting
these petitions or to the contentions raised therein. In order to discourage
the filing of such petitions, we would have been justified in passing a heavy
order of costs against the two petitioners. But that is likely to create a
needless misconception that this Court, which has been constituted by the Act
as the exclusive forum for deciding election petitions whereby a Presidential
or Vice-Presidential election is challenged, is loathe to entertain such
petitions. It is of the essence of the functioning of a democracy that election
to public offices must be open to the scrutiny of an independent tribunal. A
heavy order of costs in these two petitions, howsoever justified on their own
facts, should not result in nipping in the bud a well-founded claim on a future
occasion.
Therefore, we refrain from passing any order
of costs and, instead, express our disapproval of the light-hearted and
indifferent manner in which these two petitions are drafted and filed.
Election Petition No. 4 of 1982 This Election
Petition is filed by 27 Members of the Parliament to challenge the election of
Giani Zail Singh as the President of India. The petitioners belong to four
Opposition Parties: The Lok Dal, The Democratic Socialist Party of India, the
Bharatiya Janata Party and the Janata Party. These parties had jointly
sponsored the candidature of Shri H.R. Khanna, a former Judge of this Court.
Giani Zail Singh was returned as the successful candidate by a large margin of
votes.
The petitioners, being Members of the
Parliament, were electors at the Presidential election. Their standing to file
this petition is unquestioned.
One of the principal challenges of the
petitioners to the election of Giani Zail Singh is that he is not a
"suitable person" for holding the high office of the President of
India. The petitioners have given their own reasons in support of this contention
in paragraphs 5 to 8 18 of the petition. No useful purpose will be served by
repeating those reasons in this judgment since, we are of the opinion that the
election to the office of the President of India cannot be questioned on the
ground that the returned candidate is not a suitable person for holding that
office.
The following issue arises on the above
contention raised by the petitioners:
"Can the election of a candidate to the
office of the President of India be challenged on the ground that he is not a
suitable person for holding that office ?" Section 18 of the Presidential
and Vice-Presidential Elections Act, 1952, which specifies the "grounds
for declaring the election of a returned candidate to be void", reads
thus:
"18. (1) If the Supreme Court is of
opinion,- (a) that the offence of bribery or undue influence at the election
has been committed by the returned candidate or by any person with the consent
of the returned candidate; or (b) that the result of the election has been
materially affected- (i) by the improper reception or refusal of a vote, or
(ii) by any non-compliance with the provisions of the Constitution or of this
Act or of any rules or orders made under this Act; or (iii) by reason of the
fact that the nomination of any candidate (other than the successful
candidate), who has not withdrawn his candidature, has been wrongly accepted; or
(c) that the nomination of any candidate has been wrongly rejected or the
nomination of the successful candidate has been wrongly accepted;
the Supreme Court shall declare the election
of the returned candidate to be void.
(2) For the purposes of this section, the
offences of 19 bribery and undue influence at an election have the same meaning
as in Chapter IXA of the Indian Penal Code," Section 19 of the Act which
specifies the "grounds for which a candidate other than the returned
candidate may be declared to have been elected" reads thus:
"If any person who has lodged an
election 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 Supreme Court is of opinion that in
fact the petitioner or such other candidate received a majority of the valid
votes, the Supreme 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:
Provided that the petitioner or such other
candidate shall not be declared to be duly elected if it is proved that the
election of such candidate would have been void if he had been the returned
candidate and a petition had been presented calling in question his
election".
These being the only provisions of the Act
under which the election of a returned candidate can be declared void, the
question as to whether the returned candidate is suitable for holding the
office of the President is irrelevant for the purposes of this election
petition. While dealing with an election petition filed under section 14 of the
Act, this Court cannot inquire into the question whether the returned candidate
is suitable for the office to which he is elected. The rights arising out of
elections, including the right to contest or challenge an election, are not
common law rights. They are creatures of the statutes which create, confer or
limit those rights. Therefore, for deciding the question whether an election
can be set aside on any alleged ground, the courts have to consult the
provisions of law governing the particular election. They have to function
within the framework of that law and cannot travel beyond it. Only those
persons on whom the right of franchise is conferred by the statute can vote at
the election. In the instant case, that right is conferred on every 'elector'
as defined in section 2(d) of the Act, which provides:
"'elector'. in relation to a
presidential election, means a member of the electoral college referred to in
article 54, and 20 in relation to a Vice-Presidential election, means a member
of the electoral college referred to in article 66".
Only those persons who are qualified to be
elected to the particular office can contest the election. In the instant case,
that right is regulated by section 5A of the Act which provides:
"Any person may be nominated as a
candidate for election to the office of President or Vice-President if he is
qualified to be by elected to that office under the Constitution".
The election can be called into question in
the manner prescribed by the statute and not in any other manner. In the
instant case, section 14(1) of the Act provides that no election shall be
called in question except by presenting an election petition to the authority
specified in sub-section (2). By sub-section (2) of section 14, the Supreme
Court is constituted the sole authority for trying an election petition.
Finally, an election can be called into question and set aside on those grounds
only which are prescribed by the statute. In the instant case, the grounds for
setting aside the election to the office of the President or the Vice President
and the grounds on which a candidate other than the returned candidate may be
declared to have been elected are laid down in sections 18 and 19 of the Act.
The election can neither be questioned nor set aside on any other ground.
Therefore, the challenge to the election of the returned candidate on the
ground of his want of suitability to occupy the office of the President cannot
be entertained and must be rejected out of hand. (See K. Venkateswara Rao v.
Bekkam Narsimha Reddy & Charan Lal Sahu v. Nandkishore Bhatt. Apart from
the legal position that the rights flowing out of an election are statutory and
not common law rights, it is impossible to conceive that any court of law can
arrogate to itself the power to declare an election void on the ground that the
returned candidate is not a suitable person to hold the office to which he is
elected.
Suitability of a candidate is for the
electorate to judge and not for the court to decide. The Court cannot
substitute its own assessment of the suitability of a candidate for the verdict
returned by the electorate. The verdict of the electorate is a verdict on the
suitability of the 21 candidate. 'Suitability' is a fluid concept of uncertain
import. The ballot-box is, or has to be assumed to be, its sole judge. Were the
Court to exercise the power to set aside an election on the ground that, in its
opinion, the returned candidate is not a suitable person for the office to
which he is elected, the statute will stand radically amended so as to give to
the Court a virtual right of veto on the question of suitability of the rival
candidates. And then, an unsuccessful candidate will challenge the election of
the successful candidate on the ground that he is more suitable than the
latter. That is an impossible task for the Courts to undertake and indeed, far
beyond the limits of judicial review by the most liberal standard.
Accordingly, the challenge to the election of
the returned candidate on the ground that he is not suitable for holding the
office of the President of India fails and is rejected. Our finding on the
issue is in the negative.
The other grounds on which the petitioners
have challenged the election of Respondent 1 are these; (1) That Shri M.H. Beg,
former Chief Justice of the Supreme Court and now Chairman of the Minorities
Commission, was engaged by Respondent 1 and by the Prime Minister Smt. Indira
Gandhi "for influencing the votes of the Minority communities"; (2)
that Rao Birendra Singh, a cabinet Minister of the Government of India, who is
a "supporter and a close associate" of Respondent 1, exercised undue influence
over the voters by misusing the Government machinery in that, a statement
issued by him asking the voters to vote for Respondent 1 was published by the
Press Information Bureau, Government of India;(3) that the Prime Minister
participated in the election campaign of Respondent I and misused the
Government machinery for that purpose; (4) that the Prime Minister made a
communal appeal to the Akali Dal that its members should vote for Respondent 1;
and (5) that Government helicopters and cars belonging to the Government were
misused for the purpose of election of Respondent 1. It is alleged by the
petitioners that these various acts were committed by the well-wishers and
supporters of Respondent 1 with his connivance.
It was contended by Shri Asoke Sen that, even
assuming that these allegations are true, they do not disclose any cause of
action for setting aside the election of Respondent
1. In view of these rival contentions, we
framed the following issue for consideration:
"Whether the averments in the Election
Petition, assuming them to be true and correct, disclose any cause of action
for setting aside the election of the returned candidate (Respondent 1) on the
ground stated in section 18(1) (a) of the Presidential and Vice- Presidential
Elections Act, 1952?" Section 18(1) (a) of the Act which we have already
set out, provides that the Supreme Court shall declare the election of the
returned candidate to be void if it is of opinion- "that the offence of
bribery and undue influence at the election has been committed by the returned
candidate or by any person with the consent of the returned candidate."
(emphasis supplied).
We may keep aside the question of bribery
since there is no allegation in that behalf. Nor is it alleged that the offence
of undue influence was committed by the returned candidate himself. The
allegation of the petitioners is that the offence of undue influence was
committed by certain supporters and close associates of Respondent 1 with his
connivance. It is patent that this allegation, even if it is true, is not
enough to fulfill the requirements of section 18(1) (a). What that section, to
the extent relevant, requires is that the offence of undue influence must be
committed by some other person with the "consent" of the returned
candidate. There in no plea whatsoever in the petition that undue influence was
exercised by those other persons with the consent of Respondent 1.
It is contended by Shri Shujatullah Khan who
appears on behalf of the petitioners, that connivance and consent are one and
the same thing and that, there is no legal distinction between the two
concepts. In support of this contention, learned counsel relies upon the
meaning of the word 'connivance' as given in Webster's Dictionary (Third
Edition, Volume 1, p. 481); Random House Dictionary (p. 311); Black's Law
Dictionary (p. 274); Words and Phrases (Permanent Edition, Volume 8A, p. 173);
and Corpus Juris Secundum (Volume 15A, p. 567). The reliance on these
dictionaries and texts cannot carry the point at issue any further. The
relevant question for consideration for the decision of the issue is whether
there is any pleading in the petition to the effect that the offence of undue
influence was committed with the consent of the returned candidate. Admittedly,
there is no pleading of consent. It is then no answer to say that the
petitioners have pleaded connivance and, according to dictionaries, connivance
means consent. The plea of 23 consent is one thing: the fact that connivance
means consent (assuming that it does) is quite another. It is not open to a
petitioner in an Election Petition to plead in terms of synonyms. In these
petitions, pleadings have to be precise, specific and unambiguous so as to put
the respondent on notice. The rule of pleadings that facts constituting the
cause of action must be specifically pleaded is as fundamental as it is
elementary. 'Connivance' may in certain situations amount to consent, which
explains why the dictionaries give 'consent' as one of the meanings of the word
'connivance'. But it is not true to say that 'connivance' invariably and
necessarily means or amounts to consent, that is to say, irrespective of the
context of the given situation. The two cannot, therefore, be equated.
Consent implies that parties are ad idem.
Connivance does not necessarily imply that parties are of one mind. They may or
may not be, depending upon the facts of the situation.
That is why, in the absence of a pleading
that the offence of undue influence was committed with the consent of the returned
candidate, one of the main ingredients of section 18(1) (a) remains
unsatisfied.
The importance of a specific pleading in
these matters can be appreciated only if it is realised that the absence of a
specific plea puts the respondent at a great disadvantage. He must know what
case he has to meet. He cannot be kept guessing whether the petitioner means
what he says, 'connivance' here, or whether the petitioner has used expression
as meaning 'consent'. It is remarkable that, in their petition, the petitioners
have furnished no particulars of the alleged consent, if what is meant by the
use of the word connivance is consent. They cannot be allowed to keep their
options open until the trial and adduce such evidence of consent as seems
convenient and comes handy. That is the importance of precision in pleadings,
particularly in election petitions. Accordingly, it is impermissible to
substitute the word 'consent' for the word 'connivance' which occurs in the
pleadings of the petitioners.
The legislative history of the statute lends
support to our view that for the purposes of section 18(1) (a), connivance is
not the same thing as consent. Originally, when the Act was passed in 1952,
section 18(1)(a) provided that the Supreme Court shall declare the election of
the returned candidate void if it is of opinion that the offence of bribery or
undue influence has been committed by the returned candidate or by any person
'with the connivance' of the returned candidate. This sub-section was amended
by section 7 of the Presidential and Vice-Presidential Elections (Amendment)
Act, 5 of 1974, which came 24 into force on March 23, 1974. The word
'connivance' was substituted by the word 'consent' by the Amendment Act. If
connivance carried the same meaning as consent and if one was the same as the
other. Parliament would not have taken the deliberate step of deleting the word
'connivance' and substituting it by the word 'consent'. The amendment made by
the Amendment Act of 1947 shows that connivance and consent connote distinct
concepts for the purpose of section 18(1) (a) of the Act, Since, admittedly,
there is no pleading in the Election Petition that the offence of undue
influence was committed with the consent of the returned candidate, the
petition must be held to disclose no cause of action for setting aside the
election of the returned candidate under section 18(1) (a) of the Act.
Apart from this, Shri Asoke Sen is right that
granting everything in favour of the petitioners and assuming that all that
they have alleged is true and correct, no case is made out for setting aside
the election of the returned candidate under section 18(1) (a) of the Act. We
will first take up the allegation of the petitioners that Shri M.H. Beg,
Chairman of the Minorities Commission, canvassed support for Respondent 1. The
question which we have to consider is whether, in doing so, Shri Beg is guilty
of the offence of undue influence. Section 18(2) of the Act provides that for
purposes of section 18, the offences of bribery and undue influence at an
election have the same meaning as in Chapter IXA of the Penal Code. That
Chapter which was introduced into the Penal Code by Act 39 of 1920, deals with
"Offences relating to Elections". Sections 171B and 171C of the Penal
Code define the offences of bribery and undue influence respectively, Section
171C reads thus:
"Undue influence at elections:
171C. (1) who ever voluntarily interferes or
attempts to interfere with the free exercise of any electoral right commits the
offence of undue influence at an election.
(2) Without prejudice to the generality of
the provisions of sub-section (1), whoever- (a) threatens any candidate or
voter, or any person in whom a candidate or voter is interested, with injury of
any kind, or 25 (b) induces or attempts to induce a candidate or voter to
believe that he or any person in whom he is interested will become or will be
rendered an object of Divine displeasure or of spiritual censure, shall be
deemed to interfere with the free exercise of the electoral right of such
candidate or voter, within the meaning of sub-section (1).
(3) A declaration of public policy or a
promise of public action or the mere exercise of a legal right without intent
to interfere with an electoral right, shall not be deemed to be interference
within the meaning of this section." The gravamen of this section is that
there must be interference or attempted interference with the 'free exercise'
of any electoral right. 'Electoral right' is defined by section 171A(b) to mean
the right of a person to stand, or not to stand as, or to withdraw from being,
a candidate or to vote refrain from voting at an election. In so far as is
relevant for our purpose, the election petition must show that Shri Beg
interfered with the free exercise of the voters' right to vote at the
Presidential election. The petition does not allege or show that Shri Beg
interfered in any manner with the free exercise of the right of the voters to
vote according to their choice or conscience. The petition alleges that Shri
Beg commented severely upon the suitability of the rival candidate Shri H.R.
Khanna by pointing out the so-called infirmities in his judgment in the
Fundamental Rights case. On the supposition that Judges constitute brotherhood
and are bound by ties of institutional loyalty, one may not approve of the tone
and temper of the personal attack made by Shri Beg on Shri H.R. Khanna. But
that is beside the point. We are neither concerned with the propriety of the
statement made by Shri Beg nor with the question as to who, out of the two
candidates, is more suitable to be the President of India.
The point of the matter is that by conveying
to the voters that Respondent 1 was a much safer candidate than Shri Khanna and
that Shri Khanna would not be a suitable candidate to hold the office of the
President of India by reason of a judgment of his, Shri Beg could not be said
to have interfered with the free exercise of the right of the voters to vote at
the election. If the mere act of canvassing in favour of one candidate as against
another were to amount to undue influence, the very process of a democratic
election shall have been stifled because, the right to canvass support for a
candidate is as much important as the 26 right to vote for a candidate of one's
choice. Therefore, in order that the offence of undue influence can be said to
have been made out within the meaning of section 171C of the Penal Code,
something more than the mere act of canvassing for a candidate must be shown to
have been done by the offender. That something more may, for example, be in the
nature of a threat of an injury to a candidate or a voter as stated in
sub-section 2(a) of section 171C af the Penal Code or, it may consist of
inducing a belief of divine displeasure in the mind of a candidate or a voter
as stated in sub-section 2(b). The act alleged as constituting undue influence
must be in the nature of a pressure or tyranny on the mind of the candidate or
the voter. It is not possible to enumerate exhaustively the diverse categorise
of acts which fall within the definition of undue influence. It is enough for
our purpose to say, that of one thing there can be no doubt: The mere act of
canvassing for a candidate cannot amount to undue influence within the meaning
of section 171C of the Penal Code.
In Baburao Patel v. Dr. Zakir Husain, this
Court while emphasising the distinction between mere canvassing and the
exercise of undue influence, observed:
"It is difficult to lay down in general
terms where mere canvassing ends and interference or attempt at interference
with the free exercise of any electoral right begins. That is a matter to be
determined in each case; but there can be no doubt that, if what is done is
merely canvassing, it would not be undue influence.
As sub-section (3) of section 171C shows, the
mere exercise of a legal right without intent to interfere with an electoral
right would not be undue influence".
In Shiv Kirpal Singh v. Shri V.V. Giri, the
Court observed that "if any acts are done which merely influence the voter
in making his choice between one candidate or another, they will not amount to
interference with the free exercise of the electoral right", that the
expression 'free exercise' of the electoral right must be read in the context
of an election in a democratic society and, therefore, candidates and their
supporters must be allowed to canvass support by all legal and legitimate
means. Accordingly, the offence of undue influence can be said to have been
committed only if the voter is put under a 27 threat or fear of some adverse
consequence, or if he is induced to believe that he will become an object of
divine displeasure or spiritual censure if he casts or does not cast a vote in
accordance with his decision: "But, in cases where the only act done is
for the purpose of convincing the voter that a particular candidate is not the
proper candidate to whom the vote should be given, that act cannot be held to
be one which interferes with the free exercise of the electoral right",
Ram Dial v. Sant Lal was a case of undue influence under proviso(a) (ii) to
section 123(2) of the Representation of the People Act, 1951 The appellant
therein had circulated a poster under the authority of the supreme religious
leader of the Namdhari Sikhs in a constituency where a large number of voters
were Namdhari Sikhs. This Court observed that there cannot be the least doubt
that even a religious leader has the right freely to express his opinion on the
comparative merits of the contesting candidates and to canvass for such of them
as he considers worthy of the confidence of the electors. Such a course of
conduct on his part will only be a use of his great influence amongst a
particular section of the voters in the constituency and that, it will amount
to an abuse of his great influence only if the words which he utters leave no
choice to the persons addressed by him in the exercise of their electoral
rights. On the facts of the case it was held that the religious leader, by his
exhortations and warnings to the Namdhari eletors, that disobedience of his
mandate will carry divine displeasure and spiritual censure left no choice to
them to exercise their right of voting freely.
Thus, the allegation of the pestitioners that
Shri Beg asked the voters to cast their votes in favour of Respondent 1 and not
to cast them for Shri H.R. Khanna on the ground that the latter was not a safe
or suitable candidate as compared with Respondent 1, does not make out the
offence of undue influence as defined in Section 171C of the Penal Code. It
must follow that the Election Petition does not disclose any cause of action
for setting aside the election of Respondent 1 on the ground of undue influence
as specified in section 18(1) (a) of the Act.
The remaining grounds alleged by the
petitioners for invalidating the election of Respondent 1 are misconceived.
The use of Government machinery, abuse of
official position and appeal to communal sentiments so long as such appeal does
not amount to 28 undue influences, are not considered by the Legislature to be
circumstances which would invalidate a Presidential or a Vice-Presidential
election. Assuming, therefore, that any such acts were done, they cannot be
relied upon for declaring the election of Respondent 1 void. As we have said
already, the laws of election are self-contained codes and the rights arising
out of elections are the off-springs of those laws. We cannot engraft the
provisions of the Representation of the People Act, 1951 upon the statute under
consideration and thereby enlarge the scope of an election petition filed to
challenge a Presidential or Vice- Presidential election. Such an election can
be set aside on the grounds specified in section 18(1) of the Act only.
Since the other allegations made by the
petitioners do not fall within the scope of that provision, they have to be
rejected.
For these reasons, our finding on the issue
under consideration is that the averments in the Election Petition, assuming
them to be true and correct, do not disclose any cause of action for setting
aside the election of the returned candidate on the grounds stated in section
18(1)(a) of the Act.
It was contended on behalf of the petitioners
that the Act would be unconstitutional if it is interpreted as limiting the
challenge to the Presidential or Vice- Presidential election to the grounds set
forth in section 18(1). In support of this argument reliance is placed by
learned counsel for the petitioners on the provisions contained in Article
71(1) of the Constitution which says:
"All doubts and disputes arising out of
or in connection with the election of a President or Vice-President shall be
inquired into and decided by the Supreme Court whose decision shall be
final". It is urged that the Constitution has conferred upon the Supreme
Court the power to inquire into and decide upon every kind of doubt or dispute
arising out of or in connection with a Presidential election and since, section
18(1) restricts that power to the grounds stated therein. it is ultra vires
Article 71(1). This argument overlooks that clause (3) of Art. 71 confers power
upon the Parliament, subject to the provisions of the Constitution, to make a
law for regulating matters relating to or connected with the election of the
President or the Vice-President. While enacting a law in pursuance of the power
conferred by Article 71(3), the Parliament is entitled to specify the
particular kind of doubts or disputes which shall be inquired into and decided
by the Supreme Court. If the petitioners were right in their contention, every
kind of fanciful doubt or frivolous dispute under the sun will have to be
inquired into by this Court and election petitions 29 will become a fertile
ground for fighting political battles.
That leaves for consideration one other
contention.
Article 58(1) of the Constitution provides
that no person shall be eligible for election as President unless he (a) is a
citizen of India, (b) has completed the age of thirty-five years, and (c) is
qualified for election as a member of the House of the People. Article 84(a)
provides that a person shall not be qualified to be chosen to fill a seat in
Parliament unless, inter alia he makes and subscribes an oath or affirmation
set out for the purpose in the Third Schedule. The argument of the petitioners
is that a candidate contesting a Presidential election must take the oath as
prescribed by Article 84(a) and since Respondent 1 had not taken such oath, his
election is unconstitutional.
This argument is untenable. Article 58 which
prescribes "Qualifications for elections as President", provides
three conditions of eligibility for contesting the Presidential election. One
of these conditions is that the candidate must be qualified for election as a
member of the House of the People. Article 84 speaks of "qualifications
for membership of Parliament". No person can fill a seat in the Parliament
unless, inter alia, he subscribes to the oath or affirmation according to the
form set out in the Third Schedule. The form prescribed by the Third Schedule
shows that it is restricted to candidates who desire to contest the election to
the Parliament. In the very nature of things, a candidate who wants to contest
the election for the office of the President cannot take the oath in any of the
forms prescribed by the Third Schedule. That Schedule does not prescribe any
form of oath for a person who desires to contest a Presidential election.
In the result, Election Petition No. 4 of
1982 is also dismissed. There will be no order as to costs.
N.V.K. Petitions dismissed.
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