S. Harcharn Singh Vs. S. Sajjan Singh
& Ors [1984] INSC 219 (29 November 1984)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)
CITATION: 1985 AIR 236 1985 SCR (2) 159 1985
SCC (1) 370 1984 SCALE (2)834
CITATOR INFO :
RF 1986 SC 3 (222)
ACT:
Representation of the People Act (43 of19s]).
s. 123 (3) (as amended by Act 40 of 1961)-Effect of amendment-Even a single
appeal on ground of religion, etc. amounts to a corrupt practice.
Representation of the People Act, 1951, s.
123 (Z), (3) and (3A)-Scope and object of-object of amendment-Duty of
Court-Appeal to religion-Test Substance and total effect of statement to be
considered.
Hukamnama -What is-Test for determination
thereof-Shri Akal Takth Importance in Sikh community-Communications from Akal
Takht in any form whatsoever-Whether Hukamnama-Effect thereof on the members of
Sikh community-Writing in Party papers and speeches made by prominent leaders
of the Party at election meetings to the same effect-No express denial or
explanation by the maker-Whether inference can be drawn that the allegation
stands proved.
Representation of the People Act, 1951, s.
123 (3)- Appeal on ground of religion-Evidence mostly oral-Duty of
Court-Standard of proof required and Test to be applied to determine corrupt
practice.
Representation of the People Act, 1951, s.
123 (3)- Constituency, a mixed one-Hindu votes and Sikh votes practically
divided equally-Akali Party, to which the returned candidate belonged to, in
alliance with CPI (M)- Whether appeal on ground of religion probable-Whether
probabilities of such a campaign can outweigh direct evidence if acceptable by
Court.
Practice and Procedure-Source to be disclosed
for a proper verification of an affidavit or a petition based on certain
information.
HEADNOTE:
The expression "systematic" has
been deleted from sub- section (3) of section 123 of the Representation of the
People Act 1951 by the Amending Act by a candidate or his agent or by any other
person with the consent of the candidate or his election agent or by any other
person on the ground of his religion, race, caste, community or language etc.
would be a corrupt practice.
160 The appellant challenged the election of
respondent No. 3 to the Punjab Legislative Assembly on the allegations of
corrupt practice. It was contended that section 123(3) of the Representation of
the People Act had been violated for three reasons, namely, (a) Sponsorship of
respondent No. 3 and distribution of election ticket to him for the Assembly elections
by the Akal Takht, "the supreme religious authority of the Sikhs",
(b) Issue of Hukumnama (Ex.p-4) by the Jathedar of the Akal Takht in the matter
of Assembly elections having regard to the circumstances in which it was
issued, indicated that the approval of the Akal Takhat was obtained in order to
give his decision a colour of religious authority and (c) Appeal to the voters
at election meetings by referring to the Hukamnama, to the writings in the
Akali Times and exhorting them to vote for respondent No. 3 by applying to the
religious sentiments and warning them of the consequences of not doing so. It
was further alleged that an ex-Chief Minister of the State as well as the
respondent No.
3 himself had represented to the voters at
different election meetings that respondent No. 3 had been sponsored by the
Akal Takht.
Respondent No.3 denied the aforesaid
allegations and contended that the alleged Hukamnamas were not Hukamnamas of
Akal Takht.
The High Court held that Akal Takht was a
symbol of political and religious powers and the documents alleged to be the
Hukumnamas of Akal Takhat, but contained decision of the leaders of the Akali
Party written on the letter head of the Akal Takhat and announced by a
Jathedar, and the appellant had not succeeded in proving the charges of corrupt
practice. The election petition was accordingly dismissed.
The contentions raised in the High Court were
reiterated by the appellant before this Court. In addition, it was contended
(i) The documents shown at the meetings were Hukumnamas and having regard to
the background it cannot be said that it did not have the effect of Hukumnama
on the community at large of inducing them to believe 158 ignoring the claim of
the candidate nominated by Shri Akal Takht and represented to be supported by
Hukamnama would be an act of sacrilege on the part of a good Sikh; and (ii)
Respondent No. 3 being a Sikh and a member of the Akali Dal and having known of
the conditions precedent which were required to be fulfilled before a proper Hukumnama
could be issued had not chosen to raise these contentions in his written
statement. It was also urged that the concept of secular democracy is the basis
of the Indian Constitution and that the paramount and basic purpose under lying
section 123 (3) of the Act is the concept of secular democracy.
Section 123 (3) was enacted to eliminate from
the electoral process, appeals to divisive factors such as religion, caste,
etc. which give vent to irrational passions. It is essential that powerful
emotions generated by religion should not be permitted to be exhibited during
election and that decision and choice of the people are not coloured in any
way. Condemnation of electoral campaigns on lines of religion. caste, etc. is
necessarily implicit in the language of section 123 (3) of the Act.
Consequently the section must be so construed as to suppress the mischief and
advance the remedy.
161 Respondent No. 3 contested the appeal,
and it was urged: (i) in order to constitute a Hukumnama proper there were certain
conditions precedent, A which were required to be fulfilled, namely, there
should be a meeting of Sarbat Khalsa, that is, a meeting of all the Sikhs and
secondly anunanimous decision must be arrived at which should be followed by
the approval of Shiromani Gurdwara Prabandhak Committee and the decision should
be announced from Shri A kal Takht and that in the instant case no such
Hukamnama held been issued; (ii) the constituency was a mixed constituency
equally B divided into Hindu votes and Sikh votes and an appeal in the name of
the Sikh religion in such a situation was unlikely; and (iii) the Akali Party
was in alliance with CPI (M) and it was most improbable that when one of the
allied parties was a Marxist Party, a candidate of Akali Dal would appeal in
the name of religion.
Allowing the appeal, C ^
HELD :1. Respondent No. 3 was guilty of
corrupt practice under section 123 (3) of the Representation of the People Act,
1951. [189D]
2. As a result of amendment of sub-section
(3) of section 123 of the Act even a single appeal by a candidate or his agent
or by any other person with the consent of the candidate or his election agent
to vote or refrain from voting for any person on the ground of his religion,
race, caste, community or language would be corrupt practice.
[1656]
3. Section 123 (2), (3) and (3A) of the Act
were enacted to eliminate from the electoral process appeals to those divisive
factors which arouse irrational passions that run counter to the basic tenets
of the Constitution. Due respect for the religious beliefs and practices, race,
creed, culture and language of other citizens is one of the basic postulates of
our democratic system. The line has to be drawn by the court between what is
permissible and what is prohibited after taking into account the facts and
circumstances of each case interpreted in the context in which the statements
or acts complained of might have been made. The court has to examine the effect
of statements made by the candidate upon the minds and feelings of the ordinary
average voter. [171B-D] F Ambika Sharan Singh v. Mahant Mahadev and Giri and
others, [1969] 3 S.C.C. 492 and Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdas Mehra and Ors.. [1975] Suppl. S.C.R. 281, relied upon.
4. With a view to curb communal and
separatist tendencies, section 123 (3) of the Act has been amended in 1961. In
order to determine whether certain activities come within the mischief of
section 123 (3), regard must be had to the substance of the matter rather than
to the mere form or phraseology. The inhibition of section 123 (3) should not
be permitted to be circumvented indirectly or by circuitous or subtle devices.
The court should attach importance to the effect and impact of the acts
complained of and always keep in mind the paramount purpose, namely, to prevent
religious influence from entering the electoral field. The nature and
consequence of an act may not appear n its very face but the same can be
implied having regard to the language, H 162 the context, the status and position
of the person issuing the statement, the appearance and known religion of the
candidate, the class of persons to whom the statement of act is directed, etc.
[176C-F]
5. It would not be an appeal to religion if a
candidate is put up be saying vote for him because he is a good Sikh or he is a
good Christian or he is a good Muslim, but it would be an appeal to religion if
it is publicised that not to vote for him would be against Sikh religion or
against Christian religion or against Hindu religion or to vote for the other
candidate would be an act against a particular religion. It is the total effect
of such an appeal that has to be borne in mind in deciding whether there was
all appeal to religion as such or not. In each case, therefore, the substance
of the matter has to be judged. [182E-G] This question, however, has to be kept
in view within proper limit and religious leaders have right freely to express
their opinion on the comparative merits of the contesting candidates and to
canvass for such of them as he considered worthy of the confidence of the
electorates.
[183B] Shubnath Deograrm v. Ram Narain Prasnd
an(l others, [1960] 1 S.C.R., 953, Ram Dial v. Sant Lal and others, [1959]
Supp. 2 S.C.R., 748 and Kultar Shingh v.Mukhtiyar Singh, [1964] 7 S.C.R., 790,
followed.
6. Whether the documents said to be
Hukamnamas were actually Hunkamnamas or not should not be decided in a
technical manner. in these matter the Court has to examine the effect or the
statements made by the candidate on his behalf upon the minds and the feelings
of the ordinary voters of the country. It is undisputed that Shri Akal Takht
enjoys a unique position amongst the Sikhs. It is indubitable that any
communication from Shri Akal Takht which is represented by eminent members of
the Sikh community as Hukamnama would have great religious persuasive value
even though strictly speaking it might or might not be a Hukamnama. [182A-D]
Zyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra
Glory of the Akal Takht, p. 97 by Harjinder
Singh Dilgeer, Singh The Sikh Religion Vol. IV, p. 3 by M. A. Macauliff and a A
History of the Sikhs by Khuswant Singh Vo. 1: 1469-1839, p. 63, referred to.
7. From the evidence on record, in the
background of the fact that some communications from Akal Takht call it
Hukamnama or any other name were issued and the issues of editorials of Akali
Times were pointed out by the ex-Chief Minister at the meetings, and the same
had not been denied by him, it is apparant that appeal in the name of religion
was made on behalf of the respondent No. 3. Though some facts stated in the
oral evidence about the meetings had not been stated in the petition, but when
evidence was tendered and was not shaken in cross-examination and the versions
have a ring of truth in the background of other facts, the factum of appeal to
religion by the respondent No. 3 has been proved. This conclusion becomes
irresistible in view of absence of any express denial by the ex-Chief minister
and in the absence of any explanation for not calling him as a witness on this
point, [188-E to 189A] 163
8. It is not a question of merely proving a
fact by adverse presumption. A In cases where there is positive evidence to
prove a fact and there is no denial by the person who is most competent to deny
that fact and no reason was given for his not giving evidence the conclusion is
that the evidence advanced must be accepted. In the instant case, in the
background of his eminence and his position, as the ex-Chief Minister, his
relationship with respondent No. 3 and especially in view of the fact that
respondent No. 3 had in fact been nominated by the same group on behalf of the
Sikh community with which the ex.Chief Minister was so intimately connected
leads to the conclusion that the evidence advanced on behalf of the appellant
must be accepted. It is clear that the ex-Chief Minister as well as the elected
candidate himself represented to the electorate that respondent No. 3 was a
nominee of the Akal Takht and that an appeal to vote for respondent No. 3 in
the name of Akal Takht with all the consequences of Hukamnama of Akal Takht was
highlighted before the electorate [185H; 186A-D1 C
9. In matters of this nature, the evidence
naturally is mostly oral. Especially where the charge is a grave one, namely,
corrupt practice which if proved would disentitle the candidate to contest the
election for sometime to come, the Court must proceed with caution. [188C]
Rahim Khan v. Khurshid Ahmed & ors., [1975] I S.C.R. 643 and Ch. Razik Ram
v. Ch. I.S. Chauhan & ors., A.I R. 1975 S.C. 667, relied upon.
Kanhaiyalal v. Mannalal & ors., [1976] 3
S.C.R. 808 and M. Narayama Rao v. G. Venkata Reddy & ors., [1977]1 S.C.R. 493,
referred to, 10 While insisting on standard of strict proof, the Court should
not extend or stretch this doctrine to such an extreme extent as to make it
well nigh impossible to prove an allegation of corrupt practice. Such an
approach would defeat and frustrate the very laudable and sacrosanct object of
the Act in maintaining Purity of the electoral process.
[189B] Ram Saran Yadav v. Thakur MIJneshawar
Nath Singh & ors.
(Civil Appeal No. 892 (NCE) of 1980), relied
upon.
11. The contentions of the respondent No. 3
that since it was a mixed constituency and his party was in alliance with CPI
(M), it was unlikely and improbable to make an appeal in the name of religion,
are rejected for the reason that if there is conclusive evidence to that effect
then such a theory would not outweigh the facts proved. These are only
probabilities of a situation but if there is direct evidence of propaganda or
campaign by candidate in the election in the name of religion, the
probabilities of such a campaign not being made in view of other surrounding
circumstances, cannot outweigh the direct evidence if the Court is otherwise inclined
to accept such direct evidence.
[170B.C] Ambika Sharan Singh v. Mahant
Mahadev and Giri and others, 1969] 3 S.C.C. 492, followed.
12. For a proper verification of an affidavit
or a petition based on certain informations, the source should be indicated.
But in the instant case? 164 this question was not examined further because no
objection at any stage was taken. [189 Ziyauddin Burhanuddin Bukhari v.
Brijmohan Ramdas Mehra & ors [1975] Suppl. S.C R. 281 Padmabati Dasi v.
Rasik Lal Dhar. I.L.R. XXXVII Calcutta 259 at 260 and Hardwari Lal v. Kanwal
Singh, [1972] 2 S.C.R. 742 followed.
& CIVIL APPELLATE JURISDICTION: Civil
appeal No. 3419 (NCE) of 1981 From the Judgment and order dated the 14th
October, 1981 of the Punjab and Haryana High Court in Election Petition No. 40
of 1980 Soli J. Sorabji, K. P. Bhandari S. C. patel and Dr. Ruksana Swamy for
the appellant.
G. S. Grewal and R. A. Gupta for the
Respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. The appellant and the respondents contested the
election to Punjab Legislative Assembly held in May, 1980 from Muktsar
Constituency.
Polling was held on 31st May, 1980 and the
result was declared on 1st June, 1980 in which the appellant secured 29600
votes and respondent No. 3 secured 30003 votes. The other candidates got only
nominal votes. There was thus a difference OF 403 votes in favour of the
respondent No. 3.
Respondent No. 3 was declared elected. The
election of respondent No. 3 was challenged by an election petition alleging
that the respondent No. 3 had indulged in corrupt practice in the said election
and as such his election was liable to be set aside and he was liable to be
disqualified for corrupt practice. Corrupt Practice make the election liable to
be set aside under section 101 (l) (b) of the Respondent of the People Act,
1951, hereinafter called the Act which is as follows:- "100. Grounds for
declaring election to be void-
1. Subject to the provisions of sub-section
(2) if the High Court is of opinion- (a) ............
(b) that any corrupt practice has been
committed by a re- 165 turned candidate or his election agent or by any person
with the consent of a returned candidate or his election A agent; or" What
are deemed to be corrupt practices are indicated in section 123 of the Act.
Sub-section (3) of the said section is as follows:- "The appeal by a
candidate or his agent or by any other person with the consent of a candidate
of his election agent to vote or refrain from voting for any person on the ground
of his religion, race, caste, community or language of the use, or appeal to
religious symbols or the use of, or appeal to, national symbols, such as the
national flag or the national emblem, for the furtherance of the prospects of
the election of that candidate or for prejudically affecting the election of
any candidate:
Provided that no symbol allotted under this
Act to a candidate shall be deemed to be a religious symbol or a national for
the purpose of this clause".
It may be mentioned that before the amendment
Act, 40 of 1961, effected on 12th September, 1964, sub-section (3) of section
123 of the Act was as follows:- E "The systematic appeal by a candidate or
his agent or by any other person, to vote or refrain from voting on grounds of
caste, race, community or religion or the use of, or appeal to, religious
symbols or the use of, or appeal to, national symbols, such as the national
flag or the national emblem, for the furtherance of the prospects of that
candidate's election".
As a result of this amendment, inter alia,
the expression "systematic" has been deleted and only
"appeal" by a candidate or his agent or by any other person with the
consent of the candidate or his election agent to vote or refrain from voting
for any person on the ground of his region, race caste, community or language
or color continues to be corrupt practice. The statement of objects and reasons
for introducing amendments in section 123, 125, 139 and 141.
Of the Act in 1961 stated inter.alia, as
follows .- "For curbing communal and separatist tendencies in 166 the
country it is proposed to widen the scope of the corrupt practice mentioned in
clause (3) of section 123 of the 1951 Act and to provide for a new corrupt
practice (See sub-section (3) and (3A) of section 123) and a new electoral
offence for the promotion of feelings of hatred and enmity on grounds of
religion, race, caste, community or language (See new section 125) ".
Therefore even a single appeal by a candidate
or his agent or by any other person with the consent of the candidate or his
election agent to vote or refrain for voting from any person on the ground of
his religion, race, caste or community etc. would be corrupt practice.
The allegations against respondent No. 3 were
that he, his election agent and other per on with his consent had appealed to
the voters of the constituency in the name of religion, namely Sikh religion
for voting in his favour or to refrain from voting in favour of the appellant.
In brief it is alleged that Hukamnamas, the nature, the content and the effect
of which we will examine later, were issued urging the voters to vote for
respondent No. 3 and not to vote for the appellant. It was further alleged that
in the meetings, inter alia, at ( 1) Muktsar, (2) Khokhar and (3) Harika Kalan
speeches were delivered by eminent public persons appealing to the voters that
as respondent No. 3 was the candidate of the Akal Takht and his nomination was
supported by the Hukamnama of Akal Takht, the people should vote for him and
not to vote for him would be a against the tenets of the Sikh religion and
would be blasphemous act against the Sikh religion In publications like Akali
Times the same view was propounded and it was indicated that lndira Congress
was always against Sikh people and Sikh religion and as such to vote for
Congress (1) would be to vote against Sikh religion, were pointed out at the
meetings. It was emphasised before us that a Hukamnama for a Sikh is of great
consequence and disobedience to Hukamnama entails great misfortune. It is necessary,
however, to examine in detail the actual evidence adduced in support of these
allegations. The learned Judge of the High Court of Punjab and Haryana on an
analysis of the nature of the Hukamnama as well as examination of the evidence
adduced before him came to the conclusion that neither was it established that
respondent No.. 3 had appealed in the name of religion in terms of section 123
of the Act nor was the learned Judge convinced 167 about the veracity or the
correctness of the evidence adduced on behalf of the appellant as to what
happened in the three meetings. A The learned Judge accordingly came to the
conclusion that the appellant had failed to prove the corrupt practice alleged
against respondent No. 3. The learned Judge emphasised that allegations of
corrupt practices in an election petition are in the nature of quasi-criminal
charges and must be proved beyond reasonable doubt as such. The learned judge
was of the opinion that the appellant had not succeeded in proving The said
charges beyond reasonable doubt. He accordingly dismissed the said election
petition.
Being aggrieved by the said decision and
judgment of the learned Judge, this appeal has been preferred by the appellant
under section 116A of the said Act.
Before we examine the actual contentions and
the evidence, it may be appropriate to bear in mind the principles enunciated
in two decisions of this Court on the principle underlying section 123(3) of
the Act. D Ambika Sharan Singh v. Mahant Mahadev and Giri and others(l was an appeal
against the order of the High Court of Patna declaring the appellant's election
from Barhara Assembly Constituency, Bihar, void under section 100(l) of the
Act. At the time of the general election in February, 1967, the appellant was
the Minister of State in the Finance Department of the State of Bihar. There
were in all eight candidates contesting from Barhara Constituency. The poll day
was 15th February, 1967. Having obtained 21,791 votes against 20,243 votes
obtained by respondent No. 1, the appellant was declared elected. F In the
election petition filed by respondent No. 1 thereafter, he made a number of
ALLEGATIONS of diverse corrupt practices giving particulars thereof in more
than ten schedules. The appellant denied all these allegations and filed a
recriminatory petition under section 97 of the Act. The High Court after
examining the evidence held the appellant guilty of three corrupt practices,
namely of distributing money to Harijan voters in various villages as bribery
of having canvassed on their basis of his caste, namely, Rajput, and of having
procured the assistance of four gazetted officers named (1)11969] 3 S.C.C. 492.
168 therein. We are concerned with the second
corrupt practice alleged i.e. having canvassed on the basis of his caste.
Before this Court, the question involved was
whether the High Court was correct in holding the appellant guilty of three
corrupt practices. The High court after considering the evidence held inter
alia that there was sufficient evidence to show that the compaign on the basis
of caste was carried on at numerous places and at some places by appellant
himself and at some places by others in his presence and at others by several
workers of the appellant including his election agent. The High Court felt that
the conclusion was inevitable that all this was done with the appellant's
consent, direct or implicit. This Court held that the High Court was right in
its conclusion and the appellant was proved to have committed corrupt practice
falling under section 123(3) of the Act. Dealing with the allegations of appeal
in the name of religion, this Court observed at page 497 of the report in
paragraph 12 and 13 thus:- "Para 12-Indian leadership has condemned
electoral campaign on the lines of caste and community as being destructive of
the country's integration and the concept of secular democracy which is the
basis of our Constitution. lt is this condemnation which is reflected in
Section 123(3) of the Act. Inspite of the repeated condemnation, experience has
shown that where there is such a constituency it has been unfortunately too
tempting for a candidate to resist appealing to sectional elements to cast
their votes on caste basis. The contention of counsel, however, was that there
was on the other hand the danger of a frustrated candidate mustering a number
of his followers to testify falsely in a vague manner that his opponent had
campaigned on the basis of his caste or community. Therefore, before such an
allegation is accepted, the Court must be on guard against such a possibility
and must demand adequate particulars. A witness deposing to such an allegation
must point out when, where and to whom such an appeal was made. That, said
counsel, was not done and therefore the evidence of witnesses however numerous
should not have been accepted.
Para 13 But where the allegation is that such
canvas sing was widespread and at several places it would be 169 impracticable
to call upon the election petitioner to give the names of persons alleged to
have been approached with A such an appeal and the actual words spoken to each
of them. If such an appeal is made' for instance, at a meeting it would be
difficult for a witness to name those to whom such an appeal is made, It is for
this reason that courts in England have made a distinction between bribery to
voters and treating them. In the latter class of cases, names of persons
treated by the candidate have not been demanded though the election petitioner
would be ordered to specify the character and extent of the alleged corruption.
This is so even though the English Law of elections emphasises the individual
aspect of the exercise of undue influence, whereas what is material under our
law is the commission of an act which constitutes corrupt practice. (See
Halsbury's Laws of England, 3rd ed., Volume 14, p. 278). A command by a
religious head to his followers that it was their primary duty to support a
particular candidate was held sufficient to vitiate the election and it was not
considered necessary to have the names of the persons to whom the command was
addressed." In that case before this Court there were other contentions
lmpeaching the evidence and indicating the improbabilities of the case against
the appellant. This Court after elaborate discussion came to the conclusion
that the allegation of appealing in the name of religion namely appealing on
the basis of caste was proved in the facts and circumstances of that case. It
was argued that Barhara constituency was a composite constituency and therefore
if the appellant and his agent were to campaign on caste basis, those belonging
to other castes would be alienated against him and as such an appeal instead of
advancing his cause would prove detrimental to it. This Court found this
submission to be untenable because it is not impossible that the candidate
inclined to campaign on the caste basis would concentrate on his votes and at
the same time leave his party propaganda machine to campaign amongst the rest
of the population. It would not, therefore, be correct to say that such a
campaign would be improbable and therefore evidence that such canvassing was
conducted should have been rejected.
In the instant case before us, similar
contentions were urged namely Muktsar was a mixed constituency namely there
were Hindu 170 votes and Sikh votes, according to one calculation practically
divided equally. It was submitted that appeal in the name of Sikh religion by
the appellant in such a situation was unlikely. As mentioned in the aforesaid
decision of this Court, if there is conclusive evidence to that effect, then
such a theory would not outweigh the facts proved. It was then, submitted that
Akali Party was in alliance with C.P.I. (M) and it was most improbable that
when one of the allied parties was a Marxist Party, the candidate of Akali Dal
would appeal in the name of religion.
This for the reasons indicated before is also
not an acceptable view. These are only probabilities of a situation but if
there is direct evidence of propaganda or campaign by candidate in the election
in the name of religion, the probabilities of such a campaign not being made in
view of other surrounding circumstances, cannot outweigh the direct evidence if
the Court is otherwise inclined to accept such direct evidence.
In Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdas Mehra and ors.,(l) the appellant, a candidate of Muslim League defeated
respondent No. 3, Shauket Chagla, the Congress candidate in the Maharashtra
State Assembly Election. Respondent No. 1, a voter filed an election petition,
inter alia, alleging that the appellant had appealed to the voters to refrain
from voting for respondent No. 2 on the ground of religion and that the
appellant had promoted feelings of enmity or hatred between different classes
of citizens of India on ground of religion.
The various appeals to the voters on the
ground of religion made by the appellant had been set out in different
sub-paragraphs It is not necessary to set out in detail the actual allegations
made in that case as these were relevant for the purpose of that case only. It
may however be pointed out that it was stated about Chagla that "at the
moment we are in SUCH a war in which our opponent is such a person who is
playing WITH our religious affairs, He considers us to be
a community whose conscience is dead". It was further alleged that
Chagla's wife Nalini was a Hindu and his son Ashok Chagla used to attend the
mosque as well as the temple and he should be excluded from Muslim localities.
It was further alleged that he was neither a good Hindu nor a true Muslim so
neither God nor Bhagwan was pleased with him.
(1) 11975] SUPPI. S.C.R. 281.
171 It was observed by this Court that our
Constitution- makers intended to set up a Secular Democratic Republic. Our
political A history made it particularly necessary that the basis of religion,
race, caste, community, culture, creed and language which could generate
powerful emotions depriving people of their powers of rational action should
not be permitted to be exploited lest the imperative conditions for preservation
of democratic freedoms were disturbed. Section 123(2) and (3) and (3A) was
enacted to eliminate from the electoral process appeals to those divisive
factors which arouse irrational passions that run counter to the basic tenets
of our Constitution. Due respect for the religious beliefs and practices, race,
creed, culture and language of other citizens is one of the basic postulates of
our democratic system. The line has to be drawn by the court between what is
permissible and what is prohibited after taking into account the facts and
circumstances of each case interpreted in the context in which the statements
or acts complained of might have been made. The court has to examine the effect
of the statements made by the candidate upon the minds and feelings of the
ordinary average voters of this country.
This Court in that decision reiterated at
page 297 of the report as follows:- "The Secular State, rising above all
differences of religion, attempts to secure the good of all its citizens
irrespective of their religious beliefs and practices. It is neutral or
impartial in extending its benefits to citizens of all castes and creeds.
Maitland had pointed out that such a state has to ensure, through its laws,
that the existence or exercise of a political or civil right or the right or
capacity to occupy any office or position under it or to perform any public
duty connected with it does not depend upon the profession or practice of any
particular religion.
Therefore, candidates at an election to
legislature which is a part of "the State", cannot be allowed to tell
electors that their rivals are unfit to act as their representatives on grounds
of their religious professions or practices. To permit such propaganda would be
not merely to permit undignified personal attacks on candidates concerned but
also to allow assaults on what sustains the basic structure of our Democratic
State." H 172 Keeping in background these principles, it would be
necessary to refer to the allegations, the evidence and the conclusions of the
High Court on this point in order to decide this appeal. It was alleged that
Hukamnama was issued by Shri Akal Takbt on its official letter-head bearing its
religious symbol and seal on 1st March, 1980, according to which the working
Committee of the Akali Dal was dissolved and a 7-member Ad-hoc Committee was
appointed under the Chairmanship of Sant Harchand Singh Longowal which was
conferred with the full powers of Akali Dal. Shri Akal Takht is situated within
the precincts of Harmandir Sahib (Golden Temple). Guru Granth Sahib installed
in Harmandir Sahib is brought every day late in the evening to Shri Akal Takht
for sukh Asan. Another Hukamnama, dated 6th October, 1979 was issued. Said
Hukamnama which is Exh. P and appears at pages 17 and 18 of Part II of the
Paper Book stated that in view of the resignations tendered to the Jathedar of
Sri Akal Takht, on 27th September, 1979, certain decisions were taken. It
further stated in one of the items that in view of the coming Parliamentary
elections and the unity of the panth and its high priests, after scrutinising
the list of the delegates, they would in their supervision conduct the election
of the President of Shiromani Akali Dal. It was publicised to the entire Sikh R
community that Shiromani Akali Dal should be considered as Supreme in the
Panth. It further stated that the legislators elected on the Panth ticket were
being instructed to run the Punjab Government unitedly under the leadership of
Sardar Parkash Singh Badal, the Chief Minister and maintain the prestige of the
Panth.
It was further stated that all the members of
the Shiromani Committee will have to work unitedly under the leadership of
Jathedar Gurcharan Singh Tohra, for the betterment of management of gurdwaras
and to speed up the preachings of Sikhism. The said document further stated
that a seven member committee was being constituted for distribution of tickets
and adjustments with other parties in the coming Lok Sabha elections. The names
of seven members were given which included Sant Harchand Singh Ji Longowal, S.
Jagdev Singh Ji Talwandi, S. Parkash Singh Ji Badal and others. Sant Harchand
Singh Ji Longowal was appointed as Chairman of the Committee. It further
stipulated that the Sikh, who defied the propriety of Akal Takht and offers
'Ardas' would be punished. He should present himself at Sri Akal Takht and get
himself absolved and further directed that persons - opposing the above
decision, made for maintaining the unity of the Panth, would be dealt with
severely. It is further alleged that on 173 16th November, 1979, Hukamnama was
issued by Akal Takht on its official letter-head with religious symbol and seal
wherein punishment was imphsed by Akal Tkht on Jathedar Jagdev Singh Talwandi
and Jathedar Umra Nangal. These appear as Exh. P2 at pages 19 and 20 of Part I1
of the Paper Book.
On 29th February, 1980, a letter was written
which is Exh. P-3 and appears at page 21 of Part II of the Paper Book. This
letter contains the proposal of some leaders of Akali Party about the formation
of seven Member Ad-hoc Committee and disbanding of the Working Committee of the
Akali Dal. On 1st March, 1980 Hukamnama which is Exh. P-4 at page 22 of Part II
of the Paper Book was alleged to have been issued by Akal Takht on its official
letter-head bearing its religious symbol and seal. This Hukamnama gives
approval to the aforesaid proposal and made an official announcement that the
seven Member Ad-hoc Committee would from that date take upon all the
responsibilities of the Shiromani; Akali Dal.
Respondent No. 3 states in his evidence- that
he was not originally a candidate of Akali Dal but his candidature was taken up
at a subsequent stage and he was given a ticket by the seven-member committee
to contest the election. This is corroborated by Exh. P-29/A because 2nd May,
1980 was the last date for submitting nomination and on 3rd May, 1980,
respondent No. 3 was given ticket by the seven-Member Ad-hoc Committee for
Muktsar Constituency. See pages 90-92 of Part III of the Paper Book being the
statement of Dayal Singh.
Shri Dayal Singh gave evidence on behalf of
the appellant and he claims to be the Secretary of Akali Dal of which the
President was Jagdev Singh Talwandi. According to him Harchand Singh's name was
included in the list Exh. P.W. 29/A and not Exh. P-4/1 On 5th May, 1980 the
last date for withdrawal of candidature expired. On 14th May, 1980, election
meeting was addressed in village Thandwala by S. Parkash Singh Badal, a member
of the seven Member Ad-hoc Committee appointed by the Akal Takht and by
respondent No. 3, the elected candidate.
There were articles in Akali Times by Surjit
Singh, Chief Editor on 16th May, 1980. These articles were to the effect that
it was a religious commitment for every Sikh to cast his vote for Akali Dal or
to the candidate supporter by the Akali Dal. One of the statements in the
article 174 was that Indira Congress was an anti-Sikh organisation. On 18th
May, 1980, it was further stated in the said Akali Times that a Sikh cannot be
supporter of that organisation and to have commitment with the Congress was a
sin against Sikh Community's interest.
In view of the nature of the points urged in
this appeal, it would be appropriate to refer to some portions of the writings
in Akali Times which were alleged to have been highlighted at several election
meetings by respondent No. 3. One of the articles is Annexure P-5 which appears
at page 23 of Part II of the Paper Book. It is headed thus "A Supporter of
Indira Congress (1) cannot be a Sikh". It is stated inter alia: "It
becomes a religious commitment for every Sikh to treat his vote a property of
the Akali Dal and should stick to it by all means. To be a Sikh, is to adhere
to the Guru. To follow the Sikhism is not a small thing, it is gift bestowed by
the Almighty Vaheguru. Those, who are admitted into the Sikhfold, they protect
this faith even at the cost of their lives". "There are certain
leaders in the Indira Congress, who look Sikh by appearance. And they, for
their selfish and political motives, claim to be Sikhs.
There is no dearth of such persons who
declare themselves to be supporters of Punjab Panjabi language and its culture,
and also they pretend to be protectors of the Sikh interests. Actually they are
wolves in sheep's clothing".
There were several other articles to that
effect which have all been exhibited. It is manifest that propaganda on
religious lines was carried on. It is not necessary to set out in detail all
the contents of the various articles. As an example one article may be
mentioned which was headed as "A Sikh cannot be a Supporter of Indira
Congress". The article inter alia contained the following- "According
to the press reports, the police is harassing Sant Bhinderwala, with the
pretext of enquiry. This is being done because the Nirankaries are pressing to
harass the Sikh leaders. On the other hand, the threatening letters received in
the office of Shiromani Gurdwara Prabandhak Committee, and about which all the
Indian Newspapers have published reports and which is being condemned by all Sikhs,
no leader of the Indira Congress has even spoken about that. On the one hand
the highest agency of police, the C. B. I. is conducting enquiry, about the
murder of Baba Gurbachan Singh and if the Nirnkaries are not satis- 175 fied
with that, then a special committee is instituted, but on A the other hand, the
Governor of Punjab Mr. Hathi on the instance of Central Govt. is not going to
appeal in the High Court against the murders of thirteen Sikhs. This is such a
political policy which means opposition of the sikhs and discrimination against
the sikhism. I am told many times by my friends that the attitude of the former
Prime Minister Mr. Morarji Desai was also anti-sikh. This is true and the Akali
Times has many times wrote about it. But the opposition of Morarji Desai
confirms my argument because Morarji Desai also belongs to the same congress
stock to which Indira Gandhi belongs. In case of rule in India there can be
many differences between Indira Gandhi and Morarji Desai but their anti-sikh
attitude is common. Mr. Indira Gandhi never tried to prove that she has no
enmity with the sikhs.
With these state of affairs, the sikhs,
living in Punjab and out of it, should think it seriously that their political
and religious life can then only be saved if the akali dal rules in Punjab. In
the coming elections, the support of Indira Congress by any sikh will be a stab
in the back of sikh interests".
lt is alleged that on 24th May, 1980,
respondent No. 3, the elected candidate, addressed election meetings in villages
Khokhar and Harika. Respondent No. 3 mentioned to the gathering that he was a
candidate of Akal Takht. On 25th May, 1980, it was further alleged that
election meeting was held at Muktsar. This meeting was admittedly addressed by
Shri Parkash Singh Badal and respondent No. 3. There certain statements were
made with which we shall deal later.
31st May, 1980 was the date of polling. The
result was declared on 1st June, 1980. The petitioner/appellant filed the
election petition on 16th July, 1980, and on 14th October, 1980 the petition
was dismissed.
In support of the contentions in this appeal,
it was alleged by counsel that the concept of secular democracy is the basis of
the Indian Constitution. The paramount and basic purpose underlying section 123
(3) of the Act is the concept of secular democracy. Sec- 176 tion 123 (3) was
enacted so as to eliminate from the electoral process appeals to divisive
factors such as religion, caste, etc. which give vent to irrational passions.
It is essential that powerful emotions generated by religion should not be
permitted to be exhibited during election and that decision and choice of the
people are not coloured in any way. Condemnation of electoral campaigns on
lines of religion, caste, etc. is necessarily implicit in the language of
section 123 (3) of the Act. Consequently, the section must be so construed as
to suppress the mischief and advance the remedy. Legislative history of this
section is important from this point of view. The statement of objects and
Reasons of the Amending Act, 1961 clearly mentions the object of the amendment
. It was ' for curbing communal and separatist tendencies in the country. It is
proposed to widen the scope of the corrupt practice e mentioned in clause (3)
of section 123 of 1951 Act and to provide for a new corrupt practice". In
order to determine whether certain activities come within the mischief of
section 123 (3), regard must be had to the substance of the matter rather than
to the mere form or phraseology. The inhibition of section 123 (3) should not
be permitted to be circumvented indirectly or by circuitous or subtle devices.
The court should attach importance to the
effect and impact of the acts complained of and always keep in mind the
paramount purpose of section 123 (3) namely to prevent religious influence from
entering the electoral field. The nature and consequence of an act may not
appear on its very face but the same can be implied having regard to the
language, the context, the status and position of the person issuing the
statement, the appearance and know religion of the candidate, the class of
persons to whom the statement or act is directed, etc.
We have to examine the facts of this case in.
the background of these principles. It was contended on behalf of the appellant
that section 123 (3) of the Act had been violated for three different reasons:
(a) Sponsorship of the respondent No. 3 and
distribution of election ticket to him for the Assembly elections by the Akal
Takht, which is "the supreme religious authority of the Sikhs".
(See in this connection statement of P. W.
25-Giani Pratap Singh at page 69 of Part III of the Paper Book! 177 Appeal to
religion, says counsel for the appellant, is implicit in the very act of
sponsoring of respondent No. 3 as a candidate at t he election by Akal Takht on
account of the unique religious position it occupies and the tremendous
religious authority and influence it wields amongst the sikhs.
b) Issue of Hukamnama (exhibit P. 4) by the
Jathedar of the Akal Takht in the matter of Assembly elections having regard to
the circumstances in which it was issued, indicates that the approval of the
Akal Takht was obtained in order to give this decision a colour of religious
authority.
(See in this connection the evidence of Giani
Pratap Singh, P. W. 25 at page 70 of Part III of the Paper Book).
(c) It is further urged that appealing to the
voters at election meetings held in Muktsar, Khokhar and Harika Kalan by
referring to the Hukamnama, to the writings in the Akali Times and exhorting
them to vote for respondent No. 3 by applying to the religious sentiments and
warning them of the consequences of not doing so constitute appeal to religion.
As these contention were not accepted by the
learned Trial Judge, it would be necessary to analyse the evidence and the
reasons of the learned Trial Judge for not accepting these in order to deter-
mine the contentions urged in this appeal.
Whether it was a Hukamnama or not and whether
in this case Hukamnama in the proper sense was issued by Shri Akal Takht
directing casting of the votes in favour of respondent No. 3 and if so, what
were the consequences of such Hukamnama, are questions that have been canvassed
before us.
Sub-section (3) of section 123 prohibits
"appeal by a candidate or his agent or by any other person with the
consent of a candidate or his election agent to vote or refrain from voting for
any person on the ground of his religion, race, caste, community or
language". The other part of sub-section (3) of section 123 which defines
corrupt practices is not relevant for the present purpose.
It will be necessary in this case to examine
in detail the concept of Shri Akal Takht amongst the Sikhs. In this case we
have the evidence of the learned professors and certain well-known text-books
dealing with this question. H 178 A on behalf of respondent No. 3, it was urged
that in order to constitute a Hukamnama proper, there were certain conditions
precedent which were required to be fulfilled namely there should be a meeting
of Sarbat Khalsa i.e. a meeting of all the Sikhs and secondly a unanimous
decision must be arrived at and than it should be followed by the approval of
Shiromani Gurdwara Prabandhak Committee and the decision should be announced
from Shri Akal Takht. If only these conditions were fulfilled, submits counsel
for respondent No. 3 then a Hukamnama proper with all the consequences of
disobedience of Hukamnama by a Sikh can be said to follow.
lt was urged on behalf of the respondent No.
3 that it was not open to the appellant to raise this contention because in the
election petition, it was stated that Hukamnama was issued. Respondent No. 3
had not stated in his written statement that these conditions were required to
be fulfilled before a proper Hukamnama could be issued. It was urged that
respondent No. 3 was himself a Sikh and was a member of the Akali Dal and must
have known the prerequisites, yet he did not raise these conditions. On the
other hand on behalf of the respondent No. 3 it was submitted that in paragraph
9 of the written statement filed by respondent No. 3, this point has been
raised and it was said that no Hukamnama has been issued in favour of
respondent No. 3.
The author, Harjinder Singh Dilgeer in his
book "Glory of the Akal Takht" quotes at page 97 historian C. H.
Loehlin in his book "The Sikh and their Scriptures" at p. 1 thus:-
"The Akal Takht is 'a preaching centre' and also the seat of political and
religious conferences.. In fact today the Akal Takht is the symbol of political
activity of the Sikhs. All great Sikh movements have been led from the seat of
the Sikhs". .
At page 99 in Appendix lI, the author
described "Sarbat" as meaning whole. Sarbat Khalsa means collectivity
of the Sikh people. It is a theo-political doctrine, by means of which the
Sikhs assume the powers and the status of the centralised conscience and will
of the people. Sarbat Khalsa was first used for the gathering of all Sikhs on
the days of Diwali and Baisakhi at Shri Akal Takht, Amritsar.
After 1721, the Sarbat Khalsa gathered twice
in a year 179 before Shri Akal Takht. Sarbat Khalsa used to discuss the
questions of Panthic interest at such gatherings and, gurmatas out of the
consensus of such meetings were passed.
The author of that book records that Sarbat
Khalsa has made many important decisions which have changed the history of the
Punjab. These include acceptance of jagir (1733), to build a fort at Amritsar
(1747),to from Dal Khalsa (1748) to attack Lahore (1760) etc. The usage of the
term Sarbat Khalsa began in the middle of the eighteenth century.
Previously, according to the author, every
individual could participate in the meetings of Sarbat Khalsa. Later on the
right got vested in the leaders of the Misls. According to the author, the last
meeting of the Sarbat Khalsa was held in 1805. It discussed the dispute of Lord
Lake and Holkar.
After this Maharaja Ranjit Singh, according
to this author, stopped political meetings and started taking decisions on the
advice of his ministers only. The author states that even in the twentieth
century, the major Sikh organisations (the Akali Dal and the S. G. P. C.) have
opted not to revive this institution and they decide major Sikh questions in
the All Sikh Parties' meetings. D Hukamnama according to the same author in
Appendix IV at page 1022 is a word used for the Royal letters issued by the
Mughal emperors, but it has a wider meaning for the Sikhs. Whereas the Mughal
orders were carried out under compulsion, the Sikh Hukamnama was acted upon as
a matter of pride. Not only the performance of the Guru's order but even the
darshan (a look at of the Guru's Hukamnama was considered as an honour. In that
Appendix IV of the said book the author gives several instances of Hukamnamas
used.
According to the author, historians believe
that the step of constructing the Akal Takht near Hari Mandir was due to Guru's
idea of keeping temporal and spiritual centres near each other so that both
should influence each other.
The author also refers that after the
construction of Akal Takht, Guru Hargobind issued Hukamnama (see also in this
connection. The Sikh Religion Vol. IV, p.3 by M.A. Macauliffe).
Kushwant Singh in his book "A History of
The Sikhs Volume I: 1469-1839 at page 63 discussed the Akal Takht of Hargobind
as follows:
180 " Across the Harimandir, he built
the Akal Takht (the throne of the Timeless God), where, instead of chanting
hymns of peace, the congregation heard ballads extolling feats of heroism, and,
instead of listening to religious discourses. discussed plans of military
conquests." He further mentions that Guru's abode in fact became like that
of an Emperor. He sat on a throne and held court.
He went out with a royal umbrella over his
head and was always accompanied by armed retainers. It has been described that
by this time, the Akal Takht had become a spiritual place, a military centre a
political office, a court, a place for gatherings, a durbar and a throne
issuing Hukumnamas (the royal letters).
It has been stated in the said book at page
32 that Sikhs used to assemble before the Takht twice a year and the
congregation was called the Sarbat khalsa (the whole khalsa) and the decisions
of the Sarbat khalsa were called Gurmatas.
It was contended before the learned judge on
behalf of the appellant that the documents Exh. P-1, Exh. P-2 and Exh. P-4 were
issued by Akal Takht and were therefore Hukamnamas.
It was contended that these documents showed
that the candidates were to be nominated by the seven members of the Committee
appointed by Akal Takht and they were the candidates of Akal Takht. It was
urged that Akal Takht was the highest religious authority and it was bounded
duty of all Sikhs to vote for the candidates nominated by Akal Takht. According
to him Sikh voters could not deny the dictate of Akal Takht. On the other hand
learned counsel for respondent No. 3 urged that such Hukamnama was not
Hukamnama of Akal Takht but the letters written by the Jathedar of Akal Takht.
The learned Judge came to the conclusion that
it was not necessary to go into the question as to whether Exhibits P-l and P-2
were Hukamnamas or not as these were issued long before the Assembly elections
and the portions of the petition relating to these were ordered to be deleted.
Whether Exhibit P-4 was a Hukamnama or not,
there was some dispute and the learned Judge referred to the oral evidence of
Dr. Fauja Singh, Professor of History, Punjabi University, Patiala, who was
examined i n the Election Petition No. 32 of 1980 (S. Satnam Singh Bajwa v.
Sujagar 181 Singh Sakhwan and another decided on 24th March, 1981). He had
deposed that Akal Takht was founded by Guru Hargobind Sahib, the Sixth Guru in
1606 A.D. On that occasion he put two swords one called the sword of 'Miri' and
the other called the sword of 'Piri'. 'Miri' and 'Piri are Persian words and connote
the temporal authority and spiritual authority respectively. The significance
of putting these two swords was to indicate the close relationship between
religion and its practice. Since Guru Arjan Dev, the Fifth Guru, was subjected
to torture by the Mughal Emperor Jahangir a strong reaction against that act of
tyranny was witnessed amongst the Sikhs. It was with that background that the
Sixth Guru decided to militarize the community along side of continuing to
impart religious teachings. Ever since the foundation of Shri Akal Takht it has
held a unique position in Sikh religion and Sikh history. During the eighteenth
century, meetings of 'Sarbat khalsa' were invariably held at Shri Akal Takht
twice a year-on Baisakhi and Diwali days. At these gatherings, unanimous
resolutions used to be passed which were known as 'Gurmatas'. All this has been
set out here in before and it is not necessary to examine in any further
details. It is undisputed that Shri Akal Takht enjoys a unique position amongst
the Sikhs. There is, however, difference of opinion between Dr. Fauja Singh and
Giani Partap singh regarding its powers as noted by the learned Trial Judge.
Dr. Fauja Singh had stated that it was a symbol of both political and religious
powers whereas Giani Partap Singh had stated that it was supreme religious
authority. Dr. Fauja Singh had been the Professor and the Head of the
Department of Sikh History in the Punjabi University from 1967-78 and since
1978 he is the Director, Punjab Historical studies. He is a scholar of great
repute and well versed in Sikh history. He has been teaching the subject since
long. The learned Judge felt that his statement should be preferred and came to
the conclusion that Akal Takht was a symbol of political and religious powers.
It was found, according to the learned Judge on the evidence, that Exhibit P-4
was not taken in the form of 'Gurumata.' on the other hand, it was decision
taken by the leaders of Akali Party at Fatehgarh Sahib written by Jathedar
Sadhu Singh on the letter-head of Shri Akal Takht who announced it.
The learned judge came to the conclusion that
there was no decision regarding the selection of candidates. The learned judge
was of the view that if the statement of Dr. Fauja Singh was read, it cannot be
held that the same was a Hukamnama of Shri Akal H 182 Takht. The learned Judge
referred to the view taken by P.C.
Jain, J. in election Petition No. 32 of
1980).
In our opinion it is not a technical question
whether exhibit P-4 was a Hukamnama or not. It is a question in the present
controversy which has to be judged from a broader perspective. As noted before
in these matters the Court has to examine the effect of the statements made by
the candidate on his behalf upon the minds and the feelings of the ordinary average
voters of this country.-See Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas
Mehra & Ors. (supra). It is undisputed that Shri Akal Takht enjoys a unique
position amongst the Sikhs. it is indubitable that any communication from Shri
Akal Takht which is represented by eminent members of the Sikh community as
Hukamnama would have great religious persuasive value even though strictly
speaking it might or might not be a Hukamnama. For the purpose of this appeal,
it is not necessary for us to decide whether in strict textual sense and strict
rules of the Sikh community P-4 was a Hukamnama or not. It was alleged that
Sardar Parkash Singh Badal represented it to be so and it was so represented by
the candidate himself and having regard to the background, it cannot be said
that it did not have the effect of a Hukamnama on the community at large of
inducing them to believe that ignoring the claim of the candidate nominated by
Shri Akal That and represented to be supported by Hukamnama would be an act of
sacrilege on the part of a good Sikh.
These questions should be very broadly
decided. It would not be an appeal to religion if a candidate is put up by
saying'vote for him' because he is a good Sikh or he is a good Christian or he
P is a good Muslim, but it would an appeal to religion if it is publicised that
not to vote for him would be against Sikh religion or against Christian
religion or against Hindu religion or to vote for the other candidate would be
an act against a particular religion. It is the total effect of such an appeal
that has to be borne in mind in deciding whether there was an appeal to
religion as such or not. In each case, therefore, the substance of the matter
has to be judged.
In the case of Shubnath Deogram v. Rant
Narain Prasad and others,(l) this Court reiterated that in substance it would
be an appeal on the ground of religion if the act in question has the [1960] I
S.C.R. p. 953.
183 effect of giving the impression that it
would be irreligious not to A vote for a particular party or person. Mr.
Justice Subba Rao, however, dissented from majority view on an examination of
the facts of that case.
This question, however, has to be kept in
view within proper limits and religious leaders have right freely to express
their opinion on the comparative merits of the contesting candidates and to
canvass for such of them as he considered worthy of the confidence of the
electorates. (See in this connection the observations of this Court in the case
of Ram Dial v. Sant Lal and others.(l) In Kultar Singh v. Mukhtiar Singh,(2)
this Court observed that in considering as to whether a particular appeal made
by a candidate falls within the mischief of section 123 (3) of the Act, the
courts should not be astute to read the words used in the appeal anything more
than what can be attributed to them on its fair and reasonable construction.
In the light of these discussions for the
purpose of this appeal, it is not necessary to accept the submissions on behalf
of the appellant that mere sponsorship of the respondent No. 3 and distribution
of election ticket to him for the Assembly election in the manner proved would
amount to an appeal to religion as such without considering the other facts and
circumstances and how it was put to the people or to the electorate. For this
purpose it would be necessary to refer to the evidence of meetings at three
places.
Regarding the meeting at Thandawal, counsel
for the appellant did not press it before us. The first meeting which we have
to consider is the meeting at Muktsar. P.W. 12, Hardam Singh gave evidence
about Muktsar. His village falls in Muktsar constituency and he stated that S
or 6 days before the date of the poll, a meeting was organised by the
supporters of respondent No. 3 at Muktsar at about S P.M. He attended the meeting.
According to him this meeting was addressed by Shri Parkash Singh Badal,
ex-Chief Minister, Punjab, Sant Harchand Singh Longowal and respondent No. 3
himself. It was stated that Shri Badal made a speech at about 6.30 P.M. He
exhorted the audience to vote for respondent No. 3 because he was a Gur Sikh.
He said that he had been put (1) [1959] Supp. 2 S.C.R. p. 748.
(2) [1964] 7 S.C.R. p, 790.
184 up as a candidate under the orders of the
Akal Takht and it was the religious duty of the Sikhs to vote for him. He also
showed one paper to the audience which according to him was a Hukamnama issued
by the Akal Takht. He further stated that there was good work done by
respondent No.3 and he would continue to do so if he was elected. It is deposed
by P.W.
12 that Sant Harchand Singh Longowal also
made a similar speech. Thereafter, respondent No. 3 spoke and said that he was
a candidate of Akal Takht and it was the duty of the Sikhs to vote for him. He
was cross-examined but nothing very substantial came out of it. He reiterated
in his cross- examination that Shri Badal told the audience that they should
vote for respondent No. 3 because he had been set up a candidate of Akal Takht.
Shri Longowal and respondent No.
3 also spoke. He denied the suggestion that
he was not present at that meeting.
P.W. 13 also gave evidence about the meeting
at Muktsar. Me corroborated that Shri Parkash Singh Badal, Harchand Singh
Longowal and respondent No. 3 addressed the meeting. His evidence was more in
corroboration with what has been stated. He however did not hear the speech of
the respondent No. 3 as he had left the meeting before that. He stated in his
cross-examination that four or five persons belonging to his village had
accompanied him to the meeting.
There was however nothing in substance with .
what has been stated.
As against this on behalf of the appellant,
three persons gave evidence namely R.W. 1, R.W. 2 and R.W. 8 R.W.
1 stated that there was a meeting in Muktsar
about a week before the polling at about 8.00 P.M. which lasted upto 1.00 P.M.
Meeting, according to him, was addressed by Shri Prakash Singh Badal and Shri
Harcharan Singh Fatanwalia.
According to this witness whose name was
Kashmiri Lal, Sant Longowal was neither present nor addressed the meeting.
According to him, Shri Parkash Singh Badal
only dwelt upon the achievements of his government and the fact that no
Inspector was allowed to harass the voters particularly the city voters. Other
speakers who addressed the meeting represented Janta Party, Communist Party and
Bhartiya Janata Party. According to him, in the meeting majority of the
audience were Hindus, as Muktsar town comprised of almost 70% of Hindu
population. In cross-examination he stated that he was a member of Muktsar
Municipal committee and he was a member of the C.P.I. and C.P.I.
185 had entered into alliance with Akali
Party. The other facts stated by him are not relevant on this point. A Krishan
Kumar son of Shri Jagan Nath who was also a Municipal Commissioner, Muktsar was
R.W. 2 and he spoke in favour of respondent No. 3. According to him, Shri
Fatanwalia and Shri Badal spoke but they spoke about the achievements of their
party and no appeal was made in the name of Akal Takht or in the name of
religion. According to him, Hindus outnumbered Sikhs by three times. He also
admitted that he was a member of the Communist Party of India (Marxist).
R.W. 8, the respondent No. 3 himself was the
next person C who gave evidence in support of himself. He said that Shri
Parkash Singh Badal visited Muktsar on 25th of May, 1980 and addressed a public
meeting there. That public meeting was addressed by Chaman Lal Joghi, Raj Kumar
Girdhar, Roshan Lal Joshi, Paras Ram Bagga, Jagroop Singh and by him. The above
said Hindu gentlemen belonged to the Janata Party whereas Jagroop Singh
belonged to the Communist Party. The audience, according to him, consisted of
75 per cent of the Hindus and 25 per cent of the Sikhs. Shri Badal had merely
said that he had been the Chief Minister of the State for a long time and if he
was elected, he would serve the people well. He admitted that he himself was
relative of Shri Parkash Singh Badal-his daughter was married to the younger
brother of Shri Badal.
The learned Judge has rejected the evidence
on ground of improbability and on the ground that the evidence was not
satisfactory because the witnesses had not stated that version to the appellant
nor were these allegations mentioned in the petition. The learned judge was
further of the opinion that in a constituency or place where Hindu population
outnumbered the Sikh population, it was unlikely that appeal in the name of
Sikh religion would be made. As against this, the following facts will have to
be borne in mind:
Shri Prakash Singh Badal had not chosen to
come and deny the allegations. Indisputably he was present at the meeting. He
would have been the best person to deny the allegations made about that
meeting. It is not a question of merely proving a fact by adverse presumption.
In case where there is positive evidence to 186 prove a fact and there is no
denial by the person who is most competent to deny that fact and no reason was
given for his not giving evidence especially in the background of his eminence
and his position, his relationship with respondent No. 3 and especially in view
of the respondent No. 3 had in fact been nominated by the same group on behalf
of the Sikh community with which Shri Prakash Singh Badal was so intimately
connected would lead to the conclusion that the evidence advance(l on behalf of
the appellant must be accepted. If that is accepted then the following facts
emerge:
(1) it was represented to the electorate that
respondent No. 3 was a nominee of Akal Takht by no less a person than the
former Chief Minister of the State in the presence of the candidate himself:
(2) the candidate himself made the said
statement.
It follows therefore that an appeal to vote
for respondent No. 3 in the name of Akal Takht with all the consequences of
Hukamnama of Akal Takht was highlighted before the electorate.
The next meeting which is material is the
meeting at Khokhar. Here also P. W. 17 Makhan Singh gave evidence. His village
falls in Muktsar constituency. He said that the supporters of respondent No. 3
had convened a meeting at Khokhar at about 12 noon about 6 or 7 days prior to
the date of poll. The meeting was held in the village Gurdwara.
Respondent No. 3 accompanied by Shri Baldev
Singh Sibia and 4/5 other persons had come to attend the meeting. Respondent
No. 3 addressed the meeting first. At the outset he tendered an apology to the
audience and said that he had promised to bring Shri Prakash Singh Badal to
address this meeting but he could not come as he was busy with the election
work in other constituencies. Respondent No. 3 showed a paper and described it
as a Hukamnama issued by the Akal Takht. He stated that he had been given a
ticket because he was a Gur Sikh and it was the "religious duty of the
Sikhs to vote for him", and he also showed some back issues of Akali Times
and said that most of the things were written in these papers but he wanted to
give a gist of the same. He stated that any Sikh who cast his vote in favour of
Indira Congress did not deserve to be called a Sikh. He also said that right to
vote was a sacred trust in favour of the panth and whoever exercised this right
against the order issued by the Panth, would he regarded as a traitor to the
panth. He mentioned the Gurus. In cross-examination he stated that he owned
thirty acres of land and his village 187 was at a distance of two miles from
village Khokhar.
According to him 10 or 12 Hindus were also
present in the meeting. He said that A he did not know if it was an offense to
ask people to vote on the ground of religion.
The next witness was P. W. 18, Malkiat Singh.
His village also fell in Muktsar constituency and he spoke that in the Gurdwara
of village Khokhar, meeting was held at about 12 noon. He also corroborated
that respondent No. 3 and Shri Baldev Singh Sibia addressed this meeting. There
was corroboration of the evidence of this witness. In cross- examination there
was not much damage done to his testimony.
The next witness was P. W. 19, Guranditta
Singh. He spoke of a meeting about 5/6 days prior to the date of poll and the
meeting was held at about noon time in the village Gurdwara n village Khokhar.
Respondent No. 3 and Shri Baldev Singh Sibia addressed the meeting. He more or
less reiterated what was stated by the other witnesses. In cross- examination
he stated that about 10 to 15 Hindus were present. He further stated that 2 or
3 days after the meeting, the appellant had visited his village and solicited
his vote but he had replied that he had made a tour of 2/3 villages along with
panthak candidate and for that reason he was not in a position to promise to cast
his vote for him.
The witness for respondent No. 3 was one R.
W. 6. She was Smt. Gurmit Kaur wife of Malkiat Singh. She denied that any
meeting was held in their village and that she was always in the village
throughout the election.
Learned Judge found it difficult to rely on
his evidence. We do not see any intrinsic improbability in accepting his
testimony especially in the absence of good rebuttal evidence.
The next village is village Harika Kalan
about which P. W. 19 Guranditta Singh gave evidence. To prove meeting at Harika
Kalan statement of three witnesses Guranditta Singh, P. W. 19, Sant Singh s/o
Arjan Singh, P. W. 20 and Gurdev Singh s/o Bhajan SIngh, P. W. 21 were relied.
The latter two witnesses belonged to village Harika Kalan. The first one making
the statement regarding the meeting at Harika Kalan as well as meeting at
village Khokhar. P. W. 20 deposed that an election meeting was held by the
supporters of res 188 -pondent No. 3 in village Harika Kalan about 5/6 days
before the date of polls at village Gurdwara. Similar statement was made by
Makhan Singh, P. W. 17 regarding the meeting at Khokhar. In cross-examination,
he admitted that he did not meet the petitioner till the date of his evidence
and no one approached him to find out as to whether he attended the meeting or
not. The respondent No.3 called one Balla Singh, Sarpanch resident of Harika
Kalan, P. W. S and Smt. Gurmit Kaur resident of Khokhar P. W. 6. Both the
witness were interested in him.
Learned Judge did not find it possible to
accept their testimony.
In a matter of this nature, the evidence
naturally is mostly oral. Therefore specially where the charge is a grave one;
namely corrupt practice which if proved would disentitle the candidate to
contest the election for some time to come, the Courts must proceed with
caution. An election once held ought not to be treated in a light- hearted
manner and defeated candidate should not get away with it by filing election
petition. See in this connection the observations of Krishan Iyer, J. in Rahim
Khan v. Khurshid ,Ahmed & Ors.( See also the decision in the case of Ch.
Razik Ram v. Ch. J. S. Chauhan & ors.(2) Reference was also made to the
opinion of this Court in Kanhaiyalal v. Mannalal & Ors(3). and M. Narayana
Rao v. G. Venkata Reddy & ors(4).
Taking into account the totality of the
evidence in the back ground of the fact that some communications from Akal
Takht call it Hukamnama or any other name were issued and the issues of
editorials of Akali Times, which were mentioned by Shri Parkash Singh Badal as
stated by the witness on behalf of the appellant and which is not denied by
Shri Parkash Singh Badal, we are of the opinion that in this case appeal in the
name of religion was made on behalf of respondent No. 3. Though some facts
stated in the oral evidence about the meetings had not been stated in the
petition but when evidence were tendered and were not shaken in
cross-examination and the versions have a ring of truth in the back (1) [1975]
I S C.R. 643.
(2) A. I R.1975 S.C. 567.
(3) 11976] 3 S. C. R. 808.
(4) I.S.C.R. 490.
189 ground of other facts, we are of the
opinion that the case of appeal to religion by the respondent No. 3 has been
proved in this case. A This conclusion becomes irresistible in view of absence
of any express denial by Shri Parkash Singh Badal and in the absence of any
explanation for not calling him as a witness on this point. Several decision of
this Court have laid down various tests to determine the standard of proof
required to establish corrupt practice.
While insisting on standard of strict proof,
the Court should not extend or stretch this doctrine to such an extreme extent
as to make it well. nigh impossible to prove an allegation of corrupt practice.
Such an approach would defeat and frustrate the very laudable and sacrosanct
object of the Act in maintaining purity of the electoral process (See the
observations in the case of Ram Sharan Yadav v. Thakur Muneshwar Nath Singh and
ors. (Civil Appeal No. 892 (NCE) of 1980).
In the premises the respondent No. 3 was
guilty of corrupt practice as mentioned in sub-section (3) of section 123 of
the Act. In the result his election is set aside and the seat is declared
vacant. The findings of this Court about the corrupt practice of respondents
No. 3 be forwarded to the President of India for appropriate action under
section 8A of the Act.
A point was made about the petition being not
properly verified inasmuch as the source of information had not been mentioned.
On behalf of the appellant, counsel drew our attention to section 83 of the
Representation of the People Act, 1951. This point was examined by a Division
Bench of the Calcutta High Court in the case of Padmabati Dasi v. Rasik Lal
Dhar.(1) I am of the opinion that a proper reading of that decision would
indicate that for a proper verification of an affidavit or a petition based on
certain information, the source should be indicated but I do not wish to
examine this question any further because no objection at the initial stage was
taken and specially in view of this Court's decision in Ziyauddin Burhanuddin
Bukhari v. Brijmohan Ramdas Mehra and ors. (supra) and in Hardwari Lal v.
Kanwal Singh (2) on an appropriate occasion, this question may require a fuller
consideration.
The decision of the learned Trial Judge is
set aside and the appeal is allowed. Respondent No. 3 will pay the costs of
this appeal.
A.P.J. Appeal allowed.
(1) I.L.R. XXXVII Calcutta, 259 at 260.
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