ion No 1 of 1967
Election Petition under Presidential and Vice Presidential Elections Act 1952
RVS Mani for the petitioners
MC Setalvad JM Mukhi and AS Nambiar for respondent No 1
E Udayaratnam for respondent No 6
Janardan Sharma for respondent NO 10
OP Varma for respondent No 12
CC Patel and MV Goswami for respondent No 14
Bhimsena Rao and RA Gupta for respondent No 17
CK Daphtary Attorney General RH Dhebar and SP Nayar for Election Petition of India and Returning Officer
Presidential Election New Delhi
CK Daphtary Attorney General NS Bindra and RH Dhebar for Attorney General for India
The Judgment of the Court was delivered by Wanchoo CJ
The presidential election in India was held in May 1967
In that election 17 candidates were nominated
The result of the election was declared on May 9 1967 and Dr Zakir Husain was declared elected
The present petition is against 137 The election of Dr Zakir Husain as President and has been filed under article 71 of the Constitution read with the Presidential and Vice Presidential Elections Act No 31 1952 hereinafter referred to as the Act by 13 members of Parliament
The attack on he validity of the election of Dr Zakir Husain has been made on two grounds
The first ground is that no oath was taken by Dr zakir Husain before his nomination as required by article 84 read with article 58 of the Constitution
In consequence he was not eligible for election as President and his election is liable to be set aside
Curiously enough however the petitioners pray for a declaration that Sri Subba Rao who received the second highest number of votes should be declared elected though he like Dr Zakir Husain also did not take the oath before his nomination
The second ground on which the election of Dr Zakir Husain s challenged is that the result of the election has been materially affected by reason of undue influence thereat and in this connection reliance is placed on four matters to which reference will be made later
The petition has been opposed on behalf of Dr Zakir Husain
It has been urged in reply that no oath was necessary under article 84 read with article 58 of the Constitution and as such he was eligible to stand
It has also been said on behalf of Dr Zakir Husain that in case his nomination is invalid on that ground Sri Subba Rao s nomination is equally invalid as he also did not take the oath
As to undue influence it is urged that no undue influence was exercised nor was the result of the election materially affected by any exercise of undue influence
Of the four matters urged in support of the attack on the ground of undue influence the truth of one of them was not accepted
But it is urged in the alternative that even accepting all that has been said by the petitioners in support of their case of undue influence the allegations made by the petitioners do not in law amount to
undue influence and therefore there could be no question of the result of the election being materially affected by the exercise of any undue influence
On the pleading of the parties the following issues were framed  1
Whether the acceptance of the nomination papers of respondents Nos 1 to 17 by the Returning Officer was illegal and contrary to law for the reason that Respondents Nos 1 to 17 did not subscribe to the oath required under Article 84a of the Constitution read with Article 581c thereof 2
Whether the result of the election has been materially affected L10SupCI168 10 138 3
Whether the acts and conduct alleged in para 12 of the petition and set out under heads A B C and D thereof amount to undue influence within the meaning of section 181b of the Act
Whether the allegations made under heads A B C and D in para 12 of the petition in so far as they are not admitted arc true 5
Whether the petition is entitled to any relief and if so to what relief
It will be seen that issues Nos 1 and 3 raise pure questions of law
We made it clear to learned counsel that we would try this petition in two parts
We shall first deal with the two issues of law and then if necessary set the petition down for further hearing on evidence
We also indicated that if issue No 1 is decided in favour of the petitioners the election would have to be set aside and then there would be no question of any further hearing on evidence
We further indicated that if issue No 3 is decided in favour of 1he petitioners the petition would have to be set down for further hearing on evidence on matters of fact which were in dispute
Lastly we indicated that if both these issues were decided against the petitioners the petition would fail and it would not be necessary then to set it down for further hearing on evidence
We propose now to consider the two issues of law
Issue No 1
In order to decide this issue we have to see what the Constitution provided before the Constitution Sixteenth Amendment Act 1963 hereinafter referred to as the Amendment Act
This Act was passed on October 5
Before that amendment article 58 1 with which we are concerned in the present petition was in these terms  1 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 which is also relevant read thus A person shall not be qualified to be chosen to fill a seat in Parliament unless he a is a citizen of India b is inhe case of d seat in the Council of States not less than thirty years of age and in the ease 139 of the House of the People not less than twenty five years of age c possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament
 The Representation of the People Act No 43 of 1951 provided some qualifications for membership of the House of the People by section 4
Besides that article 102 of the Constitution provided for certain disqualifications for membership of either House of Parliament and thus indirectly provided for qualifications necessary for being a member of either House of Parliament and these were 1 that the person should not hold any office of profit under the Government of India or the Government of any State other than an office declared by Parliament by law not to disqualify its holders 2 the person should not be of unsound mind and should not have been so declared by a competent court 3 the person should not be an undischarged insolvent 4 the person should not have voluntarily acquired the citizenship of a foreign State or be under any acknowledgement of allegiance or adherence to a foreign State and 5 the person should not be disqualified by or trader any law made by Parliament
A perusal of these provisions show that there was no requirement of taking an oath at the time of nomination by the presidential candidate in article 58
Nor was there any requirement of taking any oath at the time of nomination by a candidate for election to the House of the People under article 84
There were however provisions in the Constitution for taking an oath after election
The oath of the President and its form was provided in article 60 while the oath for a member of the House of the People after election was provided in Schedule III to the Constitution
which a member of Parliament had to take before taking his scat in the House of the People or the Council of States as the case may be
It is not disputed on behalf of the petitioners that this was the undoubted position in law before the Amendment Act
Then came the Amendment Act which came into force from October 5 1963
By that amendment no change was made in article 58
which stood as it was a change was however made in Cl
a of article 84 which after the Amendment Act read thus 84
Qualification for membership of Parliament A person shall not be qualified to be chosen to fill a seat in Parliament unless he a is a citizen of India and makes and subscribes before some person authorised in that behalf by the Elec 140 tion Commission an oath or affirmation according to the form set out for the purposes in the Third Schedule The Third Schedule was also amended and provided the following form of oath to be taken by a member of Parliament who stands for election to Parliament namely I A B having been nominated as a candidate to fill a seat in the Council of States do House of the People swear in the name of God that I will bear true solemnly affirm faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India
 At the same time amendment was made in the form of oath to be taken after election the change being that the words I will uphold the sovereignty and integrity of India were added to the already existing oath to be taken by a member of Parliament after his election before he took his seat in the House of the People or the Council of States
The contention on behalf of the petitioners is that because of this change in cl
a of article 84 by which it became necessary to take
oath for a person standing for election to either House of Parliament in the form prescribed in the Third SChedule a person standing for election as President had also to take a similar oath because article 581c requires that a person to be eligible for election as President must be qualified for election as a member of the House of the People
It is urged that no one is qualified after the amendment of cl
a of article 84 for election as a member of the House of the People unless he makes and subscribes an oath in the form set out for the purpose in the Third Schedule and therefore this provision applied to a person standing for election as President for without such oath he would not be qualified to stand for election to the House of the People
The argument looks attractive prima facie but must in our opinion be rejected
The qualifications for eligibility to stand for election as President are to be found in article 581
The main reliance on behalf of the petitioners is placed on cl
c of article 58 1 which lays down that a candidate standing for election as President has to be qualified for election as member of the House of the People
A comparison however of article 58 with article 84 as it stood before amendment shows that el
a of article corresponded to cl
a of article 581 as both provided that the respective candidates should be citizens of India
It was therefore not necessary to go to cI a of article 84 for the purpose of finding out whether a person was eligible for election as President for 141 the purpose of citizenship for that part of cl
a of article 84 was specifically provided for in cl
a of article 58 i
Similarly cl
b of article 84 corresponded to cl
b of article 581 with this difference that it provided a special qualification as to age and therefore one would not have to go to cl
b of article 84 for the purpose of finding out the qualification as to age Cl
c of article 38 1 clearly corresponded to cl
c of article 84 and reading them together it would follow that a person standing for election as President would require such qualifications as may be prescribed in that behalf by or under any law made by Parliament
Further as cl
c of article 581 lays down that a person standing for presidential election has to be qualified for membership of the House of the People article 102 which lays down disqualifications for members of Parliament would also be attracted except in so far as there is a special provision contained in article 582
Thus cl
c of article 581 would bring in such qualifications for members of the House of the People as may be prescribed by law by Parliament as required by article 84c
It will by its own force bring in article 102 of the Constitution for that Article lays down certain disqualifications which a presidential candidate must not have for he has to be eligible for election as a member of the House of the People
But it is clear to us that what is provided in clause a and b of article 581 must be taken from there and we need not travel to cls
a and b of article 84 in the matter of citizenship and of age of the presidential candidate
Clauses a and b of article 581 having made a specific provision in that behalf in our opinion exclude cls
a and b of article 84
This exclusion was there before the Amendment Act and we are of opinion that there is nothing in the Amendment Act which makes
any difference to that position
The Sixteenth Amendment was introduced on the recommendation of the Committee on National Integration and Regionalism which was greatly concerned over the preservation and maintenance of the integrity and sovereignty of the Union
It therefore recommended that every candidate for the membership of a State legislature or Parliament should pledge himself to uphold the Constitution and to preserve the integrity and sovereignty of the Union and for that forms of oath in the Third Schedule to the Constitution should be suitably amended
It also recommended that every candidate for the membership of Parliament or State Legislature Union and State Ministers Members of Parliament and State Legislatures Judges of the Supreme Court and High Court and the Comptroller and Auditor General of India should take oath to
uphold the sovereignty and integrity of India
In consequence of these recommendations the sixteenth amendment was made and article 84 a as well as article 173 which provides for qualifications for membership of State legislature were suitably 142 amended
Further two new forms were added in the Third Schedule one relating to oath to be taken by candidates for elector to Parliament and the other relating to oath to be taken by candidates for election to State legislatures
Further other forms of oath in the Third Schedule were also amended by adding therein the words I will uphold the sovereignty and integrity of India
 Now if the intention of Parliament was that an oath similar in form to the oath to be taken by persons standing for election 10 Parliament had to be taken by persons standing for election to the office of the President there is no reason why a similar amendment was not made in article 581a
Further if the intention of Parliament was that a presidential candidate should also take an oath before standing for election the form of oath should also have been prescribed either in the Third Schedule or by amendment of article 60 which provides for oath by a person elected as President before he takes his office
But we find that no change was made either in article 581a or in article 60 or in the Third Schedule prescribing the form of oath to be taken by the presidential candidate before he could stand for election
This to our mind is the clearest indication that Parliament did not intend when making the Amendment Act that an oath similar to the oath taken by a candidate standing for election to Parliament had to be taken by a candidate standing for election to the office of the President
So there is no reason to import the provision of article 84a as it stood after the Amendment Act into article 581a which stood unamended
That is one reason why we are of opinion that so far as the election to the office of the President is concerned the candidate standing for the same has not to take any oath before becoming eligible for election as President
Another reason which leads to the same conclusion is this
We have already indicated that no change was made in article 60 by introducing the form of oath to be taken by a person standing for election as President nor was there any change made m the Third Schedule by the introduction of a form of oath to be taken by a person standing for election as President
In the absence of such a form we fail to see how an oath would be necessary before a person could stand for election
as President
It is not as if a person standing for election as a member of Parliament can take any oath that he likes or that may be administered to him
The particular oath which a person standing for election as a member of Parliament has to take has been prescribed in the Third Schedule to the Constitution and it is only that oath which such a person has to take
However no form of oath is prescribed for a person standing for election as President anywhere in the Constitution and in the absence of such form it is impossible to hold that taking of oath before standing for election as President is a 143 necessary ingredient of eligibility for such election
Further a comparison of the form of oath under article 60 for the President with form III B of the Third Schedule which prescribes the oath for a member of Parliament before he takes his seat shows that even after election the President is not required to swear that he will uphold the sovereignty and integrity of India
The oath he takes is to preserve protect and defend the Constitution and that he will devote himself to the service and well being of the people of India
Clearly therefore the form of oath introduced by the sixteenth amendment for persons standing for election to Parliament and even after election was not considered suitable for a person standing for election as President or elected as President and that is why we find no form prescribed by Parliament
It has been urged on behalf of the petitioners that though no form of oath may be prescribed it was open to the Election Commission to prescribe an oath by making changes mutatis mutandis in form III A of the Third Schedule relating to candidates for election to Parliament and that it was the duty of the Election Commission to appoint somebody to administer the oath in the form to be evolved by him by changing form III A in the Third Schedule mutatis mutandis
Reliance in this connection has been placed on article 324 of the Constitution
We are of opinion that there is no force in this contention
Article 324 inter alia provides for the superintendence direction and control of the preparation of the electoral rolls for and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President
These words do not in our opinion give any power to the Election Commission to introduce a form of oath to be taken by a candidate for election whether it be for election as President or as a member of Parliament or of a State legislature
If an oath has to be taken by anysuch person it has to be provided by law and the form thereof has also to be prescribed by law we are using the word law in its broadest sense including constitutional provisions and that is what was done by the Sixteenth Amendment so far as election to Parliament and State legislatures was concerned
But as already observed Parliament did not think it fit when it brought in the Amendment Act to make any change in article 58 1 a or to introduce a form in article 60 or in the Third Schedule to the Constitution with reference to candidates standing for election as President
If Parliament did not choose to do so the ElectionCommission cannot do so under the power it has been given under article 324 to superintendent direct and control the preparation of the electoral rolls and the conduct of all elections
That power is very different from the power to prescribe an oath before a candidate can stand for election
Such prescription can only be by law as indicated above
The Amendment Act having not made any such provision with 144 respect to those standing for election to the office of the President it cannot be open to the Election Commission to prescribe a form of oath for such persons by changing form III A mutatis mutandis
Such power cannot be spelt out of article 324 on which reliance has been placed on behalf of the petitioners
It follows therefore that no form whatsoever having been prescribed by Parliament when it made the sixteenth amendment for taking an oath by a presidential candidate article 84 a when it prescribed for taking an oath for candidates for election to the
House of the People has no application to candidates standing for election to Presidentship
So far as these candidates are concerned we must look to article 58 1 a only and need not go to article 84a
Another reason for coming to the same conclusion is that when article 58 1 c lays down that a person standing for election as President has to be qualified for election as a member of the House of the People it only brings in qualifications other than those which are specifically mentioned in article 58 1 itself
Now specific qualifications provided in article 58 1 are that a candidate for presidential election has to be a citizen of India and he must have completed the age of 35 years
So far as these qualifications are concerned we need not go anywhere else in order to search for eligibility to contest election as President
For example the specific qualification in cl
b of article 581 is that the person concerned should have completed the age of 35 years
On the other Hand el
b of article 84 lays down the age of 25 years for membership of the House of the People
Therefore when one has to look for the qualification of age one must only go to article 58 1 b for the purpose of presidential election and need not look elsewhere
What is specifically provided for by article 58 1 must be accepted as it stands and no addition can be made to that provision and no subtraction can be made therefrom
It will be seen therefore that though there may be some qualifications which may be necessary for election to the House of the People they need not necessarily apply to the election for the office of the President where there is a specific provision in article 58 1 itself
We are therefore clearly of opinion that in view of the specific provision in article 58 a and b we cannot and should not apply clauses a and b of article 84 to persons standing for election as President
This conclusion is reinforced if we look at article 58 2 and compare it with article 102 1 a
It is clear that when there is a specific provision with respect to an office of profit in article 58 2 it is that provision which will apply and not article 102 1 a
We therefore hold that the acceptance of the nomination papers of respondents 1 to 17 by the Returning Officer was neither illegal nor contrary to law on the ground that these respondents did not subscribe to an oath under article 84 a read with article 581c
The issue is decided against the petitioners
145 ISSUE No 3
The petitioners rely on four allegations on the question of undue influence
Before we deal with those allegations it is necessary to understand what undue influence is in the context of the Act
Section 18 1  b lays down that if the result of the election has been materially affected by reason of undue influence at the election committed by any person other than the returned candidate or a person acting in connivance with the returned candidate the election will be liable to be declared void
Sub section 2 of section 18 lays down that undue influence would have the same meaning as in Chapter IX A of the Indian Penal Code
Section 171 C of the Indian Penal Code defines what undue influence is in these terms  1 Whoever 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 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
 It will be seen from the above definition that the gist of undue influence at an election consists in voluntary interference or attempt at interference with the free exercise of any electoral right
Any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right would amount to undue influence
But even though the definition in sub section
1 of section 171 C is wide in terms it cannot take in mere canvassing in favour of a candidate at an election
If that were so it would be impossible to run democratic elections
Further sub section
2ors
171 C shows what the nature of undue influence is though of course it does not cut down the generality of the provisions contained in sub section 1
Where any threat is
held out to any candidate or voter or any person in whom a candidate or voter is interested and 146 the threat is of injury of any kind that would amount to voluntary interference or attempt at interference with the free exercise of electoral right and would be undue influence
Again where a person 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 that would also amount to voluntary interference with the free exercise of the electoral right and would be undue influence
What is contained in sub section
2 of section 1771 C is merely illustrative
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 171 C shows the mere exercise of a legal right without intent to interfere with an electoral right would not be undue influence
We may in this connection refer to section 1232 of the Representation of the People Act 1951 which also defines undue influence
The definition there is more or less in the same language as in section 171 C of the Indian Penal Code except that the words direct or indirect have been added to indicate the nature of interference
It will be seen that if anything the definition of undue influence in the Representation of the People Act may be wider
It will therefore be useful to refer to cases under the election law to see how election tribunals have looked at the matter while considering the scope of the words undue influence
The earliest case to which reference may be made is RB Surendra Narayan Sinha vs Amulyadhone Roy  43 Others1 There the question raised before the Election Tribunal was whether by issuing a whip on the day of election requesting members to cast their preferences in a particular order the leader of a Party who was also the Chief Minister could be said to have exercised undue influence
The Election Tribunal held that the leader the party was entitled to use his influence as a leader and he could not be deprived of that right because he happened to
be a minister
The issue of a whip of that kind was thus held to be no more than canvassing in
favour of the candidates of the party to which the leader or the Chief Minister belonged
In Linge Gowda vs Shivananjappa2 the Election Tribunal held that a leader of a political party was entitled to declare to the public the policy of the party and ask the electorate to vote for his party without interfering with any electoral right and such declarations on his part would not amount to undue influence under 1 1940 Indian Election Cases by Sen and Poddar Case No XXX at p 188
2 1953 VI ELR 288
147 the Representation of the People Act
The fact of that such a leader happened to be a Minister or Chief Minister of the State would make no difference
It was further observed in that case that the law cannot strike at the root of due influence and under the law of election only undue influence is forbidden and the leaders of  a party will be deemed to exercise their due influence if they ask the electorate to vote for their party candidate even if they happen to be Ministers In Amirchand vs Surendra Lal Jha1 it was held by the Election Tribunal that Ministers were prominent members
of their party and in that capacity they were entitled to address meetings and to tell people what their party had done and what its programme was and to ask them to vote for the candidate set up by their party and such action of the Ministers could not be held amount to exercising undue influence
It merely amounted to canvassing by the Ministers in favour of candidates belonging to their party
In Mast Ram vs
section Iqbal Singh2 it was held by the Election Tribunal that the legitimate exercise of influence by a political party or an association should not be confused with undUe influence
It was further held that Ministers in their capacity as members of their party are entitled to address meetings and to tell people what their party had done and what its
programme was and to ask them to vote for the candidate set up by their party
Such action of the Ministers cannot be held to amount to exercising undue influence  
It was further held  that if  a political  party passes a resolution of support to a candidate and asks its members to vote for him it will be only a legitimate exercise of influence
In Radhakrishna Shukla vs Tara Chand Maheshwar3 the Election Tribunal held that even where Ministers conducting an electioneering campaign promised people who put their grievances before them during the campaign generally to redress their grievances it could not be held that there was exercise of undue influence and their promise merely amounted to a promise of public action which would not be for the benefit of merely those who voted for candidates of their party but for the public as a whole
The next case to which reference may be made is N Sankara Reddi vs Yashoda Reddi4
In that case the Election Tribunal held that a political party is entitled to issue a manifesto to the  voters requesting them to vote only for the candidate set up by the party
The fact that the leader of the Congress Legislature Party who was also the Chief Minister of the State had written 11954 X E L R 57
2 1955 XII ELR34 31956 XII ELR 378
4 1957 XIII ELR 34
148 letters to the members of the Congress Party to support the candidates set up by the party would not amount to undue influence within section 1232 of the Representation of the People Act
 It was added that it was only where a Minister abused his position for furthering the prospects of the candidate belonging to his party that undue influence might arise but where a leader merely used his influence in the form of canvassing for candidates of his party there would be no question of undue influence
In Dr YS Parmar vs Hira Singh Pal1 the Judicial Commissioner of Himachal Pradesh held that a leader of a political party is entitled to
declare to the public the policy of the party and ask the electorate to vote for his party without interfering with any electoral right and such declarations on his part would not amount to undue influence under section 1232 of the Representation
of the People Act
 In Triloki Singh vs Shivrajwati Nehru2 it was held by the Election Tribunal that the right to canvass must be conceded to Ministers as leaders of a political party Just as they have a right to vote and to stand as a candidate they also have a right to canvass for themselves and for the other candidates set up by their party
 It was further held that though a Minister occupied a high position and commanded great influence if he only solicited votes and tried to persuade the electors to vote for a candidate of his party and asked them not to vote for any other candidate or to remain neutral and did nothing more he could not be said to interfere with the free exercise of the electoral right of the voters
The last case to which reference may be made is Jayalakshmi Devamma vs Janardhan Reddi3
In that case the Andhra Pradesh High Court held that in a democratic set up where candidates contested elections on the basis of their affiliation to a particular political party there was nothing intrinsically wrong in Ministers canvassing support for their party candidates
It was further held that a Minister merely by reason of his office did not suffer from any disability in this behalf and had the same rights and obligations as any other citizen in the matter of canvassing
It was also held that in their capacity as leaders of their party
they had to explain to the electors the policies and programmes which they sought to enforce and one way of doing that was to ask the electors to vote for those who were pledged to support them and their policies
It will be seen from the above review of the cases relating to undue influence that it has been consistently held in this country that it is open to Ministers to canvass for candidates of their party 1 1958 16 ELR4 2 1958 XVIELR 234
3 1959 XVII ELR 302 149 standing for election
Such canvassing does not amount to undue influence but is proper use of the Minister s right to ask the public to support candidates belonging to the Minister s party
It is only where a Minister abuses
his position as such and goes beyond merely asking for support for candidates belonging to his party that a question of undue influence may arise
But so long as the Minister only asks the electors to vote for a particular candidate belonging to his party and puts forward before the public the merits of his candidate it cannot be said that by merely making such request to the electorate the Minister
exercises undue influence
The fact that the Minister s request was addressed in the form of what is called a whip is also
immaterial so long as it is clear that there  is no compulsion on the electorate to vote in the manner indicated
It is in the light of these principles that we have to see whether the four allegations made in this case assuming them to be correct make out a case of undue influence
The first allegation is that Shrimati Indira Gandhi the Prime Minister addressed a letter to all the electors in which she commended Dr Zakir Husain and requested the electors to vote for him
A copy of that letter has been produced and we have been taken through it
In our opinion there is nothing in that letter which may even remotely amount to undue influence
Most of the letter is concerned with commending the qualities of Dr Zakir Husain and it ends by saying that Dr Zakir Husain s long and meritorious service in the cause of national freedom and national re construction after Independence makes him a candidate richly deserving universal support
It has been urged that the Prime Minister is a person of great influence and therefore Shrimati Indira Gandhi should not have written this letter because she was Prime Minister and the mere fact that she wrote this letter commending Dr Zakir Husain s election amounted to undue influence ie interference with the free exercise of the electoral right
We can not agree with this contention
Shrimati Indira Gandhi is certainly the Prime Minister but she is also one of the leaders of the party to which Dr Zakir Husain belonged
As a leader of party she was entitled to ask the electors to vote for Dr Zakir Husain and the fact that she is the Prime Minister makes no difference to her right to make an appeal of this nature
It is said that the office of the President is a no party office and therefore an appeal of this nature should not have been made and must amount to undue influence
It is true that the office of the President is not a party office meaning thereby that after his election the President is no longer a party man
But that cannot take away the fact that in a democratic system like ours persons who stand for election are candidates sponsored by parties for without such support no one would have a chance of being elected for the
electors are mostly members of one party or other
We have given 150 our earnest consideration to the letter written by Shrimati Indira Gandhi and have come to the conclusion that there is nothing in that letter which can be said to be improper or which can even remotely amount to interference with the free exercise of the electoral rights
It cannot therefore be said that Shrimati Indira Gandhi even though she is the Prime Minister exercised any undue influence in this presidential election
The next allegation is based on two letters written by Sri Ram Subhag Singh
In these letters
Sri Ram Subhag Singh signed himself as Chief Whip and they were addressed to all members of the Congress Party in Parliament
The fact that he signed the letters as Chief Whip is in our opinion of no consequence even if he had not done so all members of the congress party in Parliament must be knowing that he was the Chief Whip
Just as a Minister has a right to canvass for support so has in our opinion the Chief Whip
In the first letter he pointed out that the Presidential and Vice Presidential elections were to be held on May 6 1967
He also pointed out that members of Parliament could vote for the presidential election at New Delhi or at State capitals but they had to come to Delhi in connection with the election of the Vice President
He therefore added that as the two elections were to be held on the same day and voting for the Vice Presidential election could only be at Delhi every member of the party must be present in Delhi to participate in the elections
He finally requested the members of his party to reach New Delhi by May 4 1967 and contact him on reaching
New Delhi
This letter merely explains to members of his party the situation with respect to the two elections which were to be held simultaneously and requested the members to come to Delhi as otherwise they could not vote in the Vice Presidential election
The fact that he asked the members to contact him after reaching Delhi could only be to know who had come and who had not and cannot give rise inference of undue influence from that fact alone
In the second letter Sri Ram Subhag Singh pointed out that the election to the office of the President would be in accordance with the system of proportional representation by means of single transferable vote
He also invited the attention of the members of the Congress Party in Parliament to r 19 of the Election Rules
He then went on to say that it was their desire ie of the congress party that Dr Zakir Husain should be returned with a thumping majority
He therefore requested the members to place figure 1  opposite the name of Dr Zakir Husain
He also advised them not to mark the second or any other preference in favour of any other candidate
As we read this letter we only find in it a request to members of the party to vote for Dr Zakir Husain There is nothing in that letter to show that undue influence was being exercised thereby
The two letters read together merely show 151 that Sri Ram Subhag Singh who happened to be the Chief Whip of the congress party was canvassing in favour of Dr Zakir Husain
It is however urged that his advice to the members not to mark their second or any other preference in favour of any other candidate amounted to interference with the free exercise of their electoral right
We cannot agree with this contention
Sri Ram Subhag Singh asked the members of his party to give the first preference to Dr Zakir Husain
He also asked them not to mark their second or any other preference and that is a method to ensure that the candidate to whom the first preference is given should be in a strong position in case there is not a majority in the first counting
In the present election there was apparently a majority in the first counting and therefore the marking of the second or any other preference was immaterial
Apart from it
we see nothing improper in members of the party being told in the course of canvassing that it would be better if they only marked their first preference and no other preference in a system where voting is by single transferable vote
Such a request or advice does not in our opinion interfere with the free exercise of their electoral right for the electors still would be free to do what they desired in spite of the advice
We cannot agree
after going through the two letters written by Sri Ram Subhag Singh that there was any interference with the exercise of the electoral right by the electors
The third allegation is that the Prime Minister had deputed certain senior members of her cabinet to the various States to make doubly certain that Dr Zakir Husain was elected
In consequence Shri Fakhruddin Ali Ahmed was sent to Assam Shri Y B Chavan to Bombay Sri Jagjivan Ram to Bihar Sri IK Gujral to Calcutta and Sri Dinesh Singh to Uttar Pradesh
It is further urged that sending of the Ministers to various States was to influence the members of the electoral college there to vote for Dr Zakir Husain or attempt to do so
Such action it is urged
would amount to undue influence
We cannot agree with this contention
Assuming that these Ministers were asked to go to various States it was obviously to canvass support for Dr Zakir Husain so that he may be certain to be elected
Even assuming that these Ministers canvassed support for Dr Zakir Husain in various State capitals their action cannot be said to amount to undue influence for all that they can be said to have done was to canvass support for Dr Zakir Husain and mere canvassing cannot possibly be held to be undue influence
There is nothing in the allegation in para 12 C of the petition to show that there was any interference with the free exercise of electoral right by the electors
even if these Ministers were sent to
the various State capitals to canvass support for Dr Zakir Husain red did so
Mere canvassing of support for a candidate can never amount to undue 152 influence and all that para 12C shows is that there was mere
canvassing in favour of Dr Zakir Husain
No case of undue influence can be made out on the basis of the allegations contained in para 12C of the petition
The last allegation in support of the case of undue influence is that the Chief Minister of Maharashtra had briefed members of the Legislative Assembly on May 5 1967 on how to vote and whom to vote for
It is urged that even if the leader of the party in the Maharashtra legislature could indicate the manner of voting the members of his party he could not indicate to them whom they were to vote for as that interfered with the free exercise of their electoral right
It is said that such a request amounted to a command from a person in authority like the Chief Minister and would be exercise of undue influence
We are of opinion that there is no substance in this contention either
There can possibly be no objection if the leader of the party indicates to the members of his party how to vote in order to ensure that votes may not become invalid for want of knowledge of the procedure of voting
Further if the leader of the party indicates to members of his party for whom to vote he is merely canvassing with his own party men to support the candidate of the party
The mere fact that the person who canvasses is a Chief Minister does not mean that he is exercising undue influence in the sense of interfering with the free exercise of the electoral right
Once canvassing is permissible and we have no doubt that in a democratic set up where  parties put up candidates for election it is not only permissible but necessary it follows that if a leader of the party asks members of his party for whom
to vote he is merely canvassing
The voting is after all secret and every elector is free to vote for whomsoever he likes even though he may have been asked by the leader to vote for a particular candidate
There is nothing in para 12 D of the petition to suggest that anything improper was
done by the Chief Minister of Maharashtra which could give rise to an inference that the free exercise of the electoral right was being interfered with
On a careful consideration of paragraphs 12A to 12D of the petition we have come to the conclusion that there is nothing in those paragraphs which even remotely suggests that there was any undue influence exercised by anybody in connection with the Presidential election of May 6 1967
Our finding on the issue in question is that the acts
and conduct alleged in paragraph 12 of the petition and set out in sub paras A to D thereof do not amount to undue influence within the meaning of section 181 b of the Act
The issue is decided against the petitioners
As we have indicated already if both these issues of law are decided against the petitioners as we do decide them the petition 153 must fail and it is unnecessary to set it down for hearing on evidence with respect to other issues
The petition is hereby dismissed but in the circumstances of the case we pass no order as to costs
YP Petition dismissed


Summary:
As a result of the Presidential election held in May 1967 respondent No 1 was declared elected
The petitioners challenged the election on the following two grounds namely i article 581c required that a person to be eligible for election as President must be qualified for election as a member of the House of People
After the Sixteenth Amendment under article 84a it was necessary for a person standing for election to either House of Parliament to take an oath in the form prescribed in the Third Schedule
Therefore a person standing for election as President had also to take a similar oath since the respondent had not taken the oath he was not eligible for election
ii As a the Prime Minister addressed a letter to all electors commending respondent No 1 and requesting them to vote for him b the Prime
Minister deputed Ministers 1 various State Capitals to make doubly certain that respondent No 1 was elected c a Minister who was also the chief whip of the Congress party wrote two letters to all members of his party in Parliament and signed them as Chief Whip explaining the situation with respect to the election and requesting them to come to Delhi and contact him and also requesting them to give the first preference to respondent No 1 and not to mark the second or any other preference in favour of the candidates and d the Chief Minister of Maharashtra had briefed members of the Legislative Assembly as to how and for whom to vote the result of the election has materially been affected by undue influence
HELD The petition must be dismissed
i The candidate standing for election to the office of the President had not to take any oath before becoming eligible for election as President
A comparison of article 58 with article 84 as it stood before the amendment shows that el
a of article 84 corresponded to el
a of article 581 as both provided that the respective candidates should be citizens of India
It was therefore not necessary to go to cl
a of article 84 for the purpose of finding out whether a person woks eligible for election as President for the purpose of citizenship for that part of el
a of article 84 was specifically provided for in el
a of article 581
Similarly el
b of article 84 corresponded to el
b of article 581
with this difference that it provided a special qualification as to age and therefore 134 one would not have to go to cl
b of article 84 for the purpose of finding out the qualification as to age
Clause c of article 581 clearly corresponded to el
c of article 84 and reading them together it would follow that a person standing for election as President would require such qualifications as may be prescribed in that behalf by or under any law made by Parliament
Further as el
c of article 581 lays down that a person standing for Presidential election has to be qualified for membership of the House of the People article 102 which lays down disqualifications for members of Parliament would also be attracted except in so far as there is a special provision contained in article 582 Thus cI c or article 581 would bring in such qualifications for members of the House of the People as may as prescribed by law by Parliament as required by article 84c
It will by its own force bring in article 102 of the Constitution for that Article lays down certain disqualifications which a presidential candidate must not have for he has to be eligible for election as a member of the House of the People
But it clear that what is provided in cl
a and b of article 581 must be taken from there and it is not necessary travel to cls
a and b of article 84 in the matter of citizenship and of age of the presidential candidate
Clauses aand b of article 581 having made a specific provision in that behalf exclude cls
a and b of article 84
There is nothing in the Amendment Act which makes any difference to that position for
if the intention of Parliament was that an oath similar in form to the oath for membership of Parliament had to be taken by persons standing for election to the office of the President there is no reason why a similar amendment was not made in article 581 a and why the form of oath not also prescribed either in the Third Schedule or by amendment of article 60
which provides for oath by a person elected as President before he takes his office
140H 141E 142B C The particular oath which a person standing for election as a member of Parliament has to take has been prescribed in the Third Schedule to the Constitution and it is only that oath which such a person has to take
However no form of oath is prescribed for a person standing for election as President anywhere in the Constitution and in the absence of such form
it is impossible to hold that taking of oath before standing for election as President is a necessary ingredient of eligibility for such election
The Amendment Act having not made any such provision with respect to those standing for election to the office of the President it cannot be open to the Election Commission to prescribe a form of oath for such persons by changing form III A mutatis mutandis
Such power cannot be spelt out of article 324 under which the Election Commission is conferred power to superintend direct and control the preparation of the Electoral Rolls and the conduct of elections
143G 144B Further
a comparison of the form of oath under article 60 for the President with form III B of the Third Schedule which prescribes the oath for a member of Parliament before he takes his seat
shows that even after election the President is not required to swear that he will uphold the sovereignty and integrity of India
The oath he takes is to preserve
protect and defend the Constitution and that he will devote himself to the service and well being of the people of India
the form of oath introduced by the sixteenth amendment for persons standing for election to Parliament and even after election was not considered suitable for a person standing for election as President or elected as President and that is why no form is prescribed by Parliament
143A C ii Any voluntary action which interferes with or attempts to interfere with the free exercise of electoral right would amount to undue 135 influence
It cannot take in mere canvassing in favour of a candidate at an election
If that were so it would be impossible to run democratic elections
It is difficult to lay down in general terms where mere canvassing ends and interference or attempt at interference to with the tree 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
145G 146C a There was nothing in the fetter of the Prime Minister which even remotely amounted to undue influence
As a leader of the party she was entitled to ask the electors to vote for respondent No 1 and the fact that she is the Prime Minister makes no difference to her right make an appeal of this nature
It is
said that the office of the President is a no party office and therefore an appeal of this nature should not have been made and must amount to undue influence
It is true that the office of the President is not a party office meaning thereby that after his election the President is no longer a party man
But that cannot take away the fact that in a democratic system persons who stand for election are candidates sponsored by parties for without such support no fine would have a chance of being elected
for the electors are mostly members of one party or other
149G 1SOB b Mere canvassing of support for a candidate can never amount to undue influence
There was no interference with the free exercise of electoral right by the electors even if the Ministers were sent to the various Sate capitals to canvass support for respondent No 1
148H c The fact that the Minister signed the letters as Chief Whip was of no consequence even if he had not done so all members of the Congress party in Parliament must be knowing that he was the Chief Whip
Just as a Minister has a right to canvass for support so has the Chief Whip
The fact that he asked the members to contact him after reaching Delhi could only be to know who had come and who had not and could not give rise to any inference of undue influence from the fact alone
There was nothing in the second letter also to show that undue influence was being exercised thereby
The two letters read together merely show that the Chief Whip of the Congress party was canvassing in favour of respondent No 1
There was nothing improper in members of the party being told in the course of canvassing that it would be better if they only marked their first preference and no other preference in a system where voting is by single transferable vote
Such a request of advice does not interfere with the free exercise of their electoral for the electors still would be free to do what they desired inspite of the advice
150B 151D d There can be no objection if the leader of the party indicates to the members of his party how to vote in order to ensure that votes may not become invalid for want of knowledge of the procedure of voting
Further if the leader of the party indicates to members of his party for whom to vote he is merely canvassing with his own party men to support the candidate of the party
The mere fact that the person who canvasses is a Chief Minister does not mean that he is exercising undue influence in the sense of interfering with the free exercise of the electoral right
Once canvassing is permissible and in a democratic set up where parties put up candidates for election it is not only permissible but necessary
it follows that if a leader of the party asks members of his party for whom to vote he is merely canvassing
The voting is after all secret and every elector is free to vote for whomsoever he likes even though he may have been asked by the leader to vote for a particular candidate
152C F 136 It is open to Ministers to canvass for candidates of their party standing for election
Such canvassing does not amount to undue influence but is proper use of the Minister s right to ask the public to support candidates belonging to the Minister s party
It is only where a Minister abuses his position as such and goes beyond merely asking for support for candidates belonging to his party that a question of undue influence may arise
But so long as the Minister only asks the electors to vote for a particular candidate belonging to his party and puts forward before the public the merit of his candidate it cannot be said that by merely making such request to the electorate the Minister exercises undue influence
The fact that the Minister s request was addressed in the form of what it called a whip is also immaterial so long as it is clear that there is no compulsion on the electorate to vote in the manner indicated  149A C RB Surendra Narayan Sinha vs Amulyadhone Ray  43 Ors 1940 Indian Election Cases by Sen and Poddar Case No XXX at p 188
Linge Gowda vs Shivananjappa
1953 VI ELR 288 Amirchand vs Surendra Lal Jha 1954 X ELR 57 Mast Ram vs
section lqbal Singh 1955 XII ELR 34 Radhakrishna Shukla vs Tara Chand Maheshwar 1956 XII ELR 378 N Sankara Reddi vs Yashoda Reddi 1957 XIII ELR 34 Dr YS Parmar vs Hira Singh Pal
1958 XVI ELR 45
Triloki Singh vs Shtvrajwati Nehru 1958 XVI ELR 234 and Jayalakshmi Devamma vs Janardhan Reddi 1959 XVII ELR 302 referred to