Sri Sntya .1Va1ain

Sill th

Dist1ict Enginr:<r,

P. W.D.

Mudholkar J,

Ftbruary fl.

114 SUPRE:IIE COURT REPORTS [.962] St.:I P.

crossing of the' Roadways buses over t.he ferry betwe<'n l\farch 16, 191">4, and the dnto on which the licence in favour of the appellant expired. • The costs of the appellant here and in the High Court will lrn borne by the r•,8pondents.

Appeal allou:ed.

IXDER LAL v.

LAL SINGH

(P. B. GA.JJ::>DRAC:ADKAU, A. K. SARKAU e.ncl

IC N. \VANCHOO, JJ.)

Elccfion~--Cornpf Praclicr-Faf.i; e statement in relatt'on to 7ir.u; o11al 1;/ir1ractcr ()Y r:onducl of canitidaU-StaU.nient alleging ]Htrr}, osing of iof-es-lj tf'dales to pi.rsonal charactr:r-Rcpresnla rion of II" l'eop!c Act, 1951 ( 4:J of Jli:jl), "· 123 (4).

Respondent I was declared rlected to the Legislative Asscrnbly. llis election \\'as challenged, inter a./ia, on the ground that he had committed the rorrupt practice under s. 123 (4~ of the Rep"sentation af People Act, 1951 of making false statements in relation to the personal character or conduct uf H.espo11dent 2, a defeated candidate. The staterrcnts "ere rontained in a pamphlet issued by the agent of Respondent I ,, ith his consent.

Among other statements the patnphlct contained a false statement that the Respondent 2 \\'as ''purchasrr of the cpponents of the Congress hy rncans of moneyn.

Respondent I cont, nded that the staten1ent related to the public: or political character of Respondent 2 an<l not to his private character and did not fall within the mischief of s. 123 (4).

!If-Id, that the statement rlated to the personal character of l{t"spondent 2 and Respondent 1 "'"as guilty of thr. corrupt practice under s. 123 (4) of the Ar.t. The offending staternent amounted to an allegation that Respondent 2 bought the votes of the opponents of the Congrcs by offering bribes.

Bribery \Vas itself a corrupt practice and an allegation of bribery involved moral t11rpitude anrlclearly and unfquivocally affected the private character of Respondent 2.

CrVIL APPELLATE JURISDICTION: Civil Appeal No. 280 of 1961.

Appeal by special le!llle from the judgment and order dated August 2, 1960, of the Rajasthan High Court in D. E. Civil Misc. (Election) Appeal No. I of 1960.

G. 8. Pathak, A. V. Viswanatha 8astri, 8. N.

Andley and P. L. Vohra, for the appellant. ·

G. C. Mathur, for the respondent No. 2.

1962. February 8. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This appeal by special leave arises out of an election petition filed by the appellant challenging the validity of the eleotion of respondent No. J, Lal Singh on several grounds.

The appellant is an elector in the Chittorgarh Constituency and the election which led to the present petition was held in March. 1957, for the Rajasthan Legislative Assembly from the said constituency. As a result of the election, respondent No. 1 was declared to have been duly elected on the 11th March, 1957. He secured 7272 votes whereas respondent No. 2 Laxman Singh s/o Maharawal Sir Bijey Singh secured 7261 votes and respondent No. 3 Chhogalal secured 569 votes.

The appellant's cqse was that respondent No. l's election was invalid inasmuch as he had practised corrupt practices at the said election. According to the appellant, respondent No. l procured or abetted or attempted to 'procure either by himself or by his agents or by other persons with his connivance or that of his agents the reception of invalid votes and .as a result of the said votes, the result of the Election had been materially affected. The appellant stated in detail the manner in which the said invalid votes had been procured. The appellant further pleaded that respondent No. l, his agents and other persons with the connivance of respondent No. I or that of his agents published such

' 1861

/ndtr Lal v.

Lal Singh

lndv L•l

Lal Sinih

Go; ir1dragarllr.ar J.

116 SUPRE::\fE COURT REPORTS [1962) SUPP.

stR.tements of facts (Exts. 3 & 6) which were false nnd which thev either bolieved to be false or did not believe . to ·be true, in rrlation to the personal character or conduct of' respondent Xo. :! whirh were likely to prejudice tho prospect of respondent Ko. 2 at the election. It is on thrse two grounds

that the appellant claimed a declaration that the election of respondent ;\o. l was im-.ilid.

He also claimed that reRpondent No. 2 should be declared to have bl'cn validly elected.

ReRpondent No. 2 filed his written statement supporting the petition but he did not appear before the Tribunal at the hearing. RcRpondent No. 3 did not appear at all, while respor.dPnt No. I denied all the allegations made by the appt>llantand contended that the election petition filed by the appellant should he dismissed.

On the pleadings of th<' parties, the Election Tribunal framed as many as ~(j isnt>s. In substance

it held that the scvcrnl al!Pgations made by the appellant in respect. of the rccPipt of invalid votes had not been proved and so the first ground on which r<'spondent No. l's election was challenged by appellant, could not succeed.

In regard to the second ground on which rrspondcnt Xo. l 'H election was challenged by the appellant, the Tribu1rnl held that Ext. 3 had hecn published by the ageut of rcspo11dent No. I bnt; not with his expreRs consent and in regard to Ext. 6, the Tribunal was not Ratisfied that it hacl been published by respondent

o. l's agent.

Th:tt. is how even tho second grounrl made by the appellant disputing the Yalidity of respondent No. J's election did not sncc<'<'<L In the rPsult, the clt'ction petition was dismisHe<l.

Against the Haid decision, the ap]H•llant preferred an appeal in the RajaHthan High Court. Tho High Court confirmed the finding of the Tribunal on the first point in reg; ird t.o the receipt of invalid votes. It is true that tho High Court wa~ not

satisfied with the approach adopted by the Tribunal in dealing with this part of the oase and it thought that some of the reasons given by the Tribunal in support of its conclusions were not satisfactory.

lnder Lal

Lal Singh

Even so, the High Court felt that the final conclu- Gajendragadkar J, sion of the Tribunal was, on the whole, correct and need not be reversed. Thus both the Tribunal and the High Court have recorded findings against the appellant 0n the first part of his case.

In regard to the second contention raised by the appellant, the High Court has accepted the finding of the Tribunal about the publication of Ext. 3. In regard to the other document-Ext, 6, the High Court has reversed the conclusion of the Tribunal and held that the said document had been published for the benefit of respondent No. 1 and differing from the view taken by the Tribunal, the High Court has held that the publication. of both the pamphlets was with consent of respondent No. 1

and so was outside the purview of s. 100(2) of the Representation of the People Act 1951 (43 of 1951) (hereinafter called the Act). H •:wing thus found that the two pamphlets had been published by the agent of respondent No. l and with his consent, the High Court proceded to examine the question as to whether the material allegations made against respondent No. 2 by the said pamphlets were true or false.

The High Court held that the said material allegations were false and it came to the conclusion that they were calculated to effect prejudicially the prospects of the election of respondent No. 2.

The High Court was, however, not satisfied that the said allegations had relation to the personal character or conduct of respondent No. 2 and so it held that the corrupt practice alleged by the appellant against respondent No. 2 on the strength of the said two pamphlets under s. 123(4) of the act had not been proved. The result was that though the High Court differed from the Election Tribunal in regard to some of the findings recordecl

Lol Singh

118 SUPREME COURT REPORTS [1962] SUl'l>,

by the Tribunal on the second ground it;; ultimate conclusion was the" same as that orthe Tribunal.

Tho appeal preferred by the appellant was accordingly dismissed. lt is against this order that the appellant has come to this Court by Special leave.

In thi• appeal, the only question which we aru called upon to consider is whether the two pamphlets justify tho wntention of the appellant that respondent No. 1 has committed a corrupt practice under s. 153( 4). The question a.s to whether respondent Nu. l's election has been materially assisted by the receipt of invalid votes, is concluded by concurrent fiudiug of fact recordod against the appellant and su we have not allowed Mr. Sastri to dispute the correctness of that finding .

. Before dealing with the short point raised for our decision under s. 123(4) of the Act, it is necessary to sot out the material portion of the pamphlets on which the appellant's case uf currupt practice is based. The relevant portion in the pamphlet Ext, 3 to which objection is ta.ken by the appellant reads thus :-

"(1) Enemy of Democracy? (2) Agent of th:i foreigners strangling the freedom of Bharat?

(3) Supporter and collaborator of the conspiracy of Pakistani attack on Bharat?

(4) Bringer of tyrannical rule of Rajas in Rajastha.n?

(5) Destroyer of Hindu 2\Iuslim unity by raising tho slogan of Ham llajya.?

(6) Purchaser of the opponents of tho Congress by means of Money?

"Maharawal of Dungarpur, Shri Laxman Singh, who was defeated in the last election by thousands of votes, has come to mislead the people of Chittor, has come to push back the backward district of Chittor by 100 years, has come to destroy the peace and tranquillity of Chittor under cover of communal organisation, has come to provide means to the public to spend their hard earned money on drinking orgies, has come to intensify again the tynmny of Raja Maha.rajas in Rajasthan, has come to make a gift of Kashmir to the aggressor Pakistan, has come to enslave India again by collaborating with Pakistan and Pakistan's friends.

He is a friend of Raja Maharajas and an enemy of cultivators and labourers. He wants to grant la, nd to Bhoosw<tmis and thereby oust the cultivators and wants to establish once more his pa.gent by exploitation of the hard labour of cultivators," The other pamphlet contains substantially the same portion and so it need not be reproduced.

It is urged for thii appellant that in describing respondent No. 2 as the agent of foreigners strangling the freedom of Bharat, the personal character of respondent No. 2 has been falsely and adversely criticised. The same comment is made in respect of the description of respondent No. 2 as the supporter and collaborator of the conspiracy of Pakistani attack on Bharat and in support of this argument, reliance has been placed on the further statement in the pamphlet that respondent No. 2 had come to make a gift of Kashmir to the aggressor Pakistan and had come to enslave India by collaborating with Pakistan and Pakistan's friends.

It is also argued that describing respondent No. 2 as the purchaser of the opponents of the Congress by means of money, attracts the provisions of 123 ( 4). It is mainly on these three allegations in the

J96Z

InderSingh

Lal Singh

Gajendragadkar J.

1!162

Jndu 5;, igh

Lal Singh

Gqjtn-iragodhar J.

120 SUPH.EME COURT REPORTS (1962) SUPP.

pamphlet that the case of the appellant rests and tho argument is that by making theso allegations, tho private character of respondent :N'o. :! has been falsely vilified and that tho said vilification was reasona1Jly calculated to prejudice the prospects of

his election.

On the other hand, for respondent No. I .\-Ir. :lfathur who appcarnd u.m-icus curu.ie at our request has contended that :ill the thrne allegations, though false, cannot he said to touch or effect the private character of respondent No. 2.

He has argued that in dealing with s. l:.!3 (4), it is neceBSary to make a distinction between the personal or private oharaeter or conduct of a candidate and his public or political character. :\Ir. llfathur's contcntibn is that though the criticism made againt respondent No. 2 by tho impugned pamphlet may be extravagant, uuroasonablc and false, >it is nevertheless

criticism made against him in his public and politi

cal character and as such, a. 123 (4) cannot be invoked.

It is, therefore, necessary to determine the true scope and effect of the relevant provision in s. 123 (4). Section 123 dea!s with corrupt praoticea and amongst them, is the corrupt practice specified by sub-section (4). That sub.section roads thus :-

"The publication by 0: candidate or his agent or by any other1person, of any statement of fact which is false, and which he either believes to bo false or docs not believe to be true, in relation to tho personal character or conduct of any candidate, or in relation to tho candidature, or withdrawal, or retirement from contest, of any candidate, being a. statement reasonably calculated to prejudice the prospects of that candidate's election." It would thus be aeon that the publication in question must be by a candidate or his agent or by any other person ; the said publication should be

in regard to a statement of fact which is false and which he either believes to be false or does not believe to be true ; that it must have relation to the personal character or conduct of the candidate, or should have relation to the candidature, withdrawal or retirement from contest of any candidate and that it should be astatement reasonably calculated to prejudice the prospects of that candidate's election.

All the requirements of this sub-section, except one, are held to have been satisfied by the High Court.

The only requirement of the sub-section which has not been satisfied according to the High Court is that the statement has no relation to the personal character or conduct of respondent No. 2. Mr.

Sastri contends that this finding of the High Court is erroneous in law.

It would be noticed that in prescribing the requirement that the false statement should have relation to the personal character of the candidate, a distinction is intended to be drawn between the personal character of the candidate and his public

or political character.

The provision postulates that if a false statement is made in regard to the public or political character of the candidate, .it would not constitute a corrupt practice even if it is likely to prejudice the prospects of that candidate's election.

This assumption is presumably based on the theory that the electorate being politically educated and mature, would not be deceived by a false criticism against the public or political character of any candidate.

The public and political character of a candidate is open to public view and public criticism and even if any false statements are made about the political viewa of a candidate or his public conduct or character, the electorate would be able to judge the allegations on the merits and may not be misled by any false allegations. in that behalf. It is on this theory that false statements of fact effecting the public or political character of a candidate are not brought

Inder Lal

Lal Singh

Gajendragadk'lr J.

J9G2

Jr, dn Lal v.

Lal Si1:9h

G•jtndro1:adkdr J.

122 SUPRE~IE COUHT REPORTS [!DG5J Sl'PP.

within the mischief of ss. 123(4). In order that tho elections should be free, it is necessary that tho electorate should be educated on political i&mcs in a fearless manner and so, the Legislature thought that full and ample scope should bo left for free and fcarloss criticism by candidates against tho public and political character of their opponents.

But the position with regard to the private or persona.I character of the candidate is very different.

Circulation of false statements about tho private or. personal character of the candidate during tho period preceding elections is likely to work against tho freedom of election itself inasmuch as the effect created by false statements cannot be met by denials in proper time and so tho Constituency h<l<! t, o be protected against tho circulation of such false statements which are likely to effect tho voting of the electors. That is why it is for the protection of the constituency against acts which would be fatal to the freedom of election that tho statute provides for the inclusion of the circulation of false statements concerning tho private character of a. candidate amongst corrupt practices. Dissemination of false statements about the personal character of a candidate thus constitutes a corrupt practice.

Though it is clear that tho statute wants to make a broad distinction between public and political character on the one hand and private character on the other, it is obvious that a sharp and clear-cut dividing lino cannot be drawn to distinguish the one from the other. In discussing the distinction between the private cha.racter and the public character, sometimes reference is made to the "an

beneath the politician" and it iH said that 1f a statement of fact e.ffcc:ts the man beneath the politician it touches private character a:nd .if it affects the politician. It does not touch his private

- character. There may be some false statements of

fact which clearly affect the private character of

...

the candidate ; if, for instance, it is said that the C'Jtrididate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct and so if the statement is shown to be false, it would undoubtedly be. a corrupt practice. Similarly, if the economic policy of the party to which the candidate belongs or its political idealogy is falsely criticised and in strong words it is suggested that the said poliqy and idea. logy would cause .the ruin of . the country, that clearly would be criticism, though false, against the public character of the candidate and his political party and as such, it would be outside the purview . of the statute. But there may be oases on the border-line where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border-line that difficulties are experienced in determining whether the impugned false statement constitutes a corrupt practice or not. If, for instance, it is said that in his public life, the candidate has utilised his position for the selfish purpose of secur ing jobs for his relations, it may be argued that it is criticism against the candidate in his public character and it may also be suggested that it nevertheless affects his private character. Therefore, it is clear that in dealing with corrupt practices alleged under s. 123( 4) where we are concerned with border-line cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases, the false statement may affect both the private and the public character as well. .

In the present case, we are satisfied that the allegation made in the pamphlet that respondent No. 2 is a purchaser of the opponents of the Congress by means of money clearly attracts the

[nder Lal v.

Lal Singh

Ga;'u1dragadkar ./.

lllft

/11der J., al

lal ,'•lin:J'i

CajcndragadJ; a1 J,

' 124 SCPREllIE COCRT REPORTS [19132] SUPP.

provisions of ss. 123(4). In plain terms, the statement amounts to an allegation that respondent :N'o. 2 buys by offering bribes the votes of the opponents of tho Congress.

Bribery is itself a a corrupt practice and if it iH saicl ag:inst a candidate that the practices the corrnpt practice of

buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private chnracter. Olfeiing a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bribe loses reputation as an individual in the eyes of the public. The statement alleges that the bribes are offered by respondent No. 2 for the purpose of election and in that sense it may be that it is his public character which is falsely criticised.

But, in our opinion, it would be idle to oontend that it is a false statement only against the public character of respondent :N'o. 2.

Having regard to the moral turpitude involved in tho offering of tho bribe, the statement in question undoubtedly af(ects his private character as woll. Unfortunately, in dealing with this point, the High Court dotlS not appear to have considcrd this statement at all.

It has dealt with this problem in vory genera.I term~.

It has obsorved that tho impugned statements all refer to the Maharawal as one of thoso various persons of his class who as a body appear to be responsible in the opinion of the writer for tho political mischiefs referred to in the statements, and that a general reading of the document shows that the attack upon him is a part of a bigger organisation of individuals who do not appear to

be as the writer thinks, well inclined towards the progross of the country.

I.tis perfectly. trne that in dealin" with the contont1on that the false statement cotained in tho pamphlet amounts to a

corrupt practice under ss. 12314), it .is Bccessa.ry. to read the document as a whole before determmmg the effect of any particular objectionable statement.

i i ...

But reading the document as a whole, we see no justification whatever for the view expressed by the High Court that the criticism made in the document is directed against a body of persons and not against respond<'nt No. 2 himself.

The failure of the High Court to deal with the. several specific statements on which the argument of the appellant is based, has introduced a serious infirmity in its final conclusion. If only the High Court had considered whether the allegation that respondent No. 2 was the purchaser of opponents of the Congress by me11ns of money, we are inclined to think that the High Court would not have brushed aside the appellant's case with the general observations which it has made in its judgment. We are, therefore, satisfied that the appellant is right in contending that the false statement of fact to which we have just referred constitutes a corrupt practice under ss. 123(4) of the Act.

In that view of the matier, it is unnecessary to consider whether the other impugned statements of fact also attract the provisions of ss. 123( 4).

In the result, we must reverse the finding of the High Court that publication of the impugned pamphlets does not constitute a corrupt practice under ss. 1~3(4).

The result of this conrlnsion inevitably is that the election of responncnt No. 1 must be declared to be invalid because there is no doubt that the corrupt practioe proved in this case falls under section l OJ(b) and is outside the purview of section 100(2).

That takes to us the question as to whether respondent No. 2 can be declared to have been validly elected at the election in question.

This question will have to be necided in the light of provisions of section lOl(b) of the Aot.

The said section provides. inter alia, that "if any person who has lodged a petition ha8, in addition to callincr in question the election of the returned candidate,

lnder Lal v.

Lal Singh

Gajendragadkm J,

(ntftr Lal

Lal Singh

126 SUPREME COURT REPORTS [1962] SCPP.

claimed a declaration that any other candidate ha.a been duly elected and the Tribunal is of opinion that but for the votes obtained by such returned candidate by corrupt practices such other candidate would have obtained a majority of thu valid votes, the Tribunal shall after declaring the election of the returned candidate to he void declare such other candidate to have been duly elected." This question has not been considered by the High Court and it cannot be de<'ided unless the relevant fact.a arc examined on the merits and that normally would mean our reman11ing the case to the High Court for the decision of the point in acco1dance

wit.h law. We do not, however, propose to adopt such a course in view of the fact that it would be futile to give a11y further least' of life to this petition. The election which is challenged took place in 195i and in fact we are now on the verge of fresh elections which would take place this month.

That is why wo think it would serve no purposf

in sending the matter bark for the decision of the question as to whether on the evidence adduned in thn case, respondent No. 2 can be declared to have been validly elected.

The result iH, the a ppPal is allowed and the

elotion of r.~Hpondent No. I is set aside.

Since respondent o. I did nut appear, there would be no order as to costs.

Appml allowed.